« PreviousContinue »
Under the facts of this case it
was error to instruct the jury to
find whether there had been a conflict
between defendant and prosecuting
witness, “and if so, who was the
.aggressor or the first to make a
malicious assault in the conflict”
and that they must be satisfied from a
preponderance of the evidence that
the prosecuting witness "first made
a malicious assault upon defendant,
and that defendant did the shooting
while endeavoring to defend himself
against that malicious assault"
without defining what was meant by
the word assault.
Where proof of the presence of
defendant at the time and place of
the commission of an offense, is
requisite to sustain a conviction, a
charge to the jury, which in terms
or by implication, puts upon the
defendant the burden of showing
that he was not present at such
time and place, is misleading and
erroneous. Gawn v. State. 19.
It is also error, in such case, to
charge the jury that an alibi is a
defense set up by the defendant,
which can only be satisfactorily
maintained by proof which renders
it impossible that he could have
committed the act.
In an action for injuries caused
by the negligence of a city, it is not
error for the court to refuse to
charge the jury to the effect that
the city owes no duty to persons
who, thoughtlessly, or without the
use of proper precaution for their
own safety, expose themselves to
manifest perils, or who by the use
of ordinary and reasonable care,
might avoid injury to themselves.
Toledo v. Higgins.
A charge to the jury in a crim-
inal case which directly or infer-
entially assumes that doubts as to
the guilt of defendant are prima
facie unreasonable, and by which
the jurors are cautioned and directed
not to respect such doubts until an
ineffectual effort has been made by
them to divest their minds of the
same, is erroneous. Rose V. State.
Where the court in charging the
jury regarding expert evidence on
the question of insanity, told the
jury to receive such evidence with
and this admonition
occurred twice in this branch of the
charge: Held, that the instruction
of the court applied to both sides
and that the character of the evi.
dence pro and con, furnished good
reasons for the caution, and there
fore the court committed no error.
State y, Miller.
A party asking the court to give
a charge which is correct as to the
law, and pertinent to the case, is
entitled to have such charge given,
and, therefore, in an action for dam-
ages for personal injuries, a general
statement as to the law and the
care to be exercised will not excuse
the failure of the court to give such
charge as requested. C. C. & I. Ry.
Co. v. Reiss.
In an action by the father of a
minor son, who had been employed
as brakeman by a railroad and re-
ceived an injury in the course or
his employment, on the ground that
the company had acted negligently
in employing such minor without
the consent of his father: Held,
that it was error for the court to
refuse to charge the jury that if
plaintiff did tell the company's
agent not to employ his son as
brakeman, without saying anything
about his age except that he was a
minor, and further that defendant
did so employ him while a minor,
he, plaintiff, cannot recover if de.
fendant did believe that he was of
age when they employed him, and
also had good reason to believe that
he had obtained his majority from
his appearance, conduct and state.
ments. P. C. C. & St. L. R. R. Co.
It was also error for the court
to refuse to charge the jury, that,
"in any aspect of the case, the
defendant was not required as
matter of law to inquire of plain-
tiff whether his son had reached
Charge as to what constitutes
premeditation and deliberation in
homicide. Early v. State. 592.
When a person receives a chattel
mortgage with full knowledge of a
prior mortgage, and such mortgages
are duly filed, but are afterwards
rendered void as to the assignee and
creditors for failure of renewal:
Held, that neither of the mortgagees
took anything whatever from the
estate by virtue of their mortgage.
But each of them, as a general
creditor, had a vested claim against
the assignors, and as such, was en:
titled to a dividend on his claim. In
re assignment of Wilson's Sons &
Where a manufacturing corpo
ration borrows money from a bank
and executes to the bank its prom-
issory note for the amount borrowed,
which note was executed by the
president and secretary of such
corporation in their official capacity,
and later the corporation by its pres.
ident and secretary, and under the
seal of the corporation, executes to
the bank a chattel mortgage upon its,
property to secure a new note for
the amount of its entire indebted.
ness to the bank, such mortgage is
valid and not given in fraud of
creditors, and cannot be set aside by
the general creditors, but the bank
shall be entitled to the money real.
ize on it. Bosche v. Toledo Dis.
play Horse Co.
Where a tax levied for a certain
improvement was all paid without
a single protest from any one, a
taxpayer will not be allowed to
come into court at this late date,
claiming that the act under which
the tax was levied was unconstit11.
tional. State v. Bader.
Where a party wishes to test the
constitutionality of a certain act, he
should commence his action before
the tax provided for by the act was
levied and collected, and before those
who were compelled or authorized
to act under it had acted.
The act passed April 21, 1896,
(92 O. L., 567), entitled "An act
relating to the duties and compensa-
tion of xertain county officers and
their assistants in Miami county,"
is an act of a general nature, limited
in its operation to Miami county, and
is therefore void under art. 2, sec
26, which requires all laws of a
general nature to have a uniform
operation throughout the state.
Pearson v. Stephens.
Section 2759b, Rev. Stat., regiz.
lating returns for taxation of say:
ings societies, incorporated under
the act of April 16, 1867, is not re.
pugnant to either sec. 2, or sec. ?,
of art 12, of the constitution. Collett,
Treasurer, v. Savings Society. 146.
A statute which authorizes a
penalty by fine only upon a sum-
mary conviction under police
regulation, although imprisonment
as a means of enforcing payment of
the fine is authorized, is not in
conflict with either sec. 5 or 10 of
art. 1, of the constitution. Fletcher
error while on a trip from Youngs.
town, O., to Pittsburg, Pan, under
contract between the United States
and the company, made at Washing.
ton, D. C., who was injured in a
collisio in the latter named state,
caused by negligence of the con-
ductor of the colliding train, cannot
recover therefor, when by the statute
and law of such state an employee
of a railway company cannot recover
of such company
caused by the negligence of a fellow
servant, and postal clerks, are re.
garded as employees of the com-
pany on its cars, and as fellow-
servants of conductors of trains, and
entitled only to the same rights
against the company as an employee
in case of injury while on duty.
Railroad v. Bishop.
Breach of contract for employ.
ment for a fixed period at a fixed
sum, by either party will entitle the
other who had been without fault
to recover the actual damages flow-
ing from and directly caused by
said breach. Snyder v. Walker.
In an action for wages upon a
contract of employment defendant
may not only plead the breach of
the contract by way of defense to
the plaintiff's claim, but can go
further, and by cross-petition may
recover such damages as he may
show he sustained in consequence of
such breach, within the limit that
such damage must be referable to
the breach and flow directly
The vendor of a bakery who
agreed not to go into business again
within four squares of the old
stand, may be enjoined from carry.
ing on such a business in his wife's
name a few feet more than four
squares distant. Peterson v. Schmidt.
Where a contract for the de
livery of glass states that the glass
is to be delivered f. 0. b. at Cleve-
land, this language means that the
glass is to be delivered in Clevelani,
and the law applicable to such a
contract requires the seller to
deliver to the purchaser at Cleve-
land good merchantable glass, both
as to quality and as to condition.
Tillyer et al. v. Glass Co. 209.
If a contract, in its terms, is
definite and certain, custom cannot
be introduced to explain what needs
An agreement whereby a son
placed into the hands of his mother
7 Dec. 47
a sum of money, with the agreement
that she should use it as she might
need, during her life, and that upon
her death, it, or such part of it as
should remain unexpended, should
be paid back to the son, is not
within the statute of frauds, and
need not be in writing. Westropp
A contract for the purchase of
goods on credit, made with the
intent on the part of the purchaser
not to pay for them, is fraudulent.
Wilmot v. Lyon & Co.
In the case of a contract for
personal services, and a wrongful
discharge before the work CON-
tracted for is completed, he is en-
titled to recover damages for a
breach of the contract; but he is
not allowed to remain idle for the
whole or the residue of the time and
recover the contract price. St.
Bernard v. Reig & Marty. 539.
While courts will correct errors,
made by mutual mistakes, as be-
tween the parties to a contract,
such correction cannot be allowed
where it will injuriously affect the
rights of other parties, which have
subsequently accrued. Goldsmith
Where, upon the assignment of
a contract for a street improvement,
partly completed, the assignee
agreed to pay to a trustee a certain
sum for work already performed, in
consideration of which agreement
liens were released, the assignee will
be required to pay to the former
lienholders the full amount of their
liens, although it is discovered that
the arbiter, selected to estimate the
value of work done, made
Where stipulations and condi-
tions of an agreement constitute an
entire contract, the burden of show
ing that one provision thereof be-
came severed, so as to become inde.
pendent and personal, rests on the
party asserting such claim. Hall v.
CONVEYANCE OF REAL ESTATE--
Where a father conveys and
leases certain real estate to his son
in consideration for which the son
was to care for, and support his
father during his natural life, such
transactions will be allowed to
stand where the evidence shows that
the transactions by which the lands
were conveyed were not invalid by
reason of want of capacity on the
part of the grantor to make them,
was prosecuted for its own interests
Such action not being bona fide for
the benefit and interest of stock.
holders whom plaintiffs claim to
represent, a court of equity will
not enjoin the defendant company,
a competitor, from managing its
business according to its own judg.
ment. Kuhn et al. v. The Woolson
Spice Co. et al.
Where a person, acting as
director in a corporation, is after.
ward elected as its treasurer, and
while thus serving he has
express contract with the company
at the time of his election that he
was to be paid for his services,
such facts would not preclude him
from recovering for the fair and
reasonable value of his services, it
they were valuable and were ren.
dered under such circumstances as
showed that he was to be COM
pensated therefor. Dalton v. Brust.
Electric Light Co.
Persons dealing with officers of
a corporation are only bound to
know the legal power of the cor-
poration to perform acts; they are
not required to know that all the
formalities required of the different
officers in the performance of their
duties have been observed. Bosche
v. Toledo Display Horse Co. 374.
A corporation in Ohio has a
right to borrow money to pay its
debts and to run its business, and it
has a right to give a mortgage upon
all the property it possesses to se
cure that loan.
A corporation created by the
laws of Ohio can forfeit its franchise
and cease to be a de jure corporation
only for the causes and in the man.
ner as provided for in secs. 6761 to
6793, inclusive. Lattimer v. Glass
Until a corporation has been
legally dissolved in the manner pro-
vided by law, its contracts, obliga-
tions and liabilities must be taken
and held to be binding upon it, and
those who deal with it, to the same
extent and upon the same principle
that the same official acts of a de
facto officer are, though he holds no
de jure right to the office.
At common law, costs were not
recoverable, eo nomine, either in
civil actions or criminal prosecu-
tions; hence their recovery in any
case depends wholly upon statutory
provisions therefor. State ex rel. v.
The word "costs" has long had
a legal signification, and in Ohio
it covers only those expenditures in
a suit which by law are taxable, and
to be included in the judgment
Under the law of this state, the
fees of persons summoned as jurors
in criminal cases, whether used on
the trial or discharged, are not tax-
able as costs against a party con-
victed of an offense.
When it is made clearly to
appear to the county auditor that a
fine or amercement cannot be col-
lected by imprisonment, he may
discharge from imprisonment any
person who is confined in the
county jail for non-payment of such
fine or amercement. In re Moore.
Section 1628, which empowers
the county auditor to discharge
certain prisoners confined in the
county jail is not mandatory upon
The claim of a county auditor
for compensation for recording ditch
and road proceedings, as well as for
other services required by law, must
be presented for allowance to the
commissioners, and be allowed by
them, before he is authorized to
draw his warrant for the same on
the county treasury. Reidenour v.
If the claim is disallowed in
whole or in part his only remedy is
by appeal to the court of common
Where such claims have been
allowed by the commissioners and
their allowance spread upon the
minutes of the board, an action upon
the official bond of the auditor, to
recover back as illegal and exces.
sive, parts of the bills so allowed,
will not lie, so long as the record
of such allowance is not impeached
for fraud or collusion-such allow-
ance being in the nature of a judi.
No compensation ts provided or
authorized to be paid by the county
for making and continuing indexes
to pending suits and judgments, and
therefore the clerk making such
index is not entitled to recover com.
pensation for such services. Clark
Fees of probate judge for enter
ing and indexing cases 0 tho
court calendar; recording and index:
ing cost bills and for making and
indexing entries in the cash book.
Millard v. Board of Com.
When a court by mistake or
inadvertence adjourned its term to
a legal holiday-such term does not
therefore lapse or come to an end,
but the court, on such holiday, may
legally adjourn to the following
day, at which it may legally proceed
with the transaction of its business.
Jones V. State.
There is no constitutional ob-
jection to the conferring by the
legislature upon the police court of
a city, jurisdiction to hear and de.
termine the question of the guilt or
innocence of a person charged with
the commission of an offense
against the state, outside of the
limits of the city. Fletcher v. State.
Circuit court has power to re-
view judgment of mayor to con-
viction for violation of an ordinance.
Flatau v. Mansfield.
Reviewing court will fail to dis-
turb mayor's finding on the weight
of evidence where statute fails to
define a temporary dealer.
Where one receives a consign-
ment of glass and does not make
any complaint regarding its quality
or condition until some time after
it was received, and it was then
claimed by the vendor that there
was a waiver of any defect that
might exist in the glass. To rebut
this inference of waiver, the vendee
may give evidence that there was a
custom on the part of buyers of
glass to stock up in summer and
store the glass in a warehouse, and
that for this reason the vendee did
not inspect his glass as soon as he
would have done if the glass was to
have been sold at once. Tillger et
al. v. Glass Co.
Custom is a species of hearsay
testimony and in its most extended
sense means a rule of action which
extends back beyond the recollection
of living witnesses, and is in this
sense put upon the same basis 28
hearsay testimony in regard to
other ancient matters that have
their beginning beyond the recollec-
tions of living witnesses.
Custom as applied to contracts
pertains only to explaining what
parties meant by a contract where
* is left uncertain by them. No.