Statutes Construed, etc.

STATUTES CONSTRUED, ETC.-Continued.

points of law involved in the case, before the jury retire to consider of their
verdict. Hardy v. Turney, 400.

12. Defendant in bastardy is a competent witness under section 310 of the
code. Carter v. Krise, 402.

13. Section 604 of the code has reference to the forms of proceedings only,
and not to the competency of witnessess. Also, said section, in referring
to proceedings in bastardy, has reference to proceedings under the bastardy
act strictly, and not to proceedings to review them on error.
Former con-
struction to this effect recognized with approbation. Ib. 403, 404.
14. The act of February 2, 1824, for the maintenance and support of ille-
gitimate children (Swan's Rev. Stat. 124), is not punitive in its nature, but
is simply a remedy to enforce the discharge of a civil and moral duty.
Ib. 405.

15. The statute of March 14, 1853, "to provide for the reorganization, super-
vision, and maintenance of common schools" (Swan's Rev. Stat. 836), is a
law of classification and not of exclusion, providing for the education of
all youths within the prescribed ages, and the words "white" and "col-
ored," as used in said act, are used in their popular and ordinary significa-
tion. So that children of three-eighths African and five-eighths white
blood, but who are distinctly colored, and generally treated and regarded
as colored children by the community where they reside, are not, as of
right, entitled to admission into the common schools set apart under said
act, for the instruction of white youths. Van Camp v. Board of Education
of Village of Logan, 406.

16. The benefits of section 8 of the act of March 23, 1850, “to exempt the home-
stead of families from forced sale on execution," etc. (Curwen, 1520), extend,
and are confined, to a resident of Ohio, being the head of a family, and not the
owner of a homstead," and who is the owner of one or more of three classes
of chattels, to wit, mechanical tools, a team, and farming utensils, and
who is holding such articles of property, whether belonging to one or more
of these classes, in good faith for use as instruments of labor, and means
of support for himself and family. Burgess v. Everett, 425.
17. Statute of frauds and perjuries of February 19, 1810. Swan's Rev. Stat.
435. A mortgage is a conveyance within the statute. A conveyance
within the statute is void only as against creditors. Webb's Adm'r v. Roff
et al. 430.

18. Section 1 of the act of 1831, for the prevention of certain immoral prac-
tices. Swan's Rev. Stat. 302. Sabbath-breaking. Works of necessity
excepted, and indicates the policy of the state, as does the general prohibi-
tion of common labor on Sunday. City of Canton v. Nist, 441.
19. Section 33 of the act of May 3, 1852, to provide for the organization of
cities and incorporated villages (Swan's Rev. Stat. 964), authorizing muni-
cipal corporations to publish by-laws and ordinances, etc. Powers con-
ferred are expressly limited to such ordinances as are not inconsistent
with the laws of the state." And therefore, an ordinance prohibiting, under
a penalty, the opening of shops, etc., for the purpose of business, on Sun-
day, without excepting cases of necessity and charity, and without exemp
ting from its operation persons who conscientiously observe the seventh
day of the week as the Sabbath, being inconsistent with the laws of the
state, is void. Ib. 439-441.

20. Under the act of January 12, 1824, fixing the rate of interest (Swan's Rev.
Stat. 480c), it is incumbent upon a garnishee to show a cause to exempt
him from paying interest upon the debt due from him. A cause of exemp-
tion will not be presumed. Candee & Scribner v. Webster, 457.

21. Section 5 of the act of March 19, 1840, to restrain banks from taking
usury." Sufficiency of answer in setting up a defense under this section.
Gebhart et al. v. Sorrels et al. 461-463.

22. Where, prior to the school law of March 14, 1853 (Swan's Stat. 836), a

Statutes Construed, etc.

STATUTES CONSTRUED, ETC.-Continued.

school-district had been duly organized, consisting of parts of two adjoining
townships, such district was not severed by the operation of section one of
that law, but still continued a subdistrict under that act, until thereafter
dissolved, altered, or changed, as provided in section 16 of the same law.
Bryant v. Goodwin and Faxon, 471.

23. Whether such subdistrict could thereafter be dissolved, altered, or changed,
prior to the amendatory and supplemental act of April 17, 1857 (54 Ohio
L. 236, sec. 10), by the board of education of one township, without
the concurrence of the board of education for the other township-
quære. Ib.

24. Prior to the passage of said amendatory and supplemental act, no tax
could be imposed upon the portion of the subdistrict lying without the
township in which the school-house was located, for the purpose of pur-
chasing the site or erecting such school-house. Ib.

25. The board of education, in certifying the amount to be paid or borne ex-
clusively by the subdistrict, under section 23, of the estimated cost of pur-
chasing the site and erecting the school-house, may impose the entire esti-
mate and not merely a "portion" of it, if in their opinion the entire
amount is no more than its reasonable share of the burden of taxation
for such purposes, in comparison with the other subdistricts of the town-
ship. Ib.

26. Sections 380, 534, 535, and 538 of the code. The vacation of judgments
for irregularity on motion to the court where rendered. Knox County
Bank v. Doty et al. 507-510.

27. Section 137 of the code. A motion to vacate a judgment for irregularity
is a "proceeding" authorized by the code, and as such is amendable. Ib.
508.

28. Suit was brought on an instrument of the following tenor: "Due H. K., or
order, the sum of ninety-two dollars, on demand, value received." There
was no averment in the petition, nor proof on the trial, of a demand of
payment before suit brought. Held, that under the statute of 1824,"fixing
the rate of interest," the plaintiff was entitled to recover interest from the
date of the instrument. Darling v. Wooster, 517.

29. Section 137 of the code. Amending record after judgment. Doty, Hunt
et al. v. Rigour & Co. 523; Doty, Goodin et al. v. Rigour & Co. 526.
30. The act "authorizing county commissioners to grant further time for the
completion of free turnpike roads, and paying for the same," passed May 1,
1854 (52 Ohio L. 99), is not repugnant to the present constitution. Foster
v. The Comm'rs of Wood Co. 540.

31. Where a debtor, in contemplation of insolvency, makes an assignment of
property in trust to trustees, with the design to prefer one or more credit-
ors to the exclusion of others, such assignment, whether fraudulent or bona
fide, by virtue of the act of March 14, 1853, “declaring the effect of assign-
ments to trustees in contemplation of insolvency" (Curwen, 2239), is opera-
tive to pass title to the assignee, is not void, and can not rightfully be so
treated by creditors not embraced within its provisions. Floyd & Co. v.
Smith, 546.

32. Sections 3 and 4 of the act of February 28, 1846, "in relation to the inter-
est of husbands in the estate of their wives" (Swan's R. S. 712, 713).
Property of wife exempt from liability for debts of her husband. Pierson
v. Smith, 556.

33. In an action by the assignee of a chose in action against the administrator
of the debtor, the assignor is, under sections 310 and 313 of the code, a com
petent witness for the assignee to prove any of the material facts in the
case, including those which occurred before, as well as those which occurred
after, the decease of the debtor. Myers v. Walker's Adm'r, 558.

34. In a suit brought to recover the agreed price for twenty-five barrels of
whisky sold and delivered, there being no evidence that it was adulterated,

Statute of Frauds-Taxes.

STATUTES CONSTrued, etc.- -Continued.

and it appearing by the bill of exceptions, that up to and after the time
when the sale and delivery took place, no inspector had been appointed,
under the act of May 1, 1854, by the probate judge of the county in which
the vendor resided, and where the sale was made: Held, 1. That the omis
sion to have the whisky inspected does not, in such case, preclude the vendor
from recovering the price agreed to be paid. 2. That the penalties and
prohibitions of said act do not attach to a sale of spirituous liquors which
are pure, but not inspected, made before an inspector has been appointed
and qualified, under the law, in the county where the sale was made. Smith
v. Kibbee, 563.

35. A township board of education, organized under the general school law of
March 14, 1853, has the power, with the consent of the board of education
of a town district of the same township, organized under the act of Febru
ary 21, 1849, to make transfers to such district, of territory adjacent thereto,
and within the township. Canton Union School v. Meyer et al. 580.
36. Sections 1 and 2 of the act of April 17, 1857, securing to married women
such personal property as may be exempt from execution," etc. (54 Ohio
L. 219), and section 8 of March 27, 1858 (55 Ohio L. 23), amendatory of
the homestead law of March 23, 1850. Rights of wife, etc. Slanker v.
Beardsley, 589.

37. Section 577 of the code.
damus. The State, ex rel.
38. Section 1 of the act of
and recording of deeds," etc.
same sheet of paper, etc.
39. Section 60 of the act to incorporate the State Bank of Ohio does not con-
stitute a contract within the meaning of the clause of the constitution of
the United States, which prohibits a state from passing any law which im-
pairs the obligations of a contract. Skelly v. Jefferson Branch Bank, 606.
40. The act of March 14, 1853, as amended by the act of May 1, 1854. Juris-
diction of justices of the peace. McKibben v. Lester, 628.

No reply allowed to an answer to a writ of man-
Beckel, v. Union Township, etc. 599.
1831, “to provide for the proof, acknowledgment,
Certificate of acknowledgment must be upon
Winkler v. Higgins, 599.

STATUTE OF FRAUDS. See FRAUDS AND PERJURIES, Statute of.
STATUTE OF LIMITATIONS. See LIMITATION OF ACTIONS.
STREAM OF WATER. See ROADS, 1.

SUNDAY--

An ordinance of a municipal corporation, prohibiting, under a penalty, the
opening of shops, etc., for the purpose of business, on Sunday, without
excepting cases of necessity and charity, and without exempting from its
operation persons who conscientiously observe the seventh day of the
week as the Sabbath, is inconsistent with the laws of the state, and there-
Ifore void. City of Canton v. Nist, 439.

SUPERVISOR. See ROADS, 1.

SUPREME COURT OF THE UNITED STATES-

Section 25 of the judiciary act of the United States does not constitute the
Supreme Court of Ohio, in the class of cases to which that section applies,
a court subordinate to the Supreme Court of the United States, so as to
make the decisions of that court conclusive and binding upon the Supreme
Court of Ohio, as the decisions of a superior upon an inferior court. The
decisions of the Supreme Court of the United States in that class of
cases, although entitled to the highest respect, do not bind and conclude
the judgment of the Supreme Court of Ohio. Skelly v. Jefferson Branch
Bank, 606.

SURETY. See INJUNCTION BOND; BOND OF INDEMNITY.

TAX-DEED. See CONVEYANCE, 1.

TAXES. See ASSESSMENT; SCHOOLS, 5, 6.

Team-Youth.

TEAM. See EXEMPTION OF PROPERTY FROM EXECUTION.
TOOLS. See EXEMPTION OF PROPERTY FROM EXECUTION.
TOWNS, CITIES, AND VILLAGES-

An ordinance of a municipal corporation, prohibiting, under a penalty, the
opening of shops, etc., for the purpose of business, on Sunday, without ex-
cepting cases of necessity and charity, and without exempting from its
operation persons who conscientiously obserse the seventh day of the week
as the Sabbath, is inconsistent with the laws of the state, and therefore
void. City of Canton v. Nist, 439.

TRUST AND TRUSTEE. See ASSIGNMENT BY INSOLVENT DEBTORS; FRAUDS
AND PERJURIES, STATUTE OF; HUSBAND AND WIFE.

TURNPIKE ROADS-

The act of the general assembly "authorizing county commissioners to grant
further time for the completion of free turnpike roads, and paying for the
same," passed May 1, 1854 (52 Ohio L. 99), is not repugnant to the present
constitution. Foster v. Comm'rs of Wood Co. 540.

VARIANCE. See INJUNCTION BOND; PLEADING IN CRIMINAL CASES.
VENDOR AND VENDEE. See LIQUORS; SPECIFIC PERFORMANCE.
VERDICT-

Where the verdict for the plaintiff was excessive to the extent of $450, and
he, at the suggestion of the court, remitted such excess, the court properly
entered judgment on the verdict for the balance. Durrell et al. v. Carver's
Assignee, 72.

VOID AND VOIDABLE. See BANKS AND BANKING, 3; JUDICIAL SALE.
VOTER. See ELECTOR.

WAIVER. See JURISDICTION OF COURTS.

WARRANT OF ATTORNEY. See JUDGMENT.

WATER-COURSES. See ROADS, 1.

WHITE CITIZEN. See ELECTOR.

WHITE YOUTH. See SCHOOLS, 1, 2.
WILL-

Where a testatrix, having no child, made her will, and afterward had a living
child, which she survived: Held, under section 40 of the act of March
25, 1840, relating to wills (Curwen, 690), 1. That the birth of the child re-
voked the will. 2. That the fact that the testatrix survived the child did
not revive the will. Ash v. Ash et al. 383.
See GIFT.

WITNESS-

1. On the trial of the issue prescribed by the act of February 2, 1824, "for the
maintenance and support of illegitimate children," the defendant, by vir-
tue of the provisions of section 310 of the code of civil procedure, is a
competent witness in his own behalf. Carter v. Krise, 402.

2. In an action by the assignee of a chose in action against the administrator
of the debtor, the assignor is, under sections 310 and 313 of the code, a
competent witness for the assignee to prove any of the material facts in the
case, including those which occurred before, as well as those which occurred
after, the disease of the debtor. Myers v. Walker's Adm'r, 558.
YOUTH. See SCHOOLS,

:766, 30