Volume 8 — Ohio Nisi Prius Reports, New Series

<p>CONSTRUCTION OF WILL CONTAINING A TERMINABLE TRUST.</p> <p>Wills — Buies of Construction and Extent to Which They Should he Followed — Beading the Instrument in the Light of Extrinsic Circumstances — Presumption as to Intention — Application of Section 5910 — Devisable Estates — False Description of Bealty — Bestricted Titles — Life Estates — When an Unqualified Estate May he Cut Down — Beconciliation of' Conflicting Provisions — Postponed Payments — Legacy Charged Upon Land Tests, When — Suspended Interest Becomes a Contingency, When — Trustee to Manage Property and Clothe Cestui que Trust with Absolute Title at His Discretion.</p> <p>1. Relief can not be granted against an incorrect description of real estate in a will, unless there is something in the will itself which 'points to property actually owned by the testator, and affords a foundation for testimony identifying such property as the property which the testator was attempting to devise; otherwise there can be no correction of the false description, and as to the property to which it is sought to apply the false description it must be held that the decedent died intestate.</p> <p>2. A legacy of $3,000 and a remainder interest in land were left by testator “to my brother L for the use and benefit of my son P, with the direction that at any time my son P shall give evidence that he has become economical and industrious” which, in the opinion of L, justifies the placing of the absolute estate in P, the trustee shall “convey said property” to P; otherwise L shall manage the same and pay out the net profits thereof to P’s maintenance. The payment of the legacy is postponed to the determination of the same life estate which supports the 'remainder devised in trust. . The will has no residuary clause and no provision for the devolution of the estate given in trust, should the trust fail. The son P died testate before the life tenant and before the trustee had taken any step to terminate the trust. Held:</p> <p>The legacy vested in behalf of the son, and in his trustee as of the death of the testator, and the legal and equitable title thereto, and to the remainder in fee in the real estate, merged in the son’s estate at his death and passed absolutely to his devisee and legatee.</p> <p>3. The payment of a legacy is postponed until the death of a life tenant and is made a specific lien upon the remainder estate. The legatee died before the termination of the life tenant. Held:</p> <p>. It appearing that the postponement of payment was not personal to the legatee but was for the convenience of the remainderman upon whose remainder estate it was charged, the legacy vested at testator’s death and the lien of its payment did not lapse with the death of the legatee.</p>

<p>PROSECUTION BEFORE A MAYOR FOR INDECENT CONDUCT.</p> <p>Criminal Law — Prosecution for Indecent Conduct — Bill of Exceptions— Time of Signing by Mayor — Discretion of Mayor as to Trial of Case — Facts Constituting the Offense Should be Set Out in the Affidavit — Evidence—Admissions of Quilt by One of the Parties to the Offense.</p> <p>1. It is not too late after verdict and sentence, but before separation of the parties or discharge of the jury, for a mayor or justice of the peace to fix the time for settling, signing and filing a bill of exceptions.</p> <p>2. It is a matter of discretion with a mayor in a trial for violation of an ordinance where imprisonment is prescribed whether he bind the defendant over to the grand jury, or proceed to try him on the merits.</p> <p>3. In a prosecution under an ordinance making indecent conduct a punishable offense, the affidavit should state what act or acts committed by the defendant are claimed to constitute indecent conduct.</p> <p>4. Where two persons are charged with indecent conduct and one of them enters a plea of guilty, it is error to bring that fact to the attention of the jury, impanneled to try the other party under hiss plea of not guilty.</p>

Tbe plaintiff in this case recovered a verdict for a substantial amount .as damages for injuries sustained while in the defendant’s employ. The charge to the jury, which the Supreme Court has found to be free from error, was as follows:

<p>PROSECUTION FOR TORTURING AND UNNECESSARILY ABUSING A DOG.</p> <p>Dogs — Legislation with Respect to — Provisions Against Cruelty to Animals Applicable to — Prosecution for Tortwring — Averments of Affidavit — Burden of Proof — Sections 6951, 1/&12-1 and, 4818-8.</p> <p>The dog is an animal within the meaning of Section 6951, providing penalties in cases of cruelty to animals, and one torturing or unnecessarily abusing a dog is liable under this statute, notwithstanding the dog had not been brought within the realm of property by returning him for taxation and paying the tax on him when due; and the statutory provisions against dogs running at large do not relieve against prosecutions for torture and unnecessary abuse.</p>

<p>TITLE OF PURCHASER OF HORSE AGAINST LIEN OF STABLE KEEPER.</p> <p>Lien for Care of Animals — Title of Purchaser from Owner Without' Notice of Lien for Keep — Possession—Replevin—Section 3212.</p> <p>Where a stable keeper parts with possession of a horse upon which he has a lien for keep, the title of a purchaser of the horse for value and without notice is superior to the lien of the stable keeper. , ,</p>

<p>LIABILITY FOR KEEPING HIGHWAYS IN REPAIR.</p> <p>County Commissioners — Omission of Duty — Not a Foundation for Recovery of Private Damages — Negligence as to Condition of Roads and Bridges — Sureties for Commissioners not Liable — Errors of Judgment — Sections 844 and 845.</p> <p>A county commissioner, in the absence of bad faith or a corrupt motive, is not liable individually or upon his official bond, for the failure of the board of commissioners of which he is a member to keep the highways and bridges in proper repair.</p>

<p>PROSECUTION UNDER COUNTY LOCAL OPTION LAW.</p> <p>Criminal Law — ■'Violation of County Local Option Law — When Affidavit Charging Violation is Sufficient — “Furnishing” as Used in the Statute — Intoxicating Liquor is Furnished as a “Beverage,” When —Maximum Penalty Warranted, When — Error to Proceedings Before a Mayor.</p> <p>1. An affidavit charging violation of the county local option law is sufficient, when it avers that the defendant, at a .time and place named, . did then and there furnish intoxicating liquors as a beverage to a person named, and that the furnishing of said intoxicating liquor by defendant as aforesaid was then and there prohibited and unlawful.</p> <p>2. The word “furnishing,” as used in this act, should be given a broad meaning for the purpose of carrying out the will of the people as expressed at the ballot box; and when it appears that the defendant authorized one of the witnesses in the case to dispose of liquor which he had on hand hy sale, and the witness did so dispose of it to he used as a beverage, it is not error to refusé to discharge the defendant at the conclusion of the state’s evidence.</p> <p>3. When intoxicating liquor is furnished for any other than a legitimate legal purpose, it is furnished for use as a “beverage.”</p> <p>4. Where the defense is without merit and clearly indicates tliat it has been manufactured, the imposing of a maximum penalty does not afford ground for setting aside the judgment on the ground that the sentence is excessive.</p>

<p>PROOF REQUIRED TO SET ASIDE DEED.</p> <p>Deeds — Undue Influence in Procuring Execution of — Mental Capacity lohere the Grantors are Aged and Helpless — Behavior of Grantees to whom Property .was Conveyed in Consideration of Care and Support — Inadequacy of Consideration not Material, When. ■</p> <p>1. Tke clear and convincing proof, required by tbe 75th Ohio State, 291, of undue influence in procuring the execution of a deed, is not afforded in the case of aged and infirm persons, who conveyed their property in consideration of care and support, by the mere fact that the grantees, who were giving the grantors all needful attention and support in consideration for the conveyance, did not permit friends of the old people to see them alone.</p> <p>2. Lack of mental capacity to enter into a contract and make a deed is not shown, where the grantors evidently understood the transaction they were entering into, and explained their reasons for so doing, and designated as the trustee to hold the deed in escrow an old and trusted friend and agent, and in other respects behaved in a rational manner, and were without children or direct heirs.</p> <p>S, In such a case the fact that the value of the property conveyed was in excess of the value of the services rendered is not material, in the absence of any showing of fraud or unfair treatment.</p>

The amended petition filed in the common pleas' court in this case was as follows: Relator represents to the court that Hiram M. Rulison is the duly elected and legally qualified prosecuting attorney for Hamilton county, Ohio, and that he brings this action against John Kilgour, doing a banking business under the name of the Franklin Bank, by virtue of the power and - authority vested in him by Section 1277 of the Revised Statutes of Ohio.

<p>CONDITIONS WHICH MUNICIPALITY MAY IMPOSE ON STREET RAILWAY COMPANY.</p> <p>Municipal Corporations — Franchises—Conditions Which may he Imposed on a Street Railway Company — May he Required to Either Widen Bridge or Pay a Stipulated Amount into the City Treasury — Sections 1536-183, 1536-184, 1536-185 and 3437.</p> <p>1. In Ohio a municipal corporation in granting a street railroad com-, pany permission to construct a street railroad in the streets of the city, may at least prescribe such terms and conditions as are; jn furtherance of the duty which the municipal corporation owes to the public and are essential to the preservation of the streets for public use, provided such terms and conditions are not inconsistent with the restrictions placed upon, nor inconsistent with the rights granted to such street railroad company by the Legislature.</p> <p>2. When an extension of an existing franchise is granted, the city has authority to prescribe that the street railroad company shall widen a bridge occupied by it or in lieu thereof pay a stipulated amount to the city, at the city’s option, and such provision, when the ordinance containing the same has been duly accepted by the street railroad company, becomes an agreement binding the street railroad company to the performance of the same.</p>

<p>LIABILITY FOR DEATH FROM CONTACT WITH ELECTRIC WIRE.</p> <p>negligence — High Tension Wire Hanging Over Land of Another— Child Killed Toy Contact — Duty of Electrical Company Toward Children — Trespassers.</p> <p>A traction company maintained a high tension wire over the lands of another at a point where children were in the habit of congregating for play without objection from the land owner; said wire was down within a few feet from the ground for some time, and a nine year old boy playing in that vicinity came in contact with the wire and was instantly killed. Held:</p> <p>1. That said boy was not a trespasser or even a bare licensee as against said traction company, which had the right only to build its pole line and maintain its wire in the air on said poles; and,</p> <p>2. That if said company knew, or by the exercise of ordinary care should have known, that children were in the habit of congregating at that point for play, and should reasonably have anticipated that they might come in contact with said wire and be injured if the same was near the ground, then the company owed to such children a duty greater than merely not to willfully or wantonly imperil their safety. The company not being the owner of the land and the children not being -trespassers, the former owed the latter the duty of using ordinary care in maintaining its wire a proper distance from the ground, and is liable for a failure to discharge that duty.</p>

<p>EXECUTIVE DISCRETION IN ENFORCING COMPLIANCE WITH PENAL STATUTES.</p> <p>Injunction — Property Rights- — Executive Interference with, Where Protecting the PuWc from Violations of Penal Statutes — Feeding of Wet Distillery Waste to Milch Gozos — 99 O. L., 239.</p> <p>Where the only interference with property rights,^ which can result from a threatened prosecution by the health officer and milk inspectors, is the right to market milk from cows to which distillery waste sold by the plaintiffs has been fed, the interference does not go beyond a reasonable exercise of executive discretion, and injunction against such interference will not lie, but the plaintiffs will be left to set up in a criminal action the question of the constitutionality of the act under which the health department is proceeding, or the correctness of the construction which is being .placed upon the act by that department.</p>

<p>RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED.</p> <p>Bankruptcy — Property and Good ’Will Recovered by Trustee — Where Conveyed to Another Corporation Composed of Practically the Same Stockholders.</p> <p>An action will lie by a trustee in bankruptcy for recovery of tangible property and good will of the bankrupt corporation conveyed to another company made up of practically the same stockholders.</p>

<p>FAILURE TO MAKE TENDER.</p> <p>Pleading — Action to Set Aside Agreement for Sale and Purchase of Property — Tender—Amendment—Section 5119.</p> <p>A petition in an action to rescind an alleged fraudulent agreement must allege tender of the consideration received as a condition precedent; and failure to aver that tender has been made can not be cured by a supplemental petition alleging subsequent accrual.</p>

<p>DEFAULT IN OPERATION OF A FACTORY LOCATED IN CONSIDERATION OF A BONUS.</p> <p>Breach of Contract — Action for Recovery of Bonus Paid for Establishment of a Factory — Employes Persuaded by Citizens to Leave Their Employment — Because of Discredit Attaching to Making Beer Bottles — Factory as a Consequence Operated at a Loss— Causes of Action — Joindei—Parties—Representations that Land is Safe from Overflow — 'Waiver of Time of Payment and of Breach of Payment in Full by Acceptance of Part Payment — Pleading— Making More Definite and Certain — Multiplying Issues — Sections 5005, 5008 and 4995.</p> <p>1. Several and independent causes of action growing out of a single breach of a contract may be joined, where the proof of the breach is the same as to each and every cause of action joined.</p> <p>2. The right to bring suit in the name of one of a class for the benefit of all who have a common or general interest, and are so numerous that it is impracticable to bring them all before the court, is given by statute, and the allegation that plaintiffs brought the action without authority from the others and without their knowledge or consent tenders no issue and is irrelevant.</p> <p>3. The representation that land was safe from the overflow of a stream is a representation of fact as to the character of the land; but the allegation that at a subsequent time to that when the representation was made the land overflowed from high water of the stream, states no fact alleging such representation to have been false when made.</p> <p>4. The parties entered into a contract by which the defendants agreed, in consideration of $20,000 bonus, to build a glass factory in Wooster, Ohio, and keep it running ten months a year for ten years, employing not less than 200 operatives, and in case of,.default, to return the bonus. Plaintiffs knew defendants intended to employ boys because of the cheapness of such labor, and that they were induced to enter into the contract on that account. Defendants defaulted on the contract, and allege in defense of suit for a return of the bonus that plaintiffs joined with others in a crusade against boys working in such a business because of its alliance with the liquor traffic, and thereby prevented them from hiring boys to work in the business, and made it impossible to carry on the business with profit, and thereby caused the default for which and by reason of which they sued for the return of the money so advanced. Held: That the answer alleging such conduct sets forth no defense.-</p> <p>5. The receipt in whole or part of payments at a time subsequent to that agreed upon is a waiver of time of payment and of the breach of the contract by reason thereof.</p>

<p>CORRECTION OF JOURNAL AFTER TERM.</p> <p>Records — Authority of the Court ■ to Correct — Examination of Insane Patient by the Probate Court — Finding of the Court Entered on Journal — Motion to Strike out Alleged Interpolation — Presumption that it was Made by Authority — Nature of the Offense, if Unauthorized Interpolation was 'Made — Degree of Proof Required to Establish Criminal Intent.</p> <p>1. A court is without power to correct its journal after term, if the judg-. ment complained of reads as the court intended it should read at the time it was made, notwithstanding in rendering the judgment a mistake of law, or fact, or both, was made. i</p> <p>2. Where the claim is made that the judgment was in¡ correct form as originally entered upon the journal, but that some unauthorized pferson at a subsequent date interpolated certain matter for the purpose' of affecting substantial rights, and the evidence tends to ' show that if any alteration was made it was done by one of the clerks of the court, a presumption arises that it was done under direction of the court; and as between the two theories, on the one hand that it was done by order of court, and on the other that it was done without authority and with malicious intent, the court must adopt the one compatible with innocence on the part of the one who made the change, unless reliable evidence of sufficient force to remove all rational uncertainty compels adoption of the theory involving moral turpitude.</p>

<p>INTERFERENCE WITH TELEPHONE LINE BY MOVING BUILDING.</p> <p>Use of Streets for Moving Building — Interference with Telephone'Wires and Poles — Vested Rights of Telephone Company Arising from Prior Occupancy — Expenses of Changing Wires and Poles or Modifying Shape of Building — Injunction—Estoppel.</p> <p>1. Neither the moving of a building nor the operation of a telephone line along a street is an original or primary use of the street, but both are permissible under proper restrictions and with due regard to the rights of others.</p> <p>2. The vested rights of a telephone company, arising from prior occupancy under a franchise require that 'where poles, wires or cross-arms must be removed, or the shape of a building modified, in order that it may be moyed along a street upon which a telephone line is located, the expense of such changes must be borne by the house mover.</p>

<p>REGULATION OF SPEED OF RAILWAY TRAINS WITHIN MUNICIPAL LIMITS.</p> <p>Speed Ordinanoe — Application of, to Steam Railways — Rendered Invalid by Enlarging Statutory Provisions — Providing a Different Penalty — Enforcement of, Toy Criminal Proceedings' — -More than One Subject in Title — Municipal Corporations — Sections 1536-100, 1536-182, 15S6-620 and 3336.</p> <p>1. An ordinance which attempts to regulate the maximum speed at which railway trains may be. run through the corporate limits is rendered invalid by a provision that its requirements shall be enforced by criminal proceedings.</p> <p>2. Moreover, an 'ordinance “to regulate the speed of railway locomotives and cars within the corporate limits,” is in violation of the statutory provision that no ordinance shall contain more than one subject unless it is clearly expressed in the title, where to the requirement as to maximum speed there is added the further requirement that the bell-on the locomotive shall be rung continuously while the train “may be running' through said corporate limits.”</p> <p>3. And further, such a provision renders the ordinance invalid for the additional reason that it enlarges upon the provisions of the statute requiring that the bell shall be rung continuously while the train is passing through the corporate limits, regardless of the fact that it may not be “approaching a turnpike, highway,.town road or crossing.”</p>

<p>COLLEGE PROPERTIES WHICH ARE NOT EXEMPT FROM TAXATION.</p> <p>Educational Institutions — Taxation of Property Belonging to — But not Used Exclusively for Educational Purposes — Burden of Proof— Property Under Lease for ■an Affiliated School — Section 8782.</p> <p>1. The institution of learning located near Mt. Vernon, Ohio, and known as Kenyon College, is a “public college” and an “institution of purely^public charity,” within the meaning of Section 2732.</p> <p>2. The connection between a college and buildings .and lands belonging thereto, ^required by this statute in order to exempt such property . from taxation, implies the exclusive use of such property for educational purposes.</p> <p>3. The burden of proving that property belonging to an institution of learning is exempt from taxation is on the plaintiff.</p> <p>4. Residence properties occupied by college professors who accept a lower salary in consideration of being permitted to occupy such properties free of rent; unproductive woodland and vacant land in nowise’connected with the college, land rented for crops or pasture or held for speculative purposes, land used for a pumping station and a stand-pipe for a water system from which revenue is derived, or a building used for storage, are all subject to taxation.</p> <p>5. But property leased to parties under an agreement requiring that they conduct therein a grammar school, which is treated as a preparatory department of the college, is not taxable while so used, but becomes taxable upon the burning of the buildings and the abandonment of the site for grammar school purposes.</p>

<p>PROCEEDINGS IN ATTACHMENT BEFORE A JUSTICE OF THE PEACE.</p> <p>Attachment — Jurisdiction of Justice of the Peace — Where the Defendant is a Resident of Another Township — Money had and Received not “Necessaries" — Inconsistent Allegations in Affidavit — Injunction Restraining Plaintiff and Constable from Levying Execution — Sections 584 and 6486 to 6514.</p> <p>1. Where a summons accompanies an order of attachment, tout no property is seized under the attachment, a justice of the peace has jurisdiction to render personal judgment, notwithstanding the defendant is a resident of another township. (Late decisions are followed, but the contrary holdings of an earlier date are preferred.)</p> <p>2. Money had and received or money loaned does not fall within the class of “necessaries” and does not constitute a legal basis for attachment.</p> <p>3. The averment in an affidavit for attachment that the defendant has property which' he conceals is inconsistent with an averment that the action is for “necessaries,” and is not sufficient to sustain a judgment when it develops that the claim js not one for necessaries.</p> <p>4. A judgment recovered in such a case is not voidable but void, and injunction will lie against the plaintiff and constable restraining the levying of a writ of execution.</p>

<p>APPEAL FROM ORDER REMOVING EXECUTOR.</p> <p>Constitutional Law — Exclusive Jurisdiction and Appellate Jurisdiction not Inconsistent — Appeal from Order Removing Executor — Who May Appeal — Perfecting of the Appeal — Sections 524 and 6407.</p> <p>1. While exclusive jurisdiction cuts off concurrent jurisdiction, it is not inconsistent with appellate jurisdiction over the same- subject-matter by another court; and it follows, therefore, that the right, conferred by Section 6407, of appeal -to the common pleas from an order of the probate court removing an executor, is not in conflict’with the provision of Section 524, giving to the probate court exclusive jurisdiction to grant and revoke letters testamentary.</p> <p>2. When an order is made by the probate court removing an .executor, it is directed against him and he is affected by it, and he has the right of appeal' therefrom, notwithstanding he is not an heir, devisee or other interested person under the will.</p>

<p>DISBARMENT OF AN ATTORNEY.</p> <p>Attorney and Client — Retention of a Fund Belonging to Client — Proceedings to Disbar — Claim that Client Loaned the Money to■ the Attorney — Presumption Arising from Frequent Demands that he Pay it Over — What a Certificate of Admission to the Bar Imports.</p> <p>1. Admission to the bar amounts in Ohio to a voucher by the Supreme Court that the'holder of the certificate is a man of good moral character and will deal honestly and faithfully with his clients, and the public have a right to rely thereon.</p> <p>2. The fact that a client called many times at the office of her attorney for money which had been paid into his hands for her is inconsistent with a claim by the attorney that after he collected the money she loaned it to him and the loan was not yet due; and , his retention of the money for more than four months in the face of her repeated demands upon him for it constitutes misconduct in office, justifying a judgment that he be suspended from the practice for one year and that he pay the costs of the prosecution..</p>

<p>PLEAS OF NEGLIGENCE AND OF CONTRIBUTORY NEGLIGENCE.</p> <p>Pleading — Averments Making Negligence Available as a Defense — Negligence which is Exclusive and Negligence which is Contributory— Prejudicial Averments — General Denial — Averments Leading to Confusion in Admission of Evidence and Charge of the Court-Special Pleas — Confession and Avoidance.</p> <p>1. An averment in ail answer to an action for personal injury that the same was caused by plaintiff’s own carelessness and negligence, is not tantamount to, but is clearly distinguishable from, a plea of contributory negligence.</p> <p>2. An averment in an answer that the injury was caused by the plaintiff’s own carelessness and negligence coupled with, and in addition to, a general denial therein, is immaterial and may prejudice either party, and should therefore be stricken out upon motion.</p>

<p>PLACE FOR HOLDING EXECUTORS’ SALES AT PUBLIC VENDUE.</p> <p>Judicial Sales — Provisions of Section 6161 Which are Directory Only— Irregularities Which may he Cured by Confirmation — Order for Executor's Sale Silent as to Place — Sale Made at Auction on the Premises — Purchaser Tahes a Good Title.</p> <p>1. The provision of Section 6161, relating to sales.by executors and administrators, that "the sale be m.ade at public vendue, at the door of the court house in .the county in which the order of sale shall have been made, or at such other place as the court may direct,” is directory only, and not mandatory; and where the order of sale is silent as to the place where the sale shall be made, and the executor sells the property at auction on the premises, the purchaser takes a good title.</p> <p>2. It is not within the discretion of the court to set aside the sale, on the ground that it was made upon the premises without any order of court so directing, where it appears that the property was properly advertised, and there was competitive bidding which resulted in a sale for considerably more than the appraised value, and the parties who are interested in the proceeds are satisfied with the sale.</p>

<p>VALUES OF LEASEHOLD AND REVERSIONARY INTERESTS IN PROPERTY APPROPRIATED BY A MUNICIPALITY.</p> <p>Municipal Corporations — Appropriation for Street Purposes — Findings as to Y-alu.es of Leaseholds and Reversionary Interests — When to he Made — Weight of Evidence as to Values — Reasonable Differences of Opinion as to Values.</p> <p>In an action by a municipality for appropriation of property for street purposes, lessees can not demand a determination of the respective values of their leasehold interests and the reversionary interests, until the city has elected to take the property at the price fixed by the jury and the money in payment therefor has been deposited subject to order of court.</p>

<p>SLANDER OF TITLE.</p> <p>Foreclosure — In an Action for, Slander of Title not a Legal Counterclaim — Remedy of Owner — Action Against Defendants Jointly not Maintainable, Unless — Torts—Set-off—Section 5069.</p> <p>1. An action will lie for falsely and maliciously making an or'al or written statement regarding the plaintiff’s title to specific property or his property rights, if special damage results therefrom; hut where the result of the slander of the title is the breaking by a proposed purchaser of his contract of purchase, the weight of authority makes the bringing of an action against the defaulting purchaser for breach of contract or specific performance the proper remedy.</p> <p>2. The same rule which prevents the bringing of an action against two or more persons jointly for slander, applies to cases of slander of title where no conspiracy or co-operation is charged.</p> <p>3. In an action for foreclosure, an allegation by the defendant that the title to the property has been slandered by the plaintiff, can not be made the basis of a counter-claim, inasmuch as the tort alleged does not grow out of the contract upon which suit has been , brought.</p>

<p>PROSECUTION FOR FAILURE TO PROVIDE FOR CHILD.</p> <p>Parent ánd OMld — Prosecution for Noth'Support — Jurisdiction of Jus• tice of the Peace — ■Lacle of, May be Shown by Evidence Aliunde the Record — -Constitutional Law — Tenue can not be Arbitrarily Fixed Outside the County in which the Offense was Committed — -99 O. L., SSS.</p> <p>1. Where a justice of th§ peace has ccininittsd to jail a parent charged with -non-support of his child 'to await action of grand jury, on habeas corpus by such parent evidence de hors the record may be heard to show want of jurisdiction in- said justice to make such order.</p> <p>2. Section 2 of an act of the General Assembly entitled “an act to compel parents to maintain their children,” passed and approved April 28, 1908 (99 O. L., 228), arbitrarily enacting that “the offense shall • be held to have been committed in any county of this state in which said child * * * may be at the time such complaint is made” is repugnant to Article I, Section 10 of the Constitution and void.</p>

<p>SUBSTITUTION OF ADMINISTRATOR AS A PARTY PLAINTIFF.</p> <p>Revivor — By Substitution of the Administrator of a Party Plaintiff, ■ where the Action is Joint — Sections 51J/9 to 5161.</p> <p>It is within the sound discretion of the court to permit the substitution of an administrator as a party plaintiff, without notice or the issuing of summons or the entering of a conditional order of revivor.</p>

<p>APPEAL IN THE MATTER OF GUARDIANSHIP OF AN IMBECILE.</p> <p>Guaráian and Ward — Right of Appeal, by Guardian of Imbecile — From Order Terminating the Guardianship — Sections 61/07, 6208, 6028 and 6816.</p> <p>An appeal may be taken by the guardian of an imbecile in the interest of the trust from an order of the probate court, made upon application of the alleged imbecile himself, terminating the guardianship,</p>

<p>SALES THROUGH A JOINT ASSOCIATION.</p> <p>Corporations — Knowledge as to By-laws of — Corporation Holding Stock in Another Company Chargeable with Notice of — Construction of Contract Created by By-law — Acquiescence—Agency—Rights and Liabilities of a Stockholder■ as a Stockholder and as One Under Contractual Relations with the Corporation,</p> <p>1. A corporation is chargeable with knowledge of the by-laws of another ^corporation of which it is a stockholder, and where one or more of its officers is familiar with the business methods of such company as carried on under the provisions of such by-law it is chargeable ivith actual knowledge thereof.</p> <p>2. The by-law involved in the case under consideration is probably sufficient to create a contract between the company and its stockholders, but regardless of the legal effect of such a by-law acquiescence in its provisions is sufficient to create a contract.</p> <p>3. The practical construction placed upon a contract by the parties thereto will be adopted by a court, where there is any ambiguity and the construction thus placed upon ,it is not manifestly contrary to the terms of the agreement.</p>

<p>SALES OF INTOXICATING LIQUORS ON THE OHIO RIVER.</p> <p>Criminal LawH — Jurisdiction over Offenses Committed on the Ohio River — Bales of Liquor Opposite “Dry" Territory — Beal Law Does Not Confer Jmis diction, to Punish on Account of such Bales — Section J/86Ji-20a.</p> <p>The mayor1 of a municipality, which has been voted “dry” under the Beal law, is without jurisdiction over a defendant who is charged with the sale of intoxicating liquor from a boat, anchored opposite such municipality, but outside of the low water line.</p>

<p>POWERS ON THE STATE RAILROAD AND THE INTERSTATE COMMERCE COMMISSIONS RESPECTIVELY.</p> <p>Gar Service Regulations — Authority of the State Railroad Commission to Regulate Demurrage Charges and Free Time to Consignees Limited to Intrastate Commerce — Concessions for Individioal Convenience « Clog on Commerce Generally — Instruments of Commerce Distinguished from Commerce Itself — Lessening Significance of State Lines — When Interstate Commerce Begins and When it Ends with Reference to a Particular Shipment.</p> <p>Tie regulations adopted by the Ohio Railroad Commission with reference to car service are invalid as to interstate shipments over interstate commerce railways, but as to intrastate commerce they are valid and enforcible.</p>

<p>JOINDER OF A POLICE OFFICER AND HIS SURETY.</p> <p>Joinder of Parties and Causes — Action for False Imprisonment — Police Officer and Ms Surety Made Defendants in Action for Damages— • Failure to Pay Damages not Essential to the Bringing in of the Surety — Sections 4994, 5058 and 5059.</p> <p>1. A cause of action against an officer may be joined with one jointly against the officer and his surety on his official bond.</p> <p>2. The cause of action against the officer is the subject of the action, and the joint, cause of action against both on the official bond is a transaction connected with the subject of action, both causes affecting all the parties to the action, therefore being properly joined.</p>

<p>MALPRACTICE BY AN ATTORNEY.</p> <p>Attorney and Client — Action Against Attorney for Malpractice Barred by the One Year Statute of Limitations — Failure to Inform Client of Facts Acquired from a Former Client not Malpractice — Essential Allegations of -a Petition for Malpractice — Facts which are Insufficient xipon Which to Base a Petition for Malpractice — And Insufficiency of Prior Averments Introduced into Subsequent Causes of Action by Reference Only.</p> <p>1. Section 4983, Revised Statutes, prescribing a one year’s limitation for the bringing of an action for malpractice applies to attorneys at law as well as physicians and surgeons.</p> <p>2. One retaining an attorney at law to secure for her the administration of her deceased husband’s estate under Section 6005, Revised Statutes, is not entitled to information acquired by her counsel in a prior professional relation concerning the execution of a will by a brother of her husband in which he devised his property to his mother, notwithstanding the fact that such knowledge and its consequent legal advantage to plaintiff if known to plaintiff might have enabled her under Section 5943 to prevent the beneficiary thereof from taking under the will for failure to .probate it until after the mother’s rights were forfeited, and have saved her expense of litigation by reason of the probate thereof. Nor can such .litigation be deemed' the obvious and- natural sequence of the refusal of the probate court to appoint her administrator upon which to found an action for malpractice without other facts to explain how such damages flowed from the facts complained of.</p> <p>3. In an action for malpractice against an attorney at law the pleader must allege: (1) the relation between the parties; (2) pertinent facts which disclose the dereliction of duty by the defaulting party and support the complaint of injury; (3) negligence with reference to such facts of a character to suggest that the injury may have flowed therefrom; and (4) allegations of damages constituting the proximate result of the negligence alleged; and unless the connection between the successive propositions and' elements he apparent from the statement of them, the pleading must inform the court by additional averments how one element flows into another. That is, the nexus must be obvious or specially pleaded.</p> <p>4. A petition in an action for malpractice against an attorney at law, alleging his retainer to secure plaintiff the administration of her husband’s estate; the death of her husband’s brother testate, devising his ancestral property to his mother who failed to probate the will until after the statute of forfeiture had run; the attorney’s assistance in probating such will; his having knowledge of the existence of the will and neglecting to inform plaintiff and the court of the fact of forfeiture; and failure thereby to secure the coveted appointment and damages as a result thereof, does not state sufficient facts to sustain the action.</p> <p>5. Incorporation of the averments of prior causes of action into another cause of action by reference only renders such cause of action specially vulnerable to demurrer, if the facts in such references are not otherwise pleaded and are essential to such cause of action.</p>

<p>ACTION TO RESCIND A POST-NUPTIAL AGREEMENT.</p> <p>Husband and Wife — Anti and Post-Nuptial Agreements — Consideration for Release by Husband of All Interests in his Wife's Property— • Such an Agreement Purely Executory — Principles of Quia Timet not Applicable — Legal Rights.</p> <p>1. The anti-nuptial agreement, not in writing, involved in this case is not supported hy evidence establishing a sufficiently clear, definite, complete and mutual understanding .between the parties to constitute a valid anti-nuptial agreement in consideration of marriage.</p> <p>2. A promise by a wife to thereafter conduct herself toward her husband as a wife should, is simply a promise to do. what she was already obligated to do, and does not constitute a valid consideration for a release by him of all his rights present and prospective in her property; but inasmuch as such a contract is purely execu-tory, and ground does not exist for an application of the principles of quia timet, a court of equity will refuse to rescind it upon the petition of the husband.</p>

<p>LIABILITY FOR FAILURE TO DELIVER TELEGRAPH MESSAGE.</p> <p>Contract — For Transmission of Telegram — Diverse Rules in Different States as to Liability for Failure to Deliver — Law of State from which Message was Sent Controls.</p> <p>In an action against a telegraph company for damages for failure to transmit a message from New York to Ohio, the provision of the contract for transmission as to non-liability for an unrepeated message, which provision constitutes a good defense in New York but not in Ohio, is available to the telegraph company.</p>

<p>PROSECUTION FOR KEEPING A GROCERY OPEN ON SUNDAY.</p> <p>Sunday Laws — Opening a Grocery is Common Labor — And Not a WorJc of Necessity — Jurisdiction of Mayor — For First Offense not Triable . to a Jury — Section 708S.</p> <p>1. The opening of a grocery on Sunday, for the purpose of selling to all who may come, is not a work of necessity, and is a clear violation of the statute forbidding the performance of common labor on that day.</p> <p>2. One “who desires to set up the defense that his opening of a grocery on Sunday was a work of necessity or charity, must prove by satisfactory evidence that the sales which he made were of a character that would bring them within a proper definition of works of necessity or charity.</p>

<p>INDEFINITE CONTRACT FOR THE PURCHASE OF LUMBER.</p> <p>Contracts — Action for Breach of — Sales—Indefiniteness as to Amount to be Furnished — Extrinsic Evidence as to Probable Amount— Lacle of Mutuality.</p> <p>1. A contract for the purchase of lumber, which is so indefinite that the amount to be furnished under the contract can not be ascertained with any degree of certainty, either from the contract itself or from extrinsic evidence, is not enforcible.</p> <p>1. A contract indefinite to such a degree is invalid also for lack of mutuality.</p>

<p>FINDING AS TO CLAIM FOR WIDOW’S ALLOWANCE.</p> <p>Widow — Finding as to Whether Claimant toas Legal Wife Appeal-able — Proper Method of Raising the Question — Section 602J/.</p> <p>The question whether the person claiming to he the widow of a decedent is in fact his widow, and therefore entitled to an allowance from his estate for her first year’s support, should he raised hy exception to the inventory, and the finding of the prohate court with reference thereto is appealable to the court of common pleas.</p>

<p>COUNTY COMMISSIONERS WITHOUT AUTHORITY TO EMPLOY SPECIAL COUNSEL.</p> <p>Scope of the Power of Public Officials — Can not be Exceeded in Furtherance of Public Interests — Remedy in Case of Incompetence or Refusal to Act — History of Legislation with Reference to County Commissioners — Legal Advisor and Legal Counsel Distinguished— Word “Officer” Includes Officers and Board, When — Saving Clause as to Township Trustees — Construction of Sections 845 and 1214.</p> <p>1. In the absence of any statutory provision either express or implied,' other persons can not he legally emplpyed and paid out of the public treasury to perform the duties of an officer provided by law, unless such officer refuses to act or becomes adversely interested.</p> <p>2. County commissioners are without power to make a contract for the employment of special counsel to represent the board in particular litigation, notwithstanding such a contract would be in furtherance of the interests of the county.</p>

<p>EXCLUSION OF PROSECUTING ATTORNEY FROM GRAND JURY ROOM DURING THE VOTING.</p> <p>Criminal Law — Indictment not Invalidated by Presence of Prosecuting Attorney in the Grand Jury Room During the Voting, When — But his Presence There at such a Time is Without Warrant — Pull Collection of Authority on this Subject as Found in the Statutes, Text Boohs and Decisions — Construction of the W^ords “No Other Person" as Used in Section 1195 — Purpose of Amendment of this Statute in 1S69 — -Effect of Change of Phraseology on Pre-existing Law — Legislative Intent — Analogy from Petit Juries — Practice in the Federal Courts — Common Law Procedure — Surplusage—Plea in Abatement — Effect upon Indictment of Irregularities in Procedure.</p> <p>1. The mere presence of the prosecuting attorney or his assistant in the same room with the grand jury while the grand jurors are deliberating or casting their votes, is not sufficient to sustain a plea in abatement and discharge an indictment, in the absence of any proof as to misconduct on the part of these officers which resulted in prejudice toward the accused, or in the finding of an indictment which would not otherwise have been found.</p> <p>2. But by the great weight of authority as expressed in similar statutes in other states, the consensus of opinion of text writers, and the reason and spirit of the law, as well as the grammatical sense and meaning of the language used is, that while the prosecuting attorney has the right at all times to appear before .the grand jury for the purpose of giving information relative to any matters cognizable by it, or of advising it upon any legal matter when required, or of interrogating witnesses before the jury when he' or i,t deems, such examination necessary, he has no right to remain in the room while the jurors are expressing their views or casting their votes upon 'any matter before them.</p>

<p>PROSECUTION FOR VIOLATION OF DRY CLEANING ORDINANCE.</p> <p>Municipal Corporations — Power of, to Regulate the Business of Dry Cleaning — Not Restricted by Authority Conferred on State Fire Marshal — Sections 409-5J/ and 1536-100, par. 3.</p> <p>The power of a municipality to prescribe by ordinance the conditions under which the business of dry cleaning is to be carried on within the municipal limits is not restricted by the provision of Section 409-54, conferring on the state fire marshal certain powers in regard to buildings which may be inflammable.</p>

<p>AUTHORIZATION OF BONDS FOR PARK PURPOSES BY VOTE OF THE ELECTORATE.</p> <p>Municipal Gorporations — Construction of the Park Commission Act — ■ With Reference to Bond Issues Authorized by Vote of the People— Provisions of the Longworth Act Control as to Majority Required, When — Constitutionality of the Park Commission Act.</p> <p>1. The fact that cities having park commissions are given different and more liberal powers with respect to the issue of bonds for park purposes than are given to cities without such commissions, and that additional methods are provided for the execution of the powers so granted, does not render the park commission act open to constitutional objection.</p> <p>2. The park commission act does not take from cities having such commissions any of the powers to issue bonds previously conferred under the Longworth act, as amended April 4, 1906 (Revised Statutes, Section 2837).</p> <p>3. Where a park commission fails to act in accordance with the provisions of the park commission act with reference to a vote by the municipality for a bond issue for park purposes, but in lieu thereof requests council to submit such a vote to the people at a special election to be held for that purpose, and such an election is thereafter held under the provisions of Section 2837, upon an ordinance of council certified to the deputy state supervisor of elections, and not upon a resolution so certified by the park' commission itself, the- election must be considered as held under the provisions of Section 2837 and to require a two-thirds vote, rather than a majority vote as required under the park commission act.</p>

<p>WHAT EVIDENCE IR NECESSARY TO SUPPORT EXTRADITION.</p> <p>Extradition — Prima Facie Case Required — That the Accused Stands Charged with a Grime, and also that He is a Fugitive from Justice — -Court not Concluded by the Fact that the Governor has Issued a Warrant — Burden of Proof — Some of the Restrictions of Section 95, Revised Statutes, not Warranted by the Federal Constitution.</p> <p>Where extradition of an accused person is demanded, the authorities of the state making the demand must offer some proof to the effect that the accused is charged with the commission of a crime in the state making the demand, and also some proof that he is a fugitive from justice; and for want of such evidence presented to the Governor, or the court before whom the accused is brought, he must be dismissed.</p>

<p>ACTION TO SUBJECT CREDITS AND PROPERTY TO PAYMENT OF DEBTS.</p> <p>Debtor and Creditor — Proceeds of Building Contracts and Otlm■ Property Claimed by Daughter — Savings of Family not Subject to Husband’s Debts.</p> <p>Where a home but partially paid for stands in the name of a daughter, and it appears that the payments which have been made thereon consisted of small contributions from the wages of the father who worked as a bricklayer, together with savings from ordinary living expenses through many years, due to industry and frugality of the mother and daughter, no analogy is presented to the case of a debtor who makes substantial gifts and allowances to his family beyond their reasonable necessities or daily use, and the property will not be subject to payment of an old claim against the husband; but small sums remaining due on building contracts executed by him and the balance remaining in bank in an account in the name of the daughter, but used in connection with the building contracts, are subject to his debts.</p>

<p>CONDUCT JUSTIFYING DISBARMENT.</p> <p>Attorney and Client — Honesty and Truthfulness Indispensable on the Part of the Attorney — -Misconduct wMch Involves Moral Turpitude.</p> <p>An order of permanent disbarment is warranted, where the proof satisfies the court of the truth of charges of misconduct involving moral turpitude in failing to account for money collected for clients or proceeds from sales passing through his hands, or in borrowing from and failing to repay to a client money which he knew belonged to a trust fund.</p>

<p>INJUNCTION PENDING DETERMINATION OF A CONSTITUTIONAL QUESTION.</p> <p>Injunction — Preliminary Order will he Gh'anted against Enforcement of a Statute, When — Fertilizers and Regulation of the Manufacture and Sale of — Sections 4446a to 4446i and 7002.</p> <p>Where grave questions of law are involved, including the constitutionality of the statute under which the defendants claim to he acting, and the property rights of the plaintiff will be jeopardized hy enforcement of the statute, while comparatively slight injury will result from delay in its enforcement, a preliminary injunction will be granted to preserve the status quo until the court has been given opportunity to properly consider and determine the questions in issue.</p>

<p>BRINGING IN PARTIES PLAINTIFF WHO HAVE NOT ELECTED TO SUE.</p> <p>Parties — Discretion of Court with Reference to Bringing in New Parties — Controversies the Court can not Require to he Litigated— Sections 5006 and 501S.</p> <p>Under the rule that a plaintiff can not he compelled to admit to the action he has instituted parties as being liable to him other than those he has chosen to sue, a purchaser of machinery, against whom an action for recovery of the price thereof has been brought by the manufacturer, can not bring in- as a defendant a third party to whom he has sold the same machinery under an agreement whereby this third party was to fulfill the contract for payment previously-entered into between the defendant and the manufacturer.</p>

<p>PROSECUTION AGAINST OWNER OF BUILDING ENCROACHING ON STREET.</p> <p>Buildings — Projection of, into Street — Prosecution of Owner — Abutters Can Obtain no Rights in Street by Prescription — Estoppel—Evi-dence as to the Position of Other Structures — Monuments.</p> <p>In a prosecution for allowing a building to project into the street, it is not error to exclude evidence as to the similar position of other structures, offered for the purpose of showing the true boundary line, when there are monuments in existence, probably erected in accordance with the original survey and plat, from which the line can be determined.</p>

Heard on objection to the introduction of a city ordinance in support of an indictment for manslaughter where the accused, in violation of the same, caused his vehicle to come into collision with a person, resulting in his fleath.

<p>EQUITIES ARISING BY REASON OF SERVICES INURING TO THE BENEFIT OF THE PUBLIC.</p> <p>Office and Officer — De Ju/re and de Facto Boards of Education — De Facto Board Ousted by Quo Warranto — Appropriation for Counsel Fees —Action to Enjoin Payment — Contract of Employment Invalid, but Obligation may be Paid — Application of the Burns Law.</p> <p>1. Although a contract for the employment of counsel is invalid,, where made by a de jure board of education to test the title of the de facto board, yet, where the city solicitor espoused the cause of the de facto board, and the court has upheld the contention of the relators in the quo warranto proceeding, the mere invalidity of the employment is so far overcome by equities inuring to the benefit of the public, that a court of equity will not interfere with payment of the moral obligation thus incurred by enjoining its satisfaction out of the public treasury.</p> <p>2. But where no certificate of the clerk, that the funds requisite for the payment of such a claim were in the treasury and unappropriated, was filed prior to the adoption of the resolution authorizing payment, as required by Section 28346, the resolution is without effect and an injunction will lie against such payment.</p>

<p>MUNICIPALITIES WITHOUT POWER TO REISSUE NEGOTIABLE BONDS WHICH HAVE BEEN LOST.</p> <p>Municipal Corporations — Without Power, Express or Implied, to Reissue ’Negotiable Bonds which have been Lost — City Without Protection in the Event of Subsequent Payment of Coupons — Limitations on the- Substitution of Bonds for Those Outstanding■ — Renewal of Legal Evidence of Debt — What Constitutes “Accident” Against Which Relief May be Granted — Jurisdiction of Courts of Chancery in such Cases — Injunction—Pleading.</p> <p>1. The entire absence of any power in a municipality, either express or implied, to reissue a negotiable bond to take the place of one which is still outstanding and a continuing primary obligation, disqualifies a court of chancery from entertaining an application for a mandatory injunction to compel the issue of such a bond to take the place of one which has been lost.</p> <p>2. Moreover, if such power existed, and it should be conceded that re^ lief might be granted on the ground of “accident,” equity would be very slow to say that the misplacing of such a bond through “inadvertence” was an accident within contemplation of that term; nor would jurisdiction be assumed against a party equally'entitled to protection with the one seeking relief, as for example against a' municipality with ever changing officers, with reference to a negotiable bond having forty-six years yet to , run, notwithstanding the offer of the plaintiff to make a provision for indemnity in the event the bond should be found.</p>

<p>BILLS ON EXCEPTIONS MUST REMAIN ON THE FILES.</p> <p>Bills of Exceptions — •Constitute a Part of the Record — Gan not he Withdrawn Permanently from the Piles — Sections 5801, 5801a, 5802, ' 6?Ji2a and 6716.</p> <p>Inasmuch as a bill of exceptions is an original paper in a case and a part of the record, a court will order that it be returned to the files, upon being informed that it has been taken away with the intention of withdrawing it pemanently, notwithstanding it was ordered and paid for by the party who has withdrawn it.</p>

Edwin' W. Kemper cited in support of the motion to dissolve the temporary restraining order: As to the power of court to grant writs of injunction: Stewart et al v. The Little Miami K. R. Co., 14 0., 358. As to burden of proof: Spangler v. City of Cleveland, 43 O. S., 526. As to character of the injury which must be shown: Falls Village, etc., Co. v. Tibbets, 31 Conn., 165; ITovelman v. Kansas City Horse R. Co., 79 Mo., 632; Goodall v. Crofton, 33 0. S„ 271.

<p>RIGHTS OF A WIFE AS TO PLACE OF RESIDENCE.</p> <p>Husband and Wife — Action by a Wife Against Her Husband for Par- ‘ tition, and Refusal to Follow Him to Another Place of Residence not Ground for Divorce, When.</p> <p>1. The refusal of a wife to abandon a reasonable place of residence which has been established by the husband and is suitable for the family and affords advantages to the children for schooling and employment, and to follow him to another locality affording no such advantages is not a ground for divorce.</p> <p>2. Nor is ground for a divorce afforded by the further fact that the wife has brought an action against the husband for the partition of land as to the management of which they can not agree.</p>

This case was instituted by the plaintiff to recover damages in the sum of $100,000 for alleged conspiracy on the part of the defendant company and its officers for disrupting and taking away the sales force of the plaintiff company; for constructing a register similar to the register manufactured by plaintiff and marketing it as the register of plaintiff company; for charging the plaintiff company, with financial embarrassment and for using the advertising matter and…

<p>INTEREST OF LIFE TENANT IN OIL OR GAS PRODUCTION.</p> <p>Life Estate — Includes Royalties from Land, 'When — Lease for Oil and &as Executed hy Testator — Wells Drilled after His Death — Presumption as to Testator’s Intention — Privilege of Life Tenant to Work Mines, Quarries, etc.</p> <p>When a life estate is created in land under lease to a gas and oil company, the life tenant takes the land with the right to all royalties from wells thereon, whether such wells were drilled before or after the death of the testator.</p>

<p>MAKING THE DOW TAX A CHARGE ON LAND.</p> <p>Constitutional Law — Provision Malting Dow Tax a Lien on the Land Where Liquor is Sold Void, When — Injunction Lies Against Spolia- ' tion of a Landlord Who has Covenanted Against Such Sales and was Ignorant of Their being Made — Police Power — Taxation—Liquor Laws — Section 1/364-12.</p> <p>The provision of Section 4364-12, making any balance of the Dow tax, left after the sale of the chattels of a tenant for non-payment, a lien upon the premises where the liquor is sold, is unconstitutional and void as to landlord who has covenanted against such sales and ignorant that they were being made, and the sales were in fact made in a dwelling-house secretly to guests.-</p>

<p>PRIORITY OF JUDGMENTS AS DETERMINED BY EQUITABLE RIGHTS.</p> <p>Res Judicata — When the Plea May he Urged — Restoration of “Destroyed" Deed — Lis Pendens — Pwre Equities — Laches—Estoppel— Title — Priorities—Date of Lien Under a Judgment which was Appealed — Suspension of Judgment ~by Appeal — Wills—Sections 413J¡, 5235 and 5236.</p> <p>1. The appearance of an administrator as a party to a cause, and his allegation of probable liability against the estate, does not make the judgment thereafter oftained res judicata as to creditors of the estate who were not parties to the action and who had at the time another action pending to which the estate was a party defendant, and dhe plea of res judicata can not stand against the equities of creditors so situated whose action has resulted in a judgment.</p> <p>2. Where a wife persuades her husband to execute a deed in her favor in payment of a stale loan, and the husband afterward destroys the deed and makes a will by which the same property is passed ■ to his wife, and she actually takes under the will without a formal election, she can not thereafter maintain priority of title to the property so devised to her over judgment creditors of the estate by virtue of a decree which restored the deed her husband destroyed, but which was never “lost.”</p> <p>3. Where a question of priority of judgments appeals to the conscience of the court, equitable rights may be determined by assigning.to the judgment embodying the least equity a lien dating from the circuit court decree, rather than that of the common pleas from which an appeal was taken, especially where the party holding the judgment embodied in the decree has been guilty of laches to a degree which should estop the assertion of the claim.</p>

<p>LIABILITY UNDER INDEMNITY BOND FOR LOSS THROUGH BANK CASHIER.</p> <p>Fidelity Insurance — Bond Covering Honesty of Bank Cashiei — Misappropriation of Funds of Bank Toy — Equivalent to Embezzlement or Larceny by — Contract is Continuous — And Renewal of Bond Extends Indemnity from Year to Year.</p> <p>1. “Fraud or dishonesty” of a hank cashier “amounting to embezzlement or larceny,” for which a fidelity and guaranty company promises “to make good and reimburse,” comprehends such dishonest and fraudulent conduct resulting in loss as is equivalent to embezzlement or larceny, and is not confined to the technical offenses mentioned or such misappropriation of funds as would subject the cashier to a conviction for embezzlement or larceny.</p> <p>2. An indemnity bond promising “during the term” of one year for which it is executed, “or any subsequent renewal of such term,” to reimburse and make good fraudulent and dishonest transactions and losses by a bank cashier, “committed during the continuance of said term, or any renewal thereof, and discovered during said continuance or renewal thereof or within six months thereafter,” is a continuous contract extending the indemnity from year to year, as distinguished from separate and distinct contracts for each year, and covers a misappropriation or fraud committed during the first year of the contract of indemnity but not discovered until six months after the bond had been renewed.</p>

<p>DIVERSION OF LANDS TO OTHER THAN PUBLIC USES.</p> <p>Ejectment — Lies to Recover Possession of Lands Irrespective of Easement for Certain Purposes — Facts Constituting a Dedication — Corporation Formed for Particular Purpose Presumed to have Been Dissolved upon Completion of its Purpose — Statute of Limitations Runs Against Municipalities■ — Diversion of Lands to Other than Public Uses not an Abandonment of Such Public Use, When — Appropriation Proceedings to Quiet the Claims of Third Parties not Binding on Party under which the Railway Holds Possession — Ambiguous Title — Construction of Contract at Time of Making Controls — Municipal Corporations — Riparian Rights.</p> <p>1. A city may maintain an action against a railway company under Section 5781, Revised Statutes, to recover possession of land of which the former has the paramount title and the latter an easement for certain purposes therein.</p> <p>2. A strip of land occupied by a street and public place from 1796 down to the recording of a town plat in which it was located as a street in 1800 and continued to be so used until 1814, when the town was incorporated as a village by act of the Legislature making reference to such plat and was so used in 1836 when the village became incorporated as a city, if not a statutory dedication thereof, becomes dedicated as such at common law.</p> <p>3. The Connecticut Land Company was a corporation for the particular purpose of disposing of the lands of the Connecticut Western Reserve, and, having completed its business and adjourned sine die in 1809, it will be presumed that such company was dissolved and that neither its stockholders nor their successors retained any interest in such lands, especially as to a certain irregular strip of sandy land then of no particular worth between a lake and high bluff upon which such company had platted a town, which strip they dedicated as a street thereof and which was the only access afforded the inhabitants of such town to the lake beach.</p> <p>4. The statute of limitations runs against municipalities where the adverse occupation is by permanent structures excluding the public. Hence, if railway companies occupied openly, adversely, and exclusively á strip of land dedicated as a street with their tracks, buildings, etc., recognizing no title except that of their own from 1849 'to 1893, they would obtain a complete and absolute title to such land.</p> <p>5. The city of Cleveland by its incorporating act in 1836, having been given authority to mark the boundaries of its streets; by act of 1837 (35 0. L., 65), a way to vacate its public places and streets; and by special act in 1844 (43 O. L., 3) having obtained express power to utilize a lake front strip, dedicated as a street, for other purposes, does not abandon the strip by such diversion of its uses so as to give railway companies occupying part thereof with tracks etc., title by abandonment, especially since, instead of permitting such railway companies to appropriate rights therein, the city entered into a contract granting the use of such lands for railway purposes, but reserving some control thereof.</p> <p>6. Appropriation proceedings, instituted by railway companies occupying, as a right-of-way under contract with a city, a strip of land dedicated by the Connecticut Land Company as a street, against certain alleged claims of title by successors of the original grantors, to which the city was not made a party, do not bind the city — either upon the claim that the city was an unknown party, because it was a known party and as against such claims the railways claimed title and possession from the city — or upon the ground of color of title at the time of the contract with the city for such right-of-way, inasmuch as both railway companies and city regarded the latter as being the owner and occupier of such lands.</p> <p>7. A contract, ambiguous as to title granted for a right of way for tracks, depots, etc., necessary for the operation of railways over land owned by a rapidly growing city, located at the confluence of a large navigable lake and river made accessible to shipping by government improvements, and valuable because of its natural terminal facilities to railways and shipping interests, will not be construed as bartering away all access to the lake, especially where such advantages were known and in partial realization at the time, with the anticipation of future benefits imminent. The mere fact that the " city might have had power to grant away such rights can not » control.</p> <p>8. Railway companies for several years, and in litigation with other parties claiming adversely to them, having construed their occupation, under contract with a city for a right of way over certain lands dedicated to public uses, as that of a licensee of and recognizing the paramount right in the city, can not more than fifty years later claim title to such lands by adverse possession,</p>

<p>DIVISION OF TAXES AND RENTS AT TERMINATION OF LIFE ESTATE.</p> <p>Life Tenant and Remainderman — Division of Rents and Profits, Taxes and Expenses 'between — Wills—Lease.</p> <p>1. Taxes are chargeable against the estate of a life tenant up to the day of his death and against the remainderman from that date forward.</p> <p>2. Rents should be divided in accordance with the same rule, whether paid in advance to the life tenant or at the end of the term to the remainderman.</p>

<p>ASSUMPTION OF CONTROL OF CORPORATIONS BY COURTS.</p> <p>Corporation — Injunction against Directors or Managers■ — Discretion of Directors as to Declaration of Dividend — Taking Corporation out of the Control of Its Directors — Receiverships for Insolvent Corporations — Practice of Warding 0¶ Creditors Toy Receivership Reprehensible — Trust Will not be Declared in Property, Unless — Purchase by a Corporation of Its Own Shares — General Powers of Corporations.</p> <p>1. An injunction will not be granted by a court of equity, on the ap-plicátio of stockholders of a corporation, to restrain or interfere plication of stockholders of a corporation, to restrain or interfere affairs of the corporation, when they are not exceeding their legal powers and are acting within the scope of their authority, in the absence of a showing of fraud or breach of trust.</p> <p>2. A court of equity has no power to direct or compel the directors of an Ohio corporation to declare a dividend out of any other fund than the surplus profits as defined by the statutes of Ohio; and in the absence of bad faith or an arbitrary and unjustifiable withholding of the profits of a corporation by its board of directors, the discretion, vested in the directors to declare a divdend will not be interfered with or controlled by the courts. • ■</p> <p>3. In the absence of statutory authority, a court of equity has no power at suit of stockholders to take any steps for the sole purpose of winding up the affairs of the corporation, or in ordinary cases take the control and management thereof out of the hands of the directors even on the ground of mismanagement and fraud.</p> <p>'4. Even in cases of insolvency it is doubtful whether or not a court of equity, under the Ohio statutes has the power and authority to appoint a receiver to take charge and possession of the property of the corporation and conduct its business except in very rare cases where it is necessary to preserve' the property of the corporation pending the determination of some other legal rights of the corporation, its stockholders or creditors, or in cases where the court has dissolved the corporation under Sections 5651 and 5688 inclusive of the Revised Statutes of Ohio, and the receiver is then appointed for tlie sole purpose of administering the property of the deceased corporation under the direction of the court.</p> <p>5. The practice of appointing receivers even of insolvent corporations in the absence of foreclosure proceedings or judgment levies on its property, hut solely for the purpose of warding off its creditors and preventing or delaying creditors and others in the assertion of their legal demands is reprehensible and unauthorized.</p> <p>6. A trust in either real estate or personal property will not be declared unless the evidence showing the establishment, or declaration thereof, is clear, convincing'and conclusive, and that there are sufficient words to create it, a definite subject upon which the trust may be engrafted, a certain or ascertained object, and the terms of the trust are sifficiently declared to enable the court to pronounce judgment without resorting to extraneous evidence to determine every element of the trust.</p> <p>7. In the absence of statutory authority corporations organized under the laws of Ohio have no power or right to traffic in or purchase their own shares except for the purpose of saving themselves from loss.</p> <p>8. Corporations being artificial creatures of the state’s creation, have such powers and only such as are expressly granted by law or which are necessarily implied to enable them to carry into effect the powers expressly granted, and this rule applies with equal force to private corporations as well as to public corporations.</p>

<p>MAKING GOOD DEFICIENCY IN STREET ASSESSMENT ARISING FROM CORNER LOT EXEMPTIONS.</p> <p>Streets — Assessments for Improvement of — Deficiency Arising from Corner Lot Exemptions — May be Added to the Remaining Assessable Frontage — Jurisdiction and Authority o.f Council.</p> <p>The burden of bearing that portion of the cost of a street improvement not assessable under the law against corner lots rests upon the abutting owners, notwithstanding in the petition for the improvement they only bound themselves to pay an assessment “by the front foot for the number of feet set opposite their names, less two per cent, and the cost of the intersections of public alleys and that portion of corner lots exempted by law and not signed for in this petition.”</p>

<p>LIABILITY FOR GOODS DAMAGED IN TRANSIT.</p> <p>Carriers — Goods Damaged in Transit — Presumption that Damage Occurred on the Line of the Last Carrier, "When.</p> <p>Where window glass has passed over the lines of several connecting carriers, the fact that a preceding carrier has among its records a memorandum to the effect that some of the boxes rattled as they were being loaded is not sufficient to overcome the presumption that the breakage complained of by the consignee occurred on the line of the last carrier, when it appears that the last carrier gave a receipt for the good condition of the shipment and no change was made in the handling of the glass after the discovery that some of the boxes rattled.</p>

<p>ACTION FOR RECOVERY ON A CONTRACT OF SALE.</p> <p>Pleading — Action against a Partnership — On Contract for Sale and Purchase of a Horse — Facts which State a Cause of Action — Section 51Jf6 — Action Joint and Several — And Heath of One of the Defendants not Ground for Demurrer.</p> <p>1. A petition which states distinctly a contract for the sale and purchase of a horse, a definite price agreed upon, delivery of ■ the horse at the place and time agreed upon, .and refusal of the defendants to accept or pay for the animal, is not open to demurrer on the ground that the facts stated do not constitute a cause of action.</p> <p>2. An allegation appearing in a demurrer but not in the petition and to the effect that one of the defendants has departed this life since the filing of the petition can not be considered at the hearing on the demurrer.</p> <p>3. But were this not true, the demurrer to such a petition against a partnership should he overruled for the further reason that it is not necessary to make the administrator of a deceased defendant a party, since by the provisions of Section 5146 the obligation is joint and several, and not strictly joint as under the common law rule.</p>

<p>ACTION FOR RECOVERY OF OPTION AND FOR SPECIFIC PERFORMANCE.</p> <p>Specific Performance — Gan Not he 'Enforced Where Title is Doubtful— Failure to Bring in Judgment Creditor of a Go-parcener Renders Title Unmarketable — Insufficient Description of Property Involved —Effect of Failure to Tender Deed Until After the Bringing of Suit to Recover Option Paid.</p> <p>1. In partition proceedings a failure to issue summons for a judgment creditor of one of the co-parceners, who did not answer or enter his appearance, renders the title unmarketable.</p> <p>2. Under the rule that specific performance will not be enforced where the title is doubtful the owner of such a title will not be decreed specific performance against a proposed purchaser who has de- ■ dined to take the property because of the defecitve title.</p> <p>3. In an action for specific performance the description of the property involved is insufficient; where there is nothing to indicate its location except the name of the city as shown by the line where the contract is dated and the further fact that the property is at the corner of two .streets which are named; and in such a case the maxim, id certum est quod certum reddi potest, has no application.</p> <p>4. Under a contract to convey land, a failure to make a tender of ,the deed until after suit has been brought for recovery of the amount paid as an option is a bar to a decree for specific performance on cross-petition.</p>

<p>AVOIDANCE OF RELEASE UNDER CLAIM FOR PERSONAL INJURIES.</p> <p>• "Negligence — Proximate Clause Notwithstanding■ Contributory Negligence —Release—Avoidance of — -Tender Bade of Money Received is- a Prerequisite to a Suit for Damages.</p> <p>1. Irrespective of carelessness on tlie part of plaintiff in immediately stepping to a place of safety after removing an obstruction from a clay granulating machine operating several revolving knives, the negligence of the defendant’s foreman, who had charge of the levers and was in a position to observe the plaintiff's danger, in starting the machine without other warning than “Look Out,” and before , the plaintiff had gotten away from his place of danger, constitutes the proximate cause of the injury.</p> <p>2. A tender back of money received in- release of liability for per- • sonal injuries is prerequisite to repudiation of the contract of release, and notwithstanding the release may have been obtained by the grossest fraud, the defendant must be put in statu quo before an action for damages for the injuries sustained can be brought.</p>

<p>IMITATION OF AN ESTABLISHED COMMERCIAL NAME.</p> <p>Unfair Competition — In the Use of the Word “French" as Applied to lee Cream — Methods Calculated to Deceive — Injunction—Trade Names.</p> <p>Where a family named French have been in the milk, cream, butter and general dairy business in the same locality for a great number of years, and have always carried on their business under the name of French whether as individuals or a corporation, and the manufacture and sale of ice cream has become- an important branch of their business and has grown to large proportions, injunction will lie against the uge in the same locality of the name “French Ice Cream Co.” by one whose name is. not French and whose nationality is not French, and whose only claim of right to use the word “French” is based upon the fact that his ice cream is made in a “French pot,”' and the testimony discloses that practically all the ice cream manufacturers use the French pot process.</p>

<p>CRIMINAL PROSECUTIONS AND PROCEEDINGS IN BASTARDY DISTINGUISHED.</p> <p>Rescuing a Prisoner by Force — Prosecution for — Gan not be Maintained unless the Prisoner is Charged with an Offense — Bastardy not an “Offense” Within the Statute — Nor is it a Criminal Prosecution— But a Statutory Remedy to Enforce a High Moral Duty — Words and Phrases — Authority of Constable to Select an Assistant — Section 6903.</p> <p>An indictment charging a defendant with having rescued another who • was in the lawful custody of a constable under a warrant issued hy a justice of the peace in bastardy proceedings, is insufficient under Section 6903, Revised Statutes, because the person so rescued was not charged with an “offense.”</p>

<p>ASSIGNMENT OF LIFE INSURANCE UNDER THE LAW OF MICHIGAN.</p> <p>Life Insurance — Action by Beneficiary on Policy Assigned in Michigan —Claim that the Law of Michigan Makes such an Assignment Void — Answer and Supplemental Answer not Inconsistent — Inter-pleader — Parties—Cause Pending in Courts of Two States — Plaintiff Required to Return to Michigan to Litigate her Claim.</p> <p>1. Where a life insurance company is sued in OJiio by the beneficiary of a policy issued in Michigan and assigned in Michigan by both the insured and the beneficiary to parties still resident in Michigan, an answer by the company denying the right of- the beneficiary to recovery by reason of the assignment is not inconsistent with a supplemental answer alleging the subsequent filing in the Federal court in Michigan by the assignees of an action on the same policy, and further alleging the necessity of making the assignees parties to the Ohio' action; nor is such a supplemental answer, without a tender of the proceeds of the policy into court, in the nature of an interpleader, but the two answers must be read together, and the company can not be required to elect upon which it will rely.</p> <p>2. In such a case a motion by the insurance company to make the assignees parties to the action will be overruled, for the reason that there can be no injustice in requiring the beneficiary to return to Michigan and litigate in a court of that state her claims against residents of that state with whom she dealt while herself domiciled there; and the motion of the company to dismiss the action in default of an order making the assignees parties will be granted.</p>

<p>DEVISE IN FEE SIMPLE MODIFIED BY SUBSEQUENT PROVISION.</p> <p>Wills’ — Devise of Residue to Wife in Fee Simple — Made a Devise for Life with Authority to Consume by a Subsequent Provision — Word “Desire” Depositive, When — Lease Executed by Life Tenant Effectual After Her Death.</p> <p>1. Under a devise by a testator to his wife in fee simple, followed by a subsequent provision that “in case my wife should die leaving'said estate unconsumed I desire that the same shall be distributed” in payment of certain legacies mentioned, the wife takes a life estate only but with the right to consume the estate in whole or in part during her life time.</p> <p>2. The word “desire” as used in the phrase “I desire that the same [referring to the testator’s estate] shall be distributed” is de-positive and conveys a vested estate.</p> <p>3. A widow under a devise of an estate for life with authority to consume the estate in whole or in part, has power to execute a lease which will be effectual after her death.</p>

<p>CONSTITUTIONALITY AND SCOPE OF THE OHIO RAILROAD COMMISSION ACT.</p> <p>Railroad Commission — Constitutionality of the Act Creating — Authority of the Commission Limited — Jurisdiction of the Courts — -Distribution of Cars to Coal Mines — -Arbitrary Rules Promulgated by the Commission-Inadmissible — Where the Effect is to Determine Future Judicial Questions as to Discrimination — What the Commission May Do — Section 20 et seq.</p> <p>1. The Ohio railroad commission act is saved from- invalidity 'by the provision that its jurisdiction shall not be exclusive, but a matter first presented to the commission may be subsequently heard and determined de novo in the courts.</p> <p>2. It is ■ not just or equitable to include railroad fuel cars with the regular equipment of a company in the distribution of cars to coal mines along its line.</p> <p>3. Nor is it within the province or power of the commission to promulgate an arbitrary rule as to the distribution of cars in the future, and thereby determine a future judicial question as to discrimination in the distribution of such cars without regard to circumstances and conditions as they may then exist; but the most that the commission can do is to observe the provision of Section 244-20 (Sec. 10), that when a railroad has an insufficient number of cars to meet all requirements, “such cars as are available shall be distributed among the several applicants therefor in proportion to their respective immediate requirements without discrimination between shippers or competitive or non-competitive places.'”</p>

<p>EXECUTION OF WILL.</p> <p>Wills' — Signature of Testator Attached in Absence of Subscribing Witnesses —Sections 5916 and 5989.</p> <p>1. While it is probably necessary as the law now stands that a testator who signs his will out of the presence of the attesting witnesses shall acknowledge the signature to be his signature to his will, it is not unlikely that when the question is squarely presented to the Supreme Court the case of Kyle v. Feuchter will be so distinguished that the acknowledgment will not be required on. the part of the testator of the paper as his will, but merely the acknowledgment of his signature, or an acknowledgment of the paper as an instrument signed by him.</p> <p>2. But the mere failure of a witness to hear the testator designate the. signature to the paper in hand as his signature to “his will” is not sufficient to defeat the will where at its probate other witnesses present at its execution testified that the signature to the instrument was acknowledged by the testator to be his signature to his will.</p>

<p>COURT MARTIAL OF A MINOR IN THE OHIO NATIONAL GUARD.</p> <p>Ohio National Guard-r — Enlistment of Minor — Contract Voidable by Parent — But Minor Subject to Discipline and Liable to Court Martial while in the Service — Jurisdiction of Civil and Military Tribunals— Habeas Corpus.</p> <p>1. A minor, entering into a contract of enlistment with the Ohio National Guard, and receiving pay under said contract from the government, becomes a soldier subject to the duly authorized rules and regulations of the organization.</p> <p>2. The application for a writ of habeas corpus by a parent claiming the exclusive custody and control of such minor will he refused, notwithstanding his minority and the fact that the parent did not give his written consent to such enlistment, where said minor is under arrest on charges over which the military court has jurisdiction.</p> <p>3. Such a contract of enlistment is voidable by the parent any time-before the commission of the offense or after sentence served, but not otherwise.</p> <p>4. Civil courts will not interfere in matters over which the military tribunals have jurisdiction.</p>

<p>A BANKING PARTNERSHIP NOT A BANKING INSTITUTION.</p> <p>Banks and Banking — Banking Partnership not a Banking Institution— And not Required to Pile Report with State Auditor — Granting Leave to Amend Original Petition Saves the Running of 'the Statute of Limitations^-Where Suit has Been Brought against a Decedent the Claim Need not be Presented to his Administrator — Leave to Pile an Amended Petition Conclusive on Another Judge as to Parties and Averments — Sections 8S17, 3S1S and 99 O. L., 269.</p> <p>1. “Institutions” comprehends “corporations” or “associations” estab- • lished by law, having the attributes of permanéncy, as distinguished from ’ the temporary establishment of individual or partnership effort, together with officers and members; hence, a banking partnership is not an “institution” within the meaning of Sections 3817 and 3818, Revised Statutes, requiring “every banking institution, or corporation engaged in the business of banking” to file certain reports, verified by' its officers.</p> <p>2. Sections 108 and 109 of act 99 O. L., 269, the former requiring “every banking company, savings bank, * * * and every person or co-partnership doing a banking business,” to make certain reports, and the latter requiring the president, vice-president, cashier, secretary or treasurer to verify such reports, neither expressly nor by necessary implication require a banking partnership to make reports as required by Sections 3817 and 3818, Revised Statutes. ■</p> <p>3. Granting leave to file an amended petition implies, necessarily, that no new action was commenced by filing such pleading; hence, the bar of the .statute not having run against the cause of action set forth in the original petition, will not bar recovery under the .amended petition.</p> <p>4. An action having been commenced in the life of a party defendant upon revivor in the name of his personal representative after defendant’s death no presentation to such representative is required.</p> <p>5. Leave to amend a petition by substituting new parties having been granted by a common pleas judge, it appearing that a copy of the amended petition was attached to the motion to amend, the question of the sufficiency of the amended petition as to new parties plaintiff and defendant, and averments necessarily passed upon in granting the motion will not be considered by another judge of •the same court upon a subsequent hearing upon the amended petition.</p>

<p>NEWSPAPER COMMENT ON CANDIDATES FOR THE BENCH.</p> <p>Libel and Slander — Proper Test as to 'Whether a Publication is Libelotis —Truth of the Innuendo — Defaming a Glass — Use of Figures of Speech — Comment on Candidates for the Bench.</p> <p>1. A demurrer to a petition in an'action for libel admits the truth of so much of the innuendo only as is warranted by the natural meaning of the language used in the article.</p> <p>2. Whether an article is libelous or not, is not to be determined from segregated parts thereof, but from the entire article, keeping in mind the theme of the composition, the circumstances and the occasion.</p> <p>3. If a defamatory article relates to one or more of a class of persons and not to all of the class, and no person or persons are definitely specified, the particular person defamed is neither ascertained nor ascertainable and the words are not actionable.</p> <p>4. An article printed in a newspaper shortly before-a primary election, urging the selection of upright and efficient men as judges of the common pleas court, and stating that some of the candidates are “mere youths of limited experience,” “police court and justice court lawyers,” and “third-raters,” is within the realm of fair comment and criticism on a matter of public interest and is not libelous.</p> <p>5. Over-statements in figures of speech are not intended to be accepted as' true, are not taken as true, and generally involve comparisons which are never true comparisons, and are never so intended or understood.</p> <p>6. To say of any man who is a candidate for judge, that he is unfit to be judge, is not defamatory.</p>

<p>AS TO ACCEPTANCE OF TWO DIFFERENT BIDS FOR ARTICLES OF THE SAME CHARACTER,</p> <p>Municipal Corporations — Bids and Bidding — Construction of Section 1586-619 Authorizing Contracts with the Loioest and Best Bidder.</p> <p>Inasmuch as there can not be two or more lowest and best bids for the same class of goods at the same time, acceptance of two several bids for furnishing to a municipality water meters of a different manufacture hut designed to serve a common purpose and offered at the same price, is a violation of the discretion reposed in boards of public service and of the principle of competition as provided in Section 1536-679, Revised Statutes.</p>