Volume 21 — Ohio Circuit Court Decisions

<p>HABEAS CORPUS — PRISONS AND WORKHOUSES — SENTENCE.</p> <p>1. Sentence must Direct Such Confinement to Commit Accused in Workhouse in Another County.</p> <p>A constable, in a county having no workhouse hut which has made terms, under Sec. 2107a (Lan. 3444; B. 1536-378) Rev. Stat., with a city or district of another county having within its limits a workhouse, cannot commit a prisoner found guilty of violating a state law, to such workhouse, unless the sentence so provides, although the writ issued to the constable directs such confinement.</p> <p>:2. Constable should Commit Accused to County Jail on Execution of Judgment fob Pine and Costs without Imprisonment on Default.</p> <p>It Is the duty of a constable holding a writ of execution for the collection of a judgment for a fine and the costs of prosecution, rendered by a magistrate for the violation of a state law, but which judgment makes no provision for imprisonment in case of default in the payment of said fine and costs, to take the body of the offender and commit him to the county jail, in case he fails to pay said fine and costs and there is no property out of which to satisfy said judgment.</p> <p>3. Habeas Corpus does not Lie until Constable has Reasonable Time to Convey Accused to County Jail.</p> <p>Where, under such circumstances, a constable has taken possession of the body of the defendant, habeas corpus will not lie against the constable for the release of the defendant, at least until the constable has had a reasonable time in which to convey him to the county jail.</p> <p>[Syllabus by the court.]</p>

<p>BILL OF DISCOVERY.</p> <p>Necessity of Pursuing of Statutory Procedure.</p> <p>When, under a given state of facts, Sec. 5293 Rev. Stat., together with Secs. 5289, 5290 and 5101, will afford the same relief as was formerly administered in chancery by a bill of discovery, under the same facts, the provisions of said sections must be pursued.</p> <p>[Syllabus by the court.]</p>

This case involves the validity of ordinance No. 1671 of Cincinnati, “to regulate and license chattel mortgage and salary loan brokers.” “Section 1.

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

<p>CONSTITUTIONAL LAW — INFANTS—WORK AND LABOR-</p> <p>Act Limiting Employment of Girls under Eighteen Years to Eight Houbs. per Day is Constitutional.</p> <p>Act 99 O. L. 30, fixing eight hours as the maximum hours in one day in which girls under eighteen years of age shall he permitted to work in. certain occupations and imposing a penalty for violation thereof, is constitutional.</p> <p>[Proof of this decision and syllabus was submitted to Judge Winch and corrected. — Ed.]</p>

<p>MANDAMUS — OFFICE AND OFFICERS.</p> <p>Mandamus Does not Lie to Remove Deputy Coboner.</p> <p>A deputy coroner, appointed pursuant to Sec. 1209a Rev. Stat., having power to do and perform all the duties imposed upon the coroner in his. absence but having no independent duties, is not an officer against whom quo warranto will lie to remove.</p> <p>[Proof of this decision and syllabus has been submitted to Judge Marvin, and corrected. — Ed.]</p>

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

<p>DIVORCE AND ALIMONY.</p> <p>Deceee foe Alimony Remaining Unimpeached Additional Alimony Cannot be Granted.</p> <p>Permanent alimony in gross having been allowed and paid, a suit for new and additional alimony cannot he maintained.</p> <p>[Proof of this decision and syllabus has been submitted to Judge Marvin, and corrected. — Ed.]</p>

A railroad engaged in interstate business, all of its business involving the use and operation of its railroad and equipment is subject to the exclusive power of the congress of the United States to regulate commerce among the several states; the power of the state of Ohio to regulate the railroad of the defendant or its equipment, is in contravention of the exclusive power of congress to regulate commerce among the several states and is unconstitutional and void.

<p>ERROR — EVIDENCE—NEW TRIAL.</p> <p>1. Excluding Petition Filed in Another Court Held not Erroneous.</p> <p>Excluding as evidence a petition filed in another court substantially the same as that upon which the case is tried, and containing no admissions not found in the latter is not erroneous.</p> <p>2. Subsequent Specifications in Charge Curing Prejudice in General Statement Imputing Responsibility for Accident.</p> <p>A charge that the defendant “did dig the trench and is responsible for whatever result naturally grew out of that” is not equivalent to saying " that defendant is an insurer against accident, nor prejudicial, especially if the trial court subsequently specified the particular results for which responsibility attached.</p> <p>3. Reading Pleadings and not Preventing Jury from Taking Them to Their Room not Prejudicial.</p> <p>Neither reading, pleadings, before explaining them to the. jury, nor permitting the jury to take the pleading's to their' room constitutes' prejudicial error.</p> <p>4. Preponderance and Weight of Evidence Wrongly Define».</p> <p>Defining the “preponderance of evidence” as “that you believe and that influences your minds in arriving at the conclusion you made” is erroneous; it is not a question of what may, but what amount of evidence must, influence the mind. So, defining the “weight of evidence” as to exclude documentary evidence is prejudicial error.</p> <p>5. Appeals to Corporation Prejudice and Discrediting Witnesses Because of Employment Held Abuse.</p> <p>Blame for improper argument provoked by opposite counsel will not be apportioned on review, but where exception is made to such argument, failure of the court to rule on the same affirmatively is erroneous. Hence, assailing the credibility and integrity of witnesses because of their employment hy a corporation :and appealing to existing prejudice against corporations constitute gross abuse of the privilege of counsel and tends to defeat the administration of justice,-'and/reiteration; thereof after withdrawal upon exception, is reversible error.</p> <p>6. Proof of Diligence in Ascertainment of Pacts Essential to Grant New Trial After Term upon Discovery Thereof.</p> <p>Overruling a motion for new trial filed after term, based on newly discovered evidence which could not with reasonable diligence have been discovered before is not erroneous, in the .absence of proof of due diligence in ascertaining such facts.</p> <p>[Syllabus approved by the court.]</p>

<p>DIVORCE AND ALIMONY.</p> <p>Division of Property not Predicated upon Decree on Petition for Alimony-Alone.</p> <p>A court will not upon petition, filed under Sec. 5702 Rev. Stat., for alimony alone, anticipate a decree for divorce and consequent division of property unless required by the facts, and the decree must expressly show that the allowance made comprehends such division. Hence, granting a wife alimony in monthly installments and reserving the right of' modification thereof, conclusively tend to show that the allowance is support and maintenance alone, which, upon her marriage to another man abundantly able to support his wife, may be terminated as of the-date of remarriage. The mere fact that the petition alleged, and the court considered her assistance in the accumulation of her former-husband’s property, is not sufficient to show that division was intended.</p>

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

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

<p>ERROR.</p> <p>Necessity oe Showing what it was Proposed to Prove by an Excluded Question.</p> <p>Where objection to a question propounded to a witness is sustained, but the record does not disclose what reply the witness would have made had he been permitted to answer, a reviewing court will not presume that the answer would have been material, or favorable to the plaintiff in error, or that the sustaining of the objection to the question was prejudicial, or that the rejection of the answer by the trial court was improper.</p>

<p>ADVERSE POSSESSION — QUIET TITLE.</p> <p>1. Known Heirs oe Owner oe Lands Presumed to be Dead not Barred by Proceedings to Quiet Title against “Unknown Heirs.”</p> <p>A proceeding to quiet title to land against the “unknown heirs” of a former owner who is presumed from long absence to be dead and against him if living, in which service is had by publication and decree rendered quieting the title of plaintiffs against such' defendants, does not affect the title of heirs whose names and places of residence in Ohio, though known' to plaintiff, are not named as parties nor served with summons therein, and who have no actual notice thereof; hence, such known heirs are not barred thereby from asserting their interest in such land.</p> <p>2. Suit to Quiet Title against Cotenants Having no Notice of Such Adverse Claim does not Start Statute of Limitations Running.</p> <p>The statute of limitations does not run between cotenants until the performance of some overt act of unequivocal character which clearly indicates an assertion of ownership to the exclusion of the right of a cotenant. Hence, a suit to quiet title against infant cotenants of which they had no actual notice does not charge them with any such adverse claim as will start the statute running against their interests in the land.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR — TRUSTS AND TRUSTEES.</p> <p>Ereob Proceedings to Confirmation of Reference foe an Accounting of a Trust, do not Permit Review of Prior Decree Declaring Trust.</p> <p>The final decree, in a suit to (1) declare a trust in lands and (2) for an accounting of rents and profits, to which error may be prosecuted to review the question as to whether the land was held in trust or in fee is that in which the controversy as to title was determined; hence, such question cannot be reviewed on error to a subsequent decree confirming.-the report of the referee fixing .the amount of rents and profits</p> <p>[Syllabus approved by the court.]</p>

<p>CORPORATIONS — MORTGAGES.</p> <p>Mortgage Executed by Corporation not Invalid fob Want of Record in Minutes of Certificate of Authority.</p> <p>The certificate of authority for the signing of a mortgage b'y officers of a corporation will not be held insufficient because the certificate does, not appear to have been recorded in the minutes of the company, where-there is evidence that a certificate was authorized by the board of directors and both parties to the mortgage relied on its correctness. Boesch. v. Display Horse Oo. 7 Circ. Dec. 374 (14 R. 289), followed.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Money Garnished in a Void Proceeding Returned to Garnishee.</p> <p>Where it has been adjudged on review of a suit in attachment that the. justice of the peace was without jurisdiction, any order which the justice may have made as to payment of the money is void and it becomes his duty to return it to the garnishee, notwithstanding the dismissal of the petition by the reviewing court may have been, erroneous.</p>

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

<p>STREET RAILWAYS.</p> <p>Operation of Street Railway under Permit to Maintain Loop on Private Land.</p> <p>An agreement for the maintenance of a street railway loop on private property for a period not exceeding twenty-five years, for a consideration of one dollar per year while so maintained, and upon the cessation of the use thereof it shall be removed upon demand of the owner of the land at the expense of the street railway company, is a mere permit or license for a period not exceeding that named and the owner of the land cannot insist on the operation of cars over the loop in the face of an ordinance providing for a different route.</p>

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

<p>INTOXICATING LIQUORS.</p> <p>1. Jones Law Petition not Pbima Facie Evidence of Sufficiency.</p> <p>A petition under the Jones local option law (98 O. L. 68) cannot be taken as prima facie evidence of the facts necessary to decide upon its sufficiency, except in the absence of a request upon the part of any .elector to be heard.</p> <p>2. Burden of Proof.</p> <p>The burden of proving the facts alleged in the petition rests upon the petitioners; and the burden of proving that a signature was procured through fraud or misrepresentation rests upon the party who alleges that he was misled and is asking for the withdrawal of his name from the petition.</p> <p>3. Number of Signatures Essential.</p> <p>The number of signatures to the petition must equal a majority of the votes cast at the last regular municipal election.</p> <p>4. Judicial Knowledge of Politics of Newspapers.</p> <p>The court may take judicial knowledge of politics of newspapers in its jurisdiction in which notice of hearing on Jones law petition is published.</p>

<p>TAXATION.</p> <p>1. Essential that Complaint be Made by One Interested in New Equalization.</p> <p>A hoard of review, sitting as an annual board of equalization obtains jurisdiction only by a complaint of an owner of real estate interested in a new equalization.</p> <p>2. Equalization Exercised over all Real Estate in Municipality.</p> <p>Equalization, while ordinarily confined to lots or lands in the immediate vicinity of the lots complained of, may be exercised over real estate within municipal limits though not in the same locality or district; but it cannot be exercised to effect a general revaluation.</p>

<p>BRIDGES — EASEMENTS—MUNICIPAL CORPORATIONS.</p> <p>3. Authority to Suspend Private Bridge Across Street.</p> <p>An ordinance granting a packing company the right to maintain a bridge across, twenty feet above, and no part of it placed upon the surface of, a street, does not contravene Sec. 28 of the Munic. Code of 1902 (Lan. Rev. Stat. 3923; B. 1536-131), providing that streets shall be kept open, in repair and free from nuisance.</p> <p>2. No Prescriptive Rights of- Light, Ant and View in Street Exist against Private Owners.</p> <p>Injunction does not lie against maintaining a private bridge across a street as impairing the easement of light, air and view of a private abutting owner.</p> <p>3. Injunction Does not Lie against Connecting Bridge Over Street not Impairing Ingress and Egress.</p> <p>Injunction will not lie at the suit of a property owner against the connecting of buildings on opposite sides of the street by a bridge twenty feet above the pavement, where. the ingress and egress of the plaintiff is in nowise impaired, and the injury which he will sustain, if any, is not different in kind from-that suffered by the public at large.</p>

<p>CONSTITUTIONAL LAW — LEGISLATURE.</p> <p>1. Cincinnati Probe Commission Unconstitutional as Conferring Judicial Power.</p> <p>The joint resolution passed by the general assembly at its recent session, February 14, 1908 (99 O. I». 621), providing for the appointment of a comm if'ee to investigate charges of corruption in the government of the city of Cincinnati and county of Hamilton, is an exercise of judicial power not expressly conferred by the constitution, and a gross violation of Art. 2, Sec. 32 thereof, unless it can be justified on the ground. of seeking information in aid of intended legislation.</p> <p>2. Intemperate Language, etc., Indicates Other than Additional Legislative Purpose to Remedy Defects in Law.</p> <p>But the intemperate language used in the resolution and the liéense and the revolutionary procedure proposed, together with the declaration that all laws are being violated by an organized band which no one dares to oppose, make it clear that hope is not based on additional legislation which obviously could not be rendered effective under such circumstances, and cause it to be evident that the resolution was not adopted in good faith for the purpose of providing remedial laws, and places it. beyond the pale of the constitution.</p> <p>3. Adjournment Sine Die of Legislature Renders Remedial Legislation Impossible.</p> <p>And were this not true, the fact that the general assembly has adjourned sine die renders it impossible that information which might be obtained by such an investigation shall be used by the body seeking it for the purpose proposed, or that it will be so used by a body over which the recent general assembly will have any control, and therefore deprives, the investigation of the purpose announced, and. leaves the matter in the same situation as though no purpose had been declared by the. resolution.</p>

Where the hnsband receives, directly or indirectly, from the wife, money, notes or other property belonging to her, the presumption is, that he receives the same as a loan or trust, or in the capacity of agent, and that it was intended that he should account therefor to her. If he claims to have received the property as a gift, the burden is upon him to establish that fact.

Mandamus. Prior to November, 1908, the police force of the city of Portsmouth consisted of a chief and twenty patrolmen,-including a turnkey. At that time the city council, by an ordinance repealing a former ordinance, reduced the force of patrolmen from twenty to eleven.

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

<p>DIVORCE AND ALIMONY — ERROR.</p> <p>1. Setting Aside Rules Observed for Many Years that Impede Justice.</p> <p>Courts inherently have the right to protect themselves and the publie from fraud and perjury; hence, neither question of public policy nor rule, of court which protects and encourages perjury and fraud can be permitted' perpetually to impede justice, notwithstanding such rule has been observed for more than a half century and that courts reluctantly upset well-established rules.</p> <p>2. Divorce Decree Set Aside after Term for Fraud and Perjury.</p> <p>A decree of divorce obtained by fraud and perjury, on the facts being shown, may be set aside after the term at which the divorce was granted, and notwithstanding remarriage of the guilty party.</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>EXTRADITION — HABEAS CORPUS.</p> <p>Pbesumption as to Regularity op Extradition Proceedings.</p> <p>Regularity of proceedings for extradition will be presumed and that the prisoner is held by virtue of a warrant of extradition, where i't appears in a bill of exceptions on error to a refusal of a writ of habeas corpus, that a crime was committed in the state demanding extradition, that theaecused has fled to the state upon which requisition is made, that the demand was properly made under the federal laws and that the governor was authorized to grant the warrant, although the record fails to disclose what action was taken by the governor.</p> <p>[Syllabus approved by the court.]</p>

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

<p>PLEADING.</p> <p>Filing Several Petitions against Several Defendants on Separate Causes of Action.</p> <p>A liberal construction of the civil code in furtherance of justice is required. Hence, where separate causes of action against several defendants are improperly joined, the proper procedure is to permit the plaintiff to file severál petitions against each defendant as provided by Sec. 5064 Rev. Stat.</p>

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

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

<p>Quo Warranto.</p> <p>Appointment of railroad commissioner by retiring governor, invalid. State v. McGollister, 11 Ohio 46; State v. Choate, 11 Ohio 511; State v. Thompson, 6 Circ. Dec. 106 (9 R. 161) ; State v. Ermston, 8 Circ. Dec. 83 (14 R. 614), affirmed, Ermston v. State, 57 Ohio St. 665; 23 Am. & Eng. Ene. Law (2 ed.) 347; Mechem, Pub. Off. & Off. Sec. 133; Throop, Pub. Off. Sec. 92; People v. Ward, 107 Cal. 236 [40 Pac. Rep. 538]; Ivy v. Lusk, 11 La. Ann. 486; State v. Meehan, 45 N. J. L. 189; State v. O’Leary, 64 Minn. 207 [66 N. W. Rep. 264]; State v. Van Buskirk, 40 N. J. L. 463; State v. Gatlin, 84 Tex. 48 [19 S. W. Rep. 302] ; Columbus v. Board of Elections, 13 Dec. 452; Allen v. Parish, 3 Ohio 187.</p> <p>The appointment of the relator was not invalid because made on the first day of February. People v. Murray, 15 Cal. 221; Saunders V. Grand Rapids, 46 Mich. 467 [9 N. W. Rep. 495]; People v. Allen, 8 Wend. (N. Y.) 486; Census Superintendent, In re, 15 R. I. 614 [15 Atl. Rep. 205],</p> <p>The senate had adjourned. 5 Hinds, Precedents of House Representatives See. 851, 852, 6607; Corwin v. Comptroller-General, 6 Rich. (S. C.)- 390; State v. Smith, 44 Ohio St. 348 [7 N. E. Rep. 447]. ■</p>

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

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

Decision by Judge Dillon of the common pleas, rendered Monday, March 1, 1909. The question presented in this case is whether or not the act of May 9,1908 (99 O. L. 538), providing for the registration, identification, regulation and licensing of motor vehicles, inhibits the councils of municipalities from passing ordinances requiring regulation and license of the same vehicles or from enforcing such ordinances already in force at the time of the passage of such act.

An old cemetery containing about thirty-nine hundredths of an acre lies near the center of the town of Miamisburg. The title to the land is in the German Reformed and Lutheran churches. Prior to about 1860 it was used as a public burying ground, although the church controlled it, and might charge a fee for burying unless they saw fit to remit such charge. There have been practically no burials in it for possibly forty years.

<p>DIVORCE AND ALIMONY.</p> <p>1. Expectancy of Inheritance not an Element of Present Value to Measure Alimony Allowance.</p> <p>“Expectancy” as applied to property which may be considered in deter- . mining a husband’s ability to pay alimony does not include the mere possibility of accession by inheritance from his living parents.</p> <p>[Syllabus approved by the court.]</p>

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

Journal entries and findings of fact and law by Judge Hunt of tbe common pleas: This cause came on to be heard upon the petition of the plaintiff [Barron-Boyle Company], the answer and amended answer of the defendant [Cleveland, C. C. & St. L. Ky.] and the reply of the plaintiff, the depositions of the defendant, on file herein, and upon an agreed statement of facts entered into between the parties, plaintiff and defendant, on file herein, there being no other testimony…

<p>FRAUDULENT CONVEYANCES.</p> <p>Restoking Money to Insolvent after Assignment, Illegal.</p> <p>One with knowledge of the insolvency of another and his contemplated general assignment for creditors, receiving from him a large sum of money, giving his due hills in return therefor, holds the money in trust for the creditors and cannot absolve himself from liability therefor to the creditors by returning such money to the insolvent personally, after the assignment is made, and, especially, since he made no disclosure to. the assignee of such restoration.</p> <p>[Syllabus approved by the court.]</p>

<p>Appeal from Knox common pleas court.</p> <p>Rule of construction. Kendriclc v. Farquhar, 8 Ohio 189; Cincinnati College v. State, 19 Ohio 110; Lee v. Sturges, 46 Ohio St. 153 [19 N. E. Rep. 560; 2 L. R. A. 556]; Gerke v. Purcell, 25 Ohio St. 229; Watterson v. Ealliday, 77 Ohio St. 150 [82 N. E. Rep. 962]; Meyers v. Akins, 4 Cire. Dec. 425 (8 R. 228) ; Cleveland Library Assn. v. Pelton, 36 Ohio St. 253; Little v. Seminary, 72 Ohio St. 417 [74 N- E. Rep. 193]; Portland Hibernian Ben. Soc. v. Kelly, 28 Ore. 173 [42 Pac. Rep. 3; 30 L. R. A. 167; 52 Am. St. Rep. 769].</p> <p>Property used as residences. Kendrick v. Farquhar, 8 Ohio 189; ~W after son v.-Holliday, 77 Ohio St. 150 [82 N. E. Rep. 962]; Cincinnati College v. State, 19 Ohio 110; Gerke v. Purcell, 25 Ohio St. 229; Bamsey Co. v. College, 51 Minn. 437 [53 N. W. Rep. 704; 18 L. R. A. 278],</p>

<p>ERROR.</p> <p>Attorney for Executor Cannot Waive Service in Error against Deceased. Waiver of service of summons in a proceeding in error against a deceased person by an attorney of deceased’s executor, gives the circuit court no jurisdiction; neither can the plaintiff in error cure the defect by adding or substituting the name of the executor.</p> <p>[Syllabus approved by the court.] "</p>

<p>BANKS — EMBEZZLEMENT—HABEAS CORPUS.</p> <p>1. Habeas Corpus Lies to . Determine Jurisdiction of Committing Court.</p> <p>A writ of habeas corpus lies to determine the jurisdiction of a court unlawfully restraining petitioner of his liberty,' but errors of the trial court cannot be reviewed in such proceedings.</p> <p>z. Act 76 O. L. 74 Held Constitutional.</p> <p>Act 76 O. L. 74, amending and supplementing acts 49 O. L. 41 (Lan. Rev. Stat. 6199; B. 3821-85), the free banking act, comprises only banks created under this act, and is not unconstitutional as being a law of general nature without uniform operation. But even if such amendatory act were unconstitutional, the corresponding section of the original act would not be repealed thereby and would remain a valid and constitutional act under the provisions of which one offending may be prosecuted.</p> <p>[Syllabus approved by the court.]</p>

<p>NEGLIGENCE — STREET RAILWAYS.</p> <p>Negligent Speed of Electric Car.</p> <p>Where an electric railway company operates its road on the public highway, and runs its cars in the nighttime upon a straight level track, although in the open country, at such a rate of speed that a cow cannot be discovered standing upon the track by the light of the headlight in time to stop the car, and a passenger is injured by reason of the car striking the animal, such facts will justify a jury in rendering a verdict in favor of the passenger for the injuries sustained.</p> <p>[Syllabus approved by the court.]</p>

<p>BILLS OF EXCEPTIONS — EVIDENCE—WRONGFUL DEATH.</p> <p>1. Failure to Attach Letters op Administration to Bill op Exceptions not Fatal.</p> <p>Failure to attach letters of administration to a hill of exceptions does not render the bill incomplete, where the administrator testified as to his appointment and to his acting as administrator, and no objection was taken thereto.</p> <p>2. Improper Manner of Introducing Evidence.</p> <p>Statements by counsel without objection, as to facts contained in a pamphlet not offered in evidence, is not the proper way to introduce evidence, but in this case was not prejudicial.</p> <p>3. Judgment of $2,000 Reasonable Compensation for Death op Market Woman.</p> <p>For the wrongful death of a widow fifty-seven years of age, engaged in market gardening, whose income with the aid of two sons and one daughter amounted to only $500 a year, is liberal compensation to the children for their loss.</p>

<p>Error to Franklin common pleas court.</p> <p>Several years ago Samuel Huston owned a business building at No. 80 N. High street, Columbus, Ohio. He rented certain front rooms, on the second floor of said building, to E. C. Orebaugh for the purpose •of a real estate office, reserving no control over these rooms. Orebaugh sublet desk room in his office to one, D. B. Hills, an insurance agent, who had a sign erected on the front part of his office under the window, and on the sign was printed the word, “Insurance.” This sign board was several feet long and twelve or fifteen inches wide. On January 11, 1903, Samuel Huston sold this building to James T. Miller. The-sign was on the building at that time and was fastened to the wall. Mr. Orebaugh continued as a tenant of said rooms under an annual lease..</p> <p>On or about December 25, 1904, during a heavy wind storm, this sign belonging to Hills, was torn lose from its fastening and fell to the-street. In falling it struck Owen Smith.</p> <p>Afterwards, on March 15, 1905, Smith brought an action against Henry Miller to recover $10,000 damage for injuries reviewed from the-falling of the sign. On March 13, 1907, he filed an amended petition and brought into the case James T. Miller.</p> <p>On October 18, 1907, the case came on for trial, and at the close-of the plaintiff’s testimony the court, on motion, directed the jury to-bring in a verdict for defendants, dismissed plaintiff’s petition at his-costs, and the cause is here on petition in error, to reverse that judgment.</p> <p>Cited and commented upon the following authorities: Dillon, Mun. Corp. Sec. 1032; First Nat. Bank v. Gillen, 17 Circ. Dee. 609’ (7 N. S. 33) ; affirmed, no report, First Nat. Bank v. Gillen, 73 Ohio St. 394; Gray v. Gas-Light Co. 114 Mass. 149 [19 Am. Rep. 324]; Salisbury v. Tlerchenroder, 106 Mass. 458 [8 Am. Rep. 354]; Wharton, Negligence 633, Sec. 817.</p> <p>Cited and commented upon the following authorities: Shindelbeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584]; Edwards v. B/issler, 16 Circ. Dec. 428 (5 N. S. 44) ; Burdick v. Cheadle, 26 Ohio St. 393-[20 Am. Rep. 767] ; Bailey v. Gas Co. 2 Circ. Dec. 656 (4 R. 471) Schwalbach v. Shinkle, 42 Bull. 170; Percell v. English, 10 Bull. 143; 18 Am. & Eng. Enc. Law 240; Thomas, Negligence 710.</p>

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

<p>EVIDENCE — MONOPOLIES—QUO WARRANTO —RAILROADS.</p> <p>1. Railway Company Unlawfully Owns Controlling Interest in Coal Minin#, Company;</p> <p>A railway company, incorporated under the laws of Ohio has no authority to acquire and hold shares of the capital stock of a company incorporated to mine and deal in coal, and especially is this so when the shares of stock so held constitute a majority or controlling interest in such coal mining company.</p> <p>2. Railroad Company Controlling Coal Mining Company Held Monopolistic.</p> <p>The control and management of a coal mining company hy a railway company, upon whose road the coal company is a shipper, through stock ownership tends to monopoly and restriction of trade and competition and is therefore unwarranted and illegal.</p> <p>3. Coal Mine Outlet Railroad'not Suci-i a Company as Another Railroad-Company may Hold Stock.</p> <p>An incidental purpose in the charter -of a coal mining company to construct a railway from its mines to a railway or other outlet does not, constitute such coal mining company a railway or kindred company so as to make applicable Sec. 3300 or 3256 Rev. Stat., authorizing a, railway company to subscribe for and hold stock in another railway or kindred company.</p> <p>4. Endorsement of Mining Company Bonds by Naturally Competing Railroads Ultra Vires.</p> <p>The endorsement and guarantee of the bonds of a coal mining company hy a railway company is ultra vires, and so also is an agreement between railroad companies operating parallel and naturally competing railroads to endorse and guarantee the bonds of a coal mining company in consideration of an equal division between the railway companies of all freight to and from the mines of the coal company.</p> <p>5. One Railway Owning Majority of Stock in Naturally Competing Line: Invalid.</p> <p>The ownership of a majority or controlling stock by one railway company of another railway company owning and operating a line of railway, a substantial part of which is in its general nature parallel to and naturally and actually forming a part of a parallel and competing system to that of the stockholding company, is illegal and unwarranted.</p> <p>G Unity of Stock Interests ,'nd Unity of Management Circumstances to Show Control.</p> <p>The control and management by one railway company of another operating-parallel and competing lines or systems of railways through combination may he shown by the circumstances, and a unity of stockholding interests, together with unity of management, pursuant to an established plan to that effect, is sufficient proof.</p> <p>7. Ouster Appropriate Remedy where Illegal Acts are Persistent, Defiant and Flagrant.</p> <p>In cases where the right is doubtful and has not been adjudicated or finally settled and the illegal acts have not been persistent, defiant and, flagrant, the appropriate relief to be afforded in an action of quo warranto against an offending corporation assuming to exercise unauthorized powers is to stop the abuse by ousting the corporation from the right to do the illegal acts or continue the unauthorized business.</p> <p>[Syllabus by the court.]</p>

<p>Error to Licking common pleas.</p> <p>Cited and commented upon the following authorities: Stratton v. Kennard, 74 Ind. 302; Stewart v. Rankin, 39 Ind. 161; Cluck v. State, 40 Ind. 263; 3 Enc. PI. & Pr. 410. 411; Coil v. Willis, 18 Ohio 28; Hollister v. Reznor, 9 Ohio St. 1; Scovern v. State, 6 Ohio St. 288; King v. Kenny, 4 Ohio 79; McDougal v. Fleming, 4 Ohio 388; Armstrong v. Clark, 17 Ohio 495;. Hanna v. Maas, 122 U. S. 24 [7 Eup. Ct. Rep. 1055; 31 L. Ed. 1117]; Dunn v.-State, 23 Ohio St. 167;. Hallam v. Jacks, 11 Ohio St. 692; Olney v. Watts, 43 Ohio St. 499 [3 N. E. Rep. 354]; Pettett v. Van Fleet, 31 Ohio St. 536; 2 Rockel, Prob. Prae. Sec. 1222, 1224, 1226; Page, Wills Sec. 719; Parker v. Seeley, 56 N. J. Eq. 110 [38 Atl. Rep. 280]; Spruance v. Darlington, 7 Del. Ch. Ill [30 Atl. Rep. 663]; Hawkins v. Barrows, 8 Circ. Dee. 251 (15 R. 141); Thompson v. Hoop, 6 Ohio St. 481; Baxter v. Bowyer, 19 Ohio St. 490; Stockton v. Wooley, 20 Ohio St. 184; Nimmons v. Westfall, 33 Ohio St. 213; Niles v. Gray, 12 Ohio St. 320; Jones v. Lloyd, 33 Ohio St. 572; Weston v. Weston, 38 Ohio St. 473; Jarman, Wills 445; Page, Wills Sec. 723; Smith, Estate of, 108 Cal. 115 [40 Pac. Rep. 1037] ; Bennett v. Packer, 70 Conn. 357 [39 Atl. Rep. 739; 66 Am. St. Rep. 112]; Fry v. Morrison, 159 111. 244 [42 N. E. Rep. 774]; Wilson v. Wilson, 145 Ind. 659 [44 N. E. Rep. 665]; Honey v. Honey, 61 N. II. 599; Gannon v. Apperson, 14 Lea. (82 Tenn.) 553; Drake v. Wild, 70 Yt. 52 [39 Atl. Rep. 248]; Franke v. Wiegand, 97 Iowa 704 [66 -N. W. Rep. 918]; Posegate v. South, 46 Ohio St. 391 [21 N. E. Rep. 641]; Mellen v. Mellen, 139 N. Y. 210 [34 N. E. Rep. 925]; Hutchings v. Danis, 68 Ohio St. 160 [67 N. E. Rep. 251]; 2 Rockel, Wills Secs. 1224, 1226; Millikin v. Welliner, 37 Ohio St. 460; Spreen v. Sandman, 1 Circ. Dee. 577 (2 R. 441); Way v. Langley, 15 Ohio St. 392.</p>

<p>NEGLIGENCE — PLEADING.</p> <p>1. Pleading General Denial and Contributory Negligence not Inconsistent.</p> <p>Section 5067 Rev. Stat., requiring defendant to plead his several defenses so as to be “consistent with each other,” has reference to the facts, constituting the different defenses, such as may be sworn to without falsehood and in good faith, and not to such as may be implied by law or supposed by the pleader. Hence, a defense of contributory negligence, if well pleaded, in a personal injury case is not inconsistent with a general denial, notwithstanding an admission of negligence, if such admission is pleaded as conditional only to setting up the additional defense.</p> <p>2. Special Instructions Properly Refused Imposing Burden on Defendant of Proving Absence of Negligence.</p> <p>Special instructions in a personal injury case, excluding the fact that the negligence complained of must have been the direct cause of the injury and imposing upon defendant the burden of proving that it was prudent and cautious are properly refused.</p>

<p>APPEAL — EXECUTORS AND ADMINISTRATORS.</p> <p>Written Notice of Intention to Appeal by Executor Filed within Thirty* Days of Judgment.</p> <p>Where an appeal from a decision or order of the common pleas to the-circuit court is desired to be taken by an executor, etc., in the interest, of the trust in pursuance of the provisions of Sec. 5228 Rev. Stat. a written notice of an intention to appeal must be filed with the clerk of the common pleas within thirty days after the entering of the judgment appealed from as provided by Sec. 6408 Rev. Stat.</p> <p>[Syllabus approved by the court.]</p>

<p>GAMING AND GAMBLING — LIMITATION OF ACTIONS.</p> <p>1. Suit for Recovery of Money Lost Gaming against Assignee of Defendant-Barred if, not Brought within Six 'Months’ of Loss.</p> <p>Section 4270 Rev. Stat. providing that a loser may, within six months thereof, sue for and recover money lost at gaming, is a statute of limitations; hence, having allowed more than six months to elapse before bringing suit for money so lost, plaintiff is barred from prosecuting suit therefor, notwithstanding defendant had made an assignment for creditors and presentation of the claim is made to the assignee within six months of such loss.</p> <p>2. Pkesentation of Claims to Assignee does not Abkest Running of Statute of Limitations.</p> <p>Mere presentation of a claim to an assignee for allowance under Sec. 6352 Rev. Stat. does not prevent a statute of limitations from running.</p>

<p>CONSTITUTIONAL LAW — OFFICERS—SCHOOLS.</p> <p>1. Cincinnati School Board Law Unconstitutional.</p> <p>Section 3897 Rev. Stat., as amended by act 99 O. L. 585, purporting to change the membership of boards of education in cities of over fifty thousand persons, but in effect applicable only to one of the class, is unconstitutional and void, as being general in character and not of uniform operation.</p> <p>2. President of Board of Education Holds Over Until Successor Qualifies.</p> <p>A president of a board of education, performing duties under Secs. 3974, 3980, 3982, 3983, 3984 Rev. Stat., other than presiding at meetings of the board, is an officer within the meaning.of Sec. 8 Rev.- Stat., and holds over until his successor is regularly chosen and qualifies.</p> <p>3. Officer Entitled to Hold Over. Until Successor is Legally Selected and Qualified not Estopped to Deny Right of Another Elected and Qualified Under an Unconstitutional Law.</p> <p>One regularly chosen and qualified as president of a board of education under a constitutional law is not estopped to assert his right to hold over until his successor is regularly chosen and qualified; the fact that another is elected and qualified under an unconstitutional law and has entered upon its duties, Tinder a belief of its validity by both claimants, indicates no intention on the part of the former to abandon his right to hold- over or acquiesce in the claim of the other.</p> <p>[Syllabus approved by the court.]</p>

<p>SCHOOLS AND SCHOOLHOUSES.</p> <p>Parent not Complying with Board of Education’s Order to Vaccinate Child* not Amenable to Compulsory Education Act.</p> <p>A parent who sends his child to a public school and is willing to continue to do so, but the child is excluded for failure to comply with a rule of the hoard of education requiring vaccination, is not liable to conviction. under the compulsory education act (Sec. 4022-1 Rev. Stat.).</p> <p>[Syllabus by the court.]</p>

<p>CONSTITUTIONAL LAW — AGRICULTURAL SOCIETIES.</p> <p>1. Statute Prohibiting Maintenance of Temporary Business within One-fourth Mile of Fair Unconstitutional.</p> <p>Section 7006 Ohio Rev. Stat. which provides that, “whoever establishes a temporary place of business for the sale of any article whatsoever, or offers for sale any such article * * * within one-fourth of a mile of the fair ground of any agricultural society, while the fair of such society is being held therein, unless he has obtained the written permission of the board of such society” and imposing a penalty for the violation thereof, is an unconstitutional exercise of power by the ■ legislature.</p> <p>2. Violates Federal Constitution.</p> <p>Such, provision violates Art. 14, Sec. 1, of the federal constitution, because it abridges the privileges and immunities of citizens, deprives them of their property without due process of law, and denies to each the equal protection of the law.</p> <p>3. Delegation of Power to Fair Board Unlawfully Restricts Business.</p> <p>The delegation of power to the board of such fair, to determine who shall do the forbidden act is an unlawful restriction upon a lawful business giving the board the power to destroy competition and create a monopoly, and deprive the citizen of a right guaranteed to him by Art. 1, Sec. 1„ of the bill of rights, of enjoying and possessing his property.</p> <p>[Syllabus by the court.]</p>

<p>ASSESSMENTS — PLEADINGS.</p> <p>1. Lessee of Land not Entitled to Enjoin Improvement Proceedings.</p> <p>A tenant for years of premises abutting upon a proposed improvement within a municipal corporation is not an “owner” within the intendment of the statutes regulating such matters and is not entitled to notice of a resolution declaratory of intention to make said improvement.</p>

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

<p>NEGLIGENCE.</p> <p>.Negligence Presumed from Stepping into Unguarded Stairway.</p> <p>Averments that a customer had knowledge of the existence of an open stairway in a store, stepped backward into the entrance thereof and was evidently precipitated to the basement below, raise a presumption that plaintiff was negligent, and the jury having conclusively found as a fact such negligence, a general verdict for the proprietors of the store will, not be disturbed.</p>

<p>Quo Warranto.</p> <p>That portion of Sec. 845 providing for the appointment of legal counsel is unconstitutional for the reason that it creates a county office and provides for appointment thereto by the county commissioners and is therefore in contravention of Art. 10, See. 2, of the constitution of Ohio. Miller v. Sacramento Co. (Supvrs.) 25 Cal. 93, 98; Ogden v. Raymond, 22 Conn. 379 [58 Am. Dec. 429]; Shelby v. Alcorn, 36 Miss. 273 [72 Am. Dec. 169] ; State v. Brennan, 49 Ohio St. 33 [29 N. E. Rep. 593] ; State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. 723]; State v. HalUday, 61 Ohio St. 171 [55 N. E. Rep. 175] ; Palmer v. Zeigler, 76 Ohio St. 210 [81 N. E. Rep. 234]; State v. Perry Co. (Comrs.) 5 Ohio St. 497; Little Miami By. v. Greene Co. (Comrs.) 31 Ohio St. 343.</p>

<p>LIMITATION OF ACTIONS — TAXES.</p> <p>State’s Immunity against Statute of Limitations is not Transferable.</p> <p>The state’s immunity from the statute of limitations’ barring its claim for taxes is not transferred, to the purchaser, of lands at a tax sale by irtue of Sec. 288Ó Rev. Stat., giving him a lien for the purchase price upon the sale’s- being held invalid; hence, in an action to enforce such lien the plea of such statutory bar constitutes a good defense as to causes of action accrued more than six years.</p> <p>[Syllabus approved by the court.]</p>

<p>BENEFICIAL ASSOCIATIONS — INSURANCE.</p> <p>By-Law of Beneficiary Association Preventing Payment of Death Losses in Case or Presumed Death.</p> <p>A fraternal beneficiary association by-law, declaring that no death losses shall be paid where the only evidence thereof is the disappearance of a member, is for the mutual benefit of all members and not contrary to public policy. Where the constitution of the association reserves the right to amend the by-laws, such by-law is binding upon members and beneficiaries, notwithstanding its enactment but fifteen days before a legal presumption of the death of a member is established, and acceptance by the association from the beneficiary of all the premiums and assessments required by the policy with knowledge of such disappearance.</p>

<p>NTOXICATING LIQUORS — WORDS AND PHRASES.</p> <p>1. Sale of Nonintoxicating Liquors not Taxable.</p> <p>Section 1 of the Dow act, as amended 98 O. L. 99, imposing a tax of $1,000 upon the business of trafficking in “spirituous, vinous, malt or other intoxicating liquors,” as distinguished from the previous sections, 85 O. L. 117 and 92 O. L. 34, imposing a tax upon the traffic in “spirituous, vinous, malt, or any intoxicating liquors,” limits the tax to the traffic in intoxicating liquors only; hence, amendatory act 98 O. L. 99 imposes no tax upon the traffic in nonintoxicating malt liquors.</p> <p>2. “Other’! . as ! Used in Phrase “Spirituous, Vinous, Malt or Other Intoxicating Liquors,” Has a Double Meaning.</p> <p>The word “other” in the descriptive phrase, “spirituous, vinous, malt or other intoxicating liquors” means all intoxicating liquors other than those made from malt, and thus means and includes only such liquors made from malt as are intoxicating.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR — EVIDENCE—MUNICIPAL CORPORATIONS.</p> <p>1. Contention Disclaiming Ownership .in Defective Sewer in Rublic Street Cannot be Raised on Error.</p> <p>A’ contention that a municipality was not shown to be the owner of a defective sewer in a public street, for injuries to property abutting which judgment for damages has been rendered, comes too late on error to-reverse such judgment, especially, since the city made no disclaimer of ownership to the sewer in question by pleading or. otherwise and the-evidence shows that it repaired the sewer after repeated notices of the defects therein.</p> <p>2. Errors in Trial Held Immaterial upon Liability of Municipality for Damages in Greater Amount than Judgment Allowed.</p> <p>"Where a cause of action is stated against a municipality, and the uncon- ' tradicted evidence shows liability for whatever damages resulted, and also that the plaintiff suffered greater damages than were .allowed him by the jury, errors of law in the charge to the jury or in the admission ■ or rejection of evidence- become immaterial.</p> <p>[Syllabus approved by the court.]</p>

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

<p>RECEIVERS — PREFERENCES.</p> <p>Pbefebenoes Given fob Loans in Financial Panic Held Good.</p> <p>A contract by which a corporation hard pressed for money during a. financial panic, transfers certain accounts and pledges certain property as security for loans negotiated m good faith from persons not creditors. is valid, and the parties making such loans should he preferred over the ■general creditors upon distribution of funds in the hands óf a receivér subsequently appointed to wind up its affairs.</p> <p>[Syllabus approved by the court.]</p>

Demurrer to petition on appeal from Knox common pleas. Cited and commented upon the following authorities: Wilson v. Hall, 3 Dec. 589 (6 R. 570) ; affirmed, without report, Hally. Wilson, 53 Ohio St. 670; Moyses v. Neilson, 9 Dec. 623 (7 N. P. 607); Lesley v. Smith, 7 Circ. Dec. 264 (13 R. 189); Doyle v. Doyle, 50 Ohio St. 330 '[34 N. B. Rep. 166].

<p>NEGLIGENCE — STREET RAILWAYS — WITNESSES.</p> <p>1. Instruction not Defining Negligence Charged and Assuming Other Negligence Held Erroneous.</p> <p>In an action for negligence against a traction company, brought by the husband of deceased for the benefit of next of kin, based upon a collision between a trolley car and buggy in which deceased was riding with plaintiff, an instruction: “If you find that the collision was caused by the negligence of both the motorman and said husband, the plaintiff is nevertheless entitled to recover such damages as were sustained by the daughter although he would not be entitled to recover damages for his own benefit,” fails to state the manner in which the negligence of defendant caused the accident and includes negligence not alleged and is erroneous.</p> <p>2. Negligence in not Stopping Car or Reducing Speed upon Seeing a Buggy on the Track not Imputed.</p> <p>Negligent operation and excessive speed of a trolley car being alleged in an action against a traction company as the cause of a collision with a buggy, negligence cannot be imputed from the fact that, the car running at a reasonable speed with proper lookout, the motorman did not reduce its speed or stop- the car when he saw the buggy upon the track, regardless of intervening distance and opportunity of the driver to get the vehicle off the track before the car reached him; the doctrine of last chance is not implied in such a case.</p> <p>3. Burden of Proof, Defendant Having Option as to Defense of Contributory Negligence.</p> <p>The question of contributory negligence not being raised by the pleadings, or being raised no evidence offered thereon, the issue is as upon a general denial; but having elected to prove that contributory negligence caused the injury complained of, although unnecessary, the defendant was not prejudiced by a charge putting the burden of proof upon defendant to establish the contributory negligence.</p> <p>4. Question Leading Witness to Impeach Former Witness Erroneous.</p> <p>A question which leads a witness to answer by using the same words which a former witness has denied using is incompetent, and permitting such a question to be answered constitutes reversible error.</p> <p>5. Former Adjudication on Error Controls Second Review of Same Case.</p> <p>Special instructions identical with those approved either expressly or impliedly upon a former review of the cause will not be held erroneous on a second heaping of the same cause on review unless clearly erroneous. •</p>

The Hibben Dry Goods Company having determined to increase its. capital stock from $100,000 to $200,000, it was further decided that a stock dividend of $25 per share should be distributed to the holders of the old stock who had borne the'burden of founding the business. This, was done and thereafter the new stock was sold.

<p>1. Necessary to Allege Negligent .Selection op Dangerous Appliance or Failure to Warn Operator oe Danger in Use Thereof.</p> <p>A master is only liable for acts negligently done or omitted and so charged; hence, in an action against a brewing company for injuries to an employe resulting from the inhalation of the fumes, of wood alcohol in varnish used on the interior of beer casks; heátéd tó such a .degree as to make the varnish volatile and dangerous to use without an appliance to protect the user, .it is necessary to allege that the varnish used was negligently selected from others in' the market) or that the plaintiff negligently failed to warn him of the-danger of using it;</p> <p>2. Place to Work not Furnished by Master when Servant’s Work Includes the Selection Thereof.</p> <p>A place to work, not in any sense permanent, in which surrounding conditions were constantly changing, the furnishing and preparation of which were a part of the work necessary for a Servant to perform, is not a place furnished by the master.'</p> <p>3. Measure of Duty of Master Determined by What he Would Know by Exercise of Ordinary Care not What he Ought to Know. -</p> <p>The measure of duty required of a master is ascertained by what he would know by the exercise of ordinary care in the premises, not what he “knew or in the exercise of ordinary care ought to have known” of the dangers of the employment.</p> <p>4. Dealer in Brewers’ Supplies not an Expert as to Fact of Certain Spirits Being Poisonous.</p> <p>A dealer in brewers’ supplies and technical machinery, being neither a chemist nor physician, is not qualified to testify as an expert as ■ to whether certain spirits used in varnish are poisonous if applied as a compound of shellac in the enclosed area of a brewer’s vat.</p> <p>E. Directing Verdict on Finding of Facts Alone not Constituting Negligence, Error.</p> <p>A special instruction which directs a verdict for plaintiff in a negligence case in the event that the jury find certain facts leading up to essential fact constituting the negligence charged, but which alone do not amiount to negligence as charged, is erroneous.</p> <p>«. Questions Requiring Argumentative Answer and Appealing to Prejudice ■of Jury Condemned.</p> <p>Questions requiring an argumentative answer, or whicli appeal to the • prejudice, .of . th;e jury, by introducing irrelevant facts,, are not only erronéous, but should draw from the’ court a caution against any further attempt to influence the jury in that manner.</p> <p>7. Failure to Attach Exhibits to Bill of Exceptions at Time of Signing and Allowance not Cured by Subsequent Attachment.</p> <p>Where exhibits are found to be missing from a bill of exceptions at the time it is offered for signature, the time for signing should be extended under the statute, rather than go to the upper court with an incomplete bill, or attempt to make it complete by subsequently attaching the exhibits without the consent or knowledge of the trial judge.</p>

The plaintiff in error was convicted below of keeping his saloon open on Sunday. Cited and commented upon the following authorities: Wightmm v. State, 10 Ohio 452; State v. TJlm, 8 Dee. 677 (7 N. P. 659) ; Marble'v. Akron, 14 Ohio 586; Burckholter v. McConnellsville, 20 Ohio St. 308; Bergman v. Cleveland, 39 Ohio St. 651; Piqua v. Zimmerlin, 35 OhioíSt. 507; Nelson v.-Berea (Vil.)-, 12 Ciro.-.free, 329 (21 R. 781) ; Strattss v. Conneaut (Vil.), 23 Circ.

<p>COURTS.</p> <p>1. Jurisdiction of Police Justice.</p> <p>A police justice of a village, appointed by virtue of authority conferred by Sec. 1831 (Lan. 3365a; B. 1536-884a) Rev. Stat., has under the present statutes of Ohio the same jurisdiction as is conferred upon mayors of such corporations.</p> <p>2. Police Justice a De Facto Offices.</p> <p>Section 1831 (Lan. 3365a; B. 1536-884a) Rev. Stat. bestowing jurisdiction of mayors upon police justices the court believes to be unconstitutional, but inasmuch as the’question , of, its constitutionality, .cannot be raised in a collateral proceeding, the police justice in this case is treated as a de facto officer whose acts are valid as between the public and third persons.</p>

<p>ASSIGNMENTS — RECEIVERS.</p> <p>Receivers Responsible fob Money Paid Them prom Debtor to Drawee op Order-Receivers, having accepted payment of money from a debtor without the consent of the draweé of an order previously made on such debtor, become personally responsible to such drawee for the amount of the order.</p>

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

<p>Error to Tuscarawas common pleas court.</p> <p>Cited and commented upon the following authorities: Senior v. Ratterman, 44 Ohio St. 661 [11 N. E. Rep. 321]; People v. Hinchman, 75 Mich. 587 [42 N. W. Rep. 1006; 4 L. R. A. 707]; Commonwealth v. Mandeville, 142 Mass. 469 [8 N. E. Rep. 327]; Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574]; Stevens v. State, 61 Ohio St. 597 [56 N. E. Rep. 478]; Black, Interp. Laws 171; People v. Wood, 71 N. Y. 371; Stockton v. Railway, 50 N. J. Eq. 52 [24 Atl. Rep. 964; 17 L. R. A. 97]; Pennsylvania Ry. v. Riblet, 66 Pa. St. 164 [5 Am. Rep. 360]; Coosaw Min. Co. v. South Carolina, 144 U. S. 550 [12 Sup. Ct. Rep. 689; 36 L. Ed. 537] ; State v. Fertilizer Co. 24 Ohio St. 611; Hanoff v. State, 37 Ohio St. 178 [41 Am. Rep. 496]; Hartshorn v. State, 29 Ohio St. 635.</p>

<p>ATTORNEY AND CLIENT — ERROR—MASTER AND SERVANT —TRIAL.</p> <p>1. Prejudicial Remarks by Counsel to Jury Requiring Reversal.</p> <p>Statements of fact being made by counsel during a trial, within the hearing of a jury, that are prejudicial, incompetent or not at issue, should be corrected immediately and modified by the trial judge without waiting to be reminded by opposing counsel; in default of so doing, the wrong being one impossible' of nullification or its not manifestly appearing on review that no prejudice in the minds of the jury resulted therefrom, the judgment should be reversed.</p> <p>3. Master’s Liability After Ineffectual Attempt to Repair Defective Machinery.</p> <p>A verdict for damages for injuries received by an employe resulting from defective machinery after an ineffectual effort to repair it will not be reversed, it clearly appearing that the machine at which plaintiff was •employed was not working properly, an effort, was made to repair it and he was assured that it was all right; the fact that the repair was not made at the exact time claimed by plaintiff is immaterial.-</p> <p>,[Syllabus approved by the court ]</p>

<p>BILLS, NOTES AND CHECKS — CHATTEL MORTGAGES.</p> <p>1. Parol Proof Competent to Show Satisfactoriness of Subject of Conditional Sale in Action upon Note.</p> <p>Parol evidence in an action between immediate parties on a promissory note is admissible under Sec. 3171o Rev. Stat. to show that it was not delivered with intent to have effect, or if it took effect at all that it was contingent upon the happening of a given event subsequent to its delivery, as for instance the satisfactoriness of an article sold upon conditional sale.</p> <p>2. Statement of Chattel Mortgage as to Delivery of Notes Secured not Conclusive on Maker.</p> <p>A chattel mortgage, being merely an incident of the debt it secures, its declaration that notes have been delivered, does not remove them from the scope of Sec. 3171o Rev. Stat. so as to conclude the maker from showing that their effect .was to be dependable upon the performance of certain conditions subsequent.</p>

<p>CRIMINAL LAW — JURY.</p> <p>Selection by Court of Grand Jurors from List of Grand and Petit Jurors ■ Called without Designation of Service Required and Designation of Remainder of List as Petit Jurors, and Arbitrary Discharge of Petit Panel, .Held Abuse of Discretion. ■</p> <p>.Assuming to act under Sec. 5165 Rev. Stat., the common pleas judge ordered thirty-five names to be drawn from the jury wheel to act as .grand or petit jurors, without designation whether they should . be grand or petit, or what number should constitute either, in his direction to the clerk. Thirty-four having appeared at the first day of the term he selected fifteen of the said persons and directed the clerk to call . them as grand jurors. This left the remaining nineteen as the regular petit panel. Later at the term he discharged the entire regular petit ■ panel because it or they were “so interested in causes coming on further to be heard in this court, so as to. disqualify them from sitting thereon," and ordered the new jury drawn to appear on the day the accused was tried. Held:</p> <p><1) A court or judge, under 5165 Rev. Stat. has no authority to so exercise his personal selection of the entire grand jury panel in the manner stated. The order to the clerk should stipulate the number of each panel to be drawn; and the clerk should draw from .the wheel the grand and petit juries as distinct panels.</p> <p>(2) A court has ho authority to discharge the entire panel of the petit jury for the cause above stated; and it is an abuse of discretion so to do.</p> <p>(3) The irregularity in the selection of- the grand jury, thus pursued, cannot be attacked by plea in abatement.</p> <p>[Syllabus by the court.]</p>

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

Jackson common pleas court. This cause originated in the mayor’s court of the city of Wellston. Sullivan was charged with the violation of a penal ordinance. He first filed a motion to dismiss the prosecution. , This motion was, in effect, a demurrer to the affidavit. The motion having been overruled, he interposed a demurrer challenging the sufficiency of the affidavit.

<p>ASSAULT AND BATTERY — CHARGE TO JURY.</p> <p>Belief ob Reasonable Ground for Belief of Imminence of Danger to Accused ■ Essential Elements of Self-defense.</p> <p>A. charge to the jury in a prosecution for. assault and battery in which ■ self-defense is asserted, is erroneous where it instructs the jury that the burden is on the defendant to show that he was in actual danger, that the exigency demanded self-defense and that he used no more force than, was actually necessary, ignoring any question as to a reasonable belief that he was in danger and that the force used was necessary to his defense.</p> <p>[Syllabus approved by the court.]</p>

<p>Appeal from Stark common pleas 'court.</p>

<p>BANKS AND BANKING.</p> <p>Bank Has Burden oe Proving Payment oe Account.</p> <p>A bank, in an action by a depositor to recover a balance of savings account, has the burden of proving an alleged payment or withdrawal by the depositor. The burden is not on the depositor to show the balance claimed and that the payment was not made.</p>

<p>COURTS — OFFICE AND OFFICERS.</p> <p>County Pays Court Constables in Probate Court.</p> <p>Section 553 Rev. Stat. is not in contravention of Art. 2, Sec. 26, of the constitution of Ohio; but bas been repealed by the county officers’ salary law, 98 O. L. 89, wbicb provides that the county shall allow the probate judge á certain sum out of the county treasury to pay the salary of all his “deputies, assistants, clerks, bookkeepers, and other employes as may be necessary,” etc. The phrase “other employes” includes court constables.</p> <p>[Syllabus by the court.]</p>

<p>WILLS.</p> <p>“Next of Kin” be Construed in Technical Sense, Where it is not Known-Whet her Certain Relatives are Living or Dead.</p> <p>Where it appears that a testator was uncertain as to whether certain relatives were living or dead, it will he presumed, in the absence of any reference to the statute of descent and distribution, that he intended by the use of the words “next of kin” to designate a particular class of persons related to him in an equal degree of consanguinity.</p>

<p>ATTACHMENT — ERROR.</p> <p>.Judgment of Common Pleas on Appeal from J. P. in Attachment not Reviewable on Error. ,</p> <p>Error does not lie to. reverse, a judgment of a common pleas court, rendered on appeal from a determination of justice of the peace on motion to discharge an-attachment;-the-, judgment to which ’error may be--prosecuted under Sec. 6494 Rev. Stat. is that of the justice of the peace.</p>

Mandamus does not lie against sinking fund trustees. Application for mandamus to compel the sinking fund trustees to pay a judgment against the city.

<p>INTOXICATING LIQUORS.</p> <p>Jones Residence Local Option Petition not Piled Prematurely.</p> <p>Under Sec. 2 of act 98 O. L. 68, the Jones residence local option law, a petition may he filed with a mayor or judge at any time after two years from the filing of a petition under Sec. 1 thereof; but the decision of the mayor .or judge under Sec. 2 cannot take effect until two years after his decision under Sec. 1.</p>

<p>INTERSTATE COMMERCE.</p> <p>1. State Railroad Commission Limited to Consideration oe Intrastate Commerce only.</p> <p>Tbe state railroad commission under act 98 O. L. .342, instituting and prescribing the powers and duties thereof, cannot prescribe rules or assume powers not conferred by tbe act; and in tbe construction of tbe act it may be assumed that tbe general assembly sought to avoid constitutional infirmity in its provisions and intended to limit its provisions to state jurisdiction.</p> <p>2. Terminal Facilities of Cars Used in Interstate Commerce Held not within the Powers or State Railroad Commission.</p> <p>Section 2a of act 98 O. L. 342, limiting its application to state commerce comprehends both transportation and terminal service; tbe character of tbe property to be moved is tbe test in both classes; hence, it does not apply to either transportation or terminal facilities in tbe shipment of interstate commerce.</p>

<p>CARRIERS — EVIDENCE.</p> <p>Burden of Proof in Action to Recover Loss of Traveling Bag.</p> <p>In an action to recover for the loss of a traveling bag from a carrier of parcels for hire, to whom it was entrusted to -be delivered at a.designated . depot in time for a particular train, a prima facie case is made out by the testimony of the plaintiff that he inquired at the baggage room at the proper time and was unable to find his baggage.</p>

<p>Error to Cuyahoga common pleas court.</p> <p>Cited and commented upon the following authorities: Hale v. State, 58 Ohio St. 676 [51 N. E. Rep. 154]; State v. Miller, 24 Conn. 522; State v. Alley, 29 Vt. 60 [67 Am. Dec. 754]; Commonwealth v. Jennings, 121 Mass. 47 [23 Am. Rep. 249] ; 1 Chitty, Crim. Law 284;, State v. Hutchinson, 55 Ohio St. 573 [45 N. E. Rep. 1043]; Billig.heimer v. State, 32 Ohio St. 435; Schlagel v. State, 16 Dee. 295 (3 N. & 429); State v. Kendig, 133 Iowa 164 [110 N. W. Rep. 463]; Commonwealth v. Hovious, 112 Ky. 491 [66 S. W. Rep. 3] ; People v. Moorman, 86 Mich. 433 [49 N. W. Rep. 263]; State v. Evans, 130 Wis. 381 [110 N. W. Rep. 241]; State v. HovorJca, 100 Minn. 249 [110 N. W. Rep. 870; 8 L. R. A. (N. S.) 1272]; Noel v. People, 187 111. 587 [58 N. E. Rep. 616; 52 L. R. A. 287; 79 Am. St. Rep. 238]; State v. Forcier, 65 N. H. 42 [17 Atl. Rep. 577]; State v. Marble, 72 Ohio St. 21 [73 N. E. Rep. 1063; 70 L. R. A. 835; 106 Am. St. Rep. 570] ; 8 Cye. 789; State v. Bixman, 162 Mo. 1 [62 S. W. Rep. 828]; State v. Smiley, 65 Kan. 240 [69 Pac. Rep. 199; 67 L. R. A. 903]; France v. State, 57 Ohio St. 1 [47 N. E. Rep. 1041].</p>

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

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

<p>INTOXICATING LIQUORS.</p> <p>1. Affidavit not Required to State Termini of Period in which Illegal Keeping of Place is Charged.</p> <p>An affidavit charging the keeping of a place where intoxicating liquors were, on a designated day, sold, furnished or given away in violation of law is sufficient to sustain a prosecution for the violation of Sec. 6942 Rev. Stat. as amended by act 99 O. L. 35; the gravamen of the offense ■being the keeping of a place, it is not necessary to state the dates from which and to which the alleged keeping a place in violation of law is averred.</p> <p>2. One Unlawful. Sale Proven, Sufficient to Sustain Conviction.</p> <p>A conviction for keeping a place where intoxicating liquors are sold, etc., contrary to law, is sufficient if sustained by proof of one unlawful sale. •3. Charging General Violation of Intoxicating Laws Sufficient.</p> <p>An affidavit averring unlawful sale of intoxicating liquors, and proof of any unlawful sale are sufficient to sustain a prosecution for violation of the liquor laws; it is not necessary to aver a particular statutory violation.</p> <p>■4. Proof of Certified Copt of Local Option Election to Make Prima Fací* 1 Case not Exclusive Evidence.</p> <p>Section 1 of act 99 O. L. 35, the Rose local option law, making a certified copy of the result of a local option election sufficient proof thereof, is not exclusive; any competent evidence may be offered to sustain a prosecu- ■ tion for a violation of the act.</p> <p>5. Evidence of Chief of Police Telling where Officer Obtained Liquor is Sufficient.</p> <p>The admission of testimony of a chief of police merely stating “that a police officer told him where he got intoxicating liquors in dry territory” is not prejudicial error.</p> <p>[Syllabus approved by the court.]</p>

<p>OFFICE AND OFFICERS.</p> <p>Mayor and Member of Congress not Incompatible Office.</p> <p>The offices of mayor and member of congress are not incompatible, and may be held by the same .person.</p> <p>[Syllabus by the court.]</p>

<p>Mandamus.</p> <p>Cited and commented upon the following authorities: Mack v. Brammer, 28 Ohio St. 508; Scovern v. State, 6 Ohio St. 288; Eurford v. Omaha City, 4 Neb. 336; Shellenberger v. Ransom, 41 Neb. 631 [59 N. W. Rep. 935; 25 L. R. A. 564]; Ives v. McNicoll, 59 Ohio St. 402 [53 N. E. Rep. 60; 43 L. R. A. 772; 69 Am. St. Rep. 780] ; State v. Akins, 10 Cire. Dec. 121 (18 R. 349).</p> <p>G. S. Marshall, city solicitor, and E. L. Weinland, for defendant: Cited and commented upon the following authorities: People v. Butler, 147 N. Y. 164 [41 N. E.'Rep. 416]; Shellenberger v. Ransom, 41 Neb. 631 [59 N. W. Rep. 935; 25 L. R. A. 564]; State v. McElroy, 44 La. Ann. 796 [11 So..Rep. 133; 16 L.-R. A. 278; 32 Am. St. Rep. 355]; Bossmiller v. State, 114 Wis. 169 [89 N. W. Rep. 839; 58 L. R. A. 93; 91 Am. St. Rep. 910] ; Detroit (Common Council) v. Bush, 82 Mich. 532 [46 N. W. Rep. 791; 10 L. R. A. 171],</p>

<p>FIXTURES.</p> <p>Movable Partition Erected by Lessee oe Third Floor oe a Building not a Fixture.</p> <p>A partition, consisting of glass in the upper part and wood in the lower, fitted into a groove of a cleat nailed to the floor and without other fastenings than being wedged at the top and sides, capable of being easily removed without injury to the building, constructed by -lessee across the third floor of a building for subletting a part thereof, cannot be regarded as a permanent accession to the freehold.</p>

<p>EVIDENCE — EXPERT WITNESSES.</p> <p>1. Court Having Admitted in Evidence Several Standards of Comparison of Handwriting Cannot Withdraw Part from the Jury.</p> <p>Where a number of standards of handwriting have been admitted in evidence for the purpose of proving the genuineness of a signature, it is an abuse of discretion on the part of the trial judge amounting to prejudicial error to refuse to permit the jury to take to their room all the standards so introduced as exhibits.</p> <p>2. Theoretical Speculations of Expert Witness on Handwriting Improperly Admitted.</p> <p>An expert witness on handwriting should be confined to matters apparent on the face of the writing. He cannot be permitted by argument or inference. to draw conclusions as to matters not appearing on the face of the writing, and the value of his opinion will depend upon the clearness, with which he demonstrates its correctness.</p> <p>13. Prima Facie Evidence of Delivery and Consideration of Notes.</p> <p>Where promissory notes are found among the papers of a decedent delivery will be presumed; and nothing else appearing, the form of such notes, stipulating that they were for value received, is prima facie evidence of consideration.</p> <p>[Syllabus by the court.]</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>1. Duty of Probate Judge to Certify Matters Relating to Administration of Estates Whenever Interested in Results thereof.</p> <p>Where a probate judge has any interest whatever in a controversy whether financial or otherwise he is authorized, under Sec. 535 Rev. Stat., to certify the case to the common pleas, either on motion of the party interested or acting sua sponte.</p> <p>2. Executor in Management fob Fixed Term Cannot Charge Estate for Valuable Permanent Improvements.</p> <p>An executor has authority to make needed repairs on a building specifically devised with the direction to turn the property over to the devisee at any time after one year from the death of the testator, but such repairs should only go to the extent of keeping the property in as good condition as the executor found it.</p> <p>3. In Will Contest Executor Entitled to Greater Compensation for Counsel Fees Contingent upon Success of Defense.</p> <p>If an executor defends in an action to set the will aside, and the action results in sustaining the will, he may be allowed a reasonable amount for counsel fees in that behalf, and where his contract with counsel was on. the basis of a contingent fee the allowance will be made more liberal because of that fact.</p> <p>4. Executor’s Being Experienced in Business Affairs not Ground for Denting Him Counsel.</p> <p>The fact that an executor is a man of affairs with business experience and ability does not afford ground for denying to him the aid of the counsel in the settlement of the estate.</p> <p>5. Order of Distribution Inoperative "When.</p> <p>An order to an executor with reference to the distribution of the fund in his hands should merely direct him to pay it out in accordance with law and the provisions of the will; any further direction as to whom the. fund is to be paid is inoperative and void.</p> <p>[Syllabus-by the court.]</p>

Quo Waeeanto. The attorney-general, for the purpose of testing the right of the defendants to occupy a strip of land about three miles long included in that part of the Ohio canal which the city of Cleveland was authorized by the act of April 29, 1872 (69 O. L. 182), to occupy and use for certain purposes, hereinafter set forth, filed his petition in .quo warranto.

<p>NEGLIGENCE — STREET RAILWAYS.</p> <p>1. Definition of Ordinary Care Applies to a Class Rather than to an In* dividual.</p> <p>The accepted definition of ordinary care, that it is that degree of care which a person of ordinary prudence would use under like circumstances and-conditions, applies to a class rather than to a particular individual, and-a judgment will not be disturbed on the ground that the use of this definition of ordinary care in the charge of the court was unfair to the' plaintiff in that particular ease.</p> <p>2. Resolution Requiring Street Cars to Stop at Certain Places not Controlling on Passengers.</p> <p>Inasmuch as an ordinance providing that street cars shall stop on the further cross walk is a requirement which applies to the street car company, and in no way controls passengers in boarding or alighting from cars, it is not error to exclude such an ordinance in an action against a municipality for damages.on account of injuries to the plaintiff from stepping into a hole in the street after alighting from a car.</p> <p>3. Not Negligence per se to Alight from Street Car at Safety Stop.</p> <p>It is not negligence per se for a passenger to alight from a street car which has made a safety stop, but has not yet reached its regular place for stopping.</p>

The defendant in error, plaintiff below, examined some rings at the jewelry store of Edward Simper with the view of purchase, as he-' was ied to believe. Before she left the store it was discovered that one-of the rings was missing. What was said when this discovery was made led to a demand on the part of the woman, as Simper claimed, that she-be searched.

<p>CRIMINAL LAW — EMBEZZLEMENT.</p> <p>Charging Embezzlement by . Agent with Proof of Offense by Attorney at Law, a Variance.</p> <p>The capacity in which money or other thing is embezzled is of the essence of the offense and must be proved as charged in the indictment, and the accused is not required to meet a different charge constituting an offense under the same statute; hence, a charge of embezzlement “as agent” under Sec. 6842 Rev. Stat. with proof that accused received the money wrongfully converted, as an “attorney at law” constitutes a variance.</p>

<p>MASTER AND SERVANT — NEGLIGENCE.</p> <p>Failing on Unguarded Belt from Toppling Over Stool not Proximate Cause. Where an employe while standing upon a stool is thrown by the toppling over of the stool upon an unguarded belt and injured, the fact that the belt was unguarded was not the proximate cause of the injury, and recovery cannot be had against the master because of the unguarded belt.</p>

The plaintiff below recovered a judgment against the grand lodge for $1,350 on a policy of insurance on the life of the decedent. The principal defense set up was as to the truthfulness of answers made by the decedent at the time of his application for a policy. In the court below the judgment was against the grand lodge. Burden of proof.

<p>Motion for leave to file petition in error.</p>

<p>NAMES — TRADE NAME.</p> <p>Imitation of an Established Commercial Name Enjoined.</p> <p>Where a family named French has carried on a dairy and milk business for a great number of years under their own name, and more recently have built up in connection therewith an extensive business in ice cream, injunction will lie against the use of the word “French” in connection with an ice cream business carried on by a competitor who is not a Frenchman and whose manifest purpose is to attract trade by creating a false impression as to his own identity.</p> <p>[Syllabus approved by the court.]</p>

<p>CRIMINAL LAW — INDICTMENTS—POCKET PICKING.</p> <p>Indictment foe Pocket Picking does not Include Assault and Battekv.</p> <p>An indictment charging tbe crime of pocket picking, where the property stolen is valued at $20, includes the offense of petit larceny; and a refusal of the court, upon request of the accused, to so instruct the jury, is prejudicial error. But an indictment for pocket picking does not include either assault and battery or assault</p> <p>[Syllabus by the court.]</p>

<p>HUSBAND AND WIFE — DRUGS.</p> <p>Damages Lie fob Selling Morphine to Husband Causing Loss of Consortium.</p> <p>A wife may maintain an action for the loss of the society and companionship of her husband occasioned by the wrongful acts of a druggist who. against her protest, wantonly or maliciously furnishes her husband, an opium habitue, with morphine in such quantities as to incapacitate him.</p>

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

Plaintiff’s contention is that as her action is based upon the mortgage clause attached to the policy that she by said mortgage clause is-not required to make proofs of loss and that the failure of proofs of' loss to be made by the insured, the mortgagor, does not defeat the plaintiff’s action. Hastings v. Insurance Co. 73 N. Y. 147; Eddy v. Assurance Corp. 143 N. Y. 311 [38 N. E. Rep. 307 ; 25 L. R. A. 686]; Syndicate Ins. Co. v. Bohn, 65 Fed.

<p>Error to Hamilton common pleas court.</p> <p>Cited and commented upon the following authorities: 2 Page,. Contracts See. 1015: Smith, Mun. Corp. Sec. 679; Ransom v. Mayor? 24 Barb. (N. Y.) 226; Clough v. Hart, 8 Kan. 487; Frederick v. Douglas Co. 96 Wis. 411 [71 N. W. Rep. 798]; Brome v. Cuming Co. 31 Neb. 362' '[47 N. W. Rep. 1050]; Waters v. Trovillo, 47 Kan. 197 [27 Pac. Rep. 822]; Logan Co. (Comrs.) v. Jones, 4 Okla. 341 [51 Pac. Rep. 565]; State v. Newton, 26 Ohio St. 265; Earnfit v. Winans, 3 Ohio-135; Brower v. Hunt, 18 Ohio St. 311; Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 621]; Little v. Seminary, 72 Ohio St. 417 [74 N. E. Rep. 193]; Morris Coal Co. v. Donley, 73 Ohio St. 298 [76 N. E.. Rep. 945].</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>1. Petition in Error and Undertaking for Retention of Attached PeopeetySufficiently Piled.</p> <p>Piling a petition in error and an undertaking for retention of attached property within the time required upon sustaining a motion to discharge-an attachment, sufficiently complies with Sec. 5563b Rev. Stat.</p> <p>2. Affidavit for Attachment against Nonresident Corporation Must Affirmatively. Show that it is not Doing Business in Ohio, etc.</p> <p>An affidavit in attachment, averring that “defendant is a non-resident of' the state” aided by the petition, alleging that defendant is a corporation-under the laws of another state, which is sworn to positively, is equivalent to a statement that it is a nonresident corporation; hut the affidavit must affirmatively show that the defendant is not within the exceptions prescribed by Subd. 1 of Sec. 5521 Rev. Stat.</p>

<p>Error to Cuyahoga common pleas court.</p> <p>Cited and commented upon tbe following authorities. , Platt v. Craig, 66 Ohio St. 75 [63 N. E. Eep. 594]; Cass v. Billon, 2 Ohio St. 607; State v. Davis, 23 Ohio St. 434; State v. Covington, 29 Ohio St. 102; State v. Hoffman, 35 Ohio St.-435; State v. Kendle, 52 Ohio St. 346 [39 N. E. Rep. 947]; State v. Tates, 66 Ohio St. 546 [64 N. E. Rep. 570]; State v. Houck, 31 O. C. C. 15 (11 N. S. 414); Cricket v. State, 18 Ohio St. 9; State v. Spellmire, 67. Ohio St. 77 [65 N. E. Rep. 619]; Kelley v. State, 6 Ohio St. 269; Goshorn v. Purcell, 11 Ohio St. 641.</p>

<p>-BAIL AND RECOGNIZANCE — PRINCIPAL AND SURETIES..</p> <p>Surety Desiring to Surrender Dependant is not Discharged until Court-Accepts.</p> <p>' A surety on a hail' bond who desires to surrender the defendant and deliver him in open court, is not discharged from further responsibility an his bond until the court accepts said delivery, and the only evidence of the delivery is the record of the cour,t.</p>

<p>INTOXICATING LIQUORS.</p> <p>Sale or Nonintoxicating Liquors not Proscribed bt Rose Countt Locau Option Law.</p> <p>Nonintoxicating malt liquors are not within the proscriptions of act 99 O. L. 35, for the sale or furnishing of which in Rose county local option territory one may be prosecuted and convicted; intoxicating liquors, only, come within the inhibitions of the act.</p> <p>[Syllabus approved by the court.]</p>

<p>MUNICIPAL CORPORATIONS — STREETS.</p> <p>Vacation of Streets Granted only upon Satisfactory Proof of the Necessity.</p> <p>Under the statute of Ohio a court should not vacate a public street unless satisfied that such vacation will conduce to the general interests of the municipality. The court is not in error in refusing such vacation upon a mere showing that the street is not demanded by the present needs of travel. Sec. 2655 Rev. Stat. construed and applied.</p> <p>[Syllabus by the court.]</p>

<p>INSURANCE.</p> <p>:No Recovery of Premium can be had by Unlicensed Foreign Insurance Companies.</p> <p>A foreign insurance company, not complying with Sec. 3656 Rev. Stat., requiring a license to be issued to do business within this state, having evaded this requirement by issuing policies outside of the state on property located in this state, cannot prosecute an action in this state for the recovery of premiums on such policies; but it may maintain an action therefor within the jurisdiction of the state within which the insurance was issued, jurisdiction having been obtained therein over the person of the policy holder.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Cuyahoga common pleas court.</p> <p>Cited and commented upon the following authorities. Williams v. State,, 18 Ohio St. 46, 47; Picket v. State, 22 Ohio St. 405; Carey v. State,-70 Ohio St. 321 [70 N. E. Rep. 955]; Hamilton v. State, 78’Ohio-St. 76 [84 N. B. Rep. 601]; State v. Hutchinson, 55 Ohio St. 573 [45 N. B. Rep. 1043] ; Marvin v. State, 7 Dec. 204 (5 N. P. '209); S,tedie v. Karb, 78 Ohio St. 376 [85 N, E. Rep. 580]State v. Bansick, 62 Ohio St. 283, 286 [56 N. E. Rep. 1024]; Nickel v. State, 3 Circ. Dec. 605 (6 R. 601); Blackburn v. State, 22 Ohio St. 581; Miller v. State, 73 OM® St. 195 [76 N. E. Rep. 823]Hdlrymple v. State, 26 O. O. O. 562 (5 N. S. 185); Derby v. State, 24 O. C. O. 304 (6 N. S. 91) ; .1 BishopOrim. Proced. Sec. 1291; United Slates v. Harman, 68 Fed. Rep.i-472; Cross, In re, 146 U. S. 271 [13 Sup. Ct. Rep. 109; 36 L. Ed. 969] 5 Bonner, In re, 151 U. S. 242, 258 [14 Sup. Ct. Rep. 323; 38 L. Ed.. 149]; Baum v. Hartmann, 238 IE. 519 [87 N. E. Rep. 334]; State -v. Bohn, 55 Ohio St. 555 [45 N. E. Rep. 707] y State v. Budd, 65 Ohio Sfe. 1 [60 N. E. Rep. 988],</p>

<p>ERROR — NEGLIGENCE—SIDEWALKS.</p> <p>1; Objection that Pleading is Indefinite Comes too Late on Error.</p> <p>An objection that a petition does not state a cause of action because indefinite in allegation, deferred until the case reaches the reviewing court comes too late.</p> <p>2. Juror’s Having Obtained Verdict against Municipality not Ground for Reversal of Like Action.</p> <p>The fact that one of the jurors in a similar action for damages against a municipality had recovered a verdict, does not constitute ground for a reversal of the judgment in the present case, where it appears that counsel for the municipality made no examination of the juror before goirig into the trial.</p> <p>3. Charge that Plaintiff Knowingly and Voluntarily Went upon Defective Sidewalk Distinguished from Negligently Going Thereon.</p> <p>Where there is an allegation in the answer of the city that the plaintiff having full knowledge of the condition of the walk voluntarily went upon and used it and thereby contributed to his alleged injury, the city is entitled to a more definite charge as to the plaintiff’s negligence in so doing than is found in the statement that if he wag negligent in going upon the walk he could not recover.</p> <p>4. Overruling Motion for New Trial,.- Error. ■ ■</p> <p>The evidence being evenly balanced as to whether there was a walk at the point where the plaintiff claimed to have been injured, affidavits to the effect that on the night of the accident and while he was being helped home he had stated that the place where he had fallen was more than a block distant from the point alleged in the petition are a sufficient warrant for granting a new trial, and the overruling of the motion was error of a character that makes it necessary to reverse the judgment.</p>

<p>ASSIGNMENTS — MORTGAGES.</p> <p>Record of Assignment of Mortgage not Necessary to Give Mortgage Priority.</p> <p>A record of an assignment of a mortgage is not required by Sec. 4135 Rev. Stat., in order to give the mortgage priority over subsequent liens.</p>

<p>STREET RAILWAYS.</p> <p>1. Duty of Traction Company as to Warning and Speed of Car Approaching Public Crossing Towards which Children were Walking.</p> <p>A traction company, without warning, running a car at full speed while approaching a public crossing, although not a street intersection, is negligent, especially since deceased and several other children were walking on the sidewalk toward the crossing with their backs to the car and in full view of the motorman.</p> <p>2. Reasonableness of Speed of Street Car at Crossing a Question for Jury.</p> <p>If a child struck by a street car at a public crossing might have-passed over the tracks in safety and escaped collision by the car’s running at a reasonable speed, a greater speed may be deemed the proximate cause thereof. Whether the rate of speed was reasonable or unreasonable at that particular place and under all the circumstances, is a question for the jury.</p> <p>3. Instruction Fixing Liability for Negligent Operation of Street Car at Instant Child Killed Attempted to Cross Track at Public Crossing, is Erroneous.</p> <p>An instruction in an action against a traction company for the wrongful death of a child killed by a street car while on a public crossing, that requires a verdict for defendant regardless of any act of negligence on the part of the motorman' in the operation of the car prior to the instant the child attempted to cross the track, is erroneous.</p>

<p>NEGLIGENCE — RAILROADS.</p> <p>Negligence of Section Hand in Failing to See Approaching Train on Straight-Track Precludes Recovery.</p> <p>Failure of a section band working beside a railroad track in full light of day, without obstruction of view for more than a mile, to see or hear a train approaching and being struck and injured by it, notwithstanding a movement on his part would have avoided the accident, precludes, recovery of damages therefir; the fact that he was given no warning of the train’s approach by either the engineer or section boss does not relieve him from his own negligence.</p>

.Error to Hamilton common pleas court. This action was brought in the court below by William Hulvershorn, doing business as the Ingels Forwarding & Transfer Co. Plaintiff alleged that in September, 1902, while one of plaintiff’s teams, attached to a coal wagon, was being driven along Spring Grove avenue, Cincinnati, at a point where the space between the street car track and the curb was narrow, a traction car came rapidly up from behind and without warning to the driver of…

<p>GAS COMPANIES —INJUNCTION —MUNICIPAL CORPORATIONS.</p> <p>1. Power of City Solicitor to Enjoin Public Service Corporation from Violating its Obligations to City and Inhabitants Notwithstanding Ordinance.</p> <p>A city solicitor has authority under Sec. 1777 Rev. Stat., to institute suit, in the name of the municipality to enjoin a public service corporation from violating its obligations to the city and its inhabitants. Such an. action will lie, ■ notwithstanding the corporation is acting under color of an ordinance, if the provision of the ordinance complained of is in excess of the power of council to grant.</p> <p>2. Natural Gas Company Compelled to Furnish Gas for Illuminating Purposes Although Grant Excludes Such Use.</p> <p>A municipality is without authority to prescribe by ordinance that a commodity acquired by its inhabitants shall not be used for any purpose that is not dangerous or injurious; hence, a provision in an ordinance--embodying a grant to a natural gas company, that gas shall not be furnished for illuminating purposes, but only for heating and .power, is void, and the company may be compelled to either furnish gas for-illuminating purposes or abandon its rights in the streets.</p> <p>3. Provision Requiring Notice before Turning Natural Gas into Artificial. Gas Pipes Reasonable.</p> <p>A provision requiring notice to a natural gas company before a consumer may turn natural gas into artificial gas pipes is reasonable in view of increased pressure and danger; but the piping being in suitable and. safe condition- therefor the consumer is entitled to immediate service. Dustin, J.</p> <p>4. Artificial Gas Company upon Absorption of Natural Gas Company Estopped to Assert Invalid Limitations against the Latter.</p> <p>An artificial gas company having purchased and absorbed a competing-natural gas company is estopped to restore and continue an invalid limitation of rights prescribed by ordinance against the latter. Dustin,. J.</p> <p>[Syllabus approved by the court.]</p>

Counsel for defendants in error cited in support of the proposition that an agreed statement of facts, although filed in a case, is not an “original” paper. Garner v. White, 23 Ohio St. 192; Young v. State, 23 Ohio St. 577; Montgomery v. State, 4 Circ. Dec. 199 (12 R. 679); Brock v. State, 12 Circ. Dec. 467 (22 R. 364); Clev. & E. Elec. By. v. Hunter, 12 Circ. Dec. 769 (10 N. S. 564); State v. Spiegel, 25 O. C. C. 552 (4 N. S. 255).

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

The plaintiff brings suit to quiet title to a strip of land claimed liy the defendant village as a street. The village contends that certain streets within the territory of which a part of the village is now formed were dedicated by the owner of the lands in 1849, some thirty years before the incorporation of the village of Home City. The plaintiff built a fence across one of these streets and for many years used the space fenced in for garden purposes.

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

<p>LIMITATION OF ACTIONS — MORTGAGES.</p> <p>1. Bar of Statute of Limitations Saved from Running by Three Methods.</p> <p>Either one of the three methods, prescribed by Sec. 4992 Rev. Stat., for keeping claims alive, payment, promise of payment or acknowledgment thereof, complies with the saving clause of the statute and is adequate to prevent its running. Hence, payment of a sum of money within fifteen years after the maturing of a note secured by mortgage, is sufficient to constitute an acknowledgment of an existing liability.</p> <p>2. Payments to Prevent Operation of Bar of Limitation of Actions.</p> <p>A nephew having an interest in a mortgage upon his uncle’s lands, transferring his interest therein to his brother by written assignment, recognizes the existence and validity of the mortgage and note secured thereby; and having obtained within a month thereafter a warranty deed of the mortgaged premises in which he subsequently grants back a life estate to the uncle in pursuance of a family arrangement to leave him in possession undisturbed during his life, cannot assert that payments made by him and endorsed upon the note did not operate to keep the mortgage alive after the uncle’s death.</p> <p>3. Payments on or Acknowledgments of Mortgage Debt Operating to Preserve Lien though Debt Barred. ,</p> <p>Payments on or acknowledgments of a debt secured by mortgage, by the owner of an equity of redemption may operate to keep the mortgage lien alive as against the statute of limitations although a right of action on the debt against the original debtor may be barred.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Richland common pleas court.</p> <p>Cited and commented upon the following authorities: Hunterson v. Traction Co. 205 Pa. St. 568 [55 Atl. Rep. 543] ; 1 Moore, Facts Sec. 421; Schmidt v. Railway, 66 N. J. L. 424 [49 Atl. Rep. 438] ; Powelson v. Traction Co. 204 Pa. St. 474 [54 Atl. Rep. 282]; Bacoii v. Railway, 143 Pa. St. 14 [21 Atl. Rep. 1002]; Pennsylvania Ry. v. Aspell, 23 Pa. St. 147 [62 Am. Dec. 323]; Harvey y. Railway, 116 Mass. 269; Murphy v. Railway, 71 N. J. Law 5 [58 Atl. Rep. 1018]; Hunter v. Railway, 112 N. Y. 371 [19 N. E. Rep. 820; 2 L. R. A. 832;. 8 Am. St. Rep. 752]; Denny v. Railway, 132 N. C. 340 [43 S. E. Rep.. 847]; Gordon v. Railway, 132 N. C. 565 [44 S. E. Rep. 25]; Pope v. Railway, 113 111. App. 503; Nathan v. Railway, 91 N. Y. Supp. 35;. Monroe v. Radhvay, 79 App. Div. 587 [80 N. Y. Supp. 177] ; Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571]; Ashtabula Rapid-Trans. Co. v. Holmes, 67 Ohio St. 153 [65 N.- E. Rep. 877]: Timmons v. Railway, 6 Ohio St. 105; Cincinnati, L. & A. Elec. Ry. v. Lohe, 68 Ohio St. 101 [67 N. E. Rep. 161; 67 L. R. A. 637] ; Baltimore & O. Ry. v. Johnson, 71 Ohio St. 475; 1 Fetter, Car. Pass. 595, Sec. 228; Schepers v. Railway, 126 Mo. 665 [29 S. W. Rep. 712]; Baltimore Trac. Co. v. State, 78 Md. 409 [28 Atl. Rep. 397]; Stager v. Railway, 119 Pa. St. 70 [12 Atl. Rep. 821]; Basch v. Railway. 40 111. App. 583; Gordon v. Railway, 175 Mass. 181 [55 N. E. Rep. 990] ; Cincinnati Trac. Co. v. Holzenkamp, 74 Ohio St. 379 [78 N. E. Rep. 529; 6 L. R. A. (N. S.) 800; 113 Am. St. Rep. 980] ; Picard v. Railway, 147 Pa. St. 195 [23 Atl. Rep. 566],</p> <p>Motion to direct a verdict. Union Pacific Ry. v. Daniels, 152 U. S. 684 [14 Sup. Ct. Rep. 756; 38 L. Ed. 597]; Runkte v. Burnham, 153 U. S. 216 [14 Sup. Ct. Rep. 837; 38 L. Ed. 694]; Columbia & P. S. Ry. v. Hawthorne, 144 U. S. 202 [12 Sup. Ct. Rep. 591; 36 L. Ed. 405]; Gramd Trunk Ry. v. Cummings, 106 U. S. 700 [1 Sup. Ct. Rep. 493; 27 L. Ed. 266]; Accident Ins. Co. v. Crandal, 120 U. S. 527 [7 Sup. Ct. Rep. 685; 30 L. Ed. 740]; Northern Pacific Ry. v. Mares, 123 U. S. 710 [8 Sup. Ct. Rep. 321; 31 L. Ed. 296]; Robertson v. Perkins, 129 U. S. 233 [9 Sup. Ct. Rep. 279; 32 L. Ed. 686] ; Northwestern Steamship Co. v. Griggs, 146 Fed. Rep. 472 [77 C. C. A. 28]; Western Union Tel. Co. v. Thorn, 64 Fed. Rep. 287 [12 C. C. A. 104]; Pike v. White, Wri. 758; Bradley v. Poole, 98 Mass. 169 [93 Am. Dec. 144]; Denver & R. G. Ry. v. Robinson, 6 Coló. App. 432 [40 Pac. Rep. 840]; Chamberlain v. Woodin. 2 Idaho 642 [23 Pac. Rep. 177]; Chicago & G. W. Ry. v. Wedel, 144 111. 9 [32 N. E. Rep. 547]; McGregory v. Prescott, 59 Mass. 67; Lynch v. Johnson, 109 Mich., 640 [67 N. W. Rep. 908]; Thompson v. Avery, 11 Utah 214 [39 Pac. Rep. 829]; Carr v. Manahan, 44 Yt. 246; Scolamd v. Scoland, 4 Wash. 118 [29 Pae. Rep. 930]; 46 Cent. Dig. Sec. 982; Paint-on v. Railway, 83 N. Y. 7; Dean v. Corbett, 51 N. Y. Super. 103; Carroll v. O’Shea, 2 Misc. 437 [21 N. Y. Supp. 956]; Illstad v. Anderson, 2 N. D. 167 [49 N. W. Rep. 659]; Lake Shore & M. S. Ry. v. Richards, 152 111. 59 [38 N. E. Rep. 773; 30 L. R. A. 33]; Totten v. Burhcms, 103 Mich. 6 [61 N. W. Rep. 58]; Noyes v. Parker, 64 Yt. 379 [24 Atl. Rep. 12]; Poling v. Railway, 38 W. Va. 645 [18 S. E. Rep. 782; 24 L. R. A. 215]; Perkins v. Thornburgh, 10 Cal. 189; Weil v. Nevitt. 18 Colo. 10 [31 Pac. Rep. 487]; Werner v. Footman, 54 Ga. 128; Maclin v. Bloom, 54 Miss. 365; Perth Amboy Mfg. Co. v. Condit, 21 N. J. L. 659; Smith v. Isaacs, 37 N. Y. Super. 3; O’Connell v. Samuel, 81 Hun 357 [30 N. Y. Supp. 889]; Cattell v. Furgusson, 3 Wash. 541 [28 Pac. Rep. 750]; Barton v. Kane, 17 Wis. 38; 48 Cent. Dig. Sec. 982; Matson v. Railway, 9 Wash. 529 [37 Pac. Rep. 707].</p> <p>Charge of the trial court. Pittsburg, C. & St. L. Ry. v. Krause, 30 Ohio St. 222; Holzenkamp v. Traction Co. 14 Dec. 586 (2 N. S. 157), affirmed, Cincinnati Trac. Co. v. Holzenkamp, 16 Dec. 673 (3 N. S. 537), affirmed, Cincinnati Trac. Co. v. Holzenkamp, 74 Ohio St. 379 [78 N. B. Rep. 529; 6 L. R. A. (N. S.) 800; 113 Am. St. Rep. 980]; Altemeier v. Railway, 5 Dec. 655 (4 N. P. 224) ; Carney v. Railway, 8 Dec. 587; Butler v. Railway, 121 N. Y. 112 [24 N. B. Rep. 187]; Cincinnati, H. & D. Ry. v. Nolan, 4 Circ. Dec. 409 (8 R. 347); Beach, Contrib. Neg. 186, Sec. 145; Mills v. Railway, 94 Tex. 242 [59 S. W. Rep. 874; 55 L. R. A. 497]; Wyatt v. Railway, 55 Mo. 485; Fulks v. Railway, 111 Mo. 335 [19 S. W. Rep. 818]; Schepers v. Railway, 126 Mo. 665 [29 S. W. Rep. 712]; Cousins v. Railway, 96 ‘Mich. 386 [56 N. W. Rep. 14]; Baltimore <& O. Ry. v. Kane, 69 Md. 11 [13 Atl. Rep. 387; 9 Am. St. Rep. 387; 3 Am. Neg. Cas. 689]; New York, P. & N. Ry. v. Coulbourn, 69 Md. 360 [9 Am. St. Rep. 430]; North Birmingham Ry. v. Liddicoat, 99 Ala. 545 [13 So. Rep. 18; 2 Am. Neg. Cas. 99]; Texas & Pacific Ry. v. Murphy, 46 Tex. 356 [26 Am. Rep. 272; 6 Am. Neg. Cas. 462]; Atchinson, T. & S. F. Ry. v. McCandliss, 33 Kan. 366 [6 Pac. Rep. 587; 3 Am,. Neg. Cas: 430] ; Warren v. Railway, 37 Kan. 408 [15 Pac. Rep. 601; 3 Am. Neg. Cas. 442]; Shannon v. Railway, 78 Me. 52 [2 Atl. Rep. 678; 3 Am. Neg. Cas. 585]; Johnson v. Railway, 70 Pa. St. 357; Little Rock c& Ft. S. Ry. v. Atkins, 46 Ark. 423; North Chicago St. Ry. v. Williams, 140 111. 275 [29 N. E. Rep. 672]; Omaha St. Ry. v. Martin, 48 Neb. 65 [66 N. W. Rep. ÍL007]; Ober v. Railway, 44 La. Ann. 1059 [32 Am. St. Rep. 366]; Finkeldey v. Cable Co. 114 Cal. 28 [45 Pac. Rep. 996]; Pittsburgh & L. E. Ry. v. Qongwahr, 1 O. S. U. 30 (22 Bull. 280) ; North Chicago St. Ry. v. Wiswell, 168 111. 613 [48 N. E. Rep. 407]; Central Pass. Ry. v. Rose, 15 Ky. Law 209 [22 S. W. Rep. 745]; Picard v. Railway, 147 Pa. St. 195 [23 Atl. Rep. 566]; Sahlgaard v. Railway, 48 Minn. 232 [51 N. W. Rep. I'll]; Gallagher v. Railway, 156 Mass. 157 [30 N. E. Rep. 480]; Carroll v. Transit Co. 107 Mo. 653 [17 S. W. Rep. 889]; Bacon v. Railway, 143 Pa. St. 14 [21 Atl. Rep. 1002]; Citizens’ St. Ry. v. Spafhr, 7 Ind. App. 23 [33 N. E. Rep. 446; 3 Am. Neg. Cas. 23]; Murphy v. Railway, 43 Mo. App. 342 [4 Am. Neg. Cas. 383]; Corlin v. Railway, 154 Mass. 197 [27 N. E. Rep. 1000; 3 Am. Neg. Cas. 871]; White v. Railway, 92 Ga. 494 [17 S. E. Rep. 672]; Briggs v. Railway, 148 Mass. 72 [19 N. E. Rep. 19; 12 Am. St. Rep. 518]; Walters v. Traction Co. 161 Pa. St. 36 [28 Atl. Rep. 941]; Austrian v. Traction Co. 19 Pa. Super. 329; Packard, v. Traction Co. 12 Circ. Dec. 822 (22 R. 578); Butler v. Railway, 121 N. Y. 112 [24 N. E. Rep. 187; 5 Am. Neg. Cas. 325]; Hunterson v. Traction Co. 205 Pa. St. 568 [55 Atl. Rep. 543]; Solomon v. Railway, 103 N. Y. 437 [9 N. E. Rep. 430; 57 Am. Rep. 760]; Hunter v. Railway, 126 N. Y. 18 [26 N. E. Rep. 958; 12 L. R. A. 429]; Cleveland City Ry. v. Oslorn, 66 Ohio St. 45 [63 N. E. Rep. 604]; Altemeire v. Railway, 5 Dee. 655 (4 N. P. 224), affirmed, Cincinnati St. Ry. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Cincinnati, L. é A. Elec. St. Ry. v. Poke, 68 Ohio St. 101 [67 N. E. Rep. 161; 67 L. R. A. 637]; Conner v. Railway, 105 Ind. 62 [4 N. E. Rep. 441; 55 Am. Rep. 177; 3 Am. Neg. Cas. 181].</p>

<p>INSURANCE.</p> <p>1. Evidence of Waiver of Condition of Policy Inadmissible on Pleading Averring Definite Performance of alt, Conditions.</p> <p>An allegation that conditions of a life policy were definitely performed on a designated date and an allegation that a condition as to proofs of death was subsequently waived are inconsistent; and, in the absence of express allegations in, or any inference deducible from, the petition excusing nonperformance thereof, evidence on the question of waiver is incompetent and inadmissible.</p> <p>3. Requirements that Proof of Death of ¡ Insured be Made in- Writing, Deceased IdentiÉíEó;. as : Insured, -‘Existence of Beneficiary are Reasonable.</p> <p>Conditions in a policy of life insurance requiring proof of death to be made in writing, identification of deceased as insured. and proof that beneficiary is living are reasonable requirements.</p> <p>3. Notice of Defect in Proof of Death not Required if Repeated Notices are Given that no Proofs of Death are Piled.</p> <p>Notice of defect in proof of death is not necessary if repeated notices have been given by the' insurance company that no proof of death has been filed with it.</p>

<p>RAILROADS.</p> <p>1. Defect in Engine not Proximate Cause of Injuries Received by Fireman Carelessly Stepping from Engine.</p> <p>Where a fireman is injured in stepping off his engine backwards and in the dark, and without making any effort to discover where he was stepping, the fact that his reason for getting off was that the engine was out of repair and needed attention does not constitute the proximate cause of his injury or render the railway company liable therefor.</p> <p>2. Failure to Light Bridge or Provide Guard Rails Imposes no Obligation upon Railroads for Injuries to Servants.</p> <p>Nor does the fact that the engine happened to be standing at the time on a bridge which was unlighted and not provided with guard rails add to the responsibility of the company or eliminate the element of plaintiff’s own negligence as to his safety.</p> <p>3. Servant of Lessee of Railroad Cannot Maintain Action of Negligence against Lessor.</p> <p>Section 3305 Rev. Stat., relating to the lease of railroads, covers obligations of the lessor and lessee to the public; hence, does not' apply to an action for negligence by an employe of lessee against the lessor and lessee.</p>

<p>Error to Franklin juvenile court.</p>

<p>FORFEITURES — INJUNCTIONS—LANDLORD AND TENANT.</p> <p>Injunction against Forfeiture of Lease Covenanting against Underletting Previously Waived.</p> <p>Injunction will lie to restrain lessors of premises from declaring a forfeiture of a lease, covenanting against underletting, for past violations on the part of lessee made with the knowledge of and without objection by lessees; but such injunction will hot operate to prevent lessors from seeking to secure such premises for future violations after' notice that lessors intend to stand upon the covenants therein.</p>

<p>DIVORCE AND ALIMONY — PROCESS.</p> <p>Constructive Service upon Nonresident Stockholder in Divorce Gives Jurisdiction to Order Transfer of his Stock to his Wife for Alimony.</p> <p>Constructive service by publication upon a nonresident stockholder in a proceeding for divorce and alimony brought by his wife, together with actual service upon the corporations in which he held stock, enjoining them from transferring any stock standing in his name, gives the court sufficient control of such stock to decree the transfer of ownership therein to plaintiff by way of alimony.</p>

<p>DAMAGES — NUISANCE—TRIAL.</p> <p>1. Consequence not Negligence of Flooding Premises Gist of Damages.</p> <p>The consequences and not the manner of causing an increased flow of water upon premises of another constitute the wrong for which damages lie, and it is immaterial whether done negligently or otherwise.</p> <p>3. Measure of Damages for Increased Flow of Surface Water upon Premises.</p> <p>The measure of damages to property accruing from an increased flow of surface water thereon is the cost of repairs necessary to preserve the property during the period complained of and the further cost of restoring the property to its former condition, not exceeding the difference in value thereof; but recovery cannot be had twice for the same injury.</p> <p>3. Discretion in Order of Admission of Testimony.</p> <p>Admission of evidence out of order, the court stating at the time that opposing counsel may offer evidence to meet it, is not an abuse of judicial discretion.</p>

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

<p>INSURANCE — PLEADING—TRIAL.</p> <p>1. Answer Failing to Aver Rebate Defense to Action on Notes .Given eob Insurance.</p> <p>An answer, in an action on notes given for life insurance, alleging: (1) that the notes were executed upon an express agreement that they should be discounted with a certain brokerage firm of which insured was a member and brokerage allowed such firm, otherwise the insurance should be void and the policy cancelled; (2) that upon notice of failure to carry out said brokerage agreement, the policy was returned to the agent, cancellation demanded and return of notes requested; and (3) that insured became the beneficiary of a rebate, illegal and contrary to Sec. 1 of act 90 O. L. 345 (Lan. Rev. Stat. 5802; B. 3631-4), is defective in that it fails to bring insured within the terms of the statute so as to invalidate the notes or make them fail for want of consideration.</p> <p>2. Judgment of the Pleadings, not Prejudicial.</p> <p>Judgment on the pleadings without testing the sufficiency of the answer by demurrer is not prejudicial error, no motion being made by defendant for leave to amend his answer or file some other pleading.</p> <p>[Syllabus approved by the court.]</p>

<p>FORCIBLE ENTRY AND DETAINER — INJUNCTION—QUIET TITLE.</p> <p>1. Injunction Lies to Restrain Execution of Judgment in Forcible Entry and Detainer.</p> <p>Injunction lies against execution of a judgment in forcible entry and detainer pending determination of title, such judgment under Sec. 6601 Rev. Stat. not being a bar to any after action.</p> <p>2. Title Quieted of Lessee of Permanent Leasehold upon Election to Renew and Payment of Rent Arrearages.</p> <p>A lessee under a lease for three and one-half years renewable forever, holding over twenty days before notice to vacate the premises is served upon, thereby elects to renew; and, having offered to pay all arrearage of rent due on the lease, conditions upon which forfeiture could be declared for nonpayment of rent not having been complied with by lessor, the lessee is entitled to a decree quieting his title to a permanent leasehold.</p>

The plaintiff railway company brought an action in the court below to enjoin the defendant, Copenhaver, administrator, from prosecuting six different actions against the said company on account of the deaths of six different members of the same family, who were killed by being struck by a train at one of the company’s crossings.

Harry Enderes was convicted in the police court of the city of Cincinnati, Hamilton county, Ohio, on the charge of suffering a game of chance on the premises. The alleged offense was committed on the Island Queen, an Ohio river steamer, lying at “Coney Island,” a pleasure resort on the Ohio side of the river, near Cincinnati.

<p>EXECUTORS AND ADMINISTRATORS — PARTIES.</p> <p>Idiots Made Parties to Record bt Answer of Guardian.</p> <p>In a proceeding to sell, real estate to pay debts, brought by an administrator, heirs who are idiots are made parties to the record by their guardian’s filing an answer and cross petition, waiving issuance and service of summons, admitting the allegations of the petition and asking that its prayer be granted.</p>

<p>ERROR.</p> <p>Dismissal of Proceedings in Error for Failure to File Transcript.</p> <p>Failure to file transcript of final record or transcript of docket or journal entries until after four months of rendition of judgment complained of and filing of petition in error gives the appellate court no jurisdiction to review judgment.</p>

<p>ASSAULT AND BATTERY — CARRIERS—DAMAGES.</p> <p>Assault by Conductor upon a Passenger Renders Carrier Liable tom Punitive Damages.</p> <p>A conductor of a railway train is required by his duty to the railway company employing him, to protect passengers and carry them to their destination and as an aid to the performance of this duty the state • has by statute, Secs. 3433, 3434 Rev. Stat., invested him with special police powers; hence, an assault by a conductor upon a passenger in his train is governed by a different rule than injuries inflicted by servants acting in other capacities, and where the conduct of the passenger assaulted is peaceful and he is not violating any rules of the carrier, the conductor will be deemed to have acted within the scop* of his authority for which punitive as well as actual damages may he assessed against the company.</p> <p>[Syllabus approved by the court.] .</p>

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

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

<p>BROKERS — EMBEZZLEMENT.</p> <p>Conversion op Collateral Stock Shares by Broker not Embezzlement.</p> <p>Where a broker holds as collateral shares of stock belonging to a client, the relation between them is not that of principal and agent, but of debtor and creditor, and the conversion of the stock by the broker to his own use does not constitute embezzlement within the meaning of Sec. 6842 Rev. Stat.</p>

<p>ERROR — INTERROGATORIES.</p> <p>Sustaining Demurrer to Interrogatories Annexed to and Seeking Disclosure of Unknown Parties Referred to Therein is not a Final Order.</p> <p>Sustaining a demurrer to interrogatories by virtue of Sec. 5099 Rev. Stat. annexed to a petition declaring a single defendant but which seeks dis- ' closure of the names of unknown parties of whom it is alleged plaintiff was given to understand defendant was acting as agent and manager, does not constitute a final order under See. 6707, upon which error proceedings may be predicated.</p>

<p>CRIMINAL LAW — HOMICIDE.</p> <p>1. Indictment foe First Degree Murder Sufficiently Apprising Accused of Charge not Invalid for Nonprejudicial Omission or Surplusage.</p> <p>An indictment in tbe usual form for charging first degree murder, averring that accused with a certain pistol “unlawfully, purposely and of deliberate and premeditated malice did discharge * * * strike, penetrate and wound with the intent aforesaid * * * in and upon, (deceased) * * * one mortal wound * * * of which he died,”' but failing, after the words “intent aforesaid,” to contain the statement “then and there giving to him * * * with said leaden bullets aforesaid,” may be deficient in ‘perspicuity; but such omissions, not having-prejudiced the substantial rights of accused in failing to give him accurate information of the crime charged, does not under Sec. 7215 Rev. Stat. invalidate the indictment.</p> <p>2. Strike, Penetrate and Wound the Deceased a Wound Held Equivalent toi Giving a Wound.</p> <p>A phrase in an indictment for first degree murder charging that accused' “did strike, penetrate and wound (the deceased, naming him) * * * one mortal wound” with a pistol and leaden bullets, is equivalent to charging the giving of such wound and such indictment having stated, all the essentials to charging such crime, is valid under Sec. 7215 Rev.. Stat.</p> <p>3. “Alias” as Applied to Accused and Person Injured Construed.</p> <p>The term “alias” as applied to an accused person is distinguished from' that applied to the person wronged by accused in that greater strictness is required in identifying accused than is necessary in identifying the-victim.</p> <p>4. Indictment Charging Killing of a Person Designated by one Name Alias-. Another Sufficient if Deceased be Identified by the Alias Name.</p> <p>An indictment for homicide charging the killing of the deceased, giving, deceased one name alias another name, and repeating the alias name, without again referring to the former name is sufficient to support a conviction for the killing of deceased under the second mentioned name, particularly if the deceased person killed was identified by the alias: name and in the absence of evidence that deceased was ever known by-the former name.</p> <p>5. Technicalities not Permitted to Override Justice.</p> <p>The policy of criminal law and practice does not allow mere technicalities! to override justice but accused persons are guaranteed such perfect protection that none shall be punished for crime except upon fair' trial, including every step from accusation to verdict and judgment.</p> <p>[Syllabus approved by the court.]</p>

<p>BRIDGES — COUNTY COMMISSIONERS — DAMAGES.</p> <p>Bridge on Former State Road not within Sec. 845 Rev. Stat. and Commissioners not Liable for Negligence.</p> <p>The bridge on a highway which was formerly a state road, the control of which has been taken over by the board of commissioners of the county in which it is located, does not come within the meaning of Sec. 845 Rev. Stat. making such commissioners liable for negligence or carelessness in keeping in repair bridges established by such commissioners, and damages cannot be recovered for injuries resulting from such negligence or carelessness.</p>

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

Where a duty is imposed by statute to enclose exposed cog-wheels, shafting and the like, failure to comply with such requirement iff negligence per se. Ziehr v. Paper Go. 28 O. C. C. 342 (7 N. S. 144); Bresewski v. Brush & Broom Go. 28 O. C. C. 752 (8 N. S. 457), affirmed, Boyal Brush & Broom Go. v. Bresewske, 76 Ohio St. 593. The doctrine of assumed risks has no application where the alleged risk assumed is the violation of a penal statute.

<p>SALES.</p> <p>Deductions in Goods Sold, not Contemplated by Contract of Sale, may Justify a Repudiation of Contract by Seller.</p> <p>If merchandise is sold on contract whereby it is to be measured at point of shipment, such provision is a condition precedent, and if deductions; are made from the invoice price by the buyer for shrinkage as shown by measurements at some other place, such deductions may justify the seller to repudiate the whole contract when the shrinkage is only such as might be expected from the nature of the commodity.</p>

Where a claim is in dispute and the debtor sends ■ or gives the creditor a cheek for a less sum which he declares to be in full payment of all demands the retention thereof by the creditor constitutes an accord and satisfaction. 1 Cyc. 333; Ostrander v. Scott, 161 111. 339 [43 N. E. Rep. 1089]; Golden V. Illuminating Go. 114 Mich. 625 [72 N. W. Rep. 622]; Eames Yacuum Brahe Go. v. Prosser, 157 N. Y. 289 [51 N. E. Rep. 986]; Washington Nat. Gas Go. v. Johnson, 123 Pa.

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

<p>EVIDENCE — SALES.</p> <p>Evidence of Plea of Guilty to Charge of Adulteration of Goods not Sufficient .to Prove Breach of Contract of Sale.</p> <p>That goods sold on contract did not comply with the law of Pennsylvania as contract required, is not proven by showing Sling of affidavit in courts of that state charging adulteration of the goods in question and a plea of guilty to the same.</p>

<p>Appeal from Cosboeton common pleas court.</p> <p>Cited and commented upon the following authorities: Norton-v. Beaver, 5 Ohio 178; Miner v. Wallace, 10 Ohio 403; Tucker v. Shade,. 25 Ohio St. 355; Wuest v. James, 51 Ohio St. 230 [36 N. E. Rep. 832]; Smith v. Hogg, 52 Ohio St. 527 [40 N. E. Rep. 406]; Hutchinson v. Hutchinson, 15 Ohio 301; Miller v. Taylor, 29 Ohio St. 257; Ambrose v. Byrne, 61 Ohio St. 146 [55 N. E. Rep. 408]; Smith v. Hankins, 27' Ohio St. 371; Reynolds v. Henderson, 7 111. (2 Gilm.) 110; Graves v. Skeels, 6 Ind. 107; Calloway v. Ewbank, 27 Ky. (4 J. J. Marsh) 280; Mitchell v. Smith, 1 Litt. (Ky.) 243; Rowland v. Harbaugh, 5 Watts (Pa.) 365; Dougherty v. Hurt, 6 Humph. (Tenn.) 430; Conway v. Duncan, 28 Ohio St. 102; Jones v. Shields, 14 Ohio 359; Sidener v. Hawes, 37 Ohio St. 532; Faran v. Robinson, 17 Ohio St. 242 [93 Am. Dee. 617]; Carr v. Hull, 65- Ohio St. 394 [62 N. E. Rep. 439; 58 L. R. A. 641; 87 Am. St. Rep. 623]; Murphy v. Holbrook, 20 Ohio St. 137' [5 Am. Rep. 633]; Graham v. Simon, 76 Ohio St. 77 [81 N. E. Rep. 170]; Stockwéll v. .Coleman, 10 Ohio St. 33; Bobo v. Norton, 10 Ohio-St. 514; 12 Am. & Eng. Enc. Law 535, 541, 549; Woemer, Administration 1024, See. 435; Kemper v. Building & Loan Co. 18 Dec. 484 (5.. N. S. 403); Taylor v. Thorn, 29 Ohio St. 569; Kelly v. Duffy, 31 Ohio* St. 437; Muse v. Darrah, 2 Dec. Re. 604 (4 W. L. M. 149) ; Curtis v. Selby, 1 Circ. Dee. 25 (1 R. 40) ; Williams v. Donough, 65 Ohio St. 499 [63 N. El Rep. 84; 56 L. R. A. 766] ; Bamsdall v. Craighill. 9 Ohio 197; Conway v. Duncan, 28 Ohio St. 102; Yearly v. Long, 40 Ohio St. 27; Longley v. Stump, 9 Dee. Re. 234 (11 Bull. 247); Ludlow v. Johnson, 3 Ohio 553 [17 Am. Dec. 609]; Paine v. Skinner, 8 Ohio 159; Hartman v. Hunter, 56 Ohio St. 175 [46 N. E. Rep. 577]; Douglas v. Waddle, 8 Ohio 209; Bigelow v. Benker, 25 Ohio St. 542; Webster v. Bible Society, 50 Ohio St. 1 [33 N. E. Rep. 297].</p>

<p>-ACTIONS — DISMISSAL AND NONSUIT.</p> <p>No Dismissal of Action in Term Time Effected if Application be Withdrawn before Submission of Question to Court.</p> <p>An entry of dismissal of an action in term time, under Sec. 5314 Rev. Stat. must be made by the court, not by the clerk. Hence, no dismissal of an action, upon which rights may he predicated, if the application therefor be made in term time and withdrawn before action taken by the court.</p>

Angie S. Cramer, while crossing the street at Sixth and Vine, fell and was so severely injured as to cause a miscarriage.

<p>INTOXICATING LIQUORS.</p> <p>1. Traffic in Intoxicating Liquors in Small Quantities does not Relieve, from Tax.</p> <p>The purchase of a lew pints of beer at a time and the sale of it at a profit constitutes trafficking in intoxicating liquors as defined by the statute, and renders the seller liable to payment of the tax prescribed by Sec. 4364-9 Rev. Stat., on trafficking in spirituous, vinous, malt or other intoxicating liquors.</p> <p>2. Sales of Intoxicating Liquors in Connection with Illegal Business do not Relieve from Tax.</p> <p>The fact that the sales are made in connection with an illegal business, does not bar the state from enforcing collection of this tax.</p>

<p>CHARGE OF COURT — DAMAGES—JUDGMENTS—NEW TRIAL.</p> <p>1. Judgment may be had against one Defendant in Action against Several fob Wrong which Might have been Committed by one.</p> <p>In an action against several defendants to recover damages, in which it is alleged that the defendants conspired to commit an actionable wrong which is capable of being perpetrated by the joint act of several or by the independent act of one, judgment may be recovered against one defendant and in favor of another, and the failure of the court so to submit the case to the jury that they may find for one defendant and against the other is error.</p> <p>2. Party Liable in Damages fob Certification to a Statement not Known to Him to be True which was in Fact False.</p> <p>It is error to charge that “If the party signed certificate of incorporation certifying that there had been $150,000 paid in, not knowing whether it was true or false, when in fact it was untrue, and such signing was done without knowledge thereof as to its truth or falsity, such statement would be recklessly made, and party making it would be liable for damages resulting, the same as though he knew the statement to be untrue.”</p> <p>3. Measure of Damages for Fraudulent Sale of Stocks.</p> <p>It is error to charge as to a fraudulent sale of stock, that the measure of damages is the difference between the price paid and the value at the time of trial after the sale.</p> <p>4. New Trial Granted on Newly Discovered Evidence which Tends to Disprove Grounds of Action as Well as Impeach Plaintiff.</p> <p>On newly discovered evidence offered by defendant in support of a motion for a new trial, a new trial should be granted when such evidence is competent for the purpose of rebutting the evidence to sustain the plaintiff's action although incidentally tending to impeach the plaintiff, provided that its character be such that it ought to influence a different verdict.</p> <p>[Syllabus approved by tbe court.]</p>

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

<p>ARREST — ASSAULT AND BATTERY — JURY.</p> <p>1. Policeman, in Making an Arrest, may use Force to Repel Interference of Third Person.</p> <p>A policeman is a peace officer and is justified in arresting, without a warrant, one found violating a valid ordinance of a city, and in so doing he may use such force as is necessary inn making the arrest to defend himself from the attack of a third person, without notifying him of the cause of the arrest.</p> <p>2. It is a Question foe a Jury whether Force used by Policeman Amounts, to an Assault and Battery.</p> <p>Whether the force used by a policeman, while making an arrest in repelling the interference of a third person, amounts to an assault and battery is a question for the jury. .</p>

In the court below the wife was decreed $4.50 per week alimony. On appeal to the circuit court by the husband, the same decree was granted, and the case remanded to the common pleas for execution. On remand the common pleas committed the husband to jail for contempt of court for failing and refusing to pay the alimony decreed. The wife then brought an action before a justice of the peace on the bond for appeal to the circuit court for $40 unpaid alimony.

<p>EJECTMENT — EVIDENCE—FORCIBLE ENTRY AND DETAINER.</p> <p>1. Contract of Purchase Competent Evidence in Forcible Entry and Detainer before J. P.</p> <p>In forcible entry and detainer proceedings before a justice of the peace a contract of purchase of the premises in controversy is competent for the purpose of showing nature of defendant’s possession.</p> <p>2. Possession of Premises under Contract of Purchase Complete Defense to Forcible Entry and Detainer.</p> <p>Possession of premises as a purchaser under a contract of purchase is a complete defense to an action .for forcible detainer; if some conditions of the contract are not performed by the defendant, ejectment, and not forcible, entry and detainer, is the proper proceeding to determine plaintiff’s rights therein.</p>

<p>2. Taxation of Liquor Business Conducted Contrary to County Local Option is License Proscribed by Constitution.</p> <p>Taxation, as distinguished from license, can only be imposed upon a lawful business;. to-impose a tax upon the business of. trafficking in intoxicating liquors as provided by act 98 O. L. 99, the right to carry on the business where located and ownership of such right in the party assessed must exist. Imposing a tax in counties having voted dry under act 99 O. L. 35 upon an unlawful liquor business savors of license and is unconstitutional.</p> <p>3 State Precluded by Local Option Acts of County under Rose Law from Imposing Dow Tax upon Unlawful Liquor Business Therein.</p> <p>Counties are component parts of the state and unlike municipalities which are but creatures of the state, in which state laws are not superseded by municipal ordinances, the state having authorized its constituent parts to prohibit the liquor business therein under a general law, such as act 99 O. L. 35, and to make such business criminal, the prohibitory acts of such component part is binding upon the state precluding the imposition of a tax thereon under an earlier conflicting general law.</p> <p>4. Boat of Nonresident of State Unlawfully Impressed by Another in Liquor Business not Liable to Distraint for Liquor Tax.</p> <p>A boat owned by a citizen of another state surreptitiously brought into this state and, without his knowledge or consent, used by another in the unlawful business of trafficking in intoxicating liquors in a dry county thereof, is not subject to distraint for taxes imposed by Sec. 4 of act 83 O. L. 157 and Sec. 2 of amendatory act 98 O. L. 99 against the person unlawfully appropriating it to such illegal uses, to do otherwise would be contrary to the doctrine of due process of law.</p> <p>[Syllabus approved by the court.]</p>

<p>EVIDENCE — HOMICIDE—TRIAL.</p> <p>1. When Evidence in . Chief is Admitted after Case is Closed Defendant Must be Given Reasonable Time to Secure Evidence for Answer.</p> <p>To reopen a case in chief to let in new testimony after it is finally closed is within the discretion of the court, but it is prejudicial error to do so without giving the defendant a reasonable time to recall his witnesses to make answer to such new testimony.</p> <p>2. Killing within Degree Charged Must be Proven before Defendant can be Required to Establish Self-defense.</p> <p>The defendant in a homicide case cannot be required to establish his defense of self-defense until the- state has established that the killing by him was an unlawful killing within the degree of the crime charged, and it is error to charge otherwise.</p> <p>3. Circumstances being Such that Slayer Might Reasonably Believe Danger Imminent Sufficient to Justify Killing in Self-defense.</p> <p>The actual existence of imminent danger of death or great bodily harm to justify a homicide on the ground of self-defense, but if the slayer in the careful and proper use of his faculties, 5ona fide believes and has reasonable ground to believe that he is in such danger,, such defense may be sustained. •</p>

<p>CONTRACTS — PLEADING.</p> <p>Cash Items mat be Regarded and Pleaded as Book Account.</p> <p>The objection that cash items alone cannot, without special authority, be the subject of a book account is not well taken, where the action is on a contract and there is an averment in the petition that the indebtedness arose “for money laid out and expended and commissions in the purchase and sale of goods by the plaintiff for the defendant at his request.”</p>

<p>Error to Hamilton common pleas court.</p> <p>Cited and commented upon the following authorities: Republic Iron & Steel Go. v. Yanuszka, 16 O. F. D. 000 [166 Fed. Rep. 684]; Ziehr v. Paper Co. 28 O. C. C. 342 (7 N. S. 144) ; Laidlaw-Dunn-Gordon Co. v. Miller, 31 O. C. C. 559 (12 N. S. 246) ; Narramore v. Railway, 10 O. F. D. 7 [96 Fed. Rep. 298; 37 C. C. A. 499]; Pittsburgh & Lake Erie Ry. v. Blair, 5 Circ. Dec. 366 (11 R. 579), reversed,'no op., Blair v. Railway, 55 Ohio St. 689 (memorandum, 1 O. S. C. D. 549; 37 Bull. 59); New York, C. & St. L. Ry. v. Woods, 6 Circ. Dec. 350 (9 R. 322), affirmed, no op., Railtvay v. Woods, 58 Ohio St. 710; Stephens v. Railway, 86 Mo. 221; 1 Labatt, Mas. & Serv. 1237 Sec. 439; Van Duzen Gas & Gas. Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998].</p>

<p>BILLS, NOTES AND CHECKS — EVIDENCE.</p> <p>Time of Maturity and Manner of Payment of a Note are Material and Should be Properly Charged upon.</p> <p>The time of maturity of a note and the manner of its payments are material parts thereof, and it is error to refuse to charge the jury with reference to these matters where they constitute issues of fact which the jury must determine.</p>

<p>ATTACHMENT — NAMES—PLEADING—PROCESS.</p> <p>1. Attachment Lies against Nonresident Corporation in Civil Action nob Money.</p> <p>An action upon an account for the recovery of money is a civil action within the meaning of Sec. 11819 Gen. Code (R. S. 5521) upon which an attachment may issue against a nonresident corporation.</p> <p>2. Designation by Initials not Ground to Set Aside Attachment.</p> <p>Attachment will not be set aside upon the ground that defendant has been sued by the initials of his Christian and middle names in conformity to Sec. 11259 Gen. Code (R. S. 5010) if such designation is that commonly used by him in business transactions, was the one by which he was commonly known and indicates who is meant thereby; in such case it is not necessary for the verification of the petition to allege that plaintiff could not discover the true name of defendant', nor that the summons contains the phrase “real name unknown.”</p> <p>3. Description oe Articles Attached not Necessary as to Personalty.</p> <p>A description of attached property is not necessary under Sec. 11295 Gen. Code (R. S. 5047), providing for constructive service by publication where the property attached is personalty. Hence, notice to defendant that personal property belonging to him has been attached and return disclosing “forty ear loads of staves” levied upon are sufficient. Green v. Coit, 81 O. S. 280, distinguished.</p>

<p>ASSESSMENTS — LIMITATION OF ACTIONS.</p> <p>Certification of Assessment fob Sidewalks Requisite Act to Save Limitations.</p> <p>The particular act which saves an assessment from the two years’ statute’ of limitations fixed by Sec. 3906 Gen. Code (R. S. 2297) is its certification by the municipal corporation to the county auditor by virtue of Sec. 3865 Gen. Code (B. 1536-237).</p>

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

<p>MASTER AND SERVANT.</p> <p>1. Duty of Foreman to Inspect Scaffold Must be Proven.</p> <p>In an action by an employe for injuries resulting from falling of a scaffold,, the master can be held liable on the ground of negligence of his foreman only when it is proven that it was the duty of such foreman to inspect the scaffold in question.</p> <p>2. Bricklayer's Scaffold not an Appliance within Meaning of Sec. 4238o Rev.. Stat. (Gen. Code 6242).</p> <p>The provisions of Sec. 4238o Rev. Stat. (Gen. Code 6242) as to an employer’s, liability for injuries to an employe notwithstanding the negligence of a fellow-servant, do not apply to a temporary scaffold, erected on land of a third person by a carpenter for a brick layer to work on in building a. wall.</p>

<p>CONTRACTS — BILLS, NOTES AND CHECKS — PAYMENT.</p> <p>Payment not Available as a Defense under Answer Setting up Want op Consideration.</p> <p>Payment as a defense to an action on a note cannot be proven under an. answer alleging only want of consideration.</p>

<p>ADVANCEMENTS — WILLS.</p> <p>An Advancement to Devisee may be a Charge upon Devised Lands.</p> <p>A loan by a father to a son, subsequent to the execution by the father of his will, which is evidenced as follows “Received of G. G. $900 to be taken out of his estate” signed T. G. is to be charged in equity upon the real estate devised to such son by the will, and an executor is not entitled to a personal judgment against such son in an action to recover such loan.</p>

The defendant in error recovered a verdict of $5,000 on account of the loss of a hand in machinery while in the employ of the Unnewehr Company, but the verdict was reduced by a remittitur to $3,500.

The defendant in error recovered a judgment below of $2,955 on account of injuries sustained in alighting from a street car.

<p>ATTORNEY.</p> <p>Attorney Has no Lien on Money Agreed upon in Settlement op Claim.</p> <p>A right of action for services rendered does not exist in favor of an attorney and against one from whom he had sought to recover damages for- personal injuries for a client when a compromise settlement had been agreed upon direct and money paid to client.</p>

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

<p>Cited and commented upon the following authorities: Hill v. Henry, 17 Ohio 9; Fisher v. Mossman, 11 Ohio St. 42; Glenn, In re Est., 23 O. C. C. 397 (3 N. S. 608) ; McCreight, In re, 9 Dec. 450 (6 N. P. 479) ; Todhunter v. Stewart, 39 Ohio St. 181; Rockel, Prob. Prae. 176, 187, Secs. 211, 226; Woemer, Administration 189, 190, 568, Secs. 267, 268; Mallory v. Raihvay, 53 Kas. 557 [36 Pac. Rep. 1059]; Rierdon, In re Est., 5 Dee. 606 (5 N. P. 516) ; 18 Cyc. 151, 152, 394; Hubbard., v. Wood, 15 N. H. 74; Mathes v. Rennet, 21 N. H. 188.</p>

<p>CORPORATIONS — PLEADING—QUO WARRANTO.</p> <p>1. Motion Lies to Strike Redundant and Irrelevant Matter from Petition in Quo Warranto.</p> <p>A motion will lie in an action for quo warranto to strike from the petition redundant and irrelevant matter which is prejudicial to the defendant.</p> <p>"2. In Quo Warranto against Corporation Pleading Generally Usurpation and Misuser of Franchise Sufficient.</p> <p>A petition in an action for quo warranto against a corporation is sufficient which charges the defendant, in general terms, with usurping and misusing corporate privileges and franchises, and with exercising powers and privileges inhibited by law, without specifying in detail the particulars in which the corporation is usurping, misusing and exercising such powers, privileges and franchises.</p> <p>3. Specification of Pertinent Particulars Constituting Usurpation of Corporate Rights not Prejudicial.</p> <p>Where the petition in an action of qiio warranto against a corporation, after charging the defendant in general terms with usurping and misusing corporate powers and franchises, and. with exercising privileges and franchises inhibited by law, also proceeds to speeify in detail some of the particulars of such usurpation and misuser, such specification of particulars, if pertinent to the inquiry, is not prejudicial and will not be stricken out on motion.</p> <p>4. Unlawful Trust Formed by Corporation and Officers not Avoided by Dissolution of Old and Creation of New Trust Continuing Unlawful Conspiracy.</p> <p>When an unlawful trust or conspiracy against trade has been formed by a corporation and its officers, stockholders and agents, the trust or conspiracy does not lose its identity by the action of the participants in dissolving or abandoning the corporation and transferring its property and business to a new corporation organized by them for the purpose-of continuing the unlawful trust or conspiracy; and if the new company so organized continues the trust or conspiracy already formed, it and its participating officers, stockholders and agents must answer for the previous acts of the old company and its officers, stockholders and. agents committed in furtherance of the common design.</p> <p>6. In Quo Warranto Inquiry by State may be Made as to All Acts of Participants Subsequent to Formation of Trust Proscribed.</p> <p>In an action of quo warranto charging a corporation with forming and being a party to a trust and conspiracy against trade in violation of the-Ohio antitrust act (93 O. L. 143), the state may inquire as to all acts committed by any participant from the time it is alleged that the trust or conspiracy was formed.</p> <p>6. Trust Formable by Corporate Officers, etc., Who may be Counted in. Making Parties.</p> <p>A corporation and its own officers, stockholders and agents, without the-participation of others, may be guilty of forming a trust and conspiracy against trade in violation of the Ohio antitrust act (93 O. L.-143), and all, including the corporation, may be counted in making up the two. or more necessary parties.</p> <p>[Syllabus by the court.]</p>

<p>DAMAGES — EXPLOSIVES—EVIDENCE—MASTER AND SERVANT-TRIAL.</p> <p>1. No Right Exists for Person to Store Dynamite Where and How he Chooses on his Own Property if Property or Ltves of Others will be Endangered.</p> <p>A railroad company does not have an unquestionable right to store its dynamite cartridges wherever and however it pleases upon its own property; such dangerous substance must be so taken care of that it will not injure the property and lives of others.</p> <p>2. Not Error to Permit Widow and Children to Sit within has when They</p> <p>are Beneficiaries of the Case.</p> <p>It is within the discretion of trial court to permit a widow and children, beneficiaries of the trust represented by the nominal plaintiff, to sit within the bar and in view of the jury during trial, and overruling a request to exclude them is not error.</p> <p>3. Proposition Once Overruled by Court may Sometimes be Properly Renewed.</p> <p>There may be cases when counsel may properly renew some proposition to the court even after it has ruled against him, if he thinks he can throw new light upon the matter, and discussion before the jury as to the propriety of certain argument is not necessarily misconduct.</p> <p>[Syllabus approved by the court.]</p>

<p>EVIDENCE.</p> <p>1. A Copy of Entries not Admissible when not Identified by Persons Keeping both Originals and Entries.</p> <p>An impression book in which are copied bills of lumber which were drawn off from a yard book is not competent evidence as a book of original entries when offered in evidence and identified only by the person keeping it but who took no part in keeping the yard book.</p> <p>2. Copy of Instrument, Original of Which is in Hands of Adverse Party not Admissible unlfss Notice Served to Produce Original.</p> <p>An impression copy of an instrument sent to the opposite party in a case is not competent evidence when no notice has been served upon such party to produce the original, and the fact that such party had turned such original over to a,third person connected with him in the transaction does not excuse the failure to serve such notice.</p> <p>[Syllabus approved by the court.]</p>

<p>NEGLIGENCE.</p> <p>An Intelligent Intervening Agency which Could not be Anticipated may Relieve Otherwise Negligent Conduct.</p> <p>A railroad company is not liable for an injury sustained by a person falling upon a trolley pole which had been left by servants of the company upon a grass plot near the sidewalk and was subsequently carried by children to an adjoining field and then returned to the street, and by a third person thrown upon the sidewalk where the injury complained of was sustained.</p> <p>[Syllabus approved by the court.]</p>

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

<p>Error to Guernsey common pleas court.</p> <p>Cited and commented upon the following- authorities: Yunk&r v. Sandusky Co. (Comrs.) 31 O. C. C. 552 (11 N. S. 527) ; Morgan Co. (Comrs.) v. Transfer & Storage Co. 75 Ohio St. 244 [79 N. E. Rep. 237]; Ebert v. Pickaway Co. (Comrs.) 75 Ohio St. 474 [80 N. E. Rep. 5]; Salt Creek Val. Tpk. Co. v. Parks, 50 Ohio St. 568 [35 N. E. Rep. 304; 28 L. R. A. 769i]; State v. Wood Co. (Treas.) 17 Ohio 184; 11 Enc. Law (2 ed.) 353, 354, 355, 356; Faucher v. Tutewiller, 76 111. 194; Palatka & I. Ry. v. State, 23 Fla. 546 [3 So. Rep. 158; 11 Am. St. Rep. 395}; 1 Story, Construction (3 ed.) See. 454; Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1 [8 L. Ed. 25] ; 16 Cyc. 561; Hardin Co. (Comrs.) v. Coffman, 60 Ohio St. 527 [54 N. E. Rep. 1054; 48 L. R. A. 455i]; Hardin Co. (Comrs.) v. Coffman, 10 Circ. Dec. 91 (18 R. 254) ; Alexander v. Brady, 61 Ohio St. 174 [55 N. E. Rep. 173]; Low v. Leichty, 25 O. C. C.. 240 (1 N. S. 431) ; Mahoning Co. (Comrs.) v. Railway, 45 Ohio St. 401 [15 N. E. Rep. 468]; Burnell v. Traction Co. 19 Dec. 112 (7 N. S. 136).</p>

Tie plaintiff below recovered a verdict for $250 against the automobile company on account of injuries from being struck by one of their autos.

The plaintiff was thrown from his seat on a wagon to the street in a collision with an interurban ear. He complained of severe injury to his spine and nervous shock. The jury gave him $4,500, but the trial judge reduced the verdict to $3,500.

In February, 1904, the Coshocton Glass Company was a corporation under the laws of Ohio, engaged in manufacturing glass bottles and wares, with its office at Coshocton, Ohio. Its capital stock was $60,000 of which $35,000 was common stock and $25,000 was preferred.

■This case was tried in the court of common pleas upon the issues made in the pleadings and evidence, resulting in a finding and judgment in favor of the plaintiff, the Coshocton Glass Company. Appeal was taken to this court, and was submitted to the court upon the pleadings and evidence.

<p>CHARGE TO JURY — RAILROADS—TRIAL—NEGLIGENCE.</p> <p>1. Knowledge of One Joint User of Wire Poles does not Excuse Other ofDuty of Care Toward Employes of Other.</p> <p>When a telephone company by agreement uses the high-tension wire poles of an electric railway, the fact that the telephone company knew that a dangerous current of electricity was leaking from the railroad wire-through the insulators into the poles does not relieve the railway company from its obligation of care to an employe of the telephone companj” who was injured by such negligent leakage.</p> <p>2. Instruction Requested Must State Law Correctly.</p> <p>A request to charge before argument must staté the law applicable to the case without modification or explanation, and it is not error to refuse-one which does not do so.</p> <p>3. The Words “Might Be” in an Instruction may be Ambiguous.</p> <p>The words “might he” in a request to charge in substance that if employe of telephone company using poles of railroad company, knew or by the exercise of ordinary care “should have known that the dispatcher’s wires might he charged with a dangerous current of electricity,” etc., are too-uncertain and ambiguous and it is not error to refuse such charge.</p> <p>4. Not Error for Court to Voluntarily State Correct Legal Proposition to-Jury before Argument.</p> <p>It is not error for the court after refusing to charge an incorrect instruction before argument, to voluntarily state a correct proposition of law covering the point attempted in the instruction requested.</p>

<p>Error to Franklin common pleas court.</p> <p>Cited and commented upon the following authorities: Mutual Life Ins. Go. v. State, 79 Ohio St. 305 [87 N. E. Rep. 259]; 1 Beach, Contracts Sec. 59; 1 Addison, Contracts Sec. 22; 1 Parsons, Contracts (9 ed.) p. 483; Maclay v. Harvey, 90 111. 525 [32 Am. Rep. 35]; 2 Kents, Commentaries p. 447; Johnson v. Sharp, 31 Ohio St. 611 [27 Am. Rep. 529]; 22 Am. & Eng. Enc. Law 1057; United States v. Jackson, 29 Fed. Rep. 503; United States v. Jones, 31 Fed. Rep. 725; Taylor v. Insurance Go. 50 U. S. (9 Iiow.) 390 [13 L. Ed. 186]; Palm v. Insurance Go. 20 Ohio 529; Commomvealth v. Wood, 142 Mass. 459 [8 N. E. Rep. 432] • Commonwealth v. Taylor, 105 Mass. 172; Burton v. United States, 202 U. S. 344 [26 Sup. Ct. Rep. 688; 50 L. Ed. 1057]; McDonald v. Bank, 174 U. S. 610 [19 Sup. Ct. Rep. 787; 43 L. Ed. 1106]; Kennedy v. Kennedy Corp. 32 Misc. 480 [66 N. Y. Supp. 225]; Primean v. Life Association, 77 Hun, 418 [28 N. Y. Supp. 794]; McCluskey v. Life Association, 77 Hun. 556 [28 N. Y. Supp. 931]; Patrick v. Bowman, 149 U. S. 411 [13 Sup. Ct. Rep. 811; 37 L. Ed. 790].</p>

<p>LICENSES.</p> <p>•Ordinance Discriminating Between Vehicles of Same Class is Invalid and Excess Charged may be Recovered.</p> <p>An ordinance providing that a license fee of $25 shall he paid by each wagon hauling sand, fire-clay, safes, engines, boilers or logs, while other wagons of the same class pay only $10, is unreasonable and the excess collected may be recovered.</p>

<p>Error to Erie common pleas court.</p> <p>Cited and commented upon the following authorities: Brown v.. Mortgage Go. 97 Tex. 599 [80 S. W. Rep. 985; 67 L. R. A. 195]; Wildee v. McKee, 111 Pa. St. 335 [2 Atl. Rep. 108; 56 Am. Rep. 271]; Doremus v. Hennessy, 62 111. App. 391; Hood v. Palm, 8 Pa. St. 237; Doremusv. Hennessy, 176 111. 608 [52 N. E. Rep. 924; 43 L. R. A. 797; 68 Am. St. Rep. 203]; Graham v. Railway, 47 La. Ann. 214 [16 So. Rep. 806;. 27 L. R. A. 416; 49 Am. St. Rep. 366]; Walker v. Cronin, 107 Mass. 555; Ertz v. Produce Exchange, 79 Minn. 140 [81 N. W. Rep. 737; 48-L. R. A. 90; 79 Am. St. Rep. 433] ; Delz v. Winfree, 80 Tex. 400 [16 S. W. Rep. Ill; 26 Am. St. Rep. 755]; Smith v. Nippert, 76 Wis. Sefli N. W. Rep. 846; 20 Am. St. Rep. 26]; Van Horn v. Van Horn, 52’ N. J. Law 284 [20 Atl. Rep. 485; 10 L. R. A. 184]; Jones v. Baker, 7 Cow. (N. T.) 445; 8 Cyc. Law & Proc. 615, 647, 650, 661; McBride v.. Gould, 16 Dec. 241; United States v. Lancaster, 44 Fed. Rep. 896 [10 L. R. A. 333]; McDowell v. Rissell, 37 Pa. St. 164; People v. Childs,. 127 Cal. 363 [59 Pac. Rep. 768]; 3 Ene. of Ev. 407, 435; 10 Am. Dig-1099, 1095; Laning Cyc. Dig. Supp. (1907) col. 103; 2 Laning Cyc. Dig-col. 3342; 6 Am. & Eng. Enc. of Law (2 ed.) 830, 832,, 872,, 875, 877;, 5 Current Law 617.</p>

The petition in this case alleges that plaintiff was injured on August 9, 1905, while placing a new knife upon the shaft of a granulator, and that while in the performance of his duties the granulator was started in motion through the negligence of the foreman, without any warning being given, and that as a result he suffered injuries for which he asks judgment.