Volume 24 — Ohio Circuit Court Decisions

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

<p>Error to common pleas court.</p> <p>Cited and commented upon by the following authorities:— Ward v. Ward, 10 Circ. Dec. 656 (20 R. 136); Leavitt v. Rosenberg, 83 Ohio St. 230 [93 N. E. Rep. 904] ; Sliaw v. Lindsay, 15 Yes. 380; Newton v. Foot, 2 Dick. 793; Cook v. Wilson, 4 Madd. 380; Beck v. Bethlehem, 2 Pa. Co. Ct. 511; Dodd v. Northrup, 37 Conn. 216; Call v. Pike, 66 Me. 350; Hacker v. United States, 37 Ct. Cl. 86 (U. S.); Weeks, Depositions 283; Blum v. Jones, 86 Tex. 492 [25 S. W. Rep: 694]; Beam v. Quimby, 5 N. H. 94; Wilkowski v. Halle, 37 Ga. 678 [95 Am. Dec. 374]; Glanton v. Briggs, 5 Ga. 424; Payne v. Briggs, 8 Neb. 75; Massachusetts Mut. Acc. Assn. v. Dudley, 15 App. D. C. 472; Bryant v. Ingraham, 16 Ala. 116; Tillinghast v. Walton, 5 Ga. 335.</p> <p>Right of notary in office of but not attorney for affiant to take oath in affidavit for attachment. 2 Cyc. 12; Lopes y. DeTasket, 4 Moore C. P. 424; Goodtitle v. Badtitle, 8 T. E. 638; Turner v. Bates, 10 Q. B. 292; MacKenzie v. MacKenzie, 238 111. 6-16' [87 N. E. Eep. 848]; Griffin v. Bor si, 4 .Wend. (N. Y.) 195; Willard v. Judd, 15 Johns. (N. Y.) 531; Hallenback v. Whitaker, 17 Johns. (N. Y.) 2; People v. Spalding, 2 Paige (N. Y.) 326; Potier v. Barclay, 15 Ala. 439; Singer v. McAllister, 22 Neb. 359 [35 N. W. Eep. 181]; Schuyler Nat. Bank v. Bollong, .24 Neb. 821 [40 N. W. Eep. 411]; Lynch Co. v. Wayne Circuit Judge, 129 Mich. 110 [88 N. W. Eep. 387]; Carr v. Hooper, 48 Kan. 253 [29 Pac. Eep. 398].</p> <p>Notary taking oath not “interested in the event of the action or proceeding” to disqualify him. Eisenlord v. Clum, 126 N. Y. 552 [27 N. E. Eep. 1024; 12 L. E. A. 836]; Browning v. Bancroft, 5 Mete. (Mass.) 88; Perine v. Grand Lodge A. O. U. W. 48 Minn. 82 [50 N. W. Eep. 1022] ; Hobart v. Hobart, 62 N. Y. 80; Pitzl v. Winter, 96 Minn. 499 [105 N. W. Eep. 673]; Chmdler v. Brainard, 31 Mass. (14 Pick.) 285; Smith v. State, 18 Ohio 89; Palmer v. Hospital, 10 Kan; App. 98 [61 Pac. Eep. 506].</p> <p>Cases reviewed. Newton v. Foote, 2 Dick. 793; Cooke v. Wilson, 4 Madd. 380; Shaw v. Lindsey, 15 Yes. 380; King v. Wallace, 3 T. E. 402; Beck v. Bethlehem, 2 Pa. Co. Ct. Eep. 511; Dodd v. Northrop, 37' Conn. 216; Call v. Pike, 66 Me. 350; Blum v. Jones, 86 Tex. 492 [25 S. W. Eep. 694] ; Bean v. Quimby, 5 N. H. 94; Wilkowski v. Halle, SI Ga. 678 [95 Am. Dee. 374]; Tillinghast v. Walton, 5 Ga. 335; Glanton v. Griggs, 5 Ga. 429; Goodrich v. Williams, 50 Ga. 426; Payne v. Briggs, 8 Neb. 75; Smith v. Smith, 2 Me. (2 Greenl.) 408; Bryant v. Ingraham, 16 Ala. 116.</p>

<p>RAILROADS.</p> <p>1. Act 99 O. L. 25 Void as to Interstate Commerce, Valid as to Intrastate.</p> <p>The Act 99 O. L. 25 (Gen. Code 9017) insofar as it undertakes to impose a liability on common carriers by railroad while engaged in interstate commerce is void, but insofar as it undertakes to impose the same liability on such carriers while engaged in intrastate commerce is a valid enactment.</p> <p>2. Failure to Distinguish between Railroad Carriers Engaged in State and Interstate Commerce.</p> <p>The language of the act which divides railroads ihto those which are in whole, and those which are in part, within the state does not distinguish between common carriers by railroad, when engaged in interstate commerce and when engaged in intrastate commerce, furnish 'an' universal rule applying to all eral regulation, would apply to all commerce; but there is nothing in the act to warrant the presumption that the legislature would not have passed it were it to he superseded, as it was, hy the act oi congress of April 22, 1908, insofar as it applied to interstate commerce.</p> <p>3. State and Federal Acts Eliminating Rule of Fellow Servant Doctrine Universal.</p> <p>The Act of Congress passed April 22, 1908, and said Statute of Ohio, impose upon common carriers by railroad a liability for injury to any of their employes resulting from the negligence of any other of their employes, and thus eliminate the defense founded upon the negligence of a fellow servant. These two acts, the one applying to interstate commerce and the other to intrastate commerce, furnish a universal rule applying to all actions, for personal injuries, to an employe of common carriers by railroad, caused by the negligence of any other employe.</p> <p>4. Failure of Petition for Negligence of "Railroad to Distinguish between State and Interstate Commerce does not Defeat Recovery.</p> <p>Hence, in an action, for personal injuries, brought by a locomotive engineer, when injured in the discharge of his duties on one train, in a collision caused by the negligence of the ' conductor of the other train, an instruction given to the jury, substantially in the language of the second paragraph of Sec. 1 of the act of February 28, 1908, there being no averment in the pleadings nor evidence in the case as to whether, at the time he was injured, he was engaged in interstate or intrastate commerce, is a proper instruction.</p> <p>[Syllabus by the court.]</p>

<p>DOWER — MORTGAGES.</p> <p>1. Mortgage Condition Broken before Marriage, Widow is Dowable out of Surplus after Mortgage Paid, not of Entire Purchase Money.</p> <p>Where land is mortgaged by the husband and the condition is broken before marriage and after marriage the husband dies, upon sale of the land by his administrator for payment of his debts, and the proceeds of the sale of the mortgaged land are large enough to pay the mortgage debt and leave a surplus sufficient to allow the widow dower in the entire proceeds, held that the widow is only dowable of the surplus proceeds after paying the mortgage debt and not out of the entire purchase money.</p> <p>.2. Husband not Seized of Estate of inheritance.</p> <p>The husband was not seized of an estate of inheritance during coverture in the land, and at the time of his death he owned but an equity therein.</p> <p>:3. Dower Measured by interest of Deceased Consort.</p> <p>The widow’s right to dower in the land of her deceased husband is to he measured by his interest therein, and can rise no higher.</p> <p>-4. Mortgage Condition Broken Legal Title is in Mortgagee.</p> <p>The condition in the mortgage having been broken before marriage, the legal title at that time was in the mortgagee.</p> <p>[Syllabus approved by the court.]</p>

<p>INTOXICATING LIQUORS.</p> <p>Barkeeper in Saloon During. Closed Period Violates Ordinance Notwithstanding he was There Alone Cleaning and Preparing Same for Open Hours.</p> <p>Where an oruinance of a city provided, “that it shall be unlawful for any person to permit or allow any place where intoxicating liquors are sold as a beverage to be open or remain open between the hours of 10 o’clock P. M. of any day and 6 o’clock of the next succeeding day,” and the bar-keeper of a proprietor of a saloon in said city entered his saloon before 6 o’clock, locked the door, allowed no one to enter until 6 o’clock, nor did he before that time sell, offer for sale, furnish or give away any liquor or other goods, but was engaged in cleaning up the saloon, icing the liquors therein preparatory to opening; held, that he was rightfully convicted of a violation of the ordinance.</p> <p>[Syllabus by the court.]</p>

<p>Vacancy clause in the contract, Eureka F. & M. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57]; Germania Fire Ins. Co. v. Milligan, 76 Ohio St. 543 [81 N. E. Rep. 980; 12 L. R. A. (N. S.) 456; 118 Am. St. Rep. 891]; Union Cent. L. Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906].</p> <p>Verification of proof of loss, German Fire Ins. Co. v. Grunert, 112 111. 68; Hartford Protection Ins. Co. v. Harmen, 2 Ohio St. 453 [59 Am. Dee. 684]; Globe Ins. Co. v. Boyle, 21 Ohio St. 120; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 40 [35. Am. Rep. 589] ; Dun v. Insurance Co. 10 Dec. 667 (8 N. P. 612); affirmed, no op., Insurance Co. v. Dun, 52 Ohio St. 639; Connecticut Eire Ins. Co. v. Hamilton, 9 O. P. D. 546; Hamilton v. Insurance Co. 8 O. P. D. 137 [61 Fed: Rep. 378] ; Hamilton v. Insurance Co. 7 O. F. D. 14. [46 Fed. Rep. 42] ; Dailey v. Hope, 57 Me. 474; Patterson v. Insurance Co. 64 Me. 500; Jones v. Insurance Co. 36 N. J. L. (7 Vroom.) 29 [13 Am. Rep. 405]; Eliot Five Cents Sav. Banlt v. Assurance Co. 142 Mass. 142 [7 N. E. Rep. 550]; Turley v. Insurance Co. 25 "Wend. (N. Y.) 374; German-American Ins. Co. v. Paul, 5 Ind. T. 150 [83 S. W. Rep. 60]; Findeisen v. Insurance Co. 57 Yt. 520; Birmingham Fire Ins. Co. v. PulvCr, 126 111. 329 [18 N. E. Rep. 804; 9 Am. St. Rep. 598]; Kenton Ins. Co. v. Wigginton, 89 Ky. 330 [12 S. W. Rep. 668; 7 L. R. A. 81] ; MartUnson v. Insurance Co. 64 Mich. 372 [31 N. W. Rep. 291]; Hanover Fire Ins. Co. v. Gustin, 40 Neb. 828 [59 N. W. Rep. 375]; Myers v. Insurance Co. 72 la. 176 [33 N. W. Rep. 453]; State> Ins. Co. v. Todd, 83 Pa. St. 272.</p> <p>Use of gasoline contrary to the policy, West v. Insurance Co. 27 Ohio St. 9 [22 Am. Rep. 294]; Williams v. Insurance Co. -54 N. Y. 569 [13 Am. Rep. 620]; Buchanan v. Insurance Co. 61 N. Y. 26; Me-ars v. Insurance Co. 92 Pa. St. 15 [37 Am. Rep. 647]; Arnold v. Insurance Co. 148 Cal. 660^ [84 Pac. Rep. 182; 25 L. R. A. (N. S.) 6]; Smith v. Insurance Co. 107 Mich. 270 [65 N. W. Rep. 236; 30 L. R. A. 368]; Springfield Fire & M. Ins. Co. v. Wade, 95 Tex. 598 [68 S. W. Rep. 977; 58 L. R. A. 714; 93 Am. St. Rep. 870] ; American Cent. Ins. Co. v. Green, 16 Tex. Civ. App. 531 [41 S. W. Rep. 74]; LaForce v. Insurance Co. 43 Mo. App. 518; Columbia Planing Mill Co. v. Insurance Co. 59 Mo. App. 204; Humboldt v. Mears, 29 Pitts. Leg. J. 365; Boyer v. Insurance Co. 124 Mich. 455 [83 N. W. Rep. 124; 83 Am. St. Rep. 338]; Wheeler v. Insurance Co. 62 N. H. 450 [13 Am. St. Rep. 582] ; Szymlcus v. Insurance Co. 114 111. App. 401; Bentley v. Insurance Co. 191 Pa. St. 276 [43 Atl. Rep. 209]; Gunther v. Insurance Co. 85 Fed. Rep. 846; Ban v. Insurance Co. 50 App. Div. 428 [64 N. Y. Supp. 290]; Davis v. Furniture Co. 102 Wis. 394 [78 N. W. Rep. 596]; Putnam v. Insurance Co. 4. Fed. Rep. 753; American Cent. Ins. Co. v. Chancey, 127 S. W. Rep. 577 (Tex. Civ." App.) ; Angier v. Insurance Co. 10 S. D. 82 [71 N. W. Rep. 761; 66 Am. St. Rep. 685]; Ohio Farmers’ Ins. Co. v. Burget, 65 Ohio St. 119 [61 N. E. Rep. 712; 55 L. R. A. 825;, 87 Am. St. Rep. 596].</p> <p>Defense of vacancy, Germania Fire Ins. Co. v. Werner, 76 Ohio St. 543 [81 N. E. Rep. 980; 12 L. R. A. (N. S.) 456; 118 Am. St. Rep. 891]; Eureka Fire Ins. Co. v. Baldivin, 62 Ohio St. 368 [57 N. E. Rep. 57]; Mitchell v. Insurance Co. 6 Dec. 420 (4 N. P. 386) ; Harris v. Insurance Co. 18 Ohio 116 [51 Am. Dec. 448]; Johnson v. Insurance Co. 66 Ohio St. 6 [63 N. E. Rep. 610]; Union Cent. Life Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906] ; Northern Assur. Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133; 46 L. Ed. 213]; Kentucky Y. M. & C. Co. v. Insurance Co. 146 Fed. Rep. 696 [77 C. C. A. 121] ; Dewees v. Insurance Co. 35 N. J. L. 366; United Firemen’s Ins. Go. v. Thomas, 82 Fed. Rep. 406 [27 C. C. A. 42; 53 U. S. App. 517; 47 L. R. A. 450]; Baumgartel v. Insurance Co. 136 N. Y. 547 [32 N. E. Rep. 990]; Allen v. Insurance Co. 123 N. Y. 6 [25 N. E. Rep. 309]; Quinlan v. Insurance Co. 133 N. Y. 356 [31 N. E. Rep. 31; 28 Am. St. Rep. 645]; Messel~back v. Norman, 122 N. Y. 583 [26 N. .E. Rep. 34]; Ayres v. Insurance Co. 17 Iowa 176 [85 Am. Dec. 553].</p> <p>Gasoline kept contrary to the provisions of the policy, Badger v. Platts, 68 N. II. 222 [44 Atl. Rep. 296; 73 L. R. A. 572; 73 Am. St. Rep. 572]; Wheeler v. Insurance Co. 62 N. H. 326 [13 Am. St. Rep. 582]; Cobb v. Insurance Co. 17 Kan. 492; Western Assur. Co. v. Rector, 85 Ky. 294 [3 S. W. Rep. 415]; Davern v. Insurance Co. 7 La. Ann. 344; Beer v. Insurance Go. 39 Ohio St. 109; People’s Ins. Co. v. Kuhn, 12 Heisk (Tenn.) 515.</p> <p>Proof of loss made by attorney, German Fire Ins. Co. v. Crunert, 112 111. 68 [1 N. E. Rep. 113]; Ayres v. Insurance Co. 17 Iowa 176 [85 Am. Dec. 553]; Farmer’s Mut. Ins. Co. v. Graybill, 74 Pa. St. 17; O’Connor v. Insurance Co. 31 Wis. 160; Northwestern Ins. Co. v. Atkins, 3 Bush (Ky.) 328; Sims v. Insurance Co. 47 Mo. 54 [4 Am. Rep. 311].</p>

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

<p>Error to common pleas court.</p> <p>Cited and commented upon by the following authorities: Passenger By. v. Young, 21 Ohio St. 518 [8 Am. Rep. 78] ; Fendrick v. State, 28 O. C. C. 724 ('9 N. S. 49), reversed by Supreme Court, State v. Fendrick, 77 Ohio St. 298; Walters v. State, 39 Ohio St. 215; Burns v. State, 75 Ohio St. 407 [79 N. E. Rep. 929]; Jones v. State, 51 Ohio St. 331 [38 N. E. Rep. 79] ; Bond v. State, 23 Ohio St. 349; Cincinnati, H. & D. By. v. Frye, ■80 Ohio St. 289 [88 N. E. Rep. 642; 131 Am. St. Rep. 709] ; Weaver v. State, 24 Ohio St. 584; Bupp v. Shaffer, 12 Cire. Dec. 154 (21 R. 643) ; Salomon v. Beis, 3 Circ. Dee. 184 (5 R. 375) ; ■State v. Lingafelter, 77 Ohio St. 533 [83 N. E. Rep. 897] ; Wool-weaver v. State, 50 Ohio St. 289 [34 N. E. Rep. 352; 40 Am. St. Rep. 667] ; State v. Snell, 5 Dec. 670 (2 N. P. 55) ; Marts v. State, 26 Ohio St. 162</p>

<p>CARRIERS — ERROR.</p> <p>1. Act of God Injected.as Defense When not Pleaded, is Erroneous, but Reversal Refused Because not Prejudicial to Complainant.</p> <p>Subjection of an instruction as to act of God as a matter of defense, in an action against a carrier for the value of apples frozen in transit, no such issues being pleaded, constitutes error; but since the error was prejudicial to the consignee rather than the carrier, it is not ground for reversal upon petition in error of the carrier.</p> <p>2. Freezing Apples in Transit in December in Southern Ohio not Due to Act of God.</p> <p>Freezing of a shipment of apples in transit in the latitude of Southern Ohio in December cannot be attributed to the act of God, or to any inherent nature of the fruit which could not be guarded against, but is due to the negligence of the carrier.</p> <p>[Syllabus approved by the court.]</p>

<p>TRUSTS — -WILLS.</p> <p>Devise of Income of $18,000 to Worthy Poor Payable at Rate of $10. per Month Invalid, Fails to Create Charitable Trust.</p> <p>A clause in a will providing: “The surplus money he (the executor) shall apply at the rate of $10.00 a month during the winter months, to buy flour and coal for worthy poor,” where said surplus money amounts to $18,000, is incapable of execution, invalid and insufficient to create a charitable trust. [Syllabus by the court.]</p>

<p>LIBEL AND SLANDER — MALICIOUS PROSECUTION.</p> <p>Suspicion Divulged to Police by Owner of Stolen Property as to Thief Privileged.</p> <p>A suspicion divulged to a police officer by the owner of stolen property as to the person committing the theft is privileged; hence, it cannot be made the basis of an action for slander or false imprisonment.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Daughters Having Confirmed Father’s Use of Dividends of Their Inherited Stock Cannot Rescind Written Agreement During Such Power..</p> <p>A written agreement hy daughters, authorizing their father, who was their guardian and holding stocks inherited hy them from their mother, to retain possession thereof and collect and use the dividends as long as he lived, will not he rescinded and judgment given for the dividends, unless úpon strong and convincing evidence, especially since the daughters had appeared in probate court and asked to have their father’s accounts confirmed and for several years before execution of such agreement permitted him to apply the dividends to his own use.</p> <p>[Syllabus approved by the court:]</p>

<p>DIVORCE AND ALIMONY — DOWER—PARTITION.</p> <p>Wife Obtaining Divorce for Aggression of Husband not Divested of Dower in Lands not Granted to her as Alimony.</p> <p>A wife who procures a decree of divorce from her husband because of his aggression retains her right of dower in any real estate which he may own not granted to her as alimony; and where an action is brought for the partition of property in which he holds an undivided interest, his former wife may ask by answer and cross petition for an assignment to her of her inchoate contingent right of dower in her said former husband’s share of said property.-</p> <p>[Syllabus by the court.]</p>

<p>ACTIONS — MECHANICS’ LIENS.</p> <p>Action is Prematurely Brought on Contract for Work to be Delivered Free From Liens as Long as Mechanic’s Lien Is in Force.</p> <p>Am action for recovery of balance due on a contract for' the erection of certain elevators, which provides that the work shall be delivered free from all claims, liens or other charges, is prematurely brought when instituted while there is in force a mechanic’s lien in favor of a subcontractor.</p>

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

The court below dismissed the petition on the ground that Gen. Code 10216 does not apply to proceedings before justices of the peace. This section reads: “Unless otherwise specially provided, tbe time within which an act is required by law to be done shall be computed by excluding the first day and including the last; except that the last shall be excluded if it be Sunday.”

<p>Appeal from common pleas court.</p> <p>Cited and commented upon by the following authorities:</p> <p>Williams v. Oil, 52 W. Ya. 181 [43 S. E. Rep. 214; 60 L. R. A. 795]; Gill v. Fletcher, 74 Ohio St. 302 [78 N. E. Rep. 433; 113 Am. St. Rep. 962] ; Sanxay v. Hunger, 42 Ind. 44; Ghartiers Bloch Goal Go. v. Mellon, 152 Pa. St. 286 [25 Atl. Rep. 597; 18 L. R. A. 702; 34 Am. St. Rep. 645]; Pennsylvania Goal Go. v. Sanderson, 113 Pa. St. 126 [6 Atl. Rep. 453; 57 Am. Rep. 445] ; Lillibridge v. Goal Go. 143 Pa. St. 293 [22 Atl. Rep. 1035; 13 L R. A. 627; 29 Am. St. Rep. 544] ; New York & N. E. By. v. Railroad Commissioners., 162 Mass. 81 [38 N. E. Rep. 27] ; Marvin v. Mining Go. 55 N. Y. 538, [14 Am. Rep. 322] ; Uhl v. Railway, 47 W. Ya. 59 [34 S. E. Rep. 934] ; Porter v. Manufachiring Go. 65 W. Ya. 636 [64 S. E. Rep. 853]; Jones, Easements 263; Brigham v. Smith, 70 Mass. (4 Gray) 297 [64 Am. Dec. 76] ; Pomeroy v. Salt Co. 37 Ohio St. 520; McCabe v. Fross, 18 Dec. 634 (7 N. S. 261) ; National Exch. Bank v. Cunningham, 46 Ohio St. 575 [22 N. E. Rep. 924] ; Baker v. Rice, 56 Ohio St. 463 [47 N. E. Rep. 653] ; Meredith v. Frank, 56 Ohio St. 479 [47 N. E. Rep. 656] ; Detlor v. Holland, 57 Ohio St. 492 [49 N. E. Rep. 690; 40 L. R. A. 266] ; Kelley v. Oil Go. 57 Ohio St. 317 [49 N. E. Rep. 399; 39 L. R. A. 765; 63 Am. St. Rep. 721],</p>

<p>PARTIES — WILLS.</p> <p>Capacity to Maintain Action to Contest Will Determinable Before Issues of Validity of Wili.</p> <p>The right to maintain an action to contest a will under Gen. Code 12082, being raised, must he determined by the court before proceeding to submit to the jury the issues as to the validity of the will.</p>

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

<p>SALARY AND LOAN BROKERS.</p> <p>1. Requirement That Brokers Dealing in Chattel Loans and Assignment of Wages be Licensed Held Constitutional.</p> <p>The exception in favor of banks and building associations, found in act 102 O. L. 469 (Gen. Code 6346-1 et seq.), licensing money lenders, does not violate the equality provision of either the-federal or the state constitution, nor does it disregard the requirement of the state constitution that laws of a general nature shall be of uniform operation throughout the state.</p> <p>,2. Provision Requiring Wife's Signature to Husband’s Assignment of Wages Constitutional.</p> <p>The provision of Gen. Code 4364-4, requiring an assignment of salary by one who is married to be signed by the husband and wife making the application for such assignment, is not a violation of the right of separate contract, inasmuch as it is within the police power of the state to protect families from the improvidence of one member.</p>

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

<p>RAILWAYS — NEGLIGENCE.</p> <p>Presumption That Switch was Thrown Pursuant to Dispatcher’s .Order Eliminates Relation of Fellow Servants Between Switch Tender and Deceased Engineer Killed in Collision.</p> <p>Upon trial of an action for wrongful death of a locomotive engineer, it will he presumed, in the absence of evidence to the contrary, that throwing a switch by reason of which trains came into collision, was in obedience to orders to the switch tender from someone superior in authority to the engineer, and the question whether the engineer and switch tender were fellow servants is immaterial.</p> <p>[Syllabus approved by the court.]</p>

<p>NEGLIGENCE — RAILWAYS.</p> <p>1. Driver of. Wagon and Horses Passing upon Crossing Obscured by Smoke of Passing Train and Colliding with Another Train Immediately Passing is Negligent.</p> <p>A person in a wagon drawn by a team of horses, approaching a railroad crossing on a public highway, having stopped upon hearing the whistle of an approaching train, by immediately driving upon the crossing after that train passes, and without waiting for the smoke therefrom obscuring the adjacent tracks to disappear that he might have an unobstructed view and without taking other precautionary steps in the exercise of ordinary care to avoid danger, is guilty of negligence defeating recovery for injury to his wagon and horses from colliding with another train immediately passing over such crossing.</p> <p>2. Danger at Railroad Crossing Increased by Smoke Requires Greater Caution.</p> <p>Where the danger at a Tailroad crossing is increased by a volume of smoke upon such crossing, or other conditions obstructing the vision, greater care and caution are imposed upon one about to pass over such crossing.</p> <p>3. Refused to Direct Verdict when Proof Raises Clear Presumption of Negligence of Plaintiff and not Rebutted Erroneous.</p> <p>It is error upon the part of the trial court to refuse to sustain a motion, .at the conclusion of plaintiff’s evidence, to direct a verdict for the defendant, in a collision case at a railroad crossing on a public highway,' where the testimony of the plaintiff raises a clear presumption of negligence on his part Which directly contributed to the injury of his property, in the absence of any tangible proof given tending to rebut such presumption.</p> <p>4. Instruction that Defendant has Burden of Proving Contributory Negligence, when Plaintiff's Evidence Raises Presumption of his Negligence.</p> <p>In an action for damages for -alleged negligence, where the defense of contributory negligence is interposed, it is error upon the part of the trial court to instruct the jury that “the burden of proof is upon the plaintiff of proving the negligence of the defendant as charged in the petition, and the burden is upon the defendant to make out the evidence of contributory negligence by the plaintiff’s servant or agent,”' without the further instruction that if plaintiff’s own testimony in support of his cause of action raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption.</p> <p>[Syllabus by the court.]</p>

<p>Error to common pleas court.</p> <p>Final or interlocutory order. Armstrong v. Breiuing Co. 53 Ohio St. 467 [42 N. E. Rep. 425] ; Botkin v. Pickaway Co. (Comrs..) 1 Ohio 375 [13 Am. Dec. 630] ; Kelley v. Stansberry, 13 Ohio'408; Hey v. Schooley, 7 Ohio (pt. 2) 48; Baker v. Lehman, Wri. 522; Clark v. Bentel, 6 Dec. Re. 1205 (12 Am. Law Rec. 534) ; Teaf v. Hewitt, 1 Ohio St. '520 [59 Am. Dec. 634] ; Evans v. Dunn, 26 Ohio St. 439; Cameron v. Workman, 30 Ohio St. 58; Waters v. Lemmon, 4 Ohio 229; Moore v. Chittenden, 39 Ohio St. 563; Hinde v. Whilney, 31 Ohio St. 53; Turner, In re, 5 Ohio 542; State v. Smith, 69 Ohio St. 196 [68 N. E. Rep. 1044] ; State v. Jones, 17 Ohio St. 148; State v. Burgoyne, 7 Ohio St. 153; State v. Lewis, 25 O. C. C. 227 (1 N. S. 56); State v. Eager, 2 Circ. Dee. 335 (3 R. 581) ; State v. Shaw, 43 Ohio St. 324 [1 N. E. Rep. 753] ; 13 Am. & Eng. Enc. Law (2 ed.) 28; Shepherd v. Bice, 38 Mich. 556.</p> <p>Prevailing party, no right to review. Holton v. Buggies, 1 Root (Conn.) 318; Baymond v. Barker, 2 Root (Conn.) 370; Watkins v. Martin, 24 Nrk. 14 [81 Am. Dee. 59] ; Hayden v. Stone, 112 Mass. 346; Binggold v. Barley, 5 Md. 186 [59 Am. Dec. 107] ; Shirley v. Lunenburg, 11 Mass. 379; Kinealy v. Macklin, 67 Mo. 95; Grawshay v. Souter, 73 U. S. 739 [18 L. Ed. 845].</p> <p>Controversy essential to jurisdiction: 2 Cyc. 533, 628, 630; Pelham v. Bose, 76 U. S. (9 Wall.) 103 [19 L. Ed. 602] ; Carter v. Graves, 12 N. C. 74; Stauffer v. Mining <& Gas Co. 147 Ind. 71 [46 N. E. Rep. 342] ; Black v. Kirgan, 15 N. J. Law 45 [28 Am.. Dec. 394] ; Pierse v. West, 29 Ind. 266; Hedges v. Mace, 72 111. 472; Munger v. Jeffries, 10 Dec. 12 (7 N. P. 55) ; Wilson v.. Bussell, 40 la. 697.</p> <p>The merits of the record. State v. Meacham, 3 Circ. Dee. 335 (6 R. 31); Bauman v. Bauman, 26 O. C. C. 37 (4 N. S. 298) ;, Sapp v. Sapp, 34 O. C. C. 652 (14 N. S. 269) ; Parish v. Parish, 9' Ohio St. 534 [75 Am. Dec. 482] ; Cook, Estate of, 77 Cal. 220 [IT Pac. Rep. 923; 1 L. R. A. 567; 11 Am. St. Rep. 267] ; Zahorka v. Geith, 129 Wis. 498 [109 N. W. Rep. 552] ; Webber v. Webber, 83 N. C. 280; Wagner v. Wagner, 36 Minn. 239; Petit v. Petit, 45 Misc. 155 [91 N. Y. Supp. 979] ; Mickle v. State, 21 So. Rep. 66' (Ala.) ; Greene v. Greene, 68 Mass. (2 Gray) 361 [61 Am. Dec. 454],</p> <p>The defense. Bempe v. Bavens, 68 Ohio St. 113 [67 N. E. Rep. 282] ; Lore v. Truman, 10 Ohio St. 45; Porter v. Wagner, 36 Ohio St. 471; Mill Creek Valley St. Car Co. v. Carthage, 9 Circ. Dec. 833 (18 R. 216) ; Phillips, Evidence 125; Weidman v. Weidman, 57 Ohio St. 104 [48 N. E. Rep. 506].</p> <p>Reply brief. Cincinnati v. Steadman, 53 Ohio St. 312 [45' N. E. Rep. 5] ; State v. Deputy Supvrs. 70 Ohio St. 341 [71 N.. E. Rep. 717]; Fisher v. Quillen, 76 Ohio St. 196 [81 N. E. Rep., 182] ; DeWitt v. DeWitt, 67 Ohio St. 340 [66 N. E. Rep. 136] ; O’Brien v. O’Brien, 124 Cal. 422 [57 N. E. Rep. 225] ; Kamp v. Kamp, 59 N. Y. 212; First Bat. Bank v. Dusy, 110 Cal. 69 [42 Pac. Rep. 476] ; Byrne v. Hoag, 116 Cal. 1 [47 Pac. Rep. 775] ; Adams v. Adams, 77 N. J. Eq. 123 [79 Atl. Rep. 683].</p> <p>Nunc pro tunc entry was a'final order. Carpenter v. Carnal Co. 35 Ohio St. 307; Braden v. Hoffman, 46 Ohio St. 639 [22 N. E. Rep. 930] ; Hettrick.v. Wilson, 12 Ohio St. 136 [80 Ant. Dec. 337].</p> <p>Court calendar inadmissible to establish judicial finding. Lucas Co. (Comrs.) v. Millard, 4 Dec. 419 (4 N. P. 53), affirmed; Millard v. Lucas Co. (Comrs.) 7 Circ. Dec. 115 (13 R. 518); Watts v. Shewell, 31 Ohio St. 331; Moore v. Brown, 10 Ohio 197; Bank of Circleville v. Bowsher, 8 Circ. Dee. 514 (15 R. 114); Jacks v. Adamson, 56 Ohio St. 397 [47 N. E. Rep. 48; 60 Am. St. Rep. 749] ; State v. Daily, 14 Ohio 91, 99.</p> <p>Merits of the ease. Columbus Cent. By. v. Wilkin, 10 Dec. 467 (8 N. P. 35) ; State v. Seward, 9 Circ. Dec. 168 (16 R. 443) ; Weidman v. Weidman, 57 Ohio St. 101 [48 N. E. Rep. 506]; Gilbert v. Gilbert, 83 Ohio St. 265 [94 N. E. Rep. 421] ; MiU Creek Valley St. By. v. Carthage, 9 Circ. Dec. 833 (18 R. 216); Bempe v. Bavens, 68 Ohio St. 113 [67 N. E. Rep. 282] ; Lore v. Truman, 10 Ohio St. 45; Porter v. Wagner, 36 Ohio St. 471; Topliff v. Topliff, 4 Circ. Dec. 312 (8 R. 55) ; New York, L. E. & W. By. v. Siegfried, 3 Circ. Dec. 649 (7 R. 33) ; Siegfried v. Bailway, 50 Ohio St. 294 [34 N. E. Rep. 331]; Archer v. Bail-way, 65 Iowa 611 [22 N. W. Rep. 894] ; Charles v. Pawley, 71 Ohio St. 50 [72 N. E. Rep. 294] ; Jarreit, In re, 42 Ohio St. 199; State v. Einkade, 25 O. C. C. 657 (1 N. S. 607).</p>

<p>NEGLIGENCE — RAILWAYS.</p> <p>1. Duty of Person Riding in Vehicle Driven by Another Over Railway Crossing.</p> <p>A person riding in a vehicle, driven by another, is required to use ordinary care for his own safety when passing over a railway crossing; if he fails to do so and is injured thereby he cannot recover therefor notwithstanding the railway company’s negligence.</p> <p>2. Duty of Daughter in Buggy Driven by Parent to Look and Listen at Railway Crossing.</p> <p>Ordinary care demands that one riding in a buggy driven by another over a railway crossing should look and listen for approaching trains; hence, if a daughter riding in a buggy with her parents, having full possession of her faculties and knowing of the time and operation of trains over a highway crossing near her home, is guilty of negligence in failing to observe an approaching passenger train such as will defeat her recovery for injuries sustained thereby, unless some other fact appear to excuse her from such duty.</p> <p>[Syllabus approved by the court.]</p>

The action in the court of common pleas was commenced on March 7, 1908, and on May 11, 1908, a motion was filed to strike out some parts of the petition, and to make other parts more definite and certain. On August 4, 1908, this motion to the petition was overruled, and the defendant given leave to answer on or before August 29, 1908, but no answer was filed at that time. On September 28, 1908, on leave then given, the petition was demurred to for the following reasons: 1.

<p>INJUNCTION — TAXES.</p> <p>Injunction Against Collection of Taxes Exclusive Remedy to Correct Unlawful Additions by Board of Review.</p> <p>Injunction against collection of taxes is the proper and only remedy to review a board of review’s action in “arbitrarily and capriciously” and without evidence or information adding to tax returns; act 102 O. L. 224 makes no provision for review by the state tax commission by error or appeal.</p> <p>[Syllabus approved by the court.]</p>

<p>PAYMENTS.</p> <p>Money Furnished by Wife to Pay Husband's Indebtedness Applied to That on Which She is Surety.</p> <p>Where the wife furnishes the husband with money to make a payment on his indebtedness to a creditor to whom he owes two debts, both being due, on one of which his wife is surety, equity will require the creditor to apply the payment to the debt on which the wife is surety, if he knew that the payment was made with money of the wife, even if the husband at the time of the payment neglected to direct the application. [Syllabus by the court.]</p>

<p>Appeal from common pleas court.</p> <p>Cited and commented upon the following authorities: Bisham, Equity Sec. 75, p. 116; 31 Cye. 1148; Blagge v. Mills, I Story (Mass.)-426; Sudgen, Poweri 404; Gwinne v. Gwinne, II Dec. 429 (8 N. P. 307) ; Eling v.. Bordner, 65 Ohio St. 100 [61 N. E. Rep. 148] ; Broadrup v. Woodman, 27 Ohio St. 553; Malhews v. Leaman, 24 Ohio St. 615; Shehy v. Cunningham, 81 Ohio St.-289 [90 N. E. Rep. 805; 25 L. R. A. (N. S.) 1194] ; Hurd v. Bobinson, 11 Ohio St. 234; Schlief v. Hart, 29 Ohio St. 150; Morgan v. Spangler, 14 Ohio St. 102, 115; Proctor v. Snodgrass, 3 Circ. Dee. 268 (5 R. 547); affirmed, no op., Snodgrass v. Proctor, 53 Ohio St. 644; Hildebrand v. Fogle, 20 Ohio 147; Stambaugh v. Smith, 23 Ohio St. 585; Barton v. Morris, 15 Ohio 408; Ashworth v. Carleton, 12 Ohio St. 381.</p> <p>Cited and commented upon the following authorities: Bebout v. Quick, 81 Ohio St. 196 [90 N. E. Rep. 162] ; Huston V. Cone, 24 Ohio St. 11; Hibbs v. Insurance Co. 40 Ohio St. 543; Corry v. Lamb, 45 Ohio St. 203 [12 N. E. Rep. 660]; Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408] ; 31 Cyc. 1043; Clark v. Graham, 19 U. S. (6 Wheat.) 577 [5 L. Ed. 334].</p>

<p>INTOXICATING LIQUORS.</p> <p>Addition of Penalty to Assessment for Liquor Tax cannot be Recovered against One Engaging in the Traffic without Paying Such Tax.</p> <p>The 20 per cent penalty, prescribed by Gen. Code 6082, formerly Sec. 5 of act 100 O'. L. 89, to be added to the assessment imposed by a county auditor as a tax on the liquor traffic, cannot be imposed against one engaged in such traffic without-having first paid the assessment. Notwithstanding the original act authorized such imposition no rule of construction requires: a court to read such intention into such statute as codified and. adopted by the legislature.</p> <p>[Syllabus approved by the court]</p>

<p>INTOXICATING LIQUORS.</p> <p>1. Evidence of Circumstances not Competent to Fortify Direct Testimony of Absence of Proprietor from Saloon at Time of Furnishing.</p> <p>In a prosecution against the proprietor of a saloon for furnishing intoxicating liquors to a minor in which it appears that the bar tender had been instructed at the time of his employment not to sell to minors, unqualified and unequivocal proof of the absence of the proprietor at the time of such furnishing having been given in direct examination of the bar tender in' defense of accused, the narration of any independent circumstance to fortify his own statement is improper in direct examination and properly excluded.</p> <p>2. Whether Proprietor or Bar Tender of Saloon Furnished Liquors to Minors is Immaterial.</p> <p>An instruction, in a prosecution for furnishing intoxicating liquors to a minor, that if the liquors were not furnished by the proprietor, but by the bar tender unless the proprietor consented to such furnishing by the bar tender then no conviction could be had and the burden is on the state to show that the furnishing was consented to by the state, is properly refused when the court charges generally that it is immaterial whether the furnishing was by the proprietor or the bar tender, unless it appears that such liquors were furnished without the authority and against the instructions of the proprietor given to the agent in good faith, and also, that the burden of proving defendant guilty is upon the state.</p> <p>[Syllabus approved by the court.]</p>

<p>PLEADING — WILLS.</p> <p>1. Amendment Proper Procedure to Cure Verification Omitted.</p> <p>Failure to properly verify an answer and cross petition in an action for construction of a will and an accounting by a guardian should be cured by amendment pursuant to R. S. 5114 (Gen. Code 11363); hence, the dismissal of such a pleading because not properly verified constitutes reversible error.</p> <p>2. Guardian Cannot Sue to Construe Will.</p> <p>Guardian, having no trust under a will to administer, cannot maintain an action to construe the will and for an accounting.</p> <p>[Syllabus approved by the court.]</p>

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

<p>SCHOOLS AND SCHOOLHOUSES.</p> <p>Measurement of Distance Pupils Must Travel to School.</p> <p>In assigning pupils to the public school nearest to their residence,, the distance should he measured by the most direct path from the schoolhouse door to the middle of the highway and thence* to the said residence.</p>

<p>BILLS AND NOTES.</p> <p>¡Burden on Endorsee from Original Holder to Prove Title Acquired as Holder in Due Course, when Original Holder Acquired Title by Fraud.</p> <p>By virtue of Gen. Code 8157 and 8164 in an action on a promissory note by an endorsee who acquired title from the original holder, when it is shown that the title of the original holder was defective by reason of misrepresentation and fraud in procuring the note and failure of consideration therefor, the burden is on the holder to prove that he acquired the title as a holder in due course.</p> <p>'[Syllabus by the court.]</p>

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

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

<p>GAS COMPANIES — MUNICIPAL CORPORATIONS.</p> <p>Í. Petition Seeking to Enjoin Gas Company from Charging Higher Price for Gas than New Price Arbitrarily Fixed by Council is Demurrable.</p> <p>Demurrer lies to the petition of a municipality to enjoin a gas company, after the exercise of its franchise for ten years, from charging prices to consumers in excess of the maximum metered and flat rate prices fixed by ordinance for the ensuing term and from shutting off gas to consumers refusing to pay the minimum metered only rate declared by the company.</p> <p>' "swer Denying Passage of Ordinance Pleaded and Asserting invalidity thereof not Demurrable.</p> <p>An answer of a gas company, denying knowledge of the due and legal passage of an ordinance fixing the price of gas other than averred in the petition, admitting notice of the passage of said ordinance but averring its nonacceptance and repudiation of the terms and conditions thereof and its giving notice to the municipality of its rejection of the ordinance, and alleging the invalidity of the ordinance, is not demurrable.</p> <p>[Syllabus approved by the court.]</p>

<p>Quo Warranto.</p> <p>Cited and commented upon by the following authorities: Osborn v. Bank, 61 Ohio St. 427 [56 N. E. Rep. 197] ; Yore v. Woodford, 29 Ohio St. 245; Huston v. Craighead, 23 Ohio St. 198; East Ohio Gas Co. v. Akron, 81 Ohio St. 33 [90 N. E. Rep. 40; 26 L. R. A. (N. S.) 92; 18 Am. Cas. 332]; Gas Light Co. v. Zanesville, 47 Ohio St. 35 [23 N. E. Rep. 60] ; Public Service Corp. v. Lighting Co. 67 N. J. Eq. 122 [57 Atl. Rep. 482]; 1 Page, Contracts p. 21; 36 Cye. 1363; Wabash Ry. v. Defiance, 52 Ohio S.t. 263 [40 N. E. Rep. 89] ; State v. Telephone Co. 5 Circ. Dec. 311 (11 R. 55) •. Booth, St Rys. p. 61, Sec. 33; 1 Dillon, Mun. Corp. See. 31; Wabash Ry. v¡ Defiance, 167 IT. S. 88 [17 Sup. Ct. Rep. 748; 42 L. Ed. 87] ; Cleveland Elec. Ry. v. Cleveland, 24 IT. S. 116 [27 Sup. Ct. Rep. 2Ó2; 51 L. Ed. 399]; Blair v. Chicago, 201 IT. S. 400 [27 Sup. Ct. Rep. 427; 50 L. Ed. 801] ; State v. Railway, 24 O. C. C. 609 (1 N. S. 146) ; Munn v. Illinois, 94 U. S. 113 [24 L. Ed. 77],</p>

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

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

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

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

<p>Error to common pleas court.</p> <p>Cited and commented upon by the following authorities r 18 Am. & Eng. Enc. Law (2 ed.) 270; Bryans, Law of Petroleum & Nat. Gas p. 92; Evans v. Gas <& Tr: Go. 29 N. E. Rep. 398' find.; 31 L. R. A. 673]; Lynch v. Fuel Gas Co. 165 Pa. St. 518= [30 Atl. Rep. 984] ; DufUeld v. Michaels, 102 Fed. Rep. 820' [42 C. C. A. 649] ; Young v. Ellis, 91 Ya. 297 [21 S. E. Rep. 480] ; Gillespie v. Oil & Gas Co. 236 111. 188 [86 N. E. Rep. 219] ; Rhoads v. Gas & Oil Go. 80 Kan. 762 [104 Pac. Rep. 851] ; Woodland Oil Co. v. Crawford, 55 Ohio St. 161 [44 N. E. Rep. 1093; 34 L. R. A. 62] ; Nolle v. Tyler, 61 Ohio St. 432 [56 N. E. Rep. 191; 48 L. R. A. 735]; Gas Co. v. Eckert, 70 Ohio St. 127 [71 N. E. Rep. 281]; Vendocia Oil & Gas Co. v. Rolinson, 71 Ohio St. 302 [73 N: E. Rep. 222; 104 Am. St. Rep. 773; 2 Ann. Cas. 444] ; Blodgett v. Zinc Co. 120 Fed. Rep. 893 [58 O. C. A. 79]; Rolerts v. Bettman, 45 "W. Ya. 143 [30 S. E. Rep. 95] ■,Wills v. Gas Co. 130 Pa. St. 222 [18 All. Rep. 721; 5 L. R. A. 603]; Ward v. Gas &Oil Co. 131 Ky. 711 [115 S. W. Rep. 819] ; Bettmcm v. Shadle, 22 Ind. App. 542 [53 N. E. Rep. 662],</p>

<p>DRAINS AND DITCHES — RAILWAYS.</p> <p>.Allegation of Ample and Sufficient Drainage in Suit to Enjoin Assessment for County Ditch, Good against Demurrer.</p> <p>Allegations by a railway company that its right of way has ample and sufficient drainage and the construction of a county ditch would be of no benefit to the company are good against demurrer in an action to enjoin the levying of an assessment against the company’s right of way for the construction of such a ditch.</p> <p>[Syllabus by the court.]</p>

<p>INSURANCE.</p> <p>1. Proof of Disability Accepted and Offer to Pay Part of Sick Benefits,, Rejection of Claim of Insured.</p> <p>Acceptance of proof of disability on the part of a policy holder and treatment of such proof as final, with an offer to pay a certain amount thereon but less than the amount claimed, constitutes a rejection of the claim by the company, and suit instituted thereon after such rejection is not prematurely brought.</p> <p>2. Insured’s Going Out for Air and to Physician’s Office for Treatment, do not Defeat Insured’s Claim of Total Disability by Sickness.</p> <p>In a policy providing for sick'benefits, a clause reading that to-constitute total disability the insured must be “strictly, necessarily and continuously within the house and there regularly and personally attended by a legally qualified physician,” does not bar recovery by an insured who, under the advice of his physician, went out for air and to his physician’s office for-treatment.</p>

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

<p>EVIDENCE — WILLS.</p> <p>1. Unqualified Opinions as to Sanity of Testator by Nonexpert Witnesses Incompetent.</p> <p>The opinions of nonexpert witnesses as to the sanity of a testator are incompetent, where such witnesses do not qualify by giving the facts coming under their observation upon which their opinions are based.</p> <p>2. Answers to Hypothetical Questions Submitted to Expert Witnesses Should be Based on Facts Testimony Tends to Prove.</p> <p>While it is not necessary that hypothetical questions submitted to expert witnesses should be based on conceded facts or be stated in the language of the witness, replies to such questions are incompetent where the questions are not based on facts which the testimony tends to prove.</p> <p>3. Delusion of Testator as to Foreign Missions, not Controlling in Making Will, not Lack of Testamentary Character.</p> <p>Lack of testamentary capacity is not shown by evidence of a religious conviction on the part of the testator upon the subject of foreign missions, where his delusion with reference thereto, if any existed, did not control the making of his will, but on the contrary he disposed of his property without reference to foreign missions except and in the event of his son and only heir dying without issue.</p> <p>[Syllabus by the court.]</p>

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

<p>EVIDENCE — WITNESSES.</p> <p>Adverse Witness may be Contradicted or Impeached.</p> <p>An adverse witness may, on proper foundation being laid, be contradicted or impeached by proof of his statements or acts inconsistent with his testimony on the trial.</p>

<p>CRIMINAL LAW — NEW TRIAL.</p> <p>•Accused Can Not Demand that He be Present at the Hearing of Motion for New Trial as Constitutional Right.</p> <p>The hearing of a motion for a new trial is not a part of the trial; hence the presence at the hearing of such motion of one convicted of a crime is mot necessary and it is error for the trial judge to refuse to hear and determine same on account of accused’s absence.</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon by the-following authorities: Aetna-Ins. Co. v. Reed, 33 Ohio St. 283; Armstrong v. Karshner, 47 Ohio St. 276 [24 N. E. Rep. 897] ; Langdon v. Insurance Co. 199 N. Y. 188 [92 N. E. Rep. 440]; Vorys-Y. State, 67 Ohio St. 15 [65 N. E. Rep. 150] ; Proseck v. State, 38 Ohio St. 606; Welker v. Toledo, 18 Ohio St. 453; Rindskopf Bros. <& Co. v. Doman, 28 Ohio St. 516; Provident Sav. L. Assur. Soc. v. Withers, 132 Ky. 541 [116 S. AY Rep. 350] ; Union Cent. L. Ins. Co. v. Kook, 62 Ohio St. 256 [56 N. E. Rep. 906] ; Bostwick v. Insurance Co. 116 Wis. 392 [89 N. AY. Rep. 538;'92 N. W. Rep. 246; 67‘L. R. A. 705n] ; United States L. Ins. Co. v. Wright, 33 Ohio St. 533; May, Insurance See. 567; Connecticut Mut. L. Ins. Co. y. Pyle, 44 Ohio St. 19 [4 N. E. Rep. 465] ; Metropolitan L. Ins. Co. v. Feliz, 73 Ohio St. 46 [75 N. E. Rep. 941; 4 Ann Cas. 121] ; Fulton v. Insurance Co. 7 Ohio (pt. 2) 5; Landis v. Kelly, 27 Ohio St. 569; Thompson, Trials Sec. 1072; Fry v. Insurance Co. 40 Ohio St. 108: Thompson, Trials Secs. 2309, 2315; Crooks v. Fldrige, 64 Ohio St. 195 [60 N. E. Rep. 2031; Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340] ; Washington Mut. Ins. Co. v. Insurance Co. 5 Ohio St. 450; White v. Thomas, 12 Ohio St. 312 [80 Am. Dec. 347]; Pittsburgh, Ft. W. Ry. v. Slusser, 19 Ohio St. 157; Hadley v. Importing Co. 13 Ohio St. 502 [82 Am. Dee. 454] ; Steel v. Kurtz, 28 Ohio St. 192.</p> <p>Cited and commented upon by the following authoritiesr McKay v. Insurance Co. 124 Cal. 270 [56 Pac. Rep. 1112] ; I May, Insurance p. 231; Kehm v. Insurance Co. 11 Dec. 739' ,(8 N. P. 542) ; Elec-tic. Life Ins. Co. v. Fahrenkrug, 68 111. 463; United States Life Ins. Co. v. Wright, 33 Ohio St. 533; 14 Am. . & Eng. Ene. Law (2 ed.) 206, 208; Floyd v. Paul, 6 Dec. Re. 1185 (12 Rec. 231) ; Hetland v. Bilstad, 140 Iowa 411 [118 N. W. Rep. 422] ; Buena Vista Co. v. Billmyer, 48 W. Va. 382' [37 S. E. Rep. 583] ; American Nat. Bank v. Hammond, 25 Colo. 367 [55 Pac. Rep. 1090] ; Clayton ~v. Cavender, 1 Marv. (Del.) 191 [40 Atl. Rep. 956]; Abat v. Segura, 6 Mart. N. S-(La.) 237; Andreivs v. Jackson, 168 Mass. 266 [47 N. E. Rep.. 412; 37 L. R. Á. 402; 60 Am. St. Rep. 390] ; Broivn v. Bayer, 91 Minn. 140 [97 N. W. Rep. 736] ; Snively v. Meixsell, 97 III.. App. 365; Stubbs v. Johnson, 127 Mass. 219; Simar v. Canaday, 53 N. Y. 298 [13 Am. Rep. 523] ; Beckwith v. Ryan, 66 Conn. 589 [34 Atl. Rep. 488] ; Equitable Life v. Maverick, 78 S. W.. Rep. 560; (Tex. Civ. App.) ; Rohr Schneider v. Insurance Co. IQN. Y. 216 [32 Am. Rep. 290] ; I Biddle, Insurance 431; Gerhard v. Bates, 2 E. &■ B. 476; Edgington v. Fitzmairice, 29-Ch. D. 459; Union Cent. L. Ins. Co. v. Potiker, 33 Ohio St. 466-[31 Am. Rep. 555],</p>

<p>MASTER AND SERVANT — RAILWAYS.</p> <p>Federal Employer’s Liability Act does not Extend to Injuries not Contributed to by Carrier's Violation of Statute for Safety of Employes.</p> <p>Section 1 of the Federal Employer’s Liability act of April 22, 1908, must be construed in connection with Sec. 4 of the act, and under the provisions of that act the relief of the employe from the assumption of the risk of his employment does not extend to any case where injury or death was not contributed to by the violation by the common carrier of some statute enacted for the safety of employes.</p> <p>[Syllabus by the court.]</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon the following authorities: McGill v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 h. R. A. (N. S.) 793; 328 Am. St. Rep. 705] ; Bowen v. Bail-way, 117 111. App. 9; Suchamal v. Maxwell, 344 111. App. 543; Webster Mfg. Co. v. Nisbett, 205 111. 275 [68 N. E. Rep. 936] ; International Packing Co. v. Kretowicz, 119 111. App. 488; Conley v.. Express Co. 87 Me. 353 [32 Atl. Rep. 965] ; Meador v. Railway, 138 Ind. 290 [37 N. E. Rep. 721; 46 Am. St. Rep. 384] ; Michael v. Stanley, 75 Md. 464 [23 Atl. Rep. 1094] ; O’Keefe v. Thorne, 16 Atl. .Rep. 737 (Pa.); Ciriack v. Woolen Co. 146 Mass. 182 [15 N. E. Rep. 579; 4 Am. St. Rep. 307] ; Bennett v. Railway, 102 U. S. 577 [26 L. Éd. 235] ; Stamford Oil Co. v. Barnes, 103 Tex. 409 [128 S. W. Rep. 375; 31 L. R. A. (N. S.) 1218] ; Dresser, Employ. Liabil. See. 114; Shearman & Redfield, Negligence (5 ed.) Sec. 704; Indemaur v. Dames, L. R. 1 C. P. 274; Ives v. Railxoay, 201 N. Y; 271 [94 N. E. Rep. 431; 34 L. R. A. (N. S.) 162; Ann. Cas. 1912 B. 156]; Southern Turpentine Co. v. Douglass, 61 Fla. 424 [54 So. Rep. 385] ; Argersinger v. Power Co. 164 Mich. 282 [129 N. W. Rep. 889] ; State v. Creamer, 85 Ohio St. 349 [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694] ; Baltimore <& O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071]; Blat.ehfield, Instructions Sec. 94; Klunk v. Railway, 74 Ohio St. 125 [77 N. E. Rep. 752] ; Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1 [75 N. E. Rep. 818] ; Mead. v. McGraw, 19 Ohio St. 55; Hazen v. Snodgrass, 33 O. C. C. 512 (14 N. 'S. 483); Cleveland Ry. v. Richerson, 10 Circ. Dec. 326 (19 R. 385).</p>

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

<p>Error to common pleas court.</p> <p>Cited and commented upon by the following, authorities: State v. Knapp, 70 Ohio St. 380 [71 N. E. Rep. 705; 1 Ann. Cas. 819] ; Stewart v.'State, 1 Ohio St. 66; Williams v. State, SO O. C. C. 342 (11 N. S. 4) ; Whitcomb v. State, 14 Ohio 282; Breese v. State, 12 Ohio St. 146 [80 Amt Dec. 340] ; Hurley v. State, 46 Ohio St. 320 [21 N. E. Rep. 645; 4 L. R. A. 161] ; Chase’s Stephen’s Dig. Ev. Art. 131, p. 327, n. 1, p. 330; Putnam v. United, States, 162 IT. S. 687 [16 Sup. Ct. Rep. 923: 40 L. Ed. 1118] ; Peters v. United States, 94 Fed. Rep. 127 [36 C. C. A. 105] ; Commonwealth v. Phelps, 77 Mass. (11 Gray) 73; Billingslea, v. State, 85 Ala. 323; State v. Hayden, 45 Iowa 11.</p>

<p>TRUSTS — WILLS.</p> <p>1. Spendthrift Trust Vests in Trustees at Death of Testator but Use to Cestui Que Trust Postponed to Conform to Purpose of Will.</p> <p>A spendthrift trust clause of a will, introduced as a “further trust” to “be raised” out of testator’s estate but not specifically fixing the time when the trust becomes effective, following a preceding clause directing the creation and fixing the time for the raising of a prior mentioned trust, and preceding a subsequent clause specifying the same date for general distribution under the will, vests the trust estate in the trustees thereof at testator’s death but postpones- the use and enjoyment by the beneficiary until the purposes of the will are developed and its assets ascertained for distribution, which is the time fixed in the* clauses preceding and following the trust clause.</p> <p>2. Spendthrift for Whose Benefit Trust is Created not Deemed to be Entitled to Greater Benefits than Heirs of Good Deportment.</p> <p>The beneficiary of a spendthrift trust, for whose benefit testator has devised the use of a full and equal share in his estate and certain annuities payable from the net income of the residuum of the estate, after division according to devises specifically directed, having been denied absolute rights in his share because “reckless in business and of dissolute habits,” will not be deemed entitled to greater benefits than heirs of good deportment and business application, especially since the provisions of the will manifest an idea of equality in final distribution.</p> <p>3. Order of Distribution of Estate of Spendthrift.</p> <p>A devise (1) by way of spendthrift trust to be raised out of testator’s estate, to be held and invested by executors for a son of testator and his heirs and assigns forever and, upon, the death of the spendthrift, of the “property” of the trust in. fee simple to his legitimate children, to be subject to advancement and conveyance absolutely to them upon the youngest child coming of age, and (2) bequest of a fixed annuity out of the net income of testator’s estate, and (3) pro rata share of the residuum after betterment and maintenance charges are paid, give the son an absolute estate in the (1) trust property subject to the rights of his children; an absolute estate In. the (2) annuities which cannot be withheld or accumulated for the benefit of the principal estate, to which the son’s executrix is entitled to an accounting and payment of any balance due at his death; and (31 the pro rata income of the residuum is payable to the son during his life from the time it becomes available and to his children after his death.</p> <p>4. Sinking Fund of Estate Applies to Accumulations from Reinvestments of Estate Property.</p> <p>An item of a will providing for a sinking fund for improvement and betterment of testator’s real estate applies to the accumulations of the principal of the estate to be derived from sales of personal and real property for purposes of reinvestment and not to accumulations from income to be used in discharge of indebtedness.</p>

<p>INSURANCE.</p> <p>Agent's Delivering Policy and Collecting Premium for Insurance, Attaching Slip Permitting Other Insurance Estops Company froth Defense of Other Insurance Contrary to Terms of Policy.</p> <p>If an agent of a fire insurance company, who has authority to write insurance, deliver the policy and collect the premium, and who has been correctly informed of other insurance on the property attaches a slip containing the following: “Other insurance permitted to the amount of $-,” to a policy which provides that it shall be void if the insured has other insurance on the property, unless the agreement is endorsed on or added thereto, that no officer, agent or other representative of the company shall have power to waive any of the provisions or conditions of the policy, delivers the policy and collects the premium, he complies with the provisions permitting concurrent insurance, and the company is estopped from defending because of other insurance known to the agent at the inception of the contract.</p> <p>[Syllabus by the court.]</p>

<p>CRIMINAL LAW — PARENT AND CHILD.</p> <p>1. Want of Knowledge by Father as to Needs of His Minor Children no Defense to Prosecution for Neglecting Them.</p> <p>A father is charged with the duty of knowing the needs of lrs minor children, seeing that provision as to their home, care, food or clothing, when required, is made; and if he is able, to make or cause such prpvision to he made. It is no defense to a prosecution under Sec. 13008 G. C. for neglecting his minor children that the father did not have notice from the mother or person having their custody that they required his assistance.</p> <p>2. Conviction Reversed for Misconduct of Counsel, Though Jury Cautioned, if Guilt not Established Beyond Reasonable Doubt.</p> <p>A judgment of conviction in a criminal case will he reversed for misconduct of counsel, though the jury he cautioned with respect thereto, if on the whole record it is not clear that the defendant was guilty heyond a reasonable douht.</p>

<p>MUNICIPAL CORPORATIONS — OFFICE AND OFFICERS.</p> <p>1. Confirmation by Village Council Prerequisite to Complete Mayor’s Appointment of Street Commissioner to Fill Vacancy as for Full Term.</p> <p>An appointment of street commissioner to fill a vacancy requires confirmation by the village council the same as an appointment for the full term as prescribed by Sec. 4363 G. C.</p> <p>.2. Appointment of Street Commissioner On or Before First Monday in February Limited to Full Year’s Term and Temporary Appointment Unauthorized.</p> <p>An appointment of street commissioner of a village on or before the first Monday in February is limited by Sec. 4251 G. C. to an appointment for a full term of a year which under Sec. 436á G. C. requires confirmation of the council; Hence, a “temporary appointment” of one whom council refuse to confirm as street commissioner to “prevent a stoppage of public business” as prescribed by Sec. 4488 G. C., which applies only to civil service employes, is unauthorized and invalid.</p> <p>XSyllabus approved by the court.]</p>

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

- The plaintiff in error was convicted of larceny in the theft of jewelry from the residence of Miss Bertha Oettinger, where he had been employed to repair some window screens. His preliminary examination occurred before Justice Muller, who testified at the trial in the common pleas that Smith admitted to him that he took the jewelry.

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

<p>Motion to dismiss petition in error.</p>

<p>ERROR — JUDGMENTS.</p> <p>Overruling Motion to Set Aside Default Judgment not Reviewable in> Absence of Showing in Record of Reason for Failure to Answer or-Demur.</p> <p>The action of a trial judge in overruling a motion to set aside a judgment granted by default will not be reviewed, where the bill of exceptions discloses no reason for the failure of the. defendant to file an answer or demurrer.</p> <p>[Syllabus by the court.]</p>

<p>MASTER AND SERVANT.</p> <p>1. Evidence as to Changes Made After Accident Competent to Define.,</p> <p>Permitting safety of appliances a witness to reply- to a question as to whether changes were not made after the accident in the appliances in which plaintiff was injured is no.t erroneous, where the court expressly admonishes the jury that the answer-is to be considered only for the purpose of testing the accuracy and weight of the opinion given by the witness, a foreman, as. to the safety of these appliances.</p> <p>2. Assignment by Foreman of Servant to Superintend Setting up Appliance is' not a Delegation of Responsibilities of Former to Relieve Employer from Negligence of Foreman.</p> <p>A foreman by appointing an inferior to superintend the setting up. of an appliance does not relieve the employer from responsibility for negligence in the discharge of the duties of such foreman so as to charge such inferior with the fault of setting up the-device in an improper or unsafe manner; hence an instruction that such servant would not be a fellow servant with his co-laborers but a foreman is inapplicable and properly refused.</p> <p>3. Unfamiliar Surroundings and Dangerous Proximity to Defective-Apparatus Coming in Contact with Simple Appliance Constructed not Chargeable against Servant Injured in Setting up Appliance.</p> <p>An employe engaged in superintending'the setting up of a heavjr appliance in an iron and steel mill, in a place with which he was not familiar, and within such close proximity to the place of operation of a traveling crane and shaker that it was likely to and did come in contact with such appliance, causing it to-fall and injure him, notwithstanding the construction and appliances were simple, does not come within the rule applying to-cases of ordinary labor with tools of simple construction with which the servant is familiar and understands and comprehends as fully as the master, and a request to instruct the jury, that such employe would not be a fellow servant with his colaborers but would stand in the same relation as a foreman, is properly refused.</p> <p>4. Equipoise Doctrine Charged.</p> <p>An instruction, that “whenever all the evidence upon a disputed point is in equipoise, the party who affirms the fact has failed to prove it,” sufficiently instructs the jury upon what is termed “the equipoise doctrine.”</p> <p>5. Failure to Request Instruction Precludes Complaint for Failure of Court so to Charge.</p> <p>Failure of defendant to request the court to charge that if both plaintiff and defendant were negligent and the negligence of both contributed to produce the injury and plaintiff would have no right to recover, precludes the defendant from claiming error for failure of the court so to instruct if the charge given be unexceptionable.</p> <p>'6, Verdict of $8,000 not Excessive for Injuries Crippling Molder for Life.</p> <p>A verdict of $8,000 in favor of a molder by trade, who is crippled for life and suffers and must continue to suffer pain, and who was receiving $3.10 a day at the time of the accident and could earn only $1.10 at the time of the trial, is not so excessive as to appear to have been given under the influence of passion or prejudice.</p>

<p>Motion to dismiss appeal.</p> <p>Cited and commented upon by tbe following authorities: Taylor v. Fitch, 12 Ohio St. 169; State v. Belmont Go. (Gomrs.) 31 Ohio St. 456; Bartol v. Eckert, 50 Ohio St. 31 [33 N. E. Rep. 294] ; Barger v. Cochran, 15 Ohio St. 460; McBoberts v. Lockwood, 49 Ohio St. 374 [34 N. E. Rep. 734]; Bay v. Sylvania, 32 O. C. C. 590 (14 N. S. 429) ; Scheidler v. Railway, 11 Circ. Dee. 203 (20 R. 453) ; Rice v. Moore, 48 Kan. 590 [30 Pac. Rep. 10] ; Bever v. Beardmore, 40 Ohio St. 70; Reeves v. Skenett, 13 Ohio St. 574; Dayton & U. Ry. v. Traction Co. 26 O. C. C. 1 (11 N. S. 329) ; LaFayette & I. R. Ry. v. Butner, 162 Ind. 460 [70 N. E. Rep. 529] ; Lorimer v. Wayne Circuit Judge, 116 Mich. 682 [75 N. W. Rep. 133] ; Phillips v. Corbin, 25 Colo. 62 [49 Pac. Rep. 279] ; French v. Lighty, 9 Ind. 475.</p>

<p>FRAUD — PLEADINGS—RELEASES.</p> <p>1. General Denial in Action Brought by Legatees to Set Aside for Fraud Releases to Life Tenant, Notwithstanding Will Showing Allegations'True is Set Out in Petition, is not Objectionable.</p> <p>Where, in an action to set aside releases obtained by a- life tenant, from legatees under the will, on the ground that the said releases were obtained by fraud, the mistake is made of incorporating the will in the petition, objection can not be made to an answer in the form of a general' denial, notwithstanding it involves a denial of allegations shown to be true by the will itself.</p> <p>2. Legatees Shown not under Duress but Dealing Openly and with Knowledge Fail to Sustain Burden of Proof of Fraud.</p> <p>The testimony having disclosed tliat the legatees were not under duress, but treated with th,e life tenant at arm’s length, and remarked that they understood their rights, and that they preferred “a bird in hand” to the contingencies in which their legacies were involved, it can not be said that they sustained the burden of proof devolving upon them, and judgment must, be given for the defendant.</p>

<p>Appeal from common pleas court.</p> <p>Cited and commented upon by the following authorities: Dickson v. Motor Co. 53 111. App. 379; New York & N. J. Tel. Co. v. Dexheimer, 14 N. J. Law 295; Northwestern Tel. Ex. Co..v. Anderson, 12 N. D! 585 [98 N. W. Rep. 706; 65 L. R. A. 771; 102 Am. St. Rep. 580] ; Millville Trac. Co. v. Goodwin, 53 N. J. Eq. 448 [32 Atl. Rep. 263] ; Williams v. Railway, 130 Ind. 71 [29 N. E. Rep. 408; 15 L. R. A. 64; 30 Am. St. Rep. .201] ; Fort Madison St. Ry. v. Hughes, 137 Iowa 122 [114 N. W. Hep. 10; 14 L. K. A. (N. S.) 448] ; Toledo, B. G. & So. Trac. Go. v. Sterling, 29 O. C. C. 227 (9 N. S. 200) ; Cleveland Tel. Co. v. South Newburgh, 52 Bull. 173 (4 N. P. N. S. 624).</p>

<p>ERROR-LIMITATION OF ACTIONS.</p> <p>Belated Proceeding In Error not Saved by Provisions for Commencement of,Civil Action.</p> <p>If a summons in error is not issued within the four months’ statutory limit prescribed by Sec. 6723 R. S. (G. C. 12270), the proceeding is not saved by the provision of Sec. 4988 R. S. (G. C. 11231) as to the commencement of actions, and jurisdiction thereof is not acquired by the reviewing court.</p> <p>[Syllabus by the court.]</p>

<p>DRUGS AND DRUGGISTS — INTOXICATING LIQUORS.</p> <p>Drug Store May be Subjected to Payment of Dow Tax for Sales on Unlawful Prescriptions and Injunction Refused to Prevent Tax by Distraint.</p> <p>Prescriptions calling for beer or other intoxicating liquor can not be accepted as issued in good faith, notwithstanding the good repute of the physician issuing them has not been called in question, where the writings themselves are not produced, and the testimony regarding them is that the so-called patients went to the physician and specified what they wanted, sometimes specifying the number of bottles wanted, whereupon the physician would write a prescription calling for a certain amount of beer or other liquor and in some cases would add the word “refill,” but gave no direction as to how the liquor was to be taken; and sales of beer or other intoxicants upon such prescriptions are unlawful, and subject the owner of the store as well as the owner of the real estate to liability for the Dow tax, and injunction will not lie to prevent collection ' of the tax by distraint.</p> <p>[Syllabus by the court.]</p>

<p>PARTITION.</p> <p>Title of Claimant of Aliquot Part of Land Held in Severalty must be Determined before Partition.</p> <p>Where the ownership of one of the aliquot parts of land held in severalty is in dispute, an action in partition can not be maintained by the party claiming said interest until his title thereto, has been determined.</p> <p>[Syllabus by the court.]</p>

<p>PARTITION.</p> <p>1. Conflicting and Inconsistent Elections in Partition Refused and Sale Procedure Adopted not Erroneous.</p> <p>It is not error in an action for partition for the court to refuse to accept inconsistent and conflicting elections by parties in interest, and in lieu thereof adopt the procedure of ordering a sale.</p> <p>.2. Bad Faith of One without Means to Consummate Election Made not Assumed.</p> <p>Bad faith can not be assumed upon an election to take by a party in interest who is without means of his own with which to make good the obligations assumed under an election to take, where it appears that he is able to make arrangements for meeting the obligations through the aid of others.</p>

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

<p>SPECIFIC PERFORMANCE.</p> <p>1. Specific Performance not Barred by Existence of Mortgages against Land Involved.</p> <p>The existence of mortgages on land involved in an action for specific performance does not bar relief, where willingness is shown on the part of the mortgagees to accept the amount of the indebtedness and cancel the mortgages.</p> <p>2. Petition in Specific Performance Averring Plaintiff’s Readiness to Perform Sufficient without Tender.</p> <p>A petition in an action for specific performance, which alleges that the plaintiff is ready and willing to perform and has offered so to do but has been met by refusal and repudiation of the contract by the defendant, is not open to demurrer on the ground that no sufficient tender is averred.</p> <p>3. Payment of Purchase Money Due on Complex Contracts for Purchase and' Sale Sufficient for Specific Performance.</p> <p>Under the contracts for the purchase and sale of land involved in the present pase, the plaintiff is entitled to a decree of specific performance upon paying into court the amount of purchase money due.</p>

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

Plaintiff in error seeks to reverse a judgment of tbe court of common pleas in favor of tbe defendants in error rendered on aeres more or less; that by the terms of the lease the lessee was to begin mining said coal within six months from the date of the same, and from thence forward to diligently prosecute the mining without discrimination or unfairness, until all the minable coal in said premises should be mined, and to pay for each 2000 pounds of coal the sum of ten…

Mandamus. The relator is the duly elected, qualified and acting prosecuting attorney of Hamilton county, Ohio, and is required by law to prosecute on behalf of the state of Ohio all complaints, suits and controversies in which the state is a party within said county.

<p>Error to common pleas court.</p> <p>The Federal Employers’ Liability act of 1908, and Sec. 5 thereof applies and is constitutional, Pittsburgh, C. C. & St. L. By. v. Cox, 55 Ohio St. 497 [45 N. E. Rep. 641; 35 L. R. A. 507] ; Chicago, B. <& Q. By. v. McGuire, 219 U. S. 549 [31 Sup. Ct. Rep. 259; 55 L. Ed. 328] ; Mondou v. Bail-way, 223 U. S. 1 [38 L. R. A. (N. S.) 44; 56 L. Ed. 327] ; Philadelphia, B. & W. By. v. Schubert, 224 U. S. 603 [56 L. Ed. 911] ; McCulloch v. Maryland, 17 IT. S.(4 Wheat.) 316 [4 Ed. 579] ; Smith v. Alabama, 124 U. S. 465 [8 Sup. Ct. Rep. 564; 31 L. Ed. 508]; Sherlock v. Ailing, 93 U. S. 99 [23 L. Ed. 819] ; Nashville, C. & St. L. By. v. Alabama, 128 U. S. 96 [9 Sup. Ct. Rep. 28; 32 L. Ed. 352] ; Beid v. Colorado, 187 U. S. 137 [23 Sup. Ct. Rep.. 92; 47 L. Ed. 116] ; Bodd v. Eeartt, 88 U. S. (21 Wall.) 558 [22 L. Ed. 654] ; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 [5 Sup. Ct. Rep. 826; 29 L. Ed. 159] ; Gulf C. & S. F. By. v. Eefley, 158 IT. S. 98 [15 Sup. Ct. Rep. 802; 39 L. Ed. 910] ; Southern By. v. Beid, 222 U. S. 424 [17 Ann. Cas. 247; 56 L Ed. 253] ; Northern P. By. v. Washington, 222 U. S-. 370 [56 L. Ed. 237]; Claflin v. Eouseman, 93 IT. S. 130 [23 L. Ed. 833] ; Detroit, T. & 1. By. v. State, 82 Ohio St. 60 '[91 N. E. Rep. 869; 137 Am. St. Rep. 758],</p> <p>Liberty of contract, Chicago, B. & Q. By. v. McGuire, 219 U. S. 549 [31 Sup. Ct. Rep. 259; 55 L. Ed. 328] ; Atlantic Coast Line By. v. Biverside Mills, 219 U. S. 186 [31 Sup. Ct. Rep. 164; 55 L. Ed. 167; 31 L. R. A. (N. S.) 7n] ; Baltimore <& O. By. v. Commerce Comrs. 221 U. S. 612 [31 Sup. Ct. Rep. 621; 55 L. Ed. 878] ; Crowley v-. Christensen, 137 U. S. 86, [11 Sup. Ct. Rep. 13; 34 L. Ed. 620] ; Jacobson v. Massachusetts, 197 IT. S. 11 [25 Sup. Ct. Rep. 358; 49 L. Ed. 643] ; Frisbie v. United States, 157 U. S. 160 [15 Sup. Ct. Rep. 586; 39 L. Ed. 657] ; Addyston Pipe <& Steel Co. v. United States, 175 U. S. 211 [20 Sup-. Ct. Rep. 96; 44 L. Ed. 136] ; Patterson v. Fudora, 190 U. S. 174 [23 Sup. Ct. Rep. 821; 47 L. Ed. 1002] ■; Louisville & N. By. v. Mottley, 219 U. S. 467 [31 Sup. Ct. Rep. 265; 55 L. Ed. 297; 34 L. R. A. (N. S.) 671] ; State v. Boone, 84 Ohio St. 346 [95 N. E. Rep. 924] ; State v. Boone, 85 Ohio St. 313 [97 N. E. Rep. 975; 39 L. R. A. (N. S.) 1019] ; State y. Creamer, 85 Ohio St. 349’ [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694] ; Philadelphia, B. & W. By. v. Schubert, 224 U. S. 603 [56 L. Ed. 911].</p> <p>Motions to direct verdmt, Dick v. Bailway, 38 Ohio St. 389; Donegan v. Bailway, 165 Fed. Rep. 869 [91 C. O. A. 555],</p> <p>Negligence in operating the defective car, Pennsylvania Co. ■v. McCann, 54 Ohio St. 10 [42 N,E. Rep. 768; 31 L. R. A. 651; 56 Am. St. Rep. 695] ; Columbus, H. V. & T. By. v. Erick, 51 Ohio St. 146 [37 N. E. Rep. 128] ; Templeton v. Kraner, 24 Ohio St. 554; Cincinnati Trac. Co. v. Reich, 18 Dee. 631 (5 O. L. R. 574) ; Hesse v. Railway, 58 Ohio St. 167 [50 N. E. Rep. 354] ; Patten v. Railway, 179 TJ. S. 658 [21 Snp. Ot. Rep. 275; 45 L. Ed. «361].</p>

<p>DIVORCE.</p> <p>Rendition of Divorce Decree Fixes Status of Parties Eo instanti. Opening Decree and Dismissing Petition Erroneous.</p> <p>The rendition of a decree of divorce fixes the status of the parties eo instanti, and the marital relation thus severed can be restored only by consent of the parties and their remarriage, the trial court thereafter has no jurisdiction to open decree and dismiss petition.</p>

<p>Error to common pleas court.</p> <p>Cited and commented upon by the following authorities: Jones v. Railway, 10 Dee. 348 (7 N. P. 592); 'Rhoenix Ins. Co. v. Romeis, 8 Circ. Dec. 633 (15 R. 697); Burdge v. State, 53 Ohio St. 512 [42 N. E. Rep. 594]; Turpin v. State, 19 Ohio St. 540; Morgan v. Spangler, 20 Ohio St. 38; Kroll v. Close, 82 Ohio St. 190 [92 N. E. Rep. 29; 28 L. R. A. (N. S.) 571] ; Lake Shore & M. S. Ry. v. Liidtk, 69 Ohio St. 384 [69 N. E. Rep. 653] ; Gale v. Priddy, 66 Ohio St. 400 [64 N. E. Rep. 437] ; Blake v. Davis, 20 Ohio 231; Leach v. Church, 10 Ohio St. 148; Fries v. Mack, 33 Ohio St. 52; Schiveinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89] ; Drea v. Carrington, 32 Ohio St. 595; Zumstein v. Mullen, 67 Ohio St. 382 [66 N. E. Rep. 140]; Logan Nat. Gas <& Fuel Co. v. Chillicothe, 65 Ohio St. 186 [62 N. E. Rep. 122]; Sedgwick, Stat. Interp. 225; Sutherland, Stat. Const. Secs. 218, 219; Cincinnati v. Guckenberger, 60 Ohio St. 353 [54 N. E. Rep. 376]; Robbins v. State, 8 Ohio St. 131; DeBolt v. Insurance Go. 1 Ohio St. 566; Ilenry v. Perry Tp. (Tr.), 48 Ohio St. 671 [30 N. E. Rep. 1122] ; Chinese Merchant, In re, 13 Fed. Rep. 605; Woodworth v. State, 26 Ohio St. 196; State v. Nye, 21 Dec. 419 (11 N. S. 616) ; State v. Goshen Tp, (Tr.) 14 Ohio St. 569; Allen v. Little, 5 Ohio 65; State v. Miller, 21 Dec. 643 (9 N. S. 247); Foster v. Wood Co. (Comrs.) 9 Ohio St. 544; Cass v. Dillon, 2 Ohio St. 609; Kelley v. Kelso, 5 Ohio St. 200; Exchange Bank v. Hines, 3 Ohio St. 1; State v. Blake, 2 Ohio St. 147; Cincinnati v. Conner, 55 Ohio St. 89 [44 N. E. Rep. 582] ; Hall v. Seigrist, 13 Dec. 46; State v. Kinney, 11 Circ. Dee. 261 (20 R. 325); Horton v. Horner, 16 Ohio 146; State v. Wright, 17 Ohio 32; A.ultman v. Guy, 41 Ohio St. 599; Westlake v. Westlake, 47 Ohio St. 315 [24 N. E. Rep. 412]; State v. Railway, 32 Fed. Rep. 722; Ellis v. Whitlock, 10 Mo. 781; Fath Construction Co. v. Bausmerth, 33 O. C. C. 382 (15 N. S. 150); Burt v. Rattle, 31 Ohio St. 116; McGarvey v. Raih way, 83 Ohio St. 273 [94 N. E. Rep. 424] ; Lake Shore & M. S. Ry. v. Benson, 85 Ohio St. 215 [97 N. E. Rep. 417] ; Glass v. Heffron Co. 86 Ohio St. 70 [98 N. E. Rep. 923] ; Black v. Hill, 32 Ohio St. 313; Kilbourn v. Fury, 26 Ohio St. 153'; Foster v. Borne, 56 Ohio St. 772,; Independent Coal Co. v. Bank, 27 O. C. O. 297 (6 N. S. 225) • Studer v. State, 29 O. C. C. 33 (9 N. S. 385); Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 382 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640],</p>

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

<p>BANKRUPTCY.</p> <p>1. Debt of Bankrupt not Discharged by Misnaming Creditor by Bankrupt.</p> <p>A debt of a bankrupt due William J. Davidson is not discharged by scheduling it in the name of William F. Davison.</p> <p>2. Action by Creditor not Collateral Attack upon Bankruptcy Charge.</p> <p>An action by Davidson on his debt against the bankrupt would not be a collateral attack upon the discharge in bankruptcy.</p> <p>[Syllabus by the court.]</p>

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

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