Volume 20 — Ohio Circuit Court Decisions

By tbe common law, parties may contract for any rate of interest. Biddle v. Canty, 2 Dec. Be. 586 (4 W. L. M. 124) ; Watkinson v. Boot, 4 Olio 373; Beddish v. Watson, 6 Ohio 510. Construction of usury statute in this state. Iron By. v. Furnace' Do. 49 Ohio St. 102 [30 N. E. Bep. 616]; Bice v. Eassenpfhig, 45 Ohio St. 377 [13 N. E. Bep. 655]; McClelland v. Sorter, 39 Ohio St. 12. The tendency of courts in modern times is to extend the right to recover interest.

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

<p>ERROR to Ashtabula common pleas court;.</p>

<p>BILL OF EXCEPTIONS — DEPOSITIONS—EVIDENCE—ERROR.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Time foe Adveese Party' to Examine Bill of Exceptions.</p> <p>While counsel should be granted the full ten days allowed by statute for examination of a bill of exceptions and the making -of objections thereto, a miscalculation by the clerk of court as to the time to which counsel were entitled for examination of the hill, and the premature delivery of it by the clerk to the trial judge for his signature, is not such an irregularity as will deprive a reviewing court of jurisdiction, where it appears that the hill was filed in time by the plaintiff in error and no substantial injury will result from disregarding the irregularity.</p> <p>[For ’other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 358-436. —Ed.]</p> <p>‘2. Necessity of Masking Depositions at Trial.</p> <p>Failure properly to mark for identification certain depositions which were used at the trial below, or to attach them to the bill of exceptions, does not prevent their being treated as a part of the bill of exceptions, when it is reasonably certain-that they are the same depositions which were used in the court below, and that it was intended they should be made a part of the bill of exceptions but, owing! to an inadvertence, were not attached but filed with the original papers in the appellate court.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 300-305; 3 Cyc. Dig., “Depositions,” §§ 171-175 — Ed.]</p> <p>3. Erroneous Interrogatories not Prejudicial, when.</p> <p>Where interrogatories are submitted to a jury relating to matters of an evidential nature rather than to ultimate facts, no prejudicial error can be based on the receiving of a verdict in which some of the answers to the interrogatories are neither affirmative nor negative, but simply the words “don’t know.”</p> <p>4. Sufficiency of Evidence in Negligence Case.</p> <p>A verdict for damages in- a substantial amount for an injury alleged to be due to defective apparatus can not be based on evidence that is vague, speculative and theoretical; and where a verdict is based solely on such evidence, the judgment thereon should be reversed and a new trial granted.</p> <p>[Syllabus approved by the court.]</p>

<p>JUDGMENT AND DECREES.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. When Judgment Mat be Set Aside’ at Subsequent Term.</p> <p>A motion to set aside a default judgment and revive the cause for further-hearing can he heard at a subsequent term t-o that of the entry of the judgment only when the motion has been filed during the term of the.: entry of the judgment and continued.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Judgments and Decrees,”! 395. —Ed.]</p> <p>2. Appellate Court Can Dismiss Action and Adjudge Costs when Appellant-is in Deeault fob Petition.</p> <p>Under Rev. Stat. 6589 (Lan. 10171) the appellate court has authority to dismiss an action and adjudge the costs against the appellant on its. own motion when the appellant, who is the plaintiff, is in default for a. petition.</p> <p>[Syllabus approved by the court.]</p>

<p>DEATH — EVIDENCE—NEGLIGENCE.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>"What Amounts to a Scintilla op Evidence.</p> <p>Scintilla of evidence sufficient to warrant the sending of the questions in issue to the jury, in an action for the recovery of damages for the death by wrongful act, may be circumstantial; but it must be of such a nature as to show a reasonable probability that the injury complained of was the direct result of the alleged negligence.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 3787-3800; 6 Cyc. Dig., “Negligence,” §§ 666-680. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

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

<p>ASSESSMENTS — DRAINS AND DITCHES.</p> <p>Parker, Wildman and Haynes, JJ.</p> <p>1. Acquiescence to Ditch Improvement by Silence.</p> <p>Where an open county ditch, running through the land of plaintiff, is constructed into a brick sewer, thereby changing it from an open ditch to a closed sewer — and such change being a benefit to the property— one joint owner, after having silently stood by and allowed his land to be so benefited without objection, cannot resist the collection of the assessment therefor, because of irregularity of the proceedings.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 544-599. — Ed.] ft. Power or Joint Owner to Bind Others por Ditch Improvement.</p> <p>One of five joint owners of a tract of land within a municipality, and who has the actual management and control thereof, may bind his cotenants to a proposed improvement of a county ditch running through the premises by signing a petition therefor.</p> <p>[Si'' abus approved by the court.]</p>

<p>MotioN to dismiss action, made at close of evidence on behalf of plaintiff.</p>

<p>Appeal from Cuyahoga common pleas court.</p> <p>Hunt y. Hunter, 5 Circ. Dee. 90 (HR. 69); Schmidt v. Ellmwood Place, 8 Circ. Dec. 113 (15 R. 351); Columbus v. Sohl, 44 Ohio St. 479 [8 N. E. Rep. 299] ; 24 Am. & Eng. Enc. Law (2 ed.) 1081, Par. 9; Bellaire Stone Co. v. Steel Co. 66 Ohio St. 1 [63 N. E. Rep. 587] ; 30 Am. & Eng. Enc. Law (2 ed.) 128, 190; Donohue y. Protherton, 10 Dec. 47 (7 N. P. 367) ; Folz v. Cincinnati, 12 Dec. Re. 433 (2 Handy 261) ; Knccht v. Cincinnati, 9 Circ. Dec. 392 (18 R. 875) ; Miller v. Graham, 17 Ohio St. 1; Younglove v. Hackman, 43 Ohio St. 75 [1 N. E. Rep. 230] ; 25 Am. & Eng. Enc. Law (2 ed.) 1169; Dima v. Cemetery Assn. 42 Ohio St. 128 [51 Am. Rep. 809]; Elliott v. Perry, 41 Ohio St. 110; Baker v. Norwood (Vil.) 11 Circ. Dec. 371; 25 Am. & Eng. Enc. Law (2 ed.) 1178, note 8; Vindicator Pub. Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733]; Richardson v. State, 66 Ohio St. 108 [63 N. E. Rep. 593] ; Buchanan Bridge Go. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372].</p>

<p>CUSTOM AND USAGE — EVIDENCE—MASTER AND SERVANT —NEGLIGENCE.</p> <p>Haynes, Parker and Taggart, JJ.</p> <p>(Judge Taggart of the fifth circuit, sitting in place of Judge Wildman.)'</p> <p>1. Evidence or Custom oe Giving Signals Admissible.</p> <p>Evidence that it was the custom of a railway conductor to give warning to the train men assisting him in the making up of a train in the yards, is admissible upon the. question whether, knowing the custom, the conductor exercised ordinary care, and also upon the question of whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 689-693. — Ed.]</p> <p>2. Brakeman Has Right to Rely on Signals of Conductor.</p> <p>Tlie yard brakeman of a railroad company, in the pursuance of his duty, in making up a train in the yards of the company, it being desired to reverse the location of the cars on the track, and it being necessary in so doing to pass between the cars to couple them up, has a right to expect that the cars will not be moved without a warning to him from the conductor, where it has been the habit or custom of the conductor to keep track of the trainmen assisting him.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Custom & Usage,” §§ 106-112.— Ed.]</p> <p>3. Charge to Jury as to What Constitutes a Custom.</p> <p>Where the court in its charge to the jury refers to a habit as a custom, evidently meaning a custom in the general acceptation of the term, and not a custom having the force of law, it devolves upon plaintiff in error before he can be heard to complain thereof to frame a charge that would correct the alleged error, as a general exception to the charge, is not sufficient for that purpose.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 382-408; §§ 619-657. — Ed.]</p> <p>4. Nonprejudicial Error in Court’s Charge.</p> <p>Where rules of a railroad company in evidence go no further than to impose upon employes such duties and obligations as are imposed by the law, and such rules of law, in so far as they bear upon the issues, are ■correctly set forth in the charge of the court, the failure of the court to mention such rules of the company specifically or to state that such rules also impose the duties and obligations arising under the law, is not prejudicial error.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 702-781; 4 Cyc. Dig., “Error,” §§ 1718-1766 — Ed.]</p> <p>5. Evidence of Defective Car is Admissible, when.</p> <p>Where the only negligence charged is that of the conductor of a train in the operation whereof plaintiff intestate was injured, it may be competent to show defects in the cars of such train in explanation of the movements of the train and the conduct of the parties, though no recovery could be based upon such defects.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 675-698. —Ed.]</p> <p>[Syllabus approved by the court.]</p>

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

<p>CORPORATIONS — SALES.</p> <p>Marvin and Winch, JJ.</p> <p>(Henry, J., not sitting.)</p> <p>Purchaser of Ohio Corporation Stock on Open Market at Reduced Price cannot Recover Purchase Money from President for His Alleged Misrepresentations in Signing Certificates.</p> <p>•One who purchases stock in an Ohio corporation on the open market for about 25 per cent of its face value, without inquiry as to the ■assets of the company or the representations made upon the face of its icertificates of stock, cannot, upon the subsequent insolvency of the com■pany, recover the amount paid for said stock from the president of •the company in an action for deceit, upon an alleged misrepresentation made by him when he signed certificates of stock certifying that •they were “fully paid and nonassessable,” notwithstanding said president knew that upon the original issue of said stock property greatly overvalued had been received by the company in payment for it.</p> <p>|[Syllabus by the court.]</p>

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

<p>DIVORCE AND ALIMONY — ERROR.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>Necessity oe Filing Bill of Exceptions in Ebeor Pboceedings.</p> <p>Where upon an application to set aside a decree of divorce on the ground that plaintiff had no actual notice of the pendency of the action against her, service having been had by publication, the court finds against such claim, the appellate court cannot determine whether or not such question was correctly decided unless a hill of exceptions containing the evidence submitted in support of the application is filed with the record.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 19-49. —Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR — JUDGMENTS AND DECREES.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Opening Decree for Divorce to set Aside 'Service by Publication.</p> <p>Revised Statute 5355 (Lan. 8881), providing for the opening of judgments where service was had by publication and no actual notice was had thereof, has no application to divorce cases.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Judgments and Decrees,” •§§ 1093-1241; 3 Cyc. Dig., “Divorce and Alimony,” §§ 170-184. — Ed.]</p> <p>2. Burden of Proving Want of Notice of Pendency of Suit.</p> <p>Upon one who seeks to have a judgment, obtained on service by publication, set aside on the ground that no actual notice of the pendency of the suit was had is imposed the burden of proving that he had no such notice; and a record showing that no evidence or proof was produced on the hearing of such application would disclose that the court did not err in overruling the same.</p> <p>3. When a Record may not be Corrected in Error Proceedings.</p> <p>Where a party prosecuting error with full knowledge of the state of the record, and of what actually transpired in the court the judgment whereof is to be reviewed, voluntarily submits the cause to the reviewing court, a motion of such party, after judgment of such reviewing court against him, to set the same aside on the ground that the record which he so ■submitted to the court is incorrect in some particular, will be overruled, especially where the reviewing court is clearly of the opinion that the record changed as desired by such party would still require the same judgment.</p> <p>[For other cases in point, ábe 4 Cyc. Dig., “Error,” §§ 1167-1185. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>DRAINS AND DITCHES — MUNICIPAL CORPORATIONS— PARTIES.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Taxpayer oe Unincorporated Village Cannot Sue in Behale oe Village.</p> <p>An individual taxpayer of an unincorporated village having no solicitor cannot, under Rev. Stat. 1778 (Lan. 3281; B. 1536-668) which provides for suits by a taxpayer on behalf of a municipality, bring an action in his own name solely on behalf of the municipality and against the county commissioners to restrain them from proceeding under provisions for the improvement of a county ditch lying partly within the limits of the municipality.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 3251-3293. — Ed.]</p> <p>2. Constitutionality of Provision for Petitioning for Ditch Improvement by Municipality.</p> <p>Sections 4483, 4484 (Lan. 7667, 7668), providing procedure for the petitioning by a municipality, through its mayor, for the improvement of a county ditch lying partly within the municipal limits, is not unconstitutional for not providing for notice to property owner or for appeal, or for jury, as such sections are to be taken as part of the entire chapter applying to ditches, wherein provision is made for said matters.</p> <p>[Syllabus approved by the court.].</p>

<p>ERROR — EVIDENCE—MASTER AND SERVANT.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>.1. Pleading oe Breach oe Service Contkact.</p> <p>In an action for damages by a servant against the master for discharging him before his time of service has expired, it is the duty of the master to aver and prove that the discharge of the servant was for reasonable cause, and a charge of the court, “that the burden of proof rests upon the servant to show that the discharge was without any just cause therefor,” is error.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 1129-1139. — Ed.] 2, Examination oe Evidence in Error Proceedings.</p> <p>Where the whole evidence adduced upon the trial is made part of the record by a bill of exceptions, the court in determining whether the judgment should be reversed will examine the evidence as well as the . i charge with a view to determine whether under all the circumstances substantial justice has been done and if it has, the judgment will not be reversed for error in the charge.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1620-1624, 1718-1730, - 1660. — Ed.]</p> <p>[Syllabus by the court.]</p>

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

<p>CONTEST OF ELECTION.</p> <p>Jones, Walters and Cherrington, JJ.</p> <p>1. Necessity of Averment of Contestee's Residence.</p> <p>In a contest of an election for common pleas judge in a subdivision composed of two counties, failure to aver that the contestee is a resident of the county in which the action is brought does not deprive the court of jurisdiction.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 266-271. — Ed.]</p> <p>2. Admissibility of Parol Evidence of Destroyed Ballots.</p> <p>Where ballots have, been destroyed by the judges of election, which the statute does not require shall be destroyed, oral testimony is admissible in a contest of, the election to show how these ballots came to be destroyed, and for whom they were voted, and how they were marked.</p> <p>3. Parol Evidence to Identify Poll Books and Tally Sheets. .</p> <p>The will and judgment of voters cannot be rendered ineffectual through a disregard by the judges of election of their duty as laid down in the statute, whether such disregard be due to fraud, accident, mistake, misapprehension or negligence; and where such omitted duties with reference to the ballots cast were of a ministerial character, oral evidence is admissible to show the true character of the ballots as to which there is doubt, and to identify with certainty the poll books and tally sheets, and when the ballots in question are found to be truthful, they should be counted for the candidate for whom the voters intended they should be counted if that intention can be ascertained.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 284-292. — Ed.]</p> <p>4. Sufficiency of Marking Vote for Nonpartisan Candidate.</p> <p>Inasmuch as a single candidate on a nonpartisan ticket has no party emblem and no one else can go on that ticket, the printing on the nonpartisan ticket of words indicating various offices to be filled and voted for, with a circle above and blocks outside of the column will be regarded as surplusage; and if a voter makes a mark above or below or on the side or at the top of the column occupied by the name of the nonpartisan candidate, his intention to vote for such candidate is clearly indicated and the ballot should be counted.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 175-181. — Ed.]</p> <p>5. Right of Residents of Illegal District to Vote.</p> <p>Where territory is transferred from one township to another by an unconstitutional statute, electors in such territory are not thereby made legal voters of the township to which it is sought to attach the territory.</p> <p>6. When Voter may be Compelled to Tell How He Voted.</p> <p>While the law does not permit the questioning of a legal voter as to how he voted, and an illegal voter might decline to answer on the ground that his answer might tend to incriminate him, yet where an illegal voter does not claim his privilege of refusing to testify, but voluntarily discloses that he did vote, he may be compelled to tell for whom he voted.</p>

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

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

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

<p>COUNTIES — CONTRACTS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>No Accounting mat be Had nob Work Done for a Countt on Invadid Contract.</p> <p>A contract between county commissioners and one who undertakes to pike a certain county highway is invalid when no record of the commissioner’s meeting has been made, and the auditor’s certificate has not been filed or recorded, as required by Rev. Stat. 2834b (Dan. 4286), and cannot be enforced against the county; nor will an equitable accounting be granted for the labor and material expended on the improvement of the road.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Contracts,” §§ 2887-2895; 3 Cyc. Dig., “Counties,” §§ 410, 411; 6 Cyc. Dig., “Municipal Corporations,” §§ ¡977-1044. — Ed'.]</p> <p>[Syllabus approved by the court.]</p>

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

<p>EQUITY — SPECIFIC PERFORMANCE.</p> <p>Swing, Giffin and. Smith., JJ.</p> <p>Specific Performance of Contract to Seel Realty not Decreed, when.</p> <p>Equity will not decree specific performance to a purchaser of three separate lots where he brings action for possession of only one of them, and later, after the value of the lots has materially increased, offers to. take all three lots.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Specific Performance,” §§ 1-7.— Ed.]</p> <p>[Syllabus approved by the court.]</p>

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

<p>INTEREST AND USURY — PARTNERSHIP.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Burden and Sufficiency of Proof as to Usuby.</p> <p>Where usury is pleaded as a defense to a written instrument in contradiction to the terms of such instrument, the burden is on the party so asserting it, and the plea must be supported by clear and satisfactory evidence.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Interest and Usury,” §§ 508-‘510. — Ed.]</p> <p>25. Usury Law not Applicable to Contract fob Advancing and Hazarding Money in Business.</p> <p>Where one person hazards, in a business to be conducted by himself and others jointly, or by such others for his benefit, money which is by agreement subjected to the risks of the business, the law as to usury does not apply.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Interest and Usury,” §§ 402-411. — Ed.]</p> <p>3. Advancements foe Joint Venture not Usurious Although Profits are Liquidated.</p> <p>An agreement whereby the first party thereto advances sums of money to be used fey the second parties on conducting a business of making usurious loans and purchasing time certificates of wage earners, the profits and losses of such business to be divided and borne equally fey such parties, is not usurious and is not made so by subsequent amendment whereby the first party promises to accept a stated per cent on the moneys so advanced, as liquidated profits, or in lien of profits. The original agreement as to apportionment of losses remained unchanged.</p> <p>[Syllabus by the court]</p>

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

<p>Error to Mahoning common- pleas court.</p>

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

<p>INSURANCE — ESTOPPEL.</p> <p>Donahue, McCarty and Taggart, JJ.</p> <p>Insured not Estopped by Accepting Policy, when.</p> <p>A mutual fire insurance company issuing a policy without the word “mutual"' conspicuously printed therein, as provided by Rev. Stat. 3653 (Lan. 5864). and inducing its acceptance by falsely and fraudulently representing that there would be no contingent liability thereon, acts unlawfully and commits a fraud .upon persons induced thereby to enter into an agreement with the company. Hence, where the insured informed the agent of a company that he would not accept a policy in a mutual company, or in a company wherein there was such contingent liability for future assessments and there was sent him through said agent, a paper writing, in form and appearance like unto a standard cash policy of insurance, which was received by him after paying the sum specified therein as the cash premium, and placed with other like papers without critical inspection, where it remained until he received notice to pay an assessment thereunder, several months later, he did not enter into an undertaking to ac-eept such policy, nor is he estopped from denying liability thereunder.</p> <p>[Syllabus approved by the court.]</p>

<p>MASTER AND SERVANT — NEGLIGENCE.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>'.Master's Liability foe Injuries to Servant while Eating his Dinner in a Building Habitually so Used.</p> <p>A corporation, permitting its servants for a number of years habitually to use a building on the premises as a place to deposit their dinner pails while at work, and in which to eat their dinner, owes such servants the duty not to injure them by its negligence while they are using said building in the customary manner; and if a servant is injured while eating his dinner there, through the want of ordinary care on the part of the corporation, it is liable, although the building is used for other purposes, and although the servant would not have been injured had he remained at his usual place of work.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 91-100. — Ed.]</p> <p>[Syllabus by the court.]</p>

<p>DEEDS — EVIDENCE.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>(PAROL PROOF THAT CONSIDERATION OF DEED EXPRESSING VALUABLE CONSIDERATION 'WAS Love and Affection, Admissible. '</p> <p>In an action for the distribution' of a decedent’s estate coming by inheritance, parol evidence is admissible to show that a deed which, upon its face expresses a valuable consideration, was in fact a gift for natural love and affection and as an advancement. The case of Gowden v. Oow-den, 28 O. C. C. 71, overruled.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Deeds,” §§ 119-125. — Ed.]</p> <p>.[Syllabus by the court.]</p>

<p>WILLS.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>'V?ife Having Devised Residuary Estate op Her Husband in Accordance with His Whjg, Dying before Him, Makes no Disposition op the Residue.</p> <p>Testator provided by his will, “I will and direct that my wife, Dorothy Hoyle, shall be allowed to dispose of all the rest, residue and remainder •of all my estate and effects (not hereinbefore disposed of) by will or .otherwise as she deems just and prudent, previous to her decease, to •take effect after her death.” Three years afterwards the wife made a will disposing of the residue of her husband’s property not specially disposed of by him; stating in her will that the disposition was made in .accordance with the will of her husband. The wife died twelve years tbefore her husband: Held, the wife had no power to dispose of the residue of the estate of her husband; that he died intestate as to such residue and that his heirs at law took the same by descent.</p> <p>([Syllabus by the court.]</p>

<p>CONSTITUTIONAL LAW — CONTRACTS—CORPORATIONS—ME= CHANICS’ LIENS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Inalienable Right to Contract Applies to Corporations.</p> <p>The inalienable right to acquire property involves tbe right to make contracts with reference to property and that right appertains not only to individuals but also to private corporations and to municipalities. And applying the holdings of the Supreme Court in Palmer v. Tingle, 55 Ohio St. 423, and Cleveland v. Construction Co. 67 Ohio St. 197, the legislature has no more right to alienate or qualify the power of a private corporation to contract than it has an individual.</p> <p>[For other cases’in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 341-367; “Contracts,” §§ 1232, 3210-3216; '6 Cyc. Dig., “Mechanics’ Liens,” §§ 5-16.— Ed.]</p> <p>2. Revised Statutes 3231-1 (Lan. 5135) Unconstitutional.</p> <p>Revised Statutes 3231-1 (Lan. 5135) relating to liens for labor and material furnished certain public woi-ks, etc., is applying the principles and on the authority of Palmer v. Tingle, 55 Ohio St. 423 and Cleveland v. Construction Co. 67 Ohio St. 197, unconstitutional.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Mechanics’ Liens,” §§ 5-16. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>WILLS.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>''Widow a Trustee Under a Will for the Remainder-men, When.</p> <p>Where testator gave all of his property to his widow in the following language: “For the term of her natural life, and with full power to hold and dispose of part or all of the same for her use and benefit as she may see fit. Upon the death of my said wife, if there should be any residue of said estate, it is my will that such residue shall be divided equally among my four children,” the widow is a quasi trustee for the remainder-men, the testator’s children, and a petition alleging that she is wastefully using funds of the estate, has removed from the state and that the remainder-men fear that the estate will be dissipated, calls for an answer from her and that such relief may be granted as the circumstances require.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 829-834. — Eld.]</p> <p>[Proof of this decision and syllabus has been submitted to Judge Winch ¡and corrected.] '</p>

<p>INTOXICATING LIQUORS.</p> <p>Hurin, Haynes and Wildman, JJ.</p> <p>(Judges Haynes and Wildman of the sixth circuit, sitting in place of Judges Norris and Donnelly.)</p> <p>BREWING Company Cold Storage House Liable por Dow Tax.</p> <p>A brewing company, manufacturing and selling beer at wholesale, which maintains a cold storage house in a location separate from its manu-factory, and from which cold storage house daily deliveries of beer are made to customers on orders previously taken by a soliciting agent, thereby becomes a trafficker in intoxicating liquors within the meaning of Rev. Stat. 4364-9 (Lan. 7248) and is subject to the Dow tax provided for by that act.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Intoxicating Liquors,” §§ 86>, 87. — Ed.]</p> <p>[Syllabus by the court.]</p>

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

<p>ASSESSMENTS — ERROR.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Reassessment of Unpaid Portion of Invalid Assessment.</p> <p>A street improvement assessment having been set aside after settlement has been made as to part of the lots and lands affected, a reassessment of the lots with respect to which there has been no settlement is not invalid because the lots covered by the settlement are omitted from the reassessment.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 385-405. — Ed.]</p> <p>2. Effect of Descbiption of Unaffected Lands in Improvement Obdinance.</p> <p>The fact that a parcel of land described in a special improvement ordinance is not specially assessed does not affect the validity of the assessment, provided such parcel is not specially benefited by the improvement.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 385-405; 6 Cyc. Dig., "Municipal Corporations,” §§ 1280-1284.- — Ed.]</p> <p>3. Construction of Nonprejudicial Irrequlabities in Improvement Proceedings.</p> <p>The principle that in error proceedings when error is shown it is presumed to be prejudicial, does not apply to irregularities in apportioning improvement assessments; such cases are governed by the principle of liberal construction provided for in Rev. Stat. 2327 (Lan. 3679; B. 1536-280).</p> <p>[For other cases in point, see 4 Cyc. Dig., “Error,” §§ 466-474. — Ed.]</p> <p>4. Informality in Improvement Assessment must Be Prejudicial.</p> <p>An informality in an improvement assessment is not sufficient grounds for setting aside the whole assessment unless it is shown that prejudice has resulted to the plaintiff by reason of such informality. ' )</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 535-537. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>ATTACHMENT AND GARNISHMENT — EXEMPTIONS — JUSTICE OF THE PEACE.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>1. Who abb Residents of this State under oub Exemption Laws.</p> <p>Where a defendant was at the time of the commencement of a proceeding’ in attachment against him, indebted to the plaintiff in the sum of $22.98-for groceries furnished as necessaries to his family, and he had for a long time resided in the city and county where such action was begun, and was living with his wife and children, but was about to remove his family to Canada, and had his goods loaded on a car, but his intention was to return in two years or more or as soon as his job was completed, he was at the time of levying of this attachment a resident of Ohio, and entitled to exemptions, as the head of a family. For he is a resident of this state, under our exemption laws, and is actually in the state, and has his home here. And when one has acquired a residence here he cannot lose it and become a nonresident by simply determining to remove elsewhere, without actjial removal. ’</p> <p>2. Who Entitled to Exemptions in Lieu of Homestead.</p> <p>Under Rev. Stat. 5441 (Lan. 8970) where neither the defendant nor his wife is the owner of a homestead, and is as in this case a resident of Ohio, he is entitled to property of greater value than that here attached, which is valued at $400, in lieu of a homestead; and a failure in his motion, to specify under which clause or section of the statutes he made his selection, is not fatal, for he must be presumed to have made it under thesection of the statutes which entitled him to the exemption, which is Rev. Stat. 5441 (Lan. 8970).</p> <p>[For other cases in point, see 4 Cyc. Dig., “Exemptions,” §§ 87-92. — Ed.]</p> <p>3. Demand for Exemptions may be Made before Justice.</p> <p>Where the defendant in an attachment proceeding made his claim for exemptions in lieu of a homestead to a justice of the peace by filing motion to discharge the attachment officer who held the property, the justice has jurisdiction to entertain and dispose of the contention, and the demand was not made to the wrong person.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Exemptions,” § 77. — Ed.]</p> <p>4. Claim for Necessaries Entitles one to an Attachment.</p> <p>Under Rev. Stat. 6489 (Lan. 10066) the fact that a suit is brought for necessaries, authorizes the issuing of an attachment without reference to-whether any other of the causes provided in the statute existed; and plaintiff may have an attachment for such cause alone.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Attachment and Garnishment,”’ §§ 41-43. — -Ed.]</p> <p>[Proof of this decision and syllabus has been submitted to Judge Marvin and corrected.]</p>

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

<p>ANIMALS — CRIMINAL LAW AND PRACTICE — PRINCIPAL AND AGENT.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>1. Pleas in Bab op Peosecution fob Cruelty to Gelding Mule not Sustained’ IN PROSECUTION FOB CRUELTY TO MABE MULE.</p> <p>Where the owner of a mare mule is prosecuted for cruelty to the same, by causing his agent or driver to work it while its shoulder and chest were sore thus causing it much pain, a plea in bar will not be sustained, in which it is urged that the offense was a part of another offense of a similar nature committed on the same day for which he was prosecuted and convicted for cruelty to a brown gelding-mule, working ’in a different team, by a different driver, but on the same job, for the two acts, cruelty to the gelding, and cruelty to the mare, were two separate and distinct offenses committed by different agents of the principal.</p> <p>2. Pbinclpal Responsible fob Act Done by Agent in Course of his Employment. _</p> <p>The owner of mules being driven by his agents, without his having any personal knowledge of the condition of such mules, is nevertheless responsible for acts of cruelty committed by such agent upon such animal in the course of his employment and with the apparent authority of the principal.</p> <p>[For other cases in point, see 1 Cye. Dig., “Animals,” § 100; 3 Cyc. Dig., “Criminal Law and Practice,” §§ 122-125, 379; 7 Cyq, Dig., “Principal and Agent,” §§ 27'6, 281, 328-334, 428-444.]</p> <p>[Proof of this decision and syllabus has been submitted to Judge Marvin and corrected.]</p>

<p>INSURANCE — PLEADING.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Plaintiff Need not Anticipate Adversary’s Defense.</p> <p>Where, in an actibn on an insurance policy, the plaintiff has been released from the performance of any of the conditions in the contract, he should aver such facts in his petition; hut matters óf a purely defensive nature need not he met earlier than at the filing of the reply.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Pleadings,” §§ 342-356. — Ed.]</p> <p>2. Insurance Company Estopped to Dispute Acts of Agent in Taking Application for Insurance.</p> <p>Where the agent of the company, in filling out the application for a policy of insurance against loss hy burglary' or larceny, construes a certain question asked of applicant, to suit the circumstances of the particular case, he acts for the company; and such company cannot escape liability on the policy on the ground of the incorrectness of a statement in the application, based on a contrary construction.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Insurance,” §§ 669-703. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>CITY SOLICITOR — FEES—MANDAMUS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>City Solicito» Prosecuting Attorney of Police Court, Effect of Appointment of Assistant.</p> <p>The appointment of an assistant prosecuting attorney for the police court does not have the effect of terminating the tenure of the city solicitor to the office of prosecuting attorney of the police court. The city solicitor continues to be ex ofiicio police court prosecutor and the county auditor may be compelled, by mandamus, to recognize such solicitor’s claims to the compensation, to which he is entitled by virtue of the statute, Lan. 3125 (B. 1536-663) construed.</p> <p>Syllabus approved by the court.]</p>

Eeror to Cuyahoga common pleas court. ■ Cited and commented upon tbe following authorities: Clowry v. dowry, 8 Circ. Dec. 652 (16 E. 302) ; Rhude v. Rhude, 8 Dee. 684 (33 Bull. 273) ; Gasler v. Bowen, 1 O. S. C. D. 729 (39 Bull. 4); 14 Cyc. 628 and cases noted under 71; Earrigan v. Earrigan, 135 Cal. 397 [67 Pae. Eep. 506; 87 Am. St. Eep. 118]; Rathbtm v. Rathbun, 40 How. Pr. (N..

<p>ERROR to Cuyahoga common pleas court.</p> <p>Cited and commented upon the following authorities: Central Stock & Grain Exch. v. Chicago (Bd. of Trade), 196 Ill. 396 [63 N. E. Rep. 740] ; Chicago (Bd. of Trade) v. Grain Exchange, 98 Ill. App. 212; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Lester v. Buel, 49 Ohio St. 240 [30 N. E. Rep. 821; 34 Am. St. Rep. 556]; Soby v. Peo-pie, 134 Ill. 66 [25 N. E. Rep. 109]; Weare Com. Co. v. People, 209 Ill. 528 [70 N. E. Rep. 1076]; Bryant v. Telegraph Co. 17 Fed. Rep. 825; Forteribury v. State, 47 Ark. 188 [1 S. W. Rep. 58]; State v. Logan, 84 Mo. App. 584; Fullerton v. State, 75 S. "W. Rep. 534 (Tes.)'; McQrew v. .Produce Exch. 85 Term. 572 [4 S. W. Rep. 38; 4 Am. St. Rep. 771] ; Kirkpatrick v. Bonsall, 72 Pa. St. 155; Bradley v. Telegraph Co. 8 Dec. Re. 707 (9 Bull. 223) ; Morris v. Norton, 75 Fed. Rep. 912 [21 C. C. A. .553; 43 U. S. App. 739]; Phelps v. Holderness, 56 Ark. 300 [19 S. W. Rep. 921]; Gregory v. Wendell, 39 Mich. 337 [33 Am. Rep. 390] ; Irwin v. Williar, 110 U. S. 499 [4 Sup. Ct. Rep. 160; 28 L. Ed. 225]; Higgins t. McCrea, 116 U. S. 671 [6 Sup. Ct. Rep. 557; 29 L. Ed. 764] ; 1 Bishop, ■Grim. Law Sec. 355; State v. Kentner, 77 S. W. Rep. 522 [178 Mo. 487] ; North v. Phillips, 89 Pa. St. 250; Beveridge v. Hewitt, 8 Ill. App. 467; Pearce v. Foot, 113 Ill. 228 [55 Am. Rep. 414]; Tenney v. Foote, 95 Ill. 99; Cobb v. Prell, 15 Fed. Rep. 774; Kent v. Miltenberger, 13 Mo. App. 503; Tenney v. Foote, 4 Ill. App. 594; Christie-Street Com. Co. v. Board .of Trade, 94 Ill. App. 229; Chicago (Bd. of Trade) v. Commission Co. 14 O. F. D. 162 [115 Fed. Rep. 574]; Christie Grain <& Stock Co. v. Chicago {Bd. of Trade), 125 Fed. Rep. 161 [61 C. C. A. 11]; Chicago !Bd. of Trade) v. Kinsey Co. 125 Fed.. Rep. 72.</p>

<p>LANDLORD AND TENANT — JUDGMENTS AND DECREES— VENDOR AND PURCHASER.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Superior Rights op Lessee in Possession under an Imperfectly Executed Lease as against Purchaser with Notice thereof.</p> <p>Where a tenant has been in possession for a considerable period under an imperfectly executed lease, the writing will he treated as a contract for a lease, and as against a purchaser of the property having knowledge of the fact, who is seeking to oust the tenant, a decree will he granted directing that a valid lease he executed.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Landlord and Tenant,” §§ 65-68. —Ed.]</p> <p>2. Magistrate’s Judgment in Forcible Entry and Detainer not a Bar to Injunction Proceedings.</p> <p>An action in forcible entry and detainer in such a case, in which a judgment of ouster has been taken by the purchaser, is not a bar to injunction proceedings brought by the tenant to prevent interference with his possession.</p> <p>[For other cases in 'point, see 4 Cyc. Dig., “Forcible Entry and Detainer,” § 82. — Ed.]</p> <p>3. Tenant Taking Partner does not Effect Lease.</p> <p>The fact that the lease in its imperfect form was made to a tenant, who subsequently with the knowledge of the lessor brought in another as a partner with him in the business, would not operate under the statute to invalidate the agreement for occupancy.</p> <p>4. Where Rent to be Paid.</p> <p>In the absence of any stipulation to the contrary me leased premises is the place for the payment of rent, and' the lessor is not required to demand the rent to put himself in a position to claim a forfeiture but he should go to the premises in due time and give the tenant an opportunity to pay the rent there, unless there is a stipulation for the payment of the rent elsewhere.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Landlord and Tenant,” §§ 533-536. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

Where a public officer is in place and the discharge of his duties are interrupted or interfered with by one claiming title to the office, or by a mere meddler, injunction is the proper remedy. Reemelin v. Mosby, 47 Ohio St. 570 [26 N. B. Rep. 717]; State v. Craig, 69 Ohio St. 236 [69 N. B. Rep. 228] Rules of distinction between a public office and a public employment. State v. Wilson, 29 Ohio St. 347; State v. Brennan, 49 Ohio St, . 33 [29 N. E. Rep. 593]; 19 Am. & Eng. Ene.

<p>ASSESSMENTS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Bueden of Showing Benefit to Lots Omitted from Improvement Assessment.</p> <p>One seeking to enjoin a street assessment, on the ground that lots or lands that should have been assessed have been omitted, should make it appear that the omitted lots or lands derived some benefit from the improvement and therefore should bear a share of the burden of the cost thereof, and that a proper assessment, including the omitted lots or lands, would probably reduce the assessment on his property of which be complains.</p> <p>2. Benefits Derived from Improvement of Street, Basis of Assessment.</p> <p>To bring a case within the purview of Sec. 2275 Rev. Stat. (repealed 96 0. L. 96) requiring the payment of a part of the cost of a street improvement by the city because of the treatment of street intersections on abutting property, it should be made to appear that such intersections on abutting property are benefited by the improvement, and it is not sufficient to show that the intersecting streets are benefited by the improvement.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 309-383. — Ed.]</p> <p>[Syllabus by the court.]</p>

<p>Error to Cuyahoga common pleas court.</p> <p>Cited and commented upon by the following authorities: Collins v. Bingham Bros. 12 Circ. Dec. 825 (22 R. 533); Rogers v. Prushanshy, 13-23 O. C. C. 271; Cincinnati, W. & Z. By. v. Clinton Co. (Comrs.) 1 Ohio St. 77; State v. Eendle, 52 Ohio St. 346 [39 N. E. Rep. 947].</p> <p>Cited and commented upon by the following authorities: Whitney V. Cill, 8 Circ. Dec. 450 (15 R. 648) ; Palmer v. Tingle, 55 Ohio St. 423 [45 N. E. Rep. 313]; State v. Smith, 48 Ohio St. 211 [26 N. E. Rep. 1069]; Gorman V. Bepler, 7 Dec. 15 (4 N. P. 241); State v. Voris, 10 Dec. 451 (8 N. P. 16).</p>

<p>BANKRUPTCY.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>TRUSTEE IN BANKRUPTCY CANNOT MAINTAIN AN ACTION EX DELICTO.</p> <p>A trustee in bankruptcy cannot maintain an action in tort for conspiracy-in assisting a bankrupt to place his property beyond the reach of his. creditors against persons who are alleged to have performed their acts, of conspiracy during the pendency of the bankruptcy proceedings, but before the adjudication therein, where no allegation is made that any of the defendants received any portion of the bankrupt’s estate, and the-sole result of the conspiracy is to turn the bankrupt’s property into-money in his hands which he himself failed to account for to his trustee..</p> <p>[Syllabus by the court.]</p>

<p>ERROR to Cuyahoga common pleas court.</p> <p>Cited and commented upon the following authorities: Blackburn v-State, 23 Ohio St. 146; McGill v. State, 34 Ohio St. 228; Hayward v.. Calhoun, 2 Ohio St. 164; Eastman v. Wight, 4 Ohio St. 156; Parks v.. State, 4 Ohio St. 234; Kendrick v. Beppard, 23 Ohio St. 333; Watts v.. Buth, 30 Ohio St. 32; Beck v. State, 20 Ohio St. 228; George v. Surry f 1 Mood. & Malk. 576; 3 Phillips, Evidence 1323; State v. Tice, 30 Ore-457 [48 Pac. Rep. 367]; Paisley v. Snipes, 2 Brev. (S. C.) 200; Phoenix Nat. Bank v. Taylor, 113 Ky. 61 [67 S. W. Rep. 27]; Strong v. Brewer, 17 Ala. 706; Thompson v. Davitte, 59 Ga. 472; Fogg v. Dennis, 22 Tenn. (3 Humph.) 47; Jackson v. Van Dusen, 5 Johns. 144; Travers v. Snyder, 38 Ill. App. 379; 1 Wigmore, Evidence Sec. 693; 6 Enc-of Ev. 427-434; Bragg v. Colwell, 19 Ohio St. 407; Calkins v. State, ' 14 Ohio St. 222; Burdge v. State, 53 Ohio St. 512 [42 N. E. Rep. 594]; Myers v. Toscan, 3 N. H. 47; State v. Shinborn, 46 N. H. 497 [88 Am. Dec. 224]; State v. Hastings, 53 N. H. 452; Carter v. Jackson, 58 N. H. 156; Wilson v. State, 2 Ohio St. 319; Ide v. Churchill, 14 Ohio St. 372; Cantwell v. State, 18 Ohio St. 477; Pittsburgh, Ft. W. & C. By. v. Probst, 30 Ohio St. 104; Buck v. Mills, 8 Dec. Re. 246 (6 Bull. 665) ; Meyer v. Shroeder, 16 Dee. Re. 309 (10 Am. L. Rec. 309) ; Cooper v. State, 16 Ohio St. 328; Youmans v: Caldwell, 4 Ohio St. 71; Mack v. Great Western Dispatch, 2 Circ. Dec. 22 (3 R. 36); Meyer v. Cad-walader, 49 Fed. Rep. 32; People v. Feld, 149 Cal. 464 [86 Pac. Rep. 1100] ; People v. McCoy, 71 Cal. 395 [12 Pac. Rep. 272]; People v. Stokes, 103 Cal. 193 [37 Pac. Rep. 207]; People v. Chin Non, 146 Cal. 561 [80 Pac. Rep. 681]; Sheehan v. Hammond, 2 Cal. App. 371 [84 Pac. Rep. 340]; People v. Findley, 132 Cal. 301 [36 Pac. Rep. 472]; Gay v. Torrance, 145 Cal. 144 [78 Pac. Rep. 540] ; United States v. McKee, 3 Cent. Law Jo. 258; Mergentheim v. State, 107 Ind. 567 [8 N. E. Rep. 568]; State v. St. Glair, 16 Nev. 207; People v. Gaffney, 14 Abb. Pr. (N. S.) 36; Commonivealth v. Haines, 15 Phila. 363; Farrer v. State, 2 Ohio St. 54; Commonwealth v. Chauncey, 2 Ashm. 90; People v. Williams, 24 Cal. 31; Roe v. Taylor, 45 Ill. 485; Carter v. State, 77 Tenn. (9 Lea) 440; State v. Robinson, 20 W. Va.. 713 [43 Am. Rep. 799]; 12 Ene. PL & Pr. 552, 561 and foot note 3; People v. Kramer, 117 Cal. 647 [49 Pac. Rep. 842]; Rich v. Taylor, 20 Minn. 378; Boyd v. Slate, 82 Tenn. (14 Lea) 161; Johnson v. Root, 2 Cliff. 108 [13 Fed. Cas. 798]; Gleason v. Strauss, 5 Kan. App. 80 [48 Pac. Rep. 881] ; State v. Dumphey, 4 Minn. 438; State v. Dugan, 52 Kan. 23 [34 Pac. Rep. 409]; Commonwealth v. White, 147 Mass. 76 [16 N. E. Rep. 707]; Commonwealth v. White, 148 Mass. 429 [19 N. E. Rep. 222]; Manning v. Railway, 187 Mass. 496 [73 N. E. Rep. 645] ; Johnson v. State, 27 Tex. 758; Wiest v. Luyendyk, 73 Mich. 661 [41 N. W. Rep. 839]; Commonwealth v. Nash, 135 Mass. 541; Peacham Y. Carter, '21 Vt. 515; Rineheardt v. Potts, 7 Ired. (N. C.) 403; State v. Godwin, 5 Ired. (N. C.) 401 [44 Am. Dec. 42]; Omaha Fair & Exp. Assn. v. Railway, 42 Neb. 105 [60 N. W. Rep. 330]; Pitts. C. & St. L. Ry. v.. Porter, 32 Ohio St. 328; Devere v. State, 3 Cire. Dec. 249 (5 R. 509) ; Austin v. State, 42 Tex. 355; Kent v. State, 42 Ohio St. 426; Youle v. Brown, 49 Ill. App. 102; Mareen v. People, 190 Ill. 81 [60 N. E. Rep. 102]; State v. Murphy, 13 Wash. 229 [43 Pac¡ Rep. 44].</p>

<p>PARTITION FENCES — STATUTES.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>Act 97 O. L. 138, Repealing Provision for Removing Partition Pences, and Re-enacting and Amending other Provisions of Pence Law Requires Adjoining Owners to Build Partition Pences.</p> <p>Under the act of April 18, 1904 (97 O. L. 138; Rev. Stat. 4239-4243d; Lan. 7003-7014), owners of adjoining lands are required to build and maintain in good repair all partition fences between them in equal shares unless otherwise agreed upon between them in writing; although such lands may not be inclosed with fences.</p> <p>[Syllabus by the court.]</p>

<p>APPEAL — ATTACHMENT.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>'Duty op Common Pleas to Aeeirm ok Reverse Justice’s Ruling on Appeal prom Motion to Discharge Attachment.</p> <p>On appeal under Rev. Stat. 6494 (Lan. 10071) from an order by a justice of the peace, overruling a motion to discharge an attachment, the common pleas is* required to affirm or reverse the ruling appealed from and send its decision back to the justice which he is bound to enter as his final judgment. Not until this is done’can the aggrieved party go to a higher court on the whole case.</p> <p>[Syllabus approved by the court.]</p>

<p>WILLS.</p> <p>Hurin, Haynes and Wilüman, JJ.</p> <p>(Judges Haynes and Wildman of the sixth circuit sitting in places of Judges Norris and Donnelly.)</p> <p>Constbuction Off Will.</p> <p>A testator left all of his personal property and a life interest in his realty .to his widow. The will provided that, after the death of the widow, the real estate should be sold by the executor and the proceeds divided into nine parts, eight of which were given to specified heirs and one part was left undisposed of. The widow elected not to take under the will and received her statutory allowances of dower and year’s support. Upon the sale of the real estate by the executor under authority of the probate court: Held, (1) That the undevised one-ninth is first applicable to the payment of testator’s debts in exoneration of the real estate that was devised; and (2) That as the will contains no provision for the blending into one fund of the personal property . and the proceeds of the realty; but On the contrary treats the two as : distinct classes of property and contemplates a sale of the realty only after the death of the widow, the doctrine of equitable conversion does not apply and the widow is not entitled to a distributive share in the proceeds of the realty after its sale. HutcHings v. Davis, 68 Ohio St. 160 [67 N. E. Rep. 251], distinguished.</p> <p>[Syllabus by the court.]</p>

<p>ASSAULT AND BATTERY — DAMAGES—WITNESSES.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>1. Impeachment of Witness for Infamous Crimes Only.</p> <p>Only such conviction as could have been shown under the law as it formerly was in England and America for which a witness was rendered incompetent to testify can now be shown to impeach or discredit the witness. s</p> <p>2. Witness not Impeachable by Proof of Public Prostitution.</p> <p>A record of conviction by a police court is not admissible to impeach a witness, such conviction not being of an offense punishable by the statutes of Ohio, or for an infamous crime within the meaning of the fifth amendment to the federal constitution or Art. 1, Sec. 10 of the state constitution for which presentment by grand jury is required.</p> <p>'3. Damages for Assault and Battery in Sum of $450 not Excessive.</p> <p>Damages in the amount of $450 is not excessive for an assault and battery on a girl sixteen years of age by throwing her down a flight of stairs and severely injuring her; there being evidence that the assault was an outrageous one for which there could be no justification or reasonable excuse, punitive as well as compensatory damages may properly be allowed, including reasonable attorney fees.</p> <p>[Proof of this decision and syllabus has been submitted to Judge Marvin ¡and corrected.]</p>

<p>ERROR to Cuyahoga common pleas court.</p> <p>Cited and commented upon the following authorities: State v. Harmon, 13-23 O. C. C. 292; Harmon v. State, 66 Ohio St. 249 [64 N. B. Rep. 117-.; 58 L. R. A. 618]; State v. Thompson, 160 Mo. 333 [60 S. W. Rep. 1077; 54 L. R. A. 950; 83 Am. St. Rep. 468]; Cooley, Const. Lim. (7 ed.) 163, 544; Cincinnati, W. & Z. By. v. Clinton Co. (Comrs.), 1 Ohio St. 77.-</p>

<p>ERROR to Morrow common pleas court.</p> <p>Cited and commented npon tbe following authorities: Henning v. Bartz, 25 O. C. C. 15; Goyert v. Eicher, 70 Ohio St. 30 [70 N. E. Rep. 511]; McHugh v. State, 42 Ohio St. 154; Kent v. State, 42 Ohio St. 426; Hartnett v. State, 42 Ohio St. 568; Davis v. State, 25 Ohio St. 369; Calhins v. State, 18 Ohio St. 366 [98 Am. Dec. 121]; McGuire v. State, 2 Circ. Dec. 318 (3 R. 551) ; Gawn v. State, 7 Circ. Dec. 19 (13 R. 116) ; Schneider v. State, 1 Circ. Dee. 565 (2 R. 420) ; Lindsey v. State, 69 Ohio St. 215 [69 N. E. Rep. 126]; Brown v. State, 18 Ohio St. 496</p>

<p>CRIMINAL LAW — MUNICIPAL CORPORATIONS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>1. Power of Municipality to Regulate Emission of Smoke.</p> <p>It is within the power of a municipality under Sec. 7, Clause 3 of act 92' O. L. 346 (Rev. Stat. 1692; Lan. 3102; B. 1536-100), to provide by ordinance for the regulation of the emission of smoke.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§• 1773-1777 — Ed.]</p> <p>2. Smoke Ordinance not Void Unless Unreasonable.</p> <p>The test as to the validity of such an ordinance is its reasonableness; and unless it is shown to be clearly unreasonable, it should not bo declared void.</p> <p>3. Proper Parties Defendant in Prosecution.</p> <p>In a prosecution for violation of an ordinance regulating the emission of smoke, the proper defendant is the corporation or person permitting the emission, or the employe causing it.</p> <p>[Syllabus approved by the court.]</p>

<p>CONTRACTS — INFANTS.</p> <p>Taggart, Donahue and Craine, JJ.</p> <p>Suit asaiust Iitoant on Exphgss Con.tbact fob Necbssaeies.</p> <p>A suit cannot he maintained against an infant on his express contract for necessaries, without an averment and proof that the price to he paid for such necessaries was reasonable.</p> <p>[Syllabus by the court.]</p>

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

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

<p>FRAUD — NOTICE—PARENT AND CHILD — UNDUE INFLUENCE-</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Notice of Undue Parental Influence over Fiduciary Chargeable if Discoverable by Ordinary Diligence.</p> <p>Protection of property rights of persons in actual or Quasi wardship relations is a paramount purpose of the law, which views with suspicion transactions between fiduciaries and their wards, and requires third persons as parties to such transactions, to make reasonable inquiry when the known facts suggest improper advantage of, or undue influence over, the former. Hence, where a father procures his daughter shortly after her becoming, of full age to make a mortgage to a third party for the father’s benefit the doctrine of the English Chancery decisions applies, and the third party seeking to sustain the transaction, though without actual knowledge of undue influence or duress, is chargeable with the duty of investigating the daughter’s freedom of will in making-such conveyance and becomes subject to such equities as may exist between parent and child. Judge Winch dissents.</p> <p>[Proof of this decision and syllabus has been submitted to Judge Henry and corrected.]</p>

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

<p>GUARDIAN AND WARD — TRUSTS AND TRUSTEES.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Sale of Land to Guaedian in Tbust foe Waed.</p> <p>Where a guardian negotiates what is in form a sale of the goods of his ward, but himself assumes the payment of the purchase price, in con siderátion of a conveyance of land by the purchaser to such guardian personally, the latter will not be permitted to benefit by such transaction 'but will be held to have acquired such land in trust for the benefit of his ward.</p> <p>[Syllabus by the court.]</p>

If the action is one which should be revived, then it should be revived in the name of the heir or devisee, and not the executor. 1 Cyc. 60; Johnson v. Slwood, 82 N. Y. 362; Harris v. Crenshaw, 24 Va. (3 Rand.) 14; Little v. Conant, 19 Mass. (2 Pick.) 527. Probate court had no power to appoint the Union Savings Bank and Trust Company, a corporation, as executor. Schumacher v. Mc-Callip, 69 Ohio St. 500 [69 N. E. Rep. 986]. Collateral impeachment of record of appointment.

<p>ASSESSMENTS — INJUNCTION—SEWERS. '</p> <p>Haynes, Parker and Wildman, JJ,</p> <p>1. Inadvertent Change in Construction of Sanitary Sewer not Affecting Cost or Efficiency Held not to Relieve against Assessment therefor.</p> <p>Where in the construction by a municipality of a local sewer for sanitary purposes, by the inadvertence of an assistant engineer employed to fix the grade thereof, the contract or specifications for such 'sewer has been departed from as to its depth, but without affecting its cost or efficiency, and the error was not discovered until after the completion of the construction, an assessment against abutting lots will not, for that reason be enjoined, no substantial injury to the rights of the lot owners being apparent.</p> <p>2. Proximity of Public Park not Directly Abutting Sanitary Sewer Held not to Require Deduction from Foot Frontage Assessment.</p> <p>In an assessment upon lots to defray the cost of a local sanitary sewer, the municipality is not required to make deduction because of the proximity of a public park not directly abutting thereon.</p> <p>3. Costs of Intersection Paid by Municipality Held not to Apply to Local Sanitary Sewer Crossing Street.</p> <p>The provision of the municipal code as to improvements for which special assessments are made that “the corporation shall pay the cost of intersection” (Rev. Stat. 2373; Lan. 3604; B. 1536-213; Mun. code, Sec. 53) has reference to the parts of street improvements at the intersections of streets, one with another. It has no' application to the crossing of a street by a sewer for local sanitary drainage.</p> <p>4. Burden of Proof as to Negative Fact to Establish Irregularity.</p> <p>One seeking to enjoin an assessment by a city council on the ground that a statutory requirement has been omitted, has the burden of establishing such fact by evidence. It is not incumbent on the city to show affirmatively its compliance with the statute.</p> <p>[Syllabus by the court.]</p>

<p>APPRAISEMENT AND AWARD — INSURANCE—MORTGAGES.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>1. Mortgagee Held not Bound by Appraisement and Award to which He was not a Party.,</p> <p>A mortgagee who holds a policy of insurance issued to the mortgagor, which provides that in case of loss there shall be an appraisal and award with the usual mortgage clause attached, “loss if any payable to the mortgagee as his mortgage interest may appear” and further in substance: “That the insurance as to the interest therein of the mortgagee, should not be invalidated by any act or neglect of the mortgagor:” is not bound by an appraisement and award made by mortgagor and insurance company without the knowledge of the mortgagee.</p> <p>2. But Mortgagee Repudiating Appraisement should Demand Another Ap-praisement before Insisting on Payment.</p> <p>In such case where the mortgagee repudiates the appraisement and award made by the mortgagor and insurance company, it is the duty of the mortgagee to demand an appraisal and award before insisting upon the payment of the loss to him either by original action or by cross petition in an action brought by the mortgagor.</p> <p>tSyllabus approved by the court.]</p>

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

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

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

<p>MANDAMUS — NEW TRIAL.</p> <p>Parker and Wildman, JJ.</p> <p>(Haynes, J., not sitting.)</p> <p>1. Clerk Cannot be Compelled to Enter Judgment Pending Motion to Vacate Verdict.</p> <p>Mandamus will not lie to compel a clerk of court to enter judgment upon a verdict in favor of the plaintiff, during the pendency of a motion by the defendant to vacate the judgment.</p> <p>2. Motion to Vacate Verdict Amended by Insertion, “and por a New Trial.”</p> <p>A motion asking that a verdict “he vacated,” hut not' in terms asking for' a new trial, may, at the same term, although more than three days after the rendition of the verdict, he amended hy leave of court by the in-' sertion of the words, “and for a new trial.”</p> <p>[Syllabus approved by the court.]</p>

.DeMUBEEE TO ANSWER. delators filed their separate petitions in the circuit court of Pike county, Ohio, alleging that the board of commissioners of Pike county had failed and refused to file a detailed report of their financial transactions for the year ending August 31, 1907, itemized as to amount, for what purpose and to whom paid, as they are required to do by statute; that the report already filed by them was so condensed as to defeat the object of the statute requiring…

<p>CONSTITUTIONAL LAW — JUSTICES OF THE PEACE.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>¿L LEGISLATURE CANNOT CURTAIL CONSTITUTIONAL TERM OF JUSTICES OF THE PEACE after Their Election and Qualification.</p> <p>The term of office of justices of the peace elected in November, 1904, under act 97 O. L. 62' (Rev. Stat. 1442; Lan. 2881), changing the time of their election from April to November, being fixed at three years by the constitution, Art. 4, Sec. 9, cannot be curtailed by a further provision of law providing that justices’ terms shall begin on the first Monday in January following their election; but they are entitled to full three years from April, 1905, the time from which their terms began.</p> <p>2. -Officers Submitting to Election for Their Successors not Estopped from .Claiming Pull Constitutional Term.</p> <p>Justices of the peace whose term of office commenced in April, 1905, entitled to full three years under constitution, Art. 4, Sec. 9, by submitting themselves at the general election in November, 1907, for the term of four years beginning January, 1908, and having been defeated therefor, are not estopped from claiming their full terms.</p> <p>•,3. Terms of Justices of the Peace Beginning April, 1905, Extended to January, 1910. ■</p> <p>.Justices of the peace whose term of office does not expire until April, 1908, under act 98 O. L. 171 (Rev. Stat. 1442; Lan. 2881), fixing the terms of justices at four years commencing on the first Monday in January after .their election in November in odd numbered years, passed to conform to the constitutional amendment, adopted November 7, 1908, directing the legislature to fix their terms of office and extending their tenure until ¡successors are elected, hold their office until the conjunction of general , .election in an odd numbered year followed by a first day of January after April, 1908, to wit, January 1, 1910, and hence their successors cannot be elected until November, 1909.</p> <p>[Proof of this decision and syllabus has been submitted to Judge Henry ■and corrected.]</p>

<p>Cited and commented upon the following authorities: 11 Am. & Eng. Ene. Law (2 ed.) 421, 427; 16 Cyc. 75; Leather Mfg. Nat. Bank v. Morgan, 117 U. S. 96 [6 Sup. Ct. Rep. 657; 29 L. Ed. 811]; Conti-nential Nat. Bank v. Bank, 50 N. Y. 575; Knox County Bank v. Lloyd, 18 Ohio St. 353; Ewart, Estoppel 40; McKenzie v. British Linen Co. 6 App. Cas. 82; Morgan v. Railway, 96 U. S. 720 [24 L. Ed. 743].</p>

<p>APPEALS — RECEIVERS.</p> <p>Taggart and Donahue, JJ.</p> <p>(McCarty, X, not sitting.)</p> <p>Appointment op Receiver Held not to Determine Ultimate Rights from which-, Appeal will Lie.</p> <p>An order of the common pleas court appointing a receiver is not one determining ultimate rights, and is not such a final order as will give a court jurisdiction on appeal, even though regularly made and all the-forms of law observed in perfecting the appeal.</p> <p>[For other cases in point, see 7 Cyc. Dig., “Receivers,” §§ 112-128. — Ed.]</p> <p>[Syllabus by the court.]</p>

<p>CORPORATIONS — RECEIVERS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>.1, Past Due Indebtedness Essential to Appointment of Receiver.</p> <p>A petition by a .stockholder and creditor of a corporation alleging that a note upon which he is an indorser becomes due on the day of filing the petition does not allege a past due indebtedness within the meaning of Rev. Stat. 5845 (Lan. 9384), nor state a ground for appointment of a receiver.</p> <p>2. Error in Appointment op Receiver Cured by Corporate Ratification.</p> <p>Ratification by the board of directors of a corporation of the unauthorized1 act of its president consenting to the appointment of a receiver under a petition not asking for equitable relief nor stating any sufficient ground therefor, renders the error of the court in naming the receiver voidable only.</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>MONOPOLIES — CRIMINAL LAW.</p> <p>Parker, Wildman and Kinkade, JJ.</p> <p>1. Failure to File Motion to Quash Waives Duplicity and Indeeiniteness.</p> <p>A motion to quash is the proper procedure to point out the defects of duplicity and indefiniteness in an indictment, and failure to file such motion and entering a general plea to the indictment, is a waiver of those defects.</p> <p>2. Indictment Charging Unlawful .Combination Punishable by Fine and Imprisonment.</p> <p>An indictment which charges that accused and numerous other named defendants on a day named and continuously between that (date and the day indictment is found were members of an unlawful trust and / combination formed for the purpose of carrying out restraint in trade and commerce, increasing the price and preventing competition in the sale of lumber, and knowingly acted with and in pursuance of, and aided and assisted in carrying out the purposes of such unlawful trust and combination; binding themselves not to sell or dispose of any lumber for use in a designated locality below the common standard of figures, and agreeing to pool, combine and unite their interests in such lumber trade, states a violation of Sec. 1 of act 93 O. L. 143 (Lan. Rev. Stat. 7586; B. 4427-1), commonly called the Valentine anti-trust law which is punishable by fine and imprisonment under Sec. 4 (Lan. Rev. Stat. 7589; B. 4427-4) thereof, and not Sec. 10 (Han. Rev. Stat. 7595; B. 4427-10).</p> <p>:3. On Remand for Resentence Court May Fine or Imprison or Both.</p> <p>A workhouse sentence having been illegally imposed for violation of the Valentine anti-trust law, will be set aside on review and the case remanded to the trial court for resentence, which may be by fine or imprisonment or both in the discretion of the court as on original hearing.</p> <p>[Syllabus approved by the court.]</p>

<p>NEGLIGENCE — SIDEWALKS.</p> <p>Parker, Wildman and Kinkade, JJ.</p> <p>.PEDESTRIANS NOT REQUIRED TO TAKE MORE DANGEROUS OR GREATLY INCONVENIENT Route to Avoid Known Defective Sidewalk.</p> <p>A pedestrian must exercise ordinary care both in the selection of a route and in its use after selecting it. A pedestrian on a city street desiring to go from one residence to ' another on the same side of the street is not negligent as a matter of law in attempting to pass over a defective sidewalk, where his only alternatives are to take another and very circuitous route by another street or cross the street through deep mud to a more dangerous sidewalk on the other side.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ .-2836-2914; “Negligence,” §§ 339-366. — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>CONTRACTS — INJUNCTION—MUNICIPAL CORPORATIONS.</p> <p>Swing, G-iffen and Smith, JJ.</p> <p>Street Improvement with Wood Blocks Treated with Certain Preservative. Process Held not Enjoin able.</p> <p>A contract for paving a street with wood blocks treated with a certain process of coal tar creosote oil will not be enjoined upon the ground that the specifications exclude competition where it appears (1) that the specifications as to wood blocks are not covered by a certain patented process but refer to a different and older wood preservative process; (2) that the pure coal tar creosote oil required may be obtained in the-market.</p> <p>[Syllabus approved by the court.)</p>

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

<p>RELIGIOUS SOCIETIES.</p> <p>Walters, Cherrington and Jones, JJ.</p> <p>1. GENERAL Conference of Free Baptists of the United States Present Organization.</p> <p>The General Conference of Free Baptists of the United States has been duly and legally organized and incorporated under the laws of the state of Maine and is the legal successor of the General Conference of the Free Will Baptist Connections of the United States.</p> <p>2. No Departure from Faith or Tenets of Prior Organization.</p> <p>There has been no substantial or material departure by said General Conference of Free Baptists of the United States from the faith and tenets of said General Conference of Free Will Baptist Connections of the United States, and there has never existed a schism in said General Conference of Free Will Baptist Connections of the United States nor in its said successor, The General Conference of Free Baptists of the United States.</p> <p>3. Change in Name of General Organization Duly Authorized.</p> <p>The said incorporation of the General Conference of Free Baptists of the United States and the change of name from that of the General Conference of Free Will Baptist Connections of the United States to said corporate name were duly and legally authorized by said General Conference of Free Will Baptist Connections of the United States and what is known as the new constitution and by-laws of said Free Baptist Church were duly and legally adopted by said General Conference of Free*Baptists of the United States.</p> <p>4. Judgment of Court having Jurisdiction Res Judicata of Controversies between Factions.</p> <p>Where one of two existing factions in a church society, or the trustees or representatives of said such faction obtains a judgment of a court having jurisdiction of the parties and subject-matter against the other faction, determining the rights and interests of said parties in and to the church property of such society such judgment if unreversed is res ad judicata as to all matters so determined in all subsequent suits between said two factions so long as they continue substantially the same, and this is so notwithstanding the trustees, representatives and individual membership of said factions may change.</p> <p>[Syllabus by the court.]</p>

<p>CONSTRUCTION OF WILL.</p> <p>Taggart and Donahue, JJ.</p> <p>(McCarty, J., not sitting.)</p> <p>Heiks of Deceased Devisee Take by Virtue of Rev. Stat. 5971 (Lan. 9510>, Residuary Estate Bequeathed by Testator to “Legal Heirs” of Deceased-Brother.</p> <p>Where a testator bequeaths his residuary estate to the “legal heirs” . of a deceased brother without other or further designation as to who are intended as his beneficiaries, and by his will directs that such residuum “shall fall to and be divided in equal shares among the legal heirs of my deceased brother, and I hereby bequeath and devise the same to them;” and, that-at the time of making said will one of the sons of the testator’s deceased brother was dead, leaving heirs: Held, (1) That all persons who at the time of the death of the “deceased brother” of those who answer the description of “legal heirs” of said deceased brother at the time of such brother’s death are entitled to share in such a residuary estate in equal proportion, and if at the time of making of the will any of such “legal heirs” had died leaving issue surviving the testator, thqt such issue shall take the share which would have otherwise gone to such “legal heir,” had he survived the testator. Revised Statutes 5971 (Lan. 9510) controls such distribution. (2) The expression “legal heirs” as tísed by a testator has a well known, definite meaning in the law, to wit: Those upon whom the law would cast the estate if the testator had died intestate; the expression “to be divided in equal shares” merely points out how such persons are to take their interests.</p> <p>[Syllabus approved by the court.]</p>

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

<p>ATTACHMENT.</p> <p>'Giving of Bond Does not Confeb Jubisdiction in Void Attachment Pboceedings.</p> <p>In an attachment proceeding which is rendered void by a defect in the affidavit, jurisdiction is not conferred over the defendant by reason of the fact that he has given bond.</p>

<p>ERROR — MORTGAGES—PARTIES.</p> <p>Parker, Wildman and Kinkade, JJ.</p> <p>1. Outstanding Claimant Proper Party in Foreclosure.</p> <p>Foreclosure proceedings, under the Ohio statutes, contemplate appraisal and sale of the entire land mortgaged and not merely the equity of redemption; and, so as to convey title without cloud to the purchaser at judicial sale, all persons having claims against the property are made parties, including therein an outstanding claimant, although deriving no title, nor claiming such, from defendant in possession or his immediate predecessors in title.</p> <p>.2. Order of Reversal by Federal Appellate Court not Binding on State Court.</p> <p>A judgment by the federal circuit court of appeals reversing the federal circuit court having original jurisdiction of the controversy and remanding the cause for new trial, is not a final order or conclusive adjudication binding on a state court.</p> <p>[Syllabus approved by the court.]</p>

<p>ASSESSMENTS — ESTOPPEL—CONSTITUTIONAL LAW,</p> <p>Swing, Giifen and Smith, JJ.</p> <p>1. Delay in Improvement Does not Relieve Abutting Owner from: Assessment.</p> <p>Delay in completing a street improvement does not relieve abutting property owners from assessment, and a mortgagee who has become the1 owner by foreclosure is estopped from denying that the property is not benefited to the extent of the assessment or that it is not valuable enough to stand the assessment, where the mortgagor joined in the petition for the improvement.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 544-599; í Cyc. Dig., “Estoppel,” §§ 407-415; '600-613. — Ed.]</p> <p>2. Revised Statute 2272 (see Dan. 3613; B. 1536-222), not Unconstitutional, as to Assessments, when.</p> <p>Revised Statute 2272 (see Lan. 3613; B. 1536-222), in so far as it concerns the validity of an assessment for a street improvement which has been duly petitioned for, and promoted by, the abutting owners, is constitutional.</p> <p>ISylIabus approved by the court.]</p>

<p>SCHOOLS AND SCHOOL DISTRICTS.</p> <p>Parker, Wildman and Kinkade, JJ.</p> <p>1. Statutes do not Require Advertisement for Bids nor Letting of Contract for Coal to Lowest Bidder.</p> <p>Neither Rev. Stat. 3987 (Lan. 6466), specifically empowering boards of education, among other designated things^ to provide fuel; Rev. Stat. 3988 (Lan. 6468), prescribing advertisement for bids for certain designated supplies and contracts, but omitting mention of fuel; nor Rev. Stat. 4017 (Lan. 6577), requiring the director of schools, where one is chosen, to advertise for bids, etc., without providing when or how he may advertise therefor, requires advertising for bids for coal or purchase from the lowest responsible bidder.</p> <p>2. Lowest Priced Coal not Necessarily Most Practical for Heating School ¡ Buildings.</p> <p>A broad discretion is reposed in boards of education regarding the purchase of necessary supplies for schools. Hence, in the purchase of fuel, gradation of quality of coal, heating capacity, adaptability to heating apparatus, and experience and skill of janitors and other persons managing school furnaces are essential facts to be considered in making selection therefor, which may render it inadvisable to accept the lowest priced; and where it appears that the board has complied with the just requirement of acting in good faith for the best good of the schools according to the light and understanding of its members, acceptance of other than the cheapest coal will not be enjoined.</p> <p>3. Advertising for Trivial Supplies not Required.</p> <p>The director of schools under Rev. Stat. 3988 (Lan. 6468) and Rev. Stat. 4017 (Lan. 6577), is not required to go to the expense of advertising for bids for every trivial requirement in the way of supplies by the board.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR to Cuyahoga common pleas court.</p> <p>Cited and commented upon the following authorities: Bailey, Personal Injuries See. 2849; Thompson, Negligence See. 4095; Hettchew v. Chipman, 87 Md. 729 [41 Atl. Rep. 65]; White v. Lithograph Co-131 N. Y. 631 [30 N. E. Rep. 236]; Hickey v. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286]; Stuart v. Railway, 163 Mass. 391 [40 N. E. Rep-180] ; Lowcock v. Paper Co. 169 Mass. 313 [47 N. E. Rep. 1000]; Sullivan v. Electrical Co. 178 Mass. 35 [59 N. E. Rep. 645]; Park v. Whitney, 148 Mass. 278 [19 N. E. Rep. 161]; Mackin v. Refrigerator Co. 100 Mich. 276 [58 N. W. Rep. 999]; Ogley v. Miles, 139 N. Y. 458 [34' N. E. Rep. 1059]; Bohn Mfg. Co. v. Erickson, 55 Fed. Rep. 943 [5 C. C. A. 341; 12 U. S. App. 260]; Ball. & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816]; Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; Wabash Ry. v. Sidles, 64 Ohio'St. 458 [60 N. E. Rep. 576] ; Clev. C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66.</p> <p>Cited and commented upon the following authorities: Shamokin Bank v. Street, 16 Ohio St. 1; Burton v. Insurance Co. 26 Ohio St. 467; Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738]; Gin. H. & T>. Ry. v. Bailey, 70 Ohio St. 88 [70 N. E. Rep. 900]; Snider v. Young, 72 Ohio St. 494 [74 N. E. Rep. 822] ; Cleveland Bolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466;,3 L. R. A. 385; Í5 Am. St. Rep. 596] ; Lake Erie & W. By. v. Mackey, 53 •Ohio St. 370- [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. ■640] Citizens Elec. By. ,v. Bell, 26 O. C. C. 691, affirmed, no report, Citizens Elec. By. v. Bell, 70 Ohio St. 482; Breckenridge Co. v. Beagan 12 Ciro. Dee. 50 (22 R. 71); Noden v. Verlenden Bros. 211 Pa. St. 135 [60 Atl. Rep. 505]; Wallace v. Oil Co. 66 Fed. Rep. 260; Williams v. Bailway, 91 Ala. 635 [9 So. Rep. 77]; Bohn Mfg. Co. v. Erickson, 55 Fed. Rep. 943 [5 C. C. A. 341; 12 U. S. App. 260] ; Evans Laundry Co. v. Crawford, 67 Neb. 153 [93 N. W. Rep. 177] ; Mickey v. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286] ; Small v. Lumber Co. 95 Minn. 95 [103 N. W. Rep. 726] ; Bibb Mfg. Co. v. Taylor, 95 Ga. 615 [23 S. E. Rep. 188]; Steiler v. Hart, 65 Mich. 644 [32 N. W. Rep. 875]; Addicks v. >■Christoph, 62 N. J. Law 786 [43 Atl. Rep. 196; 72 Am. St. Rep. 685]; Evansich v. Bailway, 57 Tex. 126 [44 Am. Rep. 586]; Doioling v. Allen, 74 Mo. 13 [41 Am. Rep. 298] ; Clark v. Homes, 7 Hurl. & Nor. :937; Louisville, N. A. <& C. By. v. Frawley, 110 Ind. 18 [9 N. E. Rep. ■594]; Clev., C. & C. By. v. Crawford, 24 Ohio St. 63Í [15 Am. Rep. ■633] ; Pitts. C. & St. L. By. v. Fleming, 30 Ohio St. 480; Lake Shore ■<& M. S. By. v. Fitzpatrick, 31 Ohio St. 479; Balt. & O. By. v. Whitacre, ■35 Ohio St. 627; Cleveland & E. Elec. By. v. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558]; Ohio é Ind. Torpedo. Co. v. Fishburn, 61 Ohio •St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 446],</p>

<p>COUNTIES — JUDGMENTS AND DECREES — PRINCIPAL AND SURETIES.</p> <p>Taggart, Donahue and Craine, JJ.</p> <p>1. Judgment fob Defendants Affikmed upon Single Valid Defense.</p> <p>A judgment for defendants should be affirmed, if among the defenses interposed there were any one that was valid, or if there be any other sufficient reason under the law for sustaining the judgment.</p> <p>2. PREREQUISITES TO RECOVERY UPON BOND FOR FAITHFUL PERFORMANCE OF CONTRACT with County.</p> <p>Failure to aver in an action against a contractor and his sureties for damages for failure to complete a contract entered into with county commissioners, (1) that the contract relied upon was one of binding force and effect, (2) endorsement of the contract by the prosecuting attorney in compliance with Rev. Stat. 799 (Lan. 1763), and (3) performance of all the other prerequisites to a complete and valid contract, precludes any recovery thereon by the county. Such prerequisites are not for the benefit and protection of the sovereign power alone, but they are of the-essence of the contract, which without them becomes null and void.</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>Mandamus. Appeal (Two cases.)</p>

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

<p>ELECTIONS — INTOXICATING LIQUORS.</p> <p>Walters, Cherrington and Jones, JJ.</p> <p>The Jones Local Option Law does not Authorize Overlapping oe Districts.</p> <p>On May 21, 1907, a majority of the electors of a residence district in the city of Portsmouth signed a petition under the act, 98 O. L, 68 (Lan. Rev. Stat. 7283a et seq.; B. 4364-30a et seq.), in favor of prohibiting the sale of intoxicating liquors in that district. This petition was filed with a judge, found sufficient, and the residence district duly established prior to October 24, 1907. On the later date another petition was 'filed with the judge, also in favor of prohibiting the sale in the residence district described in it. The residefiee district described in the second petition overlapped the first and was identical with it, except that the second had an additional block attached containing forty-five electors: Held, Residence districts established under said act are territorial units; the act does not authorize the overlapping of a valid prior residence district by a later petition.</p> <p>[Syllabus by the court.]</p>

<p>PLEADING — MORTGAGES.</p> <p>Parker, Wildman and Kinkade, JJ.</p> <p>1. Demurrer Does not Lie to Petition in Foreclosure Prating that all Claimants of Interest in Mortgaged Premises be Made Parties.</p> <p>•A petition in an action by a mortgagee, asserting that a defendant claims to be owner in fee simple of the mortgaged premises and praying that defendants be required to answer and set forth their respective claims to the mortgaged property or be forever barred, sufficiently complies with the provisions of Rev. Stat. 5006 (Lan. 8521), as to joinder of such claimant of title.</p> <p>2. Outstanding Claimant of Title Proper Defendant in Foreclosure,</p> <p>In Ohio an outstanding claimant of title to mortgaged real estate is a proper party defendant in a proceeding to foreclose the mortgage.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR — MASTER . AND SERVANT.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Relation oj? Vice-principal and Suboedinate between Workmen under one Foreman held Established.</p> <p>Evidence that defendant’s foreman directed plaintiff to help another workman whenever the latter called upon him to do so sufficiently establishes the relation of vice principal between such workman and plaintiff. Hence, instructions denying such relation in effect takes the case from the jury are prejudicial and erroneous.</p> <p>[Syllabus approved by the court.]</p>

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

<p>MUNICIPAL CORPORATIONS.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>Certificate of Funds Available Required by Burns Haw to Appropriate Money to Build Dyke.</p> <p>An ordinance of a municipal corporation appropriating private property for the building of a dyke is an ordinance for the expenditure of money and is void if no certificate has been previously filed and recorded by the proper officer as required by Rev. Stat. 2702 (Lan. 3999; B. 1536-205), known as the Burns law; and an injunction will be granted restraining the municipality from proceeding in the probate court to assess compensation to the landowner for the land appropriated.</p> <p>[Syllabus by the court.]</p>

<p>Error to Guernsey common pleas court.</p> <p>Cited and commented upon the following authorities: Slingluff 'v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574]; State v. Meigs Co. (Comrs.) 7 Circ. Dee. 351 (14 R. 26) ; Kyle v. Greene Co. (Comrs.) 26 Ohio St. 46; Clark v. Lucas Co. (Comrs.) 58 Ohio St. 107 [50 N. E. Rep. 356]; State v. Hawkins, 44 Ohio St. 98 [5 N. E. Rep. 228]; Anderson v. Jefferson Co. (Comrs.) 25 Ohio St. 13; McClave v. Miller, '25 Ohio St. 14; Richardson v. State, 66 Ohio St. 108 [63 N. E. Rep. 593]; Columbus St. Ry. v. Pace, 68 Ohio St. 200 [67 N. E. Rep. 490]; State v. Dudley, 1 Ohio St. 437; Buckingham v. Railway, 10 Ohio St. 25; Robbins v. State, 8 Ohio St. 131; Dodge v. Gridley, 10 Ohio St. 173; Eggleston v. Harrison, 61 Ohio St. 397; State v.. Union Tp. (Tr.) 8 Ohio St. 394; Ross Co. (Comrs.) v. State, 49 Ohio'St. 373 [34 N. E. Rep. 735],</p>

<p>Appeal from Lucas common pleas court.</p> <p>Cited and commented upon the following authorities: Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120]; Norwood y. Baker, 12 O. F. D. 228 [172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. Ed. 443]; State v. Newark, 37 N. J. Law 415 [18 Am. Rep. 729] ; Hammett v. Philadelphia, 65 Pa. St. 146 [3 Am. Rep. 615]; Tide-Water Go. v. Coster, 18 N. J. Eq. 518 [90 Am. Dee. 634]; Dillon, Mun. Corp. Sec. 761; Griswold v. Pelton, 34 Ohio St. 482; Chamberlain v. Cleveland, 34 Ohio St. 551; Schroder v. Overman, 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156]; Walsh V. Barron, 61 Ohio St. 15 [55 N. E. Rep. 164; 76 Am. St. Rep. 354]; Cincinnati, L. & N. By. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229]; Davidson v. New Orleans, 96 U. S. 97 [24 L. Ed. 616]; Cincinnati, N. 0. & T. P. By. v. Kentucky, 115 U. S. 321 [6 Sup. Ct. Rep. 57; 29 L.. Ed. 414]; Daytonv. Bauman, 66 Ohio-St. 379 [64 N. E. Rep. 433]; Ayers-v. Toledo, 26 O. C. C. 766; Breuer v. Cincinnati, 52 Bull. 281; Cincinnati v. James, 55 Ohio St. 180 [44 N. E. Rep. 925]; Pike v. Cummings, 3d Ohio St. 213; Groesbeck v. Cincinnati, 51 Ohio St. 365 [37 N. E. Rep. 707]; Blair v. Cary, 24 O. C. C. 560; Birdseye v. Clyde, 61 Ohio St. 27 [55 N. E. Rep. 169]; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428] ; Price v. Toledo, 25 O. O. C. 617; Cincinnati v. Shoemaker, 25 O. C. C. 256; Stafford v. Eamston, 2 Brod. & Bing. 691.</p>

<p>Error to Cuyahoga common pleas court.</p> <p>Cited and commented upon the following authorities: Mengert v. Brinkerhoff, 67 Ohio St. 472 [66 N. E. Rep, 530]; Wingo v. Hooper, •98 N. C. 482 [4 S. E. Rep. 463]; Lovell v. Martin, 21 How. Pr. (N. Y.) ,238; State v. Downs, 8 Ind. 42; Clafiin v. Einstein, 6 AY. N. C. (Pa.) 398; Lewis v. Pratt, 11 Minn. 57; Warner v. Kalb, 15 Mo. App. 600; Young v. Cooper, 12 Neb. 610 [12 N. AY. Rep. 91]; Askwith v. Allen, :33 Neb. 418 [50 N. AY. Rep. 267] ; Freeman v. Leland, 2 Abb. Pr. (N. Y.) 479; Lovell v. Martin, 11 Abb. Pr. (N. Y.) 126; Harding v. Shannon, 20 How. Pr. (N. Y.) 25; Dale v. Jacobs, 41 How. Pr. (N. Y.) 94; Wells v. Selling, 53 How. Pr. (N. Y.) 35; Shinn, Attachment Sec. 125; Kneeland, Attachment Sec. 357; Smith, Fraud Secs. 262, 263, 298; ■Chamberlin v. Fuller, 59 Vt. 247 [9 Atl. Rep. 832] ; McDonald v. Smith, 139 Mich. 211 [102 N. W. Rep. 668]; Wright v. Stewart, 130 Fed. Rep. '905; Cary v. Hotailing, 1 Hill. (N. Y.) 311 [37 Am. Dec. 323]; Erfort v. -Gonsalus, 47 Mo. 208; Lane v. Kingsberry, 11 Mo. 402; 1 Greenleaf, Evidence (16 ed.) Par. 14Q; King v. Hopkins, 7 Cire. Dec. 362 C13 R. 305) ; American Hosiery Co. v. Baker, 10 Circ. Dee. 219 (18 R. 604); Wilmot v. Lyon, 49 Ohio St. 296 [34 N. E. Rep. 720]; Luhrig Coal Co. v. Ludlum, 69 Ohio St. 311 [69 N. E. Rep. 562; 100 Am. St. Rep. 675].</p>

<p>ATTACHMENT.</p> <p>AVERMENT OF “BELIEF” OF NONRESIDENCE HELD INSUFFICIENT.</p> <p>Nonresidence as a ground for attachment, should he stated as a fact, an averment that “Affiant believes * * * that defendant is a nonresident of the state” is not a sufficient statement of that fact to give jurisdiction under Rev. Stat. 5522 (Lan. 9051) against lands of a nonresident defendant.</p> <p>.[Syllabus approved by the court.]</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>Burrows, Laubie and Cook, JJ.</p> <p>Expert Opinion Evidence op Effect of Inspection foe Defects in Coal Mine: Roof Incompetent, when. _</p> <p>Where it is practicable to place plainly before the jury the facts and circumstances surrounding a claimed defect in the roof of a coal mine, it is. error to permit an expert to testify: “That if the fire boss had gone' through the entry before the men went to work and used ordinary care in the inspection of the roof, he would have discovered the fact that, the roof was dangerous and liable to fall.”</p> <p>[Syllabus approved by the court.]</p>

<p>Eeeoe to Hamilton common pleas court.</p> <p>Cited and commented upon the following authorities: United States v. Road Co. 110 Fed. Rep. 864; Moore v. Bunn, 41 Ohio St. 62; Barr v. Poox, 15 Dec. 217; Rafferty v. Traction Co. 25 O. C. C. 411, affirmed, no report, Toledo Trac. Co. v. Rafferty, 71 Ohio St. 497; Gould v. Railway, 91 U. S. 526 [23 L. Ed. 416]; Pepper v. Donnelly, 87 Ky. 259 [8 S. W. Kep. 441]; Griffin v. Seymour, 15 Iowa 30 [83 Am. Dec. 396] ; Northern Pac. Ry. v. Slaght, 205 U. S. 122 [27 Sup. Ct. Rep. 442; 51 L. Ed. 738] ; Gregory v. Woodworth, 107 la. 151 [77 N. W. Rep. 837]; Herman, Estoppel Sec. 92; 1 Freeman, Judgments 249, 483; Black, Judgments Sec. 527; Miller v. Bernicker, 46 Mo. 194; Ford v. Ford, 88 Wis. 122 [59 N. W. Rep. 464]; Stuart v. Heislcell, 86 Ya. 191 [9 S. E. Rep. 984]; Finch v. Eollinger, 46 la. 216; Bussell v. Bussell, 134 Fed. Rep. 840 [67 C. C. A. 436] ; Bussell v. Bussell, 129> Fed. Rep. 434.</p>

<p>BROKERS AND FACTORS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Liability foe Bkokee’s Commission not Released feom by Refusal to Accept Okdeb and Pay Commission.</p> <p>Refusal of a principal to accept an order from his broker for the reason that there could he no profit on the sale, after payment of the broker’s commission, will not relieve the principal from liability for such commission upon his accepting the same contract direct from the customer, there being no evidence that the broker released his principal therefrom, and it appearing that the course of dealing between the principal . and broker was not terminated.</p> <p>[Syllabus approved by the court.]</p>

<p>GIFTS — TRUSTS.</p> <p>Taggart and Donahue, JJ.</p> <p>(McCarty, J., not sitting.)</p> <p>Advancement to Son-in-law of Interest of Daughter in which She Acquiesces ' not a Trust.</p> <p>A gift of a tract of land by the donor to a son-in-law and payment of part ' of the purchase price of another tract, the son-in-law and daughter of the . donor both uniting in a receipt of the property by way of advancement, constitute neither an implied trust nor a resulting one but an advancement to his son-in-law of the daughter’s interest with her acquiescence.</p> <p>[For other cases in point, see 4 Cye. Dig., “Gifts,” §§ 32-43; 7 Cyc. Dig., “Trusts and Trustees,” §§ 37-43.- — Ed.]</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Hamilton common pleas court.</p> <p>Cited and commented upon the following authorities: Jones v. Lloyd, 33 Ohio St. 572; Busing■ v. Busing, 25 Ind. 63; Lord v. Bourne, 63 Me. .368 [18 Am. Rép. 234]y Goodwin v. Goodwin, 33 Conn. 314 ;. Phet V. Railway, 70 Tes.- 522 [8 S. W. Rep. 203]; Weston v. Weston, 38 Ohio St. 473; 1 Jarman, Wills 451; 1 Redfield, Wills 454, See. 33; Williamson, In re, 8 Dee. 47 (6 N. P. 79); Robison v. Orphan Asylum, 123 U. S. 702 [8 Sup. Ct. Rep. 327; 31 L. Ed. 293]; Metcalf v. Framing-ham Parish, 128 Mass. 370; 1 Redfield, Wills 467, Sub. 17, Sec. 33; Carter v. Reddish, 32 Ohio St. i; Charch v. Charch, 57 Ohio St. 561 [49' N. E. Rep. 408]; Cassidy v. Rynton, 44 Ohio St. 530 [9 N. E. Rep. 129]; Collins v. Collins, 40 Ohio St. 353; Gillen v. Kimball, 34 Ohio St. 352; Linton v. Lay cock, 33 Ohio St. 128; Richey v. Johnson, 30 Ohio St. 288; American Tract Soc. v. Atwater, 30 Ohio St. 77 [27 Am. Rep. 422] ; Baxter v. Bowyer, 19 Ohio St. 490Sinton v. Boyd, 19 Ohio St. 30 [2 Am.'Rep. 369]; King v. Beck, 15 Ohio 559; Naylor v. Loomis, 6 Circ. Dee. 41 (9 R. 96) ; Relfferich v. Relfferich, 11 Dec. Re. 303 (26 Bull. 83) ; Widows Rome v. Lippardt, 70 Ohio St. 261 [71 N. E. Rep. 770]; Johnso.n v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61] ; Ruston v. Craighead, 23 Ohio St. 208; dagger v. Davidson, 45 Minn. 424 [48 N. W. Rep. 10]; Perry, Trusts Sec. 540.</p>

.Ereor to Hamilton common pleas court. Cited and commented upon the following authorities: Eureka Fire Cited and commented upon the following authorities: Knickerbocker Fife Ins. Co. v. Norton, 96 U. S. 234 [24 L. Ed. 689]; Phoenix Mut. Life Ins. Co. v. Dosier, 106 U. S. 30 [1 Sup. Ct. Rep. 18; 27 L. Ed. 65]; Viele v. Insurance Co. 26 Iowa 9 [96 Am.

<p>COUNTY AUDITOR — MANDAMUS—TAXES.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>DISTRIBUTION OF TAXES FOE COLLECTION PEES NOT COMPELLABLE UNTIL ASCERTAINMENT of Amount Collected.</p> <p>Distribution' of a special tax levied by the several school boards of the county to provide compensation for services by the county auditor under Sec. 1069 Rev. Stat., cannot be compelled by mandamus until after the amount collected has been ascertained at the semi-annual settlements. ■</p> <p>[Syllabus approved by the court.]</p>

<p>Appeal from Muskingum common pleas court.</p> <p>Error to Muskingum common pleas court.</p>

<p>DRAINS AND DITCHES.</p> <p>Craine, Taggart and Donahue, JJ.</p> <p>1. Improvement of Ditch having Inadequate Outlet Enjoined.</p> <p>Neither county commissioners nor individuals have any right to collect water and by turning it into a ditch with an insufficient outlet cause an overflow of the lands of a lower owner, and an injunction will lie against a ditch improvement where the testimony warrants the conclusion that such a result will ensue.</p> <p>2. Joint County Ditch may be Made to Provide Adequate Outlet by Abutting County.</p> <p>While the improvement of a joint county ditch may not be effected by proceedings for the establishment of a ditch wholly within the county, yet a joint county ditch may be widened and deepened by the commis- ■ sioners of one of the abutting counties, where the purpose is to provide a more adequate outlet for streams emptying therein, and the cost of such an improvement may properly be assessed upon those most benefited thereby.</p> <p>[Syllabus by the court.]</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Wildman, Wincb and Marvin, JJ.</p> <p>(Judges Marvin and Wincb of tbe eigbtb circuit, sitting in place of Judge» Parker and Kinkade.)</p> <p>Personal Service by Registered Letteb of Written Demand on Debtor, Sufficient.</p> <p>Service by registered letter of written demand for tbe excess over and above 90 per cent of a debtor’s personal earnings, and acknowledgment of its delivery to defendant personally constitute a sufficient compliance with See. 6501 Rev. Stat.</p> <p>[Proof of this decision and syllabus has been submitted to Judge Wincb and corrected.]</p>

<p>Appeal from Hamilton court of insolvency.</p>

<p>INJUNCTION — PHYSICIANS AND SURGEONS.</p> <p>Parker, Wildman and Kinkade, JJ.</p> <p>1. Unskillful Practice of Medicine not Enjoinable.</p> <p>The practice of medicine or surgery will not he enjoined merely because such practice is unskillful, patients may be injured rather than benefited thereby, or because the patients are deceived by false claims of skill.</p> <p>2. Medical REGISTRATION Act — Its Purpose.</p> <p>Section 4403c Rev. Stat, prescribing who may practice medicine, is designed to protect the public, and notwithstanding some incidental benefits result to those having the necessary qualifications to practice, by excluding others not qualified, it is not intended to confer special privileges upon licensed practitioners, for the protection of which as a property right they may invoke equitable aid to restrain unlawful competition by unlicensed practitioners.</p> <p>3. Equity Will not Prevent Unlawful Practice of Medicine.</p> <p>Injunction will not lie to prevent the practice of medicine by one having no legal certificate therefor, the only ground urged for such relief being the diminution of profits to one lawfully engaged in such practice, by means of the unlawful competition.</p> <p>[Syllabus approved by the court.]</p>

<p>ATTORNEY AND CLIENT — PLEADINGS—VERDICTS.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>(Judges of eighth judicial circuit sitting in place of judges of fifth judicial circuit.)</p> <p>1. Complete Defense to Action eos Quantum Meeuit.</p> <p>In an action for a quantum meruit for professional services rendered by an attorney, it is a complete defense that the plaintiff agreed before entering upon the case that he would, if necessary, prosecute it to the court of last resort for a contingent fee of one-third of the amount of the judgment recovered, and that subsequently, after losing the case in the court below, he refused to prosecute it to the highest court unless paid l'or so doing, and thereupon he was dismissed from further participation in the case.</p> <p>2. JUDSMENT ON THE PLEADINGS PsOPER PRACTICE.</p> <p>A confession and avoidance is not inconsistent with the allegations of the petition, and where the reply denies nothing in the answer except what is “inconsistent with the petition,” a court may properly give judgment for the defendant on the pleadings. But where this was not done, and the casé was tried to a jury who found for the defendant and judgment was rendered on their verdict, it is immaterial whether or not improper evidence was admitted, or the jury was misdirected, or other errors intervened at the trial.</p> <p>[Proof of this decision and syllabus has been submitted to Judge Henry and corrected.]</p>

<p>AFFIDAVITS — CONDITIONAL SALES — CRIMINAL LAW.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Allegation that Transaction is Conditional Sale Essential to Charge Offense of Retaking Goods Sold on Installments.</p> <p>In the absence of an allegation that the transaction was a conditional sale as defined by Sec. 1 of act 98 O. L. 115 (Sec. 4155-2 Rev. Stat.; Lan. 6849), a demurrer will lie to an affidavit charging the seller with retaking goods which had been sold on installments and on which the amount paid exceeded 25 per cent of the contract price for sai'd goods.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Hamilton common pleas court.</p> <p>Cited and commented upon the following authorities: Flanders v. Blandy, 45 Ohio St. 108 [12 N. E. Rep. 321] ; Volley v. Hicks, 58 Ohio St. 218 [50 N. E. Rep. 809; 41 L. R. A. 858]; Grymes v. Hone, 49 N. Y. 17 [10 Am. Rep. 313]; Williams v. Guile, 117 N. Y. 343 [22 N. E. Rep. 1071; 6 L. R. A. 366]; Thorton, Gifts & Advancements 37; Emery v. ■Clough, 63 N. H. 552 [4 Atl. Rep. 796; 56 Am. Rep. 543] ; Waite v. Grubbe, 43. Ore. 406 [73 Pac. Rep. 206; 99 Am. St. Rep. 764]; 14 Am, & Eng. Ene. Law (2 ed.) 1052.</p>

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

<p>CORPORATIONS — INSURANCE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>■ Cooperage Corporation Cannot Insure its Directors.</p> <p>A company incorporated for the purpose of manufacturing cooperage, cannot, through its secretary and manager, without the assent of' its hoard of directors, incur obligations for the purpose of insuring its directors, such action being foreign to its incorporation and the corporation leaving no-insurable interest in its directors.</p>

<p>Mandamus.</p> <p>Cited and commented upon the following authorities; Dye v. State, 73 Ohio St. 231 [75 N. E. Rep. 829]; State v. Board of Education, 12 ■Circ. Dec. 337 (21 R. 785) ; State v. Hamilton Go. (Comrs.) 20 Ohio ;St. 425; State v. Yeatman, 22 Ohio St. 546; State v. Cuyahoga Falls (Bd. of Bd.) 4 Dec. 329 (3 N. P. 236); Norman School'Dist. (Bd. of Ed.) v. Blodgett, 155 Ill. 441 [40 .N. E. Rep. 1025; 31 L. R. A. 70; 46:-Am. St. Rep. 348]; Cincinnati v. Seasongood, 46 Ohio St. 296 [21 N. E. Rep. 630]; Board of Education V. Board of Ed. 41 Ohio St. 680;. Monroe Tp. (Bd. of Ed.) v. Board of Ed. 46 Ohio St. 595 [22 N. E. Rep. 641]; State v. Powers, 38 Ohio St. 54; State v. Shearer, 46 Ohio-St. 275 [20 N. E. Rep. 335]; State v. Spellmire, 67 Ohio St. 77 [65 N.. E. Rep. 619]; Lehman v. McBride, 15 Ohio St. 573; State v. Constantine, 42 Ohio St. 437 [51 Am. Rep. 833]; State v. Kennon, 7 Ohio St. 547; Boot v. Board of Ed. 52 Ohio St. 589 [41 N. E. Rep. 135]; Bank v. Sines, 3 Ohio St. 1; Teazill v. State, 10 Circ. Dec. 794 (20 R. 646) ;. Williams v. Donough, 65 Ohio St. 499 [63 N. E. Rep. 84; 56 L. R. A. 766]; Coal Co. v. Bosser, 53 Ohio St. 12 [41 N. E. Rep. 263; 29 L. R. A. 386; 53 Am. St. Rep. 622] ; Hixson v. Burson, 54 Ohio St. 470 [43. N. E. Rep. 1000]; State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep.. 272]; Bartlett v. State, 73 Ohio St. 58 [75 N. E. Rep. 939].</p>

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

Jacob R. Stewart entered into a written agreement with George E. Stewart, W. T. S. Johnson and L. N. Gatch, whereby he agreed to sell, and they agreed to buy in equal proportions, 360 shares of corporate stock on certain terms and conditions which were in part: 1. The purchase price of said stock shall be its par value of $100 per share. 2. Said stock shall remain in the name of said J. R. Stewart until it is fully paid for as herein provided, etc. 3.

<p>WILLS.</p> <p>Marvin, Douglass and Caldwell, JJ.</p> <p>•(Judges Marvin and Caldwell of the eighth circuit and Judge Douglass of the fifth-circuit sitting in place of the first circuit judges.)</p> <p>Tub by Devise Relates Back feom Peobate of Will to Death of Testatoe.</p> <p>A title in a devisee relates hack from the prohate of the will, and takes effect as of the date of the death of the testator; or if not at the death of the testator, the devisee takes upon prohate of the will no more than a naked legal title, and where he has made a conveyance of his interest during the interim between the death of the testator and the probate of the will, he takes the legal title upon probate of the will as trustee for his grantee.</p>

<p>Error to Ciucinuati superior court.</p> <p>Cited and commented upon the following authorities: Lake Erie W. By. v. Hatch, 52 Ohio St. 408 [39 N. E. Rep. 1042]; Union Pac. By. v. Moyer, 40 Kan. 184 [19 Pac. Rep. 639; 10 Am. St. Rep. 183]; East Tennessee V. <& G. By. v. Kelly, 91 Tenn. 699 [20 S. W. Rep. 312 ;. 17 L. R. A. 691; 30 Am. St. Rep. 902]; Bichmond <& D. By. v. Benson. 86 Ga. 203 [12 S. E. Rep. 357; 22 Am. St. Rep. 446]; Kansas City, Ft. S. & G. By. v. Morrison, 34 Kan. 502 [9 Pac. Rep. 225; 55 Am. St. Rep. 252]; Sherman v. Railway, 64 N. T. 254; Balt. & 0. By. v. Hubbard, 72 Ohio St. 302 [74 N. E. Rep. 214]; Central of Georgia By. v. Murphey, 196 U. S. 194 [25 Sup. Ct. Rep. 218; 94 L. Ed. 444]; Faulkner v. Hart, 82 N. T. 413 [37 Am. Rep..574]; Mynard v. Raihoay, 71 N. T. 180 [27 Am. Rep. 28]; 5 Am. & ±Eng. Enc. Law (2 ed.) 280; Hudson v. Baxen-dale, 2 Hurl. & Nor. 575; Keystone v. Moyes, 28 Mo. 243 [75 Am. Dec., 123] ; Hull v. Railway, 60 Mo. App. 593; Lesinsky v. Great Western Dispatch, 13 Mo. App. 576; Weed v. Barney, 45 N. Y. 344 [6 Am. Rep. 96] ; Kremer v. Express Co. 46 Tenn. (6 Coldw.) 356; Zinn v. Steamboat Co. 49 N. Y. 442; American M. U. Exp. Co. v. Wolf, 79 Ill. 430; American Sugar Refining Co. v. McGWee, 96 Ga. 27 [21 S. G. Rep. 383]; Green & B. B. Nav. Co. v. Marshall, 48 Ind. 596; Lake Erie & W. By. v. Hatch, 52 Ohio St. 408 [39 N. E. Rep. 1042] ; Myrick v. Bailway, 107 U. S. 102 [1 Sup. Ot. Rep. 425; 27 L. Ed. 325] ; Moore. Carriers 266, 267; Fisk v. Newton, 1 Denio (N. Y.) 45 [43 Am. Dee. 649]; Manhattan Rubber Shoe Co. v. Railway, 9 App. Div. 172 [41 N. Y. Supp. 83]; Hudson v. Baxendale, 2 Hurl. & Nor. 574; Cook v. Railway, 58 Barb. (N. Y.) 312; Wilson v. Railway, 94 Cal. 166 [29 Pac. Rep. 861; 17 L. R. A. 685] ; 3 Am. & Eng. Enc. Law (2 ed.) 733, 746; Read v. Spaulding, 30 N. Y. 630 [86 Am. Dec. 426]; Michaels v. Railway, 30 N. Y. 564 [86 Am. Dec. 415]; Deming v. Cotton-Press & Storage Co. 90 Tenn. 306 [17 S.- W. Rep. 89; 13 L. R. A. 518]; Burlington & M. By. v. Arms, Í5 Neb. 69 [17 N. W. Rep. 351]; Burlington <& M. By. v. Arms, 15 Neb. 69 [17 N. W. Rep. 351]; Tarbell v. Royal Exch. Ship. Co. 110 N. Y. 170 [17 N. E. Rep. 721; 6 Am. St. Rep. 350]; Scheu v. Benedict, 116 N. Y. 510 [22 N. E. Rep. 1073; 15 Am. St. Rep. 426]; Becker v. Radlway, 109 App. Div. 230 [96 N. Y. Supp. 1]; Mynard v. Railway, 71 N. Y. 180 [27 Am. Rep. 28] ; Westcott v. Fargo, 61 N. Y. 542 [19 Am. Rep. 300]; Alexander v. Greener 7 Hill (N. Y.) 533; Wells v. Navigation Co. 8 N. Y. 375; Nicholas v. Railway, 89 N. Y. 370; Aaronson v. Railway, 52 N. Y. Supp. 95 [23 Mise. 660]; Fairfax v. Railway, 67 N. Y. 11; Sherman v. Railway, 64 N. Y. 254; McKinney v. Jewett, 24 Hun 19, affirmed McKinney v. Jewett, 90 N. Y. 267; Hirsch v. Platt, 89 N. Y. Supp. 362; Security Trust Co. v. Wells, Fargo & Co. 81 App. Div. 426 [80 N. Y. Supp. 830], affirmed, 178 N. Y. 620 [70 N. E. Rep. 1109]; Rathbone v. Railway, 140 Ñ. Y. 48 [35 N. E. Rep. 418]; Wheeler v. Steam Nav. Co. 125 N. Y. 155 [26 N. E. Rep. 248; 21 Am. St. Rep. 729]; Kenney v. Railway, 125 N. Y. 422 [26 N. E. Rep. 626] ; Westcott v. Fargo, 65 Barb. (N. Y.) 349; Ghormley v. Dinsmore, 51 N. Y. Supr. 196; Baltimore & 0. By. v. Hubbard, 72 Ohio St. 302 [74 N. E. Rep. 214]; Falkenburg v. Railway, 59 N. Y. Supp. 44; Frankfort v. Weir, 83 N. Y. Supp. 112; Goodwin v. Insuranoe Go) 73 N. Y. 480; Wabash By. v. Brown, 152 Ill. 484 [39 N. E. Rep. 273]; Chicago & A. By. v. Grimes, 71 Ill. App. 397; Hudson v. Railway, 92 la. 231 [60 N. W. Rep. 608; 54 Am. St. Rep. 550]; Massengale v. Telegraph Go. 17 Mo. App. 257; Clev. G. C. & St. L. By. v. Heath, 22 Ind. App. 47 [53 N. E. Rep. 198] ; Hess v. Bailway, 40 Mo. App. 202; Soper v. Railway, 113 Mich. 443 [71 N. W. Rep. 853]; Bice v. Railway, 63 Mo. 314; Illinois Cent. By. v. Bogard, 78 Miss. 11 [27 So. Rep.. 879]; Jacobson v. Express Go. 1 Circ. Dec. 212 (1 R. 381), affirmed, Adams Exp. Go. v. Jacobson, 24 Bull. 496; New York Life Ins. Co. v. Eggleston, 96 U. S. 572 [24 L. Ed. 841].</p>

<p>ERROR — PLEADING—SALE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>1. Defense of Bbeach of Warranty and Demand for Damages Good Against Demurrer.</p> <p>A defense of breach of warranty and prayer for damages therefor demands affirmative relief and must be treated as a cross petition, against which a demurrer will not lie if the facts set up entitle the defendant to any relief against plaintiff on the contract sued.</p> <p>2.'Order Sustaining Demurrer to Answer and Cross Petition, not Final.</p> <p>An order sustaining a demurrer to an answer and cross petition setting up' breach of contract and prayer for damages does not in effect determine the action nor prevent a judgment. Whether it is final within the meaning of Sec. 6707 Rev. Stat., quaere.</p>

<p>INSURANCE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>"WANT 01’ ENDORSEMENT OF CHATTEL MOliTGAOE INCUMBRANCE ON PERSONAL PROPERTY Defeats Recovery on Policy Making it a Prerequisite.</p> <p>A condition in a fire insurance policy on personal property that it shall he void if the property is incumbered by a chattel mortgage without in-dorsement thereon is reasonable and binding on insured, and in the absence of evidence that the omission of such endorsement was the result of fraud or mistake, no recovery can be had thereon; notwithstanding an allegation and proof that insured, when the policy was taken out, had informed the agent of such incumbrance.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Insurance,” §§ 582-593. — Ed.]</p>

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

<p>PRINCIPAL AND SURETY.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Sueeties op Village Clebk Held sot Liable fob His Embezzlement of Assess-1 ment ’ Funds. ,</p> <p>Collecting and disbursing assessment funds under an improvement ordinance are not duties imposed by, nor pertaining to, the office of village-clerk under Sec. 1762 (Lan. 3720; B. 1536-663) Rev. Stat. for the embezzle-, ment of which his sureties on his official bond, conditioned that he “shalL faithfully perform the duties of the office of clerk,” are liable.</p>

<p>EXECUTORS AND ADMINISTRATORS — LIMITATIONS OF ACTIONS.</p> <p>Swing, G-iffen and Smith, JJ.</p> <p>Statutory Notice of Appointment of Administrator not Required to One Having Actual Knowledge Thereof.</p> <p>Claims accruing during lifetime of decedent on which no proceedings to enforce are instituted within two years of the appointment of his administrator are barred under Sec. 6113 Rev. Stat., notwithstanding statutory notice of issue letters of administration is not given, if claimants have actual knowledge of such appointment.</p>

<p>ACCOUNTING — APPEAL—TRUSTS AND TRUSTEES.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>1. PUBLICATION Declared in Trust by Its Founder Held Property of Trustees and Accounting Denied. ,</p> <p>Where, in response to a declaration by the founder of a religious publication that he has given it in trust to a religious society, large sums of money are contributed by devotees to aid in its establishment and increase its circulation, the trustees of such society will not be required, on the death of the founder, to render an accounting of profits and deliver the publication and rights incident thereto, to his administrator.</p> <p>2. Appeal Does not Lie in Action to Declare a Trust upon Claims of an Administrator for Money Only.</p> <p>Claims of an administrator to money on deposit in a bank in the name of his decedent in an action brought by contributors to have it declared a religious trust fund are for the recovery of money only and not ap-pealable. Nor will an averment that he does not know the exact amounts and prayer for an accounting make the action equitable in the absence of allegations that the accounts are complicated, that the banks refuse to disclose the amounts, or averments in his petition, or answer of the. trustees requiring equitable relief as to such deposits.</p> <p>3. Action for Specific Personal Property not Appealable.</p> <p>An action for the recovery of bookplates and electrotypes is one for recovery of specific personal property and cannot be determined by the circuit court on appeal.</p>

<p>Motion for preliminary injunction.</p>

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

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

Plaintiff, a fireman, was injured while under his engine cleaning out the ash pan, by a cut of freight cars being alloyved to run against the engine. He recovered a verdict below of $7,500.

<p>ASSESSMENTS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Illegality oe Assessment Excess Does not Attach to Petitioned Impbovement.</p> <p>The limitations of original See. 2271 Rev. Stat. and Sec. 53 of the new municipal code (Lan. 3604; B. 1536-213), making assessments for municipal improvements in excess of 33 1-3 per cent in five years illegal, does not apply to assessments for the cost of a particular improvement made upon petition of abutting owners therefor. But if other assessments for improvements later added to those for the petitioned improvement, exceed in the five year period the statutory limitation, the illegality attaches to the later assessments and the collection of the excess will be enjoined.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 442, 446, 447, 583, 587. — Ed.] .</p>

<p>DAMAGES — NUISANCE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Damages foe a Continuing Nuisance Cannot Follow Damages for a Permanent Injury to the Same Property.</p> <p>The measure of damages to property “completely destroyed and rendered worthless and unmarketable” by reason of a nuisance occasioned by the negligence of a city, is the difference in values of the property before and after the injury. Having recovered for a permanent injury,, the owner cannot recover for a continuing puisance also.</p>

<p>INTOXICATING LIQUORS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Petition for Residence Local Option Held not Prima Facie Proof of its-Sufficiency.</p> <p>A petition under Jones residence local option law, 98 O, L. 68 (Lan. Rev. Stat. 7283a ef seq.; B. 4364-30a et seq.), requiring a public hearing by a mayor or judge, is not prima facie evidence of its sufficiency except upon failure of any electors of the district to contest it, and the burden of proof rests upon the petitioners to prove such facts; but if an elector seeks to withdraw his own or authorized signature from the petition he has . the burden of establishing fraud or misrepresentation by which, it was secured.</p>

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

<p>ESTOPPEL —EXECUTORS AND ADMINISTRATORS — NEGLIGENCE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Gross Laches of Mortgagee in Asserting Claim against Estate of Deceased Mortgagor, Estops Suit against Bona Fide Purchasers of Deceased’s Heirs.</p> <p>Laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time and other circumstances, causes prejudice to the adverse party, and operates as a har in equity. Hence, failure of a mortgagee, having ample security in one tract of land for his loan at the death of the mortgagor, and at the time of filing the account of his administrator showing distribution to the creditors then existing, to make any effort to enforce payment on his claim until nearly eight years thereafter, when the mortgaged tract had greatly decreased in value and the remaining unencumbered tracts had been sold by the heirs to bona fide purchasers for value, and valuable improvements made thereon, constitutes gross laches in the assertion of his rights which will estop the mortgagee and his assignee from asserting any claim against the holders of the unencumbered lands.</p>

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

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

<p>COURTS — ERROR—INTOXICATING LIQUORS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>1. Jones Law Petition Hearing is Judicial Proceeding Requiring Compulsory Process por Attendance oe Witnesses.</p> <p>The hearing before a justice of the peace or judge of the common pleas, to determine the sufficiency of a petition' for the establishment of dry territory within a residence district, provided by Sec. 4 of act 98 O. L. 68 (Lan. Rev. Stat. 7283d; B. 4364-30d), is judicial in character; it comprehends the filing of the petition, process for bringing in the proper parties and a judicial inquiry according to established rules and practice. Hence, it is prejudicial error for a mayor or judge to refuse to compel attendance of witnesses, duly served and failing to appear, where request is made therefor in good faith and within reasonable bounds.</p> <p>'2. Circuit Court may Grant New Trial -upon Reversing Decision on Jones Law Petition.</p> <p>The final jurisdiction given to circuit courts by Sec. 12 of act 98 O. L. 68 (Lan. Rev. Stat. 7293a; B. 4364-301) prevents further proceedings to higher courts but does not interfere with right to grant a new trial in the court below.</p>

<p>INNKEEPERS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Guest oe Innkeeper oe Boarding House Keeper May Recover Money Deposite» with Host and Misappropriated by Servant oe Latter.</p> <p>One receiving a stipulated sum of money for hoarding and lodging and agreeing to safely keep over night money of his guest, is liable for its misappropriation by a servant of the former, whether regarded, as an innkeeper or boarding house keeper.</p>

<p>COVENANTS — LANDLORD AND TENANT.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>■^Covenants op Restriction op Doubtful Meaning Resolved Adversely to Re- . STRICTION.</p> <p>A- covenant in a lease of a storeroom of a hotel building for a cigar and tobacco business restricting the lessee from renting any other of the storerooms for such business excepting certain cigar privileges in the hotel office, bar and restaurant, is controlled by the rule of construction, that where there is doubt as to the meaning of a covenant of restriction it must be resolved adversely to the restriction without any extension or enlargement by implication in the language used, and hence, the erection and maintenance of a cigar stand in the hotel lobby is not a breach of such covenant.</p>

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

<p>TRUSTS AND TRUSTEES.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Accounting foe Corporate Stock Held in Trust.</p> <p>A transfer of corporate stock, not then paying dividends, by sisters to their brother to enable him to be elected to a salaried position in the corporation, may, in an action for an accounting many years later, when the stock has become valuable, be declared an assignment in trust by parol for the sisters, and in the absence of evidence of express disclaimer of the trust by the brother, or acts necessarily implying disclaimer for ai period equal to that prescribed in the statute of limitations, laches of the sisters or running of the statute cannot he interposed as a bar to the accounting.</p>

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

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

<p>INJUNCTION — MUNICIPAL CORPORATIONS — NUISANCE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>1. Remedy op Abutter not Adjacent to Steeet Obstruction but Injuring His, Basement is Condemnation.</p> <p>The remedy of one injured in his business by the construction of railway tracks in a street, such damages not being personal in character but resulting from a taking or impairment of his easement therein, is under Sec. 6448 Rev. Stat. to compel condemnation and not under Sec. 3283 Rev. Stat.</p> <p>2. Inconvenience Common to General Public not Bnjoinable.</p> <p>The construction of railway tracks in, and consequent raising of, the grade of a street, not impairing the immediate access to the lot of a dealer in coal and sand, will not be enjoined because of his being compelled to haul heavy loads over the obstruction thus created, the inconvenience being, of the same kind, though different in degree, from that suffered by the general public.</p> <p>3. Continuing Nuisance in Street may be Enjoined.</p> <p>The mode of construction of railway tracks in a street, causing the mouth of a sewer to be closed up, the gutters filled in and water turned into the middle of the street, and causing gulleys in front of plaintiff’s lot, materially interfering with his access thereto, constitutes a continuing nuisance for which he has no adequate remedy at law, and injunction will, issue.</p>

<p>JUSTICE OF THE PEACE.</p> <p>Norris, Hurin and Donnelly, JJ.</p> <p>Indefinite Continuance by Justice of the Peace at Request of Both Pabties not. Invalid.</p> <p>Continuance of the trial of an action by a justice of the peace for an in- . definite time at the request of both parties does not work a discontinuance of the case nor deprive him of jurisdiction; but he is vested with authority to later call up the case and fix a day certain for trial thereof, notwithstanding the time of adjournment exceeds that fixed by statute (Secs. 6534-6536 Rev. Stat., either upon the court’s own motion or request of one of the parties.</p>

<p>GAS AND OIL.</p> <p>Scribner, Bentley and Haynes, JJ.</p> <p>1. Work on On. Lease Commenced withtn Six Months as Prerequisite to Extension, of Term by Payment of Rental.</p> <p>An oil lease providing that, “operations * * * shall be commenced and one well completed witbin six months from the date hereof, and in case of failure to complete one well within such time” the lessees promise to pay “ten dollars per annum within three months after the time for completing such wells, * * * until one well shall be completed, and a failure to complete one well, or to make such payment * * * renders this lease null and void,” requires the lessee to commence work upon the premises within such six months’ period; paying the stipulated sum per annum, without commencing operations to sink a well, does not give lessees the option to sink a well or not as they choose.</p> <p>2. Payment of Rental Extends Term one Year from Termination of Six Months’ Period.</p> <p>The provision of a gas and oil lease, that the annual rental shall be payable within three months after the six months during which a well was to be completed, extends the lease one year from the termination of the six months’ period, and not from the additional three months’ period.</p>

<p>GAS AND OIL.</p> <p>Scribner, Bentley and Haynes, JJ.</p> <p>1. Lease not Extended by Lessor’s Using Gas Furnished by Lessees under Temporary Mutual Agreement.</p> <p>Lessor’s accepting and using gas for lighting and heating purposes, supplied by a gas company and paid for by lessees, in consideration for which the lessees are granted an extension of time to open a well, producing oil and gas which, by reason of the intermingling of the oil, and for want of marketable facilities of the oil was unprofitable to operate for either gas or oil, neither extend the terms of the lease nor waive conditions of forfeiture for noncompliance therewith, especially after the expiration of the term contracted for and in the absence of a well profitably producing either. Nor is lessor required directly to notify lessees to shut off the gas from the house after giving general notice of expiration of the lease.</p> <p>2. Oil and Gas Lease Held a Sale oe Petroleum Products.</p> <p>A contract to drill and operate gas and oil wells for a royalty or fixed compensation for the gas or oil produced, with time limit within which wells are to be completed and extensions of the term granted in case profitable ' wells are developed, and upon failure to complete wells within stipulated periods, subject to rental at a stipulated sum per acre or forfeiture of' lease of lands for the term, is not a lease within the ordinary acceptation of the term but is a sale of petroleum products.</p>

<p>GAS AND OIL.</p> <p>Scribner, Bentley ■ and Haynes, JJ.</p> <p>'CONTRACT FOR PRODUCING OlL WELLS NOT EXTENDED BEYOND TERM BY PAYMENTS on Nonproducing Well.</p> <p>A contract, granting the exclusive right to drill and operate gas and oil wells for the term of three years from the date thereof and as much longer as gas and oil are found in paying quantities, in consideration for which the operators were to pay a royalty on oil produced and $300 per well for gas, and in case no well be drilled within the first six months, a stipulated rental per year, terminates upon the expiration of three years unless oil or gas is produced in paying quantities; payment of yearly rental and tender of $300 per year for a nonproducing gas well will not effect an extension of its terms. Neither will a separate agreement upon consideration three years and eight mpnths after the date of the contract, granting an extension to a fixed date more than á year in the future, the terms of which are endorsed on the original agreements, continue the original contract in force beyond such fixed date, especially since no new or further efforts were made to develop oil or gas on the premises.</p>

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

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

<p>GAS AND OIL.</p> <p>Scribner, Bentley and Haynes, JJ.</p> <p>1. Designation oe Pbemises to be Operated eor Oil.</p> <p>Where the owner of three adjoining forty-acre tracts of land, leases one acre thereof to he designated by himself, agreeing that if oil or gas he obtained under the lease or on lands adjoining the same premises of which the foregoing acre is a part, lessee shall have the right to operate forty acres of the balance of such premises for oil or gas on the terms before stated, the forty-acre tract out of which the first acre was designated by the owner constitutes the forty acres to be drilled under the contract.</p> <p>.2. Plugging Test Well Drilled within Specified Time Does Not Invalidate Lease.</p> <p>A test well having been commenced and completed at a designated place within ninety days and the existence of oil ascertained sufficiently complies with the alternative provision of a gas and oil lease requiring lessees “to commence a test oil or gas well’’ at that place in ninety days. The fact that such well was immediately plugged and casing withdrawn and all operations thereon had ceased for several months does not defeat the consideration for the lease.</p>

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

<p>ELECTIONS.</p> <p>Day, Sullivan and Mooney, JJ.</p> <p>1. Temporary Change of Residence as Affecting Right to Vote.</p> <p>Presence for a temporary purpose does not secure the right to vote, and absence for a temporary purpose does not forfeit the right.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 21-23. — Ed.]</p> <p>:2. Right of Voter to have Vote Counted.</p> <p>The right to have a legal ballot counted is the right of the voter who casts it and after it has been deposited in the box, the act or omission to act of no officer can deprive the voter of this right, so long as it is reasonably certain that the ballot remains unchanged.</p> <p>'3. Affiliation with a Party as Evidence of Vote for Particular Office.</p> <p>The fact that a voter affiliates with a particular party cannot be considered as sufficient evidence of how he cast his ballot for any particular office, when the matter is in issue in an election contest.</p> <p>■4. Proof of Nationality and Age as Determining Right to Vote.</p> <p>A contestant having proved that a certain voter who was an alien could not have been naturalized on account of minority under the general provisions of the naturalization laws within one year before the contested election, is not bound to negative the exceptional circumstances under which the naturalization of such voter might have been effected at an earlier time.</p> <p>’[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 17, 18. — Ed.]</p> <p>%. Rule Determining Residence of Students.</p> <p>There is no special rule for determining the residence of students for election purposes; the same rules that determine the domicile of other persons apply to them.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 21-23. — Ed.]</p> <p>>6. Presumptions as to Legality of Vote.</p> <p>The fact that a student voted raises a presumption of the legality of his ballot and of his innocence in casting the ballot, which presumption overcomes the presumption that the domicile given on the matriculation card of such student continues until affirmative evidence of a change is given.</p> <p>7. Time Necessary to Gain Residence after Majority.</p> <p>A person during minority has not the capacity to change his domicile and a student domiciled outside the state must remain in Ohio one year after attaining his majority in addition to the necessary intent to 'change his domicile to acquire a residence for voting purposes.</p> <p>8. Right of Legislature to Impose an Educational Test for Voting.</p> <p>Under the constitution the legislature has no right to require voters to possess an educational qualification, and any act of the legislature which, has such effect, or which would prevent the judges of election from assisting other than those afflicted with blindness, paralysis, the feebleness of extreme old age, or other physical infirmity, is a limitation upon the constitutional right of the voter. Semble.</p>

<p>CONTRACTS — LANDLORD AND TENANT.</p> <p>Norris, Hurin and Vollrath, JJ.</p> <p>1. Construction of Lease of Saloon Building.</p> <p>Provisions of a lease of premises for saloon purposes, wherein tile lessee-covenants not to sell any beer other than that manufactured by the lessor, extend' to an adjoining room rented by the lessee, and, with lessor’s consent, used in ■ connection with the saloon as originally operated; and the lessee cannot, after the lessor has installed new bar fixtures in the new room, at request of the lessee, tear out the same and repudiate his lease.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Contracts,” §§ 651-695. — Ed.]</p> <p>2. Enforcement of Lease bv Injunction.</p> <p>The lessee of premises leased on condition that only beer manufactured by the lessor be sold on the premises has no adequate remedy at law for a threatened breach of such conditions, and injunction will lie to restrain same. " N 1</p> <p>[For other cases in point, see 5 Cyc. Dig., “Injunction,” §■§ 203-497. — Ed.]</p> <p>3. Validity of Saloon Lease Restricting the Sale of Beer.</p> <p>A provision in a lease whereby the lessee limits himself to the selling of only beer made by the lessor, on the leased premises, in no wise affects the public and is not invalid as a restraint on trade, or in violation of Valentine antitrust law.</p>

<p>ERROR.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>1. TffxscONnucT or Counsel Must be Shown by the Record.</p> <p>Misconduct oí counsel for the prevailing party in his remarks to the jury cannot he considered as ground of error, unless it has been properly brought into the record.</p> <p>.2. Ereok cannot be Predicated upon Testimony that Could Have Been Anticipated.</p> <p>.Error cannot be predicated upon accident or surprise with reference to testimony offered by the opposite side, where a. fair interpretation of the testimony complained of discloses nothing which could not have been -anticipated.</p>

<p>FRAUD — JUDGMENTS—PLEADINGS.</p> <p>Pomerene, Adams and Douglass, JJ.</p>

<p>EkROR to Hamilton common pleas.</p>

<p>GAS AND OIL.</p> <p>Craine, Taggart and Donahue, JJ.</p> <p>1. Cancellation oe Old Lease and Execution oe New One by Way oe ReeormaTION CANNOT BE DENIED BY PRESIDENT OE LESSEE COMPANY ON FAILURE TO Record Latter.</p> <p>Where at the request of an owner of land an oil and gas company holding a lease- of the land consents that the lease shall be reformed, and by agreement this is done by cancelling the old lease and executing a new-one, but the lessee fails to have the new lease recorded, and the owner of the land subsequently re-leases it to a third party, the company holding the first lease will not be heard to claim that the cancellation of its lease was without effect because its president in signing the cancellation acted on the belief that the cancellation would not be effective until the new lease was recorded.</p> <p>2. Drilling on Territorial Limits Described in Lease but not on Leased Land not Possessory Notice.</p> <p>The fact that the company had drilled within certain territorial limits of the tract described in the lease hut not on the leased land does not constitute such actual and open possession of the land as to give effect to the unrecorded lease under the provisions of Sec. 4112a Rev. Stat.</p> <p>3. Endorsement of Cancellation on Lease, Effect.</p> <p>Where a lease provides by its terms that it may he surrendered by the parties, the endorsement thereon of its cancellation and surrender, whether such endorsement is entitled to record on the margin of the lease record or not, constitutes a legal surrender and cancellation and surrender of the lease, notwithstanding the statutory provision that any interest in land' must he granted by an instrument duly executed, acknowledged and attested by witnesses.</p> <p>4. Record of Lease Required to Preclude Subsequent Leases.</p> <p>A lease for oil or gas has no force or validity except between the parties until the same is filed for record in the recorder’s office of the county in which the leased land is situated, and a subsequent lessee with knowledge, whose lease is recorded, is entitled to hold the premises as against all persons claiming under the prior unrecorded lease.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Cebthtcate that Money Sufficient is in the Teeasuby and Unappbopbiaied, Although Expense cannot be Estimated, Valid.</p> <p>When from the nature of the work to be done in connection with a proposed improvement it is . impossible to estimate except approximately the expense likely to he incurred, a certificate by a clerk or auditor, that there is in the treasury of the corporation and unappropriated “money sufficient to pay” for the improvement as proposed, is in adequate compliance with the requirement of Sec. 2702 Rev. Stat. that a certificate must issue to render valid contracts, agreements or other obligations involving th.e expenditure of municipal or village funds.</p>

<p>ERROR to Hamilton common pleas court.</p> <p>Cited and commented upon the following authorities: McGleary v. McLain, 2 Ohio St. 368; McKibben v. Lester, 9 Ohio St. 627; Bowers v. Pomeroy, 21 Ohio St. 184; Pfeifer v. Green, 4 Dec. 239 (3 N. P. 156); Watkins v. Schlecter, 9 Dec. 590 (7 N. P. 42); Norton v. Mc-Leary, 8 Ohio St. 205; Burton Tp. (Tr.) v. Tuttle, 30 Ohio St. 62; Derby y. Heath, 59 Ohio St. 54 [51 N. E. Rep. 547]; Eaton v. Frenchr 23 Ohio St. 560; Harding v. New Haven Tp. (Tr.) 3 Ohio 227; Meyers v. Dwight, 24 O. 0. C. 658 (4 N. S. 431); Capaul v. Railway, 26 0. 0. C. 578 (5 N. S. 262); Collins v. Millen, 57 Ohio St. 289 [48 N. E. Rep. 1097].</p> <p>Cited and .commented upon the following authorities: Job v. Harlan, 13 Ohio St. 485; Hubble v. RenieJc, 1 Ohio St. 171; Bushong v. Graham, 2 Circ. Dec. 464' (4 R. 140) ; Jones v. Booth, 38 Ohio St. 405; Cass v. Adams, 3 Ohio 223; Roberts v. Wheeler, Wri. 697; Meyers v. Dwight, 24 O. C. 0. 658 (4 N. S. 431).</p>

<p>PARTITION.</p> <p>Swing, Ciffen and Smith, JJ.</p> <p>Minoe’s interests in Partition Proceedings Protected as against Adult Co-parceners.</p> <p>Where adult coparceners conceal irom an infant coparcener the true value' of the land, and after tailing it at its appraised value sell it at a greatly enhanced figure, they will be required to account to the minor, for the profits thus derived and the court is not bound to apportion the judgment among the joint wrongdoers, but may render a general judgment against, all th.e defendants.</p>

<p>ASSESSMENTS.</p> <p>Swing, G-iffen and Smith, JJ.</p> <p>Sidewalk Assessments Levied against Subsequent Pubchasees.</p> <p>Notice to build sidewalks having been served on an abutting owner, and the walk constructed by the municipality, the assessment may be levied against a subsequent purchaser.</p>

<p>APPEAL.</p> <p>Giffen, Jelke and Swing, JJ.</p> <p>1. OBDEB BOB DISTRIBUTION OP FUND IN RECEIVERS.</p> <p>An order for distribution of a fund in an equity case is a final order in which parties affected nave no right to a trial by jury and is appealable.</p> <p>.2. Notice oe Appeal Appended to Order bob Distribution, Sufficient.</p> <p>A notice of appeal, appended to an order for distribution by a receiver, is properly given.</p>

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

<p>CHARGE TO JURY — NEGLIGENCE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Charge Requiring Defendants to Prove Plaintiff’s Negligence upon Contributory Negligence Disclaimed Held Erroneous.</p> <p>In an action for damages for personal injuries, where the defendant has disclaimed any defense of contributory negligence, a charge of court as to the burden of proving negligence on the part of the plaintiff is misleading, and taken in connection with a misstatement of the plaintiff’s age as thirteen to fourteen, when he would have been sixteen on his next birthday, constitutes reversible error.</p>

<p>EXECUTORS AND ADMINISTRATORS — LIMITATION OF v ACTIONS.</p> <p>Swing, G-iffen and Smith, JJ.</p> <p>The Two Yeabs’ Limitation Does not Run against Claim oe Wins to whicie She was Entitled to be Subbogated ebom Heb Husband’s Estate.</p> <p>The limitation prescribed by Sec. 6113 Rév. Stat. as to claims-against decedent’s estates, does not bar her administrator from recovering against her deceased husband’s estate an amount, paid by a wife out of her separate estate to liquidate his indebtedness, for which she was entitled to be subrogated.</p>

<p>ASSESSMENTS — SEWERS.</p> <p>Swing, Giffin and. Smitli, JJ.</p> <p>ASSESSMENT OF Abtjttino Pbopeety fob Seweb Consteuction.</p> <p>Assessments for construction of sewers in parts of a street, as provided for by Sec. 85 of tbe Mun. Code of 1902 (Lan. Rev. Stat. 3640; B. 1536-248), may be charged against the property abutting on the improvement by the feet" front; and the fact that parts of the street have already been sewered does not require that the assessment should be charged against all of the property on the street.</p> <p>[For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 300-383. — Ed.]</p>

<p>MASTER AND SERVANT.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Eisk Assumed by Servant Disregarding Warning as Master having Ordered:</p> <p>A servant away from the place where he is at work, giving as the reason therefor that he is afraid a wall will fall on him, and the servant disregards the order and continues his work without changing his position, and the wall falls and he is killed, an action for damages for wrongful death against the master should he taken from the jury on the ground that the risk was assumed.</p>

<p>RECEIVERS — MORTGAGE.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>CIRCUIT Court has Jurisdiction on Appeal to Punish Receiver for Wilful.. Disobedience of its Orders.</p> <p>The circuit court having jurisdiction over the person of the receiver and the subject-matter on appeal by the receiver, may enforce obedience to. its orders by proceedings in contempt as though the appointment; of the ■ receivership were made by it.</p>

<p>CORPORATIONS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>1. Original Stockholders Failing to Take New Issue Waite Rights Therein.</p> <p>Stockholders, having been given every opportunity to take their full quota of a new issue of stock,- failing to do so, waive their rights thereto. Hence, purchasers from them four years later of their stock of original issue acquire thereby no rights in the new issue. Such new stock remaining untaken becomes treasury stock-and may legally be sold by the board of directors.</p> <p>2. Sale of Stock Effecting Change of Control of a Corporation Held not Illegal.</p> <p>Obtaining control of a corporation by a combination of stockholders or by cumulative voting, in the absence of fraud or other illegal action, is not ground for setting aside a sale of treasury stock to effect such results, especially if the sale were made in the presence of all parties and by the proper officers, and since there is no claim that such stock might have been sold for more in the open market or that it might bring more at a resale.</p>

<p>CRIMINAL LAW — LARCENY.</p> <p>Swing, Giffert and Smith, JJ.</p> <p>1. INSTRUCTING THAT THE CORPUS DELICTI OF A CRIME IS ÜNCONTROVERTED ERRONEOUS on Plea op not Guilty.</p> <p>The corpus delicti is one of the material facts put in issue by a plea of not guilty. Hence, in a prosecution for receiving stolen property in which accused did not testify, instructing the jury that certain facts were not controverted, “that the goods, etc., were stolen at the time alleged from a freight car,” assumes that the crime of larceny had been committed and invades the province of the jury.</p> <p>2. Evidence op Prior Offense to Show Guilty Knowledge.</p> <p>In a prosecution for receiving stolen goods evidence of a like prior offense on the part of the accused is 'admissible as tending to prove guilty knowledge in the later transaction.</p>

<p>STREET RAILWAYS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Duty op Driver of Wagon on Steeet Cae Track.</p> <p>One driving along the track of an electric car line, with the expectation that a car will come behind him, and an opportunity to turn off the track, and in the full possession of his faculties, is without excuse if he is overtaken by a car and his wagon is wrecked and he is himself injured.</p>

<p>EMINENt DOMAIN — RAILWAYS.</p> <p>Swing, Giffen and Smith, JJ.</p> <p>Damages to Farm Lands Appropriated for Change op Grade oe Railway.</p> <p>In an appropriation proceeding, preparatory to a change of grade of a railway through farm lands, the assessment of damages to the residue of the tract must be based on present conditions, and not have reference to conditions existing prior to the original location of the railway many years before.</p>

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

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

<p>CORPORATIONS.</p> <p>Inspection oe Books by Stockholdebs of Cokpobation not fob Pboeit.</p> <p>Section 3254 Rev. StatL providing that the boohs and records oí corporations shall he open to the inspection of stockholders at all reasonable times, has no reference to corporations not for profit.</p>

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