Volume 6 — Ohio Nisi Prius Reports, New Series

<p>ATTACHMENT AGAINST FOREIGN CORPORATIONS.</p> <p>Attachment — Lies Against a Foreign Corporation, When — Ancilliary Character of the Proceeding — Necessary Averments of the Petition and the Affidavit — Renders New Service of Summons Necessary— Compliance with Sections llfic and lJ/Sd — Pleading—Non-Residance —Strict Construction of Sections 5521 .and 5522.</p> <p>1. A foreign corporation which has complied with the provisions of Sections 148c and 148$, with reference to ■ the filing of a statement and procuring of a certificate from the secretary-of state, is not subject to attachment solely, on the ground that it is a foreign corporation. .</p> <p>2. In an action in attachment against a foreign corporation, the mere allegation in - the affidavit for attachment that the defendant is a non-resident of the state is insufficient, unless supplemented by j allegations in the petition that the defendant is a foreign corporation and has failed to.comply with the requirements of Sections .148c and 148$;</p> <p>3. It is not permissible to combine the affidavit and the petition for the purpose of deriving from the two the averments required to satisfy the provisions of Section 5522 as to attachment.</p> <p>4. While it is probable that under the statute permitting amendments of pleadings, etc., an amendment to an affidavit in attachment may be allowed, a new service of summons would become necessary in such a case before jurisdiction could attach.</p>

Heard on demurrer to the petition. ■ On May 20, 1906, the defendant company ran an excursion from Cleveland, Ohio, to Columbus, Ohio, and return. For this excursion tickets were sold at the special and reduced rate of two dollars for the round trip.

<p>REGULATION OF THE SMOKE NUISANCE.</p> <p>Municipal Corporations — Without Authority to Declare What is a Pub- ■ lie Nuisance — Nuisances per se — Whether a Thing Really is, or has only been Declared to be, a Nuisance, Distinguished — Ordinance for the Regulation of the Emission of Smolce — Ultra Vires and Invalid, When — Whether Smoke Actually Causes Injury a Question for Court and Jury, and not for a Legislative Body — Strict Construction of Municipal Powers — Penal Offenses — Section 1536-100.</p> <p>1. The failure of the Legislature to include former Section 1692/ (1) in the recent amendment of the municipal code, must be construed as withdrawing from municipal • corporations the authority “to determine what shall be a nuisance and to abate the same.”</p> <p>2. In view thereof, and in the absence of powers in municipal corporations other than those expressly granted by statute, or that may be implied as essential to carry into effect those which are expressly granted, and the strictness with which powers delegated to municipal corporations are construed, it must follow that Section 2 of the ordinance passed by the city of Cincinnati, April 12, 1907, for the regulation of the emission of smoke within the limits of said city, and declaring that smoke of a certain density shall be deemed a nuisance per se, is ultra vires and void.</p> <p>3. Neither does the provision of'Section 1536-100, “to regulate and compel the consumption of smoke' and prevent injury and annoyance? therefrom, authorize the punishment of the offense described in said ordinance. Such an ordinance would be penal in its nature, and must be strictly construed in favor of those charged with its violation; and Section 3 of said ordinance is therefore invalid.</p> <p>4. The Council of the City of Cincinnati having no power under existing law to declare smoke of the density described in said ordinance to be a nuisance per 'se, its attempt to declare such smoke to be a nuisance without any evidence as to its being so under the statutes or at common law, is a usurpation by a legislative body of the functions which properly belong to the courts.</p> <p>5. Section 4 of said ordinance, providing for the creation of a smoke inspector's department consisting of inspectors and prescribing their duties and fixing their compensation and terms of office, is of itself, after the elimination of the clause providing for the prosecution of offenders, sufficient to constitute a valid ordinance.</p>

<p>WAYS PUBLIC AND PRIVATE.</p> <p>Streets and Alleys — Easement for a Private Way — Does not Become a Public way Except by Dedication — Acquirement of Title in Easement by Adverse Possession by One Go-Owner as Against other Go-Owners — Injunction—Encroachment on a Public Way —Pleading—Amendment.</p> <p>1. A defendant can not object to tbe granting of leave to tbe plaintiff to file an amendment which will make the petition conform with evidence which the defendant has himself introduced, notwithstanding a vital issue is thereby raised for the first time.</p> <p>2. A recorded plat of the division of a farm into a number of tracts, upon which is shown a narrow way that “is for the common use of all persons interested now or who may hereinafter be interested in said divisions or parts thereof,” creates an easement only; and said way doeá not become a public way except by a dedication and acceptance or the acquirement of title therein by prescription; nor does the use of such a way by the public after annexation to a municipality create in the municipality any title or responsibility for such way.</p>

<p>COUNTY DITCH PARTLY WITHIN VILLAGE.</p> <p>Tillages — Solicitor of, can not Enjoin Misapplication of County Funds —Neither can Tax-payer of Tillage Maintain such an Action — Improvement of County Ditch Located Partly within a Tillage — Sections Z/J/88 and —Constitutionality of — Assessments-—Injunction — Municipal Corporations.</p> <p>1. Where the mayor of a village has petitioned for the improvement of a county ditch lying partly within his village, under authority of Section 4483, Revised Statutes, and it is sought to use county funds for that purpose, injunction does not lie upon the suit of the ■ solicitor of the village to prevent misapplication of such funds.</p> <p>2. Nor can such an action be maintained by a tax-payer, whose right to sue in behalf of his municipality is no greater by the terms of Section 1777 than that of the solicitor.</p> <p>3. Sections 4483 and 4484, providing for the improvement of ditches in villages, is not unconstitutional because wanting in “due process” in not providing for a jury to assess compensation, for which provision is made in other sections of the same chapter; or in not limiting the power of taxation and assessment, inasmuch as the constitutional limitation applies to cities and villages and not to counties.</p>

<p>TAXATION UNDER WILLIS LAW OF COMPANY OWNING OHIO RIVER BRIDGE.</p> <p>Franchise Taxes — Payable Under the Willis Law — -A Corporation becomes a Domestic Corporation of Uoo States, When — State not Concluded by Finding of Taxing Officials — Willis Law Valid and Constitutional — Bridges—Taxation of — Where Carrying Post Roads and Interstate Traffic — Charter Rights — Estoppel—97 O. L„ 3S1.</p> <p>1. A corporation organized by concurrent legislation of two states, receiving from each the same charter, in legal effect is a domestic corporation in each state.</p> <p>2. Such corporation may be assessed upon its franchise for taxes under the Willis law to- the full extent of its subscribed, issued and outstanding capital stock in the same manner as any other domestic corporation.</p> <p>3. A finding by the taxing officers of the state that such company should be treated as a foreign corporation and the acceptance of reports from year to year and assessments thereon by the Secretary of State does not conclude the right of the state to its proper tax.</p> <p>4. The provisions of the Willis law are not in conflict with the Constitution of Ohio or of the Constitution of the United States, and said act is a valid constitutional law.</p>

<p>DISCRETION AS TO STREET IMPROVEMENTS.</p> <p>Streets — Discretion in Selection of Material for Improvement of — Latitude as to Quantities and Construction — Exclusion of a Cheaper Material — Ms to Infringement of the Bevier Patent Covering Wood Bloch — Public Contracts — Specifications—Reasonableness of a Requirement as to Inspection at Plant where Material is Prepared —Injunction—Municipal Corporations — Improvement of Street by County Commissioners.</p> <p>1. It is not lodging too wide a discretion in a board and engineer in charge of a street improvement to reserve the right under the contract “to increase or decrease the quantities or to change, the method of construction in any particular; ” or to provide for a right of inspection, at the contractor’s expense, at the plant where the materials used in the improvement are prepared; or to permit the acceptance of a bid for a material which is more expensive than some other material which was offered.</p> <p>2. The rule which permits a less liberal construction of the claims of patents which are combinations or variations of previously known processes or contrivances than is required in the case of a pioneer patent, relieves the wood paving contemplated in this, case from the claim that it is an infringement of the Bevier patent; and the' specifications are open and broad enough to admit competition from others than the owners of that patent.</p>

<p>EXTENSION OF STREET ACROSS RAILROAD YARD.</p> <p>Eminent Domain — Extension of Street over Railway Right of Way — ■ Injunction Lies to Restrain Municipality — From Proceeding to Assess Compensation, When — Unnecessary Interference toith Company’s Rights — Judgment as to-, not Res Judicata, When — Grounds for Equitable Interference — •Vacation of County Road — Correction of Defects in Attempted Vacation — Public Necessity.</p> <p>1. Where municipal authorities have commenced proceedings in the probate court to have compensation awarded to a railway company on account of the extension of a street over its right of way, the company may maintain a suit in equity to restrain the municipal authorities from further proceeding in the probate court until there has been a determination whether such extension will unnecessarily interfere with the reasonable use of the company’s tracks and other property to be affected.</p> <p>2. Where a municipal corporation has made application in the probate court for an assessment of compensation to a railway company for extending a street across its right of way, and the railway company commences an action in th'e common pleas court to enjoin such proceedings wherein the issues are found for the defendant municipality, and, on appeal, the circuit court finds also against the railway company-upon the grounds that the relief for which it asked could be had by defense in the probate court, and the railway company pursuant thereto files an answer in the probate court setting up such defense and the proceedings are dismissed as to the railway company by the probate court without prejudice to the rights of the municipal authorities to commence a new proceeding for the appropriation of the property of the railway company, which judgment of the probate court was sustained on error by the Supreme Court — Held: On another application of the municipality for an assessment of compensation to the railway company for the same crossing that such judgments are not res judicata of the question of whether such street extension over the railway right of way is an unnecessary'Interference with reasonable use of its property.</p> <p>3. It is only an unnecessary interference that will preclude the municipality from extending a street across the right of way of a railway company. The mere fact that the extension will inconvenience the railway company or interfere with the reasonable use of its property, or subject it to additional expense in transacting business or operating its road constitutes no ground for the interference of a court of equity.</p> <p>4. A municipal corporation can not vacate a county road.</p> <p>5. The extension of a street at grade across the right of way of a railway company in a busy manufacturing section of a city, in the immediate vicinity of which is a residence district fairly well built up and promising to be thickly populated within a few years, which would furnish the most convenient outlet to a great many people, and there existing no other convenient outlet to this district across said railway, within half a mile, and which is a public necessity, and though a dangerous crossing, is not an unnecessary interference with the company’s reasonable use of its property.</p> <p>6. The extension of a street at grade across the right of way of a railway company within 360 feet of the crossing of a county road which has not been legally vacated, and which the public have the right to use in crossing such railway’s right of way, and at a point where the railway company maintains a main track and four sidings, all proposed to be crossed by the new street, and where there are fifteen regular trains daily passing over the main track and a great amount of switching is done daily at this point to and from factories in the vicinity, and as many as sixty to eighty cars daily kept on the sidings and on private switch tracks leading to the factories, is an unnecessary interference with the railway company’s reasonable use of its property.</p> <p>7. Where a municipal corporation has abandoned a county road crossing the right of way of a railway company and attempted to vacate the same and substitute therefor a new highway, and begins proceedings to extend the same across the right of way of the railway company in the near vicinity of the county road, and the same would constitute an unnecessary interference with the reasonable use of the railway property solely because of the county road still subsisting as a legal highway crossing the railroad, the granting of an injunction to the railway company against further proceedings by the municipal corporation to extend said street shall not preclude the municipality, after there has been a legal vacation of such road, from again making application to have compensation assessed to the railway company for such street extension.</p>

<p>COMPENSATION TO COUNTY COMMISSIONERS WHILE ACTING IN OTHER CAPACITIES.</p> <p>County Commissioners — Compensation of when Performing Extra Official Duties — Compensation Provided by Section BSSla for Service as Members of the Board of Equalization — Not Repealed by 97 O. L., 854 — Ex-Officio Duties in Caring for Trust Funds — Compensation Therefor.</p> <p>1. The provision of Section 847 as amended April 23, 1904, for the compensation of county commissioners is to be regarded as in full payment only of services rendered as commissioners, and not for services rendered in other capacities.</p> <p>2. It follows, therefore, that payment it not forbidden to a county commissioner of the compensation provided by Section 2813a for services rendered as a member of the annual board of equalization; nor is it incompetent for him to receive compensation for expenses incurred in caring for a fund created by devise, whereof the county commissioners are ex-officio trustees and the expenses connected therewith are borne by the fund.</p>

<p>GOOD WILL OF A PARTNERSHIP.</p> <p>Partnership — Good Will a Part of the Firm Property — Dissolution— Purchase by One Partner of Interest of the Othei — Old Firm Fíame Abandoned — Ownership of Mail Thereafter Addressed to the Old Firm.</p> <p>Upon tlie dissolution of a firm one of tlie partners purchased from the other all his interest .in the real estate in which the business had been carried on and also his interest in all other partnership property, except the use of the firm name which it was agreed should be abandoned and not thereafter used by either party. Held:</p> <p>1. The good will of the firm went to the continuing partner, and with it the exclusive right to all mail addressed to the old firm.</p> <p>2. Injunction is the proper remedy for the continuing partner, where the retiring partner interferes with his enjoyment and possession of 'mail addressed to the old firm by claiming an interest therein and notifying the postal authorities to withhold it from delivery.</p>

<p>FAILURE OF A BEQUEST.</p> <p>Wills — Bequest Which has Failed Becomes Part of the Residuum, When —Burden of Proof — That a Residuary Clause Carries all of Estate not Otherwise Disposed of — Unexpended Portion of Particular Fund and Residuum of Entire Estate Distinguished.</p> <p>1. Where a bequest is made to a certain hospital in trust for the endowment and maintenance of a free bed therein, and before the executors make the allotment the hospital ceases to exist, the amount of the bequest becomes a part of the residuum of the estate, and passes to the residuary legatee as against the heirs where the residuary clause provides that the “rest and residue of my property of whatever kind” shall go to the residuary legatee.</p> <p>2. The burden of establishing 'a construction of a will that the residuary clause, contrary to the general rule, carries all of the testator’s estate not otherwise disposed of is on those making that claim.</p>

<p>RESTRICTION IN A DEED.</p> <p>Covenants with Reference to Buildings and Structures — For Promotion of Scenic Effect of a Park — Violation of, Affords Ground for Injunction, When — Authority of Municipality to Purchase Property outside City Limits- — What Constitutes a Structure.</p> <p>1. The enlargement of municipal powers in recent years with reference to the acquiring of land for parks permits tbe direct purchase as well as the appropriation of land outside the city limits for that purpose.</p> <p>2. Where the purpose of the restrictive clause of a covenant is to preserve to a municipality a parkway of uniform width and symmetry, a violation of the restriction by the erection of a structure, which will diminish the width for a portion of the distance and render the whole irregular in outline, presents a sufficient cause for the granting of an injunction upon the petition of the city, notwithstanding the adequacy of the legal remedy.</p> <p>3. Where the restriction provides that no building or other structure shall be erected within the prescribed area, a stone wall three ■feet in height will, in view of the purpose of the restriction, be regarded as a structure.</p>

<p>APPROPRIATION OF A PRIVATE SEWER..</p> <p>Municipal Corporations — Appropriation of Private Sewer Draining the Property of Several Parties — Easement for Drainage Purposes — ■ Effect of Dedication — Damages for Wrongful Appropriation.</p> <p>1. Where several property owners join in the building of a sewer for the drainage of their property, and enter into a contract for the maintenance and repair thereof, they severally acquire no rights in the property of the others save a mere easement for drainage purposes. Each party to such a contract may dispose of his property as he will, and where one of them dedicates his land to the municipality, the sewer within such land is not wrongfully appropriated by the city so long as there is no interference with the drainage easement of the other property owners.</p> <p>2. But as to that part of the sewer on the private property of one of the parties.to the contract, the city acquires no right under the dedication and is liable for damages for the wrongful appropriation thereof.</p>

<p>RAILWAY CROSSINGS OF COUNTY ROADS OUTSipE OF MUNICIPALITIES.</p> <p>Grossings — Street and Highway by Railways — Limitations and Restrictions upon — Charter Rights, Statutory Rights, and Rights by Implication — Agreement of Company with County Commissioners as to Terms — Occupation of Road by Whatever Angle or Lengthwise —Sections 3283 and 3.28//.</p> <p>1. By its articles of incorporation a railroad company is empowered to locate and construct its tracks upon and across roads and streets between its termini.</p> <p>2. The right of a railroad company to occupy a county road with its tracks is regulated by Section 3283, Revised Statutes, and, in the absence of agreement with the county commissioners, or appropriation as provided in said section, such company has no right to lay tracks upon or across a county road.</p> <p>3. Section 3284 does not confer on a railroad company the right to lay its tracks upon or across a county road. The purpose of Section 3284 is confined to' diverting a road or stream of water from its present location or bed. Query: Whether a railroad company has the right to divert a road or stream without agreement with the commissioners, or appropriation.</p>

<p>PAROL TRUSTS.</p> <p>Promissory Note — Conflicting and Inconsistent Evidence — As to Circumstances Surrounding Execution of — Efforts to Establish d Parol Trust Fail, When — Deeds—Pleading.</p> <p>Conflicting and inconsistent evidence and averments are insufficient to establish a parol trust as against the testimony of the grantee and the recital of the deed.</p>

<p>ARRESTS FOR. THE SALE OF LIQUOR ON SUNDAY.</p> <p>Criminal Law — Authority for Arrest loithout a Warrant by a Constable —-For Sale of Intoxicating Liquors on Sunday — Sufficiency of Affidavit for Arrest — Condemnation of the Practice of Serving “John Doe” Warrants.</p> <p>1. A constable has authority under Sections 7129 and 7133 to arrest one who is violating- the Sunday liquor law and hold him until a warrant can be obtained.</p> <p>2. Where a constable served upon a saloon keeper, for violation of the Sunday liquor law, a warrant calling for the arrest of “John Doe, whose real name to the affiant was unknown,” and made a return upon this warrant, and a trial and conviction followed, and no additional affidavit was made and no other warrant served, and at the trial the conviction was procured on facts occurring after the taking out of the “John Doe” warrant and before it was served, the defendant was tried without an affidavit supporting the charge.</p> <p>3. The policy of permitting.a constable to go about with “John Doe” warrants and power to serve them at random, particularly in a case in which a warrant is not necessary in the first instance, is a policy to be condemned.</p>

<p>PRESENT PROCEDURE WITH REFERENCE TO RAILWAY AND HIGHWAY CROSSINGS.</p> <p>County Commissioners — Without Authority to Agree with Railway Companies — With Reference to Crossings, either at Grade or Otherwise — Irreconcilability of Earlier and Later Statutes — Present Procedure — Property Owner may Enjoin Carrying out of Illegal Agreement — Sections 3337-17;', fc and m, 3337-8 and 9, and 3283.</p> <p>1. The implied powers with which county commissioners are clothed are ex necessitate only, and in their control and authority over county roads do not permit departure from the procedure fixed by statute.</p> <p>2. Resort to Section 3283 for authority to construct, either at grade or otherwise, a railway crossing over a public highway not within a municipality is forbidden by the. provisions of Sections 3337-17;', et seq., under the rule that a latter enactment upon the same subject and embodying a restriction supersedes and repeals the earlier act by implication.</p> <p>3. An agreement with the county commissioners, whereby .it is attempted to confer authority for the construction of such a crossing, is therefore clearly illegal, and injunction against such construction will lie upon the petition of an abutting property owner.</p>

<p>EFFECT OF DEATH OF ONE SUING FOR. DAMAGES FOR INJURIES.</p> <p>Abatement of Action for Personal Injuries — Survives the Death of the Plaintiff — Section 5V/J/ Construed.</p> <p>An action for damages for personal injuries does not abate by reason of the death of the plaintiff, but survives in favor of the administrator.</p>

<p>DESCENT OF BEQUEST TO DECEASED ADOPTED SON.</p> <p>Adoption and Descent — Distribution of Legacy to Adopted Son — Who Died Subsequent to the Testator, Unmarried and Without Issue— Application of Sections 311/0, 1/159, 1/116 and 1/163 — Meaning to be Given to the Words “Next of Kin" and “I-Ieirs at Lato.”</p> <p>It is the pui’pose of the statute upon the death of an adopted child, intestate and without issue, to preserve the property coming to him from the adopting parent to and for the blood of the adopting parent from which it came, as against the heirs and representatives of the widow of the adopting parent.</p>

<p>SATISFACTION OF OVERDRAFTS BY A FACTOR.</p> <p>Banks and Banking — Deposits, can not be Credited on Overdraft of a Factor, When — -Knowledge of Bank as to Deposits being Held in Trust — Presumption goes with the Deposit — Inquiry with Respect to, Compelled, When — Recovery by Customers of Live Stock Bro- , kers.</p> <p>1. A bank will be charged with constructive notice that deposits made by a firm engaged in selling live stock on -commission are proceeds from the sale of stock for their customers; "and where it'was known that the firm began business without capital, and the failing character of the business is written in the books of the bank in the form of overdrafts of increasing amounts, notice of the insolvency of the firm must be presumed.</p> <p>2. But it is the fact of the broker’s insolvency, rather than knowledge or want of knowledge on the part of the bank, that is material and determines the right of the consignor to .treat the bank as a trustee of the proceeds from the sale of his stock deposited by the broker; and where such proceeds aré credited by the bank on the overdrafts of the broker, an action for their recovery with interest will lie on the part of the consignor.</p>

<p>VALIDITY OF STREET ASSESSMENT AGAINST THE PROPERTY OF A PETITIONER.</p> <p>Streets — Improvement of — Validity of Assessment against Property of a Petitioner — Notice—Advertisement of Estimated Assessment — • .Sidewalks.</p> <p>1. The rule that the rights of all parties to a street assessment, including the municipality, are to be determined by the law of contract, renders liable for a street assessment an abutting owner who joined in a petition for the improvement of the street by grading, draining, curbing and the laying of sidewalks, and who knew or should have known that the work was in progress but entered ho protest thereto.</p> <p>2. "Where the laying of a sidewalk is included in the petition for the improvement of a street, the assessment therefor is not rendered invalid by reason of the fact that the city did the work without . firsc-notifying the abutting owners to lay the walk and their failure so to do.</p> <p>3. The ^provisions of the statutes as to proceedings which a municipality must take with reference to a proposed street improvement are for the benefit and protection of those against whose property it is sought to levy an assessment without their consent. Petitioners for the improvement waive their right to have the municipality proceed in accordance with the statutes, and will not be heard to complain because the estimated assessment, which the law requires shall be advertised for three weeks, was advertised for two weeks only.</p>

The plaintiff, an elector of the village of Johnstown, Licking county, Ohio, a municipality not divided into wards, filed his petition in the Probate Court of-Licking County, Ohio, to contest a local option election held in the village December 28, 1907, the grounds of the contest being— • 1st. Said, village council was not authorized to call said election, because forty per cent, of the qualified electors of the village of Johnstown did not petition the council thereof for…

Reprinted on account of errors. Outbwaite, Linn & Thurman and D. N. Postlewate cited in support of the claim that directors of a corporation act in a fiduciary capacity as trustees for the stockholders, and can not contract with themselves as individuals or derive pecuniary advantage not common to the stockholders generally: 3 Pomeroy, Eq.

<p>DEPUTY SHERIFF AND COURT CONSTABLE NOT INCOMPATIBLE POSITIONS.</p> <p>Office and Officer — -Court Constable and Deputy Sheriff — Neither Position a Public Office — And Both may be Held by Same Incumbent — Duties of Deputy Sheriff — Findings of Bureau of Public Accounting.</p> <p>1. Neither the position of deputy sheriff nor court constable is a public office as that term is known to the law, and the same person may hold both positions at the same time and lawfully receive the emoluments peculiar to each, provided he is not paid twice- for the same service.</p> <p>2. A person holding appointment as deputy sheriff is not ipso facto required to present himself to the court in that capacity at the ■ expense of the sheriff; and the court may properly appoint him court constable, these offices not being incompatible.</p>

<p>SUBSIDIARY CONTRACTS BY THE BOARD OF PUBLIC SERVICE.</p> <p>Municipal Corporations — Contracts Entered into by Council — Subsidiary Agreements by Board of Public Service Involving more than $500 —Authentication of Contracts — Construction of Sewer — Agreement as to Price for the Work not Fraudulently High, When.</p> <p>1. The statutory limitation on the authority of the board of public service to make contracts involving more than $500 without the action of the city council, has reference to original contracts, and does not affect the power of the hoard to make such modifications as it deems necessary in contracts already properly entered into by council; and where a contract for the construction of a sewer has been entered into in due form by the city council, the board of public service has power to enter into a subsidiary agreement with the contractpr to meet exigencies subsequently arising.</p> <p>2. A contract made by a hoard of public service is properly executed if signed by the president and clerk only, if such authentication is in accordance with the rules adopted by the board for the execution of contracts.</p> <p>3. A contract for the construction of a sewer for $60 per lineal foot is not shown to be fraudulent as to price by the fact that an expert, who did not take into account several elements of cost, estimated the work at $50 per foot.</p>

<p>MISAPPLICATION OF SECURITY BY SHERIFF.</p> <p>Sheriff — Proceedings for Amercement of — For Unauthorized Delivery of a Promissory Note — Section 559J¡. Construed.</p> <p>1. A co-parcener, who ratifies and confirms the unauthorized delivery to her- through an intermediary of a promissory note given to the sheriff in payment for one of the tracts of land sold in the partition proceedings, can not after parting with the note hold the sheriff for her interest therein.</p> <p>2. The statute providing for the amercement of a sheriff being quasi penal must be strictly construed, and does not permit of the word “money” as used in the statute being construed as the equivalent of a mortgage note, which may prove to be uncollectible or of less value than its face.</p>

<p>DECREE OF DIVORCE AGAINST INSANE WIFE.</p> <p>Divorce — Insanity of Defendant — Decree may he Granted for Aggressions Occurring Prior to Insanity — Character of Action for Divorce —Appointment of Trustee to Represent the Defendant — Jurisdiction where a Party is Insane.</p> <p>1. The common pleas court has jurisdiction of a divorce proceeding against an insane person, where the' aggressions occurred prior to the insanity, notwithstanding the fact that, at the time of the decree, the defendant is insane.</p> <p>2. A suit for divorce is a civil proceeding founded upon the tortious conduct of the defendant while sane, and is no exception to the established practice under our civil procedure for maintaining suits against insane persons.</p> <p>3. The appointment of a trustee representing the interests of the defendant is a valid exercise of power by the court and will therefore be recognized,</p>

<p>INJURY BY FALLING INTO AN UNGUARDED DITCH.</p> <p>Negligence- — Where a Pedestrian Fell into an Unguarded Trench in a City Street — Charge of Court — Error—Municipal Corporations.</p> <p>Vfhere a plaintiff sues for damages on account of injuries from falling into an open trench in a'city street, alleged to have been left open and unguarded at night, it is for the jury to say whether he was himself negligent in failing to use his faculties to discover the danger and protect himself therefrom as a reasonably prudent man would have done, and it is error under such circumstances for the court to instruct the jury to find for the defendant on the ground of plaintiff’s contributory negligence.</p>

<p>QUESTIONS FOR. DETERMINATION UNDER A JONES LAW PETITION.</p> <p>Liquor Laws — Petition Under the Jones Law in Effect a Voting by Petition Rather Than by Ballot — Burden of Proving Fraud or Misrepresentation to Signers — Signature Written for an Incapacitated Elector Valid — Proof of Residence Makes Prima Facie Case of Qualification to Sign — Questions for Determination by the Court.</p> <p>1. A petition under the act of March 22, 1906, 98 O. L., 68, commonly known as the “Jones law,” is in effect voting hy petition rather than by ballot, differing in one respect from voting by ballot in ■ this, that a signer of such petition may withdraw his name from the petition after the petition is filed upon proof by him of fraud or misrepresentation. The burden of proving such fraud or misrepresentation is upon the signer who desires to withdraw his name.</p> <p>2. Fraud and misrepresentation can not be predicated upon a claim that the petition was not read to the signer, or that he did not understand its contents; and the signer has no right to rely upon statements of others as to the purpose of the petition, or the territory embraced, since both are required to be set out therein.</p> <p>3. The questions to be determined by the court upon the hearing of such petition are: That the territory described is a residence district; that the petition is correct in form; that the signers of the petition are qualified electors of the territory described; that the number of qualified electors of the described territory, who have signed such petition, equal a majority in number of the electors in such residence district -who voted at the last general election; that the signatures to such petition are genuine.</p> <p>4. A signature made in the presence and at the request of a qualified elector, who is incapacitated. from signing by his own hand, is a valid signature.</p> <p>5. Proof of residence in the state of Ohio for one year and in the district for four months makes a prima facie ease of qualification to sign such petition.</p>

<p>VALIDITY OF BOND ISSUE FOR WATER. WORKS PURPOSES.</p> <p>Municipal Corporations — Additional Bonds for Water Works Construction — Issued Under Authority of an Ordinance — Authorized t>y Longworth Act.</p> <p>Under the authority of the Longworth act (95 O. L., 318), the city council of the city of Cincinnati may, by ordinance, provide for the borrowing of money and the issue of bonds to be placed at the disposal of the board of trustees, commissioners of water works, for the completion of the water works of the city of Cincinnati, in accordance with the provisions of 92 O. L., 606, and the acts supplementary thereto, within the limitations prescribed by said Longworth act.</p>

<p>ATTACKING IRREGULARITIES IN SEPARATE MOTIONS.</p> <p>Pleading — Motion to Malee Petition more Definite and Certain — Petition Amended — Other Irregularities Attached by Subsequent Motion.</p> <p>Where a defendant files a motion to make the petition more definite and certain as to particulars which are named, he will not he permitted after amendment of the petition to file a second motion attacking irregularities which were known and might have been covered by the original motion.</p>

<p>UNFAIR ALLOTMENT OF COAL CARS.</p> <p>Discrimination — In the Distribution of Gars Among Goal Mines — Wagon Mines Entitled to Same Allotment as Tipple Mines — Favors Which are Equivalent to Rebates — Burdens on Small Shippers — Reasonable Order by the Railroad Commission.</p> <p>1. It is discrimination on the part of a railroad company to allot all of its gondola cars to tipple mines, and by furnishing box cars only to wagon mines, impose, upon the owners of such mines the additional expense of two dollars per car for loading.</p> <p>2. Where wagon mines are equipped to make regular shipments when in operation, they are not to be discriminated against because they do not ship all the year around; and where their equipment is equal to that of some of the tipple mines in the same vicinity, it is discrimination against them to refuse to estimate their capacity, and as a consequence fail to furnish them cars in the same proportion as to number furnished to tipple mines.</p>

<p>PUBLICATION OF ORDINANCES AND RESOLUTIONS.</p> <p>Municipal Corporations — Publication of Ordinances, Resolutions, etc.— Council has Authority to Select Newspaper Therefor — Section 1536-619.</p> <p>The council of a village has authority to select the newspapers in which its ordinances and resolutions, subject to the provisions of Section 1536-619, and to direct where all other publications shall he made except in eases where the statutes expressly provide that the selection shall be made by some official.</p>

<p>CONSTRUCTION OF THE PRIMARY ELECTION LAW.</p> <p>Elections — Powers of Canvassing Board — With Reference to Determining the Result of a Primary Election — Functions of, Distinguished from Those of State Supervisors — Mandamus—-Section 2968-39.</p> <p>Mandamus will lie to compel a canvassing board to perform duties made mandatory upon it, by opening the sealed envelopes containing the ballots cast at a primary election and determining the controversy which has arisen with reference to the result of such election.</p>

<p>CONTRACTS OF SALE OR OF AGENCY.</p> <p>Construction of Contract — Whether One of Sale or of Agency to he Determined, Sow — Absence of Limitations or Restrictions, hut a Reservation of Ownership — Conditional Sales — -Evidence of — Assignment for Benefit of Creditors — Section</p> <p>1. Whether a contract between a machine company and a dealer is a contract of sale or one of agency is to be determined from a consideration of the entire instrument. To determine its real character its purpose rather than its name is to be looked to.</p> <p>2. Where the contract throughout indicates an absolute sale, there being no limitations or restrictions as to locality, price, terms or conditions of resale, such contract does npt become one of agency as to creditors of the dealer by reason of the single reservation that the ownership shall remain in the company and the proceeds of the sale be the property of the company.</p> <p>3. Upon assignment for the benefit of creditors by a dealer in possession of machinery under such a contract, the company not having complied with Section 4155-2, Revised Statutes, the assignee is entitled to the possession of such machinery.</p>

<p>ACCOUNTING UNDER A TRUST.</p> <p>Descent — Course of, Where Lands Held in Trust are Sold — Lands in which Proceeds are Re-invested are not Ancestral — Legal and Equitable Title — Equitable Conversion — Wills—Trust Estates— Changing Course of Descent — Sections J/IJ/S and J/1J/9.</p> <p>1. Where land is devised to grandchildren to be held in trust by their father, with discretionary power in him to sell and re-invest the proceeds in other land, and this power is exercised by him, the land so acquired is not ancestral but comes by purchase.</p> <p>2. In the event of the death of the grandchildren, unmarried and without issue, during the lifetime of the father, the entire estate, .both legal and equitable, descends to and becomes merged in him, notwithstanding the course of descent is thereby changed.</p>

<p>COMPENSATION OF COUNTY COMMISSIONERS.</p> <p>County Commissioners — Compensation to, tohile Serving as Member of County Board of Equalization — Section 2804 Creates no New Office, but Simply Attaches New Duties — 97 O. L., 254, Supersedes Section 2818a — Strict Construction of Laws Relating to Public Officers.</p> <p>County commissioners are not entitled to compensation for serving as members of the county board of equalization in addition to the salary provided for in the general salary act of 1904.</p>

<p>TAXABILITY OF MONEYS INVESTED IN MUNICIPAL AND COUNTY BONDS DURING THE TAX YEAR.</p> <p>Taxation — Monthly Average of Moneys Invested in Municipal and County Bonds — Under Section S7S7 Need not be Listed — Construction of Subdivision 16.</p> <p>Inasmuch as municipal, county and township bonds were not exempt from taxation at the time paragraph 16 of Section 2737, Revised Statutes, was enacted, these classes of bonds can not he included in the term “bonds .-or other securities of the state” as used in that act, and there having been since the amendment of the Constitution, exempting these bonds from taxation, no legislative enactment requiring that the average monthly amount of moneys invested in such securities be listed by the tax-payer, such average monthly amounts are not subject to taxation.</p>

<p>SPEED OF AUTOMOBILES.</p> <p>Affidavits — Valid where Sworn to hy Deputy Police Court Clerics — 98 O. L., 820, Unconstitutional — 97 O. L., 283, not Repealed 6y Implication — Error—Criminal Lato.</p> <p>1. The power to administer oaths having been conferred by statute on clerks of police courts, it may be legally exercised by the deputies of such clerks; and it is therefore not error to overrule a motion to quash an affidavit on the ground that it was sworn to and subscribed before such a deputy.</p> <p>2. The act of April 2, 1906 (98 O. L., 320), relating to the registration, licensing, speed, etc., of motor vehicles, is unconstitutional for lack of uniform operation, and does not for that reason repeal by implication Section 3490, Revised Statutes (97 O. L., 283), which limits the speed of automobiles to eight miles an hour in the business and closely built up portion of a municipality.</p>

<p>APPROPRIATION OF LAND BELONGING TO A MUNICIPALITY.</p> <p>Eminent Domain — Appropriation by Railway Company of Undesirable and Unused Park Property — And of Street Incapable of Improvement — Land Held by Company without Agreement — Section dl/I/S —Estoppel.</p> <p>1. Property originally acquired by a municipality for park purposes, but occupied by a railroad company for more than thirty years, and declared in 1886 to be unnecessary for park or municipal purposes, and having never been thereafter reserved or set apart for park purposes, is not park property and may be appropriated •by the railroad company for its permanent and exclusive use as a right of way.</p> <p>2. So also ground dedicated for street purposes, which from its topography is unsuited therefor, and for more than half a century remains unimproved and during much of that time has been occupied with railroad tracks under a contract with the city and is still so used, and there is no reasonable prospect that its use as a street will ever become necessary or desirable, may be appropriated by the railroad company for its permanent and exclusive use.</p>

<p>CREDITORS OF HEIR. CAN NOT EXCEPT TO ACCOUNT OF ADMINISTRATOR..</p> <p>Estates of Decedents — Exceptions to Account of Administrator — Who may File — Creditor of an Heir at Law Without Standing — Construction of the Phrase, “Any Person Interested in the Estate”— Section 60%4-</p> <p>1. To be entitled to file exceptions to an account of an administrator before the probate court for settlement, under the statutes of Ohio, a person must' be interested in the estate distributed, or to be distributed; and he must claim through said decedent as creditor, devisee, legatee, distributee, or heir at law, widow, or next of kin of said decedent.</p> <p>2. A creditor of an heir at law or distributee of a decedent, whose estate is being administered upon, is not such a person and has no interest in the estate that qualifies him to file or maintain exceptions to the account offered in settlement of said estate by said administrator, and has no legal capacity to maintain such an action.</p> <p>3. A judgment creditor of an heir at law of a decedent, whose estate is being administered upon in the probate court, having filed therein exceptions to the final account of the administratrix of said estate, . and said account and exceptions thereto having by said exceptor been carried on appeal to the court of common pleas, said court of common pleas will on demurrer by way of objection to the introduction of any evidence, and by motion to strike out, interposed by . said administratrix to said exceptions, on the ground that said exceptor has no capacity to sue, sustain said demurrer and dismiss said exceptions at the costs of the exceptor.</p>

<p>COMBINATIONS TO CONTROL RATES OF INSURANCE.</p> <p>Monopolies — Valentine Anti-trust Law not Applicable to Combinations of Insurance Agents — Meaning of the Words “Trade,” “Commerce,” and “Commodities” — Criminal Law — necessity for Exactness in Description of Forbidden Acts — Adoption of Laws of Other States— Construction of such Laws in the States of their Origin.</p> <p>1. The business of soliciting and selling fire, lightning and tornado insurance is not commerce; contracts of insurance are not commodities; and the carrying on of the insurance business it not a trade within the meaning of Section 4427-1, known as the Valentine anti-trust law. ,</p> <p>2. Inasmuch as acts are not criminal in Ohio unless made so by statute, it is necessary that forbidden acts should be described in the statute pertaining thereto with reasonable certainty; and in applying such statutes words found therein which have two significations will be given the meaning ordinarily given to such words in their every day use.-</p> <p>3. The rule that where the Legislature of Ohio adopts a law of another state, it should be given the same construction in Ohio which it had theretofore received in the state of its origin, requires that the business of insurance should be excluded from the operation of the Valentine anti-trust law in Ohio, as was done in Texas under the prototype of this law.</p>

<p>AUTHORITY TO TRANSFER. COUNTY FUNDS.</p> <p>County Commissioners — Power of, to Transfer Funds — Proceeds of Aiken Lato — Collections not Needed for Expenses of Infirmary-Limitation of Powers of Infirmary Directors as to Expenditures— Injunction — Sections 876, 974, 2334d and 4864-17.</p> <p>The county commissioners are “the proper authorities” to order transferred to some other county fund where it is needed any surplus in the poor fund arising from Aiken law collections.</p>

<p>ATTACHING INTERROGATORIES TO AN ANSWER..</p> <p>Pleading — And the Sight to Annex Interrogatories — Does a General Allegation of Contributory Negligence Afford an Affirmative De-fense — Suits for Discovery and Auxiliary Proceedings — Action for Wrongful Death — Administrator—Sections 5099 and 5298.</p> <p>1. The right to annex interrogatories, provided for by Section 5099, does not extend to the attaching of questions to an answer in . an action by an administrator for the wrongful death of his intestate; nor where the information sought is necessarily not within the personal knowledge of the party addressed; nor when not pertinent to the pleading to which the questions are attached; nor when a responsive answer would be mere opinion, and not fact. Where interrogatories fall within any of these categories, a motion to strike them off should be sustained.</p> <p>2. Quaere — Whether a general allegation in an answer of contributory negligence gives to the defendant a right of affirmative defense on that ground?</p>

<p>FOR. RECOVERY OF GAMBLING PROFITS.</p> <p>Illegal Contracts — Profits Arising from Gambling Operations not Recoverable — Court will Leave the Parties where it Finds Them— Administrator’s Rights no Better than those of the Decedent.</p> <p>Profits arising under a contract for the operation of a book on horse races are not recoverable, either by the party in interest or his administrator.</p>

<p>ORDER OF PAYMENT OF LEGACIES WHERE ESTATE IS INSUFFICIENT TO PAY ALL.</p> <p>Wills — Construction of — Situation of Testator and Objects of Bounty May be Considered — Determination as to where Preference Belongs —Punctuation—Primary and Pecuniary Legacies — Estate Insufficient to Pay All — Preference in Payment.</p> <p>Testatrix by her will gave (besides several specific legacies) two legacies to certain church societies, five legacies to her nephews and nieces, one to her “faithful maid” and one to plaintiff. These legacies were pecuniary and numbered in sequence. Item XIV of the will provided that any excess after paying debts and legacies should go to increase the church legacies, and then provided that “if * * * it appears that there are not sufficient funds to pay all of the said bequests and all proper charges against my estate in full, then it is my will that the bequests named in Items IV, V, VI, VII, and VIII” (to the nephews and nieces) “shall be reduced ratably or if necessary cancelled entirely, it being .my wish that Items II and III” (to the church societies) “shall at all events be paid in full.” The legacies to the plaintiff and the maid, being those in Items IX and XII, were not mentioned in this item. Plaintiff was also much the largest beneficiary under the will, excepting the church societies. In an action to construe the will to determine which, legacies should abate, there being a deficiency of assets — Held:</p> <p>1. The church legacies should be first paid as taking precedence of all the pecuniary legacies; next in priority should be paid the legacies to plaintiff and the “faithful maid”; and lastly the other legacies if there remained sufficient funds.</p> <p>2. In an action to construe a will the situation of the testatrix and of the objects of her bounty can be looked to in ascertaining her intention; and the fact that the plaintiff was a foster-daughter of the testatrix can be alleged and proved as an element in determining the intention of the testatrix to prefer her.</p> <p>3. Mere punctuation, if it renders doubtful or ambiguous the intention of the testatrix, may be disregarded if from other circumstances a reasonable construction of the testatrix’s intention may be arrived at.</p>

<p>DEPOSITS OF CHECKS ON BLANK INDORSEMENTS IN AN INSOLVENT BANK.</p> <p>Banks and Banking — Public Funds not Impressed with a Trust— Where Deposited in the Form of Checks Indorsed in Blank— Certificates of Deposit^-Insolvency — Preferences.</p> <p>Where a county treasurer deposits in an insolvent bank checks received for taxes which he has endorsed in blank, for which he accepts a certificate of deposit, hut retains no memorandum of the checks deposited, he can not after the bank has gone into the hands of a receiver follow the checks or the money collected on them as a trust fund and claim a preference over other creditors for ' the amount so received from him by the hank.</p>

<p>FORFEITURE OF FIRE INSURANCE FOR. FRAUDULENT REPRESENTATIONS.</p> <p>Fire Insurance — Action to Set Aside Award of Appraisers — Findings as to Fraudulent Representations made to Appraisers — Charge of Court — Burden of Proof — Parties—Misjoinder—Separate Defenses.</p> <p>1. In an action by a number of fire insurance companies to cancel policies and set aside an appraisement and award on the ground that the loss as returned was excessive by reason of fraudulent representations as to the amount of goods destroyed, the fact that the interests of the insurance companies were several and their policies were issued for separate considerations and were of different clases does not render the actibn several or present a misjoinder of parties plaintiff, where the primary relief sought is the cancellation of the award.</p> <p>2. Errors, either by way of misjoinder or for failure of the petition to state a cause of action, are waived by entering into a stipulation for the taking of testimony as to the issues joined and participation thereafter in the taking of such testimony.</p> <p>3. Where fraud is charged, involving a forfeiture if proved, nothing can be presumed, but the burden is on the plaintiffs, and a charge to the jury which shifts some of this burden upon the defendants is erroneous.</p>

<p>SALE OF PLEDGED STOCK BY A CLIENT TO HIS BROKER.</p> <p>Relation of Broker and Client — Purchase of Pledged Stock by Broker —Knowledge of Client as to Whom, he Was Selling — Fraud—Accounting — Evidence—Sales.</p> <p>The .purchase from a client by a broker individually of stock which is held in pledge is not an act of bad faith, when done without concealment; and where the evidence shows that there was no active market for the stock, and the client knew of no one who would give more for it than the quoted price, and the broker offered to take it at that price, and the sale was thereupon consummated, the client will be held to have known that he was selling to and not through the broker, and the sale will not be set aside and an accounting ordered on the ground of fraud.</p>

<p>AUTHORITY OF PROBATE COURT OVER ADMINISTRATORS.</p> <p>Estates of Decedents — Probate Court Clothed with Specific and not General Jurisdiction — Express Limitation of Auxiliary and Incidental Powers — No Authority to Order Erection of a Monument at Crave of Decedent — Discretionary Power — Sections 524 and 6185.</p> <p>1. While the probate court has authority to direct and control the conduct of executors and administrators with reference to the trusts they are called upon to administer, it is without authority to go beyond such direction and control as is conferred by law, or to require the performance of an act which is outside of or beyond a legal administration of the estate.</p> <p>2. Authority is not conferred upon the probate court by Section 6185, or under the general jurisdiction with which it is clothed with reference to the settlement of the estates of decedents, to order that if the widow and next of kin fail to erect a suitable monument at the grave of a decedent within a time named, the administrator shall proceed so to do at a specified cost.</p>

<p>POWER OF ATTORNEY TO MORTGAGE REAL ESTATE.</p> <p>Power of Attorney — Scope of, Limited to Business of the Principal— > When Conferring Power to Mortgage Real Estate — General Words Limited to Particular Acts — Mortgage on Principal’s Real Estate Securing Agent’s Individual Note Held Void.</p> <p>1. A power of attorney authorizing the giving of notes or executing of mortgages in' the name of the principal will be construed as extending only to notes and mortgages given in the business of the principal or - for his benefit; and unless the power of attorney expressly so declare, the agent will not be held to have authority to give notes and mortgages for his own benefit or for the benefit of third persons.</p> <p>2. Where authority is conferred to perform specific acts and general words are also employed, the general words are limited to the specific acts authorized..</p> <p>3. A power of attorney authorized the agent to sigh notes for and in the name of the principal and execute mortgage deeds on the real estate of the principal to secure payment of such notes, and to execute and deliver such deeds for the purpose of incumbering said real estate with clauses of warranty and such other clauses, covenants and agreements as the agent shall think fit and expedient, and generally to perform any other act relating to the premises fully and to all intents and purposes, as the principal might or could do if personally present. Held: A mortgage executed by the agent upon the real estate of the principal to secure payment of a note given by the agent for his individual indebtedness, is unauthorized and void.</p>

<p>DAMAGES FOR. FAILURE TO DELIVER COAL.</p> <p>Contracts — Damages for Breach of — Full Performance Necessary by Party Complaining — Reading Custom into Contract — Knowledge Regarding Custom — Lack of Cars — Lack of Help — Advance in Freight Rates — Silence Amounts to Renunciation, When.</p> <p>1. An action for damages for breach of contract for the delivery of a certain amount of coal “as ordered,” must be based on full compliance by the plaintiff of all the things required of him under the contract.</p> <p>2. Failure to perform a contract because of failure of the means for carrying it out will not excuse non-performance; and before a custom can be read into a contract, unless it is one so notorious that the parties may be conclusively presumed to have had full knowledge concerning it, there must be proof that it was certain in its terms, and uniform in its operation, and that the parties were fully informed regarding it.</p>

<p>DAMAGES FOR INJURIES TO AN INFANT.</p> <p>Negligence — Resulting in Injury to an Infant-^Special Expenses— Earning Capacity — Failure to Show Emancipation- — -Charge of Court — Evidence—Street Railways — Measure of Damages.</p> <p>1. It is error to admit over exception an answer to a question which involves opinion regarding a matter not susceptible of expert testimony, where the jury are in possession of all facts necessary to form an intelligent opinion and the question is one which they must themselves determine.</p> <p>2. In an action by an infant, brought through his next friend, for damages sustained through the negligence of the defendant, it is error to charge the jury with reference to expenses sustained by reason of the accident, where the petition does not allege that any expenses were incurred and there is no evidence on that point.</p> <p>3. It is also error to instruct the jury that an allowance may be made for time lost by the minor by reason of the injury and for diminished earning capacity, where no evidence has been offered as to time lost and it does not appear that the minor has been emancipated.</p>

<p>FOREIGN TRUST COMPANIES AS TESTAMENTARY TRUSTEES FOR FOREIGN TESTATORS.</p> <p>Corporations — Powers of, in Foreign States — Trust Companies Acting as Testamentary Trustees — May Join in Action with respect to Lands in Ohio, When — Appropriation—Section 382X-6.</p> <p>A foreign trust company appointed and qualified to act as executor and _ trustee under the will of a- foreign testator may sue m the courts of Ohio, where the will includes real property situated in this .state, to recover compensation and damages under Section 6448, providing procedure where land is held by a railroad company without agreement with the owner, when an authenticated copy of the will and the probate thereof has been duly admitted, to record in the county where the real estate affected is located.</p>

<p>ABATEMENT OF ACTION BY DEATH OF PLAINTIFF.</p> <p>Summons — Truth and Sufficiency of Return — Motion to Set Aside — Action. for Damages for Personal Injuries — Death of Plaintiff before Summons was Served.</p> <p>Where the plaintiff to an action for* damages on account of personal injuries dies before summons is served on the defendant, the action abates eo instanti.</p>

<p>PROPER. ALLOWANCE FOR FUNERAL EXPENSES.</p> <p>Executors and Administrators — Claim against Estate of Decedent for Funeral Expenses — Must be Reasonable or Will be Disallowed— Rules for Determining What is Reasonable — Consent of Legatees does not Justify Waste or Extravagance.</p> <p>1. Where a frugal man, simple in his tastes and habits of living and accustomed to hard work, takes his own life, leaving an estate of. $800, an expenditure of $150 for a casket is extravagant and unreasonable and should be dissallowed, notwithstanding the sole legatee may have acquiesced therein at the time.</p> <p>2. An expressed desire by a decedent as to the amount which should he expended on his funeral is without force or effect,' unless such desire has found expression in his will.</p>

<p>PAROL EVIDENCE AS TO FUTURE LEASE.</p> <p>Statute of Frauds — Contracts—Evidence as to Future Lease — Inadmissible to Vary Terms of Subsisting Lease — Parol Agreement for Lease to Begin in Future Void — Tenancy by Month or Year Within Section J/19S — Parol Lease for More than Year Void.</p> <p>1. A lease held by a partnership from year to year is,not abrogated or the joint and several liability of the partners thereunder discharged by a dissolution of the partnership, nor is there a change of possession .where co-incidentally with the dissolution of the old some of the members form a new partnership which succeeds to the rights and liabilities of the old, including the lease with the-consent of the lessor.</p> <p>2. A conversation regarding further occupancy of the premises, held between the lessor and one of the members of the old firm and prior to its dissolution, can be construed only as a tentative ex- • pression on either side, and is inadmissible for the purpose of establishing an agreement changing- the tenancy as it existed theretofore.</p> <p>3. Moreover a parol agreement for a lease to begin in the future, made with one already in possession under’a prior contract, is void and could not be relieved from the operation of the statute of frauds ■ by entry, inasmuch as the landlord by parting with possession under the subsisting contract has put it beyond his power to give possession.</p> <p>4. A tenancy from month to month or year to year is an “uncertain interest in lands” within the purview of Section 4198, Revised Statutes; and a parol lease of real property' not to be performed within a year falls within the inhibition of Section 4199, Revised Statutes.</p>

<p>PROSECUTION FOR EMBEZZLEMENT OF FRATERNAL SOCIETY FUNDS.</p> <p>Criminal Law — Indictment for Embezzlement — Good Against a Trustee of an Odd Fellows Lodge — Under Statute Relating to “Officer of a Person” — Where Statute has been Repealed, not necessary to Allege that it was in Force at Time Offense was Committed — Sections 681$ and 8791/.</p> <p>1. The rule that a statute should not he held inoperative merely because every conceivable class to which it relates is not specifically mehtioued, renders good against demurrer an indictment charging a wrongful conversion by a trustee of an Odd Fellows lodge, where drawn under Section 6842 as it stood prior to the amendment of 1902.</p> <p>2. It is not necessary that an indictment, under a statute which has been repealed or amended since the offense was committed, allege in express terms that the crime charged was committed in violation of said statute while it was in force, but it is sufficient if the time of the commission of the offense was prior to the change in the -law.</p>

<p>OCCUPATION BY RAILWAY WITHOUT TITLE.</p> <p>Findings of Fact — Not Reviewable, When — Motion for New Trial — Error —Railways—Title—Injunction—Weight of Evidence.</p> <p>The filing of a motion for a new trial and the entering of exceptions to its overruling is indispensable to a review of findings of facts on a petition in error.</p>

<p>TITLE ACQUIRED BY ADVERSE POSSESSION FROM CO-TENANTS.</p> <p>Title . by Adverse Possession — Good against Co-Tenants, When — Acts which Do not Worh a Disseizin — Statute of Limitations — Started Running by an Action to Quiet Title — Defects in Proceedings not Material — Title Indefeasible in Hands of Devisees.-</p> <p>I. Proceedings to quiet title against co-tenants start tlie statute of limitations running against such co-tenants, and form the basis for a title by adverse possession whether' or not defects in the proceedings to quiet title rendered such proceedings ineffective.</p> <p>2. Title acquired hy adverse possession is indefeasible in the hands of devisees as well as purchasers.</p>

<p>NEGLIGENCE IN PERMITTING ROPE TO DRAG BEHIND WAGON.</p> <p>Presumption of Negligence — Raised by the Dragging of a Rope Behind a Wagon — Burden on Owner of Wagon to Remove Presumption— May be Rebutted — Charge of Court with Reference to — Error— Damages.</p> <p>1. The dragging of a rope behind a wagon in a crowded street at night raises a presumption of negligence, and in an action by one who was injured by being caught in the rope it is not error to charge the jury that under such circumstances the burden is upon the owner of the wagon to remove the presumption.</p> <p>2. Such a presumption is open to- rebuttal, and if evidence is offered for that purpose it is for the jury to say whether a preponderance of all the evidence establishes that the defendant exercised the degree of care with reference to the rope which an ordinarily prudent person would have exercised.</p> <p>3. It is not error to charge a jury that the plaintiff is entitled as damages for personal injuries to “full compensation,” instead of “reasonable compensation.”</p>

<p>TOWNSHIP DEPOSITORIES.</p> <p>Bank Bids for Township Funds — One of ,Its Directors a Township Trustee — Action to Enjoin Award — Oonstruction of the Depository Law with Reference to the Prohibition Found in 'Section 6976.</p> <p>The fact that one of the township trustees is a stockholder and director in a bank situated within the township, which has submitted the highest bid for the usage of the township funds and to act as depository under the provisions of Section 1513, does not under the provisions of Section 6976 disqualify the bank from so acting, and injunction will not lie to prevent the award.</p>

<p>PROCEEDINGS IN ATTACHMENT ON ERROR. FROM A JUSTICE OF THE PEACE.</p> <p>Attachment — Motion before Justice of the Peace to Dissolve — Appeal to the Common Pleas — Failure to Certify Bach within Three Days —Prosecution of Error therefrom — Hearing of Testimony de Novo —Section</p> <p>1. ■ It is not error for a court of common pleas to hear testimony de novo on appeal in an attachment proceeding from the overruling by a justice of the peace of a motion to dissolve.</p> <p>2. A justice of the peace may take judicial notice of proceedings on his own docket, and the dismissal by him of an attachment proceeding without the hearing of testimony is not error, where annother case is pending in the same court, or in the court of common pleas, between the same parties and involving the same subject-matter. Beardsley v. Zacharias cG Co., 19 C. C., 637, followed; Lyon v. Phares, 9 C. C. — N. S., 614, not followed.</p>

<p>CONDITIONS OF OCCUPANCY AND USE UNDER. A FIRE INSURANCE POLICY.</p> <p>Fire Insurance — Conditions as to Occupancy and Character of Use of Building — Increase of Iiislc — Burden of Proof — Charge of Court— Section 36J/3.</p> <p>A condition in a policy of Are insurance that it shall be effective only “while the premises are occupied as a store and dwelling” is a mere condition subsequent; and in an action on such a policy it is not erroneous, in the absence of fraud, to submit to the jury the question whether a change in the use of the building and subsequently its being left vacant increased the risk of fire, and to charge that if the jury found in the negative, the policy holder would be entitled to recover. Moody v. Insurance Co., 52 Ohio St., 12, followed.</p>

<p>VOID ROAD CONTRACT.</p> <p>Gounty Commissioners — Contracts -with, Must be in Substantial Compliance with the Statutes — Otherwise they are not Merely Voidable, but Void — Contractor without Remedy — Auditor’s Certificate.</p> <p>Where a contractor enters into an agreement with county commissioners for the macadamizing of a county road, but the attempted contract is rendered invalid by reason of the omission of the auditor’s certificates required by Section 28340, he can not recover either the consideration named in the contract, or on a quantum meruit, or for the money, labor and material actually expended in faithfully carrying out the contract; and this is true notwithstanding he acted in good faith in the entire matter, and in reliance on the representations of the commissioners that they were fully empowered to make and enter into the proposed contract.</p>

<p>PAY OF PUBLIC SCHOOL TEACHERS.</p> <p>Schools — Spirit of the Statutes Relating to — May not be Disregarded by Board of Education — Public School Teachers may Recover Extra Compensation for Janitor Work — And also Pay for Attending Teachers’ Institutes in Vacation — Sections J¡091 and 4018, as Amended.</p> <p>1. In construing a statute, the courts will take judicial notice of the history of the subject-matter to which the act relates, and to relevant facts which are matters of common knowledge, and will seek aid in ascertaining the intention of the Legislature by assuming that body was familiar with such history and facts and had them in mind when the statute was enacted.</p> <p>2. A teacher in the public schools of the state may recover compensation from the board of education for time occupied in attendance at a teachers’ institute, if such teacher was actually engaged in teaching at the time or began teaching within three months after the institute closed; and such right of recovery is not affected by the fact that the institute was held during the summer vacation.</p> <p>3. Where a teacher has been required by a board of education to do janitor work, without having entered into a special contract so to do and without compensation therefor in addition to that received for teaching, he' may recover in an action against the board the reasonable value of such services.</p>

<p>CONTEST OF ELECTION OF MAYOR. OF VILLAGE,</p> <p>Elections — Contest of — Decision of Freeholders not Reviewable — No Bill of Exceptions Authorized — Notice—Service of, Controlled by Code of Civil Procedure — Jurisdiction of Probate Judge Limited to Question of Costs.</p> <p>1. The decision of the freeholders summoned by a probate judge in a proceeding to contest the election of a mayor of an incorporated village can not be reviewed on error in the common pleas court.</p> <p>2. There is no authority for a bill of exceptions in such a contest and on error to the common pleas a motion to strike the bill of exceptions from the flies will be granted.</p> <p>3. The notice provided for to the contestee may be served in the same manner as a summons under the code-of civil procedure.</p>

A party holding .a note as collateral security for an existing -debt is bound to use only ordinary care' and diligence in .the care of the same, and the rights and liabilities of the parties in such eases are governed by the general laws of .agency. Roberts v. Thompson, 14 Ohio St., 1; Bridge Co. v. Bank, 46 Ohio St., 224; Westphal v. Ludlow, 6 Fed. Rep., 348.

<p>MOTION TO DISSOLVE ATTACHMENT.</p> <p>Attachment — Procedure before Justice of the Peace — Policy of the Laxo xoith Reference to — Yerbal Motion to Dissolve — Section 6404.</p> <p>Inasmuch as Section 6494 does not stipulate that a motion for discharge of an attachment shall be in writing, jurisdiction is obtained on appeal to the common pleas by the filing of a verbal motion to dissolve and the overruling thereof by the magistrate.</p>

<p>IMPOSING NEW BURDEN ON RAILWAY RIGHT-OF-WAY.</p> <p>License to Lay Pipe Line on Railway Right of Way — Injunction Against, by Owner of the Fee — Will not Lie, When — Title Subject to Easement — Non-user—Abandonment—Coming into Court with Clean Hands.</p> <p>1. The fact that a railway company for more than fifty years has owned a hundred foot right of way without using it except by a single track in the center thereof, does not justify the assumption that the unused portion has been abandoned; nor can abandonment be established by evidence that the railway company has granted to a pipe line company the right to maintain a pipe line along the right of way for a period of five years, with the right reserved to annul the license at any time the space may be needed for railroad purposes.</p> <p>2. Where the evidence shows that the plaintiff, who is not an abutting owner, purchased the fee of a small section of a railroad right of way for the sole purpose of taking advantage of the necessities of a pipe line company by enjoining them from using the right of way in laying their pipe line, an injunction will be denied on the ground that the plaintiff does not come into court with clean hands.</p>

<p>FILING OF ACTIONS WITHOUT PREPAYMENT OF COSTS.</p> <p>County Cleric — Can not Demand Pre-payment of Costs for Piling a - Cause — Mandamus to Compel — Discretion of Cleric — Section W/5.</p> <p>The duty is mandatory upon a clerk of court to file, docket and issue summons on a petition, and he is without discretion to require pre-payment of his statutory fees as a condition precedent to the performance of his duty.</p>

<p>STREET CAR. PASSENGER INJURED IN ALIGHTING.</p> <p>Negligence — Passenger Prevented from Using Handrail — Is Thrown to the Street — Question.as to Notice to Company of the Obstruction— Error in Talcing Case from 7ury.</p> <p>A traction company is bound to keep clear from obstruction the facilities provided' for assisting passengers in entering and leaving the cars, and when a handrail is covered by a garment in such a way as to prevent the rail being grasped by a passenger attempting to alight, with the result that she was thrown into the street and injured, the question as to whether the company had notice through the conductor of the car of the presence of the obstruction is one for the jury; and to take such a case from the jury and direct a verdict for the defendant company is error.</p>

<p>APPROPRIATION OF GRAVEL FOR ROAD PURPOSES.</p> <p>Road Supervisors — Statute Authorizing Entry upon Lands and Removal of Gravel Unconstitutional — Provisions for Compensation and Appeal — Sections J/715, Ji690 and J¡699.</p> <p>Sections 4715, authorizing road supervisors to enter upon any uncultivated land, or improved land unincumbered by crops, for the purpose of procuring gravel to be used in improving or repair of a road, is invalid in that it fails to provide a complete method whereby the owner of the property entered upon may have damages assessed therefor by a jury as provided by Article I, Section 19 of the Constitution, and injunction will lie against such entry.</p>

<p>THE SEVERAL CLASSES OF CONTEMPT OF COURT RECOGNIZED IN LAW.</p> <p>Newspapers — Criticism by, of a Party to a Cause About to be Tried— Benders Publisher Liable for Contempt, When — But Citation will be Withheld until Termination of Trial, When — Misconduct which Interferes with a Court in the Transaction of its Business.</p> <p>1. Where the publisher of a newspaper charges one of the parties to an action, then about to be tried, with misconduct with reference to the other party, and the criticism is of a character and is made in a manner calculated to prevent a fair trial, he is guilty of a contempt of court.</p> <p>2. But a citation will be withheld in such a case until the termination of the trial, where it appears that an immediate issuance of a citation might have the effect of giving one of the parties to the case an unfair advantage over the other.</p>

<p>CAPACITY OF AGED PARENTS TO EXECUTE DEEDS TO SONS.</p> <p>Deeds — Capacity to Execute Where of a Testamentary Character— Grantor Stiffening from Hemiplegia — Sons Made Beneficaries■ — • Action to Set Aside — Burden of Proof as to Undue Influence— Fiduciary Relations Where the Transaction is Between Parent and Child, and the Parent is Aged and Feeble — Presumption—Deeds can not be RevoTced, When.</p> <p>1. Where grantees were sons and the grantor was the father and no confidential or fiduciary relation has been proven, the mere relationship itself will raise no presumption of undue influence. The burden of proving undue influence is on plaintiff.</p> <p>2. A mere preponderance of evidence is not sufficient to set aside a deed, when attacked on the ground of undue influence. In such case the evidence must be clear and convincing.</p> <p>3. The fact that an aged grantor was afflicted with hemiplegia at the time he executed the deeds does not afford ground for setting the deeds aside, where the evidence otherwise fails to show incapacity either due to imbecility or mental weakness.</p> <p>4. Argument and persuasion, on- appeals to the bounty of the father, unless unfair or coupled with circumstances clearly indicating incapacity, lay .no foundation for a charge of undue influence.</p> <p>5. And where, as in this case, deeds are testamentary in character, the proper test of the capacity of the grantor is the capacity required to execute a will.</p>

<p>LOSS FROM DELAY IN CARRIAGE.</p> <p>Carriers — Liability of, for Unreasonable Delay in Transportation— Goods. Refused by Consignee — Measure of Consignor’s Damages— Necessary Averments in Petition — Failure to Allege Partnership.</p> <p>1. The implied contract of a carrier is to transport the goods with all convenient dispatch and deliver them within reasonable time, and is that of an ordinary bailee for hire, and failure so to do renders the carrier liable for only such damages as the shipper may have suffered from his negligence.</p> <p>2. A shipper of goods long delayed in transit.can not charge the carrier for their value as for conversion, if they have been safely kept and delivery tendered; his loss is the benefit of the transportation, and is measured by the decline which occurred in their market value between the date when they should have been delivered, if transported with reasonable dilligence, and the date of their actual delivery.</p> <p>3. Knowledge on the part of the carrier of the character of the goods with respect to damages likely ,to result from delay in transit should be alleged in an action for recovery of such damages.</p> <p>4. Where a partnership sues in the ordinary name which it has assumed, there should be an allegation that it is a partnership “formed for the purpose of carrying on a trade or business in this state.”</p>

In November, 1903, Hannah. M. M. Baumgartner, a widow, of Loramie township, Shelby county, Ohio, made what purported to be her last will and testament. It was drawn by a scrivener on .a printed will form consisting of one sheet folded in the middle so as to form four pages.

<p>INJURY TO ONE WALKING THROUGH A RAILWAY YARD.</p> <p>Negligence — Where a Young Woman toas Bun Down in a Railway Yard — Question as to Wheth'er She was a Trespasser Properly left to the Jury — Scope of Authority of Fireman and Braheman — Liability of Company for Negligence and Wantoness — Proximate Cause —Charge of Court.</p> <p>1. Where a plaintiff was injured while walking along a beaten path between railway tracks, which had been so used by a great number of people for many years, it is not error for the trial judge to refuse to declare as a matter of law that plaintiff was a trespasser, and to allow the jury to determine whether or not the railway company had waived the prohibition against passing through its yard and had extended permission to the public to use the path as a foot way, notwithstanding it was a longitudinal use and notwithstanding the presence of warning signs as to danger and against trespassing. '2. Before a master can be charged with, the consequences of a negligent or wanton act by a servant, it must appear that the act was within the scope of the servant’s authority.</p> <p>3. The evidence in the case at bar does not show that either the fireman or the head brakeman was authorized to open the cylinder cocks of the engine which was at rest, permitting an escape of steam which blinded and frightened plaintiff and caused her to step in front of another engine, which was moving and by which she was run down.</p> <p>4. The elimination in the charge to the jury of the acts of the operatives of the moving engine as the proximate cause of the accident was error, as was also failure to instruct on the rule with reference to the contemplation of consequences in determining the question of proximate cause.</p>

<p>ESTATES BY PURCHASE.</p> <p>Husband and Wife — Land Conveyed to Wife by Husband Through a Trustee — Course of Descent Following Wife’s Death — Deed can not be Attached by Parol for Purpose of Changing Line of Descent— Wills — Inoperative Residuary Clause.</p> <p>1. Lauds conveyed by a husband to his wife through a trustee, for a consideration of one dollar as expressed in each deed, come to the wife by purchase, and notwithstanding a manifest intention on the part of the husband to give the property to his wife, the deeds can not be attacked after her death for the purpose of changing the line of descent.</p> <p>2. A residuary clause which provides that “Whatever is left at last, if anything, you may give to the poor of the parish,” is void for uncertainty, and the residue of the estate must he distributed according to law. '</p>

<p>TESTAMENTARY TRUSTEES.</p> <p>Trusts and Trustees — Jurisdiction to Appoint a Testamentary Trustee —Conferred by Residence of Beneficiary — Sale of Real Estate in Another Coimty — -May be Ordered by the Probate Court, When — ■Sections 5981 and 5986.</p> <p>1. Under the law of Ohio the rules governing testamentary trusts and trustees are the same as those governing guardians and the administration of estates, and the provisions of Section 5981 and 5986 are simply directory as to what court shall appoint such a trustee.</p> <p>2. Where a testamentary trustee has been appointed by the probate court of the county where the will creating the trust was probated, the probate court of any county of the state where such will has been admitted to record has jurisdiction to appoint a testamentary trustee under said will, provided that at the time of the application for such appointment the beneficiary of the trust is a bona fide resident of the county in which the application is made.</p> <p>3. In a proper action brought for that purpose, the probate court of the county appointing a testamentary trustee has jurisdiction to order the sale of real estate belonging to the trust located in another county of the state.</p>