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20%. Enoch D. Cracraft et al. v. Joseph Smith et al. Error to the District Court of Butler County.


A testator, afler directing that his debts and funeral expenses be paid, gave all the residue of his estate, both real and personal, to his wife during her life, she to have full possouston, management and control of the same, with the privilege of disposing of all or any of the personal property for her use, together with the proceeds of tbe real estate.

The estate consisted of lands, farming utensils, bouse. bold goods, live stock and money. The residuary clause is as follows: "The residue of my estate is to be distributed to the heirs on niy side of the house in such proportions as she may direct by will or otherwise."

No personal representative was appointed until after the death of the widow. She took pissession of the personal property, paid the debts and funeral expenses, and deposited the balance of the money in bank in her own name, and died within five months after her husband's death, without making her election as required by stat. ute to take under the will and without having disposed of any of the personal property or money, and without distributing any of said'estate by will or otherwise.

Neither the testator nor his wife left any children or their legal representatives. Each left brothers and sisters of the whole blood, and their legal representatives,

Held: 1. The right of a widow to elect to take the provision made for her in the will of her husband, is a right to be exercised by her in person. If she dies without having made her election, those wbo claim under her, can only claim so much of her husband's personal estate as she was entitled to under the law.

2. In order to bar a widow of her right to dower and to such share of the personal estate of her husband as if he had died intestate leaving children, her election must be made, either by matter of record in the proper court as required by statute,,or actually and in fact under such circumstances as woull create against her an estoppel of her right to claim under the law.

3. Where it does not appear that a widow has acted with a full knowledge of the condition of her husband's estate and of her rights under the will and under the law, ber acts in paying the debts of the husband out of bis money, receiving and holding the balance, and hav. ing possession and control of the real and personal estate for five months after her husband's death, do not constitute such an election, in fact, to take under the will, as estops her from claiıning, under the law, within the time allowed.

4. If the husband devise bis real estate to his wife for life, with remainder to his heirs, and the wife elects to take her dower, or fails to make hier election, the remainder vests in foe in the heirs, subject to the dower estate of the wife.

6. Where the residue of an estate is, by will, directed to be distributed among testator's heirs, in such portions as his wife may direct by will or otherwise, and she dies without having exercised the power conferred upon her, each of the heirs of the testator, or his legal representative, takes an equal share under the will.

In No 20% the judgments below are reversed.
In No. 2034 the judgment below is affirined.

pay for the coal mined in any year, the “surplus pay

were to apply on any future year's mining that miglit be in execss of said quantity. Held:

1. That the quantity of coal was to be ascertained and paid for in the wode prescribed by the lease.

2. That in an action to recover an annual payment for thirteen thousand tons, an averinent in the answer that the “surplus payments" made in pursuance of the lease were more than sufficient to pay for the unmined coal re. niaining on the premises, constitutes no defense.

Judginent of the district court reverned and that of the common plcas affirmed.

60. Henry Diehl v. Carl F. Frienter. Error to the Dis trict Court of Monrou County,


1. Where a probate judge allowed an injunction in a caune pending in the court of coinnou pleas, but an undertaking therefor was never given, a fine, with impris onment for its non-payment, imposed upon

the party enjoined, for an alleged contempt in disregarding such injunction, in not authorized by law; and where the person so imprisoned brings an action for such injury against the party causing the imprisonment, it is not necessary to allega malice and want of probable cause.

2. A motion that one juil.gment be set off against another is un appeal to the eq itable power of the court, to be granted or refused upon consideration of all the facts; and in granting such niotion, the claim of the attoneys for fees will be respected, wherever it appears to be right, in view of the facts, that this should be done.

Judgınent affirined.

13. Cincinnati, Sandusky and Cleveland Railroad Company v. Benjamin F. Lc. Error to the District Court of Erie County.

Okey, C. J.

Where a prosecuting attorney appears before a magistrate, at the request of a citizen, and prosecutes one charged with the commission of a felony, preparing the papers necessary for such purpose, tbere is no implied contract that such citizen will pay him for such services.

Judgment reversed and cause remanded for further proceedings.

263. The State ex rel. the Attorney General r. Portsmouth and Columbus Turnpike Company. Qno Warranto.


The acts of March 27th, 1875 (720. L. 85), and of Jupe 12th, 1879 (76 (). L. 153), amendatory of the act of Marcb 16th, 1875 (S. & S. 147), dividing all turnpike companies, within the State intó separate and distinct classes, have a unisorin operation upon all the inenbers of each class and are not in contlict with Article 2. section 26 of tbe Constitution of the State.

Demurrer to amended answer su “zined, and judgment of ouster as to the power of collecting tolls in the manner complained of in the writ.

12. G. M. Drake v. John Meek. Error to the District Court of Brown County. Judgment afirnied. There will be no furtber report.

266. Myer Shonfield v. John T. Shankey. Error to the Court of Common Pleas of Franklin County. Dis. missed on motion of plaintiff in error.

44. Tod v. Stambaugh. Error to the District Court of Mahoning County.


1. It is error to reverse or modify a judgment without having the parties before the wuri affected by such reversal or modification.

2. Where several defendants are sought to be charged upon the same demand, and the defense sot up by one operates for the benefit of all, it is error to reverse the judgment as to the answering defendant and leave it standing in full force against the others.

3. The lessee in a coal lease, by its terms, purchased all the coal on the demised preinises, and agreed, with all reasonable dispatch, to inine and remove the coal, and on the first days of January and July of every year to pay a specitied sum per ton for all the coal that may have been mined and removed; also, that if coal was found sufficient to render the same practicable, to mine not less than thirteen thousand tons annually, or on default thereof to pay for said quantity. It was further stipulated that in the event tliet the payments thus required to be made should be moro than sufficient to

No. 13. Lake Shore and Michigan Southern Railway
Co. v. Joshua M. Nettleson et al. Motion to take cause
No. 474, on the General Docket out of its order for hear.
ing. Motion granted.

14. Ohio ex rel. H. NF. Harrell v. The State Mutual Aid Association. Application for a writ of mandamus. Writ refused under the rule laid down in State v. Williams, 28 Ohio St. 170. Application should be made to the common pleas or district court.

15. Adin G. Hibbs, administrator, v. The Union Central Life Insurance Co. Motion to extend the time for filing printed record in cause No. 783, on the General Docket. Motion granted and printed record filed.

16. Henry T. Brown v. Charles E. M. Jennings. Ma tion to re-instate cause No. 198, on the General Docket of last term, Motion overruled.

Ohio Law Journal.



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ions, and confidently assert it to be the law. And he can point to the cases cited in the notes

appended to nearly every case and say: “In COLUMBUS, OHIO, : : FEB. 2, 1882. these cases the ruling of the principal case has

been followed."

It would seem that as the subsequent volumes APPLICANTS for admission to the Bar, will be examined next Tuesday.

appear, the questions involved would become ex

hausted, and the notes and comments mere iterThe Supreme Court, will, under the rule,

ations. Such, however, is not the case. The call seventy-five new on the General new and novel complications which must exist, Docket, (from 76 to 150 inclusive), on Tuesday in fact, produce new questions in the law, and next.

nothing grows old. We see in this volume

very valuable notes upon the following topics NEW BOOKS.

Patents—Davis v. Bell, (8 N. H, 500)............... 202

Apportionment of Contracts and DividendsA Manual of the Law of Corporations : Including

Cuthbert v. Kuhn, (3 Wharton 357)............... 513 General Rules of Law peculiar to Banks, Railroads, Ro- Contracts whose Consideration is an agreement ligious Societies, Musical Bodies and Voluntary Associations, as determined by the leading Courts of England

to compound or stifle Criminal Prosecuand the United States. By Charles T. Boone, Johnstown,

tion-Town of Hinesburg v. Sumner, (9 Vt. New York.

600 Pp. XVII, 552. San Francisco, Cal. Sumner, Whit

Attorneys Liens for Fees and Costs—Andrews ney & Co. 1882.

v. Morse, (12 Conn. 444)....

752 This book contains, probably, more case and statute law, upon the subject treated of, than

RIGHT OF COUNSEL TO REPRESENT any other, of like size yet published. No single

PROSECUTING WITNESS IN CRIMINAL instance of the right or liabilities of corporations

CASES. seems to have been overlooked by the author.

MESSRS EDITORS : Every contingency conceivable, upon which a right might be predicated, or a liability imposed sion of the question presented by your correspon

I do not propose to go into a lengthy discusappears to have been the subject of some law or

dent, “G," in regard to the right of an attorney, lawsuit, and all have been most thoroughly can

other than the Prosecuting Attorney, who has vassed and cited in this little work. Officers,

not been appointed by the court for that purpose, stock holders, employes and attorneys of corpora

to assist in the prosecution of a person charged tions, can, with this book in their hands, know

with the commission of a felony, but to say that their rights and duties as fully as need be for

the question is not by any means a new one, and any ordinary guidance or protection. We hope the publishers will publish a larger get the better of his judgment.”

that G. probably permitted his "indignation to volume; the work certainly merits a larger page

The theory of our criminal practice has always and type and will prove a great favorite when

been that public prosecutions for criminal acts once properly introduced.

shall be conducted in the name of the State and

by an officer provided for that purpose. Hence, THE AMERICAN DECISIONS: VOL. XXXI.

the provisions for the election of a Prosecuting The principal cases decided in all the States Attorney in each county, who is charged with organized in 1836, '37 and 38, are reported in the duty of prosecuting, in the name and on befull in this volume, and cover the usual range of half of the State, all persons who have been inimportant legal questions.

dicted for criminal acts committed within his It will not be forgotten by the reader that only county. He is the prosecutor, and he only has

. those cases are reported in full, wherein the rul- the legal right to appear in that capacity, and he ings have become undoubted precedents; or must be responsible for the result. where there is a decided conflict of authorities. It is true that the statute confers upon the The great value, therefore, of this series, is in court power to "appoint an attorney to assist the this light the more apparent. The value is very Prosecuting Attorney in the trial of any case much greater indeed than would be that of all pending in such court," and in such case the asthe reports, from which the cases are collected. sistant acts by authority, duly conferred, and is

The student or practitioner may lay his finger under the direction and control of the Prosecuupon any case reported in the American Decis- | ting Attorney in all things connected with the


trial; and there is no doubt that for improper THE INCREASE OF DIVORCE.
conduct in the trial, the court of its own motion,
or at the request of the Prosecuting Attorney,

The Century for January contains a very carecan remove him before the trial has terminated. fully prepared paper by Washington Gladden,

on the increase of divorce, in this country. The There is no authority conferred by statute

writer refers frequently to a lecture delivered by upon a Prosecuting Attorney which will author

the Rev. Samuel W. Dike, of Royalton, Vermont, ize him to call into a criminal case any attorney

and an essay by Theodore Woolsey, D. D. LL. D., as an assistant, except by the appointment of

of New York, on Divorce and Divorce Legislathe court in which the case is pending, and I think that G. wholly mistakes the purpose of

tion. After reciting statistics relating to the

Eastern States, Mr. Gladden says: Sec. 7245. It is well known to the profession

It has been the common belief that certain that Prosecuting Attorneys who had partners

Western States, notably Indiana and Illinois, were in the habit of permitting and inviting

were sinners above all the others in this matter; their partners to assist in the trial of criminal but, so far as the facts have been collected, this cases, without an appointment by the court, and does not appear to be true. Chicago has had the this evil had grown to such an extent that the

reputation of dealing in divorces more exten

sively than any other city in the Union ; but the General Assembly felt called upon to stop it by ratio of divorces to marriages in Chicago appears enactment, which it did by the section referred to be only one in twelve-less than New Haven to. The purpose of this section, so far as it re- or Bangor. lates to the subject under discussion, is to pre

The most startling figures are reported from vent any attorney from prosecuting in whole, or

the Western Reserve of Ohio—a region inhabited


by a population almost wholly sprung from New in part, a criminal case, without having been England stock. In these counties, Mr. Dike elected, or appointed for that purpose. All others


“the ratio of divorces to marriages was who undertake to prosecute are intruders, and 1 to 11.8 for the two years 1878 and 1879, while the court has the right to protect itself and the

for the rest of the State it is 1 to 19.9. Nor is

the worst of the Reserve in the cities. The ratio party on trial by the removal of the intruder.

in Ashtabula County, among a farming people I do not know what the facts are in the cases originally from New England, is 1 to 8.5. And referred to by G. except that of Price v. The

in Lake County the proportion of divorce suits State, 35 O. S. 601. In that case the record begun to marriages is 1 to 6.2, and of divorce clearly shows that after the trial had commenced granted, 1 to 7.4. Unless there be like counties

in Maine, this is the worst county in divorces in in the court of common pleas, C. H. Blackburn the United States-except Tolland County, Conwas appointed by Judge Longworth, before, necticut, as that was for a few years." whom the case was tried, to assist the prosecu

This picture is dark enough, but another tion in the trial of the case, and the only ques

shade must be added. In at least four of the

New England States, more than one-fourth of tion upon this subject, decided by the Supreme

the marriages reported are those of. Roman CathCourt, was that Judge Longworth had authority olics. Among these there are no divorces to to make the appointment, and in doing so his speak of. The number granted should be com

' act was legal. To the appointment of Blackburn pared, therefore, only with the number of Protestby the court Price excepted.

ant marriags, and this would make the ratio

much higher,-one to fifteen in Massachusetts; It is true that the Supreme Court in the opin- one to thirteen in Vermont; one to nine in ion in this case say: “We are unwilling to say

Rhode Island, and one to less than eight in Conthat the Prosecuting Attorney, the injured per

necticut. son or his friends, may require the court to make

The following suggestions are made, by Mr. such appointment. On the contrary, the ap

Gladden, looking toward'an improvement of the pointment should not be made in any case un

laws' and a lessening of the evils connected less the due administration of justice requires it.

with divorces: But where the record is silent upon the subject,

1. The distinction formerly recognized in we will presume that such appointment was

most of the States, and now abolished in most of

them, between absolute divorce and legal sepaproperly made.” * * *

ration, should be restored. For the crime of It is then the appointment by the court which adultery, for desertion (after a long term of years), gives an attorney the right to assist the Prosecu- and perhaps in the case of the imprisonment for ting Attorney in the trial of a criminal case.

life of one of the parties, absolute divorce might

be granted; in, some of the other cases for which A..H. B.

divorces are now granted, --such as drunkenness, STEUBENVILLE, U., Jan. 28, 1882.

cruelty, and neglect,--separation from bed and


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board might be allowed, giving to neither party mony to procure a license at least two weeks bethe right of marrying again, and leaving the way fore the solemnization of marriage; and to place open for the reunion of the separated parties. the license thus procured in the hands of the

2. Where adultery is a crime, the granting clergyman or magistrate before whom the marof a divorce for adultery should be followed at riage is to be solemnized, also at least two weeks once by the arrest and imprisonment of the before the celebration of the rite. An opporcriminal. “Provision should be made," says Dr. tunity would thus be given the clergyman or Woolsey, " that the penalty should follow the magistrate to investigate cases with which he sentence of divorce without any other trial.” might not be familiar, and to assure himself that This is the simplest common sense. Our laws he was proceeding in accordance with the reare brought into contempt when the ecurts per- quirements of divine and human law. mit men whom they have judicially pronounced 3. The license should state on its face to be criminals to escape the consequences of whether either of the parties has been previtheir crimes.

ously divorced, and if so, where, when, and for 3. If absolute divorce be allowed for other what cause. causes than adultery, the law should prescribe Such provisions should not seem irksome to a limit of at least three years within which the well-meaning persons; and they would not only guilty party should be forbidden to marry. serve to prevent foolish perple from rushing

4. No indeterminate causes of divorce, such into a relation for which they are wholly unfitas those included in the famous “omnibus ted, but would also assist clergymen in the intelclause” of Connecticut, and in the statutes of ligent performance of a difficult and delicate other States, should be recognized. To recognize duty. incompatibility of temper, general misconduct, and other vague and impalpable grounds of ac

TURNPIKE COMPANIES. tion, is mischievous in the extreme. It is through such clauses that the worst abuses of

SUPREME COURT OF OHIO. divorce creep in.

5. The state's-attorney ought to appear in STATE OF OHIO EX REL THE ATTORNEY GENERAL. every uncontested divorce suit, to protect the interest not only of the absent party, but of the PORTSMOUTH AND COLUMBUS TURNPIKE COMPANY, public. The public has an interest in every

South. such case. It is not simply a question between the two parties, any more than theft, or the ut

JANUARY 24, 1882. tering of counterfeit money, or traffic in diseased

The acts of March 27th, 1875 (720. L. 85), and of June meat, is merely a question between the two par- 12th, 1879 (76 O. L. 153), amendatory of the act of March ties to the transaction. The state is as much 16th, 1875 (S. & S. 147), dividing all turnpike companies, interested to maintain the sacredness and per

within the State into separate and distinct classes, have

a uniform operation upon all the members of each class manency of the family as it is to maintain an and are not in conflict with Article 2. section 26 of the honest currency. And the people ought not to Constitution of the State. sit by and let the institution of the family be Application for the writ of Quo Warranto. undermined by scores of fraudulent and collu- The petition recites that the defendant is a sive divorces.

corporation under the laws of this State, owning A few such changes in the laws would inter- and operating a turnpike road running from pose a wholesome check to the present tenden- Chillicothe through Ross, Pike and Scioto councies. Reforms like these would make it plainer ties, to the village of Portsmouth. It further althan it now is that our States do not wish to en- leges that for more than four years it has miscourage divorce;, that they mean rather to do used its franchise to collect tolls by charging a what they can to preserve the integrity of the higher rate than is allowed by law. family.

The defendant, by an amended answer, avers Something may also be done by law to prevent that it was incorporated under a special act of hasty and ill-assorted marriages. Easy divorce the General Assembly of Ohio, passed February gives rise to rash marriages-since it can be so 7th, 1834, (29 O. L. 34); and subsequently aceasily done for, no matter what it is begun for; cepted the provisions of the act of March 16th. rash marriages, on the other hand, furnish the 1865, entitled, “an act to fix the rates of toll on soil from which many divorces spring. Stricter turnpike and plank road companies." ($. & S. divorce laws would tend to keep people from 147); and has ever since collected and charged rushing into wedlock; but something can be the tolls, in this last act allowed and specified, done directly by law to secure this result.

and no more. 1. It is a question whether the old rule, re- The amandments to this act, passed March quiring the publication of the intentions of mat- 27th, 1875, (72 0. L. 85) and June 27th, 1875, rimony a week or two before the marriage, ought (76 Ó. L. 153), defendant declares violate the ornot to be restored. The publication, if made, ganic law of the State, and are unconstitutional should now be made, of course, in the newspa- and void. To this answer a general demurrer is pers, and not in the churches.

interposed. 2. Whether this is done or not, the law By these amendments the rates of toll which should require the parties contemplating matri- turnpike companies are authorized to collect, are

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reduced. The first, however, contains a proviso county, and that the services referred to and menthat its terms shall not apply "to companies tioned in said petition, were services rendered in which are in debt for the original construction counseling and advising and prosecuting said of said turnpike until five years from the pas- criminal suits before the mayor, and writing and sage of this act.” The second excepts from its copying papers necessary thereto.. And this deoperation “turnpike roads constructed of and fendant admits that its officers did consult the kept in repair with two-thirds broken lime plaintiff in regard to said criminal prosecutions, stone,” which are permitted to charge the same and state the facts relating to the same to the said rates as formerly.


, and ask his advice and direction thereIt is claimed by the defendant that these stat- in, and that the said plaintiff did advise the utes do not operate uniformly upon all incopo- prosecution of said criminal suits, and aid in the rated turnpikes, and are therefore in conflict preparation of papers for the same and appear with Article 1, Section 26, of the constitution before the said mayor in the prosecution of the which provides that “all laws of a general na- same, at the request of the officers of this defendture, shall have a uniform operation throughout ant; but this defendant denies that the plaintiff the State.

was offered or promised any compensation thereConverse, Booth & Keating, for plaintiff.

for, or that he is entitled to any.

A demurrer was interposed to this answer and M. A. Daugherty, Huston James and Okey the same was sustained ; and no further answer & Throckmorton, for defendant.

having been filed, the cause was, by consent of BY THE COURT.

parties, submitted to the court on the petition The classifications of all turnpike companies, favor of Lee for three hundred dollars and costs,

and evidence, and judgment was rendered in adopted by the amendments of the act of March 16th, 1865, are not unreasonable or arbitrary;

which judgment was affirmed in the district

court. and inasmuch as their provisions have a uniform

This petition in error is filed to reverse operation upon all the individuals comprised in

both judgments. each class, they do not fall within the inhibition S. A. Bowman, for plaintiff in error. of Article II, Section 26, of the constitution. Gilmore o. Lewis, 12 Ohio, 281; Goulden v. The [This case will appear in 37 0.8.]

State, 11 Georgia, 47. And see Rea v. Smith, 2

Handy, 193.

T. P. Finefrock, for defendant in error, and B.

F. Lee, in person.

Smith v. Portage County, 9 Ohio, 25. And see

Sharp v, Kirkendall, 2 J. J. Marsh, 150; Davis v. CINCINNATI, SANDUSKY & CLEVELAND RAILROAD Munson, 43 Vt., 676 COMPANY,

Okey, C. J.:

Lee having performed services as an attorney, BENJAMIN F. LEE.

in pursuance of the request of the railroad com

pany, the agreement of the company to compenJANUARY 24, 1882.

sate him would be implied, in the absence of any Where a prosecuting attorney appears before a magistrate, at the request of a citizen, and prosecutes one

other fact. But the law does not imply such charged with the commission of a felony, preparing the promise in all cases where one performs service papers necessary for such purpose, there is no implied at the request of another. Take the familiar excontract that such citizen will pay him for such services.

ample of a son who continues, after arriving at Error to the District Court of Erie county. age, to live with hìa father, and perform service

On May 22, 1875, Benjainin F. Lee brought suit at his request. The son may have expected to in the Court of Common Pleas of Erie county be paid wages, but from the mere fact that he against the Cincinnati, Sandusky and Cleveland acted under direction of his father in the same Railroad Company, to recover for services ren- way as during his minority, a contract to pay dered as an attorney at law, for and at the re- wages will not be implied. To constitute an quest of the company. The services, it is al- agreement to pay wages in such a case, it is not leged, rendered in February, 1874, were the prog- essential that any price should be fixed, but ecution of suits, drawing and copying papers, words must be employed showing that both parand giving advice to the company's agents in its ties understand that wages are to be paid. business.

It is the duty of the prosecuting attorney to The answer is as follows: "Between the 10th conduct the prosecution of offenders in the court and 20th days of February, 1874, the plaintiff was of common pleas; but in Smith v. Portage County, the duly elected and qualified, and acting prose- 9 Ohio, 25, it is said that he is not bound to ap cuting attorney of Erie county, Ohio, which said pear before a justice of the peace or mayor, in office was held by the plaintiff from the first day criminal case. The law remains the same to the of January, 1873, to the first day of January, present day. But in fact that officer, in many 1875, and the certain suits in said petition re- cases, appears voluntarily in the examining ferred to were criminal suits for felonies against court, and conducts the prosecution there. He a citizen of said Erie county, instituted before does the same thing sometimes at the request of the mayor of the city of Sandusky, in said Erie 4 citizen, without any expectation on his part to

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