The certificate by a bank that a check is good is equivalent to
acceptance and raises an implication that it is drawn upon
sufficient funds, that they have been set apart for its satisfaction
and will be so applied. See Blake v. Savings Bank Co., 189.
ACCOUNT OF ADMINISTRATOR-
An allowance to an administrator for extraordinary services in
the settlement of an estate is part of the statement of his
account. Such allowance can not take effect until the court,
after legal notice, acts upon settlement account, when-Ex-
ceptions to such allowance in the account constitute a direct
attack, and render the allowance subject to review. See
McMahon v. Ambach & Co., 103.
On trial for burglary, a variance between the allegation of the
indictment and the evidence, in the description of the building,
is not a ground for acquittal, unless such variance is material
to the merits of the case or is prejudicial to the defendant-
Section 7216, Revised Statutes. See State v. Turnbaugh, 63.
1. Removal of suit from state to federal court-Party procures
withdrawal of petition-And prosecutes action in state court-
Under agreement-Objection to jurisdiction can not be made,
when-Upon the filing in a state court of the requisite petition
and bond for the removal of the suit to a federal court, the
state court is divested of jurisdiction; but a party who procures
the withdrawal of the petition and bond, by the party who
filed it, before any action in the federal court, and then dis-
misses his action in the state court as to the party who filed
the petition for removal, and by agreement with the remaining
parties prosecutes the suit in the state court, can not be heard.
after judgment against him, to assert that the jurisdiction of
the state court had not been restored. Anderson v. Realty
Co., 23.
2. Devise to son, and if he dies without lineal descendants, etc.,
then over-Not sufficient to create estate in lineal descend-
ants-Son takes a fee defeasible-Law of wills-Where, in
a will, there is a devise to a son, and if he dies without lineal
descendants, living at the time of his decease, then over, these
words are not, by themselves, without assistance from other
parts of the will, sufficient to create an estate by implication
in the lineal decendants, but the son takes a fee defeasible
upon his death without lineal descendants, living at the time
of his decease, and in the event of lineal descendants living
at the time of the son's decease his fee becomes absolute and
such descendants have no interest under the will as against
his grantee. lb.
3. Tracks of steam and electric cars may cross, how-Act of
April 23, 1904 (97 O. L., 548), Sections 3333-1 and 2, Revised
Statutes-The act of April 23, 1904, (97 O. L., 548, Sections
3333-1 and 2, Revised Statutes), in the cases to which it applies
defines the policy of the state to be that the tracks of steam
and electric cars may cross at grade only in cases of necessity.
Railway Co. v. Traction Co., 136.
4. Junior company can not choose place of crossing-The junior
company may not defeat the operation of the act by voluntarily
choosing a place of crossing at which the grades can not be sep-
arated when there is a practicable place of crossing at which
the grades may be separated. Ib.
5. Costs shall be equitably apportioned-The act requires that
the cost of constructing and the expense of maintaining the
crossing defined by the court shall, by its order, be equitably
apportioned among the parties interested. Ib.
6. Weight of evidence not considered-Enforcement of interpre-
tation of statute-Although this court will not consider the
weight of evidence in such case, it will in a proceeding in error
to the circuit court examine the record to see that the order
of the circuit court is in accordance with a proper interpre-
tation of the statute. Ib.
An action for wrongful death against insane defendant may
be brought in county of his legal residence; and guardian
may be joined-Where guardian enters appearance and sum-
mons is issued to another county and served upon insane
defendant, and subsequently the action is dismissed as to
guardian, service can not be quashed. See Stuard v. Porter, 1.
A resident taxpayer of an incorporated village in which there
is no legal counsel, is not without legal capacity to maintain
an action to restrain illegal use of funds of village. See Pierce
v. Hagans, 9.
In an action for injuries to real estate caused by trespass,
the cause of action survives the death of the plaintiff; and the
action may be revived in the name of the executor or admin-
istrator. See Bank v. Telegraph Co., 89.
Under subdivision one (1) of Section 5314, Revised Statutes,
the plaintiff can not dismiss his action after final submission
of the case to the court. See Turner v. Pope et al., 153.
It is nowhere provided that one who loses money in a bucket-
shop may have a lien on premises where business is carried
on, which he may assert against a purchaser for value, the
purchase being made before suit to subject premises is in-
stituted and without notice. See Sanders et al. v. Penney, 221.
In a proceeding under Section 3333-1, Revised Statutes, to
procure an order as to method of crossing by railroads, only
the cost of such grade of approach as will be practicable should
be apportioned-If junior road desires a lesser grade, it may
be charged with additional cost-The cost of maintaining the
crossing must be apportioned-The cost of a crossing of suffi-
cient width to carry a double track, should be apportioned, when.
See Traction Co. v. Railway Co., 243.
An action to recover damages for causing public ditch to overflow
is not appealable, although there is a prayer for injunction to
prevent the continuing of the cause of the injuries. See Fisher
v. Bower, 248.
A lower proprietor of land upon a stream, may maintain an
action for the contamination of stream by artificial means,
by an upper proprietor, irrespective of motive which prompts
the latter. See Straight v. Hover, 263.
A person who is elected member of a city council but is refused
recognition by the members met to organize, is not entitled to
an injunction to enable him to exercise functions of his office.
See Holbrock v. Smedley, 391.
The provisions of paragraph d, of Section 244-26, Revised
Statutes, apply exclusively to judgment rendered by the court
of common pleas in an action brought under such section—
Either party may, within sixty days appeal or take the case
up on error-The time within which a proceeding in error
may be commenced in the supreme court is fixed by Section
6723, Revised Statutes. See Commission v. Railway Co., 419.
Act of Legislature-Abandonment of Exemption.
In order to review in the first instance, a judgment of conviction
for a crime, rendered by the mayor of a village, the circuit
court may grant leave, under the act of February 23, 1906,
(98 O. L., 12), to file a petition in error. See State v. Mat-
tingly, 79.
The act of April 23, 1904, (97 O. L., 548), Sections 3333-1 and 2,
Revised Statutes, provides that tracks of steam and electric
cars may cross at grade only in case of necessity-The
junior company can not choose a place of crossing, when-
Cost of construction and maintenance of crossing must be
equitably apportioned. See Railway Co. v. Traction Co., 136.
The act of April 18, 1904 (97 0. L.. 138), may not be so con-
strued as to charge an owner of lands which are, and are to
remain, unenclosed, with any part of the expense of a line
fence for the sole benefit of the adjoining proprietor. See
Coal Co. v. Cozad, 348.
A parol agreement between adjoining land owners to erect
and maintain telephone line on their lands, does not create
an easement but merely a parol license and is revocable by any
owner although line has been constructed in reliance thereon.
See Yeager v. Tuning, 121.
An allowance to an administrator for extraordinary services in
the settlement of an estate is part of the statement of his
account-Such allowance cannot take effect until the court,
after legal notice, acts upon the settlement account, when-Ex-
ceptions to such allowance in the account constitute a direct
attack, and render the allowance subject to review. See Mc-
Mahon v. Ambach & Co., 103.
ABANDONMENT OF CHILD-
Upon the trial of the husband under an indictment for child
abandonment, the wife is not a competent witness to testify
against him. See State v. Orth, 130.
ABANDONMENT OF EXEMPTION-
Where an assignor for the benefit of creditors is induced to
forego selection of personal property for exemption in lieu
of homestead, by representation by assignee that he must wait
until the property is sold, actual selection is waived, and the ex-
emption is not abandoned. See In re Assignment of Kraus, 314.
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