author: Williams, J.

text:
    Hale v. State.

      Criminal pleading — How offense may be charged, when statute in alternative — Indictment under act to regulate practice of medicine— When not bad for duplicity— What a sufficient averment, in such indictment, of failure to comply with the act — Exception or proviso in criminal statute— When should, and when need not, be negatived — Indictment under section 440Sg, need not negative proviso in section 4403f

    1. When an offence against a criminal statute may, in the same transaction, be committed in one or more of several ways as therein provided, the indictment may, in a single count, charge its commission in any or all of the ways specified, if they are not repugnant.
    2. An indictment drawn under the act ‘ ‘ to regulate the practice of medicine in the state of Ohio, ” (92 O. L., 44) which charges that the defendant, without having complied with the provisions of the act, for a fee prescribed, directed, and recommended for the use of a person named, a drug medicine, and agency, put up in a paper box on which he wrote directions to which he signed his name and appended thereto the letters “M. D.,” is not bad for duplicity.
    • 3. An averment in such indictment, that the defendant, at a time more than ninety days after the passage of the statute, practiced medicine in the county oflhis residence without having left with the probate judge of the county a certificate of the state board of medical registration and examination, is sufficient to show a fai lure to comply with the provisions of the statute. It is unnecessary to aver, either that the defendant was not a graduate of a medical college, or that he was not a legal practitioner of medicine when the statute was enacted.
    4. Where an exception or proviso in a criminal statute is a part of the description of the offence, it must be negatived by averment in the indictment in order to fully state the offence; but when its effect is merely to except specified acts or persons from the operation of the general prohibitory words of the statute, the negative averment is unnecessary.
    5. The proviso contained in section 4403f of the act to regulate the practice of medicine in this state, is not descriptive of the offence made punishable by the first clause of section 4AQ3g; and an indictment for such offence, otherwise good, is not demurrable for want of an averment negativing the facts to which the proviso relates.
    (Decided June 24, 1898.)

      Motion for leave to file petition in error to the Circuit Court of Jackson county.
    At the February term, 1898, of the court of common pleas of Jackson county, William F. Hale was indicted for practicing medicine in that county, without having complied with the provisions of the act “to regulate the practice of medicine in the state of Ohio,” passed February 27,1896 (92 O. L., 44). The indictment charges that: “William F. Hale, late of said county, on the 14th day of February, in the year of our Lord, one thousand eight hundred and ninety-eight, at said county of Jackson, and state of Ohio, did knowingly, willfully and unlawfully practice medicine in the state of Ohio without having first complied with the provisions of the act of the general assembly of the state of Ohio, entitled ‘An act to regulate the practice of medicine in the state of Ohio, ’ passed February 27, 1896, in this that at the time and place aforesaid he, the said William F. Hale, did for a fee, to-wit: The sum of thirty-five cents prescribe, direct and recommend for the use of one 0. B. McClelland, a certain drug, medicine and agency to-wit: A certain drug, medicine and agency put up in tablet form and encased in a certain paper box, upon the outside of which said paper box then- and there containing said medicine, put up in tablet form as aforesaid, he, the said William F. Hale, then and there wrote and signed his name to a certain prescription and direction, and he, the said William F. Hale, then and there annexed and appended the letters ‘M. D. ’ to his said name so written under and signed to said prescription and direction as aforesaid, which said prescription and direction is in the words and figures following towit: ‘1 to 2 with each meal. Hale, M. D.,’the name and composition of which said medicine, drug and agency is unknown to this body, the grand jury aforesaid, for the treatment, cure and relief of a certain bodily infirmity or disease, the name and nature whereof is unknown to said body, the grand jury aforesaid; he, the said William F. Hale, at the time aforesaid not having left for record with the probate judge of the' county in Ohio wherein he then resided, to-wit, the county of Jackson, a certificate from the state board of Medical Registration and Examination of the state of Ohio, entitling him to practice medicine or surgery within the state of Ohio as required by the act aforesaid, and he, the said William F. Hale, at the time aforesaid not being entitled under the act aforesaid or the law of Ohio to practice medicine or surgery within the state of Ohio.”
    The defendant filed his motion to quash the indictment on the ground that it was bad for duplicity; and, that motion having been overruled, the defendant filed a demurrer to the indictment, which was also overruled. He was found guilty on the trial of the case, and adjudged to pay a fine and the costs of prosecution. That judgment was affirmed by the circuit court; and the present motion is made for leave to file a petition in error in this court to reverse the judgments below. The errors assigned are the overruling of the motion to quash the indictment, and of the demurrer thereto. These will be more particularly noticed in the opinion.

      Powell <& EubcmJcs, for the motion.

      A. E. Jacobs, prosecuting attorney, contra.

   Williams, J.

As the statute on which this prosecution is founded is of recent enactment, and the questions presented are likely to arise in other cases, it has been deemed proper to report the decision upon the motion.

1. The statute provides (section 4403/), that any person shall be regarded as practicing medicine or surgery within the meaning of the act, “who shall append the letters M. D. or M. B. to his name, or for a fee prescribe, direct or recommend for the use of any person, any drug or medicine or other agency for the treatment, cure or relief of any wound, fracture or bodily injury, infirmity or disease.” And, it is contended that, as the indictment, in the same count, charges that the accused prescribed a medicine for the use of a person named, and appended the letters “M. D.” to his name subscribed to directions written on the package for the use of the medicine, two distinct offenses are charged, rendering the indictment obnoxious to a motion to quash on the ground of duplicity.

It appears to be a well settled rule of criminal pleading that, when an offense against a criminal statute may, in the same transaction, be committed in one or more of several ways, as therein provided, the indictment may, in a single count, charge its commission in any or all of the ways specified in the statute, if they are not repugnant; and proof of any one of them will sustain the indictment. This rule is more fully stated in Bishop’s New Criminal Procedure, Vol. 1, section 436, as follows; “A statute often makes punishable the doing of one thing, or another, or another, sometimes specifying a considerable number of things. Then by proper and ordinary construction a person who, in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore, an indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has “or,” and it will not be double, and it will be established at the trial by proof of any one of them.”

The offense of practicing medicine without compliance with the statute, may, as it is defined in section 4403/j be committed either by prescribing a medicine or remedial agency for a fee, or by appending to one’s name the letters M. D.; but, it is apparent that the statute may be violated in both of these ways in the same transaction. It is not unusual in prescribing a remedy, whether it is prepared by the physician, ready for use, or is to be filled by a druggist, to accompany the prescription with directions for the use of the remedy; and when such direction is written and signed with the usual professional designation or abbreviation of a physician appended to the signature, by a person not authorized to practice medicine, there is committed in the same transaction, an offense against each of the provisions of the statute, and both may be charged in a single count, without rendering the indictment objectionable on the ground of duplicity. Under such indictment there may be a conviction upon proof' of a violation of either of the provisions; and such conviction, or an acquittal, will necessarily be a bar to any further prosecution based on that transaction.

Nor is this indictment open to the objection of duplicity because it charges that the defendant prescribed, directed and recommended the remedy 7 and describes the latter as a drug, medicine, and agency for the treatment, cure and relief of a wound, fracture and bodily injury, although the statute is in the alternative, and makes it an offense to do either of the things mentioned; for they are not repugnant, and all of them may occur in the same transaction, constituting but one offense. Upon this principle it was held that where a statute made it a crime to use instruments, or administer drugs, to produce an abortion, an indictment drawn on it, was not double which charged that both of those means were employed by the defendant in the commission of the offense. Commonwealth v. Brown, 14 Gray, 419. And under a statute which prohibited the unlicensed sale of rum, brandy, whiskey, or gin, it was held proper to charge, in a single count, the sale of all these various kinds of liquors. Ranson v. State, 19 Conn., . 292. Numerous cases are found in the books in which indictments so drawn on alternative statutes, have been sustained. Bishop on Statutory Crimes, sections 244, 383; Bishop’s New Criminal Procedure, section 586.

2. The indictment charges that, at the time the defendant engaged in the practice of medicine, as therein described, he had not left for record with the probate judge of the county in which he resided and so practiced, a certificate of the State Board of Medical Registration and Examination entitling him to practice medicine or surgery in this state, as required by the statute; but it contains no averment that he was not a graduate in medicine or surgery, or a legal pactitioner under the laws in force when the statute was passed; and the want of such averment is one of the objections made to the indictment on the demurrer. The contention is, that such an averment is necessary to the statement of an offense under the statute, because, neither those who were legal practitioners at the time of its passage, nor graduates of medical colleges, are required to leave certificates obtained by them from the medical board, with the probate judge; that requirement being applicable, it is said, to those only who receive certificates upon examination by the board. We are unable to adopt that construction of the statute. It is made necessary by section 4403c, for every person, without exception, to first comply with the provisions of the statute before engaging in the practice of medicine or surgery; and section 4403y, makes it a misdemeanor for any person to practice medicine or surgery without having first complied with the provisions of sections 4403c and 4403«J. Compliance with both of these sections is essential. By the first of them, all persons who desire to engage in the practice of medicine or surgery, those who were legal practitioners at the time of the enactment of the statute, and graduates of medical colleges, as well as others who were neither, are required to first obtain a certificate entitling them to do so, from the board; the only limitation upon that requirement being, that persons engaged in the practice when the statute was enacted are authorized to continue therein for a period of ninety days after it took effect, in order to enable them to apply for and obtain the certificate required; but, if they would thereafter engage in the practice, they must have the necessary certificate. There is a difference in the mode of obtaining these certificates. A graduate of a medical college is required to present his diploma to the board of examination, accompanied by his affidavit that he is the person to whom it was granted, and stating his age and the time spent in the study of medicine; but this does not necessarily entitle him to a certificate to practice. The board must pass upon the genuineness of the diploma, and determine whether the college issuing it was, at the time, a chartered medical institution in good standing; and, though it be genuine and issued by such a medical institution, the board may nevertheless refuse to grant a certificate to the applicant, if, in the opinion of the board, his habits or character render him unfit to practice. A person who was a iegal practitioner when the act was passed, is required to furnish the board satisfactory evidence to that effect; and all others must undergo an examination. But, while there is this difference in the methods by which certificates to practice may be obtained from the board, no person of either class is entitled to practice medicine in this state after ninety days from the passage of the act, without having first obtained the necessary certificate from the medical board. The only difference in the certificates is in their duration; those received on examination entitle the holder to practice for one year, while the others continue in force indefinitely unless revoked by the board. Then, in explicit terms, section 4403d requires that every person receiving a certificate to practice medicine or surgery, shall, before entering upon the practice, leave his certificate with the probate judge of the county in which he resides, for record. In this requirement there is no exception in favor of graduates, or former legal practitioners, nor any distinction on account of the method of obtaining the certificate, or otherwise. The statute, in this respect, was designed to operate uniformly upon all members of the medical profession, and its purpose was to provide a public record, open at all times to public inspection, containing a complete list of all authorized resident practitioners in the county, from which it can be readily ascertained who are legally authorized to practice the profession. This is obvious enough from the subsequent provisions of that section, by which it is made the duty of the probate judge to make a record of all certificates, in a book to be kept for that purpose, note on the margin the time when received, or revoked, and any change in the location of the owner, or his death, and furnish annually to the secretary of the board, a list of all certificates recorded and in force, and those revoked, or the owners of which have removed from the county, or died during the year. And in case of a change of residence to another county, the owner of the certificate is required to have it recorded anew by the probate judge of the county to which he removes. An averment in an indictment, therefore, which charges that the defendant engaged in the practice of medicine or surgery at a time more than ninety days after the passage of the statute, without having first left with the probate judge of the proper county a certificate granted him by the medical board of registration and examination, is a sufficient averment of his failure to comply with the provisions of the statute; and it is unnecessary to aver either, that he was not a legal practitioner when the statute was passed, or not a graduate of a medical college.

3. It is further contended in support of the demurrer, that the indictment is defective because it contains no averment which takes the defendant, or the act charged, out of the operation of the proviso contained in section 4403/. The language of section 4403g is that:- “Any person practicing medicine or surgery as defined in section 4403f in this state, without having complied with the provisions of sections 4403c and 4403d, except as therein provided, shall be deemed guilty of a misdemeanor,” etc. The phrase “except as therein provided,” evidently refers to the proviso contained in section 4403/; and the language of that section, after defining what shall be regarded as practicing medicine or surgery, is as follows: “Provided, however, that nothing in this act shall be construed to prohibit service in case of emergency, or the domestic administration of family remedies; and this act shall not apply to any commissioned medical officer of the United States army, navy or marine hospital service in the discharge of his professional duties, nor to any legally qualified dentist when engaged exclusively in the practice of dentistry, nor to any physician or surgeon from another state or territory who is a legal practitioner of medicine or surgery in the state or territory in which he resides, when in actual consultation with a legal practitioner of this state, nor to any physician or surgeon residing on the border of a neighboring state, and duly authorized under the laws thereof to practice medicine or surgery therein, whose practice extends into the limits of this state.” It is claimed that, inasmuch as the section which makes it a misdemeanor to practice medicine without having complied with the statute refers to section 4403/ for a definition of what shall constitute such practice, from which the persons and cases mentioned in the proviso are excepted, the exceptions enter into the description of the offense; so that, the indictment should, by negative averment show that the defendant and the act charged against him are not within the proviso. The statement of the proposition is not without plausibility, but in our opinion it cannot be maintained. “Where a statute contains provisos and exceptions in distinct clauses it is not necessary to state in the indictment that the defendant does not come within the exception, or to negative the proviso it contains. Nor is it even necessary to allege that he is not within the benefit of its provisos, though the purview should expressly notice them, as by saying that none should do the act prohibited except in cases thereafter excepted. For all these are matters of defence which the prosecutor need not anticipate, but which more properly come from the prisoner.” 1 Chitty Crim. Law*, 284; 2 Hawk, P. C., c. 25, section 113.

This rule is aptly illustrated and applied in State v. Miller, 24 Conn., 522, where the defendant was prosecuted under a statute which prohibited the manufacture or sale of any spirituous or intoxicating liquors ‘ ‘excep t as hereinafter p rovided. ’ ’ The next section contained certain exceptions. It was held the exceptions need not be negatived. And it is there said by the court that, “The rule everywhere laid down is, that after words of general prohibition whatever comes in by way of proviso or exception need not be negatived by the pleader but properly comes from the accused.” So, in the case of State v. Abbey, 29 Vt., 60, the defendant was indicted under a statute which provided that, “if any person who has a former husband or wife living shall marry another person or shall continue to cohabit with such second husband or wife in this state, he or she shall, except in the cases mentioned in the following section, be deemed guilty,” etc. The following section provided that “this act shall not extend to any person whose husband or wife has been continuously beyond the sea, or out of the state for seven years,” etc. It was held not necessary for the indictment to negative the exception. The same rule was applied, under a similar statute, in Com. v. Jennings, 121 Mass., 47, where it is observed by Gray, C. J., that “it is established by a great preponderance of authority that where an exception is not stated in the enacting clause otherwise than by merely referring to other provisions of the statute, it need not be negatived unless necessary to a complete definition of the offense.” And see Hart v. Cleis, 8 Johns., 33; Com. v. Hill, 5 Gratt., 682.

The test appears to be that, when an exception or proviso in a criminal statute is a part of the description of the offense, it must be negatived by averment in the indictment in order to fully state the offense; but where its effect is merely to take certain persons or acts out of the operation of the general prohibitory words of the statute, the negative averment is unnecessary. Read together, sections 4403/ and 4403y amount to this: That there is a general prohibition against persons practicing medicine by prescribing, etc., or appending the abbreviated professional designation to his name, without having first complied with the statute; and then, by the proviso, specified persons and cases are excepted from the operation of the statute. An indictment which charges a violation of the general prohibitory provision, makes a prima facie case; and if the accused, or the act with which he is charged, comes within any clause of the proviso, that is a matter which lies more especially within his knowledge, and should be brought forward by him in defence. This indictment was therefore not demurrable because it contained no averment negativing the existence of the facts to which the proviso relates.

Motion overruled.


source: Caselaw Access Project

license: Public Domain

text:
    No. 5841.
    Shea, Admx., v. Railroad Company.
    (Decided March 1, 1898)
    Error to the Circuit Court of Lucas county..

      Scribner, Waite <&. Wachenheimer, for plaintiff in error.

      E. D. Potter, Jr., for defendant in error.
   Judgment affirmed, one ground of reversal being that the verdict is against the weight of the evidence.


text:
    No. 4867.
    Meehan v. Burr, Trustee, et al.
    (Decided March 8, 1898.)
    Error to the Circuit Court of Franklin county.

      J. T. Holmes and George S. Peters, for plaintiff in error.

      T. J. Keating; M. B. Patterson; Eugene Lane and Charles E. Burr, for defendants in error.
   Judgment of the circuit court reversed on the authority of Donley's Admrs. v. Shields, 14 Ohio, 359, and judgment for plaintiff in error.


text:
    No. 5035.
    Sebelin v. Payne.
    (Decided March 8, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Winch c& Wolcott, for plaintiff in error.

      Clark <& Thompson, for defendant in error.
   Judgment affirmed on authority of Maholm v. Marshall, 29 Ohio St., 611.


text:
    No. 5036.
    Houston v. Mansfield et al., Trustees.
    (Decided March 8, 1898.)
    Error to the Circuit Court of Hamilton county.

      Twgman & Baker, for plaintiff in error.

      W.' T. Porter; Sidles <& Skiles and L. Bruclcer, for defendants in error.
   Judgment affirmed.


text:
    No. 5766.
    Commissioners of Wood County v. Commissioners of Ottawa County.
    (Decided March 8, 1898.)
    Error to the Circuit Court of Ottawa county.

      Parker & Fries and F.. G. Love, for plaintiff in error.
    <7. I. York and William Gordon, for defendant in error.
   Judgment affirmed on the grounds stated in Board of Commissioners of Fulton county v. Board of Commissioners of Lucas county, 12 O. C. C. Rep., 563.

Minshall, J., dissents.


text:
    No. 5029.
    Rush v. Plummer, Jr., et al.
    (Decided March 15, 1898.)
    Error to the Circuit Court of Holmes county.

      Stilwell dc Bailey and John Huston, Jr., for plaintiff in error.

      Alfred J. Thomas and M. G. Pauley, for defendants in error. '
   Judgment affirmed.


text:
    No. 5038.
    National Bank of Columbus v. Ohio Coal Exchange et al. .
    (Decided March 15, 1898.)
    Error to the Circuit Court of Franklin county.

      JS. B. Jewett and J. V. lee, for plaintiff in error.

      Arnold, Morton <& Guerin, and Booth & Keating, for 'defendant in error. .' ' '
   Judgment affirmed.


text:
    No. 5051.
    Railroad Company v. Bain et al.
    (Decided March 15, 1898.)
    Error to the Circuit Court of Belmont county.

      J. H Collins, for plaintiff in error.

      Tollman c& Armstrong, for defendants in error.
   Judgment affirmed.


text:
    No. 5754.
    Hofstetler v. The State.
    (Decided March 15, 1898.)
    Error to the Circuit Court of Wayne county.

      Rieder c& Jforr, and If. R. Smith, for plaintiff in error.
    . F. S. Monnett, Attorney General; W. F. Weygandt, Prosecuting Attorney, and Ross W. Funoh, for defendant in error.
   Judgment affirmed.


text:
    No. 5755.
    Lehman v. The State.
    (Decided March 15, 1898.)
    Error to the Circuit Court of Wayne county.

      Reider dk Morr, and II. R. Smith, for plaintiff in error.

      F. S. Monnett, Attorney General; W. F. Weygandt, Prosecuting Attorney, and Ross W. Funch, for defendant in error.
   Judgment affirmed.


text:
    No. 5028.
    City of Alliance et al. v. Hartzell et al.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Stark county.

      J. W. Graine, for plaintiffs in error.

      Ray, Lynch <& Ray, for defendants in error.
   Judgment affirmed.


text:
    No. 5033.
    Lemmax et al. v. Robertson et al.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Noble county.

      Mg Ginnis db Leland, for plaintiffs in error.

      JD. 8. Spriggs, for defendants in error.
   Judgment affirmed.


text:
    No. 5045.
    Ginn v. Board of County Commissioners et al.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Logan county.

      West do West, for plaintiff in error.

      James A. Odor, Prosecuting Attorney, and Roioenstine, Ruston dh Miller, for defendants in error.
   Judgment affirmed.


text:
    No. 5046.
    Ginn v Board of County Commissioners et al.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Logan county.

      West ds West, for plaintiff in error.

      James A. Odor, Prosecuting Attorney, and Rouf enstine, Ruston do Miller, for defendants in error.
   Judgment affirmed.


text:
    No. 5050.
    Carlin, by her Guardian, v. Hosler, Treasurer.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Hancock county.

      Jason Blackford & Byal, for plaintiff in error.

      Theodore Totten, for defendant in error.
   It is argued and adjudged by this court that the judgment of said circuit court be and the same is hereby reversed on the ground that the commissioners of Hancock.county and of Seneca county in joint session had no jurisdiction to establish said’ ditch, which lies wholly in Hancock county, and upon the further ground that the county commissioners could not legally establish a ditch over the lands of said Maude Carlin, she being a minor, and could not legally make an assessment on her lands for such ditch without first assessing and paying to her compensation for the lands taken for such ditch, and for these reasons the petition and supplemental petition state facts sufficient to com stitute a cause of action, and 'the injunction case having been dismissed by the plaintiff was not an adjudication of her rights.

It is further ordered that this cause be and the same is remanded to the circuit court of Hancock county for further proceedings according to law.

Judgment reversed.


text:
    No. 5065.
    Alexander et al. v. Groeshen et al.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Hamilton county.

      William G. Roberts and R. O. Taylor, for plaintiffs in error.

      Mallon, Coffey os Mallon ; J. J. Glidden ; Robert P. Margitt and Outcalt, Granger & Hunt, for defendants in error.
   Judgment affirmed.


text:
    No. 5091.
    Harris v. Battels et al.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Hancock county.

      A. F. P. da R. A. Blackford, for plaintiff in error.
    ' E. T. Dwm; George II. Phel/ps, and Seney, Johnson da Friedman, for defendants in error.
   Judgment affirmed.


text:
    No. 5620.
    Saunders et al., Exrs., v. Learman.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Hamilton, Hamilton da Smith, for plaintiffs in error.
    . For an da McTighe and J. P. Dawley, for defendant in error.
   Judgment affirmed.


text:
    No. 5071.
    Doty v. Swing et al.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Hancock county.

      A. Blackford; B. J. Kibler and John N. Doty, for plaintiff in error.

      Franklin T. Cahill; John E. Betts; Thomas Meehan and F. T. Dunn, for defendants in error.
   Judgment affirmed.

Burket, J., did not participate.


text:
    No. 5072.
    Sells et al. v. Appel.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Seneca county.

      Clayton W. Everett and Powell <£ Minaban, for plaintiffs in error.

      Kurd, Brumback da Thatcher, for defendant in error.
   Judgment affirmed.


text:
    No. 5082.
    Davis v. Coffman et al.
    (Decided March 29, 1898.)
    Error to. the Circuit Court of Muskingum county.

      Charles M. Vandenbark and Simeon M. Winn, for plaintiff in error.

      Aehauer da Cates and J. T. Crew, for defendants in error.
   Judgment affirmed.


text:
    No. 5079.
    Travelers’ Insurance Co. v. Woerstler.
    (Decided April 12, 1898.)
    Error to the Circuit Court of Summit county.

      Oviatt, Allen <& Cobbs, for plaintiff in error.

      E. C. Sanford and P. E. Waters, for defendant in error.
   Judgment affirmed.


text:
    No. 5086.
    Lagonda National Bank v. Jenney.
    (Decided April 12, 1898.)
    Error to the Circuit Court of Clark county.

      Kiefer <& Kiefer, for plaintiff in error.

      Frank W. Geiger and D. F. Beinoehl, for defendant in error.
   Judgment affirmed.


text:
    No. 5104.
    Osborn et al. v. Huffman, Treasurer, et al.
    (Decided April 12, 1898.)
    Error to the Circuit Court of Montgomery county.

      McMahon <& McMahon, for plaintiffs in error.

      Edwin P. Matthews, City Solicitor, for defendants in error.
   Judgment affirmed.


text:
    No. 5110.
    State ex rel. Finefrock et al. v. Leffler, Treasurer.
    (Decided April 12, 1898.)
    In Mandamus.

      J. B. Jones, for plaintiffs.

      J. A. Wolford; W. E. Scofield and J. K. Richa/rds, for defendants.
   Demurrer to reply sustained and petition dismissed.


text:
    No. 5058.
    Railroad Company v. Board of County Commissioners of Seneca County.
    (Decided April 19, 1898.)
    Error to the Circuit Court qf Seneca ccunty.

      Dore <& Dore, for plaintiff in error.

      George E. Schroth, for defendants in error.
   Judgment affirmed.


text:
    No. 5439.
    Brown et al. v. Hull.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Hancock county.

      •John Poe, for plaintiffs in error.

      S. P. Harrison, for defendant in error.
   Judgment affirmed.


text:
    No. 5655.
    Mt. Adams and Eden Park Inclined Railroad Company v. Tufts.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Hamilton count}'.
    ' KitPredge dc Wilby and J. W. Warrington, for plaintiff in error.

      Goebel <& Bettinger and D. O. Keller, for defendant in error.
   Judgment affirmed.


text:
    No. 5759.
    Higgins v. Marion Steam Shovel Company.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Marion county.

      D. B. Orissinger and Finley & Gailinger, for plaintiff in error. . .

      J. A. Wolford and W. Z. Davis, for defendant in error.
   Judgment affirmed.


text:
    No. 5760.
    City of Findlay v. Findlay Street Railway Company.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Hancock county.

      William F. Duncan, for plaintiff in error.
    ■ J. A. db F. V. Dope, for defendant in error.
   Judgment affirmed.

Minshall, J., dissents.


text:
    No. 5771.
    Wood v. Railway Company.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Marion county.

      Scofield, Durfee <& Scofield, for plaintiff in error.

      W. Z, Davis; S. 0. Bayless and John T. Dye, for defendant in error.
   Judgment affirmed.


text:
    No. 5784.
    Barnes v. The State
    (Decided April 19, 1898.)
    Error to the Circuit Court of Lucas county.

      Hamilton & Kirby and L. M. Murphy, for plaintiff in error.

      Charles K Sumner, for defendant in error.
   Judgment affirmed.


text:
    No. 5797.
    Kight v. The State.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Franklin county.

      Barger <& Barger and Cyrus Huling, for plaintiff in error.

      Charles W. Voorhees,Prosecuting Attorney; J H. Dyer; Henry A. Williams, Assistant Prosecuting Attorney, and Florizel Smith, for defendant in error.
   Judgment affirmed.


text:
    No. 2294.
    State ex rel. Attorney General v. Standard Oil Company.
    (Decided April 26, 1898.)
    Contempt.

      F. 8. Monnett, Attorney General; E. B. Kinkeach W. L. Flagg and William Herbert Page, for. plaintiff.
    Kline, Carr, Tolies <& Goff, for defendant.
   And now on this 26th day of April, 1898, this matter is heard and submitted on the demurrer of the respondent to a portion of the seventh, of the eighth and of the eighteenth interrogatories, and it is ordered and adjudged that the said demurrer be and the same is hereby overruled as to said seventh, eighth and twenty-third interrogatories, and sustained as to said tenth and eighteenth interrogatories.

It is further ordered that the respondent file its answer to the seventh, eighth and twenty-third interrogatories on or before June 16, next. Thereupon the matter is further heard upon the motion of relator to require respondent to make its answer to the ninth, eleventh, sixteenth eighteenth, [twentieth and twenty-second interrogatories more definite and certain, which being heard and understood by the court is overruled.

Demurrer to interrogatories sustained in part and overruled in part.


text:
    No. 5048.
    Farmers Mutual Fire Insurance Company v. Bachman.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Darke county.

      Meeker da Gaskill, and Alb'ead c& Teegarden, for plaintiff in error.

      Anderson & Bowman, for defendant in error.
   Judgment affirmed.


text:
    No. 5060.
    City of Mansfield v. Mews.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Richland county.

      T. B. Nobison, City Solicitor, and Sewa/rd & Brieker, for plaintiff in error.

      Bowers da Black and J. O. Laser, for defendant in error.
   Judgment affirmed.


text:
    No. 5066.
    Lion Dry Goods Company v. Daniels.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Lucas county.

      George II. Beckwith, for plaintiff in error.

      Kinney d¡ Newton, for defendant in error.
   Judgment affirmed on grounds stated in Daniels v. The Lion Dry Goods Co., 11 O. C. C. Rep., 351.


text:
    No. 5087.
    Walker v. McGillin.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Mahoning county.

      M. C. Mg Nab and T. W. Sanderson, for plaintiff in error.

      L. W. King and M. A. Morris, for defendant in error.
   Judgment affirmed.


text:
    No. 5099.
    Higbee et al. v. Caulkins.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Charles F. Morgan, for plaintiffs in error.

      F. T. & W. J. Hamilton, for defendant in error.
   Judgment affirmed.


text:
    No. 5629.
    Cleveland City Railway Company v. Militzer.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Squire, Sanders <& Dempsey, for plaintiff in error.

      Kerruish Cha/oman & Kerruish, for defendant in error.
   Judgment affirmed.

Spear, C. J., and Shauck: and Burket, JJ., dissent.


text:
    No. 5816.
    Ward v. The State.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Licking county.

      Wilby ds Wald, for plaintiff in error. ■

      8. M. Iiunter; Thomas W. Phillips and D. L. Sleeper, for defendant in error.
   Judgment affirmed on authority of The State v. Hutchinson, 56 Ohio St., 82.


text:
    No. 5858.
    Robinson v. The State.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Fayette county.

      Harper da Harper, for plaintiff in error.
    <7. A. Reid, Prosecuting Attorney, and Hidy & Sanderson, for defendant in error.
   Judgment affirmed.

Williams J., not sitting.


text:
    No. 5879.
    The State v. Cole.
    (Decided April 26, 1898.)
    Error to the Circuit Court of Crawford county.

      P. W. Poole, Prosecuting Attorney, and E. B. Finley, Assistant Prosecuting Attorney, for plaintiff in error.

      Dan Babst, Jr. and A.' Wickham, for defendant in error.
   Judgment affirmed.


text:
    No. 5076.
    Lambert et al. v. Troy Bending Company.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Darke county.

      Theodore Shookney and Rater dk Robeson, for plaintiffs in error.

      Thomas & Thomas; J. I. Allread and John Riley Knox, for defendant in error.
   Judgment affirmed.


text:
    No. 5109.
    Board of Education v. Board of Education.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Monroe county.

      Mg Gammon c& Ketterer, for plaintiff in error.
    Mallory, Jeffers <& Sears, for defendant in error.
   On consideration whereof, it is ordered and adjudged by this court proceeding to render the judgment which said circuit court should have rendered, it is ordered and adjudged' that the judgment of said court of common pleas in favor of The Board of Education of Washington Township be modified by reducing it to the sum of one hundred and twenty-three dollars, as of the date of said original judgment in the court of common pleas, and that said defendant in error recover that sum with interest thereon from said date, and that each party pay half the costs in this court and in the circuit court.


text:
    No. 5117.
    O’Connell v. General Electric Company.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Franklin county.

      G. J. Marriott; 8. M. Boss and J. II Anderson, for plaintiff in error.

      A. B. Johnson and A. J. Greene, for defendant in error.
   Judgment affirmed.


text:
    No. 5119.
    Cookman et al. v. Welsh.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Franklin county.

      G. J. Marriott, for plaintiffs in error.

      G. F. Castle and H. F. Bradley, for defendant in error.
   Judgment affirmed.


text:
    No. 5121.
    Silberman v. Corrigan et al.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      W. G. Bogers and Ed. 8. Meyer, for plaintiff in error.

      Orestes G. Pinney and Foran <& Bawley, for defendants in error
   Judgment affirmed.


text:
    No. 5122.
    Railway Company v. Jamison, an Infant, etc.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Tuscarawas county.

      J. Dunbar, for plaintiff in error.

      T. H. Loller, for defendant in error.
   Judgment affirmed.


text:
    No. 5124.
    McNeal et al. v. Ross.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Darke county.

      Theodore Bhochney; R. M. Dole and Sater & Robeson, for plaintiffs in error.

      George A. Jobes and Anderson c& Bowman., for defendant in error.
   Judgment affirmed on authority of Manuel et al. v. Manuel, 13 Ohio St., 458.


text:
    No. 5133.
    Kear v. Garrison et al.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Scioto county.

      A. T. Rolcomb and Duncan Livingstone, for plain* tiff in error.

      Jonathan 8. Dodge, for defendants in error.
   Judgment affirmed.


text:
    No. 5206.
    Dice et al. v. Draper, Treasurer.
    (Decided May, 3, 1898.)
    Error to the Circuit Court of Scioto county.
    IE W. Evans and Dunoan Livingstone, for plaintiffs in error.

      A. G. Woodrow, City Solicitor, and J. W Bannon, for defendant in error.
   Judgment affirmed.


text:
    No. 5207.
    Lawson v. Draper, Treasurer.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Scioto county.
    IE W. Evans and Dunoan Livingstone, for plaintiff in error.

      A. G. Woodrow, City Solicitor, and J. W. Ban-non, for defendant in error.
   Judgment affirmed.


text:
    No. 5208.
    McFarland et al. v. Draper, Treasurer.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Scioto county.
    IE W. Evans and Dunoan Livingstone, for plaintiffs in error.

      A. O. Wood/row, City Solicitor, and J. W. Bannon, for defendant in error.
   Judgment affirmed.


text:
    No. 5209.
    McFarland et al. v. Draper. Treasurer.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Scioto county.
    27. W. Evans and Duncan Livingstone, for plaintiffs in error.

      A. G. Woodrow, City Solicitor, and J. W. Bannon for defendant in error.
   Judgment affirmed.


text:
    No. 5210.
    McFarland et al. v. Draper, Treasurer.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Scioto county.
    27. W Evans and Duncan Livingstone, for plaintiffs in error.

      A. G. Woodroio, City Solictor, and J. T7. Bannon, for defendant in error.
   Judgment affirmed.


text:
    No. 5211.
    Jefferson v. Draper, Treasurer.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Scioto county.
    27 W. Evans and Duncan Livingstone, for plaintiff in error.

      A. G. Woodo'ow, City Solicitor, and J. W. Bannon, for defendant in error.
   Judgment affirmed.


text:
    No. 5501.
    Miller et al. v. Ryan et al.
    (Decided May 3, 1898.)
    Error to the Circuit Court of Hamilton county.

      S. A. Miller and Gustav Tafel, for plaintiffs in error.

      Thomas McDougall and Harmon, Colston, Goldsmith <& Hoadley, for defendants in error.
   Judgment affirmed.


text:
    No. 5024.
    Holcomb, Admr., v. Gibson, Admx., et al.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Scioto county.

      Thompson <& Newman, for plaintiff in error.

      J. J.Ha/rper; T. C. Anderson; Ha/rry Ball; Evans <& Livingstone and Harry W. Miller, for defendants in error.
   Judgment affirmed.


text:
    No. 5125.
    Railroad Company v. Woods.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Ashtabula county.

      S. E. Williamson and Theodore Hall, for plaintiff in error.

      Hoyt & Munsell; George A. Allen and L. Bosenzweig, for defendant in error.
   Judgment affirmed.


text:
    No. 5126.
    Myers, Admr., v. Connecticut Mutual Life Insurance Company.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Wayne county.

      Alfred J. Thomas; IT. B. Smith and John O. MeClarren, for plaintiff in error.

      Jenner, Jenner <& Weldon, for defendant in error.
   J udgment affirmed.


text:
    No. 5137.
    Miles v. Halley.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Franklin county.
    A. J. Greene, for plaintiff in error.

      Frank P. Jackson, for defendant in error.
   Judgment affirmed.


text:
    No. 5138.
    Martin v. Saint et al.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Miami county.

      James Knight and II. H. Williams, for plaintiff in error.

      J. A. Davy, for defendants in error.
   Judgment affirmed.


text:
    No. 5203.
    Ohio Farmers’ Insurance Company v. Kumnick.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Williams county.

      Zee Elliott and Pott&t' ds Emery, for plaintiff in error.

      John M. Galkins and Bowersox <& Starr, for defendant in error.
   Judgment affirmed.


text:
    No. 5204.
    Gardner v. State ex rel. Perin.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Sandusky county.

      Richards & Heffner and M. B. Lemmon, for plaintiff in error.

      George Kinney and M. L. Shackelford, for defendant in error.
   Judgment affirmed.


text:
    No. 5221.
    Gilchrist, Receiver, v. Stocking.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Gilbert <& Hills, for plaintiff in error.

      Kline, Oarr, Tolies d? Goff, for defendant in error.
   Judgment affirmed.


text:
    No. 5990.
    State ex rel. Addyston Pipe & Steel Company v. City of Cleveland et al.
    (Decided May 10, 1898.)
    Mandamus.

      Webster, Angel & Cooh and Paxton, Warrington <& Boutet, for plaintiff.

      M. G. Horton and Burke <& Ingersoll, for defendants.
   Demurrer sustained and petition dismissed.


text:
    No. 5129.
    Girard Fire and Marine Fire Insurance Company v. Boyle.
    (Decided May 17, 1898.)
    Error to the Circuit Court of Lawrence county.

      Lot Davis and Jed B. Bibbee, for plaintiff in error.

      W. D. Corn and J. 0. Yates, for defendant in error.
   Judgment affirmed.


text:
    No. 5139.
    Tillinghast et al. v. Stetzer et al.
    (Decided May 17, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      John 0. Winship, for plaintiffs in error.

      T. S. Dunlap and Arnold Green, for defendants in error.
   Judgment affirmed.


text:
    No. 5141.
    Railway Company v. Hogle.
    (Decided May 17, 1898.)
    Error to the Circuit Court of Delaware county.

      Squire, Sanders da Denypsey and J. S. Jones & Sons, for plaintiff in error.

      Marriott da Wickham, for defendant in error.
   Judgment affirmed.


text:
    No. 5142 to 5200 inclusive.
    Kelley et al. v. Kerns et al. and divers other Defendants.
    (Decided May 17, 1898.)
    Error to the Circuit Court of Lawrence county.

      A. C. Thompson; H. S. Neal; John Hamilton and F. N. Boss, for plaintiffs in error.

      J. W. Bannon; A. B. Johnson; F. F. Williams; Corn da Yates and John M. Walsh, for defendants in error.
   Judgment affirmed.


text:
    No. 5239.
    Watkins et al. v. Citizens Bank.
    (Decided May 17, 1898.)
    Error to the Circuit Court of Scioto county.

      J. F. McNeal da Sons, for plaintiffs in error.

      Nash da Lentz; Thompson da Newman; W Z. Davis and L. C. Addison, for defendant in error.
   Judgment affirmed.


text:
    No. 5240.
    Watkins et al. v. Citizens Bank.
    (Decided May 17, 1898.)
    Error to the Circuit Court of Scioto county.

      J. F. McNeal <& Sons, for plaintiffs in error.

      Nash da Lentz; Thompson da Newman; W. Z. Davis and L. G. Addison, for defendant in error.
   Judgment affirmed.


text:
    No. 5241.
    Watkins et al. v. Citizens Bank.
    (Decided May 17, 1898.)
    Error to the Circuit Court of Scioto county.

      J. F. McNeal da Sons, for plaintiffs in error.

      Nash da Lentz; Thompson da Newman; W. Z. Davis and L. G. Addison, for defendant in error.
   Judgment affirmed.


text:
    No. 5252.
    State ex rel. Marion Shovel Company v. Guthery, Auditor.
    (Decided May 17, 1898.)
    Mandamus.

      J. A. Wolford; W. E. Scofield and J. K. Richards, for plaintiff.

      J. B. Jones, for defendant.
   Demurrer to answer sustained- and peremptory writ awarded.


text:
    No. 5884.
    State ex rel. Attorney General v. Leeper, Auditor.
    (Decided May 17, 1898.)
    Quo Warranto.

      F. 8. Monneit, Attorney General, and W. Stilwell, lor plaintiff.

      Sam H. Nicholas; L. R. Gritchfleld; John Mc-Sweeny; Reed <& Hanna and H. R. Smith, for defendant.
   Demurrer sustained and petition dismissed on authority of The State ex rel. v. McLain, Sheriff, ante 313.


text:
    No. 5977.
    Davis v. Village of Norwood et al.
    (Decided May 17, 1898.)
    Error to the Circuit Court of Hamilton county.

      Frederick Hertenstein, for plaintiff in error.

      W. E. Bundy and Edward Barton, for defendants in error.
   Judgment affirmed.


text:
    No. 5078.
    Clark et al. v. Elliott.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Licking county.

      J. B. Jones, for plaintiffs in error.

      Nibler & Kibler, for defendant in error.
   Judgment affirmed.


text:
    No. 5084.
    Bicknell et al. v. Didway et al.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Hancock county.

      Boss <& Kinder, for plaintiffs in error.

      John Poe, for defendants in error.
   Judgment affirmed.


text:
    No. 5131.
    Royal Insurance Company v. Sockman.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Wood countjc

      James <£¡ Bever stock and Paxton, Wa/rrington <& Boutet, for plaintiff in error.

      Parker & Fries, for defendant in error.
   Judgment affirmed.


text:
    No. 5218.
    Railway Company et al. v. Powell in Behalf.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Wood county.

      King c& Tracy and Parker A Fries, for plaintiffs in error.

      Bodge & Canary and James C. Troup, for defendant in error.
   Judgment affirmed.


text:
    No. 5220.
    Northwestern Ohio Natural Gas Company v. Simon.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Wood county.

      Doyle & Leiois and Troup & Dunn, for plaintiff in .error.

      George H. Phelps and Baldwin & Harrington, for defendant in error.
   Judgment affirmed.


text:
    No. 5231.
    Tucker v. Board of Education.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Licking county.

      8. M. Hunter and Chandes H. Follett, for plaintiff in error.

      John David Jones and Waldo Taylor, ior defendant in error.
   On consideration whereof this court being of opinion that the evidence of the declarations of the superintendent and janitor were incompetent, and that it was error for the court of common pleas to admit the same in evidence at the trial, the said judgment of the circuit court, reversing the judgment of the common pleas is affirmed on the grounds above stated. This court finds that there is no other error in the record and judgment of the court of common pleas.

Judgment affirmed.


text:
    No. 5243.
    Sparks v. Murphy et al.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Hancock county.

      II. F. 'Burket and George H. Phelps, for plaintiff in error.

      John Poe and Pendleton d? Whiteley, for defendants in error.
   Judgment affirmed.


text:
    No. 5244.
    Canfield v. Swank et al.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Hancock county.

      H. F. Burket and George H. Phelps, for plaintiff in error.

      John Poe, for defendants in error.
   Judgment affirmed.


text:
    No. 5248.
    Royal Insurance Company v. Sockman.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Wood county.

      James c& Beverstoek and Paxton, Warrington & Boutet, for plaintiff in error.

      Parker <& Fries, for defendant in error.
   Judgment affirmed.


text:
    No. 5255.
    Keil v. Thomas.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Allen county.

      Brotherton dá Brotherton, for plaintiff in error.

      O. W. Smith and J. G. lamison, for defendant in error.
   Judgment affirmed.


text:
    No. 5256.
    Schmidt v. Trebein.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Greene county.

      Charles IL Kyle and F. P. Cunningham, for plaintiff in error.

      Little dá Spencer, for defendant in error.
   Judgment affirmed.


text:
    No. 5257.
    Davis, Admr. v. Anderson.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Allen county.

      L. B. Longsioorth, for plaintiff in error.

      Bidenour dá Half hill, for defendant in error.
   Judgment affirmed.


text:
    No. 5260.
    Day et al. v. Berry et al.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Belmont county.

      Danford da Danford and Bees da Hollingsworth, for plaintiffs in error.

      Tallman da Armstrong, for defendants in error.
   Judgment affirmed.


text:
    No. 5266.
    Purdy v. Marshall.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Brown county.

      Young da Barnes and White da Campbell, for plaintiff in error.

      John Q. Waters and Eli B. Parker, for defendant in error.
   Judgment affirmed.


text:
    No. 5402.
    Athey et al. v. Cooper.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Wilcox da Collister, for plaintiffs in error.

      Willson <& Da/oid, for defendant in error. •
   Judgment reversed by consent and cause remanded.


text:
    No. 5550.
    City of Cleveland v. Gorman.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Miner 6-. Norton and Torch, Boyd <& Growl, for plaintiff in error.
    Kerruish, Gha/pman <& Kerruish, for defendant in error.
   Judgment affirmed,


author: Spear, C. J.,

text:
    No. 5792.
    Morris v. The State.
    (Decided May 24, 1898.)
    Error to the Circuit Court of Franklin County.

      Merrick <& Tompkins and S. C. Jones, for plaintiff in error.

      Charles W. Voorhees, Prosecuting Attorney; Florizel Smith; Joseph II. Dyer and WilUam J. Ford, for defendant in error.
   Judgment affirmed.

Spear, C. J.,

dissents on the ground that a jury, eleven of whom sat as jurors in the trial and conviction of another charged with the stealing of the same goods, and necessarily involving testimony in the main identical with that in the case about to be tried, is not an impartial jury within the meaning of our constitution.


text:
    No. 5228.
    Stewart et al. v. Kline, Admr., et al.
    (Decided June 7, 1898.)
    Error to the Circuit Court of Hamilton county.

      J. 0. Ha/rper and J. TJ. Brannan, for plaintiffs in error.

      James E. Bobinson and MilUkin, Shotts <& MilUkin, for defendants in error.
   Judgment reversed and judgment for plaintiffs in error.


text:
    No. 5229.
    Railroad Company et al. v. Molt, Admx.
    (Decided June 7, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      Miner G. Norton; Phillips, Ford ds Growl and Squire, Sanders ds Dempsey, for plaintiffs in error.

      J. M. Jones and W. G. McFarland, for defendant in error.
   Judgment affirmed.


text:
    No. 5425.
    Kelley et al. v. Ohio Oil Company et al.
    (Decided June 7, 1898.)
    Error to the Circuit Court of Hancock county.

      A. Blackford and George H. Phelps, for plaintiffs in error.

      John Poe and M. F. Elliott, for defendants in error.
   Judgment affirmed.


text:
    No. 5259.
    Thompson & Richards v. Beery.
    (Decided June 7, 1898.)
    Error to the Circuit Court of Allen county.

      Gable da Parmenter and Stillings <& Stillings, for plaintiffs in error.

      Motter & Mackenzie, for defendant in error.
   Judgment affirmed.


text:
    No. 5264.
    American Lamp and Brass Company v. Baldwin.
    (Decided June 7, 1898.)
    Error to the Circuit Court of Lucas county.

      W. H. A. Bead, for plaintiff in error.

      A. Farquharson, for defendant in error.
   Judgment affirmed.


text:
    No. 5278.
    McBeth v. Richey.
    (Decided June 7, 1898.)
    Error to the Circuit Court of Brown county.

      McBeth & Harrison and S. H. Stevenson, for plaintiff in error.

      II. B. Whiteman and Young <& Barnes, for defendant in error.
   Judgment affirmed.


text:
    No. 5297.
    Aldrich et al. v. Endsley et al.
    (Decided June 7, 1898.)
    Error to the Circuit Court of Defiance county.

      Harris d¡ Garrieron and Hubba/rd da Hookman, for plaintiffs in error.

      H B. Peaslee, for defendants m error.
   Judgment affirmed.


text:
    No. 5289.
    Railroad Company v. Read.
    (Decided June 14, 1898.)
    Error to the Circuit Court of Tuscarawas county.

      J. M. Lessiok and Healea da Greene, for plaintiff in error.

      Bailey da Houthitt, for defendant in error.
   Judgment affirmed.


text:
    No. 5307.
    Kendall v. Cook.
    (Decided June 14, 1898.)
    Error to the Circuit Court of Greene county.

      M. J. Hartley, for plaintiff in error.

      J. A. Cook, for defendant in error.
   Judgment affirmed.


text:
    No. 5310.
    Myers v. Rodgers, McDonald & Company.
    (Decided June 14, 1898.)
    Error to the Circuit Court of Franklin county.

      M. B. Ea/rnhart, for plaintiff in error.

      Donaldson do . Tussing, for defendants in error.
   Judgment affirmed.


text:
    No. 5712.
    Henkel v. City of Cincinnati.
    (Decided June 14, 1898.)
    Error to the Circuit Court of Hamilton county.

      Donaldson & Tussing and Louis J. and Charles F. Dolle, for plaintiff in error.
    ■ Ellis G. Kinkead and John V. Campbell, Corporation Counsel, for defendants in error.
   Judgment affirmed on authority of Cleveland v. Wick, 18 Ohio St., 304.


text:
    No. 5789.
    Bricker v. Elliott, Admr.
    (Decided June 14, 1898.)
    Error to the Circuit Court of Knox county.

      John Adams and J. B. Waight, for plaintiff in error.

      Charles R Follett and Critohfield do Graham, for defendant in error.
   On consideration whereof, the court find that there is error therein apparent on the record to the prejudice of plaintiff in error in this, to-wit, the circuit court found and adjudged that there was due the defendant in error from the plaintiff in error as the proportionate share of Indiana Bricker in the insurance fund mentioned by the parties in their respective pleadings, the sum of $500 with interest from the 20th day of July, 1883, up to the first day of the term of said circuit court at which judgment was rendered, to-wit, October 5, 1897. Whereas said finding and judgment, in respect to said insurance fund, should have been that there was due the defendant in error from the plaintiff in error, as the distributive share of Indiana Bricker in said insurance fund, the one-half only thereof less the premium paid, to-wit, the sum of $357.50, with interest thereon from the 20th day of July, 1883, to the 5th day of October, 1897, amounting to the sum of $674.77, instead of $926.25, as found by the circuit court. And the court finds that there is no other error apparent on the record and proceedings, in said case. The court finds that the judgment of said circuit court in favor of the defendant in error and against the plaintiff in error should have been for $2,230.55 instead of $2,482.03, and this court in proceedings, by consent of parties, to render the judgment that the circuit court should have rendered in said case, found, determined, considered and adjudged, that the defendant in error recover from the plain tiff in error the sum of $2,230.55, with interest thereon since the 5th day of October, 1897, and that the defendant in error recover from the plaintiff in error his costs in this case made in the court of common pleas and in the circuit court taxed at $-, and that plaintiff in error pay his own costs in said courts, and that each of said parties pay one-half the costs of this case in this court taxed at $-.

It is further ordered that this case be remanded to the circuit court of Knox county, for execution.


text:
    No. 5859.
    State ex rel. Guilbert, Auditor, v. Hailliday, Auditor.
    (Decided June 14, 1898.)
    In Mandamus.

      F. 8. Monnett, Attorney-General, for plaintiff.

      G. W. Voorhees, for defendant.
   Demurrer to interrogatories sustained.


text:
    No. 5102.
    Frederick v. City of Columbus.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Franklin county.

      J. T. Holmes; F. A. Davis and Gyrus Huling, for plaintiff in error.

      8elwyn N. Owen; F. O. Irvine and Charles I. Pretr¿man, for defendant in error.
   Judgment affirmed on the authority of Frederick, Admx., v. Columbus, ante 538.


text:
    No. 5316.
    State ex rel. Watkins v. Frame, Auditor.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Athens county.

      G. B. Pierce, for plaintiff in error.

      Wood <& Wood; Grosvenor, Jones da Worstell and Sleeper, Sayre da Dmis, for defendant in error.
   Judgment affirmed.


text:
    No. 5319.
    Search v. Anselment.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Marion county.

      W. Z. Davis, for plaintiff in error.

      G. E. Mouser and Scofield, Durfee da Scofield, for defendant in error.
   Judgment affirmed.


text:
    No. 5325.
    Foehl et al. v. White.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Tuscarawas county

      John S. Graham and Welty da Albaugh, for plaintiffs in error.

      M. V. Beam and J F. Wilkin, for defendant in error.
   Judgment affirmed.


text:
    No. 5329.
    Henne, Guardian, v. Snell et al.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Darke county.

      Elliott & Ghenoweth and Anderson & Bowman, for plaintiff in error.

      A. G. Bobeson, for defendants in error.
   Judgment affirmed.


text:
    No. 2240.
    State ex rel. Attorney General v. Railroad Company.
    (Decided June 24, 1898.)
    Quo Warranto.

      F. 8. Monnett, Attorney General, for plaintiff.
    Harrison, Olds <& Henderson, for defendant.
   Judgment of ouster. By consent costs to be paid by relator.


text:
    No. 5813.
    State ex rel. Attorney General v. Vickers.
    (Decided June 24, 1898.)
    Quo Warranto.

      F. 8. Monnett, Attorney General, and Henry Bannon, for plaintiff.

      Leonard W. Goss ; Anselm T. Holcomb and Frank B. Mnney, for defendant.
   Judgment for defendant on the ground that a superintendent of schools is not an officer.

Minshall, J., dissents.


text:
    No. 5988.
    State ex rel. Attorney General v. McMaken.
    (Decided June 24, 1898.)
    Quo Wabbanto.

      F. 8. Monnett, Attorney General; J. W. Warring-ton; James E. Neal; W. 8. Giffin and Daniel J. By an for plaintiff.

      Morey, Andrews & Morey; George K Nash; John A. McMahon; George B. Ohey and Millikin, Shotts d¡ Millikin,for defendants.
   Demurrer to answer overruled and judgment for defendants.

Shauck, J., dissents.


author: Speab, G. J. Bradbury, J. Burket, J. Minshall J.

text:
    No. 6043.
    State ex rel. Attorney General v. Ratterman et al.
    (Decided June 24, 1898.)
    Quo Wabbanto.

      F. 8. Monnett, Attorney General; John Warring-ton; J. B. Foraker; W. M. Arrvpt and Daniel J. Byan, for plaintiff.

      Follett da Kelley; Peck da Shafer and Goebel da Bettinger,!or defendants.
   Demurrer to answer overruled and judgment for defendants.

Speab, G. J.

I concur in the judgment rendered for the reason that the main objections to the statute, and the only ones presenting difficulty, are answered by previous decisions of this court, and especially by the case of the State ex rel. v. Smith, 48 Ohio St., 211.

Bradbury, J.

I do not concur in the decision reached by the court in so far as it may be regarded as sanctioning the doctrine that the general assembly may require that a mayor of a city of the first grade of the first class, in appointing a board of city affairs, at the first appointment of such members, shall designate “two each of different political parties ” to serve “one year,” “two each of different political parties for two years, and two each of different political parties for three years.” * * *

The general assembly, in my opinion, is without power to make affiliation with some recognized political party an essential qualification for an appointment to an official position even in a municipal corporation. Discrimination in favor of or against any elector, in this respect founded on political belief or adhesion to a political party violates the principles on which our government rests, and it seems to me this is clearly attempted in the statute just recited.

Nor should the case of the State ex rel. v. Smith, 48 Ohio St., 211, be regarded as authority in support of that power. The syllabus does not announce the existence of such power in the n eral assembly, neither was the question discussed in the body of the opinion. I concurred in the decision in that case, but, in thus concurring, did not suppose that the court was committed to any proposition not found in the syllabus. .

I then had doubts whether the question of the power of the general assembly to thus restrict the mayor in his right of selection was raised by the record in that case. The same doubt arises as to the effect of the record in that respect in this case.

It seems to me that the only ground upon which it can be successfully claimed that the constitutionality of this restriction arose in the record in the case of the State ex rel. v. Smith, 48 Ohio St., 211, or arises in this case, is the assum ption that this restriction is so interwoven with the scheme of government with which it is connected as to constitute an essential part of that scheme, the whole of which must stand or fall together.

If it is not so connected, if the scheme of government in all other respects may be segregated from these restrictive provisions, and in those other respects is in harmony with our constitution and therefore valid, then the title of the defendants to their offices would be valid, although theseprovisions were invalid. This would be so, because if an invalid provision of a statute may be separated from its other parts, the latter part will stand, notwithstanding the fall of the invalid provision.

If the scheme of government is thus severable, the question under discussion would not arise in this action, because the only legal object it seeks to obtain is a judgment of this court respecting the title of the defendants to their offices. That title depends upon the power of the mayor to ap. point them, and if he has this power, the appointment is not invalid because he chose them from the classes prescribed by the statute. Surely if the mayor, whether bound by the restrictive provisions of the statute or not, chose to pursue the policy therein prescribed, and appointed such persons only as fell within the classes designated, nobody can be heard to complain. Whether legally bound by .this provision or not, he may rest under what he conceives to be a moral obligation, to obey it and thus be impelled to follow the wishes of that body which clothed him with the power of appointment. This course is unobjectionable and if he follows it taking his appointees from the classes thus designated, the title of such appointee is perfect, because they are eligible whether the restrictions are valid or not. If therestrictionswere binding on him such appointees were eligible because within the classes which the statute named. If the restrictive statute was invalid, they were nevertheless eligible, because .every elector was eligible, and they were electors.

If, however, the mayor, in making an appointment should disregard these restrictions and appoint some one who is excluded by the law, and thereupon the title of such appointee to the office should be challenged by proceedings in quo warranto, then the question of the legality of the restrictions would at once arise ; for, if such restrictions were valid, the title of such appointee would be invalid because he would not have been taken from the class prescribed by these restrictive provisions. •

These observations would not have been made but for the fact that eminent counsel have interpreted the case The State ex rel v. Smith, 48 Ohio St., 211, as approving, if not directly announcing, the doctrine that the legislature has power to make eligibility to hold office by appointment, depend upon party affiliation and the decision in this case may receive a like interpretation. I neither concur in that interpretation of the decision, nor in the doctrine itself; for in my opinion the title of an appointee to a public office, even in a municipal corporation, cannot, by virtue of any statute that the legislature may enact, be attacked or questioned on the ground that he belongs to a particular politi - cal party or because he does not belong to any such party at all; nor do I think this court has committed itself to a contrary doctrine.

Shauck, J., dissents.

Burket, J.

I dissent from the judgment, for the reason that the requirement of the statute, that the members of the board shall be appointed from different political parties, is in conflict with section 1 of article 5, and section 4 of article 15, of the constitution.

Minshall J.

I have. no apology to make for the decision. I think it is rightly decided on principle. But, if it were otherwise, it is dictated by the force and effect of numerous previous decisions of this court.


text:
    No. 5118.
    Powell & Company v. Benster.
    (Decided June, 25, 1898.)
    Error to the Circuit-Court of Lucas county.

      E. W. Tolerton, for plaintiffs in error.

      Ewrd, Brumback <& Thatcher, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.


text:
    No. 5873.
    Thompson v. Public Library Board of Cleveland et al.
    (Decided June 25, 1898.)
    Error to the Circuit Court of Cuyahoga county.

      BlandÁn <& Bice, for plaintiff in error.

      Phillips <& Phillips, for defendants in error.
   Judgment affirmed.

Shauck, J., dissents.


text:
    No. 5881.
    State ex rel. Attorney General v. Molyneaux et al.
    (Decided June 25, 1898.)
    Quo Warranto. On rehearing.

      Frank 8. Monneti, Attorney General; Burke <& Ingersoll; Herrick & Hopkins; H M. Farnsworth and Morton W. Cope, for plaintiff.

      P. H. Kaiser, County Solicitor; Minor G. Norton, Corporation Counsel, and Lawrence & Estep, for defendants.
   Demurrer to answer sustained and judgment of ouster.


text:
    No. 6114.
    State ex rel. Pugh et al. v. Guilbert, Auditor.
    (Decided June 25, 1898.)
    Mandamus.

      David F. Pugh and Edward Kibler, for plaintiffs.

      F. 8. Monnett, Attorney General, for defendant.
   Demurrer to answer sustained and writ awarded on authority of The State ex rel. v. Oglevee, 37 Ohio St., 1. The amount to be paid out of general revenue fund.


author: Burket, J.

text:
    Phillips, Exr., v. McConica, Guardian.

      Action to recover money — Paid by executor under mistake of law— Adopted child can not save a legacy from lapsing — Sections 5971 and 3140 Revised Statutes.

    1. An action to recover back money paid out by an executor upon distribution, by mistake, is properly brought in the name of such executor in his official capacity.
    2. Money voluntarily paid by an executor, upon distribution to one not entitled to receive the same, under a mistake of bis rights and duties as executor, there being no mistake of fact, can not be recovered back.
    3. When a legatee dies before the testator, the legacy lapses unless such legatee was a child or other relative of the testator, and left issue surviving the testator as provided in section 5971, Revised Statutes. An adopted child is not such issue.
    4. An adopted child is enabled by section 3140, Revised Statutes, to inherit from its adopter, but not through him, from his ancestors.
    (Decided October 11, 1898.)

      Error to the Circuit Court of Morrow county.
    On the eighth dajr of August, 1895, William L. Phillips, as executor of the last will and testament of Thomas H. Madden, deceased, filed his petition in the court of common pleas of Morrow county against Myrtle S. McConica, as guardian of Mary R. McConica, a minor, which said petition is in the words and figures following:
    “Plaintiff says that Thomas H. Madden died on or about the twenty-first day of August, 1891, leaving a last will and testament, which said will was duly filed and admitted to probate by the probate court of Morrow county, Ohio, on the ninth day of September, 1891.
    That said will named plaintiff as the executor thereof, and that he was appointed by the said court on the ninth’ day of September, 1891, as executor of the last will and testament of the said Thomas H. Madden, deceased, and is now the duly qualified and acting executor of the said will of the said Thomas H. Madden, deceased, and brings this suit as such executor.
    That said will contained the following clause: ‘I hereby give and bequeath all the residue of my property of every description, moneys and credits, due me at my decease, or belonging to my estate, to be equally divided; one-half to the heirs of my daughter Refella, deceased wife of John McConica, namely: Wilbert, Thomas and Charles Mc-Conica, and Minnie McConica Fulton. ’
    That said Wilbert McConica died on or about the tenth day of October, 1888, leaving no heirs of his body.
    That the said Wilbert McConica, during his lifetime, and on or about the second day of May, 1888, in the probate court of Hancock county, Ohio, and under the laws of Ohio, legally adopted the said Mary McConica, an infant.
    That the said Myrtle 8. McConica was wife of the said Wilbert McConica at the time of his death, and was on or about the seventeenth day of December, 1891, by the probate court of Morrow county, Ohio, duly appointed guardian of the said infant, Mary McConica.
    That on the twenty-fourth day of December, 1891, under a mistake, towit: believing the said infant, Mary McConica, adopted as aforesaid, inherited the legacy of Wilbert McConica mentioned in that clause of the will set forth, plaintiff, as executor, as aforesaid, paid to said Myrtle S. McConica, as guardian of the said Mary McConica, the sum of $220.16. That he paid said money under a mistake of his rights and duties as executor, as aforesaid, and which he was under no legal or moral obligation to pay.
    Plaintiff further says that said infant, Mary McConica, had no right or color of title to said legacy, and the said Myrtle S. McConica, as guardian, as aforesaid, has no right in good conscience to retain the same.
    That plaintiff, on the twentieth day of April, 1893, and as soon as he discovered said mistake, demanded of the defendant a repayment of said sum to him, which demand defendant refused and still refuses and wrongfully and illegally withholds the same from this plaintiff.
    Wherefore plaintiff prays judgment against said Myrtle S. McConica, as guardian, as aforesaid, for the said sum of $220.16, the amount so paid, as aforesaid, with interest from the twentieth day of April, 1893, and 'for all proper relief.”

      To this petition the defendant below filed a demurrer on the ground, first, that the plaintiff had no legal capacity, as executor, to maintain the action ; and second, that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. The court overruled the demurrer, and the defendant below, not desiring to further plead, a judgment was rendered against the defendant below for the sum claimed in the petition; to all of which the defendant below excepted; and filed her petition in error in the circuit court, seeking to reverse the judgment ; and the circuit court, on hearing, reversed the judgment, on the ground that the court of common pleas erred in overruling the demurrer; and remanded the cause to the court of common pleas for further proceedings according- to law. Thereupon Mr. Phillips, the executor, filed his petition in this court, seeking- to reverse the judgment of the circuit court, and to have the judgment of the court of common pleas affirmed.

      McConica & Banker and 8. C. Kingman, for plaintiff in error.
    The testator wills the property in question to the “heirs of his daughter,” naming them, of whom “Wilbert,” the adopting father is one. As Wilbert died before the testator, and without issue, according to the manifest intention of the testator, the property would go to the other heirs of Refella McConica, named in the will. Section 5971 provides for the same manner of distribution. The word “issue” used in the statute, means a lineal descendent, or heir of the body. See definition of “issue,” Bouvier’s Law Dictionary and Anderson’s Dictionary of Law.

      Section 3140 makes the adopted child the heir of Wilbert McConica, in whom, owing to his death, the legacy never vested. The statute does not make the adopted child of Wilbert the heir of Wilbert’s mother, Refella McConica. The adopted child does not inherit from the ancestors of the adopting parent. Quigley v. Mitchell, 41 Ohio St., 375; White et al. v. Agnew, W. L. B., July 19, 1897, p. 47.
    The statute does not provide that the child shall inherit from any other person than the adopting parent. Upson v. Noble, 35 Ohio St., 655.
    This money was paid under the mistaken belief that an adopted child inherits the legacy to the adopting parent, and the fact that it does not so inherit makes the payment come within the rule laid down by Lord Mansfield in the case of Bize v. Dickason, (1 Term Report, 286), viz.: “Where money is paid under a mistake which there is no ground to claim, in conscience, it may be recovered back.” We find the doctrine here laid down adhered to and emphasized in the following leading cases: Lawrence v. Beaubein, 2 Bailey S. C., 623; Culbreath v. Culbreath, 7 Ga., 64; Northup v. Graves, 19 Conn., 548; Mansfield v. Lynch, 59 Conn., 320; Rogers v. Weaver, 5 Ohio, 536; Kerr on Frauds and Mistakes, 398.
    The money so paid by the executor to the guardian was of-a trust fund. If the person so receiving had no claim to it, it was in the nature of a gift; an essential condition of a gift is that the giver must have ownership to convey right or title.

      L. K. Powell and J. A. Garver, for defendant in error.
    If the executor distributes the estate he represents to parties not entitled to receive the same, he does not prejudice the estate nor the rightful distributees, but makes himself liable personally and on his bond, as such executor, to them for their rightful share of such estate on distribution. Abbott v. Cole, 5 Ohio, 87.
    He is personally responsible to the distributees and has .the corresponding right to recover personalky any amount wrongfully distributed. Rogers v. Weaver, 5 Ohio, 536; Gillmore v. Meeker, 1 W. L. M., 276; s. c. 2 Dec. R., 63.
    Section 3140 fixes the status of an adopted child to be “ to all intents and purposes the child * * * of the person so adopting him or her,” and if Mary R. McConica was “to all intents and purposes” the child of Wilbert McConica, was she not his “issue” within the meaning of section 5971?
    This does not conflict with the 41 Ohio St., 375, for Mary R. does not claim title to this fund by right of blood from Thomas H. Madden, but by virtue of the provisions of said section 5971. Gibson v. McNeely, 11 Ohio St., 131.
    Can money paid as recited in the petition be recovered back?
    It does not recite any mistake of faots. The allegation is that under a mistake of his rights he paid the money that he seeks to recover in this action. It shows a voluntary payment of money with knowledge of all the facts, hence it cannot be .recovered back. Mays v. Cincinnati, 1 Ohio St., 268; City of Marietta v. Slocomb, 6 Ohio St., 471; Railway Co. v. Iron Co., 46 Ohio St., 44; Burr v. Bates, 3 C. C., 1-7; s. c. 2 Ohio Circ. Dec., 1.
    An executor or administrator is in a better position to know his legal rights than one not acting in a trust capacity, because he can always invoke the judgment and direction of a court before acting. Revised Statutes, 6202 and authorities there cited.
    The payment alleged in the petition could not have been enforced by the defendant without giving the plaintiff his day in court, hence it was not compulsory, but voluntary. Revised Statutes, 6195; 6 Ohio St., 471.
    The petition does not even allege an order of distribution in the probate court for the payment of the money sued for, the probate court having exclusive jurisdiction to make such order. Revised Statutes, 524.
    Money voluntarily paid under mistake of law, in the absence of fraud or mistake of fact, cannot be recovered back. Kinkead’s Pleadings, vol. 2, p. 788, and authorities there cited; Kerr on Fraud and Mistake, 407, note 401; Bispham’s Equity, 187.
   Burket, J.

Ifc is urged by defendant below, . defendant in error here, that the plaintiff below had no legal capacity to maintain the action, because the executor is personally liable to the legal distributees for the money which came into his hands as such executor, and for the further reason that he can maintain an action in his own personal right for money of the estate wrongfully distributed, as held in Rogers v. Weaver, 5 Ohio Rep., 536. These considerations are not sufficient to cut off his right to maintain the action as executor. The money paid to the guardian was the money of the estate, and an executor is always a proper party to maintain an action to recover money belonging to the estate. Other existing remedies to recover money wrongfully paid out, do not exclude the remedy by action in the name of the executor.

It may be that the executor and his sureties, have become insolvent, and in such cases the only remedy that is effective and available to the proper distributees is by an action in the name of the executor. The action was, therefore, properly broug’ht in his name as executor.

The demurrer further raises the question as to whether the petition states facts sufficient to constitute a cause of action in favor of the executor against the guardian.

Wilbert McConica, the legatee, having adopted Mary McConica, an infant, by legal proceeding’s in the probate court, died without issue of his body, before the death of Thomas H. Madden, the testator. The legacy to Wilbert, therefore, lapsed unless Mary is to be regarded in law as the issue of Wilbert. Wilbert was the grandson of the testator, and section 5971, Revised Statutes, provides that when a devise of real or personal estate is made to any child or other relative of the testator, and such child or other relative shall die, leaving issue surviving the testator, such issue shall take the estate. The word “issue” in this section means child of the body, or heir of the body, of the deceased relative of the testator, and does not include a child adopted by such decedent. The issue in such case must be of the blood of the testator and of the deceased child or other relative by birth. Adoption does not make the adopted child of the blood of its adopter, nor of the blood of his ancestors.

True, section 3140, Revised Statutes, provides that such adopted child ‘1 shall be to all intents and purposes the child and legal heir of the person so adopting him, or her, entitled to all the rights and privileges, and subject to all the obligations of a child of such person, begotten in lawful wedlock. ” But this is far from providing that such adopted child shall be the issue of the adopter, and of his blood and of the blood of his ancestors.

It was well said in Upson v. Noble, 35 Ohio St., 658, that in passing the adopting statute “the legislature was dealing’ with personal rights and duties growing out of the relation of parent and child, by transferring them from the natural to the adopted relation.”

The statute enables the adopted child to inherit from its adopter, but not through him. The statute does not make the adopted child the heir of the ancestors of its adopter, and the right of the adopted child to inherit cannot be extended beyond where the statute has fixed it. The statute in this regard must be strictly construed, as held in 35 Ohio St., 658.

Adoption does not change the law of descent and distribution as to the property of the ancestors of-the adopter. Quigley v. Mitchell, 41 Ohio St., 375. The ancestors of the adopter are presumed to know their relatives by blood, and to have them in mind in the distribution of their estates, either by will or descent, but they cannot be expected to keep informed as to adoption proceedings in the probate courts of the counties of this state; and to allow an adopted child to inherit from the ancestors of the .adopter would often put property into the hands of unheard of adopted children, contrary to the wishes and expectations of such ancestors.

As Mary McConica, the adopted child, was not the issue of Wilbert, the legacy to him lapsed and the guardian of Mary was not entitled to receive the money that was paid to her as such guardian, by the executor on distribution of the estate, and the money should be returned to him by the guardian, unless there is some rule of law to prevent it.

The petition sets out that he believed that Mary inherited the legacy of Wilbert, and that he paid the money to the guardian under a mistake of his rights and duties as executor, and which he was under no legal or moral obligation to pay.

This states no mistake of fact, but of law. So far as the petition discloses, he knew all the facts, but was mistaken as to his rights and duties, that is, as to the law of the case. In Thompson v. Thompson, 18 Ohio St., 73, it was held by this court that “Mistake as to the law of descents, where the intention in making a deed was to vest the estate conveyed in the grantee, affords no ground for relief in equity.”

In Cincinnati v. Gas Light and Coke Co., 53 Ohio St., 278, this court held that “A payment made by reason of a wrong construction of the terms of a contract, is not made under a mistake of fact,' but under a mistake of law, and if voluntary cannot be recovered back.” The payment, as disclosed in the petition, was voluntary and not under duress, and not under mistake of fact, and in such cases the holdings of this court have been that no recovery can be had. Mays v. Cincinnati, 1 Ohio St., 268; City of Marietta v. Slocomb, 6 Ohio St., 471; Railway Co. v. Iron Co., 46 Ohio St., 44 ; Cincinnati v. Gas Light and Coke Co., 53 Ohio St., 278.

The executor had the right to obtain the judgment of the court as to the proper person to receive this money, as was done in Upson v. Noble, 35 Ohio St., 655; Revised Statutes, section 6202. But, knowing all the facts, he did not seek the direction of the court, but relying upon his own judgment, paid the money at his own peril. If he intended to litigate the matter he should have litigated before payment. It is now too late, unless he can show that he paid it under a mistake of fact, and this his present petition fails to show.

Judgment affirmed.