Volume 5 — Ohio Nisi Prius Reports, New Series

<p>PERFORMANCE OF CONDITIONS PRECEDENT.</p> <p>Pléading — Conditions Precedent — Necessary Allegations with Reference to — Simplifying Pleadings for Purpose of Attach on Demurrer-Omissions Shown by Reference to Exhibit — -Sales by Sample and by Specific Contract — Irrelevant Interrogatories, Sow Reached— Sections 5091 and 5085.</p> <p>1. While performance of all conditions precedent may be generally alleged in a pleading, the conditions themselves should be fully and accurately stated.</p> <p>2. A party may, if he can, use interlocutory motions to simplify a pleading for une purpose of attacking it on demurrer.</p> <p>3. The plaintiff need set foi'th primarily only such conditions as'he thinks pertinent. If, however, the defendant can by referring to an exhibit show omissions, he is entitled to have these omissions embodied in the petition.</p> <p>4. An allegation of a sale by sample is inconsistent with a former allegation showing a sale by specific contract, and will be stricken out.</p> <p>5. Interrogatories attached to a pleading which are irrevelant or not pertinent to the issue should be reached by demurrer.</p>

<p>NEGLIGENT KILLING OF CATTLE BY RAILROAD TRAIN.</p> <p>Negligence — Cattle Killed by Railroad Train — Failure to Fence Road — • Negligent Running of Train — Action Based on Absence of Fence Barred in Six Years — Based on Negligence Barred in Four Years — ■ Determination as to lohich Cause of Action is Covered by the Petition — Pleading■—Amendment.</p> <p>An action was begun on August 13, 1905, to recover damages for cattle killed upon defendant’s railroad track on September 8, 1899. The petition alleged carelessness and negligence on the part of the railroad company in not complying with Section 3324, Revised Statutes, as to fences and cattle-guards, and also alleged that the defendant was guilty of carelessness and negligence in the running of the train which killed said cattle; but did not clearly allege that the cattle were killed by reason of the negligence of the defendant in not properly fencing its right of way. As one • defense the. railroad company plead the four year statute of limitations, and plaintiff filed a demurrer to said defense.</p> <p>Held: That an action for common law liability for negligently killing said cattle is barred' in four years, and an action for liability created by said statute is barred in six years, and that where the petition in such a case states facts sufficient to constitute a cause of action under the common law for negligent management of the train and consequent killing of said cattle, but does not clearly state facts sufficient to constitute a cause of action for liability created by said statute, that the demurrer should be overruled.</p>

<p>PROCEEDINGS IN AID OF EXECUTION.</p> <p>Pleading — Action to Enforce Order — Made in Proceedings in Aid of ExeciUion — Nature of the Order — Right of Appeal — Sections 6680-1-5 — Similarity of Proceedings in Garnishment — Findings Toy Justice of the Peace — Final Order.</p> <p>1. An order issued to the debtor of a judgment debtor in a proceeding in aid of execution is in all respects of the same character as an order to a garnishee, and operates only as an attachment, and is in no sense a judgment.</p> <p>2. It follows that in an action to enforce payment under such an order, a mere recital of the order made with a prayer for judgment is insufficient, but it is necessary to further aver that, at the time the order was made, the defendant was actually indebted to the judgment debtor.</p> <p>3. The provision for an appeal in Section 6680-5 applies to the proceedings that are provided for in that section, and not to proceedings under Section 6680-4, relating to the order for payment. Carlin v. Hower, 5 C. C. — N. S., 70, not followed</p>

<p>INTERPRETATION OF A DEED.</p> <p>Deed — Failure to Include the Word “Heirs — Nature of the Estate Conveyed — Arbitrary Common Law Buie — Tendency of Modern Decisions.</p> <p>A deed, in consideration of $3,100, “to Nancy Daniels, to her and her children and assigns forever,” with warranty “to said Nancy Daniels, to her and her children, heirs and assigns,” construed to be a deed in fee simple to Nancy Daniels and her children living at the time of the conveyance.</p>

<p>TRANSFER. OF LIFE INSURANCE TO WIFE AND CHILDREN.</p> <p>Life Insurance — Insured Without Dominion Over — As Against the Interests of Creditors, When — Section 3628. ’</p> <p>A transfer by an insolvent to his wife and children of policies of life insurance, made payable to his estate, is in fraud of creditors and may be set aside, and the policies ordered paid to his administrator or to a trustee for the benefit of his creditors.</p>

<p>RECOVERY OF MONEYS ILLEGALLY PAID FOR COUNTY BRIDCES.</p> <p>Bridges' — Money in Payment for, Irregularly Drawn from County Treasury — Irregular and Illegal Payments Distinguished — Defenses— Allowance of Claim by County Commissioners — Failure to Require Auditor’s Certificate — Acceptance and Retention of Bridges.</p> <p>1. The allowance of a claim in due course and in good faith by a board of county commissioners, and the entering of the allowance upon the claim and of record, does not state a defense to an action under Section 1277-8 for recovery of money paid, on the ground of failure to comply with the requirement of Section 28346 with reference to auditor’s certificate, ar.d for other irregularities and omissions in the making of the contract.</p> <p>2. That money was irregularly paid for a county bridge does not afford ground for an action by a tax-payer for its restitution to the county treasury, where it appears that the bridge was erected and accepted in good faith, and has been retained by the county, and constitutes a necessary part of a public highway, and was reasonably worth the price paid for it, and has never been tendered back to the defendants.</p>

<p>NEGLIGENCE IN THE OPERATION OF STREET CARS NOT CRIMINAL IN THE ABSENCE OF MALICE.</p> <p>Negligence not Criminal, When — No Common Law Crimes in Ohio— Electric Car Negligently Operated — Causes Death of Passengers— Indictment Will not Lie in the Absence of Malice — Statutes Relating to Homicide — Definition of “an Unlawful Act."</p> <p>1. Neither a street railroad company nor any of its officers or employes', whose gross negligence in the operation of its cars or other appliances, but without actual malice, has caused the de'ath of any-person, is liable for indictment for manslaughter unless said company or its said officer or employe was, at the time of the killing, engaged in a violation of some law.</p> <p>2. There are no common law criminal offenses in Ohio. Any act, to be criminal, must be declared so by some statute or ordinance.</p>

<p>COLLECTION AGENCY CONDUCTED BY JUSTICE OF THE PEACE.</p> <p>Criminal Law — Indictment will not Lie against a Justice of the Peace —For Conducting a Collection Agency — Extortion by an Officer Under Section 6909' — Applicability of Section 621e — Justices’ Code.</p> <p>1. An indictment charging that the defendant engaged in the business of a collecting agency, which he was prohibited from doing by reason of his office of justice of the peace, does not charge an offense under Section 6909, Revised Statutes, inasmuch as there are no common law offenses in Ohio, and there is no statute prohibiting a justice of the peace from engaging in said business; nor does his oath of office amount to such a prohibition.</p> <p>2. Section 621e is a special statute, and does not apply to justices of the peace in Cincinnati township.</p>

<p>ASSESSMENT FOR. A STR.EET IMPROVEMENT WHER.E THER.E IS AN ENTIR.E ABSENCE OF BENEFITS.</p> <p>Street — Assessment for Improvement of — Drainage—Failure to Provide —Results in an Entire Loss of Benefits — Discretion of Municipal Authorities — Mistake of Engineer — Acceptance of Work of Contractor — Abuse of Corporate Power — negligence—Burden of Proof— Injunction.</p> <p>1. Inasmuch as payment of an assessment for a street improvement can he compelled only on the theory that benefit has resulted to the abutting property, neither the discretion lodged in the municipal authorities as to the plans and specifications to be adopted, nor an honest difference of opinion among engineers as to the drainage required to render a proposed improvement beneficial, is a sufficient basis upon which to rest a valid assessment, where the event has shown that because of a' failure to provide proper drainage the improvement is without any benefit whatever to the abutting property.</p> <p>2. The collection of an assessment for a street improvement, which has conferred no benefit whatever on the abutting property because of a mistake in the provision for drainage, will be enjoined without seeking to inquire whether due to an abuse of corporate power or to gross negligence on the part of the corporation.</p>

<p>PROOF OF GIFT BY WIFE TO HUSBAND.</p> <p>Husband and Wife — Married Woman’s Acts of 1861 and 1871 — Purpose and Effect of — Separate Estate of the Wife — Reduction of, to Possession under the Statute — Assent by Wife to Absolute Oumership Necessary — Burden of Proof — Presumption of Payment by the Husband- — Wife not Estopped from Asserting Title by Conduct, or Laches, or Lapse of Time — Effect of a Bequest to the Wife of a Greater Sum — Election to Take not Prejudicial to Wife’s Rights as a Creditor of the Estate — Evidence Necessary to Establish a Gift by Wife to Husband.</p> <p>1. The meaning and effect of the Key law of 1861 (58 O. L., 54) and its modification in 1871 (68 O. L., 48) was to provide a shield for a femme covert and give her a separate estate.</p> <p>2. “Reduction to possession” by a husband of his wife’s separate estate does not mean, under the statute, the acquiring of mere physical possession, but it must clearly appear that the title passed by her assent to absolute ownership of the estate or some part of it by him; and where such assent can not be shown, physical possession can not be asserted to her prejudice.</p> <p>3. The burden is therefore upon the husband, or those claiming under him, to show that his possession of the capital of his wife’s separate estate (as distinguished from the income) was not in the capacity of agent or trustee, but that he acquired title by assent on the part of his wife to absolute ownership in him.</p> <p>4. Inasmuch as the statute of limitations does not begin to run during ‘ coverture, i't is impossible to assume that there is a presumption of payment because of lapse of time; or that the wife’s silence or conduct during all- the years of hér husband’s possession constituted laches; or that she intended to make a gift to him of the property which passed into his possession; or that she is estopped because of failure to assert her rights during coverture — since to recognize any of these defenses would be to over-ride the statute of limitations and permit by indirection wbat may not be done directly.</p> <p>5. Where a husband holds the separate property of his wife in his own name, and at his death, after directing payment of his debts, bequeaths to her • in lieu of dower in “his” estate a sum greater than the value of her property which came into his hands, and she elects to take under the .will, her election does not prejudice her rights as a creditor of his estate.</p> <p>6. The fragmentary declarations by the wife, now deceased, introduced in evidence in this case, are not sufficient to establish a gift from the wife to the husband, even if a gift inter vivos can be established by a preponderance of the testimony; and much less do these declarations establish a gift clearly and convincingly.</p>

<p>CONSTRUCTION OF THE NEGOTIABLE INSTRUMENTS ACT.</p> <p>Promissory Note — Relation to, of One who Writes Bis Name on the Back — Resulting Liability and Rights — Makers, Sureties, Guarantors, Endorsers — Great Variance by the Supreme Courts of Other States — Boldings in the Negotiable Instruments Code States Eollowed.</p> <p>One who placed his name on the hack of a promissory note before delivery is an endorser, and his rights are those of an endorser; and, if not within the exceptions of R. S. 3175†, he can not be charged with liability without notice of dishonor and demand.</p>

<p>INDICTMENT UNDER. THE VALENTINE ANTI-TRUST LAW.</p> <p>Criminal Law — Prosecution Against Ice Companies — Por Violation of the Valentine Anti-Trust Law — Indictment—Not Bad for Duplicity, When — Situs of the Combination — Residence—Venue—Mere Membership in Illegal Combination Sufficient — Knoioledge Mkist be Averred and Proven, When — Jurisdiction—Trusts'—Manner of Controlling Prices — Conspiracy—Motion to Quash — Demurrer.</p> <p>1. An indictment which charges in one count the commission of several offenses of the same general character, committed at the same time and forming part of the same transaction, is not had for duplicity.</p> <p>2. An indictment which charges in a single count conjunctively several different ways of committing an offense described in 'the statute disjunctively, is not bad for duplicity.</p> <p>3. In an indictment under the Valentine Anti-trust act against individuals, firms, partnerships, corporations or associations, or any two or more of them, it is not necessary to aver that the trust or illegal combination exists or does business in the county in which the indictment is formed.</p> <p>4. No overt act need be charged in the indictment against the persons, firms, partnerships, corporations or associations mentioned in the first section of the Valentine act. The mere membership in the illegal combination or trust is sufficient to constitute an offense under said act, and in such case the venue of the indictment is the county where such members of said combination reside or exist, without reference to where the trust itself as an entity exists or does business.</p> <p>5. Section 4427-4 distinguishes between two classes of persons who may become liable under the act; viz., first, “any person who* may become engaged in any such conspiracy or take part therein,, or aid or advise in its commission”; and, second, “any person who shall as principal, manager, director, agent, servant or employer, or in any other capacity, Icnowingly carry out any of the stipulations, purposes, prices, rates, or furnish any information to assist in carrying out such purposes or orders thereunder or in pursuance thereof.” In an indictment charging any person in the first of said classes with, a violation of the act, knowledge need not be averred nor proven, but knowledge must be averred and proven in an indictment against any member of the second class.</p>

<p>EXTENSION OF STREET RAILWAY FRANCHISE BEFORE THE OLD GRANT» HAS EXPIRED.</p> <p>franchises — Extension of Street Railway Q-rant — Consent from Abutting Owners — Notice—Offers as to Rates of Fare — Extension Over Route of Another Company — Injury to Property Owner from Rouble Tracking of Road — Remedy—Injunction—Municipal Corporations.</p> <p>1. It is competent for a municipal council and a street railway company to terminate, in part or in its entirety, the rights of the company under a previous grant, and to renew the grant for a period of twenty-five years, provided the company is not released from any obligation or liability under the old grant, and the renewal will, in the opinion of the council, prove beneficial to the public.</p> <p>2. The statutory requirements as to the securing of consents from abutting property owners for the establishment of a street railway route, and the giving of notice of. application for a franchise and its award to the individual or corporation agreeing to carry passengers for the lowest rates of fare, do not apply to the renewal of an existing franchise.</p> <p>3. The route of a street railway may, by agreement with a company owning other routes, be extended by ordinance over all or a part of such other routes.</p> <p>4. A city solicitor can not predicate an action for an injunction against the extension of a street railway franchise on an anticipated injury to abutting property owners from the prospective double-tracking of the road; such an injury is of a private character and the remedy is in the owners.</p>

<p>WARRANTY AS TO SEED.</p> <p>Sales — By a Seedsman from Ms Store — Purchaser does not gel the Variety Stipulated — Warranty—Contracts—Damages.</p> <p>1. Where one goes to a seed store to purchase a certain variety of a species of seeds, and they are given him without comment with the name printed on the package in which they are contained, the sale is without warranty either that the seeds will grow or that they are of the variety stipulated.</p> <p>2. But if there was a warranty it would not be found in the name of the seeds printed in bold letters on the package, but in all the printed matter found on the package, which in this case included the express statement that the seed was not guaranteed, and if not found as represented would be replaced with other seed of like value.</p>

<p>VERITY OF LEGISLATIVE RECORDS.</p> <p>Constitutional Law — Failure of Governor to Sign Aiken Law on Account of Illness — Yerity of Legislative Record — Burden of Proof as to Irregularity — 98 O. L., 99.</p> <p>The legality of public statutes can not be disproved as an' issue of fact by the preponderance of evidence. The legislative record in such cases imports absolute verity; and public policy forbids that the burden of proof on the issue of illegality can be sustained by parol evidence.</p>

<p>CONSTRUCTION OF LAW RELATING TO ADOPTION OF SCHOOL BOOKS.</p> <p>Schools — Adoption of Text Boohs for — Sow Boohs may he Lawfully Changed — Regular and Irregular Meetings of Board of Education— Injunction — Mandamus—Remedy Against Illegal Action hy School Board — Section 4020-3.</p> <p>1. Text-books adopted at a regular meeting of a board of'education can not be lawfully changed within five years from the date of such adoption, except by a three-fourths vote of all the members of the board at a regular meeting of the board.</p> <p>2. Under a resolution of a board of education providing that meetings of the board shall be held on the first Monday in each month while the schools are in session, and on alternative months after the schools are closed for the year, a meeting held on the first Monday of a month in which any of the schools of the township are in session is a regular meeting.</p> <p>3. Injunction will lie to prevent the making of a change of school books under an order illegally adopted by the board of education.</p>

<p>OPENING ON SUNDAY OF ROOMS OR. PLACES CONNECTED WITH SALOONS.</p> <p>• Liquor Laws — Sunday Closing — What Constitutes a “Place” Within the Meaning of the Statute — Opening of Rooms Connected With Bar- . Room — Jnto Which the Bar-Keepers and Patrons Freely Pass.</p> <p>1. The requirement of Section 4364-20, that all places where intoxicating liquors are on other days sold or exposed for sale, excepting regular drug stores, shall be closed on Sunday, applies not only to the room in which the liquor is actually sold, but to all other rooms actually used in connection with the trafile in intoxicants on other days of the week.</p> <p>2. A stock room in the rear of and opening into the barroom of a saloon, used as the stock room in this case was used, is a “place” within the meaning of the statute, and the opening of such a room on Sunday (by an alley entrance in this case) is in violation of the statute.</p>

<p>COMPENSATION ON ACCOUNT OF A DITCH IMPROVEMENT.</p> <p>Ditches — Application for Compensation hy Land Owners — Must he Made, When — Hot Barred Before Final Hearing — Section 4460 as Amended in 1894.</p> <p>Application for compensation and damages by land owners in ditch proceedings are required to be made on or before the day set for hearing of application for compensation and damages and for approval of the report of the county surveyor, and are not barred if not made on or before the day set for hearing upon the petition for the improvement.</p>

<p>CONSPIRACY IN COMBINING TO RAISE THE PRICE OF ICE.</p> <p>Criminal Law — Prosecution for Conspiracy Against Trade — In Combining to Increase the Price of Ice — necessary Elements of Indictment — Formation of the Conspiracy a Distinct Offense — Time—• • Methods — Capacity in Which Defendants Acted — Surplusage—Section 4427-4.</p> <p>In returning an indictment charging a conspiracy against trade, it is not necessary that tbe grand jury state the exact date on which the illegal combination was effected, or the manner in which an advance in prices was to be brought about, or the capacity in which different defendants acted, or that any overt acts were committed; and the indictment is not rendered indefinite by charging a conspiracy between the defendants and others without stating who the others were, or fey describing the accused as “the defendants” after they have once been named and afterward referred to as “each and all of the defendants1-herein.”</p>

<p>JURISDICTION IN ATTACHMENT.</p> <p>Attachment — Against an Owner of Real Estate Within the County— But Residing in Another County — Action Certified to Common Pleas — Jurisdiction of Common Pleas no Broader than that of the Justice — Reaches Neither the Person nor the Property — Notwithstanding Entry of Appearance by Motion to Dismiss — Summons Quashed — Actions—Affidavit—Return of Summons.</p> <p>Where an action on a promissory note, asking judgment for more than $100, is begun before a justice of the peace in a county where the defendant has real estate, he not being a resident of that county, but a resident of another county in Ohio, and an attachment is issued on the ground that the defendant is a non-resident of the ■county, and the case is thereafter certified to the common pleas court under Section 6514, the fact that the defendant is a nonresident of the county is not a ground of attachment in such case in the common pleas court. In such a case the defendant must be sued in the county where he resides or may be summoned, and the common pleas court can not acquire jurisdiction over the person or the real property of the defendant within the county by attachment proceedings.</p>

<p>FAILURE TO PROTECT MOTORMEN AGAINST WIND AND WEATHER..</p> <p>Criminal Law — Indictment for Failure to Properly Vestibule Motor ■ Cars — Of the Statute Relating Thereto — No Penalty Prescribed— Effect on Previous Statute of Void Repealing Section — Averment of Duty of the Accused.</p> <p>1. The act of February 9, 1906 (98 O. L., 5), amendatory of Section 3443-3, creates a new offense, viz., failure to provide a heating device for motormen, without prescribing any penalty for such offense. It is therefore inoperative and void.</p> <p>2. Where an inoperative or void act, amendatory of a previous valid statute, contains a section attempting to repeal such previous valid statute, said repealing section is also void and said previous valid statute remains in full force and effect as it was prior to said attempted amendment, unless it clearly appears that it was the intention of the Legislature to repeal said former statute without reference to whether the attempted amendment was valid or not.</p> <p>3. In an indictment under Sections 3443-3 and 3443-4 which charges that it was the duty of the accused to carry out the provisions of said sections, it is not necessary to aver how or by whose authority such duty was imposed.</p>

<p>LEGALITY OF PROVISION FOR. COLLECTION OF PERSONAL TAXES.</p> <p>Constitutional Law — Section 2859, Relating to the Collection of Personal Taxes — Special Provisions as to Pleading — Special Rule as to Pleading — Special Rule as to Evidence — Proceedings for Collection of Taxes Summary.</p> <p>1. After a statute has stood for a great length of time, and has been frequently before the courts in adjudicated cases without its constitutionality being questioned, the rule that no statute should be declared unconstitutional unless clearly so becomes of commanding force.</p> <p>2. A statute is not rendered unconstitutional because it prescribes a different rule of pleading from that applied in other cases; or because it alters the rule of evidence by prescribing what shall constitute prima facie proof, provided the adverse party is given a fair opportunity to contest the claim; and the variation in these respects found in Section 2859, relating to suits by the county treasurer for the collection of personal taxes, does not render the statute unconstitutional.</p>

<p>ANCILLARY PROCEEDINGS ON A SECURED DEBT NOT YET DUE.</p> <p>Pleading — Defect in Petition Not Susceptible of Amendment— Dismissal— Premature Action on a Creditor’s Bill — Presumption—Receiver—Section 5116.</p> <p>1. A demurrer having been sustained, and it appearing upon tender of an amended petition that the initial defect is not susceptible of amendment, leave to file will be refused and the cause dismissed. (Code, Section 5116, Section 5320.)</p> <p>2. A mortgage creditor whose debt is not yet due and whose security is not shown to be inadequate or exhausted, can not maintain a creditor’s bill, especially when the grounds alleged for the proceeding are that the affairs of the defendant are in the hands of a receiver in process of settlement.</p> <p>3. The basic theory of a creditor’s bill is that legal assets are nonexistent or beyond reach, and is negatived by the fact that the assets of the defendant are in the hands of a court in process of general settlement, which includes plaintiff among beneficiaries.</p> <p>For previous decision in same case,, see 4 N. P. — N. S., 31.</p>

<p>SUFFICIENCY OF INDICTMENT FOR BLACKMAIL.</p> <p>Criminal Law — Prosecution for Blackmail — Sufficiency of Indictment— Knowingly Sending Communication — Acctising Recipient of Immoral Conduct — Inferences from Language Used — Operative Facts and Collateral Allegations.</p> <p>A and others were indicted for blackmail in sending and delivering to L a petition in which he was charged with immoral conduct in fondling, caressing and driving about at night alone with Eva, well knowing that she was the wife of E, .the intention of the defendant being, not to file the petition in court as an action for damages for alienation of affections, but to extort money from L. The petition was copied into the indictment. Held:</p> <p>1. The averment that L well knew that Eva was the wife of E is in line with' established precedents and sufficient, although a loose allegation that she was the wife of E.</p> <p>2. The averment that the defendants knowingly accused L of immoral conduct by knowingly delivering to him the petition containing the alleged accusations is somewhat indirect and involved, but sufficient.</p> <p>3. Where the facts are averred, the law attaches the proper conclusion, and the indictment is not invalidated therefore by the failure of the grand jury to find that the things that L was accused of doing amounted if true, to immoral conduct, or that the accusation would tend to degrade and disgrace him.</p> <p>4. But inasmuch as the relationship between L and Eva may have been of a character justifying such familiarity, as, for instance, father and daughter, the indictment, because of its silence as to their relationship, does not charge immoral conduct or such conduct as would tend to degrade and disgrace.</p> <p>5. Moreover, if the allegations of the petition may be taken as a part of the indictment, then L was charged in the petition with practicing the arts of a seducer, and the charge in the indictment is discredited, inasmuch as it not criminal to make a demand in good faith for a wrong sustained.</p>

<p>COSTS WHERE THERE HAS BEEN AN OFFER. OF SETTLEMENT.</p> <p>Costs — Proffer of Settlement — Money Returned to Debtor — No Record of Offer to Confess Judgment — Appeal by the Creditor--Cosls on Appeal — Proceedings Before Justice of the Peace — Error—Sections 6583, 6708 and 6591.</p> <p>A claim having been placed in the hands of a justice of the peace as collector, the debtor proffered in currency a less sum, which the creditor refused to accept, whereupon the justice handed the money back to the debtor, and in a subsequent action on the claim before him gave judgment for the creditor for the exact amount which had been proffered and ordered him to pay the costs. The creditor thereupon appealed to the common pleas, where the same judgment was rendered as to the debt, but appellant was awarded the costs- made before the justice. No record whatever was made of any offer to confess judgment, although all parties in interest were of the impression a tender had been made. Held:</p> <p>1. The proffer of payment to the justice-collector was not a tender followed by a deposit before trial; it was therefore insufficient to toll the costs, and the justice should have taxed the costs against the defendant-debtor.</p> <p>2. The action of the justice in taxing the costs was solely an application of the law to conceded facts, and was therefore reviewable only on error; and the plaintiff appellant not having re-covered by his appeal a larger sum by way of judgment than that Tendered by the justice, Section 6591, R. S., applies to charge him with the costs of appeal, even though, on appeal, he recovers the costs below, which were there taxed against him.</p>

<p>THE RIGHT TO PROJECT SIGNS OVER SIDEWALK.</p> <p>Municipal Corporations — Streets and Sidewalks — Rights of the Public in — Uses by Abutting Owners Which can not be Interfered With — . Aside from the Right of Ingress and Egress — Projection of Signs Over Sidewalk — Can not be Interfered With, When — Board of Public Service can not Impose Regulations — Nuisance—Injunction— Sections 1536-100, 1536-131 and 6920. ’ ‘</p> <p>1. Under the law of Ohio the rights of an abutting property owner in the space occupied by the street and sidewalk is not limited to mere egress and ingress, but includes any private use not inconsistent with, or constituting an actual or threatened interference with, the public use for transit or other incidental purposes; and while such use by an abutting owner is subject to reasonable regulation in the interest of the public, such use can not be interfered with unless it amounts to an actual obstruction or menace to the public.</p> <p>2. The projection of an electric sign ten feet from the front of a building over the sidewalk and at a height of fourteen feet above the sidewalk is not an. unreasonable use of the street by an abutting owner, and can not be enjoined.</p> <p>3. The authority of a board of public service being purely administrative, its powers are exhausted when it enforces existing laws and ordinances, and when a different regulation is provided by such board the regulation is void.</p>

<p>EMINENT DOMAIN FOR THE PURPOSE OF CREATING WATER. POWER.</p> <p>Legislative Authority to Confer the Bight of Eminent Domain — May he Granted to a Water Power Company — Where the Stream is not Navigable — Courts toill not Interfere, Unless — Constitutionality of Section 3878.</p> <p>1. Section 3878, Revised Statutes, as amended April 23, 1904, is a proper exercise of the constitutional power of the General Assembly, and not an abuse thereof.</p> <p>2. The General Assembly possesses the constitutional power to confer - upon a corporation the right to appropriate land for the erection * of dams in non-navigable streams for the purpose of raising a head of water as power for the generation of electricity.</p> <p>3. The judiciary will not interfere with the exercise of legislative authority in conferring the power of eminent domain, unless there appears to be a gross and manifest abuse of such authority.</p>

<p>AS TO CORRUPTLY ATTEMPTING TO INFLUENCE AN OFFICER OF COURT.</p> <p>Criminal Law — Indictment under Section 6907 — For Endeavoring to Corruptly Influence a Judge — Gravamen of the Offense.</p> <p>While it is the heighth of impropriety to write or send a communication to a judge disparaging to the character of one of the parties to a case then pending before him, such an act does not furnish the basis for an indictment under Section 6907 for the crime of endeavoring to corruptly influence the said judge in his decision, where the question of the character of the party so attacked is not in issue and whether good or bad could Have no influence on the court in determining the case.</p>

<p>RECOVERY OF PENALTY FROM BANK FOR. FAILURE TO MAKE SEMI-ANNUAL REPORT.</p> <p>Banks and Banking — Action for Recovery of Penalty — For Failure to Make Semi-Annual Report to Auditor of State — In What Name Action Should he Brought — Recovery of Penalty in Civil Action— Not in Violation of the Constitution — Pleading and Practice — Judicial Discretion in Permitting a Tardy Pleading to he Filed— Words and Phrases.</p> <p>1. Proceedings “brought” by the- auditor of state, under Section 3818, Revised Statutes, to recover penalties from banks for failure to make semi-annual reports, must be prosecuted by civil action in the name of the state, and not in the individual name of the auditor of state.</p> <p>2. The recovery of a penalty by civil instead of criminal proceedings is, therefore, not a violation of Section 20, Article XV, of the Constitution, providing for indictments in all “prosecutions.”</p>

<p>ABATEMENT BY DEATH OF ACTION FOR. INJURY FROM FALL ON DEFECTIVE SIDEWALK.</p> <p>Nuisance — Action for Injury on Dangerous Sidewalk — Abatement of, by Death of Party — Use of Terms “Action,” “Right of Action,” and “Cause of Action” — Section 5144 a Limitation on Section 4975, but Section 4974, not a Limitation- on Section 5144.</p> <p>1. Notwithstanding a nuisance implies negligence, there is a clear distinction under the Ohio law between ordinary actions for injury to persons or property through negligence per se, and injury to persons or property caused by nuisance.</p> <p>2. The amendments to Sections 5144 and 4975 do not relieve Section 5144 as it originally stood from the provision thát an action for nuisance shall abate by the death of either party. An action, therefore, for damages resulting from a fall on a sidewalk improperly constructed and maintained, abates with the death of the plaintiff.</p>

<p>ESTOPPEL AGAINST CONTESTING STREET ASSESSMENT.</p> <p>Streets — Assessment for Improvement of — Acquiescence in Improvement — Estops Abutting Owner from Attaching Assessment, When.</p> <p>Abutting owners who stand, silently by and permit street improvements to be made, and pay several installments of the assessment levied for payment therefor, are estopped to deny the validity and regularity of the assessment proceedings.</p>

<p>COUNTY COMMISSIONERS WITHOUT DISCRETION IN NAMING A PUBLIC DEPOSITORY.</p> <p>Mandamus — To Compel Designation of Public Depository — County Commissioners Without Discretion — Alternative Writ Ordered at Chambers and Out of the County — Defect in Writ Reached, How — ■ Pleading — Appeal Under Section 896 — Judicial and Ministerial Functions — Error Proceedings — Banks—Surety Bond — 98 O. L., 274.</p> <p>1. A demurrer will not lie to an alternative writ of mandamus and the petition therefor, on the ground that the judge was without jurisdiction to order the writ while sitting at chambers and in another county of the same judicial district and subdivision.</p> <p>2. It is no longer proper practice to address a demurrer to a writ of mandamus; it should be addressed to the petition, which is the real pleading and declaration of the relator. A defect in the writ should be reached by motion to quash; and if the opportunity for filing a motion to quash has been allowed to pass, the defect can not be reached by a demurrer, even though addressed as in this case to both the petition and the writ.</p> <p>3. Inasmuch as appeal from the action of the county commissioners lies only from decisions made by them in matter of claim or demand upon the county in its quasi corporate capacity, their action in refusing to designate the highest bidder as the depository of the public funds of the county is not appealable.</p> <p>4. The designation of a depository by the county commissioners is not a judicial but is a ministerial function, to be exercised without discretion, except in the matter of bond, at the time the proposals are opened by an immediate award to the highest bidder; and an aggrieved bidder is without remedy by way of proceedings in error to the award which the commissioners have seen fit to make, or to their refusal to make an award.</p> <p>5. The law assumes that any local bank or trust company, upon the furnishing of adequate security, is a safe and proper depository of tlie public funds; and a petition in mandamus by sucb a bank to compel the county commissioners to (Jesignate it as tbe public depository states sufficient facts, when it is averred that the relator is within the requirements of the statute as to location and organization, that the proper steps have been taken by the commissioners looking to a lawful letting, that the relator’s bid was definite both as to the amount of interest and the character of the surety offered, and that it was the highest offer by an appreciable margin, and that the commissioners have refused to designate the relator as the depository.</p>

<p>APPEAL IN DIVORCE CASES.</p> <p>Divorce Proceedings — Bight of Appeal is Permitted in Certain Counties —No Constitutional Inhibition — Intent of the Legislature — Bond and Other Details of Appeal.</p> <p>Notwithstanding an appeal in divorce cases is inhibited under the construction of the Ohio statutes which has obtained for half a century, and doubt may be entertained as to the real intention of the Legislature in the amendment of April 15, 1904, Section 525-1, the clear explicit language there used makes it obligatory on the common pleas courts of Pickaway, Licking,' Richland, Perry, Defiance, Henry and Coschocton counties to permit appeals from the probate courts of those counties in divorce cases.</p>

<p>TAXING ATTORNEYS’ FEES AS COSTS.</p> <p>Costs — Attorney’s Fees may he Taxed as, When — Recovery of Trust Property — Contribution—Attorney and Client.</p> <p>Where one of the beneficiaries to a trust fund recovers trust property and bears the burden and expense of the litigation for the benefit of others as well as himself, a reasonable fee will be allowed to his attorney as a part of the costs.</p>

<p>LIABILITY OF AN UPPER. PROPRIETOR TO ASSESSMENT FOR A TOWNSHIP'TblTCH.</p> <p>Water and Water-courses — Rights of Upper and Lower Proprietors— With Reference to Drainage into a Common Stream — Surface Water Includes Water Collected in Basins and Depressions, When —Assessment for Township Ditch — Upper Proprietor Relieved Therefrom, When — Assessment Apportioned — Injunction.</p> <p>1. An upper proprietor has a legal right to a reasonable use of a natural water-course flowing through his land; and in furtherance of such use he may change and control the natural flow of surface water, and by ditches or otherwise accelerate its flow, deepen, widen or straighten the stream, or cut a new channel for it in his own land, provided he allows the stream to pass off his land and upon the servient lands of lower proprietors substantially as before and without increasing the volume of water beyond the natural capacity of the stream.</p> <p>2. Surface water includes water that has collected in basins or depressions which will not drain into the natural water-course except by artificial means, and an upper proprietor has the right to make connections which will promote the drainage of such depressions, provided they are within the general watershed and the capacity of the stream is not thereby increased to such an extent as to substantially injure lower proprietors.</p> <p>3. Where an upper proprietor has drained his lands without exceeding his legal rights, and no advantage results to him from a township ditch which he did not enjoy before it was constructed, he is not chargeable with any part of the assessment for the cost of such an improvement, and an injunction will lie against the collection of an assessment levied on his land.</p>

<p>ACTIONS FOR DECEIT.</p> <p>Fraud — Action for Deceit may he Maintained against Third Party to the Contract — “Seller’s Praise” — Carried to the Point of Willful Falsehood — Outsider not Allowed Sainé Privilege as Owner— Section 4875-1.</p> <p>1. An action for deceit may be maintained by one of the parties to a contract against a third party, not a party to the contract, where such third party by false representations is responsible for loss to the one complaining and arising out of the making of the contract; and this is true although there was no collusion between the third party and the party to the contract who profited by the third party’s fraud.</p> <p>2. An owner of real estate when attempting to sell it has the privilege of indulging in “seller’s praise” even to the point of willful falsehood; but an outsider who undertakes to bring about a sale of real estate does not have the same privilege, and in making a false statement about the property for the purpose of inducing a sale he renders himself liable to the vendee in an action for deceit, notwithstanding the same misrepresentation would not render the vendor liable if he should make it — as, for instance, that the vendor would not sell for less than a certain amount, when in fact he was willing to take a much smaller sum.</p>

<p>RIGHT OF A GARNISHEE TO A HEARING.</p> <p>Attachment — Motion to ¡Discharge — Right of a Stranger to the Action to he Heard — Whose Funds are Covered hy Garnishee Process —Obtaining Jurisdiction hy Garnishment.</p> <p>In attachment proceeding's, where it is sought through the answer to a garnishee process to hold the funds of one who is a stranger to the action, pending the obtaining of jurisdiction over the defendant by publication, the owner ’ of the fund is “interested” in the proceedings within the meaning of Section 5121, and upon intervening by motion to discharge the attachment he has the right to he heard.</p>

<p>TAXATION OF LIFE INSURANCE COMPANIES.</p> <p>Taxation — Credits of Life Insurance Companies — Deferred Dividends —Reserve Fund — Bank Deposits — Contingent Obligations — Outstanding Checks can not be Deducted in Returning a Bank Deposit for Taxation — Undivided Profits.</p> <p>1. Money as defined in Section 2730, wiien on deposit and subject to' legal demand, is taxable, whether held by one in his own right or in a representative capacity, and outstanding checks which have not been certified can not be deducted from the balance in the bank in determining the amount to be returned.</p> <p>2. The accumulated deferred dividends or undivided profits of a life insurance company form no part of the reserve fund of the company, and are not a debt of the company, but constitute one of the taxable assets of the company, and must be returned by it for taxation.</p>

<p>DISCRIMINATION IN RAILWAY RATES.</p> <p>Railways — Discrimination in Rates — When Unequal Rates are not a Discrimination — Competition a Factor in Determining Reasonableness of Rates — Common Carriers under the Common Daw — Application of the Ohio Railway Rate Law.</p> <p>1. Common carriers were not required at common law, nor are they required under the statutes of this state, to charge a uniform rate per mile for the carriage of passengers over their entire lines, without reference to circumstances and conditions. Under substantially similar circumstances and conditions this is required both at common law and under the statute, and when unequal rates are charged between different points, such inequalities in rates must not be undue or unreasonable.</p> <p>2. Where it is charged that a railroad company is giving an undue and unreasonable preference in passenger rates to one or more localities over other localities on its line, competition of other roads in the carriage of passengers between such localities is a factor to be considered in determining whether such inequality in rates is or is not undue or unreasonable.</p> <p>3. Upon the facts disclosed by the evidence in this case it is held that the lower passenger rates charged by the Hocking Valley Railway Company between Columbus and Land f.ter and Columbus and Logan than it charged between Columbus and Athens, do not constitute an undue or unreasonable preference in favor of the localities of Lancaster and Logan, as against the locality of Athens.</p>

<p>FAILURE TO ACT WITH REFERENCE TO WRONGFUL ENTRY.</p> <p>Telephone Poles — Belief Where Pole is Placed on Land Without .Consent — Laches in Asserting Rights Against the Company — When Estoppel Arises Against the Land Owner — Action by Successor in Title.</p> <p>Mere acquiescence in the occupation of land by a telegraph or telephone pole, at least where possession was taken without notice, does not estop the owner or his predecessors in title from demanding relief from such occupation until the end of twenty-one years.</p>

<p>LOSS OF EYESIGHT ATTRIBUTED TO FUMES FROM WOOD ALCOHOL.</p> <p>Master and Servant — Brewery Employe Occupied in Varnishing Casks Loses Eyesight — Paralysis of the Optic Nerves Claimed as a Result of Use of Wood Alcohol in the Varnish — Logical Connection of Proof with Cause of Injury Necessary — Assumed Risk — Degree of Care Required of Master — In Providing Servant. Safe Appliances — Deficiencies in Expert Testimony — Negligence—Cause Taken from the Jury.</p> <p>1. In an action by an employe for damages for the loss of his eyesight from the use of wood alcohol in the varnish supplied to him for the purpose of varnishing the interior of large casks used in the brewery of his employers, it is necessary that the proof show that the fumes of wood alcohol would have the effect of destroying eyesight in the manner alleged; and such proof must be of such a clear and positive character that a basis will be provided which will justify the jury in drawing the inference that the injury was due to the cause alleged.</p> <p>2. One who enters such an employment is presumed to. have been made aware of the dangerous character of the work, both from the means adopted to avoid injury, and in the case at bar from years of experience in such work; and the dangers incident thereto must be held to have been assumed as risks of the occupation.</p> <p>3. A servant assumes the risks from latent defects in. appliances of which the master is not made aware through the exercise of reasonable care; and where the master furnishes the appliances in general use as the best protection against known danger, it can not be said that he'was negligent in not providing against a hidden danger of which he knew nothing.</p>

<p>PAY OF PUBLIC SCHOOL TEACHERS WHILE ATTENDING TEACHER’S INSTITUTE.</p> <p>Schools — Teachers Attending Institutes — Can not be Deprived of their Pay by Contract — Justices of the Peace — Demand for Jury too Late, When — Error—Appeal—Public Policy — Section J/091.</p> <p>1. In a trial of a civil action before a justice of the peace, tbe demand for a jury after the justice without objection has called the case for trial and sworn plaintiff’s witnesses, comes too late and should be refused and it is error not to do so if the amount is under twenty dollars, since it deprives the party of the right of appeal.</p> <p>2. A contract, entered into by a teacher in a township public school with the board of education required by such board as a condition of her employment, not to exact, demand nor receive pay for attending a teachers’ institute, as provided for in Section 4091, Revised Statutes of Ohio, is contrary to public policy, illegal and void.</p>

<p>INJUNCTION AGAINST USE OF PREMISES FOR. SLAUGHTER HOUSE PURPOSES.</p> <p>Nuisances — Per se and Prima Facie — Noxious Trades — Presumption as to the Manner in which a Legitimate Business will he Conducted — Slaughter House Becomes a Nitisance even if Conducted -in a Sanitary Manner, When■ — Property Rights — Injunction.</p> <p>A slaughter house is not a nuisance per se, hut may become a prima facie nuisance, and the construction and operation of such a plant, even where the business is to be conducted in a manner recognized as sanitary, will be enjoined where located within two hundred feet of a dwelling house and within fifty feet of the bams of one engaged in raising fine stock, but as to bams more than six hundred feet away no injury is likely to accrue against which a restraining order will be granted.</p>

<p>WHO MAY BRING AN ACTION TO CONTEST A WILL.</p> <p>Wills — ■Right to Contest — Construction of the Phrase “Any Person Interested in the Will” as Used in Section 5858.</p> <p>Under Section 5858, Revised Statutes, the right to contest a will after it hás been admitted to p'robate is in those persons only who were interested in the will at the time of its probate, and this right does not pass to the heirs of one who was interested in the will at the time of its probate, and who died within two years thereafter without bringing such an action.</p>

<p>ATTACHMENT BY A NON-RESIDENT CREDITOR.</p> <p>Attachment — Laws of this State Relating to — Gan not be Talcen Advantage of by a Non-Resident Greditor, When — Necessaries—Garnishment — Presumption as-i to the Laws of the Creditor’s Own Stale — Seclion 7014.</p> <p>1. Where a creditor and debtor are both residents of Pennsylvania, in which state the debt was incurred, and the debtor is an employe of a railroad operating in both Ohio and Pennsylvania, and the employment is along the line of the road in both states, the creditor can not come into Ohio and maintain an action in this state lor the purpose of subjecting his debtor to attachment for necessaries as provided by the laws of Ohio, and thus obtain a. presumable advantage over the debtor which the state of Pennsylvania did not provide.</p> <p>2. The fact that the creditor has come into this state and given bail for the purpose of prosecuting his action warrants the presumption, in the absence of any evidence as to the laws of Pennsylvania on this question, that the garnishment laws of this state are more favorable to the creditor than are the laws of Pennsylvania.</p>

<p>CONSTITUTIONALITY OF THE STATUTE REGULATING HOURS OF LABOR OF MINORS IN FACTORIES.</p> <p>Constitutional Law — Section 6986-8 Upheld- — Provision Forbidding the Employment of Certain Minors at Eight Work not Arbitrary— Glassification — Discrimination betiveen Classes — Police Power and Its Extending Scope — Fotirteenth Amendment and Bill of Rights —Protection of Life, Health and Morals.</p> <p>Section 6986-8, providing that no boy under sixteen years cf age and no girl under eighteen years of age shall be employed at any work at night time later than seven o’clock in the evening or earlier than six o’clock in the morning, is not an unreasonable exercise of the police power of the state and is constitutional.</p> <p>The defendant was indicted for employing a boy under sixteen years of age between the hours of 7 p. m. and 6 a. m., contrary to Section 6986-8 of the Revised Statutes.</p> <p>The proceeding was instituted by one of the inspectors of workshops and factories of the state of Ohio and demurrer was filed on the grounds that no offense had been committed as alleged in the affidavit for the reason that the act was unconstitutional.</p>

<p>JURISDICTION IN ACTIONS AGAINST RAILWAY COMPANIES.</p> <p>Negligence — Railways—Juris diction where the Principal Office is not in a County through tohich the Road Passes — Construction of Sections 50:2S and 50¿J¡ — Jurisdiction not Submitted to by Answering on the Merits, When — Actions against Domestic Corporations —Demurrer to Evidence — Words and Phrases.</p> <p>1. 'The provision in Section 5024, Revised Statutes, that an action against a railway company may be brought in any county through which the road passes, is not a mere extension of the general jurisdiction provided as to corporations in Section 5023, but in ■ each of these sections the word “may” must be read “must.”</p> <p>2. Jurisdiction is not obtained over a railway company in an action brought in the county where the principal offices of the company are situated, if the line of the road does not pass through that county.</p> <p>3. Where a railway company objects to the jurisdiction of the court over its person and expressly reserves its rights in that behalf, it does not voluntarily submit to the jurisdiction by answering on the merits, where the question of jurisdiction can only be decided by a trial of the case on its merits and the determination of the question of the existence or non-existence of liability 'on the part of its co-defendant.</p>

The facts in said case are as follows: The Chittenden Hotel, one of several hotels owned and operated by the plaintiff company, is located on the north side of Spring street, and occupies the entire space between High street and Wall street in the city of Columbus,' Ohio. The city, as a part of its sewer system, constructed sewers in Spring street and placed a catch-basin at the curb at the intersection of the north line of Spring street.

<p>PROSECUTIONS BEFORE A MAYOR.</p> <p>Mayor — Affidavit of Prejudice Filed Before — Change of, Venue — Jury Trial — Bill of Exceptions — Mayor Loses Jurisdiction, When — Judicial and Ministerial Duties — Liquor Selling — Criminal Law— Error.</p> <p>1. In the absence of statutory authority on the part of a mayor to certify a case to another court for trial, he can not be ousted of jurisdiction by the filing of an affidavit of prejudice.</p> <p>2. A mayor loses jurisdiction after rendering final judgment by pronouncing sentence on the defendant, and it is thereafter without authority to fix a time for filing a bill of exceptions.</p>

<p>DESCENT OF PROPERTY.</p> <p>Wills — Descent and Distribution — Property Descending by Devise Taken Per Stirpes.</p> <p>Where a testator left his estate to his widow with the remainder to her heirs, and the widow had children by a former husband and at her death these children became her heirs, the estate goes to them by devise and not through an intestate, and they take per stirpes and not per capita.</p>

<p>BRIBERY OF PUBLIC OFFICERS.</p> <p>Criminal Law — Bribery 9/ Public Officials — Sufficiency of Indictment —With Reference to Allegations of Purpose or Intent of Gift — ■ Charging Several Acts in One Count — Duplicity—Surplusage—Repugnancy — Use of Signs in Place of Words. n</p> <p>1. In an indictment charging the bribery of a public officer, it is sufficient to aver that money or some other valuable thing was corruptly given to him for the purpose of influencing his official action and conduct with reference to any matter officially pending before him, the matter to which reference is made being specified.</p> <p>2. An indictment is not bad for duplicity because it charges several acts in a single count, each and all of which violate the penal statutes but once and incur but one penalty; nor is it defective for surplusage or repugnant allegations, when there is sufficient matter alleged to indicate the crime and the person charged therewith.</p> <p>3. While the substitution of marks or signs in an indictment in the place of-words is extremely dangerous, the dollar (?) sign is in such common use that a court would not be justified under the provisions of Section 7215, Revised Statutes, in holding an indictment bad because the dollar mark is used in place of the word dollars.</p>

<p>INSURABLE INTEREST IN THE LIFE OF A SISTER.</p> <p>Life Insurance — Policy on Life of a Sister — Insurable Interest of Beneficiary — Application for Insurance — Premiums—Lapsing of .Policy.</p> <p>Where one makes application for a policy of insurance on her life am] names her sister as the beneficiary, and a policy is issued in accordance with the application and premiums are collected thereon, the company is estopped in the event of the death of the insured from denying that the sister who was named as beneficiary had an insurable interest in the life of the insured.</p>

<p>CONTRACTS IN RESTRAINT OF TRADE.</p> <p>Defenses — Must be Pleaded to be Made Available — Contracts—Where Operative Chiefly in Ohio are Governed by the Laws of Ohio— To be in Restraint of Trade a Contract must Tend to Create a Monopoly — Pleading—Agency.</p> <p>1. The proof of the defendant to an action for recovery of money for breach of -contract is confined to the issues as presented by his pleading, and where he has failed to plead his equities he can not thereafter set up the invalidity of the contract on the theory that it was a part of another contract not pleaded. (Hoffheimer, J., dissents.)</p> <p>,2. A contract made and executed in Ohio, the chief stipulations of which are to be performed in Ohio, is to be governed by the laws of Ohio.</p> <p>3. Inasmuch as the test of the validity of a contract involving the suggestion, of restraint of trade is its tendency to create a monopoly, a contract whereby a distillery appoints a dealer in liquor as its exclusive agent and agrees to pay him $1,000 a month, in consideration whereof the dealer agrees to manufacture no spirits or alcohol except such as may be required in making whisky at-the distillery, with the further provision that a certain rebate is to be paid the agent on all goods purchased from the principal, does not tend to create a monopoly, and is therefore not invalid as in restraint of trade.</p>

<p>SALE OF REAL ESTATE TO PAY DEBTS OF DECEDENT.</p> <p>Administration of Estates — Failure to Present Claim Based on Promissory Note — Payment of Interest Notes by Administrator Amounts to Allowance of Claim — Not Affected by Payment with Personal Check — Allowance of Claim Dates from'First Payment — Judgment Against Administrator — Force and Effect of — As to Heirs and Grantees Judgment is Generally only Prima Facie Evidence of Existence of Claim — Statutes of Non-Claim and of Limitations— Laches in Bringing Suit to sell Heal Estate to Pay Debts — Sections 4981, 6105, 6107, 6136 and 6172.</p> <p>1. Under the administration statutes of Ohio as they now stand the omission of the provision, in a judgment against one as administrator, that it shall be levied on the goods'and estate of the decedent, does not limit the judgment to the administrator individually.</p> <p>2. Where, as in Ohio, there is no privity between an administrator and the heirs of the decedent, a judgment against the administrator is no more than prima facie evidence against the heirs and their grantees’ of a claim against the estate, but for the purpose of this case, it may be considered that such judgment is conclusive evidence.</p> <p>3. While payment by an administrator of separate interest notes may not be an allowance by him of the claim on the principal note, a continuance by the administrator to pay the interest on the principal note for some years after it became due,,does amount to an allowance of the note as a just claim against the estate; and in the absence of notice or knowledge to the contrary, it is the right of the holder of the note to consider the payments as coming from the administrator in his capacity as administrator and not in his individual capacity.</p> <p>4. The allowance of such a claim will be treated as of the date of the payment of the first interest note, and until the validity of the claim is denied by the administrator no suit is necessary thereon to prevent the bar of the statute of non-claim.</p> <p>5. The right of an administrator to sell lands of the decedent to pay debts being purely statutory, the bar of the statute of limitations by the terms of Section 4981 falls in six years from the time the administrator ascertains that the personal estate in his hands is insufficient to pay all the debts of the decedent, and such knowledge will be attributed to him not later than the filing of his account.</p>

<p>ATTACHMENT FOR. NECESSARIES.</p> <p>Order for Wages for a Period Exceeding Thirty Days■ — Not a Bar to an Attachment for Necessaries, When — Section 6501.</p> <p>An order given against liis wages by a debtor to a creditor for necessaries furnished, does not, where the order is for a period longer than thirty days, defeat an attachment for necessaries against wages earned after the thirty-day period.</p>

<p>LIABILITY OF OWNER OF PROPERTY DESTROYED BY FIRE FOR LOSS SUSTAINED BY CONTRACTOR.</p> <p>Contracts — When Separable — When Entire — ■Intention of Parties Controls — Building Destroyea by Fire — Before Completion of Contract for Installation of Gas Fixtures — Owner of Building Held not Liable — Either Under the Contract or on a Quantum Meruit — Present Sale — Part Performance.</p> <p>D contracted with the S. M. Co. for a system of gas and electric fixtures, which were to be installed complete and to his satisfaction in a dwelling which he was then erecting. The fixtures were to be paid for in a lump sum, and a part of them were to be manufactured after a special design. The contract was made in Kentucky and was to oe executed in Kentucky. After all the fixtures had been installed except two, but before the. house was ready for occupancy, it was destroyed by fire without fault of either party. Held:</p> <p>1. It is not the divisibility of the subject matter of a contract, but the intention of the parties, that determines its nature; and while the fact that it is divisible may assist in arriving at the intention of the parties, it can not be used to override a manifest intention to make it an entire contract.</p> <p>2. The contract in suit was not a present sale of chattels, but an entire contract of an executory character, and under the law of Kentucky there could be no recovery thereon by the contractor either on his contract or on a quantum meruit.</p>

<p>VALIDITY OF VEHICLE LICENSES.</p> <p>Licenses — For Vehices Used upon Streets — Power of a Municipality to Impose — Exemption of Non-Residents — License Fee not a Tax— Application of Fees by Municipality — Ordinance—Uniformity of Operation — Injunction.</p> <p>1. An ordinance providing that license fees shall be collected from owners of vehicles used upon the streets, is within the power of a municipality to regulate the use of its streets, and is not unconstitutional.</p> <p>2. But such an ordinance is not to be construed as applying to persons who do not live within the municipal limits and only occasionally drive over its streets.</p>

<p>FAILURE TO SECURE EVIDENCE AS A GROUND FOR. A NEW TRIAL.</p> <p>New Trial — Newly Discovered Evidence as a Ground for — Not Buffi dent, When Discretion of Trial Judge — Accident and Surprise— Error.</p> <p>Newly discovered evidence is not a sufficient ground for granting a new trial, unless its effect would be such, as to- require a different verdict; and where the affidavits of witnesses who were not produced because the defendant had lost their names merely show that their testimony would merely tend to contradict that of the plaintiff, it is not an abuse of discretion on the part of the trial judge to refuse to grant a new trial.</p>

<p>REJECTION OF BID AFTER ACCEPTANCE.</p> <p>Municipal Corporations — Contracts with Board of Public Service — Not Enforcibe Unless in Writing — Bid may be Rejected after Acceptance, When — No Tested Right Acquired by Contractor, Unless ■ — Mandamus.</p> <p>A municipality is not bound by a contract entered into by its board of public service under favor of Section 1536-679, unless it is in writing; and it follows that mandamus will not lie to compel the award of a contract which had been once accepted by the board, but before notice to the bidder the acceptance was rescinded and all bids rejected.</p>

<p>ENCROACHMENT OF BUILDING ON STREET.</p> <p>Mandatory Injunction — For Removal of Building Encroaching on Street —Parties—Service by Publication — Nuisance—Jurisdiction—Estoppel — Equitable Remedies — Right to a Jury — Judgments in Personam — Section 60J/S-S.</p> <p>1. In an action by a municipality to compel by mandatory injunction the removal from the sidewalk of so much of a building as en-croaches thereon, the owner of the property, as well as the lessee who erected the building, is a necessary party.</p> <p>2. Such an encroachment may be treated as a nuisance, and jurisdiction obtained over a non-resident owner of the property by serving him by publication, notwithstanding a decree in injunction operates in personam.</p> <p>3. The defendants in an action for removal of a building encroaching upon the street are not entitled to a jury trial, but the.case is one for determination by a court of equity.</p> <p>4. The statutes provide the only way a street may be narrowed, and no act by the municipality not in accordance with the statute, but which might be construed as an abandonment of some part of the street, gives to an abutting property owner the right to encroach thereon; nor is estoppel created against the municipality by reason of the fact that other property owners have been permitted to so encroach.</p> <p>5. The decree fbr the abatement of a nuisance of this character, where the property owner is served by publication and the structure is erected by the lessee, will be directed against the lessee and his sub-lessees who stand in the position of lis pendens purchasers. As to the owner the finding should be that he has no right or interest in that part of the building which extends over the true line of the street.</p>

<p>DIVISION OF COSTS ON TEST CASE.</p> <p>Champerty and Maintenance — Contracts Tending to Encourage Litigation — Agreement to Divide Costs of Suit in Test Case Champertous.</p> <p>An agreement between two persons who have similar claims against a third, whereby one of them undertakes to prosecute a suit against such third party to a final judgment as a test case, in consideration of the other agreeing to bear one-half of the costs in the event the suit is lost, is champertous, against public policy and void.</p>

<p>BIDDING FOR MACHINERY FOR. A MUNICIPALITY.</p> <p>Bids and Bidding — Construction of Specifications — Saving Reference to Machinery which has Stood the Test of Use for Two Years■ — ■ Specifications Refer to Type, not to Details of Construction — Discretion of Board of Public Service'■ — Injunction—Municipal Corporations.</p> <p>1. Where a board of public service advertises for machinery that has been in successful commercial operation for at least two years, a machine which is of the general type and possesses the features of those which have stood the two years test is within the specifications, notwithstanding changes designed to render the machine more efficient have been made within the two years.</p> <p>2. The machine complained of by the plaintiff in the present case is of such a type, and the owners will not be shut out of the competition because of minor differences of the character indicated.</p> <p>3. But whether or not a machine is one that has been in successful operation for two years is a matter for determination by the board of public service along with other facts connected with the bidding, and in the absence of a showing of fraud or abuse of discretion on the part of the board, a court w-ill not interfere.</p>

<p>WITHDRAWAL OF PETITION FOR A BEAL LAW ELECTION.</p> <p>Liquor Laws — Petition for Election under the Beal Law — Withdrawal of, Because of the Inadvertence of a Public Official — Petition Refiled and Proceedings had de Novo — Validity of the Election— Directory Provisions — Essence of the Statute — Presumption as to the Regularity of the Petition — Elections—Sections Ji36Ji$0a and 7095.</p> <p>1. The provisions of the Beal local option law, requiring that the “petition shall be filed as a public document with the clerk of the municipality, and preserved for reference and inspection,” is directory only, as distinguished from mandatory.</p> <p>2. Where it appears that through an inadvertence of the clerk of council, in failing to give the necessary legal notice, an election can not be held under the first filing of the petition, it may be withdrawn and re-filed with a change of date, by consent of the petitioners, notwithstanding action had been taken upon it by council, and proceedings may be had ele novo with reference to it, and such subsequent proceedings will not be rendered irregular nor the election invalid by such withdrawal.</p> <p>3. When such action has been taken, it will be conclusively presumed, in the absence of any evidence to the contrary, that such withdrawal and refiling as a new petition, was with the consent and approval of \the petitioners.</p>

<p>ESTABLISHING A TRUST IN REAL ESTATE.</p> <p>Trust — Creation of, in Lands Toy Parol — Resulting Trust in Favor of the One Paying the Purchase Money — Beneficial Estate Follows the Consideration — Payment not Contemporaneous With Purchase —Evidence—Title.</p> <p>1. Where the weight of evidence Indicates that gifts of money were intended to he for the use and enjoyment of two persons, and it is invested in real property and the title taken in the name of one of them, and their conduct at the time and for a period thereafter indicates that the ownership of the property was regarded by both of them as joint, a resulting trust will be implied which may be established hy parol.</p> <p>2. The rule that the payment of money by the cestui que trust at the time of the purchase is indispensable to the creation of a trust, does not apply to a trustee who already had in himself the title to property of the cestui que trust which it had been agreed should be sold and the proceeds invested in other property.</p>

<p>NEGLIGENCE AT A STREET RAILWAY CROSSING.</p> <p>Weight of Evidence — Determines negligence at a Street Railway Grossing — Rights of Pedestrians — Age of the One Injured— Circumstances Surrounding her at the Time of the Accident— Charge of Court — Holdings in the Snell Case Applied.</p> <p>A girl fourteen years of age, seeing the car she desired to take approaching one hundred and fifty feet away and slowing down for the crossing where a number of intending passengers stood waiting, attempted to cross the track diagonally to join the group, when the motorman who was behind time suddenly turned on the current with the intention of running by the group without stopping, and the girl in her freight as the car sprang forward stood motionless and ■ was struck. The defendant company moved for an instructed verdict. Held:</p> <p>1. The question of negligence was one peculiarly within the province of the jury under proper instructions from the court as to negligence (1) where one attempts to cross a street railway track before an approaching car at a crossing, (2) where a situation of. peril is suddenly presented, and (3) where the one injured was a minor.</p> <p>2. Under the Ohio law a court would not be justified under any circumstances in imputing negligence to a child as a matter of law.</p>

<p>DAMAGES FOR. WRONGFUL EJECTMENT FROM CAR.</p> <p>Charge of Court — Pleading—Wrongful Ejectment from Car — Action for Damages for — Injuries Other that Those Averred in the Petition— Attorneys Fees.</p> <p>1. In an action by a passenger for unlawful and malicious ejectment from a car by tbe conductor, a special charge to the jury is properly refused, which states that plaintiff may be awarded damages for injury to his person, when the only injury averred in the petition was to his feelings.</p> <p>2. A special charge is also properly refused, which states that if the jury find the, defendant company liable to the plaintiff they may include in the damages a reasonable sum as attorneys fees, where the condition is not added that the jury must find the ejectment was malicious.</p>

<p>ENCROACHMENTS ON BUILDING RESTRICTIONS.</p> <p>Building Restrictions — Injunction against Violation of — Word “House” as Used in — Includes the Porch of the House — Restrictions Binding upon a Purchaser.</p> <p>1. The word “house,” as used in a building restriction, means a building and includes a porch which is an integral and substantial part of it.</p> <p>2. An injunction will lie against the construction of a “house” by an adjoining property owner, when the enjoyment of his neighbor’s property is substantially affected thereby as to view, light and air, although his neighbor may have submitted to encroachments upon portions of the street remote from him and not affecting his enjoyment, in violation of a general restriction.</p> <p>S. One buying land for the purpose of building a house upon it is held to have fully contemplated not only the restrictions in his deed but such surrounding conditions as were obvious and material.</p>

<p>PRIORITY OF LIENS.</p> <p>Judgment — ■Enforcible According to Its Tenor Notwithstanding Error, When — Becomes lies Judicata — Decree Charging Specific Property ■ — Does not Become Dormant Through Failure to Issue Execution —But Rights May Be Lost by Laches — Priority—Homestead-Proceedings in Error — Section S380.</p> <p>1: Whatever has been once decided by the Supreme Court on proceeding in error can not be re-examined on a second proceeding in error brought in the same suit. The first decision has become the settled law of the case.</p> <p>2. A judgment or decree of a court of general jurisdiction is valid and enforcible according to its tenor, notwithstanding the court may have erred in granting equitable relief where only a cause of action at law was disclosed by the proof; and when such judgment or decree is affirmed by the Supreme Court it permanently fixes the rights of the parties and it can not be modified on a second pr<5ceeding in error to the Supreme Court.</p> <p>3. A decree in equity charging specific property with the payment of a debt, and ordering a sale thereby, does not become dormant at the expiration of five years unless execution is issued. Not béing a personal judgment it is not enforcible by execution, and therefore Section 5380, relating to dormancy of personal judgment, is not applicable to it.</p> <p>4. Decrees charging specific property do not become dormant, but rights given thereby may be lost by laches in permitting them to remain inactive for a great length of time to the prejudice of innocent parties. However, where there is a valid excuse for not enforcing the decree (as in this case, the assertion and allowance of a homestead), it will continue a charge upon the property as against the entire world.</p> <p>5. In 1883 the District Court of Hamilton County, Ohio, rendered a judgment or decree charging certain described real estate with the payment of a debt of Tabitha Meyers, a married woman. This judgment was affirmed by the Supreme Court. Execution was never issued upon their judgment. Subsequently Mrs. Meyers claimed a homestead in this real estate and the Supreme Court, on a second proceeding in error, sustained her claim'thereto. Thereafter she continued to occupy this property as a homestead to the time of her death, and during said occupancy she gave a mortgage thereon. Her administrator brought suit to sell this real estate to pay debts, and made the owners of the judgment or decree and the mortgagee parties. On distribution it was Held: That the judgment lien or charge had priority over the mortgage lien.</p>

<p>LIABILITY OF VILLAGE FOR. ARREST.</p> <p>False Imprisonment — Sufficiency of Petition for Damages — Necessary Averment as to Capacity in Which the Officers Concerned Acted.</p> <p>In an action against a village and others for damages for false arrest, it is necessary, in order to render the village liable, to aver not only that those who made the arrest or caused it to be made were officers of the village, but also that they were acting at the time in their official capacity.</p>

<p>PLEADING UNDER. THE LIMITATION OF PRISON EMPLOYMENT ACT.</p> <p>Pleading — Question of the Constitutionality of an Act can not he Raised hy a Motion to Strilce Out — Limitation on Prison Employment— Averments in an Action for Enforcement of Statute Relating to.</p> <p>1. The question of the constitutionality of a law can not be raised on a motion to strike out.</p> <p>2. In an action to enforce the provisions of Section 7432-1, placing a limitation on the amount of prison labor which may be engaged at any one time in the manufacture of any one article or class of goods in this state, it is sufficient to aver that a specified number ' of men are engaged in making certain specified articles.</p>

<p>CONSTRUCTION OF WILL DEVISING A LIFE ESTATE.</p> <p>Wills — Life Estate can not he Carved into Smaller Life Estates — For Children of First Devisee — Administration of Estate.</p> <p>A testator gave his son, upon his attaining his majority, a life estate in a farm, his widow to have the use of the farm until the son arrived at his majority and in case of his death before attaining his majority, to have the use of the farm during her life. Thereafter he made the following disposition of the residue of his property consisting of the other valuable personalty and realty: “Item 5. It is my will and I hereby devise and bequeath that all the rest and residue of my said estate not herein before disposed of and remaining after the foregoing devises and bequests shall have been satisfied, he divided equally among all my children share and share alilce to have and to hold to them and each of them for his dr her natural life and no longer.</p> <p>“And after the death of any of my children his or her said share shall go to and become the property of his or her child or children in fee simple forever; but if any of my said children shall die without a child or children living at his or her death then • the share hereby devised to any of my children so -dying shall fall into and become a part of the residue of my said estate.” * * *</p> <p>The son attained his majority and entered into possession of the farm and held same during his life and in addition enjoyed for his life an undivided one-fifth of all the rest and residue of the estate of his father, the remaining four-fifths being enjoyed by his four sisters under Item 5.</p> <p>The plaintiff, the only child of the son, after her father’s death, took possession^ this farm claiming title thereto in fee simple as well as a fee simple title in one-fifth of the other property left by the testator.</p> <p>The sisters of the plaintiffs father contended that they were entitled to estates for their lives In the farm, after the death of their brother, with remainder over to their children in fee simple in case any of them left issue.</p> <p>Held: That the farm having been once disposed of for life to the son, could not again be carved into a smaller life estate to such son; that an intention to prefer the son was thus manifested, and therefore that the share of the son in his father’s estate was the farm and one-fifth of the rest and residue of the estate, which upon his death passed to and became the property of his child (the plaintiff) in fee simple.</p>

<p>LIMITATION OF LIABILITY UNDER LAWS FOR THE PROTECTION OF THE GENERAL PUBLIC.</p> <p>Electric Wires — Failure to Conform with Law — As to Location of Poles and Insulation of Wires — Classes to whom Protection is Afforded — Negligence—Ordinance Governing Location of Poles and Insulation of Wires — Section ' SJiIS-S.</p> <p>The violation by an electric light company of an ordinance and also of general law relative to the location of its poles and wires and the use of insulation creates no liability because of the death from contact with one of its wires of a lineman employed by a telephone company, who in accordance with established custom had climbed one of the poles of the lighting company for the purpose of adjusting telephone wires.</p>

<p>LAND FLOODED BY RAISING LEVEL OF CANAL.</p> <p>Actions — Not Maintainable Which will Operate upon the State — Although the State does not Appear in the Title — Mandatory Injunc1 tion to Compel Lowering of Water in Canal — Jurisdiction—-State Board of Public Works — Taking Property without Compensation , —Official Discretion — Actions against the Government and against Officers who have Failed in Performance of Official Duty Distinguished.</p> <p>1. An action can not be maintained against the state of Ohio without its consent where the relief asked will operate upon the state, or the state is the real party in interest although not named in the title.</p> <p>2. An action against an executive board administering public works of the state, where the relief asked is to compel the said board to change the character of public works as established by them and their predecessors in the exercise of their official discretion as necessary and proper for officially accomplishing the objects for which said works were constructed, the state is the real party in interest, and the action can not be maintained without the consent of the state.</p> <p>3. Where the level of the waters in a state canal, its reservoirs and feeders, has been raised, a court is without jurisdiction in the absence of consent of the state, to compel the members of the board of public works by mandatory injunction to restore the original level of said waters in order to prevent overflowing the lands of the plaintiff.</p>

<p>PURCHASE OF SECURITIES OF A COMPANY BY ONE OF ITS DIRECTORS AT LESS THAN PAR..</p> <p>Corporations — Construction of Section 8813 — Making Void, Securities Purchased of a Company by a Director at less than Par — Guaranty of Bonds — Set-off.</p> <p>1. Bonds which have been guaranteed by a corporation become a “security” of that corporation within the meaning of Section 3313.</p> <p>2. Securities which have been purchased from a corporation by one of its directors at less than par are, under the provisions of Section 3313, void in his hands only.</p> <p>3. A guarantor of bonds can not, as a set-off in an action against a director on bis contract of guaranty, Recover from bim by reason of tbis statute tbe difference between tbe purchase price of said bonds and tbeir par value.</p>

<p>VALIDITY OF BEAL LAW ELECTION.</p> <p>Elections — Jurisdiction to Order a Beal Law Election — Irregularities —Marked Ballots — Provisions of the Statutes which are Directory only — Failure to Observe does not Invalidate an Election, When — Omission of Appointment of Challengers and Inspectors— Effect of Failure of Supervisors of Elections to Act — Sections 2966-31, and 2966-38.</p> <p>1. It is the filing of a sufficient petition for an election under the Beal law, and not the finding of council thereon,’which confers jurisdiction on council to order that an election be held; and whether the finding of council as spread on its record is sufficient or not is immaterial.</p> <p>2. In the absence of any showing of fraudulent intent or that the result was changed thereby, an election is not vitiated by the fact that a ballot was voted upon which a number had been placed in some unknown manner, or because the judges recounted the ballots and changed their decision as to one which had been in dispute.</p> <p>3. The provisions of Sections 2966-34 and 2966-38, Revised Statutes, as to the appointment of challengers and inspectors of electiens, is not mandatory but directory only, and failure to make such appointments is an irregularity which does not invalidate an election at which there was a comparatively full vote cast with no evidence of fraud or attempts to deceive; nor does the dereliction of deputy state supervisors of elections, or of any of them, invalidate an election, where it does not appear that except for such dereliction there would have been a different result.</p>

<p>NECESSARY PARTIES TO AN ACTION FOR. RECOVERY OF LIFE INSURANCE PREMIUMS.</p> <p>Life Insurance — Repudiation of Contract Try the Company — Action for Recovery of Premiums Paid — Insured and the Beneficiaries Necessary Parties — Pleading—Amendment—Sections 511I¡ and JiOJ/S Relating thereto — Laches.</p> <p>1. Both, the insured and the beneficiaries are necessary parties to an action for recovery of premiums paid on a policy of life insurance which has been repudiated by the company.</p> <p>2. A reviewing court has jurisdiction to grant a motion to^remand a cause for amendment by the adding of parties.</p> <p>3. Such a motion will be granted where the omission of necessary parties was an error which was not obvious and could only have been ascertained by a careful comparison and analysis of authorities, some of them opinions announced subsequent to the original filing of the action, and such an amendment is necessary to preserve rights which would otherwise be lost. _</p>

<p>PROCEEDINGS FOR. SALE OF REAL ESTATE TO PAY DEBTS.</p> <p>Administration of Estates — Sale of Realty to Pay Debts — Effect of Dower — Title—Statute of Limitations Begins to Run Against Claimants, When — Presumption as to the Regularity of the Court Proceedings — Wills—Section 6168.</p> <p>1. Where a will directs that the widow shall have a life estate in one-third of all the property of the testator, and directs that the property be sold to pay the debts of the estate, a sale by the administrator, where the record shows that the probate court found it necessary to sell the whole estate to pay the debts and ordered that all the property be sold subject to the widow’s dower, passes title to the entire property, even though the widow may have elected to take undei* the will.</p> <p>2. The proceedings of'a probate court to sell the lands of a decedent to pay his debts are presumed to have been regular, and where the order of sale shows that due notice was given to interested parties, it will be presumed that infant heirs received proper notice, and that the court had jurisdiction.</p>

<p>SAFETY OF APPLIANCES IN USE BY WORKMEN.</p> <p>Master and Servant — Appliances—Negligence of Master in Providing Arises, When — Tests as to Safety — Assumed Risk — Expert Testimony — Error.</p> <p>1. The ordinary care which a master is bound to use with respect to the safety of appliances provided for his workmen requires the application of no more than ordinary tests, and does not require the employment of experts or the application of the highest tests as to the adequacy or safety of such appliances.</p> <p>2. Where the whole function of a brake equipment is to regulate the speed of a car which runs slowly and at a uniform rate down a slight grade for a few hundred feet only, experNtestimony as to railway freight train standards is inapplicable and its admission would be erroneous.</p> <p>3. A claim that a brake chain was inadequate has no basis, where the testimony discloses that the parting of the chain and resulting accident was due to a latent defect such as the imperfect welding of one of the links, and not to the lightness of the iron from which the chain was made.</p>

<p>THE ACT LIMITING PRISON LABOR.</p> <p>Actions against the State — May he Maintained, without Contest, When —Constitutional Law — Act Placing Limitation on Employment of Prisoners Void for Lack of Uniformity — Jurisdiction—Contracts— Injunction — Equal Protection and Benefit.</p> <p>1. The rule that an action will not lie to enjoin state officers from doing acts required o’f them by state laws, although such acts when performed will constitute a breach of a contract entered into by' the state, does not apply where state officers are proceeding under color of an unconstitutional law to violate a contract with an individual to his irreparable injury.</p> <p>2. Section 7432-1, placing a limitation on the employment of prison labor, is .unconstitutional and void because of its unequal operation; and Section 7432-2, providing a method for enforcing the provisions of Section 7432-1, is also void because it leaves entirely to the discretion of an individual whether or not a constitutional guaranty shall be observed.</p>

<p>CONTRACTS WITH TOWNSHIP TRUSTEES.</p> <p>Contracts — Rendered Void When With Toionship Trustees — By Failure to Certify that the Necessary Funds are in the Treasury— Rule for Construing Statutes — Section SSSJ/b.</p> <p>1. The provisions of Section 2834b, Revised Statutes, requiring that before any contract is entered into by township trustees the clerk shall file a certificate stating that there is in the treasury, and unappropriated, funds sufficient to meet the obligation proposed, is a general provision relating to townships and applies to the letting of contracts in all townships of the state.</p> <p>.2. Failure to file such a certificate renders a contract void, and it is therefore necessary in an action on a contract with township trustees that the petition allege that the clerk certified before the contract was entered into that the funds necessary to meet the liability imposed thereby were in the treasury.</p>

<p>LIABILITY OF CONNECTING CARRIER.</p> <p>Goods Damaged in Transit — Gaught in Flood and Returned by Third to Second Gonnecting Railway — Failure to Notify Consignor Results in Total Loss — ■Storage of Goods in Transit — Reasonable Diligence as to Notice of Damaged Condition.</p> <p>A piano, caught in a flood while in transit, was returned to the forwarding line in a damaged condition, but capable at a comparatively small cost of being made as good as new. By the forwarding company it was placed in a warehouse and allowed to remain there without attention for a number of months and until entirely ruined.</p> <p>Held: The fact that the instrument had been delivered to a connecting line did not release the forwarding carrier from the obligation to preserve it from further injury when again coming into possession of it, and in the absence of notice to the consignor of its whereabouts and condition the forwarding line is responsible to the consignor for the full value of the instrument, less the damage originally caused by the flood.</p>

<p>ALIMONY TO A WIFE AFTER. HER RE-MARRIAGE.</p> <p>Husband and Wife — Nature of Alimony — Includes both Maintenance and a Share of the Husband’s Estate, When — Efect of Re-Marriage of the Wife — Still Entitled to the Award Made as he?- Share of the Joint Estate.</p> <p>1. Alimony, where granted to a wife on the aggression of her husband, may include both an allowance for maintenance which must be paid although the husband possesses no estate, and also a share of the estate where one has been accumulated by their joint efforts during their married life. An allowance for maintenance may be kept by the court under its control, and subsequently modified to suit changes in the circumstances of the parties; but an allowance to a wife as her share of the joint estate, as in lieu of dower or a division of the property, can not be subsequently changed.</p> <p>2. The marriage of a divorced woman to a wealthy man is a sufficient ground for discontinuing an order for the payment to her of alimony for maintenance; and where the allowance to her manifestly included both maintenance and a share of her former husband’s estate, the court will separate the allowance into its two elements, and order that the share intended to cover maintenance be discontinued.</p>

<p>APPEAL IN ATTACHMENT PROCEEDINGS.</p> <p>Attachment — Motion to Discharge — Appeal from Ruling of Justice of the Peace — Review must be Confined to the Original Papers — What the Affidavit must Show — Burden of Proof tohen the Affidavit is Traversed — Failure to File Counter-Affidavits — Proceedings in Attachment against Corporations — Defense of No Attachable Interest does not Lie — Section 8J/89.</p> <p>1. On appeal from the ruling of a justice of the peace on motion to discharge attachment, the court, or a judge thereof in vacation, can only review the proceedings of the justice of the peace from the original papers filed with said court, or judge, by said justice.</p> <p>2. The affidavit for attachment only requires that such affidavit show “the nature of the plaintiff’s claim,” and on motion to discharge the attachment a statement that the nature oí the plaintiffs claim is “for money, and for damages for breach of contract which is verbal” sufficiently states the nature of the plaintiffs claim.</p> <p>3. Where the statements of the affidavit for an attachment are denied by the affidavit of the defendant, the burden of proof is upon the plaintiff to substantiate the averments; and where it appears from the original papers transmitted by the justice of the peace that no additional affidavits have been filed by the plaintiff to overcome the affidavit by the defendant, the plaintiff must fail on the burden of proof.</p> <p>4. In a proceeding in attachment before a justice of the peace, a domestic corporation may be proceeded against either as a corporation, or as a non-resident of the county in which the affidavit is filed, but in either case it must appear from the affidavit that such corporation has no officer in the county upon whom summons may be served, or no place of doing business within the county.</p> <p>5. Under Section 6489, Revised Statutes, which is amendatory of Section 28 of Justices’ act, (S. & C., 776), a foreign corporation may be proceeded against before a justice of the peace the same as a domestic corporation, but subject to the same statement in the affidavit that such corporation has no officer in the county upon ' whom summons may be served, or no place of doing business within the county.</p> <p>6. It is no defense to, a proceeding in attachment that the defendant has no attachable interest in the property attached. The plaintiff assumes the risk of attaching property of a third person.</p> <p>West c§ West, for defendants.</p>

<p>ACTION ON THE BOND OF A BANK CASHIER..</p> <p>Surety Bonds — Liability Arising on Bond of Defaulting Bank Cashier —Validity of Original Appointment by Finance Committee — Subsequent Election by the Full Board — Term of Office Covered by Bond — Laches in Failing to Require a New Bond — Application of the Hold-over Doctrine — Assignee of the Bank Real Party in Interest in Action on the Bond — Amount of Defalcation during the Life of the Bond — Rule as to Application of Credits ivith Reference to Different Classes of Indebtedness — Estoppel—•Section 32.ff.</p> <p>1. The appointment of a bank cashier by the finance committee to fill a vacancy, subject to the approval of the board at its semi-annual meeting, constituted under the rules and by-laws of the bank concerned in this action a valid and legal appointment, where the appointee proceeded to act under the appointment, and gave bond pursuant thereto, and particularly where the bond recites that the principal therein "has been chosen and appointed cashier.”</p> <p>2. Under the terms of a bond given to the directors of a bank as directors and not as individuals, with the relations and understanding of the parties as in this case, the bank becomes the real and sole party in interest with the right to sue thereon, and the assignee of the bank succeeds to the same right.</p> <p>3. A bond is simply a contract of suretyship, and the same rules apply in its construction that apply to contracts generally, except that the letter of the contract should be more strictly construed; if such a contract is silent as to the term for which it is to run, the court will determine its life from the facts and circumstances surrounding the parties at the time of its execution; and where the bond is given by an officer of a bank, appointed by the finance committee to fill a vacancy, its life will be held to cover the period intervening between such appointment and its confirmation by an election of a board of directors; and the laches and negligence of the directors at the time of such confirmation, in failing to provide for a new bond predicated upon such election, is the misfortune and default of the bank, and can not be charged against the bondsmen.</p> <p>4. Where it is conceded in an action on the bond of a bank cashier that certain collateral was embezzled during the term covered by his bond, the burden is on the sureties to show that any part of said collateral was subsequently returned and placed in the files of the bank.</p> <p>5. Property was turned over by the cashier, defendant in this case, to the president of the bank, as trustee, to secure to that extent his indebtedness to the bank by reason of his defalcations. This was done without designation as to what part of the indebtedness this credit should be applied.</p> <p>Held: That in the absence of a designation as to the items upon which this credit should apply, the law upon equitable principles will imply that the debtor intended that it should be used in payment of that part of his indebtedness which was the most precarious.</p>

<p>CONSTRUCTION OF THE WORD “ SUITABLE ” AS APPLIED TO EXECUTORS.</p> <p>Administration of Estates — Who are Suitable for Discharge of the Trust — Construction of the Word “Capable” — ■Section 6000.</p> <p>Where a sister of the testator is named as a devisee and also one of the executors, the probate court can not consider objections to her appointment, where made by other beneficiaries on the ground of her hostility toward them, or her lack of business experience, or her unsuitableness for any other reason which does not amount to mental or physicial incapacity to discharge the trust.</p>