Right to file affidavit of prejudice
under R. S. 550 (L. 876) is not lim-
ited to cases where all judges of a
subdivision are disqualified, etc. Ib.

Facts constituting bias or prejudice
need not be set forth in affidavit of
prejudice under R. S. 550 (L. 876).
Ib.
Difficulty in securing conviction for
perjury, no effect on construction of
R. S. 550 (L. 876).
Ib.
Written charges of contempt of court
required to be filed under R. S. 5641
(L. 9173).

Ib.

Bias or prejudice a state of mind im-
possible to show facts constituting, etc.
Ib.

A party to an action will be deemed
to have waived an affidavit of bias and
prejudice filed by her against the trial
judge, when she stands by and without
objection or protest allows her attorney
to state in open court that the affidavit
was waived, that the case would be
tried to the judge on the facts and
that he would not agree to appear in
the case until his client consented to
waive the affidavit. Burns v. Burns.

BILLS AND NOTES-

149

Note may be reformed when mistake
clearly appears from inspection with-
out further evidence. Reep v. Lyman.
293

Holder of note by indorsement held
prima facie owner, and may sue there-
on. Independent Coal Co. v. Bank.
297

Where the evidence shows that plain-
tiff is not the owner of the note sued
upon the defendant is not required to
go further and show that a valid offense
exists in his favor against the payee,
in order to defeat a recovery.
Ib.

Holder of note for collection only
held cannot sue in his own name. Ib.

The fact that the payee of a note to
the maker in the presence and hearing

of the cashier of the plaintiff bank,
that he, payee, was going to sue on the
note, and that the cashier made no ob-
jection and made no claim that the
bank was the owner of the note is no
evidence that the bank was not the real
owner of the note.
Ib.

A draft upon a bank, payable on de-
mand, is indistinguishable from a check,
and either, considered alone, imports a
representation that the drawer has
funds to meet it. Semler v. State.
581

BILLS OF EXCEPTIONS—

There is no provision of law author-
izing the filing of a motion for a new
trial, after a ruling on a motion to dis-
solve an attachment; hence the filing
of such motion does not operate to ex-
tend the time within which a bill of
exceptions to such ruling may be filed.
Cecil v. Grant.
442

A bill of exceptions shows on its
face that it does not contain all of the
evidence, thereby precluding a review-
ing court considering the weight of the
evidence in the lower court consisted
of illustrations or demonstrations by
models of machinery, and there is noth-
ing in the bill to show where the wit-
nesses and counsel stood with refer-
ence to the models, what they pointed
out, and where they placed their hands
except by such words "here,"
"there," "like that," and the word "in-
dicating" in parenthesis inserted by the
stenographer. Diamond Rubber Co. v.
McClurg.
493

as

Everything necessary to sustain over-
ruling of motion to quash service of
summons, presumed in absence of bill
of exceptions. Caldwell Furn. Found.
Co. v. Heat. & Vent. Co.
665

A bill of exceptions will be con-
sidered as part of the record, although
not signed at the end thereof by the
trial judge, when it appears that it is
attached to a cover prepared and used
for such purpose wherein is stated,
among other things, the time of receiv-
ing the bill, and the bill itself contains
a statement to be made by the trial
judge, which he signs, that he received
and allowed the bill on certain dates,
and thereafter turns the same over to
the clerk of courts and is by him filed.
Norwalk v. Jacobs.
691

Transcript attached to plea in bar
not part of bill of exceptions, when.
Whitman v. State.

BLIND PENSION LAW—

735

it is violative of Sec. 2, Art. 4 and
Sec. 1, Art. 14 of the federal constitu-
tion and Sec. 26, Art. 8 of the Ohio
constitution. Davis v. State.
593
"Institution" in Sec. 1, Art. 7,
Ohio Const. is a recognition that blind
should be provided for.

BLOODHOUNDS-

Ib.

selecting the time of performance;
hence, the doctrine that the independ-
ent contractor is alone responsible does
not apply. Honnemeyer v. Fischer. 8
Board fence held to be a building
within meaning of deed. MacGregor
v. Linney.
490

BURGLARY-

Actual occupancy of dwelling house
at the time is held a material element of
crime of breaking and entering an in-
habited dwelling. Mason v. State. 526

It is the duty of the court, in the
trial of an indictment for breaking and
entering an inhabited dwelling house in
the night season, with intent to com-
mit a felony, to instruct the jury as
to the effect of a recommendation of
mercy; but failure so to do is not pre-
judicial error when no request is made
for such instruction.
Ib.

Facts constituting defense in law to
action seeking to compel common car-
rier to deliver cars of freight upon pri-
vate siding of consignee. Phillips Co.
v. Railway.

486

Common carrier may refuse to deliver
cars on private siding until demurrage
in arrears is paid.
Ib.

Common carrier may charge reason-
able demurrage for retention of cars.
Ib.

Lien exists independently of any
stipulation therefor in the contract of
shipment, and, in an action to enforce
the same, it is not necessary to aver
or prove a special contract with refer-
ence thereto. Pitts. C. C. & St. L. Ry.
v. Lumber Co.
588

Relation of principal and agent be-
tween sleeping car company and rail-
road ticket agent shown by custom.
Pullman Co. v. Willett.
649

Demand for return of railroad tickets
not a waiver of right of action for
breach of contract by sleeping car com-
pany.
Ib.

CATTLE GUARDS-

The refusal of the trial court to give
certain requested instructions to the
jury, but which were not, however,
deemed of essence by the party making
the request, not seriously expressed to
the attention of the court, cannot be
urged in a reviewing court.
Ib.

In a criminal case with intent to
kill, where the defendant put in evi-
dence of his previous good character. it
is not error for the court to say to the
jury, that, weight to be given to the
good character of the defendant for
peace and quiet must be such that the
jury, under all circumstances, think it
should receive. Baum v. State. 569

Court failing to charge on a point
on which counsel did not ask a charge
is not error.
Ib.

Charge to jury upon question of
warranty must explain law of patent
and obvious defect. Palmer v. Cowie.
617

Charge to jury upon question of war-
ranty must explain law of patent and
obvious defect.
15.

A special charge to the effect, that
in order to render an assignment of
the contract valid there would have to
be a new agreement between the parties
"simultaneous," will be interpreted to
mean that the new agreement be or
exist between the parties simultaneous-
ly, and not that it must be made be-
tween them simultaneously. Caldwell
Furn. Found. Co. v. Heating & Vent.
Co.
665

The omission of a special instruction
that the jury are not to consider the
statement of plaintiff's claim in his
petition as evidence is not prejudicial
error. Duhme Jewelry Co. v. Hazen.

679

erroneous.

Cleveland & S. W. Trac-
tion Co. v. Hamner.

CHARITIES-

820

The rule adopted by the trustees of
the state institution for the feeble-
minded, that all inmates should be en-
tirely subject to the direction of their
parents, and be discharged therefrom
upon their order or direction, is reason-
737
able. Doren v. Fleming.
Duty of superintendent of institution
for feeble-minded to return escaped in-
lb.
mates, etc.
Courts do not prescribe rules for
charitable institutions, etc.
Ib.

CHECK-

A draft upon a bank, payable on de-
mand, is indistinguishable from a check,
and either, considered alone, imports a
representation that the drawer has
funds to meet it. Semler v. State. 581

CITIZENS-

Village marshal and councilman must
be citizens of United States. State v.
Collister.
329

Foreigner to become citizen must
take oath to support federal constitu-
tion and to renounce allegiance to for-
eign state.
Ib.

Person disqualified at time of elec-
tion to office cannot thereafter qualify.
Ib.
COMPOUNDING FELONY-

Executed illegal contract will not be
set aside by courts. Richter v. Build-
ing & L. Co.
793

Contract is not one compounding a
felony when party injured does not
agree to refrain from prosecuting, etc.
Ib.

Contract to contribute money to set-
tle defalcations not illegal, when.

CONSTITUTIONAL LAW—

Ib.

tutionality of part of act. Wiler v.
Gas & Fuel Co.

257
Revised Statutes 6494 (L. 10071),
which secures to the defendant in at-
tachment the right to appeal from the
decision of a justice of the peace in
overruling a motion to discharge the
attachment, is not unconstitutional sim-
ply because it makes no provision for
an appeal by plaintiff in case the motion
289
is maintained. Hare v. Cook.

Beal law held constitutional. Keep-
ing place and selling held distinct of-
fenses. Dominick v. State.
305

Revised Statutes 1536-60 (L. 3082),
providing for detaching unplatted farm
lands from cities and incorporated vil-
lages and for attaching the same to ad-
jacent townships, is not in conflict of
the constitution. Grover Hill v. Mc-
Clure.
376

That part of original Sec. 2267 (re-
pealed 96 O. L. 96; see R. S. 1536-221;
L. 3612), which provided that no pub-
lic improvement, except sidewalks and
sewers, should be made by cities of the
third grade of the first class until the
majority of the owners of the property
to be assessed therefor had petitioned
the council for the improvement, etc.,
was unconstitutional. Adkins v. To-
ledo.
417

That part of R. S. 6494 (L. 10071),
which authorizes the defendant in at-
tachment to appeal his motion to dis-
solve the attachment to the common
pleas court, when the same is over-
ruled by the justice of the peace, is
not void because the right of appeal
is not given the plaintiff in attachment,
when such motion is sustained by the
justice. Cecill v. Grant.
442

Act 97 0. L. 392 (L. 2956), pro-
viding for the payment of $25 per
capita quarterly to certain worthy blind
persons, is not unconstitutional in that
it is violative of Sec. 2, Art. 4, and
Sec. 1, Art. 14 of the federal consti-
tution and Sec. 26, Art. 8 of the Ohio
constitution. Davies v. State. 593

"Institution" in Sec. 1, Art. 7 Ohio
constitution is held a recognition that
blind should be provided for.
Ib.

Revised Statutes 5182 (L. 8698), pro-
viding that county shall pay juror's fees
held not unconstitutional. State v.
Davies.
601

Revised Statutes 4022a (L. 6604),
providing for attendance of children
in certain districts at nearest school
held unconstitutional. Cincinnati Sch.
Dist. (Bd. of Ed.) v. School Dist. No.
11 (Bd. of Ed.).
824

Petition for improvements by feet
frontage held estopped to attack consti-
tutionality of statute, or assessment be

CONSTITUTIONAL

LAW-Continued.

ing complainant has fully performed his
part. The maxim, “Ex turpi causa non
oritur actio," applies to such transac-
tion. Pape v. Oil Co.
111

A contract to deceive and practice a
fraud upon the public, such as the
agreement of the vendor of a business
to continue it in his own name for the
benefit of vendee, under which the latter
received a benefit from the public which
otherwise it would not have received, is
invalid and unenforceable.
Ib.

Liability of trustee of corporate stock
arises ex contractu as well as in tort.
Martin v. Grennison.

113

Testing validity of rule of court not
contempt of court.
Ib.
confined to the
record in determining whether facts
show contempt of court.

Reviewing court

Ib.

A court of equity has power to cor-
rect mistakes in the estimates of a civil
engineer, notwithstanding the contract
under which the work was being done
provided that the estimates should be
final and conclusive. Cleveland v.
Griffen.
167

Testimony as to fair price of certain
work admissible to rebut testimony as
to market price. Schmid v. Turner.
227

Subsequent legislation held to apply
to prior contracts made with municipal-
ity. Walcutt v. Columbus.
238

Harsh and unconscionable contract
between employer and employe not en-
forced by court of equity. Jennings
v. Bethel.
239

A failure to aver in a suit for ser-
vices upon an implied contract that
the defendant agreed to pay what the
services were worth, is not ground for
a reversal of a judgment for such ser-
vices, where upon consideration of the
whole record it appears that substan-
tial justice has been done. Brown v.
Ricketts.
269
False certificate of auditor does not
invalidate contract, when. Emmert v.
Elyria.
353

Certificate of auditor filed before con-
tract let, is in time.
Ib.
Substantial defect necessary to de-
feat real estate contract of sale. Egle
v. Morrison.
497

Building restrictions against prop-
erty held waived when purchaser makes
contract with full notice thereof. Ib.

To rescind contract for breach of
warranty, parties must be placed in
statu quo. Palmer v. Cowie.
617

Demand for return of railroad tick-
ets not a waiver of right of action for
breach of contract by sleeping car com-
pany. Pullman Co. v. Willett.

649

A special charge to the effect, that
in order to render an assignment of the
contract valid there would have to be