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SUPREME COURT OF OHIO.

JANUARY TERM,

1888.

Hon. John W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon.

. Geo. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

is to be determined upon consideration of all the circumstances; and, ordinarily, the question is one of mixed law and fact and not merely of law.

2. Y. was employed by D. to carry a sum of money, consisting in part or four 8500 bank bills, to the town of C., there pay part of it to S. and carry and deliver the balance to him (D.), owner of the money. Y. went to C. by passenger train at night, riding in the same seat with F., an acquaintance, the car being half filled with passengers. While on the way Y., at the request of F., let the latter have one of the $500 bills in exchange for smaller bills. On arriving at C. the package of money was taken by Y. to a store in charge of B., and handed to B., who at the request of Y. locked it in his safe, the safe being one in which D. usually deposited his money. In the niorning when the inoney was taken from the safe and count:d, another $500 bill was missing. Y. paid s. as directed, and on the same day gave the receipt of S. and the balance of the money to D. and stated to him the above facts. D. accepted the receipt and money, but brought suit against Y. for $500, basing bis right to recover on the ground of negligence: Held, that on the facts stated, the court could not say as matter of law that Y. was liable.

Judgment affirmed.

4. Charles Merling v. Isabella Hamilton, Error to the District Court of Ashland County. Judgment reversed on the authority of Baker v. Beck with, 29 Ohio St. 314. There will be no further report.

57. A. T. Johnson et al. v. The Trustees of Geneva Township et al. Error to the District Court of Ashtabula County. Judgment afiirined. There will be no further report.

Tuesday, January 31, 1882.

GENERAL DOCKET. No. 62. Isaac T. McLain v. B. W'. Simington. Error to the District Court of Morrow County.

LONGWORTH, J.

1. The undertaking for attachment provided by section 193 of the Code of Civil Procedure (2 S. & C. 1004), is not a specialty, and the want of a seal does not affect its validity.

2. Where the name of the surety to such undertaking does not appear in the body of the instrument, but the language used is, “We, A. B. andhereby undertake &c," the omission of such name does not affect the validity of the undertaking or the obligation of the suretv. Language of opinion in Stephens v. Allmen et al. 19 Ohio St. 485, qualified.

48. Mary Letitia Gifford v. David Morrison. Error to the District Court of Cuyaboga County.

MCILVAINE, J., Held:

A court of equity will not decree a judgment lien to be invalid on the ground of the want of legal notice to the defendant, where the plaintiff has not been guilty of misconduct and the defendant had actual knowledge of the pendency of the action, unless a meritorious defense to the action be shown.

Judgment affirmed.

WHITE, J., concurred in the afirmance of the judgment without approving of the syllabus as applied to the case.

29. Alonzo Chesbrough v. The Commissioners of Putnam and Paulding Counties and others. Error to the District Court of Putnam County.

JOHNSON, J., Held: 1. It is within the scope of legislative power, to provide, as is done by Section 22 of the Act relating to Ditches (68 O. L. p. 60), that where a proposed ditch is in more than one county, a majority of the board of county commissioners of each county, may, in joint session, locate and establish the same.

2. Under said section, each board of county commissioners constitutes an integral part of the joint body, and it is essential to the validity of the proceedings in joint session, that a majority of each board should concur therein.

3. In a proceeding under said section, application for damages must be made to the commissioners of the county where the land is situated. The commissioners of such county, and not the joint body, are to determine the compensation and damages to be paid such applicant.

From such award an appeal lies under secs. 12 & 13 of said act as if said ditch was wholly within that county.

4. It is the public health, convenience or welfare of the community to be affected by the proposed ditch, and not that of the public at large, that is to be regarded in the construction of a ditch. Hence, if it appears that the proposed ditch will be “conducive to the public health, convenience and welfare of the neighborhood” through which it will pass, the commissioners are authorized to construct the same.

6. When the commissioners have apportioned the cost and expenses and amount of work to each land owner, and have on due notice heard exceptions thereto, and confirmed such apportionment, it will be presumed in the absence of proof to the contrary, that such apportionment is just and fair and was made with reference to benefits to be derived from the improvement.

Judgment afirmed. 32. Darling v. Younker. Error to the District Court of Coshocton County.

OKEY, C. J.

1. Where an action is brought against an agent who, having received money to be carried to his principal, claims that the money is lost, the burden is on the agent to show there was no breach of duty on his part ; and this

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MOTION DOCKET. Nos. 21 and 26. Oshe v. The State. Cain v. The State. Motions for leave to file petitions in error to reverse the judgments of the District Court of Muskingum County.

WHITE, J. Held: 1. The Act to revise and consolidate the general statutes of the State, embodied in the Revised Statutes, is not void as being in conflict with Section 16, Article 2, of the constitution.

2. The offense defined in Section 6942, of the Revised Statutes, consists in the keeping of a place, where the bus. iness of the unlawful sale of liquor is carried on; and the section is not unconstitutional in not requiring such place to be one of public resort.

3. In an indictment under said section, it is a sufficient description of the unlawful sales to aver that they were made “in violation of Section sixty-nine hundred and forty-one, of the Revised Statutes of Ohio;" and the reference to the section must be understood as referring to the section then in force.

Motions overruled. 17. Orrin S. Farr v. Frank S. Torrey et al. Motion to dismiss cause No. 441, on the General Docket, for want of printed record. Motion granted,

18. Henry S. Upthegrove v. The State of Ohio. Mo tion to take cause No. 1021, on the GeneralDocket, out of its order for hearing. Motion granted.

19. Charles Bennett v. The State of Ohio. Motion to take cause No. 10:22, on the General Docket, out of its order for hearing. Motion granted and cause submitted.

20. John Hanes et al. v. E. H. Munger, Administra tor, &c. Motion to dismiss cause No. 854 on the General Docket for want of printed record, and counter motion for leave to tile printed record. Motion passed for further hearing as to reasons for extending time for filing a printed record.

22. Miles D. Carrington v. George Schuler. Motion for leave to docket a reserved case. Motion granted.

23. Charles King v. Julia King. Motion to advance causes Nos. 123 and 551 on the General Locket, to be heard with cause No. 104 on the same docket. Motion granted.

24. Wm. H. Beaumont et al. v. Lyman Little et al. Motion to re-instate cause No. 19 on the General Docket. Motion granted on good cause shown.

25. Board of Education of Riley Township v. Albert Wilkins et al. Motion to take cause No. 833 on the General Docket out of its order for hearing. Motion granted.

27. Simon V. Harris v. The State of Ohio. Motion for leave to file a petition in error to the District Court of Muskingum County. Motion granted.

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Revised Statutes of Ohio. Second Edition Revised and

We have heretofore studiously avoided any ed-" Corrected. 2 Vols. H. W. Derby & Co., Columbus, Ohio 1882.

itorial mention of, or comment upon the various We have received from the publishers, H. W. measures proposed for the relief of the over-burDerby & Co., of this city, the Revised Edition of dened Supreme Court of the United States. We the Revised Statutes of Ohio. It will be re- presume the discussion is within the province membered that the work of the Codifying Com- we might assume to be ours as a law journal, but mission was hurried forward by the peculiar we are modest, and, although we have views," phraseology of the law creating the Commission, we do not take a mean advantage and foist such to such a degree that perfect accuracy in the views upon our readers siniply because we can. verification of references and citations was impos- Our columns are open to our patrons, and they sible. The inaccuracy resulting therefrom has are all lawyers and good lawyers—and by far too proven so annoying that Messrs. Derby & Co. well supplied with knowledge and good sense to have been induced to revise the work, to correct derive any benefit from the private opinions or typographical and other errors, and to make the editors. If we possessed the egotism of the certain improvements absolutely essential in a Albany Law Journal we might advertise ourbook so constantly used by all lawyers and bus- selves as an oracle and discuss things as flipiness men.

pantly as that paper. But we have too high reOver five thousand new references have been gard for the dignity of the profession, and too added to this edition. Many errors, which much mercy upon law journal readers. reversed the true meaning of the law-contained The fact that two bills have been offered in Conin the old edition have been noted in the

gress having in view the reorganization of the new.

Supreme Court of the United States, and that a The references to the session laws have been meeting of distinguished lawyers and represencorrected and references also added, opposite each tatives of State Bar Associations, is to be held in section, to the corresponding laws contained in

in New York, to help along the work of reform, Swan & Critch field and Swan & Sayler.

is probably well known to all our readers. What These corrections and additions together with

is to be accomplished by all this effort, however, notations, references, &c., to amendments, re- is not known and can hardly be conjectured. peals and supplemental sections in the session

That the court is buried under an accumulation laws of 1880 and 1881, with revised and corrected of cases from which it can never extricate itself Index and cross references will save public officers without aid, is well known also; and the quesand the legal profession much vexatious labor, tion arises, “What can be done?and so facilitate their inquiries, whether a section

We are face to face with a dilemma of most of the Revised Statutes is a new law, an old law already construed, a modified or revised law, or

uncompromising boldness. The accumulated

business awaiting the action of the Supreme has been repealed or amended since the first edi

Court of the U. S., cannot be disposed of by that tion of the Revised Statutes was published.

court. And the business so accumulated cannot Considering the errors in the first, and these

be transferred from that to any other forum withgreat improvements and amendments in the

out a palpable violation of the constitutional second, it is certain that the old will speedily rights of the litigants. Until the Constitution and generally give place to the new.

is amended there can be no division of the suIn addition to this we are assured that here- preme court. The framers of the Constitution after all amendments, repeals, changes, modifica- were determined to make the highest judicial tions and interpretations, will follow the second power of the country resident in one court. The edition in a uniform series, referring constantly pertinacity with which they clung to the declathereto and making a complete encyclopedia of ration that there should be but one Supreme the statute laws of the State. This will, render Court—through all changes and discussion

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widens the field of appellate

jurisdiction that its p

amply proves the intention of the old law mak- judges. And if numbers alone prevail, how can ers. Every measure of relief yet proposed vio- the U. S. Supreme Court with nine judges, inlates this principle.

duce New Jersey with ten members of her highThe comparative merits of the Davis Bill and est tribunal to bow in meek submission to the wisManning Bill, we need not discuss. The first so dom of the former. The ability of the U. S. su

preme judges must be rare indeed ; and rare increase of judicial force will be speedily ab- ability does not grow in profusion.) sorbed and the dockets again be overcharged

Then, again, five judges-good judges-will with business.

hear and determine more cases than can fifteen, The Manning Bill is open to the objection and a greater percentage of those will be correctly that it is unconstitutional, for reasons mentioned decided. Five can confer and deliberate. Fifabove; and while it contemplates relief to the teen would discuss, debate, make speeches and Supreme Court alone, can not be considered the

procrastinate. measure needful. An increase of judicial force will not do. The

The court of last resort must be a Supreme highest court-the court of last resort, in a great

Court; or we must change the Constitution. A nation, does not necessarily require to be com

Supreme Court cannot be divided, else where posed of a great number of judges. Indeed the

will the supremacy reside? And if perchance greater the number the greater certainty of be

the same question, raised in different cases, were ing compelled to fill the bench partly, at least,

decided difterently in the various divisions, with inferior material. Nations, even as great as

which would be the law ? Which would be folours, do not produce great jurists in large numbers.

lowed by the lower courts, and which division There may be three, possibly five in the United

would yield ? States, to-day, who are fitted to sit in the highest These objections to the plans proposed we are tribunal of the land. But there can be no more; sure will defeat them. For we are sure the law. and the voice and vote of a weakling who may yers in Congress will also urge them. We have be placed in office by politicians, is as potent great hopes, however, of seeing a plan proposed in deciding cases as that of a giant in intellect by the coming convention in New York. Hon. and juridical ability. The greater number of Rufus King, of Cincinnati and Hon. Rufus P. judges the greater absolute certainty that a part Ranney, of Cleveland, will be there and if they of them will be of mediocre talent. (We may are not attacked and their usefulness obstructed be misunderstood in this matter. An appellate by some ungodly reference-by some jealous system of administering justice presupposes a New Yorker-to the agonizing plethora in the grading upward of judicial ability, otherwise Ohio Supreme Court, which all our legal wherein would the rulings of a Supreme Court doctors cannot cure-we know theirs will be valbe superior to those of a justice of the peace? uable aid to the convention.

There are 191 Supreme Court judges of the various States of the United States. They are -Since the foregoing remarks were written, practically of equal ability. If the Supreme we have received from Hon. Lorenzo Sawyer, of Court of the United States is not to be far

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San Francisco, Cal., the draft of "A Bill to Rerior to the average ability of these one hundred organize the Courts of the United States, and pro

and ninety-one, what a farce is played in the ride for additional Appellate Courts." We can

maintenance of a tribunal to which appeals may not now go into review of the plan therein pro lie from the State Supreme Courts; and would not posed, but will do so at some future time. The the rulings of the eight judges in the Massachu- remarks of the author of the “bill” or plan, insetts, Maine or Maryland Supreme Courts be as dicate an appreciation of the difficulties, but the wise as those of any eight judges of the U. S. relief proposed is open to the objection, that, like Supreme Court ? And as but seven judges are the other plans, a large additional furce of usually on the bench in the latter court, in what judges is contemplated therein, and this we respect is their wisdom better than the wisdom cannot believe will ever cure the defects of the of the Supreme Courts of California, Illinois, present system or inaugurate a better one. The New Hampshire, Pennsylvania or New York, Sawyer bill and the remarks of the author is each of which has seven judges—if the U. S. neatly printed and bound by A. L. Bancroft &

judges are no wiser than the State Supreme Co., San Francisco, Cal.

RIGHT OF COUNSEL TO REPRESENT | living in constant fear of a repetition of the

PROSECUTING WITNESS IN CRIMINAL wrong, and in constant danger of losing lifeCASES.

and naturally desirous of punishing the of

fender and of protecting life and property, are WAVERLY, O. Feb. 4, 1882.

compelled to employ private counsel to prosecute. EDITORS Ohio Law JOURNAL, COLUMBUS, Ojnio: And even then it not infrequently happens that An article under the head, "Right of Counsel

the Prosecuting Attorney working in the interto represent Prosecuting Witness in Crimanal

ests of the law breaker, goes before the grand Cases," appeared in the Law JOURNAL of the date of January 26, 1882, signed “G.”

jury and by false statements as to the law, preThe article contains several false statements

vents an indictment. Dishonest and incompeand some malicious and unjust insinuations. Il.tent prosecuting attorneys have forced upon the write this not to correct such false statements

people the custom of employing private counsel. and expose in their proper light the unjust in

Their incompetency forces upon the court the sinuations, nor to make a complaint against the writer, but to say, such an article should not be

necessity of selecting an attorney to prosecute, published in a law journal-surely not without to guard the interest of justice and the supremgiving the name of the writer. It must be re- acy of law. Counties which pay thousands of membered your ir per is read by most of the

dollars annually. to attorneys appointed to do members of the bench and Bar in this State, who not knowing the writer, have a right to presume

the work of the officer elected and paid for that your reporler was a fair and impartial person, un

purpose, can testify to the extent of the evil and prejudiced and unbiased and that he sustained its very annoying results. å good character and reputation for truth and This we admit has no bearing upon the law veracity as well.

under discussion except that it explains the reaBut if it had appeared from the article or the journal, that "G." stands for Grosvenor of Athens,

son of the growth of the custom. and that he was the “attorney-at-law residing Judge Tripp is strongly supported in another in an adjoining county,” the presumption above communication published below which is from stated could not arise to that degree; at least the pen of one of our best lawyers. that any possible harm could have resulted from

We might add in allusion to the remark by its publication, in the judicial district where he is well known and where it evidently was in- | Judge Tripp,“that such articles should not aptended to injure. Had it been signed by the pear in a law journal," that when eminent genwriter it would have been passed, by me at least, tlemen discuss questions of grave public import in silent contempt.

though our columns, and in so doing use strong JAMES TRIPP.

language, we are impelled to the belief that the We publish the foregoing simply as a matter

good resulting to the public therefrom by way of of justice to Judge Tripp. Having been named

correcting abuses or misconceptions of law, will in "G.'s" communication, and writing now over

more than countervail the wounds upon the dighis full signature we could do no less than pub- | nity of their innocent medium-the Law JOURlish his letter. We regret, however, that the lan

NAL. guage of both articles is so emphatic and inclines

It is well known, also, that great statesmen, great so strongly to the personal.

lawyers, and sometimes great judges do not hæThe question discussed is an open one and the bitually make use of honeyed phrases in expresspro and con as urged by both parties will doubt

ing themselves. less lead to a better understanding of the principles involved and possibly to legislation settling

EDITORS OF OHIO LAW JOURNAL: the matter, if not to the satisfaction of all, at I have been considerably interested in two least beyond its present state of uncertainty. communications which have recently appeared Should the ruling of Judge Tripp be sustained in your columns as to the right of prosecuting by the Supreme Court; or should the law be witness to be represented by counsel in crimiamended so as to be clearly understood, one nal cases. happy result would be secured at least. And The first article is written as a criticisin not people would then elect lawyers instead of pet-only of the ruling of the judge in the case, but tifoggers to the office of Prosecuting Attorney as the manner of the judge in making the same is now sometimes done.

and some of the reasons given for making it. Upon It has come to be a recognized fact in some coun- these points I do not propose to express any ties we could name, that persons who have been opinion as of course I have no means of knowing grieviously injured-cut, beaten and wounded- the precise state of affairs, but will merely call

zen.

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attention to the following language, “the decis- There is in the criminal law no injured party ion was an arbitrary opinion of this judge, un

but the State. The same act which is a crime supported by law, precedent or common sense." against the State, may also be a tort for which

That the right of the government to employ the injured party may have a civil remedy, but special counsel to represent it either as assistants this gives him no greater right to have the acto the law officers of the crown or to conduct the cused punished, criminally, than any other citicases in their absence, has been recognized at The people are represented by their officer common law from time immemorial, no one at chosen for the double purpose of convicting the all familiar with the criminal trials of England guilty, and preventing the conviction of a party will for a moment dispute, and there is probably

who is innocent, and it is a part of his sworn no doubt but that even in the absence of any duty to seek the conviction of those whom he statute on that subject, the court might per- believes guilty, and the prosecutor who obtains mit the Prosecuting Attorney to have assistance

the conviction of an innocent man, by misetatewhere it was deemed necessary, and section 7196

ment of facts to the jury or by any iniproper inof the Revised Statutes. would only be declara- Auence, violates his oath of office. tory of the common law so far as the appoint- The law so abhors the conviction of an innoment of assistant counsel is concerned..

cent man, that it is said, it is better that a The statute does not expressly permit a Prose- thousand guilty should go unpunished than one cuting Attorney to call any person into the innocent man be punished. And while there case without the permission of the court, and the may be danger of the acquittal of the guilty, only thing in the Code which would warrant this there may also be danger that even with an unpractice would be, that as section 7245 expressly prejudiced prosecutor, who does his duty under prohibits a partner of the prosecutor from assisting his oath, that an innocent man may be conin the case, unless assigned by the court, the im- victed. But if an injured party is allowed to plication arises from the maxim Expressio unius, employ and pay counsel, in a criininal case, what exclusio alterius, that none are excluded, except is the purpose of such employment? those embodied in the prohibition.

To secure the conviction of the accused, is certainThe writer does not çite any authorities either ly the sole purpose of the retainer. The lawyer under the common law or from any other State, to works not to uphold the majesty of the law; he show that the courts have admitted the right works to accomplish the purpose of his client. claimed, and but one in this State, which, upon He goes into the case, not to see that justice is examination, certainly does not uphold the posi- done, but if possible, by his eloquence, to drive tion taken by him. That case, Price v. The from the minds of the jury the doubts they may State, 35 O. S. 601, only holds that one judge, have of the guilt of the party, and he does this holding court in Hamilton County, notwith

not because the law should be upheld, but bestanding the fact that there was a regular assist

cause his client desires that the accused should be ant prosecutor in that county, could assign punished. assistant counsel, but expressly denies that even the Prosecuting Attorney, the injured

With this view of what is the design of the party or his friends, can require that to be done,

criminal law, we think the view of the judge in and that the appointment should not be made refusing to allow outside lawyers hired by the unless the due administration of justice requires prosecuting witness to assist in the case, is not it. This would seem to warrant the conclusion

without “common sense” and that it is upheld that if the court is not required to appoint an as

by the principles which underlie the criminal

law. sistant, it is not required to permit a person not 80 appointed to come into the case, and then the As the Supreme Court say, an appointment of question presents itself, does the principle of the a lawyer to assist the Prosecuting Attorney criminal law require it, or even allow it.

should not be made unless the due administraThe doctrine of the law is, that every person

tion of justice requires it, it would seem to follow charged with crime is innocent uutil proven

that the judge ought not to permit a man, not guilty.

appointed for that purpose by the court, to take Another idea at the basis of the criminal ļaw is part in the trial. that the offence is not against the individual, but

0. W. A. against the peace and dignity of the State. COLUMBUS, O., Feb. 6, 1882.

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