con-

Section 16 of the Mechanics'
Lien Law of 1877, 74 O. L., 668, now
sec. 3203, Rev. Stat., includes all as-
signments of whatever character
and whenever made. Bank v. Cin-
cinnati.
545
Under the foregoing rules the
liens for material furnished
tractors with a municipal corpora-
tion in the construction of a sewer
are not defeated or postponed by an
assignment by the contractors
their claims against the city to a
bank, to secure advances to carry on
the work, although such assignment
was made prior to the time when the
liens were acquired.
Ib.

of

The words "who has furnished,"
as used in said section, are not in-
tended to designate or fix qualifica-
tions of time with reference to the
assignments that are governed by
but
the act,
are intended as
descriptio personarum.

Ib.
The delivery contemplated by
the Mechanics' Lien Law, is a deliv-
ery which vests in the head contract-
or the title or ownership of the ma
terials for which a lien or claim to
priority is sought.
Ib.

A party who, in good faith, fur-
nished 1,849,000 brick under an es-
timate that 1,900,000 would be re-
quired for a certain sewer improve-
ment, the brick being delivered on
the cars and hauled by the contract-
or to where they were needed for the
work, is entitled to a lien for the full
amount of his claim, although 55,000
of the brick, after they had passed
out of his possession, were diverted
and used in another improvement;
and although, under the circum-
stances stated, he knew that the
bricks were so used and made no ob-
jection.
Ib.

The delivery of brick along the
line of a proposed improvement,
where the time in which it was to be
completed was uncertain and the
quantity of brick to be used could
not be determined in advance, and
where the brick were received sub- •
ject to approval by the city engineer,
amounts to a simple tender of the

from

material and the delivery,
which the statute will run against
the lien of the material man, is not
complete until the material is ac-
cepted by the city engineer.

MORTGAGES-

Ib.

An action to foreclose a mort-
gage given to secure a promissory
note is not triable by jury. Brigel
v. Creed.
214

But one satisfaction of the debt
can be had and any attempt upon the
part of plaintiff to impose upon the
defendant by securing a double sat-
isfaction would be prevented by a
court by proper proceedings.

Ib.

Before the decree in the fore-
closure suit was entered the same
plaintiff brought another action on
his note in which he sought a per-
sonal judgment against the defend-
ants. The same defenses were set
up in the second action as in the
first. Upon the trial of that case, in
order to prove the indebtedness of
the defendants to him, the plaintiff
introduced the record in the other
case, in which appears the finding
of the amount due on the note. The
court allowed the introduction of the
record and held it to be conclusive
on the question of the amount due.
Ib.

In an action to foreclose the de-
cree may contain a provision that if
the proceeds of sale shall not be suf-
ficient to pay the costs and the in-
debtedness, the plaintiff shall have
an execution for the deficiency. Ib.

MUNICIPAL CORPORATIONS-

An ordinance, granting a fran-
chise to operate a natural gas plant,
where the terms of eight members of
the council expired before it was fi-
nally passed and the terms of fifteen
other members expired before it
could take effect by publication, is
void under sec. 1691, Rev. Stat.,
whereby a council is prohibited from
entering into a contract which is not
to go into full operation during the
term for which all members were
elected. Kerlin Bros. Co. v. Toledo.
509

Bids for a natural gas plant,
owned by a municipal corporation,
indivisible parts of one transaction;
contract of sale not completed until
the passage of the franchise and gas
rate ordinances; and where the con-
tract was not so completed during

MUNICIPAL CORPORATIONS-Con.
the term for which all members of
the council were elected, all pro-
ceedings relative to a sale void. Ib.

Where the bidders included in
their bid the granting of an ordi-
nance fixing satisfactorily to them-
selves the price they should charge
for gas, and such ordinance was not
mentioned in the advertisement, for
bids, there was no competition as to
that ordinance and it was not com-
petent for the council to enter into
a contract based on such a bid. Ib.

an

Where a natural gas plant own-
ed by a municipal corporation is of-
fered for sale, which must be made
under sec. 2673a, Rev. Stat., some
action of the council, by order, reso-
lution or ordinance, indicating
intention to offer the plant for sale,
is necessary, inasmuch as, by ex-
press terms of the statute cited, the
offer can be made only upon vote
of three-fifths of the members of the
council.
Ib.

A resolution directing the city
clerk to advertise for bids for a nat-
ural gas plant, is a resolution of both
a general and a permanent nature,
within the meaning of sec. 1694, Rev.
Stat.
Ib.

Where part of a natural gas
plant consists of real estate, and the
council offers it for sale as an en-
tirety, in order to make a valid con-
tract, it is necessary to proceed un-
der sec. 2673a, Rev. Stat., requiring
advertisement for bids; and in order
to secure free and fair competition
the bids should respond to the ad-
vertisement.
Ib.

Under the governmental act for
the city of Columbus, an ordinance
which had been read on two sep-
arate days before the regular elec-
tion for councilmen, may, after the
annual organization of the council
following said election, be read a
third time and passed. The unfin-
ished business of the old council does
not die with the expiration of the
terms of the old members, although
under the law in question, the
terms of all members, save where
by operation of law a successor is
not elected and qualified, expire at
the same time and an entirely new
membership is elected. Smith v.
Railway Co.
441

A vote on the passage of an ordi-
nance of a general or permanent
nature without having such ordi-

nance read on three different days,
or such reading properly dispensed
with, is a vain and useless act, and,
whether favorable or unfavorable
to the ordinance, is a nullity. Ib.

Advertising for bids is not a
misapplication of corporate funds,
where individuals have subscribed a
sufficient sum to meet the expense
thereof, and the sum is subject to the
order of proper officials. Aydelote
v. Cincinnati.
710

The provisions of sec. 2473, Rev.
Stat., requiring the owners of two-
thirds of the ground of a square to
petition for an ordinance blocking
such square against the erection of
wooden buildings, are jurisdictional
and without such a petition the
council has no right to act. Bed-
ford v. Tarbell.

337

A widow owning a dower inter-
est in such a square, is an owner
within the meaning of the statute to
the extent of such interest and may
petition therefor; but such widow
has no right to sign for the remaind-
er of the property.
Ib.

Section 2473, Rev. Stat., permit-
ting municipal councils, upon proper
petition, to pass ordinances prohibit-
ing the erection of wooden buildings
whose outer walls are not of iron,
stone, brick, cement or mortar, or
some of them, does not authorize an
ordinance prohibiting the erection
of "any wooden building" and an or
dinance to that effect is void. Ib.

A property owner is not estop-
ped from contesting the validity of
such ordinance, on any ground, by
having signed and filed the petition
therefor.
Ib.

An injunction granted on a pe-
tition by a municipality to prevent
defendant from completing a wooden
building within a square blocked by
an ordinance against the erection of
wooden buildings, which ordinance
was held to be invalid and the in-
junction to have been wrongfully
granted, was ancillary and only the
expenses incurred by the injunction
itself, not the expenses in contest-
ing the suit, can be allowed in a suit
on the bond. Tarbell v. Ennis. 346

A municipality has no power to
make the violation of such an ordi-
nance criminal or to make the or-
dinance penal in its nature. Such
power, if it exists, must be delegat-
ed in specific terms. Cline v. Spring-
field.
389

The term "any gas company,"
when used in such an ordinance, is
general and comprehends natural as
well as artificial gas companies, al-
though, at the time of the passage
of the ordinance, the use of natural
gas was unknown.
Ib.

The mere fact that city officials
effected a saving to the city by the
adoption of a certain method of con-
tracting, would not make an act
valid which the law declares is in-
valid or authorize payment under
the ordinance in question. Scio
(Vil.) v. Hollis.
99
ordi-

Under an appropriating
nance, in a city of the first grade,
first class, containing the following
item: "For Main Pipe Extension:
Salaries and wages $5,000; material
and supplies, $9,200," the work of
laying main pipe could not be done
by one who undertakes to do a cer-
tain amount of work for a fixed sum,
over which work the city authori-
ties would have no power except to
see that the terms of the contract
were complied with, because money
SO paid is neither "salary" nor
"wages."
Ib.

Nor could the material and sup-
plies be paid for under the ordinance
in question, inasmuch as they are
not bought by the city by direct and
independent contract, but are includ-
ed in and to be paid for with the
completed job.
Ib.
See also REAL PROPERTY; WIT-

NESSES.

NATURAL GAS TRUSTEES-

See OFFICES AND OFFICERS.

NEGLIGENCE-

The law requires the utmost
care and skill which prudent men
are accustomed to use under similar
circumstances, but the rule is not to

be pressed to an extent whica would
make the conduct of a business so
expensive, as to be wholly imprac-
ticable. Dussel v. Street Rd. Co.
631

In an action for personal inju-
ries caused by the negligence of de-
fendant, it is not necessary for plain-
tiff to allege that the injury was
caused without negligence on her
part, but having as pleaded, and is-
sues having been taken thereon, the
defendant is entitled to the benefit of
the defense of contributory negli-
gence, the same as if affirmatively
alleged in the answer.

Ib.

is a cause

"Proximate cause"
from which a man of ordinary ex-
perience and sagacity would foresee
that the result would follow, that
the injury was of such a character
as might reasonably have been fore-
seen or expected as the natural and
ordinary result of the negligence
complained of.
ib.

There is no absolute rule requir-
ing one driving along a street upon
which are the double tracks of a
street railroad, to either stop, look
or listen before crossing such tracks,
or to look back one or more times
before going upon the tracks, to as-
certain whether or not there is a car
operated by electricity coming from
behind, in such a manner as to prob-
ably or inevitably bring about a col-
lision. The question whether or not
the conduct of a party in driving up-
on the tracks of a street railroad
constitutes negligence should, in
each case, be submitted to the jury.
Lewis v. Street Railway.
53

It is not negligence per se to
ride upon the platform of a railroad
car: and where a passenger
in a
crowded railway car surrendered his
seat to a lady and went out upon the
platform, intending to go into an-
other car, and it is alleged that the
other cars were also crowded, and it
is also alleged that plaintiff could
not get back into the car which he
had left on account of its crowded
condition, it cannot be said that he
was negligent in remaining on the
platform. Shrum v. Railway Co.

244

Where a petition alleges that a
car was so overcrowded that the
plaintiff was obliged to ride upon the
platform, and that the train broke
in two, and the passengers inside the
ca rushed out and crowded the
plaintiff off of the car, causing him

NEGLIGENCE-Continued.

The fact that an employee in a
factory, after being caught in a cyl-
inder, did not use the devices for his
safety, in the form of a rope or lever
which would have stopped the cyl-
inder, would not be such negligence
as would prevent recovery, provid-
ing the defendant was guilty of neg-
ligence. Connors v. Golding. 614

To recover in an action against
the owners of a factory for personal
injuries caused by the negligence of
an employee, it is necessary to
prove that he was the representative
of the defendant for the time being
at least and that he had authority
to direct and control the plaintiff,
but it is immaterial by what man-
ner he was commissioned with such
authority, whether by express di-
rection or not.
Ib.

The burden is on the plaintiff to
show that the injury was caused by
the negligence complained of, with-
out regard to whether the defendant
was negligent in other respects. Ib.

A railroad conductor, in the dis-
charge of no duty connected with
his employment, riding on a pass
upon another train than his own,
from the point of destination of his
train to his place of residence, with
the consent, permission and knowl
edge of the conductor of the other
train, is not a fellow servant of such
conductor; and the negligence of the
latter will not defeat a recovery by
the former for injuries caused by
the negligence of the conductor in
control of such train.
Railway Co.

See also RAILROADS.

NEW TRIAL—

Bycraft

V.
652

An error in overruling a motion
for a new trial, which the court de-
clines to grant unless applicant will
give bond, is waived by subsequently
giving the bond and obtaining the
new trial. American Exchange Bank
v. Brenzinger.
208

A party who voluntarily, with-
out fraud or mistake, gives a bond
required as a condition to a new
trial, granted in furtherance of jus-
tice and to which applicant was not
legally entitled, and who receives the
benefit of a new trial, is estopped
from denying liability under the
bond.
Ib.

The granting of a new trial, un-
der circumstances stated, where no
legal right thereto existed in favor
of the applicant, constitutes a suffi-
cient consideration for the bond re-
quired.
Ib.

It is not the duty of the court in
all cases to either absolutely grant
or overrule the motion for a new
trial. Cases frequently arise where
the motion for a new trial is address-
ed to the discretion of the court and
in such cases, if a new trial is grant-
ed, it may be granted upon condition.
Ib.

Where the applicant for a new
trial, through the inadvertence or
misapprehension of his attorney,
failed to offer material evidence up-
on the first trial and voluntarily,
without fraud or mistake, gives a
bond to pay any judgment rendered
against him in a new trial, which is
granted upon the giving of the bond,
not because applicant was entitled
thereto, but solely in furtherance of
justice, such bond, unless prohibited
by statute, constitutes a valid com-
mon law obligation.
Ib.

Juror listening to the conversa-
tion of an interested party addressed
to some third person, which may
have been prejudicial to a party to
the case, sufficient cause to warrant
the court in granting a new trial,
even though it is not shown, as a
matter of fact, to have influenced the
verdict. Briggs v. Rowley. 177

A petition for a new trial filed
under sec. 5309, Rev. Stat., must set
out the issues upon the former trial
and the evidence given thereon, to-
gether with the newly discovered
evidence; setting forth merely the
newly discovered evidenc is not suf-
ficient.
Ib.

If the character of newly discov-
ered evidence merely tends to im-
peach that of a witness upon a for-
mer trial, it is not newly discovered
evidence within the meaning of the
term, as used in sec. 5309, Rev. Stat.,
and will not avail as a ground for a
new trial.
Ib.

The rule with regard to all nui-
sances is, that the injury occasion-
ed thereby must be real and sub-
stantial, and such as impairs the or-
dinary enjoyment, physically, of the
property within its sphere. Thus,
where the effect of vibrations, caus-
ed by the use of drop hammers in a
factory, when it reaches residences
in the neighborhood, is so slight as
to be almost imperceptible, no action
lies therefor. Shaw v. Forging Co.
107

In deciding whether noises con-
stitute a nuisance, the test is wheth-
er the noise is of such a character as
would be likely to be physically an-
noying to a person of ordinary sen-
sibilities, or whether the trade out
of which such noise arises, is carried
on at such unreasonable hours as to
disturb the repose of persons dwell-
ing within its sphere; and regard
must also be had to the quality as
well as to the quantity of the noise.

Ib.

The operation of drop-hammers
in a factory in a residence neighbor-
hood results in a degree and kind of
noise that would be productive of ac-
tual physical discomfort and annoy-
ance to a person of ordinary sensi-
bilities.
Ib.
There is a time for work and a
time for rest and where one seeks
to work all the time, to the discom-
fort and disquietude of his neighbor
and to a deprivation of the natural
rest to which the neighbor is enti-
tled, as by the operation of a factory,
in a residence district, both night
and day, there is a material inter-
ference with the neighbor's rights,
for which he is entitled to a remedy.
Ib.

Where a nuisance is sought to
be enjoined, and the injury com-

plained of is the destruction of the
comfortable use and enjoyment of
plaintiff's homes, by reason of noises
resulting from the operation of ma-
chinery by defendant, it is not neces-
sary that the plaintiff, before apply.
ing for equitable relief, should estab-
lish his right by an action at law.
Ib.

In an action to enjoin a nui-
sance, the defendant cannot avail
itself of the fact that the plaintiff
located in the vicinity subsequent to
the establishment and operation of
defendan's plant, when it appears
that the nuisance complained of is
caused by increased noises caused
by a change of methods in operating
the plant and made subsequent to
plaintiff's location.
Ib.

An injunction restraining a nui-
sance should be withheld for a rea-
sonable time to give the defendant
an opportunity to abate the nuisance
if he so desires.
Ib.

OFFICES AND OFFICERS—

Public officers, as such, have no
right to bring suits in their own
names, unless authorized to do so
by statute; and as the statute no-
where gives natural gas trustees
such authority, they have no power
to bring suit to enjoin the sale of
a natural gas plant belonging to the
corporation. Kerlin Bros. Co. v. To-
ledo.
509

While public officers may be des-
ignated as trustees, or directors, or
agents, they are not in any sense
trustees of an express trust. Nat-
ural gas trustees, therefore, have no
authority, by virtue of sec. 4995,
Rev. Stat., providing that the trus-
tee of an express trust may bring an
action without joining the person
for whose benefit the suit is prose-
cuted, to bring suit to enjoin the sale
of a natural gas plant by the corpo-
ration.
Ib.

Section 2966-3, Rev. Stat., pro-
viding for the appointment, qualifi-
cation, etc., of deputy state super-
visors, is not unconstitutional from
a lack of uniformity in eliminating
from its operation cities governed

by other statutes. Under the au-
thority of State ex. rel. v. Buckley,
60 Ohio St., 273, when a statute upon
a subject of a general nature is made
to extend to the whole state in one
part thereof, and in another part an
attempt is made to limit its opera-
tion to territory less than the state,