Butt et al. v. Green.

be benefited. It is true the law provides that the debtor may select the property to be exempted, at any time before the sale; but this is a mere privilege to the debtor, the exercise or non-exercise of which would not necessarily affect the substantial benefit conferred, where he has actually obtained the full statutory exemption without selection. Like the right itself, this privilege of selection may be either expressly or impliedly waived. We think it was impliedly waived, by the failure of the debtor to attend, as he should have done, at the time and place fixed by him and the constable for setting off and appraising his exemptions.

When once waived, it could not afterward, but before the sale, be revived and asserted.

If there has been no waiver, the debtor's right to demand and select his exemption would, of course, have continued up to the time of the sale.

We think there was error in sustaining the demurrer to the answer.

Motion granted. Judgment of the superior court reversed, and cause remanded.

VOL. XXIX-43

Judgment accordingly.

INDEX.

ABATEMENT. Black v. Hill, 88.

ABUTTING PROPERTY. See STREETS, 8, 9, 10.
ACCEPTOR. See PROMISSORY NOTES, 3, 4.

ACKNOWLEDGMENT OF DEED. See DEED, 1, 2, 3.

ACTION-

1. Where no trust is involved, and no advice or guidance to an executor
or other trustee is required, parties claiming under or against a will
can not maintain an action for the mere purpose of obtaining the court's
opinion as to the meaning or legal effect of the will. Corry v. Flem-
ing, 147.

2. A civil action under the seventh section, as amended April 18, 1870
(66 Ohio L. 101), of the act entitled "an act to provide against the evils
resulting from the sale of intoxicating liquors in the State of Ohio,"
passed May 1, 1854, is authorized only where the sale or giving away is
unlawful. Baker v. Beckwith, 314.

3. Where a solvent assignee of the property of an insolvent wrongfully
paid to a creditor of the insolvent, more than his proper proportion of
the assets, and the amount of the excess so paid was subsequently re-
covered from the sureties of the assignee by his successor in office:
Held, That the sureties could not, by subrogation or otherwise, main-
tain an action to recover the amount of such excess from the creditor.
Leet v. National Bank of Ironton, 417.

4. A judgment creditor can not maintain an action against the purchaser
of real estate at sheriff's sale, to recover damages for the breach of the
contract of sale. Galpin v. Lamb, 529.

5. Where it is sought to charge such purchaser with the loss resulting
from a resale caused by his refusal to pay the price at which the prop-
erty was struck off to him at the first sale, the action, if maintainable,
should be brought by the sheriff. Ib. 529.

6. The rule that an officer is justified by his process, not void upon its
face, is one of protection only; and, although the officer may execute
such process, yet if it is in fact void for want of jurisdiction in the court
or officer issuing it, he may refuse to execute it, and no action will lie
against him for such refusal. Newburg v. Munshower, 617.

7. Where one of several defendants, against whom a judgment had been
rendered, filed a petition in error against the adverse party, without
making his co-defendants parties thereto, and judgment of affirmance
was rendered by the reviewing court: Held, That an action might be
sustained upon the supersedeas bond by the defendant in error, notwith-
standing such want of parties in the proceeding in error, and notwith-
standing the fact that a second petition in error, to reverse the same
judgment, was pending at the time of commencing the action on the
bond. Bulkley v. Stephens, 620.

See ERROR, 1; MANDAMUS, 1; SURETIES, 1: PROMISSORY NOTES, 10, 11;
NEGLIGENCE, 1, 2, 3.

(675)

Administrators-Appeal.

ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS.

ADMISSIONS. See EVIDENCE, 14, 15.

ADVERSE POSSESSION. See LIMITATIONS, STATUTE OF, 4; PLEAD-
ING, 11.

ADVERTISEMENT. See PUBLICATION OF NOTICE.
ADULTERY-

Under the statute against adultery (S. & C. sec. 24), in order to render a
married man guilty of deserting his wife, and living and cohabiting with
another woman in a state of adultery, it is not necessary that the wo-
man with whom he lives and cohabits should be a married woman.
Holdren v. The State, 651.

AFFIDAVIT-

In an affidavit for an order of attachment, under section 92 of the code,
made by the plaintiff's attorney, it is not necessary to show why the af
fidavit was not made by the party himself, or that the facts stated in
the affidavit were within the personal knowledge of the affiant.

et al. v. Stanley, 423.

See ATTACHMENT, 11.

AGENT. See PRINCIPAL AND AGENT.

AGREEMENT. See CONTRACT; PROMISSORY NOTES, 6.

AIDER AND ABETTOR. See INDICTMENT, 2.

AMENDMENT. See Rush v. Rush, 440.

ANSWER. See PLEADING.

APPEAL-

White

1. The act of March 30, 1875 (72 Ohio L. 161), which takes away the
right to appeal from judgments of a justice of the peace where the sum
is less than one hundred dollars, does not apply to or affect cases where
the judgment had already been rendered, and the ten days allowed by
law for giving the appeal bond had not expired at the time the act was
passed and took effect, and appeals in such cases might be perfected
after the date of the act. Bode v. Welch, 19.

2. Under section 113 of the justice's code (S. & S. 419), which makes it
the duty of the appellant to file the transcript with the clerk of the court
of common pleas on or before the thirtieth day from the rendition of
the judgment appealed from;" if said thirtieth day falls on Sunday,
the transcript can not be filed on the next succeeding day. The pro-
visions of section 597 of the code of civil procedure, not being appli-
cable in such cases, but only applicable to cases provided for in the
code of civil procedure itself. Mc Lees v. Morrison, 155.

3. Executors or administrators, whether appointed in this state or else-
where, who have not given bond in this state, with sureties, agreeable to
law, and who were original parties to the action, are not authorized to
prosecute an appeal from the court of common pleas to the district
court, without giving an appeal bond or undertaking. Dennison &
Neil v. Talmage, 433.

4. Where the law requires the appellant to give such appeal bond or un-
dertaking, the court of common pleas, from whose judgment the ap-
peal is taken, has no power, by its order or otherwise, to dispense with
the execution of the bond or undertaking, or to relieve the appellant
from the obligation to give it, the court's power in that respect being
limited to fixing the amount of the bond, and designating the party to
whom it shall be made payable. Ib. 433.

5. Where the appellant, in a case in which such appeal bond or undertak-
ing is required by law, neglects to give the same within the time lim-

APPEAL Continued.

Appeal Bond-Assault.

ited for that purpose, the fact that the court below made an order to the
effect that no bond was required does not authorize the appellant to
perfect his appeal by afterward giving such bond or undertaking in the
district court. Ib. 433.

6. Under the justice's act of March 14, 1853, as amended March 30, 1875,
an appeal was allowable from the judgment of a justice of the peace
rendered in an action tried by a jury wherein the amount claimed in
the bill of particulars exceeded one hundred dollars, without regard to
the amount of the judgment. Vogel v. Haffy, 439.

7. An action under the code for partition in which equitable relief is to
be administered between the parties in order to effect a partition of the
estate, is appealable. Rush v. Rush, 440.

8. Where a suit which is appealable, is disposed of in the court of com-
mon pleas, on a demurrer to the petition, and an appeal taken by the
plaintiff to the district court, the appeal can not be dismissed on the
ground that the petition does not show a cause of action. The appel-
lant has the right to have the judgment of the appellate court on the
demurrer to his petition; and, if the judgment is against him to ask
leave to amend. Ib. 440.

9. Where it appears from the journal entries of the court, in such suit,
that the demurrer to the petition was sustained, and the "petition dis-
missed," the presumption is that the dismissal was by the court, and
not the voluntary act of the plaintiff. Ib. 440.

10. The judgment of dismissal in such case is a final judgment from which
an appeal may be taken. Ib. 440.

1. A non-resident defendant against whom proceedings in attachment are
prosecuted, by demurring to the petition, brings himself as fully under
the jurisdiction of the court as if he had been served with summons in
the action. Myers v. Smith, 120.

2. Where a petition had been filed, and the defendant, thereupon, filed a
motion to strike from the files all the papers filed in the action for ir-
regularities and defects: Held, That this was an entering of his appear-
ance in the action by the defendant. Maholm v. Marshall, 611.
APPLICATION FOR DISCHARGE OF PRISONER-
Where an application is made for a discharge, under section 162 of the
criminal code (66 Ohio L. 311), at any term of the court, on the ground
that the defendant, who had given bail for his appearance, was not
brought to trial before the end of the third term after the indictment
was found, such application should be refused, if, at such term, the state
is ready for trial, but the cause can not be tried for want of time at such
term. Erwin v. The State, 186.

APPRAISEMENT AND APPRAISERS. See PARTNERSHIP, 3, 6, 7; Evi-
DENCE, 16; SHERIFF, 6.

APPRENTICES AND SERVANTS. See MINORS, 2.

APPROPRIATION OF PRIVATE PROPERTY TO PUBLIC USE.
See STREETS, 1, 6.

APPURTENANCES. See CONVEYANCE, 8.

ARREST. See RECOGNIZANCE, 1.