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dred acres, during her natural life. At the death of my said wife, the real estate aforesaid I give, devise and bequeath to my grandson, William Miller." The provision in lieu of dower also embraced a bequest to the wife of certain personal property. On the eighteenth day of November, 1850, the will was duly admitted to probate, and on the same day the widow of the decedent appeared in court, and made her statutory election to take under the will. The widow owned in fee simple a tract of eighty acres of land constituting a part of the farm mentioned in the will, which she acquired by inheritance, and of which she held possession until her death.

Held:

That upon the widow's election to take under the will, the grandson became entitled to an equitable estate in remainder in the eighty acres of land.

2. After the widow's election, she executed a warranty deed of the eighty acres to one J. F., and thereafter borrowed of an insurance company $4,000, and to secure the payment thereof mortgaged the premises to the company-the company having no actual knowledge, at the time of the execution of the will or of the widow's election to take under the same. The deed to J. F. was not placed on record for more than two years after its date, and more than one year after the execution and record of the mortgage.

Held:

That the probate of the will and the widow's election to take under the same, were not constructive notice to the mortgagee of the equitable interest of the grandson in the eighty acres of land, and that the mortgagee has the first and superior lien on the premises.

Judgment of the district court affirmed.

196. First National Bank of Gallipolis v. Wm. F. Butler.

District Court of Gallia County.

MARTIN, J.

Error to the

The owner of a domestic note left it with a bank for collection, and if not collected to fix the liability of an indorser. It not having been paid at maturity, the bank, according to a general usage of the place, handed it to a reputable notary for presentment and protest: Held, That the notary was the sub-agent of the owner, and the bank is not answerable for a default of the notary in making presentment for payment, whereby the liability of the indorser was released. Judgment reversed.

DICKMAN, J., dissenting.

227. The First National Bank of Mount Gilead, Ohio, v. Trimble's Assignee. Error to the District Court of Morrow County.

BY THE COURT.

1. The two years within which an action under section 5198 Revised Statutes of the United States, for double the amount of interest paid, must be brought, begins to run from the day on which the interest that included usury was actually paid.

2. The amount of the recovery is twice the amount of the whole interest so paid. It is not twice the amount of the usurious interest

3. If the payor of such interest, before action brought, was adjudged

a bankrunt, his assignee in bankruptcy became his "legal representative," and as such was entitled to bring the action. Crocker, Assignee v. Bank of Chetopa, 4 Dillon 358; Monongahela Nut. Bank v. Overholt, 96 Penn. St. 327; Gruy v. Bennett, 3 Met. 522. Judgment affirmed.

232. Otho Hardman et al. v. George Wilson, adm'r. Error to the District Court of Madison County.

BY THE COURT.

W. sued upon a note. The answer set up payments of usurious interest. The reply stated that the original loan was made upon a note for $1,500; that it was renewed several times. That after said payments of usury it was agreed by and between the payee and principal maker "that there should then be a final settlement and payment of said loan and interest, and that said loan should not be continued longer." But the said principal debtor "not then being ready to pay,” a new note for $1,500 (made by and payable to same parties as the original note) was delivered and accepted “in payment of said former notes and not in renewal thereof." This was the note sued on. The common pleas overruled a demurrer to this reply. Held: The reply did not describe “a complete settlement and liquidation between the parties and voluntary payment of interest" (12 Ohio 159) such as bars inquiry into and deduction of illegal interest. As stated it presented a plain attempt to evade the usury laws of the state, and the demurrer should have been sustained.

2. The cominon pleas rendered a judgment in January, 1879. The district court dismissed a petition in error in March, 1880. A second petition in error was filed in the same court. The dismissal of 1880 was pleaded in bar, and in March, 1881, this plea was sustained by a judgment of dismissal. In September, 1881, a petition in error was filed in the supreme court, asking the reversal, first, of the judgment of 1880, and second, of that of 1881.

Held: In the absence of any motion to this petition, all of it relating to the judgment of 1881 is treated as surplusage. The judgment of 1881 ceases to operate except as to its own costs, after the judgment of 1880 is reversed.

Judgment of district court and common pleas reversed.

248. Theresa Eisenberg v. Marx Albert. Error to the District Court of Belmont County.

BY THE COURT.

T. E., a wife, joined her husband in a mortgage of her separate real estate to secure a note made by the husband for his own debt. Without her consent the payee, for a valuable consideration, agreed to extend the time for the payment of the note for a year.

Held:

The wife's property occupied the place of a surety, and was released by said extension.

Judgment attirmed.

229. Socie v. Village of Nelsonville. Error to the District Court of Athens County. Judgment affirmed. No further report.

237. Pottenger v. Bailey et. al. Error to the District Court of Perry County. Judgment affirmed. No further report.

239. Jones v. Conley. Error to the District Court of Licking County. Dismissed for want of preparation.

245. Rice v. Rice et. al. Error to the District Court of Morrow County. Judgment affirmed. No report.

251. Brock et al. v. Hidy et al.

Error to the District Court of Fayette

County. Dismissed for want of preparation.

252. Homestead Building and Loan Association v. Continental Life Ins. Co. Error to the District Court of Fayette County. Dismissed for want of preparation.

255. Dawson et al. v. Bartholomew.

Error to the District Court of Mor

row County. Judgment affirmed. No report.

131. Burckhardt v. Fourth National Bank of Cincinnati. Error to the District Court of Hamilton County. Judgment affirmed. No report. 231. Starbuck et al. v. Brigel. Error to the District Court of Hamilton County. Dismissed for want of preparation.

ASSIGNMENTS FOR ORAL ARGUMENT

Wednesday, March 12.

139. Zimmerman v. Zimmerman.

200. Hanauer v. Cummings.

Wednesday, March 19.

116. Rutherford v. Brachman.

117. Harbine v. Bank of Xenia.

Wednesday, March 26.

129. B. & O. R. R. Co. v. Holgate. 159. B. & O. R. R. Co. v. Gibson.

Wednesday, April 9.

144. Brainerd et al. v. Elwell.

145. Brainerd et al. v. Moulton.

Wednesday, April 16.

137. Ohio Valley Insurance Company v. Kirk et al.

140. L. S. & M. S. R'y Co. v. Gates, administrator, etc.

Wednesday, April 23.

160. McGill, executor v. Williamson.

178. Harvey et al. v. Gardner et al.

Wednesday, April 30.

183. Clermont v. Irish Building Association.

194. Castle v. Ensign.

Wednesday, May-7.

195. Burt et al. v. Wilcox Silver Plate Co.

206. Peckham Iron Co. v. Harper et al.

Wednesday, May 14.

208. Keys v. Jacob D. Cox et al.

214.. Layman et al. v. Cunningham et al.

All cases up to No. 325 are called and should be ready as reached, unless further time be granted for cause on application. Sessions begin at 9 o'clock A. M.

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DIGEST OF CASES.

Assignment-Collateral Security.-1. A. made a general assignment for the benefit of creditors, but had previously assigned to part of his creditors "as collateral security" a claim against the city of Pittsburgh. The city never accepted or recognized the assignment, and paid the money due A. to his assignee, who distributed it generally amongst the creditors. Hel·, on appeal (reversing the court below and affirming the auditor's finding) that the holders of the assigned claim did not have a claim on the fund that could be enforced as against the general creditors. 2. To make an assignment valid, the assignor must not retain any control of the fund, any authority to collect it, or any power of revocation. The transfer must be of such a character that the fund holder can safely pay, and is compelled to do so, though forbidden by the assignor. 3. Upon the distribution of an assigned estate, a claimant upon the fund must claim by and through the asssignment. He cannot claim adversely to it. Geist's Appeal. Pa. Sup. Ct., Jan. 7, 1884. 14 Pittsb. Leg. Jour. 299.

Criminal Law-Confessions-Inducements.-Admissions of guilt made by a prisoner, under circumstances which induce him to believe that, whether true or false, it is to his interest to make them, are incompetent. People v. Wolcott. Mich. Sup. Ct., Oct. 24, 1883. 17 Rep. 275.

Foreign, Corporation-Power to Hold Land-Deed-Acknowledgment— Estoppel.-1. A corporation, even though it does little or no business in the state where it is organized, is not necessarily incapable of holding and dealing in land in another state. 2. A deed executed by a commission empowered to convey public land may be lawfully acknowledged by the commissioners after their authority has been revoked. 3. An unacknowledged deed is good against all persons having actual notice of its existence. 4. A valid deed does not become void because, by reason of the loss of a plat referred to therein, it has become difficult to define the boundaries. 5. The joint proprietors of a tract of land, who have accepted other land in exchange therefor, are estopped to deny the validity of a deed executed by a part of them only, on behalf of all, without power of attorney. New Hampshire Land Co. v. Tilton. U. S. C. C. D. of N. H., Jan. 11, 1884. 19 Fed. Rep. 73.

Fraud-Statute of Limitations--Constructive Fraud.-The statute which prescribes that an action for relief for fraud shall be brought within five years after discovery of the fraud, and that no action shall be brought after ten years from the perpetration of the fraud, applies as well to constructive as to actual fraud. Phillips v. Skipp. Ky. Ct. of App., Nov. 24, 1883. 17 Rep. 271.

Monthly Salary-Presumption as to Period of Employment-False Representations-Incompetency-Rescission.-There is a presumption of law that a person employed at a monthly salary is engaged by the mon'h, so that either party may terminate the contract at the end of any month, unless it affirmativ ly appears that a definite period of employment was contemplated by the parties to the contract. 2. A person who secures employment for a stated period by false and fraudulent representations may be dismissed at any time, and his employer my recover from him for any dumage sustained by reason of the deceit. 3. A person who, representing himself as competent to dischrage any duty, is employed for that purp›sɔ, mɩv be dismissedupon his incompetency being shown. Jones v. Vestry of Trinity Parish. U. S. C. C. W. D. of N. C. November Term, 1883. 19 Fed. Rep. 59.

Pardon-Political Disabililies.-The effect of a pardon granted by the governor of the commonwealth is to relieve the accused of the purishment annexed to the offense for which he was convicted, and of all penalties and consequences exc pt political disabilities, growing out of the conviction an 1 sentence. Elwards v. Commonwealth. Va. Sup. Ct. of App., Nov. 1883. 17 Rep. 286.

Patents-Sub-Combinations-Independent Patents-When a patent is issued for an invention consisting of a combination of a number of elements, and there is, at the same time, an invention made by the patentee consisting of a sub-combination of a part of the elements entering into the larger combination, and the patent issued does not embrace such sub combination, the inventor of both, at the same time, may afterwards obtain an independent patent for the sub-combination, provided, he applies therefor within two years after the invent on has gone into public use or been on sale. Cahn v. Wong Town On. U.S. C. C. D. of Cal., Feb. 4, 1884. 2 West Coast Rep. 7.

Sale-Warranty-Election-Demand.-The defendants sold a machine to plaintiff with warranty as to quality and capability, and upon the express written agreement that if it did not work as guaranteed it should be returned and a new machine given, or the notes given for the purchase price returned. The machine was returne I under the warranty. Held: That the defendants could elect either to give a now instrument or to return the notes, but tha', in default of election, the purchaser could recover his notes without previous demand. Turnbull v. Seymour. Minn. Sup. Ct., Nov., 1883. 17 Rep. 276.

Statute of Limitation3-New Promise.-Where there is no dispute as to the facts which go to prove an acknowledgment or new promise, the question is one of law for the court, but where there is any dispute, the quation is a mixed one of law and fact for the jury. Where there is an acknowledghent of indebte Iness, it will be taken to relate to the demand in Suit, and the burden is on the defendant to show that it related to another debt. Morrell v. Ferrier. Col. Sup. Ct., Dec., 1883. 4 Col. L. Rep. 377.

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