ported in Toledo Legal News, vol. I page 161 but without report except the following. "Judgment reversed on the authority of the Kinsman Street Railway Co. vs the Broadway & Newburgh St Ry Co., 36 O. S. 239 and Toledo Con St Ry Co. vs Toledo Elec St Ry Co., 50 O. S. 603. Petition dismissed and judgment for plaintiffs in error." This means that the Robisons or the Toledo Elec St Ry Co. defendants in error, must go into the Probate Court and condemn in order to obtain joint use of the poles of other electric light companies. The network of electric wires which is rapidly covering the streets of many cities makes questions of liability for dangerous wires very important. In connection with this subject, the recent Wisconsin case of State, Wisconsin Teleph. Co. vs Janesville St. R. Co,, 22 L. R. A. -769, is interesting, in which an ordinance requiring guard wires to be pleaced where they will prevent the contact of telephone wires with wires of an electric railroad company, in case of the breaking of doles or the falling of wries in storms, is enforced against a street railroad comgany by mandamus. In Holtgreive vs Ohio, error to the docket of a Justice of the Peace, the Court was asked to find that the law of 1890, Laws of 1890, page 51, entitled an act to prevent deception in the sale of dairy products and to preserve the public health was unconstitutional. After an examination of the record and proceedings before the Justice, the Court, by Lemmon, J., found there was no error, thus holding that the law in question is constitutional. The Circuit Court of Hamilton Co, in the case of Christian Moerlein Brewing Co. vs Hagerty, Auditor, et al, reported in Court Index of June 18th, has held the Rawlings Law, providing for the taxation of raw material and finished product in the hands of manufacturers, to be constitutional. We observe in Court Index of June 22, a decision by Hollister, J., of the Hamilton Co. Common Pleas Court, to the effect that the holder of a perpetual lease, with privilege of purchase, is an owner within the meaning of the street assessment statutes. In the same case, F. T. Clements vs the village of Norwood, the court follows a well settled principle of law in this district, viz: that boundaries of lots are to be determined for the purpose of assessinent by use and occupancy and not by imaginary linės ou a plat. WILL BE ANSWERED LATER. The belated number of the Law Bulletin containing what purports to be an answer to charges made recently in the LEGAL NEWS came to our notice too late for any attention this week, without disarranging more important matters. will reply to the weak, and in many respects absurd, defense in our next number. JURISDICTION. We Exclusive Jurisdiction in the Probate Court for the Determination of Chattel Mortgage Liens and Assignment Matters. (Hamilton County Common Pleas Court.) 99543--The Graham Lumber Company, limited, and McClaren & Sprague, plaintiffs, vs Bertha Julien, Frank K. Rodman, assignee of the Madison Planing Mill Company, et al, defendants; heard on demurrer. (Four other similar cases) BUCHWALTER, J. The petition avers that the plaintiffs are general creditors of the Madison Planing Mill Company; that the defendant, Julien, claims a lien upon certain chattel property for $620; that said chattels are now in the custody and possession of the assignee, Rodman, for the purposes of the assignment according to the insolvent laws of Ohio. Various reasons pertaining to the manner and conditions of the execution of the chattel mortgage to Bertha Julien are set out, wherein it is claimed that said lien is not valid, and should not be allowed by the said ass gnee as such. Plaintiff's pray for a finding accordingly; as to said chattel mortgage, that said assignee be restrained from allowing till the termination of the suit, and other relief. A number of other like actions are filed against various other chattel mortgagees, joined with the assignec, and demurrers have been filed for cause: I. That this court has no jurisdiction of the subject matter. 2. That other action is pending between the sime parties for the same cause, to-wit: the assignment in the Probate court. 3. Misjoinder of parties plaintiff. 4- General demurrer. With my view of the issue as to juris diction, it becomes unnecessary to discuss the other grounds of demurrer. Their first ground for demurrer calls for consideration of the scope of the jurisdiction acquired by the assignee in accepting the trust, and in qualifying and taking possession of the chattel property in accordance with the statutes regulating such assignments for the benefit of creditors. It is not averred, and is not claimed, that any special proceeding as to either of these mortgages was taken in the Probate Court, nor is it negatived in the pleading, and the issue, therefore, is confined to the general jurisdiction in such proceedings in the Probate Court. The allowance or disallowance of a claim is made by the assignee, subject, however, to contest on behalf of creditors, or the assignor; but the determination of the lien and its allowance and payment out of the proceeds is solely upon the order of the Probate Judge-likewise the sale of chattel property upon its order. Has that court exclusive jurisdiction in that regard upon the facts here stated? Such would seem to be the necessary logic and holding to arrive at the ultimate conclusion in Lindemann vs Ingham, 36 O. S., I, and Ingham vs Lindemann, 37 O. S. 218. In 2 C. C., 73, Simpson et al vs Sayler, assignee, it was held that the Probate Court had jurisdiction against the protest of the creditors interested, and of the assignee, and the court, in their opinion, held that such court had exclusive jurisdiction, its judgment being subject to appeal, as in other matters of final determination, therein. A. M. Warner for plaintiffs; B. B. Dale, Oliver B. Jones, Wilby & Wald, attorneys for defendants -Court Index, Cin. U. S. Circuit Court. (Northern District. June Term, 1894. Présent, Hon. Augustus Ricks.) McDonald vs City of Toledo. Demurer to petition. RICKS, J. The averments of the petition are that on the 12th of February a severe and violent snow storm prevailed in the city of Toledo which left the snow on or about where Cherry street and Collingwood avenue intersect, drifted to a depth of between four and five feet; that Cherry street is one of the principal streets and thoroughfares of the city; that the street car tracks on that street are double and occupy about 14 feet and that the street is paved 44 feet between curbs; that said snow had been carelessly cleared from the railroad tracks by the defendant St. Ry Co and piled up in conical mas on the remaining parts of the street to the depth of 4 to 6 feet until it packed and froze so as to become a hard mass rendering said street dangerous; that paintiff was driving with two horses în a carriage on Collingwood avenue from a northerly direction and turned onto Cherry street and at said crossing of Cotlingwood avenue it become necessary to pass around a car of the Toledo Consolidated Street Railway which was standing on its track on Cherry street; that while so driving around said car the servants of car and the noise frightened plaintiff's said Street Railway carelessly started said team so that they jumped toward the side of said street and drew plaintiff's of snow on the westerly side of said street buggy upon and over said hardened mass iu such a manner as to overturn said buggy; * * that plaintiff · exercised due care in driving and was without fault and but for the existence of said mass of snow piled in said street as aforesaid he could have controlled and stopped his team before said buggy was notice of said piling of snow over turned; that each of said defts had on said street * The case of Chase vs City of Cleveland, 44, O. S. 505 is relied upon in support of fell on a sippery sidewalk, made so by the demurrer. In that case the plaintiff the natural fall of snow which froze and was beatén smooth and slippery. The street was averred to be a public highway within the corporate limits and it was charged that the City had or might have had notice of the dangerous condition of said walk. The walk was otherwise in good repair The Supreme Court held the petition insufficient to show negligence. The reasoning of the Court is that a fall of snow is a temporary impediment and perhaps a danger which is frequent in northern cities and to impose upon a municipality the duty of removing snow or removing ice from sidewalks would be an onerous burden involving great expense and that unless very exceptional conditions are shown it would not be negligence to fail to remove such impediment or danger from the sidewalks butted by an affirmative allegation which would show some negligence or act tending to establish negligence on the part of such defendant. Because the exceptional storm which left four to five feet of snow on the street would impose upon plaintiff more care and caution in driving about the streets. In such a condition of the street travel might be substantially suspended and persons who persisted trying to drive over such snow banks would be charged with notice and to observe more than ordinary care. In such conditions the driving out of the way to avoid a street car only stopping for a moment would not be "necessary". It is sought to distinguish the case at bar from the Chase case, first, because this obstruction was in a principal thoroughfare and because it was the result of an unnatural and violent storm and therefore the City had notice of the unusual obstruction to travel that would be caused thereby. It is further insisted petition states facts necessary to make that the City had notice that this obstruc-out a case and the demurrer will theretion was made greater and more danger- for be sustained. Hurd, Brumback & ous because the Street Railway Company Thatcher for Plaintiff. C. F. Watts. was permitted to scrape the snow from City Solicitor for the City. its tracks and pile it upon the streets and that said pile of snow was permitted to remain in the street for seven days and so froze as to become hardened. But it is to be observed that a'l these unusual and exceptional conditions which are relied upon to carry notice to the City of the dangerous character of the obstructions in the street may likewise be relied upon to carry notice to plaiutiff of the dangers he might naturally expect. For, as the Supreme Court said in the Chase case the City "is bound to exercise only ordinary care, to take such measures as are reasonably to be required and adequate in view of the ordinary exgenices". The conditions set forth in the petition are exceptional and rare. fall of four feet of snow in one storm is rare even in this section. Is the City bound to remove four fect of snow from A For these reasons I do not think the the 1217-Repke vs Penn Co. Demurrer to petition sustained, (Plff was stealing a ride and a brakeman pushed him off with a club while the cars were in rapid motion. Held, (Ricks, J.,) that brakeman in pushing plaintiff from the cars in the manner stated was not acting within the scope of his authority as brakenian and that therefore the company was not responsible for his actions. The Court intimated that if death had been the result of plaintiff's injuries the brakeman would have been guilty of manslaughter. Filings. 1144--Schuleuburg, admr, vs Dyer. even its principal thoroughfares? There Jdgt vs plff for costs. are many such in Toledo and they are of great length. The Court may take judicial notice of such facts. It would be a great hardship to impose upon the tax payers through their City authorities the burden of removing snow and ice resulting from such a storm within so short a period. 1182-The Farmers L & T Co. et al vs The Tol A A & N M Ry Co. et al. Application of Receiver for instructions in regard to car trust. A. L. Smith, Solr. for Recr. 1182-Same vs Same. Order fixing Jund 29-94, 10 a m for hearing app. Recr ordered to notify parties in interest and serve upon solicitors of Post, Martin & Co. copy of order. The averment in the petition is that the accident was cause! because is was "necessary (for the plaintiff) to pass around a car of the Toledo Consolidated Street Railway Company standing on its track on Cherry street". It is not averred that this ear had stood there for a long time, or would be compelled to stand 1222-McDonald et al vs T. S. Gallithere for a long time, so as to show the necessity to drive around it. I think in land. Depositions on behalf of plaiuthe absence of such an averrment the tiffs. Court is warranted in assuming that it was a stop to take on or discharge a passenger. 1205--Continental Tr Co., et al vs T St I think this assumption ought to be re- L & KCR R. Order concerning E St L terminal property and concerning contract with Amr Express Co. SUPREME COURT PROCEEDINGS. Causes up to and including No 3075, on mitted. 1223—T. H. McDonald vs Tol Con St the General Docket are called and subRy Co. and City of Toledo. Amended petition. Hurd, Brumback & Thatcher, attys. 1223-John J. McDonald et al vs T. S. Galliland. Answer. H. G. Ritchie and Glenn & Wolcott, attys. 1205-The Continental Tr Co. vs T St L & KCR R. Reply of Cassie Alberts to answer of Recr C. H. Kline, atty. 1229- Gawlock vs Mich, Cen R R Co. Motion to remand case to Common Pleas Court, granted. 1205-Continental T Co vs T St L & KCR R Co. Motion of Isaac Vany. Intervenor for trial to jury overruled. Intervenor excepts. TUESDAY, June 19, 1894 General Docket. No. 2851. Elger F. Winemiller vs Mary Where in an action brought to foreclose a mortgage, an affidavit in due form to obtain service by publication, is filed and publication had, a finding by the court of common pleas that the publication "is in all respects regular and according to law," and that the defendant has been "duly served with notice of the pendency of said cause of action," is conclusive against such defendant in a collateral attack upon the judgment, even if he had ed within the state and might have been no actual notice of the proceedings, residpersonally served with a summons, and 1205-Same vs same. Motion of Inter-although it does not appear of record that after the publication was made and venor Catharine Rogers adur for trial to before the hearing and affidavit was filed jury overruled. Intervenor excepts. stating that the residence of such defendIrvin Belford appointed special master to ant was "unknown and cannot with reasonable diligence be ascertained," as is take testimony and report law and facts prescribed by section 5048, Revis. d Staton Intervenor's petn. Exceptions. 1178-Van Pelt vs Stowe admir. Motion and notice of motion to amend petu filed. 1230-W. H. Kurtz et al vs John W. Long. Demurrer to petu. R. W. Cahill & C. W. Everett, attys. 1230-Same vs Same. Motion for additional security for costs. Same attys U. S. District Court. In Admiralty. 171-Calloway, recr, vs Orient Ins Co. Exceptions to answer overruled. To be reported. 169-Eley et al vs Steamer Shrewsbury. Default set aside. To be reported. 169-Eley vs Shrewsbury. Motion of Buffalo Loan, Trust & Safe Deposit Co. to amend returns of Marshal filed. utes. 2. The plaintiff in an action to foreclose a mortgage, is not required to set forth either the nature of, or the facts constituting the claim of another lienhold er, in order to bar the latter by a decree against his claim if he should fail to answer. If for that purpose anything more is required than to make him a party and sufficient for the petition to state that such serve him with legal process, it will be defendant claims some interest in the mortgaged premises, and advise him that his claim or lien will be barred if he fails to appear and disclose it. Judgt reversed. 2948. R. O. Duncan vs J. W..Willis. Error to the Circuit Court of Fayette county. SPEAR, J. W., having knowledge that D. O. D. and R. W. D. were desirous of purchasing thirty to forty heads of hogs, each for separate use, represented to them that he had one hundred head of the kind and quality they wanted; he would not sell in separate lots, but would sell in one lot and the purchasers could divide them to suit his hogs were sound, healthy, and free themselves. He further represented that from disease, and that he had purchased them a few days before at $5.00 per 100 lbs. In fact, the hogs had been exposed 10 hog cholera, and were then infected with it, and had been purchased by W. as diseased hogs, and for a sum much less than $5.00 per 100 lbs., all which was well known to W., but unknown to the purchasers. Relying on the foregoing representations, the lot of hogs were purchased for $5.12% per 100 lbs., the two purchasers each to have fifty head as his separate and individual property, and to feed the same separately on their respective farms. The hogs were so divided immediately upon completion of the purchase. On the same day a number of them owned by D. O. D. died from cholera, and the disease was communicated to his other hogs, some of which also died. Held: That D. O D might maintain an action for damages against W. for the deceit and fraud without joining R. W D., or making hit a party defendant. Judgment of the circuit court reversed, and that of the common pleas affirmed. 2767. Wilford D. Jolinson et al. vs knowledge of the will, holds the same, 3439-Michael Walsh et al vs I. J. Miller et al, trustees. Error to the Circuit Court of Hamilton County. WILLIAMS, J. 1. While sureties are not liable bevond the plain terms of their engagement, the rules governing the interpretation of their contracts, are not different from those which are app'icable in the construction of all written agreements: and the intention of the party clearly appear it is enough in any written contract that though it be not expressed in the most appropriate words. 2. A duly executed bond of an assignee for the benefit of creditors, which recites that, by a certain deed of assignment he was appointed "trustee" for the purposes therein expressed. and is conditioned for the faithful performance by him of all his duties as "such trustee," according to law, bind the sureties for the faithful performance of his duties as assignee, under the deed of assignment. signed, on the settlement of his accounts, the sureties are concluded by the settlement, and, in the absence of fraud or collu ion, cannot question the correctness of the settlement, nor demand a rehearing of the accounts; nor will they be heard to assert that the assets with which the assignee is charged in his accounts, were not the property of the assignor. 1. A testator' after providing for the payment of his debts, used the following language in his will: "Second I give and devise unto my beloved wife, and her assigns, all the remainder of my 3. In an action on such a bond for the property, both real and personal, how-recovery of the amount found due the ever the same may be known, or where- successor of the assignee, he having resoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper; but, if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same shall be equally divided between my brothers and sisters. and their children, if deceased, the children to have the same amount the parent would be entitled to if living. Held: That under this will the widow took only a life estate in the property, both real and personal, with power to bargain, sell, convey, exchange or dispose of the same as she might think proper for consumption in her life support, and that what remained at the time of her death, unconsumed in supporting her, belongs to the remainderaien designated in the will. 2. That the widow under this will was, by implication, a quasi trustee for those in remainder, and the interest of the brothers and sisters of the testator, in the unconsumed property, was a vested right, which could not be destroyed by the act of the widow in disposing of the property by gift to a third party, or otherwise than for her support or the benefit of the estate. 3. A third party acquiring said estate from her by gift or fraud, or by collusion with her, to the injury of the vested rights of those in remainder, and with 4. The sureties on the bond of such an assignee, when he has failed to pay the money in his hand to the successor in the trust, are joint debtors, within the purview of section 3166, of the Revised Statutes; and a compromise with, and release of one surety, will not discharge the others. 5. Such release operates as a payment on the liability, equal to the released surety's proportionate share thereof, but does not prevent the creditor from proceeding against the other sureties for the balance; nor is the released surety a necessary party to such proceeding 6. The released surety's proportionate share of the liability is determined from the number of sureties, and the amount of the total liability, and not from any agreement between the sureties fixing a different ratio of liability 7. Whether, in case of insolvency of one of the unreleased snreties, those who are solvent may call on the surety who has been released, for contribution, |