The probate court and common pleas court treated the citation as an application for leave to open up the account filed by said administrator, June 23, 1899, in said probate court, and as an exception thereto.
It is now claimed that the petition does not state facts sufficient to constitute a good cause of action, inasmuch as it contains no allegation of fraud nor of manifest error, as required under Rev. Stat. 6190 (Lan. 9732). It is admitted by the administrator that he wrongfully converted the bonds to his own use by pledging them as collateral security for a loan in the Equitable National Bank; and that the receipt taken by the administrator from Anna C. Koehnken and filed with the probate court in the final settlement of his account showed a payment of $7,641.24, whereas in fact only $831.24 was paid. While the petition and the finding of the common pleas court fail to show any actual fraud on the part of the administrator, they do show a manifest error, unless otherwise explained. The theory of the defense was that Anna C. Koehnken acquiesced in and ratified the wrongful act of the administrator, and looked to him as an individual for the restoration of the bonds or the payment of their value in money.
Upon this issue, the court of common pleas made no finding, but we think the evidence warrants the conclusion that, although at the time when she executed the receipt she may not have known that the bonds had been pledged and were beyond the control of the administrator, she a short time thereafter was fully informed of the facts and acquiesced in and ratified the act of the administrator. This is evidenced by the testimony of the administrator himself, which to some. extent is corroborated by the testimony of Emma C. Koehnken, a daughter of Anna C. Koehnken; and by the fact that although Anna C. Koehnken survived for a period of eighteen months after the account of the administrator was settled in the probate court, she took no action during her lifetime to impeach the account of the administrator or otherwise charge him as a trustee with the obligation to return the bonds or their value. That the acquiescence of a beneficiary in a wrongful application of a trust found by a trustee releases the trustee as such and his sureties from liability to the beneficiary has been decided in the cases of Pope v. Farnsworth, 146 Mass. 339 [16 N. E. Rep. 262], and Dyer v. Riley, 51 N. J. Eq. 124 [26 Atl. Rep. 327].
We hold therefore that the judgment of the court of common pleas is not sustained by sufficient evidence, and will be reversed, the cause being remanded for a new trial.
Jelke and Swing, JJ., concur.
Foreigner to become citizen must
take oath to support federal consti-
tution and to renounce allegiance to
foreign state. State v. Collister. 529
AMENDMENT-
It is not error to refuse leave to file
an amended petition conforming to the
facts proved at the trial, where the
amended petition offered for filing sub-
stantially changes the plaintiff's claim.
147
Hazzard v. Wallace.
Immaterial amendment required by
court not prejudicial, etc. Independent
297
Coal Co. v. Bank.
After appeal, amendment not allowed
to let in new party with issue to which
plaintiff could not be joined. Winton
607
Place v. Railway.
Amendment to petition to correct de-
scription of defendant, admissible un-
Caldwell
der R. S. 5114 (L. 8629).
Furn. Found. Co. v. Heating & Vent.
Co.
APPEAL
An appeal is a continuance of the
original action, and, under R. S.
79 (L. 98), statutes relating thereto,
in force at the time an action is com-
menced, are not affected by subsequent
amendatory legislation, unless express-
ly so provided. Peters v. Harman. 88
The provision of act 95 O. L. 66 (R.
S. 5227; L. 8736), requiring a party
who desires to appeal to circuit court
to file a written notice of such intention
within three days after the judgment or
order is entered by the trial judge on
his docket, does not apply to actions
pending at the time of its enactment.
Revised Statutes 6494 (L. 10071),
which secures to the defendant in at-
tachment the right to appeal from the
decision of a justice of the peace in
overruling a motion to discharge the
attachment, is not unconstitutional sim-
ply because it makes no provision for
an appeal by plaintiff in case the mo-
tion is maintained. Hare v. Cook. 289
Appeal to circuit court brings up all
questions upon pleading. R. S. 5225
347
(L. 8734). Scofield v. Oil Co.
An order confirming the report of a
Appeal-Attachment and Garnishment.
trustee as to the investment or other
disposition of the proceeds from the
sale of an entailed estate, under favor
of R. S. 5803 to 5813 (L. 9340 to
9351), is a final order in a civil action
in which the right of trial by jury does
not exist, and is therefore appealable.
Ludlow v. Moore.
496
After appeal, amendment not allowed
to let in new party with issue to which
plaintiff could not be joined. Winton
Place v. Railway.
607
Sureties held not liable on appeal
bond when no judgment ordered prin-
cipal to pay anything. Dieckman v.
Hunt.
836
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Circuit court will enjoin assessment
fraudulently purporting to be accord-
ing to benefits on basis of frontage.
383
Nulsen. v. Cincinnati.
An assessment for improvement levied
on lots, on a basis of frontage, with-
out reference to the depth thereof or
the relative value of each after the im-
provement was made, is not an assess-
ment in proportion to the benefits, with-
in the statutory meaning.
Ib.
Assessment to pay for improvement
made under statute partly unconstitu-
tional not enjoined, when. Adkins v.
Toledo.
417
Preliminary cost of work pertaining
to municipal improvement, paid from
general fund, may be included in assess-
ment, etc.
Ib.
Municipality cannot estimate bene-
fits on basis of depreciation of lots
caused by nuisance which it has per-
mitted. Kummer v. Cincinnati. 683
Grantee assuming certain street as-
sessments held estopped from claiming
that property was not benefited by im-
provement, etc. Waldschmidt v. Bow-
land.
Grantee assuming certain street as-
sessment held presumed to know
amount of same, etc. Waldschmidt v.
Bowland.
782
Petitioning for street improvement
evidence that abutting property will be
specially benefited. Borger v. Colum-
bus.
812
Petition for improvements by foot
frontage estopped to attack constitu-
tionality of statute, or assessment be-
cause in excess of benefit. Murphy v.
Sims.
825
Exemption cannot be claimed in as-
signed future wages. Brooks v. Tol-
321
Injunction will not lie by assignee
to enforce contract for services. New
York & B. Co. v. Herrmann.
694
Assignee of part of contract obtains
no independent contractual rights; if
assignor responsible for entire contract.
Ib.
An action at law will not lie on an
assignment of wages already due and to
become due, there being no proof that
the debtor acquiesced in the assign-
ment, and the amount due being in ex-
cess of the amount assigned. Cin. H.
& D. Ry. v. Railway Supply Co. 807
Assignment of unearned wages un-
der present contract of employment
held valid; contra, when such exists.
Andrews v. Rodijkeit.
814
Attachment and Garnishment-Beneficial Associations.
to his own use, because the cause of ac-
tion is based on contract. Martin v.
Gunnison.
113
Indebtedness for rent not necessarily
claim for necessaries within meaning
of attachment laws. Hare v. Cook.
289
Motion to discharge attachment un-
der R. S. 6494 (L. 10071), must set
forth reasons, etc.
Ib.
There is no provision of law author-
izing the filing of a motion for a new
trial, after a ruling on a motion to dis-
solve an attachment; hence the filing
of such motion do.s not operate to ex-
tend the time within which a bill of
exceptions to such filing may be filed.
Cecill v. Grant.
442
Judgment upon claim for necessaries
is a debt or demand for necessaries
within the statute. Esman v. Roller.
Attorney fees of an administrator
in an action commenced by him to sell
real estate to pay debts, are included
in the costs and expenses "of the sale"
under R. S. 6165 (L. 9706) and cannot,
therefore, be allowed prior to the claim
of the first mortgagee by the probate
court in making an order of distribution
of the fund realized from the sale. Sher-
man v. Millard,
175
Right of probate court to allow at-
torney fees to defendant in condemna-
tion proceedings where plaintiff refuses
to take the property and pay amount
of verdict. Wiler v. Gas & Fuel Co.
257
Evidence as a nature of services, etc.,
admissible, to guide the probate court
in fixing reasonable attorney fees as
costs of defendant in a condemnation
proceeding, abandoned by the plaintiff.
der favor of R. S. 3256 (L. 5199).
Failure to comply with R. S. 3798
(L. 6124) no defense against creditors.
Ib.
Nonexistence of corporate capacity
of savings bank no defense against cred-
itors, etc.
Ib.
Creditor may elect to sue stockhold-
ers usurping corporate powers as such
stockholders or as individuals.
Ib.
Creditor not charged with knowledge
that stockholders have not made statu-
tory payment on subscriptions. Ib.
Where a general deposit is made in
an insolvent bank, known to the cash-
ier but not to the depositor, and im
mediately after the bank fails, and the
fund coming into the hands of the re-
ceivers is much more than the deposit,
the depositors may sue the receivers
in equity to charge such deposit upon
the fund in the hands of the receivers,
and have the same preferred. Baker v.
Orme.
465
Beal law held constitutional-keeping
place and selling held distinct offenses.
Dominick v. State.
305
BENEFICIAL ASSOCIATIONS-
Under the constitution, by-laws and
regulations of the "Independent Order
of Foresters" a beneficiary must ex-
haust her remedy in the tribunals of
the order for the payment of death cer-
tificates before she can appeal to the
civil courts. Supreme Court of I. O. F.
v. Herlinger.
151
Person for whose benefit such asso-
ciation may issue benefit certificate
must be one of the class provided for.
Starr v. Knights of Maccabees. 475
A woman occupying the relation of
wife to a man for twelve years in the
belief that she is his lawful wife al-
though he had another wife living, is
a "dependent" within the charter of
a benefit society which authorizes the
designation of dependents as bene-
ficiaries and is, as against the lawful
wife, entitled to the proceeds.
Ib.
Member of beneficial association not
entitled to share in benefit fund for
permanent loss of hand, when. Cheva-
liers v. Shearer.
509
Trustees of beneficial association may
adopt rules concerning conduct of busi-
Ib.
The certificate, constitution, rules
and regulations, and by-laws of a bene-
ficial association constitute the contract
between the association and its mem-
bers.
Ib.
Mutual protection association may
collect assessments before actual loss
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