Volume 3 — Ohio Nisi Prius Reports, New Series

<p>FAILURE TO APPROPRIATE FUNDS FOR. MUNICIPAL EMPLOYES.</p> <p> Municipalities—Conflict Between Agencies of—Employes of—Can Not Rest Right of Recovery for Services upon Contract—Failure to Appropriate Sufficient Funds to Pay—Wrongful Suspension of Employes—Public Policy. </p> <p>1. An employe of a municipal corporation can not rest bis right to recover for services rendered upon contract; and, if wrongfully suspended, he can not, without taking proper steps to have himself reinstated, compel the municipality to pay him compensation for the period during which he was suspended.</p> <p>2. Where the appeal for reinstatement is made to a civil service commission, the authority of which the director of public safety refuses to recognize, the appeal should be followed by. an applicatioh to a tribunal having jurisdiction to decree and enforce a reinstatement.</p> <p>3. But where the suspension is made on the ground that the municipality has failed to provide funds to pay for the services of a suspended employe, the suspension is not wrongful, and neither a contract of employment nor the civil service act would furnish him any protection against a suspension on that ground.</p>

<p>APPOINTMENT OF JAIL MATRONS.</p> <p> Jail Matrons—Discretions of Frótate Judge as to Appointment of—Not Limited to Personal Fitness—Mandamus. </p> <p>The act of April 8th, 1904 (97 O. L., 86), authorizing the sheriff of any county to appoint not more than three jail matrons, no appointment to be made except on the approval of the probate judge, confers on such probate judge a discretion which, can not, at least in the absence of gross abuse, be controlled or directed by writ ■of mandamus.</p>

<p>EVIDENCE IN SUPPORT OF CLAIM FOR. INJURIES.</p> <p>Physical ancl Moral Health of Plaintiff—Collateral Proof as to—Scope of Cross-Examination—Presumption of Contributory Negligence—• Charge of Court.</p> <p>1. In an action for damages -on account of an injury received, testimony as to the irregular life of the plaintiff, offered for the purpose of showing a probable impairment of health prior to the accident, is inadmissible.</p> <p>2. The rule which permits an attack upon the credibility of a 'witness in a civil case is confined to proving a reputation of want of veracity and does not permit proof directed against the general moral character of the witness.</p> <p>3. A special charge that “if plaintiff by her own testimony in support -of her cause -of action raises a presumption of contributory negligence, the burden rests upon her to remove that presumption,” was properly refused where there was nothing whatever in any of the testimony in the case implying negligence on her part.</p> <p>4. Ordinary care requires no such prescience as would have been necessary on the- part of the plaintiff in the present case to have avoided injury; and in such a case a court would be warranted in instructing the jury that, as a matter -of taiw, there was no contributory negligenc-e.</p> <p>5. A -charge -to -the jury as to facts excusing contributory negligence, although unnecessary, in t)he -opinion -of the court, is not to the prejudice of the defendant if no contributory negligence existed.</p>

<p>HAVING IMPLEMENTS FOR SHOOTING IN THE OPEN AIR ON SUNDAY.</p> <p> Constitutional Law—Protection of Game—Saving Shotgun and Cartridge in the Open Air on Sunday—The Constitutional Right to Bear Arms. </p> <p>The provision found in 97 O. L., 436, which prohibits hunting or shooting, or having in the open air for such purposes any implements for hunting or shooting on any Sunday, is within the power of the state to provide for the protection, preservation and propagation o'f game, and is not in violation of the constitutional ■ guaranty that “the right to keep and bear arms shall not be abridged.”</p>

<p>JURISDICTION TO ORDER. A BEAL LAW ELECTION.</p> <p> Liquor Laws—Jurisdiction of Council—Withdrawal of Names from Petition—Before an Election is Ordered. </p> <p>It is the privilege of electors signing a petition for a Beal Law election to withdraw their names from the petition, either with or without the consent of council, at any time before the election is ordered; and where such withdrawals reduce the number of signatures remaining on the petition to less than the requisite forty per cent, of the qualified voters, jurisdiction of council •to order an election is lost.</p>

<p>INJURY SUFFERED AT RAILWAY CROSSING.</p> <p> Negligence—Policeman Injured at Railway Grossing—While Acting in the line of Duty—Damages—Wages—Side Benefits—Finding of Jury. </p> <p>1. The fact that others differently situated saw a locomotive on a very dark night moving toward! a railroad' crossing without a headlight, does not warrant a reviewing court in holding that a policeman, who had stepped! upon the crossing in the line of duty, and who did not see the locomotive, was guilty -of contributory negligence as a matter of law.</p> <p>2. Damages for an injury due to the fault of another can not he reduced by the amount of sick benefits paid to the one sio injured; blit where the one injured, who has sued for compensation merely and not for exemplary damages, elect® to return the sick benefits in order to receive in place 'thereof full wages for the time he is disabled, he is net entitled to receive again the equivalent of such wages at the hands of a jury.</p>

<p>MARRIAGE CONTRACTS WHICH BAR. A WIDOW FROM DOWER.</p> <p> Marriage .Contract—When'a Bar to Dower—Facts which must be Pleaded—Pi-oof. </p> <p>In order to' bar a widow of dower by reason of a marriage contract or anti-nuptial agreement/ facts should be pleaded and proved showing that the terms and provisions of the contract were fair, reasonable and just to the wife under, all the circumstances existing at .the time the agreement was entered into.</p>

<p>SPECIAL WARRANTY AGAINST ACTS OF GRANTOR.</p> <p> Deed—Special Warranty Against Acts of Grantor—Gan Not Be Enlarged—Unpaid Taxes not Within Such a Covenant. </p> <p>1. A covenant of special warranty against the acts of the grantor contained in a deed, conveying only the “right, title and interest” of the grantor, can not enlarge it, but is limited to the estate granted.</p> <p>2. Taxes which were unpaid by the grantor, and which were a lien upon the property at the time of the purchase, can not be recovered und'er such a covenant on the ground of a breach thereof.</p>

<p>ABATEMENT OF ACTION THROUGH INCOMPLETE APPOINTMENT OF ADM1NISTPATOR..</p> <p> Administrator—Failure to Give Bond—Action for Wrongful Death Rendered Nugatory—Authority of Administrator Does not Relate Back—And the Bar of the Statute Runs _Against the Beneficiaries —Jurisdiction—Remedy. </p> <p>1. The limitation of two years is an essential condition of the right of action growing out of a wrongful death, and begins to run at once against the beneficiaries, and once beginning, it runs on to completion withput interruption.</p> <p>2. ' Where the appointment of an administrator of a decedent, who came to his death through the negligent act of another, is not completed until the cause has abated, an action brought before the cause abated, and before'the appointment of the administrator was completed, can no,t he maintained.</p>

<p>FAILURE TO DELIVER POSSESSION OF PREMISES.</p> <p>Landlord and Tenant—Failure to Deliver Possession of Premises— Avoids the Lease—Acceptance of Part of the Premises—Not a Waiver of Right to Abandon Lease.</p> <p>1. There is an implied covenant on the part of a lessor to deliver the premises to the lessee at the moment he is entitled to take possession, and a breach of such covenant releases the lessee from the obligations of the lease.</p> <p>2. Entrance by the lessee upon a part of the premises and his occupancy thereof for several month® without objection does noit amount to a waiver of the failure of the lessor to place him in possession of the remainder of the premises.</p>

<p>TENURE OF OFFICE OF SECRETARY OF WATER WORKS TRUSTEES.</p> <p> Office and Officer—Secretary of Water Works Trustees—Tenure of Office Of—Removal of By Abolishment of the Office of Trustees. </p> <p>The duties of a secretary of water works trustees not being prescribed by statute, it follows that the position is not an office within the legal meaning of the word, and one appointed to that position for a fixed -term, but discharged before the expiration thereof, can not enforce a claim for salary for the portion of the term he was not allowed to serve.</p>

<p>ORDER TO PRODUCE BOOKS AND PAPERS FOR INVESTIGATION BY COUNCIL.</p> <p>Prosecution of Councilmen—Conduct Constituting Misconduct in Office—Statxite Under Which Prosecution Should Proceed—Section 225 of the Municipal Code not Applicable—Compelling the Production of Books and Papers—Incriminating Evidence—Privilege of Witness—Bribery—Misfeasance.</p> <p>1. A charge that two eouncilmen have accepted bribes, and that fifteen others are controlled in their voting by a certain party who contributed to thie individual campaign funds of said councilmen while they were candidates for office, constitutes a charge of misconduct in office.</p> <p>2. Inasmuch as the Legislature has made complete provision for the trial of suoh charges in a proper tribunal, and in view of the obvious objections to the trial of councilmen before their fellow members, and the failure of Section 225 of the Municipal Code to clearly include councilmen among the officers for the trial of whom provision is therein made, it must be held that Section 225 does not include councilmen among those against whom charges may be preferred.</p> <p>3. The production of books and papers can not be compelled, where it is manifest to the court that if they would tend in any way to be useful in the prosecution of the case in hand, they must Lind to subject the party to whom they belong to penalties an/ punishment.</p>

<p>AUTHORITY OF DIRECTOR. OF CHARITY AND CORRECTION TO DISCHARGE PRISONER.</p> <p>Release of Prisoner from Workhouse—Under Section. 1547-67—Regula-tions Necessary to Make Valid—Approval of Mayor—Limitations on Authority of a Director of Charities and Correction—Invalid Release—Impinging on Pardoning Power and Judicial ■Power— State and County Prisoners—Badeas Corpus.</p> <p>1. The director -of charities and correction under the “Cleveland Federal plan” is clothed with power to discharge a prisoner from the workhouse -only where the question involved in his discharge is •the propriety of retaining him in confinement—that is, a question of humanity, as distinguished from' one of grace, which belongs to the pardoning power; or a question of the propriety of retaining him in custody as distinguished from the propriety of committing him to custody, or as to whether his sentence is properly proportioned to his guilt.</p> <p>2. Such discharge can only be made upon the approval of the mayor, and under such regulations as may be provided by law or ordinance, and in the absence of a regulating statute or ordinance the discharge-is invalid.</p> <p>3. But the failure of the mayor to endorse his approval of the discharge may be cured by a subsequent endorsement thereof, provided the proceedings are otherwise regular.</p> <p>4. It is not probable that the Legislature intended to grant power to a director of charities and correction to interfere at all with sentences imposed by the court of common pleas in county or state cases, as distinguished from sentences imposed by the municipal court.</p> <p>5. The release of a prisoner under a mistake as to the authority of the officer ordering his release is equivalent to a negligent escape, and a prisoner so released may be retaken and returned to custody.</p>

<p>TAXATION OF PARTNERSHIP PROPERTY.</p> <p> Partnership—Association in Business and Property Interests Constituting—Taxation of Partnership Property—Injunction Against Separate Listing of Individual Interest Therein. </p> <p>Association in a joint enterprise under conditions like those presented at bar constitutes a partnership, and the securities owned are properly listed for taxation in the township where the managing partner resides; and an attempt to place a part thereof on the tax duplicate of the township wherein the other partner resides may be enjoined.</p>

<p>LIABILITY FOR. INJURY TO A GUEST AT A SUMMER RESORT.</p> <p> Negligence—At a Summer Resort—Child Killed on Pony Track—Operated by an Independent Contractor—Company Controlling the Resort Liable—Pleading—Charge of Court—Evidence of Distressing Injuries Competent—But Must not Influence Amount of Damages Awarded. </p> <p>1. The operation of a pony track at a public resort imposes upon, the .owner of the resor.t a duty to those who visit the place to see to jjt that the work is carefully performed, and this duty can not be shifted or delegated to a licensee 'or independent contractor.</p> <p>2. In a suit for damages on account of the death of a boy, who was thrown from the back of a pony and dragged around' the ring at such a resort, the allegation that the animal given to the boy was vicious and that the servants operating the track were careless . . or negligent, sufficiently charges that ordinary care was. not exercised.</p> <p>3. Under the Ohio law, the personal representative of a deceased person, who has brought an action for the wrongful death, is a merely nominal party, and a general denial does not traverse his representative capacity. Objection to his bringing the suit must be taken, by demurrer, as for want of legal capacity to sue, or by special denial.</p> <p>4. The danger that a jury may be prejudiced by proof of distressing injuries does deprive a plaintiff of the besit proof in support of his allegations, and where in the charge to the jury with reference to the measure of damages, the court distinctly instructs them that recovery can only be had for the pecuniary injury to the next of kin, and that no damages can be awarded for bereavement, mental suffering or as a solace, the previous exhibition of corporeal injuries, or relation of fehle distressing character of the injuries causing death, does' not constitute prejudicial error.</p>

<p>ACCOUNTING AND RECOVERY UPON THE BOND OF AN ABSENT GUARDIAN.</p> <p>Guardian—Becomes a Non-Resident After Approval of Account—Suit for an Accounting on the Bond—Jurisdiction—Sections 6289 and 5058.</p> <p>Where a guardian becomes a non-resident after the approval of his account in the probate court, his successor or wards may go into the common pleas-, and. under allegations of fraud or mistake in the account may summon the sureties on the bond and proceed with the accounting, and if something is found to be still due from the former -guardian, may proceed upon the bond in that action.</p>

<p>REPORTS OF ACCIDENTS MADE BY CONDUCTORS AND MOTORMEN.</p> <p>Notary Public—Contempt Proceedings Against Witness for Refusal to Answer Questions By—Do not Lie Where Testimony is Hearsay— Reports by Conductors and Motormen of Accidents on the Line— Not Privileged, When—And Must be Produced Under a Subpoena . Duces Tecum.</p> <p>1. A witness will be discharged from custody when arrested during the taking of his deposition for refusing to answer questions which call for hearsay testimony.</p> <p>2. In an action against a traction company because of an accident on its line, reports of the accident made by the conductor and motorman to the claim agent according to a rule requiring such reports in all cases whether there are grounds for action or not, are not privileged, and must be produced by the claim agent under a subpoena dttces tecum from a notary public who is taking the former’s deposition.</p>

<p>FEES COLLECTED BY MAYORS.</p> <p>Fees—Collected from Defendants Convicted before Mayors—May be Collected by the Mayor, When—Are Payable into the City Treasury—Can be Recovered from the Mayor—Section 1843.</p> <p>1. Mayors are not authorized to collect fees from defendants, in cases of conviction for the violation of ordinances, unless the council shall have first fixed such fees by ordinance, as pre- ' scribed in Section 1843 of the Revised Statutes.</p> <p>2. Where a city has failed to fix the fees, the city can not recover from the mayor fees by him collected.</p> <p>3. On the passage of the ordinance by the city, fixing the fees of the mayor, as provided in Section 1843, then all fees collected by the mayor are payable into the. city treasury, and upon failure of the mayor to so pay, an action can be maintained by the city therefor.</p>

<p>HOMESTEAD AND FAMILY EXEMPTION.</p> <p> Attachment for Necessaries—Homestead Exemption—Special Exemption to One with a Family—Stepchild not a Daughter—What Constitutes a Family. </p> <p>1. There can be no doubt that the services of a physician constitute “necessaries” under the law.</p> <p>2. A stepchild who has not been declared by the probate court, under Sections 3137a and 3139, to be to all legal intents and purposes the child if its stepfather is not the child of such stepfather within the meaning of the .act providing for exemption in lieu of 'homestead.</p> <p>3. A widower, who is living with his own mother, can not be said to be a man of family, and entitled' to the special exemption allowed to one with a family, because he 'contributes something toward the support of a stepchild, who 'has never been formally declared to be his own child, and who lives with her maternal grandmother.</p>

<p>OCCUPATION OF STREETS BY STEAM RAILROAD TRACKS.</p> <p> Abutting Oioner—Rights of with Reference to Occupation of Street by Steam Railroad Track—City Ownership of Railroad—Combination of Lessee Line with Other Lines—Poioer of Board of Public Service—To Authorize Occupation of Streets—Tracks Unlawfully in the Street a Public Nuisance. </p> <p>1. Mere delay in the travel -suffered by a property owner in common with the general public occasioned by the construction of a steam railroad track in the street, but not on that part of the street opposite his property, there being an outlet from said property along the street without crossing tha track, is damnum absque injuria. The Robert Mitchell Furniture Co. v. C., C., C. & St. L. R. R. Co. et al, 7 N. P., 639.</p> <p>2. Where a steam railroad track is constructed in a street u-pon which property abuts, but not in that part of the street opposite' the lot lines of the property produced, and it can nevertheless be shown that such track is an interference with the access to said property—whether such facts are sufficient to maintain an action. —Quaere?</p> <p>3. Whether the statement in- Robert Mitchell Furniture Co. v. R. R. Co., 7 N. P., 639, that Section 3283 relates only to damages not covered by the Constitution.—Quaere?</p> <p>4. The operation by a lessee company of the Southern Railroad (owned by the city of Cincinnati in connection with other lines which such lessee company may own or control, is in no sense a combination of the city with such other lines in violation of Article VI, Section 6 of the Constitution of Ohio; and the lessee company, by reason of the fact that its lessor is the -city of Cincinnati is in no wise limited as to the character of business it may carry on in the operation of the leased line or in the connections it may make with other roads.</p> <p>5. The board' of public service is not authorized by the act of April 18th, 1878 (75 V. 115, Section 8324; Smith & Benedict, Section 5), to grant to the lessee company the right to occupy the streets of the city 'of Cincinnati.</p> <p>6. A steam railroad unlawfully in the streets is a public nuisance, and may be enjoined by one who is specially damaged thereby.</p>

<p>VERIFICATION OF PETITION AND SUMMONS UNDER THE BRANNOCK LAW.</p> <p> Liquor Laws—Contest of Election—Under Brannock Law—Verification of Petition—Summons—Appearance. </p> <p>1. It is not necessary that a petition for the contest of an election under the Brannock Law should be signed by the petitioner; and the requirement as to verification is complied with, where the petition is sworn to by the petitioner before an officer duly au- • thorized to administer the oath.</p> <p>2. But where no summons is issued within twenty days after the election, directed to the mayor of the corporation, notifying him of the filing 'of the petition, there is a failure to comply with the statute, and no action is begun, and the petition, together with motions to dismiss the same, filed by duly qualified electors of the district, should be stricken from the files.</p>

<p>STREET ASSESSMENTS AGAINST SCHOOL PROPERTY.</p> <p>Street—Assessment for Improvement of—Against School Property— Uncertain Effect of Division of Funds—Under New School Code— Petition of School Board for Improvement—Lien of Assessment on Property Sojd to School Board.</p> <p>1. The separation of school funds under the new school code, making it possible to- distinguish the trust from the contingent fund, will not have the effect of rendering valid an assessment against school property for a street improvement, where the levy was made prior to the passage of the school code, whatever may bo its effect as to- such levies made subsequent thereto.</p> <p>2. School property is not rendered liable to assessment for a street improvement by reason of the fact that with knowledge that the property was not "liable to assessment the school board petitioned for the improvement.</p> <p>3. B’ut where the lien of an assessment for a street improvement has already attached, it will not he defeated by the subsequent purchase of the property by a school board.</p>

<p>EFFECT OF ADVANCEMENTS UPON INTEREST OF HEIRS |N REAL ESTATE.</p> <p> Advancements—Nature of—Not a Loan or Debt—A.nd Create no Liability—Except on Distribution—Quit-Claim of Interest of Heir in Real Estate—Carries Rights Growing Out of Unequal Advancements. </p> <p>A quit-claim deed, covering all tke interest of an heir in the real estate of. his ancestor, transfers to the grantee not only the undivided interest of the heir in the real estate, but also such additional interest as he may have by reason of advancements made to other heirs.</p>

<p>INSUFFICIENT DESCRIPTION OF A “ RESIDENCE DISTRICT.”</p> <p> Liquor Laws—Petition Jurisdictional—Under Either the Brannock or the Beal Law—Petition for an Election in a Gity—-Not Descriptive of a “Residence District”—And not Sufficient Under Brannock Law —Procedure for Contest of Election. </p> <p>1. Under the Brannock Daw a judge of the probate court is clothed with final jurisdiction in a proceeding to. contest an election, without the intervention of freeholders as provided by the law for the contest of an election of a justice of the peace.</p> <p>2. A petition for an election to determine whether the sale of intoxicating liquors as a beverage shall be sold within certain prescribed territory is fundamental and jurisdictional, and must substantially comply with the requirements of the law under which the election is to be held.</p> <p>3. A petition addressed to the mayor (in accordance with a provision of the Brannock and not of the Beal Daw), wherein more than forty per cent, of the qualified voters of the city of N “hereby request you to order an election to determine whether the sale of intoxicating liquor as a beverage shall be prohibited in said city,” is fatally defective in that it does not describe any residence district in the city of N nor describe the entire city as being a residence district or residence corporation.</p>

<p>COVENANTS AGAINST LIQUOR. SELLING.</p> <p>Covenant—Against Bale of Intoxicating Liquor—Runs with the Land— May be Enforced 'by Injunction, Unless—Encouraging Breach of Covenant—Worlcs Estoppel.</p> <p>1. A covenant in a quit-claim deed against tibe manufacture or sale of intoxicating liquors, mad© by a grantee, bis heirs and assigns, in favor of th.e grantor, his heirs and assigns, is a covenant running with the land, and is binding on subsequent grantees whether inserted in their deeds or not; and the fact that the original grantor was a tenant in common with his grantee, and the owner of only a one-fourth interest in the property, is immaterial.</p> <p>2. Where it appears that th© covenant as to the sale of intoxicating liquor was inserted for the benefit of the general community and adjacent lot owners, it may be enforced by any one for the sole and exclusive benefit of himself, unless, as in the case at bar, his own conduct and laches have deprived him of the right to demand such enforcement.</p>

<p>EQUITABLE FORECLOSURE IN PARTITION PROCEEDINGS.</p> <p> Mortgage—Securing Various Notes—Upon One of Which There is a Surety—Equitable Foreclosure in Partition Proceedings—Not Bes Judicata, When—Application of Proceeds—Notice to Surety. </p> <p>1. Where various notes are secured by mortgage, and equitable foreclosure is sought in a partition proceeding to which both the mortgagor and mortgagee are parties, it can not be maintained that . a particular note secured by the mortgage, but upon which there is a surety, was merged in the finding in the suit in partition to which the surety was not a party.</p> <p>2. Neither can it be maintained that the fund realized on the mortgage was applied in whole or in part to this particular note, inasmuch as under the common law rule, which prevails in Ohio, the fund is applied in accordance with equitable principles if it be. applied in accordance with the intention of the parties, whether the payment be made voluntary or by operation of law.</p> <p>3. The requirement of Section 5833, as to notice by a surety to the principal debtor, must be strictly complied with, and where the principal debtor is a woman notice to her husband does not satisfy the statute.</p> <p>4. In a suit against the principal debtor and the surety, it is not error to permit the introduction of parol testimony on the part .of the mortgagor, to explain the words “unless otherwise satisfied” found in the mortgage.</p>

<p>RIGHTS OF SUB-CONTRACTORS AFTER. DEATH OF PRINCIPAL CONTRACTOR.)</p> <p> Contractor—Death of Principal Contractor—Rights of Sub-Contractors Thereafter—Claims of Other Creditors Superior, When—Liens for Labor and Material. </p> <p>1. The rights of sub-contractors are fixed and determined at the death of the head contractor, unless his personal representatives undertake to complete the work.</p> <p>2. A .fund due the head contractor at the time of his death, but remaining in the possession of the owner of the property, is subject to the lien of the sub-contractor for labor and material furnished prior to the death of the head contractor, and the perfecting of such lien can not be prevented by the personal representatives of the deceased head contractor.</p> <p>3. Creditors of a head contractor are entitled to priority over a sub-contractor, where they secure their claims prior to the giving of notice by the sub-contractor to the owner.</p>

<p>ALLOWANCES TO TAX INQUISITORS.</p> <p>Taxation—Omitted Returns—Appointment of Inquisitors for Discovery of—Unconstitutional Sections—The Limitation in Section 1343-4 Should he Disregarded—Tax Inquisitor an Employe—Valid and Invalid Features—Of Inquisitorial Contracts—Percentages Disallowed on Penalties—Discoveries of Omitted Property from Prohate Court Inventories—Real Estate—Exclusive Privileges.</p> <p>1. Sections 1343ffl and 13436, providing for the employment in certain counties of persons to discover property omitted from the tax duplicate and providing penalties for the omission thereof, are unconstitutional for the lack of uniformity of operation.</p> <p>2. The limitation found in Section 1343-4, upon the operation of Sections 1343-1, 1343-2 and 1343-3, should be disregarded and these statutes upheld.</p> <p>3. The duties of a tax inquisitor are not those of a public officer but of an employe, and the provision, for his appointment rather than election is therefore not open to constitutional objection.</p> <p>4. Contracts entered into by county officers with tax inquisitors are not illegal because they stipulate for the payment of a percentage on real estate which the inquisitor causes to be returned for taxation; or because of a severable provision for the payment of a percentage to the inquisitor on penalties; or because they empower the inquisitor to compel the auditor to bold examinations of owners of omitted property at his request and in his presence; or because of the clothing of an inquisitor with an exclusive privilege; or because the contract possesses a prospective operation; or because the policy of making such contracts, or of paying so large a percentage for the work performed, does not meet with the full approval of the courts; or because of failure to enter the contracts in the minutes of the county commissioners as provided in Section 878; or because an inquisitor who gave bond in aoordance with the statute and the contract, failed to sign the contract; or because there is no finding on the commissioners’ record that they had reason to believe at the time the contract wag made that there was property within, the county which had been improperly omitted from taxation.</p> <p>5. A tax inquisitor is not entitled to a percentage on the fifty per cent, penalty added hy law, or to any percentage on penalties levied and collected as such, and where there is a provision in the contract for the payment of a percentage on penalties, it will he disallowed.</p> <p>6. An inquisitor is not excluded from furnishing evidence of omitted property to he listed in the name of a decedent, and may discover the existence of such property from inventories filed in the probate court, but his compensation will he limited to a percentage on taxes collected on property which should have been returned in-the lifetime of the decedent.</p> <p>7. An auditor is not hound to assume that the returns for taxation as made are false, and the inquisitor in this case is entitled to a percentage on taxes collected! on additions made to the returns for preceding years of insurance companies.</p>

<p>BR.ANNOCK LAW PETITION A PUBLIC DOCUMENT.</p> <p> Liquor Laws—Petition for an Election^-Bight of Electors to Inspect —Mandatory Injunction. </p> <p>1. A petition under the Brannock Law (97 O. L., 87) for a residence district election in a municipal corporation, presented .to and filed by tbe mayor of sucb corporation, is a public document and open to inspection by anyone who is a citizen, elector and petitioner in said local option district.</p> <p>2. Mandatory injunction is an appropriate remedy to ’ enforce such right of inspection.</p>

<p>DEFENSE OF MALPRACTICE SUITS AGAINST PHYSICIANS.</p> <p> Corporations—Inhibition of Section 3235—Relating to the Doing of a Professional Business—Defense of Physicians against Malpractice Suits—Is a Professional but not an Insurance Business—Interstate Comity—Does not Extend to Foreign Corporations Obnoxious to Ohio Latos. </p> <p>1. Tie business of defending physicians against civil suits for malpractice, conducted on the plan proposed in the suit at bar, is not an insurance business, and a corporation organized for that purpose can not be refused a certificate by the secretary of state on that ground.</p> <p>2. But such a business is clearly a professional business, and therefore falls within the inhibition of Section 3235 forbidding the carrying on of a professional business by a corporation.</p> <p>3. The rule of comity between states does not require that a corporation organized under the laws of another state shall be admitted to business in this state when such a business is obnoxious' to Ohio laws.</p>

<p>BREACH OF DUTY TO EMPLOYE NOT GROWING OUT OF THE EMPLOYMENT.</p> <p> Master and Servant—Servant a Minor—Siclcness of Servant—Threat of Discharge with Fatal Consequences—Apprenticeship—Negligence. </p> <p>The refusal of a master to permit his employe, a lad of fourteen years, who had! become suddenly ill, to leave his work for medical as-distance except at the risk of discharge, is not a breach of duty-growing out of the employment, which would make the master liable for so doing, unless a contract of apprenticeship exists.</p>

<p>CAPACITY TO SUE.</p> <p> Interest—Collected by Tillage Treasurer—On Tillage Deposits—Action for Recovery of—Capacity to Sue—Question of, may be Raised by Demurrer—But Must be Specially Assigned. </p> <p>1. Where one sues on behalf of a village to recover from the village treasurer interest paid to him by banks in which the village funds have been on deposit, the question of his capacity to sue can be ■raised by special demurrer.</p> <p>2. In the absence of a statute specifically authorizing a private individual to sue on behalf of himself and the village for the recovery of funds alleged to belong to the village, he is without capacity to maintain the action, but it must be brought by council or whatever officer is charged with the duty of caring for the public funds or of bringing an action to protect them.</p>

<p>ATTACHMENT OF MONEY ON DEPOSIT.</p> <p> Attachment—Money Deposited in Lieu of Bail—Not Subject to Attachment, When—Attaching Creditor in No Better Position than the Debtor—Bad Answer Good Enough for a Bad Petition—Pleading. </p> <p>1. Where money voluntarily placed on deposit as bail under a charge in the police court, is attached for debt, the petition is defective if it fails to allege that the defendant was the debtor of the plaintiff at the time the money was deposited, or that the deposit was made in fraud of creditors.</p> <p>2. An attaching creditor stands in no better position with reference to the fund attached than does his debtor, and where 'on the day the attachment was levied the debtor was not in a position to enforce a repayment of the money, the attaching creditor does not obtain a valid lien by tihie attachment.</p>

<p>RIGHTS OF WIDOW IN MORTGAGED REAL ESTATE OF HUSBAND.</p> <p>Widow■—Dotcer Interest of Computed, How—Where there are Mortgage Incumbrances—And Proceeds of Sale exceed the Mortgages— Widow not Subrogated, When—To Mortgage Lien Discharged in Part with Her Separate Means.</p> <p>1. Where real estate is sold by the personal representative of a decedent, to pay the debts of decedent, which real estate is incumbered by a purchase money mortgage given by the decedent in his lifetime, and by a purchase money mortgage assumed by the decedent as a part of the purchase price of the land, and such land is sold for a sum more than the amount of both of said mortgages, the widow is entitled' to have her dower interest in said land computed from and based on the entire proceeds of the sale, payable out of the residue of the proceeds, after satisfying said mortgages.</p> <p>2. Where a widow furnished her husband money which was used by him in part payment of a purchase money note, executed by the husband secured by mortgage on real estate owned by him, which note and mortgage were not signed by the widow, in a proceeding brought by the personal representatives of the husband to sell said land the widow can not be subrogated to the lien and security of the mortgage indebtedness in so far as the money so advanced by her may have been used 'in paying said mortgage, in the absence of evidence that the widow gave or loaned the money to her husband, intending or expecting it to be paid on the mortgage debt.</p>

<p>OWNERSHIP OF PROPERTY PETITIONING FOR. STREET IMPROVEMENT.</p> <p> Street Improvements—Jurisdiction of Council to Order—Nature of Title in Petitioners—Necessary to Give Validity to Petition—Petitioner Must Own the Property at Time of Passage of Ordinance —Signature of Dowager Does Not—But of Owner of Life Estate Does—Bind the Property—Right of Purchaser to Defend Against Assessment—Benefits—Injury to Street from Heavy Traffic. </p> <p>1. Under 90 O. L., 156, the jurisdiction of council to order a street improvement was based upon the petition therefor of one-half or ' more of the frqntage.</p> <p>2. To render a signature to the petition effective it must be that of ¡the owner of the property at the time of the passage of the ordinance ordering the improvement.</p> <p>3. Where an owner, who has signed the petition, conveys the property before the passage of the ordinance, and subsequently thereto receives the title back, he is precluded from resisting the assessment, but other owners who did not sign the petition are not bound by his signature.</p> <p>4. The owner of an unassigned dower in real estate can not bind the property by her signature as against the tenants in common of the land.</p> <p>5. But the owner of a life estate, who joins in a petition for the improvement of the street upon which the property is situated, binds the property for the payment of the assessment.</p> <p>6. A grantee who purchased property after the lien of a street assessment had attached, and whose deed recites that he assumed to pay the street assessment as a part of the consideration for the land, can not defend against the assessment where his grantor might have successfully done so, and this is true where a subsequent deed, with a recital reserving to the grantee the right to contest the assessment, was executed as in this case.</p> <p>7. A street assessment can not be successfully resisted on the ground of lack of benefits, where it appears that the holes which have appeared in the street since the improvement was made, and where it appears that the traffic thereon is too heavy for the character of improvement made.</p>

<p>UNDUE INFLUENCE OVER. A SISTER.</p> <p>Contract—By a Sister to Convey Property—Undue Influence in Securing—Family Agreements—Burden of Proof—Thfat the Transaction was Righteous—Deed—Delivery of-—Evidence—Fraud— Gifts.</p> <p>1. In an action by a sister .to set aside for want of consideration, fraud and breach of confidential relations, a paper writing wherein she agrees to convey certain property to her brother, the burden of proof is upon her brother to show that the transaction was fair and equitable, and was executed with full understanding.</p> <p>2. Inasmuch as it must be assumed that the father of the parties intended to do just what he did do when, with deliberation and in legal form, he conveyed the property to the daughter, it follows that if the daughter was subsequently induced to sign an agreement to convey the property to her brother under representations that the conveyance to her was a departure from an understood family agreement as to the distribution to be made of their father’s property, she was unduly influenced and the agreement should be set aside.</p> <p>3. The mere handing by the grantor to the grantee of a deed properly executed does not constitute delivery thereof, in the sense that title is passed eo instanti, unless the grantee is in a position to legally accept delivery of the deed at the time it comes into his manual possession.</p>

<p>DELEGATED POWER. TO INSANE ASYLUM TRUSTEES.</p> <p> ■State Lands—Right of Railway to Cross—Contract Therefor—Power to Malte Delegated to Asylum Trustees—Once Exercised Becomes Functus Officio as to Modifying Conditions—Riparian Rights. </p> <p>The power delegated by the General Assembly to the board of trustees of the Central Insane Asylum, to consent to a grant of a right of way for a railroad oyer certain land belonging to the state of Ohio, was exhausted when exercised, and as to any subsequent consent by this board to modifying conditions of the grant the power thus delegated is functus officio.</p>

<p>VIOLATION OF LIQUOR LAWS —PROOF OF A SINGLE OFFENSE.</p> <p>Liquor Laxos— Unlawfully Keeping a Place — Where Intoxicating Liquors are Sold at Retail—Proof of a Single Offense—Change of Venue from Mayor's Court—Section 6529 not Applicable—Affidavit not Bad fox- Duplicity, When—Per Diem Paid to Witnesses for Prosecution—Proper Sxibject for Cross-Examination—Election Betxoeexi Charges.-</p> <p>1. In a prosecution for unlawfully keeping- a place where intoxicating liquors are sold at retail, it is not error for a mayor before whom the case is brought to overrule a motion for change of venue, made on the ground that he is a material witness in the case, where it does not affirmatively appear from the record that there was any authorized officer or person to whom the case could ha?e been legally sent for trial.</p> <p>2. An affidavit is not bad for duplicity in such a case, because it charges several distinct offenses of the same kind requiring punishments of like nature; and the discretion of the trial court in overruling a motion to require the prosecution to elect upon which count it will proceed will not be interfered with, unless it appears that it was- exercised to the manifest injury of the defendant.</p> <p>3. Proof of a singl-e sale is sufficient to. establish the charge that the defendant did unlawfully keep a place where intoxicating liquors were sold.</p> <p>4. The per diem which the prosecution has agreed to pay its witnesses, in addition to the fees which they will receive under the statutes, is a proper subject of cross-examination; but where the fact of an agreement t.o pay a per diem and the amount thereof is subsequently disclosed by the testimony of other witnesses, it is not likely that injustice resulted from the sustaining of an objection to that line of examination, and a reversal of the judgment will not be granted on that ground.</p>

<p>CONDITIONS PRECEDENT TO A SUIT ON A FIRE INSURANCE POLICY.</p> <p> Fire Insurance—Conditions Precedent and Subsequent—Burden of Proof—■Waiver of Conditions—Notice to Submit to an Examination—Pleading—Charge of Court. </p> <p>1. Where the right to examine the insured under oath is provided for in a policy of fire insurance, compliance 'therewith constitutes a condition precedent to an action on the policy, and where the answer denies compliance in this respect the burden of proof is upon the plaintiff to show that the condition of the policy as to submission to an examination under oath was complied with.</p> <p>2. A plaintiff who has alleged that he “has duly kept, observed and performed all the requirements and conditions contained in said policy,” is not in a position to avail himself of a waiver of the provision as to an examination under oath, even if the conduct of the company had been such as to constitute a waiver.</p> <p>3. Notice of the intention of the company to have an examination is sufficient, when it states the time and place of the examination and the name -of the person whoi is to conduct it.</p>

<p>Thompson, Glitsch & Cinninger cited- in support of motion to vacate default-judgment taken before last answer day:</p> <p>Proceedings of justices of the peace when a judgment is appealed from—Section 6585, Revised Statutes.</p> <p>Rule day for filing petition—Section 6598, Revised Statutes.</p> <p>Rule day for pleading in court of common pleas—Section 5097, Revised Statutes.</p> <p>When and how common pleas or circuit judges may vacate or modify judgments or orders' after term—Section 5354, Revised Statutes, third subdivision.</p> <p>Mode of proceeding in certain cases—Section 5357, Revised Statutes. ■</p> <p>Limitation of proceedings—Corry v. Campbell, 34 O. S., 204.</p> <p>Default judgment before expiration of day named in summons—Williamson v. Nicklin et al, 34 O. S., 123; Mimmel v. Pratt, 40 O. S., 344.</p> <p>Notice to adverse party waived, when—Elliott v. Plattor, 43 O. S., 198; Braden v. Hoffman, 46 O. S., 639.</p> <p>Entering default judgment when demurrer is on file—Follett v. Alexander el al, 58 O. S., 202.</p> <p>Grounds for vacating judgment to be first tried—Section 5359, Revised Statutes; Follett v. Alexander et al, 58 O. S., 202.</p> <p>The court should not vacate a judgment absolutely, until— Braden v. Hoffman, 46 O. S., 639, at 642.</p> <p>Section 5360 construed—40 O. S., 639, at 642; Frazier v. Williams et al, 24 O. S., 625; Weston v. Paine, 25 O. S., 340; 34 O. S., 143.</p> <p>When enforcement of judgment may be suspended—Section 5361, Revised Statutes.</p>

<p>TELEPHONE MAINS IN THE STREET AN ADDITIONAL BURDEN.</p> <p> Telephones—Laying of Mains in the Street—Imposes an Additional Servitude—Scope of the Original Dedication—Easement of Abutting Lot Owners—Their Right to the Subsoil—Private Uses as Distinguished from Street Uses. </p> <p>1. The dedication of a street does not deprive an abutting lot owner of any right therein not inconsistent with the paramount right of the municipality to hold and use the ground so dedicated in trust for street purposes.</p> <p>2. Among tha rights retained by the abutting lot owner in that portion of his lot dedicated for street purposes is the right to the ■subsoil thereof, except as. it may be needed for street purposes; and the use of such subsoil for the purpose of constructing conduits for the conveyance of telephonic communication is not embraced in the original dedication of the .street, and imposes a new servitude.</p>

<p>MUNICIPALITY NOT A TRUSTEE FOR. THE PROFIT ARISING FROM THE REFUNDING OF BONDS.</p> <p> Municipality—Not a Trustee for Abutting Owners—In Refunding Street Improvement Bonds'—Owner of Bonds—'Without Recourse Against Abutting Property Owners. </p> <p>A municipality, in advancing the cost of a street improvement, assessed against the abutting property, does not act exclusively as trustee for the abutting owners, and is not bound to account to the abutting owners for the profit arising from a subsequent refunding at a lower rate of interest of the bonds which produced the fund from which payment for the improvement was made.</p>

<p>REGULATIONS PERTAINING TO REQUISITION.</p> <p>Extradition and Requisition—Signing of Warrant in Blank—Validity of, Dependent on What—Sufficiency of the Affidavit—Failure to Comply with Regulations to the Letter'.</p> <p>1. Tke fa(j.t that the warrant for the arrest of one wanted for extradition was signed by the governor in blank is immaterial, if it appears that the governor directed that the warrant issue; and where the direction is given by telephone, it is without significance whether the governor is one mile or one thousand miles from his oflice at the time it is 'given.</p> <p>2. A warrant is properly issued when© the affidavit which accompanies the requisition states positively the facts constituting the offense.</p> <p>3. Section 95, Revised Statutes, only provides regulations for the governor, and dotes not confer or limit jurisdiction, and is in no sense -mandatory.</p>

<p>ADVERSE POSSESSION AND CO-TENANCY.</p> <p> Limitation of Actions—Gan not be Pleaded in a Suit to Quiet Title, When—Statute Begins to Run in Favor of Tenant in Common, When—Tenant In Common Must Assert Exclusive Ownership, How —Quit-Claim Deed Passes After-Acquired Title in Partition Cases —Peaceable Settlement of Disputed Titles—Pleading—Policy of the Law. </p> <p>1. The statute of limitations can not be successfully pleaded as a defense to a petition to quiet title, which contains only the allegations required by Section 5779, Revised Statutes; but with respect ■to a cause of action which plaintiff voluntarily sets forth in his - petition, the statute may be pleaded in defense.</p> <p>■2. The statute of limitations does not begin to run in favor of a tenant in common in possession until some overt act takes place, which unmistakably indicates an assertion of ownérship of the entire premises to the exclusion of the rights of the co-tenant.</p> <p>3. Where quit-claim deeds are given for the sole purpose of effecting a partition, an exception is made to the general rule as to after-acquired title in real estate, and such deeds will be treated as containing an implied covenant that the grantor owns the premises conveyed.</p> <p>4. It being the policy of the law to encourage peace and the peaceable settlement of disputed titles, the fact that the plaintiff in an action to quiet title obtained a quit-claim deed from one of the defendants will not be held to raise a presumption of an acknowledgment of a co-tenancy.</p>

<p>CONSTRUCTION OF THE PHRASE “SEVENTH DAY OF THE WEEK.”</p> <p> Sunday Laws-—Exemption Extending to Those Who Observe the Seventh Day—Under the Statute Forbidding Transaction of Business on Sunday—Seventh Day Begins, When. </p> <p>Inasmuch as the proviso in Section 7033, prohibiting the transaction of business on Sunday, was intended to embrace those who observe the seventh day, it should manifestly be given a construction which will cover the period ofl time commonly observed as the seventh, day, or Sabbath, which begins with the appearance of the stars on Friday evening and ends at the same time on Saturday evening.</p>

<p>WHERE THE TESTATOR. IS SILENT NO COURT CAN SPEAK FOR. HIM.</p> <p> 'Wills—Construction of—Limitations of the Court—Where There is no Ambiguity—Intention of Testator—With Reference to a Matter Upon Which He is Silent—Can Not be Shown by Parol. </p> <p>The rule which permits- resort to ex-traneous evidence to make clear the language used hy a testator in his will, does not permit of the adoption of such a construction of the will as would read therein a provision- as- to which the wjll is silent, or §d<l thereto a sub OtaiFM bequest,,</p>

<p>DUTY OF TRIAL JUDGE WITH REFERENCE TO BILL OF EXCEPTIONS.</p> <p> Bill of Exceptions—The Fact that a Bill is Not Correct—Not a Sufficient Reason for Refusal of Judge to Sign—Mandamus to Compel Signing—Purpose of the Bill—Duty of the Trial Judge </p> <p>1. In a mandamus proceeding against a judge to compel him to sign a hill of exceptions, an answer to the effect that the bill presented is not a true bill does, not state a sufficient defense, but the answer should show willingness and effort on the part of the judge to perfect the bill.</p> <p>2. Where the answer does not show a disposition on the part of the judge to sign a true bill of exceptions, or to correct or assist in the correction of a bill which is imperfect or untrue, mandamus will lie to compel him to sign and settle a bill.</p>

<p>MUNICIPAL EXACTIONS FROM GAS COMPANIES.</p> <p> Municipal Corporations—Without Rights in the Streets—Which Can Be Sold to a Gas Company—Exactions for Revenue or for Other Purposes Void,—Estoppel. </p> <p>1. It is not within the powers conferred upon a municipal corporation to exact the condition in bestowing a gas franchise, that the company shall pay a specified sum of money into the city treasury annually for the benefit of the gas and light fund; and this is equally true whether such requirement be regarded as a revenue measure or as a provision to meet the expense of inspection.</p> <p>2. Inasmuch as a municipality has no rights in the streets which it ' could thus dispose of, it can not be said to have parted with anything of value on the faith of such a provision, and the doctrine of estoppel does not apply to a gas company making the defense of invalidity of the provision after having submitted thereto for a period of years.</p>

<p>RECOVERY OF MONEY'BY COUNTY PAID ON ILLEGAL BRIDGE CONTRACTS.</p> <p>Constitutional Law—Section 1277, Authorizing Recovery by County of Money Paid on Illegal Contracts—Auditor’s Certificate—as Required by Section 28346—Ignoring of Statxite not Justified by an Emergency—Pleading—Yoluntary Payment—Res Judicata—Equitable Rights,</p> <p>1. A demurrer to an answer, which denies the averments of fraud in the petition and alleges that the price charged was reasonable, that no damage has resulted to the plaintiff, and that non-compliance with statutory requirements was inadvertent rather than willful, raises different questions from those presented on demurrer to the petition, and should be determined independently of the ruling on the demurrer to the petition.</p> <p>2. The clause restricting the operation of Section 2'8346, as to the making of certain contracts' by public officials and the auditor’s certificate issue certifying that the money therefor Is on hand or in process of collection, does not apply to county commissioners, and the act is therefore not invalid as to them, whatever may be the effect of the restriction as to officials to whom it does apply.</p> <p>3. While it is the duty of county commissioners to keep county bridges in a reasonably safe condition, they are not in consequence thereof justified in ignoring statutory provisions as to repair or new construction.</p> <p>4. The rule as to voluntary payment does not apply to a voluntary payment by public officials of a claim contracted without authority by law.</p> <p>5. The fact that claims were regularly allowed and ordered paid by the proper officials is not res judicata, when these claims were founded on contracts which were invalid for non-compliance with statutory requirements.</p> <p>6. In a suit brought under Section 1277, authorizing the recovery of money paid out of the county treasury under an illegal contract, the failure of the defendant company, to whom the money was paid for the construction of certain bridges, to pray for the surrender of the bridges, is not a ground for a denial to the company of its equitable rights in the premises.</p>

<p>VACATION OF JUDGMENTS.</p> <p>Judgments—Court May Modify, When—Application of Section 5354— Discretion of Court in Setting Judgment Aside—Notice l>y Cleric to Counsel of Progress of Case—Cleric Becomes Agent of Counsel, When.</p> <p>1. The control of a court over its judgments up to the end of the term in which they are- rendered is in nowise affected by Section 5354, Revised Statutes.</p> <p>2. The discretion which is vested in a court to vacate or modify its judgments during term is a wise and just discretion, and does not authorize such action to satisfy a mere desire or whim.</p> <p>3. An attorney who requests the clerk of court to keep him informed as to the progress of the case and its date for trial thereby makes .him his agent, and dereliction of duty on the part of the clerk in that behalf would fall upon the principal.</p> <p>4. A judgment entered in the absence of the defendant and his attorney will not be set aside because of the negligence or inadvertence of the attorney in keeping informed as to the progress of the case, or because of the failure of one of his own employes or of the clerk of the court to inform him that the case was coming on for determination.</p>

<p>IRREGULARITIES IN BRANNOCK LAW ELECTION.</p> <p> Liquor Laws—Contest of Election—Held under the Brannock Law—Irregularities—In The Boundaries of the Residence District—In Designating a Polling Place Outside of the District—And in- the Manner of Receiving the Ballots—Application of the Law Relating to Contest of Election of Justice of the Peace. </p> <p>1. Rules as to the formality and regularity of elections, held under the Ohio Statutes for the purpose of restricting the sale of intoxicating liquor, should be deduced direct from the statutes, and from general principles relating to elections and the decisions of our own state, rather than to the decisions of other states which have special reference to the policy and legislation of such states.</p> <p>2. The designation, in an order for an election and the proclamation giving notice thereof under the Brannock Law, of a voting place on the opposite side of a street forming one of the boundaries of the proposed district and fifteen feet beyond the center of the street where the boundary line runs, is not a sufficient ground for setting aside the will of the voters as expressed by a decided majority, in the absence of any showing of fraud, or that any electors were mislead thereby or deprived of an opportunity to vote, or that the result would have been different had the voting place and booth been properly located within the district.</p>

<p>WHAT IN OHIO CONSTITUTES AN APPEARANCE.</p> <p>Appearance—Motion to Dismis» Does not Constitute, When—Language of the Motion—And Intention of the Party Maliing it.</p> <p>A motion to discharge an attachment for the reason that the affidavit upon which it was issued is false and the facts therein alleged untrue, does not confer jurisdiction; and it appearing thait the affidavit furnishes no ground for the attachment, a dismissal of the suit as well as of the attachment may properly be entered.</p>

<p>TIME WITHIN WHICH AN ELECTION MUST BE HELD UNDER THE BRANNOCK LAW.</p> <p> Liquor Laws—Directory and Mandatory Provisions of Statutes—Time Within Which an Election Must he Held Under the Brannoek Law. Mandatory. </p> <p>The provision of the Brannoek .Law that an election shall he held in not less than twenty or more than thirty days after the filing of the petition is mandatory, and compliance therewith is essential to the validity of the election.</p>

<p>WITHDRAWAL OF PETITION UNDER BRANNOCK LAW AFTER FILING.</p> <p> Liquor Laws—Withdrawal of Petition for Election under Brannock Lem—Change of Boundaries—Assent of Signers to Refiling. </p> <p>A petition for an election under the Brannock Law may be withdrawn, and the boundaries of the proposed district changed, and the petition refiled; and it is immaterial if in refiling the old sheets are used, without having the signers rewrite their names, provided only that the signers assent to the change in the boundaries, and constitute forty per cant, of the electors of the district so changed.</p>

<p>BRANNOCK LAW PETITIONS COVERING OVERLAPPING TERRITORY.</p> <p>Li'quor Laws—Precedence of Brannock Law Petitions—Covering Over- • lapping Territory—Where the First was Insufficient when Filed— Orders as to Elections are Ministerial.</p> <p>1. A petition for a Brannock Law election which is legally insufficient does not have precedence over a legal petition, covering overlapping territory, which is properly filed before the insufficient petition is made sufficient.</p> <p>2'. Orders made by judges for elections under the Brannock Law are merely ministerial and not judgments of the court, and hence may be reviewed by an associate judge, notwithstanding a rule against the review of the judgments of associate judges.</p>

<p>Error to special term.</p>

<p>ATTORNEY’S SHARE OF PROCEEDS OF LITIGATION.</p> <p> Assignment—Of Interest in Litigation—Legal Services a Valid Consideration—Rights of the Assignee—Rot Enforceable at Law—But in Equity After Notice to the Judgment Debtor. </p> <p>While it may be that an attorney, who has a contract for a percentage of the judgment recovered or of the proceeds of settlement, can recover in an action in equity against the defendant, upon a showing that the defendant had notice of his said interest therein, such recovery can not be had in an action at law; and a motion by the plaintiff for a dismissal of the suit brought upon the claim will be granted over the protest of the attorney.</p>

<p>ASSESSMENT FOR. R.EPAIR. OF STR.EET.</p> <p> Street—Specifications for Repair of—Not Necessary Where Work is Done hy the City—May he Repaired in Sections—Burden on Property Owner—To Show that Assessment Materially Exceeds Benefits. </p> <p>1. The filing of the specifications for tbe repair of a street may be dispensed with, where the work is performed by the municipality directly and riot hy contract.</p> <p>2. A street may be repaired in sections or parts, and the property owners assessed to pay the cost thereof.</p> <p>3. Where an abutting owner seeks to enjoin the collection of an assessment for a street improvement on the ground that the assessment exceeds the benefits, the burden is upon him to show that such is the fact, and this burden is not overcome by merely showing that the market value of the property was not enhanced by the improvement.</p>

<p>CONTEST OF A BEAL LAW ELECTION.</p> <p>Liquor Latos—Beal Law Election—Contest of—Number of Signers to Petition—Evidence Must be Restricted to Irregularities Alleged —Mayor’s Proclamation—Form of Ballot—Marking of the Ballot—■ Assistance Which May be Rendered the Voter—Irregularity of Election Officers, Not of Voters—Distinction Between Vote and Ballot—Ballots Cast by Idiots or Insane Persons—Rule for Counting the Votes—Elections.</p> <p>1. A petition for an election under the Beal Law is sufficient as to the number of signers, when it, has been signed by as many qualified electors as equal forty per cent, of those who cast their votes at the last preceding election.</p> <p>2. The general allegation in a petition to contest the validity of an election under the Beal Law that the election was illegal, is not sufficient for the admission of testimony as to irregularities other than those specified in the petition, and it is not competent for the contestors to amend their petition at a date later than twenty days after the election.</p> <p>3. An irregularity in the publication of the proclamation by the mayor will not be considered, where it appears that notice to voters of the pendency of the election was so general that more votes were cast than at the last preceding election.</p> <p>1. Under the general rule that a mere irregularity in form, which does not mislead the electors, will not invalidate an election, the court holds that the form of ballot used in this case, although not the form laid down in the statute, is not a sufficient reason for invalidating the election, and especially in view of the fact that the contestors by participating in the election sanctioned the iorm of ballot used.</p> <p>5. It is competent for judges of election, upon being informed that a qualified voter, who- is unable to leave his carriage, has been driven up to the curbstone, to go out to the carriage and receive his ballot and deposit it in the .ballot box; and were such not the case the irregularity is one which should be charged to the election officers rather than to the voter, and is not of a character which would interfere with a free expression of the peoples’ choice,</p> <p>6. The casting of a ballot which is not properly marked is not the casting of a vote, and in determining the number of votes cast, only those should be counted upon which the expression of a choice is indicated.</p> <p>7. One whose mental condition is such that a court would experience no hesitancy in committing him to an insane asylum or in appointing a guardian for him were proper application made, comes well within the class of persons who under the term “idiot” or “insane” are prohibited from voting by the Constitution.</p> <p>8. Where an election turned upon the vote of an insane person, and there is no way of determining which way the one thus afflicted voted, a court will deduct one vote from the proposition receiving the greatest number of votes, and the result being thus made a tie, the court will declare that there was no majority either way and no election under the statute.</p>

<p>CONTRACT OF LEASE DISSOLVED BY A SUPERIOR. AUTHORITY.</p> <p> Landlord and Tenant—Contract of Lease of an Unsafe Building—Subject to the Bight of the Municipality to Deal Thereioith—Order for Razing of a Leased Building—Rot an Eviction by Title Paramount—Evidence that Building Gan Be Made Safe Incompetent, When. </p> <p>1. The doctrine of caveat emptor applies to one leasing a building that is unsafe, and the contract of lease is entered into subject to the superior right of the state to order the building razed in the event that it becomes a menace to the public.</p> <p>2. The razing of a building-by authority of a building inspector on account of its unsafe condition is not an eviction by title paramount, and in the absence of a covenant broad enough to survive such action creates no liability against the landlord.</p> <p>3. In the absence of steps by either lessor or lessee to obtain a review, by the board provided for that purpose, of an order by a building inspector of a municipal corporation for the removal of a building on account of its dangerous condition, and his refusal to issue a permit for its repair, are equivalent to a specific order to tear the building down.</p> <p>4. Evidence that it was practicable to have rendered the building safe by shoring it up and making certain repairs is incompetent, where fraud on the part of the officers ordering the building removed is not charged.</p>

<p>CUSTODY OF SINKING FUNDS OF SCHOOL DISTRICTS.</p> <p> Sinking Funds of School Districts1—Custody of—As Between the Sinking Fund Trustees and the Board of Education—Orders on Such Funds—Must Be Drawn by Whom—Construction of Statutes. </p> <p>1. The board of commissioners of the sinking fund of a school district appointed under Section 3970-1, Revised Statutes, is entitled to the management and- control of said fund for the payment of debts and investment of the surplus without • dictation, but is not entitled to the custody or possession thereof.</p> <p>2. Under Sections 3970-4 and 4047, Revised Statutes, orders drawn on said fund must be drawn by the president and clerk of the board of education in favor of the person entitled thereto upon requisition made upon them by said board therefor.</p>

<p>CONTROL OVER PLACE OF BURIAL.</p> <p> Dead Bodies—Right of Burial and Paramount Right of Burial—Disposition of Body by Will—Wishes of the Deceased as to Place of Burial—Right of Widow to Determine Place. </p> <p>1. There is no universal rule as to the burial of the dead applicable alike to all cases, but each must he considered in equity on its own merits, having due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or ^association.</p> <p>2. The paramount right of burial of a dead body is in the surviving husband or widow, and if the parties were living in the normal relations of marriage, it will requireoa very strong case to justify a court in interfering with the wish of the survivor.</p> <p>3. A man can not by will dispose of his dead body, for there is no property in it, and it does not form a part of his estate.</p> <p>4. The expressed wishes of the decedent should be considered by the court, together with all the 'other circumstances of the case, but such wishes are not absolutely controlling upon the court.</p> <p>5. Where the evidence shows that husband and wife were upon good terms at the time of the death of the husband, and that the wife was discharging her full duty to him, her right to dictate the place of burial will be sustained by the court, even against the expressed wishes of the husband, especially where a child of the parties resides, with her surviving mother, at a place distant from that where the husband desired to be buried, and where there is not sufficient room upon the lot in the cemetery designated by the husband as his burial place to hereafter hold the bodies of the said widow and said child.</p>

<p>DEMURRAGE AND CAR. SERVICE RULES.</p> <p>Railways—Duty of, with Reference to the Switching of Oars—Arriving hy Connecting Lines—Such Service may he Compelled hy Injunction, When—Demurrage Charges—Denial of Switching Facilities for Failure to Pay—Legality of Demurrage Bill Disputed in Part— Refusal of Consignee to Pay Disputed Portion.</p> <p>1. Where the tracks of a railway company lie contiguous to a manufacturing establishment, and are also connected with the tracks of another railroad company, it is the duty of such first company, on 'request, to switch the cars arriving by said other company, consigned to such manufacturing establishment, to such contiguous tracks of its own, for the'purpose of unloading them, under the provisions of Revised Statutes, Sections 3340 and 3341; and where such company, without valid excuse, refuses so to do,' the performance of such duty may be enforced by mandatory injunction.</p> <p>2. When a railroad company has established a rule for the collection of “demurrage” charges, on cars so switched, which are delayed in unloading by the consignee more than forty-eight hours after being placed for unloading, such rule is not an unreasonable one, and a court of equity will not intervene in favor of a consignee who is denied such switching facilities on account of his refusal to comply with such rule, where he is responsible for such detention.</p> <p>3. When, however, such detention is caused by the acts of the railroad company, and in consequence the consignee, without default on his part, is prevented from unloading such cars within forty-eight hours, he can not be required to pay demurrage on account of such detention, and his refusal to do so will not entitle the railroad company to refuse him a continuance of the switching facilities referred to in the statute. -</p> <p>4. When a railroad company presents to a consignee a bill of “demurrage” charges, the correctness of a large part of which is bona flcie disputed, and demands, as a condition of continuing such, switching facilities, the payment of the whole bill, and an unconditional promise to pay all such similar bills that may be presented in future, the refusal by the consignee to make such payment and promise does not furnish a sufficient legal reason to entitle the railroad company to refuse to continue such switching facilities.</p>

<p>CONSTRUCTION OF A LICENSE TO MINE COAL.</p> <p>Mines and Mining—Exclusive License to Mine Coal—Construction of— Rights Granted—A Lease and Not a Sale—Meaning to he Given Technical Words.</p> <p>1. The use of technical words and phrases in a written instrument, such as “devise,” “release,” “mine-let,” and “royalty,” will not be allowed to defeat the manifest intention of the parties as otherwise expressed in the instrument, or to modify the agreement the parties have by the words used actually made.</p> <p>2. An exclusive lease or right to enter upon, mine, and remove coal from a tract of land, such as is presented for construction in this case, is a lease and not a sale of the property, and the royalties provided therein are in fact rentals and no more.</p>

<p>PROSECUTION FOR. KEEPING SALOON OPEN ON SUNDAY.</p> <p>Liquor Laws and Sunday Laws—Keeping Open on Sunday—Place Where Intoxicating Liquors are Sold—Prosecution for—Mayor’s Jurisdiction—Trial by Jury—Affidavit—Weight of Evidence—■ Pleading.</p> <p>1. Imprisonment is not part of the penalty, where it is imposed only to enforce-payment of a fine and costs under a police regulation; and it follows that error does not lie to a refusal by a mayor to grant a trial by jury to one charged for the first timé under Section 4364-20 with allowing a saloon to remain open on Sunday.</p> <p>2. An affidavit for arrest under this section is sufficient when the defendant is -charged- with keeping a place open on Sunday, “the same being a place where intoxicating liquors are on other days of the week exposed for sale and sold”; the exception provided by the statute must in such a case be established by the defendant, and it is not necessary that it be pleaded.</p> <p>3. On review of a prosecution before a mayor, the court is not called upon to consider the weight of the evidence, where the bill of exceptions does not show that it contains all the evidence.</p>

<p>LIABILITY OF STREET RAILWAY FOR. PROPORTION OF STREET ASSESSMENT.</p> <p> Street Raihoays and Street Assessments—Ordinance Granting Franchise—Construction of Provision of—Relating to Company’s Share of Cost of Street Improvement—An Assessment Includes All Items Entering into the Improvement. </p> <p>1. Under an ordinance granting a street railway franchise containing a provision that, if on said street a pavement has already been laid and an assessment therefor placed on the tax duplicate, and that said company shall pay to the city such proportion of the assessment for said improvement as the space occupied by its tracks and one foot on the outside of the outer rails thereof bears to the entire width of the improved roadway ': Held, That the railway company is bound by its contract to pay said proportion of the assessments made and levied upon (he feet front of the abutting property, and can not defend upon any of the grounds that would have been available to abutting lot owners; or to the company if not bound by such contract obligations.</p> <p>'1. In determining the width of such an improved street where the curb on each side thereof was constructed at the same time of said improvement, the curb is a part of the improved roadway, and should he computed.</p>

<p>SPECIAL VERDICTS—PROBATIVE AND DETERMINATIVE FACTS.</p> <p> Office of the Special Verdict—Findings by Jury—Determinative Facts Supporting a Judgment—Silence of Jury Upon an Issue Requiring a Finding. </p> <p>1. Probative facts or conclusions of law contained in the findings of a special verdict must be wholly disregarded by the court, when it comes to scrutinize the legal value of the facts found; and judgment will be granted only when determinative facts sufficient for its support remain, after the verdict has been stripped of all improper matter.</p> <p>2. Where the immaturity of the plaintiff is set out in an action for damages sustained in the service of the defendant, and the answer is a general denial and contributory negligence is not pleaded, the rule which requires the plaintiff to show that he was without fault does not apply, and the silence of the jury upon that question does not amount to a finding against the plaintiff.</p> <p>3. Where the gravamen of the petition is the failure to have a dangerous machine guarded, and failure to instruct an immature person in the handling of -the machine, it is not necessaiy that the jury state the various mental processes by which they reached the determinative and ultimate findings in favor of the plaintiff.</p>

<p>ELECTION UNDER. THE BEAL LAW.</p> <p> Liquor Laws—Contest of Election under Beal Law—Liquor Sellers not Entitled to be made Parties—Voters must Vote in Their Own Precincts—Residence of Inmates of Infirmary—Use of the Carbon Ballot—Gross Frauds at the Polls. </p> <p>1. The interest of liquor sellers in the result of a Beal Law election is not of such a character as to entite them to be made parties to a suit contesting an election which resulted on the face of the returns in favor of the sale of intoxicating liquors as a beverage.</p> <p>2. The fact that an election under the Beal Law is general, the result affecting the entire community alike, does not furnish warrant for the casting of his ballot by a voter in some other ward than the one in which he resides, and a ballot so cast is an illegal ballot.</p> <p>3. Paupers living in an infirmary can not be regarded as residing there temporarily, but the precinct in which the infirmary is located is the precinct of their residence.</p> <p>4. The use of the carbon ballot, in the manner in which it was used in the election involved in this case, is an open violation of law, divulges the secrecy of the ballot, makes effective the use of money at elections, and opens the door for the grossest fraud.</p> <p>5. The testimony discloses that sixty-two illegal votes were cast at the Beal Law election, held in Washington, C. H., March 30, 1905, and deducting this number from the total vote returned as in favor of the sale of intoxicating liquors as a beverage, gives a majority of fourteen against the sale, and the decree of the court is in accordance with this finding.</p>

<p>ALLEGED CONSPIRACY TO SECURE A DIVORCE.</p> <p>The Scintilla Rule—Its Decaying Vigor in Ohio—Duty of Oourt to ■ Grant a Non-suit, When—Judicial Officers—Not liable in Damages in Civil Action—Noiioithstanding Negligence or Corrupt Purpose— Where the Act is Within Their Jurisdiction—Divorce—Finding as to One Year’s Residence—Will not be Inquired into, When—• Injury from Conspiracy to Secure a Divorce—Discharge of one Defendant Does not Discharge All—What Constitutes Collusive Agreements to Secure a Divorce—Mouth of Injured Party Closed, When.</p> <p>1. The scintilla rule of evidence has no longer its former force and vigor in Ohio, and where the probative value of plaintiff’s evidence is so slight that a motion for a new trial would have to be granted if a verdict be- based upon it, it is the duty of the court to grant a motion to non-suit, or to direct a verdict for defendant at the conclusion of plaintiff’s evidence. .</p> <p>2. Judicial officers, such as a common pleas judge, can not be held in damages in a civil action for any judicial act, finding, judgment, order or decree made upon a subject-matter within the jurisdiction of such court. 'And the reason and policy of the rule apply with equal force against the maintenance of any such action, alleging the act to have been negligently or corruptly done.</p> <p>3. While such judicial officer may be held liable for acts outside his jurisdiction, this does not mean jurisdiction dependent upon the existence of facts to be determined by such judge from evidence adduced, but jurisdiction as a matter of law. Therefore a finding of fact by a judge that the evidence established one year’s residence of the plaintiff in Ohio, in divorce trial, will not be inquired into or disturbed in an action against such judge, on the ground that such finding was erroneous and therefore no right or jurisdiction existed to grant the divorce.</p> <p>4. As the injury done, and not the conspiracy, is the gravamen of the offense in civil actions for conspiracy, the action will warrant a verdict' against any one or more of the defendants. The discharge of one or more defendants will not discharge all, unless the injury could only have been inflicted by a joint act and mutual co-operation of certain defendants, in which, case the discharge of one hecessáry to such joint action, of necessity, discharges all.</p> <p>5. A husBand, who By written agreement, receives $4,000 from Bis wife, and agrees that she may take the children, leave and obtain a divorce at her pleasure, can not maintain an action against those whom he charges with carrying out said agreement and procuring such divorce.</p> <p>6. A collusive agreement with reference to divorce is one by which the parties ágree to obtain a divorce either by suppression of the facts, or by manufactured or false evidence. Where an agreement only provides that one party will not contest, it is not collusive, but calls for a closer scrutiny by the court of all the facts, and leaves it a matter for the court to consider in connection with-all the evidence adduced.</p>

<p>LIABILITY OF MUNICIPALITY FOR. ASSAULT BY ONE OF ITS EMPLOYES.</p> <p> Municipal Corporations—Liability of—For Tort of Employe—Must be Decided from Nature of the Employment—Assault by Care-taker of Park-—Committed while Acting in Line of His Duty. </p> <p>A municipality is liable in damages for an assault committed by the ■ custodian or care-taker of a public park, where the assault is committed by such employe while acting in the line of duty.</p>

<p>FACTS NECESSARY TO WARRANT EXTRADITION.</p> <p> Extradition—Power of Courts to Interfere—Facts Warranting the Issue of a Warrant—Requirement as to, Satisfied, When,—Criminal Law —Habeas Corpus. </p> <p>1. Under the law of Ohio, with reference to extradition, the facts which constitute the crime must be made to appear, unless the application is based upon an indictment by a grand jury.</p> <p>2. This requirement is not satisfied by a formal affidavit charging the offense in the language of the statute, but must be met by facts necessary to make out the crime charged.</p>

<p>RIGHTS OF INTERURBAN PASSENGEER.S TO TRANSFERS WITHIN MUNICIPAL LIMITS.</p> <p>Street Railways—Construction of the Rogers Law—And the Interurban Act—With Reference to Transfers—Consideration for a Transfer—And the Right to Demand it—“Traffic” Agreement—A Misnomer, When—Classification of Passengers as Urban and Interurban loithout Warrant—Suit lo Enforce Agreement as to Transfers Embodied in Franchise—Authority of City Solicitor to Bring ■—Obligations of Sub-lessee Companies—Merger of Rights.</p> <p>1. Sub-lessees' equally with lessees of rights under a street railway franchise are bound by all the limitations embodied in the grant to the original company.</p> <p>2. The provision of Section 1777, empowering the city solicitor to sue in the name of the city, “whenever an obligation or contract made on behalf of the corporation, granting an easement or creating a public duty, is being evaded or violated,” authorizes a suit by the city solicitor to enjoin traction companies from refusing to give or receive transfers in accordance with the grant to the lessor company.</p> <p>3. A transfer, issued in accordance ‘with the terms of the franchise granted to the Cincinnati Street Railway Company under' the Rogers Law, is not a privilege, but a right to continue the journey, if the passenger so desires, over a connecting line running in the same general direction within the city limits.</p> <p>4. There is no warrant in the legislation providing for intra and extra urban railways for the theory of classification of municipal and interurban passengers on any basis which would discriminate in favor of one as against the other with respect to rights of transfer on railways within the city limits; on the contrary, within the city limits urban and interurban passengers have precisely the same rights as to transportation.</p>

<p>WHEN A DECREE FOR SPECIFIC PERFORMANCE WILL BE REVERSED..</p> <p>Specific Performance—Grounds Upon Which a Decree for, Will be Reserved—Error — Misapprehension — Inadequacy of Consideration— Circumstances Indicating Delusion as to Property Values.</p> <p>1. A reviewing court will not disturb a finding involving specific performance, unless it is made to appear that the finding was based upon an error or misapprehension.</p> <p>a. The grace of the court which prompts enforcement of specific performance of a contract should not be extended, when in addition to inadequacy of consideration there appears to have been a delusion on the part of the seller with reference to property values, and the circumstances compel the belief that at the time of the transaction he was not of sound mind.</p>

<p>COLLECTION OF OMITTED TAXES BY PROSECUTING ATTORNEYS.</p> <p>Tax-payer—When Clothed with Legal Status of—Assistant Prosecuting Attorneys, Not Officers But Authorized Assistants of an Officer— Compensation of Prosecuting Attorneys—Provision Therefor in Different Counties—Contract hy County Commissioners with Prosecuting Attorneys for Collection of Taxes—Sections 119.7, 1271, 1274, 2862 and 845.</p> <p>1. The moment property is listed and returned to the auditor it becomes charged with taxes, and its owner assumes the legal status of a tax-payer.</p> <p>2. Assistant prosecuting attorneys are not officers in the sense the word is used in the state Constitution, but are persons authoritatively appointed to assist an officer in an office provided by law.</p> <p>3. A statute making an exception of certain counties should be distinguished from one which limits the operation of the law throughout the state; and the statutory exceptions which have been made relative to the compensation of prosecuting attorneys in different counties, the provision for the appointment of assistants in certain counties, and the further provision that in counties not having a county solicitor the prosecuting attorney shall act as the legal adviser of the county commissioners, who shall fix his compensation, are not unconstitutional.</p> <p>4. Where the county commissioners enter into a contract with the prosecuting attorney for the bringing of suits for the collection of taxes on property theretofore treated as exempt from taxation, and by agreement a test case is tried, the defendants in other similar cases agreeing to abide ,the result, the percentage the attorney is to' receive in the event of his securing a judgment is not limited by either law, justice or equity to the amount involved in the test case.</p> <p>5. The discretion lodged with county commissioners in the matter of fixing fees to be paid' for the collection of taxes in such cases will not be interferred with by a, court, where the fee is made contingent and is fixed at five per cent.; and where two separate contracts have been entered into, and the parties refuse to treat the second as superseding the first, a court will not under the circumstances of this case decree differently.</p> <p>6. An allowance of $1,250 per annum, made by county commissioners to a prosecuting attorney, whereas Section 845 limits the allowance to $250 for each case in which counsel is employed, will be upheld by a court only in the event of the number of cases exceeding five in a given year.</p>

<p>Petition of administratrix for allowance of claim against estate.</p> <p>This is an action brought under Section 6100,'Revised Statutes of Ohio. The plaintiff alleges, in substance, that she is the duly appointed and qualified administratrix of the estate of Gideon Liggett, deceased. That she is the owner and holder of a certain claim against said estate founded upon a promissory note, oí which the following is a copy:</p> <p>“March 25, 1887.</p> <p>“On demand, I promise to pay Martha Liggett five hundred and fifty dollars, for value received.</p> <p>“Gideon Liggett.”</p> <p>That an endorsement and payment has been made thereon as follows: “March 24th, 1902, at 12:20 standard time. Received on the within the sum of fifty dollars ($50.00). ”</p> <p>. That no further, or other, endorsements have -been made thereon; that no payments 'have been made on said claim, and no set-offs exist against the same, except as above set forth; and that there is due plaintiff on said note the sum of $995, with interest from March 24th, 1903. The names of the heirs are set forth, and the petition concludes with the usual prayer for allowance of the claim.</p> <p>The heirs of said decedent filed their answer to this petition setting up four grounds of defense, viz:</p> <p>1. They deny the execution of the note set up in plaintiff’s petition.</p> <p>2. They -aver that if said note was executed by said Gideon Liggett it has been fully paid.</p> <p>3. That said note is barred by the statute of limitations; and</p> <p>• 4. That the indorsement of $50, appearing as a credit on said</p> <p>note, was never in fact paid to said Martha Liggett by Gideon Liggett, or any one else, but was placed on said note by some person after the death of said Gideon Liggett, and that whatever indorsement appears thereon was for the sole purpose of avoiding the statute of limitations. The plaintiff files her reply, denying the second, third and fourth defenses.</p>

<p>PLEADING WHERE THE DEFENSE IS MADE OF CONTRIBUTORY NEGLIGENCE.</p> <p> Negligence—Form of Pleading—Where the Defense of Contributory Negligence is to be Interposed—Issue not made up, Unless—Surplusage—Motion to make Answer more Definite and Certain. </p> <p>1. Where, in a suit for damages on account of personal injuries, the allegations necessary to state the cause of action in no way suggest negligence on the part of plaintiff, there is no implication of negligence to be negatived, and an averment that plaintiff was without fault is unnecessary, and''if made, is mere surplusage.</p> <p>2. In such case the issue of contributory negligence can only be raised when pleaded as a defense, or when the testimony of the plaintiff tends to show contributory negligence.</p> <p>3. It follows, therefore, that where the-answer is a general denial and - a plea of contributory negligence, the plea as to contributory negligence is not mere surplusage, and a motion to'make this plea more definite and certain will lie.</p>

<p>POWER OF COURT OVER SENTENCE AFTER TERM.</p> <p> Suspension of Sentence—Pardoning Power and Power to Respite—Judicial Discretion in Revising, Suspending or Revolting the Suspension of Sentence-—Criminal Law—Habeas Corpus. </p> <p>In tbe absence of a statutory enactment to the contrary, the power of a court to suspend execution of sentence during good behavior, or to revoke such suspension, is not impaired or limited by the passing of the term in which the suspension was made.</p>

<p>INJURY TO ONE ABOUT TO TAKE A STREET CAR..</p> <p>Negligence—Liability of Street Railway Company to Intending Passengfr—Injured Before Coming in Actual Contact with the Car— By the Falling of a Broken Trolley Pole—Implied Assent of Company. to Carry—Constructive Control Over Waiting Passenger.</p> <p>1. A street railway company is bound to exercise tbe same high degree of care toward an intending passenger as toward one who has entered a car and paid his' fare, where such intending passenger, having taken his place at a point designated for receiving passengers, is injured after coming within the sphere of peril from the car, but before actual contract with it.</p> <p>2. H, when about to step upon a car which had stopped for passengers, was injured by the fall from the roof of the car of a broken trolley pole. Held: That so far as the liability of the company was concerned, H had become a passenger.</p>

<p>CHANGE IN COMPENSATION DURING OFFICIAL TERM.</p> <p> County Commissioners—Compensation for Services of—Provisions of Act of 1904—Applicable to Commissioners in Office at Time of Its Passage—Constitutional Inhibition against Change in Salary During Term—Not Effective, When—Office and Officer—Injunction. </p> <p>1. The constitutional inhibition against the increase or dimunition of the salary of an officer during his existing term does not render it incompetent for him to accept compensation, fixed by the General Assembly after he entered upon the discharge of the duties of his office and before the expiration of his term, where no compensation was theretofore provided.</p> <p>2. County commissioners, whose salaries were fixed by statutes declared unconstitutional during' their terms of office, were left in the position of an officer for whom no compensation had been provided,-and can not be enjoined from receiving the pay provided by the act of April 21, 1904, notwithstanding the rate is higher than they previously received under the unconstitutional statutes in existence at the time they came into office.</p>

<p>PROCEEDINGS ON ERROR TO THE PROBATE COURT.</p> <p> Probate Court—Jurisdiction of—Affirmative Evidence to Indicate Not Necessary—Pacts Which Are Not Jurisdictional—And Which Need Not Appear in the Journal Entries—Error Does Not Lie to Order Removing Administrator—Two Decrees to Sell Not Prejudicial, When. </p> <p>1. Probate courts are courts of record, having general jurisdiction witnin the sphere of the subject-matters assigned to them by the Legislature; their orders and decrees import absolute verity and require no affirmative evidence to indicate such jurisdiction.</p> <p>2. The following are not jurisdictional facts: The reasons for the removal of an administrator under Section 6017, Revised Statutes; the qualification of■ his successor under Sections 6005 and’ 6018; the latter’s failure to file a complete statement of the value and nature of the estate to be administered; and in actions to sell real estate—that evidence was heard therein finding it necessary to sell. Nor is it necessary that such facts affirmatively appear in the journal entries to sustain their regularity in proceedings on error.</p> <p>3. Although error may be prosecuted to an order denying the right of certain persons to administer an estate, under Section 6005, this can not be done on an order removing an 'administrator under Section 6017.</p> <p>4. A party is not prejudiced by two decrees to sell, one ordering an appraisement and the other an upset price, especially if the sale realizes more than two-thirds of the appraisement and more than the upset price fixed by the court.</p>

<p>CRIMINAL TRIAL BY JUSTICE OF THE PEACE OUTSIDE OF HIS TOWNSHIP.</p> <p> Justice of the Peace—Jurisdiction of, and Power to Hold Court Distinguished—Criminal Trial Held Outside of Township—By Consent of Defendant—Proceedings Invalid. </p> <p>Neither the statutes now in force nor the history of the law furnish authority lor the holding of a criminal trial by a justice of the peace outside of the township in which he resides and was elected, and such authority is not conferred by consent of the accused.*</p>

<p>EFFECT OF DEATH OF PLAINTIFF SUING FOR. INJURIES,</p> <p> Pleading—Necessity for Amendment of Petition—In Case of Death of a Plaintiff Suing for Injuries—when the Action Survives in Name of Administrator. </p> <p>Where a plaintiff who has sued for damages on account of personal injuries dies before the action is determined, and the suit is revived in the name of the administrator, the filing becomes necessary of an amendment to the petition or a supplemental petition, setting out when the original plaintiff died and whether death was the result of the injuries alleged in the petition.</p>

<p>GRADE CROSSINGS IN MUNICIPALITIES UNDER. THE . NEW LAW.</p> <p>Railways—Grade Crossings—Authority to Make in Municipalities— Construction of the New Law—Application of, to Steam Raihoays —And to Railways Other than Steam—Classification of a Raih way, Now Determined.</p> <p>1. In the statutes of Ohio, when the term railroad is used, steam railroad i§ meant, unless it clearly appears that some other meaning is intended.</p> <p>2. Whether or not a railroad is a steam railroad, within the meaning of the statutes of Ohio, may be determined, not only by the provisions of its charter, but evidence is admissible to show how it is constructed and operated and the character of the business it is engaged in, and the mode and manner of conducting such business. And if the road is not completed and in operation, evidence is admissible to show how it is to be constructed and operated and the character of the business it is to engage in, and the contemplated mode and manner of conducting such business.</p> <p>3. The law relating to the establishment of grade crossings (97 O. L., 546), relates exclusively to steam railroads, and in the case of an application to the common pleas court under this act by a railroad for permission to lay its tracks at grade over street crossings, and to prescribe what gates, signals, etc., shall be maintained, if the court find from the testimony that such railroad is not a steam railroad, it is without jurisdiction in the prémises.</p> <p>4. In the case of steam railroads, the court, under 97 O. L., 546, may grant permission to construct a grade crossing conditional upon the acquirement by the company, either by agreement with the municipal or other officers in charge of the road or street, or by condemnation, the right to do so. Such agreement or condemnation need not precede the permission granted by the court.</p>

<p>MISCONDUCT OF JURORS.</p> <p> Examination of Jurors—On Their Voir Dire—Evasive and Misleading Answers—Ground for a New Trial. </p> <p>1. A party who has been diligent as to the examination of proposed jurors, can not be required to submit his case to jurors who are disqualified by law and but for their own misconduct would have been subject to challenge.</p> <p>2. When proposed jurors are sworn on their voir dire, they are sworn to tell the whole truth, and not a part of it, and their answers should squarely meet, without evasion, what is fairly expressed by the terms of the questions; and where one undergoing such an examination was guilty of evasion or concealment, the party examining him was deprived of a substantial right and is entitled to a new trial.</p>

<p>QUESTIONS OF NEGLIGENCE IN ENTERING AN ELEVATOR.</p> <p>Elevator—Employe of Tenant Falls Doton Shaft—The Elevator having Crept up and the Door being Open—Negligence of the Landlord and of Plaintiff—Charge of Court—Duty of Harmonising its Several Parts—“Excusing” Negligence—Proper Care and Caution— Silence of the Supreme Court as to Questions Raised at a Previous Trial—Law and Fact.</p> <p>1. In reviewing a charge of court, the word “if” will not be read as equivalent to “unless,” where to do so would render the statement contradictory of a preceding paragraph.</p> <p>2. It is not error to leave it to the jury to say whether the facts and circumstances under which the plaintiff stepped into the open elevator shaft were such as to lull him into a sense of security, by leading him to think the' cab was there to receive him.</p> <p>3. The law excuses negligence under certain conditions, and in view of what had previously been said in the charge in question as to the combined negligence of the plaintiff and defendant, it was not error for the court to add: “If, on the other hand, you should find certain conditions existed [enumerating them], then it is -for you to say whether those conditions excused any negligence there might have been on his part.”</p> <p>4. It has been repeatedly held that as a matter of law an elevator is not a place of danger, and to give a special charge to the contrary would be error.</p> <p>5. Where the Supreme Court expresses no opinion on questions raised, at the first trial and the case is sent back for re-trial on account of certain errors that had been pointed out, and the same questions are again presented on the re-trial of the case, they may be considered as having been properly determined at the first trial.</p> <p>G. A special charge is properly refused, where it holds plaintiff to the exercise of proper care and caution, without, defining what would constitute proper care and caution under the circumstances of the case under consideration.</p>

<p>CONTEMPT OF COURT.</p> <p> Newspaper Attack on Grand Jury—Not Privileged Because Referring to Past Acts—Contempt of Court—Obstruction of the Due Administration of Justice. </p> <p>1. The publication of charges to the effect that certain indictments returned by a grand jury were procured through fraud, blackmail and bribery does not become privileged matter by reason of the fact that the charges relate to past acts as distinguished from those which are prospective.</p> <p>2. -The grand jury is a component part of the court, and the publication of such charges without evidence upon which to base them is calculated to impede the administration of justice, and is contempt of court for which summary punishment may be visited on the guilty parties.</p>

<p>ABATEMENT OF ACTION THROUGH INCOMPLETE APPOINTMENT OF ADMINISTRATOR.</p> <p>Administrator—Authority of, to Bring Suit for Wrongful Death— Dates from Completion of Appointment—Action Rendered Nugatory by Failure to Give Bond—And the Bar of the Statute Runs Against the Beneficiaries—Conditions Precedent to Jurisdiction•—• Sections 0134 and 6135.</p> <p>An action for wrongful death will not lie until the appointment of the administrator has been completed, and where completion of the appointment is delayed by failure of the administrator to give bond for more than two years, the right of action is abated by the statute, which runs against the beneficiaries without interruption from the date of the decedent’s death.</p>

<p>AUTHORIZATION AND SALE OF WATER. WORKS BONDS.</p> <p>Municipal Corporations—Water Works Bonds—Advertisement of and Offer of at Public Sale—Bids Withdrawn Because of Injunction Suit—Bonds then Sold at Private Sale—Tax-payer Suing in Interest of Competing Water Company—Without Standing in Court—Section 123, Municipal Code.</p> <p>The sale of a duly authorized issue of water worKS bonds having been enjoined, the city auditor declared the sale off, and the bids for the bonds were withdrawn by those from whom they had been received. Thereafter, a demurrer having been entered to the petition for an injunction and the petition dismissed, the bonds were sold by the finance committee at private sale. Held:</p> <p>1. That authority having been once given by council for the sale of these bonds, and the attempted public sale made in good faith having failed, the withdrawal of the bids did not work a rescission of the steps which had preceded, and it was not necessary to secure further authority from council in order to render valid a sale of the bonds at private sale.</p> <p>2. A suit by a tax-payer, brought under the circumstances of this case, must be treated as brought in the interest of the competing water company, and a plaintiff tax-payer thus situated has no standing in court.</p>

<p>ADMISSION TO BAIL PENDING HEARING ON ERROR.</p> <p>Criminal Law—Suspension of Execution of Sentence—Admission to Bail After Sentence—Common Plefis Court without Poxoer to Grant —Sections 7321, 7325 and 73C2.</p> <p>The authority conferred upon a common pleas judge to suspend the execution of sentence of one convicted of a felony, for such period as will give' a reasonable time to file a petition in error, does not authorize the admission to bail of the one so convicted, pending the hearing on the petition in error.</p>

<p>INCONSISTENCY BETWEEN SPECIAL FINDINGS AND GENERAL VERDICT.</p> <p> Negligence—On Part of a Municipality—In Permitting Sewage to Bade Up into Cellars—Answers of Jury to Special Interrogatories ■—Inconsistent with General Jerdict—Judgment Non Obstante Veredicto. </p> <p>1. Every reasonable hypothesis will be indulged for the purpose of reconciling the answers to special interrogatories with the general verdict of the jury.</p> <p>2. While provision for drainage of surface water by a municipality is a duty purely judicial in its nature, for the breach of which it has been held no liability attaches, the duty of keeping a sewer in proper condition is of a ministerial character, and where the sewer is inadequate to carry off the refuse and filth, which under certain conditions are backed onto the property of an abutting owner, the municipality is chargeable with the damages resulting.</p>

<p>PASSENGER. ON STREET CAR INJUR.ED IN COLLISION.</p> <p>Negligence—Injury to Passenger on Traction Gar—Extent of Injuries—■ Pleading—Intoxication of Motorman—Charge of Court—Highest Degree of Care—Dismissal of Co-defendant.</p> <p>1. In an action, for damages on account of injury to a street car passenger in collision with a wagon, an averment in the petition that the motorman negligently, carelessly and unskillfully permitted his caito run into the wagon, is sufficiently broad to make competent testimony to the effect that the motorman was in a state of intoxication five hours before the accident occurred.</p> <p>2. While instructions to the jury on abstract propositions of law is open to technical objection, such instruction is not necessarily prejudicial, and was not prejudicial in this case.</p> <p>3. What the court said to the jury in this case as to “highest degree of care” is not open to criticism, inasmuch as to have said anything less would have made what was said merely an instruction on ordinary care; and it can not be said that repetition of the degree of care required was erroneous as the repetition of the substance of this portion of the charge can not be said to have been clearly unnecessary, or made for the purpose of emphasis or to influence the decision of the jury.</p> <p>4. Where testimony tends to show that there was some pecuniary injury to the plaintiff from loss of time and diminished earning capacity, it is not improper to instruct the jury upon that subject.</p> <p>5. Where in such a case the company owning the wagon is made a party defendant, the granting of a motion to dismiss this party from the case is not a matter of which the traction company can complain inasmuch as the liability of the defendants, if any, was separate as well as joint.</p>

<p>COMMITMENT OF CONTUMACIOUS WITNESS.</p> <p> Witness—Right of, to Refuse to Testify—Where the Disclosure Would Tend to Incriminate—Witness the Sole Judge—Burden on Sheriff to Show Legality of Commitment—Liability of Witness to Suit for Damages—Habeas Corpus. </p> <p>1. Tbe rule in Ohio that a witness, refusing to answer on tbe ground that tbe disclosure will incriminate bim, is bimself tbe sole judge as to whether such is tbe fact, is subject only to tbe further rule that tbe party aggrieved may prove, if he can, in an action for damages, that tbe reason- given was- 'false and the refusal to testify willful.</p> <p>2. Where a witness who has refused to answer, on the ground that be might thereby incriminate himself, is committed as contumacious, the burden is upon the sheriff to show that the commitment was legal. t</p> <p>3. Inasmuch as there are crimes in'which proof of agency is necessary to conviction, a court will not hold that a witness has been legally committed for contempt in refusing to answer a question as to whether he was the agent of a certain bridge company during a certain period, where there is nothing in the record showing the nature of the action in which the witness is being examined.</p>

<p>ASSIGNABILITY OF LIFE INSURANCE POLICIES.</p> <p>Life Insurance—Policy of, not Assignable by a Married Woman—Under Section 3629, When—But Permissible under the Exception, When —Words and Phrases—Rights of Pledgee of Policy Who has Paid Premiums—Surety on Note—Burden upon to Prove Facts as to Extension.</p> <p>1. A policy of life insurance is not assignable by' a married woman under tbe first clause of Section 3629, for tbe reason that this clause has relation to a married woman simply, and without any qualifying words expressing the assignor’s intention, and operates to fix upon such assignment a presumptive intention to make provision for a married woman and her children jointly.</p> <p>2. But an assignment to a wife and her assigns, with a reversion back to her husband in case of her prior death, creates an estate solely for her use, and is valid under the second clause or exception of the statute.</p>

<p>REPLEVIN FROM THE ESTATE OF A DECEASED MORTGAGOR..</p> <p> Mortgage—Rights of Mortgagee—Upon Death of Mortgagor in Possession of Goods—Replevin not Availatle, </p> <p>Where a mortgagor in possession of goods dies, and his administrator proceeds to administer the same in accordance with the statute regulating the administration of estates, the mortgagee can not maintain an action of replevin against the administrator for the possession of the mortgaged property, even though the condition in the mortgage was broken at the time of the death of the mortgagor. In such case his interest in the property, under his mortgage, under the administration act, is transferred to the fund arising from the sale by the administrator.</p>

<p>PROCEEDINGS AGAINST AN ATTORNEY FOR CONTEMPT.</p> <p>Contempt—Misbehavior of Attorney—In the Presence of the Court— Inherent' Bight of the Court to Try Him—Notwithstanding Affidavit of Prejudice—Abandonment of Client in Criminal Case— What Constitutes Relation of Attorney and Client—Rights of the Accused—Withdraioal of Attorney for Refusal to Pay Fee—An Obstruction of Justice and Contempt of Court, When.</p> <p>1. When an attorney is charged with a contempt because of misbehavior in the presence of the court, the judge in whose presence the misbehavior took place has an inherent right to try the case. The General Assembly can not abridge this right, and the statute giving a party-the privilege of filing an affidavit of prejudice on the part of the judge was not intended by'the Legislature to enable a defendant in a case of contempt in the presence of the court to .take the trial of that case before another judge.</p> <p>2. An attorney who disregards an order of court upon the ground that it was not technically correct in its terms is guilty of contempt.</p> <p>3. When the attorney for a defendant in a criminal case has abandoned his client on the day of trial, and the defendant can not give bond and secure a lawyer to look after his interests until his paid attorney can be found, it is proper for the court to appoint counsel for the defendant, if he has no means to employ a lawyer. This action of the court does not, however, discharge the paid attorney from the case, for the court has no power to dismiss a lawyer from his client’s service.</p> <p>4. A proposal and acceptance will constitute the relation of attorney and client; and as long as the former remains an attorney in the case, he is bound as an officer of the court not to impede the business of the court by neglecting his duty to his client.</p> <p>5. The rights of a defendant in a criminal case must be protected by .the court. Among these rights is'the right to a proper defense. When an attorney, who is an officer of the court, assumes the defense of a prisoner at the bar,- he must do his duty in the premises. His correct conduct as an officer of the court involves the dignity of the court itself. When the misbehavior of an attorney interferes with the work of the court, it amounts to a contempt of court. The abandonment -of a defendant in a criminal case on the day of trial by an attorney who has agreed to undertake the defense, when there is no cause for such abandonment except that the fee was not all paid, and the work of- the court is thereby interfered with, is misbehavior which amounts to a contempt of court.</p>

<p>“LEGAL REPRESENTATIVES.”</p> <p>Mutual Benefit Societies—Construction of the Words “Legal Representatives''—Section 3630, Revised Statutes, Before and After Amendment.</p> <p>1. Section 3630, as originally enacted April 20, 1872 (69 O. L., 82), and amended February 3, 1875 (72 O. L., 23), authorized mutual relief associations to provide in their certificates for payment only to the family or heirs of the member as the beneficiary.</p> <p>2. As amended March 31, 1891 (88 O. L., 251), it authorized them to provide for payment to the “families, heirs, executors, administrators or assigns” of the member.</p> <p>3. The words “legal representatives” used to designate the beneficiary in such a certificate, issued prior to the act of March 31, 1891, mean the “family and heirs of the deceased member,” and not his administrator or executor.</p>

<p>COMPETENCY AND EFFECT OF HYPOTHETICAL QUESTIONS.</p> <p> Hypothetical Questions—Are Competent, When—What Facts may be Assumed—Exaggeration of Facts—Charge of Court—With, Reference to Opinions of Experts—Evidence—Error, </p> <p>1. A hypothetical question is not improper simply because it includes only a part of the facts in evidence, and counsel may assume the facts in accordance with his theory, of them, if supported by the evidence of some of his witnesses. But if the hypothetical question contains material exaggerations of facts, and is unwarranted by any testimony in the case, it is improper and should not be allowed.</p> <p>2. It is error to instruct a jury that the opinions of expert witnesses, based on hypothetical statements of fact, are of little value in case the jury find the hypothesis not in accordance with the facts. The jury should be instructed that the opinions are of no value.</p>