Volume 4 — Ohio Nisi Prius Reports

<p>Husband and wife — Agreement of separation — Support of childrenr-JQuties and Inabilities of Husband—</p> <p>1. Where a husband and wife having children agree upon a separation, and by the terms of the agreement provided that the children are to have a home for the present with a third person, and that the wife shall not remove the children from the control of such third nerson without the consent of the husband, the husband has the right to remove the children from such home at any time without the consent of the wife or of such third person.</p> <p>2. Where a father agrees with a party to pay a sum named for the board and care of his children, and the father furnishes no clothing to the children, the party supplying the children under the agreement with board and care, can recover for such clothing as he may furnish that is reasonably fit and suitable for such children. The test of what clothing is so reasonable, etc., is what the children of other parents in like situation in life and of like financial ability commonly have.</p> <p>3. To terminate such an arrangement for the board and care of his children the father may serve notice upon the person providing the same of the termination of the agreement, (if there is no provision in the agreement to the contrary), but if after such a notice the father alloVs and permits the children thereafter to remain, and board and care are continued to be furnished to the children, the father making no effort to remove the children, then he will be liable for such keeping.</p> <p>I. It is primarily the duty of the father to provide reasonably for the support and care of his minor children, if he is able to do so, both by natural law and the statutes of Ohio. The necessity for and the proper amount of care, clothing and support to be furnished the children are, under ordinary circumstances, left by law to the discretion of the father, subject, howmver, to the rule that such discretion must not be abused to the injury of the children. And when the father, being able, neglects or refuses to so provide for his children in such wise as to render it necessary for some other person to do so, then the law implies a promise or obligation on the part of the father to pay for the proper amount and kind of care, clothing and support of such minor children.</p> <p>5. Where a husband and wife enter into an agreement of separation, such an agreement will not be construed to deprive their minor children of their right of support, maintenance and culture. While the discretion is with the father primarily to select the method and way in which he shall provide therefor, the fundamental rule relative fo such matters is, that the welfare of th.e children is paramount to tbe claims of either parent, and neither the husband nor wife can be permitted, in the exercise of their discretion, to so act as to.injure a minor child in its health, comfort, enjoyment or future prospect in life.</p> <p>6. In determining whether a parent has properly exercised the discretion resting in him to provide for his minor children, all the conditions and circumstances under which the children were placed, such as their ages, health, physical condition, manner in which they had been accustomed to live, care which they before had received, character of the place to which they are taken for keeping, treatment there, etc., are to be considered in connection with the comfort, health and physical well-being of the children in the present, and their prospect or happy and useful lives in the future. « ■</p> <p>7. Where a husband and 'wife have separated, and the husband has exercised his 1 • discretion to provide a place for their minor children, the presumption is that the same is proper and sufficient; the burden of proof is upon a party alleging the contrary.</p> <p>8. Where a husband and wife have separated and the husband has not made pr'oper provision for their infant children, and the children are of such tender age as not to have the ability to act for themselves, the- wife has the right to provide for their support and maintenance until the husband does so, and for the reasonable expense of so doing the husband is liable to the person furnishing the same at the wife’s request.</p> <p>9. Where a husband and wife separated, and the husband took their children to a convent, and the wife removed them therefrom to the home of her parents, where, at her request, they were supported and maintained, and the" husband knew, or had full means of knowing, of the support and maintenance so furnished, and permitted them without objection, there to remain, receiving such care and maintenance, without providing other proper or suitable maintenance and support, the question of the liability of the father, upon an implied promise to pay the fair and reasonable value of such support and maintenance, is for the jury.</p>

<p>Vercliet — Inadequacy of Damages — New trial can not be granted on the ground that damages are too small — Sec. 5306 R. S</p> <p>1. Wherein an action, to recover damages for wrongfully causing death by negligence, the Jury return a verdict for plaintiff, necessarily finding that the death resulted from the negligence of the defendant, and that the plaintiff was free from contributory negligence, a reviewing court will not consider assignments of error based upon the exclusion of testimony offered by the plaintiff tendmg to show negligence upon the part of the defendant. Such error, even if found to exist, would not be prejudicial to the party complaining.</p> <p>2. An action to recover for wrongfully causing death is an action for injury to the person, and, therefore, by reason of the provisions of section 5306, Revised Statutes of Ohio, a court has no power to grant a new trial on the ground of the smallness of the damages.</p>

<p>Life insurance — Copies of ansioers of insured to questions must be delivered to him in his life time.</p> <p>1. Section 3621, Revised Statutes, construed.</p> <p>2. Where it is provided that the answers made to a medical-examiner by an applicant for life insurance, are to become a part of the contract of insurance, copies of such answers must be delivered by the company to the insured with his application during his lifetime.</p>

<p> Statement of a driver of a milk wagon to arrresting officers as to who owned the wagon held to be hearsay when repeated in court by the officers. </p> <p>Heard on error to Magistrate’s judgment finding plaintiff guilty of having in his possession, with intent to sell it as pure milk, one gallon of milk from which part of the cream had been removed.</p>

<p>1. Res judicata operates as no bar to an action unless the issues and parties are the same in the former action.</p> <p>2. A vendor may rescind a fraudulent sale without tendering the purchase-money; it is sufficient if he offers to pay the purchase-money or notes into court to await the determination of the action brought to recover possession of the personal property or its proceeds; and a tender of such notes at the trial is sufficient.</p> <p>3. Wherever one has a lien or security on two funds belonging to same person, and another has a subsequent lien only on one of them, the holder of the security on the two funds may be compelled to act in such a manner as not to prejudice the equity of the subsequent lien holder,so far as it would not impair his rights.</p> <p>■4. A vendor may follow the proceeds of goods fraudulently purchased from him and modern equity, having exploded the doctrine “money has no ear marks,” it is no defense that the proceeds have been mingled with other funds; the vendor may recover if he can trace them in the common fund.</p> <p>3. B sold to L. & Son 25 Bbls. of Peacock whiskey, and delivered to them warehouse receipts, and received L. & Son’s notes. L. & Son pledged these receipts with other collaterals to the A. Bank, and then made a general assignment for the benefit of their creditors. The purchase of L & Son being fraudulent, B rescinded the sale, and offered to take tip the whole loan from the A. Bank, which refused such offer. The A. Bank sold at auction all the collaterals. C purchased B’s warehouse receipts, and at the time of payment by O, B notified the bank that he was the owner of the receipts, subject to the Bank’s rights, whatever they might be, and that he held the Bank as trustee of the proceeds of them accordingly. The entries of the books of the Bank distinctly itemized the separate and several proceeds of each lot of collaterals sold, among which were those of B. The Bank having a surplus from the sale of all the collaterals of S918.00, brought an interpleader impleading B, L. & Son’s assignee, and R, who was an attaching creditor on the fund. At the hearing B tendered the notes given by L. & Sons. Held, B was entitled to the surplus as the proceeds ■of the goods fraudulently purchased by L. & Sons.</p>

<p>.Street R. R. — Power of city to remove switch in street by force without applying to court.</p> <p>'Where a street railway company, having accepted an ordinance from municipal authorities providing the terms and conditions under which it may construct and operate a line of street railway, including all necessary switches, turn-outs, etc., and where, acting under such ordinance, the company has constructed, as ¡part of its road, a switch necessary to the reasonable and proper operation of its ■road, and the city authorities, without legal proceeding, declaring the switch to ¡be unnecessary, without notice to the company, and without legal steps for a total pro tanto forfeiture of the franchise granted, tore up the switch and refused to permit the railway company to replace it, and defend an application for an injunction upon the ground that the switch is not necessary, and that the plaintiff has made an improper use of it.</p> <p>Held: First, such action on the part of the city in thus constituting its officers judges of law and fact and determining the necessity of the switch, and in enforcing its decree by force, is clearly an unwarranted interference with the contract rights of the street railway company, and such action is a trespass upon its property and an impairment of its franchise, for which the law furnishes no adequate remedy, and the company is entitled to an injunction restraining the municipal authorities from interfering with the re-laying of the switch, and from again removing it except as the result of due process of law.</p> <p>Second, It is no reason for refusing such relief that the railway company has, at times, made an improper use of the switch. Municipal corporations are not exempt from the obligation which rests upon all persons and corporations,to secure redress for wrongs by due process of law, and to refrain from arbitrary interference with the rights of others : and if the street railway company failed to perform its contract obligation, the city must seek its legal remedy. It cannot be permitted totake the law into its own hands.</p>

<p>Sleeping Car Co. — Liability for money stolen out of passenger’s clothing while asleep.</p> <p>1. Sleeping car companies are not liable as inn-keepers. Where valuables have been stolen out of the clothing of passengers while asleep, in such case the company is only liable where it is shown that there was been a want of ordinary care, and thus negligence is established on the part of the company. The fact of loss, alone, is not presumptive evidence of such negligence.</p>

<p>Bill of exceptions must be made part of the record.—</p> <p>1. Where the record fails to show that a bill of exceptions was made part of the record of the case, it can not be considered by a reviewing court — Statement in the bill of exceptions that it is made a part of the record is not sufficient; that fact must appear from the record outside of the bill of exceptions. "Móntate” as used in Ohio Statutes means calendar months, not lunar months — ■</p> <p>2. The word “months” in our statutes refers to calendar months, not to lunar months, and the rule of the English common law that “months” as used in statutes means lunar months does not prevail in Ohio.</p>

<p>On error from Justice of the Peace.</p>

<p>Return of summons by constable — What must shoio — Necessary indorsements—</p> <p>The return of summons by a constable must show that the writ served contained the necessary indorsements to give jurisdiction to the magistrate, and the failure of a proper return of the writ by the constable will invalidate a judgment by default rendered in the case.</p> <p> Presumptions in favor of correctness of writ served— </p> <p>While a return is “served” ot a summons by the sheriff in a case pending in a court of general jurisdiction will carry with it the presumption that the writ served contained the necessary indorsements, such will not be presumed in the case of a constable serving summons in a case pending before a cuurt of limited jurisdiction like that of a J. P. The record of a case in a magistrate's court must affir_matively show that he obtained jurisdiction.</p>

<p> Judgment Indexes. </p> <p>1. The clerk of the Court of- Common Pleas is entitled to receive payment from the county under Sec. 1263 Rev. Stat., for services in continuing or keeping up the general indexes of judgments.</p> <p> Rate of fee. </p> <p>2. He is entitled to eight cents only for indexing a judgment without reference to the number of entries necessary to be made or the number of parties to the judgment, plaintiff or defendant.</p> <p> Pending suit indexes. </p> <p>3. He is not entitled to receive payment from the county under Secs. 1255, 1256 and 1257, Rev. Stat. for services in continuing or keeping up the pending suit indexes.</p>

<p> ■Justice of Peace-Time after trial for entering judgment. </p> <p>1. The jurisdiction of justices of the peace to enter judgments in actions tried before them, is prescribed by section 6579, Revised Statutes, and the judgment of a justice rendered after the expiration of the time within which the rendition is expressly authorized by said section, is void for want of jurisdiction.</p> <p> ■Same. </p> <p>2. The parties to an action before a justice cannot, by agreement, confer on him jurisdiction to render judgment therein after the expiration of the period within which he is authorized by said section to render it.</p> <p>Retention of case by common pleas — When not admissible.</p> <p>3. When the justice’s judgment is reversed by the common pleas on the ground that it was rendered after the expiration of the time authorized by statute, the reversing court will not retain the cause for trial and final judgment.</p>

<p>Defective bid for sehool-house furnishing. —</p> <p>1. Alternative writ of mandamus issues when the petition Bled upon its face shows a proper case, but upon sustaining a demurrer to the petition, the alternative writ will be refused.</p> <p>2. A bid made under sec. 3988 Rev. Statutes, separately stating the labor and material in the bill with, the price of each, but containing the following provision “The above proposal includes labor and material, and is given with the understanding that it is to be accepted only as a whole” is not in compliance with the statute.</p> <p>3. The Board of Education could not, under this bid,exercise the discretion provided for in paragraphs 6 and 7 of the statute.</p> <p>4. This defect in the bid was a material one, which the Board had no right to waive.</p>

<p> Release of dower by electing to take under will. </p> <p>1. The release of dower by election to take under the will, is intended to be a release of the dower interest to the heirs at law or those entitled to inherit, and not as a means of conveyance to strangers.</p> <p>Same — What not valid release as against widow’s creditors.</p> <p>2. A widow, to whom her husband by will had left all his property, designating her as executrix, and who had qualified as such, sold by proper proceedings, real estate of her husband’s estate to pay his debts, without having elected to take under the will instead of under the law, the entry of the confirmation of the sale in the probate court continuing the case as to assignment of dower. Shortly after the confirmation of the sa’e, at the solicitation of the purchaser, and without any consideration or compensation therefor, she appeared in the probate court and formally declared her election to take under the will. Afterwards an action was instituted by a creditor who had obtained a judgment against such widow for a debt contracted by her after her husband’s death to'subject her dower in such real estate to the payment of his judgment. Held, that the election to take under the will so made by her, without compensation, did not affect her right of dower in such real property as to such creditor.</p>

<p>Fees for entering and indexing cases on Court calendar—</p> <p>1. The probate judge is not required by law to keep a book in which entries are made each day of the papers filed and proceedings taken during the day, and he is not entitled to compensation for services in keeping such book, although the same is called a “court calendar. “</p> <p>Fees for recording and indexing cost bills—</p> <p>2. The probate judge is required by Sec. 545, Rev. Stat., to record the cost bills in all cases, but there is no statutory provision fixing any fees for services in recording or indexing cost bills, and he is not entitled to compensation therefor.</p> <p>Fees for making and indexing entries in cash book■—</p> <p>■3. The probate judge is required by Sec. 1325, Rev. Stat., to keep a cash book and make entries therein, but for the same reason he is not entitled to compensation for making or indexing such entries. (Syllabus by court.)</p>

<p>Injunction — Power of court to suspend on proper showing—</p> <p>A final decree of injunction was entered, with the proviso in the decree that “it is further ordered that the operation of this decree be and the same is hereby stayed for the period of six months from the date hereof, with liberty upon the part of defendant to apply for an extension of said time” and the judgment was subsequently affirmed by the Supreme Court, neither party complaining of the insertion of this proviso in the decree. Held : That after the expiration of said six months, upon a proper showing to the court that it would'be inequitable to the defendant not to suspend the operation of the decree, the same may be again suspended for a reasonable time.”</p>

<p>Right of mortgagee of overdue mortgage to appointment of receiver, and to rents subsequently accruing—</p> <p>A mortgagee whose debt is due and insufficiently secured, has a right, under Sec. 5587 Rev. Slat, to file a petition to foreclose a mortgage and have a receiver appointed to collect the rents of the property, and he thereby acquires an equitable “ lien on the rents payable subsequent to the appointment of such receiver, superior to the right of an assignee from the mortgagor of rents payable under the lease, the assignment being made after the appointment of the receiver.</p>

<p>Contractors’ Liens under law of 1894 valid.—</p> <p>1. Section 3184, Rev. Stat. of Ohio as amended April 13, 1894, Vol. 91, O. L., 135, and known as the Ohio Mechanic’s Lien Law, in so far as it allows a lien on a building to one furnishing material or performing labor under a contract with the owner in the construction or repair of such building, is constitutional and valid.</p> <p>Same. —</p> <p>2. Said provision of said statute is separable from, and independent of. the part thereof which attempts to give such a lien to one furnishing labor and material in the construction or repair of a building at the instance of the contractor or sub-contractor, and hence may have a constitutional operation and effect, notwithstanding the part last referred to is unconstitutional and void.</p>

<p>Libel. — Suit against judge for his language from, the bench.</p> <p>1. A judge of the court of common pleas is not liable in an action for libel for his language used in deciding a cause or matter submitted to him over which the court had jurisdiction. His motives in the choice of language used in announcing his opinion cannot be made the subject of legal inquiry.</p>

<p> Riparian rights. </p> <p>1 A conveyance of platted lots which are situated upon the bank of a navigable stream, no part of the bed of the stream being platted, includes all the ripariau rights of the grantor in front of said lots to the center of the stream, although such stream is not mentioned in the conveyance. To exclude such rights they should be reserved or excepted in the deed.</p>

<p>Probate court setting aside order of sale and adjudgment of priority of liens at subsequent term — What will amount to final order—</p> <p>In an action instituted by the widow as executrix, in the Probate Court, to sell her testate’s land, she appeared as w.idow, by attorney, joining in the prayer, and was fully aware of the priority of liens so determined by the court and that the order of the court placed her dower and allowance for a year’s support after the payment of certain liens. After the land was sold under this order of the court, sale confirmed and deed ordered, the widow, at a subsequent term of the probate court from the one in which the order of sale etc., was made, moved the court to set aside that order and make a new order adjudging the priorities of liens giving the widow’s dower the first lien, which was done. Held, error. The first order of the probate court was a final order, and could not be set aside or modified at a subsequent term except by proceedings under Secs. 5351 and 5365 Rev. Stat.</p> <p>Same — Necessary parties—</p> <p>It is the duty of the parties instituting the suit, and not of the court, to see that all the necessary parties are brought before the court, and the coming in of a party, after final order, and at a subsequent term will not authorize a vacation or modification of the final order on the motion of one of the original parties with whose consent such final order was entered, except in strict compliance with the provisions of the statute relating to such vacation or modification of final orders or decrees.</p>

<p>Prize-fight — Definition of—</p> <p>[The Supreme Court in Seville v. the State, 19 Ohio State Reports, having refrained from making any but a general definition of the term “prize-fight,'’ which leaves the question not eutirely free from difficulty to nisiprius courts in application to specific cases, the following excerpt of a charge to a jury, is. by request, published. ]</p>

<p>Contractor's Mechanics Lien under statute of 1894 valid — It is only as to subcontractors’ liens that the statute of 1894 is unconstitutional.</p>

<p> Action by holder of dower interest to compel holder of mortgage on the land to foreclose mortgage.— </p> <p>A court of equity will not entertain an action by the holder of a dower interest to compel the holder of a mortgage on the land to foreclose his mortgage and have the land sold to satisfy his claim, against the protest of the holder of such mortgage and the heirs who hold the legal title to the land.</p>

<p> Assignments of mortgages should be recorded. </p> <p>Where the assignee of a mortgage on real estate, fails to have the assignment recorded, and the mortgagee cancels the mortgage of record, the mortgage lien of such assignee will be postponed to the rights of subsequent bona Hde purchasers, mortgagees, and assignees of mortgages, without notice of such assignment.</p>

<p>Evidence — Error in written contract by mutual mistake of parties — Admissibility •of testimony to change after third parties without notice have become interested.</p> <p>On December 1, 1888, II. and the Standard Publishing Company entered into a written contract, by which the former was to be employed by the latter company for a period of three years, with the privilege of two additional years. The contract therefore expired December 1, 1891, unless renewed, in which case it expired December 1, 1893.</p> <p>■OnJJune 3, 1892, the same parties entered into another contract in writing, for similar services, and in this contract it was provided that “this agreement is to continue in force during the period of five years from expiration of the present contract-between said parties, dated December 1, 1888.”</p> <p>On April 22, 1895, by consent of all parties, S. was substituted in place of H. as the party contracting with the Standard Publishing Company.</p> <p>Held — That the Publishing Company, as against Simmons, was estopped from showing by parol evidence that a “present contract” was not in existence when the contract of April 22, 1895, was entered into, unless it could show also that Simmons was aware of this fact; and that in the absence of such showing the contract of Simmons would not expire until December 1, 1898.*</p>

<p>As to the improvements of alleys twenty feet or less in width.</p> <p>The authority and jurisdiction of the Board of Administration in proceedings to improve alleys of twenty feet or less in width in cities of the first grade, of the first class, is made exclusive by the act of March 30, 1893 (90. O L., 258).</p>

<p>Petition — Appeal must state fact of appeal—</p> <p>The petition on appeal in the Common Pleas from a J. P., must aver the fact that the case comes into Court on appeal.</p> <p>Demurrer searches record. —Transcript from J. P. as part of record — ■</p> <p>A demurrer searches the record as pleaded. The transcript and original papers from J. P., in appeal cases, are not part of the record as pleaded.</p> <p>The decisions of Circuit Court of one circuit, although entitled to .great respect, are not binding authority for the lower courts, especially not for those of a different circuit.</p>

Heard on motion to quash appeal from justice of the peace court, because the claim and recovery was less than $20.00, and tried by a jury.

<p>Adulterated food — Sale—Evidence to establish—</p> <p>Where it appears from the evidence that defendant in a prosecution under the Adulterated Pood laws declined to accept pay from the agent of the state,, and finally only accepted some payment on their persuasion, such facts do not constitute sufficient evidence of a sale made by defendant.</p>

<p> Assessments against mortgage and deposit members of an insolvent building association under the Act of 1886, known as the Moore Law, and the amended Act of 1886, known as the Kue.hnert Law, and the amendment of 1889, known as the Goreoran Act. </p> <p>Every member of a building association is liable to contribute by assessment in the same proportion in which he would be entitled to share in any profits; and when, under the present law, the association limits by its constitution the mortgage members from sharing in any profits except the dues paid in to the credit of capital during each current year, so also, is their liability to contribute to the losses and expenses of the association limited thereto.</p>

<p>^ Will — Testamentary capacity — Parties propounding will must malee out prima facie ease of testamentary capacity. —</p>

<p>On motion to require plaintiffs to separately state and number causes, of action in the petition.</p>

<p>Dower — Divorce by innocent wife on ground that husband has toife living— Marriage absolutely void, and no rights of aoiuer accrue.</p> <p>The right of dower arises only in cases of lawful marriage, and where a woman is married to a man who has another wife formerly married, living' at the time; theD such marriage is no lawful marriage, is not voidable only, but absolutely void, and she acquires no right of dower in his realty.</p> <p>Bee. 5699 does not apply to divorces on that ground, although such second wife was without any fault on her part.</p>

<p>Jurisdiction — Defined.</p> <p>1. The jurisdiction of a court is the power conferred upon it by law, to hear, determine and render final judgment in a cause, and to enforce its judgment by legal process.</p> <p> Appellate jurisdiction of Common Pleas limited to cause of action tried below. </p> <p>2. The court of common pleas of this state is a court of general original and appellate jurisdiction. .When a case is appealed to the court of common pleas, from a judgment of a justice of the peace, its jurisdiction over it is appellate only, and limited to the cause tried in the justice’s court.</p> <p>Same — Departure on appeal from cause of action below — When appelate court retains jurisdiction.</p> <p>3. When the cause tried and appealed is within the original jurisdiction of a justice of the peace, and the plaintiff departs from the cause there tried and appealed, and sets up in his petition another and different cause of action, which is also within the exclusive jurisdiction of a justice of the peace, the court of common pleas acquires no jurisdiction of the cause set up in the petition, although the defendant has appeared and plead to its merits, by filing a motion to make the cause more definite and certain, and - obtained a ruling of the court upon it.</p> <p> Same. </p> <p>4. This action is rightfully in this court by appeal, and it has acquired jurisdiction thereby of the cause appealed, but it has no jurisdiction of the cause of action stated in the Third Amended Petition. Held, the motion to dismiss the appeal is overruled and the motion to strike the Third Amended Petition from the files is sustained.</p>

<p>1. Interest is of two kinds: (1). That which is given by reason of the contract providing for the same. It is a substantive part of the debt, as much so as the principal, for both were contracted for. (2). That which is given by way of damages and is incidental to the debt.</p> <p>2. Where the interest is contractual, the acceptance of the principal by the creditor does not bar the right to recover the interest; but where the interest is given by way of damages, the acceptance of the principal isa waiver of the right'to recover interest.</p> <p>3. The above principles are not affected by our statutes relating to interest which in the main are intended to fix the rate of interest.</p>

<p>Mining Go. building railroad — Change of charter as to location of principal office of such corporation must be made under sec. 3866a, and not under sec. 3311 Mev. Stat.</p> <p>A manufacturing and mining company, incorporated under the laws of this state, which, under section 3866, builds a railroad to connect its mine or manufactory with another railroad, canal, etc., after that so far as such railroad only is concerned, is controlled by section 3311, providing for the manner in which the location of its principal place of doing business may be changed. But a change in the location of its principal place of business, made under section 3311, only refers to the railroad it has constructed under such section 3866, and does not affect the location of its principal place of business so far as its mine or manufactory is concerned, the location of which can only be changed in compliance with section 3238a, Revised Statutes. An attempt, therefore, by a mining and manufacturing company, who has built such railroad, to amend its charter by changing the situs of the corporation from one county to another under section 3311, and not in compliance with section 3238a, would be ineffectual except as to such railroad, and a suit against such corporation after such attempted change, is properly brought in the county designated as the situs of such corporation in its original charter.</p>

<p>Breach of contract — Measure of damages.</p> <p>The plaintiff, an electric light company, entered into a contract with the defendant by which, for a specified period of time, the plaintiff agreed to furnish, and the defendant to accept sufficient electricity to light a hotel under the management of the defendant. Before the expiration of the time specified, the defendant notified the plaintiff that it would not receive the electric current from plaintiff, and severed the wires connecting the plaintiff with its hotel. The plaintiff notwithstanding such action and notice by the defendant, continued to furnish electricity in its wires up to the point where they had been severed by the defendant. At the expiration of the contract the plaintiff began an action against defendant to recover the full amount which would be due from defendant as if it had accepted and used the electricity as provided in the contract.</p> <p>Held, That the recovery of plaintiff was limited to the amount of damages it had suffered by the breach of the contract,and that it could not recover the full contract price of the electricity, which under the contract the plaintiff'was bound to furnish and the defendant to accept.</p>

<p>Prosecution — In definiteness in charges of affidavit--</p> <p>By section 10 of our Bill of Rights, the defendant in a criminal prosecution is entitled' to a definite statement of the nature and cause of accusation against him, and • this right cannot be impaired by the legislature.</p> <p>In a prosecution under the adulterated food law, for having for sale a drug which “differed from the standard of strength laid down in the U. S. Pharmacopoeia, without stating whether such drug was below or above the strength, and which of the constituent elements of such drug so differed, is insufficient for - indefiniteness.</p> <p>An affidavit in the words of the statute where the words of the statute are not sufficient to define the offense, is not sufficient.</p>

<p>1. A covenant in a lease, which restricts the property leased to certain specified! uses, is a covenant that runs with the land.</p> <p>2. If the covenant is one that runs with the land, the word “assignee”, is not necessary to make the covenant effective as to all persons to whom the property or lease passes.</p> <p>3. A grantor may impose restrictions upon the use or enjoyment of land, providing, such stipulations are not for an illegal purpose.</p> <p>4. The acceptance of rent by a lessor, after a violation of such a covenant, does not. estop him from asserting his right to prevent thefcontinued violation of such covenant.</p> <p>5. The continued violation of such a covenant constitutes a continuous cause of action, and may be enjoined in equity unless it appears that the plaintiff suffers no damage therefrom.</p>

<p>Land Contract — Record not necessary betiveen the parties.</p> <p>The execution of a contract being proved or admitted, the effect to be given thereto does not in any manner depend upon it being recorded. A contract for the sale of land or an agreement for an interest in lands, as between the original parties thereto, is effectual without record. In such case, equity regards that as done which ought to be done, and where an agreement of that kind is made, a court proceeding upon principles of equity will carry it into effect according to the intention of the parties.</p> <p>Land Contract — Intermediate conflicting deeds—</p> <p>Where a deed is given, in pursuance of a land contract, it is presumed to secure and perpetuate all rights conferred by the contract, and an intermediate conflicting deed given by the same grantor has no priority.</p> <p>Merger — Definition.</p> <p>Merger is not an equity doctrine. A leading feature of the'Iaw is that merger will never be presumed against the equities of the parties. To work a merger which shall have such effect, there must be an unequivocal act of the party to be in juriously affected by it, absolutley and irrevocably establishing the right to be merged.</p> <p>Record of law in wrong book — Mistake of Recorder.</p> <p>Where a lease is not recorded in the book of leases, but it is recorded in a public record entitled “Miscellaneous Records,” kept in the recorders’ office, the fact that the recorder recorded it by mistake, possibly, in a volume entitled “Miscellaneous Records,” instead of the volume of leases, ought not to have the effect of excluding it from consideration as evidence in a case between the parties.</p> <p>Owner permitting R. R. to bé built on his land — Acquiescence.</p> <p>The owner of land who stands by, without objection and sees a public railroad constructed over it, cannot, after the road is completed, or large expenditures have been made therecn upon the faith of his apparent acquiescence, reclaim the land, or enjoin its use by the railroad company. In such case there can only remain to the owner a right of compensation, and where the terms of a grant of right of way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same legal effect as if it had been duly described in the terms of the grant.</p> <p>Estoppel in pais — Definition.</p> <p>The estoppel consists in holding for truth a representation acted upon, when the person who mado it, or his privies, seek to deny its truth and deprive the party who acted upon it from the benefits obtained. To work an estoppel there must be prejudice to the party claiming it,and also fraud or bad faith, or their equivalent, gross negligence, in the party to be estopped.</p> <p> Former adjudication. </p> <p>To make the defense of former adjudication available, it must be made to appear that the subject-matter of the action, and that the parties are the same. The question is not what the court might have decided in the former action, but what the court did, in fact, decide, as shown by the record.</p> <p>Stale equity — Length of time not test of staleness.— Rules of stale equity not applicable to this case.</p>

<p>A will once offered for probate, and probate refused, may be subsequently repropounded by parties interested in the will, notwithstanding such refusal, where it appears that no notice was served upon such parties that the will would be offered for probate.</p> <p>Section 5931 does not destroy the right to re prepound a will. Parties aggrieved have concurrent remedies, either by appeal or byre-offering the will for probate upon new evidence.*</p>

<p> Fixtures— </p> <p>Whether property doubtful in its character, is real or personal,to make it real there must be: 1. Actual annexation to the realty, or something appurtenant thereto. 2. Appropriation to the use or purpose of that part of the realty with which it is connected. 3. The intention of the party making the annexation to make the article a permanent accession to the freehold — his intention being inferred from the nature of the article affixed, the relation and the situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made.</p> <p>Same — Brewery—</p> <p>Steam pumps, large frumentum tubs, copper and iron bottoms, copper grant and pfat, a copper strainer, a large steam kettle, the large vats in the cellar, and the fermenting tubs, although large and cumbersome, and extremely difficult to remove, and other articles of like character in a brewery where it appears that these articles were attached and connected in such a way as to be capable of removal, although they were all parts of one general scheme and machinery for brewing, held, not part of the realty.</p>

<p>Promise to pay debt of another — Statute of Frauds — Statute—Original Credit.</p> <p>1. Whether or not a promise involving the payment of the debt of another falls within-the slatute of frauds depend upon the solution of the question whether it is an original undertaking, or collateral and conditional,</p> <p>2. If the promise is an original undertaking, founded on a legal consideration, it need not be in writing; if it is collateral and conditional, it must be in writing signed by the party to be charged.</p> <p>3. Whether the promise is original or collatteral depends upon the true intent and meaning of the parties to be gathered from all the circumstances of the case.</p> <p>4. The true test is, to wtom the credit was given. If the credit was given to the promissor. the promise is original and not within the statute ; iftohim for whose debt the promise was made, the obligation is collateral and falls within the statute.</p> <p>5. Important evidence of the intention of the parties is found in the method in which the promissee has entered the transaction in his books.</p> <p>6. If the promise is made at the instance and for the benefit of the promissor, the agreement need not be in writing signed by him, although incidentally it involves ' the payment by him of money furnished another by the promissee at his request.</p>

<p>An agreemenst between the owner and the head contractor that no suit shah be brought until all lien notices shall have been paid, does not prevent sub-contractors from maintaining suit for money still due under the contract.</p> <p>The dismissal of a suit by the head contractor against the owner, on the ground that there is nothing due him, is not a determination against claims of subcontractors upon the fund still in the owner’s hands.</p>

<p> Substitution of other property for that described in chattel mortgage— </p> <p>Other property than that described in a chattel mortgage can not be.substituted by agreement of the parties.</p>

<p>Only a prima facia case of testamentary capacity need be made out by the proponents of a will to secure its probate.</p>

<p>Extra Compensation to executors — When, and for what it will be allowed — Contests over wills— Counsel fees—</p>

<p>Contempt of court — Publishing article attaching character of court.</p> <p>Tt is a contempt of court for a party to cause an article reflecting on the character of the judge and his action in the trial of a certain case to be published in a newspaper of general circulation in the city and county where the court was in session, which newspaper as he knew, is kept 1'or sale and is sold in the court-house in said county and city at the news stands located therein, to citizens going in and out of said building.</p> <p>Same — “In presence of court’’ defined.</p> <p>Neither place nor distance from the court determines whether or not the act complained of is done constructively in the presence of the court; but if the act is of such a character, and done under such circumstances as that naturally its effect would be felt in the actual administration of jus tice, then it is as much done in the court’s presence as if the person was at the time of doing the act actually in its presence.</p> <p> Sec. 14 of Bill of Rights not applicable. </p> <p>Proceedings for contempt are not controlled by the 14th section of the Bill of Rights, and no information supported by affidavit is required.</p> <p> What will constitute contempt of court. </p> <p>Two things must concur to make an act done by an person a contempt of court. It must have been done either actually or constructively .in the presence of the court, and it must obstruct the administration of justice.</p> <p> “Administration of justice” defined. </p> <p>The term “administration of justice” means something more than the mere trial of cause. It includes everything connected with the determination of the rights of person and property, every agency provided by law for the accomplishment of that purpose, and every step in the proceedings and process by which such determinations are embodied in a final determination therein, according to the established'law of iheland.</p> <p> “Obstruction of administration of justice” defined. </p> <p>An obstruction to the administration of justice, is anything which interferes with the proceeding or process of the court, by stopping the same, or which is calculated to impair the capacity of the agencies employed for that purpose to act impartially between all parties interested therein.</p> <p> Not limited to parties to an action. </p> <p>Punishment for contepmt has never been limited to parties to an action pending in the court which is the subject of the contempt.</p> <p> Question whether language is contemptuous not admissible. </p> <p>A judge will never for a moment, stop to hear an argument from such persop,as to whether or not the language which he had thus used was contemptuous or not.</p> <p> Professional advice before publication. </p> <p>The fact that before its publication a professional opinion was given that the publication would not be a contempt, does not change the essential character of the defamatory article, nor relieve the respondent of responsibility for its origin and disseminatiton.</p>

<p>“Other Agency" in See. 4403 Rev. Stat. construed.</p> <p>The words “or other agency” in Sec. 4403 of the statute regulating the practice of medicine in Ohio, must be construed with the words “drugs and medicine” in the same section to make them sufficiently definite and certain to indicate what is and what is not a crime.</p> <p>Construction of statute — Rule.</p> <p>Where particular words are in a statute followed by general words, the general words are restricted in their meaning to objects of the like kind with those specified.</p> <p> Practice of Osteopathy. </p> <p>The practice of Osteopathy is not within the prohibition of the statute regulating te practice of medicine in Ohio.</p>

<p>After verdict for defendant on the cause of action set out in the petition, plaintiff can not have “judgment non obstante veredicto” on a new and different cause of action disclosed in the answer.</p>

<p>A non-resident corporation making sales in this state while engaged in inter-stace commerce, is not required by Sec. 148c. Rev.' Stat., to secure a certificate from the Secretary of State before it can sue in an Ohio court on a business transaction done in this state, and in its petition in such a suit is not required to aver that it is not a foreign corporation such as is required to comply with that statute.</p>

<p>An administrator or trustee under a will can maintain a suit to construe the will if there is anything to construe.</p>

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

<p>Heard on demurrer.</p>

Heard on application to set aside and striue from the files the deed of assignment filed by the Consumers’ Ice & Refrigerating Co.

<p>It is not carelessness for the County Auditor to deliver a warrant to the agent of the-party in whose favor it is drawn although such agent has no authority to collect in. cash.</p> <p>But the payment of such a warranty by the County Treasurer to such agent on his unauthorized endorsement is gross carelessness and at the peril of the Treasurer.</p> <p>The remedy of the party in whose favor the warrant was issued is an action for damages by reason of the carelessness of the Treasurer in paying it on a fraudulent endorsement, the measure being the amount of the warrant, with interest.</p>

<p>Sec. 917 of the Revised Statute, constnied—</p> <p>The financial transactions of the Board of County Commissioner, under sec. 917, of the Rev. Stat., are the official acts of the board in the receipt or disbursement of the public moneys; a detailed report of such financial transactions, as required by said section, is one which must show the date, the amount, from what source received, or to whom, and for what, each payment of money is made; and the county commissioners have no discretion under said section as to what said report shall contain.</p> <p> The Attorney GeneraI a proper pevson to briny the suit— </p> <p>In an action to compel the county commissioners to make a detailed íeport in writing of their financial transactions, as required under s< c. 917, the state being the paity beneficially interested, the Attorney General is a proper officer to prosecute the action.</p>

<p>1. The writ of mandamus will not issue upon the information of a private citizen to secure the enforcement of a purely public duty, under sec. 6744, of the Rev. Stat., which provides, “It may issue on the information of a person interested.”</p> <p>2. The duty enjoined by sec. 917, of the Rev. Stats., upon the county commissioners, to cause their official statement, together with the report of tbe examiners, to be published in a compact form for one week, in two weekly newspapers of different political parties printed in the county, is a public duty, and must be enforced by some public officer charged with the duty of seeing that tbe laws are executed.</p>

<p> Revivor of action on appeal from determination by the probate court of amount due from an administrator. </p>

<p>Notice as to appropriation of easement for a slope to support street — The plaintiff, who was the owner of property abutting upon a street which the city sought to improve, received from the city authorities, in the cause of the proceedings made necessary by the statute, the following notice:</p> <p>“You are hereby notified that the city council of the city of Cincinnati has, by resolution adopted Febrary 20, 89, declared it necessary to improve Baltimore avenue, from Western avneue to Casper street, by grading, setting curbs, and crossings, flagging gutters, building the roadway and constructing the necessary culverts, drains and retaining walls.</p> <p>“The costs thereof will be assessed per front foot on the property boundnig and abutting thereon according to the laws and ordinances on the subject of assessments.”</p> <p>Held : That this notice was not sufficient to inform the plaintiff that the city contemplated appropriating an easement in his property for the purpose of a slope which would support the street; and therefore by failure to file a claim for such damages the plaintiff did not forfeit his right to recover the same.</p>

<p>A wall built along the side of a lot by the owner thereof to protect it against an adjoining lot lying ten feet higher, but located entirely on such lower lot and two or three feet from the line thereof, may be torn down by the owner of such lot, and the earth between such wall and the line of the adjoining lot removed. And the owner by such higher lot can not claim title by prescription to the wall when the same has stood more than twenty-one years, without a grant of such easement cf lateral support.</p>

<p>Where the appeal bond states ■ that the surety will pay if judgment is adjudged against appellants; execution against the appellant and return “nogoods” is not necessary as a condition precedent to maintaining an action on such bond.</p> <p>Where a re-delivery bond is given in the suit below, and afterwards, for appeal, an appeal bond is given, the defendant on judgment in his favor in the appellate court, need not first pursue the re-delivery bond, but may sue on the appeal bond, when the liability accrues; the amount of which is provided by Sec. 6593a Rev. Stat.</p> <p>In such case, was the re-delivery bond wiped out by the appeal bond, Quere?</p>

<p>Where farm lands are leased for a term made up of calendar years, with the rent payable at fixed periods therein, in the absence of other testimony, the mere fact that the land is to be farmed will not con-' vert the rent into emblements in contemplation of Rev. Stat., 6026.</p> <p>As between the executor of the owner of the fee and her devisee, the devisee, is entitled to all tents becoming due after the death of the testatrix.</p>

<p>Bequests subject to collateral inheritance tax — The charitable bequests void.</p>

<p>1. In an action brought by the City of 'Cincinnati against the Cincinnati Inclined Plane Railway Company a decree was ■entered by the Superior Court of Cincinnati m general term, perpetually enjoining the defendant company from operating its line •of street passensger c^rs, but which provided that the operation of the decree should be stayed for six months from the date thereof, with liberty on the part of the •defendant to apply for an extension of said time.</p> <p>This judgment was affirmed by the supreme court and a mandate issued accordingly. The superior court of Cincinnati at special term, to which this case had been remanded, on application of the defendant for a further extension of time, ordered that the operation and enfocrement of the decree of injunction in the decree be suspended lor six months, with leave to apply fo a further extension thereof.</p> <p>Proceedings were then instituted by the •Cincinnati Inclined Plane Railway Corn-been made a party, and filed an answer and •cross petition therein, from a threatened interference, notwithstanding the order of the court, with the' operation of its line of street railway during che period of said .stay. i pany to enjoin the plaintiff and the Cincin- I nati Street Railway Company, which had j</p> <p>Held : That the court in the exercise of its inherent power to enforce its own orders will restrain the parties to the action, upon a proper showing, from attempting by force or otherwise to interfere with the operation of the defendant’s railway -until the expiration of the stay theretofore granted.</p> <p>2. In such case the court will not take possession of the defendant company’s line •of street railway and operate or control the same through a Receiver during such stay, •especially when it appears that the defendant company is in the successful operation •of its railway and has even extended its line.</p>

<p>The act of the legislature passed February 27th,1896, (92 Ohio Laws 44, ) being an act to regulate the practice of medicine,” does not transgress Sec. 10 of Art.l, or Sec. 1-cf Arh 4, of the United States Constitution, or Sec. 1 of the Fourteenth Amendment to the United States Constitution, or Sec. 1 of Art. 4, or Sec. 16 of Art. 2 of the Ohio Constitution. It is in entire harmony with all these constitutional provisions.</p>

<p>Action for sales of liquor, under Winn Laxo, 91 O. L. 300 (1894. ¡ — Definitions of the several provisions of the Winn lato.</p> <p>Where the jury finds that the lessee kept a house of ill fame on the premises and sold liquor therein,and judgment for the penalty is rendered accordingly against the lessee, such judgment is not a lien on the property when the jury also finds that the owner did not know that the house was so kept.</p>

<p>The common law doctrine of lateral support has been abrogated in Ohio by the amendment of section 2677, Rev. Stats., passed May 9th, 1894, (91 O. L. 210.), in cases where the provisiones of the statute are complied with.</p> <p>Section (8223-84), Smith Benedict’s Statutes, permitting the owner of a lot in a city of the first grade, first class, to excavate twelve feet below the established grade’ of' the street whereon the lot abuts, without reference to foundation walls on adjoining lots, is a general law, and as its operation is restricted to certain localities, it is in conflict with Sec. 26, Art. 2 of the constitution.</p>

<p>Co-Tenancy — Adverse possession of one co-tenant against, the other — Presumption-Ancient grant—</p> <p>Where real estate originally purchased by J. H. S. and F. W. S. in 1842, the title being taken in the name of both parties, has always been in the possession of J. H. S. and his heirs since the time of the purchase, and said property has been improved, the taxes upon the same paid,and numerous overt acts o.f ownership exercised over the same, since 1842 to 1896, indicating an ouster of F. W. S. by J. H. S. and his heirs; in a suit to quiet title as against the heirs of F. W. S. after such lapse of time,</p> <p>Held, that as a presumption of ancient grants and deeds grows out of long, uninterrupted possession of property, length of possession being the great leading fact in presuming grants and deeds, a court of equity will presume a grant from F. W. S. to J. H. S., and will quiet the title to the same in the heirs of J. H. S.</p>

<p>County Surveyor — Fees for services on county bridges.</p> <p>A county surveyor who renders services in the construction of repair of county bridges, at the instance of the County Commissioners, pursuant to the statute of 1891, (91 Ohio Laws, 397) is not entitled to such fees as may be agreed upon by and between the said Commissioners and him. Being employed by the day, he can not be legally paid more than S1.00 per day, under section 1183 of the Revised Statutes. Hence, an action to recover the excess over SI.00 per day, which was paid to him, wall lie in favor of the Commissioners.</p>

<p>What constitutes a judgment — Control of a court over its own judgments during the term.</p> <p>1. To constitute a judgment under our code,the same must be entered of record before it has any validity.</p> <p>2. The court has full power and control over its own judgment during the term,and may vacate, modify or totally disregard its oral opinion or judgment.</p>

<p>Homestead exemption — Debtors’ rights- -</p> <p>Heard on Appeal of Asa R. M.ettler.</p>

<p>Payments to a building association by share-holders — Burden of proof.</p> <p>The constitution of a building association provided that: “All money must be collected and paid out in legal money. It is the duty of every member to hand to the Board of Directors the exact amount in their receipt book. The company is not responsible for any money paid to an officer of the company except paid during the regular office hours and to the authorized officers of the company.” And further provided that: “All the money which is paid to the company must be received by the Board of Directors in the presence of the first secretary, and the directors shall be responsible for the exactness of the same, and shall deliver it immediately to the treasurer.”</p> <p>The association having gone into the hands of a receiver, it was discovered that the first secretary had for a number of years been guilty of all manner of irregularities and frauds, and the receiver rejected a large number of the claims presented by the depositors. In sustaining the action of the receiver, the court held : .</p> <p>1. No share-holder is entitled to credit for payments made except those made in cash at the usual place of business of the association at the hour fixed by the by-laws for the receipt of dues, and made while the Board of Directors was in session. No officer was authorized to receive payments at any other time, place or manner.</p> <p>2. Payments made otherwise are nevertheless good if the money actually came to the association.</p> <p>3. The burden of proof is upon the claimants to show payment made according to law, and this burden is not sustained by the mere introduction of the pass book, showing credits to the amount claimed.</p> <p>4. The rules which govern the dealings between a depositor in a building association and who is familiar with the limitations imposed by the constitution upon its officers, are different from the rules which govern the dealings between third persons and officers of corporations where such third persons are not aware of any restrictions upon the apparent powers of such officer.</p>

<p> Receivers for building association. </p> <p>The court has no power on the application of the directors of a building association,as such, and who assert no individual rights in the property of the corporation, to divest the stock-holders, without notice or consent, of the control of their property and place it in the hands of an officer of the court for management and administration.</p>

<p>Certificate of stoclc — Assignment—Title— Delivery—</p> <p>1. A certificate of stock in a corporation so far partakes of the nature of a chose in action that an assignment of it maybe made in equity.</p> <p>2, An assignment upon valid consideration may be made by mere delivery, an endorsement or instrument in writing not being necessary to pass the title.</p> <p>3. Where the transferer intends to part with his title to the transfeiee upon valid consideration, but has failed, neglected or refused to endorse the certificate, he, or after his death, his personal representative, may be compelled in equity to make the endorsement,so as to enable the transferee to obtain a transfer of the shares to himself on the books of of the corporation.</p> <p>4, Whether such delivery would be effective as a gift inter vivos, quaere?</p>

<p>1. A person can not own by grant or devise property and withhold the same from the payment'of his debts</p> <p>2. A trust may bo created by a testator, for the benefit of his child, by which creditors of the child can not subject the same to the payment of debts, but to create such a trust the title, either legal or equitable, or income from the trust, must not be vested in the child or placed under its control.</p> <p>3. Trustee under a will, unless excused by authority of court, is bound to perform his duties as directed by the testator.</p>

<p>The act of March 30th, 1893, (90 V. 258, Local Laws) familiarly known in Cincinnati as the “The Alley Law”, is applicable only to cities of the first grade and first class, and provides that the Board of Administration in such cities shall have power to improve-alleys twenty feet or less in width without the action of council or concurrence of the-Board of Legislation. '</p> <p>Said law and other laws applicable to the improvement of alleys in said city, provides that lots abutting upon a street may be assessed according to the abutting feet, whether corner lots or not.</p> <p>Held, that neither said alley law, or the feature as to the assessment of corner lots, is in contravention of sec. 26, art. 2, of the constitution which requires all laws of a general nature to have a uniform operation throughout the state.</p> <p>Notice by publication in the making of a street improvement, without personal notice to the property owner to be assessed, is not in violation of sec. 19, act 1 of the constitution, which declares that private property shall ever he held inviolate.</p>

<p>Contributory negligence• — “Passenger” defined — " Highest degree, of eare,” is the care possible under the circumstances — “Accident” defined — Burden of proof — Measure of duty of children to use care — In fixing damages, the pecuniary injury of each beneficiary is to be considered, and whether one of them has been guilty of contributory negligence—</p>

<p>In a suit for recovery of a commission for the sale of real estate, the failure of the owner to incorporate into the contract with the intending purchaser, found by the agent provisions which make it binding, does not militate against the agent’s right to recover.</p>

<p>, 1. When a referee is ordered to report his findings on or before a day certain fixed by the court, he has no authority after that time to hear witnesses, make findings, or pass on exceptions to his report or on motions for a new trial. His proceedings after'that time are absolutely void, and form no basis for any judgment or order of the court.</p> <p>2. The mere fact that after the day fixed and before the report was filed, an interested person appeared and participated in the proceedings, will nof estop such person from afterwards objecting to the report on the ground that the referee had no power to. make it.</p>

<p>Owner and contractor — Removal of dangerous walls—</p> <p>Where it does not appear affirmatively that a bill of exceptions was submitted to opposing counsel for examination not less than ten days before the expiration of the fifty days limit, it will be presumed, in the absence of a showing to the contrary, that such was the fact, and that the judge, there fore, acted within the-scope of his authority in allowing and signing it.</p> <p>Where the walls of a building have become dangerous, and a contractor is employed to remove them, the owner is liable for the acts of the contractor as in the case of master and servant.</p> <p>Where such walls are cracked and weakened and are a menace to persons and property in the vicinity, the owner is bound to exercise a very high degree of care in removing them ; and in the case at bar, the facts bringing the case within the scintilla rule at least, the question of negligence should have been submitted to the jury.</p>

<p>Jurisdiction — Endorsement of a note by a corporation — Secret inchoate preference—</p> <p>1. The common pleas court has. and the court of insolvency has not, jurisdiction in a proceeding to set aside a conveyance made to hinder, delay or defraud creditors.</p> <p>2. A note endorsed by a corporation, and evidencing a loan from a bank, the proceeds of which went to an individual with the bank’s knowledge, is wholly ultra vires as to the corporation.</p> <p>3. There is no doubt that a going,solvent corporation may give a valid security to its creditor; but to say that a corporation can create and give to one of its creditors a secret inchoate preference, and let its other creditors continue and extend credit to it, and then after insolvency, in the very article of collapse and assignment, upon a preconcerted signal given, such creditor can come in and make such preference absolute and settle down on the assets of the corporation to the exclusion of other creditors, would be to violate the established rule of‘this state as to failing and insolvent corporations giving preferences, to ignore the doctrine of the case of Rouse, trustee, v. Merchants’ National Bank, 46 Ohio St. , 493, and to permitan evasion of the principles therein laid down as determining our policy in this regard.</p>

<p>Explosions of sewer gas or some other substance in a vault.</p> <p>In order to entitle a plaintiff to recover for an injury, there must be some evidence tending to support the issue and to show that the negligence complained of brought about the injury.</p>

<p>A non-suit can only be granted where no evidence is introduced by the plaintiff tending to support the issue, or where it is such as to show clearly that the plaintiff has no cause of action.</p>

<p> Leaseholds with restricted covenants. </p> <p>1. If a covenant in a lease restricts and qualifies the estate relative to the mode of its use, enjoyment or to the manner of its occupancy, is not unreasonable or unlawful, and the lease clearly shows the intention of the contracting parties to annex it to and make it appurtenant to tne leasehold estate, it runs with the land, and the assignee of the lessee is bound by it, although he is not named in the lease. A fortiori, if he is named, he is bound.</p> <p>2. But whether such covenant technically at law runs with the land or not, equity will enjoin the assignee of the leasehold, if he have notice of it when he acquired the title, from violating its stipulations.</p> <p>3: If the.covenant appears in any instrument constituting a muniment of title, the assignee of the .easehold will be conclusively presumed to have notice.</p> <p>4. A lease for ninty-nine years, renewable forever contained a covenant, stipulating, among other things, that the “demised premises or any part thereof, or any building thereon,shall not, ataDy time hereafter, be used or occupied * * * for a blacksmith shop * * or “for any other purposes than private dwelling houses', without the written consent of the trustees of Lane Seminary.” The covenant was between the lessors (trustees of Lane Seminary) _ and their assigns, and the lessee and his assigns.</p> <p>Held: That the covenant runs with the Iqnd : that a farrier is a blacksmith under the terms of the covenant, and that equity, at the instance of the assignee of the reversion, will enjoin the assignee of the leasehold from carrying on the business of a blacksmith on the premises.</p>

<p>Injunction will not Beat the suit of a taxpayer and resident to restrain the collection •of toll within eighty rods of the corporate limits of a city or village where such limits have been enlarged.</p> <p>The remedy of one traveling over such a pike is by mandamus against the city to institute appropriation proceedings against the company.</p>

<p>Personal property located in this state is subject to collateral inheritance tax without regard whether the deceased owner was a resident or a non-resident of this state.</p>

<p>An order by the Court of Insolvency confirming a sale is not an appealable order under R. S., 6407.</p> <p>But where an order for sale is made, and such order defines and determines the amount and terms of the sale and the rights of the parties in the premises, an appeal will lie.</p>

<p>1. The act of April 13th, 1894, (91 O. L., 135,) having been declared by the supreme •court to be unconstitutional and void, in so far as it gives a lien on the property of the owner, to sub contractors, laborers, and "those who furnish machinery, material, or tile to the contractors, the remaining parts •of the act, together with the repealing •clause, are also invalid.</p> <p>2. Hence the Mechanic’s Lien Law is contained in the provisions of the statutes on that subject as they existed prior to the passage of that act.</p>

<p>Taxes can not be levied on personal property which has passed into the hands of an assignee for the benefit of creditors: and this rule applies where the business of the assignor is being continued by the assignee.</p>

<p>1. A person becoming a> member of an association is bound by the constitution, bylaws, rules and regulations of such an association.</p> <p>2. When a member of an association is placed upon trial for the violation of its rules, and where such association has acquired jurisdiction of the person and subject matter, upon a collateral attack upon the judgment of such an association, a court of law will not look into the irregularities of such proceeding, or errois committed.</p> <p>3. A member of an association, upon trial, may waive any of the provisions of the constitution, rules and regulations of such an association.</p> <p>i. An informal ballot may be taken by committee or trial court of such an association, and when agreed by committe or trial court to be an informal ballot, such ballot neither acquits nor convicts.</p>

<p>W7here an assignee properly demands of the County Treasurer the tax bills against his assignor, and pays all taxes required of him, he can not be required, after having fully settled the estate, to pay further taxes not until then demanded of him.</p>

<p>A tenant in common owning for the present a one third interest in an office building, is not. in a suit for an accounting, entitled to a receiver, where the other two-thirds protest and there is no showing of-fraud, entanglement of accounts or exclusion from a due share of the net profits.</p>

<p>The Act of tbe legislature, “for tbe Suppression of Mob Violence, ” passed April 10, 1896, 92 Ohio Laws 136, is unconstitutional.</p>

<p>1. Section 5033 Revised Statutes of Ohio, provides that “when a corporation having more than fifty stockholders is a party in an action pending in a county in which the corporation, keeps its principal officers, or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county , the court shall change the venue to the adjoining county most convenient for both parties.” Held, that the court is not compelled to change the venue unless in the reasonable exercise of its discretion it is of the opinion that the application is sustained by the affidavits of five credible persons: and that in forming its opinion, the court will con sider the sufficiency of the affidavits and the credibility of the affiants.</p>

<p>Appropriation to private sewers — Compensation to the owners.—</p> <p>Where a municipal corporation has appropriated a private sewer to public uses by depriving the owner of all dominion or control over it, or has appropriated it for a special purpose, and the owner has ratified’the act by tendering a sufficient deed as aa ex-tinguishment of all title to the property wrongfully taken, it is for the jury, under proper instructions, to determine the com pensation to be assessed for any property so appropriated to public uses,</p>

<p>Set-off — Section 5015, R. S., construed.—</p> <p>It is the intention of Section 5075, R. S., to include as a matter of set-off all causes of action that can arise upon contract, either express or implied, and whether liquidated or unliquidated ;-and in an action by a withdrawing shareholder of a building association for the amount of his paid-up installments, with dividends, the association may plead, by way of set-off and affirmative relief, , any claim which the association may have against such withdrawing shareholder by reason of any moneys wrongfully and unlawfully paid out to him while acting as treasurer of such association.</p>

<p>Petition in error to Police Court.</p>

<p>Attachment, where, it is alleged that the defendant fraudulently contracted the obligation sued on.</p> <p>Motion to strike supplemental petition from the files not sustained, where the ad-, ditional circumstance is set up that deceit was practiced.</p> <p>A new cause of action can nt)t be set up by way of supplemental petition, especially a cause of action to which the plaintiff was not entitled when he commenced his action</p> <p>The deceit in this case was not only in concealment, but also indirect statement. Held — That the attachment should be sustained on the ground that the debt was fraudulently contracted. (Par. 9, Sec, 521, R. S.l</p>

<p>Heard on motion to strike from the inventory.</p>

<p>1. Where a private corporation refuses to make a transfer of stock, the holder of such transfer may, at his election, sue at law for damages, or in equity to compel the acceptance of transfer and issuance of new certificate.</p> <p>2. A corporation to whom transfer of stock is offered, may compel genuineness of trans fer, etc., to be satisfactorily established.</p> <p>3. Where the evidence establishes genuineness of transfer, the company cannot arbitrarily refuse to make transfer.</p> <p>4. A transfer of stock to a fictitious person is void, and leaves the title in the transferor.</p> <p>5. A party who transfers stock is not a necessary party to a suit by transferee against the corporation, to compel acceptance of transfer and issuance of new certificate.</p>

<p>Superintendent and janitors of City Hall of Cincinnati — Power of Board, of Legislation to confer appointive poiver on city</p> <p>Under sec’s. 1755 to 1764 Rev. Stats., the city clerk has no power and can not be clothed by ordinance with power to appoint a superintendent and janitors of the City Hall. If under sec’s. 2561 2. Rev. Stats., the board of legislation has power to appoint a superintendent and janitors of the City Hall, it must itself exercise such power.and can not delegate it. Held, however, that such power under sec. 2560 to 2562, only exists where it becomes necessary to construct or add to a city hall, and that these sections have no application when the ball is completed.</p> <p>Under the new charter of Cincinnati, the legislative, executive and administrative functions of the city government are distinct and independent of one another, and the board of legislation must confine its labor to matters which are purely legislative. To this end the appointing powers are conferred upon the executive or administrative departments respectively, and this applies to all city officers and employes.</p>

<p> Charitable Devises failing by reason of statute, go to adopted daughter, as against other residuary legatees. </p> <p>Where a testator devises a certain sum of money to his adopted daughter, then makes several devises for charitable purposes, and the rest of his estate to go toother residuary legatees, and the charitable requests fail under the statute because made within one year of testator’s death, the money so intended and devised for charitable purposes will go to the adopted daughter as the heir-at law of the testator, and not to the residuary legatees.</p>

<p> Who is an imbecile or idiot. </p> <p>1. A person who has attended school for a number of years and is not able to tell how much ten times twelve is, or six times fifteen, or 6 per cent, of $100.00, or 10 per cent, of $100.00, or how he would invest</p> <p>3400.00, other than he would put it in bank, although in some small dealings is close and careful, and stingy, is not capable of taking care of hie own property.</p> <p> Removal of guardian. </p> <p>2. A guardian will not be removed merely because his ward has taken a dislike to him and will have no dealings with him.</p>

<p>Land contract — Failure to pay purchase money — Forfeiture.</p> <p>Where a contract for the sale of land fora certain sum is made, the purchase money to be paid on a certain future day, and the purchaser thereupon, with the knowledge and acquiescence of the vendor, proceeds to erect valuable buildings and make other improvements on the propert), but fails to pay the purchase money on the day stipulated, the contract is not thereby forfeited, but the vendor may recover the purchase price by suit to enforce the payment by the sale of the property, and where the vendor, after the failure of the purchaser to pay on the stipulated day, without demand of payment or notice of forfeiture, sells the property to third parties, such third parties will have no more rights than the vendor had himself.</p> <p> Reservoir appurtenance to premises— Mechanics' Lien. </p> <p>The digging and construction on the premises of a reservoir to store water for the use of the factory being in course of construction on the land is an appurtenance to the property, and such a structure as will entitle the contractor constructing such reservoir, to a mechanic’s lien.</p> <p> Subcontractors' liens failing, payment out of money coming to contractors. </p> <p>Although under the decision of the supreme court, sub contractors under the present statute can nut obtain a lien on the premises,yet all the parties being before the court in a proceeding in equity to dispose of the proceeds of the sale of the property to satisfy liens, and original contractors being entitled to part of the money, sub-contractors who have perfected their lien on the property are entitled as against original contractors to payment out of the money coming to such contractors.</p>

<p>Account — definiteness of — ■</p> <p>An executor or sdministrator, with the will annexed, authorized to sell real estate without an order of court, must in his account set out with sufficient certainty, to enable identification, each tract sold, the price when sold, and the name of the purchaser.</p>

<p>Ditch appeal — Motion to dismiss—</p> <p>1. Neither party appearing on the day a cause is set for hearing, the court may, of its own motion, continue such cause indefinitely.</p> <p>2. The following is an indefinite continuance: “By agreement of all parties, the preliminary hearing in this cause is continued to the — day of---A. D., 189 — .” And may, on proper notice of the opposite party, be called up at aDy time for the purpose of fixing a definite time of trial etc.</p>

<p>1. When from the books of a partnership, or from the books taken in connection with evidence outside of the books, it is impossible to state an account between two partners and the situation is attributable not to the neglect of any one of the partners but to the course of business adopted and followed for a long period of time by all of them, the law leaves the partners where it finds them and refuses to interfere by a settlement of the partnership otherwise than to decree an equal distribution of the assets remaining on hand.</p> <p>2. Bartholomew Cavagna and Peter Cavagna were partners for a long period of time. Bartholomew had paid large amounts into the firm from time to time, the result of the sale of his individual property, and Peter had drawn out large amounts for his individual use. Bartholomew, upon his death, left a will containing among other items, the two following : Item I. I desire that all my debts including all accounts, notes, acceptances and all other evidences of indebtedness, in whatsoever hands they may be, against the firm of B. Cavagna & Son, composed of myself and my son, Peter Cavagna,be first paid out of my estate.</p> <p>Item II. I give, devise and bequeath to my son, Peter Cavagna, the stock in trade, book accounts, fixtures, bills receivable,and all other personal property belonging to the firm of B. Cavagna & Son. I make this bequest as also the provision for the payment of the debts of said firm as directed in item 1, for the reason that my said son Peter,has aways devoted himself to my interests and contriubted largely to the accumulation of my estate, and I wish him to have and continue the business which he has helped to build up free, and discharged from any and all liability of indebtedness.</p> <p>Held That by the terms of the will above set forth, the intention of the testator was to give the entire business to Peter Cavagna, including the money paid by him' into the firm and rendered unnecessary an accounting of the partnership affairs between the estate of the testator and Peter Cavagna.</p>

<p>• An Ohio corporation can be sued only in the county in which such corporation is situated or has or had its principal place of business, or in which an office or agent is maintained.</p> <p>The word “may” in Section 5026 should be read “must. ”</p> <p>The appearance of a defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person, is not an appearance in the action.</p>

<p>Employes about a jewelry store whose duty it is to sell goods and care for the stock are entitled to the protection of Section 9355-making labor claims preferred liens.</p>

<p>Trustees Ex Maleficio — Method of procedure against them by a party in interest—</p>

<p>A dismissal upon the charge of illegal voting under sec. 7047, Rev. Stat., is not a bar against prosecution under sec. 2926w-3, for (at the same election) falsely and fraudulently obtaining registration.</p>

An action for an injunction against appropriating for street purposes a strip of ground* passing through the land of the company for 700 feet and abutting on its right of way.

<p>Where T. S., the owner in fee, conveys lands to his son, T. J. S., “during his natural life, and then to pass exclusively to the heirs of bis own body in fee simple forever, provided T. J. S. does not sell and convey said premises before his death, in such event,: the title passes to the purchaser. ’1 In case1 of the re-conveyance by T. J. S. of said real estate to T. S., by deed in fee simple, and by T. S. to the wife of 1. J. S. ,in fee, that the wife of T. J. S. takes an estate in fee and that the limitation in tail by deed of T. S., is thereby defeated.</p>

<p>Sec. 7032a,so far as it maues it an offense to play and exhibit a game of base ball on Sunday, is unconstitutional.</p>

<p>In extraditions to a fugitive from justice, the guilt or innocence of the prisoner is not the question, but under the constitution the question simply is, that the prisoner be duly charged with crime in the demanding state. On habeas corpus therefore,proof of an alibi is not admissible, but proof that the prisoner while he committed the crimo was not actually but only constructively in the demanding state is admissible.</p>

<p>Superintendent and janitors of City Sal of Cincinnati — Power of Board of Legislation to confer appointive power on city clerk—</p> <p>1. The city clerk cannot be invested by the Board of Legislation of cities of the first class and first grade acting as the successor of council with the power of appointment of a superintendent, janitors and other employes whose duty it is to keep the city hall in a proper condition for use and occupancy.</p> <p>2. The inhibition of Sec. 1655a that “the Board (of Legislation) shall not have power to choose, select or appoint any other officer or employe whatever” except a president, vice-president and city clerk, prevents such board from appointing such superintendent, janitors and other employes.</p>

<p>1. The words “forthwith” or “immediately, ” when used in reference to the notice of loss in 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>Compensation for injury to buildings abutting a graded street. Measure of damages.</p>

<p>A city has the right to demand and receive that portion of the bridge fund levied in the county which is levied on city property within the city, and has then the duty to construct or keep in repair the bridges within the city. Therefore the council of the city of Cincinnati has the care of supervision, and control of all bridges within the corporation, and has to keep them open and in repair. And where the county commissioners constructed a viaduct within the city of Oincinnati under a statute requiring them to do so, it is incumbent on the city, after such viaduct is completed, to assume the care, supervision and control of it, and to keep the same in repair, and that without any further action on the part of the county commissioners. And where the city authorities, on being notified of the com pletion of such viaduct, refuse to assume the care and control of it, the county commissioners are not the proper parties to institute a proceding in mandamus to compel them to do so.</p>

<p>1. Charges of neglect of duty and misconduct in office preferred under Rev. Stat., 2690m, must be specifically stated with substantial certainty; yet the technical nicety required in indictments is not necessary.</p> <p>2. Although such charges are insufficient in law and are so defective that they can not be made the foundation of an order of removal by the mayor, nevertheless, a court •of chancery will not issue an order of injunction to restrain the mayor from hearing the charges, and, if he concludes to do so, removing incumbents from office.</p> <p>3. There is a full and adequate remedy at law in either mandamus or quo warranto, depending upon circumstances and what ■action the mayor may take, if any.</p>

<p> Power of Board of Administration of Cincinnati to appoint watchman— </p>

<p>Right of a failing debtor• to prefer one or more creditors—</p> <p>1. A failing debtor knowing his insol vency, and in contemplation of making an assignment for the benefit of creditors, may prefer one or more creditois to others, provided ho does so in good faith and by means to hinder the other creditors no more than is incidental to the preference, and this may be done by a mortgage delivered to the mortgagee before the deed of assignment is delivered to the probate court.</p> <p>Right of a creditor to take a preference-from his failing debtor—</p> <p>2. A creditor of an insolvent debtor acting in good faith and with a purpose single to his own interest, may take from his failing debtor a preference, even though he know that his debtor is insolvent and knows-also that it is the intent of his debtor in giving the preference to him to hinder and delay his other creditors.</p> <p>jEssential elements in order to maintain a preference—</p> <p>3. In order to maintain a preference-made by an insolvent debtor, there are three essential elements that the creditor must-make appear: First — An adequate consideration. Second — Scrupulous good faith on the part of the creditor. Third— A purpose-single and sole to tho security of his claim. Without either of these the preference must fall.</p> <p>Insolvent debtor making members of his family his preferential creditors, effect—</p> <p>-1. Where an insolvent debtor makes members of his immediate family his preferential creditors, the transaction is suspicious and-calls for the closest scrutiny, and the disclosure of an adequate consideration and the bona tides on the part of the creditors. In all this class of cases the bona tides of the whole transaction is assailed by the creditors, and where so assailed, the burden of proof is upon the creditor not only to show that the preference was upon an adequate consideration, but that it was done in the utmost good faith, and the introduction of' the mere formal transfer raises no presumption whatever of good faith.</p>

<p>1. — It is the duty of the probate court to appoint a guardian for resident idiots, imbeciles or lunatics, upon a proper application and hearing therefor.</p> <p>The fact that previous to such application and hearing, such idiot, imbecile or lunatic, has been admitted into an infirmary, and his property taken possession of by the officers of such institution, will not deprive the court of such duty.</p>

<p>F. C. R. filed an account as administrator of J. R., to which exceptions were filed by .A. R., an heir at law.</p> <p>Before the account was passed upon, F. C. R. died, and J. R. qualified as his exec utrix, and as such filed a final account for F. C. R. as administrator of J. R. Similar exceptions were filed to the account by A. R. : Held, that A.R. was incompetent to testify in support of his exceptions.</p>

<p>It is not essential to the validity of a deposition that it be written in long hand, and a motion to strike from the files will not be granted when the sole objection is, that it was first stenographically written,and afterwards transcribed on a type-writer.</p>

<p> Counsel fees— </p> <p>1. Where the settlement of an estate, amounting to oier 323,000, extends over four-years, during which time counsel gives advice, brings suit to sell real estate in probate court, also suit in common pleas to construe will, makes abstract of title, files accounts, a fee of S550.00 is not excessive.</p> <p> Extra allowance to administrator— </p> <p>2. For expenses incurred and services. rendered in the bringing of a suit to construe will of decedent, looking after real estate, collecting rents, and paying taxes thereon for two years, are services not required of an administrator or executor in the common course of his duty.</p> <p>Itemized claim, etc, —</p> <p>3. Where an administrator presents a claim for extra services, he must present it itemized fully, so that the court or heir may understand the exact nature of his claim and the services rendered etc.</p>

<p>Citation to file account.</p>

<p>Contract of city with Water Works Co. - - What rules are reasonable — Violation of injunction to restrain enforcement of unreasonable rules does not involve forfeiture of franchise, but proceeding in contempt of court against the proper officer or employe of the company. t</p>

<p>jDuty of courts in construing statutes—</p> <p>1. It is the duty of courts in the construction of statutes to give full force and effect to all their provisions, if by any reasonable construction of the statutes it can be done.</p> <p> Repeals by implication— </p> <p>2. Repeals by implication are not favored in law, and such repeals will not be accomplished if the statutes can be fairly recon oiled.</p> <p>Where several clatises of a statute irreconcilably conflict—</p> <p>3. Where several clauses of a statute irreconcilably conflict, the last in date or local position must prevail, except where the last is obscure and incoherent, and the eailier clear and explicit.</p> <p>Right of cities of the second class to one-half the bridge fund — -</p> <p>4. The provision in sec. 860, Rev. Stats., must yield to the subsequent legislation in the passage of sec. 2824, and under the law as it now stands, cities of the second class may demand one-half the bridge fund raised by taxation on property within the city limits, and it is the duty of the county officials to transfer said portion to the treasury of the city under the demand made therefor by the city.</p>

<p>Acting under authority of the probate court,F. invested for the benefit of his ward $19,GUO in real estate, with the purpose of securing income-producing property. Money was borrowed from the plaintiff bank by F. as guardian, which was used in completing payment for the property so purchased, and when the ward became of age and accepted the transaction there was still due $4,000 on the loan secured from the bank. The building was afterwards destroyed by fire, and the present suit was brought by the bank, which seeks to be subrogated to the rights of F., its debtor, in proceeds from insurance on the property.</p> <p>Held : — 1. That the bank can not assert an equitable lien on the fund arising from the insurance.</p> <p>2. That in any event the equity is with the ward to the extent that she is entitled to be made whole to the amount of the trust fund of her estate so invested by her guardian. before the bank as the creditor of F., her guardian, is entitled to the payment of 84,000, so borrowed from it by him.</p>

<p>Where lands have been sold for non payment of taxes, in an action involving the marshalling of the liens on said land, the purchaser at tax sale cannot recover fees paid an attorneyf for filing for him an answer and cross-petition setting up his tax title.</p>

<p>Infringement of trademarks—</p> <p>A business built up by one man by use of peculiar packages and name, should not be appropriated by another by contrivances, not strictly within the rule of liability, yet which are designed to accomplish a purpose equally injurious.</p> <p>But a court of equity would be justified in refusing to interfere in behalf of persons who claim property in a trade-mark acquired by advertising their wares under representations which are false.</p>

<p>1. Where a business is sold including the good will,as a general rule, the trade-marks of the business pass to the purchaser.</p> <p>2. The firm of A. E. Burkhardt Co., being engaged in the business of selling hats and caps,sold its business, including its good will and the right to a trade-mark having upon it the name “Burkhardt”, to a corporation called “The A. E. Burkhardt Company. ” Subsequently the assets and business of the corporation were placed in the hands of a receiver, and the court ordered the receiver to sell all the assets and business as a going concern together with the good will.</p> <p>Held — that the trade-mark of the business, including the right to use the name “Burkhardt” as a part of the trade-mark, passed to the purchaser at the judicial sale.</p>

<p>A railroad employe was killed while in discharge of his duty as brakeman of a railroad train. He left a widow but no children or their legal representatives. After his death his widow accepted 31,000.00 from the íailroad company, and in consideration thereof, executed and delivered to the company a release, discharging and releasing the company from all liability to her, as widow, for negligence causing the death of her husband. Subsequently, she was appointed administratrix of her husband’s estate, and brought an action under sec. 6135, Rev. Stat., for herself, as the sole heir and only beneficiary nf her husband’s estate, to recover damages against the railroad company for wrongfully causing the death of her husband.</p> <p>Held: That by accepting the sum of SI,000 from the company, and releasing it from all liability to her as widow of the deceased, in an action subsequently brought by her as administratrix, she is estopped from recovering damages from the company for herself as the sole and only beneficiary of her husband’s estate.</p>

<p>Life Insurance — Insurable interest of grandfather in life of grand-son—</p> <p>Where the relation is such that it constitutes a good and valid consideration, in law, for a gift or grant, an insurance policy will be entirely free from any imputation of a wager. A grandfather has therefore an insurable interest in the life of his grandchild.</p> <p>Life insurance policy forced on party as a device of usury—</p> <p>Where a Life Insurance Co., in making a loan to an applicant therefor, at the same time requires such applicant to take out a life insurance policy with the condition that if any of the interest notes is not promptly paid when due, such policy shall be sold at their- office, in Cincinnati, far away from the place of residence of the insured, without any notice thereof, excepting a letter directed to the insured, such transaction is unconscionable and a mere device to extract usurious compensation from the borrower of the money, and such insurance is void.</p>

<p>Beard on demurrer to answer and cross-petition.</p>

<p>Action against joint parties resident in different counties — Jurisdiction—</p> <p>Where the allegations of the petition upon. its face make a case in which all of the defendants are rightfully joined, and service is made on one or more in the county where the suit is brought, and on the others in another county, the question of the jurisdiction of the court over the persons of the defendants served in such other county muát be determined from the allegations of the petition, and must be raised by answer.</p> <p>Sureties on general administration bond jointly liable with sureties on special bond in proceeding to sell real estate—</p> <p>Where an administrator on his appointment gives the bond required by statute for the faithful administration of his trust as a whole,and afterwards in a proceeding instituted by him to sell real estate of the deceased to pay debts, gives another bond as required by statute for the faithful discharge of his duties under such proceeding, such new bond does not take the place of the former general administration bond, but the sureties on the administration bond are jointly liable with the sureties on the bond under the proceeding to sell real es tate, for the faithful discharge of his duties in such proceeding in accounting for the proceeds of the sale, and an action can be maintained against all such co-sureties jointly.</p>

<p>Action to restrain illegal action of municipal authorities — Must be brought on behalf of municipality — Sec. 1778 R. S.—</p> <p>An action by a taxpayer, to restrain mu'nicipal authorites from action claimed to be illegal, under sec. 1778, R. S., can only be brought on behalf of the municipality, and not by a taxpayer for himself and other taxpayers ; but where such an action is brought in wrong form,a court will allow an amendment to make it comply with the statute.</p> <p>Special act conferring corporate power — ■ Act of May 9,1894—</p> <p>An act of the legislature providing fot the appointment of two trustees in cities of third grade, second class, having at the last federal census a population of not less than 14,000, nor more than 14,500, or which at any future census may have such population, owning and operating an electric light plant, is a special act conferring corporate power, applying only to Newark, and is therefore in violation of art. 3, sec. 1, of the constitution of Ohio.</p> <p>Abuse of corporate power — Need not be by contract—</p> <p>Every contract made in violation of law or ordinance govering the matter, is an abuse of corporate power, although every abuse of corporate power may not be a contract.</p> <p>Special meeting of council — Leaving notice at usual place of business not in compliance with statute—</p> <p>Under sec. 1694, R. S., every ordinance or resolution of a general and permanent natute must be read on three different days, unless the rule is suspended by a three-fourths vote of all the members; but such reading may be at a special meeting properly called, although called for a different purpose. But to make the action of council at a special meeting valid, it is required that such special meeting be properly called. The statute providing that notie'e of a special meeting must be served on every member of council personally, or by leaving notice at usual place of abode, a notice, therefore, of a member, not at his usual place of abode, but at his usual place of business, is not in compliance with the statute, and the meml er so served not being present, the action of council at such special meeting is void.</p> <p>Public office defined—</p> <p>An office is a public employment or station, conferred by the appointment of the government, and the term embraces the idea of tenure, duration, emolument, and duties. It is the duty, of his office, and not the nature of that duty, which makes him an officer, and not the extent of his authority.</p>

<p>Delinquent street assessment — After certifying same over to county auditor, corporation can not bring suit to collect same—</p> <p>Where an assessment for a street improvement has been levied by a municipal corporation on abutting property, and becomes delinquent, the corporation has its choice to proceed to coliect the same by suit in its own name, or to certify the same to the county auditor, to be put on the general tax-duplicate, to be collected by the county treasurer with other taxes, and in such case, after thus certifying the delinquent assessment to the county auditor, the corporation can no longer bring an action to collect the same in its own name.</p>

<p>1. Where a petition on its face shows that an account is barred by the statute of limitations and the defendant pleads the bar of the statute, the burden of showing that the defendant was absent from the state, so as to prevent the running of the statute, is upon the plaintiff.</p> <p>2. In such case where the plaintiff replies that the defendant was absent from the state, he cannot prove such fact in chief, but must show it in rebuttal.</p> <p>3. In such a case, where the defendant offered no proof but rested as soon as the plaintiff rested, the court directed the jury to find a verdict for the defendant.</p>

<p>Sub. contractors’ lien — Entire act of 1894 invalid, and laiv stands as before passage of that act.</p> <p>The Supreme Court having declared the Mechanic’s Lien Law of 1894, unconstitutional so far as it provides for sub-contractor’s liens, and it being obvious that the legislature would not have passed that act but to enact the provisions for sub-contractor’s liens thus declared unconstitutional, the entire act, including the repealing clause, must be considered invalid, and the rights of sub-contractors to a lien on the funds in the hands of the owner, under the laws as they stood before the enactment of the law of 1894, are therefore still in force.</p>

<p>A person who performs labor on a farm by the month or by the day, under the direction and control of his employer, in the operation and management of his farm, is an operative within sec. 6355, Rev. Stats.</p> <p>Where the relation of master and servant does not exist between employer and employed, the employee cannot be an operative within sec. 6355.</p> <p>A blacksmith following an independent calling, shoeing horses, sharpening plows, etc., for and to be used by a farmer, is not an operative within sec. 6355, and is not entitled to preference in the distribution of the assets of an assignor.</p>

<p>A mortgagee bringing an action in the Court of Common Pleas in foreclosure on a deceased person’s real estate, will not prevent the administrator of such deceased person from bringing an action in the Probate Court to sell the same property to pay debts etc., of the deceased, unless the administrator is made a party to the action in the Common Pleas Court.</p> <p>Where courts have concurrent jurisdiction, that court shall retain jurisdiction which can afford to all parties the fullest and most complete relief.</p>

<p>Application for guardian—</p> <p>1. The Probate Court cannot appoint a guardian for an idiot, unless such idiot has resided within the county over which the court has jurisdiction continuously for a period of at least twelve consecutive months, or has come into such county with his father, or some one having legal control over him, with the intention of making it his permanent place of abode.</p> <p>2. Legal settlement in sec. 6302, Rev. Stats., means a continuous residence within the county for twelve months.</p>

<p>Lawyer's lien on claim for damages, on account of legal'services in bringing the suit — Settlement of the claim without his knowledge—</p> <p>A law firm brought suit for an administratrix against a R. R. Co., to recover damages for negligenlty causing the death of one of its employes the intestate of the administratrix, after having made a contract with the administratrix that for their fees they should have a certain share of the judgment if any was recovered. They notified the R. R. Co. of their interest in and alleged lien on the result of the suit or any settlement thereof, but the R. R. Co., without their knowledge or consent, entered into negotiations for a settlement with the administratrix, and finally settled with her, paying her a certain amount of money, and agreeing to pay the fee of her lawyers, no amount thereof being agreed upon. The law firm thereupon brought suit for a certain portion of the amount paid ir, settlement of the claim, making the R. R. Co., the administratrix as such and individually, and the guardian of the minor children of tl e deceased as such and individually, parties defendant. On demurrer to the petition on the ground of misjoinder of parties, and generally for insufficiency of facts stated in the petition, held:</p> <p>(1.) lhat there is no cause of action that can be maintained against either of these representative parties, either the administratrix or the guardian, in their representative capacity : (2.) That there is but one</p> <p>cause of action as against the Railway Company and Rose Connell, individually, and therefore no misjoinder of the causes of action, there being but-one, and that the two parties can properly be united in the case and a good cause of action stated against them.</p>

<p>Construction of Oil and Gas lease — Lease providing for the successive drilling of four wells within specified times, and then proceeding that for each location when made, the lessee should pay S150, held : the location money is to be paid not only for the four wells expressly provided for. but for every-well drilled beyond that number.</p>

<p>1. The settlement of a pending suit is a highly favored consideration for a promise to pay money therefor; but the controversy must be in fact settled before the plaintiff can recover upon the promise of the defendant to pay.</p> <p>2. A mere unexecuted accord confers no greater rights upon the plaintiff than upon the defendant.</p> <p>It cannot be plead by the defendant in bar of the pending suit, nor does any remedy lie upon it for the plaintiff.</p> <p>3. When the parties to a suit have agreed that the promise of the defendant to pay a sum of money shall be the consideration for the settlement of it, the promise may be enforced, although the suit be not actually dismissed; but when the terms of the settlement contemplate the dismissal of the suit by the plaintiff and the payment of money by the defendant, the plaintiff cannot recover on the promise to pay unless the suit be in fact dismissed.</p>

<p>1. When a lease is assigned by deed containing a recital that the grantee agrees to perform all of the stipulations and conditions of the lease and to take subject to them, the grantee, by accepting the conveyance, becomes primarily bound to the lessor, or to the owner of the fee, if the reversion has been assigned, to perform ail of the covenants of the lease.</p> <p>2. When the leasehold has been conveyed by several consecutive deeds, each containing such recital, the last grantee is bound primarily for the performance of the conditions of the lease; while the lessee and the several respective assignees of the leasehold are each secondarily liable, the lessee as guarantor, and the several assignees as obligors in separate contracts made for the benefit of the owner of the reversion.</p> <p>3. When a lease, so assigned, with such recital, contains a covenant that the lessee will pay: “All taxes, charges, and assessments that might at any time during said demise be levied, charged, or assessed” on the leased premises or any part thereof, the last grantee of the leasehold and his immediate grantor are properly joined as defendants, in an action by the assignee of the reversion to enforce the covenant.</p> <p>4. Such covenant embraces all assessments for street improvements not differing in kind from assessments for such purposes authorized by the laws of this state prior to and at the date of the execution of the lease, and not differing in nature from the settled policy of the state relating to assessments for street improvements and the burdens to be borne for their cost.</p> <p>5. The “Granite Pavement Act” of 1885, (82 O. L., 156, et seq.,) is not a departure from such policy, does not differ in kind from assessments for street improvements authorized by the laws prior to and at the date of the execution of the lease, and assessments levied by virtue of its provisions during the term of a lease executed before it was passed are covered by such a covenant, as being fairly within the contemplation of the parties when the lease was made.</p> <p>6. Such assessments are included Within such covenant although they are not payable until after the term of the leasing has expired.</p>

<p>At tlie November election of 1894, George, Hobson was elected clerk of the Common Pleas Court of Hamilton county, for a term of three years, beginning on the. first, Monday of August, 1895. In May, 1897, he resigned, and the county commissioners appointed E. R. Monfort, as clerk pro tempore. Subsequently the different political parties made nominations for the election of a clerk at the November election of 1897: and one of the nominees made application to the Board of Elections for Hamilton coutny, to have his name printed on the official ballot twice, viz ronce as a candidate for the unexpired term of George Hobson, ending on the first Monday of August, 1898, and again as a candidate for the regular term of three years, beginning-on the first Monday of August, 1898.</p> <p>Held: 1. That, by virtue of the appointment by the county commissioners, Monfort held the office of clerk until the first Monday of August, 1898; and therefore, there was no unexpired term to be filled.</p> <p>2. That the person elected at the November election, would be elected for the full term of three years, beginning on the first Monday of August, 1898.</p> <p>3. That the Board of Elections properly refused to print the name of any nominee for such office more than once upon the official ballot.</p>

<p>Opinion of the court upon demurrer to petition.</p>

<p>A preferred creditor cannot participate in a dividend among general creditors until the security for his claim has been exhausted.</p> <p>All such creditor is entitled to is that the assignee retain sufficient assets to enable him to share pro rata with the general creditors, on the amount of his claim remaining unpaid after the proceeds of his security has been applied thereon.</p>

<p>An Ohio assignee in insolvency, under R. S. Title II, Chap 4, of a lessee may elect whether to accept or reject the lease.</p>