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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,

238.
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.

173.
FINES-

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.
FORGERY-

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.

Ib.
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
statute.

Ib.
FRAUD—

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.
GARNISHMENT-

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.

320.
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.
HABEAS CORPUS-

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.
HOMESTEAD-

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.

381.
HOMICIDE-

Where a person has purposely,
maliciously and with premeditation
committed one great crime against

12.

such conclusion, the indictment is

bad.

Ib.

HOMICIDE Con-

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
about by

bis

Own unprovoked
conduct. Haas v. State.

509.
Charge of court as to what con.
stitutes premeditation and deliber-
ation. Early v. State.

592.
INDICTMENT-

It is not necessary, in an ir-
dictment for blackmail, based on
the filing of an affidavit with the
mayor, accusing a person of com-
mitting a crime, to allege or set
forth the warrant or its service.
Jones v. State.

715.
A demurrer to such indictment
is a waiver of such an objection as
that it charged different, distinct
and repugnant crimes, and was bad
for duplicity; such irregularity can
only be reached by motion to quash.

Ib.

An error in overruling a motion
to quash such indictment, filed by
one of several defendants, jointly
indicted, is not available to other
defendants; they must join in the
motion or file one in their own
behalf.

Ib.

.
In criminal procedure at
common law, if a party is indicted
by any other than his true name he
may for plea in abatement of the
action, say it is not his true name
that there is a misnomer in the in-
dictment; but he must first give in
such plea his true name. State V.
Miller.

552.
An indictment under subdi-
vision three of sec. 2926w, for
falsely and fraudulently obtaining
registration, which alleges that de-
fendant represented to the regis-
trars that he was a qualified elector
of precinct “A” of the Third Ward
in the city of Findlay, Ohio, and
that he did then and thereby falsely,
fraudulently and unlawfully obtain
registration, as an elector in said
precinct, is bad on demurrer. Eb-
benpowell v. State.

572.
That part of an indictment
wherein the grand jury makes its
general finding as to the guilt of
the accused, is simply a conclusion,
and if it is not preceded by sufficient
averment of the facts to sustain

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.

305.
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.

Ib.
INJUNCTION-

No injunction necessary to hold
property in an application for di-
vorce and alimony, Fletcher v.
Fletcher.

605.
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
V. Wilson.

611.
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.

515
INSANE-

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.

552.
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
defense.

Ib.
INSURANCE, ACCIDENT-

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.

Ih.
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.

Ib.
INSURANCE, FIRE

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
to determine.

Ih.
A loss may be total, although
part of the structure may not be
consumed by the fire.

Th.

INTERPLEADER

Where plaintiff in erecting a
building has a contract with the
builder which provides that the
latter must pay all the claims for
labor and material in the CON-
struction of the building, and it
appears that the contractor exe-
cuted two orders to the L. Bros.,
on the building fund still unpaid,
and also an order to R., who re-
ceived his order in connection with
a verbal order before the L, Bros.
reoeived their orders, and both
claims being presented for payment,
plaintiff filed a bill of interpleaner
to ascertain how the balance of the
building fund remaining unpaid
was to be distributed: Held, first,
that the costs in this court, together
with costs incurred by plaintiff in
the common pleas in bringing the
parties into court, are to be paid;
second, the claim of R. should be
paid; third, so much of the money
as is left, should be applied upon
the orders of L. Bros. so far as it
will go. C. K. of A. Hall Co. v. The
Lloyd Bros. Co. et al.

203.
INTOXICATING LIQUORS-

The filing of a notice as pro
vided for in sec. 4358, Rev. Stat.
warning saloon keepers not to sell
any intoxicating liquors to the
person

named in such notice,
permits the jury, in an action by a
wife against the owner of a saloon
for selling intoxicating liquors to
her husband, to give, in the way of
damages, exemplary damages if the
party selling intoxicating liquorg
sold the same, after the notice was
filed, to one in the habit of getting
drunk. Kear V. Garrison. 515.

The written notice as provided
for in sec. 4358 Rev. Stat. is suf-
ficient as to the dealer or seller of
intoxicating liquors, but so far as
the lessor of the property is con-
cerned he must have actual notice,
but no actual notice need be given
to the seller; therefore, even if the
owner of the saloon notify his bar.
keeper not to sell to any person
who was on the blacklist, and the
barkeeper did so sell to such person,
the owner of the saloon is respon-
sible not only for damages, but for
exemplary damages, if the jury so
decide.

Ib.
JAIL-

On the trial of one charged
under sec. 6902, with having con-
veyed into a county jail a revolver
and other articles useful to effect
the escape d a prisoner lawtally de

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JAIL Con.-

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.
State.

622.
JUDGMENTS-

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.

242.
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.

245.
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,

116.
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
debt.

Ib.
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.
V. Rossman.

119.
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-
missioners.

599.
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.
Haight.

609.
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.
Sweet.

498.
Pleading in an action to set
aside a judgment obtained by fraud.

Ib.
Merger of a judgment. Whit.
taker v. Stone.

591.
JUDICIAL NOTICE-

Courts will take notice of the
nature of the business and the
office of mercantile agencies. Wil.
mot v. Lyon & Co.

394.
JUDICIAL SALES-

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.

619.
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

an

the valuation of the property for
taxation to and including the sale.

Ιυ
The least irregularity, or de-
fect, is fatal and destroys the use-
fulness of the instrument

as

a
means of casting title.

Ib.
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.
Lingo.

35C.
JURY-

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.
State.

305.
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.
State.

316.
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.
State.

664.
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

merged
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-

rangement made prior to the exe-
cution of the written lease.
Strong v. Schmitt.

233.
Where one leases premises for
one year, renewable at the end of
the year, and such lessee at the ex:
piration of the second year held
over, under, and according to the
terms of the lease, such holding
over will be regarded as that of a
tenant from year to year and not as
a tenant by will, and therefore
such lessee will be liable for the
whole of the year.

Ib.
Where plaintiff executes a gas
and oil lease for 100 acres of land,
which provides that if no well is
completed within three months
from date of the lease, then such
lease to become null and void; and
further, that all wells to be com-
pleted on said land 18 months from
date, and no well to occupy more
than one acre of ground: Held,
that the clause in the lease pro-
viding that no well is to occupy
more than one acre of land is not
an agreement that there should be
a well upon each acre of ground of
the 100 acres, and that the failure
of the lessee to sink the well upon
each of the 100 acres of ground, did
not give plaintiff the right to con:
sider the lease as to the balance of
such land forfeited and null and
void. Baldwin V. Oil Co.

50.
The further and main question
in the case was whether the lessor
had given the lessee permission to
sink wells after the expiration of
the original limit of eighteen
months, and upon this question the
court held with defendant and dis-
missed the petition.

In an action by a lessor against
the lessee for rent due, it is no
defense for the lessee to set up the
fact that the premises were leased
for the purpose of carrying on the
business of selling intoxicatirg
liquors where such business was
not carried on illegally or in con-
travention of law. Weitzel v. Slavin.

155.
Where a tenant enters inti
possession under a written lease
for the term of one year, and after
its expiration holds over from
year to year without any other
lease having been made, such ten-
ancy may be terminated by serving
the tenant with a notice four
months before the expiration of
the year during which he was then
holding the premises. Gladwell v.
Hume.

369,

th.

was

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