claim, especially in the latter case, where it is said, that "the right to maintain an action on claims against an estate presented to and allowed by the administrator, is prohibited by law." The point decided by the court was, that the statute of limitations does not run in favor of an estate against a claim duly allowed by the administrator, so that the question now under consideration was not necessarily involved in the decision of that case. The case of Greer v. Greer, was on the bond of an administrator, and not against the estate, so that nothing in that case, or in the opinion, concludes the case now before us.

If the defendant was exempt from being sued on the claim stated in the petition, the exemption must be found in some statutory provision; and the only statute relied on, is as follows:

Revised Statutes, section 6108 (S. & C. 584, section 96), "No executor or administrator shall be liable to the suit of a creditor of the deceased, until after the expiration of eighteen months from the date of his administration bond, or the further time allowed by the court for the collection of the assets of the estate, unless it be for the recovery of a demand that would not be affected by the insolvency of the estate; or unless it be brought after the estate has been represented insolvent, for the purpose of ascertaining a claim that is contested; or unless the claim has been exhibited to the executor or administrator, and has been disputed or rejected by him."

This section, instead of supporting the claim made by demurrant, is, by implication, strongly against it. The petition avers that eighteen months from the date of the administration bond and the further time allowed by the court for the collection of the assets of the estate, had expired, and that the estate was solvent; thus showing that the plaintiff was entitled to payment, and that the period of defendant's exemption from suit had elapsed.

The claim that the only remedy of a creditor for the payment of an allowed debt, is under section 6210 of Revised Statutes, is fallacious. That section is as follows:

"After a creditor is entitled by law to the payment of his debt, from the executors or administrators, and the amount of the claim has either been admitted to be just or allowed by them, or has been ascertained by judgment or award against them, or by an order of distribution, the bond given by them for the discharge of their trust, may be put in suit by such creditor, if the' executors or administrators shall neglect, upon demand made by such creditor, to pay such claims."

The remedy on the bond is cumulative, not exclusive. Suppose the makers of the bond

be insolvent, and the estate solvent; can there be any doubt that the creditor would be entitled to judgment and execution against the assets of the estate? Surely not; section 6107 provides that all executions against executors or administrators for debts due from the deceased, shall, except in cases otherwise provided for, run against the goods and estate of the deceased in their hands.

The demurrer to the petition was properly overruled.

The issues of fact made by and upon defenses one, two and three, were found by the jury in favor of plaintiff, and as to the matters submitted to the jury, the only error assigned, that need be mentioned, is, that the court ruled out the following testimony offered by defendant in support of defense number two, namely: that Sutherland, before he allowed these claims against the estate, as administrator de bonis non, had been. verbally notified by the widow of Truex, not to allow them. them. No other testimony was offered tending to prove the collusion and fraud charged in the second defense, and taken alone, we think the evidence so rejected did not tend to prove the defense alleged. If the rejected testimony had been admitted, and no other evidence in support of this defense had been offered, we think the court should have directed the jury, on this issue, to find for the plaintiff. Hence, its rejection was not prejudicial to the defendant.

Did the court of common pleas err in sustaining the demurrer to the fourth defense? This defense alleges that more than fifteen years had elapsed between the maturity of the notes and the commencement of the action.

It was alleged in the petition that Sutherland, as administrator de bonis non, had allowed this claim as a valid claim against the estate, on the fourth day of January, 1868, less than fifteen years from the maturity of the notes. This fact was not denied by the answer. By this allowance, the statute ceased to run against the claim. Taylor v. Thorn, 29 Ohio St. 569. By failing to deny the fact of allowance as pleaded in the petition, it must be regarded, under the statute, as admitted, and being admitted, it was wholly immaterial that fifteen years had elapsed from the maturity of the note to the commencement of the action thereon. Upon such a record, we think, the question on the demurrer was the same as if the answer had admitted the allowance of the claim by Sutherland, on the day named in the petition. Hence, there was no error in sustaining this demurrer.

The demurrer to the fifth defense raises this question, whether or not, the statute requir

ing a creditor of an estate to bring an action on his claim within six months after its rejection by the administrator, applies to a case, where the claim has been duly allowed by an administrator, and was rejected by the successor of the administrator allowing it.

The allowance of a claim when exhibited or presented to an administrator for allowance is not conclusive against the estate, as to its validity. It may afterwards be disputed and contested by the administrator. But think the statute binding the right of action to six months after the claim is registered does not apply to a case where the claim is allowed upon presentation, and afterwards disputed; but only to cases where it is disputed or rejected upon presentation for allowance. The statute is, (Sec. 6079 Rev. Stats.) "If a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is representated insolvent, and be disputed or rejected by him, and the same be not refused, the claimant shall, within six months after such dispute or rejection, if the debt *** be then due ***commence suit for the recovery thereof or be forever barred." It would seem clear, that such suit must be commenced within six months after the rejection, although an administrator de bonis non may, during that period, have succeeded. If the estate be entitled to the advantage resulting from the rejection of a claim in such case, why should it not be bound by an "allowance" made by

a former administrator?

We think it is so bound, and therefore the rejection of the claim in this case by the defendant, had no other effect upon it than would a subsequent notice by Sutherland, after he allowed the claim, of his intention to contest it.

An administrator de bonis non takes the estate from his predecessor in the same condition in which he left it. All acts lawfully done in the discharge of his trust by the former administrator are binding on his successor. The law recognizes a privity of estate between them, and it follows, that the case, in this respect, stands exactly as if the same administrator who allowed the claim, had afterwards repudiated it.

There was no error in sustaining the demurrer to this defense.

The only question which remains to be considered, as arising upon the demurrer to the sixth defense, as it appears to us, is that the plaintiff's claim was not allowed by Thomas as executor of Truex within the period of four years after his giving bond as such

executor.

During the whole of this period, Thomas was executor of the creditor, as well as of the

debtor estate. In such double relation he could not deal or contract with himself, but whenever funds belonging to the debtor estate and applicable to the payment of the creditor estate came into his hands, he was bound to treat the same as assets of the creditor estate, to the extent of the indebtedness. If mistakes occur in making transfer of such accounts, they may be corrected on settlement of his final accounts with the probate court. No formal" allowance" of the claim was necessary; but if it were, the credits indorsed upon the notes during the double relation, sufficiently show that such allowance was duly made.

We find no error in the record of the Court of Common Pleas for which the judgment of that court should have been reversed.

Judgment of district court reversed, and that of the common pleas affirmed. [To appear in 39 Ohio St]

BEER V. INSURANCE COMPANY.

(Ohio Supreme Court. May 1, 1883.) INSURANCE-BREACH OF POLICY-CUSTOM. Where a policy on the assured's "general stock of hardware and agricultural implements," in a village in this State, provided that "if the assured shall keep gunpowder [or] petroleum, without written permission in this policy, then this policy shall be void," and in an action on the policy the insurer relies on a breach of the condition, evidence is not admissible to show a custom among hardware dealers in the villages in Ohio to keep for sale such articles, in limited

quantities, as part of the stock.

Error to the District Court of Ashland County.

OKEY, J.

The action in the court of common pleas was on a policy of insurance issued by the Forest City Mutual Insurance Company to Beer & Co., "on their general stock of hardware and agricultural implements contained in the two-story brick building and frame addition, situated on the north side of Main Street, Ashland, Ohio." The words were written on the face of the policy. In the printed part, among the conditions, was the following: "If the assured shall keep gunpowder * * [or] petroleum, * * *without written permission in this policy, *** this policy shall be void." No such permission was given. The stock was consumed by fire. Answer, setting forth the above clause in the condition, and the fact that the assured had, without such permission, kept such articles for sale as part of his stock. Reply, and evidence in support of it, that at the time the policy was issued, there was and continued to be a custom in the villages of Ohio, including Ashland, for persons engaged as Beer & Co. were, in the retail hardware business, to keep

for sale gunpowder not exceeding in quantity twenty-five pounds, and petroleum not exceeding in quantity one barrel, and that the gunpowder and petroleum,referred to in the answer, were kept and retailed in pursuance of such custom. Exception to the testimony. Charge, that such custom, if generally acted on by persons engaged in such retail business in the villages of Ohio, and generally known, was valid, and the policy could not be avoided by keeping such articles without such permission,although the fact that such articles were kept in this store was unknown to the defendant. Exception to the charge. Verdict and judgment for $1,065.83. Judgment reversed in the district court. Petition in this court by Beer & Co. to reverse the judgment of reversal.

The district court did not err. Usage "must not be inconsistent with the words of the agreement." Steel Works v. Dewey, 37 Ohio St. 242, 250; Ledyard v. Hibbard, 48 Mich. 421, 427. This usage was plainly so. Birmingham Birmingham Ins. Co. v. Kroegher, 83 Pa. St. 64, is in point. and other cases fully sustain it. Macomber v. Ins. Co., 7 Gray 257; Wetherell v. Ins. Co., 16 Gray 276; Whitmarsh v. Ins. Co., 2 Allen 581; Commercial Ins. Co. v. Mehlman, 48 Ill. 313; McEwan v. Guthridge, 13 Moore P. C. 304. Nor is this inconsistent with Pindar v. Continental Ins. Co., 36 N. Y. 648. There the insurance was upon the stock "such as is usually kept in country stores," and the custom was held not to be inconsistent with similar conditions in the policy. The case is referred to in Pindar v. Ins. Co., 38 N. Y. 364, s. c. 47 N. Y. 114. To the same effect as 36 N. Y. 648, is Phoenix Ins. Co. v. Taylor, 5 Min. 492; Whitmarsh v. Ins. Co., 16 Gray 359; cf. Leggett v. Ins. Co., 10 Rich. L. 202; Beacon L. & F. Ins. Co. v. Gibb, 1 Moore, P. C. Ń. S. 73. Nor is Birmingham Ins. Co. v. Kroegher, supra., inconsistent with cases which hold that such conditions do not apply where the assured, in the prosecution of his business, necessarily uses the articles specified in such condition. Lawson on Usage, 258, et seq.

Where the written and printed parts of a policy are in apparent conflict, the written part in many cases will prevail, but that rule has no application in this case.

Judgment affirmed.

[To appear in 39 Ohio St.]

BANK V. ZENT.

NATIONAL BANKS-SPECIAL DEPOSITS-LIABILITY. (Ohio Supreme Court. May 1, 1883.)

1. The power to receive special deposits is conferred by the national banking act, upon banks organized under that act.

2. Where a national bank has been accustomed to receive United States bonds, as special deposits, gratuitously, it is liable for any loss thereof occurring through the want of that degree of care which good

business men would exercise in keeping property of such value.

3. A demand of said bonds, and a refusal by the bank to deliver the same, with no other explanation of such refusal than the statement that the bank has no such bonds in its possession, furnish sufficient proof of loss by such negligence as will render the bank liable therefor.

Error to the District Court of Richland County.

The original action was brought in the Court of Common Pleas of Richland County, to recover the value of certain United States bonds alleged to have been deposited with the First National Bank of Mansfield, and by said bank wrongfully appropriated to its own use.

The First National Bank of Mansfield is an association organized under the Act of Congress entitled "An Act to provide a National Currency," &c., approved June 3, 1864.

The court of common pleas rendered judgment in favor of the present defendants in error, which judgment was affirmed by the district court, and this proceeding is prosecuted to reverse the judgment of the district

court.

Five other cases against said bank and its receiver, and involving the same questions, were, by agreement of the parties, tried in the court of common pleas, and are now heard, with this case. The facts are stated in the opinion of the court. UPSON, J.

In behalf of the plaintiffs in error it is insisted that whatever contract or arrangement existed, was between the defendants in error and W. S. Hickox individually, and not as an officer of the bank, and that if he did attempt to bind the bank, without the knowledge of the directors, the agreement was ultra vires, and absolutely void. Upon a careful examination of the testimony, all of which is set forth in the bill of exceptions, we are of opinion that it fully warranted the court of common pleas in finding that the bonds described in the petition were received by the bank as a special deposit for safe keeping; that, with the full knowledge and acquiescence of its directors and officers, the bank engaged in the business of receiving United States bonds on deposit for safe keeping, and that Hickox, as cashier, had general authority to receive such special deposits for the bank. We do not think the right of the defendants in error to recover the value of their bonds depends upon proof that special authority was given to the cashier in this particular instance.

The testimony shows that some of the bonds were actually sold, and the proceeds converted to the use of the bank, and it might well have been regarded as proved that all of the bonds in this case had been thus converted, but we decide this case upon grounds common to all of the cases submitted with this.

posed of by the decision in the case of Noble v. The State, 22 Ohio St. 541.

The second objection cannot be sustained. The statute prescribes the punishment of persons having sexual intercourse, who are "nearer of kin by consanguinity or affinity, than cousins, having knowledge of their relationship," and we are of opinion that under this statute, the degrees of relationship by affinity are to be determined in the same manner as the degrees of relationship by consanguinity, and that a brother-in-law and a sister-in-law are, within the meaning of this statute, nearer of kin than cousins.

Any other construction of the statute would exclude from its operation all relatives by affinity.

Motion overruled.

[To appear in 39 Ohio St.]

WITTE v. LOCKWOOD. PLEADINGS-COUNTERCLAIM-ERRORS IN DEED-COR

RECTION.

(Ohio Supreme Court. May 8, 1883.)

1. The general rule is that a defendant is bound to set up every defense, legal or equitable or both, which he may have to the action, and waives those not pleaded; but where the facts claimed to afford a defense are sufficient to constitute a counterclaim, there is an exception to such general rule.

2. A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to such action respectively claimed. He has his election to rely on such equitable title as a defense or a counterclaim, or he may maintain an action thereon.

Error to the District Court of Lorain County. In an action prosecuted by Philip Lockwood against Otto Witte, in the Court of Common Pleas of Lorain County, to recover possession of a parcel of real estate, containing about 3800 square feet, in that county, the only issue was with respect to the legal title, which issue was framed under the civil code, § 559, Rev. Stats. § 5782. No allusion was made in the pleadings or evidence to any mistake in any of the deeds in the claim of title of either of the parties. Judgment was rendered, in 1876, in the issue joined, in favor of Lockwood, for the recovery of such possession. That parcel of real estate is the property in controversy in this case.

Lockwood being about to enforce the judgment, Witte, in 1877, commenced an action in the Court of Common Pleas of Lorain County, against Lockwood and others, and obtained an injunction against such enforcement. In the petition he states that in 1849, Elam Fairchild was the owner of a certain tract of land, including the parcel above mentioned, and that through a series of purchasers of the whole tract, he (Witte) became the owner thereof in 1870; that the purchaser

from Fairchild paid him for the whole tract, and Fairchild put him in possession of the same, and executed and delivered to him a deed, intending thereby to convey to him the whole tract, but by mutual mistake of the parties, the parcel here in dispute was omitted; that the successive purchasers, in like manner, bought, paid for, and were placed in possession of the whole tract, and received deeds which by like mutual mistakes omitted the parcel in dispute, that he (Witte) is the owner in equity of the parcel in dispute, and entitled to have the legal title to the same; and that the legal title to the parcel in dispute has passed from Elam Fairchild to Philip Lockwood, through successive purchasers, with notice of such adverse possession and consequently of his (Witte's) rights; and that Lockwood had obtained, and was about to enforce, a judgment for the recovery of possession of such parcel, as already stated. Elam Fairchild was made a party, and also all the persons who claimed through him as aforesaid, and the prayer was that the several deeds should be corrected in the particular named, and that the judgment for the recovery of possession should be perpetually enjoined.

Lockwood, in his answer, set up and relied on the judgment in his favor as a bar to the action. There was neither demurrer nor reply to the answer, but the district court, at the trial on appeal to that court, excluded evidence offered by Witte in proof of the allegations of his petition, and Witte excepted; and thereupon the court dissolved the injunction and rendered judgment in favor of Lockwood and against Witte on the pleadings, and Witte prosecutes this petition in error to reverse the judgment.

I. A. Webster for plaintiff in error.

Metcalf & Metcalf for defendants in error.
OKEY, J.

The petition in this case contains allegations which, properly stated, would have constituted a good bill in chancery to reform the deeds, and hence the petition is sufficient. Under the former practice, allegation and proof of such equitable title would not have been permitted in an action of ejectinent, and hence it would have been necessary to resort to such a bill. But under the civil code "the defendant may set forth in his answer as many grounds of defense, counterclaim and set off as he may have, whether they be such as have been heretofore denominated legal or equitable or both" (§ 93; Rev. Stats. § 5071), and hence it is clear that the equitable title might have been set up as a counterclaim. 3 Wait's Act. & Def. 113. Furthermore, it might have been pleaded as a defense (Lancaster, etc., Co. v. Colgate, 12 Ohio St. 344), with