Volume 20 — Ohio Nisi Prius Reports, New Series

<p>STATUTORY MEANING OF THE PHRASE “ NEXT OF KIN.”</p> <p>Descent — Title to Non-Ancestral Property — Passes to Children First; Then to Brothers and Bisters — Bale of Property of Decedent to Pay Debts — Failure to~ Malee the Heir by One of the Lines a Party— Knowledge of Claimant of the Proceedings — Rights by Reason of Adverse possession.</p> <p>1. The construction to be placed on “the next of kin” as psed in Subsection 6, General Code, 8574, makes the brothers and sisters of an intestate or their legal representatives nearer of kin than the parents or grandparents. The brothers and sisters of the intestate’s father and mother or their legal representatives are nearer of kin to the intestate than the grandparents.</p> <p>2. As between tenants in common the entire possession of one will not generally cause the statute of limitations on adverse title to run against the co-tenant. But if the one co-tenant’s possession is asserted as exclusive owner, openly, unequivocally, adverse, hostile and to the exclusion by overt act against and with actual notice-to the other co-tenant, it will ripen into an indefeasable adverse perfect title, in favor of the occupying tenant. ■</p>

<p>APPROPRIATION BY RAILWAY OF RIGHT TO OCCUPY STREET.</p> <p>Appropriation — Injury to Abutting Property From Occupancy of Street by Railway Track — Similar to that Suffered by the “Residue” in Ordinary Oases — Rights in Street Limited to. Such as Are Appurtenant to Abutting Lots — Pleading in Appropriation.</p> <p>1. In the absence of any provision in the municipal code for an answer in an appropriation proceeding, a motion to strike an answer in such a case from the files will be granted.</p> <p>2. The so-called “day light” ordinance is a valid enactment and controls the use of Front street, Cincinnati, by the railway companies occupying that street.</p> <p>3. Where no physical part of a lot is taken, but the appropriation relates to occupancy of the street with an additional railway track, the injury to abutting property is similar to that suffered by the “residue” in ordinary -cases of appropriation.</p> <p>4. Rights in the street, appropriated in such a case, are such as are appurtenant to the abutting lots, and where one of the abutting lots is used in connection with other land as a part of the same plant, but such other land does not abut on the street, testimony as to damages likely to result to such othe1' land is not admissible.</p>

<p>INVALIDATION OF CONTRACTS AFFECTING FOREIGN CORPORATIONS FOR. FAILURE TO COMPLY WITH REGISTRATION STATUTES.</p> <p>Corporations — Effect of Failure by Foreign Corporation to Register— Provision of the Statute Rendering Contracts With Such Companies Invalid — Not Applicable to Unilateral Contraéis — Character of the Contracts Entered into by Foreign Corporations upon Which Citizens of This State May Bring Suit.</p> <p>Section 5508, General Code, invalidating every contract affecting the liability of a foreign corporation rendering it wholly void preventing suit thereon when such corporation fails to comply with the registration statutes, does not have reference to and make void unilateral contracts, those upon which there remains only the obligation of payment. On the contrary, it has reference to contracts on which citizens of this state may bring suit. A contract affecting the liability of a foreign corporation may be invalidated under the statute when its full terms give a right to the foreign corporation to bring action thereon, in which case the citizen of the state may claim that the contract affects the liability of the corporation; and not having complied with the registration laws it may not maintain its action, its contract being rendered wholly void.</p>

<p>COSTS IN ACTIONS BASED ON INJURY BY A MOTOR VEHICLE</p> <p>Costs — Section 11625 Not Repealed Toy Implication — Each Party to Pay His Own Costs, When.</p> <p>F, a resident of Clark county, Ohio, sues E, a resident of Fairfield ■county, Ohio, an owner of a motor vehicle, ip the Court of Common Pleas of Clark County, Ohio, for injury to property under favor of Section 6308, General Code. Verdict is returned for plaintiff for five dollars. »</p> <p>Held: That Section 6308, General Code, does not repeal Section 11625 by implication and that each party to the action must pay his own costs.</p>

<p>ACTIONS UNDER THE FEDERAL EMPLOYERS’ LIABILITY ACT.</p> <p>Master and Servant — Action by Raihoay Employee Injured While Engaged in Interstate Commerce — Doctrine of Res Ipsa Loquitur Not Ordinarily Applicable to Such a Case — Nature of the Two Tears Limitation — Effect of Acceptance of Other Employment and Subsequent Discharge Therefrom.</p> <p>1. In an action for injuries under the federal employers’ liability act the doctrine of res ipsa loquitur does not apply unless some compelling reason, such as positive negligence on the part of the master, makes its application necessary.</p> <p>2. The provision of the federal employers’ liability act, that suit thereunder must be brought within two years, is not a statute of limitations but a condition of the right accorded to bring an action.</p> <p>3. An offer by the master to give to an injured employee suitable employment during the period of his disability and the acceptance of such offer constitute a' complete contract, and the right of action for damages on account of the injuj-y becomes merged in this contract, and the subsequent discharge of the employee does not revive his original action for tort but remits him to one (or damages for breach of the contract.</p>

<p>STOCKHOLDER’S RIGHT TO INSPECT BOOKS OF COMPANY.</p> <p>Corporations — Right of Stockholder to Inspect Books — In No Way Depends on Sis Motive or Purpose — Allegations Warranting Injunctive Relief.</p> <p>1. A petition which discloses that th© plaintiff is a stockholder in the defendant company and that he has requested the defendant corporation to permit him to inspect the hooks and records of the company and to' fix a reasonable time for so doing, which allegations are admitted hy the company which has refused the request, states a cause of action justifying an injunctive Order allowing such inspection.</p> <p>2. Where a suitor demands opportunity for the exercise of a clear right given him hy law, his motive for such action is not a proper „ subject for judicial investigation, whether the remedy he legal or equitable.</p>

<p>CHILD OF TENANT FARMER. INJURED BY FALL OF BARN DOOR..</p> <p>Negligence — Proximate Cause Not Necessarily the Direct and Immediate Cause — Remote Act in Point of Time — Concurring at Time of the Injury With a Second Act — May he the Immediate and Efficient Cause of the Injury — Criticism of the Expressionless Statement that the Question of Proximate Cause is Ordinarily One for the Jury.</p> <p>1. Where property is out of repair and in a ruinous condition, and at the time of leasing, as well as after possession taken by the lessee, the lessor promises to repair, and injury occurs to a child of the tenant from the failure of repair, the lessor is liable therefor. (Shindelbeck v. Moon, 32 O. S., 264, 267.)</p> <p>2. Where an intervening cause contributes to such injury resulting from the use of the premises, and such as might be naturally and probably be produced by the neglect or omission to repair the same, and one which in the light of all the circumstances could and should have been forseen as likely to occur, the same is to be regarded as the proximate cause of the injury.</p> <p>3. The conception that the proximate cause of the injury is necessarily the direct and immediate producing cause of injury correctly states the legal doctrine, where the intervening cause is one which in the light of all the circumstances should have been foreseen as likely to occur. In such case the prior or antecedent act and not the one nearest in point of time, is to be regarded as the direct and immediate cause of the injury. (Stockberger v. Ames Shovel & Tool Co., 21 C.C.(N.S.), 424, distinguished; Railway v. Rippon, 8 C.C.(N.S.), 334, and Lang v. Railway, 7 C.C.(N.S.), 405 followed).</p> <p>4. When ultimate facts stated in petition disclose that the party responsible for an antecedent or prior act should have foreseen an intervening act as likely to occur, the. prior act is to be regarded as the direct and immediate cause of injury; therefore, demurrer to petition should be overruled.</p> <p>5. Whether the antecedent or prior act of negligence, or the intervening act is to oe regarded as the direct and immediate cause of injury, is to be determined by the fact whether the one responsible for the first act may reasonably have foreseen that the second or intervening act should, could or would probably or reasonably have been foreseen.</p>

<p>EXPENSES OF DEFENDING A WILL.</p> <p>Estates of Decedents — Expenses Incurred in Defending a Will — May be Charged Against the Estate, When — Success of the Defense Not a Determining Fact — Executor Must Act from Disinterested Motives and the Estate Must Receive Some Benefit.</p> <p>1. An action to contest a will is a statutory proceeding controlled by the parties, the ultimate object thereof being to determine their rights to the property devised, and wherein the estate is not increased nor diminished nor affected by the result.</p> <p>2. Under ordinary circumstances those claiming under the will are the proper parties to defend it when assailed, and as a general proposition an executrix is not called upon to engage in the contest and charge the estate with the expense thereof. If the beneficiaries make no defense and request or permit her to do so and she is successful, her right to credit in her account for expenses incurred is not absolute but will depend upon the circumstances of such particular case.</p> <p>3. A circumstance of great weight is her interest or lack thereof in the result of the contest. If a devisee under the will, she is interested in sustaining the validity thereof and a presumption arises that she engaged in the contest in defense of her own personal interest, and because thereof she may not, if successful, charge the estate with her proper expenses unless it appear that she assumed the burden from disinterested motives and that her defense inured to the benefit of the whole estate.</p>

<p>LIABILITY OF PARENT FOR. ASSAULT BY MINOR SON.</p> <p>Parent and Child — Pleading—Father Charged With Negligence — In Permitting Minor Son to Assault Plaintiff.</p> <p>Where a petition charges liability against parent and minor child, for the tort of the child, and the only averment against the parent is his negligence in failing to protect the complainant, the parent having notice of the child’s previous feckless and bad character, but no averment charging both as joint tort feasors, a demurrer on the ground of misjoinder of parties defendant will be sustained.</p>

<p>RIGHTS OF A WIDOW GIVEN A LIFE INTEREST IN A RESIDUARY FUND.</p> <p>General Bequest oj Income — Begins to Run at Death of Testator, When —First Year’s Allowance — Compensation to Executrix Who is Also Life Tenant.</p> <p>1. A bequest'by a testator to bis wife of all tbe income from bis estate, real and personal, during ber natural life, is a general bequest of tbe income from tbe residuary fund of bis estate and begins to run from tbe moment of bis death.</p> <p>2. Where tbe will does not expressly direct that tbe bequest of tbe entire income from tbe estate shall be in lieu of tbe first year’s allowance, tbe widow upon electing to take under tbe will is entitled to ber first year’s allowance.</p> <p>'¿. A life tenant who is also the executrix of the estate is entitled to compensation on the entire amount of the estate coming into her hands, and should not be limited to the amount collected and disbursed, where the estate is in the form of securities which are to be held by her for the purpose of paying the income therefrom to herself.</p>

<p>ELEMENTS CONSTITUTING THE DIFFERENT DEGREES OF MURDER.</p>

At the November election, 1916, Frank T. Andrews, Joseph Menning and James T. Kelly were the Democratic candidates for the office of county commissioners, and each received, respectively, 63,471, 61,314 and 59,131 votes. Fred R. Kohler, Alva R. Dittrick and John A. McDonald were the candidates on the Republican ticket for county commissioners, and received, respectively, 56,574, 56,609 and 55,414 votes.

<p>FAILURE TO JOURNALIZE A DECREE OF DIVORCE.</p> <p>Divorce — Motion for a New Trial Does Not Lie, When — Decree May be Entered Nunc Pro Tuno at a Subsequent Term.</p> <p>1. A motion for a new trial does not lie in a divorce case in which alimony is not involved.</p> <p>2. Where at the conclusion of the hearing of a divorce case the court announces the granting of a decree, but owing to the inability of counsel to agree no entry was made on the journal, the court may at a subsequent term order that a decree be entered as of the date of the hearing and determination of the case.</p>

<p>DETERMINATION BY THE COURT AS TO THE DEGREE OF CRIME COMMITTED.</p> <p>Criminal Law — Accused Pleads Guilty of Murder — Degree of Crime Determined by the Court — Purpose to Kill May be Implied from Atrocious Acts — Testimony Tending to Show Self-Defense and Provocation — Application of the Rule as to Reasonable Doubt.</p> <p>1. In the case of one convicted by confession in open court in a capital case, it is permissible to hear testimony in support of claims of provocation and self-defense for the purpose of reducing the grade of the crime to manslaughter.</p> <p>2. The reasonable doubt rule inures for the benefit of the defendant where the degree of crime is to be determined by the court as well as where it is left to a jury.</p> <p>3. Extraordinary cruel, brutal and atrocious acts on the part of the defendant in connection with the commission of the crime warrant an inference of implied malice and a purpose to kill.</p> <p>4. Where the victim was killed by blows and kicks, inflicted in two attacks separated by a short interval of time, and it is uncertain whether the fatal blow was inflicted during the first or second attack, and the only evidence of a purpose to kill was .a threat uttered during the interval between the attacks, an application of the reasonable doubt rule requires that the crime be fixed at murder in the second degree.</p>

<p>REMOVALS UNDER. THE CIVIL SERVICE LAW.</p> <p>Office and Officer — Removals from the Classified Service — No Right of Appeal Where the Removal Was not Made in Accordance with Law — Failure to File Charges — Mandamus.</p> <p>1. No right of appeal exists where a removal has been made from the classified service otherwise than in accordance with law.</p> <p>2. Demurrer does not lie to a petition in mandamus filed by a police officer who alleges that he has been removed from office without cause and without being furnished a statement of the reasons for his removal.</p>

<p>MINORS NECESSARY PARTIES.</p> <p>Partitions — Interest Held -by Minors — Answers by Guardians Not.Suffl- . . dent — But .the Minors .Themselves Must be Made Parties -and Served With Siimmons — Full llames of All Parties to an Action Should Appear in the Caption, of the Petition dnd Again in thDecree.</p> <p>In an action for partition of propérty in which an interest iis held by said minors, the fact that the guardians of said minors have been made parties and have filed answers is not sufficient, but the minors themselves must also be made defendants and be served with summons.</p>

<p>ACTION BY AN EXECUTRIX ON A NOTE.</p> <p>Actions — Executrix Sues in Her Representative Capacity — On Indebtedness Evidenced by Note Executed to Her Individually.</p> <p>An action lies by an executrix in her representative capacity on an indebtedness due the estate of her decedent, notwithstanding the note which now evidences the debt was made payable to the executrix individually when given in exchange for the original note which was payable to the decedent and against which the statute of limitations has run.</p>

<p>MEASUREMENT OF THE DISTANCE PUPILS MUST TRAVEL TO SCHOOL.</p> <p>Schools — Provision of Transportation of Pupils to the Nearest Public School — How the Distance Should be Measured — Section 7731, (?. G.</p> <p>Under the law providing that in all rural and village school districts ■transportation shall be provided for pupils who live more than two miles from the nearest school house, distance is to be computed by including the distance from the exit of the eurtilege by the most direct path or way to the point where it intersects the highway leading to the school house. ■</p>

<p>IMPERFECT LIENS VALIDATED.</p> <p>Mechanic’s Liens — Holders of Claims Protected — Where Perfection of Liens Was Prevented by Owner of the Property.</p> <p>Mechanic’s liens will be recognized and ordered paid, where failure of the sub-contractors and material-men to perfect liens was due to duplicity of the owner of the property, who took title thereto under an assumed name and thus prevented her identity from becoming known to those holding claims against her upon which they were entitled to obtain valid liens.</p>

<p>SERVICE ON MANAGING AGENT OF FOREIGN CORPORATION.</p> <p>Summons — Service on Managing Agent of a Foreign Corporation — Invalid When Interest of the Agent is Antagonistic to that of the Corporation.</p> <p>Service of summons against a foreign corporation on its managing agent, who 'has a personal interest in such proceeding as plaintiff or otherwise, antagonistic to his duty in the capacity in which he is served with process, is unauthorized and will confer no jurisdiction even though the person served is within the terms of the statute authorizing service.</p>

<p>INJUNCTION AGAINST VIOLENCE AND INTIMIDATION BY STRIKERS.</p> <p>Strikes — Proper Purpose of Picketing Destroyed by Use of Groups of Pickets — Individuals Amenable for Violence and Intimidation —But the Union as a Glass Gam. Not be Reached! by Injunction, on the Ground of Agency, Unless — Encouragement aiid Ratification of the Use of Violence — Free Speech as Against Property Rights — Use of Scurrilotis Printed Matter Subject to Injunction.</p> <p>1. An excessive number of pickets about a plant in which a strike has been declared is calculated to defeat the avowed purpose of the union to peaceably persuade the men at work to join the strike, and such a purpose is also defeated by the use of a number of automobiles, loaded with strikers, which are used to follow- th'e men at work to their homes at night, deriding them in an abusive and obscene way accompanied with threats. Such practices .go beyond the right of a union to picket. In the instant case the court limits the number of pickets to two, with the use ’ of but a single automobile containing not more than two men, other than said two pickets.</p> <p>2. Injunction lies against individual members of a union who havé been shown to have for the purpose of intimidation, interfered with the business of the plaintiff employer and destroyed property rights by participating- in or encouraging assaults upon men remaining in its employ, the stoning of their homes, breaking of windows and scattering scurrilous printed matter concerning them; but in the absence of evidence that such conduct was authorized or approved and encouraged by the three thousand officers and members of the union, they can not, in a class suit, be reached as a class by injunction on the theory of agency in the perpetration of past unlawful acts by such individuals.</p> <p>3. Where an injunction has been issued against such individuals, and, with knowledge thereof, other members of the general class wilfully do acts so enjoined, such other members will thereby, in effect, place themsejves subject to the injunction s,ncl punislimeut for its violation,</p> <p>4. An injunction issued in a strike ease restraining the distribution of so-called “scab” circulars, and the making of verbal or written threats in the furtherance of a conspiracy to practice intimidation, etc., decs not violate the free speech provisions of our Constitution, at least when such order is limited to the prohibition of such acts “for the purpose of intimidation, etc.”</p>

<p>NATURE OF TITLE CONVEYED BY A BEQUEST.</p> <p>Wills — Bequest of Entire Estate Held to Have deen a Bequest of a Fee Simple Title.</p> <p>A bequest “to my legally adopted daughter” of “all my property, real, personal and mixed, the same to be hers in fee simple,” is a bequest of a fee simple title to all said property, and not of a mere life estate, notwithstanding a different provision is made of said estate in a subsequent item of the will, to become effective in the event of the death of said daughter occurring before that of the testator or in case of failure ou her part to claim said estate.</p>

<p>SUMMONS ON NON-RESIDENT DEFENDANT IN ACTION FOR ALIMONY.</p> <p>Divorce and Alimony — Service of Summons Must be by Publication— Where the Action is for Alimony and the Defendant a Non-Resident —Section 11984.</p> <p>Where the defendant in an action for alimony is a non-resident, service of summons must be by publication, and a motion lies to set the service aside where the return shows that it was personal and not by publication, f aY.-.m , ,r~, r ; -,, ?</p>

<p>RIGHT OF POLICE OFFICERS TO STOP PUBLIC MEETINGS.</p> <p>Free Speech — Constitutional Guaranty of — Not Violated by Police Officers in Preventing a Public Meeting Likely to Result in Disordei — Courts Without Authority to Interfere With the Discretion of Munncipal Officers in Their Efforts to Keep the Peace.</p> <p>1. Municipal authorities are charged with the duty of maintaining peace and order in the municipality, and if in their discretion they are of opinion that statements made in public places are seditious or treasonable, or of such a nature as to cause disorder and disturbance of the peace, it is their duty to interfere and, if necessary, to put an end to such meeting.</p> <p>2. A court can not control public officers in the exercise of their discretion to preserve the public peace and order of the municipality.</p> <p>3. The Congress of the United States having declared war, and the country being in a state of war, a court will not grant an injunction interfering in any manner with officers of the civil law acting in their discretion to prevent public disorder.</p>

<p>CLAIM FOR TUITION FOR PUPILS ATTENDING SCHOOL IN AN ADJOINING DISTRICT.</p> <p>Schools — Pupils Attend a Nearer School in Another District — Construction of the Statutory Provision for Notice of Claim for Tuition for Such Pupils — Acquiescence of Board of Residence District in Such Attendance — Offer of Transportation.</p> <p>1. The notice required by Section 7735, which permits children residing more than one mile and a half from the school to which they are assigned to attend a nearer school in another district, is a notice from the board of education of the district in which the children are attending to the board of the district in which they reside that a claim will be made for their tuition, the purpose of such notice being to give the debtor broad opportunity to settle the claim before the expense of suit is incurred.</p> <p>2. Knowledge of the board of the district in which the children reside of tlie fact that they are attending school in an adjoining district and acquiescence therein is sufficient to satisfy the requirement as to notice.</p> <p>3. The statutory provision “or transportation of pupils provided” does not constitute a defense against payment of such a bill for tuition, where the furnishing of transportation was discussed and perhaps proffered, but was not actually provided.</p>

<p>EVIDENCE WARRANTING CONVICTION OF ABORTION.</p> <p>Criminal Law — Elements Constituting the Crime of Abortion — Corroboration of Accomplices — Proof as to the Negative Pact that the Operation Was Not Necessary to Save the Woman’s Life.</p> <p>The testimony of the two accomplices to an abortion, alleged to have been committed by the defendant, is sufficiently corroborated when there is other evidence to the effect that the woman upon whom the crime was committed visited the office of the defendant, a physician, and forty-eight hours thereafter aborted; that she was young and unmarried and was acting without the knowledge of her parents; that she had made admissions to a physician of her condition; and as to the negative fact, that the operation was not necessary to save her life, that she was in good health as shown by the fact that she had been employed up to the time of the operation and walked to the office of the defendant on that day.</p>

<p>THREE-FOURTHS VERDICT VALID IN WILL CASES.</p> <p>Wills — Contest of — Attorney Who Witnesses Will Competent as a Witness to the Testamentary Capacity of the Testator — Alleged Declarations by a. Deceased Witness to a Will as to Incapacity of Testator Not Admissible — Verdict by Three-fourths of Jury Authorized in all Except Criminal Cases.</p> <p>1. Where one about to make his will consults with an attorney and makes communications to him in that capacity, and after the will is drawn requests the attorney to act as a witness thereto, he will he regarded as having thereby given express consent that the attorney may appear and testify as to the validity of the said instrument, both in the probate thereof and in any subsequent proceeding affecting its validity; and in so testifying he may speak of communications made to him by the said decedent during their relation of attorney and client and having respect to the said will, and to advice given to the testator as a client at the time of the making of the will, where the testimony so offered bears upon the testamentary capacity of the testator.</p> <p>2. By attaching his name thereto a witness to a will certifies by implication that the testator is of sound mind and in the possession of testamentary capacity, and in a contest of the will the testimony of witnesses who would say, if permitted so to do, that one of the witnesses -to the will, now deceased, had stated subsequent to its execution that the will was invalid because of the incapacity of the testator is not admissible.</p> <p>3. Nor is testimony competent in chief as to alleged declarations by the two beneficiaries named in the will reflecting on the testamentary capacity of the testator, and where such testimoney is offered in rebuttal it is not error to limit it to the effect it might have on the credibility of said witnesses.</p> <p>4. The constitutional amendment providing for a three-fourths verdict, together with the statutory amendments carrying it into effect, is not limited to a technical construction of the words “civil action,” but applies to all cases tried in the common pleas, municipal or justices courts which, are not criminal cases.</p>

<p>LIEN OF DEBENTURE HOLDERS OF A CONSTITUENT COMPANY.</p> <p>Railways — Validity of Lien of Debenture Holders of a Constituent Company — Where the Consolidated Company Assumed all Debts and Liabilities of the Constituent Company — Property of the Old Company Treated as Still in Existence — Notice of Lien.</p> <p>1. Debentures issued by a constituent company prior to consolidation have priority in the distribution of the fund derived from the sale by a receiver of tbe property of tbe consolidated company, in so far as said fund was received for assets which formerly belonged to the constituent company, where the consolidated company “assumes all the debts, liabilities and contracts of the constituent companies and is to pay off and extinguish all debts and liabilities of every kind and nature of each constituent company.”</p> <p>2. Creditors of the new company will be held to have had, in law, no- . tice of such lien, in the same manner that they would be held to have had notice of a prior recorded mortgage upon the same property.</p>

<p>LEGALITY OF THE FILING OF PAPERS AFTER OFFICE HOURS.</p> <p>Reasonableness of Rule of County Cleric — Permitting Papers to be Treated as Filed as of Same Date — Where Left for Filing After Office Hours-.</p> <p>A transcript from a justice of the peace was placed, late on the thirtieth day after rendition of the judgment, in a box provided by the county clerk and placed at the door of his office for reception of papers left for filing after the closing of the office for the day, and on the following morning the transcript was stamped by the clerk as filed on the day it was placed in the box. Held: That the motion to dismiss the appeal on the ground that the transcript was not filed within the thirty day period should be overruled.</p>

<p>ILLEGAL ARRANGEMENT FOR SETTING ASIDE A WILL.</p> <p>Wills — May Not be Set Aside by Consent or Collusion — Purchase of Legacies for Such a Purpose Illegal — Agreements Which Public Policy Does Not Permit — Circumstances Under Which a Will Contest Will be Dismissed.</p> <p>1. The law of Ohio forbids the setting aside of a will by the consent or collusion of those who are interested as beneficiaries and contestants.</p> <p>2. A scheme by one who is contesting a will, whereby it is sought to settle with the legatees by purchasing and securing assignments of their legacies, with the intention and for the purpose of having the will set aside, is illegal and against the public policy of this state.</p> <p>3. It is contrary to the public policy of Ohio for agreements to be made by the contestant of a will, which have the tendency to retire litigants, who are legatees under the will, from the suit, and thus to make it possible for other legatees to be defeated in their rights.</p> <p>4. Where the plaintiff in a suit to contest a will, undertakes to make an adjustment with the legatees by the purchase of their legacies, with the intention of setting aside the will, but succeeds in making an adjustment with only two of them, the continued prosecution of the suit contesting the will should not be permitted after the facts have been brought to the attention of the court, because the plaintiff is found to be on both sides of the suit. Equity will not permit the same person to hold under and against a will.</p>

<p>AS TO THE PAYMENT OF WARRANTS ON EMERGENCY LEVIES.</p> <p>Mandamus — Does Not Lie to Compel a County Treasurer to Pay Warrants on an Emergency Fund — While Injunction Suits Are Pending, Although No Restraining Order Has Been Issued.</p> <p>file court will not compel by mandamus, a county treasurer to pay a warrant on a fund created by an alleged emergency levy under favor of Section 7419, General Code, when there is pending against said -treasurer two suits in injunction, one of which seeks to enjoin the collection of the tax and the other to enjoin the treasurer from paying moneys from the fund so produced, where said suits attack the validity of the levy, notwithstanding the fact that no temporary order was issued in either of said suits for injunction and no -bond given.</p>

<p>PROHIBITION OF PUBLIC MEETINGS ON THE STREETS WITHOUT A PERMIT.</p> <p>Free Speech — Constitutional Guaranty of, Not Violated — By Ordinance Requiring a Permit to Hold a Public Meeting in the Street — Power to Issue Such Permits Property Lodged in the Director of Public Safety — Socialistic Meetings Prohibited.</p> <p>1. A city ordinance making it unlawful for any person to hoi l a public meeting for the purpose of speaking whereby a number of people are gathered together so as to delay traffic or interfere with the free and uninterrupted use of the streets of a city, unless such person shall first have obtained a permit so to do from the director of public safety of said city, is a valid ordinance.</p> <p>2. The requiring of a permit, as set forth in the first syllabus, does not take away the constitutional rights of the people to assemble, nor does it interfere with the rights of free speech, guaranteed by the Constitution of the state of Ohio and the United States of America.</p> <p>3. It is the duty of a city council to keep the streets open and free from nuisance.</p> <p>4. It is within the power of a city council to delegate to the safety director the authority of granting or refusing permits to speak .on the public streets, whereby a number of persons are gathered together so as to delay traffic or interfere -with the free and uninterrupted use of the street by the public.</p>

<p>Heard on motion for a new trial.</p> <p>cited and commented upon 45 O. S., 222; 5 Ohio, 98; 50 L. R. A., 720 (note); 34 Mass., 140; s. c. 28 Am. Dec., 282; 68 Iowa, 460; s. c. 27 N. W., 459; 45 N. W., 81; 132 U. S., 220; 10 Dec. Rep., 424 (21 Bull., 122); 81 O. S., 280; 1 N.P. (N.S.), 273; 2 C.C., 381; 83 O. S., 378; 26 O. S., 659; 4 Elliot on Contracts, 297; 28 Am. Dec., 282; 3 Bates Pleading and Practice, 2452.</p> <p>cited and commented upon I Jones on Liens, 731, 44, 12; Ohio Lien Laws (Treadway and Marlett, 2d Edition), Section 163; 83 O. S., 378; 44 L. R. A., 561; 20 Pick, 399; 25 N. H., 155; 31 Mass., 332; 68 Am. Dec., 539; 178 Mass., 163; 49 Pac., 768; 146 Pac., 665; 68 C. C. A., 19; 9 N.P. (N.S.), 268 (affd. 86 O. S., 313).</p>

<p>PARTNERSHIP LIABILITY.</p> <p>Promissory Notes■ — Proceeds of Note Executed by Individual Member Used in Partnership Business — No Recovery Thereon Against the Partnership.</p> <p>One who has paid the note of an indiyidual member of a partnership is without right of recovery against the partnership, either on the note or for money had and received, notwithstanding the proceeds of the note were used in partnership business.</p>

<p>SPECIAL VERDICTS.</p> <p>Plaintiff and Her Niece Attempt to Board Oar — Plaintiff Enters Butt Door is Shut in Face of Niece — Plaintiff Demands of Conductor That Niece be Permitted to Enter or Herself Leave — Conductor Intimates She Better Leave and Opens Door — While Alighting the Car Started and Plaintiff Was Thrown Upon the Pavement— and Permanently Injured — Verdict for $17,000 Sustained — Special Verdicts — Section 11462.</p> <p>1. When a special verdict is requested, under favor of Section 11462, General Code, it is proper practice for the party requesting it to present such form of special verdict as he thinks the evidence warrants, which, with form presented by the other side, if any, may be given to the jury for its use, under instructions that they are not bound to use any form presented, but may themselves prepare one of their own entirely different, as they may find the facts to be from the evidence in the case.</p> <p>2. It is not error for the jury to be informed as to which parties presented the several forms of special verdict, if such are prepared for their use.</p> <p>3. A special verdict being requested, the court is bound to instruct the jiury as to the issues in the case and the proper form of the verdict and the specific facts to be found; if, however, the court goes further and also instructs generally as to the law of the case as he would were no special verdict requested, there is no prejudicial error for which a new trial should be granted, provided the charge so given is a correct statement of the law.</p> <p>4. If a special verdict returned by the jury finds not only the facts as established by the evidence, but also contains conclusions of law and a recital of evidence, it is not necessary to grant a new trial, provided the special verdict so presents the facts found by the jury, disregarding its conclusions of law and recital of evidence, that nothing remains for the court but to draw from the facts so found conclusions of law.</p>

<p>APPLICATION OF THE DOCTRINE OF ATTRACTIVE NUISANCE.</p> <p>Attractive Nuisance — Child Injured While Meddling With a Pulley— Used by House-Movers and Left in the Street — No Liability on the Part of the Contractor.</p> <p>A contractor, engaged in moving a house, is not liable in damages for injury to a child who got his hand caught in a pulley which had been left in the street.</p>

<p>FEES TO ATTORNEYS IN ACTIONS FOR ALIMONY SETTLED WITHOUT THEIR KNOWLEDGE.</p> <p>Divorce and Alimony — No General Equitable Jurisdiction in Ohio— And no Statutory Authority for an Order for Payment of Counsel Fees — In an Action for Alimony Settled Without Assistance from Counsel.</p> <p>General equity powers are not conferred upon Ohio courts in divorce and alimony matters, and in the absence of statutory authority an application by counsel for a wife for attorneys’ fees' and other expenses, to be made a lien upon the property of the husband in an action by the wife for alimony, which was settled -out of court without the knowledge of her counsel, must be denied.</p>

<p>STATUS OF A DEAL BETWEEN ATTORNEY AND CLIENT.</p> <p>Attorney and Client—Presumption as to Validity of Dealings Between—Purchase of Rights of Expectant Heirs and Reversioners—Burden on Attorney to Show Adequacy of Price Paid—Rights Coupled With Liability Not Assignable.</p> <p>1. Tbe presumption always arises against tbe validity of a purchase or sale between client and attorney during tbe existence of tbe relation.</p> <p>2. Tbe business of attorneys making loans on and purchasing interests ■of expectant heirs and reversioners, while not presumptively fraudulent, will be viewed by tbe court with tbe strictest scrutiny.</p> <p>3. In case of sale by client to an attorney, while the relation of attorney and client exists and in event of a suit in equity to set such sale aside on tbe ground of fraud, tbe client is not required to show that tbe price paid was inadequate. Tbe burden' is upon tbe attorney to show that it was adequate.</p> <p>4. If tbe rights arising out of a contract are coupled with a liability thereunder, they can not be assigned.</p>

<p>ORDINANCE PROHIBITING PROFANITY IN PUBLIC PLACES RENDERED INVALID BY EXCESSIVE PENALTY.</p> <p>Use of Profanity in Public Places — Penalty Fixed in Prohibitory Ordinance — Must Not Exceed that Prescribed by Statute for Disturbing the Peace — Affidavit Charging Profanity Need Not Set Forth the Language Used — Section 3665.</p> <p>1. An affidavit charging a disturbance of the good order and quiet of a municipality by using profane language in a public place is not defective for failure to set forth the profane language claimed to have been used, particularly since the gist of the offense charged was the disturbance of the peace and the accused understood the charge and called several witnesses upon the precise proposition as to whether profane language was used.</p> <p>2. The penalty for the violation of an ordinance is an inseparable part of it and, if illegal or excessive, invalidates the ordinance; hence, an ordinance, making it an offense to disturb the good order and quiet of the municipality “by using profane language” and imposing a maximum fine of $200, is invalid in that it exceeds the maximum penalty of $50 prescribed by Section 3665, General Code.</p> <p>3. A court imposing a sentence ordinarily takes into consideration the nature of the offense committed and the maximum and minimum penalties prescribed for its violation; and a fine of $50 imposed for violation of an ordinance prescribing a maximum penalty of $200 would be excessive when the statute authorizing such ordinance prescribes a maximum penalty of only $50.</p> <p>4. Since Section 3665, General Code, limiting fines to $50 as punishment for disturbing the peace and other minor offenses prescribed by Section 3664, was not repealed by 96 O. L., 20, the Municipal Code of 1902, by 99 O. L., 4, nor by 103 O. L., 168, amending Section 3664, and as Section 3665 is special and specifically applies to Section 3664 and no other, it must control as against Section 3628 prescribing punishment for violation of ordinances generally and for more serious offenses.</p>

<p>DETERMINATION AS TO WHETHER PROPERTY IS ANCESTRAL.</p> <p>Wills — Devise of Real Property to Son — Made Subject to Payment by the Son of a Legacy to Daughter — Property Not Acquired by Purchase by Reason of Said Payment.</p> <p>The character of property devised is not changed from ancestral to non-ancestral by the fact that the devisee is charged with payment of a legacy to one named in the will and the property is made subject to a lien securing said payment.</p>

<p>THERE CAN ONLY BE ONE LEGAL WILL IN FORCE AT THE DEATH OF A TESTATOR.</p> <p>Wills — Grounds for Refusing to Admit a Lost, Destroyed of Spoliated Will to Probate — Prestimption that a Second Will Was Destroyed by Testatrix Prior to Her Death — Effect of Disability Subsequent to the Making of a Second Will — Circumstances Showing Intention to Republish a Former Will.</p> <p>1. Where a second will can not be produced, and there is no evidence that it was lost or destroyed after the death of the decedent or was in existence at the time of her death, a presumption arises that it was destroyed by the testatrix herself, and the burden of proving the contrary is on the proponents.</p> <p>2. The fact that the decedent was under legal disability for some time after the making of said second will, which required the appointment of a guardian, does not raise a presumption that the second will was destroyed by her during such disability, when it appears that time intervened between the making of said will and the beginning of 'her disability and also between her restoration to reason and her death.</p> <p>3. An endorsement made on her first will by testatrix in her own handwriting, in which she attempted to change the beneficiary of one of the legacies therein subsequent to the execution of her second will, must be treated as a supplement or codicil of her first . will, but in the instant ease was without force or effect, for the reason that it was not witnessed and also because it was made during the period of her disability.</p> <p>4. The fact that the testatrix was under legal disability at the time the said endorsement was made does not necessarily show mental incapacity, but may be regarded as a circumstance indicating an intention on her part to republish her first will.</p> <p>5. A second will, as contemplated by Section 10562, must-have had a legal existence at the time of the death of the testator and Sections 10543 and 10546 must be read and considered in connection with Section 10562. There can not be at the death of the testator more than one legal will in force.</p>

<p>JURISDICTION OVER MINORS UNDER EIGHTEEN YEARS OF AGE CHARGED WITH CRIME.</p> <p>Minors Charged With Crime — Juvenile Court Vested With Exclusive Jurisdiction — Where Accused is Under Eighteen Years of Age — Indictment Void Where Accused Was Bound Over Toy a Magistrate.</p> <p>1. The juvenile court has exclusive jurisdiction over minors who are under eighteen years of age and charged with crime, whether misdemeanor or felony.</p> <p>2. Where a minor under eighteen years of age is charged with a felony, it is discretionary with the juvenile judge whether he will commit him to the care of a probationary officer or the state reformatory, or bind him over to the grand jury under the general criminal laws.</p> <p>3. The exercise of jurisdiction by the juvenile judge in the matter of an accused minor under eighteen years of age is a pre-requisite to the vesting of jurisdiction over him by the common pleas court, and where such discretion has not been exercised, but the accused has been bound over to the common pleas court by a magistrate an indictment thereafter returned against him is void.</p>

<p>APPLICATION OF THE STATUTE OF FRAUDS TO A VERBAL CONTRACT WITH DIFFERENT PERIODS FOR PERFORMANCE.</p> <p>Yerbal Contract to Make Payments to Heirs — In Consideration of Their Forbearing Suit to Contest the Will — Does Not Fall Within, the Statute of Frauds — Where Both Parties Elected to Treat the Contract as Yalid and There Has Been Part Performance.</p> <p>1. F. X. B. died testate February 9, 1911, leaving eight children. F. A. B., one of the sons and executor and trustee under the will, was left by the will practically one-half of the -father’s estate. The other heirs threatened to institute proceedings to contest the will; thereupon F. A. B. entered into a verbal contract with the other heirs and legatees to pay his- ñve sisters one-eighth, from his share under the will, of certain claims for infringements of a patent issued to the testator in his lifetime, suits for which were then pending, provided the other heirs did not institute proceedings to contest the validity of the will. Negotiations for the settlement of these claims were also pending at the time of testator’s death. During the year 1911 about $30,000 of these claims were collected and distributed by F. A. B., the executor, according to the terms of the verbal contract. After the lapse of two years from date of probate of the will, the balance, of $141,000, of these claims was collected by the executor, which he refuses to distribute according to the terms of the verbal contract. C., one of the sisters and a party to the contract, commenced an action against F. A. B., the executor, to recover her share of the moneys so collected on account of these infringement claims; F. A. B., -defendant, thereupon invokes the statute of frauds, -claiming that at the time the verbal contract was made, the statutory period in which proceedings to contest the will could be commenced was two years after probate, and therefore -the plaintiff and the other heirs, parties to the contract, -could not, by the very -terms of the contract, -perform thereunder within one year.</p> <p>Held: That F. A. B., the defendant, having elected to treat the verbal contract as valid by the distribution of the $30,000 collected •during 1911, and the plaintiff and the other sisters also having elected to treat the contract as valid by accepting their share of the amount so distributed, and the plaintiff and the other heirs, parties to the contract, having in good faith fully performed under the contract by refraining from instituting proceedings to contest the will within the time in which such proceedings could be brought, and being now barred from bringing such proceedings, the defendant can not now invoke the statute to defeat the plaintiff’s claim 'below.</p> <p>2. A verbal contract which may be performed within one year from date thereof by one party but can not be performed by the other party thereto until after two years from date thereof, does not fall within the statute of frauds where the party who may perform within one year from its date elects to treat the contract as valid and receives large benefits by so doing, which he refuses to return and has, iby his conduct in relation to the contract, rendered it impossible for him to restore the parties- to their original condition or place them in statu quo.</p> <p>3. If an agreement not in writing can or may be performed and entirely executed on one side within a year, though it can not be performed on the other, it is not within the statute if the party who can or may perform- within a year elects to treat the contract as valid and partly performs under such election and can not thereafter restore the parties to their former situation.</p> <p>4. A verbal contract which could be fully performed on one side within one year and from which it appears that the intention of the parties, founded on reasonable expectation, was -that it should be fully performed by one side within a year from date, and such side or party elected to so perform, and in fact, partly so performed, the fact that the other side or party could not perform within two years from its date, by reason of circumstances they could not control, if such party fully performed when performance was possible, does not bring the contract within the inhibition of the statute after such full performance, if the parties can not be restored to their original situation, for the reason that the party who could perform within a year, having received all the benefits of the contract, and it being impossible to restore the status quo, the party receiving and accepting such benefits will not be permitted to invoke the statute to defeat the rights of the other party when such rights' are irrevocably lost.</p>

<p>INTEREST ACCRUING ON PROMISSORY NOTES AFTER MATURITY.</p> <p>Promissory Notes — Common Law Presumption as to Payment of Interest Not Applicable, When — Computation of Interest Accruing After Maturity With Annual Rests Not Authorized.</p> <p>1. Installments of interest which became due and payable on a promissory note more than twenty years ago are not barred by the common law presumption of payment, where the note itself is saved from the statute of limitations by an endorsement thereon within the statutory period.</p> <p>2. While it is common practice to compute with annual rests interest which has accrued on promissory notes after maturity, the Ohio law does not authorize that method of computation, and a court in giving judgment for interest accruing after maturity will direct that the interest be computed at the stipulated rate without annual rests.</p>

<p>LIABILITY FOR DAMAGE TO PROPERTY RESULTING FROM A DEEP EXCAVATION FOR A SEWER.</p> <p>Excavations — City Not Liadle Where Made in a Street to a Depth of More Than Nine Feet — Sewer Held to Have Been Built dy an Independent Gontraetor, ahd Not dy the City — And an Adutting Owner Suffering Damage Must Look to the Gontraetor.</p> <p>1. A municipal corporation does not possess such, ownership in the streets as to render it liable, under the provisions of Section 3782, for damage to “any wall, house or other building” from an excavation in a street to a greater depth than nine feet.</p> <p>2. The evidence in the case at bar leads to the conclusion that the sewer in question was built by an independent contractor, and in the absence of evidence of negligence on the part of the city no liability arises against the city on account of damage resulting to abutting property from excavating a trench to a depth of eighteen feet and carelessly refilling it after the sewer had been laid.</p>

Among the authorities referred to by counsel for the plaintiff in error in the following case, and not referred to by the court in his opinion, were— Collins v. Hatch, 18 Ohio, 523; Bauer v. Casey, 16 C. D., 598; State, ex rel, v. Lynch, 88 O. S., 71, syl. 2; Fitzgerald v. Cleveland, 88 O. S., 338, 348 bottom of page; McQuillian on Mun.

<p>RECEIPT OF INDUSTRIAL INSURANCE DOES NOT REDUCE AMOUNT RECOVERABLE FROM A TORT FEASOR..</p> <p>Evidence — As to Receipt of Compensation from the State Insurance Fund — Not Competent in Fixing Damages to be Awarded Against a Tort Feasor — Nature of Industrial Insurance.</p> <p>The compensation provided by the workmen’s compensation law of Ohio to injured employees or the representatives of those who are killed in the course of their employment is in the nature of occupational insurance, and like general insurance can not be deducted or treated as an offset to a claim for damages for wrongful injury or death; and it follows that it is not error to exclude from consideration by a jury, in an action for damages for injury or death against a tort feasor, the fact that compensation has been accepted from the state insurance fund.</p>

<p>COMPENSATION FOR SERVICES RENDERED BY AN ATTORNEY.</p> <p>Attorney and Client — Compensation for Services Rendered Under an Implied Contract.</p> <p>The rule that an attorney may recover for services rendered with the consent and upon request of the party although not under an express contract, does hot apply where the party has an attorney of her own with whom she was in communication regarding the matter in settlement, but who also received information as to .the status and progress of the settlement from the client of the attorneys now seeking to charge her for services rendered in that behalf.</p>

<p>SUFFICIENCY OF AN INDICTMENT COUCHED IN THE LANGUAGE OF THE STATUTE.</p> <p>Criminal Law — Indictment Charging Unlawful Operation of an Automobile — Language of the Statute Sufficiently Sets Forth the Nature of the Offense — Section 12603.</p> <p>1. An indictment charging an offense in the language of the statute is, in general, sufficient. But where the statute creating an offense fails to set out the facts constituting it sufficiently to apprise the accused of the precise nature of the charge against him, a more particular statement of the facts will be required in the indictment.</p> <p>2. The language of Section 12603 of the General Code, making it an offense to operate a motor vehicle on the public roads or highways at a speed greater than is reasonable or proper, or so as to endanger tbe property, life or limb of another, etc., sufficiently 'defines the wrongful acts constituting the offense the accused is required to meet, and may be charged in the language of the statute.</p>

<p>LIABILITY FOR COLLAPSE OF A BUILDING UPON WHICH FLOOD WATERS HAD ENCROACHED.</p> <p>Damages — Not Recoverable From a Property Owner — Whose Efforts to Save Sis Own Property — Required by Necessity During Flood Time —Resulted in Injury to the Property of a Neighbor.</p> <p>During an extraordinary flood, water entered the cellars of both plaintiff and defendant, situated on adjoining property. Defendant’s cellar was much the deepest and contained property of value, making it necessary to syphon and pump out the water as fast as it entered. This removed the hydrostatic pressure, and caused the adjoining wall of plaintiff’s building to collapse. Seld:</p> <p>1. That in seeking to protect itself from the common menace, the defendant was not bound to permit a large body of water to remain in his own cellar and suffer serious damage thereby, in order to counterbalance the hydrostatic pressure which was being exerted' on the subsoil' of a neighbor who had made no effort to prevent the water entering her premises, and said defendant was not liable for the damage which resulted to plaintiff’s property by reason of the water being pumped from its own cellar.</p> <p>2. That the provision of Section 3782, making a landowner,- who excavates upon his own property to a depth greater than nine feet below the curb of the street, liable for resulting damage to any building on an adjoining lot, is not applicable to a case of the character of the one at bar.</p>

<p>COMPETENCY OF TESTIMONY BY AN INSANE WITNESS.</p> <p>Evidence — Assault on Inmate of an Insane Asylum Witnessed by a Fellow Inmate — Competency of His Testimony a Question for the Court — Its Weight and Credibility a Matter for the Jury.</p> <p>In the prosecution of an attendant in an insane asylum for homicide in assault with a fatal result on one of the patients under his care, the testimony of a fellow inmate who witnessed the assault is competent, if the court, after examination of the said patient and other persons who are acquainted with his condition, is satisfied that he has sufficient understanding to apprehend the obligation of an oath and is capable of giving an intelligent and correct account of what took place; but the question of the credibility of such a witness and the weight to be given to his testimony is for the jury to determine.</p>

<p>NOTICE AS TO LOCATION OF LAND OFFERED AT JUDICIAL SALE.</p> <p>Judicial Sales — Sufficiency of Description in Advertisement of the Location of the Parcel Which is to he Offered.</p> <p>The /purpose of the requirement of Section 11678, with reference to the description of property which is to be offered at judicial sale, is accomplished in the case of a vacant lot where it is described as located on a named street 110 feet south of a named intersecting street.</p>

<p>CONTRACT AS TO RATES OF FARE RENDERED UNENFORCIBLE BY THE PUBLIC UTILITIES ACT.</p> <p>Interurban Railway Rates — Right-Of-Way Granted in Consideration of Special Rates — Different Schedule Subsequently Fixed by the Public Utilities Act — Agreement as to the Rates Originally Fixed no Longer Enfordble — Private Agreements Which May be Abrogated by Subsequent Legislation — Without , Violating Constitutional Guaranties — Courts of Appeals Dedsions Not Binding Outside of the District in Which Rendered.</p> <p>1. A decision by a court of appeals is not binding on common pleas judges in districts other than the one in which it was rendered.</p> <p>2. The act creating the Ohio public utilities commission is valid and en-forcible in so far as it vests in the commission control over railway rates.</p> <p>3. The power of the public utilities commission is not restricted by contracts affecting private interests, and an agreement whereby a right-of-way was granted by a corporation to an interurban railway company in consideration of the employees of the corporation being carried for certain fixed rates of fare is not enforcible against the railway or its receivers, notwithstanding the contract antedates the passage of the public utilities act.</p>

<p>RESTRICTIONS UPON THE USE OF LOTS INTENDED FOR A HIGH-CLASS RESIDENCE DISTRICT.</p> <p>Building Restrictions — Right of Lot Owners to Require Enforcement of — Not Lost by Foreclosure Proceedings-, Where All Were Made Parties and a Consent Decree Entered — Possible Future Necessity for Use of Property for Business Purposes.</p> <p>1. The foreclosure proceedings upon the land of-the allotment company, which had imposed restrictions as to the use to be made of the lots, the court holds in no way constituted an abandonment or waiver of the restrictions, but rather fixed the status of lot owners whose purchases were made either before the entering of the decree, and th.e restrictions so originally embodied by the allotment company are enforcible by lot owners.</p> <p>2. No ground for refusal to enforce such restrictions is found in the mere fact that, in the opinion of the judge who hears the case, the ground may be needed at some future time for business purposes.</p>

<p>USE OF MEMORIAL HALL FOR A PICTURE SHOW ON SUNDAY NIGHT FORBIDDEN.</p> <p>County Commissioners — Have Authority to Lease a Memorial Hall for Public Entertainments — But in so Doing They May Hot Provide for Violation of a Penal Statute.</p> <p>1. There is vested in county commissioners clear statutory power to permit the auditorium of a memorial building to be occupied for any private purpose which does not interfere with the public use of the building, and this power includes the right to 'lease such a hall to persons desiring to give entertainments therein.</p> <p>2. But the power so vested does not confer upon the commissioners the right to lease such a hall for a purpose forbidden by statute, or to persons who publicly announce their purpose to use it in violation of a penal statute, such as the giving therein of a moving picture show on Sunday • evening, and injunction lies against such use.</p>

<p>PROBATE OF WILL NOT DEPENDENT ON THE CHARACTER OF THE DEVISES MADE.</p> <p>Wills — Devise to Alien Enemy Not a Ground for Refusal to Probate— Admission of, or Refusal to Admit, a Will to Probate and Record Entirely Governed by Requirements of Section 10519, General Code —The "Validity of Any Devise Gan Not be Adjudicated by the Probate Court — Probate Prerequisite to Contest — Power of Contest and Construction Expressly Conferred Upon Court of Common Pleas.</p> <p>1. There is no inherent power in the probate court to refuse to admit to probate a will on the ground that it contains a devise which is contrary to public policy, illegal or immoral, or that it gives aid and comfort to enemies with which the United States are now at war.</p> <p>2. Probate courts have only such powers as are expressly given by statute.</p>

<p>VALIDITY OF A SIDEWALK ASSESSMENT.</p> <p>Sidewalk — Notice to Abutting Owner — Prerequisite to the Levying of a Valid Assessment — Sidewalk and Street Improvements Must be Made Under Separate Legislation.</p> <p>A. sidewalk improvement must be made under legislation distinct and separate from a street improvement, and notice to an abutting owner of intention to make a sidewalk improvement is prerequisite to tbe levying of a valid assessment upon bis property.</p>

<p>RIGHTS OF CHILDREN UNDER A WILL WHICH ENTAILED LAND BUT WAS SET ASIDE.</p> <p>Wills — Children of .One to Whom- Land is Entailed — Ar.e Necessary Parties to an Action to Set the Will Aside — Land so Entailed Afterward Sold Under Foreclosure Proceedings- — -Title Good in the Purchase and Interest of the Children is Transferred to the Fund.</p> <p>1. Where, by the terms of the will, lands are entailed to a son and the heirs of his body, and the son brings suit to contest such will, his children then in being are “interested persons” within the meaning of Section 12080 of the General Code; and such children as survive their father will not be bound by a judgment setting such will aside in a proceeding to which they were not parties.</p> <p>2. The fact that such children during the lifetime of their father, brought suit to vacate the judgment setting aside such will, and a demurrer to such petition was sustained and the petition dismissed by the court, will not bar such children from claiming under such will, after the death of their father. .</p> <p>3. A decree in foreclosure of a mortgage on such lands, given by the testator, and a sale thereunder, conveys title to the purchaser free of the claim of such children, and the rights of such children are transferred to the fund arising from such sale.</p> <p>4. A decree in foreclosure of a mortgage upon such lands, given by such son, upon a cross-petition to which these children were not parties, will not be binding upon such children.</p> <p>5. The rights of these children did not become vested until the death of their father in 1905, and therefore their claim to the land would not be barred by the statute of Limitations. Whether a claim to ■the funds arising from the sale of such lands would be barred, is not decided.</p>

<p>PROPERTY RIGHTS OF A DIVORCED COUPLE.</p> <p>Trust — Can Not be Grafted by a Divorced Husband — On Property Standing in His Wife’s Name — Questions of Title Gan Not be Litigated in a Subsequent Proceeding.</p> <p>It is the policy of the law in Ohio that, in actions for divorce and ali- . mony, all questions of property rights as between the husband and wife must be determined in the divorce and alimony proceeding; and a petition by a husband filed some years later, in which he seeks to engraft a trust upon property standing in his former wife’s name, alleging as a reason therefor that the said property was enhanced in value by reason of what he contributed thereto out of his earnings during the marital relation, is open to demurrer.</p>

<p>JURISDICTION OF JUSTICES OF THE PEACE IN CUYAHOGA AND FRANKLIN COUNTIES.</p> <p>Justice of the Peace — Jurisdiction of, Over Persons Resident in Other Townships of the Same County — Validity of the Exception as to Jurisdiction, Which is Made Applicable to Cuyahoga and Franklin Counties — Evident Purpose of the Legislature to Stop Oppression by Outside Magistrates Through the Issue of Writs of Attachment.</p> <p>1. The jurisdiction of a justice of the peace in an outlying township of Cuyahoga county is limited to the township in which he has been elected, and he is without authority to issue summons accompanied by a writ of attachment against a resident of the city of Cleveland, where neither the plaintiff nor the defendant are resident in the township for which the said justice was elected.</p> <p>2. Whether a justice of the peace has any jurisdiction other than that provided in the act of April 28, 1913, giving him jurisdiction coextensive with the county in certain criminal cases, and in civil cases as provided in the amendment to Section 10255 (107 O. L., 20), and whether it will be necessary for the Legislature to more definitely fix the duties, powers and jurisdiction of justices of the peace, Quaere.</p>

<p>PROOF REQUIRED TO ESTABLISH AN EXPRESS CONTRACT TO CARE FOR DECEDENT.</p> <p>Contracts — Brother-In-Law of Decedent Files a Claim, for Services— . Proof of Promise by Wife of Decedent that He Should be Paid for Said Services — Sufficient to Establish an Express Contract.</p> <p>The requirement that only upon a showing of an express contract in that behalf, supported by clear and convincing evidence, can the estate of a decedent be made liable for a claim for services rendered for him by a member of the family living in the common household, is met where the widow of the decedent testifies that she requested the claimant, her brother, to come and assist in caring for the decedent who was an imbecile, for which services he was given a promise by her that he should be paid out of the estate.</p>

<p>VERDICTS IN BASTARDY CASES.</p> <p>Bastardy — Not a Criminal But a Civil Proceeding — Verdict May Be Returned Upon Concurrence of Three-Fourths of the Jury.</p> <p>A proceeding in bastardy is not a criminal, but a civil proceeding, in wbicb. the rule of a three-fourths jury verdict obtains.</p>

<p>VERDICT AS TO TWO DEFENDANTS IN AN ACTION FOR INJURIES.</p> <p>Verdict — Not Responsive to the Issues — Jury Directed to Retire and Bring in a Proper Verdict — Motion for Judgment Against One of Two Joint Defendants, Notwithstanding Verdict, Does Not Lie, When — Notice to Parties or Counsel of Intention, After Verdict, to Further Instruct the Jury Does Not Lie, When.</p> <p>1. A verdict for plaintiff against joint defendants and apportioning the damages is not in proper form or responsive to the issues, and the action of the trial court in refusing to accept such a verdict and instructing the jury to return a verdict which, if for plaintiff, would be against both of the defendants or against one and in favor of the other, the second verdict returned by the jury in accordance therewith will not be set aside because of such instruction.</p> <p>2. Where in an action for negligence against two defendants the jury returns a verdict against one of the defendants and in favor of the other, a motion will not lie for judgment against said other defendant notwithstanding the verdict.</p> <p>3. In an action for negligence brought jointly against two defendants, where the jury has returned a verdict apportioning damages between the defendants, notice to the parties or counsel that the court refuses to receive the verdict and intends to instruct the jury to return a verdict in which the damages are not apportioned.</p>

<p>PROSECUTION FOR PERJURY IN VERIFYING A PETITION.</p> <p>Criminal Law — Verification of Pleading on Belief — Basis for a Prosecution for Perjury — Where the Facts Stated Are Known hy the Affiant to he False.</p> <p>In determining responsibility for making a false affidavit to a pleading, the fact that the form of the affidavit is on belief becomes immaterial, where it is apparent that the party charged must have known the truth or falsity of the facts stated.</p>

<p>CONSTRUCTION OF THE WORDS “HEIRS” AS USED IN A WILL.</p> <p>Wills — Flexible Meaning of the Word “Heirs” — Technical Meaning Will Not be Adhered to Where Manifestly Contrary to the Intention of the Testator — Resort Had to Whole Contents of the Will in Determining Intention — Property Held Not to Pass to Widow of Life Tenant, But to Revert to His Brothers and Sisters and Their Representatives.</p> <p>1. Where the word “heirs”' appears in a will, it is to be construed in its strict, technical sense, unless it clearly, manifestly and very certainly appears that the testator used it in a different sense.</p> <p>2. While the presumption is that the testator had knowledge of the meaning of the technical terms used, if from a consideration 'of the whole context of the will, it is ascertained that he did not, as a matter of fact, speak a technical language, but used the words in a different sense, the words must be given the meaning he intended.</p> <p>3. Where the testator used the following language, “I give and bequeath to my son John during his natural life and to his heirs,” certain, real estate, the entire will is to be considered to determine in what sense the word was used, and if it is manifest that he intended to use it not in its technical sense, but to designate “.children,” this use of the word will be applied to the item in question.</p> <p>4. In such a ease it will be held that the son .takes a life estate only, with the remainder to his children or issue, and not to his heirs generally; and he having died without issue, the devise in remainder failed, and the estate reverted to the heirs of the testator, and the widow of the son did not take the fee as his heir.</p> <p>5. The reversion in fee descended to and vested in the heirs of the .testator at his death, subject, however, to divest in the event that the devisee for life should die leaving children surviving.</p>

<p>EXECUTION AGAINST PARTNERSHIP ASSETS.</p> <p>Partnership — Agreement to Divide Assets Betioeen the Partners — No Provision Made for Payment of Partnership Debts — Assets Awarded to Insolvent Partner — Exempt from Execution in Lieu of Homestead.</p> <p>1. Where partnership assets are seized in execution by partnership ■ creditors the members of the firm are not entitled to statutory exemptions, in lieu of homestead claims.</p> <p>2. But where the members of a partnership acting in good faith dissolve the firm and by written contract distribute the assets between themselves, making no mention of firm debts, they are no longer partners and the assets become the separate estate of each former partner. Under such circumstances each former partner may be allowed his statutory exemptions out of said former firm assets even as against firm creditors. Mortley v. Flanagan, 38 O. S., 401, followed and approved; Gaylord Son & Co. v. Imhoff & Co., 26 O. S., 317, and Aultman, Miller & Co. et al v. Wilson, Assignee, 55 O. S., 138, distinguished.</p> <p>3. Where partners have by agreement dissolved their relations toward each other as such, and have divided the firm assets between themselves, equity will not intervene and order an accounting and appoint a receiver for said former firm assets at the request of one . former partner in a later action against another former partner, where none of the old firm creditors are parties, for the sole purpose of creating assets with which to pay firm claims and to meet the in solido liability of the partners individually.</p>

<p>INVALIDITY OF EXISTING INDEMNITY CONTRACTS AGAINST DAMAGES FOR INJURIES TO EMPLOYEES.</p> <p>Workmen’s Compensation — Amendment of 1917 Making Existing Indemnity Insurance Void — Not Retrospective With Reference to Existing Insurance — Such Legislation Valid, Because of a Character Which Might be Reasonably Anticipated by Those so Contracting.</p> <p>1. The amendment of 1917 of Section 1465-101, General Code (107 O. L., 7), of the Workmen’s Compensation law, rendering void all contracts which undertake to indemnify or insure an employer against loss for .the payment of compensation to workmen or their dependents, for death or injury occasioned in the course of their employment; and the amendment of said act of Section 1465-69 (107 O. L., 159), requiring as a condition to such employers of labor to qualify them to a certificate to elect to pay direct under said act, that they do not desire to insure or indemnify themselves against loss sustained by such direct payment, are provisions which are intended to and do affect and invalidate all such existing contracts of insurance made subsequent to the enactment of said original compensation law.</p> <p>2. Said acts do not fall within the objection of retrospective legislation. Such contracts are made within the reasonable contemplation of such legislation and subsequent amendments thereto, enacted to conform to conditions effecting the desired purposes, and must be changed or ended, when necessary, to enable a full and complete operation of the law.</p> <p>3. Said amendment of Section 1465-101, and of Section 1465-69 are not in contravention of the Constitution of the United States, .or the Constitution of the state of Ohio, but are enacted in the exercise of the police power, and are within the Constitution, and made to meet the needs of existing social conditions, and as necessary to the public welfare.</p>

<p>PROBABILITY AS TO THE CAUSE OF A FIRE.</p> <p>Probability — Not a Sufficient Basis for a Conclusion — Unless Founded Upon a Reasonable Inference — Insufficient Evidence that Fire Was Started by Sparks from a Locomotive.</p> <p>In an action against a railway company for damages sustained by fire wbicbi it is alleged was started by sparks from one of tbe defendant’s locomotives, a motion for a directed verdict for the defendant lies, when the circumstances shown to have existed at the time fail to afford a basis for a fair and reasonable inference as to the cause of the fire, but rests wholly on guess and conjecture.</p>

<p>MEMBERSHIP IN A BUSINESS EXCHANGE NOT TAXABLE.</p> <p>Taxation — Enjoyment of a Privilege Not Property — Membership in the New Stoclc Exchange Not Taxable in Ohio.</p> <p>Membership in the New York Stock Exchange does not constitute property within the meaning of the law of Ohio relating to taxation, but is a mere personal privilege, and is not taxable even though the owner of such a membership is a resident of Ohio.</p>

<p>OFFICER NOT PERSONALLY LIABLE UNDER A CONTRACT EXECUTED IN HIS OFFICIAL CAPACITY.</p> <p>Public Contracts — Officer Not Personally Liable Under a Contract Executed as Such. Officer — Unless Expressly Made so by Statute or Agreement — Board of Education Enters Into a Contract for Repair of School Building for Which no Appropriation Had Been Made — Action to Recover from Members of the Board Personally.</p> <p>1. In the absence of a statute to that effect, a public officer or agent, acting in good faith, is not personally liable on his contract entered into in that' relation with another, unless by express understanding to that effect.</p> <p>2. Members of a board of education are not officers or agents of the • “state, county, township or municipal corporation” within the contemplation of Section 17, General Code, and are not personally liable under the provisions thereof in the making of a contract without an appropriation having first been made therefor as required by Section 5660, General Code.</p>

<p>LEADING QUESTIONS ASKED BY THE TRIAL JUDGE.</p> <p>Trial — Sometimes the Duty of a Trial Judge to Interrogate Witnesses— May Ash Questions Not Proper for Counsel to Propound — Courts do Not Tahe Judicial Notice of Municipal Ordinances — Defendant Need Not Plead an Ordinance Upon Which He Relies to Defeat Plaintiff’s Claim.</p> <p>1. The universally accepted rule is that courts of general jurisdiction do not take judicial notice of municipal ordinances. The rule has always been that where a plaintiff relies upon such an ordinance as the gist of his cause of action the same must be specially pleaded as one of the facts upon which he relies. Where a defendant relies upon such ordinance to defeat a plaintiff, it need not be pleaded Meek v. Pennsylvania Co., 38 O. S., 632; Variety Iron Co. v. Poak, 89 O. S., 297; Schell v. DuBois, 94 O. S., 93, distinguished.</p> <p>2. A trial judge not only has the right to ask questions of witnesses, but it is his duty to do so whenever if is necessary to develop the truth. He may ask leading questions in cases where -it- may be improper for counsel to propound them.</p>

<p>VALIDITY OF A BEAL LAW ELECTION.</p> <p>Elections — Laws to be Construed Liberally in Preserving the Will of the People — Beal Law Election Not Rendered Invalid by Being Held on the Day of a General Election.</p> <p>A Beal law election is not rendered invalid by reason of being held on the day of the general election in November, where the electors were not deprived of an opportunity to express their will, and no irregularity occurred in the proceedings of council, and the electors had full notice of the time and purpose of such election.</p>

<p>RECOVERIES UNDER THE FEDERAL EMPLOYERS’ LIABILITY ACT.</p> <p>Railways — Recovery by Representative of Employee Injured in Interstate Traffic — Barred where Settlement Was Made with Such Employee in Bis Life Time.</p> <p>Satisfaction by settlement or otherwise of a pending action for personal injuries operates as a bar to an action by the personal representative under the federal employers’ liability act, brought after the death of such employee.</p>

<p>EXEMPTION LAWS NOT DEFEATED BY WAIVER OF THEIR PROVISIONS.</p> <p>Agreement Waiving Exemption Laws — Embodied in a Promissory Note —Judgment Tahen on the Note — But Homestead Exemption is Claimed by the Maher and Allowed.</p> <p>An agreement whereby a debtor waives “the benefit of all laws exempting real or personal property from levy or sale or of any law intended for advantage or protection,” is contrary to public policy and can not be made the basis for sustaining an execution against property of the debtor otherwise covered by the exemption laws.</p>

<p>APPLICATION OF THE RULE OF SPEED OF MOTOR VEHICLES.</p> <p>Determination as to the Character of the Locality in which a Motor Vehicle Was in Collision — Judicial Functions and Those Belonging to the Jury — Charge of Court with Reference to Application of the Speed Law.</p> <p>1. “The business and closely built up portions of a municipality,” within which it is forbidden by Section 12604, G. C., to operate a motor vehicle at a speed greater than eight miles an hour, are those portions of a city contiguous to a public highway which are closely built up with structures devoted to business.</p> <p>2. Where the evidence as to the nature and character of the part of a city, in which an automobile collided with another vehicle, makes it clear and beyond dispute that it is not a business and closely built up section, it is the duty of the trial judge in an action growing out of the accident to apply the law and instruct the jury that the case is governed by the provision of the statute which fixes the maximum speed of an automobile at fifteen miles an hour.</p>

<p>DETERMINATION AS TO WHETHER A LEASE WAS RENEWED.</p> <p>Landlord and Tenant — Relaxation of Ancient Rule — That Holdhng Over Implies a Renewal of the Lease — Intention Noto the Determining Factor — Liability for Injury of Premises in Removal of Goods by Transfer Company.</p> <p>1. Where it is understood between a landlord and bis tenant that the latter will vacate the premises at the expiration of his lease, and •he arranges so to do, but owing to an occurrence for which he was not responsible he was delayed in so doing for two days, one of which was Sunday, the law will not imply a renewal of the lease.</p> <p>2. A transfer company employed to remove household goods is the agent of the owner of the goods, and injury to the premises in removing such goods renders the owner thereof liable to the owner of the property for the damage thus sustained.</p>

<p>UNFAIR COMPETITION.</p> <p>Choice of Color and Form, of Design — May Identify a Business and Make it Known — Imitation Constitutes Unfair Competition in Trade.</p> <p>Where a company, operating taxi-cabs and wagons, paints its vehicles in accordance with a uniform design and with colors so conspicuous that the general public comes to recognize them as belonging to said company, an imitation of such colors and design by a competitor, offering other vehicles for hire, constitutes unfair competition in trade against which injunction lies.</p>

<p>DIVORCE PROCEEDINGS MUST BE IN LITERAL CONFORMITY WITH THE STATUTES.</p> <p>Jurisdiction — Not Acquired in Actions for Divorce — Except by Strict Conformity With the Statutes — Waiver Not Permissible.</p> <p>1. The provisions of the divorce statutes are mandatory and must be literally complied with before jurisdiction is' acquired to hear the case; from which it follows that summons and entry of appearance can not be waived, but service either personal or by publication must be shown.</p> <p>2. Entry of appearance with a request for restoration to maiden name constitutes prima facie evidence of consent by both parties to a divorce, which is on its face collusive and contrary to public policy.</p>

<p>CHILD THROWN FROM CAR AND INJURED.</p> <p>Negligence — Street Oar Conductor does Forward to Talk With Motorman — Child Carried ly His Destination Leaves His Seat and is Injured.</p> <p>Negligence toward a traction car passenger is not shown by the mere fact that the conductor went forward to talk with the motorman, but responsibility on the part of the company would be shown if it were made to appear that the conductor remained away from his post for three or four squares, and the passenger was a child four years of age, and in the meantime his destination was passed and no heed was paid to his signal to stop, and going to the rear of the car he was thrown off and injured.</p>