Volume 32 — Ohio Circuit Court Decisions

<p>BILLS AND NOTES — MORTGAGES—REFORMATION OF INSTRUMENTS.</p> <p>1. Mortgage may be Reformed in Hands of Assignee.</p> <p>A mortgage is not a negotiable instrument, though it secures one; hence a mortgage held by an assignee of it may be reformed, it the equities between the original parties to it authorize its reformation.</p> <p>2. Claim of Maker against Payee of Negotiable Note Can Not be Set Off against Holder in Due Course.</p> <p>A claim of a maker of a promissory note against the payee can not be set off against a holder of the note in due course.</p>

<p>MORTGAGES — RECORD.</p> <p>Record Best Evidence of Priorities and Burden of Proof is on Contestant to Show Different Priority.</p> <p>When the record shows the priorities of mortgages, the burden of proof is upon the one asserting a different priority to prove it, and when the evidence leaves the point doubtful the priorities will be adjudged according to the record.</p>

<p>BASTARDS.</p> <p>1. Short Period of Gestation not Conclusive of Innocence of Putative Father.</p> <p>It is not conclusive that one charged with being the father of a bastard child is not guilty, that the period of gestation was only 259 days.</p> <p>2. Resemblance of Bastard to Putative Father Determined by Jury on Exhibition of Child.</p> <p>When the bastard child, two years old, was exhibited to the jury to show its resemblance to its putative father, a reviewing court will be loath to reverse a judgment against him on the weight of the evidence.</p>

<p>MASTER AND SERVANT.</p> <p>Rule of Assumed Risk in Force.</p> <p>The rule of assumed risk is in force in Ohio until the legislature changes it.</p>

<p>CORPORATIONS.</p> <p>Requirement that Stockholder Must Continue in Certain Line of Business Unlawful.</p> <p>A provision in the constitution and by-laws of a corporation for profit and printed upon its certificates of stock, that a stockholder shall cease to be such and his stock be returned to the company and its face value be refunded to him upon his ceasing to be engaged in a particular business, is unlawful and unenforceable.</p>

<p>APPEALS.</p> <p>Judgment upon Transcript upon Dismissal from Justice Court Erroneous.</p> <p>In a case appealed from a justice of the peace to the common pleas court, upon dismissal of the appeal for failure of the defendant to comply with an order to give an additional appeal bond, it is error for .the court of common pleas to thereafter enter judgment for the plaintiff upon the transcript filed in such dismissed . case.</p>

<p>RAILROADS.</p> <p>Pedestrian at Railway Crossing to Look Both Ways at Each Track.</p> <p>A pedestrian crossing several railroad tracks at a street crossing should look both ways just before going upon each track, if there is time so to do.</p>

<p>CONTEMPTS — CORPORATION—INJUNCTION.</p> <p>1. Presumption that Final Judgment not Rendered when Supplemental Petition Filed.</p> <p>When a supplemental petition is filed in a case and judgment rendered upon it, it will be presumed that final judgment had not been rendered on the original petition and the case disposed of so as to preclude further judgment in the case, unless the record affirmatively shows the contrary.</p> <p>2. Injunction Bond Given by Corporation Signed by Attorney not) Officer not Invalid if Proper Sureties Have Signed.</p> <p>An injunction bond is not invalid because given by a corporation, the name of which is signed to tbe bond by its attorney of record, not an officer of the corporation, provided proper sureties have signed the bond as provided by law.</p> <p>3. Confinement in Jail for Ten Days Excessive for Violation of Injunction.</p> <p>Confinement in jail for ten days as punishment for violating an order of injunction is excessive punishment not authorized by Sec. 5581 R. S. (Secs. 11887 G. C. et seq.)</p>

<p>BRIDGES — TAXES.</p> <p>Act Relating to Taxes for Bridge Purposes Unconstitutional.</p> <p>That part of Sec. 2824 R. S. (See Sec. 5635 G. C.), which provides “that in all cities of the second grade of the first class, and all cities of the second class, one-half of the proportion of said bridge fund collected (under a levy by the county commissioners) upon the property within said cities, in all cases where the city council shall demand it, shall be paid into the city treasury, and shall be expended by such city for the purpose of building repairing bridges,” is unconstitutional._</p>

<p>JUSTICE OF THE PEACE.</p> <p>Justice of the Peace in New Township Holds until Successor Elected at First Township Election.</p> <p>A justice of the peace elected in a new township at a special election held on a day fixed by the common pleas court, pursuant to Sec. 566 R. S. (Sec. 1712 G-. C.), holds office until the election of a successor at the first general township election thereafter held.</p>

<p>JUDGMENTS AND DECREES.</p> <p>Correction of Judgment'to Conform to Actual Judgment by Nunc ProTunc Entry after Term.</p> <p>A court has power after the term, by a nunc pro tunc entry, or otherwise, to amend and modify its judgments or decrees, or the entries thereof, so as to correct clerical errors and mate the entries conform to the judgments and decrees actually rendered.</p>

<p>DEEDS — ESTOPPEL.</p> <p>Grantor Estopped to Ask that Invalid Deeds be Set Aside.</p> <p>In an action to set aside deeds because of their invalidity under the law, relief will be denied the plaintiff when it appears that he has not been wronged or defrauded; that he actively brought about the very situation of which he complains; that he took no prompt steps to notify the defendants of the defect in their title; but stood by while they expended money on the property and made no offer to place the defendants in statu quo.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>1. Attachment for Services Rendered Non-resident.</p> <p>Attachment will lie in an action for services rendered a nonresident.</p> <p>2. Sufficient Service on Garnishee to Sustain Attachment.</p> <p>Service upon a garnishee requiring it to answer whether it has in its hands, either individually or as receiver money belonging to the debtor, is sufficient to sustain an attachment.</p> <p>3. Sufficient to Show Possession in Garnishee of Funds Belonging to Debtor.</p> <p>In an action against a garnishee it is sufficient to show that at the time service was had upon him he had in his possession property belonging to the debtor.</p>

<p>PARTITION.</p> <p>1. Commissioners in Partition not Disqualified because of Decided Views of Property Value.</p> <p>Commissioners in partition are not disqualified to act because they have decided views of the value of the land to be aparted and have previously expressed such view, provided they are otherwise disinterested, as required by the statute.</p> <p>2. Before Partition Set Aside Commissioners' Discretion Should Show Plainly Abused.</p> <p>Commissioners in partition are by law required to make a division of the land in an equitable manner, and before their award will be set aside, it must appear clearly that the discretion thus vested in them has been plainly abused, or that they have made a manifest mistake.</p>

<p>LANDLORD AND TENANT.</p> <p>Tardy Notice of Desire to Renew Lease.</p> <p>A stipulation in a lease terminating December 31, 1909, for its renewal for three years, “provided said party of the second part shall demand such renewal at least five days before the expiration of his lease,” is not complied with by a letter written December 27, 1909, and received by the landlord December 29,1909.</p>

<p>EXEMPTIONS — MANDAMUS.</p> <p>Mandamus not Proper Remedy to Enforce Homestead Rights.</p> <p>Mandamus is not the proper remedy by which to require the sheriff to set off a homstead in lands under an order of sale in his hands.</p>

<p>CRIMINAL LAW — VARIANCE.</p> <p>Variance in Number of House Fatal in Prostitution Case.</p> <p>When an indictment alleges that the accused induced a female person under eighteen years of age to enter a house of ill-fame for the purpose of prostitution, and described the house as No. 501 Hamilton avenue, in the city of Cleveland, and the only proof is that he induced her to enter No. 415 Hamilton avenue in the city of Cleveland, the variance between the allegation and the proof is fatal.</p>

<p>COVENANTS — ESTOPPEL.</p> <p>1. Conflicting Building Restrictions Reconciled to Express Parties' Intentions.</p> <p>Conflicting building restrictions in a deed must be reconciled ac- ■ cording to the manifest intention of the parties.</p> <p>2. Party Induced to Delay Bringing Action by Adversary not Estoppel.</p> <p>Laches or estoppel can not be claimed against a plaintiff who has been induced to delay bringing suit by the conduct of the defendant.</p>

<p>CRIMINAL LAW.</p> <p>Conviction Clearly Established by Accused’s Evidence not Reversed for Inadvertent Error in Charge to Jury.</p> <p>• When it is manifest from the record, by the defendant’s own testimony, that he was clearly guilty of the offense charged in the indictment, a judgment of conviction will not be reversed for error in the charge due to an unintentional mistake in the use of language by the trial judge, apparent to everybody, jury and all alike, it being certain that a new trial would result only in another conviction.</p>

<p>CBIMXNAL LAW.</p> <p>1. Modification of Sentence in Felony Case during Term in Discretion of Court.</p> <p>When a court, in passing sentence for a felony or a misdemeanor, has acted under a misapprehension of the facts necessary and ■ proper to he known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law.</p> <p>2. Journal Evidence of Sentence.</p> <p>The journal is the proper evidence of the sentence actually imposed in a criminal case, and it can not be contradicted by a bill of exceptions.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Burden of Proof as to Source of Funds Invested by Widow, Adminis* tratrix of Deceased Consort.</p> <p>Proof that a widow, administratrix of her husband’s estate, as such received assets of greater value than the property of which she herself subsequently died seized, makes a prima facie ease that she invested part of the assets of her husband’s estate in the real property standing in her name at her death. This case must be met by evidence of equal weight or countervailing force, and it is therefore incumbent upon the defendants who claim as her heirs, to introduce some evidence tending to show that she bought said real estate with her own means.</p>

<p>CHARGE TO JURY — NEGLIGENCE.</p> <p>Instructions that no Presumption of Negligence Arises against Either Party and Burden is on Plaintiff to Remove Presumption of Contrir butory Negligence, Inconsistent.</p> <p>An instruction that, if the testimony introduced by the plaintiff raises in your minds a presumption that he was guilty of contributory negligence the burden is upon him to remove it, and the further instruction that no presumption of negligence arises against either party are inconsistent and prejudicial.</p>

<p>BUILDINGS — NUISANCES.</p> <p>Violation of Building Code Creates no Civil Liability to Adjacent Proprietor as for Nuisance.</p> <p>The violation of a municipal building code by one proprietor of lands therein, not being a nuisance, does not create a civil liability in favor of his neighbor who claims he is being injured thereby.</p>

<p>JUDGMENTS.</p> <p>Refusal to Vacate Judgment during Term for Negligence of Counsel not Abuse of Discretion. ■</p> <p>The vacation of a judgment during term is within the discretion of the court and it is not an abuse of such discretion to refuse to vacate a judgment when the only ground for vacation is that counsel were negligent in attending to the trial of the case.</p>

<p>RAILROADS.</p> <p>1. Coupler Becoming Defective after Train in Transit not Cause for Statutory Penalty.</p> <p>A judgment against a railroad company for a penalty for violation of the provisions of Sec. 8950 G. C.., making it unlawful to haul a car not equipped with a coupler which can be uncoupled without the necessity of men going between the ends of the car, will be reversed when the evidence shows that the coupler complained of became out of order after the train was made up and started and the defect being immediately discovered, the car was watched until it reached the first point where the coupler could be repaired and was there cut out and the coupler repaired.</p> <p>2. Skilled Repairers and Proper Facts not Required on Trains.</p> <p>A railroad company is not required to have on every train it operates, sufficient and proper tools and skilled workmen so that it can repair all defects which may suddenly occur in any of the appliances which by law it is required to have upon its cars and locomotives.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Evidence of Prior Accidents at Same Place Received in Case of Negligently Failing to Guard Defect in Street.</p> <p>In an action against a municipal corporation for damages suffered through its negligence in failing to properly guard an excavation in the street, evidence of prior accidents at same place may be received for the purpose of charging the municipality with notice of the conditions existing at the place in question; and this is so, even though actual notice of such prior accidents is not brought home to the proper municipal authorities.</p>

<p>SALES.</p> <p>1. Agreement of Seller to Repurchase Certificate of Stock If Tendered by Purchaser.</p> <p>A proposition by the seller of stock made to the buyer, that he will repurchase the stock within one year, if the buyer so desires, becomes a contract, upon sufficient consideration, if, within the year, the buyer evinces to the seller his desire to transfer the stock to him and tenders it.</p> <p>2. Allegation that Stock Was Tendered Includes All Essentials to Ownership though Certificates not Endorsed.</p> <p>While a tender of certificates of stock may not be sufficient unless they are properly endorsed, or unless coupled with an offer to transfer the stock on the books of the corporation, still, an allegation that the plaintiff tendered the “stock” itself, necessarily includes all things essential to the ownership of it. 1</p>

<p>DAMAGES — VERDICT.</p> <p>Cross-Petition Dismissed when Proof of Circumstances from which Inference of Damages Occasioned Resulted may be Drawn Either Way.</p> <p>In an action on a contract for building a break-water for the protection of the shore of land on Lake Erie, in which the defendant by cross-competition claims damages by reason of dilatory and defective work, it is not error to dismiss said cross-petition for want of direct evidence that the damage to his land was caused by delay or defects in the construction of the break-water, when the evidence only shows circumstances from which the fact that such damages were so occasioned is not a more natural inference than that they resulted from some other cause.,</p>

<p>ACCOUNTING — QUIET TITLE.</p> <p>Cross-Petitioner can not Prevent Dismissal of Action to Quiet Title and Demand Accounting.</p> <p>When a plaintiff in an action to quiet title desires to dismiss her case, a defendant who by cross-petition asks for an accounting of her equitable interest in the property under a trust can not keep the case in court, the plaintiff trustee not yet having rendered an account of her trust to the proper court.</p>

<p>LANDLORD AND TENANT.</p> <p>1. One Cotenant not Bound by Other Lessee Holding Over after Lease Termination.</p> <p>One of two lessees named in a lease can not, by merely holding over after termination of the term of the lease, bind his cotenant for payment of rent, said cotenant not participating in the actual occupancy of the premises after termination of the term fixed by the original lease to which he was a party.</p> <p>2. Owner’s Right to Maintain Action for Rent Accruing after Expiration of Lease Does not Accrue by Implication to Agent.</p> <p>One who sues under favor of Sec. 4995 R. S. (Sec. 11244 G. C.), not as the real party in interest but as the agent with whom and in whose name, as lessor, the original written contract of lease was made, can not maintain an action for rent accruing after the expiration of the express agreement and while the tenant continues as such, merely holding over.</p>

<p>SPECIFIC PERFORMANCE.</p> <p>1. Contract for Sale of Realty Must be Enforceable against Both Parties.</p> <p>A contract for the sale of realty is not specifically enforceable in equity at the suit of either party, unless it be enforceable also at the suit of the other.</p> <p>2. Discretion to Refuse Specific Performance for Want of Clearness or Unfairness.</p> <p>In such suit, if it appears that there is any want of clearness, or any unfairness in the contract so sought to be enforced, it rests in the sound discretion of a court of equity to refuse specific performance.</p>

<p>ERROR — MASTER AND SERVANT.</p> <p>1. Comment on Matters not in Evidence without Admonition or Retraction Reversible Error.</p> <p>Misconduct of counsel in commenting upon matters not in evidence, without admonition of the court or retraction by counsel, is reversible error.</p> <p>2. Duty of Employer to Furnish Safe Place Measured by Ordinary care.</p> <p>In an action for wrongful death it is error to charge the jury that it is .the duty of the employer to furnish a safe place to work and suitable tools for carrying-on the work. Ordinary care is the measure of this duty.</p>

<p>PRINCIPAL AND SURETY.</p> <p>1, Principal Held Proper Party in Action Against Surety on Same Obligation.</p> <p>Because a judgment against a surety binds the principal having notice of the pending action, and payment thereof by the former may be recouped from the latter, in a suit against the surety alone, the principal has “an interest in the controversy adverse to the plaintiff,” and may therefore become a party defendant.</p> <p>2, Principal Let In as Party Defendant in Action against Surety May Litigate Counter-claim Notwithstanding Dismissed by Plaintiff.</p> <p>Having so become a party defendant, the principal’s answer may contain not only a denial or other strictly defensive matter, but a counter-claim against the plaintiff, and the plaintiff can not thereafter, by dismissing his action, prevent the principal from litigating its counter-claim.</p> <p>3. Contract Attached to but Made Part of Pleading not Considered on Demurrer.</p> <p>When a contract attached to a pleading is not made a part of it, it can not, on demurrer, be looked to as varying the allegations with respect to the contract set up in the pleading proper.</p>

<p>INNKEEPERS.</p> <p>Hotel Keeper’s Liability for Theft by Employe Based on Fact that Employe Must be Engaged in Master’s Business, or Plaintiff is Guest, not Boarder.</p> <p>One who has property stolen from him in a hotel by an employe of the proprietor of the hotel, in order to recover in an action against the proprietor must show, either that the dishonest employe stole when engaged in his master’s business, or that he sustained the relation of guest and not of boarder to the hotel.</p>

<p>DEATH — MALPRACTICE—VERDICT—WITNESSES.</p> <p>1. Discretionary Course of Treatment Challenged Question is for Jury.</p> <p>While an action for malpractice can not be successfully founded upon a claim that the physician has taken one of two discretionary courses, concerning the relative propriety of which doctors disagree, yet when the propriety of the course actually taken is challenged, the question is one for the jury to determine as to whether the course taken was improper, so as to manifest want of ordinary skill and care, or whether its propriety is, under the evidence, a discretionary question.</p> <p>2. Marital Relation Shown Sufficient to Authorize Substantial as Distinguished from Nominal Damages for Wrongful Death.</p> <p>In an action for wrongful death it is unnecessary to show more than that the deceased bore the relation of wife and mother to the persons for whose interest the action is brought, in order to authorize substantial, as distinguished from nominal damages.</p> <p>3. Interrogatories Testing Correctness of General Verdict Sufficient.</p> <p>Interrogatories must be directed to the ascertainment of the jury’s mind concerning facts in issue; not merely ultimate facts, but determinative facts. It is sufficient if they are of such a nature as that the answer to them, when deliberated upon and returned by the jury, shall tend to test the correctness of the general verdict.</p> <p>4. Suggesting to Jury that Expert Witnesses Fail to Comprehend Hypothetical Questions Submitted, Improper.</p> <p>It is improper to suggest to the jury that expert witnesses might,through inattention, fail to comprehend the true meaning of hypothetical questions put to them.</p>

<p>CRIMINAL LAW — INDICTMENTS—OBSCENITY.</p> <p>1. Surplusage or Indefiniteness in Indictment not Fatal.</p> <p>An indictment is not bad solely because it contains surplusage, nor is it indefinite if it affords the accused protection in his legal . rights in making a defense and also furnishes him a record of conviction or acquittal that he may interpose if indicted a second time for the same offense.</p> <p>2. “Obscene,” “Lewd” and “Lascivious” and Synonyms, Construed.</p> <p>In a trial for unlawfully exhibiting obscene, lewd and lascivious figures, etc., the court charged that words “obscene,” “lewd” and “lascivious” were to be taken and construed together, as charging a single offense and to be considered in their ordinary signification and in their popular sense. He also, in defining said words separately, gave synonyms of them approved by lexicographers, some of which synonyms do not possess the precise content or meaning which the entire phrase carries; Held; Not reversible error.</p>

<p>INSURANCE.</p> <p>Injured Employe not Subrogated to Rights of Policy Holder.</p> <p>When insurance is only against loss from liábility incurred by the party insured to an injured employe, the latter can not be subrogated, in case of the former’s insolvency, to the policy holder’s right to indemnity in whole or in part.</p>

<p>CONTEMPT.</p> <p>Jurisdiction of J.'P. to Punish for Refusal to Answer Question Germane to Case.</p> <p>A justice of the peace has, power to punish a witness in a case before him for refusal to answer a question germane to an injury as to the service in the case.</p>

<p>CHARGE TO JURY.</p> <p>Error in Refusing Requests Cured by Special Findings of Jury.</p> <p>Though proper requests to charge are refused, the error in refusing them is not prejudicial if the answers of the jury to special interrogatories submitted to it render the requests irrelevant.</p>

<p>EXECUTIONS.</p> <p>Execution on Dormant Judgment Voidable only and Must be Set Aside on Motion to Release Lien.</p> <p>An execution upon a dormant judgment is not absolutely void, but voidable only, and must first be set aside upon motion made in the court whence it issued, before it ceases to be a lien upon the land upon which it was levied.</p>

<p>ASSESSORS.</p> <p>Failure to Elect Municipal Assessors Results in Vacancy, not Holdover.</p> <p>Under Sec. 3352 G. C., a vacancy and not a holdover results when there is no duly elected and qualified successor to a ward or precinct assessor.</p>

<p>CONTRACTS — CORPORATIONS—LIMITATIONS.</p> <p>1. Limitations Run from Completion of Contract by Guarantor not from Default.</p> <p>In an action against a guarantor of a contract for the construction of a mill or plant which provides that in the event the contractor fails to complete the plant within a certain time, the plaintiff may complete it and be repaid its expenditures in that behalf, where the contractor fails and the plaintiff elects to proceed and complete the plant, the statute of limitations begins to run against the guarantor for money so expended from the date of the completion by the plaintiff of the plant and not from the date of the default of the contractor.</p> <p>2. Invalidity of Corporate Guaranty can not be Questioned after Contract Completed.</p> <p>A corporate contract, such as one of guaranty, made without legislative sanction, and hence -ultra vires, but neither malum in se nor expressly prohibited, is not necessarily illegal, so as to preclude action upon it, and if it is fully performed on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract so performed one party is outside the corporate power of- the corporation.</p>

<p>ATTORNEY AND CLIENT — EVIDENCE.</p> <p>1. Admissions of Counsel in Pleadings, etc., Admissible Against Clients.</p> <p>Admissions of counsel in pleadings, motions, affidavits and other papers filed in a cause are admissible in the same cause against their clients, if made within the scope of their authority.</p> <p>2. Admission of Receiver against Interest of Estate, Binding on Estate.</p> <p>When a receiver, acting in the course and within the scope of his official duty, makes an admission against the interest of the estate in his custody, it is binding upon the estate and its owner.</p> <p>3. Authority of Attorney Presumed from Appearance.</p> <p>The authority of an attorney is to be presumed from his appearance as such in a case, until the contrary affirmatively appears.</p>

<p>CONSTABLES — PRINCIPAL AND SURETY.</p> <p>Defense of Surety on Indemnity Bond Against Claim of Surety on Constable's Official Bond for Levy on Exempt Property.</p> <p>In an action by a surety on a constable’s official bond, who has been obliged to pay a judgment obtained against the constable for levying upon exempt property, brought against the surety on an indemnity bond given the constable by the judgment creditor to protect the constable from damages for levying upon exempt property, the surety on the indemnity bond may defend on the ground that the constable refused to restore exempt property to the judgment debtor, when directed so to do by the judgment creditor, principal on the indemnity bond.</p>

<p>CONTRACTS.</p> <p>Waiver of Full Performance, not Modification or Contract.</p> <p>A contract provided that a house should be moved from the bottom of a hill to its summit, the owner expressed himself as satisfied with its position when it was placed by the mover at a point somewhat below the summit of the hill and the mover accord-' ingly regarded his contract as fully performed. Held: This evidence does not present a cause of modification of a contract requiring a new consideration, but a case of waiver of full performance.</p>

<p>FORCIBLE ENTRY AND DETAINER — JUSTICE OF THE PEACE.</p> <p>1. Judgment of Common Pleas Affirming J. P. in Forcible Detainer Reviewable in Circuit Court.</p> <p>When a petition in error seeking to reverse the judgment of a justice of the peace in a forcible detainer case is, on leave, filed in the common pleas court, the judgment of the latter court thereon is reviewable in the circuit court. Rothwell v. Winterstein, 42 O. S., 249, distinguished.</p> <p>2. Single Notice to Vacate, Sufficient Forcible Detainer.</p> <p>In an action in forcible detainer under the provisions of Sec. 4276, R. S., to recover the possession of premises occupied by the tenant for gaming, no notice to quit, other than that incident to the bringing of the suit, need be given.</p> <p>3. New Trial Granted by J. P. Proper Practice.</p> <p>Under Sec. 6560, R. S., a justice of the peace may grant a new trial in a forcible detainer case.</p> <p>4. Justice not Required to Charge Jury before or after Argument.</p> <p>A justice of the peace is not required to charge the jury either before or after argument.</p> <p>5. Charge to Jury by J. P. Liberally Construed.</p> <p>When a justice of the peace charges a jury, his charge is not to be viewed with a critic’s eye and its imperfections are to be passed by, unless they are so plainly erroneous and prejudicial as to indicate that the verdict was unjust and unlawful.</p> <p>6. Separation of Jury Overnight in Forcible Detainer not Erroneous.</p> <p>It is not reversible error for a justice of the peace to permit a jury to separate over night, after the case has been submitted to it, unless it is shown affirmatively that prejudice resulted therefrom to the defeated party.</p> <p>7. Refusal to Discharge Jury on Foreman’s Report of Disagreement.</p> <p>It is not error for a justice of the peace to refuse to discharge a jury when the foreman thereof on the first evening reports that the jury would probably be unable to agree, or at least that he saw no chance thereof at that time.</p>

<p>LEASES.</p> <p>Between Parties Lease for Three Years Though with Renewal Option Needs no Attestation, Acknowledgment or Record.</p> <p>As between the parties to it, a lease for three years, whether the term begins at once or in the future, need not be attested, ac-acknowledged or recorded, and this is so even though the lease contains an option to the tenant to renew or extend the same for another like period.</p>

<p>BILLS AND NOTES</p> <p>Payee not Bound by Relationship between Joint Makers as Principal and 8'urety without Notice.</p> <p>In a suit on a promissory note against one of two joint makers, It is error to refuse to charge that the plaintiff is not bound by the relationship of principal and surety alleged by the defendant to exist between the joint makers, unless he had notice of that relation when he took the note.</p>

<p>FRANCHISES — MUNICIPAL CORPORATIONS</p> <p>1. Franchise Ordinance does not Require Publication.</p> <p>An ordinance of a municipality granting a franchise does- not require publication.</p> <p>2. Franchise Accepted not Withdrawn by Ordinance Repealing.</p> <p>When a public service corporation has duly accepted a franchise granted it by a municipality, the franchise can not be withdrawn by repealing the ordinance granting it.</p>

<p>MANDAMUS</p> <p>Remedy of Excluded Police Court Interpreter is by Mandamus against Police Judge, not-Paying Auditor.</p> <p>Under Sec. 4589 G. C., which provides that the police judges of certain cities may appoint an interpreter of that- court, one who claims the right to said office from which he has been excluded by said judges who have appointed another in his stead may test it by mandamus against the police judges to restore him to' his place, and not by mandamus against the city auditor to issue him a warrant for his pay during the time he is so excluded.</p>

<p>EASEMENTS</p> <p>Abutters’ Rights on Vacation of Streets Dedicated and Condemned, Distinguished.</p> <p>The provisions of Sec. 3729, G. C., regarding the vacation of a street by a municipal council, that the right of way and easement in the street so vacated of any lot owner shall not be im- ■ paired, do not apply to streets the land for which has been appropriated by the municipality. In the latter case those injured have no remedy against the owner in reversion.</p>

<p>PLEADING — TRIAL</p> <p>Pleading Intermingling Transactions of Fraud and Breach of Contract Permits Introduction of Evidence on Both.</p> <p>Intermingling of allegations of fraud and breach of contract, concerning the same transaction, do not necessarily commit the pleader to a single theory of his right to recover. He may introduce evidence in support of both aspects of his case and recover on either or both, according to the proof made.</p>

<p>APPEAL — CHATTEL MORTGAGES — WORDS AND PHRASES</p> <p>1. Appeal does not Take up Separate Branch of Casé Previously Disposed of.</p> <p>An appeal from the insolvency court to the court of common pleas does not take up a branch of the cause, separate and distinct from other parts of the cause, as to which the insolvency court had, theretofore and beyond the time limited for appeal, entered a judgment which reserved no further questions or directions for future determination with regard to that separate branch of the cause.</p> <p>2. “Indebted” in Chattel Mortgage Affidavit Equivalent to “Unpaid,” Prescribed by Law.</p> <p>A statement in an affidavit to a chattel mortgage that the mortgagor is “indebted” on the mortgage claim to the mortgagee in a certain sum, sufficiently complies with the requirement of Sec. 4154, R. S. (Sec. 8564 G. C.,' that the mortgagor must state under . .. oath that his claim is “unpaid.”</p> <p>8. Possession by Mortgagee of Chattels Superior to Rights of Assignee.</p> <p>When a mortgagee of chattels takes possession of them under his mortgage before the filing of a deed of assignment by the mortgagor, his rights are superior to the rights of the assignee.</p>

<p>JUSTICE OP THE PEACE — REFORMATION OP INSTRUMENTS</p> <p>Procedure Where Equitable Relief is Required in Action Before Magistrate.</p> <p>When a defendant in an action before a justice of the peace requires equitable relief, such as the reformation of a written instrument, which relief the justice can not grant, his proper course is to bring his action in the court of common pleas for reformation of the instrument and pray for an injunction to restrain the prosecution of the justice action until his rights to such relief are. adjudicated.</p>

<p>CONSTITUTIONAL LAW — FRAUD—HEALTH</p> <p>Milk Bottle Act Held Constitutional.</p> <p>The act of May 9, 1908 (99 O. L., 454), to regulate the filling and refilling of milk bottles and glass Jars, is constitutional.</p>

<p>COURTS — JUDICIAL SALES</p> <p>Validity of Title to Property Sold by Order of the Probate Court.</p> <p>The probate courts of this state are courts of record, competent to decide on their own jurisdiction and exercise it to final judgment. Such court’s records import absolute verity, and no party to any proper proceeding therein can in any collateral proceeding, by impeaching the truth of its findings, challenge its jurisdiction to adjudge that he was duly served with proper notice and to award relief accordingly.</p>

<p>LIBEL</p> <p>1. Question of Libel, per se, is for Court.</p> <p>When in an action for libel, no special damages are alleged, the article complained of is either a libel per se, or it is not a libel at all, and this is a question for the court.</p> <p>2. Classes of Libel per se, Defined.</p> <p>Labels per se are of three classes: (1) imputing an indictable offense, involving moral turpitude or infamous punishment; (2) imputing a contagious or offensive disease or condition, tending to ostracize; (3) tending to injure one in one’s occupation.</p> <p>3. Publication not Warranting Imputation of Criminality Alleged not Libelous.</p> <p>If a publication does not warrant the imputation of criminality, placed upon it by the petition, it is not libelous.</p> <p>4» Petulant Destruction of Trifling Property not Crime Involving Infamous Turpitude.</p> <p>The petulant destruction of another’s property of trifling worth is not a crime involving infamous turpitude or punishment.</p> <p>5. Imputing Destruction of Court Records is Libelous per se as Injuring in Occupation.</p> <p>It is the duty of a stenographer to take proper care of and not to destroy valuable records and papers committed to her custody in the course of her employment as such. To impute a contrary course of conduct to her tends to injure her in her occupation, and is libelous per se.</p>

<p>APPEALS</p> <p>Dismissal of Appeal by Appellant to Prejudice of Another Party Set Aside.</p> <p>The dismissal of an appeal by the appellant will be set aside at the direction of the court, if it appears that any other party to the appealed case will be unreasonably or unfairly prejudiced by such dismissal.</p>

<p>BREACH OF MARRIAGE PROMISE</p> <p>Conversations between Parties after Marriage of Defendant to Another, His Admissions of Mutual Affection and Declarations of Plaintiff, Competent Evidence.</p> <p>In a suit for damages for breach of promise of marriage, evidence may be received of conversations between the parties after the marriage of the defendant to another; of his admissions to a third party of the mutual affection of the parties, and of declarations of the plaintiff made when she was about to leave her employment that she was leaving so as to prepare to get married.</p>

<p>EASEMENTS — INJUNCTIONS</p> <p>1. Use of Driveway not Restricted to Residence as Distinguished from Commercial Purposes.</p> <p>The use of a driveway provided for in a deed by general language can not be restricted to residence purposes, as distinguished from commercial purposes, though at the time the use was charged upon the land all the premises were used for residence purposes only.</p> <p>2. Use of Driveway Reserved over Adjoining Land not Enjoined, Notwithstanding Addition of Other Parcel Benefited.</p> <p>One who buys land, to which is annexed the use of a driveway over another’s land, will not be enjoined from using said driveway for access to his own land, even though he has added a small additional parcel of land to his original parcel, which addir itional parcel is also in some small degree benefited by the use of such driveway.</p>

<p>APPEAL</p> <p>1. Appeal of Case Dismissed After Demurrer to Petition Sustained.</p> <p>In a proper case appeal may be taken from a judgment of the common pleas court sustaining a demurrer to a petition and dismissing the same upon the statement of the plaintiff that he does not desire to plead further.</p> <p>2. Rights of Cross-Petitioning Defendant Brought up by Appeal After Case Dismissed after Demurrer.</p> <p>The dismissal of a case after sustaining a demurrer to the petition carries with it the dismissal of a cross-petition setting up a tax lien on the premises involved in the proceedings, and an appeal thereafter by the plaintiff brings up the whole case, including the rights of the cross-petitioning defendant.</p>

<p>ASSIGNMENTS FOR BENEFIT OF CREDITORS</p> <p>Dividend on Certificate of Deposit Pledged to Secure Loan by Insolvent Bank Computed upon Full Amount of Certificate.</p> <p>A certificate of deposit in a bank which afterwards became insolvent, was deposited with another bank as collateral security for a’debt due it; upon declaration of a dividend by the assignee of the insolvent bank. Held: That it should be computed upon the full amount of said certificate of deposit, notwithstanding that meanwhile the debt to which it had been pledged as collateral had been reduced, but not below the amount of such dividend, and that the proceeds thereof were misapplied by the agent authorized to negotiate the loan.</p>

<p>ERROR — VARIANCE</p> <p>Judgment in Variance with Issues. Raised by' Allegations and Prayers of Pleadings Reversed. .</p> <p>‘A judgment not in accordance with the allegations of the pleadings, the issues therein raised, or the prayers therein contained, will be reversed and the cause remanded for a new trial. ■</p>

<p>ASSESSMENTS — HIGHWAYS</p> <p>1. Assessment under Petition for Improvement of County Road not Enjoined for Variance in Width and Cost.</p> <p>Proceedings under a petition to the county commissioners “to improve said portion of said road by grading, draining and macadamizing the same for a width of sixteen feet, or by such other method, or with such other materials named in the statute hereinafter referred to, at a cost not to exceed $12,000 per mile, as your honorable board shall deem best,” petitioners agreeing that 25 per cent, of the cost and expense may be assessed against them, will not be enjoined though the improvement is made half again as wide, nearly twice as costly and 40 per cent, assessment is levied against the petitioners.</p> <p>2. Two Petitions for Improvement of Different Sections of Road not Consolidated for Single Improvement.</p> <p>Two separate petitions for the improvement of different sections of a state or county road, can not be consolidated by the county commissioners and heard as one for a single improvement, when there is nothing to indicate that they were so intended by the petitioners.</p>

<p>ARBITRATION AND AWARD</p> <p>Award of Arbitration not Invalid because of- Immaterial Variations from Submission.</p> <p>An award of arbitrators will not be considered void because not final or responsive to the submission, if all the. items in dispute between the parties are embraced in it, with only a few immaterial exceptions, and a time is fixed by the arbitrators for the completion of everything directed by them to be done.</p>

<p>TAXES AND TAXATION</p> <p>1. Shares in Foreign Corporation Owned by Foreign Corporation .Doing Business in State, not Taxable.</p> <p>Shares of stock in a foreign corporation owned by another foreign corporation doing business in this state are not taxable, notwithstanding the certificates evidencing such ownership are physically in the custody of officers of the latter corporation at a branch office, maintained within the confines of the state.</p> <p>2. Shares in Joint Stock Association of Michigan not Distinguished from Corporate Shares.</p> <p>Shares in a joint stock association under the laws of Michigan, for purposes of taxation under the laws of Ohio, are not to be distinguished from shares in a corporation.</p>

<p>BILLS AND NOTES</p> <p>Drawer, as Endorsee, Can Not Hold Payee as Endorser.</p> <p>Under the negotiable instruments act, the drawer of a bill, who subsequently becomes its holder, can not hold the payee on his. endorsement.</p>

<p>ASSIGNMENTS</p> <p>1. Rents Severable from Reversion, Vesting in Assignee.</p> <p>The right to receive rents due or to become due under a lease may be severed from the reversion and by assignment become vested in the assignee.</p> <p>2. Assignee of Rents not Answerable for Failure to Make Repairs.</p> <p>The mere assignee of the rents, though she has agreed with her assignor to make necessary repairs, is not answerable to the tenant for her failure to make such repairs.</p>

<p>NEGLIGENCE</p> <p>Negligence Inferred from Proof of Accident to Employe Through Defects in Machinery, Though Doctrine of Res Ipsa Loquitur not Applicable.</p> <p>In the case of an injury to plaintiff’s arm by the sudden and unexpected descent of the plunger in a sausage machine, although the doctrine of res ipsa loquitur does not apply, negligence on the part of the defendant employer may be inferred from proof of facts pointing to insufficiency, in construction or repair of the machine, though several' distinct defects are alleged and the proof points as strongly to- one of them as the cause of the accident as any other.</p>

<p>CRIMINAL LAW</p> <p>Proof of Guilt beyond Reasonable Doubt not Required If Jurors “are Reasonably Certain of Guilt."</p> <p>In a prosecution for stabbing with intent to wound a charge as follows, “A man put upon trial here charged with a crime, starts out in the trial with the presumption in his favor that he is not guilty. That presumption must be overcome by evidence satisfying the jury to a reasonable certainty of guilt. You do not have to be absolutely certain of guilt in order to find a party guilty; you must be satisfied in such degree that you have no reason to doubt his guilt. Your minds must be so satisfied of his guilt that your conscience would be satisfied with a verdict of guilty; that you would feel you have not made any mistake. You could not be absolutely certain; that is not required. If you have an honest difficulty after you have considered the evidence; an honest, conscientious difficulty in believing the defendant guilty, then you ought not to convict. If you are reasonably certain of his guilt, then you ought to convict. You are not to have any hesitation about convicting if the evidence warrants it You ought not to convict unless the evidence does warrant it," while not commended, is not, as a whole, incorrect</p>

<p>EMBEZZLEMENT</p> <p>Degree of Proof Required to Convict of Embezzlement.</p> <p>The crime of embezzlement is not made out by evidence which might be sufficient to establish the crimes of larceny or obtaining money under false pretenses.</p>

<p>FALSE REPRESENTATIONS</p> <p>Rescission of Sale of Stock for False Representations Refused when Buyer Guilty of Laches.</p> <p>A sale of oil stock under the false representation that it was treasury stock and that other named stockholders had paid par for their stock, will not he rescinded when the buyer waits six months after learning the truth about the stock and until a well is drilled which turns out to be a dry hole.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Municipality not Liable for Travelling Expenses of Its Officials Attending Conventions.</p> <p>A municipality is not liable for the traveling expenses of one of its officials incurred in attending a convention of like officials of other municipalities.</p>

<p>CORPORATIONS — ERROR-VERDICTS</p> <p>1. Director not Conclusively Presumed to Know Transactions of Board.</p> <p>In an action for damages for false representations as to the rate of dividends paid on stock which plaintiff was induced to buy of or through a director in the company, it is error to chargé that if the jury found defendant to have been a director, knowledge of the truth or falsity of his assertions as to the dividend rate are conclusively imputable to him.</p> <p>2. Directing Verdict for Party Holding Burden of Proof Held Erroneous.</p> <p>It is error to instruct the jury to find on any point in favor of a party holding the burden of proof as to such point, unless the same is admitted by the opposing party in such wise as to dispense with proof, or unless .the law attaches to such evidence as is produced the quality of being conclusive proof.</p>

<p>CONTRACTS</p> <p>1. Burden of Claim of Modification in Original Contract not on Defendant Asserting It.</p> <p>When plaintiff sues upon a contract and defendant answers that the terms of the original contract had been modified by a new contract entered into between the parties, it is error to charge: “It is claimed here by the defendant that a new contract was entered into between the parties, modifying the old one in a certain particular. The burden upon that subject, gentlemen of the jury, is upon the defendant.”</p> <p>2. Instruction to Ascertain Amount Due Plaintiff and Amount Due on Counterclaim and Strike Difference for Verdict, not Erroneous.</p> <p>In an action by a traveling salesman to recover the balance due him for his services, wherein the employer has filed a counterclaim, it' is not error for the court to charge the jury, “I suggest that you first ascertain what, if anything, is due the plaintiff under these contracts, then ascertain what, if anything, is due the defendant under its counterclaim, and strike a difference and in whose favor your difference is, so will be your verdict,” even if it might be that under the different views of the contract set up by the two parties it would be impossible that the plaintiff could recover on the petition and at the same time defendant recover on his cross-petition.</p>

<p>OFFICES AND OFFICERS</p> <p>Sanitary Policeman Removable at Pleasure of Health Board.</p> <p>A sanitary policeman appointed in 1910, not from any list of eligibles furnished by the civil service commission or as an emergency employee of the mayor, is removable at the pleasure of the board of health.</p>

<p>ESTOPPEL — PLEADING—REVIVOR</p> <p>1. Notice of Revivor of Action Presumed where Record Silent.</p> <p>When the record discloses nothing either way about notice to or consent of a defendant to the revivor of an action against him, jurisdiction of his person upon which to base a default judgment against him will be presumed.</p> <p>2. Former Adjudication to Work Estoppel, Pleaded.</p> <p>In order that a former adjudication may work an estoppel, it must be pleaded.</p>

<p>EMINENT DOMAIN</p> <p>1. Speculative Possibilities not Damages for Street Appropriation.</p> <p>Speculative possibilities are not an element of value of property appropriated.</p> <p>2. Opening of New Street Incident to Elimination of Grade Crossing.</p> <p>The opening of a new street from a railroad depot to a street crossing at a higher level so relates itself as incident to the main object of eliminating a grade crossing, as to warrant the exercise by a municipality of its power of eminent domain in that behalf.</p> <p>3. Assumption of Sales at Prices Stated as Testing Competency of Witness Fixing Values not Permissible.</p> <p>While it is not improper in an appropriation case upon cross-examination of a witness who has on direct examination given his opinion of the value of land sought to he appropriated to inquire of him concerning the sales of adjacent lands, for the purpose of testing his knowledge and competency, it is not ordinarily permissible to incorporate into such inquiries a statement or assumption that such sales at prices named have in fact occurred.</p> <p>4. Divesting City of Fee in Street Dedicated in Plat Requiring no Acceptance.</p> <p>The dedication of a street by plát in 1837, required no acceptance, either express or implied, by the public authorities, to vest the fee of the street in the city for the use of the public for street purposes, and such title of the city can be divested only in the manner indicated in Sec. 4977 R. S. (Sec. 11219 G. C. et. seq.), or otherwise, as provided by statute.</p>

<p>LANDLORD AND TENANT</p> <p>Intention of Tenant Holding over Terms of Lease Immaterial.</p> <p>When a tenant holds over the term of a lease, either by remaining in possession of the premises personally, or through his tenants or subtenants, his intentions and desires as to the lease are wholly immaterial. By his mere act in remaining in possession of the premises after the term, the tenant gives the landlord the choice of election, to treat him as a tenant for a new term, or as a trespasser, and the landlord has this election wholly independent of any desires, wishes or intentions on the part of the tenant.</p>

<p>APPEAL — ATTACHMENT AND GARNISHMENT</p> <p>Appeal does not Prevent Justice Paying Out Money Received from Garnishee.</p> <p>There being no express provision of statute requiring that money paid by a garnishee into court shall be held by a justice of the peace pending the expiration of the time allowed by law for taking an appeal from his judgment, neither he nor his sureties can be held liable for his making payment of the same to the plaintiff in attachment, though an appeal be afterwards taken and the action, after such appeal, be voluntarily dismissed.</p>

<p>DIVORCE AND ALIMONY</p> <p>Divorced Wife cannot Charge Husband for Child’s Expenses.</p> <p>When the mother of a minor child is awarded its custody, in a divorce proceeding between her and the child’s father, she is not thereby clothed with authority in the first instance, and until the father neglects or refuses to make suitable provision for the child’s maintenance, to incur expense in that behalf, except only in those matters, towit, board and lodging, which are naturally incident to the custody of the child while residing with its mother.</p>

<p>MALICIOUS PROSECUTION</p> <p>Motive in Bringing Criminal Prosecution not Element of Malicious Prosecution.</p> <p>In an action for malicious prosecution it is error to charge the jury: “If the defendant instituted the criminal prosecution in question with any other motive than to cause the punishment of the plaintiff for a breach of. the criminal law, it would constitute malicious prosecution.”</p>

<p>ASSIGNMENTS — BILL OF LADING</p> <p>Title Acquired by Transferee of Nonnegotiable Bill of Lading, Qualified.</p> <p>Under the first paragraph of Sec. 8414 G. C. the transferee of a non-negotiable bill of lading acquires such title to the goods shipped as the transferor can pass, except that the parties to the transfer may agree that only a qualified title shall pass.</p>

<p>APPEAL</p> <p>Penalty for Failure to Give Additional Appeal Bond is Dismissal.</p> <p>The proper penalty for failure to comply with an order to give an additional appeal bond is dismissal of the appeal, but an order striking off defendant’s answer and giving judgment for plaintiff by default produces the same result and no prejudicial error arises therefrom.</p>

<p>DISMISSAL AND NON-SUIT</p> <p>Sustaining Objection to Any Evidence not Bar to Another Action against Same Party.</p> <p>An order dismissing a defendant from an action, upon the sustaining of an objection to the introduction of any evidence against it under the allegations of the petition, is not a bar to another action against said defendant.</p>

<p>FORCIBLE ENTRY AND DETAINER</p> <p>Assignment of Lessor’s Interest in Lease does not Confer Right to Forcible Detainer.</p> <p>The lessor’s transfer of his interest in a lease works an assignment of the rents, but conveys no right, possessory or otherwise, to the demised premises, and therefore confers no authority to prosecute forcible detainer.</p>

<p>RAILROADS</p> <p>Negligence In Failing to Provide Runway with Cleats to Prevent Slipping.</p> <p>Failure of a railroad company to furnish cleats to prevent an iron plate or runway between two car doors from slipping, whereby a trucker in its employ was injured, is actionable negligence.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>On Vacation of Street Abutter’s Rights Limited to One-Half Width.</p> <p>When the easterly 25 feet of a 40 foot street is vacated, 20 feet only of the vacated portion accrues to the owner abutting upon the easterly side of the street and such owner has no further rights in the westerly, unvacated, 15 feet of the street.</p>

<p>APPEALS</p> <p>Action for Accounting and Recovery of Money Fraudulently Withheld on Mortgage Investment not Appealable.</p> <p>An action for an accounting and recovery of money alleged to have been fraudulently withheld on certain mortgage loan investments, made by plaintiff through defendant, and collected by the latter, is an action for money only and not appealable.</p>

<p>ATTACHMENT AND GARNISHEE</p> <p>Garnishee Process Good against Assignee of Insolvent Estate after Distribution Order Made.</p> <p>An assignee or trustee in insolvency may be garnisheed by a creditor of a distributee of the insolvent estate, after order of distribution is made.</p>

<p>VENDOR AND PURCHASER</p> <p>Mistake in Identity of Seller by Purchaser Held Want of Assent.</p> <p>When a purchaser buys from one whom he supposes to be his debtor and against whom he would have a right of set-off, a mistake as to the identity of the vendor prevents the contract from coming into existence for want of assent.</p>

<p>CONTEMPT — DIVORCE AND ALIMONY</p> <p>1, Refusal to Punish for Contempt in Failing to Pay Alimony Discretionary.</p> <p>Though judgments in contempt proceedings are reviewable on error, a refusal to punish for contempt is, in general, a matter wholly within the discretion of the court.</p> <p>2. Removal of Child beyond Jurisdiction of Court Preventing Parent from Visiting Child Defense in Contempt.</p> <p>Such discretion is not abused where the trial court refuses to punish a defendant for failure to pay alimony, the plaintiff herself, having removed a child of the parties beyond the jurisdiction of the court so as to prevent the defendant from visiting it, as allowed by the court.</p>

<p>CIVIL RIGHTS</p> <p>1. Two Refusals to Sell Tickets, One Violation.</p> <p>Two refusals at different times to sell tickets to one performance at a theatre, constitute but one violation of the civil rights act.</p> <p>2. Aiding and Inciting Denial of Civil Rights Held Separate Offense.</p> <p>Aiding or inciting a denial of civil rights under Sec. 12940 G. C., is a distinct and separate offense, and one guilty of it is punishable, notwithstanding he whom he aided or incited has been convicted of the concomitant offense.</p>

<p>APPEAL — INJUNCTION—MUNICIPAL CORPORATIONS</p> <p>1. Appeal Dismissed Sua Sponte when Cause Forbids.</p> <p>.An appellate court may of its own motion dismiss an appeal for want of jurisdiction, when it is discovered before trial and judgment that the cause is not appealable.</p> <p>2. Appropriation Proceeding Treated as Action in Ejectment.</p> <p>An action to restrain a municipal corporation from proceeding with an appropriation case, when it appears that the municipality under a former order, which had been reversed, deposited the amount found by the jury, gave bond and took possession of the land and improved it, is in reality an action in ejectment, and is not appealable.</p>

<p>MASTER AND SERVANT</p> <p>Protection of Operatives from Contact with Machinery, not Prevention of Parts Flying Off.</p> <p>Section 4364-89c R. S. (Sec. 1027 G. C.), requires wood-working machinery to be protected by a guard to prevent the operator coming in contact with it, and not to prevent parts of the machine from flying off and injuring the operator.</p>

<p>PAYMENT</p> <p>Liability for Mistake in Payment of Wages.</p> <p>It is no defense to a claim for wages that they have been paid to a third person, unless such third person received payment with the knowledge and consent of the plaintiff.</p>

<p>APPEAL</p> <p>Transcript on Appeal from Justice Court Filed after Thirty Days, Too Late.</p> <p>Transcript for appeal from a magistrate’s judgment was filed in the common pleas court more than thirty days after its rendition; thereupon plaintiff filed his petition and defendant an answer and cross-petition; thereafter plaintiff filed his motion to strike the answer and cross-petition from the files and dismiss the appeal for want of jurisdiction; this motion was granted; Held: No error.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>1. Discretion of Municipal Authorities in Awarding Bids not Judicially Controlled.</p> <p>Unless the requirements of ordinance or statute have been violated, or fraud or its equivalent has been practiced, the discretion of municipal authorities in the letting of contracts to the lowest and best bidder, will not be controlled by the courts.</p> <p>2. Bid Requirement to Furnish Sample not Invalid.</p> <p>A provision in an advertisement for bids for coal that the successful bidder shall furnish a sample and fulfill his contract in conformity to it, does not invalidate the bidding or vitiate the letting pursuant to it.</p>

<p>QUIET TITLE</p> <p>Possession Necessary to Maintain Action to Quiet Title.</p> <p>An action to quiet title will be dismissed when it appears that the plaintiff is not in possession of the premises.</p>

<p>ACCOUNTS</p> <p>Express and Unequivocal Acknowledgment of Correctness of Account not Necessary.</p> <p>While it may not ordinarily be true that an account, the items of which are disputed in an action therein, can be said to have been acknowledged' by mere implication, yet an express and unequivocal acknowledgment is by no means always necessary to afford sufficient foundation for an inference that an acknowledgment is intended.</p>

<p>DIVORCE AND ALIMONY</p> <p>Four Sprees in Ten Years do not Establish Habitual Drunkenness.</p> <p>Proof of four protracted sprees during a period of ten or twelve years, does not establish habitual drunkenness.</p>

<p>PLEADING</p> <p>General Denial Sufficient to Traverse Happening of Contingency.</p> <p>When a petition discloses upon its face that a contract sued upon provides for the payment of the sum demanded only upon the happening of a contingency named, an answer by way of a general denial is sufficient to traverse the petition’s allegation that such contingency has been satisfied.</p>

<p>MASTER AND SERVANT</p> <p>1< Extent of Master's Duty in Furnishing Safe Place to Work.</p> <p>It is the duty of an employer to exercise ordinary care for his employe’s safety, but this duty is not absolutely and at all ■ events to provide a safe or a reasonably safe place to work and safe or reasonably safe instrumentalities, but only to exercise ordinary care so to do.</p> <p>2." Contributory and Comparative Negligence Essential Elements for . Consideration.</p> <p>It is error to charge in a personal injury case that the plaintiff is entitled to recover if he has proved all his allegations of negligence against the defendant, without reference to the defense of contributory negligence and without qualification as to comparative negligence.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Municipal Corporation not Liable for Negligence in Guarding New Cement Sidewalk by Independent Contractor.</p> <p>A municipal corporation is not liable to one injured by stumbling over a wire netting placed around a newly made cement sidewalk to prevent pedestrians from stepping upon it, by independent contractors employed by the municipal corporation to lay the sidewalk, the municipality having no notice, active or constructive, of the manner of guarding the sidewalk.</p>

<p>WILLS</p> <p>Residue to Surviving Children of Named Heirs Share and Share Alike.</p> <p>A testator devised the residue of his. estate, “to the surviving children (or their heirs) of my sister Elizabeth, and my sister Mary, and my brother Arthur, share and share alike.” Held: There being nineteen living children of Elizabeth, Mary and Arthur surviving at testator’s death, and a grandchild of Elizabeth, child of her son who died before testator, that the residue of testator’s estate should be divided into twenty equal parts and one part distributed to each of the children of Elizabeth, Mary and Arthur and one part to the grandchild of Elizabeth.</p>

<p>LIBEL AND SLANDER</p> <p>Malice in Expressing Opinion as to Candidate’s Fitness for Office Immaterial.</p> <p>If one is of the opinion that a candidate for the office of judge of the common pleas court is unfit to be a judge, he has the right to say so, and it is a matter of indifference whether, in giving expression to such opinion, he was influenced by malice or not.</p>

<p>NEGLIGENCE</p> <p>Person Going on Escalader Knowing Defective Condition Cannot Recover.</p> <p>One who goes upon an escalader with knowledge that it is out of order and in a dangerous condition, can not recover if she is injured by reason of the defect of which she knew.</p>

<p>EMINENT DOMAIN</p> <p>1. Measure of Damages for Appropriation of Remaining Lands.</p> <p>In an appropriation case, where the defendant owns land on both sides of a railroad and the corporation appropriates all he owns on one side of the railroad, it is for the jury to say whether the land on the other side of the railroad is such “remaining portion” of the defendant’s lands as to entitle him to compensation for depreciation in its value by reason of the taking of the land appropriated.</p> <p>2. Adaptability for Park Purposes of Land Appropriated Element of Value.</p> <p>In estimating tlie value of land sought to be appropriated for park purposes, its adaptability for park purposes is a proper element of value for the jury to consider.</p>

<p>TRIAL</p> <p>Directing Verdict for ■ Defendant when there is Evidence to be Weighed, Held Erroneous Notwithstanding Granting New Trial Necessary.</p> <p>A verdict directed and a verdict set aside upon the weight of evidence are distinguishable in that retrial is precluded in the former case and possible in the latter. Hence, when there is • evidence upon both sides to be weighed, it is erroneous to direct a verdict for the defendant, notwithstanding the trial judge is of the opinion that, should the jury find for the plaintiff, he would grant a new trial on the weight of the evidence.</p>

<p>NEGLIGENCE — SHIPPING</p> <p>Injury from Stepping on Slippery Threshold of Steamer not Recoverable.</p> <p>One who steps upon a smooth, polished, brass threshold of a door on a steamer, such as are usually found on steamers and with which he was familiar, the same being in plain view, and slips and is injured, can not recover damages from the steamboat company.</p>

<p>RAILROADS</p> <p>Section Foreman and Engineer are Fellow-Servants.</p> <p>A section foreman on a railroad is a fellow-servant of an engineer on a locomotive, and there can be no recovery against the railroad company for injuries received by the engineer due solely to the negligence of the section foreman.</p>

<p>MASTER AND SERVANT — RELEASES</p> <p>Receipt in Full Settlement of Claim Defense Against Damages.</p> <p>One who has settled a claim for personal injuries received through the negligence of another and given a written receipt for the money paid him, reciting that it is in full settlement of his claim, in the absence of fraud or deceit, can not maintain an action for the recovery of damages growing out of said injuries.</p>

<p>BAIL AND RECOGNIZANCE</p> <p>Recognizance Forfeited at Next Term of Court.</p> <p>Previous to the act of May 9, 1908 (99 O. L. 356), there could be no recovery against the' sureties on a recognizance in a criminal case, for the appearance of the prisoner at the next term of court, unless at said term the prisoner was called, failed to appear and the recognizance was forfeited.</p>

<p>ASSESSMENTS</p> <p>Levying Assessment Fixes Amount, not Compels Payment.</p> <p>To “levy an assessment” within the purview of Sec. 1536-213, R. S. (Sec. 3819 G. C. et seq.), is to fix the amount to be paid as an assessment and not to compel its payment.</p>

<p>ACTION OR SUIT — PLEADING—PROCESS</p> <p>1. Allegations, Not Prayer, Determine Character of Action.</p> <p>A petition which states a case for money only, and nothing else, can not, by the prayer, be made a case for the interposition of a court of equity.</p> <p>2. Service by Publication Denied in Action for Money Only.</p> <p>In such a case service by publication can not be had upon a nonresident defendant under either the third or fifth paragraph of Sec. 5045 R. S. (Sec. 11292 G. C. et seq.)</p>

<p>CORPORATIONS — STRIKES</p> <p>Contracts between Corporations to Protect Property during Strike Lawful.</p> <p>A contract between several coal companies providing that they shall at joint expense, to be paid ratably by each, according to tonnage of its mines, hire guards to protect the property and employees of one of the companies and operate its mines during a strike affecting all of them, is a lawful contract, upon sufficient consideration, and not beyond the powers of such corporations to enter into.</p>

<p>ATTACHMENT — CORPORATIONS</p> <p>Averment of Failure to Comply with Statute Prerequisite to Attachment against Foreign Corporation.</p> <p>Process of attachment can not issue against a foreign corporation unless the affidavit in attachment states that such foreign corporation has not complied with the requirements of Sec. 148c R. S. (See Sec. 183 G. C. et seq.)</p>

<p>CRIMINAL LAW — LARCENY</p> <p>1. General Demurrer In Criminal Prosecution Raises Question of Intent.</p> <p>In a criminal case a general demurrer under Sec. 7251 R. S. (See. 13623 G. C., raises the question of whether intent has been alleged, and proof of it is necessary to make out the offense charged.</p> <p>2. Intent to Defraud in Receiving Stolen Goods Averred by “Unlawfully and Fraudulently.”</p> <p>In an indictment under Sec. 6858 R. S. (Sec. 12450 G. C.), for receiving stolen goods, an intent to defraud is sufficiently alleged by the use of the words “unlawfully and fraudulently.”</p>

<p>ASSESSMENTS — STREET RAILWAYS</p> <p>Neither City nor Abutters can Recover Cost of Paving Against Street Railway on Laying Additional Track in Street.</p> <p>A street railroad company operating a single track on a street of a city, when said street was paved, paid for seven feet of the pavement as required by its franchises; nine years later the company laid another track in the street, replacing the pavement in good order; thereupon the city brought an action to recover from the street railroad company the cost of paving an additional seven feet, which the company would have been required to pay for if it had been operating two tracks at the-time the pavement was first laid. Held: There could be no. recovery for or on behalf of the city or of abutting property, owners.</p>

<p>CRIMINAL LAW — PARENT AND CHILD</p> <p>Father not Judge as to Mode and Severity of Punishment of Child.</p> <p>In a prosecution under Sec. 6984a R. S. (Sec. 12970 G. C.), against a father for cruelty and unlawfully punishing his child, it is not proper to charge the jury that the father is the judge as to the mode and severity of the punishment and can not be found guilty for error in judgment, even if the punishment was excessive, nor unless the jury should find he was prompted by malice and ill-will toward the child.</p>

<p>DRAINS AND DITCHES — MANDAMUS—WATER COURSES</p> <p>County Commissioners not Compelled by Mandamus to Interfere with Riparian Rights.</p> <p>A writ of mandamus will not issue against the county commissioners commanding them to remove an obstruction placed by a property owner in a water-course along the course of which said commissioners had constructed a ditch, because the commissioners in the first instance had no right to convert the water-course, a living stream, into a ditch.</p>

<p>GIFT — EVIDENCE</p> <p>1. Facts Constituting Complete Gift of Horse.</p> <p>A father said to the husband of his daughter Ida: “Go up to the home place, get the little horse I gave Ida, take it off my land up there and turn it on the land I have given her, wjth your horses.” This the son-in-law did the next day. Held: A completed gift. /</p> <p>2. Objection to Improper Answer Saved bjj' Request to Takqfrom Jury.</p> <p>Objection to an incompetent answer! to a competent'’ question is saved by asking that the answer he taken from the consideration of the jury and not by objection to th^qaestion.</p>

<p>INTOXICATING LIQUORS — SUNDAY LAWS</p> <p>Ordinance Regulating Sunday Closing not Invalid because of Imposing Larger Penalty than Statute.</p> <p>A municipality under power granted by Sec. 1536-100 R. S. (Sec. 3661 G. C.), to regulate ale, beer, porter houses and shops and the sale of intoxicating liquors as a beverage, may enact a valid ordinance prohibiting the sale of intoxicating liquor on Sunday and making the penalty therefor not exceeding $500 and not less than $100, for a first offense, though the state law on the same subject makes the penalty not exceeding $100 and not less than $25 for the first offense.</p>

<p>HIGHWAYS</p> <p>1. No Presumption that Freeholders Making Application for Vacation of Highway did not Reside in Vicinity.</p> <p>Under Sec. 4661 R. S. (Sec. 6915 G. C.), the county commissioners have authority to vacate all or a part of a county road upon the application of “any twelve freeholders residing in that part of the county where such road is established,” and when they act upon an application purporting to be so signed, in a collateral proceeding calling in question the regularity of their proceedings, there is no presumption that the twelve signers were not freeholders residing in the vicinity, though the record is silent on the subject.</p> <p>2. Relocating County Highway Proceedings Valid.</p> <p>In such case, when part of a road is vacated and a new road actually established and used by the public and the proper authorities, there is a legal change in the location of the road, even though the proceedings of the commissioners may have been informal.</p>

<p>DRAINS AND DITCHES — EASEMENT</p> <p>No Easement in Private Sewer Through Land of Another.</p> <p>The mere existence of a private sewer through a man’s land which others are using, but of which there is no record evidence and of which, he had no knowledge when he purchased the premises, does not give such others a right to continue the use of said sewer without his consent</p>

<p>CAEBIEES — EVIDENCE</p> <p>1. Ambiguous Signal in Loading Automobile on Express Car Question for Jury.</p> <p>Whether an ambiguous signal, given by a representative of an express company to the owner of an automobile who was about to propel it up skids into a car for the purpose of having it transported, was a signal to come forward or stop, is a question for the jury.</p> <p>2. Owner of Automobile not Agent of Express Company Rendering Company Liable for His Negligence.</p> <p>Even if such signal was intended as a signal to come forward and move the automobile up into the car, the owner of the automobile was not thereby constituted the agent of the express company in such sense as to make his subsequent negligence, if any, the negligence of the company.</p>

<p>FRAUD</p> <p>1. Statement “I have Money Enough Now” as False Representation.</p> <p>That the statement: “I have money enough now. I could pay cash for anything I should order if I wanted to,” was false is not conclusively shown by proof that the person making the statement did not, at the time, have money in the bank.</p> <p>2. Statement “I Have Plenty of Orders on Hand” not False Representation.</p> <p>The statement: “I have plenty of orders on hand,” is not unwarranted if the person making it at the time had the promise from various reliable establishments that he should have their orders.</p>

<p>CRIMINAL LAW</p> <p>1. Prosecutor’s Comment that Accused Failed to Show Any Evidence of Good Conduct is Misconduct.</p> <p>Notwithstanding accused in a trial for first degree murder while on the witness stand and by his own testimony had shown a bad character, comment by the prosecuting attorney that he had failed to produce any evidence of good character, is misconduct.</p> <p>2. Record or Reputation of Prosecutor not Weighed by Jury by Previous Recommendation of Mercy.</p> <p>No consideration of the record or reputation of a prosecuting attorney should be permitted to be weighed by the jury. Hence, it is misconduct to state that he hopes while holding such office that no man guilty of murder in the first degree shall be recommended to mercy.</p> <p>3. Verdict not Invalidated by Misconduct of Prosecutor.</p> <p>In a criminal case, when it is plain from the evidence that the jury could not have reached any conclusion other than that which was reached, a verdict will not be set aside for reprehensible misconduct of the prosecuting attorney.</p>

<p>INJUNCTION — MUNICIPAL CORPORATIONS</p> <p>1. Injunction against Issue of Municipal Improvement Bonds Limited to Unauthorized Improvements.</p> <p>When in one ordinance a municipality provides for tbe issue and sale of bonds to pay for several separate improvements, for some of which it has authority to issue bonds and for others it has not, an injunction will not be granted against the entire issue proposed, but only against that part which is for the payment of unauthorized improvements.</p> <p>2. Bonds for Sidewalk and Retaining Wall, Though Adjacent to Park Unauthorized.</p> <p>A municipality can not raise money by the sale of bonds to pay for the construction of a sidewalk and retaining wall in a street, though the improvement of the street is adjacent to a park.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Bonds for Cleaning Catch Basins and Streets Unlawful.</p> <p>A municipality can not raise money by the sale of bonds to pay for the cleaning of catch basins or streets.</p>

<p>CONTRACTS — DAMAGES</p> <p>1. Time Is not Essence of Contract to Deliver “in about Equal Monthly Proportions during Last Three Months of Year."</p> <p>In a contract for the delivery of 150 tons of pig iron to the defendant free of freight charges on board cars at Leetonia, Ohio (the place of business of the plaintiff), “in about equal monthly proportions during the last three months of the year 1907,” time of delivery is not of the essence of the contract, and when the plaintiff shows that he was ready, willing and able to deliver the pig iron during the time agreed, but the defendant refused to receive it, he may recover damages for breach of the contract.</p> <p>2. Measure of Damages for Breach of Contract of Purchase is Difference between Contract Price and Market Price at Delivery.</p> <p>When the seller of pig iron is not the manufacturer of it, upon the breach of a contract for the purchase of pig iron from him, the measure of damages is the difference between the contract price and the market price at the time specified for delivery.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Purchaser cannot Recover for Municipal Property not Delivered.</p> <p>City officers can not bind the municipality as to title or quantity of property offered for sale, and a purchaser of property so offered can not maintain an action for the value of property not delivered.</p>

<p>CONTEACTS</p> <p>Extrinsic Evidence Admissible to Explain Term “Completed” used Ambiguously.</p> <p>In a written contract to install “a complete automatic sprinkler system such as will be satisfactory to the stock insurance companies, and when completed will meet strictly with their approval,” the work to be “completed in accordance with the requirements of the Ohio Inspection Bureau,” there is an ambiguity which authorizes extrinsic evidence as to the meaning of the word “completed.”</p>

<p>DIVORCE AND ALIMONY — DOWER</p> <p>Dower not Released by Divorce for Husband’s Aggressions in Absence of Election to Receive Alimony in Lieu Thereof.</p> <p>The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death is property, and the property right is not lost by her by divorce from him on his aggressions, unless she voluntarily release the same and agree to take a money consideration in lieu thereof, which, in an alimony case, may be awarded her upon her election.</p>

<p>STREET RAILWAYS</p> <p>Street Railway not Liable when Person, Knowing of Approaching Car, Drives on Track, Motorman not Having Time to Stop.</p> <p>When a person with knowledge that a street car is coming rapidly, drives upon the track and his hind wheel is struck before he clears the track and he is injured, there being no evidence that the motorman had time to stop his car in time to save the accident, there can be no recovery against the street car company.</p>

<p>CHATTEL MORTGAGES — REPLEVIN</p> <p>1. Mortgagee's Right to Take Possession if He Deems Necessary not Dependent on Reasonable Grounds.</p> <p>The rightful exercise by a mortgagee of chattels to take possession of them, under a covenant in the mortgage that he may do so if he at any time before the money becomes due, deems it necessary for his more complete and perfect security, does not depend upon the fact that he has reasonable grounds for deeming it necessary for his security.</p> <p>2. Mortgagee’s Depreciating Mortgaged Property Replevined Issue for Jury.</p> <p>An averment in a cross-petition in replevin that the plaintiff, during his possession of the replevined property failed to properly care and provide for it and permitted it to greatly depreciate and injured the same, and thereafter sold it at public auction for less than its value, presents an issue which must be determined by a jury.</p>

<p>ATTACHMENT AND GARNISHMENT — INFANTS</p> <p>1. Attachment not Discharged on Order Restoring Property to Other Person Claiming Same.</p> <p>Upon a claim of ownership of attached property by a person other than the defendant an order restoring the property to the claimant may be made, but it is erroneous to discharge the attachment'because of such claim.</p> <p>2. Judgment against Infant Personally Sued not Void.</p> <p>A judgment against an infant defendant, sued personally, is not void, but will remain subject to review until a sufficient time after removal of the disability of infancy shall have elapsed to bar such review.</p>

<p>BILLS AND NOTES</p> <p>Phrase “We or Either of Us” in Promissory Note Signed by Corporation Name and Officers’ Names Renders Officers Liable Also.</p> <p>When the words “we or either of us” and other kindred phrases appear in the body of a promissory note, signed by the proper officers of a corporation in the corporate name, but underneath the corporate name said officers sign their own names, though they affix thereto their appropriate official titles as such officers, the note will be construed as the note of the corporation and of said officers, as individuals. Aungst v. Oreque, 72 Ohio St. 551, distinguished.</p>

<p>MECHANICS’ LIENS</p> <p>One Filing Sworn Statements with Owner and County Recorder Within Four Months Lets Others in Filing Statements within next Succeeding Ten Days, though Four Months Elapsed.</p> <p>When a subcontractor, materialman, laborer, or mechanic has, within four months from the furnishing of his material or labor, filed his sworn and itemized statement thereof as provided by Sec. 8324 G. C. and files a copy thereof with the county recorder, as required by Sec. 8326 G. C., all other subcontractors, material-men, laborers and mechanics who file their statements within ten days thereafter, as provided by Sec. 8328 G. C., are thereby let in to participate in the fund, though more than four months have elapsed since their claims accrued.</p>

<p>CONTRACTS</p> <p>Recovery on Contract for Work and Labor Based on Breach or Completion and Measure of Damages.</p> <p>In an action growing out of a contract for work and labor, when the plaintiff relies upon repudiation of the contract before its completion by him, he should sue for its breach; if he alleges full performance, he must prove it, and in such case the measure of his recovery is the reasonable value of the work and not the sums expended to accomplish it.</p>

<p>SPECIFIC PERFORMANCE</p> <p>Imperfect Title Defense to Action for Specific Performance.</p> <p>The defense of imperfect title is good against an action to enforce specific performance of a'contract to purchase land, when it appears that the plaintiffs derived their title from one who to.ok by way of devise from his father, on condition that should he die without issue living, “the lands shall descend to my other children mentioned in this will share and share alike,” and when it appears from the testimony that the deviseé is still living and has children living.</p>

<p>EMBEZZLEMENT — STATUTES</p> <p>1. Punctuation of Statutes Disregarded.</p> <p>There is abundant authority in this state for disregarding or rearranging punctuation of statutes in order to effectuate the evident meaning of the legislature.</p> <p>2. Limitations Apply to Period within Which Different Conversions Aggregated.</p> <p>The three year limitation in Sec. 6842 R. S. (Sec. 12467 G. C.),'applies only to the period within which different conversions may be aggregated so as to constitute one embezzlement, and does not interpose any bar to the prosecution of the crime.of embezzlement.</p> <p>3. Judgment upon Exceptions to Guardian’s Inventory and Accounts not Admissible in Prosecution for Embezzlement.</p> <p>At the trial of one indicted for embezzlement of funds of one for whom he had been appointed guardian, the judgment and orders of a court upon exceptions filed to the accused’s inventory and accounts as guardian, are not admissible in evidence.</p> <p>4. Embezzlement Completed when Guardian is Unable or Refusing to Account for Aggregate Amount of Funds Received-by Him.</p> <p>The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time as it comes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times he finally refuses or is unable' to account for the aggregate amount.</p> <p>5. Accused not Concealing Receipt of Money but Claiming to Keep Funds in Good Faith Against Owner.</p> <p>One is not guilty of embezzlement who has not concealed the receipt of money alleged to have been embezzled, but on the contrary, has claimed in good faith to keep it under some right as against the owner.</p>

<p>BILLS AND NOTES — MORTGAGES</p> <p>1. Agreement to Release Endorser of Last Series of Mortgage Notes.</p> <p>One who has endorsed the last of a series of notes secured' hy mortgage upon an agreement that he is to be released from his endorsement upon the payment of the first note of the series hy the maker, his heirs or assigns, is not entitled to such relief upon payment of the first note out of the proceeds of sale of the mortgaged land upon foreclosure.</p> <p>2. Foreclosure on First of Series of. Mortgage Notes not Bar to Suit Against Endorser of Last Series after Due.</p> <p>To charge an endorser of the last of a series of notes secured by mortgage, it is to be deemed due according to its terms, irrespective of an agreement in the mortgage that all should become due upon failure to pay one; hence an adjudication in a foreclosure of said mortgage, brought against the maker and endorser of the notes before the endorsed note is due is hot a bar to another action against-the endorser after said note becomes due.</p>

<p>TAXES AND TAXATION</p> <p>City Board of Review has Power to Make Wholesale Increases in Valuation.</p> <p>A city board of review, under Sec. 5624 G. C. has power to make wholesale increases in the valuation of real estate in the city as fixed by the quadrennial appraisers, without making corresponding decreases.</p>

<p>WILLS</p> <p>1. Testamentary Capacity Presumption Distinguished as to Guardianship for Drunkenness and Insanity or Imbecility.</p> <p>Guardianship on the ground of intemperance does not raise the same presumption of testamentary incapacity as would be the case if the guardianship rested upon the ground of insanity or imbecility.</p> <p>2. Ward Boarding with Relation Raises no Presumption of Undue Influence.</p> <p>The relation of a ward under guardianship for intemperance, to a person with whom she boards under an arrangement made by the guardian for her, though such person has received certain instructions from the guardian as to the care of the ward, is not the same as the relation of the ward to the guardian, and does not, of itself, raise a presumption of undue influence in an action to set aside a will under which such person is a beneficiary.</p>

<p>BENEFICIAL ASSOCIATIONS — INSURANCE</p> <p>Payment of Benefits to Beneficiary Intended by Deceased.</p> <p>When a mutual benefit association pays into court the fund due the beneficiary of one of its deceased members with the statement that there are rival claimants to the fund and asks the court to determine to which claimant it shall be paid, the fund will be ordered paid to the beneficiary clearly intended by the deceased member, though by irregular designation, circumstances over which he had no control and his death preventing a change in beneficiaries strictly in accord with the rules of the association.</p>

<p>APPEAL — EJECTMENT—LIMITATIONS—REFORMATION OF INSTRUMENTS</p> <p>1. Action for Reformation of Instrument and Possession of Realty, Appealable.</p> <p>An action for the reformation of a deed or mortgage and recovery of the possession of the premises therein described, presents an issue not triable to a jury, and is appealable.</p> <p>2. Limitations in Ejectment by Assignee of Unrecorded Mortgage Runs from. Maturity of Note Secured.</p> <p>In an action in ejectment brought by the assignee of a mortgage which was not recorded until long after condition broken, the statute of limitations begins to run upon maturity of the note secured by the mortgage.</p>

<p>CHARGE TO JURY</p> <p>Erroneous Charge as to One of Several Issues Held not Prejudicial.</p> <p>When there arfe several distinct issues in a case, the overruling of a motion to properly direct the jury upon one of them is not prejudicial, unless such motion was in regard to a controlling issue in the case; whether such issue might or might not he controlling, depends upon the issues before the jury.</p>

<p>APPEAL — JUDGMENTS—PLEADING—TEIAL</p> <p>1. Power of- Common Pleas to Consider Petition Filed out of Rule without Order First Made.</p> <p>In an action appealed from a justice of the peace to the common pleas court, since the latter court has power to grant leave to file a petition out of rule, it has power to take up and consider it when it is filed out of rule, without first making an order on the subject.</p> <p>2. Vendee may Rescind and Recover Amount Paid on Contract.</p> <p>When a vendee of personal as well as of real property has a right, in consequence of the conduct of the vendor, to rescind, he may do so and recover back in an action for money had and received, the amount paid upon the contract.</p> <p>3. Allegation of Amount Due Being Material and Specific Judgment Rendered for Amount without Proof of Amount.</p> <p>When the allegation in a petition of the amount due is material and specific and not, in the sense in which those words are used in Sec. 11329 G. C., an ¿negation of value or damage, the action being on an implied contract for the payment of money only, and within the exception of Sec. 11357 G. C., under the provisions of Sec. 11329 G. C., it must be controverted by answer, and if not, the court, in the exercise of its discretion, has power to render judgment without proof of the amount.</p> <p>4. Default Judgment only Rendered when Reached in Regular Order or Special Assignment.</p> <p>Section 11592 G. C. authorizing judgment as upon default in certain eases, does not contemplate the entering of a default judgment at any time during the term after the defendant is in default for answer, as provided by Section 11383 G. C., but only when the ease is reached in its order or on special assignment.</p>

<p>BILLS AND NOTES</p> <p>Waiver of Demand and Notice of Nonpayment and Dishonor not Alleged by Statement that One Endorser Offered Certain Notes because Maker Could not Pay.</p> <p>In an action on a promissory note waiver by .evidence of notice of dishonor and nonpayment and demand is not sufficiently alleged by a statement that on a day just prior to maturity of the note one of three endorsers offered a renewal note with the same endorsers for part and the note of another for the balance of the amount of the original note, with a statement that the maker of the original note..could not pay it,-requesting that a new note be accepted in place of the original note, which request was refused.</p>

<p>MASTER AND SERVANT</p> <p>Liability of Master for Combined Negligence of Foreman and Fellow-Servants.</p> <p>In an-action by a workman against his employer for damages from personal injuries there may be a recovery, if the workman was without fault and his injury was proximately caused by the combined negligence of a foreman and fellow-servants. In such case it is merely necessary to show that one of the cooperating causes of the injury was a culpable act or omission for which the master would be responsible, and the rule holds good, whether the other causes were also defaults for which the master would- be responsible, or were due to some event or condition for which he is not required to answer.</p>

<p>CORPORATIONS</p> <p>1. Subscription for Preferred Stock Recoverable when Debts Exceed Assets and Unpaid Subscriptions.</p> <p>An action may be brought for the collection of a subscription to the preferred stock of a corporation upon its insolvency, when it appears that the debts of the corporation exceed its assets and the full amount of unpaid subscriptions to all of the common as well as to all of the preferred stock without waiting until all remedy against subscribers to common stock has been exhausted.</p> <p>2. Eighteen Months Limitation not Applicable to Actions for Unpaid Subscriptions.</p> <p>The limitation of eighteen months expressed in Sec. 8G88 G. C., within which an action upon the liability of stockholders must be brought, does not apply to an action to collect an unpaid subscription to stock.</p> <p>3. Purchasers from Trustee in Bankruptcy of Insolvent Corporation of Claims for Unpaid Subscriptions May Maintain Action against Subscribers.</p> <p>A trustee In bankruptcy of an insolvent corporation may, under proper order, sell claims for unpaid subscriptions to capital stock of tbe corporation and tbe purchasers of sucb claims from tbe trustee may maintain an action thereon against sucb subscribers, but whether be can recover from them more than be paid for tbe claims, quaere.</p>

<p>BILLS AND NOTES — JUDGMENTS</p> <p>Several Judgment Taken against Joint and Several Endorser but Joint Maker.</p> <p>A several judgment may be had against one who is a joint and several endorser but only a joint maker of a promissory note, leaving the action to proceed against the other makers of the note.</p>

<p>DIVORCE AND ALIMONY — MUNICIPAL CORPORATIONS</p> <p>Protection to City in Paying Alimony to Wife of Policeman.</p> <p>A wife brought an action in Cuyahoga county against her husband, who was a police pensioner of the city of Cleveland, for alimony and was allowed alimony in the sum of $25 per month which was ordered paid to her by the city, which was a party to the case, out of the husband’s pension. Subsequently the husband brought an action for divorce in another county against his wife and was awarded it on her aggression. Thereafter he filed a motion in the Cuyahoga county .court for modification of its alimony order, setting up the divorce decree as a reason why he should pay no more alimony; this motion was overruled and with knowledge of the divorce, the city continued to pay the wife as previously ordered. Thereafter the Cuyahoga county court granted another motion to modify the alimony order and stopped payments of alimony to the wife. In an action by the husband against the city to recover the money paid by it to the wife after it knew of his divorce from her; Held: The order in the alimony case was full protection to it notwithstanding the order refusing to modify the alimony awarded after divorce, was erroneous.</p>

<p>CRIMINAL LAW</p> <p>1. Police Officer’s Testimony in English in Translation of Statements of Accused in Italian, Admissible.</p> <p>Statements made by the accused in Italian in answer to questions put to him in the same language by police officers, after his arrest, may be given to the jury in English .by said officers, their ability to understand and translate Italian correctly being first inquired into and put before the jury.</p> <p>2. Accused Questioned on Cross Examination as to Different Story Told Police on Arrest.</p> <p>The accused having given evidence in his own behalf may, on cross-examination, be questioned as to a different story by him told to police officers after his arrest.</p>

<p>DAMAGES — EMINENT DOMAIN</p> <p>Damages Resulting from Interruption of Building Operations by Appropriation Proceedings Instituted and Abandoned in Good Faith, not Recoverable.</p> <p>Section 11060 G. C., prescribes the only remedy allowed by law to the owner, of property sought to be appropriated in a proceeding brought in good faith and subsequently abandoned.</p>

<p>CONTRACTS — RAILROADS</p> <p>Agreement to so Construct Sewer as not to Interfere with Railroad Requires Ordinary Care Measure of Duty.</p> <p>Under a covenant in an agreement between a contractor building a sewer in a city street and a street railroad company operating a street railroad in the same street, that the contractor “will construct said sewer south of the south or east bound tracks of second party and far enough therefrom so as not to interfere with said tracks or the ties and foundations supporting the same,” ordinary care in the construction of the sewer is the measure of the contractor’s duty.</p>

<p>LIBEL AND SLANDER</p> <p>Words Spoken by Priest in Sermon Charging Persons not Guilty of Crime with Being Criminals are Actionable.</p> <p>Unquestionably it is a part of the duty of a priest who has the spiritual charge of his congregation to look after the moral character of those in his church, to reprove them for immorality, and to do it with vigor and earnestly, but he can not charge in public those in his congregation who are not guilty of crime, with being criminals, without being required to respond in damages, as any other man is required to respond.</p>

<p>ERROR — TRIAL</p> <p>Variance not Ground for Reversal Unless Prejudicial.</p> <p>A judgment will not he reversed because of a variance between the pleadings and the proof and omission to conform the pleadings to the facts proved, unless the variance clearly misled the opposite party to his prejudice.</p>

<p>LANDLORD AND TENANT</p> <p>1. No Reformation of Ninety-Nine Year Lease for Confusion in Encumbrances upon Title of Lessor.</p> <p>When there was no mutual mistake as to the terms ol a ninety-nine year lease entered into between the parties, it is no ground for reformation of the lease that the parties were in some confusion as to the encumbrances upon the title of the lessor.</p> <p>2. Reduction of Rent for Encumbrance.</p> <p>When there is an encumbrance in the nature of an easement upon property which one has agreed to lease for ninety-nine years, and which encumbrance the lessor is unable to remove, the lessee may keep the premises and have his rent reduced proportionately.</p>

<p>BUILDINGS — COVENANTS</p> <p>Porch no Violation of Building Restrictions.</p> <p>A porch built upon restricted territory is not a violation of a restriction that the main body of any dwelling-house to be erected upon a lot shall be back a given number of feet from the street line.</p>

<p>PRINCIPAL AND SURETIES</p> <p>Materialman Subsequently to and without Knowledge of Contractor's Bond Denied Right to Maintain Action against Sureties.</p> <p>A materialman who furnishes material to a contractor which goes into the construction of a building, for the construction of which the contractor has given bond to the owner, conditioned also to “pay, or cause to be paid, all claims contracted in reference thereto for material and labor,” can not maintain an action for the value of the material so furnished against the sureties on the bond to the owner, it appearing that at the time said bond was given the claim of the materialman had not been created and that he did not know of the existence of the bond, or rely upon it when he furnished the material.</p>

<p>INSURANCE</p> <p>Opinion of Insured Valuing His Own Property, Giving Cost, Admissible.</p> <p>In an action on a fire insurance policy, covering household goods, the owner may give his opinion as to the value of his own property and evidence of its cost is some evidence of its actual value.</p>

<p>MASTER AND SERVANT — WORDS AND PHRASES</p> <p>1. “Other Kind of Machinery” In Employers’ Liability Act Means Wheel Kind.</p> <p>In Sec. 4364-89c R. S. (Sec. 1027 G. C.), which provides for the enclosure, with substantial railing, of all openings through floors, through, or in which wheels or belts may operate, the words “other kind of machinery,” means “other machinery of the wheel kind.”</p> <p>2. Common Law and Statutory Causes of Action against Employers Joinable.</p> <p>The common law and statutory cause of action for damages resulting from the negligence of an employer may both be set up and joined in the same petition.</p>

<p>ACTIONS — DEATH—ERROR</p> <p>1. Action for Death by Wrongful Act Failing Otherwise than on Merits Renewable within Year.</p> <p>Under Sec. 11233 G. C., if a plaintiff in an action for wrongful death fails otherwise than upon the merits, he may commence another action upon the same cause of action within one year thereafter.</p> <p>2. Ambiguous Statements as to Dismissal of Former Action for Death by Wrongful Act.</p> <p>When the statements in a petition are ambiguous as to whether a former action was dismissed by the plaintiff or by the court, without prejudice, admissions in brief and oral argument made in a reviewing court that the dismissal was voluntary, will preclude said reviewing court from reversing a judgment on demurrer based upon such meaning of the ambiguous words.</p>

<p>APPEAL</p> <p>1. Jurisdiction on Appeal from J. P. Involving as New Cause of Action, Equitable Relief, Denied Except upon Consent or Waiver.</p> <p>A justice of the peace having no equitable jurisdiction and plaintiff requiring equitable relief in the reformation of a bill of lading before he can recover, on appeal to the common pleas court, though it would have had jurisdiction of the case had it been brought there originally, that court can not entertain jurisdiction unless the parties consent thereto, or waive said objection.</p> <p>2. Motion by Defendant on Appeal to Require Plaintiff to Separately State and Number Causes of Action, Held Waiver by Appearance.</p> <p>A motion by defendant in such an appealed case that the plaintiff be required to separately state and number his causes of action, is an entry of appearance by the defendant, and waives objection to the jurisdiction of the court.</p>

<p>MALICIOUS PROSECUTION — MANDAMUS</p> <p>1. Judgment in Mandamus Conclusive in Collateral Proceedings.</p> <p>A judgment awarding a writ of mandamus is conclusive, in collateral proceedings, as to the truth of the facts stated in the application therefor and of the authority of the attorneys representing the applicants for such writ.</p> <p>2. Malicious Prosecution does not Lie for Bringing Mandamus while Judgment not Reversed.</p> <p>An action will not lie for maliciously and without probable cause suing out a writ of mandamus, so long as judgment awarding the writ stands unreversed.</p>

<p>ASSIGNMENTS FOR CREDITORS</p> <p>Director of Insolvent Trust Company Advancing Loan, Failing to Select Collateral as Security, Loses Equitable Lien on Securities.</p> <p>A trust company being in failing condition its directors were called together and requested to deposit with the company at least $5,000 each, it being agreed that if they would do so, each should have collateral security therefor “from the securities then owned by and in the possession of the trust company.” Only two of the directors complied with the request, one deposit-tag his money and receiving collateral as security therefor. The other (plaintiff), deposited $5,000 but neglected to get his collateral at the time and let the matter go until after the failure of the bank a few days later. No- particular securities were ever set aside for him; Held: He was not entitled to an equitable lien upon all the securities of the trust company which came into the hands of its assignee in insolvency.</p>

<p>COVENANTS — DEDICATION-EASEMENTS</p> <p>1. Residence Restrictions Based on Notice and Agreement of Plan.</p> <p>In order to enforce an alleged general plan for the restriction of all the lots in an allotment to use for residence purposes only, it must appear that sales were made with notice of the plan and under an agreement, express or implied, that the plan was to be carried out with respect to the lots sold.</p> <p>2. Common Law Dedication Insufficiently Proved.</p> <p>A common law dedication of a street is not proved by evidence that the original owner of the premises improved the street and sold lots with reference to it, referring to .an unrecorded plat, that the city renamed the street, placed a sign with the new name at a corner of the street, and' gas lamps on it, renumbering and cleaning the street.</p> <p>3. Right of Sufficient Egress and Ingress in Undedicated Street.</p> <p>Abutters upon an undedicated street have a right to have it kept open sufficiently for ingress and egress to and from their lots.</p>

<p>JUSTICE OF THE PEACE — TRIAL</p> <p>Appearance of Defendant at Time in Summons, Remaining One Hour and Departing without Action Taken Held Discontinuance.</p> <p>If the defendant in a justice court action appears at the time mentioned in the summons, and remains for an hour thereafter, and the plaintiff does not appear, whereupon the defendant departs without any action having been taken in the case, the result is a discontinuance of the case, and the justice has no jurisdiction, at some later day, to enter judgment against the defendant.</p>

<p>LANDLORD AND TENANT</p> <p>1. Right to Place Signs on Leased Premises Belongs to Tenant.</p> <p>The right to place signs upon the outside-walls of demised premises, is-appurtenant to the premises and belongs to the tenant.</p> <p>2. Signs Restricted to Side of Building in Lease Binding on Lessee.</p> <p>An agreement in a lease of part of a building that there shall :be no signs placed on the building in the space for signs in front and except that the tenant is given the exclusive right to place its own sign on the west side of the building, is a covenant on the part of the lessor as well as a restriction upon the rights of the lessee.</p>

<p>FEAUDS, STATUTE OF</p> <p>Payment, Possession and Improvements under Parol Contract.</p> <p>.Payment of the consideration money, possession taken, and lasting improvements made by the purchaser of lands under a parol contract, will take the contract out of the statute of frauds.</p>

<p>MOTIONS AND ORDERS</p> <p>Duplicate Motion May be Stricken from Files.</p> <p>A court is not required to pass upon the same matter more than once; hence there is no error in striking from the files a second motion to vacate a default judgment identical with one overruled five days before.</p>

<p>AUTOMOBILES — STREET RAILWAYS</p> <p>Automobile Driver Crossing Street Railway In Front of Approaching Car not Bound to Anticipate Negligence of Motorman.</p> <p>While one about to cross a street car track with an automobile In front of an approaching car is bound to use his- faculties for his own protection, yet ordinary care does not require of him that he anticipate negligence on the part of those operating the car, and whether or not he did exercise ordinary care in the light of all the circumstances, in attempting to cross the tracks in front of the approaching car, is a question which he has a right to have submitted to a jury.</p>

<p>ATTACHMENT — PRINCIPAL AND SURETY</p> <p>Surety on Bond of Justice of the Peace Liable for Misconduct of Special Constable.</p> <p>The obligation on the part of a surety on the official bond of a justice of the peace to respond in damages to one who has been injured by the misconduct and illegal acts of a special constable arises out of the bond on which he is surety, and the limitations on an action brought to enforce such obligation is ten years.</p>

<p>INTOXICATING LIQUORS</p> <p>Effect of Changes in Dry Local Option District.</p> <p>Under Sec. 6142 G. C., a wet petition can only be filed and allowed for the same residence district previously petitioned dry;, hence, if meanwhile part of the district has been cut off and added to another dry district the balance of the district can not become wet.</p>

<p>ACTIONS — CORPORATIONS</p> <p>Joinder of Causes of Actions for Unpaid Stock Subscriptions and Fraud for Inducing Sale Denied.</p> <p>To a cause of action brought by a stockholder for the collection of unpaid subscriptions to stock, said cause of action purporting to be for the benefit of the corporation, its creditors and all its stockholders, there can not be joined a cause of action in favor of the plaintiff as an individual against a resident of another county, for fraud in inducing plaintiff to buy his own stock. Summons in such case on the resident of another county will be set aside and Quashed.</p>

<p>TENDER</p> <p>Tender Vitiated by Attaching Condition.</p> <p>A tender of stock is not sufficient when there is coupled with it a condition that the party to whom the tender is made shall pay more for it than he has agreed to pay.</p>

<p>PLEADINGS</p> <p>Striking Pleadings from Files for Failure to Comply with Order of Court.</p> <p>The right to strike pleadings from the files because of the failure or refusal of the parties filing them to comply with orders made in respect thereto, is inherent in the courts, and it is no valid objection to the exercise of this right that the pleading ordered stricken off states a cause of action or a good defense.</p>

<p>EXECUTORS AND ADMINISTRATORS</p> <p>Title ■ of Endorser of Promissory Note, Endorsed by Administratrix without Distribution Order, Complete.</p> <p>One to whom a note is endorsed by the administratrix of the estate of a deceased payee, may maintain suit thereon, though no order of distribution in kind .was obtained from the probate court at the time, when it appears that all the debts of the estate had been paid and the distribution of the note was after-wards reported to the probate court and approved by it.</p>

<p>ERROR — REVIVOR</p> <p>1. Trial of Original Action After Reversal by Higher Court Necessary.</p> <p>When a judgment of the common pleas court, refusing to vacate a default judgment, affirmed by the circuit court, is reversed by the Supreme Court and the cause is remanded to the common pleas for further proceedings ’ according to law, it is error for the latter to enter judgment on the mandate of the Supreme Court vacating said default judgment without hearing and determining whether grounds for vacation and a valid defense exist</p> <p>2. .Revivor of Original Action on Remand and Death of Party.</p> <p>Upon death of one of the parties to a judgment after its reversal and remand to the trial court for further proceedings it is error to proceed with such new trial until the original action is revived.</p>

<p>BANKRUPTCY</p> <p>Bankruptcy — Involuntary Proceedings. Bankrupt May Maintain Suit Before Adjudication.</p> <p>A corporation can maintain an action on a claim due it after proceedings in involuntary bankruptcy have been begun, but before adjudication and appointment of a trustee therein.</p>

<p>INTOXICATING LIQUORS</p> <p>Proper Test as to Sufficiency of Residence Local Option Petition.</p> <p>The sufficiency of a petition in favor of prohibiting the sale of intoxicating liquors, filed under favor of Sec. 6140 G. C., is to be judged by the vote cast at the last regular municipal election held before the petition was filed.</p>

<p>MORTGAGES</p> <p>1.- Sale In Foreclosure Under Judgment for Excessive Amount not Set Aside.</p> <p>Though a decree in foreclosure may he for more than was lawfully due the plaintiff, if the sale thereunder produces only enough'to satisfy the amount confessedly due on the mortgage, the sale will not be set aside, for in such case, under Sec. 11702 G. C., the judgment creditor is required to make restitution only of the amount for which the mortgaged lands were sold, with interest, and that amount, at least, is confessedly due the mortgagor.</p> <p>2. Mortgage Security for Joint Indebtedness of Husband and Wife but Personal Liability Individual.</p> <p>Husband and wife being jointly indebted to a bank in the sum of $2,100 and the husband individually indebted to it in the sum of $10,314.52, the bank demanded of the husband that he give security for the liabilities of himself and wife suggesting “that if he could not pay, he and his wife give a mortgage” on certain premises owned by them, whereupon they jointly executed a new note for, $10,000 and a mortgage securing the same and delivered them to the bank, the amount of the new note being fixed at the estimated value of their equity in the property, there being a prior mortgage on it; Held: The mortgage secures the joint indebtedness of husband and wife and individual indebtedness of the husband, but the wife did not, by the transaction, increase her personal liability to the bank.</p>

<p>CORPORATIONS</p> <p>1. Presumption as to Knowledge of Directors of a Corporation.</p> <p>For the purpose of protecting the rights of innocent third persons, the knowledge of the directors of a corporation of those things which, in the exercise of their official duties, they ought to know, will be presumed.</p> <p>2. Ratification of Beneficial, Unauthorized Acts of Agents.</p> <p>A corporation may ratify the unauthorized acts of its agents, and no formal resolution of the board of directors is necessary for that purpose, and if the unauthorized act of an agent of a corporation is clearly beneficial to the corporation, a presumption of ratification will arise from slight circumstances.</p> <p>3. Corporation Operating Hotel for Accommodation of Sailors, Liable for Groceries Supplied, though not Formally Ordered by Directors.</p> <p>The Western Seamen’s Friend Society, incorporated under special act in 1850, whose purpose is the disseminating of moral and religious instruction and other charities amongst sailors and boatmen doing business on our western waters, and having power in furtherance of this purpose “to acquire, possess and enjoy, sell, convey and dispose of property, real and personal or mixed, whether acquired by purchase, gift,' devise or legacy, also of all property of which the society is now the legal and rightful owner; provided the annual income thereof shall not exceed the sum of $40,000, having purchased hotel ■ property particularly adapted to the accommodation of sailors, and operated it as such, purchasing groceries .therefor, from which operation it received a profit, is liable for the groceries so purchased.</p>

<p>APPEAL — COURTS—JUSTICE OF THE PEACE</p> <p>Appeal from Justice Court on Action for Money Had and Received on Rescinded Land Contract.</p> <p>A justice of the peace has jurisdiction of an action for money had and received, though that money was had and received as part payment on a contract for the conveyance of real estate, defendant refusing to convey and plaintiff electing to treat the contract as rescinded; hence such action is appealable to the common pleas court.</p>

<p>MECHANICS’ LIENS</p> <p>Lien for Work made Necessary by: Mistake of Architect.'</p> <p>When extra work on a house, made necessary by a mistake of the architect, is ordered by him under an arrangement with, the owner that the architect would pay for, it, the contractor who does tie extra work may have á lien therefor upon the interest •of the owner in the premises, notwithstanding he has knowledge of the arrangement between the architect and the owner that the former would pay the bill'.-</p>

<p>CORPORATIONS</p> <p>Corporation Bound by Contract Made by Secretary with Knowledge and Approval of President.</p> <p>When a by-law of a corporation provides that its contracts can be made only by its president, a contract made by its secretary, of which the president had knowledge and approved, is binding upon the corporation.</p>

<p>DAMAGES — DEATH—EVIDENCE</p> <p>1. Liability of Owner of Team for Death of Child Establlshed-by Proof of Agency of Driver.</p> <p>In an action against the owner of a wagon for death from wrongful-act occurring through the negligence of a driver of the wagon In running over an infant playing in the street, the fact that the driver was in charge of and driving the team attached to the wagon sufficiently established his agency- so as to charge the owner thereof with liability.</p> <p>2. Verdict of $800 for Death of Two Year Child not Excessive.</p> <p>A verdict of $800 for the death of an infant two years old will not be set aside as excessive, even though there was no evidence introduced as to the probable length of life of the infant or as to what it would probably have contributed to the support of the beneficiaries of the judgment, if it had lived.</p>

<p>CHARGE TO JURY — FRAUD—MORTGAGES</p> <p>1. Refusal to Instruct that Proof of Admitted Fact is Necessary Proper.</p> <p>It is not error to refuse to charge that the plaintiff can not recover unless she prove a fact which is admitted- in the answer..</p> <p>2. Action for Fraud Maintainable against Agent Making Representations after Judgment against Principal, Adjudicated Bankrupt.</p> <p>One who has been ■ defrauded by the misrepresentations of- an agent of an owner of property sold to her as to the incumbrances thereon, may maintain her action against such agent for the fraud, notwithstanding she has proved up her claim against the principal upon such principal’s adjudication in bankruptcy, but has realized nothing from the bankrupt’s estate.</p> <p>3. Maker of Note and Mortgage Induced by Fraud may' Recover for -Payment on Note Though Mortgage Defective.</p> <p>One who by fraud has been induced to give a note and mortgage on her property to an innocent third person, may recover from the person who so fraudulently induced her to give the note and mortgage, the amount thereof, notwithstanding the mortgage securing the note is defectively executed and unenforceably, she being required, however, to pay the note.</p>

<p>NEGLIGENCE</p> <p>Duty of Proprietor of Bowling Alley to Inspect to Render It Safe.</p> <p>The proprietor of a howling alley impliedly warrants that it is safe for the purpose intended, and is therefore under a continuing duty of inspection to see that it is safe, and if he neglects this duty the question of his knowledge or ignorance of a defect which renders it unsafe is immaterial.</p>

<p>CHARGE TO JURY</p> <p>Failure to Define Issues In Charge to Jury, Erroneous.</p> <p>It is reversible error for the court to neglect to state the issues in a case to the jury, when there are several issues of fact to be determined by it, and to refer the jury to the pleadings for a determination of the issues, notwithstanding the court at the conclusion of the charge asks counsel if they have anything further to which to direct attention and they answer in the negative.</p>

<p>PEOCESS</p> <p>Judgment not Vacated for Want of Service When Contradicting Evidence not Clear.</p> <p>A judgment will not be vacated because of no service on .the defendant, when the evidence contradicting the return of the sheriff of residence service is not clear and convincing.</p>

<p>BUILDINGS — COVENANTS</p> <p>1. "Residence Purposes Only” in Deed Restriction Means One Family Residence.</p> <p>A restriction in a deed that the premises conveyed shall be used for “residence purposes 'only,” means that a residence for one family only can be erected upon the premises.</p> <p>2. Owner Violating Building Restrictions cannot Enforce it against Another.</p> <p>One owner in an allotment who himself has violated such a restriction can not enforce it against another owner in the same allotment.</p>

<p>CRIMINAL LAW — ERROR</p> <p>1. Matters of Record Judicially Noticed Embodied in Bill of Exceptions.</p> <p>Matters of record in the trial court of which it takes judicial notice must be embodied in a bill of exceptions to be considered by a reviewing court.</p> <p>2. Resentence on Remand not Affected by Fact of Having Served Part of Erroneous Sentence.</p> <p>It is no objection to a resentence of one whose first sentence has been reversed by a reviewing court and the cause remanded for resentence, that the plaintiff in error has suffered some part of the original erroneous sentence.</p>

<p>BILLS AND NOTES</p> <p>Third Party Signing Promissory Note after Maturity on Promise of Extension of Time to Maker.</p> <p>One who, upon request of the payee, but without knowledge of the maker, of a matured promissory note,- signs said note as a maker, upon the agreement of the payee that he would extend the time for payment of the note, becomes personally liable thereon.</p>

<p>ATTORNEY AND CLIENT — ERROR</p> <p>Misconduct In Characterizing Defendant as Rich.</p> <p>It is misconduct of counsel for plaintiff to say to the jury in his argument, of and concerning the defendant, “He is a rich man. How did he get rich?' Just that way”; and where, upon objection by counsel for defendant, the trial judge neither reproves counsel, nor cautions the jury, and the facts are close, a judgment against the defendant will be reversed for such misconduct.</p>

<p>MASTER AND SERVANT</p> <p>1. Rule of Safe Place to Work not Applicable when Place Is Under Control of Another.</p> <p>The rule that an employer is bound to exercise ordinary care to furnish his employe a safe place to work, does not apply when the place is wholly under the control of another.</p> <p>2. Employe Bound by Rule of Knowledge as to Safety of Place to Work.</p> <p>Though the employer knew that such place under the control of another was not a safe place to work, or by the exercise of ordinary care might have known it, the employe can not recover if he also knew the same thing, or, by the exercise of ordinary care, might have known it.</p>

<p>NEGLIGENCE</p> <p>1. Instruction as to Contributory Negligence when Raised in Answer not Erroneous.</p> <p>In a personal injury damage case, when the answer of the defendant contains not only a denial of negligence on his part, but also alleges that the plaintiff was injured either by reason of an inevitable accident, or by his own negligence, it is not error for the court to charge the jury with regard to contributory negligence. Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1, and Cincinnati Trac. Co. v. Stephens, 75 Ohio St., 171, distinguished.</p> <p>2. Failure to Instruct as to “Inevitable Accident” Alleged not Fatal.</p> <p>No specific request being made thereto, it is not error to neglect to say to the jury that the plaintiff can not recover in case his injury was received as the result of an inevitable accident, though the answer alleges such to be the fact and there was some evidence tending to establish it, if the court distinctly charges the jury that there can be no recovery unless the evidence shows that the defendant was negligent and that his negligence, proximately caused the injury.</p>

<p>EMINENT DOMAIN — RAILROADS</p> <p>1. Pleading for Condemning Railroad Right of Way Need not State Termini.</p> <p>In appropriation proceedings by a railroad company for its original right-of-way, it is not necessary that the petition state the termini of the road, or that the parcels of land described in the petition are all the parcels within the county which are sought to be appropriated.</p> <p>2. Competency of Articles of Incorporation to Establish Railroad Right to Condemn.</p> <p>Articles and amended articles of incorporation of a railroad company are proper evidence of its incorporation and right to appropriate lands.</p> <p>3. Interest of Other Railroad in Appropriating Company not Competent.</p> <p>In an appropriation case brought by a railroad company it is not competent for the land owners to show that some other railroad company is interested in the appropriating company and will be benefited by the result of the proceedings.</p> <p>4. Belt or Terminal Railroad may Exercise Eminent Domain.</p> <p>A belt or terminal railroad company, duly incorporated under the laws of Ohio, may exercise the right of eminent domain.</p>

<p>WILLS</p> <p>1. Rule of Expert Evidence In Will Contest in Direct and Cross-Examination Distinguished.</p> <p>The rule which requires that one in putting hypothetical questions to his own expert witness must confine his hypothesis to matters upon which evidence has been introduced, does not extend in its full force to the cross-examination of such witnesses. In cross-examining such expert witness questions may be put based upon some other hypothesis which the cross-examiner hopes to establish by evidence.</p> <p>2. Expert Limited to Opinion of Testator to Make Will.</p> <p>An expert may not be called upon to say whether one was competent to make a particular will, but only whether, in his opinion, his mental capacity was such as the law requires for the making of a valid will.</p> <p>3. Instruction that Probate of Will is Unimportant In Will Contest is Erroneous.</p> <p>In a will contest case it is misleading to charge the jury that it is of no importance what the probate judge did in probating the will, and that they are not to be influenced by what he did.</p>

<p>CHATTEL MORTGAGES</p> <p>1. Mortgage of Goods with Right to Sell Reserved by Mortgagor, and Accounting for Proceeds to Mortgagee.</p> <p>A provision in a chattel mortgage on a stock of merchandise that the mortgagor may make sale of the merchandise in the usual way, making an accounting of such sales to the mortgagee at the end of thirty days, intends that at the accounting the morgtagor shall pay over the proceeds of the sales to the mortgagee, and as such, is not void per se as to other creditors. Kleine v. Katzenberger & Go., 20 Ohio St. Ill, followed.</p> <p>2. Chattel Mortgage Condition for Accounting of Sales of Merchandise not Observed by Parties Invalid as to Creditors.</p> <p>Notwithstanding such provision in a mortgage of merchandise, it will be considered void as against creditors of the mortgagor, if the circumstances and conduct of the parties shows that such accounting was never acted upon by the parties, or intended to be acted upon.</p>

<p>DIVORCE AND ALIMONY</p> <p>Wife Granted Small Alimony on Separation when Both Guilty of Ill-Treatment.</p> <p>Small alimony will he decreed a wife on the ground of “separation in consequence of ill-treatment on the part of the husband” when it appears that ill-treatment on her part equals his.</p>

<p>APPEAL</p> <p>Petition on Appeal Stating Different Cause of Action from That before J. P. Stricken from Files.</p> <p>Plaintiff sued before a justice of the peace for the agreed price of a monument sold and delivered to the defendant at her request; on appeal he filed a petition setting forth a contract between the parties for the monument, alleging that the defendant repudiated the contract and ordered work upon the monument to be stopped, which was done, and claiming damages for the breach of the contract. Held: The cause of action stated in the petition in the common pleas court varied so from the cause of action stated in the bill of particulars filed with the justice, that the common pleas court was justified in striking said petition from the files.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Ordinance Approved by Vice-Mayor when Mayor Temporarily Absent not Valid.</p> <p>An ordinance of a municipality which the mayor thereof vetoes and returns to the council before its next session, is not rendered valid by the approval of the vice-mayor and his signature to it, given in the interim on a day when the mayor is temporarily absent from the city.</p>

<p>WILLS</p> <p>Devise of “All My Personal Property * * * except * * * Disposal to Other Parties” does not Carry Money in Bank in Devise to Churches Named Falling because Testatrix Died within Year.</p> <p>A bequest of “all my personal property of every kind whatsoever, except what is hereinafter by this will disposed of to other parties,” does not carry with it money in the bank bequeathed by a subsequent clause of the will to two churches, which by reason of the statute against bequests within a year of testator’s death, can not take thereunder.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Municipality Liable for Damages Caused by Backing Up of Sewer.</p> <p>A municipal corporation is liable for damages to a lot owner by the flowing back into his cellar of filth from a sewer with which it is attached, by reason of the negligent overloading of said sewer by the municipality.</p>

<p>BANKRUPTCY</p> <p>Bankruptcy of One Judgment Debtor not Bar to Revivor against Other Joint Debtors.</p> <p>In proceedings to revive a joint judgment against three makers of a promissory note, the discharge in bankruptcy of one of them from his indebtedness thereon is no defense to a revival of the judgment against the other two, notwithstanding the debt was not proved up in the bankruptcy proceedings, there being no assets of the bankrupt for distribution to his creditors.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Charge to Jury in Action against Municipality Stating that Negligence of Gas Company was Issue Conclusive Evidence in Action by Municipality for Reimbursement against Gas Company.</p> <p>In an action by a municipality to recover the amount of a judgment recovered against it, which it has paid, brought against a gas company holding a franchise from it authorizing it to lay pipes in the streets of the municipality and furnish gas to its inhabitants, by the terms of which franchise the gas company agreed to defend all actions brought against the municipality for damages resulting from its excavations in the streets, and pay all judgments against the city for such damages, when the issue between the gas company and the city is whether the judgment against the city was for damages resulting from the sole negligence of the gas company in leaving unguarded an excavation in the street made by it, or for independent negligence of the city in some other respect, the charge of the court in such former action with respect to the issue submitted to the jury therein is conclusive evidence with respect thereto, no matter what evidence was permitted to be introduced in the case.</p>

<p>DAMAGES — PARENT AND CHILD</p> <p>1. Payment of Wages to Mother does not Prevent Father Suing Person Inflicting Injuries for Loss of Services.</p> <p>In an action by a father for loss of a minor son’s services by reason of injuries inflicted upon the son by the defendant, the fact that the son, while working, paid over his earnings to his 'mother instead of to his father, the father, mother and son living together and constituting a single family, does not indicate that the father is not the proper party to sue for loss of earnings of the son.</p> <p>2. Presumption that Minor, Living with Parents though Working for Wages, not Emancipated.</p> <p>The presumption is that a minor son living with his parents, though working for another for wages, is not emancipated.</p> <p>3. Father Entitled to Reimbursement for Hospital and Physicians in Action for Injuries to Son.</p> <p>A father may recover for expenses incurred for medicines, physician’s services and hospital expenses made necessary in the care of his minor son, by reason of injuries inflicted upon him by the defendant.</p> <p>4. Board and' Lodging not Deducted from Hospital Expenses in Suit for Injuries to Son.</p> <p>The per diem charges of a hospital for care of minor, son- of the plaintiff injured by the defendant, are not to be reduced by the value of his board and lodging at home during' the time he is at the hospital. .</p>

<p>ERROR — PROCESS</p> <p>1. Amendment Falsifying Return on Summons not Permitted.</p> <p>No amendment can be made to a summons which will falsify the sheriff’s return thereof.</p> <p>2. Summons in Error Made Returnable on or before First Day of Next Term, Irregular but Sufficient.</p> <p>Notwithstanding Sec. 12259 G. C. provides that a summons on á petition in error to the circuit court if issued in term time shall be made returnable on a day therein named, still a summons so issued and made returnable on or before the first day of the next term of court is sufficient though irregular, and service thereof will not be set aside.</p>

<p>NEGLIGENCE — WITNESSES</p> <p>1. Inquiry as to Physician’s Acting as Expert for Defendant Corporations not Erroneous.</p> <p>In a personal injury damage case against a corporation, it is not reversible error to ask a physician, testifying as an expert for the defendant, if he has not frequently acted as an expert for defendant corporations.</p> <p>2. Inquiry of Expert Excluding Possible Causes Other than Accident Competent.</p> <p>It is competent to ask an expert witness in such a case, if certain injuries from which the plaintiff is shown to be suffering, could be attributed to an accident of the character claimed in the petition, if followed by other evidence tending to exclude all other possible causes than the accident itself, and tending to establish an actual causal relation between the accident and the injuries in question.</p> <p>3. Headache Included in “Internal Injuries.’’</p> <p>When a petition alleges internal injuries generally, evidence may be received that the plaintiff suffered from pains in the head, irregular menstruation, enlarged ovaries and displaced womb.</p> <p>4. Verdict of $3,500 not Excessive though Woman not Permanently Crippled.</p> <p>A judgment for $3,500 is too large though it is not shown that the plaintiff was permanently crippled in any manifest way, nor that there will be any great permanent impairment of her general health or incapacity in the performance of her duties.</p>

<p>TRUSTS — WILLS</p> <p>Trust to Provide Luxuries for Inmates of Infirmary Enforcible.</p> <p>A trust created in a will for the purpose of providing for the inmates of a county infirmary such luxuries as they would not have in the regular administration of the institution, is not illegal or impossible of accomplishment.</p>

<p>CRIMINAL LAW — FORGERY</p> <p>1. Disregarding Certificate of Prejudice Filed on Trial Day.</p> <p>It is not error for a trial judge to disregard an affidavit of prejudice filed on the day of the trial.</p> <p>2. Misstatements by Prosecutor in Opening Statement not Prejudicial if Ordered Disregarded.</p> <p>No prejudice results from misstatements as to the crime charged by the prosecuting attorney in his opening statement of the case to the jury in a criminal case, if, after the evidence is all in thB trial judge instructs the jury to consider only the evidence admitted and to disregard all statements of the prosecuting attorney with regard to evidence offered, but not admitted.</p> <p>'3. Uttering and Publishing Forged Note.</p> <p>One who seeks to obtain money on a forged check purporting to be payable to himself, by presenting it to the bank on which it is drawn and asking that it be cashed, is guilty of uttering and publishing the forgery, though it is not until afterwards that he endorses his name iipon the back of the check.</p> <p>4. Circumstantial Evidence Sufficient to Lay Foundation for Comparison of Writings.</p> <p>Circumstantial evidence may be sufficient to lay a proper foundation whereby one writing is so authenticated as to authorize the comparison therewith of another writing to show identity or diversity of authorship.</p> <p>5. Accused Absenting Himself during Trial not Conclusion of Proceedings except Sentence.</p> <p>If, after the trial of a felony case has begun and before it is finished, the accused absent himself, the trial may continue, after forfeiture of the recognizance, and the verdict be received and recorded, but sentence can not be pronounced until the accused is in court, or is retaken.</p>

<p>ATTACHMENT-EXEMPTIONS</p> <p>Lewd Woman Held Entitled to Homestead Exemption as against Attachment.</p> <p>It is no reason for refusing to discharge an attachment of goods shown to he the property of a married woman living with her husband, neither of whom have a homestead and the goods being claimed as exempt in lieu of a homestead, that the debtor is a prostitute, plying her vocation.</p>

<p>COVENANTS</p> <p>Restrictions in Deed as Part of General Plan Enforclble.</p> <p>Restrictive covenants contained in a deed in defendant’s chain of title, of which he had constructive notice, which are part of a general plan or scheme of restrictions published and adhered to by plaintiff and its trustee, will be enforced notwithstanding plaintiff has offered to sell the defendant other lots in the allotment, without restrictions.</p>

<p>BILLS AND NOTES</p> <p>1. Authority of Wife to Collect and Pay not Extended to Execute Promissory Note in His Name.</p> <p>"When a husband authorizes his wife to collect what is owing to him and pay what is owing by him, that does not authorize her to give a promissory note to pay part of his debts and sign his name thereto.</p> <p>2. Liability of Wife as Accommodation Maker.</p> <p>One who receives a note purporting to be the note of his debtor and the debtor’s wife, to pay an antecedent debt of the husband, may enforce said note as against the wife, notwithstanding she signed her husband’s name to - the note without his authority, the creditor not knowing that fact.</p>

<p>CRIMINAL LAW — INTOXICATING LIQUORS</p> <p>1. Prejudice against Liquor Traffic not Disqualification to Juror.</p> <p>In a trial for knowingly selling intoxicating liquor to a minor, the fact that a proposed juror admits that hé has a prejudice against the business of selling intoxicating liquors, does not sustain a challenge for cause.</p> <p>2. Knowledge of Minority from Appearance of Prosecuting Witness before Jury.</p> <p>The claim that the evidence fails to show that the accused knew of the prosecuting witness’ minority, is met by the fact that the jury saw said witness.</p> <p>3. Inability of One Witness to Identify Accused beyond Reasonable Doubt Collective Effect of all Their Testimony Sufficient to Dissipate Doubt.</p> <p>Though no one of the witnesses in a criminal case identifies the accused beyond a reasonable doubt, the collective effect of all their testimony may be sufficient to dissipate any doubt upon that subject.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Failure of Taxpayer to Request that Action be Brought Fatal, Though no Solicitor.</p> <p>An action can not be maintained by a taxpayer against a village, under favor of Sec. 1536-668 R. S. (Sec. 4314 G. C.) where the petition fails to show a request upon the village solicitor or any other official to bring the action and his refusal or neglect so to do, even though the village has no solicitor.</p>

<p>ACTION — CORPORATIONS</p> <p>Procedure in Action to Subject Liability of Trustees of Corporation Not for Profit Same as Stockholders’ Liability Suit.</p> <p>An action to subject the statutory liability of trustees of a corporation not for profit, stands on the same footing as a stockholder’s liability suit, and is governed as. to matters of procedure by Sec. 3261 R. S. et seq. (Sec. 8666 G. C.)</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Liability of Municipality for Medical Services Rendered Quarantined Small-Pox Patient.</p> <p>Under favor of Sec. 1536-741 R. S. (Sec. 4432 G. C. et seq.), a physician who renders medical service to a quarantined small-pox patient, who is unable to pay therefor, is entitled to recover compensation from the municipal corporation which was promptly apprised of the situation, but tools; no action with reference thereto.</p>

<p>BASTARDS — PERJURY</p> <p>Bastardy Case Brought by Married Woman, Impossible to Predicate Perjury Upon.</p> <p>One can not be convicted of perjury for false swearing in a bastardy case before a justice of the peace, when the affidavit upon which the justice’s jurisdiction depends shows that the complainant is a married woman.</p>

<p>INTOXICATING LIQUORS</p> <p>Ordinance for Regulation of Sale of Intoxicating Liquor without Druggist Exception Held Defective.</p> <p>tinder Sec. 1536-100 R. S., Subd. 5, a municipal corporation has no authority to enact an ordinance to regulate the sale of intoxicating liquors, which does not contain the “regular druggist” exception found in Sec. 4364-20c R. S. (Sec. 6065 G. C.)</p>

<p>CIVIL RIGHTS</p> <p>Authority of Doorkeeper and Ticket Taker at Skating Rink.</p> <p>In an action for damages under the civil rights act, for refusal of admission to a roller skating rink, when there is nothing in the record to show that the doorkeeper of the defendant corporation was entrusted by it with any authority or duty whatever beyond the taking of tickets and the admission of persons with tickets to the floor, explanations of the conduct of any other employe of the defendant, or any other feature of its business, is not within the sphere of the doorkeeper’s agency.</p>

<p>TRUST AND TRUSTEES</p> <p>1. Division of Estate Held in Trust for Widow Postponed to Her Decease.</p> <p>Under a will creating a trust for the testator’s widow’s life in property devised to a son and daughter, and directing “the same to be parted and divided between them share and share alike as they may agree; said division not to be made until after the decease of my said wife Matilda but the property to remain intact until that event, and until then the rents of the real property shall go into my estate for the purpose of paying the eight hundred dollars per year to my said wife,” etc., “and in case either my son or daughter should die before a division of my estate, leaving no heir or heirs, that in that case the whole of said property shall go to the survivor of them,” unless all the beneficiaries of the trust consent, it is beyond the power of the parties or of the court to enforce a division of the estate until after the widow’s death.</p> <p>2. Trustee Preferably Appointed to Administer Trust Estate though Administrator May Act in Interim.</p> <p>A trustee, eo nomine, should be appointed to administer the trust created under such a will, but an administration de bonis non will include the administration of the testamentary trust, until a trustee for the purpose is appointed.</p>

<p>MUNICIPAL CORPORATIONS — NUISANCE</p> <p>Plaintiff Denied Right to Prevent Nuisance in Vacated Street.</p> <p>A taxpayer neither can maintain an action against a municipality and others for obstructing a street, either in his individual capacity or as an abutter upon the street, unless the nuisance sought to he abated is private and personal to him, affecting him or his property in a manner differing not merely in degree, hut in kind from its effect upon the community in general, nor can he maintain such action as a taxpayer, for want of statutory provision therefor.</p>

<p>WILLS</p> <p>Widow May Will Property Devised “to Her and to Her Disposal.”</p> <p>A widow who has received real estate under her husband’s will “to be to her and to her disposal during her life," may dispose of the same by her will.</p>

<p>RAILROADS</p> <p>Locomotive Engineers on Same Road are Fellow-Servants.</p> <p>Two engineers, on different locomotives, are fellow-servants, and where one is killed solely on account of the negligence of the other, there can be no recovery against the railroad company.</p>