ASSIGNMENT OF CAUSE OF ACTION IN TORT-ACTION FOR NEGLIGENCE AGAINST RAILROAD.

In Vimont v. Chicago & N. W. Railway Co., 20 N. W. Rep., 9, the Supreme Court of Iowa decided that an action for a tort is assignable so as to vest in the assignee a right of action in his

own name.

In that case, J., who was injured by negligence of defendant railroad company, assigned his claim for damages to V., and V. executed the following agreement: "In consideration of the assignment to me by J. of his claim for damages against the Chicago & Northwestern Railway Company, resulting to him by reason of an injury received by him on or about the thirty-first day of August, 1881, on said railway, I hereby agree to dispose of the entire amount realized on said claim as follows: For my own compensation in and about the prosecution of said claim, and for the use of any advances of money I may make I am to retain thereof the sum of fifty dollars; I am also to retain all sums of money that I may advance in the prosecution of said claim; next, I agree to pay out of the proceeds of said recovery the reasonable fee of the attorneys and agents employed to prosecute said claim on such fee therefor, as may be agreed upon, if any agreement for a specific amount shall be agreed upon, and the balance of said recovery I agree to pay to the said J." Held, that the cause of action was assignable; that the assignment and agreement did not constitute barratry, champerty, or maintenance; and that V. was entitled to maintain an action for damages against the railway company in his own name.

And in such an action, even if it should appear that the assignment was colorable and fraudulent, the assignor need not be made a party to the action.

Held, further, that where an assignment of a cause of action is legal and valid, the fact that it was made for the express purpose of depriving defendant of the right to remove the case to a federal court on the ground of citizenship, will not invalidate it or entitle defendant to such removal.

Computation of Time-Statute of Limitation.—When the time is to be computed from a date the day is excluded, and when it is to be computed from an event or an act the day is included. McCulloch v. Hopper, Passaic Cir. Ct., N. J. 7 N. J. Law Rep., 336.

No. 470. Lowe v. Redgate. Error to the District Court of Montgomery

County. FOLLETT, J.

1. A. owned adjacent lots lying north of an alley and east of a street, and he laid out an alley extending east from the street on the west through the middle of the lots, and the part south of the alley he divided into sub-lots abutting on the alley, and made a plat of the same so divided; A. then sold to B. a sub-iot on the south side of this new alley, and prepared the deed for it by the aid of the plat, and showed both the deed and the plat to B., who insisted that the deed should contain a conveyance of the use of the new alley; and before executing the deed A. put into the granting clause of the deed the words, "The above named grantee, B., is entitled to the use of another alley lying north of the premises hereby conveyed. Possession to be given April 1, 1874;" then the deed was executed, the purchase money was paid, and the deed was delivered to B.; as between A. and B. or her heirs or as igns. Held: (1) A. is estopped from denying the existence and location of the new alley, and the plat and deed are conclusive against such denial. (2) A. thereby granted to B. an easement in the alley appurteuant to the sub-lot conveyed to B.

2. Where husband and wife are sued for alleged trespasses by the wife on a private alley in which the wife in her own right claims an easement and right of use appurtenant to a lot owned by her, in default for answer by the husband the wife may make a separate defense without prejudice by such default, and, if her defense is good, it is complete as to both.

Judgment affirmed.

464. Bridenbaugh v. King. Error to the District Court of Hardin Co. OWEN, J.

The holder of such certificate of purchase of state land as entitled him to a deed from the state upon its presentation, who has remained out of possession and omitted for forty-three years, without excuse, to perfect his title by obtaining his deed, cannot be heard, as against a subsequent occupying purchaser in good faith, and for full value from a subsequent grantee of the state, to call in question the validity of the deed from the state, in an action by such purchaser to quiet his title as against the holder of such certificate, by showing the recitals of the state's deed to be untrue.

Judgment atfirmed.

Fastbinder v. The State. Error to the Court of Common Pleas of

Columbiana County.

JOHNSON, C. J. Held:

1. In order to convict of shooting at with intent to kill, it must be averred and proved that the gun was loaded with powder and a bullet or some other destructive substance, which when discharged from the gun is calculated to produce death.

2. The fact that the gun was so loaded may be proyed by either direct or circumstantial evidence.

3. Where during an angry and violent altercation between the prisoner and the prosecuting witness, the former threatened to shoot the latter, and immediately thereafter procured a gun and discharged it at the latter, it is error for the Court to charge the jury, that from this threat alone, they might infer that the gun was loaded.

Judgment reversed.

784. Massillon Pigeon Run Coal Co. v. Thompson et. al. Error to the District Court of Cuyahoga County. Settled by agreement on file at defendants' costs. Judgment for costs.

MOTION DOCKET.

.320. The State of Ohio ex rel, Albert D. Ross v. The Board of Education of the City of Delaware, Ohio. Mandamus.

MCILVAINE, J., Held:

1. Section 3988, clause 4, of Revised Statutes, which provides that a board of education engaged in the erection of a school building, “ may, in its discretion, reject all the bids," does not authorize the acceptance of any "but the lowest responsible bid."

2. In mandamus the relator who seeks to compel a board of education to award him the contract for erecting a school building must show a clear legal right in himself. It is not enough to show defects in the title of another to whom the contract has been awarded.

3. The board may waive defects in the form of a bid, where such waiver works no prejudice to the rights of the public for whom the board acts.

4. Where a bid is uncertain as to whether it is for parts of a job as well as for the whole, and the bidder induces the board to construe it as for all or none, such bidder cannot afterwards complain that the board awarded the whole job to a lower bidder, although under a different construction, the board would have been bound to award to such bidder a portion of the work.

Writ refused.

339. The State ex rel. Attorney General v. Covington & Brady. Motion to take case No. 878, General Docket, out of its order and to assign a day for hearing. Motion granted and case set for hearing December 4, 1884.

344. Rice & Co.v. Stout.

Motion for leave to file a petition in error to

the District Court of Putnam County. Motion overruled.

346. Cass v. Brand & Co. Motion for leave to file a petition in error to

the District Court of Putnam County. Motion granted.

No. 397. Ryan's Heirs et al. v. O'Connor. Error to the District Court of Hamilton County.

MCCAULEY, J.

Where a grantee holds the legal title to lands in trust for the grantor, and without the knowledge of the grantor conveys the lands to another upon the same trust.

In an action by the grantor against the heirs of the second grantee to enforce the trust upon which he took the legal title.

Held, 1. That the first grantee was not a necessary party.

2. That the first grantee was a competent witness for the first grantor against the heirs of the second grantee to establish the trust in the property.

3. Where after a deposition was taken, new parties were made, and they filed no exceptions to the deposition at any time, and on the trial objected to it only on the ground of incompetency, they waived the objection that they had no notice of the taking of the deposition as required by Section 5273, Revised Statutes.

4. That parol testimony is admissible to show that a deed purporting to have been made for a stated consideration in money, was in fact made without consideration, and that the grantee held the lands in trust for the grantor.

Judgment affirmed.

548. Ogle v. Ogle. Appeal. Reserved in the District Court of Fulton County.

MARTIN, J.

A vendor, supposing that a woman whose husband was not living with her, was unmarried, sold her a tract of land and took notes and a mortgage back for a part of the purchase money.

In an action by an assignee of the notes, Held: The deed and void mortgage are one transaction and subsequent purchasers with notice took title in trust for the payment of the mortgage notes.

Decree for plaintiff.

468. L. M. Læser et al. v. Edward Humphrey. Error to the District Court of Cuyahoga County.

DICKMAN, J.

L. & Co. carelessly and negligently left their horse, which was harnessed and hitched to their wagon, standing in a public street, without being properly tied or guarded. The horse ran away, and tho wagon violently collided with the wagon of H., in which he was sitting, whereby he received severe bodily injury. At the time of his injury H. was free from contributory negligence. Immediately

after his injury, he employed a physician "of good standing and reputation," placed himself under his treatment, and followed his directions. Held:

1. That although the physician may have omitted to apply the remedy most approved in similar cases, and by reason thereof, the damage of H. may not have been diminished as much as it otherwise would have been, he may still recover of L. & Co. for his actual damage. 2. That the collision was the proximate cause of the damage. Judgment of the district court affirmed. 440.. Campbell v. Johnson.

Couuty.

NASH, J.

Error to the District Court of Lawrence

In an action upon an administrator's bond, by the widow, who was the sole owner of the deceased husband's estate, one of the sureties in his answer averred that the administrator at the time of his appointment was wholly insolvent and has ever since remained so; that the decedent's estate consisted solely of a note for $3,000, due from the administrator; that there were no debts due from the estate; that the widow was the only person interested in the estate; that he was induced to become surety upon the bond by the fraudulent representations and acts of the administrator and the widow, and that the purpose of such representations and acts and such appoint. ment was to make him responsible for the administrator's otherwise worthless debt.

Held: That the answer stated a good defense.

Judgment reversed.

549. Mary Jane Quigley v. Zephaniah Mitchell et al. Error to the District Court of Morrow County.

BY THE COURT:

In February, A. D. 1866, in Morrow county, Ohio, John and Lusanna Cook legally adopted Mary Jane Paschal. The order of the Probate Court declared that from thenceforth her name should be Mary Jane Cook, and that she "should to all intents and purposes be the child of said John Cook and Lusanna Cook." Lusanna Cook died, without issue, in February, 1873. In January, 1879, her father, Daniel Mitchell, died intestate, seized of certain non ancestral real estate. Mary Jane claimed the share of said estate that would have descended to Lusanna, if she had survived her father. The Common Pleas denied her claim, and the District Court affirmed the judgment. Held: This was right. Sec. 3140, Rev. Stat. of Ohio, as between the adopting parents and the adopted child, bestowed upon the latter all the rights and privileges of a child of the former begotten in lawful wedlock; but did not make the adopted child of Lusanna "of the blood of Lusanna's father." Her right to inherit is limited to "the property of such adopting parent."

Judgment affirmed.

487. William Miller v. H. Wright Spain. Error to the District Court of Champaign County,

BY THE COURT.

W., as principal, and S. as surety, for value, made and delivered their