Without Opinion.

erly and effectively, and attached to the purchase money received therefor.

Fourth. That if under the laws of Virginia, it was necessary for William Leigh, executor, to obtain the consent and order of a court of competent jurisdiction to sell lands of which his testator had not died seized, but were purchased by the executor after the death of his testator in pursuance of the authority and discretion vested in him by the will, the presumption obtains that such order and direction of a court of competent jurisdiction was obtained prior to the sale and conveyance of the lands, and that he fully accounted for the proceeds of the sale; that no evidence was offered to the contrary, and that by reason of the fact that the records of the proceedings of the executor and the settlements made by him were destroyed by fire when the court house in Richmond, Va., was burned almost fifty years before the commencement of this action, the burden is upon the plaintiffs to prove by preponderance of the evidence that no such order was obtained and that no record thereof was ever made.

Fifth. That no evidence was offered tending to prove, that William Leigh, executor, had not fully, properly, and honestly administered his trust, according to intent and purpose of the testator and according to the terms and directions contained in the will of John Randolph, or that the beneficiaries of the trust created by this will have not received the full benefit of the entire trust fund including the part invested in these lands and restored to the trust funds from the proceeds of their sale.

Cases Reported Without Opinion.

Sixth. That it appears from the evidence, that these manumitted slaves were fully advised of their destination and of the fact that these lands had been purchased for their use in Mercer county, and if William Leigh as executor had no power or authority to sell said lands and apply the proceeds of the sale of their uses in other localities, that his act in so doing was an open, notorious violation of his trust, known to them and acquiesced in by them at the time, and this action is barred by the statute of limitations.

NICHOLS, C. J., WANAMAKER, NEWMAN, JONES, JOHNSON and DONAHUE, JJ., concur.

MATTHIAS, J., not participating.

INDEX.

ABANDONMENT —

Question abandonment of office of highway commissioner under
prior appointment. See State, ex rel., v. Cowen, 277.

Liability of street railway company to reimburse municipality
for repairs on viaduct after railway route abandoned. See
Cin. St. Ry. Co. v. Cincinnati, 297.

ACCEPTANCE-

Consenting to probate and acceptance of legacy not a bar to
right to contest will, when. See Kelley v. Hazzard, 19.

ACKNOWLEDGMENT —

Power of attorney to execute lease must be acknowledged and
recorded, under Sections 8512 and 8536, General Code, or valid-
ity of lease affected, how. See Lithograph Bldg. Co. v. Watt, 74.

ACTIONS-

Consenting to probate and acceptance of legacy not a bar to
right to contest will, when - Tender back of legacy-
Estoppel as defense. See Kelley v. Hazzard, 19.

Injunction lies although acts punishable as crime, when. See
Renner Brewing Co. v. Rolland, 432.

Suits against state not authorized by Section 16, Article 1, Con-
stitution, 1912, in absence of legislative action. See Rauda-
baugh v. State, 513.

Claimant may sue purchaser of personalty sold by sheriff on
execution, when. See Solze v. Solze, 584.
Malicious prosecution and probable cause.

See Penna. Co. v.

Statutes of limitations in action to enforce stockholder's liability.
See Harth v. Druggan, 588.

Erroneous reversal because sufficient facts not pleaded - All
assignments of error to be considered. See Taylor v. Toledo,
603.

ACT OF GENERAL ASSEMBLY-

Construction to be given where legislature declares purpose of
act in its title. See Collings-Taylor Co. v. Fidelity Co., 123.

Age and Schooling Certificate

-

Appeal and Error.

AGE AND SCHOOLING CERTIFICATE—

Age and schooling certificate provided by Sections 7765 and 7766,
General Code, required of employers by Sections 12975 and
12994, General Code-Certificate not required during vacation.
See Collings-Taylor Co. v. Fidelity Co., 123.

AGENCY-

--

Rights and liabilities under defectively executed lease by agent
acting under insufficient power of attorney- Ratification-
Estoppel-Imputed knowledge - Possession, rents and tenancy.
See Lithograph Bldg. Co. v. Watt, 74.

--

Scope of Section 9586, General Code, making solicitor of in-
surance the agent of company - Reformation of fire insurance
policy because of misdescription of property. See Fire Ins. Co.
v. Machine Co., 442.

ALIAS-

Failure to prove alias not fatal variance, when. See State v.
Schaeffer, 215.

AMENDMENTS-

Office of highway commissioner not abolished by amendment, re-
peal and recodification of highway laws. See State, ex rel., v.
Cowen, 277.

Repeal or amendment of ordinance merging offices of city clerk
and auditor Section 4276, General Code (106 O. L., 483).
See State, ex rel. Symons, v. Rice, 574.

APPEAL AND ERROR-

Courts of appeals may review finding of mayor in local option
proceeding under Section 6152, General Code - Section 6164,
General Code, authorizing error proceedings, is constitutional.
See Heininger v. Davis, Mayor, 205.

Appeal lies from industrial commission to common pleas court
by employe who is denied compensation from self-insured em-
ployer. See Reinholz v. Indus. Comm., 457.

Dismissal by supreme court because no final judgment rendered
by court of appeals. See Cincinnati v. Cormany, 596.
Appellate jurisdiction of court of appeals in action on mechanic's
lien. See Hollowell, Exrx., v. Schraden, 599.

Appellate jurisdiction of court of appeals. See Cin. Trac. Co. v.
Cincinnati, 602.

Assault and Battery - Attachment.

ASSAULT AND BATTERY-

Not error to fail to charge jury as to assault and battery in
manslaughter trial, when. See State v. Schaeffer, 215.

ASSESSMENTS--

1. Sewers - Exemption - Burden to prove local drainage suffi-
cient - Where, pursuant to appropriate legislation regular
throughout, an assessment is levied upon lots and lands for the
construction of a sewer in a city street, and exemption of a
lot abutting thereon from assessment for the construction
thereof is claimed on the ground that it is provided with local
drainage, the burden is upon the owner to show that local
drainage has been provided which is adequate to meet the needs
of such lot both for surface drainage and the usual purpose
of sewerage. Cincinnati v. Polster, 155.

2. Sewers-Exemption - Local drainage - Across lot of another
-A lot is not so provided with local drainage as to exempt
it from assessment for the construction of a sewer in the street
upon which such lot abuts, where it appears that its only
drainage facilities are afforded by a privately constructed drain
through the adjoining premises over which the owner of the
lot in question has no control and no right to use and maintain
such sewer. Ib.

3. Sewers-Exemption - Local drainage - Permanence of con-
struction and right to maintain - Exemption of such lot from
assessment on the ground of present adequate drainage is war-
ranted only when it is shown that the drain whereby it is
served is permanent in its character of construction and the
owner of such lot has a right to permanently maintain and use
it. Ib.

Proof to sustain petition to enforce unpaid liquor assessments -
Sections 2667 and 2669, General Code- Section 6085, General
Code, having been repealed (102 O. L., 291), duplicate provided
thereby is not authorized by law. See Brewing Co. v. Schultz,
Treas., 27.

ATTACHMENT-

1. Attachment statutes are remedial - Statutes pertaining to at-
tachment and the procedure incident thereto are of a remedial
nature. Weirick v. Lumber Co., 386.

2. Attachment statutes liberally construed - To reenforce this
general rule the general assembly of Ohio has specially enacted