Prosecuting Attorney-Railroads.

PROSECUTING ATTORNEY-Continued.

Sections 4447, et seq., Revised Statutes, and Sections 6443, et seq., General Code, are public moneys within the meaning of Section 1277, Revised Statutes, and Section 2921, General Code. (Overruling Loe v. State, ex rel., 82 Ohio St., 73.) Ib. 3. Duty of prosecuting attorney to recover excess paid on ditch contract, when-It is not only the right but the duty of the prosecuting attorney to bring and maintain an action to recover from any contractor for the construction of such ditch any amount received by him in excess of the amount stipulated in the contract. Ib.

The act of April 16, 1913 (103 O. L., 552), amending Section 5649-3b, General Code, substituting city solicitors for prosecuting attorneys on budget commissions in certain counties, is not an act providing for tax levies within Section 1d, Article 2, Constitution, and is subject to referendum and ninetyday limitation. See State, ex rel., v. Milroy, 301.

PROSECUTOR OF POLICE COURT—

An assistant city solicitor, designated as police prosecutor by city solicitor under Section 1536-663, Revised Statutes, is entitled to compensation from county, when. See Thomas, Jr., v. Commissioners, 489.

PUBLIC MONEYS

Moneys paid into county treasury, under Sections 4447, et seq., Revised Statutes, and Sections 6443, et seq., General Code, relating to location and construction of a county ditch, are public moneys within the meaning of Section 1277, Revised Statutes, and Section 2921, General Code-Prosecuting attorney may maintain action to recover such moneys, when. See State, ex rel., v. Baker, 165.

PUBLIC PROPERTY

Under Section 3283a, Revised Statutes (Section 8767, General Code), board of directors of railroad corporation has primary discretion to determine necessity of appropriation of public property, but under Section 6420, Revised Statutes (Section 11046, General Code), the court has final authority. See Cincinnati v. Railroad Co., 283.

RAILROADS—

Under Section 3283a, Revised Statutes (Section 8767, General Code), board of directors of railroad corporation has primary

Railroads-Real Property.

RAILROADS—Continued.

discretion to determine necessity of appropriation of public property, but under Section 6420, Revised Statutes (Section 11046, General Code), the court has final authority. See Cincinnati v. Railroad Co., 283.

A railroad company is not liable for injuries, received by a conductor, caused by the engineer's misinterpreting conductor's signal, when. See Railroad Co. v. Fouts, 305.

REAL ESTATE SALE

1. Sale of real estate-In partition proceedings-Is judicial sale, when-Rights of bona fide purchaser-Under Section 8543, General Code-A sale of real estate in a partition proceeding, under order of the court, is a judicial sale, and a bona fide purchaser at such sale is within the protection of the provisions of Section 8543, General Code. Weir et al. v. Saw Mill Co., 424.

2. Rule of caveat emptor-Unrecorded instrument-The rule of caveat emptor, applicable to judicial sales, does not charge a purchaser at such sale with knowledge of the existence of an instrument conveying the real estate, or a part thereof, where the instrument has not been recorded or filed for record in the office of the recorder, and where the holder of the same has taken no step to put one on notice of its existIb.

ence.

3. Purchaser of real estate entitled to timber standing thereonAlthough timber sold previous to real estate purchase-When timber sale not filed in recorder's office and purchaser without notice-At a sale of real estate made in a partition proceeding, under order of the court, the purchaser acquires title to the standing timber thereon, although said timber had been sold by the person from whom the parties to the partition proceeding acquired title to the real estate by descent, and said sale of timber had been evidenced by a written instrument, but where said instrument had neither been recorded nor filed for record in the office of the recorder, and where the purchaser at the sale in the partition proceeding had no notice of the sale of said timber. Ib.

REAL PROPERTY—

In an action for specific performance of contract for sale of land, it must be shown that agent's authority was identical with terms of contract sued on-If terms of contract vary from express authority, agreement void and unenforcibleWhere express authority rests in parol, proof of parol author

Real Property—Referendum.

REAL PROPERTY-Continued.

ity must be clear and convincing and also show authority to include all material terms embodied in contract. See Spengler v. Sonnenberg, 192.

Sale of real estate in partition proceedings, is a judicial sale, and bona fide purchaser is within protection of Section 8543, General Code, when-Rule of caveat emptor does not charge purchaser with knowledge of unrecorded instrument, whenPurchaser acquires title to standing timber, when. See Weir v. Saw Mill Co., 424.

The acceptance of a deed and entering into possession binds grantee, and if grantee accepts benefits, he can not reject burdens, when. See Miller v. Railway Co., 499.

REASONABLE CARE

Municipalities are not insurers of safety of streets and sidewalks, but failure to exercise ordinary care and keep same in reasonably safe condition is negligence-Action for damages for negligence in care of sidewalks, presents jury issue, when -What is ordinary care, reasonable safety, etc., are questions for jury, when. See Gibbs v. Village of Girard, 34.

RECORDING DEED

Sale of real estate in partition proceedings, is a judicial sale, and bona fide purchaser is within protection of Section 8543, General Code, when-Rule of caveat emptor does not charge purchaser with knowledge of unrecorded instrument, when -Purchaser acquires title to standing timber, when. See Weir v. Saw Mill Co., 424.

REFERENDUM

The act of April 16, 1913 (103 O. L., 552), relating to tax levy limitation and budget commissions, not being an act providing for tax levies within Section 1d, Article 2, Constitution, is subject to referendum and ninety-day limitation applies. See State, ex rel., v. Milroy, 301.

An initiated law, introduced in house of representatives and referred to committee, which reported it back with amendments which were agreed to, may be submitted to electors, when-Such amendments are incorporated in proposed law, when-In proceedings against secretary of state to enjoin submission to electors, Section 1b, Article 2, Constitution (1912), will not be rigidly construed, when. See Pfeifer v. Graves,

Repeals by Implication-Right of Jury Trial.

REPEALS BY IMPLICATION

Statutes in conflict with Sections 5649-2 to 5649-5b, General Code, limiting tax rate, are repcaled by implication, when. See Rabe v. Board of Education, 403.

RESCISSION OF CONTRACT

A petition to rescind a contract, alleging insufficiency of consideration, is demurrable, when. See Forsythe v. Railway Co., 514.

REVENUE

Sections 5649-2 to 5649-5b, General Code, limit the rate of taxes for any and all purposes, when-Existing statutes in conflict therewith, repealed by implication-Method of determining amount of income from taxes levied or to be leviedBond issues limited, how. See Rabe v. Board of Education, 403.

Franchise stipulation for percentage of gross annual receipts of telephone company, payable into general expense fund, not an assessment for general revenue, when. See Telephone Co. v. Columbus, 466.

REVERSIBLE ERROR

Misconduct of counsel in addressing jury does not constitute reversible error, when. See Driscoll v. Traction Co., 150. Newspaper account of facts of cause, published during trial, does not constitute reversible error, unless proof establishes that jurors read account-Misconduct of counsel during trial. See Dock Co. v. Trapnell, 516.

REVOCATION OF WILL

Revocation of a will is presumed where it has been lost or destroyed before death of testator; and where testator became insane after making will, evidence to overcome presumption of revocation must be certain, satisfactory and conclusive that it was unrevoked and in existence after insanity. See Cole v. McClure et al., 1.

RIGHT OF JURY TRIAL

Constitutional right of jury trial can not be invaded by legislative act or judicial order or decree-Action for damages for negligence in care of sidewalks, presents jury issue, when ; directed verdict is violation of right of jury trial, when— What is ordinary care, reasonable safety, etc., are questions for jury, when. See Gibbs v. Village of Girard, 34.

Rules of Practice-Secretary of State.

RULES OF PRACTICE

Under the constitutional amendments and the schedule, all cases pending in the courts shall proceed to judgment, how-Cases pending in courts of appeals January 1, 1913, may be reviewed by supreme court, when-Cases brought in courts of appeals after January 1, 1913, not reviewable by supreme court, unless they originate in courts of appeals, involve constitutional questions, are felony cases or are cases of public or great general interest-Rules of supreme court for prosecuting error proceedings in foregoing cases-Disposition of cases filed in supreme court prior to this interpretation. See Akron v. Roth, 456.

SALE OF LANDS

In an action for specific performance of contract for sale of land, it must be shown that agent's authority was identical with terms of contract sued on-If terms of contract vary from express authority, agreement void and unenforcibleWhere express authority rests in parol, proof of parol authority must be clear and convincing and also show authority to include all material terms embodied in contract. See Spengler v. Sonnenberg, 192.

SALE OF REALTY

Sale of real estate in partition proceedings, is a judicial sale, and bona fide purchaser is within protection of Section 8543, General Code, when-Rule of caveat emptor does not charge purchaser with knowledge of unrecorded instrument, whenPurchaser acquires title to standing timber, when. See Weir v. Saw Mill Co., 424.

SCINTILLA RULE

Action for damages for negligence in care of sidewalls, presents jury issue if there is some evidence tending to prove essential facts necessary to a recovery; order of trial judge directing verdict is a denial and violation of right of trial by jury, when. See Gibbs v. Village of Girard, 34.

SECRETARY OF STATE

In proceedings against secretary of state to enjoin submission of initiated law to electors, Section 1b, Article 2, Constitution (1912), will not be rigidly construed, when. See Pfeifer v. Graves, 473.