No. 899. The State of Ohio on relation of Banks & Bros. v. James W. Newman, Secretary of the State, and E. L. DeWitt, Reporter of the Supreme Court. Mandamus.

BY THE COURT.

1. A contract by a publisher with the secretary of state, under proper legislation, to print and bind for the state volumes of law reports, may be assigned by the contractor, with the acquiescence of the state, so as to operate as a novation and vest in the assignee all the rights and subject him to all the obligations of the original contractor. 2. A contract made in pursuance of a statute or resolution, must be construed as though such statute or resolution had been incorporated into such contract.

3. Under the statutory provisions relating to the publication of the Ohio State Reports (Rev. Stats. 427-437), the resolution of April 17, 1882, (79 Ohio L., 249), on the subject, and the contract, made in pursuance of the statute and resolutions, Banks & Brothers, assignee of the original contractors, have the right to complete any volumes of reports upon the publication of which they in good faith entered previous to June 23, 1884; and the fact that on the last named day a sufficient. number of opinions had not been delivered to complete the volumes then in course of publication, will not defeat such right. 4. In favor of such an officer as the Reporter of the Supreme Court, it will be presumed, in the absence of anything appearing to the contrary, that in placing, for publication, manuscript opinions in the hands of the contractor for printing and binding the Ohio State Reports, during the period embraced by the contract, he acted in entire good faith; and where, with the opinions so furnished, the publisher commences in good faith, during such period, to publish a volume of such reports, he cannot be deprived of manuscript opinions to complete the volume, on the ground that the contract was made under the joint resolution of April 17, 1882, (79 Ohio L., 249), which authorizes the secretary of state to contract for the publication "of the thirty eighth and any other subsequent volume or volumes of the Ohio State Reports that may be ready for publication within two years from the 23d day of June, 1882," and that sufficient opinions had not been delivered on the last named day to complete the volume; and on refusal to furnish such manuscripts for such purpose, the officer may be compelled to do so by mandamus. Peremptory writ awarded.

JOHNSON, C. J., dissented.

26. Ohio ex rel. Attorney General v. Portsmouth Turnpike Co. Quo warranto. Dismissed for want of prosecution.

174. Phoenix Ins. Co. v. Sage. Error to the District Court of Lorain County. Judgment affirmed. No further report.

754. Little v. Gleason, executor, etc. Error to the District Court of Cuyahoga County. Settled at costs of plaintiff in error as per agreement on file.

MOTION DOCKET.

No. 161. Neeley v. Cummings. Motion for a re-hearing in cause No, 592. General Pocket. Motion overruled!.

272. Watkins v. Simpson. Motion to re-instate cause No. 841, General Docket. Motion overruled.

288. Covert et al. v. Covert, Jr., et al. Motion to make additional assignment of error in cause No. 603, General Docket. Order in the cause vacated.

301. P. F. & C. W. Ry. Co. v. Commissioners of Wayne County. Motion for leave to file a petition in error to the District Court of Wayne County. Motion granted.

302. Covert et al. v. Covert, Jr., et al. Motion for leave to make additional assignment of error in cause No. 603, General Docket. Motion overruled.

303. Raymond v. City of Cleveland. Motion for re-argument of cause No. 173, General Docket. To be heard with No. 889.

304. Strickland v. City of Cleveland. Motion to take out of order cause No. 889. General Docket. Motion granted.

306. Bates v. People's Savings and Loan Association.

Motion for

re-argument of cause No. 730, General Docket. Motion granted. 307. Emerick v. Longnecker. Motion for leave to file a petition in error to the District Court of Darke County. Motion granted. 308. State ex rel. Prosecuting Attorney of Clarke County v. Constantine. Motion to take cause No. 918, General Docket, out of its order. Motion granted, and case set for November 14, 1884.

309. Dearborn v. People's Loan Association, and Franklin Hubbard v. Northwestern Savings Bank et. al. Motion for re-argument in causes Nos. 23 and 322, General Docket. Motion granted. 310. Raymond v. City of Cleveland.

Motion for a modification of order,

etc. To be heard with cause No. 889, General Docket.

362. The German Evangelical Protestant Church, of Storrs township v. The City of Cincinnati et al. Appeal reserved in the District Court of Hamilton county.

BY THE COURT.

By will made in A. D. 1850, Ethan Stone gave and devised "to the township of Storrs" certain leasehold lots, upon the following express conditions and trusts, to wit:

"That the said township of Storrs shall pay to the Trustees of the Ministerial Section for Cincinnati township, forty dollars per annum, as the same shall become due as rent on my lease for said fractional section Twenty-nine forever; and that the said Storrs township

shall also pay to the ‘Cincinnati Orphan Asylum' one hundred dollars per annum forever; and to the 'Society for the Relief of Aged and Indigent Females' sixty dollars per annum forever; and that the rest and residue of said annual income, being about one thousand dollars per annum, the said township of Storrs shall hold in trust, one-half thereof for the support of the Protestant Religion in said township, and one-half thereof for the support of one or more protestant schools on said fractional number 29. And that to avoid disputes or any division of the fund thus devoted to the support of religion it shall be decided once in every ten years by a vote of all the Protestant Communicants of said township, who may choose to vote to what denomination of Protestant Christians said fund shall be appropriated for the ten years next ensuing said election." The will was duly admitted to probate in 1852, and the trustees of Storrs township, by resolution, on May 2, 1853, accepted the devise and so long as the township existed, acted as trustees under the will. For some years the township trustees supported a school under their own control on said section, and afterwards for other years paid that portion of the fund into the township school fund. In 1870 the township was annexed to the City of Cincinnati, and since that time the City has collected the rents but instead of paying any money "for the support of one or more protestant schools on said fractional section 29" has added the rents (not paid out to other beneficiaries under the will) to the general fund of the City. The plaintiff maintained a protestant school on said section and claims that it is the only one. Neither the township nor its trustees over selected this school as one to be supported by the fund. In 1877 it began an action against the City and others, asking judgment for all of said portion of said fund for each and every year beginning on April 23, 1853. The answer denied plaintiff's title. The Common Pleas dismissed the action. An appeal carried it to the District

Court, and that court reserved the case for decision here. Held: The plaintiff is not entitled to said share of said fund. Leaving undetermined all questions touching the capacity of the trustees; the validity of the bequest or devise, and the power of a court, on application by a beneficiary entitled to a share of the fund to appoint a trustee, and to establish and direct a cy pres administration of the trust, the plaintiff's action is dismissed at its costs.

411. Newman Lumber Company v. John W. Purdum et al. Error to the District Court of Scioto County.

BY THE COURT.

In 1875, Purdum, by contract with the commissioners of Scioto County, agreed that, by a date named, he would build and deliver to said commissioners, or their successors in offfce, one house to be used as a Children's Home; also to furnish all material (except mantels) at bis own cost; also that Thompson, an architect, as superintendent, should have power to insp ct and accept or reject any work done or inaterial furnished and his decision should be final. For this house the commissioners agreed to pay to Purdum $18,800 in nine several installments; each payment to be made on or before a specified day,

or as soon thereafter as a specified stage of the work should be complete. Seven installments Lad been paid, Thompson having accepted the respective stages of the work. The eighth installment was to become payable "when the exterior is finished and one-half of the interior wood work finished, and the cooking range set, and the plumbing done." Purdum had done the plumbing and had "substantially finished the exterior of said building and one-half of the interior wood work," but had not set the cooking range, and Thompson had not inspected or accepted any of said eighth stage of the work. Then, without the fault of either party, the uncompleted house was destroyed by fire. Purdum refused to complete the house, unless the commissioners, at the County's expense, restore it as it was when the fire began. This they declined to do. Newman Lumber Company, under contract with Purdum had furnished him materials for the house, for which $1,075 was due and unpaid. The company delivered to and filed with the commissioners an attested account such as was provided for by the act of March 30, 1875, (72 O. L., 166), and demanded payment out of the sum payable to Purdum for the eighth stage of the work. This was refused. The company did not appeal to the Common Pleas, but began a civil action against Purdum and the commissioners.

Held: 1. The payment by installments was for the convenience of Purdum, and did not affect the entirety of his contract to build and deliver a compete house. No part of the eighth installment became, or is due to him.

2. The act of March 30, 1875, (72 O. L., 166), did not apply to the public buildings, or to commissioners of counties.

3. If Newman Lumber Company's claim was valid against the commissioners was their only remedy an appeal from the Commissioners to the Common Pleas? Quere.

Judgment affirmed.

332. Brookover v. Helm. Error to the District Court of Brown County. Judgment affirmed. No report.

360. McDonough v. Mueller. Error to the District Court of Hamilton County. Judgment of the District Court reversed and that of the Superior Court affirmed. No report.

385. Delphos Paper Co. v. King. Error to the District Court of Van Wert County. Judgment of the District Court reversed and that of the Common Pleas affirmed.

405. Bedell v. Brown. Error to the District Court of Mahoning County. Judgment affirmed. No report.

422. Black v. Davis et al. Error to the District Court of Franklin County. Judgment affirmed. No report.

435. Holloway v. Bertram et al. Error to the District Cqurt of Darke County. Judgment affirmed, No report.

438. Moore v. Greenville Building & Savings Association. Error to the District Court of Darke County. Judgment reversed. No report. Error to the District Court

469. Gilbert v. Carlton, Administrator, etc.

of Geauga County. Judgment affirmed. No report.

DIGEST OF CASES.

Assumpsit-Money had and Received-Promise to Pay to Person Entitled-Privity.-Where a person receives from a third person money belonging to another on a promise to pay over to that person, the true owner may maintain assumpsit for money had and received to his use. But where a person receives money under a claim of right, whether a just or unjust one, and such money is afterwards claimed by another there is no such privity between the two claimants as will support an action for money had and received. Nolan v. Manton. Sup. Ct. N. J. 18 Rep. 401.

Breach of Warranty of Title-Measure of Damages.-The measure of damages in an action for breach of warranty of title to real estate is the value of the property at the time of sale, to be ascertained by the purchase price, with interest thereon, and reasonable costs, if any were expended in defense of the title by the plaintiff. Hoffman v. Bosch. Sup. Ct. Nev. 4 West Coast Rep., 36.

Contract of Sale-Breach of Measure of Damages.-In an action by a vendee to recover for the breach of a contract of sale, where the articles contracted to be sold had no market value, the measure of damages is the actual loss sustained by the vendee by reason of his not receiving an advance or profit through agreements which he himself had made in reliance upon the fulfillment of his vendor's contract. McKay v. Riley. Sup. Ct. Cal. 4 West Coast Rep., 47.

False Imprisonment-Void Process-Liability of Judge.-Where the time of prosecution of a crime is limited, and it appears on the face of the complaint that such time has expired, the process issued thereon is absolutely void, and the justice issuing the same is liable for the arrest and imprisonment of the accused, although it was made to appear to him that the offence was but just discovered. Vaugn v. Congdon, S. C. Vt.; 19 Cen. L. J., 120.

Interstate Extradition—Other Offense.-When there has been an interstate extradition of a person for a certain offense, and he has been tried and acquitted and discharged, he may be arrested and tried for a different offense before opportunity to return to the state from whence he was brought, in the absence of any compact or other arrangement between the states. State ex rel. Brown v. Stewart. Sup. Ct. Wis. 18 Rep. 412.

Misdescription in Deed-Estoppel of Claimant.-A deed the description in which by reason of an error in the boundaries inclosed no land is void, and cannot be aided by parol evidence to locate the land, at any rate in a court of law, but an equitable defense to the effect that a claimant had been silent while the grantee in the deed had taken possession and made valuable improvements was available. Gillespie v. Sawyer. Sup. Ct. Neb. May 27, 1884. 19 Northw. Rep., 419.