Volume 1 — Ohio Nisi Prius Reports

<p>1. Where an allotment is made in partition proceedings, by the express terms of which a right of way is reserved to the owners of the land allotted on and along the streets marked and laid down on a map attached to, and made a part of said proceedings, such right of way is limite! to such owners, and does not constitute a dedication of said streets to the public. Such dedication cannot be extended beyond the terms limited by the dedicators, although such streets may have been open to use by the public, and ordinances may have been passed by the common council in regard to them; and the streets may have been described and set forth in conveyances on record for many years.</p> <p>2. Non-user of streets within a municipal corporation, by the public, must continue for twenty-one years, in order to work an abandonment.</p>

<p> Jiquiiy Power of Court to appoint a Receiver. </p>

<p>A voter at a municipal election put a cross-mark on a ticket in the place provided to indicate a straight vote for that ticket; put no other mark on that ticket, but drew a line diagonally across the other ticket printed on the same ballot, there being but two tickets on the ballot, in such a way as to emphasize his intention to vote a straight ticket. Held: That his error in drawing such line is technical only, and his intention to vote a straight ticket being clear, the vote should not be rejected, but counted for all the candidates on the ticket on which the cross mark was made. And generally where the voter has indicated his intention to vote a straight ticket by placing a cross-mark in the place provided at the top of the ticket, his vote should not be lost because of additional marks put by him on another ticket merely for the evident purpose of emphasizing such intention.</p> <p>Whether error lies to the court of common pleas from the decision of a village council in a contest before it of the election of its own members. Quaere.</p>

<p>A creditor is entitled to an all oír anee of his claim as it stood at the date of the assignment of the debtor, and to receive dividends on the whole claim, notwithstanding the fact, that, subsequent to the assignment and prior to the presentation of the claim for allowance, the creditor had subjected collaterals held by him, and applied the proceeds on account of the claim ; provided only, that he shall not receive, altogether, more than the amount of his claim.</p>

<p>1. An action can be maintained by an executor under sectio.n 6202, Rev. Stat., to obtain the judgment of the court as to the true construction of a will, only in cases where a trust is involved, or where the executor has duties to perform in carrying out the provisions of the will, which require the guidance or direction of the court.</p> <p>2. A testator devised to his widow “ the proceeds of his real estate.” The will contained no residuary clause, and made no other disposition of his real estate, and gave no directions in relation thereto, and no authority or control over the real estate was given to the executor#. Held, that no trust was created by the will, and no duties of the executors required the guidance or direction of the court; and that a petition filed by the executors under section 6202, Revised Statutes, should be dismissed for want of jurisdiction.</p>

<p>The widow of a deceased soldier, who draws a pension, a portion of which is drawn on-account of her child, under the provisions of section 4702, of the Revised Statutes of the United States, is not required, after such child attains its majority, to pay over . to it the amount so received.</p> <p>“ For each child,” as used in said section, means, because of the existence of such child, and not for the use of the ejiild to be accounted for by the widow as for money had and received.</p>

<p>1. A chattel mortgage given by a failing debtor prior to his assignment to secure payment of an attorney’s fees in connection with the assignment must be denied a prefer- ' fence.</p> <p>2. An attorney who is employed to collect a claim may, without express authority so to do, make the affidavit required by section 4154 to a chattel mortgage securing the claim.</p> <p>3. But where such an affidavit is made by an attorney prior to his employment to collect the claim, a subsequent ratification of his action by the mortgagee does not give validity thereto.</p>

<p>Heard on demurrer to petition.</p>

<p> Mortgage contracts between a building association and its borrowing members. </p> <p>The mortgage contracts between borrowing members and the building association create vested rights as to rebate of interest and payment of dividends in favor of the former, which the latter can not modify without their consent, and a resolution of the Board of Directors or the amendment of the constitution by doing so are ultra vires.</p>

<p> A Re-delivery Bond Evidence of the Identity of Goods Described in a Writ of Replevin. </p>

<p>A contract of partnership provided that the net profits realized from the business should be divided equally between the partners; and that each partner may draw $5,000 out of the concern, hut no more, during any year until final liquidation; that interest should be allowed and credited to each partner upon ail cash he may contribute to the capital, and interest was allowed and credited on the amounts of profits credited to each over the amount drawn out.</p> <p>ffeld: That the profits so credited to each, over the amount drawn out, became capital.</p>

<p>1. In applying the principle of Haviland v. City of Columbus, 50 Ohio St. 471, the question whether a lot has more than one front is one of fact to be determined by the circumstances of the particular case under examination.</p> <p>2. Under the facts of these cases the lots should be held to front lengthwise as well as breadthwise.</p>

<p>1. Under the circumstances as set forth in the following opinion, the ambiguous designation of the length of certain lines upon the plat of the subdivision of Carrsville, in the city of Cincinnati may be made certain by reference to the deeds made by the grantor and conveying with reference to said plat.</p> <p>2. The street or alley lying south of Eastern avenue and lying between Brooklyn street and Hazen street is 16 feet in width, and its northern side is 121 feet south of Eastern avenue.</p>

<p>The Trunk Act [84 Ohio Laws, 75] construed.</p> <p>1. The act entitled “An act to provide for the construction of trunk sewers in cities of the first grade of the first class,” passed March 12,1887, (84 Ohio Laws, 75), is limited in its application to the construction of trunk sewers, and does not apply to lateral or branch sewers.</p> <p>2. The act confers upon the board of public affairs not only administrative power in the construction of such trunk sewers, but legislative power as well, to pass the resolution declaring it necessaey to improve, the ordinance to improve, and the ordinance to contract.</p> <p>3. A demurrer will lie to a petition for the recovery of an assessment under the trunk sewer act which does not contain allegations .sufficiently descriptive of a trunk sewer.</p>

<p>Il is not consistent with our legislation upon the subject of divorce and alimony, judgments and orders, to undertake to enforce the payment of a judgment in money awarded as alimony in gross, under our statute, by a contempt proceeding against the husband. Proceedings in aid of execution are the proper remedy.</p>

<p>1. Where, in an action of foreclosure, by the order of the court some other party than the sheriff is ordered to sell the land, the fees of such party for making such sale, ought to be determined by a rule similar to that by which the fees of the sheriff in such matters are determined. But where the party ordered to sell the land is the mortgagor’s assignee for the benefit of creditors who, on his own motion, asked to be allowed to make the sale, in determining the fees he is entitled to for making such sale, there should be first taken into consideration the fees he is entitled to from the proceeds from all other bources that came into his hands as assignee, to keep his tees within the limits provided by law from the sum total of all moneys that come into his hands.</p> <p>2. Where a wife has signed a mortgage in connection with her husband, under the act passed in 1891, (88 Ohio Laws, p. 181), she is entitled only to dower out of the surplus after the payment and satisfaction of such claims as would preclude the allow- , anee of dower.</p> <p>3. A party is entitled to allowance in lieu of homestead at the time the distribution is made.</p> <p>4. Where a party leaves his homestead for temporary purposes only, with no intention to abandon same, he does not lose the right he may have had to have a homestead set off.</p> <p>5. Where a party is driven from the homestead by stress of circumstances, yet never abandons his claim to an allowance in lieu of a homestead, but has always insisted that such allowance should be made to him — for instance, where a party is driven from the homestead by a judicial sale thereof under which he has to give up possession of the property — there is no voluntary abandonment of the homestead, such as would bar the party’s right to the allowance in lieu of homestead. — (Ed. Bulletin.)</p>

<p>Action for damages for personal injuries.</p>

<p>1. A railroad corporation, in the proper construction of its road bed, having thrown earth, etc., upon a strip of land adjoining its right of way, may appropriate the land so taken by condemnation proceedings.</p> <p>2. The power conferred by statute is to appropriate so much as may be deemed, necessary tor its railroad. The corporation is to determine how much is necessary, and unless there is a clear abuse in the attempted exercise of this power, the court upon the preliminary hearing will not interfere to determine the matter.</p> <p>3. Railroads, from'the nature of the locomotion thereon, require an evenness of grade, and this necessitates the cutting of hills and the filling of valleys. In making these cuts or excavations, earth and material must be removed, and where not proper to be used in a fill, a place to put such removed material is as much of a necessity as any other matter in the construction of the railroad. Likewise it is necessary to acquire sufficient width of right of way for sloping embankments, self-supporting on either side of the roadway. The appropriation of property for either of the above purposes, is an appropriation for railroad uses and purposes, within the meaning of sections 3270, 3281 and 6416, of the Revised Statutes,</p> <p>4. The power of eminent domain attaches to every kind of interest in real property.</p> <p>5. The mere fact that a railroad in the building and operation of the road seizes the property of another and converts it to its own use, cannot defeat its right to appropriate the same, in the manner provided by law, and thus render to the owner fall compensation therefor, as by the constitution required; Provided always that such property was necessary to construct, maintain and operate the railroad, in the usual and ordinary manner in which railroads are constructed, maintained and operated.</p>

<p>1. Boards of review are independent tribunals, created by the legislature for the purpose of assisting in carrying on an important branch of the government; clothed with power to add to or deduct from tax returns any amounts upon evidence satisfactory to themselves. While acting within the scope of the authority conferred, their conclusions are not subject to review by the courts, but stand as the judgments of tribuidas entirely independent of any other judicial action than their own.</p> <p>2. Before the power conferred can be exercised, there must be a concurrence of certain jurisdictional facts: (1 ) The board must act as a board. (2) The reasons for taking action must be set out in the journal of proceedings. (3) The board must have evidence of some kind on which to base its conclusions.</p> <p>3. A court of equity can inquire into the existence of these jurisdictional facts, and for that purpose may go behind the record and look into the proceedings; but cannot require the board to disclose what the evidence before it was.</p>

<p>Power of a general agent to bind a fire insurance company by preliminary contract.</p> <p>A general agent of a fire insurance company may bind the company by preliminary contract for insurance. "Where the agent represents a number of companies, he must, in some way, designate ihe company for which he contracts, in order to bind it, but notice to the company of such designation is not necessary.</p>

<p>1. S. gave to T. four negotiable promissory notes and four mortgages, each mortgage being on a separate lot and securing a separate note. Each mortgage contained a stipulation that if the interest shall not be paid when due and the same shall remain in arrears for 90 days, then the whole principal shall become due and payable. Said stipulation was not contained in thelnotes. Subsequently, for a valuable consideration, B. agreed with S. that he would pay said notes. Prior to the maturity of the notes, but more than 90 days after a default in the payment of the interest, an action was brought to obtain a personal'judgment against B. for the full amount of the principal of the notes. Meld, that áuch action cannot be maintained.</p> <p>2. Several causes of action for the foreclosure of mortgages cannot be joined in one suit, when the mortgages are on separate lots and secure payment of separate debts, although all the parties to each cause of action are the same. Such causes of action are not included in the same transaction, nor in transactions connected with the same subject of action, and they are not upon Contracts express or implied.</p>

<p> Corner lot assessments dependent on the character of the “permanentand not on temporary improvements. </p>

<p> Corner Lot Assessments. </p>

<p> Comer lot assessments involving severance of lot, accessory entrance, etc. </p>

<p>The assessable frontage of a triangular corner lot (platted and used as per attached exhibit) does not exceed the length of its base or rear line on its greatest breadthwise frontage.</p>

<p> Turnpike easements and the rights of the abutting owners of the fee therein. </p> <p>A turnpike company, has no grant or right by virtue of its easement to lay and maintain ■water pipes for uses other than .to maintain its way or for the benefit of public travel; such right rests in the abutting owner of the fee, or their licensee, and while the turnpike company is entitled to compensation for any injury to the surface way, it is not entitled ;to an injunction to prevent the laying of such pipes, or under ordinary conditions to prevent a temporary disturbance of the surface of the roadway.</p>

<p>Res Adjudícala.</p> <p>In a former suit between the same parties, the plaintiff averred the same cause of action, to-wit: the wrong done by the defendants in subjecting her property, a vacant corner lot, to an illegal and invalid assessment for a street improvement, and specified as one ground or reason for her complaint that such assessment exceeded 25 percent, of the value of her said property, and she prayed for an injunction therein, and for general relief. The defendants made specific and general defense to her complaint, asserting the validity of said assessment. Upon trial on the merits, the court found the equities with the defendant, and dismissed the petition at plaintiff’s costs. Thereafter plaintiff brings this suit against the same defendants, setting up the same cause of action, praying for the same relief from the same assessment, hut specifying a different ground or reason for its illegality and invalidity, to-wit: that it was excessive because it was made upon the lengthwise instead of the breadthwise frontage of her said lot; held, that the defense of res adjudícala was good, and that plaintiff was estopped by -the decree in her former suit.</p>

<p>JL. A jury whose names are placed ¡in the wheel, and drawn therefrom as provided by the act of April 23,1894, (91 v. 176) is a Iggally constituted jury.</p> <p>2. The commissioners of jurors, appointed in accordance with said statute, are commissioners de facto, if not de jure, and so long as they hold the positions and perform the duties required of them by said statute, their acts are legal.</p> <p>3. The acts of an officer de faeto, when questioned collaterally, are as binding as those of an officer de jure. (Ex parte Strang, 21 Ohio St. 610.)</p>

<p>Where part of a town hall, erected by taxation, in a village, is rented out for private purposes or business, to that extent it is subject to taxation. The legislature has no power to exempt it from such taxation.</p> <p>Section 2732, Revised Statutes, as amended May 21, 1894, (91 O. L. 393), considered.</p>

<p>The rule that in ascertaining boundary lines, course and distance must give way to natural objects, must be exercised with a sound discretion ; but when there is not an object called for and proved, the corner must stand where course and distance lead.</p>

<p>1. Where a street assessment is found to be excessive, or the proceedings in making the improvement or assessment are found to be defective, and the court proceeds under the law (sec. 2289) to fix the amount properly assessable, interest may be allowed thereon from the time fixed by the ordinance for the payment of the assessment. Gest v. Cincinnati, 26 Ohio St. 275.</p> <p>2. If installments have been paid on account of such erroneous or excessive assessment, any excess thereof so paid, whether principal or interest, should be credited upon the subsequent installments, not ratably, but in the order in which they mature. Pike, v. Cummings, 36 Ohio St. 213.</p>

<p>Decision on motion to set aside sale.</p>

<p>What constitutes sufficient allegations in indictment for soliciting bribe — Duplicity— Construction of Section 6900, Dev. Stat.</p> <p>1. ¡Where the offense is in the statute marked by the disjunctive or, the indictment may Weil charge by substituting the conjunctive and.</p> <p>2. In a prosecution against a public officer for soliciting a bribe, under see. 6900, Bevised Statutes, the means of solicitation need not be set out in the indictment.</p>

<p>1. Where an assignee, for the benefit of creditors, elects to occupy premises leased to his assignor, he becomes personally liable under the covenants of the lease.</p> <p>2. Carrying on the business in the premises is evidence of such election.</p> <p>3. Whether the assignee is not bound by virtue of the deed of assignment itself without the election, quaeret</p>

<p>Assignment — Secret agreement to give a preference— Validity of debts and priority of lien— “ Operative ” defined.</p> <p>1. An agreement by a failing debtor to give a preference to secure a bona fide indebtedness, in tbe event of an assignment, does not invalidate such preference subsequently given, in performance of such secret agrément.</p> <p>2. Construction of section 6366. Rev. Stat., as to -who is an operative.</p> <p>3. The right to take a lien is not assignable.</p> <p>4. Sections 3206a and 6355, Rev. Stat., are not antagonistic.</p>

<p>1. In an action where property is attached, and summons returned “not served,” and the defendant is brought.in by publication, made eight months after the return of summons, the lien of the attachment thus created wili be superior to the liens of attachments issued and levied on the same property after the commencement of such action, and before said publication was made.</p> <p>2. An action is not commenced alone by filing a.petition and an affidavit for publication, and making publication, but a summons must be issued whether service can be had only by publication or not.</p> <p>3. Property seized under an order of attachment issued in a case where no summons was issued, creates no valid lien on the property as against other lienholders.</p>

<p> Liability of a carrier for merchandise checked as personal baggage. </p>

<p>Duty of a party to a law suit to give his deposition before a Notary Public at the summons of the opposite party to the suit — Commitment of party for refusing to answer questions, as for contempt, by Notary — Sections 5265 and 5266, Pen. Slat., construed.</p>

<p> Oil Lease. </p> <p>1. The holder of a lease of lands granting to him the exclusive right to mine for oil or gas is required to drill on such lands, within a reasonable time, such number of wells and at such places as will reasonably protect said lands from drainage of oil or gas through wells on adjoining lands, and will reasonably exhaust the oil or gas in the lands leased, even though the lease be silent as to the number of the wells to be drilled.</p> <p>2. If the lessee fails to drill such wells within a reasonable time, the lessor may by action procure a forfeiture of such exclusive right of the lessee to such an extent as to permit him, the lessor, to drill such additional wells as are necessary to reasonably guard against such drainage through wells on adjoining lands, and to properly, exhaust the oil or gas in the lands leased.</p> <p>3. Although there may be a number of wells on the adjoining lands, so located as to probably drain oil or gas from the lands in controversy, still, if there are on the lands in controversy an equal number of wells so located as to probably draw oil or gas in like quantities from the adjoining lands, the lessor is not entitled to a forfeiture of the exclusive right of his lessee under the lease, for the reason that while he may lose some of his own oil or gas through wells on adjoining lands, he acquires his neghbor’s oil or gas through the wells on his own land, and is thereby compensated.</p>

<p>Confessed judgment by a corporation which afterwards makes an assignment.</p> <p>1. A judgment taken on a cognovit note given by a corporation for a pre-existing debt several months before it made an assignment for the benefit of its creditors, but on which judgment was taken, execution issued, and levy made only a few hours before the deed of assignment of the corporation was fifed, is valid'and the levy thereunder gives a good lien on the property of the corporation levied upon.</p> <p>2. In such case a probate court has no authority by its order to sanction an agreement between the judgment creditor and the assignee of the corporation to the effect that the sheriff should surrender the property levied upon to the assignee, the court ordering that upon such surrender the lien of the judgment creditor should be preserved, and the proceeds of the sale of such property applied to the payment of such judgment, thus fixing the priority of liens in advance, and depriving the general creditors of their day in court.</p> <p>8. At a meeting of the board of directors, at which it was concluded to make the assignment, a resolution was passed authorizing the president to confess judgments on the cognovit note in question in this case, which was past due, and for the payment of which demand had been made, and refused. The secretary of the corporation, who was the husband of the holder of the note, thereupon, without direction from the directors, advised his wife to take the judgment. There was no arrangement when the note was given that the holder should be advised by the corporation to take judgment to protect herself. Such resolution by the directors, and notice by the secretary to his wife, does not affect her rights under her judgment on the note</p>

<p>School regulation requiring the reading of the Bible as an opening exercise in school. — The legislature having placed the management of the public schools uhder the exclusive control of directors, trustees, and the boards of education, the courts have no rightful authority to interfere by directing what instruction shall be given, or what books shall be read therein. The courts have therefore no power to interfere against a regulation duly adopted by a board of education, requiring that a portion of the Bible be read in the schools of their district as an opening exercise. And such regulation is not in violation of any provision of the constitution of Ohio, or of the United States.</p>

<p>On general demurrer to petition.</p>

<p>1. Certain assignors under three separate deeds made assignments of different pieces of property to the same assignee. The assignee gave bond only under the first trust. Subsequently by consent of the assignors the three trusts were united, and upon a final accounting in the probate court, it was found that the assignee was indebted in a certain sum to the assignors under the three trusts, but by reason of the union- of said trusts it was impossible to determine to what extent, if any, there was any deficiency under the first trust.</p> <p>Meld: There can be no recovery against the sureties of the first trust.</p>

<p>1. Under section 4073, Revised Statutes, the action of the Board of County School Examiners in revoking the certificate of a teacher for intemperance and immorality is final, and cannot be reviewed on error to the court of common pleas.</p> <p>2. There being no provision of the statute whereby the action of the Board of County School Examiners can be reviewed on error to the court of common pleas, the examiners cannot be compelled, by mandamus, to sign a bill of exceptions setting forth all the evidence and rulings of said examiners on the trial to revoke a teacher’s certificate.</p>

<p>On motion for a new trial.</p>

<p>1. Resolutions adopted by the directors and ratified by the stockholders of a railway company authorized the issuance of bonds for a loan of $14(500,000, and the execution of a mortgage on all of the company’s property to secure it, and declared that §8,000,000 of the bonds “ should be sold and disposed of by the president and executive committee, and the proceeds thereof shall be applied for the purpose of double tracking, equipping and increasing the transportation facilities of, and improving the company’s railway, and in purchasing such real estate and other property as in the judgment of the board of directors, or the president and executive committee, the interests of such company require.”</p> <p>In the mortgage executed in obedience to these resolutions to the Central Trust Company by the railway company, the resolutions were recited in full, and a mutual agreement and covenant was made therein for the benefit of all persons who might thereafter become owners and holders of the bonds, by which it was agreed and covenanted that 8,000 bonds and their proceeds should be applied to the uses specified in the resolutions. The combined legal eflect of the resolutions and covenant and agreement, in the mortgage, was to impress an express trust upon those bonds and their proceeds in favor of the bondholders, their trust interest being in the application of the bonds or their proceeds to the expressed uses.</p> <p>2. The directors and executive committeemen are charged with having appropriated and converted the bonds and their proceeds' to their own use. That, if true, was a pollution of the trust.</p> <p>3. Although there was no technical privity or trust relation between the directors and committeemen on the one side, and the Trust Company, or the bondholders, on the other; yet, as the directors and committeemen owned practically all of the stock of the company when the resolutions were passed, the mortgage executed, and the trust abused, those acts were, in equity, the acts of the directors and committeemen, thereby constituting them trustees of the express trust. A petition praying for a pecuniary recovery of the trust money and interest from them as trustees is invulnerable to a general demurrer.</p> <p>4. An express trust is, until it is openly disavowed or repudiated by the trustees, and the disavowal or repudiation is brought home to the cestui que trustent, a continuing and subsisting trust, and an action for its desecration is not barred by the statute of limitations.</p> <p>5. If the directors and committeemen were only constructive trustees, is the action barred by that statute ?</p> <p>6. The relations of creditor and debtor and cestui que trust and trustee may, if agreed to, eo-exist in the same transaction, between the same parties, there being no “inherent incompatibility” between them.</p>

<p>1. Tlie power of a judge to discharge an alleged fugitive under the act of 1875 (72 O. L. 79) is essentially the same, as under the habeas corpus act (75 O. L. 754). Wilcox v. Nolze, 34 Ohio St. 520.</p> <p>2. The indictment or affidavit charging the person demanded in extradition with crime, under sec. 5278 of the act of congress, and sec. 2, art. 4 of the constitution of the United States, must be certified as authentic by the governor making the requisition; and if it appear, in the hearing in habeas corpus, or in like proceedings under the statute of Ohio upon the return of the sheriff producing the prisoner before a judge to be ex- ' amined as to the truth of the charge of being a fugitive from justice, by an inspection of all the original documents submitted to the governor issuing the warrant or their agreed duplicates that such indictment or affidavit is not thus certified, then the prisoner is entitled to be discharged and should not be remanded on said warrant.</p> <p>3. Neither the agent of the demanding state, nor the officer arresting the fugitive under the warrant of the governor are officers of the United States. * * And the states have the right to impose the duty on their own courts or the judges thereof to inquire into the grounds upon which any person within their jurisdictional limits is restrained of his liberty, and to discharge him if the restraint is illegal, arid this, notwithstanding such illegality, may arise from the violation of the laws and constitution of the United States. Robb v. Connolly, 111 U. S. 624. As every alleged fugitive under arrest on his application would be entitled to a hearing before a judge or court in habeas corpus, and as sec. 97 of the Eevised Statutes of Ohio is but a provision that before a governor shall remand a prisoner to another state, he shall cause him to be brought before a judge for a hearing like unto that in habeas corpus, such statutory-direction does not conflict with the foregoing act of congress or said constitutional provision. Wilcox v. Nolze, 34 Ohio St. 520.</p> <p>4. Whether a prisoner in extradition be a fugitive from justice is a question of fact for the determination of the governor, and the judge in the habeas corpus proceedings.*</p> <p>5. When the proceedings in extradition are in due form of law, good faith is to be imputed to them, but that presumption may be overcome by proofs to the contrary. When the proof establishes that the forms of law have been used for illegal and ulterior purposes, that such proceedings have been instituted not to prosecute the prisoner, for his crime, according to the law, but to deliver him at a convenient place to kill him, in the exercise of individual vengeance, then the proceeding violates the constitutional purpose, and the judge is not required to aid in thus remanding him, but is in duty bound to protect the prisoner from unlawful restraint and death.</p>

<p>Assessment— Where a eiiy improves a street, part of which is dedicated, and part not dedicated.</p> <p>In an action brought by the contractor upon an assessment assessed on the abutting property to pay therefor, against an owner of lots other than the owner of the undedicated portion of the street, it is not a defense to the assessment where said undedicated portion is dedicated for street purposes and an amended assessment made prior to trial had.</p>

<p> Practice. </p> <p>Bequests for findings must be made at, or immediately after, the trial. (Revised Statutes, sec. 5205.)</p> <p>A request made eight (8) days alter trial, but before journal entry filed, that the court state in writing its conclusions of facts separately from its conclusions of law, came too late.</p>

<p>Heard on motion to strike irrelevant matter from anwser.</p>

<p>The act of the General Assembly of Ohio, of May 19, 1894, requiring all persons in Ohio, dealing in convict-made goods made in prisons of other states, to procure a license from the Secretary of State for such business, is an interference with interstate commerce, and therefore is in violation of section 8, clause 3, of article 1, of the constitution of the United States.</p>

<p>1. Where testimony as to a conversation between plaintiff and defendant is introduced by the plaintiff for the purpose of proving an admission by the defendant, the latter party is not for that reason entitled to introduce evidence of his own subsequent declarations, unless such declarations are part of the same conversation.</p> <p>2. The law of res gestee is not applicable to such a case. Such law permits only those declarations which illustrate and characterize an act. A statement is not an act within the meaning of the law of res gestee.</p>

<p> Causes in Special Term of the Superior Court to which the act restoring the General Term Jurisdiction is inapplicable. </p> <p>1. Tie act abolishing the General Term of the Superior Court of Cincinnati and constituting the Circuit Court of Hamilton County a court for the review of the final orders and judgments of the Superior Court, applied to cases pending in the Superior Court in which no final order had been made or judgment rendered at the time of the passage of the act.</p> <p>2. The meaning of a “pending action” as used in section 79, of the Revised Statutes, defined.</p>

<p>On error to Special Term.</p>

<p>The new Mechanic’s Lien Law. — The act of the General Assembly of April 13,1894, (91 Ohio Laws, 135), amending the mechanic’s lien law of Ohio is constitutional.</p>

<p>Conversion — When title to the property obtained is good in a third party.</p> <p>An action for conversion will not lie against a third party who has parted with value for goods upon the apparent title of the wrong doer and his right to dispose of the property, and when the title was acquired without notice of the defects or knowledge of circumstances to put such third party on inquiry.</p>

<p>Injury by falling on sideivalk covered with icc and snoio — Slope in sidewalk — Liability of city — Allegation of “ dangerous defects ” in petition mere conclusion.</p>

<p>When a fence built by a lessee is not a fixture.</p> <p>A leased to B some unoccupied sidehill for a stock yard, which B enclosed by a light temporary fence, which, by the terms of the lease, was to be taken down and removed when it had served its purpose. Subsequently, a second lease of the same land was made by the same parties, which did not mention the right of the lessee to remove the fence.</p> <p>Held: That although the posts were imbedded in the earth, that did not constitute that permanent relation to the soil which would make the fence a fixture placed there, for permanent use. The purposes for which the' annexation is made are to be considered.</p>

<p>A doweress does not forfeit her right on account of non-payment of taxes under section 2852, Revised Statutes, until there has been a sale of the land, and one year thereafter has expired. It is immaterial whether the sale is valid or not.</p>

<p>Charles H. Flach and R. B. Hopple were partners under the firm name of Hopple, Flach & Company. Subsequently they entered into an agreement by which the partnership was dissolved and the business passed into the possession and ownership of Flach, who assumed the paymeut of all the debts of the firm.</p> <p>At the time this agreement was entered into, both parties supposed that Flach had succeeded in making arrangement with certain banks the largest creditors of the old firm, to take the paper of Charles H. Flach in place of that of Hopple, Flach & Company. After the agreement between Flach and Hopple had been signed, the banks refused to take the paper of Charles H. Flach in place of Hopple, Flach & Company, the banks denying that any such arrangement had been made. Thereupon said Flach and Hopple, who was sick and entirely incapable, acting through his attorney pre- . viously employed, agreed that said agreement should be considered of no effect.</p> <p>Subsequently to this agreement of rescission, Charles H. Flach made an assignment for the benefit of his creditors.</p> <p>Prior to the making of said assignment, Flach transferred certain accounts of Hopple, Flach & Company, to his individual creditors in payment of their debts, and transferred other accounts to certain creditors of Hopple, Flach & Company in payment of the debts of said firm. Neither the individual or the firm creditors had any notice of the agreement of rescission.</p> <p>Held: (1). That the transfers in payment of the individual creditors should be set aside.</p> <p>(2) . That the transfers in payment of the firm creditors were valid.</p> <p>(3) . That the assignment of an account is not required to be in writing. Mere delivery of the bills is sufficient.</p> <p>(4) . That the right of the creditors and of Hopple, a partner, to have said individul transfers set aside, need not be asserted in the probate court.</p>

<p>1. An affidavit charging the defendant with selling New Orleans molasses having mixed therewith glucose, whereby the quality, strength and purity thereof was lowered and depreciated, is fatally defective in the absence of any averment that the article was sold for, and to be used as, human food.</p> <p>2. On the trial of such case, it is competent for the defendant to show that he bought the molasses for pure New Orleans molasses, and honestly believed it to be such, and in that belief sold it, without intent to deceive the purchaser thereof as to its true character, and a refusal of the court to so charge the jury in a case, when requested so to do, when such defense is made in the evidence, is error.</p>

<p>Adulterated wine — Prosecution—Affidavit must allege that wine was sold as a beverage.</p>

<p>1. Sufficiency of affidavit charging unlawful sale of wine. — An affidavit charging an “unlawful sale of a certain quantity of wine in package containing about twenty-six gallons, as and for blackberry wine, a certain compound and mixture consisting of wine, sugar water, alcohol, salicylic acid and aniline red,” defines a violation of the first section of the act as amended March 26, 1891, 88 Ohio Laws, 231, and does not come within the exceptions of the sixth section of the act, Revised Statutes, 7456 — 26.</p> <p>2. lo reverse judgment record must show prejudicial error. — Though error intervenes in the trial, yet to justify a reversal of the judgment, the record must affirmatively show that it was to the prejudice of the plaintiff in error.</p> <p>3. Jurisdiction as affected by delivery of prohibited article to common carrier out of stale. — The fact that S., the dealer, whose place of business is Pittsburgh, Pa., where he delivered the prohibited article to a common carrier of his own selection, to be delivered to H., the purchaser, at Akron, of whom the accused, as the agent of S., had solicited the sale at Akron, and procured his order for the prohibited article, which order the accused transmitted by mail from Akron to S., at Pittsburgh, and pursuant to which the article was so shipped to H. and delivered by the common carrier to H. at Akron, and the accused afterwards collected the purchase price therefor at Akron, constitute such violation of the statute at Akron, that accused may be prosecuted criminally in the county in which Akron is situated.</p> <p>4. Neglect to charge the jury where no request is made. — It was not reversible error for the justice of the peace, trying the case, to neglect to charge the jury, the accused not making any request to give any matter in charge to the jury.</p> <p>5. When evidence of want of knowledge may he excluded. — It is no reversible error for the trial court to exclude evidence of the accused on his trial, he being a witness, that he had no knowledge that the liquors sent to H. were any other than pure liquors of the kinds described in his order mailed to his principal, and that he had no knowledge that S. had any adulterated liquors of the kinds mentioned in his order, when his examination as a witness showed what knowledge he had, and his means of knowledge and that to be ignorant under the circumstances was not the ignorance in good faith, hut of criminal negligence; and when taking all the evidence into consideration, there could be no reasonable doubt of his guilty knowledge, and the record, taken as a whole, showing clearly that he had a fair trial.</p>

<p>On Motion to quash service.</p>

<p>1. Adulterated food — Prosecution for refusal to supply sample for analysis to interested person. — Iu a prosecution for failure to supply sample of article of food for analysis at the request of a person interested in such prosecution, tendering the regular price for the same, the affidavit which fails to state the name of the person who demanded the sample for analysis, and also fails to name the article of which a sufficient sample for analysis was demanded, and fails to designate the act of the legislature averred to be violated, is fatally defective.</p> <p>2. It is error, on the trial in such a case, for the court to refuse to admit evidence on behalf of the defendant to show that he did not expose and did not offer for sale any of the articles as claimed on the part of the prosecution.</p>

<p>The plaintiff company, which is the manufacturer of an article named Paskola, intended to assist weak digestions, began an action against the Ohio Dairy and Food Commissioner and his assistants, alleging in its petition that said Paskola in no way violated the law of the state against the adulteration of foods and drugs; but that defendants, well knowing said fact, nevertheless had maliciously conspired, to drive the same out of the state¡ to the irreparable damage of plaintiff, (1) by prosecuting upon the charge of violating said food laws, those druggists and dealers who sold said article ; (2) by threatening to prosecute those who, in the future, should sell the same ; (3) by making false and libelous publications as to the nature and ingredients of said article. Demurrer to petition sustained. Held :</p> <p>1.'Equity has no jurisdiction upon the ground that complainant is innocent of a .charge or charges about to be preferred in the criminal courts by the officers of the state acting under a valid law to enjoin such officers from preferring such charges and prosecuting the same; and the fact that the prosecutions affect property rights, and that the damages occasioned by such prosecutions may be irreparable is immaterial.</p> <p>'2. Equity has no jurisdiction to restrain a publication upon the ground that it will be a libel upon the business of complainant.</p> <p>.3. The principle declared in the class of cases in which equity has restrained the publication of a libel to prevent customers of a firm from being driven off by intimidation and threats, can not be applied to a case of this character where the threats relate to the prosecution, by officers of the state, under the food and drug laws, of persons selling a product which may vary, from time to time, in its ingredients.</p>

<p> Rees of Gounly Officers. </p> <p>1. Payment to Auditor for making annual report for commissioners illegal.</p> <p>2. Surveyor in stone road and ditch matters to he paid per diem, and not by line or word.</p>

The action was brought by the plaintiff to recover of the defendant, the Bank, the sum of $110.00, with interest from the 6th of July, 1886, which he claims he had on general deposit in the bank, and which the •bank refused to pay on demand.

<p>Leases of premises to be used for the sale of intoxicating liquors, and leases of premises-which are permitted by the lessor to be so used, are void, under section 4364, Revised Statutes, whether the sale of such liquors on the premises be lawful or unlawful.</p>

<p>1. Section 4017, as enacted March 31, 1892, repealed section 4017, as amended March 15, 1892, by implication, and became section 4017 of the Revised Statutes.</p> <p>2. The provisions of said section, that at an appointment of a teacher the clerk of the board of education shall call, publicly, the roll of all the members comprising the board, and as each member’s name is called he shall verbally announce the name of the candidate who is his choice, and the clerk shall enter on the records required to be kept the names of those voting and for whom they voted, are mandatory, and must be complied with in order that a legal appointment may be made.</p>

<p>Decision on demurrer.</p>

<p>' 1. The plea of the statute of limitations is not available, in this case, against the claim of the state.</p> <p>2. The claim of the state to the land in dispute can not, legally, be defeated by equitable estoppel.</p> <p>3. If estoppel is a sufficient defense against the claim of the state, the essential elements of such an estoppel are not disclosed in the answer.</p> <p>4. Public agents are not vested with apparent authority.</p> <p>5. Neither the Board of Public Works nor the Canal Commissioners were authorized to sell and convey the land in dispute; nor could they by their conduct, either express oral assent or silence, consent to the Northern Indiana Railway Company laying its tracks and erecting its buildings, etc., on said land, so as to estop the state from claiming the land, because such consent was not within the apparent authority of such officers as agents of the state, assuming that they had such authority.</p> <p>6. If the state failed to take possession of the land and use it for a hydraulic site, to which use it was restricted by the deed conveying it to the state, the defendant, as the successor to the rights of the Northern Indiana Railroad Company, can not insist on a forfeiture of the land, that being a right personal to the grantor of the state, if it existed in anybody.</p> <p>7. The statute which authorized the attorney-general to institute this action in Franklin county is not unconstitutional.</p>

<p>Rights of riparian owners on navigable streams— In Ohio, owners of land situate on the banks-of navigable streams, are also owners of the beds of the river to the middle of the stream, subject only to the easement of the public to use the river for navigable purposes.</p> <p>The building and repairing of ships is not navigation.</p>

<p>1. A contract for tbe sale of 7,000 tons of steel rails to be delivered as follows : “ 550 tons during tbe month of April, and the remainder in quantities of 1,000 tons per month thereafter until contract is completed, and to he paid for in cash on presentation of sight drafts with bills of lading covering shipments of each 500 tons,” is an entire contract; and a lien perfected in pursuance of the statute within forty days from the delivery of the last shipment, constitutes a valid lien for the whole of the materials so furnished under such contract.</p> <p>2. And an agreement between the parties to extend the time of payment on the first shipment for thirty days upon condition that additional security should be given, did not have the effect to waive the lien, nor to make the contract severable.</p> <p>3. A person furnishing materials for the construction of a railroad in this state under a contract with said railroad company or with a contractor of said company, by the terms of which said materials are delivered outside of this state, is entitled to a lien against said railroad under the mechanics’ lien law of this state, for the materials so furnished.</p>

<p>In a contract for a limited partnership, it was agreed among other things that the special partners, as their share of the profits; should receive interest at a specified rate per annum on the sums of money contributed.by them as capital, and that the general partners should become responsible to them for the capital so contributed, and interest.</p> <p>Held, that in the absence of fraud or bad faith the contract does not constitute a loan of money to the partnership, and that the sums so contributed are not subject to taxation as “credits” of the special partners.</p>

<p>Assessable frontage — Question of res adjudícala.</p>

<p>1. M. gives by his will a legacy of ¡¡¡BO,000.00 to his son in trust for testator’s wife, income payable to her for life, with power of appointment by will in her as to the principal; if not so disposed of, says, “it shall be equally divided among my children, or their legal representatives,’’ and uses no other words in the context of the will to explain his meaning.</p> <p>Held, that as a life estate precedes the legacy to the children, the words “legal representatives’’ (although following the disjunctive “or”), are used in their primary sense of “executors or administrators,’’ as words of limitation, and not in their secondary sense of “next of kin,” as words of substitution, and therefore such legacy given to any child who died without issue in the lifetime of the testator, lapsed ; that the intent of the testator in the use of these words in his will is not affected by the happening that his wife died thereafter, in his lifetime.</p> <p>2. M.,gives the residue of his estate, real and personal, to his son in trust to hold, as he says, “for the equal benefit of my four children and. their legal representatives,” and uses no other words in the context of his will to explain his meaning.</p> <p>Held, 'that the words “legal representatives” preceded by the conjunctive “and,” are used in their primary sense of “executors or administrators,” as words of limitation, and not in the secondary sense of “next of kin,” as words of substitution, and therefore such legacy or devise given to any child who died w’ithout issue in the life-time of the testator, lapsed.</p> <p>S. Section 5971, Revised Statutes of Ohio, recognizing such rule of construction, provided that as to the issue of any child or other relative no devise (or legacy) should lapse by the death of the legatee during the life of the testator; but the husband is not the issue of his deceased wife, (although he be next of kin, by the statute of descent and distribution.)</p>

<p>Ditch appeal. — In a county ditch appeal, in the trial of the statutory questions submitted to a jury, the defendant has the right to open and close.</p>

<p>Sale of goods to insolvent purchaser — What will render sale void,. — Where the purchaser of goods was at the time in fact insolvent, hut there is no fraudulent misrepresentation, nor of any intent to defraud, or to support the claim that such purchaser had no reasonable expectation of paying for the goods, the mere fact”that the.purchaser knew at the time of the purchase that his debts exceeded his assets, will not vitiate the contract.</p> <p>In Ohio, in sales to an insolvent purchaser, it is only where the knowledge of his insolvency by such purchaser is connected with the concealment of the fact or an absence of a reasonable expectation to pay, that fraud is shown, and the sale rendered void.</p>

<p>In error to the Police Court of Cincinnati.</p>

<p>A creditor of an insolvent corporation is not barred of the right to maintain an action under section 3260, Revised Statutes, to enforce against the stockholder's of such corporation their unexhausted statutory liability for the payment of the corporate debts, by a final decree entered in a former action of the same nature, brought by a creditor of such corporation, on behalf of all its creditors, and against the same parties who are defendants to the subsequent action, unless such creditor was an actual party to such former adjudication, or had notice thereof and an opportunity to become a party thereto, and refused or neglected to avail himself thereof.</p>

<p>1. The property rights of married women in Ohio are fixed by the aot of the legislature of March 19, 1887, aDd the mode of enforcing these rights is prescribed by “Part Three” of the Revised Statues of Ohio', sections 4947 to 6793, inclusive.</p> <p>2. Undei-the provisions of “Part Three” of the Revised Statutes of Ohio, a married woman may maintain an action in her own name for the recovery of a money judgment against her husband, notwithstanding the marital relation.</p>

<p>The City of Cincinnati, by ordinance of its board of legislation, established in Plum street, from Seventh street to McFarland street, a general market, and, for a stipulated annual payment to it, licensed hucksters and others to use designated spaces or stands at the curb for the exposition ©f their commodities for sale.</p> <p>The licensees make it their custom to occupy their spaces the evening before market days, with their market wagons, in which they sleep. The spaces are so occupied for three nights each week, and, with such use, and the time precribed for holding the markets, are in almost exclusive use for market purposes not less than sixty hours in each week.</p> <p>The wagons extend in almost unbroken lines, .excepting where there are intersecting streets, for several city blocks, and, with their projecting poles and shafts, occupy a considerable portion of the street.</p> <p>Frequenters of the market, in wagons, stop in the street, and further reduce the space avail» able for general vehicular traffic, which, for these reasons, seeks other streets parallel with Plum street, thereby affecting its importance as a street, and lessening the value of property abutting upon it.</p> <p>Much noise arises during the nights preceding market days from the backing up of wagons, the unhitching of horses, the hallooing of men to their horses, and to each other, and, at times, noisome smells are generated in the refuse and litter of the markets. Plaintiff is the owner of a house abutting on that part of the street whereon the market is established. Held:</p> <p>1. That the plaintiff has a right to the use of the street for access to his house, and egress from it, and for such purposes as are incidental to the use of a house abutting on a street.</p> <p>2. That the establishing of the market deprived him of that right, and he thereby suffered an injury different in kind from the public generally.</p> <p>3. That neither the legislature, nor the city had the power to deprive him of that right, without compensation.</p> <p>4. That the facts constitute both a public and and a private nuisance, which he is entitled to have abated.</p> <p>5. That a court of equity will enjoin such use of the street, and will decree its discontinuance.</p>

<p>Where a municipal corporation has legally erected a public market-house in a public street, thereby appropriating a considerable portion of the width of the street, a court of equity, at the instance of the owners of property abutting on such street, will enjoin su'ch corporation from licensing hucksters and others to use the remaining portions of the width of the street, for market purposes, in such a way as to interfere for rpany hours each week with the ingress and egress to and from such property and the street.</p>

<p>1. Rules of evidence as substantive law. — Rules of evidence are part of the substantive law of the state.</p> <p>2. Power of legislature over rules of evidence. — All of the legislative power of the state, subject to the restrictions embodied in the constitution, being vested in the legislature, it may make, modify or repeal the rules of evidence as part of the substantive law.</p> <p>3. Same. — Making the proof of certain facts a presumption of other fads. — It is competent for the legislature to enact that a relevant fact or circumstance shall constitute a prima facie presumption of law or of fact, and to make that sufficient proof of the main fact to be proved, and to which it is relevant, in the absence of countervailing evidence, because that is only making a rule of evidence.</p> <p>4. “ Winn Law’’ not unconstitutional. — The statute known, in popular speech, as the Winn law (90 Ohio Laws, 300), is, therefore, not unconstitutional.</p>

<p>1. Findings of fact will not be disturbed in a court of error, unless manifestly against the weight of the evidence.</p> <p>2. Error to afford ground for reversal must be prejudicial to the party complaining.</p> <p>3. In a controversy as to the terms of a particular contract, it is not competent for the purpose of hearing what such terms are, to prove the terms of another contract made at some other time, between some of the parties to the contract in controversy.</p> <p>4. The plaintiff, a trustee in insolvency of an insolvent corporation, brought an action against the defendants for amounts overpaid to them by the president, under a contract between said president and defendants. The defendants admitted that they had a contract with the president, but denied that its terms were as alleged in the petition, and alleged that they were as set out in their answer. After the corporation had passed into the hands of the trustee in insolvency, one of the defendants wrote a letter to such trustee, stating the terms of the contract.</p> <p>Held, that such letter was not only admissible in evidence against the defendant who wrote it, but also against the other defendant.</p>

<p>On application of William Fogarty.</p>

<p>On motion of Nickolas Becker and Abbie Becker for new trial.</p>

<p>•Collision of trains on railroad crossing. — Personal Injury. — Law as to rights and liabilities in such cases.</p>

<p>Voluntary payment. — Money paid by a policeman into the city treasury by way of fines imposed upon him by the Police Board of the city of Toledo, by way of punishment for infractions of the rules of the police department, is paid voluntarily, and can not be recovered back, although no authority is conferred by statute on such police board to impose and collect such fines.</p> <p>The Police Board of Toledo has no authority under the statute to assess and enforce such fines.</p>

<p>1. Bids for street improvements before the Board of Administration of Cincinnati.</p> <p>2. The only mandatory duty which is upon the board is that of awarding the contract to to the lowest responsible bidder.</p> <p>S. No one is a bidder who has not complied with all the reasonable requirements as to the manner and mode of bidding.</p> <p>4. Whether the board might legally award a contract to an irregular bidder. Quccre:</p>

<p>1. In order that an appropriation may be made from the contingent fund under section 2690A to provide for a deficiency in any specific appropriation made under, this section for a fiscal half year, it is necessary that a deficiency shall lawfully and by an unforeseen emergency happen ; something unforeseen shall happen affecting the object for which the specific appropriation is made, and which, by requiring an unexpected expenditure of the money appropriated to that particular object, has caused, or will cause a deficiency in, the appropriation.</p> <p>2. The improvement of parks by the construction of roads, grading and otherwise, which. had been contemplated, but put off for the lack of funds, is not an unforeseen emergency under the section.</p> <p>3. The statutes of Ohio do not provide for, or contemplate, a fund to be used in giving employment to unemployed people, and it is clearly an evasion of the law to use, for such purposes, a fund specifically appropriated to the object .of parks, and to make an appropriation from the contingent fund to provide for a deficiency thereby occasioned in the park fund.</p> <p>4. Where the council does not declare by the ordinance making the appropriation from the contingent fund that an unforeseen emergency exists, a legislative right of council to determine whether such emergency does exist, can not be set up under the ordinance, even if the council has such, legislative right, and the question as to whether such emergency existed is to be determined by the court on the facts.</p>

<p> Classification of sewers wider the municipal code of Cincinnati. </p> <p>1. The municipal code divides sewers into two classes, viz.: (1) Main, principal or trunk sewers, and (1) local, lateral or branch sewers. Sub-main sewers belong to the first class.</p> <p>2. The only definition of a main or trunk sewer foufid in the code is that it shall have its outlet in a river or other proper place. Such other proper place may be another sewer.</p> <p>S. A local sewer is one “intended for and used exclusively for-the drainage and accommodation of lots abutting thereon.” If therefore v sewer receives the drainage of sewers in other streets, it is a main or trunk sewer and not a local sewer.</p> <p>4. The mere fact that a sewer, otherwise local, drains also the surface water from the street in front of the abutting lots, does not change its character as a local sewer.</p>

<p>A court will not enjoin a party from receiving mail addressed to a name under which he formerly did business, but which now belongs to another, if it appearjthat such mail are intended for him.</p> <p>In the following case 'it appearing that some of the letters were intended for the one party, and some for the other, but the larger part and the most important letters being intended for the former party, it was held that the letters should be received by such former party, but opened only in the presence of the latter party.</p>

<p> iStreet assessments where the rate oj the assessment is raised by reason of reduction of the frontage. </p>

<p>Corner lot assessment — Improved lot with gates opening upon side street.</p>

<p>The act of April 15, 1891 (88 Ohio L. 815), entitled an act “to authorize the Commissioners of Hamilton county to extend Gilbert avenue in the city of Cincinnati from its present terminus at Court street to Broadway, and to provide a fund therefor,” which authorizes powers of eminent domain only upon request of the board of administration of said city, and mandatorially directs said commissioners to borrow money, to iss'ue bonds to the amount of $500,000, and levy taxes on the taxable property of the county, and on their failure, for the county auditor to levy such taxes, sufficient to pay the interest and create a sinking fund to redeem said bonds, upon the request of the said hoard of administration, said money shall be paid into the couoty treasury, and drawn out upon the order of said latter hoard in the construction of said Gilbert avenue, extended by viaduct, bridge or fill, is a special act conferring corporate powers upon the city of Cincinnati through its board of administration, in violation of sec. 1, art. 13 of the constitution of Ohio, providing “ the general assembly shall pass no special act conferring corporate powers,” and is therefore unconstitutional and void.</p>

<p>The facts show that John Carlisle was not the agent of his sisters and niece in the construction of the so-called annex to the St. Nicholas hotel.</p> <p>But, assuming that he was their agent, it was held:</p> <p>Whore a tenant in common agrees with his co-tenants, to spend a certain sum of money which is placed in his hands for the purpose of improving the common property, and becomes their ag'ent for its expenditure, but expends a much larger sum than was agreed upon, his tenants in common are liable to mechanics with whom he has contracted for work on the improvement, where the mechanics have been misled into the belief that he had authority to spend whatever sum was necessary, by reason of his authority, apparently giving him the power to contract as he did.</p> <p>The subject of his agency being the construction of an addition to a first class hotel, to be used as a part of and in conneetion with such hotel, his apparent authority gave the mechanics the right to believe that he was authorized to erect a building suitable to the surroundings and adequate for its destined uses.</p> <p>But where an agent exceeds his real authority without the knowledge or consent of his iJi'incipals, and third persons with whom he deals seek to hold his principals for. the representations which his apparent authority permits him to make, and a loss has occurred which either the principals or such third persons must bear, the latter must show that they, on their part, made all the inquiries and took all of the precautions to prevent loss which reasonably prudent business men would have taken under the circumstances.</p> <p>Where the circumstances of their dealings with the agent show that he was acting as the trustee of a trust of a nature which must necessarily be contained in some written instrument, or be a matter of public record, it is the duty of such third persons to ascertain the actual authority conferred on the agent by the terms of the trust. Having failed to do so, and having made no inquiry into the powers of the agent, they are not entitled to the shield of innocence which would otherwise have been their protection.</p>

<p>(On the 22nd day of July, 1875, the City of Cleveland, by ordinance, granted to the Broadway & Newburg St. R. R. Co., a corporation, the privilege of constructing and maintaining a street railway in the street of Broadway in said city. Among other conditions were this, that the company should pave, or pay for the paving of, the space between its rails making for a double track 10 feet. Subsequently, and while the grant was still in force, the city, by ordinance passed December 22nd, 1892, undertook, and did require the street railroad company to pave 16 feet of the street instead of 10 feet.</p> <p>Held, that -under section 2 of Article 1, of the Constitution of. Ohio, as well as the act of the legislature passed April 21st, 1890, and the ordinances of the city passed prior to December 22nd, 1890, the ordinance of December 22nd, 1890, and the ordinance of June 13th, 1892, and the act of the legislature of April 21st, 1890, were all valid and constitutional, and the right of the city to require the company to pave 16 feet instead of 10 feet did exist, and it was but a reasonable exercise of the reserved power under the constitution of the state and the ordinances of the city.</p>

<p>1. The statute called the “Winn law, ” is not unconstitutional even against the owners of a house of ill-fame</p> <p>2. A petition which does not aver that the owner knew the house was one of lll- • fame, and that intoxicating liquors were being sold in it, is not obnoxious to a demurrer.</p> <p>3. But if the owner proves that he did not know the house was used for purposes of prostitution, it is a good defense.</p>

<p>1. Where the terms fo the annexation of a village to the city stipulated that all 1 ‘grades of streets heretofore established within and by the proper authorities of said village shall be respected, but the same shall be altered with the consent of the property owners, or on a payment of damages that may be agreed upon or ascertained by law, ’ ’ held, the only effect of -such annexation agree - ment (and ordinance therefor under the law governing such proceedings) was to put the street grades established by such village authority before the annexation upon the same legal basis as street grades established by city authority, and subject to change in like manner, so that the abutting lot-owners have the same right ás, and no more than if such village territory had been within the. original city limits, and its street grade had been established by the city authorities.</p> <p>2. Neither the village or city authorities, before annexation, were empowered to agree with the lot-owners of any street not to change the grade of any street, nor to absolve their property from liability of assessment for street improve-' ments in the future, nor have they any greater power in this respect conjointly during or after annexation.</p> <p>3. The damages to the improvements on the abutting lots, and the additional costs of street construction caused by change of grade, may be assessed by the foot front upon such lots in common with other lots on this street.</p> <p>4. That such assessment is not in violation of sec. 19 Bill of Rights of Ohio Constitution, or the Fourteenth amendment to the Constitution of the U. S.</p>

<p>A transfer of property without consideration will not be set aside at the suit of a subsequent creditor, as in fraud of creditors, on suspicious circumstances only. ' The burden is on such creditor to show that the transfer was made with intent, on the part of the grantor, thereby, to ^defraud subsequent creditors.</p>