Volume 5 — Ohio Nisi Prius Reports

<p>Any instrument, however formally executed, under whatever name the testator may adopt, does not make a last will and testament in law, unless there shall be found plainly an intention to make such a disposition of property as can be seen from a plain reading of the instrument.</p> <p>The mere designation of A and B as daughters, will not. in a will, make them heirs at law, even though declared solemnly in the presence of witnesses. This can only be done in the manner prescribed by statute for making one not born in lawful wedlock an heir at law, under sec. 4182 R. S.</p>

<p>A railroad corporation having filed its petition to condemn for its right of way fivo separate tracks of land belonging to as many different persons.</p> <p>Held, that all the defendants were entitled to but two peremptory challenges.</p>

<p>1. The duty imposed upon the county recorder by statute, to enter upon each written instrument presented for record “the date and precise time of day of its presentation” is a ministerial duty, and is not conclusive, but is only presumptive evidence of the fact stated thereon, and the true date of such presentation for record may be shown by oral testimony notwithstanding such record.</p> <p>2. From an examination of the statutes relating to filing of written instruments with the county recorder and requiring the recorder to make a correct record of such instruments in his office, it is clear that the legislature intended to provide a record of the title to the real estate situate within each county, which should be notice of the true state of the title to each tract of land within the county.</p> <p>3. The language “delivered to the recorder of the proper county for record,” as used in section 4133 R. S., and “presentation of a deed or other instrument in writing for record,” as used in section 4134 R. S., are to be construed as requiring. such delivery or presentation to beat the office of the county recorder, and that the same be filed therein, so that an examination of the files and records in the recorder’s office will disclose the fact of such filing.</p> <p>4. The delivery of a mortgage by the mortgagee to the county recorder, at a place other than ict the office of such recorder, and the indorsement thereon by the recorder of the time he received the same, creates no lien upon the real estate described therein as against those whc acquire rights to, interests in or liens upon such real estate before the mortgage is actually placed on file in the office of the recorder.</p> <p>5. Two mortgages were handed to .an employe of the recorder and by such person indorsed “filed for record February 6th, 1896, at 7:15 P. M., and 7 :35 P. M.” respectively, but were not actually placed in the office of the recorder until after nine o’clock P. M. of said day; and a deed of assignment executed by the Mortgagor was filed in the probate court of the same county on the same day at 7:45 P. M., Held, that such mortgages were not filed “for record” within the meaning of sec. 4133 R. S. until actually placed on file in the recorder’s office, and secured to such mortgagees no preference over the general creditors of the insolvent.</p>

<p>1. Where a conveyance is made upon a valuable consideration, such a conveyance is valid as against existing creditors of the grantor unless the transaction was intended to delay, hinder and defraud such creditors.</p> <p>2. Inadequacy of consideration as ' a ground for setting aside a contract has its basis in fraud, and the necessary fraud must be proven from the evidence in the case.</p> <p>3. In the determination of the question whether the contracc is tainted with fraud, the adequacy of the price is one of the circumstances to be considered, and where there is so great a disparity between the actual value of the property disposed-of, and the amount stipulated in the contract, as under the circumstances, to shock the moral sense and lead irresistibly to the conclusion that the intent was fraudulent, tha court presumes that such was the intent. The presumption however, is not conclusive; but may be over-come by the other evidence in the case upon the question of fraud.</p>

<p>I. Remarks by the trial judge in the presence and hearing of the jury as to the inaccuracy of reports of testimony before the coroner, when such report is about to be offered in evidence for the purpose of impeaching a witness upon an important issue in the case, constitute reversible error, when such remarks have been duly excepted to at the time.</p> <p>II. Where in an action for “wrongful death” it is claimed among other things that the defendant was guilty of negligence in making a “running switch” of certain of its cars, the defendant should be permitted to show that it had with the knowledge and acquiescence of the deceased been in the habit of making ‘ ‘running switches” of cars in its yards in Cincinnati. By reason of such acquiescence the employe thereby waived his right against the company for any negligence that may have been involved in making “running- switches ”, and took the risk upon himself.</p> <p>In such case it was error to limit the defendant to proof of habitually making- “running- switches” to the particular track upon which the deceased was killed.</p> <p>III. Whether an employe is guilty of negligence in attempting to cross a track at night, after an engine which has made a “running switch” has passed, and in failing to observe the approach of the cars which closely follows the engine after being so switched: Held to he a question of fact for the jury under all the circumstances of the case.</p>

<p>Assessments for paving street and for laying stone sidewalk in front of lot, made within the period of two years, each amounting to less, while both in the aggregate amount to more than 25 per cent, of the value of the lot, are different in kind, and cannot be added together to make them in the aggregate fall within the 25 per cent limitation of sec. 2271 R. S.</p>

<p>1. While the construction of a sewer in a street is in the nature of a street improve ment, yet “making” a street does not necessarily include the construction of a sewer.</p> <p>2. The authority for street making, is found in statutes entirely different from the statutes authorizing the construction of sewers; but to each construction applies the law that the assessment for its cost shall not exceed twenty-five per centum of the value of the property.</p> <p>3. The two constructions may proceed concurrently or be made at different times; but the assessment for the cost of each must be separately levied.</p> <p>4. Where the assessments for each con struction is less than the twenty-five per centum limitation, both may be levied with respect to the same property, although the time within which both street and sewer be made is less than five years.</p>

<p>1. The general rule is, that the vendor of £>'oods on credit, may exercise the right of stoppage in transitu on the insolvency of the vendee at any time before there is an actual or constructive delivery of the goods to the vendee.</p> <p>2. An exception to this rule is, when, during the transit the vendee transfers the bill of lading to a bona fide purchaser for value. By such transfer the right of stoppage is terminated.</p> <p>3. When, before the delivery of the goods to the vendee or his agent ,he sell them to the carrier in payment of a preexisting debt, the carrier is not a bona fide purchaser for value, and the right of stoppage in transitu, still remains in the vendor.</p>

<p>On probate of lost will.—</p> <p>A lost will may be admitted to probate when it appears that the instrument was in existence after the death of the testator, unrevoked.</p> <p>The burden of proof is upon the proponents to show that all of the formalities required by the statute were duly observed.</p> <p>In cases of this character, secondary evidence may be introduced, where the subscribing witnesses are dead, and the original will is shown to have been lost, to show not only tlie'eontents of the instrument, but also‘the observance of the formalities required by law.</p> <p>Tlie law lays clown no inflexible rules in such cases, but accepts tlie best evijlence that can lie procured.</p> <p>Statutory requirements should receive a liberal construction in cases of this character.</p> <p>A copy of a will, made shortly after the death of the testator by his attorney, is admissible as proof of contents of the lost will.</p>

<p>A contract requiring an employe not to enter the service of a rival within one year after leaving an employer, no matter for what cause he quits, or is discharged, is oppressive, and unjust, and injunction will not be granted to enforce it against the employe.</p>

<p>One whose original entry thereto was lawful, and who is in possession of an office, is not divested of possession by a forcible expulsion from his chair at the hands of an adverse claimant, and this, event though the claimant may have title.</p> <p>The one in possession, if in good faith disputing the claimant’s title, will be protected in his possession against interference by the claimant until the question of title is determined in an action at law.</p>

On the 9th day of June, A. D., 1893, at the April term of the Court of Common Pleas, of Cuyahoga county, the defendant, Mary E. Stiimnel, formerly Massey, obtained a decree of divorce from the plaintiff, Melville I. Massey, a citizen of Ohio, temporarily residing in the state of New York, together with a judgment for alimony against him, in the sum of $500.00; but no execution was issued thereon until the 31st day of October, A. I)., 1895, on which date an execution to…

<p>Slander—</p> <p>Witness giving testimony claimed to be slanderous not subject to action for slander where testimony is pertinent to the issue in the case.</p>

<p>Where the purchaser pays a good consideration for the property and is not credited on account of such c-onsiderationiin the amount of a mortgage which rests on the property at the time of the sale, he is not estopped from contesting the validity of such mortgage.</p>

<p>A party is not entitled to take the deposition of the adverse party for the purpose of discovery and to enable him to develop his ease.</p>

<p>The plaintiff’s intestate, in applying for insurance in the defendant company, gave incorrect answers as to certain immaterial matters, which in no wise affected the risk, and were given in an honest belief as to their truthfulness.</p> <p>Held, That these answers were not such absolute warranties as would invalidate the contract of insuranec and defeat plantiff’s right to recover.</p>

<p>Where a chattel mortgagee permits the property covered by his mortgage to go into the venture of a continuance of the business by a receiver, if the liabilities of the venture consume the property he must abide the result.</p> <p>(But in a dissenting opinion it is held that where the chattel mortgagee does not become a party to the suit in which the receiver was appointed until after an order for the sale of the mortgaged property had been made, he is not es-topped by the order to continue the business which was practically vacated by the order of sale.)</p>

<p>The act of the General Assembly of Ohio, passed April 21, 1896, (92 O. L., 263), “to promote the public health and regulate the sanitary construction of house draining and plumbing,” unconstitutional.</p>

<p>When a party holds a lease for all the coal underlying- the land of another, so long as coal is found in paying quantities, and the holder of said lease fails for eleven years to work said mine, and the openings to said mine cave in, the lessor and those claiming under him have a right to assume that said lease has been abandoned. And in an action by the lessor’s administrator, toselJ said land to pay tiie debts of the deceased lessor, the court will order said land sold free from any incumbrance of said lease.</p>

<p>1. Where the assets of an insolvent co-partnership will pay a dividend of only three tenths milis, the creditors being numerous, and their claims varying greatly in amount, and there is no living solvent partner, the par nership creditors have a right to share equally with the individual creditors in the distribution of the insolvent estate of one of the partners.</p> <p>2. A creditor of an, insolvent estate having the unqualified right to the whole of a certain fund, is entitled to interest accruing thereon pending litigation concerning it, between such creditor and the administrator ; and in such a case the creditor cannot be compelled to accept a percentage with the creditors of the deceased.</p> <p>3. Bounds of an insolvent estate in the bands of the administrator, unlike assets in the case of an assignment, are subject to taxation. .</p>

<p>1. A judgment of the court of common pleas becomes dormant and ceases to operate as a lien on the land of the judgment debtor, if execution be not sued out “within five jears. from the date of the judgment. ” Rev. Stat., 5380.</p> <p>2. “The date of the judgment,” as intended by the legislature, is the day on which the judgment attaches its lien upon the land of the judgment debtor.</p> <p>3. Except in certain specified cases, the lien of a judgment binds the land of the debtor in the county, from the first day of the term at which the judgment is rendered. Rev. Stat., 5375.</p> <p>4. The lien is but an incident to the judgment, and was made to relate back and attach as of the first day of the term, because of the fact that the judgment itself relates back to that day.</p> <p>5. On all judgments of the court of common pleas where, under sec., 5375, the land is bound from the first day of the term, the judgment will become dormant and cease to operate as a lien unless execution is sued out within five years from that day. To keep the judgment from slumbering and preserve the lien, it is not sufficient to sue out execution within five years from the day when the judgment is actually rendered or entered</p>

<p>(1). Rev. Stat., 6335, provides only for assignments made by residents of the state of Ohio.</p> <p>(2). This section has no application to a deed of assignment executed in the state of Kentucky by a resident of that state, conveying land situated in Ohio.</p> <p>(3). Such deed, if executed, witnessed and acknowledged in conformity with the law of Ohio, as to delivery, must be given effect as at common law.</p> <p>(4). An assignment in invitum by the operation of law of one state has no extra-territorial effect.</p> <p>(5). Instruments of encumbrance and mortgages of equitable interests in real estate in Ohio are subject to the provisions of Revised Statutes, 4106 and 4133.</p>

<p>The right to change the person who is a receiver is a right which rests in the discretion of the court, and the exercise of such right will not be interfered with by a court of review except for an abuse of discretion.</p> <p>A plaintiff is estopped to urge in a court o£ review, that the petition did not state facts sufficient for the appointment of a receiver. He cannot invite a court into error, and then attack the action taken upon such invitation.</p>

<p>The policy of the law favors settlements, encourages compromises, and welcomes the solution of legal difficulties by amicable means, and when brothers and sisters, heirs and devisees, unite in an instrument whose sole puip)se is an adjustment and settlement of all disputed matters, to the end that there may be a speedy termination of all questions in controversy, our courts have invariably adopted that plan as a desirable conclusion in the settlement of estates, and a party to such a contract of settlement, who at the time was fully aware of the condition of the estate, -will not be heard afterwards to object to the contract.</p>

<p>[The majority opinion .n this case appeared in Vol. 4, Nisi Prius Rep. 252. This is the first appearance of the dissenting opinion in print. ]</p> <p>Change of venue where more than fifty stockholders in the defendant corporation reside in the county where the suit is pending—</p> <p>Dissenting opinion.</p>

<p>Where no time is agreed upon for the completion of a contract, it must be completed within a reasonable time under all the circumstances; and what would be a reasonable time is a question for the jury under proper instructions by the court.</p>

<p>Sewer assessments — Sufficiency of Ordinance-Exemption from, assessment — Proper remedy by property owner — Depth of lot to be assessed — Private claim against contractor not proper set-off to suit for assessment by city for his use—</p> <p>1. An ordinance “to improve by sewering in accordance with a resolution of council, adopted February 19, 1886,” is of the same effect as though it contained the specific recitals as to the lots and lands to be assessed, which were contained in the resolution.</p> <p>2. It is not necessary to establish an assessing district for the construction of a trunk sewer.</p> <p>3. An abutting lot owner will not be heard to compliin of a failure to assess all the abutting lots for a sewer improvement unless the assessment on his own lot was increased by such failure. His remedy would be to enjoin as a general tax payer, the levy of increased taxes due to such failure.</p> <p>4. Exemption from sewer assessment can not be claimed on the ground that there was an existing sewer, unless such sewer had a proper outlet.</p> <p>5. It is not necessary that council, at the time of ordering the assessment, fix the depth of the abutting lots.</p> <p>6. The appropriation for a sewer of land belonging to an abutting property owner, does not afford ground for such property owner to resist the assessment.</p> <p>7. Private claims against the contractor can not be set up by way of counter claim in a suit by xhe city for the use of the contractor to enforce the assessment.</p> <p>8. A dedication, subsequent to the assessment, of a part of an abutting lot for street purposes, is not ground for a reduction of the assessment.</p> <p>9. Where it is in contemplation, at the time of levying the assessment, to extend the sewer so as to give it a proper outlet, .and such extension is made, the statute is satisfied as to an outlet.</p>

<p>1. Where a stockholder in a corporation has been denied the right to an inspection of its books, the remedy to compel such in spection is not mandamus, but mandatory injunction.</p> <p>2. The question whether the motive cf the stockholder can be inquired into in such a proceeding, not determined.</p> <p>3. The right to an examination and inspection by a stockholder is not limited to an examination and inspection by himself, but includes also the right to examine with an attorney, agent or expert book-keeper.</p>

<p>The Will of R. P. R. contained the fol-owing provision: “I give and bequeath to each of my grandchildren now or hereafter born the sum of fifteen thous- and dollars, to be paid to them respectively, together with any accumulations thereon, when they shall respecitvely arrive at the age of twenty-three years, ” etc. Held: That the bequests in this provision are limited to the grandchildren in being at the time of the death of the testator, and do’ not include those born after his death.</p>

<p>M., an attorney, was employed by McM. as administratrix of her deceased husband’s estate, to prosecute a claim against a railroad company for the wrongful death of the husband. The litigation was successful, and M. retaihed from the sum thus derived a sum which McM. claims was excessive, and a part of which she now sues to recover. The answer sets up the reasonableness of the charge, and that the services wex'e procured and accepted by the plaintiff, both as bfaefieiary and administratrix, with full knowledge as to what the charge would be. To this answer a demurrer was sustained below.</p> <p>Held — That McM. acted throughout in her capacity as beneficiary alone, and that the fund is chargeable with a reasonable compensation for its procurement.</p>

<p>In prosecutions for violations of the act passed April 20, 1894, (O. L. Vol. 91, 162), and the regulations prescribed by the county commissioners in pursuance thereof, making it unlawful for persons to transport over the free turnpike roads of any county burdens beyond a certain weight on vehicles having tires under a certain width, mayors of cities not having a police court, have final jurisdiction to hear and determine the prosecution.</p> <p>In such cases, the penalty being a fine only, the accused is not entitled by the constitution to a trial by jury.</p>

<p>Section 3, of the act of the legislature, passed April 27th, 1896, (92 V., 315 Bates Rev. Stat., sec. 247f.), requires the railroad company hereafter seeking to cross the track of another railroad company at grade, to inter-lock or attach together the tracks at said crossing in such manner as shall be prescribed by the commissioner of railroads and telegraphs.</p> <p>Said section does not require the railroad company seeking to cross another railroad at grade to putin an “inter-locking system. ”</p>

<p>By the amendment of section 3838 Rev. Stat. of 1880 of May 8, 1886 and May 1, 1891, a building and loan association may assess and collect upon a loan of money to a member of such association, a sum as premium, although such sum when added to the interest upon the loan exceeds the legal rate of interest allowed by the statutes of Ohio in other cases; and such excess is not usurious under the provisions of said statute.</p> <p>Under said amendment the right of such association to so assess and collect does not depend upon the amount of premium which a borrower might bid therefor. The right of the borrower to fix the amount to be paid by him as premium is taken away by said amendments, and the right to fix the amount of premium upon a loan, is conferred upon the association alone, by said am endments.</p> <p>The decision of the supreme court of Ohio in the case of Bates v. The Peoples’ Savings and Loan Association, 42 Ohio St., 655 and prior decisions, being based upon the provisions of the statutes of 1868, which gave to the borrower tbe right to fix the amount of premium by his bid are not applicable under the statute now in force. (Section 3836-3 Bates Statutes 1897.)</p>

<p> Testimony necessary to establish a trust. </p> <p>1. A trust can be established only by clear, certain and conclusive evidence in proof not only of the existence of the trust at the time of the conveyance, but also of its terms and conditions.</p> <p>2. Where husband and wile live on land the separate estate of the wife, and work the same, the wife pocketing the proceeds of the products raised on such lands, claiming them as her own, to which the husband yields a reluctant acquiescence, the husband cannot after-wards claim such money as wholly or partly held in trust for himself.</p>

<p>1. Sufficiency of affidavit for attachment—</p> <p>It is unnecessary, in an affidavit for an attachment, to allege the facts constituting the cause of action on which the attachment is based. The plaintiff is required to state only the “nature of the claim.” An affidavit which states that the action is “upon a book-account for merchandise sold to said defendant, amounting to $471.47”, is, in this respect, a substantial compliance with the statute, and sufficient.</p> <p>2. Waiver of exemption in lieu of homestead—</p> <p>A right to select and demand property in lion of a homestead exemption may be waived by a debtor; but mere failure to make such selection and demand for any time short of that permited by the statute, is not such a waiver.</p> <p>3. Selection before levy—</p> <p>The statute does not require that the selection shall be made after a levy or from property levied on. The selection may be made before or at the time of the levy, by withholding and concealing property for the purpose and with the effect >f preventing a levy upon it.</p> <p>4. Equitable principles applicable—</p> <p>Although exemption rights are statutory they are to be construed and applied so as not to work fraud. Equitable principles are applicable to contentions in which they are asserted'. The fraudulent concealment and withholding of property to an amount and value equal to or greater than that exempted by law, will be construed as an election to hold such property as exempt, and the debt- or is estopped from claiming, in addition to the property so withheld, that levied on.</p> <p>5. The family of the debtor — How affected—</p> <p>Exemptions in lieu of homesteads are designed for the benefit of the debtor’s family; but m making the selection and subsequent disposition of the property selected, the debtor represents the rights and interests of his family. Whether he selects property levied on, or waives his right to select it by withholding other property, his family are bound by such selection or waiver. If he fraudulently withholds property to the entire amount and value allowed by law, he will be refused that levied on, not to punish him or his family for his dishonesty, but because he, and his family through him, have already received all that the law exempts from application to his debts.</p>

<p>1. Where goods are sold on weekly or monthly payments and a chattel mortgage in the usual and ordinary form on such goods is given to the seller, it does not come within the purview of section 4155-2 of the Revised Statutes of Ohio., known as the Conditional Sales’ Act.</p> <p>2. Under the provisions of the chattel mortgage in the case at bar, the mortgagee had the right to take the property and sell it at public or private sale and apply the proceeds to the payment of his claim without first re-paying the mortgagee fifty per cent, or any "other portion of the Dayments made on the goods thus taken and sold.</p> <p>8. Parol evidence of co-temporaneous agreements is inadmissible for the purpose of contradicting, adding to, or varying the terms of a valid, written instrument, that is, in this case the mortgage.</p>

<p>1. In on action brought by a tax-payer under sec. 1778, Rev. Stats., to enjoin illegal actions of the officers of a municipal corporation, it is not necessary that it should be stated in the caption of the petition that the plaintiff is a taxpayer.</p> <p>2. " The provisions of the statutes which require in cities of the first grade of the first class that before any expenditures are made for each fiscal year, there shall be an estimate made by the auditor, the board of legislation and the board of supervisors,and subsequently semi-annual appropriations by the board of legislation for the several objects for which the city has to provide apportioned to each' month of the moneys known to be in the treasury or estimated to come into it, are mandatory, and unless complied with, the city authorities will be enjoined at the instance of a tax-payer from the expenditure of the city’s funds.</p> <p>3. The appropriations above referred to must be detailed, specific and explicit for the several objects for which the city has provided apportioned to each month; and in every case in which it is practicable must classify and sub-divide the expenditures for any particular object; and if such classification and subdivision are not observed in the appropriating ordinance the same will be null and void.</p> <p>4. Where the estimate as to any particular object has been agreed upon by the officers and boards whose duty it is to make such estimate the amount of such expenditure cannot be increased by means of the appropriating ordinance; and an attempt to expend an amount above the estimate is illegal.</p> <p>5. The main purpose of the legislation upon this subject was to secure an economical expenditure of the public funds, for those objects only which a wise and prudent foresight would deem necessary ; and to this, end to compel city officials in advance of expenditures to make public declarations of the amounts and objects for which they proposed to make expenditures, so that public attention and criticism might be directed to the same. Such being the purpose of the statutes the courts should give them a liberal construction in the interest of the public.</p>

<p>1. Where one of the parties to a suit invites the determination by a court of equity of matters which are strictly speaking of legal defense, such determination while erroneous and constituting grounds for a reversal, provided the party is not estopped to raise the question, can not be said to be void for want of jurisdiction so as to be coliaterally attacked.</p> <p>2. Where one of the parties to a suit procures a decree which owing to the circumstances and the character of the case is not final as determining ultimate rights but is an interlocutory decree, it must take the consequences of its action and must be held to abide such decree until it, together with the final judgment, may be reviewed in the upper courts.</p>

<p>1. A recovery of damages in an action for breach of the covenant against incumbrances, the incumbrance being an assessment payable in installments, will not operate as a bar to recovery in a subsequent suit for the damages which have accrued since the former action.</p> <p>2. When the court in such former action finds, in effect, that the contract is divisible, and that separate actions may be brought for different installments of an assessment, and such finding is acquiesced in by the parties, it is conclusive between them with reference to the construction of the contract, and estops them from subsequently insisting that successive actions may not be brought and judgment obtained.</p>

<p>1. Section 845 of the Revised Statutes, as amended (91 O. L., 142-3) is not unconstitutional as an act of a general nature not having a uniform operation throughout the state. In so far as its operation is restricted, it is not of a general nature.</p> <p>2. By said section the county commissioners of all counties in the state are made liable in their official capacity for any damages received by reason of their neglect to keep in proper repair any state or county road or bridge established by them.</p> <p>3. Such commissioners are required to construct bridges over,‘streams on county roads and to construct and keep in repair the approaches thereto. A neglect to keep such an approach in repair will render the commissioners liable in their official capacity for damages directly caused by such negligence without fault Qr contributing negligence on the part of the person complaining.</p> <p>4. That neglect to keep such approach in proper repair may be defined as a nuisance, does not affect the liability of the commissioners. It is the nature, not the name of their act or omission that renders them .liable in their official and representative'capacit-y rather than as individuals.</p>

<p>Motion to dismiss appeal.</p>

<p>One going out of the jurisdiction of his residence upon the advice of counsel to attend upon the cross examination of adverse witnesses, whose depositions are being taken to be used in an action in which he is a party, is privileged from the service of summons—</p>

<p>Notwithstanding the pendency of foreclosure proceedings, mortgaged property passes into the jurisdiction of the court of insolvency by a deed of general assignment filed at any time before the actual seizure of the property by the mesne or final process of the court in the foreclosure suit.</p>

<p>(1). A court of equity will not permit one tradesman to represent his business as that of another; and will enjoin such conduct whatever the devices or means used in making such representation.</p> <p>(2). The ground upon which equity bases its action is that such conduct is an unfair - mode of competition and a fraud upon the property “rights of the one whose business is injured. Such relief will be granted irrespective of the grounds upon which relief is granted in trade-mark cases.</p>

<p>[Part of Sec. 8, of tine city ordinance of March 22, 1897, relating to sewer tappers and plumbers held to be void.]</p>

<p>1. The act of the General Assembly, entitled “An act to authorize the Conimissioners of Hamilton County to improve Michigan and Shaw avenues, in section 27, Columbus township,” passed April 13,1893, is unconstitutional.</p> <p>2. A petition upon which legislation for a public improvement is founded becomes absolute when the petitioned board assumes jurisdiction by acting upon it.</p> <p>3. Where some of the heirs of a deceased partner are minors, and certain real property, althoug A, anding in the firm name, is not used for’ partnership purposes, and there are no partnership debts, the surviving partner has no right to sign the firm-name to a petition which would subject such property to assessment for a street improvement.</p> <p>4. Estoppel under the Manss case, 54 Ohio St., 257, relates to the signer whose representations are relied upon! and has no effect to bind his co-petitioners.</p> <p>5. The words “to dispose of”, used in a declaration of trust, construed with reference to context and subject matter.</p> <p>6. The principles of estoppel, laid down in Tone v. Columbus, 39 Ohio St., 281-303, applied to a certain state of facts.</p> <p>7. Before acts of an agent are introduced to estop a property owner from contesting an assessment, the agency to perform such acts must be clearly shown.</p>

<p>1. The statute entitled “An act to regulate‘the practice of medicine in the State of Ohio, ” passed Feb’y. 27, 1896; 92 O. L., 44,) establishes certain requirements and provides a penalty for their violation, as to three classes of persons, viz.: (1) graduates in medicine or surgery; (2) legal practitioners who are not graduates; and (3) persons engaged in practice who are not graduates and not entitled to practice.</p> <p>2. As to members of the first two classes described, the statute requires that they shall take certain steps to obtain from the state board of medical registration certificates of graduation or right to practice. The statute does not require that such certificates shall be left with the probate judge for record; but in that respect, as to said two classes, is permissive merely, although providing what shall be the legal effect of the certificates as evidence, when voluntarily so left for record. As to the third class of persons, the certificate of the state board, when left with the probate judge for record, entitles the owner “to practice medicine or surgery in Ohio” for one year. Section 4403d of the statute makes the.leaving of such certificate with .the probate judge of the county, mandatory “before entering upon the practice.”</p> <p>3. An indictment which does not indicate to which of said three classes the accused belongs and charges only a failure to “obtain” from the state board a certificate, without alleging any failure on his part to do the acts required preliminary to the issuance of such certificate by the board, is defective, and should be quashed for indefihiteness.</p> <p>4. Said act is not unconstitutional as being an interference with vested rights or as impairing the obligation of contracts.</p>

The plaintiff, Catherine Ward, borrowed $2,000. from the defendant, and gave a mortgage to secure the same. Subsequently she purchased from Alto F. Klinke, a non-borrowing member,his withdrawal claim not yet payable,which was equal to the amount due on her mortgage, and thereupon gave notice to the association that she desired to pay off her mortgage with said withdrawal claim.

<p>1. Inherent power exists in a club incorporated not for profit, to expel for sufficient cause, one of its members who is a stockholder in the corporation, and the corporation may enact by-laws conferring this power on a committee or board. In the absence of such delegation the power must be exercised by the corporation at large.</p> <p>2. But such member must have reason"able opportunity to be heard and defend against charges preferred against him, without which opportunity any expulsion would be void</p> <p>3. A member acquiring membership in the club by virtue of one of the provisions of its by-laws, is estopped to deny his obligation to be bound by rules and regulations which are a part of the same by-laws, governing his conduct as.such member, on the ground that such by-laws had not legally been adopted.</p> <p>4. The proper remedy of a member of such club who has illegally been expelled, is by injunction and not mandamus, or an action for damages.</p>

<p>The probate court granted an order to the assignees in insolvency to sell a large quantity of stocks of the assignor, at private sale, the creditors not being a party to said proceeding. After a sale had been made of said stocks, motions were made by two unsecured creditors to set aside said sale, on the ground that said stocks were not sold for the highest price attainable therefor, and said motions were overruled and the sale confirmed.</p> <p>Held: That the order confirming said sale and overruling the motions to set aside the sale, was a definitive and final order, and so affected property rights, that an appeal will lie, from such order, to the court of common pleas.</p>

<p>Where the contract for transportation is made with the consignor, he may sue for its breach in the failure to carry and safely deliver, whether he retains any property in the goods or not, the recovery being for the benefit of the consignee if he was the real owner.</p> <p>A return of the bill of lading by the consignee to the consignor must he regarded as a transfer by the consignee of all the rights and interest in the bill of lading and the claims represented thereby, to the consignor.</p> <p>A provision in a bill of lading that “the company agrees to carry the goods to the said destination, if on its road, otherwise to deliver to another carrier on* the route to destination’ ’ while a limitation of the company’s liability to that extent, yet its obligation is not satisfied by delivery to a wharfboat, but its liability as common carrier continues until actual delivery to another carrier; and if the goods are destroyed by the burning of the wharfboat, the company is liable for the loss.</p>

<p>In proceedings in aid of execution against a superintendent of a county infirmary, which seek to seize his wages or salary, the county has a right to withhold so much of such salary or wages as is necessary to pay the taxes of the superintendent, and it is not required to resort to the tax liens.</p> <p>The wages or salary of a superintendent of a county infirmary, earned within three months — he being the head of a family — are “personal earnings, ” within the meaning of section 5430, Revised Statutes of Ohio, and as such, exempt from execution, if the same are necessary for the support of himself and family.</p> <p>A watch and chain of reasonable value, habitually worn by a person, are “wearing apparel, ’ ’ and are exempt under said section 5430, which gives to heads of families “the wearing apparel of such person or family.”</p>

<p>On demurrer to petition.</p>

<p>(1.) In enforcing the lien for the Dow Tax it is sufficient for the count) treasurer to allege in his petition that the tax stands charged on the duplicate against the premises — describing them — the amount thereof, and that the same are unpaid.</p> <p>(2.) The lien for the Dow Taxis superior to prior mortgage liens for the-amount of tax only which the act in force called for at the time the mortgage lien was created.</p> <p>(3.) Under the amended act of February 20, 1896, in which the amount of the tax was raised from $250, to $350, the lien is superior to prior liens which became liens prior to the passage of the amended act, and while the original act was in force, for the sum of $250 and the penalties and interest thereon only; but the tax for the extra $100 is valid against the person upon whom it was assessed, and the lien therefor is superior to all liens created after its passage, except prior liens for taxes.</p>

<p>1. A contract whereby city convicts are hired to a corporation,is not inhibited by section 6 of article 8 of the state constitution, forbidding any city from becoming a stockholder in or raising money for or loaning its credit to any corporation.</p> <p>2. The making of such a contract by the board of police commissioners (a state board) is not an exercise of any corporate power conferred upon the city, and consequently is not in violation of section 1777 R. S.</p> <p>3. If such a contract is in violation of section 7432-1 R. R., the remedy is not by injunction against its execution, but would be in an action brought subsequent to its execution at the instance of the labor commissioner and attorney general.</p> <p>4. Whether such a contract would be good or bad policy must be determined by the legislature, and not by the courts.</p>

<p>1. Where a cause of action is alleged as against a wife alone on a promissory note upon which she is jointly and severally liable with her husband, it is not necessary to join the husband or his estate in the action.</p> <p>2. No recovery can be had against a married woman upon such promissory note unless it appear, either by specific allegation or competent proof, that she has separate property to be charged therewith.</p>

<p>Whatever errors may have appeared in a partition proceeding, can only be corrected by proceedings in error, instituted by the party aggrieved thereby, and such party cannot attack it collaterally in some other proceeding brought, to set aside the original partition.</p> <p>A person standing in the capacity of a trustee, but having an interest in the property, may buy in the property in a sale, under a proceeding instituted by a third party.</p> <p>In partition proceedings, where a party interested either personally or as a trustee, becomes the purchaser, the law does not contemplate that such purchaser should actually pay over such amount. But if in the accounting the purchaser acknowledges to have received that money either in his personal capacity- or as trustee, then in that capacity a receipt so given is equivalent to actually receiving the money in cash.</p>

<p>If, before the institution of a suit to assess the double liability of stockholders in an Ohio corporation to pay corporate creditors, it is not known that the stockholders must be assessed in the maximum amount, and th<.t fact is not ascertained until the report of the referee comes in, interest can be charged against stockholders only from rhe date of the confirmation of the referee’s report.</p>

<p>Sec. 7032, Revised Statutes,, prohibiting participating in, or exhibiting to the public any base ball playing, on the first day of the week commonly called Sunday, is constitutional.</p>

Demurrer to defendant’s answer to plaintiff’s petition for a writ of mandamus to compel the defendant, Minor G. Norton. Director of Law and Corporation Counsel of the city of Cleveland, to approve the legal form and correctness of a contract between the plaintiff. M. F. Bramley. and the city, for the doing of paving work therein. Statement of Facts. The facts fully appear in the pleadings.

<p>Where an incorporated company, having used part of its earnings for extensions and improvements which add to the value of its property, issues to its shareholders scrip certificates in proportion to the amount of stock held by them, which provide:</p> <p>“This is to certify that — -----will be entitled, upon the surrender of this certificate, to — shares of ten dollars each, of the capital stock of this company, whenever and so soon as such capital stock shall be increased $151,200 or more, above the present amount thereof; and until such increase is made and this certificate surrendered for conversion, dividends from the earnings of the company or from the proceeds of the sale of its property, whether paid in money or in scrip, shall be paid to the owner of this certificate appearing as such upon the books of the ’ company, pro rata with, and the same as to the owners of the shares of the capital stock,' provided, however, that if at the time of the increase of the capital stock, there shall exist any legal disability which will prevent the conversion of this certificate into stock, there shall be paid to the owner thereof, upon demand, and its surrender, the par value in money, of the share as herein provided for. ” Held, that such scrip certificates are not property in the hands of or under the control of the stockholders, within the meaning of our statutes, and are not taxable in their hands.</p>

<p>A mortgagee of chattel property described in sees. 4155-1, of the Revised Statutes of Ohio, must foreclose his mortgage in a court of record; and any procedings at law intended to evade this rule and to accomplish by indirection what in effect would be a foreclosure will be enjoined hy a court of equity. Such a mortgagee will not be permitted, after having secured a judgment for his debt before a magistrate, to levy upon such mortgaged property and sell the same upon levy and execution.</p>

<p>Secs.822-3-84, Rev. Stat., (Smith & Benedict), regulating “the construction of buildings within any city of the first grade of the first class” by permitting-cellar excavations to the full depth of twelve feet below the established grade of the street whereon the street abuts, is a law of a general nature, without uniform operation throughout the state, and is therefore unconstitutional.</p> <p>But sec.2676, Rev.Stat., (Smith & Benedict), imposing liability for damages to any wall by reasons of excavation upon the adjoining lot to a greater depth than nine feet,does not come within the-constitutional inhibition, because of its applicability wherever within the state people dig cellars immediately adjacent to the walls of their neighbors.</p>

<p>Emission of, dense smoke — Ordinance to suppress —</p> <p>The ordinance of the city of Cleveland providing that “the emission of dense smoke from any chimney anywhere in the city, o from the smoke-stack of any boat, locomotive, or stationary engine or boiler, within the limits of the city of Cleveland, shall be deemed and is hereby declared to be a public nuisance, ” and providing for punishment therefor, is invalid, because:</p> <p>First, the ordinance is indefinite, uncertain and vague.</p> <p>Secondly, the city council transcended its power, granted to it by the legislature, in declaring the emission of smoke per se a nuisance.</p> <p>Thirdly, the city council exceeded its grant of power in that it prohibits the emission of smoke under any and all circumstances, and at any time, instead of regulacing the same.</p> <p>The word “dense,” as used in the ordinance. is uncertain, indefinite and '’ague. What may appear dense in the eyes of one, may not appear so in the eyes of another.</p>

<p>In order to constitute disseizen of the co-tenant there must be some overt act of an unequivocal character to the denial and exclusion of the right of the other co-tenants in the entire premises, llie mere occupancy by one tenant of the common premises, is no evidence of the ouster of the co-tenant.</p>

<p>Debt and liability from heir, etc., to estate—</p> <p>1. The administrator or executor of a deceased person’s estate has a right to retain out of the distributive share of an heir or legatee, an amount equal to all the debts owing by the heir or legatee to the estate. The right exists whether the heir or legatee was indebted to the deceased before his death, or contracted a liability to the estate thereafter, or became in any way indebted to the estate at any time.</p> <p>Rules of equity applied—</p> <p>2. The settlement and distribution of estates, belonging to courts of equity rather than to courts at law, the principles and doctrines of equity will be applied to matters arising therein.</p> <p>A debt due from an heir is an asset—</p> <p>3. A debt due from an heir or legatee to an estate is an asset of such estate, and where the distributive portion of such heir or legatee is equal to, or# greater than such debt, the administrator or executor should charge himself with the full amount of the same.</p>

<p>1. Section 3718a,giving justices of the peace jurisdiction in eases of" violation of laws to prevent adulteration and deception in the sale of dairy products and drugs and medicines does not confer jurisdiction upon justices of the peace for violations of sec. 6957, of the Rev. Stats., of the state of Ohio.</p> <p>2. Section 6957, is a statute regulating the sale of poisons,and applies to the ordinary and common transactions of life in the sale of poisons in Ohio, and does not apply to sales of mixtures compounded as medicine, proprietary or prescribed by a physician, even though such medicine contain poisons in solution or in a free state.</p> <p>3. Defendant sold a bottle of Mrs. Winslow’s Soothing Syrup, which is a proprietary medicine consisting of a mechanical mixture of about, one-tenth of a grain of morphine to the fluid ounce, being less than one per cent., and flftyflve per cent, of sugar, about six per cent, of alcohol, and about one per cent, of the oil of anise and the balance, thirty-seven per cent., of water, with a trace of sodium, accompanied with proper directions for use.</p> <p>Defendant offered to show that this mechanical mixture was a useful remedy and a beneficial medicine, and that as a mixture it was non-poisonous, restorative and curative.</p> <p>Held: That, it was error to exclude such evidence, and that such' evidence, if true, took the transaction out of the provisions of sec. 6957.</p>

<p>1. Under sec. 5995, it is mandatory upon the Judge of the Probate Court to appoint the person named, in the will of a deceased person, the will being properly probated, if he offers to give sufficient bond, if required, and he is legally competent.</p> <p>2 A person not a minor,-an idiot, lunatic or insane, is legally competent to receive the appointment as executor in Ohio.</p> <p>3. The fact that a contest is pending to set aside a will, or that the person named in the will as executor, is opposed by a large number of the devises in the will, will not prevent the appointment.</p>

<p>Proceedings in aid of execution—</p> <p>A receiver will be appointed under sec. 5483-5484, Bev. Stat., where it is shown that the debtor has fraudulently or suspiciously fraudulently transferred his property to others, who hold and claim to own the same, when there is a strong possibility that if a receiver were appointed, some of the property could be recovered and money realized therefrom applied on the creditor’s judgment.</p> <p>A debtor cannot give away his property unless he retain amply sufficient to pay all his debts. He must be just before the law will allow him to be generous.</p>

This case was submitted upon the following agreed statement of facts: Plaintiff and defendant respectfully present to the court a submission of the following controversy between them, and agree upon the following case, to-wit: The plaintiff claims to recover of the defendant, the sum of two hundred and twenty-four dollars and eighty cents, ($224.80), with interest thereon from the 9th day of November, 1896, on the following facts: The city of Cincinnati is a municipal…

<p>Implied warranty of fitness of machine sold for hnown purpose—</p> <p>A warranty that a certain machine would do a particular thing, where in itself collateral to the sale which would be complete without it, would be part of the description and essential to the identity of the thing sold; and to admit parql proof of such an engagement would be to add another term to the written contract, contrary to the settled and salutary rule upon that subject.</p> <p>The fact alone, that a known, described and definite ariele is ordered of a manufacturer for a known purpose, does not create an implied warranty of fitness, because that act alone is not sufficient to overthrow a presumption that the buyer relied on his own judgment. But a warranty of fitness in the sale of a specific chattel may be implied where it appears from all the circumstances surrounding the transaction that it was understood between the parties that the buyer should rely upon the judgment of the seller, and not upon his own judgment, that the article purchased would accomplish a purpose made known to the seller. The fundamental inquiry must always be, whether, under the circumstances of the particular case, the buyer had the right to rely, and necessarily relied on the judgment of the seller, and not upon his own.</p> <p>Where an article, not then in existence, is ordered of a manufacturer and is intended for a particular purpose, which purpose may be shown by parol, the contract being executory in its character, the law of caveat emptor does not apply, but the law implies a warranty that the article will answer that purpose; and this, although the thing to be made is one of a specific kind, but is notin esse at the time; for the purchaser can exercise no judgment in regard to the quality of a thing not in esse, or which is indeterminate and to be therefore selected or procured by the exercise of the vendor’s sole judgment, discretion and will.</p>

<p>Constitutional law — Municipal corporations — Eminent domain — Statutory provisions must be complied with, to appropri ate property for street purposes—</p> <p>A co-tenant by accepting the money paid into court by the city for lands appropriated by the city for widening a street, thereby estops himself to question the validity of the appropriation proceedings, but his co-tenant is not so es-topped by such acceptance of the money by the other, because a part owner can not either by grant or estoppel create an easement in land against his co-tenant.</p>

A swing was suspended in one of the streets of the defendant village a few feet from the curb line. As the plaintiff was driving past in a covered buggy, a little girl gave the swing a push into the street. The loop of the swing fell over the top of the buggy, and pulled it off and injured the plaintiff, who brought the present action for damages. Heard on demurrer.

<p>In determining whether the owners of three-fourth of the feet fronting on a street the improvement of which is petitioned for, have signed the petition, corner lots are calculated at the full length at which they bound on the street, and not merely at the number of feet for which they can be assessed under the Haviland case.</p>

<p>Attachment of earnings before J. P.—</p> <p>“The nature of plaintiff’s claim to be stated in the affidavit for an attachment, as used in the statute, mean an account, or a note or judgment, or a check, or a like description of the nature of the claim. • It is not sufficient to allege that it is for goods sold.and delivered.</p> <p>The bond must be fixed in double the amount of the claim stated in bill of particulars, but it is not required that the justice must ascertain the exact amount of principal and interest that is due before he issues the attachment, and if an exact figuring would show that the undertaking lacked a trifle of being-double the amount of the claim, the attachment need not be discharged therefor, but there must be a substantial compliance with this statute in fixing the amount of the undertaking in double the amount of the claim.</p> <p>Where it is sought to attach the excess of personal earnings of the debtor .within three months before commencement of the suit, the affidavit should state that such earnings amount to, more than $150, and that such excess is not exempt.</p> <p>Where the defendant shows by counter-affidavits that he was at the time the attachment was issued, and still is a resident of this state, and the head of a family, dependent upon him for support, and that his entire earnings, for said period of three months, including the amount held upon the attachment, were necessary for the support of his family, and demanded that they be set off to him as exempt, which evidence is not controverted by plaintiff, then the property attached was exempt, and the attachment should be discharged.</p> <p>Where the attachment was issued upon the ground that the defendant fraudulently contracted the debt, and the defendant by counter-affidavit denies this, the burden is thereby thrown upon the plaintiff to sustain his charge that the debt was fraudulently contracted,and if the plaintiff fails to sustain that burden, and thereby to sustain the attachment, the attachment must be discharged.</p>

<p>An assignor can not claim homestead exemption against a fund distributable under a mortgage that has been decreed to inure to the benefit of all his creditors.</p> <p>(See decision of Hamilton County Court of Insolvency to same effect in same case, 2 Nisi Prius, 380.).</p>

<p>Jurisdiction of Justice in attachment— Non-resident of township — Sections 582, 583 and 584, construed—</p> <p>The defendant was a resident of Columbiana township, and the constable failed to attach property, but served defendant personally. The Justice tried the cause, and held that jurisdiction was complete, upon the issuance of a summons, accompanied with an order of attachment from his court to the constable.</p>

<p>A chattel mortgagee who perfects his security by filing the mortgage before others who were given mortgages at the same time, is, by reason of diligence, and in the absence of an agreement or fraud, entitled to priority.</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>“Legal heirs", as beneficiaries in a policy of a National Accident Ins Co., issued to one having no wife and children, means next of kin as distributees under the statute of descents, and the insurance money is not subject to the claims of the creditors of the assured.</p>

The plaintiffs are the owners of the fee to the property known as the Germania Hotel, which is under a perpetual lease containing covenants to pay rents and taxes, binding upon the lessee, his heirs, executors, administrators and assigns. This lease was assigned to one Wm.

<p>Under our statute as recently amended, the court may refuse to a person, otherwise entitled thereto, the appointment as administrator on the ground of unsuitableness or bad character.</p> <p>A widow is entitled to the statutory one year’s support although heríate husband had separated from her on account of her bad character. Nothing but divorce will deprive her of the statutory right to a year’s allowance.</p>

<p>Where the will devised testator’s real and personal property, first, to his wife, Margaretha, for life, and then to his only child, Anna E. C., to her children and grand-children or their legal representatives. Held: That the devise must be construed to give the daughter Anna a fee in the property, and it appearing that she had neither children nor grandchildren at the time the will was executed, or at the death of the testator, and that she had no child en ventre sa mere at the last named time, the fee to the whole property was vested in her by the devise. If the last fact, that there was no child en ventre sa mere, is not set out in the petition, the same should be amended.</p> <p>The use of the term “grandchildren” as well as “children” makes it manifest that the testator used them both in the sense of heirs. The term “children” is usually a word of purchase, and not of limitation. But when it is used as the synonym of the term “heirs,” it isa word of limitation.</p>

<p>1. When a referee is ordered “to take the testimony,” and “to report said testimony,” and certifies that his report contains “testimony taken before” him, and that his conclusions are based upon the “said evidence,’’there arises a necessary implication that the testimony reported is all of the testimony taken.</p> <p>2. When documents and books purporting to be exhibits, although neither actually attached to the bill of exceptions, nor in express language made a part of the bill, are all marked as exhibits, appropriately and consecutively lettered or numbered; are identified by the name of the referee; bear the file-mark of the clerk and the proper case numeral, and each is referred to in the testimony by its number or letter, as an exhibit, marked by the referree and offered in evidence, they are sufficiently referred to, to enable this court to identify them.</p> <p>3. When a referee is appointed with instructions to report by a day certain,but fails to do so, and takes testimony, hears arguments, makes his findings,' passes on motions,signs bills of exceptions, and files his report, all after the time fixed, a party in interest cannot be permitted to complain of the findings if he has participated in the proceedings without specific objection to the referee’s want of power.</p>

<p>The board of county commissioners cannot under pretense of “repairing, improving or enlarging” the court house, proceed under sec. 870, R. S., to in fact build a new court house at an expense of more than $10,000 without submitting the question to a vote of the people.</p> <p>The fact that the county commissioners in their resolution declare the proposed improvement to be “repairing, improving and enlarging” the court house, is not conclusive on the court.</p>

<p>Garnishees should not be added as defendants nor named in the caption of the petition.</p>

<p>A member of a building association claiming to have been first on the “withdrawal list,’’ refused payment in full after the association has passed into the hands of a receiver.</p>

<p>Where an attachment is based on removal of property for the purpose of defrauding creditors, the burden of proof is upon the plaintiff — The intent to defraud must be shown.</p>

<p>Mandamus does not lie to compel restoration to church membership.</p>

<p>Any label which is merely descriptive of the ingredients, mode of composition, characteristic properties, quality or nature of the article to which it is attached, is not the subject of trade-mark. To render a label such a device as to make it the subject of a trade mark, it must be fanciful or arbitrary, and have no reference whatever to the ingredients, mode of composition, characteristic properties, quality or nature of the article to which it is attached.</p> <p>False representations of trade-marks deprive their owners of legal protection.</p> <p>It is immaterial whether the representation be contained in the trade-marx itself or not, or made in the conduct of the business if it is such as would disentitle a party to the protection of the court.</p>

<p>An attorney giving advice to his client -on which such client acted, is not liable 'for damages to a third party who claims to have been damaged by such action of -such attorneys client.</p> <p>The appeal bond in a case appealed 'from a J. P., must be filed within ten days, and where the tenth day is Sunday, it may be given on the Monday following, under sec. 4951, Rev. Stat.</p>

<p>''' Attachment — Non-residence of plaintiffs —Exemption law of the state of defendant’s residence — Failure to give security for costs not jurisdictional—</p>

<p>Conversion and attachment — Tort and' tortious elements — Replevin and change of remedy—</p>

<p>Where, on mandamus to compel a city to award a contract for public work to relator as the lowest responsible bidder, the lower court has dismissed the proceeding, but on error the circuit court -reverses the judgment below, and finds the relator entitled to the contract, but in the meantime the contract has been -awarded to other parties and fully performed, the relator having done nothing to prevent such action, the damages to which the relator would be entitled under sec. 6758, R. S., are not the prospective profits which would have been accrued to relator if the contract had been awarded to him, but only such damages as he has suffered by the delay caused by the refusal to award him the contract, and the costs.</p>

<p>Murder — First degree — Jury recommending defendant to merey — Application of new law to that effect—</p>

<p>In a separate instrument which recited that it was executed in consideration of one dollar and other valuable consideration paid to it by a bank, M. agreed with the bank that she would guarantee the payee of the L. Co., a foreign corporation, to a certain amount. The instrument having been delivered to the bank it loaned the L. Co. upon its note the sum of §5,000.00, which amount was less than the amount stipulated for in the guaranty. The note not having been paid at its maturity and M. having been notified of such default, requested the bank to bring suit forthwith against the L. C. The bank did not bring suit as requested. Subsequently the L. Co. became insolvent and was wound up by the courts through a receiver.</p> <p>Held: That sec. 5833, of the Rev. Stat., which provides that in certain cases then enumerated, when a surety requests a creditor'to bring suit against the principal and he fails to do so, the surety is released does not apply to this case.</p>

<p>The shareholders of a corporation are entitled to relief in equity against an actual or threatened waste or misapplication of its corporate funds, and may bring a suit for that purpose in the name of the corporation, unless it appears that the directors refuse to prosecute, or are themselves the guilty parties answerable for the wrong. If they do thus refuse, or are thus answerable, the shareholders may sue in their own names; but in such a case, the corporation must be made a defendant, either solely or jointly, with the directors sought to be charged,</p> <p>Spurious certificates of stock of a corporation, issued by the officer having apparent authority to do so, undistinguishable upon their face from the certificates of genuine stock, and outstanding in the hands of numerous holders as evidences of interests in the property of the corporation, are clouds upon the title of the genuine stockholders which a court of equity will remove. The directors of the corporation may institute a suit for this purpose, not as trustees of the property and funds under their control, asking advice and aid for their own benefit, but as the representatives of the genuine stockholders and in their behalf, and if they refuse to bring such suit, a stockholder may bring it, making the corporation a co-defendant.</p> <p>Sec. 5651, R. S.,et seq., provide a specific manner or mode by which corporations may be dissolved; and this is exclusive, and the court, in the exercise of its general control and power over corporations,has no jurisdiction to order a dissolution of the corporation at the suit of any less number than that contemplated by the sections named, or in any other manner different from that contemplated by the statute.</p> <p>A provisional receivership is, in effect, an injunction, and is to be granted with great caution, and only in a case of pressing apparent necessity. The appointment of a receiver is an equitable remedy, and bears' a similar relation to courts of equity that proceedings in attachments near to courts of law.</p>

(Charles E. Miesse, who sues on his own behalf, as well as on behalf of each and all of the creditors and depositors of The Fifth Avenue Savings. Bank, and Mary E. Thomas, who sues on her own behalf, as well as on behalf of each and all the stockholders .of said The Fifth Avenue Savings Bank v. JamesM.

<p>(1) . Unless the writing itself sets out a contract for one year,a mere continuance under it after the expiration of the year, can not give to it a provision which it lacks. To constitute a contract for a year, parties must have agreed not only that the contract shall extend as long as a year, but also that it shall expire and end with the expiration of a year.'</p> <p>(2) . The fixiíig of compensation at a yearly rate, of itself constitutes no contract for a year, but is one circumstance which might be taken into consideration in connection with other circumstances in arriving at what intention there was about limiting the life of the contract possessed the parties.</p>

<p>On demurrer to petition.</p>

<p>Two partners admitted several junior members into the partnership under a partnership contract which provided that if any of the two. senior partners died during the term, his interest should' be taken by the other partners, they to pay to his estate therefor the value thereof 'as fixed by an appraisement to be had in a certain manner. On the death of one of the senior partners the other partners, under an arrangement with the executor, liquidated the interest of the deceased under a valuation and appraisement which was a fraud upon his estate. In an action by the beneficiaries of the estate against the partners and the executors to set aside the appraisement and for an accounting, Held, the defendants are not holding a trust fund for the beneficiaries of the estate. A trust fund could have arisen only after an appraisement and after somebody had received the purchase price; and could have no existence save by virtue of the execution of the appraisement.</p> <p>(2). Under the articles, the surviving partners had to take the interest of the deceased, whether or no. On his death the title to the assets vested in the survivors in their own right,and not in trust for the beneficiaries of his estate, to whom they were indebted in a sum to be ascertained in a certain stipulated manner. If, by reason of fraud in the appraisement, the price was not fairly ascertained, the remedy is not against the partners as trustees, for they are not trustees; buc is either for a re-appraisementif such can be had, or the ascertainment of the proper sum by a judicial tribunal.</p> <p>(3.) The executors are liable because of their fiduciary duty to realize the proper amount from the value of the interest of the deceased, and because of fraudulent administration in not realizing it. The obligations of the partners arise out of the partnership articles and not out of the fraud; so that the cause of action against the surviving partners does not affect the executors, and the cause of action against the executors does not affect the surviving' partners, and there is a misjoinder of causes of action.</p> <p>(4). As to the statute of limitations, the alleged cause of action against the executors (as suchl does not draw to it the ten year statute, sec. 4985. There is at bar no right to an account against partners shown; the right against them is to recover only the fair purchase price when properly ascertained, and there is shown against the executors (as such) no right to an acounting, for the reason that no trust funds have been received by them; the right against them grows out of, not what they have received, but out of their collusion in a fraudulent appraisement; out of their mal-performance of fiduciary duties, the nature of the mal-performance being such as to constitute fraud, and the four years statute governs.</p>

<p>Action on a bond given in pursuance of the provisions of an act, “to prevent abandonment a,nd pauperism” (87 O. L., 216, April 16, 1890) must be maintained in the name of and on behalf of the state.</p>

<p>Where.the petition shows that the purpose is to divest the duly elected officers of a solvent corporation of the conduct of its affairs, by the appointment of a receiver, and that no ultimate relief is sought, saving the mere appointing of a receiver, and the disposing of the affairs of the corporation into his hands, while the directors show that they were quite ready to be relieved of the duty of paying attention to their own affairs, and glad to abandon the performance of their trust in case the court should feel a willingness to assume their functions, the prayer for a receiver should be refused.</p> <p>The term “estoppel” is no synonym for mere “assent;” it is necessary to the operation of an estoppel, first, that some one should urge it, and second, that he who did urge, must cause it to appear how in some wise or other he'would be-made to undergo a mischief in case the party to be estopped has suffered to deny a construction possible to be put upon his prior act or conduct.</p>

<p>The clerk of the common pleas court 'has to perform any and all duties which the court might impose, or which, in the •administration of the common law he should do, or the court might order done as an exercise of its judicial functions. And therefore the clerk would be the legal custodian of money ordered paid into court by the court, or paid in on .judgments'.</p> <p>The bond of the clerk of court of Hamilton county, only designates that officer :as“Clerk of the court of Common Pleas,” but the term “Clerk of the Common Pleas court” is simply his title, designated under the constitution of Ohio, Art. 4, sec. 16, as such, and by virtue of the statute,after his election,lie becomes •clerk of the superior court and circuit court; and while he is elected as clerk •of the court of common pleas, and the bond given as running to the clerk of the •court of common pleas, nevertheless it would embrace all the courts of' which '•by law he might be their clerk, and his bond would be liable for whatever shortage might exist for the amounts collected or due in the superior and circuit courts, although the bond was executed, running as clerk of the court of common pleas.</p> <p>Where the clerk, in paying the deputies and clerks in his office, did not conform to the law in the manner of payment, that is, by depositing the money with the treasurer, and then issuing a warrant to pay his deputies,nevertheless, the money so paid was due to the deputies and clerks in his office, and should have been paid to them,and so far as the bondsmen are concerned,they would have the right, under the statute, to set off any equitable claim which might exist against their liability.</p> <p>Where the clerk deposited money in a bank, as clerk, the bank can not charge amounts paid on individual checks of the clerk against the fund deposited by him as clerk,even though the individual checks so paid had printed upon them the words, “county clerk.”</p> <p>The bond of the clerk is liable for whatever money came into his hands by virtue of his office, whether properly so or improperly.</p>

<p>1. A physician, when he accepts employment, obligates himself that he will exercise reasonable and ordinary skill in the discharge of such employment.</p> <p>2. A physician is under no obligation, while a party is his patient, to tell patient or near relatives that broken fragments of needles have been left in the body.</p>

<p>Courts have no favorable regard for judgments by confession obtained upon the last day of a term and without notice to the judgment debtor.</p> <p>A grant of power to confess judgment to “any attorney” is a grant to no one any more than to another one,and hence 5s not of such definiteness as to constitute any grant at all.</p> <p>But that this question must be held to 'be foreclosed y the custom of courts of last resort in their dealings with such cases.</p> <p>If a note authorized judgment to be confessed in “any court of record” without specific mention of one state or another, judgment without the state wherein the note was given would be void: upon the ground that the parties must be said to have had in mind only ¡the courts of that particluar state wherein they happened to be, but that a judgment obtained within that state would be held a good judgment, for the same reason.</p> <p>A note payable to bearer, passes by mere delivery; and the holder never makes any title through any assignment but claims merely as bearer.</p> <p>Whether the warrant of attorney can be executed for the benefit of a holder of the note other than the payee, must depend upon the language of the warrant itself. But an authority given by warrant of attorney to confess a judgment against the maker of the note, must be clear and explicit, and strictly pursued, and any supposed omissions of the parties can not be supplied.</p> <p>A power of attorney to confess judgment, attached to a note, and forming a part of the same instrument.does not destroy the negotiability of the note. Such power of attorney is not negotiable, and when the note is transferred, becomes invalid and inoperative.</p> <p>Where the power is to “confess judgment against us in favor of the payee above named or assigns. A judgment confessed in favor of the payee and assigns but not in favor of a holder of the note endorsed in blank who is a stranger to the note,and one whose name nowhere appears thereon, either as endorser or otherwise. Such holder is not an assign of the of the note.</p>

<p>Where a suit is dismissed without prejudice, and a second action is begun, the defendant may procure a stay of proceedings in the second case until the costs in the first case have been paid.</p>

<p>Demurrer to answer and cross-petition, where the demurrer should have been to the cross-petition, with motion to strike answer •from the flies.</p>

<p>When the election must be made to take the jury’s award for a structure only part of which stands on the land appropriated.—</p>

The plaintiff in this case was a resident at the time the suit was brought, but after a large amount of costs had been made, he removed to Kentucky. The present motion raised the question whether ar order requiring him to now give security for costs, on the ground of non-residence, should include security for costs made before he became a nonresident. On motion for security for costs.

<p>Accident policy construed—</p> <p>Loss of “one entire hand and one entire foot” $3,000.00, means loss of both, not of either one.</p>

<p>(1.) A tenant who takes possession of premises under and by virtue of a contract for a lease, which lease was never executed, becomes liable for the rents stipulated by said contract to be contained in said lease, the same as if said lease had been executed,so long as he retains possession of said premises.</p> <p>(2) . So long as possession is retained under said contract, the rights of the landlord and tenant inter sese are governed by the terms and conditions of the proposed lease in the same manner as if the said lease had been executed.</p> <p>(3) . At the date of the execution of the contract for a lease in suit, the improvements on the premises proposed to be leased consisted of a one story brick building', the north wall of which was one half upon the lot of an adjacent proprietor ; this wall was a party 'wall, made so by deed executed and delivered between the lessor and said adjacent proprietor, which deed was of record at the time said contract was executed. Acting under said contract, the lessee proceeded to erect a second and third story upon said improvements, using said party wall therefor, placing windows in said party wall overlooking the lot of said adjacent proprietor, which was then vacant.</p> <p>Held, (1). That said lessee was bound by the terms of said party wall deed.</p> <p>(2). Where the lease called for by said contract provided that the lessee should “have and hold the same with the appurtenances to the same”, the lessee acquired an easement in said party wall as an appurtenance to the premises so leased, and took said premises, especially the second and third stories thereof erected by him, subject to a similar easement in favor of said adjoining proprietor; and this although the description of said premises in said lease made no mention of said party wall.</p> <p>(3) . Said adjacent owner subsequently erected a building upon his lot, using therefor said party wall in accordance with said party wall deed, and filled up the window spaces placed by said tenant in the second and third stories so erected by him. These acts did not amount to an eviction of said tenant by said landlord, or to a breach of the landlord's covenant for quiet possession contained in said lease.</p> <p>(4) . The party wall deed providing that the adjacent proprietor when he made use of the wall, should pay to the lessor his proportion of the cost of said party wall, the lessor was entitled to receive said sum upon said use being made; this notwithstanding said contract for a lease provided that the lessor was to pay the cost of said additional improvements erected by the lessee, and notwithstanding that the rent stipulated in said lease was in part based upon the additional cost of said improvement.</p> <p>Quaere — Whether the lessor was bound to allow the lessee a reduction upon the stipulated rent proportional to the amount so received by him from said adjacent proprietor; but the said reduction having been voluntarily allowed in this case, the tenant cannot complain.</p> <p>(5) . The jury, before their verdict is recorded and they are discharged, may be instructed by the court to retire to their jury room to consider whether or not they made a clerical error in the amount of their verdict; and it is not error to so instruct them, if upon retiring, they find said clerical error to have been made, and return a correct verdict.</p>

<p>(1.) A law relating to chattel mortgages-is not unconstitutional for want of uniformity when it is not limited to any particular locality, but operates upon all chattel mortgages similarly situated-throughout the state.</p> <p>(2.) Nor is the till of rights contravened and the equal protection of the laws denied by an act which provides that a certain class of mortgagees can foreclose only in a court of record. Such a provision is a mere dstribution of jurisdiction among-the different courts, and is clearly within the power of the legislature. And further, where chattel roorgag-es are divided by statute into two classes, those in the same-class are “similarly situated.’</p> <p>(3.) If it should be conceded that the provision in section 4155 — 1, R. S., that “if the mortgagee fails to recover the full amount on his petition, the court shall adjudge the cost against him, ” is unconstitutional, the remaining provisionn of the-act would not be thereby invalidated.</p>

<p>1. Where a party avers m his pleading what are claimed to be legal conclusions instead of the facts on which such legal conclusions are based, the adverse party may,by motion to make more definite and certain, ask that such facts be set out. But where the adverse party fails to do this and answers by denial of such averments and setting up new matter, this amounts to a waiver of the objections to his adversary’s pleading.</p> <p>2. The “new matter” in the code of Civil Procedure, sec. 5070, includes matter in confession and avoidance, and involves matter extrinsic to the matter set up in plaintiff’s petition. Confession and avoidance admit directly or impliedly the truth of the allegations constituting plaintiff’s cause of action, but aver other facts which would prevent plaintiff from recovering.</p> <p>3. Where plaintiff by way of anticipation pleads in his petition matters which otherwise would properly be new matter in confession and avoidance to be plead in the answer, an answer of general denial of such matter is sufficient, and defendant need not plead in addition a confession of facts upon which he has been compelled by the pleading of the plaintiff to enter a denial if the facts are true.</p>

<p>1. In determining whether a lawful business shall be enjoined, all the surrounding circumstances will be considered by a court of equity, and evidence of value of plant, the number of men employed, that the works are located in a manufacturing district, the influence of other factories upon the atmosphere and property, and like considerations are properly admitted.</p> <p>2. Even though nominal damages may be awarded, yet the granting uf an injunction rests in the sound discretion of the court,and when the legal right is not clear or the injury doubtful or contingent, equity will not interfere.</p> <p>3. The law does not regard every trifling- injury or noise an actionable nuisance, and, though .a strict legal right may be invaded, injunction does not, as a matter of right, follow such an invasion.</p> <p>4. One is not under a legal duty to consult the tastes and preferences of his neighbor in the use of bis property, and persons living in a great city, seeing fit to locate and live in manufacturing districts, must necessarily submit to annoyances which are incidental to city life in such districts.</p> <p>5. Manfuacturing establishments are necessary and indispensable to the growth and prosperity of every city, and while the cleanliness and duty o'f the city may be marred by a factory, and the comf n-t of life to some extent interfered with, individual comforts must yield to public good.</p> <p>6. In an action for damages by a life - tenant in. possession, growing out of a nuisance, it is not proper to join as plaintiff the remaindermen. There can be no joint recovery therefor where the property itself is not injured.</p>

<p>1. This court has no jurisdiction to supervise the action of the board of directors of the chamber of commerce in the trial of a member of the chamber on a charge of unmercantile conduct</p> <p>2. A member of the chamber of commerce who stands suspended until he submits to a public reprimand is not confronted by an irreparable injury with no adequate remedy .at law, and an injunction in his behalf will not lie against the chamber.</p>

<p>An attachment will lie on the ground that the defendant is a non-resident of the state-under R. S. 5521, subs. 1 and 9, and constructive service may be obtained Dy publication, in an action for special damages-for breach of land contract, notwithstanding the fact that such damages are unliquidated.</p>

<p>1. Where a duty is devolved upon one by law, he can not shift it over upon another (in this case upon a contractor) so as to ex7 onerate himself from the consequences of its non-performance, or its negligent performance.</p> <p>2. Whether or not there was error in the charge to the jury as to matters not material to the real issue, Deed not be considered by the reviewing court.</p> <p>(For a former decision in the same case, by the same court, see 4 Nisi Prius Rep., 229.)</p>

<p>Injunction will not lie against a proposed arbitration.</p>

<p>Separate items of account, evidences of different transactions at different times may, unless treated differently by the_ parties, be made the subject of several suits, as if separate causes of action, and a suit pending on some of such items of account is not a bar to recovery on the other items or accounts, the penalty, if any, theiefor being limited by section 6527, R. S., to an inhibition against recovery of costs.</p>

<p>A religious corporation can only be bound, by its board of trustees acting as a body, and a contract made by members of the board of trustees,constituting a majority of the board, but acting separately and not collectively as a board at a meeting regularly called, will not bind the corporation, but such members will be -individually liable.</p>

<p>(1) . The owner, publisher, manager or editor of a newspaper, having the power to control the policy thereof, and the right to determine what shall appear in the columns thereof, cannot escape liability for any libel appearing in the columns of the paper so under his control by merely employing others to write the article, or by the mer.e employment of a managing editor for such paper. If he, in fact, retains the .power to control the poliev of such newspaper and to decide upon the contents thereof, he is still liable for the publication of libelous articles although written or inserted by or under the direction of his subordinates, if by the exercise of ordinary care he could have prevented it.</p> <p>(2) . It is not the office of an innuendo to add to the natural sense or Import of the language used by the defendant; and if the indictment cannot be sustained on the •ground of the natural and common meaning of the language, in its usual acceptation, or as pointed out by the preliminary statement, it cannot be aided by asserting ever so strongly,by way of innuendo, the offensive meaning of the language.</p> <p>(3) . It is the province of the court to say whether the language used will, in law,bear the interpretation given to it by the innuendoes, but it is for the jury to say whether this is the meaning of the language used, construing the words in tneir usual -and ordinary sense and meaning, and applied to the circumstances under which they were so used.</p>

<p>Where the real gravamen of a petition is that libelous placards are being maliciously displayed in the street in front of the plaintiff’s place of business with intent to injure the business, an injunction against such use of the street will not lie. An injunction can only issue when the consequences from the direct act complained of are such as to impede and obstruct the use of the street, and the plaintiff can show that certain special damage results to him therefrom, which differs in degree from that suffered by the public in general.</p>

<p>An appeal lies from a refusal by the court of iusolevcny to administer upon property declared to have been conveyed in fraud of creditors.</p> <p>Where the superior court (whose decree in this case has been affirmed by the circuit court) fails to find that no notice of the pendency of the suit or notice to other creditors was given, and does not order that its judgment, (that the conveyance wa's in fraud of creditors) be certified to the court of insolvency to administer the trust the for the benefit of all the creditors, there is error which was jurisdictional and which cannot be overlooked or the defect supplied in the present appeal.</p>

<p>Where a lessee for five years erects without contract with the lessor, or his consent, up on the leased premises, a substantial frame buiding to be used as an office in connection with the lessee’s business; but which was capable of being used, aDd was in fact also used for other purposes and other business than lessee’s, and was firmly attached to posts let into the ground, such building is not a trade fixture which lessee may remove at the end of the term, but passes under a mortgage made by the lessor before the lease was executed.</p>

<p>On Motion for new trial.</p>

<p>Dow Law Tax — What will not be “sales made at the manufactory by the manufacturer”—</p>

On demurrer to the third, fourth and sixth causes of action set up in the petition.

Heard on application to reduce the widow’s allowance. The appraisers of the estate set off to the widow, under the provisions of section 6240, the sum of $1,000 for the widow’s first year’s support. The Woodburn Loan <& Building Association, a creditor of the estate, applied for a reduction of the allowance on the ground that it was excessive, and that the estate of the decedent is insolvent.

<p>Damages for depreciated market valúe of property due to a nuisance arising from the operation of defendant’s plant, are prospective, and can only be allowed justly and logically in actions in their' nature for permanent injury.</p>

<p>Mere silence or forbearance on the part of the property owner will not estop him from resisting by all legal and equitable remedies an assessment for an improvement made by the municipal officers under an unconstitutional legislative act or made without authority of law.</p>

<p>1. When a covenantee of seizin and quiet enjoyment is unable to obtain possession in consequence of an existing possession by a person claiming and holding under an elder title, that is equivalent to an eviction. But the adverse possessor must hold under a paramount title. To claim under it is not enough. It must be in fact such a paramount title, not merely a claimed or alleged one.</p> <p>2. The covenantor is not liable for any adverse occupancy before the making of his covenant,or for damages caused by any subsequent trespass.</p> <p>3. It is lawful for one having a perfect title, to‘convey it to another, whether or not he is in actual possession of the property. Having such title he may covenant with his grantee that he is well seized of the premises as a good and indefeasible estate in fee simple, and a tortious adverse possession will not constitute a breach of his covenant.</p> <p>4. Ihe covenant of seizin and that for quiet enjoyment are substantially analogous. If there is a distinction, the one, for quiet enjoyment would seem more applicable than the other to the protection of the grantee or lessee, against a tortious possession.</p> <p>5. In case of doubt as to the validity of an adverse claim, our statute, sec. 5780, R. S., has provided a safeguard to a vendee sued for the purchase money of the land-which he has bought.</p>

<p>(1.) A divorced man living with an unmarried minor son, is a widower within the meaning of section 5435 & 5441, and is entitled to the homestead exemptions therein provided.</p> <p>(2.) In eases of assignment, the facts existing at the time the assignment is made, control where an exemption is claimed under section 5435, 5438 and 5441.</p> <p>(3.) When it is claimed under section 5440, the facts existing.at the time the order of distribution is made, probably control.</p> <p>(4.) a When a material man furnishes suitable material to a person who he knows is erecting a building, the law presumes that the materials are furnished for that building.</p> <p>(5.) 5 Likewise it will presume that the material man intends to retain the right the law gives him of a lien for the materials furnished.</p> <p>(6.) c He will not lose such right unless there is an agreement or understanding to that effect.</p> <p>(7.) d There must be something more than mere knowledge that a buildiDg is being built and the supplying of orders for suitable materials in order to constitute a “continuing,subsisting” or “entire” contract within the meaning of the Mechanic’s Lien Law.</p> <p>(8.) f The mere fact of giving a promissory note, will not be a waiver of the lien'.</p> <p>(9.) g If the note is negotiated and the owner still remains liable as indorser thereon, the lien will not be waived.</p> <p>(10.) h It is sufficient if the original payee has possession and is the owner of the note at the time the order of payment is made on the lien.</p> <p>(11.) i If enough appears in the description of the premises to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty to the exclusion of others, it will be sufficient.</p> <p>(12.) 7s When a mechanic’s lien is filed after the deed of assignment, and the affidavit states that the contract is not in writing, the amounts and times of payment thereunder need not be stated.</p> <p>(13.) I Query. Is it necessary in any case where the contract is not in writing to state the “amounts and times of payment thereunder”, in the affidavit for a mechanic’s lien?</p> <p>(14.) e Where a builder informs a material man that he intends to build and desires him to furnish the lumber, even though no price is agreed upon or time of payment, and the articles are furnished as ordered, from time to time, the contract is entire.</p> <p>(15.) -In order that the acceptance of a promissory note may be a waiver of a mechanic’s lien,because itextends the tim3 beyond the period at which a lien could be fixed, it must be so drawn that it is not due until more than four months after the work has been performed, or the last item furnished.</p> <p>(16.) to When the affidavit states that the materials were furnished in and about the “alteration” of a house, and the evidence shows they furnished in the “erection”, the variance is not sufficient to affect the lien.</p>

<p>Action for a receiver, money and general relief. Heard on demurrer to amended petition.</p>

This is a proceeding in error brought by •plaintiffs in error to reversean order of the court made at special term confirming a sale of certain real estate made by the sheriff, and awarding a judgment for costs against said Catherine M.Brigel. A bill of exceptions is filed with the record containing numerous affidavits.

<p>(1). A judgment in order to become a lien upon the lands of a judgment debtor must not only be a valid judgment, but it must be one that is capable of being collected by execution against such property.</p> <p>(2). A judgment rendered, during the existence of a guardianship, against an imbecile, idiot or lunatic, and his legal guardian it, not a lien upon the lands of such imbeciie, etc.</p>

<p>(1) . An action in one county uf this state, to enjoin the collection of a judgment rendered in another, upon the ground that the court rendering the judgment has no jurisdiction of the person of the defendant therein, may be maintained.</p> <p>(2) . Such action is not within the rule which forbids the collateral impeachment of judgments, but is m the nature of a direct attack upon the judgment.</p>

<p>(1). The city may exeicise its right of eminent domain against private property as often and whenever necessity arises.</p> <p>(2). This right must however be exercised m good faith, and when bad faith is charged, parties interested are entitled to a determination of this issue by a jury.</p>

<p>Change of Venue — Essentials necessary to, under sec. 5033, Revised Statutes.</p> <p>(1.) The mere belief of the applicant is not the substantive fact to be established under sec. 5033; the essential fact is that applicant cannot hav a fair and impartial trial in the county from which the change is sought.</p> <p>(2.) This essential fact must be proven by the affidavits of the five supporting affiants; said affidavits must consist of statements of evidential facts, posit vely and unequivocally made.</p> <p>(3.) Supporting affidavits which set forth only that affiants “believe that the applicant cannot have a fair and impartial trial”, without any other evidential facts and circumstances, are not sufficient either in law or in fact to warrant a change of venue.</p> <p>(4.) As to the discretion of the court in determining the effect of the supporting affidavits, and as to impeaching the credibility of the supporting affiants, quaere?</p>

<p>(1.) Whenever it becomes necessary to The due performance of his duties by a receiver of real estate, that he should have •the actual possession of such real estate, a writ of assistance will issue in equity to .put him into such possession.</p> <p>(2.) Such writ will issue, not upon the .•application of the receiver, but only upon the application of a party to the cause.</p>

Heard on motion by plaintiff to require answer of defendants to be made more definite and certain by setting out whether promise set forth in said answer was oral or written.

<p>(1.) A court of equity is not bound -to grant an unconditional order of injunction when it can afford relief in some other manner.</p> <p>(2.) Where the ultimate relief to plaintiff is compensation in the natuie of damages, and equity can afford adequate relief by requiring defendant to give bond to pay such damages, an injunction will be denied.</p> <p>(3.) Cases within the protection of article 1, section 19, of the constitution, which do not require-as a condition precedent the payment or securement of compensation for property sought to be taken by the public, are sunject to the rules laid down in syllabi 1 and 2,</p>

<p>(1). When the amount of a judgment is paid into the hands of the clerk of this court, its future disposition is subject to the control of the court; the reasonable fees of counsel whose efforts realized the judgment will be protected and ordered paid from the fund.</p> <p>(2). Joint plaintiffs, in whose favor a judgment has been rendered, will not be permitted to litigate, as a continuation of the case after judgment, a controversy between themselves as to the ownership of the judgment or the proceeds thereof.</p> <p>(3). Nor will assignees of such plaintiffs, whether of them jointly or severally, be permitted to make such litigation ; and, hence, leave to such assignees to be made partie to the case for the purpose of such litigation, will be denied.</p>

<p>Heard on the intervening petition of the Steele-Wedels Company.</p>

<p>Where the improvement of a street is not properly authorized by the city because of a failure to obtain the requisite number of signatures, no additional liability attaches to abutting property owners who did sign the petition for the improvement in which there was incorporated a contract to indemnify the city from losses on account of non-signers.</p>

<p>The contract set forth in the decision between the Board of Sinking Fund Corn-missioners of Cincinnati with Roberts & Co. of New York, for refunding the-Southern R. R. bonds of that city, is void.</p> <p>While courts will not control the judgment or discretion of any public officer in respect to any matter submitted to him by law; yet the.exercise of this discretion is still limited by legal construction to what is known as a sound and legal discretion, excluding all arbitrary capricious proceedings. And equity will always interfere to prevent municipalities or their agents from assuming-powers relating to property and funds-entrusted to them to be exercised in conformity with law for the benefit of the-municipality or its inhabitants.</p> <p>Powers conferred upon municipalities and their agents with respect to the corporate funds and corporate property are public trusts cognizable in a court of equity.</p>

<p>(1.) An ordinance establishing a police force for the city of Columbus and fixing the compensation thereof, is an ordinance both “involving an expenditure of money” and “creating a right.”</p> <p>(2.) Every such ordinance should, before it takes effect, be presented, duly certified by the clerk, to the mayor of the city for approval.</p>

<p>Where an assignee conducts the assigned business as a going concern, making improvements in the plant, paying indebtedness, competing with other similar concerns, and making ready to turn it over to its owners as soon as the debts have been paid off, the assigned property is subject to taxation in'his hands.</p>

<p>(1). A motion for a new trial retains the cause in the trial court until it is disposed of, but suspends the judgment only so far as the appellate court is concerned.</p> <p>(2). Where a judgment is pending in the trial court for review there on a motion for a new trial, the trend of American authority seems to be against any perse suspension of the judgment or of its enforcement by reason of the motion. The party in whose favor the judgment is entered, is entitled to his execution immediately, and he cannot be deprived of or delayed in his right by any mere act of the opposing party. If a temporary stay is obtained, it is through the inherent power of the court that justice may be done.</p> <p>(3). The scheduling and appraising of personal property covered by a writ of attachment is . for the protection and benefit of the defendant, and where a schedule and appraisement is omitted by order and consent of the defendant, and no rights of other creditors are involved, he will not be heard to .object to such omission.</p>

<p>(1). Where there is the provision in a will, “I give and bequeath to my daughter, Annie, to be held in trust, my two-story frame house, * * * to collect all rents for a term of five ’ years; pay all taxes and assessments; the remainder to be used as she sees fit; * * * after the expiration of five years this property to be sold and divided equally between six children, and the will as a whole showing that the testatrix had implicit confidence in her daughter, Annie, the reasonable intendment of the will is that this daughter should sell the property, ahd the law will imply that such power was conferred.</p> <p>(2). A mortgage given by one of the six children upon all her right, title and interest in the above property is valid against the mortgagor’s interest in the proceeds of the land thus devised to be sold.</p>

<p>Decision on motion to dissolve injunction.</p>

<p>Eminent Domain—</p> <p>(1) . The lands of an individual can be taken against his will, only when it is necessary to subserve a public purpose or a public use. Wet lands not only retard cultivation, but-are the certain sources of malaria, the prolific parent of disease, lo affect the drainage of such lands, shut off the cause of malaria, make them fit for habitation and use,is a purpose sufficiently public to justify the exercise of this right.</p> <p>Public Health etc.—</p> <p>(2) . “Public, ”as used in connection with the word health, convenience or welfare, means the effect upon the- people of the neighborhocd— of the vicinity — -of the proposed ditch, in contrast to the private rights or benefits of the individual. . It is that which relates to the many in contradistinction to the one or comparatively few.</p> <p>(3) . If you are satisfied considering' all these matters in the light of a fair preponderance of tie evidence and your view of the premises and the law as above given you by the court, that the construction of the ditch as proposed will lead to a more healthful community, and a more prosperous neighborhood, and will result in the reclamation or bettering of a considerable quantity of low, wet or swamp lands, or drain stagnant ponds, thereby improving the public highways of the vicinity and health of the neighborhood and increasing the productive power and enhancing the value of the lands of the surrounding country of'the proposed ditch, you would be justified in finding that the proposed ditch will be conductive to the public health, convenience or welfare, and should answer the first question in the affirmative.</p> <p>Practicable route—</p> <p>(4) . If however tho proposed ditch has sufficient fall, a proper course and direction, a sufficient outlet, to drain the lands proposed, and can be constructed without serious difficulty aDd without unusual and extraordinary expense,and when coi structed will perform the offices of a ditch, your answer to the second question should be in the affirmative.</p> <p>(5) . It means that the proposed ro-’te is not an unreasonable one when considered in reference to the object sought to be accomplished and in connection with all the surrounding circumstances.</p>

<p>(1) . The construction of drains is an exercise of the police-power of the state, and the necessity for the same may bo determined in such manner as the legislature may direct.</p> <p>(2) . Upon the first two propositions submitted to a jury, it is sufficient if eight of the jurors agree to return a valid verdict in favor or against such propositions.</p> <p>(3). The overruling or sustaining of a motion for a new trial, for reason of misconduct of the jury, is one which, while it does not rest entirely in the discretion of the trial court, yet. does to a very large extent. In considering the same the court should. look at the standing and what is known of the parties who make the affidavits.</p> <p>It should also take .into consideration what its eyes bring to its mind,and what it hears during the continuance of the .case.</p> <p>(4). The correct rule seems to he that’ the party filing the motion must show that he had no knowledge of the alleged misconduct during the continuance of the trial; for the reason that this is a matter peculiarly known to himself,and not generally within the knowledge of the opposite party.</p> <p>(5). Where the jury in a ditch appeal find against the proposed impoivement, the court is of the opinion,although not entirely free from doubt, that the costs of such proceeding must be taxed against the county commissioners. '</p>

<p>1. In a suit to marshal liens and determine priorities, a decree for the sale of the property once entered protects and binds all parties to the case. Such decree not having been vacated or set aside, it is irregular to enter a second decree for sale on the petition and claim of another lienholder.</p> <p>2. An appraisement and sale under said second order of sale will accordingly be set aside for irregularity in the proceedings on which they are based.</p>

<p>Condemnation—</p> <p>(1) . Compensation — a. What time value' to be fixed — b. What is mai-Ket value — c. Stuation of parties not to effect — d. How proveu — e. When narrow strip' — f. When has no general market value—</p> <p>(2) . Injury to remaining land — a. What-are remaining lands — b. How proven- c. Matters to be considered — d. Statutory regulations — e. Law of adjoining landownera applies — ee. Must presume R. R. will be properly built, etc. — f. Definition of “Compensation” and “Damages” — g. Actual injury the basis — h. Local benefits — i. Affording access to tramps — j. Special benefit — new use — k Rights in highway — 1. Interference witJi ditches, etc. — m. Opinion of witness as to amount of — n. Conflict of testimony, etc. — o. View of premises — p. Sympathy, etc. — r. Rights of parties—</p>

<p>Tax Driplicate received, as prima facia evidence—</p> <p>(1) . The tax duplicate shall be received as prima facie evidence upon the trial of the amount and validity of the taxes appearing due and unpaid thereon — that is, in the absence of evidence to rebut this presumption of tiie validity of the taxes as charged and assessed upon the tax duplicate against the defendant.</p> <p> Burden of, proof is upon defendant— </p> <p>(2) . In an action to recover taxes alleged to be due and unpaid for a period of six years, the defendant alleged that he had returned all his taxable property to the assessor, and that the taxes have been fully paid. This allegation was denied by plaintiff in his reply: Held, that defendant has the burden of proof upon' the allegation set forth by him, and, therefore, he must establish his claim that he did return all his taxable property to the assessor: otherwise, plaintiff will be entitled to recover a verdict for some amount which would depend entirely upon the amount of taxable property defendant has failed to return to said assessor during any of said years.</p> <p>When an agent is bound to list credits for taxation — .</p>

<p>A person committed to jail by an examining magistrate, if not indicted by the next regular grand jury thereafter, unless the same was omitted for some cause mentioned in sec. 7211, will be discharged on a writ of habeas corpus.</p>

<p>(1). Section 4469 providing in ditch appeals, that upon the questions, “Whether said ditch will be conducive to the public health, convenience or welfare”, and ‘‘whether the route thereof is practicable”, it shall be necessary for only eight jurors to agree to return a verdict, is not in conflict with sec’s. 5 or 19 of art. 1 of the constitution.</p> <p>(2). It is not upon the question of the appropriation of the land for public use, but upon the compensation of land so appropriated that tho owner is entitled of right to a hearing in court and the verdict of a jury.</p> <p>(3). The jury is not required to find that the ditch is necessary, but only to respond to the four statutory questions provided for in section 4463 & 4469.</p> <p>(4j. The jury are not required in their view to see every foot of the route proposed, but may diverge and examine the adjoining lands, provided they keep in 1 view the line of the proposed improvement.</p>

<p>(1). A geographical name is not ordinarily the subject of a trade mark; but its use as a designation of manufactured goods, will, under some circumtances, when such use tends to defraud others, be enjoined.</p> <p>(2) . The use of a geographical name as a designation of manufactured goods, will be enjoined as against a person not residing in the locality named, or manufacturing his goods there, if his purpose in the use of the name is to mislead and defraud.</p> <p>(3) . An action for such injunction will lie in favor of a person residing - in such locality and manufacturing like goods there under the same name, where he has used the name as the designation of his goods for so long a time that its use has grown to be understood in the market as designating the goods manufactured by him, and where such use is a source of profit.</p>

<p>(1.) While a guaranty of the performance of a contract void for illegality or immorality, or because contrary to public policy, will not be enforced against the guarantors, guaranty of the performance of a merely voidable contract, valid at the election of its makers, is enforcible against the guarantors.</p> <p>(2.) Where a contract, not illegal, immoral, or contrary to public policy, is entered into by a corporation through its officers and directors, a written guaranty that such corporation will perform its promises under the contract, is valid and enforcible, although the contract of the corporation may be voidable at the election of its stockholders as ultra vires.</p> <p>(3.) A subscriber to the stock of a corporation under a stipulation that at his option and after a certain period, the money paid on such subscription will be repaid, may recover the amount of such payment, from officers and stockholders of the corporation who personally guaranty the performance of said stipulation on the part of the corporat-on.</p> <p>(4.) In an action against the guarantors, the original promisor is not a necessary party.</p>

<p>(1). Where an assignee brings an action in the probate court, to sell the real estate of an assignor, on cross-petition of a defendant, such court has jurisdiction to reform a mortgage.</p> <p>(2). If a mortgage could have been reformed as against the assignor at the time of the assignment it will be reformed as against the assignee.</p>

<p>(1) . A person entitled to the administration of an estate, will not be appointed where it appeals that he has claim connected with the estate as distributee or otherwise antagonistic to heirs or legatees therein, or where there exists an animosity between him and the heirs that might lead to an improvident administration.</p> <p>(2) . In such case the court in the exercise of a sound discretion should appoint some one that will administer the estate in conformity to law and the best interest of all concerned.</p> <p>(8) An administrator ought in all instances, be a person in whom all parties in interest have complete confidence, and whom they can, at all times, approach without embarrassment,to confer and con • suit in reference to the management of the trust.</p> <p>(4). B. devised all his real estate to a trustee for the benefit of her two minor children ; five months before her death, she gave to her mother 81000.00 in money to be used for her children ; her personal estate was small, but sufficient to pay all her debts. Her husband denied the validity of the $1000.00 gift to her mother, and in order to secure his distributive share of the same, insisted lhat the same be turned over to an administrator. This and other matters caused much ill feeling between the husband and the family, relatives of his wife, and the trustee of his children.</p> <p>Held, the husband is not a suitable person to receive the appointment of administrator of’his wife’s estate.</p>

<p>Application for order to require an inventory.</p>

<p>(1) -. The unsupported parol evidence of one person is not sufficient to prove a deed alleged to have been lost.</p> <p>(2) . Evidence sufficient to establish an alleged deed must be clear and convincing - it must produce in the mind of the court a conviction that a valid deed once existed.</p> <p>(3) . Conviction, means a state of mind free from doubt.</p>

<p>The notice of appointment required from an executor or administrator under section 6088,cannot legally be made in a newspaper of general circulation, printed in the German language, or in any language other than the English language.</p>

<p>In order to maintain the action provided for in section 6448, R. S., the plan tiff must be the owner of the legal title.</p> <p>When a person owning lands conveys the legal title to another, under an agreement with such person to reeonvey to him, and on failure or refusal of such person to reconvey, the original owner agrees to accept a certain amount for his interest, such original owner has no right, either, legal or equitable, to such land; and cannot maintain the action provided for in section 6448, R. S.</p>

<p>(1) . The order or finding made by probate court upon the final account of an executor cannot be attacked or set aside in a collateral action.</p> <p>(2) . When an order is made finding an estate to be settled, the real estate passes to the heirs or legatees, and such title thereto cannot be attacked by a creditor of the deceased while such order remains undisturbed.</p> <p>(3) . When the administrator, of such heir or legatee brings an action to sell such real estate to pay his debts, a creditor of the testator or intestate is neither a necessary or proper party defendant.</p> <p>(4) . An executor has no authority to borrow money to pay debts of the testator, and if he does so, the person loaning him the money must look to his individual responsibility to secure the same.</p> <p>(5) . If an executor borrows money to pay debt? of the testator, and then files what purports to be a final account, in which it is shown that in order to make it a final balanced account, said executor donates a large amount to said estate. Can such creditor of the executor have a standing in this court and be recognized to file a motion to open up such account? or to have the order thereon set aside? Query?</p> <p>(6) . When a party is not a necessary party to an action, and making him a party will cause the consideration of questions foreign to the original action, and possibly, bringing in new parties with new and different interests, such an one should not be made a party.</p> <p>(7). Especially is this true where such, application is not made until after judgment had been rendered, and the court has doubts as to its jurisdiction on merits of applicant’s cause.</p>

<p>Action to recover damages for creating a nuisance, and to restrain its further continuance — Right of private person to sue for injunction—</p>

<p>(1). H. devised his farm to his wife for the period of 12 years, at the end of twelve years he directed, “All my real estate shall be sold by my executor, hereafter named at public sale, and the proceeds divided in three equal shares as follows: To my son George Hain, one share: To my daughter Caroline, one share, to the children of my daughter Elizabeth Ann Snyder, one share. Held that the fee to the real estate vested in the legatees at the death of the testator subject to be divested, upon the exercise of the power of sale resting in the executor.</p> <p>(21. The interest of such legatee is subject to a judgment lien, the same as other real estate.</p> <p>(3). If the lien exists at the time the executor sells said real estate, the lien is transferred from the land to the fund arising from such sale.</p>

<p>(1). Where it is a part of the mortgage-contract that the mortgagor is to remain in possession and sell, and there is no-agreement to account for the proceeds, the mortgage is per se fraudulent and void as to other creditors.</p> <p>(2). But where the mortgagor remains in possession merely by sufferance and-sells, the mortgage is not per se fraudulent.</p> <p>(3). Possession and exercise of power-of sale, without an agreement to account, with tlie knowledge of the mortgagor, raises a presumption that the mortgage is fraudulent.</p> <p>(4). But this presumption may be overcome by showing the good faith of the parties and that no actual iqjury resulted to other creditors thoreby.</p>

<p>(1). Section 6841, of the Revised Statutes, applies only to persons who are charged by law with the performance of the duties therein mentioned. (State v. Myers, 56 Ohio St., 340).</p> <p>(2). The secretary of the water works department of the city of Cincinnati is not within the provisions of section 6841, of the Revised Statutes of Ohio, and is not subject to indictment thereunder.</p>

<p>1. The widow and minor children not being required to make a demand to secure a year’s allowance, mere lapse of time will not bo considered as a waiver or relinquishment of such right.</p> <p>," 2. Where no appraisement of an estate has been made, and thereby no year’s allowance set off to the widow and her minor children on her application, such appraisement will be ordered any time while said estate remains unsettled.</p> <p>3. If any portion of said estate has been used by the widow for her support, the same shall be taken into consideration by the appraisers in making such allowance.</p>

<p>1. It is no part of the duty of executors, acting for the benefit of creditors of the estate, to account to the court for trust funds that, when collected, should be distributed to heirs and devisees, and not paid as assets of the estate to creditors, presenting claims.</p> <p>2. The language of the will of Thomas J. Gallagher held not to indicate a trust for the benefit of the creditors of the estate.</p>

<p>1. An accused person under an invalid ordinance waives no right by entering a plea of guilty, but may prosecute error to the judgment of the court imposing sentence.</p> <p>2. Ordinance No. 214 to license and regulate the business of railroad and steamship ticket brokers or scalpers, in the city of Cincinnati, is illegal and void.</p>

<p>An assignee having commenced an action in the probate court to sell the real estate assigned, the court has power upon the cross-petition of a defendant mortgagee, to grant such defendant affirmative relief and order the assignee to sell the property in the mortgage described and apply the proceeds therein.</p> <p>Foreclosure is nothing more or less than the extinction of the mortgagor’s equity of redemption by the sale of the premium, and the application of the proceeds to the payment of the mortgagee’s cairns. This section 6350 and 6351, both provide, may be done in the probata court in assignment matters.</p>