author: CROW, J.

text:
    BONDS — SCHOOLS.
    [Auglaize (3rd) Circuit Court,
    November Term, 1911.]
    Kinder, Crow and Donnelly, JJ.
    L. W. Kattman v. New Knoxville Sch. Dist. (Bd. of Ed.) et al.
    Written Notice of Special Meeting Necessary to Render Bonds Issued thereat Valid.
    Proceedings of a school board providing for an issue of bonds are invalid, where the action pertaining thereto was taken at a special meeting from which one member was absent, and no written notice of the meeting had been served on each member of the board either personally or at his residence or usual place of business, as required by Sec. 4751 G. C.
    [Syllabus by the court]
    Appeal from common pleas court.

      Hoskins & Stout and G. A. Stueve, for plaintiffs in error.

      Theo. Tangeman; Pros Atty., and Goeke, Anderson, & Musser, for defendants in error.
   CROW, J.

An action is brought by Mr. Kattm'an and those for and on whose behalf he sues, and it sets forth certain proceedings resulting in a proposal to issue two certain sets of bonds of the bonds of the defendant board of education.

By a concession of counsel for defendant in open court we are relieved of the necessity of making any reference to the $3,200 of bonds referred to in the petition and in the second defense to the answer. The facts," without going into detail, in the averments of the petition are substantially with reference to the other disputed matter, to wit, the thirteen thousand dollars of school bonds, and are as follows:

On April 12 and possibly for some time prior thereto it was generally known, this in 1911, that it was proposed by the board of education of New Knoxville school district to issue $13,000 of bonds to provide for the erection of a new schoolhouse. There had been a mass meeting on April 12, 1911, at which apparently it ivas generally known throughout that school district and especially within'the limits of New Knoxville, which comprises the greater part of the district, that it was proposed to provide a new schoolhouse. The number of members of the board of education at that time was five. On the twelfth, the five members held what might be called an informal meeting or caucus at which it was agreed that the board would take the necessary steps to provide for the issuing of the bonds. The evidence clearly shows, in fact it is not disputed, that there was no notice of the informal meeting of April 12, but it was arranged that on the following evening the members of the board would meet as regularly as they then could and take the necessary preliminary steps leading up to the issue of the bonds. This was known to all the members, and on the night of the thirteenth a meeting was held at which all the members excepting one were present, and there by the unanimous action of those present the preliminary steps were regularly taken. Much of the petition and a great deal of the arguments were devoted to a discussion of the limitation of the power of the board to issue bonds, the interpretation and application of the Smith 1 per cent tax maximum rate and the time of the passing of the notices of the election, but the disposal we make of the case renders unnecessary any allusion to those features of this case.

The validity of the meeting of April 13 is directly challenged. An interpretation of Secs. 4750 and 4751 G. C., in connection with the notice given, which will be later discussed, we think determines the proper disposition to be made of this case.

Section 4750 G. C. provides:

“The board of education shall make such rules and regulations as it deems necessary for its government and the government of its employes and the pupils of the schools. No meeting of a board of education, not provided for by its rules or by law, shall be legal, unless all the members thereof have been notified, as provided in the next section.”

Section 4751 G. C. reads as follows:

“A special meeting of a board of education may be called by the president or clerk thereof or by any two members, by serving a written notice of the time and place of such meeting •upon each member of the board either personally or at his residence or nsnal place of business. Such notice must be signed by the official or members calling the meeting. ’ ’

S'o that, by the direct language of See. 4750 G-. C. a meeting, such as was -had and at which the preliminary steps were taken, the meeting of April 12, 1911, is prescribed.

It is urged by counsel that the case of Young v. Rushylvania, 4 Circ. Dec. 3.19 (8 R. 75), however, renders inapplicable the reasoning, rather renders inapplicable the provisions of Sec. 4750 G. C. And it should be stated was by a divided court, Judge Seney dissenting:

“A meeting of the village council consisting of six members, was called by the mayor for October 29. ’The members were all notified of the time, place and purpose of- the meeting, •which was to transact some particular business, ‘ and for other business coming before the council.’ The notice to meet does not appear to have been in writing. At the time and place fixed for meeting, the mayor and five members met and acted •as a body and transacted business. Held: The meeting was valid. ’ ’

The statute in force and which was being analyzed and passed on in this case, Sec. 1677 R. S., did not require that the notice should be in writing. It provided that the notice should be served personally upon the members of the board, such a notice as that could be served orally and hence the decision resting on that ground meets our approval, but there was absent from the statute under consideration in Young v. Bushylvania, supra, any prohibition or any declaration of the invalidity of .any such meeting so held. It has been the apparently continued effort of the lawmaking body so far as the administration of the school laws were concerned, to throw such safegaurds •about the meetings that no meeting could be held unless notices thereof should be given in writing. That was not done, and in the view of the case that is such a material infirmity in these proceedings that the remaining steps, apparently regular and lawful, are of no force and can not avail as authority for the Issuing of the thirteen thousand dollars of bonds. It may be ¿said in passing that while it is not necessary for us to decide whether this notice was or was not defective, we are inclined to-the holding that it was defective in that it proposed, in the-notice of the election, that the issue of the bonds should be in. conformity to Sec. 3991 R. S. (G. C. 7625).

So that, without further comment we find for the plaintiffs. A decree will be entered accordingly, costs will be adjudged.' against the defendants and the injunction heretofore issued will be made perpetual, and execution is awarded for costs and the ■ case will be remanded to the court of common pleas for execution.

Kinder and Donnelly, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GAS AND OIL.
    [Licking (5th) Circuit Court,
    October Term, 1912.]
    Voorhees, Shields and Powell, JJ.

      North American Oil & Gas Co. v. J. P. Drumm.
    Provision in Lease for Payment of Rental In Event of Failure to Sinkr W»M Within Prescribed Time, not Contract to Pay Rental but. Option to Extend Lease.
    A provision in a lease of gas and oil lands, that the lease shall, become void in the event of failure to sink .a well within a prescribed time, unless a stipulated rental is paid “annually thereafter until said first well is completed,” does not constitute a. contract on the part of the lessee to pay the rental, but is a. mere option to extend the lease by payment of cash rental if he so desires, and an action for recovery of rentals under-such ■ a lease will not lie. ■
    [Syllabus by the court ]
    Error to common pleas court.

      Fitzgibbon é Montgomery, for plaintiff in error.

      J. M. Swartz, for defendant in error:
    Cited and commented upon by the following authorities r 18 Am. & Eng. Enc. Law (2 ed.) 270; Bryans, Law of Petroleum & Nat. Gas p. 92; Evans v. Gas <& Tr: Go. 29 N. E. Rep. 398' find.; 31 L. R. A. 673]; Lynch v. Fuel Gas Co. 165 Pa. St. 518= [30 Atl. Rep. 984] ; DufUeld v. Michaels, 102 Fed. Rep. 820' [42 C. C. A. 649] ; Young v. Ellis, 91 Ya. 297 [21 S. E. Rep. 480] ; Gillespie v. Oil & Gas Co. 236 111. 188 [86 N. E. Rep. 219] ; Rhoads v. Gas & Oil Go. 80 Kan. 762 [104 Pac. Rep. 851] ; Woodland Oil Co. v. Crawford, 55 Ohio St. 161 [44 N. E. Rep. 1093; 34 L. R. A. 62] ; Nolle v. Tyler, 61 Ohio St. 432 [56 N. E. Rep. 191; 48 L. R. A. 735]; Gas Co. v. Eckert, 70 Ohio St. 127 [71 N. E. Rep. 281]; Vendocia Oil & Gas Co. v. Rolinson, 71 Ohio St. 302 [73 N: E. Rep. 222; 104 Am. St. Rep. 773; 2 Ann. Cas. 444] ; Blodgett v. Zinc Co. 120 Fed. Rep. 893 [58 O. C. A. 79]; Rolerts v. Bettman, 45 "W. Ya. 143 [30 S. E. Rep. 95] ■,Wills v. Gas Co. 130 Pa. St. 222 [18 All. Rep. 721; 5 L. R. A. 603]; Ward v. Gas &Oil Co. 131 Ky. 711 [115 S. W. Rep. 819] ; Bettmcm v. Shadle, 22 Ind. App. 542 [53 N. E. Rep. 662],

      Reversing, Drumm v. Oil & Gas Co. 23 Dec. 746 (13 N. S. 453).

   PER CURIAM.

This was an action in the court below in which the defendant in error, J. P. Drumiu, sought to recover from the plaintiff 'in error certain gas rentals upon a lease given by him to the said plaintiff in error, on March 17, 1908.

The petition was filed in April, .1911. The lease sued on contained this condition: “Provided a well is not completed on said premises within one year from date hereof, unavoidable accidents or delays excepted, then this grant shall become null- and void, unless party of the second part (being the plaintiff in error) shall pay, or cause to be paid, to the party of the first part at the rate of one dollar per acre annually thereafter until said first well is completed.”

It is upon this provision of the lease that plaintiff seeks to recover the rentals due upon said land for the second year after the termination of such lease, provided the same would be terminated except for the payment of such rentals as provided therein. It is alleged that this lease would continue for one year from the date of its execution, within which time defendant below was to complete a gas well, and if not completed, then the provision above quoted was to operate and take effect.

The defendant below (plaintiff in error) paid the agreed rentals or forfeit for one year from March 17, 1909, to March 17, 1910; and it is for rentals claimed to have accrued from March 17, 1910, to March 17, 1911, that this action is brought.

The liability of the defendant below, or the plaintiff in error, depends upon the construction to be given to the provision of the lease above quoted. Does such provision constitute a •contract on the part of plaintiff in error to pay such rentals, and thereby extend the life of the lease, if it is so desired?

We are of the opinion that the language of this lease does not constitute an agreement on the part of the defendant below to pay rentals; that it grants an option to such defendant to •extend the. life of the lease by paying the stipulated amount, but that it does not constitute an agreement on its part that it will pay such amount as rentals whether it desires to have such lease extended or not.

It was held by the circuit court of this county in the case of Knowlton v. Logan Nat. Gas & Fuel Co., not reported, upon .a lease containing a provision very similar to the provision in the lease under review, that the option was with the second party to continue the life of the lease by making such payment, .and, in effect, that it was only a privilege reserved to it to extend such lease, and not an obligation assumed by it to pay rental that could be enforced in a suit for that purpose.

We think the proper construction to be given this lease does not sustain the judgment of the court below, and that the •same should be reversed because of being against the weight of the evidence, and because of insufficient evidence to sustain the .same.

The judgment of the court of common pleas will be reversed, and the case remanded to that court for further proceedings according to law.


text:
    DRAINS AND DITCHES — RAILWAYS.
    [Licking (5th) Circuit Court,
    October Term, 1912.]
    Yoorhees, Shields and Powell, JJ.
    Toledo & Ohio Cent. Ry. v. Licking Co. (Comrs.)
    .Allegation of Ample and Sufficient Drainage in Suit to Enjoin Assessment for County Ditch, Good against Demurrer.
    Allegations by a railway company that its right of way has ample and sufficient drainage and the construction of a county ditch would be of no benefit to the company are good against demurrer in an action to enjoin the levying of an assessment against the company’s right of way for the construction of such a ditch.
    [Syllabus by the court.]

      Injunction.

      Eibler & Eibler and Lewis, Finley & Gallinger, for plaintiff. ' ;
    P. B. Smythe, Pros. Atty., and J. M. Swartz, for defendant..
   PER CURIAM.

The petition in this case seeks to enjoin the commissioners; .from constructing a county ditch near or upon the right of way of 'the plaintiff company, and from collecting an assessment, levied by said commissioners against the plaintiff for the construction of said ditch.

The- grounds alleged in the petition upon which relief is; sought are that the plaintiff’s grounds have ample and sufficient, drainage without the construction of said ditch; that it would, be of no benefit whatever to the plaintiff to have such county-ditch constructed; that it has sufficient drainage upon-lower-lands adjoining its own, without the construction of any ditch, and also that the assessment made by the commissioners for the construction of said ditch was made according to the watershed, drained, and not according to the rule of benefits.

We think the petition recites a cause of action. It is held, in Blue v. Wentz, 54 Ohio St. 247 [43 N. E. Rep. 493]; that:

“Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the costs and expense of a ditch necessary for the drainage of other lands, simply for the reason, that the surface water-of his lands .naturally drain therefrom to and upon the lands, requiring artificial drainage.
“In making an assessment on lands benefited by'artificial, drainage, the extent of their water shed is not the proper rule,, but the amount of surface water for which artificial drainage/ is required to make them cultivable, and the benefits that will accrue to the lands from such drainage.”

We think that, under this authority, the petition, is sufficient, and that the demurrer to the same should be overruled. Exceptions may be noted. Leavé will be granted defendant to> answer within thirty days.


author: SMITH, P. J.

text:
    INSURANCE.
    [Hamilton (1st) Circuit Court,
    November 23, 1912.]
    Smith, Swing and Jones, JJ.
    American Assurance Co. v. Jesse H. Dickson.
    1. Proof of Disability Accepted and Offer to Pay Part of Sick Benefits,, Rejection of Claim of Insured.
    Acceptance of proof of disability on the part of a policy holder and treatment of such proof as final, with an offer to pay a certain amount thereon but less than the amount claimed, constitutes a rejection of the claim by the company, and suit instituted thereon after such rejection is not prematurely brought.
    2. Insured’s Going Out for Air and to Physician’s Office for Treatment, do not Defeat Insured’s Claim of Total Disability by Sickness.
    In a policy providing for sick'benefits, a clause reading that to-constitute total disability the insured must be “strictly, necessarily and continuously within the house and there regularly and personally attended by a legally qualified physician,” does not bar recovery by an insured who, under the advice of his physician, went out for air and to his physician’s office for-treatment.
    Error to common pleas court.

      Reeve, Burch Peters <& Oppenheimer, for plaintiff in error :■
    Cited and commented upon by the following authorities r Germania Ins. Go. v. Schild, 69 Ohio St. 136 [68 N. E. Rep. 706?. 100 Am. St. Rep. 663] ; Travelers’ Ins. Go. v. Myers, 62 Ohio St-529 [57 N. E. Rep. 458; 49 L. R. A. 760] ; West v. Insurance Oo27 Ohio St. 1 [22 Am. Rep. 294] ; Connecticut Fire Ins. Go. v.. Clark, 24 O. O. C. 33 (2 N. S. 585) ; North American Ins. Co.. v. Sickles, 13-23 O. C. C. 594 (2 N. S. 222) ; Walrath v. Insurance Co. 9 Circ. Dec. 233 (16 R. 413); Graham v. Insurance Co. 12 Dec. Re. 157 (2 Dis. 255) ; Union Life Lns. Co. v. Jameson, 31 Ind. App. 28 [67 N. E. Rep. 199] ; Behling v. Insurance Co. 117' Wis. 24 [93 N. W. Rep. 800] ; German Ins. Co. v. Hayden, 21 Colo. 127 [40 Pac. Rep. 453; 52-Am. St. Rep. 206] ; Seitzingerv. Modern Woodmen of Am. 204 Til. 58 [68 N. E. Rep. 478] ? Aetna Ins. Co. v. Johnson, 74 Ky. (11 Bush.) 587 [21 Am. Rep,, 223] ; Guarantee Go. of N. Am. v. Bank & Tr. Go. 183 U. S. 402 [22 Sup. Ct. Rep. 124; 46 L. Ed. 253] ; Cooper v. Benefit Ass?i. 141 Mich. 487 [104 N. W. Rep. 734] ; Bishop v. Casualty Co. 99 App. Div. 530 [91 N. Y. Supp. 176] ; Schneps v. Casualty Co. 101 N. Y. Supp. 106; Bief'V. Casualty Co. 131 Wis. 368 [111 N. W. Rep. 502]; Dunning v. Accident Assn. 99 Me. 390 [59 Atl. Rep. 535] ; Gainor v. Life Assn. 21 Misc. Rep. 27 [46 N. Y. Supp. 965]; Liston v. Casualty Co. 28 Misc. 240 [58 N. Y. Supp. 1090] ; Appel v. Insurance Co. 76 Ohio St. 52 [80 N. E. Rep. 955; 10 L. R. A. (N. S.) 674; Ann. Cas. 821]; Gillon v. Assurance Co. 127 Cal. 480 [59 Pac. Rep. 901]; Binder v. Accident Assn. 127 Ia; 25 [102 N. W. Rep. 190] ; Bryant v. Insurance Co. 23 Mass. (6 Pick.) 131; Gallenbeck v. Belief Assn. 84 Minn. 184 [87 N. W. Rep. 614] ; Davis v. Accident Ins. Co. 73 N. H. 425 [62 Atl. Rep. 728] ; Kelly v. Supreme Court, 46 App. Div. 79 [61 N. Y. Supp. 394] ; German-American Ins. Co. v. Docking, 115 Pa. St. 398 [8 Atl. Rep. 586] ; Fire Assn. v. Colgin, 33 S. W. Rep. 1004 (Tex. Civ. App.) ; Gauche v. Insurance Co. 30 Fed. Rep. 347; Cascade F. & M. Ins. Co. v. Publishing Co. 1 Wash. 452 [25 Pac; Rep. 333] ; May, Insurance Sec. 469.

      Millard Tyree, for defendant in error.
    The plaintiff sued for $126 sick benefits, and was given judgment.
   SMITH, P. J.

Notwithstanding condition No. 11 of the policy of insurance sued upon in this case providing that “Legal proceedings upon this policy shall not be brought until after three months from the date of filing final proofs at the home office of the company, nor brought at all unless commenced within twelve months from the time when the right of action shall arise” the court is of the opinion that this action was not prematurely instituted.

The evidence discloses that the company accepted proof of loss from defendant in error, treated the same as final and offered to pay a certain amount thereon, but not the full amount claimed. This amounted to a rejection of the claim, and having thus determined, defendant in error was not called upon to delay his action further.

The construction placed by the trial court, in its charge to the jury, upon the clause in the policy relating to sickness indemnity (house confinement) we think was correct.

This clause provides as to total disability, that the insured shall be “strictly, necessarily and continuously confined within the house and there regularly and personally attended by a legally qualified physician, not to exceed a period of twenty-six consecutive weeks.”

The fact that the insured under the advice of his physician went out for air, and to his physician’s office for treatment, could not, we think, defeat his right of recovery within the meaning of this provision.

Any other construction would be unreasonable. The conduct of the insured in this respect in obeying his physician was essential to his recovery, and acting in good faith he is entitled to his indemnity.

Hoffman v. Hospital Assn. 128 Mich. 323, 329 [87 N. W. Rep. 265; 54 L. R. A. 740]; Scales v. Protection Assn. 70 N. H. 490 [48 Atl. Rep. 1084]; Mutual Benefit Assn. v. Nancarrow, 18 Colo. App. 274 [71 Pac. Rep. 423].

There being no error in the record the judgment is affirmed.

Swing and Jones, JJ., concur.


author: JONES, O. B., J.

text:
    MANDAMUS — OFFICERS—SCHOOLS.
    [Hamilton (1st) Court of Appeals,
    1913.]
    Swing, Jones and Jones, JJ.
    State ex rel. Bloom v. Cincinnati (Bd. of Ed.).
    1. Contractor for School Engineer and Janitor not Employe in Classified Service.
    A person who by contract with a hoard of education of a city district, agrees for the sum of $6,999 to perform the duties of janitor-engineer of a school building, employ his help and furnish certain materials, netting him the sum of $100 per month for his own services, is not an employe of the hoard within the meaning of Gen. Code 4485, providing for the removal of officers and employes in the classified service.

      2. Mandamus Refused Employe Falling to Appear and Answer Charges Preferred to Require Board of Education to Again Prefer Charges and Fix Time for Hearing.
    Mandamus does not lie upon application of a school janitor-engineer, failing to appear and answer at the time fixed, charges preferred hy a hoard of education, to again require the hoard to prefer charges against him and give him opportunity for-hearing thereon.
    Error to common pleas court.

      J. B. Derbes and E. Scott King, for plaintiff in error. Alfred Bettman, city solicitor, for defendant in error.
   JONES, O. B., J.

Belator was a janitor-engineer of Woodward High School and as such received from the board of education of Cincinnati the sum of $6,999 per year out of which sum he was required to pay for his help and to furnish certain material, netting-said relator an average of $100 per month.

By a letter from the chief engineer, June 17, 1911, he was notified that his services would not be required by the board of education after June 24, 1911. He demanded to know the-charges against him and that he be given a hearing. On July-3, 1911, the board of education passed the following resolution:

“Be it resolved, that there exists a cause relating to the suitableness and capacity of John L. Bloom to perform his duties as engineer-janitor of Woodward High School which is. sufficient to justify his removal in this, to wit: that the said John L. Bloom has violated the rules governing the janitor serv- ■ ice of the Cincinnati public schools in that—
“First, he has been insolent to teachers, the principal and to his superiors, and
“Second, he has used intoxicating liquor while on duty,. and
“Third, he, has been inefficient in his care of the said building.
“Be it further resolved that the clerk is hereby directed to send a copy of this resolution to the said John L. Bloom and another copy thereof to the civil service commissioners.
“Be it further resolved that the said John L. Bloom be-: ■given a reasonable opportunity to be heard in his own behalf upon the said charges.”

A copy of this resolution was sent to the relator and •another copy to the civil service commission of the city of Cincinnati. Said commission fixed July 17, 1911, for hearing said matter and so notified the relator.

Instead of presenting himself for such hearing before the civil service commission at that date or attending-the meeting of the board of education and demanding a hearing by it, the relator brought this proceeding below wherein he sought by mandamus to require the board of education to prefer charges against him and give him an opportunity to be heard before said board and after said hearing to determine said charges and if sustained to certify same to the civil service commission.

The writ of mandamus was properly denied. The resolution of the board of education as passed preferred specific charges and offered him reasonable opportunity to be heard in his own behalf and the record fails to show that he availed himself of such opportunity. It seems unnecessary for him to seek by mandamus to obtain that which he had already been afforded. His position with the board of education was not that of an employe coming within the terms of the General Code but was in the nature of a contract relation. Lehigh Coal & Nav. Co. v. Railway, 29 N. J. Eq. 252; Rogers v. Railway, 31 S. C. 220 [9 S. E. Rep. 1059].

Judgment affirmed.

Swing and Jones, JJ., concur.


author: VOORHEES, J.

text:
    EVIDENCE — WILLS.
    [Delaware (5th) Court of Appeals,
    May Term, 1913.]
    Voorhees, Shields and Powell, JJ.
    Presbyterian Church (Bd. of F. M.) v. Henry W. Bevan, et al.
    1. Unqualified Opinions as to Sanity of Testator by Nonexpert Witnesses Incompetent.
    The opinions of nonexpert witnesses as to the sanity of a testator are incompetent, where such witnesses do not qualify by giving the facts coming under their observation upon which their opinions are based.
    2. Answers to Hypothetical Questions Submitted to Expert Witnesses Should be Based on Facts Testimony Tends to Prove.
    While it is not necessary that hypothetical questions submitted to expert witnesses should be based on conceded facts or be stated in the language of the witness, replies to such questions are incompetent where the questions are not based on facts which the testimony tends to prove.
    3. Delusion of Testator as to Foreign Missions, not Controlling in Making Will, not Lack of Testamentary Character.
    Lack of testamentary capacity is not shown by evidence of a religious conviction on the part of the testator upon the subject of foreign missions, where his delusion with reference thereto, if any existed, did not control the making of his will, but on the contrary he disposed of his property without reference to foreign missions except and in the event of his son and only heir dying without issue.
    [Syllabus by the court.]
    Error to common pleas court.

      Overiurf & Hough and Waight & Moore, for plaintiff in error.

      Marriott & Freshwater and Pugh & Pugh, for defendant in error.
   VOORHEES, J.

The case below was tried on an amended petition filed May 1, 1909, and issue joined by answer filed February 5, 1910. The object of the suit was, and is, to set aside the last will and testament of said James Bevan, deceased, on grounds stated in said amended petition.

The will was made on December 17, 1894, and James Bevan died February, 1903. His will was admitted to probate and record in the probate court of Delaware county, Ohio, on May 30, 1903.

The' grounds on which the will is contested are set forth in said amended petition, and are in substance that at the time of making said will and for many years prior thereto the said James Bevan was not of sound mind and memory, but by reason of old age and sickness was mentally incapacitated from making a will or proper disposition of his property, and was persuaded and unduly influenced into signing said will by persons whose names are unknown to plaintiff, at their suggestion, influencing and prejudicing the weak mind of the said James Bevan against the interests of the plaintiff; second, that said will and the devise therein to the said defendant Board of Foreign Missions of the Presbyterian Church in the United States of America, were procured and made by the exercise of undue influence over the mind of-the plaintiff’s father, the said James Bevan, so that such will or paper writing does not, because of such undue influence, express his wish or will; third, that said paper writing or pretended will is not the valid last will and testament of said James Bevan, deceased, because the same is not executed and is not signed at the end thereof as required by the statutes of Ohio, and is therefore void. Said pretended will was not signed by deceased or any one thereunto authorized hy him.

To the amended petition plaintiff in error, defendant below, filed its answer, setting up his defenses:

First, after admitting a number of allegations contained in the amended petition, among which are that the defendant below, plaintiff in error, admits that it is an eleemosynary corporation organized as alleged in the amended petition; that on February 28, 1903, James Bevan died; that on May 30, 1903, a certain paper writing, purporting to be the last will and testament of the said James Bevan, deceased, bearing date of December 17, 1894, was presented to and admitted to probate by the probate court of said Delaware county; that said paper writing remained in said court as a portion of the records thereof, and that letters testamentary were issued thereon by said probate court to the said Henry W. Bevan, defendant in error, as administrator with the will annexed; that by the terms of said paper writing, the said plaintiff in error is named as devisee of said James Bevan, deceased, depending, however, on certain conditions and contingencies expressed therein.

Defendant below, plaintiff in error, denies that “said paper writing is not the last will and testament of James Bevan, deceased, for the reason that said James Bevan, at the date-of said paper writing, and for many years prior thereto, was not of sound mind and memory; and denies that by reason of old age and sickness was mentally incapacitated from making a will or proper disposition of his property, and was persuaded and unduly influenced in signing said paper writing by persons whose names are unknown to plaintiff, defendant in error, at their suggestion, influencing and prejudicing the weak mind of said James Bevan against the interests of the plaintiff.”

Defendant further denies that said paper writing and devise therein to said answering defendant “were procured and made by the exorcise of undue influence over the mind of said James Bevan, so that said paper writing does not, because of such undue influence, express his wish and will. ’ ’

Said defendant further denies “that said paper writing is' not the valid last will and testament of said decedent, James Bevan, because the same is not executed and is not signed at1 the end thereof as required by the statutes of Ohio, and is therefore void.” And further denies that said will was not signed by said decedent or any one thereunto authorized by him. The defendant denies each and every allegation in the amended petition contained not herein specifically admitted to be true.

As a second defense the- defendant adopts all and singular the admissions," denials and allegations in the first defense contained as far as the same may be applicable herein, and says that the plaintiff on March 17, 1903, filed said will for probate and used his influence to accomplish the probate of the same; that he sought the administration of the estate .of said James Bevan under said will and the appointment as administrator with the will annexed, and was appointed as such, and duly qualified on July 2, 1903, and has ever since acted under said appointment; that in making application for said appointment, plaintiff made affidavit asserting snob instrument as the last will and testament of said James Bevan, and praying authority thereunder to administer said estate.

Defendant further says that plaintiff; ever since his appointment, has acted as the administrator of said estate„and has acted upon and under the terms of said will, and has administered the estate under said will as such administrator with the -will annexed; that said plaintiff has received and accepted his legacy under said will and has taken possession of the real estate of which the said James Bevan died seized, and has sold property and collected money in the administration of such estate, all by virtue and under the authority of said will, for all of which plaintiff is now estopped from assailing or denying the validity of said will.

Defendant prays that an issue be made up as to whether said paper writing is the last will and testament of said James Bevan; that the same may be declared to be the valid last will and testament of said James Bevan; that the said Henry W. Bevan, plaintiff, be estopped from assailing or denying the validity of said will; and for all other proper relief.

Upon issue so made up and joined, said cause was tried to a jury at the April term, 1912, to wit, April 25, 1912, resulting in a verdict and finding by the jury “that the paper writing described in the petition and produced at the trial purporting to be the last will and testament of James Bevan, deceased, is not the valid last will and testament of the said James Bevan, deceased. Signed, Eugene Nash, Foreman.”

Thereupon, the Board of Foreign Missions, defendant, excepted to said finding of the jury, and gave notice of its intention to file a motion 'for a new trial, which was accordingly done within the time required by law.

Proceedings in error are prosecuted to this court. Sixteen grounds of error are set forth in the petition in error as reasons for reversal of the judgment as follows, to wit:

First, the court erred in sustaining the demurrer by the plaintiff below filed October 3, 1905, to answer of estoppel by defendants below.

Second, for error of the court in admitting testimony offered by plaintiff below to which the defendant below at the time excepted.

Third, for error of-the court in rejecting testimony offered by defendant below upon the trial of the cause, to which ruling of the court the defendant below at. the time excepted. *

Fourth, irregularity in the proceedings of the court by which the plaintiff was prevented from having a fair trial.

Fifth, misconduct of the jury.

Sixth, accident and surprise which ordinary prudence could not have guarded against.

Seventh, that the verdict was given under the influence of passion and prejudice.

Eighth, that the verdict is not sustained by sufficient evidence and is contrary to law.

Ninth, the verdict of the jury is contrary to law.

Tenth, error of law occurring at the trial and excepted to by the defendant at the time.

Eleventh, error of the court in its general charge to the jury.

Twelfth, error of the court in giving special instructions to. the jury asked by plaintiff below.'

Thirteenth, the verdict of the jury should not have been for defendant and against plaintiff.

Fourteenth, misconduct of counsel for defendant.

Fifteenth, the court erred in overruling the motion for a new trial.

Sixteenth, there are other errors manifest on the record not shown by the motion for a new trial.

All the grounds are not urged in the arguments or briefs, and we will consider such as we regard as material and necessary in reaching a correct conclusion in the case.

The first ground of error complained of in the petition in error, is that the court erred in sustaining the demurrer by the plaintiff below, filed October 3', 1905, to answer of estoppel by defendants below.

As a second defense in said answer it is alleged that the plaintiff filed the will of his father, James Bevan, deceased, for probate, used his influence to accomplish the probate, sought the administration of the estate under the will, and was appointed administrator, qualified, and has ever since acted as such; that in making the application for appointment he made affidavit asserting that the instrument 'was the last will and testament of his father; that ever since said appointment he has acted as administrator, and has administered upon the estate; that he received and accepted the legacy under the will, and has taken possession of the real estate of which his father died seized and has sold property and collected money under the estate as administrator. From these facts he is estopped from thereby contesting the validity of the will.

In support of the demurrer, we are cited to the decision of this court in the case of Leedy v. Cockley, 32 O. C. C. 299 (14 N. S. 72), but the facts in that ease are so different from the facts set up as a second defense in the answer filed October 3, 1905, in the case at bar that we do not regard the case an authority which should control this court in deciding upon the sufficiency or insufficiency of the second defense in said answer.

A history of the pleadings will demonstrate the insufficiency of said defense. The original petition was filed January 25, 1905, and to that petition an answer was filed September 18, 1905, in which the same defense was set up. A demurrer was interposed to that defense by the plaintiff and the same was sustained, to which exceptions were taken.

On May 1, 1905, the plaintiff filed an amended petition which contained practically all the averments of the original petition and some new allegations, one being that the signature to the will was not the signature of James Bevan.

To the amended petition the defendants filed an answer February 5, 1910, and in which they repeated the second defense which was contained in their answer to the original petition.

To this answer, and to neither of the defenses therein contained was ever any demurrer filed by the plaintiff. A motion was filed to strike out this defense, but it was never heard. The amended petition superseded the original petition and the answer to the amended petition superseded prior answers to the original petition.

The case was' tried on the amended petition and the answer thereto, which answer contained the plea of estoppel. Not having been demurred to, it was part of the pleadings, making up the issues upon which the cause was tried. Upon estoppel Henry Bevan was a witness. This clearly demonstrates that there was no prejudicial error in the court sustaining a demurrer to the second defense in the answer to the original petition. There was no error in sustaining the demurrer to answer of estoppel filed October 3; 1905.

The main or principal errors are in the admission of testimony on behalf of plaintiff below, error in the proceedings of 'the court by which the defendant was prevented from having a fair trial.

These errors are raised in the petition in error under grounds 2 and 4, and may be considered together.

There is error in the record in the admission of testimony on behalf of the plaintiff below in this:

The nonexpert witnesses did not sufficiently qualify before giving an opinion as to the mental condition" of the testator at the time he made his will. All the authorities hold that nonprofessional witnesses are allowed to state their opinions on the trial of an issue involving mental capacity or soundness or unsoundness of mind, in connection with the facts on which the opinions are formed. The only exception to this rule of evidence is that recognized in the probate of wills and in issues to try their validity. The subscribing witnesses are allowed and required to state that in their opinion the testator was of sound and disposing mind and memory. The principle has come to be generally recognized ■ that nonprofessional witnesses may give their opinion upon the question of sanity as a result of their personal observations of the person whose mental condition is in "issue after stating the facts which they have observed.

'Tested by this rule of law, as to the testimony of nonexpert witnesses, in giving .an opinion as to the soundness or unsoundness of the mind of the testator, James Bevan, we think there was error in permitting the witnesses, J. ■ A. Clingan, W. D. Stayman, W. B. Matthews, Henry Donivan, Henry Evans, John Soli, J. B. Jones, William Pritchard, C. M. Leonard, James M. Richey and John McClure, to give their opinions as to, the soundness of mind of said testator at the time he made his will.

Error in the admission of the expert or professional witnesses in connection with the hypothetical question is equally manifest.

Hypothetical questions should be based upon facts which the evidence tends to prove. It is not required that they should be based upon conceded facts, nor that they should be stated in the language of the witness. Meeker v. Meeker, 74 Iowa 355 [37 N. W. Rep. 773].

A medical witness who has seen and examined the injured party and has testified to his condition, may state what in his opinion produced the symptons he has described. A hypothetical question may assume such facts within the range of the evidence as the party believes the evidence tends to establish. Louisville, N. A. & C. Ry. v. Wood, 113 Ind. 554 [14 N. E. Rep. 572; 16 N. E. Rep. 197].

The answer of an expert witness to a hypothetical question must be supposed to rest on all of the facts stated in such question ; and if one of these facts is not found in the case the jury must disregard the answer. Turnbull v. Richardson, 69 Mich. 400 [37 N. W. Rep. 499]; People v. Foley, 64 Mich. 148, 156 [31 N. W. Rep. 94]; West v. Knoppenberger, 26 O. C. C. 168 (4 N. S. 305).

Tested by these rules of evidence, and in connection therewith, from a comparison of the hypothetical question submitted to the expert witnesses, with the testimony in the record, it is so manifest that the hypothetical questions propounded to the medical experts were not substantially correct as shown by the evidence introduced on the trial of the case that the opinions given by the experts based upon the facts assumed in the hypothetical question are entitled to no weight. That is to say, the hypothetical facts upon which the questions were based were so exaggerated and unsupported by the evidence in the case, the opinions Avere not entitled to any weight in determining the issue in the ease.

The sole value of the opinion must of necessity depend upon the correctness of the statement of facts upon which it is based. If the facts are incorrect the opinion can have no weight or value.

Therefore, in view of the incompetent testimony given by the nonprofessional experts; there is manifest error in the record in this case.

With this incompetent evidence eliminated the verdict of the jury is contrary to law, 'and is not sustained by sufficient evidence.

When we come to consider the law on the subject of testamentary capacity, there is no evidence to overcome the reasonableness of the will, which was made under the circumstances that James Bevan made his will. His only child was a son, twelve years of age, untried in business and uncertain of life and health; he gives him sufficient property for his life to yield him an ample income for his support in health or sickness, to wit: the use of .245 acres of land, and two houses in the city of Delaware, and personal property in amount and value.. of $6,280.

In his will he gives the use of his property to his wife during her life; to his son if living at the death of his wife during his life; if the son leaves children to them in fee simple.

The verdict in this case can not be accounted for on any theory other than prejudice of the jury. The modern tendency of juries in will contests is to be governed by their own notions as to what the will should be, and how the testator, according to their individual notions, should have disposed of his property. It seems that the verdict is the result either of a misapprehension of'the charge of the court as to law, or bias and prejudice in favor of the defendant in error or against the testator, Henry Bevan, and that they must have caught the spirit that was breathed forth in the testimony of several of the witnesses that they thought the old gentleman was not competent to make a will because he made a will different from what they would have made. In this case we are clearly of the opinion that the verdict of the jury is clearly and manifestly against the weight of the evidence and contrary to law. The ohly theory upon which the verdict can be accounted for was the bias and prejudice of the jury.

It is hardly necessary to extend the discussion further. The testimony upon the question of testamentary capacity of James Bevan, counsel for defendant in error substantially concede, does not show want of testamentary capacity excepting as manifested by his religious conviction upon the subject of foreign missions. In other words, he was controlled by an insane delusion in making his will.

To avoid a will on the ground of delusion of the-testator, the delusion must be an insane delusion and the will must be a product of it. Johnson v. Johnson, 105 Md. 81 [65 Atl. Rep. 918; 121 Am. St. Rep. 570].

“Delusions on the part of the testatrix, though without foundation, that her sons had defrauded her, are not sufficient grounds to set aside her will passing over her sons. They still have the burden of proof to show not only that the testatrix was laboring under such delusions at the time she made the will, but also that the will was the result of such delusions, before a court is justified in setting aside the will therefor.” Hemingway, In re, 195 Pa. St. 291 [45 Atl. Rep. 726; 78 Am. St. Rep. 815].
“Delusions can scarcely be regarded as evidence of general insanity, and when evidence of them is opposed by other evidence tending to prove the general capacity of the person whose mind is in question to attend to his own affairs, and to dispose of them with sagacity, or at least in obedience to the free impulses •and motives of his mind, his contracts and his dispositions of his property, testamentary and otherwise, must be treated as valid, unless connected in some way with his insane delusions. ’ ’ Lucas v. Parson, 24 Ga. 640 [71 Am. Dec. 147]; Maynard v. Tyler, 168 Mass. 107 [46 N. E. Rep. 413]; Rice v. Rice, 50 Mich. 448 [15 N. E. Rep. 545]; Hollinger v. Syms, 37 N. J. Eq. 221.

It can hardly be contended -with any reason that his religious delusion on foreign missions had any connection with his will, as he disposed of his property without regard to foreign missions except on condition that his son should die leaving no. issue. '

This disposes of the case. It is not necessary to pass upon the other assigned errors. Judgment of the court below is reversed with costs, and the verdict is set aside for reasons stated in the foregoing opinion. Cause remanded to the common pleas for new trial and proceedings according to law. Exceptions.

Shields and Powell, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — LIMITATIONS.
    [Wayne (5th) Court of Appeals,
    February 8, 1913.]
    Voorhees, Shields and Marriott, JJ.
    Perry F. Badger, et al. (Admrs.) v. Maud V. Orr.
    1. Two Years’ Limitation for Actions against Administrators Extended to Include Period between Revocation of Appointment by Probate and Restoration on Appeal.
    Where the appointment of an administrator is revoked by the probate court, but on appeal the administrator is restored to his office and duties, the period during which he was suspended, from his office is to be deducted in fixing the two years’ limitation for the bringing of an action against him as such administrator, prescribed by Sec. 10746 G. C.
    2. Wife may Sue Personally for Services in Giving Special Care to Invalid for Whose Board and Lodging Husband Previously Received Compensation.
    A married woman living with her husband may maintain an action in her own name for services in giving special care and attention to an invalid for whose , board and lodging in their home her husband has already received compensation.
    3. Administrator of Husband Mentally Incompetent Liable for Necessaries Furnished Invalid Wife, Notwithstanding Guardian Failed to Approve Such Indebtedness.
    The liability of a husband for necessaries or' care furnished to his wife is not affected by the fact that he is insane or mentally incompetent to transact business, and an action for recovery for services or necessaries so furnished may be maintained against the administrator of such husband notwithstanding the indebtedness was incurred during 'the lifetime of the husband and was not approved by his guardian.
    [Syllabus by the court.]
    Error to common pleas court.
    The plaintiff’s cause of action in the court below was founded upon a promise for the payment for services rendered by the plaintiff for the said Keziah Badger, at the request of Mieháel Badger, her husband, from April, 1906, until January, 1909. The claim was presented, duly verified, to the administrators, Mareh 14, 1911, and was rejected March 25, 1911. Suit was commenced in the court of common pleas June 21, 1911.
    On September 1, 1911, the defendants filed an amended answer setting up four defenses. For a first defense the defendants admit that they are the administrators with the will annexed of Michael Badger, deceased, but they do not allege when they were appointed such administrators nor is the date of their appointment alleged in the petition. In this defense it is alleged that the claim of the plaintiff was rejected on Mareh 25, 1911. It does not appear on the face of the answer in this defense that the claim is barred either by the six months’ statute or by the two years’ statute, the limitations for bringing suits against the administrators of an estate of two years after their appointment and giving notice.
    In the second defense the defendants allege that more than two years next before the commencement of this suit, to wit, on Mareh 5, 1909, defendants were, by the probate court of said county, duly appointed and qualified as administrators with the will annexed of said Michael Badger, deceased, at which time they gave bond as administrators, and afterwards, within three months after the giving of said bond, they caused notice of their appointment to be published in a newspaper of general circulation in said county for three consecutive weeks. It is further alleged in said second defense that Michael Badger died January 10, 1909, and that the plaintiff’s cause of action, if it ever did accrue, accrued prior to Mareh 5, 1909.
    For a third defense, defendants aver that during the period of thirty-two months from April, 1906, to January, 1909, said Michael Badger was incapable of transacting any business on account of his weak mental condition and during said time was an imbecile and did not have mental capacity to transact any business and make any contracts, that during the time from May, 1906, to the time of his decease he was under guardianship and had a guardian of his person and estate, which guardian was duly appointed by the probate court of said county and such guardian transacted all business for said Michael Badger, all of which was known to the plaintiff, and said guardian took care and charge of and provided for all the wants and necessaries of said Keziah Badger.
    For a fourth defense, defendants deny that the plaintiff performed services and work to the extent and amount and of the kind and value mentioned in the petition, and aver that whatever services were rendered and work performed for said Keziah Badger, by plaintiff, during the time mentioned in said petition was rendered and performed by said plaintiff at the special instance and request of the guardian of Michael Badger, who was the guardian of the person and estate of said Michael Badger during said period; which services and work was performed by said plaintiff under and by virtue of a contract with said guardian; for all of which services and work rendered by said plaintiff for said Keziah Badger full payment has been made by said guardian to the plaintiff, and nothing whatever is now due said plaintiff from said defendants for any service or work performed for said Keziah Badger.
    Defendants further say that during the period from April, 1906, to January, 1909, said plaintiff was married and was living with her husband, Willis H. Orr, and said plaintiff and her said husband constituted the family at whose home the services were rendered and work performed for said Keziah Badger by plaintiff and that whenever payment was made to said plaintiff by said guardian for such work and services as above mentioned, receipts were given by said plaintiff as evidence of full payment for services mentioned in said receipts, but, in giving such receipts, plaintiff signed her said husband’s name, which receipts of payment of all services and work performed by said plaintiff for the full satisfaction of said plaintiff.
    To this amended answer the plaintiff files reply to the second defense, in which she admits that the defendants were appointed and qualified as administrators of the estate of Michael Badger, and gave bond as such administrators and caused notice of such appointment to be published as alleged in said amended answer. She admits that Michael Badger died January 10, 1909'; but the plaintiff says that the appointment of such administrators was revoked by the probate court of Wayne county, on August 19, 1909, and Corwin D. Swan was by said court duly appointed and qualified as special administrator of said estate and acted as such from said date until February 19, 1910, when he was removed and the defendants were reappointed as administrators with the will annexed of said estate.
    For reply to the third defense, plaintiff says said Michael Badger, before said adjudication of imbecility and the appointment of said guardian, brought the said Keziah Badger to the home of Willis II. Orr, husband of the plaintiff; that the said Keziah Badger was a paralytic and was in a helpless condition. She remained in the home of said Willis H. Orr until after the death of the said Michael Badger. Plaintiff further says that the services so rendered by the plaintiff were necessary for the care, well-being and comfort of. the said Keziah Badger and were not a part of, but were additional, to her household duties as the wife of Willis H. Orr. The guardian had full knowledge of the character of the services and that they were being rendered by the plaintiff and said guardian never paid the plaintiff for said services.
    For reply to the fourth defense plaintiff says that the services she rendered for the said Keziah Badger were not included in any contract with said guardian for which full payment has been Paade the plaintiff. She denies that any payment was made to her for any of said services, and she denies that any receipts were given by her to said guardian for said services or that any receipts given by her under her husband’s name were intended to be, or in fact were, payments in full for said services or in satisfaction thereof, or that she ever gave said guardian the receipts therefor.
    The case was tried to a jury upon issues made up by the petition, the amended answer, and the reply to the amended answer, as shown above, resulting in a verdict in favor of the plaintiff for $1,178.38. The motion for a new trial was filed and upon consideration thereof the court directed a remittitur of all in excess of $700, otherwise a new trial would be granted. "Ten days were given for the plaintiff to determine as to the remittitur, which was consented to, and the judgment entered accordingly.

      Error is prosecuted to this court by Perry F. Badger aud Ira Badger, administrators with the will annexed of Michael Badger, deceased, as plaintiff in error v. Maud V. Orr, defendant in error.

      Critchfield & Hay, for plaintiffs in error:
    Cited and commented upon by the following authorities r Jenney v. Walker, 80 Ohio St. 100 [88 N. E. Rep. 123] ; Teaff v. Hewitt, 1 Ohio St. 511, 520 [59 Am. Dee. 634] ; Delaplane v. Smith, 38 Ohio St. 413; Sanker v. Mattison, 11 Circ. Dec. 125 (20 R. 229) ; Kinkead, Code PI. 649; Giauque, Settlement of Deeed. Est. 599, 605; Pollock v. Pollock, 1 Circ. Dec. 408 (2 R. 140) ; Harris v. O’Connell, 85 Ohio St. 144 [97 N. E. Rep. 49] ;, Gibbs v. Bunch, 63 Miss. 47; 22 Cent. Dig. Sec. 1751; Beed v. Minnell, 30 Ala. 61; 18 Cyc. 470, 471, 914, 936; Shephard v. Rhodes, 60 111. 301; Jordan v. Dickson, 10 Dec. Re. 147 (19 R. 64) ; Spayne v. King, 7 Dec. 158 (4 N. P. 299); Baltimore & O. Ry. v. Glenn, '66 Ohio St. 395 [64 N. E. Rep. 438]; 26 Cent. Dig. 2406Miller v. Dickinson Co. 68 Iowa 102 [26 N. W. Rep. 31]; Barnes v. Moore, 86-Mich. 585'[49 N. W. Rep. 585]; Porter v. Dunn, 131 N. Y. 314 [30 N. E. Rep. 122] ; Harrington v. Gies, 45 Mich. 374 [8 N. W. Rep. 87] ; Mason v. Dunbar, 43 Mich. 407 [5 N. W. Rep. 432; 38 Am. Rep. 201] ; 9 Am. & Eng. Enc. Law 817; Hensley v. Tuttle, 17 Ind. App. 253 [46 N. E. Rep. 594],

      J. O. Fritz and Frank Taggart, for defendant in error.
   VOORHEES, J.

Seventeen grounds of error are set forth in the petition in error as reasons for the reversal of the judgment. All the grounds of error set forth in the petition in error are not urged upon our consideration in presenting the case, but several of the grounds are insisted upon as reasons for a reversal of the judgment. One of the principal grounds relied upon by the plaintiffs in error is that the action of the plaintiff below, the defendant in error, was barred by the statute of limitations as to time of bringing suit against administrators, namely within two years from the time of the appointment of said administrators and the giving of bond by said administrators.

Section 10746 G. C., among other things, provides:

“No executor or administrator, * * * shall be held to answer to the suit of any creditor of the deceased unless it be commenced within two years from the time of his giving bond except as hereinafter provided. -A creditor whose cause of action accrues after the expiration of two years from the time the executor or administrator gave bond according to law, and before such estate is fully administered, may begin and prosecute such action within one year after the accruing of such cause, and before the estate is fully administered. No cause of action against an executor or administrator shall be barred, by lapse of time, until the expiration of one year from the time it accrues. ’ ’

It is contended in this case that the plaintiffs in error were appointed administrators with the will annexed of Michael Badger, deceased, on March 5, 1909, and gave their bond and notice of their appointment within three months of the time of their appointment. On March 14, 1911, the claim of the defendant in error was presented, duly verified, for an allowance, and on March 25, 1911, the claim was rejected by said administrators and their rejection thereof endorsed thereon. As we have seen, on June 21, 1911, suit was brought by the defendant in error against said administrators. It is contended by the defendant in error that this statute of limitations does not control in this case.

The plaintiffs in error were appointed administrators with the will annexed of Michael Badger, deceased, but the appointment of such administrators was revoked by the probate court of said county on August 19, 1909, and one Gorwin D. Swan was, by said court, duly appointed and qualified as special administrator of said estate and acted as such from said date until February 19, 1910, when he was removed and the plaintiffs in eiTor were reappointed, as administrators with the will annexed of said estate, and it is contended by the plaintiffs in error that the proceedings in the probate court for the removal and revoking of the appointment of said administrators upon the appeal of the cause to the court of common pleas, only suspended the office of administrator so held by them and upon the reappointment of said administrators by the court of common pleas, they were restored to their office and duties as such administrators, and that during the interim between the time of the removal and the reappointment, the statute of limitations, requiring the presenting of claims against the estate to the administrator, was not suspended but remained in full force.

We can not agree with this contention or construction of the statute, but rather think that Sec. 10753 G-. C., does control, which provides that “when an executor or administrator dies, resigns, is removed or his letters are. revoked or his powers have ceased, without having fully administered the goods and estate of the deceased, and a new administrator of the same estate is appointed, the time allowed to the creditors for bringing their action shall be enlarged as follows, to so much of the eighteen months provided for the limitation of the action as- expired while the former executor or administrator continued in office, must be added so much time after the appointment of the new administrator as will make two years in all. ’ ’

According to this statute the time intervening between the revoking of the letters of administration and the removal of said administrators from office by the probate court and their subsequent reappointment by the court of common pleas would be deducted from the time allowed by the statute of limitations for bringing suit. That is to say, that the^ plaintiffs in error were appointed March 5, Í909, and duly qualified as such administrators, but the probate court on August 19, 1909, revoked said appointment and removed said administrators from their said office and appointed a special administrator. Upon appeal of the ease to the court of common pleas, that court on February 19, 1910, removed said special administrator and reappointed said plaintiffs in error. Now, adding the time they had served before their removal (which is five months and fourteen days) to the time they served after their reappointment, and before the bringing of this action, and adding thereto the time of suspension between their removal and the time of the reappointment, the period of time elapsing would be two years and nine days; but, deducting the nineteen days of suspension, the action was brought within the two years allowed by Sec. 10753 G-. C. And therefore, the contention of the plaintiffs in error is not sustained as to the time of bringing the action.

It is also contended by plaintiffs in error that the plaintiff below, being a married woman, living with her husband, at whose home the 'services were rendered and the work performed for said Keziah Badger, can not maintain said action, and they cite the case of Spayne v. King, 7 Dec. 158 (4 N. P. 299), in support of this contention. But on the contrary, from the facts in this case it is very clear that the services rendered by the defendant in error in this case were not such services as are contemplated by the duties of a wife in the discharge of her domestic duties as wife and housekeeper, referred to in the case of Spayne v. King, supra, or in the authorities cited from New York, relating to the domestic relations of husband and wife. Therefore, we hold that the defendant in error was entitled to maintain this action in her own name, and that the facts disclosed in the record fully sustain her in her cause of action.

It is contended by the plaintiffs in error that at the time the alleged contract was made by Michael Badger with the defendant in error and her husband, that he, Michael Badger, was insane and mentally incompetent to transact any business. A husband is liable for necessaries furnished a wife although he may be insane or incompetent, to transact ordinary business (Secs. 7997 to 8003, G. C.; Beach, Contracts Sec. 1408; Clark, Contracts 778). Therefore, the contention of the plaintiffs in error that Michael Badger was not liable for the support of his wife and for necessaries furnished her can not be sustained.

It is further contended by the plaintiffs in error that for the services rendered by the defendant in error she has been fully paid, and in support of- this contention a number of receipts have been produced and are attached to the bill of exceptions as evidence of this contention. Upon an examination of the receipts themselves, they do not sustain this contention, and taken in connection with oral evidence that was properly intro’dueed in the case in the way of explanation of the receipts, it is shown beyond all question that the contention of the plaintiffs in error that the defendant in error was paid for her services, for which this action was brought, is not sustained.

It is further contended by the plaintiffs in error that the verdict of the jury in this case is not sustained by the evidence, but is manifestly contrary thereto. In this contention we do not agree with counsel, but on the contrary, after a careful examination of the record, we are unanimous in the opinion that the evidence supports the verdict of the jury and that there is no error in the finding of the jury as to the facts in favor of the defendant iñ error, in support of her claim. We have examined the records with a view of determining whether or not any of the alleged grounds of error set forth in plaintiff’s petition in error are well taken and we are unanimous in the opinion that they are not.

Therefore, we find no error in the record and the judgment, with the remittitur allowed, is affirmed, with costs, without penalty.

Shields and Marriott, JJ., concur.


author: JONES, E. H., J.

text:
    ATTORNEY AND CLIENT — COSTS.
    [Hamilton (1st) Court of Appeals,
    July 21, 1913.]
    Swing, Jones and Jones, JJ.
    Theodore Horstman v. Cincinnati (City).
    Plaintiff in Taxpayer’s Suit Awarded Judgment in Court of Original Jurisdiction, Prior to Amendment of Statute, Entitled to Costs and Attorney Fees, Notwithstanding Reversal in Supreme Court.
    Where prior to the amendment of Sec. 1779 R. S. (G. C. 4316), an attorney prosecuting an action as a taxpayer was awarded judgment in the court below, he is entitled to an allowance which will cover all his costs in the case including a reasonable sum for services as attorney, notwithstanding that subsequent to the amendment of this statute error was prosecuted to the Supreme Court resulting in a reversal of the judgment below.
    [Syllabus by the court.]
    Error to Cincinnati superior court.

      Horstman & Horstman, for plaintiff in error.

      Coleman Avery, Asst, city solicitor, for defendant in error.
   JONES, E. H., J.

This is a proceeding in error to reverse an order made in the superior court in special term overruling the motion and amendment thereto of Theodore Horstman for an allowance for .his costs and counsel fees in what is commonly known as “the Eogers Law case.’’ The style of that case was “Theodore Horstman, on behalf of the city of Cincinnati, versus the Cincinnati Street Eailway Company, a corporation under the laws of Ohio. ’ ’ The suit was begun by Mr. Horstman to test the constitutionality of an act of the general assembly of the state of Ohio, 'the city solicitor having declined, upon request, to bring the action.

Sections 1778 and 1779 E. S. (G. C. 4314 and 4316), in force at the time the orginal action was commenced, read as follows:

“Section 1778. In case he fail upon the request of any taxpayer of the corporation to make the application provided for in the preceding action, it shall be lawful for such taxpayer to institute suit for such purpose in his own name, on behalf of the corporation; provided, that no such suit or proceeding shall be entertained by any court until such request shall have first been made in writing. (87 Ohio Law 123.)
“Section 1779. If the court hearing such case is satisfied that such taxpayer had good cause to believe that his allegations were well founded, or if the same is sufficient in law, it shall make such order as the equity and justice of the case demands; and in such case the taxpayer shall be allowed his costs, including a reasonable compensation to his attorney. (66 Ohio Law 175, See. 161.)”

On April 29, 1902, after the original action was begun and before the judgment was entered in the superior court this latter section was amended, the amendment providing in effect that before compensation may be allowed to the attorney for the taxpayer judgment must be finally ordered in favor of such taxpayer. The judgment in the superior court was in favor of the plaintiff, but upon a proceeding in error this judgment was reversed by the Supreme Court.

Upon an examination of the pleadings and record in the case, and owing to the fact that Mr. Horstman as taxpayer won the case in the superior court, we are satisfied that he is entitled, under See. 1779 R. S. (G. C. 4316), to be allowed all his costs in this case including a reasonable compensation to himself as attorney in the superior court. The proceeding in error not having been begun in the Supreme Court until after the amendment he would not be entitled to any compensation for his legal services in said court, the decision in that court having been against him. ■ As a part of his compensation to be allowed for his services in the superior court he is entitled to receive any money expended by him for printing briefs.

The superior court erred in overruling the motion of plaintiff in error for an allowance against the city for his costs and compensation to the extent above stated, and the judgment will be reversed and the case remanded to that court with instructions that it proceed to determine and adjudge what would be a reasonable compensation for plaintiff in error for his services as attorney in said cause in that,court, said amount, together with all costs in the superior court and Supreme Court including the costs of this proceeding in error, to be taxed against and paid by the city of Cincinnati.

Swing and Jones, JJ., concur.


text:
    DAMAGES — RAILWAYS—TRIAL.
    [Clermont (1st) Court of Appeals,
    May, 1913.]
    Swing, Jones and Jones, JJ.

      Pittsburgh, C. C. & St. L. Ry. v. William B. Applegate
    1. Judgment against Steam Railway for Fire Destruction of Building Adjoining Right of Way from Sparks of Locomotive, Sustained.
    A judgment against a steam railway company for the value of a building and contents, burned in the night time on land adjoining the company’s right of way, will not be set aside on the theory that the fire originated from sparks'from a chimney of the building, rather than from a passing locomotive, where the evidence warrants the conclusion that the sparks came from a locomotive and the jury have so found.

      2. Interrogatories Requiring Jury to Designate Particular Chimney, ora Building, or One of Three Locomotives; Sparks from Which CausecR Fire, Held Properly Refused.
    In an action for recovery of damages on account of a loss so occurring, it is not error to refuse to submit to the jury the second and fourth of the following interrogatories: “(1) Was. the fire caused by a spark from one of the chimneys on plaintiffs house? (2) If you answer ‘yes,’ state which chimney emitted the spark; (3) Was the fire caused by a spark from one of defendant’s locomotives? (4) If you answer ‘yes,’ state which of the three locomotives emitted the spark?”
    3. Judgment for Damages for Fire Loss, not Set Aside because Amount Recovered Exceeds Estimate by Plaintiff Shortly after Fire.
    The fact that the amount of the judgment exceeds the amount of the loss as stated by the plaintiff in a letter to the company written soon after the fire, does not afford ground for setting the judgment aside, where .evidence detailing the loss and given at the trial supports the finding of the jury as to the amount of loss sustained.
    Error to common pleas court.

      Maxwell & Ramsey, for plaintiff in error.

      Louis Hicks, W. A. Hicks, S. A. West and E. H. Speidel, for defendant in error.

      Affirmed, no op., Pittsburgh, C. C. & St. L. Ry. v. Applegate, 90 O. S. 000; 59 Bull. 182.

   JONES, E. H., J.

The action was brought by defendant in error to recover damages from plaintiff in error caused by burning of a building and stock of merchandise belonging to defendant in error and located in the village of Branch Hill. The petition alleges: that the fire was caused by sparks emitted from a locomotive engine, “operated by said defendant over and upon the said Little Miami railroad, which fell upon and set fire to the said dwelling house and storeroom of said plaintiff,” etc. Judgment was recovered below against the' railroad company for $4,100, and it is sought by this proceeding in error to reverse: said judgment.

By statute a railway company is held liable in this state for damages caused by fire originating upon land adjacent to its right of way, if such fire is ignited by sparks from an engine: operating upon such right of way, and it is under this statute that the petition in this case was drawn. To show that the fire was so caused evidence was offered, mainly from the engineers operating the engines passing Branch Hill on the night of the tire, showing that said engines — particularly two of them which passed just a short time before the fire was discovered — were emitting sparks in great numbers; that the wind carried said sparks in the direction of the Applegate dwelling house and storeroom. Other witnesses testified that the fire started on the side of the roof next to the railroad tracks, and it was also shown that there was no fire on said roof at the time said engines passed.

The defendant below made little or no effort to controvert this testimony, but attempted to and did show that there was a fire in the stove in said store up until 6 or 7 o’clock that evening or within four or five hours of the time that the fire broke out, and that there was a grate fire in the portion of the building occupied as a dwelling upon which fire fuel was placed as late as 7 o’clock on said evening. From this evidence the jury was asked to draw the deduction that a fire may have ignited from one of these sources; but they refused to do so, and must have been satisfied from the evidence that the fire originated from the sparks thrown by the engine. This was a question of fact which the jury alone was to determine.

We think, therefore, that the verdict is sustained by the evidence, and must decline to reverse the judgment on that ground as requested by plaintiff- in error. The authorities cited by counsel for the railway company, we think, do not support the contention that the verdict was not sustained by the evidence in this ease, as in those cases negligence was alleged and had to be proven. In this ease the only proof necessary to establish the liability of the defendant was that the fire originated from the sparks of the engine.

Another alleged error was the refusal of the court to submit to the jury interrogatories 2 and 4. The court agreed to submit interrogatories 1 and 3. to the jury, but upon his refusal to submit 2 and 4 the former were withdrawn and exceptions noted.

The interrogatories were as follows:

“1. Was the fire caused by a spark from one of the chimneys of plaintiff’s house?
“2. If you. answer ‘yes/ state which chimney emitted the-spark.
“3. Was the fire caused by a spark from one of defendant’s, locomotives ?
■‘4. If you state ‘yes/ state which of the three locomotives emitted the spark.”

The court properly refused to give the second and fourth interrogatories. It was not necessary for -the jury 'to find which chimney it was, as their affirmative answer to the first interrogatory would be decisive of the case and compel a verdict for the defendant. With reference to interrogatory No. 4 a like objection occurs to us: if the jury should answer No. 3 in the affirmative, the railroad company would be liable regardless of what the number of the particular engine was which emitted the spark, and as the evidence showed that at least two of the engines passed the property just a short time before the fire, throwing sparks in the direction of the house, it would obviously be impossible for the jury to tell which one it was. We think it was as unnecessary as it was impossible for them to answer this question, for the.reason that if they answered No.. 3 in the affirmative, that answer would conclusively fasten, liability on the defendant company.

It is also urged that this judgment should be set aside for' the reason that it exceeds in amount the loss as stated by Mr. Applegate in a letter written to the company shortly after the fire. In view of Mr. Applegate’s evidence given at the trial, detailing his loss, and the finding of the jury thereon, we do not feel that his letter written shortly after the fire should be given the weight or have the effect contended for by counsel.

The portion of the charge of the court objected to follows, in substance, the law as laid down by our Supreme Court in the ease of Lawrence Ry. v. Cobb, 35 Ohio St. 94.

Finding no error in the record, the judgment of the lower court should be affirmed.

Swing and Jones, JJ„ concur.


author: NORRIS, J.

text:
    JUDGMENTS — JUSTICE OF THE PEACE.
    [Harrison (7th) Court of Appeals,
    November 26, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    Wilber E. Simpson v. George Patton and James Carter.
    •Judgment Rendered by J. P., Appointed to Fill Vacancy until Successor is Elected and Qualified, after Expiration of Original Term and Election of Another not Qualifying, is That of De Facto J. P. Colore Officii — Constitutionality of Act for Filling Vacancy in Office of • J. P. not Questionable on Injunction against Enforcement of Judgement.
    -At the November election, 1907, one H. was duly elected a justice of the peace for a term of four years commencing January 1, 1908, and ending January 1, 1912. On February 3, 1910, H. '.resigned as such justice of the peace and pursuant to the provisions of Sec. 1714 G. C., the trustees of the township appointed ■one C.- justice of the peace to fill the vacancy, until his suc•cessor should be elected and qualified and the governor issued a ■commission to C. authorizing and empowering him to make, ■execute and discharge all. and singular the duties appertaining to such office until his successor was elected and qualified.
    At the November election, 1911, a successor was elected who did not qualify and C. continued to act as such justice of the peace after the expiration of the term of H.' whom he succeeded, until April, 1912, when he rendered the judgment complained of in this case.
    Held, first, that in rendering the judgment complained of, C. was a “de facto” justice of the peace under color of office. Second, that the constitutionality of Sec. 1714 G. C. cannot be. ■questioned in an. action to enjoin the enforcement of such judgment. '
    '[Syllabus by the court.]
    Rehearing on appeal.

      B. W. Rowland, for plaintiff.

      D. A. Hollingsivorth, for defendant:
    Cited and commented upon by the following authorities: S Am. & Eng. Enc. Law 103; Ostrander v. People, 29 Hun. (N. Y.) 513; Gregg v. Jamison, 55 Pa. St. 468; Mclnstry v. Tanner, 9 Johns. (N. Y.) 135; Morrison v. Sayre, 40 Hun. (N. Y.) 465; People v. White, 24 Wend. (N. Y). 520; St. Louis Co. Ct. v. Sparks, 10 Mo. 117; Barrow v. People, 8 Colo. 417 [8 Pac. Rep. 661] ; McCraw v. Williams, 33 Gratt (Ya.) 510; Carland
      v. Custer, 5 Mont. 579 [6 Pac. Rep. 24]; Morton v. Lee, 28 Kan. 286; Woodside v. Wagg, 71 Me. 207; Carli v. Rhener, 27 Minn. 292; [7 N. W. Rep. 139]'; State v. Williams, 5 Wis. 308 [68 Am. Dec. 65]; Cary v. State, 76 Ala. 78; Threadgill v. Carolina, 73 N. C. 178; State v. Gardner, 54 Ohio St. 24 [42 N. E. Rep. 999; 31 L. R. A. 660] ; Burt v. Railway, 31 Minn. 472 [18 N. W. Rep. .285] ; Morris V. People, 3 Denio (N. Y.) 381; State v. Choate, 11 Ohio 511; State v. Ailing, 12 Ohio 16; Taylor v. Shrine, 2 Treadw. 696; Case v. State, 5 Ind. 1; Creighton v. Piper, 14 Ind. 182; Plymouth v. Painter, 17 Conn. 585 [44 Am. Dec. 574]; Strang, Ex parte, 21 Ohio St. 610; Molitor v. State, 3 Circ. Dec., 445 (6 R. 263) ; LeGrange v. Ward, 11 Ohio 257, 261; Smith v. Lynch, ,29 Ohio St. 261; Bushnell v. Koon, 28 O. C. C. 367 (8 1ST. S. 163); affirmed, no op., Koon v. Bushnell, 71 Ohio St. 521.
   NORRIS, J.

The plaintiff in his petition seeks to enjoin the collection of a judgment recovered before a justice of the peace. He alleges in substance, in his second cause of action,.that in the year 1907, one Samuel J. Hughes was elected justice of the peace for Athens township, this county, for a term commencing January 1, 1908, and extending for a period of four years, which would be to January 1, 1912; that on February 3, 1910, Hughes resigned as such justice of the peace, and the trustees of the township appointed James Carter, defendant, as such justice, to fill the unexpired term of Mr. Hughes, who had resigned, and that thereafter the governor of the state commissioned Carter as such justice, under the law, for the unexpired term, and until his successor should be elected and qualified, as stated in the petition.

Now, at the November election, 1911, a successor was elected for the term commencing in January, 1912, but that successor did not qualify as such justice, and Carter continued to act as justice until the following April, and the suit in question was brought before him and tried during that month. He heard the case and rendered the judgment complained of, which would be some months after the expiration of the terms of Hughes, whom Carter was appointed to succeed, and to fill his unexpired term.

Now, it is claimed on the part of the plaintiff that the act, of Carter in rendering such judgment was entirely void, and it. raises the question as to whether or not he had a right to act as. such justice, or if he had not, whether his acts were that of a de facto officer acting under color of office so that the judgment, would be binding' upon the parties. Section 1714 Q-. C. providing^for appointment, reads as follows:

“If a vacancy occurs in the office of justice of the peace by death, removal, absence for six months, resignation, refusal to-serve, or otherwise, the trustees within ten days from receiving-notice thereof, by a majority vote, shall appoint a qualified resident of the township to fill such vacancy, who shall serve.until the next regular election for justice of the peace, and until his successor is elected and qualified. The trustees shall notify-the clerk' of the courts of such vacancy and the date when it., occurred. ’ ’

In pursuance of that section the trustees appointed James* Carter for a justice of the peace, and the governor of the state-on the fourth day of June issued a commission containing the* following:

“Enow ye, That whereas James.Carter of Harrison county,, has been duly appointed to the office of justice of the peace, in. and for Athens township, until his successor is elected and qualified,
“Therefore, By virtue of the authority invested in the-governor by the constitution, and in pursuance of the provision of the statutes, I do hereby commission him, the said James. Carter, to be justice of the peace, as aforesaid, authorizing and empowering him ■ to execute and discharge, all and singular, the duties appertaining to said office, and to enjoy all the privileges, and immunities thereof. ”,

Now, by the statute, and by the commission of the governor, clearly James Carter had the right to continue to act as justieeof the peace until his successor was elected and qualified, and it, is conceded that no successor had been elected and qualified at the time he rendered the judgment in question.

But it is said that that statute authorizing such appointment is in conflict with the provision of the constitution of the-state which limits the office of justice of the peace to four years, and that the term of Hughes, whom Carter was appointed to succeed, expired on the first day of January, 1912, at the end of' the term of four years; and it is, therefore, urged that this act. is in conflict with the constitution and that the question of the-constitutionality of the act can be raised in this case, and that is the question before this court — whether we may pass upon the-constitutionality of this act when the judgment is collaterally attacked.

Strang, Ex parte, 21 Ohio St. 610, bears upon the question,, propositions 1 and 2 of the syllabus:

“The acts of an officer de facto, when questioned collaterally, are as binding as those of an officer de jure.
“To constitute an office de facto of a legally existing office-it is not necessary that he should derive his appointment from one competent to invest him with a good title to the office. It: is sufficient if he derives his appointment from one havingcolorable authority to appoint; and an act of the general assembly,-though not warranted by the constitution, will give such authority. ’ ’

And this case had to do with the police judge in the city of Cincinnati, and in the opinion, after discussing the question,. Judge White says:

1 ‘ The direct question in this case is, whether the reputed orcolorable authority required to constitute an officer de facto can. be derived from an unconstitutional statute.
“The claim that it cannot, seems to be based on the idea that such authority can only emanate from a person or body-•legally competent to invest the office with a good title to the office. We do not understand the principle to be so limited. We-find no authorities maintaining such limitation while we find a number holding to the contrary. Fowler v. Bebec, 9 Mass. 231; Commonwealth v. Fowler, 10 Mass. 290.
“The true doctrine seems to be, that it is sufficient if the officer holds the office, under some power having color of authority to appoint;.and that a,statute, though it should be found repugnant to the constitution, will give such color. ’ ’

To the same effect is the case of State v. Gardner, 54 Ohio St. 24 [42 N. E. Rep. 999; 31 L. R. A. 660]:

“In a prosecution for offering a bribe to an officer, who is acting as such under a statute providing for the government of a municipal corporation, the defendant cannot question the con- ' stitutionality of such statute. ’ ’

There are two opinions in this case, and reading somewhat from the opinion of Judge Spear, and from the authorities cited, we find quoted from McKim v. Somers, 1 Pen. & W. (Pa.) 297, this language:

“If a person usurp an authority to which he has no title, or color óf title, his acts’ would be simply void, but a colorable title to an office can be examined only in a mode in which the officer is a party, and before the proper tribunal. ’ ’

That was a case in which .the officer was not a party and where his right to the office was involved, and to the same effect:

“People v. Bangs, 24 Ill. 184: ‘Though a judge elected under a law not authorized by the constitution, shall be ousted because he is not an officer de jure, yet his acts colore officii will be valid.’ ”

And, quoting from People v. Weber, 86 Ill. 283:

“The title of a de facto officer cannot be inquired into in a collateral way between third parties, but it may be inquired into where he is suing in his own right as an officer. ’ ’

To the same effect is Leach v. People, 122 Ill. 420 [12 N. E. Rep. 726]. Again quoting from the opinion:

“Brown v. O’Connell, 36 Conn. 432, was an action of debt on a recognizance given in the police court of Hartford. The constitution provided that all judicial officers should be appointed by the general assembly. That body, by a statute, undertook to authorize the appointment of a judge of the police court by common council. The supreme court held' that the appointment was void, but that the appointee ‘was a judge de facto’ and that a recognizance entered into before him in the police court for the appearance of a prisoner was valid and binding. ’ ’

Then quoting from the work of Yan Yleet, Collat. Attack page 33, we find the following:

“If it is necessary, in order to guard the rights of the public, to hold the acts of an actual although unlawful incumbent of a judicial office valid, as being done by an officer de facto, then a fortiori is it necessary to hold an actual judicial tribunal, erected under the forms of law, sustained by the power of the state, and settling rights and titles, a tribunal de facto.”

Then again:

“The de facto character of the officer is not impaired because he was appointed by virtue of a void statute. Thus, a judge appointed by the governor, or a city council, or transferred to another district; or. a probate clerk, or district attorney, appointed by authority of an unconstitutional statute; and county officers elected in a new county before the law organizing it could take effect, are all officers de facto.”

Now, how stands this case? By the statute of the state, duly passed, the trustees were clothed with authority to appoint a justice of the peace to succeed Hughes, resigned, for the unexpired term, and until his successor was elected and qualified. In pursuance of such appointment and the governor’s commission Carter continued to act as justice of the peace, affecting the rights of litigants brought before him. He had the color of the statute and thé commission of the chief executive of the state for his authority to act as such justice.

Now, it seems to us that he was acting under color of office and was a de facto justice of the peace at the time he rendered this judgment. We are not unmindful of the decision in the ease of Bushnell v. Koon, 28 O. C. C. 367 (8 N. S. 163), holding that acts of a justice of the peace after his term had expired was absolutely void. But we think that is clearly distinguishable from this ease; he had absolutely no color of office; he was not appointed for such a period; he was commissioned for a period of four years, and his term expiring at a certain date, and after that date he assumed to continue to act as such justice of the peace. We think this case is not like that.

It follows that a decree will be entered in this ease finding that the act of the justice was the act of a de facto magistrate,, and the judgment will be sustained and the case dismissed.

Metcalfe and Pollock, jj., concur.