EMINENT DOMAIN-Continued. only entitled to two peremptory challenges.
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.
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 385 a taking of private Ib. property. That the statute of limita- tions does not 18. If it does, compensation commence to run against such action until the second must be first made, and the abutting verdict. owner cannot be obliged to suffer the loss of his property and to rely upon an action at law for the recovery of damages.
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
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.
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-
gestae, is not competent evidence for the accused. State v. Grays on.
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
Executors and Administrators--Gambling.
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
+ 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.
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.
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-Incline Plane Railway.
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.
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.
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-
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.
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,
Injunction-Insurance, Fire.
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
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.
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.
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-
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