Chattel Mortgage Brokers-Clerk of Council.
CHATTEL MORTGAGE BROKERS-Continued.
than as brokers, in the business of loaning money upon mort-
gages on personal property. See French v. City, 160.
A parent may be guilty of the crime of failing to provide for his
minor children, defined by act of April 28, 1908 (99 O. L., 228),
although he is a resident of another state during time laid in
the indictment, and the venue of the crime is in the county
where the child is at time of complaint. See State v. Sanner,
393.
An action to recover for breach of written contract, in which
default judgment is rendered by a justice of the peace, and
which is appealed to common pleas court and determined,
cannot under Section 5226, Revised Statutes, be appealed to the
circuit court for a trial de novo. See Winters v. Ruff, 257.
On error in the circuit court to the overruling of a motion for
new trial on the ground of inadequacy of damages in an action
for personal injuries, the circuit court may grant a new trial
on the ground that the verdict is not sustained by sufficient
evidence. See Light Co. v. Mason, 463.
An order of the court of common pleas granting a temporary
injunction, is not either a judgment or a final order which may
be reviewed by the circuit court on petition in error, when. See
May Co. v. Bailey Co., 471.
Where a corporation is formed for the purpose of transporting
gas to certain named cities, towns and villages, and to others,
it is not one of the charter obligations of such corporation to
furnish gas to all of such cities, towns and villages. See Gas
Co. v. City, 33.
Where the statute prescribes no person to execute a contract for
the publication of legal notices, in behalf of a municipal corpora-
tion, it is consistent with Section 1536-653, Revised Statutes,
for the council to authorize the clerk thereof to execute such
contract. See McCormick v. City, 246.
Collateral Heirs-Commissioners of County.
Under Section 6135, Revised Statutes, after the death of the
widow, who is the sole heir and next of kin of the deceased
husband, there is no beneficiary for whose benefit an action for
the wrongful death of the said deceased, commenced by the
widow as administratrix, can be maintained, although he had
collateral heirs, and she had a mother, who survive. See Doyle
v. Railroad Co., 184.
A common carrier, being the owner of tracks, is liable to its
passenger for injury received in collision between its car and
car of another carrier who has the joint use of the tracks, as
result of the negligence of latter carrier-In such case the lia-
bility of both companies may be enforced in same suit. See
Light Co. v. Montgomery Co., 426.
A mortgagee, although he was not a party to and had no notice of
the appraisement and award, in the absence of fraud or collusion,
is bound by the award of appraisers provided for in a fire in-
surance policy, to which is attached a "mortgage clause," which
makes the loss payable to the mortagee as his interest may
appear. See Brewing Co. v. Insurance Co., 1.
COMMISSIONERS OF COUNTY-
That part of Section 4903, Revised Statutes, which provides for
compensation to county commissioners as directors of highways,
is abrogated by act of April 21, 1904 (97 O. L., 254). See Thorn-
iley v. State, 108.
Section 1166, Revised Statutes, does not require the county com-
missioners to cause plans and specifications to be made for all
road improvements. See Hibbard v. Biddle, 181.
The fees of the sheriff of a county to which a criminal prosecu-
tion has been removed for trial, for services rendered in such
case, should be allowed and paid by the commissioners of the
county in which the indictment was found. Seee Thurlow v.
Board, 447.
Commissioners of Park-Common Law.
COMMISSIONERS OF PARK-
The provision of Section 3 of act of May 9, 1908 (99 O. L., 440),
relating to park commissioners, that all questions shall be de-
cided by yea and nay vote entered on the journal, is mandatory.
See Henderson v. City, 27.
COMMISSION FOR RAILROADS-
The common law forbids that an officer shall make a prospective
appointment to fill an anticipated vacancy in an office the term
of which cannot begin until after his own term has expired-This
rule is neither abrogated nor modified by Section 1 of the act
of April 2, 1906 (98 O. L., 342), creating a railroad commission,
and requiring the governor to appoint in January, 1909, and
biennally thereafter, one commissioner. See State v. Sullivan,
79.
The ruling in Lemmon v. State, 77 Ohio St., 427, does not apply to
counties which do not contain a workhouse. See State v.
Wirick, 343.
Where a passenger of a common carrier which owns the tracks is
injured by the negligence of a carrier which is admitted to the
joint use of such tracks, the liability of owning company for
breach of contract of carriage, and the other for negligence, may
be enforced in same suit-In such case the facts should be so
determined that the liability may ultimately rest on the negli-
gent carrier. See Light Co. v. Montgomery, 426.
The common law forbids that an officer shall make a prospective
appointment to fill a vacancy in an office, the term of which
cannot begin until after his own term has expired-Statutes are to
be construed with reference to the common law, and the legisla-
ture will not be presumed to have intended a repeal of the com-
mon law, unless the language clearly expresses such intention,
See State v. Sullivan, 79.
The common law rule that any agreement between the holder of
a note and the principal, varying the contract of the surety, etc.,
without the latter's consent, releases the latter, is abrogated by
Section 3175j, Revised Statutes. See Richards v. Bank Co., 348.
Common Pleas Court-Conclusive Evidence.
An action to recover for the breach of written contract in which
default judgment is rendered by a justice of the peace, and
which is appealed to the common pleas court and determined,
cannot under Section 5226, Revised Statutes, be appealed to the
circuit court for a trial de novo. See Winters v. Ruff, 257.
On error in the circuit court to the overruling of a motion for
new trial on ground of the inadequacy of the damages in an ac-
tion for personal injuries, the circuit court may grant a new trial
on the ground that the verdict is not sustained by sufficient
evidence. See Light Co. v. Mason, 463.
An order of the court of common pleas granting a temporary
injunction is not either a judgment or a final order which may
be reviewed by the circuit court on petition in error, when. See
May Co. v. Bailey Co., 471.
COMPENSATION OF DISAPPOINTED DONEE-
Lands devised to and rejected by a refractory donee amenable
to the equitable doctrine of election, do not become intestate
property, but they pass under the will to the disappointed donee,
to such an extent as may be necessary to compensate him. See
Bebout v. Quick, 196.
COMPENSATION TO COUNTY COMMISSIONERS-
That part of Section 4903, Revised Statutes, which provides for
compensation to county commissioners as directors of highways
is abrogated by act of April 21, 1904 (97 O. L., 254), providing
a salary and limiting the compensation to county commission-
ers. See Thorniley v. State, 108.
COMPENSATORY DAMAGES-
In an action for ejectment from a street car, it is error for the
court to instruct the jury that if ejectment was not justified, but
was without malice or insult, compensatory damages only could
be awarded. See Power Co. v. Matheny, 204.
The consideration clause in a deed is conclusive for the purpose
of giving effect to the operative words, but for every other
purpose it is open to explanation by parol proof, and is only
prima facie evidence of the consideration. See Shehy v. Cun-
ningham, 289.
Condemnation-Consideration for Note.
Where, in an action for compensation for land wrongfully taken
by a municipality, it appears that the owners tendered a deed
and offered to allow, upon judgment for value of the land, an
order that they should convey title, the case is one to recover
value of land, and not for condemnation within meaning of
Section 1536-293, Revised Statutes; and when such judgment is
final, under Section 1536-302, Revised Statutes, it is the duty of
the trustees of the sinking fund to pay, and on refusal to do so
mandamus will lie. See State v. Harrison, 98.
In an action for ejectment from a street car, evidence that pas-
sengers left the car on account of plaintiff and companions, and
complained to the conductor, whether within the hearing of
plaintiff or not, is competent, when. In such a case it is error for
the court to instruct the jury that if ejectment was with-
out malice or insult, only compensatory damages could be
awarded, when. See Power Co. v. Matheny, 204.
The common law rule that any agreement between the holder of
a note and the principal, varying the contract of the surety,
etc., without the latter's consent, releases the latter, is abro-
gated by Section 3175j, Revised Statutes. See Richards v. Bank
Co., 348.
CONSIDERATION CLAUSE IN DEED-
Conclusive for operative effect of deed-For other purposes, open
to parol explanation-The consideration clause in a deed of con-
veyance is conclusive for the purpose of giving effect to the
operative words of the deed, but for every other purpose it is
open to explanation by parol proof, and is prima facie evidence
only of the amount, kind and receipt of the consideration.
Shehy v. Cunningham, 289.
CONSIDERATION FOR NOTE-
Suit on promissory note-Defense of want of consideration—Bur-
den of proof on plaintiff-Evidence-Where in a suit upon a
promissory note the defense is that the note was given or ob-
tained without a valuable consideration, the plaintiff has the
affirmative of the issue and the burden of proof rests upon him,
at every stage of the case, to show a consideration for the note,
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