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-
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
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).
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
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.
where it finds them. Heintz v. Saw- yer.
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
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.
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.
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
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.
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
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
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.
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."
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.
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.
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
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.
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.
Auditor's deed to purchaser at delin- quent tax sale is not prima facie evi- dence of valid title. Wolcott v. Hol- land.
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.
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.
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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