EMINENT DOMAIN-Continued.
only entitled to two peremptory
challenges.

82

Ib.
3. Facts to be considered by
a jury, in a condemnation suit, in as-
sessing the value of that part of a
turnpike road which is within the
city limits. Avondale v. Turnpike
Co.
4. In condemnation proceed-
ings where defendant is awarded
compensation, to which plaintiff ex-
cepted, and afterwards on proceed-
ings in error procured a new trial,
in which a lower compensation than
in first trial was awarded defendant,
but plaintiff having tendered the
amount of the first verdict: Held,
that plaintiffs could maintain an ac-
tion for the excess of the first verdict
over that of the second. Trustees,
etc., v. Banning.

5.

Ib.

6. In a proceeding to appro-
priate private property, the owner is
entitled to such price as an owner
would ordinarily take, i. e., the fair
and reasonable but full value ascer-
tained by the evidence of experts.
Cincinnati v. Neff.
292

7. Rental derived with such
regularity as to make a continuance
probable is a valuable test, taking in-
to account the probable life of the
buildings, etc.
Ib.

8. In so far as the prospect of
a public improvement adjacent has
already advanced the value, this
must be allowed to the owners. Ib.

9. Buildings are not to be
valued as so much old material, but
as if they were to remain in use on
the lots.
Ib.
10. Lessees are entitled to the
extent that the value or rent for the
unexpired term exceeds the ground
rent, keeping in mind the convenants
as to repairing, etc.
Ib.

II. Movable fixtures are to
be valued by the difference in value
between where they are now and
elsewhere.
Ib.

12. Probabilities are not to be
considered except as they effect pres-
ent value.
Ib.
13. The
owners have the
burden of establishing the values.
Ib.

14. A pole carrying wires

used in the operation of an electrical
railway cannot be set in the sidewalk
in front of private premises without
the consent of the owner of such
premises or compensation first made

Ib.

19. Where a city appropriates
private property to public use for
street purposes, without making
compensation therefor, and the
owner is not estopped to recover
possession thereof, he cannot tender
a deed of the property to the cor-
poration, and then maintain an action
for its value. Cincinnati v. Long-
worth.
196

20. The mere fact that city
authorities have unlawfully appro-
priated private property for street
purposes does not estop the owner
from recovering possession. Ib.

21. Circumstances which
would estop the owner, in such case,
from recovering possession of the
land, would probably constitute a
dedication thereof to public use. Ib.
ENTAILS-

1. J. D. Y., for good con-
sideration conveyed land to his
daughter, L. Y., "and to the heirs of
her body and assigns;" reserving to
himself "the right during his natural
life to control the conveyance of said
premises during the minority of any
of the heirs of the body of said L.
Y." During their minority L. Y.,
her husband, and the original grantor
J. D. Y., joined in a conveyance of
said land to J. C. Y. Afterward J.
C. Y. conveyed said premises to Ē.
F., said J. D. Y., joining in such con-
veyance; and also executing a mort-
gage to E. F. on another tract of land
to indemnify him against any claim

to the land conveyed that might be
made by the children of L. Y. Held;
That J. D. Y., as the source of the
title in expectancy of the heirs of the
body of L. Y., had the legal right to
provide the means of barring the en-
tail, or cutting of the expectancy, by
the same instrument which created
such expectancy. Yoder v. Ford.
675

2. The joining of J. D. Y. in
the deed to J. C. Y. was an execu-
tion of the power reserved by him in
his deed to L. Y.; and did bar the
entail, and cut off the expectancy of
the bodily heirs of L.

Ib.

3. The title conveyed by J. C.
Y. to E. F. is a fee simple absolute,
divested of all interest or estate, pres-
ent or expectant, of the bodily heirs
of L. Y.
Ib.
4. That said mortgage of J.
D. Y. was and is without considera-
tion.
Ib.
EQUITY-

I. A court of equity is not a
court of errors to review the decis-
ions of a board of equalization, but
when a case comes under either of
the heads of equity jurisdiction, a
court of equity will award relief.
Heffner v. Mahoney.
260

2. A court of equity will go
behind the records of the board far
enough to inquire and ascertain
whether it acted and decided within
its jurisdiction, and in the scope of
its authority.
Ib.

3. The court will not set aside
its decision simply because it differs
from the board as to the weight,
force and credibility of the evidence
upon which the latter acted and de-
cided.
EQUITABLE CONVERSION-

Ib.

gestae, is not competent evidence for
the accused. State v. Grays on.

55

2. Unconscious declarations
of a wife not in the known mesence
of a third person are not competent
to show injury to feelings from a
libel, for which the husband is suing.
Commercial Gazette Co. v. Grooms.
489

3. The general rule is that
idenity of persons may be proved by
the concurrence of several character-
istics. Sperry v. Tebbs.
318

4. But in this case the facts
being exceptional-showing defend-
ant at greater disadvantage than
plaintiffs in procuring testimony, the
ordinary rule-that plaintifs must
sustain their case by a preponder-
ance of evidence-will prevail.
Ib.

5. From identity of names,
idenity of persons may be presumed
when the name is not common, and
this presumption is strengthened by
the fact that the surnames and given
names are identical.
Ib.

6. The declarations of a de-
ceased testator concerning his per-
sonal history and family are admis-
sible for the purpose of establishing
identity.
Ib.

7. The standard for compari-
son of handwriting must be proved
by some one who had seen the party
write or sign the paper.
Ib.

8. In an action for damages
for loss occasioned by a conspiracy
by defendants to injure plaintiffs'
business by frightening away their
customers, the declarations by cus-
tomers of their reason for the with-
drawal of their custom, made at the
time of such withdrawals, are com-
petent as part of the res gestae.
Moores & Co. v. Bricklayers' Union.
665

9. Where, in a bill of excep-
tions, an admission is made by coun-
sel for one party, the meaning and
effect of such admission is to be de-
termined from the language used in
connection with all the circumstances
under which it is made, including the
other evidence adduced by that party.
Pierce v. White.
552

10. By the law of Ohio it is.
competent to establish by parol evi-
dence that a deed absolute on its
face, is in fact a trust; but to estab-
lish the existence of said trust the
evidence must be clear, certain and
conclusive. Mannix v. Purcell. 817

II. In considering the tenure
by which church buildings and other
property are held for ecclesiastical
purposes by the Roman Catholic
church in this state, the cannon law

EVIDENCE-Continued.

is admissible in evidence and to be
entitled to the same consideration as
the rules and stipulations of other
voluntary associations established
for benevolent and charitable pur-
poses.
Ib.

12. Under sec. 7284, Rev.
Stat., husband or wife may testify in
favor of each other in criminal

cases; hence the wife may testify
though no third person was present.
State v. Payton.
826
EXECUTORS AND ADMINIS-
TRATORS-

1. A widow has the first right
to administer upon the estate of her
deceased husband. Garrettson, In
396

re.

+
2. The fact that she agreed
with her husband for a consideration
to live separate and apart from him
during their natural lives, and did so
live, and to make no claim on his
estate in any event, does not deprive
her of that right.
Ib.

3. The giving of a bond by
an administratrix is not a jurisdic-
tional requirement, and failure to
give such bond does not, per se ren-
der her appointment void. Mitchell
v. Albright.
301

4. If one who is eligible be
actually appointed, receive letters of
administration, and enter upon the
duties of the trust, a judgment
against her as such administratrix
will not be vacated upon her motion,
based upon the fact that she had not
given bond as required by law. Ib.

5. Marriage of a feme sole
executrix extinguishes her authority
-sec. 6022, R. S., only allowed one
already married to be appointed. It
is not revived by her becoming a
widow, without a new appointment.
Fagan, In re.

180

6. The legal title of all per-
sonalty vests in the representative,
and he is entitled to judgment
against each child for what such
child took away, but not against any
of them for personalty taken with
his connivance by such other chil-
dren as are non-residents or refuse
to return them. Sattler, In re. 440

7. Sections 6053-6059. R. S.,
do not authorize judgment against
those who assist in the taking of the
Ib.

assets.

8. A party holding a claim
against an estate, may bring suit
against the administrator or execu-
tor when, having presented the claim
for allowance, and after ample time
and opportunity for examining its

merits, the same has been unequiv-
ocally rejected. Treasurer, etc.. v.
Walker.

558
9. A formal indorsement of
rejection on the claim by the admin-
istrator is not a prerequisite to the
Ib.
right to bring suit.

10. The inventory of an es-
tate sworn to and filed by the execu-
tor in the probate court, is com-
petent evidence before the auditor
for purpose of correcting tax return
for the estate made by the executors,
and placing omissions therein on tax
duplicate.
Ib.

FALSE PRETENSES-

Two persons being engaged
in a criminal design, and one obtains
money from the other by false pre-
tenses in pursuance of the design,
does not constitute an indictable of-
fense. Anonymous.
649
FINDINGS BY COURT-

The provisions of sec. 5205. R.
S., requiring the court, on request,
to state in writing the conclusions of
facts found, separately from conclu-
sions of law, are not satisfied by the
signing and filing of a written opin-
ion of the court, which does not
state the conclusions of all the vital
facts, necessarily involved in a deter-
mination of the issues, separately
from the conclusions of law. Gray
v. Field.
170

GAS COMPANY-

Jor-

332

3. A failure to give notice is
an irregularity which can be com-
plained of only in a direct proceed-
ing to set aside the order of appoint-
ment in the probate court or to re-
verse it on error.
Ib.
4. If notice is jurisdictional,
presence of the alleged imbecile at
the hearing, with actual notice
thereof, in the absence of any ex-
press statutory requirement is suf-
Ib.
ficent to confer jurisdiction.

5. The due appointment, by
the probate court. of a guardian for
a person as an idiot, imbecile cr lu-
natic, is conclusive evidence of such
person's incapacity to make or to
ratify contracts, or to do any act in
derogation of his guardian's author-
ity pending the guardianship. Jor-
dan v. Dickson.
147
6. As to the ward's capacity
to marry, to make a will, or to com-
mit a crime, the appointment is only
of incom-
prima facie evidence
Ib.

petency.

7. A guardian for a person
will not be appointed on the ground
of imbecility where a clear-headed
person has by reason of age and in-
firmity become weak in mind, sus-
ceptible to influence, of impaired
memory and less careful than form-
erly, if capacity to manage property
still exists. Tempest, In re.

502

any request by or agreement with the
guardian therefor, are necessaries,
and the guardian is liable for their
payment out of his ward's estate.
Dunn, In re estate of.
765

Jo. The fact that such neces-
saries were furnished by a sister of
such ward, does not overcome the
promise which the law implies on the
part of the guardian to pay for such
services.
Ib.

II. The guardianship having
been terminated by death of ward.
and settlement having been made by
guardian with the court, without hav-
ing paid for such services, the estate
of the ward in the hands of an ad-
ministrator is liable therefor. Ib.

12. Where a guardian re-
ceives money from an executor by
order of court, the order being sub-
sequently reversed for want of juris-
diction; in a proceeding to compel
the guardian to charge himself with
such money he is estopped from set-
ting up the legality of such order.
Cloud, In re.
361

13. The money so received is
assets of the estate, and he is liable
therefor in his representative charac-
ter to the party who has a good title
thereto.

HUSBAND AND WIFE-

J.

Ib.

Under the legislation of
1884, a personal judgment cannot be
recovered against a married woman
upon a promissory note signed by
her as surety merely, without any
consideration connected with her
separate estate. Drake v. Birdsall &
Co.

56

2. Money which a wife had in
a building association and which was
with her approval and consent drawn
out by her husband and used by him
to improve his real estate and pay
debts, does not become a debt
against his estate, unless a promise
by him to repay is proven. Koch,
In re Estate.
523

3. Where a husband con-
veyed lands to his wife without valu-
able consideration, and under such
circumstances that the presumption
that an absolute gift was intended is
rebutted, if the transaction be ques-
tioned, the burden is upon the party
claiming under the deed to show that
it was not obtained by an abuse of
the relation of trust between hus-
band and wife. Rankin v. Rankin.
430

INCLINE PLANE RAILWAY-

1. An incline plane railway
purchasing an existing street railway
connected with the incline plane,

INCLINE PLANE RY-Continued.

may, under a proper construction_of
the act of March 30, 1877, (74 O. L.,
66). substitute electricity or other
motive power for horses whenever
the board of public works permits,
without being required to obtain the
consent of the city council. Tele-
graph Assn. v. Incline Plane Ry. Co.
713

2. Section 3445, K. S., does
not compel the incline plane railway
company to cross streets on bridges
or tunnels, except on the inclined
plane and not on surface connecting
roads purchased or leased by it. Ib.

3. The act of 1877 gives such
companies the right to purchase or
lease connecting surface roads. Ib.
INJUNCTION-

1. Under sec. 5242, R. S., of
the U. S., there is no power in a state
to issue a temporary injur ction be-
fore final decree against the receiver
of a national bank. Warner v. Arm-
strong.
426

2.

Before equity will interfere
under sec. 1777 to prevent the change
of the grade of a street as an abuse
of corporate power, it must be shown
that such change is unreasonable
with regard to the use of the street
as a highway. Corry v. Cincinnati.
601

3. A contract for personal
service is not enforcable by injunc-
tion, if it and the proposed breach
are doubtful. Bryan v. Chyne. 599

4. A judgment of a justice of
this state, the record on which shows
service of summo is on defendan
will not be enjoined on the ground
that there was no service, there be-
ing no aud on part of plaintiff.
Dixon. Varnish Co.
481

5. A court of equity will pro-
tect the inventor of a secret process
against its disclosure or unauthor-
ized use by any person obtaining
knowledge of it in confidence.
Foundry Co. v. Dodds.

154

6. The inventor may sell the
secret to another, and thereby vest
in his assignee as full right to pro-
tection from disclosure or use by
persons acquiring knowledge of it in
confidence, as he himself would have.
Ib.

7. The process must be shown
to be a secret to entitle the com-
plainant to protection.
Ib.

8. On preliminary hearing, if
there is any probability that the
complainant's case may be main-
tained, the injunction must be con-
tinued until final decree.

Ib.

9. Sales, by the directors, of
stock in a railroad which had been
purchased with the funds of the road
and are held in trust for it will not
be enjoined, where the sales are to
be at public auction and to the high-
est bidder. Lomis v. Dexter. 287
'o. Where a certain prohibi-
tory ordinance has been passed by a
village, a persor keeping a saloon in
such village, before enjoining the of-
ficials from enforcing it, should have
waited until he had been arrested
under the provisions of such ordi-
nance before he had anything done.
McConnell v. St. Louisville. 341
11. The plaintiff, a telephone
company which has established a
telephone system in a city at vast ex-
pense, using the earth as a return
circuit for an electric current, is en-
titled to an injunction against the
continuance of an electric railway
constructed ten year later under a
single trolley system, also using the
earth as a return circuit, and thus by
induction destroying the use of the
telephone to plaintiff's customers
along the same street. Telegraph
Assn. v. Inclined Plane Ry. Co. 713
INSANITY-