Volume 27 — Ohio Circuit Court Decisions

This action was brought by the plaintiff against the above named defendants, to obtain a. temporary restraining order restraining the defendants and each of them from building, erecting or. constructing a levee as described in the petition, until the final hearing of this cause, and upon the final hearing a perpetual injunction be granted as prayed for in the petition.

<p>RAILROADS.</p> <p>Shields, Powell and Houck, JJ.</p> <p>1. Distance from Which to Look for Approaching Train at Crossing not Fixed Absolutely.</p> <p>The distance from which one, approaching a railway crossing on a public highway, must look before going upon the tracks is not absolutely fixed by law, the limit of the obligation on " the part of the person approaching the crossing is to exercise ordinary care under the circumstances, such as to enable the person to get across before a train within view going at the usual rate of speed of fast trains would reach such crossing. One after dark at forty feet from a crossing having a clear and unobstructed view of railroad tracks for a distance of three-fourths of a mile and neither seeing nor hearing a train approach, is not guilty of negligence preventing recovery, and a special request, stating that it was the duty of plaintiff, just before going upon the crossing “to look for the approach of trains,” is properly refused.</p> <p>2. Jury Determines Fact of Failure to Perform Statutory Requirement as to Headlight and Proximate Cause.</p> <p>Failure to display a headlight on a rapidly moving train after dark as required by Sec. $945-1 G. C., the statutory requirement being conceded, and if such failure was the proximate cause of a railway crossing accident are questions of fact for the jury to determine.</p>

<p>COURTS — DIVORCE AND ALIMONY.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Refusal of Trial by Jury upon Demand In Municipal Court Erroneous.</p> <p>Where a jury is demanded in the municipal court, before inquiry has begun into the merits of the cause, it is error to refuse trial by jury.</p> <p>2. Alimony Decreed In Other State Recoverable In Ohio Full Faith and Credit Clause.</p> <p>Recovery may be had under the full faith and credit clause of the federal constitution of installments of alimony which have become due under a judgment rendered in another state, notwithstanding the judgment is subject to possible modification by the court in which it was entered.</p>

<p>COURTS — JURY.</p> <p>Jones, Jones and Femeding, JJ.</p> <p>(Judge Femeding of the 2nd district sitting in place of Judge Swing.)</p> <p>Demand for Jury Trial Fixed by Statute not Court Rule.</p> <p>A rale of municipal court fixing a time other than that provided in the act creating the court when demand for a jury may be made is repugnant to the act; hence, it is erroneous to refuse a demand for a jury within the time fixed by the statute.</p>

<p>COURTS — CRIMINAL LAW — JUSTICES OF PEACE.</p> <p>Jones E. H., Jones, O. B. an® Gorman, JJ.</p> <p>Criminal Jurisdiction of Municipal Court in Cincinnati Township not Affected by Act Giving Special Jurisdiction to Justices of Peace.</p> <p>The special jurisdiction given to justices of the peace, police judges and mayors in criminal cases, conferred by Sec. 13423 G. C., as amended April 28, 1913, in no way modifies the Cincinnati municipal court act which gives to that court exclusive jurisdiction in Cincinnati township.</p>

<p>BUILDINGS — CONTRACTS—GUARANTY.</p> <p>Sayre, Merryman and Walters, JJ.</p> <p>(Judges of the 4th court of appeals sitting by designation.)</p> <p>Compliance with Specifications of Building Contract Insisted Upon Waives Guaranty Thereby Rendered Impossible.</p> <p>Where a building contractor proposes to comply with his guaranty, but in order to do so must disregard an impossible provision of the specifications, the owner by insisting on compliance with the specifications waives the guarantee.</p>

<p>INSURANCE — LIMITATIONS.</p> <p>Pollock, Metcalfe and Houck, JJ.</p> <p>(Houck, J., of the fifth appellate district, sitting in place of Spence, J.)</p> <p>New Action on Fire Insurance Policy not Barred by Lapse of More than Year after Fire, Former Action Having Been Dismissed Otherwise than Upon Merits.</p> <p>A clause which shortens the statute of limitations, as to the time for bringing suit on the contract in which said contract is incorporated, can not be enforced in the face of the provision of Sec. 11233 G. C., having reference to the time within which suit may be brought in cases which have failed otherwise than on the merits.</p> <p>[Syllabus by the court.]</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>Richards, Chittenden and Kinkade, JJ.</p> <p>(Judges of the 6th district sitting by designation.)</p> <p>1. Repeating at Trial by Third Persons Statements by One Who has been Injured as to Pain and Suffering Caused Thereby Incompetent. Statements by one who has been injured, as to the effect of the injury and the suffering caused thereby, can not be repeated from the witness stand by a physician not in attendance on the case or by third persons, in an action in which damages are sought on account of the injury.</p> <p>[Syllabus by the court.]</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Wildman, Kinfcade and Richards, JJ.</p> <p>1. Question of Ownership of the. Property Attached Can Not be Raised on Motion to Discharge the Attachment.</p> <p>A claim by the defendant in a suit in attachment that the property attached belongs to another can not be determined on motion to discharge the attachment.</p> <p>2. Right to Exemption Not Acquired by Subsequent Marriage.</p> <p>The marriage of the defendant, after the attachment is levied . but before sale of the property, does not afford ground for the claim that the property is exempt from attachment.</p> <p>3. Question as to Right of Appeal Waived by Trial on Merits.</p> <p>Any question as to the right of appeal from an order of the</p> <p>justice of the peace discharging the attachment is waived by going to trial in the common pleas court on the merits without raising the objection.</p> <p>[Syllabus by the court.]</p>

<p>DEEDS.</p> <p>Crow, Ansberry and Kinder, JJ.</p> <p>1. Language Ineffectual to Reserve In Escrow Deed Power- ofl Alienation.</p> <p>Language employed by way of condition or exception in a deed of conveyance of real estate reserving to the grantor the power of alienation of the state conveyed, will, on grounds of public policy, be denied effect for repugnacy.</p>

<p>BROKERS — PRINCIPAL AND AGENT.</p> <p>Jones, .Tones and Gorman, J.T.</p> <p>Real Estate Broker Entitled to Commission Where Purchaser Willing and Able to Take Property Produced Nothwithstanding Contract of Purchase is Unenforceable.</p> <p>The fact that a contract of purchase of real estate, procured by a real estate broker, was imperfectly executed, is not ground for refusing the judgment in favor of the broker for the amount of his commission, where the purchaser produced stands ready and is able to take the property at the agreed price, notwithstanding the infirmity in his contract of purchase.</p>

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

<p>NEGLIGENCE.</p> <p>Shields, Powell and Houck, JJ.</p> <p>Operator of Traction Engine not Liable for Death of Bystander Caused by Bursting of Boiler on Highway.</p> <p>Recovery of damages can-riot be had for the death of one who was killed by the bursting of the boiler of a traction engine, which was being operated on a public road, where the decedent was not an employe of those owning and operating the engine, and was not present by invitation, but was a mere onlooker idly watching the operation of the engine.</p> <p>[Syllabus by the court.]</p>

<p>LANDLORD AND TENANT.</p> <p>Richards, Chittenden and Kinkead, JJ.</p> <p>(Judges of the 6th court of appeals sitting by designation.)</p> <p>1. Negotiations riot Executed Regarding New Lease do not Relieve Tenant from Holdover Year’s Rental.</p> <p>Where a tenant by the year holds over, and thereafter there are negotiations regarding a new lease but none is executed, the negotiations regarding the new lease in no way operate to relieve the tenant from the obligation for another year’s rental which he assumed by holding over.</p> <p>2. Failure of Landlord to Make Promised Repairs does not Relieve Tenant from Payment of Rent.</p> <p>Failure on the part of a landlord to make promised repairs does not release the tenant from the obligations of his lease, but his remedy is by way of an action for damages for failure to carry out the agreement to make repairs.</p> <p>3. Retention of Key Sent Through Mail not Acceptance by Landlord of Lease Surrender.</p> <p>Retention by the landlord of the key to the premises sent to him through the mail does not constitute an acceptance of the surrender of the lease.</p> <p>[Syllabus by the court.]</p>

<p>CONTEMPT — MUNICIPAL CORPORATIONS.</p> <p>Shields, Powell and Norris, JJ.</p> <p>(Judge Norris of the seventh district sitting in place of Judge Voorhees.)</p> <p>1. Officials not Parties to Original Action to Restore Police Official to Office not Punishable for Contempt for Refusal to Pay Salary During Suspension.</p> <p>The relator was removed from his office of chief of police by the mayor of the city. In a mandamus proceeding brought for that purpose by the relator, the mayor was ordered to restore him to his office of chief of police in the city with all the privileges, prerogatives and emoluments thereunto belonging, which order was finally affirmed by the Supreme Court. The mayor restored the relator to his office of chief of police. Subsequently the relator, not having been paid his salary and fees during the period covered by his suspension, filed a motion in the circuit court asking for a rule against the mayor, director of public safety, city auditor, and treasurer of such city, requiring them and each of them to show cause why they should not be attached for contempt for not paying the relator his salary and fees during such period of suspension. Held: That the director of public safety, city auditor and city treasurer, not having been parties to the original action and proceeding in which the order was made, can not be attached for contempt in disobeying an order made therein, and that the mayor, having restored the relator to his office, had performed all the duty devolving upon him.</p> <p>2. Members of Bar Named to Prosecute Such City Officials not Entitled to Attorney Fees.</p> <p>In a subsequent hearing, it appearing that on the application of the relator, three members of the bar were named by the court to prosecute such contempt proceeding against the above named city officials, and the question was presented as to whether or not the three attorneys named should be allowed and recover as costs in the case fees either against the defendant or the city. Held: That the case is not one in which attorney fees as costs can be allowed;</p> <p>[Syllabus by the court.]</p>

<p>EJECTMENT — MORTGAGES.</p> <p>Ferneding, Powell and Houck, JJ.</p> <p>(Judge Ferneding of the 2nd district sitting in place of Judge Shields.)</p> <p>1. Jurisdiction In Foreclosure under a Cross Petition, not Obtained without Service.</p> <p>Jurisdiction to render judgment on a cross petition is not 'conferred by the service had on the petition praying for foreclosure of a mortgage, where the cross petition was not filed for several months after the entering of a decree of sale on the petition, and did not ask for the sale of the same land as that described in the petition but had reference to a different parcel of land, and the relief sought was not the same hut of a different nature, and the codefendant whom it is sought to hold under the service upon the petition did not enter his appearance under the cross petition.</p> <p>2, Rights of Mortgagor and Mortgagee After Condition Broken in Ejectment.</p> <p>But a suit in ejectment does not lie upon the petition of a mortgagor, or his heirs and devisees or supposed successors in title, where the condition of the mortgage has been broken: from which it follows that the defective service in the instant case is without avail to the plaintiff who claims title through the mortgagor.</p>

<p>PENSIONS.</p> <p>Marvin, Winch and. Niman, JJ.</p> <p>Pensioned Fireman Can Not be Discharged for Offense Before Retirement.</p> <p>A fireman who has been retired and regularly put upon the pension roll in accordance with the laws of the. state and the regulations of the trustees of the firemen’s pension fund, can not thereafter be discharged from the fire department fo.r violating one of its rules before his retirement, and his pension be reduced.</p>

<p>BILLS, NOTES AND CHECKS.</p> <p>Shields, Powell and Houck, JJ.</p> <p>Rule as to Liability to Purchaser for Value Before Maturity not Changed by Statute Having Reference to Qualified Endorsements.</p> <p>The gualified endorsement of a note “without recourse” simply precludes the endorsee from holding the endorser liable to him in the event the maker fails to pay the note, and the statute having reference to gualified endorsements in no way changes the well established principle of law that the purchaser of commercial paper for value before due, in the absence of fraud or knowledge of any infirmity in the instrument or defect in the title thereto, deprives the maker of any defense.</p> <p>[Syllabus by the court.]</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Nonresident Properly Named as Executor.</p> <p>A nonresident who has been named in a will as executor is entitled to appointment by virtue of Sec. 10605 G. C. if he be of age and of sound mind and untainted by conviction of crime, notwithstanding a rule of court to the contrary, especially since a large part of the estate is in nonresident’s state and that three residents are also named as coexecutors.</p>

<p>ACTION — GIFTS—PLEADINGS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Action for Recovery of Gift of Corporate Stock Transferred by Donee is for Recovery of Money.</p> <p>An action for recovery of tbe value of corporate stock, received by the defendant as a gift from an aged woman alleged to have been incompetent by reason of senility, is for the recovery of money only where the stock has been transferred by the donee.</p> <p>2. Amendment Eliminating Charge of Fraud and Substituting Undue Influence Permitted.</p> <p>An amendment, during trial, which eliminates a charge of fraud and substitutes therefor a charge of undue influence is not improper; particularly where the jury subsequently found that the donor was of unsound mind but that no undue influence was exerted; nor is it error to refuse a continuance because of such an amendment.</p> <p>3. Contractual, not Testamentary Capacity Essential to Sustain Gift Executed by Aged Woman not Anticipating Death.</p> <p>Contractual rather than testamentary capacity is required to uphold a gift of corporate stock, made by an aged woman without immediate prospect of death and rendered immediately effective by assignment and delivery.</p>

<p>ERROR — JUDGMENTS—PRIORITIES.</p> <p>Shields, Powell and Houck, JJ.</p> <p>1. Nunc Pro Tunc Entry not Reviewable without Bill of Exceptions.</p> <p>A reviewing court under the rule of decision that a motion for an entry nunc pro tunc must be sustained by clear and convincing evidence, is without authority to reverse a judgment overruling such a motion where there is no bill of exceptions embodying the evidence upon which the motion was overruled below.</p> <p>2. Priorities of Judgments of J. P. Fixed by Dates of Filing Transcripts in Common Pleas.</p> <p>Judgments rendered by a justice of the peace are governed by' Sec. 11661 G. C. and become a lien as of the date and in the order of the filing of the transcripts where such filing occurs during the term; hence, a decree of distribution giving them priority in the order of their filing will not be disturbed.</p>

<p>JUDICIAL SALES.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Indefinite Description does not Bar Claim of Title where the Public Records Afford Notice of Plaintiff’s Rights.</p> <p>A claim of title as an innocent purchaser of property at a public sale can not be based on the indefinite description contained in the deeds through which plaintiff asserts his claim, where the public records, plats and indexes pertaining to the parcel in controversy were sufficient to serve as notice of the rights of the plaintiff therein.</p>

<p>MUTUAL BENEFIT ASSOCIATIONS.</p> <p>Shields, Powell and Houck, JJ.</p> <p>1. Insured Fatally III with Tuberculosis Changing Beneficiary from Wife to Mother, not Evidence of Incapacity.</p> <p>The fact that insured, when fatally ill with tuberculosis, left his wife and went to live with his mother, and refused longer to support his wife and in some ways showed ill-will toward her, and caused his mother to be made the beneficiary instead of his wife in his certificate of life insurance, does not establish unsoundness of mind or memory on his part or the exercise of undue influence over him.</p> <p>2. Changing Beneficiary from Wife to Mother Valid.</p> <p>In making a change of beneficiary the insured exercised a right granted him under the rules of the order, as well as under the established rule of law that where the change is made substantially as provided for in the laws of the order or association, and to its full satisfaction and that of the insured, it is a valid change.</p> <p>3. Beneficiary, Dropped from Life Insurance Certificate, Entitled to Reimbursement for Assessments Paid.</p> <p>Where it appears that the beneficiary whose name has been dropped from a certificate paid certain of the assessments out of her own money, a court in ordering distribution of the proceeds of the certificate will direct that the amount so paid be restored to the one paying it.</p>

<p>CARRIERS.</p> <p>Richards, Chittenden and Kinkade, JJ.</p> <p>(Judges of the 6th district sitting hy designation.)</p> <p>Carrier Required to Show that Fire, Destroying Goods after Billed for Shipment, was without Its Fault.</p> <p>In an action against a railway company, to recover the value of goods destroyed hy fire, after being billed for shipment, where the bill of lading exempts the carrier from liability for loss occurring by fire without its fault, after the nondelivery of the goods is shown the duty rests upon the carrier to show that the loss was within the terms of the exception and occurred without its fault; and this principle is applicable although the fire originated on the premises of the plaintiff.</p> <p>[Syllabus by the court.]</p>

<p>LANDLORD AND TENANT;</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Landlord not Liable to Tenant Injured Through Her Own Negligence.</p> <p>A tenant of part of a building can not recover damages against her landlord for personal injuries received by her from the falling over upon her of a heavy "radiator standing unfastened to anything in a common hallway of the building, where the evidence points more strongly to her own negligence than to any other cause of the accident.</p>

<p>COURTS — MANDAMUS—OFFICE AND OFFICERS.</p> <p>Heals, Grant and Carpenter, JJ.</p> <p>1. Proper Test as to Whether Official Duties are Discretionary or Ministerial.</p> <p>When an official duty does not belong inherently to the office itself, but may be devolved upon some other officer to perform, it is ministerial and its performance may be required by mandamus.</p> <p>2. Mandamus Lies to Compel Issuing of Warrants by Municipal Court Judge.</p> <p>The duty assigned by statute to a municipal court judge oí issuing warrants, where the complaint and affidavits are sufficient, is ministerial and one which may be controlled by judicial power, and mandamus lies to compel the issuing of such warrants.</p>

<p>ERROR-TRIAL.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Motion for Withdraws! of Juror and Continuance not Final Order.</p> <p>The withdrawal of a juror and granting of a motion to continue the cause, after a motion to instruct the jury to return a verdict for the defendant had been argued in part but before it had been submitted to the court or any intimation had been given as to what its decision would be, is not an order affecting a substantial right, and a proceeding in error based thereon does not lie.</p> <p>2. Right to Dismiss without Prejudice Exists up to Final Submission.</p> <p>The right to dismiss without prejudice exists up to final submission of the cause to the court or jury, and dismissal at the time it was granted in the present case was within the discretion of the court, and was not prejudicial to the rights of the defendant whose motion for an instructed verdict was as yet undetermined.</p>

<p>COSTS — PRINCIPAL AND SURETY.</p> <p>Crow, Ansberry and Kinder, JJ.</p> <p>L Notice of Payment or Demand Not Condition Precedent to Right of Recovery in Action for Contribution from Cosurety.</p> <p>A surety who has paid more than his ratable share of a debt, is entitled to contribution from a cosurety, without averring or proving notice, or demand of payment.</p> <p>2. Costs Recoverable in Action for Contribution from Cosurety.</p> <p>In an action for contribution where the only relief sought is a judgment for money, costs are recoverable by plaintiff, as of right, under Sec. 11624 G. C.</p>

<p>GIFTS — RELIGIOUS SOCIETIES.</p> <p>Donations to Missionary Society Evidenced by Annuity Bonds, Held Executed Gifts in Which Administrator has no Interest.</p> <p>Donations made by a decedent to a missionary society, receipted for by papers denominated annuity bonds and which recite that such donations are executed gifts to the society and are to belong to such society from the date thereof without any account or liability therefor, and which contain an agreement to pay an annuity to the donor during his lifetime, and such annuities being paid to the time of the donor’s death, are in fact executed gifts in which the administrator of the donor has no interest.</p> <p>[Syllabus by the court.]</p>

<p>INSURANCE.</p> <p>Sayre, Jones and Walters, JJ.</p> <p>1. Plaintiff Suing for Insurance Required to Plead in First Instance Legal Excuse for Noncompliance with Policy.</p> <p>A plaintiff who intends, in an action on a policy of Are insurance, to rely on a legal excuse for nonperformance of a condition of the policy, should plead such excuse in the first instance.</p> <p>2. Insurance Company not First Required to Bona Fide Ascertain Amount of Loss and Submit Same to Insured.</p> <p>Where an insurance company by letter informs a policy holder who has suffered loss by fire that it disagrees with him as to the amount of goods destroyed and also as to the value of the goods which were destroyed, there is a sufficient disagreement to require the plaintiff to comply with the contractual provision in the policy regarding appraisal; and it is not the law of Ohio that the company must first make a bona fide investigation of the loss sustained and make a definite ascertainment of the amount and submit the same to the insured.</p> <p>3. Telephone Conversation in which Insured Proposes Plan of Arbitration without Reply by Adjuster not Estoppel or Waiver of Appraisal Condition of Policy.</p> <p>A telephone conversation between the insured and an adjuster for the company, in which the insured told the adjuster they would each pick a man “and the two pick a third, or settle the matter in any way at all,” to which proposition the adjuster made no reply, does not constitute an estoppel against the company or a waiver of its right to insist upon the provisions of the contract with reference to an appraisal.</p>

<p>ELEVATORS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Boy’s Foot Crushed between Elevator Platform and SMI of Unscreened Window not Injury within Machinery Guarding Statute.</p> <p>Failure to screen a window lighting an elevator shaft does not render the proprietor under Sec. 1027 G. C. liable to a hoy whose foot, when projected over the open side of a freight elevator, was caught and crushed between the base of the elevator and the window sill.</p>

<p>INSURANCE.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Beneficiaries Who Satisfied Debt for Which Insurance Policy Was Pledged Entitled to Indemnity.</p> <p>Beneficiaries under a policy of life insurance, who have been compelled to pay a loan which the insured by pledging the policy obtained for his own use and benefit, are entitled to judgment against the estate of the insured for the amount of the debt so satisfied.</p>

<p>CIVIL SERVICE — PROHIBITION, WRIT OP.</p> <p>Crow, Robinson and Kinder, JJ.</p> <p>1. Writ of Prohibition Invoked by Injured Party to Prevent Inferior Tribunal’s Unlawful Exercise of Jurisdiction.</p> <p>A writ of prohibition may issue, in a proper case, upon the application of a person in his own behalf to prohibit an inferior tribunal from exercising jurisdiction, not possessed by such tribunal, to the injury of such person.</p> <p>2. Mayor without Authority to Try Municipal Civil Service Commissioner.</p> <p>The chief executive of a city has no jurisdiction under Sec. 486-19 G. C., to try a municipal civil service commissioner on a charge of inefficiency, neglect of duty or malfeasance in office, which charge contains no averments of the facts which constitute such inefficiency, neglect of duty or malfeasance in office. And in such a case prohibition is a proper remedy.</p> <p>3. State Civil Service Commission’s Investigation and Report not Prerequisite to Instituting Proceedings against Municipal Civil Service Commissioner.</p> <p>An investigation of the official conduct of a city civil service commissioner by the state civil service commission or the making of a report of such investigation in writing to the chief executive authority of such city, is not a condition precedent to filing or prosecution of charges of official misconduct against such city civil service commissioner before such chief executive.</p>

<p>GUARANTY — HUSBAND AND WIPE.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Extension of Time of .Payment of Husband’s Account Consideration for Guaranty thereof by Wife.</p> <p>An endorsement made April 16, 1904, by a wife upon a statement of account due from her husband, “I will see that this account is paid by $25 a month beginning August 1, 1904,” constitutes a guaranty, consideration for which would be furnished by an extension of time given her husband; and in an action against her on the agreement the creditor might show that no demand for payment was made before August 1, as some evidence not only that an agreement for extension had been made but that it had been kept by creditor.</p>

<p>CRIMINAL LAW — HOMICIDE.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Eye Witness of Shootirjg Identifying Accused at Police Station as Person Shooting Competent to Identify at Trial.</p> <p>On the trial of one indicted for murder in the second degree, it is not reversible error to permit an eye witness of the shooting to testify that after the arrest of the accused he went to the police station and picked out the accused as the person who did the shooting, where he is able at the trial to identify the accused, and does so.</p> <p>2. On Second Degree Murder Trial Excluding Verdicts Except for Highest Offense and Manslaughter, Erroneous.</p> <p>In such trial it is error to charge that the jury should either find the accused guilty of murder in the second degree or manslaughter or acquit him, for this excludes the two lesser offenses of assault and battery and assault alone.</p>

<p>TORTS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Release of One Joint Tort Feasor, Releases All.</p> <p>Joint tort feasors are not joint debtors, within the purview of Sec. 3166, R. S. (Sec. 8084 G. C.) which provides that one joint debtor may compromise the claim against himself alone, without releasing his joint debtor.</p>

<p>LIBEL AND SLANDER.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Witness not Permitted to State Understanding Whom Meant in Newspaper Article not Mentioning Name.</p> <p>In an action for libel, upon a newspaper article which does not mention the plaintiff’s name, it is proper to sustain an objection to a question ashed of a witness as to who he understood was referred to in the publication.</p> <p>2. Terming Transaction Libel, all Facts Set Out Showing not Offense, not Libelous.</p> <p>An action for libel can not be maintained upon a newspaper article which terms a certain transaction a larceny, where all the facts of the transaction are truthfully set out and show that it is Hot a larceny.</p>

<p>JUDICIAL SALES.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Purchaser in Possession After Judicial Sale Set Aside Liable for Use of Premises.</p> <p>One who goes into possession of premises, purchased at an administrator's sale of lands to pay a decedent’s debts, is liable for the value of the use of the premises, if the sale is after-wards set aside.</p>

<p>CORPORATIONS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Illegal Prohibition on Sale of Corporate Stock.</p> <p>It is not a good excuse for refusal to transfer certificates of stock on the hooks of a corporation, that the transferrer of the stock has failed to comply with a by-law of the company providing that no stock shall be transferred to a person not a stockholder until the board of directors has been offered an opportunity to purchase the stock at the value fixed at the next preceding annual meeting of the stockholders, plus 6 per cent, from the date of said meeting. The by-laws of a corporation can not legally prohibit or limit the right of a stockholder to sell his stock.</p>

<p>DEEDS — PARENT & CHILD.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Deed from daughter to Mother Set Aside for Want of Consideration. A deed made without consideration by a daughter to her mother shortly after coming of age, will h© set aside, notwithstanding it recites a consideration of one dollar, if the circumstances show that the daughter was not acting upon independent judgment of her own, uninfluenced by her mother.</p>

<p>ACTIONS — CONTRACTS.</p> <p>Marvin, Winch and Henry, JJ</p> <p>Taking Judgment for Part of Amount Claimed Waives Balance.</p> <p>In an action for the amount due at an agreed price for a carload of oranges, the answer alleged that the oranges arrived in a frozen condition and were riot accepted; that notice of nonacceptance was given the shipper and that the fruit would be sold upon a commission basis, which was done, realizing less than the agreed price, which less sum it was admitted was due the plaintiff. For this admitted amount plaintiff took judgment and asked for trial as to the balance of his claim under favor of Sec. 5320 R. S. (Sec. 11592 G-. C.); this was denied him. Held: no error.</p> <p>[Syllabus by the court.]</p>

<p>AUTOMOBILES.</p> <p>Richards, Chittenden and Kinkade, JJ.</p> <p>Municipal Corporations Prohibited from Regulating Speed of Automobiles.</p> <p>By virtue of the provisions of Sec. 6307 G. C., councils of municipalities acting under the general law are prohibited from regulating by ordinance, by-law or resolution, the speed of motor vehicles within the municipality.</p> <p>[Syllabus by the court.]</p>

<p>CORPORATIONS — NOVATION.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Note Obligating Stockholder Transferred after Repeal of Double Liability, Renewed in Name of Transferee, Novation.</p> <p>Where a note evidencing a debt upon which stockholders would be liable, was transferred after the change in the law by which stockholders liability was abolished, and was subsequently renewed by and in the name of the transferee, there was such a novation that the original debt and its incidents were extinguished.</p> <p>2. One Induced by Fraud to Subscribe for Stock Liable for Debts Subsequently Incurred, Creditor as to Others.</p> <p>When one is induced through fraudulent representations to subscribe for stock in a corporation, upon the insolvency of the corporation he will be liable as a stockholder so far as creditors of the corporation who became such subsequent to the date of his subscription are concerned, but as to other stockholders, he himself is a creditor.</p> <p>3. Liquidating cannot Acquire Title to Stock making Corporation Liable as Stockholder.</p> <p>Liquidating trustees of an insolvent corporation have no authority to acquire the legal title to stock which has been pledged with the insolvent corporation to secure a loan and when such stock is transferred to them, the corporation which they are liquidating does not become liable as a stockholder, nor for unpaid subscriptions on the stock transferred.</p>

<p>AUTOMOBILE — MASTER AND SERVANT.</p> <p>Marvin, Winch and Niman, JJ.</p> <p>Owner of Automobile not Liable for Negligence of Employe Using Automobile Without Authority.</p> <p>When an employe of the owner of an automobile steps aside from his employment and uses his employer’s automobile for his own purposes alone, during which use he negligently injures another, the employer is not liable for such injuries.</p>

<p>EASEMENTS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Right of Way Conditions Existing at Time of Conveyance Control.</p> <p>Conditions existing at the time of conveyances by a common grantor as to a right of way constructed with the knowledge and assistance of the grantee before his purchase of such lot, entitle the grantees of other lots to a way out and rights then obtaining in the existing roadway, notwithstanding no reservation of the easement was made in the conveyance of the serv-ient lot and notwithstanding other rights of way over other lots are available.</p>

<p>ERROR — EVIDENCE—WILLS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Photograph Admissible to Prove Appearance of Testator in Will Contest.</p> <p>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>Exclusion of Testimony on Objection Testing Weight Rather than Competency not Prejudicial.</p> <p>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>INJUNCTION — TRESPASS.</p> <p>Sayre, Merriman and Walters, JJ.</p> <p>(Judges of the 4th district sitting by designation.)</p> <p>Injunction Lies to Prevent Repeated Trespasses by Stock to Avoid Multiplicity of Suits for Damages and Attendant Costs and Expenses.</p> <p>A bill in equity lies to restrain a defendant from permitting his stock to trespass upon the land of plaintiff, where a multiplicity of suits would be thereby avoided, together with costs and expenses in each suit which would probably exceed the amount of damages recovered.</p>

<p>ELECTION — PLEADING—WILLS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Filing Supplemental petition in Will Contest Setting up Contract of Settlement Without Contest no Election is Required.</p> <p>Where an action has been brought contesting the validity of a will, and in a supplemental petition a contract of settlement is set up which gave the plaintiffs a specified amount in consideration of their permitting a consent verdict to be taken sustaining the will, which sum of money promised in settlement has not been paid them, it is error to require plaintiffs to elect upon which cause of action they will proceed, it being their right to seek relief on the supplemental petition, and failing in that to try the issue as at first made up as to the validity of the will.</p>

<p>PRINCIPAL AND SURETY.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Surety not Bound for Firm Debt Without Notice of Partnership Relation of Principal.</p> <p>A surety can not. be held for a firm debt, where he testifies that at the time he signed the bond he did not know the man for whom he was signing was a member of the partnership, and his testimony is riot denied.</p>

<p>ERROR — TRIAL.</p> <p>Marvin, Winch and Wildman, JJ.</p> <p>Dismissal of Case after Court Grants Motion to Direct Verdict for Defendant, Erroneous.</p> <p>At the conclusion of the plaintiff’s evidence, a motion having been made to direct a verdict for the defendant which the court has announced it will grant, it is erroneous to permit the plaintiff to dismiss the case without prejudice.</p>

<p>LANDLORD AND TENANT.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Tenant under Written Lease Holding Over Bound for Another Year.</p> <p>When a tenant under a written lease for one year holds over after the expiration of his lease, he impliedly holds as a tenant for another year, at the option of the landlord, under the same terms and conditions as in the original lease.</p> <p>2. Parol Contract of Tenant in Possession under Lease by Year within Statute of Frauds.</p> <p>A parol contract for a new lease from month to month, between landlord and tenant in possession under an existing lease by the year, is within the statute of frauds unless the possession and holding after the expiration of the first lease is distinctly referable to the new contract and not to a continuance under the original lease.</p>

<p>CORPORATIONS — LIMITATIONS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Eighteen Months Limitation Refers to Secondary Liability of Stockholders not to Actions for Unpaid Subscriptions.</p> <p>The provisions of Sec. 8688 G. C., that an action upon the liability of stockholders - can only be brought within eighteen months from the time the debt or obligation became enforcible, refers to secondary liability only, and not to actions for unpaid subscriptions for stock.</p> <p>2. Future Estimated Attorney Fees to Recover Stockholders’ Liability not Allowed in Action for Unpaid Subscriptions.</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. (Dicta)</p>

<p>ACTIONS — CONTRACTS—ELECTION.</p> <p>Sayre, Merriman and Walters, JJ.</p> <p>(Judges of the 4th district sitting by designation.)</p> <p>1. Party Obtaining Judgment on Contract cannot Deny Binding Effect thereof.</p> <p>In an action upon a contract, the party who defends the contract and obtains judgment thereunder cannot thereafter say that the contract is not binding on him because the other party failed to fulfill his part in some minor respect.</p> <p>2. Party Electing Remedy to which He was not Entitled not Precluded from Resorting to Proper Remedy.</p> <p>An election of remedies presupposes the existence of more than one remedy, and where it developes that as a matter of fact the plaintiff was mistaken in the belief that he had two remedies, his attempt to avail himself of one to which he was not entitled does not preclude him from resort to the remedy which the law gives him.</p> <p>[Syllabus by the court.]</p>

<p>MORTGAGES.</p> <p>Shields, Powell and Houck, JJ.</p> <p>Restoration of Lien of Mortgage Transferred as Collateral and Inadvertently Released by Transferee on Mortgage Record.</p> <p>Where the transfer of a mortgage, which is being used as collateral security, is not absolute on its face, but is of such a character as to clearly show it is a limited transfer, sufficient notice is afforded to one examining the title to the premises described in the mortgage that the transferee is not the absolute owner and has no right to release it of record, and a notation on the mortgage record, placed there by the mortgagee and inadvertently made in the form of a full release, should be stricken therefrom and the precedence of the lien originally attaching to such mortgage fully restored.</p> <p>[Syllabus by the court.]</p>

<p>BASTARDS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Consent by Reputed Father of Bastard to Pay Weekly Fixed Sum for Support Instead of Lump Sum.</p> <p>Under the provisions of Sec. 12123 G. C. 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>BONDS — MUNICIPAL CORPORATIONS — PUBLICATION.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Validity of Municipal Bonds not Affected by Failure to Publish Notice of Election for Statutory Period.</p> <p>Failure of election officials to publish., for the full thirty days required by law, notice that at an approaching election the question of authorizing an issue of municipal bonds will be submitted, does not render the election invalid as to said bonds,'' where the election was held in other respects in accordance with law and there is abundant evidence that knowledge of an intention to submit said question was brought home to the great body of the electors.</p> <p>2. Bond Issue on Majority Less than Two-thirds Valid Only within Two and One-half per cent Restriction.</p> <p>Where a bond issue is authorized by a majority but not by a two-thirds vote, Sec. 3952 limiting the issue to two and one-half per cent of the total value of the city property as listed for taxation is applicable, and the authorization is valid only within the limits of the two and one-half per cent restriction.</p>

<p>MALICIOUS PROSECUTION.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Probable Cause in an Action for Malicious Prosecution.</p> <p>In instructing a jury with reference to probable cause in an action for malicious prosecution, it is tbe duty of the court to apply the law to the facts by instructing them whether the facts which the evidence tends to establish, if found by them to exist, did or did not constitute probable cause for the prosecution.</p> <p>2. Refusal to Charge as to Effect of Advice of Counsel.</p> <p>In an action for malicious prosecution it is error to refuse to give a special charge to the effect that, if the party causing the arrest in good faith laid the facts before an attorney and acted upon his advice in causing the arrest to be made, such advice is conclusive evidence of probable cause for the institution of the prosecution.</p> <p>3. Waiving Examination in Preliminary Hearing and Indictment Returned.</p> <p>Refusal to give a special charge in an action for malicious prosecution, to the effect that the waiving of examination by the defendant before a justice of the peace is prima facie evidence of probable cause; or to refuse the special charge that the return of an indictment against the plaintiff by a grand jury is prima facie evidence of probable cause for the arrest, constitutes error.</p> <p>4. Effect of Indictment Noilied.</p> <p>In such action to charge that if the defendant knew before the case was noilied that the charge was not well founded, his continuance in said prosecution may be regarded as evidence of actual malice for which punitive damages may be awarded, where there was no evidence that the defendant possessed such knowledge, and no explanation was given of punitive damages or of the kind of a case in which such damages may be awarded is error.</p>

<p>CARRIERS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Agreement by Carrier to Render Additional Service does not Render Contract Void.</p> <p>The waiver by a carrier of one of the provisions of a uniform contract of shipment, thereby giving to the shipper a service other and greater than that specified in the contract, does not render the contract void ■ under the Ohio statute relating to unlawful preferences for transportation wholly within the state, unless the discrimination thereby given to the shipper is unjust or unreasonable and can fairly be considered as granting some privilege or concession not enjoyed by others similarly engaged.</p>

<p>COUNTIES — PARTIES—TORTS.</p> <p>Shields, Powell and Houck, JJ.</p> <p>1. Right of Party Suing in Tort to Join Joint Tort Feasors as Parties.</p> <p>A party suing in tort has the right to join or omit to join the different joint tort feasors as parties to his action for damages.</p> <p>2. County Commissioners, not State Highway Commissioner, Responsible for Injuries to Traveler on Road Reconstructed by State Aid.</p> <p>The duties of the state highway commissioner with reference to the construction of roads by means of state aid are ministerial or advisory, and the responsibility for keeping in a condition for safe travel a road undergoing such reconstruction rests upon the county commissioners, and liability arises against them where a traveler over such road who is injured as a result of negligence by the contractors in the prosecution of the work.</p>

<p>ERROR — TRIAL.</p> <p>Powell, Voorhees and Shields, JJ.</p> <p>Error in Directing Verdict on Statement of Counsel.</p> <p>For a court to direct a verdict for the defendant, after hearing counsel state their case to the jury, is an arbitrary and unreasonable exercise of judicial authority and such an abuse of discretion as to require a reversal of the judgment by the reviewing court, where after the statement by counsel for the plaintiff had been challenged by the court no opportunity was given to modify or explain or add to the statement so made.</p>

<p>FRAUD — RESCISSION.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Liability for Innocently Making False Representations as to Value.</p> <p>Under the rule that one who obtains the property of another through untrue statements, though in ignorance of their falsity, must be held responsible for a legal fraud, the grantee of real property is required to make good to a widow as grantor the amount of loss sustained by her by reason of her reliance on representations made by him as to the value of certain bank stock given to her in part' payment, for real estate.</p> <p>2. Vendee Misrepresenting Value of Stocks Applied on Purchase of Realty Given Option of Making Vendor Good or Submitting to Rescission.</p> <p>In an action for rescission of a contract for sale of real estate and reconveyance of the property to plaintiff, on the ground of misrepresentation as to value, a court of equity, upon finding that the misrepresentations were made as to a material fact and not as an expression of opinion will give the defendant the option of making the plaintiff whole as to the amount lost by reason of such misrepresentations or a reconveyance of the property upon receiving the return of the consideration.</p>

<p>RAILROADS.</p> <p>Powell, Voorhees and Shields, JJ.</p> <p>Failure of Driver Approaching Crossing to Act upon Seeing Possible Danger not Contributory Negligence.</p> <p>A special finding- by the jury that the decedent could have seen as far as a point named by them in the direction from which the locomotive which struck and killed him was approaching, is not equivalent to a finding of contributory negligence or inconsistent with a general verdict in favor of the administrator, inasmuch as he may have looked but been misled as to the speed of the locomotive or the absence of danger signals upon which he had a right to rely and thus been led to believe he could cross the track in safety.</p>

<p>WILLS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Construction of Words "All the Rest, Residue and Remainder” does not Revoke Devise of Realty.</p> <p>The provision of a codicil that “all the rest, residue and remainder of my estate I desire to he converted into money by my executors,” does not by implication revoke a clear and certain devise of real estate contained in another item of the will, but refers to the real estate not covered by such item and remaining to be disposed of.</p>

<p>OFFICE AND OFFICERS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Temporary Appointment to Municipal Service before Act of 1913 Effective is Incumbent and Holds until Disqualified or Discharged for Cause.</p> <p>One given a temporary appointment to the municipal service during the year 1912 and prior to the furnishing of an eligible list by the civil service commission, after a competitive examination in which he participated, is an incumbent at the time the civil service law of 1913 went into effect, and is entitled ■to hold his position until he fails to qualify therefore or is discharged for cause; no rights were waived by his taking such competitive examination.</p>

<p>CHATTEL MORTGAGES.</p> <p>Marvin, Winch and Niman, JJ.</p> <p>Purchaser of Chattel Mortgage Selling Same Liable for Conversion.</p> <p>One who purchases of a mortgagor, a chattel upon which there is a properly executed and recorded chattel mortgage, and resells the chattel to a third person, is liable to the mortgagee in an action for conversion.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Sayre, Merriman and Walters, JJ.</p> <p>Affidavit for Attachment Executed Before Plaintiff’s Attorney not Validated by Substitution of Name of Another Notary.</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. Hence, where an affidavit for attachment is made before plaintiff’s attorney acting as notary, the substitution by him of the name of another notary, after attempting to file the affidavit and petition, does not give the action life as against a motion to discharge the attachment.</p>

<p>STREET RAILWAYS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Payment Required of a Traction Company for Strengthening a Viaduct it no Longer Uses.</p> <p>The provision contained in the fifty year franchise granted by the city of Cincinnati to the Cincinnati Street Railway Company, that in the event the Liberty street viaduct should be reinforced by the city so as to make it safe for heavy vehicular traffic or electric cars the street railway company should be required to contribute $7,000 toward the expense thereof, was one of the conditions upon which the granting of the franchise was based, and the obligation thereby imposed upon the street railway company was neither abrogated nor in any manner modified by a subsequent ordinance providing for the removal of the oar line from the viaduct to other streets and to which removal the street railway company consented.</p>

ERROR. The husband of the prosecuting witness, Mrs. Barber, at the time of the filing of the affidavit in this case had abandoned her and had been missing for nearly three years. Bone, the defendant, had occupied the relation of husband to Mrs. Barber for about two years, during which time she became pregnant and was abandoned by him.

<p>CONTRACTS — INJUNCTIONS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>One Selling Window Cleaning Business Including Good Will and Agreeing not to Reengage in Same Business Enjoinable.</p> <p>One selling a window cleaning business, including the good will and with the express agreement that he would not engage in the same line of business in the same city or vicinity for the period of ten years, may be enjoined from starting a new business of the same character within the same territory, but he can not be prevented from earning a livelihood at that class of work.</p>

<p>LANDLORD AND TENANT.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Replacing Foundations and Walls of Leased Building not Repairs.</p> <p>The necessary replacing of foundations and walls of a leased building are not in tbe nature of repairs, and the lessee is entitled to a rebatement of rent for so much of the building as he was obliged to surrender possession of during the time such rebuilding was in progress.</p>

<p>MASTER AND SERVANT — NEGLIGENCE.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Negligence of Driver of Express Company’s Wagon not imputed to Wagon Boy.</p> <p>The negligence of the driver of an express company’s wagon cannot be imputed to the wagon boy, who was to some extent under the direction of the driver, and whose business it was to keep watch that no packages were lost or stolen; nor can it be said that the driver and boy were engaged in a joint enterprise; whether or not they were fellow servants was a question properly left to the jury under the evidence adduced.</p> <p>2. Question of Liability of Joint Tort Feasors Submitted to Jury.</p> <p>Where two parties have been made defendants as joint tort feasors, the question may properly be submitted to the jury whether the injury complained of was due to the concurrent negligence of both, or whether it was caused by the negligence of either.</p> <p>3. Remittitur for Excessive Damages for Loss of Leg of Boy.</p> <p>The court regards a judgment of $10,000 in favor of a fourteen year old boy for the loss of a leg as excessive, and the plaintiff below is given the choice of acceptance of $7,500, or a reversal.</p>

<p>CONTRACTS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Guaranty of Efficiency of Heating System not Met by Substantial Compliance in Design, etc.</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 he met, and this is not done by showing substantial compliance with the specifications in the matter of design, material and workmanship.</p>

<p>JUDICIAL SALES.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Judicial Sale Invalidated by Failure to Give House Number in Advertisement.</p> <p>Failure to give the house number of property which is being advertised for judicial sale is an irregularity which invalidates the sale.</p>

<p>CONDITIONAL SALES.</p> <p>Swing, Jones and Jones, JJ.</p> <p>Attaching Vendor’s Statement to Conditional Sale Contract by Fasteners Sufficiently Placed “Thereon."</p> <p>Section 8568 G. C., relating to conditional sales of property, is sufficiently complied with if the statement required to be placed “thereon” under oath, made by the vendor or his agent, is written upon a separate piece of paper and attached by means of fasteners to the conditional sale contract. National Cash Register Co. v. Closs, 32 O. C. C. 649, denied.</p>

<p>AUTOMOBILES — NEGLIGENCE.</p> <p>Shields, Powell and Houck, J^f.</p> <p>1. Charge to Jury View of Premises where Accident Occurred is Evidence Held Erroneous.</p> <p>To charge a jury that what they saw on a view of the premises was evidence to be considered in reaching- a verdict is erroneous; but in the present case the verdict being sustained by sufficient evidence without regard to the view of the premises the charge is, therefore, not prejudicial.</p> <p>2. Effect of Allegation that Automobile was Being Operated at an Unlawful Rate of Speed.</p> <p>In an action on account of injuries received from being struck by an automobile, it is error to charge the jury to the effect that if the machine was being run at an unlawful rate of speed at the time of the accident the defendant was guilty of negligence per se, but it is an error which does not necessitate a reversal of the judgment where the unlawful rate of speed was alleged in the petition as an affirmative ground of relief.</p>

<p>ERROR — RELEASES.</p> <p>Wildman, Kinkade and Richards, JJ.</p> <p>Finding in Court Below Supporting the Validity of a Release Upheld on Review.</p> <p>A finding in the court below against the claim that the release interposed as a defense was without consideration requires, in the absence of a bill of exceptions containing all the evidence, that the reviewing court assume the payments made prior to the execution of the release, the amount of which are not stated, were sufficient to warrant the judgment finding the release was sustained by sufficient consideration.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Acceptance by City Officials of Assignment of Part of Fund Due City Contractor.</p> <p>An order drawn on a fund due a city contractor, if accepted by the fiscal officers of the city, must be paid out of appropriations made by the council for the payment of the contractor.</p> <p>[Syllabus by the court.]</p>

<p>AUTOMOBILES — NEGLIGENCE</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Driving on Left Side of Standing Street Car at Crossing, Right Side Obstructed.</p> <p>While the negligence of a driver of a motorcycle cannot he imputed to his guest riding on the tandem seat, yet no recovery can he had against the owner of a taxicab, for injuries caused by a collision between the motorcycle and a taxicab at a street intersection where the only negligence of the latter consisted in its being driven around a standing street car on the left side, the right side of the street being obstructed by a voting booth on the corner.</p>

<p>LANDLORD AND TENANT.</p> <p>Jones, Jones an’d Gorman, JJ.</p> <p>Liability of Landlord for Injury to Tenant can not be Based on Covenant to make Repairs.</p> <p>The fact that a landlord has covenanted to make needed repairs on property leased as an entirety does not render him liable either to the lessee or to a sub-lessee on account of injuries received through failure to make such repairs.</p>

<p>MASTER AND SERVANT — NEGLIGENCE.</p> <p>Winch, Meals and Grant, JJ.</p> <p>Painter Injured by Taking Chance on Breaking of Ladder Condemned Held Primarily Negligent.</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.” Pearing 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>INJUNCTION — PARTIES.</p> <p>Shields, Powell and Houck, JJ.</p> <p>Injunction against Payment of Unliquidated and not Due Claims Owners not Being Made Parties Denied.</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>CONTRACTS — DAMAGES—SALES</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Provision for Liquidated Damages must be Treated as a Penalty In Action for Breach of Contract to Purchase Specific Personal Property.</p> <p>In an action under a contract for purchase and sale which has been breached and related to as common and stable an article as flour, a provision for ascertaining the resulting damages by a rule which would give an amount greater in excess of what was actually suffered must be treated as a penalty to be im posed rather than as liquidated damages, and the defendant in such a case should he permitted to show all the circumstances surrounding the making of the contract which would tend to disclose the real loss sustained.</p>

<p>DESCENT AND DISTRIBUTION.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Next of Kin of Decedent, Dying without issue, may be Descendants of Great, Great Grandparents.</p> <p>The next of kin within the sixth clause of Sec. 8574 G. C., of one who died leaving no issue, and whose father and mother are both dead and left no issue surviving her, are the descendants of decedent’s grandparents, great grandparents, or great great grandparents, as far back as it may be necessary to go.</p>

<p>DIVORCE AND ALIMONY.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Property Accumulated by Mutual Efforts and Frugality of Husband, Wife and Children, Equitably Divided on Separation.</p> <p>Property accumulated by the industry, frugality and faithful and exemplary assistance of a wife and seven children as well as the husband will be on review by the court of appeals, equitably divided between the husband and wife on separation after forty years of marital life.</p>

<p>BENEFICIAL ASSOCIATIONS — INSURANCE—WITNESSES.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Attaching Death Benefit Certificate Sued on and Allegation that Insured was in Good Standing Sufficient.</p> <p>Where a petition attaches as an exhibit the' certuicatés sued upon, it is not necessary to set forth the charter of the association which issued the certificate, its constitution and bylaws, or the application for membership or medical examination of the insured, and an allegation that the insured was a member in good standing makes unnecessary any averment that he had conformed to all the rules and regulations of the society.</p> <p>2. Substance of Inquiry not Exact Language of Questions Asked Sufficient on Impeachment of Witness.</p> <p>It is not necessary that the questions asked of an impeaching witness be in the exact words of the questions asked the witness sought to be impeached, if the substance of the inquiry is in each case the same.</p> <p>[Syllabus by the court.]</p>

<p>ELEVATORS — MASTER AND SERVANT.</p> <p>Marvin,) Winch and Henry, JJ.</p> <p>1. Failure to Inspect Elevators not Per Se Negligence.</p> <p>Failure of an employer to inspect an elevator so as to ascertain its condition and safety is not per se a ground of recovery.</p> <p>2. Duty of Servant to Examine Elevator Before Using.</p> <p>The duty of a servant to use ordinary care for his own safety, requires of him more than a passing glance to discover whether or not the appliance he is using is defective.</p> <p>[Syllabus by the court.]</p>

<p>ADMINISTRATORS AND EXECUTORS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>(Winch, J., not sitting.)</p> <p>Claim Against Administrator for Board and Care of Decedent by Member of Family for Whom Services Rendered not Sustained.</p> <p>In an action against an administrator to recover for the board and care of his intestate, brought by a son-in-law in whose family intestate lived, a contract for such board and care is not made out by evidence that a witness saw intestate pay plaintiff $100 with the statement that it was on account, and a statement to another witness that he intended to make his home with plaintiff and had made arrangements for his board and keep while with him.</p> <p>[Syllabus by the court.]</p>

<p>LANDLORD AND TENANT — REMAINDERS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Property Leased by Life Tenant to Remainderman in Consideration of Support, Payable in Money Rental.</p> <p>Where the owner of a life estate leases the property during the term of her life to the remainderman in consideration of his promise to support and maintain her, and such promise has become incapable of literal fulfillment in a manner tolerable to her, the court may decree an annual money rental in lieu of such suppoi't.</p> <p>[Syllabus by the court.]</p>

<p>PURE POOD LAWS.</p> <p>1. Averment that Accused Sold “Half Pint, More or Less” of Adulter, ated Maple Syrup Sufficient.</p> <p>In a prosecution for selling adulterated maple syrup, a charge that the accused sold a package containing "a half pint, more or less,” is sufficient, as the offense consists in selling a package, whether great or small.</p> <p>2. Copy of Label not Necessary In Affidavit In Prosecution for Sale of Adulterated Maple Syrup.</p> <p>It is not necessary in the affidavit charging such offense to set out in full a copy of the label on the package, hut it is sufficient to state that it had on it the word "maple.”</p> <p>3. Proof that Maple Syrup Sold Contains Anything not Obtained by Evaporation of Maple Sap Sustains Conviction.</p> <p>The evidence is sufficient to warrant a conviction for selling adulterated maple syrup if it shows that the substance sold contained anything not produced fay the evaporation of pure sap from the maple tree.</p> <p>[Syllabus fay the court.]</p>

<p>EXEMPTIONS — JUDGMENTS—REVIVOR.</p> <p>Winch, Henry and Giffen, JJ.</p> <p>1. Revivor Dates from Final not Conditional Order.</p> <p>Where a conditional order of revivor is made, but the language of the court in making it is clearly prospective as regards the establishment and effectiveness of the revivor, the revivor will date from the final order and not from the conditional order.</p> <p>2. Lien of Revived Judgment Dates from First Day of Term at Which Made not Term When Asked.</p> <p>Where a motion for revivor is filed during one term of court and the final order granting revivor is made during the succeeding term, the lien of the revived judgment will date from the first day of the second term.</p> <p>3. Judgments not Dormant Until Five Years from Date Judgment Rendered.</p> <p>Judgments do not become dormant until five years from the date they are rendered.</p> <p>4. Homestead Exemption Personal to Cotenant not Available to Purchaser at Partition Sale.</p> <p>The right to claim homestead exemption is a personal matter and where a judgment lien has attached to a cotenant’s interest in a piece of property which is afterward sold upon partition proceedings, the purchaser can not, as against the judgment lien holder, claim the exemption which the cotenant might have asserted.</p> <p>[Syllabus by the court.]</p>

<p>PLEADING — TRIAL.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Default not Set Aside for Amendment of Petition by Erasure of Words Ordered Stricken Out.</p> <p>The amendment of a petition, without notice to defendant, by the erasure of certain words, after the court has ordered them stricken out, is not such an irregularity as to furnish grounds for setting aside a judgment rendered upon such petition after the defendant became in default.</p> <p>2. Default Judgment Set Aside at Subsequent Term by Petition Only.</p> <p>A default judgment alleged to have been fraudulently secured, can not be set aside at a subsequent term by motion; the application must be by petition.</p> <p>3. Jury Unnecessary to Assess Damages by Default in Actions Ex Delicto.</p> <p>Where an action is ex delicto and the defendant is in default of an answer or pleading and the plaintiff appears and submits his case to the court upon the petition and evidence, the court has power to fix the amount of damages without the intervention of a jury.</p> <p>[Syllabus by the, court.]</p>

<p>DRUGS AND DRUGGISTS — WARRANTY.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Implied Warranty by Manufacturer in Sale of Tablets to Druggist that They are not Deleterious to Health.</p> <p>In a sale by the manufacturer to a druggist of tablets represented to be valuable as a specific for nerve troubles and a first-class nerve tonic, there can be no issue made as to whether the tablets were in fact a specific for nerve troubles, but there is an implied warranty that they are not worthless or deleterious to health.</p> <p>[Syllabus by the court.]</p>

<p>CONTRACTS — FRAUDS, STATUTE OF.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Receipt for Portion of Purchase Money Sufficient Writing to Relieve from Operation of Statute of Frauds.</p> <p>A receipt for a sum of money, which recites that it is to apply upon the purchase price of property at a certain street and number is sufficient to take the contract out of the operation of the statute of frauds.</p> <p>[Syllabus by the court.]</p>

<p>EVIDENCE — PHYSICIANS AND SURGEONS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Physician Cannot Testify as to His Directions Being Carried Out.</p> <p>A doctor can not testify that a hypodermic injection was given from the fact that he directed a nurse to give it and was told that it had been given.</p> <p>[Syllabus by the court.]</p>

<p>AIDERS AND ABETTORS — CRIMINAL LAW.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Aider Cannot be Convicted in Same Trial Acquitting Principal.</p> <p>An aider and abettor can not be convicted in the same proceeding and by the same jury which acquits his principal.</p> <p>[Syllabus by the court.]</p>

<p>BANKRUPTCY — INSOLVENT DEBTORS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Collection of Claim Abandoned by Trustee in Bankruptcy.</p> <p>A trustee in bankruptcy may abandon a claim due the bankrupt, but there must be some evidence of such abandonment beyond a possible motive for it, before a creditor of the bankrupt, not mentioned in the schedule, can collect such claim for his own benefit.</p> <p>[Syllabus by the court.]</p>

<p>COURTS — ERROR.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Transcript and Bill of Exceptions from Mayor's Court Authenticated by Official Seal.</p> <p>A transcript and hill of exceptions prepared for the purpose of reviewing a judgment of conviction in a mayor’s court must be authenticated by the official seal of the mayor.</p> <p>[Syllabus by the court.]</p>

<p>NEGLIGENCE — PLEADING.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Doctrine of Last Chance Required to be Pleaded.</p> <p>To authorize the application of the doctrine of last clear chance, an issue involving it must be made by the pleadings.</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Municipality Not Liable for Natural Accumulation of Snow and Ice on Steps and Street.</p> <p>A municipal corporation is not liable for injuries received by slipping upon steps maintained by. it, leading down from a street to a subway under railroad tracks, by reason of the natural accumulation of snow and ice upon the steps in the winter time.</p> <p>[Syllabus by the court.]</p>

<p>BENEFICIAL ASSOCIATIONS — EVIDENCE.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Remittance' Blank, Subordinate Lodge Report, Etc., Evidence of Standing of Member of Beneficial Association.</p> <p>In an action on a benefit certificate where the defense is that the member, was not in good standing at the time of his death, a remittance blank and report sent by the subordinate lodge to the supreme body, reporting such fact, and a card used as part Of the bookkeeping system of the supreme body, also showing the same fact, are competent evidence.</p> <p>2. Refusal to Admit Further Evidence After Both Sides Rest With Assurance of no More Evidence to be Introduced, Discretionary With Court.</p> <p>When both sides have rested and one of the parties has left with the assurance that no more evidence would be introduced by the other side, it is not an abuse of discretion to refuse to receive additional and material evidence thereafter offered by the party giving such assurance.</p> <p>3. Burden on Beneficial Association to Show Failure of Good Standing of Member.</p> <p>A member of a beneficial association being shown to have been in good standing at one time, the presumption is that he continued in good standing until his death, and the burden is upon the association to rebut this presumption by evidence of equal weight or countervailing force.</p> <p>[Syllabus by the court.]</p>

<p>NEQLICENCE — STREET RAILWAYS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Contributory Negligence of Driver in Collision Between Street Car and Vehicle, Question for Jury.</p> <p>It is for the jury to say whether the driver of a vehicle in driving along side of a street car track on a public street, was contribu-torily negligent in driving too close to the track.</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS — STREETS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>One Voluntarily Using Street Having Knowledge of Defect Assumes Risk.</p> <p>One who, with knowledge of a defect or obstruction in a city street, voluntarily assumes the risk and ventures upon the obstruction, can not make the city respond in damages.</p> <p>[Syllabus by the court.]</p>

<p>DAMAGES.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>Verdict not Set Aside as Excessive Notwithstanding Court.</p> <p>A judgment in a personal injury damage case should not he set . aside because of a claim that the verdict is excessive, simply because the reviewing court is of opinion that it would not have awarded so much, no passion or prejudice on the part of the jury being shown.</p>

<p>LIBEL AND SLANDER.</p> <p>(Femedmg, Allreád and Kunkle, of the second district, sitting by designation.)</p> <p>Publication Warning Countryman that Another did “Take” Money from Writer Libelous per se.</p> <p>Publication of the following is libelous per se: "An honest man is M. Tratnik, whom I noticed take some money from me and from somebody else. Therefore countrymen beware of him.” [Syllabus by the court.]</p>

<p>MASTER AND SERVANT — NEGLIGENCE.</p> <p>Employers not Exculpated from Blame by Furnishing Appliances In Ordinary Use.</p> <p>The fact that machines of a certain type are used In the trade without guards for the protection of employes operating them, and that although guards are known to the trade their use is infrequent, does not render it improper to submit to the jury the question of whether in the case under consideration the defendant employer was guilty of negligence in not providing a guard; and where the jury has found that negligence existed, and has fixed reasonable damages which should be paid to the injured employe on account of such negligence, a reviewing court will not disturb the judgment based thereon.</p>

<p>GAS — MUNICIPAL CORPORATIONS.</p> <p>Voorhees, Shields and Powell, JJ..</p> <p>1. Ordinance Fixing Gas Rates to Consumers Accepted by Company Valid.</p> <p>An ordinance fixing the rates which may he charged consumers for gas when accepted by the company constitutes a binding contract which may be enforced by the municipality.</p> <p>2. Jurisdiction of Courts to Settle Differences between Municipality and Gas Company.</p> <p>While a controversy between a municipality and a gas company as to rate to be paid by consumers for gas would fall within the jurisdiction of the public service commission, the courts have jurisdiction to settle differences of that character, whenever a contract has been entered into and so long as the contract exists.</p> <p>3. Petition Alleging Making of Gas Contract and Breach Sufficient.</p> <p>When a petition filed by a municipality alleges the making of such a contract, its breach and a continuance of the breach, with a prayer for injunction and general relief, it states a cause of action.</p> <p>[Syllabus by the court.]</p>

<p>DIVORCE AND ALIMONY.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>Judgment for Alimony Payable in Installments Lien on Husband’s Estate.</p> <p>A money judgment rendered in a divorce and alimony case, payable in installments, made a lien on the husband’s property and with express provision for execution, rendered in favor of the wife, though the divorce is granted to the husband, will be sustained as a division of property between the parties under favor of Sec. 6700 R. S.</p>