Volume 8 — Ohio Nisi Prius Reports

<p>(1) . The publication of the notice provided for by section 2502, Revised Statutes, is sufficiently made by the publication of such notice in one daily paper on the same day of the week for three consecutive weeks.</p> <p>(2) . The calling of a vote on the passage of an ordinance of a general or permanent nature, and the voting thereon, without said ordinance having been read on three different days, or such reading properly dispensed with, is a vain and useless act, and such ordinance could not be defeated by a vote taken in that manner.</p> <p>(8). “Under the governmental act for the oity of Columbus an ordinance which had been read on two separate days before the regular election for oouncilmen may, after the annual organization of the council following said election, be read a third time and passed. Unfinished business of the council is not dropped with each council election.</p>

<p>(1) . The mere fact of a sale of chattel property on installments is not sufficient to bring such a sale within the terms of the statute (section 4155-2, R. S.) relating to conditional sales; there must be evidence that the title is to remain in the vendor. The Speyer case distinguished.</p> <p>(2) . A judgment recovered before a justice of the peace for balance due on a purported chattel mortgage covering goods the title to which it is claimed by the vendee remained in the vendor, is res adjudicata in a subsequent suit to enjoin the sale of the goods upon execution.</p>

<p>(1) . Courts can not by injunction interfere with public olections. An election by the voters of certain territory in the township which it is proposed to incorporate as a hamlet can therefcre not be interfered with by injunction.</p> <p>(2) . Ihe same remedies are given interested parties in proceedings to incorporate a hamlet had before township trustees as may be had before county commissioners for the incorporation of hamlets out of “allotted” territory.</p> <p>(3) . Sec. 1561c, R. S., gives to persons interested in the proposed incorporation of certain territory in a township as a hamlet, the right to petition the court of common pleas for a review of the. proceedings had for such incorporation by the township trustees, on the grounds enumerated in such section, and for an injunction against the recorder to restrain him from making the record thereof and certifying the transcript required by the statute. In view of these statutory remedies an injunction to re strain the elecLon by the voters of the respective territory to be incorporated ordered by the township trustees can not be granted.</p> <p>■(4). Where a petition for the incorporation of certain territory as a hamiet is filed with the clerk of the township trustees, and subsequently on the same day another petition for the same purpose, but differing from the first in boundaries of the proposed hamlet, is presented to the trustees at their session on that day, and both petitions were before them at that session, the trust ees, in the absence of fraud, have the discretion to adopt a resolution for an election in accordance with the petition filed last.</p> <p>'(5). The statute authorizing the incorporation of hamlets under proceedings before township trustees is not unconstitutional as a delegation of power by the legislature.</p>

<p>Heard on exceptions to the report of 'the special master and referee.</p>

<p>(1) . An act of the general assembly that extends the jurisdiction of the police court to hear and finally determine all misdemeanors committed within the limits of the county in which the court is situate, which is not enacted by a two-thirds vote of the members of each house of the general assembly, is unconstitutional and void.</p> <p>(2) . An act of the general assembly that gives jurisdiction to the police court to hear and finally determine all misdemeanors committed within the limits of the county in which such court is situate, and which excludes, in cases where imprisonment is a part of the penalty, from jury service the citizens in that part of the county over which the jurisdiction is ex-tendedle in contravention of the constitutional right of a fair and impartial right of trial by jury of the county or district in which the offense is alleged to have been committed.</p>

<p>(1) . Under the decisions of our supreme court, the fact that a railroad train runs at an unlawful rate of speed at a public crossing does not of itself constitute negligence. There must be some other element entering into the relationship and the situation to make an unlawful rate of speed negligence.</p> <p>(2) . Where there are data furnished by which the rate of speed can be determined,the evidence upon the proposition whether the train was run at an unlawful rate of speed will properly go to the jury. But if there is not, then it is a question of law for the court.</p> <p>(3) . The testimony of a witness that the train was “fast”, in the absence of testimony what the usual rate of speed was, is not such evidence as furnishes a criterion or data by which the judgment of the jury can be applied and the rate of speed determined, as a basis for the charge of negligence, even if there are other facts and circumstances connected with the crossing which would make it a matter to go to the jury upon.</p> <p>(4) . The statute makes the failure to , blow the whistle within the distance from a public crossing prescribed by the statute a ground for the recovery of all damages caused by such failure. But where within the statutory distance from the street crossing in question there was another public crossing, so that of necessity, in order to comply with the law, the minimum distance at which the whistle could be blown for the crossing in question would be beyond the other public crossing; such fact puts the plaintiff upon proof that a whistle blown beyond the other crossing was not blown between eighty and one hundred rods from the crossing in question in this case in order to establish the fact that the whistle was blown outside of the statutory limits for the crossing at which the plaintiff’s intestate was killed, and within the limits for the other crossing.</p> <p>(5) . Where it is a question whether the whistle was blown for a crossing where another crossing is within the distance, prescribed by law for blowing the whistle for a crossing, as the minimum distance at which the whistle must be blown for a crossing is eighty and the maximum one hundred rods, it cannot be proven by mere opinion of witnesses, but it must be shown that the train was within those limits and the whistle was not blown in order to establish the fact that the law was not complied with.</p> <p>(6) . While the engineer of the train is held to ordinary care to ascertain if a person at a public crossing is in danger, and by the exercise of that care to save him if he can, it is the duty o'f the person thus on the crossing, to exercise ordinary care on his part to avoid injury when he finds himself in a critical place, or could ascertain that he was in a place of imminent dangei by the exercise of ordinary care. Those two propositions form the complement of the law upon that subject. (The judge here reviews the facts of the case of L. S. & M. S. R. R. Co. v. Schade,which was originally tried before him, and was affirmed by the circuit court, IB C. 0., 424, and by the supreme court, 38 Bull., 259.)</p> <p>(7) . A man has a right to rely upon the performance of the duties which the law imposes upon railroad companies at crossings, or any other place, whenever it is not apparent before him, by the exercise of ordinary care, that they have not complied with their duty; and where but a look under those circumstances would have revealed to him the fact that his supposition was not true, and that the train was near him and that his danger was imminent, be must use care and activity proportionate to the situation to get out of the way.</p>

<p>1 Suit to recover county funds illegally drawn—</p> <p>. The prosecuting attorney has authority without consent of county commissioners to-i bring suit to recover money illegally drawn by county officers.</p>

<p>On claims not filed within a year n'o costs, can be recovered—</p> <p>In an action against an administrator on a claim for services rendered to deceased in his last sickness, which was not filed with the administrator, and demanded within a year after he qualified, no costs can be recovered.-</p>

<p>. Creditor acquiring interest by garnishment may enter superior court in litigation affect | ing such interest—</p> <p>A creditor, who by garnishment in common pleas court acquires an interest in moneys, credits or choses -in action which are being litigated in the superior court of Cincinnati, is entitled to come into the case in the latter court and protect his rights therein.</p>

<p>’ B. died intestate, and the owner of real estate in this state which came to him by descent from his father. He left surviving him neither widow nor children nor brothers nor Isisters, nor parents. Held: thait ithe estate passed to the brothers and sisters of the father or their legal representatives, whether such brothers and sisters are of the whole or half blood of the father.</p>

<p>Where the typography of the property furnishes all necessary local service drainage, and a tile sewer, constructed by the property owner, receives and discharges the surface and other drainage upon the premises into a trunk sewer, there is sufficient local drainage, within the meaning of sec. 2380, R. S., to exempt the property from the sewer assessment.</p>

The record, evidence and uncontested testimony offered herein by plaintiff •shows: January 14, 1888. A bastardy proceeding was begun against Geo. H. Gregg in case No. 8911,by Samantha J.Pribble, who was then twenty-five years old. February 2, 1888. Plea of guilty in case No. 8911, judgment for $800, and same paid in full by Geo. H. Gregg. Journal D. 2nd, page 180. February 24, 1888. Deed from Geo. H. to Ohas. H. Gregg,executed conveying real estate in petition described.

<p>(1) . The weight of authority is that it is not negligence per se to ride upon the platform of a railroad car.</p> <p>(2) . A petition which charges '“negligenoe on the part of the defendant followed by an injury to plaintiff, affords no ground of action, unless the proper causal connection is shown to exist between the effect and alleged cause.</p> <p>(31. The petition in an action for damages for injury sustained by defendant’s negligence,averred that plaintiff as a passenger on defendant’s excursion train secured a seat for himself, but afterward resigned it to a lady, and after remaining in the aisle of tne car for a time, went out on the platform on account of the overcrowded condition of the car, intending to enter another car; but finding that full, remained on the platform; that the train broke in two, whereupon the passengers in the car made a rush to the platform, and crowded plaintiff off the same, and he was injured by failing from the platform. Held: The breaking-in two of the train was the direct and proximate cause of plaintiff’s injury, and not the overcrowding of the cars, and it not appearing from such petition that the defendant was guilty of negligence in the breaking in two- of the train the same does not state a good cause of action.</p>

<p>(1) . An explanatory clause in a will, containing clear and distinct words of perpetuity, will control doubtful language used in another clause, especially if the latter attempts to create entailments or limitations.</p> <p>(2) . An executor obtains no title and has no power to convey real estate unless there are words expressly granting him title, and then only for the purpose of realizing money to pay debts, or as a trustee to carry out designated trusts.</p> <p>(3) . Partition may be had where the life tenant consents to a sale free of the life estate and it appear to the court that a sale will not be prejudicial to the interests of the remainder men.</p>

<p>(1) . An order of the court, made at a former term, whereby the plaintiff is ordered to give security for costs of ■ suit, by depositing a fixed sum of money by a day named, and in case of default the action is to stand dismissed, is not a judgment, but an order (seo. 5310), and failure to make the deposit within the time, does not terminate the action.</p> <p>(2) . Whether, in such case, plaintiff has defaulted, must be judicially determined, before final judgment can be rendered.</p> <p>(3). Such order did not deprive plaintiff of the right to secure the costs by ' procuring a ' qualified surety to indorse the summons, or sign his name on the petition, as surety for costs, and if this were done within the time limited in the entry for making the deposit, it was a substantial compliance with the order.</p>

<p>(1) . Where the county auditor, proceeding under secs.2181-2, R.S.,having reason to believe that a party’s returns for the taxation of his'personal property are false, notifies such party to give him an opportunity to be heard, such party is not obliged to appear before the auditor but if he fails to appear, the auditor may proceed in his absenoe to ascertain from the best evidenoe available the true amount of personal proDerty which such party should have listed for taxation, and have the same entered upon the tax duplicate for collection.</p> <p>(2) . An Ohio Mutual Insurance Co. is not • under sec. 2744 R. S. authorized to list for taxation only property, etc., within the state, but all its assets, whether in the form of notes for premiums or cash balances in the hands of its agents in other states, are subject to taxation in Ohio.</p> <p>(3) . The fact that the sworn annual reports of the Insurance Co. to the State Commissioner of Insurance give its assets at a much higher valuation than at which they were returned for taxation, is proof that the company was aware of the true value of its assets, and its tax returns were therefore false within the meaning of the statute.</p> <p>(4) . The Insurance Co. as an explanation of and to justify ■ its returns for taxation of its asséts at muoh less than their true value, claimed that' it was the rule in the county and generally in the state to tax personal property at about 60 per cent, of its true value. H“ld: While the constitution and laws of the state require all property to be taxed at its true value in money, the court will take notice that it is the prevailing rule to assess personal property at about 60 per cent, of its true value. In view of this fact, and as the tax return of the Insurance Co. if in were permissible under the law to return its assets at 60 per cent, of its value, instead of their full value, would be a very fair one, the court remits the penalty, and states the amounts at which the assets of the company should be taxed without penalty.</p>

<p>Charge ef using obscene language— How offense must be charged in affidavit.</p>

<p>(1). A party convicted of a technical assault was sentenced to “pay a fine of $5.00 and costs.” An execution, issued to collect the fine and costs, was levied on the body of the defendant, and he was imprisoned for non-payment. He applied to the probate court for a writ of habeas corpus to secure his discharge; Held: Where it is intended that the defendant should be imprisoned until the fine and costs are paid, the court must add, as provided in sec. 7327, R. S., that, he should remain confined in the jail until the fine and costs are paid, or secured to be paid, “or he be otherwise legally discharged.” The court not having done so in this ease, there was no authority for the confinement of the defendant.</p> <p>(2) . The sentence ordering confinement until flue and costs are paid, must also add “or until he be otherwise legally discharged.” Without such addition the sentence would not be lawful.</p> <p>(3) . Even where the sentence orders the defendant to be conSned until fine and costs are paid, yet, when it clearly appears that he is unable to pay or secure payment, it is the duty of the county auditor, on application, to discharge the defendant.</p> <p>(4) . Where the judgment against an offender does not order' imprisonment, and he is confined on an execution levied upon his body, it is the duty of the commissioner of insolvents, at his request, to act promptly, to relieve himself from responsibility.</p> <p>(5) . It is no excuse for the neglect or refusal of the county auditor to discharge the defendant in such case, that the latter has friends or relations who are able and should be willing to pay. (See to same effect, In re Moore, 14 O. C., 237.)</p> <p>(6) . The refusal of the county auditor to discharge the defendant is not a judicial determination ousting a court of jurisdiction in the matter.</p> <p>(7) . The decision of one court upon a writ of habeas corpus refusing to discharge a prisoner, is not a bar to the issuing by another court or judge of another writ.</p> <p>(8) . Where a fine is imposed by the court, the imposition of such fine results in making payment of the costs a part of the sentence.</p>

<p>(1) . Under the constitution of the United States, the states are given authority to provide the manner in which the elections for representatives in congress shall be held, but states have no authority to prescribe qualifications for a representative in congress in addition to the qualifications prescribed by art. 1, sec. 2, clause 2, of tbe constitution of the United States.</p> <p>(2) . See. 3022-1, R. S. O., known as the “Corrupt Practices Act”, is unconstitutional so far as it relates to the election of members of congress,because it assumes that authority is vested in the state of Ohio to be the judge of the qualifications of a representative in congress, by declaring an election void upon tbe'failure of the representative-elect to meet the qualifications prescribed in.the act, and it assumes that authority is vested in the state of Ohio to be the judge of elections of members of tbe congress of the United-States, and.declares the election void upon the failure of the representative-elect to comply with the provisions of the act.</p>

<p>(1) . A preference given by an insolvent debtor to a creditor within four months of the filing of a petition in bankruptcy can not be avoided, unless it appear that at the time of receiving the preference the creditor had knowledge of some fact or facts calculated to produce in the mind of an ordinary intelligent man a belief that the debt- or is insolvent.</p> <p>(2) . Constructive notice is a sufficient ground for such a belief; but the circumstances upon which notioe is predicated must be of a character to induce belief as distinguished from suspicion.</p>

<p>(1) . The oommon council of the city of Toledo passed an ordinance granting to the Kerlin Bros. Co. the right to maintain and operate a gas plant in the said city. Prior to the passage of said ordinance by the board of councilmen. the term of office of eight members of the board of aldermen had expired and after the passage of said ordinance on the same day the term of office of fifteen members of the board of councilmen expired. Held, under sec. 1691, R. S. which provides that “the council shall not enter into any contract which is not to go into full operation during the term for which all the members of such council are elected” the said ordinance was illegal and void.</p> <p>(2) . The Kerlin Bros. Co. filed a written hid for the purchase of the Natural Gas Plant of the city of Toledo, in which they offered to pay $102,000.00 for that pari of the plant lying outside of the city; $126.000.00 for that part lying within the city, and $228,000 00 for the entire plant. The bid was made upon the condition that the city will grant to said company, by ordinance, satisfactory to them, the right to maintain and operate the natural gas plant in the city, and also fixing satisfactory to them the price which they may charge consumers for gas. It was provided in said bid that payment of the purchase price was to be made in case of the acceptance of the bid or any part thereof, in twenty days after the passage and due publication of the necessary ordinances and resolutions conveying said property,and granting the right to furnish gas and fixing the price. The council by separate resolutions, accepted, without qualification, the two bids or the two narts of said bid for the separate parts of the plant. Held, the condition that the city shall grant to the company the franchise ordinance was attached to the company’s hid foi the inside part of the plant, and the contract of sale of the said inside part was not completed until the passage of the franchise ordinance, and therefore, under sec. 1691, R. S., all the proceedings relating to tlie sale of tlie inside part o< the plant were void.</p> <p>(3) . In order to make a valid sale of tbe Gas Plant, it was necessary, under sec. 2673a, E. S., to advertise for bids, and in order to secure a free and fair competition among bidders, the bids should respond to the advertisement.</p> <p>(4) . Tl.e Kerlin Bros. Co. included in their bid tbe granting of an ordinance fixing satisfactorily to themselves the price they should charge for gas-an important right not mentioned in the advertisement, and presumably unknown to bidders. As to that ordinance, there was no competition, and it was not competent for the council to enter into a contract based on such a bill.</p> <p>(5) . Under soe. 2673a, B. S., a resolution indicating an intention to offer tlie gas plant for sale, or action on the part of the council in the nature of a resolution, was necessary. The offer could be made only upon the vote of three-fifths of the members of the council.</p> <p>(6) . The resolution of the council directing the clerk to advertise for bids was under the circumstances of the case a resolution of a general and permanent nature, and under see. 1694, E S., should have been read on three different days, or the rule requiring throe readings should have been sus-</p> <p>3 'pend d by a vote of three-fourths of the members sleeted. By reason of the failure of the council to pursue the steps required by said section, the resolution was not properly adopted, and the sale of both parts of the plant, was void.</p> <p>(7) . Neither the payment into the city treasury of the purchase price of the outside part of the plant, nor the resolution of.the council directing the gas trustees to deliver the property to the purchasers, is a defense to an action by the city solicitor under sec. 1777. E S., to enjoin the consummation of the sale.</p> <p>(8) . Public officers, as such, have no light to bring suits in their own names, unless authorized to do so by statute. Under this rule, the suit by the Natural Gas Trustees to enjoin the sale of the Gas Plant, was unauthorized. They are not “trustees of an express trust” within the meaning of sec. 4995, E. S.</p>

Heard on demurrer to petition on two grounds,that more than four years have elapsed since cause of action arose, and that the facts do not constitute a cause of action.

An action to determine the rights of John pi. Grussel and W. A. Hicks, tfustpe' to a fund now in the hands of the sheriff by virtue of an attachment, issued and levied and a sale made thereunder at the instance uf Grussel.

<p>Where a pleading contains inconsistent averments, the pleader will be required to reform.</p>

<p>1. The distribution of the powers of government into three co ordinate branches, executive, legislative and judicial, is an essential feature of our system of constitutional government; and prohibits the confusion of these powers by conferring upon one branch powers that belong to another, unless necessarily incidental to the powers conferred by the constitution.</p> <p>2. The probate courts of the several counties of the state belong to its judicial department,and can not be authorized to exercise powers that are legislative or administrative in character, except as the same may be incident to their judicial powers.</p> <p>3. Section 3461, Revised Statutes, requiring probat) courts to direct the mide in which a telegraph or telephone company may use the streets and alleys of a city or village, when the municipal authorities and the company are unable to agree, is legislative,and not judicial. in character, and is therefore unconstitutional.</p>

<p>(1). The construction placed upon the language of the street railroad ordinance in the City of Cincinnati v.Mt. Auburn Railway Co., 28 W. L. B., 276, in which it was declared that “the owner of each street railway shall pay into the city treasury at the time of tile acceptance, and annually thereafter, on the first day of January, in advance, for and upon each car run by it, the sum of four dollars per lineal foot of every such car, inside measurement.and such payment shall be a-condition precedent to the right to operate the road” is adopted and followed.</p> <p>(•2). There is no ambiguity in the ordinance which would warrant the construction that it permitted the company in estimating the amount due, to pay on each car, only that proportion of four dollars per lineal foot that the actual time the car was in operation bore to eighteen hours per day of 363 days per year; and such construction therefore can not be imposed either by a court or the conduct of the parties.</p> <p>(3) . Whether officials other than those who make a contractor the successors of such officials, can put a ‘‘practical construction” on a contract, and whether the dootriue of ‘‘practical construction” is applicable to contracts made by public officials, are questions upon which it is not necessary in this case to express an opinion.</p> <p>(4) . Sec. 3438 R. S., provides with respect to a street railroad grant (inter alia) that ‘‘After said grant or renewal of any grant shall have been made, whether by general or special order or by order of the county commissioners, neither the municipal corporation nor the county commissioners shall release the grantee from any obligations or liabilities imposed by the terms of said grant or renewal of grant during the term for which said grant or renewal shall have been made.” Held: (a) That the permission given by the company from time to time to the city officials to examine its books to determine whether the reports made by the company of the number of cars used and the amount owing were true and correct,furnished no consideration for any agreement by which the city officials were to receive a less amount than was really due to the city, for the reason that by the ordinance under which the road was operating it was bound to grant permission to make such examination, (b) The provisions of sec. 3438 are unequivocal and forbid any release of what is due the city by its officials; and neither the principles of account Slated nor of accord and satisfaction based upon the receipt of a less amount than was really due have any application.</p>

<p>(1) . The provision of section 20 of article 2 of tbe constitution of Ohio, that the salary of a county official can not befincreased during his term of office, applies only to compensation for duties germain to his office or incidental or collateral thereto, and does not apply to services rendered in an independent employment to which he was appointed by an act of the state legislature.</p> <p>(2) . The provision of 94 O. L., 3931 “that no act heretofore passed at this session of the general assembly regulating the Salaries and compensation of oounty officers in any county of the state, shall be oonstrued to affect or change in any manner the salary or compensation of any county officer elected prior to the passage of such act” applies only to the eleotive officers named in the numerous acts, elected prior to this act which abolished the fee system in certain counties, and to the salaries of county officers in their respective offices, and does not apply to additional, independent offices imposed upon them by the legislature, and especially to a county surveyor whose only compensation is derived from fees for which he does not have to account, and who • is required by law to perform the-duties of a member of the county-board of equalization.</p>

In 1891 Margaret Fleming of Brooke county. W. Va., made a will disposing of about $125,000.00 worth of property and appointing Ripley C. Hoffman her executor, and directed that said will should be probated at Columbus, Ohio; in May, 1891, she died in W. Va. where she had continued to reside until her de.ath and said will was probated within a few days thereafter in the probate court of Franklin county, at Columbus, Ohio, and Ripley O. Hoffman was appointed executor as…

<p>(1) . The requirement of sec. 1694, R. S-, that municipal ordinances must be read on three different days before being put upon their passage, does not apply to amendments proposed and adopted during the consideration of such ordinances unless the subject or proposition of the ordinance is thereby wholly changed.</p> <p>(2) . The provision of the constitution requiring that in amending laws the new act shall contain the entire act or section amended, is directory merely, and not intended to abolish the doctrine of repeals by implication.</p> <p>(8). Under the doctrine that statutes in pari materia have to be construed together and in harmony, secs. 2748 and 2749, R. S., will be construed together so that the amendment of sec. 2748, making that section applicable to natural as well as artificial gas, will apply also to sec. 2749 although the latter section was never amended to that effect.</p> <p>(4) . While sec. 2748, R. S., is a general grant of power to municipalities to regulate the price of gas, sec. 2719 is a limitation of that power. But the court is of opinion that if neither of these two sections had been amended, the use of the general term “gas” would have made them applicable to natural as well as artificial gas, although at the time they were passed the use of natural gas was unknown.</p> <p>(5) . While a provision in such an ordinance relating to the price of gas to be charged to the city for its own purposes, is in the nature of a contract, the city can not contract for its citizens, and a provision in the ordinance fixing the price of gas to be charged private consumers, is not a contract, but a legislative enactment.</p> <p>(6) . The provision of sec. 1691 that the council shall not enter into any contract which is not to go into full operation during the term for which all its members are elected, can not apply to the full performance of every part of such contracts, as otherwise all, contracts, the full performance of which would require much time,such as conducting gas to a city and lay the gas pipes through its streets, Would beoome void.</p> <p>(71. Sec. 2479, R. S. limits the time for which council may fix the price of gas to ten years. An ordinance therefore, fixing the price for the period of ten years, but not to go into operation until six months after the date of its passage, is void as for a longer period than authorized by statute.</p> <p>(8) . Sec. 2485, R. S., which provides ■that every ordinance or contract by a municipality for the construction of gas works, must secure to council the right to purchase such works, applies to contracts with natural gas companies.</p> <p>(9) . Where the Gas Co. entered into contracts with private consumers for the price of the gas ro be furnished, but the city council afterwards passed an ordinance fixing the price to be charged for gas at a lower rate, the Gas Co. can only collect the price as fixed by such ordinance.</p> <p>(Affirmed by Cirouit Court.)</p>

<p>The limitation with reference to proceedings in partition, found in see. 5756, R. S., refers to the time of the entering of the decree, and not to the-time of filing the petition.</p>

<p>One holding an equitable lien on real estate can not enjoin the sheriff from proceeding to sell the property upon a ■ judgment and execution obtained against the owner of the fee, the judgment creditor not being made a party to the injunction proceedings against the sheriff.</p>

<p>Unlawful possession of burglar's tools --Nature of crime — Evidence—</p> <p>(1) . The gist of the offense under section 6835 is the possession of burglarious implements commonly used by burglars for entering houses and other places, in order to take therefrom money or property, knowing them to be burglars’ tools, coupled with the general intent to so use them. The salient point is the fact of the possession of burglar tools knowing them to be such with the general intent to use them burglariously.</p> <p>(2) . The use of the tools or implements need not be made by the accused, but may be made through another, he simply being the custodian thereof.</p> <p>(3) . The state is not required to make proof of any specific "intent on the part of the accused to use the tools at any particular time, or in any particular manner, or in any particular place, but proof of the general intent to so use them is sufficient.</p> <p>(4) . Intent may be shown by proof of the association of the accused with burglars, of his declarations and admissions as to the use of the implements in. question, and from other circumstances surrounding the case at the time of his possession of the burglarious tools in question.</p> <p>(5) . Evidence tending to show possession by the accused of other burglarious tools not named in the indictment at another time and place is admissible as tending to show the character of his possession and his-knowledge of the tools and implements described in the indictment, and of his intent in their possession,, and such evidenoe can only be considered for such purposes.</p>

<p> Charge: Embezzlement— </p> <p>(1) . Where the manager or employe by the terms of his employment with his employer is required to immediately pay over or deposit in bank subject to the draft of the principal the specific sum or proceeds received by him from each sale, the sum so received is the money or property of his employer and cannot be converted to his own use by the manager or employe for an alleged sum due upon his salary or for money claimed to have been, or that has been paid for the incidental expenses of carrying on the business.</p> <p>(2) . Where the manager or employe so employed receives money and neglects and refuses to pay over the same as required by the terms of his employment, the wrongful and illegal act sufficiently characterizes the intent.</p>

<p>A clerk of court is under no duty to either prepare, or pass upon the legal effect when prepared, of a bond for stay of execution; and hence he is not liable for damages should the bond prove insufficient to stay the execution. Such a bond, although left in the custody of the clerk, is the property of the defendant in error, and it is his right and duty to examine it .with reference to its sufficiency to stay the execution.</p>

<p>It is good pleading to unite legal and equitable causes of action, or one sounding in tort and another in contract. if included in the same transaction, and connected with the same subject of action.</p>

<p>(1) . The probate court is not authorized by law to appoint a guardian of the person of a minor who is without estate; and if the record of appointment in the probate court affirmatively discloses that the minor was without estate, such appointment will be held void.</p> <p>(2) . Upon habeas corpus the parent will be awarded the custody of the child against a guardian so appointed.</p>

<p>•(I). Where a law passed by tne general assembly does not appear in the secretary of state’s office, nor on the journal of either house, it must fail as a law, not from any defect in its passage, but because we have no certainty as to what the law is or was.</p> <p>(2). The act “to authorize cities of the first class to issue bonds to pay for property to open, extend, widen or straighten streets,” is yoid under the holding in the first paragraph of this syllabus.</p>

<p>(1) . Where it appears that the decennial appraisement of the real estate of' a certain ward cannot possibly be completed and the assessment returned to the county auditor on or before the-first Monday of July, as provided by sec. 2798, R. S., the ward assessor must continue the work until completed, and he is entitled, under sec. 2795, R. S., to his pay for the time after the first Monday of July, which, with proper diligence, will be required' to complete the work.</p> <p>(2) . Sec. 2798, R. S., while mandatory and imperative as to the duties of the decennial ward appraisers of real estate, is directory as to the time in which they are to be performed.</p> <p>(3) . All enactments imposing duties impossible of performance within a-given time are directory. Such statutes are understood as dispensing with the performance of what is prescribed, when performance is impossible, for the law in its most positive injunctions is understood to disclaim all intention of compelling impossibilities.</p> <p>(1). Under sec. 2795, decennial ward assessors are entitled to no pay, except for time “necessarily employed,”’ and the commissioners have full power to investigate the honesty and merit of every claim, and should do-so.</p>

<p>(1) . Section 2858, R. S., must be construed liberally, for the reason that it is a remedial and not a penal statute.</p> <p>(2) . The provision in said section requiring the reading of the delinquent personal tax list by the county commissioners is directory and not mandatory, and therefore its omissioa does not render invalid the remainder of said statute.</p> <p><3). The testimony adduced in the case at bar shows that the collection of said delinquent taxes was the result of the efforts of said delinquent tax collector, and that he was therefore, in accordance with his contract, entitled to his commissions.</p> <p><4). The question whether all, or only a part, of the delinquent taz list should be turned over to the tax collector, is one of discretion by the proper officials, and can not be reviewed by this court.</p>

<p>(1) . A written instrument as evidence of indebtedness, under section 5085, Revised Statutes, comprises any instrument in writing which witnesses a promise, whether conditional or unconditional, on the part of the maker thereof, to pay a certain, fixed, liquidated sum of money; when sued on, a copy of such instrument must be attached to the petition.</p> <p>(2) . An insurance policy is such an instrument, and should be attaohed. If the application for insurance constitutes a part of the policy, it must also be attaohed; otherwise not.</p> <p>(3) . The time when the contract was made must be stated, and if material must be laid truly, but, if not material, any time antecedent to the bringing of the suit, within the statute of limitations, will suffice. The place of making the contract need not, as a general rule, be averred; place, however, may become material in a particular case, and the burden of pleading it, whether upon the plaintiff or defendant, will depend upon the circumstances of such case.</p> <p>(4) . In declaring upon a contract the primary rule is that the promise, the obligation, of the defendant, must be fully, truly and accurately set forth; hence, if the promise or obligation be dependent upon conditions precedent, such conditions form an integral part of the ^promise or obligation of the defendant, and must be fully, truly and accurately pleaded.</p> <p>(5) . At common law it was the rule that a performance of each condition precedent set forth as a part of the' promise must be averred specifically; but these averments of performance related and referred to, and were required of, those conditions alone which plaintiff averred as a part of the defendant’s contract.</p> <p>(6). Section 5091, Revised Statutes,, substituted an averment of performance, generally, for the specific averments of the common law, but in nowise broadened the effect of such anaverment. It is still limited to, and is to be read in connection with, the-conditions presented, pleaded by-plaintiff as part of the defendant’s^ contract.</p>

<p>Action for Divorce.</p>

<p>Heard on exceptions to finding and report of referee.</p>

<p>(1) . The rights of a certificate holder of a bond investment or debenture company, whatever they are, are referable to the contract, and are to be determined by it in accordance with the principles governing and controlling the administration of just{ce by courts of equity.</p> <p>(2) . A certificate holder of a bond investment or debenture company, in the absence of statutory authority, has no right to have the affairs of the company would upon the ground that it is insolvent.</p> <p>(3) . A court of equity, in the absence of statutory authority, has no jurisdiction to wind up the affairs of a bond investment or debenture company at the suit of a certificate holder. The proper action is one in quo warranto.</p> <p>(4) . A court of equity in the exercise of its general equity jurisdiction has no power to wind up the affairs of a bond investment or debenture company, and can not indirectly through the appointment of a receiver accomplish what can not be done directly.</p> <p>(5) . Where the company agrees to make payment upon maturity upon condition that all the dues or premiums shall be paid when due .by the certificate holder, until that time he has no claim under the contract so long as the coupons are redeemed in the manner provided by the contract. He is not a general creditor under the terms of the contract.</p> <p>(6) . Whore the certificate holder of a bond investment or debenture company was not induced to enter into his contract with the company by any false or fraudulent representations of any officer or agent of the company; where the company has not committed any breach of the contract; and where the money collected from certificate holders is applied in accordance with the terms of the contract, he lias no legal claim against the company for any amount.</p> <p>(7) . A certificate holder of a bond investment or debenture company is not entitled to any portion of its reserve fund unless he continues his payments in accordance with the terms of the contract until the maturity of his certificate or debenture, unless the business of the company be wound up by a proceeding for that purpose.</p>

<p>Rule as to a/ppointment of guardians—</p> <p>(1.) It is not necessary that a person should be an absolute imbecile without mind or capacity, in order to justify the appointment of a guardian under section 6302, Revised Statutes, in whioh “imbecile” is defined to mean “a person who, not born idiotic, has become so.” A person may be an imbeeile, though able to govern himself so as not to need a guardian for his person. Therefore, where a person has become so infirm mentally that he cannot manage his affairs with sufficient capacity to preserve his property, a guardian may be appointed.</p> <p>Imbeeile vnthin the meaning of the statute—</p> <p>(2.) One who for some years has been wasting his property, making disadvantageous contracts, spending large sums of money on property in which he had only a life estate, and which was not worth, when the money was invested, one-half the sum expended on it, is an imbecile within the meaning of the statute.</p>

<p>Demurrer to answer.</p>

<p>Charge to jury in. civil action for damages under the act of the Ohio legislature, passed April 19, 1898, commonly known as the anti-trust law — Construction of said act.</p>

<p>The statute relating to bills of exceptions in civil cases before justices of the peace is not applicable to criminal cases in police court.</p>

<p>(1) . It is the policy of the law to construe certificates of health furnished to a life insurance company favorably to the applicant for insurance; and when an applicant states in a renewal certificate that he is to the best of his knowledge, in the same sound condition of health as when last examined by the company’s physician, such certificate is not vitiated by reason of his suffering at that time from some disease or injury, unless it appears that he knew of such disease or injury, and also knew that it affected his sound health.</p> <p>(2) . It will be regarded as error for a trial judge to present special charges to the jury by incorporating them in his general charge, unless it affirmatively appear from the record that the court was requested to give such charges before argument to the jury, and that the refusal to do so was the subject of an exception.</p> <p>(3) . In life insurance, sound health means that state of health which is free from disease, or ailment that seriously affects the general healthfulness of the systom, as distinguished from a mere indisposition; and the statement to that effect by an applicant for insurance who has no knowledge of such ailment so far as he is concerned.</p> <p>(4) . Interrogatories as to illness, for submission to a jury, which do not include a definition of sound health or a definition of what constitutes an ailment, may be properly refused by the court.</p>

<p>Notaries and their power in talcing depositions—</p> <p>(1) . Depositions may be taken before a notary public “immediately after service of summons;” and this rule applies to the taking of depositions of the opposing party.</p> <p>(2) . A notary has no power to • determine whether a question which a witness has refused to answer is relevant or competent. His only recourse is to commit the witness to jail, leaving to a court of competent jurisdiction the determination of the question of relevancy upon application for release by habeas corpus.</p> <p>(3) . A notary has power to issue a subpoena duces tecum, and to punish as for contempt for disobedience of the writ.</p> <p>(I). Testimony taken down by a stenographer in the absence of the notary does not constitute a valid deposition, although it might be used by consent of the parties as statement of fact; and one who has given a deposition which was invalid by reason of the absence of the notary, may be compelled to submit to -a second examination.</p> <p>(5). If a witness and the stenographer differ as to the correctness of answers taken down, the proper practice is to add the correction of the witness to the deposition, and leave the question to the jury to determine whether credence shall be given to the witness or to the stenographer.</p>

<p>The Deputy State Supervisors of Elections are not officers within the legal definition of that term, and, though their jurisdiction may be coterminous with that of the county, they are not county officers, and therefore, Sec. 2866-3, R. S. does not violate Sec. 1 of Art. 10 of the Constitution.,</p>

<p>Section 591, R. S., providing that justices of the peace shall not have jurisdiction of any action in which the title to real estate is sought to be recovered, extends to actions in which title is involved in the construction of a will.</p> <p>It is not sufficient to merely introduce a document required by law to be attested, and then rest, when objection is made; the defendant is entitled to proof of the execution of the document.</p>

<p>The statute providing for the creation of a fund for pensioning teachers in the city of Cleveland, by withholding a certain percentage from the salary of teachers, is unconstitutional, because it takes from said teachers property without due process of law, and because it is a law of a general nature, which should not be confined to the city school district of Cleveland.</p>

<p>1. The act of January 12, 1824, regulated the rate of interest allowed on all contracts entered into between April 1, 1859, the date when the repeal of the “Ten Per Cent. Law” became effective, and October 1, 1869, when the “Eight Per Cent. Law” went into operation.</p> <p>2. Said act of January 12, 1824, limited the rate of interest permitted to be taken to six per cent, per annum and no more, and this limitation affected the provisions of a contract belore maturity as well as after maturity.</p> <p>3. There is a distinction between the implied repeal of an act general in its provisions, and the introduction of an exception to such general provisions. A subsequent act repealing such exceptions leaves the general provisions of the original act in full force without any re-eaotment thereof.</p> <p>4. The act of February 18, 1848, sec. 3183, R.S.,requires that “all excess of interest above the rate allowed by law at the time of making the contract,” shall be credited upon the principal. On July 18, 1867, a note was given by A to B expressly calling for 8 per cent interest, and interest at that rate was paid on said note up to • July 18, 1893. Held in an action upon said note: That A is entitled to have credited upon the principal of said note, the amount of interest yearly paid in excess of 6 per cent. Samyn v. Phillips, 15 Ohio St., 218; Mueller v. McGregor, 28 Ohio St., 265; and Andrews v. Campbell, 36 Ohio St., 361, distinguished.</p> <p>5. Said act of February 18,1848, permits excess of interest tu be applied as a credit by any way of off-set, but does not grant the right to recover it back.</p>

<p>(1) . The doctrine of oy-pres, as a doctrine of general equitable jurisdiction, is well recognized in this country and in the state of Ohio.</p> <p>(2) . It is not necessary that the object of the trust snould cease entirely to exist, or that the express trust should become absolutely impossible of application before the doctrine of oy-pres can be invoked.</p> <p>(3) Under the circumstances stated in this opinion, a court of chancery in the exercise of its ■ jurisdiction in equity, has the power to apply the trust as near the testators’ particular intention — cy-pres—as possible.</p>

<p>(1). After the liquidation of a building association is entered upon, the obligation of both borrowing and non-borrowing members to pay dues ceases, and hence there can be no fines for failure to dues.</p> <p><2). A material part of the contract, whereby a borrowing member agrees to pay a premium upon his loan, fails when the association goes into liquidation, and payment of premiums can, be demanded.</p> <p>(3). A trust will be terminated where there is no object to be attained by prolonging it, and the only one objecting to its termination is the trustee.</p>

<p>In the application of the Rule in Shelley’s case, an executed trust may be treated as a legal estate.</p>

<p>(1) . It is not necessary in a petition for a writ of habeas corpus to set out fully the facts and ciroumstanoes of the imprisonment or restraint constituting the ground for the relief asked.</p> <p>(2) . Perjury can not be predicated on an untrue fact sworn to in a petition for a writ of habeas corpus, which is not material to the issue.</p> <p>(3) . There is no good reason why, if a person who swears wilfnlly and falsely, and if all the other elements of perjury are present, perjury cannot be predicated on a pleading verified on belief.</p> <p>(4) . Where a person imprisoned for failure to pay a fine, in a petition duly verified, for a writ of habeas corpus, states that such fine has been paid, when in fact such fine has not been paid, perjury cannot be predicated on such false statement, as such averment is of a fact not required to be stated in the petition.</p>

<p>An ordinance levying an assessment to meet the costs and expense of making a street improvement upon the abutting property by the foot front and not otherwise, is not void, provided the city is able to show in an action brought to enjoin the collection of the assessment, that the amount of the assessment does not exceed the special benefits conferred by the improvement.</p>

<p>Where the board of public service of the city of Cincinnati has advertised for bids for an issue of bonds, and bids are received, and the bonds are awarded to the highest bidder at a bid which is more than par, it is not within the power of said board to afterward rescind its action in making the award, notwithstanding the sueessful bidder consents thereto.</p>

<p>A woman entered into an ante-nuptial contraot with her intended husband, whereby she agreed to accept in lieu of. dower and all other claims against her husband’s estate, in case she should survive him, the interest on the sum of $4,000.00 during her life, to be set aside for that purpose from his estate, and to be held by the executor as trustee and by him invested. In his will the husband provided that there should be set aside from his estate $4,000, the interest to be paid to his widow in lieu of her dower and other statutory claims against his estate, the principal to be held and invested by the executor as trustee, in accordance with the ante-nuptional contract. On the death of the husband the widow elected to take under the will, and the executor thereupon separated $4,000 from he prooeeds of the estate and invested the same in stock, paying the interest regularly to the widow for a number of years, when the stock greatly depreciated and no more dividends were paid thereon. The widow thereupon sued the administrator de bonis non, who had succeeded the executor in the administration of the estate, to compel him to apply other trust funds held by him in trust for other devisees under the provisions of the will,to make good the amount of $4,000.00 to the interest of -which she claimed to be entitled under the ante nuptial contract. Held:</p> <p>(1) . The provision made for the widow by the will or ante-nuptial contract was not an annuity.</p> <p>(2) . Having elected to take under the will, she waived her rights under the ante-nuptial contract, as well as her dower rights, and she has only the rights of a legatee under the will.</p> <p>(3) . When, as in this case, there has been a separation of fundB and an appropriation by the executor to the particular purposes pointed out by the will, the executor, who is also named trustee for the funds, loses his character as executor as to these trust funds, and becomes simply and only a trustee.</p>

<p><1). Under sec. 1264, R. S., which provides that “the county commissioners shall furnish to the clerk ail blank books,stationery, etc., which articles the clerk may procure and shall be allowed for upon his certificate,” all the clerk has power to do is to select such books and supplies as ho may need; and that after his selection the bill shall be allowed for upon his certificate, in the discretion of the board of county commissioners as to the amount to be paid therefor, and as to whether the different articles are necessary to the prompt discharge of his duties.</p> <p>(2). Under sec. 2834-6, R. S., the county commissioners can not make a valid contract for such supplies until the county auditor has certified that the money required for the payment of the obligation, arising from the contract, is in the treasury to the credit of the fund upon which it is to be drawn,or that the tax has been levied and placed on the duplicate, and is in process of collection, and not appropriated for any other purpose.</p>

<p>(1) . By the Dow law, sec. 4364-20, R. S., druggists and other persons selling liquor for mechanical, pharmaceutical and sacramental purposes are left free to sell intoxicating liquors so long as they do not violate any other statute dealing upon that subject.</p> <p>(2) . By the latter part of section 11 of the Dow Law, it was intended to give to municipalities the power to control absolutely, in all respects, the sale of liquor and the places where the same is sold, even to the extent of total prohibition of the same.</p> <p>(8). It seems to be a well-settled proposition in law to-day, well supported by the courts, that when a municipal corporation follows the direct authority given in a statute for the passage of an ordinance, that it is not necessary to include all the exceptions in other statutes relating to the same subject-matter.</p> <p>(4) . An ordinance prohibiting the sale of intoxicating liquor on Sunday is valid although it fails to make the exceptions provided for by the Dow Law in regard to drug-stores, etc.</p> <p>(5) . Sec. 270l-e-l requiring that a full transcript of the proceedings in the case shall accompany the mittimus where a person is confined to the workhouse, applies to district workhouses, erected and maintained by different counties for such districts, but does not apply to the workhouse of Cuyahoga oounty, for the reason that there is distinot legislation for its control and for the control of prisoners sent to it from the magistrate of Cuyahoga oounty.</p>

<p>The act known as the Boxwell law is constitutional, but directory in its character; and the duties imposed upon school boards cannot, therefore be coerced by the oourt.</p>

<p>(1) . The phrase “prescription issued” in the Dow Law means the same as “written prescription” and every sale by a druggist otherwise than upon a prescription issued “for medical purposes by reputable physicians,” must be held to be without the exception, and the burden of showing such sale to be within the exception rests upon the party making it, and this proof is to be in writing, that the statute may not be evaded. The fact that the plaintiff sold, liquor in good faith for medicinal purposes can be no protection to him, unless the prescription* on which he made the sale meet the requirement of the statute.</p> <p>(2) . A prescription in contemplation of the statute should be dateu, should contain the name of the patient with directions as to its use and should not only be signed by the physician issuing it, but should be directed to some particular druggist as evidence of good faith on the part of the one issuing it. Such a prescription is an effective means <>f preventing abuses and evasions and subterfuges, and is of equal importance where the druggist is himself a physician as in any other.</p> <p>(3) . It is not competent under the law to offer parol evidence that a sale was made on a certain prescription. The prescription itself must be the only evidence. If a druggist sells upon a prescription which requires oral proof in addition to the prescription itself, he sells at his peril.</p> <p>(4) . The court inclines to the opinion that under the Dow Law a physician may not both prescribe and sell whiskey to his patients.</p>

<p>(1) . Where property is taken by the sheriff under a writ of attachment, and by him placed in .the possession of a keeper, such keeper’s possession is the possession cf the sheriff. Eoot v. Eailroad Co., 45 Ohio St., 222.</p> <p>(2) . Where,after levy of an attachment on the debtor’s stock of goods, an arrangement is made between all the parties to such attachment suit whereby the debtor is permitted to continue to make sales at current retail prices in the usual way, the proceeds to be turned over to the sheriff or the keeper whom he had placed in posses-</p> <p>• sion of the goods and store under the levy of the attachment, such an arrangement is an “innocent and laudable one.” (12 Mass., 152).</p> <p>(3) . To permit the attachment debtor to seli or dispose of attached property would tend to prove an attachment fraudulent, but not conclusively so, and it would not be so where the sheriff sells with the consent of all the parties to the suit. An outside creditor cannot complain of such an arrangement unless he can show that he was mislead and deceived by the aots of the officer.</p>

<p>A director of a building association in receiving deposits from members who are employes under him acts as the agent of the members entrusting their deposits to him, and not as the agent of the association.</p>

<p>(1) . Generally speaking, in the United States, citizenship may be said to depend upon domicil.</p> <p>(2) . Every person must have a domicil somewhere. No person can- have more than one domicil at the same time. Every person who is sui juris and capable of controlling his personal movements may change his domicil at pleasure. A change of domicil is a question of fact and intention.</p> <p>(3) . The abandonment or change of domicil is a proceeding of a very serious Dature, and an intention to make such a change requires to be proved' by very satisfactory evidence.</p> <p>(4) . The fact that a party has voted at a certain place is not determinable of citizenship, and the action of the officers of election in permittinghim to vote is not binding on the courts, but such evidence is admissible as a fact tending to show the intention of the party to make such place his domicil.</p> <p>( 5). The residence of a student is usually temporary, and hence results the presumption that the residence of the particular student is also temporary; it is therefore necessary in order to show the acquisition of domicil in the particular case, to overcome this presumption by suitable evidence.</p>

<p>An infant is responsible for his own torts, and a father can not be held for the independent wrong of its child, but the father is liable if he was in any way connected with the infant’s doing wrong, either actively or passively.</p>

<p>(i.) An ordinance by a city council authorizing a committee to make an investigation, is valid as authority to investigate although it may be invalid under sec. 1545-3 R- S., as an authorization for the expenditure of money.</p> <p>(2.) The repealing clause of the Cleveland Federal Plan law, see 1545-85, does not repeal existing laws applicable to the government of cities, which do not prevent the operation of the provisions of such new law.</p> <p>(3.) Section 11 of the Cleveland Federal Plan law, section 1545-11 R. S., does not pro-vent, in terms, the operation of section 1687 R. S., and is not in conflict therewith.</p> <p>(4.) While under the decision of the U. S. Supreme Court in Councilman v. Hitchcock, 142 U. S.,547, both sectionl687 R. S. and sec'-' tion 1545-11R. S., may be unconstitutional as not providing complete immunity for those who are compelled to make disclosure in an investigation, yet, the question of unconstutionality cannot be raised by one who is not a formal party to a case, criminal in its nature, when it appears that, in his own opinion, the answer would not tend to criminate him.</p> <p>(5.) Both section 1687 R. S., and section 1545-11 R. S., are constitutional in so far as they do not invade the rights of an individual, guaranted to him by section 10 of the Bill of Rights of Ohio.</p> <p>(6.) The legislature of Ohio has constitutional power to vest a city council or a committee thereof, with authority to commit a witness who may refuse to answer pertinent questions put in the course of an investigation which is confined within the proper limits of its lawful functions.</p>

<p>(1.) The act known as the Boxwell Law is constitutional.</p> <p>(2.) This act providing for the payment of tuition of the students of the high school in another district than their own, by the district in which they live is not unconstitutional, on the ground that it provides for a distribution of the money of one school district, or taxing district, in favor of another, without authority on (he part of the district expending the money, to control its expenditures.</p> <p>(3.) It is not a distribution of the funds of one district in favor of another, but it is a distribution -of the funds of the district raising them, for its own benefit, and because it happens to be paid in some other place, there is no misapplication of it.</p> <p>(4.) The legislature from the beginning, has asserted its authority to control the application of school funds, and has repeatedly done so, and it is clearly within its constitutional powers.</p> <p>(5.) The right lo a writ of mandamus will not lie in a case like this until the amount to be paid for such tuition has been linuidated, either by an agreement between the different boards of education, or by suit at law; but when liquidated, if payment is refused, the writ should at once be granted.</p>

<p>(1.) Clause 5 of sec. 1692 R. S., which authorizes cities and villages “to regulate ale, beer and porter houses and shops”, is in force at the present time, for if it could be said that the Dow law as originally passed in 1886, repealed clause 5 of sec. 1692 R. S., then in force, by implication, such state of facts does not exist at present; because for the purpose of amending sec. 1692 in certain other particulars, said section has been changed and re-enacted since the Dow law was passed, and clause 5 of said section has been reenacted in the same language that it contained at the time the Dow law was passed.</p> <p>(2.) An ordinance prohibiting the keeping open within the corporation “any house, shop, room, or other place where ale, porter or beer is habitually sold or furnished to be drank, or keep open in any manner any place of notorious or habitual resort for tippling or intemperance,’’passed under clause 5, of sec. 1692 R. S., need not except drug stores from its operation. Such an ordinance has no application to drug stores and does not infringe upon any rights granted by the legislature under sec. 11 of the Dow law.</p> <p>(3.) If it is not necessary to except drug stores in such an ordinance, then it is not necessary to except drug stores from the affidavit charging an offense -under such ordinance.</p> <p>(4.) Ordinances may be passed by cities and villages providing for the punishment of the same act which is made criminal by the statutes of Ohio, and offenders may be punished in both jurisdictions for the same act</p>

<p>.(i.) An action to compel a corporation to transfer a certificate of its stock to the name of the plaintiff, is an action for the specific performance of an eciuitable duty, and the provisions of section 5016 R. S. do not apply thereto.</p> <p>(2.) But the corporation is entitled to have made parties to the petition all persons who have any interest either present or remote' in the stock question, and where an affidavit for interpleader is filed which bv the admission of a demurrer conclusively shows that the ownership of the stock and the right of transfer- can not be determined without the presence of such parties, an order wih be granted bringing them in.</p>

<p>(1.) In contemplation of law, the parties to an action pay their own costs as they are incurred during the progress of a case, and judgment for costs is rendered in favor of the prevailing party, upon the theory that he has paid, or is liable for the costs incurred by him and to reimburse him therefor.</p> <p>(2.) If a party has not actually paid the costs incurred by him, he is responsible to the officer who may require their payment, or security therefor, in advance.</p> <p>(3.) Where an action is brought against a justice of the peace to recover money deposited with him by a non-resident plaintiff to secure costs, and the petition shows that said non-resident’ plaintiff has recovered judgment including his costs against the defendant, but fails to show that the costs, to secure which said deposit was made, had been paid, the petition is bad on demurrer.</p>

<p>(1.) The Statutes of Ohio sections 3140 and 4182 R. S. permitting adoption of children and designation of heirs, confer the right and power upon one to prescribe who shall be heir to himself, but they do not extend the power so that he may designate who may take the property of some one else. And this applies with special force in a case of an estate tail, where the ancestor or original grantor has expressly and positively directed to whom the property shall go, and in effect has closed the doors to every one else.</p> <p>(2.) Estates tail exist and are recognized in Ohio, limited^ by the effect thereon of the act of 1811 (section 4200 R. S.). This act does not change the nature of the estate in the first donee in tail from an inheritable estate to an estate for life only, but the statute comes into operation when the estate passes by the first donee in tail and reaches his issue, when the statute enlarges the estate tail in the hands of such issue into an absolute estate in fee simple.</p> <p>(3.) The rule which is now settled in England, in America, and in Ohio, is that where a previous life estate or other freehold interest in property is given by a will, and upon the determination of such estate the property is directed to be divided among certain surviving persons, the persons referred to are those surviving the determination of the preceding estate, and not the persons surviving the death of the testator.</p> <p>(4.) Will of Clark Bates construed.</p>

<p>The provision of section 1545-145, R. í¡>., (the Charter Law of Columbus), which vests the entire control of the lighting of the city in the- director of public improvements, vests in such officer the management and control of the city’s electric light plant.</p> <p>Section 1545-145 R. S., is not affected by the subsequent amendment of sections 2486-7-8-9, R. S., which continues the general law as to the erection or purchase, and operation of electric light plants by cities.</p> <p>General statutes are read as silently excluding from their operation the cases which have been provided for by special laws.</p>

<p>Where the evidence discloses that the making of an abstract of title to real estate has been confided in an attorne” at law, the court will assume that his legal knowledge and power of judgment and discrimination was desired in order that what does and what does not affecc the title investigated might be correctly determined ; and where the property is valuable and the title is complicated, involving risk and responsibility on the part of the abstracter, the abstract will not be regarded as‘ a mere mechanical commodity when the fee for its production is to be fixed, but the professional learning of the abstracter and the confidence reposed in him by his employer will be taken into the account.</p>

<p>1. In a suit in attachment against a nonresident, jurisdiction is acquired by the seizure of the property, and judgment can be rendered only in an amount equal to the value of the property seized.</p> <p>2. Where there is no actual seizure of property, but the garnishee appears and offers to deliver the property to the court, but is not ordered to do so or to give bond, no property comes into the custody of the court, and jurisdiction is not conferred.</p> <p>3. It is error to render personal judgment against a defendant who appears under such circumstances to move a dismissal of the attachment, and for no other purpose.</p> <p>4. Where a rairoad company is served with notice of attachment within ten minutes after the goods described have been loaded into _ a car in Cincinnati bound north, the court will presume that the goods were still within the territorial jurisdiction of the magistrate.</p> <p>5. As to whether a writ of garnishment does or does not bind a common carrier with respect to goods of the defendant in attachment, in transit, when the goods are at the time of service of the writ within the territorial jurisdiction of the magistrate, the court does not find it necessary to express an opinion.</p>

<p>All tne parties to a joint judgment are necessary parties to a petition in error by one of them; and while omitted parties may be brought in by amendment, such parties must nevertheless be broughc in within the period for filing petitions in error, or the reviewing court will have no jurisdiction.</p>

<p>(1.) It is always proper that a plaintiff make explanatory averments, by way of inducement, of matters connected with the subject of controversy which otherwise would be left vague and uncertain.</p> <p>(2.) The court, on a motion that it is equivalent to a special demurrer, must assume that the plaintiff has stated in his declaration the substance of the contract without qualification or condition; additional matter is prolixity.</p> <p>(3.) The conditions of a contract whose performance are averred must be, and can be, only those which form part of the contract or promise as stated in the petition.</p>

<p>To create legal domicile there must be actual residence combined with intent to remain.</p>

<p>On motion requiring the plaintiff to show cause, etc.</p>

<p>Where in making a contract one party gives the other references as to his financial standing and credit, but the other party concludes the contract without inquiring of such references, a subsequent inquiry, because unsatisfactory in results, will not avail him to rescind the contract.</p>

<p>A witness who refuses to answer a question before a notary public in the taking of depositions, is 'not guilty of contempt if such question is not pertinent to the issue.</p> <p>Where a notary ,before whom depositions in a pending suit are being taken, commits a witness as for contempt, for refusal to answer certain questions, all the facts necessary to enable the court, on habeas corpus, to determine the materiality of the question should appear on the face of the order of commitment itself.</p> <p>The order of commitment made by the notary, should contain a finding that the witness was guilty of contempt.</p> <p>There is no contempt until an order has been lawfully made by the notary, and a refusal on the part of the witness to obey that order; the mere putting of a question to a witness by the attorney for the party taking the deposition, and a failure to answer the question at the request of the notary, the notary making no command, request, or order to the witness, constitutes no contempt, and a committal therefor is illegal.</p>

<p>A cause of action for damages against the city for wrongfully appropriating plaintiff’s-property in improving a street, and another cause of action for tihe recovery of money paid on an assessment wrongfully made by the city on the remaining land for the street assessment and asking for an injunction, are •causes arising from the same transaction, and may properly' be joined in one action.</p>

<p>1. When tracks of land are sold, if a small strip remains, as where the purchaser of a building obtained title to a lot three feet shorter than the building itself, it becomes the property of the last buyer,unless specification is made to the contrary.</p> <p>2. In the case above fore-shadowed it was I held that the building should remain, the owner to have title to the three feet, but that title to land beyond the projection of the eaves did not pass.</p>

<p>In an action to contest the validity of a will, there is only one issue upon which a j ury must pass, irrespective of the pleadings', namely, whether the writing produced is the last will or codicil of the testator or not. The simple allegation in the petition that it is not, tenders the issue, and all other averments are surplus-age, and no answer is required.</p>

<p>A depositor of a building Association, who is not a stock member thereof, is a creditor of the association.</p>

<p>(1.) Every boxing match or sparring exhibition for a prize fight is a crime under the laws of Ohio.</p> <p>(2.) No public gymnasium or athletic club, whether it has been organized bona fide or is a sham, can exhibit a boxing match or sparring contest for a prize under any circumstances whatever.</p> <p>(3.) That the contestants fight with gloves instead of bare fists, and for a limited number of rounds instead of “to a finish,” is of no importance, nor do these circumstances mitigate the brutality of the contest or lessen the danger of injury to the combatants to any material extent.</p> <p>(4.) All such affairs when held in public are common nuisances. They attract among others, the idle and vicious elements in society, and persons whose occupations are for the most part criminal; whose lives and conduct degrade a community. They are brutal exhibitions of physical force trained to a high-degree of power and endurance; they are gladiatorial in their nature, and are under the ban of civilization. They set false standards of manly virtues and are a disgrace to the community in which they are held. They affect the fair name and honor of the state and of the place in which they are held. They make a man’s place of habitation less desirable to live in, and are humiliating to him individually and as a citizen. They are degrading, .and are injurious to the moral tone of the community, and tend to make it and private standards lower. Their effects are demoralizing and pernicious .to the good order and well being of society. The facts in this particular case show a common public nuisance of the first magnitude.</p> <p>(5.) Such contests with their attendant evils affect a man’s comfort and welfare, and may even endanger his safety. They interrupt and prevent the calm enjoyment of life and the peaceful pursuit of happiness which are among every man’s inalienable rights, guaranteed him by the constitution, and to secure which, with other things, governments are established among men.</p> <p>(6.) A _ court of equity takes cognizance of these things, and when a threatened act, although a crime, is with its attendant circumstances also a public nuisance, will when the apprehended injury is irreparable, and there is for it no adequate remedy at law, prevent its execution by injunction.</p> <p>(7.) The State is interested in the enjoyment of life, the happiness, the health, the comfort, the safety, the morals and the well-being of its inhabitants, and its courts are open to it, on the relation of its attorney general to prevent the infringement of these rights by any public nuisance. If the law is inadequate, or gives no remedy, the courts exercising equity jurisdiction will afford relief,</p> <p>_ (8.) It is not essential that any property rights be involved in order that a court of equity may lake cognizance of a public, nuisance. The enjoyment of life, the happiness, the health, the comfort, the morals, the safety and the well-being of the inhabitants of a state are of more importance to them and to it than an'r property or mere money interests they or it can possibly have; and rhe right to these has at least the same constitutional guarantees that the right of property has.</p> <p>(c¡.) Indirectly property rights are involved in a public nuisance which lowers the moral tome of a community, gives it a bad repulation, and consequently makes it a less desirable place to live in. Property rights are directly affected when the nuisance is of such a character that extra police must be employed to prevent breaches of the peace and to afford protection to the community from large numbers of vicious people whose presence, with other things, constitutes the nuisance. This, and the maintenance of additional courts of criminal jurisdiction, affect the pocket of every tax-payer.</p> <p>(10.) A court of equity will not invent a new remedy, but will apply old and established principles to a new state of facts. „</p>

<p>The return of the appraisers in a replevin suit can not lie considered as testimony to show the value of the property replevied.</p>

<p>Under the bankruptcy act, a payment by an insolvent debtor to a creditor of a debt with the intent' to prefer' such creditor, within four months before adjudication in bankruptcy, in an action to declare such transaction void, plaintiff must prove as a substantive fact, that hte defendant had reasonable”cause to believe that the firm was insolvent.</p>

<p>The liability for injuries caused by defects In a sidewalk outside of a municipal corporation rests on the land-owner to whom power is given to build it in the first instance, not on the •county commissioners or township trustees.</p>

<p>In a suit by a sub-contractor against the owner for balance due, the fact that the owner has a claim against the principal contractor for breach of contract is not sufficient ground for the making of the principal contractor a party by the defendant owner, where the principal contractor claims no interest antagonistic to that of the sub-contractor.</p>

<p>Where want of consideration- is pleaded in a suit on a promissory note, a motion will lie to require that the answer be made more definite and certain by a statement of the specific facts upon which the defense is based.</p>

<p>Specific performance of contracts relating to personalty will not ordinarily be decreed. Exceptions to this rule have been made when the value of the chattel withheld was peculiar to itself, or where damages in money cannot be ascertained, or where the detention could not be adequately redressed by damages.</p>

<p>When a sister lives with her brother for a number of years prior to her death as a member of his family, and after her death he brings' suit against her administratrix for pay for her board, the burden of proof is on him to show either an express contract between them or such circumstances as will authorize the jury to find that he expected to charge for her board and she expected to pay for it.</p>

<p>An award made by arbitrators chosen by the parties to a cause pending to determine the issue therein, is not reviewable either as to its conclusions of law or facts, unless the contract of submission makes provision for such a ~e-view.</p> <p>Where the contract of submission to arb'tra lion expressly provides that the award made shall be final and conclusive upon the parties, and that each party will stand to and abide t" and perform such award under the agreement, a court has no power to review either the findings of fact or law made by the arbitrators, or to inquire into the correctness of the leg u rules which the arbitrators selected and applied to''the facts they found, whether their judgments in these respects arc correct or not.</p> <p>Where the contract -of submission to arbi tralion provides that “hearings may be. adjourned from time to time and place to olace by a majority of the arbitrators, but that the arbitrators shall agree in all other matters, such requirement has reference to all matters, whether of law or fact, the determination of which would be essential to sustain the final award of the case. Therefore the non-concurrence of the arbitrators as to the adequacy of the price paid by the trustee to the ccsHú que trust will not invalidate the award made in favor of the trustee where the arbitrators find that the cestui que trust has lost his right to rescind the contract by laches.</p> <p>The doctrine of laches applies to the time within which a party is to take advantage of his right to rescind a contract, while the statute of limitations applies to and fixes the time within which he must bring his action to enforce that rescission, if such action is necessary. While therefore, the time for bringing such action is limited to four years by the statute, the finding of arbitrators that a plaintiff was guilty of laches in failing for two years to give notice of rescission of a sale of stock to the defendant is not in conflict with the statute.</p>

<p>It is the duty of an electric street railroad company to maintain its tracks in a safe condition, and it has at all times the right to do it. And if local authorities refuse the company permission to make repairs, the law compels it to exhaust every legal remedy to prevent. the interference of local authorities.</p> <p>A municipality has the right by virtue of the control oyer its streets, granted by statute, to establish regulations for the conduct of a street railroad which promote the public safety arid welfare, but which must not unreasonably interfere with the franchise, management or business of the street railroad company, or violate'the obligations ■ of any valid contract.</p> <p>Conditions under- which a municipal council, by resolution; granted a street railroad company permission to .repair its 'tracks, poles and wires, considered; arid s.uch as have- reference to public safety, comfort and welfare, su-stained, while those which do -not appear to have ref-, rence to the public good, or ,are in-conflict with' the franchise under which the -street railroad company is operating, are held not a proper exercise -of the police power and' invalid.</p>

<p>It is of the very essence of an estate in fee simple absolute, that the owner, who is not under any personal disability imposed by law, may dispose of it. An attempt, therefore, to impose upon the owners of a fee simple estate a restriction against partitioning can not be upheld.</p> <p>The owner of an absolute estate in fee-simple may, by deed or by will, transfer an estate therein less than the whole or may transfer the whole upon conditions, the breach of which will terminate the estate granted; or he may create a trust, whereby the beneficiary may not control the corpus of the trust, or even anticipate its profits.</p> <p>No particular formality of words is necessary to create a trust by will. The intention of the testator determines whether the trust has been created.</p> <p>A devise was made to A of certain real estate in trust to collect the rents and profits of the same, and pay them to B who was sui juris for a period of ten years, at which time the trust was to terminate and the property to vest absolutely in fee simple in B. Held, that such trust was invalid and-that B was entitled to the property at once, discharged of said trust. .</p>

<p>1. When the sheriff has a writ of habere facias, to put the plaintiff in ejectment in possession of the land recovered in such action, and simply asks the direction of the court as to what his duties are under such writ, he is not subject to be enjoined from tearing down and removing a portion of a wall standing upon the piece of land recovered in the action.</p> <p>2. By virtue of a writ of possession under the statute of Ohio, whereby the sheriff is ordered to put the plaintiff in ejectment in possession of the land recovered, the sheriff is not required to cut down or remove a portion of a wall standing upon the land recovered in such action.</p> <p>All the sheriff is required-to do under such writ, is to put the plaintiff in the peaceable possession of said real estate in the condition in which he finds it, with all the improvements placed or standing thereon.</p>

<p>A statute furnishes itself the best means of its own exposition; and if the intent of the act ■can be readily ascertained from a reading of its provisions, and all its parts may be brought into harmony therewith, that intent will prevail without resorting to other aids of construction.</p> <p>A provision in a village ordinance requiring transient dealers to take out a license before doing business in the village, if standing by itself, would be unconstitutional (Flatau v. Mansfield, 14 O. C. C., 592),but where such provision is only a part of a general police regulation expressed by the whole ordinance, it is valid.</p> <p>It is because the business of transient dealers calls for police supervision and regulation that justifies such ordinance and license, and the municipality may charge a reasonable amount to defray the expense of such supervision and regulation.'</p>

<p>There are three classes of cases which have been held to be sufficient demonstrations of an intended execution of a power: (1.) Where there has been some reference in the will, or other instrument, to the power: (2.) Or a reference to the property, which is the subject on which it is to be executed: (3. Or where the provision in the will or other instrument, executed by the donee of the power, would otherwise be ineffectual, or a mere nullity; in other words, it would have no operation, except as an execution of the power.</p> <p>When the consent of any person is required to the execution of the power, that like every other condition must be complied with. And if the person whose consent is necessary, die before the execution of the power, and without having assented, the power is gone, although his death was an act of God. So where the consent of several persons is required, the death of one of them destroys- the power, for the consent of the survivors will not satisfy the words of the power.</p>

<p>A contract by which a corporation agrees to give a person engaged in a similar line of business employment within a reasonable time, and at a reasonable salary if he would discontinue his business, is not in violation of the act of April 18, 1893, (93 O. L., 143), popularly known as the Anti-Trust Law.</p> <p>An agreement to give' a person employment if he would give up his business and enter the services of the other party is not too indefinite to be capable of enforcement when properly construed as a contract to employ him so long as the employer was engaged in that business, and had work which the employe could do and desired to do and was able to do satisfactorily.</p> <p>A contract by which one sells his business agreeing not to enter into a similar business for a certain length of time and with respect to certain territory is valid if the prohibited territory is not more extensive than is necessary to enable the party contracting to enjoy the fruits of the contract.</p>

<p>When a contract in restraint of trade is incidental to and in support of a main contract which is lawful, it is itself lawful; but where it is in itself the end sought, it is unlawful.</p>

<p>A judgment improperly obtained should not be vacated absolutely, but suspended until it has been adjudged that there is a valid defense to the action.</p>

<p>(i.) Needless prolixity in a petition will in some measure influence the court on a motion to strike out, in the hope that in reforming the petition such prolixity will be avoided.</p> <p>(2.) The rule that' a motion to strike out is barred by the interposition of a previous demurrer is not inflexible; but the power is inherent in the court to order irrelevant or redundant matter to be stricken from a pleading, where by so doing greater certainty can be obtained as to the issues to be tried.</p>

<p>The act of April 16, 1900 (94 O. L., 332, sec. 43É2-9a R. S.), providing that the probate courts upon written complaint sworn to by aiiy pé'rson, that a person engaged in the traffic in intoxicating liquors has refused or neglected to pay the “Dow” tax, shall notify such party requiring him to appear and show cause why their said business should not be assessed fox-such tax, confers ministerial duties on probate courts and is therefore unconstitiutional.</p>

<p>(1.) In the absence of testimony in support of an allegation that in the passage of an ordinance certain intermediate steps prescribed by statute were not taken, it will be presumed that such steps were taken.</p> <p>(2;)_ Where the police fund is neither a municipal fund, nor derived from a levy on the general tax list of the municipality, but is created by proceeds from the Dow liquor tax, its expenditure is not controlled by the nrovisions of the Burns law (.section 2202, R. S.).</p> <p>(3.) Where one is nominated for appointment as a policeman by a member of council at the request of the mayor, who is present and concurs in the election, the appointment is not rendered invalid by the provisions of section 2023,-vesting such appointment in the mayor.</p> <p>(4.) The failure of a policeman to give bond does not ipso facto work a forfeiture of the office, nor deprive him.of the right to compensa-, tion.; but a court-will enjoin his continuing in office without, giving bond.</p>

<p>In an action by the grantee in a deed where a reformation of the deed is sought so as to make it a mortgage the question of dower of grantee’s wife is involved and she should therefore be made a party to the suit.</p>

<p>The qualifying provision in sec. 5099 R. S., ■extending the right to address interrogatories to corporations, that in such case the answer under oath shall be by the president, secretary •or other officer thereof as the parties propounding shall require, does not limit the right to require answer only in cases where the ■opposite party designates an officer to answer. Answer may be addressed to the corporation itself where it is apparent that the information is in the possession of all the officers of the corporation.</p>

<p>While under the old chancery practice claims-against a receiver, like those against the estate in receivership,- were presented by intervening petition; under the code such claims may be presented by cross-petition, or even by mere motion.</p> <p>Where, without formal leave a person interested comes into the case, and his application is entertained by the court, and his claim: heard and determined on the merits, such action of the court is- equivalent to a leave to-come into the case, notwithstanding such informality.</p>

<p>Receiver — When appointment of proper—</p> <p>A receiver ‘may- be appointed of a corpora- . tion, partnership or individual, without regard to their insolvency, in any case when such appointment is necessary for the preservation of the property pending litigation.</p> <p>Receiver of Corporation. — ■When Appointment Proper. — The appointment of a receiver for a corporation, at the instance of one of its stockholders, is proper, where all the shares of such corporation have been sold to another corporation, and placed in the hands of third parties as collateral security, until paid for, and when the selling corporation is without legal officers or directors, and the purchasing corporation has refused to carry out the obligations of the selling corporation, which has been sued thereupon, and the purchasing corporation has brought an action to have its contract of purchase rescinded and annulled.</p> <p>Same •— Appointment without notice —</p> <p>A court may appoint a receiver of a corporation, without notice, if the facts and situation warrant it.</p> <p>What are Judges "Chambers.” — A judges “chambers” for the transaction of business properly transactable there, are not to be understood as being confined to his room in the court house, but may be at his Home or anywhere in his district where he happens to be.</p>

<p>Pleading — Partnership Bill constitutes one cause of action.</p>

<p>I 1. Upon motion for judgment on special findings, under R. S. 5202, the question whether the special findings are inconsistent with the . general verdict must be determined from in-j spection of the record, and without reference to the evidence.</p> <p>1 2. If the special findings do not respond to all the issues, so that the court can not say, upon inspection of the pleadings and the special findings, which party is entitled to a judgmenc, they will not sustain a judgment contrary to the general verdict.</p>

<p>Where j ustice can be promoted thereby, a case will be sent back for retrial on account of error that is technical only.</p>

<p>(1.) An unassigned right of dower is not a freehold estate, the legal title of which passes to the assignee of the dowager.</p> <p>(2.) Such unassigned right of dower is, however, a vested interest, transferable to a stranger to the title before being set off by metes and. bounds; and the interest held by the assignee of the dowager is an enforceable equity.</p> <p>(3.) But in balancing equities, that of a surity of the dowager, in whose possession he left the property, will prevail over that of a subsequent assignee for the benefit of creditors.</p>

<p>Motion to make more definite and certain.</p>

<p>Our statute does not require that an assignment of a real estate mortgage must be recorded in order to give the assignment validity as against a creditor of the assignee who secures a judgment after the assignment-</p>

<p>A bid for an issue of municipal bonds will not be declared invalid because of the failure of the bidder to state, as required in the advertisement, the gross amount which such bidder ■will give for the bonds, provided the gross amount of his bid can be ascertained by compul at'on.</p> <p>A bid of “103.50” and interest for bonds is not ambiguous.</p> <p>When there is no difference of opinion between the purchaser and the seller as to the terms of the purchase, and the bid accepted is the highest made, there can be no complaint on the part of the other bidders.</p>

<p>Where a statute provides that municipal bonds can only be issued “After advertising the same for sale once per week for four consecutive weeks of the same day of the week in some newspaper of general circulation in such city,” no sale of such bonds can be had until notice of four weeks or twentv-eight days shall have been given; and the statute is not complied with where an advertisement is inserted on the 8th, 15th, 22d and 29th of the month calling for sealed bids to be submitted on or before 12 o’clock on the 31st.</p>

<p>An advertisement for the sale of municipal bonds under the provisions of the act of April 26, 1898 (O. L., Vol. 93, p. 374), becomes effective after the fourth insertion.</p>

<p>It was in issue whether barrel manufactured for a certain purpose, leaked because of defective material and poor workmanship; and it was held irrelevant to prove that.other barrels, made by the same cooper, during the same season, through the same process of manufacture, out of timber cut from the same forest, were tight.</p> <p>Written reports, regularly emanating in the ordinary course of the public business of United States, out of the Treasury Department, and regularly prepared as part of his official duty, by an official or deputy, are substantive evidence of the existence of facts concerning which it was the duty of the official to inform himself and to make the report.</p>

<p>Estoppel in pais does not arise against one who-seeks to recover expense incurred in shoring up his building to protect it against an excavation by his neighbor to a depth of twelve feet, said shoring up having been done and paid for by plaintiff before the twelve foot excavation law was declared unconstitutional, and in the belief that it was a valid law.</p>

<p>A property owner who signs a petition to the county commissioners for a free turnpike, has the right to withdraw from the petition at any time before the final order for the improvement is made, and this he may do in any manner that will indicate unmistakably his intention to withdraw his consent and become a remonstrator instead of a petitioner. But until he has indicated his intention in an unmistakable manner, he is still to be regarded and,may be counted as a petitioner.</p> <p>Where it appears in such case that a property owner signed both the petition for the road improvement and the remonstrance against it, it does not follow that because the evidence in the court of common pleas on appeal shows that he signed the remonstrance last, that therefore he is to be counted against the improvement. but the question is, what was the evidence before the commissioners of the fact that he had signed the remonstrance last.</p> <p>After the county commissioners have acted upon the petition and ordered the improvement and the improvement has been made, the presumption is in favor of the finding of the commissioners, and the burden is upon the remonstralors to prove that a majority did not stand in the position of petitioners at the time the improvement was ordered.</p> <p>AVhere at- the time the order of the county commissioners for the establishment of a free turnpike was made, the statute authorized the commissioners to extend the time of assessment for the same to ten years in addition to the eight years provided for in the petition, an amendment of the statute passed subsequently to such order, extending the time for which the assessments for such pikes could be levied to fifteen years, has no application to such road improvement, and where the commissioners after the passage of such amendment of the statute, extended the, assessment to twelve years, such assessments beyónd the ten years are invalid.</p>

<p>The expressions of a man standing upon the verge of eternity, with the grave yawning before him, with every indication of dissolution, can not be said to be those of a man of sound mind and memory, and a will made under such conditions will not be admitted to probate.</p> <p>It is the object of a last will that it shall be such a disposition of one’s property, to take after death, as would be the result of deliberate judgment, of care and caution.</p> <p>A testamentary disposition should indicate the wishes of a man absolutely free from pains, that are incident to death, and rather than the testator’s will made under such circumstances should be upheld, the law will make a new will for him.</p>

<p>A chattel mortgage executed to one who has notice of a prior mortgage on the chattels, is subject to such prior mortgage in the hands of the assignee of the later mortgage who himself had.no such notice.</p> <p>The taking of a new mortgage within the time of refiling the old mortgage, saves and continues the lien on the property, if all things have been done in good faith.</p>

<p>Where a verbal contract may he performed within a year it is not within the statute of •frauds., ^</p>

<p>The act of April 23, 1898, O. L., 637, does not authorize the board of trustees of the Cincinnati Southern Railway to borrow a sum not exceeding two millions, five hundred thousand dollars, and to issue bonds for the same for the purpose of constructing terminal facilities for said railway, unless the said board of trustees have previously entered into an agreement with the lessee of said road by which agreement the lessee agrees to pay to said board of trustees each year, by way of additional rent, an amount sufficient to pay the interest on the bonds and provide a sinking fund sufficient to pay the interest on the bonds at their maturity; and the question of the issue of the bonds shall have been approved by the Trustees of the Sinking Fund of Cincinnati and approved by the people of Cincinnati at an election at which such question was submitted to them.</p>

<p>A taxpayer of Hamilton county who has previously requested the solicitor of said county to begin an action in a court of competent jurisdiction to enjoin the completion of a contract entered into by officials of said county in contravention of law, on the refusal of said solicitor to begin such an action, may himself commence such an action in the name of the state.</p> <p>A law authorizing the commissioners of a county to borrow money, and issue the bonds of the county therefor, for the purpose of raising money to construct and furnish an armory for the militia of the state, is unconstitutional and void. Hubbard, Trcas., v- Fitzsimmons, 57 Ohio St., 436.</p> <p>Money paid into the county treasury voluntarily by taxpayers of said county under a levy of taxes to meet the interest and create a sinking fund for the payment of said bonds at maturity, must be devoted to the purpose for which it was collected; and the treasurer of the county cannot be enjoined at the instance of a taxpeyer from paying the same to the holders of the bonds; the treasurer; however, will be enjoined from collecting any levy of taxes for such purpose in the future.</p> <p>Bona fide purchasers of county bonds issued by officers having no authority to do so will not be protected, and the bonds are void.</p> <p>As the statute provides that the taxpayer may have an injunction in cases where “a contract in contravention of the laws of this state has been or is about to be entered into or has been or is being executed,” the taxpayer is not by the statute compelled to enjoin an illegal contract at any particular time, but has such right until the completion of the contract.</p> <p>. A person, by laches, may be prevented in a period of time less than that provided for in the statute from asserting any claim to relief, where the conduct of such person may have created an estoppel against him.</p> <p>Where,the Supreme Court of a state has decided in favor of the right to issue certain bonds, and the same are issued on the faith of such decision, a subsequent decision of said court, denying the right to make such issue will not be permitted to invalidate the bonds. Gelpcke v. Dubuque, 68 U- S. (i Wall.), 175.</p> <p>Questions not made in the court of first' instance, nor assigned for error in the lower court, will not be considered by the Supreme Court and cannot therefore as having been decided by the Supreme Court.</p> <p>The United States circuit court of appeals in the case of The New York Life Insurance Co. v. Board of County Commissioners of Cuyahoga county has not held that bonds issued by a county for armory purposes are valid.</p>

<p>Assignees are creatures of law, representing-both the assignor and all the creditors of the insolvent. They hold title to property upon well defined legal conditions and for certain specific purposes, and are powerless to do any act independent of the rights of all the creditors ; and can make no disposition of real or personal property without the action and orders of the probate court.</p> <p>Under sec. 6350 R. S., an order by the probate court authorizing the assignees to continue-the business of the assignor can only issue when the probate court is satisfied that it would befo the best interest and advantage of the creditors, and upon the written application of three-fourths of .the creditors, in number and amount, and such an order issued on the mere motion of .the assignees, is without authority and' everything clone under it is void; and the assignees acting under it, render themselves liable and will be required to account for whatever was in their hands, at the time, in such a manner as that the interests of the stockholders shall not be impaired.</p> <p>Where assignees of an insolvent corporation, after having obtained an order for the sale of a stock of merchandise, appraised at $23,000, at private sale for not less than two-thirds of its appraised value, reported, without waiting for the expiration of the time fixed for making such sale, that they could not make a sale at the figure named, but could sell for $12,000, and it is made to appear that while the goods; were nominally sold to other parties, they were paid for with money furnished by the assignees and were in fact sold and subsequently turned ■over to them, the sale is void.</p> <p>Assignees making such sale, and acting under conditions referred to, without compliance with the statute, may be held for the appraised value of the. stock, less bona fide payment's-, and to interest upon the difference between that amount and the amount for which the sale was</p>

<p>To state a case of action for negligence, the plaintiff must allege facts showing such relation as entitled him to the exercise of care on the part of the defendant for personal safety. .This puts the parties in jural relation. Next he must allege the negligence of the defendant, which is sufficiently and properly done by stating the act or omission of the act complained of and characterizing such act or omission as negligent; This constitutes the delict. Then there must be allegations which show that the injury, which must also be stated, is the result of the negligence stated in order to establish a nexus between the alleged negligence and the' injury sustained.</p> <p>The allegations in a petition, in an action to recover for loss of life alleged to have been caused as the result of negligence on the part of ‘defendant, must be definite, affirmative and absolute, and it is not sufficient that the plaintiff should state facts that make it probable that the defendant is liable, although a statement of facts with the necessary inferences arising from the facts stated is sufficient, if it shows the liability.</p> <p>A petition which not,only fails to allege positively that an explosion and death were the results of negligences alleged, but fails to state the facts from which such condition is the necessary inference, and that there is no ground from which to infer that no other cause could have produced the explosion, is not sufficient. The petition in this case, after stating the negligencies, merely alleged that “the death of said August Wacbs was caused wholly and solely through the negligence of the defendants,” and is held to be insufficient.</p> <p>Averments in a petiton which need not be denied or put in issue, or upon which an issue would be immaterial, may be stricken out on</p> <p>Motion to strike out and to make definite, motion.</p>

<p>After an administrator has been removed and his successor appointed and qualified, the probate court has no jurisdic'ion to compel the former administrator to file an account.</p>

<p>Witnesses who are subsequently subpoenaed bv the state to testify as experts in the trial of one charged with a felony, are not entitled to compensation for their time and services out of the county treasury, in addition to the statutory per diem fees and mileage.</p> <p>Neither the prosecuting attorney nor the commissioners of the county have authority to make an agreement that will bind the county to pay expert witnesses extra compensation for their time and services.</p>

<p>Action against a physician for malpractice— Limitations—</p> <p>An action, begun June 27, 1899, against a physician who had performed an operation on a patient on November 30, 1897, and attended her until sometime in April, 1898, when th' last services were performed, except that in November, 1898, she went to his office, not to consult him but to accuse him of malpractice, cannot be maintained as such action was not brought within one year after the cause Revised Statutes.</p>

<p>Liability of master for acts of sei-vant—</p> <p>The test of a master’s liability for the acts of his servants is whether the injury commit-ed by the authority of the master expressly conferred or fairly implied from the nature of the employment and the duties incident to it.</p> <p>2. Same — General rule—</p> <p>The general and inflexible rule in such case is that for all acts done by the servant under the express orders or direction of the master as well as for all acts done in the execution of his master’s business within the scope of his employment, the master is 'responsible, but when the act is not within the scope of his employment, or expressly or impliedly in obedience to the master’s orders, it is the act of the servant and not of the master, and the servant alone is responsible therefor.</p> <p>3. Same Liability of landlord to tenant for acts of landlord’s servants—</p> <p>The owner of a leased building is not liable to his tenant, for the acts of painter employed by him to enter the leased premises, in the absence and without the knowledge or consent of the tenant, in mutilating, destroying and carrying away personal property belonging to the tenant, unless such acts were authorized, directed or ratified by the owner, although such entry into the premises might have been a trespass.</p>

At the municipal election held in the village of Bond Hill on the first day of April, 1901, there were two candidates for the office of solicitor of said place, viz., Orín W. Bennett and Charles H. Jones. There were three tickets printed on the ballot used at said election designated respectively, Independent, Citizens and Progressive.

<p> Notice of Intention to Add to Tax Valuation of Real Estate. </p> <p>A statute providing for serving a legal notice by leaving a copy with the person to be) served, is not complied with, by the process server handing the notice to the person, who immediately hands it back to the server, who departs with it in his possession, and such) service is insufficient.</p>

<p>A statute, the effect of which is to confer upon the common pleas courts of certain counties a jurisdiction in certain proceedings which is denied to such courts in other counties, is unconstitutional because of lack of uniformity.</p> <p>Where such unconslitutionality permeates a provision contained in such statute conferring the same jurisdiction upon superior courts in cities where there are such courts, is being interwoven and dependent upon the other provision, both provisions must fall together.</p>

<p>An injunction will lie against the operation of a drop hammer and the maintenance and operation of a blow pipe or smoke stack in a manufacturing plant, at the suit of a property owner in the vicinity whose house and household goods are injured thereby.</p> <p>In such case damages will not be allowed plaintiff for depreciation of the household goods where there is no standard by which to equitably measure the damage arising) directly from defendant’s acts.,</p>

This application was filed in the probate court of Scioto county, and was signed by N. W. Evans, J. J. Gist and Amanda Wilson, the latter a step-daughter of the respondent.

<p>(1) A contract of sale which does not specify the number or amount of the articles to be sold and bought, or from which such cannot be ascertained to a reasonable degree of certainty is void.</p> <p>(2) A contract of sale for “about” 500 of a certain article means 500 of the articles.</p> <p>(3) Where a custom of trade is relied on it should be pleaded.</p>

(1.) Motion to set aside entry of dismissal. {2.) Motion for leave to file cross-petitions. (3.) Motion to compel return of exhibits.

<p>In the construction of an ambiguous covenant appearing in a deed the words must be taken in their ordinary sense; the intention expressed by the words used may be gathered from the surrounding circumstances, and if the parties themselves have put a construction upon the instrument that construction will be followed by the court.</p> <p>1 If land is laid out for sale as building lots and put upon the market as subject to conditions or' restrictions that are held out to purchasers, as applying to the whole tract so as to create a general plan of subdivision,; any person taking the lots with either actual notice as by covenants 'embodying the conditions or restrictions appearing in the chain of title of the lots or constructive notice as by the plan itself, will be bound by the conditions, and a court of equity will aid any purchaser in preventing any of the other purchasers of owners from defeating the plan.</p> <p>Such a plan is not abandoned until the parties have waived' the rights accruing to, them from the covenants or general plan,' or until the plan is so far abandoned that the original purpose is defeated thereby.</p>

<p>Where after the appointment of a receiver for a partnership firm, a draft in payment of money due the firm, was drawn by a government engineer on the assistant treasurer of the United States, and by him mailed to the firm, the engineer having been advised by such receiver o'f his appointment, which draft falling into the hands of a member of the firm was by him negotiated at a bank, for full value upon his endorsing it in his own name and in the name of his firm, the receiver is entitled to such draft, and the" discounting bank has no interest in or title thereto, although at the time it discounted the draft it had no knowledge that a receiver of such firm had been appointed.</p> <p>By the appointment of a receiver of a partnership the possession, control and disposition of the firm property are taken away from the partners and given to the receiver, and neither partner can thereafter interfere with the receiver in the settlement of the partnership affairs.</p> <p>A receiver is the ministerial officer of the court which appoints him and his possession is the possession of the court.</p> <p>Any interference with a receiver or with, the property under his protection amounts to contempt of court.</p> <p>The object of having a receiver appointed of a partnership is to place tho partnership assets under the protection of the court and to prevent everybody except the officer of the court from in anyway inter-meddling with them.</p> <p>A receiver of a partnership takes the' whole equitable title to the partnership property of all parties to the suit in which1 he is appointed.</p> <p>When a draft was negotiated by one hav-< ' ig no authority to do so, the burden is upon the party discounting it to show such a state of facts as under the law will confer upon it a good title.</p> <p>A bank discounting a draft payable to a. partnership with which it has never had any dealings, at the instance of one of the) partners, is bound to ascertain who and what the company is, and what are the relations to the company of such partners.</p> <p>One partner cannot after dissolution of the partnership, without the consent ofi the other partner, endorse a note belonging* to a firm, so as to pass the legal title to the note to the assignee.</p>

<p>In an action against an electric street railway company for personal injuries, the question of plaintiff’s negligence in driving upon the track of defendant without stopping to look whether or not a car operated by electricity might bring about a collision, is for the jury.</p> <p>A city ordinance providing that the schedule time for operating cars over an electric street railway shall not exceed ten miles an hour, is invalid as being unreasonable in allowing such cars to be run at any rate of speed provided the schedule time in going over the entire route does not exceed ten miles per hour.</p> <p>Under the ordinances now in force in Cincinnati electric street cars may not be run at a greater rate of speed than six miles an hour.</p>

<p>An injunction, pendente lite will not he granted unless the right to it is clear, and unless it he further shown that justice cannot be meted out on final decree if everything be not kept in statu quo until final decision.</p> <p>An injunction pendente lite will not he granted in an action to enjoin a city and an electric railway company, and the city officials from carrying into effect the provisions of an ordinance, granting to such company a new franchise on the ground that the passage of such ordinance was an abuse and in excess of the corporate powers of the city, where it appeared that the provisions of such ordinance were more beneficial to the city and its citizens than was the franchise under which the company was operating before its passage.</p> <p>If after the bringing of such action for injunction, the alleged illegal ordinance is published as required by law, and the railway company accepts its terms, and upon final hearing the ordinance is declared void, the court has power to set aside the ordinance, cancel all rights and privileges taken thereunder and enjoininng their further enjoyment.</p> <p>In such an action brought by a citizen on behalf of the .city, another citizen will not be granted leave to be made a party defendant and to file an answer and cross-petition no new facts being set up, which cannot be incorporated into plaintiff's petition by amendment.</p>

<p>(1) A fact in controversy in a civil action is proven if the weight of the evidence preponderates in favor of such fact, although there may be doubt about it.</p> <p>(2) A jury may give to the testimony of a witness much, little, or no weight, in determining which it may take into consideration his intelligence or want of intelligence, his interest or want of interest in the matter testified by him, his manifest fairness or unfairness, the consistency or inconsistency of his statements, and the reasonableness or unreasonableness of what he says.</p> <p>(3) Common law marriages are valid in Ohio.</p> <p>(4) Where a man and woman were united by a marriage ceremony, the woman being at the time married to another man, which marriage was shortly afterwards annulled by divorce, although such marriage ceremony was void, if they both believed she was marriageable, and understood that they were then becoming man and wife, and then and thereafter sustained that relation in good faith, they would be legally man and wife from the time of the dissolution of the former marriage.</p> <p>5. A common law marriage resting upon the agreement of parties and the consummation of that agreement, if not entered into in good faith, or if made for some fraudulent or improper purpose would not make the parties husband and wife.</p> <p>(6) The fact that, in an application for life insurance, parties falsely represented themselves as husband and wife will not defeat the policy, if at the time they, in good faith, believed themselves to be such.</p> <p>(7) Such statement, or any false statement made in such application, in order to defeat the policy, must have been wilfully false, and made fraudulently with intent to deceive and mislead the company, and must have been material in the matter of inducing the company to issue the policy.</p> <p>(8) A material fact, as applied to statements in an application for insurance, is one which if communicated to the insurer, would either induce him to decline an insurance' altogether, or not to accept it unless at a higher premium. ■ ' ■</p> <p>(9) A life insurance agent soliciting arid groeuring for an insurance company risk's, ¡ and applications upon which policies are to be issued, who fills up the application, is, in so doing, the agent of the insurance company and not of the insured or of the one making application for the insurance, and if the agent makes a mistake in preparing the application and stating the facts in it, the insurance company is bound by it and is responsible for such mistake.</p> <p>(10) The beneficiary "in a life insurance policy cannot recover, thereon, if the insured died from the effects of poison administered to him either with or without his knowledge or consent, by such beneficiary.</p> <p>(n) If such insured died from the'effects of poison, taken by him with the knowledge, or consent of such beneficiary, with the intent to commit suicide for the purpose of enabling the' beneficiary to collect from the insurance company the sum of money named in the policy upon his life, the beneficiary cannot recover.</p> <p>2. If such insured died from the effects of poison, which was knowingly permitted by* such beneficiary either with or without the knowledge or consent of insured to be given to him, with intent on part of such beneficiary to allow the poison 'to cause his death, such beneficiary cannot recover on the policy.</p> <p>3. If a written application for a life insurance policy was made to the company by the insured or by the beneficiary therein 'named, in furtherance of a conspiracy theretofore entered into between such insured and such beneficiary to cheat and defrauh the company either by having the insured simulate death, or commit suicide for the purpose of enabling the beneficiary to collect from the company the sum of money stated in the policy, such beneficiary cannot recover.</p> <p>4. If the insured died from the effects of poison taken by him without suicidal intent, but with intent and in the belief that-it would enable him to simulate death for the purpose of having the beneficiary named in the policy collect on the policy, such beneficiary cannot recover.</p> <p>5. If the insured died from the effects of poison, and while suffering from the effects thereof was under the exclusive care and control of such beneficiary, who was at the time aware that such poison had been given him or taken by him, and that he was then suffering from the effects thereof, and fraudulently intended to permit such poison to cause his death, and neglected to administer to him remedies prescribed by his physician, or concealed from such physician the fact that insured was then suffering from the effects of such poison, such beneficiary cannot recover on the policy.</p> <p>6. If such insured died from the effects of poison, and his written application to the insurance company was made, and the poison was either given or caused to be given to, or taken by the insured, or permitted by such beneficiary to be taken by him, in furtherance; of a conspiracy entered into by and between such beneficiary and the insured to thereby cheat and defraud the company, such beneficiary cannot recover on the policy.</p> <p>7- The testimony of expert witnesses if it fits the facts proved in a case, as to their opinions, is entitled to such weight as is due to their skill, experience and knowledge.</p>

<p>t. A way constructed and kept in repair by a private corporation, upon its own land, for its own uso and the convenience of tenants occupying its dwelling houses upon both sides thereof, opening into a public street, having a sign “Private property, Trespassers will be prosecuted” at one or more points near such traveled way, but left open to public travel for several years, is not thereby dedicated to the public.</p> <p>2. A person who occupies premises as the servant or agent of another for the morei convenient performance of his duties, acquires 110 estate therein, is neither a tenant at will nor by sufferance, even though he is permitted to carry on an independent business therein, and less wages are paid him on that account. In such, and indeed, all cases, where the possession is given for a special purpose the transaction is treated as a license, not as a lease, and does not confer any estate in the property to which it relates, and is determined whenever the special purpose is accomplished.</p>

<p>(r.)' In the absence of prohibitory statute? a combination or compact for the simple purpose of controlling prices and thus restricting competition, is not of such illegality as will confer a right of action upon those injuriously affected by it, not members of the association.</p> <p>(2.) One has a right to decline to contract, cieal, or to do business with another, no matter what the motive compelling the declination may be and whatever one may lawfully decline to do singly, two or more may jointly agree not to do.</p> <p>(3.) An association of insurance agents, companies and underwriters for the purpose of regulating the rates of insurance and restricting competition and the members thereof are not liable for damages or injunction at the suit of a non-member of the association, for refusing to transact business with him, so long as he remains outside of the association, nor for compelling their members upon penalty of fine or exprdsion from the association to refuse to have an office with him, or to recognize him in any way, in the insurance business.</p> <p>(4.) Such assessment of penalties on the members of the association, does not amount to coercion, where the same have been assumed by the voluntary agreement of the members, the members themselves not being the parties complaining thereof.</p> <p>(5.) As between such association and person not a member thereof, the sending by such association to its members, upon ascertaining that plaintiff a non-member of the association was officing with a member, of circulars to all of its members announcing plaintiff’s non-membership and calling attention to its rules is not an unlawful or coercive act.</p> <p>(6.) The sending to the insurance company represented by plaintiff as agent, a notice by mail, from such association that plaintiff was not a member of the association is not an unlawful or coercive act.</p> <p>(7.) Such an association does not fall within the inhibitory provisions of the antitrust law, 93 O. L., 143, entitled “An act to define trusts and to provide for criminal penalties and civil damages and punishment of corporations, persons, firms and associations or persons connected with them, and to pro-mete free competition in ' commerce and all classes of business,” as insurance was not contemplated by the legislature in passing such act.</p> <p>(8.) Where an act is borrowed and copied .by the legislature of this state from a similar act of another state after it has been construed by the highest judicial tribunal of that state, such construction will be adopted by the court of this state.</p> <p>(9.) Plaintiff, not a member of such an association, cannot proceed for such injunction or damages under section 3695, Revised Statutes, providing certain penalties upon foreign insurance companies for entering, into compacts with other insurance companies or agents for the purpose of governing or controlling the rates charged for fire insurance on any property within the state.</p>

<p>(1) The statutory prohibition against any qualification, modification or explanation of a written charge to a jury applies to charge,* given before argument as well as to charge,si given after argument.</p> <p>(2) The law will presume injury where such, prohibition is violated.</p>

<p>1. Where a grant of a right of way is created in the following language “Also the full and entire right of way in, over, and upon a certain private alley twelve feet wide,’’which alley was owned by the grantor, and had been laid out by him between his lots. Held, that the grantor or those claiming under him have no right to erect a gate, or gates, at the entrance of the way, or to narrow the passage by gate posts.</p> <p>2. It is the duty óf the grantee of a right of way to keep the same in repair, and if he does not, the grantor cannot compel contribution from the grantee by himself making the repairs.</p>

<p>(1.) An action in forclosure to sell shares of stock in a corporation, pledged as collateral security for a note, and to have the proceeds applied in payment of the note is an equitable action, and the parties are not entitled to a jury trial.</p> <p>(2.) In such an action a decree may contain a clause that if the proceeds of the sale shall not be sufficient to pay the costs and the amount heretofore found due to the plaintiff the plaintiff shall have an execution for the deficiency.</p> <p>(3.) The record in such action in which appeared the amount found due on the note is admissible and conclusive in a subsequent action between the same parties for a personal judgment on the note, on the question of the amount due on the note.</p> <p>(4.) In such case the fact that in the former trial the parties were not entitled to a jury trial and that if the issue had been tried in the second case the parties would have been entitled to a jury trial does not detract from the force of such fin ling as res judicata.</p> <p>(5.) Separate actions may be maintained, one for the strict foreclosure of shares of stock in a corporation pledged as security for the payment of a promissory note, and the other for a personal judgment on the note, and the pendency of one action will not be a bar to the other.</p> <p>(6.) Where in such case the decree in the foreclosure suit provides that an execution may issue for any deficiency remaining on the note after the application thereon of the proceeds of the sale of the shares, such provision is not equivalent of a personal judgment on the note, and its existence will not bar the right to secure the personal judgment.</p> <p>(7.) In such case but one satisfaction of the debt can be had, and any attempts upon the part of the plaintiff to secure double satisfaction will be prevented.</p>

<p>(1) A transfer and bill of sale of goods, part of which were merchandise, made in consideration of a past debt, and within less than ninety days before an assignment for creditors by vendor constitutes a conveyance fraudulent as to creditors.</p> <p>(2) A chattel mortgage of goods, part of which were merchandise, the goods remaining in the possession of the mortgagor with power to sell, the mortgage not being filed for record until after the goods had passed from the mortgagor’s possession to a third party, is void as to the mortgagor’s creditors.</p> <p>(3) The insolvent laws of Ohio an abrogated and superceded by the bankruptcy laws of the United States only in case of an application of the insolvent debtor for a discharge in bankruptcy; otherwise they remain in force.</p> <p>(4) _ The probate court has jurisdiction of an action brought by an assignee for creditors to recover the possession of assets of the insolvent conveyed by the insolvent in fraud of creditors, and to adjudge such conveyance and a chattel mortgage on the same goods to be fraudulent as to the insolvent’s creditors.</p>

<p>The deposition of a witness who does not speak English, taken in a foreign country, may be translated into the deposition, or it may be written in the foreign language, and translated from the deposition at the trial.</p>

<p>Where a known article, manufactured for a particular purpose, is ordered from the manufacturer, and both he and the purchaser understand that it is to be used for that purpose, there is an implied warranty that it shall be reasonably fit for such purpose.</p>

<p>1. A receiver will not be appointed to wind up the affairs of a debenture company which is desirous of going into voluntary liquidation, the liabilities of which do not appear to exceed its assets by an amount greater than can be collected from its solvent stockholders who stand ready to respond to any proper contribution that is required of them.</p> <p>2, Whether a corporation going into voluntary liquidation can be required to give bond for a faithful administration of its assets, quaere.</p>

<p>(1.) An electric street railway company, in the construction and operation of its road in a municipal highway, under grant of right from the municipality, is not liable to a lot-owner for injury to his trees standing in front of his lot, but within the lines of the street, if the injury results only from such interference with the trees as is reasonably necessary in the proper construction and operation of its railway.</p> <p>(2.) Where land is conveyed by deed absolute on its face, an express trust may be shown by evidence atiende; but the evidence must be clear and conclusive, showing such agreement concurrently with the conveyance, and its terms and conditions.</p>

<p>A reply in an action on account for goods sold and delivered, to an answer and cross-petition filed therein, setting up a breach of contract to furnish plaintiffs with certain templets and patterns, whereby plaintiff was prevented from furnishing defendant with certain goods and asking damages for such breach, sets up matter not connected with the original suit,, and will be stricken out on motion.</p>

This was a case involving the question of the right of the board of county commissioners, county auditor,- and county treasurer, to employ the defendant in his individual capacity, who was then prosecuting attorney of the county, to defend them in suits brought against them, in any action, which affected the public interests, and in. suits brought against public officers in their official capacity, for at.tempting to perform some duty enjoined upon them, by virtue of their…

<p>(1.) A demurrer will lie against a count in a suit for recovery from a ward of money advanced by her guardian, if there is no averment of an express promise, to pay.</p> <p>(2.) But where a guardian surrendered possession of his ward’s estate by operation of law and without opportunity to make himself whole, an equitable action may be maintained in his favor against the ward’s general estate for indemnification.</p> <p>(3.) And such a cause of action will lie for the subjection of a specific piece of property in which the money of both the guardian .and ward were invested.</p>

<p>The act of April 16, 1900, (94 O. L., 332, sec. 4362-4^ R. S.), providing that the probate courts upon written complaint sworn to by any person, that a person engaged in the traffic in intoxicating liquors has refused or neglected to pay the "Dow” tax, shall notify such party requiring him to appear and show cause why their said business should not be assessed for such tax, is constitutional.</p>

<p>(1.) The appellate jurisdiction of the circuit and common pleas courts are matters of ;ereral nature, and any statute affecting them must conform to the provision of section 26, article 2 of the constitution, and have a uniform operation throughout, the state.</p> <p>(2.) The act of the General Assembly, passed April 27, 1896, entitled “An act to amend section 1, of an act entitled ‘An act to confer further jurisdiction upon probate courts in certain counties therein named’ passed May 19, 1894,” does not have a uniform operation throughout the state, and is repugnant to section 26, article 2, of the constitution in two respects: (1.) In that it deprives the common pleas court of jurisdiction to reverse, vacate or modify judgments of the probate court, in the-matters in which jurisdiction is conferred in said article 2. In that it confers appellate jurisdiction in said matters upon the circuit court.</p> <p>(3.) The part of section 1 of said act so •depriving the common pleas court of error jurisdiction, and conferring appellate jurisdiction on the circuit court, being unconstitutional, and being so connected and involved in the scheme of the legislature to establish the jurisdiction of the probate court, in the matters contained in the act, the conclusion is irresistible that it would not have passed that part of the act conferring the jurisdiction on on the probate court without making provisions for appellate jurisdiction.</p> <p>The whole act is therefore vitiated by the unconstitutional part, and is unconstitutional.</p>

<p>(1.) The clerk of a village, by virtue of his office, is also the auditor of the village, and as such has no right to collect village ássessments or handle the money of the village.</p> <p>(2.) Although, the village council may, under sec. 2693, R. S., pass an ordinance providing for the appointment and control of the necessary officers to levy and collect taxes within the corporation, it can not appoint the village clerk, who is ex-otRcio auditor, to collect assessments because such duties are incompatible with the nature of the office of auditor, who is a check upon the village treasurer.</p> <p>(3.) The word “charged” as used in sec. 6841, R. S., which provides that, “whoever being charged with the collection, etc., of public money,” may be guilty of embezzling it, means' enjoined by law with doing all necessary acts to collect the money, even to enforcing payment by suit; and it does not mean merely an authority given to collect the money with no power to enforce the collection, such as was given to the village clerk in this case.</p> <p>(4.) A defendant indicted for embezzlement of public funds while holding a public office is not estopped from denying that the money taken came into his hands by virtue of his office, but the allegation of the indictment to that effect is a material one and must be proved beyond a reasonable doubt like any other material allegation. |</p>

<p>(1) Where a city board of equalization of taxes is constituted in conformity with law, and its members are acting only on such matters as are within their jurisdiction, a court of equity cannot act upon allegations which impeach their motives or the legality of the manner of their appointment.</p> <p>(2) A court of equity is not a court of errors to review the acts of public officers in the assessment and collection of taxes, and it will not revise their decisions upon matters within their discretion, if they have acted honestly.</p> <p>(3) Where a law prescribes a particular manner o,r designates a particular proceeding or tribunal for the adjustment of inequalities in matters of taxation, the parties must avail themselves of such remedy, and will not be allowed to waive such relief and seek in equity to enjoin the action of such tribunal.</p> <p>(4) Courts of law and equity are powerless to give relief for excessive assessments of taxes, except as they may "be especially empowered by law to do.</p> <p>(5) The statutory remedy is the only remedy for an irregular assessment of taxes.</p> <p>(6) Secs. 5848, 5849, 5850 R. S., providing for the enjoining of the illegal levy of taxes, do not apply to cases where the levy has not been completed by the proper officers provided by law.</p> <p>(7) Sec. 2805, R. S., relating to the city board of equalization of Cleveland is not unconstitutional as being a special law relating to a matter of a general nature.</p> <p>(8) The city board of equalization of Cleveland is not illegally constituted by reason of the fact that the appointing power of the members thereof is vested by law in the mayor.</p> <p>(9.) Injunction will not lie to restrain a board of equalization from making an addition or increase in the personal property of plaintiff, over and above the return thereof as made, on the ground that such board is intending to make an excessive erroneous collusive or fraudulent assessment.</p> <p>(10) In such case the plaintiff’s remedy is-to wait until the assessment is made or valuation raised and then proceed as provided by-statute.</p>

<p>An agreement made by a railroad company through its chief engineer and signed by him for the company in order to settle a law suit, with the trustees of a township, that such trustees should have the right to remove gravel irom a certain tract of railroad right of way land, and the use of such land for such purpose, is not a deed or lease required to be signed by the president of the company, .under the seal of the company under sec. 3283, R. S., but is a mere contract in the nature of a license and as such is valid.</p>

<p>Jurisdiction upon the part of the Annual Board of Equalization to add to the tax valúa tion of certain property belonging to. Mrs. E was not obtained where the citation server, not finding Mrs. B. at home, went to the business office of her husband and served the notice upon him, the husband representing that he was agent for his wife.</p>

<p>' An attorney appointed guardian ad litem of a minor defendant and who acted as attorney in the defense of an action against the minor to recover damages for assault and battery is not entitled, upon the successful result to his ward, to an allowance, as costs, of an attorneys fee for his services as such attorney.</p>

<p>CHARGE TO JURY.</p>

<p>(i.) An action by a citizen against a municipal officer to restrain the execution of a contract, as authorized and directed by an ordinance of the city, brought under secs. 1777 and 1778, R. S., is an action to enforce the trust relationship between such city and its officers, in the execution of their trust and lhe_ preservation of the rights of the municipality as against the wrongful acts of its agents of officers.</p> <p>(2.) In such action the only question that can lie presented is the one of whether or not there has been a violation of the trust existing between the city and its members on the one hand and its officers and agents on the other.</p> <p>(3.) I11 such an action railway companies cannot become parties defendant and by answer or cross-petition seek to enforce rights which they claim vested in them by such ordinance.</p>

<p>Contracts founded upon bids made by a municipal corporation for furnishing and laying water pipe for the city, cannot be paid for out of an appropriation for a waterworks fund, appropriating a certain amount for “salaries and wages” and another sum for “materials and supplies” and if there is no other fund applicable thereto, the execution of and payments under such contracts may be enjoined.</p>

<p>' (i) It is not the duty of the court in all cases to either absolutely grant or overrule the motion for a new trial. Cases frequently arise where the motion for a new trial is addressed to the discretion of the court and in such cases, ¡if a new trial is ¡granted, it may be granted upon condition.</p> <p>(2) Where the -applicant for a new trial, ¡through the inadventence or misapprehension of his attorney, failed-to offer material evidence upon the first trial and voluntarily, without fraud or mistake, gives a bond to pay any j udgmcnt rendered against him in a new trial, wheich is granted upon- the giving of the bond, not because applicant was entitled thereto, but solely in furtherance of j ustice, such bond, unless prohibited by statute, constitutes a valid common law obligation.</p> <p>(3) The granting of a new trial, under circumstances sated, where no legal right thereto existed in favor of the applicant, constitutes a sufficient consideration for the bond required.</p> <p>(4) A party who voluntarily, without fraud •or mistake, gives a bond required as a condition to a new trial, granted in furtherance of justice and to which applicant was not legally entitled, and who receives the benefit of a new trial, is estopped from denying liability under the bond.</p> <p>(3) An error in overruling the motion for a new trial, which the court declines to grant unless applicant will give bond, is waived by subsequently giving the bond and obtaining the new trial.</p>

<p>Vacation of judgment after term—</p> <p>(1.) A judgment for plaintiff cannot be vacated under secs. 5357, 5358, 5359, 5360, R. S.,. without a previous adjudication that the defendant has a good and valid defense to the action.</p> <p>Same — Sufficiency of findings thereon—</p> <p>(2.) The findings in an entry vacating a judgment that there was a meritorious defense” is not an adjudication that there is a good and valid defense to the action, where the record is silent as to what the nature of the defense was, as to whether any issue was made upon it, and as to whether that issue was appropriately tried and determined.</p>

<p> Stockholder’s action in behalf of corporation. </p> <p>1. Where by reason of the negligence of directors corporate funds, property or rights have been lost, and the corporation is under the control of the guilty parties, or refuses to sue when requested by a stockholder to do so, the stockholder himself may sue in his own behalf and in behalf of all other stockholders who may wish to come in, to compel the guilty parties to make good to the cor-^ poration the losses sustained.</p> <p> Pleading must show refusal to bring action. </p> <p>2. But in every case where the individual stockholder is allowed to bring his action for any injury done to the- corporate body, he must state in his pleadings that the corporation or those who represent it are unwilling to prosecute, and. upon being requested to do so, have declined.</p> <p> Rule applicable to assignees and receivers— </p> <p>3. The rule stated in the preceding paragraph applies not only to the cases of corporations whose affairs are'still in charge of their own elected officers but also to corporations whose affairs are in the hands of officers of the law, such as assignees and receivers.</p> <p>Exercise of equity powers — Collateral attack— ,</p> <p>4. Will ere a court has the power to appoint a receiver, which belongs to equity u:_ ler certain circumstances, the exercise of that power, however erroneous, cannot be collaterally attacked.</p>

<p>Title to property conveyed under a will partly destroyed—</p> <p>While the presumption is, in the absence .of other showing, that a man leaves his property to his heirs xqually, yet, in the case at 'bar, the will (having been partly destroyed by fire and remaining portions seeming to bequeath the property fo the widow, a deed from her to the eldest son, drawn by a lawyer who made an examination of 'the will before it was partly destroyed, prior to " making the deed, is .sufficient to establish title in such eldest son.</p>

The Bishops, owning some real estate, hired Wade, a broker, to effect a trade of it, and agreed to pay him $300 if he was successful. He found a purchaser whose real estate was encumbered by mortgage for $800. The trade was effected and deeds passed, with the understanding that Wade was to secure the cancellation of the $800 mortgage upon the land which the Bishops received.

<p>Act of April 16 1883, applicable to Cincinnati water-works department—</p> <p>The provisions of the act of April 16, 1883 [80 O. L., 125], creating a board of tax :om-missioners apply to the water works department ot the city of Cincinnati.</p>

<p>Claim for exemption in appellate court—</p> <p>1. A defendant against whom an attachment was issued and judgment rendered in a justice’s court, is entitled to set up his claim for exemption in an action of interpleader filed in the superior court by the garnishee, who has been ordered by tibe justice to pay the amount into his court, but has not complied with the order; and this is true notwithstanding no claim for exemption was made in the justice’s court.</p> <p>Order requiring garnishee to pay does not defeat exemption—</p> <p>" 2. The order of. a justice of the peace in attachment proceedings requiring a garnishee to pay the proceeds of a policy of insurance into court for tihe benefit of the judgment creditors is not an application of the fund to the creditors’ claims so as to preclude a claim for exemption therein, the selection being reasonable if made before the fund has actually come into custody of the court.</p>

<p>S, clerk of courts of Darke county, O., entered into a contract- with H, guardian of T and others, that if H as guardinan would commence a certain suit for his wards and prosecute the same to final determination, he would, in the case H was unsuccessful in the-suit and the costs were adjudged against him, release and make no claim against him for any costs to which he might be entitled and would save him, H, and his wards,-harmless froma-llexpenses in such proceeding. H, pursuant to such agreement, commenced suit and litigated the same through the Supreme Court but failed. During the pendency of the suit H fully settled and paid off his wards; S at no time renewed the contract, Held, in the suit by S., against H’s executor to recover the costs taxed in S’s favor, that such contract was void as against public policy. Held, further that H relying on the contract with S, having commenced and prosecuted the suit to final determination, and having finally settled with his wards, S in no way renouncing the contract while such litigation was in progress, cannot now recover; he having no right to be placed in a better condition than his contract placed him at the expense of H.</p>

<p>An ordinance requiring bill posters to takeout a license before posting bills or distributing advertising matter, is in conflict with the federal constitution providing that the rights of the citizens of one state shall not be abridged by the residents of another.</p>

<p>1. In an action on a contract against a municipal corporation and its contractors by an assignee of the contract, where the city has filed an affidavit under Sec. 5016, R. S., averring that the subject of the action was money in its hands and praying that the claimants named therein may interplead and be ordered to settle their claims among themselves, and an order made for the deposit of the money in court and requiring such claimants to appear before the court on a day named and maintain their claims to such money, a demurrer will not lie to the original petition, by one of such claimants, on the ground that it does not state facts sufficient to constitute a cause of action against him, nor entitle plaintiff to the relief sought against him,, nor to require him to interplead to the petition-</p> <p>2. A petition in such action alleging a contract between the city and the defendant contractors for the construction of a sewer, the assessment and transfer thereof by such contractors to plaintiff for a valid consideration therein named, the completion of such contract by the contractors, the acceptance thereof by the city, a final estimate issued by the city engineer as the amount still due thereunder from-the city, a certain payment made thereon, a refusal to pay the balance or any further sum, the amount still due to plaintiff, which the city refuses to pay, and praying judgment therefor, states a cause of action against the city.</p> <p>3. Where a party is ordered by the court to interplead in an action, and the subject of the action is not claimed by him, his proper' course is to answer, disclaim, or not to plead' at all, and is not by a motion to modify the-entry of the order of interpleader.</p> <p>4. Where plaintiff alleges in his petition the whole amount due on- a contract, and prays judgment for a part of it, and there are conflicting claims to the whole amount due, the defendant may under Sec. 5016, R. S., pay such amount into court, and obtain an order requiring the claimants to interplead in the action and set up their different claims thereto.</p> <p>5. The delivery contemplated by [he mechanics’ lien law is such a delivery as vests in the head contractor the lien or ownership of the materials for which a lien or claim to priority is sought.</p> <p>6. Under a contract by a sub-contractor with a sewer contractor to furnish the latter with what brick he may need for the construction of a certain sewer, such brick to be acceptable to the engineer in charge of the work, the brick to be counted as delivered and any culls deducted in final settlement, the delivery of the brick does not take place, within the meaning of the mechanics’ lien law until the last lot has been inspected and approved or rejected by such engineer.</p> <p>7. A sub-contractor cannot claim a lien on the amount due a sewer contractor from a municipal corporation for the construction of a sewer, when the last itenj furnished was not furnished for nor used in the construction of such sewer, and the other items were furnished more than ninety days from the time the affidavits and notices required by the mechanics’ lien law to be filed, although the last item was furnished within such time.</p> <p>8. Where under a contract between a subcontractor and a sewer contractor to furnish the latter with a certain quantity of brick to be used in the construction of a certain sewer, the sewer contractor, without the consent of the sub-contractor, diverts a portion of the brick so furnished to the construction of another sewer, the sub-contractor is entitled to a lien for all of the brick furnished on the amount due the sewer contractor under his contract with a municipal corporation for the construction of the sower for which the brick was furnished, although such sub-contractor, after the brick had passed from his possession, knew that a portion of it was being diverted.</p> <p>9. In See. 3203, R. S., (mechanics’ lien law) providing that an assignment by a head contractor of his contract shall be subject to the claims of laborers, mechanics, sub-contractors •or material men “who has furnished any labor, material,” etc., the words “who has furnished” were not intended to fix qualifications of time with reference to such assignments, or to limit the class of protected persons, but were intend■ed to preclude all assignments by the head contractor of his contract, irrespective of the nature of the assignments, or of the time when made, with reference to the work and labor performed by laborers or materials furnished, by material men.</p> <p>10. Under such section the rights of the assignee under an assignment, by a sewer contractor with a municipal corporation, of his contract to a bank, in consideration of advances made and to be made to’him by such bank, which assignment was filed with the city board of administration, on the date of its execution, when the contractor went on and completed the contract, are subject to the claims of laborers, material men and sub-contractors, who have not had actual notice of such assignment and who have perfected their liens in conformity to law, on the money in the hands cf the city, due on the contract, although such labor was performed and such materials furnished after the assignment was made and filed.</p>

<p>(1.) The trust relation of a corporation to its shareholders clearly exists in Ohio to the extent that a corporation, brought into court for an accounting by its creditors, may ask the instruction of the court as to its duties in the premises; and this principle is true- whether the corporation be solvent or insolvent.</p> <p>(2.) The state treasurer holding funds of a corporation deposited with him under the provisions of section 382m R. S., (amended April 14, 1900), is a trustee for the corporation and its creditors, with- no beneficial interest in the funds; and in a proceeding in equity by the corporation as a trustee with respect to the distribution of its assets, which, include the funds so deposited, the said treasurer is not only a proper but a necessary party.</p> <p>(3.) Shareholders and creditors have the right to intervene in a suit for the winding up the business of - issuing certificates or debentures by a corporation engaged in carrying on business in this state.</p> <p>(4.) The courts of Ohio have jurisdiction to wind' up that part of the business of a f eign corporation which is conducted in Ohio, and which has been interdicted by the laws of Ohio.</p>

<p>Pleading — Petition to enjoin acts.of municipal officers—</p> <p>(1.) It is not necessary in a petition under -sec. 1778, R. S., to restrain the illegal acts of the officers of a municipal corporation, th :t the ■caption should describe the plaintiff as a taxpayer, it being Sufficient if such fact be alleged in the body of the petition.</p> <p>Same — Including proposed expenditures in ■.various departments not misjoinder— ■</p> <p>(2.) A petition by a taxpayer against a municipal corporation and its auditor for an injunction against the making of anv contracts •or expenditures under an appropriating ordinance making appropriations for different funds or departments on the ground that such ■ordinance is void, does not improperly join •several causes of action, but is within sec. 5019, R. S., providing for the joinder of causes of .action in the same-.case.</p> <p>Municipal appropriating ordinances should •classify items—</p> <p>(3.) Under Sec. 2690 h, R. S., requiring that “detailed and specific appropriations for the several objects for which the city has to provide, apportioned to each month” shall be made in the appropriation ordinance, and Sec. 1693, R. S., providing that “every ordinance appropriating money -shall contain an explicit statement of the uses and purposes for which the appropriation is made,” a municipal ordinance which _ appropriates lump sums for certain funds is- void, as the ordinance should contain a classification of the expenditures in each department or fund.</p> <p>Same — Purpose of Statutes—</p> <p>(4.) The purpose of the statutes requiring such appropriation ordinances is to furnish the public, as far as practical, an itemized statement of the expenditures of the city government in every department, which can be quickly secured and readily understood, and such statutes should be so construed.</p> <p>Same — Ordinance appropriating sum in excess of estimate void—</p> <p>(5.) When in such an appropriation ordinance the appropriation for the fiscal year for a certain fuiid or department exceeds the amount of the estimate for that year, made by the auditor, • board of legislation and board of supervisors, as to such fund the ordinance is void'.</p> <p>Injunction—</p> <p>(6.) Injunction will lie at the suit of a taxpayer to restrain the expenditure of money or the making of contracts for such expenditure under said void ordinances.</p> <p>Necessity for passage and approval of appropriating ordinance—</p> <p>(7.) The passage of a valid appropriating ordinance and its approval as required by Sec. 2690j, R. S., is a condition precedent to the expenditure of any money or the creation of any liability by the city.</p>

<p>(1.) The Endowment Rank Knights of Pythias is not a fraternal beneficiary association, and sec. 3631-18 R. S., providing that the money, benefit, charity, relief or aid to be paid by such an association shall not be liable to garnishment, attachment or other process does not apply to such Endowment Rank.</p> <p>(2.) Money due on a certificate of membership in the Endowment Rank Knights of Pythias is not exempt from execution and attachment.</p>

<p>I'ire Insurance — Additional Insurance — Want of endorsement of consent not conclusive■—</p> <p>(1.) An insurance company will be estopped from setting up a forfeiture on the ground that consent to “other insurance” was not actually endorsed on the policy, if notice .thereof was given lo the company or its authorized agent and no objection was made thereto.</p> <p>Agent’s Authority—</p> <p>(2.) An insurance company cannot evade an estoppel by limiting its agent’s authority by printed restrictions. It is liable for'the acts of its agent to the extent that the company has permitted the agent to hold himself out, and which a prudent person, in good faith, under •the circumstances would reasonably believe him to be authorized to do.</p> <p>■ • Mutua l Companies—</p> <p>(3-) By-laws of a mutual insurance company limiting the agent’s powers or prescribing the manner or consent to “other insurance” may be waived, abrogated or abandoned.</p> <p>Condition subsequent—</p> <p>(4.) Refusal to comply with a clause as to notice of “other insurance” is a violation of a condition subsequent.</p> <p> Waiver and estoppel— </p> <p>Acts and conduct of the parties occurring subsequent to the delivery of a policy are applicable to the doctrine of waiver and estoppel, and may be raised by way of reply in an action at law.</p> <p>Reformation — Pleading—</p> <p>(6) Agreements, acts and conduct of the parties occurring prior to and contemporaneously with the delivery of the policy, and inconsistent with the terms thereof, are merged in the written contract and are available only in an equitable proceeding to reform the contract. Reformation may be set up in a reply, together with a cause of action for judgment, after the policy is reformed.</p>

<p>Where ministerial section number twenty-nine in the Ohio Company’s Purchase was held under a lease for ninety-nine years, renewable forever, but subject to revaluation every fifteen years, and against which taxes assessed upon the fee stood charged on the '’uplicate in the name of the widow and heirs at law of the lessee, in an action brought by the county .treasurer against said widow and heirs at law ±o recover judgment for the taxes so assessed and subject said lands to the payment thereof, Held:</p> <p>1. That said lands are not subject to taxation and said assessment was unauthorized.</p> <p>2. That section 2733, Revised Statutes, only imposes a tax on the lessee’s interest in the lands described therein, and it does not apply to a lease of such lands, although for a term of more than fourteen years, if by the stipulations of the lease the lands, as between the lessor and lessee, are subject to revaluation.</p> <p>3. That if section 2733 was applicable to ■such case, the lands being subject to revaluation every fifteen years, the lessee’s interest is not regarded as of substantial value and there ,is nothing to tax.</p>

<p>1. An ordinance of a municipal corporation forbidding the erection of signs, billboards and other structures for the purpose of displaying advertising matter of any kind is beyond the power conferred in subdivision 27. section 1692, Rev. Stat., and therefore void.</p> <p>2. Such ordinance forbidding the construction of the billboard at a greater height than two feet above the level of the adjoining street and of no greater height than ten feet, and no1 to be at a less distance than fifteen feet bad? of the building line of anv building or buildings adjoining thereto, is a deprivation of the use of property and is unconstitutional and void.</p> <p>3. The council has a right by virtue of the legislative grant to pass an ordinance which shall compel the use of such incombustible material in the erection of signs and billboards within the fire limits as would prevent the spreading of fire from one building to another, and also has the power to compel the ercetion of the same in a safe and secure manner, not dangerous to others.</p>

<p>(1) A presumption of fact arises when an attorney is employed that he is to receive for his services such an amount as under all circumstances they are reasonably worth.</p> <p>, (2.) To rebut such presumption, if the client asserts that some special agreement was made either by way of a fixed sum or by way ! of a contingent fee in case of success, the ; burden is on the client to sustain such contention.</p> <p>! (3) While there may be fixed standards by which: to determine the value of legal services, such standards are made up of numerous elements, which vary in number, importance and proportion in each case.</p>

In settling up the estate of B. Cavagna sixteen years ago the debts of B. Cavagna & Son were by a provision of the will paid from the assets of the estate. Among the claims presented and allowed by Peter Cavagna, executor, was one of $2,000 held by Lena Gourjon.

<p>The word “may” as used in the Boxwell law before the amendment of that law by the legislature of 1900, has not the force of “shall,” and therefore that law was then not mandatory.</p>

<p>A sidewalk assessment will not be sustained on appeal, _when the record shows but a single resolution, standing alone, authorizing the improvement of sidewalks in all parts of the city to be constructed of all kinds of material, as such an indiscriminate joinder of sidewalk improvements cannot be upheld.</p>

<p>(1.) The parties to a lease.may terminate the same at any time by mutual agreement without a distinct consideration for so doing.</p> <p>(2.) A tenancy from year to year may be changed by mutual agreement between the parties to a tenancy from month to month, without any consideration passing between the parties.</p>

[The charge to the jury in this case by Judge Avery, who for almost twenty years was a judge of the court of common pleas in Hamilton county and who was recognized as one of the ablest members of the judiciary'of Ohio of that time, is found in an editorial article by Hon. F. M. Coppoclc, of the Cincinnati Bar, at the time city solicitor of the city of Cincinnati, published in the 10th American Law Record.

<p>Appointment of village deputy marshals, policemen and night watchmen—</p> <p>(1.) The statutes of Ohio vest the appointment of deputy marshals of villages in the village council, and the appointment of policemen and night watchmen in the mayor; the mayor cannot appoint deputy marshals nor can the council appoint night watchmen.</p> <p>Same — Ordinance not necessary—</p> <p>(2.) An ordinance is not necessary to ap7 point such deputy marshals.</p> <p>Same — Council cannot appoint night watchmen — ■</p> <p>.(3.) A village council cannot by ordinance prescribing certain duties to be performed by certain, persons therein named, designating them as deputy marshals, such duties being such as should be performed by night watchmen, appoint such persons to perform such duties under a title of deputy marshals, and such appointment being beyond the authority of the council is invalid.</p> <p>Same — Certificate of sufficient funds—</p> <p>(4.) Where a fund from which the salaries of certain village appointees are to be paid is partly raised from taxation and partly from the Dow tax, and is used as an entire fund, there can be no separation as to what part of the fund shall be used to pay the salaries, and it is necessary before such appointments are made that a proper certificate be made that there is sufficient funds in the treasury to meet the expenses of such appointees.</p>

Tlhe pleadings show that plaintiff: First. Shed for $70.00 earned by him as wages. Second. It is conceded the work was done and was worth that sum. Third. But payment thereof is sought to be avoided, by setting up an entire contract for a year, and quitting of service of plaintiff (below) before the expiration thereof, without cause, and therefore nothing due, Fourth.

<p>(1). A five-year provision as to incontestability, pontained in a policy of life insurance issued in lieu of a policy of the same number issued twelve years earlier, but without such a provision, does not read into the original policy a waiver of its exception of liability for death by suicide.</p> <p>(2.) Whether the second policy should be considered as of the same date as the first, the court does not find it necessary to decide.</p>

The action in the court below was brought by the defendant in error to recover against the defendant, damages, which he sustained on July 8, 1892, in a collision between a freight train and a portion of another mixed freight and passenger train, which broke off from the rear of the latter train. The accident occurred near Dorset station, on the line of railroad owned and operated by the defendant, which extends from the city of Youngstown to Ashtabula.

<p>1. Under sec. 3718a, R. S., (Pure Food law) prosecutions may be instituted before" mayors and police judges of municipalities as well as before justices of the peace, but the jurisdiction of mayors and police judges is under such section limited to the "prosecution of cases arising within the municipal boundaries, while the jurisdiction of justices of the peace in such cases is co-extensive with the county.</p> <p>2. The legislature may withhold trial by jury for new offenses created by statute and unknown to the common law, or if known to the common law, where no such right existed.</p> <p>3. Where prosecutions under sec. 3718a, R. S., are before a justice of the peace, the defendant is entitled to a trial by jury, unless he pleads guilty or waives a jury trial. But in such prosecutions before a mayor or police judge, the defendant is not entitled to trial by jury where the penalty provided is by fine only.</p> <p>4. An affidavit which charges in substance that on or about the 20th dav of November, 1900, at the county of Wood and state of Ohio, P, late of said county, unlawfully did sell to B a quantity, to-wit: about one pound of oleomargarine, the same being then and there a substance not pure butter, of not less than 80 per cent, of butter fats, which said substance was then and there made as a substitute for, in imitation of, and to be used as butter; that then and there said oleomargarine sold in the manner and form aforesaid, contained coloring matter to-wit: annatto, contrary to the form of the' statute,” etc., charges as offense under the act of 1.894 (87 O .L„ 248) only and not also an offense under the acts of 1890 (87 O. L., 181, and 87 O. L., 51).</p> <p>5. In a prosecution under the pure food laws it is not incumbent on the state to aver or prove in the first instance that the article was sold to be used as food, but this question is a matter of defense.</p>

Timothy Connors commenced an action in the court of common pleas of Columbiana county against The Godling & Sons Company, to recover damages for a personal injury. The Golding & Sons Company owned and operated a mill for grinding flint, for use in the manufacture of pottery, at East Liverpool, and Connors was an employe in the mill as “cylinder man.” The flint was ground placing a charge in a horizontal cylinder, together with a quantity of hard pebbles.

<p>1. Corporations, having in their keeping the primary evidence of the title to their stock and having chargej of the transfer thereof, are held to the exercise of diligence in its preservation for those who own it; and where stock stands ' in the name of a trustee, the corporation, knowing this, is bound to inquire as to the authority of the trustee to make transfer of the stock', before it permits such transfer to be made upon its books.</p> <p>2. .Where several street railway companies are consolidated into one company, the new company sustains a trust relation to the holders of the stock in the constituent companies, with reference to the new stock and its distribution to them.</p> <p>3. Where such consolidated company issues one certificate for all the new stock allotted, to the shareholders of one of the constituent companies, to an individual as trustee, to sell sufficient thereof to liquidate the floating indebtedness of the constituent company, and to distribute the residue to those entitled to it, the new company is bound to see to the faithful execution of the trust it so creates, and is liable for any default of such trustee.</p> <p>4. In an action against such consolidated company, by one entitled to a portion of the new stock, the statute of limitations does not begin to run until there Is demand of the stock, and refusal to 'eliver.</p>

The petition contained two counts. The plaintiff dismissed the second before trial. The first count alleged that the plaintiff was engaged in carrying on the business of a retail clothing merchant, that defendant published “ of and concerning the plaintiff, and of and concerning him as a trader and retail clothier, and of and concerning his character as a merchant,” an article, which it copies incorrectly.

This suit was originally brought by Lida M. Dussel against the Akron Street Railroad Company to recover for a personal injury alleged to have been received by her at the hands of defendant in the following manner to-wit: The claim is that on or about October 2, 1889, she was a passenger on one of the cars of the defendant company, and that she undertook to leave said car at the corner of Market and Main streets in the city of Akron, and.that, before she had left the car, the…

On December 19, 1883, Minnie E. Wheelock,. together with her husband, executed a warranty deed of certain premises on Perry street,, in the city of Cleveland, Ohio, to the Commercial National Bank, of Cleveland, Ohio, and subsequently on December 28, 1883, the-said deed was delivered to the bank. The bank took possession of the premises on that date, and has ever since been the owner of, and in-possession of, the said premises.

The plaintiff in error is a mutual protection or insurance association organized under secs. 3686 to 3690, R. S. September 30, 1885, the defendant in error made application in writing to said association for insurance on his dwelling house and other property in Madison, Lake county. The usual form of policy was issued to him, October 4, 1885. August 4, 1887. Crandall received notice of an asessment made by the directors of $3.50 on a $1,000, amounting on his policy to $4.55.

<p>Question of proximate cause on motion^*Jhe question of proximate cause is generally a disputed- question and one to be determined by the jury under the instruction of th'e court) and it is only in those cases in which there is' no disputé, and the' facts are plain ahd'clear that the court, as a matter of law, #511 determine what is or is not proximate cause. Therefore where the petition in an action for personal injuries alleges that .th'e injury was caused by reason of the incompétency and carelessness in defendant’s engineer causing the clogging and explosion of boilers, that plaintiff, in attempting to extinguish the fire attempted to cross an open space, where there were loose boards, by reason of which he fell and was injured, the court declined to hold that the loose boards alone were the proximate cause of the injury, but directed that the case should go to .the jury on the pleadings, and that the question of proximate cause was to be determined from the-evidence.</p>

<p>Charge to the Jury.</p>

<p>Charge to the Jury.</p>

<p>1. Fish while roaming at will in public waters are animals ferae naturae . and are the property of the community at large; but they may become the subject of a qualified property in an individual if reclaimed, confined or dead; and if fit for food when such qualified property is acquired they become the subject of larceny.</p> <p>2. Actual bodily seizure is not necessary in order to acquire such property in food fish. It may be acquired by confinement in nets or other contrivances where they may be taken at the pleasure of the owner; but such confinement must be actual and such as to deprive the fish of their natural liberty and render escape impossible.</p> <p>3. Food fish in the “trap” tr “pot” of a pound net set in public waters are not the subject of larceny so long as the aperture through which they entered is left open so that they may escape therefrom at will.</p>

This is a suit for damages for alleged libel, and the present hearing was on a motion to commit the writer of an article for contempt for refusing to divulge the name of his informant.

This action was brought by James W. Sibley and wife against Simon Ross, Jr., and others for three months’ rent at the rate of $250 per month, of premises located upon Sycamore street, in the city of Cincinnati, occupied under a lease between the parties, by which Ross and partners agreed to pay such, rental to Sibley and wife during their tenancy.

Kuehnken as administrator of the estate of his father, the late John H. Kuehnken. The late John H. Kuehnken left an estate of $20,000 in government bonds and other securities in addition to real estate holdings. He left no debts.

<p>The act authorizing the School Board of Cleveland to buy the text books to be used in the schools constitutional—</p> <p>1. In considering questions arising under the school legislation of the state it is the duty of a court to give such construction upon legislative enactments and the several provisions relating to the schools as will give harmony to our educational system and secure, so far as practicable, equal benefits and the reasonable facilities for their enjoyment to every locality.</p> <p>2. While the subject of schools is general and of general interest, yet the subj ect of how, or by what agencies, the general provision® of law's applicable shall be carried out is pure-a matter of local concern,.</p> <p>3. The act of May 16, 1894, providing for the reorganization of boards of education in city districts of the second grade of the first class and amendments thereto are not unconstitutional because violative of section 26 of article 2 of the constitution, as a law of a general nature having only local application, because under that act the respective school board does not exercise different functions from other school boards, but the act creates only different -agencies to exercise the same functions.</p> <p>4. The purchase of text-books and the distribution, or, the “loaning of them to the pupils, on such terms and conditions as the board may prescribe” is not a discrimination in favor of some and against others.</p> <p>5. Public schools are an institution of the state, for the purpose of protecting and preserving the state, and an act providing for the purchase of school books for the purpose of loaning the same to the pupils of the public schools would not be a discrimination against those who prefer to attend some other school than that provided for by the state,a diversion of the public funds for -the benefit of a part the taxpayers, nor would it deny to any the equal protection of the law, nor would it discriminate against persons who have no children.</p> <p>6. There is no legal obligation resting on parents or guardians to buy school books.</p> <p>7. There is no difference in principle between the furnishing b- the school board of a blackboard or a chart and the furnishing of I ! books, these books to remain the property of | the district and to be given out to the pupils on such terms and conditions as the board of education, may prescribe.</p>

<p>(1.) Where a prosecution is instituted by a private individual whose duty it is to disclose crimes to the authorities, he will not be permitted to use the criminal process in any way to enforce the collection of a debt; and so long as the state intends to prosecute the criminal action, i'f the offense charged is a felony it is the duty of the individual to refrain from any steps in a civil action if one is commenced for the same wrong, until the crimianl action is concluded.</p> <p>(2.) So long as one extradited from another state to this state as a fugitive from justice, is under the process of the Ohio court, awaiting trial for a criminal charge, the court ought to suspend the remedy provided bv the statute for the arrest before judgment, in a civil action, especially when that affidavit was filed and the order of arrest procured in the face of a pledge made by the plaintiff in such civil action to the executive department of the state, that he. would not do so; although there is no statute forbidding him from doing this, or there is a statute authorizing him to do it.</p> <p>(3.) Where in such case the defendant had answered to the petition in such civil action, the filing of such answer will not be held a waiver of the privilege of immunity from arrest under such civil action or any other privilege with which the law has clothed him.</p> <p>(4.) In such case a proceeding for the arrest before judgment of a defendant under the jurisdiction of the court as a fugitive from justice, extradited from a foreign jurisdiction, ■is unlawful and wrongful and in violation of the duty that plaintiff owed the state.</p>

<p>Rule as to grant of exclusive privileges—</p> <p>(1.) The streets of a city may be used for purposes authorized by statute in furtherance •of the convenience and welfare of inhabitants and not substantially interfering with the public easement of right of travel, but when it is sought to couple with such partial appropriation a stipulation that no further use of unoccupied portions of the street shall thereafter be permitted or made for similar purposes, which is not an exercise of, but an attempt to prohibit appropriation, and when the effect is to create a monopoly, the power of a municipal corporation then to divest itself of authority conferred as a public agent must be clearly shown.</p> <p>Rule applied to lighting franchise—</p> <p>(2.) An ordinance granting a franchise to an electric light company, containing a provision, which was part of the bid for the contract, that the contract shall not be binding upon the grantees unless they are granted the exclusive use of the streets for lighting purposes, is within^ the rule above stated and that ordinance'^ invalid.</p> <p> An ordinance containing more than one sub ject is invalid— </p> <p>An ordinance passed by the council of a municipal corporation which grants a franchise to use the streets and alleys of the municipality for the purpose of supplying electric light and power to citizens, and also contains a contract for the lighting of the streets and alleys at a stipulated price, is in conflict with sec. 1694, R. S., in that it contains more than one subject and is for that reason void.</p> <p>Care, supervision and control of all public streets—</p> <p>(4.) Every municipal corporation is clothed with power to protect itself, and the council has the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks and public grounds, and none of these can be used for extraordinary purposes without the consent of the council.</p> <p>Term "Franchise” deñned—</p> <p>(5.) “Franchise,” in a general sense, is a liberty or privilege; a particular privilege conferred upon individuals by grant from the government. They are usually held by corporations created for the purpose of enjpying them.</p>

<p>Petition for accounting — Refusal to allow counsel fees—</p> <p>Although the filing of a petition for an accounting and to wind up the affairs of a partnership, or syndicate, all interests being antagonistic, inures to the general benefit, and, if there was a fund in court, compensation for filing the same might be allowed, the court has no authority to require judgments against the partners to include a pro rata share of plaintiff’s counsel fees of any one party, acting on his own behalf, merely on the ground that he initiated the proceedings.</p>

<p>Covenants against sale of liquor binding upon heirs and assigns—</p> <p>A covenant in a deed of city property, on the part of “grantee for himself and his heirs and assigns,” that liquor shall not be sold upon the premises and “that all the foregoing covenants, stipulations and agreements, shall run with the land,” is binding upon the party receiving the •deed and "upon his heirs and assigns, and may be enforced by injunction, in the absence of fraud and where it appears that covenants in deeds of other property in the neighborhood have not been violated or rights under such covenants forfeited.</p>

<p>Purchase of land — Resulting trust—</p> <p>(1.) When land is purchased with money in possession of one person, but the deed is taken in the name of another, the presumption arises that the former is the owner of the money and the burden is on the latter, in an action to have such land conveyed to the beneficial owner, to rebut this presumption and unless such burden can be sustained a resulting trust in favor of plaintiff must follow.</p> <p>Acquiescing in mortgage — Estoppel—</p> <p>(2.) Where the beneficial owner oí property, the title to which is in the name of another, acquiesces in the execution of a mortgage thereon by the person holding the title, he is estopped by such acquiescence from any claim against the mortgagee notwithstanding that he advised the mortgagee that he was the owner of the property before the mortgage was taken.</p>

<p>Covenant to reach after acqtiired title—</p> <p>(1.) A covenant of warranty to be applicable to an after-acquired title must be a covenant annexed to or which runs with -the land.</p> <p>Covenant which does not extend to after acquired title—</p> <p>(2.) A warranty is only coextensive with the grant. Therefore, a deed or mortgage conveying “all our and each of our title and interest in the following described real estate” with covenant or warranty in the ordinary form, without recital or other description of any particular interest or interests owned by grantors, or intended to be conveyed, binds-only the vested interests of gran-tors at the time of conveyance and does not extend to an after-acquired title.</p> <p>Not within rule as to mortgage without title—</p> <p>(3.) Such a mortgage, executed by husband and wife and children, is not with' the rule that one who mortgages real estate to which he has no title, and who afterwards acquires title; is, with -those claiming under him estopped to claim against the mortgage.</p>

<p>Officers — Relation ex lege — Pees—</p> <p>(1.) The jural relation between a ministerial officer and one who, by virtue of circumstances, is entitled to his official services, is a relation that arises ex lege, and not ex contractu, and it therefore excludes the right of the officer to demand prepayment of fees, unless such right is conferred by statute.</p> <p>Prepayment of fees — No statutory provision—</p> <p>(2.) The matter of the taxation of costs in civil actions, of requiring payment of, or security for costs, is under legislative control; and while the legislature has power to provide for prepayment of fees for issuing summons, it has not done so, and therefore such prepayment cannot rightfully^ be demanded.</p> <p>Rule as to fees of clerk of courts—</p> <p>(3.) In counties where the clerk of courts is compensated by fees, payable by the person for whom he renders official services, the rendition of services makes the recipient his debt- or; but this is not so in Cuyahoga county, where, under the local salary law, the earnings of all the county officers are turned into the public treasury, to the credit of a fee fund, from which the several officers are paid a fixed annual salary.</p>

<p>Trustee and beneficiary joined as parties—</p> <p>(1.) A trustee of an express trust, or a person in whose name a contract has been made for the benefit of another, may be joined with his beneficiaries as a party plaintiff in a suit to protect the rights under such contraot, although by sec. 4995, R. S., he may sue without joining his beneficiaries.</p> <p>Corporations■ — Stockholder—Parties—Trusts</p> <p>(2.) The registered owner of a share of stock in a corporation, which he holds as trustee for the real owner, is a pr per party plaintiff .under sec. 5005, R. S., in an equitable action against such corporation, the officers and directors thereof, and another corporation, for the appointment of a receiver for the first corporation, to wind up its affairs and to restrain a sale of the stock of the first corporation to the officers of the second corporation, although the real owners of such share of stock are also joined as plaintiffs.</p> <p>Actions — Pleadings—</p> <p>(3.) A petition in an action by stockholders against a corporation to restrain it from certain acts and for the appointment of a receiver to wind up its affairs, alleging that there was no officer, director or stockholder to whom plaintiffs could go to secure redress is sufficient, without showing that a request to have their rights adjusted was first made to the corporation.</p> <p>Injunction — Motion to dissolve — Burden of proof—</p> <p>(4.) On a motion to dissolve a preliminary injunction on the ground that the allegations of the petition are untrue, the burden is on defendants to prove that fact, but such full and positive proof is not requisite as would be necessary upon a final hearing of the case.</p> <p>Equity — Corporations—Monopolies—Laws of trade—</p> <p>(5.) Equity will not entertain a bill by stockholders in a corporation asking for the appointment of a receiver to wind up the business of such corporation, or grant relief by injunction or otherwise, on the ground that those controlling the corporation were mismanaging it, or destroying its profits where it appears that plaintiffs, controlling the coffee business, prepared to engage also in the sugar refining business, whereupon defendants, having a monopoly of the latter business, purchased a controlling interest in the corporation in question, which was a competitor of plaintiffs in the coffee business, and proceeded to reduce the price of coffee, with the intention of wrecking plaintiff’s coffee business unless they gave up the sugar refining business, as equity will not lend its aid to one monopoly as against another, pr interfere with the laws of trade, permitting one party to drive another party out of business by underselling him.</p>

<p>Defectively executed mortgage invalid though recorded—</p> <p>(1.) A mortgage defectively executed is not entitled to record, and, if recorded, the unauthorized record will not give it any priority over later liens or purchases, even though' the purchaser or mortgagee have actual notice of the former mortgage.</p> <p>Omission chargeable to mortgagee, when—</p> <p>(2.) Where the omission in a mortgage, executed when the law required the wife to be examined separate and apart from 'her husband, to have the certificate of acknowledgment show that fact, was on the part of the notary, the omission is chargeable to the mortgagee, whose duty it was to see that the instrument was validly and perfectly executed.</p> <p>Reformation operates from its date—</p> <p>(3.) Where the evidence as to the separate examination of the -wife, not appearing in the certificate of acknowledgment, is sufficient to warrant reformation of the instrument, such reformation can only operate from the time of correction against intervening bona fide vendee and mortgagee.</p> <p>Claim superior to defective mortgage—</p> <p>(4/) Where the owner of the fee, by reason of failure to pay ground rent, is a pre-existing creditor of the owner of the lease, and in addition the owner of the fee assumes and pays delinquent taxes and assessments, there is a sufficient consideration for the surrender of the lease to make the title of the owner of the fee valid as against an existing defective mortgage upon the leasehold, of which the owner of the fee had no actual knowledge.</p>

<p>Section 6173, Rev. Stat. — Executor’s statement—</p> <p>1. A journal entry, under which a certificate of indebtedness is issued by the probate court for the purpose of filing the same in a partition -suit in the common pleas and obtaining money to pay debts, as authorized b sec. 6173, Rev. Stat., 74 O. L., 167, will he set aside where the statement of the executor does not show all the assets and indebte ness of his estate, and especially where it does not show that the personal property is insufficient to pay the debts thereof.</p> <p>When notice to heirs is required—</p> <p>2. A proceeding under secs. 6173 and 6x74, Rev. Stat., to procure a certificate of indebtedness to file in a suit in partition is one to sell lands to pay debts, and where the claims for the payment of which the sale oí the land is. required include one due the executor, the heirs should have notice and be allowed to defend against it if such claim is denied.</p>

<p>Error will not be considered upon the petition of one in whose favor the jury found all t'be substantive issues.</p>

<p>(1.) Three partners, having separate factories for the manufacture of different classes: of goods, having separate sets of employes, keeping their accounts, assets and creditors entirely distinct, but having their offices together, did business under two different firm names, ■and made an assignment for the benefit of creditors. A creditor holding separate notes in the name of both firms sued for an allowance of its entire claim against the assets of both concerns. Held: Such creditor can</p> <p>prove against the assets of each firm in the proportion in which it holds such paper and has given credit.</p> <p>(2.) The statutes so changed the common law, that in Ohio, at least for the purpose of distributing its assets among its creditors, a firm is a legal enity distinct from the members, composing it.</p> <p>(3.) For the purpose of substanial justice, equity will subject the funds of the partnerships to the liabilities of the respective firms' to which credit was given.</p>

<p>Rule as to special damages — ■</p> <p>(1.) Where the prospective profits to be derived from the performance of a contract are so problematic as to be within1 the rule of remoteness barring recovery, plaintiff may recover, as special damages, for the expenses incurred by him in preparing for the execution of the contract.</p> <p>Genei'al and special damages may be pleaded—</p> <p>(1.) An allegation of general damages for of contracf does not preclude an allegation of special damages, covering the expenses incurred by plaintiff in preparing for the execution of the contract.</p> <p>Itemizing general damages—</p> <p>- (3.) General damages need not be specifically itemized.</p> <p>Pleading special damages—</p> <p>(4.) Special damages must always be pleaded and proven.</p>

<p>On motion for hearing.</p>