Volume 86 — Ohio State Reports, New Series

The city of Greenville, Ohio, by its city solicitor, filed a petition in the court of common pleas of Darke county, averring in substance that the city of Greenville is a municipal corporation in the state of Ohio; that it brings this suit by its city solicitor; that certain of the defendants are members of the State Board of Health of the state of Ohio, and that the other defendants are members of the city council of Greenville, the president of council and the mayor of…

The action was originally brought in the common pleas court of Guernsey county upon three promissory notes for $666.67 each, payable to the plaintiff in error, George W. Crawford, signed by a number of parties who were sued with him in the case. The notes were, before maturity, sold by the payee to the defendant in error, and the following endorsement made on the back at the time, “Pay to the order of Charles H. Turnbaugh, Trustee. Payment guaranteed.

In .the court of common pleas Tusch brought ejectment against the plaintiffs in error to recover possession of an alley ten feet in width, extending from 17th street in the city of Toledo one hundred feet in the direction of 16th street, dividing ground owned by Marvin lying along 17th street, the alley also passing along the rear of ground owned by Tusch facing Adams street, which is parallel with the alley.

<p>Dtides of trustees in settling affairs — Of insolvent savings company— Trustee no power to loan trust funds — Deposit in bank by trustee of trust funds — Taking certificate of déposit therefor — Presumed deposit was special and not general — Court of equity may engraft trust upon such deposit, when — Trustee regarded as preferred creditor.</p> <p>1. It is the duty of a trustee appointed to wind up and settle the affairs of an insolvent savings company to protect the trust property in every reasonable way; to get possession of the assets, reduce them to money, and under the direction • of the court appointing him, after the payment of expenses, apply the funds to the satisfaction of the claims of creditors of the insolvent company.</p> <p>2. Such trustee has not, in the absence of a proper order of court, the right or power to loan the funds of the trust coming into his hands as such trustee.</p> <p>3. A general deposit by such trustee of the trust funds in a bank is in legal effect a loan to the bank, and unless authorized by the court, is a violation of duty by the trustee.</p> <p>4. Where a trustee deposits trust money in a bank, taking as evidence thereof a certificate of deposit certifying that he as trustee has deposited the fund payable to self on return of the certificate properly indorsed, the same not' being subject to check, and no stipulation for interest made, a presumption will be indulged, in the absence of proof to the contrary, that the trustee intended to perform and not violate his duty, and that the deposit was intended as a special, and not a general, deposit.</p> <p>5. Where, in such case, the bank fails and makes an assignment for the benefit of creditors before such fund is withdrawn, and it appears that the bank, upon receiving such deposit, had mingled the trust money with its own funds, money paid out from such fund for its own purposes will be presumed to have been paid from its own money, and not from the trust fund. And if it be shown that at all times from the making of the deposit to the time of the assignment by the bank, there was in its vaults money of amount and value equal to the amount so deposited, a court of equity may engraft a trust upon such money, and the trustee will become a preferred creditor to the amount of such deposit.</p>

The plaintiff in error sued to recover damages for a personal injury.

<p>Error to the Circuit Court of Mahoning county.</p> <p>Facts are stated in the opinion.</p>

<p>Salary of common pleas judge — Sections 1284a and 1284, Revised Statutes — Method of computing additional compensatioiv — In judicial subdivisions composed of several counties — Limitations to amount of salary. ¡</p> <p>1. Where the county in which a common pleas judge resided at the time of his election, or appointment, is a part of a judicial subdivision composed of several counties, the amount of the salary to be paid such judge, under the provisions of Section 1284a, Revised Statutes, in addition to the salary provided by Section 1284, Revised Statutes, must be calculated upon the population of the county in which he resided at the time of his election or appointment, and when so ascertained is payable quarterly out of the treasury of the several counties in proportion to the ratio of the population of each to the total population of all the counties comprising the judicial subdivision.</p> <p>2. Where the amount so ascertained is less than $1,000, a judge is entitled, nevertheless, to receive as additional salary $1,000, or if it be more than $3,000, then his additional salary shall be $3,000 and no more, and this shall be paid him quarterly by the several counties in the subdivision in proportion to the ratio above stated.</p>

The plaintiff bank brought suit in the court of of common pleas of Hamilton county to recover $17,616.29 for breach of contract of guaranty. Robert Laidlaw and L. M. Moraques were named as defendants in the petition, but Moraques was not found and the suit proceeded against Laidlaw alone.

The judgment, whose reversal is sought, was rendered in the circuit court on appeal of the cause from the court of common pleas. Suit was brought by James B. Hunter, as trustee, under the will of Geórge W. Smith to obtain the judgment and direction of the court respecting the distribution of a fund in his hands, which was adversely claimed by persons whom he made defendants to the suit.

<p>Presentation by court of written instructions to piry — On matters of law — Section 5190, Revised Statutes — Instructions should not be excessive in repetition — May be prejudicial, when.</p> <p>The right given counsel by the provisions of section 5190, Revised Statutes, to present to the court written instructions on matters of law,'and request that they be given to the jury before argument to the jury is commenced, should be exercised reasonably. The instructions thus requested should be neither excessive in number or length, nor should they be, to an unreasonable degree, repetitions of the same legal proposition. The giving of instructions which offend against either of these objections is an abuse of discretion, and is error which, when clearly prejudicial, will justify a reversal of a judgment obtained by the party thus asking the instructions.</p>

On October 13, 1905, Joseph Worthington made a last will and testament in anticipation of speedy death, for he was then prostrated with'very serious illness. The person who drew the will for him was Martin Redkey. In that will he made certain bequests to charities.

On the 26th day of May, 1894, The New York & Western Coal Co. executed a lease to one Robert Stalter of certain property in Hocking county, Ohio, granting to him “the right and privilege to enter upon and by proper methods search and explore for coal that may be contained in, upon or under said land and to dig, mine and remove the same from said land, and for that purpose to construct, maintain, use and operate all such mines, hoppers, machinery, structures,…

Error *to the Circuit Court of Miami county. The original action was brought by William Hennessey to recover on a policy of insurance issued by the defendant in error, The Ohio Burial Insurance Company, on the 9th day of March, 1909, to William Hennessey on the life of his wife, Mary Hennessey.

This was an action brought in the common pleas court of Darke county by the plaintiff in error to set aside a deed by the defendants, William S. Coblentz, and wife, to the defendant, Isaac Miller, which conveyed certain real estate situate in Darke county.

The action in the common pleas of Butler was by Behm, plaintiff in error, against the Traction Company to recover for injuries alleged to have been caused by the negligent starting of a car from which plaintiff as a passenger was attempting to alight, by which he was thrown to the -ground and seriously injured. The answer, after admitting defendant’s corporate capacity, denied generally and specifically each and every other allegation of the petition.

The defendant in error, The Coshocton Glass Company, is a corporation, and at the time of the issuance of the life insurance policies which are the subject of these actions, Thomas J. Gainor and two others owned the controlling interest in the corporation. Gainor was a man of extensive experience and skill in the glass manufacturing and bottle blowing business; and to him especially all others interested in the company looked for its success.

<p>Exceptions by the Attorney General and Prosecuting Attorney to decisions of the Court of Common Pleas of Franklin county.</p> <p>The case is stated in the opinion.</p>

On the 26th day of January, 1909, some unknown person forwarded by mail to William C. Wottring, county treasurer of Marion county, Ohio, $500 in money, enclosing therewith the following written statement: “Please put the enclosed $500 in the county treasury. Money that don’t really belong to me.

At the January term, 1911, plaintiff in error was indicted by the grand jury in the common pleas of Stark for falsely answering the fourth question enumerated in the act of March 12, 1909, known as the Dean character law, 100 Ohio Laws, 89. A demurrer was filed to the indictment on the ground that it did not state facts sufficient to constitute an offense. The demurrer was overruled, trial was had, ‘and the defendant below found guilty as charged in the indictment.

<p>Terms of bond — Construed to be effective — Rather than defeat the intention — Bond for year to indemnify bank — Against dishonesty of cashier — Continuation of bond for another year — Construed as executed for two years, when — Bank cashier wrongfully extends credit to depositor — Bondsmen liable to bank — Question of notice of liability toAiondsmen — Law of indemniñcation.</p> <p>1. When the terms of a bond clearly indicate the intention of the obligor and obligee that there shall be an indemnity to the latter oh account of the default of an employe, doubtful terms will be so construed as to effectuate rather than to defeat that intention.</p> <p>2. A bond being executed for one year to indemnify a bank against the dishonesty of its cashier occurring during the term of the bond, or any renewal thereof, and discovered within six months of such term, or renewal, and there being a subsequent instrument to continue the former in force for another year according to its terms and conditions, the instruments will be construed as though the bond had been originally executed for two years, there being no terms employed in either instrument to indicate the intention that an act of dishonesty occurring in the first year must be discovered within six months from the expiration of that year.</p> <p>3. When, the cashier of a bank, by a certificate which he knows to be false, extends to one as a depositor of the bank a credit to which he is not entitled, and this is done pursuant to an arrangement that the cashier shall derive financial benefit from the transaction, and loss to the bank results, there arises a liability upon a bond to indemnify the bank for all losses arising “from the fraud or dishonesty of the cashier amounting to embezzlement or larceny.”</p> <p>4. A provision in .a bond of that character requiring the obligee upon the discovery of an act which may create a liability under the instrument to give notice thereof to the obligor at “the earliest practical moment” contemplates such and only such delay as in view of all circumstances may be reasonably necessary for the directors to acquire precise information respecting the default of the cashier and to enable them to determine whether it is of the grave character contemplated by the terms of the bond; and whether the giving of a notice 45 days after the first information of the bailie’s condition is a compliance with the provision should be determined by the jury under proper instructions.</p>

The plaintiffs in error, L. EL and J. C. Elilsinger, were, during the month of September, 1906, and later, engaged in the banking business as a partnership under the name of the Bank of Toronto, in the village of Toronto, Jefferson county, Ohio. The defendant in error, J. A. Trickett, was then a resident of the village of Middleport, Meigs county, Ohio.

<p>Error to Circuit Court of Franklin county.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>Error to Circuit Court of Fayette county.</p>

<p>Error to Circuit Court of Fayette county.</p>

<p>Error to Circuit Court of Fayette county.</p>

<p>Error to Circuit Court of Fayette county.</p>

<p>Error to Circuit Court of Franklin county.</p>

<p>Error to Circuit Court of Lorain county.</p>

<p>Error to Circuit Court of Medina county.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>Error to Circuit Court of Franklin county.</p>

<p>Error to Circuit Court of Summit county.</p>

<p>Error to Circuit Court of Hardin county.</p>

<p>Error to Circuit Court of Wayne county.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>Error to Circuit Court of Clermont county.</p>

<p>Error to Circuit Court of Mahoning county.</p>

<p>Error to Circuit Court of Ross county.</p>