Sandusky County.

above Horseshoe Island or to waters below it, still, as I have suggested, as my own view, the defendant had a right, if he was entitled to a permit at all, to fish anywhere in waters connected with the lake as described by the statute, and that Mud Creek, so-called, was a water so connected with the lake.

KINKADE, J., concurring:

He has a broad right, under the statute, to fish in the places designated in the statute; and these places embrace this place, and his right is supplemented by the permit. I merely don't want to say that I thought the commission that issued the permit was endeavoring to give him a permit at the point where he was fishing.

PARKER, J., concurring:

I am not quite certain of this, but I think that in all instances where they undertake to define the waters where the fishing may be done, they begin at the lower end or outlet near the lake, and say how far up you may go; and so, I think in this case they undertook to begin toward Lake Erie and say he might go up to Horseshoe Island, but not above it. I think that is the intention of the permit. We think that limitation may be disregarded; they had no right to circumscribe his permit.

Mersfelder v. Cartridge Co.

BANKRUPTCY-PAYMENTS.

[Hamilton (1st) Circuit Court, April 9, 1910.]

Giffen, Smith and Swing, JJ.

W. L. MERSFELDER, TR. V. PETERS CARTRIDGE CO.

PAYMENTS BY DEBTOR TO BANKRUPT AFTER FILING OF PETITION, ARE
VALID.

Bona fide payments made by a debtor to a bankrupt after petition
in bankruptcy filed but before adjudication thereon, payments
made for services rendered after the filing the petition, and pay-
ments made subsequent to the adjudication if based upon an un-
completed contract for personal services involving the exercise
of skill upon which reliance was had, are not recoverable by
the trustee in bankruptcy from the debtors by whom such pay-
ments were made.

ERROR to Hamilton common pleas court.

Kelley & Hauck, for plaintiff in error.

Morse, Tuttle & Harper, for defendant in error.

GIFFEN, P. J.

The first payment made by defendant in error to Anton Mill, a bankrupt, and which the trustee in bankruptcy seeks to recover, was made the day after the petition in bankruptcy was filed, and long before adjudication. The payment having been made in good faith, the trustee in bankruptcy under the law of 1898 cannot recover it from the defendant in error, the debtor.

The second payment, made subsequent to adjudication, was for services rendered after the petition in bankruptcy was filed, and hence not the proceeds of property transferable or seizable at the time of filing, and did not vest in the trustee.

The third payment, although made after adjudication, was based upon an uncompleted contract for personal service, involving the exercise of skill, upon which reliance was had. Such contract did not pass to the trustee. 1 Remington, Bankruptcy Secs. 994, 1132 and 1134.

The judgment will be affirmed.
Smith and Swing, JJ., concur.

Hamilton County.

CHATTEL MORTGAGES.

[Hamilton (1st) Circuit Court, January 15, 1910.]

Giffen, Smith and Swing, JJ.

STEPHEN J. BURKE V. Ļ. C. LINKMYER.

INDEFINITE DESCRIPTION IN CHATTEL MORTGAGE INVALIDATES IT.

A chattel mortgage covering "one registered Jersey bull" is void for uncertainty, where it appears that at the time the instrument was executed the mortgagor was the owner of three registered Jersey bulls.

ERROR to Hamilton common pleas court.

Charles W. Hoffman, for plaintiff in error.

J. C. Smith, for defendant in error.

PER CURIAM.

The judgment in this case should be reversed and judgment rendered for the plaintiff in error, for the reason that the property mortgaged to wit, "one registered Jersey bull," is too indefinite, the mortgagor at the time having three registered Jersey bulls.

The mortgage itself should have contained some words of description which would have enabled one to have ascertained which of the three Jersey registered bulls was intended to be mortgaged, there being on the farm of the mortgagor three registered Jersey bulls, each one answering the description contained in the mortgage. No one is described in particular, and the description is void for uncertainty. Stonebraker v. Ford, 81 Mo. 532; Kelly v. Reid, 57 Miss. 89; Fordyce v. Neal, 40 Mich. 705; Parker v. Chase, 62 Vt. 206 [20 Atl. Rep. 198; 22 Am. St. Rep. 99]; Jones, Chat. Mort. Sec. 56a; Cobby, Chat. Mort. Secs. 15, 19.

Railway v. Francis.

DEATH-RAILROADS.

[Hamilton (1st) Circuit Court, April 23, 1910.]

Giffen, Smith and Swing, JJ.

*PITTSBURGH, C. C. & ST. L. RY. v. GUSSIE FRANCIS, Admrx.

1. TESTIMONY BY WIFE THAT SHE IS ADMINISTRATRIX NOT PROOF OF HER CAPACITY TO SUE.

Testimony by wife that she is the administratrix of her husband is not proof that she was duly qualified and cting as such at the filing of the petition in an action for his death by wrongful act; but if there were no evidence of her legal capacity to sue, the defendant knowing or having good reason to believe that she had that capacity, judgment will not be reversed on that ground only.

FOR EM

2. PROVISIONS OF ACT QUALIFYING LIABILITY OF RAILWAYS PLOYES' INJURIES APPLIES TO ACTION FOR WRONGFUL DEATH. In an action for damages, brought under Gen. Code 10770 for the wrongful death of a locomotive engineer, alleged to have been due to a defective engine and a defective track upon which to operate it, it is proper to apply the provision of Gen. Code 9017, paragraph 2, qualifying the liability of railway companies for injuries to their employes.

ERROR to common pleas court.

Maxwell & Ramsey, for plaintiff in error.

Sherman T. McPherson and Wm. M. Coffin, for defendant in error.

A judgment for $5,000 was recovered below on account of the wrongful death of a locomotive engineer.

GIFFEN, P. J.

The testimony of the plaintiff that she is the administra trix of her husband, is not proof that she was duly qualified and acting as such administratrix at the time the petition was filed; but if there was no evidence at all of her legal capacity to sue, we would hesitate before reversing the judgment on that ground only, when the defendant knew, or had good reason *Affirmed, no op., Pittsburgh, C. C. & St. L. Ry. v. Francis, 83 0.

S. 520.

Hamilton County.

to believe, that she had such capacity. Memphis & C. P. Co. v. Fogarty, 6 Circ. Dec. 375 (9 R. 418).

It appears from the evidence that the defendant company was negligent in furnishing the deceased a defective locomotive engine, and a defective track upon which to operate it, and that by reason thereof he lost his life.

The court did not err in charging the jury in substance that the provisions of Gen. Code 9017, paragraph 2, “To qualify the liability of railroad companies for injuries to their employes," passed February 28, 1908 (99 O. L. 25), applied.

Whatever doubt may exist as to the application of Section 1 of the act to a cause of action under Gen. Code 10770, there can be no doubt that the clear and broad terms of paragraph 2 of the act apply to such a cause of action.

We find no prejudicial error in the record and judgment will be affirmed.

Swing and Smith, JJ., concur.

CARRIERS.

[Cuyahoga (8th) Circuit Court, November 28, 1910.]

Henry, Marvin and Winch, JJ.

COHN-GOODMAN Co. v. WELLS FARGO EXPRESS CO.

LIMITATION AS TO VALUE IN EXPRESS COMPANY RECEIPT IS VALID. When a shipper accepts a receipt from an express company for goods delivered to the carrier which contains a condition limiting the liability of the company to $50 unless another value is stated and fails to fix any value to the goods, he is thereby precluded from recovering more than $50 for the loss of the goods, where the charges for carrying are determined by the value of the goods, and the Interstate Commerce act does not change this rule.,

[Syllabus approved by the court.]

ERROR to common pleas court.

F. Desberg, for plaintiff in error.

R. G. Curren and H. A. Couse, for defendant in error.