that act. First came the revision which resulted in the Revised Statutes, and since then we have had the further revision now known as the General Code.

The act above referred to now appears in the General Code beginning with Section 10848 and ending with 10860. While that act has been changed in some minor particulars by revisions and amendments, yet the purpose and object of the act remain the same as in the original enactment.

This section should be construed in connection with the act of which it forms a part, and be limited to its original intention, unless by the revision, or the amendments to it, it reasonably appears that the legislature intended to give it a wider application. It does not appear from any change in the form of the act, or of this section, that the legislature intended to extend the right to appeal under this section so as to include any orders or judgments of the probate court not embraced in the original act.

After the revision embodied in the Revised Statutes, this section became Section 6203, and the supreme court, in Ebersole v. Schiller, Admr., 50 Ohio St., 701, construed it as follows:

"Section 6203, Revised Statutes, must be construed in connection with the act of April 17, 1857 (S. & C., 619), of which act it formed a part before the revision of the statutes; and, when so construed, it gives no right of appeal to the court of common pleas, from an order of the probate court refusing to remove an administrator.'

The question of the effect upon a statute which has undergone revision was before the supreme

court in the case of State, ex rel. Clough & Co., v. Commissioners of Shelby County, 36 Ohio St., 326, the court holding that unless the language of the new act plainly requires a change of construction to conform to the manifest intention of the legislature, the same construction will prevail as before revision.

This rule was not modified by the supreme court in the case of Collins, Exr., v. Millen et al., 57 Ohio St., 289. That case only holds that where, in the general revision of the statutes, a clause is added to a section thereof, the plain and ordinary effect of which is to qualify the former operations of the section, such effect should not be denied on the ground that it was added in the course of a general revision of the statutes. This in no way, however, modifies the former rule that unless such a clause appears, the original construction should be placed upon the section.

Our attention has been called to the case of Union Savings Bank & Trust Co., Exr. v. Western Union Telegraph Co., 79 Ohio St., 89, in which it is claimed that Davis, judge, in the opinion holds that the right to appeal to the common pleas court does exist from an order appointing an administrator. The judge, at page 100 of that case, uses the following language:

"The defendant, if it had such an interest in the estate as would give it the legal standing to do so, might have attacked the appointment in the probate court, or by appeal or error."

In order to determine the effect that should be given to this remark found in the opinion we must

The

look to the question then before the court. court had before it the question of whether or not the appointment of an administrator by the probate court, where it was claimed that the administrator appointed had no legal right to act as such administrator, could be attacked in a collateral proceeding. After holding that because the probate court had, jurisdiction over the appointment of an administrator of an estate, and that the appointment regularly made by the probate court could not be collaterally attacked, the court used the language above quoted.

We do not think the remarks found in the opinion are determinative of the question. The supreme court did not have the question of the right of appeal before it at that time, and the remark was wholly obiter, and was made, no doubt, by the learned jurist without having fully considered at that time the statutory provisions giving a right of an appeal from the judgments and orders of the probate court to the common pleas court.

The only other provision of the statutes, authorizing an appeal from the probate court to the common pleas court, is Section 11206, General Code. This section fails to provide for an appeal from an order of the probate court appointing an administrator of an estate.

We think that the common pleas court was in error in overruling the motion to the jurisdiction of that court. The judgment of the common pleas court is reversed.

Judgment reversed.

METCALFE, P. J., and FARR, J., concur.

App.]

Newman Club v. Higgy.

THE NEWMAN CLUB OF COLUMBUS V. HIGGY ET AL.

Landlord and tenant - Leases Breach of covenants - Subletting by lessee and sublessee - Keeping premises in repair-Forfeiture denied, when.

1. The original lessee being now in possession and tendering payment of rent in full, a lease of a residence property for a term of ten years will not be forfeited for breach of covenants for the payment of monthly rentals and not to sublet without lessor's consent, where, at the end of the third year the premises, with the consent of the lessor, are sublet for one year by written lease containing substantially the same terms as the original lease, the lessor being made agent to collect the rents from the sublessee, the sublessee later reletting the premises without the knowledge or consent of either lessor or lessee, if the lessor upon learning of the subletting by the sublessee accepts rents from the tenant then in possession.

2. Such lease will not be forfeited for a technical breach of covenant to keep in repair where the breach complained of was damage to hardwood floors and wall decorations, the time when the repairs were to be made and to what extent giving rise to a difference of opinion and being largely a matter of discretion, it not appearing that the failure to make repairs had caused serious or permanent damage to the premises and that by proper repair of the floors and the payment of rents due the lessor will be fully compensated and made whole.

(Decided April 7, 1920.)

APPEAL: Court of Appeals for of Appeals for Franklin county.

Mr. N. J. Weisend; Mr. C. A. Eberly and Mr. Francis J. Eberly, for plaintiff.

Mr. H. C. Sherman and Mr. C. H. Duncan, for defendants.

HAMILTON, J. Plaintiff brought suit for the purpose of securing relief from the declared forfeiture of a lease, executed to it by the defendant,

Newman Club v. Higgy.

[13 Ohio

Magdalen L. Higgy, for certain real estate in Columbus, Ohio. The premises had been formerly a large private residence and were leased by the plaintiff as its club home. The lease was for ten years, commencing September 5, 1915, and provided for the payment of rent in monthly installments in advance. The club entered into possession under the lease and continued in possession until September 5, 1918, having paid all installments of rent to that time.

It appears from the evidence that in September, 1918, nearly all of the club members had gone into the military service, and could not use the premises for the purpose for which they had been leased. Thereupon, with the consent of the lessor, Magdalen L. Higgy, they sublet the premises to the Delta Zeta sorority, by written lease for one year, under practically practically the same provisions and covenants as the lease to plaintiff, with the further provision that the lessor, Mrs. Higgy, defendant herein, was made the agent to receive the rent from the sorority, sublessee. It further appears that the sorority, on or about June 5, 1919, sublet the premises to Dr. S. Earl Taylor, the manager of the Methodist Centenary, which was being held at that time in Columbus, for the period of the centenary. This subletting to Dr. Taylor was without the consent of the Newman Club or Mrs. Higgy. Thereupon, the defendant declared a forfeiture of the lease made to the plaintiff club, and, on July 1, 1919, notified the president of the club, in writing, by mail, to the effect that she had terminated the lease to the club for a breach of the covenants of the lease to pay rent, not to sublet without consent,