Volume 31 — Ohio Circuit Court Decisions

<p>CORPORATIONS — PRINCIPAL AND SURETY</p> <p>1. One Promising to Pay a Definite Sum, Not Surety as to Items Making Up that Sum.</p> <p>An officer of a hanking institution who, to secure to the bank the payment of certain sums which he owes to the bank and other sums of the bank’s money which he has loaned illegally, executes an instrument by which he obligates himself to pay to the bank a certain sum, which is the aggregate of a number of items, does not thereby become a surety as to the note of a third party which was one of the items included, and he is not relieved from liability on his own obligation to the amount of the note by the failure of the bank to proceed against the maker of the note upon written notice requesting it so to do.</p> <p>2. Corporation Agreeing to Sell Stock of Stockholder for Certain Amount, when Liable.</p> <p>A corporation which agrees to sell a stockholder’s stock for him at the same price for which _he is about to sell it through a broker, and which fails to sell it as agreed or give him any notice of its failure so to do, thereby becomes liable to account to him for the sum for which it agreed to sell it.</p> <p>3. Assignee of Contract Finishing it for Original Contractor May Compromise.</p> <p>The assignee of a contract who agrees to finish the contract, pay , the bills and account for the balance received, after payment of all expenses, may,in good faith, make certain repairs for which the contractor was not legally liable, where by so doing it avoids litigation and is enabled to reach an earlier settlement.</p> <p>4. Payments on Claim Not Due Applied to Extinguish Principal and Interest Accrued.</p> <p>Payments made on a claim bearing interest, but not yet due, should be so applied as to extinguish a part of the principal and the interest which has accrued on the principal extinguished.</p>

<p>CONTRACTS — PRINCIPAL AND AGENT — SALES.</p> <p>Uncertainty of Goods to be Sold, Defect in Contract for Sale of Goods Precluding Recovery of Commissions.</p> <p>An agreement to purchase during a designated period a stipulated amount in money’s worth of certain kinds of goods, the exact goods to be agreed upon within the period specified, does not amount to a contract in which the legal relations between the parties are determined and recovery for commissions maintainable until the agreement is reached as to the exact goods to be purchased.</p>

<p>CORPORATIONS — PLEADING</p> <p>Allegations as to Discrimination for Electric Current Rates Insufficient without Alleging Injury to Customers.</p> <p>Mere discrimination by a public service corporation without substantial injury is not necessarily unlawful; hence, allegations will not lie as to discrimination in rates charged for electric current, when made without regard to circumstances and conditions or any averment that consumers are unfavorably affected thereby.</p>

These actions were brought by the prosecuting attorney of Holmes county for the purpose of ousting certain railway relief associations organized and maintained by or under the control of the defendant companies.

<p>CONTEMPT OF COURT — WITNESSES</p> <p>Incrimination Question for Witness and Court can not Commit for Contempt.</p> <p>Inasmuch as the witness, and not the court, is the judge as to whether the answer to a question would incriminate him, the court is without jurisdiction to commit him for contempt in refusing to answer; but a witness who does not act in good faith in giving such a reason for refusing to answer may be subjected to the penalties for perjury.</p>

<p>MASTER AND SERVANT — PLEADING—VERDICT.</p> <p>1. Testimony as to Incompetenoy of Fellow Employe Inadmissible without Averment Negativing Knowledge of Incompetence or Dangers of Work.</p> <p>In an'action by an employe for injuries received in the course of his employment, testimony as to the incompetency of a fellow employe whose negligence caused the accident or as to failure of the master to provide any rule for carrying on the dangerous work in which they were engaged, is admissible where there is no allegation in the petition to the effect that the plaintiff did not know the work was being carried on without any rule for its conduct, and did not know or have equal means with the master for knowing of the alleged incompetence.</p> <p>2. Verdict not Supported by Evidence when Negligent Employe not Shown to have Authority to do Act Causing Injury.</p> <p>A verdict for damages for injuries resulting from the premature firing of a blast is not supported by sufficient evidence, when there is an entire absence of any evidence that the man who pulled the lever which caused the discharge had ever been given .any authority so to do, or that it was known on the work either "by the master or fellow employes that he was in the habit of «o doing.</p>

This is a suit in mandamus brought by the Lake Erie, B. G. & N. By. for the payment of $94.92 on a bill for electric lights, furnished to the Wood county court house, jail and sheriff’s residence. The bill was ordered paid by the commissioners, but the auditor refused to issue his warrant therefor, claiming that the. sheriff’s residence was not a part of the county jail and therefore it would be illegal to pay this bill.

<p>ANNEXATION — MUNICIPAL CORPORATIONS.</p> <p>Certificate of Clerk as to Signatures on Petition for Annexation Representing Percentage of Electors insufficient.</p> <p>The statutory requirement that the signatures to a petition praying for annexation to an adjoining municipality represent twenty^ five per cent, or more of the resident electors of the territory to be annexed, based upon the number of votes cast at the last municipal election held in that territory, is not satisfied by a certificate by the cleric of the board of deputy state supervisors and inspectors of election that the signatures on the petition represents twenty-five per cent, or more of the total votes cast at the last municipal election. Quaere — Whether it is within the power of the clerk to fully carry out the requirement of the statute is a matter of doubt.</p>

<p>INTOXICATING LIQUORS.</p> <p>A Boat, Belonging to Non-resident of State, Surreptitiously Brought by Lessor into Dry County not Subject to Sale under Rose Law.</p> <p>A boat, belonging to a resident of the state of Pennsylvania, which he leased to another- to be used exclusively on the waters of Erie Bay within such state, but who, without the knowledge or consent of the owner, brought it within the jurisdiction of a county in Ohio which had voted “dry” under the provisions of 99 O.L. 35, known as the “Rose law” and used it for the sale of intoxicating liquor, can not be levied upon and sold under the provisions of Sec. 4364-12, R. S. (Sec. 6077-8-9 G-. C.), to pay the tax assessed against lessor.</p>

<p>MASTER AND SERVANT.</p> <p>1. Liability Arising from Unequivocal Specific Order so Understood by Servant not Released by other Possible Construction.</p> <p>If by a fair construction of an order given by a superior to a servant, a person acting with ordinary prudence and exercising ordinary care would, under the circumstances, have considered it an unequivocal specific order to do a certain thing, the master can not escape liability for the consequences by showing that the order was open to another construction, and was not in fact intended to be understood as the servant understood it in acting, as he supposed, in obedience .thereto.</p> <p>2. Interpretation of Order by Servant Question for Jury.</p> <p>Whether the servant failed to exercise ordinary care in interpreting the order in the manner in which he did interpret it is a question for determination by the jury in the light of all the surrounding circumstances.</p>

<p>INTOXICATING LIQUORS.</p> <p>Serving Liquor to Two Persons at Same Time not Single Offfense.</p> <p>If two persons, detectives, enter a place within the limits of “dry” territory, and each one of them in turn calls for the drinks for both, and intoxicating liquor is served to both and is paid for each time, each offense is complete and prosecution will lie-therefor as separate violations of the law.</p>

<p>HEALTH — MANDAMUS.</p> <p>Petition Failing to State Cause for Mandamus to Compel Municipality to Appoint Board of Health.</p> <p>Grounds for the granting of a writ of mandamus to compel a municipal council to establish a board of health are not stated in the petition filed in this case and demurrer lies thereto.</p>

<p>PROCESS — QUO WARRANTO</p> <p>1. Alias Summons Issuable without Waiting for. Return of Original Summons.</p> <p>A party upon whose pleading summons has been issued is not required, upon discovery that good service has not been made, to wait until the original summons has been returned “not summoned,” or some action has been taken by the court before causing ,an alias summons to issue, but may proceed at once to secure service upon another writ within the life of the original summons.</p> <p>2. Return of Service of Summons on “Managing Agent” Met by Affidavit Denying Agent Served as Managing Agent.</p> <p>When a summons is returned by the sheriff as having been served on A, “managing agent of said company in Lucas county,” and this is met by an affidavit by the vice-president of the defendant company, in which he states that A is not and never has been its managing agent, but is an agent in charge of a local station, and nothing is presented in support of the truth of the recital in the return of the sheriff, a court will rely on the affidavit and grant a motion to quash the service.</p> <p>3. Return of. Service on-“Assistant Cashier and Treasurer” Defective in Fallingto Show Absence of Chief Officers.</p> <p>A return which recites that summons was served on B,- “assistant cashier and treasurer of the company,” is also open to a motion to quash, where met by an affidavit by B which removes the uncertainty as to whether he is the treasurer of the defendant company by stating explicitly that he is the “assistant cashier and assistant treasurer,” and the return fails to show absence from the county of all the chief officers and other officers named in the statute upon whom service may be made, or that the summons was left with B at the usual place of business of the defendant company, he being the person in charge thereof.</p> <p>4. Service in Quo Warranto against Railroad Company Sufficient if Made on Ticket or Freight Agent.</p> <p>Service may be had in quo warranto precisely as in other civil actions; hence, if the defendant is a railway company, service may be had upon a ticket or freight agent of the company, notwithstanding the principal office and principal officers of the company may be within the county at the time service is made.</p>

<p>FRAUDULENT CONVEYANCE — GUARANTORS.</p> <p>1. Extensions Held not to Release Guarantor.</p> <p>Under the terms of a guaranty reading, “I hereby guarantee the payment of all notes of P. E. & G. H. Cole, held by the Merchants National Bank, also all renewals of same, and any new loans made to either P. E. or G. H.' Cole by the said bank,” extensions of such loans are authorized; and the fact that the extensions were made of loans so obtained does not release the guarantor.</p> <p>2. Allegations'Explaining Intention of Parties as to Notes Guaranteed Competent.</p> <p>In an action upon notes claimed to be covered by such a guaranty, it is competent, where the circumstances surrounding the parties at the time of the execution of the guaranty are specially pleaded, to introduce evidence thereof tending to show what loans were contemplated by the parties thereto; hence, it is prejudicial error, in such a case, to strike out allegations as to circumstances which might reveal the intention of the parties, or to refuse to admit evidence relating thereto.</p> <p>3. Grantee, not Party to Bankruptcy Proceedings against Grantor for Fraudulent Conveyance, can not Plea Res Adjudicata in Subsequent Action to Declare Conveyance Preferential.</p> <p>Where a conveyance of property was made the basis of proceeding to declare the grantor bankrupt, on the theory that the transfer was in fraud of creditors, and the result was a dismissal of the proceedings upon a finding that the grantor was not a bankrupt, the grantee not being a party to the proceeding and therefore, not bound thereby, can not avail himself of the plea of res adjudicata and in so doing attempt to bind others, in a subsequent action in a state court to set the conveyance aside as preferential.</p> <p>4. Heirs of Grantor, Found not Bankrupt, May Assert Plea of Res Adjudicata in Action to Set Aside Conveyance as Preferential.</p> <p>But the heirs and personal representatives of the grantor may stand upon the judgment in the bankruptcy proceeding to the full extent to which it would be available to the grantor, if living; and an equity remaining in the land after satisfying the indebtedness existing from the grantor to the grantee at the time of the transfer, it is the privilege of the heirs and personal representative to assert the plea of res adjudicata as a defense to an action in the state court to set the conveyance aside as in fraud of creditors; and inasmuch as the judgment in the bankruptcy court was in effect a finding that in making the transfer there was no intent on the part of the grantor to hinder, delay or defraud her creditors, that determination as between the parties and their privies is conclusive in all courts as long as it stands, and is therefore good against demurrer in an action in the state court to set the conveyance aside, based on the contingent liability of the grantor under the guaranty above recited, but of which liability the grantor could not be held to have had knowledge at the time of the transfer in absence of actual knowledge of the default of her principals.</p> <p>5. Grantee without Knowledge of Financial Condition of Grantor.</p> <p>The facts and circumstances surrounding the parties to this case at the time of the marking of the transfer, as presented by the evidence, do not show such knowledge on the part of the grantee of the financial condition of the grantor as would render the transfer invalid.</p> <p>6. Consideration of One Dollar in Deed to Creditor Innocently and Bona Fide Accepting Deed not Presumption of Knowledge of Other Creditor’s Right.</p> <p>Where a consideration of one dollar is stated in a deed passing property from debtor to creditor dealing in good faith and innocently with respect thereto, and it afterward developed that the grantor had other creditors, a conclusive presumption does not arise that the parties intended by the recital as to the amount of the consideration that the Conveyance should be fixed as voluntary, even though in fact not voluntary, and thereby permit such other creditors to seize the property.</p> <p>7. Deed in Effect Mortgage, not Recorded in Three Days, Properly Recorded as Deed.</p> <p>Where a deed, as between the parties at the time the transfer was made, was in effect a mortgage, but was not recorded within three days as required by the statute relating to the recording of mortgages, the fact that it was in form a deed and took effect as a deed made it proper that it should be recorded as a deed.</p> <p>8. Preferential Mortgage to Grantee to Secure Loans Made when Grantor Solvent Held Valid.</p> <p>A valid preferential mortgage or deed may be made in Ohio by an insolvent, provided the grantee or mortgagee is not made a trustee for other creditors, and the grantee or mortgagee is in, ignorance of a purpose to prefer, and the consideration is not so grossly inadequate in case of a deed as to justify a court of equity in regarding the conveyance as in a measure voluntary; or even with knowledge on the part of the mortgagee of the insolvency of the mortgagor, the mortgage may still be valid to secure loans made on the faith of a promise given at a time when the mortgagor was solvent that they should be so secured.</p>

<p>CHARGE TO JURY — ERROR.</p> <p>Instruction to Jury to Disregard Evidence at Choice Erroneous.</p> <p>It is error to charge a jury that they have the “right to disregard any evidence that you choose and consider that only which appeals to your sense of justice and fairness.”</p>

<p>CONTRACTS — DAMAGES—ERROR.</p> <p>1. Right to Prosecute Error Waived by Failure to Stands on Motion to Withdraw Case from Jury.</p> <p>Where at the close of the evidence in support of a claim upon which judgment is asked a motion to withdraw the case from the jury is overruled, the right to prosecute error thereto is waived and lost, if the defendant does not stand upon his motion, but instead of so doing proceeds with the testimony for the defense.</p> <p>2. On Renewal of Motion to Withdraw Case from Jury after all Evidence, Defendant’s Evidence Enures to Plaintiff.</p> <p>Upon renewal of such a motion at the close of all the evidence, any deficiency in the evidence for the plaintiff which has been corrected by that offered for the defendant enures to the benefit of the plaintiff.</p> <p>3. Coal Dealer Testifying to Price of Coal need not Qualify as Expert.</p> <p>It is not necessary that a dealer in coal who has been called to ' testify as to the price of coal during a specified period should first qualify as an expert.</p> <p>4. Measure of Damages for Breach of Contract to Deliver Coal.</p> <p>In proving loss from breach of contract to deliver coal, testimony to the effect that during the period in question prices were irregular and high, ranging between certain figures which were given, affords a fair and safe basis for computation by the jury as to the loss sustained by reason of the breach, where the jury are also apprised' as to the sales made by the plaintiff during the period under review and the prices which he received.</p> <p>5. Instructions to Use Best Ability but to Do no Guessing not Erroneous.</p> <p>Where, in such a case, the jury were cautioned that they must do no guessing or speculating, a further instruction that they were to use their best ability and understanding in the light of all the evidence, is not erroneous.</p> <p>6. Readiness to Pay for Goods on' Delivery Need not Be Alleged or Proved to Recover for Breach of Contract to Deliver on Credit.</p> <p>In an action for breach of contract to deliver goods on credit it is not' necessary that the plaintiff allege or prove that he was ready, willing and able to pay for the goods on delivery.</p> <p>7. Contracts for Goods Bought on Credit and Cash.</p> <p>In the case at bar, two of the contracts being for coal bought on credit and one capable of being construed as a purchase for cash, and there being enough in the record to sustain the judgment which was rendered without regard to the contract for coal sold for cash, the judgment will be sustained, notwithstanding failure to allege and prove ability and willingness to perform the one of the three contracts requiring payment of cash on delivery.</p>

<p>DIVORCE AND ALIMONY.</p> <p>Alimony Allowed Wife Notwithstanding Divorce Granted for Wife's Aggression.</p> <p>A wife may he granted a share of her husband’s estate payable monthly, notwithstanding in the same proceeding the husband has been granted a divorce from her on her aggression.</p>

<p>SCHOOLS AND SCHOOL HOUSES.</p> <p>1. Dismissal'of Teacher Confined to Reducing Charges to Writing and Affording Opportunity for Hearing..</p> <p>The authority conferred upon a board of education to dismiss any teacher for inefficiency, neglect of duty, immoral or improper conduct can be lawfully exercised only after the charges have been reduced to writing and the accused teacher has been given reasonable opportunity to appear before the board and make defense thereto.</p> <p>2. Teacher Wrongfully Discharged Entitled to Full Pay for Contract Period.</p> <p>A teacher, employed for a school year or for any specified term, if wrongfully discharged before expiration of the term of employment, may recover salary in full for the remainder. of such term, upon a showing of failure to obtain other employment after reasonable effort so to do.</p>

<p>DAMAGES — MUNICIPAL CORPORATIONS.</p> <p>1. Compliance with Statutory Requirement as to Filing Claim for Damages Sufficiently Shown by Testimony Drawn out by City for Other Purpose.</p> <p>In an action against a municipality for damages on account of a change of grade, compliance with the statutory requirement as to the filing of a claim for damages more than two weeks before the commencement of the suit is sufficiently shown, in the absence of direct evidence offered in chief, by testimony drawn out by the city, although introduced by the city for an entirely different purpose.</p> <p>2. Value of Property Before and After Change of Grade not Prejudicial, Controlled by Charge to Jury.</p> <p>In such a case evidence as to the value of the property before and after the change of grade was made, while not admissible-on the theory that it affords a proper measure of damages, yet because of the necessity of permitting such an inquiry to take a wide range, such evidence is not necessarily prejudicial where properly taken care of in the charge to the jury.</p> <p>3. Ordinance Repealing Ordinance Establishing Grade Competent but not Conclusive of City’s Liability.</p> <p>An ordinance repealing a former ordinance establishing the grade of a street is competent in an action for damages to abutting property on account of the change of grade, but such an ordinance is not conclusive as to the liability of the city on account of such change of grade.</p> <p>4. Refusal to Withdraw Evidence of Information Received by Plaintiff from Her Father Held Prejudicial,</p> <p>Where the plaintiff testified that the improvements were made to conform to the grade originally established, and on cross-examination testified that she received this information from her father, it is prejudicial error not to withdraw the testimony so given from the jury.</p> <p>5. Failure to Contradict Allegations as to Construction of Buildings at Established Grade not Admission by City that Change of Grade Impairs Value.</p> <p>Failure on the part of the municipality to contradict allegations as to construction of the buildings to conform with the grade previously established and a subsequent change of the gradé by the municipality in such a manner as to impair the .value of the improvements so made, does not amount to an admission of these facts by the municipality; and a charge to the jury which states that these facts were uncontroverted and had been, established, and that the sole question to be submitted to the jury was the amount of damage, if any, suffered by the plaintiff, is prejudicial error.</p> <p>6. Measure of Damages for Change of Grade Based on Value of Improvements.</p> <p>In fixing the amount of damages to he awarded to an abutting owner on account of a change of grade, the test to be applied is the effect of the change upon the value of the improvements and not of the property, but this does not mean that the damages awarded must be limited to the expense of adjusting the improvements to the new grade.</p> <p>7. Cost of Filling Lot to New Grade and Damage to Property Therefrom Elements of Damages.</p> <p>There can be no allowance made for damages to the lot in its natural state, unless an unreasonable grade has been established; but where improvements have been made in reliance upon a previously established grade, or if none has been established with reference to a grade which might be reasonably anticipated, allowance may be made for filling the lot up to the new level around the house, and also for the cost of such changes in the building as a prudent man would make in restoring it to as good condition with reference to the new grade as it was with respect to the -old, adding thereto any diminution in the value of the building after restoration, or subtracting therefrom any increase in value after restoration, general benefits not considered, but special benefits may be deducted where in excess of the amount which the property owner will be compelled to pay for by way of assessments.</p>

<p>CONTRACTS.</p> <p>1. Reason for Admitted Breach of Contract Permits Conclusions and is Incompetent.</p> <p>It is not competent for a defendant, sued for a breach of contract which he admits, to be asked by his own counsel why he broke his contract, for that permits him to give conclusions instead of the facts from which his conclusions were drawn.</p> <p>2. Failure, to Institute Action on Notice of Breach of Contract not Evidence of Acquiescence in Contract Termination.</p> <p>The fact that one has delayed bringing suit for damages for breach of a contract for some months after notification that the other party to the contract will not abide by the contract is no evidence of acquiescence in a termination of the contract.</p>

<p>BUILDINGS — CONTRACTS—PAYMENTS.</p> <p>1. Difference between Contract Balance Due and Damages for Failure to Complete Building Contract,</p> <p>Where plaintiff is entitled to recover upon a building contract, because he has substantially performed his contract, it is proper for the jury in its verdict to fix the amount remaining unpaid upon the contract price as the amount due the plaintiff, the amount due the defendant as damages because of failure to complete fully the contract according to specifications, and - make the recovery the difference between the two.</p> <p>2. Waiver of Building Contract Provisions as to Extras.</p> <p>If a building contract provides that no claim shall be made for alterations and additions unless they be made, upon the written order of the architect, this provision may be waived by the owner, but evidence of waiver must be clear and convincing and it is error to charge that recovery can be had for such extras merely upon proof that they were furnished, without proof of waiver of the conditions of the contract.</p> <p>3. Promissory Note Given as Estimate Due on Contract Treated as Payment.</p> <p>A promissory note, given for an estimate due on a contract on which suit is afterwards brought for the amount due on the contract, must be treated as payment on the contract indebtedness, unless the plaintiff offer to surrender it.</p>

<p>NEGLIGENCE — VERDICTS.</p> <p>1. College Student Preparing to Become Mining Engineer Injured to Prevent His Following Such Profession.</p> <p>A young man studying at college to become a mining engineer was seriously injured in a trolley accident by the negligence of the company. He was permitted to show that his injury would prevent his following his chosen profession. Held: No error, even though his petition did not allege this special damage.</p> <p>2. Evidence of other Injuries than Alleged not Prejudicial if Jury Held to Injuries Alleged.</p> <p>Though the petition does not claim damages for an arm,, it is not error to permit a witness to testify that he found an injury to plaintiff’s arm, if the jury is cautioned that there can be recovery only for the injuries specified in the petition.</p> <p>3. Verdict of $9,000 for Back Curvature, Leg Fractures and Nervous Effects not Excessive.</p> <p>A verdict for $9,000 is not excessive for a young college man twenty-two years old, whose injuries consisted of permanent injuries to his back, fractures of his leg and his nervous system badly shattered.</p>

<p>DAMAGES.</p> <p>Measure of Damages for Breach of Contract to Furnish Building Materials.</p> <p>The measure of damages for breach of a contract to furnish materials to a sub-contractor on a building job is not the profit that might have been made if the materials had been furnished, but the difference between the agreed price of the materials and what they would have.cost in the market.</p>

<p>ACTIONS — STATE.</p> <p>1. State not Answerable for Injuries Sustained at the Hands of Its Officers.</p> <p>The state is not answerable in damages to an individual for an injury resulting from misconduct or unauthorized exercise of power by its officers and agents in governmental matters.</p> <p>2. Enabling Act Does not Authorize Action Against State for Incarceration in Insane Hospital.</p> <p>Notwithstanding an enabling act authorizing the suit to be brought, a petition asking damages for the alleged wrongful act of a probate judge in adjudging tlie plaintiff insane and for acts of violence and other forms of mistreatment claimed to have been inflicted upon her by the officers and employees of a state hospital where she was committed, does not state a cause of action.</p>

<p>BILLS AND NOTES — JUDGMENTS.</p> <p>1. Competency of Testimony of Widow of One of Makers of Promissory Note.</p> <p>In an action on a promissory note, where one of the makers is denying that he executed the note or that there was consideration therefor, it is not error to permit the widow of the other maker to testify as to certain matters which arose between herself and her husband when no other person competent to be a witness was present.</p> <p>2. Judgment on Cognovit Note Vacated and Burden of Proof.</p> <p>Where judgment taken on a cognovit note is vacated and a new trial awarded with the assent of counsel, and one of the defendants is denying consideration, the case stands as though no judgment had ever been entered, and the burden of proof follows the rule laid down in Ginn v. Dolan, 81 Ohio St. 121.</p>

<p>BUILDINGS — ESTOPPEL.</p> <p>1. Garage in Building Restrictions.</p> <p>A garage may not be built upo* a lot restricted against the building of sheds and barns.</p> <p>2: Failure by Lot Owner to Object to Violation of Building Restrictions by Some not Estoppel as to Others.</p> <p>Failure by one lot owner to object to the building by others of garages upon 14 out of 800 lots in an allotment as to which a uniform plan of improvements and restrictions has been adopted for the benefit of all the lots, will not estop said lot owner from enforcing the restriction with respect to another lot in his neighborhood.</p>

<p>STREET RAILWAYS.</p> <p>1. Street Railway Franchise to Operate Express Passenger Service and Regulating Fares and Stops.</p> <p>Under a renewal grant of a street railway franchise a municipal corporation has the right to provide that the street railway company may operate “express passenger service and other special cars” and in the regulation thereof the municipality may authorize a special rate of fare upon such cars and that they stop at certain designated places only for the purpose of taking on and letting off passengers.</p> <p>2. Interurban Cars Operated on City Line Governed by Street Railway Franchise.</p> <p>When the cars of an interurban electric railroad company at the terminus of a street railroad company operating under a municipal franchise are turned over to the latter company and are operated by it on its own tracks, the interurban company retaining no control over said cars when so operated by the other company and having no contract with it as provided in Secs. 9130 to 9133, G .C., the cars become the cars of the city company, and, as such, subject to regulation by the city council, under the terms of the franchise of the city company.</p>

<p>MORTGAGES — RECORD.</p> <p>1. Failure to Record Assignment of Mortgage Renders Lien Invalid as to Subsequent Innocent Purchaser from the Mortgagee.</p> <p>Where a grantor of land accepts in part payment a note and mortgage, which he assigned but no record was made of the assignment, and subsequently the grantee and mortgagor reconveyed the property to the grantor, who promised to surrender the mortgage but delayed doing so, and in the meantime he sold the property to a third party who had no knowledge of the assignment of the mortgage, the said innocent purchaser takes the property free from the lien of the assigned mortgage.</p> <p>2. Steps Necessary to Make Tender Effective.</p> <p>To render a tender effective, it is necessary not only that it be made prior to the bringing of the action, but also that the amount be brought into court and paid over to the clerk before trial is had of the case.</p>

<p>JUDGMENTS AND DECREES.</p> <p>Justice Judgment Appealed and Case Dismissed for Want of Prosecution no Bar to Another Action.</p> <p>A judgment of a justice of the peace appealed to the common pleas court where the case is subsequently dismissed for want of prosecution is no bar to a subsequent action upon the same cause of action or a part thereof.</p>

<p>CORPORATIONS.</p> <p>1. Demand and Refusal of Officers to Bring Suit for Corporation Justifies Minority Stockholder to Sue.</p> <p>Although generally a stockholder can not bring an action in his own name but for the benefit of the corporation, upon a cause of action existing in favor of the corporation, without alleging and proving demand upon the corporation, or its proper officers to bring the action, and refusal on their part to act, yet where the demand would have to be made upon those who are charged with having committed the wrongs which it is sought to redress and against whom- the action would have to be brought, and, under the circumstances, would be a vain thing, its necessity is dispensed with.</p> <p>2. Corporate Officers not Required Personally to Finance Company.</p> <p>Tlie highest good faith on the part of an officer and director of a corporation does not require him to finance the company out of his own resources so as to enable it to take advantage of a favorable option.</p>

<p>MASTER AND SERVANT.</p> <p>Fellow-Servant Defense not Abrogated in all Cases.</p> <p>Where one employee of a railroad company who is assisting another employee of the same grade, his fellow-servant, in replacing old ties with new, is struck a blow on the nose and injured by a mallet carelessly swung by such fellow-servant, the defense of fellow-servant may be made by the railroad company in an action brought against it by the injured employee, notwithstanding the provisions of Secs. 6242, 6244, G. C.</p>

<p>CORPORATIONS.</p> <p>Sale of Unissued Stock to Director on Terms Unfair to Company Set Aside.</p> <p>A sale of unissued treasury stock to one of -the .directors at par on a cash payment of 2 per cent, and a promise to pay the balance in ten annual payments, no efforts being shown to sell the stock to others, but cash offers' therefor having been received and refused, additional capital not being necessary and the stock being probably worth more than par, because it was then paying 20 per cent, dividends, will be set aside as a fraud upon the corporation and its stockholders.</p>

<p>EXEMPTIONS — JUDGMENTS.</p> <p>1. Exemption in Lieu of Homestead under Land Contract.</p> <p>Where real estate in which a judgment debtor has an interest under a land contract is, by agreement of all parties, sold and converted into money in a suit to marshall liens on the property, such liens to be transferred to the fund realized from its sale, the judgment debtor’s interest in said fund as exemptions is $500, notwithstanding he occupied the premises as his home- ■ stead.</p> <p>2. Equitable Interest under Land Contract not Subject to Judgment Lien.</p> <p>A judgment is not a lien upon the judgment debtor’s equitable interest in real estate under a land contract for its purchase and possession by him.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>1. Failure of City Officials to Conform to Directory Requirement as to Record of Contract Modifications not Nullifying.</p> <p>Section 4331, G. C., requiring that action taken by the proper officials modifying an existing municipal contract shall be made a matter of record, is directory only, and such action regularly taken is not nullified by failure through an oversight to make a record thereof.</p> <p>2. Failure of Council Specifically to Authorize Contract Modification not Material.</p> <p>Nor does failure by the city council to specifically authorize a modification by ordinance render such a modification invalid since a municipal improvement which has been duly authorized by council and the necessary appropriation made, is left by the municipal code to the proper board or officer to be carried to completion.</p> <p>3. Bad Faith Absent in Record.</p> <p>The record fails to disclose bad faith or any abuse of discretion in the modification by the officials in charge of the construction of a bridge over the Maumee river at Cherry street, Toledo.</p> <p>4. Failure to Certify Funds Available on Modification of Contract Previously and Regularly Executed.</p> <p>Where an appropriation for a specific municipal improvement has been made and funds provided by a sale of bonds to pay for the entire cost of such improvement, and thereafter a new contract is entered into modifying some of the terms of the original contract, the failure of the city auditor to certify that the money was in the treasury to the credit of the fund from which it is to be drawn does not render the modified contract invalid for violation of Sec. 4211, G. C., and this is true for an additional reason when the modifying contract imposes no increased liability upon the city.</p>

<p>ESTOPPEL-PRINCIPAL AND AGENT.</p> <p>1. Authority to Exchange Properties Does not Authorize Acceptance of Deed to Third Person.</p> <p>An agent authorized to make an exchange of properties is not authorized to accept a deed conveying property accepted in exchange for his principal’s property to any one else than his principal.</p> <p>2. Estoppel not in Favor of Person Having no Knowledge of Statements Made.</p> <p>An estoppel from statements made does not arise in favor of one who had no knowledge of the statements at the time he acted.</p>

<p>FRAUDULENT CONVEYANCES.</p> <p>1. Fraudulent Conveyance not Set Aside if Grantee not Aware of Fraudulent Intent of Debtor.</p> <p>A fraudulent conveyance made with intent to hinder, delay and defraud creditors, will not be set aside under Sec. 67-e, of the National Bankruptcy Act, unless made within four months next preceding the filing of a petition in bankruptcy, nor under Sec. 6343 (Sec. 11102 G. C.), unless the person to whom the conveyance was made knew at the time of the transaction of the fraudulent intent on the part of the debtor.</p> <p>2. Conveyance to Wife of Husband’s Interest Governed by Ohio Law though Conveyed in Italy.</p> <p>Where a husband citizen of Ohio becomes indebted to his wife in the .United States and in payment of that indebtedness delivers to her in Italy a conveyance of his interest in a trust estate held in the state- of Ohio, the transaction is governed by the laws of Ohio and not by the laws of Italy.</p>

<p>RELEASES — TRUSTS AND TRUSTEES.</p> <p>Evidence of Release to Trustee by Cestui Must Be Clear and Convincing.</p> <p>When one holds property as trustee for another and claims that such other has released his equity therein upon sufficient consideration, the evidence of such, release must be clear and convincing.</p>

<p>INTOXICATING LIQUORS.</p> <p>Petition Held Prima Facie Evidence of Qualified Electors Signing.</p> <p>A petition for or against the sale of intoxicating liquor in a residence district it itself prima facie evidence that the signers thereof are resident electors of the district, qualified to sign the petition, and in the absence of evidence tending to show that a signer is not such an elector, it is not error to count his name in determining the sufficiency of the petition.</p>

<p>ELEVATORS — NEGLIGENCE.</p> <p>1. Ordinary Care in Selection of Safe or Unsafe Way of. Doing Thing.</p> <p>The rule that where there are two ways of doing a thing, one safe and the other unsafe, he who undertakes to do the thing must choose the safe way, or choose the unsafe way at his peril, does not require that more than ordinary care shall be used in the selection.</p> <p>2. Reliance of Electrician on Operators Giving Notice of Moving Elevator.</p> <p>When one working for an independent contractor in repairing wires about an elevator has requested the operator of the elevator to notify him each time before the elevator. is moved, which he has promised to do, it is for the jury to say whether the workman was negligent in relying upon such notice being-given him.</p> <p>3. Knowledge of Operator of Danger to Repairing Electrician by Starting Elevator without Notice Knowledge of Owner.</p> <p>When the operator in charge of an elevator, whose duty it is to run the elevator for the defendant in the conduct of his business, has notice that a workman for an independent contractor making repairs near the elevator is likely to put himself in position where the operation of the elevator without warning-will injure him, and that such danger will be avoided by giving him notice before the elevator is moved, the knowledge of the elevator operator is the knowledge' of the defendant.</p> <p>4. Competency of Exhibits.</p> <p>An exhibit is not necessarily incompetent because it fails to show some exact thing in connection with the subject under investigation provided it shows some matter directly bearing upon the matter under investigation, with an explanation of how it differs from that which is being investigated.</p>

<p>DAMAGES — FRAUD.</p> <p>Measure of Damages for Misrepresentations in Exchange of Properties.</p> <p>The measure of damages in an action for fraud in the exchange of property is the difference between the value of the thing received, if it had been as represented, and its actual value at the time of the exchange.</p>

<p>WILLS.</p> <p>Sufficient Signature to Will.</p> <p>A will is signed at the end thereof, as required by the statute, when the signature of the testator appears after the will, just below a line intended in a blank form for the signature and in a blank space in the attestation clause intended for the name of the testator as part thereof, said name also appearing in the attestation clause, in the handwriting of the scrivener of the will, just below the testator’s signature, in such position as to be read as a part of said attestation clause. Sears v. Sears, 77 Ohio St. 104, distinguished.</p>

<p>BENEFICIAL ASSOCIATIONS.</p> <p>1. When Appeal to Courts Lies to Member of Mutual Benefit Association.</p> <p>While a member of a mutual benefit society claiming to be entitled to the payment of sick benefits from it, which are refused, must first seek his remedy for such refusal before the tribunals of the order provided for deciding such claims, still, if the society has provided no method whereby a member whose claim has been rejected may obtain a review of the decision and no tribunal for the hearing of an appeal from such decision such member may sue on his claim in the civil court.</p> <p>2. Appeal from Refusal to Pay Sick Benefits not Provided.</p> <p>Where the only regulation with regard to appeals in the constitution and by-laws of a mutual benefit society is as follows: “As a sign that a member should be punished for a transgression of the society’s or the union’s constitution either for indecent or immoral conduct by a jury or by the constitution alone, or by the vote of the members, he has no right to arise against the society except by an appeal to the union,” there is no provision with regard to an appeal from a refusal to pay sick benefits.</p> <p>3. Interest Claimed for First Time in Common Pleas on Appeal from Justice of the Peace.</p> <p>Where suit is brought in a justice court for $202 without interest upon appeal to the common pleas court and trial there on á petition asking judgment for $202 and interest, if no objection is made to the claim for interest until after judgment in the common pleas court, the cause will not be reversed because verdict and judgment included such interest.</p>

<p>NEW TRIAL</p> <p>1. Motion to Vacate Order Overruling Motion for New Trial.</p> <p>When a trial judge, upon submission of a motion for a new trial, promises to let the defendant’s'attorneys know of the disposition of the motion, which he fails to do, but overrules the motion without their knowledge, of which action they do not learn until after time for filing a bill of exceptions has passed, this constitutes such “irregularity in obtaining a judgment or order,” within the purview of Sec. 11631 G. C:, as to authorize the court at a subsequent term to vacate the order overruling the motion for a new trial and set the same for hearing.</p> <p>2. Judicial Notice of Judge’s Own Conduct.</p> <p>On a motion to vacate an order overruling a motion for a new trial on the ground of irregularity in obtaining it, which irregularity is alleged to be an. act or course of conduct of the judge, said judge in passing on the motion, may take into consideration, without other evidence, such facts as came within his own cognizance.</p> <p>3. Journal Entry Embodying Facts Within Knowledge of Court Treated as Finding of Fact and Law. *</p> <p>When a journal entry embodies facts relating to the court’s own action on the subject before it, which disclose on their face that they were within the knowledge of the court, such journal entry should be treated as a finding of facts, and given the same effect as though the court had been specially requested to make a finding of fact and of law.</p> <p>4. Affidavit of Good Defense not Filed on Motion to Vacate Order Overruling Motion for New Trial.</p> <p>An affidavit that the defendant has a good defense need not be filed with a motion after term to vacate an order overruling a motion for a new trial.</p>

<p>ELEVATORS — LANDLORD AND TENANT — PLEADINGS.</p> <p>1. Landlord , Liable for Accident Resulting from Faulty Construction of Elevator.</p> <p>When an elevator accident occurs as the'result of original faulty construction the owner of the building may be liable, though he has leased the building to a tenant.</p> <p>2. Landlord Retaining Control of Elevator and Repairs Liable for Defects.</p> <p>When a landlord under his lease to a tenant retains control of an elevator and agrees to keep it in proper condition, he is liable for an accident resulting from the elevator getting out of repair.</p> <p>3. Pleadings Amended to Conform to Evidence.</p> <p>When it can be done without surprise or injury, a case should be tried upon the evidence, and if objection be made that evidence is not admissible under the pleadings, the pleadings should be amended at once and without terms.</p> <p>4. No Reversal for Variance if not Prejudicial or Misleading.</p> <p>When there has been a variance between pleadings and proof, and no amendment of the pleadings to conform to the facts proved has been asked, ordered or made, the judgment will not be reversed unless it appear that by the variance the plaintiff in error was misled to his prejudice.</p>

<p>APPEAIr-BANKRUPTCY — PRINCIPAL AND SURETY.</p> <p>Bankruptcy by Debtor Pending Appeal Does Not Stop Proceeding to Judgment Against Bankrupt to Fix Sureties’ Liability, But Execution Enjoined.</p> <p>When pending an appeal of a judgment against him, the judgment debtor becomes a bankrupt upon his own petition and is discharged from the payment of his debts, the appeal can still be prosecuted for the purpose of fixing the liability of the sureties on the appeal bond, but execution of judgment in the appellate court against the bankrupt should be perpetually enjoined.</p>

<p>RAILROADS.</p> <p>1. Competency of Evidence as to Obstruction of View in Crossing Accident Case.</p> <p>In a railroad crossing accident case, a witness who has made an inspection of certain premises for the purpose of discovering whether certain buildings obstructed the view from a given point along the line of a railroad track, may testify that they do or do not obstruct the view, but where an objection to such evidence is sustained and the court thereafter permits the exact situation, with location and dimensions of buildings with reference to the track to be given to the jury, from which it may readily conclude whether or not the view was obstructed as claimed, no prejudice results from, the exclusion of the witness’ answer to the first question. So also with regard to the plaintiff’s own statements that her view was obstructed by certain objects, at the time of the accident when she was about to cross the track.</p> <p>2. Ordinance Limiting Speed of Trains.</p> <p>It is competent on cross-examination of plaintiff in such case to ask ■ her if she knew of a village ordinance limiting the speed of trains at the place where she was injured.</p>

<p>WILLS.</p> <p>Vesting of a Life Estate Subject to the Accumulation of a Fund.</p> <p>A devise óf real estate to testator’s son, “to have and to hold and the use thereof during his natural life, and should his wife, Edith Rice, outlive him, then she shall have the use thereof during the remainder of her life, and at the decease of both, said property shall become and. be the property of their children and their heirs forever,” coupled with a direction that, “It is my will that my son, Benj. F. Rice, shall out of the income of aforesaid property, erect a monument upon the graves of myself and my husband; Jos. P. Rice, within five years after my decease, at a value not less than five hundred dollars,” vests in the son a life estate in said real estate, charged with the payment or accumulation of a fund, of $500 for the building of a monument, and the son’s interest in said real estate is subject to attachment.</p>

<p>DAMAGES — INJUNCTION.</p> <p>For Breach of Covenant Not to Engage in Business — Damages Instead of Injunction Allowed.</p> <p>In an action by the purchaser of a grocery store against the person from whom he bought it under a covenant that the latter would not engage in the grocery business within one mile of the store sold, to enjoin the violation of said covenant and for damages for its breach, if it appear that pending the suit the purchaser has given up his store and eeased business, and is financially unable to continue business, an injunction against the defendant will not be allowed, but damages for violation of the covenant will be allowed the plaintiff.</p>

<p>NEGLIGENCE — VERDICT.</p> <p>Verdict Directed in Absence of Negligence Shown.</p> <p>The requirement in Sec. 9018, G. C., that in all actions brought against a railroad company for personal injury to an employe, all questions of negligence and contributory negligence shall be for the jury, assumes that there must be evidence tending to establish negligence on the part of the defendant, and if the undisputed facts in the case do not tend to show that the defendant has been guilty of negligence, there is no question of fact to be submitted to the jury, and it is the duty of the court in such case to apply the law to the undisputed facts and direct a verdict for the defendant.</p>

<p>CONTRACTS.</p> <p>Employe Relieved from His Agreement by His Wrongful Discharge.</p> <p>When an employe under agreement not to engage in the same business in the same city for one year after leaving his employment, is wrongfully discharged by his employer, his agreement will not be enforced against him.</p>

<p>RAILROADS.</p> <p>1. Engineer on Duty Fifteen Hours Not Applicable when Switchman Guilty of Contributory Negligence.</p> <p>When the evidence shows that the decedent switchman met his death through his own contributory negligence, the fact that the engineer of the locomotive which struck him had been on duty for more than fifteen consecutive hours without an interval of eight hours rest, in violation of Sec. 9007, G. C., does not operate to render the raillroad company liable.</p> <p>2. Comparative Negligence Statute not Retroactive in Operation.</p> <p>Section 9018, G. C., introducing to a limited extent the doctrine of comparative negligence, is not applicable to an accident occurring before its passage, notwithstanding it contains the provision that the statute shall apply to all action “brought” after its passage.</p>

<p>ATTORNEY AND CLIENT — ERROR.</p> <p>Attorney Claiming Interest in Judgment not Party and Cannot Prosecute Error.</p> <p>An attorney claiming an interest in a judgment rendered in favor of his .client, but not a party to the action in which it was recovered, can not prosecute error proceedings in his own name to any order of the court made in said action.</p>

<p>APPEAL — CONSTITUTIONAL LAW.</p> <p>Appeal without Bond from Justice Court to Municipal Court Constitutional.</p> <p>Section 11 of the act creating the municipal court of the city of Cleveland and providing'for appeal without bond from a court of a justice of the peace to said municipal court, in certain cases, is constitutional.</p>

<p>COUNTER CLAIM AND SET-OFF.</p> <p>Set-Off Disallowed where Claimed Against Assignee of Invoice and Bill of Lading.</p> <p>When an invoice and bill of lading made out in the name of the consignee for goods sold the consignee are assigned by the consignor to a bank for an advance of 80 per cent, of the face value of the invoice, in an action thereon by the bank against the consignee, the latter can not off-set a claim against the consignor of which the bank had no notice, the course of dealing between the parties showing that the consignor reserved the right to ' control the goods shipped.</p>

<p>OFFICE AND OFFICERS.</p> <p>Sufficiency of Charges Upon Which Police Officer Dismissed.</p> <p>If charges upon which a member of the police force of a city was tried by the director of public safety and the civil service commission and discharged from the force, are indefinite or trivial, or not such as are recognized by law or the rules made by the police department in pursuance of the law as causes for which an officer may be suspended, the judgment of suspension is void; but if the charges, or any of them, are of the kind and character which the law recognizes as sufficient to authorize the discharge or suspension of the officer from the police department, then the court will not inquire into the question whether the charges were sustained by the evidence or not, unless 'fraud is alleged.</p>

<p>CONTRACTS — WARRANTY.</p> <p>Evidence of Verbal Special Warranty not Competent in Action on Written Contract.</p> <p>In an action on a written contract for the installation of certain lamps containing the following provision, “This contract annuls any and all agreements, quotations and understandings both written and verbal, if any, which have heretofore existed between the parties hereto, and shall * * * become a contract covering all agreements and understandings, either verbal or written existing between the purchaser and the company,” evidence tending to show a verbal special warranty of the lamps made by the agent of the vendor before the signing of said contract, will not be received.</p>

<p>APPEAL — DISCOVERY.</p> <p>1. Action for Money Judgment Not Appealable Because Discovery Sought.</p> <p>An action on a contract for a money judgment though it require a discovery of information solely in the possession of the defendant, is triable to a jury and not appealable.</p> <p>2. Final Judgment Prematurely Rendered before Motion for New Trial Overruled.</p> <p>Final judgment should not be rendered in an action until the motion for a new trial is overruled, when one is properly filed, and when judgment is entered before the overruling of the motion for a new trial, the forty days for the preparation and filing of a ■ bill of exceptions does not begin until the overruling of the motion for a new trial.</p>

<p>EXEMPTIONS — VENDORS AND PURCHASERS.</p> <p>No Exemptions Prior to Vendor’s Lien.</p> <p>There is no exemption as against a vendor’s lien, and when the premises upon which the lien is established have been sold and the money is in the hands pf the clerk of the court, the lien will be transferred to the fund, to be paid before any exemptions can be, allowed the judgment debtor.</p>

<p>BILLS AND NOTES.</p> <p>Giving Judgment on Joint Promissory Note Against One Maker without Finding as to Liability of Other, Erroneous.</p> <p>When the liability on a promissory note is joint only, it is error to adjudicate as to the liability of one maker, without passing judgment as to the liability of the other joint obligor.</p>

<p>BENEFICIAL ASSOCIATIONS.</p> <p>1. Remedy in Beneficial Order Exhausted Prerequisite to Appeal to Courts.</p> <p>Where an individual becomes a member of a fraternal beneficial association, he is bound to exhaust the remedies provided by its constitution and by-laws, not opposed to the laws of the state, which provide for the redress of grievances between members and the organization, and until he has done so he can not appeal to the courts for relief on account of such grievances.</p> <p>2. Limitation in Membership to One Church, Valid.</p> <p>The requirement that none but practical Roman Catholic women may become members of a fraternal beneficial association or of any of its branches is one which the organization has a right to embody in its constitution and by-laws.</p> <p>3. Suspension from Catholic Order for Marriage to Divorced Person.</p> <p>Marriage to a divorced person whose divorced husband or wife, as the case may be, is still living, is a violation of one of the rules or canons of the Roman Catholic Church, and a person who has committed this offense- against the church, can not, under its laws, remain a practical Catholic.</p>

<p>BUILDING RESTRICTIONS.</p> <p>Violation of Restriction as to Value of Improvements to Be Made.</p> <p>A restriction in the deed of certain premises that “no house shall be erected upon said premises at a less cost than $3,500,” is violated by moving a barn upon the lot and converting the same into a house, the building after all alterations and repairs being of less value than $3,500.</p>

<p>FALSE IMPRISONMENT — LARCENY.</p> <p>1. Taking Purchase from Store, Sold as Cash Transaction, Is Larceny.</p> <p>It is larceny if a person engaged in a cash purchase take away from a store, over the protest of those in charge, and convert to her own use goods which have not been paid for and which have been purchased under circumstances which led the clerk to believe it was to be a cash transaction.</p> <p>2. Justice of Peace Issuing Warrant in Larceny Describing Thing Taken as Merchandise Not Liable for False Imprisonment.</p> <p>An affidavit for arrest for larceny is loosely drawn where the thing taken is described only as “merchandise,” but a justice of the peace acting in good faith in the issuing of a warrant upon such an affidavit is not liable to an action for false imprisonment.</p> <p>3. Attorney Fees as Element of Damages in False Imprisonment.</p> <p>An instruction to tbe jury in an action for false imprisonment that they may, if they choose, include attorney’s fees as a part of the compensatory damages, is erroneous where the qualification is not added that such an award can only be based on a finding that the defendant acted through fraud or malice or for purpose of insult. -</p>

<p>NEGLIGENCE — STREET RAILWAYS.</p> <p>1. Correct Concrete Rule Applicable to Facts In Particular Case.</p> <p>In a personal injury damage case if a correct concrete rule of conduct applicable to the facts of the particular case is given in charge to the jury, it is of np importance whether the observance of the rule is ascribed to the exercise of reasonable care or of the highest degree of care.</p> <p>2. Assumption of Risk in Attempting to Board Moving Car.</p> <p>In an action for damages for injuries resulting from negligently starting a car which plaintiff was about to board as a passenger, it is proper to charge that one who undertakes to get on a moving car, assumes such risks as are incident thereto, and if injured thereby can not recover.</p>

<p>FRAUDULENT REPRESENTATIONS.</p> <p>Knowledge of Plaintiff as to Falsity and Acquiescence in Making Them.</p> <p>In an action on a bond when a defense is that the defendant was induced to sign the bond by reason of false statements made by plaintiff or by another with his knowledge and acquiescence, it is error to charge the jury that in order to make good his defense the defendant must prove not only that the statements were made, were false, were believed and acted upon by the defendant, but also that the plaintiff at the time he made them or acquiesced in their being made, knew them to be false.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>1. What Constitutes Rejection of Claim by Administrator.</p> <p>To constitute a rejection of a claim by an administrator there must be something said or done by him which shows clearly that he does not intend to pay the claim; merely saying that he does not want to pay the claim and requesting that others jointly liable with his decedent on the claim be made to pay it, is not sufficient.</p> <p>2. Delay in Bringing Suit on Claim Against Estate not Defense if not Rejected.</p> <p>Delay in bringing suit on a claim against an estate during which delay the administrator has not refused to allow the claim, is no defense to an action thereon against an estate, though meanwhile others jointly liable with the estate on the claim have become insolvent.</p> <p>3. Notice of Dishonor of Note Endorsed by Decedent Given Administrator. •</p> <p>Notice of dishonor of a note endorsed by one who died before maturity of the note, should be given to the administrator of such deceased endorser, and if notice sufficient to identify the note is so given to the administrator it will be held good though the notice says the note was “endorsed by you,” instead of “endorsed by your decedent.”</p>

<p>CONTRACTS — DAMAGES.</p> <p>Compensation for Delay and Faulty Execution on Part of Building Contractor.</p> <p>When the natural and direct result of the failure of the party to a building contract, who has undertaken to erect a building for another, to perform his contract, is to cause the latter to suffer inconvenience in the use and occupancy of such building, or where such result must have been contemplated by the parties to the contract as a probable consequence of its breach, compensation for such inconvenience may be awarded.</p>

<p>RAILROADS.</p> <p>1. Warning Required of Starting of Train Stopped at Street Crossing.</p> <p>It is the duty of an engineer of a train or engine which has been brought to a stop in, or near to, a public street crossing, to give warning of his intention to start his train, in order that any one upon the street may be informed of the danger of attempting to cross the track, and further, to exercise reasonable and ordinary care to see that the way is clear.</p> <p>2. Right of Pedestrian to Rely on Warning of Train’s Starting at Crossing.</p> <p>A person upon a public street which crosses a railroad track, upon which is an engine or train standing still near the crossing has a right to rely upon the engineer of the railroad company giving notice before he starts his engine or train across the street.</p>

<p>DEEDS.</p> <p>Rule In Shelly’s Case Applied to Deed Granting Life Estate with Reversion to Children, Heirs of His Body, Etc.</p> <p>When the granting clause of a deed is in the usual form and gives, grants, bargains, sells and conveys the premises therein described unto the grantee, his heirs and assigns, and the habendum clause reads, “to have and to hold said premises for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever,” the rule in Shelly’s case applies and the grantee takes an estate in fee simple.</p>

<p>DAMAGES.</p> <p>Instruction that Jury May Find Damages Less than Value Given by Witnesses.</p> <p>When the question of the value of a horse is before the jury and witnesses have given their opinions as to its value, describing it, it is not error to instruct the jury that if it, from other evidence in the case, was of the opinion that the horse was worth less than the value put upon it by the witnesses, they might so decide upon their own judgment.</p>

<p>EASEMENTS — LICENSE.</p> <p>1. License or Easement Determined from Terms of Instrument Though for Public Sewer.</p> <p>Whether the right to maintain a sewer across premises of another is a mere license or an easement is to be determined from a consideration of the terms of the instrument creating the right, even though the right is claimed by a municipal corporation and the sewer in question is a public sewer.</p> <p>2. Reference as to Reservation of Right of Way in Later Conveyance not Conclusive of Term Granting License to Maintain Sewer.</p> <p>Reference to a contract granting a license to maintain a sewer across premises of another as a contract granting a “right-of-way for a sewer” when found in a conveyance from the owner of the premises to another than the licensee, is not conclusive as to the character of the right created by the contract.</p>

<p>DEEDS.</p> <p>Construction of Building Restriction with Reference to Porch Roof.</p> <p>A restriction in a deed which requires that no building, except an open porch, be erected nearer the^ street line than twenty-five feet, is not violated by the erection of an open porch upon the restricted territory, although the roof of said porch is but a continuation of the roof of the main building.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Allowance to Administrator for Extraordinary Services to Estate not Disturbed on Error.</p> <p>The mere fact that an allowance to an administrator for extraordinary services rendered his estate seems somewhat large will not warrant the circuit court, on error, in reversing the judgment, the probate judge, with his expert knowledge of the value of such services having first fixed the amount, and the common pleas court, on appeal, having fixed the same amount.</p>

<p>HEALTH.</p> <p>1. Reasonable Construction Given Health Rules of Board of Health.</p> <p>A reasonable construction should be given to a rule of the board of health of a city, intended for the protection of the health of its inhabitants, to the end that it may be enforced.</p> <p>2. Reasonableness of Health Rule Governing the Slaughter of Chickens.</p> <p>One who dresses chickens in a room in the same building with his meat market and connected with it on the same floor, can be punished for the violation of a rule of the board of health providing: “No fowls or animals shall be kept confined, nor shall same be slaughtered or dressed in any basement or any building, a part of which is used and occupied as a market where meats are sold for food.”</p>

<p>MUNICIPAL CORPORATIONS — OFFICERS.</p> <p>1. Officers of Village Advanced to City Become Officers of City.</p> <p>Upon advancement of a village to a city as provided by law, village officers become city officers and the mayor, in such case, has the power of veto.</p> <p>2. Compensation of Officers on Advancement to City.</p> <p>Where there is no valid ordinance fixing the compensation of councilmen, upon the induction into office of the first council elected after the advancement of a village to a city, such council can fix the compensation of its own members.</p>

<p>PRINCIPAL AND AGENT — SALES.</p> <p>Representations that Bank Is Backing Purchaser Not Representation of Agency.</p> <p>Representation by a dealer that a certain hank is backing him in the purchase of hay is not equivalent to a representation that he is purchasing for the bank, and one who has sold him hay and taken his check in payment, can not upon the dishonor of the cheek, hold the bank as principal, merely because the dealer, when he shipped the hay, stated in the bill of lading that it was to the order of the bank and drew upon the consignee of the hay to the order of the bank for the purpose of securing his account with it.</p>

<p>EVIDENCE.</p> <p>Number of Witnesses Does Not Determine Weight of Evidence.</p> <p>A judgment will not be set aside as being against the weight of the evidence in a case where the evidence is clearly contradictory and the jury must believe certain witnesses and disbelieve others, simply because it has believed the witnesses who were fewer in number; this is so especially when uncontradicted facts point toward the conclusion reached by the jury.</p>

<p>EXEMPTIONS — SET-OFF.</p> <p>1. Right of Set-Off not Defeated by Assignment of Judgment. *</p> <p>The assignment of a judgment does not defeat the right of set-off.</p> <p>2. Exemptions Personal Privilege not Transferable to Assignee of Judgment.</p> <p>The right to exemptions is personal and can not he transferred to the assignee of a judgment against which the right to a set-off existed.</p>

<p>APPEAL — DIVORCE AND ALIMONY.</p> <p>Wife May Appeal Cause for Alimony without Giving Bond.</p> <p>An action wherein a wife has sought alimony and a decree subjecting the property of the husband in the hands of third parties to the payment of the alimony, may be appealed without the giving of an appeal bond.</p>

<p>TRIALS.</p> <p>Compromise Verdict Set Aside.</p> <p>Where the jury returns a verdict which is contrary to the evidence introduced by both plaintiff and defendant it will be set aside.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Property Other than Personal Earnings May be Attached on Claim for Necessaries.</p> <p>Property other than the personal earnings of debtor may be attached where the claim upon which judgment is asked is for necessaries.</p>

<p>ATTACHMENT — EXEMPTIONS.</p> <p>Validity of Statute Providing for Attachment of Debtor’s Personal Earnings.</p> <p>The law permitting the attachment of 10 per cent, of a debtor’s personal earnings, where a claim is for necessaries, does not create a favored class and is constitutional.</p>

<p>INTOXICATING LIQUOES.</p> <p>1. Judicial Notice of Municipal Ordinances not Taken.</p> <p>Courts other than municipal tribunals will not take judicial notice of municipal ordinances.</p> <p>2. Valid Ordinance not Presumed from Affidavit Charging Illegal Sale of Intoxicating Liquors but not Stating Sale as Beverage.</p> <p>Municipal ordinances can only be passed in conformity with the power granted by the legislature, and when the legislature has conferred authority to pass ordinances regulating the sale of intoxicating liquors as a “beverage” and to “regulate ale, beer, and porter houses and shops,” courts can not presume the existence of a valid ordinance enacted under those statutes, when the affidavit upon which an arrest prosecution is based only charges that the accused allowed to remain open on Sunday his place of business when upon other days intoxicating liquors were commonly sold, without charging that they were sold as a “beverage” or that the place was an “ale, beer or porter house or shop.”</p>

<p>TENDEE.</p> <p>Tender of Payment Must be Made at Residence of Payee.</p> <p>When no agreement as to place of payment is made, a tender, to be legal, must he made at the residence of the payee; and the fact that the obligor, through a misunderstanding, was at some other place for the purpose, will not excuse the failure to make a tender at the proper place.</p>

<p>ERROR.</p> <p>Reversal of Judgment Obtained In Justice Court and Retaining Case for Trial not Final Order, but Error Dates from Dismissal.</p> <p>When a case is taken upon error from a justice of the peace to the common pleas, the judgment of the justice reversed and the case retained for trial and at a later term dismissed for want of prosecution, the four months within which a petition in error may be filed in the circuit court dates from the dismissal of the case and not from the reversal of the judgment of the justice, as that was not a final order.</p>

<p>TENDER — TIMBER—TIME.</p> <p>Whether Three Days Reasonable Time to Remove Logs, or Excused Tender of Purchase Price, Question for Jury in Replevin.</p> <p>When standing timber was sold at a certain price per M., the logs to be measured and paid for by check before being removed from the land; a partial payment made, and after the trees were cut but before they were measured or paid for the land was sold and the purchaser of the trees notified by the vendor of the land that the sale was made subject to his rights in the trees, and by the purchaser of the land that if he wanted the trees he must remove them within three days and pay for them in cash; in an action of replevin following the refusal of the purchaser of the land to allow the purchaser of the trees to come upon the land to measure them, the question of the jury is not as to the ownership of the trees but whether or not three days was a reasonable time in which to allow their removal and whether or not the act of the purchaser of the land excused the purchaser of the trees from making legal tender.</p>

<p>DAMAGE — ERROR.</p> <p>Remittitur Does Not Cure Error.</p> <p>When plaintiff has recovered a verdict in an action brought for two distinct injuries, for one of which defendant was not liable in damages, and the evidence as to the extent of the other injury was conflicting; a remittitur even though it be for a greater amount than that claimed for the injury for which defendant was not liable, will not cure the error in allowing that branch of the case to be considered by the jury, when it does not affirmatively appear that the remittitur was allowed for that reason.</p>

<p>INJUNCTION — NUISANCES.</p> <p>Dry Cleaning Plant, not Necessarily Nuisance, Erection will not be Enjoined.</p> <p>A plant to he used for dry cleaning and dying garments may he so constructed that it will not be per se a nuisance to adjoining property owners, and where the evidence shows that a plant constructed in that manner is contemplated, its erection will not he enjoined.</p>

<p>DEFAULT JUDGMENT.</p> <p>Failure to Notify Stockholders of Insolvent Corporation of Institution of Suit Against It upon which Default Judgment Is Taken Does not Amount to Fraud and Collusion.</p> <p>When in an action to enforce stockholders’ liability a judgment for the plaintiff has been reversed and the case remanded from the Supreme Court for the sole reason that no insolvency of the corporation had been shown, and while pending in the common pleas court, the plaintiff obtains a default judgment against the corporation upon which execution is issued for the purpose of establishing the insolvency of the corporation in the stockholders’ liability suit, such judgment is not obtained by fraud or collusion and is not in violation of any .rights of the stock- • holders, even though they were not notified of the suit.</p>

<p>CRIMINAL LAW.</p> <p>Admissions of Accused to Physicians Examining Him under Void Order of Court Are Voluntary.</p> <p>When in the course of an examination being made by physicians, appointed by the court for that purpose, the accused makes admissions as to his physical condition, such admissions are admissible in evidence, even though the court had no right to order such examination and the physicians had no right to make it and the accused did not know that he was not obliged to submit to such examination.</p>

<p>EVIDENCE — REPLEVIN.</p> <p>Parol Evidence Admissible to Show that Dismissal of Replevin Was Result of Agreement.</p> <p>When the plaintiff in an action of replevin has executed the delivery bond required by statute, received the property replevined, dismissed the replevin suit at its costs, and is later sued by the defendant in the replevin suit for the value of the property, an answer alleging that the dismissal of the replevin suit was the result of a settlement states a good defense, and parol evidence is admissible to show the agreement upon which the suit was dismissed and the disposal of the property.</p>

<p>STREET RAILWAYS.</p> <p>Negligence of Carrier in Inviting Passenger to Alight, and of Passenger in Alighting at Dangerous Place, Questions for Jury.</p> <p>When the evidence discloses that a passenger upon an electric car had notified the conductor of his desire to alight at a certain stop; that the car ran past that stop and came to a standstill upon a trestle; that the passenger, who was upon'the rear platform, thereupon alighted from the car and started to walk hack along the trestle to the station, but before he could do so was killed by the car backing upon him without warning; Held: That the question of the negligence of the carrier and of the contributory negligence of the passenger were for the jury to to determine.</p>

<p>ERROR — PLEADINGS.</p> <p>1. Error Lies to Action of Court in Overruling Motion for Judgment Notwithstanding the Verdict, though Case is Still Pending.</p> <p>Error lies to the overruling of a motion for judgment notwithstanding the verdict, even though a motion for a new trial is made and is undisposed of in the common pleas court.</p> <p>2. Petition May be Amended to State Cause of Action after Verdict is Returned.</p> <p>A court may allow the amendment of a petition after verdict and before judgment is entered, even though the petition in its original form did not state a cause of action.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Personal Earnings of Married Man not Attachable for Groceries Furnished on His Order to His Mother.</p> <p>The word “necessaries” as used in the statute permitting the attachment of 10 per cent, of a debtor’s personal earnings when the claim is for necessaries, means necessaries for the debtor or his family, and the personal earnings of a married man can not be attached on a claim for groceries furnished on his order to his mother with whom he boarded before his marriage.</p>

<p>ELEVATORS — NEGLIGENCE—TRIAL.</p> <p>Negligence of Elevator Man Employed by Tenants of Building Occupied by Several Tenants Attributed to Tenant Using Elevator at Time of Accident.</p> <p>W was the owner of a four-story brick factory building, the entire fourth floor of which was leased to a box company and parts of other floors to a candy company. The building was supplied with a freight elevator, which was operated by a man employed jointly by the several tenants, who, respectively, deducted his wages from the amount of rent due from them each month. The tenant on the fourth floor had some bundles of paper carted to the building, a number of which were placed on a hand truck by the elevatorman, who ran the load on the elevator and raised it to the fourth floor, where the truck was made to tilt by one of the wheels running off the elevator, and a bundle of paper slid off the truck and through the window opening into the elevator shaft, and in falling to the street below struck and seriously injured the drayman who had brought the paper to the building. Held:</p> <p>1. That the candy company was not responsible for the condition of the elevator, which made it possible for one wheel of the truck to run off and cause the load to tilt; or for the open window; or for the alleged negligence of the elevator man, since at the time of the accident he was not employed in its service.</p> <p>2. That the owner of the building was responsible for the condition of the elevator and elevator shaft, but not for the alleged negligence of the elevator man.</p> <p>3. That the tenant of the fourth floor, to which the load was being taken, was responsible for any negligence of the elevator man in making use of the elevator in a manner and under, conditions which should have been known to him to be unsafe.</p> <p>4. The determination as ?o what in the negligent chain of causation was the proximate cause of the accident ghould be left to the jury, under instructions which relieve the owner of the building from liability for any independent cause of the accident which could not reasonably have been anticipated.</p>

<p>ABORTION — CRIMINAL LAW.</p> <p>1. Acquittal on One Count not a Bar to Second Trial Therein after Reversal of Conviction on other Count.</p> <p>When an accused has been-tried for abortion charged in two counts and found guilty upon one and not guilty upon the other, upon his second trial after reversal of the first judgment, it is not error to admit evidence as to his guilt under the charge as to which he was found not guilty at the first trial.</p> <p>2. Evidence Controlling Action in Most Important Affairs of Life Convincing Beyond Reasonable Doubt.</p> <p>In defining reasonable doubt it is not error to charge the jury that if they would act upon such evidence in the most important affairs of their lives, then it is safe to say that they have been convinced beyond a reasonable doubt.</p> <p>3. Jury Charged to Reason Together.</p> <p>It is not error to refuse to charge that each juror should continue to vote for acquittal, without fear, so long as he is not convicted beyond a reasonable doubt, but to charge them that they should reason together upon the evidence.</p>

<p>DESCENT AND DISTRIBUTION — WILLS.</p> <p>1. Real Estate of Wife Devised to Husband for Five Years and then in Fee Descends to His Heirs at His Death Prior to Expiration of such Period.</p> <p>A wife without children died leaving a will whereby she devised the income of her real estate for five years to her husband and provided that at the end of the five years said real estate should become his in absolute ownership; the husband died within the five years. Held: Said real estate descended to the heirs of the husband.</p> <p>2. Intestacy as to Part of Estate.</p> <p>One may leave a will and yet die intestate as to part of his property.</p>

<p>TRIAL — WAREHOUSEMEN.</p> <p>1. Petition in Action for Damages against Warehouseman for Injury to Goods Stored Sufficient without Alleging each Item of Damage.</p> <p>In an action against a warehouseman for damages to a piano and china closet stored with him, by reason of his-negligence in permitting the varnish on said articles to become checked, the veneering loosened, the ivory on the keys of the piano loosened, its metal rusted, etc., all to her damages in a certain sum, it is not error to overrule a motion to make the petition definite and certain by setting out after each item the amount of damage claimed therefor.</p> <p>2. Inference of Negligence to be Removed by Warehouseman.</p> <p>If goods are placed in the care of a warehouseman in a certain condition and are returned to the owner in a worse condition and one which would not ordinarily arise without negligence, an inference arises that the goods were damaged by the negligence of the warehouseman and under such circumstances it is not erroneous to charge that such inference of negligence must be removed by the warehouseman.</p> <p>3. Charge as to Absence of Party from Court Room.</p> <p>Under the facts of this case, the plaintiff having testified by deposition, being absent on a pleasure trip in California, it is not erroneous to charge that “the presence or absence of the parties in the court room should not influence you in the least.”</p> <p>4. Apportionment of Costs on Retrial Discretionary with Court.</p> <p>Upon reversal and retrial of a cause with the same result, it is not an abuse of discretion to refuse to apportion the cost.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Priority of inconsistent Petitions, One to Detach Territory and Another to Annex to City.</p> <p>A petition to detach territory from a village and erect it into a village was filed with the county commissioners before another petition to annex the greater part of said village, including the territory described in the first petition, to a city, was also filed with the commissioners, the second petition, however, being filed two days before the council of the village gave its assent to the detachment of territory prayed for in the first petition. Held: The two petitions being inconsistent, the second was entitled to be first heard.</p>

<p>ERROR — INTOXICATING LIQUORS.</p> <p>■ 1. Leave to file a petition in Error in Circuit Court to Review Jones Law Local Option.</p> <p>Leave to file a petition in error in the circuit court to the action of a mayor or judge upon a petition in favor of prohibiting the sale of liquor under the Jones law, must be granted by the court and not by a judge thereof.</p> <p>2. Transcript Must Accompany Petition in Error to Review Local Option Proceedings.</p> <p>With the petition in error in such cases must be filed a transcript of the final record or a transcript of the docket and journal entries, as required by Sec. 6716 R. S. (Sec. 12263 G. C.).</p> <p>3. Proceedings on Local Option Hearings Are Judicial, not Ministerial.</p> <p>The proceedings before the mayor or judge on such petitions are judicial and not ministerial; otherwise error would not lie to them.</p>

<p>INTOXICATING LIQUORS.</p> <p>1. Not Duplicity to Charge in One Count Keeping of Place for Sale of Liquors and Also Selling Them.</p> <p>In a prosecution for the violation of the liquor laws, an affidavit is not bad for duplicity which charges not only that the accused kept and used a wagon for the . selling, furnishing and giving away of intoxicating liquors as a beverage, but also that from it he sold, furnished and gave away such liquors.</p> <p>2. Evidence Unlawfully Obtained Under Search and Seizure Law may be Used in Prosecuting for Keeping Place for Sale of Liquors.</p> <p>It is no objection to the introduction of evidence in a prosecution for the violation of the liquor laws, that such evidence was' unlawfully obtained under the search and seizure law.</p>

<p>ERROR — JUDICIAL SALES.</p> <p>Confirmation of Sale not Reversed on Weight of Evidence.</p> <p>An order confirming a sale of real estate made by the sheriff will not be reversed on the weight of the evidence, when the evidence on the motion for confirmation was conflicting, for the trial judge is better able to consider the credibility of the witnesses than a reviewing court.</p>

<p>NEGLIGENCE — VEHICLES.</p> <p>Owner of Wagon Liable for Exercise of Bad Judgment by Driver in Collision between Car and Wagon.</p> <p>A judgment against a lumber company and in favor of a motorman on a street car who was injured by collision of his car with the lumber company’s wagon, will not be reversed on the weight of the evidence, when there is evidence tending to show that the driver of the lumber wagon was calculating upon a nicety when he turned in front of the approaching car, and should have used better judgment and waited until the car got by, for it could not turn out of the. track, while the wagon could.</p>

<p>POST OFFICE</p> <p>Presumption as to Manner of Mailing Letter.</p> <p>When a witness says that he mailed a letter, in the absence of any inquiry as to the mode in which he mailed it, it will, be presumed that he mailed it in accordance with the regulations of the post-office department.</p>

<p>BILLS AND NOTES.</p> <p>1. Amendment of Petition on Promissory Notes so as to Sue as Executor Instead of Individually.</p> <p>Petition to recover on promissory notes having been filed by one claiming to own the notes in her individual capacity, it is not error to permit her afterwards to amend her petition and sue as executrix of a deceased person and claim to own the notes as such executrix.</p> <p>2. Mere Denial that Plaintiff Was Owner of Notes not Denied of Right to Recover as Executrix.</p> <p>Plaintiff alleged that she was the owner of certain notes as executrix of a deceased person, setting up that the notes were endorsed to her decedent in his lifetime by the payee of the notes, before they were due, and that he was the owner and holder of them at his death. Defendant did not deny that plaintiff was such executrix or that the notes were so endorsed to her decedent or that he owned them at his death, but denied only that plaintiff was the owner of the notes. Held: No sufficient denial of the right of plaintiff to recover on the notes.</p> <p>3. Sending Written Requests to Charge to Jury in Their Retirement not Necessary.</p> <p>It is not necessary to send written requests to charge to the jury in their retirement unless they were presented before the argument.</p>

<p>PAYMENT — PLEADINGS.</p> <p>Instruction on Issue of Payment to Partner Proper though not Raised in Pleadings.</p> <p>In a suit to recover commissions for sale of real estate the answer denied that plaintiff made the sale, and alleged that a third person made the sale and was paid therefor. The reply alleged that whatever the third person had to do with the sale was as the agent of plaintiff. The court charged, among other things, that if the jury found that the third person was a partner of plaintiff, payment to him would be payment to plaintiff. The bill of exceptions not giving the evidence received in the case, Held: Competent evidence might have been received, without objection, that the third person was a partner of plaintiff, and so it was not error to charge upon that subject.</p>

<p>COMPENSATION AND SALARIES — OFFICE AND OFFICERS.</p> <p>Power of Council to Change Salary of Police Clerk after Enactment of Municipal Code.</p> <p>The salary of the clerk of the police court of the city of Cleveland elected at the first election after the municipal code went into effect, may be increased by the city council then in office.</p>

<p>BANKS AND BANKING — RECEIVER.</p> <p>1. Actual Knowledge of Insolvency by Officers Necessary to Recovery Back of Deposit in Insolvent Bank.</p> <p>A deposit made in an insolvent bank may be recovered back in an action against a receiver of tbe bank only when it is shown that at the time the deposit was received the officials of the bank knew or believed that it was insolvent.</p> <p>2. Checks and Drafts Deposited to Be Treated as Money.</p> <p>.Checks and drafts upon banks deposited with money and passed to the depositor’s credit are to be treated as becoming the property of the bank, raising the relation of debtor and creditor, unless there is an express agreement that they are deposited for collection only.</p>

<p>SALES — WORDS AND PHRASES.</p> <p>“Shortage” Refers to Quantity and not Quality of Apples Shipped.</p> <p>Upon receipt of a shipment of apples consignee wired: “Apples all varieties mixed. Too many bruised and spotted. Release car and if not too much shortage will send check in full. • Treat you right.” Consignor released the car, consignee sold the apples and remitted for the full quantity of apples shipped, but at a reduced price. In an action for the balance of the agreed price, Held: That the word “shortage” referred to the quantity and not the quality of the apples, and consignee having accepted and sold all the apples, must pay the agreed price for them.</p>

<p>ERROR — RAILROADS.</p> <p>1. Parol Evidence of Written Contract for Operating Trains over other Railroad Competent in Prosecution for Trains Occupying Crossings Over Time.</p> <p>The superintendent of a division of a railroad having testified in a prosecution for violation of an ordinance regulating the time a train may be permitted to stand across a street crossing, that his railroad had nothing to do with the operation of trains on the division where the crossing existed, it is error to refuse to consider his evidence to that effect when it subsequently develops in the trial that the traffic agreement with another railroad regulating control of trains at the place in question was in writing.</p> <p>2. Common Pleas Reviewing Conviction before Mayor Remands Case.</p> <p>Upon reversal by the common pleas of a judgment of conviction for violation of a municipal ordinance in a mayor’s court, the cause should be remanded to the mayor’s court for further proceedings, unless the ordinance in question is invalid, or no offense was charged in the affidavit.</p> <p>3. Municipality has Authority to Enact Ordinance Regulating Time Trains Occupy Crossings.</p> <p>A municipal corporation has authority to pass an ordinance regulating the time railroad trains may be permitted to stand across street crossings.</p>

<p>EVIDENCE — NEGLIGENCE.</p> <p>Expert Opinion Evidence Inadmissible as to Defect in Machinery not Complicated.</p> <p>It is improper to permit an expert witness to give his opinion as to whether it was safe to operate an ordinary foot brake which had been worn smooth through use, so that the foot was apt to slip off of it, there being nothing complicated about the brake, and the question being the ultimate fact for the jury to find from all the evidence in the ease.</p>

<p>MASTER AND SERVANT.</p> <p>1. Employer not Absolved from Negligence Liability by Letting of Job to Independent Contractor.</p> <p>An employer of labor can not absolve himself from liability for leaving a ditch on his premises unguarded, into which his employes are liable to fall and be injured, by showing that he let the contract for digging the ditch to an independent contractor.</p> <p>2 Terms of Verbal Contract for Jury and not to be Construed by Court. It is not for the court to construe the terms of a verbal contract but for the jury to determine what the terms of the contract are.</p>

<p>ERROR — VERDICT.</p> <p>Judgment Notwithstanding Verdict Held Error where Facts not Conceded.</p> <p>It is error to enter judgment for the defendant, notwithstanding, the verdict against him, although his defense is established by his own witnesses and they are not contradicted by the plaintiff. The jury may not believe the defendant’s witnesses. It is only upon the conceded facts of the case that a verdict may be directed or a judgment rendered notwithstanding the verdict.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Suit on Administrator’s Bond, by Distributee until Amount Due First be Liquidated.</p> <p>A suit can not be brought on an administrator’s bond by a widow to recover her share of the personal estate of her deceased husband, until her claim has been liquidated in either the probate or common pleas court, pursuant to Sections 6195 to 6200 R. S. (Secs. 10848 to 10855 G. C.)</p>

<p>OFFICE AND OFFICERS.</p> <p>Removal from Office for Frivolous Cause.</p> <p>Council of a municipality can not remove one of its members from office on the ground that he has married a wife in another place, outside of the municipality, who continues to reside there.</p>

<p>Appeal and Error.</p>

<p>TRUSTS AND TRUSTEES.</p> <p>Cestui may not Claim Trust Property Sold to Third Parties without Notice of Terms of Trust.</p> <p>When one receives a deed to certain real estate “in trust,” without any explanations in the deed itself as to terms and conditions of the trust, and later sells and conveys the property to a third person, those who claim to have been the beneficiaries of the trust have no interest in the property in the absence of any evidence showing that the purchasers had knowledge of the terms of the trust or that the trustee failed to account for the proceeds.</p>

<p>EXECUTORS AND ADMINISTRATORS — TAXES.</p> <p>1. Taxes on Real Estate Accruing after Death of Owner Held Debt of His Heirs.</p> <p>Taxes upon real estate accruing after the death of the owner are a personal debt of the heirs and when they have been paid by an administrator, he is entitled to retain the amount from funds in his hands belonging to the heirs.</p> <p>2. Administrator Who Has Paid Taxes may Recoup from Funds Belonging to Heirs.</p> <p>When an administrator is sued by the heirs of a decedent for rentals from real estate collected by him subsequent to the death of the decedent and it appears that the real estate in question has been sold by order of court and the administrator directed to pay the taxes thereon accrued after decedent’s death from the proceeds, he is entitled to set off the amount of such payment against the claim of the heirs for the rentals of the real estate collected by him.</p>

<p>SPECIAL LAWS.</p> <p>Proceedings Under Unconstitutional Special Law not Invalid if Conformable to General Statute.</p> <p>Proceedings under laws of general nature which are made to apply only to a certain locality are not invalid when laws applying to the whole state contain the same provisions as the laws in question.</p>

<p>MUNICIPAL CORPORATIONS — OFFICERS.</p> <p>1. Contracts Entered Into fay Unconstitutional Officers, How Validated.</p> <p>When a board of city hall commissioners appointed under an unconstitutional law have been employed or reappointed by the proper officers under a later constitutional act, their acts or contracts if approved by the appointing officers are valid and binding.</p> <p>2. Contract for Personal Service Requiring Skill need not be Advertised.</p> <p>When the contract to be entered into is for personal services of a kind requiring skill and technical learning the statutory pro-' vision that when the contract involves the expenditure of more than $500 it shall be advertised and bids received does not apply.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Property of Decedent Acquired after Decease not Set-off Against Administrator.</p> <p>When property of a decedent has come into one’s possession after the death of the decedent, no right of set-off exists in favor of that person, as against the personal representative.</p>

<p>HUSBAND AND WIFE.</p> <p>Jurisdiction of Circuit Court as to Property Rights Growing out of Marital Relation.</p> <p>While the circuit court has no jurisdiction to dissolve the marital relation, yet in a ease properly before it on appeal, it has full and complete jurisdiction to hear and determine all questions involving property rights growing out of the marital relation.</p>

<p>EVIDENCE — STREET RAILWAYS.</p> <p>1. Opinion Evidence Based Upon Results Inadmissible.</p> <p>When the opinion of a witness as to rate of speed of a car is based upon the results of a collision, his evidence should be excluded.</p> <p>2. Evidence Impeaching Witness Confined to Matter in Deposition.</p> <p>When evidence of one who was a witness at a former trial is taken by deposition, the evidence of one called to contradict him must be limited to matters about which he was examined when the deposition was taken.</p> <p>3. Instruction that Street Railway must Operate Cars under Control, Erroneous.</p> <p>It is error to charge that it is the duty of the company to operate its cars' in a safe manner and keep them under control.</p>

<p>NEGLIGENCE.</p> <p>Evidence for and against Negligence Equally Inferential Requires Withdrawal of Case.</p> <p>When the evidence as to the physical cause of an accident is largely inferential and would lead to an equally natural inference precluding negligence, it is the duty of the trial judge to withdraw the case from the consideration of the jury.</p>

<p>FRAUDULENT CONVEYANCES.</p> <p>1. Property Fraudulently Conveyed Subject to Payment of Judgment for Tort.</p> <p>One who holds a judgment against another for a wrong sounding in tort may maintain an action to set aside a conveyance in fraud of creditors.</p> <p>2. Creditor’s Right to Demand and Recover from Debtor.</p> <p>Any one is a creditor who has a right by law to demand and recover from another a sum of money on any account whatever.</p>

<p>WILLS.</p> <p>Transfer of Devisé and Trusteeship by Codicil Limited.-</p> <p>When the language of a codicil is, “Whereas in said will the one-third equal share in said property was devised, to my son N without the intervention of trusteeship, and whereas since the execution thereof good and sufficient reasons satisfy me that the same is required in his case as well as in that of his sister, now I do therefore revoke the said devise and bequest to him and do transfer the same to his wife and children instead”; Held: That the codicil, did not enlarge the trusteeship provided for the sister but transferred the devise from N to his wife and children.</p>

<p>PRINCIPAL AND AGENT.</p> <p>Agency is Question for Court when Evidence of Authority Is All in Writing.</p> <p>When all the evidence as to an agent’s authority is in writing, it is the duty of the court to construe it and instruct the jury whether or not the agent had authority to do the particular act in question.</p>

<p>CHARGE TO JURY.</p> <p>Sufficient Instruction to Disregard Evidence as to Injury not Averred.</p> <p>When evidence has been introduced concerning an injury not averred in the petition, and counsel for plaintiff subsequently asked the court to instruct the jury to disregard any claim made upon account of that particular injury, whereupon the court said to the jury: “Very well, gentlemen, counsel for plaintiff requests that the testimony regarding plaintiff’s deafness be withdrawn from your consideration,” it is a sufficient charge to disregard.</p>

<p>CHARGE TO JURY.</p> <p>Sufficient Caution to Jury to Disregard Questions Improperly Asked.</p> <p>A statement by the court that counsel has persistently asked improper questions, accompanied by a caution to the jury to disregard such questions and to draw no inference as to what the answer would have been had the witness been permitted to answer them, cures any error because of the misconduct of counsel.</p>

<p>WILLS.</p> <p>1. Nuncupative Wills, Invalid as to Real Estate, Valid as to Personalty.</p> <p>The fact that a nuncupative will attempts to dispose of both real and personal property does not make it invalid as to the personal property.</p> <p>2. Witness to Whom it is Attempted to Make Devise May be Disinterested.</p> <p>When the witnesses to a nuncupative will are also devisees of real estate under it, but there is no evidence tending to show that at the time the will was made they expected to benefit from it, it is error for the court to direct a verdict declaring the will invalid.</p>

<p>DAMAGES — EMINENT DOMAIN.</p> <p>1. Misconduct of Parties while Viewing Premises Sought to be Condemned for Railroad.</p> <p>When, upon a view of the premises, oneparty points out to the jury how it would he impossible for special damages to occur and the other points out how they might occur, both have been guilty of misconduct and the case should be re-tried.</p> <p>2. Substantial Injury Caused by Smoke, Noise and Sparks from Railroad Appropriation.</p> <p>In appropriation leases it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks occasioned by running locomotives and cars along the track in front of the property.</p>

<p>ATTORNEY AND CLIENT — DAMAGES.</p> <p>1. Attorney May Bring Action Immediately upon Breach of Contract and Full Damages for Term of Employment.</p> <p>Upon the breach of a contract employing an attorney for a term of years, he may bring his suit immediately, and recover in one action his full damages to the end of the term for which he was employed.</p> <p>2. Elements of Damages in Action by Attorney on Breach of Contract.</p> <p>In assessing the damages for a breach of contract for the services of an attorney covering a period of years, where suit is brought before the expiration of the period of employment, the jury should consider the probability or improbability of the attorney being able to perform his part of the contract, as well as the likelihood that he would be able to earn money at other work, inconsistent with his employment under the contract.</p>

<p>ATTACHMENT AND GARNISHMENT — BILL OF EXCEPTIONS.</p> <p>1. Attachment for Work and Labor Sustained though Trial Judge Sustained Judgment on other Grounds.</p> <p>In an attachment case when the affidavit alleges, and there is evidence tending to show that the claim is for work and labor, on error the judgment sustaining the attachment will be affirmed, though the trial judge sustained the attachment upon other grounds.</p> <p>2. Bill of Exceptions Certifying All Evidence Except Exceptions Allowed, not Considered.</p> <p>When the trial judge certifies that the bill of exceptions contains all the evidence, “except the testimony set out in plaintiff’s exceptions, which exceptions have been allowed,” and said exceptions are not allowed to the bill of exceptions, or in any manner made a part of it, the bill of exceptions can not be considered.'</p>

<p>APPEAL.</p> <p>No Appeal from Refusal to Strike Cross-Petition from Files.</p> <p>Overruling a motion to strike a cross-petition from the files is not a final order from which an appeal may be taken.</p>

<p>MASTER AND SERVANT.</p> <p>Injury Resulting from Careless Mending of Chain Assumed Risk.</p> <p>When the evidence shows conclusively that a servant familiar with the nature of the work upon which he was engaged was present while a broken chain was mended and saw how it was mended, and the chain again broke at the mended place allowing a load to fall upon and kill him, he must be deemed to have assumed the risk and it is the duty of the trial court to direct a verdict for defendant.</p>

<p>QUIET TITLE.</p> <p>1. Possession Sufficient to Quiet Title.</p> <p>A grantee who goes upon lands which are part of an open common and locates and measures the lots which he has purchased, intending thereby to take possession of them, although he leaves no physical impress of his presence upon the lots, is nevertheless in possession and may maintain an action to quiet title.</p> <p>2. Possession of Husband not Constructive Possession of Wife to Give Her Heirs Title.</p> <p>When the husband of a mortgagee was in possession of a larger tract of land including the mortgaged premises, at the time the mortgage was given, and remained in possession after condition broken, and until the death of the mortgagee, the possession of the husband can not be construed as the possession of the wife, so as to give her heirs legal title to the mortgaged premises.</p> <p>3. Heirs of Mortgagee Not in Possession Do Not Inherit Any Rights to Property.</p> <p>No rights of possession' pass to the heirs of a mortgagee not in possession.</p>

<p>EXECUTORS AND ADMINISTRATORS — GIFTS.</p> <p>1. Evidence of Delivery Insufficient to Establish Gift Causa Mortis Sufficient to Constitute Gift Inter Vivos.</p> <p>Evidence that donor handed donee a bank-book, telling her that it and the money it represented were hers, and that thereafter the donor took back the bank-book to make arrangements at the bank to secure the payment of the mone3 to the donee, after which it was never redelivered to the donee, while not establishing a gift causa mortis may be sufficient to establish a gift inter vivos.</p> <p>2. Evidence of Services Performed by Donee Competent to Show Motive for Gift.</p> <p>Evidence of services performed by the donee for the donor of an alleged gift is competent as showing the relationship between the parties, a motive for the gift and an intention to make one.</p>

<p>APPEALS — COURT.</p> <p>1. No Appeals from Justice of the Peace to Insolvency Court.</p> <p>The insolvency court of Cuyahoga county has ho jurisdiction to entertain appeals direct from justice courts.</p> <p>2. Jurisdiction of Subject-Matter not Conferred by Consent of Parties.</p> <p>Jurisdiction of a subject-matter can not be conferred on a court by consent of parties.</p>

<p>SALES — TENDER.</p> <p>Unreasonable Delay in Tender Back of Goods on Rescission for Breach of Warranty.</p> <p>When vendee claims a breach of warranty and rescission of a contract of sale with a tender back of the goods, evidence consisting of correspondence between the parties at a time six months before the goods were tendered back, in which vendor denies the existence of a warranty, shows an unreasonable delay in making the tender back and defeats vendee’s right to recover the purchase price.</p>

<p>BIGAMY.</p> <p>1. Second Marriage after Five Years Continuous Absence of First Spouse not Bigamy.</p> <p>When the first spouse of one accused of bigamy had been continually absent for five successive years next before the second marriage, without being known to be living within that time, the defendant is not guilty of bigamy.</p> <p>2. Statute Exception of Five Years'Continuous Absence of Spouse Exempts Showing of Due Diligence in Ascertaining Whereabouts before Second Marriage.</p> <p>When defendant relies upon the fact that the first spouse had been absent for more than five years next preceding her second marriage, without being known to be living,, the statutory exception relieves her of the burden of showing that she used due diligence to ascertain the whereabouts of her first husband as at common law.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Statute Prescribing Time for Presentation of Claims and Commencement of Actions against Personal Representatives not Available after Long Delay in Asserting.</p> <p>When a petition against an administrator does not show that the claim was presented and disallowed, or that the necessary time has preceded the commencement of the action, and the administrator makes no objection either by demurrer or answer, but goes to trial upon an answer denying the validity of the claim, it is too late after several trials have been had and costs incurred, for him to raise that issue by demurring to an amended petition.</p>

<p>JUDGMENT AND DECREES.</p> <p>1. Petition to Vacate Judgment after Term Filed as Independent Action.</p> <p>A petition to vacate a judgment after term may be filed as an independent action.</p> <p>2. Retaining Attorney to Defend Action Sufficient Ground for Vacating Default Judgment.</p> <p>The fact that defendant had retained an attorney to defend the action, had filed an answer, and been assured by her counsel that the case would not be reached for three years, after which she removed from the city, holding herself in readiness to return upon notice from her attorney, and that the attorney without notifying her withdrew from the case and allowed it to go to trial without defense, constitutes sufficient grounds for vacating the judgment after term.</p>

<p>WILLS.</p> <p>1. Acknowledgment of Will Includes Acknowledgment of Signature.</p> <p>An acknowledgment by a testator that a paper already signed by her was her will, would include an acknowledgment of her signature to such paper.</p> <p>2. Acknowledgment of Will not Required in Presence of both Witnesses at Same Time.</p> <p>It is not necessary that an acknowledgment be made in the presence of both witnesses at the same time, or by any particular form of words.</p>

<p>SALES.</p> <p>Buyer May not Reject Article Tendered Because of Quality, if Presence of Foreign Matter Trifling in Amount.</p> <p>In the sale of articles not intended for a particular designated purpose,' hut only for resale, the presence in or among the articles tendered of a trifling amount of foreign or defective matter will not warrant the buyer in refusing the tender.</p>

<p>CORPORATIONS.</p> <p>Recovery May be Had Quantum Meruit against Corporation but not Stockholders, under Parol Contract with Both.</p> <p>When under a void parol contract for services Avith a corporation and with individual stockholders of the corporation, by which the corporation agreed to pay a certain sum and the stockholders other sums, plaintiff' enters into the employment of the corporation and performs services, he can recover upon a quantum meruit as against the corporation but not as against the stockholders.</p>

<p>PLEADING — TKIAL.</p> <p>Answer Denying any Consideration for Note upon which Action is Brought in Short Form Requires Reply.</p> <p>When a petition filed by the payee declares upon a promissory note in the short form and the answer avers that the note was obtained without any consideration whatsoever, in the absence of any reply by plaintiff the defendant is entitled to a judgment on the pleadings.</p>

<p>MUNICIPAL CORPORATIONS — BONDS.</p> <p>Municipal Bonds Subject to the Longworth Act.</p> <p>Bonds of municipal corporations issued to abolish grade crossings under authority of act 95 O. L., 356, and bonds to pay the municipality’s portion of street and sewer improvements, are both subject to the provisions of the Longworth act. Section 2835, Revised Statutes.</p>

<p>MASTER AND SERVANT.</p> <p>Necessity of Proving Master’s Knowledge of Dangerous Condition of Work and Servant’s Absence of Such Knowledge.</p> <p>When a servant’s action for damages for injuries is predicated upon the dangerous condition of the place where he was working, he can not maintain his action without introducing some evidence tending to prove that the master had knowledge of the condition and that he did not.</p>

<p>STREET RAILWAYS.</p> <p>Driving from Back of Car on One Track and in Front of Car Approaching, Contributory Negligence.</p> <p>One who drives behind a car upon one track of a street railway and in front of an approaching car upon the other track, is guilty of contributory negligence.</p>

<p>HUSBAND AND WIFE.</p> <p>Wife’s Acceptance of Contract by Acquiescence.</p> <p>When a party who had been extending credit to a dealer tells him and his wife in the presence of each other that in the future no goods will be supplied them except for cash or upon their joint account, and the wife remains silent, both then and later when goods were delivered and bills sent to her and her husband charging them jointly: Held, that under the circumstances her silence amounted to an acceptance of the oiler to sell upon the joint account of herself and husband.</p>

<p>BUILDINGS — COVENANTS—INJUNCTIONS.</p> <p>Building Restrictions not Enforceable when without Equity.</p> <p>When plaintiff’s lot was sold to him without restrictive covenants, and defendant owns the next two lots, the deed for one of which contains restrictive covenants, which are not in the deed for the other, plaintiff can not enjoin defendant from building upon both lots though as to one lot the building will be a violation of the covenant in the deed.</p>

<p>CONTRACTS — TIME.</p> <p>1. Contract for Gross Quantity of Goods Delivered within Certain Time Held Entire though Shipped in Installments.</p> <p>A contract for a gross amount of goods to he delivered within a certain time after specifications are received is an entire contract although the parties may contemplate shipping in installments.</p> <p>2. Failure to Perform by One Party Demanding Strict Performance Waives Time Provision.</p> <p>When one party to a contract demands strict performance as to time, he must perform on his part, and a failure to do so operates as a waiver of the time provision.</p>

<p>DITCHES.</p> <p>Property Owner Failing to Make Claim for Damages Can Not Enjoin Construction of County Ditch Improvement.</p> <p>When county commissioners have followed the course prescribed by statutes in fixing a day for hearing applications for damages for land appropriated for or affected by a ditch improvement, a property owner who has failed to make claim for damages, is deemed to have waived them and can not enjoin the depositing of soil taken from the ditch upon his land when the work is being done in the usual manner.</p>

<p>APPEALS.</p> <p>Action for Possession of Property in Hands of Receiver is Appealable.</p> <p>A claim to recover property in the hands of a receiver, made and determined in an equitable action in which the receiver was appointed, is appealable.</p>

<p>BANKRUPTCY.</p> <p>Payments Made within Four Months of Bankruptcy not Amounting to Preference.</p> <p>When a creditor advances money to a bankrupt to enable him to carry out a contract with a third- party and receives notes therefor more than four months before the act of bankruptcy, upon a verbal agreement that the third party shall pay the creditor such sums as may become due by reason of the performance of his contract by the bankrupt, which payments shall be applied upon the notes, payments made in pursuance thereof less than four months before the act of bankruptcy do not amount to a preference.</p>

<p>ACTION — PLEADINGS.</p> <p>Action Ex Delicto as for Waste not Maintainable where Petition is Ex Contractu.</p> <p>When by her petition the plaintiff seeks to charge defendant for waste under the covenants of a lease, and her evidence fails to prove any contract of lease binding upon the defendant, evidence tending to show the defendant liable ex delicto as for waste committed is not admissible.</p>

<p>APPEAL.</p> <p>Proceedings in Aid of Execution before J. P., Appealable.</p> <p>Proceedings in aid of execution, brought before a justice of the peace against a judgment debtor, may be appealed by him to the common pleas court.</p>

<p>ACCOUNTS — LIMITATIONS.</p> <p>1. Part Payment of Greater Debt Essential to Defeat Limitations.</p> <p>It must affirmatively appear that the payment relied upon as defeating the statute of limitations was a part payment of a greater debt and not a somplete satisfaction of the debt.</p> <p>2. Action Begun on Sixth Anniversary of Date of Obligation Sufficient.</p> <p>Actions on a book account may be begun on the sixth anniversary of the date when the obligation was incurred.</p>

<p>CONTRACTS.</p> <p>Withdrawal of Written Proposition Before Acceptance and New Agreement Made.</p> <p>A written offer not accepted by plaintiff is withdrawn when plaintiff and defendant at a later time make a verbal contract concerning the same subject matter upon different terms from those embodied in the first offer.</p>

<p>DIVORCE AND ALIMONY.</p> <p>Alimony to an Invalid Husband.</p> <p>When a husband was dying of consumption and wife strong and healthy, with property worth $5,000, court awarded him $600, and $30 per month for four years should he live that length of time.</p>

<p>FORCIBLE ENTRY AND DETAINER — LANDLORD AND TENANT.</p> <p>Forfeiture of Lease for. Gambling and Illegal Traffic in Intoxicating Liquors.</p> <p>When forfeiture of a lease was sought on grounds that the tenant had allowed gambling and unlawful sales of liquor on premises, and the jury found generally in favor of plaintiff, the higher court can not review the case if there was any evidence tending to show that gambling was carried on and there was no error in the charge as to that branch of the case.</p>

<p>ANIMALS — HEALTH.</p> <p>Property in Carcasses of Dead Animals.</p> <p>The right of municipal corporation to regulate the disposal of dead animals is limited to the reasonable necessities of the public health and welfare, and can not be so exercised as to deprive the owner of his property in the carcasses.</p>

<p>MASTER AND SERVANT.</p> <p>Risk Assumed by Workman by Using Defective Materials to Construct Place to Work.</p> <p>When a workman had used defective materials in erecting a scaffold and was afterwards injured by its collapse, the fact that he had called the foreman’s attention to the defective material and been assured by him that it was all right, does not obviate the workman’s assumption of risk.</p>

<p>BENEFICIAL ASSOCIATIONS.</p> <p>Remedy of One Expelled from Beneficial Society.</p> <p>When one has been expelled from membership in a fraternal or beneficial organization, he must exhaust all remedies provided within the organization before appealing to the courts.</p>

<p>ASSESSMENTS.</p> <p>1. Abutter not Estopped from Enjoining Collection of Assessment by Signing Petition for Improvement.</p> <p>A property owner is not estopped from enjoining the collection of an assessment illegally levied against his property, because he had signed a petition asking for the improvement to pay for which the assessment is levied. ,</p> <p>2. Injunction Lies for Failure to Afford Abutter Opportunity to Build Sidewalk.'</p> <p>A property owner must be given an opportunity to elect whether or not he will build a sidewalk in front of his premises, and may enjoin the collection of an assessment to pay for one built by the city when not given such opportunity.</p>

<p>INSOLVENT DEBTORS.</p> <p>Acceptance of Payment by Creditor from Insolvent Debtor.</p> <p>Section 6343 R. S. (Sec. 11102 G. C. et. seq.), as amended by 95 O. L. 608, does not alter the rule of Cross v. Carstone, 49 Ohio St. 548, that a creditor may accept payment as security from an insolvent debtor, so long as it is not obtained for the benefit of a third party also.</p>

<p>EVIDENCE — SALES.</p> <p>Result of Laboratory Test of Goods Sold on Warranty Admissible.</p> <p>In an action for the price of manufactured goods sold on warranty, evidence of laboratory tests of the goods delivered is admissible.</p>

<p>EASEMENTS — INJUNCTION—RAILROADS.</p> <p>1. Railway Liable to Abutter for Bridge Construction in Highway Interfering with Easement of Access.</p> <p>The easement of access to an abutting lot from the street is property within the meaning of Art. 1, Sec. 19, of the state constitution and when a highway crosses a railroad track by means of a bridge, the railroad in constructing the bridge and approaches thereto becomes liable to an abutting lot owner, whose easement of access to his property is injured by the throwing up of an embankment in the street in front thereof.</p> <p>2. Laches Preventing Owner from Reclaiming Property Taken.</p> <p>Public policy may require a court to hold that an "owner, who has delayed the assertion of his rights until public considerations have intervened, has forfeited the right to reclaim property taken and is remitted to his rights of compensation.</p> <p>3. County Commissioners and Railroads May Agree as to Manner of Crossing Highways.</p> <p>County commissioners are not precluded by Sec. 3337-17k. R. S. (Sec. 8896 G. C.) which provides that except in certain cases new lines of railroad shall cross highways above or below grade, from making a contract as to the manner of crossing a highway under the provisions of Sec. 3283 R. S. (Sec. 8763 G. C.), providing that public officers and railroads may agree upon the terms upon which railroads may occupy public property.</p>

<p>PAYMENTS.</p> <p>Application of Payments without Obligation Designated.</p> <p>When the debtor makes a payment to the creditor to whom he owes two obligations, one not yet due and the other past due, without specifying upon which the payment is to be applied, the creditor must apply it to the payment of the obligation which is due.</p>

<p>HIGHWAYS.</p> <p>Property Owner Has no Claim for Compensation for Vacation of Street, when.</p> <p>A property owner on a street or alley, a portion of which other than that on which he abuts is vacated by the city council, has no right to compensation when he has reasonable access to his property by other streets and alleys, although the distance he may have to travel in some directions may be greater than before the vacation.</p>

<p>MASTER AND SERVANT.</p> <p>Servant May Rely on Assurance Defective Machinery has been Repaired,</p> <p>When a workman on a drill press notifies his employer of a defect in the machinery which allows the drill press to fall when not in use, and quits work until assured by the foreman that the defect has been removed, and after returning to work is injured by the same defect; Held, That, in the absence of contributory negligence, the master is liable.</p> <p>2. Failure to Observe Defect Remains after Assurance of Repair, Question of Contributory Negligence for Jury.</p> <p>The question as to whether the employe was guilty of contributory negligence is not observing that the defect still remained and in not swinging the drill clear of the base when not operating it are questions for the jury.</p>

<p>MASTER AND SERVANT — STREET RAILWAYS.</p> <p>Master Liable for Assault Made by Servant While Acting within Scope of Employment.</p> <p>A petition which recites that plaintiff while a passenger on defendant’s car was assaulted by its servants while in the course of their employment states a cause of action.</p>

<p>HUSBAND AND WIFE — TRUSTS AND TRUSTEES.</p> <p>False Representation by Husband as Trustee that He Is Owner oí Property of Wife does not Subject Property to Satisfy His Debts.</p> <p>When a husband holds the record title of real estate belonging to his wife, represents to his creditors that he is the owner of the property, but his wife did not know of, or join in, these representations, the husband’s creditors can not subject the property to the payment of his debts.</p>

<p>DIVORCE AND ALIMONY.</p> <p>Divorce Under Constructive Service not Governed by Rule Regulating Opening Judgments.</p> <p>Section 5355, R. S. (Sec. 11632 G. C.), which provides for the opening up of judgments obtained on constructive service does not apply to divorce decrees.</p>

<p>CONTEACTS — SALES.</p> <p>1. Stokers Kept by Purchaser for Six Months with Seller Working to Make Satisfactory, Deficient.</p> <p>A contract providing that stokers sold should he satisfactory to the defendant, is not complied with, though the defendant kept’ and used them for over six months, it appearing that all that time plaintiff was working upon them, trying to make them satisfactory, but failing therein.</p> <p>2. Letter of Managing Officer to Third Person Recommending Goods, not Admissible against Corporation.</p> <p>A letter written by the managing officer of a corporation to a third person, recommending the kind of stokers his corporation had purchased is not admissible in evidence in an action against his corporation for the value of the stokers furnished it, on the proposition that it was satisfied with said stokers.</p>

<p>LANDLORD AND TENANT — VERDICT.</p> <p>Tenant not Liable for Unauthorized Occupancy by Subtenant of Adjoining Premises.</p> <p>A lessee of land adjoining premises of his own upon which are tenements used by his own tenants can not be held for occupancy of said adjoining premises after termination of the lease thereof, simply because his tenants continued to make use of said adjoining land, unless it be shown that they did so with his knowledge and consent.</p> <p>2. Special Findings not Framed to Test General Verdict Refused.</p> <p>It is not error to refuse to direct the jury to make special findings reguested in the event they bring in a general verdict, if the special findings submitted are not so framed as to test the general verdict.</p>