In a proceeding by a ward 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 rendered against him, to which pro- 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.
Where a person has purposely, maliciously and with premeditation committed one great crime against
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. benpowell v. State.
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
such conclusion, the indictment is bad.
Ib. 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.
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 bond; 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
Where a person procures a 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 by 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 filed 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. Co. v. Port Clinton Fish Co. 468. The question whether the loss was total or partial is for the jury to determine.
A loss may be total, although part of the structure may not be consumed by the fire. Ib.
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- Iceived his order in connection with a verbal order before the L. Bros. received their orders, and both claims being presented for payment, plaintiff filed a bill of interpleader 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 liquors 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.
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 of a prisoner lawfully de
tained therein, and with intent to thereby facilitate the escape of such prisoner, the court charged the jury that if the defendant gave the re- 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.
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 its 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.
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 evi- 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. 593.
The court having power to grant leave to file a petition out of rule, it has power to take up and 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 wil be conclusive, unless some method is taken in the court to set it aside. Parker v. Haight. 609.
The common pleas court having and general equity jurisdiction 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. JUDICIAL SALES-
the valuation of the property for taxation to and including the sale. Ib
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.
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 magistrate with an 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 State.
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 was 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-
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. Ih.
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 intoxicating liquors where such business was not carried on illegally or in con- travention of law. Weitzel v. Slavin. 155.
Where a tenant enters int 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,
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