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BURNS LAW-

The passage of a resolution of ne-
cessity, the adoption of an ordinance
authorizing the improvement and as-
sessing the costs, advertising for and
receiving bids and awarding the con-
tract does not amount to an entering
into a contract under the Burns law.
Braman v. Elyria.
731

CANCELLATION

MENTS-

OF INSTRU-

Equity will cancel and reform re-
lease obtained by fraud. Monnett v.
Railway.

CAPACITY TO MAKE WILL—

See WILLS.

CARNEGIE LIBRARY-

See PUBLIC LIBRARIES.

CARRIERS-

469

A master is not responsible for the
wrongful act of his servant unless
the act be done in the execution of au-
thority, express or implied, given by
the master. A railroad company is
liable for the willful wrong of its em-
ploye in expelling a trespasser from its
freight train while in motion, to his
injury, only upon proof that the act
was done by such employe, in the course
of his employment and within the
scope of his authority. What must
be shown to hold company for such
expulsion. Brakeman of freight train
has no implied authority to expel tres-
passer. Whistler v. Cowan.
511

CEMETERIES-

Conveyance for burial purposes not
creating condition precedent, vesting
fee simple in trustees. Church v.
Gamble.
295

CHANGE OF GRADE-
See STREETS.

CHANGE OF VENUE-

Section 6529 Rev. Stat., relating to
change of venue not applicable to
mayor's court. Kappes v. State. 111

CHARGE TO JURY-

Judgment of court upon requests
for verdict not set aside unless clearly
against weight of evidence. Gilligan
v. Royal Arcanum.
42

Ambiguous charge cured by explan-
ation. North Amherst Home Tel. Co.
v. Jackson..
89

Charge to jury should be considered
as whole. Peat v. Norwalk. 161

Charge requiring burden of proof
on defendant in will contest to show

འ་

Charge to Jury-Conflict of Laws.

testamentary capacity is improper.
West v. Koppenberger.

168

The court may properly refuse to
submit questions to the jury for an-
swer under Sec. 5201 Rev. Stat. when
the request therefor fails to contain
the condition that such questions need
only be answered in case a general
verdict is rendered.
Ib.

Instructions for verdict for defend-
ant proper when contributory negli-
gence is apparent from plaintiff's tes-
timony. Harpham v. Traction Co.
253

Giving correct and incorrect charges
upon same matter is prejudicial, it
being impossible to determine_which
the jury followed. Rapp v. Becker.
321

Charge that important item in will
contest is will itself is erroneous. Ib.
In an action for personal injuries
it is error to charge that physician's
bill paid by defendant is an element
of damages; or that an unemancipated
infant may recover for lost wages.
Bowe v. Bowe.
409

Charge excluding defendant from
reducing grade of crime from murder
to manslaughter is error. Munday
v. State.

CHARITIES-

a

712

The superintendency of a county chil-
dren's home is not a public office, but
mere employment, and the incum-
bent thereof is an employe and not
a public officer. Hence, a proceeding
in quo warranto to recover the posi-
tion from a wrongful incumbent can-
not be maintained. State v. McGon-
agle.

CHATTEL MORTGAGES-

685

Where chattel property is sold to
be paid for in installments, and under
condition that it shall belong to the
purchaser when the amount paid there-
for shall equal a certain amount or
the value of the property, the title
in the meantime, to remain in the ven-
dor, the provisions of Sec. 4155-2 Rev.
Stat. et seq., commonly called the con-
ditional sales law, apply. Vendor can-
not replevin property without return-
ing part of purchase money; chattel
mortgage does not affect vendee's
rights. Oral evidence competent to
show conditional sale. Richcreek v.
O'Donnell.

CITIZENS-

528

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CITY TREASURER-

See MUNICIPAL CORPORATIONS.
COLLEGES AND UNIVERSITIES-

Section 1536-933 Rev. Stat., applies
to "Toledo University." 97 0. L. 544
construed. Waddick v. Merrell. 437.
COMITY-

See CONFLICT OF LAWS.
COMMISSIONERS OF COUNTY-
See COUNTY.

COMPENSATION-

See COSTS AND FEES.

COMPENSATION FOR SERVICES-
See EXECUTORS AND ADMINISTRA-
TORS.

CONDEMNATION PROCEEDINGS-
See EMINENT DOMAIN.

CONDITIONAL SALES-

Where chattel property is sold to be
paid for in installments, and under
condition that it shall belong to the
purchaser when the amount paid there-
for shall equal a certain amount or the
value of the property, the title, in the
meantime, to remain in the vendor,
the provisions of Sec. 4155-2 Rev. Stat.
et seq., commonly called the conditional
sales law, apply. Richcreek v. O'Don-
nell.
528

Vendor cannot replevin property
without returning part of purchase
money; chattel mortgage does not af-
fect vendee's rights. Oral evidence
competent to show conditional sale.
Ib.
CONDITIONS-

Specific performance of lease re-
newal refused upon failure of lessor to
give notice prescribed in lease as con-
dition precedent to renewal. Linke
v. Walcutt.

10

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Section 3365-11 Rev. Stat. regulat-
ing the employment of conductors, etc.,
unconstitutional. Clev. C. C. & St.
L. Ry. v. State.

348
Section 3836-3 Rev. Stat., exempting
building and loan associations from
usury laws is constitutional. Brooklyn
352
Bldg. & L. Assn. v. Desnoyers.

An ordinance imposing a license tax
upon the seller of goods manufactured
in another state is a burden upon in-
terstate commerce and in conflict with
Sec. 8, Art. 1 U. S. Const. Julius,
In re.
423
The act of April 25, 1898 (93 0. L.
426; Sec. 1230b Rev. Stat.), relating
to fees and compensation of sheriff
in counties of 22,500 or more, is in
conflict with Sec. 26, Art. 2 of the
constitution. Childs v. Perry. 543

Ordinance imposing graduated license
fee upon owners of vehicles using the
streets is not unconstitutional. Ster-
ling v. Bowling Green.
581

The act of April 19, 1904 (97 O. L.
87), relating to local option elections,
is not in conflict with Sec. 1, Art. 5
of the constitution. Jeffrey v. State.
591

An ordinance prohibiting the convey-
ance of garbage through a city's streets
except by the city contractor, and plac-
ing garbage upon any private property
is unconstitutional. Bauer v. Casey.

598

Inheritance tax law (97 O. L. 398)
not a taking of property without due
process of law. Hostetter v. State.
702

Act of April, 1904, entitled an "Act
for the relief of county treasurers and
county commissioners," is not uncon-
stitutional. State v. Gibson. 781

CONTEMPT

Court cannot imprison party dis-
obeying order made under Sec. 5483
Rev. Stat. as for contempt. First
Nat. Bank v. Clauss.

CONTRACTS-

107

Parol evidence is inadmissible to
establish parol modification of written
contract, when. Toledo Paper Box
Co. v. Paper Co.

27

Breach of former contract no defense
to claim for damages for refusal to
pay for goods delivered in accordance
with the terms of contract therefor.
Contractors & B. Sup. Co. v. Cement
Co.
43

Time is of essence of contract for
manufacture and sale of goods.
Ib.

Vendor may rescind for vendee's
failure to pay for installment deliveries.

Ib.

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Valid contract between municipality
and street railway company to grant
franchise to lowest bidder. Hattersly
v. Waterville.
226

Franchise relates back to its ac-
ceptance after publication.
Ib.

Measure of damages for breach of
contract for work and labor. Kneipper
v. Richards.
245

Evidence tending to establish terms
of incomplete memorandum agreement
is improperly excluded.
Ib.

Six months' lease at monthly rental
is entire contract and will support but
one breach and recovery only. Burck-
hardt v. Greene.
315

Part performance must relate strict-
ly to contract to take it out of the
statute.
Ib.

Facts not constituting part perform-
ance SO as to take contract out of
statute of frauds.
Ib.

In an action for personal injuries,
a minor plaintiff cannot recover for
mother's services as nurse, in the ab-
sence of special contract between them,
or proof of manumission. Neither can
such minor recover for wages when not
emancipated. Bowe v. Bowe. 409

Insurance policy issued by foreign
company upon application made, policy
delivered, and premiums paid in this
state, is an Ohio contract. Plaut v.
Insurance Co.
499

A contract by a prospective em-
ploye with a railway company, waiv-
ing damages for personal injuries. is
pot within the inhibition of Sec. 3365-

Contracts-Counties.

20 Rev. Stat., if the injury occurred
before the execution of the contract;
the right to damages which cannot be
released is one thereafter arising. Re-
employment of injured employe by rail-
road company not against public policy.
A contract of employment in no stipu-
lated capacity, for no stated period,
except such as may be satisfactory to
the employer, and for no designated
wages, does not imply mutuality.
Bowers v. Railway.

518

Public office is never created by
contract. State v. McGonagle. 685
Clerk's certificate under Burns law
if filed before contract signed and or-
dinance passed. Braman v. Elyria.
731

When the present capacity of an oil
well was only fifty-three barrels a day,
which fact was known to vendor but
unknown to vendee, and the former in
response to an inquiry from the latter
as to its present capacity, replied, "I
had run two one-hundred barrel tanks
a day," which was the capacity of the
property several weeks previous, and
vendee believed from vendor's conduct
and words that he was stating the
present capacity of the property, and
acted upon it to his prejudice, the ven-
dor's reply and conduct, in such case,
is tantamount to a fraud upon vendee
which will entitle him to relief; and
vendor will be estopped from resorting
to the literal meaning of his words to
escape liability to the vendee. Jones
v. Draper.

785

A contract made by an agent rep-
resenting two adverse principals, who
fails to disclose to each his inconsistent
position, is void.
CONVERSION-

Fb.

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solved by the appointment of a receiver.
Monnett v. Railway.
469

Foreign corporations engaged in in-
terstate commerce business, voluntarily
complying with Secs. 148c and 148d
Rev. Stat., are entitled to exemption
from attachment under the provisions
of Sec. 5521 Rev. Stat. upon the
ground that they are foreign_corpora-
tions. Armour Car Lines v. Fruit Co.
496
COSTS AND FEES-

Executor entitled to reasonable coun-
sel fees for successfully defending will,
notwithstanding judgment was based
on compromise. Union Sav. Bank &
Tr. Co. v. Smith.
317

Executor not entitled to statutory
commissions under Sec. 6188 Rev. Stat.
Residuary real estate is sold by liens.
Ib.

on

Jurisdiction of common pleas to en-
ter judgment for costs error to
justice to discharge an attachment.
Foote v. Commercial Co.
378

Officer cannot exact compensation
from county except under statutory
authority Probate judge not en-
titled to compensation for appointment
of county treasury examiners under
Sec. 547 Rev. Stat. Costs and fees
provided for in Sec. 719 Rev. Stat.,
are only compensation authorized in
lunacy inquests. Probate judges' com-
pensation for conviction in truancy
cases is not fixed by Sec. 6470 Rev.
Stat. Millard v. Conrade.
445

A sheriff is not entitled to pound-
age on sheriff's sale under mortgage
foreclosure proceedings where the
property is bid in by plaintiff for less
than the amount of her mortgage lien
and where the purchase price is paid
for in such lien in part. Childs V.
Perry.
543

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Action by administrator either in
common pleas or probate court to sell
real estate is a civil action, of which,
upon appeal, the common pleas has
original jurisdiction. Tidd v. Bloch.
113

The probate court has exclusive
original jurisdiction, by virtue of Sec.
524 Rev. Stat., to determine what
credits shall be allowed or disallowed
to the administrator, and what unse-
cured claims shall be paid by him.
Ib.

A state court has jurisdiction to
construe Sec. 5880 Rev. Stat. in action
to recover balance of purchase price
of vessel, having proceeds thereof and

all parties before it to direct distribu-
tion thereof. Shailer v. Hanion. 120

Federal courts have exclusive juris-
diction of actions to enforce liens of
water crafts under Sec. 5880 Rev. Stat.
State courts have no jurisdiction there-
of.

Ib.

Jurisdiction of probate court is not
interferred with by garnisheeing legacy
in hands of administator. Orlopp v.
127
Schueller.
Common pleas cannot order adminis-
trator to pay money into court in garn-
Ib.
ishee proceedings, when.

Pennsylvania statute will be en-
forced in Ohio for negligently caus-
ing death of citizen of that state.
Schell v. Iron Sheet & Tube Co. 209

Circuit court cannot reverse judg-
ment discharging accused in criminal
case. State v. Hance.
273

President of council as acting mayor
of village cannot try misdemeanor

case.

Ib.

Common pleas court not authorized
by Sec. 6733 Rev. Stat. to discharge
attachment; limitation of jurisdiction
in such case. Foote v. Commercial
Co.

378

Right to remove cause to federal
court properly a question of jurisdic-
tion. Jurisdiction in equity to quiet
title. Monnett v. Railway.

469

Application for the widow's year's
allowance must be to the probate court,
which has original and exclusive jur-
isdiction; such application cannot be
made to the circuit court. Moore v.
Idlor.
502

Court will correct errors in punc-
tuation in statute. An ordinance ap-
plying to territory within and with-
out the corporate limits is only in-
operative as to outside territory. Chit-
tenden v. Columbus.
531

An adjournment, after the evidence
is all in, of a homicide case for eigh-
teen days, separation of jury and hear-
ing of arguments and sentence by an-
other judge, is irregularity, entitling
prisoner to reversal and new trial.
Mason v. State.

535

Judicial power is not conferred upon
a city auditor and chief of police by
an ordinance which provides that if the
former is not satisfied with the descrip-
tion of vehicles furnished by an ap-
plicant for a vehicle license, the matter
shall be referred to the latter for ex-
amination and report. Such provision
does not take away the right to test
the matter in the courts. Sterling v.
Bowling Green.
581

In a proceeding by a council to ap-
propriate for the extension of a street.
it is necessary to pass the preliminary

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