Volume 9 — Ohio Nisi Prius Reports, New Series

<p>AS TO CHARGES FOR. ADMINISTERING THE ESTATE OF A DECEDENT.</p> <p> Estates of Decedents'—Exceptions to Account of Executor—Charges for Repairs and for Permanent Improvements■—Vouchers as Distinguished from Receipts—Itemized Account Required as to Rents, Expenditures, etc.—Attorneys Fees for Services to the Estate and in Defending the Will. </p> <p>1. Where real estate is devised to certain persons, but the executor is given the management and control thereof for the benefit of the estate for five years after the death of the testatrix, he may charge the estate for such repairs as were necessary to maintain the rental value of such real estate'during said period, but the estate can not be charged with the cost of valuable improvements thereto.</p> <p>2. Where an executor has collected the rents from a business block and paid taxes, insurance and repairs thereon, his account must show each item of such receipt and expenditures, and where he merely charges himself with a certain amount as the net income therefrom, he will be required to file an itemized supplemental account. ' s</p> <p>3. The court does not determine the fees which an executor may pay his attorney, hut it will only allow him to charge the estate with reasonable attorney fees for such services as were necessary and proper in the settlement, of the estate.</p>

<p>ACTION FOR. LIQUIDATED DAMAGES FOR. VIOLATION OF A CONTRACT TO SELL GOODS AT A FIXED PRICE.</p> <p> Proprietary Articles—Contracts by Manufacturer with Vendees—Binding Them to Maintain a Fixed Schedule of Prices—Natural Monopolies %n Trade Secrets of Proprietary Articles—Not Analogous to the Monopoly of Patented or Copyrighted Articles—Restraint of Trade and Partial Restraints—Always Unlawful where Injuriously Affecting Public Interests. </p> <p>One who sells articles manufactured solely by him-is subject to the statutory and common law inhibitions against restraint of trade, and will not be protected in an effort to fix prices and control sales and sub-sales to wholesalers and retailers because of the alleged necessity of such control in order to protect him in the retail business which he has retained; and contracts which are confessedly part of a “system” of contracts, entered into by such a manufacturer with vendees whereby the said vendees are required to protect the fixed retail price, and to sell at retail only, and not to sell to other retail dealers who have not entered into a like contract, are not enforcible, and an action for liquidated damages on account of the breach of such a contract will not lie.</p>

<p>AS TO COUNTER-CLAIM AGAINST NOTES IN THE HANDS OF AN INNOCENT HOLDER.</p> <p> Destruction of Building by Fire—After Transfer but before Possession had been Given of the Property—Purchase Money Notes Transferred to Innocent Holder—■Counter-claim and Set-off. </p> <p>A judgment recovered by a grantee against a grantor on account of damages to the premises by fire, occurring after sale and transfer of the property but before possession had been given, can not be set up either as a counter-claim or set-off in an action brought on the purchase money notes and mortgage by an innocent holder, notwithstanding the grantee at the time of bringing his action for damages against the grantor had no notice or knowledge of the transfer by the grantor of said notes and mortgage.</p>

<p>INSURANCE OF BUILDING ON GROUND NOT OWNED IN FEE SIMPLE.</p> <p> Fire Insurance—Condition Rendering Policy Void—If Written on Building Standing on Land not Owned by the Insured—Parol Evidence as to Knowledge of Agent as to Title to the Land Inadmissible. </p> <p>A Are insurance policy' contained a condition that the “entire policy, unless by agreement endorsed hereon or added hereto, shall be void * * * if the subject of - the insurance be a building on ground not owned by the insured in fee simple,” and also a provision that no officer, agent or representative of the company should have power to waive any of the provisions or conditions of the policy “unless such waiver, if any, shall be written upon or attached to” the policy.</p> <p>Held: That unless reformed, such a policy can not, in the absence of-agreement or waiver endorsed thereon, be enforced as covering a building located on ground not owned in fee simple by the insured; and, in an action on such policy, parol- evidence is not admipsible to show that the facts as to title of the property were known to the agent of the insurer when he accepted the application for the insurance, delivered the policy and received the premium’.</p>

<p>CONFLICTING TITLES TO CANAL LANDS.</p> <p> Title—Conflicting Claims to the Twelve' Foot Strip Above and Outside of High-water Mark of a Canal Reservoir—hand Used for a Reservoir is Used for Canal Purposes—Grant of 1825. </p> <p>Where the state took possession of government land for canal purposes under the provisions of the act of Congress of May 24, 1825, the title of the holder of such land under a lease from the state is superior to that claimed under a patent subsequently issued by the United States.</p>

<p>AS TO FEES PAID FOR. RECOVERY OF TAXES ON OMITTED PROPERTY.</p> <p> Pleading—dn an Action for Recovery of Money Paid out of the County Treasury as Fees for Collection of Taxes on Omitted Property—No Cause of Action Stated, When. </p> <p>A petition for recovery of money paid out of the county treasury as attorneys’ fees for the collection of taxes on property omitted from the tax duplicate is demurrable when, it is sought to recover the whole, sum paid, and there is no offer to place the defendants in statu quo, and tkere is no allegation of fraud or mistake, but only the averment that the amount paid was in excess of the value of the services rendered.</p>

<p>FIXING VALUES OF A RIGHT-OF-WAY THROUGH A FARM.</p> <p> Eminent Domain—Interference with Farm Drainage by Building of Railway—Rule for Estimating Damages to Residue—General and Incidental Benefits—Competency of Testimony—Impressions of Jury on Tiew of Premises not Evidence—Charge of Court. </p> <p>1. In condemnation proceedings brought by a traction company seeking to appropriate a right-of-way through a farm, the owner must be paid for the land taken its fair market value at the ti.me it is taken, and testimony tending to introduce the element of probable benefit to the farm from the building of the road, or as to the price at which the farm may have been offered for sale is incompetent.</p> <p>2. Testimony as to interference with drainage pipes and destruction of a part of the underground drainage system of the farm is competent.</p> <p>3. It is not error to refuse to give a special charge, which in effect tells the jury that the impressions from viewing the premises was evidence and better evidence than the testimony of witnesses whose testimony may be in conflict therewith as to physical features and general facts relating to the' land.</p>

<p>THE LIEN OF AN ALLOWANCE OF ALIMONY.</p> <p>Fraudulent Conveyance—Where Made to Defeat a Claim of Alimony— Lien of the Alloioance of Alimony—Devise Based on Fraudulent Conveyance—Husband and Wife.</p> <p>Where a conveyance of an interest in land is made by a husband after an allowance to his wife of temporary alimony, and the evidence establishes that it was made to defeat her claim, the court will order that payment be made to the wife from the proceeds arising from the land in partition proceedings: first, the wife’s inchoate dower; second, the allowance made to her of alimony pendente lite; and third, the amount of permanent alimony awarded to her.</p>

<p>DISCHARGE OF DEFENDANT BY DISCHARGE OF JURY.</p> <p> Criminal Law—Insufficient Ground -for Discharging a Jury—Accused Once Placed in Jeopardy and can not he again Brought to Trial. </p> <p>An entry in a criminal case, reciting that the “case came on for trial to jury, and after due consideration the jury failed to agree and' were discharged and the case continued until the January Term,” does not state a sufficient reason for the discharge of the jury, and operates as a discharge of the accused from further trial.</p>

<p>FUNCTION OF AN EXHIBIT ATTACHED TO A PLEADING.</p> <p> Pleading—Exhibit Attached to Petition—Sufficiency of Pleading and Construction of Written Instrument, Mow Determined—Section 5085. . </p> <p>1. Upon demurrer, the court can not look to an exhibit to a pleading, attached thereto in accordance with the requirements of Section 5085, Revised. Statutes, but not made a part of the pleading,' to determine either the sufficiency of the pleading, or whether the pleader has correctly interpreted the written instrument and averred accordingly.</p> <p>2. The sufficiency of the pleading must be determined by its own allegations, unaided by the exhibit, and whether the pleader has correctly interpreted his written instrument must be determined upon an issue raised by an appropriate plea, or by objection or demurrer to the evidence upon the ground of variance.</p> <p>3. A copy of an instrument attached and filed with a pleading under Section 5085, is not a part of the pleading, and .can not be looked to, on demurrer; but it is intended for the information of the adverse party and as a substitute for oyer under the former practice.</p>

<p>UNNATURAL RESENTMENT AKIN TO MENTAL INFIRMITY.</p> <p> Undue Influence—Conduct Amounting Thereto where the Object of the Influence is Suffering from Unnatural Resentment—Promoting Family Differences may Constitute Undue Influence—Warranting the Setting Aside of a Deed.- </p> <p>1. A mental condition which causes forgetfulness of the ties of blood as a result of real or fancied wrongs, although not amounting technically to unsoundness of mind, should be taken into consideration in determining whether the making of a deed or will was a free and voluntary act; and where by misrepresentation or concealment of facts unnatural and unwarranted resentment toward members of the family is increased, undue influence is thereby exerted to the detriment of those against whom it is felt, however unimportant may be the same course of conduct under other circumstances.</p> <p>2. Where it appears that such resentment was felt by a father against two of his sons and their wives, and that this feeling was fanned and excited by the conduct, both active and passive, of a third son, to whom the father conveyed all of his property without substantial consideration, or understanding the full force and effect of the instrument which he was signing, a court will set the deed aside.</p>

<p>OBTAINING THE DEPOSIT OF MONEY IN A BANK BY FALSE PRETENSES.</p> <p>False Pretenses—Money Deposited in a Bank by Reason of—Title Passes to the Bank■—Director of the Bank Who Induced ■ the Deposit— “Obtains” the Money Though not Receiving it Personally—Criminal Law—Sections 7076 and 7088.</p> <p>1. Where an indictment charges that by reason of false pretenses on the part of the defendant money was deposited in a bank, it will be held to have been prima facie a general deposit, the title to which passed to the bank.</p> <p>2. If the accused by means of false pretenses with intent to defraud induced the prosecuting witness to deposit money in a. bank of which the accused was a director, the money was “obtained” by the accused within the meaning of Section 7076 ' notwithstanding it was not received by him personally.*</p>

<p>PROSECUTION FOR THE SALE OF NEAR BEER.</p> <p> Liquor Laws—Evidence as to the Keeping of a Place where Intoxicating Liquors are Sold, Insufficient When—Beverage Containing Less than One-half of One Per Cent, of Alcohol not an Intoxicating Liquor. </p> <p>1. Testimony to the effect that one accused of selling intoxicating liquor in a county voted dry under the Rose law continued to use bar fixtures, and had an internal revenue license of a date prior to the local option election still tacked on his wall, and a certain individual seemed to act strangely after leaving his place, is not sufficient to convict of keeping a place where intoxicating liquors are sold.</p> <p>2. A beverage containing no more than four-tenths of one per cent, of alcohol is not an intoxicating liquor within the meaning of the Rose law.</p>

<p>INCONSISTENCY BETWEEN CONTRACT OF PURCHASE AND RECITALS OF DEED.</p> <p> Covenant Against Incumbrances—Does not Include Taxes and Assessments, When—Title—Breach of Warranty. </p> <p>Where a contract for the purchase and sale of real estate is ambiguous as to whether taxes and assessments becoming due after the succeeding June 20 are' to .be paid by the grantor or the grantee, but the deed provides in terms that such taxes and assessments shall be paid'by the grantee, an action by him will not lie for recovery of the sums so paid on the ground of breach of the covenant against incumbrances.</p>

<p>CONSTRUCTION OF STATUTE FORFEITING DEVISE FOR. FAILURE TO PROBATE WILL.</p> <p> Devise—Provision for Forfeiture of, Construed—Hoto Forfeiture may tie Declared—Widow o’f Heir Precluded from Asserting Title to Realty—Estopped from Setting tip Defense—Burden of Proof-Wills—Section 59J3—Trust Relations. </p> <p>1. Section 5943, providing for forfeiture of a devise for failure for three years' on the part of the devisee to present the will for probate, is punitive in effect and must be strictly construed.</p> <p>2. The provision for forfeiture contained in this section does not declare a rule of property, and mere delay or lapse of time does' not start this provision into operation, but to do so requires that an action shall be brought and a decree entered declaring the forfeiture.</p> <p>3. A son who has enjoyed the full confidence of his mother and has acted as her business agent, and who had full ■ knowledge of the existence of a will left by his deceased brother which had never been probated, and which devised to his mother .the interest of such in certain lands, is precluded from asserting against their mother the forfeiture óf such devise because of the lapse of the three year period for probaté; nor, following the decease of such son intestate as to such interest, can his widow assert title thereto.</p> <p>4. The burden of proof; upon the assertion of the defense of forfeiture of a devise for failure to probate the will, is upon the contending heir at law and his successors in title.</p>

<p>APPLICATION OF THE AMENDED STATUTE RELATING TO THE REFILING OF CHATTEL MORTGAGES.</p> <p> Chattel Mortgages'—Construction of Amendment with Reference to Refiling of—Purpose of the Act—Analogous to Limitations Governing Rights of Action. </p> <p>Chattel mortgages on file on April 28, 1908, the date of the taking-effect of 98 O. L., 230, amending Section 4155 by changing the periods of refiling such mortgages from one to three years, are governed by the provisions of this amendment, and are not rendered invalid by failure to refile them within the one year period in force at the time they were executed.</p>

<p>PROCURING DEPOSITS FOR. AN INSOLVENT BANK.</p> <p>False Pretenses—Elements of the Offense—Failure to Slate a Nexus between the Parties•—Instofficient Description of the Thing Obtained— Indictment for Obtaining Certain Notes—Advertising Cvrcular an “Instrument” by which Money may be Unlawfully Obtained—Three Tears Grouping Provision of the Embezzlement Statute not a Limitation—As to Calling an Accused Person before the Grand Jury■— Stenographer’s Report of such Testimony not Available to- Sim— Criminal Law—Sections 1016, 68J¡C¿ and 1195.</p> <p>1. Inasmuch as the offense of false pretenses is not complete .unless the accused obtained money or property of another for himself by false pretenses as to past or existing facts with intent to defraud, the inducing of the owner to part with his property to a person other than the accused—in this case to deposit money in a bank in which the accused was a director—is not an "obtaining” within the meaning of the statute.</p> <p>2. An indictment averring that certain officers of a banking company obtained money from another corporation in which they were interested, by false representations as to the financial status of the latter, but not stating by allegation, innuendo or explanatory matter how the banking company was induced to part with its money-states no nexus between any of the three parties.</p> <p>3. An indictment for false pretenses will not lie where the description of the property obtained is not intelligible to ordinary minds Insufficiently particular to identify the property with certainty.</p> <p>4. A pamphlet which is a mere advertisement or commendatory circular, while not an “instrument” in the legal and technical meaning-of that word, yet falls within that term as used in Section 7076, making unlawful the sending of any “letter, telegram or other instrument.”'</p> <p>5. The statute defining embezzlement (Section 6842), and providing that "if within the three years prior to the inception of the prosecution” the amount embezzled equals or exceeds thirty-five dollars the defendant shall be imprisoned in the penitentiary, is not a limitation as to prosecution, but is merely authority for grouping smaller items to make the offense a felony instead of a misdemeanor.</p> <p>6. A motion' will not lie to compel an official stenographer to produce for the use of the accused a copy of testimony given by the accused before the grand jury which indicted him.</p> <p>7. An averment that certain descriptive features of property embezzled “are unknown to the grand jurors” is proper, but does not excuse the state for failing to procure a description thereof.</p> <p>8. Unpaid interest can not be the subject of larceny, embezzlement, or the obtaining money by false pretenses.</p>

<p>APPEAL FROM AN ALLOWANCE OF LABOR. CLAIMS.</p> <p>Preferred Claims of Operatives—Performance of Some "Work Pone by Operatives does not Make a Corporation Officer or Stockholder an Operative—Appeals from the Probate Court and Bonds for Appeal— Failure to Name Some of the Original Petitioners in the Bond does not Render the Appeal Ineffectual as to Them—Sections 6355, 640V and 6408.</p> <p>1. Where the applicants for an order by the probate court are numerous, a properly perfected appeal by a number of them “and others” is effectual as to all; and. the appeal may be from the whole or a part of the order or judgment complained of, and notice of intention to appeal is not necessary.</p> <p>2. A stockholder and director in a corporation who served as bookkeeper and sometimes as shipping clerk can not be regarded as an operative within the meáning of the statute giving preference to labor claims, nor can a president and general manager of a corporation be classed as an operative because he sametimes performed . manual labor for the company.</p>

<p>AS TO WHETHER. THE SIGNATURE TO A WILL IS AT THE END.</p> <p> Wills—Instrument not Invalidated by Six Inch Space Between Dis-positive and Testimonium Clauses—Section 5916. </p> <p>Where a will is drawn on one of the printed blanks in ordinary use, and the dispositive portion together with the'- clause naming 'the executor follow immediately after the printed matter at the beginning, the fact that a blank space of six- inches intervenes before the testimonium clause is reached, does not render the will invalid, where the signature of the testator appears directly after the testimonium clause in the space provided therefor ahd under this is the attesting clause and the signatures of the witnesses.</p>

<p>FOR. RECOVERY OF INHERITANCE FROM STEP-FATHER.</p> <p> Parent and Child—Fund Inherited by Step-children—Used for Their Support by their Step-father—Action for its Recovery as a Trust Fund—Provisions of Section 6053 not Applicable, When—Jurisdiction Under Summary Proceedings. </p> <p>1. The fact that step-children have an inheritance of their own does not relieve their step-father from the obligation to support them, and the inheritance remains impressed with a trust in their favor after passing into his custody and can be followed into his hands.</p> <p>2. But where the step-father received the money innocently and mingled it .with his own under the impression that his promise to support the children was a valid consideration therefor, a complaint filed by them in the probate court after attaining their majority, charging under Section 6053 that the fund had been concealed, embezzled or conveyed away by their step-father, does not give jurisdiction to that court or to the common pleas on appeal to render judgment against the step-father for the amount involved.</p>

<p>ROSE LAW NOT PROHIBITIVE OF THE SALE OF NONINTOXICATING MALT LIQUORS.</p> <p>Liquor Laws-—Sales on Noiv-intoxicating Malt Liquors not Prohibited under the lióse Lato—Failure to Establish Venue—Near Beer—.9.9 O: L., 35.</p> <p>The sale of malt liquor as a beverage is not within the'’inhibition of the Rose county local option law, where the percentage of alcohol contained in said liquor is so small as to render it non-intoxicating.</p>

<p>ACCOUNTABILITY OF GUARDIAN TO ESTATE OF WARD.</p> <p>Guardian and Ward—•Trial of Cause Involving Guardian’s Accounts— Upon Presentation of the Evidence a Cause is Submitted—Death of Imbecile Ward after Presentation of Evidence but before Rendition of Judgment Does not Abate the Catóse—Proceedings to Remove Guardian may be brought by a Stranger—What must be Included in the Guardian’s Inventory—Guardian will be Charged with the Fain- Market Value of Property of the Ward Sold by Him in Another State—And for Attorney's Fees Paid for Fomented Litigation or Claims Barred by the Statute of Limitations—And for Unlawful Disbursements to Prospective Heirs—And for Interest on Funds of the Ward Used by Him—Guardian Incompetent to Testify as to Value of Services Rendered by Him for the Ward before his Appointment—Conduct of Guardian lohich Constitutes Cause for Removal.</p> <p>1. A cause is submitted' to a court when the presentation of evidence is closed; thereafter, the court may or may not hear oral argument, or receive and consider briefs of counsel at his discretion.</p> <p>2. Where a court has heard excex>tions to an inventory, and to an account of the guardian of an imbecile, and has received evidence on grounds for removal of the guardian, and the presentation of evidence on the three matters consolidated has fully closed after three days of hearing, and the imbecile ward dies within a few days thereafter and before the opinion of the court was announced or a judgment ordered, the cause of action does not thereby abate, and there is no necessity of the revival of the action in the name of the representatives of the deceased imbecile; and the trial pourt thereafter can render judgment, of the date when the evidence ivas closed, as a sort of a nunc pro tunc order, the same be-' ing authorized by In re Estate of Jarrett, 42 O. S., 199.</p> <p>3. Under the statutes of this state, any person ' interested though a stranger and neither a creditor or relative has large capacity, on proper grounds, as next friend of an imbecile under guárdianship in the probate court, to bring and prosecute an action for the removal of such guardian, or to file-and maintain exceptions to an inventory and an account made or rendered by such guardian in the probate court, and especially so, when the imbeéile; has no next of kin resident of the state, or none willing or sufficiently interested in his person or estate to undertake such action; a bond for costs being a sufficient safeguard 'against meddling or usurpation.</p> <p>4. A guardian of an imbecile must list and value in his inventory of his ward’s estate, every item of personal property, including doubtful judgments, claims, notes and accounts, and each parcel of real estate belonging to his said ward; anything less is subject' to exception.</p> <p>5. A guardian of an imbecile appointed by an Ohio court, who sells real estate of his ward located in the state of Arkansas, without the order of the probate court of Ohio to whom such guardian must in .law account, and without proceedings and an order of sale of the proper court of the state in which such real estate is situated, will be charged on accounting in the probate court of Ohio with ■ what the evidence shows to be the fair market value of said lands at the time of sale, even if said amount so found by thé court be more or greater than the amount received by the guardian; and no subsequent, irregular, defective or invalid proceedings and order by the laws'of the foreign state, approving ■ said sale, will Cure said unauthorized sale or prevent such charge on accounting of ‘ such guardian in the probate court of Ohio.</p> <p>6. The guardian of an imbecile has no lawful right to pay a fee to an attorney for what the evidence shows to have been fomented litigation relative to the assets of his ward’s estate, or to pay any claim for attorney fees against his ward barred by the statute of limitations; any and all such amounts so paid by said guardian are not proper credits, and should and will be charged against the guardian on accounting to the probate court. .</p> <p>7. When it is shown by the evidence that the guardian of an imbecile treated the property of his ward as his own, placed the funds of the ward in bank in his individual name, paid his own debts with said funds and used them in speculation in land, taking the title thereof in his own name, and keeping no account of the trust property as trust property, such guardian will, on accounting in the probate court, be charged with the lawful rate of interest on all the funds which came in his hands from the date of the reception of such funds by said guardian to the date of his accounting.</p> <p>S. A guardian of an imbecile has no lawful right .to make disbursements of the funds of his ward to prospective heirs of the;ward, nor to make loans of the funds of his ward to said prospective, heirs without mortgage security on real estate as provided by statute, and all such amounts so disbursed or loaned to said prospective heirs will be charged against such guardian on his aecount- . . ing to the probate court as so much cash on hand with its ap- ." propriate interest.</p> <p>9.. A guardian of an imbecile in an accounting before the probate court is an incompetent witness to prove an alleged claim for services rendered by said guardian to and for said ward prior to the. date of his appointment as guardian.</p> <p>10. When on hearing exceptions to the inventory and exceptions to the • account of a guardian of an imbecile, it is shown to the court by the evidence educed that said guardian in the management of said . estate has mixed and mingled the funds of' said estate with, his own personal funds, has paid claims for services legal and otherwise without question or investigation, has converted his ward’s funds to his own use by buying real estate with his ward|s money and taking the title in his own name, and has claimed enormous fees for alleged services, and has actually appropriated the amount claimed, such person will be considered not fit, suitable or- competent to represent an estate in a fiduciary capacity, and such conduct constitutes sufficient grounds for his removal; and the court, on hearing of such exceptions to inventory and to the account, though there be no proper petition for the removal of such guardian before the court, will for said conduct, on its own motion, remove such guardian and cancel ,and annul his letters of authority.</p>

<p>AS TO INDEBTEDNESS CONTRACTED BY AN EXECUTRIX.</p> <p> Estates of Decedents'—Claim, for Money Advanced for Tames—Benefit Resulting to the Estate—Improvidence of the Executrix—Presentation of Claim not Necessary—Subrogation—Equity—Evidence. </p> <p>1. Where suit is brought in the first cause of action on a promissory note, and in a second cause of action on the same claim as for money loaned, and the plaintiff elects to stand upon his second cause of action, the fact of the execution of the note can not be considered in determining the case.</p> <p>2. The rule of immunity of estates against indebtedness incurred by the personal representatives does not apply where the estate and the minor heirs derived a benefit from the use by a third person of his own money, at the reguest of the executrix, in paying taxes and thus saving the property from sacrifice; and this is true notwithstanding the maladministration of the executrix.</p> <p>3. The nature of a claim of this character is such that it is not necessary to its validity 'that it should have been formally presented to the executrix within the prescribed time.</p>

<p>VALIDITY OF AGREEMENT TO PAY ADDITIONAL COMPENSATION FOR. EXTRAORDINARY SERVICES.</p> <p>Employment—Inducement' to Bender Extraordinary Services—Contract Providing Additional Compensation os a Condition for the Rendering of Such Services—Not Void for Want of Consideration, When—Agreements to Give more than ivas Due lohich are not Nudum Pactum.</p> <p>Inasmuch, as the putting forth by an employe of “his utmost efforts” requires longer hours of service and the doing of everything possible for the benefit of the employer at Avhatever cost of comfort, time and labor, a contract binding the employer to pay an employe at the end of a stipulated term a sum in addition to his regular compensation on condition that he should put forth his utmost efforts is not void for want of consideration.</p>

<p>AS TO RECEIVERSHIP ON PETITION OF A MINORITY STOCKHOLDER..</p> <p>Corporations—Right of a Minority Stockholder to Maintain an Action for a Receiver—Allegations Which are Good Against Demurrer— Pleading.</p> <p>A petition by a minority stockholder for the appointment of a receiver, accounting and dissolution of the corporation is good against demurrer, when there are allegations of fraudulent conduct on the part of the managing directors of the company who are also the majority stockholders, appropriation of the assets of the company by such stockholders, and that the business is being run at a loss.</p>

<p>ACTION FOR. RECOVERY ON GUARANTEED STOCK.</p> <p> Pleading—Agreement to Pay Pace Value for Guaranteed Stock upon Demand on a Certain Day—Necessary Allegations in a Petition to Enforce the Agreement. </p> <p>Where stock sold under an agreement whereby the seller guarantees the payment of dividends and binds himself to take the stock hack at its face value upon demand at the end of a stipulated period, it is the duty of the purchaser, in the event he desires to hold the seller to his agreement, to appear at his office on the day named and tender back the stock and demand payment for the stock; and a petition for .recovery under such an agreement is demurrable which does not allege such demand and tender back of the stock on the date named in the agreement.</p>

<p>INDUCING OFFENSES AGAINST THE LIQUOR LAWS.</p> <p> Intoxicating Liquors—Procurement of Sales for the Purpose of Assessing Dow Tax against the Sellers—Testimony of Men so Engaged without Weight—Entry on Doio Tax Duplicate not Prima Facie Evidence of Traffic in Intoxicating Liquors—Household Goods can . not he Distrained for Dow Tax—Rights of Innocent Chattel Mortgagees. </p> <p>1. The employment by the state dairy and food department of men known as inspectors who are charged with the duty of-inducing keepers and inmates of brothels to sell intoxicating liquor, in order that Dow law taxes may he assessed against them, is not in harmony with the manifest intention of the Legislature in-enacting statutes forbidding such sales and providing penalties for violation thereof; and a single sale, made under such circumstances, does not raise a presumption that other like sales were made, nor does it afford proof that the business of trafficking in intoxicating liquors was being carried on within the meaning of . the Dow law.</p> <p>2. The testimony of men' thus employed to ensnare women into making unlawful sales of intoxicating liquor is entitled to no greater credence than that" of the women against whom the information is laid.</p> <p>S. An erroneous entry on a Dow tax duplicate does not constituteprima facie evidence, within the meaning of Section 1104, that’ the person so characterized is engaged in the business of trafficking in intoxicating liquor.</p> <p>4. Household goods, such as beds, chairs, carpets, etc., are not such goods and chattels as are used in the business of trafficking in iih toxicating liquor, and as against a mortgagee in good faith can not he distrained for non-payment of Dow tax.</p>

<p>RIGHT OF LESSEE TO REMOVE FIXTURES.</p> <p>Fixtures—Covenants Restricting Right to Remove Trade Fixtures Strictly Construed—As Between Landlord and Tenant Construction Liberal Toioard the Tenant—Intention to Annex Fixture to Property—How Intention is to be Determined—Automatic Fire Sprinkler System a Trade Fixture and May be Removed by Lessee.</p> <p>A lease for a term of years contained a covenant that “the lessee further agrees to equip the buildings of the- within demised premises, front and rear, with an automatic fire sprinkler system at his own expense.” The premises demised were described as “the factory buildings erected thereon, and all additions thereto that may be erected thereon during the continuance of this lease,” and the lease expressly provided that the building was to be used “as a wholesale liquor, and rectifying house,” in which business- the lessee was engaged. The lessee equipped the building with an automatic fire sprinkler system, as provided in the lease, at an expense of $13,000. The system consisted of a series of pipes sus.pended from the ceilings throughout the building by means of hangers or hooks, which pipes were supplied with automatic fire sprinklers, fed by means of gravity and pressure tanks, and connected with the city water mains, the tanks being located on the roof of the building, and supported by steel beams and encased in a fire proof enclosure. In an action by the lessor to enjoin the receivers of the lessee from removing said fire sprinkling system from the premises, Held.</p> <p>1. That such automatic fire sprinkler system was a trade fixture properly removable by the receivers, on surrender of the premises.</p> <p>2. Covenants restricting or claiming to restrict the tenant’s ordinary right to remove trade fixtures are always strictly construed .and can not be extended by implication.</p> <p>3. As between landlord and tenant, the law requires a liberal construction in favor of the tenant, the object being to encourage trade and industry.</p> <p>4. In determining whether or not. a certain article is a trade fixture, the intention of annexation is a primary consideration.</p> <p>5. Intention does not mean tenant’s secret intention, but is to be deduced from mode of attachment to the realty, the character of the article and the purpose for which it was put in place.</p>

<p>EMPLOYMENT OF SPECIAL COUNSEL FOR. COUNTY OFFICERS.</p> <p> County Officers—May he Granted the Assistance of Special Counsel, When—¡Employment of such Counsel to Prosecute Actions for Recovery of Taxes—Auditor more than a Nominal Party—Injunction—Sections 12V/. and 81/5. </p> <p>Where It becomes necessary for a county officer in the proper administration of the duties of his office to procure assistance of counsel or attorney at law other than the prosecuting attorney, he may under Section 1274, Revised Statutes, employ such counsel or attorney for any special occasion provided the county commissioners assent to and order such employment and fix the compensation. State, ex rel Cline, v. Cannon, 12 C. C.—N. S., 162 (affinned by the Supreme Qourt without report. 80 O. S.), distinguished.</p>

<p>CONDEMNATION BY SCHOOL BOARDS.</p> <p> Eminent Domain—¡Bxeroise of Right of, by School Board—Necessary Steps to Give the Probate Court Jurisdiction—What Constitutes Necessity for the Land Sought to be Appropriated. </p> <p>1. The probate court acquires jurisdiction in a condemnation proceeding brought by a school board by determining before the jury is summoned: First, that the school board has passed the necessary resolution; second, the inability of the board to agree with the owner on the question of price; third, the necessity for the appropriation for the purpose described- in the petition; and, fourth, ' that all parties having an interest in the property have been legally notified.</p> <p>■>. Necessity for ’acquiring the property is not shown and jurisdiction by the court is not obtained, where it appears that the property is not now needed for either building or play-ground purposes, bul the real object of the board in seeking to acquire the property is ’to prevent the building thereon of a blacksmith shop adjoining the school grounds.</p>

<p>THE WORDS “LEGAL HEIRS” GIVEN TECHNICAL MEANING.</p> <p> Wills—Construction of the Words "Legal Heirs”—Descent of Property to Half-sister under Section J/15!), Relating to Estates Coming by Purchase. </p> <p>The language of the will in this case indicates that the testator used the words “legal heirs” in their strict technical sense, and meant thereby to indicate the person or persons appointed by law to succeed to the estate, and the property devised having come by purchase descends to the half-sister, Eliza Reif, under the provisions of Section 4159, Revised Statutes.</p>

<p>AS TO APPRAISAL OF FIRE LOSS.</p> <p> Fire Insurance—Evidence as to Reason for Failing to Demand an Appraisal—Not Competent, When—Action which is Dess than Denial of Liability or Waiver of Conditions by Insurance Company. </p> <p>A reply by an insurance company to a proof of loss, that 'it has reason to believe the cash value of the loss was much less and the salvage much more than claimed by the insured, is not a denial of liability by the company or a waiver of the provision of the policy for an appraisal, but amounts to a disagreement with the insured as to the amount of loss sustained and calls for an appraisal, and in a subsequent action on the policy it is not competent for the insured to give his reasons for not demanding an appraisal.</p>

<p>PROSECUTION FOR. POISONING A DOMESTIC ANIMAL.</p> <p> Criminal Law—Language Used in Describing an Offense—Not Absolutely Essential that the Words of the Statute be Employed in the Indictment—Word “Horse” as Used in the Statutes—Sections 6850 and 6S5Í2. </p> <p>Tbe words “horse” is used in the statutes (Section 6850) in the generic sense and embraces the word “pony,” and an indictment charging that the defendant unlawfully, willfully and maliciously did administer a large amount of poison to a certain pony is not open to demurrer.</p>

<p>NEGLIGENCE IN FUMIGATION OF PREMISES BY HEALTH OFFICERS.</p> <p>Municipal Corporations—Disinfection of Premises by Health Officers a ' Governmental Function—And Municipality not Liable for Negligence in Use of Fumigating Apparatus—Public Health and Protection Against Contageous Diseases—Section 1586-lljl.</p> <p>1. A municipal corporation acting through a board of health, which within the scope of its statutory powers fumigates premises wherein .a person has been sick with a contagious disease, acts in a ' governmental capacity.</p> <p>2. Such municipal corporation is not liable in an action for damages, for negligence of the board of health and its agents, whereby property was destroyed through the careless use of fumigating apparatus while, disinfecting premises wherein a person had been sick with a contagious disease.</p>

<p>PROSECUTION FOR. KEEPING A GAMBLING ROOM.</p> <p> Criminal Law—Failure of Foreman to Sign Full Names to Indictment . —Motion to Quasli—Plea in Abatement—Duplicity—Sections 7249 and 7250. </p> <p>1. A motion to quash does not lie to an indictment to which the foreman of the grand jury did not sign his full name.</p> <p>2. An indictment charging that on a certain day and during the interval between that date and the date of the finding of the indictment the defendant kept a room for the purpose of gambling, is not bad for duplicity.</p>

<p>REPLEVIN BY AN ASSIGNEE OF GOODS HELD UNDER. A CONDITIONAL SALES CONTRACT.</p> <p> Conditional Sales—Replevin of Goods from the Vendee—And from the Assignee of the Vendee—Effect of Failure to File the Contract of Sale—Assignee in Better Position than the Vendee—Holds the Goods as Though Seined on Execution—Measure of Damages to Assignee where the Goods have been Taken Possession of by the Vendor and no Redelivery Bond Given—Sections /¡150-2-3-Ji. </p> <p>1. An action in replevin can not be maintained to recover possession of chattels sold under a contract of conditional sale unless the vendor before the commencement of the action, tender or return to the vendee the amount of money or other property received by the vendor under the contract, less a reasonable sum for the use of the chattel by the vendee, and for any damages done to the chattel while'in the possession of the vendee, which sum of money or value in property, to be retained by the vendor shall not exceed fifty per cent, of the amount received under the contract.</p> <p>2. While the vendee under a conditional sales contract acquires no new or additional rights to the chattels held by him under such contract, by reason of the failure of the vendor to file the contract as provided by Section 4155-2, Bates’ Revised Statutes, the assignee for the benefit of creditors of the vendee under such a contract holds the chattels as though they were seized upon a levy and execution; and a failure to file the contract of sale or a copy thereof by the vendor as required under said section before the deed of assignment is filed places the assignee in better and superior position with reference to such chattels than that of the assignor. (Case of York Mfg. Co. v. Cassel, 201 U. S., 344, noted and distinguished.)</p> <p>3. The measure of damages in an action of replevin by a vendor under a condition sale contract against the assignee in trust for the benefit of creditors, where the chattels .have been taken into the possession of the vendor and no re-delivery bond given, is the fair market value of the chattels at the time and place of the taking, by virtue of the replevin proceedings.</p>

<p>COMPENSATION FOR. RAISING TIMBER SUNK IN THE OHIO RIVER.</p> <p> Strays and, Drifts—Logs Sunk in the Ohio River—Compensation for Raising and Caring for—Salvage and the Pay of Salvors—Rule where Property is Lost on Land—Sections 4364-60 and 6639. </p> <p>1. Saw logs which are imbedded in the mud at the bottom of the Ohio river and whose location is unknown to their owner are not“adrift” on the Ohio river.</p> <p>2. One who finds such logs, raises them to the surface, transports them to the Ohio side and cares for them until the owner takes them from the possession of such finder, is entitled to recover a reasonable compensation for his services and expenses, and is not limited to the compensation fixed by Section 4364-60, Revised Statutes.</p>

<p>AS TO TAXATION OF LAND OWNED AND LEASED BY A MUNICIPALITY.</p> <p>Taxation of Wharf Property and Other Land—Claimed to he Exempt— But Occupied under Leases from the Municipality Holding Title— Correction of Errors on Tax Duplicate—Powers of Taxation—Exemption Must he in Unmistakable Terms—Enforcing Payment of Taxes by Sale of Public Property not Available Against a Municipality—Injunction against Sale—Municipality Entitled to Credit for Levies made for Municipal Purposes.</p> <p>1. A county auditor has power to correct all errors appearing on the tax lists; his grand duplicate is prima facie correct, and the burden of proof is on one attacking it to show that there are errors in its items.</p> <p>2. In general the means and in all cases the methods of raising revenue from a tax are by the Constitution delegated to the General Assembly.</p> <p>8. The sole power to exempt any ground from taxation is vested in the General Assembly. There is no implied exemption. Exemption from taxation must be expressed in clear and unmistakable terms.</p> <p>4. The General Assembly has exempted from taxation all' public grounds used exclusively^ for public purposes. The use “for public purposes” is the test of the right of exemption.</p> <p>5. The use by a coal company of public wharf grounds on the Ohio river for handling its own coal for its own customers at its own price, and in no way controlled by the authority of the state, is not for an exclusive public purpose; and this is true notwithstanding the fáct that this river coal cheapened the price of coal generally by its competition with railroad coal.</p> <p>6. A warehouse operated by a railroad company, in which there are tracks connecting with the main line of the railroad, may or may not be taxed as personalty under the laws of Ohio—depending on its use; and to make such property purely railroad property for taxing purposes, its use must be necessary to the daily operation of the railroad. That its use is a necessity or a convenience to the railroad ig npt enough. The true test is, and a line should be drawn where the railroad ceases its relation of common carrier to the freight handled and begins its relation of warehouseman.</p> <p>7. The public ground upon which is erected a warehouse operated by a railroad company may or may not be exempt from taxation, depending upon its use. The test is whether the use is for an exclusive public purpose. When the freight handled in such a warehouse is owned by various consignees, and the charges are fixed by the railroad company, and the handling is in no way controlled by the authority of the state, such an use is not for an exclusive public purpose and such ground is not exempt, notwithstanding the fact that the railroad company has certain sovereign powers, such an eminent domain.</p> <p>8. The General Assembly by an attempted leasing of public ground for a term of years to a tenant, for an use which is not an exclusive public purpose, can not destroy a public trust. Such leases are not void, but rather voidable at the option of the public evidenced by a public necessity. Such a tenant of the public, has no relief in damages on account of such an earlier termination of his letting. The rights of such a tenant end where public necessity intervenes.</p> <p>9. During the period of such a letting the public ground so held is subject to the lien for taxes the same as if owned by an individual.</p> <p>10. If no method has been provided by the General Assembly for sale of property in case of non-payment of taxes upon it, the courts can give no relief, and whenever by the issues raised in a given case a defect appears, courts can only point out the error.</p> <p>11. Enforcing payment of taxes by sale of the property can only be resorted to where the property is owned by individuals. No public ground can now be sold to pay a tax. If the General Assembly should provide such a remedy, it will be but just that the municipality against which the property is listed for taxation be credited with the levies made for municipal purposes, and be charged only with the levies made for state, county and school district purposes.</p> <p>12. An attempted sale of public ground to pay a tax properly charged against it will be enjoined.</p>

<p>PRIORITY BETWEEN^DIFFERENT ISSUES OF RECEIVER’S CERTIFICATES.</p> <p> Receiverships;—Authority for a Loan to Complete Contracts—Disinguished from the Doubtful Power of the Court to Authorize a Loan to Continue the Business—Notice■—Priority. </p> <p>Where authority is given for an issue of receiver’s certificates for' the purpose of completing contracts on hand, and subsequently a second issue is authorized for the purpose of continuing the business generally by the receiver, the holders of the first issue are entitled to priority in payment over the holders of the second issue.</p>

<p>PLEADING LIBELOUS MATTER.</p> <p>Libel and Slander—Pleader Privileged to Use Defamatory Matter— Even Though False and Malicious, When—English Rule Applicable and to be Liberally Construed—Privilege Applies with Reference to. Statements having Reference to any Proper Party to the Proceeding.</p> <p>1. The rule which protects from an action for libel or slander one publishing in a judicial proceeding matter of a defamatory character, which is relevant and pertinent-to the issue, should not be impaired by a'close construction, but where the matter has legitimate reference to the inquiry reasonably full freedom should be allowed to a pleader, and he should not be held liable for including in his pleading matters not relevant in the strictest legal and technical sense.</p> <p>2. Where one is charged as a conspirator with others named as defendants, he is a proper though not a necessary party, and what is relevant and pertinent as to the other defendants is relevant and pertinent as to him, and allegations which have a direct relation to the cause or subject-matter of the inquiry is relevant as to him.</p>

<p>SUPPRESSION OF A NUISANCE BY A VILLAGE.</p> <p> Municipal Corporations—Power of, to Prohibit a Nuisance in the Form of Offensive Odors—Sufficiency of Affidavit—Evidence which Establishes the Existence of a Nuisance—Collateral Issues—Section 1536-100. </p> <p>1, Under Section 7 of tile Ohio Municipal Code, Division II, Chapter I, Subdivision III, municipal corporations have the power to pass an ordinance, prohibiting the manufacture or production within the corporation limits of any fertilizer or other product from which in the process of manufacture or production offensive or unwholesome odors arise cr are given off.</p> <p>2. An affidavit in due form which charges that the accused “did assist in the manufacture of a certain product, to-wit, fertilizer stock, from which in the process of manufacture offensive odors were given off to the annoyance of the public” is a valid affidavit in that it sets forth all the facts essential to constitute the offense charged under the ordinance, and clearly advises the accused of that with which he is charged.</p> <p>3. In a criminal prosecution the fact at issue is the guilt or innocence of the accused; hence, in a prosecution for the violation of a village ordinance prohibiting the production of offensive odors, evidence was rightfully excluded at the trial which sought to show that others are engaged in similar manufactures.</p> <p>4. For the same reason, where no one claims any pecuniary damages because of the odors, evidence is inadmissible to show the effect of the odors on the market value and rental value of property in the village; so many other elements enter into the question of value as to make this issue a collateral one.</p> <p>5. Under evidence which tends to show that an odor is offensive, that it reached and permeated the village council chamber some 1,000 feet distant from the origin of the odor, that it reached the public school building where the village board of education was in session, was noticeable on the village streets and reached and permeated homes in the village, such odor can be held to be a public nuisance.</p>

<p>NON-RESIDENCE AS A GROUND OF ATTACHMENT.</p> <p>Attachment and Garnishment—Jurisdiction of Justice of the Peace— When Non-residence as a Ground of Attachment is Available—Section 6489—What the Affidavit Must Contain.</p> <p>1. In view of the fact that a justice of the peace has jurisdiction throughout the county, the conclusion is justified from the imperfect averments in this case that the defendant is a non-resident of the county.</p> <p>2. Non-residence is made a ground for attachment under Section 6489 only when the claim is a debt or demand arising on a contract, and the averment in an affidavit for attachment that the claim is for money had and received does not bring the case within the statute.</p>

<p>APPEARANCE IN ATTACHMENT PROCEEDINGS,</p> <p> Attachment and Garnishment—Motion to Discharge Attachment does not Effect Appearance, When—Jurisdiction. </p> <p>Inasmuch as the effect of a motion depends upon what the court is asked to do and not upon what is averred, the setting out of impossible and unavailable reasons in-a motion to discharge an attachment does not give the motion the effect of entering an appearance.</p>

<p>AS TO SALE OF PLUMAGE OF THE WHITE HERON.</p> <p>Glassification of Birds—White Heron a Game Bird—Prosecution for Having Its Plumage on Sale—No Offense Stated in Affidavit—Bills of Exceptions Need not he Journalized—Intention of the Legislar . ture as an Element in Construing Statutes—Game Laws—Intention as an Element of the Grime—99 O. L., 369-370.</p> <p>1. It is no longer necessary, when a bill of exceptions has been properly filed in a case, that there be a journal entry showing that the bill was allowed, but the evidence afforded by the bill itself that it has been corrected, allowed and signed by the trial court is sufficient.</p> <p>2. While the intention of the Legislature in enacting a statute is not the determining factor in reaching the proper construction to place upon it, yet in reaching a conclusion as to what the Legislature really did enact, the court may look at the intent for light and may' also look at the preamble.</p> <p>3. The white heron is a game bird, and an affidavit charging that the accused did have in his possession and for the purpose of sale one aigrette, the plumage of a heron, does not state an offense under Sections 22 and 25 of the act of May 9, 1908.</p>

<p>LOSS OF SERVICES.</p> <p>An action will not lie for loss of services of a wife wbo was instantly killed in an accident.</p>

<p>DIVISION OF BRIDGE FUND BETWEEN CITY AND COUNTY.</p> <p>Constitutional Law•—Classification of Cities—Enactment of Special Laws Limited 6y the Constitution only to Those which Confer Corporate Power—Proper Test as to Whether a Law is General or Local—Taxation—Special Levies for Bridges—-Sections 2824, 1536-100, 1536-100 (18), and 1536-131.</p> <p>1. Section 2824, authorizing a levy of taxes for county bridges, is not rendered unconstitutional by the provision that one-half of the proportion of said bridge fund, collected upon property in certain cities of a designated class, shall be paid into the county treasury and expended by such city in the building and repairing of bridges; such a provision on the contrary constitutes a mere agency through which the money thus raised is to be expended, and is a matter of indifference to the people of the state generally.</p> <p>2. Moreover the proceeds of such a tax levy constitute a trust fund, which can be expended for no other purpose than that for which the levy was made and collected; and a prosecuting attorney who has waited until the money is in the treasury is estopped from enjoining its expenditure for the purpose designated, even if it were true that the levying and collection of such a tax could have been enjoined originally.</p>

<p>LIABILITY OF A WIFE FOR TUITION FEES FOR HER CHILD.</p> <p>Husband and Wife—Exemption of Wife under Married Woman’s Aot— From all Liability for Family Expenses'—Section 8110.</p> <p>In the absence of a contract with a wife, or circumstances that raise a presumption that she intended to charge her separate estate therefor, no legal liability, arises against her even for necessaries required by the family; and tuition fees for services rendered to her child under a contract entered into by her husband can not be made a charge against her individually.</p>

<p>CONSTRUCTION OF ACT TO ABOLISH DANGEROUS GRADE CROSSINGS.</p> <p>Crossings—Location of Highway May be Changed—Where that is the Practical Method for Avoiding a Dangerous Crossing at Grade— Action to JSnjoin Change May be Maintained by Abutting Owners Appearing as Tax-payers, When—Provision for Hearing as to Damages—Sections 3337-8 et seq., 2304 and 2315 et seq.</p> <p>1. Where the prosecuting attorney declines to take action, owners of abutting lands may petition for an injunction against the abolishing of a grade crossing in the manner proposed.</p> <p>2. The authority granted by Sections 3337-8 et seq., to county commissioners and a railway company to abolish a dangerous railway crossing and substitute therefor a crossing other than at grade is not limited to the substitution of an overhead or undergrade crossing at the point of the old intersection, but a detour may be made for a short distance in the highway in- order to reach a more practical location for the new crossing.</p> <p>3. The rule that where a statute is incorporated into another by reference, the effect is the same as though the provisions of the former had been re-enacted into the latter so far as they form part of the second enactment, continues in force the repealed Sections 2304 ■et seq. to and including Section 2526, so far as concerns the right of property owners to be heard in proceedings before county commissioners as to the damages they will sustain if the proposed plan for abolishing a grade crossing is carried out.</p>

<p>PROSECUTION AGAINST FEEDING WET DISTILLERY WASTE TO COWS.</p> <p>Regulation of the Sale of Milk—Constitutionality of the Act—Prohibiting the Feeding of Wet Distillery Waste to Milch Cows—Venue— 99 O. L., 289.</p> <p>1. Venue is not laid by locating the offense on a certain city street, or as having been committed “on the West Fork road, near Cole-rain pike,” without adding the county and state.</p> <p>2. The statute forbidding the sale of milk from cows fed on wet distillery waste is not unreasonable in its provisions, and being clearly within the power of the Legislature to pass, is constitutional.</p> <p>3. Moreover it is not void for uncertainty, inasmuch as the prohibition is absolute, rather than against an indefinite but not free use of this waste as feed for milch cows.</p>

<p>STATUS OF COMMON LAW MARRIAGES IN OHIO.</p> <p>Divorce and Alimony—Validity of Common Daw Marriages in Ohio— Proof Necessary to Establish a Common Daw Marriage—Publicity and Reputation as Bearing on the Question of Intent—Proof of Contract of Marriage by Direct Evidence as Distinguished from Presumptive Proof Arising from the Acts of the Parties.</p> <p>1. A common law marriage is a valid marriage in Ohio.</p> <p>2. A marriage contract, reduced to writing and signed and followed by cohabitation, reputation and publicity, constitutes an indisputable common law marriage.</p> <p>3. The binding character of such a marriage is not affected by proof that the wife had previously sustained a meretricious relation with another man.</p>

<p>RELEVANCY OF A CHARGE AS TO CONCURRENT NEGLIGENCE.</p> <p> Charge of Court—Relevancy of Specific Charges to be Tested by the Pleadings—Presumption as to Relevancy—Judicial Discretion in the Matter of Specific Charges—Negligence, Contributory and Concurrent, with Reference to Damage to Property—Administrator Succeeds Original Plaintiff—No Proof Required of His Appointment, When. </p> <p>1. In tlie absence of a showing that a charge of court did not pertain to any issue made in the pleadings or evidence, a presumption arises that it was relevant; and generally speaking it is not error to assume that the issues were as the parties permitted them to remain in the pleadings.</p> <p>2. Where the petition charges negligence and the answer is a mere general denial, the fact that some evidence was offered without objection which suggested contributory or concurrent negligence affords ground for a charge on that issue, if in the discretion of the ■ court it seems to be necessary; but a refusal to give such a charge is error only when the request that it be given was made at the proper time and the issue of contributory negligence was raised by the pleadings.</p> <p>3. Where a case is revived in the name of the administrator of the original plaintiff, the question of his appointment becomes a determined fact and proof thereof is unnecessary, in the absence of any allegations or specific denial of the appointment in the pleadings.</p>

<p>ADMINISTRATION OF THE ESTATE OF A FOREIGNER.</p> <p>Estates of Decedents’—Right of Administration Where the Decedent was a Citizen of Italy—Treaty Requirements Supreme—Evidence as to the Provisions of Treaties—Claim for Wrongful Death Part of Special Estate of Decedent—Sections 5994, 6005, 6134 and 6135.</p> <p>1. A claim for wrongful death is a chose in action, and as such is property and a part of the special estate of the decedent, to he recovered in the name of the administrator for the benefit of the beneficiaries named in the statute.</p> <p>2. Treaty provisions are supreme, and it is the imperative duty of judicial tribunals to recognize rights which arise thereunder.</p> <p>3. Evidence in the form of printed copies of treaties is superfluous, inasmuch as courts take judicial notice of the provisions of treaties entered into with our own government.</p> <p>4. The treaty between the United States and the Argentine Republic provides that the consul of that government shall have the right to intervene in the administration of the estate of a decedent who was a citizen of that country, and under the most favored nation clause of the Italian treaty the same right extends to an Italian consul in the case of the death in this country of a citizen of Italy, notwithstanding the provisions of Section 6005 as to whom letters of administration shall be granted.</p>

<p>INSURABLE INTEREST IN. BUILDING WHERE EQUITABLE INTEREST ONLY IS HELD IN THE LAND.</p> <p> Fire Inswance—Condition of Policy Requiring Ownership of the Ground ■—Satisfied by an Equitable Interest Therein—Construction of the Phrase, Sole and Unconditional Owner. </p> <p>Tlie ownership of an equitable interest in real estate is sufficient to confer an insurable interest in the building standing on said property, notwithstanding the policy issued thereon contained the condition that “this policy shall be void if the interest of the insured in the premises be other than sole and unconditional,” and “this policy shall be void if the building insured stands upon ground not owned by the insured in fee simple.”</p>

<p>DIVISION OF PROFITS OF A LAND SYNDICATE.</p> <p> Judicial Sales—What a Sheriff Sells under bevy Against an Individual Interest in Realty Owned by a Syndicate—When Profits may be Said to have Begun—Division of Profits—What Oonstitutes the Capital of a Syndicate—Construction of Contracts. </p> <p>1. When a sheriff sells the undivided interest of a member of a syndi: cate in a designated part of the syndicate property, the purchaser does not acquire the undivided interest of said member in the entire syndicate assets; the value of such a purchase depends upon the relation of the part bought to the entire assets of the syndicate, only to be ascertained by an accounting and a trustee of the syndicate property has no right to treat such a purchaser as the owner of the undivided interest of said member in the entire syndicate assets.</p> <p>2. A trustee acts at his peril. At any time and at all times it is his duty to ask the aid of the courts in any matter respecting the trust estate or property to be administered and the rights of the parties in interest. All pei-sons having the money of others in their hands to distribute must see to it that such money reaches the proper hands. If a mistake be made such persons will be required to pay it a second time, or oftener until it reaches the proper person.</p> <p>3. In interpreting a word or phrase in a contract, heed must be given to the entire agreement and its subject-matter.</p> <p>4. The matter contributed by the members of a syndicate is its capital, whether the same be money, chattels, time, skill or other matter.</p> <p>5. Usually profits begin when and where the capital yields a net increase. Such increase is profit. This rule will obtain unless the parties agree otherwise. But any departure from this rule must be clear, definite and certain, and where a word or a phrase is used in the agreement which does not clearly, definitely and certainly indicate such a departure, this rule will obtain.</p>

<p>NOTE EXECUTED WITH FRAUDULENT INTENT NOT COLLECTIBLE BY PROMISSEE.</p> <p> Promissory Note—Action on, Does not Lie—Where Its Execution was in Furtherance of a Fraudulent Intent—Estoppel—Evidence as to Lada of Consideration. </p> <p>1. Pacts stated which do not support a promissory note where consideration is specifically put in issue.</p> <p>2. Inasmuch as an action will not lie on a note executed in furtherance of a scheme to defraud creditors, the administrator of the promisee is estopped from prosecuting such an action by evidence of fraudulent intent imported into the case, although estoppel was not pleaded.</p>

<p>LOSS OF FIRE PROTECTION THROUGH SHUTTING OFF OF WATER.</p> <p>Negligence—Alleged to have Resulted in Loss of Fire Protection— Water Turned off—Proximate Cause.</p> <p>The allegation that the defendants negligently shut off the water from the pipe passing plaintiff’s property, and as a consequence plaintiff’s building burned through lack of fire protection, states facts which standing alone are too remote to constitute a cause of action.</p>

<p>PEDESTRIAN INJURED AT A RAILWAY CROSSING.</p> <p> Negligence—Duty of One About to Cross Railway Tracks—With Reference to Looking and Listeni/ng—Directed Verdict for Railway Company. </p> <p>A pedestrian who stops at a distance of fifteen feet from a railway crossing and looks for approaching trains in both directions, and then attempts to pass over the crossing without looking again as he comes near to the rails, is guilty of negligence, and a motion will lie to direct a verdict for the defendant railway company in an action to recover on account of injuries from being struck by a train under such circumstances.</p>

<p>OLD LETTERS AS PROOF OF HEIRSHIP BY INTESTACY.</p> <p> Descent—Decedent Intestate—Search for Next of Kin in Ireland—Determination as Between Conflicting Claimants Based upon a Package of Old Letters—Ancient Documents. </p> <p>A package of letters dated from twenty-nine to thirty-five years ago and bearing all the appearance of age, found wrapped together in a dresser drawer of the decedent by his administrator, immediately following his death and before any one else had entered the house, are competent as evidence in establishing heirship.</p>

<p>ACTION BY AN EMPLOYE ON HIS EMPLOYERS’ LIABILITY POLICY.</p> <p> Liability Insurance—Contract Held to be a Policy of Indemnity Against Loss, and Not to Pay a Liability—Injured Employe Can Not Maintain an Action Against the Company—Nor Improve His Situation by Making the Action Equitable. </p> <p>1. An employers’ liability policy containing the provision that “no action shall lie against the company to recover for any loss under this policy, unless it shall be brought by the assured for loss actually sustained and paid in money by him, in satisfaction of a judgment, after trial of the issue; nor unless such action is brought within ninety days after final judgment against him has been satisfied,” is a contract of indemnity against loss, and not a contract to pay a liability.</p> <p>2. An injured employe of the insured, who has recovered a judgment against his' employer, can not maintain an action on such policy directly against the insurance company, because (1) the obligations of the policy do not extend beyond the two contracting parties; (2) because there is no jural relation between the injured employe and the insurance company; and (3) because the undertaking of the company is only to indemnify for loss actually sustained by satisfaction of judgment.</p> <p>3. The injured employe can not enhance his situation by bringing an action equitable in form, because (1) he has no equity and the company owes no equity; and (2) because the liability of the company is at law, and to give the employe an action in equity would be to make the company liable to him, before it is liable to his employer with whom alone it contracted.</p>

<p>AS TO MISCONDUCT OF PROSECUTING ATTORNEY IN ARGUMENT TO JURY.</p> <p>Criminal -Law—Allusions in Argument as to Failwre to Call Witnesses as to. Character—Not Prejudicial where the Defendant has Himself Placed His Character in Issue—Misconduct—Granting of Mercy—Opening TJp Verdicts t>y Examination of the Jurors.</p> <p>1. Where by his own testimony introduced in chief a defendant has shown himself to be a gambler, thief and bigamist, and that for several years he has had no honest means of livelihood, a reference by the prosecuting attorney in his argument to the jury to the fact that he had introduced no evidence establishing or tending to establish his good character, is not prejudicial and therefore not misconduct of a character requiring the granting of a new trial.</p> <p>2. The power to grant or withhold mercy is entirely within the discretion of the jury, and it is proper for the court only, and not counsel, to refer to their discretion in that matter; hut where counsel for the defendant first referred to the granting of mercy, and the jury followed his suggestion, it can not he claimed that a reference to the subject by the prosecuting attorney prejudiced the defendant in any way.</p> <p>3; While it was very improper for the prosecuting attorney to say to the jury that if they brought in a certain verdict they ought to go to jail, and it was perhaps the duty of the court oh its own initiative to have interrupted the argument at that point and cautioned the jury, yet in the absence of any objection to the remark, or any reason for believing that it resulted in prejudice to the defendant, it does not constitute ground for granting a new trial.</p> <p>4. It is not good practice to permit a verdict by a jury to he investigated and questioned by afiidavits and testimony of the jurors themselves as to what consideration they gave certain arguments of counsel.</p>

<p>RIGHTS OF AN ABUTTER. ON A CUL DE SAC.</p> <p> Abutting Owner—Rights of, in the Street—Ingress and Egress Can Not he Interfered With Without Compensation—Street Crossed hy 'Five Railway Tracies—Injunction. </p> <p>1. The property right in the highway, of one whose lands abut thereon, is bottomed upon the broad principle -that the right of property in general is not limited to the tangible subject-matter thereof, but’ includes the right of user and enjoyment of the tangible thing. It reguires this to complete the orbit of the right.</p> <p>2. Where lands abut upon a cul de sac, the appendant easement of ingress and egress extends to all that part of such street lying between such lands and the first connecting thoroughfare.</p> <p>3. Where the placing of railway tracks across that part of such street so impressed with the easement will materially impair the easement, the construction thereof will be enjoined until compensation is made to the land owner.</p>

<p>AS TO THE BUILDING OF AN ELEVATED RAILWAY TRACK ACROSS A PUBLIC LANDING.</p> <p>Railways—Easement for an Elevated Track Across a Public Landing— Eminent Domain—Grade Grossings—Section 8283-1 <md 99 O. L„ 589.</p> <p>1. Sections 3283 and 3283a as amended May 9th, 1908 (99 O. L., 589), authorize a railroad company, in proceeding to exerc.ise the power of eminent domain through the action of its board of directors, to appropriate an easement for an elevated track across a public landing heretofore dedicated for such landing; provided, however, that the mode and manner of the construction of such elevated track be agreed upon between the railroad company and the council of the municipality wherein the landing is located. In such event the grant of the right to cross comes from the Legislature and not from the municipal council.</p> <p>2. Such a proposed structure is not one declared necessary by the municipality for the purpose of abolishing a grade crossing. Hence, S’ection 3283-1, providing that where a municipality seeks to abolish a grade crossing such question shall in certain events and before final action be submitted to a vote of the people, is not applicable to such proposed structure.</p>

<p>PROSECUTION UNDER. THE VALENTINE ANTI-TRUST LAW.</p> <p>Trusts, the Valentine Anti-trust haw and Indictments Thereunder— Constitutionality of the Section Providing a Penalty for Conspiracy Against Trade—Criminal Liability of Corporations—Discrimination in Penalties—Judge-made Law.</p> <p>1. Corporations are included within the criminal penalties of the Valentine anti-trust law.</p> <p>2. A corporation will not be heard to complain that the section of this act providing penalties for conspiracy against trade is unconstitutional because it is discriminatory in that imprisonment may be imposed upon an individual but can not be imposed upon a corporation.</p>

<p>TIME WITHIN WHICH TO FILE APPEAL FROM JUSTICE OF THE PEACE.</p> <p> Jurisdiction on Appeal—Time Expires for Filing Transcript from Justice of the Peace, When—Sections. 4951 and 6585. </p> <p>Where the transcript from a justice of the peace is not delivered to the clerk of the court of common pleas on or before the thirtieth day from the rendition' of the judgment, jurisdiction is not conferred and a motion to dismiss the appeal must be granted.</p>

<p>AS TO AUTHORITY FOR. DRAWING BILL OF EXCHANGE.</p> <p> Bill of Exchange—Authority of General Sales Agent to Draw—Proof as to Alterations After Bill was Executed—Construction of an Unusual Transaction. </p> <p>1. The burden 'of proving that the agent acting in this case had authority to execute a bill of exchange in the manner in which he did is not sustained by the evidence.</p> <p>2. Where proof was made by depositions taken long before trial that a material alteration had been made in the instrument sued on, it became the duty of the plaintiff to produce evidence to show that it.was an innocent holder of the instrument after the alterations had been made; and where this was not done, a court is not justified in granting what would be in effect a new trial in order to permit of the introduction as newly discovered evidence, the evi- - deuce which was in the possession of the party in the first instance.</p>

<p>INCORPORATION OF VILLAGES.</p> <p>Villages—Proceedings for the Incorporation of—What the Petition Must Contain—Authority of the Commissioners and Jurisdiction of the Court—Pleading—Fund^-Injunction—Sections 1536-8,1536-10, 1536-17 and 1536-20.</p> <p>Township trustees do not have final jurisdiction in the matter of proceedings for the incorporation of a village, but a review of their proceedings may be had on error and the court may also determine the merits of the controversy so far as relates to boundaries, whether the territory within the proposed limits is unreasonably large or small, and whether it is right, just and equitable that the petition be granted.</p>

<p>SERVICE UPON ONE CLAIMING TO BE AGENT.</p> <p> Agency—Service of Summons on One Holding Himself out as Agent of Defendant put Having no Authority so to Do. </p> <p>The relation of principal and agent is not created by a lack of care— even ordinary care—on the part of the alleged principal in preventing one who claimed to be his agent from holding himself out as such.</p>

<p>MUNICIPAL REGULATION OF BILL BOARDS.</p> <p> BUI Boards—Regulation of, by Ordinance—Extent to Which a Municipality May Go—Unwarranted Interference with the Use of Private Property—Provisions of the Cincinnati Building Code ,which are Illegal. </p> <p>1. Acting under the powers conferred by paragraph 1m of Section 7 of the municipal code of Chio, the council of the city of Cincinnati has the right to regulate bill boards, as well as other structures, in order to conserve the safety and welfare of the community.</p> <p>2. But regulations with this end in view can not be retroactive, and the council has no right to regulate any existing bill boards, except such as are out of repair and a menace to the public safety, when such bill boards violated no ordinance at the time when they were erected.</p> <p>3. Council may prescribe such rules for the erection of future bill boards as are reasonable and uniform in their application to all kindred subjects—that is, such as do not unwarrantedly interfere with the use of private property and do not make one rule for a bill board and another for a fence which is in all respects of like character with the bill board.</p> <p>4. Within these principles paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (o) and (r) of Section 7, Title 5, chapter 1, of the building code of the city of Cincinnati, as passed May 10, 1909, are illegal and void.</p>

<p>WIFE’S INTEREST IN FRATERNAL®.INSURANCE POLICY.</p> <p> Life Insurance—Beneficiaries Under Policies Issued by Fraternal Orders—Certificate of National Union Not Rendered Contestable Because Mother of the Insured is Named as Beneficiary—Wife Without Vested Interest—But May Recover Premiums Paid Out of Ser Own Funds—Section 9J¡67, General Code. </p> <p>1. A policy of insurance issued by the fraternal organization known as the National Union is not made contestable by the fact that the mother of the insured is named as the beneficiary, notwithstanding she is not a member of the family of the insured or dependent upon him for support.</p> <p>2. A wife has no vested interest in a certificate of insurance issued by a fraternal order, and another beneficiary may be substituted for her without her consent; but if it appear that premiums on the policy were paid by her out of her personal earnings either regularly or occasionally, a court will order that the amounts so paid by her be returned to her out of the proceeds of the policy.</p>

<p>RIGHT-OF-WAY BY PRESCRIPTION.</p> <p> Easement for a Way—Use of Way Not Adverse and Right to Use Oan Not he Claimed hy Prescription, When—Burden of Proof as to .Character of Use. </p> <p>A claim of a right-of-way by prescription over the ■ lands of another will not be upheld where it appears that the way was enclosed by gates, and the owner of the land complained when the gates were left open and threatened to shut them up permanently if care was not taken to close them, and the alleged way was not a well defined track, but a number of tracks spread over a width of seventy feet. The use of such a way is by license or permission, and such use may be enjoined by the owner of the lands traversed.</p>

<p>COLLATERAL ATTACK ON A JUDGMENT.</p> <p> Judgments—Jurisdiction of the Court Rendering Can Rot he Collaterally Attacked or the Judgment Impeached, When—Title Quieted Against the Claims of Minors. </p> <p>Where the record of the prohate court discloses that, in a proceeding brought by an administrator, to sell property to pay debts, the court found that “the other defendants,” which included certain minors “have been legally served with summons,” said minors will not he permitted in a subsequent action in foreclosure, brought against the purchaser at the administrator’s sale, to deny that the probate court obtained jurisdiction over them or to assert rights as tenants in common in the premises.</p>

<p>COMPENSATION TO LAND OWNER. ON ACCOUNT OF THE OPENING OF A NEW ROAD.</p> <p>County Roads—Damages to Dand Owners Where Dand is Taken and, to Residue—Appeal from the Action of "Viewers—Meaning of the Word “Owner”—Sections 4642, 4645, 4646 and 4647.</p> <p>1. The statutes give no authority to road viewers to assess damages to where no part of the abutting owner’s land has been included in the proposed road, and having no power in the premises it follows that an appeal will not lie from the refusal of the viewers to make an assessment of damages under such circumstances.</p> <p>2. For the same reason the bar specified in Section 4647 is not operative against an owner who filed his application for damages at a time when it was supposed that some portion of his land would be taken for the road.</p>

<p>AS TO CHANGES IN ATTEMPTED ACCEPTANCE OF A CONTRACT.</p> <p> Contracts of Sale and Purchase—Variance in Acceptance which was not Material—Reasonable Time to Fulfill under Existing Conditions. </p> <p>A contract for a quantity of salt to be shipped to the plaintiffs at Memphis was not varied or qualified in its acceptance by the request that the salt be shipped *to W at Memphis instead of the plaintiffs, where no change was made as to the parties to the contract or their liability, and business reasons for the request were given.</p>

<p>FAILURE OF ELECTRIC LIGHTS IN STREET CAR. RESULTS IN INJURY TO PASSENGER.</p> <p> Negligence—Injury to Passenger Leaving a Street Gar—Duty of Passenger to Use Faculties of Sight and Hearing. </p> <p>Where a woman who is a passenger on a street car is blinded for the moment by the trolley running off the wire causing the lights to go out, and while in that condition attempts to alight from the car and pass around the rear end and in so doing falls, over a projecting fender and is injured, she is guilty of contributory negligence, and an action for damages on account of the injury will not lie.</p>

<p>LIABILITY OF SURETIES ON BOND OF STATE TREASURER.</p> <p>Interest—Unlawfully Earned on Public Funds—Office and Officer_ Principal and Surety—Liability of Sureties for State Treasurer.</p> <p>1. An appropriation by a state treasurer of interest earned by public funds unlawfully deposited by him in banks, is a breach of his official bond for which his sureties can be held to respond.</p> <p>2. Interest earned by public moneys, unlawfully deposited in banks by the State Treasurer in whose custody such moneys have been placed, does not constitute a fund separate from the principal fund, but as soon as earned becomes the lawful money of the state and a part of the principal fund; and the contention that the official bond of the treasurer does not cover such unlawful interest earnings can not be maintained.</p>

<p>RECOVERY OF INTEREST COLLECTED BY A COUNTY TREASURER.</p> <p> Interest—Paid to County Treasurer—On Public Funds Unlawfully Deposited—Action for Recovery of—Lies Against Estates of Deceased Treasurer and His Bondsmen, Notwithstanding No Claim was Presented to His Administrator—Application of the Statute of Limitations—Section Z921, General Code. </p> <p>1. An action hy the state on relation of the prosecuting attorney against a county treasurer and his bondsmen, for recovery of interest on public funds illegally deposited by the treasurer in various banks, is subject to the ten years provision of the statute of limitations.</p> <p>2. Inasmuch as the increment follows the principal, a treasurer is as much bound to account for the interest earned by public funds coming into his hands as he is to account for the principal itself.</p> <p>3. The fact that such interest was earned .by the unlawful deposit of public funds in different banks does not bar recovery on the bond of the treasurer for the amount of interest so received.</p> <p>4. The fact that the treasurer and some of his bondsmen are deceased,</p> <p>and no claim on account of interest so received was made to their administrators within eighteen months, is not a bar to recovery on the treasurer’s bond.</p>

<p>AS TO ALLEGED OVER COLLECTIONS FOR GAS FROM CONSUMERS IN AKRON.</p> <p> Construction of Decree of Court—As to the Right of a Cos Company to Withdraw from Deposit a Percentage of Its Collections—Impounded to Await a Determination of a Legal Rate to be Charged Consumers for Cas. </p> <p>Under the decree of court permitting the East Ohio Gas Company to collect from consumers in the city of Akron the full amount claimed to be due from them, provided that one-third of the amount so collected should be deposited in hank pending a determination of the amount which could he legally charged and a settlement with the consumers on .that,basis, injunction will not lie to prevent the withdrawal by the gas company of the amount thus impounded, where it appears that the Supreme Court has held that the company can not be compelled to furnish gas at the rate demanded and' is at liberty to discontinue its service and withdraw from the , city. .</p>

<p>INJURY TO A TENANT BY A FALL ON DEFECTIVE STEPS.</p> <p> Landlord and Tenant—Negligence in the Maintenance of Defective Steps—Duty of Tenant to Malee Repairs on Failure of Landlord so to Do—Cost to he Recovered for Breach of Contract—Tenant Saving Knowledge of Defective Conditions Assumes Risle of Injury. </p> <p>1. If by the terms of a contract of letting by a landlord to a tenant, -the former as a part of the consideration of renting agrees to make specific repairs of defects in the premises but fails so to do, it is the duty of the tenant for his own convenience and protection against such defective conditions to make the necessary repairs and recover the cost so incurred in an action for breach of contract.</p> <p>2. If a tenant, knowing of defective conditions in the premises occupied, continues in occupation,, he assumes the risk of injury to himself and others, and he can not hold-his landlord in tort for damages resulting from the defects.</p>

<p>RIGHTS OF ABUTTER IN SPACE UNDER SIDEWALK.</p> <p> Streets and Sidewallcs—New Uses of Municipal Highways—To Meet the Crowing Necessities of Dense Populations—Public Uses which are not Inconsistent with Use for Travel are Legitimate—Placing of Pipes for Steam Heat and Power Purposes—Use Sanctioned by Council Precludes Inquiry as to Propriety by Court—Bights of Abutters—Legitimate Uses of Streets Classified. </p> <p>1. The trend of legislative enactments, and of authoritative judicial decisions, is to enlarge the rights of the public in the uses of municipal' highways, to meet the growing necessities of dense population and of congested business; and the earlier view, that streets must he limited to such uses as were originally intended by the dedication, has given way to the more expanded view, that streets may be used for such necessary public uses as are not destructive of, or inconsistent with, the original purpose of travel and transportation.</p> <p>2. If the proposed use of a street is a public use, and is not inconsistent with the use thereof for travel and transportation, it is a legitimate street use; and when sanctioned by the Legislature and by the municipal authorities, the right to make such use of the street may be granted to a public service corporation created for that purpose.</p> <p>3. The placing of a pipe under the sidewalk of a municipal highway, to carry steam for heat and power, “to the public generally,” is a public service and is a legitimate street use.</p> <p>i. Where such use of the street is being made, under sanction of the statute, Section 1536-100, and under grant by ordinance of the city council, and pursuant to the direction of the board of public service, the court can not inquire as to the propriéty or the mode of such authorized use.</p> <p>5. The use by the owner of an abutting lot of an excavation beneath the sidewalk rests upon license or permission, and does not vest in the lot owner such juristic right as will enable him to prevent the placing of such steam pipe in and through such excavation, when authorized by the proper authorities.</p>

<p>LIABILITY OF HUSBAND FOR FUNERAL EXPENSES OF WIFE WHO WAS SEEKING A DIVORCE.</p> <p> Husband and wife—Divorce and Alimony—Funeral Expenses Where Wife Dies Pending Action for Divorce—Husband Liable </p> <p>A husband is liable for the funeral expenses of his wife who was living separate and apart from him and whose death occurred while an action for divorce was pending and after an allowance had been made to her of alimony pendente lite.</p>

<p>AS TO THE ENTERING OF APPEARANCE BY A RECEIVER.</p> <p> Receiver—Filing of a Demurrer by—Not an Entry of Appearance,When —Court May Take Judicial Notice that the Receiver was Appointed in Another County. </p> <p>1. Tbe filing of a demurrer by a receiver to a petition filed in a court other than tbe one in wbicb tbe receiver was appointed does not enter tbe appearance of sucb receiver.</p> <p>2. No court other than tbe one in wbicb tbe receiver was appointed can authorize a suit against tbe receiver.</p> <p>3. It is a condition precedent to tbe bringing of a suit against a receiver that leave be obtained for that purpose from tbe court appointing sucb receiver; and this rule applies to a receiver of an electric railway company.</p>

<p>FUNERAL EXPENSES OF WIFE.</p> <p> Husband and Wife—Estates of Deceased Persons—Husband Seeks to Recover for Expenses Incurred for Wife’s Funeral. </p> <p>Where both a husband and his wife are possessed of ample estates, and the husband pays out of his own funds the funeral expenses of the wife, he is not entitled to reimbursement from her estate.</p>

<p>COMPENSATION TO ABUTTER. FOR. LAYING SWITCH TRACK IN STREET.</p> <p> Rights in Street—Of Abutting Owner and of the Public—Owner's Rights as Distinguished from Mere Privileges H~e Enjoys in the Streets— Compensation to Abutter for Laying Track in Street—Appropriar tion—Charge of Court—Error. </p> <p>1. The rights of the public in municipal highways include any and all public uses thereof, not inconsistent with the uses originally intended.</p> <p>2. The rights appendant to abutting lands are those of access, of light, and of air; and use by the abutter of the land within the highway —whether surface, sub-surface or super-surface—is a mere license or an acquiescense therein by the public authorities, and must give way to any legitimate public use.</p> <p>3. In an action to appropriate from an abutting owner his property right in a street for the purpose of laying a railway switch thereon, it is error to fail to define to the jury the property right involved and in effect to instruct the jury to compensate the defendant for the loss of mere privileges for which he has no right to compensation.</p>

<p>PRIORITY AS BETWEEN VENDOR’S AND MORTGAGE LIENS.</p> <p> Liens—Mortgage, Vendor’s and Mechanic’s—Vendor’s Priority Lost by Asserting Sis Claim, as a Mortgagee—Notice to Owner of Property of the Talcing of a Mechanic’s Lien. </p> <p>1. A vendor of realty upon which there is an unpaid balance can not claim the priority of a vendor’s lien, where his claim is asserted as that of a mortgagee under a second mortgage given by the purchaser.</p> <p>2. A mechanic’s lien is not enforcible where it is not stated on the face of the petition that notice in writing of such lien was given to the owner of the property.</p>

<p>ACTIONS AGAINST FOREIGN CORPORATIONS.</p> <p>Jurisdiction—Over Foreign Corporations in Causes of Action not Arising in This State—Question Properly Raised by Motion—Liability to Attachment—Sections 178 et seq. and 11819, General Code.</p> <p>1. Whether ,the service had upon a defendant corporation has conferred jurisdiction upon the court is a question which may be properly raised by motion to quash the service and set aside the return.</p> <p>2. Service of process upon a foreign corporation, in an action arising in another state but instituted by a citizen of this state, is sufficient to give a court of the state jurisdiction over the defendant corporation in such an action where the service was had upon the person designated by the defendant company as one upon whom process against the corporation may be served within the state.</p>

<p>NECESSARIES AND LIABILITY THEREFOR.</p> <p>Attachment for Necessaries—Home in the Name of Wife—Water Heater Purchased, by Husband in His Own Name—Failure of Warranty—• Wife Liable for the Heater—Sections 10253, 11725, 11738 and 11819, General Oode.</p> <p>1. Where the home belongs to the wife, the husband in purchasing an article therefor may be held to have acted as the agent of his wife, notwithstanding the article was charged to him individually.</p> <p>2. The word “necessaries” is not used in the Ohio statutes in the narrow sense of articles which are indispensable, but it includes all articles which are within the circumstances of the family and will enable them to live conveniently and decently according to the custom of those among whom they reside; and under this construction of the word the water heating apparatus used in a dwelling of sufficient convenience and accommodation to have a bath room and tub is a “necessity.”</p> <p>3. In such a case the fact that the heater, while not otherwise defective, did -not come up to the guaranty in that it was not capable of doing the service demanded of it in that house, does not enter into the question as to whether or not it was a “necessity.”</p>

<p>EFFECT OF RESTORATION OF PROPERTY FRAUDULENTLY TRANSFERRED.</p> <p> Fraudulent Transfers—Grantee can not he Held as Trustee for Creditors, When—Assignments for the Benefit of Creditors—Section 6S/tS. </p> <p>Where an insolvent with intent to defraud his creditors transfers property whether real or chattel and thereafter makes an assignment, the transferee can not he charged with the value of the property as trustee for the creditors of the assignor, when it appears that he renounced the trust by returning the property to the assignor before the rights of the creditors became fixed by the obtaining of a judgment or the filing of a creditor’s bill.</p>

<p>STALE CLAIM FOR. FIRST YEAR’S ALLOWANCE.</p> <p>Estates of Decedents—Estoppel Against Widow from Claiming Allowance for First Tear’s Support—Sections 6018 and 601i0. a</p> <p>Where a widow received the balance remaining in the hands of the administrator after settlement of her husband’s estate without making any claim for an allowance for her first year’s support, it is not competent for the probate court after the lapse of nearly forty years to grant an application for the appointment of an administrator de honis non for the sole purpose of setting off to her said allowance.</p>

<p>DISCRETION IN THE CARE OF PUBLIC PARKS.</p> <p>Municipal Corporations—Improvement and Control of Parks—Official Discretion—Jurisdiction of the Courts does not.Attach, Unless— Pleading—Injunction—Sections 1536-100 (26) and 1536-677.</p> <p>1. Courts will not interfere with the discretion of municipal officers, unless their acts are of a character that is calculated to subvert rather than to conserve the purposes and objects of interests committed -to their charge.</p> <p>2. A petition which charges that the director of public service is rashly exercising his powers in cutting down and destroying trees in the public parks which most foresters and park managers would leave growing, is demurrable; but an allegation that he is destroying trees in the public parks to such an extent as to make the parks unfit for the use and enjoyment of the public, charges a gross abuse of power, and is not demurrable, but should be answered.</p>

<p>ORAL CONDITIONS TO CONTRACT OF PURCHACE CONSENTED TO BY AGENT OF THE SELLER.</p> <p> Sales Through Agent—Limitations on the Agent’s Authority—Condition Agreed to by the Agent "Without the Assent of the Principal —Ratification—Acceptance of Benefits. </p> <p>Where a contract of purchase is made with an agent of the seller, whose authority is stated in the contract to he that of a soliciting salesman only, an agreement or condition consented to hy the agent, hut not embodied in the contract, is not enforcihle.</p>

<p>ALIMONY UNDER. A FOREIGN DECREE.</p> <p> Alimony—Claim for, under a Decree Granted in Another State—Death of the Defendant—Preference Lost through Failure to Assert Claim in Home Jurisdiction During Lifetime of the Debtor. </p> <p>A claim for alimony under a decree granted by the courts of another state does not hind property in Ohio as a preferred claim, unless asserted in this jurisdiction before the death of the defendant.</p>

<p>STREET RAILWAY FARES TO RESORTS BEYOND MUNICIPAL LIMITS.</p> <p> Injunction—Against Increase of Street Railway Forre at the Instance of a Municipality—Contract Between Owners of a Private Resort and a Carrying Company•—Discrimination Between Routes—Tayler Ordinance of Cleveland Invalid in Part—Agreement Construed to be a Lease. </p> <p>1. It is competent for a private corporation, owning and operating a resort, to enter into an agreement with an electric railway company whereby passengers are to he carried to the resort for a five cent fare, while other railway companies are excluded from the resort altogether and steamboats landing passengers at the dock of the resort are required to charge a fare of ten cents each way or fifteen cents for the round trip.</p> <p>2. The agreement entered into in this case is construed to be a lease with the .railway company holding over; and to an action construing its terms the city of Cleveland is a proper party.</p> <p>3. What .is known as the Tayler ordinance of the city of Cleveland, providing and requiring that street railway fares to certain points shall be ten cents, is inoperative in so far as it undertakes to compel the Cleveland Railway Company to increase its fares to points as to which it has contracts, either with public bodies such as municipalities or with private parties.</p>

<p>APPEAL' FROM A DISMISSAL.</p> <p> Appeal—From, a Justice of the Peace—Judgment Against One Defendant and Dismissal of the Other Two—Final Ordei—Parties. </p> <p>A motion to dismiss an appeal does not lie on the ground that the appeal is only from a judment of dismissal in favor of the movant.</p>

<p>REFUSAL OF CITY AUDITOR TO ISSUE CERTIFICATE REQUIRED BY THE BURNS LAW.</p> <p>Counsel Fees for Defending Title to a Municipal Office—Director of Public Safety Without Power to Contract for such Services— Power of Council in that Behalf—May Reimburse Officer for Expenses thus Incurred—Mandamus—Parties—Section 15S6-66S.</p> <p>1. A city clerk or auditor can not arbitrarily refuse to certify that there is sufficient money in the treasury and unappropriated to meet a proposed expenditure, and where such a refusal is without sufficient grounds mandamus will lie to compel him to make the certificate.</p> <p>2. A director of public safety has no authority in law to-himself make a contract for the services of counsel in defending his title to the office, and in the absence of statutory authority council can not confer upon him authority to make such a contract involving the expenditure of public money; and even if such power existed in council, the contract would not become available as a contract until the auditor has issued the required certificate that the money necessary to meet the expense is in the treasury and available for that purpose.</p>

<p>AS TO PRESIDENT OF COUNCIL SIGNING ORDINANCES IN MAYOR’S ABSENCE.</p> <p>Municipal Corporations—Presentation of Ordinances to Mayor for Approval—Authority of President of Council to Sign in Mayor’s Absence—What Constitutes Absence—Sections 4234 and 4273, General Code.</p> <p>1. The council of the city of E passed an ordinance fixing salaries on December 14, 1909. T, who was mayor of said city, was in the city during the next day and was notified by the clerk of the passage of the ordinance and requested to call and sign the same, but the ordinance was not delivered to him. During the day of the 16th, the mayor was absent from the city a few hours and during his absence the ordinance was presented to and signed by the president of council as acting mayor. On December 21 the mayor, having taken possession of the ordinance, returned the same to council then in session with his reasons for his veto of the same. Held.: Said ordinance never became a valid law of the city and payment of salaries thereunder should be enjoined.</p> <p>2. The records of a city council which are by law authorized and required to be kept, show the passage of an ordinance and the signing of the same by the acting mayor in the temporary absence of the mayor from the city, and the records also show that the same ordinance was subsequently and within ten days after its passage, disapproved by the mayor and returned to the council with his objections thereto. Held: -Under such circumstances parol testimony is admissible to show whether or not the mayor was absent from the city and unable to perform his duty with reference to said ordinance so as to authorize the president of council to sign the same as acting mayor.</p>

<p>REFERENDUM AS TO A SUBWAY ORDINANCE.</p> <p> Elections—Blank Ballots not “Totes"—Proper Method of Returning the Result of a Referendum Held under Section 3@83d—Duties of a Canvassing Board—Injunction Against Return of a Misleading Certificate. </p> <p>1. Under the referendum provided by Section 3283d, blank ballots are not “votes cast on the question” and can not be counted.</p> <p>2. A petition which alleges that, unless restrained, the canvassing board will count, canvass, tabulate and abstract as “votes upon the question” ballots which did not express any vote, indicates that an inaccurate and untruthful result will be certified by the board, and the return of a certificate based upon such a count will be enjoined.</p>

<p>EXEMPTIONS TO ASSIGNORS.</p> <p>Assignments for the Benefit of Creditors—■Homestead, Exemption— Residence of the Assignor—Sections 51^1 and 63J/8.</p> <p>An assignor, who was not a resident of Ohio on the day her assignment for the benefit of creditors was made, hut became a resident thereafter, is not entitled to homestead exemption under the Ohio law.</p>

<p>OWNERSHIP OF SWAN’S TREATISE.</p> <p>Contracts—Agreement for Publication and Sale of an Author’s Worlcs— Rights of Author and Publisher—“Successors” to the Original Contract.</p> <p>By the terms of the contract between Judge Swan and the Robert Clarke Company, whereby Swan’s Treatise was to be published and sold by the said company, it is held that the receiver of the Robert Clarke Company and the trustees of the Swan estate are the “successors” of the original parties to the agreement, and that the stereotype plates belong to the Swan estate, and the right to publish and sell said work belongs, at this time, exclusively to the Swan estate, and these rights can no't be sold by the receiver of the Robert Clarke Company.</p>

<p>PROPOSED ABSORPTION OF THE HOCKING VALLEY RAILWAY BY THE CHESAPEAKE &. OHIO RAILWAY ILLEGAL.</p> <p>Corporations—•Motive of Stockholder in Bringing Suit Against the Corporation—Sis Bight so to do Depends upon the Capacity in which Se Acts—Application of Federal Buie 94—Policy of the Law the Same with Deference to Foreign and Domestic Corporations—Acquirement by One Bailway of Controlling Interest in Another—Construction of Sections 8683, 8806, 8807 and 8808—Purely Legal Ownership of Stock as Distinguished from Bailroad Ownership—Directors Without Authority to Betire or Increase Capital Stock Without Consent of the Stockholders—No Bight of Ownership of Stock of Another Corporation, When—Acts which■ a Minority Stockholder may Enjoin—Betirement of Stock Not Completed by Paying Over the Money—Grounds for a Beceivership.</p> <p>1. A stockholder has the right, regardless of the motive actuating him, to maintain an action to contest alleged irregularities in the management of the corporation, when the action is not brought in his representative but in his individual capacity as a stockholder, standing on his strict legal property rights.</p> <p>2. Neither public policy nor the statute law of the state will permit of the acquisition by the Chesapeake & Ohio Railway Company of a controlling interest in the Hocking Valley Railway for the purpose of forming a trunk line from the sea to the great lakes, for the reason that connection between these roads is made by using the Kanawha & Michigan railway, which is owned by the Chesapeake & Ohio and the Lake Shore & Michigan Southern jointly, and has been judicially determined to be a competing line with the Hocking Valley.</p> <p>3. The action of directors constituting the boards of two different corporations, whereby the retirement of the preferred stock of one of the companies is ordered with the purpose in view of substituting therefor a new issue of common stock to be purchased by the other company which would thus be given control, is illegal and void on broad principles of equity, notwithstanding a provision in the articles of incorporation, which is embodied in all the certificates of preferred stock outstanding, that the said preferred stock may be retired at any time subsequent to three years after its issue by the company.</p> <p>4. Moreover the matter of the reduction or increase of corporate stock is not • within the authority of the directors of the corporation, but is governed by a statutory provision requiring the written consent thereto of the persons in whose' names a majority of the stock stands on the books of the company.</p> <p>5. There is no right of ownership on the part of the C. & O. Railway Company of the stock of the Hocking Valley Railway Company, either by warrant of statute or upon general principles of law; but 'such ownership would be a continuation of the combination previously existing under the name of the Trunk Line Syndicate, and which was condemned by the courts of the state.</p> <p>6! A minority stockholder may enjoin the unlawful retirement of stock, or an, increase of stock for an illegal purpose, or the voting of a majority of the stock where it is owned by a railroad corporation contrary to law, or action by the directors which would commit ' the road to an unlawful scheme or conspiracy in restraint of trade which would subject the corporation to loss of its charter at suit by the state.</p> <p>7.' The payment by the Hocking Valley Company of $15,000,000 to J. P. Morgan & Co. for the retirement of its preferred stock does, not amount to an actual retirement of said stock, but Morgan & Co. must be considered as mere agents holding the money for the benefit of the Hocking Valley Railroad Company.</p>

<p>AS TO LIABILITY UNDER. A POLICY OF INSURANCE.</p> <p> Fire Insurance—Determination as to Whether Liability had been Denied by the Company—Failure to Demand Appraisal—Proof of Loss. </p> <p>A letter from a fire insurance company stating -that “from the informa-’ • tion before us we believe the entire loss and' damage to have been caused by a cyclone and not by lightning,” is not a denial of liability under the policy written by the company on the property referred to as damaged; and it is not error in such a case for the court to determine the question of liability itself, instead of sub- . mitting it to the jury.</p>