Volume 7 — Ohio Nisi Prius Reports

<p>LIABILITY TO SUB-LESSEE FOB. FAILURE OF QUIET POSSESSION.</p> <p>Lease — Transfer of, for Unexpired Term — Was it an Assignment or a Sub-letting — Transferee Compelled to Purchase Peace with the Owner — Brings an Action Against the Original Lessee on Contract and in Tort for Loss Sustained — “Term” Comprehends Time and Estate — Notice—Imperfect Return by Constable.</p> <p>1. Where a lessee transfers his lease to _a_second party •vyho in turn enters into a written agreement with a third, .party whereby he conveys the lease to said third party for a term equal tp the unexpired term of the lease and at the same rental, with a defeasance clause and an agreement on the part of said third party to attorn to the second holder and deliver up the premises to him at the end of the term, dr upon failure to comply with the provisions of the lease, the contract is an assignment and not a sub-letting, and there is no' privity between the third in occupation and the original lessee,-, and the said third party can not maintain an action against the original lessee, upon an implied warranty of title and quiet enjoyment of the premises, for expenses incurred in defending a suit in forcible entry and detainer and in buying peace with, the owner of the premises.</p> <p>2. The transcript of a record from a justice of the peace in a forcible entry and detainer action, which shows no more with reference to notice to the defendant than that he was served “in person,” is clearly insufficient to show that the justice obtained jurisdiction over the defendant.</p>

<p>CLERK HIRE IN COUNTY OFFICES.</p> <p>Appeal — Dies From, County Commissioners, When — Allowances to County Offices — Section 896 Given Same Construction as Section 1J/94 — Right of Public Officer to Compensation.</p> <p>1. The right of appeal from the action of the hoard of county commissioners in rejecting a claim against the county is limited to matters in which the commissioners are vested with a judicial function, and does not include those matters in which the commissioners act with discretionary power or in an administrative or governmental capacity.</p> <p>2.. No appeal lies from action by county commissioners in fixing the allowance for clerk hire for county offices.</p>

<p>LIABILITY OF CARRIER. FOR. APPLES FROZEN IN TRANSIT.</p> <p>Carriers — Negligence of, with Reference to Care of Shipment — Carrier a Practical Insurer of Freight Notwithstanding Protection given under Bill of Lading — Notioe to Consignee of Arrival — Knowledge of Carrier as to Weather Conditions — Reasonable Time for Removal of Goods by Consignee.</p> <p>Where a shipment of apples is unloaded from a packet upon a wharf- . boat in the early evening, and during the night the apples are frozen, the carrier is liable to the consignee for the damages thus sustainfed.</p>

This was an action upon the bond of a ditch contractor, charging default in not completing the job. The facts are as follows : The improvement in question was an old ditch, in which water runs the year through. Carroll bid off Sections 3 and 4, and gave Kryling as his surety on his bonds.

<p>WORK HOUSE GUARD INJURED BY EXPLOSION.</p> <p>Municipal Corporations — Governmental as Distinguished from Corporate Powers — Profitable Labor by Worhhouse Prisoners — Guard Injured in an Explosion — City not Liable — Negligence.</p> <p>1. In putting some of the prisoners confined in the work house, to labor in a quarry, and selling some of the work obtained -by them, the city is not conducting a private corporate enterprise, hut is exercising a delegated state function, in furtherance of upholding the public peace.</p> <p>2. No liability attaches to a municipality on account of injuries received by a workhouse guard resulting from an explosion which occurred while he was thus acting as a work house official.</p>

<p>RECOVERY OF INTEREST FROM BANKS ON PUBLIC FUNDS.</p> <p>Interest — Recovery of, as Damages — For the Unlawful Use of County Funds hy Banks — Nature of the Action — Application of the Statute of Limitations — Exceptions as to Trusts — Not an Action on the Ground of Fraud — ■Defenses—Measure of Recovery — Section J/981.</p> <p>l.-An action by a prosecuting attorney to recover interest from a bank by way of damages for the alleged unlawful use of county funds, obtained from different county treasurers during a period of twenty years, is an action for the benefit of the county, and is governed by the limitations prescribed in Section 4981.</p> <p>2. While such an action arises out of a trust, it can not be entertained in equity regardless of the statute of limitations, for the reason that it was not an express but a resulting trust.</p> <p>3. Nor is it an action for relief on the ground of fraud; and if it were the statute would begin to run from the time the fraud was discovered or ought to have been discovered.</p> <p>4. There is no merit in the contention in such a case that so long as there were funds in the bank sufficient to pay in full the amount of the treasurer’s deposit, the bank had no use of the county funds and there was no commingling of them with its own.</p> <p>5'. As to the measure of recovery, it is the amount of profit accruing to the bank from the use of the county funds; and if it is impracticable or impossible to determine exactly the amount of this profit, interest should be allowed at the rate of six per cent.</p>

<p>DISSOLUTION OF A LABOR. UNION.</p> <p>Procedure — Where a Nondescript Association is Involved — Application of Section 3008 — Parties in Pari Delicto — Jurisdiction—Public Policy — Right of Labor and Capital to Combine — Right of-the Public to Industrial Freedom — When Combination becomes Unlawful— Methods which cure Inimioal to the Public Welfare — Disaffirmance of an Executory' Contract — Decree Dissolving the Amalgamated Window Class Worhers of America and Appointing a Receiver for its Funds which after Payment of Just Claims must be Distributed Among the Members by Whom it was Contributed.</p> <p>1. One object of Section 5008, Revised Statutes, is to enable nondescript associations of persons to obtain a standing in court, without inordinate delay and expense; and it is sufficient, both for jurisdiction and for judgment, if the interest that is held in common be fairly represented by those who are in court. In an action between factions of an association whose purposes and methods are against public policy, although the parties plaintiff are in pari delicto, and therefore not entitled to relief, the action may nevertheless be maintained in the interest of the public, where it is in disaffirmance of an executory contract.</p> <p>2. Men may combine and co-operate for the advantageous marketing of their skill and labor, or their capital; but this right is limited by the right of the public to have industrial and commercial freedom maintained and promoted. Whatever, of purpose or of method transcends these hounds, if in its tendency it is opposed to the public welfare, is under the ban of the law and its administration.</p> <p>3. The leading general purpose of the Amalgamated Window Glass Workers of America is, to protect and promote the interests of its members — a purpose that is both lawful and commendable; but many of its ancillary purposes and methods plainly contravene public policy, and render the association an illegal organization.</p> <p>Decree: The association is dissolved, and a receiver appointed to take charge of its funds.</p>

<p>CONSTRUCTION OF THE ACT TO OBVIATE GRADE CROSSINGS.</p> <p>Crossings — Act to Obviate at Grade — Remedial in Its Nature — -Not in Pari Materia with Other Statutes on Similar Subjects — Must be Construed to Carry out the Purposes of Its Enactment — Circuit Court Without Jurisdiction — Re-location of Streets — Authority to Place Piers in Streets — Constitutional Law — Public Policy — Implied Powers — Municipal Corporations — Section 8387-17a.</p> <p>1. That part of Section 2 of the act of April 2, 1906 (Revised Statutes, 3337-17cs), providing that if a municipality and railway company are unahle to agree as to the plans and specifications for avoiding a grade crossing of a street and the railway, the matter shall be submitted to the circuit court for determination whether the public safety requires an abolition of the grade crossing and whether the plans proposed are reasonable and practicable, is void for the reason that it exceeds the jurisdiction of the circuit court as provided by the Constitution; but this provision may be eliminated without affecting the efficiency and purpose of the act.</p> <p>2. Authority is conferred in this act for the alteration and re-location of streets; the method of so doing is’a matter of detail, dependent on topography and situation, and when exercised reasonably is not open to review by the courts; and the diversion of ground from use for street purposes is not beyond the power of the board of legislation.</p> <p>3. The clear policy of the state to avoid placing permanent obstructions in the street is not infringed in obviating a grade crossing by placing piers in the street, where they are so situated as not to interfere with travel and any other plan of construction would be so much more expensive as to be prohibitive.</p>

<p>TURNING WATER FROM A ROAD UPON ADJACENT LANDS.</p> <p>Township Trustees' — Collection of Water Toy, in a Highway Ditch — No Authority to Throw the Water upon Adjacent Land, When — Rights of Owners of Servient Estates — Public Necessity■ — Eminent Domain —Natural Easements.</p> <p>Where township trustees collect more water in the ditch bordering a highway than would naturally flow there, they must provide for its disposition in a manner which will not work an injury to the adjacent land owner; and where it is necessary to cut through the highway and throw the water upon the lower land on the opposite side, they must first acquire the right so to do by eminent domain or by otherwise compensating the land owner for the damages he will thereby sustain.</p>

<p>FAILURE TO PROBATE WILL WITHIN THREE YEARS.</p> <p>Wills — Authority of Administrator with Will Annexed to Sell Realty —For Purposes of Distribution Land will be Regarded as Personalty, When — Will Set Aside more than Three Years after Death of Testator — iEarlier Will then Probated — Devisee who had Custody of Will not Debarred from Talcing — Sections S9J/8 and 3986.</p> <p>1. Where a devisee of a share in real estate dies before distribution is made, the proceeds from a sale of the property go to his heirs as personalty and should be paid to his administrator.</p> <p>2. H left two wills. The later one was probated within thirty days, and was contested, and after a lapse of more than three years was set aside. Immediately thereafter the beneficiary in whose custody both wills had been placed procured the probate of the earlier will. Held:. That the custodian of the will was not debarred under Section 5943 from taking as a devisee under the second will by the fact that more than three years elapsed after the death of the testatrix before he offered it foe probate.</p>

<p>PARAMOUNT OBJECT IN MIND OF TESTATOR..</p> <p>Wills' — -Construction of — Authority to Consume Corpus of Estate to Support Imbecile Son will be Implied, When.</p> <p>Real estate belonging to a decedent may be sold and the corpus as well as the income used for the support of an imbecile son, wben the language of the will indicates a purpose on the part of the testatrix to provide for the care and support of such son regardless of the interests of the remaindermen.</p>

<p>DENIAL OF RECEIVER FOR. LIFE INSURANCE COMPANY.</p> <p>Reoeiver — Share-holders and Policy-holders of Life Insurance Company not Entitled to Appointment of, When — Evidence Required to Sustain Application for — Construction of Section 274 — Death Claims not Unconditional Promises to Pay — Insolvency in the Strict Legal Sense and Under the Insurance Laws — Past Mistakes • — Internal Policy — Fraud and Waste — Doing Business “Unlawfully.”</p> <p>1. A receivership is a harsh and extraordinary remedy and a court of equity when considering the remedy will look to the equities of the entire case as well as the mere technical legal rights of plaintiffs.</p> <p>2. Past irregularities afford no ground for the appointment of a receiver. Nor do present irregularities or mismanagement unless accompanied by actual fraud.</p> <p>3. There being no action for a receivership, no receiver will be appointed unless the remedy is ancillary to some other ultimate equitable relief and where necessary to make that other relief effective. •</p> <p>4. If dangers threaten due to irregularities and acts, constructively fraudulent, no moral turpitude being involved, and if such dangers can be effectively prevented by some other remedy, as for example, injunction, no receiver will be appointed.</p> <p>5. Section 274, Revised Statutes, confers powers and duties on the superintendent of insurance and is primarily for the benefit of the public; it confers no power in the first instance, at the suit of a share-holder or policy-holder, upon a court of equity, to enlarge its jurisdiction to wind up the affairs of an insurance company.</p>

<p>LIABILITY FOR ACCIDENT DUE TO BAD CONDITION OF COUNTRY ROAD.</p> <p>County Commissioners — Negligence of, in Keeping Roads in Repair— Action Against for such Failure does not Lie, When — Application of Section 8J/5 as Amended — Punctuation—Pleading.</p> <p>1. Inasmuch as Section 845 is in derogation of the common law and should he strictly construed, a petition filed under this section and asking for damages against county commissioners, he,cause of an accident growing out of the unsafe condition of a public highway, should clearly allege that the said highway is a state or county road.</p> <p>2. Moreover, liability for such an accident can attach, to a county only when it is made to appear that the county commissioners had been negligent with reference to repairs which it was their duty under the law to make, and that such negligence wás the cause of the accident for which damages are sought.</p>

<p>LEAVE TO AMEND AFTER VERDICT.</p> <p>Pleading — Application of the Rule where Negligence is Averred — Dis-creation as to Permitting Amendments — Action Against Traction Company for Frightening Horse.</p> <p>Where the evidence of the plaintiff shows that a flawless petition could he filed, the rule that plaintiff will be limited to acts of negligence specifically averred will not be applied; but a motion by the defendant for judgment non obstante veredicto will be overruled and its motion for a new trial granted in order to give opportunity for filing an amendment.</p>

<p>SERVICE UNDER. ACTIONS IN INTERPLEADER.</p> <p>Interpleader — Provisions of Section 5016 Relating to Actions in — Provisions of, not Exclusive — Summons—Section 5045 not Applicable to Interpleader Brought by the Stakeholder — Provisional Remedies —Equitalble Considerations can not be Regarded, When — Proceedings in Rem and in Personam — Pleading—Jurisdiction—Action to Determine Ownership of Life Insurance.</p> <p>Section 5045, providing for service by publication in certain cases, does not apply to an action in interpleader where brought by the stakeholder, and constructive service can not be made on a non-resident defendant in such an action.</p>

<p>FAILURE OF A REMAINDER.</p> <p>Wills — Death of Life Tenant Without Issue — Failure of the Remainder —Brothers and Sisters of the Half-blood Share in the Undevised Lands — Pleading—Partition.</p> <p>Where a son of a testator is bequeathed a life estate in lands with the remainder to his legal heirs and the son dies without issue, the remainder .fails and the lands go back as undevised.</p>

<p>AS TO REVOCATION OF THE RIGHTS OF A STREET RAILWAY COMPANY.</p> <p>Street Railways — Franchises of — Provision Requiring the Company to Re-pave a Certain Portion of the Street — Was the “Devil Strip” Included? — Recognition of Rights Claimed hy Railway — Municipality may Summarily Interfere with Operation of Road, When — Irrevocable Character of Contract Embodied in Franchise — Disregard of Conditions — Injunction.</p> <p>1. The acts and conduct of the municipality in this case amounted to a recognition hy it of the rights claimed hy the street railway company to maintain its tracks in the streets as to which it is now claimed no franchise was granted hy the renewal ordinance.</p> <p>2. It is competent for a municipality to summarily interfere with the operation of a street railway, where a reservation of the right so to do has been made and the grounds for so doing are legally sufficient.</p> <p>3. But the irrevocable character of the contract embodied in a street railway franchise which has been accepted by the company, binds the municipality to the agreement then made, and forbids the application of provisions embodied in ordinances and regulations thereafter enacted, unless such ordinances and regulations have reference to governmental matters.</p> <p>4. Under the testimony offered in this case an injunction is warranted against interference with the operation of the street railway because of the refusal of the company to comply with the demands'of the municipality as to the width of the strip in the street which it shall re-pave, including the “devil strip.”</p>

<p>INDEBTEDNESS INCURRED BY A VILLAGE IN DISREGARD OF LAW.</p> <p>•Municipal 'Corporations — Illegal Purchase of Supplies — Authority for Payment for can not he Based on Moral Obligations — Villages— Contracts — Injunctions.</p> <p>Where a village purchases supplies in an amount in excess of $500 without advertising for bids or entering into any contract as required by law, the fact that the goods were purchased and delivered in good faith does not render the village' liable therefor because of the moral obligation incurred, and upon suit.by a taxpayer an injunction will lie against payment of the bill.</p>

<p>LIABILITY OF PRINCIPAL DEBTOR TO ESTATE OF HIS SURETY OF WHICH HE IS EXECUTOR..</p> <p>Promissory Notes — Maker Becomes Executor of Estate of Surety— Right of Surety to Indemnity is a “Claim” — Nature of Contract Between Principal and Surety — Administrator Must Charge Himself With Amount of Indebtedness in Excess of his Beneficial Interest in the Estate — As to Conversion of Debt into Assets by Appointment of Debtor as Administrator.</p> <p>An insolvent principal maker of a note, who is named as executor in the will of his surety and accepts and qualifies as such, and who pays his own notes as they subsequently fall due as claims against the estate, is properly chargeable, under the provisions of Section 6069, Revised Statutes, as for so much money in his hands.</p>

<p>RESTORATION OF BURNED RECORDS STATUTE UNCONSTITUTIONAL.</p> <p>Burned and Destroyed Records — Act for the Restoration of, Unconstitutional — Because of Denial of Opportunity for Review — Necessary Evidence Upon Which to Base a Restoration — Designation of an Hew — Property Rights — 81 O. L., 159-160.</p> <p>1. The provision of the act for the restoration of burned or destroyed records (April 12, 1884; 81 O. L., 159-160), that no appeal can be taken from such proceedings and no error prosecuted thereto, is an interference with the rights of property and is unconstitutional.</p> <p>2. It is error to order the restoration of a record which it is claimed has been destroyed, unless some evidence is offered that such a record was once in existence.</p> <p>3. The statute of limitations has no reference to burned or destroyed records.</p>

<p>GROUNDS FOR. GRANTING A CHANGE OF VENUE.</p> <p>Criminal Law — Change of Venue — Motion for, Should he Granted, When —Influence on the Public Mind of Inflammatory Articles in the Newspapers — Defendant Entitled to a Jury Free from any Settled Belief with Reference to his Guilt — Sections 7263, 7264 and 7265.</p> <p>1. While it is the rule that one is qualified to sit as a juror in a criminal case who states that, notwithstanding an opinion he has formed as to the guilt of the defendant, he believes he can lay that opinion aside and render a fair and impartial verdict based alone on the evidence and charge of the court, it is nevertheless the duty of a court to secure as jurors men who do not entertain a settled belief as to either the guilt or innocence of the defendant.</p> <p>2. If it appears from the evidence, offered in support of a motion for a change of venue, that it is improbable the defendant can secure a fair and impartial trial or an unbiased or unprejudiced jury in the county of his residence, it is the duty of the court to order a change of venue. State v. Elliott, 25 Law Bulletin, 366, doubted.</p>

<p>CONSTRUCTION ON MECHANICS’ LIEN LAW.</p> <p>Liens — Of Sub-contractors and Material Men — Subordinate to Set-off of Debt Due Owner, When — Payment of Judgment against Owner and Contractor Jointly Tantamount to Payment to Contractor, When — Sections 3193 and 3191¡.</p> <p>The owner of a building may set-off an antecedent debt due to him from the contractor who erected the building against the amount remaining due on the contract to the exclusion of claims by subcontractors and material men, notwithstanding the contract did not provide that payment should be made in advance or make any statement of the amount due the owner from the contractor at the time of entering into the contract.</p>

<p>TITLE TO VACATED STREETS.</p> <p>Streets — Title to, after Vacation — Language of Dedication — Municipal Corporations — Section 2601 — Ejectment—Sui divisions.</p> <p>Where abutting lot owners convey their interest in the property on both sides of a street to the municipality and the street is thereafter vacated, the municipality takes a fee simple title in the street as against the claims of those who laid out the subdivision and dedicated the streets “to the public forever, to be used as public highways, and for no other purpose.”</p>

<p>PLEA OF AUTREFOIS ACQUIT.</p> <p>Criminal Law — Plea in Bar — Effect of a Judgment of Reversal with Reference to Counts as to Which the Jury were Silent — Autrefois Acquit-not Available.</p> <p>The reversal of the judgment in a criminal case places the state and defendant in the same position they occupied before the trial; and where a defendant secures a reversal of a verdict, which was silent as to the first and second counts and found him guilty under the third count of the indictment, he can not thereafter maintain a plea in bar to the first and second counts.</p>

The defendant- is a fraternal beneficiary association under the laws of Ohio. In March, 1904, James Daley was admitted to membership, and about March 28 the defendant issued and James Daley accepted a beneficiary or insurance certificate by which at his death in accordance with and subject to his conditions set forth in the certificate and the constitution and by-laws of the association there was to be paid to the plaintiff, Eugene Daley, the sum of $1,350.

<p>COMPENSATION FOR. LAND APPROPRIATED FOR. SIDEWALKS.</p> <p>Eminent Domain — Appropriation of Strip for Sidewalk — Payment Long Delayed and Abutting Lots are in the Meantime Solé — Oompensa-tation Claimed by the Grantees — But Treated as Saving Vested in the Grantor.</p> <p>Where the right to compensation for land appropriated for sidewalk purposes has once vested, but payment therefor is long delayed, the claim therefor will be treated as personal in the original owner, and not as having passed with the lots, subsequently conveyed after the building of the sidewalk by deeds in which no reference was made to such claim.</p>

<p>THE MUNICIPAL ASSESSMENT LIMITATION.</p> <p>Municipal Corporations — Assessments "Which Fall Under the Longworth Act — Grade Grossings, Sewers, Paving — Construction of Sections 2835, 1536-213, 1536-292, 333747a et seq,J>ZZl-ng, 28356, 1536-210 and 2837 — General and Superior Cbject Can Not he Defeated "by a Less General ■ and Inferior Direction.</p> <p>Such improvements as paving, sewer construction and abolishing of grade crossings within a municipality are improvements within the provisions of Section 2835, Revised Statutes, limiting the authority of council to issue bonds, and where the cost of proposed paving, sewer construction, or abolishing of grade crossings will raise the net indebtedness of the city beyond the 4 per cent, limit, council has no authority to issue bonds therefor without the approval of the electorate.</p>

<p>JURISDICTION OF JUSTICES OF THE PEACE OVER FOREIGN RAILWAY CORPORATIONS.</p> <p>Justices of the Peace — Jurisdiction of — Over Foreign Railway Corporations in Attachment — Publication of Summons — Sections 6477, 6478, 6489 and 6496.</p> <p>A' justice of' the peace may obtain jurisdiction by publication over a foreign railway corporation, whose president does not reside in the township and whose road does not enter the township and which can not be serveá with process under Section 6498. Squire v. Railway, 1 C. C. — N. S., 354, not followed.</p>

<p>ACCEPTANCE OF SURRENDER. OF PREMISES.</p> <p>Landlord and Tenant — Guaranty of Payment of Rent Passes with Conveyance of the Fee — Attempt to Surrender Lease — Refusal to Accept Surrender — Charge of Court.</p> <p>Acceptance by a landlord of the surrender of leased premises is not shown by testimony that the agent of the landlord called upon the lessee for the key, saying, “I want to take somebody up there to show them the place,” when the only testimony as to anything ■ further said by the agent at that or any other time was that he refused to accept the premises and insisted on holding the lessee ■ for the rent for the remainder of the term of the lease.</p>

<p>SERVICE OF SUMMONS IN DIVORCE CASES.</p> <p>Divorce — Service of Summons in Actions for — Publication—Sections 50J/5, 5392 ana 5693.</p> <p>In an action for divorce, where the defendant is a resident of this State, a copy of the petition must he served upon him with the summons; if he is not a resident of this state, and service is sought by publication, a summons and a copy of the petition must be sent to him in addition to the copy of the publication; but if the residence of the defendant is unknown to the plaintiff, and can not with reasonable dilligence ■ be ascertained,, and these facts are made to appear to the court bj" affidavit or otherwise, notice,.of the pendency of the action may be; given by publication as in otjier cases, and the sending of a co'py of the petition and .summons, to the defendant may be dispensed with.</p>

<p>COMMITMENT FOR. MISDEMEANOR..</p> <p>Sentence — Authority to Commit to Work Rouse for Misdemeanor— 'Habeas Corpus — Not Available Because of Errors • Which do not Render the Judgment Vpid — Sections 1536-369 and 1536-383.</p> <p>1. A police court has authority under the law ■ of Ohio to commit to the work house upon conviction of a misdemeanor. Lemmon v. The State, 77 Ohio S'tate, 427, not followed.</p> <p>2. But were it true that such authority does not exist, habeas corpus will not lie because of error in committing the accused to the work house instead of the county jail.</p>

<p>PLEA IN ABATEMENT.</p> <p>Criminal Law — Plea in Abatement to Indictment Charging Embezzlement and Larceny — Objections to Or and Jury — Claim that Indictment was Secured by Prejudice Misconduct and Conspiracy — Sections 5164, 5165, 5168, 5171, 7202, and 7203 — Challenges.</p> <p>1. It may be plainly implied from the language of Section 5168, Revised Statutes, that the number of persons constituting a legal grand jury is fifteen.</p> <p>2. Technical objections to the impanneling of a grand jury will not be considered after presentment of the indictment, or even on challenge to the array; and where the jury wheel has been filled with the proper proportion of names from each ward and township, a panel is not rendered illegal because the names which were drawn from the wheel were largely from one locality.</p> <p>3. Inquiry by the court or prosecuting attorney as to the qualification of grand jurors is not required, but does not prejudice the rights of the accused, who under a plea in abatement may show disqualification if any exist and thus be relieved from the indictment.</p> <p>4. It is the duty of the court to call the attention of the grand jury to matters requiring investigation, and if a mistake were made in that respect it would not afford ground for a plea in abatement.</p> <p>5. Neither absence from the jurisdiction at the time the investigation was made by the grand jury, nor ignorance that an investigation was in progress, afford ground for a plea in' abatement. Persons indicted under such circumstances must vindicate themselves before a petit jury.</p> <p>6. It is impracticable that the qualifications of grand jurors should be inquired into with the same care as in the case of petit jurors, and if it should happen through the .infirmities of human nature that a citizen were wrongly indicted by a grand jury whose qualifications have been favorably 'passed upon by the jury commission and who have taken the required oath,’ his remedy is not by a plea in abatement, but with a presumption of innocence still at- , tending him he must rely upon a judge and petit jury to establish his innocence.</p> <p>7. Neither the fact that one of the grand jurors was the husband of the prosecuting witness; nor that other members of the grand jury were active outside of the grand jury in seeking evidence to secure an indictment; nor that members of the grand jury were personal and political enemies and business rivals of the accused; nor that some of the grand jurors had before being sworn expressed hostility to the accused and declared him guilty; nor that unsworn statéments and publications were considered by the grand jury, do not constitute grounds for quashing an indictment on a plea in abatement.</p>

<p>GIFTS INTER VIVOS AND CAUSA MORTIS.</p> <p>Gifts — Inter Yivos and Causa Mortis — Bonds Given by One Sister to Another — In Expectation of Death, but with a Condition Attached.</p> <p>Bonds delivered by an invalid to her sister in expectation of death, but on condition that the interest he paid to her and the bonds be returned to her in the event that she needed them constitutes a gift causa mortis, where the donor did not cancel the gift and died from the malady from which she was then suffering, although her death did not occur until six months thereafter.</p>

<p>CONSTRUCTION OF A WILL.</p> <p>Wills — Extrinsic Evidence in Aid of Construction of — Ambiguity Solved by Knowledge of Extraneous Pacts — Words of Description and Worlds Constituting a Separate Bequest.</p> <p>1. The rule that extrinsic evidence is admissible in aid of the construction of a will, permits of the introduction of evidence as to the blood relationship existing between the devisees, and also of a previous will after which the one in hand was copied.</p> <p>2. An estate was devised in equal parts to A, B, C, D, E, F, G, heirs of the body of Rebecca H. Taylor pe<r stirpes and not per capita, G, H, and I.</p> <p>H-eld: It having been shown that E, P, and G are heirs of Rebecca H. Taylor, the phrase “heirs of the body of Rebecca H. Taylor per stirpes and not per capita must be construed as constituting a separate bequest, and not to be descriptive of E, P, and G, who' each take a separate share of the estate and also a share jointly.</p>

<p>EXTRADITION PAPERS VOID WHEN SIGNED IN BLANK.</p> <p>Fugitive front Justice — Extradition of — Papers Having Reference to, Must he Examined hy the Governor Personally — Power to Issue Warrant can not he Delegated — Sections 95, 96 and 97 — Habeas Corpus — Criminal Law.</p> <p>When a warrant of extradition is signed by the Governor in blank and is afterward filled out by his secretary writing therein the name ■ of some accused person,' it is a nullity;- but the Governor may issue a valid warrant on the same paper.</p>

<p>ABATEMENT AND REVIVAL OF JUDGMENT.</p> <p>Judgments and Decrees — Grounds for Vacation cure Cumulative — Effect of Consent to Vacation and Retrial After Term of Cause Once Reduced to Judgment — Facts Constituting Consent to Vaoation — Determination of Validity of Defense — Laches and Estoppel.</p> <p>1. The provisions of Section 5354, Revised Statutes, with reference to the vacation or modification of judgments after term, are cumulative merely and not exclusive.</p> <p>2. Consent by counsel to the opening up of a judgment is a waiver of a formal finding by the court that the defense about to be offered is a valid one within the meaning of Sections 5359 and 5360.</p> <p>3. After consent by counsel for the payee to the vacation of a judgment on promissory notes, a request to charge the jury not to undertake to determine the validity of the notes comes too late when all the evidence has been heard, and the right to question the action of the court in vacating the judgment is lost by laches.</p> <p>4. Courts may, after term, redocket and retry a cause once tried and reduced to judgment, if the parties so request and the subject-matter is within the province of the court to decide; and neither party may withdraw his consent after the new trial has been entered upon.</p> <p>5. It is sufficient to determine the validity of a defense as a matter of law from the statement pleaded, and the existence of an actual defense to the judgment sought to be vacated need not be established before the order of vacation is granted.</p> <p>6. The successive steps in proceedings to vacate a judgment after term, under Sections 5354, 5359 and 5360, are: (1) an application filed in the original case, stating the ground of the vacation and the defense, upon which .summons shall issue, and no further pleading is required; (2) hearing on the application; (3) if ground for vacation is found to exist and a valid defense is averred in the .application,' the judgment should be vacated, but the -lien of the original judgment saved by suspending the order of vacation pending trial bn the merits; (4) a pleading setting up the defense, and a trial upon, the issues then made as if no judgment had been rendered; (5) the rendering of a judgment which shall either restore the old judgment or extinguish it, as the facts found on the trial demand.</p>

<p>PARTITION OF ANCESTRAL PROPERTY.</p> <p>Descent of Ancestral Property — Partition of — Releases in the Form of Warranty Deeds — Ancestral Character of Property not Changed Thereby — Widow of Parcener Dying Without Issue Takes Life Estate Only — Estoppel.</p> <p>Property does not lose its ancestral character by reason of the fact that in making a partition thereof the parceners gave releases in the form of deeds of general warranty for the sole purpose of . effecting an assignment to each of the parties; and upon the death of one of the parceners without issue, his'widow takes a life estate only, the fee going to brothers and sisters of the decedent.</p>

<p>CONSTRUCTION OF THE STATUTE GOVERNING THE SALE OF DRUGS AND POISONS.</p> <p>Retailing of Drugs, Compounding of Prescriptions, Sale of Poisons— Statutory .Regulations with Reference to — Prosecutions Under Section ¼05 — What the Statute Prohibits — Jurisdiction of the Magistrate — Character of Proof Required — Affidavits CJiarging the Offense — Criminal Law.</p> <p>1. Section 4405, Revised Statutes, governing the sale of drugs, poisons, etc., embraces two offenses: (a) prohibiting a “proprietor or man- ■ ag’er,” not a legally registered pharmatist, to open or conduct .a pharmacy without having in charge a legally registered pharmacist; and (6) prohibiting any person not a legally registered pharmacist, or a legally registered 'assistant pharmacist under a legally registered pharmacist, to cojppound, dispense of sell any drug, poison, etc.</p> <p>2. Unless the accused waive a jury in writing, the magistrate has no authority to punish, and can only bind the prisoner over to the proper .court.-</p> <p>3. Such magistrate being only an examining officer, strict proof is not required, it being only necessary to show that the offense has ' been committed, and that there was probable cause to believe the prisoner guilty.</p>

<p>CRIMINAL PROSECUTIONS UNDER THE STATE BANKING LAW.</p> <p>Criminal Law — Indictment Charging Officers of a State Bank with Embezzlement of Bank Funds — Penal Section of the Free Banking Act not Applicable to Banks not Organized under that Act — Section 3821-85 — Review of Bank Legislation in Ohio.</p> <p>Section 30 of tbe act entitled “An act to authorize free banking,” passed March 21, 1851, and amended in 76 O. L., 72, enumerating and defining certain acts of officers and others “of any banking company,” as penal, although worded in general language is. limited in its operation to banks organized under that act.</p>

<p>RECEIVER. FOR. PROTECTION OF A SURETY.</p> <p>Receiver — Jurisdiction for Appointment of — May he Named on Application of a Surety, When — Pleading—Insolvency—Attachment— Section 55S9 — Words and Phrases.</p> <p>1. An allegation that a defendant is probably insolvent is equivalent to and probably stronger than the statutory phrase "in imminent danger of becoming insolvent,” and is sufficient to sustain an order appointing a receiver.</p> <p>2. A court has jurisdiction under the rules of equity and in view of the provisions of Section 5539 to appoint a receiver for the protection of a surety for rent which has accrued and will accrue under a lease, who further alleges that he is a stockholder of the defendant company and also a large creditor and many attachment suits have been commenced against the company in various places and others are threatened.</p>

<p>PROSECUTIONS FOR. SELLING LIQUOR ON SUNDAY;</p> <p>Criminal Law — ¡Selling Intoxicating Liquor on Sunday — Prosecutions " for First-Offense and for Second Offense — Plea in Bar on Ground of 'being Twice Placed, in Jeopardy -for the Same Offense — Section Ji36JrB0. ■</p> <p>A plea of guilty of selling intoxicating liquor on Sunday in an action whicli was .prosecuted as a first offense, but might have been prosecuted as a second offense, is, a bar to a subsequent prosecution of the same defendant in another court for the same sale charged as a second offense.</p>

<p>CHARGING FALSE PRETENSES BY BANK OFFICIALS.</p> <p>Criminal Law — False Pretenses — Charging of, Against Bank Officials— Meaning of the Words “Invest” and “Speculate” — Office of the Innuendp.</p> <p>Tile charge, in an indictment against officers of a bank, that they had been guilty' of faise pretenses, in that -with intent to cheat and defraud they induced and procured persons to deposit in the bank by falsely representing that “we never speculate in stocks; we loan money on real estate; it is solid rock security; we require income producing property,” does not bear the meaning ascribed by innuendo, that the bank did not invest its money in stocks and lpaned its money only on security' of income producing real estate, nor ' does not follow from th'e1 statement upon which the charge is based that tie' bank -loaned all its money on real estate, nor. does it appear whether the statement applied to the bank or to the accused individually. • . ,</p>

<p>ATTACHMENT FOR. MONEY LOST IN A BUCKET SHOP.</p> <p>Attachment — In Action for Money Lost in Scheme of Chance — Constructive Contracts — Pleading—Sections 5581, 1/869 and 1/872.</p> <p>An order for attachment without bond will lie against a defendant for eign corporation in an action for the recovery of money lost in a scheme of chance, commonly called a bucket shop.</p>

<p>PROCEEDINGS IN ATTACHMENT BEFORE JUSTICE OF THE PEACE.</p> <p>Attachment — Affidavit Charging Intent to Defraud — Failure of Evidence to Support Charge — Bill of Exceptions — Endorsement of Bill 6y Justice in Irregular Manner — Extension of Time Within Which to File Bill — Section</p> <p>1. An interlineation in the bill of exceptions from the court of a justice of the peace, purporting, to overrule the motion to discharge the attachment and extending the time for filing the hill of exceptions, 'together with the pasting on the bill of a. piece of paper on which is written the apparent endorsement and allowance of the bill by the justice, will be presumed by a reviewing court to have been- placed there in good faith and at the time stated, as against hints by counsel that these additions were made at a later date.</p> <p>2. Evidence that the constable, when he levied the attachment, simply marked certain goods as “attached” but made no further effort to take possession of them, notwithstanding the expressed willingness of the defendants that sufficient goods should he taken to satisfy the claim, does not support the charge in the affidavit that the defendants were about to dispose of their property with intent to defraud their creditors, although it appears that the defendants did soon afterward make an assignment for the benefit of their creditors.</p>

<p>STATUTE OF LIMITATIONS AS TO STREET ASSESSMENTS.</p> <p>Assessments — For Street Improvement — Application of the Statute of Limitations — Certificate hy Auditor — Injunction.</p> <p>An injunction restraining the certification of assessments to the county auditor, under Section 2297, Revised Statutes, operates 'to suspend the power to so certify only for the time the injunction is in force, and the period which may have elapsed in which the certification could have been made prior to the granting of the injunction must enter into the computation in determining whether the two years limitation has expired. .</p>

<p>LIABILITY OF LODGING HOUSE KEEPER. FOR. VALUABLES BELONGING TO GUESTS.</p> <p>Inns and Innkeepers — Lodging House is an Inn, When — Proprietor of Lodging House Liable for Valuables Deposited with Him for Safekeeping and Lost — Section ⅜⅜87.</p> <p>The proprietor of a lodging house, in connection with which meals are served and a har is operated, is an innkeeper, and a patron, paying a stipulated sum for hoard and lodging, of such a house is a guest; and where the patron deposits valuables with the proprietor for safekeeping and they are lost, the proprietor Is liable ■therefor.</p>

<p>PROSECUTION OF SALOON KEEPERS UNDER. THE SUNDAY CLOSING LAW.</p> <p>Sunday Closing and Sunday Selling — First Offense and Second Offense —Section J/SSJf-20 Construed — Criminal Lmw. ''</p> <p>Inasmuch as the unlawful sale of intoxicating liquors on Sunday, and unlawfully allowing a place where intoxicating liquors are sold to remain open on Sunday, are merely different forms of committing the same legal offense, the unlawful sale of intoxicating liquors on Sunday can he charged as a second offense, when the first conviction relied upon was for unlawfully allowing a saloon to remain open on Sunday.</p>

<p>INSPECTION OF SCHOOL HOUSES AS TO FIRE PROTECTION.</p> <p>Constitutional Law — Fire Protection for School Souses and Other Buildings for Public Assemblage — Inspection with Reference to— Police Power to Compel Proper Precautions — Taking of Property Without Sue Process of Law — Details as to Protection — Rights of Board of Education Against Arbitrary Action in Ordering Schools Closed — Injunction—99 O. L., 832 — Fourteenth Amendment.</p> <p>1. The act of April 28, 1908 (99 O. L., 232), enlarging the duties of the chief inspector of work shops and factories by requiring inspection of school houses and other places of public assemblage, and authorizing him where means for safe and speedy egress are insufficient to specify such appliances, additions or alterations as are necessary to insure proper protection and require that they be installed is not a provision for the taking of property without due process of law, but is a mere requirement that such property be used in a lawful way, and is a constitutional and valid enactment.</p> <p>2. The provision of this act which authorizes the closing of school houses and other public buildings pending the installation of such appliances for protection against fire as the chief inspector of work shops may have ordered, is not in excess of the police powers of the state.</p> <p>3. The duty of determining what appliances and alterations are necessary for protection and safety of persons against dangers from fire in public buildings and school houses may properly be delegated to inspectors as prescribed in this act; and the fact that details as to such. inspection are not fixed, but are left to be worked out by the administrative officers, does not invalidate the act.</p> <p>4. While the right is not open to a state agency, as it may he to a private property owner, to claim exemption from the operation of an act prescribing duties to be performed by another state agency, yet a board of education would have the capacity to bring suit to enjoin oppressive and arbitrary acts whereby school houses are closed and school children' deprived of the advantages of the public schools.</p>

<p>OCCUPATION OF SIDEWALK WITH STAND FOR VENDING WARES.</p> <p>Foreign Corporation — Right of, to Bring Suit as a Tax-Payer — Municipal Corporations — Power to License — Neither City nor Abutting Property Owner can Authorize Use of SidewalTc by Vendors - — Sections 1538-668 and 1538-327.</p> <p>1. Where a foreign corporation is a tax-payer, it has the same authority under Section 1778 (1536-668) as a resident corporation or individual to bring an action to enjoin a municipality from abuse of its corporate powers.</p> <p>2. The general licensing powers conferred upon municipalities, by Section 2669 (1536-327) do not render valid an ordinance whereby the municipality permits a peddler, under the guise of a license, to occupy a portion of th.e inside of the sidewalk by a structure built against the wall and used by him for the purpose of vending his wares.</p> <p>3. The fact that such a peddler’s stand, has been maintained for a period of' seventeen years does not create any right in the sidewalk, nor relieve the municipality from the duty of clearing the sidewalk of such obstruction; nor does the fact that the structure is maintained under an agreement with the property owner create any right for such occupancy of the sidewalk as against the rights of the general public.</p>

<p>SET-OFF ON CLAIM OF INSOLVENT BANK.</p> <p>Banks and Banking — Receiver—Set-off—Promissory Note — Rights of Depositor.</p> <p>The maker of a promissory note held hy the receiver of an insolvent bank has no right to set off a deposit in the bank standing in his name as executor.</p>

<p>VALIDITY OF CONTRACTS FOR. EXCLUSIVE EXCHANGE OF BUSINESS BETWEEN TELEPHONE COMPANIES.</p> <p>Telephones — Contracts for Exclusive Exchange of Toll Business — Not In Restraint of Trade — Combinations of Telephone Companies Distinguished from Combinations of Gas and Street Railway Companies — Evidence as to Circumstances Surrounding Making of Contract Admissible — Monopoly—Mutuality—Injunction—Sections 3^55, 3410 and 3411.</p> <p>1. In an action to determine the validity of a contract between two telephone companies, evidence of the condition of the telephone business within the 'field in which the companies were -operating is admissible for the purpose of showing the tendency and effect of the agreement which was made.</p> <p>2. Where the prayer of the petition in such a case is for an injunction restraining the defendant from violating the contract by routing its business over lines belonging to a third company, instead of sending it over the lines of the plaintiff, the action is not open to the objection that it is an attempt to enforce a contract by mandatory injunction and will lie.</p> <p>S. Inasmuch as combinations of telephone exchanges and telephone lines are necessary in order to afford proper facilities for the public, and the Legislature has recognized this necessity by provision for mergers and combinations of súch companies, a contract between two telephone companies which provides for an exclusive interchange of business must be distinguished from contracts effecting mergers of gas or street railway companies, and is not void because of'a tendency to create a monopoly or subversive of the public interest and benefit; and where a system of lines has been. built up on the faith of such an interchange of business, the claim on the part of the defendant company that the contract is in restraint of trade and should be abrogated is not well founded.</p>

<p>TESTIMONY BY A DEVISEE IN A WILL CONTEST.</p> <p>Wills — Action to Contest — Charge of Court as to Preponderance of Evidence and Prima Facie Case — Admission of Deeds in Evidence —Failure to Prove Execution of Deed — Right of Devisee to Testify —Section 5248-8.</p> <p>1. Deeds executed by a testator may be admitted in evidence in an action to set aside bis will, where the purpose is to throw light on the mental capacity of the testator by⅜showing his method of transacting business and the nature of the business transacted by him at about the time of the making of the will.</p> <p>2. A plaintiff in a will contest, although a son of the testator and a devisee under the will, is a competent witness to testify to acts of the testator and the manner in which those acts were performed.</p>

<p>PARTITION WHERE TITLE TO THE PROPETTY IS IN DISPUTE.</p> <p>Partition — Now a Part of the Code — Title in Dispute to Property Involved — Jurisdiction—Statute of Limitations — Necessity for Appointing a Trustee to Malee Title — Condemnation of Land for Street — Parties—Adverse Possession of Municipality — Rights of Unborn Issue of Life Tenants in Tail — Law and Equity.</p> <p>1. Under the law of Ohio a court is not ousted from jurisdiction in a partition case by the filing of a petition denying title and setting up the statute of limitations, nor is it necessary that the case bé held pending a determination of the questions of title in a court at law, but the court has full authority under its equity powers to itself determine the disputed questions of title.</p> <p>2. Where the life tenants of an estate tail under a will which provided that the remainder should go to his or her issue for life, with the next remainder in tail to unborn issue, where not made parties to an action for the appropriation of land for street purposes, the adverse possession of the municipality for more than twenty-one. years does not deprive such subsequent life tenants of title until the requisite period after their right of entry accrued.</p>

<p>STATE COURTS WITHOUT JURISDICTION OVER. INTERSTATE FREIGHT RATES.</p> <p>Reasonableness of Freight Rates — Proposed Increase in Rates on Interstate Shipments — Gan not be Temporarily Enjoined by a State Court — Shipping Contracts to be Performed Within and Between States — Extent of Federal Judicial Power — Relief Which may be Grhnted by State Courts — Injunction—Discrimination—Jurisdiction — Sections 244-11 and SS7S-1.</p> <p>A state court is without jurisdiction to temporarily enjoin the putting into effect of an increase in freight rates on interstate traffic, pending a determination by the Interstate Commerce Commission of the question of the reasonableness of the proposed rate.</p>

<p>UNFAIR. COMMENT ON THE EVIDENCE.</p> <p>Negligence — -7n Driving in Front of an Electric Gar — Duty of Motorman to have Eis Gar Under Control — Charge of the Court — Unfair Comment on the Evidence to the Jury — Exceptions to Action of the Court — Sufficient Warning to the Jury.</p> <p>1. The salutary rule that error will be presumed, where a trial judge fails to take any action with reference to unfair comment on the evidence by counsel, does not apply to a mere desultory remark of the character made by counsel in this case.</p> <p>2. Where objection is made to a statement by counsel to the jury, and the court ignores the objection, an exception' must be reserved if counsel desire to take advantage of the alleged error, and if the . court failed to rule, the exception must still be noted.</p> <p>3. When the court states that a document offered in evidence is ruled out, and directs the jury not to consider “any testimony out of the case" — that document or anything relating to it”- — the jury is-fully cautioned with regard to it, and the court has done all that it can fairly be asked to do. •</p> <p>4. It is not error to charge that where the jury have found that both the plaintiff (driver of a cab) and the motorman of the car which collided with the cab were negligent, they may then take into consideration whether the motorman had his car under control, to such an extent that he could have avoided the accident after he saw, or by the exercise of ordinary care could have seen, the vehicle on the track.</p> <p>5. Nor is it error to charge that “it is not negligence in the driver of a vehicle to attempt to ■ cross a street car track ahead of an approaching car, when the car is so far away that by the exercise of reasonable care it might have been stopped before reaching the place of the crossing,” where the circumstances of the case render such a charge appropriate.</p>

<p>VALIDITY OF ASSIGNMENT OF PART OF A CLAIM.</p> <p>Assignment — Claim Includes Only Pari of Indebtedness Due .Assignor —Remedy of Assignee — Daw and Equity.</p> <p>1. An assignment of a claim is not rendered invalid by reason of the fact that it includes only a part of the amount due from the debtor to the assignor.</p> <p>2. But the remedy of the assignee of such a claim is not in an action at law, hut in an action in equity.</p>

<p>SERVANTS ASSUME RISK OF INJURY FROM SIMPLE APPLIANCES.</p> <p>Master and Servant — Assumed Risk — Promise to Supply New Instrumentality Equivalent to Promise to Remedy Defect — Application of Promise to Simple Tools and Appliances.</p> <p>1. A promise by a master to supply a new instrumentality in place of one from which the servant apprehends danger is of the same effect in law as a promise to repair a defect in an existing instrumentality, the use of which is to be continued.</p> <p>2. But in the case of simple tools and portable appliances (such as a step-ladder), where obvious defects are as perfectly understood by the servant as the master, the risk from their further use is assumed; and a promise to repair or replace such a defective tool or appliance, as distinguished from intricate machinery, the use of which requires great skill and care, does not shift the assumption of the risk from the servant to the piaster.</p>

<p>ACTION BY A TRUST COMPANY TO RECOVER COMPENSATION FOR. LAND WRONGFULLY TAKEN BY A RAILWAY COMPANY.</p> <p>Trusts — For the Care and Management of Property — Legal Title May be Devised for That Purpose, Where the Trustee is a Domestic Trust Company — Foreign Trust Company may Execute such a Trust in this State, When — May Bring Action for Land Unlawfully Taken by « Railway Company — Rights of a Tenant in Common — ■ Notice of Suit — May be Made Valid, and Validity Relates Back, When— Words “Owner" and “Doing Business" Defined — Abatement Sections 6448, 6411, 148⅞ 3821&, 5970, 5942, 5937, 5987, 3283 and 3284.</p> <p>1. Where a domestic trust company, under the provisions of Section 3821S, Revised Statutes, is appointed trustee in a will “creating a trust for the care and management of property” in this state, the devisor may properly devise to such trustee the legal title to land in trust to exercise such care and management.</p> <p>2. A foreign trust company appointed trustee of land in this state and given the legal title thereto in trust, by a will probated in another state, and of record here, may, upon giving bond here, upon established principles of comity, execute such trust to the same extent as a domestic trust company is authorized to do by Section 3821S, Revised Statutes.'</p> <p>3. Domestic and foreign trust companies having the legal title in trust to real estate in this state may, in the exercise of proper care and management thereof, bring a proceeding under Section 6448, Revised Statutes, to recover compensation for such land when unlawfully taken by a railroad company.</p> <p>4. Where notice is served and suit brought under Section 6448, Revised Statutes, by a trustee appointed in a foreign will before record of such will here, and before bond given, but afterwards, before hearing, such record is made and bond given, such subsequent compliance with the statute will relate backward and give validity to such notice and suit.</p> <p>5. The bringing of a suit by a foreign trust company trustee under. a will probated in another state, and of record in this state, is not “doing business” within the meaning of Section t48r7,, Revised Statutes, requiring a certificate from the Secretary of State as directed fcy such section. ,</p> <p>6. A tenant in common is an. “owner” of land within the meaning of Section 6448, Revised Statutes, and if ousted by a railroad company co-tenant, may sustain an action for compensation and damages under that section against such co-tenant.</p> <p>7. A pending suit to recover the possession of land together with the rents, issues, and profits thereof, is not a bar to a proceeding to recover compensation for such land under Section 6448, Revised Statutes.</p>

<p>PROCEEDINGS FOR. ANNEXATION OF TERRITORY TO A MUNICIPALITY.</p> <p>Annexation — Transcript of Proceedings Must he Piled with Oity Clerk —Approval of Ordinance Without Validity — Where Mayor has a Consideradle Financial Interest at Stake — County Commissioners — • Misinterpretation of Judicial Functions of — Injunction—Municipal Corporations — Construction of Statute Relating to Annexation— Organization of Villages and Ilamlets.</p> <p>1. The requirement of Section 1590 (1536-32) et seq., with reference to filing with the municipal clerk the transcript of the proceedings by the county commissioners upon an application by citizens ■ for the annexation of territory to the municipality, apply under Section 1599 (1536-41) to the annexation of territory upon application of the corporation itself, and injunction will lie to prevent a county recorder, to whom such proceedings have been certified, from making a record thereof.</p> <p>2. Under Section 125 of the municipal code of 1902, clothing mayors with the impartial and disinterested legislative function of approving , or vetoing ordinances, the approval by a mayor of an ordinance authorizing annexation to a municipality of territory in which he has a considerable financial interest is clearly against public policy and invalid.</p> <p>3. County commissioners exercise a judicial function in acting upon an application for the annexation of territory 'to a municipality, and where such an application is granted merely because of the • passage of an ordinance authorizing the annexation, the commissioners misinterpret and fail to properly exercise their judicial functions, and injunction will lie to prevent the recording of an annexation thus effected; and especially is this true if the ordi•nance was passed at the suggestion of the commissioners and for the purpose of throwing on council the responsibility for a project to which they were themselves opposed.</p> <p>4. The granting of an injunction to restrain recording of the annexation of territory to a municipality, because of failure of the county commissioners to give judicial consideration to the questions and interests involved, does not have the effect under Section 1592 (1536-34) of barring further proceedings with reference thereto.</p>

<p>DIVERSION OF A HIGHWAY IN LOCATING A RAILWAY.</p> <p>Roads — Diversion of Highway for the Purpose of Securing a Better Grossing of Railway — Right to Re-locate Highway Governed Toy Public Convenience — Necessity for Diversion of Road is for the Gourt — Diversion may be Made Permanent — Section</p> <p>1. Authority is conferred by Section 32S4 upon a railroad company to divert the course of a highway for the purpose of making practical the crossing of the highway by an overhead bridge, where the change in the course of the highway does not impair its usefhlness.</p> <p>2. The question of the necessity of such a diversion of a highway is for the court to decide, and in determining it the convenience of the whole public, including those using the railway as well as the highway, must be considered.</p>

The authorities cited on behalf of the State in support of the demurrer .to the answer in this case were: As to the right of the state to esercise this police power in the regulation of the speed of interstate trains within city limits, 161 U. S., 677; in the regulation of rates within state limits, 95 U. S., 155; in establishing a rule of evidence, 169 U. S., 311; in enforcing track connections between railways, 179 U. S., 287.

Five of the directors of the J. M. Schott & Sons Company insured their lives in the Security Mutual Life Insurance Company, for the benefit of the corporation if in existence when death should occur or at the end of twenty years, 'Otherwise payable to the .executors or administrators of the persons whose lives were insured'. The premium was to be paid by the company, and was so paid for the first two years hy the company's-notes.

<p>MANDATORY INJUNCTION TO COMPEL THE EXERCISE OF A GAS FRANCHISE.</p> <p>Corporations of a Public Nature — Duties of, Oan■ not be Abandoned, When — Qas Company — Nature of Contract with State and Municipality — Regulation of Price of Qas — Franchise—Forfeiture of— Mandatory Injunction — Ultra Vires Acts.</p> <p>1. Where a public service corporation, like a natural gas company, authorized to supply gas to a considerable territory, undertakes to serve a municipality within that territory, it is bound by the obligations of two contracts — one with the state as set forth in, its articles of incorporation, and the other with the municipality which it has undertaken to serve' and which is embodied in the ordinance granting the right to occupy the streets; and Its contract with the municipality and with the state for the inhabitants of such municipality, can not be abandoned without violation of its contract with the state.</p> <p>2. Such a corporation, so long as it continues to exercise and enjoy . the franchise of a gas company bestowed by the state, can be compelled by mandatory injunction to continue to furnish gas to a municipality with which it has entered into contract relations to perform that service.</p> <p>3. While power to regulate the price at which gas shall be furnished is vested in council, it is a power which must be exercised in good faith for the purpose for which it was given; and bad faith on the part of council in fixing an inadequate price or in making unreasonable and arbitrary regulations is a proper subject of inquiry, when put in issue.</p>

<p>ACCUSED PERSON NOT IMMUNE FROM SER.VICE OF CIVIL PROCESS.</p> <p>Summons — Service of Process in a Civil Action Upon an Accused Person — Privilege from Arrest — Sections 5J/57 and 57/59.</p> <p>Service of process may tie had in a civil action upon an accused person who is voluntarily seeking a hearing before a grand jury in a county other than that of his residence.</p>

<p>LEGALITY OF CONTRACT FOR. CONSTRUCTION OF SCHOOL BUILDING AT A COST IN EXCESS OF BOND ISSUE.</p> <p>Schools — Contract for Building School Souse — Cost in Excess of Bond Issue — Permission to Change Bid Renders Contract Void — Discretion of School Board — Injunction Against Unwarranted Exercise of — In the Matter of Submitting Propositions for Bond Issues— Money Paid on Executed Illegal Contract can not be Recovered— Sections 28346, 3991, 3988, 2303 and 1536-205 — Bids and Bidding.</p> <p>,1. A contract for the building of a school house, at a cost in excess of ' ' the amount raised for that purpose from an issue of bonds, is not illegal'and void for want of authority on the part of the board of education to make such a contract after having underestimated the amount of money needed.</p> <p>2. A contract for the building of a school house, awarded to a contractor who has been permitted to change his hid by omitting various items and thus reducing the aggregate cost to the amount realized from the sale of bonds, is a contract made without notice or competition and is illegal and void under Section 3988.</p> <p>3. Failure of the auditor or clerk to first certify that the money necessary to meet the obligations assumed under such a contract is in the treasury to the credit of- the fund from which it is to be drawn, or has been levied and is in process of collection and has not been appropriated for any other purpose, renders the contract void under Section 2702 (1536-205).</p> <p>4. When a proposition for a bond issue for the erection or equipment of a school house has been submitted by the hoard of education to the voters of the district three different times and each time it has been voted down, further submission of the proposition may be enjoined as an abuse of discretion and authority on the part of the board. .</p> <p>5. Public funds paid out on a contract, completed in good' faith and . free from fraud and collusion, can not he recovered hack at the instance of a tax-payer, notwithstanding the contract was illegal and void.</p>

<p>ASSESSMENT FOR. TOWNSHIP DITCH IN EXCESS OF BENEFITS.</p> <p>Ditches — Assessment -for, in Excess of Benefits- — Where Ditch was Made by Township Trustees — Remedy—Jurisdiction—Injunction —Sections 6708 and Wl.</p> <p>Where the assessment for a township ditch is in excess of the benefits conferred, its collection may be enjoined, notwithstanding the trustees had jurisdiction to order the improvement and all the proceeding's were regular.</p>

<p>COLLATERAL ATTACK ON APPOINTMENT OF EXECUTOR.</p> <p>Executors — Finding of, as to Legality of an Appointment Must T>e Presumed — Appointment of a Trust Company can' not be Collaterally Attached — Jurisdiction of the Probate Court — Its Inherent Power — Verity of its Record — De Facto Executors.</p> <p>The probate court has jurisdiction to hear and determine the question whether or not a trust company is legally competent to perform the duties of an executor, and where this jurisdiction has been exercised the determination by that court of the competency of the appointee can not be collaterally attacked.</p>

<p>TESTING THE VALIDITY OF A COUNTY LOCAL OPTION ELECTION.</p> <p>Liquor Laws — Validity of Election Held Under the Rose. Law — Duty of County to Defend Election — And Right of County to Prosecute Error — Calculation of Time for Holding Election — Section J/951 Applicable.</p> <p>1. The responsibility of defending in the probate court the validity of an election, held under the Rose county local option law (99..0. L., 35), rests upon the county in which the election was held, and it is the duty of the county to appear by its attorney for the single purpose of making a defense, and without regard as to whether the result of the election was for or against local option; but an elector may appear personally or by counsel at the same time and take part in the defense.</p> <p>2. Where such a course becomes necessary the defense of the election may be continued by the county by the prosecution of error to the common pleas court under the provisions of Section 6708.</p> <p>3. The provisions of the county local option act that an election shall be held “in not less” than twenty days from the presentation of the petition, does not create an exception to the provision of Sec- - tion 4951, that the time within which an act shall be done is to be computed by excluding the first and including the last day.</p>

<p>PROCEEDINGS TO TEST THE ROSE COUNTY LOCAL OPTION LAW.</p> <p>Constitutional Law — Rose County Local Option Laio Valid — Parties Defendant — Injunction not the Proper Proceeding — Adequate Remedy at Law — Constitutional Liberties — Inviolability of Private Property — Delegation of Legislative Power — Uniform Operation — Approval by Other Authority than the General Assembly — 99 O. L., 85.</p> <p>1. Private citizens who are members of an organization which has as its object the enforcement of the Rose county local option law are not, by reason of that fact, rendered proper defendants to an action to test the constitutionality of that law.</p> <p>2. Injunction will not lie to prevent enforcement of this act, as an adequate remedy at law is afforded in a criminal prosecution under the act.</p> <p>3. This act is not unconstitutional as a denial of constitutional liberty in making it possible to prohibit the liquor traffic within certain territory; or because the act violates the. principle of the inviolability of private property; or because it is a general law without uniform operation; or in contravention of the principle that no act shall “take effect” upon the approval of any other * authority than the General Assembly,</p>