Volume 23 — Ohio Nisi Prius Reports, New Series

<p>JURISDICTION OF AN OHIO MUNICIPALITY BELOW LOW WATER MARK OF THE OHIO RIVER.</p> <p>Steamboat Lying at Municipal Wharf Below Low Water Mark in the Ohio River—Subject to Municipal Smoke Abatement Ordinance— Constitutionality of the Cincinnati Ordinance—Police Power and Interstate Commerce—When Officers and Employees of a Corporation May be Held Criminally Liable for Creation of a Nuisance.</p> <p>1. A municipal ordinance prescribing a test for determining dense smoke, declaring that the emission or escape of smoke within the city of Cincinnati of a greater degree of darkness from any smoke ■stack of any boat, etc., to be a nuisance punishable by fine and imprisonment, is constitutional and valid.</p> <p>2. A boat anchored in the Ohio river,. opposite the Cincinnati shore, is within the municipal boundaries without regard to whether it is above or below low water mark; and such a boat is therefore within the legislative, executive and judicial jurisdiction of the city of Cincinnati subject to the -paramount jurisdiction of the ■federal government over adm-irality and interstate commerce subjects and the concurrent jurisdiction of Kentucky.</p> <p>3. The ordinance in question comes within the police power of the state, does not regulate interstate commerce and only affects it incidentally, does not conflict with the act of Congress regulating steam vessels, and is therefore operative over the waters of the Ohio river opposite the Cincinnati shore.</p> <p>4. To hold the officers or employees of a corporation criminally liable for a nuisance created in the conduct of the corporate business, it must appear that the nuisance was created in the careful conduct of the business in the usual and customary way, or that the officer or agent knowing of the existence of the nuisance and having power to abate it, allowed it to continue.</p>

<p>ILLEGAL COMMITMENT BY A NOTARY FOR CONTEMPT.</p> <p>Depositions—Refusal of Witness to Answer Questions Propounded by a Notary Not Necessarily Contempt—Power of Notary to Commit for Refusal Limited to Refusal to Answer Proper Questions or Produce Papers Competent as Evidence—Examinations under Section 11497.</p> <p>A plaintiff, summoned to give Ms deposition in an action for damages for alienation of affections, is unlawfully committed for contempt in refusing to answer as to the source of information upon which he has based his suit.</p>

<p>PROCEDURE OF COUNTY COMMISSIONERS AND TOWNSHIP TRUSTEES WITH REFERENCE TO IMPROVEMENT OF A HIGHWAY.</p> <p>Roads—improvement of with State Aid—Liability of Townships to County for Share of Cost—Apportionment among Abutting Property Onwers—Construction of Amended Section 1200.</p> <p>1. Section 1200, General Code, as amended in 103 O. L., 455, is permissive in form and substance and does not compel the county commissioners to require of township trustees the procedure therein mentioned as a condition precedent either to the construction of the proposed improvement or to the liability of 'the township and the abutting property owners upon completion of the improvement.</p> <p>2. Where a highway improvement has been made with state aid granted on application of the county commissioners, in accordance with highway laws as amended in 103 O. U., 449, etc., the township or townships through which said improvement passes are under a liability to the county for the townships’ share of the cost as defined in Section 1208, General Code (103 O. L., 456), and the trustees thereof are, in such cases, required to apportion the amount to be paid by the abutting property owners according to the benefits accruing to the owners of the land so located, unless such share 'has been waived and assumed by the county commissioners upon a resolution adopted by them as provided in Section 1210-1 General Code (103 O. L., 457).</p>

<p>INHERITANCE TAX ON PROPERTY FOUND IN OHIO BELONGING TO A NON-RESIDENT DECEDENT.</p> <p> Taxation—Protection Accorded to the Personal Property of a HomBesident Decedent—Renders it Subject to the Ohio Inheritance Tax-Some of the Items of Personalty Liable to Said Tax. </p> <p>The decedent was a citizen and resident of the state of Kentucky, doing 'business in Cincinnati, Ohio. In fixing the inheritance tax on the succession to property of said decedent found in Ohio—</p> <p>Held: That all real estate belonging to the decedent located in Ohio, together with the business carried on by him, including the machinery and equipment, book accounts and bank account incident thereto; the private account of the decedent in a savings bank; and the Liberty bonds and stocks of Ohio corporations and corporations under the laws of states other than Ohio, found in his safety deposit box in Cincinnati, are all taxable under the inheritance laws of Ohio.</p>

<p>DISEASE RESULTING FROM DEFECTIVE APPLIANCES NOT AN OCCUPATIONAL DISEASE.</p> <p> Workmen’s Compensation—Disease Developed by Breathing Acetylene Gas—Compensation Recoverable. </p> <p>1. Where, in the operation of a factory disease is developed by defective appliances, it is not produced in a natural and ordinary way and does not fall within the category of occupational disease.</p> <p>2. An employee who has suffered injury from the inhalation of acetylene gas, due to a defective hose connection, is entitled to compensation under the workmen’s compensation act on the theory that his injury was due to an accident suffered in the due course of his employment.</p>

<p>DENIAL OF IMPAIRMENT OF EARNING CAPACITY GROUND FOR APPEAL.</p> <p> Workmen’s Compensation—Construction of Section 1465-90—Relating to Appeal from Final Action hy the Industrial Commission. </p> <p>Appeal lies from a denial by the Industrial Commission of compensation for injuries on the ground^ that the earning capacity of tht claimant is no longer impaired.</p>

<p>TITLE BY ADVERSE POSSESSION TO A RIGHT OF WAY.</p> <p> Right of Way for Use. as Street—May be Acquired by Adverse Possession—Recitals of Deed—AcMtal Possession by Claimant Sufficient Notice to Prospective Purchaser—Conveyance by a Religious Society Without Authority of Court—Open to Attach by Member of Society Only. </p> <p>1. The title and right of possession to a right of way may be acquired by adverse possession.</p> <p>2. Where a part of a right of way is specifically described in a deed as appurtenant to the land conveyed, the grant is thereby limited to that part, although formerly a more extended right was attached as an appurtenance. Especially is this so when neither the necessity, nor the convenience of the latter longer exists.</p> <p>3. Actual possession by an adverse claimant is notice to a prospective purchaser of such equitable title as the one in possession may prove to have.</p> <p>4. The want of an order of court under Section 10'051, General Code, authorizing a religious society to convey real estate can not be taken advantage of by a person not a member of the society. The transaction is at most voidable, subject to direct attack by those only who had a right to object at the time and upon grounds on account of which the order would probably have been denied.</p>

<p>DETERMINATION AS TO THE TIME TO WHICHJTHE WORDS “IN CASE OF DEATH WITHOUT ISSUE” REFER.</p> <p>Wills—Life Estate Created—Property to Then Co to a Designated Person—But in Case of Death Without Issue Then to Certain Heirs— Action to Quiet the Title to Said Property.</p> <p>Where a testatrix by her will devises real estate to A for life and after-wards to B in fee simple, but in case of the death of B without issue to the next of kin of the testatrix, the words “in case oi death without issue” refer to the death of B without issue during the lifetime of A, and if B survives A her title becomes absolute in fee simple, unless a contrary intent is evinced by the language of the will.</p>

<p>INVALIDITY OF THE CLEVELAND ORDINANCE RELATING TO EMPLOYMENT OF GUARDS DURING INDUSTRIAL DISTURBANCES.</p> <p> Strikes—Invalid Restrictions on Employment of Guards—Cleveland Ordinance in Violation of Constitutional Guaranties. </p> <p>The Cleveland ordinance, forbidding the employment of guards during industrial disturbances except under the restrictions set forth in the opinion, is in violation of rights which are fundamental and inalienable and which can not be abridged, or made difficult or impossible of exei’cise by the notions or opinions of a municipal director of public safety.</p>

Statement of counsel: The note involved in the case was in the following words and figures: ¡ j “Mansfield, Ohio, Dec. 12 19Í3. “$560.00 “One year after date, without grace, we jointly and severally as principal debtors promise to pay to John A. Arras or order Five Hundred and sixty dollars with interest payable semiannually at six per cent. “ (Also containing regular cognovit power.) “('Signed) Joseph Frederick Kibler, “Mary Kibler. “'This note secured by mortgage.” The…

<p>PERPETUAL LEASE NOT A BAR TO PARTITION.</p> <p> Partition—Not Barred Toy a Perpetual Lease—Possession of the Lessee is the Possession of the Landlord—Bis Rights are not Affected t>y a Change of Landlords. </p> <p>Partition of real property may be compelled at the suit of one- of the tenants in common of the fee, notwithstanding the existence of a perpetual leasehold in the property.</p>

<p>IMPRISONMENT FOR FAILURE TO PAY TAXES.</p> <p> Constitutional Laio—Validity of the Cincinnati Occxipational Tax Ordinance—Provision of Fine and Imprisonment for Failure to Pay—Not in Contravention of the Constitutional Inhibition Against Imprisonment for Debt. </p> <p>Tbe duty of a citizen to pay taxes legally imposed is a public duty owing to the sovereign, the violation of which is identical with a breach of any other law prescribing rules of conduct, and a penalty of arrest or fine for failure to pay such a tax is not in violation of the constitutional provision against imprisonment for debt.</p>

<p>WIDTH OF THE NATIONAL PIKE AND ABUTTING RIGHTS.</p> <p>National Pike^-Width of—Abutting owner's Title to the Middle of the Road—Encroachment on Roadway does not Give Title by Adverse Possession—Change in Location of Telegraph Poles May not be Made Without Compensation to Abutting Owner Where a New Burden Would be Imposed,</p> <p>1. Eighty feet was fixed as the width of the roadway, by the federal act of 1820 providing for the survey of the Cumberland Road, later known as the National Pike, from Wheeling, West Virginia, westward through the states of Ohio, Indiana and Illinois, and as originality built the width of the road between Columbus and Springfield was eighty feet.' . " ’ .</p> <p>2. The federal government retains title to land until the issuance of a patent.</p> <p>3. When property was purchased from the government in 1811, but payments were not completed nor patent issued until 1825, the land then patented was subject to the right of way for the road thereafter to be located but provided for in the federal act of 1820.</p> <p>4. The abutting landowner has the title to the middle of the road, subject to the right of the public to use the same for all requirements of travel.</p> <p>5. An abutting owner, fencing in a part of the roadway not necessary for travel, acquires no right against the public by adverse possession no matter how long he has maintained his fence.</p> <p>6. The state, at any time it becomes necessary, may have the use of the entire roadway for the purposes of public travel.</p> <p>7. The appropriation of a portion of a public highway for the purposes of a telegraph line is a new use and an additional burden upon the landowners right in the road.</p> <p>8. A telegraph company whose poles and lines have occupied a certain portion of the highway for many years can not, without compensation to the abutting owner, occupy a new position which will lay a new and additional burden on such abutting owner’s interest in the roadway. ■ -</p> <p>9. The fact that the state, through its officers, has ordered a telegraph company to move its poles so that the highway may be improved does not relieve the telegraph company from such obligation.</p> <p>ID. The right of the abutting property owner to use the roadway, subject to the right of the public, is property and such right can not be materially abridged for uses other than those of public travel, without compensation, even though the injury may be slight.</p>

<p>LIABILITY FOR FAILURE TO GIVE CHILDREN OF SCHOOL AGE PROPER EDUCATIONAL ADVANTAGES.</p> <p>Parent and Child—Extent of the Education which Must he Provided for Children—Right of School Authorities to Require Vaccination— Nature of the Offense Involved in Refusal to Permit Children to he Vaccinated with Consequent Deprivation of School Advantages.</p> <p>1. The court construes Section 1645, General Code, as requiring parents to provide tbeir children with a proper education, which means an education subbstantially equivalent to that furnished by the public schools.</p> <p>2. Boards of education may exclude children from the public schools for non compliance with existing rules and regulations relating to vaccination.</p> <p>3. While the parents of children thus excluded are not liable to prosecution under the compulsory education act, such exclusion can not be pleaded as an excuse for failure to provide their children with the education required by the statute. Children so deprived of school advantages may be declared “dependent,” and any person causing or contributing to such dependency is .liable to prosecution therefor.</p>

<p>CONSENT TO SETTLEMENT FOR A WRONGFUL DEATH CAN NOT BE WITHDRAWN BY PROBATE COURT.</p> <p> Jurisdiction—Not Vested in Probate Court to Withdraw Consent to Settlement for Wrongful Death—Setting Aside of Release a Prerequisite to Action for Damages—Cancellation of Release and Action for Damages Joinable. </p> <p>1. When the probate court, under Section 10772, General Code, upon the application of a personal representative of a decedent, has consented to a settlement with the party claimed to have wrongfully caused the death of such decedent and where in pursuance of such consent the personal representative has settled for such wrongful death, such court has exhausted its power in giving its consent and can not at a subsequent date render void the agreement by withdrawing the consent already given under which the administrator entered into a valid contract of settlement.</p> <p>2. In an action for damages the defendant may plead in bar a settlement made with the consent of the probate court.</p> <p>3. Where a settlement and release has been plead by the defendant, the plaintiff; by reply, 'may aver such facts as may make the release void, but if such release is not void but only voidable, the plaintiff can not maintain his action until the release is set aside.</p> <p>4. A cause of action-for the cancellation of a release and a cause of action for damages may be joined in the same petition.</p>

Some time prior to February 2, 1920, the city of Plant City, Florida, advertised that it would receive bids for an aggregate par value of seventy thousand dollars ($70,000.00) of paving bonds of the municipality, and in the advertisement said: That each bid must be accompanied by a certified check in the sum of two per cent, of the amount of the bid to secure Ihe citj from any loss, resulting from failure of the bidder to comply with the terms of the bid, and that if the…

<p>DETERMINATION AS TO WHETHER DEATH OCCURRED IN THE COURSE OF EMPLOYMENT.</p> <p> Workmens’ Compensation—Slight Variance in Performance of a Single Duty—Not- a Bar to Recovery for Accidental Death. </p> <p>Compensation will not be denied under the workmen’s compensation act, on the ground that the decedent did not meet his death within the scope of his employment, where his. digression from the usual method of procedure consisted in going to call upon a customer as a guest in an automobile instead of using the horse and delivery wagon with which he had been supplied by his employer. '</p>

<p>ADOPTION OF PAPER IN WILL BY REFERENCE.</p> <p> Wills—■Adoption by.Reference of Letter of Instructions not in Existence at Time of Execution of the Will not Effective. </p> <p>1. The will itself must refer to a paper to be incorporated as being in existence at the time of the execution of the will, and in such a way as to reasonably identify such paper in the will, and in such way as to show testator’s intention -to incorporate such instrument in his will and to make it a part thereof.</p> <p>2. Such document must, in fact, be in existence at the time of the execution of the will.</p> <p>3. Such instrument must correspond to the description thereof in the will and must be shown to he the instrument therein referred to.</p>

<p>NEW CROSSINGS OF RAILWAYS AT GRADE.</p> <p> Appropriation of Railway Right-of-Way for a Grade Crossing—Public Convenience as Distinguished from Public Necessity in the Matter' of Crossings—Future Requirements of the Railway as well as of the Public Must be Considered—Policy of the State with Reference to New Grade Crossings. </p> <p>An action does not lie under the present statute for the appropriation of so much of a railway right-of-way as would be required to extend a street over the company’s tracts, and for an order for a grade crossing at that point, when the evidence goes to show that the benefit to the public from the proposed crossing would be small, the increased burden which it would cast upon the railway would be serious, the location perilous for a grade crossing because oi obstruction of the view, and that a crossing at that point would be one oi convenience rather than of necessity.</p>

<p>VALIDITY OF A CITY ANTI-INTOXICATING LIQUOR ORDINANCE.</p> <p>Constitutional Law—Municipal Ordinance Against Manufacture, Sale or Giving Away .of Intoxicatiny Liquor—Not Invalid, for Indefiniteness, When—Weight of Evidence as to Guilt of the Accused.</p> <p>1. A city ordinance making it unlawful to manufacture, sell, furnish. or give away intoxicating liquors for beverage purposes, is a valid enactment and constitutional.</p> <p>2. A conviction by the trial court will not be reversed on error because the same may be against the weight of the evidence, unless it be found that it is manifestly so.</p>

<p>PARTIAL DEPENDENCY UNDER THE WORKMAN’S COMPENSATION LAW.</p> <p> Workmens' Compensation—Delinquent Father Killed in the Course of His Employment—Dependency of Minor Children Where They Received no Support from Him—Partial Dependency Established. </p> <p>A boy thirteen years of age, who received little or no aid from father and was supported in part through his own efforts and in part by his divorced mother, is entitled upon the death of the father by accident during the course of his employment, subsequent to the remarriage of the mother and leaving no other child under sixteen years of age, to receive two-thirds of the father’s avera- • weekly wage from the date of the father’s death until the said child arrives at the age of sixteen.</p>

<p>Memorandum of decision on motion for new trial.</p>

<p>VALIDITY OF AGREEMENT GIVING SOLE VOTING RIGHTS TO ONE CLASS OF STOCKHOLDERS.</p> <p> Corporations—Sales of Property and Assets of—Agreements Between Stockholders Not a Matter of Public Concern—Where Not Against Public Policy—Toting Bights Subject to Such Agreements. </p> <p>1. A sale of corporate property does not constitute a sale of the company’s “entire property and assets” within contemplation of Sections 8710-12, where hook accounts, notes and leases of an aggregate value of more than $200,000 are not included.</p> <p>2. Where the articles of incorporation contain a stipulation that in the event there occurs a default of payment of six or more semi-annual preferred dividends, then the preferred stockholders shall have the sole and exclusive right to vote, such stipulation in law is a valid binding contract between the stockholders and upon such default the common stockholders are excluded from voting.</p>

<p>DEFENSE OF INSURANCE COVERING THE DAMAGE SUSTAINED.</p> <p> Claim for Damages to Automobile—Defense of Payment of all Loss by Inswance Company—Subrogation. </p> <p>A wrong doer can not escape liability for damages on the plea that the injured party has been indemnified bv a third person, such as an insurer, with whom the wrong doer is not in privity and witii whom he has no connection.</p>

<p>DETERMINATION THAT TITLE TO LAND WAS ACQUIRED BY DEVISE.</p> <p> Title—Acquired by Devise and Not by Purchase—Although the Devise<¡ was Charged with Payment of a Bequest. </p> <p>Title to land devised by the will of the mother tu her son, the devise in the will being the source of devisee’s title, is'acquired by devise from an ancestor, and not by purchase, although charged with the payment of $700.00 by the devisee to his sistter.</p>

<p>COMPENSATION WHERE DEATH IS CAUSED BY HEAT STROKE.</p> <p> 'Workmen’s Compensation—Heat Stroke an Injury for Which Compensation May he Claimed—Use of Intoxicating Liquor hy the Decedent—Separation from his family at Intervals Does Not Deprive Them of the Right to Compensation. </p> <p>1. The fact that one killed during the course of his employment was addicted to the use of intoxicating liquor and such use may have contributed to his death from heat stroke, will not be permitted to militate against the claim of his dependent widow and children, where it appears that the stroke was suffered in the course of his employment and while at work in the hot sun of a July day.</p> <p>2. Neither does the fact that the decedent had not lived continuously with his family bar recovery by his dependent widow and three small children of the gross amount payable under the statute.</p>

<p>Motion to arrest evidence from jury.</p>

<p>INDIVIDUAL PROPERTY OWNERS GIVEN INJUNCTIVE RELIEF AGAINST VIOLATION OF AN ORDINANCE.</p> <p> Nuisance—Ordinance Governing Location and Operation of Public Garages—Violation of Enjoined by Abutting Property Owner—Ordinances Imposing a Duty with Reference to Indivuals Rather Than the Whole Public. </p> <p>An ordinance making the consent of a prescribed proportion of the abutting property owners within a specified distance a prerequisite to the construction or operation of a public automobile garage is not for the benefit of the public at large but for the protection of individuals whose property is within the prescribed zone, and injunction lies upon petition of an abutting owner within the prohibited area against -the erection as well as the operation of such a garage.</p>

<p>APPEAL FROM ALLOWANCE OF A CLAIM WHICH WAS EQUIVALENT TO A REJECTION.</p> <p> Workmen's Compensation—Right of Appeal from an Award Which is Equivalent to a Rejection—Closing a Case hy the Commission Constitutes a Final Order—Commission Without Authority to Pay for a Surgical Operation to Relieve Trouble Due to Natural Causes. </p> <p>1. An appeal will lie from an order of the Industrial Commission under Section 1465-90 of the General Code, which in form purports to he an award from the state insurance fund for personal injuries, but which in fact amounts to a denial of claimant’s right to participate at all in such fund on grounds going to the basis of his claim. Police v. Industrial Commission. 23 O. C. C. (N.S.), 433 cited and followed.</p> <p>2. Where the records of the industrial commission show that the claim was referred to the medical department, and afterward to the legal department of the commission, and each of these departments after reviewing the evidence reported adversely to the allowance of compensation on grounds going to the basis of the claim, and the commission thereafter in considering the claim upon its merits with the evidence and these adverse reports before it makes an order purporting to he an award in which it directs payment of the physicians for making examinations of claimant, but makes no award as compensation to the injured workman, anl at the close of such order declares “and this case was closed,” such action hy the commission is- tantamount to a rejection of the claim. In effect it is a denial of claimant’s right to participate at all in such fund on grounds going to the basis of claimant’s right. Such order is a “final action” within the meaning of Section 1465-90 of the General Code.</p> <p>3. Where on appeal from such decision, the commission files an answer alleging that by its said order it made an award to claimant relying on such alleged “award” to defeat the appeal, and goes to trial upon such issue, it can not thereafter be heard to deny that it had made a “final order” respecting such claim.</p> <p>4. Where a loss of vision hears no relation to the injury complained of, hut is the result of natural causes, it is unlawful for the Commission to pay for a surgical operation from such insurance fund in an effort to restore the lost vision, and the commission is without authority to compel the injured workman to submit to such an operation.</p>

<p>CONTESTED ELECTION FOR LONG TERM AS COUNTY COMMISSIONER.</p> <p> County Commissioners■—Election of in 1920—Candidate Receiving Lowest Vote—May Contest Election of the Other Tioo—For the Purpose of Determining Who shall be Given the Long Perm. </p> <p>1. The candidate for county commissioner who received the lowest vote of the three who were elected in 1920, may contest the election of the other two for the purpose of showing that the vote which he received entitles him to a term of four instead of two years.</p> <p>2. In such a case in the absence of a demand by all parties for a recount of all the precincts in the county, a recount will be ordered in those precincts only in which irregularities have been shown to have occurred in the official count as certified.</p>

<p>AS TO STOPPING, LOOKING AND LISTENING.</p> <p> Railway Grossings—negligence in Approaching Where the View is Obstructed—Vieiu of the Tracks Should be Obtained Before Going Over. </p> <p>One about to pass over a railway crossing is not cleared of the charge of negligence by the mere fact that he stopped his vehicle at a point where his view of the tracks was obstructed. The stop must be made at a point effective for looking upon down the tracks and ascertaining whether a train is approaching.</p>

<p>CANAL LEASES TERMINATED BY ABANDONMENT OF THE CANAL.</p> <p>Canal Water Rights—Leases for Surplus Water were Mere Licenses— Abandonment of a Portion of Canal Terminated Water Rights— Leasees not Entitled to Compensation Because of Failure of Water Leases not Entitled to Compensation Because of Failure of Water Privilege.</p> <p>1. By the act of March 23d, 1863 (60 Ohio L., 44), and the lease to the city of Cincinnati, executed in accordance therewith, the -state abandoned the Miami and Erie Canal, from the east side of Broadway to the Ohio river, for transportation purposes,</p> <p>2. The right reserved in said act and lease to flow the water through a sewer or conduit, in said part of the canal so abandoned, from the remaining part of said canal above Broadway, was for the benefit of the said remaining part of the canal, and incidentally such' flow of water below Broadway, through the sewer or conduit' so provided, could be and was used by the state for the benefit of the lessee users of water located in that, part of the canal so abandoned for transportation purposes, such as the defendant lessee users herein; but this right so' reserved by the state was not a vested right reserved to said lessee users of water; and such rights could be taken away by the state at any time without liability. (Hubbard v. Toledo, 21 O. S., 379; Elevator Co. v. Cincinnati, 30 O. S., • 629 and Fox v. Cincinnati, 33 O. S., 492 followed).</p> <p>3. The acts of May 15, 1911 (102 Ohio Laws, 168), the amendments o: April 18th 1913 (103 Ohio Laws 72-0) and August 15. 1915 (106 Ohio Laws, 293), and the amended lease of January 6, . 19.17, executed in accordance therewith, providing, as they do, for the abandonment of said canal from the cast side of Broadwaj ' to a point three hundred (300) feet north of Mitchell avenue, for transportation purposes, by cutting off, or deflecting the water in the canal, into Millcreek, at or near Mitchell avenue, with no provision therein for the flow of water below Broadway, the state thereby exercised its reserved right to terminate the flow of water, in sewer, conduit or otherwise, in that portion Of the abandoned canal, below Broadway, and when the water was deflected from said canal, on October 22, 1919, into Millercek. at or near Ludlow avenue, no liability was thereby created against the state or city of Cincinnati.</p> <p>4. The provision, in said last named acts and amended lease, as to the construction of appropriate water works for the benefit of those lessee users of water, located between Broadway and 300 feet north of. Mitchell avenue, was expressly limited to them, and as to all such, it is conceded, that the leases or licenses had terminated, been revoked or abandoned, prior to October 2-2d, 1919, when the water of the canal was deflected into Millcreek, at or near Ludlow avenue, and there was no necessity for the construction of conduits for the benefit of such leases or licenses which no longer existed; and even if this were not true, the users of water below Broadway could not, under said last named acts and amended lease, claim any benefit therefrom, as they are not referred to in any manner therein, as such benefits were expressly reserved to those owning water rights above Broadway.</p> <p>5. And hence, any and all attempts of the city of Cincinnati, through its board of rapid transit commissioners, or otherwise, to pay the defendants, who claim to own water power leases from the state, . located below Broadway, for their so-called water powers, or damages therefor, by reason of cutting off the water of the canal, at oil near Mitchell avenue, as authorized in said acts of 1912, 1913 and 1915, and amended lease of 1917, are illegal and void, and the expenditure of money therefor, by the said city, through the said board, or any of its officers, defendants herein, would be and is a misapplication of the funds of the city, and will be enjoined under Section 4311 of the Code, at the suit of a taxpayer, as alleged in the amended petition,</p>

<p>POWER TO ENACT ORDINANCES FOR CONTROL OF EVILS OF RECENT GROWTH.</p> <p>Validity of Ordinance—Requiring that Soft Drink Places he Licensed— Courts of Equity will Interfere to Protect Property Rights, When—■ Innocent Enterprises with Offensive Adjuncts—Judicial Notice May he Taken of Changed Conditions—Quasi Judicial Duties Imposed on Administrative Officers.</p> <p>1. Where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a court of equity.</p> <p>2. A business which is innocent per se may, by reason of offensive adjuncts arising thereto, become subject to regulation and control by public authority.</p> <p>3. The courts will take judicial notice of the changed conditions brought about by the adoption of the Eighteenth Amendment to the Constitution .of the United States.</p> <p>4. Under the “Home Rule” amendment to 'the Constitution of Ohio, and the charter adopted by the city of Akron, the council of said city has the power to enact ordinances to meet evils of recent growth affecting the welfare and good government of the city. And the local authorities being presumed to be familiar with local conditions, the court will not substitute its judgment for legislative discretion, and every intendment will be made in favor of the lawfulness of the exercise of such municipal power.</p> <p>.5. Quasi-judicial duties and administrative functions may be imposed upon administrative officers for the purpose of ascertaining the conditions under which an ordinance becomes effective.</p> <p>6. The ordinance of the city of Akron providing for the licensing ol what are commonly -known as “soft drinks” establishments is a lawful exercise of the police power possessed by said municipality, and such ordinance is a valid and constitutional enactment.</p>

<p>OFFENSES UNDER THE LIQUOR LAW.</p> <p>Prosecution for Sale of Intoxicating Liquor—Sufficient if the Affidavit States That the Sale was Unlawful—What the Phrase “In Violation of- Law” Comprehends—Second Offense Can not be Charged While Prosecution for the First Offense is Fending—Authority to Abate the Place as a Nuisance Does Not Entitle Defendant to a .Turn Trial—Review of Case Trial Withoitt Intervention of a Jury— Weight of Evidence—Violation of Order Separation of Witnesses.</p> <p>1. A judgment oí the court rendered in a criminal trial, without the intervention of a jury, is to be treated on review as to the weight of the evidence according to the same rules that apply to a verdict by a jury;, that is, the judgment can not be-reversed unless manifestly against the weight of the evidence.</p> <p>2. Where the evidence is conflicting a reviewing court will always hesitate to set aside a verdict or reverse a judgment unless the same is manifestly against the weight of the eviaence; and such judgment or verdict should not be reversed or set aside merely because there is an apparent conflict in the testimony.</p> <p>3. Section 9 of Article XV, of the Ohio Constitution as amended, which went into effect in Ohio May 27, 1919, provides that: '‘The sale and manufacture for sale of intoxicating liquors as a beverage are hereby prohibited. The General, Assembly shall enact laws to make this provision effective. Nothing herein contained shall prevent the manufacture or sale of such liquors for medicinal, in- ’ dustrial, scientific, sacramental or other non-beverage purposes.” These prosecutions are brought under Section .13195, General Code, against the plaintiffs in error for keeping a place where intoxicating liquors are sold, furnished or -given away in violation of law. The phrase "in violation of law” comprehends a violation of the state prohibition amendment to the Ohio Constitution. The Constitution being the supreme law, the words “in violation of law” would include the constitutional provision. It is not important what law is violated in the sale of intoxicating liquors under a charge of this character.</p> <p>4. It is sufficient for the affidavit to state that the sale was unlawful, and then in the hearing of the case proof can be offered that the sales were made oh Sunday, to a mipor, .in prohibited territory, or any other reason that renders the sale unlawful; and, therefore, a sale in violation of the Constitutional Amendment renders the same unlawful and thus in violation of law. If such sale is in violation of the Constitutional Amendment it is made “in violation of law.” The Constitutional Amendment became effective May 27, 1919, and thereafter whoever sold or furnished liquor or gave away the same as a beverage did so in violation of law and he became liable under General Code, Section 13195 to the penalties thereof; and the Constitutional provision is to the extent mentioned self executing.</p> <p>5. A second offense can not be charged and maintained against one who has been convicted of one offense, where the case involving the first offense has not been finally determined, but is pending in a higher court on error. In such case where the penalty imposed for the alleged second offense was greater than legally possible for a first offense, it is the duty of the reviewing court to remand the case to the trial court for sentence as for a first offense.</p> <p>6. Where imprisonment is no part of the penalty, the fact that the court may. under the statute, order an abatement of the place as a nuisance, does not entitle the defendant to a jury trial. .</p> <p>7. The trial court is vested with discretion to refuse or permit the examination of a witness who has remained in court by procurement or connivance of the party calling him in violation of an order for the separation of witnesses.</p>

<p>SALES OF MACHINÉRY ON APPROVAL. .</p> <p> Sales—’When Title Passes When Made on Approval—Application of the Statute—Rescission Must he Tendered—Or no Basis-Exists for Action Thereon. </p> <p>1. A machine sold with the express understanding that it will work well or it will not have to be paid for; that it will work satisfactorily; that it will do the work or the purchaser will not have to keep it, is a sale on approval under Rule 3 (2) of Section 8399 of the General Code, and the property therein does not pass until the purchaser signifies his approval to the seller or. does some other act accepting it.</p> <p>2. Under such contract, if no rescission has been tendered, no action lies in favor of the purchaser for breach of warranty; first because rescission is the exclusive remedy under the terms of the contract; • and second, because “satisfaction” .has no money value.</p>

<p>SERVICE OF SUMMONS UPON ONE WHO HAS BEEN EXTRADITED.</p> <p> Summons—May he Set Aside when Served on One Who has heen Indicted—Good Faith in Bringing the Accused into the Jurisdiction does not Validate Summons in a Civil Suit. </p> <p>1. A non-resident charged with crime and brought within this jurisdiction by compulsory process is exempt from service of civil process while coming into the jurisdiction, while necessarily in attendance upon the court, and while returning to his place of residence, provided no unnecessary delay occurs in returning.</p> <p>2. The fact that the criminal prosecution was instituted in good faith does not vary the rule to render valid service made upon such nonresident witness so within the jurisdiction.</p>

<p>VALIDITY OF ORAL AGREEMENT FOR CONVEYANCE OF LAND.</p> <p>Home Given to Niece as Wedding Gift, but no Heed Passed—Recovery of Possession Sought by Heirs 'of the Donot Twenty Tears Later— Competency of Declarations Made by Donor in Her Lifetime—Statute of Frauds Not Applicable to Oral Ageements for Conveyance, of Land, 'When—Laches.</p> <p>1. Declarations made by a deceased donor of land are competent when offered by the donee in defense of his title, but contrary statements by the donor fall within the prohibition of self-serving declarations and are inadmissible in evidence.</p> <p>2. An oral agreement for conveyance of land is taken out of the statute of frauds and is enforcible in Ohio where there has been a part per»i formance; and possession, even without the making of improvements, is such part performance, the only requirement being that . whatever has been done shall be clearly referable to some contract relating to the specific land.</p> <p>3. A party in possession can not be charged with laches, and where permanent improvements have been made and taxes and assessments paid by him, his failure to assert title until suit has been brought to dispossess him of the property does not give validity to the claim that his assertion of title was not made seasonably.</p>

<p>STREET ASSESSMENT IN EXCESS OF ONE-THIRD OF VALUE OF PROPERTY AFTER IMPROVEMENT.</p> <p> Columbus Charter Construed,—With Reference to Filing Objections to Street Assessments—Failure, of Property Owner to Act Within Two Weeks—Does Not Render Valid an Excessive Assessment. </p> <p>The charter of the city of Columbus provides that an owner of any lot who does not file objections in writing with the city clerk to the apportionment of an estimated assessment against snid lot. within two weeks after the service of notice of such proposed assessment, shall be deemed to have waived any objection to suc-h assessment to the-extent of the amount estimated. The charter also provides that in making such assessments the council shall limit the same to the special benefits conferred upon the property so assessed, and that in no case shall there be levied on any lot or parcel of . land assessments for any and all purposes, within the period of five years, in excess of 88 1-3 per cent, of the actual value thereof after the improvement is made. Plaintiff’s lot was assessed more than one-third of its actual value and, although served with notice as required by the city charter, she did not file objections within two weeks thereafter.</p> <p>Held, that plaintiff’s failure to object within the two weeks period does not empower the city authorities to assess her lot in excess of 33 1-3 per, cent, of its actual value after the improvement is made, and that plaintiff may by injunction prevent the city from collecting any part of such assessment in excess of one-third of such actual value.</p>

<p>BONDS DEPOSITED BY FOREIGN INSURANCE COMPANIES NOT TAXABLE IN OHIO.</p> <p> Taxation—Situs of Bonds for Purposes of Taxation—Where Deposited in Ohio by Foreign Insurance Companies in Conformity to Statutory Requirement. </p> <p>Section 5437, exempting foreign insurance companies from payment of taxes on bonds deposited with the superintendent of insurance for the protection of Ohio policy holders, is a constitutional enactment, and foreign companies making such deposits are relieved from listing such bonds for taxation. • .</p>

<p>RIGHTS OF CONTRACTOR WHERE CERTIFICATE OF ARCHITECT HAS BEEN REFUSED FOR FULL AMOUNT.</p> <p> Building Contracts—Delays in Completion of Work—Contractor Claims Architect Acted Unfairly in Making Deductions—Question of Damage from Delay One For the Jury—Where Architect is not Made the Final Judge Contractor may Recover Without Architect’s Certificate. </p> <p>A contractor agrees to complete, to the satisfaction of the architect, the reinforced concrete frame of a building within sixty-two working days or pay $50 per day for every day the work remains uncompleted thereafter. At the conclusion of the specified time the work is substantially completed, and, on entire completion, the architect gives his certificate for the entire balance due deducting, however, at the rate of $50 per day for three periods of delay to other contractors, caused, as he claims, by the work of the contractor in making certain alterations and corrections. The contractor re fuses the certificate and sues for the entire balance due, claiming that no delays ensued for which he was responsible, and that the aroitect had unreasonably, willfully and capriciously made such deductions and withheld his certificate for the full amount. The owner took issue and filed a cross-petition for the entire period of delay at $50 per day. Held:</p> <p>1. There being no proof of actual damage to the owner by, reason of the failure of the contractor to perform strictly, the latter was entitled to recover, if at all, on his petition, the entire balance due with interest.</p> <p>2. The contract .providing that the work shall be completed to the satisfaction of the architect, and that final payment should be made only on production of his certificate that the work has been so completed, and containing no stipulation that the architect shall be the final judge or that his judgment should be final or conclusive, the contractor may recover the entire balance due him without the architect’s certificate of satisfaction on a showing that in withholding or refusing such certificate, the architect acted arbitrarily, capriciously or unreasonably. {Ashley v. HenaJian, 56 O. S., 559, 570 and Wiclcer v. Messinger, 22 C. C., 712 followed, and Fred R. Jones Co. v. Fath et al, 101 O. S., 142 distinguished.)</p> <p>3. Whether the architect acted arbitrarily, capriciously or unreasonably in withholding or refusing a certificate for the full amount claimed by the contractor is an issue to be tried and determined by a jury.</p>

<p>OFFSETTING CREDITS BY DEBTS IN A TAX RETURN.</p> <p> Taxation—Statutory Phrase "Legal. Pona Fide Debts” as Applied to a Tax Return—Not Used in the Narrow, Technical Sense—AH Debts Legally Owing Deductible from Credits. </p> <p>In listing personal property for taxation, the owner is entitled to deduct from his credits all debts and obligations due and existing, regardless of whether founded on a-consideration actually received, and including an obligation to pay taxes to the federal government.</p>

<p>VALIDITY OF ORDINANCE£PROHIBITING BEGGING.</p> <p> Constitutional Law—Ordinance Prohibiting Begging—Within the Police Power of the Slate—Police Power Defined. </p> <p>1. An ordinance of a city which, forbids begging by words, the exhibition of a sign, by gesture or by singing is not in conflict with Section 1, Article 1, of the Bill of Rights of the Constitution.</p> <p>2. Such an ordinance is valid and is a proper exercise of the police power of a municipality under Section 3, Article .18 of the Constitution.</p> <p>3. The police power of a state includes within its scope and meaning all those regulations which tend to help for the betterment of society, the preservation of property and the happiness, health, comfort, safety and welfare of mankind.</p>

<p>VIOLATIONS OF CONTRACT NOT TO ENGAGE IN A COMPETING BUSINESS.</p> <p> Vendor of a Restaurant and its Good Will—Covenants not to Enter into a Similar Business Within One Square—Becoming Manager of a Competing Restaurant Held to he a Violation of his Covenant. </p> <p>1. A contract for the sale of the goodwill, chattels, fixtures, etc., of a restaurant business, containing a covenant by the defendant not to enter into said businesss in competition with plaintiffs for six months within one square, is valid and binding in law.</p> <p>2. Where the defendant engages in said business within said square during the six months, even though he be not the owner, but is only manager, and the evidence discloses that as manager he is the active controlling force of the business, his conduct violates the contract, and injunction will lie.</p> <p>3. The purpose and common intent of the parties to such a contract was to afford and assure the plaintiffs as far as the defendant was concerned, an unopposed pursuit of the restaurant business sold, for which a valuable consideration was paid.</p> <p>4. Such a covenant not to compete entitles the plaintiffs not only to the protection in respect of customers and patrons, but a right to enter the field of competition unhampered by any adverse influence of this defendant.</p>

<p>TRUST NOT CREATED BY DECLARATION OF AN INTENTION.</p> <p>Statements by a Decedent as to the Proposed Gift of a Bank Deposit— Not a Sufficient Basis for Establishing a Trust in the Fund so Designated—Bar of the Statute Against an Action on an Obligation of a Decedent where not Brought Within the Eighteen Months Period.</p> <p>1. A declaration by a decedent shortly before bis death that in consideration of love and affection and for services rendered he would give to G the deposit which he had in a certain designated bank, does not create a trust in praesenti in said fund upon which recovery may be had from his administrator.</p> <p>2. An action against an administrator for recovery for such services, as amount equal to such a fund is an action on a claim or debt and is barred if not brought within eighteen months fro mthe date of the appointment and qualification of the administrator.</p>

<p>PROSECUTIONS UNDER THE CRABBE AND MILLER ACTS.</p> <p> Intoxicating Liquors—Prosecutions for Selling, Possessing and Keeping a Place Where Sold—Pinal Jurisdiction of Mayors, Justices of the Peace, etc., in Liquor Cases—Jurisdiction of Mayor in Village Lying in Two Counties—Penial of Trial by Jury—Validity of Warrants of Arrest. </p> <p>1. A prosecution for keeping a place where intoxicating liquors are sold, furnished or given away is in no way authorized' by the Crabbe act, but falls under Section 13195 which has been in full force and effect for two generations or more.</p> <p>2. Under the Miller act, a mayor, justice of the peace, municipal or police, probate or common . pleas judge, have final jurisdiction within their respective counties of all misdemeanors arising in their counties under laws relating to intoxicating liquors or providing for the enforcement of laws relating to intoxicating liquors.</p> <p>3. The jurisdiction of the mayor of a village situated in two counties is co-extensive with both counties. In the exercise of such jurisdiction he need have but one office, and an affidavit upon which a warrant of arrest -was issued is not rendered defective by reason of the fact that it was sworn to before the mayor while sitting in the county of his jurisdiction other than the one in which the offense was committed.</p> <p>4. An act establishing a municipal court is a special grant cf legislative power on a particular subject, and in no way contravenes the constitutional requirement that all laws of a general nature shall have uniform operation throughout the state; the Miller law, therefore, takes precedence over laws creating municipal courts in so far as its terms are in conflict with the municipal law.</p> <p>5. Prosecutions for the manufacture, sale, having in possession or giving away of intoxicating liquors come under the Crabbe act, and are not rendered invalid by reason of the fact that the affidavits upon which the warrants of arrest were issued failed to negative the exceptions authorized by the act.</p>

The accused was brought to trial upon the following affidavit: “Before me, E. L. Hilliard, Deputy Clerk of the Municipal Court of Cleveland, personally came A. H. Wilks, who being duly sworn according to law, deposes and says, that on or about the 14th day of March, A. D. 1921, at the said city and county, one Milton A. Coulson did then and there unlawfully offer for sale on E. Ninth and Euclid Avenue, within the limits of said city, a certain indecent and scandalous…

<p>INVALIDITY OF NOTE AND MORTGAGE MADE TO A FICTITIOUS PERSON.</p> <p>Negotiable Instruments—Notes and Mortgage Made to Fictitious Persons for the Purgóse of Avoiding Taxation—Not Enforcible, When ' —Such Instruments Not in Effect Payable to Bearer—Section 81,14.</p> <p>1. A promissory note made payable to the order of a fictitious and non-existing person, when such fact was unknown at the time to the maker of the note, is void.</p> <p>2. A mortgage given to secure the payment of promissory notes made payable to the order of a fictitious or non-existing person, which fact was unknown at the time to the maker of the notes and mortgage, is void; and in a proceeding to foreclose such a mortgage the court will enter a decree cancelling both the notes' and the mortgage.-</p>

<p>PERFORMANCE OF JANITOR SERVICE IN PUBLIC SCHOOL BUILDINGS BY CONTRACT.</p> <p>Schools—Award of Contract for Janitor Service-—Provision of Section 7623 as to Public Competition Not Applicable—Incidental Variations from Specifications do Not Render Such a Contract Invalid, When.</p> <p>1. In the. making of contracts for the convenience and prosperity of the schools under their control, boards of education are limited only by the provisions of Section 7623, G. C., as to public competition.</p> <p>2. A contract for the cleaning and performance of janitor service in public school buildings is not within contemplation of Section 7623, and may therefore be entered into by a board of education without advertisement for public bidding.</p> <p>3. A contract for such service in a large number of school buildingB is not rendered invalid by awarding the work in all the buildings to a single contractor, notwithstanding the specifications on file used the word contractor in the plural and also incidentally required that he be in attendance at each school building from 7 a. ,m. till 6 p. m.</p>

<p>OWNERS OF MACHINES IN COLLISION FILE SUITS AGAINST EACH OTHER IN DIFFERENT COUNTIES.</p> <p> Venue—Actions in Different Counties Between the Same Parties Involving the Same Accident—Pendency of First not a Bar to the Second Until Judgment is Entered. </p> <p>1. -Section 6308, G. C., permits a person injured by the negligence of-the owner of a motor vehicle to bring an action in the county where such injured party resides.</p> <p>2. If two, residing in different counties, are injured in the same accident, the one bringing th.e action for damages first, in the county in'which he resides, can not thereby require the other party to set up in such action not only his defense, but his counter-' claim, but each has the right to sue the other in his own county, setting up his own cause of action.</p> <p>3. "Injured person” includes not only one injured in his person, but also one injured in his property.</p>

<p>JURISDICTION IN MOTOR VEHICLE NEGLIGENCE CASES.</p> <p> Venue—Where a Collision Occurs Between Motor Vehicles—The Owners Residing in Different Counties—Corporation May he Served in County Where It Has Its Principal Place of Business—Phrase “Injured Person” Construed. </p> <p>1. Under Section 6308, G. C., one whose automobile is injured in a collision with a motor truck of a corporation, caused by the negligent acts of its agent within the scope of his employment, may bring an action against such corporation in the county of his residence and have a valid summons issued to and served upon said corporation in another county, where it has its principal place of business.</p> <p>2. As a corporation can act only through its agents, the negligence of the agent is the negligence of the owner.</p> <p>3. “Injured person” referred to in Section 6308, G. C., is any person injured either in his person or property, which includes any of his property.</p> <p>* On the issues joined the case was tried, resulting in a verdict for the plaintiff. Error was prosecuted to the Court of Appeals, where, on February 18, 1920, it was held that the motion to quash was • properly overruled, citing Allen v. Smith, 84' O. S., 283.</p>

<p>VALIDITY OF A DECLARATION OF TRUST.</p> <p> Agreement Between Father and Daughter Affecting the Oivnership or Securities—Scope of the Trust Created•—Not Executory in Character—Bearing of Previous Adjudication—Adequacy of Consideration—Trust Held Not Testamentary in Character—Marital Rights of Husband—Subsequent Will of Daughter Not Effective Against Provisions of Trust. </p> <p>1. Where the validity of an instrument, executed by father and daughter, has been upheld against attack on the ground that the daughter was under the complete dominion of the father and did not understant the nature of the instrument she was signing, the doctrine of res adjudicata is applicable as to the question of undue influence, and a recital in the decree that the court found it unnecessary to pass upon one of the seven items of the instrument containing &. contingency based on survivorship, does not open the door to a second attack on the same ground as the first action but restricted to that particular item.</p> <p>2. An agreement between father and daughter with reference to stocks acquired by the father but standing in the daughter’s name, whereby the father took a life estate with provision for becoming the absolute owner, in the event of the prior death of the daughter without issue, while she was to become the absolute owner for herself and her children in case she outlived her father, is not open to attack on the ground that it is an executory trust.</p> <p>3. Inadequacy or want of consideration for the establishing of a trust is immaterial, where the trust is voluntary and executed.</p> <p>4. The contention that the item in controversy establishing a trust is a will, and therefore revocable and invalid, is without force in view of the previous adjudication establishing the irrevocability of the entire instrument, and also by reason of the further fact that while enjoyment by either party of full ownership of the securities covered by the item was postponed until the death of the other, the rights involved vested immediately upon execution of the instrument.</p> <p>5. A husband acquires 'by marriage no interest in the separate personal property of his wife, and if 'by written instrument she provides that the income from stocks acquired by her father but standing in her name shall go to him for life and full ownership pass to him in case of her prior death without issue which subsequently occurred, her husband, who added nothing to the property either by way ot investment or management is without ground for complaint of invasion of his marital rights, and as between the husband and the father equity is with the latter.</p> <p>6. Item 4 of the agreement under consideration is a complete, executed and valid declaration of a trust contained in an instrument heretofore adjudicated valid as a whole and the provision in favor of the father is enforcibie as against a subsequent bequest of the same stock to the husband.</p>

<p>THE TWO MASONIC BODIES OF OHIO ARE OF EQUAL STANDING.</p> <p> Fraternal Orders—Masonic Grand Lodge and Masonic National Grand Lodge, Colored, Enjoined from Interfering with Each Other—Both Entitled to The Appellation “Free and■ Accepted Masons." </p> <p>The two colored Masonic 'bodies, operating and functioning in Ohio through various subordinate lodges with large membership and large property holdings, are both lawfully entitled to peaceably continue such operation and functionings as Masonic lodges and to practice the rites and ceremonies of Free and Accepted Masons and exercise the rites of lodges and grand lodges; and the Grand Lodge owes no allegiance to and is not subject to the authority of the National Grand Lodge.</p>

<p>Ou motion to direct a verdict.</p>

<p>ALLEGED BREACH OF CONTRACT OF EMPLOYMENT.</p> <p>Action By Employee—For Breach By Employer of Contract of Employment—Stipulating that the Services Were to Be to the Entire Satisfaction of the Employer—Burden on Employee to Show that Discharge Was for Some Reason Other than the One Claimed.</p> <p>1. In an action to recover under a contract of employment, terminated by the defendant for the alleged reason that the contract stipulated the services were to be to the entire satisfaction of the employer, whereas in truth and in fact they were not satisfactory, the burden is upon the employee to show that his services were satisfactory and that the defendant did not act in good faith but dismissed him for some reason other than dissatisfaction with the service he was rendering.</p> <p>2. In case of recovery by plaintiff in such a case, the measure of damage is the difference between the amount the defendant had contracted to pay, less such amount as plaintiff would have earned had he exercised reasonable diligence in seeking other employ- ■ ment.</p>

<p>DEMURRAGE CHARGES ON CARS BUNCHED BY REASON OF INTENSE COLD AND HEAVY SNOW.</p> <p>Jurisdiction in Matters of I-tailroad Demurrage—Bunching of Oars hy Reason of Intense Cold and Heavy Snow—Not an Act of God— Binding Effect of Interstate Comwerce Rulings—Character of Events Falling Within the Glass Tcnown as Acts of. God.</p> <p>T.- State courts have no authority to exercise jurisdiction over subjects which come primarily within the jurisdiction of the Interstate Commerce Commission.</p> <p>2. Where the shipment is interstate, and the tariff rules make no provision for additional free time for car detention on account of hunching, resulting from an act of God, the claim of a consignee hound under the “average agreement” rule for demurrage charges, that he is entitled to additional free time hy reason of such agreement, is within' the exclusive jurisdiction of the Interstate Commerce Commission.</p> <p>3. The fact alone that the hunching of cars was wholly due to conditions created by heavy snowfall, severe storms and protracted and intensely cold weather, is not sufficient to show that such hunching was the result of an act of God.</p>

<p>Heard on demurrer to petition.</p>

<p>NEGLIGENCE OR UNREASONABLE DELAY IN RECISSION OF A CONTRACT.</p> <p> Promissory Note—Executed for Life Insurance—Policies More Expensive than Anticipated and Fail to Incorporate Provision Contracted for—Notice to Solicitor of the Insurance that Note "Would Not "be Paid. </p> <p>Whether or not there was unreasonable delay in rescinding a contract induced by false representations is a question for the jury under the evidence and instructions by the court appropriate to tho circumstances of the particular case.</p>

<p>JURISDICTION OF MAGISTRATES IN CRIMINAL CASES IN FRANKLIN COUNTY.</p> <p> Justices of the Peace—Serving in Townships Outside the City of Colum bus—Without Authority to Try Offenses Committed in Columbus. </p> <p>Jurisdiction of justices of tbe peace over offenses committed within the ■boundaries of the city of Columbus was by the municipal court act taken away from justices of the peace of townships of Franklin county outside of said city, and a conviction and judgment by one of such justices in a case where the offense was committed within the city limits must be held for naught.</p>

<p>VENUE AND SERVICE IN ACTIONS AGAINST CORPORATIONS,</p> <p> Corporations—Proper Venue in Actions Against—Service Against a Sales Agent not Effective—Upon Whom Service May he Had. </p> <p>1. The venue of an action against a corporation is the place where' the corporation is situated or whore its principal office or place of business is found, or where any of th“ officers named in thj statute may be summoned.</p> <p>2. In actions against corporations other than railroads, service must be had upon some officer who has and exercises corporate power with authority to act for the corporation in its corporate capacity.</p>

<p>WHEN THE NOTING OF AN EXCEPTION TO AN ORDER OR JUDGMENT IS ESSENTIAL.</p> <p> Exceptions—Apply to Decisions Made During Trial or to Judgment Entries Embodying such Decisions—Have no Reference to Rulings on Demurrers—Decisions, Orders and Judgments Distinguished. </p> <p>Failure to note an exception to an order overruling a demurrer, wlien no final order is made at the time, does not prevent the defeated plaintiff from prosecuting error to a final order of dismissal subsequently made.</p>

<p>ERROR TO THE COMMON PLEAS IN CRIMINAL CASES.</p> <p> Retdew of Criminal Cases by the Common Pleas—Leave to Pile Must be Obtained—Prosecutions for Violation of Municipal Ordinances. </p> <p>1. Section 13751, G. C., provides for the review of certain criminal eases by the common pleas court of convictions in lower courts but does not modify Section 4551, G. C., and when it is sought to prosecute error in a criminal case from the municipal court, under an ordinance, leave of court or a judge thereof must first bo obtained from the common pleas court.</p> <p>2. Prosecutions of error in criminal cases arising under Section 1558-60, G. 0., under a municipal ordinance are also controlled in cneir procedure by Section 4551, G. C., and leave must first be obtained from the common pleas court or a judge thereof, to file a petition in error, and when such leave is not obtained the court, upon motion, will strike the petition in error from the files.</p>

<p>APPLICATION OF THE PHRASES “WILLFUL ACT” AND “LAWFUL REQUIREMENT.”</p> <p> Workman Injured by Fall of an Elevator—Elects to Sue Ms Employer Directly—Pleading—Conflict Between The Patten and the McLanahan Cases—Designation of Pi"ce of Accident as “Shop” or “Fac- </p> <p>1. While the statutory definition of a “willful act,” making it an. act done knowingly and purposely and with the direct object .of injuring another,” renders' it highly improbable that any Ohio employer will ever be held liable for such an act by an employee, a court will not assume to determine from a mere inspection oi his pleading what facts a plaintiff may be able to establish when his case comes on for hearing on the merits, and hence an allegation that his injuries were the result of a “willful act” on the part of the defendant will not be stricken from the petition.</p> <p>2. A violation of any of the provisions of Section 1027 is a violation of a “lawful requirement” within the meaning of Section 1465-76, G. C.,</p>

<p>FIXING THE PERIOD OF DISTRIBUTION.</p> <p> Wills—Estates Will Not be Out Down Because of Doubts or Inferences —Title Quieted Against the Contingency of an Executory Devise. </p> <p>Tlie court holds that the executory devise based upon the contingency, “should my daughter, Mary, die without issue her surviving,” was dependent upon her death occurring before she arrived at the age of twenty years, the point of distribution provided in the will, and that upon her arriving at the age of twenty she took an absolute fee simple title.</p>

<p>TEST AS TO WHETHER FIVE OR MORE ARE EMPLOYED.</p> <p> Workmeris Compensation—Construction of the Phrase “Five or More” Employees—Two Operating a Farm Constitute a Partnership. </p> <p>1. Where-two sons carry on the farm of their father, under an agree- ■ i >,tiient .to 'pay him cine-third of the profits as rent, their relation .. constitutes a, partnership. ' ,</p> <p>2. In order ,to come within the workmen’s compensation law, an employer must have in his service five or more men under a contract for continuous service of a character necessary to the regular conduct'of the business; and where only four are'émployed reg■■-.Irdlarly and a fifth intermittantly a case is not presented under the , ■ .compensation law.</p> <p>* Affirmed hy the Court of Appeals in an unreported opinion;- ca-use . certified by the Court of Appeals to the Supreme Court, which affirmed the, judgment of the Court of Appeals, 101,0. S„ 498.</p>

<p>PARTITION OF LIFE ESTATES.</p> <p> Duration of Estate not a Test as to Right of Partition—But may Determine the Character of Partition to he Decreed. </p> <p>An owner for life of an undivided interest in real estate may compel partition, hut the decree will be limited to partition of the life estate and can not extend to the entire fee simple title, unless one or more of the owners of the fee join in a prayer for partition of the fee.</p>

<p>ENFORCEMENT OF A DEFECTIVE LEASE AFTER TRANSFER.</p> <p> Lease Defective for Having hut One Witness—Transferred to Third Party with Knowledge—Lessor May Not Recover his Rent—But Intended Lessee may ask for Specific Performance Against the Transferee—Who is Bound hy Prior Equities—Statutes of Frauds Satisfied—Recording Act Without Application to a Defective Lease —Parties. </p> <p>A defectively executed lease covering real estate and subsequently transferred to a third party with notice of the purported lease and its defective character, may be enforced against the transferee hy the prior intended lessee.</p>

<p>JURISDICTION OF JUSTICES OF THE PEACE UNDER THE CRABBE ACT.</p> <p> Violation of the Crabbe Act—Prosecution Before a Justice of the Peace —Jurisdiction Conferred Toy Section 6. </p> <p>A. resident of the city of Portsmouth, arrested upon warrant issued upon affidavit filed with justice of the peace outside the corporate • limits of the city for violating the Crabbe act, is tried and convicted. Error proceedings are prosecuted, the sole contention being that the justice of the peace by virtue of the act creating a municipal court in the city of Portsmouth, was without jurisdiction.</p> <p>Held:. That the justice of the peace did have jurisdiction and that Sections 6 and 9 of the Crabbe act expressly repeal Section 38 of such municipal court act.</p>

<p>PRIORITY BETWEEN INCHOATE DOWER AND A MECHANIC’S > LIEN:</p> <p>Dower—Can not he Reduced or the RigHt Thereto Destroyed—But is Paramount to Contract's Entered into hy the Husband—Inchoate Dower Takes Preference over a Mechanic's-Lien. ,</p> <p>1. Inchoate dower right has priority over a mechanic’» lien. '</p> <p>2. Where a mechanic or- materialrdan furnishes labor and material under a contract with the husband alone,'adding.Tabor and, materials to his separate realty improvement and the wife -is not a party to the contract and has not given any release, her inchoate dower right is paramount to the right of the mechanic’s lien.</p> <p>3. The mechanic is presumed to know that the' impovements added to the husband’s real estate became part thereof, which real estate' was subject to the inchoate dower right, and hence the risk was his.</p>

<p>DISTRIBUTION UNDER A WILL BEFORE IT WAS SET ASIDE.</p> <p>Estates of .Decedents—Assets Distributed, under Terms of the Will at a Family» Meeting—Will Subsequently Set Aside-—Executor not 'Liable for Funds so Distributed though Made Without Order of the Probate Court—Personal Note of Executor Surrendered to Him —Must Stand Charged with-Amount of the Note and the Legacy Paid to Him—Remainder of Distribution Yalid.</p> <p>1. Where a will, has been [probated,, executors named in will appointed, . appraisement, made, filed and approved, and the administration has proceeded,to and through the approval by the probate court of the first and the second partial accounts, the personal assets being then practically but not finally distributed, at which stage of the administration of tlie - trust a will-contest is begun and concluded setting aside the will, and where, on final accounting thereafter by the acting.-executor—the other executor having been removed— , it appears that; shortly, after the probate of the will and appointment of executors of the estate, but before the assets were appraised and without any report to or any order of the probate court, '$15,000 of the assets were distributed at a family meeting in which the executors, guardian of a minor legatee, and the testamentary trustee'of all of the minor legatees under the will were parties participating; and;it; is made to appear to the court on th,e hearing of said final account on exception thereto that all payments made in. said distribution of $15,000 were made in consonance, with the terms of the will, especially to the person named in the will, and it further being made to appear to the court from all of the-evidence adduced on exceptions seeking to hold said act- ■ ing executor liable therefore, that a court of chancery would have authorized all of:said payments in said distribution and there .- being no debts or special-legacies forbidding, had proper application been made pending the validity of the'will—</p> <p>Held—said acting executor .will not be charged, nor dees he stand charged with said funds so distributed and the interest thereon or any part thereof oh final accounting, though made without order of the probate court; nor is-he-legally liable to refund, repay, or pay said sum so distributed 'tb the estaie or ,tho. heirs thereof, though the law in the case required a different distribution from the will, since the distribution was made in accordance with the terms of the will pending its validity, and under such circumstances a court of chancery would have authorized it on proper application.</p> <p>2. Where in such case said acting executor, at said family meeting, is surrendered his personal note of $500 due his decedent, as and for services rendered during her life .time—•</p> <p>Held: said surrender is unlawful, and said executor will be charged and stands charged to pay said note with interest thereon, the code of Ohio being mandatory in the method in which an executor must make claim against his decedent’s estate, Section 10727 et seg.</p> <p>3. When in such ease the acting executor is a legatee under such will, and as such draws his legacy of $1,000, which was carried into his account, approved by the probate court, from the fact that he is not an heir-at-law of said decedent, and since said will has been set aside, he will be charged and stands charged to refund said legacy together with interest at 6 per cent thereon from the date of the filing of exceptions to his final account. In such a case the provision of Section 10635 are applicable and control.</p>

<p>INVALIDITY OF A GARBAGE REMOVAL CONTRACT.</p> <p>Municipal Corporations—Authority of Home Rule Cities—To Exact Fees in Reasonable Amounts from Persons in Various Occupations— Equal Protection Clause Violated where Licenses are Made Unreasonable in Amount.</p> <p>A city ordinance which imposes a license fee of twenty dollars a month upon the business of collecting and transporting garbage through the streets, is not a regulatory measure, but an exaction far in excess of the cost to the city or the value of the privilege granted, and is invalid 'because of its unreasonableness.</p>

<p>LIABILITY FOR INJURY TO A PASSENGER IN AN AUTOMOBILE IN COLLISION-</p> <p> Negligence—Of the Driver of an Automobile— May not be Imputed to an Injured Passenger, When—Not Error to Repeat in General Charge Principles set Forth in a Special Charge—Where Emphasis is not Given to One View of the Case. </p> <p>The plaintiff, having informed the owner of an automobile, who boarded with her, that she intended to go marketing, was invited to ride in the automobile with him as he was going in the same direction on his own business. The owner drove the automobile and the plaintiff rode on the front seat beside him but took no part in the operation of the automobile. A collision took place between the automobile and a street car in which the plaintiff was injured. Held:</p> <p>1. That the negligence of the driver of the automobile could not not be imputed to the plaintiff.</p> <p>2. That stating in the general charge rules of law already stated'in a special charge, but without referring .to the special charge, was not error where no special theory of the evidence, was emphasized and the lav.' favorable to the respective parties was given equal prominence in the manner of its statement and repetition.</p>

<p>IMMUNITY AGAINST CIVIL ACTIONS.</p> <p> Conspiracy—Not Ground for a Private Suit, Unless—Damages Stijfered Must First Toe Shown—Immunity in Performance of foidicial Duties—Void Judgments Distinguished from Those Which at Most are Only Erroneous—Sham Pleading. </p> <p>1. Under the rule a civil action does not lie against alleged conspirators unless something is shown to have been done, independent of the conspiracy, which resulted in damages to the .plaintiff, a suit can not he maintained against a group of judges, jurors and other judicial officers because of humiliation and injury resulting from an alleged illegal prosecution and commitment to jail for contempt; nor for prosecution for criminal libel, resulting in conviction and judgment in a court having full jurisdiction, which judgment is still in force; nor on other charges growing out of such contempt and criminal libel proceedings.</p> <p>2. Moreover, judges of courts of general authority are invested with immunity from priva-te suits directed against them individually because of judicial acts performed, and this is true regardless of alleged improper motives in the performance of such acts.</p> <p>3i A motion to strike from the files a petition directed against judges, jurors and others, based on such causes of action, may be granted under the inherent power of the court.</p>

<p>GIFT TO A CHURCH BUILDING FUND NOT A GIFT TO CHARITY.</p> <p> Inheritance Tax—Bequest to a Church Subject Thereto—Unless to be Used for Public Charity Only—But as to a Bequest Based on a Contract Anti-dating Passage of this Law it is not Retroactive. </p> <p>1. In an appeal from an order fixing inheritance taxes, a motion to dismiss the appeal because of the insufficiency of the appeal bond of $50 will be overruled, where no objection was made in the court below or exception entered to the amount of the bond as there fixed.</p> <p>2. A bequest to a church to be used for purposes of public charity only would not be subject to the inheritance tax, but a church building is not used for charitable purposes only and a bequest to the building fund for a new church edifice does not fall within the exemptions to the inheritance tax.</p> <p>3. A bequest to a church based upon a contract entered into between the testatrix and the church officers prior to the enactment of the inheritance tax law is not subject to the tax therein imposed.</p>

<p>LEASES PERFECT IN FORM BUT DEFECTIVE IN FACT.</p> <p> Landlord and Tenant—Lease Lefective and Lessee Evicted—Liability of the Lessor for Loss Sustained by Reason of the Eviction—Competency of the Testimony of Witnesses to Execution of a Lease—Tendency of the Courts 'to Favor the Lessee. </p> <p>1. Where the testimony clearly shows that the parties concerned intended to execute a lease, and the instrument which was executed proves to be a lease defective in form but perfect in fact, it is of binding force upon the parties thereto, not as a contract for a lease but as a lease.</p> <p>2. Eviction of one conducting a going business under such a lease, renders the lessor liable for the earnings or profits of the business during the remainder of the term of the lease, plus expenses to which the lessee was subjected by reason of the eviction proceedings; but the value of the good will, which would have diminished until it became nothing at the end of the lease, is of too speculative a character to afford a basis for an award of damages.</p>

<p>CONSTRUCTION OF THE WORD “ PAROCHIAL” AS APPLIED TO CATHOLIC SCHOOLS.</p> <p> Schools—Reduced Street Gar Fare Ordered—For Pupils of the “Public” and “Parochial” Schools—Other Catholic Schools Held to be Included—Words and Phrases. </p> <p>An ordinance requiring that children between the ages of ten and eighteen years, attending regularly established “public or parochial” schools, shall be carried on the traction lines to and from such schools for a five-cent fare, must be construed in view of its benefieient purpose to include children in attendance at the academies and the convent schools and high schools maintained by the Catholic church.</p>

<p>WARRANTS FOR SEARCH AND SEIZURE MUST BE STRICTLY CONSTRUED.</p> <p> Search Warrants—Must Specify with Exactness the Persons and Prop erty Covered—John Doe Warrants not Available in Cases of Violation of 'Liquor Laws—No authority or Discretion Vested in Officer Serving the Warrant Beyond that Specifically Stated, </p> <p>1. A search warrant, issued under the Crabbe and Miller acts and authorizing officers to enter residences and business houses for the purpurpose of searching for and seizing intoxicating liquor illegally manufactured or obtained, must be issued by -a proper officer and be based upon an affidavit which states specifically the place to be searched, the person to be seized and the things to be sought, and that the affiant believes and has good reason to believe that the things sought are there concealed; the warrant with the affidavit . annexed must be directed to an authorized officer; the search must be made in the daytime unless there is urgent necessity that it be made at night; the search must be limited to the building or room specified in the affidavit, and to the person or persons therein named; and the goods siezed must be limited to those set out in the warrant, regardless- of the fact that other goods of the same character are found during the search.</p> <p>2. A warrant for search of the premises of and the.arrest of E does not authorize the officer to proceed with the search upon learning that the present owner is B. His only recourse is to procure- a new warrant for search of said premises with B named as the owner and person subject to arrest.</p>

<p>RIGHTS UNDER THE COMPENSATION LAW OF AN INJURED BOY SIXTEEN YEARS OF AGE.</p> <p>Boy Injured in Course of His Employment—Waives Bight of Action Against his Employer—By Collecting from State Insurance Fund— Employer may Set up Defense of Fraud and Misrepresentation as to Age of Minor Injured in His Employ—'Construction of Amended Section 1465-98 of the Workmen’s Compensation Act.</p> <p>1. A minor, sixteen years of age, employed -by an employer who has complied with the provisions of the workmen’s compensation act, and injured during such employment, is now within the provisions of the act, and if he has made application to the industrial commission for an award out of the state insurance fund, in compensation of his injury, and has been paid under the provisions of such act, he has thereby waived his right to bring an action at law against his employer.</p> <p>2. The case of Acklin Stamping Company v. Kutz, 98 O. S., page 61, based upon the statute then in force, does not apply to -the case at bar, by reason of the fact that the provision of original Section 1465-61, “who are legally permitted to work for hire under the laws of the state,” has been eliminated from the definition of an employed minbr, by amendment. (April 17, 1919, 108 O. L., 316.)</p> <p>3. Such minor even though employed contrary to the provision of the law in reference to the employment of minors, is now deemed sui juris for all purposes of the act under the amendment of Section 1465-93 (108 O. L., 324), and as such is competent to elect to receive compensation from the state insurance fund, and having so elected, waives his right to bring an action at law.</p> <p>4. The employer may set up' as a defense any fraud or misrepresentation made by such minor employee, as to his age, even though lie may have been employed contrary to the provisions of any statute of the state, and if such misrepresentation is proved the defense of contributory negligence becomes available.</p>