Ib.

INTERPLEADER-Continued.

seeks to recover from the defendant on the same debt or obligation. Con. necticut Mut. Life Ins. y. Lea. 39

When such conflicting claims have been presented it is the duty of the plaintiff, in asking for an interpleader, to set forth generally in his petition the nature of the claims that have been made to him, so that the court can determine from the peti. tion itself if an interpleader is proper.

Ib. The true foundation for such a bill is that two parties have present. ed to the plaintiff claims for the

debt or obligations, which claims are antagonistic to each other, and that the plaintiff is unable to determine which claim, as a mat. ter of fact, is, and which is not well founded. And unless such claims have actually been presented, the plaintiff has no right to ask the parties to interplead.

Ib. It is not the duty of the plaintiff in such case to determine for himself which claim is sustained in fact, but if either claim is not well found in law there is no right to an interpleader. Thus if the plaintiff has become obligated to either party by an independent undertaking so that he does not stand perfectly indifferent between them, he cannot maintain an interpleader.

Ib. A petition in a suit by a bank as assignce of contractors to recover money due from a municipal corpo. ration, in which the corporation has filed an affidavit for interpleader, is not subject to demurrer by one of the impleaded defendants, holder of a mechanic's lien, on the ground that such petition does not state a cause of action against him. Such suit, being originally a simple action at law, was, by the action of the city in demanding interpleader, converted into an equitable action wherein all parties are actors and all parties defendants, seeking rights in a common fund. Bank v. Cincinnati. 545

Where, in such a case, there is nothing in the petition which shows any claim against defendant to the fund in controversy, the court, on his demurrer, has nothing to pass upon, but must overrule the demurrer and leave the question to be settled upon future pleadings and the evidence.

The proper way to set up the fact that the subject of plaintiff's ac

tion is not claimed by one who has been made a defendant by interpleader, is by answer, disclaimer or failure to plead at all, not by motion to set aside or modify the order of interpleader. Such order may be made by the court on the affidavit of the principal debtor and it is not for any alleged claimant to question that order.

The subject of an action is not necessarily the specific amount sought to be recovered by the plaintiff; it is the amount due on the contract itself. Therefore, where there are conflicting claims to the whole amount due, which render it unsafe for the party liable to determine whom to pay, he may avail himself of the statute of interpleader, even though plaintiff claims only a part of the amount due under the contract involved.

Ib. The costs of interpleader. brought by the company for whom the building was being erected, to determine to whom a balance due should be paid, the money being claimed by the contractor and the corrugating iron company, should, under the facts stated, be borne by the corrugating iron company. Block-Pollak Iron Co. v. Iron Co 51

same

INTERROGATORIES

In addressing interrogatories to a defendant corporation it is not necessary to designate by what of. ficer of the company they shall be answered. Carter V. Enquirer Co.

119 Interrogatories attached to a pleading are required to be answered and verified by the party to whom they are propounded. They cannot be answered by his attorney. Wentzel v. Zinn.

97

a

JOINDER OF CAUSES

It is proper to unite legal and equitable causes of action, or one sounding in tort and another in contract, if included in the same transaction, and connected with the same subject matter. Murphy v. Cincinnati.

541

Ib.

JUDGMENTS

A judgment for money cannot be taken against an unincorporated church as such. Males v. Murray.

373 A decree which merely finds that plaintiffs have a valid claim against an incorporated church congregation, without sentence of judg. ment that they shall recover, does not constitute a judgment and is not a sufficient basis for a proceeding in aid of execution under sec. 5464, Rev. Stat.

Ib. The fact that an agreement is offered to the sheriff by the assig. nee that in consideration of the delivery of such goods to him to be sold, the lien of the judgment shall attach to the proceeds as to the original goods, and the proceeds be applied on the execution, and that such goods are of greater value than the amount due on the execution, and can be sold to better advantage by the assignee, is not sufficient for enjoining the judgment creditor and sherift from selling the goods. Mack v. Steinau.

701 A judgment recovered before a justice of the peace for balance due on a purported chattel mortgage covering goods the title to which it is claimed by the vendee remained in the vendor, is res adjudicata in a subsequent suit to enjoin the sale of the goods upon execution. Cavanaugh v. Bloom.

222 Where justice win be promoted thereby, a case will be sent back for retrial on account of an error that is purely technical. Thus, where a petition blended in one count two cases of action, one at law and one in equity against different defendants, a judgment in favor of both defendants, on demurrer to such petition, should be reversed. Hare Brahm.

583

nien may be right in their convictions, it is safer for them to consider well the sources of their convictions before they finally decide against an agreement.

Ib. A disagreement should not be had when an agreement can be reasonably secured by an impartial, candid and fair concurrence of the individual judgment of each juror.

Ib. A jury in an action for personal injuries may well remember that if they disagree that the contention must be settled finally by a jury of twelve men no better qualified to try the issues of fact and upon no better presentation of the case. Ib.

The object of a view by the jury of the premises in dispute is for the purpose of affording them a better understanding, appreciation and application of the testimony submitted at the trial, and not, for the purpose of gathering facts therefrom upon which to make up their judgment. Gilchrist v. Weil.

687

JURY-MISCONDUCT OF-

See New TRIAL.

JUSTICES OF THE PEACE

Section 591, Rev. Stat., providing that justices of the peace shall not have jurisdiction of any action in which the title to real estate is sought to be recovered, extends to actions in which title is involved in the construction of a will, and to determine which we justice would be required to exercise equity jurisdiction. Schaupp v. Jones.

597

JURISDICTION

See COURTS.

JURY

a

Both parties are entitled to the independent and best judgment of each juror, therefore it is the duty of a juror not to yield well grounded conviction because it does not accord with the convictions of his fellow jurors. Dussel v. Street Rd. Co.

LANDLORD AND TENANT-Con.

part of the rent for the premises left in a rentable condition. Gilchrist v. Weil,

687 To justify a lessee abandoning premises or insisting upon termination of a lease under sec. 4113, Rev. Stat., the injury must go to the extent of rendering the premises unfit for occupancy; that is, the injury must go so far toward total destruction as to be no longer suitable to be used for commercial purposes, or such as it was fairly and reasonably designed to accommodate in its orig. inal construction.

Ib. A covenant in a lease to deliver up premises in as good condition and repair as the same shall be put in by the lessor at the commencement of the term, the natural wear and decay excepted, is a covenant to make such repairs only as would ordinarily arise under their occupa. tion, and does not include extraordinary conditions resulting from fire or the elements, and does not prevent application of sec. 4113, Rev. Stat.

Ib. Whether premises occupied under a lease containing a covenant to make the ordinary repairs resulting from occupation were without fault or negligence of the lessees destroy. ed or so injured by fire or the elements as to be unfit for occupancy, so as to relieve them from payment of rent, under sec. 4113, Rev. Stat., providing that lessees shall not be liable to pay rent under such circumstances, is a question to be determined by the jury and the burden is on the lessees to prove by a preponderance of proof the extent of injury or destruction.

Ib. A wetting of the walls, and floors, merely putting out a fire in the furnace by flooding the cellar, if it could be removed and effects overcome in a short time, or mere cessation or interruption to business for a day or two would not alone constitute such destruction or such injury, as would justify a lessee in terminat. ing a lease under sec. 4113, Rev. Stat.

Ib. If the premises in question were so injured by fire, without the fault or negligence of the lessees, as to render them untenantable and unfit for occupancy, the lessees would have the right to terminate the lease notwithstanding the lessor offered to restore and repair them.

Ib.

Notwithstanding the defendants had the right to sub-let premises occupied hy them under a lease, they would not, by sub-letting release themselves from the payment of rent under their own lease, and inquiry as to whether they were undertaking or seeking to lease other premises, get out of and relet the premises occupid by them and into others, before the former were injured by fire, was permissible only to test the credibility and character of the witnesses interrogated.

Ib. Under a lease, of a building to be used for operating heavy machinery, wherein it is provided that lessors shall keep the walls (which, when the lease was made and to the 'knowledge of both parties, were bolted together), in repair and it appears that, upon being notified and finding that the walls were insecure, lessees were ready and willing to repair them, even to the extent of rebuilding, but were prevented from carrying out plans, prepared by an architect, for doing so. by lessees, in the first instance, claiming that the plans were insufficient, and then prevented from making repairs by the city, such lessees are lia. ble for the stipulated rent during the time they retained possession of the building, notwithstanding the fact that it was insecure and untenanta. ble. Sibley v. Ross.

683 Where the lessors of a building under contract to repair its walls negligently or perversely refuse to perform the obligations of the contract, they not only can recover no rent but wouid be liable to the lessees for damages sustained by breach of the contract.

Ib. The grantee of a lessor who had previously granted an estate for years, takes the fee limited by such estate and the right of election to declare the lease forfeited if premises are occupied for gaming purposes, does not pass under the general terms of the lessor's deed. Such grantee cannot assert the forfeiture or maintain an action in forcible de tertion to recover the premises. Ackerman v. Thompson.

361 The provisions of the statute above referred to do not amount to covenants running with the land; nor is the statute a limitation on the fee. It constitutes a condition attached to the estate for years and is

a condition subsequent, not prece-
dent.

Ib.
Section 4276, Rev. Stat., provid.
ing that when premises are occu-
pied for gaming or lottery purposes
the lease or agreement in which
they are held shall be absolutely
void at the instance of lessor, is for
the benefit of the lessor and lessee
cannot render the lease void by us-
ing the premises for gaming pur-
poses. Such lease is not void
ab initio.

Ib.
The right of election is personal
to the lessor and not subject to
alienation, especially in the absence
of a covenant in the lease that con-
ditions therein stipulated or annex-
ed by law shall extend to the assigns
of either party.

Ib.

LIBEL AND SLANDER-

cial orders, but rejected because of
misfits, but which were in fact ready
made clothing, the jury, if they find
the publication libelous, may CON-
sider such fact in ascertaining what
damages, if any, he sustained to his
buisness,

Ib.
In determining damages in libel
the jury may consider the reputa-
tion of the plaintiff as to the par-
ticular business in which he was en-
gaged as well as the character and
methods thereof.

Ib.
A man's known reputation in a
business community where he is
kuown and lives is the resultant of
the opinion of all and not the indi-
vidual opinion of any particular per-
son or persons. Therefore, the jury
cannot go into particular acts to de-
cide the known reputation of a busi-
ness man at the time of the publica-
tion of a libel.

Ib.
The extent of an injury to one
in his trade or business, or in his
reputation in relation to such trade
or business, must depend partly on
the nature of the publication; and
partly on the character of the ex-
tent of his business or trade. A
man's reputation in business may
be so good as to be firmly establish-
ed in public confidence, so that it
cannot well be injured; or it may be
so bad as to be incapable of serious
injury; or while good, yet not so
firmly established in public esteem
as to prevent injury resulting to it.

Ib.
The presence of mitigating cir.
cumstances not making a complete
defense to a. libelous publication
may be considered by the jury in
their discretion to diminish their
assessment of damages.

Ib.
It is a presumption of law that
anything stated in publication
which is derogatory to the business
reputation and trade of the plain-
tiff is false, and that the person in
publishing the same intended to

Words capable of a construction
charging street railway company
with failing to make returns accord.
ing to agreement contained in its
charter, and of keeping two sets of
books, are libelous. Cincinnati St.
Ry. v. Tribune Co.

725
In lihel, the innuendo cannot
adi to, enlarge, or change the sense

the words used, which should
have their proper and legitimate in-
terpretation, taken in the light of
the extrinsic facts averred. Ib.

That where the publication of li-
bel matter was malicious and with
an intention to injure, vindictive or
punitive damages may be allowed.
Kahn v. Cincinnati Times-Star. 599

Nominal damages may be pre-
sumed from the publication of libel-
ous matter but the question of the
amount thereof must be left to the
sound discretion of the jury.

Ib.
Where the plaintiff has suffered
real and substantial injuries in his
business and been otherwise injur-
ed in his business by reason of the
publication of libelous matter, he is
entitled to compensatory damages;
but if he has not suffered any real
or substantial injury, he is entitled
to nominal damages only to vindi-
cate his right.

Ib.
In an action for libel by a cloth-
ing merchant, whose place of busi-
ness was spoken of as a place where
questionable methods were employ-
ed in selling, whose business con-
sists in the sale of goods which he
represented to bę tailor-made, on spe-

of

a

LIBEL AND SLANDER-Continued.

It is a good defense to an action
for libel that if after its publication
the plaintiff agreed with the defend.
ant to accept the publication of an
apology in full of his cause of action,
and that such an apology was pub-
lished, but a mere naked promise un-
supported by a consideration, is not
of itself sufficient to maintain such
a defense.

Ib.
The publication of defamatory
matter, libelous of itself, is presum-
ed to be malicious in law unless pub-
lished in the performance of some
legal or moral duty.

Ib.
Everything printed or written
which reflects on the character of
another and is published without
lawful justification or excuse, is a
libel, whatever the intention may
have been.

Ib.
Any written words are defam-
atory which impute to another that
he has been guilty of any crime,
fraud, dishonesty, immorality, vice,
or dishonorable conduct, or has been
accused or suspected of any

such
misconduct, or which suggests that
the person is suffering from an in-
fectious disorder, or which has a ten-
dency to injure him in his office, pro-
fession, calling or trade.

Ib.
See also ARREST.

Where a master has a duty to
perform and intrusts it to a serv.
ant, who disregards it to the injury
of another, it is immaterial, so far
as the liability of the master is con.
cerned, with what motive or for
what purpose the servant neglects
the duty.

Ib.
A principal is bound to concede
that an agent is acting for him
whenever a reasonably prudent man,
under like circumstances with the
third party caused to act affirma-
tively or negatively, would conclude
that the agent was so acting, pro-
vided the apearance of things upon
which such third person acts has a
causal relation to the injury. Ib.

A larceny of the servant not au-
thorized cr ratified by the master,
immediately following an unwarrant-
ed trespass, which trespass was di.
rected and authorized by the master,
such larceny having been commit-
ted not as a means or for the pur.
pose of performing the master's
work or connected with the tres-
pass, is not within the scope of his
authority, and does not make the
master liable.

Ib.
A master is liable to third per.
sons for the frauds, torts, negligence
and misdeeds of the servant in the
course of his employment, though
wilful and malicious, and although
the master did not authorize or
know of such acts and even forbade
or disapproved them; but when the
act is not within the scope of his em-
ployment, or expressly or impliedly
in obedience to the master's orders,
it is an act of the servant and not of
the master, and the servant alone is
responsible therefor.

Ib.
Where the servant has authority
to commit an act of violence under
certain contingencies, the master is
liable for the consequences of such an
act when committed by the servant
under the belief that such a contin.
gency had occurred, or where he
uses unnecessary violence, or does it
in a manner which makes its con-
sequences unnecessarily injurious,
no matter how wilful, malicious
and unauthorized the acts may be,
or even though he desires to injure
his master.

Ib.
See also NEGLIGENCE.

LIMITATION OF ACTIONS-

A cause of action arising from
undue influence over a weak mind
does not accrue, within the mean-
ing of the statute of limitations, un-
til after the removal of the influ-
ence. Edwards V. Daller.

508
The statute fixes the limitation
in which a suit to rescind a sale
must be brought, which is arbitrary
and without variation, while equity
determines the length of time which
constitutes fatal laches, according
to the circumstances of each par-
ticular case. There is no relation-
ship between the two. Corrigan v.
Rockefeller.

494

MASTER AND SERVANT

The test of liability of a mas-
ter for the acts of his servants, is
whether the injury complained of
was committed by the authority of
the master, expressly conferred or
fairly implied from the nature of
the employment and the duties inci.
dent to it. Harbison v. Iliff. 58

MAYORS-

The mayor of a municipal cor
oporation has no authority to take &
bond and release the defendant from