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Concealing stolen goods-Continuance.

If a person knowing the place of
deposit of stolen goods should pre-
pare himself with materials to cover
the same so that they might not be
discovered, and should set out for
the place of deposit with such ma-
terials and with a purpose of there-
by covering and concealing such
stolen property, but the stolen prop-
erty should be discovered and re-
covered before such person had
reached the place of deposit, the fact
that he had done something designed
and intended to conceal the goods,
would not be sufficient to constitute
an offense under the law.
Ib.

CONDITIONAL SALES-

See CHATTEL MORTGAGES; LIENS.

CONSTITUTIONAL LAW-

Section 19, Art. 1, of the bill of
rights, and the fifth and fourteenth
amendments to the constitution of
the United States, relating to at-
tempts to take property and trans-
fer it to a private corporation with-
out the consent of the owner, refer
to the right of eminent domain and
have nothing to do with the impo-
sition of a fine, or the subsequent
disposition of it, by virtue of police
power. Beamer v. State.

4

The circuit court declines to rec-
ognize the reversal without report,
of State v. Pohling, 1 Circ. Dec. 271
(1 R. 486), in which case the circuit
court held an act of the legislature
void, as authority in support of the
constitutionality of a similar act,
in view of the fact that the case may
have been reversed on other grounds.
State v. Fangboner.
801

The act of the general assembly,
passed April 27, 1896, 92 O. L.. 748,
which provides that in all counties
which by the federal census of 1890,
have a population of 30,617, nor
more than 30,900, anv money aris-
ing from the tax on oil wells drilled
or hereafter to be drilled, shall be
collected by the treasurer of the
county as other taxes are, and be
returned to the township treasurer,
where said oil wells are located, in
any sum not exceeding $2,500 per
annum, to be used as a road fund in
any such township, is unconstitu-
tional.

Ib.

Courts will not pass upon the con-
stitutionality of laws unless neces-
sary to do so in the decision of cases
before them. Therefore, the circuit
court will refuse in this case to pass

upon the constitutionality of Secs.
582, 583 and 584, Rev. Stat., as
amended April 19, 1898, 93 O. L. 316,
relating to the subject of attach-
ments, in a county other than Cuy-
ahoga or Franklin. Collins v.
Bingham Brothers.
825

See also ANIMALS; HIGHWAYS;
RAILROADS; STATUTES; SCHOOLS.

CONTRACTS-

V.

Knickerbocker
Athletic Co.

Extension by agreement of time
of payment of principal and inter-
est of bonds, secured by mortgage,
in consideration that no dividend
would be declared and certain im-
provements made, is based on a good
consideration and bars suit brought
before expiration of time extended.
Chester Park
842
A successful bidder for a munic-
ipal contract, upon being awarded
and voluntarily executing the con-
tract, into which is incorporated the
provisions of a statute, that labor
to be performed under the contract,
must be paid for by the contractor
at the going rate, is bound by the
terms of the contract, although the
statute itself may be declared un-
constitutional. Clements Brothers
Construction Co. v. Cleveland. 844

COSTS-

Where both parties appeal from
a judgment of the court of common
pleas, and the circuit court makes
substantially the same order as was
made in the court below, each party
should pay his own costs in the
circuit court; and the plaintiff, judg-
ment having been in his favor in
the court of common pleas, should
recover his costs in that court.
Turner v. Holly.
738

See also FEES.

CONTEMPT-

See INJUNCTION.

CONTINUANCE-

It is within the discretion of the
court to refuse to grant a motion to
continue the hearing of a proceed-
ing to appropriate land a sufficient
time to give the railroad company
an opportunity to take the deposi-
tion of the land owner, who is not
present at the trial and is without
the county. Pittsburgh & W. Ry.
Co. v. Perkins.
676

Contracts-Corporations.

CONTRACTS-

Averment sufficient to entitle
plaintiff to recover under the rules
laid down in Ashley v. Henahan, 56
Ohio St. 559, especially where no
motion was made to make more
definite and certain. Wicker v.
Messinger.
425

Where an erroneous construction
of a public contract is given by an
engineer, and classification of the
work is made upon an erroneous
basis, a court of equity has power
to correct such errors in a proceed-
ing to enjoin payment under the
contract. State V. Cuyahoga Co.
(Comrs.).
328
A contract for services cannot be
enforced by injunction. Therefore,
where lessor covenanted, in a lease
of a certain amount of floor space,
to furnish horse-power, lessee is not
entitled to an injunction to restrain
lessor from refusing to furnish the
power. In such case, the proper
remedy is an action at law. Sipe
& Sigler v. Bartlett.
226

A single action at law for damages
for the violation of a contract for
rent and use of power is sufficient
and an injunction will not be au-
thorized to relieve from a multi-
plicity of suits.
Ib.

In a contract between a subscriber
and a corporation for shares of the
capital stock in the company, which
provides that the subscriber shall be
given a position in the company that
will pay him two dollars a day or
better. and on failure to comply
therewith, the subscription to be null
and void, such stipulation for em-
ployment contemplates that the sub-
scriber will become a stockholder
before he will be employed, and
that compliance by the corporation
with the condition is not to be re-
garded as a condition precedent to
his becoming a member of the cor-
poration. Stunt v. Tube & Steel Co.
170

A stipulation in a contract with
a subscriber to the capital stock of
a corporation which provides that
the subscriber shall receive, in ad-
dition to his stock shares, a posi-
tion in the company as employee,
and will pay him a fixed sum per day,
is a condition subsequent, and the
nonperformance of the condition will
not work a dissolution of the rela-
tion of the subscriber to the com-
pany as a stockholder in the cor-
poration.
Ib.

A subscription to the stock of the
corporation on such a condition for
employment is an agreement com-
bining two contracts; one the con-
tract of subscription; the other an
ordinary contract of the corporation
to perform the specified act of giv-
ing the employment. The subscrip-
tion is valid and enforceable,
whether the condition as to employ-
ment is performed or not.
Ib.

A contract with a subscriber to
the capital stock of a corporation
which attempts to secure advantages
and privileges not common to all
other stockholders or subscribers,
and without their knowledge and
consent, is contrary to public policy,
and can have no effect to limit in
any way his contract of subscrip-
tion, and in so far as it attempts to
do so will be treated as a fraud upon
other stockholders not consenting
thereto.

Ib.
Compensation for services of a
son after he becomes of age, and
living at home, will not be presumed.
nor will an agreement be implied to
pay for the same, in the absence of
such circumstances as celarly raise
the inference that the parties so in-
tended. Ward, Est. of.
44

A railway company is a public
corporation and when it undertakes
to make a contract that will exon-
erate it from negligence, whether
that negligence consists in unsuit-
able rules or in other matters, it is
against public policy. It is, there-
fore, for the jury to say in such
case whether the railway company
was guilty of negligence or not.
The mere fact that it complied with
established rules will not relieve it
from liability. Cleveland, C. C. &
St. L. Ry. Co. v. Hudson.
661
If, when the board of education
of Cincinnati, when advertising for
bids for school supplies, thereby re-
serve the right "to reject any and all
bids," a bidder whose bid is rejected
has no right to the contract. State
v. Board of Ed.
735

See also BONDS; CARRIERS; EVI-
DENCE; MINES AND MINING; SALES;
WATERS AND WATERCOURSES; WILLS.

CORPORATIONS-

A consolidation of street railway
companies, under Sec. 3381, Rev.
Stat., must be effected with due re-
gard to the rights of all persons
having an interest in the stock of
the old companies. This section

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Corporations-Courts.

not intended to give directors of the
old companies, or its registered
stockholders, the power to deprive an
assignee of stock not transferred on
the books of the company of his equi-
table rights therein. Cleveland
City Ry. Co. v. First Nat. Bank.

269

A consolidated street railway com-
pany, under Sec. 3381, Rev. Stat.,
succeeds to all the franchises, rights
and privileges of the constituent com-
panies out of which it is formed and
incurs all the liabilities of each.
Ib.

While a corporation is composed
of individuals who are natural per-
sons, the combination of such per-
sons in a corporate capacity as an
official person is entirely separate
and distinct from the individual
members thereof. Hamilton v. Coal
Co.
637

The action of four directors, con-
stituting a majority of the board of
directors of a corporation, in voting
a sum of money upon an alleged in-
debtedness to one of their number,
without whose vote the resolution
could not have been passed, and sub-
sequently endeavoring to change
certain accounts as stated by a ref-
eree, is sufficient to justify the in-
terference of a court of equity and
the appointment of a receiver upon
petition of a stockholder, to wind up
the affairs of the company.
Ib.
The property of a corporation is
a trust fund for the benefit of its
creditors and stockholders, to be
used only in the attainment of the
objects for which the corporation is
created. Its officers are trustees
and deal with such funds in their
fiduciary capacity.
Ib.

The legal title to stock must be
transferred on the books or by as-
signment of certificate, although the
equitable title
may be otherwise
transferred. Andrews v. Watson.
686

COUNTY COMMISSIONERS-

Section 917, Rev. Stat., as amended
1900, 94 O. L., 000, requiring county
commissioners to make out an item-
ized and detailed report of their
financial transactions showing to
whom and for what purpose each
item is paid, is not sufficiently com-
plied with where the report sets out
amounts in gross. State v. Fayette
Co. (Comrs.).
316

55 O. C. D. Vol. 12

Mandamus will lie to compel
county commissioners to make the
necessary itemized and detailed re-
port of their financial transactions
of the preceding year as required by
Sec. 917, Rev. Stat., as amended 94
O. L., 000, on the application of pub-
lishers of newspapers having the
necessary circulation to entitle them
to such publication, and as taxpay-
Ib.

ers.

See also BRIDGES; HIGHWAYS.
COURTS-

An order of the probate court
removing a trustee and requiring
him to convey to his successor prop-
erty without the state, vested in him
by the will independently of his let-
ters as executor and trustee, is a
nullity and entirely ineffectual, so
far as the conveyance of the prop-
erty is concerned and cannot be pre-
judicial further than to cast a cloud
over the title of the trustee. Staf-
ford v. American Missionary Ass'n.
442
Where an executor and trustee, in
an examination upon an application
for his removal, was asked by coun-
sel for complainants to produce a
certain letter which he had written
in reference either to his adminis-
tration of the affairs of the estate
or to the action of the court upon
some matters pertaining to the es-
tate, and he declined to do so, on
the ground that it was a privileged
communication, and upon being or-
dered by the court to produce the
letter, and upon his still refusing,
the court announced that he did not
care to hear further evidence, but
would remove such executor and
trustee, the order so made was upon
the court's own motion, in the in-
terests of the estate, and within his
discretion and is not subject to re-
view.
Ib.
Authority is vested in the probate
court under Sec. 6334, Rev. Stat., to
proceed upon its own motion to re-
move a trustee for neglect of duty,
incompetency or fraudulent con-
duct, or because the interest of the
trust property requires his removal,
just as complete and exclusive and
as free from restriction as is con-
ferred by Sec. 6017, Rev. Stat., to re-
move an executor.
Ib.

Section 524, Rev. Stat., giving the
probate court exclusive jurisdiction
to grant and revoke letters testa-
mentary and of administration, con-

Courts-Covenants.

COURTS-Continued.

fers exclusive and final jurisdiction
upon the probate court as to such
matters, in the strict sense of the
term and not simply exclusive orig-
inal jurisdiction.

Ib.

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COVENANTS-

The principle that persons who
acquire title to land are bound by
covenants running with the land, is
not applicable to a mining lease in
such manner as to render an as-
signee thereof responsible for the
breaches of his assignor. Unless
otherwise expressly agreed in the
transfer, the latter is liable only for
his own defaults. Allison v. Luh-
rig Coal Co.
504
When the value of dower is de-
termined in a gross sum in an ac-
tion for dower and assessed as a lien
upon lands, and it is ordered that
upon default of payment the lands
be sold as upon execution, this is
equivalent to an eviction and con-
stitutes a breach of warranty.
Weyer v. Sager.
193

A land owner may pay the sum
assesed as the value of a dower in-
terest and under a covenant against
incumbrances may recover the ex-
pense incurred in defending the ac-

tion for dower and the value of the
dower interest which he was required
to extinguish; nor is the amount
found by the court in the action for
dower necessarily the value of the
dower interest to be recovered by
the purchaser.
Ib.

Upon suit being brought upon a
paramount cl:.im against one who is
entitled to the benefit of any of the
covenants for title, he can, by giving
proper notice of the action to the
party bound by the covenants, and
requiring him to defend it, relieve
himself of the burden of being ob-
liged afterwards, in an action on
the covenants against the covenan-
tor so notified, to prove the validity
of the title of the adverse claimant.
By such notice the covenantor be-
comes in effect a party to the action
and is thereby estopped by the judg-
ment.
Ib.

To deprive the warrantor of the
right to show title, the notice to the
covenantor, requiring him to defend
the title of the party sued upon a
paramount claim, should be une-
quivocal, certain and explicit, and
should demand that warrantor fur-
nish testimony, defend the suit or
aid in the defense; and should be
given so as to afford the covenantor
a full, fair and previous opportunity
to meet this controversy.

Ib.

In an action for breach of cove-
nants against incumbrances and gen-
eral warranty, a petition, which
shows that at the date of the cove-
nant there was an outstanding con-
summate dower interest not ad-
measured, shows that the covenant
against incumbrances was broken
as soon as made and states a cause
of action for nominal damages, of
which the common pleas has exclu-
sive original jurisdiction. and
against which demurrer dces not
properly lie; and it is not necessary
for the plaintiff to show that he dis-
charged the incumbrance by pay-
ment to the person entitled to dower.
Ib.

Where an allotment company pro-
Ivided in the sale of its lots where
whiskey might be sold and also
where it should not be sold under pen-
alty of reversion, the condition in
the deeds prohibiting the use of the
land for such purposes is not waived
by the violation of such condition
when the violation is only such as
is necessary, and is confined to a cer-
tain locality, and thereby keeps bus-

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Covenants-Debtors and Creditors.

iness away from residence property,
although the violation if carried to a
certain extent, would estop the com-
pany from denying this privilege to
all. Johnson Co. v. Covats. 166

CRIMINAL LAW-

An allotment company is not es-
topped to deny the right to sell
whisky to the purchaser of one of
its lots under a deed containing a
condition that no whisky shall be
sold thereon by the fact that it per-
mitted the purchaser of another lot
under a like deed and condition to
sell thereon while he was building
a block in another section of the al-
lotment, where such sale would be
permitted.
Ib.

See also CUSTOM AND USAGE.

CROPS-

See JUDICIAL SALES.
CUSTOM AND USAGE-

While a custom among contract-
ors of helping themselves to each
others' material when a small quan-
tity is needed to complete a job, is
unreasonable and not binding as a
rule of property, it is competent for
the purpose of tending to prove a
lack of criminal intent in taking
such material. Kuhl Art. Stone Co.
177
v. Mack.

DAMAGES-

Where a person ejected from a
street car produces no medical tes-
timony to the fact of his being ser-
iously injured, and the testimony of
the railway physician showed the
injuries to have been very slight,
and it appears that plaintiff was de-
tained from his work but a few days
and was able to go to Colorado, and
later to England, the court directed
reversal of judgment of $550 unless
plaintiff consented to a remittitur of
$350. Cleveland City Ry. Co. v. Roe-
buck.
262
The measure of damages, in an
action to recover for the refusal of
the purchaser of certain shares of
stock to pay for the same, where
there was no delivery of the stock
or transfer on the books of the cor-
poration by delivery of the certifi-
cate thereof, or tender made prior
to the commencement of the action,
is the difference between the con-
tract price and the market value of
the same, and not the sum stipulat-

ed to be paid for the stock. An-
drews v. Watson.
686

Where the purchaser repudiated
the contract and thereby waived the
straight performance thereof, the
seller is entitled to recover the dif-
ference between the market value
and the contract price, as damages
for the breach of the contract. Ib.

Where a private switch track,
used by a manufacturing company,
is subsequently appropriated by a
railroad company and converted in-
to a main track, and the grade rais-
ed about two feet, thereby inter-
fering with ingress and egress to
abutting property, the measure of
damages to such property, purchas-
ed prior to the change, is not re-
stricted to its rental value, but
should include any substantial in-
jury to the land itself which may
be shown to exist. Evidence of the
value of property prior to and after
the change is, therefore, admissible.
New York P. & O. R. R. Co. v. Stub-
bings.
699
Where, in such an action, the
charge of the court is not definite as
to the measure of damages, in that
it does not go far enough, but so
far as it goes is right, it is the priv-
ilege of the parties desiring more
explicit instructions to ask for
them, and failing to do so, the fail-
ure of the judge to charge is not
ground for reversal.
Ib.

See also ASSESSMENTS; MALICIOUS
PROSECUTION; STREETS.
DEBTORS AND CREDITORS-

A creditor of the beneficiary of
an insurance policy obtains no prior-
ity over other general creditors by
bringing an action in the nature of
a creditor's bill against the bene-
ficiary in question and the insur-
ance company to subject the certifi-
cate and proceeds to the payment
of his claim before the money
reaches the beneficiary. Prior to
that time, the action is premature.
Klinckhamer Brew. Co. v. Cassman,
141

The object of Secs. 3162 and 3166.
Rev. Stat., relating to compromise
by partners and joint debtors, is to
mitigate the rigor of the common
law in two respects: First, to
change the rule that the discharge
and release of one partner from a
partnership liability inured to the
benefit of other partners and dis-
charged them. Second, to mitigate

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