Black v. Hill et al.

tives of a plaintiff shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made.

The chapter of the code in which this section is found relates to the revivor of actions.

In Carter v. Jennings (24 Ohio St. 182) it was held that the mode provided in this chapter for the revivor of actions was not exclusive, but that the court has power, under section 39 of the code, in the exercise of a sound discretion, to allow the action to be prosecuted by or against the representatives or successor in interest of a deceased party.

At common law, if the plaintiff in error died before errors assigned, the writ abated; but if he died after errors assigned, the writ did not abate. A writ of error in no case abated by the death of the defendant in error, whether it happened before or after errors assigned. 2 Tidd's Prac. 1163; Spark v. Vangundy, 3 Ohio, 307.

Under the code the assignments in error are made at the commencement of the proceedings. The proceedings are to be commenced by petition in error, which is required to set forth the errors complained of.

A proceeding in error is not properly an action within the meaning of the code; and there is no express provision for reviving or continuing such proceedings in favor of or against the successor in interest of a party, or the representatives of a deceased party.

But, in our opinion, the provisions of the code on the subject, in regard to original actions, may also be applied to proceedings in error. Hence the court is authorized, under section 39, to allow the representatives of a deceased party to become parties, and the proceedings in error to be carried on in their name.

The application under this section is addressed to the sound discretion of the court; but we find nothing in the nature or circumstances of the case requiring us to refuse leave to the representatives of the original plaintiff in error to become parties, and to continue the present proceeding, instead of being required to commence anew.

Sewell v. Board of Education, etc.

Our attention has been called to an act passed April 6, 1876 (73 Ohio L. 110).

It is only necessary to say we do not regard the present case as affected by that act.

In so far as the act relates to the revivor of proceedings in error, it gives the right to any party to the action, whose interest may be prejudiced by reason of the death of any party, within six months from the passage of the act, to cause the proceeding to be revived against the heirs and personal representatives of the deceased party.

The application, in the present case, is made by the heirs of the deceased party, to be allowed to become parties to the proceeding, and to prosecute it to final judgment.

Motion overruled.

JOHN M. SEWELL v. BOARD OF EDUCATION OF DEFIANCE UNION SCHOOL AND LEM. T. CLARK.

1. Boards of education are authorized by law to adopt and enforce necessary rules and regulations for the government of the schools under their management and control.

2. Where instruction in rhetoric was given in any grade or department of such schools, and one of the rules adopted by the board for the government of the pupils therein provided that if any pupil should fail to be prepared with a rhetorical exercise, at the time appointed therefor, he or she should, unless excused on account of sickness or other reasonable cause, be immediately suspended from such department: Held, that such rule was reasonable.

3. Where the teacher of such department, with the consent of the board, for a failure to comply with the rule, or to offer any excuse therefor, suspended a pupil, until he should comply with the rule, or offer a reasonable excuse for his non-compliance, neither the board of education nor the teacher is liable in damages therefor.

ERROR. Reserved in the District Court of Defiance county.

This action was commenced in the court of common

Sewell v. Board of Education, etc.

pleas of the county named, on the twenty-third day of November, 1871, to recover damages of the defendants for wrongfully excluding the plaintiff's son, Andrew, aged thirteen years, from a school established in the town of Defiance, under the act known as the "Akron school law," and which school was under the management and control of the defendant, the board of education, and of Lem. T. Clark, as superintendent and principal teacher.

The defendants answered jointly, setting out specifically, in their third ground of defense, the powers and duties of the board of education, under the act named, and averring that, under the powers conferred by the act, the board of education adopted a rule for the government of the pupils in the grammar department of the schools of the town, which provided that if any pupil should fail to be prepared with a rhetorical exercise, at the time appointed therefor, he or she should be immediately suspended from such department, unless excused from complying therewith, on account of sickness or other reasonable cause; that Andrew Sewell, the son of the plaintiff, was a pupil in the grammar department, and was not, on the first day of November, 1871, the time appointed therefor, prepared with a rhetorical exercise, and refused to prepare such exercise or to offer any excuse therefor, whereupon the defendant, Lem. T. Clark, as superintendent and teacher of that department, with the consent and approval of the board, suspended him therefrom, until he should comply with the rule, or render a reasonable excuse to the board for his non-compliance; that the rule was reasonable, and deemed by the board necessary for the welfare of the grammar department; and that the action of the defendants in the premises was in their official capacity. The defendants, further answering, denied all and singular the allegations of wrongful and unlawful action or injury, as set out in the petition.

The plaintiff demurred to the answer, on the ground that it did not state facts sufficient to constitute a defense to the action of the plaintiff, which was overruled by the court,

Sewell v. Board of Education, etc.

and judgment rendered in favor of the defendant for costs, to which ruling and judgment the plaintiff excepted.

On a petition in error, filed by the plaintiff in the district court, to reverse the judgment of the court of common pleas, the cause was reserved to this court.

William Carter and Hill & Myers, for plaintiff in error.

Henry Newbegin, for defendant in error, claimed that the board was authorized to adopt and enforce the rule in question, and that neither the board nor the teacher were liable in damages therefor. Board of Education v. Minor, 23 Ohio St. 211; Stewart v. Southard, 17 Ohio, 402; Donahue v. Richards, 38 Maine, 378; Hodgkins v. Rockport, 105 Mass. 475; Downer v. Lent, 6 Cal. 94; Hines v. Lockport, 50 N. Y. 236; Mills v. Brooklyn, 32 N. Y. 489; Matter of Church Street, 49 Barb. 455; Jordon v. Hanson, 49 N. H. 199; Gregory v. Burke, 37 Conn. 365; 26 Wis. 393; 48 Mo. 253; Wilson v. Mayor, 1 Den. 599; Kendall v. Stokes, 3 How. (U. S.) 87.

REX, J. The act under which the common schools of the town of Defiance were organized, gives to the board of education of the town the entire control and management thereof; authorizes the board to make and enforce all necessary rules and regulations for the government of teachers and pupils therein, and to determine "the various studies and parts of study" in which instruction shall be given in the several departments thereof.

The act does not direct how, or in what manner, the rules and regulations which the board may adopt for the government of the schools under its care and management shall be enforced, but leaves the whole subject of the making of such rules and their enforcement to the judgment and sound discretion of the board. The rule in question, for the enforcement of which, in the manner stated, damages are claimed by the plaintiff in this action, was, in our opinion, reasonable.

Ohio ex rel. Atty.-Gen. v. Greenville Building, etc., Association.

The pupil having failed to comply with the rule, the teacher in excluding him from the school until he should comply with it or offer a reasonable excuse to the board for his non-compliance, acted under the authority of and with the consent of the board, and the action of the defendants in the premises having been, as they aver in their answer, in their judgment, for the best interests and welfare of the school, they are not liable in damages to the plaintiff therefor.

It follows, therefore, that the court of common pleas did not err in overruling the demurrer of the plaintiff to the answer of the defendants, and its judgment must be affirmed.

Judgment affirmed.

THE STATE OF OHIO EX REL. THE ATTORNEY-General v. THE GREENVILLE BUILDING AND SAVING ASSOCIATION.

1. A building and saving association, incorporated and organized under the act of May 5, 1868 (S. & S. 194), can not, by its action, authorize or permit a member to hold more than twenty shares of its stock in his own right.

2. Such corporation is not authorized to use its funds in making loans to members or depositors upon their promissory notes, at a rate greater than the legal rate of interest, in addition to the premium bid for the right of precedence, or in purchasing or discounting notes from such members or depositors at usurious rates of interest, or to use its funds in loaning the same to and in purchasing and discounting notes from persons other than its members or depositors upon any terms.

3. The only mode by which the premium on a loan can be fixed is by the bidding of the members or depositors for the right of precedence, and the board of directors is not authorized to fix a minimum premium and require the bids for such right of precedence to equal or exceed the premium thus fixed, in order to obtain a loan.

QUO WARRANTO.

The information is as follows:

John Little, Attorney-General of the State of Ohio, upon complaint to, and inquiry by him in that behalf made, now