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Insurance, Life-Intoxicatieg Liquors.

2.

tures without lessor's knowledge;
the policies containing clauses limit:
ing recovery to proportion of loss
the aliount of each bore to the total
insurance, the lessee's policy is sub-
ject to such clause, although payable
to different person than lessor's pol-
icy. Western Ins. Co. v. Carson.

728
Where a lessee without
lessor's knowledge, procures insur-
ance upon his fixtures in name of
lessor, loss, if any, payable to lessee,
does not violate clauses in lessor's
policies, forbidding other insurance.

Ib.
3. The policy provided that if
the assured sell or transfer the prop-
erty it should be void. The insured
subsequently transferred to a firm
consisting of himself and partner.
Held, That the insured did not part
with his insurable interest by the
transfer so as to avoid the policy ir-
respective of conditions in that in-
strument; but there had been a sale
which worked a forfeiture within the
provision. Blackwell v. Insurance
Co.

159
INSURANCE, LIFE-

1. A member of a purely mu-
tual life insurance company, or one
holding a policy therein, is bound to
know all the rules and regulations of
such company. Gaff v. Mutual Life
Ins. Co.

88
Circumstances which con-
stitute a valid assignment of a policy
of life insurance to the cestui que
trust, to secure the payment of the
obligation from the trustee. Hewitt
v. Life Ins. Co.

53
3. A policy of insurance is-
sued by a Mutual Life Ins. Co. had
lapsed by reason of non-payment of
premiums, in which it was stipulated
that at cach distribution of the sur-
plus, a due proportion should be re-
turned to the insured; and also that
if after two
miums are paid, default shall be made
in payment of any premium, the
company will issue a paid-up policy
for a certain sum, provided written
application is made therefor and the
original policy is surrendered within
six months from the date of default:
Held, That the failure of the com-
pany to properly distribute its sur-
plus, is not under the law or the pro-
visions of the policy a sufficient
ground for relief against the for.
feiture of the policy.

Jones v. In.
surance Co.

631
4. No right to a paid-up pol-
icy exists unless the application was

made and the original policy was
surrendered within six months after
the policy lapsed.

Ib.
INTEREST-

In the absence of testamentary
direction, a general legacy is payable
one year after testator's death, and
will hear interest thereafter until

paid. Krigbaum v. Southard. 8n3
INTOXICATING LIQUORS-

1. Under the Dow law, (85
O. L., 117), the assessment year be-
gins on the fourth Monday in May
and, therefore, a tender of $25, by a
person commencing on the first day
of May is sufficient. Kusta v. Kim-
berly.

789
2. Such person is only re-
quired under_sec. 3 of the amend-
ment of the Dow law, to pay an
amount proportionate to the remain-
der of the assessment year, but in no
case to be less than $25.

Ib.
3. A prohibitory ordinance
passed by the council of a municipal
corporation in Ohio, under the Dow
law, against the traffic in intoxicat-
ing liquors within such corporation,
is within the power of such munici-
pality o far as the retail traffic in
in liquor is concerned. McCrea v.
Washington.

29
4. But a municipality has no
power, under the Dow law or any
other law of Ohio, to pass an ordi-
nance prohibiting the sale of liquor
by wholesale, or compelling drug-
gists to keep lists of Dersons to
whom they furnish liquors on pre-
scription.

Ib.
5. Action for the alleged vio-
lation of a prohibitory ordinance,
passed in pursuance of and by vir-
tue of sec. II of the act commonly
called the Dow law, wherein sec. II
of said act purports to confer power
on municipal corporations to wholly
prohibit the liquor within their cor-
porate limits. Wilmington v. Egan.

103
6. In the law against selling
liquor on Sunday (85 O. L., 260), the
prohibition against keeping "open"
means open in such a manner as to
induce the public to enter, as
other days, and does not make penal
the opening of the door under any
and all circumstances. Munzebrock
v. State.

277
7. The statute

which pro-
hibits the keeping open of saloons
for business, and the sale of intoxi-
cating liquors, on Sunday, is a crim-
inal law of the state. State v. Police
Board.

256

2.

or

more

annual pre-

on

Judgment-Jury.

56

were

not

2.

10.

or

212

2.

INTOXICATING LIQUORS-Con.

separate estate. Drake v. Bird all
3. Section 11 of the Dow law

& Co.
(85 (). L., 260), makes the keeping JUDICIAL SALE-
open on Sunday, of the doors of a
place where liquor is sold a distinct

1. Judgment liens acquired
offense from selling on Sunday.

pending an action to foreclose a
Moliter v. State.

324

mortgage, are divested by a sale of
9. It is proper to charge that the inortgaged premises, under the
if the doors were open or any place of

decree taken in the foreclosure,
ingress available to the general public, though the judgment lien-holders
the accused must be convicted unless

parties to such action.
he proved by a clear preponderance

Roberts v. Doren.

349
of evidence that it was for another

A purchaser at a sheriff's
purpose than selling liquors. Ib.

. or a master's sale under a decree oi
Such legislation is valid

foreclosure is entitled in the same
under the police power, even though action to an equitable writ of execu-
it may be an injury to innocent tion to put him into possession of
property.

Ib. the mortgaged premises as against

the defendants in the action,
JUDGMENT-

those who have come into possession

under defendants pendente lite. Tet-
1. Where a former judgment

terbach v. Meyer.
is pleaded in bar and it appears from

3. As against the mortgagor
the record that the former judgment in possession the writ will be
was in favor of three persons, only granted notwithstanding the fact
two of whom are parties to the ac- that the purchaser before gaining
tion, the record does not support the possession has conveyed the

prem-
plea and is incompetent as evidence. ises by warranty deed, when it ap-
Block v. Peebles.

3 pears that the mortgagor refuses to
A decree in a divorce suit, permit either such mortgagor or his
allowing the wife alimony in gross grantee to enter into possession. Ib.
and making the same a charge upon
the husband's lands, if not kept alive

JURISDICTION-
by issuing executions

proper

1. Generally, the locus of a
times becomes dormant like an ordi- cause of action is the place where the
nary judgment at law and ceases to wrong, which constitutes it, is done
be a lien. Mullane v. Folger.

485 or threatened, if that be also the jur-
3. In an action before a jus- isdiction in which, when it arose the
tice where there is neither actual ser- wrongdoer could be sued. Clark v.
vice nor voluntary appearance, but Eddy.

539
jurisdiction is acquired by attach-

Where the cause of action
ment of property and publication of is a breach of the personal obliga-
notice, the justice may render judg- tion of a contract, it is to be regarded
ment for the full amount of plaintiff's as arising at the place where the de-
claim, if not in excess of his jurisdic- linquent party resided and could
tion. Coal Co. v. Manley. 394 have been sued, when the breach oc-
4. In such case the judgment curred.

Ib.
is a mere incident to the appropria-

3. The facts that the contract
tion of the attached property-rest- is by deed and relates to land, and
ing upon the necessity for a finding was to be performed elsewhere, will
of personal liability as a condition not vary the rule, if the action is in
precedent to the application of the personam, and for damages only
property-and has no operation be-

Ib.
yond the disposition of the property

4.. A justice of the peace has
seized in limine.

Ib. jurisdiction in forcible detainer pro-
5. The statutory

provisions ceedings to declare a forfeiture and
contained in secs. 5555 and 6507, R. oust a tenant for non-payment of
S., that judgment may issue for the rent. Cox v. Jaeger.

821
residue, contravenes the constitu-
tional guaranty of “due powers of JURY-
law” and is unconstitutional. Ib.

1. The word "party" as used
6. Under the legislation of in sec. 5177, R. S., means "side,” and
1884, a personal judgment cannot be that, however numerous the defend-
recovered against a married woman ants in a civil case, they can only to-
upon a promissory note signed by gether exercise two peremptory
her as surety merely, without any, challenges. Moores & Co. v. Brick
consideration connecred with her

layers' Union.

at

2.

665

Justice of the Peace-Libel.

secs.

are

a

sane.

682

2. Under sec. 6547, R. S., a
jury is not demandable by plaintiff
until after deiendant appears. Anony-
mous v. Railroad Co.

642
3. In an action to appropriate
private property under

2232-
2261, R. S., the property owners are
not entitled to separate juries or to
demand struck juries for each sepa-
rate lot or parcel. Cincinnati v.
Neff.

279
4. The property owners
only entitled to

two

peremptory
challenges.

Ib.
5. Where the accused in
police court demands a jury and was
present when it was drawn but on
the trial seven persons not in the
venire in his case, but in another case
at the drawing of which he was not
present, were called and his challenge
to them overruled, his conviction
will not be set aside for this irregu-
larity, no prejudice or want of im-
partiality in the jury being shown.
Moliter v. State.

324
JUSTICE OF THE PEACE-

As no provision is made by
statute for payment of compensation
to justices for services rendered by
them, in making abstracts of elec-
tion returns, the county commission-
ers have no power to make payment
for such services out of county sunds.
State v. Haniilton Co.

467
LANDLORD AND TENANT-

A landlord is charged with
duty of keeping in repair, and free
from donger a common passage-way
for a number of his tenants, where
he has control of the passage-way,
subject only to the tenants' right to
use the

passage-way.
Dorse v. Fisher.

163
He cannot escape liability
for injury to his tenants, caused by
the dangerous condition of the pass-
age-way, on the ground that its con-
dition was produced by the negli-
gence of an independent contractor.

Ib.
3. If a lessee fail to deliver
possession to the landlord at the end
of his term, by reason of the refusal
of his sub-tenant to go out, he will
remain liable for the rent during the
occupancy of the sub-tenant. Wil-
son v. Cincinnati.

123
4. Where premises let to
tenant include a walk appurtenant to
the property, to which certain other
tenants of the same landlord have a
right of access and use, the landlord,
in the absence of a contract to that
effect, is not bound to keep such

walk in repair, and is not responsible
in damages to the tenant if injured
by reason of the deiective condition
of the walk. Dee v. Emery. 92

5. An assignee for creditors
of the lessee accepting the trust does
not thereby accept the leaseliold so
as to be in privity. but may accepl or
reject the lease, for he represents the
creditors and not the lessee. Cin-
cinnati v. Goodhue.

345
6. Mere entry upon the prem-
ises to remove the goods of the as-
signor is not an election to take the

Ib.
7. If, however, the assignee
enters the premises and uses the
same for the benefit of the estate,
this is an election to take the lease,
and makes the assignee personally
liable for the rent.

Ib.
LARCENY-

Where several articles of prop-
erty are stolen at the same tirie, the
transaction being the same, the
whole, although they having two dif-
ferent owners, may be embraced in
one count of the indictment, and the
taking thereof charged as one of-

fense. State v. Smith.
LIBEL-

1. In an action of damages
for libel, defendant may offer evi-
dence of the truth of the publication,
in mitigation of damages, and if the
jury find the publication to be true,
they may reduce the damages to a
nominal sum.

Commercial Gazette
Co. v. Healy.

415
A trades-union and its
members who participate, are liable
in libel for issuing a false circular
charging plaintiffs with employing
inferior scab labor in prosecuting
their business. Parker Bricks
layers' Union.

3. A newspaper corporation
is liable in exemplary damages for
the publication of a libel where its
agent is guilty of actual nialice
toward plaintiff, or of that degree of
wanton recklessness which in law is
the equivalent of actual malice.
Commercial Gazette Co. v. Grooms.

489
4. One of the elements :f
damage from a libel to be considered
by the jury in their estimate of com-
pensatory damages is the mental suf-
fering of plaintiff.

Ib.
5. Upon the question of the
amount of such suffering, plaintiff is
a competent witness.

Ib.
6. Political abuse, as to print
of a man that he is a political liar,

I.

2.

same

as

a

2.

V.

458

a

License-Master and Servant.

re-

I.

to

LIBEL-Continued.

traitor, cfficial recalcitrant, nonde-
script, nincompoop, not of his every
day character, but implying false
doctrines and political unreliability,
is not libel per se, for it does not
tend to degrade or disgrace him in
general esteem. Settlage v. Kampf.

822
LICENSE-

A city may maintain a civil
suit, as fçı debt, for the collection of
license fees provided for in 80 O L.,

129. Cincinnati v. Benhausen. 6:2
LIMITATIONS-

1. The act of 1831, sec. 4, ap.
plied only to cases founded on con-
tracts, express or implied, made out
of this state, by non-residents. Clark
v. Eddy.

539
2. The code in 1853, sec. 22,
enlarged the operation of the earlier
act, by extending it to all causes of
action arising out of this state be-
tween lion-residents.

Ib.
3. The effect caused by the
revision of 1878 is to enlarge the op-
eration of the provision, inasmuch as
causes of action may arise in another
state or country, in favor of persons
resident in this state, which would
be clearly within its present terms,
but which, because of the non-resi-
dence clause in both of the earlier
acts, would not have been covered
by either.

Ib.
4. In Ohio, prior to the en-
actment of the code of civil pro-
cedure, the statute of limitations did
not operate proprio vigore to bar a
suit in equity for the foreclosure of
a mortgage on land.

Morrison V.
Martin.

738
5. In such cases the statute
was applied with a view to justice, by
way of analogy to legal actions of
similar nature or subject matter. Ib.

6. On this principle, the bar
to an ejectment was made the limita-
tion in foreclosure, rather than that
of an action for the debt which the
mortgage secured.

Ib.
7. The code also enacts that
civil actions other than for the re-
covery of real property, be
brought only within specified peri-
ods after the cause of action accrues,
the longest of which is fifteen years,
upon a specialty or an agreement,
contract, or promise in writing. Ib.

2. A mortgage being a spe-
cialty under sec. 1980, R. S., to ac-
tion to foreclose it is barred in fifteen
years.

Ib.
10. The

particularity
quired in pleading an exception to
the statute of limitations in cquity is
not required under the code in plead-
ing the express statutory exception.
Zieverink v. Kemper.

455
LIS PENDENS-

The doctrine of lis pendens
does not apply to certificates oi
shares of stock transferabiç by such
blank endorsenient and pow'c? oj at-

torney. Krebs v. Forbriger. 506
MANDAMUS-

Mandamus will issue
compel a police board of a city to
enforce the Sunday law, be the
court has no power to prescribe now
the law shall be eniorccti. Staie v.
Police Board.

re.

8. A civil action under the
code, to foreclose a mortgage on
land, is not an action for recovery of
real property, but is an action on a
specialty, which is also a contract in
writing.

Ib.

256
2. Where a city auditor
fuses to draw his warrant to pay a
monthly installment of salary, man-
damus is the appropriate remedv.
State v. Cleveland.

571
3. In a proper case a manda-
mus may issue to require a court of
inferior jurisdiction to take bail. But
where the rules of court of common
pleas are that attorneys should not
be received as bail bond, the court is
not warranted in pointing a writ to
the judge of the police court requir-
ing him to accept an attorney as bail

bond. State v. Von Martels. 819
MARRIAGE-

Section 6987, Rev. Stat., pre-
scribing punishinent for intermar-
riage or illicit carnal intercourse of
a person of pure white blood with
one who has a visible admixture of
African blood is constitutional.
State v. Bailey.

813
MASTER AND SERVANT-

1. An employee's neglect of
orders is not contributory negligence
if he would have been injured even
if he had obeyed. Smith v. Powell
Co.

799
2, Nor will his negligence
defeat a recovery if it did not con-
tribute to the injury.

Ib.
3. The risks assumed by an
employee are only the ordinary risks
incident to the employment, presup.
posing that the master has exercised
ordinary care in the construction of
appliances and the hiring of com-
petent tellow workmen.

Ib.
4. All risks not necessarily
inherent in the employment must be

can

Mechanics' Lien-Mortgage.

5. The

notified by the master to the em-
ployce.

Ib.
employees mere
knowledge of risks not inherent in
the enployment will not charge him
with assuming such risks unless he
appreciated, or ought to have done
so, their nature and probable extent
and consequences.

Ib.
6. If the master has superior
knowledge or judgment, the em-
ployee has a right to rely upon it so
far as to assume that he will not be
needlessly exposed to risks which
ordinary precaution of the employer
could prevent.

Ib.
3 If the master's negligence
contributed to the employee's injury
it is no desense that a fellow servant's
negligence also jointly contributed
to it.

Nor that a fellow servant
might by care or caution have pre-
vented it.

Ib.
MECHANICS LIEN-

1. No personal judgment
against the owners of a railroad can
be rendered in favor of sub-contrac-
tors and material men.

Schneider v.
Railroad Co.

364
2. The statute will not be
construed to make them liable to
claimants of whom they could have
no knowledge.

Ib.
3. The remedy is in equity to
distribute the fund which the owner
is required by the statute to have.

Ib.
4. The notice of a sub-con-
tractor's lien to be served on the
owner, complies with sec. 3193 if it
contains a sworn and itemized ac-
count oi the labor and materials fur-
nished, with the name of the head
contractor and sub-contractor. Ben-
der v. Stetlinins.

186
5. It need not contain a state-
ment of the facts necessary to make
it a valid lien.

Ib.
6. An affidavit on belief of
the correctness of an account does
not make the account a sworn ac-
count within the statute.

Ib.
7. A sub-contractor or
terial mar is charged with notice of
the terms of the contract

on the
fruits of which he claims a lien, and
can have no lien as against other
sub-contractors and material men
for lahor and materials not called for
by the contract.

Ib.
8. In a contest between ma-
terial men and sub-contractors for
the fruits of the contract, the failure
of the head contractor to dispute the
claims, of which statutory notice has
been filed with the owner and by

him with the head contractor is not
prima facie evidence of the correct-
ness of those claims as valid liens.

Ib.
9. The mechanic's lien law
has extra territorial effect.

Ib.

.
10. To entitle any person to
lien thereunder, the materials must
be furnished or the labor performed
within this state.

Ib.
11. Goods consigned from
another state to the head contractor
do not entitle the consignor to a licn
as a material man.

Ib.
12. The taking of a ron
sory note in lieu of a claim for ma-
terials is a waiver of a lien therefor.

Ib.
13. In an action to marshal
liens where the holder of a judg-
ment for "materials and supplies'
furnished in accordance with sec,
3398. claims priority over mortgages
existing before the supplies were fur-
nished, he burden is upon such claim-
ant to show not only that he has ob-
tained such judgment, but also that
the cause of action

upon which it
was obtained was such as to come
within the terms of sec. 3398. Loan
& Trust Co. v. Railroad Co. 481

14. Other holders of liens up-
on the railroad were not necessary or
proper parties to the original action
in which the judgment was obtained.
and the question of priority can
properly be heard and determined in
a subsequent action to marshal liens.

Ib.
15. Claims for supplies fur-
nished under sec. 3398, may be as-
signed and judgment thereon taken
by the assignee, who thereupon ob-
tains the same right of priority as
the original claimant would have ob-
tained if the judgment had been
taken by him.

Ib.
MORTGAGE-

A mortgage which
tains a description of the wrong
property may be corrected in equity;
but not to the prejudice of the rights
of a subsequent mortgagee without
notice. Youtz v. Fulliard. 298

2. The recorder has no
thority to change a record of a mort-
gage after it has once been duly re-
corded, even if requested and author-
ized to do so by the parties. Ib.

3. An alteration on the rec-
ord of a mortgage, made by a re-
corder after the mortgage has been
duly recorded, or memorandum
made by him on the margin of such
record as to such alteration, is void.

Jh.

1.

con-

ma-

au-

a

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