ACCOUNTING IN EQUITY. See APPEAL, 2.
ACCOUNTING OFFICER. See CRIMINAL LAW, 6.
Quantum of proof necessary to overthrow certificate of, to deed. Where it is
claimed by a wife that a deed, signed by her husband and herself as a
conveyance of her lands, had not been acknowledged by her as it pur-
ports to have been, the burthen is upon her to show the fact by clear and
convincing proof; a mere preponderance of the evidence is not suffi-
cient to support a finding contrary to the certificate of acknowledg-
ment. Ford v. Osborne, 1.
ADMINISTRATOR. See EXECUTORS AND ADMINISTRATORS.
AGENCY. See MORTGAGES OF REALTY, 3.
1. Liability of municipal corporation for negligence of officer.-By a special
act of the general assembly the commissioners of Hamilton county
were authorized to levy a tax upon the property of the county, to be ex-
pended under the direction of the board of public works of the city of
Cincinnati in opening, grading and completing an uncompleted public
highway wholly within the city limits and already under the control of
the city. By the neglect of the board in the prosecution of the improve-
ment, the premises of an abutting owner were injured. Held: The
board was acting as an agent of the city, and the latter is liable for
damages resulting from such injury. Johns v. Cincinnati, 278.
2. Husband and wife-Imputed negligence. The doctrine of imputed negli-
gence does not prevail in Ohio; and the contributory negligence of a
husband in the purchase of a drug to be used by his wife is not to be
imputed to her in an action by her or her administrator against the
dealer for injury or death resulting from the use of such drug, unless
she constituted him her agent; and in simply making known to her hus-
band her desire for the medicine, by reason of which he obtained it the
wife did not constitute him her agent in such sense as that his contribu-
tory negligence in making the purchase can be imputed to her. Davis
v. Guarnieri, 471.
See DIVORCE AND ALIMONY.
APPEAL. See PROBATE Court, 4.
1. Action for conspiracy to cheat and defraud and for discovery not appea.aole.—
Upon the trial of an action against several defendants, where the
plaintiffs in their petition charge upon the defendants a conspiracy to
cheat and defraud the plaintiffs, and with thereby procuring and appropri-
ating to their own use a single sum of money which rightfully belongs
Appropriation of Money-Arbitration.
to the plaintiffs, and which they are entitled to recover, and for which
they seek a joint judgment against the defendants, and the answer ad-
mits the receipt of a stated sum of money, and is otherwise, in effect, a
general denial, either party is entitled to demand a jury, notwithstand-
ing the plaintiffs pray a full discovery, and for an account of the full
amount due to them, and to have an equitable lien declared and en-
forced. Chapman v. Lee, 356.
2. Accounting in equity.-In such case the remedy of accounting in equity,
is not necessary to full and adequate relief to the plaintiffs. Id. 357.
3. From order of probate court overruling motion to terminate guardianship.—
An appeal will lie from an order of a probate court overruling a mo-
tion of an imbecile ward to terminate the guardianship upon the grounds
(1) that letters of guardianship were in the first instance improperly
issued, and (2) that if he was an imbecile at the time such letters were
issued he has since been fully restored to reason. Hiett v. Nebergall, 702.
4. In action to foreclose mortgage.—Where, in proceedings in attachment, the
process of garnishment is served upon one who is indebted to the de-
fendant upon notes secured by mortgage, and judgment is rendered for
the plaintiff, the notes and mortgage are in legal effect assigned to the
plaintiff, and he may maintain an action to foreclose the mortgage; and
this is so whether the garnishee admits or denies the indebtedness in
his answer; if it is denied, the plaintiff may proceed against him for
an unsatisfactory answer and the foreclosure of the mortgage in the
same action. Where, in such action, the prayer is for an ordinary de-
cree of foreclosure and order of sale, the action is one for relief
other than money only; and, although an issue of fact may be joined
on a plea by the garnishee that he had paid the mortgage indebtedness
before notice of garnishment was served on him, neither party is entitled
to demand a jury for the trial of the issue, and either may appeal from
a final judgment rendered against him in the action. Alsdorf v.
Reed, 653.
Construction of act providing for.-The purchase of a printing-press by the
trustees of the soldiers' and sailors' orphans' home, where the art of
printing is taught, may be paid for from the appropriation "for heating
and furnishing new industrial building," made March 21, 1887 (84 Ohio
L. 200). State ex rel. Grosvenor v. Kiesewetter, 524.
ARBITRATION-
1. Unsworn arbitrator.-Where parties to an arbitration proceed to a hear-
ing of the controversy before an unsworn arbitrator without objection,
and without being misled into the belief that he has been duly sworn,
they thereby waive the oath of the arbitrator and all objections to the
award based on that omission. Rice v Hassenpflug, 377.
2. When may administer oath to witness.-It is not necessary that an arbitra-
tor himself administer the oath to the witnesses before him; and when
he is a justice of the peace, he is authorized (by section 5606 of the Re-
Assault and Battery-Assessments.
vised Statutes) to administer a valid oath to the witnesses, although he
is himself unsworn as arbitrator. Id. 377.
3. Presumption as to what was considered by arbitrator.-Where the written
submission is of all differences, damages and claims whatsoever existing
between the parties, and the award purports to have been made "as per
submission in writing," the presumption is authorized that all claims
and matters of difference presented by the parties were considered.
Id. 377.
4. Agreement in submission as to excessive interest, how far binding.-Where the
parties to such submission stipulate, as one of its terms, that the arbi-
trator in calculating whatever may be due on a matured promissory
note calling for interest at ten per cent. shall compute interest thereon
at that rate, such submission is not a usurious contract, and an award
rendered in pursuance of it is valid. Id. 377.
Agreement to fight-Damages. In a suit to recover damages for an assault
and battery, the fact that the parties fought by agreement, may be
shown in mitigation of damages, but is no bar to the action. Barholt
v. Wright, 177
1. To what curative provisions of secs. 2289 and 2327, Rev. Stats., extend.-
The curative provisions of section 2289 and section 2327 of the Revised
Statutes, extend to irregularities or defects in the estimate of cost and
, expenses, which the council may direct to be made, after a plan of
sewerage for the corporation, or any part thereof, has been approved.
Wewell v, Cincinnati, 407.
2. Estimate of expense, by engineer, of cost of sewer.-In a city of the first
grade of the first class, a plan of sewerage for a sewer district waз pre-
pared by the assistant engineer in charge of sewers, who, in submitting
the plan to the chief engineer, embodied with it an estimate in gross,
of the cost and expenses of the improvement, and officially reported
that the proposed sewers could be constructed without cost to the city.
The plan, with the included estimate, was approved by the chief engi-
neer, was submitted by him to the board of public works, and that body
adopted and placed the same on file. The board of city commissioners
transmitted to the council and recommended for adoption, a resolution
to improve by sewerage certain designated streets, according to the plan
on file, the expenses to be assessed per front foot on the abutting prop-
erty, and certified to the contractor in payment for the work. In trans-
mitting the resolution, the board of city commissioners reported to the
council that, in making the improvement, there would be no expense to
the city. Held: That the estimate which accompanied the plan was
not of such a character as to render void an assessment to pay the cost
and expenses of the improvement. Id. 407.
3. Omission to construct sewer embraced in plan.-An assessment to pay for a
sewer improvement will not be made void by omitting, prior to the as-
VOL. 45-45
Assignment for Creditors-Attachment.
sessment, to construct a sewer in a street embraced in the plan, when it
is found that such sewer cannot be constructed without grading the
street to the established grade, for which no provision is made by ordi-
nance, and when the omitted sewer would be a lateral, into which no
other sewer would drain, or which would in no way affect the drainage
of any other street. Id. 407.
4. To what exemption under sec. 2380 Rev. Stats. limited. The exemption, un-
der section 2380 of the Revised Statutes, from assessment for the cost of
a sewer improvement, is not limited to lots supplied with local drainage
under a regular system of city sewerage; but lots that are completely
drained by an extensive sewer which discharges into a river, which was
constructed partly by the city and partly by private persons, which has
been frequently repaired by the city, and into which the city has caused
certain streets and the adjacent territory to be drained, are provided with
local drainage within the meaning of the statute, and are thereby ex-
empt from assessment. Id. 407.
ASSIGNMENT FOR CREDITORS. See HOMESTEAD, 1.
1. When liens transferred from property to fund arising from sale.- Where,
after chattel mortgages given to secure separate indebtedness due each
of several creditors had been filed with the proper officer, the mortgagor
assigned all his property for the benefit of creditors, and the assignee, hav-
ing full possession thereof, sold the mortgaged property under the order
of the probate court in the administration of such assignment, and has the
proceeds for distribution, the liens of the several mortgages are trans-
ferred from the property to the fund, and attach therete in the order
of their priority on the property; and the rights of such mortgagees to
the fund must be worked out through the probate court. Sayler v. Simp-
son, 141.
2. Rights of unsecured creditors.--On application to that court by the mort-
gagees, for the payment of their mortgages out of such fund, the unse-
cured creditors of the assignor may intervene, and contest their right to
such payment. Id. 142.
3. Jurisdiction of probate court.-In such proceeding, the probate court has
jurisdiction to order the payment of such liens by the assignee, out of
such fund, according to their priority; and may, in the exercise of such
jurisdiction, decide upon the validity of the mortgages, and determine
to what extent, and in what order of priority, they are entitled to be so
paid. Id. 142.
4. Appeal. From such order, decision and judgment of the probate court,
appeals may be taken to the court of common pleas, and the cause so
appealed, must therein be tried, heard and determined as though that
court had original jurisdiction thereof. Id. 142.
ATTACHMENT-
1. Actual seizure by officer essential.-In order to constitute the levy of an
attachment on personal property, it must be taken into the custody of
the officer levying the writ, so as to be held subject to the order of the
Attorney-General-Banks and Banking.
court from which the writ issued. After the seizure has been effected,
the property may be placed by the officer in the possession of a person
acting for him as keeper, but cannot be left in the possession of
the debtor, and subject to his control, unless upon the execution of a
forthcoming undertaking as provided in section 5529 of the Revised
Statutes. Root v. Railroad Company, 222.
2. Effect of absence of such levy.—In the absence of a levy so made, the court
acquires no jurisdiction over the property sought to be attached, and it
may be taken in execution or attachment by any other creditor as if no
previous writ had been issued. Id. 222.
3. Conclusiveness of officer's return.-Where as a matter of fact, personal
property is for the first time seized by an officer and taken into his cus-
tody under a writ of execution, the return of the officer that he had
levied the same upon certain property, subject to a former attachment,
does not preclude the execution creditor from showing that, from an
omission of the officer to take the property into his custody, no such at-
tachment had in fact been made. Id. 222.
4. Effect of attachment of notes secured by mortgage.-Where, in proceedings
in attachment, the process of garnishment is served upon one who is in-
debted to the defendant upon notes secured by mortgage, and judgment
is rendered for the plaintiff, the notes and mortgage are in legal effect
assigned to the plaintiff, and he may maintain an action to foreclose the
mortgage; and this is so whether the garnishee admits or denies thein-
debtedness in his answer; if it is denied, the plaintiff may proceed
against him for an unsatisfactory answer and the foreclosure of the
mortgage in the same action. Alsdorf v. Reed, 653.
ATTORNEY-GENERAL—
When may proceed in quo warranto on his own relation. The attorney-general
may, on his own relation, without being directed by the governor, su-
preme court, or general assembly, bring a civil action in quo warranto,
against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office. State ex rel. Attorney-General v. Anderson,
AUTHENTICATION OF STATUTES. See STATUTES.
BANKS AND BANKING. See GUARANTY, 1; EMBEZZLEMENT; MORT-
GAGES OF REALTY, 1, 2.
1. When certificate of deposit a promissory note.-A certificate of deposit issued
by a national bank for $1,145, payable to the order of the depositor, on
the return of the certificate, in current funds is, in effect, a negotiable
promissory note. Citizens' National Bank v. Brown, 39.
2. Remedy where certificate lost.-Where such a certificate is lost by the
payee, and the same has never been indorsed by him, he may maintain
an action at law thereon against the maker, without tendering an in-
demnity against future liability. Id. 39.
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