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Court Procedure-Criminal Law.

COURT PROCEDURE—Continued.
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.

COVENANTS-
A custom which would abrogate the doctrine of caveat emptor,

which requires a vendee to protect himself by express cove-
nants and investigation of title, is contrary to law. See Thomas
v. Trust Co., 432.

CREATION OF SCHOOL DISTRICT-
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
district without a vote of the electors. See Buckman v. State,
171.

CRIMINAL LAW-
1. Presence of one accused of crime-At place of crime-Not es-

sential to guilt, when-As to some crimes, the physical pres-
ence of the accused at the place where the crime is committed, is

not essential to his guilt. State v. Sanner, 393.
2. Failure of parent to provide for minor childrenInterpretion

of act of April 28, 1908-Criminal law-A parent may be guilty
of the crime of failing to provide for his minor children, de-
fined by the act entitled an act to compel parents to maintain
their children, passed April 28, 1908 (99 0. L., 228), although
he is a resident of another state during the time laid in the
indictment, and the venue of the crime is in the county where

the child is when the complaint is made. Ib.
Section 7076, Revised Statutes, which makes it an offense to ob-

tain by any false pretense with intent to defraud, any thing of
value, applies to a charge for obtaining title to real estate sit-
uate in this state-An indictment which apprises the party
accused of the charge so that he may know what he is ex-
pected to meet and will be required to answer, is not void
for uncertainty. See State v. Toney, 130.

Criminal Law-Damages.

CRIMINAL LAW—Continued.
On a trial under a prosecution for carnal abuse of a female un-

der sixteen with her consent, evidence of similar prior acts is
admissible to show relation of parties, and to corroborate testi-
mony as to particular act charged in indictment. See Boyd v.

State, 239.
The fees of the sheriff of a county tc 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. See Thurlow v.

Board, 447.
Where a person conducts a private interview with one who is

subsequently examined before the grand jury which finds an in-
dictment concerning some matters disclosed in the interview,
and on the trial of such person testifies for the state, neither
the accused nor his counsel is entitled to possession or inspec-
tion of transcript of such interview delivered to the prosecuting
attorney-Accused is not entitled to minutes of evidence taken
before grand jury on which the indictment was found, nor to
an inspection of transcript of such evidence. See State v.
Rhoads, 397.

CUSTOM-
Usage or custom cannot create a contract or liability, but can be

used only to explain or aid in the interpretation of a contract
or liability, existing independently of it-It cannot contradict
or vary the express terms of a contract nor the legal import
thereof. See Thomas v. Trust Co., 432.

DAMAGES-
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.
In an action for ejectment from a street car, evidence that passen-

gers left the car on account of plaintiff and companions, and
complained to the conductor, whether within hearing of plaintiff
or not, is competent to explain the motive of the conductor-
In such case an instruction to jury that compensatory damages
alone could be awarded, attorney's fees being included therein,
is erroneous, when. See Power Co. v. Matheny, 204.

Damages-Default Judgment.

DAMAGES-Continued.
In an action jointly against a municipal corporation and the owner

of a lot abutting upon a street to recover damages for injuries re-
sulting from falling over a retaining wall, there is a misjoinder
of parties, when—A barrier should be erected in order to make
a highway safe for travelers, when—When it appears that a
pit or excavation complained of is on the land of an abutting
owner, ro action will lie at common law against either the said
owner or the municipality for injuries to a traveler who has
strayed from the street and fallen in the excavation. See Vila

lage v. Gilbow, 263.
An action against an abstracter to recover damages for negli-

gence does not sound in tort, but must be founded on contract
-An abstracter, as a general rule, can be held liable for negli-
gence only to the person who employed him. See Thomas v.

Trust Co., 432.
In an action to recover for personal injuries, a new trial may be
granted on the ground of the inadequacy of the damages, when

-On error to the circuit court to overruling of motion for new
trial on 'ground of inadequacy of damages, the circuit court
may reverse the judgment of the court of common pleas on the
ground that the verdict is not sustained by sufficient evidence.
See Light Co. v. Mason, 463.

DEED-
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.
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 the value of the land,
an order that they should convey title, the case is one to re-
cover value of land, and not for condemnation. See State v.
Harrison, 98.

DEFAULT JUDGMENT-
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

Default Judgment—Defrauding.

DEFAULT JUDGMENT-Continued.

Section 5226, Revised Statutes, be appealed to the circuit court
for a trial de novo. See Winters v. Ruff, 257.

DEFENDANT-
On trial under a prosecution for carnal abuse of a female under

sixteen, with her consent, evidence of similar prior acts of
sexual intercourse between the accused and the prosecutrix is

admissible. See Boyd v. State, 239.
In an action jointly against a municipality and the owner of a

lot abutting upon a street to recover for personal injuries,
where it is alleged that the owner negligently maintained a
pit encroaching on the sidewalk, and the municipality wrong-
fully permitted the sidewalk to be in a dangerous condition, etc.,

there is a misjoinder of parties. See Village v. Gilbow, 263.
In the trial of a criminal prosecution, it is error for the court to

order the prosecuting attorney to deliver to the accused or
his counsel, or to order the prosecuting attorney to allow either
of them to inspect the transcript of a private interview between
a witness for the state and another, when—The accused is
not entitled to the minutes of evidence taken before the grand
jury, nor to an inspection of the transcript of such evidence.
See State v. Rhoads, 397.

DEFENSE-
Where, in an action on a promissory note, the defense is that

there was no valuable consideration, the burden of proof rests
upon the plaintiff, at every stage of the case, to show a consider-
ation, by a preponderance of the whole evidence. (Klunk v.
Railway Co., 74 Ohio St., 125, approved and followed. Dal-
rymple v. Wyker, 60 Ohio St., 108, distinguished.) See Ginn v.
Dolan, 121.

DEFINITENESS OF INDICTMENT-
An indictment which apprises the accused of the charge so that

he may know what he is expected to meet and will be required
to answer, alleges sufficient matter to indicate the crime. See
State v. Toney, 130.

DEFRAUDING-
Section 7076, Revised Statutes, makes it an offense to obtain

by false pretenses, with intent to defraud, title to real estate
situate in this state. See State v. Toney, 130.

Delegation of Authority by State-Devise.

DELEGATION OF AUTHORITY BY STATE-
The state may license and regulate chattel mortgage and salary

loan brokers; and it may delegate authority to do so to mu-
nicipalities. See Sanning v. City, 142.

DELIVERY OF TRANSCRIPT-
In the trial of a criminal prosecution it is error for the court

to order the prosecuting attorney to deliver to the accused or
his counsel, or to order the prosecuting attorney to allow either
of them to inspect the transcript of a private interview between
a witness for the state and another, when—The accused is not
entitled to the minutes of evidence taken before the grand
jury, nor to an inspection of the transcript of such evidence.
See State v. Rhoads, 397.

DESCENT-
Order of descent of ancestral real estate Section 4158, Revised

StatutesRights of brothers and sisters of half-blood of an-
cestor_The half-brothers and half-sisters of the ancestor are
included in the words “brothers and sisters of such ancestors,"
in the fifth subdivision of Section 4158, Revised Statutes, pre-
scribing the order of descent of ancestral real estate. (Cliver v.
Sanders, 8 Ohio St., 501, approved and followed.) Stockton
v. Frazier, 227.

DESCRIPTION OF PROPERTY-
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 attachment
which fails to show compliance therewith, and which fails to
describe the real property levied upon so as to identify it, is
insufficient. Description, to-wit: “Building and land $800; lot
about 25 feet by 75 feet," is insufficient. See Green v. Coit, 280.

DETAILS OF ROAD IMPROVEMENTS-
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.

DEVISE-
Lands devised to and rejected by, a refractory donee amenable

to the equitable doctrine of election, do not become intestate

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