JUDICIAL SALES-Continued.

require the first purchaser to pay
any damages resulting therefrom;
or to return the sale as made and
proceed by civil action for the pur-
chase money or by attachment for
contempt; but the purchaser has no
choice, save to pay the money in pur-
Buance of his biu.
Ib.
Whether the doctrine of relation
back to date of sale applies in case
of an execution sale not requiring
confirmation, quaere.
Ib.

See also DoWER.

JURISDICTION-
See COURTS.

JURY-

Where the jury in a criminal case
retired late in the afternoon and
were instructed that they would be
furnished with a place to sleep and
the sheriff was ordered to furnish
them with necessary food, merely
asking the jury if they wished a
lunch, about eleven o'clock at night,
as they were being taken by the
sheriff to a place to sleep and an
affirmative response by some of
them, whereupon they were given a
lunch, nothing being said about tue
trial of the case or anything that
could be construed as prejudicial to
the defendant, does not constitute
improper conduct on the part of a
sheriff or jury. Reighard v. State.
382

While a jury in a homicide case
were being conducted to view certain
premises, under Sec. 7283, Rev. Stat.,
the mere fact that a juror asked a
woman some questions in regard to
the premises, but it does not appear
that any answer was made or any-
thing done thereat that could preju-
dice the defendant, will not justify
reversal.
Ib.

JUSTICES OF THE PEACE-

Justices courts are of inferior jur-
isdiction, and consent of parties con-
ferring jurisdiction must appear of
record. An appearance at time of
hearing a motion or trial of a case
beyond the statutory time for the
same is not sufficient to establish
consent thereto or confer jurisdic-
tion upon the justice. Thompson v.
Ackerman.
456

Section 6560, Rev. Stat., 93 O. L.,
51 authorizing justices of the peace
to grant new trials in certain cases

upon motion at any time within four
days after entering judgment, does
not authorize the hearing of a mo-
tion for a new trial March 21, where
the judgment was entered March 16,
and motion filed March 17, consent
of parties to such continuance of five
days after entering judgment not
appearing on tue record, and an
order made upon the date of hearing
the motion fixing a time to prepare
a bill of exceptions is a nullity. Ib.

Under Sec. 656, Rev. Stat., 93 0.
L., 104, providing that a justice of
the peace shall fix a time to prepare
a bill of exceptions not less than five
nor more than ten days from date
of judgment or overruling of motion
for new trial, a bill of exceptions
prepared and filed thirteen days
after judgment, as where judgment
was entered March 16, and the bill
of exceptions not filed until March
29, is not part of the record and will
not be considered by a reviewing
court.
Ib.
Notwithstanding a justice was
without jurisdiction to hear a mo-
tion for new trial, grant an order
fixing a time to prepare and file a
bill of exceptions, and the bill of
exceptions was not legally filed, if
these errors are not assigned for re-
view. the court may consider the
case upon its merits, such being the
only errors assigned.
Ib.

The power of adjudication of a
justice of the peace is derived from
the statute, and if not exercised
within the time allowed by law, his
jurisdiction ceases. Hence by ad-
journing the hearing of a motion for
a new trial beyond the time limited
by Sec. 6560. Rev. Stat., by which
his authority to grant new trials is
conferred, his jurisdiction on the
motion is lost unless it appears of
record that the parties consented to
such adjournment.
Ib.

LANDLORD AND TENANT-

In an action for forcible entry and
detainer by the grantee of the les-
sor of certain premises upon which
gambling is conducted by the oc-
cupying lessee it is not necessary to
join as a party defendant the mort-
gagee of the term.
Ib.

A tacit condition is annexed by
law to all tenancies, that the lessee
will not by his unlawful act cause a
forfeiture of the landlord's estate,
or by such act cicate an enforcible

lien upon the landlord's interest in
the leased premises.
Ib.

In an action for forcible entry and
detainer by the owner of the fee
against one in possession of leased
premises, the latter will be presumed
to be the assignee of the lessee un-
less the contrary is shown.
Ib.

Under Sec. 4275, Rev. Stat., the
owner of premises "knowingly per-
mitting" them to be used for gaming
purposes is liable to the extent of
the particular property, and under
Sec. 4276. Rev. Stat., the lessor shall
be liable civilly and criminally as a
principal and to the extent of all
his property unless he declare a for-
feiture.
Ib.

An owner of premises having
knowledge that the lessee is using
the same for gambling purposes and
who does nothing whatever to hinder
or prevent the lessee from so keep-
ing and using the same, "knowingly
permits" such use within the mean-
ing of Sec. 4275, Rev. Stat.
Ib.

Vague and indefinite phrases in a
lease which are irreconcilable with
definite, unambiguous and express
words and phrases, and with the
general scheme and purpose, are in-
operative and must give way to the
latter. Allison v. Coal Co. 504

When an agreement is made by
the owners of a store building, occu-
pied by tenants under a lease for
years, to try to rent the same to
other parties and release the lessees
whenever the former procures a per-
manent tenant, such release does not
become operative until such perma-
nent tenant is procured; the renting
of a part of the store room for tran-
sient purposes would not release the
lessees. Price v. Coblitz.
34

A landlord is not liable to one
who goes upon his premises at the
invitation of a tenant and is injured
through a defective stairway.
Blake v. Harris.
535

LEASES-

See LANDLORD AND TENANT.

LICENSES-

Permission to construct or main-
tain a footway across railroad
tracks, or the construction and main-
tenance of the same by the railway
company, implies a license to foot
passengers to cross the railway at
that point. Their rights, there-
fore, are not to be determined by the

same rule which would apply to
mere trespassers. Lear v. Railway
Co.
797

LIENS-

A conditional sale contract, with-
held from record for six months, but
filed a few minutes before the filing
of a chattel mortgage on the same
property, is sufficient to preserve the
lien, in the absence of any statutory
provision as to when such contracts
shall be filed. Tischler v. Seeley.
750

A traveling salesman is not an
operative within Sec. 6355, Rev.
Stat., creating preferences for wages
due in cases of assignments for cred-
itors. Operatives, In re.
685

See also MORTGAGES.

LIMITATION OF ACTIONS-

In such case suit may be brought
at any time within four years from
the discovery of the fraud. Nye v.
Hart.
419

An action for malpractice is with-
in Sec. 4983, Rev. Stat., the one
year's statute of limitations. Tuck-
er v. Gillette.
401

Section 4981, Rev. Stat., providing
a six years' limitation, runs against
an assessment for losses sustained
by an insurance company, and be-
gins to run at the time demand is
made. Mills, Spellmire & Co. v.
Whitmore.
338

An order by the Supreme Court
fixing the classes of policy holders
and the
each
assessment against
class, "subject to any defense which
any individual member may have
to show that he is not liable," is
available in an action by the re-
ceiver, and the running of the stat-
ute of limitations is not interrupted
by the action of the Supreme Court.
Ib.

An action under the statute to re-
cover possession of real estate, plain-
tiff relying upon a mortgage to prove
title, is not an action upon the mort-
gage itself and is not barred in less
than twenty-one years. Hall v.
Bradfield.

339

In an action under the statute to
recover possession of mortgaged real
estate, condition having been broken,
brought within twenty-one years, a
mortgage is competent evidence of
plaintiff's right of possession at the
time suit was brought. Ib.

LIMITATION OF ACTIONS-Cont.

Section 6113, Rev. Stat., the four
years' statute of limitation applic-
able to executors and administrators
begins to run from the time of the
qualification of such officers not from
the rejection or disallowance of the
claim upon requisition under Sec.
6098, Rev. Stat. The four years'
statute is not applicable to cases
where the claims are rejected; in
such cases the six months' statute,
Sec. 6098, Rev. Stat., is applicable.
Crouse v. Frybarger.
254

General statutes of limitation may
be waived by an executor or admin-
istrator, but statutes or limitation
with respect to actions against exe-
cutors or administrators cannot be
waived.
Ib.

Section 6097, Rev. Stat. and Sec.
6098, Rev. Stat., are in pari materia
and both should receive the same
construction. A claim that would be
barred under Sec. 6097, if rejected
by an executor or administrator, is,
therefore, also barred under Sec.
6098 when rejected on the requisi-
tion therein provided for, although
the words respecting the bar are not
repeated in Sec. 6098.
Ib.
When facts and dates relative to
presentation and rejection of a claim
by an administrator are fully set
out, either in the petition or answer,
an answer averring that "the right
of recovery has long since been
barred" is sufficient to interpose
Sec. 6098, Rev. Stat., providing that
after a claim has been rejected upon
requisition of an heir or creditor,
suit must be brought within six
months of the time of such rejection,
as a defense to the claim. It is not
necessary, under such circumstan-
ces, that the statute should be spe-
cifically pleaded.
Ib.

Under Sec. 4983, Rev. Stat., pre-
scribing that actions for malpractice
must be brought within one year,
after the action accrues, breach of
duty, not knowledge of the fact and
resulting injury, is the criterion
which gives rise to the action and
sets the statute running. Such an
action is, therefore, barred where it
appears from the petition that the
operation from which injuries re-
sulted was performed more than one
year before the filing of the petition.
Fronce v. Nichols.
472

The statute of limitations does
not allow a party to do wrong and
gain rights by it. Hence where an

owner of land adjoining a highway
undertakes to get possession thereof
by trespass no statute of limitations
runs in his favor. Morehouse v.
Burgot.
163

In Ohio, if the cestui que trust has
knowledge of the transaction, and
was under no disability, and his
right to demand and have the funds
has accrued, the statute will run
against his claim. Legacies in the
hands of executors, who have no
duty with respect thereto except to
pay the same, are not of the nature
of continuing and subsisting trusts,
and the statute runs in favor of the
executor and against the legatee
from the time the legacy becomes
due and payable. Ward v. Ward.

59

The rule that where the trustee
is bound by the statute of limita-
tions, the cestui que trust is also
bound, is not applicable in cases
where, if there were no trustee in-
tervening. the statute would not
operate against the cestui que trust,
as, for instance, where the cestui
que trust is a minor or otherwise
disabled from suing on his own ac-
count, or where the claim is not due
so as to give him a right of action
on his own account, or where the
right of the cestui que trust is that
of remainderman, and the life estate
has not ended.
Ib.

Where the devisees and legatees
under a will, devising a life estate
to the husband of testatrix, with re
mainder in her sons after payment
of certain legacies, mutually agree
that the legatees shall not be paid
until after the death of the father,
and in accordance therewith the
receipt and enjoyment of the legacies
are postponed until the father's
death, such postponement of the
time of payment has the effect, as to
all parties concerned, of postponing
the beginning of the running of time
under the statute of limitations un-
til the father's death, and it is not
material whether or not the agree-
ment was based on a correct con-
struction of the will.
Ib.

The right arising out of the im-
plied promise of defendant to con-
tribute to the payment of legacies
is not barred because no action
ripened thereon until after the death
of his father.
Ib.

A claim based upon the payment
of money by mistake, or the wrong-
ful appropriation and withholding

MASTER AND SERVANT-

Whether a fireman and brakeman
are fellow servants is a question for
the jury to determine, evidence hav-
ing been offered of their relative po-
sitions, and the court properly re-
fused to give a special charge as-
suming that they were fellow ser-
vants, and therefore, that no re-
covery could be had by plaintiff.
C. &. M. V. Ry. Co. v. Thompson.
326

The business of coupling cars is a
hazardous one, the ordinary risks
of which a brakeman assumes; but
if a brakeman is injured by the gross
negligence of an incompetent em-
ploye of the company, who was
known by it to be incompetent, he
cannot be defeated in an action for
personal injuries simply because he
voluntarily put himself into or re
mained in a known place of danger.
Ib.
Where a rolling mill company em-
ploys a boss roller under the rules
and regulations of the amalgamated
association, the boss roller to em-
ploy his own assistant roller,
roughers and heaters; the compen-
sation to be an agreed price per ton
for labor performed divided among
the boss roller and his assistants,
a certain percentage to each as pro-
vided by the rules of such associa-
tion; the work to be continuous and
the output of the mill to be under
the direction of the general superin-
tendent and to his satisfaction; the
relation betwen the company and
the employee is that of master and
servant and not that of contractor
and contractee. Andrews Bros. Co.
v. Burns.
305

In such case when a rougher is
injured through the negligence of
the assistant roller who is the su-
perior of the rougher, and without
fault upon the part of the rougher,
the company is liable.
Ib.

A promise on the part of an em-
ployer to repair a defective machine
does not relieve the employee from
exercising ordinary care, commen-
surate with the danger, in the ope-
ration of that machine. Brown Oil
Can Co. v. Green.
510

A man thirty-nine years old, ex-
perienced in the use of machinery,
who continued to operate a tin-press
after knowledge of its defective
condition and promise on the part
of his employer to repair, using his
fingers to remove the pressed tin

when he might, if he elected to
operate the defective machine, have
used some other and safer means for
doing that work, was guilty of neg-
ligence and cannot recover for re-
sulting injuries.
Ib.

Under the foregoing rule, an en-
gineer and a brakeman upon the
same train in the promotion of a
single object, i. e., the moving of
the train, associated together in
such a way as that they will natur-
ally be careful of the train and
therefore careful of one another, are
fellow servants in the same depart-
ment. Hill v. Railway Co.
241

Proper rule in the determination
of the relation of superior and
fellow servants of a railway com-
pany.
Ib.

Legislature in adoption of Sec.
3365-22, Rev. Stat.. 87 O. L., 149,
must be held to have had in view
the doctrine theretofore applied in
other states, as the legislature does
not undertake to define what shall
be deemed a different department or
branch of service, but leaves that to
be determined by the courts, as we
think upon principles analogous to
those laid down in cases where the
departmental limitation had there-
tofore been adopted and applied.
Ib.

A charge which directs the jury
that if they find there was no rule
provided by a railroad company for
warning employees on its train
when emergency brakes were to be
applied, yet if the employee knew
there was no such rule and con-
tinved in the service of the com-
pany without complaint or objec-
tion he assumed the risk incident
to such failure to provide rules, is
objectionable in failing to state the
qualification that this would depend
upon the knowledge or lack of
knowledge of the employee of the
risk or danger incident to an ope-
ration of the train without such a
rule.
Ib.

A charge that employers are
bound to adopt only such rules as
experience shows to be reasonably
necessary, is too narrow.

Ib.

The true rule, within Sec. 3365-
21, Rev. Stat., relating to defective
machinery and prima facie negli
gence, in respect to all machinery,
is that it should be as perfect as
machinery that is in ordinary use
and as it could be maintained by
the exercise of ordinary care.
Ib.