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ment which purports to be a "statement of installment stock" in the appellant company on the 1st day of October, 1895, and of the "resources, liabilities, gains, and losses" to the same date, and a letter to the president of the appellant company, to which is attached, in print, a signature, as follows: "Lon V. Stevens, Supervisor, by H. L. Gray, Deputy." The appellee objected to the introduction of the said printed instrument, and the same was received by the court subject to the objection. It was not in any way authenticated, and we are aware of no rule of evidence which would justify its consideration by the court. We must assume, in view of the judgment rendered by the trial court, it was not regarded as legitimate evidence.

The appellee recovered a judgment in the amount paid by him to the company and 6 per cent. interest thereon. This was the sum contracted to be allowed by a stipulation in the certificate issued by the appellant company to the appellee. Section 1 of article 3 of the by-laws of the appellant company provides a withdrawing member shall receive the full amount paid in, with interest as specified in the certificate, and the amount to be paid, as provided by the statute of the state of Illinois, is the amount paid in, and such interest thereon as the by-laws of the association may determine. It is therefore manifest the judgment was in the amount warranted by the laws of this state, and, as we have seen, it is the statutes of this state which are to have operation in such cases.

The remaining complaint is that a judgment in favor of a withdrawing stockholder should not be awarded against an insolvent association of this character, and that this is equally true in a case where insolvency appears as a matter of fact as well as where it has been declared by the judgment or decree of a court, and the association placed in the hands of a receiver. We need not enter into a discussion of the points involved in this contention, for the reason we do not find In this record any competent evidence that the appellant company was insolvent. As proof of such insolvency it relied solely upon the printed circular letter which we have hereinbefore referred to, and held to be inadmissible as matter of evidence. Finding no error in the record, the judgment of the appellate court is affirmed. Judgment affirmed.

BEADLE v. COLE et al.1 (Supreme Court of Illinois. April 21, 1898.)

MORTGAGES-REDEMPTION.

The fact that a redemption creditor was a defendant in a former foreclosure suit does not deprive him of the right to redeem under his own decree in a second foreclosure suit.

Appeal from circuit court, Clark county; H. Van Sellar, Judge.

1 Rehearing denied June 15, 1898.

Action by William H. Beadle against Walter Cole and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

S. S. Whitehead, for appellant. Golden, Scholfield & Booth and Robert E. Hamill, for appellees.

PER CURIAM. This is an appeal by plaintiff below from a judgment for defendants below in an action of ejectment. The suit involves the same title which was adjudicated upon and settled by this court in Whitehead v. Hall, 148 Ill. 253, 35 N. E. 871. That suit was brought for one part of a tract of 255 acres, and this suit is for another. The appellant here occupies no better position than the appellant occupied in that case. He assails the same title founded on the same redemption sale, which in the case cited was held good. We have carefully examined and considered the elaborate arguments made by appellant for a reconsideration of the questions involved, but are unable to see that any error was committed in the decision mentioned. The fact urged upon our attention, that the redemption creditor was a defendant to the first foreclosure suit, did not deprive him of the right to redeem under his own decree rendered in the second foreclosure suit. Boynton v. Pierce, 151 Ill. 197, 37 N. E. 1024. We see no reason for overruling the former case, but are satisfied it was correctly decided. The judgment of the circuit court will be affirmed. Judgment affirmed.

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Error to circuit court, Cuyahoga county. Suit was brought in the court of common pleas of Cuyahoga county by Elizabeth A. Hicks against George Polley and John A. Hicks, as administrators of the estate of Morgan Polley, deceased, and individually, to recover $1,816.50, which the plaintiff, in her petition, alleges became her property by gift from Morgan Polley, and was, after his decease, obtained and converted by the defendants to their own use. The gift, it is alleged, was made by the delivery to the plaintiff of a bank book issued by a Cleveland savings bank, showing deposits to the credit of the donor in the amount sued for. Issue was joined by George Polley upon the allegations of the gift, and a trial resulted in a verdict and judgment for the plaintiff, which was

affirmed by the circuit court. George Polley prosecutes error here. Some questions are made concerning the state of the record, and a defect of parties, but we do not deem it necessary to report those questions. The facts constituting the alleged gift are stated in the opinion. Affirmed.

Charles G. Canfield and Henry C. Ranney, for plaintiff in error. Johnson & Hackney, for defendant in error.

WILLIAMS, J. (after stating the facts). The facts which the evidence fairly tends to prove, and which, therefore, in view of the verdict and judgment, must be regarded as having been established to the satisfaction of the jury and the court whose duty it was to pass upon its weight, are substantially as follows: Morgan Polley died intestate in the city of Cleveland December 2, 1892, and the defendants below were appointed administrators of his estate. A few days before his death, Morgan Polley, having then in his possession a bank book issued to him by a Cleveland savings bank, showing deposits by him to the amount of $1,800 and over, delivered the book to the plaintiff; accompanying the delivery with the declaration that he gave her the book, and the money it represented, as her property. This was done with the intention to thereby make an absolute gift of the book and money to the plaintiff. At that time Morgan Polley was ill of the malady of which he afterwards died; was conscious of his approaching death, and of sound mind. His apparent motive in making the gift was that an engagement of marriage existed between him and the plaintiff, and she was constant in her care of him during his illness. She accepted the gift when it was made, received the bank book into her possession, and retained its actual custody until some time after the death of Morgan Polley, when, without her consent, the defendants obtained possession of it; and George Polley, on its presentation to the bank, received the whole amount appearing to be due upon it, and claims the right to hold and administer the money as assets of Morgan Polley's estate.

The deposit book, under the regulations of the bank, was of such character that the amount on deposit, or any part of it, could be drawn upon the presentation of the book at the bank by the holder, without check or order from the depositor, and it could not be drawn without the production of the book; and any payment made upon a book of that kind was entered on it by the bank, when made, so that it always showed the actual amount which the bank owed upon it. there was a sufficient delivery to effectuate the intended gift, there was present every element of a valid donatio causa mortis, as well as of a gift inter vivos. In support of their contention that the delivery was insufficient, counsel for the plaintiff in error cite the cases of Hamor v. Moore, 8 Ohio

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St. 239; Starr v. Starr, 9 Ohio St. 75; Simmons v. Society, 31 Ohio St. 457; Gano v. Fisk, 43 Ohio St. 462, 3 N. E. 532; and Flanders v. Blandy, 45 Ohio St. 108, 12 N. E. 321. But the question we have here is different from that involved in any of those cases. In the last two of them there was no actual delivery to the donee of the subject of the alleged gift,-in one case, government bonds, and in the other, choses in action due the donor. In Simmons v. Society, the gift was of the drawer's check, payable to the donee, which was never accepted by the drawee, and was revoked before its presentation. It was subject to revocation, and there was no liability of the drawee upon it. In the first two of the cases referred to, the things delivered were the donor's own promissory notes, payable to the donees. They were sought to be made available as a gift of the money which the donors promised to pay; but, the promises being without consideration, they amounted to no more than mere promises to give the money, and could not be enforced. In the case before us, the deposit book which Morgan Polley gave to the plaintiff was issued to him by the savings bank as evidence of its indebtedness to him, and was the only evidence thereof furnished in such cases. And, as no part of the deposit could be withdrawn without presentation of the book, upon which, at the time, the entries of the withdrawals are made by the bank, this book, at the time of its delivery to the plaintiff, showed the exact amount which the bank then owed upon it, and was complete evidence of the bank's obligation to pay that amount to the depositor, or whoever should become its lawful owner when duly presented at the bank. The question, then, which this case presents, is whether there can be a valid gift, inter vivos or causa mortis, of a chose in action by its delivery to the donee, without assignment in writing by the donor. We are not aware of any reported decision of this court in which the question has been considered. Elsewhere such gifts are sustained by the great weight of authority, and almost with unanimity. In Thornton on Gifts and Advancements (section 273), that author says, "It may be stated that any written obligation is the subject of gift, without indorsement or assignment." Not only notes, bonds, mortgages, etc., but "all evidences of indebtedness which may be regarded as representing the debt, whether with or without indorsement, are the subject of a donatio mortis causa, and, of course, of inter vivos." And that doctrine is maintained, as the author shows, in a large number of the American states, and by the English courts. In 2 Redf. Wills (Ed. 1866) 312, 313, it is laid down as the established rule that "notes and bills not negotiated so to pass by delivery, and also promissory notes not negotiable, bonds, mortgages, policies of insurance, and all other evidences of indebtedness which may be regarded as represent.

ing the debt, may, by a parol gift, and delivery of the paper by which the debt is evidenced, either with or without written assignment or indorsement, constitute a good gift mortis causa." There seems never to have been serious doubt of the validity of parol gifts of specialties negotiable by delivery, nor much controversy that a valid gift could be made by the delivery of instruments payable to bearer; but it was held in some early English cases that as delivery, without indorsement, of notes payable to order, and of nonnegotiable obligations, passed only the equitable title, a valid gift could not be made by such delivery. This holding rested upon the theory that it was necessary to resort to equity to compel the donor or his representative to transfer the legal title, and that equity would not lend assistance to compel the completion of a mere voluntary gift. This reason ceased to be of force when the donee became entitled to use the name of the donor or his personal representative in a suit to enforce collection of the instrument; and since all suits at law, as well as in equity, may be brought in the name of the real party in interest, the rule may be regarded as obsolete. As said in Thornt. Gifts, § 270: "The old rule, that impeded the holding of such gifts as valid, because the donee could not maintain an action thereon, is swept away by the more enlightened rule, which compels the personal representative of the donor, upon being indemnified for whatever costs he may be compelled to pay, to permit the action to be brought in his name, or by the equitable rule enforced by statutes or codes, that the real party in interest may bring an action upon a note he holds, whether it was indorsed to him or not." The right to give is as clearly incident to the right of property as the right to sell, and choses in action are as much within the scope of this principle as lands and chattels; and hence a delivery, by way of gift, of an instrument evidencing a debt, without written indorsement by the donor, as effectually transfers the beneficial interest in the property to the donee as would such delivery by way of assignment for value. It was said by the master of the rolls in Veal v. Veal, 27 Beav. 303, that it was a "much more healthy state of the law that the validity of such a gift should not depend on whether the donor had written his name on the back of the bills or not, if it be clear that he intended to give them." indorsement of the donor's name on the instrument is merely evidence of his intention to make a gift, which may be proven aside from such indorsement. In Grover v. Grover, 24 Pick. 261-263, the supreme court of Massachusetts, in answering an objection that no valid gift of a chose in action could be made without written assignment, said

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that "as a good and effectual equitable assignment of a chose in action may be made by parol, and as courts of law take notice of, and give effect to, such assignments, there seems to be no good foundation for the objection. It is true that the cases, which are numerous, in which such equitable assignments have been supported, are founded on assignments for a valuable consideration; but there is little, if any, distinction in this respect between contracts and gifts inter vivos,-the latter indeed, when made perfect by delivery of the things given, are executed contracts. 2 Kent, Comm. (3d Ed.) 438. By delivery and acceptance the title passes,-the gift becomes perfect and is irrevocable. There is therefore no good reason why property thus acquired should not be protected as fully and effectually as property acquired by purchase. And so we think a gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as sales." And this is the rule which prevails in the federal courts, and in all of the states in which the question has arisen; and it has been before the court of last resort in many of them. Thornt. Gifts, § 271.

In recent well-considered cases the rule has been applied to sustain gifts made by the delivery, without written transfer, of books of deposit issued by savings banks, in cases not distinguishable in any important feature from that now under consideration. In Camp's Appeal, 36 Conn. 88, it is held that "a delivery to a donee of a savings bank book, containing entries of deposits to the credit of the donor, with the intention to give the donee the deposits represented by the book, is a good delivery to constitute a complete gift of such deposits"; "that "a delivery of a chose in action that would be sufficient to vest an equitable title in a purchaser is sufficient delivery to constitute a valid gift of such chose in action, without a transfer of the legal title"; and that, under statutes which provide "that the assignee of a chose in action may sue upon it in his own name, a delivery of such chose in action would vest in the donee a legal title." In a case of the same kind in New York (Ridden v. Thrall, 125 N. Y. 572, 577, 26 N. E. 627), it is said the gift was consummated by the delivery of the savings bank book, "and no other formality to constitute the actual delivery of the bank deposits, or vest the possession and title in the donee, was needful." Pierce v. Bank, 129 Mass. 425, Tillinghast v. Wheaton, 8 R. I. 536, and Hill v. Stevenson, 63 Me. 364, are cases of the same kind, and in which the courts hold as above stated. We think, on principle and authority, the gift to the plaintiff was legally consummated, and the judgment in her favor should be affirmed. Judgment accordingly.

McWHINNEY et al. v. SWISHER. (Supreme Court of Ohio. April 19, 1898.) SURETIES OF GUARDIAN-GENERAL AND SPECIAL BOND-LIABILITY OF GUARDIAN FOR COMMINGLING FUND.

1. The liability of the sureties of a guardian upon his additional bond, given, pursuant to section 6285, Rev. St., to account for the proceeds of the sale of real estate of his ward, cannot be extended beyond the terms of their undertaking, although the guardian commingles such proceeds with money of his ward derived from other sources, for which he fails to account.

2. Although the proceeds of the real estate are exceeded by general payments made by the guardian from such commingled fund, his sureties are liable, in an action by the ward after majority, for all of such proceeds; they being within the amount of the general balance found in the hands of the guardian.

(Syllabus by the Court.)

Error to circuit court, Darke county.

Action by Olive Swisher against Frank McWhinney and another. From a judgment of the court of common pleas for an amount less than a tender made by defendants, plaintiff appealed to the circuit court, where judgment was rendered in her favor, and defendants bring error. Affirmed.

Miss Swisher brought suit in the court of common pleas, seeking to recover from the plaintiffs in error as sureties upon the additional bond of one Lowry, who had been her guardian before she attained her majority. The facts alleged in her petition and their answer are uncontroverted. On the 14th day of February, 1884, Lowry was qualified as guardian of the persons and estates of the minor children of Robert Swisher, deceased, who were the plaintiff and her brother and her sister; Lowry giving bond as required by section 6259, Rev. St., with sureties, who are not here parties. Thereafter, January 31, 1885, Lowry, as guardian, filed his petition in the probate court for authority to sell the real estate of his wards. Such authority was conferred by the probate court; the guardian giving the additional bond required by section 6285, Id., with the plaintiffs in error as his sureties; the condition of the bond being: "Now, if the said J. N. Lowry, as guardian as aforesaid, shall well and faithfully discharge his duties as such guardian, and well and faithfully pay over to the proper person or persons, and account for, all the money arising from the sale of said real estate, according to law, then these presents to be void; otherwise to be and remain in full force and virtue in law." Pursuant to the order of the probate court, the guardian sold the real estate for a price of which there remained $876.75 after payment of dower, costs, and taxes. One-third of this amount was received on account of the plaintiff. The guardian charged himself with the amount, but not in a separate account. He commingled said fund with moneys of his said wards received from

other sources; the amount so received on account of the plaintiff being $3,900. Lowry died November 8, 1891; and upon a settlement of his accounts in the probate court there was found due the plaintiff the sum of $2,061.71, after giving him credit for all payments made on her account. Before the commencement of the action the plaintiffs in error tendered to Miss Swisher $101.65 in full of the amount due her from them. The court of common pleas adjudged that she recover $99.90, and, in view of their tender, that she be charged with the costs of the action. On her petition in error in the circuit court, it was adjudged, upon the facts so admitted, that she recover $519.30 (that being her share of the proceeds of the sale of said real estate, with interest thereon), and that she recover costs in both the circuit and the common pleas courts. The plaintiffs in error ask that the judgment of the circuit court be reversed, and that of the court of common pleas affirmed. By a cross petition in error, Miss Swisher asks that upon the facts stated a judgment be rendered in her favor for the entire sum found to be in the hands of Lowry, from whatever source derived.

R. S. Frizell and Anderson & Bowman, for plaintiffs in error. Meeker & Gaskill and Allread & Teegarden, for defendant in error.

PER CURIAM. 1. The defendant in error is not, upon the facts stated, entitled to judgment for more than the proceeds of the sale of the real estate, since the liability of the sureties was, by the terms of the bond, limited to that.

2. She was entitled to the judgment rendered by the circuit court in her favor, because the proceeds of the sale of the real estate came into the hands of the guardian, and they were not by him accounted for. Although he had accounted for moneys in excess of her share of such proceeds, that could not, in a suit by her upon the additional bond, be presumed to have been, in whole or in part, on account of such proceeds. The case presents no question as to the rights of these sureties against those of the guardian upon his original bond. Judgment affirmed.

BOARD OF EDUCATION OF BUTLER TP.
V. BOARD OF EDUCATION OF VIL-
LAGE OF ELDORADO.
(Supreme Court of Ohio. April 19, 1898.)
DISTANCE FROM RESIDENCE TO SCHOOL HOUSE-
HOW MEASUred.

The distance of its residence from the school of its district, which, under section 4022a, Rev. St. 1897, entitles a child of school age to attend the school of another district, is 11⁄2 miles, by the most direct public highway, from the school to the nearest part of the curtilage of its residence.

(Syllabus by the Court.)

Error to circuit court, Darke county. Action by the board of education of the village of Eldorado against the board of education of Butler township. Judgment of the court of common pleas for plaintiff was affirmed in the circuit court, and defendant brings error. Affirmed.

The judgment of the court of common pleas was rendered in favor of the defendant in error in an action brought by it to recover upon the following facts appearing in the petition and answer: Ralph and Hollis Coblentz are children of school age residing in subdistrict No. 8 in Butler township, residing more than 11⁄2 miles from the school in the district of their residence. The school in the Eldorado village district is the nearest school to their residence. They were permitted to attend the intermediate grade of the school of the village district, that grade being below the high school. The expense per capita of running said intermediate school was $11.50. The payment of $23 was demanded and refused before suit. The answer admits that the residence of the children is more than 12 miles from the school in the district of their residence, if the distance is ascertained by measurement along the nearest public highway, but avers that it is less than 11⁄2 miles if measured in a direct line, and that the landowners along such direct line have always permitted the children to follow it in attending school, and that it is a convenient and practical route for them to travel.

Allread & Teegarden, for plaintiff in error. James A. Gilmore and D. W. Younker, for defendant in error.

PER CURIAM. The action was brought under favor of section 4022a, Rev. St. 1897 (92 Ohio Laws, p. 132). It provides as follows: "Sec. 4022a. The board of education of any township, district, (sub-district) joint sub-district, special or village district, within the state of Ohio, shall permit children of school age who reside further than one and one-half miles from the school where they have a legal residence under the school laws of Ohio, to attend the nearest sub-district or joint sub-district school; or the grades below the high school in special and village. districts * * * and the per capita current expense of running the school in the district where such children attend, for the term so attending, shall upon the demand of the board of education of such district, be paid by the board of education of the district where such children have a legal residence. * *" Counsel for the plaintiff in error contend that the distance from residence to school is to be taken "as the crow flies." The courts below properly rejected this aerial view of the subject. The legislation provides for the convenience of children in attending school and the distance is to be taken as they travel along the most

direct public highway from the school house to the nearest portion of the curtilage of their residence. Judgment affirmed.

STATE ex rel. HARTE v. BADER et al, County Com'rs.

(Supreme Court of Ohio. April 19, 1898.) CLERKS OF COMMON PLEAS COURT-BEGINNING OF TERM-APPOINTMENT.

Section 1240, Rev. St. 1897, relating to the precise subject of the date at which the official terms of clerks of the court of common pleas shall begin, requires that they shall in all cases begin on the first Monday in August next after the election, whether it be to succeed a clerk chosen at a general election or to succeed one appointed pro tempore to fill a vacancy.

(Syllabus by the Court.)

Error to circuit court, Hamilton county. Petition for mandamus by the state, on the relation of George B. Harte, against Frederick Bader and another, commissioners of Hamilton county. A demurrer to the petition was sustained in the common pleas court, and final judgment rendered for defendants, which was affirmed in the circuit court, and relator brings error. Affirmed.

ernor.

The plaintiff in error filed a petition in the court of common pleas, alleging, in substance, that on November 6, 1894, one George Hobson was elected clerk of the common pleas court of Hamilton county; that he qualified, and held the office until April, 1897, when he resigned; that the commissioners of the county appointed E. R. Monfort to fill the vacancy, and that he qualified and entered upon the duties of the office in which he continues to act. On the 2d day of November, 1897, the relator was duly elected to said office, receiving a certificate of such election and his commission from the govOn the 12th day of November he executed a bond according to law, and tendered it to the defendants for their approval. The commissioners, admitting that the bond was sufficient and proper in all other respects, refused to approve it because it was therein recited that the relator was elected "to hold said office for the term of three years beginning on and after November 2, 1897," they being of the opinion that the relator's term does not begin until the first Monday in August, 1898. The prayer of the petition is for a writ of mandamus commanding the commissioners to approve the bond. In the common pleas court a demurrer to the petition was sustained, and a final judgment was rendered in favor of the defendants. The judgment was affirmed by the circuit court.

Goebel & Bettinger and Peck & Shaffer, for plaintiff in error. Rendigs, Foraker & Dinsmore, Co. Sols., for defendants in error.

PER CURIAM. By section 16 of article 4 of the constitution the duration of the official term of the clerk of the court of common

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