resolution and give notice as required
by Lan. R. L. (R. S. 2235); but
the probate court has no jurisdiction
to determine whether or not such reso-
lution was passed, and the notice given;
the only remedy of the owners is an
action to restrain municipality from
proceeding to assess compensation and
from taking possession of the property.
Erie Ry. v. Youngstown.
679
Discretionary power is conferred
upon mayor's courts to decline to have
a criminal case tried by a jury and to
hold the accused to answer to a higher
court. Hillier v. State.
777

Full and complete jurisdiction is
conferred upon mayors to proceed to
trial in a misdemeanor prosecution
without the intervention of a jury
when it is waived, or to proceed to
trial with a jury when it is not waived.

Ib.

The right of trial by jury is waived
by entering a plea of guilty in a
criminal prosecution before a mayor
having complete jurisdiction.
Ib.
COVENANTS-

Condition subsequent and covenants
in a deed regarding the location of a
railroad station, distinguished. Mon-
nett v. Railway.
469

Right created by condition subse-
quent not affected by contract to sell.
Conveyance only affects covenants.
Ib.
CRIMINAL LAW-

Section 6529 Rev. Stat. relating
to change of venue not applicable to
mayor's court. Kappes v. State. 111
Circuit court cannot reverse judg-
ment discharging accused in criminal
case. State v. Hance.
273

President of council as acting mayor
of village cannot try misdemeanor

case.

Ib.

an excessive sentence, the case will be
remanded for proper sentence only.
Ib.

Names of buyers not material in af-
fidavit charging keeping place for sale
of liquors in violation of Beal law.
Ib.

Charge excluding defendant from re-
ducing grade of crime from murder
to manslaughter is error. Munday v.
State.
712

There is no conclusive presumption
that one intended to kill, because he
purposely struck a blow causing death.
Ib.

In homicide trial, proof that de-
fendant purposely inflicted the wound
which caused the death will not justify
conviction of murder in second degree.
There must be an intent to kill. Ib.

Conduct and responses of accused
charged with crime admissible against
him. - v. State.
723

Evidence of accused's excessive use
of absinthe and morphine not "newly
discovered evidence" in conviction for
robbery.
Ib.

In the trial of a criminal case,
jurymen need not be sworn upon their
voir dire until challenged for cause.
Young v. State.

747

Forty-eight hours consideration of
criminal case by jury not duress, nor
exercise upon streets in sheriff's cus-
tody, irregularity.
Ib.

In an embezzlement case, the pros-
ecuting attorney having furnished the
accused, at his request, a bill of partic-
ulars of the several transactions which
the state proposes to prove maintain
its case, the evidence should be re-
stricted to such transactions.
Ib.

Election cannot be required where
several acts of embezzlement are not
complete until refusal to account. Ib.
Evidence should be limited to time
statute, under which indictment found,
is in force.
Ib.

A plea of guilty has all the force
and effect of a verdict by the jury;
and when such plea is entered in a
misdemeanor prosecution before a
mayor, such court has complete juris-
diction to proceed to judgment and
sentence without a waiver in writ-
ing, signed by the accused, waiving
a jury. Hillier v. State.
777

CUSTOM-

Guaranty of agent of produce com-
mission firm, soliciting consignment of
peaches on strictly commission basis,
that peaches would net a certain price,
in absence of proof of such custom
in the business, held, not in scope of

Municipal corporations not liable for
damage by surface water from street,
when property naturally is situated
lower than street nor when the result
of change of grade. Sharp v. Cin-
cinnati.
59
Title of railroad right of way not
needed as such, is extinguished in
street extension. When such street use
interferes with railroad franchise the
remedy is one for damages. Clev. C.
C. & St. L. Ry. v. Railway.
180

Cause of action for damages stated
in pleadings. Northwestern Nat. L.
Ins. Co. v. Hare.
197

Pennsylvania statute will be enforced
in Ohio for negligently causing death
of citizen of that state. Schell v. Iron
Sheet & Tube Co.
209
Deposited security by street railway
secure municipal franchise to be
liquidated damages and not penalty.
Hattersly v. Waterville.

to

226

Danger from fire to buildings, etc.,
on remainder is a proper element in de-
termining damages for railroad appro-
priation. Hayes v. Railway & T. Co.
395

Physician's bill paid by defendant is
not an element of damages in action
for personal injuries. Minor plaintiff
cannot recover for mother's services
as nurse, unless manumitted. Not en-
titled to recover for wages when not
emancipated. Bowe v. Bowe. 409

A verdict for $5,000 for the loss of
an eye, in favor of a young mechanic,
which injury will bar him from, or
handicap him in such occupation and
which may also cause a total loss of
sight, is not excessive. Clev. C. C. &
St. L. Ry. v. Tehan.

457

A steam railroad which occupies its
private right of way is not liable for
damages naturally resulting to adjoin-
ing improved property from the noises,
smoke, cinders and jarring arising from
operation of its trains. Such damages

are damnum absque injuria. Cin. C.
Belt Ry. v. Burski.

486

A contract by a prospective em-
ploye with a railway company, waiv-
ing damages for personal injuries, is
not within the inhibition of Sec. 3365-20
Rev Stat., if the injury occurred be-
fore the execution of the contract; the
right of damages which cannot be re-
leased is one thereafter arising. Bow-
ers v. Railway.
518

County commissioners are liable in
an official capacity for injury caused
by defective bridge. Rahe v. Cuya-
hoga Co. (Comrs.).

DEBTOR AND CREDITOR—

489

Creditor must have administrator
appointed within reasonable time to
save clai from bar of statute of limi-
tations. Hoiles v. Riddle.
263

Life tenant is trustee, not debtor of
remainder-man. Moore v. Idlor. 502

DECREES-

Copy of deed should be attached to
petition as exhibit, when. Turner
v. De Witt.
77

Conveyance for burial purposes not
creating condition precedent, vesting
fee simple in trustees. Church v. Gam-
ble.
295

Right created by condition subse-
quent not affected by contract to sell.
Conveyance only affects covenants.
Monnett v. Railway.
469

Equity will cancel and reform re-
lease of conditions in deed obtained
by fraud. Monnett v. Railway. 469

Conditions subsequent and covenants
in a deed regarding the location of a
railroad station, distinguished. Ib.

As the penalty for breach of a con-
dition is forfeiture of the estate, equity
will not enforce it, but will sometimes
relieve against.

Ib.

Where by deed an estate in fee
simple is granted, the same cannot be
reduced to a life estate by another in-
strument executed concurrently with
such deed, purporting to reserve a
fee to the grantor in the deed or to
convey a fee to another to vest upon the
death of the grantor in the deed, un-
less such other instrument shall con-
tain appropriate operative words of
conveyance of such remainder or rever-
sion. Lee v. Scott.

799

A relict of a deceased husband or
wife acquiring an estate from a former
deceased husband or wife does not
take it impressed with a trust, but
with an absolute right to dispose of
and change the character of the prop-
erty thus acquired so as to prevent the
operation of Sec. 4162 Rev. Stat. upon
it. Money received from oil during
lifetime of decedent not controlled by
Sec. 4162 Rev. Stat. Section 4162
Rev. Stat. should not be construed upon
equitable principles. Digby v. Digby.
417

Insurance policies which are the
property of decedent form part of the
estate, whether named in testator's will
or not. Plaut v. Insurance Co. 499
Whether the inheritance tax law
(97 O. L. 398) applies to the undis-
tributed estate of a person who died
testate prior to its enactment, depends
upon when said estate vested under
Hostetter
the provision of the will.
v. State.

702

out qualifications, or with prejudice.
Akron (City) v. Railway.

525

Refusal of parties to amend petition
warrants a dismissal under Secs.
5313 and 5314 Rev. Stat. Egan v.
Railway.
616

DIVORCE AND ALIMONY-

Where a court orders a divorce pe-
tition dismissed and says nothing as
to defendant's cross petition, and makes
no order or entry continuing the case,
the case is ended and a subsequent
motion by cross petitioner, for tempo-
rary alimony, will be denied. Nau-
man v. Nauman.
37

A decree of divorce becomes opera-
tive between the parties at its rendi-
tion although such decree is simply
noted upon the appearance docket
and no entry thereof made upon the
journal.
Ib.

Divorce cases from peculiar class.
governed by special principles. Solo-
mon v. Solomon.
307
Decree obtained by fraud cannot be
opened after term, under Sec. 5355
Rev. Stat.

DRAINS AND DITCHES-

Ib.

EJECTMENT-Continued.

ELECTION OF WIDOW-

Election of widow to take under will
of husband does not waive right to fee
in her undivided interest in land. Ows-
ley v. Price.
260

Widow electing to take under will is
not required to exhaust her separate
property before subjecting corpus of
life estate to her support under provi-
sion of will authorizing same. Moore
v. Idlor.
502

A deputy clerk of the probate court
has no authority to receive the elec-
tion of a widow to take under the
will of her deceased husband; and
when such election is made before a
deputy clerk the same will be can-
celled and vacated upon a suit in equity
for that purpose. Mellinger v. Mel-
linger.

ELECTIONS-

683

tent where defendant offers evidence
that insulator used was proper and
safe.
Ib.

Where insufficient insulation of elec-
tric wires at a particular point, which
was the scene of an accident, is the
negligence complained of, it is preju-
dicial error to permit a witness for
plaintiff to testify that, owing to de-
fective insulation elsewhere, electricity
escaped from the wires of defendant
company at another point along the line
and at a time other than that of the
accident.
Ib.

It is the duty of an electric street
railway to keep its wires out of the
way of persons using the streets, so
that they will not, by coming in con-
tact with such wires, be injured, and
the fact that it has not done so raises
a presumption of negligence against it.
The burden of proving that there was
no negligence in such case, is on the
company. Degree of care required.
Light & P. Co. v. Bell,
691

A street railway company which is
operating with a single trolley system,
under a franchise granted by the mu-
nicipality, is only liable for damages
resulting from its actual negligence
in the use of such system. Dayton v.
City Ry.
736

The fact that other electric rail-
ways operated by the same system
are partly responsible for injury re-
sulting to the city's water pipes from
electrolysis, constitutes no defense to
the company against whom the action
is brought.
Ib.

Where there is a sharp conflict
among expert witnesses as to whether
or not the present system under which
an electric street railway is operating
is a proper system, a case is not pre-
sented which will authorize a court of
equity to compel a change to another
system.

ELECTRIC RAILWAYS-

See STREET RAILWAYS.
EMBEZZLEMENT-

Ib.

Evidence should be limited to time
statute, under which indictment found.
is in force. Young v. State. 747

Election cannot be required where
several acts of embezzlement are not
complete until refusal to account. Ib.

In an embezzlement case, the prose-
cuting attorney having furnished the
accused at his request a bill of par-
ticulars of the several transactions
which the state proposes to prove
maintain its case, the evidence should
be restricted to such transactions. Ib.

Railroad property may be appropri-
ated by another company.

Ib.

Judgment in appropriation proceed-
ings under Sec. 6414 Rev. Stat. to
appropriate right of way over steam
railroad by interurban railway is res
judicata of private rights each over
crossing.
Ib.

Answer filed by steam railroad in
appropriation proceedings commenced
against it in probate court under Sec.
6414 Rev. Stat. pleading pendency of
action under Sec. 3333-1 should be
stricken from files.
Ib.

No appeal lies under Secs. 3333-1 or
5226 Rev. Stat. from order dismissing
application under former action. Ib.

Compensation for interference with
railroad use of right of way is pre-
sumed to have been made in street
extension appropriation proceedings.
Clev. C. C. & St. L. Ry. v. Railway.

180

Railroad right of way, not needed
for proper exercise of its franchise, is
subject to right of eminent domain.
Ib.
Municipality may extend a street
across railroad tracks, provided such
use does not defeat original use. Ib.
Danger from fire to buildings, etc.,
situate on the remaining portion of a
tract of land appropriated by a rail-
road company is a proper element of
damages. Rule as to existing and
future crops. Hayes v. Railway. &
T. Co.
395

As Sec. 3237 Rev. Stat. does not
require the townships through which
a proposed road is to pass to be named;
the fact that they are named is mere
surplusage and imposes no limitations.
The counties, only, are required to be
named.
Ib.

In a proceeding by a council to
appropriate for the extension of a
street, it is necessary to pass the pre-
liminary resolution and give notice
as required by Lan. R. L. (R. S.
2235); but the probate court has no
jurisdiction to determine whether or
not such resolution was passed, and
the notice given; the only remedy of
the owners is an action to restrain
municipality from proceeding to as-
sess compensation and from taking
possession of the property. Erie Ry.
v. Youngstown.

679

EQUITY-

Equity may require performance of
franchise conditions by mandatory in-
junction or specific performance al-
though injunction cannot be used to
work forfeiture or ouster of franchise.
Milford (Vil.) v. Traction Co. 271
Specific performance will be de-
creed notwithstanding necessity of con-
Ib.
tinuing supervision, when.

Equity will cancel and reform re-
covery of money, is entitled to a jury;
and the fact that there are incidental
equitable questions does not affect the
right. Heintz v. Anthony.

380

Equity may award damages in lieu
of specific performance. Measure of
damages is actual loss. Cin. So. Ry.
v. Hooker.
392

Equity will cancel and reform re-
lease of conditions in deed obtained
by fraud. Monnett v. Railway. 469
Equity never enforces but sometimes
relieves against forfeitures.

Ib.

Equity will quiet title by plaintiff
in possession because on account of
this possession he cannot proceed at
law against an adverse claimant. Ib.

Equity will not assume the determi-
nation of questions of title until legal
remedies have been exhausted. Equity
will entertain legal actions to avoid
multiplicity of suits. Tudor Boiler
Mfg. Co. v. Greenwald Co.

556

A deputy clerk of the probate court
has no authority to receive the elec-
tion of a widow to take under the will
of her deceased husband; and when
such election is made before a deputy
clerk the same will be cancelled and
vacated upon a suit in equity for that
purpose. Mellinger v. Mellinger. 683
ERROR-

It is improper for counsel to as-
sume in examination of witnesses that
an alleged malicious prosecution has
finally terminated in favor of plain-
tiff, where there is no evidence of-
fered tending to show that fact. Lie-
blang v. Railway.
30

Judgment of court upon requests
for verdict not set aside unless clearly
against weight of evidence. Gilligan
v. Royal Arcanum.
42

Amendment of bill of exceptions in
reviewing court by attaching insuffi-
ciently identified exhibits in evidence
in trial court is improper. Evidence
dehors the record is inadmissible to
identify such exhibits. Contractors &
B. Sup. Co. v. Cement Co.
49

Where a record does not contain
all the evidence a reviewing cour
must presume every finding of fact
necessary to support the verdict and
judgment, and where a portion of the