12. Where an action for personal injury,
resulting from a defect in appliances or ma-
chinery, against a railroad company operating
a line of railroad partly within Ohio and partly
within Pennsylvania, and where it appears
that plaintiff's contract of employment with
the company was made in Pennsylvania and
his services were to be and were actually per-
formed on said road wholly within the limits
of Pennsylvania, and that said accident oc-
curred within said state, whether the second
section of the statute of Ohio (87 O. L., 149), re-
lating to the presumption of knowledge and of
negligence in such cases, applies when it would
change the legal effect of such contract under
the law of the state of Pennsylvania, query?
Railroad v. Blair.
366
CONVEYANCES—
1. Where a party conveys his property by
his own voluntary act, he passes by such con-
veyance the full and complete title to that
property wherever it may be. Wilson v. Gif-
1. He who undertakes to apply as a de-
fense to the payment of a debt the statute with
reference to foreign corporations doing busi-
ness in Ohio, must bring his defense fully and
plainly within the provisions thereof. Such
pleadings should contain averments, to nega-
tive exceptions in the statute. Toledo Com.
Co. v. Glenn Mfg. Co.
COUNTY COMMISSIONERS-
1. The county commissioners under the
ditch and turnpike laws, are left entirely free,
in the exercise of a sound discretion, to select
a competent engineer for the required service,
be also the county surveyor or not. Ginn v.
regardless of whether such engineer selected
1. A judgment creditor of an insolvent
debtor who has in a suit in equity, recovered
a judgment for money against the adverse
party-part of the costs of which suit is taxed
against such insolvent debtor and remains un-
paid-cannot, when the proceeds of such judg.
ment have been paid in court, by filing a
creditor's bill under section 5464, subject such
funds to the payment of his judgment claim
to the exclusion of the equitable claim of a
funds, for fees, for services rendered as master
special master commissioner against such
in the suit in which such judgment was
rendered and the funds realized. Timmonds
v. Wheeler.
CRIMINAL LAW-
2. Under sections 7316 and 6835, a per-
131 son indicted for burglary, may be convicted of
an attempt, even though he be acquitted of
the charge of burglary. Section 6835 makes
an attempt to commit burglary a substantive
offense, and section 7316 expressly warrants
this, if the attempt be an offense. Such a pro-
vision is not in conflict with the constitution.
Donaldson v. State.
2. A foreign corporation doing business
in Ohio, becoming insolvent, makes a convey-
ance of its property in this state to one person,
who takes it subject to the trust placed upon
it by law, and subject to the right of the cred-
itors to have such property subjected to the
equal payment of all the creditors of the firm,
and such person has the right to hold such
property as against a judgment creditor. Bry-
ant v. Johnson.
333
3. When a director of a private corpora-
tion ceases to own stock therein, and the ques-
tion is made directly by quo warranto he will
not be permitted to act as such director.
Campbell Ptg. Press & Mfg. Co. v. Bellman
Bros.
389
4. Where a check which has been cashed
by the prosecuting witness was not placed in
her possession, it was not larceny for the de-
fendant to carry it away with him. Case v.
State.
194
4. Where, by the statutory liability of
the solvent stockholders of a corporation, it
appeared that the creditors would receive sev-
enty-five cents on a dollar, but the creditors
with the exception of plaintiff agreed on a less
amount, the plaintiff is not entitled to the full
amount of his claim, but only to such amounts
as he would have received had there been no
2. Damages for land condemned to sup-
compromise agreement between the creditors. port a sloping fill may be included in an im-
Ferris v. Anton.
532 provement ordinance. Dixon v. Cincinnati. 301
1. To recover special damages you must
plead them. Lime Co. v. Smith.
3. Where plaintiff, a freight conductor, when it is more likely that negligence lies at
has his left hand crushed in an accident neces- the bottom of most of such mistakes. Ib.
sitating first, the amputation of three fingers,
and afterwards, the balance of the hand at the
wrist, and it appears that prior to the accident
one of the bones of plaintiff's left hand had
been broken in the palm of the hand which
had resulted in at least one and probably two
fingers of that hand becoming stiffened and
withered, but which prior accident did not in-
capacitate him from performing his duties as
freight conductor: Held: That a verdict of
eight thousand ($8,000.00) dollars was exces-
sive, but plaintiff below having voluntarily
entered a sufficient remittitur, that error is
cured. Railroad v. Blair.
366
4. Where damages have been caused to
real property by the negligent construction of
the sewers of the municipal corporation, the
measure of damages to be determined by the
jury, would be the difference in the value of
the property before and immediately after the
injury occurred. Cummings v. Toledo. 495
5. The measure of damages in cases
where property has been unintentionally de-
stroyed by the negligence of another, is the
actual value of the property, and where prop-
erty totally destroyed has a market value, that
market value is the measure of compensation
for the loss. Railroad v. McKelvey.
561
6. Where a team of horses were injured
through the negligence of a railroad company,
the proper measure of damages is the expense
of restoration of the horses to health or sound-
ness, compensation for loss of their use during
their disability, and the amount of difference,
if any, between their value before the injury
and after restoration to health. Railroad v.
Kelly.
662
3. Where land is conveyed by deed and
the word "heirs" is omitted, such grantees
will only take a life estate, and upon their
death the grantor if living, or his heirs, de-
visees or assigns in case of his death, would be
the owners in fee of the whole estate, free and
discharged from any claim arising under such
deed, saving of course, any legal demand
against the grantor arising out of any lease
executed to and by him. Stephenson v. Sedam.
609
4. Where a deed was delivered by one
person to another, to be delivered to the
grantees on the happening of an event which
must certainly occur, and coupled with any
condition to be performed by the grantee nam-
ed therein or by any other person and where
no right is reserved to the grantor to alter the
arrangement, the deed is operative, and takes
effect in presenti, and on death of grantor, the
grantee is entitled to receive the same, and
may enforce the delivery, and the knowledge or
consent of the grantee to the arrangement is
not essential or necessary. Pence v. Blackford.
5. It is not essential to the validity of a
deed left by one person with another to be de
livered to a third person on the happening of
an event, certain to happen, as on the death of
the grantor, that the grantee should sur-
vive the grantor, and, if it is a deed in fee
simple, and the grantor dies intestate, the heirs
will take under it what the ancestor would have
taken had he survived the grantor, as the heirs
at law of the grantee and the delivery to them
by the depositary will be sufficient.
6. Where a grantor by deed conveys
property to the trustees of a church for church
1. A non-navigable inland lake, with an purposes, with the stipulation that "should the
inlet and outlet, is the private property of the said land cease to be occupied for church pur-
owners of lands underlying, and subject of poses and as a place of divine worship, the
common law dedication. Bass Lake Co. v. grant will cease and determine," and he sub-
Hollenbeck.
242 sequently conveyed all his interest in said land
to a cemetery association, subject to this
2. Acts and declarations of owners, in- previous grant to the church, and after death
dicating the intent to dedicate property to of the grantor the church burned down and
public use, must be unmistakable in their pur- has never been rebuilt: Held, that the deed
pose and decisive in their character to have from the original grantor to the church vests
Ib. in it an estate in fee, subject only to be divest-
ed by breach of condition; this is a mere pos-
sibility which may never occur, and the pre-
sumption of law would be that the grant being
favorable to the church, it would not forfeit it.
Church v. Cemetery Association.
1. Where by a mistake of the convey-
ancer one of two lots is omitted in the de-
scription of property in the deed, which is not
discovered for several years, when proceedings
are instituted for reformation of deed, a court
of equity will correct the mistake on the
ground that it was a mutual one. Toledo v.
Shulters.
269
2. As between the parties, no claim of
innocent third parties intervening, such cor-
rection of the mistake will not be refused on
the ground of negligence on part of grantee
7. If conditions subsequent were broken,
that did not also ipso facto produce a reverter
of title; the estate continued in full force until
proper steps were taken to consummate the
forfeiture, and this could be done only by the
grantor during his life time, and after his death
by those in privity of blood with him, and in
the meantime only a right of action subsisted,
and that could not be conveyed so as to invest
the right to sue in a stranger.
1. Where a legal and an equitable estate
in realty coming through different persons,
unite in the same holder, the course of the
legal estate, determines whether the holder of
both, does or does not have, an ancestral estate.
Higgins v. Higgins.
grantee, operates as a complete relinquishment
be ordered sold free from any right or dower.
of dower. Such premises may on foreclosure
Mussey v. Budd.
2. The wife is entitled to be paid, out of
funds arising from a sale in partition of an un-
divided interest in real estate inherited by her
husband, the present worth of her inchoate
right of dower in the husband's undivided in-
terest in said real estate. Gillett v. Miller.
1. Where an easement is granted for pri-
349 vate road to abutting land owner, his heirs and
2. D. H. inherited an equitable estate assigns, it inures to benefit of all heirs and
from his father, and subsequently, by action assigns, however many there may be, or into
for specific performance of the contract by however many parcels abutting land may be
which the father acquired the equitable estate, subdivided. Sach v. Cresap.
secured the outstanding legal title to the same
estate; Held, the legal title was not acquired
from a different source, or by purchase, but
from the same source and by inheritance, and
the whole estate is ancestral.
Ib.
DEVISE-
1. Where a testator leaves all his property
to his wife, empowering her to dispose of all the
property remaning at her death, by devise or
bequest: Held, that such power of disposition
was limited and confined to the testator's own
children, and any attempt to divert such part
of the estate to her children, by a second hus-
band, she acts without power or right, and such
devise is invalid and confers no right in such
devisees. Huber v. Free.
537
2. A devisee of a mortgaged estate can-
not claim exoneration as against a pecuniary
legatee. Tucker v. Lungren.
DITCHES AND DRAINAGE-
1. Where a proposed improvement of a
ditch is contemplated, and upon failure of the
commissioners of the respective counties to
agree upon the amount which the upper county
is to pay the lower for the proposed outlet, a
committee is properly appointed, during the
pendency of the proceedings, by the probate
judge of each county, who are to assess this
amount upon the upper county, such com-
mittee may be properly notified as to their
duties, by mail, by the probate judge. Commis-
sioners v. Commissioners.
500
2. An easement for a drain cannot be
enlarged by putting the drain to new uses.
McCabe v. Hood.
3. The plaintiff and defendant are own-
ers of adjoining property separated by a
party wall, having windows of opaque glass.
These windows were boarded up by de-
fendant, because he was annoyed by per-
sons in the house of the plaintiff looking
into his rooms. The plaintiff charged that
boarding up windows was malicious, and
petitioned for an injunction. The defendant,
by answer and cross-petition, denied this
charge, and asked for $2,000 damages on
account of the annoyance of having people
peeking through these windows into his rooms,
which were used by him (a physician) as an
court
office, where operations were performed. The
dismissed the action. Dawson v.
Kemper.
130
EQUITY-
1. A court of equity will not entertain
a suit to forfeit a lease. Adams v. Parnell, 190
which the parties themselves intended to do,
2. The theory of equity is that the thing
shall by the court be ordered done. Toledo v.
3. An agreement by a bank and a business
corporation, that would advance the latter
money to enable them to carry on their busi
ness, provided the corporation, at any time the
bank deemed it necessary, should execute to
2. Where a committee is appointed to as-
it a mortgage upon the personal property of
sess the amount which the upper county is the corporation: Held, that an agreement of
obliged to pay the lower for the proposed outlet that kind will be upheld and aided by a court
of a ditch, and such committee make a return of equity, and is not a preference of such bank
of the amount to the probate court, it is within in fraud of other creditors of the corporation.
the jurisdiction of such court to modify such Campbell Ptg. Press & Mfg. Co. v. Bellman
report, as justice may require, either by in-
creasing or decreasing the amount stipulated
in it.
Ib.
1. Relinquishment of dower by wife in
accordance with the statute, joining in a mort-
gage with her husband, which is supported by
consideration valid between the husband and
4. Courts of equity have always recog-
nized the right and exercised the power, when
funds derived from litigation are brought into
court, to order the fees and costs of their
officers paid out of funds realized by their
exertions, before making distribution thereo!
to the litigant or litigants entitled thereto.
Timmonds v. Wheeler.
5. Where the master commissioner files it sufficiently states that a petition in error has
his report before his fees are paid, he does not, been filed in the case. Bechtold v. Fisher.
by so ǹling it, waive his right to invoke pow-
er of the court of equity to order it paid out of
the funds in court, nor does he by such action,
elect to look to the personal responsibility of
the party against whom the court may, in its
discretion, on the final determination of the
case, tax such costs.
Ib.
1. It is error on the part of a court to re-
quire proof of something not alleged in an in-
dictment or not in issue. Corthell v. State. 123
2. It is not error to allow a preliminary
question which is itself competent to be asked
and answered, when the court and prosecuting
attorney both knew that the subject matter to
which such question related was clearly incom-
petent. Moran v. State.
234
3. It is error to submit to the jury the
question whether a servant of one party to the
contract is a co-employce with a servant of
the other party, engaged in the same employ
ment, where no queftion of subordination be-
tween such servants is involved, for it is merely
a matter of construction of the contract, which
is in writing, and put in evidence and undis-
puted. McCafferty v. Dock Co.
6. In a case of homicide, in which the jury
convict the accused of murder in the first de-
gree, the fact that the trial court, in the charge
to the jury, did not in all respects correctly de-
fine the crime of manslaughter, is not a pre-
judicial error for which the conviction should
be set aside.
Ib.
7. It is not reversible error to allow a re-
ply to be filed by defendant after the testimony is
substantially closed, or where plaintiff was in-
troducing testimony in rebuttal, where the case
was tried precisely as it would have been tried
hd a reply been properly filed, but which was
tried in ignorance of the ommission to file such
reply. Railroad v. McKelvey.
561
8. A mere difference of opinion upon a
conflict of evidence alone would not justify a re-
viewing court to set aside a verdict, upon the
ground that the verdict was against the evi-
dence. Railroad v. Yokes.
9. Where the summons in error states that
the plaintiff in error has filed a petition against
the defendant in error, to obtain a reversal of
he judgment obtained against the plaintiff in
error in the court of common pleas, it is a sub-
stantial compliance with section 6713, ia that
10. A proceeding in error is a civil action,
and is commenced and the appearance of the
defendant is secured in the same manner as in
the commencement of any other action, by ser-
vice of summons, or publication of notice as
provided by law.
11. The general provisions contained in
sections 4987 and 4988, defining when, and under
what circumstances an action is to be deemed
commenced by the service of a summons, have
direct application to action in error, and gọv-
ern and dispose of all questions that may arise
in such action.
Ib.
1. County commissioners were indicted
for wilfully, corruptly and unlawfully entering
into a contract with architects for plans and
specifications for a court house: Held, it is
competent to show that the commissioners on
other occasions prior to entering into the un-
lawful contract, had made unlawful proposi-
tions to other architects for the purpose of
showing their corrupt motive. Stahl v. State.
29
2. There being no allegation in pleadings
that plaintiff in error knew that contract sued
on was made in reference to contract which
defendant in error had with third party and
admission of evidence as to his arrangements
with third party was erroneous. Lime Co. v.
Smith.
3. Admissions made by officer of a corpor-
ation after, and to one not connected with the
transaction, when the corporation is not called
upon to say something, will not bind the cor-
poration. It is error to admit them.
Ib.
4. It is not error for a court to allow a
witness to answer a question which calls for
personal knowledge of such witness on the
subject, without first requiring a preliminary
examination of the witness to be made as to
her knowledge and ability to answer such
question, the defendent not having excepted
to the introduction of such evidence. Turn-
pike Co. v. Hester.
690
5. Mere oral admissions on the trial would
not empower the court to go forward and find
that the facts so admitted on the trial were cor-
rect, and the party would have a right to contest
any such claim. Miller v. Southworth.
9. He cannot, however, withhold evidence
confirmatory of such prima facie case, and of-
fer it in rebuttal, when it does tend to disprove
and answer the evidence given by the defense.
Ib.
10. The admissions of a party are com-
petent to be given in evidence against him,
but when offered as such they must be direct
admissions and not hearsay. Benster v. Powell
& Co.
11. Testimony of witness in behalf of
plaintiff that at some time prior he told plain-
tiff what defendant told him, or testimony of
laintiff that witness in question had told him
What witness had said to witness on some pre-
vious occasion, is hearsay.
Ib.
12. It is not error to allow evidence con-
cerning a statement or expression alleged to
dave been made by accused when charged with
commission of the crime, at a time when sev-
eral persons were present, but testified to by
only one, while the others did not hear it.
such facts are shown such book is incompetent.
and cannot be introduced as evidence. Ben-
nett v. Shaw.
480
19. Letters written to his first wife, by a
person prosecuted for bigamy, which contain
expressions indicating that the marriage rela-
into the hands of an officer of the law, having
tion existed between them, which letters came
been voluntarily delivered to him by the wo
man who claimed to be the first wife of the ac-
cused; Held, that such letters are competent
and may be given in evidence. Hanley v. State.
488
dence a certain paper writing purporting to be
20. It is error, prejudicial to admit in evi-
first wife, but which does not show when it
a certificate of marriage of defendant with his
was written or when it was delivered by the
person by whom written.
testified upon a former trial has changed his
the testimony at the former trial, may read his
testimony, an official stenographer who took
notes to the jury as affecting the testimony of
234 the witness, if he remembers that at the time
the testimony was correctly taken, and that
the notes contain all the testimony of such
witness, although at the time he is called upon
to testify, he has no independent recollection
of what the witness did testify. Pennsylvania
Co. v. Trainer,
21. Where it is claimed a witness who
13. The order in which testimony goes
to the jury does not affect its competency, if
it all finaly gets to the jury.
Ib.
14, Where, in a personal injury case, the
petition alleges an injury to the hand "neces-
sitating amputation of three fingers," it is
competent upon the trial, without amending or
filing a supplemental petition, to prove that
since commencement of the case it has become
necessary to amputate the remainder of the
hand at the wrist, as a direct result of the in-
jury complained of. Railroad v. Blair. 366
15. In an action for damages caused by
fire, alleged to have been caused by sparks
emitted from defendant's locomotive, plaintiff
may offer testimony showing the condition of
the locomotives on defendant's road, and he
may chow that the engines of the company
generally emitted sparks as they passed along
the line of the railroad company near the vi-
cinity where the fire in question was started.
Martz v. Railroad.
451
16. It is error for the court to refuse and
charge the jury, as requested by plaintiff, that if
the jury found that the property of the plaintiff
was ignited from a fire originating upon the
lands of the railroad company, which accord-
ing to 91 O. L., 187, makes it prima facie evi-
dence that such fire was caused by operating
17. Where a party in an action offers to
put in evidence the laws of another state, in
order to be entitled to offer such laws in evi-
dence he must have pleaded the existence of
such laws. Andrews v. Smead,
460
22. Questions only leading up to show
that property which has been destroyed had a
market value are competent, as well as ques-
tions which show that the property had a mar-
ket value. Railroad v. McKelvey
23, It is competent to show, as bearing
upon the actual value of property destroyed,
what its actual value was as a whole before and
after its destruction.
18. In order that an account book may 27. In an action to recover damages for
be introduced in evidence as being competent, alleged negligence causing a personal injury,
the party or any competent witness must tes- declarations of the party injured made some
tify that it is a book of original entries; that time after the injury, simply to the effect that
the entries therein were made by him or by a the party is suffering pain, when not made to a
person now deceased, or by a disinterested per- physician for the purpose of professional at-
con now non-resident of the county, and untiltendance, are not competent as evidence.
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