this ruling was prosecuted in the district court. The latter court affirmed the order of the common pleas. This judgment of affirmance is now before us for review.

LONGWORTH, J.

The undertaking in question is unsealed, and the name of L. Maxwell, the surety, is omitted in the body of the instrument. Do these omissions affect its validity? We think not.

Although often erroneously called a bond, the undertaking provided for by section 193 of the Code (2 S. & C. 1004), is in no sense a bond, nor is there any law which requires it to be executed with the formalities of a specialty. It is not required to be under seal.

Doubtless cases might arise when such a total omission of description of the parties existed as would render it uncertain whether the names were signed to the instrument as evidence of an obligation assumed or merely as an attestation, But such is not the case here. The language in the instrument before us is "We, B. W. Simington and hereby undertake

&c." The pronoun we, in this connection can only refer to the persons whose names are subscribed.

Plaintiff in error relies upon the case of Stephens v. Allmen et al., 19 Ohio St. 485, and we are constrained to say that the language of Brinkerhoff, J., in delivering the opinion of the court, seems to bear him out. In that case the writing in controversy was the official bond of a Justice of the peace and was unsealed. It was properly held by the court that this defect was fatal and this is all that can be reasonably gathered from the judgment and the syllabus of the case. The learned judge however, in his opinion, seems to base his decision upon the statement that "The additional names subscribed to the official bond not appearing in the body of that instrument, there are no words of obligation to bind them, and they are of no significance whatever."

We cannot find from the report of the case cited, what was the language used in the bond referred to; but we have no hesitation in saying that if it was substantially the same as that of the undertaking before us, the reasoning of the judge was erroneous. It is directly opposed to the decision in State for the use &c. v. Boring et al., 15 Ohio R. 507-517, and numerous other

cases.

Brandt in his work on Sureties, cites authoritative decisions in support of the following propositions which do not seem to have been seriously disputed:

"Although the name of a surety is not mentioned in any part of the body of a bond, but a blank intended for it is left unfilled, yet if he sign, seal and deliver it as his bond, he is bound. So where the name of the surety is not mentioned in the obligation part of a bond, but is mentioned in the recital of the condition, if he sign, seal and deliver it he is bound. Where one signs 'a lease between the signature of the lessor and lessee. in which lease it is said that

the lessee 'binds himself and his security,' but no name of a surety is mentioned in the lease and the lease is signed in the presence of others who sign it as witnesses, the party who signs between the signature of the lessor and lessee, will be held as surety on the lease. So where a lease had been signed by the lessor and lessees, and D., whose name was not mentioned in the lease, signed his name to it after the names of the lessees, adding to his name the word 'surety,' it was held that it sufficiently appeared that D. was the surety of the lessees and that he was originally and not collaterally liable." Brandt on Sureties § 15.

With respect to the second ground of alleged error, suffice it to say that, after a careful examination of the evidence, we do not feel warranted in disturbing the findings of fact made by the court below.

No. 8. Union Central Life Insurance Co. v. Emma A. Cheever. Error to the Superior Court of Cincinnati. Judgment affirmed. Okey, C. J., dissented on the ground that the verdict is against the evidence, There will be no further report.

15. James P. Kilbreth v. Adelaide Bates et al. Executors. Error to the Superior Court of Cincinnati. Judgment affirmed. An opinion in the case will be prepared hereafter.

25. David W. Cross v. Tisdale Winslow. Error to the District Court of Cuyahoga County. Petition in error dismissed on the ground that there is a defect of parties.

181. Lake Shore and Michigan Southern Railroad Co. v. W. T. & A. K. West. Error to the District Court of Erie County. Dismissed on motion of plaintiff in er

ror.

MOTION DOCKET.

No. 20. John Hanes v. E. H. Munger, administrator &c. Motion to dismiss No. 854 on the General Docket for want of printing, and counter motion for leave to file printed record. Motion to dismiss overruled, and counter motion granted.

28. Franklin Hubbard v. North Western Savings Bank. Motion to dispense with printed record in case No. 1003 on the General Docket, and to advance the case to be heard with No. 237 on same docket. Motions granted.

29. Daniel Bills et al. v. Myron Bills. Motion to dispense with printed record in cause No. 1024, on the General Docket. Motion Granted.

30. John W. Tweed v. George Shew. Motion to extend time for printing record in cause No. 977, on the General Docket. Motion granted.

The court called, under the rule, 75 cases, from 76 to 150 Inclusive.

The court will take a recess from Thursday the 9th until Thursday the 16th inst. at 9 o'clock.

Your correspondent, "a subscriber," has done a service in calling attention to the fact that Section 7245, Rev. Stat. was amended, and repealed March 11, 1880, 77 O. L. 59.

The force to be given to the repeal of the statute, it seems to me reflects upon the present state of the law; as the statute stood before that repeal "nor shall the partner of the Prosecuting Attorney assist in the prosecution of a criminal act, unless assigned to such prosecution by the court &c." One year later the General Assembly amended that section by eliminating the restriction above in quotation. The rule is, that the act of the Legislature in changing the terms of a statute must be construed to have been done

with the legislative intent to change its meaning and operation, 8 Blackfords Reports 275. The State on Complaint &c., v. Gray. When the Legislature, therefore, amended this section so as to leave out the enactment that the partner of a Prosecuting Attorney should not prosecute "unless assigned &c.," the change in phraseology changed the law.

It will be borne in mind that it was not claimed, originally, that any one had a right to appear and assist the prosecution, and hence very much of the argument made in the LAW JOURNAL has been upon a question not made. It was not claimed that counsel retained by outside. parties might demand to appear. It was, and is only claimed that the court might in its discretion permit such counsel to appear.

The practice in Ohio for three-fourths of a century has been thus. There is no law which denies such discretion to the court. No rule of law is set aside by the practice; and no good reason can be found to condemn it.

I forbear to comment on the admirable temper, and judicial spirit manifested by the distinguished judge who made this decision, in his recent able defense of his opinion. The animus of the one relates back to, and gives color and explanation to the other.

G.

MANDAMUS-EXPENSES OF INSANE PATIENTS IN STATE ASYLUMS.

ATHENS COUNTY COMMON PLEAS. SUPERINTENDENT OF ATHENS ASYLUM FOR INSANE

v.

A. J. FRAME, AUDITOR.

KNOWLES, J.

This is an application for a mandamus against A. J. Frame, Auditor of Athens County, on the petition of the Trustees of the Athens Asylum for the Insane, to compel the Auditor to draw an order to pay an account for clothing and certain incidental expenses of inmates of the Asylum from said county. The application sets out that the county of Athens is indebted to the relator in this action in the sum of $427.70 for certain incidental expenses, and for necessary clothing furnished the inmates from this county, which have been charged to its account by the Steward of the Asylum, which account is countersigned by the Superintendent and sealed with the seal of the Institution. It avers that this account was presented to the Auditor of the county for his allowance; that he was requested to draw an order on the Treasurer for the payment of same; that he refused to comply with this request, and that this is the only relief the plaintiff has in order to procure the payment of said sum, to wit: By writ of mandamus compelling him to comply with the request of the Trustees of the Asylum.

The averments in this application are that between the 14th day of February, 1880, and the 14th day of January, 1882, the Steward of said Asylum, at various times, paid incidental expenses of lunatics admitted into said Asylum from said Athens county, and for necessary clothing for them, furnished by the Steward and paid for out of the appropriation made by the State for current expenses of said Asylum the aggregate sum of $427.76, of which disbursements said Steward, duly kept a separate account duly attested and on the 14th of January, 1881, forwarded and presented to A. J. Frame, Auditor of said county, who refused to pay the same.

To this application there is a demurrer interposed by the defendant, the Auditor, in two counts: The first is, that the application does not as a whole, state facts sufficient to constitute a cause of action against the Auditor; and the second, by dividing up the claim of the relator, claims if the relator is entitled to recover anything in this proceeding then only such charges as accrued prior to the 18th of March, 1881. This question is presented to the court for the purpose of procuring the construction of certain statutes now and heretofore in force, relating to the Benevolent Institutions of the State, and especially the Lunatic Asylums of the State, as to the liability of the different counties of the State to pay for certain expenses named in the

statutes and designated as traveling, incidentals and necessary clothing, for the insane subjects in said asylums.

An examination of the accounts as presented in the application shows that it is an account of said relator against said county of Athens running through a series of months from February 14th, 1880, the date of the first charge, to January 11th, 1882, for traveling and incidental expenses, and necessary clothing furnished to inmates of said Asylum from Athens county during said time.

It is claimed by the counsel for defendant that the county is only liable for the payment of said account, especially clothing, up to March 18th, 1881, and no more.

And by counsel for the relator that the county is liable for all traveling and incidental expenses and for all necessary clothing furnished such inmates during their stay in the institution.

This brings me to what I consider the proper construction of the legislation called in question, upon the issue of law raised in this case.

The legislation upon the subject of the Benevolent Institutions of the State is general and refers to all of the benevolent institutions of the State. Sections 631 and 632 of Revised Statutes of Ohio, are found in this general legislation, subject to any exceptions or limitations therein contained, or modifications therein referred to, in subsequent legislation and the general legislation with exceptions or limitations therein contained, with legislation referred to by said general legislation as limitations are to be taken and construed together, and, if possible, so construed (if in conflict) as to be reconcilable and consistent with each other, and as a whole, section 631 of the general act provides "that all persons admitted into any institution (except as otherwise provided in chapters relating to particular institutions) shall be maintained by the State subject only to the requirement, that they shall be neatly and comfortably clothed and their traveling and incidental expenses paid by those having them in charge."

It will be seen that there are two exceptions or limitations in the above section to the general provision: 1st as to any modifications found in chapters relating to particular institutions of the State, and 2d "subject to the requirement that such inmates shall have paid traveling and incidental expenses and shall be neatly and comfortably clothed by those having them in charge." What traveling and incidental expenses are here referred to? Clearly such as have accrued prior to the admission of the patient to the asylum, for there are none after they are admitted that would be a limitation on te word maintained.

And if so, who is to pay such traveling and incidental expenses? Not the Asylum, for the Asylum has as yet no control of them; they have not yet been admitted, and the exception is, such expenses are to be paid by the party having them in charge, the officer or friend deputised to take them to the Asylum by order of the

Probate Judge. Probate Judge. And so, too, of the clothing— "they shall be neatly and comfortably clothed." When and by whom? In the language of the statute when they apply for admission, and traveling and incidental expenses paid by the party having them in charge, or themselves, not the Asylum, for up to that time the Asylum has no charge over them. Had the legislature intended to have put a further limitation on the word maintained as regards clothing they would have so enacted then and there, but if there should be any question as to the true interpretation or construction of this section in regard to this point all we have to do is to call into requisition section 632-and it is plainwhich provides that if there be a failure in any case to pay incidental and traveling expenses or furnish the necessary clothing, then the Steward or other financial officers of said institution is authorized to pay such expenses and furnish the requisite clothing and pay for the same out of the current'expense fund of the institution, he keeping a separate account of such expenses, and report the same back to the Auditor of the county from which such patients came and for whom such expenses have been paid, and the Auditor is required to pay the same.

So far then, if the county or the friends of a patient have complied with the provisions of the statutes, relating to insane persons,. as to have paid traveling and incidental expenses and furnished the patient with neat and comfortable clothing, then such patient on application is entitled to admission into the Asylum and to be maintained therein at the expense of the State and without further charge upon the county from which such patient came. Any other construction would put a limitation upon the word maintained used in the statutes, which would destroy the force and effect of the word and unauthorized by the legislation under consideration. But to go a step further. Let us see if the particular legislation which we are called upon to examine by reading Sec. 631 is such as to interfere with the above views. Sec. 700, revised statutes under head Lunatic Asylum (particular) as to this class of institutions upon the subject of maintenance enacts as follows: "All persons who have been or may hereafter be admitted into either of the Asylums for the Insane belonging to the State shall be maintained therein at the expense of the State." This section (or the part above quoted) provides that when a patient is admitted and the conditions of Sec. 631 have been complied with he shall be maintained therein by the State. There is no uncertainty or conflict in these provisions-they are in my judgment and in the view I have taken, with the reasons given therefor, consistent and plain. It seems, however, that doubts had arisen in regard to the meaning of this legislation, and that to settle any uncertainty that might arise in the construction of these statutes, the legis lature on the 18th day of March, 1881, amended Sec. 700 by inserting in the original Sec. 700 the following language: "Except as provided

in section 631 of this title of the Revised Statutes of Ohio." Reading then as Sec. 700, amended, so far as applicable to this point, as follows: "All persons who have been or may hereafter be admitted into either of the Asylums for the Insane belonging to the State shall be maintained therein at the expense of the State, except as proIvided in section 631 of this title of the Revised Statutes of Ohio."

In other words, the legislature said if there was any doubt in the minds of any person traveling the road as to who should pay the expense of maintaining the patient after he entered the institution (with traveling and incidental expenses paid-and being neatly and comfortably clothed) in the original Section 700 this amendment to Section 700 is a guide board to direct us back to section 631 and 632 to let us know what it thought was plain then and which make it more plain, if need be, by this amendment.

If any additional reasons are needed in support of the above construction a brief reference to some of the particular legislation in regard to Lunatic Asylums, as showing more clearly the intention of the Legislature, will be found in Sections 705 and 706 of this particular legislation, which provides that upon examination of a person presented to a Probate Judge on an inquisition for insanity and the finding by such Judge that the party is insane he shall order such person sent to the Asylum, order the person or officer conveying the person to the Asylum to see that the patient shall be so conveyed at the expense of the county and supplied with proper clothing to be paid for by the county, and while the Superintendent may refuse to accept such person without such clothing or non-payment of expenses-preliminary to their admission-yet Sec. 632 of the general act provides that upon failure the Steward or other financial officer of the institution is authorized to pay the same and charge it back to the county, rather than the insane person should be confined in a poor house or prison or turned loose upon the community.

And again, should the other rule of construction prevail it would leave the officers of the Asylum, especially the insane, to be the judges of the amount and kind of clothing furnished to each patient, the incidental expenses paid, and then compel the county from which, the lunatic came, to refund the same without any check upon the officers of the Asylum, or remedy in the event of gross or extravagant charges, which clearly was never intended by the legislature.

Under the view I have taken in the construction of these statutes I have reached the following conclusions:

1st. That the counties are liable for neat and comfortable clothing as provided by statute, and for all traveling and incidental expenses up to the time of the admission of the patient into the Asylum.

2d. That all expenses incurred after the admissson of the patient into the Asylum are to

The estate consisted of lands, farming utensils, household goods, live stock and money. The residuary clause is as follows: "The residue of my estate is to be distributed to the heirs on my 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 possession 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 statute 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 who 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 circunstances as would 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, her acts in paying the debts of the husband out of his money, receiving and holding the balance, and having 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 claiming, under the law, within the time allowed.

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

5. 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 thę will.

Error to the District Court of Butler County.

The first above case relates to the rights of the parties in the personal estate of John D. Smith, deceased. The second case relates to the rights of the parties to the real estate.

The facts relating to each will be stated as if there was but one case. The first case was submitted in the trial court, upon an agreed statement of facts, which is substantially as follows:

John D. Smith died April 30, 1877, testate; his will was probated May 10, 1877; John D. Smith left no issue, but left Elizabeth Smith, as his lawful wife, to whom he was married in 1839. Elizabeth Smith (the widow) died August 1, 1877, intestate and without issue. She never attempted to divide or distribute the real or personal estate of John D. Smith, in any way. William B. Millikin is the administrator of Elizabeth Smith, and Enoch D. Cracraft and the other plaintiffs are her legal heirs and distributees. P. J. B. Welliver is the administrator of John D. Smith, and Joseph Smith and the other defendants are the brothers and sisters (and representatives of deceased brother and sister) of John D. Smith.

No administration was taken out on John D. Smith's estate, until August 10, 1877, (after Elizabeth's death), when Welliver was appointed his administrator, with the will annexed. Millikin was appointed administrator of Elizabeth Smith, August 22, 1877. The debts of John D. Smith and his funeral expenses were all paid by Elizabeth Smith out of his estate. No year's

support was set off to her, but $500.00 would have been a reasonable sum for a year's support, if she was entitled to have same set off.

Besides paying his debts and funeral expenses, John D. Smith left $8,750 in money, which at his death was taken possession of by Elizabeth (his widow), and by her on May 10, 1877, de posited to her individual credit, in Second National Bank of Hamilton, where it remained at her death. It is agreed that $650.00 of said sum was her separate estate (being referred to in the will), and it is withdrawn from controversy, leaving balance of $8,100 in bank in controversy.

The balance of John D. Smith's personal estate, consisting of horses, cattle, hogs, farming utensils, household furniture, grain etc., was, at John D. Smith's death, taken possession of by the widow (Elizabeth), and retained by her until her death.

Welliver, when appointed administrator of John D. Smith, took possession of the same, and had the same appraised and sold as the property of John D. Smith, the entire proceeds being $2,359.89, (which was the reasonable value thereof), and now in hands of said Welliver as administrator. Said appraisement and sale was made against the protest of William B. Millikin, administrator of Elizabeth Smith.

Of the said grain sold was 715 bushels of corn (sold for $250.25) which was planted after the death of John D.Smith, on the real estate owned by him, and devised in his will, by a tenant to

whom, by verbal agreement, before his death, John D. Smith had rented the farm for 1877 on the shares. The plowing was done by the tenant before John D. Smith's death.

The above are all the facts material to the controversy between the above named parties, and upon the above facts, it is by agreement of all the above parties submitted to the court to decide the following questions, and to enter judgment accordingly:

I. Is P. J. B. Welliver administrator with the will annexed of John D. Smith, deceased, or is William B. Millikin, administrator of Elizabeth Smith, deceased, entitled to have possession of said personal estate, and to administer upon the same?

II. Is William B. Millikin, administrator of Elizabeth Smith, entitled to have paid to him out of said estate the sum of five hundred dollars for said year's support of said Elizabeth Smith?

III. In what manner and proportion and to whom ought said money, proceeds of sale of personal property and other personal estate, be distributed and paid after the expenses of administration have been first paid, and after payment of taxes?

The will of John D. Smith, dated April 24, 1875, is as follows:

I, John D. Smith, of Reily Township, Butler County, Ohio, make and publish this my last will and testament as follows, to wit: I direct paid as soon after my decease as possible. The that my funeral expenses, and all just debts be residue of my estate, both real and personal, that I may possess at my decease, I give and bequeath to my beloved wife, Elizabeth Smith during her lifetime; she to have full possession, management and control of the same, with the privilege of disposing of any or all the personal property for her use, together with all the proceeds of the real estate; she to have the privilege of dispos ing of six hundred and fifty dollars at her death to whomsoever she may see fit [being the amount received from her father's estate]; the residue of my estate is to be distributed to the heirs of my side of the house in such portions as she may direct by will or otherwise.

In witness, whereof, I, John D. Smith, the testator, have hereunto set my hand and seal this 24th day of April, A. D. 1875.