Volume 4 — Ohio Nisi Prius Reports, New Series

<p>NEGLIGENCE IN PASSING AROUND THE END OF A STREET CAR.</p> <p>Bill of Exceptions — Not Rendered Invalid — By Failure to Endorse Extension of Time Within the Five Day Period, When — Negligence —Rights of Pedestrians in Grossing Street Gar Tracks — Doctrine of the Snell Oase Applied.</p> <p>1. Should a judge through mistake or forgetfulness fail; within the initial period of five days, to make his endorsement, upon a bill of exceptions of the extension of the time for the signing thereof, the subsequent endorsement of the extension thus granted and signing of the bill within the extended period would be in accordance with law.</p> <p>2. Contributory negligence should not be imputed to one who, in alighting from an electric car at a regular stopping place, passed around the rear end, and was struck by a rapidly moving car running in the opposite direction on the parallel track, and which he could neither see nor hear by reason of the obstruction caused by the car upon which he had been a passenger, in the absence of clear proof of proper warning by the agents of the operating company.</p>

<p>MONEY PAID TO WRONG PARTY BY SAVINGS BANK.</p> <p>Banks and Banking — Liability of Savings Bank — For Money Paid on a Stolen Book — Negligence of Depositor — Reasonableness of Bank’s Rules — Questions for the Jury.</p> <p>1. While a bank is not an insurer that it will never pay a deposit to the wrong person, it is bound to exercise reasonable care under the circumstances, notwithstanding any of its own rules to the contrary; and reasonable care on the part of a bank is a very high degree of care.</p> <p>2. The fact that a young man earning wages every day, with no family ' to support, and in good health, should place his bank book in his trunk and not look for it again for nine months, does not constitute negligence as a matter of law.</p> <p>3. Whether, the book having been stolen, the payment of the deposit to another constituted negligence on the part of the bank, is a question to be determined by the jury under all the circumstances of the case.</p>

<p>PAROL TESTIMONY VARYING A WRITTEN INSTRUMENT.</p> <p>Promissory Notes — Advancements—Parol Testimony Varying Written Agreement — Statute of Frauds — Words and Phrases — Authority of Decisions in Other States.</p> <p>1. The decisions of courts in other states are not authority in the sense of that which is binding; but they should be consulted diligently and respectfully for enlightenment, and should be given great weight, or little weight, or no weight, according as their reasoning appeals to the judgment of the court considering the question.</p> <p>2. Where the suit is on a promissory note set forth in the petition, and the averments of the answer if sustained by evidence would only tend to contradict and destroy the written contract therein embodied, an objection to the introduction of any evidence by the defendant under the pleadings should be sustained.</p>

<p>SECONDARY LIABILITY OF STOCKHOLDERS.</p> <p>Corporations — Indebtedness of — Stockholders’ Liability Therefor — Corporate Property the Primary Fund for Payment Thereof — Action to Enforce Double Liability — Hot Available to Holder of Bonds not Reduced to Judgment.</p> <p>1. It is well established that the secondary liability of stockholders as guarantors of the corporate debts to the extent of their statutory liability can not be enforced, except upon a claim against the corporation which has been reduced to judgment and execution returned nulla bona.</p> <p>2. Neither this rule nor the exception thereunder, which saves the holder of a meritorious claim from unnecessary and perhaps fatal delay, permits the insolvency of an incorporated company being pleaded by the holder of a bond of one of the constituent companies, and not yet due, as a ground for enforcing the double liability of the stockholders.</p>

<p>PUBLICATION OF COUNTY COMMISSIONERS’ FINANCIAL REPORT.</p> <p>County Commissioners — Annual Financial Report of — Publisher Entitled to Price and a Half, When — Compliance with Section 917— And with Section 4366 — Report of Examining Committee — No Requirement that it be Published in Tabular Form.</p> <p>1. The annual financial report of the county commissioners made up and published in two columns, one consisting of the names of the persons to whom the items are paid and the purposes for which the items are paid, and the other consisting of the amounts, in figures of each payment, separated from the column of words by sufficient blank space to make each column distinct to the eye, is a fair compliance with Section 917 of the Revised Statutes providing for such report.</p> <p>2. Such publication so made and with leaders and two or more justificacations- is tabular work within the meaning of Section 4366, and in the absence of a special contract the publisher is entitled to the price and a half rate therein prescribed.</p> <p>3. The report of the examining committee appointed hy the court to examine such report is not required to be made up or published in tabular form, and should be paid for only at the one-price rate.</p>

<p>APPRAISEMENT AS A BASIS FOR RECOVERY OF FIRE LOSS.</p> <p>Fire Insurance — Ascertainment of Loss by Appraisement — Not a Prerequisite to Recovery, When — Refusal of Company’s Appraiser to Act — Appraisement Completed without Him — Objections thereafter to Proofs of Loss not Well Talcen.</p> <p>1. The provision in an insurance contract for an appraisement in case of loss, is a matter relating to a mere detail of proof as to the amount to he recovered, and does not touch the fundamental right of recovery.</p> <p>2. Where in pursuance of such a provision appraisers are duly appointed and proceed with the work, the power of the contracting parties in that behalf becomes functus officio; and the arbitrary withdrawal thereafter of the appraiser representing the insurance-company, the refusal of the company to name a new appraiser, renders the appraisement condition impossible and relieves the assured of its performance, and does not give to the company the right to demand a re-submission, and the loss thereafter becomes a fact to be proved like any other fact.</p>

<p>NOTICE BY SURETY TO CREDITOR. TO SUE.</p> <p>Principal and Surety — Demand by Surety for Suit by Creditor Against Principal — Not Complied with, When.</p> <p>Where a surety on a note, in answer to a letter from the owner of the note requesting payment, writes “Please collect of Mr. Beers (the principal) all you can of this amount, and notify me, and I will arrange for the balance,” and the owner of the note answers, .suggesting that the surety see the principal and secure himself against loss, and the surety immediately replies, saying, “I will try and see Mr. Beers (the principal) soon; am very busy for a few days, and will report to you as soon as I can. Thanks for your suggestion,” and nothing further is done by either party in reference to the matter—</p> <p>Held: That that does not constitute a sufficient notice, according to the provisions of Revised Statutes, Section 5833, to relieve the surety, because of the neglect of the owner to bring suit on said note for six years after such correspondence.</p>

<p>JURISDICTION OF COMMON PLEAS IN ERROR..</p> <p>Error to Mayor’s Court — -Jurisdiction of Common Pleas — Ms to Errors of Fact not Appearing in the Record — Recourse Should he had to Correct the Record, When.</p> <p>1 The common pleas court has jurisdiction, under Section 6708, to consider errors of fact not appearing on the record from the court below.</p> <p>2. This jurisdiction is limited to facts of which the record may not be compelled to speak, and when the challenge is as to facts which should appear in the record, recourse should be had to correct the record in the court making it.</p>

Wheeler v. City, 19 O. St., p. 19, holds that powers conferí ed on municipal corporations, that are in their nature legisgislative and governmental, are to be governed in their exercise by the judgment and discretion of the proper municipal authurifies; and for any defect in the execution of such powers the corporation can not be held liable to individuals. Conneaut v. Neaf, 54 Ohio St., 529.

<p>RESTRICTIONS IN DEED AS TO CHARACTER OF IMPROVEMENTS.</p> <p>Deed — TJse of Property Restricted to Residence Purposes — Valid, though not in Deeds of Neighboring Lot Oioners — Apartment House a Violation of Restriction — Uniformity of Frontage, tohat Constitutes — Injunction Against Threatened Violation of Restrictions.</p> <p>1. Where there are restrictions in a deed conveying the fee which forbid the grantee from erecting any building except of a certain kind upon the ground, the grantor may bring an action for a violation of the covenants by the grantee even although the lot is in a subdivision where there is no “plan” (as to kind and cost of houses, etc.), and although there are no restrictions upon any of the other lot owners in the subdivision, and, further, that the grantor owned no lot in the subdivision except this one sold to the defendant.</p> <p>2. Building an apartment house is a violation of a restriction which requires the grantee to use the lot “for residence purposes only.”</p> <p>3. A restriction in a deed that the front of said dwelling house or any part thereof shall not be nearer to the street than the house next east, means that the front walls of both houses must be in line with each other; and to build a house so that its front wall is in a line with the front of the porch of the adjacent house is a violation of the restriction in the deed.</p> <p>4. When there are restrictions put upon the grantee in a deed as to the use of the ground, a court of equity ■ will, in behalf of the grantor, restrain any violation of the restrictions which are threatened by the grantee.</p>

<p>WORDS OF PERPETUITY IN TRUST DEED.</p> <p>Deeds — Executed by Trustees — Word “Heirs” not Necessary to Create a Fee, When — A Trustee not a Mere Repository of Title, When— Exceptions to the Rule as to Words of Inheritance and Words of Limitation.</p> <p>The use of the word “heirs” or other words of perpetuity in a trust deed are not necessary t;o vest a fee simple title in a trustee, where the face of the deed discloses a purpose to grant power of sale to the trustee; and the omission to name successors is without significance so far as sales by the original trustee are concerned, and should a new trustee be appointed, he can be empowered to carry out the purpose of the trust so far as is found necessary.</p>

<p>CONCURRENCE OF BENEFICIARIES NECESSARY TO RECISION OF UFE INSURANCE CONTRACT.</p> <p>Life Insurance — Vested Interest of Beneficiaries — Concurrence of Beneficiaries Necessary — To Rescission of Contract — Or Suit for Recovery of Premiums Paid — Parties—Pleading—Burden of Proof.</p> <p>1. Where a plaintiff pleads a right alleged to be vested in himself, and the proof discloses a right vested jointly in himself and another who is not a party- to the action,' the suit fails, and should he dismissed.</p> <p>2. The concurrence of the beneficiaries is 'a condition precedent to valid action on the part of the insured in the nature of treating a contract of life insurance as rescinded and basing thereon a' suit for recovery of premiums paid; nor can a suit, without the concurrence of the beneficiaries, be based upon the wrongful refusal of the company to receive further premiums or continue the policy in force.</p>

<p>STOCKHOLDERS’ LIABILITY OF ESTATES OF DECEDENTS.</p> <p>Stockholders■ — Claims on Statutory Liability and Unpaid Subscriptions —Against the Estates of Decedents — Presentation of Claim — Statute Begins to Run, When — Personal Liability of Sole Devisee— Bankrupt not Discharged from Stockholders’ Liability, When— Presumption that Stock Transferred at Par was Paid for in Full.</p> <p>1. It is not a condition precedent to the enforcement of stockholders’ liability against the estate of a decedent, that the claim be presented to the executor.</p> <p>2. As to a claim for unpaid stock subscriptions, the statute begins to run and a right of action accrues from the appointment of a receiver or other act of insolvency on the part of the corporation.</p> <p>3. Under a will providing that all debts of the estate shall first be paid, the stock of an insolvent corporation comes into the hands of the executor as a liability, and not as an asset; but where the executor is also the sole devisee, and the stock is not specifically mentioned in the will, and is not accepted by the devisee, the statutory liability can not be enforced against such devisee personally.</p> <p>4. A discharge in bankruptcy is not effectual to discharge a claim for stockholders’ statutory liability or unpaid stock subscription, where it appears that the claim was not properly scheduled, and no notice of the bankruptcy proceedings was served on the corporation, and there is no showing that the claim was ever liquidated.</p> <p>5. A stockholder purchasing stock at par is entitled to the presumption that the original subscriber therefor paid for the stock in full, and a claim on account of unpaid subscription will not lie against such purchaser at par.</p>

<p>DAMAGES FOR INJURY TO AN INFANT.</p> <p>Negligence — Injury of Infant — Elements Upon Which to Base Damages —Verdict of Jury Should Stand, When — Matters not Susceptible of Expert Testimony — Charge of Court — Speculative Damages.</p> <p>1. A matter not susceptible of expert testimony should be determined by the jury from the evidence without the expression of opinion on the part of the witnesses.</p> <p>2. In an action for damages on account of the wrongful injury of an infant, it is erroneous to instruct the jury as to special damages, when the petition does not allege nor the evidence show special damages; and so as to time lost and diminished earning capacity, when there is not evidence relating thereto, and no evidence of the emancipation of the minor.</p>

<p>SPECIFIC PERFORMANCE AGAINST ONE HAVING NO TITLE.</p> <p>Specific Performance — Defendant without Title — Conveyance can not he Compelled, When — Nor can Damages he Assessed, When.</p> <p>1. Where A purchases land of B which B has purchased from C, but which C has not transferred to B, specific performance can not be enforced by A against C, nor can A compel B to compel C to carry out his contract.</p> <p>2. Moreover, where suit is brought for specific performance against a defendant who has no title, and his want of titlfe was known to the plaintiff at the time of the bringing of the suit, the petition can not be retained for assessment of damages.</p>

<p>RECOVERY BY MOTHER FOR SUPPORT OF CHILDREN.</p> <p>Husband and V/ife — Parent and Child — Divorce Granted to Husband in Another State — Does not Release Him from Obligation to Support His Children, ~When.</p> <p>Tiie dissensions of parents do not release the father from the obliga- . tion to support his children, and the fact that he has obtained a decree of divorce in another state, after a separation which continued for many years, does not bar recovery by the wife from him of money expended in the support of their children prior to the granting of the decree; nor can aggression on her part be inferred as a matter affecting the rights of children, where the decree assigns no cause for the divorce and makes no provision for alimony or for the children.</p>

<p>LIABILITY OF SURETIES ON BOND OF AN OFFICIAL.</p> <p>Office and Officer — Sureties on Bond of Official — Answerable Only 'Within the Letter of Their Contract — And Not for Dereliction Outside of Official Duty■ — Sections 4013, 4042, 4047 and 4055.</p> <p>A bond for the faithful performance of the official duties of the clerk of a board of education binds the sureties for the faithful performance of official duty only, and not for malfeasance in the performance of duties not imposed by law.</p>

<p>ENFORCEMENT OF STATUTORY LIABILITY OF STOCKHOLDERS.</p> <p>Stockholders — In Insolvent State Bank — Enforcement of Statutory Liability of — Liability Accrues, When — Status as to Estate of Deceased Stockholder — Action by Creditor before Ascertainment of Condition of Corporation.</p> <p>1. In an action to enforce the' statutory liability of stockholders, a demurrer will lie to an allegation in the answer of a defendant 'that he was not a stockholder at the time the debt mentioned in the petition was contracted.</p> <p>2. While an action to enforce stockholders’ liability ought usually to be postponed until an ascertainment has been made by the receiver- of the corporation as to what its assets will be, an action brought by a creditor prior to such ascertainment is not dptr-ur rabie “on that ground.</p> <p>3. Statutory liability attaches to all who aré stockholders at the of the enforcement of such liability, regardless of the date on which they became stockholders.</p> <p>4. A demurrer will lie to an allegation by the executor of a deceased stockholder, who alleges that he has fully settled up the estate but does not plead the statute of limitations.</p> <p>5. Where the insolvent corporation is a bank organized under the -laws of Ohio, an allegation that a defendant stockholder is not liable- ■ for anything beyond the subscription price of his stock, does not state a good defense.</p>

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

<p>ENJOINING STRIKERS.</p> <p>Contempt — Power of Court to Punish Strikers Guilty of — Jurisdiction Complete — Conduct Against which Injunctions will Lie — Peaceable Enticement Away of Employes not Unlawful — Use of Money not Unlawful, When — Motive of Strikers — Degree of Proof Necessary' to Convict — Sections 5640 and 5649 — What Constitutes Unlawful Persuasion.</p> <p>1. A court of record has complete jurisdiction, and inherent power to punish for contempt, in the case of an employer who complains of interference with his business and irreparable injury thereto by . strikers and members of a labor union; the question on review of proceedings in this case is, whether the evidence sustains the judgment which was rendered.</p> <p>2. Where the record shows that the acts of which the defendant strikers and their leaders have been found guilty consisted in peacefully enticing employes to leave their employment when not under contract to remain, and in giving them railroad tickets and money for traveling expenses to go to another city ■ with their families, a finding that such conduct was unlawful persuasion and in contempt of a previous order of court which enjoined against unlawful persuasion, will be reversed on the ground that the defendants were acting within their rights.</p> <p>8. In considering • the conduct of the persons charged with unlawful-persuasion the motives with which the person acted are immaterial, if it appears that such person was in the exercise of a clear legal right or in the performance of a duty.</p>

<p>PETITION BY MUNICIPAL CORPORATION FOR LOCATION OF COUNTY DITCH.</p> <p>County Ditch — Petition for Construction of — Where Presented by Municipal Corporation — Enlarging of Water-course not Authorized— Requirements as to the Bond — Sections 4483 and 4451.</p> <p>I. Section 4483, Bates’ Revised Statutes, does not authorize the deepening, widening or straightening of a water-course by the county commissioners, upon petition of a mayor acting under resolution, in that behalf, of a municipal corporation.</p> <p>2..The bond to be filed under Section 4483, to support a petition for a ditch improvement, must follow the requirements of Section 4451, and confers no Jurisdiction upon the county commissioners unless signed by at least two sufficient sureties.</p>

<p>COVENANTS IN RESTRAINT OF TRADE.</p> <p>Monopoly — Contracts in Partial Restraint of Trade not Enforceable, When — Mutuality—Consideration—Covenants—Mortgage—Equity— Injunction — Restriction of Use of Property to Sale of Beer of a Certain Manufacture.</p> <p>1. It the contract is in partial restraint of trade, it can not be enforced unless it appears from the pleadings and the evidence to be founded upon a valuable consideration and to be reasonable and not oppressive.</p> <p>2. Z borrowed money from the H T B Co., to be repaid in sixty-eight monthly installments, giving as security therefor a mortgage covering premises whereon she covenanted to erect a saloon and sell beer of the manufacture of the mortgagee for a period of ten years exclusively, this restriction to run with the land, and making unpaid Dow tax and accounts for beer furnished a lien on the premises. Held: That the contract is unreasonable and oppressive and lacking in mutuality, and injunction against the sale by Z of beer of other manufacture will not lie.</p>

<p>DATE OF RELIEF FROM STOCKHOLDERS’ DOUBLE LIABILITY.</p> <p>Ohio Corporations — Double Liability of Stockholders of — Terminated, When — Constitutional Amendment Self-Executing — Repeal by Implication — Old and New Sections 3258 and 3258a.</p> <p>1. The amendment of Section 3 of Article XIII of the Constitution of the state, which went into effect November 23, 1903, repealed by implication the provision of Section 3258 as to double liability of stockholders, which was in force at that time.</p> <p>2. Moreover, the provision of this amendment, that “in no case shall any stockholder be individually liable otherwise than for the unpaid stock owned by him or her,” does not merely indicate a line of policy without supplying the means by which such policy is to be carried into effect, but is absolutely prohibitory in its character and became self-executing.</p> <p>3. It follows, therefore, that stockholders in Ohio corporations are relieved from double liability for debts incurred by such corpora, tions, not only from and after the legislative enactment of April 25, 1904, but from the going into effect of the constitutional amend ment on November 23, 1903.</p>

<p>POWER OF COUNCIL TO AUTHORIZE EXCLUSIVE OCCUPATION OF STREETS.</p> <p>Municipal Corporations — Overhead Railway Structures in Streets — No Rower in Council to Aiithorise, When — Could Not be Conperred by an Obscure Amendment to a Penal Statute — Statutes Relating to Bridge Companies and Grade Crossings Not Applicable — Application of the Maxim, “Expressio Unms Est Exclusio Alterius” — Sections 3283, 2640, 6921, 1536-100, 1536-102 and 3337-1 as Amended.</p> <p>1. There is an entire absence of power in council, under the statutes as they exist today, to authorize the erection of any structure, abutment or support in a public way, which will necessarily prevent a joint use by the public of the part so occupied.</p> <p>2. Section 3337-1 is a statute penal in its nature, and the maxim expressio unms est exclusio alterius can not be invoked in order to derive therefrom power vesting in the municipal corporation the right to grant to railroads the exclusive use of the public streets.</p> <p>3. But even if the power were lodged by the statutes in council to grant some use of the city streets to railroads for placing piers, posts or supports therein, the power could not be abused by council, and if it is abused in such a way as to interfere with the ordinary rights of the public in and to the ordinary use of such streets, a court of equity will interpose by injunction.</p>

<p>LIMITATION AS TO TIME FOR BRINGING SUIT ON AN INSURANCE POLICY.</p> <p>Fire Insurance — Limitation of Time for Bringing Suit — Contract Valid, When — Burden of Showing Invalidity of, because Oppressive.</p> <p>1. Tile provision of a xiolicy of fire insurance, limiting the time within which a suit can be brought thereon to six months after the fire, is valid in the absence of circumstances indicating that the effect of the limitation upon the insured is harsh and oppressive.</p> <p>2. The burden is upon the one complaining to show that the effect of the rule in a given case is such as to demand that its operation be suspended.</p>

<p>DOMICILE OF MINOR.</p> <p>Parent and. Child — Guardian and Ward — Domicile- of Minor — Jurisdiction of Probate Court — Section 6254, Relating to the Appointment of Guardians of Minor Residents.</p> <p>1. A minor can not himself change his domicile, and as the residence of a minor is determined by the domicile of a parent or some person standing in the relation of a parent to him, the word “resident,” as used in Section 6254, Revised Statutes, means “domicile.”</p> <p>2. Where the father who is the last surviving parent of a minor, dies while domiciled with the father’s parents, and the minor continues, for a time after the death of his father to reside with the grandfather, the minor is a “resident” of the county in which the grandfather is domiciled, within the meaning of Section 6254, Revised Statutes of Ohio.</p> <p>3. Where a minor five years old, so domiciled with his grandfather, is removed by his aunt, with the consent of said grandfather, to another county to live in and as a part of the family of such aunt, the domicile of such minor is not thereby changed so as to give the probate court of the county in which said aunt has her domicile, jurisdiction to appoint a guardian for said minor, while said grandfather is living and has not changed his domicile.</p>

<p>INTEREST ON PUBLIC FUNDS.</p> <p>Banks — Liability of, for Interest on Public Deposits — Where the Char-aster of the Deposits are Known — Relation of Quasi Trustee Created — Nature of Action for Recovery of Interest — Authority of the Prosecuting Attorney.</p> <p>1. Where a county treasurer without authority under the depository law, deposits the public funds with a bank which receives the funds with full knowledge of their character, and loans the same at interest, such bank will be required to account to the public for the interest so received.</p> <p>2. The prosecuting attorney has authority to bring the action requiring the banks to account for, and restore such interest.</p>

<p>INFERENCES AS TO NEGLIGENCE.</p> <p>Negligence — Verdict Based on Claim — That Car Brake was Defective— Claim a Presumption only — Unsupported by Evidence — Burden of Proof — Scintilla Rule — Charge of Court — Section 33G5-21.</p> <p>in an action for damages for wrongful death, where the only evidence of negligence is an inference drawn from circumstances, and other circumstances are proven, from which the inference of the absence of negligence is clearly a more natural and stronger inference, and the verdict is for the plaintiff, upon whom the burden of proof rested, it is the duty of the court to see that the party on whom the burden of proof is cast sustains that burden, and to set aside a verdict, which' is in effect based upon the conjecture of the jury that the defendant was negligent.</p>

<p>COUNSEL FEES IN FAMILY LITIGATION.</p> <p>Attorney and Client — Husband and Wife — Parent and Child — Counsel Fees in Suit between Husband, Wife and Son Involving Property Rights.</p> <p>In an action brought by a husband to wrest from his wife an interest in land belonging to him, and also the interest belonging to the wife and the interest belonging to their son, the wife and son can not be compelled to pay the counsel fees due from the husband and earned in his undertaking to deprive them of their property.</p>

<p>EXEMPTION OF FUNDS USED IN ACQUIRING A HOME.</p> <p>Exemptions — Husband and Wife- — Earnings Used in Paying for a Home —Beyond the Beach of Creditors of the Husband, When.</p> <p>Where a debtor earning $60 a month gave $15 a month to his wife, which she used in paying to a building association dues on a loan used in building the house in which the family reside, the money thus paid will be regarded as rent, and under the exemption laws is beyond the reach of creditors. But money previously paid by the husband, out of his earnings for the lot on which the house stands, is not exempt, and the property to the extent of such payments by him is liable for his debts.</p>

<p>QUESTIONS AS TO TITLE TO LAND.</p> <p>Title — Equitable Estate in Cestui — Power of Alienation — Successor to Lessee Attorns to Reversioner — Conveyance with Reservation of Life Estate — Not an Eviction — Lessee of Assignee a Surety — Assumpsit — Estoppel.</p> <p>1. A provision that the net income from land is in any event to go to the cestui, with power to collect and without any discretionary control in the trustee, conveys to the cestui an equitable estate, ■which under the rule in Shelley’s case is an equitable fee with the power of appointment merged in 'the power of alienation.</p> <p>2. A successor to the title of a lessee long subsequent to the execution of the power of alienation,' by entering upon the estate and paying rent to the present claimant of title for a period of years, attorned to her as the reversioner, and is estopped from denying her title.</p> <p>3. A'subsequent conveyance by the claimant to her daughter, with a reservation of a life estate, was not an eviction, or a breach of covenant for quiet enjoyment.</p> <p>4. Assumpsit being an action of an equitable character may be employed to recover installments of rent as they become due under a contract to pay by installments.</p> <p>5. A lessee from an assignee is a surety, and the lessor has his remedy ■ against either.</p>

<p>BONDS IN INJUNCTION SUITS.</p> <p>Injunction — Temporary Order Granted and Bond Given — Liability of Surety — Where the Action is Dismissed by Consent — Without Prejudice — For Faihire to Prosecute.</p> <p>The failure of a plaintiff to prosecute an action for an injunction, where a temporary restraining order has been granted and bond given, is a confession by him that he has no case to try, and that his interference with the rights of the defendant by injunction was without warrant, and the surety is liable, whether the action is dismissed at the request of the plaintiff, or because of his neglect to prosecute. Krug v. Bishop, 44 Ohio State, 221, distinguished.</p>

<p>PROSECUTION OF PHYSICIAN AS AIDER. AND ABETTOR UNDER THE BEAL LAW.</p> <p>Liquor Laws — Declaration of Purchaser — Who Hacl Been Given a Prescription for Liquor — -Incompetent against Physician, When — Activity of Mayor in Securing Evidence to Convict — Not a Disqualification for Sitting at Trial.</p> <p>1. In a prosecution under the Beal law, of a physician as an aider and abettor in the sale of intoxicating liquor in a dry town, in that he gave prescriptions to parties for liquor which was purchased at the drug store, a declaration by the purchaser to the druggist as to what -he wanted the liquor for, is incompetent when made in the absence of the physician.</p> <p>2. The employment by a mayor of detectives to obtain testimony for use in a prosecution for liquor selling, and the payment of such detectives by the mayor for the services so rendered, does not disqualify the mayor from sitting at the trial of the case; nor is he disqualified by opinions he may entertain regarding the offense.</p>

<p>DEFENSES IN ACTION FOR. RECOVERY OF DEBENTURES.</p> <p>Debentures — Relation of Purchaser to Company Issuing — In Particeps Criminis — Purpose of Section 4271 — Pro Tanto Defense — Statute of Limitations.</p> <p>1. The provisions of Section 4271, for the recovery of money lost in lotteries, ■ are not available to a purchaser of certificates commonly called debentures, where the purchaser becomes a member of the corporation issuing the debentures and a part owner thereof and participates in the profits.</p> <p>2. An allegation that a plaintiff, suing for the recové] y of money lost in the purchase of debentures, has shared in the distribution of the assets of the company by its receivers, constitutes, if proven, a pro tanto defense, and also states the further defensive fact that the plaintiff was a part owner óí the business.</p> <p>3. Such an action is barred by the statute of limitations, if not brought within one year from the time the cause accrued.</p>

<p>CONVERSION BY A COURT OFFICER..</p> <p>Criminal LaW‘ — Embezzlement—History of the Statute Relating to — ■ Rules of Construction — Neither the Court nor its Receiver an “Officer” — Section G842.</p> <p>Special masters commissioners and receivers are not subject to prosecution for embezzlement in Ohio.</p>

<p>THE LIMITATION OF LIFE INSURANCE TO LICENSED AGENTS.</p> <p>Life Insurance — Prohibition against Soliciting Insurance — Unconstitutionality of the Statute Suggested — Who are Competent to Become Licensed Agents Thereunder — Contract as to Commission for Recommending Agency.</p> <p>1. Where it is agreed between a life insurance agent and another that a commission shall be paid to him upon 'the “first installment of premium” received from one recommended to the agency by him, the contract wall be construed to mean that a commission is to be paid on the first annual premium paid, where it appears that the minds of the parties met on that basis.</p> <p>2. The provisions of Section 283, making it unlawful for one not duly authorized by the insurance company and licensed by the superintendent of insurance to procure, receive or forward applications for insurance in any company, are not applicable to such a contract.</p>

<p>Taxation of life insurance companies.</p> <p>Taxation — Debits and Credits of Life Insurance Companies — Deferred Dividends — Reserve Fund — Bank Deposits — Contingent Obligations —What Constitutes a Debt Owing — Checks for Proposed Loans or Investments not a Debit — Uniform Taxation — Double Taxation— Tax Returns of Corporations and Individuals — Sections 2730, 2731, 3648, 3598-4, and 1094.</p> <p>1. Accumulated deferred dividends or undivided profits arising on life rate endowment policies of a life insurance company are not, under the Ohio statutes of taxation, to be considered as a “legal bona fide debt owing” by the insurance company, and can not therefore be legally deducted from the company’s “credits” when its return for taxation is made up.</p> <p>2. Neither can the reserve fund of a life insurance company be considered a debt owing to the policy holders, in the sense that it may be deducted from the credits and thus escape taxation.</p> <p>3. Bank deposits are not relieved from taxation merely because it may appear that the funds have been checked against. Nor is good faith in the issuing of the checks involved. The lien of the state attaches to the deposits on the tax day, unless it appears that prior thereto the checks were presented for payment; or that the bank by certification or otherwise irrevocably committed itself to the holder. In other words, where it appears that the money on deposit on tax day is still subject to the legal demand of the depositor it is taxable, notwithstanding the fact that there may be checks outstanding against said fund.</p>

<p>RECOVERY FROM A MUNICIPALITY FOR WORK DONE UNDER AN INVALID LAW.</p> <p>Constitutional Law — Improvement of Streets — Pleading Showing Jurisdiction of Council — Delegation of Poioer — Estoppel—Refusal of Municipality to Levy Assessment — Remedy of Contractor — Mandamus —Application of Section 2702.</p> <p>1. If the material and essential facts necessary to give council authority to proceed .with a street improvement are stated in a petition involving action with reference thereto, recitals-which are mere conclusions of law may be treated as surplusage and the petition allowed to stand.</p> <p>2. The facts giving council jurisdiction are, filing of a petition for the improvement with a statement as to the material to be used, publication of notice, a hearing before council, and a finding that the petition was signed by the requisite number of abutting owners and that the improvement is necessary.</p> <p>3. The act of April 4, 1900, relating to the improvement of streets in cities of the second class and fourth grade, is unconstitutional for lack of uniformity of operation.</p> <p>4. But a petition, evidently drawn with reference to the provisions of this act, is still good against demurrer when its allegations bring it within the provisions of the general laws on that subject.</p> <p>5. A contract for a street improvement which provides that the work shall be done to the satisfaction of the civil engineer and paving committee, does not exhibit such a delegation of authority as to render the contract void.</p> <p>G. One who has performed work for a municipality in accordance with his contract and has not been paid therefor, has a right to a judgment at law for the contract price, and he can not resort to mandamus to compel the levying of an assessment or tax to pay his judgment until it appears that it can not be enforced by execution.</p>

<p>JOINT USE OF MUNICIPAL POLES.</p> <p>Municipal Corporations — Without Poioer to Permit Joint Use of City Poles for Blectric Wires — Are Such Poles Personal Property!— Power of Municipality to Sell or to License Use of Personal Property — Jurisdiction of Board-of Public Service over Poles.</p> <p>1. The right by a public lighting company to maintain its wires on • municipal poles can not be acquired by estoppel, where the company claiming such right has been charged from the beginning with full knowledge that whatever rights it might acquire to the use of such poles must be through strict legal contract with the municipality.</p> <p>2. There is an entire absence of express power, either in the municipal code or previous statutory provisions, whereby a municipality may grant to a lighting company the right to jointly use municipal poles; nor can such power be implied from authority to sell either real or personal property; and to treat such pole rights as a mere license might easily result in confiscation to a degree which would exclude the city from larger use demanded by future growth.</p> <p>3. The fact that public policy and good business judgment favor an advantageous contract for the joint use of city poles, furnishes no warrant to a court to assist in a continuance of such use, where the entering into such a contract is manifestly ultra vires on the part of the municipality.</p>

<p>GIVING AWAY SAMPLES OF LIQUOR. IN “DRY” TERRITORY.</p> <p>Liquor Laws — Duty of Mayor Sitting at Trial — Fixing Time for Preparing Bill of Exceptions — Transmission of Papers to Common Pleas Court — Giving Aioay of Small Samples — Meaning of the Word “Beverage" — Sections '6565 ancl 4364-20(7.</p> <p>1. While it is the duty of the mayor, sitting at a trial under the local option law, to transmit to the clerk of the common pleas court the papers in the case within ten days from the allowance of the bill of exceptions, failure on his part so to do can in nowise prejudice the party seeking to prosecute error to the higher court.</p> <p>2. The provisions of Section 6565, relating to bills of exceptions, are sufficiently complied with if a time is fixed at the close of the trial for the allowance of the bill.</p> <p>3. A traveling salesman for a liquor house gave away samples of his goods, about a teaspoonful in each instance, in “dry” territory, for the purpose of being tasted by prospective customers. I-Ielcl: That his action in so doing was a giving away of intoxicating liquor as a beverage.</p>

<p>TAXATION OF RAILROADS.</p> <p>Taxation — RaiUoay Property Taxable as a Unit — Property Which May be “Localized” — Bridges, Viaducts, Trestles, Side-trades, Slopes, Freight Yards, and Ground Purchased for Connection Trades — Sections 2770 to 2776 — Powers of Auditor under Section 2781a.</p> <p>1. In entering for taxation the property of a railroad which lies partly within and partly without the state, Sections 2772 and 2776 should govern, and not Section 2774.</p> <p>2. The bridge of the Cincinnati Southern Railway, which spans the Ohio river, together with the viaduct or trestle leading up to it, constitutes, with the underlying ground, a part of the road-bed, and is property necessary to the daily- operation of the road, and there being no additional charge to shippers or passengers on account of the use of this bridge and viaduct, it should be taxed with the remainder of the road as a unit and “averaged” over the entire road.</p> <p>.3. The side-tracks of the company, which are in daily use for the loading and unloading of freight, and ground purchased for the purpose of establishing a connection track with another railroad, do not constitute real estate, structures, or stationary personal property to be “localized” for taxation, but should likewise be “averaged” for taxation over the entire road.</p> <p>4. Such being the status of railroad property of this character, the auditor can not, after having ascertained its value under Section 2772, again tax it as omitted property; nor can he treat it as omitted property which has escaped taxation; nor would he be justified in again placing it on the duplicate on the ground that his action was in effect a revaluation or a correction of an undervaluation.</p>

<p>GUARDIANSHIP.</p> <p>Guardian — Finding of Necessity for Appointment of — Not a Final Order —And not Appealable — Section C40Y, Relating to Appeals.</p> <p>Application was made to the probate court for the appointment of a guardian for Elias Breitenstein; the court, on hearing, entered on the record its finding and decision that due notice of said application had been given, that said Elias Breitenstein was a resident of the county and was an imbecile, and that it was necessary to appoint a guardian for him; but no guardian was appointed, and no further order was made by the court.</p> <p>Held: Elias Breitenstein is not entitled to appeal from such finding or decision of the probate court.</p>

<p>SURPRISE AT SEVERITY OF SENTENCE.</p> <p>Constitutional Lato — Penal Clause of Valentine Anti-Trust Act — Not Invalid for Lack of Uniform Operation — Classification of Persons and Corporations■ — Criminal Procedure — Misleading Defendants to their Prejudice — Mistaken Expectation of Leniency — Prosecution of Ice Men — Under the Anti-Trust' Lato — Affidavits of Prejudice — Legal Ethics.</p> <p>1. The imprisonment or penalty clause of the Valentine Anti-trust law is not in contravention of the constitutional requirement that all laws of a general nature shall have uniform operation throughout the state.</p> <p>2. What the court said and did during the trial of this case did not mislead the defendants into withdrawing their picas of not guilty and entering pleas of guilty, or to the talcing of other action to ’the prejudice of their rights; they were surprised, not by any wrong or unfair thing which the court did, but by the severity of the sentence imposed; and in the entire absence of any promise or intimation of leniency, the misjudgment of the defendants and of their attorneys as to the attitude of the court with refrence to the nature of the offense committed and the degree of punishment which should be imposed is not ground for vacation of the sentences which were pronounced.</p> <p>3. The rule safeguarding the rights of a prisoner, which applies to extrajudicial confessions, should not necessarily be applied to a confession made in court; and ’were this not true, it would not follow that it should be applied where intelligent and shrewd business men, ilanked by lawyers among the best in the state, have speculated for weeks as to the best thing to do, have consulted with the prosebutor, and after turning the matter over in every possible light, conclude to plead guilty and throw themselves on the mercy of the court,</p>

<p>FIRE RESULTING FROM NEGLIGENT OPERATION OF RAILWAY.</p> <p>Fire Insurance — Pleading—Where Fire Resulted from Negligence of Railway — And Lo&s has been Paid by Insurance Company — Intervening Cause — Contributory Negligence of Intervenor — Concurrent Acts of Negligence — Averment that Railway has Paid Excess of Loss over Insurance.</p> <p>1. In an action by an insurance company against a railroad company for recovery of the amount paid on a policy of insurance covering a building destroyed by fire through the alleged negligence of the railroad company, an averment that the owner of the property had complied with all the conditions of the insurance contract is a proper averment.</p> <p>2. Where two acts of negligence are alleged and these unite in causing an injury, it is not a question of proximate or remote cause, but of a concurrence of two causes, for both of which the defendant may be responsible, and the one injured may allege and prove both if he can.</p> <p>3. The pleading of facts is not open to objection in an action for negligence, where the pleader is thereby relieved from the necessity of pleading conclusions as to the concurrence of negligence or non-concurrence of contributory negligence.</p>

<p>FIRE INSURANCE AND THE ANTI-TRUST LAW.</p> <p>Monopoly — Restrictions and Agreements by Fire Insurance Agents — In Contravention of the Valentine Anti-trust Law-^-Words and Phrases — Criminal Law.</p> <p>The provisions of the Valentine Anti-trust law include the business of fire insurance, and an indictment which charges the defendants with unlawfully conspiring, combining and agreeing together to restrict the “trade, business and commerce of insuring property,” and to fix and increase the premiums therefor and prevent competition, charges a crime under the laws of Ohio.</p>

<p>OWNERSHIP OF FUNDS BEQUEATHED FOR. THE BENEFIT OF COUNTY INFIRMARY INMATES.</p> <p>Criminal Law — Allegations as to Ownership — Under a Charge of Embezzlement — Devise to Directors of County Infirmary — For Benefit of Inmates of Infirmary.</p> <p>Funds were bequeathed as follows, to-wit: “All the rest and residue of . my estate, I give, devise and bequeath to the directors in trust and their successors in office of the Lorain County Infirmary, to be used by them to the best interests in caring for the poor and inmates of said infirmary.”</p> <p>Held: That said funds did not become the property of Lorain county, and that an indictment which set forth the above bequest, and' charged the infirmary directors with embezzlement of said funds as funds of Lorain county, did not properly allege ownership of the property, and that a demurrer to such indictment should be sustained.</p>

<p>PROSECUTION OF JUNK DEALERS.</p> <p>Constitutional Law — Provisions of Section 4413 — Not Unreasonable or Invalid — Regulaton of Second Sand Goods Dealers• — Discretion of Court in the Matter of Sentence.</p> <p>1. The provisions of Section 4413 for the regulation of dealers in second-hand articles and junk dealers, requiring that certain goods purchased by them shall be kept on hand for thirty days, is not an unreasonable requirement and does not render the act unconstitutional on the ground that it is unreasonable.</p> <p>2. It is not open to a resident of the city, not accused under this act of failure to report to the mayor, to. complain that the provision oí the act requiring a report to the mayor is unconstitutional for lack of uniform operation, inasmuch as a dealer outside of the city limits could not be required to comply with this provision.</p> <p>3. A fine of $50 for failure to conform with the requirement as to the keeping on hand of goods for thirty days is not excessive or an abuse of discretion on the part of the trial court.</p>

<p>THE RIGHT OF PUBLIC TRIAL.</p> <p>Public Trial — Rules of Court in Violation of Right of — Errors not Prejudicial — But Involving a Denial of Constitutional Rights — Expert Evidence as to the Q-ame of “Craps" — Omission of Names of Africans from Jury Wheel.</p> <p>1. A rule of court which excludes from the court room all of the world, except officers of the court, witnesses, certain relatives, newspaper men, and those having special permission from the court to enter, is in violation of the guarantee of a public trial found in Section 10 of Article I of the state Constitution.</p> <p>2. The rule that errors occurring during a trial shall not be considered as ground for reversal of the resulting judgment, unless they are of such a character as to be material or prejudicial, is not applicable to an error involving the deprivation of a constitutional right; the law presumes in such a case that an injury has been suffered.</p> <p>3. Expert evidence may properly be admitted in a criminal trial, where the charge is gambling by means of the game known as “craps.”</p> <p>4. However lightly and devoid of merit a court may regard a motion to set aside a verdict on the ground that the jury commissioners excluded from the wheel the names of all persons of the African race, such exclusion where made solely on account of race or color being a denial of the equal protection of the laws as vouchsafed in the Fourteenth Amendment, it is the duty of such court to grant a hearing on such motion.</p>

<p>EFFECT OF AMICABLE PARTITION ON INCHOATE DOWER.</p> <p>Go-Tenancy and Partition — Mortgage—Yendor’s Lien in Amicable Partition — Effect of Amicable Partition on Inchoate Dower of Wife of a Tenant in Common — Estates Ancestral and by Purchase — ■ Priority.</p> <p>In a case of amicable partition by mutual conveyances of unequal purparts, a mortgage given by one tenant in common (his wife not joining) to another to equalize the allotments, is subordinate to the wife’s inchoate right of dower in the undivided interest acquired by descent of such mortgagor in the purpart so allotted to him, but is superior to dower in the share acquired by purchase from the mortgagee.</p>

<p>BENEFITS FROM STREET IMPROVEMENT.</p> <p>Streets — Improvement of — Benefits—Validity of Assessment — Proof Necessary to Secure Reduction of — Estoppel Against Grantees— Does Not Arise, When.</p> <p>1. In an action for the reduction of a street assessment on the ground of lack of benefits, testimony and estimates as to the value of the abutting property before and after the improvement which leave the court in doubt will be resolved against the plaintiff.</p> <p>2. Estoppel against contesting the validity of an assessment will not be inferred in the ease of a grantee who purchased subsequent to the levying of the assessment, unless the language of the deed fairly warrants the conclusion that the grantee reserved from the purchase money an amount sufficient to satisfy the lien.</p> <p>3. The expressions in the deed with reference to payment of an assessment will be construed in favor of the grantee where of an indefinite character, or where the agreement to pay an assessment is found in a separate clause and not as a part of the purchase price; nor does the language of the warranty that the premises are free and clear of all incumbrances except certain unpaid street assessments impose upon the grantee per se the obligation to pay such assessments.</p>

<p>EFFECT OF ANNEXATION OF “ DRY ” TERRITORY.</p> <p>Liquor Laws — Status of "Dry" Territory not Affected by Annexation to a "Wet" Municipality — Brannock Lato Election not Available in Beal Law Territory — Local Option in its Legal and Practical Aspects — Is Above Municipal Regulation, a Creature of the State and the Will of the Voters.</p> <p>1. When an election has been held in a municipal corporation, under the provisions of the local option law known as the Beal Law, which resulted in favor of the prohibition of the liquor traffic therein, such prohibition continues in force, notwithstanding an annexation of the entire territory composing such municipality to another corporation in which no election has been held under the provisions of said law.</p> <p>2. An election held under the residence district local option law known as the Brannock Law, within a part of the territory which formerly constituted said municipal corporation in which said Beal Law election was held, and within two years of the date of such Beal Law election, is invalid.</p>

<p>PLEADING IN ACTION TO RECOVER ON ILLEGAL BRIDGE CONTRACT.</p> <p>Bridge Contracts — Pleading—Certificate under Burns Lato — Averment that County Commissioners Confederated with Bridge Company-Failure to File Plans and Specifications — Sections 795,. 796, 798 and 1277.</p> <p>1. In an action brought by a prosecuting attorney, under Section 1277, to recover back money paid out on an illegal county bridge contract, a motion to strike out will not lie as to an averment that there was no certificate of the county auditor as required by the Burns law that the money required for payment for this bridge was in the bridge fund, or levied, or in process of collection.</p> <p>2. Nor will such a motion lie as to the averment that the county commissioners combined and confederated with the defendant bridge company in making the contract and stipulating a price to be paid tor the bridge which was grossly and unlawfully in excess of the true and reasonable value thereof as the county commissioners and the defendants well knew.</p> <p>3. But an averment concerning the failure of the commissioners to comply with Section 795, relating to the substructure of bridges, will be stricken out where the action is for recovery of money paid for the superstructure only.</p> <p>i. It was not the intention of the Legislature that bridges should be contracted for and constructed without any plans and specifications being prepared therefor; and an averment that a contract was entered into without proposals being solicited for a structure in accordance with any plans whatever, and that no plans were kept on file with the county auditor, is therefore good against a motion to strike out.</p>

<p>PROPERTY INTERESTS IN DIVORCE ACTIONS.</p> <p>Divorce and Alimony — Action for Lis Pendens, When — Conveyance of Property by the Husband before Service of Summons but with Knowledge of the Filing of the Suit — Title—Fraud—Constructive Notice — Grantee in a Fraudulent Conveyance will be Protected to the Extent of Money Actually Paid, When.</p> <p>Where a wife brought suit for divorce and alimony against her husband, describing a house and lot, occupied by her and owned in common by her and her husband, and asking that the same .be set off to her as alimony, and caused proper process to issue in said suit, which was returned “not found,” and the husband within a short time after the issuing of said process and just before second process was issued, but having knowledge that his wife had brought suit against him for divorce, conveyed his interest in said property to a woman with whom he was boarding, for an inadequate consideration, under circumstances which warrant the court in finding said conveyance to be fraudulent, and very soon after said transfer, proper service was made upon the husband, and the wife was granted a divorce and granted said property as alimony — Held: That,.said case was “pending” so that upon decree setting aside said transfer, the decree in the divorce suit transferring the property to the wife, operated to convey title to the wife as against the husband and his grantee and a subsequent purchaser who acquired title with constructive notice and without value.</p>

<p>COUNTY COMMISSIONERS AND TOWNSHIP SCHOOLS.</p> <p>Schools — Authority of Township Boards of Education — When the County Commissioners may Intervene — Judicial and Ministerial Duties of Township Boards — Centralized Schools — Pleading■—Injunction — Sections 3921, 3922, 3969 and 4007.</p> <p>1. A petition by a township board of education states a cause of action when it alleges that the defendants have unlawfully taken possession of the school houses in certain sub-districts, and have unlawfully assumed authority to teach school therein, and have interfered with the plaintiff in its control of the schools in said sub-districts.</p> <p>2. Where a township board of education voluntarily or willfully fails to perform any of its ministerial duties, the county commissioners may step in and perform such duties as authoritatively and in the same manner as though it was a board of education which was acting.</p> <p>3. But with reference to the judicial duties of a township board, such as the suspending at its discretion of the schools in certain sub-districts, or the abolishing of the sub-districts and the providing in either instance for the conveyance of the pupils to other public schools or to one or more centralized schools, the county commissioners are without authority to interfere or to reverse orders made by the township board in that behalf; and the fact that the action of the township board was contrary to the will of the people and against their protest does not change the rights of the board in that regard.</p> <p>4. Where county commissioners have wrongfully interfered in such a matter, and the illegality of their action does not appear on the-face of the record of their proceedings, but is shown by evidence contrary to what appears on the record, injunction is the proper remedy for the township board.</p>

<p>APPEALS BY GUARDIANS.</p> <p>(Guardian — Appointment of, without Jurisdiction — Appeal from Order of Removal — (Guardian not a Party in a Fiduciary Capacity — Must File Bond.</p> <p>A guardian who is removed by the probate court because the court had no jurisdiction to appoint him, can not perfect an appeal to the common pleas court from such order of removal, by merely giving written notice to the probate court of his intention to appeal. In such a case he is not “a party in a fiduciary capacity,” and does not “appeal in the interest of the trust,” and hence is required by Section G408, Revised Statutes, to file a bond in order to effect an ' appeal.</p>

<p>CONTRACTS WITH TAX INQUISITORS AS TO FUTURE OMISSIONS OF PROPERTY.</p> <p>Tax Inquisitors — 'Validity of Contract with — Relating to Future Omissions of Property — Duties of County Auditor — Construction of Sections 1343-1 to 1343-4- — -Collusion of Officers — Public Policy.</p> <p>1. The sections of the statutes relating to the placing on the tax duplicate of property improperly omitted therefrom, and the employment of tax inquisitors, etc., do not require of the county auditor as a part of the duties of his office that he shall make search for such omissions; and a necessity existed for the employment of a tax inquisitor for the performance of that work, at the time the contract in issue in this case was entered into, in September, 1902</p> <p>2. The phrase “any omissions' of property,” found in Section 1343-1 was intended to mean all omissions, past, present and future, anc the claim that this law does not authorize contracts with tax inquisitors which have a prospective 'Operation is not tenable.</p>

<p>EQUITIES BETWEEN SURETIES.</p> <p>Contribution — Settlement Between Sureties■ — Where the Indebtedness of One is Applied, For Relief of the Sureties — Indemnity of One Surety Inures to the Joint Benefit of Both.</p> <p>One wlio, being surety with, another for an insolvent decedent, and at the same time debtor to said decedent’s estate, succeeds in having the whole amount of his debt to the estate applied to the reduction of the decedent’s debt upon which he is one of the sureties, and then pays the balance’ thereof in money, can not compel contribution of his co-surety for more than a moiety of the amount actually paid in money; whatever advantage he gains by the application of his own debt inures to the benefit of his co-surety.</p>

<p>BOUNDARY LINES BETWEEN CITY LOTS.</p> <p>Ejectment — Ancl Adverse Possession — Boundary Lines Where the Original Monuments have Disappeared — Value of Ancient Fences as Evidence — Recent Surveys from an Assumed Starting Point — Presumption as to Different Landmarks and Lines — Constructive Possession — Admission hy Holder that it loas not Adverse — Notice of Adverse Claim.</p> <p>1. In a controversy over the location of a boundary line between city lots, the original monument having disappeared, old boundary fences are by far the better evidence of where the lot lines actually are.</p> <p>2. The presumption favoring the fence as establishing said line is not overcome by the fact that upon a resurvey based upon no original monument another line is established.</p> <p>3. Where the description shows the boundary line to be a straight line, it is established by the wall of a permanent building standing for the statutory period, even though the building does not extend the entire length of the boundary. The occupancy was such as to give notice of the extent of the adverse claim.</p>

<p>CONSTITUTIONALITY OF THE COUNTY DEPOSITORY ACT.</p> <p>Constitutional Law — Discrimination Against Persons and in Favor of Corporations — Uniform Operation — Corporate Banks Preferred Over Private Banks — When a Bank is “Situated” in the County— “Inalienable Rights” and “Equal Protection of the Laws”- — Relate to Private, Personal, Civil or Political Rights of Natural Persons Only.</p> <p>1. The Ohio act providing for county depositories (98 O. L., 274) is not in contravention of Sections 1 or 2 of Article I of the state Constitution, or of the Fourteenth Amendment of the Constitution of the United States, by reason of the fact that it discriminates against natural persons and in favor of banks and trust companies.</p> <p>2. Nor does this act fail of uniform operation throughout the state by reason of the provision that in counties where there are located banks or trust companies incorporated under the laws of the state of Ohio or of the United States, such banks only shall be regarded as eligible to bid for and receive the county funds, but in counties where there are no such banks located, private banks may be awarded these funds.</p> <p>3. The Cleveland Trust Company, having its situs for taxation, executive management and business administration in Cuyahoga county, can not by reason of the fact that it maintains a branch bank in Summit county be regarded as “situated” in Summit county within the meaning of this act, nor is the manifest purpose of the act to keep the public funds of a particular county within the natural and usual channels of trade in that county, subserved by an award of these funds to a bank situated in another part of the state.</p>

<p>MUNICIPAL FRONTAGE ON STREET RAILWAY ROUTES.</p> <p>Consents — Of Abutting Owners to the Building of a Street Railway— Municipality as an Abutting Owner — Jurisdiction of Council— Section 2502 — Contemporaneous Construction and Acquiescence Therein — Limitation of General Public in Control of Street.</p> <p>The consent of a municipality, legally granted, to the construction of a street railway along a street upon which the municipality is an abutting owner, may be counted in ascertaining whether a majority of the frontage has consented to the granting of the franchise.</p>

<p>TESTIMONY OF COMMON LAW WIFE AGAINST HUSBAND ON TRIAL FOR. BIGAMY.</p> <p>Criminal Law — Husband on Trial for Bigamy■ — Testimony of Common Law Wife Incompetent — Testimony Establishing a Common Law Marriage.</p> <p>1. The common law rule forbidding a husband or wife from testifying against each other has not been modified in Ohio to the extent of permitting a first wife from testifying against her hhsband who has married another woman and is on trial for bigamy.</p> <p>2. The refusal of the trial judge to permit the first wife to testify in such a trial, on the ground that her testimony is incompetent on account of her relationship to the defendant, will not be regarded as prejudicial to the defendant, where accompanied by an explicit statement by the court to the jury that no fact with reference to the first marriage is thereby determined by the court.</p> <p>3. Where a man and woman agree together that they will take each other for husband and wife, by words in the present tense, and that they will thenceforth occupy the relation of husband and wife during their joint lives, and this agreement is followed by cohabitation as husband and wife, and the woman is introduced by the husband as his wife, and the man is subsequently married in the usual form to another woman, there is a sufficient predicate for a conviction of bigamy in this state.</p>

<p>DESTRUCTION OF UNWHOLESOME MILK LEGAL.</p> <p>Board of Health — Powers of, With Reference to Destruction of Unwholesome Milk — Ordinance Regulating Temperature of Milk on Sale Legal — Nuisances—Things Which are Such by Nature, and Which ar.e Made Such by Manner of Use — Taking Property Without Due Process of Law.</p> <p>1. A resolution of a board of health providing that “all milk, the temperature of which shall be found' on examination or test to be above fifty degrees Fahrenheit, shall be confiscated, forfeited, and immediately destroyed by or under the direction of a health officer or milk inspector,” is not unconstitutional.</p> <p>2. There are some things which are public nuisances by nature. Such are things which are harmful to the public health, as unwholesome food. An ordinance providing for the immediate destruction of such a nuisance by an official is not in contravention of that constitutional guaranty which provides that no man’s property may be taken without due process of law. When the thing itself is not a nuisance, as a house or animal, for instance; but the way in which it is used is a nuisance, then the thing can not be destroyed; its illegal use must be punished.</p>

<p>DISTORTION OF THE SCINTILLA R.ULE.</p> <p>Trial — Duty of Ju>lge to Direct a Verdict, When — Evidence and Proof Distinguished — Scintilla Rule as Generally Understood and Applied . a Misnomer.</p> <p>1. There is no place in our jurisprudence for the scintilla rule as that rule is commonly understood and generally applied.</p> <p>2. When, at the close of plaintiff’s evidence, defendant moves the court to direct a verdict, it is the right and duty of the judge to weigh the evidence in order to determine its probative force and effect. If the probative effect of the evidence be such that reasonable minds might reach different conclusions from it, the motion should be refused. But if the only rational view of the evidence is that it has not proved anything — if fair-minded men could not differ about it — the motion should be granted.</p>

<p>THE PLEA OF CONTRIBUTORY NEGLIGENCE.</p> <p>Pleading — Contributory Negligence as a Defense — Acts which Constitute, Must be Set Out — Motion to Strike Out.</p> <p>Wliere a defendant pleads contributory negligence in an action for damages on account of negligence, he may be required to set out the acts of negligence on the part of the plaintiff upon which he relies.</p>

<p>PROCEEDINGS RELATING TO COUNTY DITCHES.</p> <p>Ditches — Several Joined in One Improvement — Questions Relating to Bond for Costs — Injunction will not Lie Against Improvement, When — notice—Vieio by Commissioners — Benefits—Injury to Lands — Character of Improvement — Sections 4448, 4451, 4452 and 4491.</p> <p>1. Water-courses which empty one into another and that one into a a third are not separate water-courses within the meaning of the statutes relating to the construction or improvement of public ditches, and may be joined in one improvement.</p> <p>2. Petitioners for the improvement of a public ditch may become sureties on the bond which it is required shall be filed- with the petition for payment of costs; failure of the county auditor to endorse his approval on such a bond is immaterial, where a bond properly executed was filed with him for approval, and he identifies it as the bond then on file, and testifies that he did approve it.</p> <p>3. Section 4452 does not contemplate that the commissioners shall actually set foot on the whole line of the ditch, but that they will at the beginning of the improvement hear the complaints of the persons affected, and thereafter view the line of the ditch in such a manner that they will understand the situation, and can determine the necessity of the improvement, and make a proper apportionment of the costs.</p> <p>4. In a proceeding for a ditch improvement, an injunction will not lie because of errors apparent on the face of the record, such as a defect in the bond filed with the petition; nor where there is no evidence of collusion or fraud on the part of the commissioners; nor because of injury to the lands through which the ditch passes; nor on allegations that the improvement is of an unsatisfactory character, or that there is no necessity for it, or that no benefit will result to the lands through which it passes.</p>

<p>VOLUNTARY ASSOCIATIONS OF BUSINESS CONCERNS.</p> <p>Organizations Composed of Corporations, Firms ancl Indivduals— • Not for Profit but for Mutual Protection — Delegated Powers not Surrendered, When — Attributes of Co-Partnership• — Things not Ultra Vires — Mutual Agency — Executed Contracts — Member of Organization Liable for Assessment to Pay Running Expenses.</p> <p>1. Organizations may have the attributes of a co-partnership, and as against creditors those so associated are generally regarded as partners under the doctrine of estoppel; but as between parties there can be no partnership unless one was intended.</p> <p>2. A voluntary association composed of corporations, firms and individuals, formed not for profit,, but for the “mutual protection of its members and their employes by a uniform basis of just and equitable dealings between them and for the investigation and amicable adjustment of their difficulties,” is not as between such members a partnership. Nor is the accomplishment of its objects, as indicated by its preamble, such as would apparently amount to a surrender or delegation of the powers of the board of directors of the corporate members thereof. An organization formed to carry out such objects in good faith is not an illegal enterprise, in which corporations can not join; and an assessment to pay its running expenses levied by agreement upon its members in the ratio of the number of operatives employed by each, is valid.</p>

<p>GUARDIAN FOR. CHILD OF DIVORCED COUPLE.</p> <p>Guardian and Ward — Jurisdiction—Necessity for Appointment of Guardian — Final Order — Parent and Child — Order Giving Custody of Child to Divorced Mother — Annulled by Death of the Mother.</p> <p>1. An order of the prohate court appointing a stranger guardian of a minor child is a final .order affecting a substantial right of its father and is reviewable on error.</p> <p>2. The father is by law and hature the guardian of his minor child, and the necessity for the appointment of a guardian does not arise except for cause.</p> <p>3. Where cause exists for the appointment of a guardian for a minor child, it must he shown that the father is an unsuitable person before another can be appointed.</p>

<p>EFFECT OF BANKRUPTCY ON LIABILITY OF A SURETY ON APPEAL BOND.</p> <p>Judgment — Definition of — Surety on Appeal Bond — Released by Discharge of Appellant in Bankruptcy — Section 16 of the Bankruptcy Act — Relating to Liability of Co-debtors, Guarantors and Sureties.</p> <p>1. A judgment is a final determination of the rights of the parties in action. It affirms that a legal duty or liability does or does not exist and can not be granted for any other purpose.</p> <p>2. Special or qualified judgments, for a particular purpose, are unknown in Ohio.</p> <p>3. A discharge in bankruptcy, properly plead by a defendant, is an absolute bar to judgment against him, and therefore to a right of action on an appeal bond, where judgment is a condition precedent.</p>

<p>WHAT CONSTITUTES TRAFFICKING IN INTOXICATING LIQUOR..</p> <p>Liquor Laws — Tax Assessed under the Aiken Law — Evidence as to Sales —Seller Engaged in the Business, When — Burden of Proof — Distraint for Non-payment — Injunction—98 O. L., 99.</p> <p>1. Where a liquor tax has been regularly, entered by the county auditor, the duplicate becomes by operation of the statute prima facie evidence as to the amount and validity of such tax, and the burden is upon the one so assessed of proving that he was not engaged in the liquor business at the time covered by the assessment.</p> <p>2. A traffic in intoxicating liquors may be carried on without maintaining a bar or keeping a stock of liquor constantly on hand; and one formerly engaged in. the business, but who has ostensibly retired therefrom, will be held to be still so engaged, when the evidence shows that four bottles of beer, which were obtained from a saloon at. fifteen cents a bottle, were sold for one dollar a bottle at the same place where the seller formerly carried on the business; and a levy on goods and chattels in satisfaction of the tax assessed against such business will be sustained.</p> <p>3. The fact that no demand was made at the seller’s place of business for the payment of said tax becomes immaterial after the parties and the chattels levied on are before the court for a determination of the issues involved.</p> <p>4. Penalties are assessed by way of punishment and can not be refunded; and the minimum amount collectible in this case is $392.30, plus four per cent, collection fees and costs by distress and sale.</p>

<p>PAROL LEASES AND THE STATUTE OF FRAUDS.</p> <p>Landlord and Tenant — Forcible Entry and Detainer — Evidence as to Existence of Parol Lease Admissible, When — Possession—Sections 4106, 4112 and 4198.</p> <p>It being tbe settled law of this state that a verbal lease for a term not exceeding three years, when accompanied by possession, is taken out of the statute of frauds, it follows that the duration and terms of the parol lease may be shown by evidence of the verbal agreement between the parties.</p>

<p>ACTION BASED ON FICTITIOUS ENTRIES.</p> <p>Banks and Banking — Credit Induced by Fictitious Entries — Dividend Paid by a Railway Association on the Faith of a False Credit— Actions — Receivers—Fraud.</p> <p>L, as cashier of a bank and treasurer of a building association, credited himself with $10,000 on the books of the bank and entered a credit for a like amount on the pass-book of the building association. On the faith of this fictitious credit the building association declared and paid a dividend to its stockholders. Subsequently receivers were appointed for both the bank and the building association, and the receiver of the building association sued the receiver of the bank on an account which included this fraudulent credit.</p> <p>Held: That no cause of action existed for the amount represented by the fictitious entry, and as to that item the petition should be dismissed.</p>

<p>AUTHORITY TO COMPEL USE OF WATER. METERS.</p> <p>Municipal Corporations — Regulation of Use of Water — Confided in Council Rather than Board of Public Service — Ordinance Providing ivhen Meters Shall be Installed — Injunction by an Objecting Owner.</p> <p>1. Council is empowered to fix rules and regulations for the use of water by consumers, and such rules having been provided, it is the duty of the board of, public service to apply them.</p> <p>2. But where council has by ordinance authorized the board of public service to meter buildings other than residences at its discretion, and -has further declared that “residences shall be metered only on request of the consumer, provided that in case of waste or other improper or unauthorized use of water of which satisfactory proof has been furnished to the meter department, a meter may be set without the consent of the consumer,” an injunction will lie on petition of the owner of a residence against the' installation of a meter, in the absence of any evidence of waste or other improper use of water.</p>

<p>HOLDINGS WITH REFERENCE TO BALLOTS IMPROPERLY MARKED.</p> <p>Infirmary Director — Contested Election of — Sow Appeal is Perfected ■ Under Section 2997 — Parol Evidence as to Ballots not Counted— Folding and Marhing the Tichet — Markings which Might Identify the Ballot Bender it Void — Irregular Marhing Which does not* Bender the Ballot Void.</p> <p>1. In an action to contest an election where the election officers are functus officio, the fact that none of the ballots in dispute were counted by the election officers may be established by parol evidence.</p> <p>2. A ballot is not voted until it is deposited in the ballot box, and hence when a ballot was not deposited in the box because improperly folded, it can not be counted.</p> <p>3. A ballot which contains a cross in the circle over the Democratic ticket, but is irregular in that it contains a cross before the names of both the Democratic and Republican candidates for judge, should be counted for the Democratic candidates on the ticket other than judge.</p> <p>4. A ballot that is irregular in that it contains a cross in the circles over both the Democratic and Socialistic tickets, should be counted for the Democratic candidates on the county ticket, where there are no candidates for county offices on the Socialistic ticket.</p> <p>5. A ballot with a straight mark or a circle within one of the circles over the several tickets does not indicate an honest desire on the part of the voter to comply with the statute in designating the ticket he desires- to vote, and such a ballot should be rejected; but where the mark in the circle at the head of a ticket shows only such an irregularity as might result from an awkward use of the pencil, the ballot should be counted.</p> <p>G. Where all the tickets on a ballot except one are marked off with long cross-marks extending from the top of the ticket to the bottom, and there is no cross in the circle over the ticket which is not thus erased and no crosses opposite the names of the candidates on that ticket, the ballot should be rejected for failure on the part of the voter to exhibit any intention to comply with the statute in the marking of his ballot,</p> <p>7. A mutilated ballot should be rejected, for the reason that it would afford a sure means of identifying the ballot, and there is a provision for supplying a voter with a second ballot if the first is spoiled in the marking.</p> <p>S. In a contested election case, where the term of office has begun before the case is brought to trial, a finding in favor of the contestant should be accompanied by a judgment of ouster and of induction of the contestant into office.</p>

<p>MODE OF USE OF STREETS BY TELEPHONE COMPANY.</p> <p>Telephone Poles and Wires. — Use of Streets for Erection of — Authority of Probate Court with Reference to Mode of — Duration of Telephone Franchise — Extraordinary Uses of Street — Such as for Moving Buildings — Limitations on Power of Probate Court.</p> <p>1. A telephone company obtains its right to the use of the streets from the Legislature, and the function of the probate court includes neither the length nor extent of such use, but is limited strictly to the mode of use.</p> <p>2. The moving of a building across or through a public street, in such a maimer as may be prescribed or permitted by ordinance enacted by council, is a lawful, but not a public use of the street, and involves a privilege with reference to which the probate court has no duty to perform in fixing the mode of use of the streets by a telephone company.</p>

<p>DIVORCED WOMAN NOT ENTITLED TO HOMESTEAD EXEMPTION.</p> <p>Homestead — Insolvent Divorced Woman — Not Entitled to Exemption — • Section 5435 — Varying Punctuation of — Grass Widow — Not a “~\Vidow” within Contemplation of the Statute — Words and Phrases.</p> <p>A divorced woman is not a “widow” within contemplation of the statute allowing homestead exemption to insolvent debtors with families or other dependents.</p>

<p>RENT FOR. PREMISES HELD BY A DEFAULTING PURCHASER.</p> <p>Landlord and Tenant — Rescission of Contract for Sale and Purchase— ' Forfeiture by Service of Notice — Purchaser in Possession — Waiver of Trespass — Rent—Attachment for Necessaries.</p> <p>A defaulting purchaser of land who is in possession is a trespasser under claim of title,, and the seller can not effect a forfeiture of the contract of purchase by mere service of notice and thereafter treat the purchaser as a tenant liable for rent, unless assent on his part to be so regarded can be shown.</p>

<p>ASSESSMENTS FOR SEWERS.</p> <p>Bewers — Assessment for — Local Drainage — Expense of Construction Assessed, Soto — Benefits—Notice—Average Depth of Lots — Repeal of Statute before Assessing Ordinance was Passed — Injunction.</p> <p>1. Where the amount of a sewer assessment does not exceed the special benefits to the land, the assessment is not rendered invalid because levied in terms by the abutting foot.</p> <p>2. An assessment for a sewer will be regarded as having been made with reference to benefits, as required by Section 53 of the municipal code, when the proceedings with reference thereto are all regular, and the property owner enters no complaint until he seeks to enjoin collection of the assessment and there is no showing of fraud, or evidence that the assessment as laid unquestionably exceeds the special benefits to the property.</p> <p>3. A property owner who is provided with a drain leading to a cesspool on his own property is n*ot, on the ground that he is already provided with local drainage, exempt from assessment for a sewer laid in the street, having a proper outlet, and built in conformity with the requirements of the statute.</p> <p>4. An abutting property owner is not entitled to written notice of the passage of an ordinance providing for the construction of a sewer.</p> <p>5. The repeal of a statute relating to sewer improvements after proceedings for the construction of a sewer have been begun, but before the passage of the assessing ordinance, does not render the assessment invalid.</p>

<p>TRANSPORTATION OF DEAD ANIMALS THROUGH A MUNICIPALITY.</p> <p>Monopoly — Authority of Municipality to Grant — Police■ Powers — Regulations for the Protection of the Public Health — Presumption— Injunction — Section 1536-100 (3) and Section 1536-100 (25).</p> <p>1. In an action to enjoin a municipality from interfering with property rights, the presumption is that the defendant officials are acting within the scope of their authority.</p> <p>2. A municipality has the power to grant a monopoly for transporting and utilizing dead animals which have not been slaughtered for food;' and a demurrer to a petition for an injunction against interference with rights under such a grant will not lie where the petition alleges that carcasses which have become decayed, putrid or offensive are not transported or handled, and that such transportation and handling has at all times complied with the rules- and regulations of the board of health.</p>