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. Ib.
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. Ib.
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. 29.
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. 226.
Where the court in charging the jury regarding expert evidence on the question of insanity, told the jury to receive such evidence with caution, 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 v. Miller. 552.
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. 450.
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 of 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. v. McLaughlin. 654:
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 his majority." Ib.
Charge as to what constitutes premeditation and deliberation in homicide. Early v. State. 592. CHATTEL MORTGAGES-
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 & Co. 459.
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- ized on it. Bosche v. Toledo Dis play Horse Co. 374.
CONSTITUTIONAL LAW—
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 unconstitn- tional. State v. Bader.
The act passed April 21, 1896, (92 O. L., 567), entitled "An act relating to the duties and compensa- tion of zertain 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. 122.
Section 2759b, Rev. Stat., regu lating returns for taxation of sav- 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 a 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 v. State. 316.
The act of the general assem- bly, passed April 27, 1896 (92 O. L., 748), is unconstitutional and void. State ex rel. v. Fangboner. 334.
Act of March 25, 1890 (80 0. L., 100), authorizing the council to license transient dealers is illegal and void. Flatau v. Mansfield. 29. CONTEMPT OF COURT—
When the transactions consti- tuting an alleged contempt of court are not within the personal cogniz. ance of the court, the better practice would be to require an information to be filed by a proper representative of the state, and permit the accused to file an answer to the charge made against him in such information. Post v. State.
In such prosecution, the fullest opportunity should be given the ac- cused to show cause why he should not be punished for contempt, and his guilt should not be determined before such opportunity is given him. Ib.
The accused is entitled to show that the facts referred to or recited in the article alleged to be contemp- tuous, occurred as therein stated. Tb.
The accused in an endeavor to show why he should not be punished for contempt, has the right to show, if he can, that the article published was not in law contemptuous, and a refusal to hear counsel on that proposition is error. Ib.
Newspaper comments though libelous, having relation to proceed- ings of a court which are wholly past and ended, are not in contempt of court nor the authority of the court to which reference is made. Ib.
The legal effect of contracts, and the rights of parties and privies thereto are governed by the law of the place of the contract, and the supreme court of the United States, having decided that railway postal clerks are not entitled to be consid ered as, and are not vested with the rights of passengers thereon, by virtue of the contract between the railway company and the United States, and the provisions of the statute of the United States in regard thereto, for carrying mails and postal clerks, and are not, therefore, deprived of such rights by force of the statute of a state, under which such clerks are con. sidered as, and entitled only to the rights of an employee of a railway company, in case of being injured while on duty on its train, a postal clerk, resident of Ohio, in charge of the mail on a train of plaintiff in
error while on a trip from Youngs town, O., to Pittsburg, Pa., under contract between the United States and the company, made at Washing. ton, D. C., who was injured in a collision 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 for an injury 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. 73.
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 therefrom. Ib.
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. o. b. at Cleve- land, this language means that the glass is to be delivered in Cleveland, 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 no explanation. Ib.
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 v. Westropp. 14.
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. 394.
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. 539. Bernard v. Reig & Marty.
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 Goldsmith subsequently accrued. v. Cincinnati.
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 ä material mistake. Ib.
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. Geyer. 436. 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,
Where one conveys land ad- joining a navigable river of this state and the land in fact bounds and abuts upon the water which flows in front of the premises and conveys by a conveyance which does not except or reserve the land in front of the premises, although they with boundary may be marked
lines, the grantee takes to the center of the navigable stream, that is to the center of the current. Head v. Chesbrough. 176.
CORPORATIONS-
Persons dealing with bodies, boards or corporations having lim ited powers or jurisdiction, are bound to know the extent of such power or authority, and cannot plead a want of knowledge on their part as a remedy for any injury they might receive. Kerr v. Village of Bellefontaine. 93.
Α manufacturing corporation may lawfully become a member of a loan company for the purpose of borrowing money; but if it did not have that power expressly or by law, still, having received the benefits of a loan, and having contracted to pay it back and that it should be a lien upon its property, that contract a court of equity will execute, and will not listen to the plea of the corporation, much less that of another general creditor, that it originally had no power to borrow. Norwalk Savings Bank Co. v. Norwalk Metal Spinning and Stamping Co. 275.
Plaintiffs, owners of a profitable business, being also owners of a number of shares in defendant com. pany, a rival concern, seek to enjoin it from managing its business ac- cording to its judgment, and from selling its product at such price as to entail a loss upon defendant company and its shareholders: Held, that the interest of plaintiffs in asking for an injunction though owners of stock in defendant com- pany, was plainly not in preserving the value of defendant's stock, but
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. 289.
Where a person, acting as director in a corporation, is after- ward elected as its treasurer, and while thus has serving he 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, if they were valuable and were ren- dered under such circumstances as showed that he was to be com- pensated therefor. Dalton v. Brust 141. 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. Ib.
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 Co. 430.
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. Ib. COSTS-
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. Commissioners. 351.
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 therein. Ib.
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. Ib. COUNTY AUDITOR-
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 who is confined in person the county jail for non-payment of such fine or amercement. In re Moore. 575. Section 1628, which empowers the county auditor to discharge in the certain prisoners confined county jail is not mandatory upon him. Ib
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. State. 431.
If the claim is disallowed in whole or in part his only remedy is by appeal to the court of common Ib. pleas.
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- cial act.
COUNTY CLERK-
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. 305
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. 316.
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. Ib. CUSTOM-
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. Tillyer et al. v. Glass Co. 209.
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 as hearsay testimony in regard to other ancient matters that have their beginning beyond the recollec- tions of living witnesses.
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