Volume 6 — Ohio Nisi Prius Reports

<p>(1.) Where a court has jurisdiction of {he subject matter of an action, and the form of action in which suit is brought, and the parties are before the court by proper process, its jurisdiction in a particular ease brought in that form is not ousted by evidence showing that the action is misconceived and that some other action should be resorted to. That is simply good matter of defense. 4 O. S. 524.</p> <p>(2.) While the judgment in the action brought might be erroneous,it is not void; and the jurisdiction is not ousted by the erroneous exercise of the power conferred. 6 O. S. 302.</p> <p>(3.) Assuming, but not deciding, that a justice of the peace has no power to adjudicate concerning the termination of a lease, yet in an action of forcible de tainer where the defense relied upon is the existence and continuance of s~uch a lease, a judgment by the justice of the peace that such lease has terminated and that defendant is bolding over his term, while erroneous, is not void because of any defect of jurisdiction.</p> <p>(3.) The Superior Court of Cincinnati has no power conferred upon it to review the judgments of justices of the peace.</p> <p>(4.) Where, however, it is sought to enjoin for want of jurisdiction a judgment of a justice of the peace, and the identical question involved was, or could have been, determined in a proceeding brought for leave to file a petition in error to the Court of Common Pleas, by the plaintiff here who was plaintiff in error there, the decisioin of said Court of Corámon Pleas will be binding and conclusive upoii this court.</p> <p>(5.) No provisions having been made for perpetuating the evidence of proceedings for leave to file such petitions in error and the judgment of the court thereon, the same may be proved by competent parol evidence.</p>

<p>(1.) In order that a surety may avail himself of the , provisions of sec. 5833 Rev. Stat., it is necessary that his liability as surety be evidenced by the same written instrument which evidences the liability of the principal debtor.</p> <p>(2.) A contract is to be distinguished from the instrument of writing which evidences it; hence, while a contract maybe deduced from several writings which are or may bo properly connected together or related to each other, or which were •executed by the same parties at the same time in reference to the same subject matter, yet such several writings do not become integral parts of each other, so as to constitute a single instrument of writing, unless an intention so to constitute them is manifested by apt words incorporating one writing into the other and as a part thereof.</p> <p>(3.) Exclusive of sec. 5833, the rule that a failure on the part of the creditor to proceed within a reasonable time against the principal debtor, after notice so to do by the surety, followed by said principal debtor’s insolvency, will release the surety, is not law in the state of Ohio.</p>

<p>G.) The difference between a directory and mandatory provision in a statute is that while the legislature in both instances, intends that its commands shall be obeyed, an omission in the case of a statute that is directory does not invalidate the proceeding of which it is a part, while in the case of a mandatory statute the omission to follow it renders the proceeding of which it is a part illegal and void.</p> <p>(2.) fn matters of taxation where the requisitions prescribed are intended for the protection of the citzien and to prevent a sacrifice of his property, and by a disregard, of which his rights might be and generally would be injuriously affected such requisitions are not directory but mandatory.</p> <p>(3.) The estimates required by sections 2690 a, to 2690 q, and the appropriations therein provided for are mandatory so far as any municipal expenditure is concerned. Whether the failure to observe them would affect the validity of a tax levy. Quere?</p> <p>(4.) The requirement of the statute that the appropriating ordinance shall be detailed and specific is also mandatory. Ampt v. Brown Auditor, 5 Nisi Prius 98 re-examined and followed.</p> <p>(5.) The transfer from one fund to another or from one department to another department falling under the same fund are forbidden by the statute.</p> <p>(6.) An appropriation of $10000.00 which merely states that it is “For extra expenses' to be incurred during the Grand Army of the Republic Encampment in Cincinnati” is not sufficiently detailed and specific to meet the requirements of the statute.</p> <p>(7.) Money raised by taxation cannot be expended in the entertainment of public guests. Such an expenditure is beyond the power of a municipality.</p> <p>(8.) The decision to hold the Grand Army Encampment in Cincinnati not having been reached until after the estimates for the year 1898 had been made, and after the' appropriation for the first half of the fiscal year of 1898 had been made whatever increase in the legitimate municipal expenditures will be required by reason of such event may be paid out of the contingent, fund.</p>

<p>(1.) The rights of one who presents to the proper municipal board a petiton to improve a street,and who does not withdraw such petition after a change in the law affecting the rights of property holders in such cases and before the passage of the ordinance to improve, must be governed by the law in force at the time of the passage of the improvement ordinance, and not at the time the petition was presented.</p> <p>By failure to withdraw his request to the city for the improvement of the street before the improvement ordinance is adopted the property owner is presumed to have acquiesced in the continuance of the proceedings with knowledge of the changed conditions of the law.</p> <p>In such case his petition will be regarded as constituting a continuing offer held out to the city after the law has been so changed.</p> <p>(2.) It will not be presumed that the city acted independently of the petition of the property owner, although at the time it was presented it was not signed by the requisite number of property holders in interest as required by the law in force at such time.</p> <p>(3.) The city will not be chargeable with laches by failure to act upon the petition of a property owner within a prescribed time.</p>

<p>Where security is given with the intention that it shall be applied to the payment of the debt and be an indemnity to the surety, the surety is a mere trustee for the creditor, and substitution of the creditor may be decreed; but where the surety is indemnified only against the payment of the debt,it is personal to him and there can be no substitution or subrogation.</p>

<p> Weight of testimony as to alleged concealment by creditor for the purpose of inducing others to become sureties for the debtor. </p>

<p>(1) . An assignor is not entitled to homestead exemption to be paid from rents collected by the assignee, as against the claim of a mortgagee of the property rented, where the proceeds from the sale of the porperty were not sufficient to satisfy the mortgage.</p> <p>(2) . Until the purchase money is paid, the purchaser has not such an estate in land as will support the homestead right against the party to whom the purchase money is due.</p>

<p>1. An action cannot be sustained upon an injunction bond, until the final termination of the suit in which the injunction issued.</p> <p>2. A petition upon such bond which alleges no judicial action after the partial vacation of a temporary injunction by a judge at chambers, is defective. A final determination, in some form, that the injunction was improperly granted, should be averred. The interlocutory order of the judges is not such a final determination.</p> <p>3. Where a petition fails to state facts constituting a cause of action, demurrers to an answer to such petition, will not be sustained.</p>

<p>(1) . Construction of clause in insurance policy providing that suit must be brought within six months of the death of the insured.</p> <p>(2) . A long established custom of the company of sending an agent to collect the weekly premiums in advance does not constitute a waiver of the requirement of the policy that premiums shall be paid in advance, when the agent failed to call for four weeks.</p>

<p>(1) . Where there is an open way upon which children are permitted to stroll, those who are chargeable with a duty of care and caution toward them must_ take into account their childish instincts; and the question of the care exercised in running a car without warning upon a track bordering the way, which struck a child who heedlessly ran in front of it, is one for the jury.</p> <p>(2) . It can not be said, as a matter of law, that a child thus acting at the aga of five years was guilty of contributory negligence.</p>

<p>A person crossing a railroad track has the right to assume that the railroad company has obeyed the law with respect to blocking frogs, unless in the exercise of ordinary care, he learns or ought to learn that the contrary is true.</p>

The action was prosecuted for the purpose of contesting the will of Elizabeth Bates, deceased. At the trial proponents first offered the will and the probate thereof,and rested.

<p>Tax laws exacting forfeitures are classed with penal laws in Ohio, and must be strictly construed.</p> <p>The county treasurer is protected by law in discharging his duty as he understands it, process for sale of property for delinquent taxes in apparently due form of law having been given.</p> <p>Under sec. 2864, R. S., the county auditors of Hamilton and Cuyahoga counties have to advertise delinquent tax sales between the 20th of December and the first Monday m February, and sec. 2870 instructs the treasurer of Cuyahoga county to begin the delinquent tax sale on the first Tuesday of February, and all other county treasurers on the third Tuesday in January. There is no exception in favor of the treasurer of Hamilton county. A legislative intent can not be construed into this section authorizing the treasurer of Hamilton county to sell the lands of delinquent tax payers at any day succeeding the cessation of the advertisement. Where it therefore appears that.the lands in question were sold by the treasurer of Hamilton county on the first Monday in February, the sale is clearly invalid.</p> <p>In a suit by the owner to quiet his title to property sold at a delinquent tax sale, the costs will be assessed against the purchaser at such sale, when a legal tender of the amount due has been properly made to the tax buyer.</p>

<p>Dedication of street — What sufficient in Adverse Possession.</p> <p>1. The dedication of a street according to the formalities of the statute is not an exclusive method of dedication in Ohio, but a dedication may be made according to the rules of the common law.</p> <p>2. Under a common law dedication, “no particular word or ceremony or form of conveyance is necessary to render the act of dedicating the land to public uses effectual. Anything which fully demonstrates the intention of the donor or the acceptance by the public works that effect.”</p> <p>3. There is no established standard by which the use necessary to determine an acceptance by the public may be measured and declared to be sufficient; a use which would naturally follow from the character of the place and the settlement of the community is sufficient.</p> <p>4. The doctrine that adverse possession can be established by fencing in a public highway has been greatly modified in Ohio. The tendency of the later decisions, is to hold that adverse possession to be effective must have its basis in Equitable Estoppel.</p> <p>5. Section 2650 Rev. Stat. providing that no street or alley dedicated to public use shall be deemed a public street or alley until acceptance, by an ordinance passed for such purpose, was not intended to deprive the public from asserting its rights to streets which have become such under common law dedications, but to prevent proprietors of ground from laying out streets and imposing upon municipal authorities, without their consent the duty of keeping them in repair.</p> <p>6. Even before the acceptance provided for in sec. 2650 of a street whose dedication has been tendered to the public, a city has the right to prevent obstructions and nuisances in the same.</p>

<p>When a suit is brought by a taxpayer under sections 1777, 1778 and 1779, Revised Statutes, to restrain the illegal expenditure of money of a municipal corporation, rnd, upon hearing, the court And that the allegations in the petition are well founded, and are sufficient in law to obtain the relief sought, it is immaterial what motive actuated the plaintiff in bringing the suit, and the court, in giving judgment, may allow him his costs, including a reasonable compensation to his attorney.</p>

<p>(1) . The want of legal capacity to sue, as a cause for demurrer, has reference to plaintiffs under legal disabilities, and not to plaintiffs failing to assert a valid cause of action.</p> <p>(2) . An offer to cancel and return promissory notes by parties having no apparent right ro their possession or to cancel them, is of no validity.</p> <p>(3) . From the execution of a contract for the sale of real estate the vendor holds the legal title to the lands as a trustee for the vendee, and the vendor’s benefleial interest in the contract is, by the doctrine of equitable conversion, treated for purposes of descent as personalty and as an asset of the vendor’s estate to be administered by his executor or administrator.</p> <p>(4) . Upon default in the payment ol the purchase money due upon a land contract which by its terms gives an option to the vendor to rescind the contract for such default, the vendor may elect to continue the contract in force and sue for the unpaid purchase money, or to place the vendee in statu quo and avoid the contract. This right of election does not descend to the heirs or devisees of the vendor, but follows the personal estate, and may be exercised by the personal representative.</p> <p>(5) . A petition by the devisees of a deceased vendor, seeking to rescind his written contract for the sale of realty and offering to surrender the notes of the vendee for the purchase price, but failing to show any ownership of the notes or offer to return money paid to the vendor to apply thereon, is defective by reason of such omissions.</p> <p>(6) . A petition by the devisees oí a deceased vendor, seeking the rescission of his contract to sell realty, and recovery of the possession of such realty, is defective for the reason that the beneficial rights under said contract Belong to the decedent’s personal estate and are to be exercised by his personal representative. The devisees have no election to affirm or disaffirm the contract or to recover possession of the land.</p>

<p>(1) . Percolating waters are those which pass through the ground, beneath tne surface of the earth without definite channels, and the same rules of law applicable to such waters govern those streams which have definite channels, but the course of which is unknown and unaseertainable.</p> <p>(2) , Where there is nothing to show that the waters of a spring or well are supplied by any defined flowing stream, the presumption would be that they have their source in the ordinary percolations of water through the soil.</p> <p>(3) . Percolating waters, and those whose sources are unknown, or whose channels are undefined, and whose course is not known or notorious, belong to the realty in which they are found. Such waters may spread themselves in any direction through the earth, and it is therefore impossible to avoid disturbing them, without relinquishing the necessary enjoyment of the land through which they pass, and the law does not therefore forbid their disturbance.</p> <p>(4). The law cannot properly limit the ordinarily absolute dominion of the owner of the soil, in respect to things concealed and hidden in the bowels of the earth, nor recognize the adjoining proprietor as having claims upon or rights in a thing passing under the surface of his neighbor’s land, the existence of which was first revealed by the very act which would constitute the subject matter of his complaint.</p>

<p>On demurrer to the second and third defenses of the answer.</p>

<p>L. commenced his suit in the court of common pleas against G. to recover damages against G. for debauching L.’s wife and alineating her affections; after the beginning of such suit, G. made an assignment for the benefit of his creditors. L. proceeded with his suit and recovered a judgment against G.; afterwards L. probated and presented such judgment to the assingee of G. for allowance and participation in the distribution of the assets of G’s estate, which claim was rejected by the assignee. Held, That L. was, at the time of the assignment of G.», a creditor of G’s and entitled to prove his judgment and share in the distribution so recovered against G’s estate.</p>

<p>(1) . A decedent born in Cincinnati, and residing here from 1843 till 1866, and thereafter living in Paris, France, where he died, but who had returned here on visits, and had left his valuable securities here with a safe deposit company, and who declared in his wifi that he was a citizen of the United States domiciled in Cincinnati, was domiciled here animo et facto.</p> <p>(2) . Where the witnesses to a will saw him subscribe his name thereto, it is sufficient, under section 5916, notwithstanding they did not hear him acknowledge the instrument.</p> <p>(3) . In the divergence of authority as to the validity of a will which makes no disposition of property, the liberal rule should be adopted, so far as admission to probate is concerned, where an intention by the decedent to make a disposition of his property clearly appears.</p>

<p>(1) . The tax-payer’s action,authorized by sections 1777, and 1778, of the Revised Statutes, can not be prosecuted to gratify caprice or the secret purpose of the plaintiff or of third persons.</p> <p>(2) . The plaintiff is not obliged to show a substantial injury; proof of a meditated illegal act is enough.</p> <p>(3) . The objects of these sections of the statutes defined.</p> <p>(4) . The contract awarded to a foreign corporation by the director of public improvements of Columbus is not invalidated by reason of a non-compliance by the corporation with the requirements of the statute passed April 25, 1893, entitled “an act to regulate foreign stock corporations, other than money, by requiring such corporations to procure a certificate from the secretary of state, etc.”</p> <p>(5) . The federal plan of municipal government in force in Columbus makes a definite separation of the legislative and executive powers of government.</p> <p>(6) . Under that plan the city council can not lawfully make contracts; it only authorizes said council to carry them out by appropriating the money.</p> <p>(7) . The statute which created this plan does not enumerate all of the powers and duties of,said director; many of them are the same as those which are vested in, and required of trustees of water-works, trustees of cometerles, park commissioners and civil enigneers in cities of the first grade of the second class.</p> <p>(8) . In determining which of several bidders for furnishing pumping machinery was the lowest bidder, within the meaning of section 2419, of the Revised Statutes, or which was the lowest responsible'bidder within the meaning of the charter law of said city, it was competent for the director to exercise discretion.</p> <p>(9) . The adoption of a resolution by the said council, such as is required by section 2304, of the Revised Statutes, was not necessary to validate the contract in controversy- in this case.</p> <p>(10) . The so called Burns law has no application to the said contract.</p>

<p>Contracts for the construction of new Cincinnati Water Works — Specifications before letting contract, required.</p> <p>(1) . The provisions of the law authorizing the construction of a water-works in Cincinnati, (92 O. L., 606),in which it is provided that contracts can be made only after specifications have been made and advertisement had as to the work to be let, are mandatory, and any contract made in violation of such provisions is null and void.</p> <p>(2) . Where specifications for the grading of certain grounds, roads and certain portions of the Ohio river bank; the revetment of certain slopes and the excavation of a certain well as a part of the construction of the water-works system are made in the alternative form,and the final determination as to what the specifications shall be, is not made until the bids are received and opened, such specifications do not comply with the law, and a contract based upon the same is illegal and void: and no recovery can be had either under the contract or upon a quantum meruit for services rendered or material furnished.</p> <p>(31. Whether a taxpayer may be estopped by delay from asserting the invalidity of such a contract is a question not present in this case for the reason that the facts of the case show deligence in the bringing and the prosecution of the case.</p>

<p>(1) . The bringing an action upon a verbal contract for the sale of land, is prohibited by the statute of frauds; but the parties are permitted, as between themselves, to make and perform such contracts, and each is protected in his right to property so acquired — parties entering upon the performance of such a contract, must rely upon the good faith of each other, for its completion. Its complete performance therefore becomes a question of conscience and honor between them.</p> <p>(2) . When charged in the petition that one of the parties refuses to complete such a contract after he has induced the other to so far perform it by such inducement that his refusal, amounts to a breach of faifcn, and operates as a fraud upon the party performing — a court of equity will examine the whole transaction — follow the charge of fraud back of, and through the letter of the statute — ascertain the equities and rights of the parties, and in compliance with its rules, render such a decree as equity and good conscience require.</p> <p>(3) . In such a case, equity bases its jurisdiction, upon the fraud charged, and not upon the verbal contract as a contract.</p> <p>(4) . In an action based upon such a charge, where justice and equity require it, a court of equity will decree specific performance of the verbal contract — not to enforce the contract as a contract, but as affording the only adequate reliet for the fraud.</p> <p>(5) . It is stipulated in the verbal contract in this ease, that the nephew should bo&rd, and care for the uncle and give him a home in the nephew’s family on the farm, during the lii'e of the uncle; there is no stipulation in the contract requiring the nephew to make any improvements on the farm. Held, that in a suit at law, against the uncle for damages for failure to perform the verbal contract, the nephew could recover only the value of the board and home furnished,and services rendered ; that he could not recover for the impro lements he made on the farm ; he is therefore without an adequate remedy at law in this case.</p>

<p>Decision on motion to set aside service.</p>

<p>The plaintiff was the owner and manager of a theatrical company, which was engaged in giving performances of a play entitled “MePadden’s Flats”; and in February, 1P98, he entered into a contract with the defendant, who was the lessee of a theatre, to play the piece at his theatre for the ween beginning November 14, 1898, the defendant to furnish the theatre, well-cleaned, warmed and lighted, and also to furnish ushers, ticket sellers, etc., etc. Tne defendant refused to comply with his terms of the contract, and the plaintiff sought to enjoin the defendant from allowing any other theatrical performance to be given in his theatre during the week beginning Novemher 14th. The contract contained no negative covenant as to cither of the contracting parties.</p> <p>Held: That the injunction sought was for the purpose of indirectly compelling a specific performance of the contract, and that, as the element of mutuality of remedy was lacking, the contract could not be specifically enforced, and the injunction, which was a means to be used to bring about such enforcement, could not be granted.</p>

<p>(1) . Wnen a city treasurer, who is by law the custodian of school funds, deposits them in a bank in a manner not authorized by law, he has broken the contract of his bond to faithfully perform the duties of his office.</p> <p>(2) . As the profits arising from public funds deposited by such treasurer m the method provided by law, inures to the benefit of the city, the interest received by him from such funds illegally deposited is the measure of' his liability upon his bond.</p> <p>(3) . Such treasurer is not a trustee, or ah agent, or a bailee, in the ordinary sense, hut, for the particular functions of his office is invested by the government with a part of its sovereignty, so that when he deposits public money at interest in a bank, it is the same as if the department of the government he represents had made the deficit itself.</p> <p>(4) . The interest of such fund does not, under any circumstances, belong to the treasurer individually; but it is the property of the department of the government to which the fund belongs.</p> <p>(5) . It is against public policy for such treasurer to deposit the public money which comes inco his hands bv virtue of his office, in a bank and appropriate the interest accruing from it to his own use.</p>

<p>(1) . The authority reposed in the county commissioners by section 2858, R. S., to authorize the county treasurer to employ collectors of delinquent taxes upon personal property, permits the treasurer to appoint as many collectors as he sees fit, and a petition to prevent a treasurer from appointing an additional collector therefore does not state facts sufficient to constitute a cause of action.</p> <p>(2) . Whether in case the commissioners have limited the number of collectors to be employed, and the treasurer seeRs to-employ a greater number, the remedy is to enjoin the treasurer from making such additional appointments. — Quaere?</p> <p>(3) . Such an employment of a collector is. an employment by the treasurer, and not by the county commissioners, and the one so-employed is a deputy treasurer.</p> <p>(4) . The employment of a collector by the-treasurer for a period of two years does-not bind the successor of the treasurer-■making the appointment, but the appoint.ment expires necessarily with the power that gave it. The appointee assumes the -peril of the death of the treasurer appointing him,and the law affords him no remedy.</p>

<p>(1) . The right to compensation for services as a deputy collector of taxes is coexistent with the right to hold the position and dependent upon it; with the loss of the position there follows a loss of future compensation.</p> <p>(2) . There is no authority in the Clark law (92 O. L., 50) whereby an honorably discharged Union soldier can compel a public officer, who dismissed him from service and appointed another in his stead without the soldier qualification, to restore him to the place and dismiss his successor.</p>

<p>Christian Science — Does not fall within law regulating medical practice in Ohio—</p> <p>The statute, sec. 4á031, designating the classes of persons who shall be regarded as practising medicine or surgery within the meaning of the act of February 26, 1896 (sec. 4403c), requiring a certificate by the state board of medical registration and examination,.and the recording of the same, before any one shall be permitted to practice medicine or surgery, does not apply to persons “who, for a fee, prescribe, direct, or recommend for the use of any person * * * for the treatment, cure, or relief of any wound, fracture, or bodily injury, infirmity or disease,” a “system known as Christian science.”</p>

<p>Decision on demurrer to amended answer.</p>

<p>When a bank discounts commercial paper held and endorsed by a corporation and passes the proceeds to the credit of tne company; said company leaving for deposit with the bank only the proceeds of such discounted paper, and where it affirmatively appears that the bank discounted such paper solely upon the faith of representations of solvency made by the company endorsing the same, and not upon the faith of the responsibility of the makers thereof, the bank has an equitable right to set off the amounts of such paper as against the deposit sought to be recovered by a receiver appointed for such company, although such paper was not due and payable at the time of the appointment of said receiver, if it appear at the trial that the bank was unable to collect from the makers of the notes because of the insolvency of such makers.</p> <p>In such case the right of set-off arises not from statute, but from the equitable rule of mutual credits.</p>

<p>(1) . Where the proper municipal board declares by ordinance the terms and conditions upon which tne owners of street railway routes may operate over the streets of the city, and the provisions of the ordinance are duly accepted in writing by a street railway company, such ordinance and the acceptance thereof constitute a contract; between the parties. When the provisions of such ordinance are plain and unambiguous, there is no room for a practical construction of the contract by conduct of the parties. Especially has the rule of practical construction no application when the acts or conduct are not those of the parties who made the contract, but are the acts or conduct of other boards and of subsequent officers and agents of the municipality.</p> <p>(2) . Statements rendered by the street railway company to the city showing the amounts due the city for operating under an ordinance and payments made thereon do not constitute an accord and satisfaction between the parties where there has been uo dispute as to the amounts due, and no separate agreement entered into by which the city agreed to take less than the amounts due under the ordinance, and where the sums due were not unliquidated in cnaractor, but were capable of arithmetical calculation.</p> <p>(3) . Where the municipal ordinance under which a street railway company is operating provides that the company “shall pay annually on the 1st of January, in advance, for and upon each car run the sum of $4.00 per lineal foot of every ■such car, inside measurement, and such payment shall b,e a condition precedent to the right to operate the road,” statements rendered and payments made pursuant thereto do not constitute accounts stated and settled, but only a payment on account, since it is impossible to determine in advance the exact amount due the city for the succeeding year. The rule of account stated and settled applies ■only where the parties have settled their accounts upon full view of all the transactions, and has no application where the means of information are peculiarly, if not wholly, within the possession of the party rendering the account.</p>

<p>(1. )A corporation incorporated under the laws of Ohio signing a contract or doing any other act legitimate or proper in itself, to further its manufacturing facilities or to enable it to more readily and to a larger extent dispose of its products, thereby seeking directly to benefit itself by thus contracting or becoming security on a contract,if default should be made, is bound by iijg obligation, and is estopped from setting up the plea of ultra vires.</p> <p>(2). In this case a corporation, incorporated to manufacture and sell sewer pipe, paving hriclr, terra cotta, and other products of earth, minerals and clay, signed as security the bond of a contractor who had been awarded the contract to construct the sewers in the village of. Glen-ville according to plans and specifications adopted by said village. The consideration being that such contractor agreed to buy the sewer pipe, etc., necessary in executing the contract with the village from such corporation. The contractor abandoning the contract, the corporation was sued on its obligation under the contractor’s bond, signed by it, and attempted to set up the defense that its signing such bond was an act ultra vires. Held: The corporation was estopped from setting up this defense, and was liable.</p>

The city of Cincinnati passed the statutory resolution and ordinance for the condemnation of certain real estate, the property óf defendants, for the purpose of extending Middleton avenue. The condemnation ordinance directed the corporation counsel to bring the necessary action for the appropriation of this property. Notice was served upon the defendants as required by law.

<p>(1.) The act of April 5, 1893, creating the board of park commissioners for Cleveland, gives that board exclusive charge, supervision and control of the parks, park entrances and park drive ways,now belonging to such city or in its control and of all such property as may thereafter be acquired for parks and for park entrances and park driveways connecting or leading to and from such parks, etc. The park commissioners passed a resolution whereby they resolved to take charge and control, and improve for the purposes of a park driveway, that portion of Euclid avenue from Brownell street about four miles in length to Wade park Boulevard which leads into Wade park, and the city council by resolution relinquished the control of that portion of Euclid avenue to the board of park commissioners, and the city solicitor instituted proceedings to assess the damages which property owners on that part of Euclid ave would sustain by such change. Held:</p> <p>Under the powers conferred by the act on the park commissioners, they are authorized to take that part of Euclid avenue for such purposes, and the legislature had power to confer such power.</p> <p>(2) . The resolution of the city council is not of such character as would make it necessary that it should be submitted to the mayor for approval under the statute.</p> <p>(3) . This change of the control of the avenue involves such changes in the rights of the property owners in the avenue as entitles them to damages, to be ascertained by a jury.</p>

<p>The act of the general assembly of April 25th, 1898, entitled an act to regulate and control primary elections in cities of the first grade of the first class, and in any county containing such city, and knowM as the Kemper Primary Law, is repugnant to sec. 2, art. 2, of the constitution, which provides that all laws of a general nature shall have uniform operation throughout the state.</p>

<p>(1) . Section 3643b providing that “where arbitrators and umpires are selected to ascertain a loss under any insurance policy issued on property in this state, said arbitrators and umpires shall be residents of the county in which such loss has occurred at least one year prior to the said loss,” is constitutional.</p> <p>(2) . The testimony of an agent of the insurance company that one of the appraisers upon coming into the insurance company's office submitted nis business card, which gave Chicago as his place of business,, and added that he resided in Chicago,* was a declaration by the agent of the statement upon the card, and his oral remark that he lived in Chicago was admissible to prove bis intention of making Chicago his place of residence.</p> <p>(3) . Where one parry to an attempted arbitration offers and the other party refuses to submit the loss, the court has the right +o determine the loss and assess the damages.</p>

<p>(1) . Section 2261b, Revised Statutes, providing a method of making assessments “by the abutting foot of the property bounding and abutting the improvement”, and limited in its operation to cities of the first and third grade of the first class, and cities of the second class third grade is valid and does not conflict with sec. 26, art. 2, of the constitution. Cincinnati v. Connor, 55 Ohio St., p, 82.</p> <p>(2) . The fact that the street improved for which the assessment is levied, is of varying widths, does not require that the assessment shall be graduated accordingly, but said assessment may nevertheless be uniform.</p>

<p>By section 1765a, of the Revised Statutes, it is provided that in cities of the first grade and first class the auditor shall at the end of each fiscal year or oftener if required by the board of legislation, and also upon the death, resignation, removal or expiration of the term of any officer of the city audit the accounts of such officer before making the final statement of account, giving notice of such audit to the officer and his sureties: and if such officers shall be found to be indebted to such city, a statement of the account showing the amount of the indebtedness shall be at once filed with the clerk of the superior court of such city, and such account shall be placed by such clerk upon the docket of said court as a pending action, summons to be served as in other civil actions. Either such city or any person answering may demand a jury, and the court shall proceed to judgment therein as in any other civil action. From the time of the filing of such account, the amount thereof shall be a lien upon all the real estate of the officer thereby shown to be indebted to such city and upon that of his sureties. Held:</p> <p>1. That even if the provision which makes the report of the auditor a lien upon the property of the officer and his sureties to the amount that the officer is reported to be in default is unconstitutional (a question upon which no opinion is expressed), yet such infirmity in the act would not be sufficient to destroy the remainder of it;</p> <p>2. Such act does not conter upon the auditor the exercise of judicial power.</p> <p>3. The act is not unconstitutional because it fails to require the auditor to verify his report before filing it.</p>

<p>The proper intent and meaning of sections 4029-8, Giauque’s R. S., in Truancy Laws, as amended vol." 87, Ohio Laws, page 144; now section 4022-7, Bates R. S. was to secure the trial of parents for failure to cause their children to attend school, within the bounds of the school district where the offense occurred.</p>

<p>On Error to Special Term.</p>

<p>A trustee of the mortgage and bonds of a corporation has no legal capacity as such after foreclosure and sale of the mortgaged property to maintain an action on behalf of the bondholders for a personal judgment against one who had promisedjthe corporation to assume the. bonds.</p>

<p>A conveyance of real estate made by an insolvent debtor to a trustee for the purpose of having a conveyance made to the wife of the grantor in satisfaction of a bona fide indebtedness from the husband to the wife, must enure to the benefit of all creditors under section 6313, R. S. Ohio, which section provides as follows: “Ail assignments in trust to a trustee or trustees, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall enure to the equal benefit of all creditors in proportion to the amount of their respective claims.”</p>

<p>Section 1005, Revised Statutes of Ohio, requiring detailed statements of moneys needed for county purposes to be furnished by the county auditor to the county commissioners, and section 1007, Revised Statutes, requiring detailed appropriations to be made by the county commissioners, are mandatory ; and expenditures intended to be made in the absence of’a compliance with said sections will be enjoined.</p>

<p>(1) . County commissioners have the authority to adjudicate claims presented to them by county auditors for services rendered by them, and to determine the amount due thereon, and to allow and order said amount to be paid from the county treasury,in those cases where the law recognizes the liability of the county for some amount on account of such services. And in such cases, the determination and allowance by the commissioners are conclusive upon the county, unless impeached for fraud, or manifest mistake.</p> <p>(2) . In those cases where the law has created no liability upon the county for any sum for the services for which the auditor makes a claim, the allowance thereof by the commissioners is of no effect in law, and any money paid from the county treasury on such a claim may be recovered back.</p> <p>(3) . In an action upon the bond of a county auditor to recover back sums of money received by him from the county treasury for official fees, and which were paid to and received by him without authority of law, it is not sufficient simply to aver that the money sued for was illegally drawn by the auditor.</p> <p>Such averment tenders no issuable fact, but is a mere conclusion from facts.</p>

<p>The act authorizing the construction of new water-works in Cincinnati, provides that “the commissioners shall, before entering into any contracts, cause plans and specifications, detailed drawings oí forms of bids to be prepared, Hold, that under this provision the said commissioners are the judges of the sufficiency of such plans. However meager such plans, specifications and drawings may appear to one unaccustomed to such matters, if they convey to the bidder sufficient knowledge upon which to base a definite bid for the work to be done, then the terms of the statute would be complied with.</p> <p>It is no objection to the contract that the specifications of the commissioners provide for, permit and invite alternative bidding.</p> <p>The mere fact that each bidder was to submit a full detailed plan, though bidding according to the city’s plan and specifications, did not render bids non-competitive, since the detailed plans furnished by bidders were to advise the city of the interpretation of its own plans and specifications by the bidders, and their method of execution.</p> <p>The fact that certain matters are left to the determination of the engineers is not a delegation of power by the water-works commissioners to such engineers.</p> <p>It is not an objection il a bidder, contracting to do the work specified for a certain sum, which sum is the lowest and best of all the bidders, - tenders to the city extra work not included in the bid, and for which the city did not advertise or submit plans and specifications, but which he offers to do for nothing.</p> <p>Modifications of a contract made as provided by law, and not susbtantial'ly affecting the general purpose and operation of the old contract, can be made and will be lawful.</p> <p>The legislature did not intend that, the commissioners should be individually experienced in every detail of every department of the work, but only that the commissioners should exercise the ordinary good business sense of practical men. Therefore, notwithstanding that the language of the statute is in its nature mandatory, nevertheless there is vested in the commissioners a certain discretion as to carrying out of the plans proposed, j providing that discretion is not abused, and that they act in good faith.</p>

<p>An order of the probate court removing an executor or administrator, is an order affecting a substantial right made in a special proceeding and may be reviewed on error on application to the court of common pleas.</p>

<p> Attachment on statutory liability of nonresident stockholder in insolvent corporation— </p> <p>(1). By the word “contract”, as used in the attachment law of Ohio, sec. 5521, R. S., is meant the general understanding and definition of contract in law, which is an agreement between two or more - parties to do or not to do a certain thing, and the word cannot be changed to include liabilities merely in the nature of' contracts.- It therefore does not include a stockholder’s statutory liability for tne debts of an insolvent corporation.</p> <p>12). An attachment can not be issued, on the statutory liability of anon-resident, stockholder in an insolvent corporation.</p> <p>(See contra, Northern Nat’l. Bank v. Maumee Rolling Mill Co., 2 Nisi Prius, 260.)</p>

<p>Osman Sellew in 1886 conveyed to the Vine Street Congregational Church a house and lot on the following condition: “In case it shall be deemed best at any time in future to sell said premises, the proceeds arising from such sale shall not be used for the purpose of liquidating the debts of the church nor for the construction, repair or remodeling the present or any other church edifice; but the same shall be either re-invested in other property or securities, the income therefrom to be used for the benefit of said church, as the trustees thereof may think best. It being the purpose of this agreement to secure and preserve the principal of this' gift intact and to provide that the income only arising from the same may and shall be used for the said church,and on failure of the trustees of said church to faithfully carry out and abide by the agreement above, the proceeds arising from the sale-of said premiers without interest and less any losses that may have occurred from poor investments shall revert to the-grantor or his legal heirs.”</p> <p>Subsequently the trustees of the church leased the property with the privilege of purchase for $13,000 payable in annual installments of not less than $500. After two annual payments of $500 each the lessee abandoned the lease and conveyed her interest in the same to the lessor.</p> <p>Held: That the $1,000 paid as above stated was not income, and therefore could not be expended by the trustees; but was principal, and became a part of the corpus of the trust.</p>

<p>(1). If the plaintiff in an action for damages for breach of covenant in a deed, sets out in his petition the covenant and its breach, he would be entitled to at least nominal damages without alleging special damages, and therefore, that objection would be of no avail on demurrer.</p> <p>(2). If the covenantor is not in actual possession, or seized in fact at the time of the conveyance, it is not necessary to allege and prove an-eviction by a paramount title, to entitle, the plaintiff to recover.</p>

<p>To convict a prisoner in the Ohio Penitentiary who killed one of the guards in his attempt to escape, of murder in the first degree therefor, premeditation and deliberation in the killing must be shown beyond a reasonable doubt.</p> <p>Indictment for murder in first degree under section 6808, Revised Statutes, committed while attempting to escape from the Ohio Penitentiary.</p>

<p>Turnpikes — Measure of damages—</p> <p>Mainly there are two methods of fixing compensation to be awarded as damage for the appropriation of turnpike property while such property is being actively operated.</p> <p>First: By the “direct method” of determining in detail the present cash value, tangible and intangible, of the property appropriated according to its best use and adaptability.</p> <p>Secondly: By the “capitalization method” of determining the rate of per cent, at which the probable future net annual income of the strip of road appropriated, should be capitalized, and then ascertaining therefrom, the capital as the basis of the value of all the property taken.</p>

<p>An assignee for the benefit of creditors having incurred a personal liability for rent and taxes by accepting and using a leasehold as part of the assigned estate, cannot relieve himself from said liability by mere abandonment of the premises without surrender to the lessor, or transfer of title or restoration to the assignor.</p>

<p>Error tc the Probate Court of Hamilton county.</p>

<p>(1) . A lease of a hotel building for five years, not attested, acknowledged and recorded as provided by sec. 4106, R. S., is void as such, and a lien on the goods placed in such building by the lessee reserved in such lease in favor of the lessor for the rent, in therefore also void.</p> <p>(2) . The verifying of such instrument and filing same with the recorder as a chattel mortgage, did not operate as a lien on the goods as against susbequent chattel mortgages.</p> <p>(3) . The clause in the lease attempting to create a lien on the goods did not operate as a chattel mortgage nor as a conveyance by way of mortgage of the property, and was not within the provisions of the statute regulating chattel mortgages and bills of sale.</p>

<p>It is not necessary in a prosecution for shooting or hunting on the lands of another to allege the character of the estate held in the land by the “owner,” nor to describe the lands with the accuracy required where the proceeding is directed against the property in rem rather than against an act or occurrence.</p>

<p>Heard on demurrer to the answer.</p>

<p>(1) . A contract by which a person is insured against damage or loss of a building by fire, does not adhere to the building or its title, so as to become real estate, and pass with the title by a convey■ance. The liability created by such a contract, is conditioned solely, upon loss or damage by fire to the building'. That liability is personal, between the parties to the contract, and is separate and distinct from the title to the building, to which it is only an incident.</p> <p>(2) . If the only interest of the insured in a building is a life estate, and the intent of the insured is not defined in the policy, but it is stipulated therein, that the insurer will not pay anything, in excess of the value of the interest, of the insured in the building, the life estate is the only interest insured.</p> <p>(3) . If the insurer receives a premium upon the whole amount mentioned in the policy by which a life estate is insured and that amount is in excess of the value of the life estate, those owning the estate in remainder will-have no claim upon such excess of insurance, in the event of a total loss of the building, though the whole amount mentioned in the policy is paid to the owner of the life estate by the insurer and such excess equals or exceeds the cash value of an estate in fee,in the building.</p> <p>(4) . In this case there was no fraud and no change reducing the interest of the insured in the building; or increasing the risk — the insurance company received no premium on the $700 insurance mentioned in the policy, the building insured was totally destroyed by fire, while the policy was in force. Held, that the liability of the insurance company was fixed by sec. 3643, Revised Statutes, that the company was required by its provisions to pay to Sybil Winehel, the insured, the $700 inrurance mentioned in the policy, though that amount was largely in excess of the value of her life estate.</p>

<p>Negligence--When it can be successfully-invoked by a licensee—</p>

<p>So much of a contract as is purely ex-ecutory, between a corporation and one of its directors, in the making of which said director participated as a member of the board, is voidable at the option of the corporation.</p>

<p>There is no exception, growing out of any peculiarity in the character of the expenditure, to the application of section 2702, R. S., requiring a certificate that money appropriated by a municipal corporation is in its treasury to the credit of the proper fund and unappropriated for any other purpose.</p>

<p>Errdr to the Police Court of Cincinnati.</p>

<p>Divorce — May be set aside- where court never obtained jurisdiction — -</p> <p>Where a court has jurisdiction of the parties and of the subject matter, a decree for divorce can not be opened, however fraudulent the conduct of the opposite paivy might be in its procurement. But where a party fraudulently institutes a suit, for divorce in the name of the other party as plaintiff therein, without knowledge or authority of such other party, there was in fact no suit, and the court never obtained jurisdiction thereof; and a decree for divorce rendered in such pretended suit may be set aside in an action for that purpose.^</p> <p>Held further that the delay of two years in bringing such action to set aside the decree of divorce, after the other party had ascertained the fact of such decree having been rendered, though unexplained, is not such laches as will prevent the plaintiff from asserting her rights.</p>

<p>A sale alleged to have been made by one party to another of a certain quantity of flax seed — Suit brought against the purchaser by another not a party to the contract of sale claiming damages for its breach on the following allegation as to the contract, “that said flax should be 'paid for by the defendant by permitting the plaintiffs to draw a draft on the defendant”: Held that such allegation not sufficient to sustain a cause of action in favor of such plaintiffs for the reasons:</p> <p>(1). It does not show an original contract on the part of the defendant creating any obligation to such plaintiffs enforceable in their own right.</p> <p>(2) . It does not show any novation by-which such obligation was thereafter assumed.</p> <p>(3) . There is no allegation of anfassignment.</p> <p>(4) . In such case the obligation, if any, would be to the original party, and defendant could not be liable at the same time to another.</p>

<p>(1). Rebates can not be regarded as partnership profits; and were such not the case, the presumption of a partnership arising from sharing in profits is rebutted where there is no common ownership of property and no mutual agency.</p> <p>{2). It is beyond the power of corporations to enter into partnerships with individuals or other corporations.</p>

<p>H). A party transferring a promissory ■note and endorsing the same without recourse, warrants the genuineness of the signature to the note.</p> <p>(2) . Where the note purports to be signed by two joint makers, and one of the signatures proved to be a forgery and the other signer was insolvent, the endorser, although his endorsement made without recourse, was still liable by virtue of his implied warranty of the genuineness of the signatures.</p> <p>(3) . Where collateral security was transferred with the note, it is not necessary, in order to enforce this liability, that the holder should surrender such collateral ■or otherwise rescind. He might enforce ■both until full payment of the note.</p>

<p>The condition of insolvency of a building and loan association is incompatible with the right of any member to withdraw his contribution to the general fund, until the proper proportion of the losses has been ascertained and adjusted.</p>

<p> Motion to retax costs of sheriffs on order of sale— </p> <p>(1) . Appraisers’ fees returned at $1.00 each : Held, that statute fixes fee at 50 cts. per day.</p> <p>(2) . Swearing appraisers 40 cts. each: Held, no fee provided by statute.</p> <p>(3) . Revenue stamp required by act of congress: Held, a proper charge.</p> <p>(4) . One per cent, poundage on amount of sale: Held, that this is provided for by sec. b 1230 as amended April 25, 188.</p>

<p>(1). Where a street railway company, having accepted an ordinance from municipal authorities providing the terms and conditions under which it may construct and operate a line of street railway, including all necessary switches, turnouts, etc., and where acting under such ordinance, the company proposes to construct as part of its road, a switch necessary to the reasonable and proper operation of its road, and the city authorities, without legal proceeding declaring the switch to be unnecessary, without legal steps for a total or pro tan-to forfeiture of the franchise granted, retused to permit the railway company to build the switch by arresting the working men employed therefor, and defend an' application for an injunction upon tbe grounds that the switch is not necessary, and that the plaintiff has not complied with the terms of the franchise. Held: First, such action on the part of the municipality in thus constituting its. officers judges of law and fact and determining the necessity of the switch, and in enforcing its decree by force, is clearly an unwarranted interference with the contract Tights of the street railway company, and such action is a trespass upon its property and an impairment of its franchise, for which the law furnishes no adequate remedy, and the company is entitled to an injunction restraining the municipal authorities from interfering with the laying of the switch.</p> <p>Second, it is no reason for refusing such relief that the railway company has, not complied with the terms of the. franchise. If the street railway company fails to perform its contract obligation, the city must seek its legal remedy. It can not be permitted to take the law into its own hands.</p> <p>Third, the court finds that the length of the switch as proposed to be constructed by the Street Ry. Go. is unreasonable, and reduces theolength to what the court considers reasonable dimensions.</p>

<p>Action for the balance of the unpaid purchase money upon a lumber dryer. Defense that dryer was sold with a warranty of fitness; that there was a breach, a tender back, and a rescission. Counter-claim for part of purchase price paid and for damages in loss of lumber ruined in use of dryer. Evidence showed sale was by written contract in which vendor agreed to construct and furnish a dryer made according to vendors’ patents of given size; that contract contained no express warranty; that vendor’s agent before the signing of the contract oy his principal had made verbal representations as to excellence of vendor’s dryers without fraud; that vendee had an opportunity to test operation of vendor’s dryer; that dryer was constructed' according to contract; that it did not dry defendants’ lumber and injured a considerable quantity.</p> <p>Held 1. Verbal representations before-the signing of the contract are inadmissible and incompetent to engraft upon the-contract an express warranty.</p> <p>2. Such representations are incompetent to raise the implication of a warranty.</p> <p>3. No rescission in equity or law can be had for verbal misrepresentations without fraud where the contract has been executed and it is impossible, as in the present case, to restore the parties to the status quo ante.</p> <p>4. No implied warranty arises in the sale of a definitely described well ascertained article of particular construction that it is fit lor the purpose for which vendee buys it, even if such purpose is known to vendor.</p>

<p>(1). The reversal by the supreme court of a judgment for a less amount in the case at bar held to be conclusive that the contract sued on has not been set aside, modified or reformed, and parol evidence as to a collateral verbal contract is therefore inadmissible.</p>

<p>Opinion of court on motion of defendant to dismiss the cause.</p>

<p>Receivers of corporations are not the representatives of the corporation alone, but are also representatives of its creditors, subject always to the order and direction of the court that appointed them. Their powers under the orders of the court are mors extensive than those of the corporation itself. and they are not protected by sections 5026 and 5027, Revised Statutes, from service m actions brought in other counties than that of their domicile but they maybe served with process from another county under section 5038, R. S., where the action is for a joint liability and is rightfully brought in the county wherein one of the defendants resides.</p>

<p>Adverse possession of public streets and alleys — Injunction by abutting owners—</p> <p>A plat regularly laid out with ' streets and alleys iu 1874 — fence built across the same inclosing part of it in connection with a manufactory in 1887 under agreement with the owner of two abutting lots, by which another outlet from the alley to street was furnished. In 1892 the lots sold to plaintiff, who took no action to prevent the obstruction until 1897, when the owners of the manufactory being engaged in erecting an addition encroaching upon the alley, the plaintiff commenced suit to enjoin its completion and maintenance, Held:</p> <p>(1) . An abutting owner upon a public street or highway in bringing an action as such to enjoin the obstruction of the highway, must rely upon his private right to sustain his action.</p> <p>(2) . The statute of limitations may be relied upon by a defendant as a defense in such a case, where there has been 21 years exclusive adverse possession of the premises in question.</p> <p>(3) . Where there ha,d been such adverse possession for a period less than 21 years, still the right to maintain injunction might be defeated by such continued possession acquiesced in for a less time than 21 years.</p> <p>(4) . Where a party seeks to enjoin the erection or maintenance of a building which it is claimed to interfere with his rights, the utmost diligence and promptness is required in seeking such relief.</p>

<p>Heard on motion to set off judgments.</p>

<p>A corporation with the consent of one-who Was a stockholder in the same made his name a part of its corporate name. Subsequently such person having sold his shares of stock in the corporation became a member of another corporation engaged in the same business as the former corporation. The new corporation also adopted the name of such person as part of its corporate name. The names of the two cor • porations were not entirely identical, but were likely to be mistaken for one another by third persons.</p> <p>Held, that the corporation which first adopted the name of Such private nerson as a part of its corporate name was entitled to enjoin the latter corporation from using the name of such person either as a part of its corporate name, or oti erwise in such a way as to mislead persons desiring to deal with the former corporation into the belief that they were dealing with the latter one.</p>

<p>Settlement of insolvent corporation — Exceptions to report to referee — Claims of employes—</p> <p>(1.) Employe, by excepting to report of referee allowing his claim as a general creditor, can not, without motion for new trial before the referee or bill of exceptions, raise the question as to his right to priority under «the statute, for services performed before the appointment of receiver.</p> <p>(2.) Such employe might, however, be allowed to come in as party to action brought to enforce stockholders, and there litigate his right of priority.</p> <p>(3.) When so made parties, the following claims allowed priority under the statute: (a) Amount due bookkeeper; (6) balance due traveling salesmen.</p> <p>(4.) But the superintendent who acts for the principal, having supervision and control of an important branch of its business with power to hire and discharge employes, is not entitled to preference under the statute.</p>

<p>(1.) The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of property and civil rights. It has no jurisdiction to enjoin the officers or agents of the executive or administrative department of the government from the performance of some duty ordinarily belonging to such department for the protection of á purely political right.</p> <p>(2.) The right of one seeking to be elected a delegate to a convention of a political party is a political right only; therefore an injunction restraining the officers of election from counting certain ballots cast at the election for delegates to such convention is void for want of jurisdiction, and the parties enjoined are not punishable for contempt for violating said order.</p> <p>(3.) If illegal ballots are voted and counted for delegates to a convention contrary to the provisions of sec. 2918, Revised Statutes, the rights of the complaining parties must be enforced by appeals to the convention', or the offending parties may be punished criminally, pursuant to secs. 7043, 7057, 7058, Revised Statutes.</p> <p>(4.) Political parties, being voluntary associations, the conventions of such parties are necessarily the. sole judges of the elections, returns and qualifications of their member, and courts of equity can not restrain the members of such conventions or the members of the committees on credentials from arbitrarily seating certain delegates therein.</p>

Heard on application for a perpetual injunction against the collection of the assessment for the improvement of Madison street, from Hammcndto Corry. One of the lots abutting upon the improvement involved in this, case belonged to the estate of John H. Lindemann, deceased, who left a widow' and children, all of whom at the time of the signing cf the petition for the improvement, had attained their majority.

<p>A “rebuilding- clause” in a policy of insurance is inconsistent with the provision in section 3043, that the insured, in case of total loss, shall be paid the full amount mentioned in the policy upon which the company has received premiums; and the defense that the insured refused to permit the company to rebuild can not be interposed in a suit for recovery on the policy.</p>

<p>Error to the Probate Court, Darke County.</p> <p>(Affirmed by Circuit Court, May Term, 1899.)</p>

<p>(1) . An unincorporated joint stock company with transferable shares, formed to purchase and improve a certain tract of land by making contracts which involve a jiont name and fund, incurring debts, subdividing and selling lots and dividing profits, and which is managed by trustees subject to the shareholers, is a partnership.</p> <p>(2) . Every person appearing on the books to be an absonte owner of a share is liable to those who wore creditors during such ownership, even though be had no beneficial interest in the share, except that, if the share was taken in his name without his knowledge or consent or subsequent acquiesence, he is not liable.</p> <p>(3) . One who, as the stock books affirmatively show, holds his shares merely as trustee or pledgee, is not liable. Nor is a pledgee liable who does not take a transfer on the corporation books; nor, if he has a transfer made to some third person or employe to hold for him, though such person would be liable.</p> <p>(i). Transfer of his shares to another does not release a member from existing liabilities unless creditors consent, but does release him from future liabilities. Yet his assignee of the shares assumes the antecedent liaiblities oí the assignor who thereafter is only secondarily Habile.</p> <p>(5). One held liable because appearing on the books as owner of a share can require the real owner to reimburse him for losses.</p> <p>(tí). A national bank becoming absolute owner of a share for a debt can not escape the liability of a shareholder on the doc trine that its ownership is ultra vires.</p>

<p>(1) . There is no such thing in law as a vendor’s lien relating to personal property.</p> <p>(2) . Where a machine is sold to be paid for when it was set up and had shown its capacity to do the work intended, the taking of a chattel mortgage for the purchase price after the machine has been tested and found satisfactory, is not taking security for a pre-existing debt within the meaning of sec. 6355, or 3206a, ft. S., but part of the original contract of purchase.</p> <p>(31- Such mortgage is a superior lien to the claims of the operatives of the insolvent mortgagor to preference under secs. 6355 & 3206a, R. S.</p> <p>Z (I). Fees for counsel employed by assignee for benefit of creditors — What to be taken into consideration 'n allowing same.</p>

<p>Label — Trade-mark—</p> <p>(1) . Any imitation which may or can produce upOD the mind of the purchaser of ordinary caution the impression and belief that the imitating label is that of a trademark owner, with whose goods he is familiar, will constitute an infringement.</p> <p>(2) . As labels are arbitrarily adopted for the sole purpose of indicating origin or ownership only, the rule is more strictly followed and less latitude allowed to imitations.</p>

<p>Charged with murder in the first degree.</p>

<p>Under the provisions of sec. 3988, E. S., where a Board of Education has, in good faith, exercised its judgment respecting the responsibility of bidders, mandamus will not lie to compel it to change its decision.</p>

<p>The Board of County Commissioners in a proceeding under the ditch laws, for the improvement of a river, have no authority to change the termini designated in the petition for such improvement.</p>

<p>Heard on motion to dismiss the action and quash the process of attachment and garnishment</p>

<p>(1) . The act of April 27, 1896, requiring that owners of dogs in cities of the first class, first grade, shall pay a license fee of $2.09 for each dog, or if not paid, that the dog shall be disposed of by the Cincinnati Humane Society, such law to be enforced by such society, is an act of general nature inasmuch as dogs are found in all parts of the state, and being made applicable to Cincinnati only, is therefore unconstitutional for lack of uniformity of operation.</p> <p>(2) . In Oluo it is well settled that dogs are animals of value and therefore property; and inasmuch as the act in question provides for the taking of these animals without due process of law, it is unconstitutional on this ground also.</p>

<p>Prosecution for Homicide — Murder—Definition of degrees — Murder in committing robbery — Confessions, Admissibility of—</p> <p> Indictment for murder. </p>

<p>(l).On the23rd day o* February, 1898, the council of the city of Elyria, Ohio, (a city of the fourth grade, second class; declared by resolution the necessity of issuing and 'selling the bonds of said city in tbe sum of $250.000.00 for the purpose of erecting water works in said city, and authorizing the submission of the question of issuing and selling said bonds to a vote of the electors of said city at a general election to beheld April 4tb, 1898, and directed the mayor to issue his proclamation, giving notice of said election. At the election held upon said date more than two-thirds of the electors voting, voted in favor of the issuing of said bonds.</p> <p>(2). On the 5th day of March, 1898, four days before the expiration of the ten days after the legal publication of said resolution, the mayor issued his proclamation notifying the electors of said election.</p> <p>(3.) On the 24th day of May, 1898, and before any proceedings were begun to issue said bonds or to construct said waterworks, the council of said city passed _ a resolution, declaring the necessity to issue and sell the bonds of said city in the sum of $45,000.00 for the purpose of purchasing water-worKS already existing iu said city, and authorizing the submissibn of that question to the electors at a special election to be held on the 27th day of J une, 1898.</p> <p>(4) . Thereafter said election was duly held and more than two-thirds of the votes cast thereat were in favor of the issuing of said bonds and the purchase of said water-works. In pursuance of this vote said bonds were issued and the water-works plant transferred to the city.</p> <p>(5) . The resolution of February 23rd, 1898, as well as the resolution of May 24th, 1898, declared the object of the issuing of bonds to be “to supply the city and its inhabitants with water”'</p> <p>(6) . After the passage of the resolution of May 24th, 1898, and the proceedings thereunder, the council of said city advertised the bonds authorized by the resoluton of February 23d, 1898, and the proceedings thereunder for sale, and threatened to issue and sell the same.</p> <p>Held: First, the proceedings under the resolution of February 23rd, 1898, subsequent to the passage of said resolution were void for the reason that no legal notice was given of the holding of the election authorized by said resolution.</p> <p>Second, tbe resolution of May 24th, 1898, and the proceedings thereunder operated and revoked any authority conferred by the resolution of February 23rd, 1898, and the proceedings thereunder.</p>

<p>Where a father holds out his son as his partner, doing business under the firm name of D. & Son, while in fact all the property of such firm belongs to the father, and the son had no interest therein, and afterwards the father makes an individual assignment for the benefit of his creditors, transferring to his assignee all the apparent property of the firm, such assignment is not void, but the property will be administered by the as signee as partnership property under the jurisdiction of the probate court; and a creditor of the alleged firm can not commence an action in the common pleas to subject a portion of the assets in the hands of the assignee to the payment of his claim on the ground that such assignee is wrongfully in possession of the partnership property.</p>

<p>Contract by Board — Amendment of Bid— Illegality of Contract—</p> <p>1. Board required to let to lowest bidder, and no right to allow bid to be amended so as to increase the amount of the original bid—</p> <p>2. Contract made for amount larger than original bid is void—</p> <p>3. Contractor cannot recover either the contract price or on quantum meruit although the work done and accepted by the board—</p>

<p>(1.) An injunction will be refused and the parties left as thevare until the legal right ean be determined at ¡aw, where it appears that greater danger is likely to result from granting than from withholding the relief, or where the inconvenience seems to be equally divided as between the parties. .</p> <p> Water-courses defined— </p> <p>(2.) A water-courso is a stream of water usually flowing in a definite channel having a bed and sides or banks, and discharging itself into some other stream or body of water. The flow of water need not be constant, but must be something more than a mere surface drainage occasioned by extraordinary causes. There must be substantial indications of the existence of a stream which is ordinarily a moving body of water.</p> <p>(3.) In the absence of express contract and positive legislation as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing or filtrating through the earth.</p> <p>(4.) The rule of law in regard to watercourses and the rights, duties and obligations of riparian proprietors, depend very much upon circumstance. The measure of right in regard to streams and brooks in the country, in farming communities and where the owners are engaged in agricultural pursuits, or the raising of stock, can hardly be taken as the measure of right, duty and obligation In urban communities and upon the out-skirts of a city.</p>

<p>Where a tax payer has first applied to the corporation counsel to briug the suit, and upon his refusal brings suit to enjoin the city to prevent it from allowing the use of its streets to a company for certain purposes, he may join such company as defendant with the city asking an injunction against such company from using the streets for such purposes. This would not be joining separate causes of action against different defendants, and it would not be necessary to proceed by quo warranto to test such company’s right to the use of its franchise.</p> <p>There is no authority in our statutes for a city to grant by ordinance to a company the right to use the streets for laying pneumatic tubes therein for the purpose of carrying packages by means of compressed air and for supplying compressed air. Such use of the streets is not implied in by sec. 3471 Rev. Stat. authorizing cities to grant the use of its streets to companies for the purpose of supplying the public with electric light and power or automatic package carrier, nor in sec. 2651-17, sec. 1, authorizing municipal corporations to grant the use of its streets, etc., to lay pipes and drains to be used for the purpose of supplying its inhabitants with heat and power.</p> <p>An ordinance is void as beyond the power of a city which in its terms grants to a company the use of the streets etc., to lay pneumatic tubes for an undetermined period of time without reserving in the city the privilege of regulating charges thereunder from time to time, and in failing to fix.a maximum limit of charges, and which fails to prescribe the number, size, dimensions or material of the conduits or pipes to be laid, and the manner in which they shall be laid, or the depth under the surface of the streets, and which is exclusive.</p>

<p>(1). The Brecksville board improvement — Classification of excavations— Specifications— “Earth”, “hard pan”, “loose rock” and “solid rock” — Definition of terms — Held, that the purpose of these various subdivisions was to group, under each subdivision, such material as w^uld cost about the same for their removal, so that, under the head of earth, would be included those things which would cost about the same as earth, under the head hard-pan should be included such materials as would cost about the same for their removal, etc.</p> <p>(2). Where public officers, as the county commissioners, acting in a representative capacity for the taxpayers, are mislead or about to be mislead and unlawfully to pay out the money of the taxpayers, or where the commissioners of the county have employed an engineer and clothed him with all the power possible for them to confer upon him, and made him the arbiter for all questions that they have the right to make him the arbiter of, if he makes a gross mistake or is mislead so far that he makes an estimate that is grossly unjust to the county and a wrong to the taxpayers thereof, a taxpayer may interfere and by action restrain the misapplication of public funds,</p>

<p>1. In the absence of a special agreement to the contrary, an order of distribution should provide for the payment of all taxes, penalties and interest due on the property sold, and also for all assessments including the present value of those not yet matured.</p> <p>2. A receiver is liable for taxes on personal property in his hands.</p>

<p>(1.) The normal school of Cleveland, maintained by the board of education of that city,forms a part of its public school system. The board has therefore no authority to exclude a pupil from the normal school on the ground that they give no promise of becoming fit for teaching, nor on any ground except in accordance with the provisions of sec. 4014, R. S.</p> <p>(2). Where the school authorities have-, without objection, for nearly a quarter of a century admitted the young women graduates of the high school, regardless of age, and had admitted plaintiff, knowing she would be 21 years of age before the first year’s work in the normal school was finished, they can not afterwards deny such pupil’s right to attend the normal school on the ground that she is over 21 years of age.</p>

<p>(1) . Where the city of Cincinnati entered into a contract with the Edison Elictric Light Co. for lighting the city with electricity, and the company accordingly lighted the first lighting district, but when ready to light the next district delayed doing so by reason of certain questions being submitted to arbitration as the contract provided, and by ieason of a suit brought against it to determine the validity of the contract, such delay is not unreasonable, and where as soon as notified by the city authorities, the company undertook to perform its part of the contract, the city can not then rescind the contract on the ground of such delay when no objection thereto had been made by the city before. ,</p> <p>(2) . Where a party has a right to rescind a contract, he must exercise the right within a reasonable time, and not wait until a recision will work a great injury to the opposite party. If he deals with the other party, and permits large expenditures of money to be made, upon the theory that there is a subsisting contract, he waives the right of recision, and unreasonable delay on the part of him to whom the right of recision belongs is deemed to be a waiver of such right.</p>

<p>Where the legislature has exempted, by statute, from the payment of the debts of the beneficiaries, funds arising from contracts of insurance in mutual benefit associations, the courts will enforce such exemptions,and such statutes are constitutional.</p>

Action in mandamus. The relator was the lowest bidder for the paving with granite of East Pearl street from Front to Martin, and his bid was lower than the enigneer’s estimate of the cost cf-the improvement.

<p>See 845 Revised Statutes,as amended, 91 O. L., 142, making the Board of County Oommissioners liable in áte official capacity of injuries suffered through its neglect to keep a bridge in repair, is constitutional.</p>

<p>A Justice of the Peace has no jurisdiction to try an action for causing death under sections 6134 and 6135, of the Revised Statutes. Therefore, when the plaintiff recovers in the action, he is entitled to recover his costs, although the amount is less than one hundred dollars.</p>

<p> Midnight Closing Ordinance. </p> <p>An injunction will not be granted to re■strain the officers from enforcing the law, on the mere theory that some one questions the validity of suoh law or ordinance. Before a writ of injunction can issue the law or ordinance should have been declared invalid by some court, or be so apparently invalid that to seek to enforce it would he aD oppressive act.</p>

<p>(1) . It does not lie with a garnishee to question in an attachment suit what orders may or may not be mads in that suit. He is not a party to the case, and while orders may be made against him in the case they are not conclusive upon him. If he feels aggrieved at such orders, he may decline to obey them, and stand suit under section 5551, R, S.</p> <p>(2) . Under sec. 5550, R. S., the court is authorized to order the payment or delivery into court by the garnishee of any money or property discovered on his examination to be in his possession, or the court may allow the garnishee to retain the money or property, and give a bond therefor instead, and no condition is made in this section that there must be a judgment against the defendant before the order can be made.</p> <p>(3) . While under sec. 5551, R. S., if the garnishee declines to obey the order of the court, suit may be brought against him to enforce such order, yet, under sec. 5553, R. S., no judgment can be rendered against the garnishee in such suit, until the action against the defendant in attachment has been determined.</p> <p>(4) . It is the right and the duLy of the garnishee to see and know that jurisdiction is rightfully acquired by the court to adjudicate against the defendant; but the inquiry iuto tho power of the court to render the judgment in so far as it affects the garnishee is under our system of attachment limited to the suit that is brought against the garnishee,and cannot be raised by him in the garnishment proceedings.</p> <p>(5) . If the garnishee sets up as against the property of defendant in his hands, a claim for services, etc., the plainitff is entitled ot test and contest such claim.</p> <p>(6) . Where the garnishee is a citizen of •Ohio, and the property attached, if a debt, was incurred by him in this state, it is no defense on his part that be carried the money into another state. If the court has acquired jurisdiction over him, it has jurisdiction o.ver such debt.</p>

<p>(1) . A receiver acts under orders and directions of the court, and the only title or property he can convey is that ordered by the court to be sold; therefore, should he include in the sale property not ordered sold,and such sale is afterwards confirmed by the court, is must be considered as being confirmed inadvertently.</p> <p>(2) . A railroad which had a contract with another railroad regulating freight traffic between them, was ordered sold on foreclosure, the order of sale ordering the receiver theretofore appointed to sell the road “with all appurtenances”, etc., but not mentioning the contracts of the road with other railroads. Held, (1) such contract was not an appurtenant to the railroad.</p> <p>(3) . The receiver in selling the road also sold its rights under the contract with the other railroad, and such sale was confirmed by the court. Held, that the order of sale by the court not embracing such contract, the sale thereof by the receiver was unauthorized and void, and the confirmation of such sale by the court must be considered as inadvertently made, and did not give suoh sale validity.</p>

<p>Where a large number of persons agreed to purchase a factory of a builder — by the terms of which contract of purchase, they were to become the owners of the factory in common — the subscriptions toward the purchase price ranging from $25 to $100 each, and eaeh of the several subscribers to become liable for no part, of the purchase price, except that portion subscribed by him:</p> <p>Held: 1st. That in an action to recover the purchase price of the factory, section 5009 of the code authorizes joining all or any Dumber of the subscribers in a single action, although a several judgment is sought against each for the sum subscribed by him.</p> <p>2nd. That one of the defendants having been summoned in the county where suit was brought, summons may issue to. other counties for the remaining defendants, as provided in section 5039 of the code.</p> <p>3rd. That the jurisdiction of the common pleas court over the subject matter, as to each defendant, is determined by the amount sought to be recovered against him, and not by the aggregate sum sought to be recovered against all; and that the action must be dismissed as to each defendant against whom less than $100 is sought to be recovered.</p>

<p>(1) , Whatever liens there may be upon a piece of property, may be adjusted in an action to foreclose any lien which a party has, and it will be his duty, in order to obtain an effective sale, to bring-i-n all persons Laving claims upon and interests in the property before the court.</p> <p>(2) . A party in possession of property may rest upon the fact that he will be maintained in his possession until someone comes forward and shows a better title; and whoever recovers must recover upon his own title, and not because oí defects in the defendant’s title.</p> <p>(3) . Proceedings under the occupying claimant law can only be had in an action to recover the property.</p>

<p>There being no ecclesiastical courts in’ this country, courts of chancery have jurisdiction in actions in reference to the burial’ of the dead, or as to the body remaining’ in or being removed from a certain place-of burial. Held,therefore, under the facts-' of this case, that a petition asking the-court to order the removal of the body of a certain dead person from the place-where the same was buried, to anotherf certain place of burial, will be refused.-</p>

<p>(1). The persons entitled to receive licenses from the probate court authorizing them to solemnize marriages in the state of Ohio, are not alone “ministers of the gospel” — meaning Christian ministers — in the strict sense, notwithstanding the wording of section 6386,Revised Statutes. The expression “Any minister of the gospel,” as used in that section, must be construed liberally, and in the light of section 6385, defining the officers who may solemnize marriages, and means any minister of religion of any religious society or congregation.</p> <p>(2) . The expression “regular ordained minister,” as used in said section 6386, must not be construed with reference to any particular form of ordination.</p> <p>(3) . Ministerial Ordination in its legal signification, is viewed by courts in a double aspect: As investing with spiritual authority to preach the gospel or religious tenets of his order or society: and with reference to the right of exercising special ministerial functions, in a particular place, or according to some special regulation. (Kibbe v. Antram 4 Conn., 134.)</p> <p>(4) . A person who being a minister, regularly ordained, and having received a license under section 6386, who is cut off from membership in the congregation and society to which he ministers, and his relation and contract as minister is terminated by any action of the society or congregation, not absolutely void or unlawful, does not “continue a regular minister in such society, or congregation,” in the sense and meaning of said section, and his license should be revolted.</p>

<p>Public officials are elected by the people and are entrustod with certain discretion, and it is not the business of the court to interfere with that discretion, unless there has been a clear abuse of their legal power, or a gross disregard of the proper exercise of their discretion. But where the court has doubt whether the action of the county commissioners is illegal, it will not interfere.</p> <p>Sects. 782 to 793 R. S. inclusive, relate to buildings and improvements being constructed by the state, and have no necessary reference to anything being done by the county commissioners.</p> <p>Secs. 791 to 803 R. S. apply to buildings and improvements being erected by the county commissioners. But the court considers it doubtful whether an elevator in a court house is such a building or improvement as is meant by these sections of the statutes, and therefore where the work of constructing such elevators in the court house has been let by the county commissioners by private contract, although it amounts to more than $1000, the court will not interfere with the action of the commissioners.</p>

<p>The plaintiff and defendant owned adjoining lots abutting on the east side of a street in a city. Plaintiff’s lot also abutted on the west side of another street, but the east line of defendant’s lot was distant more than 150 feet from the other street, the grade of which was many feet higher than that of the street on which both lots abutted. The defendant excavated his lot to a depth less than nine feet below the curb of the street on which both lots abutted, thereby requiring a large expenditure by the plaintiff in underpinning and shoring up the buildings on his lot.</p> <p>Held — That such expenditures must be borne by the plaintiff, and that the defendant was not liable therefor.</p> <p>Sections 2676 and 2677, Revised Statutes, construed.</p>

<p>(1) . Where the operative cause of an injury is not identical with the operative cause in a previous suit, the judgment in the previous suit does not conclude the defendant from again entering into the question as to what constituted the alleged nuisance.</p> <p>(2) . Whether “notice” is an ultimate fact, or a conclusion of law depending on anterior facts — Quaere?</p>

<p>A petition in ttie short form on an account permits of an answer which simply denies the amount due.</p>

<p>(1) . Paragraph eighth, of section 7, of the act of April 24, 1896, (92 O. L., 606) “to provide for waterworks purposes in cities of the first grade of the first crass”, requires that the commissioners appointed under said act, in making contracts, “shall enter into contract with the lowest and best bidder,” etc.; this requirement confers upon said commissioners, by implication, a discretion to determine who is the lowest and best bidder.</p> <p>(2) . This discretion is a “sound discretion”; that is, nota power of mere arbitrary determination, but a power of decision and determination to be based upon facts, and to be made in good faith and without collusion or fraud upon the part of sucb commissioners, and after a hearing upon such facts, with full opportunity to those interested to bo present and beard at such hearing.</p> <p>(3) . Officers to whom public duties are confided by law, are not subject to the control of the courts in the exercise of the judgment and discretion which the law'iraposes on them as a part of their official functions.</p> <p>(4) . If the bare act or decision of the commissioners, in awarding a contract, is alone attacked, the courts cannot interfere,’ because that act or decision is by the law committed to the commissioners, and the courts cannot be substituted for them.</p> <p>(5) . But if the means, manner or method, by which the act or decision is reached, be wrongful, fraudulent, colitis ive, or arbitrary, the courts can inquire into these facts; and, if found true, they will set aside the act or decision which is the result of them.</p> <p>(6) . The courts, however, will not presume wrong, illegality, collusion or fraud Upon the part of public officials, and, if an act or decision, the result of an exercise of discretion, be attacked on these grounds, the facts showing the wrong complained of must be specially set out.</p> <p>17). The plaintiff seeks to enjoin an alleged illegal award of a certain contract. His petition avers that, F. W. & Co’s bid was the lowest and best bid; that H’s bid was not the lowest aDd best; yet, the commissioners awarded the contract to H. No other facts are averred. On demurrer filed to the petition, held, that the petition does not set forth facts sufficient to justify the court in interfering with the award of the commissioners.</p>

<p>An assignment of future wages which may be earned under a contract of employment not yet in existence is void, because such earnings are a mere expectancy not coupled with any present interest.</p>

<p>Greenbacks deposited in bank prior to the act of 1891, eliminating their non-taxable quality, were taxable on a credit belonging to the depositor, unless deposited nnder instructions to the bank to keep them in separate packages and return to the depositor the identical bills deposited; and with reference to an alleged false return for taxation the depositor can not now plead ignorance that greenbacks deposited in the usual manner and mixed with the funds of the bank were taxable.</p>

<p>An assignee in insolvency for the benefit of creditors may maintain an action in partition.</p>

<p>A municipal corporation that appropriates property under an act afterward declared to be unconstitutional, and which is thereby prevented from taking the property, can not be compelled to pay the fee of counsel for the defendant property owner.</p>

<p>1. Where property in the hands of re ceivers is sold by order of court, and the purchaser makes an assignment before completing his payments, jurisdiction over the balance of unpaid purchase money is exclusive in the court in which the property was sold.</p> <p>2. Collections by the assignee of accounts belonging to the previous receivers lose their trust character when mingled with other funds in the hands of the assignee, and the receivers are left in the position of general creditors.</p> <p>3. The act of congress requiring that a ten-cent revenue stamp shall be affixed to ‘‘a certificate of any description required by law” does not apply to mechanics’ liens prepared and recorded as required by the Ohio statutes.</p> <p>i. A proposition in writing which is accepted verbally does not become a contract in writing.</p> <p>5. The holder of a mortgage covering both realty and personalty can not be compelled by the holders of subsequent mechanics’ liens, which attach to the realty only, to exhaust the fund arising from the sale of the personalty before coming on the fund arising from the sale of the real estate.</p>

<p>Sec. 3140-1, R. S. — Rights and duties of parents separated or divorced as to care of children—</p> <p>(1) . The statute makes no provision for the parties charged with adultery or other wrong-doing to be made parties in proceedings under this statute, but the court holds, that if such parties could come in, they -would certainly be allowed to do so upon proper application made.</p> <p>(2) . No man has a right to take another woman into his house while he is living with his wife, and have her live there as a member of his family, unless she is a relative or under peculiar circumstances.</p> <p>(3). Disposition of the children m thi case under the facts.</p> <p>The court has doubt whether under this statute its jurisdiction is exclusive.</p>

<p>(1) . No notice is required to bo given to the next of kin of creditor in making an appointment of an administrator under sec. 6013. ' -</p> <p>(2) . A motion to set aside such appointment, filed within a reasonably short time after it is made, by one having had notice, should be considered by the court.</p> <p>(3) . The court must be satisfied that there is a strong probability that the cred-tor, applicant, can in a court of law, establish the fact that he is a creditor of the decedent.</p> <p>(4) . Under the question, whether or not the applicant is a creditor, the court' may hear sue-h testimony as it deems advisable.</p> <p>(5) . The decedent must not only at his decease have been a non-resident of this state, but he must also at that time have been engaged in the prosecution of business in this state.</p>

<p>(1) . Ancillary administration is not favored by the laws of Ohio, and should only be granted when required to preserve an estate or secure the payment of a claim of a resident creditor.</p> <p>(2) . The law controlling the administration of an estate is more nearly allied to the principles of equity jurisprudence, than to the precepts of the common law.</p> <p>(3) . The conduct of a resident creditor and the condition of the estate may be such that a court will refuse to appoint an ancillary administrator, until all remedies against the foreign administrator nave been exhausted.</p> <p>(4) . McCreight died owning real estate in Clark county, Ohio. His wife was appointed administratrix in New Jersey, the domicile of McC. and lived in Ohio, more than a year after her appointment: The administratrix is still acting and has sufficient funds in her hands derived from the personal property to pay all unpaid debts.</p> <p>B., a resident of this county, has a disputed claim against the estate of said McCreight. A year ago, more than four years after the appointment of the administratrix, the real estate of MrCreight with che consent and approbation of B. was sold and transferred out of the name of McCreight.</p> <p>Held — That no administrator will be appointed by this court until it is shown that B. has exhausted every other remedy to secure her claim.</p>

<p>(1) . The fact that an ordinance passed by the city council granting a street railroad franchise, designated the line through the property in question as being a part of the ordinance is not notice which parties are bound by. Owners of property can not be required to take notice of every act of the city council in granting these rights of way.</p> <p>(2) . Where the shield of the constitution is drawn -.ver a man’s property,' he has a right to protection, although the amount of property involved might be but a hundred dollars, and the damage to the other side might be seventy-five thous- and dollars.</p> <p>(3) . Where under the allegations of the petition the defendant appears to de-feat the constitutional rights of the plaintiff by taking his property for a right of way, the burden of proof is on the defendant.</p> <p>(4) . Where under an ordinance granting the right of way to a street railroad, grading has been done pointing unmis takingly to the property of plaintiff, and the owner stands by for four months without making any assertion of his rights, or any demand or inquiry upon the railroad company, or commencing proceedings, such delay is held to be a waiver of any rights which he may otherwise have had to interfere with the construction of the railroad.</p>

<p>(1) . Parol evidence is inadmissible to alter, vary or contradict the consideration expressed in a deed, when the purpose or effect of such alteration, variation or contradiction would change the effect or legal operation of the deed.</p> <p>(2) . Where the deed has a consideration, expressed in it of one dollar, and none other is mentioned, or can be inferred from the language of the deed, such-consideration is a valuable consideration, and for the purpose of determining the descent of the real estate conveyed, casts-upon the grantee a title by purchase.</p>

<p>Heard on demurrer to petition.</p>

<p>(1) . The right of a Widow to a year’s allowance rests upon the existence of the family relation.</p> <p>(2) . The establishment of the mere fact that the marriage relation once existed and was never legally severed will not be sufficient to establish the widow’s claim to the year’s allowance.</p> <p>(3) . The claimant must show in addition that the marriage relation actually existed at the time of decedent’s death, or if it did not exist, that it, was against her wish, and without her fault.</p> <p>(4) . A widow may, by contract made during the lifetime of her husband, release her right to a destributive share of his estate.</p> <p>(5) . Only a widow or widower can commence the action to assign dower, arid if the widow or widower die before such action is begun, the real estate passes to the heir free from any dower claim.</p>

<p>j ibel — Prosecution of manager of newspaper owned by corporation—</p> <p>(1) . To find the defendant guilty as charged, the jury must be satisfied beyond a reasonable doubt that the libelous article was published by the defendant intentionally or through some want of ordinary care and caution on his part in the conduct of the business of publishing said newspaper.</p> <p>(2) , It is not the office of an innuendo to add to the natural sense or import of the language used by the defendant, and if the indictment cannot be sustained on-the ground of the natural and common meaning of the language, in its usual acceptation, or as pointed out by the preliminary statement, it cannot be aided by asserting by way of irnuendo, the offensive meaning of the language.</p> <p>(8). It is the provision of the court to say whether the language claimed to be libelous, will bear the interpretation so given to it by the innuendos; but it is for the jury to determine from the facts set forth in the indictment and the evidence before it whether this is the meaning of the language so used.</p> <p>(4) . If the jury find that the alleged libelous matter was true, and was published with good motives and for justifiable ends, then they must acquit the defendant.</p> <p>(5) . The defense that the alleged libelous matter was true and published for justifiable ends need not be- proven beyond a reasonable doubt, but the defendant is only required to establish such defense by a preponderance of the evidence and by proof of acts independent of any mere public or other rumor.</p> <p>(6) . A publication is deemed malicious if done willfully and unlawfully and in violation of the just rights of another. From such willful and unlawful publication, malice is presumed.</p>

<p>Gas and Oil Lease — Action by lessor against lessee for damages for failure to operate land leased properly and sufficiently —Protection of land as against wells on adjoining land — What the jury should consider.</p>

<p>(1) . Under the law creating the Board of Review of Cincinnati, that board has the powers and is to perform all the duties heretofore conferred upon or required of the annual board of equalization, and has all the powers and is governed by the rules, provisions and limitations prescribed for the annual county board of equalization.</p> <p>(2) . Annual boards of equalization can act only upon specific parcels of real property, and only in cases of gross inequality, and after personal notice.</p> <p>(3) . The jurisdiction cf the board of review of Cincinnati in making additions to the valuation of property depends upon a finding of gross inequality, and from the nature of things this finding must first be made by the board of review itself,, for each tribunal'must determine its own jurisdiction.</p> <p>(I). Gross inequality is a relatiye term. It has no fixed meaning, but varies with varying circumstances. Small additions or small reductions of tax values may become necessary compared to •other pieces of property, as well as to numerous other conditions which must be taken into consideration by the reviewing board.</p> <p>(5). Complaint or suggestion to the board of equalization is not a condition precedent to its action in changing the values for gross inequality. It may take action on its own motion, or from its own knowledge.</p> <p>(6. The members of boards of equalization acting as such are not required to see the property or to enter into it or upon it. They may form their opinion in such manner as seems to them advisable.</p>

<p>. (1). Under sec. 6165, R. S., providing for the distribution of the proceeds of the sale of land sold by the administrator to pay debts, the widow’s claim for year’s support does not take precedence of iudgment liens.</p> <p>(2) . It does not require an application by a widow for setting off a homestead to her where lands are sold on petition of the administrator to pay debts under sec. 5437, R, S., nor could the widow waive it where there are minor children.</p> <p>(3) . Where a homestead is set off to a widjw, the judgment liens remain attached to it, and when the homestead right terminates, suoh liens, if they are kept alive, can be enforced against it as liens.</p>

<p>(1) . In an action against an insurance company service may be made on the local agent under sec. 5046, R. S., and also on the managing agent in the state under sec. 5045, R. S., although not a resident of the county. The provisions of these sections in that respect are cumulative.</p> <p>(2) . Where the agent of an insurance company attends the hearing of a case in a court Icoated in another county, for which county he is also the agent of that insurance company, and while there he is served with process in another suit there pending against his insurance company, such service, in view of the provisions of our statutes in regard to the service of process on insurance companies in suits instituted against them, will not be set aside as invalid.</p>

<p>The allowance fixed by council to the city marshal for keeping prisoners at the city prison constitutes part of his emoluments, and can not be changed during his term of office.</p>

<p>Loss of consortium — In actions for damages by a husband for loss of “ consorium”, against third parties for inducing the wife to leave her husband it is necessary that the petition should aver some facts that will make the action malicious, so that defendant may be advised of the wrong-doing that he is charged with.</p>

<p>A member of the board of health can not be appointed by the board sanitary policeman and hold both positions at the same time. Such appointment is illegal and void, and the party is not entitled to compensation for his services as such sanitary policeman.</p>

<p>(1) . The court has power to allow amendments to the return of process-by the sheriff where it does not interfere with the rights of other persons which have been fixed by proceedings be-tween the first return and the leave to-amend.</p> <p>(2) . Where the sheriff, after levy, receives a check in payment of the judgment,and thereupon returns the execution1 as satisfied “money made”, but after suchi return is made the check is not paid by the bank on account of want of funds of' the drawer, the sheriff will be allowed to-amend hiS return so as to state that the money was not made. And where in the meantime another judgment creditor ha® secured a levy on the same property, hi® lien under such levy will not have precedence as against the lien of the first judgment creditor.</p> <p>(3) . The lien under the levy subsists' unless the judgment is satisfied by payment. The return of the sheriff is evidence-of payment, but it is not payment itself, and unless the money was made, and it was paid, there is no satisfaction of the-lien at all.</p> <p>(4) . The sheriff has the right in this day and generation to take checks, and if he should be forced after taking the check, by expiration of time_, to make his return before he can ascertain whether the check is good,, he will be allowed to amend his return.</p> <p>(5) . Proceedings for the amercement of the sheriff are strictissimi juris, and he is only amerceable in cases which come within the letter and spirit of the statute.</p>

<p>(1) . It is not negligence as a matter of 'law, for a brakeman to get on and off the ■cars while in motion, as a large part of his work can not be done in any other way.</p> <p>(2) . A person is not required to look out for obstructions unless he is at a known place of danger, such as a railroad crossing.</p> <p>(3) . The defendant company having an ice-house close to a spr-track used for loading ice, put a projection on the ■building which extended out over the cars. A brakeman who had no knowledge of, ■and no reason to apprehend such obstruction, while climbing up the moving car to set the brake, was injured thereby. Held, the deceased was not guilty of contributory negligence, and the defendant company was liable for his injury.</p>

<p>(1) . In an indictment for a crime the allegations of the indictment must specify with certainty every element of the crime; but no particular words need be used to make the allegation.</p> <p>(2) . An indictment for perjury charged the defendant that she did “corruptly, wilfully and feloniously depose”, etc., leaving out the word “falsely”. Held, sufficient as against demurrer to the indictment.</p>

<p>(1) . A board of education may authorize a local director to contract for the sinking of a well.</p> <p>(2) . A contract by the board of education for the sinking of a well requires a yea and nay vote of the board.</p> <p>(3L To authorize the board to enter in a contract for sinking a well, it is necessary that the clerk should first certify that there was money in the treasury to pay for it.</p> <p>(4). It is sufficient if the petition avers that a contract by a board was duly made or a res ilution duly passed. The court will assume that the steps required by law to maxe a legal contract have neen complied with.</p>

<p>(1) . Before the passage of the act of 1882 (sec. 2478, R. S., which gave power to cities, etc., to regulate the price of natural gas to be furnished within the city by gas companies) the.city council of Toledo had only power to fix the price of such gas by contract with the gas companies, and the passage of the ordinance of 1886, by it, fixing the price of natural gas to be furnished its citizens, and the acceptance of the terms thereof, by the gas companies, constituted a contract; and the gas companies having expended large sums of money in pursuance of such .contract in purchasing gas lands and wells and in laying pipes to bring such gas to Toledo before the passage of see. 2478, R. S.. that statute cannot be held to change the contract relation between the city of Toledo and the gas companies, established by their agreement, and which remains binding upon the parties thereto.</p> <p>(2) . Such ordinance containing the express requirement that the Gas Cos. shall furnish gas to all persons requiring it in the city so far as the company may be able, without preference or favoritism, on equal terms and at reasonable prices, neither company could lawfully make and enforce a sale at prices that would be unequal, unreasonable or extortionate, though the common council should unite with the gas companies in approving such schedule.</p> <p>(3). By the terms of such ordinance as accepted by the Gas Cos. the city council and the Gas Companies, acting together by agreement, may adjust a scale of prices for gas which shall be reasonable, not extortionate and shall operate equally upon all the citizens of Toledo. And while the Gas Co’s, furnish gas to the city of Toledo or any of its citizens, the duty is imposed on them to agree with the common council upon equal and reasonable rates and terms, and should such duty be disregarded by them, the court may exact obedience to such contract duty by mandatory.injunction.</p>

<p>Appraisements — When they may he set aside.</p>

<p>(1) . Under see. 3140, R. S., as amended April 11, 1890, (87 O. L., 178) a street railway company in the city of Toledo may appropriate the right to use the tracks of another street railway company for not more than one-eighth of the length of its entire route actually constructed in the manner provided by part 3, title 2, chap. 8, R. S.</p> <p>(2) . The petition to so appropriate the use of the tracks of one or more other companies may include one or more parcels whether they belong to the same or to different parties, and whether they are in the same municipality or in different municipalities or even in different counties.</p> <p>(3) . As a preliminary condition to the right of a street car company to exercise the right of appropriation, it must show that it has a complete organization by the election of a board of directors and the other statutory officers.</p> <p>(4) . Before a probate court can issue its order for a jury in such appropriation proceedings, the statute requires it to de termine four preliminary questions named in the statute. Of these, the question whether the company has been granted by the city the right to construct its tracks in the streets, and whether it has obtained the consent of a majority of the abutting property owners is not one, and the probate court is therefore authorized to ignore this question. But if it should afterwards turn out that the company had not obtained the necessary consents >f the property owners, any property owner could have a right to raise that question in any oourt having jurisdiction.</p> <p>(5) . Before a court,upon error, will reverse a lower court, it must find substantial error to the prejudice of the party complaining. Where therefore in an appropriation proceeding there is no complaint as to the amount of the damages awarded, mere errors on the proceedings are not such substantial errors to the prejudice of the party complaining for which the judgment below will be reversed.</p>

<p>In an action in mandamus, brought-by a bidder for a city contract, to compel the city to award the contract to. him as the lowest bidder, and where the court finds that he is entitled to the contract, but in consequence of the delay caused by carrying the case through the courts, the contract was in fact awarded to another bidder, and was fully performed and paid for by the time a final judgment for the relator was rendered, and the issuing of the writ therefore became impracticable, and would be a vain thing, the contractor is not entitled in the same suit for mandamus-to have his damages determined and to have judgment therefor. Sec. 6753, R. S., does not contemplate this kind of' damages.</p>