ERROR-Continued.

Error.

charge is omitted, affirmative errors
only will be considered. Sharp v.
Cincinnati.
59

Only such original papers as are
part of the record in the court below
can be filed with a petition in error
under authority of Sec. 6716 Rev.
Stat. Strauck v. Stoneware Co. 73
Question raised by motion to strike
bill of exceptions from files of cir-
cuit court is whether bill is part of
record of court below.
Ib.

The circuit court has jurisdiction
only to review, vacate or modify a
judgment of the common pleas court
for errors appearing upon the record,
under Sec. 6709 Rev. Stat. Ib.

Amendment, 96 O. L. 17, dispens-
ing with necessity of entry upon court
journal, and providing that signature
by trial judge, shall be sufficient evi-
dence of settling and allowance, etc.,
does not dispense with order to make
bill of exceptions part of record.

Ib.

On error to justice of the peace to
discharge an attachment common pleas
is not authorized by Sec. 6733 Rev.
Stat. to discharge same. Foote v.
Commercial Co.
378

Reviewing court will consider plead-
ings as presenting certain issue not-
withstanding failure of averment.
Schnitzer v. Cole.
387

Judgment debtor may take full stat-
utory time to file petition in error in
circuit court. State v. Chambers. 404

To charge in an action for per-
sonal injuries that a physician's bill
paid by defendant, is an element of
damages; or that an unemancipated
infant may recover for lost wages.
Bowe v. Bowe.

409

The failure to plead a material fact
is cured when the answer puts the
omitted fact directly in issue; and

when it appears that substancial jus-
tice has been done, the error in the
trial court in overruling a demurrer to
the petition will be disregarded by a
reviewing court under Sec. 5115 Rev.
Stat. Clev. C. C. & St. L. Ry. v.
Tehan.
437

Record need not show amended peti-
tion where the bill of exceptions sets
out all the evidence and proceedings.
and evidence and proceedings sustain
the verdict.
Ib.

In such case the amendment wil
be implied on error.
ib.

But where the verdict is not thus
sustained the record must show amend-
ment.
Ib.

A verdict and judgment for dan-
ages upon a cause of action not made
an issue by pleading, and which is
supported by evidence which is in-
cidental only to the cause of action
pleaded, will be reversed. Cincinnati
Connect. Belt Ry. v. Buski. 486

The reversal and modification of a
judgment by a reviewing court is only
warranted when based upon the state
of the pleadings, a finding of facts
by the trial court, or upon facts
brought before the court by a bill of
exceptions. Akron v. Railway. 525

The rule that a reviewing court
may, on reversal and under proper
conditions, render such judgment as
the trial court should have rendered.
has no application where the record
only shows that the case was heard,
argued by counsel, and a judgment
to dismiss without prejudice rendered.

Ib.

Where the judgment of a lower
court in a criminal prosecution is
reversed on error because of the im-
position of an excessive sentence, the
case will be remanded for proper sen-
tence only. Dalrymple v. State. 562

The question whether or not the
finding of the trial court that an ac
tion was commenced by plaintiff's at-
torney of record without authority.
was sustained by the evidence, will
not be considered in the absence of a
bill of exceptions setting forth the
evidence. Capaul v. Railway. 578

Order dismissing action without
prejudice for failure to amend review-
able on error. Egan v. Railwg v.
616

Variance between pleadings and
proof must be material and prejudicial
to disturb verdict and judgment. To-
ledo Ry. & Light Co. v. Ketrow. 641

Where the court withdraws the evi-
dence from the jury and dismisses the
petition of plaintiff for the reason
that there is no evidence to support

the claim of plaintiff and upon the
same day a motion for a new trial is
made which is overruled at a subse-
quent term of the court, a petition
in error which is filed more than four
months from the rendition of the
judgment dismissing the petition of
plaintiff but within four months from
the overruling of the motion for a
new trial is too late and the proceed-
ing in error should be dismissed. Mc-
Callen v. Railway.
710

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

Evidence of accused's excessive use
of absinthe and morphine not "newly
discovered evidence" in conviction for
robbery.
v. State.
723
Fourty-eight hours consideration of
criminal case by jury not duress, nor
exercise upon streets in sheriff's cus-
tody, irregularity. Young v. State.
747
ESTATES-

Judgment in action to recover real
estate upon forfeiture of leasehold and
mesne profits cannot be pleaded in
bar to action for rent accrued prior
to forfeiture. Linke v. Walcutt. 10

Constitutional limitations as to
street assessments may be waived.
Abutters signing petition for street
improvement "irrespective of the mem-
ber
* * signing this petition"
are estopped to deny that assessments
exceed benefits. Thornton v. Cincin-
nati.
33

Heirs sui juris, voluntarily agreeing
to sale of mortgaged premises and
after payment of mortgage indebted-
ness to deliver balance of proceeds
to administrator are estopped from
denying sale or right of widow to
dower and homestead in such balance.
Bretz v. Moore.

66

of remainder-man. Moore v. Idlor.
502

Where by deed an estate in fee
simple is granted, the same cannot
be reduced to a life estate by an-
other instrument executed concur-
rently 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, unless such other instru-
ment shall contain appropriate oper-
ative words of conveyance of such
remainder or reversion. Lee v. Scott.
799

Owner of tract acquiescing in an
irregular apportionment of an assess-
ment estopped from objecting. Bloch
v. Godfrey.
781

When the present capacity of an
oil well was only fifty-three barrels a
day, which fact was known to vendor
but unknown to vendee, and the for-
mer in response to an inquiry from
the latter as to its present capacity.
replied, "I had run two one-hundred
barrel tanks a day," which was the
capacity of the property several
week previous, and vendee believed
from vendor's conduct and words that
he was stating the present capacity
of the property, and acted upon it
to his prejudice, the vendor's reply
and conduct, in such case, is tanta-
mount to a fraud upon vendee which
will entitle him to relief; and vendor
will be estopped from resorting to the
literal meaning of his words to es-
cape liability to the vendee. Jones v.
Draper.
785

EVICTION—

See EJECTMENT.
EVIDENCE-

Evidence as to special benefits from
screet improvement is admissible in
suit to enjoin collection of assess-
ments therefor. Benham v. Cincin-
nati.
17

Finding of benefits by assessing
board held prima facie correct. Ib.
Parol evidence is inadmissible to es-
tablish parol modification of written
contract, when. Toledo Paper Box
Co. v. Paper Co.
27

Favorable termination of criminal
proceeding as by acquittal, dismissal
or discharge must be pleaded in peti-
tion in malicious prosecution, and es-
tablished by evidence. Lieblang v.
Electric Ry.

30

Amendment of bill of exceptions in
reviewing court by attaching insuf-
ficiently identified exhibits in evidence
in trial court is improper, evidence
dehors the record is inadmissible to
identify such exhibits. Supply Co. v.
Cement Co.
49

Evidence of expert as to compara-
tive merits of electric insulators is
competent where defendant offers evi-
dence that insulator used was proper
and safe. North Amherst Home Tel.
Co. v. Jackson.
89

A reviewing court will not deter-
mine whether evidence is competent or
not when no proper means was exer-
Icised at the trial, by motion or other-
wise, to have it taken from the jury.
Ib.
Evidence of changes subsequent co
accident competent, when.
Ib.

It is not hearsay evidence for a wit-
ness to state that he heard of a cer-
tain transaction, when the object of
such question is to refresh the witness'
memory and assist him in fixing the
time of the particular accident which
is the foundation of the action. Ib.
Evidence incompetent to show dan-
gerous condition of electric wires.

Ib.

A person eligible to appointment as
executor may be appointed by proper
order of the probate court entered
upon its journal without the issu-
ance of letters testamentary. Such
letters are merely evidence of appoint-
ment. Tidd v. Bloch.
113

Persons going upon defective side-
walk in daytime must exercise or-
dinary care. Preponderance of evi-
dence is necessary to establish such
fact. Peat v. Norwalk.

161

extension appropriation proceedings.
Clev. C. C. & St. L. Ry. v. Railway.

180

Promissory note in evidence makes
a prima facie case. Bode v. Werner.
206

Court should not direct verdict be-
cause of failure of evidence when
plaintiff has been deprived of necessary
testimony to which he was entitled.
245
Kneipper v. Richards.

Evidence tending to establish terms
of incomplete memorandum agreement
Ib.
is improperly excluded..

Evidence sufficient to sustain at-
tachment. Goodyear T. & R. Co. v.
Rubber Tire Co.

269

Evidence of circumstances influenc-
ing testator, but unknown to him is
321
admissible. Rapp v. Becker.

Where trustee of express trust with
power to sell mortgages instead, evi-
dence that trustee and mortgage acted
in good faith, admissible. Security
Tr. Co. v. Bank.
381

Alleged admission of defendant in-
sufficient to establish right to specific
performance, when. Schnitzer v. Cole.

387

Admission of questions as to exper-
ience necessary to work at an occupa-
tion safely is improper when not di-
rected to the particular act. Imma-
terial questions concerning master's
conduct toward servant is prejudicial
error. Bowe v. Bowe.
409

Proof that an employe is a brake-
man is not sufficient to hold the com-
pany liable for expulsion of a tres-
passer from a freight train while in
motion. Whistler v. Cowan.
511

Oral testimony is competent to show
conditional sale. Richcreek v. O'Don-
nell.
528

Courts do not take judicial notice
of municipal ordinances. Chittenden
v. Columbus.
531

Waiver of conditions in gas and oil
lease providing for monthly rental
upon failure to drill must be shown
by clear and convincing evidence.
Meek v. Cooney.
553

Adverse possession is shown by the
exercise of dominion over a strip of
land over which another claims a road-
way, treating it as an appurtenant to
adjoining property, erecting perman-
ent buildings thereon, enclosing part
of the way with a fence and paying
no respect to its use as a roadway,
for more than twenty-one years. Tu-
dor Boiler Mfg. Co. v. Greenwald Co.
556

In the absence of evidence to the
contrary the presumption is that a

The presumption is that proper peti-
tion was filed for Beal law election
when election was ordered by the coun-
cil.
Ib.

The legal presumption is that elec-
tion officers will adopt the true con-
struction of election laws, and will so
conduct elections as to give every
elector an opportunity to register and
vote. Jeffrey v. State.
591

Rule stated as to burden of proof
in case of contributory negligence.
Evidence as to plaintiff's location be-
fore time of accident not competent,
when. Presumption of negligence
arises from lack of ordinary care.
Green v. Railway.
609
No presumption of negligence from
mere happening of accident. Egan v.
Railway.
616

Evidence that defendant was negli-
gent in a matter other than alleged
in the petition as plaintiff's cause of
action, and which is also in support
of a theory contrary to the one upon
which the case is being tried, is in-
competent, and should be ruled out.
Negligence must be established by di-
rect proof or must be reasonably in-
ferred from facts proved, etc. Wele-
ver v. Williams.
624

Upon an action to collect rent evi-
dence is admissible for the purpose
of showing that a contemporaneous
parol agreement was made at the
time a written lease was executed
by which the lease was only to be used
in organizing a corporation, and trans-
ferring the same to it, and under no
circumstances to be a valid lease be-
tween the original parties. Metzger
v. Roberts.

675

was no negligence, in such case, is
on the company. Degree of care re-
quired.
Ib.

There is no conclusive presumption
that one intended to kill, because he
purposely struck a blow causing death.
Munday v. State.
712

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

Where inadmissible evidence has
been admitted in behalf of one party,
without objection, similar evidence
may be admitted to rebut or explain
it.
Ib.

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

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

Information required by a police
officer from a third person as to the
amount of nitroglycerine transported
over a certain street by defendant, in
violation of an ordinance, is inad-
missible in evidence under the hear-

say rule. Walter v. Bowling Green.

756

EXECUTORS

TORS-Continued.
dence of advancements form no part
of the estate. Tobias v. Richardson.

81

Debtor heir must account to estate
to claim distribution.
Ib.
Issuance of letters testamentary not
necessary to appointment as executor.
Tidd v. Bloch.
113

Surety company on indemnity bond
of executor who is sole residuary lega-
tee has a lien on his interest in the
estate to the extent of any disburse-
ments made by it on behalf of the
estate, notwithstanding letters testa-
mentary were never issued to him. Ib.
Probate court has original jurisdic-
tion under Sec. 524 Rev. Stat. as to
credits and payment of unsecured
claims.
Ib.

Jurisdiction of probate court is not
interfered with by garnisheeing legacy
in hands of administrator. Orlopp v.
Schueller.
- 127

Common pleas cannot order admin-
istrator to pay money into court in
Ib.
garnishee proceedings, when.
Administrators are public officers
within meaning of Sec. 5531 Rev. Stat.
and an undetermined legacy in such
hands may be garnisheed.
Ib.

Trust company appointed under in-
valid statute is entitled to same com-
pensation as administrators when es-
tate has been fully administered and
received benefits thereof. Bank & Tr.
Co. v. Smith.
317

Executor entitled to reasonable
counsel fees for successfully defending
will, notwithstanding judgment was
based on compromise.

Ib.

Widow not bound to exhaust her
separate property or be in actual need
before subjecting corpus of life estate
to her support. Moore v. Idlor. 502
Application for year's allowance
must be made to probate court. Ib.

The relation of debtor and creditor
does not exist between the life ten-
ant and remainder-man as such; the
former holds rather as trustee. Such
trust continues in the executor of the
life tenant who takes possession of the
property after his death.
Ib.

Whether the inheritance tax law
(97 0. L. 398) applies to the un-
distributed estate of a person who died
testate prior to its enactment, depends
upon when said estate vested under
the provision of the will. Hostetter
v. State.
702