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ASSESSMENT-Continued.

ment, and may assess the cost upon the property, and the own-
er is made personally liable therefor.

Ib.

5. Sewer assessment- Limitation of assessments for improve-
ments to 25 per cent. of the valne applies-Benefit to property-
The limitation of section 2271. R. S., that in cities of the first
grade of the first class, "the tax or assessment especially levied
or assessed upon any lot or land for any assessment, shall not, ex-
cept as provided in section 2272, exceed 25 per centum of the
value of such lot or land after the improvement is made," applies
to sewer assessments. Conner v. Cincinnati,
336

6. Such assessment can not be further reduced by showing
that the sewer is in reality of no benefit to the property in ques-
tion,
Ib.

7. Street improvement--Mode of assessment once adopted-A
municipal corporation having provided in a general ordinance
for the creation of an improvement, that the cost of the same
should be assessed upon the abutting property according to the
feet front, cannot, after the construction of the improvement,
change the method of assessment and provide by another ordin-
ance for its assessmeut upon abutting property according to the
benefits. Dick v. Toledo,
349

8. Property of city must bear its share-In the construction of
street improvements, the property of the city, whether public
grounds or street intersections, should bear its share of the ex-
pense of the improvement,
Ib.

9. Street improvement-Easement for support of slopes on
part of streeet-Damages awarded, may be assessed on whole
length of street improved. Dixon v. Cincinnati,
625

ASSIGNMENT FOR BENEFIT OF CREDITORS.

1. An action brought under section 6352. R. S.. against an
assignee or trustee of an insolvent estate to compel him to allow
a claim in the settlement of his trust, is an equitable action, is
appealable, and neither of the parties is of right entitled to a
jury trial therein. Meader, Trustee v. Root, Ex'r,

81
2. Such action may be brought in the common pleas of the
proper county, or in the Superior Court of Cincinnati,
Ib.

3. Exclusive jurisdiction of probate court of all matters con-
nected therewith-Where a failing debtor makes a general as-
signment for all his creditors, the probate court acquires exclu-
sive jurisdiction of the subject matter of the assignment, and
has full power to hear and determine all questions arising. Far-
well & Co. v. Findlay Dry Goods Co.,
100

4. Money advanced by bank on condition that it should be
protected by chattel mortgage in case of assignment for benefit of
creditors, such mortgage, if eventually executed to the bank, is
not a preference of such bank in fraud of the other creditors of
the firm, and such mortgage will be held valid. Campbell Print-
ing Press & Manf'g Co. v. Bellman Bros. Co.,
360

5. Claim against insolvent estate partly secured by mortgage-
Creditor entitled to dividend on total amount-A creditor of an
insolvent estate who has a mortgage or other security for part of
his claim, is entitled to a dividend on the full amount thereof,
including the amount which he may realize from such security,

ASSIGNMENT FOR BENEFIT OF CREDITORS-Continued.
if together they do not equal the amount of his claim. Cromwell
v. Herron, Adm'r,
448

6. Chattel mortgage given within two months before assign-
ment for benefit of creditors-Lien against operatives of mortga-
gor--Where a chattel mortgage, given within two months before
assignment for benefit of creditors, is produced, it is incum-
bent on the mortgagee as against the lien of the mortgagor's oper-
atives for wages due, under sec. 6355, to show that such a mort-
gage was given in good faith, not to create a preference among
creditors, or to procure a pre-existing debt other than upon real es-
tate for the purchase money thereof. Morey v. Pierce,

ATTACHMENT-

563

Attachment of books of account, prior lien upon credits con-
tained in books-Appointment of receiver-Cumulative remedy-
Under sections 5524, 5539, 5540, R. S., a credior who levies at-
tachment upon books of account, thereby obtains a priority upon
the credits contained in the books. In cases where the provisions
of the statutes for appointing a receiver and notifying the debtors
have been complied with, such proceedings are cumulative upon
the right to proceed by garnishment against the debtors. N. Y.
Rubber Co. v. Gandy Belting Co.,
618

2. Receiver for attachment debtor-Where, subsequent to a
levy of attachment, the debtor corporation obtains a receiver to
wind up its affairs, and the books of account taken in attachment
are turned over to the receiver, under an order to collcet the ac-
counts and bring the proceeds into court, the order is equivalent
to appointing a receiver in the attachment case, and the attaching
creditor may preserve his priority and work out his rights through
the receiver of the corporation,

Ib.

3. Failure of appraisers and sheriff to place value of books
against same, will not deprive the attaching creditor of the bene-
fits of his attachment,

ATTORNEY and CLIENT

Ib.

1. Common law remedy against attorneys who withhold money
or papers from clients--Where an attorney has received, by
reason of his employment, money or papers belonging to his
client, which, after demand, he wrongfully withholds, courts of
common pleas have, independent of statute, the right to compel
him to pay over or deliver the same to the client, and upon re-
fusal to comply with the order of the court, to punish him as for
contempt. And such right does not depend upon the fact that
the money was collected upon a judgment, or received upon a
claim upon which suit was brought. Cotton, Ex'x v. Ashley, 47.

2. Control of court over its officers-The right of the court to
compel its officers to do their duty has not been taken away by
section 564, R. S., providing for summary proceedings against
attorneys receiving money for clients and refusing or neglecting
to pay the same over when demanded,

Ib.

3. Assignment of interest in judgment to attorney in case-
Where a party assigns to his attorney a half interest in a judg-
ment recovered by his services, who in turn assigns his interest
to a third party, and then absconds, but the assignee employs
other counsel to prosecute the case in the higher courts, who
Reprinted on account of errors.

ATTORNEY and CLIENT-Continued.

however are not permitted by the client to attend to the case fur-
ther, he engaging other counsel to do so, such assignment of part
interest in the judgment is valid, and the counsel afterwards em-
ployed by the client to attend to the case has no claim against
the share originally assigned by the client to the attorney. Furst
v. Muller,
178

ATTORNEY FEES

Proceeding to award damages for re-grading street-Failure of
city to pay or proceed with improvement for six months-Right
of property owners to allowance for attorney's fees and expenses.
Toledo v. Jacobson,
220

BASTARDY

1. Recognizance in bastardy- Forfeiture-Application of
money paid in on forfeited recognizance on judgment-Where, in
a bastardy proceeding, defendant fails to appear, the court may
proceed to trial of the case in his absence, and on verdict and judg-
ment against such defendant, the amount of the recognizance
forfeited and paid into court, may be applied on the judgment in
the case, under section 5623, R. S. Pollman v. James,
BIAS-See Prejudice.

BILL OF EXCEPTIONS.

557

1. What bill of exceptions must show-A bill of exceptions
must show that it has been filed, signed and allowed by the court
and made a part of the record before it can receive the attention
of the court on appeal. Corthell v. State,

BILLS OF SALE-See Mortgage (Chattel.)
BOARD OF REVISION-See Taxes and Taxation.
BUIDING CONTRACT-See Contract.

CHARACTER.

570

Good character-Proof of-Effect-Previous good character is
a circumstance to be considered in connection with the other evi-
dence in the case in determining the guilt or innocence of the
accused, bat does not raise any presumption whatever. It is a
circumstance favorable to the prisoner always to be considered,
yet evidence establishing the charge may be so conclusive as to
render evidence of his character unavailing. It is proper that
the jury should consider it when searching for a motive or pur.
pose of deliberation. Moran v. State,

CHARGE TO JURY.

464

1. Exception to charge must be specific-Ordinarily, general
exception to charge of the court given upon the trial of a cause
to a jury, will not avail the party excepting. The exception
should specifically point out the portion of the charge excepted to.
Weber v. Wiggins,

18

2. Charge in separate and disconnected propositions improper
---Where the common pleas court, in its charge to the jury, only
gave separate and disconnected propositions requested by coun-
sel for both plaintiff and defendant, with no general charge in
the court's own language, so as to place the cause before the jury
fully and completely, and thus enable the jury to make an in-
telligent application of the principles of law to the facts; held,
error. Bowman v. Fuher,

231

COMMERCIAL AGENCY-See Mercantile Agency.

COMMON CARRIER.

R. R. Co. not liable for value of goods lost for having deliver-
ed same to stranger to them, who had ordered them and who pro-
duced invoice, without requiring identification. L. S. & M. S.
R. R. Co. v. Luce & Co.,

CONDITIONAL SALE.

543

1. Conditonal contract of sale of piano made in other state
and there recorded under state law-Removal to Ohio-Failure to
record contract here under Ohio law -Death of purchaser in Ohio,
leaving insolvent estate-Rights of administrator-Although the
vendee could have replevined the piano from P. in her lifetime,
yet at her death the piano became assets in the hands of her per-
sonal representatives for the benefit of her creditors. Jones v.
Molster, Adm'r,

CONSIDERATION.

1.

432

Father distributing his land among his sons Considera-
tion-Where a father enters into a written contract with his four
sons, by which he sells and agrees to convey in fee simple his
lands to them, each to receive the deed therefor as a share of the
father's estate, the father to receive rents for the lands during
his natural life if he wished to claim the same, such contract is
on a good consideration. Pence v. Blackford,
204

2. Agreement to forbear suit or to extend time of payment
sufficient consideration for accommodation endorsement. Colver
v. Wheeler,

CONSTITUTIONAL LAW.

604

Failure to pay alimony contempt--Court may imprison-Upon
sufficient evidence courts have the power to imprison for con-
tempt on failure to pay alimony. It is not a debt, and an im-
prisonment for failure to perform it not against the provisions of
the constitution. Effinger v. State,
389

The mechanics' lien law of 1894 constitutional - Gimbert v.
Heimsath,
339

CONTEMPT OF COURT.

1. Contempt of court for failure to pay alimony decreed-- Evi-
dence required of ability to perform order of court-Power of
court to imprison as for contempt. Eflinger v. State,
389

2. Character of contempt proceedings--Proceedings in con-
tempt under our code are not provisional remedies, but are spe-
cial proceedings. Section 5644, R. S., contemplates a trial on
such evidence as is competent in ordinary trials before the court.
The party accused has the right to meet the witnesses for the
prosecution face to face, and the opportunity to cross-examine,
and affidavits can therefore not be used,

Ib.

3. Ability to perform order --Under sec. 5644, R. S., the court,
before imprisoning for failure to perform, should find the accused
incapable of performing, unless the court should find that the ac-
cused fraudulently put it out of his power to perform.

Ib.

4. When failure to pay contempt-Upon sufficient evidence
the court has the power to imprison for contempt on failure to
pay alimony. It is not a debt, and an imprisonment for failure
to perform is not against the provisions of our constitution or our
statutes,
Ib.

CONTRACT-See, also, Independent Contractor.

2

1. Right of party accrues when party to a contract repudiates
it-A suit brought April 20, 1893, on a contract for delivery of
stone during the year 1893, is not prematurely brought, where it
is alleged that the defendant "disregarding its promise and agree-
ment in that behalf, wholly refuses and declines to fulfill and per-
form its agreement. Sloss Marblehead Lime Co. v. Smith, 203
Contract-Law of the place forms part of it-The law of
the land where the contract is made enters into the contract and
forms a part of the same; and the scope and effect of the contract
is determined by the law, and the parties to a contract are governed
in their rights, duties and liabilities under the same by the law,
and by their choice they make the provisions of the law that thus
enter into their contract olbigatory upon themselves. Gimbert v.
Heinsath,
339

3. Power of legislature-The power of the legislature to attach
binding incidents and obligations to certain contracts, is limited
to cases where in the statute which attaches the obligation, at the
same time gives or leaves to the party, upon whom it is laid, ade-
quate means of protection against the consequences of it, Ib.

4. Alteration-Consideration necessary- -There must be a new
consideration to support a modication or an alteration of a pre-
vious contract, Marshall v. Ames,

369

5. Building contract, work to be satisfaction to contractee-
The doctrine that if a person substantially performs a building
contract, he may recover the contract price subject to recoupment
for damages as to the particulars in which the contract has not
been literally performed, has no application to a contract which
provides that the contract shall be done to the satisfaction of the
owner or a third person,

Ib.

even

6. Same-In case of such contract, the person who contracts
to do the work cannot recover if the other party to the contract
or the third person is, in good faith, dissatisfied with the per-
formance of the contract, even though the court or jury might
think they ought to have been satisfied, and this is so.
though, from the nature of the contract, the contractee is obliged
to keep the thing upon which the work has been performed, and,
hence, to retain some benefit from the labor which the contractor
has performed,
Ib.
7. Damages-If a contract is not performed according to its
terms, the contractee may recover such damages as he may have
suffered by the non performance of the contract,

Ib.

8. Foreign contracts-Comity-Contracts made in other
states, valid there, will be enforced in this state, unless they con-
travene the laws of this state. Jones v. Molster, Ad'r,
432

9. Construction of contract for the court--Where the facts in re-
lation to a contract to perform certain work and to furnish men to
do it, are defined entirely by a written agreement, which is put
in evidence and undisputed, it is error to submit to the jury any
question in regard to the construction of such contract. McCaffer-
ty v. Dock Co.,

CONTRIBUTORY NEGLIGENCE-See Negligence.

CORNER LOT ASSESSMENT-See Assessment.

457

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