Public Charity-Railroads.
PROMISSORY NOTES-Continued.
19. In order to discharge a surety from liability, under the provisions of
the statute for the relief of sureties and bail (S. & S. 741), the written
notice given by him to the creditor must contain an unconditional re-
quirement to commence an action forthwith; and a notice that the
surety "wishes" the creditor "to proceed against the principal debtor,"
and collect the claim," or have it "arranged in some way," and that
the surety does" not wish to remain bail any longer," is not sufficient.
Ib. 636.
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20. Where the claim is in favor of an estate, and there are several admin-
istrators or executors, a service of the notice upon one of them is suffi-
cient. Ib. 636.
See PLEADING IN CIVIL CASES, 2, 4, 10, 13; EVIDENCE, 1, 2; GUARANTY,
1, 2, 3.
PUBLIC CHARITY. See TAXATION, 1, 2, 3.
PUBLICATION OF NOTICE-
Where notice of the time and place of sale by a sheriff is advertised
for thirty days before the day of sale, in a weekly newspaper, it is no
objection that the first number containing the notice was printed and pub-
lished in advance of the day of the week on which the publication was
usually made. Wilson v. Scott, 636.
QUANTUM MERUIT. See CONTRACT, 1.
QUO WARRANTO-
In quo warranto against a corporation, where it has assumed fran-
chises not granted, and it appears that the certificate of incorporation
does not comply with the requirements of the statute under which it is
organized, the court, in the exercise of its discretion, will oust it of the
franchise to be a corporation. The State v. Central Ohio Mutual Re-
lief Asst. 399.
See BUILDING AND LOAN ASSOCIATIONS, 1, 2, 3; Ohio ex rel., etc. v. Green-
ville Building Association, 101.
1. Railroad companies incorporated prior to the adoption of the constitu-
tion of 1851, and which avail themselves of the twenty-fourth section
of the general corporation act of 1852 (S. & C. Stat. 281), either by
taking leases of the roads of other companies, or by leasing their own
roads to other companies, are to be regarded as thereby accepting a
"provision" of said act, within the meaning of its seventy-first section,
and relinquishing all rights under their charters inconsistent with the
provisions of said act. C., H., & D. R. R. Co. v. Cole, 126.
2. The right to demand and take specified rates of fare, free from legis-
lative control or alteration, is one of the rights thus relinquished by
such companies, and they, therefore, become subject to legislative con-
trol, in that regard, equally as companies formed under said act of
1852. Ib. 126.
3. In order to work such relinquishment or repeal of its chartered rights
inconsistent with said act, it is not indispensible that a certificate of the
company's acceptance should be filed with the secretary of state. It is
the fact of acceptance that binds the company. The certificate is
merely evidence of the fact, and the company can not profit by its
failure to file the certificate. Ib. 126.
4. In an action by a passenger against a railroad company, for being
wrongfully ejected from the cars by the conductor, it appeared that the
rates of fare fixed by the company, and which by its established rules it
was made the duty of the conductor to demand, were higher than those
allowed by law. The plaintiff tendered what he claimed to be, and what
was ultimately held to be the legal rates, and upon refusal to pay more was
ejected from the cars, but without any rudeness or unnecessary violence.
It also appeared that the plaintiff, at the time he took passage, knew
the established rates, and expected to be ejected from the cars, intend-
ing to bring an action for such ejection, in order to test the
right of the company to charge the established rates: Held, that the
plaintiff was only entitled to compensatory damages, and that it was
competent for the company, for the purpose of mitigating damages, or
preventing the recovery of exemplary damages, to give in evidence
subsequent declarations of the plaintiff, tending to prove that his object
in taking passage on the cars was to make money, by bringing suit
against the company for demanding or receiving their established rates
of fare. Ib. 126.
5. The provisions in the twelfth section of the general railroad act of
February 11, 1848 (S. & C. 273), that no reduction shall be made in the
rates of fare and charges for freight allowed to companies organized
under said act, unless where their net profits for the previous ten years
amount to ten per cent. on their capital, is in the nature of a contract
and binding on the state. Iron R. R. Co. v. Lawrence Furnace
Co. 208.
6. Railroad companies organized under said act of 1848, before the adop-
tion of the present constitution, and who have not relinquished their
right to be governed by said act, and had not realized a net profit of ten
per cent. on their capital for the ten years next preceding the passage
of the act of March 30, 1875 (72 Ohio L. 142), are not bound by pro-
visions of the latter act reducing their rates of fare or freight below
those allowed by section 12 of said act of 1848. Ib. 208.
7. A railway company has the right to require passengers to pay fare,
and a rule directing its conductors to remove from the cars those who
refuse to comply with the requirement is reasonable. Shelton v. L., S.,
& M. St. R. R. Co. 214.
8. The fact that a ticket has been purchased by a passenger, which was
afterward wrongfully taken up by a conductor of one of the defendant's
trains, will not relieve the passenger from the duty of providing himself
with a ticket, or paying fare on another train of the defendant in which
he may be a passenger. Ib. 214.
9. In such case, the right of action of the passenger would be for the
wrongful taking up of the ticket, and not for having been removed from
a train by another conductor for refusing to pay fare. Ib. 214.
10. A railroad company is not liable for an injury to a person resulting from
its failure to exercise ordinary skill and care in the erection or main-
tenance of its station-house, where, at the time of receiving the injury,
such person was at such station-house by mere permission and suffer-
ance, and not for the purpose of transacting any business with the
company or its agents, or on any business connected with the operation
of the road. Pitts., Ft. W. & C. R. R. Co. v. Bingham, 364.
11. A railroad company is not liable for injuries occasioned by its buildings
or structures being blown down by storms, where it has used that care
and skill in their structure and maintenance which men of ordinary pru-
dence and skill usually employ; and it is error in such cases to charge
the jury that the company is "bound to guard against all storms which
can reasonably be anticipated." Pitts., Ft. W., & C. R. R. Co. v.
Brigham, 374.
1. In an action upon a recognizance entered into before a justice of the
peace for the appearance of a party in court to answer a criminal
charge, it is not a good defense to show or allege that at the time of
his arrest, and at the date of the recognizance, an indictment against
him for the same offense was pending in said court without showing or
alleging that the party had been arrested upon such indictment. Gage
v. The State, 6.
2. An action on a recognizance taken under the fourth section of the bas-
tardy act of April 13, 1873 (70 Ohio L. 111), and duly forfeited, must
be brought in the name of the state. Clark v. Petty, 452.
3. An error in the name of the township for whose benefit such recog-
nizance is taken, or improperly substituting the name of one township
for another, does not affect its validity against the recognizors. 16. 452.
4. The amount to be recovered, in an action on such recognizance, is the
penal sum therein named, with interest thereon from the date of for-
feiture. Ib 452.
ORD. See Wilson v. Scott, 640.
REMITTITUR. See JUSTICE OF THE PEACE, 11.
RENTS. See EXECUTORS AND ADMINISTRATORS, 2.
REPLY. See PLEADING.
REPRIEVE-
1. By virtue of the provisions of article 3, section 11, of the constitution,
the governor is authorized, of his own motion, to reprieve or suspend,
for a specified interval of time, the execution of a prisoner under sen-
tence of death. Stirling v. Drake, 457.
2. Such reprieve is not conditional within the meaning of section 214 of
the code of criminal procedure, and the assent of a prisoner thereto is
unnecessary. Ib. 457.
3. A warrant from the governor to the sheriff, to suspend the execution
of a prisoner until a day specified, and commanding him on that day,
between hours named, to execute the sentence, is a proper form of re-
prieve, and authorizes the sheriff, on the day named, to execute the
prisoner without the further order of the court. Ib. 457.
RES ADJUDICATA. See BAR, 1, 2.
See GENERAL ASSEMBLY, 1, 2.
See Erwin v. The State, 186.
RETREATING TO THE WALL.
RETURN OF SHERIFF. See SHERIFF, 6.
REVIVOR-
1. The mode provided in title 13, chapter 1, of the code for the revivor of
actions, is not exclusive; but the court has power under section 39, in
the exercise of a sound discretion, to allow the action to be prosecuted
by or against the representatives or successor in interest of a deceased
party. Carter v. Jennings, 24 Ohio, 182: Black v. Hill, 86.
2. A proceeding in error is not properly an action within the meaning of
the code. But the provisions of the code for reviving or continuing ac-
tions in favor of or against the successor in interest of a party, or the
representatives of a deceased party, may be applied to proceedings in
error. Ib. 86.
3. Hence the court is authorized, under section 39, on the application of
the representatives of a deceased party, to allow them to become par-
ties, and the proceedings in error to be carried on in their names, al-
though more than a year may have intervened from the death of the or-
iginal party to the time of the application. Ib. 86.
4. A judgment in personam, under which no specific lien was acquired
during the lifetime of the judgment debtor, can not be revived and en-
forced against the heirs. Miller v. Stewart, 257.
5. Section 96 of the administration act, which provides that unless the
claim has been exhibited to the executor or administrator and has been
disputed or rejected by him, he shall not be liable at the suit of a cred-
itor, does not apply to proceedings to revive an action before judgment,
against the personal representative of a deceased party. Musser v.
Chase, 577.
6. Where the defendant, in a proceeding under the statute to condemn
land for public use, dies during the pendency of the proceeding, or
during the pendency of a petition in error to reverse the same, the re-
vivor of the proceeding must be had in the name of the heirs or dev-
isees, and not of the administrator of the deceased. Valley R. R.
Co. v. Bohn, 633.
RIGHTS RESERVED. See GENERAL ASSEMBLY, 1, 2.
1. Under the act of April 5, 1866, where land-owners whose lands lying
within two miles of the improvement, have been reported as benefited,
and assessed to pay the expense of the same, suffer the proceeding and
work to go on with knowledge of the facts, until the improvement was
substantially finished, they are estopped in equity from enjoining the
collection of the assessments so made to pay for the completed improve
ment. Quinlan v. Myers, 500.
2. Under section 5 of the road improvement act of March 31, 1868, as
amended May 9, 1868, the commissioners have power, at any time be-
fore the confirmation of the report of the apportionment committee, to
include in the assessment any lands which they may find to have been
omitted by the viewers; and this power extends to all lands, thus
omitted, lying within two miles of the improvement, which are bene-
fited by, and ought to be assessed to pay for, the same. Parker v.
Burgett, 513.
3. In a proceeding before the county commissioners, under the road im-
provement acts, it is not necessary that a majority of the resident land-
holders whose lands are finally assessed should have signed the peti-
tion, in order to render the proceedings valid. If the order for the im-
provement was valid when made, it will not be rendered invalid by the
subsequent addition of lands which had been omitted, whether such
lands are owned by residents or non-residents. Ib. 513.
4. The power given to the commissioners, by the acts first above named,
of assessing lands which have not been returned by the viewers, where,
in a pending proceeding, the improvement had been ordered before the
act conferring the power was passed, is not in conflict with section 28,
article 2, of the constitution. Ib. 513.
ROADS, NATIONAL. See NATIONAL ROAD.
SALE, JUDICIAL. See JUDICIAL SALE; SHERIFF, 1, 2, 3, 7.
SALE, SHERIFF'S. See SHERIFF, 1, 2, 3.
SCHOOL DIRECTORS. See Township Clerk, 1.
SECURITY. See PROMISSORY NOTES, 2.
SEDUCTION. See Bowers v. The State, 542.
SERVICE OF PROCESS. See SUMMONS, 1; JUDGMENT, 13, 14.
Sheriff Statutes Examined, Construed, etc.
1. A judgment creditor can not maintain an action against the purchaser
of real estate at sheriff's sale, to recover damages for the breach of the
contract of sale. Galpin v. Lamb, 529.
2. Where it is sought to charge such purchaser with the loss resulting
from a resale caused by his refusal to pay the price at which the prop-
erty was struck off to him at the first sale, the action, if maintainable,
should be brought by the sheriff. Ib. 529.
3. Where the court refused to confirm a sale for the reason that the pur-
chase money had not been paid; and without condition or qualification
ordered the sheriff to proceed to sell the premises as theretofore or-
dered: Held, that no notice having been given to the purchaser, at the
first sale, that the resale was to be at his risk, he was authorized to re-
gard the sale to him as abandoned. Ib. 529.
4. The rule that an officer is justified by his process, not void upon its
face, is one of protection only; and although the officer may execute
such process, yet if it is in fact void for want of jurisdiction in the
court or officer issuing it, he may refuse to execute it, and no action
will lie against him for such refusal. Newburg v. Munshower, 617.
5. Where a joint judgment is rendered against several defendants, part
of whom only were served with process, such judgment is void as
against the parties not served; but as against the parties served it is
voidable only. lb. 617.
6. In an action against an officer for default in executing process of exe-
cution, the plaintiffs, in their petition, described the process as having
been issued upon a judgment recovered jointly against two defendants:
Held, that a judgment rendered against both defendants in an action
in which only one of them was served with process, did not support the
petition, and that there was no error in refusing to allow the record of
such judgment to be given in evidence. Ib. 617.
7. A judgment creditor can not maintain an action against the purchaser
of real estate at sheriff's sale, to recover damages for the breach of the
contract of sale. Galpin v. Lamb, 636.
8. Where it is sought to charge such purchaser with the loss resulting from
a resale caused by his refusal to pay the price at which the property was
struck off to him at the first sale, the action, if maintainable, should
be brought by the sheriff. Ib. 636.
9. Where the court refused to confirm a sale for the reason that the pur-
chase-money had not been paid; and without condition or qualification
ordered the sheriff to proceed to sell the premises as theretofore ordered:
Held, that no notice having been given to the purchaser, at the first sale,
that the resale was to be at his risk, he was authorized to regard the
sale to him as abandoned. Ib. 636.
SHERIFF'S SALE. See SHERIFF, 1, 2, 3.
Words charging a man with being affected with a venereal disease are ac-
tionable in themselves. Kaucher v. Blinn, 62.
SOIL. See CONVEYANCE, 5.
STATUTES EXAMINED, CONSTRUED, ETC.-
1. Section 117 of the code of civil procedure. Copies of instruments at-
tached to petition. Larimore v. Wells, 13.
2. Act of March 30, 1875 (72 Ohio L. 161). Appeal from judgment of a
justice of the peace. Bode v. Welsh, 19.
3. Act of February 19, 1856 (S. & S. 1). Repeal or amendment of stat-
utes.
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