Volume 24 — Ohio Nisi Prius Reports, New Series

<p>CONTINUANCES BY A MAGISTRATE IN PERSECUTIONS UNDER THE CRABBE ACT.</p> <p>Criminal Laxo — Time of Trial Before a Justice of the Peace — Not Limited xmder the CraVbe Act to Pour Lays.</p> <p>In a prosecution under tbe Crabbe act, a justice of the peace or mayor is not controlled by the general statutes relating to arrest, examination and bail, which limit the period an accused person can be detained to four days, but the matter of continuance and time of trial is within the sound discretion of the magistrate, the same as in the probate court or court of common pleas.</p>

<p>POSSESSION WITH GUILTY INTENT OF ARTICLES CAPABLE OF BEING CONVERTED INTO A STILL.</p> <p>Crabbe Act — Dealer Offering for Sale with Guilty Intent — Articles Capable of being Assembled and Used as a Still — Answerable Under this Act — Burden of Proof.</p> <p>1. If one with t'he ultimate intent of producing property designed for the manufacture of intoxicating liquor, assembles together articles which may have been originally manufactured for an innocent purpose, and has in his possession such assembled articles, with the guilty purpose of selling them to one intending to use them in violation of law, such a person would fall within the provisions of Section 6412-16, 108 O. L. Part 2, 1182, even though each of the articles so assembled might in itself be used for an innocent purpose.</p> <p>2. Where one has in his possession property evidently designed, and by him intended for the manufacture of intoxicating liquor, he falls within the provisions of the act, even though the property may initself not be a complete apparatus, and even though the may in itself not be a complete apparatus, and even though the one posessing it does not intend to use it himself for the manufacture of intoxicating liquors, but intends to sell it to others for that purpose.</p> <p>3. The question of intent is always a fact to be proved, so that' a person who may possess such articles for an innocent purpose, would be in no danger of conviction. The purpose for which he has possession of the property, or his guilty knowledge, is the essence of the offense.</p>

<p>BEQUEST FOR AN ANNEX TO A CHURCH EXEMPT FROM INHERITANCE TAX.</p> <p>Taxation — Burden of Proof in an Inheritance Tax Proceeding — Gift to Promote Physical ancl Religious Training for Young People— For the Purpose only of Public Charity.</p> <p>1. In an inheritance tax proceeding the burden of proof is on the state to show that a gift was made in contemplation of death.</p> <p>2. In an. inheritance tax proceeding the burden of proof is on the state to show that a gift was intended to take effect in possession or enjoyment at the death of the donor.</p> <p>3. A gift to the trustees of a church of a sum of.money “to be used for the construction, equipping, maintaining and repairing a physical training and religious educational annex — to be used for the physical and religious training of the young people of said church, and for the young people in the vicinity of Bryan — and to be used as the home of the Boy Scout Organization of “Bryan” is a gift to or for the use ot an institution for purposes mly of public charity carried on within the state, and is exempt from the inheritance tax.</p> <p>* Affirmed without opinion by the Court of Appeals, October 22, 1921 Rehearing refused in the Court of Appeals, November 9, 1921. Nc motion to certify record filed in the Supreme Court.</p>

<p>APPOINTMENT OF GUARDIANS OF ESTATES.</p> <p>Guardian and Ward — Appeal from Order Appointing Guardian of Estate — Motives of Those Ashing Appointment for an Aged Person vM he Inquired into — Jurisdiction of Probate Court where Domicile of Ward is Changed.</p> <p>1. On appeal of an application for appointment of a guardian, the entire case goes up, and gives the court jurisdiction to determine that a guardian is required for the estate only, and to make such an appointment or ,to direct that it be made. ,</p> <p>2. The motives of persons applying for appointment of a guardian for an aged man will be inquired into, and the peaceful enjoyment by him of freedom in person and estate will not be interfered with, unless his best interests require it.</p> <p>3. Where a guardian of the estate, but not of the person of such a man. has been appointed, and he afterward in good faith and while competent so to do changes his residence-to another jurisdiction, the probate court of the county where the appointment was made looses jurisdiction over him as soon as such change of residence</p>

<p>LIFE INSURANCE POLICIES CONTAINING A FACILITY PAYMENT CLAUSE.</p> <p>Life Insurance — Construction of a Facility Payment Clause — Wife has no such Vested Interest as Entitles Her to Enforce Payment— Suit, if Brought, Must be by the Administrator.</p> <p>A facility payment clause contained in a life insurance policy reading: “The Company may make any payment or grant any non-forfeiture privilege provided herein to the executor or administrator, husband or -wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this policy have been satisfied,” does not give the wife of the insured as such, a vested interest entitling .her to enforce payment upon said policy. If not paid to one of the classes described therein such suit can only be maintained by the executor or administrator of the insured.</p>

<p>DOCTRINE OF RESPONDEAT SUPERIOR APPLIES TO A POLICEMAN.</p> <p>Municipal Corporations — Police Officers in the Same Class as h'iremen —City not Exempt from Liability for Their Tortuous Acts — Their Relation to the Municipality that of Employees.</p> <p>The exemption which relieves a municipality from liability for tortuous acts of some of its officers does not apply to the case of a policeman, who sustains the relation of employee only and as to whose acts the doctrine of respondeat superior applies. Demurrer, therefore does not lie to the petition in an action against the city for damages, wherein it is alleged that the policeman complained of wilfully, wantonly, recklessly and negligently, while on duty as a police officer and acting under color of office, inflicted injury to the plaintiff by shooting him.</p>

<p>LIABILITY OF RAILWAY COMPANIES FOR THE ACTS OF THEIR POLICEMEN.</p> <p>Police Officers — Those Employed by Railway Companies — Invested with the Same Duties and Charged with the Same Liability as Municipal Policemen — LioMUOy of Officers of a Railway Company Distinguished from that of the Company Itself></p> <p>Persons commissioned by the Governor to “act as policemen for and on the premises of such railroad or elsewhere, when directly in the discharge of their duties for such railroad,” possess an4 exercise the powers and are subject to the liabilities, while in the discharge of the duties for which they were appointed, as members of the police department of a municipality. The relation of a railroad company to its policemen is the same as that ’ of a municipality 'to policemen in its employ, and the test of liability of a railway company for an alleged wrongful arrest by one of -its policemen is the same as that of a municipality 'for an arrest similarly made by police in its employ.</p>

<p>FIXING THE DATE FOR TRIAL IS A JUDICIAL FUNCTION.</p> <p>Constitutional Laio — Provision of the Enforcement of Prohibition Statute — Limiting Time for Hearing Cases on Review Held Invadid.</p> <p>1. A ease being in a court, the fixing of the time when the court - will hear the case is a judicial function. The Legislature cannot by law fix the time within which a case shall he heard by the courts.</p> <p>2. That clause of Section 6212-20 of the General Code of Ohio, which provides “and the case shall be heard by such reviewing court within not more than thirty court days after filing such petition in error”, is unconstitutional and void, being an attempt by the Legislature to encroach upon the rights of the judicial department, in violation of Art. II See. 32, and of Art. IY Sec. 1 of the Constitution of the State of Ohio.</p>

<p>THE LAW OF ALIENATION AND PERPETUITIES IN OHIO.</p> <p>Wills — Intent of Testator Held to fie Discoverable in Spite of his Mental Peculiarities — Common Law Buie as to Perpetuities not in Force in Ohio.</p> <p>1. The will in question, while showing some eccentricity on .the part of the testator, is sufficiently clear and explicit to indicate • an intention on his part to devise his real estate to his widow and children for life, the remainder to go to his grandchildren as a class.</p> <p>2. This disposition is not affected by the provision that possession by the grandchildren is postponed until they reach the age of thirty years, and then only on condition that they qualify as distributees to a designated standard of character and habits of life. The interest of grandchildren, then in being and who might bo thereafter born, vested at the death of the testator, subject to divestment in the case of any who might fail to qualify as distributees.</p> <p>3. The provision for a sale of the real estate so devised and a division of the proceeds among the favored grandchildren, does not render the bequest one of money or personal property which would be rendered void by the common law rule as to aleniation and perpetuities. ></p>

<p>ESTOPPEL AGAINST REVERSAL OF POSITION.</p> <p>Service by Publication — May not be set Aside by the Plaintiff Procuring It. — When He Finds that Commencement of the Suit was Against His Interest.</p> <p>One who has procured service by publication and has thereafter successfully resisted a motion to set the service aside, but later discovers that a claim set up against him in an answer and cross-■petition would have been barred by the statute of limitations had suit not been begun when it was, is estopped from reversing his position and then asserting that service by publication was not warranted under the statute in that case.</p>

<p>CONSTRUCTION OF A COKE CONTRACT ENTERED INTO DURING GOVERNMENT CONTROL.</p> <p>Contract for Sale and Purchase of Colee — Price to he Adjusted hy Mutual Agreement In Case of Cessation of Government Control — Failure of Parties to Reach an Agreement — Contract Price Held Still in Force.</p> <p>To a written contract for the sale of coke at an agreed price was attached the following rider. “The price named in this contract is not in excess of that fixed by the U. S. government and should the U. S. government cease to regulate .prices during the life of this contract, then the price of coke covered by this contract but not then delivered shall he subject to a revision to a figure to be mutually agreed upon hy purchaser and seller.”</p> <p>Upon cessation of Government control the parties were unable to agree upon a new price.</p> <p>Held — the contract price continued.</p>

<p>TITLE TO “JOURNAL ISLAND.”</p> <p>Adverse Possession — Island, in Canal Reservoir Claimed under Lease from the State — Actual and Continuous Possession for Required Time not Shown 6y Lessees — Title Quieted, in Claimants under a Government Patent.</p> <p>Possession by lessees from the state c.f “Journal Island,” a tract of land in the old Licking canal reservoir, now known as Buckeye Lake, was not of such a character as to cause title to the said island to ripen in the lessees by reason of adverse possession. On the contrary the claim to the island, based on a patent issued by • the United States Government in 1857, constitutes the legal And .valid title thereto.</p>

<p>ASSESSMENT FOR A MUNICIPAL LIGHTING SYSTEM.</p> <p>Municipal Corporations — Special Assessments — Construction of the Tioenty Day Period — Preliminary Ordinances — Service of the Required Notices — Referendum Period — Installation of an Ornamental Boulevard Lighting System — Statutes Reconciled.</p> <p>1 The twenty days required before levying assessments for improve-. ments by a village council does not prevent the adoption of the preliminary ordinances before the expiration of the twenty day period, provided no contracts are made or assessments actually levied until after the lapse of the twenty day period.</p> <p>2. A village council may pass its preliminary ordinances and serve the required notices without waiting thirty days for a referendum petition to be filed, and if such petition be not filed within' the thirty days the ordinances are valid.</p> <p>3. Joining in a protest by a taxpayer before the assessment is finally levied against his property is an acknowledgment of notice and he cannot deny it afterwards.</p> <p>4. Section 3812 and related sections of the General Code authorize the installation of a boulevard or ornamental system of lighting, and the subsequent passage of 3842-1, 3842-2 and 3842-3, being in pari materia, does not deprive the council of that authority, but provides an additional method of procedure.</p>

<p>RIPARIAN RIGHTS ON ORCHARD ISLAND.</p> <p>Rights of Owner of a Lot Running to the Water Line of Island in Canal Reservoir — As Against Lessee from the State of a Shore Strip.</p> <p>1. Where the state of Ohio acquired land in fee for the purpose of building a reservoir in which to store water as a feeder to the Miami canal, and in so impounding the water a high point in the lands so acquired was surrounded by the. water, an “island” is thus formed.</p> <p>2. Where such an “island” is conveyed by the state, by its proper agents, by no other description than “Orchard Island,” situate in Logan County Reservoir, containing 83.8? acres, and giving the survey numbers and without restriction or reservation, the conveyance is to ordinary low water mark and riparian rights pass to grantee and his successors in title. It being within the power of the grantor to have made restrictions or reservation in the instrument, the doubtful points are construed most strongly in favor of the grantee.</p> <p>3. Where an “island” is platted into lots,' streets, parks, etc., and the lots fronting on the water are shown on the plat without any space or margin between the lot and low-water mark, the lot owner in the absence of restriction to the contrary, takes title to the land fronting on the lake to ordinary low water mark.</p> <p>•!. Injunction will lie against one who attempts to take possession and occupy the shore of a platted lot fronting on Indian Lake, on Orchard Island, for his own use and purpose, by virtue of a lease granted from the state from low water mark to a countour line run above the level of the wasteweir of the reservoir, passing through or across such lot.</p> <p>5. One taking title to a lot on Orchard Island, fronting on Indian Lake, takes it subject by implication to an easement arising by necessity occasioned by the rise and fall or flow of the waters In the reservoir.</p>

<p>FORFEITURE OF AUTOMOBILE USED ^TRANSPORTATION OF LIQUOR.</p> <p>Things Used as Facilities in the Violation of Law — And Subject to Forfeiture Because'so Used — Not Subject to Replevin by an Owner Innocent of such Use, When — Status of Owner in the Proceeding for Forfeiture — Search and Seizure of Forbidden Things Distinguished fr’om Seizure of Private Papers for Use as Evidence Against the Owner.</p> <p>An automobile seized while being used in the unlawful transportation of liquor, and held by officers of the law under a proceeding in rem for its forfeiture and sale, instituted in another court of competent jurisdiction under the provisions of Section 6212-43, is not subject to replevin.</p>

<p>TRUST CREATED TO AVOID A GUARDIANSHIP.</p> <p>Trust Deed of an Aged Woman Set Aside — Inducement Found to have leen Fear of a Guardianship — Competency of Evidence.</p> <p>The plaintiff, when approaching eighty years of age and exhibiting eccentricities and some degree of senility, executed a deed conveying all of her estate, amounting to $65,000, to a trustee upon whom the broadest powers were conferred without bond, the estate to pass at her death to her heirs and devisees. The making of the deed was induced by the hope of thus preventing the carrying out of an intimation, made in her hearing at a conference regarding her affairs (at which the probate judge and a number of attorneys were present), that the case was probably one for the appointing of a guardian of person and state. Soon after thus executing the trust, a suit was filed by her to set the deed aside and terminate the trust. Thereafter she was placed under guardianship. Held:</p> <p>1. That the testimony of the attorney, who acted as a witness to the deed, and also as notary, was competent when limited to the mental condition of the grantor at the time the document was executed and to the fact of its having been read and explained to her.</p> <p>2. The statement of a physician on the witness stand, that at the time of which he was speaking (which was a year after execution of the de d) she was of unsound mind and had been for ten years, raised a question of the weight rather than competency of his testimony.</p> <p>3. That in view of all the circumstances of the case, the prayer of the petition should be granted and the petitioner and her estate left under the jurisdiction of the probate court.</p>

<p>AS TO GIVING NOTICE OF DISPUTED SUB-CONTRACTOR’S LIEN.</p> <p>Injunction — Requirement as to the Bond — Plaintiff Must Become an Obligor Thereon — Failure to Preserve Rights Under the Mechanics’ Lien Law.</p> <p>1. In the absence of malice or want of probable cause for the sueing out of an injunction, no liability arises on the bond unless the party obtaining the order has become one of the obligors, and in the absence of compliance with this prerequisite to a valid bond no restraining order can issue.</p> <p>2. The pendency of negotiations between the principal and a subcontractor regarding a disputed claim, does not relieve the principal contractor from compliance with the statutory requirement as to giving written notice, to the owner, of the dispute with reference to the amount due; and failure to give such notice makes it the duty of the owner to pay the subcontractor out of any money which may be owing to the principal contractor.</p>

<p>OHIO DITCH LAWS UNCONSTITUTIONAL.</p> <p>1. The act passed June 19, 1919, entitled, “An act to codify, consolidate, and clarify the ditch laws of the state, etc.,” 108 O. L., 926, is unconstitutional, toeing in contravention of article one, section nineteen, for the following reasons:</p> <p>a. It authorizes the taking of private property without reference to the public welfare, and without any determination that the public welfare requires it.</p> <p>b. It authorizes the taking of private property for a ditch without first making compensation for the land taken.</p> <p>c. It authorizes a deduction from the compensation for the benefits to the property to be taken by assessing on the land benefitted the compensation and damages paid, thereby reducing the compensation by the amount so levied.</p> <p>cl. It authorizes the assessing of the costs of the litigation in determining the amount of compensation and damages sustained by any tract of land on the land benefitted, thereby reducing the compen- ■ sation by the amount of the costs so assessed.</p> <p>e. It authorizes the assessing on the land benefitted the costs adjudged against the county in any litigation growing out of the ditch proceeding, without determining that such litigation was for the benefit of those assessed.</p> <p>f. In so far as it provides for the assessing of the cost of cleaning a ditch in proportion to the cost of the original construction thereof, it is unconstitutional in that it attempts to levy assessments not according to the benefits to be derived.</p> <p>2. Said act provides for an appeal from the judgment of the court of common pleas to an official board of appeals composed of the superintendent of public works, the state highway commissioner, and the dean of the engineering department of the Ohio State University, and is in contravention of article four, section one, and of article four, section ten, of the Constitution in that it attempts to confer judicial power upon administrative officers not elected by the people.</p> <p>3. This act is in contravention of section sixteen, article one of the Constitution of Ohio, and the Fourteenth Amendment to the Constitution of the United States, in that in a ditch proceedings filed by the board of county commissioners in the court of common pleas, it attempts to place upon the petitioners for the ditch, the board of county commissioners, the power to determine controversies as to the amount of assessments; that is, it gives to the party asking for the ditch improvement the power to determine the amount to be paid by way of assessments for the construction of the improvement by other parties, thereby determining the amount to be paid in its own case.</p> <p>4. The ditch law enacted June 19, 1919, being unconstitutional, the repealing clause thereof is a nullity, and the ditcn laws attempted to be repealed thereby are in force.</p> <p>5. No facts showing an estoppel being found, the act passed April 29, 1921, in so far as it attempts to make valid the acts under the unconstitutional act of June 19, 1919, is without effect.</p> <p>6. On appeal from an order made by the board of county commissioners granting a ditch, the board of county commissioners is not a proper party in the court to which the appeal is taken.</p> <p>7. The construction of branches to a ditch, which branches are not mentioned in the petition, and were not granted by the board of county commissioners, and of which the course and termini were not determined, no finding having been made by said board that the branches are necessary or will be conducive to the public welfare will be enjoined; and the assessments levied threrefor will be enjoined.</p> <p>8. On a petition being filed to deepen a ditch, the board of county commissioners is without power to locate as a branch thereof a new ditch in a water course through which no ditch had theretofore been located or constructed.</p> <p>9. The assessments levied for a ditch must not exceed the cost thereof, and the board of county commissioners is without authority to levy assessments for the estimated cost of the ditch when the estimated cost of the ditch exceeds the amount for which the ditch sold, and the collection of the excess will be enjoined.</p> <p>10. Assessments can be levied only for benefits. Land that lies so high that the flow of the water from the land is not accelerated by the ditch improvement can not be assessed; land from which the flow of water is accelerated by the ditch improvement may be assessed; if a ditch improvement takes the water away quicker or prevents the water from rising so high, then the land may be benefitted by such improvement back to the point up the course of the water flowing to the improvement where a profile of a ditch, with sufficient fall to' cause the water to flow to the surface of the high water before the improvement, intersects the bottom of a ditch deep enough to drain the land at that point.</p> <p>11. The outer limit of benefits to land to be assessed for the improvement of a ditch is the irregular line connecting the points back from the ditch which have sufficient elevation above the high water before the improvement is made so that a profile of a ditch from ■ any of these points will have a sufficient gradient for the flow of the water from that point to the high water level of the improvement where the drainage from the point enters the improvement. Land above that point can not be lawfully assessed; land below that point may be benefitted inversely to its elevation above the bottom of the proposed improvement at the place where its drainage enters the improvement.</p>

<p>ADJUSTMENT OF THE COMPLICATED ACCOUNTS OF A DECEASED BROKER.</p> <p>Stock Bought through a Broker — Becomes Property of the Purchaser at Time of Purchase — Relation of Customer and Broker that of Pledgor and Pledgee — Rights Acquired "by Administrator of the Broker — Stocks Pledged with the Broker and Repledged by Him— Rights of Sub-pledgees of Stocks — Each Fund Treated Separately— Customer must Trace his Securities — Right of Broker to Re-pledge Stocks Bought on Margin — Repledging of Stocks "Wrongful, when— Customer upon Payment of his Debt to Broker may Recover Stocks up on Margin and not Sold — Claim against Estate of Deceased Broker by his Widow — Class A Claimants and Class B Claimants— Apportionment of Costs and Expenses.</p> <p>1. “Where a broker buys stock on the exchange upon the order of a customer, the latter is the owner of the stock from the time of the purchase, whether purchased in his name or not, and he has the right to the possession thereof on demand, subject to the payment to the broker for advances, if any, and commissions, as to which the customer is the debtor of the broker; in other words, the legal relation of the customer and broker is that of pledgor and pledgee.” (Lamprecht v. State, 84 O. S., 32.)</p> <p>2. “Upon such demand, the broker need not deliver the identical stock purchased for the customer, but it is sufficient to deliver the same number of shares of the same kind and value, and a failure to do so on demand may amount to a conversion of the stock and under some circumstances to a fraudulent conversion.” (Lamprecht v. State, lb.)</p> <p>3. Upon the death of the broker, his administrator acquires uo other or greater interest .in such stock purchased for the customer than the broker had. Such administrator is entitled to possession of all the assets of the estate of the broker for the purposes of administration and distribution, but he is entitled to nothing other than assets of the decedent.</p> <p>4. The administrator’s duty is to collect debit balances from the customer. When the customer has paid to the administrator what he owed the broker at his death, the administrator is no longer concerned with the stock of the customer, and any special property which the broker or the administrator had in the same to secure such indebtedness is entirely extinguished and such customer is entitled to the pledged stock.</p> <p>5. The administrator is entitled to retain possessioon of securities of customers whose debit balances exceed the value of the securities of such customers on hand; also any securities of customers which are not claimed.</p> <p>6. If the broker at his death had in his possession (and therefore not repledged) stocks of a customer who was not indebted to the broker, the customer had the right, upon demand, to the immediate possession of such stocks.</p> <p>7. As to any particular security in the broker’s hands at death, if there is sufficient of such to satisfy all claimants to such kind of security, each is entitled to have his own regardless of the matter of identification; or if there are several claimants to a particular kind of security not identified but there is not enough of such particular security in the administrator’s hands to satisfy all claimants to such security, then the claimants are to share in the same proportionately. (Liberty Bonds.)</p> <p>8. Where the broker had re-pledged stocks of customers in his possession with several sub-pledgees, it was the right of the latter to satisfy their claims out of such stocks' regardless of the right of the broker as between himself and customers to re-pledge said stocks. After the satisfaction of the sub-pledgees, what remained of such properties in their hands were funds for liquidation and distribution amongst the customers whose stocks or the proceeds thereof were in such fund. Each fund must be treated separately from all others.</p> <p>9. In order that a particular customer may make any claim to any securities in any such fund or the proceeds thereof, he must trace his securities into such fund. The administrator has no interest in such funds except as to costs and expenses to be hereafter considered, and any surplus after the customers participating therein are satisfied. In no event may a customer recover from any fund or funds more than his full claim.</p> <p>10. If the securities of a particular customer so re-pledged by the broker were not sold by the sub-pledgee to satisfy its claim, the customer has the same rights to recover such securities as he would have had had the securities not been re-pledged by the broker, and had been found in his possession at death, subject to the obligation of the customer to contribute to the loss.</p> <p>11. As to the right of the broker to re-pledge stocks of customers the contract, course of business, or customs of the business must be looked to as guides.</p> <p>12. In the absence of a contract not to re-pledge such stocks, it is generally conceded that where a customer deals with a broker on margin, the latter has the right to re-pledge the stocks purchased for Ihe customer, but a contract not to re-pledge will be enforced.</p> <p>13. A re-piedge of such stocks is wrongful if the stocks were held by the broker for safe keeping, or if there were no transaction pending ■between the customer and the broker, or if the stocks were wholly paid for; but a customer may by contract or conduct authorize such re-pledge.</p> <p>14. It seems that there is no difference as to the right to re-pledge stocks, between those purchased by the broker on margin, and stocks deposited by the customer with the broker as collateral security to customer’s trading account. (Noyes case).</p> <p>15. If the re-pledge of a customer’s stock was wrongful he is given a preference, and is entitled to recover his securities or have a lien upon said fund if the securities have been sold, without contribution to the loss. If the fund is insufficient to satisfy all preferred customers (known as Class A customers) there must be contribution amongst them whether their stocks were sold or not.</p> <p>16. If the re-pledge of such stocks' of customers was rightful, such customers (known as Class B customers) are entitled to possession of their stocks found in such particular fund upon paying to the administrator the amount of their debit balances and contributing their proportionate share to the burden of the loan, or loss sustained by reason of the loan.</p> <p>17. For purposes of liquidation and contribution the securities of the various funds should be valued as of the date of broker’s death and interest charged on customers’ accounts to that date.</p> <p>18. The increment of any security follows the security.</p> <p>19. A broker doing business as an individual in the firm name of A and P authorized certain persons to sign checks on his bank account in such firm name, adding the individual signature of such persons. The bank knew that P was dead, and was informed of the broker’s death the day after it occurred. Thereafter checks on said account dated before the broker’s death, signed as above stated, but with the abbreviation “Atty.” added were presented to the bank, paid by it and charged to the broker’s account. Held: The authority to pay such checks ceased upon the death of the broker, and the administrator is entitled to recover the sum of the checks so paid from the bank. (Fourth National Bank case.)</p> <p>20. Where a customer’s stock was wrongfully re-pledged by the broker, and sold by the re-pledgee and the proceeds applied to the account o£ the broker before his death, so that at the time of the death neither the stock nor the proceeds remained in the sub-pledgee’s hands, the customer is not entitled to participate in any fund which may be in such sub-pledgee’s hands. (Beneker’s case.)</p> <p>21. M was a margin trader with the broker who had purchased a certain stock and re-pledged the same. At the death of the broker there was found among his effects a certain other stock which M had deposited as collateral security to protect the said purchase and which was not re-pledged; the proper margin was maintained at all times. Held,:M was entitled to recover said stock so deposited upon payment of his debit balance to the administrator without contribution to costs or expenses. (Munson’s case.)</p> <p>22. Where a customer during the life of the broker ordered certain stock which was purchased for him and charged to his account, and the stock retained in the broker’s possession, and after the latter’s death the customer paid in full for the stock to persons who conducted the said business, and the money paid for the stock was deposited in the account of said brokerage business, which afterwards passed into the hands of the administrator, the customer is' entitled to receive the stock from the administrator. (Willsey’s case.)</p> <p>23. Evidence as to the claim by the son of the broker that he is the owner of a certificate of membership in the Cincinnati Stock Exchange considered, and held insufficient to support said claim, and held further that the proceeds of the same are assets of the estate to be paid to the admisistrator.</p> <p>24. The wife of the deceased broker is a competent witness to testify in support of the claim of her son to said certificate, though she also has an independent claim against the administrator.</p> <p>25. Husband and wife are competent to testify to acts or communications passing between them, if done or made in the known presence or hearing of a third person competent to be a witness; they may testify to the known presence of such third person.</p> <p>26. A membership in the New York Stock Exchange although not evidenced by certificate or any document other than a letter from such exchange, is personal property which may be pledged, and a lien thereby created may be foreclosed and the seat sold subject to the constitution of the association. Evidence as to the alleged pledge by the broker to his wife examined and held sufficient to sustain such pledge and lien.</p> <p>27. Where the widow of the broker asserts against the administrator a claim against said estate and is called as a witness on her own behalf and objection to her competency as a witness is made and sustained, and the administrator then proceeds to “cross-examine” her as to certain details of her claim, such cross-examination is a waiver of her incompetency and she may thereupon testify generally concerning her claim subject to the rule which excludes testimony as to privileged communications between her and her husband.</p> <p>28. Under General Code 11495, paragraph 1, the claimant of such lien on said seat is competent to testify to facts occurring after the death of the broker.</p> <p>29. The balance of the proceeds of the New York Stock Exchange seat remaining after discharging the lien of the widow is assets of the estate payable to the administrator, subject to rights of members of the exchange under its constitution.</p> <p>30. The costs and expenses of this proceeding and other necessary expenses in preparing accounts of customers, in re-stating accounts and in other ways, should be paid according to the following rule: “These expenses should first come out of. the general estate. If that is not sufficient then they should come pro rata out of the securities or their proceeds available to class B claimants. If not satisfied out of class B claimants or proceeds, then the balance, if any, for this purpose should be apportioned pro rata among class A claimants.</p>

<p>LIABILITY ON A RECEIVER’S BOND.</p> <p>Liability for a Debt Due to an Insolvent — Where the Debtor has been Appointed Receiver of the Insolvent — Action Lies against the Surety of the Receiver.</p> <p>■Where' a debtor to a person or corporation is appointed receiver of such person or corporation, the debt becomes by operation of law a chose in possession, failure to account for which is a breach of the bond of the receiver and will support an action thereon against both the principal and the surety.</p>

<p>COVENANTS AGAINST INCUMBRANCES.</p> <p>Lien of a Street Assessment — Constitutes a Breach of .a Covenant against Inoumbrance — Nominal Damages only are Recoverable Unless the inoumbrance has■ been Extinguished — ‘Covenantor upon Paying such an Assessment Becomes Subrogated to the Lien of the City.</p> <p>1. A covenant against incumbrances is broken at the time of the delivery of a deed containing such covenant, if the property described therein is subject to the lien of a street assessment.</p> <p>2. The general rule is that the covenantee can not recover more than nominal damages upon the breach of a covenant against incumbrances without removing or extinguishing the incumbrance or proving that the incumbrance substantially interferes with the use and enjoyment of the property.</p> <p>3. Where property conveyed free from incumbrances is in fact incumbered, by the lien of a street assessment payable in ten annual installments of which only the first installment has been paid, but the covenantee conveyed such land to a purchaser who expressly assumed to pay such assessment as part of the purchase price, such agreement will be considered as a covenant to extinguish the incumbrance and, the covenantee having reduced the purchase price by the amount of such assessment may recover the same as damages against the covenantor.</p> <p>4. In such a case if the covenantor, having paid the amount of such assessment to his covenantee as damages for breach of his covenant against incumbrances, is required by the city to pay any unpaid installments of ’ such assessment by virtue of his personal liability under the statute, he may be relieved from -the consequences of 'such double liability .by an equitable action .of subrogation, and upon payment of such assessment, .will be subrogated to the city’s lien upon the land.</p>

<p>TWO CLASSES OF FIRST DEGREE MURDER.</p> <p>Characteristics of Murder in the First Degree — Intentional Killing with Premediated Malice, and Murder While Attempting to Perpetrate a Rohhery — Both Classes of Murder May he Charged in the Same Indictment — Included Degrees of Murder.</p> <p>1. Section 12400 of the Criminal Code defines two separate and distinct kinds of murder in the first degree each having its special and peculiar characteristics.</p> <p>.2. Whoever purposely and with deliberate and premeditated malice kills another is descriptive of the first class of first degree homicide, the characteristics of which are the purposely killing of another with deliberate and premeditated malice; and this class of first degree murder includes murder in the first degree and manslaughter.</p> <p>3. But the statute providing that whoever purposely, in attempting to perpetrate robbery kills another is descriptive of a second class of first degree muTder which includes neither second degree murder nor manslaughter.</p> <p>1. So in a case like the present where the State is not certain whether the evidence will prove a murder committed while perpetrating one of the felonies named, or whether it will show a deliberate and premeditated killing or manslaughter, the indictment may charge the two classes of first degree murder, in which case manslaughter will be embraced within the count in the indictment charging deliberate and premeditated murder which embraces the charge of manslaughter, thus authorizing the court to submit by an appropriate charge the lesser degree of manslaughter, where as in this case, there may be evidence warranting such course.</p> <p>5. The sole question involved and decided in Bandy v. Bandy, 102 O. S., 384, affirming 22 N. P. (N.S.), 65, was whether under a charge of murder in the first degree for purposely and maliciously killing another while perpetrating a robbery, it was error to refuse to charge either murder in the second degree or manslaughter, where there-was.no evidence tending to support either of such offenses. Whether “murder in the first degree, literally considered, necessarily includes murder in the second degree and manslaughter” was neither involved, presented nor decided by the judgment oí any oí the three courts.</p>

<p>STRUCTURAL CHANGES IN BUILDING BY TENANT AND ACTS WHICH CONSTITUTE WASTE.</p> <p>Landlord and Tenant — Agreement as to Certain Improvements — Tenant by doing into Possession Waives Bigñt to Object to Sufficiency of the Improvements — Structural Changes may be Enjoined as Acts of Waste.</p> <p>1. When a landlord contracts to make certain improvements in leased premises as a condition precedent to commencement of the leasehold and makes such improvements therein, his tenant by going into possession of the premises without offering any objection to the character of the improvements. thereby accepts the premises and waives any right to thereafter object to the sufficiency of such improvements.</p> <p>2. A tenant who has covenanted .in a lease to make no alterations or additions to leased premises without the consent of his landlord and to commit no act of waste, will be enjoined upon application of his landlord, who has not consented to such change, from making any improvements which involve structural changes, even if such improvements would add to the value of the leased premises.</p> <p>3. A change in the arrangement of the heating system, of the show windows, of the glass front, and of the entrance door of a building, are all structural changes and will be enjoined as acts of waste.</p>

<p>AGREEMENT MADE BEFORE MARRIAGE TO CONVEY LAND.</p> <p>Statute of Frauds — Not a Bar to Conveyance of Land in Pursuance of a Parol Agreement — Dower does not Attach, where Marriage Occurred Subsequent to such Agreement — Warrantor may be Let in to Defend.</p> <p>1. A warrantor is properly made a party on his own application, to ' defend his warranty in an action by a widow for the recovery of dower in land.</p> <p>'2. Such person may file his answer and cross petition setting forth all defenses he may have to the plaintiff’s claim.</p> <p>3. A contract for the sale of lands not evidenced by any memorandum in writing as required by the statute of frauds, made before marriage and voluntarily consummated after such marriage, is a bar to dower, although the wife did not join in the deeds or know of their execution.</p> <p>4. The statute of frauds is a rule of procedure and not of property, and does not prevent parties from conveying their titles pursuant to parol agreements of which it might have prevented the specific performance.</p> <p>5. Dower is dependant upon the husband’s estate, and where he is ■bound in conscience to convey'his land after marriage because of an agreement previously made, and does so in good faith, his deed relates to the time the agreement was made and dower does not attach.</p>

<p>DISSOLUTION OF CORPORATION UPON PETITION OF MINORITY STOCKHOLDERS.</p> <p>Corporations — Minority Stockholders may Petition for Dissolution, When — Proceeding Statutory — What Minority must Show to Secure Decree of Dissolution.</p> <p>1. Courts .of equity are without jurisdiction to decree dissolution of a corporation and distribution of its assets; such an action, brought by minority stockholders, is a purely statutory proceeding.</p> <p>2. In an action wherein minority stockholders owning more than ori'ethird of the capital stock of a corporation petition for its dissolution, the issue to be determined is whether or not the interest of the stockholders as stockholders can be best promoted by granting a dissolution, or by continuing the business as it is so long as existing conditions continue, the burden being upon the proponents, and consideration being eliminated of any benefit which might come to them from being made employees and paid a salary.</p>

<p>CONSTITUTIONALITY OF THE DENTAL STATUTES.</p> <p>Dentists — Constitutionality of the Act Providing for a State Dental Board — Membership therein not Limited to Non-Advertising Dentists — Invalidity of Provision for Revolting Licenses — Requirement that Practice be Carried on under Individual Names also Invalid — Construction of the Statute Relating to Misrepresentation.</p> <p>1. Section 1314, providing for a state dental board and the appointment, qualification and term of its members, is a valid enactment.</p> <p>2. Qualification for membership in this board is not limited by the words “legal and reputable practice to dentists who do not indulge in professional advertising.</p> <p>3. Section 1325 G. C., authorizing the state dental board to revoke the license of any dentist who advertises “with a view of deceiving the public” etc., is not only class legislation, but is so indefinite in its provisions and leaves such wide discretion for the exercise of arbitrary power by the dental board as to render it invalid.</p> <p>4. Section 1329-1, making the practice of dentistry unlawful unless carried on under the name of the individual practitioner, is an abuse of the police power and unconstitutional.</p> <p>5. Section 12713, providing a penalty for misrepresentation of their qualifications, etc., by dentists, is a valid enactment when construed in the manner suggested by the court.</p>

<p>EVIDENCE CONTAINED IN BOOKS AND RECORDS OF OPPOSITE PARTY.</p> <p>Evidence■ — Bight of Party to Compel Production of Boohs and Records — Application of Section 11551, Relating to Evidence Pertinent to the Issue.</p> <p>Where, from the record, it is apparent that the books and records of the opposite party contain evidence pertinent to the issue, an order will be made, under Section 11551, on motion-and proper notice, requiring the production at the trial of designated books and records in the forum of the trial court, and the fact that the production will put the party ordered to produce same to some expense and inconvenience will not ordinarily be considered.</p>

<p>COMPETENCY OF TESTIMONY OF HUSBAND AND WIFE AGAINST EACH OTHER.</p> <p>Criminal Law — Wife may Testify against Husband, When — Construction of Section 13659.</p> <p>In a prosecution of the husband for the murder of his minor child under sixteen years of age, the wife is a competent witness for the state.</p>