25, 1913. ERROR to Circuit Court of Cuyahoga county. Messrs. Higley & Maurer, for plaintiff in error. Mr. E. K. Wilcox, city solicitor, for defendants in error. Judgment affirmed. SHAUCK, C. J., JOHNSON, DONAHUE, WANAMAKER, NEWMAN and WILKIN, JJ., concur.
ACCOMMODATION MAKER-
A purchase of mortgaged property by a mortgagor constitutes a
merger of legal and equitable estates, which merger disarms
mortgagee of right to foreclosure and releases accommodation
maker on mortgage notes, when. See Senter v. Senter, 377.
Where, in a prosecution against county commissioners for accept-
ing a bribe from bridge contractors in violation of Section 12823,
General Code, other parties to the bribery transaction are called
as witnesses under Section 12824-1, General Code, it is error
for the court to charge the jury that the conspiracy or agree-
ment must be established by other testimony, when. See State
v. Hare & Davis, 204.
ACCOUNT OF ADMINISTRATION-
Where a sole devisee, who is named executor, sells lands devised,
he must apply proceeds to payment of debts of estate, when-
Where devised lands are sold at private sale for full value,
executor must account for total amount received; when sold
for less than full value, executor must account for full value,
when-Where executor dies without filing account, his successor
must compel accounting and payment of balance due from
executor to estate, when-Personal representative of deceased
executor must file account for latter and pay over to successor
in trust balance due estate. See Hocking Valley Ry. v. White,
413.
1. Widow and lineal heirs-May maintain action under Section
972, General Code-For wrongful death-Caused by non-com-
pliance with Mining Act of April 5, 1910 (101 O. L., 52)—Un-
der the provisions of Section 972, General Code, the widow and
lineal heirs of a person who dies from the result of injuries
received by reason of the violation or willful neglect or failure
of any owner, lessee or agent of a mine to comply with any
of the provisions of the Mining Act, passed April 5, 1910 (101
Actions-Act of Legislature.
O. L., 52), are entitled to bring and maintain an action for
damages for such wrongful death in their own names. Harris,
Admx., v. Coal Co., 450.
2. Sections 10770 and 10772, General Code, not applicable, when—
The special provisions of Section 972, General Code, obtain in
all cases coming under the terms and provisions of said act,
and the general provisions found in Sections 10770 and 10772
do not apply in such cases. Ib.
3. No right of action survives to personal representative, when—
Where the death of the injured person is immediate, no right
of action for the benefit of his estate survives to his personal
representative. Ib.
A petition in error to review a judgment of an inferior court is
a separate and independent proceeding-The right to sue for
malicious prosecution of a civil action accrues upon rendition of
judgment for defendant in trial court, and is barred by statute
of limitations within one year, although proceedings in error
have intervened, when. See Levering v. Natl. Bank, 117.
Section 13764, General Code, does not require prosecuting attor-
ney or attorney general to obtain leave of supreme court to file
a petition in error which the section authorizes. See State v.
Gaskins, 128.
Act of February 28, 1906 (98 O. L., 33), repealing Section 7306a,
Revised Statutes, and substituting Section 13764, does not re-
quire prosecuting attorney or attorney general to obtain leave
of supreme court to file a petition in error which the later
section authorizes. See State v. Gaskins, 128.
The act of March 23, 1909 (100 O. L., 87), now Section 3148
et seq., General Code, providing for the establishment and main-
tenance of district tuberculosis hospitals, is a valid exercise of
legislative power not repugnant to the constitution. See Brissel
et al. v. State, ex rel., 154.
If an act of the legislature fails to expressly repeal existing statute,
or revises the whole subject-matter of former act, the later
enactment will be held to repeal former statute by implication-
The act of May 10, 1910 (now Section 6956-1 et seq., General
Code), providing for construction and repair of public roads,
repeals Section 6926 et seq., General Code, by implication. See
Goff et al. v. Gates et al., 142.
Act of Legislature-Administrator.
ACT OF LEGISLATURE-Continued.
The act of February 17, 1911 (102 O. L., 5), providing for the
election of judicial officers by separate ballot, is a valid exercise
of legislative power and constitutional. See State, ex rel., v.
Miller, 12.
ADMINISTRATION OF ESTATES-
Where a sole devisee, who is named executor, sells lands devised,
he must apply proceeds to payment of debts of estate, when—
Where devised lands are sold at private sale for full value,
executor must account for total amount received; when sold for
less than full value, executor must account for full value, when—
Where executor dies without filing account, his successor must
compel accounting and payment of balance due from executor
to estate, when-Personal representative of deceased executor
must file account for latter and pay over to successor in trust
balance due estate. See Hocking Valley Ry. v. White, 413.
ADMINISTRATION OF OATH-
An oath, properly administered to a witness before the grand
jury, is an oath authorized by law within the meaning of Section
12842, General Code, defining perjury, without reference to
whether witness claims his constitutional right to refuse to
testify against himself or waives that privilege and voluntarily
testifies. See State v. Cox, 313.
Where a sole devisee, who is named executor, sells lands devised,
he must apply proceeds to payment of debts of estate, when-
Where devised lands are sold at private sale for full value,
executor must account for total amount received; when sold
for less than full value, executor must account for full value,
when-Where executor dies without filing account, his successor
must compel accounting and payment of balance due from
executor to estate, when-Personal representative of deceased
executor must file account for latter and pay over to successor
in trust balance due estate. See Hocking Valley Ry. v. White,
413.
Under Section 972, General Code, a widow and lineal heirs may
maintain an action in their own names for wrongful death
caused by willful failure to comply with Mining Act (101 O. L.,
52) Sections 10770 and 10772, General Code, do not apply to
such cases, when-Where death is immediate, no right of
|