and certain lots in the sub-division of the estate of Samuel Sniveley, being one hundred and fifty feet frontage on the Colerain Pike in said city. The will gave to Jane Richardson, who, by a second marriage became Jane Carey, a life estate in this property, and placed the remainder in fee in a trustee for the benefit of Jacob J. Richardson, a minor. Joseph S. Richardson, the father of said minor, was executor of the will, and by virtue of a lease from Jane Carey, held possession of her life estate, subject to forfeiture for nonpayment of rent. Thomas L. Young was guardian of the estate of said minor. The lots on Everett and Clark Streets, and the Colerain Pike property were unproductive. Acting in all his capacities, Joseph S. Richardson tried to benefit the entire estate by selling the lots on Everett and Clark Streets, and building on the Colerain Pike land. He induced Bernard Kemper to begin the buildings, promising payment out of the proceeds of the other lots, Jane Carey consenting. The other lots were duly sold for $8,900, but Kemper became doubtful about payment and refused to go on unless satifised on that head. Therefore, on October 23, 1875, Jane Carey brought an action in Hamilton Common Pleas, making the executor, the minor and the guardian defendants, stating that the Colerain Pike property was worth $6,000, but was unimproved, a great burden to the estate, not likely to increase in value, and that a sale would be for the benefit of the life tenant, and do no injury to the remainderman. The prayer asked for the sale, and for the reinvestment of the proceeds. In due course the court ordered a sale of the one hundred and fifty feet on the Colerain Pike, which was made December 13, 1875, for $7,125, to Herman P. Goebel, who had no interest in the affair, except to lend the use of his name as grantee in one deed, and grantor in another. On December 24, 1875, the court found that a fund of $15,473.86 was in hand for reinvestment, (the proceeds of the Everett and Clark Street lots and of said Colerain Pike land) and ordered the purchase of ninety feet of the same Colerain Pike land as improved property, for $15,000, expressly including "the six houses erected thereon." This price was fixed by adding to the value of the ground so much as was required to pay Kemper for completing the houses, and he was assured that, if he would build them, he would be paid out of said purchase money. The court approved the purchase, and Goebel conveyed lots eleven, twelve, and five feet off the north part of lot ten, by proper deed in fee simple, to Jacob J. Richardson, the minor, subject to the life estate of Jane Carey. No money was paid. She joined with Joseph S. Richardson in the as

surance to Kemper. The guardian said nothing, but he was a party to the suit, and acquiesced in the sale and reinvestment. Kemper, relying upon said arrangement, built the houses. On June 3, 1878, there was due to him $9,705.42, of which $1,457.95 was to go to John W., Thomas G. and William L. Robinson, partners of J. W. & T. G. Robinson, and $551.19 to Henry Wagner, they being sub-contractors under him. The work was finished in October, 1876., Kemper, finding that the other parties were, for some reason, not willing, or not able, to pay him out of said purchase money, on December 29, 1876, perfected a mechanic's lien on said lots, and in January, 1877, brought suit in Hamilton Common Pleas against the minor, his guardian, the executor, the life tenant, her lessee and the sub-contractors; setting out the facts and praying a finding of the sum due him, a sale of the premises, and other relief, etc. Prior to said suit, Jane Carey had, by another suit, procured a decree forfeiting her lessee's rights under his lease, and the lessee having become insolvent, and having made an assignment for the benefit of his creditors to W. G. Mayer, Kemper made Mayer a defendant, and charged that the forfeiture of said lease was a fraud upon him. Jane Carey and the minor, by his guardian, answered separately, denying any contract with Kemper, and averring that he must look to Joseph S. Richardson alone for his pay. The minor answered also by guardian ad litem in the usual form. The subcontractors filed cross-petitions asserting their claims in due form of law.

The common pleas held that the builders had no claim on the minor's interest; that Jane Carey was estopped from denying that her interest was liable to them for said debt; dismissed the action as to the minor and his

guardian, rendered a personal judgment against Joseph S. Richardson, and subjected Jane Carey's life estate in the Colerain Pike land to the payment of the judgment and costs. Jane Carey, Kemper and the sub-contractors excepted to the respective findings, etc., against them. A motion for a new trial made by Jane Carey was overruled. Proper bills of exception were duly made part of the record, and on January 30, 1879, the case was heard in the district court. That court reversed the judgment of the common pleas, on Jane Carey's petition in error; dismissed Kemper's cross-petition; declared void the decree forfeiting the lease to Joseph S. Richardson as to Kemper and his sub-contractors; held said lease subject to the payment of the cost of the buildings; appointed a receiver; directed him to take charge of the premises and rent them until a sale could be made of said lessee's interest; ordered such sale and

directed a distribution of the rents and proceeds, first, to costs (except on Kemper's cross-petition); second, taxes; third, a proportionate share to Jane Carey; fourth, to the sub-contractors, and fifth, to Kemper. The case is in this court upon the petition in error of Jane Carey and the cross-petition in error of Kemper. Kemper alleges error (amongst other things), first, in dismissing his cross-petition; fourth and sixth, in not subjecting the interest of the minor and of Jane Carey to the extent that they had been benefited by his improvements

The record contains a special finding of facts made by the court of common pleas at the request of Jane Carey. In addition to the foregoing facts, said finding showed that said buildings added materially and permanently to the value of the estate, and produced a rental exceeding $1,400 from premises theretofore unproductive.

GRANGER, C. J.

The solution of the problem presented by these facts, is easy. Although the court may lack power to render a personal judgment against a minor, or a married woman, upon a contract for the purchase of real estate, it has full power to apply the realty so purchased to pay for itself. When the common pleas, on December 24, 1875, ordered the purchase as improved property, for $15,000, of nine-fifteenths of the realty that, only eleven days before, it had caused to be sold for $7,125, as unimproved property, it well knew that no rubbing of Aladdin's lamp had, in that brief time, placed houses thereon. It is very plain that both court and parties treated the arrangement with Kemper as a sufficient snbstitute for the houses themselves, and solely because of that arrangement ordered the purchase as a proper investment of the fund. It was competent for the parties to purchase suitable property covered by a lien, and to agree to pay the debt secured by the lien, as a part of the purchase money. In substance, that is precisely what was done in this case. The completion of the houses was an essential part of the purchase. Kemper consented to complete them on the faith of the assurance made to him that he would be paid out of the fund ordered to be invested in the purchase. The fact that Young, the guardian, said noth ing, is immaterial. He was a party to the suit, and thereby a party to the purchase made under the order of the court. He cannot hold for his ward the benefit secured by that purchase and escape its burden. The finding of facts made by the common pleas, fairly considered, satisfies the mind that the transaction with Kemper, from the outset, was intended for the benefit of the whole es- 1

tate, and of all parties interested in it; that no one purposed that Joseph Richardson should pay for the houses; and that the action brought by Mrs. Carey, in October, 1875, was, by common consent, used as a means for legally paying for the houses out of the estate. It could have had no other purpose. That court sanctioned the plan. Kemper in good faith fulfilled his part. It would work a fraud on him were we now to permit any party to that suit to defeat the full enforcement of the decree then made. As the price of the ground alone was $4,275, the remainder of the sum ordered by the court to be investea, amounts to $10,725, more than enough (with its interest) to pay Kemper in full. It seems possible that Mrs. Carey has never paid anything for the sixty feet deeded to her. She will not suffer if the rents collected by the receiver shall be promptly paid to those who built the houses that produced the rents, provided we reserve to her full right to interplead with J. J. Richardson and his guardian, so that the burden may be shared in the ratio of the values of their estates. It follows that the judgments of the district court and common pleas must be reversed, (without disturbing the report of the master, or the appointment of a receiver, and his power to rent and collect the rents) and a decree entered for the plaintiff for $9,705.42 and interest from June 3, 1878. between Mrs. Carey and J. J. Richarson the costs and the balance due on the buildings should be paid in the proportion of their interests. Her share should be fixed by the aid of annuity tables treating the total cost and expense at the date of the completion of the buildings, as the principal of a fund in which she held a life interest, and the minor the remainder. The net rents collected by the reciever may be applied: First, to pay the costs of this suit, including the receiver's proper fee; next, to the sub-contractors pro rata up to the sums found due them by the master, with interest from June 3, 1878; next, to Kemper until he shall have been paid the sum found due him by the master, with like interest, and any balance to Jane Carey. If any balance shall then remain due to the subcontractors, or to Kemper, unless it shall be paid within thirty days from the decree, with interest, the premises conveyed to J. J. Richardson by Goebel under the order of December 24, 1875, should be sold by the sheriff as upon execution, and the proceeds applied to pay the remaining costs, taxes, interest and debt. The case should remain pending in the com. mon pleas for adjustment, between Jane Carey and J. J. Richardson, of their respective shares of the liability imposed by this decree. Decree accordingly. [To appear it 40 Ohio St.]

Del

No. 127. John W. N. Voght v. Directors of aware County Infirmary. Error to the District Court of Delaware County. Judgment of the district court affirmed. There will be no further report.

151. The State ex rel. Wm. H. Bunker v. Charles A. Miller. Error to the District Court of Hamilton County. Judgment affirmed. There will be no further report.

260. Home Insurance Company of Columbus v. Robert Pinkerton. Error to the District Court of Franklin County. Judgment affirmed. There will be no further report,

262. Mary Pollock v. Joseph Palliotel. Error to the District Court of Scioto County. Judgment affirmed, following Avery v. Vansickle,; Williams v. Urmston, 35 Ohio St. 270, 296. There will be no further report. 644. The Pittsburgh, Cincinnati & St Louis Railway Co. v. Johnson C. McKay. Error to the District Court of Warren County. Dismissed by agreement of parties.

MOTION DOCKET DECISIONS.

No. 102. Pittsburgh, Cincinnati & St. Louis Railway Company v. John W. Hedges. Motion to reinstate cause No. 948 on the General Docket. Motion granted.

104. Elijah Jones v. Elizabeth A. Hubbell et al. Motion for leave to file a petition in error to the Superior Court of Cincinnati. Motion overruled.

105. Julia A. Lyons et al. v. Thomas Barry et al. Motion to reinstate cause No. 1178 on the General Docket. Passed for statement of merits.

107. George W. Durgin, Jr., et al. v. Benjamin F. Brasher et al. Motion to advance cause No. 1233 on the General Docket to be heard with cause No. 575, and to dispense with printing record. Motion granted.

109. Nicholas Joseph v. John Christy. Motion to reinstate cause No. 1189 on the General Docket. Motion granted.

110 Michael Bechled v. Nicholas Riebel. Motion to reinstate cause No. 1188 on the General Docket. Passed for statement of merits.

111. Village of Middleport v. Archibald Denny et al. Motion to reinstate cause No. 307 on the General Docket. Motion granted.

on the

112. James M. Dickman v. Jared B. Knowlton, Administrator, &c. Motion to strike printed record from the files and to dismiss cause No. General Docket for want of complete record. Motion overruled. Plaintiff in error ordered to complete printed record in sixty days.

113. Ambrose Flinn et al. v. Pacific Building Association No. 2. Motion to reinstate cause No. 167 on the General Docket. Motion granted.

114. Robert Mace v. Joseph Mace. Motion to reinstate cause No. 226 on the General Docket. Motion granted.

115. Joseph P. Lively v. John L. Ramsey, Guardian. Motion to reinstate cause No. 165 on the General Docket. Motion overruled.

Where a locomotive with cars attached is standing on a railroad track near a railroad station or other place where cars are frequently moved forward or backward, a person who goes upon the railroad track, seeing the locomotive and cars, and knowing that they would, within a few minutes, be moved towards him, and walks upon the track away from the train without keeping watch of its movements, when there was nothing to hinder him from seeing the movements of the train in time to avoid danger, and when he could have gone in the same direction without walking on the track, is guilty of such negligence as will prevent his recovery for an injury caused by the carelessness or unskillfulness of the employes of the railroad, not amounting to willfulness on their part. A person so walking upon a railroad track is not free from negligence which will prevent his recovery for an injury so caused, if he omits to keep watch of the movements of the train, relying upon a rule or custom of the employes of the railroad, to give a signal for the moving of the train.

The expectation that such signal would be given does not relieve a person in such situation, from constant watchfulness for his safety.

Judgment of district court and of common pleas reversed.

258. Riddle et al. v Howenstein, adm'r, &c., et al. Error to the District Court of Logan County. MARTIN, J.

1. An action to foreclose a mortgage, given to secure a note, may be commenced at any time within twenty-one years after its execution, notwithstanding the note is barred by the statute of limitations.

2. It is discretional with the district court, on appeal, to restrict the parties to the issues made up and tried in the court below; and in doing so, there is no error unless it clearly appears from the record that there was an abuse of the discretion.

Judgment affirmed.

246. Charles J. Strong et al. v. Raphael Strauss. Error to the District Court of Hamilton County. DICKMAN, J.

W. R., guardian of the estate of three minors, upon a sale of their real estate, took the notes of the purchaser, drawing interest, for the deferred payments, payable to the order of said W. R., guardian of A. K., C. K. and E. K., and secured by a mortgage on the real estate sold.

Held:

That one who buys such notes bearing on their face the marks of a trust fund, is put upon inquiry; and if he buys them from the guardian, under círcumstances fairly indicating that they were sold against the interest of his wards, he gets no title from the guardian who misappropriates the proceeds of the sale.

Judgment of the district court reversed, and that of the court of common pleas affirmed.

154. Compton, Ault & Co. v. D. H. Wilder. Error to the District Court of Hamilton County. NASH, J.

W., a citizen of Pennsylvania, was extradited from that state upon a requisition issued by the Governor of Ohio, upon application of C., A. & Co., in a criminal prosecution instituted by them in Hamilton county.

Held: That the service of a summons and an order of arrest, issued in a civil action brought by C., A. & Co. against W., and made upon W. directly after he had entered into a recognizance to appear before the Court of Common Pleas at its next term, and before conviction and before he had an opportunity to return to his home, was rightfully set aside.

Judgments of Superior Court of Cincinnati and District Court of Hamilton County affirmed.

256. Matthews v. American Insurance Co. Error to the District Court of Lorain County.

GRANGER, C. J.

A fire insurance policy for five years required the insured to pay $16 cash, and give a note, payable, according to the terms of the policy, in equal installments, annually, for four years without interest; and stipulated that if any installment should not be paid within thirty days after due, the policy should be null and void until payment by the assured of the installment; but such revivor should not make the insurer liable for any loss occurring during the default.

Held: While the policy was so null and void, no premium was earned by the insurer, and the insured is entitled to a credit on the note for the aggregate of such unearned premium.

Judgments of district court and common pleas reversed and cause remanded.

DICKMAN and MARTIN, JJ, dissented.

214. Beaton & Co. v. Radford. Error to the District Court of Athens County.

BY THE COURT.

R. sued B. & Co. on a promissory note. B. & Co. admitted the making of the note, but by counterclaim charged partial failure of consideration and breach of the contract for which the note was given, and asked damages exceeding the sum due on the note. Issue on the counter-claim was tried, resulting in a verdict allowing to defendant a sum which, being credited on the note, left due to the plaintiff $177.82, for which and for all the costs he recovered judgment. Held: Under section 551, code of civil procedure, (S. & C. 1117), the judgment for costs in favor of the plaintiff was right.

Judgment affirmed.

250. McVeigh v Ritenour et al. Error to the District Court of Licking County,

BY THE COURT.

On April 8, 1871, V. R., being then liable to suit for breach of promise to marry S. M., conveyed his house and lot without consideration to M. R. to prevent a collection of her damages by S. M. Afterwards S. M. recovered a judgment against V. R. for damages for said breach of promise, on which execution was issued and levy made on said premises, which were sold and conveyed to her by the sheriff in due form of law. She then sued M. R. for possession. The common pleas gave judgment in her favor, but the district court reversed that judgment because she had not first obtained a decree setting aside the deed to M. R.

Held:

1. S. M. was a creditor of V. R. at the time he made the deed to M. R.

2. That deed was void as against S. M. (Sec. 2, Stat. Frauds, S. & C. 656), the land was subject to levy and sale under her judgment ( Westerman v. Westerman, 25

O. S. 510), and as purchaser at such sale she could recover possession without first suing to set aside the deed to M. R.

Judgment of district court reversed and common pleas affirmed.

MCCAULEY, J., dissented from paragraph 1.

144. John J. Bradshaw v. Francis Bradshaw. Error to the District Court of Perry County. Settled by the parties and judgment against the plaintiff in error for costs.

254. Lewis et al. v. Lewis. Error to the District Court of Seneca County. Judgment below reversed on authority of Rhea v. Dick, 34 Ohio St. 420, and cause remanded. No further report will be made.

263. Delaware Mutual Safety Insurance Co. v. Hall. Error to the District Court of Summit County. Judgment affirmed without penalty or further report.

266. McAlonan v. the State. Error to the District Court of Summit County. Dismissed for want of preparation.

274. Armstrong v. Martin. Error to the District Court of Darke County. Dismissed for want of preparation.

278. Haven v. Ames. Error to the District Court of Hancock County. Dismissed for want of preparation.

280. Goodwin v. Turner. Error to the District Court of Erie County. Passed for proof of service of record and of plaintiff's brief.

288. C. & P. Packet Co. et al. v. Johnson. Error to the District Court of Washington County. Dismissed for want of preparation.

292. Haas v. Kelling. Error to the District Court of Lorain County. Judgment affirmed because it does not clearly appear that the district court erred in setting aside the verdict. No penalty. No further report.

296. Ketcham v. Simpson. Error to the District Court of Putnam County. Judgment affirmed without penalty or further report.

The Ohio Law Journal.

Columbus, O., June 9, 1883.

THE LEGISLATURE.

The law-making power of this great state has fallen of late years into the hands, or at least within the control, of men of such pronounced inferiority that it is slight wonder that the laws made are a disgrace to any civilized people. The few intelligent men who are or have been members, were powerless to stem the current of imbecility which has flooded the statute books with laws as absurd and unjust as they are ill-advised and unconstitutional.

If the whole number of bills introduced at the last session had been shaken up together in a sack and as many drawn forth at random and declared enacted, as were finally passed, the quality of the legislation would have been vastly better than that really accomplished.

When it becomes possible for an impecunious member, who desires a few state reports at less than cost,-to save his own purse a paltry ten dollars,-to secure the passage of a law making the secretary of state a kind of post-trader in books, and thereby deplete the library of the state, and entail upon the state an expense of at least a thousand dollars, possibly ten times that amount; when by some mysterious juggiery on the last day of a session law can be passed making the supreme court a sort of dinkey to follow the Superior Court of Cincinnati; when judges of courts of common pleas, having well defined and limited constitutional duties and powers, are turned into boards to appoint tax commissioners and health officers, placing the whole system of taxation and sanitary government in jeopardy; when men in various kinds of busiess are compelled to form organizations to protect themselves against unjust and discriminating legislation, it is certainly time to cry a halt; and there is little wonder, indeed, that honest and capable men refuse to be elected members of the law-making body, and we see only incompetent nobodies struggling for what is not but should be an honorable and an enviable position.

Fortunately this is not universal. In some

counties the best men are put forward and elected in the vain hope that when they meet for the purpose of making up the copy for the annual volume of session laws, for which the state printer is in waiting, they will find other intelligent gentlemen who will at least pass harmless although unnecessary laws. But they are disappointed. They find all nations and all colors represented there, and, withal such a total lack of intelligence, or even good horse sense, that the mere appearance of a well meant measure is the signal for its overthrow.

The list of names appearing in the "announcements" is a terrible lecture upon the status of the legislative body of Ohio as molded by the imbecility of the majorities; and a history of their achievements and qualifications, regardless alike of their party affiliations, their age, sex or previous condition of servitude, would read like a Doren or a Rutter log-book.

honorable class which practically governs the We appeal to the bar of the state, that country, which maps out the scope and usefulness of our free institutions, which protects the rights of men and frames all useful and intelligent legislation, to come to the front and bar out imbecility from legislative halls, and re-habilitate the law-making power with its old-time and proper efficiency and honor.

THE following notice has been received from the Secretary of the American Bar Association:

AMERICAN BAR ASSOCIATION, BALTIMORE, May 15, 1883. The Association having voted to hold our next meeting at Greenbrier, White Sulphur Springs, if arrangements could be made for our accommodation there, I find, after correspondence on the subject, that they cannot

be made.

Our next meeting, therefore, will be held as usual at Saratoga Springs, the first session being on Wednesday, August twenty-second

next.

If it is your intention to attend the meeting please inform me of the fact not later than July first, as it will facilitate the arrangements which the Executive Committee must make for the meeting.

By order of the Executive Committee, EDWARD OTIS HINKLEY, Secretary. No. 43 North Charles Street.