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Consideration for Note-Construction of Statutes.

CONSIDERATION FOR NOTE_Continued.

by a preponderance of the whole of the evidence adduced on
the trial. (Klunk v. The Hocking Valley Railway Co., 74 Ohio
St., 125, approved and followed. Dalrymple, Admr., v. Wyker,
Admr., 60 Ohio St., 108, distinguished.) Ginn v. Dolan, 121.

CONSTITUTION-
Section 4903, Revised Statutes, being part of a statute providing

for management and control of highways, is void because re-
pugnant to Section 26, Article II, of the constitution. (Hixon
v. Burson, 54 Ohio St., 470, and The State ex rel. v. Daris,
55 Ohio St., 15, approved and followed.) See Thorniley v. State,

108.
An ordinance under Section 1536-100, Revised Statutes, to reg-

ulate and license chattel mortgage and salary loan brokers, re-
quiring to be filed with the auditor of the city a record of every
loan, to remain open to inspection, is not violative of Section
14 of the Bill of Rights. See Sanning v. City, 142.

CONSTRUCTION OF CONTRACTS,
While intention of parties will be regarded, yet where the con-

tract is silent, the courts will exercise caution not to include,
by construction, something which was intended to be excluded.

See Gas Co. v. City, 33.
A usage or custom can only be used to explain or aid in inter-

pretation of a contract or liability existing independently of it.
See Thomas v. Trust Co., 432.

CONSTRUCTION OF DITCH-
Township trustees have jurisdiction to locate and construct a

ditch, commencing outside and extending into the village to an
outlet. See Greek v. Joy, 315.

CONSTRUCTION OF FENCE-
The liability of a railroad company, under Section 3324, Revised

Statutes, in damages for injuries to stock in consequence of
its neglect to construct and maintain a sufficient fence, is lim-
ited to loss or injuries occurring upon its own right of way.
See Railway Co. v. Phillips, 453.

CONSTRUCTION OF STATUTES-
Construction of act regulating traffic in intoxicants—99 Ohio Laws,

35—The construction of the act entitled, "An act further to

Construction of Statutes.

CONSTRUCTION OF STATUTES—Continued.

provide against the evils resulting from the traffic in intoxicating
liquors by providing for local option in counties" (99 O. L., 35),
which was adopted in State v. Lynch, ante, 336, is followed in

this case. State v. Wirick, 343.
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 journal, is mandatory.
Section 6 does not amend former legislation, restricting the

bond issues of municipalities. See Henderson v. City, 27.
The common law rule that an officer shall not make a prospective

appointment to fill an anticipated vacancy in an office, the term
of which does not begin until after his own term has expired,
is not changed by Section 1 of act of April 2, 1906 (98 O. L.,
342), creating a railroad commission-Statutes are to be con-
strued with reference to common law, and the legislature will not
be presumed to have intended a repeal of the common law unless
the language clearly expresses such intention. See State v.

Sullivan, 79.
It is not a violation of the local option law (99 O. L., 35) for one

who lives in a “dry” county to go into a "wet" county and
purchase intoxicating liquor for his own use, and bring the
same into the county in which he lives to be used therein by him
as a beverage; such a person may, himself or by an agent, pur-
chase such liquor for such purpose. See State v. Lynch, 336,

and State v. W’irick, 343.
A parent may be guilty of the crime of failing to provide for his

minor children, defined by act of April 28, 1908 (99 0. 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.
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.
An ordinance under Section 1536-100, Revised Statutes, to reg:1-

late and license chattel mortgage and salary loan brokers, re-
quiring to be filed with the auditor of the city a record of
every loan, to remain open to inspection, is not violative of

Section 14 of the Bill of Rights. See Sanning v. City, 142.
Section 1536-100, Revised Statutes, does not authorize a municipal

corporation to exact a license from persons engaged, otherwise
than as brokers, in the business of loaning money upon mort-
gages on personal property. See French v. City, 160.

Construction of Statutes.

CONSTRUCTION OF STATUTES—Continued.
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
ralue 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 duty
of the trustees of the sinking fund to pay, and on refusal to do so

mandamus will lie. See State v. Harrison, 98.
Where the statute prescribes no person to execute a contract for

the publication of legal notices, in behalf of a municipal cor-
poration, it is consistent with Section 1536-653, Revised Stat-
utes, for the council to authorize the clerk thereof to execute

such contract. See McCormick v. City, 246.
Section 1536-679, Revised Statutes, gives discretion to a board

of public service to reject any and all bids for street improve-
ment, which discretion cannot be interfered with by mandamus,
unless there is abuse thereof, or a vested right in a bidder.

See State v. Board, 218.
Since the municipal code passed October 22, 1902 (96 0. L., 20),

repealed Section 2264, Revised Statutes, and defined the mode
of assessing costs of street improvements, municipalities are
authorized to assess upon an entire lengthwise frontage oi a
lot abutting on the improvement. See Village v. Stoecklein,

332.
Under Section 2835, Revised Statutes, a municipal corporation

may issue bonds in order to equip buildings of fire department
with apparatus other than, or in addition to, fire engines—The
provisions of Section 1536-205, Revised Statutes, that no order
for expenditure of money shall be passed by council of a
municipal corporation, unless the auditor shall first certify that
the money required is in the treasury, does not apply to an
ordiance appropriating money obtained by council, from a
sale of bonds made by it, to the purpose for which the bonds

were sold. See City v. Dobson, 66.
A surety who signs on the face of a note is, by force of Section

3178a, Revised Statutes, primarily liable—By force of rule er-
pressio unius est exclusio alterius, sureties who are primarily lia-
ble cannot be relieved otherwise than in manner provided in Sec-
tion 3175j, Revised Statutes—The rule of the common law that
an agreement which varies the contract, without consent of
surety, releases latter, is abrogated by Section 3175j, Revised
Statutes-Sections 31750 and 3175p, Revised Statutes, do not
Construction of Statutes.

CONSTRUCTION OF STATUTES—Continued.

apply to a contract for an extension of time of payment. See

Richards v. Bank, 348.
The liability of a railroad company, under Section 3324, Revised

Statutes, for injuries to stock in consequence of failure to fence
each side of its road, is limited to loss or injuries occurring upon

its right of way. See Railway Co. v. Phillips, 453.
By force of Section 3888, Revised Statutes, as amended April 2,

1906 (98 0. L., 217), each incorporated village existing April
16, 1906, or since created, together with the territory attached,
and excluding the territory detached, for school purposes, and
having in the district a total tax valuation of not less than
one hundred thousand dollars, constitutes a village school dis-
trict without a vote of the electors. See Buckman v. State,

171.
The half-brothers and half-sisters of the ancestor are included

in words “brothers and sisters of such ancestors," in Subdi-
vision 5, of Section 4158, Revised Statutes, relating to de-
scent. (Cliver v. Sanders, 8 Ohio St., 501, approved and

followed.) See Stockton v. Frazier, 227.
Under Section 4200, Revised Statutes, the issue of a donee in

tail, during life of latter, has no interest which he can alienate.

See Dungan v. Kline, 371.
Section 4364-9, Revised Statutes (98 0. L., 100), in effect April

10, 1906, applies to the business of trafficking in malt liquors,
whether intoxicating or non-intoxicating. See La Follette v.

Murray, 474.
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 0. L., 254)-Section
4903, Revised Statutes, is void because repugnant to Section 26,
Article II of Constitution—(Hixon v. Burson, 54 Ohio St., 470,
and The State ex rel. v. Davis, 55 Ohio St., 15, approved and

followed.) See Thorniley v. State, 108.
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, can-
not under Section 5226, Revised Statutes, be appealed to the

circuit court for a trial de novo. See Winters v. Ruff, 257.
Section 5537, Revised Statutes, makes it necessary that the return

of an order of attachment shall describe the property so as to
identify it, etc.—The requirements of Section 5528. Revised
Statutes are mandatory, and a return of an order of attach-
ment which fails to show compliance therewith, and which iails
Construction of Statutes-Construction of Wills.

CONSTRUCTION OF STATUTES—Continued.

to describe the real property levied upon so as to identify it, is
insufficient. Description, to-wit: “Building and land, $300.00;
lot about 25 feet by 75 feet," is insufficient. See Green v.

Coit, 280.
Property acquired after execution of a will does not pass there-

under unless testator's intention that the property should so
pass, clearly and manifestly appears on the face of the will,
as required by Section 5969, Revised Statutes. See Wright v.

Masters, 304.
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 wrong-
ful 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. Rail-

road Co., 184.
Section 6185, Revised Statutes, is intended as a guide to the

probate couri and administrators in respect to expenditure for
tombstone or monument for deceased and allowance therefor,
and such court is without jurisdiction before settlement to fix
a maximum sum to be expended for purpose of a tombstone, and
to order the erection thereof and the charging of the expense

to the estate. See Matter of Estute of Ferguson, 58.
In attachment before a justice of the peace, Section 6478, Revised

Statutes, does not apply, and jurisdiction in attachment against
a foreign railroad corporation may be acquired by levy and
publication of notice, as provided in Section 6496, Revised Stal-

utes. See Railway Co. v. Baum, 386.
Section 7076, Revised Statutes, makes it an offense to obtain by

false pretense, with intend to defraud, title to real estate situate

in this state. See State v. Toney, 130.
The fees of the sheriff of a county to which, under Section 7264,

Revised Statutes, a criminal prosecution has been removed,
for services in such case, should be allowed and paid by com- .
missioners of county in which the indictment was found. See
Thurlow v. Board, 447.

CONSTRUCTION OF WILLS-
Property acquired after execution of a will does not pass there-

under, unless testator's intention that the property should so
pass clearly and manifestly appears on the face of the will, as
required by Section 5969, Revised Statutes. See Wright v.
Masters, 304.

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