ACCORD AND SATISFACTION

Where plaintiff, injured by collision of two motor vehicles, sues the owner of one, the latter's answer that plaintiff made a contract of settlement with the other owner, who is not charged with negligence, covenanting not to sue him and that the amount was a full compensation, sets up more than a covenant not to sue, but a full satisfaction and is not demurrable. 191.

APPEAL

Custody of children a "chancery case" on divorce. 229.

A guardian appealing from an order terminating the guardianship need not give an appeal bond, for the trust has not completely ended until the right of review has lapsed, and it must be assumed that he has no personal interest. [Reversing 18 N.P. (N.S.), 286.]

26.

Where a case to subject a fund in the hands of two defendants jointly is appealed by plaintiff and one of such defendants, the appeal carries up the other defendant, since the fund can not be in court unless the persons who hold it are there. 408.

ATTACHMENT

The municipal court of Cincinnati (103 L., 280, Sec. 7) having the same jurisdiction in ancillary proceedings as justices, and G. C., 10259, giving an appeal to the common pleas from a justice's refusal to dissolve an attachment, it follows that the common pleas has jurisdiction on such appeal from the municipal court. 11.

Voluntary payment of ten per cent. to one creditor for necessaries is no bar to garnishment

609

by another creditor, though the payment was made by reason of a threat to garnishee. 107.

Billing and collecting from a buyer plaintiff for more than twice the amount shipped is a ground for attachment for a debt fraudulently or criminally contracted. 70.

AUTRE FOIS ACQUIT OR CONVICT

Assault and battery under G. C., 12423, is a distinct offense from assault with intent to rape under G. C., 12421, and a conviction of the former is no bar to a prosecution for the latter. [Affirmed, 94 O. S.,.] 113.

BILL OF EXCEPTIONS

Interrogatories to jury and their answers-see verdict. 84.

A bill of exceptions is not filed by leaving it with a deputy clerk in charge of a court room with instructions to file it, and the clerk will not be compelled to stamp it filed after time. 497.

A bill of exceptions does not purport to contain all the evidence when it merely states that the following testimony was offered, all of which is hereafter fully set out, for that merely states that it contains what it contains. And a statement in the bill that it contains all the testimony is not a statement that it contains all the evidence. 419.

Striking the bill of exceptions from the files does not authorize a dismissal of the petition in er481.

ror.

BONDS

A bond to repay if the obligee is compelled to pay a third person,

together with counsel and court fees, only covers such fees if the third person is successful in the litigation, and not such fees incurred in defeating it. 97.

Sinking funds, purchase of, are assets; how re-sold. 369. BILLS AND NOTES

Endorsement "without recourse" is not a mere assignment, and the endorsee may have all the rights of innocent holder in due course, free from equities of the maker. G. C., 8143, does not change this rule. 173.

Where a majority and not a twothirds vote of the electors authorized a bond issue, the whole issue is not invalid, but such part is valid as satisfies the 21⁄2 per cent. of the total value of city property under G. C., 3952. [Affirmed without report, 94 O. S., -] 458. BUILDING CONTRACT

See SURETY.

Custom of sub-contractor to pay part of expenses. 142.

A provision that the contractors building a grain elevator should indemnitfy and save harmless the owners from any loss by failure of the elevator to be serviceable for the purpose intended, means more than that the work shall come up to the plans and specifications, but is an express warranty of serviceableness. [Affirmed without report, 90 O. S., 446.] 151.

The architect's certificate is competent evidence on the subject of damages, although it purports to cover matter "brought to our notice" and to be made partly in view of sworn statements of the owner's agent, for these merely show the evidence on which it was based. 292.

Where a contractor for a heating system guaranteed to produce a certain temperature, on finding this impossible under the plans and specifications offers to comply with his guaranty by change of equipment, the owner has the option to insist on the specifications

and lose the heat or to obtain the heat by change of equipment, and by insisting on the former waives the guaranty. 149.

Waiver of a clause against claims for extra work unless done by written order can only be shown by evidence so clear and convincing as to leave no reasonable doubt. [Affirmed without report, 90 O. S., 446.] 151.

Stipulated damages for delay are prima facie liquidated damages, to impeach which effect the burden is on the contractor's surety. 292.

A charge not to allow any damages called for by the contract for each day's delay to complete on time if the defendant by acts, words or ordering extras extended the time is erroneous, for it does not regard the duration of the delay so caused. [Affirmed without report, 90 O. S., 446.] 151.

CARRIER

An act of God to be a defense must be the sole cause of loss. If the carrier's negligence brings the goods in contact with the forces of nature he is liable, as where a defective car necessitated reloading and the delay exposed the car to the Dayton flood. 204.

Where under a uniform contract the shipper was to water his stock, but where upon a delay the carrier agreed to water them and by neglect to do so forty died, Held: the carrier's waiver is not an unlawful preference to the shipper under G. C., 508, 564, 567 and 568, which relates only to an unreasonable discrimination granting a concession not enjoyed by others [reversing 17 N.P. (N.S.), 42]. 335.

A charge that a crippled passenger must exercise "greater care" than others is properly refused. The charge should be that in determining whether he exercised ordinary care his crippled condition should be considered. 208.

It is not negligence per se for
a passenger to take a position on
the bumper of a street car where
there is no room on the platform
and the conductor collects his
fare and recognizes him as a pas-
senger. 212.

A charge that the carrier must
exercise the care which very
careful and skillful employees
would exercise is erroneous, for
only the highest care which ordi-
narily careful and skillful em-
ployees would exercise is required.
208.

A charge that if plaintiff was
at the depot platform intendng
to take an in-coming train he was
a passenger and entitled to the
highest care is erroneous. It is
for the jury to say whether he was
a passenger, and as before board-
ing the train he has control of his
own motions, he is not entitled to
that degree of care. 479.

A charge "if you find that de-
fendant was negligent in statring
the car before plaintiff had an
opportunity to be seated" is error,
for it implies that starting before
a passenger can be seated is negli-
gence, which is not the law. 208.

Although by a so-called "aver-
age agreement a consignee has
waived a demurrage rule allowing
a consignee extra time to unload
where cars are bunched and de-
livered in accumulated numbers in
excess of daily shipments "as the
result of any act or neglect" of
the railroad, yet where the delays
and consequent Dunching were
due to the floods of March, 1913,
and not to the fault of the rail-
road and therefore not within the
rules or agreement, yet demurrage
can not be charged, for a party
relieved by an act of God can not
be permitted to penalize the other
for delay so caused. 379.

Where connecting carriers are
not designated in a shipment, the
initial carrier is not a general
agent of the shipper but acts un-
der a special authority, revoca-
tion of which is binding on

tice by the shipper to an inter-
mediate carrier not to deliver
to the final carrier is disregarded,
the latter has no right to hold
the goods for payment of demur-
rage and a division of freight
charges in controversy with the
preceding carrier. Charges do not
inexorably follow from the fact
of service, but only if the service
is authorized. 276.

A shipper's agreement, in order
to obtain release of his goods to
pay demurrage and car service
which are not legal, is void. 276.

Where the consignee refuses to
accept a car load shipment and
the consignor on notice refuses to
give the carrier instructions, the
consignor, with whom alone the
carrier has contracted, is liable
for demurrage, although the title
may be in the consignee. 527.
CHARGE OF COURT-

A charge "you have a right to
accept or reject part or all of a
witness' testimony and give credit
to those you find entitled to it"
does not violate the rule laid down
in 90 O. S., 419. 201.

Error in refusal to give a charge
before argument as requested is
not prejudicial error where it is
incorporated in the general charge
and not sustained by the evidence,
and the principle covered by it
is so interwoven into the case that
the refusal could not have affected
the argument.

29.

A charge that burden of proof
means the duty of satisfying the
jury imposes too great a burden
on the plaintiff, but being preju-
dicial to him alone and not to the
defendant, the latter can not com-
plain. 201.

CHATTEL MORTGAGE-

Withholding from record chat-
tel mortgages on all the assets of
the mortgagor, who is fairly be-
lieved to be solvent, not by agree-
ment or fraudulent intent nor to
enable the mortgagor to secure

credit from others, but merely to
prevent creditors closing down un-
til the return of a friendly finan-
cial backer, is not a fraud on
present or prospective creditors.
72.

CIVIL SERVICE-

A temporary appointee by the
mayor in 1912, before the com-
mission furnished an eligible list,
was an incumbent when the law
of 1913 went into effect and en-
titled to hold his position until
he failed to qualify or was dis-
charged for cause.
241.

Where the law forbids promo-
tion unless the applicant attains
a certain per cent. on examina-
tion, the fact that he falls a frac-
tion of one per cent. below does
not entitle the appointing officer
to promote him on the ground of
believing that in age, judgment
and manhood he is better than
one of a higher percentage. 361.

Failure in the rules of promo-
tional examinations to prescribe
the branches of examination
whereby the examination might
be on Greek or any other national
line, will not be ground for the
court's interference with the re-
sult where the questions were fair
and pertaining entirely to a prac-
tical knowledge required by the
position sought. 361.

COMPROMISE—

See ACCORD AND SATISFACTION.
CONSTITUTIONAL LAW-

General Code, 9012 to 9014, put-
ting a penalty upon a corporation
for compelling employees joining
and contributing to a relief asso-
ciation and waiving any right to
damages for personal injury, are
valid. They are not impariments
of the right to contract, and an
employee compelled to contribute
can recover the penalty. 305.

The indeterminate sentence law
not applied to prior offenses. 281.
No vested right in a remedy;
jury law applies to pending cases.
415.

Waiver of clause against extras
must be beyond reasonable doubt.
151.

Where plaintiff's agent was au-
thorized to offer $2,500 for prop-
erty and paid $400 down but the
receipt for the $400 stated that the
plaintiff was to pay the June taxes
and the pleadings do not show that
plaintiff's agent was authorized
to assume the June taxes, plaintiff
is entitled, on revoking the offer,
to a judgment on the pleadings
for $400. 337.

On refusal to carry out a con-
tract to convey property to be
paid for in future services, the
measure of damages is not the
value of the property but what
the contract was worth to the ven-
dee at the date of breach, in esti-
mating which the jury must con-
sider the contingencies which may
prevent performance of the serv-
ices and the value of the time
saved to the vendee. [Affirmed
without report, 71 O. S., 546.] 84.
CORPORATIONS-

Equity has no power to require
a board of directors in the ab-
sence of fraud or abuse of discre-
tion to declare dividends out of
abundant earnings, nor by conse
quence to declare paid a note
which provides to be paid out of
dividends but is not so paid be-
cause of failure to declare divi-
dends. 561.

Employee buying stock in reli-
ance on officers, holds subject to
their bad judgment if bona fide.
561.

COUNTER-CLAIM-

In an action for stipulated dam-
ages for not conveying property

as agreed, defendant's answer de-
nying that she owned the prop-
erty will not bar her subsequent
suit to enjoin collection of the
judgment on the ground that the
agreement to convey was pro-
cured by fraud. Her failure to
set this up by counter-claim
merely puts the costs on her. 475.
COUNTY-

The liability of county commis-
sioners for an unsafe highway
(G. C., 2408) has not been im-
pliedly repealed by the state aid
statutes, the state commissioner's
duties being merely advisory; and
where the county's contractors in
re-paving a road stretch a wire
across it without guards or warn-
ing whereby a motor cyclist is
injured, the county is liable for
such negligence, 443.

Actual notice of a defect in a
highway is not necessary to a lia-
bility if there is constructive no-
tice.

[Affirmed without opinion,
88 0. S., 587.] 415.

Although absence of funds with
which to repair a road is a defense
to an action for injuries, it is de-
fensive matter and the petition
need not aver means to repair.
[Affirmed without opinion, 88 0.
S., 587.] 415.

COURTS-

An affidavit of bias and preju-
dice on the part of a trial judge
disqualifies him under G. C., 1687,
as amended in 103 v. 417. 581.

Jurisdiction of circuit court ap-
plied to court of appeals. 218.

The probate court being a court
of record, its proceedings are pre-
sumed within jurisdiction and im-
port verity and are not collaterally
impeachable. [Affirmed without
report, 88 O. S., 623.] 129.

COVENANTS-

"Owner" means fee simple or ab-
solute in a grantor's covenant
that he is the true and lawful
"owner." 283.

Parol evidence that the grantee
assumed an unexpired lease on the

premises before delivery of the
deed and as a condition thereof,
is admissible in an action on the
covenant against incumbrances,
for it is not inconsistent with the
covenant but is in effect a dis-
charge of the liability thereon.
529,

CUSTOM-

In a sub-contractor's action
against the head contractor for
an amount due, evidence of a cus-
tom among contractors by which
the sub-contractor bears a propor-
tion of the cost of board, convey-
ances, etc., for agents, engineers
and surveyors furnished by the
head contractor is admissible, not
to vary the contract, but to ex-
plain surrounding facts under
which it was made. 142.

DAMAGES-

Ten thousand dollars for the
loss of a leg of a fourteen-year-
old boy is excessive and either a
remittitur to $7,500 or a reversal
must be accepted. [Below, 18 N.P.
(N.S.), 409.] 49.

Breach of contract to convey
payable in future services. 84.

Jury should be told meaning of
punitive damages. 321.

Re-sale not evidence of market
value. 225.

DEATH BY NEGLIGENCE—

In an action by a mother as
administratrix for the death of a
child she can not recover for her
own benefit if those in whose cus-
tody she had placed the child
failed to use ordinary care for its
safety. 29.

DESCENTS—

Where S died testate without is-
sue, leaving brothers and sisters
and a widow who elected not to
take under the will and later died
intestate without either issue or
brothers and sisters, she took her
distributive share of her husband's
personal estate under G. C., 10571
and 8592 and not under G. C.,
8574, paragraph 2; hence G. C.,