SPECIFIC PERFORMANCE.-Con.- pressive, inequitable or claimitous in its consequences. Hughes v. Roth. 441. STATUTES, CONSTRUCTION OF-
The word "persons" in sec. 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 him. In re Moore. 575.
A point 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.
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 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 a 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-
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 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. 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 OC- 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
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 knowledge 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
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 Y the section, the failure of the com- 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. 2855, Rev. Stat., was wholly unwarranted and in- valid, and no part of it should be in- Icluded 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
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 affix the value of a judgment at one-half 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.
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.
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.
To establish an express trust in the case of a conveyance by deed at- 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
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 slaughter. The latter county is not entitled 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. 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, a 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., v. Muhme. 224.
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
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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