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SPECIFIC PERFORMANCE.- Con.-

pressive, inequitable or claimitous
in its consequences. Hughes v.
Roth.

441.
STATUTES, CONSTRUCTION OF-

The word "persons" in gec. 83,
Rev. Stat., is sufficiently broad to
include the bringing of a suit under
sec. 5880, by the board of county
commissioners against a boat by
name that has committed an injury
to a bridge located within the jur.
isdiction of the county. Steam
Canal Boat Tempest v. Comrs. 137.

The preference given by sec.
6355 to "operatives” over other
creditors applies only to those
classed as operatives in the usual
and ordinary sense of the word.
Davis v. Greenlee.

111.
Section 1028, which empowers
the county auditor to discharge
certain prisoners confined in the
county jail is not mandatory upon
nim. In re Moore.

575.
A print from three hundred to
three hundred and fifty feet distant
therefrom, may be "near to" such
property within the meaning of sec.
3283, Rev. Stat. W. & L. E. R. R. Co.
v. McLaughlin.

647.
The special proceeding provided
by sec. 5354, et seq., is culminative
merely, not exclusive, and not lim-
iting the right by an original action
to impeach a judgment for fraud.
Howenstine v. Sweet.

498.
The limitation, as provided for
in sec. 6789, Rev. Stat., applies to
an action brought by the state,
where the purpose and object of
such action is simply to oust a cor.
poration from the exercise of a fran-
chise or power conferred upon it
by an act of the legislature. State
ex rel Strimple v. McBride et al.

522.
In the construction of statutes,
courts are authorized, in order to
ascertain the intention of the legis.
lature, to transpose the language of
an act; and it is their duty in the
interpretation of statutes, unless re-
strained by the letter, to adopt that
view which will avoid absurd con.
sequences, injustice or great incon.
venience, as none of these can be
presumed to have been within the
legislative intent. Remington &
Son v. Central Press Assn. Co.

540.
Conditional sales-sec. 7513-72
Rev. Stat. construed.

Ib.
The words “judgment or
ders," as used in sec. 5354, should

have the same meaning as when
used in secs. 6707 and 6708 Rev.
Stat., where it is provided in what
cases error will lie to reverse
judgment or final order. Auten
reith v. Autenreith.

378.
Every suit or action, without
regard to the number of parties
plaintiff or defendant, is a single
cause within the meaning of sec.
1263, Rev. Stat. Clark v. Commis-
sioners.

427.
STATUTE OF FRAUDS-

To bring a case within the stat-
ute of frauds, it must have been
expressly stipulated by the parties,
or appear to have been clearly un.
derstood by them upon a resonable
construction that the contract was
not to be performed within a year.
Westropp v. Westropp.

14.
STREET RAILROADS-

Where a passenger, riding upon
the platform of a street car, suffers
an injury caused by the derailment
of the car; the fact of his riding
upon the platform was not the prox.
imate cause of his injury, where the
evidence clearly shows that the rail-
road company was negligent in the
management of its car, at and before
the time of such derailment. Vail
v. Inclined Plane Ry. Co.

28.
STREETS AND ROADS-

Upon the facts as stated by the
court in its opinion in this case, it
was held that the pendency of the
proceeding in error in the supreme
court to reverse the judgment in a
former case, did not bar plaintiff
from bringing and maintaining
this action, if the evidence otherwise
shows that he is entitled to the re.
lief sought. The Methodist Protest-
ant Church of Cincinnati. v. Laws.

178.
That the matters set up in the
second defense, even if there was
evidence to maintain them, (which
was not offered), had already been
settled and adjudicated in the for
mer case between the same parties.

Ib
That the structure erected by
the defendant over the roadway of
plaintiff is in violation of the right
of said plaintiff, and ought not to
be maintained as it now is. Ib.

Where a road has been laid out
and used previous to the act of
February 26, 1824, which authorizes
all roads to be sixty feet in width,
a proceeding by the county commis.
sioners, under sec. 8 of the act of
March 14, 1831, authorizing a re

or

survey of the road and a return of
the plat thereof, would not have
the effect to widen the road to sixty
feet. Ludlow v. Dies.

49.
Where the owner of a city lot
abutting upon a street applies for
and obtains from the city per:
mission to use a part of the street
at the front of his lot for the de
posit of material to be used in the
construction of a building on such
lot, and a condition of such per-
mission required that lights or
guards should be placed about any
obstruction in such street, caused
by the deposit therein of such
building material; and where, in
pursuance of such permission;
building materials are so placed in
said street as to cause a partial ob-
struction thereof, and the same are
not properly lighted or guarded, so
that a traveler on such street is in.
jured: Held, that in an action by
the person so injured against the
owner of said lot the latter cannot
escape liability for such acts by
showing that such materials were
so deposited by a person to whom
he had let the work of erecting
said building, and over whose oper-
ations he had reserved no control.
Reuben v. Swigart.

638.
The owner of abutting property
upon a street cannot recover dam.
ages from a railroad for partially
obstructing such street. W. & L. E.

R. R. Co. v. McLaughlin. 647.
SUBROGATION

Subrogation by operation of law
takes place whenever one person,
not primarily liable and not a vol-
unteer merely, becomes liable for,
and pays a debt which is a first
lien on real estate, and on which
others as heirs and owners of the
real estate, by inheritance, are also
bound. Corey v. Hayes.

272.
SURETIES,

A surety by payment does not
become ipso facto subrogated to the
rights of the creditor, but only
acquires a right to such subrogation
and that before the substitution or
equitable assignments can actually
take place, he must actively assert
his equitable rights thereto. The
equitable action to enforce such sub-
rogation is barred in ten years from
the time the cause of action 00-
curred. Zuelig v. Hemerlie. . 56.

The right of one surety to con.
tribute from his cosureties, does not
rest upon contract, but arises from
the application of general principles
of equity, and exists, whether such

sureties are on the same or different
bonds for the same purpose, and
whether such bonds are for the
same, or different dates and amounts
and also whether such sureties are
jointly or jointly and severally lia-
ble. Boyd v. Robinson.

82.
A trustee of a non-resident
minor gave bond with sureties ac-
cording to laws of Ohio, for the
faithful administration of his trust;
and afterwards such ward and
trustee, by parol contract, without
knowledge of the sureties procured
and induced a third party to assign
to and place in possession of the
ward valuable personal property in
pledge, as additional security for
the trustee to said ward. The
trustee afterwards died insolvent
and largely indebted to his ward, to
the satisfaction of which liability,
the ward applied the property so
pledged; such pledgor has a right
to contribution from the sureties
on the bond of the trustee. Ib.

Where'n, signed a promissory
note as surety, with the understand-
ing that the principal should obtain
another surety thereon, and R, with
linowledge that N. signed with such
understanding, afterward signed
said note as surety, but before sign-
ing as a condition precedent thereto,
and without the knowledge of N, re.
quired the principal to give him
indemnity: Held, First-That N.
and R. were cosureties. Second
That N. was entitled as against R.
to share such indemnity equally with
him. Niece v. Rogers et al. 671.

The rights and liabilities of a
surety on an executor's or admin-
istrator's bond are fixed and deter-
mined by statute. The contract of
such surety is made with reference
to the provisions of the statute
bearing on the subject, and its pro.
visions are as much a part of the
contract as if written into it. How-
enstine v. Sweet.

498.
Such surety may be released
from liability thereon by order of
the probate court, on request and
good cause appearing to the court,
and the court shall order a new
bond given, but the surety shall not
be released until such new bond is
given.

Ib.

TAXES AND TAXATION-

Where a corporation makes a
return of its real estate for taxation,
affixing a valuation thereto, and
afterwards voluntarily pays the

Ib.

on

TAXES AND TAXATION—Con.-

tax levied on the amount returned;
such corporation may bring a pro-
ceeding in mandamus to require the
auditor discovering that the
taxes have been erroneously col.
lected within five years, to call the
attention of the county commis-
sioners thereto, who may order a
refunder of the taxes so erroneously
made. Hagerty v. State.

88.
The last clause of sec. 2823,
Rev. Stat., should be construed as
follows: (a) The limitation applies
only to levies authorized in chapter
5, title 13, Rev. Stat., and not to
levies authorized by special and
other general statutes. (b) Where
the levy for general county pur-
poses exceeds the amount authorized
in the first clause, but does not
exceed the amount authorized v
the section, the failure of the coin.
missioners to certify or state in the
record “that the levy in the first
clause of this section authorized is
deemed insufficient," does not make
the levy exclusive. W. & L. E. Ry.
Co. v. Stewart.

193.
Where part of the tax assessed
on personal property is illegal by
reason of excessive levies, and the
taxpayer has had no opportunity
to pay that which is legal without
also paying that which is illegal, and
the treasurer proceeds under sec.
2859, Rev. Stat., to enforce the col-
lection, by action against such
person, who interposes and main-
tains a defense to the illegal part;
the ten per cent. penalty previously
added under sec. 28 Rev. Stat.,
was wholly unwarranted and in.
valid, and no part of it should be in.
cluded in the judgment.

Ib.
In an action for recovery of de
linquent taxes, which included a
penalty of ten per cent. for non.
payment the county treasurer is not
entitled to recover anything by way
of penalties, when part of the taxes
are legal and part illegal, as the
county has no right to make a de.
mand for that which is illegal and
put the taxpayer in default for the
payment of that which is legal, and
therefore a judgment recovered for
the amount of such taxes, including
penalties is erroneous. W. & L. E.
Ry. Co. v. Wolfe.

201.
Taxes levied do not draw in-
terest from the time they are pay-
able, or from the commencement of
the action for their recovery, but a
judgment for the amount of the
taxes will be held to draw interest

from the date when it was origi-
nally rendered.

The statute of limitations does
not run against the state in the
matter of the collection of taxes.
Schott, Treas., v. Wasteney. 222.

All taxes regularly assessed,
whether upon realty or personalty,
are a claim on behalf of the state,
and a suit for their collection may
be maintained after, as well as be-
fore the expiration of six years. Ib.

Where the annual city board of
equalization having jurisdiction afix
the value of a judgment at one-halt
its nominal value, in the absence of
fraud its action is conclusive.
Sherard v. Lindsay.

245.
The county auditor, after such
judgment is affirmed by the supreme
court is not authorized, under secs.
2781-2, to add to the tax list for
years the value thus fixed, the dif.
ference between such valuation and
its nominal value, and to such
amount so ascertained and fifty per
centum, and multiply the sum thus
increased by said penalty by the rate
of taxation belonging to said year
or years.

Ib.
Under the facts in this case the
value fixed by the annual city
board was its fair cash value at the
time it was so fixed.

Ib.
Where a taxpayer refuses or
neglects to make a return of the
monthly average, etc., as required
by paragraph 16, sec. 2737, Rev.
Stat., the county auditor may, under
the power conferred by secs. 2781-2,
place the same on the tax duplicate
for the year it should have been
returned, with fifty per centum
penalty added thereto.

Ib.
In making additions to tax
returns, the board of review must
act with reason and upon the evi.
dence before them. Rawson & Co.
V. Schott.

256
A mortgagee who pays taxes
upon mortgaged lands, is entitled to
be subrogated to the rights of the
state as to those taxes, and have the
tax refunded to him in the same
amount that the state might claim a
lien upon the taxed lands. Lawton
V. Adams.

129.
TELEPHONE COMPANY-

Effect of agreement between a
municipal corporation and a tele
phone company as to the mode of
use of its streets. State ex rel.
Mathews V. C. U. Telephone Co.

636

reg 1.

A municipal corporation has no
power to fix the rentals to be charged
by the telephone company for the
use of its instruments.

Ib.
TRIAL-

Where the trial judge in the
hearing of the jury imputes im.
proper motives to defendant's wit.
nesses and disparages their testimony
upon a material matter, it will be
presumed in the absence of any
showing to the contrary, that de
fendant was thereby prejudiced and
deprived of a fair and impartial
trial. Rose v. State.

226.
When upon a trial, testimony is
improperly admitted over the ob-
jection of a party, and the jury is
subsequently instructed to disregard
such testimony, the judgment will
not be reversed on account of the
error committed in admitting such
testimony, when it is not evident
that the jury failed to follow the
instruction given to disregard it, or
it does not otherwise appear that
prejudice resulted therefrom to the
party complaining. C. H. & D. R.
R. Co. v. Criss.

632.
The order in which testimony
shall be introduced, must of neces.
sity be largely in the discretion of
the trial court. Limerick v. State.

664.
But this should be a legal and
proper discretion, and such course
should be pursued as should not
prejudice the rights of the parties.

Ib.
The fact that on the trial of a
criminal case in the court and room
presided over by a judge of the
common pleas, who had been as.
signed by the judges of the court
of common pleas in joint session to
hold court in said room and said
judge invites another judge of the
same court to sit with him upon the
bench in the trial of such case, and
he does so, and they together hear
and agree upon the decision which
should be rendered, and it is en.
tered in due form upon the journal
of the proper court, does not make
such action erroneous or prejudicial
to defendant, and particularly so
when, no objection whatever was
made to this until the filing of the
motion for a new trial. Haas V.
State.

509.
In a case involving the life or
liberty of a person, courts should
be astute and vigilant in seeing that
the accused has a fair and impartial
trial.

Ib.

It is better to err in favor of a
defendant than against him in this

Ib.
a such cases it is the duty of
the courts to see that a speedy trial
also he had, in so far as may consist
with the rights of defendant, and a
large discretion as to this is neces-
sarily conferred upon the trial court,
and its exercise should be uphelij
and maintained unless manifestly
abused.

Ib.
TRUSTS-

To establish an express trust in
the case of a conveyance by deed atı.
solute on its face, it is requisite that
the evidence should be clear, certain
and conclusive, in proof not only of
the existence of the trust, and that,
too, at the time of the conveyance,
but also as to its terms and condi-
tions. Schmitt v. Schnell. 657.

Where the parents and children
all live together engaged in earning
а common support, and accumu
lating a common property, with a
sort of general understanding, that
after the death of the father and
mother the children would succeed
to the inheritance, but without any
special contract, and the legal title
to such property being in the father:
Held, that there is no such agree.
ment as will establish an express
trust in the father for the benefit of
such children.

Ib.
VENDOR AND PURCHASER-

Where one purchases property
represented to be of a certain size
and extent, which representations
prove untrue, such purchaser may
have such abatement in the price,
or such a recovery on his own part,
if he shall have paid the purchase
price, as will make him good for
that which he has lost, because the
property is not the same in size
and extent as represented, although
the representations may have been
innocently made. Douglass V.
Plotkin.

159.
A purchaser, who purchases
certain real estate without any
knowledge on his part regarding
an agreement between the plaintiffs,
whereby they were each to receive
one-half of the net profits realized
from the sale of such property;
such purchaser cannot be held li.
able by either party for his share
of the profits, as provided for in
their written agreement. Detwiler v.
Gates.

543.
VENUE-

This term as used in sec. 7264,
Rev. Stat, which provides for a

a

VENUE-Con.-

change of venue in criminal trials,
and for the reimbursement of the
county to which a case is thus sent,
for "costs accruing" from such
change, must be read as having its
usual legal import. Therefore, L.
being indicted in M. county for
murder, the venue changed to. G.
county, where the case was tried,
and there convicted of man.
slaughter. The latter county is not
entit ed to recover from the former,
fees it was compelled to pay persons
summoned as jurors in the case,
notwithstanding they were neces-
sarily and properly called for such
service. State ex rel. V. Commis-
sioners.

351.
WIDOW-

In an action for a year's al.
lowance by a child under fifteen
years of age residing in Germany,
against the estate of her father who
resided in this state, it appearing
that the father came to this country,
leaving a wife and this child in
Germany, from whom he procured a
divorce and then married again,
and at the time of his death,
he left surviving him,

wife
and two children, who received
their yearly allowance, which
was made without any knowledge
that there was another child under
fifteen years of age: Held, that
such child was entitled to her yearly
allowance, although she was never
a resident of Ohio, and the fact that
such child upon proving her patern.
ity, receive their distributive share
of her father's estate, does not con.
stitute a bar to her claim for a
year's allowance. Banse, Admx., y.
Muhme.

224.
WILLS-

A will containing the following
provisions: I give and devise to
my wife all my property, to have
and to hold during her natural life,
and to dispose of as she sees fit, will
be held to confer upon the wife the
whole estate of the testator in the
property mentioned. The words,
"and to dispose of as she sees fit,"
will be held to enlarge the life estate
into a fee, or an absolute disposition
of the estate. Lepley v. Smith.

264.
Where a wife made her will
five years before the death of her
husband, and the husband shortly
before he dies made a will disposing
of his property to his wife with the
provision that she is, "to have and
hold during her natural life and to

dispose of as she sees fit:" Held,
that the wife's will is not a valid
execution of the power contained in
her husband's will. And there be-
ing nothing in her will which in
dicate an intention to pass any after
acquired property, she will be held
to have died intestate as to the
property devised or bequeathed her
by her husband's will, and such
property is to be transmitted under
sec. 4162, Rev. Stat.

Ib.
In arriving at the construction
of a will, the first thing to be con-
sidered is the will of the testator,
and if that, when examined in the
light of the whole will, shows clearly
and conclusively what his wish and
desire is, it will be carried out and
respected by the courts unless there
is some provision of the law
absolutely prohibiting his doing what
he attempts to do. Thurston, Admr.,
v. Bissell.

235.
Where the testator in his will
provides that the use, rent and in-
come of certain property is to go
to his brother during life with power
of naming by will whom the prop-
erty shall vest in, and then again
the will provides for a life estate in
certain others of the real estate,
and upon death of the life tenant,
the remainder shall go to his legal
representatives, but adds an addi.
tional clause that in no contingency
is any part of his estate to go to
any child or children of one of his
brothers: Held, that this latter
provision is a limitation that bound
the life tenant and prevented him
from directing that this property
should be given in any way contrary
to this latter provision, and in effect
it amounted to a limitation upon
his power to do so.

Ib.

.
Under the provisions of our
statute, which provides that in an
action brought to contest a will, the
order of the probate shall be prima
facie evidence of the due attestation,
execution and validity of the will,
where offered by those claiming
under it, and does not impose upon
them the necessity of giving some
reasonable explanation of any un-
natural provisions that may appear
in the will, but the burden of proof
is upon the contesting party, to
show that such will was the off-
spring of mental defect, obliquity
or perversion. Ousley v. Witheron.

448.
Where a testator has sought to
make a specific disposition of prop-
erty, or a disposition by terms, and
that disposition has failed such will

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