of such person for an adequate price, and with- | rick title. On July 1, 1875, upon applica out notice of its being merely a trust estate, and there is evidence also given by the attorney of those claiming as cestuis que trustent that the latter had gotten rid of the title so as to keep it from their own creditors, the title of the purchaser cannot be assailed. Per Magruder, J., dissenting. Dissenting opinion. For majority opinion, see 26 N. E. Rep. 360. BAKER, J. I dissent from the views expressed in the opinion and from the judgment. MAGRUDER, J., (dissenting.) I do not concur in the conclusion reached by this opinion, nor in the reasoning by which that conclusion is supported. The chil- | petition did not allege that the sale was tion of the assignee, the United States district court entered an order for the sale of the Beecher interest, which was accordingly sold to Grant. The sale was confirnied on March 17, 1876. The assignee executed a deed to Grant on April 24, 1876, which deed was recorded on April 26, 1876. The sale made by the assignee under the orders of the bankrupt court, and the deed executed to carry it out, were valid. As has already been stated, there was no inadequacy in the price paid. The title of Beecher had become vested in the assignee. The United States court had jurisdiction of the subject-matter, and full power and authority to order the sale. Even if the dren and heirs of Charles Herrick have the better title, and were in possession of the property when the cross bill was filed. The deposition of Rhodes and the admissions to be made to raise money to pay debts, such objection cannot be urged in this collateral proceeding. The court, having jurisdiction of the insolvent by the institu in the answer to the cross bill establish ❘tion of the bankruptcy proceeding, could such possession. The claims of appellant | take such steps as it saw fit to wind up rest upon a purely speculative title, obtained by Silas B. Gassette from one Beaubien. By deed dated November 27, 1872, Gassette executed a quitclaim deed to Thaddeus B. Beecher of lot 3, being the north half of the Laframboise reservation, except 10 acres previously conveyed by him to one Kate Beaubien. Lot 3 con. tains 320 acres, so that 310 acres were conveyed to Beecher. The amount paid for the conveyance to Beecher was only about $300, or less than $1 peracre. The opinion finds this land to be worth about $200 per acre, or $62,000. That Gassette was willing to part with his interest for $300shows how little value he placed upon it. What William C. Grant purchased at the assignee's sale was merely the Beaubien- | The declaration of trust, in which Beecher the estate and dispose of the assets. The objection that Beecher held the title in trust for Sayles and Walker, and therefore that the interests of Sayles and Walker were not cut off by the decree in the burnt records proceeding, amounts to nothing. There is nothing in the record to show that Grant, as purchaser in the assignee's sale, had any notice whatever of the interest of Sayles and Walker; nor were there any circumstances to put him upon inquiry as to whether or not Beecher was a mere trustee. The idea of calling Beecher a trustee for Sayles and Walker would appear to have been an afterthought, to get rid of the title ac. quired by Grant at the assignee's sale. Gassette-Beecher title, which was manifestly not worth any more than he paid for it. Sublots 2 and 3 of lot 3 consisted | edged by Beecher until December 27, 1877, recites that he holds the property in trust for Sayles and Walker, was not acknowl of 20 acres only. They were conveyed to Beecher for less than $20. Sublot 3, consisting of 10 acres, and another lot, con -more than a year after Grant's purchase. Selden Fish was the attorney who filed and swore to the petition in the burnt sisting of 5 acres, with certain improve-records proceeding, and managed the case ments upon them, were conveyed to Charles Herrick in October, 1872, for $6,000. The burnt records petition was filed in the superior court by Beecher on December 21, 1872, and the decree confirming the | title in him was rendered on November 12, | 1873. Certain creditors filed a petition in bankruptcy against Beecher in the United States district court on October 18, 1873. He was declared a bankrupt on October 21, 1873. In November of same year Han- | of 310 acres. If this was true, then, in con from beginning to end. He paid the money to Gassette, and had the deed made by Gassette to Beecher. He acted as attorney in fact for Beecher under a power of attorney excuted by the latter, but not recorded. In one part of his testimony he says that the 20 acres in controversy was a part of his fee, and that he regarded himself as the owner of it, and not only so, but as the owner of the whole tract cock was appointed assignee, and became vested with the title of Beecher by con. veyance of the register. Herrick was a defendant in the burnt records proceeding, and was represented by Grant, but there is nothing in the record to show that Grant had anything to do with the prosecution of that proceeding. On the contrary, he seems to have resisted it. A default was in some way obtained against his client, and he tried to stay the proceeding by suggesting the bankruptcy of the petitioner. He was connected with the proceedings in the bankruptcy court for the sale of Beecher's interest, and had a right to obtain in that way the baseless claim, which rested as a cloud on the Her ducting the burnt records suit, he allowed Beecher to be held out as the owner. Indeed, he swears in the petition that Reecher was the owner. Fish also swears that he was the attorney of both Beecher and Sayles and Walker, and that he and Sayles and Walker put the title in Beecher because Sayles and Walker were in debt. If they put the title in Beecher to keep it away from their creditors, the trust was a fraudulent one, and a court of equity will give it no countenance. Beecher was a mere man of putty in the hands of Fish and Sayles and Walker. But, even if it be true that Beecher was the trustee of Sayles and Walker, he allowed his name to be used in commencing the burnt rec ords proceeding at their request, and in their interest. He so swears. Fish was the attorney of Sayles and Walker, and began the burnt records proceeding in Beecher's name for them, under their directions, and in their interest as well as his own. They were therefore the real parties in interest in that proceeding, and were bound by the decree entered in it. In Bennitt v. Mining Co., 119 Ill. 9, 7 N. E. Rep. 498, it was said: "Sometimes persons who are not parties to the record "9 * are bound by the judgment or decree. Persons on whose behalf and under whose direction the suit is prosecuted or defended in the name of some other person fall within this category. Men who cover up their fraudulent transactions in another person's name, and swear that such person is the real owner of land, and get the title established in him as owner, are estopped from denying such ownership when their conduct has induced third parties to invest their money in the purchase of said land and title. Grant took them at their word that Beecher was the owner, and bought Beecher's interest at the bankrupt sale, and then made conveyances to his client and the other owners. (Syllabus by the Court.) Error to circuit court, Monroe county. Action by Reed against Reed for breach of promise of marriage. A judgment for plaintiff, rendered in the court of common pleas, was reversed by the circuit court, and plaintiff brings error. Affirmed. Action for breach of promise of marriage was prosecuted by the plaintiff against the defendant in the court of common pleas. It was shown that the parties were first cousins; that the contract was entered into in Ohio, but to be performed in Pennsylvania; and that, at the instance of defendant, plaintiff went to Pittsburgh, Pa., where defendant agreed to meet her, to marry, but he failed to perform his agreement. A judgment was obtained by plaintiff, which was reversed by the circuit court. Hunter & Mallory, for plaintiff in error. John P. Spriggs, for defendant in error. PER CURIAM. We find no error in the record. Section 6384, Rev. St., provides that "male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage. Prior to the amendment of February 10, 1870, the section permitted marriage between persons otherwise qualified, "not nearer of kin than first cousins." Succeeding sections provide that any probate judge who shall issue a license, or officer who shall solemnize a marriage, contrary to the provisions of the act, shall be fined, etc. All which shows the spirit and purpose of the law; and this policy is not affected by the consideration that the statute punishing incest (section 7019) includes only persons nearer of kin than cousins; and, where a contract is attempted to be made between parties which contravenes the policy of the statute, courts will not aid in its enforcement, or in obtaining damages for its violation, but will leave the parties where it finds them. Nor can the agreement to solemnize the marriage in Pennsylvania help the case, as such performance between residents of Ohio would work a fraud on the law. Judgment affirmed. (49 Ohio St. 655) CROW v. JORDAN. (Supreme Court of Ohio. Dec. 6, 1892.) PROCEEDING IN BASTARDY-EVIDENCE-CHILD EXHIBITED TO THE JURY. On the trial of an action of bastardy at the January term, A. D. 1889, of the court of common pleas of Scioto county, Jordan, to maintain the issue on her part, offered herself as a witness, and gave testimony tending to prove that she was an unmarried woman, and had never been married; that she was delivered of a bastard child on the 19th day of July, 1888, in a township in Scioto county, where she resided; that Crow was the father of the child; and that the child was still living. Her counsel then asked her the following question, "Is that the child?"-alluding to an infant or small child, then held by the witness in her arms and upon her lap, and in view of the jury, during the time she had been giving her testimony before the court and jury. The defendant, by his counsel, objected to the question. The court overruled the objection, to which the defendant excepted, and thereupon the witness answered, "It is." The circuit court sustained the court of common pleas in overruling the objection. Held the circuit court did not err, and there was no error in permitting the child to be exhibited to the jury as evidence of alleged paternity, and in corroboration of the testimony of the prosecutrix. (Syllabus by the Court.) Error to circuit court, Scioto county. An action by Jordan against Crow for bastardy. The circuit court sustained the court of common pleas in overruling defendant's objections to the admission of testimony, and he brings error. Affirmed. T. C. Anderson, for plaintiff in error. Harper, Searl & Milner, for defendant in error. PER CURIAM. Judgment affirmed. (49 Ohio St. 656) STATE ex rel. GREGG v. TANZEY et al. (Supreme Court of Ohio. Dec. 20, 1892.) ELECTIONS-BOARD OF DEPUTY SUPERVISORS-DUTIES-MANDAMUS TO COMPEL PERFORMANCE. 1. The duties of the board of deputy supervisors of elections, in making the abstracts of the votes returned by the officers of the election precincts of the county, are purely ministerial, and are limited to compiling the votes shown by the tally sheets so returned, and setting down to each candidate the aggregate number of votes so appearing to have been cast for him, and to certifying and transmitting the abstracts so made to the proper officer. court of the second circuit, and that, aside from a question raised as to the right of the relator to institute the action, is the matter of controversy here. 2. The board is without authority to hear | election precincts for judge of the circuit evidence to contradict or explain the tally sheets, or act upon information not appearing on their face, or to open or count ballots returned by the precinct officers as uncounted ballots, concerning the legality of which doubt or difference of opinion existed in the minds of the judges of election. 3. An action in mandamus, to compel the board to make, certify, and transmit to the proper officers, as required by law, the several abstracts of votes shown by the tally sheets returned from the various election precincts of the county, may be instituted on the relation of any elector of the county. (Syllabus by the Court.) Application for a writ of mandamus to compel William C. Tanzey and others, as supervisors of elections, to transmit an abstract of votes as shown by the tally sheets. Writ granted. H. J. Booth, John Logan, and George K. Nash, for relator. John N. Van Deeman, F. A. Davis, and H. M. Daugherty, for defendants Hegler, Blessing, and McKillipp. C. A. Palmer, Hidy & Patton, De Witt C. Jones, and Mr. Johnson, for defendants Tanzey and Glaze. The defendants Tanzey and Glaze contend that, in making up the abstracts referred to, Frank Chance, who was the regularly nominated candidate of the Democratic party for the office of circuit judge, should, in addition to the votes castforhim on the Democratic ticket, be credited with 11 votes which, it is claimed, he received on the People's party ticket in the western precinct of Union township, and with certain other votes which, it is claimed, he received in some other election precincts of the county. They first claim that the tally sheets of these precincts, properly interpreted, show on their face that Chance received the number of votes claimed on the ticket mentioned. The tally sheets of the precincts in question are not substantially different. Taking that of the western precinct of Union township as an example, there is a division of the tally sheet set apart for the "People's party ticket," in the left-hand column of which is the name of the office to be filled, and in the column next on the right the name of the candidate for the office. Among the offices to be filled, as appears in the left PER CURIAM. The petition alleges that the relator is a citizen and elector of the county of Fayette, and of the second judicial circuit of the state of Ohio; and that the defendants William C. Tanzey, Isaac | hand column, is "Judge of Circuit Court, still to the right of that, opposite each name, except that of Chance, appears the following: Twelve vote 12 - while in the corresponding columns, opposite Chance's name, nothing appears; they are blank. Then below the name of Chance follow the names of the candidates for county offices, with the words and characters: Glaze, Allen Hegler, and Horace M. Blessing 2d Circuit," opposite which, in the next constitute the board of deputy state sucolumn to the right, is the name “Frank pervisors of elections for the county of Fay-Chance." To the right of each name on ette, and J. A. McKillipp is the clerk of the | the ticket is the word “Received." Then, board. It is further alleged that the defendants have failed and refused to make and complete the third abstract, provided for and required by section 2980, Rev. St., of the votes cast at the general election held in Fayette county on the 8th day of November, 1892, and have also failed and refuse to make and complete the abstract required by section 2994, Rev. St., showing the number of votes given in the several election precincts of the county for each person who received votes for the office of judge of the circuit court, and transmit the same to the board of deputy supervisors of elections of the county in the second judicial circuit having the largest population, the county of Fayette being in that circuit; and the prayer of the petition is for a writ of mandamus to compel the defendants to perform their duties in that behalf. An alternative writ having been issued, two of the defendants, Hegler and Blessing, answer that they are ready and willing, and have at all times been, to make and certify the abstracts in the manner sought by the petition, but the other two members of the board of deputy supervisors have prevented their completion and transmission, while they, in turn, answer that they have been, and still are, ready and willing to perform their duties in the matter complained of, not, however, in the manner asked by the petition; but they allege they have not been able to complete the abstracts because Hegler and Blessing insisted they should be made up as in the petition prayed for. Eleven votes 11 -in the columns opposite each name. There is printed at the head of the ticket, on the tally sheet, above the names of the candidates, the words "Straight Ballots." The columns to the right of this are blank. But immediately below the words "Straight Ballots,” on another line, are the words "Scratched Ballots," and in the columns opposite these words are the words and characters: Received twelve votes 12 The claim of the respondents Tanzey name was on the People's party ticket, The controversy between the members of the board relates to their duties with ❘ and Glaze is that, inasmuch as Chance's respect to abstracting the votes of certain and the other candidates on that ticket received the number of votes set opposite their names respectively, it is apparent the omission to credit him with a like number of votes is a mere clerical mistake. It is said that the purpose was to set down the 12 votes opposite the words "Straight Ballot," instead of opposite the words "Scratched Ballot;" and, there having been 12 straight tickets cast, each candidate must necessarily have received the same number of votes, and it is there. to them from some of the precinct officers, and other sources, that Chance's name was in fact on the ballots cast and counted for the People's party ticket, and a sealed envelope, containing certain ballots which were deposited and left uncounted because there was doubt and difference of opinion in the minds of the judges of election concerning their legality, having been returned with the tally sheet and poll book of the precinct, it was competent for the board of deputy supervisors, fore immaterial, it is urged, that the num- | in making up the abstracts required by ber of votes are not set down on the tally sheets in the columns opposite or under the name of Chance. This claim of the respondents assumes that two mistakes were made by the election officers of the law, to inquire into the truth of the information, and, if necessary, to open the envelope, and ascertain whether any mistake was made in the tally sheet; and they further claim such investigation precinct.-one in counting and tallying | would have shown that Chance's name all the straight ballots as scratched ballots, and the other in not tallying in the appropriate columns any of them for Chance. The presumption is that the precinct officers properly discharged their official duties, and that the tally sheet, as returned by them to the board of deputy supervisors, was in all respects correct. That board had no right to indulge any different presumption, or interpret the tally sheet contrary to what it plainly expressed. The law defining the duties of the precinct officers is clear and specific. Section 24 of the act of April 18, 1892, (89 Ohio Laws, 448,) provides that when the count begins the ballots shall be taken out of the ballot box "one at a time, by one of the judges, who shall read aloud distinctly, while the ticket remains in his hands, the name or names voted for thereon, except that a straight ticket may was on each of the People's party ballots voted in the precincts in controversy. It is clear the board had no such power. Their authority extends no further than to "make abstracts of the votes" returned by the precinct officers, in the manner provided by sections 2980, 2989, 2994, Rev. St., and certify and transmit them to the proper officer, as required by law. To make the abstracts is simply to summarize and compile the votes shown by the tally sheets returned from all the election precincts of the county, and set down to each candidate the aggregate vote shown by those tally sheets to have been received by him. The duties of the board of deputy supervisors in this respect are purely ministerial, and in their performance of them they cannot look beyond the returns made to them. The provision contained in section 24 of the act of April be announced as such, and be so counted, | 18, 1892, that, if there are left uncounted any ballots concerning the legality of which there is doubt or difference of opinfon in the minds of the judges of election, they shall not be destroyed, but sealed up, and returned with returns of the election, "for such judicial or other investigation as may be necessary,” was intended, we think, to preserve the ballots, so they may be used as evidence in the event of a contest or other investigation before a tribunal or body having jurisdiction to inquire into the regularity and validity of the election, or determine who was elected, and confers no authority upon the board of deputy supervisors, in making up the abstracts, to enter upon such an investigation. We find no ground, therefore, upon which to sustain the claim and then delivered to the second judge, who shall examine the same, and pass it to the third judge, and so on to the fourth, who shall preserve it; and the same method shall be observed in respect to each of the tickets taken out of the ballot box until the number taken out of the ballot box is equal to the number of names in the poll book. The clerks shall enter in separate columns, by fallies under or opposite the names of the persons voted for, as provided in the form of tally sheets, all votes thus read by the judges." The duty enjoined upon the clerks by this section is to set down in separate columns on the tally sheet, by tallies, under or opposite the name of each candidate, the votes received by him as read by the judges, whether they be read as straight | made by the respondents Tanzey and ballots or otherwise. There appears to be no provision of law for entering the words "Straight Ballots" or "Scratched Ballots" on the tally sheet, and none au Glaze, that 11 votes, or any number of votes, tallied under the head of the People's party ticket in the western precinct of Union township, should be added to thorizing the votes to be tallied opposite | the votes received by Chance on the Dem or under those words, and counting votes thus tallied for any candidate. But if there were, on the tally sheet of the preeinet in question, no votes were tallied to the People's party ticket under or opposite the words "Straight Ballots," but all are tallied opposite the words "Scratched Ballots;" so that it does not appear from the tally sheet in any way that Chance received any votes on that ticket. ocratic ticket, or in any way carried into the abstract in his behalf, since it does not appearfrom the tally sheet of the precinct referred to, that he received any votes on that ticket. And the same is true as to the alleged votes which those respondents claim should be entered in the abstracts to the credit of Chance from the eastern precinct of Union township, and from the Green, Wayne, and Jasper township preAnother claim made by Tanzey and | cincts, they being the other precincts in Glaze is that, information having come dispute. The question is made, by demurrer to | the reply, whether the relator is entitled to institute the action, he having no other | interest than that of an elector of the county and judicial circuit. Section 6744, Rev. St., provides that the writ of mandamus “may issue on the information of the party beneficially interested." It was held in State v. Brown, 38 Ohio St. 344, that an elector has such beneficial interest in an election as entitles him to institute "a proceeding in mandamus to compel the sheriff to give notice and make proclamation to the qualified voters of a county to elect a judge of the court of common pleas therein.” Such a proceeding would be futile if he could not also in like manner compel the performance of any other statutory duty necessary to the consummation of the election and declaration of its result. The beneficial in- | terest of the elector in the election does not cease, we think, when the machinery | for holding it is set in motion, nor until all lawful steps are taken to its completion. It was claimed in argument at the hearing that the relator, by the interest he manifested in the election, had disqualified himself from maintaining the action. We have examined the evidence taken on that subject, and are of opinion the claim is not well founded. Peremptory writ awarded. (49 Ohio St. 651) RILEY v. HITZLER. (Supreme Court of Ohio. Nov. 22, 1892.) EXEMPTIONS-PERSONAL EARNINGS-HEAD OF FAMILY. A debtor residing with his widowed mother and invalid brother, who are supported by him, is not thereby entitled, under either section 5430 or section 5483 of the Revised Statutes, as the head of a family, to hold exempt from execution or attachment his personal earnings for three months. (Syllabus by the Court.) Error to circuit court, Hamilton county. Proceedings in aid of execution by George Hitzler against Benjamin Riley. The circuit court affirmed a judgment of the court of common pleas affirming a judgment for plaintiff by a justice of the peace, and defendant brings error. Af. firmed. H. L. Cooper, for plaintiff in error. P. J. Jones, for defendant in error. PER CURIAM. George Hitzler, defendant attachment and garnishment in the cause, for the following alleged reasons, to wit: "That said defendant is the head of a family, and not the owner of a homestead, and that the property sought to be attached herein are the personal earnings of the said defendant within three months last prior to the beginning of this action, and that said earnings do not exceed the sum of one hundred and fifty dollars, and are necessary for the support of him. self and family." The motion was supported by affidavits, but there was no evidence that Riley was then the head or support of a family, except the fact that he then resided with a widowed mother and invalid brother, who were solely dependent on him for support, and who were supported by him. Hitzler filed no affidavits in rebuttal. The motion to discharge the attachment was overruled, exception was taken, and judgment was rendered for Hitzler. On error the common pleas court affirmed the judgment of the justice of the peace, and on error to the circuit court the judgment of the common pleas court was affirmed; and by this proceeding it is sought to reverse the judgment of the circuit court. Under the decision in Snook v. Snetzer, 25 Ohio St. 516, the earnings of the debtor for his personal services, for the time prescribed, would be exeinpted by section 5483 of the Revised Statutes, as well in attachment as under proceedings in aid of execution. But the question arises whether the plaintiff in error is the head of a family, as contemplated in that section or in section 5430 of the Revised Statutes, so as to be entitled to the benefit of its provisions. The question is one of statutory right and construction. The claim of the plaintiff in error, if sustainable, must be so by virtue of the statute, and not otherwise. Section 5430, among the exemptions granted to heads of families and widows, provides that "every person who has a family, and every widow, may hold the following property exempt from execution, attachment, or sale for any debt, to wit: (6) The personal earnings of the debtor, and the personal earnings of his or her minor child or children, for three months, when it is made to appear, by the affidavit of the debtor, or otherwise, that such earnings are necessary to the support of such debtor, or of his or her family; and such period of three months shall date from the time of issuing any attachment or other process, the ren * ** in error, filed his affidavit in attachment | dition of any judgment or the making of any order, under which the attempt may be made to subject such earnings to the payment of a debt." The words, "every person who has a family, and every widow," in connection with the words, "the personal earnings of the debtor and the personal earnings of his or her minor child or children, when it is made to appear that such earnings are necessary to the support of such debtor, or of his or her family," suggest and imply support maintenance by a parent. Theexemption from execution and attachment of the personal earnings of the debtor and of his or her minor child or children point to before a justice of the peace in and for Cincinnati township, Hamilton county, charging that Benjamin Riley, plaintiff in error, was then justly indebted to him for board and refreshments; that the property about to be attached was not exempt from execution; that Riley was not the head or support of a family; that he was a nonresident of Ohio; and that the affiant had good reasons to and did believe that the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company had in its possession moneys, etc., the property of Riley. Before any testimony was offered or judgment entered in the action, Riley filed a motion to dismiss the | the parental relation, and to one, as the v.32N.E.no.9-48 or |