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

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.

Ib.

rogated to rights of mortgagee in the
land. Whitney v. Meister.
593

The doctrine of subrogation rests
upon the principle, that one who pays
the debt or liability of another, for
the purpose of protecting his own in-
terest in property, is entitled to en-
force all the liens and securities of
the party to whom he pays. Life ten-
ant paying assessments not a volun-
teer, and is entitled to subrogation
against the land. Action to enforce
subrogation governed by ten year limi-
tation. Eddy v. Leach.
645

SURETY-

See PRINCIPAL AND SURETY.
TAXATION—

The sale in one state of goods man-
ufactured in another is interstate com-
merce and not subject to state taxa-
tion. Julius, In re.
423

Life tenant paying assessments not
a volunteer, and is entitled to subroga-
tion against the land. Eddy v. Leath.
645

Inheritance tax law (97 O. L. 398)
not a taking of property without due
process of law. Hostetter v. State.
702

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 the
provision of the will.

TIME-

Ib.

Decree for divorce becomes opera-
tive at its rendition. Nauman v. Nau-
man.
37

Time is essence of contracts for
manufacture and sale of goods. Con-
tractors & B. Sup. Co. v. Cement Co.
49

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

A petition in error filed more than
four months from rendition of judg-
ment dismissing petition, but within
four months of order on motion for
new trial is too late. McCallen v.
Railway.
710

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

See COLLEGES AND UNIVERSITIES.
TORT-

Owner of goods fraudulently taken
from his possession may sue in tort
for damages for trespass, sue for value

Owner of goods fraudulently taken
from his possession may sue in tort
for damages for trespass, sue for value
of goods or replevin property. Har-
ter v. Pearson.
601
TRIAL-

It is improper for counsel to assume
facts not in evidence in malicious pros-
ecution. Lieblang v. Electric Ry. 30

Necessities of railroad and whether
use of its right of way is adverse is a
question of fact. Smith v. Railway.
44

A reviewing court will not de-
termine whether evidence is competent
or not when no proper means were ex-
ercised at the trial, by motion or other-
wise, to have it taken from the jury.
North Amherst Tel. Co. v. Jackson.
89

An ambiguous instruction contained
in a charge to the jury is cured by a
subsequent instruction by the court in
which it fully explains what is meant
by the former instruction.
Ib.

Section 6529 Rev. Stat. relating to
change of venue not applicable to
mayor's court. Kappes v. State. 111

Whether facts assumed in hypothet-
ical question as co testamentary ca-
pacity are material or not is not for
jury to determine. West v. Knoppen-
berger.
168
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 neces-
sary testimony to which he was en-
titled. Kneipper v. Richards. 245

Instructions for verdict for defend-
ant proper when contributory negli-
gence is apparent from plaintiff's tes-
timony. Harpham v. Traction Co.

253
Jury not guilty of misconduct be-
cause of misstatement as to relation
to previous case when misstatement

arose from misunderstanding made of
inquiry by counsel. Rapp v. Becker.
321

Charge that important item in will
contest is will itself is erroneous. Ib.
Evidence of circumstances influenc-
ing testator, but unknown to him is
admissible.
Ib.

Giving correct and incorrect charges
upon same matter is prejudicial, it
being impossible to determine which
the jury followed.
Ib.

Right to insist that cause is re-
moved to federal court not lost by
making defense or appealing in the
state common pleas. Monnett v. Rail-

way.

469

It is not error to refuse to permit
one party to call the agent of the ad-
verse party for cross-examination be-
fore such person has been offered as a
witness by the adverse party. Section
5243 Rev. Stat. does not apply to an
agent or employe of the adverse party.
511
Whistler v. Cowan.

Abandonment and adverse possession
are properly triable to a jury. Tudor
Boiler Mfg. Co. v. Greenwald Co. 556

Court should direct verdict for de-
fendant where negligence is not estab-
lished by direct proof not reasonably
inferred from facts proved. Welever
v. Williams.
624

Discretionary power is conferred
upon mayors' courts by Sec. 1821
(1536-782) Rev. Stat., 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
The right of trial by jury is waived
by entering a plea of guilty in a crim-
inal prosecution before a mayor having
complete jurisdiction.
Ib.

TRUANCY CASES-

Probate judge's compensation for
trying. See COSTS AND FEES.
TRUST COMPANIES-

See CONSTITUTIONAL LAW; EXECU-
TORS AND ADMINISTRATORS.
TRUSTS AND TRUSTEES-

Husband and wife may make same
testamentary disposicion of their re-
spective properties. Same trusts hav-
ing been intended by their separate
wills the defective execution of the
wife's will will not defeat trust cre-
ared by the husband's will. Coghlin
v. Coghlin.

18

Conveyance for burial purposes vest-
ing fee simple in trustees. Power to
sell real estate and apply proceeds
for church college. Church v. Gamble.
295

A purchaser who accepts a convey-
ance made expressly subject to a mort-
gage, and receives an abatement in the
purchase price thereof, is not, in the
absence of an express covenant, person-
ally liable for the payment of the mort-
gage. Whitney v. Meister.
593

Vendor as against the purchaser at
foreclosure sale, is entitled to be sub-
rogated to rights of mortgagee in the
land.
Ib.

Where an inspection of property by
a prospective purchaser is prevented,
or its completeness is defeated by the
conduct or words of the vendor, with-

out the vendee's actual knowledge, the
vendee is justified in relying upon the
statements of the vendor as to the con-
dition, without either making the in-
vestigation which otherwise he might be
bound to make or completing the one
which he had commenced. Jones v.
Draper.
785

VENDOR'S LIEN-

See LIENS.
VERDICTS-

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

Instructions for verdict for defend-
ant proper when contributory negli-
gence is apparent from plaintiff's testi-
mony. Harpham v. Traction Co. 253
Verdict cures omissions or defects in
petition. Clev. C. C. & St. L. Ry. v.
Tehan.
457

A verdict of $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.
Ib.

A verdict and judgment for damages
upon a cause of action not made an
issue by pleading and which is sup-
ported by evidence which is incidental
only to the cause of action pleaded, will
be reversed. Cincinnati Connec. Belt.
Ry. v. Burski.
486

Court should direct verdict for de-
fendant where negligence is not estab-
lished by direct proof not reasonably
inferred from facts proved. Welever
v. Williams.
624

VOLUNTARY PAYMENTS-

See PAYMENT; TAXATION; SUB-
ROGATION.

Residuary real estate is sold by liens.
Union Sav. Bank & Tr. Co. v. Smith.
317

Legatees who have been paid are not
proper parties in controversy over
residuary estate.
Ib.

Executor entitled to reasonable coun-
sel fees for successfully defending will,
notwithstanding judgment was based
on compromise.
Ib.

Evidence of circumstances influenc-
ing testator, but unknown to him, is
admissible. Rapp v. Becker.
321
Undue influence is not necessarily
the effort to coerce, but the effect of
coercion upon testator.
Ib.

Charge that important item in will
contest is will itself is erroneous. Ib.

A plain direction to divest child of
title in fee if she die before her hus-
band, must control, although no good
reason appears why a child leaving
issue should thus be divested of title.
Huber v. Carew.
389

A will that all property "shall go as
the law directs" with certain modifica-
tions, is a testamentary disposition,
and the heirs take nothing by descent.

Ib.

Insurance policies which are the
property of decedent form part of the
estate, whether named in testator's will
or not. Plant v. Insurance Co. 499

A widow electing to take under the
will is not bound to exhaust all her
separate property to avail herself of
the corpus of certain property given to
her for life "with power and authority
to sell the whole or any part thereof,
if necessary for her support." Children
take pro rate under will, when. Moore
v. Idlor.

502

A deputy clerk of the probate court
has no authority to receive the election
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.
683
Mellinger v. Mellinger.

After-acquired realty passes under
residuary clauses of will. Lee v. Scott.
799
WITNESSES

Evidence of expert as to comparative
merits of electric wires and insulators
is competent where defendant offers
evidence that insulator used was proper
and safe. North Amherst Tel. Co. v.
Jackson.
89

Experts opinions as to want of ca-
pacity to make will are of no value un-
less facts assumed in hypothetical_ques-
tion are found true. West v. Knop-
penberger.

168

It is not error to refuse to permit one
party to call the agent of the adverse
party for cross-examination before such

Construction of word, "university,"
in Sec. 217 of the new municipal code
(96 O. L. 91; Sec. 1536-933 Rev.
Stat.). Waddick v. Merrell. 437

The word, "terms," used in a clause
of an oil lease providing that "the
terms of this grant shall not exceed
twelve years," refers to the grant, as
well as to the conditions and collateral
matter, and the effect of such clause
is to limit the life of the grant to
twelve years. Griner v. Oil Co. 521

"Vehicles" as used in Sec. 1536-100
(4 ed.) Rev. Stat. includes all classes
and kinds of vehicles, whether used for
hire or not. Sterling v. Bowling Green.
581
"Garbage" includes all refuse of ani-
mal and vegetable matter, used or in-

tended to be used as food for man, also
condemned food. Bauer v. Casey. 598

The term, "franchise," as used in
Lan. R. L. 10360 (R. S. 6767), is con-
tradistinguishable from the term, "of-
fice," in that the former is ordinarily
applied to a private corporation, or
something in connection therewith,
while the latter ordinarily has refer-
ence to the governmental or sovereign
power. State v. McGonagle. 685

In Ohio it is necessary as a general
rule to use the word, "heirs,' in a deed
to convey an estate of inheritance. Lee
V. Scott.
799

WORK AND LABOR—

Measure of damages for breach of
contract for work and labor. Kneipper
v. Richards.
245

Minor plaintiff not manumitted, in
action for personal injuries, cannot re-
cover for wages.

WRIT AND PROCESS

409

A plaintiff in attachment is entitled,
under Sec. 6496 Rev. Stat., to obtain
service by publication upon a showing
that summons cannot be served upon
defendant within the county.
Mere,
collector of subscriptions is net a
"managing agent" of foreign corpora-
tion upon whom process may be served
under Sec. 6480 Rev. Stat. Foote v.
Commercial Co.
378

Issuing second execution without
new levy is sufficient to keep judgment
alive. Such issue need not be entered
on foreign execution docket. Steel v.
Katzenmyer.

YEAR'S SUPPORT-

400

See EXECUTORS AND ADMINISTRA-
TORS.