Volume 35 — Ohio Circuit Court Decisions

<p>DIVOECE AND ALIMONY</p> <p>Decree on Application for Divorce and Alimony not Bar to Subsequent Action for Alimony.</p> <p>The dismissal of a petition for divorce and alimony based upon charges of extreme cruelty and gross neglect of duty is not a bar to an action for alimony and support of a child, even though based upon the same acts of cruelty and neglect set forth in the first petition, when there is a further allegation that those acts have resulted in a separation and that the plaintiff and the child are destitute and not in good health.</p>

<p>CORPORATIONS</p> <p>Liability of Company for Defalcation of Its Transfer Agent.</p> <p>When a corporation has made it possible for its transfer agent to mix and confuse stock which he held as trustee for various parties with treasury stock of the company, and a large part of the stock entrusted to the transfer agent is lost through his defalcation, the company is liable to those for whom the transfer agent acted as trustee for such of the stock entrusted to the transfer agent as was returned to the treasury of the company.</p>

<p>APPEARANCE</p> <p>1. Appearance not Effected by Informal Complaint of Attorney as to Appeal Bond.</p> <p>Complaint of defendant’s attorney made informally, that the amount of an appeal bond was insufficient to protect his client’s interest, does not constitute an entry of appearance, when the record does not disclose that any motion or application to increase the bond was ever filed.</p> <p>2. Appearance' for no other Purpose than to Strike Out Petition not Appearance Generally.</p> <p>When in a motion to strike a petition from the files, it is expressly provided that the defendant enters his appearance for the sole purpose of making that motion and for no other purpose, this proviso inheres in an application to amend the motion, filed at a later date, and such application to amend the motion does not amount to an entry of appearance generally.</p>

<p>CRIMINAL LAW</p> <p>Error in Admission of Evidence Cured by Withdrawal of Evidence at Any Time.</p> <p>When in the trial of a criminal case, incompetent evidence offered by the state has been admitted over the objections of the defendant and exceptions noted, but such evidence is subsequently withdrawn and the jury clearly told to disregard it, the judgment should not be reversed for the admission of such evidence, unless it is manifest from the whole record that the jury disregarded the instructions of the court; hence, it is not important at what time the evidence is withdrawn from the consideration of the jury so long as it is clearly withdrawn before the case is finally submitted to them.</p>

<p>ATTORNEY AND CLIENT</p> <p>Attorneys may be Proceeded against Summarily for Refusing to Turn Over Papers of Client.</p> <p>An attorney may be proceeded against in a summary way, by motion, for refusing or neglecting to turn over papers and documents belonging to his client.</p>

<p>CARRIERS — STREET RAILWAYS</p> <p>1. Carrier Bound by Known Impending Intervening and Independent Danger to Exercise Care Toward Passenger.</p> <p>A carrier of passengers is not liable for the act of an intervening independent agency; but when there is a known impending danger from a source for which the carrier is not responsible, then the law imposes upon the carrier a degree of care in respect to such impending danger; however, the degree of care in such case depends upon the conditions and circumstances of the particular instance, varying with those conditions, and is not that absolute degree of care which a carrier owes to its passengers under ordinary conditions.</p> <p>2. Care Exercised by Carrier to Passenger During Strike.</p> <p>The law requires of a carrier of passengers operating its care while a strike is in progress and while known dangers exist, the highest degree of care practicable for the safety of its passengers in view of the existing and known conditions, consistent with the practical operation of and management of its cars.</p> <p>3. Carrier not Liable for Injuries from Explosive Placed on Track During Strike.</p> <p>When passengers upon a street car are injured by the explosion of an explosive placed on the tracks by some miscreant, at a time when a strike of the employes of the street-railway company is in progress and after numerous other similar explosions had occurred, the company is not liable unless the conditions existing at the time were of such a nature that it had reason to expect damage to its cars and injury to its passengers from explosives, and therefore should have adopted extraordinary precautions to avoid such damages and injuries and failed so to do.</p>

<p>BUILDINGS — MUNICIPAL CORPORATIONS — OFFICERS</p> <p>1. Acts of De Facto Officers Valid.</p> <p>The acts of a de facto officer acting under a law, which at the time had not been declared unconstitutional, are valid.</p> <p>2. Power of Municipalities to Raze Dangerous Buildings.</p> <p>The state in the exercise of its police power may delegate to municipalities the right to raze buildings which become dangerous to life or property.</p>

<p>BENEFICIAL ASSOCIATIONS — WILLS</p> <p>1. Step-Children may be Beneficiaries as “Members of Family.”</p> <p>When step-children, taken into the home at a tender age are reared as children of the step-father and after marriage one of them remains in the home of the step-father, they can be designated as beneficiaries of a member in a mutual benefit association, whose constitution requires that beneficiaries shall be members of the family or someone related to the member by blood.</p> <p>2. Designation by Will of Beneficiaries by Member of Benefit Association.</p> <p>The designation of the beneficiaries of a member of a mutual benefit association may be made by will so long'as those designated belong to the class from which they are to be selected.</p>

<p>INSURANCE</p> <p>Defending Action Brought Against Insured, not a Waiver of Conditions in Policy.</p> <p>In an action against a casualty insurance company to recover the amount of a judgment for personal injuries secured against the holder of a policy by one of his employes, the fact that the insurance company defended the action in which the judgment was secured against the assured, does not amount to an estoppel, nor is it a waiver of conditions in the policy that it shall not cover loss from liability for any injuries caused by failure of the assured to comply with the requirements of any law respecting the safety of persons, nor to injuries resulting through the employment of a child.</p>

<p>RAILROADS</p> <p>1. Occupation of Street by Five Railway Tracks, Unreasonable.</p> <p>There is no power or authority in a municipal council to grant the right to a railway company, either by ordinance or agreement with the company, to occupy, incumber and use a street by crossing it with five tracks connecting with a railway yard and in reality becoming a part of the yard, particularly where access to the yard can be had without thus occupying the street; nor could the right so to do be acquired by appropriation.</p> <p>2. City Solicitor m(ay Enjoin Unreasonable Occupation of Streets with Railway Tracks.</p> <p>There is ample authority in Sec. 4311 G. C. for the bringing by the city solicitor of injunction proceedings against the unreasonable occupation of a street with railway tracks, regardless of failure on the part of council to authorize him so to do.</p>

<p>POSSESSION</p> <p>Ownership of Land Taken in Name of Attorney of Corporation Which Entered into Possession.</p> <p>A purchase of land by one who in other matters was acting as the attorney and agent of a corporation which at once took possession of the land, will be regarded as having been made for the corporation notwithstanding title was taken by the attorney in his own name, where the corporation thereafter issued stock to the attorney in an amount in face value somewhat exceeding the price of the land and remained in undisputed possession for more than ten years without any claim having been made by the said attorney on account of the land or any attempt to collect rent for its use; and an action to recover possession of the land, brought by one to whom it was conveyed by the said attorney and who had full knowledge of all the circumstances surrounding its purchase by the attorney will be dismissed and title established in the corporation.</p>

<p>DEEDS — EVIDENCE—POWERS—WILLS</p> <p>1. Running of Statute of Limitations not Stopped by Transfer of Property by Ancestor.</p> <p>When an interest in realty vests upon the death of the life tenant, the running of the statute of limitations against the assertion hereof is not stopped by the transfer of the property by an ancestor.</p> <p>2. Recital in Old Deed of Power of Executrix to Sell to Pay Legacies, Admissible, Original Records being Destroyed.</p> <p>A deed made by an executrix almost fifty years ago, containing the recital that the executrix was given full power to convey, but without a specific statement of such power as contained in the will, is competent as evidence of -such power, when the original records have been destroyed and the possession of the property has been consistent with the terms of the deed; hence, such proof is sufficient to sustain a title depending upon the existence of such power and casts the burden upon those seeking to impeach it.</p> <p>3. Inference of Necessity to Sell Real Estate to Pay Pecuniary Legacies.</p> <p>The evidence in this case creates a strong inference that a necessity arose to sell real estate belonging to the testator in order to pay pecuniary legacies and prevents a reversal of the judgment by a reviewing court as against the weight of the evidence.</p>

<p>WILLS — WOEDS AND PHEASES</p> <p>“The Income” Construed to Mean all Income from Testator's Estate.</p> <p>Tlie bequest “the income hereinafter devised to my said wife in lieu of her dower and all other interests in my estate as widow,” in the absence of any reference to any income to accrue to the trustees or any direction as to its investment or disposal, is construed as importing an intention to give all the income to the widow during her lifetime.</p>

<p>APPEAL — DRAINS AND DITCHES</p> <p>Time for Perfecting Appeal When Ditch Claims for Damages have been Rejected Runs from Date of Order of Location.</p> <p>An appeal from the order of a joint board of township trustees, rejecting claims on account of land taken and other damages on account of the construction of a proposed township ditch, should be filed within eight days from the entering of the order locating and establishing said ditch, and is rendered ineffective by construing the time for perfecting said appeal to be within eight days from the date of the order apportioning the construction among the parties interested.</p>

<p>EASEMENTS</p> <p>Abandonment of Easement in Canal Lands by Railway ini Failing to Pay Taxes or to Fence.</p> <p>A railway company appropriated an old canal bed with all tbe privileges and appurtenances of whatever nature connected therewith, which included a basin containing about ten acres of land theretofore used in turning boats. The basin was not needed by the railway, and in time dried up, and was continuously farmed by the adjacent owners for almost fifty years, when the railway asserted title to an easement therein, and caused this land to be transferred to its name for taxation. During the long interval the railway had been required to fence its road, and in doing so built a fence which followed the line of the railway track, and did not include the basin. In an action by the adjacent owners, whose deeds covered this basin, to have their titles quieted, Held:</p> <p>That the railway company in taking over the right-of-way of the canal company, which included this tract of land, took more than it needed or has had occasion to use, and by its acts in not including this land with its own property for taxation, and in placing its fence as it did, and in permitting others to use the land without hindrance, evinced an intention to abandon its easement therein, and the plaintiffs are entitled to a decree quieting their title as against such easement.</p>

<p>COUNTIES — HIGHWAYS</p> <p>County Comimissioners to Proceed with Road Improvement Governed by Petition of “Majority” of Resident Owners within Mile of Improvement Contemplated.</p> <p>Whether county commissioners have jurisdiction under the Garrett law to proceed with a road improvement is to be determined by the provision of Sec. 6926 G. C. for a petition by “a majority of the resident owners of real estate situated within one mile of the road,” without reference to a provision of Sec. 6929 G. C. which eliminates “land owners residing within a municipality,” and is void for uncertainty.</p>

<p>BENEFICIAL ASSOCIATIONS</p> <p>Property in Name of Branch Organization Subject to Claims of Beneficiaries of Parent Society.</p> <p>When a subsidiary body is officered by the same officers as those who control and dominate the parent body, and has as its purpose the rendering of assistance to the parent body, and its purpose and character has always been so understood by all the members of the parent body and has always been so declared and those who became members of the parent organization did so in the belief that it embraced this subsidiary property in the hands of a receiver and standing in the name of the subsidiary will be administered for the benefit of the parent body.</p>

<p>DAMAGES — MALICIOUS PROSECUTION — TRIAL</p> <p>1. Failure to Release Attachment on Mistake of Parties Warrant Finding of Malicious Prosecution.</p> <p>The discovery among the belongings of J A B of canceled checks drawn by J B affords reasonable ground for the belief that the bank account upon which these checks were drawn belonged to J A B, but having been informed, after the bringing of a suit in attachment against JAB and the garnisheeing of this account, that JAB and J B were two different persons and that the said account did not belong to J A B, it became the duty of the plaintiff at once to release said attachment, and failure so to do warranted the finding in the court below that the suit was being maliciously prosecuted.</p> <p>2. Confusion in Use of “Testimony” and “Evidence” Interchangeably and “Fair Preponderance” instead of “Preponderance.”</p> <p>"While it is error, in a charge to the jury, to use the words “testimony” and “evidence” interchangeably, or to use the words “fair preponderance- of the evidence” instead of “preponderance of the evidence,” it does not afford ground for reversal when the prejudice, if any arose from such use, was against the defendant rather than the plaintiff in error.</p> <p>3. Measure of Damages In Malicious Prosecution.</p> <p>The measure of damages for the bringing of a suit in attachment without probable cause and maliciously is such compensatory damages as will make the plaintiff whole for expenses incurred in securing a discharge of the attachment and loss of the use of the property, together with counsel fees and punative damages on account of the humiliation and injury sustained by the plaintiff by reason of the suit.</p>

<p>PRINCIPAL AND AGENT</p> <p>Purchaser Procured must be Able, Ready and Willing to Fulfill His Part of Contract to Purchase Realty for Agent to Recover Commission.</p> <p>In an action for recovery of a commission for sale of real estate, tlie petition is demurrable when there is no allegation that the purchaser who was procured was able to buy the property on the terms proposed; and when the evidence fails to cure this defect by showing that the proposed purchaser was able, ready and willing to make the purchase, a motion to direct á verdict for the defendant should be granted.</p>

<p>BRIDGES — COUNTIES</p> <p>County not Liable for Injury from Defective Approach to Bridges in Absence of Showing that Repairs Exceed Fifty Dollars.</p> <p>A claim for damages on account of injuries, alleged to have been due to negligence in keeping the approach to a bridge in proper repair, cannot be enforced against county commissioners, in the absence of any showing that the cost of such repairs would have exceeded fifty dollars.</p>

<p>PRINCIPAL AND AGENT</p> <p>1. Burden on Real Estate Broker Claiming Commission to Show Willingness and Ability of Purchaser to Perform.</p> <p>Recovery of a commission for sale of real estate can not be based on the fact alone that the proposed purchaser signed the contract of purchase, but it must also be made to appear that he was able and willing to complete the purchase and make the payments stipulated in the contract.</p> <p>2. Concealment of Inability of Proposed Purchaser to Pay for Property Bars Recovery of Commission.</p> <p>The claim for a commission is unenforcible when plaintiff concealed from the owner of the property the fact that the proposed purchaser would not be able to take the property until he had sold certain other property the title to which was so clouded as to render a sale extremely improbable.</p>

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

<p>CRIMINAL LAW</p> <p>Application to Take Testimony in Philippines Overruled because of Heavy Expense Involved.</p> <p>In the absence of a satisfactory showing as to the materiality of the testimony desired for use in a criminal case, it is not error to overrule an application for an order to take testimony in a distant country, when the expense to the state if the order were granted would amount to as much as $2,000.</p>

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

<p>SALES</p> <p>Whether Sales on Installment Plan are Condition Sales, Question for Jury.</p> <p>When goods are purchased on the installment plan, the amount remaining due being evidenced by notes secured by chattel mortgage, and the goods are afterward retaken by the vendor, it is error in an action brought by the vendee, for recovery of the amount paid on the theory that the transaction was a conditional sale, to withdraw the case from the jury, when testimony has been offered tending to prove it was understood at the time the sale was made that title to the goods was to remain in the vendor.</p>

<p>JURY — STREET RAILWAY</p> <p>1. Reply by Young Attorney to Casual Question by Juror Retiring not Misconduct.</p> <p>A reply by a young attorney, not connected with the case on trial, to a casual question by a juror as the jury were retiring for deliberation, does not constitute misconduct warranting a reversal of the judgment.</p> <p>2. Refusal to Instruct Jury that if Motorman had Reason to Believe Child Might Come on Tracks, not Erroneous.</p> <p>It is not error to refuse to charge a jury, in an action against a traction company for injury to a child, that if the motorman had reason to believe the child might come upon the track or within the danger zone of the car, then he was bound to exercise more than the ordinary degree of care incumbent upon him,</p> <p>3. Traction Company not Liable for Injury to Child Running into Car.</p> <p>A traction company is not liable for injury to a child eight years of age, who became frightened and in attempting to cross the street ran into a rapidly moving car, colliding with the car just behind the forward vestibule.</p>

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

<p>COURTS — DIVORCE AND ALIMONV</p> <p>Hamilton County Insolvency Court has no Jurisdiction in Divorce.</p> <p>Sec. 1637 G. C. Act. 104 O. L. 179, amending, operated to withdraw from the Hamilton county insolvency court jurisdiction to hear and determine actions for divorce and alimony after Decembex 31, 1914, even though pending at that date.</p>

<p>PROHIBITION</p> <p>1. Writ of Prohibition Resorted to Prevent Unauthorized, Injurious Quasi or Unlawful Judicial Power.</p> <p>The remedy provided by writ of prohibition is for the purpose of restraining the exercise of unlawful judicial power. Resort may be had to this remedy only when there is some officer or person who is about to exercise judicial or quasi judicial power, which is unauthorized, and will result in injury, and against which action no other adequate remedy exists.</p> <p>2. Writ of Prohibition Denied Against Common Pleas Judge About to Exercise Jurisdiction of Appeal from Municipal Court. But inasmuch as the . common pleas court has jurisdiction to entertain an appeal from an order by the municipal court overruling a motion to disolve an attachment, a writ of prohibition does not lie against a judge about to exercise such jurisdiction.</p>

<p>JUDGMENTS — RES ADJUDICATA</p> <p>Relitigation of Question as to When Case Failed Otherwise than on Merits Denied.</p> <p>"When a court of last resort has decided that an action has failed otherwise than on its merits on a certain date, and it is sought by averments in an answer to the action to show that the former action failed otherwise than on its merits on a different date from that found by the court of last resort, the fact as to when the action failed otherwise than on its merits can not be relitigated under the averments of the answer, as that question is res adjudicata, and the averments of the answer which seek to raise that question again, are properly stricken from the pleading on motion.</p>

<p>APPEAL — GUARDIAN AND WARD</p> <p>1. Right of Guardian to Appeal from Order Terminating Guardianship.</p> <p>A guardian has the right of appeal from an order by the probate court terminating the guardianship.</p> <p>2. Appeal Bond not Required of Guardian, Having no Personal interest in Appeal.</p> <p>Such an order does not terminate the guardianship absolutely, until the right of appeal or any other statutory rights have lapsed; and inasmuch as it must be assumed that the guardian has no personal interest in the appeal, it will be regarded as taken in the interest of the trust and an appeal bond can not be required.</p>

<p>INFANTS — NEGLIGENCE</p> <p>Responsibility of Mother for Negligence of Those in Whose Custody Child Had Been Placed.</p> <p>In an action by a mother for damages on account of the death of her four year old child, for which she sues as administratrix, it is error to refuse to give a special charge, requested by the defendant before argument, to the effect that the said mother was responsible for the act of those in whose custody she had placed the child, and if it appear from the evidence that they failed to exercise ordinary care for the safety of the child under the circumstances, damages can not be recovered by the mother for her own benefit; but such an error is not prejudicial when the same principle of law was incorporated in the general charge and the evidence fails to show any negligence on the part of the mother or those in whose custody she had left the child.</p>

<p>INSURANCE</p> <p>Assessments to Reimburse Officers of Mutual Insurance Associations for Losses Advanced Held not Illegal.</p> <p>Where the by-laws of a mutual fire insurance association organized under Secs. 3686-3690 R. S. (Secs. 4680 G. C. et seq., provide that an assessment shall be levied at a certain date each year to pay the losses incurred and incidental expenses, the inclusion in the amount for which assessments are levied of an amount sufficient to reimburse officers of the company for money which they had advanced to pay losses as they occurred, does not make the assessments illegal.</p>

<p>ATTACHMENT AND GARNISHMENT</p> <p>Attachment Lies to Recover Money Paid for Goods in Excess of Amount Furnished.</p> <p>An action to recover money paid to the defendant by reason of the defendant having billed and collected for goods in excess of the amount of goods actually shipped to plaintiff, is an action to collect a debt fraudulently or criminally contracted within the meaning of Sec. 5521 R. S. (Sec. 11819 G-. C.), and is ground for attachment.</p>

<p>CHATTEL MORTGAGES</p> <p>Withholding Chattel Mortgages from Record not per se Fraud upon Creditors.</p> <p>When chattel mortgages, covering all the property and all the accounts and bills receivable of the mortgagor, are taken as temporary security and are withheld from record, not as the result of any agreement nor with fraudulent intent, nor for the purpose of securing credit for the mortgagor from other parties, but to prevent creditors already existing from all pressing demands for payment at once, such mortgage is not a fraud upon present prospective creditors.</p>

<p>CONTRACTS — INSURANCE</p> <p>1. Inspection Bureau Rate of insurance not Admissible to Prove Average Rate in Force on Certain Class of Property.</p> <p>In an action by an insurance agent for damages resulting from the breach of a contract, in which it had been agreed that the agent should furnish the other party to' the contract insurance at a rate not exceeding the average rate paid by other lumber firms of the same city for a like hazardous risk, evidence by the officers of an inspection bureau as to the rate which they placed upon the property upon which the plaintiff had tendered insurance, is not competent to prove that the tendered insurance was at the rate specified in the contract, even though the rates fixed by the bureau were sold to, and used by, a large percentage of the insurance agencies of the community.</p> <p>2. Damages for Breach of Executory Contract is Present Value of the Contract.</p> <p>When a contract between an insurance agent and a property owner provided that the property owner should take all his insurance from the agent and withhold 20 per cent, of the premiums as they became due and apply them as payment upon a certain piece of property which was to be conveyed to the agent at an agreed price, a breach having occurred at the inception of the contract through the refusal of the property owner to take any insurance, the measure of damages is not the value of the property to be conveyed, but the value of the contract to the agent at the date of the breach, in estimating which the jury should consider the probability of the defendants going out of business, and what would have been necessary on the part of plaintiff had he performed his contract.</p>

<p>BONDS — PLEADING</p> <p>1. Conditions of Bond Sued on Discovered by Search of Record at Hearing on Demurrer.</p> <p>While in an action to enforce a bond it is not competent, on demurrer to the petition, to look to the bond attached thereto for the purpose of determining whether liability has arisen thereunder, nevertheless a reviewing court, upon searching the record and ascertaining from a prior pleading the conditions of the bond claimed to have been breached and there set out in haec verba, may adjudge whether the default alleged is within the condition of the bond.</p> <p>2. Liability of Sureties on Bond of Indemnity Against Claim in Litigation Together With Counsel Fees and Other Expenses.</p> <p>When the condition of a bond is that the obligee shall be held blameless on account of a certain claim in litigation, together with counsel fees and other expenses, the indemnity promised covers only the amount the obligee is compelled to pay by legal proceedings, and does not include counsel fees and other expenses incurred in defeating said claim.</p>

<p>GIFTS</p> <p>Gifts in Praesenti are Invalid when not Accompanied by Unconditional Delivery.</p> <p>When at the same time that life insurance policies are assigned and delivered to a person, the assignor executes and delivers to the assignee his promissory note due with interest at a fixed time after date, and at the same time an agreement is executed in which it is recited that the assignor has borrowed from the assignee the amount for which the note is given and assigned to her certain insurance policies as collateral security, which were to be hers absolutely in case the assignor died before the assignee — Held: The three acts constitute one entire transaction of a commercial nature, and that the assignment and delivery of the insurance policies does not amount to a gift in praesenti.</p>

<p>CONTRACTS</p> <p>1. Proof Clear and Convincing Prerequisite to Waiver of Written Contract.</p> <p>In an action for recovery of the balance of the contract price for construction of a grain elevator, under a contract which provided that no claims should be made for extra work unless such work was done in pursuance of a written order from the party for whom the work was being performed, a claim for extras having been asserted, based on a request for such extras and their being furnished under circumstances which evidenced an expectation of payment, it is error to refuse a special charge, requested before argument, to the effect that waiver of the condition of the contract as to extras can only be shown by evidence so clear and convincing as to leave no reasonable doubt with reference thereto.</p> <p>2. Indemnity Clause to Builder of Elevator Construed as Warranty and Compliance with Contract Terms as to Material not Sufficient.</p> <p>The provision in said contract to the effect that the contractors should indemnify and save harmless those for whom the elevator was being constructed from any injury or damage by reason of failure of the elevator or its equipment to be serviceable for the purpose intended, constituted an express warranty, and wlien read in connection witk other provisions of the contract is not open to the construction that, if the material used and work done were in accordance with the plans and specifications agreed upon before the work was undertaken, the contractors would be relieved from responsibility for any failure of the elevator to serve the purpose intended.</p> <p>3. Damages for Failure to Structure within Time Prescribed.</p> <p>It is erroneous, in such a case, to direct the jury to allow no damages for failure fo complete the structure within the time specified, if the defendants by acts, conduct or statements extended the time, without regard to the extent to which plaintiffs were delayed in their work by such acts, conduct or statements.</p>

<p>PLEDGES</p> <p>1. Duty of Pledgee to Obtain Highest Price for Pledged Articles at Private Sale.</p> <p>When the pledgee of personal property sells the pledged articles at private sale, he acts as agent of the pledgor in making the sale, and it is his duty to exhibit the articles in such a manner as to attract buyers and use all other reasonable methods of obtaining as nearly as possible what the articles are reasonably worth.</p> <p>2. Private Sale of Pledge at Price Greatly below Value Imputing Negligence.</p> <p>When the pledgee of personal property sells it at private sale for a sum much less than the actual value of the property, the discrepancy in price may he so great as to establish want of care and neglect of duty on his part and make him liable in damages for the difference between the selling price and the actual value.</p>

<p>CRIMINAL LAW</p> <p>Service on Attorney for Prosecuting Witness Insufficient to Bring State into Court in Error Proceedings in Misdemeanors.</p> <p>In the prosecution of error proceedings in an action hy a wife against her husband for failure to provide for their minor child, service of summons in error upon the attorney representing the wife or waiver of service by him does not give the reviewing court jurisdiction, and the state can be brought into court only by service on or waiver of service by the prosecuting attorney or some one duly authorized by him to act in that behalf.</p>

<p>SHERIFFS</p> <p>Construction of Salary Act with Reference to Sheriff's Profits Arising from Feeding Prisoners.</p> <p>There Is no claim or obligation resting upon a sheriff to account for or pay over to the county or state the amount received by him for keeping and feeding prisoners during his term of office in excess of the actual cost of so doing.</p>

<p>DESCENT AND DISTRIBUTION</p> <p>Personally Received by Wife from Estate of Deceased Husband Descends to Her Heirs Generally.</p> <p>S. died testate without issue, leaving A. W. S. his widow, and certain brothers and sisters and their legal representatives, his only heirs at law. A. W. S. elected not’ to take under the will of S., but took under the law her distributive share of S.’s personal estate, and subsequently died intestate without issue, leaving neither brother nor sister or their legal representatives. Held: That A. W. S. took her distributive share of said personal estate by favor of the provisions of Secs. 10571 and 8592 G. C., and not under any provision of Sec. 8574 G. C., hence, the provisions of Sec. 8577 G. C., are not effective to divert the descent of such personal property from her heirs generally.</p>

<p>CONTRACTS — REAL ACTIONS — TRIAL</p> <p>1. Creditors of Grantor in Favor of Whom Real Estate Contract Runs, Proper Parties on Breach of Contract.</p> <p>When a contract for the sale of real estate runs in favor of persons to whom tbe proposed grantor is indebted, they are proper and necessary parties to an action for damages on account of failure of the defendant to take the property.</p> <p>2. Measure of Damages in Breach of Contract for Sale of Real Estate.</p> <p>The measure of damages in such a case is the difference between the contract price and the market price at the time of the breach, and it is error to admit evidence as to what the property brought when offered at public auction at a later'date and upon different terms.</p> <p>3. Title not Shown by Deed from Immediate Grantor.</p> <p>Perfect title in the plaintiff is not shown by admission in evidence of a deed from the immediate grantor to plaintiff’s creditor with a declaration of trust by the creditor in his favor.</p> <p>4. Tender of Deed not Necessary when Grantee Refuses to Comply.</p> <p>A tender of a deed is unnecessary when the defendant has declared that under no circumstances does he intend to comply with the contract to purchase, and the plaintiff has made evident that he was ready and willing to perform his part of the contract.</p> <p>5. Exclusion of Deed by Grantor to Third Party for Property in Issue, Prejudicial.</p> <p>It is prejudicial to the defendant in such a case to exclude a deed from the plaintiff to a third party for the property in question, which deed was executed prior to the breach but was not recorded for some time thereafter.</p>

<p>LANDLORD AND TENANT</p> <p>1. Parol Testimony as to Modification of Terms of Lease which it is Sought to Transfer not Admissible.</p> <p>The assignment, not yet performed, of a written lease of real property is witbin tbe statute of frauds, and oral evidence of a modification of tbe terms of tbe transfer is inadmissible in an action for rental under tbe lease.</p> <p>2. Tender of an Imperfectly Executed Lease does not Constitute Performance.</p> <p>Tbe assignment of a lease is as necessary to performance of a contract to transfer as is delivery of possession of the property, and performance can not be claimed when an imperfect assignment was the only one proffered.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>1. Municipal Corporations Liable for Negligence of Officers when Acting in Ministerial Capacity.</p> <p>Though municipal corporations are not liable for injuries caused by the negligence of officers while acting in a governmental, legislative or judicial capacity, they are liable to the same extent as private corporations when the Injury is caused by negligence in performing some duty which is purely ministerial.</p> <p>2. Municipality Liable for Negligence in Construction of Building. While the preparation and adoption of plans for a public building are the exercise of governmental and judicial functions, the construction of the building is ministerial, and when it is so negligently done that the building collapses upon the property of another, the municipality is liable in damages.</p>

<p>RAILROADS</p> <p>Statute Fixing Penalty for Requiring Employes to Join Relief Association Held Constitutional. •</p> <p>Sections 9012-13-14, providing that it shall be unlawful for any corporation to compel employes to join an association, or to withhold any part of their wages for payment of dues in such association, and prohibiting the demanding or receiving of waivers from employes of any right to damages in case of personal injury or death during the course of such employment, and declaring agreements of that character void, are not in contravention of either the federal or the state constitution; an action lies to recover a penalty for requiring an employe to dp the things in these statutes forbidden.</p>

<p>WILLS</p> <p>Devise Directing Trustees to Convey Estate to Legal Heirs at Death of Cestui qui Trust does not Vest any Estate Until Her Decease.</p> <p>A devise to trustees, with directions to pay the rents and profits to A during her natural life and at her death to convey the property to her legal heirs in fee simple, does not vest any estate in the children of A during her lifetime and the “legal heirs” of A are determined at the date of her decease.</p>

<p>BILLS AND NOTES — CRIMINAL LAW</p> <p>1. Prosecution to Collect Debt Amounts to Duress.</p> <p>When a criminal prosecution is for the purpose of collecting a debt, it is commenced for an illegal and unlawful purpose; hence, although there may be a good cause for prosecution, and although the form of proceeding and the writ be perfect and without fault, yet the law will regard such a prosecution as duress and any security obtained through it may be avoided.</p> <p>2. Arrest of Brother Duress to Sister Executing Notes.</p> <p>The arrest of a brother may amount to duress when a sister executes notes and mortgages to secure the debt of the brother and save him from criminal prosecution.</p> <p>3. Duress as Defense against Bona Fide Purchaser of Notes.</p> <p>When notes and a mortgage are obtained by duress and transferred to a bona fide purchaser for value before maturity, duress being a species of fraud, may nevertheless be set up as a defense to the mortgage.</p> <p>4. Note Given to Prevent Criminal Prosecution not Bar to Defense of Duress.</p> <p>When one gives a note or mortgage under duress, even though it be for the purpose of preventing a criminal prosecution, that fact does not prevent the giver of the note or mortgage from defending an action brought upon it upon the ground of duress.</p> <p>5. Payee .of Note Obtained by Duress Becomes on Negotiation Principal Debtor and Maker, Surety.</p> <p>When one who has obtained a note and mortgage by means of duress, transfers them to an innocent purchaser for value and before maturity, he thereby becomes the principal debtor and the maker becomes the surety.</p>

<p>OFFICERS</p> <p>1. Appointing Officer Cannot under Civil Service Promote One not Certified.</p> <p>When an officer is required by law to appoint and promote city employes from a list of those who have attained a certain grade in competitive civil service examinations, he can not, in the exercise of his discretion, promote one who has failed to attain the prescribed grade, even though it be by the fraction of one per cent, and there are special reasons why he believed that one will be more efficient in the position to which he desires to promote him.</p> <p>2. Courts will not Interfere with Civil Service Examinations.</p> <p>While rules governing the conduct of civil service examinations, as established by the city council and the examiners, should enumerate the subjects.upon which applicants are to be examined, yet a failure so to do will not be ground for interference on the part of the courts when it appears that the examinations, as conducted, were upon the subjects upon which it would be necessary for the appointees to have knowledge.</p>

<p>GUARDIAN AND WARD</p> <p>When Action may be Brought for Error in Final Account.</p> <p>When a guardian is appointed to administer a fund in which two minor wards have an equal interest, and in the final account of such guardian it appears that one of the wards has been paid her half of the fund in full while all the costs of the guardianship were deducted from the share of the other ward, such manifest error and mistake as to the second ward is shown as to give him the right to bring an action under favor of Sec. 6289 R. S. (Sec. 10954 G. C.)</p>

<p>CONTEMPT OF COURT — HABEAS CORPUS</p> <p>Proceedings in Contempt can not be Reviewed by Habeas Corpus.</p> <p>Inasmuch as the superior court of Cincinnati had jurisdiction to try the case in which the petitioner herein was committed for contempt, its proceedings can not be reviewed by habeas corpus however irregular or erroneous they may have been.</p>

<p>NUISANCE — STREET RAILWAYS</p> <p>Electric Railway no Right to Destroy Fence Projecting over Street Line Abutting Right of Way.</p> <p>One who suffers no peculiar injury from the existence of a public nuisance, such as a fence in a public highway, has no right to abate the nuisance, when it does not interfere with public travel in the highway, and this applies to an electric railway throwing down fences projecting over the street line abutting its right of way.</p>

<p>STREET RAILWAYS</p> <p>One Injured by Driving in Dangerous Place on Highway beside Street Car Track at Curve is Guilty of Negligence.</p> <p>When approaching a sharp curve in the highway, one from choice and not from necessity, drives so close to a street car track that his wagon is struck by a car coming round the curve before he can turn out, his injury is the result of his own negligence.</p>

<p>APPEALS</p> <p>When Appeal by One Party Operates as an Appeal as to All.</p> <p>When an appeal is perfected by several parties claiming funds in the hands of two joint defendants, and by one of the joint defendants, such appeal takes the case up in so far as any decree rendered against the other defendant in the lower court is concerned.</p>

<p>MASTER AND SERVANT</p> <p>Liability for Injuries Sustained by Volunteer.</p> <p>One who calls for and procures the gratuitous assistance of a volunteer does not owe him the duty of exercising ordinary care in the furnishing of proper tools or a safe place to work; but when the volunteer is serving a purpose of his own or of his master in complying with the request for help, he is entitled to the exercise of ordinary care on the part of the one calling him or his servants.</p>

<p>FORGERY</p> <p>1. Failure to Produce Forged Instrument.</p> <p>In a prosecution for forgery, in which a denial has been entered, the defendant is entitled to have the alleged forged instrument produced or its nonproduction satisfactorily accounted for before secondary evidence as to its contents is admissible, and a mere statement by the prosecuting attorney to the effect that he did not have nor had he seen the instrument to which the indictment refers, either before or since the sitting of the grand jury which returned the indictment is not a sufficient explanation of the reason for its nonproduction at the trial.</p> <p>'2. Confession not Amounting to Admission of Forgery by Accused, Insufficient.</p> <p>Statements made by the defendant in the nature of a confession are insufficient upon which to base a conviction of forgery, when it does not appear that the so-called confession was an admission of the forgery by the defendant to the particular instrument upon which the indictment is based.</p>

<p>BONDS — INJUNCTION</p> <p>Issue of Bonds for Insane Hospital Approved by Electorate not Enjoin-able.</p> <p>Injunction does not lie against an issue of bonds, put forth by county commissioners for improvements in an insane asylum owned by tbe county, when the issue has been approved by the people and the proceeds are disbursed in accordance with the statutory provisions.</p>

<p>INJUNCTIONS — MUNICIPAL CORPORATIONS</p> <p>Vacation of Street to Beautify Lawn of Municipal Hospital, Enjoined.</p> <p>The benefit which would result to the lawn and grounds of a municipal hospital by enclosing therein a part of a public street does not afford a sufficient reason for vacation of the street and consequent injury to the public, and such use of the street will be enjoined upon the petition of a taxpayer.</p>

<p>PLEADING — TRIAL</p> <p>1. Successive Breaches of Contract do not Require Separate causes of Action.</p> <p>Several breaches of a contract do not constitute separate causes of action, and in a suit for damages growing out of the breach it is not good practice to split up the claim into a number of causes.</p> <p>2. Order Arresting Cause from Jury on Wrong Grounds Immaterial when Other Grounds Warrant Such Action.</p> <p>The fact that a trial court in arresting a cause from the jury based its action on wrong grounds is immaterial when other grounds existed which warranted such action.</p>

<p>CORPORATIONS — CRIMINAL LAW — WORK AND LABOR</p> <p>1. Jurisdiction of Magistrate Obtained through Submission of President of Corporation to Arrest.</p> <p>The provision of Sec. 13496 G. C. for the arrest of an accused person is not applicable to a corporation, but when in a prosecution of a corporation the president is arrested and taken before a justice of tbe peace, failure to take advantage of tbe irregularity by objecting to tbe jurisdiction of tbe court amounts to submission to its jurisdiction and a general appearance and. prevents further question as to jurisdiction over the defendant corporation on the ground of improper service.</p> <p>2. Candy Corporation not within Exception of “Perishable Goods” under Statute Prohibiting Employment of Females More than Ten Hours in One Day.</p> <p>The exception found in the statute prohibiting the employment of females over eighteen years of age more than ten hours in one day, made applicable to “canneries or establishments engaged in preparing for use perishable goods,” does not apply to candy factories.</p>

<p>DESCENT AND DISTRIBUTION</p> <p>Devise by Widow does not Pass Title to Lands Inherited by Former Husband Intestate.</p> <p>That portion of lands inherited during life by a deceased husband continues to be ancestral add title thereto passes to his heirs, notwithstanding his widow relict devises same with other lands obtained by her former husband by purchase from coheirs to her second husband and his heirs.</p>

<p>AUTOMOBILES</p> <p>Father of Daughter in Charge of Automobile which Collided with Another Automobile cannot Escape Liability on Ground that Escort . was Driving.</p> <p>A young lady accompanied by her escort, both of whom were minors, rode to the next county seat in an automobile belonging to the girl’s father. For a time the car was run by her, but during the journey its operation was surrendered by her to the young man. As they approached their destination their machine collided with another automobile, causing injury to the plaintiff below. The mechanism of the car was such that either of its occupants could have stopped it ‘without changing position, had ordinary care been exercised. The jury found in favor of the young man and assessed damages against the young lady. Held: That while it would have been competent for the jury to have found the couple were engaged in a joint enterprise, yet the theory that, at the time of the accident, the young man was operating the car as the agent of his companion is tenable, and the rule that all reasonable presumptions should be indulged in favor of the validity of the judgment requires that it be affirmed.</p>

<p>WILLS</p> <p>Estate Devised Vests in Remaindermen Subject to Divestment by Alternative Clause.</p> <p>A devise of a life estate to testator’s daughter, to vest at her death in the lawful issue of her body and in the failure of such issue to descend to certain grandsons or survivor of them vests the remainder in such grandsons subject to divestment by the daughter’s leaving issue, or the condition of survivorship existing among the grandsons at the death of the life tenant. Since the life tenant never married the grandsons were never divested of their estate therein notwithstanding they all died before the life tenant.</p>

<p>NEGLIGENCE</p> <p>1. Doctrine of Last Chance not Applicable when Contributory Negligence First Intervenes.</p> <p>The humanitarian doctrine of last chance is not applicable in a case in which contributory negligence had first intervened, when the undisputed testimony tends strongly to show that the rescue of the decedent from his position of peril would have been physically impossible within the time and under the circumstances presented at the moment his position of danger was discovered.</p> <p>2. Expert Testimony that Quick, Active Man Might have Effected Rescue of Decedent does not Render Last Chance Doctrine Applicable.</p> <p>Nor would the rule embodied in said doctrine be rendered applicable by adopting the view of an expert, called on behalf of the plaintiff, that a quick and active man might have effected a rescue, when the work was nót of a character requiring a man of that type, and had such a man been on the job he could only have effected a rescue by determining what to do and going through several motions within the space of two seconds and at the risk of his own life or serious injury.</p>

<p>COURTS — MUNICIPAL CORPORATIONS</p> <p>Appointment of Clerk of Municipal Court, Created by Charter and Legislative Act.</p> <p>When a city charter, supplemented by an act of the general assembly, creates and constitutes a municipal court, such court is not a constitutional but rather a statutory court, and authority to appoint its clerk is vested in such appointing officer or board as is prescribed by the city charter, and not in the appointing officer or board prescribed by the supplementary statute.</p>

<p>CONTEMPT — ERROR</p> <p>Review in Contempt Proceedings Implied in Finding “Guilty.”</p> <p>Direct statutory provision for review of contempt proceedings when the party has been found guilty affords ground by analogy for prosecution of error in cases where there has been a refusal to punish for contempt.</p>

<p>MANDAMUS — TAXES</p> <p>1. Payments Due from Official Boards Enfofcible by Mandamus.</p> <p>Mandamus is the proper form of action to compel payment of an amount due from a public board or officers under a contract which fixes the amount to be paid.</p> <p>2. Mandamus Lies to Compel Payment of Tax Inquisitor.</p> <p>In the case of a contract executed by county commissioners with a tax inquisitor, providing for payment of a certain percentage of taxes collected on omitted property, mandamus lies to compel the county auditor to issue his warrant in payment thereof.</p> <p>3. County Comimissioners not Parties to Mandamus to Compel Payment of Tax Inquisitor.</p> <p>In such a case, allowance having been made in the contract for whatever claims might arise thereunder, the members of the board of county commissioners are not necessary parties.</p>

<p>PUBLICATION — WORDS AND PHRASES</p> <p>Newspapers of “Opposite Politics” Determined by Record in Presidential Campaign of Previous Year.</p> <p>Whether two newspapers are of “opposite politics,” within the meaning of the statute relating to municipal advertising, will be determined by their conduct and policy at a time when partisanship has sway and party organization and discipline finds expression in party platforms and declarations, rather than during a period when party feeling is quiescent and there is little or no political activity; hence, when a municipality enters into a contract for such advertising during the year following a presidential campaign, the question whether the two papers chosen are opposite or antagonistic in politics will be judged by their record during the campaign of the preceding year.</p>

<p>FRANCHISES</p> <p>1. Gas Franchise Expired Imposes no Obligation to Supply Village.</p> <p>A franchise, whereunder a gas company furnished gas to a village and its inhabitants for a specified number of years, becomes at the expiration of the term named an indeterminate franchise, under which the company is not bound to continue to supply gas, but if it elects so to do the rate charged must be the same as during the period in which the franchise was in force.</p> <p>2. Adoption of Subsequent Ordinance Granting Renewal of Franchise but on Different Terms not Repeal of Former Ordinance.</p> <p>The adoption By the village of a second or third ordinance, granting a renewal of the first ordinance but on different terms, does not repeal the first ordinance by implication and does not become binding upon the company until accepted by it.</p> <p>3. Injunction does not Lie to Compel Gas Company to Continue Service under Unaccepted Franchise.</p> <p>It follows that where the gas company has not accepted the terms provided in the second franchise, it is at liberty to terminate its connection with the village at any time it sees fit to remove its property therefrom, and an action does not lie to enjoin the discontinuance or an impairment of the service.</p>

<p>JUDGMENTS — PLEADING—PRINCIPAL AND SURETY</p> <p>1. Effect of General Demurrer when One Cause of Action well Pleaded.</p> <p>■ It is a fundamental rule of pleading that a general demurrer to any pleading, containing two or more causes of action or defenses, may not be sustained if any one cause of action or defense therein is well pleaded.</p> <p>2. Surety Entitled to Jury Determination of Representations Affecting His Liability on Contract.</p> <p>A surety has the right to have determined primarily by a jury whether representations upon which he claims to have relied to his injury were sufficient to justify an avoidance of the contract of suretyship.</p> <p>3. Modifications in Contract Affecting Surety’s Liability Question for Jury.</p> <p>Provisions which permit of alterations or modifications of a contract, for the purpose of taking care of conditions and situations arising during the course of the work and which could not be anticipated at the time of making the original agreement, are such modifications as do not increase the liability of the surety. Whether other modifications have resulted in increasing the liability of the surety is a question which he is entitled to have determined by a jury, and if found to be material and to have substantially increased such liability, they are fatal to the right of the obligee to recover on the bond.</p> <p>4. Surety not Concluded by Former Judgment were thought Erroneously Dismissed from Action.</p> <p>The conclusiveness of a judgment against a contractor and his surety can not be maintained as to the surety, when it was rendered in an action from which the surety had been dismissed, and therefore at the time the judgment was rendered was not a party nor in privity with anyone who was a party; and this is true notwithstanding the order dismissing the surety was probably erroneously entered.</p>

<p>APPEAL</p> <p>1. Petition for Modification of Decree to Adhere to Gas Rates not Appealable.</p> <p>A petition for modification for a decree and finding by the court of appeals, provision for a modification should it be shown to _be necessary being found in the decree, is not an original and independent action, but rather an additional proceeding in the original action, and is not appealable.</p> <p>2. If Treated as Original Action not Appealable Being Action for Money Only.</p> <p>Moreover, if such a proceeding were to be treated as an original and independent action, then it would in the case at bar become an action for money and not a chancery case, and would not be appealable for that reason.</p>

<p>MASTER AND SERVANT</p> <p>Fact of Protection of Emery Wheel is for Jury in Personal Injury Case.</p> <p>When the issue of proximate cause is made an issue by the pleadings, the trial court without any facts cannot determine the issue. Hence, in an action for recovery of damages on account of injury to a workman from the bursting of an emery wheel which he was operating, the question whether an accident of that character can be attributed to the failure of the employer to comply with the statute requiring that such wheels be covered with a sheet or cast iron hood or hopper to prevent dust or refuse from rising therefrom, is one which should be determined by the jury from the facts and circumstances of the case, rather than from any narrow construction by the court of the purpose of the law, and the plaintiff in such a case should be given an opportunity to prove that the cause of his injury was the absence of such an appliance.</p>

<p>SALES</p> <p>Representations by Seller as to Soundness of Horse Sold Constituting Express Warranty under Sales Act.</p> <p>Assurances given the purchaser by one selling a horse, that the animal was sound in every way and especially was free from any disease of the eyes and that both of the eyes of said horse were sound, are sufficient to constitute an express warranty under the sales act.</p>

<p>GUARDIAN AND WARD — LIMITATIONS</p> <p>1. Citation against Sureties; Lies on Application of Wards Without Determination of Amount of Guardian's Default.</p> <p>When a guardian has failed for a long period to file an account showing the condition of his trust, and his wards are without knowledge as to the amount of money which has passed through his hands, and a summons issued for him at their instance on a citation to file an account is returned “not found,” application lies by the wards to the probate court for a citation against the sureties on the bond of the guardian as a preliminary step to enforce an accounting as to the amount of his default.</p> <p>2. Running of Ten Years Limitations on Bonds of Guardians.</p> <p>The ten years statute of limitations on the bringing of suits on the bonds of guardians does not begin to run until the right of action accrues — that is from the filing of the final account, or an ascertainment as to the amount unaccounted for by the guardian.</p>

<p>CRIMINAL LAW — INTOXICATING LIQUORS</p> <p>1. Improper Statements by Magistrate, not in Trial not Prejudicial to Accused Convicted on Evidence.</p> <p>Improper statements made by a mayor, not in trial, however, regarding the course he would pursue with persons brought before him charged with certain offenses will not be regarded as prejudicial in a case when on the undisputed evidence it was the duty of the mayor to convict.</p> <p>2. Accused Prosecuted for Keeping Place for Unlawful Sale of Intoxicating Liquors not Entitled to Jury Trial.</p> <p>In a prosecution under Sec. 13195, the defendant is not entitled to a trial by jury. Imoood v. State, 42 Ohio St. 186, followed.</p> <p>3. Keeping Place for Unlawful Sale of Intoxicating Liquors after Constitution Declaration of May 29, 1919, Punishable.</p> <p>Article 15, Sec. 9, Constitution of Ohio in effect May 26, 1919, forbids the sale of intoxicating liquors as a beverage. The sale of such liquors after that date was in violation of law, without regard to the fact whether the general assembly had enacted legislation to enforce such provisions with penalties or not. It is not the penalty which makes the sale unlawful, but the fact that it is prohibited. Hence, keeping a place where intoxicating liquors were sold as a beverage after May 29, 1919, is punishable under the provisions of Sec. 13195 G. C.</p>

<p>GUARDIAN AND WARD-WILLS</p> <p>1. Ward of Co-executor of Grandmother’s Estate not Estopped to Contest Will.</p> <p>A granddaughter, upon attaining her majority, is not estopped from contesting the will of her grandmother by the fact that while she was a child of tender years the executors, one of whom was her guardian, distributed the available assets of the estate without filing an inventory or obtaining an order of distribution or filing any report thereof.</p> <p>2. Testimony of One Who Talked with Testatrix about Her Will not Admissible.</p> <p>It is not error in a will contest to exclude the testimony of one who was called in by the testatrix to advise her as to whether the will as drawn properly expressed her wishes as to the distribution of her estate.</p>

<p>SCHOOLS</p> <p>Board Held Liable for Injury to Pupil by School Dentist.</p> <p>A board of education is liable for injury from the wrongful act of a servant in the performance of a purely ministerial act, when the wrongful act was the proximate cause of the injury and without fault on the part of the injured person. Fowler v. Cleveland, 100 Ohio St. 158, followed.</p>

<p>DEEDS — EMBLEMENTS—LANDLORD AND TENANT</p> <p>1. Share of Crops Going to Landlord is Rent.</p> <p>When real estate is leased for a consideration consisting of a part of the crops raised thereon, the owner’s share of such crops is rent for said land and such crops are also the issues of the land for the year in which they are raised and harvested.</p> <p>2. Deed Conveying All Issues and Profits Covers Owner’s Share of the Crop. '</p> <p>A deed which conveys certain lands described therein “together with all the privileges and appurtenances to the same belonging and all the rents, issues, and profits thereof” passes to the grantee all the grantor’s rights and interests in and to all crops then growing on said lands. Evidence of a parol reservation by the grantor of his interest in such crops when the deed was executed is not competent to modify or contradict the express terms of the grant aforesaid.</p>

<p>WILLS</p> <p>1. Scrivener, Executor, Cross-Examined in Will Contest.</p> <p>In an action to contest a will the scrivener may be called for cross-examination, where he is the executor under the will and is made hy the issues raised to appear as an adverse party.</p> <p>2. Will on Different Sizes and Grades of Paper Presumed in Accordance with Instructions.</p> <p>The presumption that the will was drawn in accordance with instructions given hy the testator is sufficient to overcome the objection that it is written on pieces of paper of different sizes and grade, where the explanation offered for so doing indicates it was done innocently and not for any fraudulent purpose.</p> <p>3. Declarations of Testator Before and after Execution not Admissible on Issue of Forgery.</p> <p>While testimony as to declarations made by the testator before and after execution of the will may be competent on the question of testamentary capacity, such is not the case on an issue of forgery, and the admission of such testimony in a case where that issue has been raised is not cured by the giving of a special charge to the effect that, if the jury find the will was executed on the date specified, it would not matter what the testator may have said on other occasions as to his intention and all such declarations with respect thereto should be disregarded, if the objectionable testimony was not withdrawn from the jury in a manner which could not have been misunderstood by them and no direction was given them not to consider it except as implied in said charge.</p> <p>4. Failure to Instruct Prima Facie Effect of Probate, Error.</p> <p>Failure of the trial court in its charge to the jury to distinctly state and emphasize the effect of the order probating the will, or the statutory provision makes such probate prim a facie evidence of its attestation, execution or validity, constitutes prejudicial error.</p> <p>5. Failure to Define Prima Facie Evidence, Held Error.</p> <p>It is also prejudicial error to refuse to charge that prima facie evidence of a fact is, as a matter of law, such evidence as in the judgment of the law is sufficient to establish the fact and if not rebutted remains sufficient for that purpose.</p> <p>6. Specific Instructions as to Testamentary Capacity, Fraud, Undue Influence Required in Will Contest.</p> <p>It is the duty of the trial court to specifically instruct the jury on the legal questions raised by the evidence, and in the contest of a will this requirement has particular reference to the definitions of testamentary capacity, fraud, undue influence, and the legal presumption arising from the absence of proof tending to sustain either, or the effect of fraud or undue influence practiced at the time of the making of the will.</p> <p>7. Preponderance Sufficient to Sustain Fraud in Will Contest.</p> <p>While the rule requires in many cases that fraud be proved by clear and convincing testimony, a preponderance of the testimony is sufficient to sustain such an allegation in an action to set aside a will.</p> <p>8. Jury’s Experience in Life Not Guide in Will Contest.</p> <p>The instruction that the jury may be guided by their own experience in life, while proper in certain classes of cases, is out of place in a will contest where issues as to testamentary capacity, undue influence and fraud can be determined only by the sworn testimony of the witnesses offered.</p> <p>9. Will Probated Differing from Previous Wilis of Testator not Basis for Support of Allegation of Undue Influence or Fraud.</p> <p>The fact that the will which was admitted to probate differs in some respects from previous wills executed by the same decedent, affords no basis for an allegation of undue influence or forgery in its execution, where reasons appear for the changes which were made, and the same executor was named in all of the wills and he a man in whom the decedent had long reposed confidence in business affairs, and nothing is offered to impeach the integrity of the testamentary act and there is nothing but naked suspicion to overthrow it.</p>

<p>COURTS — EXECUTORS AND ADMINISTRATORS,</p> <p>Judgment of Probate Court Determining Title to Property of Estate Concealed Title Res Judicata.</p> <p>Sections 10673 G. C. et seq., concerning concealing of property of estate by personal representatives, provide for trial of the right of property by the probate court, and proceedings before that court pursuant thereto may be pleaded in bar of an action in another court to try the title to or the right of possession of the property involved in said proceedings.</p>

<p>APPEAL — DRAINS AND DITCHES</p> <p>1. Property Owners Encouraging Ditch Improvement Denied Relief when Results Prove Disappointing.</p> <p>In the absence of fraud or collusion no relief will be granted from an assessment for a ditch improvement, where the complaining property owners, by their action as well as by silence and acquiescence, induced the county commissioners to tile a ditch in the belief that it would be a benefit to them all, but which on actual test was found to have made the situation worse rather than better.</p> <p>2. Lack of Benefits not Ground for Judicial Modification Assessment.</p> <p>The authority vested in the court by Sec. 6500 G. C., to grant an order which will make such an assessment equitable where benefits are not shown, does not afford ground for relief from an assessment for an improvement which the community procured to be made on the theory that it would not have to be paid for by them unless it proved beneficial.</p>

<p>MECHANICS’ LIENS</p> <p>1. Mechanic’s Lien Holders Protected When Failure to Follow Strict Letter of Law Due to Deception Practiced by the Owner.</p> <p>The validity of a mechanic's lien is not affected by failure of the contractor or material-man to follow the strict letter of the statute in the matter of furnishing to the owner or his agent a sworn and itemized statement as required by Sec. 1283 G. C., when such failure was due to deception practiced by the owner. In such a case the sending of a copy of the lien placed on record, addressed to the name used by the owner in making the contract, is a sufficient compliance with the statute and the lien so perfected will be held good.</p> <p>2. Mechanic’s Lien for Heating Apparatus Dates from Completion of Work not when Body of Work Done.</p> <p>Where heating apparatus was placed in a building and nearly all of the labor performed in June, but the registers were not installed or connections made until November, the filing of a mechanic’s lien within sixty days of completion of the work was within the time prescribed by the statute.</p> <p>3. Lien of Plumber Constructing Part of Work Filed after Expiration of Year and Completion by Another Plumber Void.</p> <p>But where a plumber does a part of the work on a building and a year later files a lien, the work in the meantime having been completed by another plumber at the instance of the owner, the lien is not filed within time and is void.</p> <p>4. Lien of Painter Leaving Work Unfinished Filing Lien after Sixty Days of Completion of Job Void.</p> <p>The lien of a painter, who left the job unfinished and filed a lien more than sixty days after the furnishing of the last material and labor, is also void for failure to file within the prescribed time.</p>

<p>DIVORCE AND ALIMONY</p> <p>Competency of Evidence as to Mutual Agreement for Payment of Alimony.</p> <p>At the hearing of a motion to terminate an allowance of alimony, it is error to refuse to permit the introduction of evidence tending to show that the allowance named in the decree was fixed by agreement and that said agreement was brought to the knowledge of the court at the time the decree was granted.</p>

<p>ERROR — INFANTS</p> <p>Minor May Prosecute Error Proceedings after Reaching Majority.</p> <p>When a petition in error alleges that the plaintiff in error has become of full age since the rendition of judgment in a certain proceeding in which his name appeared as plaintiff but in which he was not legally represented or his rights properly protected by the appointment of a guardian ad litem, it is error to grant a motion to dismiss the error proceeding on the ground that the court is without jurisdiction.</p>

<p>CIVIL RIGHTS</p> <p>1. Right of Negro on Repayment of Price of Meal Purchased, to Leave Restaurant without Waiving Right of Action for Civil Rights.</p> <p>3. Discriminating against Negro Patron because People Kick against Negros’ Patronizing Restaurant.</p> <p>A negro having been served with a meal at a public restaurant for which payment has been accepted, on request an employe thereof to withdraw to a place by himself in a room of inferior accommodation and separate from white patrons, may accept repayment of his money and leave the premises without waiving his cause of action provided by Secs. 12940 and 12941 G. C., and this notwithstanding by not remaining he was unable to ascertain what would have been the result if he had refused to comply with such request.</p> <p>2. Back Room of Restaurant Used for Dishwashing not Place of Equal Accommodation.</p> <p>A back room of a public restaurant used for washing dishes and storing ice, in which some dining room chairs have been placed, is not of equal accommodation in all respects to the regular dining room where there are chairs and tables and no dishes are washed or ice stored.</p> <p>Since the reason assigned for requesting a negro patron to eat his meal in the back room was that “the people have been putting up so much kick against it that we are losing a great deal of business,” the jury is justified under the circumstances in concluding that the discrimination was based on race or color.</p>

<p>SALES — WARRANTY</p> <p>Refusal to Admit Evidence Tending to Establish Express Warranty Held Erroneous.</p> <p>When plaintiff has declared upon a written contract for certain equipment sold to defendant at a specified price, and defendant hy way of counterclaim sets forth certain representations in the nature of guaranties or warranties as to the economy which would he effected hy the use of said equipment, which representations were not realized but on the contrary the new equipment proved to be more expensive to operate than the old, Sec. 8392 G-. C. relating to express warranty applies and it is error to limit the introduction of evidence tending to prove an implied as distinguished from an express warranty.</p>

<p>NEGLIGENCE — PLEADING</p> <p>1, Alleging Specific Facts Constituting Prima Facie Negligence without Stating Negligence in Terms Sufficient against Demurrer.</p> <p>Demurrer to a petition, which alleges specific facts constituting a prima facie cause of negligence, does not lie on the ground that the negligence is not alleged in terms.</p> <p>2. Alleging Obstruction in Street Causing Injury to Automobile Sufficient against Demurrer.</p> <p>A petition, alleging in effect that an iron standard, four feet in height, weighing fifty pounds and of the kind sometimes placed near the outer rail of a street car line for the purpose of regulating traffic, was left on a very dark night in a street near an intersection and while plaintiff was driving his automobile slowly along said street he ran into said obstruction and damaged his car for which he asks judgment against the municipality, states a cause of action and the petition is not open to demurrer.</p>

<p>ALIENS — CONSTITUTIONAL - LAW — MUNICIPAL COBPORATIONS</p> <p>1- Ordinance Prohibiting Granting to Aliens Licenses to Operate Billiard and Pool Tables not Unconstitutional.</p> <p>A municipal ordinance, prohibiting the granting to one who is not a citizen of the United States of a license to operate a billiard or pool table for hire, is not violative of rights conferred by the fourteenth amendment to the federal constitution, but is within the discretion of the municipal authorities.</p> <p>2. Police Ordinances to Regulate Morals.</p> <p>Municipal authorities may exercise a degree of discretion in the enactment of laws regulating, under the police power, the operation of such lines of business as affect the morals of the community.</p>

<p>DEATH — SURVIVORSHIP</p> <p>1. Evidence, Meager or Conflicting, not Presumption Determines Survivorship in Common Disaster at Sea.</p> <p>When in an action involving a determination as to which died first of two persons who perished in a common disaster at sea, the issue must rest on the evidence unaided by any presumption, and if the evidence fails to establish a probability of survivorship, the party having the burden fails. Conflicting evidence necessitates a higher degree of proof than meagerness of evidence, but such as it is the evidence must give rise to something more than mere conjecture and rise to a degree of probability which will enable a fair minded man to come to a conclusion.</p> <p>2. Son, Having Been Seen on Upper Deck After Cabin Containing Mother Was Flooded, Deemed Outliving Mother.</p> <p>When the question as to which outlived the other lies between a mother and her son, and the evidence is to the effect that the mother was last seen in her state room of the sinking ship, and a few moments later the son was seen on the upper deck after the part of the vessel in which the mothers room was’ located had sunk beneath the water, and there is no further testimony and no conflict, a court will conclude that the son outlived the mother and took under her will.</p>

<p>NEGLIGENCE</p> <p>1. Doctrine of Last Chance Not Available to Reward Rash or Wanton Negligence.</p> <p>While the “doctrine of last chance” affords a right of action in damages to an injured person whose negligence was not heedless or wilful, if the defendant after discovering, or by the exercise of ordinary care could have discovered, the danger of • the person primarily negligent and fails to use proper care to avert accident, yet the rule is not intended to place a premium upon a person’s own wanton or rash act or to cast responsibility upon another therefor.</p> <p>2. Doctrine of Last Chance Not Applicable to Action for Wrongful Death of Deceased Negligently Crossing Tracks before Rapidly Moving Car.</p> <p>The doctrine of last chance does not apply in an action for damages for death by wrongful act of a woman who, while hastily and heedlessly crossing the track of a traction company on its own private right of way at a signal stop, having a full and unobstructed view of the track each way and while it was still daylight, is killed by a rapidly approaching car on which she was attempting to become a passenger, especially since it appears from the evidence that the motorman, standing in his position and keeping a proper lookout, first saw deceased coming on the right of way when the car was not more than 250 feet from the crossing, that he then blew the whistle, shut off the power and reversed the motor.</p> <p>[Syllabus approved by the court.]</p>

<p>ASSESSMENTS — INJUNCTION</p> <p>Injunction Against Collection of Assessments for Public Improvement Denied After Acceptance by Proper Authorities.</p> <p>When an officer or board, designated in a municipal contract as the one to determine whether the terms thereof have been complied with and the work done in an acceptable manner, has reported that the work has been completed in a satisfactory manner and it is accepted and the final estimate paid, an action cannot be thereafter maintained, in the absence of fraud or mistake, by an abutting owner to enjoin collection of assessments remaining unpaid and thereby save such owner and others from further payments toward an improvement which has been declared to be good and substantial.</p>

<p>Appeal from insolvency court.</p>

<p>DEATH — NEGLIGENCE</p> <p>Traction Company Liable for Death of a Woman Passenger in Automobile if Negligence of Traction Company and Driver Combined Caused Accident.</p> <p>A traction company is liable for the wrongful death of a woman, who was a passenger riding on the rear seat of an automobile and not engaged in a joint enterprise with the driver, and who was struck and killed in a collision with a traction company’s car, if the negligence of the motorman, combined with that of such driver, caused the accident; hence, if on trial, the charge of contributory negligence being withdrawn, it is reversible error to instruct the jury to determine whether the death was caused by the negligence of the driver or the motorman.</p> <p>[Syllabus approved by the court.]</p>

<p>STREET RAILWAYS</p> <p>1. Street Car Passenger Not Required to Scrutinize Transfer.</p> <p>While a passenger on a street car should exercise ordinary care and prudence in receiving and making use of a transfer, he is not required to scrutinize it for the purpose of ascertaining whether or not the conductor has punched it correctly, particularly where the transfer itself contains no directions as to the proper method of punching.</p> <p>2. Facts Applied.</p> <p>In an action for damages against a street railway company for ejecting a passenger from one of its cars because the transfer which he tendered was improperly punched, it is error, after giving a special charge at the request of the plaintiff which correctly stated the law with reference to the care required of a passenger in asking for and accepting a transfer, to destroy the force and effect of the instruction so given by a special charge given at the request of the defendant to the effect that in receiving, examining and using a transfer the passenger is bound to exercise such degree of care as ordinarily prudent persons are accustomed to exercise with regard to such a matter under similar circumstances, or in leaving to the jury to determine whether or not plaintiff used due care with reference to the proper marking of the transfer given him.</p>

<p>DESCENT AND DISTRIBUTION</p> <p>Determination of Rights of Relict of Devisee Whose Death Preceded that of Life Tenant.</p> <p>Lands were devised to three brothers, subject to the life estate of their mother. Prior to the death of the mother one of the brothers died intestate and without issue. The life estate having been terminated by the death of the mother, the present action in partition was brought, and an issue raised as to the rights of the widow of the deceased brother. Held: That a fee simple vested in the three sons at the death of the testator, subject to the life estate of their mother. A one-third interest in said lands descended, therefore, to the deceased son as ancestral property, out of which his widow took a life estate, and is entitled to an accounting for rents and profits from the date of the death of the previous life tenant. If the interest of the said widow can be set off by metes and bounds without depreciating the value of the remainder of the land, she is entitled to partition; but no sale of said land can be made without the consent of all parties in interest.</p>

<p>Error to Cleveland municipal court.</p>

<p>MANDAMUS — PUBLICATION</p> <p>Mandamus to Compel Mayor to Sign Contract Improperly Advertised, Denied.</p> <p>Mandamus does not lie to compel the mayor of a village to sign a contract which has been entered into by council for a public improvement, when the advertisement calling for bids for the proposed work appeared on the 7th and 11th and was opened on the 15th of the month.</p>

<p>Appeal and Error.</p>

<p>BROKERS — SALES</p> <p>Broker not Required to Repay Purchase Price of Dried Apples.</p> <p>A broker, selling dried apples by sample with opportunity of inspection by the buyer on delivery, is not required to repay the purchase price to the buyer, because the goods, five days after acceptance, were condemned by a federal inspector as unfit for food.</p>

<p>Error to the municipal court.</p>

<p>DESCENT AND DISTRIBUTION</p> <p>Personal Property Coming From Intestate Husband Descends to Brothers and Sisters of Intestate Wife.</p> <p>Upon the death of a widow, intestate and without issue, personal property which came to her from her deceased husband, who also died intestate, does not pass to the children of said husband by a former marriage, but to her own brothers and sisters.</p>

<p>Error to Cleveland municipal court.</p>

<p>GUARD RAILS — MUNICIPAL CORPORATIONS</p> <p>Whether Ordinance Requiring Erection of Guard Rails Applies To Interior Areaway is Question for Jury.</p> <p>Whether an ordinance requiring owners of property along street lines and on areaways back from streets, where the level is above that of the street, to erect guard rails to prevent injury to persons passing by, applies to the owner of a lot which he had permitted to be generally and extensively used for many years by persons on foot and by vehicles, as a passage way leading from a street to an alley and along which and adjoining his building he has constructed a side wait and a paved drive way is a question for the jury, and a determination by the court that the ordinance was without application and inadmissible in evidence, as a matter of law, constitutes error requiring a reversal of the judgment based thereon.</p>

<p>LANDLORD AND TENANT</p> <p>Tenant Liable for Rent until new Tenant Secured on Vacation of Lease though Full Occupancy not Taken.</p> <p>Under a written lease covering a dwelling, upon which $20 was paid at the time the lease was executed, the refusal of the tenant after entering into possession and partial occupancy to carry out the further terms of the lease because of some alleged interference on the part of the landlord, entitles the latter to judgment for the full amount of rental falling due until such time as another tenant could be secured.</p>

<p>VERDICT</p> <p>Defendants Cannot Complain That Verdict Reduced as Act of Grace was not Apportioned.</p> <p>When a verdict for injuries sustained was reduced by the trial judge sua sponte and not because deemed by him to be excessive, it is an act of grace or judicial clemency on his part and complaint does not lie in the mouths of the defendants because the benefits of the reduction were not apportioned among them.</p>

<p>CRIMINAL LAW</p> <p>1. Relevancy of Previous Conduct and Acts of Accused and Inferences of Intent from Other Acts.</p> <p>Prejudice cannot be based upon the admission of testimony, the recital of which incidentally disclosed a previous arrest and detention of the defendant; on the contrary intent may sometimes be inferred from former criminal acts of the defendant, when the testimony relating to such acts is sharply limited in its application to its bearing on the question of intent in the case under consideration.</p> <p>2. Misconduct of Prosecutor Raise.d by Objection at Time and Exception.</p> <p>In order that advantage may be taken of the alleged misconduct of a prosecuting attorney in his argument to the jury, it is necessary that objection be entered at the time and if overruled an exception be taken to the action of the court in so doing.</p>

<p>BROKERS</p> <p>Commission Payable to Loan Broker When Loan is Secured but Not Taken by Party Making Application.</p> <p>A broker to whom application is made for a loan, having found one who has the money and is willing to loan it on the security offered, but the loan is not made because of a difference arising between the parties for whom it is being procured, is not on that account to be deprived of compensation for the work done, but is entitled to the same commission which would have been payable to him had the offer of the money been accepted.</p>

<p>AUTOMOBILES — NEGLIGENCE—TRIAL</p> <p>1. Verdict in Negligence Case Based on Conflicting Evidence not Reversed.</p> <p>When both parties are charged with negligence and the evidence is conflicting, the judgment will not be disturbed unless it is clearly against the weight of the evidence.</p> <p>2. Omitting’from Instructions to Jury Qualifying Phrase in Traffic Ordinance to Facts of Accident not Prejudicial.</p> <p>In charging a jury with reference to observance by chauffeurs of a traffic ordinance, omission of the qualifying phrase of the ordinance, that drivers would be required to observe the rules therein laid down “as far as practicable,” is not prejudicial when the evidence has disclosed no reason for the failure of the defendant’s driver to observe the strict letter of the ordinance.</p>

<p>RAILWAYS</p> <p>1. Railways not Compelled to Construct Crossings for Abutting Owners of Land Used for Industrial Purposes.</p> <p>Section 8858 G. C., providing for the construction of private crossings for abutting owners of tracts of fifteen acres or more through which a railway passes, has reference to farm crossings where the two parcels so divided are used in a reciprocal or interdependent way, and not to tracts of land used for industrial purposes.</p> <p>2. Private Crossing Denied as Necessity If Land Accessible to Highway.</p> <p>A private crossing can not be required as a way of necessity, where the tract on either side is accessible to a highway, not as convenient perhaps as the short-cut desired, but affording ample and much safer ingress and egress.</p> <p>3. Presumption that Compensation Was Made Originally When the Tract Was Divided Into Two Parcels.</p> <p>A presumption arises in such a case that the inconvenience arising from the division of a tract into two parcels by the building of the railway was considered and discounted when the right-of-way was acquired.</p>

<p>ADOPTION — JUDGMENT AND DECREES</p> <p>1. Right to Inherit not Defeated by Record of Adoption Failing to Show Assent by Both Natural Parents.</p> <p>A right to inherit from a foster parent is not defeated by the absence from the proceedings of adoption of assent thereto on the part of both of the natural parents.</p> <p>2. Rules Governing Collateral Attack Apply to Attack on Order of Court on Petition Jurisdictionally Sufficient.</p> <p>An attack on an order of court, entered in a case in which the petition was jurisdictionally sufficient, is in the nature of a collateral attack and is subject to the rules applicable thereto.</p> <p>3. Presumption Incidental Questions Considered in Proceedings for Equitable Relief.</p> <p>A petition having asked for relief which the court had the power to grant, and a decree was entered in accordance therewith, it will be presumed in subsequent collateral proceedings that all incidental questions were duly considered.</p>

<p>ELECTRICITY — NEGLIGENCE</p> <p>Death of Boy at Foot of Electric Pole not Showing of Actionable Negligence.</p> <p>Notwithstanding a high degree of care is required in the handling and use of electricity, electric companies are not insurers of persons who come in contact with charged wires through their own fault. Hence, actionable negligence is not shown on the part of an electric light and power company in the case of a boy who was a trespasser and was found dead at the foot of a pole upon which wires charged with electricity had been strung by the company under permission of the municipal authorities.</p> <p>[Syllabus approved by the court.]</p>

<p>CONTRACTS</p> <p>1. Agreement to Deliver a Warranty Deed Held not Covenant Against Incumbrances.</p> <p>When a contract for the sale of real estate binds the owner to make and deliver a warranty deed on a certain date, but contains no mention of a covenant against liens and incumbrances, the purchaser must be held to have agreed to take the land subject to such liens and incumbrances as were in existence at the time the contract of sale was executed; accordingly, the seller is entitled to receive the full amount named in the agreement without deduction for liens and incumbrances.</p> <p>2. Protection of One Holding an Inchoate Contingent Right of Dower Enforceable.</p> <p>When it appears that the husband of the owner of lands sold on contract to deliver warranty deed did not sign the agreement to sell and in no way bound himself by the terms of the agreement, the land will be ordered transferred subject to his inchoate contingent right of dower.</p>

<p>PRINCIPAL AND SURETY</p> <p>1. Materialmen and Laborers not Required to Give Written Notice of Principal’s Default to Sue on Bond.</p> <p>A condition in the bond of a surety company, covering a contract entered into by county commissioners for road work, that immediate written notice shall be given to the surety company of any known default on the part of the principal in said bond, does not contemplate that materialmen and laborers must give such notice as a prerequisite to the enforcement of their claims.</p> <p>2. Neither Delivery of Promissory Notes Nor Extension of Time Operates as Release of Surety.</p> <p>The mere execution and delivery of promissory notes, in the absence of an agreement that the said notes are in settlement of the .indebtedness which they represent, does not operate as payment or settlement of the claim or release the surety, nor does a reasonable extension of time for payment operate as a release of the surety.</p>

<p>Wills.</p> <p>Neither Widow Nor Brothers of Deceased Legatee as Heirs Per Stirpes Take Under Lapsed Legacy to Deceased Brother.</p> <p>Under a bequest to four legatees named in the will of a testator “or their heirs per stirpes, each the sum of $1,100 absolutely” the widow of one of the legatees, whose death without issue surviving, preceded the death of the testator, does not take as the heir-at-law of the deceased legatee, neither do the three surviving brothers take said legacy by reason of their relationship to said deceased legatee, but the said legacy lapses under the general law relative to wills and becomes the property of the residuary legatee.</p>

<p>GUARDIAN AND WARD — REAL ACTIONS — WILLS</p> <p>1. Guardian ad Litem not Disqualified because Partisan of Ward.</p> <p>A person not interested in the subject matter of litigation may be appointed to act as guardian ad, litem of a minor defendant. The fact that the guardian ad litem is loyal to and a partisan of the ward is no disqualification.</p> <p>2. Proper Parties in Will Contest.</p> <p>One having a contingent or expectant interest under a will is a proper party to an action to contest said will.</p> <p>3. Proper Parties in Land Registration Proceeding.</p> <p>In proceedings under the act for the registration of titles to real estate, parties having legal or equitable rights including vested, contingent or expectant estates may be brought in and their rights therein may be determined.</p> <p>4. Determination of Rights of Minors in Land Registration Proceeding.</p> <p>When a will has been contested and set aside a minor defendant in such proceedings may be required, in a subsequent proceeding under the registration act brought by a purchaser from the heirs, to set forth any claim such minor may have to' set aside the judgment in the will contest case, and if such claim of such minor be found to be merely colorable and not substantial the cloud arising therefrom may be removed and the title to said real estate may be registered.</p> <p>5. Judgment in Will Contest Defeating will not Conclusive on Minor Claimant in Land Registration Proceeding.</p> <p>A judgment in a will contest case setting aside the will is not conclusive upon the minor defendant, but may be impeached for fraud or other equitable grounds within the limitation prescribed by Sec. 11603 G. C., or when brought in as a claimant under the registration act.</p> <p>6. Title of Bona Fide Purchaser from Heirs without Notice of Claims of Minors.</p> <p>When a judgment setting aside a will is regular upon its face, a purchaser from the heirs at law, without notice actual or constructive of the equitable defense against such judgment by a minor defendant, has superior rights, and the title of such dona fide purchaser can not be impeached by the minor upon a defense not going to the jurisdiction of the court in the will contest case nor appearing upon the face of the record in that case.</p>

<p>LICENSE — TAXATION</p> <p>1. State System of License and Municipal Occupational Tax, not in Conflict.</p> <p>A license issued by the state, authorizing the holder to carry on the business of loaning money on chattel mortgages and assignments of wages, does not exempt such holder from the levy of an occupational tax by an ordinance of the municipality wherein such business is conducted.</p> <p>2. Fee Exacted by State System of License not Tax.</p> <p>The fee exacted by Sec. 6346-2 G. C., is not a tax.</p>

<p>DEEDS</p> <p>Deeds Containing Reservations Held in Escrow for Delivery after Grantor’s Death, Executed when not under Disability.</p> <p>When a land owner executed deeds conveying land to each of his children and placed said deeds in the hands of an attorney to be delivered and become effective at his (the grantor’s) death, and the evidence establishes that the deeds were executed at a time when the grantor was under no disability or inducement and no prejudice resulted to his creditors, the manifest intention of the grantor that these lands should pass to his children as provided in said deeds does not permit of their being declared inoperative because of a reservation contained in each of said deeds, to-wit: “This conveyance is intended by the grantor, James P. Darling, to lay in escrow until the death of the said grantor, and it is not intended to be of any force or effect in the lifetime of the said grantor, but is intended to be of full force and effect immediately upon the death of said grantor.”</p>

<p>LANDLORD AND TENANT</p> <p>Right of Forfeiture in Ninety-nine Year Lease for Failure to Erect New Building within Ten Years Upheld.</p> <p>An option to terminate a ninety-nine year lease at the end of the first ten year period, if in the meantime the old building has not been removed and a new one erected at a cost of $150,000, is not repugnant to a provision in a previous clause of the lease giving to the lessee, upon obtaining the consent of the lessor, the privilege of removing the old and erecting a new building at any time during the ninety-nine year period.</p>

<p>WORKMEN’S COMPENSATION</p> <p>Workmen’s Compensation — Spirit of the Act — Must be so Construed as to Carry Out Its Humanitarian Purpose — Injury to a Milk Wagon Driver During a Storm.</p> <p>When an employe is injured while about his master’s business, doing the work and performing the duties assigned to him, he comes within the legislative purpose and intent in the enactment of the state compensation law, and is entitled to an award because of such injury. Applied' to milk wagon driver injured in hail storm.</p>

<p>COMPENSATION AND SALARIES — JUDGES</p> <p>Invalidity of Act Increasing Judicial Salaries so far as it Applies to Judges in Office.</p> <p>The act of February 4, 1920, (108 O. L., Part 2, 1301), so far as it applies to a judge of the court of common pleas in office at the time the act took effect, is violative of Art. 4, Sec. 14, of the Constitution, and therefore void, regardless of the source of payment of the salary.</p>

<p>ARREST — INTOXICATING LIQUORS</p> <p>1. Liquor Siezed on Premises of the Accused under Search Warrant Used Evidence against Him.</p> <p>When no application is made for the return of goods siezed on a search warrant, and the defendant on trial denies that the goods are his or that they were taken from his possession, it can not be claimed that the goods so seized are incompetent as evidence against him because of Irregularity in the issuance or service of the search warrant.</p> <p>2. Validity of Search Warrants Issued by Municipal Court Clerks, Denied.</p> <p>The clei’k of a municipal court is probably without authority to issue on his own responsibility search warrants for searches under the Crabbe act.</p>

<p>COURTS — SENTENCE</p> <p>1. Amendment Relating to Indeterminate Period's of Imprisonment not Applicable to Offenses and Prosecutions Pending at Time of Adoption.</p> <p>The amendment of Sec. 2166 G. C., giving to courts sitting in criminal cases authority to fix, within the limits prescribed by law, a minimum period for duration of the sentence pronounced, does not apply to pending prosecutions or to offenses committed prior to adoption of the amendment, which went into effect July 3, 1921.</p> <p>2. Jurisdiction of Appeal Courts to Review not Ousted by Board of Pardons.</p> <p>The jurisdiction with which the courts of appeals of Ohio are vested by the constitution “to review, affirm, modify, or reverse the judgments of the courts of common pleas,” would not be ousted in such a case even if the legislature should undertake to provide that the board of administration or board of pardons may correct a sentence imposed by a court in excess of its authority, nor could it he presumed that such a board would properly interpret the law and correct the error complained of.</p>

<p>CRIMINAL LAW — HOMICIDE</p> <p>1. Continuances in Criminal Prosecution in Discretion of Court.</p> <p>The discretion lodged in trial courts as to the granting of continuances will not be regarded by a reviewing court as abused, when six weeks intervened between the date counsel were appointed to defend the accused and the day when the case was brought to trial and a continuance was refused.</p> <p>2. Finding Accused in Homicide Sane Admissible on Trial on Indictment.</p> <p>The special proceeding provided in Sec. 13608 G. C., for determining whether an accused person is sane before putting him to trial under an indictment, is in the nature of a preliminary hearing in the principal case which can be invoked only by the defendant; and when such an inquiry, conducted in accordance with statutory provisions, results in a verdict declaring the defendant sane, objection does not lie on his part to the introduction by the state of such finding in his trial under the indictment.</p>

<p>TRUSTS AND TRUSTEES</p> <p>1. Issues Involved in Previous Litigation are Res Adjudicata and not Litigable in Subsequent Proceedings.</p> <p>Where fraud, undue influence, lack of knowledge and lack of consideration were issues joined in a court of competent jurisdiction, the decree entered therein was necessarily based upon consideration and determination of those issues, and they are thereafter res adjudicata and cannot be again litigated.</p> <p>2. Conveyance of Rights not Rendered Testamentary by Postponement of Execution until Death of Grantor.</p> <p>Rights granted by the execution of an instrument are not rendered testamentary by the fact that possession and enjoyment of some of the rights so conveyed are postponed until after the death of the party granting them.</p> <p>3. Agreement between Father and Daughter Relating to Ownership of Securities Creating Trust Precluding Testamentary Administration.</p> <p>The court finds that the agreement under consideration was a validly executed trust, complete, definite and precise in its terms, and embodying conditions which can be fully carried out, and that the subject matter concerns property which is subject to contract, all of which precludes and renders untenable the theory that the trust was testamentary.</p>

<p>ELECTIONS</p> <p>1. Discretion of Election Officials not Reviewable by Courts.</p> <p>In the absence of fraud or mistake committed or objection made by election officers in arranging and determining the form of ballot or in furnishing said ballots for use at an election as provided by law, their action in that behalf is not reviewable by the courts.</p> <p>2. Designation of Candidates by Placing Circles at Head' of Ballot not Applicable to Independent Tickets.</p> <p>Candidates for office who Rave not been put forward by any organized party and are running as independent candidates as distinguished from party candidates are not entitled to Rave a circle tRree-fourtRs of an inch in diameter, surrounded by the words printed in heavy nonpariel type “For a straight ticket mark within circle,” placed at the head of the column containing their names, and failure to place such a circle and lettering over the names of independent candidates does not render the ballot constructively fraudulent or give a court jurisdiction in the matter.</p>

<p>RAPE</p> <p>Elements Necessary to Conviction for Rape.</p> <p>In a prosecution for rape it is reversible error for the court, in its enumeration to the jury of the elements necessary to a conviction, to fail to include the requisite fact that the person upon whom the rape was committed was “a person other than a daughter or sister of the accused, or a female person under twelve years of age.”</p>

<p>INSURANCE</p> <p>Oral Contract for Automobile Insurance Contracted with Agent Held Valid and Binding.</p> <p>An agreement entered into between an owner and a local or soliciting agent for fire and theft insurance, covering an automobile and personal effects therein, is a contract in praesenti and becomes effective immediately. An attempt by the insurance company in issuing the policy to ratify the agent’s contract in part and reject it in part is without effect in the absence of consent by the insured, and without actual notice he is not bound by conditions in the policy inconsistent with the agreement entered into with the agent, nor by limitations in the charter of the insurance company.</p>

<p>LANDLORD AND TENANT</p> <p>1. Oral- Lease from Year to Year After Expiration of Lease for Term Competent.</p> <p>“A” was in possession of real estate as lessee under a lease for five years containing a privilege of renewal upon the lessee’s giving ninety days’ notice prior to the expiration of the term, the additional term to be at an advanced rental. No notice of an intention to exercise the privilege was given. “A” held over, paying the advanced rental for two and a half years and then vacated the property. Held: “A” may show an agreement for a year to year tenancy made after the expiration of the first year.</p> <p>2. Tenant after Term at Option of Landlord Becomes Tenant from Year to Year.</p> <p>When the lease is for a term of years and the tenant stays beyond the term of the lease, he becomes, at the election of the landlord, a tenant from year to year where there has been no renewal provided for in the lease itself.</p> <p>3. Bill of Particular's in Action Dismissed by Landlord Competent in Second Action.</p> <p>Where, upon abandonment, the landlord sues lessee, alleging that on the date of the new term, by virtue of an agreement between parties, the lease was extended a year, and that a like agreement was entered into for a second year, and then dismisses the suit, and “A” in a second suit offers the bill of particulars filed in the prior suit which was objected to and was excluded. Held: error.</p> <p>4. Payment of Taxes by Tenant through Mistake Gives Landlord no Right to Recover Taxes not Paid.</p> <p>The lease, making no provision for the payment of taxes, the fact that while ignorant of his rights, the tenant reimbursed the landlord upon his demand for taxes paid on the leasehold premises, confers no legal right on landlord to recover taxes which tenant did not pay.</p>

<p>MECHANICS ’ LIENS — MORTGAGES—PAYMENTS</p> <p>1. “Owner” to Whom Notice of Filing Mechanics’ Lien Given, Defined.</p> <p>The “owner of the property,” designated in See. 8315 G. C., as the one who must be notified of the filing with the county recorder of an affidavit for a mechanics’ lien, is the owner to whom the materials were furnished or for whom labor was done, and not some subsequent purchaser who acquired title after the date of the furnishing of the first item of material or labor.</p> <p>2. Personal Knowledge not Required in Making Affidavit for Mechanics’ Lien.</p> <p>The rule that the affidavit which is the foundation of a mechanics’ lien must be sworn to absolutely and not upon information and belief, has reference to the form of the jurat and does not require that the person making the affidavit shall have personal knowledge of all the facts therein contained if he is satisfied of their truth.</p> <p>3. Credits for Money Paid Without Designation of Application.</p> <p>Where part payment is made by the debtor without designation as to the application to be made of the payment, the creditor may apply the payment to that part of the debt for which he has no lien.</p> <p>4. Failure of Present Owner to Plead Covenant against Incumbrances Precludes Sitting Off Mechanics’ Lien Against Mortgage.</p> <p>Failure of the present owner to plead that his deed contains covenants against incumbrances, is fatal to the claim that he is entitled to have the amount of a mechanics’ lien set off against the amount due on a mortgage.</p>

<p>DEATH — PARTITION</p> <p>Bond for Repayment of Heir Missing for Seven Year's, Prerequisite to Partition.</p> <p>Inasmuch as the presumption of death after an absence of seven years without being heard from is rebuttable, a court will order, in a partition of property in which the missing party has an interest, that on distribution bond be given for repayment to him of the amount of his interest in the event of his reappearance, or to his heirs upon satisfactory proof being offered of his death.</p>

<p>ABORTION — CRIMINAL LAW</p> <p>Proof of Negative Averment Under Statute Relating to Procuring Miscarriage not Necessary.</p> <p>While it is incumbent on the state in order to convict in an indictment under Sec. 12412 G. C., for procuring an abortion, to prove that the same was not necessary in order to preserve the life of the mother, the state is not required to prove that such act was not advised by two physicians to be necessary for such purpose, as this latter negative averment may be easily shown by the defendant, while it would be very difficult,' if not impossible, to be established by the state.</p>

The decedent lost her life in a fire in December, 1909, in a building on Third street, owned by Mr. Ruskin, who was in possession of the first floor but had leased the three upper floors to one Wilson as a tenement house. The action was for damages, and at the hearing below a demurrer to the petition was sustained.