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SPECIFIC PERFORMANCE.- Con.-
pressive, inequitable or claimitous
in its consequences. Hughes v.
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.
Section 1028, which empowers
the county auditor to discharge
certain prisoners confined in the
county jail is not mandatory upon
nim. In re Moore.
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.
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.
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.
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.
Conditional sales-sec. 7513-72
Rev. Stat. construed.
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.
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.
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.
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 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.
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.
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.
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
TAXES AND TAXATION-
Where a corporation makes a
return of its real estate for taxation,
affixing a valuation thereto, and
afterwards voluntarily pays the
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.
from the date when it was origi-
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.
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
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.
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.
In making additions to tax
returns, the board of review must
act with reason and upon the evi.
dence before them. Rawson & Co.
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
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.
A municipal corporation has no
power to fix the rentals to be charged
by the telephone company for the
use of its instruments.
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.
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.
The order in which testimony
shall be introduced, must of neces.
sity be largely in the discretion of
the trial court. Limerick v. State.
But this should be a legal and
proper discretion, and such course
should be pursued as should not
prejudice the rights of the parties.
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.
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
It is better to err in favor of a
defendant than against him in this
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
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
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.
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.
This term as used in sec. 7264,
Rev. Stat, which provides for a
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-
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,
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.