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as

at-

to him. Mt. Adams & E. P. Ind. Ry.
v. Winslow.

358
15: An injunction restraining
its continuance will issue upon the
application of such property owners.

Ib.
16. Neither a grant from the
municipal authorities, nor the fact
that such pole is used as one of the
instrumentalities of public travel,
will justify such an impairment of
the right of the abutting owner to
have the street in front of his prem-
ises open and unobstructed
tends the planting of such a pole in
the street.

Ib.
17. In cases relating to the
rights of abutting owners in public
streets, the question is not whether
the public use contemplated is of one
kind or of another, but whether such
use results in a taking of private
property.

Ib.
18. If it does, compensation
must be first made, and the abutting
owner cannot be obliged to suffer the
loss of his property and to rely upon
an action at law for the recovery of
damages.

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.

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 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 É.
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

21.

to

Entails.

EMINENT DOMAIN-Continued.

only entitled to two peremptory
challenges.

Ib.
3. Facts to be considered by
a jury, in a condeinnation suit, in as-
sessing the value of that part of a
turnpike road which is within the
city limits. Avondale v. Turnpike
Co.

82
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.

385
5. That the statute of limita-
tions does not commence to run
against such action until the second
verdict.

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, kecping in mind the convenants
as to repairing, etc.

Ib.
u. 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.
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

14. A

Equity-Evidence.

2.

Ib.

.

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.

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 hveirs
of L. Y.

Ib.
4. That said mortgage of J.
D. Y. was and is without considera-
tion.

Ib.
EQUITY-

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.

Ib.
EQUITABLE CONVERSION-

Real property purchased with
partnership funds and used for part-
nership purposes, is thereby equit-
ably converted

into

personaltv.
Fisher v. Lang.
ERROR-

The provisions of sec. 2253, R.
S., allowing proceedings in error, are
intended to give the aggrieved party
a substantial right, and to give him
the opportunity of having any error
corrected, and to secure the benefit
of_such correction. Trustees, etc.,
v. Banning.

gestae, is not competent evidence for
the accused. State v. Grays in. 55

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

Ib.

385
EVIDENCE-

1. On trial of one charged
with murder, an exculpatory declara-
tion of deceased, which is neither a
dying declaration nor part of the res

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.

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 niust be clear, certain and
conclusive. Mannix v. Purcell. 817

11. 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

178

Executors and Administrators-Gambling.

558

sec.

es-

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

7284, Rev.
Slat., 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
assets.

Ib.
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.

9. A formal indorsement of
rejection on the ciaim by the admin-
istrator is not prereqnisite to the
right to bring suit.

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

Ib.

.
FALSE PRETENSES-

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

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
FIXTURES-

Stills in a glycerine factory
connected with the motive power of
the steam engine, resting ini part on
a brick foundation laid in the build-
ing, and in part attached by screws
to the ceiling to confine them to
their proper places for use, are not
fixtures, but chattel property. Hy-
man v. Gordon.

447
FRAUDULENT CONVEYANCES

Creditors charged with notice
of a deed are charged only with no-
tice of what it contains, and if the
deed is for a full consideration on its
face, it is not notice that the deed is
fraudulent. Zieverink v. Kemper.

455
GAMBLING-

Under sec. 4276, R. S., which
gives the person losing money in
gambling or betting, a right of ac-
tion to recover the same from the
winner thereof, 110 action lies against
the broker who paid out the nioney
so lost under the direction of the
person losing. Roulstone v. Moore.

275

Gas Company-Incline Plane Railway.

an

GAS COMPANY

The comsumer of gas becom-
ing occasional or exceptional
user in cases of emergency, by rea-
son os having introduced an electric
light system, ceases to be a user as
contemplated by statute and the com-
pany has a right to take out the con-
nections and meters. Adams Ex.
Co. v. Gas Co.

389
GUARDIAN AND WARD-

A foreign guardian, in-
eligible to an appointment as such in
Ohio, will not be permitted to col-
lect money due the ward in this state.
Habighurst v. Stevenson.

162
2. In the hearing of an appli-
cation for the appointment of a
guardian of an imbecile befure the
probate court, notice to the alleged
imbecile is not jurisdictional. Jor-
dan v. Dickson.

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-
ficent to confer jurisdiction. Ib.

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 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 niarry, to make a will, or to com-
mit a crime, the appointment is only
prima facie

evidence of incom-
petency.

Ib.

.
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

8. The use by a guardian of
his ward's money in his own busi-
ness and its loss thereby, to consti-
tute embezzlement, must be a fraud-
ulent purpose although the statute is
silent as to intent. State v. Meyer.

any request by or agreement with the
guardian therefor, are necessaries,
and the guardian is liable for their
paynient 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 ir the hands of an ad-
ministrator is liable thercior. 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

so re eived is
assets of the estate, and he is liable
therefor in his representative charac-
ter to che party who has a good title
thereto.

Ib.
HUSBAND AND WIFE-

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 lierjhusband and used by him
to improve his real estate and pay
debts, does not become debt
against his' estate, unless a promise
by him to repay is proven.

Koch,
In re Estate.

523
3. Where husband con-
veyed iands 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-

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

T.

or

a

a

746

1.

9. Care support, and nursing
furnished an insane ward, without

Injunction-Insurance, Fire.

INCLINE PLANE RY-Continued.

9. Sales, by the directors, of

stock in a railroad which had been
may, under a proper construction of

purchased with the funds of the road
the act of March 30, 1877, (74 O. L., and are held in trust for it will not
66), substitute electricity or other

be enjoined, where the sales are to
motive power for horses whenever

be at public auction and to the high-
the board of public works permits, est bidder. Lomis v. Dexter. 287
without being required to obtain the

'o. Where a certain prohibi-
consent of the city council. Tele-

tory ordinance has been passed by a
graph Assn. v. Incline Plane Rv. Co.

village, a persor keeping a saloon in

713
2. Section 3445, R. S., does

such village, before enjoining the of-

ficials from enforcing it, should have
not compel the incline plane railway waited until he had been arrested
company to cross streets on bridges

under thc provisions of such ordi-
or tunnels, except on the inclined

nance before he had anything done.
plane and not on surface connecting McConnell v. St. Louisville. 341
roads purchased or leased by it. Ib.

II. The plaintiff, a telephone
3. The act of 1877 gives such company which has established a
companies the right to purchase or

telephone system in a city at vast ex-
lease connecting surface roads. Ib.

pense, using the earth as a return
INJUNCTION-

circuit for an electric current, is en-
1. Under sec. 5242, R. S., of

titled to an injunction against the
the U. S., there is no power in a state

continuance of an electric railway
to issue a temporary injur ction be-

constructed ten year later under a
fore final decree against the receiver

single trolley system, also using the
of a national bank. Warner v. Arm-

earth as a return circuit, and thus hy
strong.

426

induction destroying the use of the
2. Beiore equity will interfere

telephone to plaintiff's customers
under sec. 1777 to prevent the change

along the same street. Telegraph
of the grade of a street as an abuse

Assn. v. Inclined Plane Ry. Co. 713
of corporate power, it must be shown INSANITY-
that such change is unreasonable

1. Insanity, when properly
with regard to the use of the street

made out is full and complete de-
as a highway. Corry v. Cincinnati.

fense to all criminal charges. Shar-
601
key v. State.

боу)
3. A contract for personal

2. The burden of establishing
service is not enforcable by injunc-
tion, if it and the proposed breach

insanity of the accused affirmatively
are doubtful. Bryar v. Chyne. 599

to the satisfaction of the jury, rests
with defendant.

Ib.
4. A judgment of a justice of

3. Where the defense is in-
this state, the record of which shows
service of summo is

sanity, it is not sufficient if it shows
on defendan.

merely, that such a state of mind was
will not be enjoined on the ground
that there was no service, there be-

possible; nor merely that it was prob-
able.

Ib.
ing no ..aud on part of plaintiff.
Dixon », Varnish Co.

4. The proof must be such as

481
5. A court of equity will pro-

to overrule the legal presumption of
tect the inventor of a secret process

sanity, and satisfy the jury that the
accused was not sane.

Ib.
against its disclosure or unauthor-

5. It is sufficient if the jury is
ized use by any, person obtaining
knowledge of it in confidence.

reasonably satisfied by the weight of
Foundry Co. v. Dodds.

preponderance of testimony that the

154
6. The inventor may sell the

accused was insane at the time of the
secret to another, and thereby vest

commission of the act.

Ib.

6. The cocaine habit, produc-
in his assignee as full right to pro-
tection from disclosure or

ing hallucinations, which do not ap-
use by

pear to be of a kind which influ-
persons acquiring knowledge of it in

enced the disposition of property,
confidence, as he himself would have.

may yet involve a

degree of un-
Ib.

soundness of mind and impairment
7. The process must be shown

of general faculties as to be fatal to
to be a secret to entitle the com-
plainant to protection.

testamentary capacity. Underhill In
Ib.

re.
8. On preliminary hearing, if

487
there is any probability that the

INSURANCE, FIRE-
complainant's case
may be main-

1. Where a lessor procures
tained, the injunction must be con- insurance on his building and lessee
tinued until final decree.

Ib. procures insurance on his own fix-

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