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DOWER-Continued.

Dower-Eminent Domain.

gage in which the husband and wife
joined, resort should first be had to the
amount of the homestead where the
wife, claiming dower, joined in the
mortgage simply as surety.
Ib.
Computation of dower, based on en-
tire proceeds of sale of consort's lands.
Hickey v. Conine.
369
Wife furnishing money to pay off
husband's mortgage cannot be subro-
gated therefor out of proceeds of sale
by administrator without proof that
it was loaned with such understanding.
DRAFT-

Ib.

A draft upon a bank, payable on de-
mand, is indistinguishable from a check,
and either, considered alone, imports a
representation that the drawer has
funds to meet it. Semler v. State. 581

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The original defendant in an action
may prosecute error to protect the of-
ficers of the county, who, although not
parties to the action, will be affected
by an order taxing costs under R. S.
5182 (L. 8698).
Ib.

The provision of R. S. 6438 (L.
10015), relating to error proceedings
in appropriation proceedings, that the
common pleas court does not authorize
a judgment for costs other or different
from that prescribed by R. S. 6414 to
6453 (L. 9990 to 10030). Hence, the
fees of jurors, in appropriation pro-
ceedings, should be taxed as part of the
costs under R. S. 6414 (L. 9990) et
seq. and not under R. S. 5182 (L.
8698).

Ib.

An order of the trial court made
upon a summary application after judg
ment, directing that the jury fees in an
appropriation proceeding be paid as
provided by R. S. 5182 (L. 8698), is a
final order within the meaning of R. S.
6707 (L. 10297).
Ib.

Where the corporation plaintiff in
appropriation proceedings settles with
part of the property owners pending
error proceedings, and without a judg-
ment being entered, it cannot thereby
avoid the payment of costs after receiv-
ing the benefits of the trial.
Ib.

The fact that the time limit within
which an electric railway company,
under its franchise from the county
commissioners, was to have its line
completed and in operation, will not
prevent the company from thereafter
extending its road to new property un-
der condemnation proceedings or other

Eminent Domain-Error.

rights lawfully acquired. Chambers v.
Traction Co.
193
Where a corporation has abandoned
condemnation proceedings to apropri-
ate private property, the probate court
is authorized to include in defendant's
expenses his reasonable attorney fees,
and the power to fix this amount at
what is just and reasonable is with the
probate court, and its judgment in
that behalf will not be disturbed unless
it appears to be an abuse of discre-
tion or manifestly against the weight
of the evidence. Wiler v. Gas & Fuel
Co.
257

Evidence as a nature of services, etc.,
admissible, to guide the probate court
in fixing reasonable attorney fees as
costs of defendant in a condemnation
proceeding, abandoned by the plaintiff.

Ib.

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where it finds them. Heintz v. Saw-
yer.

10

Equity will not let a trust fail for
want of technical words in its creation
or for want of a trustee. Robbins v.
Smith.
91

The principle that where one of two
innocent persons must suffer from the
wrongful act of a third person, etc.,
cannot be invoked to the prejudice of
guardianship wards, in a matter in
which their guardian was acting with-
out warrant or authority of law. Mer-
chants' & Clerks' Sav. Bank Co. v.
Schirk.
125

A court of equity has power to cor-
rect mistakes in the estimates of a
civil engineer, notwithstanding the con-
tract under which the work was being
done provided that the estimates should
be final and conclusive. But as a gen-
eral rule, in the absence of an intention
to defraud, or bad faith on the part
of the engineer, his estimates under
such a contract are final. Cleveland
v. Griffen.
167

Harsh and unconscionable contract
between employer and employe not en-
forced by court of equity, etc. Jen-
nings v. Bettiel.
239

Note may be reformed when mistake
clearly appears from inspection with-
out further evidence, etc. Reep v. Ly-
293

man.

ERROR-

Facts in homicide trial not consti-
tuting ground for reversal for miscon-
duct of counsel. Wray v. State. 1

Where the answer alleges that plain-
tiff is indebted to defendant for certain
rent, which allegation is not contro-
verted by reply or otherwise, an in-
struction to the jury that the burden
of the proof is upon defendant to prove
the allegation is erroneous. Honne-
meyer v. Fischer.
8

Reviewing court confined to the
record in determining whether facts
show contempt of court. Hunt v. State.

16

The original defendant in an action
may prosecute error to protect the of-
ficers of the county, who, although not
parties to the action will be affected by
an order taxing costs under R. S. 5182
(L. 8698). Hosbrook v. Traction Co.

42

An order of the trial court made upon
a summary application after judgment,
directing that the jury fees in an appro-
priation proceeding be paid as provided
by R. S. 5182 (L. 8698), is a final or
der within the meaning of R. S. 6707
(L. 10297).
Ib.

Asking jury in felony case what pros-
pect was of an agreement in defendant's

ERROR-Continued.

Error.

absence held not an irregularity. Staub
v. State.

50
Under R. S. 6610 (L. 10192), a re-
viewing court is not authorized to re-
verse the judgment of a justice of the
peace in forcible entry and detainer,
upon the ground that it is not sustained
by sufficient evidence. Mack v. Eck-
erlin.
133

Where the evidence in a will contest
conclusively shows that the alleged will
is a forgery, a verdict and judgment to
that effect will not be set aside by a re-
viewing court for errors committed on
the trial by the trial judge, or in charg-
ing the jury. Gurley v. Armentraut.

199

A charge to the jury will be applied
by a reviewing court to the state of
facts which was shown to exist. La-
lond v. Toledo.
220

Where the court after commenting
on a charge which he refused to give
instructs the jury to disregard his com-
ment, the error is cured. Columbus Ry.
v. Connor.
229

An instruction warning the jury that
its special findings of fact must be con-
sistent with the general verdict, or the
latter would be set aside, is improper.
Clev. C. C. & St. L. Ry. v. Sivey. 248

Where the method is provided by
which error shall be prosecuted to the
judgment or finding of a court in a
special statutory proceeding, such meth-
od will be exclusive; hence, error pro-
ceedings brought in the common pleas
court in a condemnation proceeding un-
der the general statutory provisions, are
improper, and a reviewing court ac-
quires no jurisdiction thereby. Wiler
v. Gas & Fuel Co.
257

Exclusion of evidence tending to
show immaterial fact held not preju-
dicial. Independent Coal Co. v. Bank.
297

The trial court having determined
that a malt liquor is intoxicating, the
judgment of the court will not be re-
versed unless such judgment is mani-
festly against the weight of the evi-
dence, and in the case of a malt liquor
known as swankey it does not so mani-
festly appear, but on the contrary it
clearly appears, in this case, that such
malt liquor is an intoxicating liquor,
under the statute. Dominick v. State.

305
Misconduct of counsel prejudicial to
own client not reversible error in favor
of adverse party. American Contract-
ing Co. v. Sammon.
337
Comment on smallness of defendant's
capital stock not prejudicial error,
when.
Ib.

Evidence must be prejudicial to com-
plaining party to constitute reversible

error.

Ib.
Inaccurate statement by the court of
certain testimony is reversible error.
Wuest v. Railway.
3065

Circuit court has no jurisdiction to
review order of common pleas removing
or refusing to remove guardian. North
v. Smith.
367

was

A reviewing court will presume that
the mayor did not err in finding that
the council has passed a penal ordi-
nance, when it appears that it
within its power to pass an ordinance
making certain acts, which are set
forth in the affidavit under which the
defendant was arrested and tried before
the mayor, a penal offense. Esch v.
Elyria.
446

A bill of exceptions shows on its
face that it does not contain all of
the evidence, thereby precluding a re-
viewing court considering the weight
of the evidence in the lower court con-
sisted of illustrations or demonstrations
by models of machinery, and there is
nothing in the bill to show where the
witnesses and counsel stood with refer-
ence to the models, what they pointed
out, and where they placed their hands
except by such words as "here," "there."
"like that," and the word "indicating"
in parenthesis inserted by the stenogra-
pher. Diamond Rubber Co. v. Mc
Clurg.

493
The refusal of the trial court to give
certain requested instructions to the
jury, but which were not, however,
deemed of essence by the party making
the request, not seriously pressed to the
attention of the court, cannot be urged
in a reviewing_court. Newport & C.
Bridge Co. v. Jutte.
541

A duty devolves upon counsel for
both parties to endeavor to preserve
the trial court from error.
Ib.

A statement in the record, “And
thereupon before argument the counsel
upon both sides requested special
charges to be given to the jury, as
follows," does not affirmatively show
a request that the charges referred to
be given before argument.
Ib.

Court failing to charge on a point
on which counsel did not ask a charge is
not error. Baum v. State.

699

In a criminal case for assault with
intent to kill, where the defendant put
in evidence of his previous good char-
acter, it is not error for the court to
say to the jury, that, "the weight to
be given to the good character of the
defendant for peace and quiet must be
such that the jury, under all circum-
stances, think it should receive."

Ib.

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Transcript attached to plea in bar
not part of bill of exceptions, when.
Whitman v. State.
735

There is no presumption that cer-
tified transcripts from the docket of
a justice of the peace, attached as ex-
hibits to a plea in bar were offered in
evidence in the trial court, where they
are not referred to, or made a part of
the record.
Ib.
Judgment in issue, presented by plea
in bar reviewed under R. S. 6565 (L.
10147).
Ib.
An assignment in error that the trial
court erred in overruling motion to take
the case from the jury and dismiss the
action, will not be reviewed on error
when the defendants, thereafter, elected
to proceed with their testimony. Doren
v. Fleming.

ESCAPE-

737

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An immediate vested interest in real
estate, with the possession only delayed
until a future time, is given by a will
which devises the property to the dev-
isees named, although the possession
and control thereof is given in trust to
the executor for a term of years, but
during which time, however, the dev-
isees are to have and enjoy all the
benefits that could arise out of the be-
quest while the control is in the trus-
tee. Swerer v. Wesleyan University.
144

A grant of "all the right, title, and in-
terest" of the grantor in and to cer-
tain real estate, without granting the
land itself, conveys only such interest
as the grantor has at the time of the

conveyance. Fountain Square Theatre
Co. v. Pendery.

ESTOPPEL-

285

An estoppel arising against an abut-
ting property owner to object to the
existence of the main track of an elec-
tric railway company, cannot be ex-
tended so as to prevent her from ob-
jecting against the subsequent laying
and maintenance of a switch, in the
absence of other facts and circum-
stances which operate as an estoppel
with respect to such switch. Cham-
bers v. Traction Co.
193

Taxpayer estopped from questioning
action of council, when. Emmert v.
Elyria.
353

Failure to comply with R. S. 3798
(L. 6124) no defense against creditors.
Dickason v. Bank.
357
Nonexistence of corporate capacity of
savings bank no defense against credi-
tors, etc.
Ib.

The mere fact that an abutting prop-
erty owner petitioned for a sewer im-
provement, and stood by without objec
tion or protest and saw it built, does
not estop him from thereafter contest-
ing the validity of the assessment
against his property to pay the costs
thereof, on the ground that his property
is not specially benefited thereby. Hil-
debrand v. Toledo.
427

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EVIDENCE-

Evidence.

State not required in homicide trial
to prove beyond reasonable doubt that
either of two shots charged in indict-
ment produced death. Wray v. State.
1

Where the answer alleges that plain-
tiff is indebted to defendant for certain
rent, which allegation is not contro-
verted by reply or otherwise, an in-
struction to the jury that the burden
of the proof is upon defendant to prove
the allegation is erroneous. Honne-
meyer v. Fischer.
8

Contempt proceedings are quasi
criminal-presumption of innocence in
favor of accused. Hunt v. State.

16

Testimony of witness that her father
had "sexual intercourse" with her is not
a mere conclusion. Straub v. State.
50

Jury may convict upon uncorrobo-
rated testimony of accomplice. Ib.

Proof of rape under R. S. 6816 (L.
10414) held no bar to conviction for in-
cest under R. S. 7019 (L. 10731). Ib.

Where a person signs a consent to
construction of street railway as agent
for another, no presumption in favor
of the agency arises from the rule that
council is presumed to have acted with
sufficient consents before it, such agency
must be proved as in other cases.
v. Railway.

Day
60

Auditor's deed to purchaser at delin-
quent tax sale is not prima facie evi-
dence of valid title. Wolcott v. Hol-
land.

71

Verbal statements held competent to
explain ambiguity of written contract
as to representations not embodied in
it. Highland Buggy Co. v. Parker. 115

No legal presumption exists that in-
fant is incapable of being charged with
contributory negligence; it is a question
for the jury. Cincinnati Trac. Co. v.
Blackson.
191
Presumption that testator destroyed
will when same cannot be found after
death, etc. Gurley v. Armentraut. 199
Testator's declaration of intention
when controlling issue is forgery, etc.
Ib.

Alleged will held competent evidence
when controlling issue is forgery. Ib.
On the trial of an issue in a will
contest as to whether or not the will in
dispute is a forgery, other forged wills
and papers are competent evidence to
show the evil purpose of the guilty
parties.
Ib.
Competency of testimony of experts
as to the speed with which different
cars, differently constructed, may be
run safely. Columbus Ry. v. Connor.

229

Evidence that other street cars were
better equipped held incompetent. Ib.
Reasonableness of rule requiring pro-
duction, of original receipt is for jury.
Adams Express Co. v. Gordon. 243

Intervening objects breaking sound,
etc., are proper subjects of inquiry in
determining whether traveler was negli-
gent in approaching crossing, etc. Clev.
C. C. & St. L. Ry. v. Sivey.
248

· Evidence as a nature of services, etc.,
admissible, to guide the probate court
in fixing reasonable attorney fees as
costs of defendant in a condemnation
proceeding, abandoned by the plaintiff.
Wiler v. Gas & Fuel Co.
257

Corporation bringing condemnation
proceedings held estopped to set up un-
constitutionality of part of act. Ib.

The fact that the payee of a note to
the maker in the presence and hearing
of the cashier of the plaintiff bank, that
he, payee, was going to sue on the note,
and that the cashier made no objection
and made no claim that the bank was
the owner of the note, is no evidence
that the bank was not the real owner
of the note. Independent Coal Co. v.
Bank.
297

What not sufficient admission of
fraud and collusion. Scofield v. Oil Co.
318

Testimony as to fair price of certain
work admissible to rebut testimony as
to market price. Schmidt v. Turner.
327

The burden of proof as to the fraudu-
lent nature of a conveyance rests upon
those seeking to have it set aside, and
any doubt as to the bona fide char-
acter of the transaction must be re-
solved in favor of the defendants. Ger-
man Nat. Bank v. Young.
333

Admissibility of evidence when in-
solvency of corporation not judicially
determined. Dickason v. Bank. 357

Mayor takes judicial notice of ordi-
nances-rule with respect to courts of
record. Esch v. Elyria.
446

A reviewing court will presume that
the mayor did not err in finding that the
council had passed a penal ordinance,
when it appears that it was within its
power to pass an ordinance making
certain acts, which are set forth in the
affidavit under which the defendant was
arrested and tried before the mayor,
a penal offense.
Ib.

Declarations of one of several bene-
ficiaries under a will as to testator's un-
soundness of mind, etc., are not bind-
ing on the other beneficiaries, and are
inadmissible against them in a will
contest. Moore v. Caldwell.

449

Where a witness is called by defend-
ant in a will contest to give his opinion
in chief as to the mental capacity of

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