or village, to deal with streets and alleys, each tribunal must follow the language of the statute pertaining to it. One cannot borrow from the other. Nor can authority not expressly conferred be derived by implication. The jurisdiction conferred on the court is special and the act conferring the jurisdiction must be strictly followed. It is quite clear that if the general assembly ever intended to empower the court of common pleas to narrow a street or alley, it would have so expressed itself at some time during the past three quarters of a century or more; especially, when it had knowledge that it had given municipal councils that power. It has not been a matter of oversight, but on the contrary it has been the steady, consistent pursuit of an original purpose. There are some apparent reasons which might be furnished for this, but the statutory reasons alone are sufficient. It has been suggested, that because the court has power to vacate a street or alley, it may vacate a strip along one side of a street, on the theory that the greater includes the lesser. That axiom is sometimes convenient in summing up mathematical calculations in matters of space or quantity; but it would not be a safe rule to adopt in ascertaining legislative intent, or in measuring the jurisdiction of a court in a special proceeding. If the word alley had been left out of the court section, would it be claimed that the court could vacate an alley, which is less than a street, because the court is authorized to vacate a street. Or, if the word alley had been omitted, would it be claimed that the court could establish an alley, because it can establish a street which is a larger throughfare? We believe the power to narrow a street is left alone with the council because it is intrusted with the care and control of the streets and alleys and other public ways of the city or village, and it is better qualified locally to determine when it is proper to narrow an existing street. Its action in so doing, leaves to the abutting owner his easement in the vacated portion, while the narrowing by the court, if it had such power under the guise of vacating, would take the easement from him by assessing damages. Therefore, when the court orders vacation of a street or alley, it must be from side to side, or the width of the street. This does not mean that the street or alley must be vacated its entire length, but the entire width, of such part of the street as should be vacated, under the terms and prayer of the petition. Applying our meaning to this case, the court was empowered to vacate Clay street between Front street and the Ohio river, but not empowered to narrow the street by vacating a strip along one side of the same. Counsel for defendant in error cite and rely on Matter of Henry Street, 123 Pa. 346, 16 Atl. 785; In re Swanson Street, 163 Pa. 323, 30 Atl. 207; City of Mt. Carmel v. Shaw, 155 Ill. 37, 39 N. E. 584, 27 L. R. A. 580, 46 Am. St. Rep. 311. In the matter of Henry Street, supra, the proceeding was to vacate a street, not to narrow one. The petitioners asked vacation of the street in its entirety and the question here was in no way involved. The same may be said of In re Swanson Street, supra, except that the petition asked to vacate a part of a certain street (Swanson street) in Philadelphia lying between Washington avenue and Prime street. The question raised was whether under a statute authorizing the vacation of a street or road, a part of the same may be vacated, and it was held that the part between said avenue and Prime street could be vacated. On page 326 of 163 Pa., page 208 of 30 Atl., the statute of that state is quoted as follows: "Whenever any private or public lane, alley, road or highway shall, by reason of forming town plats or otherwise, become useless to the public, etc. * * * And upon hearing all parties interested, it shall be lawful for the court to decree the vacation of any such lane, alley, street or highway." Continuing, that court said: "But it does not follow from this that a power to vacate part of a road cannot be deduced from legislation which gives power to vacate the whole of it. In all ordinary circumstances the power to do a greater act includes the power to do the lesser act, which is part of the greater. * The statutory condition upon which the power is conferred is the same in both cases, to wit, 'Whenever the same shall become useless to the public and those having lands bounding thereon.'" "This condition may become true of a part, as well as of the whole of a long public road; or a long street of a city. When it occurs in a city, the vacation of the useless portion may be accomplished with little or no inconvenience to the property owners on the remaining portion of the principal street, because there are always crossing streets at short distances apart, through which free communication can be had with all the streets." It is plain that the right to narrow a street was not involved. The holding is that under the statute of Pennsylvania quoted above, the court could vacate a part of a street between cross-streets. We have said as much for our statute, that it was within the statutory jurisdiction of the court of common pleas on a proper petition, to vacate Clay street its entire width between Front street and the Ohio river, but that the power to narrow as prayed for in this case, did not exist. The City of Mt. Carmel, supra, presents a very different case. It involved the narrowing and changing of a street by the municipal authorities, and the Supreme Court of Illinois held on that subject, that, "under the power given by a statute to a city to vacate streets, it may vacate a strip upon each side of of a street so as to narrow it, where the purpose of narrowing is not to benefit private owners, but because it is deemed that so great a width of street is not required for public use." The power conferred upon the municipal authorities of that state, in reference to streets, are also very broad; but in this state the legislature has expressly authorized councils to narrow streets and alleys, and the decision is not relevant here where we are considering the limited jurisdiction of the court of common pleas. The demurrer to the petition should have been sustained. The judgments of the circuit and common pleas courts are reversed, and the original petition dismissed. Reversed. SHAUCK, C. J., and CREW, SPEAR, and DAVIS, JJ., concur. (74 Oh. St. 173) HOILES v. RIDDLE et al. (Supreme Court of Ohio. May 1, 1906.) LIMITATION OF ACTIONS-CAUSE OF ACTION ACCRUING AT DEATH OF DEBTOR-APPOINTMENT OF EXECUTOR OR ADMINISTRATOR. The statute of limitations (sections 4976, 4981, Rev. St. 1906) does not begin to run against a debt based upon a contract not in writing which becomes due by reason of the decease of the debtor, until the appointment of an administrator or executor on the estate of such debtor, and due notice thereof. [Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, §§ 427, 431.] (Syllabus by the Court.) Error to Circuit Court, Columbiana County. Action by Amanda Hoiles against Lodge Riddle, administrator of Robert Watson, and others. Demurrers to the petition sustained, and plaintiff brings error. Reversed and remanded. An action was commenced August 29, 1903, by Amanda Hoiles (plaintiff in error) in the court of common pleas of Columbiana against Lodge Riddle, as administrator of Robert Watson, deceased, to recover a money judgment in the sum of $3,310, and interest, against him as such administrator, and William C. Watson, who claims to be an heir of the deceased, and Jacob Freshley, who claims to hold title to certain lands by purchase from the estate. The plaintiff's claim had been presented to the administrator for allowance, but because of a written requisition on him by the defendants Watson and Freshley, accompanied by a statutory bond, was, on August 6, 1903, rejected. In her petition plaintiff declared upon an alleged contract made by plaintiff's father with Robert Watson, deceased, in the year 1863, when plaintiff was an infant two years of age, her mother being deceased, by which, upon the consideration that plaintiff's father would relinquish and surrender the control and possession of plaintiff, and her services, society, and care to said Robert Watson and his said wife, they were to take plaintiff, adopt her, keep, clothe, and provide for her, give her their own name, and thereafter treat her as their own child; and said Robert Watson further agreed, upon the same consideration, that he would give her all the personal property he owned or possessed at his death, which property she was to have and receive at his death if he survived his wife, Mary Watson, but, if his wife survived him, then plaintiff was to have and receive said property at the death of his said wife. Immediately, and in pursuance of the contract, plaintiff's father did relinquish her to said Robert and Mary Watson, and they did receive her and did give her their own name, by which until her marriage she was always known, but did not adopt her by statutory adoption. Robert Watson died April 26, 1895, leaving a last will by the terms of which he gave all his estate to his wife, Mary. At the time of his death he was possessed of personal property of the value of $3,310, no part of which was ever received by plaintiff. Mary Watson died September 12, 1899, leaving no will. No administration was taken out on the estate of Robert Watson until April 6, 1903. The defendants Watson and Freshley each filed a demurrer to the petition on the grounds: (1) That it does not state a cause of action; and (2) that more than six years have expired from the time the cause of action, if ft ever existed, accrued, and that it was barred by the statute of limitations. These demurrers were sustained, and the case dismissed by the common pleas, and this judgment was affirmed by the circuit court. The plaintiff brings error. William H. Spence, for plaintiff in error. Craine & Snyder, for defendant in error Freshley. David Fording, for defendant in error Watson. SPEAR, J. (after stating the facts). The entire petition is not reproduced in the statement because it was practically conceded at the argument, and such seems to have been the view of the circuit court, that the petition states a cause of action unless the plea of the statute of limitations is fatal to it. But it is insisted by counsel that the cause of action, if one existed, accrued not later than the time of the decease of Robert Watson, and, more than six years having elapsed before commencement of suit, the claim is outlawed, and such was the opinion of the majority of the learned circuit court, as appears by the report of the case. 26 Ohio Cir. Ct. R. 363, opinion by Cook, J. The opinion pertinently inquires: What is required by a creditor who seeks to enforce a claim under a contract made in this state which accrued at the death of the debtor? Can he remain idle for an indefinite period, although no administration be taken out upon the estate by the next of kin? Or is it the duty of the creditor to be diligent in having an administrator appointed in order to save his claim from the bar of the statute? In this case plaintiff in error took no steps whatever to save her claim until April 6, 1903, a period of nearly 18 years. If the rule is that the statute did not begin to run until an administrator was appointed, then claims of this nature would never become stale, as in suits at law the statute alone controls as to whether a claim is stale or not. A party might wait, as in this case, until all the witnesses to the contract but one, who was interested as a father, were dead, and then have an administrator appointed and commence action. Section 6005, Rev. St. 1906, gives authority to the probate court, where the next of kin are incompetent, or unreasonably neglect to take administration to appoint a creditor, or some person whom the court may think fit. So that it was plaintiff's privilege to cause letters to be issued and then commence her action. This opportunity was neglected until long after the statute had run against her claim, and she ought not now to be heard. Concretely stated the holding is that in such case the statute runs from the time the creditor should have had an administrator appointed, and not from the time letters were in fact issued. Divers authorities are cited by the learned judge which are believed to support these views. These, with others, will be found in the reporter's notes. One member of the court, Burrows, J., maintained a contrary view. He held, in substance, that the decision by the majority is not based upon any statute which meets the circumstances of this case; but the broad claim is made that the commencement of the period of limitation is not coexistent with the time when the right to bring an action in fact exists in favor of the creditor, but when by proper steps he might, by other proceedings, have procured the right to bring his action. In other words, the statute is to be judicially amended so that its bar becomes effective after six years from the time the cause of action might have been made to accrue, and not from the time it in fact did accrue. It seems plain that, unless our courts are to be governed by the statutes of other states, we have merely to decide whether the statute of limitations begins to run when the right to sue is perfect, or when such right does not exist, but may be brought into existence by the act of the creditor. The proper answer to this question is that, in the absence of a positive provision of the law depriving a creditor of his right to have payment, or exonerating the debtor from the duty of making payment, it is not the duty and not within the power of the courts to add to the statute of limitations by attaching a condition to the right to prosecute an action which is not found in the statute itself; that to do so would be to exercise legislative rather than judicial power. The general statutes limiting the time when actions may be commenced do not make provision for the enforcement of claims against the estates of decedents, and proceedings for the latter purpose are governed by the law regulating the settlement of estates. It is not contended that the claim of the plaintiff below is barred by any provision relating to the settlement of estates; nor is it claimed that there is any provision of statute which in terms meets the circumstances of this case, but only that it is barred by section 4981 of the Revised Statutes of 1906. To engraft upon the statute the condition contended for would be simply a judicial amendment or supplement to the statute. to the statute. One feature of the general policy of our statutes is indicated by the terms of section 4989, where it is provided that, when a cause of action accrues against a person who is out of the state, or where he leaves after the cause accrues, the time he is absent shall not be counted. In a suit involving absence it should be as reasonable to say, in case it should be made to appear that, although the debtor was himself absent, yet all the time of such absence he had property within the state reachable by attachment, that fact should require the court to hold that the case presented an exception to the application of the general rule as it is to hold in this case that the failure by the plaintiff to have an administrator appointed takes the case out of the general rule and defeats the plaintiff's right to a recovery. We find ourselves in agreement with this view of the dissenting judge. Let us start with a clear understanding of the exact issue. The inquiry is not what rule should apply in a case where the cause of action has already accrued, and the question to be answered is simply what will suspend the operation of the statute, but what rule is to apply where the right to maintain an action has not yet accrued. In cases involving the first inquiry, interposition is asked of the court to arrest the operation of a statute already in full effect; in the other, to breathe life into a statute as yet without vitality. This distinction, in our judgment, eliminates from consideration Granger's Adm'r v. Granger, 6 Ohio, 35, and a large number of cases from other states cited and relied upon in support of the judgment below, some of which may be particularly referred to further on. Statutory provisions which are invoked to defeat the plaintiff's claim are section 4976 of the Revised Statutes of 1906, to the effect that civil actions can only be commenced within the periods prescribed in this chapter after the cause of action accrues, and 4981, which limits the right to commence an action to six years upon a contract not in writing. When, therefore, did the cause of action in this case accrue? When did it arise? When did it first exist? It seems to be conceded on all hands that it did not accrue prior to the death of Robert Watson. We cannot conclude that it accrued at the moment of the decease of Robert Watson, because to do so would be to ignore or overturn a fundamental rule of law, to wit, that, in order to give a right of action. there must be a party in existence capable of suing and one capable of being sued, and, as an inevitable consequence of this principle, if it be applicable, the action cannot accrue, and the statute cannot begin to run, until there are in existence a person who may be plaintiff, and one who may be made defendant. We understand that this as a general rule is conceded, and yet it may not be amiss to call attention to two Ohio cases in which the rule has been distinctly announced. Taylor v. Thorn, 29 Ohio St. 569, 574; Treasurer v. Martin, 50 Ohio St. 197, 33 N. E. 1112. It is true, as insisted by counsel for defendants in error, that in a number of states the courts have held that, where it is within the power of a claimant to have a personal representative appointed, a reasonable time only in which to secure such appointment is allowed, after which the statute will run; but in a large proportion of these cases, if not all of them, the cause of action had accrued before the decease of the debtor, and the statute was therefore running at the time of such decease. Those cases present the question of what will suspend the operation of the statute after it has commenced to run, and not what will start it to running. Bauserman, Adm'r, v. Charlott, 46 Kan. 480, 26 Pac. 1051, is of this character. Charlott's judgment, which was the basis of his action, had been obtained long before the death of the judgment debtor, and the statute of limitations was then running. The statute of Kansas in force permitted the judgment creditor, in case the widow or next of kin neglected to take out letters for 50 days after the death of the decedent, to obtain such letters for himself, or some other person, and the court held that the statute continued to run notwithstanding the decease of the debtor, and, the statutory limit having expired, the debt was barred. We have a different case. Two other decisions of the same court more nearly resemble our case in principle. In Carney v. Havens, Adm'r, 23 Kan. 82, opinion by Brewer, J. (now of the United States Supreme Court), the holding is that, "where services are performed under a single and entire contract, in the absence of stipulations to the contrary, payment is not due until the services are fully performed and the contract completed, and if, pending such a contract, the party employed to render the services dies, the statute of limitations does not begin to run on the claim for compensation until, by the appointment of an administrator or executor, there is some one authorized to collect and receive the compensation." This ruling was followed in Mills v. Mills, 43 Kan. 699, 23 Pac. 944, where the holding is that, "where a cause of action upon an agreement does not accrue until after the death of one of the parties, the statute of limitations will not begin to run on the claim of the estate of the deceased upon such agreement until an administrator or executor authorized to collect or enforce the payment of the claim has been appointed." These cases are not disapproved in Bauserman v. Charlott, supra, but it is distinctly stated in the opinion that "it is not necessary at this time to reconsider any of the former decisions of this court." But, more than this, it is, we think, a mistake to assume that the statute of Kansas respecting the appointment of administrators is in all essential respects similar to ours. That statute, as above shown, enjoins upon the widow or next of kin a duty to procure administration within 50 days from the death of the decedent. No such duty is enjoined by our statute. By section 6005, if the widow and next of kin are incompetent or evidently unsuitable, or if they neglect without sufficient cause to take administration, the court may appoint a creditor, or any competent person, but there is no limit defined by statute, unless it is found in section 6014, which provides that administration shall not be originally granted as of right after the expiration of 20 years from the death of the deceased. It would seem not unreasonable to assume that the language of the Kansas statute implies a different intent from that to be gathered from the sections of our statute bear ing on the subject. But there is still another view of this situation. The holding of the circuit court is really put upon an equitable ground, a ground in the nature of an estoppel. The plaintiff, says the court, has been guilty of laches, in that she failed to avail herself of the means within her power to preserve her claim. May not this criticism apply also to the parties of the other side, Watson, the heir, and Freshley, the purchaser? Did they not omit to do that which they might easily have done to protect their titles? By the procurement of letters of administration, and due notice, Watson could easily have caused the statute to begin to run against the plaintiff's claim, and Freshley could easily have refused to buy until that had been done, and we think it reasonable to assume that the law in this respect is as likely to have been known by these men as that the law with respect to the appointment of an administrator was known to the plaintiff, a woman. From a business standpoint, it was negligence on the part of these men to take the chances with respect to their titles, and it would seem not unfair in matching up equities to leave them where they have put themselves. Of course, however, it is understood that we are dealing with a suit at law, and not with an equitable action, and, as the majority opinion itself says, "in suits at law the statute of limitations alone controls as to whether a claim is stale or not." There is to be found, here and there, language in decisions and by text authors which would imply that the judgment of the writers is opposed to the conclusion we have reached and which is hereinbefore announIced. But we think such is not the trend of judicial opinion, and we cite in support of this statement additional authorities: Ange! OL Lim., c. 7; Wood on Lim. § 6; Murray v. East India Co., 5 B. & A. 204; Andrews v. Hartford R. R. Co., 34 Conn. 57; Hobart v. Turnpike Co., 15 Conn. 145; In re Bullard, 116 Cal. 355, 48 Pac. 219; Marsteller v. Marsteller, 93 Pa. 350; Riner v. Riner, 166 Pa. 617, 31 Atl. 347, 45 Am. St. Rep. 693; Parks v. Norris, 101 Mich. 71, 59 N. W. 428; Baird v. Reynolds, 99 N. C. 469, 6 S. E. 377; McCollough v. Speed, 3 McCord (S. C.) 455; Benjamin v. De Groot, 1 Denio (N. Y.) 151; Sorrels v. Trantham, 48 Ark. 386, 3 S. W. 198, 4 S. W. 281. Our conclusion is reached only because we are of opinion that the court is without authority to supplement the statute, and not because we think the statute wise in this respect. Indeed, we are inclined to agree with the court in Riner v. Riner, supra, that the present condition of the statute leaves a way open by which estates may be imposed upon, and that an amendment providing that, in a case like the present, the statute shall commence to run from the death of the decedent, or within a fixed time thereafter, would be in the interest of justice. is for the General Assembly, and not for the courts. But this The judgment will be reversed, and the cause remanded, with direction to overrule the demurrer to the petition and for further proceedings according to law. Reversed. PRICE, CREW, SUMMERS, and DAVIS, JJ., concur. (192 Mass. 106) BLODGETT et al. v. WORCESTER CONSOL. ST. RY. CO. (Supreme Judicial Court of Massachusetts. Worcester. May 17, 1906.) 1. STREET RAILROADS-RIGHTS IN STREETS REPAIR-LIABILITY-ESTOPPEL. That a street railway company complied with an order requiring it to lay and maintain paving within certain streets according to certain specifications did not estop it to thereafter contest the legality of the order. 2. SAME-ORDER-CONSTRUCTION. An order required a street railway company to lay and maintain paving in certain streets and to assume the expense of paving where the streets were unpaved, either for the full width of two streets and between the track, or between the tracks and for a limited distance outside the rails as to the remaining streets, and also to repave with the same material the streets already paved, the surface of which would have to be removed in the construction of the road. Held, that the general provision requiring the company to lay and maintain paving was not limited to paving only, and did not exclude the cost of subsequent maintenance. 3. SAME STATUTES-CONSTRUCTION. Pub. St. c. 113, § 7, relating to street railway locations authorized the board of aldermen and selectmen of towns to grant original locations to street railway companies subject to such "restrictions" as they deemed the public interest required. Held, that the word "restric tions," as so used, was a legal equivalent of "conditions," and therefore authorized the board to impose limitations on the full and unqualified enjoyment of the right to use the streets so granted. 4. SAME STATUTES-OBLIGATION TO PAVE AND MAINTAIN-POWER OF ALDERMEN. Pub. St. c. 113, § 7, provides that the board of aldermen of a city or the selectmen of a town may grant an order for the location of a street railway "under such restrictions as they deem the interests of the public may require," and section 32 provides that every street railway shall keep in repair the paving, upper planking, or other surface material of the portions of the streets occupied by its tracks and in addition a space 18 inches on each side of the portion so occupied, etc. Held, that section 7 should be treated as supplementary to section 32 and as conferring jurisdiction on the board of aldermen to impose a condition on the grant of a street railway location that the railway company shall pave and maintain the street to an extent greater than that prescribed in section 32. 5. SAME STATUTES-REPEAL-EFFECT. Pub. St. 1898, p. 748, c. 578,, § 26, repealing chapter 113, § 7, with reference to the granting of street railway locations by cities, declared (section 11, p. 742) that street railway companies shall remain subject to all legal obligations imposed in their original grants, and reference was again made in section 13 (page 743), which ratified and confirmed all previous locations which were given validity as if granted under the repealing act. Held, that the repeal of section 7 did not terminate the obligation of a company to pave and maintain streets imposed by a location grant previously made under the repealed section. Case Reserved from Supreme Judicial Court, Worcester County; Jas. M. Barker, Judge. Bill by Walter H. Blodgett and others, mayor and aldermen of Worcester, to compel the Worcester Consolidated Street Railway Company to keep in repair certain surface material in streets in such city. Case reserved for full court. Judgment for plaintiffs. Arthur P. Rugg, for petitioners. Warren & Garfield and Clement R. Lamson, for respondent. BRALEY, J. The demurrer admits the substantial allegations of the bill, by which without rehearsing its entire statutory title the respondent is described as a corporation duly organized to operate, and actually operating a system of street railways a part of which is located within the municipal limits of the city of Worcester. By purchase it has lawfully succeeded to all the rights and franchises formerly granted to the Worcester, Leicester & Spencer Street Railway Company, one of its predecessors in title. Sp. Laws Mass. 1893, p. 976, c. 338; St. 1897, p. 241, c. 269. At the date of transfer the tracks of this railway were laid, and the road operated in the pubilc ways described in the bill under an original location regularly granted by the board of aldermen subject to certain restrictions, which among other provisions not involved in the present controversy, required the company to lay and maintain paving within these streets accord |