Volume 26 — Ohio Circuit Court Reports, New Series

<p>CHILD KILLED BY HEAVY BOX FALLING UPON IT.</p> <p>Negligence Per Se — Where an Accident Results from, Violation of a Municipal Ordinance — Doctrine of Res Ipsa Loquitur Applied to Case of a Child Killed by Fall of Mortar Box on the Sidewalk-Error in Attempting to Show Contributory Negligence by Cross-Examination of Plaintiff’s Witness.</p> <p>1. Where injury results from the leaving of a heavy movable article on or over the sidewalk, in violation of a municipal ordinance, a case is presented of negligence per se.</p> <p>2. Moreover, where a child two years old is killed by the falling upon it of a heavy mortor box, which had been left leaning against a ■ building, with the lower end resting on the sidewalk and at such an angle as to probably create a condition of unstable equilibrium, •the doctrine of res. ipsa loquitur is applicable, and in the absence of any explanation as to how the box happened to fall, it is error, in' an action for death of the child, to direct a verdict for the defendant.</p> <p>3. Inasmuch as it is not incumbent upon plaintiff to show contributory negligence, it is error to permit counsel for the defendant to cross-examine plaintiffs' witness in such a manner as to tend to establish such negligence, but in a case where the court arrested the case from the jury the error was without prejudice.</p>

<p>OWNERSHIP OF RENTS.</p> <p>Rents — Belonging to the Owner of the Reversion at the' Time the Rent' Becomes Due — Purchaser Not Entitled Thereto until Title- Passes.</p> <p>Rent payable in advance, which accrues after, a contract for sale of. the premises has been entered into but before the execution and delivery of the deed, belongs to the grantor and can not be recovered from him by the grantee after consummation of the sale.</p>

<p>LIABILITY OF CORPORATION IN HANDS OF A RECEIVER. FOR. THE EXCISE TAX.</p> <p>Taxation — Corporation in Hands of a Receiver — Liable for the Excise Tax, Unless.</p> <p>1. A receiver of a corporation is liable for the excise tax, unless there is an entire cessation of the business and the work of the receiver is confined to mere liquidation of the assets and distribution of the proceeds among the creditors.</p> <p>2. In cases of prolonged liquidation made necessary by court proceedings, the hardship upon creditors and stockholders of an excise tax may be minimized by a surrender of the charter or dissolution of the corporation and the filing of a certificate thereof by virtue of the provisions of Section 11974-5,' G-. C.</p>

<p>EVIDENCE OF AN'OLD DEED AS TO POWER. OF EXECUTRIX TO SELL.</p> <p>Ancient Documents — Action by an Heir to Recover Property Sold by the Executrix — Records Destroyed by Court House Fire — Recital of Old Deed as to Power of Executrix to Sell to Pay Legacies-r-Competent Evidence of Such Power — Running of the Statute of Limitations Against Assertion of an Interest in Land Under a Devise.</p> <p>1. Where an interest in realty vests upon the death of the life tenant, the running of the statute of limitations against the assertion thereof is not stopped by the transfer of the property by an ancestor.</p> <p>2. A deed made by an executrix almost fifty years ago, containing the recital that the executrix was given full power to convey, but without a specific statement of such power as contained in the will, is competent as evidence of such power, where the original records have been destroyed and the possession of the property has been ' consistent with the terms of the deed; and such proof is sufficient to sustain a title depending upon the existence of such power and casts the burden upon those seeking to impeach it.</p> <p>3. The evidence in this case creates a strong inference that a necessity arose to sell real estate belonging to the testator in order to pay pecuniary legacies and prevents a reversal of the judgment by a reviewing court as against the weight of the evidence.</p>

<p>PRIORBTY UNDER. A BUILDING CONTRACT.</p> <p>Mechanic’s Liens — Legality of Payments to Sub-Gontr actors and Material-Men on the Lay of the Filing of a Lien — Right to Pro Rate Lost by Failure to File Statements With Owner.</p> <p>An owner is not required to stop payment of checks mailed to subcontractors and material-men on the same day a mechanic’s lien was filed by a creditor not included among those to whom checks were sent, where the amount remaining due from the owner is more than the total amount of the checks and the lien; but subcontractors and material-men who failed to file with the owner itemized statements of the amounts due them within ten days after the filing of the lien are not entitled to pro rate with the lien-holder and the payees of the checks.</p>

<p>DEVISE OF “ THE INCOME ” HELD TO MEAN THE WHOLE INCOME OF THE ESTATE.</p> <p>Wills — Devise to Widow of “the Income,” together with Certain Specific Bequests — Words “the Income” Construed to Mean all the Income from the Testator’s Estate.</p> <p>The bequest “the income hereinafter devised to my said wife in lieu of her dower and all other interests in my estate as widow.” in the absence of any reference to any income to accrue to the trustees or any direction as to its investment or disposal, is construed as importing an intention to give all the income to the widow during her lifetime.</p>

<p>REFERENDUM WITH REFERENCE TO THE OPENING OF A NEW STREET.</p> <p>Municipal Corporations — Injunction Prayed Against Opening of a New Street — Passage of an Ordinance to Appropriate the Land Necessary is an Implied Repeal of a Previous Appropriating Ordinance — Referendum should he on the Ordinance and Not on the Preliminary Resolution.</p> <p>1. In proceedings for the appropriation of land by a municipality, the ordinance to appropriate is the controlling act, and it and not the preliminary resolution is the measure on which a referendum should be taken where the referendum vote of the people is desired.</p> <p>2. Where two or more ordinances have been passed by a municipal council appropriating strips of land to open a street between subtantially the same points, such strips not being identical but in part overlaying each other, the fact that the earlier ordinance has not been expressly repealed would not be sufficient reason to prevent proceedings under the last ordinance.</p>

<p>SURETY RECOMPENSED FOR. COSTS.</p> <p>Successor in the Trust Bound by Agreement Previously Entered Into by Order of Court — Fund Bound for Expenses of Surety.</p> <p>A clause in a contract of suretyship, procured by order of court by a receiver, wherein it was agreed that the surety should be saved from costs and expenses, is binding on the successor of said re- ° ceiver and the fund in his hands is liable thereunder, and the claim does not lie that the said agreement was entered into by the original receiver in his individual capacity.</p>

<p>LIABILITY OF MUNICIPALITY FOR INJURY FROM EXPLOSION OF A PEANUT ROASTER. ON THE STREET.</p> <p>Municipal Corporations — Peanut Roaster Explodes on street — City Liable for Negligence to One Injured Thereby.</p> <p>A cause of action is stated by a petition alleging that through the negligenee of the defendant municipality the operation was permitted of a peanut roaster on the streets of said city, which said roaster exploded and a part thereof struck plaintiff to his injury; and where there is evidence tending to establish the truth of said allegation, it is error to arrest the case from the jury and give judgment for the municipality.</p>

<p>ENGINEER. KILLED BY PASSING TRAIN WHILE OFF HIS ENGINE.</p> <p>Negligence — Locomotive Engineer Not a Trespasser — When Momentarily off His Engine on Another Track — Duty of a Railway Company Toward One on Its Track Before an Approaching Train.</p> <p>1. A locomotive engineer, who leaves his engine for a few moments and walks a short distance to another track where he sits down on the end of a tie, does not thereby become a trespasser upon such other track nor cease to be acting in the course of his employment.</p> <p>2. Railways will be held to at least as high a degree of care in the avoidance of injury to human beings as in the case of live stock trespassing upon their right-of-way.</p> <p>3. Evidence that the engineer of the train, which killed the decedent while running at very high speed, failed to blow his whistle as soon as he discovered the decedent, is sufficient to send the case to the jury.</p>

<p>JURISDICTION ACQUIRED THROUGH MISTAKEN ACTION OF THE DEFENDANT.</p> <p>Jurisdiction — "Where Objected to, Objection Should be Insisted on to the End — Filing of Answer, After Such Objection Has been Overruled, Equivalent to Entry of Appearance — Error in Dismissing ' Cause.</p> <p>1. A party desiring to insist that he is not in court must keep out of court for all purposes except to make that objection; and where he does not do that, but files an answer and when trial is called appears by counsel, but fails to continue to challenge the jurisdiction of the court, he thereby voluntarily enters his appearance and consents to the exercise of jurisdiction over both his person and the subject-matter.</p> <p>2. Some evidence having been offered in such a case, tending to support the allegations of the petition, it is error to grant a motion to dismiss on the ground that the petition is not supported by evidence and the court is without jurisdiction.</p>

<p>ERROR. !N WITHDRAWING A WILL CASE FROM THE JURY.</p> <p>Wills — Procedure for Contest of Will — Motion to Direct a Verdict for Defendants Does Not Lie, When — Trial Judge May Not Weigh the Evidence After the Presumption of Probate Has Been Overcome.</p> <p>1. Where, in a will contest, there is evidence offered hy the contestants which overcomes the presumption arising from the prohate of the will, the case must he referred to the jury for determination as to the weight of the evidence, and the granting, under such circumstances, of a motion to arrest the case from the jury and give judgment for the defendants is error.</p> <p>2. In the opinion of a majority of the court there was evidence offered hy the contestants in the instant case sufficient to overcome said presumption, and a submission of the case to the jury was therefore required.</p>

<p>APPEAL IN THE MATTER. OF A TOWNSHIP DITCH.</p> <p>Bitches — Time for Perfecting an Appeal — Where Claims for Damages Have Been Rejected — Runs from the Date of the Order of Location —Section 6648. »,</p> <p>An appeal from the order of a joint board of tbwnship trustees, rejecting claims on account of land taken and other damages on account of the construction of a proposed township ditch, should be filed within eight days from the entering of the order locating and establishing said ditch, and is rendered ineffective by construing the time for perfecting said appeal to be within eight days from the date of the order apportioning the construction among the parties interested.</p>

<p>ABANDONMENT OF EASEMENT BY RAILWAY COMPANY.</p> <p>Canal Right-Of-Way Acquired by Railway — Plot of the Canal Land Not Used by the Railway — Circumstances Which Are Held to Show Intention to Abandon its Basement Therein — Prescriptive Rights also Acquired by Adjacent Owners Who Appropriated the Land to Their Own Use.</p> <p>A railway company appropriated an old canal bed with all the privileges and appurtenances of whatever nature connected therewith, which included a basin containing about ten acres of land theretofore used in turning boats. The basin was not needed by the railway, and in time dried up, and was continuously farmed by the adjacent owners for almost fifty years, when the railway asserted title to an easement therein, and caused this land to be transferred to its name for taxation. During the long interval the railway had been required to fence its road, and in doing so built a fence which followed the line of the railway track, and did not include the basin. In an action by the adjacent owners, - whose deeds covered this basin, to have their titles quieted, Held:</p> <p>That the railway company in taking over the right-of-way of the canal company, which included this tract of land, took more than it needed or has had occasion to use, and by its acts in not including this land with its own property for taxation, and in placing its fence as it did, and in permitting others to use the land without hindrance, evinced an intention to abandon its easement therein, and the plaintiffs are entitled to a decree quieting their title as against such easement.</p>

<p>JURISDICTION IN THE MATTER. OF A ROAD IMPROVEMENT.</p> <p>Roads — Whether Requisite Number of Land Owners Have Petitioned for a Road Improvement, Determined How — Part of Section 6029 of the Garrett Law Void for Uncertainty.</p> <p>Whether county commissioners have jurisdiction under the Garrett law to proceed with a road improvement is to be determined by the provision of Section 6926 for a petition by “a majority of the resident owners of real estate situated within one mile of the road,” without reference to a provision of Section 6929 which eliminates “land owners residing within a municipality,” the said provision of Section 6929 being void for uncertainty.</p>

<p>VALIDITY OF JUDGMENTS AGAINST EMPLOYERS NOT COMPLYING WITH THE COMPENSATION ACT.</p> <p>Workmen’s Compensation Act — Construction of Section 27 — Non-Complying Employers Properly Within Its Provisions — Quasi-Judicial Powers of the Administrative Board — Notice—Hearings—Bight of Trial by Jury — Conclusiveness of the Award — Provisions for Furnishing State’s Counsel for Enforcing Judgments and Penalties.</p> <p>1. The constitutional amendment relating to workmen’s compensation is an enabling provision, as distinguished from a limitation, and should be liberally construed. Its obvious intent is to transfer the subject of workmen’s compensation to an administrative board with summary powers, and the power to enact a compulsory law necessarily implies power to make it effective.</p> <p>2. The provisions of Section 27 of the workmen’s compensation act, authorizing an award against an employer who has failed to comply with the act and, in case of his refusal to pay, that an action be brought in the name of the state for the benefit of the person entitled thereto for recovery of the amount of the award with a .penalty of fifty per cent, added, is within 'the constitutional amendment relating to compensation acts.</p>

<p>ADMINISTRATION OF PROPERTY IN THE NAME OF A BRANCH OF A FRATERNAL ORGANIZATION.</p> <p>Mutual Benefit Societies — Property in the Name of a Branch Organization Subject to Claims of Beneficiaries of the Parent Society, When.</p> <p>Where a subsidiary body is officered by the same officers as those who control and dominate the parent body, and has as its purpose the rendering of assistance to the parent body, and its purpose and character has always been so understood by all the members of the parent body and has always been so declared and those who became members of the parent organization did so in the belief that it embraced this subsidiary property in the hands of a receiver and standing in the name of- the subsidiary will be administered for the benefit of the parent body.</p>

<p>JURISDICTION IN AN ACTION FOR. INJURY BY A MOTOR VEHICLE.</p> <p>Justice of the Peace — Jurisdiction of, if Any Has Been Conferred — In Actions for Injuries Caused by Motor Vehicles■</p> <p>Section 6308, providing that actions for injury to a person or property, caused by the negligence of the owner of a motor vehicle, may be brought in the county wherein the injured person resides, does not confer jurisdiction on a justice of the peace in a township other than the one where the injury complained of occurred.</p>

<p>NO APPEAL IN ACTIONS TO ENFORCE MECHANICS’ LIENS.</p> <p>Mechanics’ Liens' — Are Purely Statutory — -Both in the Bight Itself and in the Method of Enforcing it — Had, no Existence in Chancery, and Actions in foreclosure of Such Liens Are Not Appealable.</p> <p>An action to foreclose a mechanic’s lien is not cognizable in equity and therefore not appealable.</p>

<p>MENTAL CAPACITY OF A TESTATOR..</p> <p>Wills — Contest of — Error in Admitting Opinion of Witness as to the Mental Capacity of the Testator.</p> <p>In an action to set aside a will, the question of the mental capacity of the testator is for the jury, and it is error to permit a question to be answered which calls for the opinion of the witness as to whether the testator was capable of making a will.</p>

<p>AS TO WHETHER. APPEARANCE WAS ENTERED BY THE DEFENDANT.</p> <p>Defendant Foreign Corporation — Challenges the- Jurisdiction of the Court — Defective Affidavit in Attachment</p> <p>1. A reviewing court is bound by tke record, and wkere so far as is disclosed by the record the defendant appeared for the sole purpose of challenging the jurisdiction of the court, an entry of appearance can not be claimed, notwithstanding the statements by counsel that other motions were also filed by the defendant.</p> <p>2. An affidavit for attachment is clearly defective, which does not negative the exceptions found in the statute. ■ " •</p>

<p>VOID TRANSACTION BY A SALES ACENT.</p> <p>Agency — One Employed to Sell — Can Have no Interest in the Subject-Matter of the Sale or Earn a Profit Thereby — Unless Hone with the Full Knowledge and Consent of Both Principals — No Relief in Law to Either Party to Such a Transaction — Revision of Interlocutory Orders in a Common Pleas Court Composed of Several Judges.</p> <p>1. In counties in which the common pleas court is composed of two or more judges, a ruling by any one of the judges on an interlocutory matter is the ruling of the court, and the judge who has the case on final hearing is at liberty to correct errors of law previously made, whether made by himself or by another judge.</p> <p>2. A contract entered into by a sales agent of a sugar refining company, whereby he was to sell to the parties of the other part one thousand barrels of sugar at the then market price, the sugar to be resold by said parties upon delivery, which was to be delayed as long as possible, and the profits or losses from the purchase and sale to be then equally divided between the sales agent and the parties of the other part, is void as against public policy, and demurrer lies against an action by the sales agent to recover the share claimed by him of said profits.</p> <p>3. A contract entered into by P with one of two partners in business, whereby without the assent of the other partner, P was to be permitted to share in the profits of. the said partnership, is not en-forcible;</p>

<p>PAINTER INJURED BY THE BREAKING OF A LADDER.</p> <p>Negligence — Employer Not Liable to Employee for Injury — Where the Employee Deliberately Elects “to Tahe the Chance” — Proximate Cause — Admissibility in Evidence of a Conversation by Telephone.</p> <p>Two painters, who had protested that one of the ladders furnished them was unsafe, received a telephone message from their employer in which he said he could not afford to buy new ladders, and telling them, according to one witness, to “come in,” and according to another witness to “go ahead and do the best you can.” Fearing that if they heeded a call to “come in” they would either be laid off or . given less desirable work, they agreed between themselves that they would stay and “take a chance.” The ladder broke and one of the men fell and was injured. Held:</p> <p>That the going to work, under the circumstances presented, constituted the original act of negligence and was the proximate cause of the injury.</p>

<p>ACTION TO RESTRAIN PAYMENT OF SCHOOL CLAIMS.</p> <p>Injunction — Sought Against Payment of Claims ly a School Boards Equity — Parties.</p> <p>An action does not lie to enjoin payment of claims which have not been liquidated or are not yet due, the owners of which have not been made parties.</p>

<p>EXEMPTION FROM TAXATION AS A CONDITION OF PURCHASE.</p> <p>Municipal Corporations — Land Purchased for a Bouelvard — Sale Conditioned on Exemption from Assessments for Improvement and Maintenance — Condition as to Maintenance-Void as Against Public Policy.</p> <p>1. Where a city, having' statutory authority to acquire land for street purposes and assess the cost upon the general tax list, purchases land to be used as a boulevard, and as a consideration for such land agrees that such land shall be improved for boulevard purposes within ten years, and that no special tax or assessment for the improvement thereof or the maintenance of said boulevard will ever be levied or assessed against the property abutting' said boulevard, except such as is levied in the general levy for park purposes, and where the deed for such property is executed by the grantor and delivered to the city and the city takes possession of such land and improves the same in accordance with the terms of the deed, it will be enjoined from assessing the cost of such improvements against the abutting lands of the grantor.</p> <p>2. That part of such agreement providing that the abutting lands of the grantor shall never be assessed for the maintenance of such boulevard is against public policy and is void.</p>

<p>CONDITIONAL DEDICATION OF LAND FOR PUBLIC STREETS.</p> <p>Municipal Corporations — Dedication of Land for a Street a Matter of Good Faith Immaterial Whether it is Treated as a Grant or a Sale— Conditions Upon Which a Dedication is Made Will he Upheld, When.</p> <p>1. A dedication of land for streets may impose any conditions not inconsistent with public policy and which do not take the dedicated property from the control of the public authorities.</p> <p>2. Dedication rests upon good faith, and in so far as good faith requires the parties to comply with the contract and is not inconsistent with a sound public policy, the conditions contained in a dedication will be sustained.</p>

<p>AMOUNT OF PROPOSED ISSUE OF SCHOOL BONDS REDUCED.</p> <p>Schools — Discretion of a Board Will Not be Interfered With by the Courts, Unless — But a Bond Issue Must Not -Exceed the Proper Relation to the Tax Valuation of the Property of the District.</p> <p>1. The courts will not interfere with a board of education in the tran- , saction of its business, unless it affirmatively appears from clear and convincing proof that the acts complained of amount to a gross and wanton abuse of discretion.</p> <p>2. The court finds that statutory provisions will not permit of a bond issue by. the defendant special school district in excess of $18,000 for the erection of a new school building, and the issue of bonds in excess of that amount is enjoined.</p>

<p>FAILURE OF AN IMPROVEMENT TO CONFER. BENEFITS.</p> <p>Assessments — Street Improved Under the Benefit Plan — Right of Abutting Owners to Enjoin Collection of Assessment Where no Benefits Were Conferred.</p> <p>Failure on the part of an owner of property to file objections to a proposed assessment for a street improvement under the benefit plan under the provisions of Section 3848, does not bar him from bringing an action under Section 12075 to enjoin the collection of such assessment, where the ground of the injunction is that no benefit whatever has been conferred oy reason of the improvement upon the lands so assessed.</p>

<p>PROOF OF TITLE TO A NOTE UPON WHICH SUIT HAS BEEN ENTEREp.</p> <p>Promissory Notes — Burden of Proof as to Title — Where in the Hands of a Third Party After Maturity — Finding of Jury as to Title Will Not he Disturbed, When — Charge of Court.</p> <p>Í. A trial judge is not bound to give to the jury written charges before argument which embody abstract propositions of law, however sound, unless they are applicable to the pleadings and the particular facts developed during the hearing.</p> <p>2. Where the defendant, in an action on a note, denies that the plaintiff became the owner in good faith before due, but on the contrary was aware of infirmity in the note and that defenses would be in- . terposed thereto, and testimony is offered in support of these allegations, the burden, of proof is cast upon the plaintiff to establish his title, if he has not already done so, by affirmative proof; and where the jury has found that the plaintiff did not become the owner of the note in good faith for value before maturity and without notice of defect in the title of the person negotiating it, a reviewing court will not reverse the judgment as against the weight of the evidence, unless the court is satisfied upon the whole record that the judgment is manifestly against the evidence.</p>

<p>AS TO DAMAGES SUSTAINED FROM THE COLLAPSE OF A BUILDING.</p> <p>uld Building Heavily Loaded — Collapses During a Flood — Issue as to Whether the Flood or the Load Negligently Placed Caused the Loss.</p> <p>One whose negligence, concurring with an extraordinary-occurrence in the natural world resulted in serious loss, can not be held liable for the damage so sustained; but the question whether the two causes concurred in bringing about the loss should be submitted to the jury.</p>

<p>PARTITION AMONG “ LIVING HEIRS.”</p> <p>Pleading — Averment as to Whether Property Sought to he Partitioned is Ancestral Arises in Partition, When — Bequest to “Living Heirs.”</p> <p>Where a testator bequeaths the residue of his property to his “living heirs” and leaves surviving him both brothers and sisters and half- • brothers and half-sisters, a demurrer lies to a petition filed by a half-brother for partition of property passing under said bequest, where there is nothing in the petition to show whether the property is ancestral or non-ancestral.</p>

<p>JURISDICTION OF STATE COURTS OVER RAILWAYS ENGAGED IN INTERSTATE COMMERCE.</p> <p>{Spence, Pollock and Metcalfe, of the Seventh District, sitting in place of Judges of Second District.)</p> <p>Service of Summons — Under Section 11272 Upon Kailway Companies Operating Roads Within the State — Jurisdiction of State Courts Over Railways Engaged in Interstate Commerce.</p> <p>1. Jurisdiction of the state courts over the person of a railroad company engaged in interstate commerce, to enforce the rights of employees arising under the federal employers act of April 22, 1908, as amended in 1910, for injuries received while engageu in interstate commerce, is not enlarged by that act, but depends upon the jurisdiction prescribed by the state laws.</p> <p>2. Provisions of Section 11272, General Code, apply to railroad .companies owning or operating a railroad within that state and service may be made thereon in accordance with the provisions of that section.</p>

<p>CONTEMPT IN FAILING TO PAY ALIMONY.</p> <p>Jurisdiction — Deprivation of a Court of a Part of Its Jurisdiction— Does Not Affect Its Inherent Power to Enforce a Valid Deoree Theretofore Rendered — Imprisonment for Failure to Pay Alimony Not Imprisonment for Delt.</p> <p>1. The legislative act, taking away from the court of insolvency of Hamilton county its jurisdiction in the matter of divorce and alimony, did not deprive that court of jurisdiction in a proceeding for contempt in failing to pay a judgment for alimony, pronounced prior to the passage of said act.</p> <p>2' Imprisonment for contempt in failing to pay a judgment for alimony in gross is not violative of any constitutional right of the person so imprisoned.</p> <p>3. An order of commitment for contempt imports verity and, in the absence of any showing to the contrary in the record, such an or- . der is supported by the presumption that the court heard evidence, and, found that the defendant was able to pay the amount adjudged against him, before the order for his commitment for failure to pay was entered.</p>

<p>UNCERTAINTY AS TO THE MEANING OF A WILL WRITTEN IN A FOREIGN LANGUAGE.</p> <p>Wills — Construction of, Not Attempted — Where the Testator’s Intention is so Involved in Obscurity that it Can Only be Guessed at by the Court.</p> <p>A court will not speculate as to tbe intention of a testator whose will was written in a foreign language and tbe scholars who were called as witnesses did not agree in their translations, but in such a case the provisions of the law for distribution of the property of a decedent will be applied.</p>

<p>OMISSION OF HOUSE NUMBER IN NOTICE OF SHERIFF’S SALE.</p> <p>Judicial Sales — Sheriff’s Sale Invalidated — By Omission to Give the Number of the House in Notice of Sale — Section 11678.</p> <p>Failure to give the house number in the notice of a judicial sale of improved property located within a municipality where house numbers have been assigned is an irregularity which invalidates the sale.</p>

<p>JURISDICTION IN THE MATTER. OF SUSPENDED SENTENCES.</p> <p>Habeas Corpus — For a Ptisoner Placed on Probation and Afterwards Re-incarcerated — Judge Without Power to Set Aside a Suspended Sentence After the Period for Which Sentence Was Pronounced.</p> <p>A judge has no authority to set aside a sentence which he has theretofore'suspended, if the period covered by the sentence as originally pronounced has expired.</p>

<p>DEVISE NOT RENDERED INEFFECTIVE BY IMPERFECT DEEDS COVERING SAME PROPERTY.</p> <p>Wills — Ambiguities Latent and Patent — Where Intention of Testator is Clear — Devise Not Defeated by Execution of Deeds Covering Same Lands, Imperfectly Executed and Not Delivered.</p> <p>A specific devise of lands to the widow of the testator for life, with the remainder over to designated beneficiary, is not defeated on the ground of ambiguity by reason of the execution by the testator of deeds covering the same lands, where the, said deeds were not executed in accordance with law and were not delivered to the grantees and there is no proof showing or tending to show that they were placed in escrow.</p>

<p>DAMAGES FOR. THE MALICIOUS SUING OUT OF AN ATTACHMENT.</p> <p>Reasonable Cause for the Suing Out of an Attachment — Remedies of a Defendant Whose Property is Wrongfully Attached — Measure of Damages for Wrongful Attachment — Charge of Court — Confusion in the Use of the Words “Testimony” and “Evidence.”</p> <p>1. The discovery among the belongings of J A B of canceled checks drawn by J B affords reasonable ground for the belief that the bank account upon which these checks were drawn belonged to J A B, out having been informed, after the bringing of a suit in attachment against JAB and the garnisheeing of this account, that J A B and J B were two different persons and that the said account did not. belong to J A B, it became the duty of the plaintiff at once to release said attachment, and failure so to do warranted the finding in the court below that the suit was being maliciously prosecuted.</p> <p>2. While it is error, in a charge to the jury, to use the words “testimony” and “evidence” interchangeably, or to use the words “fair preponderance of the evidence” instead of “preponderance of the evidence,” it does not afford ground for reversal where the prejudice, if any arose from such use, was against the .defendant rather than the plaintiff in error.</p> <p>S. The measure of damages for the bringing of a suit in attachment without probable cause and maliciously is such compensatory damages as will make the plaintiff whole for expenses incurred in securing a discharge of the attachment and loss of the use of the property, together with counsel fees and punative damages on account of the humiliation and injury sustained by the plaintiff by reason of the suit.</p>

<p>ACTION TO RECOVER COMMISSION FOR SALE OF REAL ESTATE.</p> <p>Beal Estate Agent — What He Must do to Earn a Commission — Purchaser Procured Must he Able, Beady and Willing to Fulfil His Part of the Contract.</p> <p>In an action for recovery of a commission for sale of real estate, the petition is demurrable where there is no allegation that the purchaser who was procured was able .to buy the property on the terms proposed; and where the evidence fails to cure this defect by showing that the proposed purchaser was able, ready and willing to mate the purchase, a motion to direct a verdict for the defendant should be granted.</p>

<p>VALIDITY OF A CODICIL PROVIDING FOR CARE OF TESTATOR AND HIS WIFE.</p> <p>Wills — Action to Contest — Competency of a Hypothetical Question— Photograph of Testator Admissible in Evidence, When — Charge of . Court.</p> <p>1. It is not prejudicial error to sustain an objection to a hypothetical question which is based on an assumed fact that is supported by some evidence, but is clearly dispróved by the manifest weight of the evidence.</p> <p>2. In the trial of an action to contest the validity of a will the opinion of a non-expert witness as to the mental capacity of the testator must be confined to a time when such testator is under the observation of the witness.</p> <p>3. A photograph of a testator, taken at or near the time his will was executed, may be a useful and competent item of evidence in an action to set the will aside, but it is not prejudicial error to sustain an objection to the introduction of such a photograph which was taken eight or nine years prior to the execution of the will or codicil which is under attack.</p>

<p>ISSUE DETERMINED BY FORMER. JUDGMENT.</p> <p>Bes Adjudibata — Plaintiff Bound by Former Judgment — Where Same issue Was Presented and He Had Full Knowledge of the Facts Upon Which the New Action is Based.</p> <p>In an action to obtain the cancellation of an oil and gas lease, where the answer sets, up a former action between the same parties in which the validity of the same lease was in issue, and alleges that the case was tried upon that issue and judgment entered sustaining the validity of the lease, and further alleges that at the time of bringing the former suit the plaintiff had full knowledge of all the facts set up in the present action as grounds for cancellation of the lease, and no reply was filed to the answer, the plaintiff is not entitled to the relief sought because the controversy is res judicata.</p>

<p>LIABILITY FOR. INJURY RECEIVED ON A DEFECTIVE APPROACH TO A BRIDGE.</p> <p>County Commissioners — Not Liable for Repairs to a. Bridge Approach Where the Cost Would Not Exceed Fifty Dollars — Failure of an Action .for Injuries Received on a Defective Bridge Approach.</p> <p>A claim for damages on account of injuries, alleged to have been due to negligence in keeping the approach to a bridge in proper repair, can not be enforced against county commissioners, in the absence of any showing that the cost of such repairs would have exceeded fifty dollars.</p>

<p>LESSOR. OF EQUIPMENT NOT LIABLE FOR INJURIES CAUSED BY DEFECTS.</p> <p>Railways — Owner of Cars under Lease — Not Liable for Injuries Resulting from. Defective Condition.</p> <p>A lessor of railway cars parting with the possession and control of the cars is not liable for damages for personal injuries resulting from the defective condition of one of the cars in the absence of an averment that such condition existed at the time of the lease.</p>

<p>AS TO THE VALIDITY OF THE TRANSFER. OF TERRITORY FROM A RURAL TO A VILLAGE SCHOOL DISTRICT.</p> <p>Schools — Transfer of Territory to a Village District — Changes in Boundaries — Adjustment of Funds — Filing of Resolution With County Auditor.</p> <p>1. Section 4736, G. C., as amended in 104 O. L., 138, authorizes a county board of education to transfer territory from a rural school district to a village district.</p> <p>2. The provisions of Section 4727, that centralization shall not be discontinued within three years, does not prevent such changes of boundaries as may be authorized by other statutes and will conserve the best interests of the schools.</p> <p>3. The statutory provision that an adjustment of the funds and indebtedness of the two districts involved in the transfer shall be •contemporaneous with such transfer, is not mandatory but directory only, as is also the provision that the transfer can not become effective until the resolution providing therefor has been filed with the county auditor.</p>

<p>COMMISSIONS FOR. SALE OF REAL ESTATE.</p> <p>Contract — Procured by Broker for Sale of Beal Estate — Burden on Broker Claiming a Commission — To Show Willingness and Ability on the Part of Proposed Purchaser — To Take the Property and Make the Payments as Agreed Upon.</p> <p>1. Recovery of a commission for sale ol real estate can not be based on the fact alone that the proposed purchaser signed the contract of purchase, but it must also be made to appear that he was able and willing to complete the purchase and make the payments stipulated in the contract.</p> <p>2. The claim for a commission is unenforcible in the instant case for the further reason that plaintiff concealed from the owner of the property the fact that the proposed purchaser would not be able to take the property until he had sold certain other property the title to which was so clouded as to render a sale extremely improbable.</p>

<p>RIGHT-OF-WAY NOTWITHSTANDING EASEMENT WAS NOT RESERVED.</p> <p>Easements — Conditions Existing at Time of Conveyance with Reference to Right-of-Way Control.</p> <p>Conditions existing at the time of the making of conveyances by a common grantor as to right-of-way, constructed with the knowledge and assistance of the grantee before his purchase of one of the lots, entitle grantees of other lots to a way out and to the grantor’s rights then obtaining in an existing roadway, notwithstanding no reservation of the easement was made in the conveyance of the servient lot and other rights-of-way over other lots may have since become available.</p>

<p>CONVEYANCES IN FRAUD OF CREDITORS.</p> <p>Plaintiff in an Action Brought Subsequent to Execution of Deed — Is a Subsequent Creditor Within Meaning of the Act Relating to Conveyances in Fraud of Creditors.</p> <p>An action to set aside a conveyance on the ground of fraud does not lie against a grantor who executed the deed, upon which the attack is made, prior to the bringing of suit by plaintiff, notwithstanding the said deed was not placed on record until after the plaintiff had reduced his claim to judgment.</p>

<p>WINDOW WASHER. FALLS AND IS KILLED.</p> <p>Negligence — Upon the Part of an Employer — In Insisting that the Decedent Employee Perform a Dangerous Task — Defendant Guilty of Negligence Per. 8e — Where Accident Was Due to Violation of a Municipal Ordinance.</p> <p>1. In an action for damages on account of wrongful death, the trial court is warranted in charging that if the direct and proximate cause of the injury was the violation of a valid municipal ordinance the defendant would be guilty of negligence per se.</p> <p>2. A reviewing court will not reverse a judgment finding the defendant liable for the death of the intestate, where there was evidence which tended to show, and which the jury evidently accepted as true, that the intestate, a window washer in an office building, protested against washing the windows while there was snow on the sills, but was told by the superintendent of the building that the windows must be washed.</p>

<p>FAILURE IN CHARGE TO JURY TO DISTINGUISH DEFENSES MADE.</p> <p>Woíií of Consideration and Failure of Consideration Distinguished — ■ Error in Failing to Separate Defenses in Charge to Jury — Res Adjudicata — Fraud.</p> <p>1. Where the defenses of want of consideration and failure of consideration and fraud are interposed, failure to instruct the jury fully as to each of these defenses and the burden of proof with reference to each constitutes prejudicial error.</p> <p>2. The judgment in an equity case, in which the issues joined were tried on their merits and the court found on said issues for the defendant and dismissed the petition, is a complete bar and proper defense to a second action involving the same issues.</p>

<p>TITLE QUIETED AGAINST PURCHASER AT TAX SALE.</p> <p>Tax Deed — Rendered Invalid by Indefinite Description of the Land Sold —Recovery by Holder of Such Deed for Taxes and Penalties Paid— Limited by the Six Years Statutes of Limitations.</p> <p>1. Title may be quieted against the holder of a tax deed embodying a description of the land sold which is so indefinite as to render void the- • proceedings of the forfeited land sale upon which the deed is based.</p> <p>2. The amount of the lien which may be asserted by the holder of a tax deed so declared invalid is limited to money advanced for taxes and penalties during the six years last preceding.</p>

<p>APPENDICITIS AS THE RESULTsOF A FALL.</p> <p>Charge of Court — Modicum of Evidence Supporting Allegations as to Nature of Injuries — Claim that Appendicitis Developed as One of the Results of a Rail.</p> <p>1. It is not error to refuse to charge the jury that there is no evidence, which they could consider supporting the claim of the plaintiff that the attack of appendicitis from which he suffered was due to his being thrown upon the street by the premature starting of the car from which he was alighting, where a modicum of evidence has been offered to support this claim of plaintiff.</p> <p>2. The injuries sustained by plaintiff in the instant case warranted the - jury in returning a verdict in his favor for $1,200, without regard to his claim that an attack of appendicitis was one of the results of the fall.</p>

<p>AS TO THE TAKING OF TESTIMONY AT THE EXPENSE OF THE STATE.</p> <p>Criminal Law — Application to Take Testimony in the Philippines— ' Overruled Because of the Heavy Expense Involved — Comments of Counsel During Trial Not: Properly a Part of the Record</p> <p>In the absence of a satisfactory showing as to the materiality of the testimony desired for use in a criminal case, it is not error to overrule an application for an order to take testimony in a distant country, where the expense to the state if the order were granted would amount to as much as two thousand dollars.</p>

<p>WRONGFUL DEATH OF PASSENGER. IN AN ELEVATOR..</p> <p>Negligence — Degree of Care Required of the Operator of an Elevator— Passenger Must he Given Time to Secure Sis Balance Before Machine is Started — Judgment of $7,000 for Death of a Young Man.</p> <p>1. The highest degree of care consistent with its practical use is required in the operation of a passenger elevator, and this requires that a passenger shall be given time to secure his balance after entering before the elevator is started.</p> <p>2. In view of the fact that the Legislature has removed the former limitation on the amount which may be recovered for wrongful death, an award of $7,000 can. not be regarded as excessive for the death of a vigorous man, twenty-six years of age, industrious, temperate and thrifty, who had contributed toward the support of his next of kin and who left surviving him a father and mother and ten brothers and sisters.</p>

<p>ASSAULT WITH INTENT TO COMMIT RAPE.</p> <p>Criminal Law — Evidence as to Reputation — Charge of Court with Reference to Assault with Intent to Commit Rape.</p> <p>1. On the trial of a defendant indicted on a charge of rape, witnesses who testify in his behalf that his general reputation for morality is good, may be asked on cross-examination if they have not heard reports or rumors of specific instances of lascivious conduct on his part with other women, although that line of cross-examination would not be proper if the witnesses had testified to his good character, only. State v. Dieherson, 77 O. S., 34.</p> <p>2. The substance of complaints made by the prosecutrix in an indictment for rape, is admissible in evidence if the complaints are made immediately or soon after the offense, but if delay ensue, it must be excused by facts or circumstances introduced in evidence.</p> <p>3. Where the charge of the court on the included offense of “assault with intent to commit rape,” erroneously denominates it “an attempt to commit rape,” but accurately defines the elements constituting the offense, the error is not prejudicial, and the conviction will not be reversed therefor.</p>

<p>AS TO WHETHER. THE SALE IN QUESTION WAS A CONDITIONAL SALE.</p> <p>Sales on the Installment Plan — Error in Taking Case from Jury— Where a Determination is Required as to Whether Title Passed.</p> <p>Where goods are purchased on the installment plan, the amount remaining due being evidenced by notes secured by chattel mortgage, and the goods are afterward retaken by the vendor, it is error in an action brought by the vendee, for recovery of the amount paid on the theory that the transaction was a conditional sale, to withdraw the case from the jury, where testimony has been offered tending to prove it was understood at the time the sale was made that title to the goods was to remain in the vendor.</p>

<p>PROCEEDINGS FOR REDEMPTION OF REAL ESTATE.</p> <p>Appeal — Right of, in an Action to Redeem Property Sold Under Foreclosure■ — Nature of Such an Action.</p> <p>Where the primary relief sought is the setting aside of a decree and the cancellation of conveyances, and as an incident thereof, the recovery of real estate, the action is one which is appealable.</p>

<p>CHILD RUNS INTO A CAR. AND IS INJURED.</p> <p>Negligence — Degree of Care Required of a Motorman Toward Children in the Street — Addressing of a Remarle to a Juror Not Misconduct, When.</p> <p>1. A reply by a young attorney, not connected with the case on trial, to a casual question by a juror as the jury were retiring for deliberation, does not constitute misconduct warranting a reversal of the judgment.</p> <p>2. It is not error to refuse to charge a jury, in an action against a traction company for injury to a child, that if the motorman had reason to believe the child might come upon the track or within the danger zone of the car, then he was bound to exercise more than the ordinary degree of care incumbent upon him.</p> <p>3. A traction company is not liable for injury to a child eight years of age, who became frightened and in attempting to cross the street ran into a rapidly moving car, colliding with the car just behind the forward vestibule.</p>

<p>DETERMINATION AS TO DOWER..</p> <p>Action to Fix Dower Appealable — Mortgages Existing Prior to Coverture Payable Before Dower is Determined.</p> <p>1. An action to determine whether plaintiff is entitled to dower in the entire proceeds from the sale, or only in the surplus after satisfying a mortgage lien, is appealable.</p> <p>2. Where a mortgage was placed on the premises prior to the marriage of the plaintiff to the mortgagor, the mortgagor at no time during coverture had more than an equity of redemption in the property, and the plaintiff is therefore dowable only out of the surplus after satisfaction of the mortgage.</p>

<p>LINEMAN KILLED BY FALL FROM A POLE.</p> <p>Negligence — Guy Wire of Telephone Pole Bréales, Causing Fall of Lineman — Custom or Habit of Linemen to Depend on Guy Wires for Support Competent — Where Known to the Company, in Determining Whether Ordinary Care Was Used.</p> <p>1. Where an employee making repairs at the top of a telephone pole and supporting himself in part by the aid of a guy wire, which was claimed to be defective, fell, by the breaking of the guy wire, and was killed, evidence of a custom, usage, habit or general practice of employees to use the guy wire as a support, known to the employer,' or which by the exercise of ordinary care should have been known by it, is competent.</p> <p>2. While neither custom nor usage can justify or excuse a negligent act, they may be competent evidence to aid a court in determining whether a given act was negligent, the ultimate question being whether under all the circumstances ordinary care was exercised.</p>

<p>LIABILITY OF A MUNICIPALITY FOR AN INJURY DUE TO ICE ON THE SIDEWALK.</p> <p>Municipal Corporations — Ordinance Providing Penalties for Failure on the Part of Abutting Owner to Remove Snow and Other Obstructions from Sidewalk — Can Not be Made the Basis of an Action Against an Abutting Owner — For Injury from Falling on a Sidewalk Covered with Ice.</p> <p>Allegations that the plaintiff fell and was injured on a sidewalk which was covered with ice and had a “steep descent” toward the next •street, do not state a cause of action against the owner of the abutting property, notwithstanding the existence of an .ordinance •providing that “whenever the sidewalk, or any part thereof, adjoining any building or lot of land or any street, shall be encumbered with ice, it shall be the duty of the owner or owners, occupant or occupants, or any person having the care of such building of lot, to cause such sidewalk to be made safe and convenient by removing the ice therefrom, or by covering the same with sand or some other suitable substance, and in case such owner or owners or other person shall neglect so to do, for the space of two hours during the day time [he or they] shall be liable to the penalty named in the following section.”</p>

<p>AS TO WHETHER AN ATTEMPTED CHANGE OF BENEFICIARY WAS EFFECTUAL.</p> <p>Interpleader — Life Insurance Contracts — Change of Beneficiary— Waiver.</p> <p>1. Section 11265, General Code, is auxiliary to and not destructive of, the equitable remedy of interpleader. Hence, the custodian of a fund who claims -no interest therein, not knowing to which of two or more persons, making claim thereto, under different titles he should pay the same, may file a petition in the nature of a bill of interpleader making such persons' parties thereto, pay the money into court and have adjudicated the rights of said claimants thereto.</p> <p>2. Where, in a policy of insurance the right to change the beneficiary is reserved to the insured, the beneficiary named therein has no vested interest in such policy until the death of the insured and such insured may, during his lifetime, designate another beneficiary at will. Hence, where such insured has, in the form and manner prescribed by such policy, executed and forwarded, together with the policy, to the company’s home office, the instrument required to effect such change, but dies before such instrument reaches said company, and thereafter the company files a bill of interpleader and, making the rival claimants parties thereto, pays the money into court, such change of beneficiary is effectual, even though the company did not endorse the change of beneficiary upon the policy as provided therein, such provision being for the benefit of the company, is thereby waived.</p>

<p>ISSUE AS TO WHETHER. INJURED BOY WAS A TRESPASSER.</p> <p>Fire Escape Falls and Injures Boy — Defense by Occupant of the Property that the Boy Was Meddling — Accuracy of Statement Required in Instructing a Jury Where the Issues Are Close and the Testimony Nearly Equally Balanced.</p> <p>1. While in some instances irrelevant matter may be incorporated into a charge to the jury without prejudice, such is not the case where the evidence is close and the issues such that the parties are entitled to have the law applicable thereto stated without ambiguity or confusion with extraneous matter.</p> <p>2. A charge which limits the jury to consideration of the evidence offered by one side only as to a certain issue, is erroneous. and clearly prejudicial, as is also the statement that “if you find from a preponderance of the defendant’s evidence” that the plaintiff did so and so, “then he can not recover.”</p>

<p>ERROR. IN ALLOWING A FEE FOR AN ACTION NOT YET BROUGHT.</p> <p>Corporations — Action for Unpaid Subscriptions for Stoolc — Allowance to Counsel for Services in a Future Action.</p> <p>A court is without power to include in a judgment finding the liability of stockholders an estimated fee for attorneys in a future action to enforce stockholders' liability or collect unpaid subscriptions to the capital stock.</p>

<p>FAILURE TO ESTABLISH DEDICATION OF A SUPPOSED ROADWAY.</p> <p>Dedication — Of a Roadway by Statute, at Common Law and by Prescription — Dedication Not Shown, When — Permissive and Occasional Use of an Enclosed Way Tests no Rights in the Public — Vacation by Council of a Way Marked by Street Signs But Not Found in the Public Records.</p> <p>1. Trustees of a township have no jurisdiction to lay out and establish a township road through land lying in another township.</p> <p>2. The endorsement by a land pwner of the report of viewers appointed to locate a proposed road, said endorsement reading, “I agree to receive the above damages and open the road when the money is paid,” does not show a statutory dedication in the absence of any evidence that the money was ever paid, or that the report of the viewers was accepted or that the other necessary steps required by statute were taken or that the public ever expended any money on said road, or any reference to such way on the public plats or in deeds to the abutting land subsequently executed.</p> <p>3. Vacation by council of a street, planned to follow the line of said supposed road after annexation of the territory to the adjacent municipality, does not estop the land owner from denying the existence of such a way; nor does the fact that street signs had been placed on the said proposed street, or that the name of the street appeared in a street directory made up by the police department for the use of its officers and on a certain tax plat, afford proof of any right of the public therein.</p> <p>4. ' Occasional use of a private way, fenced in on both sides and to which admission was had through gates and evidently by permission of the land owner, does not ripen into a prescriptive right or vest any . title in the public for the purpose of a public way.</p>

<p>EQUITABLE DIVISION OF PROPERTY BETWEEN HUSBAND AND WIFE.</p> <p>Husband and Wife — Where it is Apparent Their Property Was Acquired by Joint Effort — And Separation Occurs it Will be Equitably Divided — Alimony.</p> <p>Where separation is being sought after forty years of married life, and it appears that the wife has beeil a faithful and exemplary helpmate, and has reared seven children who are a credit to her, and whereby the industry and frugality of herself and the children as well as the husband, property has been accumulated which is worth twenty thousand dollars, a reviewing court will order that the property be equitably divided between the husband and wife.</p>

<p>CONTRACT OF EXEMPTION FROM LIABILITY.</p> <p>Employee of the Pullman Gar Company — Injured by Being Thrown from a Car — Benefit of a Contract of Exemption from Liability . for Inju/ries Held by the Pullman Company — -Can Not be Claimed by the Railway Company.</p> <p>A contract between the Pullman Company and an employee, relieving the company from liability in the event of injury to the employee during the course of such employment, can not be pleaded by a railway company in an action for injuries received by such employee while said railway company was handling one of the Pullman cars.</p>

<p>ADMISSIBILITY IN A WILL CASE OF PHOTOGRAPH OF TESTATOR..-</p> <p>Evidence — Action to Contest Will — Photograph of Testator Admissible, When — Exclusion of Testimony Under an Objection Going to Its Weight Only Not Prejudicial, When — Irregularity in Bill of Exceptions.</p> <p>1. A photograph of the testator is competent in a will case, where evidence has been introduced as to his slovenly appearance which is denied by the defense, and the authenticity of the photograph has been established and also the fact that it resembled the testator as he appeared at about the time of the execution of the will.</p> <p>2. The ruling out of' testimony, under an objection which went to its weight rather than its competency, can not be regarded as prejudicial error.</p>

<p>COMPENSATION TO ENGINEERS OF RAPID TRANSIT COMMISSIONS.</p> <p>Municipal Gorporations — Provisions of the Statutes With Reference to Engineers of Rapid Transit Commissions — Where the Work is Performed by the City Engineer it Must be Without Additional Compensation.</p> <p>It is witbin the option of a municipal rapid transit commission created under authority of Sections 4000-16, et seq. (105-6 O. L., p. 286), to place an outside engineer in charge of the work and fix his compensation, or the work may be placed in charge of the city engineer; but where this is done the commission is without authority to allow him additional compensation on account of the services so required of him.</p>

<p>DEMANDPOR. JURY TRIAL IN THE CINCINNATI MUNICIPAL COURT.</p> <p>Buies of Court — Buie Not in Harmony With Statutory Provision — Construed as Directory Only — Demand for Trial by Jury in the Municipal Court of Cincinnati.</p> <p>A rule of the municipal court of Cincinnati, fixing a time for demanding trial by jury other than that provided by the act creating the court, is repugnant to said act, and where demand is made within the time fixed by the statute its refusal is error notwithstanding the rule of court.</p>

<p>LIABILITY OF CARRIER FOR SHIPMENT DAMAGED BY A FLOOD.</p> <p>Act of'God — Available as a Defense to a Carrier — In an Action for Goods Lost or Damaged in Transit — Notwithstanding the Situation Was Brought About Through Negligence of the Carrier — Proximate Cause.</p> <p>Where goods in transit are damaged by a flood, the carrier is' not deprived of the defense of vis major by reason of the fact that, but for its own negligence in permitting the shipment to be delayed, it would have been delivered to the consignee before the occurrence of the' flood. Railway v. Myers £ Patty Co., 25 C.C. (N.S.),204, not followed.</p>

<p>AFFIDAVIT IN ATTACHMENT EXECUTED BEFORE PLAINTIFF’S ATTORNEY.</p> <p>Attachment and Garnishment — Affidavit Made Before Plaintiff’s Attorney as Notary — Not Given Life by Substituting the Name of Another Attorney.</p> <p>The rule that an affidavit in attachment can not be made before a notary public who is the attorney - for one of the parties -to the action has reference to the status of the parties at the time the affidavit is made, and where the affidavit is made before plaintiff’s attorney the substitution thereafter of the name of another attorney does not give life to the action as against a motion to discharge the attachment.</p>

<p>AS TO LIABILITY FOR. THE BITE OF A DOG.</p> <p>Animals — Damages for the Bite of a Dog< — Necessary Allegations to Establish Liability Under the Present Law.</p> <p>1; A verdict of $500 as damages for the bite of a dog will not be disturbed, where it is shown that as a consequence the plaintiff was confined to her home for six weeks and was in a highly nervous condition at the time of trial.</p> <p>2. The common law rule that "every dog is entitled to one bite” has been supplanted in Ohio by Section 5838, and under this section it is sufficient, in an action for damages on account of the bite, to show that the defendant was the owner or harborer of the dog without regard to knowledge that he was vicious or fierce.</p>

<p>REMITTING PART OF A VERDICT AN INVASION OF THE RIGHT OF TRIAL BY JURY.</p> <p>Employment of Children Under Statutory Age — Burden on Employer to Shoio Deception in Matter of Age — Verdict Induced by Passion or Prejudice — Should be Set Aside — Not Reduced in Amount— Reasonableness of Damages Awarded to Injured Boy — Tested by Probable'Future Earning Power.</p> <p>1. Whether or not the employment of children of non-age has been innocent or with knowledge is a question for the jury, with the burden on the employer of showing affirmatively that he has been misled and deceived in the matter of age.</p> <p>2. Where an excessive verdict has been returned through passion or prejudice, it is the right of the defendant to have it set aside, and the reduction of such a verdict, except where done by consent, to an amount determined by the independent judgment of the court, rather than that of a jury, is an invasion of the right of trial by jury.</p> <p>3. A verdict of $25,900 for the loss of his right hand by a factory boy is so large as to justify the conclusion it was reached through passion or prejudice, and the action of the trial court in reducing the amount $10,000, instead of granting a new trial, constitutes error which requires a reversal of the judgment; and this result may be reached without weighing the evidence in detail, but from the verdict itself in its relation to the evidence as a totality, under the circumstances of the whole case.</p>

<p>APPLICATION OF THE RULE AS TO COMPARATIVE NEGLIGENCE.</p> <p>Master and Servant — Model of Machine in Which Employee Was Injured May he Received in Evidence — Charge of Court as to Comparative Negligence and Apportionment of Damages — Pleading.</p> <p>1. In an action by an employee on account of injuries received, it is competent to offer in evidence for illustrative purposes a model substantially representing the main parts of the machine in which he was injured.</p> <p>2. The law is correctly given in an instruction to the jury as to comparative negligence which states that if they find from a preponderance of the evidence that the negligence of the plaintiff was slight and by a like preponderance of the evidence that the negligence of the defendant was gross and all the disputed matters are found in favor of the plaintiff, the damages suffered by plaintiff, if any, will then be compared and apportioned between the plaint-, iff and defendant in the ratio or their respective contributions of negligence to the combined negligence, and diminish plaintiff’s recovery, if any, in accordance with the ratio thus fixed and determined.</p> <p>3. An instruction to the jury which declares as a matter of law that plaintiff assumed the risk of stumbling over or otherwise coming in contact with a necessary part of the machine which he was operating renders nugatory the present statutory provision as to the negligence of the employer.</p>

<p>FAILURE TO PROVIDE APPROACH TO COUNTY * BRIDGE WITH GUARD-RAILS.</p> <p>Bridges — Construction of Section 7563 — Liability of County for Failure to Provide Guard-Rails for Approaches — 'Where Joint Negligence of Third Party Contributed to Accident.</p> <p>A county is liable for all damages which are the result of a failure to erect guard-rails on the approach to a county bridge, as required by Sections 7563 and 7564 of the General Code, though the injury was caused by the joint negligence of a third party and the failure of the board of eaunty commissioners to comply with the provisions of the sections of the General Code just noted.</p>

<p>SPLITTING CLAIM UP INTO SEVERAL CAUSES OF ACTION DEPRECATED.</p> <p>Pleading — Damages for Breach of Contract — Successive Breaches do Not Require Separate Causes of Action — Arrest of Cause from Jury.</p> <p>1. Several breaches of a contract do not constitute separate causes of action, and in a suit for damages growing out of the breach it is not good practice to split up the claim into a number ■ of causes.</p> <p>2. The fact that a trial court in arresting a cause from the jury based its action on wrong grounds is immaterial where other grounds existed which warranted such action.</p>

<p>PROSECUTIONS IN MINOR. TRIBUNALS.</p> <p>Mandamus Against Cleric of Court — To Compel Drawing of Jury Venire for Justice of the Peace — Section 1SW Construed — Directs Method of Procedure Only.</p> <p>1. Section 13432, General Code, does not confer jurisdiction upon justices of the peace, police' judges or mayors, but directs the method of procedure for obtaining a jury in eases in which such magistrates have final jurisdiction.</p> <p>2. Mandamus will not lie against the clerk of the court of common pleas to compel him to draw from the jury wheel names of persons to serve as jurors in a proescution before a justice of the peace for the violation of Section 12475, General Code.</p>

<p>VALIDITY OF NOTE GIVEN IN PAYMENT OF INSURANCE PREMIUM.</p> <p>Life Insurance — Execution of Note, Without Interest, in Payment .of First Premium — Not Within the Prohibition of the Statute, When ■ — Suit Lies on such a Note.</p> <p>Where the evidence is to the effect that a contract was entered into for a policy of life insurance and the amount of the premium • agreed upon, and thereafter a note was accepted from the insured for the first year’s premium, due in sixty days without interest, the accommodation thus extended as to the time for paying the first premium can not he regarded as an inducement for taking out the policy, or as within the inhibition of Section 9404, General Code; and where the insured made no complaint until after the note had become due and the agents receiving it had paid the premium to the insurance company, the defense that the note was void because in contravention with said section does not lie.</p>

<p>JURISDICTION OF MUNICIPAL COURT.</p> <p>Executors — Action for Maintenance of Decedent — 'Within Jurisdiction of Municipal Court of Cincinnati.</p> <p>The Municipal Court "of Cincinnati has jurisdiction of an action to enforce a claim against an executor for maintenance of the decedent.</p>

<p>QUESTIONS AS TO A RELEASE IN AN ACTION FOR DAMAGES FOR. INJURIES.</p> <p>Release — Proper Procediere Where Set iup by the Defendant — Determination Necessary as to Whether the Paper is Voidable — Then as to Whether it is Void — Not an Abuse of Discretion to Refuse to Permit Amendment of Petition at Glose of All'the Evidence, When — • Negligence in Operation of a Machine.</p> <p>1. The defendant in an action for injuries having set up a release, the question first to be determined upon trial of the case is as to ‘ the voidability of the release, the evidence failing to. warrant the court in setting the release aside, the question then arises whether or not it was void ab initio.</p> <p>2. Where the evidence has failed to establish the voidability of a release, but the plaintiff in his reply denies its execution, it becomes the duty of the court to submit to the jury all the evidence, both as to execution of the release and the negligence of the defendant in causing plaintiff’s injuries.</p> <p>3. An admission by the plaintiff that he signed the release, together with evidence that he received a substantial consideration therefor, bars recovery in the absence of any showing of lack of mental capacity or of fraud in securing his signáture thereto.</p> <p>4. " It further appearing from the evidence that the machine plaintiff was operating at the time he received his injury was not defective in the particular alleged, but, on the contrary, that it was in good working order, and that his injury was due to his attempting to operate it in a manner different from that directed by the foreman, it was not error to direct the jury to return a verdict for the defendant on the ground, among others, that he had failed to establish any defect in the machine of the character set out in his petition.</p> <p>5. Nor is it an abuse of judicial discretion to refuse to permit a plaintiff to amend his petition, at the conclusion of all the evidence,-by adding the allegation that the machine was defective in a manner to him unknown.</p>

<p>VALIDITY OF PROVISION FOR. ADDITIONAL SALARY TO COMMON PLEAS JUDGES.</p> <p>Constitutional Law — Provision for Additional Salary to Be Paid Common Pleas Judges Out of County Treasuries — Not 'Violative of Any Constitutional Provision — Not Nature of the Office — But Character of Services Performed and the Resultant Benefit — Determines 'Whether Compensation May Be Paid By Levy of Taxes on the County.</p> <p>Section 2252 of the General Code, providing for additional salary to be paid to judges of tbe court of common pleas, is not in conflict with any provision of tbe Constitution of Ohio and is therefore valid.</p>

<p>UNLIMITED AUTHORITY IN THE LEGISLATURE WITH REFERENCE TO MECHANICS’ LIENS.</p> <p>Mechanic's Liens — Construction of the Act of 191S — Lien Attaches, When — Priority—Mortgage Postponed to Mechanic’s Lien, When.</p> <p>1. Section 33 of Article II of the Constitution gives to the Legislature unlimited power to legislate with reference to mechanic’s liens, and the only duty of the courts is to construe enactments pertaining to such liens.</p> <p>2. Under the act of April, 1913, a mechanic’s lien attaches from the date of the first item secured thereby, but where there are several liens payable to different persons on the same job there is no priority between them.</p> <p>3. The conflict between Section 8542, General Code, and Sub-section 2 of Section 12 of the act of April 1913, must be resolved by giving effect to the later act, which gives priority to mechanic’s liens over a mortgage recorded after the commencement of the improvement to which the mortgage and liens attach.</p>

<p>SUFFICIENCY OF AVERMENTS WITH REFERENCE TO A COUNTER-CLAIM.</p> <p>Pleading — Action on an Account — Defendant May Set up Gross-Claim —Alleging That Both Sis Claim and That of the Plaintiff Are Based on the Same Agreement.</p> <p>1. Demurrer does not lie to an answer and cross-petition which alleges that the account upon which the claim of the defendant is based arises out of an express contract which is really the subject of plaintiff’s action, with which contract the claims of both the plaintiff and the defendant are connected.</p> <p>2. Failure to allege that the contract which forms the basis of the action was for a definite period is immaterial, where it clearly appears that it was to remain in force until a certain specified date and that the grievances complained of occurred prior to that date.</p>

<p>DOUBLE RECOVERY POSSIBLE FOR. INJURIES SUFFERED FROM MOB VIOLENCE.</p> <p>Damages Recovered From County — For Injuries Suffered by Reason of Mob Violence — Not a Bar to Recovery From the Tort Feasor— Whose Negligence Was the Proahmate Cause of the Injury.</p> <p>An action to recover damages for negligently causing the death of a person, against the party guilty of the negligent acts, is not extinguished by a former recovery and payment of a judgment, against the county, under the provisions of Sections 6278 to 6283, inclusive of the General Code, for the death of the same person from injuries received from lynching by a mob, unless the county is with the party charged jointly guilty of the same negligent acts.</p>

<p>DESIGNATION OF A BENEFICIARY.</p> <p>Mutual Benefit Societies — Disposition of Proceeds of a Policy Made Payable to Wife of the Insured — Contest Between Second Wife and Children of the Mrst Wife.</p> <p>Where insurance is taken in a benevolent organization, payable to the wife of the insured or his lawful heirs, and subsequent to the death of the said wife and the remarriage of the insured the said policy was taken up and two new policies issued in its stead without any change with reference to the beneficiary, the proceeds of said policies become, at the death of the insured, the property of the second wife, and no part thereof is payable to the children of the first wife.</p>

<p>PROSECUTION OF A CORPORATION.</p> <p>Work and Labor — Prosecution of a Corporation — For Employing Females Over Eighteen Tears of Age More Than Ten Hours a Day in a Candy Factory — Jurisdiction of Magistrate Obtained Through Submission of President to Arrest — Section 1008.</p> <p>1. The provision of Section 13496 for the arrest of an accused person is not applicable to a corporation, but where in a prosecution of a corporation the president is arrested and taken before a justice of the peace, failure to take advantage of the irregularity by objecting to the jurisdiction of the court amounts to submission to its jurisdiction and a general appearance and prevents further question as to jurisdiction over the defendant corporation on the ground of improper service.</p> <p>2. The exception found in the statute prohibiting the employment of' females over eighteen years of age more than ten hours in one day, made applicable to “canneries or establishments engaged in preparing for use perishable goods,” does not apply to candy factories.</p>

<p>PREFERENCE IN THE MATTER. OF RENTAL ACCRUING PRIOR TO RECEIVERSHIP.</p> <p>Receivers — Disastrous Result of a Continuance of the Business— Rental Ordered Paid Before the Outcome Was Forseen — Treated as a Preferred Claim.</p> <p>The fact that the conduct of a business by a receiver resulted so unfortunately that the proceeds finally derived from a sale of the business and property were not sufficient to meet the‘'obligations incurred in the operation of the business by the receiver, can not be regarded as ground for the setting aside of a positive order by the court for payment of a part of the rental which had accrued prior to the receivership, where it appears that at the time of the making of the order and afterward there were funds in the hands of the receiver which could have been used in making this payment; and the receiver’s certificate, issued in lieu of such payment, must be treated as a preferred claim.</p>

<p>ACTION- FOR. DIRECTION OF COURT AS TO DISTRIBUTION OF ESTATE OF DECEDENT.</p> <p>Distribution — Property Bequeathed to Husband and Wife Jointly— Wife Dies Without Issue Before Testator — Husband Dies Before Distribution — Devise to Wife Treated as Having Lapsed — Presumption as to Husband Having Elected to Talce — Provision for Disappointed Donee.</p> <p>The will of M devised certain real estate to his sister and her husband jointly, burdened with a bequest of $10,000 to the American Bible Society. The sister died without issue prior to the death of the testator. The husband survived the testator, but died before a sale of the land had been effected or he had made an election under the will. Held:</p> <p>1. The bequest to the sister of an undivided one-half of said property lapsed, and said interest thereby became intestate property.</p> <p>2. The other undivided one-half passed under the will to the husband of said sister, subject to his right of election to accept benefits and assume the obligations thereby conferred, with the privilege of postponing his election until he could determine whether acceptance of the bequest would prove a benefit or a detriment; and inasmuch as there will be something over after payment of the legacy to the Bible Society together with costs, he will be presumed to have elected to take.</p> <p>3. If the devise to the sister did not lapse, it became subject to the equitable rule of election, and in either event should be applied to payment of the disappointed donee, the American Bible Society, whose legacy was general and not special, and as intestate property this lapsed bequest should be exhausted in payment of costs and the Bible'Society legacy before resort is had to the remainder of the estate.</p> <p>4. The residue of the legacy to the Bible Society with accrued interest should be paid out pf the other half of the estate, the balance over going to the heirs of the deceased devisee.</p>

<p>PASSENGER. INJURED WHILE DOJINC AN UNNECESSARY THING.</p> <p>Negligence — Passenger on Summer. Car — Unnecessarily Steps on Wheel-guard and is Injured — Appliance May he Continued in Use Without imputation of Negligence, When.</p> <p>1. The case of a woman who turned her ankle, and in falling was otherwise injured, hy unnecessarily stepping on the wheel-guard of a summer car, does not present a case of negligence on the part of the traction company -or of lack of contributory negligence on her own part.</p> <p>2. An appliance not obviously dangerous, which has been in daily use and has uniformly proved safe, may he continued in use without an imputation of negligence.</p>

<p>FAILURE OF MACHINERY TO MEET REQUIREMENTS.</p> <p>Conditional Sales — Tender Bach of Property Sold — Not Necessary to Relieve Purchaser from. Further Payments, When — Failure of Thing Sold to Meet Test — Dissatisfaction May he Shown Otherwise Than hy Tender Back.</p> <p>1. Under a conditional sale of machinery which has failed to meet the requirements of the purchaser, the fact that the title has remained in the vendor relieves the purchaser from the necessity of tendering the property back in order to be released from making further payments.</p> <p>2. Nor will failure to offer to return the machine be construed as a waiver of the right to claim it has not met the required test, where the evidence with reference to the test and the dissatisfaction of the purchaser therewith was such as to satisfy the jury that the stipulated requirements had not been met.</p>

<p>LIABILITY FOR. FALSE REPRESENTATIONS AS TO VALUE.</p> <p>Warranty — Liability for Representations Which Proved to be False— • Case of a Vendor Seeking to Retain Benefit from the Sale — Distinguished From that of an Agent Acting in Good Faith. '</p> <p>Liability on the part of an agent for damages on account of false representations as to the value of a'thing sold does not arise in the absence of a showing of bad faith, or that the belief of the defendant as to the truth of the representations was not justified by the facts.</p>

<p>INSTRUCTIONS TO JURY IN A WILL CONTEST.</p> <p>Evidence — Preponderance of, Not Sufficient to Set Aside a Will — Pre- ■ ' sumption of Validity Arising From Probate Must Also be Overcome — Limitation of Testimony of Experts as to Mental Condition of Testator.</p> <p>1. In an action to contest the validity of a will it is necessary for the . trial judge to charge the jury, by some appropriate language, that the evidence offered against the validity of the will must be sufficient to preponderate over the evidence offered in its support, supplemented by the presumption raised by the statute by virtue of the probate of the will, before the jury will be justified in returning a verdict against the validity of the will.</p> <p>2. In the examination of a non-expert witness as to the mental condition of the testator, the questions should be restricted to the present opinion of the witness as to the testator’s mental condition at the time the witness had him under observation.</p>

<p>DEFINITION OF NEXT OF KIN.</p> <p>Distribution — Determination as to Next of Kin of One Who Died Without Issue — Section 8574.</p> <p>The next of kin within the sixth clause of Section 8574, General Code, of one who died leaving no issue, and whose father and mother are both dead and left no issue surviving them, are the descendants of her grandparents, or her great grandparents, or her great great grandparents, as far back as it may be necessary to go.</p>

<p>PRESUMPTION THAT EVIDENCE JUSTIFIED THE INSTRUCTION GIVEN.</p> <p>Charge of Court — Instruction as to Contributory Negligence Will be Presumed to Have Been Justified — Where Bill of Exceptions Contains Only Part of the Evidence.</p> <p>Where the bill of exceptions contains only a part of the evidence, and it is complained that the court erred in mating any reference in its charge to the jury to the subject of contributory negligence as to which the pleadings tendered no issue, a reviewing court will presume that the evidence justified an instruction on that subject.</p>

<p>MOTION TO DIRECT A VERDICT NOT A SUBMISSION OF THE CASE.</p> <p> Motions by Both Defendant and Plaintiff at Close of Plaintiff’s Evidence —Not a Waiver by Defendant of the Right to Introduce Evidence and Submit Cause to the Jury on the Facts-. </p> <p>1. A motion made by the defendant, at the close of the evidence offered hy the plaintiff, to direct a verdict in favor of the defendant is not a submission of the defendant’s case and can not be made so by the plaintiff’s joining in such motion. Such a motion by the defendant tests tjie sufficiency of the plaintiff’s evidence, and is in nowise a submission of defendant’s case.</p> <p>2. A motion by defendant to direct a verdict in his favor made at the close of the evidence of plaintiff is equivalent to a demurrer to the plaintiff’s evidence and under the code practice if overruled, the defendant has a right to introduce his, testimony and have the cause submitted to the jury on the facts; and the nature of such a motion by defendant is not changed by plaintiff joining in such motion.</p> <p>3. Where it appears that at the close of the testimony offered by the plaintiff, a motion was made by the defendant to direct a verdict in its favor, and a motion was also made by the plaintiff to direct a verdict in his favor and the motion of the defend- ' ant was overruled, the defendant then had the right to go forward and offer his evidence and have the whole cause submitted to the jury on the facts; and when the motion of plaintiff was sustained and a verdict for plaintiff was directed by the court, such action on the part of the court deprived the defendant of its constitutional right to a trial by jury.</p> <p>4. The right of trial by jury should ever be held inviolate, and if a party who is entitled to such trial waives such right, the record must disclose such waiver in unequivocal terms.</p>

<p>AWARD FOR. SUPPORT OF ILLEGITIMATE CHILD.</p> <p>Bastardy — Preferable Form of Award for Support of Child — Reputed Father May Consent to Pay Weekly — Section 12123.</p> <p>Under the provisions of Section 12123, General Code, the reputed father of a bastard child should be adjudged to pay a lump sum, which may be made payable in installments, but where by silence and otherwise he consents to an order for payment of a fixed amount weekly, with the privilege to the parties to apply at any time for a modification of the order, he will not be heard to complain by a reviewing court.</p>

<p>DEMURRAGE ON A CAR. OF COAL REFUSED BY THE CONSIGNEE.</p> <p>Railways — Demurrage Charges Must be for a Reasonable Period — Consignee Refused to Accept Shipment and Car Was Not Unloaded until Contents Were Sold.</p> <p>Where a consignee refuses to accept a car load of freight, the railway company must make disposition thereof within a reasonable time, and a demurrage charge on the car so detained can be made only for a reasonable time.</p>

<p>FIRM INDEBTEDNESS NOT COVERED BY BOND OF MEMBER. OF FIRM EXECUTED AS AN INDIVIDUAL.</p> <p>Sureties — Bond Executed by a Member of a Firm Individually — Does Not Cover Firm Indebtedness, When.</p> <p>A surety can not be field for a firm debt, wfiere fie testifies tfiat at tfie time fie signed the bond fie did not know the man for whom fie was signing was a member of tfie partnership, and fiis testimony is not denied.</p>

<p>RIGHT OF REVIEW IN NATURALIZATION PROCEEDINGS.</p> <p>Naturalization — Jurisdiction of State Courts — Procedure and, Review —Courts of Appeals — Error Proceedings.</p> <p>1. The Congress of the United States having by apt legislation conferred upon certain state courts the power to admit aliens to citizenship and to administer the naturalization laws of the country, sharing with such 'courts the jurisdiction of the federal courts over that subject, .the power may be exercised according to the laws of pr.ocedure governing the state courts, as an incident to the power conferred, including any right of review to which an aggrieved party may be entitled by state law; and this, although such right of review is withheld when naturalization laws are administered in the federal courts.</p> <p>2. Error will lie in the courts.of appeals of Ohio from a judgment of the court of common pleas refusing to admit an alien to citizenship.</p>

<p>DEVISE OF PROPERTY JOINTLY BY HUSBAND AND WIFE.</p> <p>'Wills — Joint Testament by Husband.and Wife — Not a Compact — But a Legal Disposition of Property Held in Common, When.</p> <p>Tenants in common of real estate may dispose df the same by uniting in a single will, not in the nature of a compact, and may by the .same instrument dispose of their personal property, there being no provision for a legacy that would have to be paid from a fund to be derived from the property of both without designating the proportion in which such legacy should be paid from the property of each testator, and when the intention of the testators can be carried into effect without practical difficulty and without confusion of the properties of each testator.</p>

<p>ACTION BY A RELATIVE FOR SERVICES RENDERED TO A DECEDENT.</p> <p>Contracts — Payments Made by a Decedent — To a Relative for Care and Nursing — Not Necessarily Payments in Full — Estoppel Does Not Operate Against a Further Demand — Rule in Hinkle v. Sage Not Applicable to Widow of a Nephew Not a Member of Decedent’s Household.</p> <p>1. In an action against the estate of a decedent for services rendered, the compulsory silence of the plaintiff touching the defense that payments made to plaintiff by the decedent were payments in full, creates no inference that plaintiff agreed to accept the payments made as payments in full, or that no agreement was entered into between them as to further sums being due in view of the greatly increased amount of work which had been thrown upon her, and in the absence of any word or circumstance to the contrary, estoppel does not operate against a further demand in settlement.</p> <p>2. The rule laid down in Hinkle v. Sage, requiring that such a- claim be supported by an express contract, has no application where the plaintiff is the widow of a nephew of the decedent and did not belong to the same household.</p>

<p>RIGHTS OF SURETIES ON A BOND SECURING PAYMENT OF A NOTE.</p> <p>Joinder of Action on a Note With Action on a Bond Securing Payment of- the Note — Error in Rejecting Evidence of- Violation of the Terms of the Bond.</p> <p>1. The rights of sureties on a bond, executed to secure payment of a promissory note, are not prejudiced by uniting an action on the bond with-the action for recovery on the note.</p> <p>2. In view of the express stipulation of the bond that the proceeds of the said loan were to be used by the defendant in his business, one-half of the profits derived therefrom to be retained by the defendant as his compensation, and the denial of the answer that this agreement was carried out, it was error to refuse to permit the introduction of testimony as to the alleged violation of the terms of the bond.</p>

<p>LEGALITY OF THE ESTABLISHMENT OF A COUNTY ROAD.</p> <p>Jurisdiction of County Commissioners to Establish a County Road, —■.Purpose of the Statute Requiring Notice to Abutting Owners— Estoppel Against Property Owners Resisting Payment of Assessment for Improvement of Road.</p> <p>1. The purpose of the notice to abutting owners, required by Sections 6872 and 6873, is to give opportunity for claiming compensation for land taken, and while failure to give such notice might not prevent a property owner from thereafter claiming compensation, such failure does not deprive the county commissioners of authority to act and in nowise affects the validity of the proceedings to establish the road.</p> <p>2. The recording of a plat of such a road and its recognition by the county commissioners as a county thoroughfare has the effect of establishing it as a public street upon annexation to a village of the territory through which it passes; and an abutting owner who has made deeds and leasés containing descriptions referring to the road and recognizing it as a public highway is estopped from thereafter resisting payment of an assessment for its improvement on the ground that it is not a dedicated highway or was never legally established.</p>

<p>GUARANTY OF A HEATING SYSTEM.</p> <p>(Guaranty — Where' Covering a Heating System — Not Met by Showing Substantial Compliance Where There is a Deficiency in Heating Power.</p> <p>Under a contract for furnishing a heating system with a written guaranty as to its efficiency, the guaranty as to heating power must be met, and this is not done by showing substantial compliance with the specifications in the matter of design, material or workmanship.</p>

<p>EVIDENCE AND INSTRUCTIONS TO THE JURY IN A WILL CONTEST.</p> <p>Wills — Error in Using Language in Charge to Jury Not Warranted hy the Evidence — Lay Witnesses Not Competent to Testify as to Capacity of Testator to Malee a Will at the Time the Will in Issue Was Made.</p> <p>1. In charging a jury in a will case, it is error to use such words as “misrepresentation,” “deception,” “coercion,” or “threats” in the absence of evidence upon which the use of such words might fairly be based.</p> <p>2. If. is also error to permit lay witnesses, such as porters, janitors, waiters, etc., employed about the place of business of the testator to testify as to his ability, at the time the will was made, to unden stand and decide large and complicated business propositions.</p>

<p>MODIFICATION OF A DECREE FOR. ALIMONY AFTER. TERM.</p> <p>Alimony — Changed, Circumstances of the Parties — Sufficient Ground for a Modification of the Award — Case Presented Where Former Husband’s Circumstances Had Greatly Improved — Probable Effect of the Sale of a Judgment for Alimony.</p> <p>After a decree of divorce and alimony has been granted a wife, the decree awarding alimony may be modified after the term at which it was granted when the application therefor is based upon new facts thereafter transpiring, of such character as to make the modification necessary to suit such altered conditions.</p>

<p>PUBLIC LIGHTING CONTRACTS.</p> <p>County Commissioners — Without Authority to Contract for Lighting County Buildings Without First Advertising for Bids — Section 2435-1.</p> <p>A contract entered into between county commissioners and a public lighting company for the lighting of county buildings for a definite period is invalid and will be canceled where made without first advertising for bids, notwithstanding no company other than the one with which the contract was made was engaged in furnishing light for public or private consumers in that locality or had the right to use the streets for that purpose, and the contract entered into without advertising was entered into in good faith, and the prices therein specified for lighting are reasonable, and the expense of advertising for bids has been saved.</p>

<p>INCOMPETENT RECITALS IN A STOCK LEDGER..</p> <p>Corporations — Stock Transferred Without Surrender of Original Certificate — Entries Showing Transfer in Stock Ledger Inadmissible — As Against Present Holder of Old Certificate Seeking to Have New Certificate Issued to Him and Payment of Dividends Accruing on the Old Certificate.</p> <p>Entries in a stock ledger showing the transfer of certain stock of the corporation, represented by a certificate which was not surrendered, are selfserving declarations and are not adrñissible in an action to compel the issuance of a- new certificate to the administrator of the holder of the unsurrendered certificate, in the absence of evidence that the original owner acquiesced in or had • knowledge of the making of said entries.</p>

<p>INJURY FROM COLLISION OF ELECTRIC CAR. WITH WAGON.</p> <p>Negligence — Oar Strikes Wagon at Street Intersection — Motion to Direct Verdict for Defendant Properly Overruled — Where Questions of Fact Are in Dispute — Competency of Evidence as to the Injuries Received — Charge of Court.</p> <p>1. An averment that the plaintiff was injured permanently, his right limb mangled and both bones broken between the ankle and knee, is sufficient to warrant admission of evidence to the effect that as a result of the accident his right leg was shortened.</p> <p>2. An erroneous instruction to the jury that if they find for the plaintiff they will assess his damages at such a sum as “in their opinion” would be reasonable and just, is cured by a subsequent instruction which directs the jury, in estimating the amount of damages to be awarded, to take into consideration the nature of the injury sustained and any impairment in earning power.</p>

<p>CHARACTER. OF AFFIDAVIT REQUIRED UNDER. THE BULK SALES LAW.</p> <p>Bullo Sales Law — Definition of the Term “Creditors” as Used Therein —Nature of the Affidavit Which Must he Filed With the Purchaser.</p> <p>1. The bulk-sales law (Sections 11102 et seq., G. C.), requires a list of all creditors to be furnished to the purchaser, or an affidavit that the seller has none.</p> <p>2. The term “creditors,” as used in Section 11102, G. C., refers to no particular class, but to all creditors of the seller.</p>

<p>THE PRACTICE OF ASTROLOGY, FORTUNE TELLING OR. CLAIRVOYANCY.</p> <p>Constitutional Law — Acf Prohibiting the Practice of Clairvoyancy, etc., Without a License — Does Not Interfere With Religious Freedom and Is a Valid Enactment — Tenets of Church to Which an Accused Fortune-Teller Belongs Not Material to His Defense.</p> <p>1. Section 13145, providing that “whoever, not having been legally licensed so to do, represents himself to be an astrologer, fortuneteller, clairvoyant or palmister, shall be fined,” etc., does not violate the section of the Bill of Rights guaranteeing religious freedom, hut is a valid and enforcible enactment.</p> <p>2. It is the representation, of possession of power to foretell future events where made by persons who are without a license so to do, which constitutes the gist of the offense, and exhibits disclosing the tenets of the religious society of which the accused is a member are immaterial in determining whether the accused has unlawfully made such representations.</p>

<p>RICHT OF APPEAL FROM THE INDUSTRIAL COMMISSION.</p> <p>Workmen’s Compensation Act — Construction of Section 27, Relating to ■ the Right of Appeal.</p> <p>A workman who suffers an injury while in the employ of one who has not complied with the provisions of the workmen’s compensation act has. no right of appeal from the determination of the State Liability Board of Awards on his application for compensation on account of such injury.</p>

<p>VALIDITY OF JUDGMENTS AGAINST MEMBERS OF BENEFICIAL ORGANIZATIONS.</p> <p>Mutual Benefit Societies — Judgments Against Individual Members— Secured in an Action Against 'the Society — Are Valid and Bnforcible, When — Complaint of Denial of a Day in Court Does Not Lie, When.</p> <p>1. A subscription to membership in a beneficial organization is equivalent to a power of attorney to tbe association to appear and act and be bound in tbe place of tbe said member in respect to tbe corporate functions of tbe association, and a judgment against an individual member for unpaid assessments to pay death losses, obtained against tbe association by a beneficiary acting for herself and all other beneficiaries similarly situated and entitled, is a valid judgment until met by tbe defense that tbe alleged debtor was not a member of tbe association at tbe time tbe liability arose, or that be has paid tbe assessment, or has a set-off against it.</p> <p>2. Tbe expression “a day in court” means simply that there has been due process of law with respect to notice to defendant and an opportunity to be beard, and complaint of denial of bis right to a day in court does not lie in the mouth of one who has been haled into court and given an opportunity to present a defense, but had none to offer which went to the merits of the case pending against him.</p>

<p>CONSTRUCTION OF A WILL WITH REFERENCE TO AFTER-ACQUIRED REAL ESTATE.</p> <p>Wills — Testatrix Dies after a Purchase of Real Estate Not Covered hy Her Will — Intention of Testatrix Derived from Residuary Clause— And Not from Consideration of the Will as a Whole.</p> <p>A will containing the general residuary clause, “the balance and remainder of my property of every kind and description I give and bequeath,” etc., covers after-acquired real estate, and in an action for partition of said real estate it will be treated as having passed under the residuary clause.</p>

<p>LIABILITY OF VILLAGE OFFICIALS FOR FALSE IMPRISONMENT.</p> <p>Mayor and Marshal Not Civilly Liable — For Arrest Alleged to Have Been Umoarranted — Because of Invalidity of Ordinance Claimed to Have Been Violated.</p> <p>Village officials are not liable to respond in damages for false imprisonment because of tbe alleged infirmity of the ordinance under ■which, the arrest was made, where they acted in good faith and with an honest belief in its validity.</p>

<p>RELIEF AFTER. JUDGMENT.</p> <p>Judgment Alleged to Save Been Obtained by Fraud — Allegations of Conspiracy and False Sioearing — Sufficient to Support Petition for Vacation of Such Judgment and Award of a New Trial — Materiality of Newly-Discovered Evidence — Section 11681, G. C.</p> <p>1. A petition containing allegations of a conspiracy to secure judgment by means of false testimony, which false testimony was given at the trial and a judgment obtained which was based thereon, states a good cause of action for vacation of said judgment and the award of a new trial, “for fraud practiced by the successful party in obtaining a judgment or order.”</p> <p>2. The court finds that the newly-discovered evidence proferred in this case is material and could not with reasonable diligence have been discovered and produced at the trial, and leaving its weight for determination by the proper tribunal the order granting a new trial is affirmed.</p>

<p>TITLE TO PROPERTY DEVISED CONDITIONALLY.</p> <p>Devise — Dependent upon a Condition Which Did Not Occur During the Lifetime of the Devisee — Dower Not Assignable to Wife of Devisee —Sale by Sim of Sis Prospective Interest — Wills—Partition.</p> <p>1. The surviving spouse of one who departed this life before the happening of the event which was made a condition of a devise in his favor going into effect, is not entitled to dower in the property so conditionally devised.</p> <p>2. The sale by a contingent devisee of his prospective interest in the estate does not defeat the claim of a son to whom one-half of the said interest was devised in the event of the death of the contingent devisee preventing the interest vesting in him.</p>

<p>INJURY TO THE GUEST OF A MOTORCYCLIST.</p> <p>Negligence — Collision Between Motorcycle and Taxicab — Young Lady on Tandem Seat Injured — Taxicab Attempts to Pass on Left Side of Standing Street Oar.</p> <p>While the negligence of a driver of a motorcycle can not be imputed to bis guest riding on the tandem seat, yet no recovery can be bad against tbe owner óf a taxicab, for injuries caused by a collision between tbe motorcycle and a- taxicab at a street intersection . where tbe only negligence of tbe latter consisted in its being driven arpund a standing street car on tbe left side, the right side of tbe street being obstructed by a voting booth on tbe corner, and tbe collision was caused by tbe failure of tbe motorcycle driver • to observe traffic ordinance and not by any fault of tbe driver of tbe taxicab.</p>

<p>CHARACTER. OF EVIDENCE REQUIRED TO ESTABLISH A TRUST IN LAND.</p> <p>Trust — Gan he Established in Land Only hy Olear and Convincing Evidence, When — Claim as to Funds Advanced for Purchase of Land Jointly Held.</p> <p>A trust can be grafted on land, held by a deed absolute on its face, only by evidence which is clear and of the most convincing character, and a claim of a lien on the proceeds arising from the sale in partition of land so held, on account of money advanced for its purchase, will be denied where the evidence as to the claim falls short of being of a clear and convincing character.</p>