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act in good faith and receive a fair
compensation therefor.


The probate court has jurisdiction
to determine the right to appropri-
ate, the necessity for it, and other
jurisdictional issues, and its finding
is conclusive upon the questions in-
volved and cannot be collaterally at-
tacked. The only remedy is by pro-
ceedings in error.

The object of Sec. 6416, Rev. Stat.,
is to compel the railroad to appro-
priate such an amount of land as the
court shall determine necessary for
its purposes, but such rule cannot
have much force in a case where a
railroad company has taken posses-
sion of land and operated its road
upon it for several years, and both
parties seem to be content, so far as
the amount of land taken is con-
cerned. Pittsburgh & W. Ry. Co. v.

Inasmuch as Sec. 6448, Rev. Stat.,
requires a petitioner in a proceeding
to compel a corporation to appropri-
ate property in its possession, to
which it has no right, legal or equit-
able, to allege in his petition that
the land has been occupied by par-
ties having no legal or equitable title
thereto. that notice has been duly
served, and the time of limitation
under the notice has elapsed, such
statements are jurisdictional. The
inference of the whole statute is
that possession gives no equitable
right nor any legal title to the lands.

A railway company, by taking
possession of and constructing its
road across the lands of another
without appropriating the same, or
entering into any written agreement
therefor acquires no legal or equi-
table title thereto under Sec. 6448,
Rev. Stat., authorizing proceedings
to compel the appropriation of prop-
erty so held. The railroad company,
in such case, is a trespasser, and
notwithstanding it has held certain
lands for fifteen years, the value of
the land at the time proceedings
were brought, not at tne date when
it was taken, should govern in es-
timating damages for its unlawful

A railroad company having taken
possession of lands of another with-
out appropriation or written con-
tract, the owner does not lose the
remedy afforded him by Sec. 6448,
Rev. Stat., relative to requiring ap-
propriation, by standing by and see-
ing a road constructed and operated

on his lands unless he stands by in
such manner as to lead the road to
believe that it may have the right of
way without paying for it and as-
sents to their going on the land. Ib.
See also PARTIES.


Since the amendment of Sec. 2289,
Rev. Stat., omitting the words "A
substantial defect in the construc-
tion of the improvement shall be a
complete defense," the fact that that
part of a street where sidewalks are
to be laid was not brought up to grade,
the grade of the street having been
changed in making an improvement
thereon, cannot be taken advantage
of, as a defect in the improvement,
in an attack upon the assessment for
the street improvement, unless fraud
is alleged. McGlynn v. Toledo,. 15

The fact that a contract for a
street improvement provided that
the contractor "will keep in good
order and repair all the work" there-
under for a period of five years after
its completion and that ten per cent.
of the cost thereof shall be withheld
in order to enforce the contract for
such period, will not invalidate the

Fees for notices served upon non-
resident owners of property abutting
a street for the improvement there-
of, to which it does not appear the
mayor's clerk was entitled should
be omitted from an assessment
against the property owners for the
street improvement.

The rent of a steam roller is prop-
erly included in an assessment for a
street improvement where it appears
that the contractor agreed to do the
work for a certain sum and the city
agreed to rent the roller for so much
per day.

Property owners signing such a
petition are not estopped from en-
joining the collection of an assess-
ment for damages resulting from a
change of grade, unless it appears
that they were aware of the fact
that the city was proceeding upon
the faith of former decisions of the
Supreme Court relating to levying

Damages awarded to persons ow-
ing property along a street on ac-
count of change of grade affecting
their access to their property, are
not properly chargeable against
such property owners as a part of
the costs and expenses of the im-
provement of the street.



An action brought by one person
against others, in which the city was
made a party defendant, on promis-
sory notes and to foreclose a mort-
gage, in which was litigated and de-
cided the question as to the right of
the city to enforce a portion of such
assessment assessed against that por-
tion of the frontage which
after the improvement had been
made was devoted to streets, when
decided in favor of the city
upon demurrer, cannot be claim-
ed as a bar to an action by the
city against other parties to enforce
the collection of assessments for such
improvement. Columbus v. Schneid-


Actions brought by the proper
parties against a city to restrain the
collection of a street improvement
assessment, submitted upon the is-
sues, and decided against the plain-
tiffs and the assessment upheld,
amount to a conclusive adjudication
of the validity of the assessment in
an action brought by the city
against other parties to enforce the
collection of assessments for such

Under the curative provisions of
the statute, sewer assessments,
which are illegal for irregularity in
the proceedings, are enforcible, to
the extent that expense has been in-
curred which is properly chargeable
against the property assessed, and
not in excess of benefits. Osborn v.

A corner lot in the village of Nor-
wood, which had within five years
next preceding the construction of a
sidewalk, been assessed for the im-
provement of the two streets upon
which the lot abuts, for more than
twenty-five per cent. of the value
thereof, after such improvement had
been computed, cannot be made
liable for an additional assessment
under the provision of the "Richard-
son law." Norwood v. Building As-
Failure of a full three-fourths of
abutting property holders to sign
for a street improvement, does not.
give one who did sign the right to
enjoin the assessment or to claim
damages. Farrell V. Cincinnati.

A petitioner for street improvement
is estopped, after the improvement
has been ordered and the work done,
to claim that he has a less number

of feet subject to assessment than he
signed for in the petition. Carson
v. Delhi (Vil.).

Where the house, stable, drive and
footways, as well as the use of a
cornor lot, show the same to be on
the breadthwise front of the prop-
erty, the frontage on such side will
determine the assessable frontage
for an improvement on the street
abutting that side, especially where
no driveway or walk connect with
the street on the narrower side and
there is no improvement fronting
thereon. Duffy v. Norwood. 675

Section 2270, Rev. Stat., prescrib-
ing that the maximum of assess-
ments for municipal improvements
shall not exceed twenty-five per cent.
of the property assessed, and Sec.
2284, Rev. Stat., determining what
the cost of improvement shall in-
clude, where bonds are issued in an-
ticipation of the collection of assess-
ments, etc., apply in cases where as-
sessments for street improvements
are payable in installments, and
bonds are issued therefor and inter-
est thereon is added to the deferred
installments so as to increase the
assessment to more than twenty-five
per cent. of the appraised value of
the property. Salem (City) v. Mul-



On an issue of want of considera-
tion for the assignment of a judg-
ment, if there were benefit to the
assignor received from the assignee,
viz: by getting means to stop the
forced sale of this farm, or if there
were benefit or possible detriment
to the assignee in the transaction, in
either event there is a sufficient con-
sideration shown. Wright v. Snell.
If such judgment debtor should be
innocent of any fraud in the obtain-
ing or rendition of such a judg-
ment, but by permitting the judg
ment to remain of record as subsist-
ing and valid, and in permitting the
judgment creditor to appear of record
as the owner of such judgment, he is
estopped by such acts and conduct
from setting up any defense which
would affect the rights of a bona
fide purchaser or assignee from such
Where a person procures or as
sists in procuring a judgment to be


taken against him, and a lien is
thereby obtained upon his property
in favor of another, with intent to
cover his property with liens, so as
to defeat an anticipated or appre-
hended judgment, that may be recov-
ered against him, and the person in
whose favor such judgment is taken,
for a valuable consideration, assigns
such judgment to an innocent
purchaser, without notice of the
fraud in its inception and rendition,
such judgment debtor is estopped
from assailing the judgment as
against such innocent purchaser.

In an action between a bona fide
purchaser or assignee of a judgment
and a stranger to the judgment, such
purchaser stands unaffected by
frauds of which he had no knowl-
edge, express or constructive. Ib.



While a defendant cannot move to
vacate an order of attachment on the
ground that the property attached
does not belong to him, yet if the
ground of the motion to discharge
is that the affidavit upon the attach-
ment issued was untrue, the attach-
ment may properly be discharged not-
withstanding the fact should appear
that he was not the owner of the
property levied upon. Bernhard v.

An affidavit for attachment, which
states that plaintiff has commenced
an action in the common pleas to re-
cover $5,015, to become due and pay-
able at stated times, upon two cer-
tain promissory notes, one of which
is for $4,000, due in ninety days, and
without interest until after maturity,
and the other, the principal sum of
which is not stated, due in ninety
days with interest from date, suffi-
ciently shows that the latter is for
$1,000 principal and fifteen dollars
interest, as required by Sec. 5565,
Rev. Stat. Mansfield Bank v. Post.

Affidavit for attachment which
simply states that "said claim is just,
and affiant believes that plaintiff ought
to recover thereon the sum of five
thousand dollars," without in any
way stating when the claim will be-
come due, is not sufficient to author-
ize attachment under Sec. 5565, Rev.

The exercise of discretionary
power by a judge in allowing a writ
of attachment, that is, whether he
will allow or refuse the writ upon
the facts and circumstances detailed
in the affidavit as justifying a belief
of the existence of fraud, cannot be
reviewed in that court.

Under paragraph 7, Sec. 853, Rev.
Stat., where, in a civil action before
a justice of the peace, brought in the
county but not in the township of
the defendant's residence, the sum-
mons is accompanied by an order of
attachment sued out and issued in
good faith upon any ground author-
izing an attachment against a resi-
dent of the county, and the summons
is duly served, such justice thereby
obtains jurisdiction over the person
of the defendant, and may proceed
to personal judgment against him,
though no property is seized or held
under the attachment. Collins v.
Bingham Brothers.

The mere fact that an attachment
before a justice of the peace was vol-
untarily discharged on motion of the
plaintiff does not authorize a review-
ing court to assume that the order
was obtained fraudulently or not in
good faith and that the affidavit was
insufficient and untrue, so as to de-
prive the justice of jurisdiction to
proceed to judgment therein. Ib.
A claim for coal used for domestic
purposes is within the term "neces-
saries," as used in Sec. 6489, Rev.
Stat., authorizing attachment in such


Where the affidavit for attachment
states that the claim was for coal
sold and delivered, and also states
that it was for necessaries and no
statement, affidavit or finding ap-
pears denying the same or in contra-
diction thereof, judgment will not be
reversed upon the statement of coun-
sel to the court on review that the
coal was for fuel fo. a boiler belong-
ing to the equipment of an oil lease.
Unless it otherwise appears in the
record, it will be presumed that the
coal was furnished for domestic pur-

See also APPEAL


Rule in fixing the amount of fees
to be allowed counsel for general
creditors for contesting chattel mort-
gages of an insolvent firm in the
hands of a receiver. Ohio Valley
Nat. Bank v. Cummings.

Attorneys-Bills of Exceptions.


Reasonable attorney fees may be
allowed counsel for the general cred-
itors of an insolvent partnership in
the hands of a receiver for services
in an action whereby certain chattel
mortgages, given by one partner in
the firm name without the knowl-
edge of the other, before the appoint-
ment of the receiver, were declared
invalid and a fund crated for dis-
tribution among general creditors.

When an attorney, while conduct-
ing a transaction for his client, ac-
quires such knowledge as would be
a breach of professional confidence
for him to disclose and he is subse-
quently employed by another person,
the latter is not chargeable with the
knowledge thus acquired and pos-
sessed by the attorney. Wright v.
Attorney fees may be allowed in
cases for exemplary damages, that
is, when there is malice, insult, op-
pression or moral wrong, or wan-
tonness, which is equivalent to mal-
ice, but such damages cannot be al-
lowed as part of the compensatory
damages in actions for personal in-
juries. Ashtabula Rapid Transit Co.
v. Stephenson.



A sale made by an auctioneer can
be made as binding as any other con-
tract, but to recover thereon it is es-
sential that sufficient proof be offered
to show that a bid was made and the
property "knocked off" to the bidder,
that the bid was accepted and the
property sold. Andrews v. Watson.

Evidence that an auctioneer at a
sale announced that forty shares of
stock of a fair association would be
sold in lots of ten shares with the
privilege of as much as the pur-
chaser desired, is competent as bear-
ing on the quantity sold, in an ac-
tion for damages for breach of con-
tract in that the purchaser refused
to take more than ten shares, where
it appears that the announcement
was made in the presence or hearing
of the purchaser.




A member of a beneficial associa
tion after being illegally expelled
therefrom cannot stand by and neglect
and refuse to perform any of his
duties for an unreasonably long time
and still sustain such standing in
the order as to entitle his beneficiary
to collect the money due thereon.
Dimmer v. Supreme Council Catho-
lic Knights.

When such a length of time has
elaspsed that all reasonable men
would agree that it was a reasonable
or an unreasonable length of time,
the question becomes a matter of
law for the determination of the
Where a member of a fraternal,
beneficial association was expelled,
did nothing devolving upon him as
a member for a period of about three
years, he may be deemed, as a matter
of law, to have acquiesced in his ex-
pulsion, thereby defeating any re-
covery by his beneficiary.


Cognovit notes should be very
strictly construed and under the
warrant of attorney to confess judg-
ment. a judgment can be rendered
only against the persons designated.
Mansfield Sav. Bank v. Post. 577
Where one of the four makers of
a note, claiming to be a surety, hav-
ing paid the balance due after the
death of two of such makers, both of
whom he alleges were principals as
to him, brings an action against the
administrator of one of the alleged
principals, and issue is joined as to
who were principals and who were
sureties, and the other remaining
maker, not being a party to the ac-
tion, is not incompetent under Sec.
5242, Rev. Stat., to testify as to the
relation existing between the de-
ceased and the plaintiff. Butt v.

See also ACCOUNTS.


An affidavit is no part of the record
and can only becom so by being
incorporated in a bill of exceptions.
A verbatim copy thereof, in the
record made by the clerk is insuffi-
cient. Brock v. State.

The taking of a bill of exceptions
in such case before a mayor or in a
police court is governed by the rules
in civil cases in the court of com-

Bills of Exceptions-Bonds.

mon pleas. Germantown v. Basore.


Where a bill of exceptions was lost
while in the hands of opposing coun-
sel to whom it had been submitted
in due time, as the statute requires,
and thereupon a bill of exceptions
prepared by such opposing counsel
was submitted as the true bill of ex-
ceptions and the court so found, and
signed the same, a motion in the re
viewing court, filed by counsel who
prepared the substitute bill, to strike
such bill of exceptions from the files
because not correct, will be overruled
where the affidavits filed in support
of such motion are not embodied in
a bill of exception. Chicago Cottage
Organ Co. v. Biggs.

Where a case is submitted in com-
mon pleas court on demurrer and an
agreed statement of facts, on error
to the circuit court, there should
be a bill of exceptions containing
the facts to be reviewed, or, if not,
such facts should be recited in the
journal entry. Darling v. Hippel.

A paper containing an agreed
statement of facts not included in a
bill of exceptions, and not identified
in the journal entries of the trial
court, cannot be considered by the
reviewing court.




The appearance of officers of a cor-
poration before the board of equali-
zation on certain occasions, to make
inquiries and having interviews
there, is not sufficient to require the
jury to say that their returns were
not false, where there is evidence
tending to show that such corpora-
tion had not proceeded with care and
diligence in ascertaining what was
required of them. In such case the
question should be submitted to the
jury. Toledo Bridge Co. v. Yost.

The jurisdiction of the state board
of equalization for banks is acquired
by a meeting on the third Tuesday
in June, the day specified in Sec.
2808, Rev. Stat., and every bank in
the state has notice of such meeting,
but where the board meets on that
day and adjourns without designat-
ing a time to meet again otherwise
than upon the call of its president or

secretary, the power of the notice in
the statute is lost and the board has
no jurisdiction to act in adding to
property returned until notice is
given to parties interested. Euclid
Ave. Sav. & Bànk. Co. v. Hubbard.

Notice is necessary in any tribunal
where rights are to be adjudicated
and courts will not impose a duty
upon party or a taxpayer which the
law does not intend that he shall
Reasonable notice as required by
Sec. 2804, Rev. Stat., is such notice,
under the circumstances as will be
likely to reach those interested in
the action of the board provided for
therein. Notice by publication is

A board of the character of the
state board of equalization, acting
in a judicial capacity, as it does,
must be governed by the require-
ments of the statutes. It has no
power beyond what is given by
The policy of the law as found in
title 13, chap. 4, Secs. 2804-2819, Rev.
Stat., relating to boards of equaliza-
tion, gives authority to none of the
boards therein mentioned to increase
the valuation of property without
giving the party to be affected notice
and opportunity to be heard, and
Sec. 2808, Rev. Stat., is within the
policy of this chapter and notice of
the meeting of such board is thereby
required to be given to the banks af-
fected by its operations.


Case in which the liability of the
surety company is not determined
nor limited by the difference be-
tween the penalty named in the
bond and the amount which would
have been due the original contrac-
tor, from the time of abandonment,
if he had completed the contract;
but where the amount remaining un-
paid upon a contract, together with
the penalty named in the bond, is
more than sufficient to complete the
work to be done under the contract,
the surety company is entitled to
subrogation accordingly. Higgins
v. Drucker.

A bond setting forth that the prin-
cipal therein has entered into a
"written contract to erect the build-
ing, and finish the carpenter work of
a certain brick store building, etc.,"
said contract being made a part
thereof as fully as if set forth at

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