Volume 22 — Ohio Circuit Court Decisions

<p>CRIMINAL LAW — INTOXICATING LIQUORS— WITNESSES. '</p> <p>1. Bulk or Weight of Exhibits no Excuse for Elimination from Record on Review.</p> <p>Mere bulk or weight of exhibits offered in evidence on the trial of a criminal case is no excuse for failure to attach to a bill of exceptions or mark for identification on review on the weight of evidence.</p> <p>2. Failure to Sign Certificate of Record of Local Option Election Invalidates it as Evidence.</p> <p>Failure of the county clerk to sign his certificate of the record of a county local option election showing that the county had voted dry, as required by Sec. 1 of act 99 O. L. 35, constitutes a defect in the certificate invalidating it as evidence; but the contention that the county had in fact voted dry may be sustained by other evidence.</p> <p>3. Waiver of Legality of Objection by Giving Wrong Reason for Sustaining Thereof.</p> <p>Counsel for accused having given a wrong reason for sustaining an objection to the introduction of evidence offered waives all other reasons therefor whether valid or invalid.</p> <p>4. Evidence of Detectives in Liquor Prosecution Having no Pecuniary Interest on Conviction Governed by Same Rules as Other Witnesses.</p> <p>Evidence of detectives in a prosecution for violation of the Rose county local option law is governed by the same rules and entitled to the credence to which other witnesses are entitled under like conditions, especially in cases where payment of their compensation,-is not dependent on conviction of accused.</p> <p>5. Accused Saloon Keeper’s Testimony Viewed with Caution in Prosecution for Violation of Rose Law.</p> <p>Testimony of accused in a prosecution for violating the Rose county local option law, he having been a keeper of a saloon prior to a local option election and having conducted á business-in all respects the same after the county in which he is situated votes dry, may be properly viewed with caution and measured by his bias in his -own favor.</p> <p>[Syllabus approved by the court.]</p>

<p>LIENS.</p> <p>Legality of Mechanic’s Lien Must Appear Affirmatively upon It.</p> <p>A mechanic’s lien which does not show affirmatively, either in the statement, contract, or affidavit that the last “labor was done” or “material furnished” within four months from the date of filing is invalid, and the omission cannot be supplied by parcl.</p>

<p>Error to Van Wert common pleas court.</p>

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

<p>EVIDENCE — BROKERS.</p> <p>1. Incompetent Hearsay Evidence Admitted without Objection has; some Probative Force.</p> <p>Incompetent hearsay evidence, when admitted without objection,, has some probative force.</p> <p>2. Real Estate Broker Required to Show that Purchaser was. Induced to Apply to Owner Through Means Employed by Broker.</p> <p>To entitle a real estate broker to recover commissions he must show that the purchaser was induced to apply to the owner through means employed by the broker. It is not indispensable, however, that" the purchaser be introduced to the owner by the. broker, or that the broker be personally acquainted with the purchaser, or that the broker at the time have knowledge of. the negotiations between the owner and the purchaser.</p> <p>[Syllabus by the court.]</p>

<p>CONTRACTS — DAMAGES.</p> <p>1. Whether a- Penalty or Liquidated Damages were Intended will be Determined from Whole Contract and Circumstances at Time of Contract.</p> <p>in determining whether a stipulation in a contract is a penalty or liquidated damages, the court will consider it along with the other provisions and general scope 'and subject-matter of the contract and the circumstances from the standpoint of the parties at the time of the contract, and not ex post facto, and from these determine whether the parties intended to fix a fair and just amount for the actual damages likely to arise or an arbitrary amount as mere penalty to secure performance.</p> <p>2. One Thousand Seven Hundred and Fifty Dollars Liquidated Damage in Five Year Contract of Employment, Valid.</p> <p>In a contract of employment entered into by a mercantile establishment with a person for general manager for term of five years at $1,800 per year, a.provision for liquidated damage in sum of $1,750 should that person be discharged within twenty-five months- is a reasonable adjustment of what would be considered by parties at time of contract as the actual damages that might be contemplated, and will be upheld as' liquidated damage.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR — INTOXICATING LIQUORS — NEW TRIAL.</p> <p>1. In Liquor Prosecutions Complaint Need not Allege that Case is not One of the Exceptions.</p> <p>In prosecution for violation of the county local option law making sale of intoxicating liquors unlawful, it is not necessary that the complaint allege that the alleged sale was not one of the exceptions mentioned in that statute, nor is it necessary to prove it; such matter is defense and must be established as such.</p> <p>2. Continuance of Trial over Thirty Days under Sec. 17 of 98 O. L. 12 within Discretion of Trial Court.</p> <p>In a prosecution which comes within the principles of Sec. 17 of 98 O. L. 12, Gen. Code 13243 (R. S. 4364-30zd), under the last part -of said section a discretion is given the trial judge to continue the case beyond the thirtieth day, and so doing will not deprive such court of jurisdiction.</p> <p>3. To Bring Sale of Liqtíor within Exceptions, Sale Must be Made in Good Faith.</p> <p>In the sale of liquor in “dry” territory to bring the transaction within the exception in the criminal statute making sale for pharmaceutical purposes lawful the sale must have been made in good faith by the seller and merely keeping a book with a statement that it is used for pharmaceutical purposes, which purchaser signs does not relieve the requirement of good faith.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Cuyahoga common pleas court.</p> <p>Cited and commented upon the following authorities: Fraternal Mystic Circle v. State, 61 Ohio St. 628 [48 N. E. Rep. 940; 76 Am. St. Rep. 446]; Cincinnati Vollcsblatt Co. v. Hoff-' meister, 62 Ohio St. 189 [56 N. E. Rep. 1033; 48 L. R. A. 732; 78 Am. St. Rep. 707]; Freon v. Carriage Co. 42 Ohio St. 30 [51 Am. Rep. 794]; State v. Carpenter, 51 Ohio St. 83 [37 N. E. Rep. 261; 46 Am. St. Rep. 556],</p>

<p>TRUSTS AND TRUSTEES.</p> <p>Instrument Transferrins Money to Trustee for Distribution after Donor’s Death, Providing for Appointment by Probate Court of Successor Upon Death of Trustee and Reserving Right to Revoke such Appointment, Makes Grantor Trustee Upon Delivery of Fund, Passes Present Title to Trustee, and no Revocation having been Effected, Right of Possession Tests in Beneficiaries at Donor’s Death.</p> <p>On October 14, 1905, J W being seriously ill, transferred by writing the sum of $6,200 to one M R as trustee to receive and hold and after the donor’s death, to distribute the same to designated beneficiaries therein named, in various amounts. The written instrument provided, that, if M R, the nominated trustee, should die, that the probate judge should nominate his successor, but reserved the right to “revoke this appointment at anytime” during his life. J W drew a check payable to M R, trustee for the amount, and said trustee deposited the same in bank in the name of himself as trustee for J W. Action by J W’s administrator to recover from M R’s executor the amount named as part of J W’s estate. The beneficiaries named in the instrument, by interpleader, also seek to maintain their respective rights to the fund: Held, (1) Under the terms of the instrument M R became the trustee for the beneficiaries therein named, and not the agent or trustee of •the. donor. (2) The written instrument was a valid declaration of trust and passed a present legal title to the trustee, under a trust to deliver the amounts named to the designated beneficiaries after the death of the donor. (3) The requirements and formalities of testamentary disposition are not necessary where the corpus of the property is transferred to a trustee by an instrument containing plain and unequivocal declarations of the trust and its uses, although its ultimate distribution is not to be made until after the death of the donor. (4) The power of revocation in the instrument is construed to - mean a veto upon the appointment that might be made by the probate judge; but should it be construed as a power reserved by the donor to revoke the trust, inasmuch as the power was not exercised in the life of the donor, the trust remained absolute, and at the death of the donor, the property and the right of possession passed to the beneficiaries named. •</p> <p>[Syllabus by the court.]</p>

<p>AMERCEMENT — BAILMENTS—SHERIFFS.</p> <p>1. Sheriff's Liability fob Money Lost in Official Capacity is that op Bailee.</p> <p>A sheriff who receives money in his official capacity is a bailee, and his liability for the loss thereof is to be determined by the law of bailment.</p> <p>2. Sheriff cannot be Amerced fob Money Lost in Bank Failure.</p> <p>A sheriff having received a sum of money from the sale of lands' made under an order of court in a partition case, and pending an order of distribution, deposited the money in a local bank of good standing and credit, in a separate account to his credit as sheriff and not mingled with his private funds, is not liable to amercement for the money because before the fund was paid out the bank failed, and no negligence or bad faith being charged or shown on the part of the sheriff.</p> <p>[Syllabus by the court.]</p>

<p>INTOXICATING LIQUORS.</p> <p>Aiken Law Tax Lien does not Attach to Boat Surreptitiously: Employed by Lessee to Being Liquor in Rose Law County.</p> <p>H, a resident of the state of Pennsylvania, was the owner of a. boat which he leased to D to be used exclusively on the waters of Erie bay within said state. D without the knowledge or consent of H brought said boat within the jurisdiction of a county-in Ohio which had voted “dry” under the provisions of 99 Q-Xi. 35 (Gen. Code 6108 et seq.), known as the “Rose Law” where he used it for the sale of intoxicating liquor. Held, Such boat cannot be levied upon and sold under the provisions of Gen. Code 6078 (R. S. 4364-12) to pay the tax assessed against D.</p> <p>[Syllabus by the court.]</p>

<p>APPEALS — CONSTITUTIONAL LAW — RAILROADS.</p> <p>Statute Taxing Attorney Fees on Appeal in Fire Damage Cases against Railroads is Unconstitutional.</p> <p>Gen. Code 8973 (R. S. 3365-7) which' provides for the taxing of an attorney fee where an appeal is taken in certain actions for damages on account of fires caused by railroads is unconstitutional and void.</p> <p>[Syllabus by the court.]</p>

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

<p>Error to Hamilton common pleas court.</p> <p>As to tbe capacity of the grantor. Kime v. Addlesperger, 24 O. C. C. 397 (2 N. S. 270); Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43).</p> <p>As to the effect of the hemiplegia. Delaplain v. Grubb, 44 W. Va. 612 [30 S. E. Rep. 201; 67 Am. St. Rep. 788]; Meyer v. Jacobs, 123 Fed. Rep. 900; Bowdoin. College v. Merritt, 75 Fed. Rep. 480; Ralston v. Turpin, 129 U. S. 663 [32 L. Ed. 747] ; Sawyer v. White, 122 Fed. Rep. 223; Lore v. Truman, 1 Dec. Re. 510 (10 W. L. J. 250); Kime v. Addlesperger, 24 O. C. C. 397 (2 N. S. 270) ; Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43) ; 13 Cyc. 573; Taphorn v. Taphorn, 18 Dec. 743 (6 N. S. 579) ; Willis v. Baker, 75 Ohio St. 291 [79 N. E. Rep. 466]; Commercial Nat. Bank v. Wheelock, 52 Ohio St. 534 [40 N. E. Rep. 636; 49 Am. St. Rep. 738]; Stewart v. Gordon, 60 Ohio St. 170- [53 N. E. Rep. 797]; Ford v. Osborne, 45 Ohio St. 1 [12 N. E. Rep. 451; 4 Am. St. Rep. 507] ; Potter v. Potter, 27 Ohio St. 84; Bigelow, Fraud pp. 357, 358, 359; Clark v. Clark, 174 Pa. 309 [34 Atl. Rep. 610] ; Saufley v. Jackson, 16 Tex. 579; 2 Pomeroy, Eq. Jurisp. (3 ed.) Sec. 962; Burwell v. Burwell, 103 Va. 314 [49 S. E. Rep. 68]; Orr v. Pennington, 93 Va. 268 [24 S. E. Rep. 928]; Mackall x. Mackall, 135 U. S. 167 [10 Sup. Gt. Rep. 705; 34 L. Ed. 84]; Towson v. Moore, 173 U. S. 17 [19 Sup. Ct. Rep. 332; 43 L. Ed. 597]; Oliphant v. Liversidge, 142 111. 160 [30 1!. E. Rep. 334]; Prescott v. Johnson, 91'Minn. 273 [97 N. W. Rep. 891]; Wessell x. Rathjohn, 89 N. C. 377 [45 Am. Rep. 696] ; Yeakel x. McAtee, 156 Pa. St. 600 [27 Atl. Rep. 277] ; Haynes v. Harriman, 117 Wis. 132 [92 N. W. Rep. 1100]; Vance v. Davis, 118 Wis. 548 [95 N. W. Rep. 939]; Truman x. Lore, 14 Ohio St. 144; Wise v. Foote, 81 Ky. 10; Bewell x. Warden, 24 O. C. C 344 (4 N. S. 545); Hammond x. Welton, 106 Mich. 244 [64 N. W. Rep. 25]; Francis x. Wilkinson, 147 111. 370 [35 N. E. Rep. 150] ; Sturtevant ■x. Sturtevant, 116 111. 340 [6 N. E. Rep. 428] ; Hamilton x. Smith, 57 Iowa 15 [10 N. W. Rep. 276; 42 Am. Rep. 39]; Howe x. Howe, 99 Mass. 88; Taylor x. Taylor, 41 N. G. 26 [51 Am. Dec. 412]; Likins x. Likins, 122 Mo. 279 [27 S. W. Rep. 531] ; Millican x. Millican, 24 Tex. 426; Robinson x. Allbee, 4 Circ. Dec. 185 (12 R. 663).</p>

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

<p>Error to Cuyahoga common pleas court:</p> <p>Cited and commented upon the following authorities. Toledo v. Marlow, 28 O. C. C. 298 (8 N. S. 121); Atlantic & Gt. W. By. v. Campbell, 4 Ohio St. 583 [64 Am. Dec. 607]; Westerman v. Westerman, 25 Ohio St. 500.</p>

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

<p>MUNICIPAL CORPORATIONS — POLICE.</p> <p>1. A Policeman is an “Officer” Under the Laws of Ohio. _</p> <p>A duly appointed patrolman of the police department of a city is an officer within the meaning of the laws of Ohio.</p> <p>2. Salary of Policeman Cannot be Increased or Diminished.</p> <p>Under Sec. 126 Mun. Code (Gen. Code 4213) a city council has no power to increase or diminish the salary of a police officer appointed under the civil service provision of such code, during the term for which he was appointed, which is during ■ good behavior.</p>

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

<p>Error to Lucas common pleas court.</p> <p>Cited and commented upon tbe following authorities: Rockel’s, Prob. Prae. Sec. 471; Miller v. Stark, 61 Ohio St. 413 [56 N. E. Rep. 11]; Jelke v. Goldsmith, 52 Ohio St. 499 [40 N. E. Rep. 167; 49 Am. St. Rep. 730] ; Broadiuell v. Banks, 134 Fed. Rep. 470; Foster v. Wise, 46 Ohio St. 20 [16 N. E. Rep. 687; 15 Am. St. Rep. 542] ; Woerner, Law of Admrs. Sec. 177'; Higgins’ Estate, In re, 15 Mont. 474 [39 Pac. Rep. 506; 28 L. R. A. 116] ; Newcomb v. Williams, 43 Mass. (9 Mete.) 525; Crocker v. Dillon, 133 Mass. 91; White v. Ditson, 140 Mass. 351 [4 N. E. Rep. 606; 54 Am. Rep. 473]; Hood, Estate of, 98 N. Y. 363; Wall v. Bissell, 125 U. S. 382 [8 Sup. Ct. Rep. 979; 31 L. Ed. 772]; Everson v. Pitney, 40 N. J. Eq. 539 [5 Atl. Rep. 95]; Hood v. Hood, 85 N. Y. 561; Williams v. Cushing, 34 Me. 370; Sanborn’s Estate, In re, 109 Mich. 191 [67 N. W. Rep. 128]; Crawford Estate, In re, 11 Circ. Dec. 605 (21 R. 554).</p>

<p>NEGLIGENCE — SIDEWALKS.</p> <p>1. Not Ordinary Care to Walk over a Sidewalk Known to be Defective and Unsafe when it can Easily be Avoided.</p> <p>A person who in the daytime voluntarily attempts to pass over a sidewalk in a oity which he knows from any cause to he dangerously defective and which he might easily have avoided, cannot he regarded as in the exercise of -ordinary care or prudence, and therefore cannot maintain an action against a municipality for damages sustained on account of any such known defect, even if the city was guilty of negligence in allowing such defect to exist.</p> <p>2. Erroneous Charge as to Contributory Negligence.</p> <p>A charge that if an ordinarily prudent man would have attempted to pass over a walk alleged to he dangerously defective, with knowledge of its condition, and if the plaintiff in attempting to do so exercised the care which an ordinarily prudent person would have exercised in the condition which you find this walk was in at that time, he was not guilty of negligence in attempting to use the walk and is entitled to recover, held error.</p> <p>[Syllabus approved hy thq court.] .</p>

<p>RAILROADS.</p> <p>Purchase by a Competing Company oe an Uncompleted Railway Invalid.</p> <p>Gen. Code 8807, providing when one railroad may aid, lease or purchase another and Gen. Code 9054 providing when a railroad company may sell its roadbed, when read and construed together prohibit the acquiring by a railway company of a parallel and naturally competing line which is under construction but not yet completed.</p>

<p>ACTIONS — COUNTIES—OFFICE AND OFFICER.</p> <p>Fees Illegally Paid to County Officer Recoverable.</p> <p>An action will lie on hehalf of the state under Gen. Code 2921 for recovery from a county officer of moneys paid to him as fees for which there was no authority of law. State v. Fronizer, 77 Ohio St., 7V distinguished.</p>

<p>ASSESSMENTS.</p> <p>Property Provided with Local Drainage Facilities by Construction. or One Sewer is Not Subject to Assessment por Second Sewer.</p> <p>Where a sewer has been constructed which provides certain property with facilities for local drainage and the property has. been assessed therefor, the fact that the property owner has-not availed himself of the benefit of the sewer by connecting his property therewith, vdoes not warrant the levying of a second assessment against the same property for a second sewer, so located that the property might be connected with it also for purposes of local drainage.</p>

<p>EVIDENCE — NEGLIGENCE—PLEADINGS—WITNESSES.</p> <p>1. Negligence Need not be Charged in Terms when Facts are Alleged which Show Prima Facie Negligence.</p> <p>A petition which alleges specific facts making a prima facie case of negligence is not demurrable because negligence is not in terms alleged.</p> <p>2. Derailment of Passenger Car under Res Ipsa Loquitur Held Presumption of Negligence.</p> <p>The derailment of a passenger car directly resulting in injury to a passenger on such oar, under the principle of res ipsa loquitur, raises a presumption of negligence.</p> <p>3. An Alleged Permanent Scar Cannot be Proven to be of a Cancerous Nature.</p> <p>Under mention in a petition of an injury as a permanent scar it is error to allow proof that such scar might be of a cancerous and malignant nature; the petition should set out specifically the nature of the injuries relied upon as damage.</p> <p>4. Amendment of Petition after Evidence against Objection by Inserting Additional Elements of Damage, is Abuse of Discretion.</p> <p>After close of all the evidence and while instructions are being given, it is an abuse of the trial court’s discretion to grant leave to amend the petition so as to insert additional elements of damage to conform to proof which had been admitted against objection.</p> <p>5. Facts Assumed in Hypothetical Questions Must First be Established in Case.</p> <p>Hypothetical questions addressed to experts are improper when they assume facts as to which there is no evidence.</p> <p>6. X-Ray Skiographs Must be Identified before Admissible as Evidence.</p> <p>An X-Ray skiograph claimed to be that of plaintiff should be identified as such before it can properly be admitted as evidence.</p> <p>7. Testimony of Doctor as to Statements of Subjective Conditions, Pain, etc., Incompetent.</p> <p>The testimony of expert witnesses as to statements made by plaintiff during examination of plaintiff to qualify such experts to testify of subjective conditions, pain, etc., which would not be disclosed by usual observations or some other objective that a doctor might make is incompetent.</p> <p>[Syllabus, approved by the court.]</p>

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

<p>BOYCOTT BY LABOR UNIONS — INJUNCTION TO PRE= VENT.</p> <p>1. Peaceable Argument and Persuasion to Divert Trade from Business not Unlawful Boycott.</p> <p>Peaceable persuasion and argument, oral, printed or written, by members not officers of labor unions to divert patronage from, a hotel claimed by them to be “unfair to labor” will not be enjoined as an unlawful boycott.</p> <p>2. Coercive Measures by Labor Union to Maintain Boycott Enjoin-able.</p> <p>Injunction will lie to restrain coercive measures by labor unions in the maintenance of a boycott against a hotel claimed to be “unfair to labor.” Whether or not such claim is well-founded is immaterial.</p> <p>3. Restraint by Equity of Coercive Measures, or Violence to Maintain Boycott, no Violation of Right to Jury Trial or Freedom of the Press.</p> <p>Coercive measures to enforce a boycott may consist of violence or any form of intimidation such as threats, oral, printed or written. The. restraint of such unlawful acts. by a court of equity does not violate any right of trial by jury or any constitutional provisions as to the freedom of speech or the press.</p> <p>4. Passing of Cards Threatening to Publish Names of Patrons of Boycotted Hotel May be Enjoined.</p> <p>The distribution by pickets in a labor union boycott, of card3 warning patrons of a hotel and saloon not to patronize the place as unfair, and threatening to publish the names of any who do so may be enjoined.</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS — NUISANCES. v</p> <p>Suppression of Nuisance by Municipal Ordinance is Effective.</p> <p>Relief from nuisance may be effected under a general prohibitory,, municipal ordinance, enacted pursuant to Gen. Code 3650, “to prevent injury or annoyance” to the public; it is not restricted to the criminal prosecution prescribed by Gen. Code 12646.</p>

<p>CONSTITUTIONAL LAW — FISH AND GAME.</p> <p>1. Gen. Code 1453, Authorizing Commissioners of Pish and Game to • Issue Permits to Catch Carp in a Net, is Constitutional.</p> <p>issue permits to catch carp in a net is constitutional, but such commissioners have- no power to place any limits on the place where such permit shall be used other than that provided, in said section, and any attempted limitation will be disregarded.</p> <p>2. Waters of A Creek Which Plow Into Lake Erie and are on A Level With the Lake are Within Meaning of Gen. Code 1453.</p> <p>A place in a creek which flows into Sandusky Bay the waters of which are on a level with the bay and Lake Erie and subject to rise and fall under the same influences as affect the surface of the lake, is a water within the meaning of Gen. Code 1453 authorizing the catching of carp in nets therein when permission to do so has been obtained from the commissioners of fish and game.</p> <p>[Syllabus approved by the court.]</p>

<p>BANKRUPTCY — PAYMENTS.</p> <p>Payments by Debtor to Bankrupt after Piling of Petition, are Valid.</p> <p>Bona fide payments made by a debtor to a bankrupt after petition in bankruptcy filed but before adjudication thereon, payments made for services rendered after the filing the petition, and payments made subsequent to the adjudication if based upon an uncompleted contract for personal services involving the exercise of skill upon which reliance was had, are not recoverable by the trustee in bankruptcy from the debtors by whom such payments were made.</p>

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

<p>DEATH — RAILROADS.</p> <p>1. Testimony by Wife That She is Administratrix not Proof op her Capacity to Sue.</p> <p>Testimony by wife that she is the administratrix of her hijisband is not proof that she was duly qualified and acting as such at the filing of the petition in an action for his death by wrongful act; but if there were no evidence of her legal capacity to sue, the defendant knowing or having good reason to believe that she had that capacity, judgment will not be reversed on that ground only.</p> <p>2. Provisions of Act Qualifying Liability of Railways for Employes’ Injuries Applies to Action for Wrongful Death.</p> <p>In an action for damages, brought under Gen. Code 10770 for the wrongful death of a locomotive engineer, alleged to have been due to a defective engine and a defective track upon which to operate it, it is proper to apply the provision of Gen. ■Code 9017, paragraph 2, qualifying the liability of railway companies for injuries to their employes.</p>

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

<p>MUNICIPAL CORPORATIONS — INTERURBAN RAILWAYS.</p> <p>Inter-toban Railways Required to Light Street Crossings.</p> <p>Interurban railways, by analogy of statutes regulating, the-nature of business conducted, and mode of operation, now belong to tbe genus railroads, rather than that of street railways; hence, interurban railways are deemed railroads within the-meaning of Gen. Code 3762 and as such may be required by municipal ordinance to light street crossings. Followed, State v. Cleveland, 83 Ohio St. 61.</p> <p>[Syllabus approved by the court.]</p>

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

<p>Error to common pleas court.</p> <p>Cited and commented upon the ' following authorities: Eroll v. Close, 82 Ohio St. 190 [92 N. E. Rep. 29]; Page, Wills p. 758, Sec. 59; Oreen v. Hogan, 153 Mass. 462 [27 N. E. Rep. 413]; Ford v. Ford, 91 Ky. 572 [16 S. W. Rep. 451],</p>

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

<p>AUTOMOBILES — NEGLIGENCE.</p> <p>Res Ipsa Loquitur Applies to Negligence by Selles of Automobile Injuring Purchaser During Inspection.</p> <p>The doctrine of res ipsa loquitur controls in fixing responsibility for injuries sustained by a prospective purchaser of an automobile, occasioned during his inspection, by its sudden and unexpected motion against him while being manipulated and operated in owner’s garage by such owner. Negligence of the latter is presumed and the burden of rebutting is on him.</p> <p>[Syllabus approved by the court.]</p>

<p>ERROR — PLEADING—STREET RAILWAYS.</p> <p>1. Verdict Based on Close Question of Contributory Negligence not Disturbed.</p> <p>In an action for death in collision between a street car and buggy, a verdict for plaintiff will not be disturbed on review where the question of contributory negligence was close and properly submitted to the jury.</p> <p>2. Motion for Judgment on Pleadings for Failure to Deny Contributory Negligence too Late After Issue Tried as if Denied.</p> <p>Failure to reply to allegation of contributory negligence does not entitle defendant to judgment on the pleadings, since demand therefor was not made until after both parties had submitted their evidence, and the cause tried as though such averment had been denied.</p> <p>3. Requiring Jury to Find Injured Free from Negligence Before Verdict for Him Different from Case in Which Negligence is Admitted.</p> <p>An instruction, requiring the jury to find plaintiff’s decedent free from negligence in a street railway collision case and that the motorman could or should, in the exercise of ordinary care, have avoided the accident before returning a verdict for plaintiff, cannot be tested by the rule in a case in ■ which contributory negligence was admitted. Erie Ry. v. McCormick, 69 Ohio St. 4'5, distinguished.</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon the following authorities: Clark v. Stillwell-Bieroe & Smifh-Vaile Co. 18 Dec. 741 (6 N. S. 448), affirmed, Clark v. Stilwell-Bierce & Smith-Vaile Co. 76 Ohio St. 576; Spieler Co. v. Ferguson, 25 O. C. C. 671 (7 N. S. 13), affirmed, Speiker Co. v. Ferguson, 71 Ohio St. 503; Davis v. Turner, 69 Ohio St. 101 [68 N. E. Rep. 8191].</p> <p>Error is prosecuted to reverse a judgment for $1,125 based on injuries to the minor son of the plaintiff, and caused by the falling of a platform on which a sewer construction gang was at work and with whom the boy was employed.</p>

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

<p>Error to common pleas court.</p> <p>Cited and commented upon the following authorities: Lynch v. State, 31 O. C. C. 352 (12 N. S. 330) ; Kubach v. State, 25 O. C. C. 488 (2 N. S. 133); State v. Smith, 69 Ohio St. 196 [68 N. E. Rep. 1044]; Kappes v. State, 25 O. C. C. 723 (4 N. S. 14); Matthews v. State, 25 Ohio St. 536; Smith v. State, 22 Ohio St. 539; 16 Cyc. 848; Beeves v. State, 47 Tenn. 96; State v. Mat-lock, 70 Iowa 229 [30 N. W. Rep. 495] ’; Tucker v. People, 122 111. 583 [13 N. E. Rep. 809;].</p>

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

<p>MUNICIPAL CORPORATIONS.</p> <p>Under Longwoéth Act 1 Per Cent and 4 Per Cent Limitation on City Bonds do not Apply to Voted Bonds.</p> <p>Under Gen. Code 3945 the limitations on issue of bonds by a city provided for in Gen. Code 3940 and 3941 limiting council to 1 per cent in one year, 3942 to 4 per cent in all, do not apply to bonds authorized by vote.</p> <p>[Syllabus approved by the court.]</p>

<p>Quo Warranto.</p> <p>Cited and commented upon the following authorities: Greeff v. Equitable Life Assur. Soc. .160 N. Y. 19 [54 N. E. Rep. 712; 73 Am. St. Rep. 659]; Pomeroy, Eq. Jur. Secs. 819, 1088, 1170, 1184; Herman, Estoppel Secs. 1187, 1195; New York L. Ins. Go. v. Eggleston, 96 U. S. 572 [24 L. Ed. 841]; 2 Thompson, Corporations (2 ed.) Sec. 1946; 2 Herman, Estoppel 925; Steele v. Insurance Co. 3 Mo. App. 207; Wood v. Devarris, 11 Exch. Rep. 492; Collett v. Morrison, 9 Hare 173; Pence v. Arbuckle, 22 Minn. 417; Kinney v. Whiton, 44 Conn. 269; Waterford (Bd. of Ed.) v. Bank, 70 Hun. 520 [24 N. Y. Supp. 392] ; Beardsley v. Foot, 14 Ohio St. 414 [84 Am. Dec. 405]; Miller v. Sullivan,-13 Dee. Re. 544 (1 C. S. C. 281) ; Baynolds v. Cleveland {Qity), 28 Ó. C. C. 463 (8 N. S. 281) ; Ensel v. Levy, 46 Ohio St. 255 [19 N. E. Rep. 597]; Carlton v. Insurance Co. 72 G-a. 371; McGovern v. Knox, 21 Ohio St, 547 [8 Am. Rep. 80]; Rapp v. Elevator Co. 87 N. Y. Supp. 459; Southern Mut. Ins. Co. v. Montague, 84 Ky. 653 [2 S. W. Rep. 443; 4 Am. St: Rep. 218]; Lanvill v. Burke, 10 Circ. Dec. 605 (19 R. 513) ; Central Nat. Bank v. Insurance Co. 104 U. S. 54 [26 L. Ed. 693]; Pomeroy, Eq. Jurisp. Sec. 1076; Cook y. Addison, L. R. Eq. 466; United States L. Ins. Co. v. Spinks, 29 Ky. L. R. 960 [96 S. W. Rep. 889].</p>

<p>MORTGAGES.</p> <p>1. Voluntary Dismissal of Foreclosure Proceedings by First Mortgagee does not Oust Jurisdiction to Grant Relief to Subsequent Mortgagee.</p> <p>The voluntary dismissal of a cause of action by a plaintiff mortgagee asking to have 'its mortgage foreclosed will not oust the jurisdiction of án equity court to grant relief to a second mortgagee of part of the land, asking to have the cloud of the first mortgage removed by a sale in parcels.</p> <p>2. Second Mortgagee may Maintain Action to Foreclose Mortgage without Paying Claim of Prior Mortgagee.</p> <p>A second or junior mortgagee may maintain an action to foreclose his mortgage, without first paying off the .debt of the first mortgage.</p> <p>3. Junior Mortgagee Brought in by First Mortgagee Granted Relief on Cross Petition Notwithstanding Dismissal of Suit by Prior Mortgagee.</p> <p>A second mortgagee who has been brought into a foreclosure suit by a first mortgagee, may be granted relief upon a cross petition to have the cloud of the first mortgage removed from the property, even though the first mortgagee voluntarily dismisses his cause of action, and a third party who has purchased the equity of redemption desires to have the first mortgage remain upon the property.</p> <p>[Syllabus by the court.]</p>

<p>DOWER — MORTGAGES—PROCESS.</p> <p>1. Wife of Mortgagor not Bound to Redeem on Foreclosure, whei® Dower Interest not Necessary to Satisfy Mortgage.</p> <p>The inchoate dower of a wife is not a lien upon the land of her-husband, but an interest in it, and when not necessary to satisfy a mortgage in which the wife joins to release such dower,, she is not hound to redeem the mortgage on foreclosure top. preserve her dower.</p> <p>2; On Foreclosure on Cross Petition in Suit to Marshal Liens,, Dower of Wife of Mortgagor not Barred unless Summons Issue® on Cross Petition.</p> <p>When in a suit by a judgment creditor to marshal liens a summons is issued and served on the wife of the judgment debtor who had joined with her husband in the execution of a mortgage, and the mortgagee who was made a party, by cross petition filed after his rule day for answer, asks foreclosure of his; mortgage and sale of mortgaged premises but no summons was. issued on the cross petition and served on such wife, the sale-of such premises under the cross petition does not bar thfe inchoate dower of the wife in the premises.</p> <p>[Syllabus approved by the court.]</p>

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

<p>EVIDENCE — PRINCIPAL AND SURETY.</p> <p>1. Amendment of Answer Denied for Laches in Making Application.</p> <p>A surety company’s application to amend its answer admitting execution of the bond set forth in the petition and sued on, to deny the bond because ef alterations therein, comes too late upon trial nearly three years after answer filed during which period depositions were taken upon notice to the surety and the original bond éxhibited; especially since to interpolate the condition in the bond alleged to be altered would have the effect of making the bond and contract inconsistent.</p> <p>2. Failure of Payee to Notify Surety of Defaults of Principal as to Part of Contract Terms no Release as to Defaults Duly Noticed.</p> <p>Failure of the payee of a bond for performance of a contract to notify the surety of defaults by the principal as to part of the contract does not operate as a release of the surety, in absence of actual prejudice shown, as to defaults for which notice was duly given.</p> <p>3. Slight Deviations in Performance of Contract Terms not Affecting Period of Liability do not Release Surety.</p> <p>Slight deviations, as to amount and time of delivery of contract article, by reguest of payee of bond securing contract, not affecting the period of alleged liability, do not release surety.</p> <p>4. Admission or Evidence or Market Value.</p> <p>Admission of evidence of market value of subject of contract at other nearby points to be considered in absence of market value at stipulated place of delivery is not prejudicial to interests of surety on bond in action thereon.</p> <p>[Syllabus approved by the court.]</p>

Th,e defendant in error, a motorman on the C., G. & P. line, sustained injuries for which he was awarded a judgment below of $1,000.

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

<p>WILLS.</p> <p>1. Devisee Taking Possession of Property Willed to Her Held Es-topped to Contest Will.</p> <p>A daughter who has gone into possession of land devised to her by the will of her father, leased the same to a third person and has collected the rents and profits therefrom from the date of the probate of said will is estopped thereby to contest the validity of the will, though the petition therefor was filed within the time prescribed by Gen. Code 12087 for the contest of a will.</p> <p>:2. Devisee Receiving Rents and Profits of Land Devised to Her and Leasing Same with Knowledge of Condition of Estate, Etc., Bars Her Contest of Will,</p> <p>A daughter having received the rents and profits of certain land devised to her by the terms of the will of her father, she, after his death, having subjected said land to a lease to a third person, and with full knowledge of the condition of the estate and the terms of the will cannot raise the bar created by the estoppel of her conduct and file and maintain a petition to contest the validity of said will by and on the return of said rents and profits so collected to the executor, or by bringing the money into court. In such case the acceptance of the devise is an absolute bar to the contest of the validity of the will, and it is not error for the trial court to dismiss the action of the plaintiff in such a case.</p> <p>3. Legatee Having no Legal' Pecuniary Interest except Legacy Held Necessary Party to Contest of Will.</p> <p>A person who has no legal pecuniary interest in an estate in case of intestacy and who has only a remainderman’s interest by virtue of a will as legatee therein is a necessary party defendant in a proceeding to contest the validity of said will,, but has no such an interest under the provisions of Gen. Code 12079 as will permit or allow said person as such legatee to file and maintain an answer or cross petition to contest the validity of the will, or to join in the prayer of the petition to have. an issue made up and it is not error for the trial court to dismiss such cross petition of such person.</p> <p>4. Will Contest not Proceeding to Quiet Title.</p> <p>A will contest cannot take the place of a proceeding to quiet title under the statutes of Ohio.</p> <p>[Syllabus by the court.]</p>

<p>'ASSESSMENTS — MUNICIPAL CORPORATIONS— TAXES.</p> <p>City cannot Levy Taxes by Sewer Districts to Pay Cost of Improve, ments.</p> <p>A city cannot levy taxes by sewer districts to provide a sinking fund for sewer district bonds, issued since the municipal code of 1902 went into effect, for the.purpose of paying that portion of the cost of sewers constructed in certain districts and not assessed upon the property specially benefited, notwithstanding proceedings therefor were commenced in council before the present code went into effect and under a statute authorizing such levy.</p>

<p>ASSESSMENTS — SIDEWALKS.</p> <p>1. Temporary Failuee to Make Intersecting Sidewalks Meet at Grade does not Invalidate Assessment.</p> <p>The fact that a sidewalk as constructed is some feet below the grade of the intersecting .street does not invalidate the assessment, where it appears that the grade of the sidewalk is at the proposed grade of the intersecting street, the improvement of which is in contemplation.</p> <p>2. Signing Petition fob Sidewalk Improvement Estops Signer from: Denting Assessment Therefor.</p> <p>Payment of an assessment for a sidewalk on one side of a corner lot does not relieve the owner from payment of the assessment for the walk on the other street,' where the later improvement is one for which he himself petitioned.</p>

<p>MUNICIPAL CORPORATIONS — STREETS.</p> <p>Damases from City may be Recovered for Unnecessary Destruction of Shade Trees in Street.</p> <p>The council of a municipality has no right to destroy shade trees growing in the street unless it is necessary to do so for the purpose of using the ground for street purposes and an abutting owner who is injured by such unnecessary destruction caused by the city may recover damages from the city.</p> <p>[Syllabus approved by the court.]</p>

Colonel Sullivan was agent for Mr. Telling, no consideration for agency being necessary. 31 Cye. 1216; 1 Am. & Eng. Enc. Law 950. An agent to sell cannot purchase for himself. 4 Am. & Eng. Enc. Law 966; Taussig v. Hart, 58 N. Y. 425'; 1 Am. & Eng. Enc. Law (2 ed.) 1077; James v. James, 55 Ala. 525; Dos Pasos, Stock Brokers p. 365; Peckman Iron Go. v.^Harper, 41 Ohio St. 100; Welsh v. Perkins, 8 Ohio 52 [28 Am.

<p>MUNICIPAL CORPORATIONS — STREETS.</p> <p>1. City is Liable for Acts of Its Contractors Working Under the Direction of the City Engineer.</p> <p>A city and its contractors are jointly liable for damage done to shade trees by the contractors in constructing a sidewalk under the direction of the city engineer.</p> <p>2. City cannot Destroy Shade Trees on Streets Unless Necessary to Further Street Purposes.</p> <p>A city council has no right to cause the destruction of shade trees upon its streets unless it is necessary to use the ground occupied by them for street purposes, and an abutting owner injured by such destruction may recover damages from the city. Newcomerstown v. Dickenson, 32 O. C. C. 311, followed and approved.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to common pleas court.</p> <p>The defendant in error recovered a verdict of $257.47 for injury to his horse and buggy in a collision with a traction ear on College Hill. The petition alleged that the horse was frightened and uncontrollable 'at the time of-.the accident, that the motorman saw or could have seen the peril in which the plaintiff was placed in ample time to have stopped the car, and that the situation was further complicated by the fact that a down car was running on the up track.</p>

<p>ADVERSE POSSESSION — EASEMENTS.</p> <p>1. Prescriptive Right of Way over Lands of Another along Stream; Passes by Will or Conveyance.</p> <p>A party who uses a road or way as a means of ingress and egress to his own land, over the lands of another along the hanks of a stream without let or hinderance and without obstruction for a period of twenty-one years, acquires a right by prescription, to its use as an incident to his land, and the right will pass by conveyance or descent of the land. Pavey v. Vance, 56 Ohio St. 162 [46 N. E. Rep. 898].</p> <p>2. Shift in Roadway Conforming to Shift in Stream Adjacent does; not Defeat Prescriptive Right of Egress and Ingress.</p> <p>A party having a prescriptive right to the use of a road or way over the lands of another along the banks of a stream as a means of ingress and egress to his premises, said right is not lost, modified or affected by reason of a shift in the traveled road or way, the traveled road or way remaining in the same-location for a less period than twenty-one years, provided said shift in the traveled road or way is occasioned by a like shift in the bed and bank of said stream, and no more land than is necessary is thereby occupied, in order to continue the use of said road or way along the banks of said stream as a means of ingress and egress to his said premises. In such ease the traveled road or way lawfully shifts with the bed and bank of said stream.</p> <p>[Syllabus approved by the court.]</p>

<p>Appeal from common pleas court.</p> <p>Cited and commented upon the following authorities: 12 Am. & Eng. Enc. Law (2 ed.) 628, 629, 696; 28 Am. & Eng. Ene. Law (2 ed.) 1115, 1116, 1118; Sutliff v. Bank, 18 Dec. 354 (6 N. S. 177); Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. Rep. 572; 2 L. R. A. 753; 15 Am. St. Rep. 562] ; Campbell v. State, 35 Ohio St. 70; Union Stock Yards Bank v. Gillespie, 137 U. S. 411 [11 Sup. Ct. Rep. 118; 34 L. Ed.. 724]; Central Nat. Bank v. Insurance Co. 104 U. S. 54 [26 L. Ed. 693] ; Commercial Nat. Bank v. Armstrong, 6 O. F. D. 383 [39 Fed. Rep. 684] ; Hunter v. Bobbins, 117 Fed. Rep. 920; Union Stock Yards Bank v. Moore, 79 Fed. Rep. 705; Baker v. Bank, 100 N. Y. 31 [2 N. E. Rep. 452; 53 Am. St. Rep. 150]; Clemmer v. Bank, 157 III. 206 [41 N. E. Rep. 728]; LaPorte v. Carpenter, 91 Hum 76 [36 N. Y. Supp. 168] ; Cavin v. Gleason, 105 N. Y. 256 [11 N. E. Rep. 504]; Ellicott v. Euhl, 60 N. J. Eq. 333 [46 Atl. Rep. 945]; Cushman v. Goodwin, 95 Me. 353 [50 Atl. Rep. 50] ; Peters v. Bain, 133 U. S. 670 [10 Sup. Ct. Rep. 354; 33 L. Ed. 696]; Veil v. Mitchell, 4 Wash. 105; Fahnestock v. Baüey, 60 Ky. (3 Mete.) 48 [77 Am. Dec. 161] ; National Cordage Co. v. Sims, 44 Neb. 148 [62 N. W. Rep. 514]; Merrill v. Bank, 36 Mass. (19 Pick.) 32; Heidelbach v. Bank, 87 Hum 117 [33 N. Y. Supp. 794] ; Cady v. Bank, 46 Neb. 756 [65 N. W. Rep. 906]; Van Alen v. Bank, 52 N. Y. 1; Burtnett v. Bank, 30 Mich. 630; Davis v. Bank, 29 S. W. Rep.,' 926 (Civ. Tex. App.) ; Third Nat. Bank v. Gas Co. 36 Minn. 75 [30 N. W. Rep. 440] ; Commercial Nat. Bank v. Armstrong, 6 O. F. D. 383 [39 Fed. Rep. 634] ; Skunk v. Bank, 9 Dec. Re. 684 (16 Bull. 353) ; Cincinnati, H. & D. By. v. Bank, 54 Ohio St. 60 [42 N. E. Rep. 700; 31 L. R. A. 653; 56 Am. St. Rep. 700]; Covert v. Bhodes, 48 Ohio St. 66 [27 N. E. Rep. 94]; Lotze v. Hoerner, 11 Dec.' Re. 131 (25 Bull. 31) ; 4 Cyc. 50; Converseville Co. v. Woollen Co. 14 Hun. (N. Y.) 609; Duguicl v. Edwards, 50 Barb. (N. Y.) 288; Martin v. Moulton, 8 N. H. 504; District Township of Eureka v. Bank, 88 Iowa 194 [55 N. W. Rep. 342]; Bobb v. Boelker, 9 O. F. D. 24 [66 Fed. Rep. 23] ; 7 Enc. PI. & Pr. 361, 362, 363; Moffat v. Wood, Seld. Notes (N. Y.) 200; Powers v. Benedict, 88 N. Y. 605; Hersey v. Benedict, 15 Hun. (N. Y.) 282; Miller v. Lake, 24 W. Ya. 545; Second Nat. Bank v. Morrison, 3 Dec. Re. 534; Morgan v. Skidmore, 3 Abb. N. Cas. (N. Y.) App. 92; Badman v. Haberstro, 49 Hun. (N. Y.) 605 [1 N. Y. Supp. 561]; Bowen v. Mmdeville, 95 N. Y. 237; Parken v. Knox, 60 Hun. 550 [15 N. Y. Supp. 256]; Walden Nat. Bank v. Birch, 130 N. Y. 221 [29 N. E. Rep. 127; 14 L. R. A. 211]; Bidgely Bank v. Patton, 109 111. 479; Hobbs v. Hobbs, 58 N. H. 51.</p>

<p>Error to common picas court.</p>

<p>AUTOMOBILES — STREET RAILWAYS.</p> <p>Collision between Automobile and Street Car Caused by Unexpected Change in Course op the Former not to be Anticipated by Motorman, not Ground por Recovery.</p> <p>Conflicting testimony tending to show that an automobile attempting to pass between came into collision almost simultaneously with two cars belonging to different companies and approaching on parallel tracks, and injuring a passenger on the car probably last to strike the automobile by being burned by an explosion of the gasoline tank thereon, is not sufficient to warrant a verdict in favor of such passenger, the unexpected change of course by the automobile not being one to be anticipated and guarded against by the motorman.</p>

<p>' EVIDENCE — NEGLIGENCE—STREET RAILWAYS.</p> <p>1. Weighing Plaintiff’s Evidence in Negligence Case Requires Separation of Evidence Tending to Prove Essential Pacts 'of His Case from that Tending Otherwise.</p> <p>An issue of failure to exercise due care by plaintiff having been raised by the pleadings and evidence, an instruction is erroneous that directs the jury to find for plaintiff in the event his evidence outweighs that of defendant, especially since they were not at the same time directed, before weighing plaintiff’s evidence to separate, without regard to source, such evidence as tends to prove the essential facts of his case from that which tends otherwise.</p> <p>2. Motorman not Required to Use Every Possible Effort to Avoid Collision.</p> <p>The first and highest duty of a motorman is owing to the passengers on his car; hence a charge that “it was his duty to make every effort to check his car or stop his car, if necessary, in order to avoid injury” by collision, being liable to be construed as meaning “every possible effort,” is more than the law requires.</p>

Plaintiff below brought suit in the common pleas court of this county for damages on account of the death of his wife, who was struck and fatally injured by an inbound interurban. car as she alighted from an outbound car of the Cincinnati Traction Company. The case was removed to Clermont county for trial, and a verdict was returned for the husband of $3,000» Error was prosecuted to the circuit court for reversal of that judgment.

As to the claim that the evidencé fails to disclose the year in which the offense was committed. Foster v. State, 19 Ohio St. 415; Carry v. Gaynor, 21 Ohio St. 277, 280. It is claimed that the affidavit upon which the warrant was issued is defective, mainly for the reason that it is not specially alleged “that the articles sold were not products of defendant’s own raising or manufacture.” St. Louis v. Meyer, 185 Mo. 583 [84 S. W. Rep. 914]; 15 Am. & Eng. Ene.

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

<p>Error to common pleas court.</p> <p>Action was brought for a balance of $639.45, due for services and expenses in connection with an arbitration. The jury returned a verdict for the amount claimed, but failed to compute interest thereon. In entering judgment on the verdict the court below added interest.</p>

<p>CONTRACTS — EVIDENCE.</p> <p>Statements by Defendant, not Beabino upon Liability not Prejudicial.</p> <p>Admission of 'statements made by defendant in an action upon a. contract, but which have no bearing upon the question of his-liability, are not prejudicial, notwithstanding they were not. made in the presence of the plaintiff and were self-serving.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>1. Plaintiff Averring Concealment of Property by Defendant, Who, on Motion to Discharge 'Attachment, Denies Truth thereof, has Burden to Establish Averment.</p> <p>An affidavit having been filed under R. S. 6523 (Gen. Code 10298) hy defendant in support of a motion to discharge an attachment denying the truth of an averment contained in the affidavit upon which the attachment was issued that he has property and rights in action which he conceals, one of the grounds prescribed hy R. S. 6489 (Gen. Code 10253), the burden is upon plaintiff to show by a preponderance of the evidence that his allegation in that behalf is true.</p> <p>2. Defendant’s Affidavit Averring Untruth of Plaintiff’s Averments for Attachment Treated as Denial.</p> <p>An affidavit hy defendant, averring that the affidavit of plaintiff upon which the attachment was issued is not true, must he accepted as a denial of the averment that the defendant has property and rights in action which he conceals.</p> <p>3. Evidence that Defendant is Head and Support of Family Ground for Discharge of Attachment.</p> <p>Evidence by defendant that he is the head and support of a family is ground for a discharge of an attachment, where not met by evidence of greater weight offered by plaintiff.</p>

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

<p>ERROR — EXECUTORS AND ADMINISTRATORS.</p> <p>Circuit Court Has No jurisdiction to Review Proceedings for the Removal of Administrators.</p> <p>The circuit court, under R. S. 6708, 6709 (Gen. Code 12241, 12247) has no jurisdiction to review by a proceeding in error an order of the common pleas court removing an administrator in a proceeding brought into that court on error to the probate court.</p> <p>[Syllabus approved by the court.]</p>

<p>MANDAMUS — PHYSICIANS AND SURGEONS.</p> <p>Mandamus Lies to Compel State Medical Board tq Hold Examinations Prescribed by Statute.</p> <p>The delay for more than three years on the part of the State Medical Board to appoint a time for holding, in other cities than Columbus, examinations of applicants for certificates to practice medicine as reguired. by Gen. Code 1273, and the failure to fix a date for such examinations in June, which is the month when medical students complete their studies and desire to apply for certificates, is an abuse of the discretion vested in that board, and unless the said board desires to set forth by answer a reason for its inaction in that respect, a peremptory writ of mandamus will issue against it.</p>

<p>EXECUTIONS — -JUDGMENTS—LIENS.</p> <p>Judgment Creditor 'Failing to Levy Execution Retains Lien but Loses Priority as to Other Liens in Force.</p> <p>A judgment creditor, not having levied his execution for more than a year as required by R. S. 5415 (Gen. Code 11708), while retaining his lien, loses his priority as to a subsequent judgment upon which execution was levied within such year.</p>

<p>MASTER AND SERVANT.</p> <p>1. Failure to' Guard Stationary Engine does not Make a Master Liable if not the Rroximate Cause of the Injury.</p> <p>Failure to enclose a stationary engine in a factory with a guard rail as provided by Gen. Code 1027, does not make the master liable for an injury to the seller of a steam pump, assisting the master’s own employes, in carrying it by the engine in operation, since it appears that an ordinary guard rail would not have prevented the accident.</p> <p>2. Instruction Erroneously Refused.</p> <p>The testimony having tended to prove that one assisting a master’s employes on carrying a heavy weight, accidentally, and through no fault of theirs, tripped over the corner of an engine platform while walking backwards past it, an instruction raising the theory that the tripping rather than failure to guard the engine was the proximate cause of the injury was improperly refused.</p> <p>3. Respondeat Superior.</p> <p>One, not an employe, assisting - employes in carrying by an unguarded revolving engine a heavy piece of machinery sold by him to the master, being injured by the negligence of the engineer causing him to fall against such engine, would recover under the doctrine of. respondeat superior and not for failure to maintain guard rails about the engine.</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon by the following authorities: State v. Simmons, 49 Ohio St. 305 [31 N. E. Rep. 34] ; State v. Wing, 66 Ohio St. 415 [64 N. E. Rep. 514]; State v. Thatcher, 12 Dec. 718; Cantwell v. State, 18 Ohio St. 477; Doyle v. State, 17 Ohio 225; Williams v. State, 12 Ohio St. 622; Goodin v. State, 16 Ohio St. 345; 14 Cyc. 298; 2 Tidd, Practice 1109; Bean v. Ayers, 70 Me. 421; Cook Carnage Co. v. Johnson, 23 Bull. 374; Cincinnati St. By. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340]; Estabrook v. Gebhart, 32 Ohio St. 415; 3 Cyc. 50, 52, 57, 73; Tanner v. Brown, 5 Dec. Re. 112 (2 Am. L. Rec. 614); Driver v. Driver, 153 Ind. 88 [54 N. E. Rep. 389]; Boss v. Bailway, 141 Mo. 390 [38 S. W. Rep. 926; 42 S. "W. Rep. 957] ; Bank of Kingfisher v. Smith, 2 Old. 6 [35 Pac. Rep. 955]; Pollard v. Butter, 35 111. App. 370; Myers v. Phillips, 68 111. 269; Heinsen v. Lamb, 117 111. 549 [7 N. E. Rep. 75]; Shepard v. Hull, 42 Me. 577; True v. Plumley, 36 Me. 466; Crane v. Judge of Wayne Circuit, 24 Mich. 513; Sedam v. Meeksback, 3 Circ. Dee. 424 (6 R. 219); Beed v. Miller, 4' Ky. (1 Bibb) 142; Anthony v. Travis, 148 Mass. 53 [19 N. E. Rep. 8]; Burlington, K. & S. W. By. v. Grimes, 38 Kan. 241 [16 Pac. Rep. 472]; Barnhart v. Clark, 59 Tex. 552; Witbeck v. Waine, 8 How. Pr. (N. Y.) 433; Bew v. Barker, 2 Cow. 408 (N. Y.) 515 [14 Am. Dec. 515] ; Hodges v. Lassiter, 94 N. C. 294; Peebles v. Braswell, 107 N. C. 68 [12 S. E. Rep. 44] ; State v. Powers, 69 Minn. 429 [72 N. W. Rep. 705] ; Biverside Bub-her Co. v. Manufacturing Co. 63 Ohio St. 66 [57 N. E. Rep. 958]</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Municipality Liable eob Injuries Incurred by Pedestrian’s Falling Over Unguarded Retaining Wall Adjacent to Sidewalk.</p> <p>The lines of a street and sidewalk adjacent to an unguarded precipitous retaining wall, being so near as to create an impression that the wall is within the line of the sidewalk, make the municipality liable for injuries incurred by a pedestrian’s falling over such wall; a variance between the allegations of the petition and proof as to the location of the wall is immaterial.</p>

<p>CURTESY — PLEADING.</p> <p>1. Estate by Curtesy Extinguished by Death op Claimant’s Wife before Life Tenant.</p> <p>An estate by curtesy cannot be had in lands, the possession for life of which was held by intestate’s widow who died in 1895, nearly twenty years after the death of claimant’s wife, a daughter of intestate, such daughter’s having no estate in, or right to, possession therein at her death, the husband’s right was thereby extinguished.</p> <p>2. Petition for Assignment of Curtesy is Demurrable.</p> <p>Demurrer lies to a petition .to assign curtesy in la,nd for the reason that no such proceeding is now known to the law, and when it appears that the claimant is not a remainderman or in possession as required by Gen. Code 11901, the action cannot be sustained as one to quiet title. H</p> <p>[Syllabus approved by the court.]</p>

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

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

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

The defendant in error was riding in a one-horse wagon with a driver, and in crossing Broadway at Eighth street a car coming from the north on Broadway collided with the-wagon and she was thrown ffom the wagon and injured.

<p>DAMAGES — HIGHWAYS—INJUNCTION—LEVEES.</p> <p>1. Raising Grade of Public Highway to Prevent Overflow Cannot be Enjoined.</p> <p>The raising of the grade of a public highway which is subject to overflow in times of flood, cannot be enjoined by an adjacent property owner on the ground that the road was long ago improved to a definite and fixed grade and no steps have been taken by the county commissioners to appropriate the land which will be damaged thereby or to make compensation to the owner.</p> <p>2. Measure of Damages for Raising Grade of Highway to Prevent Overflow is Difference in Value of Land Before and After Improvement.</p> <p>In such a case the owner of the lands damaged by the improvement has an adequate remedy at law, the damage being complete at the time the improvement is complete and measured by the difference in the value of the lands before the improvement was made and afterward.</p> <p>[Syllabus by the court.]</p>

<p>DEFECT IN SIDEWALK.</p> <p>Liability of Municipalities for Defects in Sidewalks Does not In- " clude Slight Depressions of not More than Two Inches.</p> <p>Reasonable care is all a municipal corporation is charged with in the maintenance of its sidewalks, and it is not liable for slight depressions not exceeding two inches, unless there be something in the condition of the depression specially calculated to cause an injury.</p> <p>[Syllabus by the court.]</p>

The defendant in error, plaintiff below, while employed as a motorman by the railway company, was severely injured in a collision, due to the fact that he left the car barn under the impression that the car which he was scheduled to meet at that point had arrived, whereas the regular crew on the approaching car, whom he saw at the car barn, were not on that run on that day. The jury gave him a verdict of $3,500

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

<p>BASIS OF ADDITIONAL COMPENSATION TO COMMON PLEAS JUDGES.</p> <p>Statutory Regulation as to Salaries op Common Pleas Judges Based-upon Population Because Litigation is in Proportion to Population — Regard may be Had por Consideration op Injustice in Construing a Statute which is Ambiguous.</p> <p>A judge of the court of common pleas in a judicial subdivision containing more than one county, whose term of office began before the adoption of the present code, is entitled under R. S. 1284a (Qen. Code 2252), to extra compensation calculated on the basis of the population of the subdivision, rather than on the basis of the population of the county where he happens-to reside.</p> <p>[Syllabus by the court.]</p>

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

<p>ERROR — PLEADING—TRIAL.</p> <p>1. On Remand Reversing Order Overruling Demurrer Court Below may Permit Amendment to Demurred Pleading.</p> <p>The circuit court, upon the Supreme Court’s having sustained a demurrer and remanding the case for further proceedings, may, under R. S. 5116 (Gen. Code 11365), allow an amendment to the pleading to which demurrer is sustained.</p> <p>2. Payment of Taxes under Mistake of Law with Knowledge of the Facts is Voluntary.</p> <p>The payment of taxes under a mistake of law with full knowledge of the facts, cannot, when made voluntarily, be recovered; hence, where an amendment to an answer contains facts sufficient to show a forfeiture by the life tenant, under R. S. 2852 (Gen. Code 5688) it is unnecessary to show how much taxes were so paid or whether other real efetate was forfeited to the remainderman so long as such amended answer states a good, though partial, defense.</p>

• This is an action by which the city seeks to recover from the Lake Shore & Michigan Southern Railway Co. for water used by the railway company in its watering tanks and at the depot for flushing closets, etc. A petition and answer were filed and then the case was submitted to the court upon an agreed statement of facts, in whieh it is agreed: “That the plaintiff is a municipal corporation and that the defendant is a railway corporation operating its railway through the…

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

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

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

<p>Error to common pleas court.</p> <p>Permissive use of public sewers, Dermont v. Detroit, 4 Micb. 435; Sheriff v. Oskaloosa, 120 Iowa 442 [94 N. W. Rep. 904] ; Buckley v. Neiu Bedford, 155 Mass. 64 [29 N. E. Rep. 201]; Boll v. Indianapolis, 52 Ind. 547.</p> <p>Prevention of the injury, Wilson Co. v. Waterbury, 73 Conn. 416 [47 Atl. Rep. 687] ; Carr v. Northern Liberties, 35 Pa. St. 324 [78 Am. Dec. 342] ; Mills v. Brooklyn, 32 N. Y. 489; Kelley v. Portland, 100 Me. 260'[61. Atl. Rep. 180]; Detroit v. Beckman, 34 Mich. 125 [22 Am. Rep. 507]; Bealafeld v. Verona, 188 Pa. St. 627 [41 Atl. Rep. 651]; Rozell v. Anderson, 91 Inch 591.</p> <p>Liability for obstructions in sewers, Zanesville v. Fannan, 53 Ohio St. 605 [42 N. E. Rep. 703; 53 Am. St. Rep. 664] ; Arndt v. Cullman, 132 Ala. 540 [31 So. Rep. 478; 90 Am. St. Rep. 922] ; City of Effingham v. Burrells, 77 111. App. 460; Smith v. New York, 66 N. Y. 136; Knostman & Peterson Furniture Co. v. Davenport, 99 Iowa 589 [68 N. W. Rep. 887] ; Row v. Portsmouth, 56 N. H. 291 [22 Am. Rep. 464],</p> <p>Injuries resulting from extraordinary or excessive rainfall, Peoria v. Adams, 72 111. App. 662; Allen v. Chippewa Falls, 52 Wis. 430 [9 N. W. Rep. 284; 38 Am. Rep. 748] ; Gulat'h v. Si. Louis, 179 Mo. 38 [77 S. W. Rep. 744] ; Los Angeles Cemetery Assn. v. Los Angeles, 103 Cal. 461 [37 Pac. Rep. 375] ; Helbling v. Cemetery Co. 201 Pa. St. 171 [50 Atl. Rep. 970]; Wright v. Wilmington, 92 N. C. 156.</p> <p>Effect of storm on other cellars, Bateman v, Rutland, 70 Yt. 500 [41 Atl. Rep. 500] ; Jamieson v. Railway', 147 N. Y. 322 [41 N. E. Rep. 693]; Lincoln v. Manufacturing Co. 91 Mass. (9 Allen) 181; Clark v. Willett, 35 Cal. 534; Fitzsimmons v. Braun, 199 111. 390 [65 N. E. Rep. 252; 59 L. R. A. 421] ; Blank v. Livonia (Tp.), 79 Mich. 1 [44 N. W. Rep. 157] ; Windhaus v. Bootz, 92 Cal. 617 [28 Pac. Rep. 557] ; Murdock v. State, 68 Ala. 567; MaHyn v. Curtis, 67 Yt. 263 [31 Atl. Rep. 296]; Stoker v. Railway, 91 Mo. 509 [4 S. W. Rep. 389]; Leidlein v. Meyer, 95 Mich. 586 [55 N. W. Rep. 367].</p> <p>Cited and commented upon the following authorities: Hart v. Neillsville, 125 Wis. 546 [104 N. W. Rep. 702; 1 L. R. A. (N. S.) 952; 4 Am. Cas. 1085] ; Barton v. Syracuse, 36 N. Y. 51; Daggett v. Cohoes, 7 N. Y. Supp. 882; Bolton v. New Rochelle, 84 Hun. 281 [32 N. Y. Supp. 442]; Evers v. Long Island City, 78 Hun. 242 [28 N. Y. Supp. 825] ; Fort Wayne v. Coombs, 107 Ind. 75 [7 N. E. Rep. 743; 57 Am. Rep. 82] ; Murphy v. Indianapolis, 158 Ind. 238 [63 N. E. Rep. 469] ; Roberts v. Dover, 72 N. BE. 147 [55 Atl. Rep. 895]; Lakeside <& M. Ry. v. Kelly, '6 Ciro. Dec. 555 (10 R. 322) ; Baxter v. Doe, 142 Mass. 558' [8,N. E. Rep. 415]; Meyer v. Wolnitzell, Tex. Civ. App. [63 S. W. Rep. 1058]; Crocker v. McGregor, 76 Me. 282 [49 Am. Rep. 611] ; Birmingham Union Ry. v. Alexander, 93 Ala. 133 L9 So.. 'Rep. 525].</p>

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

<p>EVIDENCE — INTOXICATING LIQUORS.</p> <p>1. Admission of Internal Revenue Retail Liquor Tax Certificate Kot in Contravention of Constitutional Requirement as to Accused’s Meeting "Witnesses Pace to Pace.</p> <p>Admission of a certified copy of the record in the United States internal revenue department showing payment hy accused of a special tax as retail dealer in intoxicating liquors, payment of which is made prima facie evidence of violation of local option laws, is not in contravention of Sec. 10 of the hill of rights providing that accused shall be entitled to meet witnesses face to face, the constitutional inhibition applying to parol evidence only and not to introduction of public records or instruments of writing.</p> <p>2. Certified Cories of U. S. Government Records Competent Evidence in Criminal Proceedings.</p> <p>‘Under Gen. Code 11500, making copies of certain records in the executive departments competent evidence, a certified copy of the internal revenue department showing payment of a retail dealer’s liquor tax is the best evidence of the fact of payment provided for in Gen. Code 6100, especially since under the rules of the internal revenue department the original records are not permitted to be taken from.the office of the collector. This rule applies to criminal as well as civil cases.</p> <p>[Syllabus approved by the court.]</p>

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

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

<p>ASSESSMENTS — INJUNCTION.</p> <p>Petitioner for Street Improvement Completed as Petitioned is Barred-from Objecting to Assessment.</p> <p>An abutting property owner, having petitioned under Gen. Code 3835” for improvement of a certain street and that the improvement he made in a particular manner, cannot thereafter enjoin collection of the assessment on the ground that the improvement was made in an improper and negligent manner, where it was made in the way designated in the petition.</p>

Harrington, a prisoner in the Cincinnati workbouse, filed a petition in common pleas for a writ of habeas corpus, which having been denied, error was prosecuted. The petitioner was committed to the workhouse by the police court under sentences aggregating more than fivé years.

<p>COUNTIES — INTEREST.</p> <p>1. Prosecutor May Maintain Action for Recovery of Interest on ' County Funds Unlawfully Deposited.</p> <p>A prosecuting attorney may maintain an action for the benefit of the county under R. S. 1277 (Gen. Code 2921) for recovery from a bank of interest on public funds deposited therein, whether so deposited lawfully or otherwise.</p> <p>2. Six not Four Years’ Limitation Applies to Action for Recovery of Interest on County Funds.</p> <p>An action for recovery of interest on county' funds deposited without authority is brought for the benefit of a county; hence the state is not a real party in interest, and the six years’ statute of limitations prescribed by R. S. 4981 (Gen. Code 11221), and not the four years’ limitation provided by R. S. 4982 (Gen. Code 11224) is available.</p>

The turnpike company brought an action to recover compensation for something over a mile of roadway, which it was claimed the village had taken possession and is using as a street without first making compensation therefor.

<p>Error to common pleas court.</p> <p>Cited and commented upon by tbe following authorities: Thompson, Trial Ev. Sec. 1121; Windisch v. Opp, 9 Circ. Dec. 516 (17 R. 465); 2 Ene. Evidence p. 841; Hayes v. Candee, 75 Conn. 131 [52 Atl. Rep. 826] ; Page, Wills Sec. 125; 'Smith v. Henline, 174 111. 184 [51 N. E. Rep. 227] ; Hall v. Hall, 78 Ohio St: 415.</p>

<p>ATTACHMENT AND GARNISHMENT — PROCESS.</p> <p>Foreign Corporation Haying no Place of Business as Officer in COUNT! SeBVABLE WITH SUMMONS NOT EXEMPT FROM ATTACHMENT before Justice of the Peace.</p> <p>The provisions of the civil code, relating only to jurisdiction over the person are not applicable to R. S. 6489 (Gen. Code 10253), relating to attachment of goods only; hence, the right of attachment against personal property of a foreign railroad company, having no place of business or officer upon whom summons can be served within the county, is given under R. S. 6489 (Gen. Code 10253), and such a company is not exempted from attachment by the provisions of R. S. 6478 (Gen. Code 10239).</p>

<p>EVIDENCE — WILLS.</p> <p>1. Validity or Will upon Contest Sustained only When Executed Pursuant to Statute.</p> <p>Upon a contest of a will, its validity will be sustained only when it appears that such will was executed in accordance with the provisions of Rev. Stat. 5916 (Gen. Code 10505).</p> <p>2. Testator Required to Both Subscribe and Acknowledge Will in Presence or Subscribing Witnesses.</p> <p>The provisions of R. S. 5916 (Gen. Code 10505) require that the testator shall not only subscribe but acknowledge the will as his will, in the presence of two subscribing witnesses.</p> <p>3. Failure op Testator to Declare Paper Writing His Will to Subscribing Witness not Present at Writing Invalidates Will.</p> <p>T signed what purported to be his will and the same was signed by the scrivener thereof and a son of said testator as witnesses thereto, but the latter was not present when said paper writing was written, nor did said testator make known to him that said paper writing was his will. Held, that said paper writing was not subscribed and acknowledged as contemplated by the provisions of said R. S. 5916 (Gen. Code 10505), and the same is not therefore a valid will.</p> <p>4. Exclusion op Testimony op Contradictory Statements op Subscribing Witness as to His Knowledge of Instrument Signed, Erroneous.</p> <p>Where testimony is offered on the trial by the contestants of an alleged will tending to show that one of the witnesses thereto made contradictory statements at different times touching his knowledge that the paper writing signed by him as such witness was subscribed and acknowledged as testator’s will, it is error upon tile part of the trial court to exclude such testimony.</p> <p>[Syllabus by the court.] ■</p>

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

<p>DAMAGES — TRESPASS.</p> <p>Use op Firearms to Expel Trespassers not Justified ip Owner does not Reasonably Anticipate Bodily Injury.</p> <p>A mere trespass on real estate does not justify an owner’s use of firearms to drive trespassers from the premises, if he has no reason to fear that the trespassers would do him great bodily harm.</p>

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

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

<p>ASSESSM ENTS — FENCES.</p> <p>Bids for Construction of Partition Fence not Enjoinable for Want of Notice of Sale, Notice to Adjoining Owner of Proceedings to Build Haying Been Given.</p> <p>Gen. Code 5910 to 5913 (R. S. 4242, 4243), relating to building of partition fences, contemplate a continual proceeding; hence, the notice required by Gen. Code 5910 is sufficient without giving any further notice, and injunction will not lie to prevent acceptance of bids for construction because no separate notice was given of sale to lowest' bidder.</p> <p>[Syllabus approved by the court.]</p>

<p>NEGLIGENCE — RAILROADS.</p> <p>Pedestrian, Killed at Railroad Crossing, Having Unobstructed View of Track for 1200 Feet, is Guilty of Negligence Precluding Recovery Notwithstanding Dangerous and Unlawful Speed of Train.</p> <p>An action does not lie against a railway company for the death of a pedestrian by being struck by a train at a crossing, where the decedent was in full possession of his sight and hearing and had an unobstructed view of the track for 1,200 or 1,500 feet, notwithstanding the train which struck him was (running at a high and dangerous rate of speed, and an ordinance was violated in so doing, and no signals were sounded, and there were obstructions along the track hut not in the line of view of the decedent.</p>

<p>CONSTITUTIONAL LAW — HEALTH—MUNICIPAL CORPORATIONS.</p> <p>1. Sewage Disposal Act Invalid for Lack of Uniform Operation.</p> <p>Act 99 O. L. 74, Sec. 1 (Gen. oCde 1251), requiring purification of sewage of municipalities and protection of streams from pollution, inasmuch as it exempts certain municipalities from its operation, is invalid for lack of uniformity within the inhibition of Art. 2, Sec. 26, of the constitution.</p> <p>2. Imposing Penalty Upon Council Members for Failure to Enact Legislation to Effect Rules of State Board of Health Invalidates Statute.</p> <p>Act 99 O. L. 74, Sec. 6 (Gen. Code 1260), imposing a penalty upon members of municipal councils and other officers for failure to perform acts required by the state board of health with respect to sewage disposal, is unconstitutional in that it is directed against a legislative body, substituting to that extent the action of the state board of health for that of the council.</p>

<p>INJUNCTION — MUNICIPAL CORPORATIONS.</p> <p>Award of Contract Enjoined for Irreconcilabiditt pF Proposals.</p> <p>Injunction lies against award of contract for a municipal improvement .under Gen. Code 4328, where the specifications were impossible of enforcement and the bidders were not made aware of the construction which would be placed upon the specifications in determining which was the lowest and best bid.</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon the following authorities: Capelli v. Hondero, 123 Cal. 324 [55 Pac. Rep. 1057]; Farley y. Bryant, 32 Me. 474; Bodwell v. Heaton, 40 Kan. 36; Kilbourn y. Fury, 26 Ohio St. 153; Warehouse Co. y. Ozment, 132 N. C. 839 [44 S. E. Rep. 681] ; Gephart v. Belleman, 12 Dec. 133; Bush v. Hicks, 60 N. Y. 298; Gillespie v. Moon, 2 Johns. Ch. (N. Y.) 585 [7 Am. Dec. 559] ; Winnipisseogee Lake Cotton & W. Mfg. Co. Y. Perley, 46 N. H. 83; Knapp v. White, 23 Conn. 529; Wood y. Hubbell, 10 N. Y. 479; Baxter, In re,' 152 Fed. Rep. 137; Park Bros. & Co. v. Blodgett & Clapp Co., 64 Conn. 28 [29 Atl. Rep. 133] ; Watson Coal Co. v. Casteel, 68 Ind. 476; Grymes v. Sanders, 93 IT. S. 55 [23 L. Ed. 798]; Stearns v. Beckham, 31 G-ratt. (Va.) 379; Williamson v. Moore, 13 Dec. Ee. 19 (2 Dis. 30); Hill v. Bush, 19 Ark. 522; 2 Pomeroy (3 ed.) 856; Shappirio v. Goldberg, 192 U. S. 232 [24 Sup. Ct. Eep. 259; 48 L. Ed. 419]; Farrell v. Bouck, 61 Neb. 874 [86 N. W. Rep. 907]; Farrell v. Bouck, 60 Neb* 771 [84 N. W. Rep. 260]; Keith v. Brewster, 114 Ga. 176 [39 S. E. Rep. 850] ; Byers v. Chapin, 28 Ohio St. 300; Crist v. Dice, 18 Ohio St. 536; Hayes v. Skidmore, 27 Ohio St. 331; Anderson v. Tighe, 57 Term. (10 Heisk.) 299; Crowe v. Lewin, 95 N. Y.' 423; Barfield v. Price, 40 Cal. 535; Coons v. North, 27 Mo. 73; Belknap v. Sealey, 14 N. Y. 143 [67 Am. Dee. 120] ; Paine v. Upton, 87 N. Y. 327 [41 Am. Rep. 371]; Rowley v. Flannelly, 30 N. J. Eq. 612; Megie v. Bennett, 51 N. J. Eq. 281 [27 Atl. Rep. 917] ; Irwin v. Wilson, 45 Ohio St. 426 [15 N. E. Rep. 209]; Jamaica v. Hart, 52 Yt. 549; Cowell v. Springs Co. 100 U. S. 55 [25 L. Ed. 547]; Oregonian Ry. v. Railway <& Nav. Co. 22 Fed. Rep. 245; Oregonian Ry. v. Railway & Nav. Co. 27 Fed. Rep. 277; Mao-met v. State, 45 Ohio St. 63 [12 N. E. Rep. 463] ; State v. Baker, 55 Ohio St. 1 [44 N. E. Rep. 516] ; Cincinnati v. Con-nor, 55 Ohio St. 82 [44 N. E. Rep. 582]; Thomas v. State, 76 Ohio St. 341 [81 N. E. Rep. 437; 10 L. R. A.. (N. S.) 1112; 118 Am. St. Rep. 884]; Douglass v. Pike Co. 101 IT. S. 677 [25 L. Ed. 968] ; Ohio Life Ins. Co. v. Debolt, 57 U. S. (16 How.) 416 [14 L. Ed. 997]; Gelpecke v. Dubuque, 68 U. S. (1 Wall.) 175 [17 L. Ed. 520]; Cincinnati, W. <& U. Ry. v. Cttoiton Co. (Cornrs.) 1 Ohio St. 77; Strang, Ex parte, 21 Ohio St. 610; State v. Gardner, 54 Ohio St. 24 [42 N. E. Rep. 999; 31 L. R. A. 660] ; Poston v. Jones, 2 Ired. (N. C.) Eq. 350; Cheairs v. Coats, 77 Miss. 846 [28 So. Rep. 728; 78 Am. St. Rep. 546] ; Forbus'v. Collier, 7 Dec. Re. 331 (2 Bull. 122) ; Crawford v. Jooies, 54 Ala. 459.</p>

<p>PLEDGES — PRINCIPAL AND SURETY.</p> <p>1. Purchase by Pledgee oe Pledged Property at Other than Public Sale does not Change Pledge Relation.</p> <p>A pledgee’s sale in his private office upon notice only to a limited number of persons is not a public sale, and in the absence of express agreement, the pledge is not terminated by his bidding off the property.</p> <p>2. Certificate of Sale by Pledgor to Pledgee after Payment by Surety of Judgment Secured by Pledge does not Defeat Subrogatory Rights of Surety in Property Pledged.</p> <p>A certificate of sale of pledged property to pledgee as purchaser at’ other than public sale, made by pledgor subsequent to payment by surety of judgment secured by pledge, does not defeat surety’s right of subrogation in the pledged property prescribed by Gen. Code 12194.</p>

<p>INTOXICATING LIQUORS.</p> <p>Courts Take Judicial Notice of the Result of a Local Option Election in Prosecution for Violation Thereof.</p> <p>In a prosecution for selling intoxicating liquors in violation of Gen. Code 13225, a trial judge may take judicial notice of the holding of an election in the county and the result thereof; hence a conviction will not be set aside for failure to specifically prove the fact of such election and its result.</p>

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

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

<p>INSURANCE — RECEIVERS.</p> <p>1. Créditos, Having Leave, may Assert Claim by Proper Motion in Action for Receiver of Insolvent Corporation.</p> <p>In an action against an insolvent corporation for a receiver and tbe winding up of its affairs, a creditor may come in by leave-of court and assert bis claim by a motion in proper form.</p> <p>2. Receiver is Chargeable with Cost of Insurance for Balance or Term of Policy for which Premium Note Previously Given.</p> <p>Where a promissory note is given for insurance, it does not constitute payment of tbe premium, but during tbe term of tbe insurance is a mere evidence of indebtedness arising under a contract not yet completed; and where a receiver comes in and takes possession of tbe property covered by tbe insurance, be' is chargeable with tbe cost thereof for tbe Remainder of the term tbe policies have to run.</p>

There was a recovery below by the defendant in error in this ease of $2,500, which was reduced to $2,000 in the court below.

<p>APPEAL — DIVORCE AND ALIMONY.</p> <p>1. Extreme Cruelty and Habitual Drunkenness before Defendant’s being Adjudged Insane Sufficient Grounds for Divorce.</p> <p>A petition for divorce against an insane defendant, setting forth extreme cruelty and habitual drunkenness, for more than three years prior to defendant’s being adjudged insane and committed to a state hospital, states grounds sufficient for granting divorce.</p> <p>2. Appeal Lies to Order Dismissing Divorce Petition Alleging Grounds Accruing Prior to Defendant’s Insanity Decreep.</p> <p>Appeal, b-ut not error under Gen. Code 12002, lies to an order vacating the appointment of a trustee for an insane defendant and dismissing, without hearing on the merits, a petition for divorce alleging accruing prior to insanity decreed. ’</p>

<p>APPEAL — MUNICIPAL CORPORATIONS.</p> <p>Proceedings to Detach Real Estate erom Municipalities are not Ap- • PE ALABLE.</p> <p>Proceedings to detach unplatted farm lands from municipalities, provided for by Gen. Code 3678, 3579, aTe not civil actions appealable under Gen. Code 12224.</p>

<p>INFANTS — NEGLIGENCE—WITNESSES.</p> <p>Infant Suing by Next Friend for Tort is Incompetent to Testify Against Imbecile Defendant.</p> <p>An infant, in an action by his next friend for the recovery of damages on account of personal injuries received, is the party plaintiff under Gen. Code 11247 and, imbecility of the defendant having intervened, he is incompetent to testify under Gen. Code 11493. Nor is he rendered competent as a witness by the exception in Gen. Code 11495, as to actions causing death.</p>

<p>NEGLIGENCE — STREET RAILWAYS.</p> <p>1. “Fairly” as Applied to Raising a Presumption Means “Reasonably” not “Clearly.”</p> <p>“Fairly” in a charge instructing the jury “that if the evidence introduced by the plaintiff * * * fairly raises a presumption * * * that he was guilty of contributory negligence, ■then the burden is on him,” means “reasonably” or “measurably” rather than “clearly.” t</p> <p>2. Charge Defining Ordinary Care to be Doing Everything in Power to Avoid the Negligence Complained of is Prejudicial.</p> <p>A charge to the jury, in an action against a street railway eompany for injuries sustained by a pedestrian struck by a car at a street crossing, instructing that “if you find from the evidence that the defendant company through its servants used ordinary care, doing everything in its power to avoid an accident, plaintiff cannot recover,” instructs the jury in effect that ordinary care oonsisted in doing everything in its power to avoid the accident and is prejudicial, notwithstanding ordinary care is properly defined in another part of the charge.</p> <p>S. Charging that Rule of Company as to Passing Cars should be." Considered in Determining Ordinary Care is not Prejudicial.</p> <p>A charge instructing jury to determine whether street car employes used ordinary care in approaching a street crossing at which an accident happened, including the rule of the company which orders that when passing standing cars the gong he rung: and ears under complete control, does not mean that ordinary care required the company to leave its car under complete control hut that the company rule so required, and therefore the charge is not prejudiced.</p> <p>4. Pedestrian Passing Back of One Car onto Tracks on- Which Cars: Operate in Opposite Direction Without Stopping to Look and> Listen Contributes to His Injury.</p> <p>A pedestrian walking from behind a street ear going in one direction to and on tracks on which cars go in the opposite-direction without 'stopping to look and listen, on which he was-struck by a rapidly approaching car before he could step back: out of its way is guilty of negligence precluding recovery.</p> <p>[Syllabus approved by the courtj</p>

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

<p>RAILROADS — STREET RAILWAYS.</p> <p>1. Manner and Mode of Electric Road Crossing Steam Railroad.</p> <p>It is the policy of the statutes providing for the manner of one . railroad’s crossing another to require crossing other than at grade, where practicable from an engineering view and reasonable as a business proposition; and where an electric road seeks to cross a steam road and an overhead crossing is, under all the circumstances, practicable and reasonable .for both companies, the same will be ordered.</p> <p>2. Apportionment of Cost of Crossing.</p> <p>In apportioning the cost of an overhead crossing between an electric railroad company and a steam railroad company the steam company, having been first established, should be made to share the cost of constructing only that part of the crossing that is necessary to provide a way and support for the tracks of the crossing railroad; the cost of ties, rails, ballast and the like, must all be borne by the company crossing over.</p> <p>[Proof of this decision and syllabus was submitted to Judge Parker and corrected. — Ed.]</p>

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

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

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

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

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

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

<p>BILLS AND NOTES — GUARANTY.</p> <p>Guarantor of Note Secured by Warehouse Receipts , May Rely on Recital thereof as to the Property Represented.</p> <p>The guarantor of a promissory note secured by warehouse receipts pledged as collateral may rely on the quantity and quality of the property set out in the receipts, and is not limited to the actual amount found to be on hand when the sale is made.</p>

Plaintiff’s intestate, a child four years of age, was killed by being struck by a traction car at the Warsaw and Windfield .avenues crossing. The jury found in favor of the traction company.

<p>ATTACHMENT — PROCESS.</p> <p>1. Affidavit for Attachment against Corporation as Nonresident of County not Defective though a Foreign Corporation.</p> <p>An affidavit averring that defendant corporation is nonresident of the 'county, prescribed by Gen. Code 10253 as a ground for attachment, is not defective in omitting to aver defendant’s failure to comply with the reouirements of Gen. Code 183 as to the filing by foreign corporations of certain statements with the secretary of state.</p> <p>2. Separate Returns on Attachment and Summons Reading Together Constitute Lawfui. Service of Summons.</p> <p>Separate returns on an order of attachment and summons, issued together under Gen. Code 10262 and so returned by the constable, may be read and construed together as showing a lawful service of summons within the meaning of Gen. Code 10244.</p> <p>3. Service mat be Had on Secretary of Nonresident Corporation as “Managing Agent” if no Other Chief Officer be Pound in County.</p> <p>Service in attachment against a nonresident corporation, to whom debts are owing in the county as prescribed by Gen. Code 112-76, may be had on a secretary or agent thereof under Gen. Code 10238 if no other chief officer can be found in such county.</p> <p>[Syllabus approved by the court.]</p>

<p>APPEAL — ASSESSMENTS—DITCHES—INJUNCTION.</p> <p>1. Appeal Does not Lie to Correct Ditch Assessment'as Unjust and Unreasonable.</p> <p>Neither R. S. 4533, 4536, 4539 (Gen. Code 6625, 6628, 6631) nor any other statute 'makes provision for an appeal by a property owner, complaining that, an assessment levied on his land for the improvement of a township ditch is unjust and unreasonable in that it is grossly in excess of the benefits which he will receive from the improvement.</p> <p>2. Absence oe Provision for Bill of Exceptions Prevents Error Proceedings to Review Ditch Assessment.</p> <p>Nor will error lie in such a case under R. S. 4491, 4560, 6708 (Gen. Code 6500, 6646, 12241) inasmuch as there is no provision for a bill of exceptions, and even if the transcript of the record of the township trustees were brought up, it would be of no assistance in determining the question whether the assessment exceeds the benefits.</p> <p>3. Injunction Lies to Correct Ditch Assessments Exceeding Benefits.</p> <p>Injunction will lie where the complaining owner alleges that the assessment laid upon his land is grossly in excess of the benefits conferred, notwithstanding it is directed against the action of a judicial board, and in such a case a court of equity may do justice even though no error is found in the proceedings.</p>

The plaintiff filed a petition in the common pleas court, alleging that the defendant is an Ohio corporation, organized for the purpose of conducting the business of an innkeeper, and was on March 12, 1905, and still is operating, the Auburn Private Hotel, in Cincinnati, for the entertainment and accommodation -of the general traveling public; that on said date the plaintiff was a guest at the defendant’s hotel, and placed his wearing apparel in the care and custody of the…

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

<p>Error to common pleas court.</p> <p>The plaintiff was the owner of property on Martin street, Cincinnati, and alleged that the defendants represented to him that they had a purchaser for $1,000, and the property was sold at that figure. Plaintiff alleged that he subsequently learned that the real price paid to defendants for the property was $1,200, and he sued for the $200 difference.</p>

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

<p>EVIDENCE — INSURANCE.</p> <p>Discrepancies between Application for Insurance and Copy with Policy Preclude Admission as Evidence of Defense.</p> <p>Discrepancies in matters of substance between the original application for life insurance and the copy of the application returned with the policy appearing, they are properly excluded as evidence of defense under Gen. Code 9389 (R. S. 3623).</p>

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

<p>CORPORATIONS.</p> <p>Reissue of Lost Certificate of Stock Refused Since Equitable Title is in Another Than Claimant of Naked Legal Title.</p> <p>While the fact that a lost certificate of stock, standing in the name of the plaintiff ■ seeking a reissue thereof, would in the absence of other evidence be conclusive as to his title, an order of court for such a reissue will be reversed as against the weight of the evidence, where it appears that the evidence upon which the order was based showed that while the naked legal title was in the plaintiff the equitable title was in a corporation, of which he was a member.</p>

<p>CARRIERS — RAILWAYS.</p> <p>Railway Company not Liable foe Failing to Aid Passenger Injured by Falling from Train not Far from Passenger’s Home Station.</p> <p>A railway company is not guilty of negligence in failing to back up a passenger train and render aid to a passenger who had, a short distance from the station to which he had taken passage, fallen off from the train and had both legs cut off. Since the brother and friends living in the same town not only knew of the accident before the trainmen, but were taking active measures for the relief of the passenger, railway employes were not required to anticipate that the brother and friends would be less able than the company to procure timely aid and surgical assistance.</p>

Petition of plaintiff to enjoin the operation of hammers and heavy machinery in defendant’s factory adjoining her residence was allowed in the court below. '

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

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

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

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

<p>Application for modification of judgment of disbarment..</p>

<p>GUARANTY — SALE.</p> <p>Guaranty of Sale Adjudged not Set Aside for Breach of Collateral Contract.</p> <p>A judgment upon a guaranty of payment endorsed on a contract of sale of bar furniture will not be set aside for error with respect to only one of two issues joined relative to an alleged failure to comply with a separately written agreement to furnish a union label to accompany the furniture; since the jury’s general verdict may be taken to imply either that the latter agreement was executed and delivered subsequently to the endorsement or that such promise was complied with by tender of a union label that had been in the seller’s possession some time.</p> <p>[Proof of this decision was submitted to Judge Henry and corrected. — Ed.]</p>

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

<p>NEGLIGENCE.</p> <p>Instructing that Plaintiff mat Recover if Preponderance of Evidence Shows Him without Fault, Insufficient.</p> <p>An instruction in an action for damages based on a tort, that the plaintiff may recover if it appears from a preponderance of the evidence that he was without fault is erroneous, unless predicated upon proof that the accident was due to the negligence of the defendant.</p>

The defendant in error recovered a judgment below for $500 as damages on account of the striking of a wagon, which he was driving on Eastern avenue, by a car which came up from behind.

An action was brought in the court below for balance of freight charges due upon a bill of goods shipped to defendants from Alabama to Cincinnati. Part of the freight had been prepaid, according to contract, but owing to an error made by a freight clerk at the place of shipment, the freight charge was $20.15 less than the regular tariff rates. Defendants accepted the goods, knowing of and refusing to pay the additional charges.

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

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

The petition alleges that the relator, Benjamin Gaines, is a resident of the city of Cincinnati, in the county of Hamilton and state of Ohio, and is a duly matriculated student of the Ohio tyledieal College of the University of Cincinnati, where he has been pursuing his studies for ‘four years.

<p>WILLS — DESCENT AND DISTRIBUTION — WORDS AND PHRASES.</p> <p>1. “Heirs” not a Word of Limitation, when.</p> <p>A testator whose only issue was two sons, both of whom survived him, by “item 1” of his will devised to them certain real estate, and by “item 3” provided that “if either of my said sons should die before the decease of my said wife, then the share of said deceased son shall go to his heirs”; one of the sons died before the mother. Held, -«the word “heirs” in “item 3” is. not a word of limitation, and upon the death of the son his share of the realty went to his surviving brother. Whether such share would have gone to the children of the deceased brother under the rule in Shelly’s case, quaere.</p> <p>2. Vested Remainder under a Will Vests, when.</p> <p>A vested remainder in fee simple in each of the two sons of testator, which either may convey during his lifetime' subject to the life estate of the mother, under a will devising all the estate to the wife if she survives testator, and after her death the property to go to the two sons.</p> <p>8. Word “Shares” Refers to Residuary Estate, when.</p> <p>The word “share” as used by the testator m “item 3” of the will involved in this case, refers to the residuary estate mentioned in item 2, and not to the specific devises made in item 1.</p>

Ellis B. Gregg, as guardian, filed an application in the probate court for allowance of compensation as attorney for himself as guardian in defending litigation concerning real estate in which his wards had an interest, which litigation was not then and is not yet terminated.

<p>Cited and commented upon the following authorities:</p> <p>Harp v. Raihvay, 118 Fed. Rep. 169: Northern Pac. Ry. ' v. Washington Territory, 142 U. S. 492 [12 Sup. Ct. Rep. 283; 35 L. Ed. 1092] ; Atchison, T. & 8. F. By. v. Bailway, 110 U. S. 667 [4 Sup. Ct. Rep. 185; 28 L. Ed. 291] ; Missouri Pac. By. v. Nebraska, 164 U. S. 403 [Í7 Sup. Ct. Rep. 130; 41 L. Ed. 489] ; People v. Bailway, 57 111. 436.</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon the following authorities: McClain, Crim. Law Sec. 469; Shinn v. State, 64 Ind. 13 [31 Am. Rep. 110] ; Thomas v. State, 91 Ala. 34 [9 So. Rep. 81] ; Hanson v. State, 43 Ohio St. 376 [1 N. E. Rep. 136] ; Sherman v. State, 2 Circ. Dec. 691 (4 R. 531); Arehbold, Crim. Pr. & PI. 417; Bishop, New Crim. Law Sec. 1175; State v. John, 59 N. C. (5 Jones L.) 163; Chitte, Crim. Law p. 804; Hughes, Criin. Law & Proced. See. 763; 1 Hales, Plead, of the Crown 534; Clark, Crim. Law p. 285; Fanning v. State, 66 Ga. 167.</p> <p>Cited and commented upon the following authorities: Turner v. State, 1 Ohio St. 422; Hale, p. 11, Chap. 44, p. 517; McClain, Crim. Law Sec., 469; Hanson v. State, 43 Ohio St. 376 [1 N. E. Rep. 136] ; State v. Miller, 53 Kan. 324 [36 Pac. Rep. 751] ; Shinn v. State, 64 Ind. 13 [31 Am. Rep. 110]; Thomas v. State, 91 Ala. 34 [9 So. Rep. 81] ; 3 Archbold, p. 417; 1 Wharton, Crim. Law (10 ed.) Sec. 854; 1 Russell, Crimes p. 874; Thomas v. State, 91 Ala. 34 [9 So. Rep. 81]; MoNeal v. State, 11 Dec. Re. 782 (29 Bull. 185) ; 2 Roscoe, Crim. Ev. (8 ed.) 1161; Rapalje, Larceny p. 637; 3 Greenleaf, Evidence (16 ed.) Sec. 225; Clark, Crim. Law p. 285; Sherman v. State, 2 Circ. Dee. 691 (4 R. 531) ; Long v. State, 12 Ga. 293; People v. Glynn, 54 Hun. 332 [7 N. Y. Supp. 555] ; State v. Carr, 43 Iowa 418; State v. John, 50 N. C. (5 Jones L.) 163; States. Broderick, 59 Mo. 318; Clements v. State, 84 Ga. 660 [11 S. E. Rep. 505; 20 Am. St. Rep. 385] ; State v. Calhoun, 72 Iowa 432 [34 N. W. Rep. 194; 2 Am. St. Rep. 252].</p>

<p>ARBITRATION AND AWARD — LIMITATION OF ACTION.</p> <p>Positive Agreement to Forbear Suit Essential to be Shown Tty Stop Running of Statute of Limitations.</p> <p>Evidence of some conversation between the parties to the effect, that if they could not settle their differences they woulci arbitrate, does not constitute evidence of a positive agreement to forbear suit on a condition named, and does not preserve, the claim against the running of the statute of limitations.</p>

<p>CRIMINAL LAW.</p> <p>In Prosecution for Being a Known Thief Facts upon which Charge is Based Need not be Averred. '</p> <p>In a prosecution for being a known thief, it is sufficient to charge the defendant with being then and there a known thief without averring facts upon which the charge' is based.</p>

<p>LANDLORD AND TENANT — FORCIBLE ENTRY ANDDETAINER.</p> <p>1. Tenancy Undek Written Lease eor Term oe Years Extended by Parol is Year to Year.</p> <p>Tenancy begun under a written lease for term of years, with privilege of renewal for the same term, and extension of term, by verbal lease for another like term, makes possession referable to former written lease and becomes one from year to year.</p> <p>2. Jurisdiction op J. P. in Forcible Entry and Detainer Extends to-Tenancy prom Year to Year.</p> <p>Justices of the peace have jurisdiction in forcible entry and detainer under R. S. 6600 (Gen. Code 10449) in cases of tenancy from year to year.</p>

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

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

This action originated .in the death of a traction ear conductor who was killed by a runaway car coming down the grade behind him and colliding with his car while he was adjusting the trolley thereon. On a former trial plaintiff recovered a judgment against the traction company; this judgment was reversed by the circuit court and error was prosecuted to the Supreme Court for error by the circuit court in refusing to render judgment for the traction company.

<p>PLEADING — RESCISSION.</p> <p>Failure of Consideration for Wife’s Release of Interest in Husband’s Lands not Ground for Rescission.</p> <p>Failure of consideration for a wife’s release of interest in ber husband’s lands is not ground for setting aside deeds thereof; inadequacy of consideration at time deeds were executed, her reliance upon misrepresentation, mutual mistake, fraud or undue influence must be averred to effect rescission.</p>

<p>Error to’ common pleas court.</p>

<p>Error to coifrmon pleas court.</p> <p>Cited and commented upon the following authorities: Bailey v. Berry, 3 Dec. Re. 483 (8 Am. L. Reg. 270) ; Button v. Eyre, 6 Taun. 289; Willis v. Be Castro, 4 Com. B. 216; Price v. Barker, 4 Ell. •& Bl. 777; Bateson v. Gosling, 7 L. R. C. P. 9; Cooley, Torts (3 ed.) Sec. 161, p. 237; Chicago v. Smith, 95 111. App. 335; Chicago v. Babcock, 143 111. 358 [32 N. E. Rep. 271] ; West Chicago St. By. v. Piper, 165 111. 325 [46 N. E. Rep. 186] ; ElUs v. Esson, 50 Wis. 138 [6 N. W. Rep. 518; 36 Am. St. Rep. 830] ; Snow v. Chandler, 10 N. H. 92 [34 Am. Dee. 340] ; Bean v. New Ball, 8 Term. 168, 170; O’Shea v. Railway, 105 Fed. Rep. 559; Carey v. Bilby, 129 Fed. Rep. 203 [63 C. C. A. 361] ; Line v. Nelson, 38 N. J. Law 358; Ellis v. Bitzer, 2 Ohio 89 [15 Am. Dec. 534].</p>

<p>MUNICIPAL CORPORATIONS — PRINCIPAL AND SURETY.</p> <p>Sureties of Defaulting Contractor Compelled to Pay Difference Between Bids of Principal and Next Lowest Bidder Estopped to Complain.</p> <p>Sureties of f. defaulting contractor for public work, in the absence of abuse of discretion shown, cannot complain that the contract was relet to next lowest and best bidder and the loss thereby sustained taken as the measure of their liability.</p>

<p>ERROR.</p> <p>Record on Prosecution of Error to Charge to Jury Should Show Entire Instructions on Subject Complained of.</p> <p>Record on error prosecuted to charge to jury should show that the charge as embodied therein embodies all'that the court said to the jury on the subject complained of.</p>

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

<p>NEGLIGENCE — PLEADING—RELEASE.</p> <p>1. Release for Personal Injuries Voidable but not Void Established Requires Instructed Verdict for Defendant.</p> <p>Where, in an action for damages resulting from injuries alleged to have been sustained through the negligence of the defendant, the answer sets forth as a defense that the plaintiff in writing released the defendant from all claims resulting from such alleged negligence, and the reply sets forth facts which, if established, would render such release voidable, and further fact which, if established, would render such release void, and there is evidence tending to establish the facts which might render . the release voidable only, but no evidence tending to establish the facts necessary to be established to render the release void, it is the duty of the court, on motion of the defendant, to instruct the jury to return a verdict for the defendant.</p> <p>2. One Dollar Consideration hor Release.</p> <p>One dollar is sufficient consideration, in law, to sustain such release.</p> <p>3. Voidable Release cannot be Pleaded in Reply to Defense of Release Executed.</p> <p>Pacts that, if established, would render the release void, may be pleaded in the reply by way of avoidance of the defense of release; but if the facts would render the release voidable only, and not void, the plaintiff cannot avail himself thereof by way of reply.</p> <p>4. Cancellation of Voidable Release for Injuries Received not Obtainable in Reply to Defense Interposed.</p> <p>If the release is voidable only and not void, the plaintiff cannot maintain his action while it stands uncanceled, and he cannot seek its cancellation in a reply but must do so by petition in a suit in equity for that purpose only, or as a cause of action in the same suit in which he seeks to recover damages for the injury. Perry v. O’Neil & Oo. 78 Ohio St. 200, followed.</p>

<p>CORPORATIONS — RESCISSION.</p> <p>1. Retention of Real Estate, Acquired by Corporation Under Ultra Vires Contract, Justified by Necessities of Company, not Rescinded.</p> <p>Retention of real estate, acquired by a corporation under an ultra vires I contract and in compromise of pending suits, being justified by the necessities of the company, the agreement will not be rescinded and reconveyance ordered in the absence of fraud or bad faith.</p> <p>2. Contract Designating Purchaser “I” Signed with Corporate Name by its President, That of Corporation.</p> <p>Contract referring to purchaser of real estate by the pronoun “I” and signed with the corporate name by its president, is the contract of the corporation.</p>

<p>MASTER AND SERVANT.</p> <p>1. Test of Master’s Liability for Negligence of One Employe Causing Injury to Another. - '</p> <p>The test of liability of a master for injury to one servant caused by negligence of another is whether the latter is placed in authority and control over the former, not whether the former was originally employed to do the act complained of, especially when such act is in furtherance of work in which both are engaged.</p> <p>2. Burden of Proving Contributory Negligence.</p> <p>Burden of proving contributory negligence put upon defendant by charge of court when no such issue is tendered is erroneous and prejudicial.</p>

<p>NEGLIGENCE — RAILROADS.</p> <p>1. Passenger in Vehicle Required to Warn Driver of Danger not Manifest to Driver, but Negligence of Driver is not Imputable-Per se.</p> <p>A passenger in a vehicle who sees or hears anything indicating danger that the driver cannot, or probably does not, see or hear, is bound to warn the driver thereof; but it is not incumbent upon the passenger to call attention to every approaching vehicle or possible peril, which is as manifest to the driver as to the passenger.</p> <p>2. Verdict not Reversed for Failure to Exclude Driver From Participation in Damages Awarded on Count of Fatal Injuries, to Wife.</p> <p>The question of a driver’s contributory negligence as a cause of' an accident not being raised by the pleadings, a reviewing court is not at liberty to hold the verdict erroneous, in that it contains no finding whereby he may be excluded from participation in the damages awarded on a count of fatal injuries to his wife? sustained in the collision which occurred with a railway train.</p>