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ing, 80 that the prisoner would
from that time have been
legally detained on a warrant, that
he was guilty of unlawfully im-
prisoning the accused, and that,
therefore, he was guilty of unreason-
able delay, which rendered him
liable to prosecution for unlawful
imprisonment. Raitz v. Green,
In an action for damages for
false imprisonment, defendant is
liable if, as a matter of fact, he did
procure the arrest of plaintiff, who
was arrested at the instigation and
direction of defendant, and was im.
prisoned or deprived of his liberty
by his direction and, under his
procurement; as, in law, the act of
the constable making the arrest
becomes the act of the defendant.
Drinkwater v. Jones.
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. 575.
To constitute forgery of an
order or request for the delivery
of goods or chattels, it is essential
that the instrument must either on
its face be one coming within the
meaning of the statute, or it must
be made, so as to appear by aver.
ments of extrinsic facts in the in.
dictment. Moore v. State. 70.
Where in an indictment for ut.
tering a forged receipt, the instru-
ment set out is not prima facie a
receipt, such extrinsic facts must be
averred as are necessary to show
that the instrument would, if gen.
uine, have the operation and efiect
of a receipt.
An indictment for the forgery
of the following instrument: "J. B.
Vail, 332 West Market street,
Office 125 West Market street:
Please give bearer coat and oblige,
J. B. Vail;” is not, prima facie, an
order or request for the delivery of
goods and chattels within the
meaning of sec. 7091, Rev. Stat.,
and in the absence of averments in
the indictment of extrinsic facts in
aid of the allegation of fraud, and
in explanation of the nature and
character of the instrument, the in.
dictment does not charge the ac-
cused with the commission of a
crime within the meaning of said
If the purchaser of goods has
no reasonable expectation of eing
able to pay for them, such fact is
equivalent to an intention not to
pay. Wilmot v. Lyon & Co. 394.
Payment of money by & gar:
nishee, to one claiming it in lieu of
homestead by a defective affidavit
does not affect the rights of the
parties. Mentel v. McCammon Bros.
GUARDIAN AND WARD
In a proceeding by a wara
against his former guardian for an
accounting after a lapse of twenty
years, during which time the guard.
ian has moved out of the court's
jurisdiction but was served with
a citation or notice to appear, and
failing to appear, judgment was
rendered against him, to which pra-
ceedings the surety on the guardian's
bond had no notice or knowledge:
Held, that the settling of the
guardian's account was not con-
clusive as to the surety and such
judgment is without any binding
effect or force as against the surety
on the bond. Gilbert v. Gilbert. 58.
Where the probate court ex-
amines and approves the account
filed by a guardian this adjudication
is conclusive between the guardian
and his ward, and the judgment of
the court in approving the account
is the end of the controversy.
Lynch v. Cogswell.
When a petition for habeas
corpus for an inmate of an insane
asylum alleges that said inmate is
now sane, the question of sanity or
insanity can not properly be heard
on the application for the writ, but
the writ should issue and this
question be tried on the return of
the writ. Gunning, In re. 443.
Where a husband is left with
his minor children living with him
in the homestead, his wife having
left him, he is entitled to a homstead
exemption the same as if he were
living with his wife, and occupying
the homestead. Weber v. Beier.
Where a person has purposely,
maliciously and with premeditation
committed one great crime against
such conclusion, the indictment is
the person of another, and after-
wards purposely, maliciously and
with premeditation takes the life
of such person with the hope thereby
of covering up his crime and e3-
caping punishment: Held, that
such person will not be deemed un-
able to deliberate on his act, for
the reason that he is laboring under
the excitement naturally brought
conduct. Haas v. State.
An indictment properly re-
turned by the grand jury need not be
signed by the prosecuting attorney.
Even if required and omitted, such
omission would not be sufficient to
authorize a verdict returned on
such indictment to be set aside.
Jones v. State.
An indictment for murder in
the first degree, which alleges that
the act and crime was committed
by all three defendants, there being
no allegation that one of them com.
mitted the act: Held, that it is
not necessary for the indictment to
set out which one of the defendants
fired the fatal shot. It was proper
to allege that all three committed
the unlawful act.
No injunction necessary to hold
property in an application for di-
vorce and alimony, Fletcher v.
In an action founded on a bond
given in an injunction proceeding,
in which the petition shows upon
its face that there was an original
bond, the action being brought on
an additional bond that had been
allowed by the court: Held, that if
there had been any defense made
in showing liability of others not
made parties, it would have been
necessary to at least join the makers
of the original bond with those in
the additional hond; but as that de
fense was not made, and nothing
appears to show that the makers of
one are not the makers of the other,
that objection is not good. Dwelle
Where, in a proceeding in the
common pleas court, in which an
injunction is asked for, and after.
wards an appeal is taken to the
circuit court, the judgment of the
common pleas making the in-
junction perpetual does not put an
end to the liability of the obligors
on the injunction bond, but on the
contrary, when it was in effect
found by the appellate court that
the injunction ought not to have
been granted, a right of action
arose on the bond against the
obligors to recover the damages
sustained by the other party by
such injunction. Williams v. Baker.
The defense of insanity in a
criminal case is a meritorious de
fense when made out, and should
receive tall consideration by the
court and jury. State v. Miller.
Where insanity is interposed to
excuse the taking of human life,
such defense must be established by
a preponderance of the weight of
the evidence, and the burden of
establishing the insanity of the
accused afirmatively to the satis-
faction of the jury rests upon the
Where a person procures
policy of insurance on his life, and
fails to make such fact known to
the beneficiaries, so that immediate
notice of his death could be given,
such negligence on the part of the
insured cannot be imputed to the
administrator, and the company
will not be relieved from liability
on such policy in a suit brought hy
a representative of the deceased.
Am. Accident Co. v. Card. 504.
What is a sufficient compliance
with the conditions of a policy of
accidental insurance requiring im.
mediate notice of the death of the
insured is a question of fact to
be determined by the jury. Ib.
Where the beneficiaries under
such policy do not know of its ex-
istence until some time after the
death of the insured, when it was
accidentally discovered and the com.
pany was then duly notified of the
death of insured: Held, that the
condition of the policy requiring
immediate notice to be given had
been fully complied with.
In establishing the death of the
insured the conditions as to proof
is complied with if affidavits were
fled showing in general the manner
of the death.
Where there is a total loss of
building or structure, an in
surance company is bound under
sec. 3643 Rev. Stat. to pay the full
amount of insurance thereon desig.
nated in its policy, although there
may be other concurrent insurance
by other companies thereon; and a
provision in the policy that the
amount of loss shall be submitted
to and determined by appraisers is
of no binding force. Phoenix Ins.
Ca V. Port Clinton Fish Co. 468
The question whether the loss
was total or partial is for the jury
A loss may be total, although
part of the structure may not be
consumed by the fire.
tained therein, and with intent to
thereby facilitate the escape of such
prisoner, the court charged the jury
that if the defendant gave the ro-
volver to the prisoner with the
intent that he should use it to effect
an escape while he was out of the
jail for temporary purpose in the
custody of the sheriff, and to be
returned to the jail when such tem-
porary purpose was accomplished,
then, while so temporarily out of
the jail he was a prisoner confined
in the jail within the meaning of
the statute, and such intent would
be an intent to facilitate the escape
of a prisoner detained in the jail
within the meaning of the statute.
Held: Not error. Newberry v.
When in a proceeding tried to
the court it appears from the
pleadings and evidence that plain.
tiff is not entitled to any relief,
a judgment for defendant will not
be reversed solely for the reason
that defendant, after plaintiff had
rested his case, was permitted to
give incompetent evidence in his
Own behalf. Cotton V. Ashley.
A Judgment in reference to
which a proceeding in error is pend.
ing should be appraised for taxation
at its true value in money at the
time the owner should have listed
it and not at its nominal value.
Sherard v. Lindsay.
An accord and satisfaction of a
judgment must be to the full
amount of the judgment, and if
anything less is taken it must be
upon a consideration that is paid.
Toledo V. Sanwald,
Where a judgment is recovered
against a city for appropriating
lands for street purposes, and at
terwards the city delivers to the
parties in satisfaction of their
judgments certificates of indebted.
ness, such certificates will not be
held to constitute an accord and
satisfaction of the judgments re-
covered, when they are taken for a
less amount and no consideration
appearing to have been given by the
city to the parties in any manner or
form, whereby, for that consider.
ation they agreed to take such cer.
tificates in satisfaction of their
A court is not open to criticism,
and its judgment will not be re-
versed merely because ito in
structions to the jury are somewhat
general and not SO precise and
specific as counsel on either side
might wish, unless the court is
first requested to be more definite
and precise in its statements, and
declines to do so. Pennsylvania Co.
The rule applicable in a case
in which it is sought to set aside
the judgment on the ground that
it is not supported by evidence, is
whether there is satisfactory eyi-
dence upon whch the finding of the
court may be sustained. If there
is not, it must be reversed or re-
duced, but if there is, it must he
sustained. Commissioners v. Com-
The court having power to
grant leave to file a petition out of
rule, it has power to take up ani
consider it when it is filed out of
rule, without making any order on
that subject, and when it shall have
done so, by rendering judgment;
that judgment wili be conclusive,
unless some method is taken in the
court to set it aside. Parker v.
The common pleas court having
general equity jurisdiction ind
powers independent of the pro-
visions of sec. 5354 Rev. Stat., has
power, in an original action for
that purpose, to cancel or annul a
judgment for fraud practiced by the
successful party. Howenstine v.
Pleading in an action to set
aside a judgment obtained by fraud.
Merger of a judgment. Whit.
taker v. Stone.
Courts will take notice of the
nature of the business and the
office of mercantile agencies. Wil.
mot v. Lyon & Co.
An auditor's deed for lands,
based on a sale made by that of
ficer, carries with it no presumption
as to its validity and effectiveness
in conveying title to the purchaser.
Cook v. Prosser.
The presumption, if there is
any raised, is against the validity
of such conveyance, and a party
asserting the validity and claiming
title under such instrument, has
the burden of showing the regular-
ity and legality of the proceeding
resulting in the sale and convey.
ance, in every minute detail, from
the valuation of the property for
taxation to and including the sale.
The least irregularity, or de-
fect, is fatal and destroys the use-
fulness of the instrument
means of casting title.
Where the city fails to set up
an assessment lien against property
going to a judicial sale, such lien
cannot afterwards be asserted
against the property. Cincinnati v.
Where a person summoned as
a juror in a crminal case states
upon his voir dire that he has
formed an opinion, from reading a
report of the evidence given at a
preliminary hearing, but testified
that he would, if selected, render a
far and impartial verdict according
to the law and evidence, and it
appears that the trial court by ac-
cepting him was of that opinion,
then such juror will be considered
competent to serve. Jones v.
It is only where the accused is
charged before the police court or a
magistrato with offense, the
punishment of which, in whole or
in part, is imprisonment, that he is
there entitled to a jury trial, un-
less the law confers the right upon
him in other cases. Fletcher v.
If a person called as a juror
has formed or expressed an opinion
as to the guilt or innocence of the
accused, he is incompetent to sit
on such trial, unless the other re-
quirements of the statute are com-
plied with, and, if on examination
by the court, as to the grounds of
his opinion he, the juror is able to
say that he believes he will be able
to render an impartial verdict, not-
withstanding his present opinion,
and convinces the court of that fact
he may be competent. Limerick v.
LANDLORD AND TENANT
Where the lessee in leasing
premises and before execution of a
written lease has an oral under-
standing with his lessor that he is
to receive a rebate on his rent at
the end of the year: Held, that
the whole contract
into the written one, and it was
error for the court to admit testi-
mony to show that there should be
a rebate by virtue of some oral ar-