Volume 2 — Ohio Nisi Prius Reports, New Series

<p>TAXATION — LEASEHOLD AND FEE.</p> <p>Taxation — Perpetual Leasehold and Fee — Covered by One Building Susceptible of Division — Properly Appraised as One Property— Transfer of Part of Tract by Auditor — Does Not Work a Forfeiture of Taxes Charged Against the Property as a Whole — Sale of Leasehold for Sum Insufficient to Pay Taxes — Balance Chargeable Against the Fee.</p> <p>1. Where the owner of a fee and of°an adjoining perpetual leasehold covers both lots with one building, susceptible of division into two buildings at the line dividing the two tracts, it is proper to appraise the tracts with the building thereon as one piece of property.</p> <p>2. The transfer of a part of a tract by the county auditor, in conformity with the provisions of Section 1025, Revised Statutes, does not work a forfeiture against the state of any of the taxes standing charged upon the duplicate at that time against the property as a whole; and the purpose of the statute, in providing that the valuation of the part so transferred and of the part remaining ' shall be stated, is to fix the proportion of the taxes so charged which each portion of the tract shall bear.</p> <p>3. Upon the sale of a leasehold for a sum insufficient to pay the taxes charged upon it, the balance remaining unpaid becomes a charge against the fee. As to the penalties which have been imposed, Quaere?</p>

<p>NOTICE AS TO DEFECT IN STREET.</p> <p>Stallion Escapes from His Pasture — Falls into Hole in the Street and is Killed — Negligence of the Owner — Notice to Policeman of Condition of the Street.</p> <p>1. A police officer in the city of Cincinnati is an agent of the state, but he is required to enforce all ordinances of the city council by Section 1878, Revised Statutes; therefore when an ordinance is passed, a member of the police force becomes an agent of the city to enforce the ordinance, and knowledge by the officer of its violation would be actual notice to the city. As there is no ordinance in Cincinnati relative to holes in the streets, knowledge of a police officer of a hole in the street is not notice to the city, unless there is an established custom on the part of , the street department of the city to obtain notice of such holes through the police force. The policeman is not an agent of the city for this purpose merely by virtue of his office.</p> <p>2. Where there is testimony that a policeman of this city reported a hole in one of the streets, about a week before a horse was killed in the hole, to the officer in charge of the station, and further that it was the custom of the police to report dangerous places in the streets to such superior officer, and for such superior officer, or in case he was busy, for the policeman himself to report such defect by telephone to the street department of the city, this is circumstantial evidence tending to show that the street department was in the habit of accepting and acting upon such notices from the police force; and a charge that if such circumstances are proved, notice to the police officer of the existence of the hole in the street sufficiently long before the accident to report the danger would be notice to the city, is a correct statement of the law.</p> <p>8. The admission of opinion evidence on a matter not altogether •one of common knowledge is largely discretionary with the court, and if the court thinks the testimony of one having expert knowledge on the subject would aid the jury it may be admitted, though on a question not really requiring expert testimony; and the opinion of a man having experience with stallions as to tbe propensity of young stallions to jump out of their pastures at a certain time of the year is proper to go to the jury where the sufficiency of a fence to keep a young stallion in a pasture is in question.</p> <p>4. Although the owner or keeper of a stallion is forbidden by Section 4201, Revised.Statutes, to allow the same “to go or be at large,” still the mere fact that a stallion is out of his pasture does not amount to contributory negligence on the part of the owner where the stallion falls into a hole in the roadway and is killed. Neither does the common law doctrine hold good in Ohio, that it is unlawful for an animal to run at large. Contributory negligence on the owner’s part is not established by the mere fact that the stallion jumped the fence, and the owner may show that he used reasonable care to restrain the animal.</p>

<p>BURDEN OF RAILROAD TRACK IN STREET.</p> <p>Street — Burden of a Railroad Switch Track Extending Along — Property Owners in the Entire Square Entitled to Compensation for, When.</p> <p>The laying of an additional track- for a steam railroad, although only a switch track, running two hundred feet on the south side of a street, is the imposition of an additional burden, for which abutting or contiguous property owners on said entire square, and on both sides of the street are entitled to compensation, if they can show an injury to their land separate and distinct from ,that suffered by the public at large.</p>

The plaintiff in this case having rested his testimony, a motion has been interposed by the defendant that the jury be directed to return a verdict for the defendant in the case, and in passing upon this motion I will first refer briefly to the issues which are made upon the pleadings and to the proof that has been introduced.

Plaintiff in this case avers that it granted by ordinance according to law, on June 27, 1892, to The Columbus Gas Light & Coke Company, its successors and assigns, the privilege of laying and maintaining pipes in the streets and alleys of the city for the purpose of supplying gas to the consumers thereof, and attaches a copy of the ordinance to the petition and makes it a part thereof.

<p>APPROPRIATION BY ONE RAILWAY COMPANY OF THE LANDS . OF ANOTHER.</p> <p>Eminent Domain — Railways—Necessity for Appropriation — Present Needs — Future Requirements — Efforts to Agree — A Definite Offer to Purchase Necessary.</p> <p>1. A railroad company proposing to appropriate the land of another company longitudinally must establish an urgent necessity for the land.</p> <p>2. Where it is shown to be absolutely necessary that the plaintiff company have the land it seeks to appropriate in order to build its road, and the defendant company does not require it for immediate use, and can so arrange its tracks as to avoid using it for a long period to come, the right to appropriate will be held to exist.</p> <p>3. In order to establish a failure to agree, it must appear that an explicit offer was made of a definite amount of money for a definite amount of land.</p>

A motion has been filed in each of the above eases asking that the petition of the plaintiffs, the telephone companies, be made more definite and certain, and requesting the court first to order them to set out what streets, alleys and public ways plaintiffs propose to occupy with their poles, wires, underground conduits and other structures.

The plaintiff, Dan. Thew Wright, at the trial in special term sought and recovered a judgment against the city of Cincinnati for an injury to his real property resulting from the overflowing of water caused by the clogging up of a gutter on Hillside avenue in said city, in the rear of and above the property of the defendant in error.

The petitioner sues as a citizen and tax-payer of Cincinnati, and alleges that on the 5th day of May, 1903, he requested the city solicitor to bring this suit for the reasons hereinafter stated, but that said officer refused to do so.

In the month of March, 1900, the plaintiff was a professional nurse of Dr. Ambrose, who had in his employ as a servant one Faitha Gilliam. The latter placed arsenic in the oatmeal served to the family, and the plaintiff having eaten of the oatmeal was made seriously ill and claims to have been permanently injured. She seeks to recover damages for said injuries from the druggist from whom Faitha Gilliam purchased the arsenic.

The bill of evidence in this case shows that the plaintiff in error was the owner of a tenement factory building in Cincinnati, the several floors of which building were occupied for manufacturing purposes by tenants, among whom was The American Suspender Company, by whom the defendant in error was employed. The entrance to the elevator on che ground floor was by a hallway leading from the street, and unlighted except from the front entrance.

<p>This action was brought by the plaintiff who states that for many years he has been and is now by occupation a plumber and dealer in plumbing supplies. He brings the action against the defendants for engaging in an unlawful combination to control and regulate the quantity and price of such supplies in this city, to his damage. He alleges that it is necessary for him in carrying on his business to purchase these supplies from the defendants who were at the times mentioned all the persons and firms engaged in the business of selling and jobbing such supplies, and that by reason of the combination stated he was compelled to close up and discontinue his business. The averments of the petition are somewhat voluminous, and I will not undertake to state them in detail.</p>

This case submitted to the court upon the demurrer of the defendant, Lida S. Cary, to the reply filed by the plaintiff to her answer to the amended petition of plaintiff, presents for the court’s construction the following will: “In view of the uncertainty of life, I, Maria L. Cary, do hereby make and publish this my last will and testament, written with my own hand, this twenty-ninth day of April, 1847, revoking all former wills by me made. “First.

These eases each involve the constitutionality of the act of April 18th, 1904, commonly called The Brannoek Local Option Law, entitled “An act further to provide against the evils resulting from the traffic in intoxicating liquors, by providing for local option in residence districts of municipal corporations.”

The relators are now, and were in the year 1903, publishers of a German newspaper in Auglaize county, this state. For six months prior to the general election of 1903, the relators published in said newspaper the proposed amendments to the Constitution of Ohio, under a contract, as they allege, with the defendant, as such state supervisor of public printing.

This action was brought by the plaintiff to recover a balance due as claimed by the plaintiff for the purchase of a bull bought from the plaintiff by the defendant at the cash price of $1,100, averring that the defendant paid cash $600, leaving an unpaid balance of $500, with interest from date of purchase.

In this case the jury was waived and the cause submitted to the court upon the evidence and the law. The case has been elaborately and ably argued upon both sides. The decision of the ease turns mainly upon the question as to whether or not certain broom machines used by the National Broom Company, the insured, and from which the state by assignment of the policy acquires its right were covered by the policy of insurance.

Tbe plaintiff in error is the administratrix with the will annexed of Mary A. Harrison, deceased, by whose last will and testament a disposition was made of her property as follows: “I give, devise and bequeath all of my estate of whatever nature whether real, personal or mixed to my beloved daughter Mary Harrison (plaintiff in this action) for and during her life.

<p>JOINDER IN SUIT ON POLICIES OF INSURANCE.</p> <p>Joinder — Of Defendants and of Separate Causes of Action — In a Suit on Policies of Fire Insurance.</p> <p>In a suit to recover on a fire loss it is not a misjoinder of defendants, or of separate causes against different parties, to join in one action several companies whose policies cover the same property, where each policy contains the provision that the company issuing it shall not be liable for a greater proportion of any loss on the property described than the amount thereby insured bears to the whole amount of insurance covering the property.</p>

The plaintiff in this case seeks an injunction to enjoin de-; fendants from interfering with her in connecting a waterpipe to supply water to plaintiff’s premises, and to perpetually enjoin defendants from interfering with her use of said waterpipe.

This is an action brought by the plaintiffs to set aside and declare void certain proceedings had in the Probate Court of Darke County, Ohio, in the month of December, 1901, whereby John DeCamp and Job DeCamp, deceased, were declared partners in nine parcels of land in said county, amounting to about 525 acres, and the administrator of said Job ordered by said probate court to convey all the interest of Job in said land to said John as surviving partner in pursuance to the…

This case is submitted to the court upon a motion of John Eislé, who represents to the court that he purchased certain lots sold under foreclosure proceedings in this action and that the sheriff is unable to deliver to him a good and sufficient title to such property by reason of certain defects appearing in the entry of judgment and in the publication of notice of sale, and by reason of a certain mortgage on said property.

<p>Heard on motion for new trial.</p>

The petition sets forth that the plaintiff is a municipal cor-poration and that the defendant is its mayor. That previous to defendant’s election to such office, the city council of Piqua had passed an ordinance fixing the salary of the mayor at $1,200 per annum.

The plaintiff in this case is the owner of a very large and valuable farm situated in this county on the west side of the Whitewater river, along which it extends for a considerable distance below a substantial bridge built about 1860. He also ■owns about an acre of ground on the same side of the river above the bridge. That part of his farm along the river is very fertile bottom land, stretching to the hills about half a mile away.

This case has been submitted to me on an agreed statement of facts, and seeks a construction of the residuary clause in the will of William C. Bare.

<p>JURISDICTION OF POLICE COURTS UNDER. THE MUNICIPAL CODE.</p> <p>Police Courts — Jurisdiction of, under the Code of 1902 — Judicial Notice of Legislative Vote — Concurrence of a Majority Sufficient to Repeal Acts Requiring a Two-thirds Vote — Sentence—Not Rendered Invalid hy Form of, When — Plea of Guilty Erroneously Entered — Criminal Law.</p> <p>1. For the purpose of determining whether or not a public act of the Legislature received the two-thirds vote required by Section 15 of Article IV of the Constitution, courts will take judicial notice of the vote by which such act was passed.</p> <p>2. Under the Constitution of 'Ohio, any enactment of law may be repealed by the concurrence of a majority, even though under the. Constitution, the act so repealed was required to he and was passed by the concurrence of two-thirds of the members of each House.</p> <p>3. The act of October 22, 1902 (96 O. L., 20), known as the “Municipal Code” having been passed by a majority vote only, it follows that Sections 190, 191 and 192 thereof, which attempt to create police courts and provide their jurisdictions, are a nullity.</p> <p>4. Those several acts creating police courts in various cities of the state, and conferring final jurisdiction as to misdemeanors having been expressly and intentionally repealed in said act of October 22, 1902, a court can not so construe the entire act as to nullify said repeals on the ground of legislative intent to the contrary. . Error of the Legislature in its construction of the Constitution or interpretation of its enactments does not authorize a court to so pervert its judicial functions as to assume to decide what the Legislature should have done or intended.</p> <p>5. A sentence of court that the defendant be imprisoned and pay a fine and stand committed “until the fine and costs of prosecution are paid” is not void because it fails to add the words of the statute, “or secured to be paid or tbe offender is otherwise discharged by law.” This last quoted clause will be read into and considered a part of every sentence whether expressly named or not and no prejudice can arise by reason of such omission.</p> <p>6. The defendant in police court charged with assault and battery was informed by his attorney, acting in good faith, that an arrangement had been made with the prosecutor and the court, whereby, on a plea of guilty, the minimum penalty of a fine would be imposed. Relying on this statement, and its truth believed in by both himself and his counsel, and reasonable grounds existing for such belief, the accused changed his plea of not guilty to that of guilty, whereupon the court, in ignorance of any such arrangement, gave the accused a fine of $100 and the maximum penalty of six months in jail. Held: That upon the accused and his counsel immediately giving notice to the court of their mistake and misunderstanding, it was the duty of the court, on motion, to set aside the sentence and permit the accused to withdraw his plea and plead “Not guilty.”</p>

This was an action to recover $800 on a fire insurance policy on a house which it was claimed was totally destroyed by fire.

<p>Heard on application to probate will.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

The petition in this ease reads as follows: “The defendant is a corporation duly organized and doing business under the laws of the state of Ohio. “During the month of September, 1902, the defendant was engaged in conducting a profit sharing contest, and at different times offered various prizes to be awarded to the person or persons who should make the nearest estimate or who should estimate exactly the vote which would be cast for Secretary of State of Ohio at the election…

<p>Heard on demurrer of defendant to reply of plaintiff. '</p>

The action below was by T. C. Campbell against the heirs ■ of C. T. Hayman, to specifically enforce the following contract: Cincinnati, Ohio, December 15, 1900. “This agreement entered into this fifteenth day of December, 1900, between C. T. Hayman and T. C. • Campbell, witnesseth that, “Whereas, Charles T. Hayman entered into a memorandum agreement in the following words and figures, to-wit: Cincinnati, Ohio, November 15, 1898. “We, or either of us hereby agree to deed to…

This ease comes before the court on a general demurrer to the petition, and the amendment to the petition.

Certain of the defendants in this action have filed separate demurrers to the petition, amendments thereof and supplements thereto, and also to the various cross-petitions filed in the action by creditors of the defendant corporation, upon the ground that the action was not brought against them within the time limited by law for the commencement of such actions.

<p>On October 14, 1902, the plaintiff filed its petition in this city of Cincinnati, bounded on the north by a line parallel with, and 150 feet south of Harrison avenue; on the east by the west line of Section 25, Town. 3, Fractional Range 2, Miami Purchase; on the south by Liberty street, and on the west by the Baltimore & Ohio Southwestern Railroad, and that upon said premises it had erected a freight house 300 feet long by 30 feet wide, and a large area of platforms and railroad tracks, which buildings, platforms and tracks were used by it constantly in the operation of its road.</p>

<p>RIGHTS OF MORTGAGEE UNDER. INSURANCE POLICY COVERING MORTGAGED PREMISES.</p> <p>Insurance — Mortgagor not the Agent of Mortgagee in Procuring — And Fraud of Mortgagor in Procuring not a Defense against Claim of Mortgagee under the Policy.</p> <p>1. A mortgagor is not in any sense the agent of the mortgagee in procuring insurance on the mortgaged premises for the benefit of the mortgagee as his interest may appear and in accordance With an agreement so to do.</p> <p>2. Where the mortgagee is not a party to the insurance contract, and had no knowledge of any fraud in the procuring of the insurance, an allegation of fraudulent representations and concealments on the part of the mortgagor in procuring the insurance does not constitute a defense to the claim of the mortgagee under the policy.</p>

The plaintiff is the duly elected, qualified and acting prosecuting attorney of this county; and defendants are the duly elected, qualified and acting commissioners thereof, as said plaintiff states in his petition.

A general demurer to the petition was filed in this case. The petition alleges that the defendant is a corporation, operating an electric street railway in the city of Cincinnati, and then contains the following averment: ‘ ‘ That on the said date plaintiff was a passenger on one of the cars of the route aforesaid, having paid his fare required by the said company to be paid.

Plaintiff brings its action against Etta H. Milligan and Frank E. Milligan upon a note for $588, executed by defendants, and dated July 5, 1902, payable on or before July 5,' 1903, to Ellen and Christopher Bollman for $588, with five per cent, interest from date.

This is an action brought by the city of Columbus, Ohio, to declare null and void the franchises heretofore attempted to be granted to the defendant, The Federal Gas & Fuel Company, and to enjoin it from taking any further action thereunder.

<p>Error to police court of Springfield.</p>

In this action plaintiff seeks to recover judgment against defendant on two promissory notes, upon the liability of Constant Isabel, the decedent, as indorser of said notes to the plaintiff, the indorsee.

The plaintiff and defendant are both manufacturing corporations, each owning, by lease or purchase, a manufacturing site, fronting on different streets but situated in the same block, opposite to each other, and abutting in the rear on a ten-feet alley, which alley runs from a cul-de-sac upon the east and between these two properties beyond the same to a point, and then at right angles north, the same width, and in the shape of an “L” to York street.

<p>ESTOPPEL AGAINST DENIAL OF TITLE TO LAND.</p> <p>Equitable Estoppel — Doctrine of, Applied Against One Receiving the Benefits of a Contract — TWho Afterward Denied Title to the Land to Which the Contract Related,</p> <p>The principle of equitable estoppel is applicable to one who, having received the benefits of a contract, seeks to escape from its further provisions by claiming that the title to the land involved in the contract was, at the time he executed the contract, temporarily out of his possession.</p>

<p>The executors of William Stacey, deceased, filed a petition in the Superior Court of Cincinnati, upon two policies of insurance issued by the Standard Life & Accident Insurance Company, of Detroit, Michigan, to William Stacey, of Cincinnati. Both policies covered loss of time resulting from bodily injuries suffered during the term of said insurance by external, violent and accidental means, disabling the insured; and if death resulted within ninety days from such bodily injuries as the proximate cause and sole cause thereof, then the company was to pay five thousand dollars on each policy to his executors.</p>

These eases are submitted upon a motion of the plaintiff to retax the costs. I will not attempt to state in detail the facts, but only my conclusions. After a careful consideration of the argument of counsel upon both sides, and the authorities cited, I am of opinion that the costs in this case are properly taxed against the plaintiff.

<p>RIGHT TO LAY STREET RAILWAY TRACK AGAINST OBJECTION OF ABUTTING OWNER.</p> <p>Street Railways — Grant by Council of Right to Construct — Abutting Warehousemen — Gan Not Complain of Obstruction of Ingress and Egress — Where Grade of Street is Not Changed — Change of Route— Rights of Abutting Owner and of the Public — Street Railway Not an Additional Servitude — Consents—Injunction.</p> <p>1. The owners of lots abutting upon a street in a municipality hold them subject to the right of the public to use the street for street purposes, of which the construction and operation of a street railway is one, and unless there is a change of grade or some unnecessary interference with an abutter’s easement, he can not complain when council has authorized the construction; and if' from the peculiar nature of his business his trade is impaired or his property rendered less desirable, this is damnum absque injuria.</p> <p>2. A departure from the established route of a street railway, by running over private right of way to avoid sharp curves, is not fraud per se against abutting property owners, whose consents were secured with the understanding thát the line would follow the route specified. The right to complain of such change is in the public and not in the abutter, unless there has been fraud in obtaining his consent.</p> <p>3. The presumption is that council granted the right to build the road after being satisfied that the requisite consents had been given, and the burden of proof is upon one asserting the contrary.</p> <p>4. The owner of a life estate is the owner of a freehold interest, notwithstanding her life estate is coupled with a conditional defeasance, and a consent from such owner to the building of a street railway is a valid consent.</p>

<p>The defendants have, by motion, asked for the appointment of a receiver. The action is a statutory action to test the validity of a will. The contestant claims the court is without power in such ease to appoint a receiver.</p>

The plaintiffs seek tp be relieved from a special road tax ■which was first levied on their property in the year 1891 for the improvement of a road under what is called the one mile law.

The question here presented is whether Burt L. Reese, a devisee under the will of Huida R. Huffman, deceased, takes under said will a vested estate in the real estate in 'question at the death of the testatrix, or not until the expiration of ten years after her death. It involves a construction of said will, and especially item 4 thereof. In item 2 of said will she gives absolutely to said Burt L. Reese certain personal property.

Plaintiffs seek to recover damages for breach of trust. It is alleged — ■ 1. That defendant occupied towards plaintiffs a special relation of confidence and trust, and that by reason thereof he was charged with all the duties and obligations of a trustee. That before purchasing the stock of plaintiffs it was his duty to make full and frank disclosure of all material- facts affecting the value thereof.

The defendant in error, The Queen City Telephone Company, filed a petition in the probate court of this county, alleging that it is a corporation doing business under the laws of the state of Ohio, organized for the purpose of constructing, operating and maintaining lines of telephone and telegraph in the city of Cincinnati; that on or about the 12th day of October, 1903, it made application to the city council to prescribe a manner of use for it of the streets of the city…

The plaintiff brings this suit as a tax-payer and alleges that the city solicitor was first requested to bring the same, but that he has failed to do so. The action is brought to restrain the defendants, constituting the board of public service of this city, and the auditor and treasurer of the city and one John E. King from taking any steps under a contract entered into for the construction of a system of sewers in this city.

The motion is to quash the service of summons in this ease. It appears that the defendants, Blair and Beem, are residents of Union county; that the defendant, Montrass, is a convict in the Ohio penitentiary, sentenced by the Court of Common Pleas of Union County.

<p>FURNISHING COUNTY SUPPLIES UNDER. AN ILLEGAL CONTRACT,</p> <p>Contracts — Recovery on Can Not be Had — Either for Reasonable Value or on a Quantum Meruit — Where Illegal and Entered Into With a County — Action to Recover Bach — Parties.</p> <p>1. A person furnishing bridges or other material or supplies to a county under an illegal contract is a mere volunteer, and can not recover back the property so furnished nor the reasonable value thereof nor on quantum meruit.</p> <p>2. Under Revised Statutes, Section 1277, as it now stands, whatever could have been prevented by injunction, can be remedied by a suit to recover back.</p> <p>3. Whether the facts stated in a suit to recover back, moneys illegally drawn out of the county treasury constitute an action in tort or on contract, all parties participating in the making of such contract, and in the receipt of the moneys may be properly joined as defendants.</p>

The plaintiff has a block in this city on the corner of Broad and High, having a frontage on High street of 107 feet 8% inches, and the usual depth of the inlots, 187% feet. On the tax duplicate for ten years this property has been misdescribed, the description omitting about nine feet of the frontage.

On tbe 27tb day of June, 1904, an election was held under an act of the General Assembly of the state of Ohio, approved April 19, 1904 (Yol. 97, page 87, Ohio Laws), known as the Brannock Law, in a district in the city of Springfield, commonly; known as the “fair ground district.”

<p>The defendant demurs to the petition upon the ground that it does not state a cause of action against the defendant.</p>

The defendant having given bond to stay execution on the plaintiff’s judgment, pending proceedings in error, and the plaintiff desiring to have execution issue at once and collect his judgment, offers a bond for $2,400, with several most reputable and responsible individuals as sureties.

In this action the plaintiff seeks an injunction restraining the defendant from the maintenance and operation of a railway track in Ludlow street, and that it be ordered to remove all construction placed in said street by it; that defendant has constructed a railway track in the center of said street (which is thirty-three feet wide) without having acquired any rights from plaintiff or by statute and against his consent and protest; that said track is to be used for the…

<p>DISQUALIFICATION OF A JUDGE.</p> <p>Prejudice or Bias — On the Part of a Trial Judge — Becomes a Ground of Disqualification, When — Affidavit Charging — /What Must he Averred — Evidence Irrelevant — Rumors not Sufficient — But Constitute Impertinent and Scandalous Averments.</p> <p>1. It is a matter of doubt whether bias or prejudice on the part of the trial judge is a ground of disqualification in the common pleas and the superior courts.</p> <p>2. In an affidavit charging bias or prejudice against a judge as a ■ ground of disqualification, bias or prejudice should be averred as a fact.</p> <p>3. To allege in the affidavit the evidence which establishes the disqualification is to allege irrevelant matter, which is in the legal sense impertinent, and where such allegations are based upon “rumor,” they constitute not only impertinent but scandalous matter.</p>

Mary O’Brien died April 13, 1902, testate. She devised certain real estate to Robert O’Brien in trust, for the use and benefit of her grandchildren until they attained the age of twenty-five years. The trustee was directed to “pay all taxes, charges and assessments that may be levied against said premises during said term, ’ ’ and pay the balance of the income after the deducting other necessary expenses in the manner directed by the will for the benefit of the grandchildren.

Henry Yon Phul died July 14, 1892, leaving a last will and testament executed prior to April 1 of that year, in which he made, among others, the following devise: “Item 6.

The question presented in this ease is to determine the property rights and interest in the real estate sought to be partitioned of Charles F. Buehler, one of the devisees named in the will of Ferdinand Buehler, deceased. It is a generally accepted rule that courts favor an equal distribution of an estate between children of the same blood as the parent from whom the estate descended.

In this case I may say both sides have filed motions for a new-trial. The defendant apparently relied upon the legal questions raised and decided upon the trial; while the plaintiff’s contention is that the verdict is against the evidence as to the amount of the recovery.

<p>TWIN WILLS.</p> <p>Wills — Where by Husband and Wife and Joint or Twin — Mutuality of Agreement to Make — Sufficiency of Evidence as to, Where Oral— Statute of Frauds and of Limitations — Agreement may Be Revoked, How — But Can Not be Annulled on Account of the Loss of One of the Wills, When.</p> <p>1. An oral compact to make mutual wills having been established by sufficient evidence, an adequate consideration appearing, and the parties having complied with the legal requirements in other respects, the wills speak for themselves.</p> <p>2. The bar of the statute does not run from the date of such a compact, inasmuch as it can not be consummated until the death of the survivor.</p> <p>3. After the death of either party the survivor can not revoke the compact, but equity will enforce it.</p> <p>4. And where the will of the survivor can not be found after her death, its provisions will be carried out, if there is no question as to its exact contents, or as to the execution of mutual wills, or the adequacy of the consideration to the survivor:</p>

The case is submitted on the pleadings, the evidence and arguments of counsel. The question here presented is, whether the defendant, Weisman, who as purchaser of certain real estate from Stevenson, and who, as a part of the consideration, assumed and agreed to pay the mortgage indebtedness thereon, is released from said liability.

<p>MODE OF USE OF STREETS BY TELEPHONE COMPANIES.</p> <p>Jurisdiction of Probate Court — In the Granting of Telephone Franchises — May Order Wires Underground — Section 3461 not Dependent upon any Other Section — And Should be Construed with Reference to Public Convenience.</p> <p>Section 3461 alone governs in the matter of the fixing by the probate court of the mode of use of the streets of a municipality by a telephone company and empowers the court to authorize the laying of conduits, where that method of construction will result in the least inconvenience to the public, and reduce the burden upon the street to the minimum.</p>

This case comes before the court upon a motion of the plaintiff, who, by new counsel, asks the court to retax the costs heretofore allowed, his former attorney in this case, and the fees also allowed to the attorneys for the defendants herein.

<p>On July 31, 1904, a petition was filed with me as a judge of the court of common pleas of this county, asking me to order an election under the provisions of the Brannock Local Option Law (so-called), 97 O. L.,'87. It is conceded that the original, petition consisting of 56 sheets, each having a printed head, identical in terms and describing the same district, contained 490 signatures, and that at least 920 votes were cast in the district at the last general election. On receiving the petition I announced through the press that I should hold the petition until August 8, 1904, before determining the question as to ordering an election. In the meantime all parties interested have, been given reasonable access to the petition, through copies furnished or actual inspection, and a full hearing has been given to persons desiring to be heard in support of or in opposition to the ordering of an election as asked. Although not partaking of the character of a formal hearing, the questions presented here have been so fully discussed and. are of such interest and importance to a proper understanding of the law in question and the involved rights -of the citizens that a fuller statement of my conclusions may be proper than would be justified in a matter of less importance.</p>

<p>In the matter of thé contempt of S. M. Fronizer et al.</p>

The city council .of the city of Columbus, Ohio, duly passed an ordinance, known as No. 21,367, which provides in substance for the regulation and licensing of persons, firms, corporations or their officers and agents who sell, hawk or peddle goods or wares, vegetables, fruits, etc., on the streets and alleys of said city.

(1). Suit is brought by the plaintiff in his capacity of taxpayer under the statute in that behalf, to restrain operation of a contract entered into by and between the “board of trustees commissioners of water 'works ’ ’ in behalf of the city of Cincinnati, on the one part, and the Cincinnati, Georgetown & Portsmouth Railroad Company, on the other, on December 10, 1901.

In ease No. 88148, entitled Theodore Bramley v. The Village of Euclid, the same being an error proceeding, the facts appear to be that Theodore Bramley was convicted in the mayor’s court of that village under an affidavit that averred that Theodore Bramley did, “on the first day of the week, commonly called Sunday, allow to remain open his place where, upon other days, intoxicating liquors are commonly sold.” The petitioner complains : First, that the village of Euclid had…

Plaintiff alleges that he was in the employ of the Standard Oil Co. from April, 1894, until June, 1902, as the driver of an oil wagon on a certain oil route in this city, receiving therefor $15 a week; that defendant entered into a further contract with the plaintiff, directing him to hold himself out as the owner of said oil route, and place his name as owner on said wagon, he having been for years the driver for the original owner, J. W. Austin, who had sold out to the…

The relator, The German American Publishing & Printing Company, a corporation, engaged in printing and publishing a newspaper printed in the German language and of general circulation in the city of Columbus and in the county of Franklin, brought this action to obtain a writ of mandamus to compel the defendant, the director of accounts of said city, to draw and issue to the relator a warrant on the treasurer of said city for the sum of three hundred and forty-six dollars…

The defendants have filed a demurrer in both causes of action stated in the petition. After a careful examination of the questions raised by this demurrer, I am of opinion the demurrer must be overruled.

This is an action brought by plaintiff to recover from the defendant six thousand one hundred and thirty dollars, which plaintiff alleges was obtained from it by reason of certain false representations. It appears from the amended petition that defendant wrote to plaintiff setting out that it owned and offered for sale six thousand dollars five per cent.

On the first of October, 1880, the plaintiff executed a mortgage to the defendant, A. S. Winslow, and to Stanley Matthews (then in life, but now deceased) its certain mortgage or. deed of trust, upon its property to secure the payment of coupon bonds to the amount of $300,000 bearing date October 1, 1880.

The question presented is as to the correctness of the record of this court to show that the entry, which was marked filed on the third day of July, 1903, was in fact filed with the clerk of this court on the second day of July, 1903.

Suit is to restrain the treasurer of Hamilton county from collecting certain taxes placed upon the tax duplicate for collection / upon certain moneys invested in real estate in this county ini behalf of the estate of Salina Cadwallader, deceased, by Morris/ M. White, as trustee.

This matter comes before the court upon the motions to discharge the attachments secured by the plaintiffs against defendants’ property.

This is a case in which the plaintiff complains that the defendant is guilty of unfair competition in trade because of certain sales of goods as “Block” goods, which are not the genuine goods of the plaintiff, but only imitations thereof.

This is an action to contest an election held under the provisions of what is commonly known as the Brannock Law. The plaintiff claims the' election to have been illegal and that it ought to be set aside and held for naught. Very little testimony was offered in the ease and that upon one point only.

This is an action brought by the plaintiff, who is a tax-payer and a resident of a district in which an election is about to be held, under what is known as the Brannoek Law, in the city of Akron,… Held: under what is known as the Brannoek Law, in the city of Akron, Ohio, and it is sought herein to enjoin the holding of such election.

<p>Heard on motion to dismiss.</p>

The petition seeks an injunction against the county commissioners of this county from carrying out a contract entered into between them and the contracting firm of Cook & Grant. The commissioners of this county duly advertised for bids for the erection and completion of a new bridge.

<p>In this ease entitled, substantially, the Village of Bay against certain officers of Dover township, a demurrer has been filed to the petition.</p>

<p>Plaintiff in error was plaintiff below, and defendant in error was defendant below.</p>

<p>STATUTORY PARTITION DENIED ON EQUITABLE GROUNDS.</p> <p>Insolvent Trustee — Of the Estate of a Decedent — Who has Appropriated More than His Share Under the Will — Creditors of the Trustee not entitled to Partition — And Title Quieted in Remaining Beneficiaries — Mortgage Executed 6y Trustee — Not a Lien for Lack of Authority to Mortgage — Taxes and Assessments.</p> <p>The trustee under a will, which made him a beneficiary of one-fourth part of the estate, appropriated more than his full interest in the estate, and thereafter becoming insolvent made an assignment for the benefit of his creditors. In a suit by the assignee for statutory partition of the estate — Held:</p> <p>1. That the appropriation by the trustee of more than his share of the estate having been made prior to the time fixed for 'distribution, no equity in the estate remained in the trustee.</p> <p>2. That an answer and cross-petition setting forth the facts is sufficient for a full determination of all the equities and rights of the parties therein.</p> <p>3. Where a trustee, who is also a cestui que trust, commits a breach of the trust, whereby a loss is occasioned, he must make good the loss for the benefit of the cestui que trustent who did not partici- ■ pate in the breach, and if he fails and' neglects so to do, and if the loss occasioned by any such breach of trust on his part is equal to or greater than his share in the trust estate, in a proper proceeding in a court of equity the title to the real estate remaining and belonging to such estate will be quieted in the innocent cestuis que trustent.</p> <p>4. That a mortgage executed by the trustee was without authority •under the will, and creates no lien upon the property, hut the mortgagee having paid delinquent taxes and assessments against the property, under the belief that it had a valid lien, is entitled to recover from the estate the amount so paid with interest thereon.</p>

Tbe plaintiff sues tbe defendant telephone and telegraph company for damages and for injunction, on the charge of establishing and maintaining over her real estate its line of wires and poles, and also for cutting off and trimming her shade trees. Annexed to the petition is a series of eleven interrogatories, to which the defendant has demurred on the ground that they are improper and not pertinent to the issues in the case.

Tbis is an action brought by the treasurer of Preble county against .the defendants, Smith and Parmerlee, as executors of the estate of L. F. Parmerlee, deceased, to recover the sum of $1,184, being taxes and penalty charged upon the tax duplicate of said county against the estate of said L. F. Parmerlee, deceased.

<p>REPAIR. OF BRIDGES.</p> <p>County Commissioners — Power of, to Repair Bridge — Situated Within Municipal Limits — But not on Ground Belonging to the City— Suit to Enjoin hy a Tax-payer — Section -860, Revised Statutes, Construed.</p> <p>A municipality has no control whatever over a bridge which is located on land belonging to the state and was built with county funds, notwithstanding said bridge is’ located within the municipal limits; and where the state is making no> claim to the structure, or objection on account of its location, injunction will not lie upon the petition of a tax-payer to its repair by the county, but, on the contrary, there is full authority conferred upon the county commissioners by Section 860 to repair said bridge.</p>

<p>JUDGMENT UNDER. FIRE INSURANCE POLICIES.</p> <p>Fire Insurance — Judgment Under One or More Policies — Amount for which Recovery may he Had — Satisfaction, Where there are One or Miore Judgments.</p> <p>1. Tbe owner of a stock of goods wbo has them insured in two different companies is entitled, in case the goods are burned, to recover a judgment for the full amount of goods destroyed, which judgment must not exceed the amount of the policy issued by each or both of said companies; and the fact that he has recovered judgment against one of the companies, is no defense in a suit by the insured against the other company.</p> <p>2. When one of said judgments and the costs of both suits have been fully paid, it operates as a satisfaction to the extent of the amount paid on the judgment as to both judgments.</p>

<p>COMPENSATION OF OFFICERS SERVING UNDER. AN INVALID LAW.</p> <p>Office and Officer — Right of a De Facto Officer to Compensation — For Service Rendered under an Invalid Laio — County Commissioners —Salaries of and Traveling Expenses of — Recovery Bach of Salary Paid under an Invalid Act — Constitutional Law — Personal as Distinguished from Official Expenses.</p> <p>1. An officer who discharges a duty enjoined upon him by an unconstitutional law, before a court of competent jurisdiction has declared the law to be unconstitutional, is protected in the discharge of that duty by the law under which he acted.</p> <p>2. Section 8976, and at least that part of Section 897 which is intended to be applicable to Franklin county, are unconstitutional and void; but money paid thereunder ,to a county commissioner -can not be recovered back, unless the amount paid to him was more than was therein provided.</p> <p>3. Section 897 makes no provision for mileage for county commissioners when traveling either within or without their own county. The provision for “necessary traveling expenses when traveling outside of the county on official business” is a provision for official as distinguished from personal expenses — for the cost of going and coming, but not for board and personal expenses.</p> <p>4. In Section 2813, providing that each member of the county board ■of equalization (composed of the auditor and county commissioners) shall be entitled to receive for each day, necessarily required in the performance of his duties, the sum of three dollars, the word “such” (county) has manifestly crept in by some error, and should be read “each,” thus making the act general in its application; and in the present act, which is an amendment and supplement of Section 2813 of the Revised Statutes of 1880, is not special, but is general in its operation, and is consequently, not unconstitutional.</p>

<p>LIABILITY OF SURETIES ON AN OFFICIAL BOND.</p> <p>Bond — Duties Imposed upon Official — Not Appropriate to His Office— Municipal Clerk Required to Collect Street Assessments — Sureties on His Bond not Liable — Where Such Collections not Accounted for — Pleading.</p> <p>1. A petition for réeovery from the sureties on an official bond need not allege a demand on the principal for payment, nor notice to the surety of the default of the principal, unless by the terms of the bond demand and notice are necessary to fix the liability of the surety.</p> <p>2. The provision found in Section 1738, Revised Statutes, to the effect that the imposition of new duties upon a municipal officer shall not operate to discharge the surety on his bond, is confined to the imposition of duties appropriate and pertinent to the office in question, and not to any or all duties which a municipal officer may be called upon to perform.</p> <p>3. The fact that a municipal council designates its clerk to collect street assessments does not make such a duty a clerical duty, and in legal contemplation is not within the undertaking of his surety for the faithful performance of his duties as clerk.</p>

This is an action brought to recover damages in the sum of $6,200, with interest at six per cent, from April 29, 1898, under a contract entered into between the parties, in the following words and figures, to-wit: “Cincinnati, O., April 29, 1898. “In the matter of the sale to W. W. and J. W. Crothers, of twenty-five shares of the stock of The Globe Register Company, April 29, 1898, and thirty-seven shares-, being sixty-two shares in all, I hereby guarantee that said stock…

The plaintiff owns property having a frontage of over one hundred feet on Sixth avenue, this city, and heretofore has been duly served with a notice by the city of Columbus to repair the sidewalk along his property on said avenue by making several changes thereon, to-wit: first, to conform to a grade now established by the city of Columbus, which necessitated the raising of the sidewalk several inches; second, to make the regulation slope from the fence to the gutter or…

In this case, Michael Gallagher, the original plaintiff, was in the employ of the defendant as a brakeman. 1 On January 19, 1900, he was severely injured in a collision. He brought an action against defendant to recover for the injuries thus sustained, alleging that said collision was due to the negligence of the defendant. After the commencement of said action, Gallagher died, as it was claimed, from said injuries.

<p>In the probate court of this county the former guardian of four minors resigned and' a new guardian was appointed. In the settlement of the former guardian’s accounts, the probate court referred this cause to the appellant here, William G. Pengelly, as a referee, he as an expert accountant to examine through all the accounts of the said former guardian by reason of their entanglements and complications, and to render a full report of his findings to the court. To this order of reference the minors excepted and objected. The referee completed his work 'and reported to the court and asked for an allowance of fees to him for his- services in the sum of fifteen hundred dollars. Upon hearing, the probate court held that the order of reference to the referee being without consent of the parties, was null and void, and that the said referee was not entitled to any allowance of fees or expenses by way of costs, upon which order the said referee gave notice of his intention to appeal and has given bond accordingly.</p>

<p>APPLICATION OF THE DIRECT INHERITANCE TAX LAW.</p> <p>Direct Inheritance Tax Law — Application of where the Decedent Died Before the passage of the Act — Conditional Legacies — Legacies Testing Immediately — Distribution—Retroactive Laws.</p> <p>1. A law will not be made retrospective in its application unless such intention clearly appears in the law itself or follows by necessary implication from the terms employed.</p> <p>2. The estates of intestates and of testates, where no condition is attached .to the legacy itself, vest upon the death of the decedent, and the control of the administrators or executors over same is merely fiduciary, and does not affect the successor’s “right to succeed to, or inherit property.”</p> <p>3. The act of April 25th, 1904 (Yol. 97, p. 398, O. L.), which provides for the taxation of the right to succeed to, or inherit property, does not apply to such vested estates when the decedent died prior to the passage of the act,' even though distribution has not been made of such estates. Hostetter et al, executors, v. State of Ohio, 5 C. C. — N. S., 337, distinguished.</p> <p>4. Whether the law applies to the estate of any decedent dying prior to the passage of the act — Quaere?</p>

On the 12th day of August last, the relator was employed by the Board of Public Service of the City of Bellefontaine to perform one day’s Work and labor with his team in repairing South Main street, at three dollars and a half; that such work was performed and by direction of the board of public service an order issued by them therefor, upon said defendant, who refused to issue his order upon the city treasury for said sum, for the sole reason that such repair work had not…

<p>WHAT CONSTITUTES PURELY PUBLIC CHARITY.</p> <p>Taxation — Exemption of Church Property Therefrom — Church Benevolences which are Purely Public Charities — Cemeteries—Priests’ Rouses and Recreation Grounds not Taxable, When — Construction of 2844 as to the Adding of Back Taxes — For Real Estate Improperly Exempted — Street Assessments.</p> <p>1. An institution which has as its primary object '.the inculcation and dissemination of religious belief, but in addition thereto dispenses charity without discrimination, is entitled to the same exemption from taxation as to property used in connection with its charities that is accorded to institutions devoted exclusively to public charity under the control of the state.</p> <p>2. A charity which is dispensed to the public, and is not limited or confined to any class of persons, is a “purely public charity” within the meaning of the Constitution.</p> <p>3. Buildings belonging to 'the Roman Catholic Church, and occupied by its bishops, priests or sextons, and not rented, or used or intended for profit, are within the meaning of the phrase “purely public charity” and exempt from taxation under the Constitution and laws of Ohio.</p> <p>4. Grounds contiguous to churches, schools and priests’ houses, used in connection therewith, or for ornamental or recreation purposes, fall within the same exemption; but vacant lots, used for or intended for other purposes, are not entitled to exemption.</p> <p>5. The exemption as to cemeteries continues after abandonment for burial purposes until all the bodies have been removed.</p> <p>6. Tinder Section 2803, simple tax should be added for each and every preceding year in which property has escaped taxation as far back as the next preceding decennial appraisement and equalization of real estate, and penalties may he added under Section 2844, but not the 5 per cent, penalty provided for in Section 1094. Street assessments are properly chargeable.</p>