APPEALS

An action pending in the superior court of Cincinnati, on and before November 1, 1893, and in which a judgment was entered on June 20, 1894, ten days before the law of May 16, 1894, took effect, cannot properly be appealed to the circuit court, and a motion to dismiss such appeal will be sustained and the case stricken from the docket. Thompson v. Building Assn. 68.

Where an appeal has been perfected, and the court has acquired jurisdiction of the parties, but no pleadings having been filed within the rule days for filing pleadings in such cases, the defendant may either move to dismiss the appeal or file his answer, asking for judgment upon the answer, for failure of plaintiff to file his petition. Parker v. Haight. 609. A petition on appeal may be amended. Bausch v. McConnel.

547.

An appeal bond from the probate court to "the appellate court" is vacated when the judgment which follows in the common pleas is reversed and a different judgment rendered by the circuit court. Miller v. Ryan. 319. APPROPRIATION OF PROPERTY

Where a railroad has taken possession of land for its right of way without the owner's consent, such property belongs to the owner up to the time he tenders the deed, and, if, at the time of tendering the deed, he elected to hold the company for the land and receive for it the compensation due him for its value, his cause of action arose by that election, and he had the right to bring and maintain his suit, and damages should be awarded of the date when the title of property passed, that is, for the value of the land to the owner at that time. & L. E. Ry. Co. v. Fries et al. 297. In such case it is error to allow testimony to be offered as to the value of the land when the railroad went into possession, in that it was offered and directed to a point of time prior to the time when the cause of action accrued. Such testimony should have been confined to the time when the deed was delivered. Ib.

W.

It is error to refuse to charge the jury that in such case plaintiff is not entitled to recover damages to land not taken by the railroad, but

is restricted to compensation for Ib. land taken.

In determining the market value of lands sought to be appropriated by a city for water-works, the jury are precluded from considering its enhanced value, from the fact that it was adapted for a reservoir, which was the very purpose for which it was being appropriated, and the jury is not permitted to make any use of the fact that such lands may have increased in value by the proposal or construction of the work for which it is to be taken. Gibson v. Norwalk. 6.

When a municipal corporation seeks to appropriate private property under sec. 2235, Rev. Stat., as amended (91 O. L., 127), the mortgagees of such property are not necessary parties to be notified of the resolution before the passage of the same. Put-in-Bay v. Stimmel.

380.

Where plaintiff, a municipal corporation, seeks to enjoin a party from cutting trees on certain lands, which plaintiff alleges in its petition it has commenced proceedings to appropriate, and defendant answered denying the allegations in the petition and also sets up a crosspetition asking for a counter injunction enjoining plaintiffs from prosecuting their aforesaid appropriation proceedings: Held, that defendants could not maintain a cross-petition enjoining plaintiff from prosecuting another suit in the same court for any reasons or grounds which might have been set up as a defense to the appropriation proceedings. Put-in-Bay v. Webb et 478.

al.

of ordinary prudence to believe in the guilt of the person arrested, and if the facts show that to be the case, then there is probable cause for arrest. Britton v. Granger. 182.

Where an officer finds one violating a law or ordinance, and then and there arrests him, and thereafter files an affidavit charging him with the offense he was found committing, the prosecution begins with the filing of the affidavit and not with the arrest. If such officer, before making the affidavit, takes the advice of an attorney-at-law, upon full and fair disclosure of the facts and follows his advice in making an affidavit, and prosecuting the person SO charged, the officer is entitled to the benefit of such consultation and advice, in determining whether he had reasonable or probable cause for the prosecution.

Ib.

Where an affidavit charging a person with the commission of a crime, describes the accused by initials merely, and a warrant is issued upon such affidavit, such warrant is not void for that reason, the same being regular in form in all respects to constitute it a valid warrant for the arrest of the accused and the officer having such warrant to execute is clothed with the authority to make the arrest. State v. Miller. 552.

In attempting the arrest of one accused with the commission of a crime, who is found expecting the officer and is armed with deadly weapons to resist the arrest, it is the right of such officer to use necessary strategy to disarm the accused before producing the warrant.

ASSESSMENTS—

Ib.

Where an owner of premises abutting upon a street leases them with the provision that the lessee, in addition to annual rental, is to pay all taxes and improvement assessments, and the street is afterwards paved when a street railway secures a franchise in said street,

and in return agrees to repay the assessments that were made for paving, such money belongs and should be paid to the property owner. Harkness v. Schiely. 108.

The street assessment on a triangular corner lot should not exceed its greatest breadthwise frontage. Thompkins et al. v. Village of Norwood. 416.

An assessment for paving a street and for building a side walk adjoining the lot is an assessment for two separate improvements, and there being no statute limiting the amount of an assessment, or percentage of an assessment for two different improvements, such as the above, therefore, there is no limitation which will render either invalid because the sum of the two shall exceed twenty-five per cent. of the value of the lot. Hunt v. Hunter. 495.

The twenty-five per cent. limitation, as found in sec. 2271, applies to the construction of sidewalks, and, therefore, where a sidewalk is constructed and an assessment is levied, such assessment shall not exceed twenty-five per cent. of the value of such lot at the time the sidewalk was built.

Ib.

ATTACHMENT-

The claim for damages in an
action for breach of a contract of
marriage, is a debt on demand aris
ing upon contract, within the mean-
ing of sec. 5521, Rev. Stat., and
plaintiff may have an attachment on
the ground that defendant is a non.
resident. Albert v. Armstrong.

705.
Refusal of a justice to discharge
an attachment cannot be reviewed
on error when there was no excep-
tion to such ruling and no bill of
exceptions taken, setting out the evi-
dence submitted. Bradley v.
Wacker.
565.

It is error for a justice for
failing to discharge an attachment,
where the only evidence was the affi-
davit of plaintiff averring the
grounds of attachment, and defend-
ant's affidavit denying those aver-
ments. In such case the burden of
proof is on plaintiff to prove by
other evidence that his affidavit is
true.
Ib.

Where an attachment has been
granted against an unmarried man,
his subsequent marriage will not
affect the vested rights of plaintiff,
nor will the attachment be dissolved
on these grounds.

Ib.

shown a disposition to have sexual
intercourse, was properly excluded:
First, because of the remoteness of
the time. Second, because evidence
of mere opportunities without evi-
dence of disposition also to commit
such acts was immaterial. Ely v
Ott.
677.

Reviewing court is not author-
ized to disturb the judgment of the
trial court on the ground that the
judgment required to be paid by the
reputed father for the mainte-

nance of the bastard child is exces
sive, unless it shall appear that
there has been an abuse of the dis-
cretion vested in said trial court,
and in this case the court refuses to
disturb a judgment of $1,300.
Ib.
BILL OF EXCEPTIONS-

The failure of a justice to
transmit a bill of exceptions to the
clerk of the common pleas within
ten days from its allowance, is not
ground for striking such bill from
the files. Borsodi v. State.

31

A bill of exceptions must be in
the hands of opposite counsel on or
before the fortieth day after the
overruling of the motion for a new
trial, and in the hands of the judge
for his allowance on or before the
forty-fifth day after the overruling
of such motion. Dwelle v. Wilson.
610.

There is no provision for taking
a bill of exceptions to a matter con
sidered alone by the judge, therefore,
it is impossible to take a bill of
exceptions to the consideration by
the judge of the question as to
whether he shall sign another bill
of exceptions, consisting of facts
Ib.
occurring in a trial in court.
BILLS AND NOTES-

No action can be maintained
against the maker of a promissory
note, which is barred by the statute
of limitations, on a verbal promise
to pay, made after the bar had arisen
the consideration of the promise
being the original and valid debt.
Stephenson v. Line.

35.

Where a person draws a number
of bills and endorses a number of
notes, signing his own name thereto,
with the word "agent" added, such
person is personally liable upon
such bills and notes. Barnhisel v.
Bank.
535.

Where a note on its face is
barred by the statute of limitations,
and a payment endorsed thereon is
relied upon to bring it within the
exception provided by sec. 4292, the

Under sec. 6830, there are two
ways by which the crime of black-
mail may be committed. One is to
accuse of a crime, punishable by law,
or of immoral conduct, etc., with in-
tent to extort or gain chattel, money
or valuable security. The other, to
knowingly send or deliver any letter
or writing, or a matter of printed
communication with or without a
name, or with any letter, mark or
designation, accusing or threatening
to accuse of any crime punishable
by law, etc., or to do injury to the
person or property of any person,
with the intent above stated. Jones
v. State.
716.
An affidavit filed with a mayor,
charging a person with having com-
Imitted the crime of murder, with
the intent thereby to secure chattel,
money or valuable security, is suffi-
cient to sustain an indictment under
sec. 6830.
lb.

It is not necessary, in such in
dictment based on the filing of an
affidavit with the mayor, accusing a
person of committing a crime, to
allege or set forth the warrant or its
service.
Ib.

Proof that the warrant issued
on an affidavit, charging a person
with the crime of murder, was com-
municated to accused, or sent or
delivered with the purpose of having
it communicated to accused, under
circumstances which rendered it
probable that the same would be so
communicated, with intent alleged
to the indictment, will not justify
conviction of the crime of black-
mail and it is error in the court to
charge that this proof, upon failure to
prove the filing of the affidavit, will
warrant conviction.

Ib.

Where certain lands have been
platted in lots which the owner con-
veys by lot numbers, it matters not
whether their boundary lines are
correct or whether he gave entirely
wrong lengths to all of them, as
the intent is manifest to convey all
the land, which intent cannot be
overcome by any theory that may
be subsequently discovered. Ib.

If there is a shortage on a plat
in which the owner intended to plat
all his property, it is the well set-
tled rule, in this state, that such
shortage will be divided as near as
possible pro rata between the owners
of the whole.
Ib.

CARRIERS-

Where a person purchasing a
ticket from a railroad company enti
tling the purchaser to be carried
from one station to another on the
line of its road, and the purchaser,
after having inquired of the ticket
agent, is told to take a certain train,
which, according to the schedule of
the railroad company, does not stop
at his destination, and as a conse-
quence he is ejected from the train

CARRIERS-Con.-

by the conductor, such passenger
has a cause of action against the
railway to recover damages as for
a tort, and not merely for a breach
of contract. Reynolds v. Railway
Co.
501.

The contract of a common
carrier is not that he will ascertain
the owner of goods, and deliver them
to him, but he will deliver the goods
according to directions; that is, at
the place of destination, and to the
party designated to receive them or
to his order. Southern Ex. Co. v.
Oskamp, Nolting & Co.
417.

Where two men of like name
live in the same town, and one
orders goods from a dealer, who
ships them in the common name,
simply; in the absence of notice to
the contrary, the party giving the
order is, in contemplation of law,
the one to whom they are sent. Conse-
quently, delivery to him will be a due
execution in that particular of the
contract of carriage, although the
consignor believed the order was
from, and intended the goods to go
to the other man.
Ib.

The result is not varied by the
circumstance that the purchaser
fraudulently assumed the name
used in buying, provided it is that
by which he was known at the place
of destination, unless negligence be
shown; and this, the mere fact that
delivery was not refused by the
carrier, until inquiry could be made
of the shipper as to which party the
goods were designed for, fails to
establish.
Ib.
CEMETERIES-

Brothers and sisters are the
next of kin, under the act of May,
1894 (91 O. L., 231), providing for
the removal of bodies from ceme-
teries, but where they are minors,
the parents are next of kin and en-
titled to make the application. State
v. Shonhoft.
716.

CHARGE OF COURT-

It is not error for a court to
refuse to send its charge to the
jury, where there was no request
made of the court to reduce it to
writing, though it had voluntarily
reduced it to writing, therefore the
parties were not entitled to demand,
as of right, that the charge should
be sent to the jury, along with the
papers in the case. Railroad v.
Bishop.
73.

The warranty in a contract for
the sale of glass survives the
acceptance of the goods, and it is,

therefore, error for the court to
charge that if the goods were re
ceived and used after the purchaser
saw, or had an opportunity to see
and know their condition, that he
could not afterwards be heard to
complain and recover damages of
the vendor because the glass was not
of the quality called for by the
contract. Tillyer et al. v. Glass Co.
209.

In an action for damages, in-
cluding physician's fees, for injuries
sustained by plaintiff, a married
woman, it is error to charge the
jury that plaintiff's right to recover
such fees depended upon the fact
"whether she herself is or is not
liable to pay these expenses." Toledɔ
v. Duffy.
113.

Such fees cannot be recovered
where the evidence clearly shows
that there was no employment by
plaintiff of the physician, but that
instead the husband was clearly
liable and it was therefore the
duty of the court to have directed
the jury that the fees for the
physician's services could not be
recovered by the plaintiff in this
case as against the city.

Ib.

Where defendant, charged with
shooting another with intent to
kill, pleads a justification on the
ground of self-defense, it is error to
charge that the person who assaulted
him must have come at him "malici
ously and with every manifestation
of endeavoring to kill the person
assaulted, and that he was prepared
and manifested the fact that he was
able to carry out his malicious
assault. It is only under such cir
cumstances that the person assaulted
may use the force necessary, without
retreating," to kill the assailant.
Jordan v. State.
123.

That the jury must be satisfied
from a preponderance of the evi
dence that the defendant "used no
more force than was necessary to
repel the assailant," or than "was
reasonably necessary to save his life,
or his person from great bodily
harm."

Ib.