Volume 3 — Ohio Nisi Prius Reports

<p>A juror is not disqualified to sit in a case, because he has an opinion favorable to the credibility of a witness who is to testify in the case, whether the juror formed the opinion from his acquaintance with the witness before the trial, or from hear j ing him testify in another case.</p> <p>A jury is not disqualified to try one criminal case in which the defendant is indicted for unlawfully selling intoxicating liquors, simply because two witnesses who are to testify to the unlawful sales, have testified to unlawful sales in a former case before the'same jury which convicted another defendant charged with a similar offense, where tbe sales were made at different times and places, and where the transactions are entirely different.</p>

<p>Legitimation of children — Acknowledgment of — Domicile—Construction of Sec. 4175 R.8. — Comity—Wills—The doctrine of Lex Rei Sitae.</p> <p>Under sec. 4175, Revised Statutes, where a man had, by a woman, children before marriage, whom after marriage to her he acknowledges as his own, such children are hereby rendered legitimate for all purposes, and this applies where the mother of such children was, at the time of their birth, married-to another man, though not living with him.</p> <p>Where it appears that the mother was a married woman living at the time of the birth of such illegitimate child in Kentucky, but that her father’s domicile was in Ohio, and that after the marriage of her parents and after she was acknowledged by her father, she'lived in Ohio with her parents, the domicile of the father by her legitimation, becomes her domicile.</p> <p>Where in such a case the father desires his lands to the heirs of his body, such legitimated child will take the same as the other children born in wedlock. The rule of comity between the states does not extend to real estate.</p>

<p>Highl of an assignor io claim his exemption from a surplus arising from the sale of mortgaged property — When demand should be made.</p>

<p>Defective findings of fact — Lease construed as to payment of street assessments levied and not yet due.</p>

<p>Lies •Adjudicata — Equipment bonds — Consolidation—Limitation of actions — Act of May 1, 1856, construed — Jurisdiction of State Courts.</p> <p>1. An action brought by one bondholder to enforce an equitable lien based on railroad e*[wipment bonds, alleging that the suit is filed “in his own behalf as well as in behalf of all those in like interest who may come in and contribute to the expenses of and join in the prosecution of the suit”, is binding only on those who are made or become parties to the suit; the parties who are not named are not parties to the suit and are not bound by the proceedings therein, unless they elect to come in and claim as such and bear their proportion of the expenses; or unless, after having had notice and an opportunity to come in and make them-serves parties, they refuse or neglect to do so.</p> <p>2. Such a suit does not come under that provision of the chancery practice, now adopted in the codes of many of the states, that when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it is impracticable to bring them all before the court, one or more may sue for the benefit of all, for, by express averments of the bill, the benefit of the litigation was offered only to such other bondholders as should elect to come in and make themselves parties.</p> <p>3. The fact that by the final decree the court found the amount due on the entire series of bonds and declared the same a lien, and ordered the property sold, did not change the character of the suit, or affect the bondholders who were not parties, and is not, therefore, res adjudicata.</p> <p>4. Even though it should be held that such suit becomes a class or representative suit by the final decree of the court in which it was brought, although the other bondholders were not brought in. by reversal that decree becomes a nullity, and by the subsequent dismissal of the bill only the complainants are bound.</p> <p>5. Suits brought by individual bondholders in which no relief is sought or obtained in behalf of other bondholders, and in which they were not permitted to become parties, presumably because the suit was an individual one, do not connstitute a bar to the subsequent suits of other bondholders of the same class. Such a defense, interposed on the ground that the first or preceding suit was a representative or class suit, is not available where the party whose property is sought to be charged with the payment of the debt allows a suit, individual in form, to proceed, without objection, and without having other bondholders of the same class and parties. •</p> <p>6. An action to enforce a lien upon the property of a consolidated raiload company, based upon an amount alleged to be due on equipment bonds issued by a constituent company, is an action not upon a liability created by statute, nor upon a written agreement, but is solely for equitable relief; and the period of limitation of such actions is ten years from the date when the cause of action accrued.</p> <p>7. The cause of action as to each instalment accrues when the same matures; the right to enforce the lien as to subsequently accruing instalments of interest, or as to the principal of the bonds, cannot be said to have accrued prior to the time when such instalments and principal respectively matured.</p> <p>8. The act of May 1, 1856 (1 S. & C. 327), authorizing a railroad company whose line shall be made to a point in another state to consolidate with the company ox companies of ‘‘an adjoining state” for the purpose of forming a continuous line for the passage of cars, may as properly be construed to mean the state adjoining the state in which the first company has its line of road, as the state adjoining the state in which the first company is incorporated.</p> <p>9. A railroad company in possession and ownership of property acquired by consolidation, foreclosures and sales, in which the consolidation px-oceedings were regarded as lawful, is not in a position to question the • validity of the consolidation as a defense to an action on equipment bonds issued by a constituent company.</p> <p>10. A state court has jurisdiction of an action to enforce an equitable lien upon the . property of a railroad company, commenced prior to foreclosure proceedings in the federal court, when that c.ourt no longer has jurisdiction and the rights of the plaintiffs in the state court were not adjudicated in the proceedings in the federal court.</p>

<p>1. The Ohio statute regulating the suspension or disbarment of an attorney at law from practice is penal in its nature, and should be strictly construed^</p> <p>2. Unprofessional conduct, as used in the statute, means acts committed m the character of an attorney at law, and not as a private citizen, unless the act committed as a private citizen is one which evinces a lack of honesty, integrity and truthfulness, which are the essential qualifications of an attorney at law.</p> <p>3. The “good moral character” required to be possessed by an attorney at law has relation only to his character for integrity and honesty; it embraces only those moral traits of integrity and honesty which fit him to transact fatihfully and honestly the business of an attorney at law.</p>

<p> Liability of municipality for negligence of fire department. </p> <p>A municipal corporation is not amenable in damages to one who was injured by the negligence of the. officers and employes of its fire department, committed while they were practicing with a fire tower, in one of the public streets of the corporation.</p>

<p>1. Guardians bond — Presumption whether new or additional bond — Where no otter reason is shown for the giving of another bond than that by the journal entry it appears the court ordered a new bond given upon the motion of the guardian, and that such second bond was signed by one of the four original and three diferent sureties, then the presumption is that such second bond is a new bond under section 6273 R. S., and notan additional one under section 6261 R. S.</p> <p>2. Presumption as to time of Defalcation. — Where the defalcation being discovered on the final settlement is presumed to have occurred during the term of the last bond in ihe absence of proof showing a prior default.</p>

<p>Assignment for benefit of creditors — Power of Probate Court to order continuation of business of insolvent (in this case a hotel) to preserve the property, without waiting for consent of creditors — Business carried on at a loss.</p>

<p>The Probate Court, and in Hamilton county the Court of Insolvency as the successor of the Probate Court, has jurisdiction to decide as to all matters legal' and equitable that may arise in and be incidental to the complete execution of assignments for the benefit of creditors.</p> <p>Where a party claims that by false and fraudulent representations of a third party he was induced to sell to him his claim against an insolvent, after it had been allowed by .the assignee for the benefit of creditors, ata price greatly below its value, and asks the Probate Court, to re-instate him in his rights as to the distributive share to which he would be entitled under his claim, the Probate Court has jurisdiction to hear and determine the matter.</p>

<p>The Peerless Manufacturing Company was a Kentucky corporation, and during the year 1895 sold goods to the Tomoor-Haldy Company of Cincinnati, Ohio. Such sales were-made in part at Cincinnati by a commercial agent or “drummer” of the Kentucky corporation, and in part by correspondence passing through the mail between Cincinnati and Louisville.</p> <p>In an action by the Peerless Manufacturing Company it was contended that it had no right to maintain an action in this state, for the reason that it had not complied with the provisions of the act of May 19, 1894, which provided that unless the requirements of said act as to filing a copy of its charter, etc., and the payment of a. fee to the secretary of state were complied with, no foreign corporation doing business in this state could maintain an action with reference to such business. Held :</p> <p>1. 1’he business transacted here was interstate commerce business.</p> <p>2. The act of May, 189á, so far as it applied to such business, is in contravention of the commerce clause.of the Federal Constitution,, and is therefore null and void.</p>

<p>1. The rule applicable to transactions between persons standing in’a confidential re-lationship to each other, stands on a general principle, applying to all the variety o,f relations by which- dominion may be exercised by one person over, another.</p> <p>2. Undue influence is not to be presumed from the mere relationship of the parties,;. it may be shown by direct proof, or may be presumed from circumstances.</p> <p>3. Where a relationship exists from which an undue influence is presumed, the burden is on the recipient to show that the transaction is just and fair; that it is fair in itself, and in its nature and effect fully understood.</p> <p>4. The recipient may show that the donor had independent advice, or adopted the transactions after the influence was removed or some equivalent circumstances, and thereby overcome the presumptions.</p> <p>5. The question is not whether the donor knew what he was doing, had done or proposed to do, but how the intention of the donor was produced.</p> <p>C. A man in old age and sick from paralysis, made large presents to the niece pf his deceased wife; the niece was his nurse, and confidential or fiduciary relations existed between them ; no independent advice was afforded him, and there was no ratification after the relationship ceased to exist. It appearing that the man and his wife, having no children, had taken the niece when a child into their family, brought her up and educated her as a daughter; that after the death of the wife the niece became his nurse and companion in his old age and sickness; that his mind was clear, and that he fully understood the nature and effect of his acts; that his intention to make -the gifts was the result of her devotion to him ; ■ that the gifts were justly and fairly made; held such facts were “equivalent circumstances, ” and that the gifts were valid.</p>

<p>Where application for a stay of proceedings is made pending the decision of a higher court, the only matters for the court of common pleas to pass upon are the amount of the undertaking and the sufficiency of the sureties. — Sections 6718 and 6719 construed.</p>

<p> Jurisdiction where executors have paid out money under a discretion granted by the will. </p> <p>In 1886, Sophia Hess died, leaving a will appointing Joseph Trouhstine and Henry Hess as her executors. Among the provisions of the will it is directed that the executors hold in trust for the benefit of Hannah Hart, her sister, during her life, the sum of $2,500, the interest thereon to be paid to her during her life, and the principal to be paid to her children after her death. The will gives the executors a large discretion as to many things. They believed that by reason of the discretion vested in them, they had a right to pay the principal to Hannah Hart, and did so, fully protecting themselves, however, against any claim by taking an indemnity bond. They filed their final account, which was confirmed by the court in 1891. Now come two sons of Hannah Hart, Aaron and Henry Miller, who claim their share of the money which they contend was wrongfully paid their mother. She has since died, leaving these sons nothing. They asked for the appointment of an administrator de bonis non.</p>

<p> Where there are assets and debts of a decedent within the jurisdiction of the court asked to appoint an administrator, an appointment will be made regardless of the domicile of the decedent. </p> <p>Heard on application of Cassily 0. Cook, a creditor, for appointment as administrator.</p>

<p> Griers of tobacco at warehouse sales “auctioneers” within the meaning of the Russell law. . </p>

<p>Wills — Ohio Statutes of Mortmain. — Bequests for religious purposes, in a will which is executed within a year prior to the death of the testator, are void as against a “designated heir.,” Section 5915 construed.</p>

(This case was first tried in the Court of Common Pleas before Judge Maxwell; his opinion will be found in 27-Bull., 118. The judgment then rendered was reversed by the circuit court, and the case remanded for a new trial; see 7 Ohio Circuit Court, 458. The case was beard again in the common pleas court before Judge Wilson, whose opinion has not been printed.

<p>Tcsthnon)/ in Rebuttal — The court may admit testimony out of its order in its discretion under sec. 5190, and the record need not show the courts “good reasons in furtherance of justice.” Such discretion of the trial court is only reviewable after abuse shown.</p>

<p>Attachment of property in hands of administrator under special order of probate court — Obstruction of ordei — Seizure under color of attachment, does not exempt from placing officer in contempt, etc.</p> <p>The execution of a writ of attachment, sworn ' out by the creditor of an estate, by the sheriff or other officer, whereby assets of an estate, held by an administrator undeijspecial order of the probate court, to take an inventory and convert the same into money to pay the debts of the estate, are wrested from the administrator, against his protest and by force, is such a rescuing of property from an officer holding the same by virtue of a spec'al process of a court, and obstructing the execution of said process, so as to constitute the act of the attaching officer a technical contempt of the court under whose orders the administrator is acting.</p>

<p>1. A banker is the debtor of his depositor, and engages to disburse his creditor’s money only as directed by him. It follows that when once the order of the depositor, as contained in his written check, drawn as he intended to draw it, has passed beyond his control, and is issued for the purposes for which it was drawn, the banker can only discharge his duty to his depositor by strictly complying with the original terms of the check.</p> <p>2. Therefore, the banker can pay on such check only the amount originally fixed therein, and to the person named therein as payee; or, if the check is drawn to the order of .the payee, upon the payee’s genuine endorsement.</p> <p>3. So, too, if the payee is non-existent or fictitious, and a loss accrues through the failure of the banker to ascertain that fact, the loss falls on him. These conclusions rest on principles of contract.</p> <p>4. Exceptions, however, arise in cases where, through the act of the maker of the check, the contract between him and the banker has been vitiated, abrogated, or waived; as where the fraud of the maker has intervened, or a special understanding exists between him and the banker, or he has expressly, impliedly, or on principles of estoppel, ratified the banker’s act in paying the check; or where the fact of the non-existence or fictitious character of the payee was known to the maker.</p> <p>5. _A further exception, arising also out of the conduct of the maker, is found in that class of cases in which, through the negligence of the maker, a check is so inartificially and carelessly drawn, that before it is issued, an agent or employe of the maker changes it in essential particulars, or causes it to be drawn for his own dishonest purposes, to an a non-existent or fictitious payee, when the circumstances are such that the negligence of the maker is the proximate cause of the loss resulting from the payment of such check by the banker.</p> <p>6. Such negligence, to constitute the proximate cause of the loss, can only be attributable to the maker with relation to his conduct in, or immediately connected with, the drawing of the check.</p> <p>7. A depositor in a bank, in the drawing of a check, or in the conduct of that part of his business which 'is immediately connected with the drawing of a check, owes to his banker the duty of exercising ordinary care.</p> <p>This duty is founded on common rights and ^obligations, and is enforceable under the laws of torts.</p> <p>8. A corporation, through its negligence in the management of its business, permitted its attorney and agent to cause to be inserted in a check drawn under such circumstances that it could only represent an actual transaction with a real person, a fictitious name as payee. The agent forged the ficitious name, added his own signature to the cheek, and drew the money thereon at the bank with which the corporation kept its account. Held, in an action by the corporation against the bank for the recovery of the amount called for by the check, that, while the depositor might recover from the bank for breach of contract, the bank could then recover from the depositor as upon a tort; apd the court, to avoid circuity of action, would leave the parties where it found them and would award Judgment for the defendant.</p>

<p>Chattel mortgage . on horse, executed before Act of April 10, 1894, prior to lien for keeping same — Amended act retroactive.</p> <p>1. Where a mortgage on an animal in the usual form, is duly executed and delivered, the legal title is thereby conveyed to the mortgagee ; when it is duly registered, and while it remains a valid registered mortgage, the interest of the mortgagee is that of a general owner of the animal, as against any and every interest or lien acquired after the registry of the mortgage. Hamiltop, was not therefore the owner of the mare at the time he made the contract with the plaintiff for her care and'keeping within the meaning of original sec. 3212.</p> <p>2. Under such a mortgage, duly registered, after condition broken, the mortgagee can legally take the animal, wherever found, into his possession under the mortgage as against any and every claim or interest acquired in the animal after the registry of the mortgage, without the consent of the mortgagee express or implied, ■ when there’is a provision therein authorizing it, as there is in this case.</p> <p>3. Under such a mortgage, prior to April 1(3, 1894, there could be no lien superior to that of the mortgagee, created, by furnishing necessary care and keeping to the mortgaged animal under a contract with the mortgagor,while he was in possession of it, without the consent of the mortgagee express or implied.</p> <p>4. In a mortgage of animals made and registered prior to April 10,1894, where the mortgagor retains the possession of the animal mortgaged under the provisions of the mortgage in the absence of any provision to the contrary ; it may be presumed, until the contrary is shown, that the animal was to be furnished all necessary care and keeping, without impairing the mortgage security therefor.</p> <p>5. All the transactions having any bearing upon the questions to be determined upon this demurrer, ante-date the passage of the act of April 10, 1894, amending sec. 3212. The language of the amended act, shows the act was not designed to have a retrospective operation ; but that its operation was to be prospective only ; to apply it to this case, would give it a construction, unauthorized by its language-^ retroactive and unconstitutional application and effect. Article 2, Section 28 Constitution. We therefore hold the amended act of April 10, 1894, is not applicable in this case.</p>

<p>The credits of a non-resident debtor may, without persofaal service oh him, be attached in this state by serving process of garnishment on his debtor residing within the jurisdiction of the court issuing the process and serving him by publication under the statute.</p>

<p>Sheriff’s fees — Fees for committing and discharging prisoners, for attending insane prisoners in probate court, and for conveyance of same.</p>

<p>Gh'Oiuing grapes are emblements, and are growing crops, although not sown annually. In judicial sales of real estate they are not embraced in the appraisement, and do not pass to the purchaser of the land at judicial sale.</p>

<p>Criminal Law — Violation of Smoke Ordinance — Defective ordinance — Penalty provided exceeding statutory limits.</p> <p>Under sec. 1692a, Rev. Stat., authorizing municipalities to pass ordinances to regulate aDd compel the consumption of smoke and to prevent injury and annoyance from the same, a city has no authority to pass an ordinance to prohibit the emission of dense smoke, unless such smoke be an injury and annoyance.</p> <p>A city has no authority to prescribe for a first offense a fine of more than 850.</p>

<p>Criminal Law — Abortion.</p> <p>Under sec. 6815, making it a crime to administer medicines to procure a miscarriage, no conviction can be had unless miscarriago or death follows.</p> <p>On an indictment under that section the defendant can not be found guilty of attempting' to procure an abortion.</p> <p>An attempt to procure miscarriage is not a crime under the laws of Ohio, and sec. 7316 does not apply to such case.</p>

<p>Attorneys retained to secure a debtor’s interest in an estate, will be allowed fees out of the sum realized by their services before distribution of such sum among the creditors.</p>

<p>Dividing annexed territory into wards— Dqiiality of representation — Public Policy.</p> <p>Representation by population is the settled policy of the state of Ohio, and under this policy there should be an approximate equality of voters in representative districts. While, perhaps, the legislature may provide for unequal representation, yet in construing a statute for the purpose of determining whether the legislature has in fact so provided, the court should keep in mind this policy of the state, and if the statute may be c.onstrued in two ways — one of which will give approximate equality in representation and the other will give unequality — that construction will prevail which gives equality ; therefore held : that sec. 8 of the act of April 13, 1893, authorizing cities of the first grade of the first class to annex contiguous municipal corporations — simply directs that the board of legislation shall provide by ordinance for the division of such annexed territory into wards under the power given by sec. 1630 of the Revised Statutes.</p>

<p>1. Seisin in law, as well as seisin in fact, of lands owned in fee by the husband during coverture, is suffiient to endow his widow, not otherwise barred ; but for seisin in law there must be a right of immediate possession.</p> <p>2. Where the husband was vested in a remainder estate, subject to a life estate in another in being, during his coverture, he had no right of immediate possession, was not seized thereof, and if he conveyed the same by his sole deed during coverture, his widow was not entitled to dower therein.</p> <p>3. Perpetual leasehold estates are not estates of.inheritance within the meaning of the dower act; they are as yet treated as fee-simple estates only in being subject to judgment liens and execution as provided in the act of 1821 (sec. 5374, etc.), and in matters of descent and distribution under the act of 1837 (sec. 4181).</p>

<p>Contract in Restraint of Trade. —A contract prohibiting one of the parties from carrying on any specific trade or business, not having any reasonable limitations as to the time or place, is void. The prohibition which extends any further than will fully protect the party for whose benefit the contract is made, in his occupation or business, is an unreasonable restraint of trade, and will render the contract void.</p> <p>Contract not to engage in certain trade. — A contract not to engage in a certain lino of trade for twenty-five years in Ohio or elsewhere in the United States, is an unreasonable and oppressive restraint of trade, and void as against public policy.</p>

<p>1st. Municipal corporations are sub-divisions of the State, created in part for convenience, to aid the State to enforce those laws, for the protection of individual rights, and to promote the public welfare simultaneously in different sub-divisions, when occasion requires, and with promptness everywhere within its bounds; which, as between the State and its local sub-divisions, are to be enforced by the State— among which, are all laws and ordinances for the suppression and punishment of crimes and offenses.</p> <p>2nd. When the officers of a municipal corporation make an arrest, upon a criminal charge, and place the accused in a lock-up— provided for that purpose by the municipality or corporation — to await a hearing upon a criminal charge, they are not then acting as officers of the municipal corporation, by which they were elected, but are acting as officers of the law, and of the State as a sovereignity.</p> <p>3rd. While such officers are liable, as individuals, to the accused therefor, the municipal corporation in which they’ were elected is not liable for any excess of force, used in making the arrest — or want of authority of law to make it — or for the careless or cruel treatment of him by them while in their custody.</p> <p>4th. In providing a lock-up, in which to confine persons arrested for crime, the village is acting under the authority of, and as agent for the State, and is not liable for any to those imprisoned therein while under arrest waiting for a hearing caused by its unhealthy or dangerous condition.</p>

<p>An assignee has no such interest in a trust as will entitle him to litigate the question of his displacement.</p> <p>The court of insolvency is clothed with judicial discretion in the matter of the removal of an assignee.</p>

<p>A policy of insurance provided that: “This policy shall be void if the interest of the insured be other than unconditional and sole ownership, * * and if any change other than by the death of tho insured takes place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process, or judgment, or by voluntary act of the insured or otherwise ; or if this policy be assigned before a loss.”</p> <p>Held, That the assignment for the benefit of creditors by the insured avoided the policy.</p>

<p>Contributory negligence of a father — In such case naught to recover for injury to child</p>

<p>No damages for mere mental pain and suffering in consequence of the failure of the Telegraph Co. to deliver a message promptly can be recovered, Therefore damages for physical pain suffering induced by mental suffering, can neither be recovered.</p> <p>This was an action for damages against the Telegraph Company for negligence in failing to promptly deliver a message. The plaintiff avers in her petition that she resides in Ravenna Village, Portage county, on Cedar street, and has resided there for two years last past, and has resided in the village of Ravenna for three years last past, and is well known in said village, and her place of residence is well known to the public of Ravenna, and is about one eighth of a mile from defendant’s office in said village. That her mother died in Pikesville, Md., on or about April 21st, 1895, and was buried there April 25th, 1895, at 9:00 A. M. : that her sister, Marion Lowry, on April 22nd, 1895, at about 7 o'clock, A. M., at the office and place of business of defendant, in the city of Baltimore, Md., through defendant’s employes caused a message to be transmitted and forwarded by telegraph to plaintiff at Ravenna, O., and to whom said message was to be delivered at said place at once, and said message was in words and figures, to-wit:</p> <p>“No. 11H. ch. N. 1, Paid.</p> <p>“Received at 8:07, P. M., April 22nd, 1895.</p> <p>“Dated Baltimore, Maryland, 22.</p> <p>“To Mrs. Elizabeth Kline, Ravenna, Ohio.</p> <p>“Your mother is dead; bury Thursday, 9 A. M., at Pikesville.</p> <p>‘1 Marion Lowry. ’ ’ ]</p> <p>That said message was sent by defendant from the city of Baltimore about 7:00 o’clock, A. M., on the 22nd day of April, 1895, and was received in Ravenna at defendant’s said office therein April 22nd, 1895, at about 9:30 A. M. ; that during all of the time from 8:07 o’clock, P. M., April 22nd, 1895, to April 24th, 1895, 9:30 o’clock, A. M., she was at her home on said street in said village of Ravenna, and could have been found at home all of said tithe; that Pikes-ville, the place where her mother was buried, is located in the State of Maryland, a distance of about 600 miles from Ravenna, where plaintiff resided, and it was impossible for her to reach Pikesville, Thursday at 9:00 o’clock, A. M., in time to attend her mother’s funeral after receiving said message ; that defendant had ample time to deliver said message to plaintiff, and that she would have had time to have traveled to Pikesville, Md., to attend her mother’s funeral, had it been promptly delivered.</p> <p>Plaintiff further avers that she is of a very nervous temperament and very susceptible to nerve shock, by fright, disappointment, or displeasure; that she was then and is now of a very affectionate disposition toward her relatives, and especially toward her mother, between whom and plaintiff was a strong tie of love and affection ; that by reason of not receiving said message in time to goto Pikesville, Md., and attend her mother’s funeral, and thereby being deprived of attending the same, it produced a nerve shock upon her, affecting her whole nerve system, rendered her weak and disabled her bodily and mentally from perform • ing her work, and she has ever since and always will suffer great mental anguish, and be permanently injured by reason of said nerve shock, received as aforesaid. That defendant, its servants, employes and agents, were careless and negligent in receiving said message at its office in Ravenna at 8:07 o’clock, P. M., on the 22nd day of April, 1895, and not delivering the same to plaintiff until Apri-l 24th, 1895, at 9:30 o’clock, A. M.</p> <p>That it was careless and negligent in not delivering said message promptly after receiving it at Ravenna, O. ; that it carelessly and negligently held said message beyond all reasonable time for its delivery, without any excuse or reason therefor; that it was careless and negligent in employing agents and servants that neglected carelessly to deliver said message; that it carelessly and negligently held said original message as handed to the operator at Baltimore,Md,,beyond all reasonable time before the same was sent from said Baltimore office to the office in RavenDa, O.</p> <p>Plaintiff says further that on June 19th, 1895, which date being within 60 days from the date of the receipt of said message by her, she presented through her attorney her claim for damages to said Western Union Telegraph Company for allowance, and the same was by it rejected on the 10th day of August, 1895. By reason of all which grievanee plaintiff has been damaged in the sum of $1,999.99, for which she seeks judgment.</p> <p>Defendant denies all liability.</p>

<p>The Home Mutual Aid Asociation, finding its plau of operations impracticable, and that it was, in fact, insolvent, so far as carrying out its scheme of insurance was concerned, petitioned for a-n order of dissolution and the order was duly made.</p> <p>After paying.all its indebtedness, except to its own members on their certificates of shares in the'Association, there remains in the hands of the receivers for distribution to members, $4,268.48; the liabilities to members amounting to over 860,000.00</p> <p>Matured certificate holders demand payment as creditors of the Association, from the fund, in full of the amount shown to be due them by the terms' of their certificates and the by-laws of the Association, as of the date of the order of dissolution.</p> <p>Beneficiaries of deceased certificate holders demand payment as creditors of the Association in full of the amount shown by their certificates and the by-laws of the Association to be due them as of the date of the order of dissolution.</p> <p>Certain certificate holders defaulted in the payment of the last assessment, and all other members dispute their right to participate in the fund to any extent whatever.</p> <p>All those holding certificates not matured, and not of deceased members, and who have not defaulted in the payment of an assessment, contend that with the exception of defaulting members, the division of the fund should be per mi et per tout:but that the defaulting members should receive nothing.</p> <p>Held. First — Ibe matured certificate holders and beneficiaries, holders of certificates of deceased member's, are not creditor's of the Association in such sense as to entitle them to a preference in payment over-other certificate holders.</p> <p>Second — The members who failed to pay assessments did not forfeit their rights to participate in a dividend from the fund; their failure to pay being after the Association stopped business, and pending its dissolution.</p> <p>Third — The fund should be distributed pro rata among all certificate holders or representatives in proportion to the amounts paid in on each certificate respectively, except, that defaulting members should receive such pro rata less the1 amount of assessment defaulted.</p>

<p>1. The act of the legislasure of May 16, 1894 called the Hard Law, is not unconstitutional.</p> <p>2. The act of the legislature of Aprü 25, 1893, and the payment of the fee required thereby by the plaintiff did not, for reasons given in the opinion, constitute a contract.</p> <p>3. The first named statute having furnished a remedy for an alleged erroneous assessment of the fee to be paid by the plaintiff, it should have availed itself of that, before resorting to this equitable action.</p> <p>4. The payment of the ee, which that statute exacted, by the plaintiff, was voluntary payment.</p> <p>5. The payment of money under a protest does not render it involuntary, unless the other circumstnees under which it was paid would justify its recovery back.</p>

<p>Under an information for gambling, under section 6931, Revised Statutes, a person can not be piosecuted for playing policy or some kind of lottery. The latter must be prosecuted under section 6932, Revised Statutes.</p> <p>The information filed reads as follows, omitting the heading:</p> <p>That on the 19th day of December, 1895, and on divers other days,, and times between the first day of September, 1895, and said 19th day of December, A. D. 1895, at the city of Cleveland, in the county of Cuyahoga and State of Ohio, one William Lark, and one Jacob Weber did keep two certain rooms there situate, in a certain building known as number 61 Michigan street, to be used for gambling, and i'n ihe said rooms kept by the said William Lark and Jacob Weber to be used for gambling as aforesaid, then and there unlawfully did cause, procure and permit divers folk and evil disposed persons on the said 19th day of December, A. D. 1895, and on divers other days and times between the 1st day of September, A. D. 1895 and the said 19th day of December, A. D. 1895, to game and wager at and in a certain scheme of chance commonly called policy, and the said idle and ill disposed persons then and there in the said gambling rooms on the day then last aforesaid and on the days and times aforesaid by such procuring sufferance and permission of the said Wiiliam Lark and Jacob Weber, did there game and wager at and in said scheme of chance commonly called policy, for money, contrary to the form of statute in such case made and provided.</p> <p>T. M. Kennedy, Pros. Att’y</p> <p>Police Court.</p>

<p>D, residing in Avondale, in Millcreek township, was elected a justice of the peace for said township; a part of that township* including Avondale, was annexed to Cincinnati township. Held, That D acquired, ■¡thereby, jurisdiction in civil cases in Cincinnati township.</p>

<p>1. Leases of premises to be used for the sale of intoxicating liquors, and leases of premises which are permitted by the lessor to be so used, are void under section 4364, Revised Statutes, whether the sale of such liquors on the premises be lawful or unlawful.</p> <p>2. In such cases, where the lease is void, the lessor may maintain an action for use and occupation against the occupants who have held and used the premises,and recover from them, for the time the premises were actually held by them.</p> <p>3. Where the lease was made by the lessor to F. J. V., as lessee, and the lease was void, but the premises were actually occupied by F. L. V., on his own account, and in the transaction of his own separate business, no recovery can be had against F. J. V.</p>

<p>Delivery is not essential to the validity of a memorandum in writing of a contract of sale of real estate required to be signed under the statute of frauds.</p> <p>But such a writing may be signed with a parol agreement that it shall not be a binding contract until some future step is taken and parol evidence may be heard on the issue whether the writing ever became a, binding contract under the agreement.</p>

<p>Where suit has been rightfully brought against a corporation, service may be made on the president, etc., in that or another county, but if it can not be made on him in that county,he need not be followed to another county</p>

<p>Replevin — Meaning of words, “valueso assessed” in replevin suits — The words “so assessed” in Sec. 5280 R. S. mean the value assessed by the judgment against the defendant rendered on the verdict of the jury.</p>

<p>Marriage will not be avoided by deception'-, practiced by one of Ihe parties except where where such deception is practiced by one’of the parties in the essentials of the marriage contract. ' - -</p>

<p>A sub-contractor who furnishes his material to a contractor with a city for laying ,side-walks can only secure a mechanic’s lien .on the fund which the lienor’s material .added too create.—</p>

<p>1. Where in a decree of divorce and alimony, the defendant is ordered to pay 8450.00 alimony, piayable in monthly installments of 815.00 each until fully paid, such decree for alimony is not a final judgment in the case, but it is an order of the court that the plaintiff pay 815.00 per month until the sum of 8450.00 has been paid, anda failure on part of the defendant to comply with such order is a contempt of court, for which proper proceedings will lie.</p> <p>2. Distinction between judgment and order of the court — A judgment in Ohio, and under our practice, is the final determination of the rights of the parties in action. An order of the court is a direction by the court or judge made or entered, in writing, and not included ,in a judgment.</p>

<p>Where a second mortgagee brings suit in foreclosure, and the first mortgagee merely sets up his claim, and the property sells for less than the first mortgage, the second mortgagee must pay the costs unless tender was first made to the first mortgagee of the amount of his claim ; but if the first mortgagee also takes steps for a foreclosure, the costs will be equally divided.</p>

<p> Garnishee proceedings brought in another jurisdiction by a creditor of an estate in the hands of a receiver. </p> <p>A receiver of a corporation was appointed by the Common Pleas Court of Hamilton County; a creditor of the corporation living within the jurisdiction of the court caused suits to be instituted in the states of Kentucky and Illinois, and garnisheed debtors of the corporation in those states.</p> <p>Held : The court appointing the receiver has power to order such creditor to dismiss such garnishee proceedings, and on his failure to comply with order, to punish him as for contempt.</p>

<p>A surety.on an appeal bond belongs to the class of debtors covered by section 6344.</p> <p>A petition for recovery on an appeal bond should set out particularly the terms of the bond, etc.</p>

<p>Where one, not a mere volunteer,advances unpaid wages with an honest purpose of relieving wage earners, and not for personal gain, he is entitled to be subrogated to the rights of said wage earners.</p>

<p>Implied contract of guardian to pay for support of his ward — Where a guardian, wife of her insane husband, had knowledge that her ward was taken by warrant of the probate judge to the county infirmary, upon his discharge from the State insane asylum (with no homicidal or suicidal propensities), and consented to such disposition of her ward, and he remained and was supported there for a series of years, with her knowledge and consent, he, not being a pauper, but with abundant means in her hands, as such guardian to pay for his support,</p> <p>Held, That there was an implied contract on the part of the guardian to pay what the support and maintenance was reasonably worth.</p>

<p>Action in firm name — A partnership composed of two brothers, doing business under the firm name of M. Doob & Bro., cannot maintain an action in this State without registering and filing a certificate with the clerk, as required by the act of May 19, 1894 (90 Ohio Laws, 357), entitled “An act to prevent the use of fictitious names in partnerships. ”</p>

<p>Notice of assignment — Notice of an assignment of a judgment need not be given directly to a judgment debtor, yet he will be protected in payments made to a judgment creditor, until he has either actual notice of assigment, or notice of such facts as put him on inquiry.</p> <p>. Not'sufflcient notice — Putting an assign ment on the appearance docket in a ease is not such notice as will put a judgment debtor upon inquiry, and is therefore not sufficient.</p> <p>What required of a purchaser — The purchaser of a judgment is affected with knowledge of the state of the record. He is bound to inquire for all the defenses the debtor may have, whether they appear of record or not. If he would protect himself iagainst subsequent payments to his assignor, it is his duty to give notice of the assignment.</p>

<p>Motion for proceedings for contempt.</p>

<p>1. That part of section 6968 which provides for the confiscation of the fish net and thereby depriving the owner of his property without service" of process, or day in court, is in violation of section 16, article I of the constitution of this state.</p> <p>2. That part of the section making it illegal to maintain nets within one-half mile of the mouth of any river flowing into Lake Erie, is not dependent on the confiscation provision, but can be enforced without reference to it, and is therefore valid. ,</p> <p>3. It is not shown that the kinds of fish their habits and the conditions and restrictions required for their protection, are the same in the other bodies of water in the state, as in Lake Erie, and it is not therefore shown that it is “an act of a general nature”, and therefore not shown to be in violation of section 26, article II, of the constitution of this state.</p> <p>4. An, indictment which does not charge all the criminating acts, which the state must prove to authorize a conviction, does not charge an offonse. An omission to state all the criminating acts cannot be cured by the use of the word “unlawfully.” Lamberton v. State, LI Ohio, 282. '</p> <p>5. This indictment under said section charges that the defendant unlawfully maintained a certain fish net in the waters of Lake Erie within one-half mile of the mouth of Grand river, a river flowing into Lake Erie, but does not charge that it was set, opened out. or maintained in such condition that fish could be caught in it, or that it was being maintained there to catch fish; therefore it does not state all the criminating facts which the state must prove to authorize a conviction ; consequently does not state an offense. 8 Ohio St. 98, opin. 115, construing sec. 10, article I of the constitution.</p> <p>6. Is not the language of the provision of said section upon which this indictment was based, so meagre and general — its omissions so many — its uncertainty so great, by the careless use of language, that legislation is required to make of it a criminal statute authorizing a criminal charge such as is required by sec. 10, article T, of the constitution. Opin. Bartley, Judge, 8 Ohio St. 115.</p>

<p>Estoppel — Waiver of forfeiture where the conditions of a life insurance policy requires that suit be brought within six months after death of the insured.</p>

<p>Meere failure to comply with statutory provisions having reference to the issue of city bonds will not relieve the city from the obligation of repaying the money borrowed on the faith of such bonds.</p>

<p>Liability of owner of tenement house for injury of a tenant’s child from a falling gutter — The owner of a tenement house, having control thereof, renting rooms to various tenants from month to month, is liable in a suit by the infant child of a tenant for injuries occasioned by the fall on the child in a portion of the premises where it had the right to be, of a dangerous and defective gutter.</p>

<p>Suit for damages for alienating wife’s affection, and for debauching her — If the plaintiff knowingly, althought it may have been only passively, suffered, permitted or connived at the alleged improper advances, attentions and presents from the defendant to his wife, and at their alleged improper relations so far as the same is charged in the petition, the verdict must be for the defendant, notwithstanding the jury might be satisfied that the defendant by means of the conduct charged, had alienated the love and affection of the plaintiff’s wife— Measure of damages — What to be considered ---Punitive damages.</p>

<p>Blacklisting R. R. Employe — Liability of R. R. Co. — Where there is no contract between a R.. R Co. and one of its employes, binding either for a specified length of time, the employment may be terminated by either at any time with or without cause; but while a R. R. Co. has the right to discharge such employe, it has no right to interfere witn or prevent such employe from obtaining employment elsewhere ; and where such R. R. C., by its agents or officers, by their action in enforcing the rules of the R. R. Co.,renders it impossible for such employe to obtain other employment in his chosen vocation as a railroad man, the R. R. Co. will be liable in damages to such employe.</p> <p>Malice defined — Malice may be express or implied, and will be implied where there is an unlawful purpose and intent to cause damage or loss to another.</p> <p>Combination between R. R. Co’s.— It is not necessary in such case to prove a combination between R. R. Companies through their officers in thé enforcement of their rules; if the R. R. Co. acted intentionally, wilfully and maliciously, and thereby caused damage to ihe discharged employe, he is entitled to recover damages</p>

<p>An assignee can not charge a commission on moneys coming into his hands which it is found do not belong to the trust fund; nor can a commission be charged on the same amounts by both an assignee and the trustee succeeding him.</p> <p>Where neither of two co-trustees is dominant, counsel employed by either of them and recognized by the court are legally employed.</p> <p>Failure by counsel to get a check cashed with which he has been paid his fee by an assignee, does not constitute non-payment by the assignee.</p> <p>A fee of 81,250 for ten days of almost exclusive service rendered by an attorney to the assignee of a bank with large assets and liabilities is not excessive — Fees for other services by counsel.</p>

<p>In counting the three days after the rendition of the verdict within which a motion for new trial must be filed, except for newly discovered evidence, Sunday should not be included</p>

<p>Regulation by a municipality of the sale of the necessaries of life in the markets.</p> <p>Ordinances having this end in view should be general in their nature and impartial in their operation.</p> <p>Where a license has been issued to sell fresh meat from a “stand,” and the owner is refused a stand in the market-house, he can not be prosecuted for selling in the open air contrary to the market regulations.</p>

<p>A marriage may be proved from acts of recognition, cohabitation,birth of children, and the like, and this even when the parties originally came together under a void contract, and also where the intercourse was at the commencement, illicit. And in case of conflicting presumptions on the subject of legitimacy, that in favor of innocence must prevail.</p>

<p>Demurrer to petition.</p>

<p>Criminal Law. — What affidavit should state — The affidavit should contain such a statement of the nature and cause of the accusation as would impart to the accused, reasonable information of the charge so as to enable him to prepare his defense.</p> <p>Prosecution under adulterated food law— Sufficiency of affidavit. — An affidavit substantially in the words of the statute upon which the prosecution is based, is sufficient where the statute itself sets forth and defines the offense.</p> <p>Admissibility of Pharmacopoeia published after enactment of Statute. — The statute providing against the sale etc., of adulterated food, drugs etc., having been passed in 1890, which makes theUnitedStatesPharmacopoeia the standard as to the genuineness of drugs, it is error for the court in a prosecution under this statute, tó admit as conclusive a United States Pharmaeopoia published in 1894, without showing that the test prescribed in the later edition is the same as was prescribed in the edition when statute was passed.</p>

<p>1. The defendant, which was a member of the Mutual Fire Insurance Company of Chicago, was not a necessary party to a suit brought and pending in the Circuit Court of Cook County, Illinois, in which an assessment was made by the court upon the said defendant; and the judgment of the court touching that assessment is binding upon the defendant, although it was not made a party.</p> <p>2. The said Circuit Court was as uccess- or of the directors of said Fire Insurance Company, and had the same power which they possessed to order the assessment.</p> <p>3. In this action it was competent for the defendant to make such defense against the assessment as it might have made, if the suit had been brought exclusively upon the contract of insurance.</p>

<p>1. The owner of lands who, from “unmixed malice, ” diverts water which either percolates through, or flows in definite and well known subterranean channels under, his own or his neighbor’s land,, and obstructs, prevents and intercepts said water from flowing into a spring on his neigbor’s land where it would have otherwise flowed, is amenable in damages to the neighbor whose spring is thereby injured or destroyed.</p> <p>2. Frazier vs. Brown, 12 Ohio St. ,293, discussed and distinguished from the case at bar.</p>

Statement. George White made his will and codicil thereto, February 17, 1886; on January 3rd, 1890, he made a second codicil. He died August 17, 1892, leaving the real estate of which the plaintiff seeks partition.' The question to be determined here involves the construction of George White’s will.

<p>1. Where a trustee brings a suit in behalf of its cestui que trust, and where the attorneys who represent it are employed, and are to be paid, by some of such cestui que trust, and where they have received, and are to receive, all instructions and directions in regard to the suit from the latter, and where the trustee is indemnified against all cost and expense, including attorney’s fees, and where the 'trustee seeks to dismiss the said attorneys from the case, and to substitute others for them, for the avowed purpose of dismissing the suit, and where it appears that fresh action or actions, brought by the cestui que trust, would be barred by the statute of limitations, it is competent for the court, upon motion of the cestui que trust, by an appropriate order, to forbid the change of attorneys, and the dismissal of the suit.</p> <p>2. Section 5314, of the Revised Statutes, has no controlling power in such case.</p> <p>3. Where the inherent common law or equity power of a court of general jurisdiction is only partially defined by a statute, the inherent power is not impaired by the statute, necause the court is greater than the statute.</p>

<p>G. insured his life in the U. S. L. I. Co. for the benefit of his mother, and at her death claimed the right from the company to name a new beneficiary (intending to name himself, his executors or assigns.) This the company refused to permit him to do. He then brought the present action at law against the company to recover a& damages for breach of contract the amount of premiums he had paid on the policy.</p> <p>Held — That the executors or administrators of the mother had such an interest in the-policy as would deny to the plaintiff the right to call upon the company to declare that the policy had innured him.</p>

<p>1. The surety of a bond is not liable unless the nature of the default' of his principal comes strictly within the terms of his undertaking.</p> <p>2. The undertaking,although general in its terms, is limited in its effect by recitals in the bond descriptive of the subject matter with respect to which the bond is given.</p> <p>3. The bond recited that M. &Co., had been appointed by J. & H. Co., a corporation, as their sole agents at Cincinnati for the sale of their merchandise; and was conditioned that if M. & Co., should account to J. & .H. Co., for all money due to it from them, then the obligation would be void.</p> <p>Held : That the surety on the bond was not. liable for money due the J. & H. Co. for goods sold M. and Co. by it.</p>

<p>A title as devisee is a new title (as distinguisehd from a title by. inheritance) and is not acquired until the probate of the will.</p> <p>'To constitute a reduction to possession by a husband of personality belonging to his wife so that the title may vest in him, there must exist both the intent to appro priate to his own use and the act of appropriation.</p>

<p>It is the duty of the court to fix the compensation o£ a receiver appointed by the court, and an action will not lie to compel the reeiver to fix the value of his services and direct the payment of the same to satisfy the claim of a judgment creditor of such receiver.</p>

<p>An ordinance delegating the power to the Mayor to purchase and maintain water fountains is, in the absence of statutory authority, invalid .</p> <p>But an application for an injunction, which was not made till after the purchase and delivery of such fountains, comes too late to apply to the purchase.</p> <p>The presumption as to the Mayor is that upon hearing that the ordinance is invalid he will proceed no further.</p>

<p>Notice to quit — When suit may be brought.</p> <p>The lease of a tenant would expire on October 20; on October 19 the landlord gave notice under section 6602 Revised Stat- ■ utes, to the tenant to leave the premises. Held : That by such notice the term of the tenant was not extended till the expiration of three days from October 19; but as that section requires that three days shall be. given the tenant before suit may be brought, the landlord could not bring his action till such time has expired.</p>

<p>Insolvent corporation — Stockholders’ liability — Finality of judgment enforcing liability of stockholders.</p> <p>An action having been broughfo by a creditor on behalf of himself and all other creditors of an insolvent corporation, against the stockholders to enforce their statutory liability,'and judgment having been rendered against the stockholders in the circuit court, for twenty-five per cent, of the value of their stock, upon an action now brought by a creditor of the corporation to enforce against the stockholders payment of a judgment obtained against the corporation, after the commencement of the former action, but before final decree therein in the circuit court, upon demurrer to the petition held:</p> <p>1. That the final judgment in the circuit court conclusively estopped the plaintiff, and all other creditors, from prosecuting any further action, in this state, to enforce the individual liability of the stockholders of that company. ,</p> <p>2. That such judgment was a final determination of all liability of thé stockholders who were parties both as subscribers and also as holders of stock.</p> <p>3. That the judgment of the circuit court remained final and conclusive so long as it remained unreversed, and not otherwise vacated, notwithstanding the pendency of proceedings in error in the Supreme Court,</p>

<p>Fixtures — Questions of classification where the contention 1'elated to machinery used in making bride.</p>

<p>Decision of Court on petition for an in~ j unction.</p>

<p>The board of education of Cuyahoga Falls, consisting of six members, failed to elect a superintendent of schools of that district, by reason of an equal division of the members of the board as to the re-employment of the former superintendent, and in consequence of such division, no appointment or election of a superintendent was made until after the commencement of the schools in September, 1895, when the county commissioners of Summit county, being duly advised, at a regular meeting appointed a superintendent of schools for that district, under and by virtue of section 3969 of the Revised Statutes of Ohio.</p> <p>Held: That such action of the county commissioners was legal, and that the superintendent so appointed held his office as superintendent the same as if appointed by the board of education, and was entitled to receive his pay.</p> <p>And that where the treasurer of the school district refuses to pay an order for his salary, mandamus is the proper remedy.</p>

<p>Negligence — Where an injury results from several concurrent acts.—</p> <p>1. Where but one injury has resulted from several concurrent acts of negligence, it is not good pleading, under the code, for the plaintiff to set forth each act of carelessness in a separate cause of action ; and when he has done so the court will, on motion, require him to elect upon which act, as set out in a separate cause of action, he will proceed.</p> <p>2. He may in one cause of action, allege all of the acts of negligence from which the injury has resulted, and on the trial he may rely upon any or all of such acts as he is able to prove.</p>

<p>1. It is a crime for a member of the legislature to solicit money from another for himself, or any other member of the legislature to influence his official action.</p> <p>2. The State was not required to prove that he solicited it for his own use, or that any money was, in fact, paid to him, or-that the money solicited was the sole consideration or inducement for the exertion of his official action.</p> <p>3. Asking other members of the legislature to support bills and resolutions, collecting and presenting facts and reasons to-them, and making arguments, to induce such other members to support bills and resolutions, constitute ‘“‘official action,”' and the exercise of “official duty” by a-member of the legislature.</p>

<p>Damages cannot be recovered on account of the breach of a contract which is rendered illegal in part because of a provision for a theatrical performance on Sunday.</p>

<p>Taxes — Overpayment in consequence of clerical error of Auditor-Right to refuud,er — Sec. 1038 R. S.—</p> <p>Where the official returns of the various equalizing, reviewing and revising boards show that one against whom taxes have been assessed has paid taxes too great in amount, the law authorizes the Auditor to make the current duplicate correspond with those returns, and to issue a refund-er and remitter for that year; and for the preceding years it is the Auditor’s duty to certify to the County Commissioners the fact of the payment of taxes erroneously charged.</p> <p>While it is well settled that taxes voluntarily paid can not be recovered from the tax collecting officer, the tax-'payer may indirectly reclaim his money (where the payment has been made by reason of an error in ¡¡he Auditors’ office) by requiring the Auditor to do that which the law makes it his duty to do.</p>

Statement. The plaintiff and defendant entered into a written contract by which the latter agreed to construct a hotel building.

<p>Heard on error from the Police Court of Cincinnati.</p>

<p>In Habeas Corpus.</p>

Statement. July 14th, 1894, The Central Press Association Company, a corporation, executed a cognovit note to the Remington Paper Company for 817,168.92, and at the same time, to secure its payment, executed a chattel mortgage, the mortgage covering substantialiy all the property owned by it. It was then a “going concern.” Its debts were then equal to, or greater than, its assets.

<p>1. M. — a judgment debtor, induces K. to advance money to buy a judgment lien upon her real estate, which her judgment creditor is pressing for payment. K. examines the title, pays the money and becomes the assignee of the judgment lien, m good faith, without knowledge, actual or constructive, that M’s grantors have an interest in the real estate. Held : That K., the assignee, is a quasi purchaser ; that he has a better title than his assignor had, and that his equity is superior to that of M’s grantors.</p> <p>2. An heir entitled to a share in the distribution of'an ancestor’s estate, may have, in proper proceedings, a personal judgment, for the amount of his share, upon the default of the administrator to comply with the court’s order of distribution ; and if the heir be of age-and competent to sue in his own behalf, his right of action will be barred by the statute of limitations, six years from the date of such administrator’s default.</p> <p>3. The usual relations and duties existing between such defaulting administrator and the heir, do not give rise to a continuing and subsisting trust.</p> <p>4. If by deceit or fraud the heir is induced to agree to surrender any rights against the administrator, 'such heir must bring his action to set aside such agreement within four years after a discovery of such fraud.</p>

<p>1. Fraud in the sale of property defined.</p> <p>2. The decision o f the Supreme Court of Illinois, determining the validity of a title to land situated in that state, is binding upon the court and jury in this case.</p> <p>3. The opinion as to the value of land expressed by the seller to induce the purchaser to buy is not a fraud, if it was only an opinion, and was honestly given, although untrue.</p> <p>4. The law does not exact any greater degree of honesty and good faith from a minister of the gospel who sells property than it does from a layman.</p>

<p>Where building lots extend from a higher "to a lower street, the depth to which the owner may excavate his lot under the statute, without being liable for damage to his neighbor, if free from negligence, is determined by a slanting line from the curb of ‘the higher to the curb of the lower street.</p>

<p>Section 2827, Revised Statutes provides-for the amount of money that may be raised for general purposes, based upon the taxable valuation of the property of the township, and not for a rate of taxation.</p> <p>The rate of taxation should be determined by ascertaining what percentum of the whole taxable property in the township will raise the amount of money determined on by the trustees, not exceeding the limit by said section.</p> <p>It was the legislative intent to allow the-trustees of a township, having a large taxable valuation of property, to raise more money than the trustees of a township having a much less taxable valuation, and the-amount of taxes which could be raised in each township might increase as the taxable-valuation of the property in the township increases.</p> <p>The levies of taxes provided by sections 1465, 1482, 4737, 4745 and 4940, are in addition to the amount provided by said- last-named section.</p> <p>When a railroad passes through several' townships of the same connty, the amount of taxes due from said railroad company for each township is a separate sum, and may be paid to the county treasurer without paying the railroad company’s taxes in other townships of the same county, and the county treasurer is authorized and required to receive the taxes due for one or more townships even though the taxes due-for some other township in the county are not paid or tendered.</p> <p>In every township where the levy is not excessive nor illegal the railroad company is liable to a penalty if the taxes are not paid when required by law.</p> <p>In a township where the taxes are excessive in some particulars and for that reason1 the railroad company refuses to pay or tender any part of its taxes, whether penalty should be added — quaere?</p>

<p>Construction of language of various orders of assignment of a fund. — Assignments of choses in action need not be in writing.— Necessity for notice of assignment by assignee to debtor. — When an order drawn upon a third person payable out of a particular fund and accepted, is an assignment pro tanto of the fund, and when it creates only a personal liability on the part of the acceptor. — Partial assignments of debts will be protected and enforced.</p>

<p>Plea of Insanity — Charge of the Court under such a plea preliminary to the trial— Nature of the issue — Burden of proof.</p> <p>Charge of the Court.</p>

<p>On demurrer on the petition.</p>

<p>Interpretation of the Shyrock act. — The Shyrock act, providing for charging against the estate the amount of the premium paid to a surety company for going on the bond of the assignee of an estate, is held to be declaratory of the law of the state as it stood after thepassge of the act of 1893, authorizing the acceptance of such bonds.</p>

<p>Vendors’ Kens — The principles upon ivhich they attach in this case.</p>

<p>1. Validity of assessment where same is legal in form although levied on property abutting on one side only of street.</p> <p>An assesment ordinance for the construction of a sewer provided that the assessment should be made upon the property “bounding and abutting upon the improvement” according to benefits, but the assessment was levied upon the property abutting on one side only of the street whereon the sewer was constructed. Held, In the absence of evidence, showing that the property was not assessed could be benefited by local drainage into said sewer, and that it was not already supplied with local drainage, and therefore exempt from assessment, such assessment was legl in form, and therefore valid.</p> <p>2 Validity of assessment containing charges for material not used.</p> <p>A sewer assessment, which includes excessive charges for lumber, not in fact used in sewer, is inavlid to the extent of such charges.</p>

<p> Unreasonable delay in offering to return goods seized by attachment in a suit afterward settled. </p>

<p>Right of principal to recover proceeds of orders fraudulently drawn by agent in payment of his individual debts, where identical money paid on such orders can be reached.</p> <p>H., an agent of the express company, having a right to do so by virtue of his agency, drew orders on the company and remitted them to his creditors in payment of his individual debts. The orders were received by the creditors and placed by them in the N. bank to their credit, and, tnrough the bank’s correspondent, were collected and the proceeds thereof passed into the bank’s hands. Shortly after issuing such orders, H., being a defaulter, absconded and left a large amount of debts behind him. The express company instituted suit to enjoin the bank from paying and the creditors of H. from collecting the proceeds of such orders.</p> <p>Held, H. having received no consideration for issuing such orders, and the creditors having parted with no consideration for them, the proceeds of said orders must be returned to the express company.</p>

<p>Jurisdiction of State Courts against National Bank officers for alleged deceit.</p> <p>The State Courts have jurisdiction of an action brought against the officers of ’ a National bank to recover damages on account l of alleged deceit practiced by such officers in making a false report of the condition of the bask, upon which the plaintiff claims to have relied, and by reason of which he claims to have suffered damages.</p>

<p>Every administrator and guardian is a trustee. But while the statute defines the trust which they execute, the terms of the trust in the case of executors are found in the will appointing him. Such trusts are as boundless as the will prescribes, and it is only when he transgresses these limits, or where-fraud is shown, that the court will interfere.</p>

<p>Injunction to prevent 'line of buisness name and the publication of libelous matter —A court of equity will enjoin the purchaser of a stock of goods, the good will of the business not being transferred, in carrying on the business in the name under which it was conducted by the seller, and also from advertising the said business under said name in a newspaper or otherwise, and from publishing thereby any libelous matter affecting the credit or business standing of the seller.</p>

<p>In forcible entry and detainer cases, parties have the rigbt to demand a trial by jury at any time before trial, as in civil actions generally — Sec. 6607 construed.</p>

<p>Action of keeper of goods attached against plaintiff in attachment. —A person appointed keeper of goods seized in attachment, cannot maintain an action against the plaintiff in attachment for work and services performed in caring for and keeping such goods, where such work and services were not rendered at the instance of the plaintiff in attachment.</p>

<p>A supplementary petition for personal judgment over, in a foreclosure suit, wherein judgment was rendered and the case fully disposed of, can not be maintained.</p>

<p>1. In elections in cities of the first grade of the first class, each political party is entitled to one challenger and one inspector to be present in each polling place, from the opening of the polls until the conclusion of the conut.</p> <p>2. In the country precincts of counties containing such a city, each political party is entitled to- two challengers and one inspector in each polling place, the former to be present from the opening of the poll to the close of the receipt of the votes, and the latter to remain throughout the entire •election and count.</p> <p>3. Where the law provides that a Board of Elections may issue instructions to election officers, which it is their duty to obey, and such board issues instructions which are illegal and injuriously affect the right of a candidate at an election, such candidate is entitled to an amendatory injunction restraining said board from continuing in force such instructions.</p>

<p>Where, in a proceeding in the Probate Court to set aside the adoption of a child on account of failure to secure the consent of the mother who is under none of the disabilities to consent prescribed by Sec. 3137 Rev. Stat., the court would have to grant such request, but by such proceeding the child has once been brought under the jurisdiction of the court under this section, the court will have jurisdiction over such child for all the purposes which this section has in view, and which the best interest of the child demand.</p>

On motion to dismiss 'the appeal on the ground that the appeal bond was not sufficient in amount, it was held : 1. That the finding of the amount due and the direction to pay was judgment for money, and that the appeal bond must be in a sum double the amount of the judgment. 2.

<p>Trespasser on Railroad — Liability of R. R. Co. for injury.</p>

<p>Divorce — “Any gross neglect of Duty” as .grounds for — Need not have continued for three years.</p>

<p>Conveyance to ivife having claim against husband —As to Husband’s other creditors such. conveyance good to the extent of wife's' claim against husband.</p> <p>To set aside transfer of - property from husband to wife.</p>

<p> Bastardy Proceedings under See. 5614 R. S. can only be instituted by an unmarried woman. </p>

<p>Validity of assessment, when the rede is increased by a. reduction of frontage—</p> <p>Street assessments, where the rate of the preliminary assessment is raised by reason of a reduction of the foot frontage are valid.</p>

<p>Avoidance of lease by sale of intoxicating liquors—</p> <p>A lease containing no provision for the sale of intoxicating liquors on the premises, with no parol contract providing for such sales, is not avoided by the subsequent use of the premises for the sale of liquor.</p>

<p>In a case where the defendant is accused of having unlawfully sold adulterated mustard, it is discretionary with the justice to order the State to allow an analysis of a portion of the mustard to be made, if the interests of justice demand it.</p> <p>But it should not be done, if the article to be analyzed would be thereby impaired or destroyed, for evidential purposes, in favor of the State; and it should be made, if at all, by an expert appointed by the justice, in the presence of the plaintiff’s representative, and the State’s expert, and under the oversight of some officer of the court.</p> <p>The defendant cannot dictate the selection of the expert to make the analysis.</p> <p>If the motive of the defendant in moving for the analysis is only to find out what the 'State’s case is,or if it is curiosity, or if it is vexatious, the analysis should not be allowed.</p>

<p> Liability of a donee of land for payment of existing mortgage. </p> <p>Where one person conveys real estate, encumbered with a mortgage to another, in consideration of one dollar, love and natural affection, aud other good and valuable considerations, and, in the deed, the grantor covenants a good title, except as to such mortgage, the fact that such deed is accepted by the grantee and that such mortgage is ex-ceptedjfrom the covenant as to title, willnot be regarded as an assumption of such mortgage indebtedness by said grantee.</p>

<p> Meaning of words “Pro Rata" and “Heirs". </p> <p>A testators’ will provided for the following disposition of his property, by several specific bequests as set forth in the opin ion. The residuary clause of the will orders the residue, if-any, to be divided “in a pro rata rate between the heirs named in my will.”</p> <p>In the construction of such will, Held:</p> <p>1. The words “pro rata” in the residuary clause, are equivalent to providing for an equal division among the heirs.</p> <p>2. The heirs must take per stirpes, and not per capita.</p> <p>3. The Humane Society, Widows’ and Old Men’s Homos and Children’s Home cannot be classed as heirs to share in the residum. °</p> <p>The residuary clause of the will of J. B. Corbley, of Mt. Washington, orders the residue if any, to be divided “in a pro rata rate between the heirs named in my will.” The contention is over the meaning of the words pro rata and heirs. The will gives:</p> <p>1. To the heirs not named of testator’s sister, Margaret, about S4,000.</p> <p>2. To his sister, Rebecca, if living at his death, 82,000, and if not living, this is to be divided among her four heirs, not naming them.</p> <p>3. To the heirs of his sister, Harriet, 82,000.</p> <p>4 To his sister, Elizabeth, if living at his death, 82,000; otherwise to her heir.</p> <p>5. To his brother, Samuel, 82,000, if living at his death ; otherwise to his heirs.</p> <p>6. To the two heirs of his deceased brother, Wilson, 81,000 each; and here for the first time hfe names the heirs.</p> <p>So far he has named six classes of heirs, giving one about84,000, and the others S2,000 each; but in only one case does he name those heirs and separate the amount to each. He then devises separate tracts of land to each class to whom but 82,000 is left but none to tke4,000 heir. He then gives81,000 to the Humane Society, 81,000 to the Widows’ and Old Men’s Homes, and 8500 to the Children’s Home.</p>

<p>Right to give away property to the extent of making donor destitute—</p> <p>A person is under no legal constraint from giving away his property to such an extent as to render himself destitute.</p>

<p>Confession of judgment by an attorney under warrant — Liability of husband to wife for debts contracted prior to marriage.</p> <p>It is not necessary, under Sec. 5321 of the Rev. Stats, of Ohio, that the defendant should appear in person to confess judgment, where an answer is filed admitting the indebtedness set out in the petition.</p> <p>An action will lie between husband' and wife, and debts due a woman are not extinguished by her inter-marriage with the debtor.</p>

<p>1. Under Sec. 2304, no notice of a sewer improvement is required. It makes no difference that the resolution provided for notice.</p> <p>2. Where the construction of a sewer is not a necessary part of the street improvement, the assessments for street improvement and construction of sewer should be separately provided for.</p> <p>3. Sewers are street improvements, and under Secs. 2264, and 2965, 2696, and Hartwell v. C. H. & D. R. R. R., 40 Ohio St., 155 the assessment could be made on the installment plan.</p>

<p>The word “immediate,” when used in reference to the notice in writing to be given of an accident, injury or claim under a policy of insurance means within a reasonable time considering the circumstances of each case, and ordinarily the question is one to be determined by the jury under proper instructions from the court.</p>

<p>Pleading — Where the petition states irrelevant matter, the proper motion is to have it stricken out, not to have it separately stated and numbered as a separate cause of action.</p>

<p>iS'ampies of goods' carried in sample trunk —Loss in hands of railroad •— Where a travelling agent for a jewelry house checked his trunk, a heavy sample trunk, containing samples of jewelry of great value, as personal baggage, paying for extra weight, but ^without notice to the baggage master of the railroad of the character and value of the contents, and the trunk is lost in a railroad accident, caused by the negligence of the company, the railroad company is not liable for the value of such contents of the trunk.</p> <p>Knowledge of contents by railroad agent —Appearance of trunk. — The fact that the agent of the railroad was at plaintiff’s room when the samples were exhibited, and might have seen them, but testifies he did not; nor the fact that from the appearance of the trunk,he might have known the same to be a sample trunk, are not sufficient to prove knowledge of such agent.</p>

<p>Title in the public by prescription in the use of a way — Assessable frontage,</p>

<p>Defective appliances — Latest improvements — Personal injury by employe — The allegations in the petition rhat the machine was not of the latest patent, and that if the machine had contained the latest improvement, the accident would not have happened, and that plaintiff was not aware that these late improvements were absent, are not allegations of facts from which negligence of defendants could be concluded; but would be proper in evidence to rebut defendants’ claim that they were using such machinery as parties in their line of business generally use.</p>