866

INJUNCTION-Continued.

It is no defense to an action to en-
join a railroad company from unlaw-
fully continuing its possession and use
of private property, that the owner
might tender a deed to, and demand
compensation from, the company for
the land in question. Collins v. Ship-
802
building Co.

A railroad company which has taken
possession of private property with-
out the consent of the owner and with-
out first making compensation therefor
in appropriation proceedings, may be
enjoined from continuing its possession
and use of such property.

Ib.

Award of public contracts made up-
on other conditions than those in orig-
inal specifications and advertisement
will be enjoined. State v. Cincinnati
(Bd. of Ed.)

INSANE PERSONS-

832

The rule adopted by the trustees
of the state institution for the feeble-
minded, that all inmates should be en-
tirely subject to the direction of their
parents, and be discharged therefrom
upon their order or direction, is rea-
sonable. Doren v. Fleming.
INSURANCE-

737

See also BENEFICIAL ASSOCIATIONS.
Trust deed will defeat policy stipu-
lating against change of title. Ohio
Farmers' Ins. Co. v. Black.

86

Removal of goods insured defeats re-
covery notwithstanding agent promised
Walsh v.
to see proper entries made.
313
Insurance Co.

Person for whose benefit such associa-
tion may issue benefit certificate must
be one of the class provided for. Starr
v. Knights of Maccabees.

475
Stipulation that waiver of conditions
of fire insurance policy must be in writ-
ing held to require strict construction
-Filing of proofs of loss. Billings v.
552
Insurance Co.

Charge to jury that settlement of
claim is not binding in case of fraud or
mistake held erroneous in absence of
such agreement. Continental Cas. Co.
v. Jordan.

696

Mutual protection association may
collect assessments before actual loss
sustained. State v. Insurance Assn.
838

Ouster does not lie for immaterial
variance between annual report and
true condition of insurance association.
INTOXICATING LIQUORS-

Ib.

The trial court having determined
that a malt liquor is intoxicating, the
judgment of the court will not be re-

The injury to furniture, in a resi-
dence, resulting from replacing the old
roof with a new one, is one that might
be anticipated as a direct or probable
consequence of the performance of the
work, if reasonable care is omitted in
selecting the time of performance;
hence, the doctrine that the independ
ent contractor is alone responsible does
not apply. Honnemeyer v. Fischer. 8

Where the injury occurred to the
tenant's furniture by reason of the land-
lord's negligence in removing the roof
of the house at a time when he knew
that a heavy storm was impending, he
is liable therefor, notwithstanding the
storm was an unprecedented one, be
cause the original negligence was the
proximate cause, and the unusual storm
merely increased the amount of the
damages.
Ib.
Notice of the tenant's election, to
renew must be given at or before the
expiration of the term, under a lease
containing a privilege of renewal at the
expiration of the term. Mack v. Eck-
erlin.

133
Charging rent to agent not an elec-
tion to hold him only. Smart v. Lodge
No. 2.
273
Indebtedness for rent not necessarily
claim for necessaries within meaning of
attachment laws. Hare v. Cook. 289

In order to bring a lease by a guard-
ian within the purview of R. S. 6296
(L. 9837), authorizing a guardian to
lease realty for a term of fifteen years

under permission of the court appoint-
ing him, the petition must contain the
necessary averments showing the re-
quisite conditions and authority of the
court. Globe Soap Co. v. Railway.

759

In an action involving the validity
of a lease executed by a guardian, the
petition must set out by what authority
he acted, and that his wards were dis-
qualified by infancy, imbecility or other-
wise.

LEASE-

Ib.

In an action involving the validity
of a lease executed by a guardian, the
petition must set out by what authority
he acted, and that his wards were dis-
qualified by infancy, imbecility or other-
wise. Globe Soap Co. v. Railway. 759
A covenant in a lease for three years
executed by a guardian, granting an
option on the premises for a further
period will be invalid under the terms
of R. S. 6295 (L. 9836).

Ib.

In order to bring a lease by a guard-
ian within the purview of R. S. 6296
(L. 9837), authorizing a guardian to
lease realty for a term of fifteen years
under permission of the court appoint-
ing him, the petition must contain the
necessary averments showing the re-
quisite conditions and authority of the
court.
Ib.

Agreement of employe to promote
interest of employer implies ability to
promote, etc. Highland Buggy Co. v.
Parker.
115

Dissatisfaction of employer to war-
rant employe's discharge must not be
based on mere whim, etc.
Ib.

Salesman must conform to reasona-
ble prices fixed by employer.

Ib.

Harsh and unconscionable contract
between employer and employe not en-
forced by court of equity, etc. Jen-
nings v. Bethel.
239

Where the work to be done is of such
character that injurious consequences to
an employe may be reasonably expected
to result from its performance, unless
proper care is observed, the person con-
tracting to do such work cannot escape
liability to an employe for injuries sus-
tained from negligence in its perform-
ance, by showing that the work was
left to, and was done by, an independ-
ent contractor. American Contracting
Co. v. Sammon.

337

Brakeman injured by failure of con-
ductor to protect him from danger may
recover from company, when. Lorain
Steel Co. v. Hayes.
407

Where inspection of wagon tongue
warrants conclusion of long defective
condition, question of owner's knowl-
edge thereof a question for jury, etc.
Walton v. Ensign.
505
Agency of driver need not be affirm-
atively proved when ownership of team
and wagon shown; ownership makes
prima facie case of negligence.

Ib.

Where the duties of a laborer re-
quired him to wheel brick and mortar
to the foot of a stack, and fasten a
bucket to a rope when directed to do so
by the bricklayers and their helpers
on the stack, and the bricklayers and
their helpers had no other authority or
control over the laborer, the latter and
the former are fellow servants. Boldt
Glass Co. v. Harris.
590

If a laborer sustain an injury by
reason of a brick falling from the top
of a stack, he cannot recover from his

employer for his injury in the absence
of proof showing who caused the brick
to fall or that it fell through the faulty
construction of a scaffold by defend-
ant, his employer.
Ib.

Allegation that master assured serv-
ant of safe character of work, not sus-
tained by proof of such assurance re-
specting similar job. Marshka v. Iron
& Steel Co.
721

Duty of master to instruct servant
concerning dangerous work, when.
Jackson Knife & S. Co. v. Hathaway.

745

Where, in an action for wrongful
death, the undisputed facts show that
an inexperienced boy of seventeen was
killed by putting a belt on a rapid
wheel, it is for the jury to say whether
the danger was so open and apparent
that instructions were not necessary.

"Non licet interpretare quae interpre-
tatione non egent."

"Ex turpi causa non oritur actio."
Pape v. Oil Co.

111

Where one of two innocent persons
must suffer from wrongful act of a
third person, the one who put it in the
power of such party to commit the
wrong must suffer the loss rather than
the other innocent party. Merchants'
& Clerks' Sav. Bank Co. v. Schirk. 125
Annoyances from operation of rail-
road from smoke, noise, etc., held dam-
num absque injuria. Ross v. Railway.
135
MAYOR-

Mayor must pay into the city treas
ury fees collected by him for violation
of penal ordinances. Cambridge v.
Smallwood.

302

Joinder of, cause of action on note
with one to enforce payment of debt
by principal, improper. Schick v. Ott.
697
MISTAKE-

An injunction will not be granted
when it is unconscionable to grant the
same, even though a legal right is about
to be violated; and where the legal
right arises out of a decree of court,
rendered by mistake, an injunction is
properly refused. Parsons v. Pail Co.
162

A court of equity has power to cor-
rect mistakes in the estimates, of a civil
engineer, notwithstanding the contract
under which the work was being done
provided that the estimates should be
final and conclusive. But as a gen-
eral rule, in the absence of an intention
to defraud, or bad faith on the part of
the engineer, his estimates under such a
contract are final. Cleveland v. Grif-
fin.
167
Substantial defect necessary to defeat

real estate contract of sale. Egle v.
Morrison.
497

The refusal of a party to perform
his agreement for the purchase of realty
on the ground that the title thereto is
defective will not, in the absence of
mistake or fraud, release the owner
from the payment of a commission to
the agent affecting the agreement, where
such owner has agreed to accept the
terms offered and pay such commission.
Godley v. Haley.
606
MORTGAGES-

Neither mortgagor nor mortgagee are
entitled to relief in debenture con-
tract contrary to public policy, as being
in nature of a lottery. Heintz v. Saw-
yer.
10
Trust deed will defeat policy stipulat-
ing against change of title. Ohio Farm-
ers' Ins. Co. v. Black.

86

The priority of the lien of the first
mortgage must be preserved by the ad-
ministrator in the fund realized from
the sale of real estate, when such lien
is set up in the action commenced by
the administrator to sell the real estate
to pay debts; but, as the administrator
is a trustee for unsecured creditors
only, where such mortgagee fails to
set up his claim, his lien is thereby
cut off, and he thereupon becomes a gen-
eral creditor; and the administrator
owes such mortgagee no duty to see
that his lien is preserved. Sherman
v. Millard.
175

An administrator of a deceased mort-
gagor is not a necessary party to a mort-
gage foreclosure proceeding; and, as
a purchaser at foreclosure sale is sub-
rogated to all the rights of the mort-
gagee, where the value of the property
proves less than the mortgage debt
his title cannot be impeached by gen-
eral creditors nor by the administrator
in the absence of fraud or collusion in
the proceeding and sale.
Ib.

There can be no dower interest ex-
emption as against a mortgag where
the claimants to dower and homestead
have joined in executing. Stoehr v.
Brewing Co.
330

In the application of the amount of
a dower interest and a homestead ex-
emption to the satisfaction of a mort-
gage in which the husband and wife
joined, resort should first be had to
the amount of the homestead where
the wife, claiming dower, joined in the
mortgage simply as surety.
Ib.
Computation of dower based on entire
proceeds of sale of consort's lands.
Hickey v. Conine.
369

Wife furnishing money to pay off
husband's mortgage cannot be subro-
gated therefor out of proceeds of sale

870

MORTGAGES-Continued.

by administrator without proof that it
was loaned with such understanding.
MOTIONS AND ORDERS-

Ib.

Motion to discharge attachment un-
der R. S. 6494 (L. 10071), must set
Hare v. Cook. 289
forth reasons, etc.
Motion to dismiss attachment for
want of jurisdiction held not an ap-
414
Blinn v. Rickett.
pearance.
Motion to dismiss service of ques-
tioning jurisdiction held not a general
entry of appearances, nor is it necessary
to state expressly that the motion is
Ib.
filed for such purpose.
Consideration of motion to remove
executor not a summary and ex parte
proceeding. Breckenridge, In re.

688

Motion under favor of R. S. 6017
(L. 9556), for removal of executor,
charging fraud, not sustained unless
fraud proved.

Ib.
Failure to set out indorsements in
action on note will be corrected on
697
motion. Schick v. Ott.

An assignment in error that the trial
court erred in overruling motion to
take the case from the jury and dis-
miss the action, will not be reviewed
on error when the defendants there-
after elect to proceed with their testi-
Dorn v. Fleming.
mony.

737
Want of notice of motion to fix fees
of executor for special services deprives
court of jurisdiction. Ballard v. Mack.
839

MUNICIPAL CORPORATIONS-

A municipal council has no jur-
isdiction to grant a franchise to con-
struct a street railway in a street unless
there are produced the written con-
sents of more than one-half of the feet
front abutting upon said street. Day
60
v. Railway.

An ordinance is not open to the ob-
jection that it contains more than one
subject, within the inhibition of R. S.
1694 (L. 3106; B. 1536-620), because
it refers to matters which are simply
incidental to the real subject. Sher-
man v. Millard.

175

The property rights of a street rail-
road operating under authority of a
municipality to the extent that its
lines are within the corporate limits,
and under authority of the county
commissioners to the extent that its
lines are without the corporate limits
are not taken away by the mere annex-
ation of the incorporated territory to
the municipality. Belle v. Glenville.
181

A resolution of a municipal council
involving expenditure of money, or cre-
ating a right, cannot take effect until

Wal-
238

not-

Certificate of auditor filed before con-
tract let, is in time. Emmert v. Elyria.
353

Taxpayer estopped from questioning
action of council, when.

Ib.

False certificate of auditor does not
Ib.
invalidate contract, when.

Council may reconsider action in vot-
ing down resolution of another munici-
Adkins v. Toledo.
pal board, when.

Legislative bodies

etc.

417

vote taken as general rule, etc.
Failure to prevent pollution of water
does not estop city from building sewer,
427
Hildebrand v. Toledo.
polluting
Municipality guilty of
stream not estopped from preventing
pollution by others.

Ib.

Council may make noisy conduct, etc.,

a penal offense under R. S. 1536-100
(L. 3102). Esch v. Elyria.

446

Board of waterworks trustees held
discontinued by new municipal code.
Hutchinson v. Lima.

545

New municipal code continued clerk
of waterworks trustees in employment.

Ib.

A municipal corporation is responsi
ble for injuries to a traveler upon one
of its streets from coming into contact
with a pole placed in such a position
by a telephone company as to become
a public nuisance or dangerous. Nor-
691
walk v. Jacobs.

Cincinnati waterworks commissioners
can contract only as prescribed by R.
S. 2430 (L. 3706; B. 1536-541). New
694
York & B. Co. v. Herrmann.

Where a person, having twice before
on the same day passed over the same
place, the place being a temporary
crossing of a street in process of re-