text:
    EMPTYING SEWER. IN STREAM ON PRIVATE LAND.
    [Circuit Court of Lucas County.]
    Alice M. Whitney et al v. The City of Toledo et al.
    Decided, October 18, 1906.

      Sewers—Construction of, in Roacl as a Drain for Surface Water—Pollution of Stream on Private Land—Power of Public Authorities—■ Rights of Injured Private Owner—Appropriation—Injunction— Costs.

    1. The use of a public road for the purpose of carrying a sewer beyond the limits of a municipality to a suitable point for discharging its contents into a water course, can not be interfered with by an adjacent property owner, where the use of the sewer is restricted to surface or storm water, and its construction has been duly authorized by the city council with the approval of the state board of health and the county commissioners,
    2. But the use of such a sewer for sewage purposes, even in a slight degree, would be in derogation of the rights of an abutting land owner whose property would be traversed by the stream into which the sewer empties; and unless the right has been acquired by appropriation, such use may be enjoined by a land owner thus situated without waiting until the threatened injury has resulted in material damage.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    Sewer district No. 27 of the city of Toledo is located upon the west part of the city. A main or front sewer has been projected by the city, extending through said district, for a distance of something over a mile along certain streets and alleys, coming out upon Monroe street, within a few hundred feet of Ottawa creek; thence traversing Monroe street to the creek where it is designed to empty. Breymann & O’Neill are the contractors who are to build this sewer.
    Within about 150 feet, or thereabouts, of where the sewer empties, it crosses the city line, and for the remainder of the distance, traverses or continues On Monroe street, which is known, I believe, as the Monroe road outside of the boundaries of the municipality.

      The plaintiffs own a tract of eighty acres of land, joining the west line of the city, lying upon both sides of the Monroe road at this' point, and upon both sides of Ottawa river, sometimes called Ten Mile creek.
    ■ This is to be a covered sewer of brick construction. For the distance between the city line and the mouth of the sewer, the sewer will be upon the northerly side of the road.
    Plaintiff’s land is used and occupied for farming, grazing and dairy purposes. The cattle upon the place—and the same is true of adjoining tracts of land-—are used to frequent this creek and drink from its waters; and the waters at this point appear to us to be fit for such use. The evidence tends to show that there are sewers emptying into the creek lower down; but none so far up the creek as this proposed sewer.
    Plaintiffs seek to enjoin the construction of this sewer, on the ground that its use will pollute the Avaters of the stream; and upon the further ground that even if they do not so pollute the waters of the stream, this use of the highway is unauthorized and may not be made, unless the right to thus use it shall have been acquired by appropriation proceedings.
    There seems to us to be no question but that the city had a right to construct the sewer and to carry it beyond the city limits. But this, of course, leaves unsettled the right of the city as. against the private rights of the proprietors of these lands. In other words, the city had the authority to thus proceed, provided it acquires the rights of private proprietors; and it seems to us clear, from the evidence, that the sewer is needed; that it is a public necessity; that the board of health of the state has authorized its construction, and the emptying of it into this creek at this point; and that the county commisioners, in so far as they have authority over the public road, outside of the city limits, have also consented to that use of the public road.
    But in so far as the construction of the sewer may infringe upon the private rights of -the plaintiffs, of course, the authority exercised by the council, or received from the state board of health, or from the county commissioners, can not affect such private right.

      Now, it appears to us, from the evidence, that though this is designed for storm water, or surface water and sewage as well, in all probability it will be some time before the sewage emptying into this sewer will be of a quantity to materially 'affect, injuriously, the water in the creek; and yet, should it affect it injuriously to any extent, we think that to that extent the plaintiffs have the right to .complain, and to that extent it would be laying an additional burden upon the plaintiffs’ land, in addition to that of the public easement in the road for road purposes.
    The rights of the contractors here can rise no higher than those of the city. But we are of the opinion that the rights of the city, and of the contractors as well, to construct the sewer and to use it for the drainage of surface or storm water are clear, under the law. Not so, however, of the right to use it for sewage purposes.
    Without expressing any opinion as to what the public authorities might do in the way of using a public thoroughfare or highway, or the channel of a stream for the location of a sewer to carry water away from private land, we think that the right to so use the same for the purpose of draining roads, streets, highways and the adjacent territory necessary to the preservation or improvement of the public highways, is entirely clear under the law; and that this right, in this instance, extends, not only to the drainage of the Monroe road and Monroe .street, but to the drainage of other roads and streets in that locality, that may be drained through and over Monroe street and the Monroe road.
    Though the proprietors of these lands, who originally dedicated the part' which is now called the Monroe road, may not have actuálly contemplated the filling up of this adjacent territory with houses and dwellings by the growth of-the city, yet we think, in law, that they must be held to have contemplated that, and that no matter how extensive or how numerous the streets, roads and highways laid out in that vicinity, either within the corporate limits or outside the corporate limits, the part of this territory in question known as the Monroe road, lying between the city limits and the creek, has become subservient to the right and easement of the public in the drainage of all such public ways. And in so far as this sewer may be designed for such use, we think it is an entirely lawful use of the highway.
    It does not appear to us, from the testimony, that there will be in the construction of this sewer any injury to the plaintiff’s premises in the way of hindering the access thereto, or in any other way. It seems that the construction will be rather an improrau.ent than otherwise. Nor does it appear that by the casting of additional fresh water upon the premises at the outlet of this sewer, there will be any injury to the plaintiff’s premises. Indeed, it is not claimed that it would be by the plaintiffs or -their counsel. That would be rather a benefit than otherwise. The creek at this point in dry seasons becomes nearly dry; at some times the current of the stream stops entirely; and an additional flow of fresh water, and pure water would be a benefit to the plaintiff’s premises than otherwise, so that so long as it is used as a drain for surface water or clear water, or such water as naturally flows from the streets and highways (which, of course, is not -entirely pure water, but water of an entirely different character from sewage), we think it may be lawfully so used.
    But we are of the opinion that it may not be lawfully used for sewage purposes until the right to so use it has been acquired by appropriation proceedings, and that the emptying of sewage should be forbidden without waiting for any material damage to the plaintiff’s premises. It would be impracticable, and we think an infringement on the plaintiff’s rights, to require them to submit to the use of this sewer for sewage purposes in ever so small a degree, until the right to thus use it had been acquired. Under the nineteenth section of the Bill of Rights, we think that such use of the plaintiff’s premises in ever so small a degree would be a taking of their property, and this taking may not be done until the right is first acquired and paid for.
    . The decree of the court will be that the petition will be dismissed as to the contractors, Breymann & O’Neill. They will be permitted to construct this sewer. The city will be permitted to use it for the drainage of the streets and highways which it traverses and the streets and highways within the district. But the city will not be permitted to connect any private residences to this sewer, or any bulidings, or any places that would empty sewage into it until it has acquired the right by appropriation proceedings.
    We think that the plaintiffs have not proceeded prematurely here; but that they were quite right in proceeding to enjoin this threatened injury of their premises; and it is apparent from the attitude of the city here that the citjr was going ahead to make this, that we regard as an unlawful use of the premises, without first appropriating the right therefor. The costs of the proceeding will be adjudged against the city.
    No costs will be adjudged against Breymann & 0‘Neill. The whole costs will be adjudged against the city. There have been no costs of any consequence made by adding the contractors as parties, and we think for the sake of conformity they should have been and were properly made parties defendants.

      E. M. Bea/rd, for plaintiffs.

      George N. Fell, for the City of Toledo.

      W. H. McClellan, for Breymann & O’Neill.


source: Caselaw Access Project

license: Public Domain

text:
    SCIENTER. IN BEAL LAW PROSECUTIONS.
    [Circuit Court of Cuyahoga County.]
    Minnie Page v. The State of Ohio.
    Decided, October 29, 1906.

      Liquor Laws—Prosecution Under Beal Law—Averment of Scienter— Bills of Exceptions—Deficient as to Testimony of One Witness—But Containing “Substantial” Points of Testimony.

    1. An affidavit charging a person with a violation of the Beal law (Revised Statutes, 4364-20), in that he kept a place where intoxicating liquors were sold, purchased or given away, need not aver that such place was “knowingly” kept.
    2. A bill of exceptions certifying that it contains all of the evidence except that presented on one day of the trial, and all the “substantial” points presented on that, day, may not be reviewer] as to the weight of the evidence.

      Winch, J.; Marvin, J., and Henry, J., concur.
    This is a proceeding in error, brought to reverse a judgment of the common pleas court, affirming a conviction of plaintiff in error, before a police justice, on an affidavit charging her with keeping a place where intoxicating liquors were sold, purchased and given away, contrary to the provisions of the Beal law.
    It is said that the affidavit is defective in that it does not state that the accused “knowingly” kept said place.
    We hold that an averment of scienter is not necessary in an affidavit or indictment charging violation of the Beal law, so-called.
    A full consideration of the authorities on this subject will be found in the case of 8taie v. Fromer, 7 N. P., 172, decided by Judge Wildman, then Common Pleas Judge of Huron county, now one of the judges of the Circuit Court of Ohio, Sixth Circuit.
    It is also said that the judgment is not. sustained by the evidence, but this proposition we are unable to review, for the bill of exceptions does not contain all the evidence. This is no fault of counsel for plaintiff in error. It appears that trial was begun on August 3, 1906, the accused having no counsel present, After some evidence had been offered, the trial was adjourned to August 10, with consent of defendant. On the last named day the defendant was present with her counsel, who made an effort to bring out all the evidence that had been offered at the previous hearing, by a re-examination of the only witness who had then testified; at the conclusion of this effort, the court said:
    “You have substantially proved everything that he testified to before in this case in chief; may not be in the exact language, but the substantial points of that evidence you have in. ’ ’
    The certificate to the bill of exceptions recites:
    “This bill of exceptions contains all of the substantial points of the testimony of the witness, P. P. Merrill, taken on August 3, 1906, and all of the evidence offered by' either party on August 10, 1906, in the trial of this cause.”
    We are compelled to say that the certificate does not authorize us to weigh the evidence contained in the bill of exceptions presented to us. It is not sufficient that we have before us what the trial judge considers all the “substantial points of the testimony,” but we should have all the evidence. The reviewing court might not agree with the trial judge as to what were the .real substantial points of the testimony. The certificate in this case substitutes the judgment of the trial judge on that point for the judgment of this court, leaving us unable to pass upon the weight of the evidence with any satisfaction -to ourselves or certainty of ar-. riving at a correct conclusion.
    The plaintiff in error was content to rest this matter in the judgment of the trial judge and there it must remain and the judgment must be affirmed.

      D. M. Bacler, for plaintiff in error.

      A. V. Taylor, for defendant in error.


author: By The Court.

text:
    RECOVERY FOR SERVICES TO HAVE BEEN GIVEN IN PAYMENT FOR REAL ESTATE.
    [Circuit Court of Knox County.]
    Martin J. Murphy v. Daniel F. Adams, Administrator.
    Decided, October 12, 1906.

      Contract for Sale of Beal Estate—Not in Writing—Services to be Credited on Purchase Price—Contract Abandoned—Action for Value of the Services.

    A contract for the performance of services, a part of the agreed value thereof to be credited on the purchase price of real estate thereafter to be conveyed, although for the sale of real estate and not in writing, furnishes a basis for the value of the services rendered, provided the party agreeing to perform the work did not abandon it or fail to go forward with it through his own fault.
   By The Court.

The record in this case discloses that the work performed by defendant in error’s intestate was performed by him under and in pursuance of a contract, by the terms of which he was to receive a credit of one dollar per day upon the purchase price of a certain dwelling-house then to be erected by the plaintiff in error for said defendant in error’s intestate, and which was to be sold and conveyed to him for the sum of $1,050. This contract was verbal, and by reason of the statute requiring a contract for the sale of real estate to be in writing, could not be enforced in the courts of this state. But, notwithstanding that fact, this court is clearly of the opinion that if the plaintiff in error abandoned that contract and refused to go forward with the same, the defendant in error could recover for the estate he represents, the value of the services rendered by his intestate in pursuance of that contract; but if, on the other hand, the defendant in error’s intestate failed and refused to go forward with that work and abandoned the same through his own fault and of his own motion, then we do not think he could recover. There is practically no evidence in this record disclosing which of these parties repudiated the contract. The evidence is sufficient as to the services and the value thereof, but it is not sufficient to sustain this verdict upon the theory that the plaintiff in error abandoned the contract, and for that reason and that reason only, it is against the manifset weight of the evidence and is not sustained thereby, and the case is reversed and remanded for a new trial.

L. B. Houck and W. N. Eoons, for plaintiff in error.

C. V. Troti and W. A. Iiosack, for defendant in error.

Exceptions of defendant in error noted.


text:
    IMPLIED REVOCATION AS TO AFTER.WARD ACQUIRED PROPERTY DEVISED BY WILL.
    [Circuit Court of Jackson County.]
    M. T. Ridenour v. Mary E. Callahan et al.
    Decided, June 7, 1906,

      Wills—When a Will Speaks—Implied Revocation—Revocation Pro • Tanto—The Wills Act—Sections 5956 and 5957—Pleading■—Par-tition.

    1. The doctrine of implied revocation that existed at common law prior to the English Wills Act of 1837, does not obtain in Ohio as to after-acquired property devised by will; or to devised specific property conveyed by a testator after the execution of the will and reconveyed to him before his death.
    2. Where It made a will in 1900, devising specific real estate, and thereafter conveyed such real estate to another, and later and before the death of R the same was reconveyed to the testatrix, said devise passes under the original will and is not revoked.
    3. Under the facts stated in the second proposition of the syllabus, said will is construed, as to such devise, to speak from the death of the testatrix.
    Jones, J. (orally); Walters, J., concurs; Cherrington, J., dissents.
    This was an action in partition begun in the court of common pleas of this county.
    Several of the defendants filed demurrers, alleging that the petition did not state a cause of action; the court of common pleas sustained the demurrers, and proceedings in error have been instituted in this court to reverse the judgment of the court of common pleas.
    The petition in the case is filed by one of the children of Eliza B. Ridenour asking for partition. He has made parties defendant in the case, the heirs of Eliza B. Ridenour, together with the guardian of one of the imbecile children, and the administrator with the will aimexpd of Rlifii] B, Ridenour, jyho js niño n ¡¡Ml of Ho tenate

      The plaintiff sets forth the various interests of these heirs or children, of whom there were five, and claims that he has a one-fifth interest as tenant in common in the two tracts of land described in the petition. The petition alleges that on November 20, 1900, Eliza B. Ridenour, the testatrix, being then seized of the real estate described, executed a will, in which she provided that her imbecile child, Charles E., was to have a home and care, etc., and that her daughter, Mary, was to furnish this home, care and provision for her imbecile brother, and for that she was to have the property described in the petition for life. If Charles survived Mary, the plaintiff in error here, who is one of the testatrix’ children, was to look after Charles’ welfare.
    Upon the death of both Charles and Mary, all the balance of the property remaining unconsumed was devised to her other three children, M. T. Ridenour, James Ridenour and W. D. Ridenour.
    On June 3, 1904, the testatrix executed a deed to Mary E. Callahan, her daughter, for the first tract named in the petition, which I will call the “Bridge street” property. This deed was executed for the nominal consideration of one dollar, and the further consideration of the care of herself and Charles for their respective lives, and to pay their funeral expenses, taxes, and certain other debts that she mentioned in the deed.
    And on the same day she also executed a deed to one of her sons, James S. Ridenour, for the second tract, or the farm property, for the nominal consideration of one dollar, and love and affection, and to make him even with the balance of the children; she, however, reserving to herself for life the profits out of this farm property after the payment of repairs and taxes thereon.
    The petition further alleges that on June 25, 1904, for the purpose of having all of this property equally divided among them, that all the children except the imbecile, entered into a written agreement that these two tracts of property should be reconveyed to the testatrix, and that the expenses for the care of the mother, the testatrix, and of Charles, the imbecile, and William D., should be borne equally by all of the five children.

      The petition alleges that while the testatrix was a party to the written agreement she did not sign it.
    The property thereupon was reconveyed by the two children, Mary and James S., and the petition alleges the testatrix accepted this conveyance in pursuance of the agreement. On September 27, 1904, the testatrix died.
    The contention in this ease, which counsel upon both sides ( have presented, is this: After a testator has devised specific property to another, and between the date of the execution of the will and the time of the testator’s death has conveyed the t specific property, and later has had the property reconveyed to i him, whether the aforesaid devise will pass the property under i the original will, or whether by reason of that conveyance by [ the testator there has been an implied revocation of the will as to that property. '
    It will be observed that the will was executed in November, 1900. She made the deeds to the property in 1904, and before her death on September 27, 1904, the property that she so deeded after the execution of her will, was reconveyed to the testatrix.
    Under the old English law, at least prior to July 3, 1837, when's the Wills Statute was passed, there was no question but that if, after the execution of a will by a testator, he devised any of that property, a conveyance would abrogate the will pro tanto so far as that property was concerned, and a reconveyance would not'i re-invest him with the property so he could devise it by will ^ unless he would change the will.
    The question is whether that applies now—whether the doc-t trine of implied revocation, as it existed prior to 1837, exists! at this date in Ohio.
    Now, in Ohio, a will can not be revoked orally. We have a statute which provides for the manner in which a will can be revoked, and it can only be revoked in the manner provided by Section 5953, and that is by the testator tearing, canceling, obliterating or destroying the same, or by a new will or codicil executed in writing under the same solemnities as the old will.
    So under that section, that is the only method of revoking a will in this state, except it may still be revoked under the doctrine of implied revocation.

      The latter part of Section 5953 provides, in reference to the method in which wills may be revoked, as follows: “But nothing herein contained shall prevent the revocation implied by law, from subsequent changes in the condition or circumstances of the testator. ’ ’
    So that we still have in Ohio the doctrine of implied revocation.
    Then the question is, has this will been revoked pro tanto as to this property by a conveyance thereof by the testatrix during her lifetime?
    There is no question but that at the time the case of Brush v. Brush was decided in the 11 0., page 287, this would have been an implied revocation, and since our present will statutes in Ohio were not in force m 1842, when that case was decided, that the testatrix would not be re-invested with the property so as to make this property pass under the will.
    The position of plaintiff in error perhaps is better stated in Page on Wills, Section 278, and counsel can see why, in the early years of the English laws, the doctrine of implied-revocation applied with so much strictness as it did then. But prior to 1837, as I have stated, the will took effect at the date of its execution, and if a testator during that time devised property, no after-acquired property, whether such was the same property or other property, would pass by that will. It was only property that he had possession of at the date of the execution of the will and of which he had continuous seizin at the time of his- death that passed under the will at that period.
    “This rule at common law rested upon the principle that testator by a devise of his property could dispose only of the real property then owned by him; while after-acquired property could not be devised, but passed to the heirs. As we have seen, this was the result of the common law theories of seizin. Hence, if testator after making his will altered his estate in such a way as to divest himself of the seizin, even for a short time, his new estate in the property was looked upon as an afteracquirecL estate, and could not pass by will. To make a valid devise, testator had to be seized at his death of the same estate that-lie was seized of at the date of the will,” F^tge on Wills, ^edition 8TB, ‘ ‘ ' '.......■

      Now then, the doctrine of implied revocation of the will did obtain' on that day. What does it mean ? Some of the authorities call it “implied revocation”; others “presumed revocation.” That is, there is merely a‘presumed revocation, because if after the time the will took effect, the property were conveyed, it would leave nothing for the will to operate upon. It was not a revocation arising from any expressed intention of the testator, but was a revocation arising under the legal maxim, “Ex necessitate rei.”

    But how has it been since the enactment of the Victorian Statute on July 3, 1837, which are substantially in force in nearly all the American states?
    Section 23 of the English Wills act referred to, similar in effect to Section 5956, reads as follows:
    “And be it further enacted, That no eenvevance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an, act by which such will'shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of it by will at the time of his death.”

    Then it changes the old common law as to when the will shall speak in the next Section 24:
    “Be it further enacted, That every will shall be construed,] with reference to the real estate comprised in it, to speak and] take effect as if it had been executed immediately before the\ death of the testator, unless a contrary intention shall appear by the will.”
    Now 'that is the doctrine in Ohio, and in fact found substantially in Section 5969 of the Revised Statutes, but not in the exact language of Section 24 of the Victorian Statutes.
    Section 5969 provides that “property acquired by the tes-1! tator after the making of his will, shall pass thereby, in like manner, as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.”
    This section means nothing more or less than the will must be construed to speak from the death of the testator, for the statute here passes property acquired after the will’s execution,

      Now, in determining whether or not the old doctrine (the common law doctrine of implied revocation of the will) applies to the facts in this case, we must take into consideration these two sections of the statutes of Ohio. The main question is: What is the law of Ohio as to when a will speaks? But before I come to that', I want to refer to the reason why the old rule was changed, and I will read very briefly from various authorities.
    Page on Wills, 279, refers to the old doctrine:
    “The subject of revocation by alteration of estate is practically obsolete at modern law. Nearly all the jurisdictions in which common law is in force have passed statutes to the effect that no alteration in the estate of testator in property devised or bequeathed shall effect a revocation of his will as to such, unless he is wholly divested of his interest therein, or unless in the instrument by which- such alteration is made he declares his intention that it shall operate as a revocation of such previous devise.”
    2 Woerner on the American Law of Administration, Section 886, page 966 (bottom paging) :
    “Under a technical rule of the common law, no real estate could pass by a will of which the testator was not the owner at the time of its execution. This rule has been severely criticised, as calculated to - mislead and defeat the intention of testators, and is now 'abolished by statute in England, as well as in most, if not all, of the states of the Union, providing, substantially, that wills shall be construed, in respect of both real and personal estate, as if executed immediately before the testator’s death, or directing real estate acquired by the testator after the date of the will to pass thereby, if such appear to have been intended.”
    And the authorities cited embrace Ohio as one of the American states which 'has provided for such a statute, and that section is 5969.
    Beach on Wills perhaps has a better statement of this doctoáne than any of the authorities cited.
    Section 67 of Beach on Wills (the Pony Edition) is asf^H lows: * •

    “Under the old law it was essential to the validity of a devis^ of freehold lands that the testator should be seized thereof at' the making of the will, and that he should continue so seized without interruption until- his decease. If, therefore, a testator, subsequently to his will, by deed aliened lands which he had disposed of by such will, and afterwards acquired a new freehold estate in the same lands, such newly acquired estate did not pass by the devise, which was necessarily void. And the devise of a freehold lease, which was renewed by the testator after making his will, could not take effect under it. ’ ’
    Why? Because a devise made after the execution of the will must have reference to property only that he was seized of at the date of his will, and if he acquired property under this rule after that, the devise would not pass, for the reason he did not have it at the date of the execution. The same authority goes on to say:
    “But the revocation of devises by an alteration of estate, is placed on an entirely new footing by the statute of I Victoria, eh. 26, which provides:
    “ ‘No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances; and that no conveyance of real or personal property previously devised, shall a'ct as a revocation as to the estate or interest therein, which the testator may have the right to dispose of by will at the time of his death. ’ In several of the united American states, similar statutes are to be found, providing in substance that no conveyance or alteration of estate which does not wholly divest the testator of all interest in'the property mentioned in the will, shall prevent the operation of the instrument with respect to that which the testator may have power to dispose of at the time of his death. Such provisions are contained in the statutes of the Virginias, Kentucky, Ohio, ’ ’ etc.
    So, also, is to the same effect, 1 Jarman on Wills, Sections 147-162.
    We can very easily see how and why these various textbooks seem to differ, for the reason that under the old law only eh real estate passed as the,testator had when he executed e will.
    Now under our Wills act, whatever real estate the testator as, whether at the execution of his will or at his death, whether such be after-acquired property, or, as in this case, property he had conveyed, and later became re-invested with as after-acquired property, since the will speaks from the date of the testator’s death, such property passes thereunder, and that is the reason why the old rule has been modified.
    In the 30th Volume of the American & English Encyclopedia of Law (2d Edition), page 654, that reason is set forth:
    “It was formerly essential to the validity of a devise of freehold lands that the testator should be seized thereof at the making of the will, and that he should continue so seized without interruption until his decease. If, therefore, the testator aliened lands which he had previously devised, but afterwards acquired a new freehold estate in the lands, such newly acquired estate did not pass by the devise, which was necessarily void. ’ ’
    The text plants the proposition upon the fact that it was necessarily so because he had to be invested with the title at the time of the will. Then the author says:
    “By virtue'of statutes, however, which now exist generally and which provide in substance that a will shall be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears therein, a conveyance by the testator of land which has been devised by him does not revoke such devise if subsequently, and before his death, the title to the land conveyed revests in him.”

    It cites a number of authorities, and one of them is the case of Woolery v. Woolery, 48 Ind., 523, where Jarman on Wills (star paging), 147, states the case as follows:
    “It was held in Indiana where real estate was owned by the testator at the time of making the will, and was some years later, conveyed by the testator, and one year after such conveyance by him, reconveyed to the testator, that the will was not therefore revoked by implication, but that its operation was restored as to this real estate.”
    Beach, also, on pages 152 and 155, distinguishes and applies the doctrine to the laws as they now exist and as they existed prior to the enactment of the Victorian Statute:
    ' “The corresponding English statute regulating this matter enacts that every will ‘shall be construed with reference to thereat and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.’ The effect of this statute and of those of the American statutes which follows its phraseology, is to raise the presumption of an intention to pass the after-acquired estate, unless the contrary be shown, throwing the burden of proving the contrary upon the heirs.”
    And, on page 155, the author says:
    “At common law, a specific bequest was supposed to refer to the property answering the description at the date of the will. Hence, subsequent changes in property so given operated as an ademption thereof. But under the modern statutes by which wills are construed as to the real and personal estate, to speak from the death of the testator, a bequest of a leasehold is not adeemed by the expiration and renewal of the lease; and a subsequently acquired fee in the same property, although described as held for a term of years, passes under the bequest. ’ ’
    The reason for the rule is given as I have stated—that it depends entirely upon when the will speaks.
    The 13th Americáh & English Encyclopedia of Law (First Edition), pages 101 and 102 and the note thereunder, I think, treats briefly and well the question I am now discussing, and much better than the second edition does.
    The text is as follows:
    “Where a testator in his lifetime makes a conveyance of land specifically devised, the devise is thereby adeemed or revoked. If the whole estate is conveyed, the ademption is complete; if only part, the devise may still take effect on the residue. At common law, a devise so adeemed was not revived by reconveyance; whether statutes providing that the will shall speak from the testator’s death would in themselves have that effect is, at least, doubtful; but under such act taken in connection with acts providing that no alteration of estate shall work a revocation, the lands reeonveyed pass under the original description. ’ ’
    And here it cites in the note, among others, Brown v. Brown, 16 Barb. (N. Y.), 569, where it held that lands reeonveyed were held to pass under the original description.
    We have not before us the New York or Indiana wills statutes, but I assume they are substantially very similar to the Victorian Statute as those of Ohio are.

      Reading the statutes of Ohio in that connection here (and when these statutes—5956 and 5957—speak of alteration or inconsistencies they refer to such alteration or inconsistencies in an instrument or conveyances that may exist at the death of the testator, not as at common law as they may exist at the time of the execution of the will; and “at the death of the testator” might be read into these statutes for the purpose of this construction), we have the application of the foregoing text.
    Section 5956 provides that:
    “A conveyance, settlement, deed or other act of the testator, by which his estate or interest in property previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property, but-such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs. ’ ’
    “Shall pass”—when? At the time of the death of the testator.
    In other words, under this statute, all that' the jurist must necessarily do is to take the conveyance that is outstanding and say whether at that time (the testator’s death) there is an alteration of the estate.
    And the next section provides for revocation in certain contingencies when the instrument shall be inconsistent with the devise in the will.
    When inconsistent? At some time before the will takes effect? That would be reductio ad abstirdum.

    Reading this section:
    “But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.”
    There is no instrument in this case by which it can be compared. It has lost its vitality. The estate provided therein has gone back to the testatrix, and this statute must be contrued so that this inconsistency be shown at the time the will speaks.

      Section 5969 provides that after-acquired estate shall pass l under the will as if held at the time of its execution.
    In other words, it provides that the will speaks from the date of the testator’s death.
    These will statutes of Ohio entirely change the law of implied revocation of devises as it existed prior to 1837.
    Think of it! If the law prior to 1837 should obtain to-day and the testator should make a will, and between that time and his death he should deed a portion of his property to some person for a period of forty-nine years, it would be impossible for the testator to obtain a reconveyance of that property to pass it under the description of the will.
    He would have to make a new will to govern: one would have to make a new will every time he acquired property that he had previously owned and devised.
    That isn’t the intention, we think, of these will statutes as they have existed from 1837 up to the present time.
    It seems to us that there can be no doubt that the revocation that is complained of by counsel for the plaintiff in error does not apply to a case of this kind.
    . A quaere might' arise whether, on the pleadings, the judgment should not be affirmed for the reason that the plaintiff’s amended petition does not definitely state that the testatrix was seized of the real estate in question when the luiib ivas executed.

    As the main question is a new one and of considerable im- jj portanee in this state, and was also argued very fully by counsel, ^ we have deemed it best to decide the case on the lines stated. \

    The result of the judgment will be that the judgment will have to be affirmed and the cause remanded.
    Exceptions will be noted in behalf of plaintiff in error.

      J. 0. Yates, for plaintiff in error.

      E. C. Pow.ell, for Mary Callahan and Mary Callahan, guardian.

      8. F. White and E. L. Grimes, for J. S. Ridenour, administrator with the will annexed of Eliza B. Ridenour, deceased.

      John Harper, for Frank Ridenour.


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    SHOOTING AN ARRESTING OFFICER ARMED WITH A WARRANT OF DOUBTFUL LEGALITY.
    [Circuit Court of Knox County.]
    Frank E. Coile, alias Frank E. Hildreth, v. The State of Ohio.
    Decided, October 12, 1906.

      Criminal Law—Homicide—Arresting Officer Killed by Accused—Shooting Premeditated—Defense of Illegality of Warrant—Charge of Court—Weight of Evidence.

    In a prosecution for the killing of an arresting officer, and the accused who killed such officer in resisting arrest interposes the defense that the warrant for the arrest was illegal, the consideration which should be given to such a defense depends upon the circumstances surrounding both the officer and the accused at the time of the homicide; and where the killing had been premeditated by the accused for some hours, and the officer was fully advised as to the crime, the same being a felony, and would have been authorized in making the arrest without a warrant, the question of the legality of the warrant under which the arrest was made is of no importance and does not excuse the. willful and premeditated killing of the officer.
   By The Court.

This proceeding in error is brought to reverse a judgment of conviction of plaintiff in error for manslaughter, rend’ered in a cause wherein the state prosecuted said plaintiff in error upon an indictment charging murder in the first degree. The plaintiff in error claims that the verdict of the jury is against the weight of the evidence in one particular only, and waives all other question touching said assignments of error as to the weight of the evidence; that is to say, that the evidence fails to show beyond all reasonable doubt that plaintiff in error shot deceased.

Without attempting to recite any evidence in this record, it is sufficient to say that, to the mind of this court, the evidence offered by the state was overwhelming upon this proposition. True, a captious doubt might be raised upon the theory advanced by counsel for plaintiff in error, that the bullet found in the body of tbe victim did not correspond in every detail with the other bullets found in the possession of the defendant; but there are many reasons why this should not now correspond with such bullets, and there is no reason whatever why he should not have had a different one than any of the others found in his possession. The evidence, to our mind, is overwhelming upon this point, and shows conclusively to us beyond all reasonable doubt that plaintiff in error shot James C. Shellenbarger, and the verdict is, therefore, sustained by sufficient evidence.

The only other question raised in this case is as to the charge of the court touching the legality of the warrant issued by the mayor to Sheriff Shellenbarger. We think that all the questions raised touching the legality of this warrant are of little or no importance now, because the plaintiff in error was only convicted of manslaughter. If he had been convicted of murder in the first degree, perhaps the legality of the warrant might become of serious importance, but this record shows the fact that this plaintiff in error armed himself to resist any arrest, and for nearly a whole day premeditated the killing of any officer armed with any warrant that might come to arrest him, and the theory that he at the time doubted the legality of this warrant and for that reason offered resistance is not credible. We think that plaintiff in error did not testify to the truth in that behalf, and that his testimony touching that question is contradicted by every other circumstance in the case as well as by his own evidence touching his conduct on that day.

Upon the question of civil liability of an officer for false imprisonment, the legality of the warrant is of prime importance, but as a defense to the killing of an officer acting in good faith and armed with what upon its face appears to be a legal warrant, although in fact it proves to be defective in some particular, or even void, may or may not become important owing to the circumstances of the case. Under no circumstances could the party threatened with arrest upon such a warrant, do more than offer force commensurate with the danger threatened, and if he knows that the officer is the sheriff of a county and acting in that capacity, the mere fact that he will arrest him fttid JifrUj Iiihi witliont inflicting an/ pwqu]] vjolwo» will iwt authorize his using a deadly weapon upon such officer. The arrest, under such circumstances, becomes a mere detention, and while it may be unlawful it is not such an invasion of his rights, or such an offer of personal violence, as would justify him in using a lethal weapon. But suppose the contention of counsel for plaintiff in error is correct, yet the facts and circumstances of this case show that before any personal violence of any kind or character was offered, this man, who had already armed himself and threatened to kill any officer coming with any warrant to arrest him, drew this deadly weapon and fired upon the sheriff, and we leave it to some other court to say that the shooting of the sheriff under such circumstances was justifiable, and that the person committing such violence ought not to be punished therefor.

F. V. Owen and J. B. Graham, for plaintiff in error.

L. C. Stilliviell, Prosecuting Attorney, and W. M. Koons, for defendant in error.

The claim that a killing under such circumstances would not at least be manslaughter, is not a correct statement of the law. It is at least that, and as we view the record, it was murder in the first degree. Conceding the illegality of this warrant, yet this officer of this county was fully advised of the crime then charged against the plaintiff in error, and had a right, under the statutes of this state, to arrest him without a warrant and hold him until a legal warrant could be obtained, and the mere quibble touching, the technicality of this warrant can not avail him to escape the consequences of the crime that he premeditated for hours preceding its accomplishment, for it clearly appears from this record that he had a fixed, settled and deadly purpose of killing any officer or any person armed with any warrant coming there to effect his arrest. We are surprised that a verdict of manslaughter instead of murder in the first degree was returned by the jury in this case, and if we were authorized to reverse the verdict for any reason that would not prejudice the state in the prosecution of this crime we would be glad to do so; but we are now dealing with errors assigned by the plaintiff in error, therefore the judgment of the common pleas court will be affirmed, with costs. Exceptions of plaintiff in error are noted.


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    QUALIFICATIONS OF COUNCILMEN.
    [Circuit Court of Butler County.]
    State, ex rel Robert J. Shank, v. Homer Gard—Quo Warranto; and Fred Shearer v. Brandon R. Millikin et al—Injunction.
    Decided, May 1, 1906.

      Municipal Corporations—Qualifications of Members of Council—Inhibition against the Holding of any Other Office or Public Employment—Council the Judge of Election and Qualification of its Members—Words and Phrases—Construction of Sections 153G-G12 and 1536-613.
    1. The inhibition against the holding of other public office or employment, found in Section 120 of the municipal code (Revised Statutes, Section 1536-613), relating to the qualifications of councilmen, is not limited to other office or employment by the municipality, but extends to all public office and employment.
    2. Where one is elected to council who is already serving in the office of school examiner and is further employed as superintendent of a public school, the election is a nullity by reason of his ineligibility, and council has the right to so determine without notice to the one so affected or the taking of any proceedings against him, and may proceed to fill the vacancy forthwith.
    Shank filed in the circuit court a proceeding in quo warranto, setting forth that at the organization of the council of the city of Hamilton, on January 8, 1906, he was elected clerk thereof, and that the defendant, Homer Gard, had usurped the said office and was unlawfully holding it from the possession of the relator. The prayer was for ouster.
    The answer denied the election of the relator and the alleged usurpation, and alleged that in May, 1903, the defendant was duly elected clerk of the council for a term of two years and until his successor was elected and qualified, and that on January 8, 1906, the defendant was legally re-elected to said office for the term of two years, and that he gave bond, qualified and is performing the duties of the office.

      The reply was substantially a denial of the new matter in the answer.
    The determination of the issue thus presented was dependent upon the disputed title to a seat in council. The findings of fact as made by the circuit court were as follows:
    That at the November election, 1904, Fred Shearer, an elector of the city of Hamilton, was elected for two years as a member at large of the city council of said city; that prior to and at the time of such election said Fred Shearer held a public office in Butler county, Ohio, to-wit, the office of member of the county board of school examiners, and held a public employment in said city of Hamilton, Ohio, to-wit, as school teacher in and principal of one of the ward schools of said city, and as such officer and employe received compensation in money for his services; that continuously from the time of his election as said member of council and up until the filing of this proceeding he held said public office and said employment.
    That said Fred Shearer acted as such member of the city council until December 27, 1905, at which time a regular recessed meeting of council was held, of which meeting said Fred Shearer had full knowledge, and at which meeting the said city council by resolution found and determined that at the time of the election of Fred Shearer as such member of council and continuously thereafter to that time he was -said public officer and held such public employment, and that by reason‘thereof at all of said times he did not possess the qualifications of a member of council provided and required by Section 120 of the Municipal Code of Ohio, and by said resolution at said time the office of Fred Shearer as member of said city council was declared vacant, and that said Brandon R. Millikin was at said meeting duly elected by said council to fill the office of member of council in place of said Fred Shearer, and thereupon at said meeting of December 27, 1905, said Brandon R¡ Millikin appeared, took the oath of office and qualified as such member of council, and took possession of said office, and thereafter discharged the duties thereof; and the minutes of said meeting ■yvpro duly approved at the. next snlwtjnoiit meeting of eonnail,

      That said Fred Shearer was not present at said meeting, and while he had knowledge of said meeting, he had no notice of the intended proceedings held by said city council, declaring him ineligible, and his office vacant, and the appointment of said 'Brandon R. Millikin.
    The court finds that said city council met for organization January 8, 1906, at which time said Brandon R. Millikin was present as such member of council and that the president of council directed the then clerk, Homer Gard (the defendant), to call the roll of the members of the city council, which was done, and said Brandon Millikin’s name was called and he answered to said roll, and thereupon cormcil proceeded to elect a clerk, and the relator and defendant were both nominated for the office of clerk, and thereupon the president of council directed the roll to be called for said election, and said clerk did call said roll, including Brandon R. Millikin, and that four of the members of said council, including Brandon R. Millikin, voted for said defendant, -and that three of the members thereof voted for Robert J. Shank, all of which is shown by the minutes of said council, and which minutes were duly approved at the next meeting of said council.
    That at said last named meeting Fred Shearer was present, and that after the clerk had called the roll for the election of clerk, one J. P. Wilson, a member of said council, without the direction of any one, called the name of Fred Shearer, who responded by saying “Shank”; and the court finds that the calling of the name of Shearer by said Wilson does not appear on the minutes of said meeting. Thereupon the defendant was declared elected as such clerk of council, gave bond which was approved and filed, and entered into the possession and discharge of the duties of said office, and has since discharged the duties thereof.
    That the relator subsequent to said meeting pretended to give bond as such clerk and demanded of the defendant the said office and books, documents, papers and property appertaining thereto, which said demand said defendant refused.
    That said defendant, Fred Shearer, held said office of member of the board of county examiners and said employment as school teacher of the Hamilton special school district at the time of his election, and that at his term of said office and of said employment terminated June, 1905, bnt that during the month of June, 1905, he was reappointed as a member of the board of county school examiners and re-engaged as a teacher by said school district, and without interval continued upon another term as such member of the board of county school examiners and as such teacher, and has acted as such continuously there- . after until the trial of this case.

      Andrews, Harlan, <& Andrews, attorneys for the relator, contended—
    ‘ ‘ 1. That Shearer was at least the de facto member of council, and that the proceeding of the city council December 27, 1905, adjudging him disqualified, declaring his office vacant and appointing a successor without charges, investigation, notice to Shearer or knowledge on his part, is a mere nullity; and that it makes no difference whether or not he was disqualified because of the positions he held either by their inherent incompatability or by reason of a statute forbidding them. Citing: State, ex rel, v. Bryce, 7 0., 82 (Pt. 2); Hogan v. Carberry, 7 Rec., 595; 6 O. D. (reprint), 729; Board of Aldermen v. Darrow, 13 Col., 460; 16 Am. St., 215; Oliver v. Mayor of Jersey City, 48 L. R. A., 412; Halgreen v. Campbell, 82 Mich., 255; 21 Am. St., 557; Slate, ex rel, v. Ed: F. Ilewelt, 3 S. Dak., 187; 16 L'. R. A., 415; Commonwealth, ex red, v. Slifer, 25 Pa. St., 23; 64 Am. Dec., 680; Jones v. State, 28 Neb., 495; 7 L. R. A., 325; State v. Slate Medical Examimng -Board, 32 Minn., 324; 50 Aim. Rep., 575; Stale, ex rel, v. City of St.'Louis, 1 S. W., 757; State v. Sclmltz, 28 Pac., 643; Hartigan v. Board of Regents, 38 S. E., 698; Dullami v. Wilson, 53 Mich., 392; 51 Am. Rep., 128; Ccurter v. City Coimcil of Durango, 27 Pac., 1057; State, ex rel, v. Bryson, 44 O. S., 457; State, ex rel, v. Mchexm, 58 O. S., 313; State, ex rel, v. Sullivan, 58 O. S., 504; State, ex rel, v. Hawkins, 44 O. S., 98; Meachemfr. Common Council of City of New Brunswick, 62 Atlantic Reporter, 303; Carr v. City Council of Augusta, 52 Southern Reporter, 300; State, ex rel, v. Hoglan, 64 O. S., 532; State v. Brice, 7 O. S., 82 (Pt. 2); 4 Blackstone’s Com., 282; Murdock v. Trustees, 12 Pick., 244; State, ex rel, v. Darby, 12 C. C., 235; affirmed, 52 O. S., 611; State, ex rel, v. O’Bryan, 47 O. S., 464; Alderman v. Darrow, 13 Col., 460; 16 Am. St., 215. , ,
    “2. In Ohio the doctrine prevails that a member of counci] chosen to fin incompatible, office, or an office forbidden to him. does not lose his membership in the city council, but his election or appointment to the second office is invalid. State, ex rel, v. Kearns, 47 O. S„ 566; State, ex r,el. v. Taylor, 12 O. S., 130; Commissioners v. Cambridge, 7 C. C., 72; State'v. Newark, 6 N. P., 523; State, ex rel, v. Brotan, 60 O. S., 499.
    ‘ ‘ 3. Shearer was not disqualified under the law from holding at the same time the office of member of city council, member of county board of school examiners, and position of school teacher. State v. Kinney, 20 C. C., 325, and State, ex rel, v. Brown, 60 O. S., 499, were cited to establish the proposition that the public office or public employment forbidden to members of council is office under the'municipality or employment by it; and the former construction shall be given to the revision known as the municipal code, in the absence of any clear indication that the Legislature intended to change the law in that respect. Citing: Cong,er v. Barker, 11 O. S., 1-13; Ash v. Ash, 19 O. S., 385-387; Williams v. State, 35 O. S., 175; State, ex rel, v. Commissioners of Shelby Co., 36 O. S., 326-330; Allan v. Russel, 39 O. S., 336; State, ex rel, v. Auditor, 43 O. S., 311; State, ex rel, v. Stockley, 45 O. S., 304, 308-9; Tyler’s Executors v. Winslow, 15 O. S., 364; Hamilton• v. Steamboat, 16 O. S., 429; Brower v. Hunt, 18 O. S., 311-338; City of Warren v. Davis, 43 O. S., 447.

      “A section of a revised statute must be confined in its construction as if it were still a part of the original act from which it was taken. Eversole v. Shillcr, 50' O. S.,- 701.
    “The letter of a statute is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter. Burgett v. Burgett, 11 0. S., 469-481; Tracy v. Cmxl, 2 0. S., 431-441; Slater v. Cave, 3 0. S., 80-85; State v. Harmon, 31 0. S., 250-264; Brigel v. Stan buck, 34 0. S., 280-285; Johnson v. State, 42 0. S., 207-210; Board of Education v. Board of Education, 46 0. S., 595-600-1.
    “In the revision the Legislature has included ‘'public employment’ as well as ‘public office’ as to disqualification; but the public employment referred to is. employment by the municipality. There would be no reason or logic in a construction which would forbid a member of council from holding any other public office or public employment independent of the municipality, such as U. S. Commissioner, trustee of. one of the state institutions, jury commissioner, clerk or deputy of the county offices, member of the grand jury, petit jury, for these are all either public offices or ■ public employment; or from building for the county or acting as janitor of the court house and many others that may suggest themselves to the mind. Yet all these are forbidden to a member of council unless we construe this provision as it has been construed before the revision to mean public office or employment by the municipality. There is philosophy in forbidding' a member of council to have any public office or employment under the city authorities, because almost any duties rendered the city or emoluments received from the city would be incompatible with his office as member of council, but not so in other branches of the public service.
    “But, it may be claimed that our contention to the former construction put by the courts on the statute, have been overthrown by the expression ‘except that of notary public or member of the state militia.’
    “We maintain, however, that this exception only strengthens our position. It will be noted that the language is not except that of the office of notary public or office of member of the state militia (indeed the latter position is not an office at all), but the exception is that of the public employment of notary public or member of the state militia. That is, a member of the city council who may be a notary public or a member of the state militia shall not be disqualified as a member of council by his public employment either as a notary public or a member of the state militia by the city authorities.
    “The purpose of the Legislature is to forbid the public employment of a member of the city council by the city authorities in any capacity whatever, and to provide that he shall not render any public service for the city without forfeiting his office as a member of council except that he may render public service for the city or its officers as a notary or as a member of the state militia without forfeiture of his office as a member of the city council for the reason that such public employment is of such a trivial, rare or exceptional character that it could not tempt or influence in the least his conduct as a member of the city council.
    “It will be seen by an examination of Section 3096, et seq., that the state miliitia may be called into the service of the city, and the purpose of this exception is that such call of a member of the state militia into the service of the city * * * such public employment in the service of the city should not work a forfeiture of his office in case he should be a member of the city council.
    “Likewise a notary public may be employed by the city to acknowledge deeds, verify records and reports, administer oaths to public officers and many other acts as a notary public for which he may be paid out of the city treasury, and the purpose of the exception is to provide that such public employment of a notary shall not forfeit his office as a member of council. ’ ’

      The conclusion in the brief for the relator was, that if this contention is right then Shearer was on December 27 not only a de facto but also a de jure member of council; and whether a de facto member, or both a de facto and a de jure member, the action of council in attemping to declare his seat vacant and appoint a successor was a nullity.

      li. N. Shotts, Warren Gard and W. G. Shepherd, in a brief on behalf of the defendant, contended that the question involved was controlled entirely by Sections 119 and 120 of the municipal code (R. S., 1536-612 and 613), and that there is no room for the application of any common law rules, claiming that the holding of any public office or employment disqualifies a person from being elected a member of council, and that after a lawful election as member of such body such holding of office or employment works a forfeiture of the office of councilman forthwith. The election and subsequent incumbency of Shearer were, therefore, a nullity and no motion or judicial determination was necessary. Citing: State, ex rel, v. Graig, 69 O. S„ 236; Stale, ex rel, v. Orr, 61 O. S., 384; 23 Amer. & Ency. of Law, 338; State v. Aldermani (Mo.), 3 S. W. Rep., 849; Mechem Public Offices, Sec. 428; People v. Common Council, 77 N. Y., 503; Slmrns v. Wyoming, 53 O. S., 352; State, ex rel, v. Berry, 47 O. S., 232; State v. Haivhins, 44 O. S., 115; People v. Mays, 7 N. E., 660.
    Delay on the part of council in filling the vacancy occasioned by Shearer’s ineligibility is of no importance. Nothing that council or even Shearer could do would dispense with the statutory qualifications. In re Corliss, 11 R. L., 638; Commonwealth v. Platter, 1 Leg. Rec. Rep. (Pa.), 86; Sca/rcy v. Grow, 15 Cal., 117; People v. Chute, 50 N. Y., 451.
    In opposition to State v. Kinney, 20 C. C., 325, the eases of State v. Kearns, 47 O. S., 566; State v. McMillan, 15 C. C., 163, and State v. Wagner, 19 C. C., 149, were cited.
    It was further contended that the relator has no standing in court, because in order to prevail he must show that Millikin, who was appointed to fill the Shearer vacancy, had no title to the office of councilman, and relator’s action being one to oust Gard, the title of Millikin, who was not a party to the proceeding, could not be collaterally attacked. Citing: 4 Current Law, 861, Section 7; Ex Parte Strong, 21 O. S., 610; Sitshy v. Newton, 17 C. C., 482 (affirmed in 60 O. S., 605); State v. Gardner, 54 O. S., 24; People v. Mays, 7 N. E. Rep., 660.
    The conclusion of counsel for the defendant was that Shearer, by reason of holding another public office and employment, was ineligible to be elected a member of council; that his election was a nullity; that no action on the part of council was necessary to create a vacancy, and the appointment of Millikin to fill the vacancy was valid; and, moreover, that the relator could not in this collateral proceeding attack Million’s title.
    The conclusions of law as made by the circuit court, were as follows:
    “As conclusions of law the court finds that Fred Shearer, at no time between his election and the hearing of the cause, had the qualifications of a member of council required by law, and that his election and pretended incumbency of the office of councilman were a nullity, and that council had the right to determine this matter without notice to said Fred Shearer or taking any proceedings against him, and that the election of Brandon R. Millikin to fill said vacancy was duly and legally held, and that Homer Gard, the defendant, was legally elected as such clerk, and that the relator was not elected clerk, and is not entitled to any of the relief prayed for. It is therefore considered, adjudged and decreed that the relator’s petition be and the same is hereby dismissed, and that defendant recover of relator his costs expended in this action, taxed at $-; tó which decision of the court said relator excepts.”
    The opinion of the court- was as follows:
    Jelke, P. J.; Swing, J., and Giffen, J., concur.
    This is not a case involving the expulsion of a member of council, who being legally qualified has been duly elected and installed in office. Section 121 of the municipal code has no application to the case at bar. We are of opinion that at no time between his election and the hearing of this case did Fred Shearer have the qualifications of a member of council provided and required by Section 120 of the municipal code. He held the public office of school examiner and the public employment of superintendent of one of the Hamilton public schools before the election and continuously during the entire time of his pretended incumbency as member of council, in contravention of the provision :
    “Every member of council shall be an elector of the city, shall not hold any other public office or employment, except that of notary public or member of the state militia, and shall not be interested in any contract with the city.”
    We are of the opinion that the inhibition against persons holding public office or employment is not limited to office in or employment by the municipality, but extends to all public office and employment. This is evidenced by the exception of notaries public and members of the militia.
    Having come to this conclusion, the case of State, ex rel Attorney-General, v. Craig, 69 O. S., 236, applies:
    “Where the appointment to an office is a nullity, for the reason that the .apointee is by statute ineligible to such office, a legal appointment to such office may be made, without first ousting such first apointee by proceedings in quo warranto. ’ ’
    Fred Shearer’s election and pretended incumbency of the office of councilman were a nullity, and on December 27, 1905, council had the right under Sections 119 and 120 of the municipal code to determine this matter without notice to Fred Shearer or taking any proceedings against him, and to fill the vacancy forthwith by the election of Brandon R. Millikin.
    The prayers in both the quo warranto and injunction suits above set forth will be denied and the petitions dismissed.

      Andreius, Harlan & Andrews, Shank é Shank, and Neillm <6 Neilrnv, for plaintiff in error.

      li. N. Shotis, Warren Card and W. C. Shepherd, for defendant in error.

       Affirmed by the Supreme Court, without report, December 4, 1906,


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    BONDS FOR. CITY’S SHARE OF CONTEMPLATED IMPROVEMENTS.
    [Circuit Court of Lucas County.]
    Thomas F. Heffner, a Tax-Payer, on Behalf of the City of Toledo, v. The City of Toledo et al.
    Decided, October 19, 1906.

      Ordinance — Authorising Bonds for City’s Share of Various Improvements — Sewers and Street Intersections — Title of Ordinance Sufficiently Full, When — Procedure under Section 1586-281 — Section 1694, Relating to Title of Ordinances or By-laws — Sections 1536-213, 284, and 287.
    1. An ordinance providing for an issue of seventy-five bonds of $1,000 each to meet the city’s part of thirty-two sewer and street improvements, which are not more particularly named, is not violative of the requirement of Section 1694, Revised Statutes, because containing more than one subject not clearly expressed in the title; on the contrary, such an ordinance contains but one subject, and that is the subject embraced in Section 1536-213.
    2. Moreover, it was not the legislative intent that there should be separate legislation providing for an issue of bonds to pay the city’s share of each improvement made. A fund raised for such a purpose is a general fund from which the city may draw from time to time as occasion arises to pay its share of such improvements, wherever they may be located within 'the boundaries of the city; and in providing for this fund, it is not necessary to wait until legislation with respect to a particular improvement has gone forward to the point where an assessment has actually been levied.
    B. A. Hayes, for plaintiff:
    A city council can not, by passing a single ordinance, authorize the issue of bonds to raise funds to pay the city’s part of thirty-two different improvements. Elyria Gas & Water Co. v. Elyria, 57 Ohio St., 374; Campbell v. Cincinnati, 49 Ohio St., 463; Revised Statutes, 2706, 2708.
    The ordinance authorizing the issue of the bonds in question was prematurely passed. Elyria Gas & Water Co. v. Elyria, 57 Ohio St., 374; 97 O. L., 122, 126, Sections 53, 55 (Revised Statutes, 1536-213, 1536-215).
    Bonds to pay the city’s part of an improvement should be a part of the same issue as those to be paid from assessments on benefited property. 97 O. L., 121, 126, Sections 51, 53 (Revised Statutes, 1536-211, 1536-213); 96 O. L., 51, Section 95 (Revised Statutes, 1536-281); Emmcrt v. Elyria, 74 Ohio St., 185.
    Parker, J.; Haynes, J., and Wjldman, J., concur.
    Appeal from Lucas Common Pleas Court.
    This action (Thomas F. Heffner, a tax-payer, on behalf of the City of Toledo, vs. the' City of Toledo, Brand Whitlock, Mayor, and Randall G. Bacon, Auditor of the City of Toledo) was begun in the court of common pleas to enjoin the sale of certain bonds by the city. There a demurrer to the petition was filed and sustained; the cause was appealed to this court and has been argued and submitted to us upon this general demurrer to the petition. Tile case is stated in part very succinctly in the brief of counsel for the plaintiff, as follows:
    “This is an action by a tax-payer against the city of Toledo and its officers for an injunction to restrain the execution and issue and sale of municipal bonds authorized by an ordinance passed August 27th, 1906. In the court below', a demurrer to-the petition was sustained and the petition dismissed, whereupon the plaintiff appealed the case to this court,

      “The ordinance is set out at length in the petition, and provides for the issue of seventy-five bonds of $1,000 each, payable in twenty years, with 4 per cent, interest payable semi-annually. The bonds are issued to raise money to pay the city’s part of thirty-two different improvements mentioned in the ordinance; eight are for the construction of sewers, twenty-four for the construction of streets, of which nineteen are to be paved, three are to be repaved and two are to be graded. It appears from the ordinance that the city’s part of the various improvements varies from the sum of $5 for sewer 985, to $26,495 for repaving Norwood avenue.”
    It is contended on behalf of the plaintiff that this ordinance violates one of the provisions of Section 1694 of the Revised Statutes (Bates, 1536-620) which reads: “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title” — the contention being that there are as many subjects here as tli'ere are improvements on account of which funds are to be raised by the sale, of these bofids. In other words, thirty-two subjects; or, if that position is not tenable that since the particular improvements are designated in the statute as street improvements and sewer improvements, there are at least two subjects. We are of the opinion that there is but one subject here, and that it is the subject contemplated by Section 1536-213 (97 O. L., 126). The last clause of that section reads as follows:
    “Provided, that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation’s part of any improvement as aforesaid, and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon.”
    In other words, it authorizes the sale of bonds in certain cases to pay the corporation’s part of certain improvements; and that seems to be what is aimed at by the city in this case, and so the ordinance in this case is entitled “An ordinance to provide for the issue of general street improvement bonds of the city of Toledo, state of Ohio, to pay said city’s part of the cost and expense of improving sundry streets and alleys by paving, repaving, grading and macadamizing, and by constructing sewers therein, and to pay the said city’s part of the cost and expense of constructing such sewers.” It is true that this is to provide the city’s share— or a fund with which to pay the city’s share — of a large part of different improvements; and by this ordinance the city declares and makes manifest an intention to make these improvements; but this ordinance does not effectively determine that these improvements shall be made; it is not an ordinance of that character; that must be done by separate legislation; and when it' comes to such legislation, we have no doubt but it will be necessary to have separate legislation for each improvement. Therefore, without entering into a discussion of the cases of Campbell v. Cincinnati, 49 Ohio State, 463, and Elyria Cas é Water Company v. Elyria, 57 Ohio State, 374, 375, cited by counsel, we merely state that the cases do not seem to us to be in point or to apply to such legislation, or to such a state of affairs as we have presented here.
    I wish to express my own views about this matter, and I mention that they are mine because I think perhaps they may not be endorsed by my associates, and I do not desire to seem to commit them to these views, unless they wish to have me do so. But it seems to me that there was no need at all of particularizing these improvements in this ordinance. I do not believe that the general scheme contemplated and authorized by this legislation was intended to require anything of that sort with respect to these bonds to be issued to raise the city’s share of the funds necessary to carry forward these improvements. Our attention is called to Sections 2706 and 2708, Revised Statutes (Bates, 1536-285 and 1536-287), the first providing that:
    “All bonds, notes or certificates of indebtedness issued by municipal corporations shall be signed by the mayor and by the auditor, comptroller, or the clerk thereof, and be sealed with the seal of the corporation; and when issued for street improvements shall have the name of the street or portion thereof so improved, and for which the same were issued, legibly written or printed upon them.”
    Section 2708, Revised Statutes (Bates, 1536-287) provides:
    “Where the corporation is divided into districts for sewerage purposes, bonds issued for money borrowed to pay the expense of constructing or repairing sewers in any such district, shall have the name and number of the district for which they are issued legibly written or printed upon them.”
    The language seems to be broad enough to be fairly open to the construction that it was intended to cover bonds issued to raise the funds to pay the city’s share of these improvements, and yet, looking into the whole scheme and purpose of this legislation, it does not seem to me that that interpretation of the statute is required, or that it is reasonable. Section 2703, Revised Statutes (Bates, 1536-284) provides that:
    “All bonds issued under the authority of this chapter shall express upon their face the purpose for which they were issued and under what ordinance. ’ ’
    That would apply to this case; that would apply to bonds of this character; but in my opinion the other provisions, those of Sections 2706 and 2708, Revised Statutes (Bates, 1536-285 and 1536-287) apply to bonds issued in anticipation of the funds to be raised by this special assessment, so the bond buyers may be apprised of the revenue to which they must look and the legislation upon which they must depend for the payment of those bonds, and so that the funds of the city, both those raised by taxation and those raised by assessments in different quarters of the city for different sorts of improvements, may not be improperly diverted; but that assessments collected for a certain improvement may be applied upon the bonds issued on account of that improvement, in anticipation of those assessments, and not otherwise.
    But the reason for that does • not seem to me to apply at all to the cases of bonds issued for funds to pay the city’s share of these improvements, since such funds are provided by general taxation upon all the property of the city, and there can, in such cases, be no such thing as taking funds from one class of persons, or from one locality, and diverting them by applying them upon improvements made in another part of the city and for other citizens or property owners. The statute has always required the city to pay the cost of intersections. It authorizes now the payment of part of the expenses of certain improvements (street improvements and sewers) in addition to the cost of the intersections. I had never supposed that it was necessary in order to raise the funds to pay the cost of intersections, that the city should adopt legislation with respect to each one of the streets to be improved wherein intersections occurred, or if it were necessary to sell bonds for such funds, that it would be necessary to designate upon the bonds the street to be improved, on account of which the city was providing funds to pay the cost of intersections; and yet this additional cost imposed upon the city, that may be assumed by the city in addition to the intersections, stands, it seems to me, in all material respects and on principle upon the same basis as the expense of the cost of intersections.
    But in this particular case it is not necessary to pass upon the question of whether the naming of the improvement upon the bonds is required, since it appears that the ordinance provides for the placing of the names of these various improvements upon the bonds, and the various improvements are designated in the ordinance.
    I have already said that we hold that the ordinance contains but one subject; and it seems to us that the Legislature never intended to provide that there should be separate legislation as to the bonds to be issued to pay the city’s share of each improvement, since it would lead to results quite absurd. In the case at bar, for instance, it appears that the city’s share of some of these improvements does not exceed $100 — in one case the city’s share is but $5 — and it would certainly be very absurd to require that an ordinance should be passed providing for the sale of a bond to raise that $5, since the expense of sale would far exceed the amount to be raised for the improvement. While it would be not quite as bad, it would be bad enough, if it were required in the case of improvements costing the city but one hundred or two hundred dollars.
    The fund to pay the bonds is raised by general taxation- — in the old statute it was spoken of as a general assessment upon all the property of the city — -I think the present statute calls it a general tax, and certainly it is general as it is levied upon all the property of the city. I do not know of any distinction be-' tween a general assessment and a general tax. It is an assessment of a general tax upon all of the property of the city for certain purposes. If these funds to be raised to pay the city’s share of these improvements were to be kept separate and distinct, as required in the case of the funds raised, by special assessments on property specially benefited, then it would follow that for the city’s share of the cost of each one of these thirty-two improvements there would be a special fund set aside to be devoted to one certain improvement and no other, and a diversion from the fund to any other improvement of like character would be wrongful and unauthorized. But for myself, I do not regard the fund raised by this general tax in that light, or as- being of that character. I regard it as a general fund from which the city may draw’’ from time to time as need shall occur to pay its share of the cost of such improvements, wherever they may be within the city.
    In opposition to this view, it is urged that what is contemplated by 97 O. L., 26, Section 53, is the sale of bonds to pay the corporation’s part of improvements that, have been determined and have gone forward so far that special assessments have been made upon properties to be specially benefited. I read more of the section bearing upon this question, beginning about the middle of the section:
    “In all municipalities the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which part shall not be less than one-fiftieth of all such cost and expenses; and in addition thereto, the corporation shall pay the cost of intersections; provided, that whenever special assessments have been levied and paid for the improvement of any street or other public place, the property so assessed shall not again be assessed for more than one-half the cost and expense of repaving or repairing such street or other public place unless the grade of the same is changed.”
    And then follows -what I have already read:
    “Provided, that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation’s part of any improvement as aforesaid, and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon.”
    It is urged that the words “as aforesaid” applied to what goes before means improvements on account of which assessments are, that is to say, have been levied. But we - construe this statute as meaning that such bonds may be sold to pay the corporation’s part of improvements of that character, that is to say, casés where special assessments are authorized by law,' where special assessments may be made' — and to provide funds to pay the city’s part, it is not necessary for the city to wait until the legislation with respect to the improvement has gone forward so far as that the assessments shall have been actually levied.
    This is our answer to the further contention of counsel that the issuing of these bonds on account of certain of these improvements is premature and is anticipatory to a degree not authorized by the law. He points out in the petition—
    “That no resolution, nor any ordinance, for the said improvement of Hawley street, or of Michigan street, or of Sherman street, has yet been passed by the council of the city of Toledo; that no ordinance determining to proceed with said improvement of Adams street, or of Fernwood avenue, or of Galena street, or of Lincoln avenue, or of West Broadway, or of Bush street, or of North 12th street, or of Norwood avenue from 22d street to Lawrence avenue, or of Robinwood avenue, or of Jarvis street, or of Parker street, has yet been passed by the council of said city. That no special assessments have been levied to pay any part of the cost or expense of any of the improvements mentioned in said ordinance passed August 27th, 1906.”
    It may be said that unless the city is restricted in the sale of bonds of this character for such improvements as are going forward and such as have gone forward to a stage where assessments have been made, that it might sell bonds of this character without limit and unnecessarily raise a large fund, for which it may have no real legitimate use, unless it diverts to some other purpose.
    But the council is restricted fairly by Section 53 to the raising of such revenue as may be necessary to pay its share of such improvements as may be made or contemplated, and we are not required here to consider whether the city may not be providing for too large a fund, since there is no charge of that kind in the petition. It does not appear in the case submitted to us but tvhat the funds for which these bonds are being issued will be needed for purposes of this character. It may be that some of these particular improvements designated may fail at some stage so that they may not be built; but it seems .to us that in a case like that there is a provision of law for turning the funds over to the sinking fund — I have not that section before me — but it seems to me that it would not be an unlawful diversion of these funds (although certain improvements are designated in this ordinance) to devote them to other improvements within the corporation of like character. In other words, that what is stated in this legislation in the way of particularizing the improvements is practically surplusage. I understand, however, that in compliance with the requirements of bond buyers who are usually very cautious, sometimes overcautious, the city has adopted this method of designating the particular improvements to promote the selling of bonds of this kind; and it may be a legal necessity, though personally I can not see that it is.
    Our attention has been called to a recent decision of the Supreme Court of this State, in the ease of Emmert v. The City of Elyria, 74 Ohio State, 185, opinion by Judge Summers. One of the questions in that ease was whether the city could go forward with a certain improvement before the money to pay the city’s share of the cost of the improvement was actually in the treasury; and it was held, that since the bonds had been authorized and sold, the money should be deemed to be in the treasury; and that the contracts might be made and the improvement might go forward. It seems that in that case the city had proceeded in pursuance of 96 O. L., 51, Section 95 (Revised Statutes, 1536-281) to sell bonds that would raise' a sufficient fund to pay not only the part to be met by the assessments upon the property specially benefited, but to pay the city’s part of the cost of such improvement. At all events, in discussing the matter Judge Summers says that that course is authorized under that section, and he seems to discuss it as if that, were something novel in the statute; but in looking'into the statutes in force before the adoption of the new code, it seems to me that there has been no material change upon this subject. I will call attention to original Sections 2263, 2265, 2273, 2274, 2703, 2704, 2705, 2706, 2708 of Bates’ Annotated Ohio Revision of 1897. I shall not stop to read or comment upon all of these sections.
    The statute at that time provided that part of the cost of improvements of this character might be paid by the city from the fund raised by general taxation, and until this recent utterance from the Supreme Court I had always supposed that the provisions now found in Section 1536-281 as to the issuing of bonds in anticipation of special assessments applied strictly to bonds issued in anticipation of and to be met and paid by special assessments, and not to bonds issued in anticipation of and to be paid in whole or in part from the general revenue to be raised to pay the city’s share of such improvements. Since the Supreme Court has so declared it is now the law, that all of the revenue necessary, both the city’s share and the share to be raised by special assessments, may be raised by the sale of bonds under and in pursuance of Section 1536-281.
    But it is clear that this is not the only method of raising the city’s share. If the city should proceed under that section then the bonds would run, I believe at the farthest, ten years; and if the city should proceed under that section I suppose it would follow necessarily that the improvement on account of which the funds were raised, both the city’s share and the share to be made by assessment, would be named upon the bonds; all the legislation with respect to the matter would be special to the particular improvement in hand; but it is clear that 97 O. L., 126, Section 53 (Revised Statutes, 1536-213) authorizes the course of procedure pursued by the city in this case, expressly authorizes it.
    We see nothing disclosed by the petition here that in our opinion would invalidate this bond issue. The demurrer will be sustained and the prayer for injunction disallowed.

      B. A. Rayes, for plaintiff.

      John P. Mamón, for defendant.


text:
    ENTIRE AND SEVERABLE CONTRACTS.
    Decided, October 12, 1906.
    Braddock & Fox v. Frank G. Boner.
    [Circuit Court of Knox County.]

      Contract — For Sale and Delivery in Three Lots — Entire or Separable, When — Action to Enforce — Intent of the Parties.

    A contract for the sale and delivery of three carloads of hogs, at a specified price and of a weight fixed between certain limits, one carload of which has been delivered and paid for, will be treated as a severable contract; and the obtaining of judgment by the seller for the seeond carload does not bar him from suing for the value of the third carload.
   By The Court.

The only .question arising in this case, is whether the contract is severable or entire. The contract provides for the sale and delivery of three car loads of hogs, each car to weigh not less and not more than a certain number of pounds, each car load to be paid for on delivery at the rate of six and one-half cents per pound, and the delivery to be made during the early days of July. There was a delivery of one car load of these hogs and the same were accepted and paid for by the defendant at the time they were delivered, clearly evidencing the fact that the parties themselves understood the contract to mean that each car load was to be delivered severally and separately, and that upon delivery of one car load the seller was entitled to receive, and the buyer was required to pay, the purchase price of that delivery as determined by the weight thereof.

Courts will always look to the interpretation placed upon a contract by the parties themselves in giving it effect, and in' construing it according to the meaning and intents of the parties thereto. The other car loads were each tendered at different times and the defendant refused to receive each of them. One suit was brought for damages upon the failure to accept the second car load and pay for it, and a recovery was had and the judgment therein rendered was satisfied. This suit is for damages for failure to take the third ear and pay for it.

Columbus Ewalt, for plaintiff in error.

L. C. Stillwell and F. V.'Owen, for defendant in error.

The contention of defendant in error is that there having been one suit for breach of this contract and a satisfaction of the judgment rendered thereon, another suit can not be maintained because the contract is entire, and if he is right as to this being an entire contract and was not a severable contract, the authorities undoubtedly support his claim as to the law of this case, and there was no error in the court directing a verdict for the defendant. We think,'however, that this case comes fairly and fully within the doctrine announced in the case of Loomis Campbell Co. v. Eagle Bank of Rochester, 10 Ohio St., page 326. In that case there was a written contract or memorandum or agreement in the words and figures following, to-wit:

“We have this day sold Loomis Compbell & Company, one thousand kegs, 25 pounds net, of good merchantable blasting powder at $2.30 per keg, delivered on board boat at Rochester. Their note at six months from shipment, payable in New York City. Half delivered now and balance in June."

This contract was held by the Supreme Court of Ohio as a distinct and several agreement, and not as one entire contract, and upon this authority we hold that the contract herein sued upon was severable, and that this action would lie for the refusal to accept the third car load of hogs and pay for the same, notwithstanding recovery had been had for the breach of the contract in refusing to accept the second ear load and pay for them according to the terms of the contract between the parties.

Entertaining these views we find that there was error intervening in the trial of this case to the prejudice of plaintiff in error, in that the common pleas court directed a verdict for the defendant in error, and for that reason the judgment of said court is reversed.

Exceptions of defendant in error noted, and cause remanded for new trial and further proceedings according to law.


text:
    NEGLIGENCE OF A SAVINGS BANK IN PAYING OUT A DEPOSIT.
    [Circuit Court of Cuyahoga County.]
    The Hough Avenue Savings & Banking Company v. Jakol Andersson.
    Decided, October 29, 1906.

      Banks and Banking — Deposit in Savings Bank Paid Out on Forged Order — Negligence in Failing to Examine Signature — Reasonable Rules as to Payments to Depositors.

    A savings bank which has paid out all of a deposit on a forged order, accompanied by a stolen pass-book, is liable to the depositor for the amount thus paid out, if the forged signature varied from the real signature on a signature card and the bank neglected to compare said signatures.
    Winch, J.; Marvin, J., .concurs.
    In this case, plaintiff below, who is defendant in error in this court, brought suit to recover from the bank the amount of his savings deposit therein, which had been paid by the bank to a person who had stolen the defendant’s pass-book and presented it to the bank with a forged order for the payment of the entire deposit to him.
    One of the rules of the bank, as regards savings deposits, is as follows:
    "‘Deposits may be withdrawn by the depositor in person, or by written order; but in either case the pass-book must be presented, that such payments may be duly entered therein. As the officers of the company may be unable to identify every depositor, the company will not be responsible for loss sustained where a depositor has not given notice of his or her book being stolen or lost, if such book be paid in whole or in part, on presentation. In all cases, a payment upon presentation of a deposit book shall be a discharge to the company for the amount so paid.”
    To this rule the depositor had assented by signing a signature card on which appeared above his signature the following words:

      ‘ ‘ In signing this card I hereby agree to conform to and abide by the by-laws, rules and regulations of the Hough Avenue Savings & Banking Co., Cleveland, governing savings depositors.”
    The depositor signed his name “Jacob Andersson,” with two “ss” in his last name. The forged order bore the name “Jacob Anderson” with only one “s” in the last name.
    The signature card of the depositor was on file at the bank when the order was presented, but the teller of the bank did not compare the signature on the order with that on the card.
    The bank contended on the trial it was relieved of liability to the depositor by reason of said rule or by-law, and that in any event, it had been guilty of no negligence in the payment of said order, the pass-book being presented with it by a person known to it by reason of his having had two or three good checks cashed at the bank.
    The rules applicable to the case here presented are well stated in 2 Morse on Banking, Section 620, and are abundantly supported by the adjudicated cases. Says Morse:
    ‘ ‘ The regulations of a savings bank for withdrawing deposits, if properly made known to the depositor, are part of the contract between him and the bank. They are intended for the protection of bank and depositor against fraud and forgery,
    “One of the commonest rules is, that the bank book must be produced in order to draw the deposit, and that production of the book shall be authority to the bank to pay the person producing it. This is regarded as a reasonable and binding regulation, and if the bank pay to one having the book, there being no circumstances to excite suspicion and base an imputation of negligence on the part of the bank, the payment is good.
    “But the bank must exercise reasonable care. A stipulation between a savings bank and a depositor that his deposit may be paid to any one presenting his book, does not relieve the bank from the duty of exercising good faith and reasonable care.”
    The trial judge applied the law thus stated, and in his charge told the jury that there was but one issue for it to determine — -if they found that the signature to the order was forged then they must decide:
    “Was the defendant company negligent and careless, and did it fail to exercise due care and caution when it paid out the money ? ’ ’

      The jury determined this question in the affirmative and brought in a verdict for the plaintiff. In this we think the jury was right. It appears to us that it was negligence on the part of the bank teller to pay the order without comparing the signature thereon with the depositor’s genuine signature on the card. Had he done so, he would have noticed the difference in the spelling of the last name. This should have aroused his suspicions and doubtless the mistake would have been avoided.
    The loss in this case properly, falls upon the bank by reason of its negligence, notwithstanding its rule, which we hold to be a reasonable one. We have examined all errors complained of, but find none to the prejudice of the plaintiff in error.
    Judgment affirmed.

      White, Johnson, McCaslin & Common, for plaintiff in error.

      II. J. Norcl, for defendant in error.