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.
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.
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, any 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.
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
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. & Sigler v. Bartlett.
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.
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.
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
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.
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.
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-
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. The jurisdiction of a state court to declare a trust in and to quiet title to real estate, at the suit of a person in possession against a bank- rupt and his trustee in bankruptcy, is not divested by the bankrupt act of 1898. Reinhard v. Keinhard. 433
An action by a trustee in bank- ruptcy to set aside a fraudulent transfer of property made by a bankrupt to a third party, before the institution of proceedings in bank- ruptcy, cannot be brought in the federal court, but must be brought in the state court, except by de- fendant's consent. Nye v. Hart.
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 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 Ib. the purchaser.
Upon suit being brought upon a paramount claim 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.
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- vided 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-
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
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.
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-
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,
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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