merce, no matter what the intent was on the part of those who signed it. We think that the fourth section of the act invests the government with full power and authority to bring such an action as this, and if the facts be proved an injunction should issue." A single railroad, let alone a combination of railroads, is essentially a monopoly as respects three-fourths of the points along its line. These associations affect rates only at the few competing points. They are attempts simply to extend to competing points the monopoly which every road possesses over the far more numerous non-competing points. The decision of the supreme court aims to strike down the monopoly respecting non competing points untouched. SUPREME COURT OF OHIO. Causes to and including No. 4666, on the general docket, are called and marked submit ted. The next call will be to and including No. 4773. General Docket. TUESDAY, March 31, 1897. 4514. H. M. Douglass v. Augustus Allen. Error to the circuit court of Meigs county. WILLIAMS, J. In order to maintain an action for malicious prosecution, it must be shown that the prosecutions was legally terminated before the commencement of the action; but it is not essential that the plaintiff shall have been acquitted of the charge on a trial of the merits; the entry of nolle prosequi, followed by his discharge, is sufficient. Judgment affirmed. 4421. A. E. Pavey v. I. T. Vance et al. Error 1. Where one uses a way over the land of another without permission as a way incident to his own land and continues to do so with the knowledge of the owner, such use is, of itself, adverse, and evidence of a claim of right. And where the owner of the servient estate claims that the use was permissive, he has the burthen of showing it. Justice Peckham in his decision says that, "It is true that as to a majority of those living along its lines each railroad is a monopoly." Competition, therefore, to the circuit court of Highland county. fails in that case to determine questions MINSHALL, J. of reasonable or unreasonable restraint, and the latter must in the same manner be assumed. This does not, of course, concern the further application of the law to the single road, but it does plainly bring the court around to apparent con demnation of private control of railroads, is against public policy and the restraint of trade. The reason employed in the opinion can lead to no other conclusion. The language of the supreme court would seem to be sufficiently plain. It is, in effect, that combinations entered into by common carriers for the purpose of maintaining rates are violative of the Sherman Anti-trust law, which is held to apply. Efforts will doubtless be made to get around the opinion by ingeniously worded agreements. But such expedients to defeat the obvious purport of a declaration by the highest court in the land, must inevitably intensify the anticorporation feeling which prevails among the masses, and lead to more stringent legislation. There is danger that defiant evasiveness will, in the end, be productive of greater injury to the railroads than they can possibly gain from shiftiness. 2. When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land. Judgment affirmed. 4485. Francis L. Hartman v. Samuel A. Hunter, treasurer, etc. Error to the circuit court of Lucas county. 1. Exemption from the operation of a stat ute 1 miting actions and in its terms containing no exception is a privilege of sovereignty, and it can be asserted only by or on behalf of the sovereign. 2. A civil action brought by the treasurer of a county under section 1104, Revised Statutes, to enforce assesssments for the construction of township ditches is, by the second clause of section 4891, Revised Statutes, barred in six years after the cause of action arises Judgments of circuit and common pleas courts reversed. 4217. William Peter v. The Union Manufacturing Company; Error to the circuit court of Lucas county. one to stand as heir-at-law to the declarant in the event of his death, and for the making of an entry upon the journal by the judge and a record of the proceedings, it is not essential that the declaration be made in open court, nor that it be made in any particular place. Such declaration may be made before a judge of the probate court within his county at a place other than the office of said court. 2. The entry which the statute requires the judge to make upon his journal and the record of the proceedings, do not constitute a judg ment, and it is not essential to the validity of the proceedings that the order for such entry be made by the court. made by the judge. It is sufficient if it be 1. The directors and managing officers of a corporation for profit should be held to, strict good faith in all dealings between themselves and the corporation. Where, however, the corporation is deeply in debt and pressed for money to continue its business; where a large proportion of its capital stock remains unsubscribed for, a great part of which was created by an unauthorized increase of the same, for which such directors and managing officers were chiefly responsible, though acting in good faith and in the belief that their action was regular; where such directors and managing officers believe the only practicable means of obtaining money to relieve the necessities of the corporation, is by disposing of this stock; where accordingly they make diligent but unsuccessful efforts to dispose of the stock at par; where they offer it at a large discount to all its stockholders and generally to others without takers, such directors and managing officers and some others without intending to secure personal advantage, but with a view to aid the corporation, take parts of the stock at the discount price, either paying cash therefor, or canceling debts due to them from the corporation, and they do not afterwards derive any profit on account of such stock, bad faith should not be imputed to them, either in re-appealed to the advisory committee, and in spect to such increase of capital stock or their acquisition of it. If the corporation subsequently become in solvent the difference between the discount price and the par value of the stock thus purchased, should not be regarded as assets of the corporation, as between those stockholders who bought at a discount and those who did not. In such case the holders of previously issued stock for which they had paid par. should not be allowed to assert the invalidity of the issue of the discounted stock without consenting that its purchasers be placed in statu quo. 2. An owner of stock in a corporation for profit created under the laws of this state, in the absence of a by-law to the contrary, has absolute power of disposition over the same, and may dispose of it by sale or gift at his pleasure. If the sale or gift is made in good faith, and the shares, sold or donated, are transferred on the books of the corporation to the purchaser, or donee, the transfe.er does not remain an equitable owner thereof, or thereafter continue liable to assessment, under the statute of this state, for the payment of future corporate debts, although at the time of the sale or donation, the corporation was insolvent, and the purpose of the former owner, in disposing of the stock, was to escape such future liability. Judgment reversed in part and affirmed in part. 4344 and 4457. Elizabeth Bird et al. v. James Luther Young. Error to the circuit court of Fairfield county. SPEAR, J. 1. In giving effect to the act of April 29, 1854, (sec. 4182, Revised Statutes), which pro vides for the filing of a declaration appointing 1 Judgment affirmed. 4291. Baltimore & Ohio Railroad Company v. John Stankard et al. Error to the circuit court of Erie county. BURKET, C. J. One of the rules in the relief department of beneficiaries should be submitted to the dea railroad company, provided that all claims of decision should be final and conclusive, unless termination of the superintendent, whose mittee should be final and conclusive upon all case of such appeal, the decision of the comparties without exception or appeal: Held, that after the rejection of a valid claim by the advisory committee, the beneficiary could maintain an action in court for the recovery of the money due thereon, and that such rule was not a bir to the action. Judgment affirmed. 5015. Isaac N. Bowen v. The State of Ohio. Error to the circuit court of Wood county. BY THE COURT: It is not a defense to a prosecution under the act of April 16, 1890 (87 O. L., 216), that, an agreement of separation was entered into by the accused and his wife, by which the latter, who was given the custody of their minor children, agreed, for a valuable considth it after the mother became unable to sup eration to furnish them all proper support, and port the children, the accused offered to support them if she would surrender their custody to him, which she refused to do. Judgment affirmed. General Docket. FRIDAY, April 2, 1897. 5510. James R. Spankle v. The City of Cleveland et al. Error to the circuit court of Cuyahoga county. Judgment affirmed. The Rooney contract does not include the subject matter sought to be enjoined. 5512. The State of Ohio ex rel. James S. Ribkey, sheriff, v. E. G. Coffin, warden of the penitentiary Petition for mandamus. Peremptory writ of mandamus allowed as prayed for. Per curiam report. THE OHIO DECISIONS SERIES, COVERING EVERY BRANCH OF OHIO CASE LAW. SUPREME COURT. One volume a year advance sheets of decisions announced by the Supreme Court. FEDERAL COURTS. One volume a year of cases decided in Federal Courts held in Ohio, covering Ohio cases. CIRCUIT COURTS. One volume a year containing all reported cases decided by the Circuit Courts of Ohio. LOWER COURTS. One volume a year made up of select cases decided in the Superior, Common Pleas and Probate Courts. This series began in 1894, but will e fifled oon by reprints of earlier cases, with additions of many unpublished ones. THE PROMINENT FEATURES OF THIS SERIES ARE: Large Volumes. No reports ever published in Ohio have had half the amount of matter, or the completeness and correctness. Advance Sheets. The cases decided each week are put in type by us as fast as received, and advance sheets of the matter for the different volumes printed, and sent out weekly as a aupplement to theOHIO LEGAL NEWS, free to all its subscribers. Permanent Round Volumes take the place of returning the weekly parts for binding, as the advance sheets are upon poor paper, not for binding, and may be destroyed when the bound volumes are received. In this way, instead of having the weekly parts loose abou the office, some of which become lost, and the whole inaccessible, you get indexed volumes for quick reference, as soon as complete. SUBSCRIPTION PRICE. Volumes bound in full sheep, delivered to subscribers, $2.50 per volume. With volumes one, two and three, the Ohio Digest for 1895 without charge. Free from Errors. These volumes will be free from the mistakes, erattas and pages reprinted to correct errors, appearing in every volume of the Law Bulletin reports. The Cheapest, Fullest and Best Ohio Reports, and as official as possible, as every decision is read and approved by the rendering court before final publication. THE LANING PRINTING CO., Publishers, NORWALK, OHIO Subscriptions and business communications should be sent to the publishers. Mayor-elect Samuel L. Black, of Columbus, has tendered the position of director of law under his administation to Judge S. N. Owen, and the latter has ac SUBSCRIPTION PRICE. $2.00 PER YEAR, IN ADVANCE. cepted. Judge Owen served five years One volume each year, beginning with November. Ohio Decisions. on the supreme court bench, and before. that served on the common pleas bench of Williams county. He is a distin The publishers of the LEGAL NEWS publish annually guished jurist of known ability. three volumes, which contain the reported decisions of the courts of record of the state, under the title of Ohio Decisions. Advance sheets of these volumes for temporary use of subscribers are issued each week as supplements to the LEGAL NEWS, without additional charge to subscribers to the volumes. Bound Volumes. J. D. Henry, for twenty-five years a member of the Cincinnati bar, died of paralysis at his home on Shillito street, of Ohio Decisions subsequent to volume 3, delivered Avondale, Monday evening of this week. express paid, to subscribers. 82.50 per volume. Supreme Court Reports. The publishers of the LEGAL NEWS now have the contract for publishing the Supreme Court Reports of the state, and are enabled to attach advance sheets of these volumes to the LEGAL NEWS, as a second supplement, without charge. These sheets are only for temporary use and do not include indexes. New Subscriptions. New subscriptions can begin at any time, and back the beginning of the subscription year will be supplied if desired; but no advance sheets of the Ohio Decisions will be supplied back of the commencement of the current volume. numbers of the part devoted to the LEGAL NEWS to Vol. 1 of Ohio Decisions, Circuit Courts, began November 23, 1895. Vol. 1 of Ohio Decisions, Lower Courts, began November 23, 1895. Bound Volumes. Bound copies of Vol. 1, Vol. 2 and Vol. 3 of the Ohio Decisions can be had at 82.50 per volume, if bound in full sheep, or 82.25 per volume in half sheep. Bound volumes of Vol. 1, OHIO LEGAL NEWS (Toledo Legal News) will be furnished at $2.00 per volume. The stroke which carried him off was received on the night of April 5th. Previously to entering upon the practice of the law he was a school teacher in Guernsey county, this state. His age was fifty-seven. He was largely employed in the settlement of estates and other office pr ctice. He was a painstaking lawyer and a man of high character. Judge Jelke, of the Hamilton common pleas, holds that mandamus will not lie against the county auditor to compel him to issue a second voucher in favor of the Boston Woven Hose Company, for the sum of $319.50 for goods sold by its agent, A. S. Browne, to Longview Bound copies of Vols. 1, 2 or 3 of Ohio Decisions, or advance sheets, at 81.00 per volume in full sheep or 75 Asylum. The bill had been approved of the LEGAL NEWS will be sent in exchange for the cents in half sheep. by the county commissioners, and a Entered at the Postoffice, Norwalk, Ohio, as second warrant was issued by the county audi class matter. THE FOREMOST OHIO LAW PAPER. tor in favor of the Boston Woven Hose Company. The warrant was delivered to their agent, who collected the money from the county treasurer and thereafter suicided without accounting for it The growth of this paper during to his company. Judge Jelke held that 1896 has been so marked that we con- it was not an unwarranted stretch .of fidently assert that it now has a greater authority for the auditor to deliver the circulation than any other Ohio law warrant to Browne, but that Browne, be paper. It also contains so much more legal matter that we are justified in claiming it to be the leading paper in its class. ing a mere selling agent, the payment of the warrant by the county treasurer, to him was wholly without authority, and that the company's remedy is by an action at law. An important decision was rendered lumber company became insolvent. by Judge Johnson of Milwaukee, Wis- Koontz & Phillips attempted to stop the cunsin, last week Wednesday, in the delivery of the lumber, but found that South Milwaukee crossing war between it had been turned over to the railroad the Chicago and Northwestern Railroad company in payment of an old freight Company and the Milwaukee Electric bill. The firm thereupon sued the railRailroad Company. The court in ren- road company to recover the value of dering its decision say in effect that the the lumber which amounted to $262, electric companies cannot make use of basing its claims on the right of stopa wagon road as a right of way, where page in transitu. The railroad company it is the intention to carry anything ex- contended that this right did not apply, cept passengers, without paying damages because the goods arrived in Toledo beto the abutting property holders. This fore the failure of the consignee. Judge applies to cities as well as to the towns Pugsley found for Koontz & Phillips and villages. While the steam companies and gave them judgment for the amount have been obliged to condemn and pay named. handsomely for their right of way, the electric companies have been making use of the public highways without paying one cent therefor. Judge Ferris of the Hamilton probate court refused to enjoin the distribution of $146,000, which has come into the hands of the executors of Elizabeth Bates. The application for injunction was made by the Union Stock Yards Company, successor in the title to property, the title to which was guaranteed by a bond in the sum of $150,000, executed by E. S. Bates, deceased, (husband of Elizabeth Bates), and others. The contentions of the company was that there is an outstanding interest in the title, and the company therefore has a claim against the estate not yet due, but which will arise if the title proves defective. Judge Ferris held that the law favors the distribution of es At a recent meeting of the Gloversville Bar Association, of New York, after some discussion it was decided that the practice of giving free consultation and should be eliminated, and that thereafter advice so long indulged in by lawyers all consultations and advice given by members of the association should be charged for. a The Gloversville association has taken step in the right direction, and it should be universally adopted by every bar association throughout the county. In the smaller cities and towns the practice of making no charge for consultation and advice has been the rule rather than the exception and one which it has been a difficult matter to do away with. A lawyer's legal knowledge is his stock, his capital, his merchandise. He has spent money and valuable time to tates, that it is for the purpose of distri- why he should give it to another's use acquire it, and there is no more reason bution that estates are administered, and and benefit without receiving pay for it that no reason was shown why a different than there would be for a clothier to give rule should apply to the estate at bar, the petitioners having an adequate rem-stock. If the advice of a lawyer is away his goods or the merchant his edy at law: worth anything, or if it is worth asking for, it is certainly worth paying for. The principle of charging for advice should be strictly adhered to. THE CAT IN COURT. Judge Pugsley of the Lucas common pleas court, rendered a decision last Saturday in a case in which very little money was involved, but which is important because of a point of law that was involved. Some two years ago the Gashe Lumber The little village of Clinton, Oneida company of Toledo ordered a car load of county, New York, is al excitement lumber from Koontz & Phillips, which was shipped via the Wheeling and Lake Erie railroad. While the lumber was in transit, or before it was unloaded, the over a lawsuit about a cat. Not far from the college located in that peaceful village lives a very respectable and amiable maiden lady who was the possessor |