Volume 2 — Ohio Nisi Prius Reports

<p>The facts are sufficiently stated in the opinion of the court. The question made by the defendant’s motion is whether the power of the Governor of Ohio, in the matter of granting and issuing requisition for fugitives from justice, is limited by section 95 of the Bevised Statutes of Ohio, to cases of felony ? Held: 1st. That the power of the governor in such matter is not so limited by that section. 2nd. That under the constitution of Ohio and the constitution of the United States, and the laws passed by congress in pursuance of the latter, the Governor of Ohio has the authority, and it is his duty to grant and issue such requisition in cases of misdemeancyr, as well as in eases of felony, committed against the law of Ohio.</p>

<p>Hearing on application for attachment to is ue against defendants.</p>

<p>The act of March 5, 1879, now sections 3643 and 3644, Revised Statutes, construed.</p> <p>1. The insurer is required, by the provisions oí section 3643, to ascertain’the amount of the insurable interest of the applicant in each application, and to ascertain and fix the insurable value thereof.</p> <p>2. When the insured incumbers a building or structure, which is insured, during the life of the policy, by mortgage, without the consent of the insurer, such incumbrance will not constitute a defense to the policy, unless it is set up as a defense, and it is averred in the answer, and proven upon the trial, that the risk was increased thereby.</p> <p>3. Whether a risk is increased thereby, is, in every case, a question oí fact, to be determined by a jury.</p>

<p>Court of Common Pleas retains jurisdiction in probate matters, except so far as it is rendered dormant or superseded by the act of 1853. . The qct does not abolish that equitable jurisdiction of the Court of Common Pleas in probate matters by express terms, but that jurisdiction remains in the Court of Common Pleas as auxiliary to the jurisdiction conferred upon Probate Courts by said act, to be exercised only in exceptional cases where the probate j urisdiction is inadequate.</p> <p>Fraud by one standing in a fiduciary and confidential relation to the person affected will avoid the settlement of any account of a trustee, executor or administrator induced thereby; and such final settlement may be attacked in a court of equity in an independent action upon a complaint that the final settlement was obtained by fraud, constructive or in fact; and the Common Pleas has jurisdiction in such, action.</p> <p>In such case the petition must state with distinctness all the facts and circumstances relied on as constructive fraud which it is claimed induced the making and approval by the Probate Court of the final settlement.</p>

<p>1. By baggage is meant such articles of personal necessity or convenience as are usually carried by passengers for their personal use; it does not include merchandise or other valuables designed for other purposes such as a sale or the like.</p> <p>2. Equity will not interfere by injunction to require a railroad company to permit its passenger cars to be used for the transportation of merchandise as personal baggage, especially whén such railroad company has provided for transportation of merchandise through its freight cars or through an express company, and does not hold itself out as such common carrier.</p>

<p>Where a street is widened, and an assessment is levied per front foot on the abutting and adjacent property to pay the cost of the condemnation and the property taken, the assessment must be upon the property on both sides of the street as widened.</p> <p>An omission to assess the portion of the street opposite the part widened is an irregularity even though the city assumes payment .of one-half the costs and expenses thereof, and though the property owners dedicate one-half the-.width of the original street. To render such assessment valid, the property owners upon the opposite side of the street must dedicate one-half of the street as widened.</p>

<p>In an action for an injunction to restrain the collection of an assessment for a street improvement, the petition must allege not only the irregularity of the assessment, but that the plaintiff was prejudiced.</p> <p>Such defect in the petition can not afterwards be supplied by averments in the reply-</p>

<p>That part of Section 3140, Revised Statutes, which declares that on the decease of the person adopting a child and the subsequent decease of such adopted child without issue, the property of such adopting parent shall descend to his or her next of kin, and not to the next of kin of such adopted child, is intended to declare the course the property shall take in case the adopted child dies intestate and owning the property at the time of his or her death, and has no application to such property as the adopted child, prior to his or her death, may have conveyed away.</p> <p>As the facts in the following case do not present the question as to the rights of the husband or wife of the adopting parent or the adopted child in property descending to the adopted child, no opinion is expressed upon such question.</p>

<p>In construing a will the words “legal representatives” will be held to be words of limitation, unless the will shows the intention of the testator to give them some other meaning. The fact that the gift is immediate, is sufficient evidence of the testator’s intention to use the term in a different sense; but if the gift is to take' effect after a life estate, then the will does not afford evidence of the testator’s intention to use the term otherwise than as words of limitation.</p>

The contractor, Frank Gates, commenced five separate actions in the name of the city of Toledo for his use against the above named defendants, respectively, to recover upon ait assessment for constructing a local sewer in Fifth street, from Starr avenue to Cherry street, in the city of Toledo. All of the suits were, by consent of counsel, tried together upon an agreement of facts and other evidence.

<p> Sewer Assessment. </p> <p>In an action brought by the contractor upon a local sewer assessment, it is not a defense thereto that the surface of defendants’ lot (on which there is a pond of water,) is six feet below the sewer.</p>

<p>Ditch law--Compensation from upper to lower county for benefit of drainage afforded by ditch in upper county--Act of March 14, 1893 construed — Authority o'f Probate Court on exceptions to the report of the appraisers appointed, to hear testimony as to proper amount of compensation — The word “modify” construed — The amount of compensation awarded by the appraisers appointed to fix the compensation to be paid by the upper to the lower county under the act of March 14, 1893, is not equivalent to a verdict by a jury, and on exceptions to their finding, the Probate Court may hear testimony to ascertain what would be the proper amount of such compensation, and has authority to change such award.</p>

<p>1. When Inlying Lands Surrounded by Wasteweirs do not Vest in the State — Waste-weirs constructed by the state, for carrying off surplus waters from the Ohio canal to a natural stream, and mingling therewith, until said surplus waters are again introduced into the canal below, -do not, ipso facto, constitute such appropriation of the inlying lands bounded by the canal and such wasteweir and natural streams, as to vest in the state a fee therein, unless said inlying lands were necessary for the construction and maintenance of the canal, and were actually taken and occupied by the state for that purpose. .</p> <p>2. Title Acquired by the State — But the state did thereby acquire such title to so much land as was reasonably necessary to carry said surplus waters to said natural stream that it actually tools for such purpose, and the right in perpetuity to transmit the same in said natural stream.</p> <p>3. Presumption of Appropriation — -The mere fact that such wasteweir, natural stream, and the canal, surround such tract of land, does not create a presumption that the state apporpriated such inlying land for the puprose of its canal; to create such presumption, there must have been an actual and obvious appropriation of such inlying lands by the state for such purpose.</p>

<p>Indictment for shooting ivith intent to Mil, and also shooting with intent to wound — Definition of offense — Malice defined — Conspiracy'—Aiding and abetting defined — Reasonable doubt defined — Testimony of accomplice, weight of.</p>

<p>Where foreign executors are sued jointly with resident citizens, and service is obtained on them in the county, the question of the jurisdiction over their persons by the court may be raised by motion, and such motion does not constitute an entry of their appearance.</p> <p>The Ohio statute authorizing suits against foreign executors is constitutional.</p> <p>Where tho court has jurisdiction over the subject-matter of the action, and service of process has been regularly obtained upon the foreign executor within the county, it is competent for the court to try the case, and its judgment will be valid and binding in the state of Ohio.</p> <p>Ohio courts in the trial'of causes are not called upon to inquire as to the effect of their judgments elsewhere, or as to the faith and credit that will be given them by the courts of other states.</p> <p>A statute will not be held unconstitutional merely because it seems to be opposed to the spirit of the constitution or to violate the principles of republican government.</p>

<p>1. The acceptance of a promissory note of the debtor' by the creditor for a precedent simple contract debt, upon an express agreement to receive tne same in full satisfaction and as an absolute payment, will extinguish the pre-existing debt.</p> <p>2. The question of such agreement is one of fact to be determined by the jury, and the burden of*proof rests upon the party asserting the agreement.</p>

<p>Upon a letter from Cincinnati, addressed to one Walker, in Lawreneebury, Kentucky, directing him to pay taxes on certain whiskey and draw on defendant for the amount so paid, an action may be maintained for breach of promise to accept by a third person who purchased said draft without actual knowledge of the existence of any authority to draw this particular draft. Transactions of a similaT character had often occurred between the same parties, and drafts'drawn under like circumstances had always been honored by defendant.</p> <p>A bill of exchange ordered from Ohio, to be drawn in Kentucky, and endorsed and the money upon it to be obtained there, though to be accepted in Ohio, is governed by the law of Kentucky, and not of Ohio.</p>

<p>Section 3206a, R. St., would soem to have two purposes: One to give a lien to laborers and employes of any person, etc., upon real property, which will be waived unless an itemized statement be filed ; the other to provide that claims due for labor shall be first paid out of the funds of the employer placed in the hands of an assignee.</p> <p>Where an execution has been issued on a judgment against the employer, and a levy made on his goods, such goods, in the possession of the officer at the time of an assignment by the judgment debtor, are not placed in the hands of the assignee by the assignment, and the lien of the judgment creditor will remain a lien prior to the right of an employe under this section, even though the goods be sold by tne assignee under a subsequent agreement between the parties, by which the goods are placed in the hands of the assignee to be sold, with a stipulation that the lien of the judgment creditor shall remain a first lien.</p>

<p>A firm took a loan from a life insurance company and gave as security a mortgage-on their store-building, the two partners at the same time insuring their lives, each for the sum of §>10,000, for the benefit of the other, and assigned the policy to the insurance company for collateral security for the loan. On the death of one of the partners the insurance company paid the amount of the policy on his life to the surviving- partner, for whose benefit the same was taken out. Thereupon the executrix under the will of the deceased partner brought suit for the benefit of the estate of the deceased partner against the surviving co-partner to recover the amount of the policy so paid to him.</p> <p>Held, it appearing from the testimony and the papers in the case that each of the partners had his life insured for the benefit of his co-partner in consideration that each co-partner did the same for the other, and that it was clearly the intention of those men that in case of death of one of them the insurance should be paid to the other, that such intention should govern the court in determining the rights of the parties.</p>

<p>1. The use of a public street by a street railway, with single or double tracks laid along the middle line of the street, adapted to the legally recognized plane of the traveled part thereof, constructed and operated in the usual way, either by horse power or electricity, for carrying passengers, falls within the purpose for which such streets are created and maintained, and the abutting owner cannot recover compensation for such use, unless he has shown that he will suffer some special injury to himself by being deprived of light, air; or that free access to his premises which otherwise he would continue to enjoy rightfully. Por such special injury to himself, he may recover compensation under the rule provided by the con- « stitution.</p> <p>2. This principle will apply under a grant and franchise, to continue twenty-five years, authorizing the company to construct, maintain and operate a street railroad with singlo or double track and suitable side tracks and turnouts, where the company having constructed a single track road as being adequate for the then public require monts, but afterward, within the twenty-five years, undertakes to enlarge its facilities b cosntructing additional side tracks or turnouts to meet the increased demands of the public</p> <p>3. The fact that such double track, side-track or turnout would interfere with express wagons or teams, from backing up to the curb and standing crosswise on the street in front of plaintiff’s abutting premises, to receive and deliver express freight, thereby making his premises less valuable as and for an express office and wareroom, does not constitute such injury as entitles him to an injunction to restrain the railroad company from constructing such side track.</p>

<p>False tax returns- Corrections and additions by comity auditor. — Under sec. 2781 Rev. Stat., the auditor in making corrections and additions to false tax returns is only required to enter the gross amount assessed for each year on property omitted for taxation, and not to enter the specific items of property by him added and assessed.</p> <p>Suit by county treasurer. — The treasurer may sue to recover taxes added by the county auditor in a proceeding' to correct false returns, immediatey after the certificate therefor is received by him, and need not wait until the expiration of the time for the payment of annual taxes.</p> <p>Taxes added for property omitted, on tax return - -Computation. of five years bach.— Back taxes added by the auditor for omitted property in April, 1895, for three years hack from that time, embrace taxes for the year 1889.</p>

<p>Prosecution under law against sale of adulterated food — Want of knowledge is no defense — What to be considered adulteration of -articles of food.</p>

<p>Sec. one (1) of an Act of the General Assembly of Ohio, passed may 18th, 1891, vol. 91, Ohio St. 300, defines a house of ill fame; and in a criminal prosecution for keeping a house of ill fame, it will be sufficient to make out a prima facie ease, if the state prove the building, charged to be so kept, is generally reputed, in the neighborhood where it is located, “to be a building or place where persons of opposite sex meet for the purpose of prostitution. ’ ’</p>

<p>1. The statute, called the Hard law (91 Ohio Laws, 220) which imposes a tax upon “any person or persons, joint stock association or corporation” for doing express business in this state, is not unconstitutional, merely because the tax is discriminating.</p> <p>2. Nor is the statute retroactive.</p> <p>3. The defendants are Dot entitled to a deduction for amounts paid by them to railroads for transportation of their freight, which transportation did not begin and end in this state.</p> <p>4. Imputed errors of the State board of appraisers, committed in assessing the tax, can not be rectified by courts, until the remedies provided by the statute have been first exhausted.</p> <p>5. The defendant’s possessing, all of the properties, rights, attributes, privileges and immunities which usually belong to corporations they may be treated by the courts of this state as corporations, notwithstanding their designation as joint stock associations by the statute of the state in which they were organized.</p>

<p>By the terms of an exception in an accident insurance policy, it was stipulated that the insurance company was not to be liable, when death resulted “wholly or partially, directly or indirectly, from * * * hernia.”</p> <p>The insured started to run through an half-open door of his residence to catch a passing street car ; he ran against the door knob, receiving an injury called hernia ; from that injury he died.</p> <p>The decision is that the company is not exempt, under the terms of the exception, from liability for the amount of the policy.</p>

<p>1. Power of court over its records. — The common pleas court has jurisdiction over its own records and journals, and may, when necessary to protect a party in his rights, vacate a journal entry showing the allowance and signing of a bill of exceptions, and strike such bill from the files.</p> <p>2. Striking bill of exertions from files. — The court will exercise its jurisdiction to correct its journal and make it speak the truth, and strike from the files a bill of exceptions, in a case, on motion of a party injured, when it is made to appear the party complaining has not had an opportunity to examine the bill before it was allowed and signed, and that the ' bill is untrue in a material part, to the prejudice of the party complaining.</p> <p>3. Relief granted after term ti.me. — Ixi such a case the court will grant the injured party relief, notwithstanding- a petition in error in the case, has been filed in the circuit court, and the term at which the cause was tried in the court of common pleas, has adjourned sine die.</p>

<p>Attachment — Garnishment of maker of promissory note. — Under the provisions of our attachment law (sec. 5530 Rev. Stat. ).tho process of garnishment can only operate on what the garnishee might be owing to the defendant in attachment at the time of the service of notice. If the debt is represented by a promissory note, which, prior to the service of notice, had passed by endorsement from the defendant in attachment to a third party, there would be nothing owing by the garnishee to the defendant, so far as the note is concerned, and if the garnishee inadvisedly answers that he is still indebted to the defendant in the attachment, the actual holder of the note, not being a party to the proceeding, would not thereby be prejudiced. This applies as well to notes endorsed before as those endorsed after maturity, and whether the garnishee had notice of the transfer of the note or not.</p> <p>Same. — Application of rule. — An Ohio company was indebted to a Michigan company on an account for part of which is executed its notes to said Michigan company, and the latter then mortgaged said account and notes with other assets to a third party by chattel mortgage executed in Michigan, and filed there, but not filed in Ohio, and the mortgagee foreclosed said chattel mortgage and bought in said account and notes of the Ohio company with the other assets at such foreclosure sale, and thereupon transferred all of such assets to a fourth party, all of such proceeding taking place in Michigan. Such fourth party is the owner of all such assets including the account and notes of the Ohio company, and will bo entitled to the payipent of the same, as against the Michigan company to whom the account and notes were orignially payable, in a garnishee, proceeding instituted in Ohio by the Michigan company against the Ohio company to obtain the payment of such account and notes for itself; and the case does not depend on the comity between states, as to the rights of a mortgagee in one state against an attaching creditor in another.</p>

<p>1. The law for the protection of labels adopted by labor unions to designate the product of their members (89 Ohio St. 166) is constitutional.</p> <p>2. Such label adopted by a labor union would be protected under that statute by enjoining the unauthorized use of the same at the suit of such labor union although such union does not itself manufacture or deal in the respective article.</p> <p>3. The statements of a label recommending the goods as made by a first-class workman, and stating that the organization is opposed to inferior, rat-shop, coolie, prison, and filthy tenement-house workmanship, are lawful, and not objectionable as against public policy.</p>

The railroad from Zanesville to Morrow was constructed by the Cincinnati, Wilmintgon & Zanesville Railroad Company, organized in 1851, In 1852 the company issued its bonds to the amount of $1,800,000.00. bearing seven per cent, interest, and secured the same by its mortgage upon the railroad and all its property and franchises.

<p>Sec. 2117 Rev. Stat., providing that no charge shall be made by the Trustees of Water Works for supplying water for the usé of public school buildings belonging to the corporation, or for any hospital, asylum or other charitable institution devoted to the relief of the poor, aged, infirm or destitute persons or orphan children, applies to such institutions belonging, to the corporation and also to any charitable institution owned by the state, and is constitutional.</p>

<p>Delinquent taxes and penalty are payable out of the funds arising from the judicial sale of the railroad and other property of an insolvent railroad corporation, although the same became due and payable before the court acquired jurisdiction of the property sold, as against the rights of a mortgagee, under mortgage antedating the levy of taxes.</p>

<p>1. Where usurious interest has been paid on a loan, the amount of the usury may be credited on the principal.</p> <p>2. The same principle applies where the loan is evidenced by a note which is canceled by the giving of a new note, and the second is canceled by the giving of a third note, and so on, constituting one loan.</p>

<p> A chattel mortgage on stock in trade executed on the sale of a going business. </p> <p>A chattel mortgage executed to secure the balance of the purchase money for a going business, and covering not only the fixtures and store, but also the stock of goods and merchandise in such business, where it appears from the circumstances that the mortgagor should have the right to sell the stock in carrying on the business without being obliged to account to the mortgagee for the proceeds, is void as against creditors of the mortgagor so far as it relates to such stock in trade.</p>

<p>Insolvent bank — Officers carrying on business with knowledge of insolvency of bank — Right of customers to recover their money.</p> <p>Where it appears that a bank has been insolvent for a long time before the assignment, to the knowledge of the directors and officers of the bank, it was a fraud on the part of such officers to continue to do business, and persons having entrusted money to the bank, may recover it back if it can be identified. But where the money can not be identified, but was mingled with the funds of the bank, and the condition of the bank during the time was not worse than months before, they must take their chances with the other creditors of the bank. But where the money came into the hands of the bank impressed with a special trust, the assignee will have to refund it out of any money of the bank in his hands.</p>

<p>Partnership dealing under fictitious name — Act of May 19, 1894 — Registration of members constituting partnership.</p> <p>1. Such a partnership can not commence an action on partnership transactions until full compliance with the statute.</p> <p>2. Under the statute there is no disability imposed to make contracts or to transact business under the fictitious name, and such partnership may own property whether it consists of goods and merchandise or of choses in action.</p> <p>3. Where such property consists of choses in action, they may be assigned to a person not laboring under disability to sue, who may bring an action thereon.</p> <p>4. Such cause of action is not invalidated, and a general demurrer will not lie merely . because the petition fails to state that a certificate under the statute has been filed. Whether the defect can be taken advantage of by special demurrer? Query.</p> <p>5. Such legal incapacity must appear on the face of the pleading to be demurrable, otherwise the defect must be taken advantage of by answer.</p> <p>6. Where the names of all the partners appear in the firm name, the statute does not apply.</p> <p>7. The disclosing of the names of all the members of the firm in the petition does not take the case out of the operation of the statute.</p>

<p>Conveyance procured by false representations. — A conveyance of land at a price grealty below its value, procured by representations made to the owner by her confidential adviser and attorney, and which are false, will be cancelled at the suit of such vendor.</p> <p>Procuring conveyance by inducing confidential adviser of owner to make false representations. — Where O. is the attorney of R., and has acquired the confidence of A. as her confidential and trusted adviser, which is then well known to R., and R., for the purpose of procuring a conveyance from A. to him of a valuable tract of land owned by A. for an inadequate price, takes advantage of and uses said confidence and trust reposed in C. by A. to obtain such conveyance, and thereby induced C., while acting as such trusted adviser of A. to make false representation to A., which A. and C. both believe to be true, but that R. then knew were false, and thereby procured A. to make him said conveyance for a grossly inadequate consideration. Held: That though some of the elements of “fraud in fact may be wanting,” yet the transaction is constructively fraudulent, and the conveyance is void in law.</p> <p>Fiduciary relations — Equity.—Where a fiduciary relation exists, and a special trust and confidence is obtained thereby, which is violated, equity will not stand upon mere form, but will look through the form to ‘the substance to do justice between the parties.</p>

<p>Building Association mortgage- — When satisfied. — A member of a building association wlio borrows the value of his shares on his certificate of stock, giving a mortgage to secure said loan, where the conditions of said mortgage provide that he shall continuo to pay duos, premiums and interest until the association has secured the payment of the full value of each share of the mortgagor, is boun by such condition and mortgage to pay, although in his certificate of stock said association promises to pay the holder thereof the full value of his shares at the end of five years from the date thereof.</p>

<p>1. The act of April,’1893, for the improvement of Paddock road is not a mandatory act. 'ZZZ</p> <p>2. Sec. 7 of this act violates a constitutional provision in that it is special legislation conferring corporate power, but this section may be rejected and the remainder of the act stand unaffected thereby.</p> <p>3. The act in question does not deprive the citizen of his property without due process of law.</p>

<p>Fraudulent transfer by insolvent corporation to prefer creditors — When held general assignment for benefit of all creditors — Attachment of property fraudulently conveyed by one creditor no prior lien.</p> <p>Where a corporation, wholly insolvent, disposes of all of its property and thus ceases further to pursue the objects of its creation, and such disposition of its property was made to some of its creditors and stockholders in preference to its other creditors and stockholders, such transaction will be declared fraudulent, at the suit of any creditor, under sec. 6344,Rev. Stat.,and will then be declared a general assignment in favor of and in trust for all creditors. And where one creditor has attached part of the property so fraudulently disposed of to some preferred creditor, such attachment, after the conveyance has been declared fraudulent and void, will not give such attaching creditor a prior lien as against other creditors, but all the property so fraudulently conveyed will be held in trust for all creditors alike.</p>

<p>Probate of spoliated will — What evidence admissible on application to probate spoliated will.</p>

<p>Probate of spoliated will — What evidence admissible on application to probate spoliated will.</p>

<p>Probate of spoliated will — What evidence admissible on application to probate spoliated will.</p>

<p>Repeal of law by implication. — Repeals by implication are not favored in law ; and such repeal will not be recognized unless the repugnancy between the prior and subsequent acts of legislation be necessary or obvious and so great that the two cannot be reconciled by any fair course of reasoning.</p> <p>Special act making certain township an independent road district — Will not exempt township from tax levied by County Commissioners for road purposes.— A special act was passed by the legislature, making Thompson township, in Seneca county, an independent road district for macademizing, working, repairing, etc., the roads therein, independent from the operation of existing laws relating_ to the improvement of roads, and of all other laws not consistent with its provisions. The county commissioners afterwards levied a tax for road purposes on all the property of the county, including Thompson township. An injunction was asked to restrain the commissioners from collecting such tax from the property of Thompson township. Held, that such special act was not so inconsistent with the general law empowering the county commissioners to levy this tax on all the property of the county, including- Thompson township, as to operate as an amendment of the general law, and exempt Thompson township from its provisions. If it did, such special act would be unconstitutional.</p>

<p>Inter-state and inter-national extradition — Habeas corpus — Decisive construction of congressional act — Conflict of decisions in state and federal courts.</p>

<p>Where a widow elects_ to take under the will of her deceased husband, she is not barred of dower in lands not disposed of by the will, unless the will expressly provides that the provision made therein for the widow shall be in lieu of her dower right in such undivided lands.</p> <p>The Circuit Court, in Swihart v. Swihart, 7 O. C. C. R. 338, having given a wrong construction to the decision of the Supreme Court in Corry v. Lamb, 45 Ohio St. 203, and giving no other reason of their own, cannot be construed as an authority upon the question.</p>

<p>A mortgage executed by a wife on her own property to secure the debt of a firm, of which her hus'band is a member, no consideration passing to her and there being no merger of the firm debt, is void,</p>

<p> “Twin Wills.” </p> <p>1. A joint testamentary contract defined.</p> <p>2. Part of a will may be upheld, while part may be rejected, where they are not so connected that one must fail if the other fails.</p> <p>3. A charitable trust,the subject of which is indefinite,cannot be enforced.</p> <p>4. The rule of cy pres cannot be applied to save such a trust.</p> <p>5. Is the rule cy pres in force in Ohio ?</p>

<p>If a mortgagee, in taking a new mortgage to secure the same loan, expresses an intent to retain the lien of the prior mortgage, such intent controls, and the lien will be sustained as against intervening liens; if, in taking the new mortgage, he expresses an intent to rely on the lien of the new mortgage, such intent will control, and the lien of the prior mortgage is extinguished; if, in taking the new mortgage, he acts under a mistake of-fact, as if he act in ignorance of an intervening lien, and no intent is expressed, it will be presumed that he did not intend to release his prior lien, and equity will sustain such prior lien.</p> <p>The mortgagee may lose the lien of the prior mortgage if, after having acquired knowledge of the intervening lien, he clearly manifests an intention, by some act or word, of relinquishing or foregoing his rights under his prior mortgage.</p>

<p>Appointment of Receiver — Is a provisional remedy — When not to he exercised — Only in a strong ease — Injunction to restrain corporation from acts ultra vires or illegal.</p>

<p>Attachment sustained in an action to enforce statutory liability of a stockholder— What is a sufficient statement of plaintiff’s claim — Verification of petition by agent and attorney.</p> <p>1. An action by a creditor of an insolvent corporation under section 3260, Rev. Stat., to enforce the statutory liability of a stockholder for the debts of the corporation is an action upon a demand arising upon contract within the meaning of section 5521, Rev. Stat., relating to attachments against the property of non-resident debtors.</p> <p>2. The affidavit for an attachment in such an action, which alleges that the defenddant is a stockholder of the corporation, that the action is brought to enforce the liability of the stockholders of the corporation under the constitution and laws of the state of Ohio for the payment of the debts of the corporation, and that the claim sued on against the defendant is his liability as such stockholder for the debts of the corporation, sufficiently shows “the nature of the plaintiff’s claim” within the meaning of section 5522, Rev. Stat.</p> <p>3. Under section 5102, Rev. Stat., the pleading of a corporation may be verified by the affidavit of its officer, agent or attorney, and the provisions of section 5109, Rev. Stat., do not apply to such a case.</p>

<p> The issuance and serving of writs of execution and restitution in forcible entry and detainer cases. </p>

<p>1. “Walter Balcer’s Bre'aJsfast Ooeoa” an adulterated preparation.— Under the act of March 20, 1884, to provide against the adulteration of foods, “Walter Bakers’ Breakfast Cocoa,” in the preparation of which the manufacturer took the cocoa bean and extracted a considerable portion of the oil therefrom, and put the product thus prepared in packages, for sale, is a violation of the prohibition of this statute, “that an article of food shall be deemed to be adulterated if any valuable or necessary consistent or ingredient has wholly or in part been abstracted ' from it. ’ ’</p> <p>2. Adulderating by lowering strength or quality of the natur at produets. — When a simple article of food is manufactured, from a natural product, for convenience of the consumer, the essential and valuable ingredients of the natural product must not be lowered in preparing the same for the consumer.</p>

<p>The holder of a perpetual lease with privilege of purchase is an owner within the-meaning of the street assessment statutes.</p> <p>Boundaries of lots are to be determined for the purpose of assessment by use or occupancy, and not by imaginary lines on a plat.</p>

<p>Blacklisting — Right of discharged employe.</p> <p>1. Where there is no contract for a given length of time, the employer has a right to discharge his employe at will, but he has no right to interfere with his employment elsewhere.</p> <p>2. A petition alleging that the plaintiff had been employed by a railroad company, and that, having been discharged, his former employer, wrongfully and maliciously, combined with other railroad companies to prevent, and did thereby prevent, his obtaining employment by other railroad companies, by reason of whic& he sustained damages by loss of earnings, states a good cause of action.</p>

<p>Where an abutting property owner receives no notice of a resolution to improve the street, he .is relieved from the penalty of being deemed to have waived damages by reason of not having filed a claim. The right exists to file a claim for damages under sec. 2326, independent of the provisions of sec. 2315, where the provisions of sec. 2315 do not apply. The concluding provision of sec. 2315 as to transfer of title does not apply to the terms of sec. 2326.</p>

<p>A lease provided for payment of rent monthly, with provision for forfeiture in case the rent be not paid as stipulated. The lessor allowed the lessee to hold for two months without payment of rent and without demand for the same. At the end of the third month he made demand for the rent for three months, and on failure of payment seeks to forfeit the lease.</p> <p>Held: That by allowing the lessee to hold for the two months without payment or demand, he waived the right of forfeiture for those months, and that his demand should have been for the amount due for the last month.</p>

This action was brought by the plaintiff, as a person out of possession, having an estate in remainder in real property, against persons claiming to have an estate or interest therein, adverse to her, for the purpose of determining the interest of the parties therein, under section 5779, as amended April 21, 1893. Ohio L., vol. 90, p. 226.

<p>Construction of section 2740, of the Revised Statutes, as to taxation of personal property located in this state and subject to the control of a merchant with power to sell — When action of Board of Equalization is conclusive — Section 2740 held to be constitutional.</p>

<p> Responsibility for injuries from running cars at an unlawful speed, where an innocent act has intervened and become the immediate cause of the injury. </p>

<p>Tax Titles — Proof required of the owner of a tax certificate. — In the trial of the validity of a tax title, or the right to collect the statutory penalties in favor of the tax certificate owner, the burden of proof is on such owner to show that the land of the tax debtor was listed, advertised and sold as directed by statute; but by reason of the statutory language in that regard, a contrary rule of proof prevails as to the title of the owner by forfeited tax sale.</p>

<p>Fire Instirance — Failure to receive exceptions to proof of loss sent by mail — Bight of the Company to an appraisement — Where the company seizes and carries off the property remaining after the fire, the insured is not compelled to furnish proof of loss or submit to an appraisement.</p>

<p> Rapid transit a sufficient benefit to the public to render valid a contract which increases street railivay fares. </p>

<p>1. In an action to recover back money paid to the county treasurer as an assessment upon the business of trafficking in intoxicating liquors under the “Dow Law,” the tax duplicate is prima facie evidence of every fact which is necessary to-authorize the assessment, including the fact that the plaintiff was engaged in the business of trafficking in intoxicating liquors.</p> <p>2. An assessment can be lawfully made under the “Dow Law” upon the business of trafficking in intoxicating liquors in a township which has voted against the sale of intoxicating liquors under the “Township Local Option Act” of March A 1888.</p>

<p>Seioer assessment — The contractor is entitled to penatty, if the assessment is not paid at the time stipulated in the assessing ordinance.</p>

<p>B. recovered judgment against R. and caused execution to issue herein against the personal property of R. for 8279.19 and costs. R. was surety on an appeal bond for B. in another case in this court wnerein judgment was given against B. for 8129.19. R. sought to satisfy the execution against him by paying to the sheriff 8150 and the costs unconditionaly, and 8129.19 with directions to apply the same in satisfaction of such other judgment against B., which money the sheriff accepted on said terms and makes return accordingly.</p> <p>Held: That such payment by R. was involuntary; that the sheriff received it by virtue of his writ, and that he cannot divest himself of his official trust, but must pay it over to the execution creditor according to law.</p>

<p>Surface Water. — According to the common law each land owner must care for his own surface water. According to the civil law the lower land must receive the surface water which flows from the higher land in a state of nature, and the rule of the civil law seems to prevail m Ohio rather than the rule of the common law.</p> <p>Same — Effect of cultivation of land on natural flow of surface water. — The rule in Ohio seems to be that the cultivation of land by ordinary good husbandry, although it may change somewhat the course of the water and concentrate the flow of water ' at-places, is not such a control of the land as gives the neighbor any right to complain, although the flow upon his land may seem more severe and concentrated than it otherwise would be.</p> <p>Same — Right of lovier owner to erect dam against the flow of surface water onto his land. — If a land owner has done anything more than good husbandry would justify him in doing in the cultivation of his land, in bringing together larger quantities of surface water, and directing over into his neighbor’s land any larger quantities than exist in a state of nature, then such neighbor has his action. But he has no right to erect a dam, notwithstanding the fact that he may have suffered some damage thereby.</p> <p>Same — Damages.—The erection of such a dam or structure, preventing the natural flow of the water is an invasion of the upper land owner’s right, and the averment of the fact is in law to aver that the owner of the land so affected was injured, for which he has remedy.</p>

<p>Specific performance — Vayue agreement by railway trustees for building bridge over their tracks where they cut through plaintiff’s land — Specific performance ivill only be decreed where the work to be performed is defined with a reasonable certainly.</p>

<p>Right of abutting lot-owner in street in front of his premises. — Where the city council grants by ordinance to a railroad company the right to lay its track® over a street, the construction of such tracks will be enjoined at the suit of an abutting property owner, whose consent has not been obtained, where it appears that the construction and operation of such railroad would substantially interfere with his rights and easements in the street, and damage his property and building, until such railroad company shall have fully compensated such abutting.property owner.</p> <p>Material or substantial injury, what degree of proof required. — The question whether the damage to the abutting property would be material or substantial, will be-determined by the usual rules and upon a preponderance of all the evidence.</p> <p>Benefits as offset to Injury. —Under the provisions of our constitution and the decisions of our courts, the court is not justified to set off general benefits against special damages.</p> <p>What to be anticipated in ¡determining injury. — Only the consequences which would naturally arise from a proper construction or operation of the railroad to be considered by the court.</p> <p>Extent of injunction. — The court considers the question to what extent the construction of the railroad should be, enjoined in such a suit.</p> <p>Mandatory injunction.- — Where a railroad company, under an ordinance of the city granting the right to lay its tracks in a certain street, proceeds without having first obtained the consent of abutting property owners to tear up the street to construct its road, a mandatory injunction will be granted on the suit of an abutting property owner .whose property will be damaged by such construction, ordering the railroad company to restore the street to its former condition in front of the property of such abutting owner.</p>

<p> Judgment of Special Term will not be disturbed by General Term on the ground that it is contrary to the weight of the evidence, unless it is clearly so. </p>

<p>Heard on demurrer to petition for a settlement of partnership affairs.</p>

<p> A public lighting contract for the city of Cincinnati falls within the provisions of the Worthington and of the Burns laws. </p> <p>In making a contract for a term of years for the lighting of the streets, alleys, public places and public buildings, the City of Cincinnati is governed by the provisions of sections 2699 and 2702, Revised Statutes; if the certificate required by those sections is not made by the City Auditor before or at the time of the making of such contract, the contract is void.</p>

<p>The act of sodomy committed by a husband with a beast, does not constitute adultery undor the laws of Ohio in regard to marriage and divorce, but does constitute extreme cruelty.</p>

<p> Boundwry lines of certain alleys in the plat of Carrsville in the East end, Cincinnati, Ohio, affirmed and fixed. </p>

<p>Tne court in fixing the assessable frontage of any abutting lot or. lots for a street improvement, will consider any lease or conveyance containing a description of the lot or inlots in question, which parties have recognized and acted upon prior to the time of proceedings declaring it necessary to improve.</p>

<p> Construction of the Mechanic's Lien Law. </p> <p>1. Material men, laborers and sub-contractors have no claims against the owner, not founded on the contract of the principal contractor. , 2. The law presumes, in the absence of fraud, that they had notice of the terms of the original contract.</p> <p>3. If the principal contractor, by virtue of his contract with the owner, becomes the agenl, the agency is special, and the powers of the agent are limited by it; and all persons performing labor or furnishing material for the principal contractor, accept employment with an implied assent to the terms of the original contract between such contractor and the owner.</p> <p>4. If the building contract between owner and contractor expressly provides that no lien shall be filed no lien can be.</p>

<p>Railway companies held to the highest degree of care toward passengers.' — When the relation commences it continues until the tram has reached its destination, and the passenger has time to leave the premises by the usual route. — A passenger has a right to assume that the train has reached the station, and to leave the tram when the name of the station is called and the train stops, unless he knows, or by the ordinary use of his senses can perceive otherwise, and that it is dangerous to leave the train.</p>

<p>1. Right to recover where there is imreasonable delay in giving notice of death. — In an action on a policy of insurance against accidental injuries resulting in death, the following facts were shown by the pleadings: The policy provided that the insurance company shall have immediate written notice with full particulars of any accident, and that unless affirmative proof of death be furnished within seven months and legal proceedings, if any, for recovery under the policy be begun within one year from the time of the accident, all claims based thereon shall be forfeited to the company. While the policy was in force, the insured fell upon an icy sidewalk,and two days thereafter died from the effects of the fall. Immediately after the accident the plaintiff, who was the beneficiary under the policy, made every effort in her power to find the person or persons who witnessed the accident, but without success, and notwithstanding the utmost diligence on hex-part did not know that the fall was accidental until thirteen months after the accident, when she immediately gave written notice to the company with full particulars of the accident and cause of death. The company acknowledged by letter the receipt of the notice, and therein denied all liability under the policy, for the reason that the time for making any claim on account of the accident was past, and informed the plaintiff that it would be useless and unnecessary for her to make formal proof of the accident and death. Formal proof of the accident and death was not made nor furnished to the company, and this action against the company was begun thirteen months and seventeen days after the accident. No notice of the accident was given to the company other than the one above mentioned.</p> <p>Held: That the action could'not be maintained, and that a motion for judgment on the pleadings in favor of the defendant should be granted.</p>

<p>Criminal lam--Former conviction of assault and battery--Subsequent death.- A conviction of assault and battery is not a bar to a subsequent indictment for manslaughter where the injuries resulted in death after the former conviction.</p>

<p>Franchise. — The death of either part after a question, is submitted to the court, but before the court renders a decision, does not prevent the court from deciding the question, but the court may enter such decision as of the date of submission when both parties were alive.</p> <p>Verdict against the evidence — Attendance of a party at trial, but not testifying to deny statements of witnesses. — Where disinterested parties testify positively to the speaking of certain words, and the other party is present and hears the testimony, and does not go upon the stand and deny it, the fact that he did not go ujjon the stand and testify is a strong circumstance tending to prove that he admitted the speaking of the words as charged.</p>

<p> Method of procedure where an administrator attempts to sell real estate which his intestate conveyed aioay in his lifetime in fraud of his creditors. </p> <p>1. An administrator’s power to sell real estate which his intestate conveyed away in his lifetime in fraud of creditors, is wholly derived from the statutes. If his proceedings are not in conformity with the methods prescribed by, the legislature, they are void.</p> <p>2. He may within four years after the death of his intestate choose either of two methods of procedure; (1) He may bring ejectment in the court of common pleas for the recovery of the possession of the land either before or at the time of tiling his suit in the probate court to sell the land to pay debts; or (2) He may-in one action seek to avoid the fraudulent conveyance and pray for a sale of the land,</p> <p>3. If he seeks complete relief in one action, that actionmust be brought in the court of common pleas.</p> <p>á. He can not bring such action in the common pleas, obtain an avoidance there of the conveyance, and then institute an action in the probate court for the sole purpose of selling the land to pay debts.</p> <p>5. While such action brought in the common pleas is pending, and four years after the death of the intestate has elapsed, the probate court has no jurisdiction. Sections 0139 and 6110, Revised Statutes, construed.</p>

<p>Heard on application for $500 in lien of homestead.</p>

<p>Compensation of guardians — The right to draw upon the principal of the ward’s estate, if the income proves inadequate for the needs of the ward.</p>

<p>Decision on demurrer to reply.</p>

<p>Acquittance — Misunderstood when signed — Testimony tending to modify — Proof of additional consideration to the one expressed in contract. — -A further consideration to the one expressed in a written instrument may be proved by parol, provided it is not of a different nature from the one expressed in the deed. The amount or kind of consideration is not considered an essential part of the contract, and is open to contradiction or explanation like a common receipt.</p> <p>Signature to instrument, when binding on party. — If a party with a full knowledge of the facts and with the instrument explained to him did voluntarily sign a receipt or acquittance, the same would be a full discharge of liability to the other party to the instrument; but if such party did not sign the paper understanding its contents and agreeing to it, he would not be bound by it.</p>

<p>Purchase of property by a village which has not the necessary funds on hand and gives a mortgage.</p> <p>Purchase by a village of property in which one of its officers has an interest.</p>

<p>On motion for non-suit.</p>

<p>In this state a married woman may be allowed a homestead exemption out of her undivided interest, in real estate owned by her and others in co-tenancy.</p> <p>In such case, the husband, not owning any real estate himself, is not allowed to select and hold exempt from levy and sale under-section 5441, Rev. Stat., personal property in lieu of a homestead.</p>

<p>In an action under sec. 6778, Rev. Stat., to recover the damages sustained by the plaintiff by reason of the usurpation by the defendant of the office of member of a village council, the attorney’s fees and expenses incurred by the plaintiff in his action to oust the defendant from the office cannot be recovered.</p>

<p>The act of April 20, 1893, 90 O. L. 446, providing a special mode of organization of government for all cities (excepting cities of the second class, third grade A having a population of 31.897) which according to the federal census of 1890 had, or which according to any subsequent census may have not less than 27,000 or more than 34,000 inhabitants (Akron and Youngstown) is unconstitutional. If considered as a special act, it confers corporate powers, and violates sec. 1 art. 13, of the consitution. If considered as a general law, it has no uniform operation throughout the state, and violates sec. 26 art. 2, of the constitution.</p> <p>Any classification of cities is essentially of their organization, and under the provision of sec. 6 art. 13 of the constitution must be made by general laws having a uniform operation throughout the state.</p>

<p>Void ju.diciid sale of other lands to satisfy portion of debt not made by sale of mortgaged premises- --Subrogation of purchaser — Dower.</p> <p>D. died owning lands in Paulding county, Ohio, covered by mortgage, lhe mort- . gagee having also, died, his administrator brought suit to foreclose the mortgage making D’s executor and the heirs and legatees of D., deceased, parties — service by publication was had — decree of foreclosure and sale of the mortgaged premises fallowed. lhe mortgaged premises not selling for enough to pay the amount found dhe by the court, an execution was issued and other lands sold to satisfy the debt due. the mortgagee’s estate. The lands so sold were purchased by B., and the money he paid as the purchaserprice thereof applied to the payment of the - debt of D’s estate, on the" mortgage.</p> <p>Ituata action for partition-brought by D’s widow and joined.in by the heirs and.devisees of-Doyle;-deceased : .Held, ,1. The sale on execution was void, and B’s title to the lands he purchased has failed, and B. is entitled to subrogation under sec’tion-5410; 'Revised Statutes, and has a lien on the lands sold to the extent of the money he paid as applied to the debt of the estate of D., deceased, as against the heirs and legatees of D., deceased, but not as against the widow’s claim of dower. «</p>