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Warren W. Hole, Salem.
OPENING PRIVATE LETTERS.
The following graduates of the Cincinnati Law School were admitted to practice by the Supreme Court:
R. W. E. Davis, Cincinnati.
The following named gentlemen were examined last week, and on Wednesday admitted to practice :
James W. Drouillard, Portsmouth.
In United States v. McCready, 11 Fed. Rep. 225, where a letter carrier left a letter in the hall of the residence of the person to whom it was addressed, and the defendant opened it with intent to pry into the business and secrets of the owner of the letter, held, to be a violation of section 3892 of the Revised Statutes, and that the protection of a letter so situated is within the constitutional power of Congress. The statute is as follows: “Any person who shall take any letter, postal card, or packet, although it does not contain any article of value or evidence thereof, out of a postoffice or branch post-office, or from a letter or mail carrier, or which has been in any post-office or branch post-office, or in the custody of any letter or mail carrier before it has been delivered to the person to whom it was directed, with a design to obstruct the correspondence or to pry into the business or secrets of another, or shall secrete, embezzle, or destroy the same, shall, for every such offense, be punishable by a fine of not more than $500, or by imprisonment at hard labor for not more than one year, or both.” The court, Hammond, D. J., said: “But it is insisted for the defendant that these facts do not constitute a violation of the statute, because, as the letter was taken by the defendant after its delivery by the letter carrier at a place designated by Lettie Amis for the delivery of her mail, it had in law been delivered, within the intent and meaning of the aet; and that if a proper construction of its language embraces an offense committed after the letter had passed from the actual control of the port-office officials and
agents, and before manual delivery to the per- case.” The jury found the prisoner guilty, and son to whom it was directed, the enactment is sentence was deferred. to that extent beyond the legislative power of There is no doubt that, as Patterson, J., said in Congress. * * * The system of mail deliv- R. v. Cruse, 7 C. & P., 541, “although drunkenery in cities by letter carriers is of comparatively ness is no excuse for any crime, yet it is often of modern date, and is constantly increasing with very great importance in cases where it is a the growth and development of the country. It question of intention.” And in R. v. Thomas, 7 necessarily affords greater and more abundant C. & P., 817, Parke, B., in summing up to the opportunity for the commission of offenses like jury, said that “where the question is whether those charged in this case than the older method words have been uttered with a deliberate purof delivery at the post-office. Letters are left in pose, or merely low and idle expressions, the private boxes, on tables, counters, and under drunkenness of the person uttering them is doors, and if the system is to be efficient they proper to be considered.”
proper to be considered." This comes very close must be protected in that situation. Indeed,
to the recent case, and the direction given to the the postmasters general have for years, by their jury by Mr. Justice Chitty corresponds with arprinted regulations, urged the public to ‘provide, ticle 29th of Mr. Justice Stephens Digest of in cities where letter carriers are employed, Criminal law, where it is laid down that if the letter-boxes at places of business or private resi- existence of a specific intention is essential to dences, thereby saving much delay in the deliv- the commission of a crime, the fact that an ofery of mail matter.' For the above reason, it fender was drunk when he did the act which it
seems to me that section 3892 should receive a coupled with that
intention, would constitute
liberal construction by the courts. The evil to such crime, should be taken into account by the be remedied and guarded against is so easy of jury in deciding whether he had that intention. accomplishment. it could not under an opposite -Solicitor's Journal. or different construction be prevented by the existing statute. It is ample in its letter and
MEMOIRS. spirit, and was no doubt intended to protect the seals of all correspondence through the mails un- We reproduce the following from one of our til actual manual delivery to the party addressed, foreign exchanges, believing that it excels anyor his authorized agent. The courts should, in
thing that was ever said or written about any my judgment, effectuate that intention by so construing it, and not devolve the duty of afford- member of the American Bench or Bar. It cering the required protection on the States upon tainly will not be adopted as a model here : any theory that there is a want of constitutional JUSTICE ONVOCOOL CHUNDER MOOKERJEE.-The power in Congress to do it. It seems an unnec- Hindoo English author of a “Memoir of the late essary separation of the subject matter to so di- Honorable Justice Onoocool Chunder Mookerjee" vide the duty of protection.” - Albany Law Journal. thus describes the merits of the subject of the
memoir before his elevation to the Bench : DRUNKENNESS AND CRIME.
"Since he joined the native Bar down adinfinem of his career as a pleader, he had won a uniform
way of pleading. He made no garish of words, A curious defense was raised in a prosecution never made his sentences long when he could for perjury at the Manchester Assizes recently, express his thoughts in small ones. Never he before Mr. Justice Chitty. It was alleged that counter-changed strong words with the pleaders the prisoner at the time of giving evidence was or barristers of the other party. In defeating or under the influence of drink, and incapable of conducting a case his temper was never incaljudging clearly the effect of what he said. He escent and hazy. He well understood the interhead heard several statements that he believed est of his client, and never ceased to tussle for it to be untrue, and got into the box and denied until he was fushed with success, or until the them wholesale. It was argued that the pris- shafts of his arguments made his quiver void. oner, being in the condition described, was not He was never seen to illude or trespass upon the responsible for what he was saying, and had not time of court with fiddle-faddle arguments to committed "wilful” and “corrupt” perjury prove his wits going a-wool-gathering, but what The learned judge directed the jury "that drunk- he said was nude truth, based upon jus civile, let enness was no excuse in a case of this kind, non scripta, les scripta, etc., and relative to his case unless the condition of a man in regard to and in homo-geneity to the subject matter he drunkenness when he was giving evidence in discussed, and always true to the points he aran open court might have some bearing upon gued. He made no quotation having no bearing the point whether what he said was said deliber- to his case, but cited such acts, clauses and preately and intentionally. It would be a most cedents that have a direct affinity to his case, or dangerous thing to allow a man to get off in a the subject-matter of his argument. By-the-by, case of this kind on the ground of drunkenness, I should not here omit to mention that he had but if the jury was satisfied that the prisoner one peculiarity in his pleading which I have was in such a state of mind at the time in ques- observed very minutely. Having first expoundtion that substantially he was not intending to ed before the court the anatomy of his case, he deceive, they might take a merciful view of the then launched out on the relative position of his
SUPREME COURT RECORD.
(New cases filed since last report, up to June 13, 1882.)
client with that of the other, pointing out the quidproquo or bolstering up the decision of the lower court with his sapience and legal acumen and cognoscence, waiting with quietude to see which side the court takes in favorable consideration, knuckling to the arguments of the court, and then inducing it gradually to his favor, giving thereby no offense to the court."
DUTIES OF JURIES.
The refractory jury at Bristol, who refused to take their law from the judge, and desired to be furnished with a copy of the report of R. v. Negus, L. R., 2 C. C., 34, were probably unaware that they were guilty of a most unconstitutional usurpation, and a grave breach of their duty. If instead of remitting them with a mild lecture to the bosoms of their families, Lord Coleridge had detained them while he read the observations of one of his predecessors, they would probably have understood more clearly the heinous nature of their offense. “The fundamental definition of trial by jury," said Lord Mansfield in R. v. Dean of St. Asaph, 21 How. State Trials. 1039, depends upon the universal maxim ad quæstionem juris non respondent juratores ; ad quæstionem facti non respondent judices," and he added, “the constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know, and are not presumed to know, the law; they are not sworn to decide the law; they are not required to decide the law. It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.”
It appears that in the United States the question was once raised whether this rule applies in criminal cases, but it was unhesitatingly decided that it did ; and Mr Justice Story, in one of the finest of his judgments, laid it down that it is "the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law as it is laid down by the court. This is the right of every citizen, and it is his only protection. * *
* * Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land, and not by the law as a jury may understand it, or choose, from wantonness, ignorance, or accidental mistake, to interpret it." United States v. Battiste, 2 Sumn., 243. It would be difficult to state more forcibly the reasons why, in criminal cases, juries should not follow the example of the Bristol wiseacr. S.-Solicitors' Journal.
1199. John Goodwin et al v. Commissioners of Van Wert County. Error to the District Court of Van Wert County. I. N. Alexander and J. L. Price for plaintiffs ; G. M. Saltzgaber for defendants.
.. 1200. Waldemar Otis v. Henry M. Claflin. Error to the District Court of Cuyahoga County. W. C. McFarland and R. E. Knight for plaintiff.
1201. Margaret I. Jones et al v. Eliza A. Hines et al. Error to the District Court of Gallia County. W. H.C. Ecker, David Davis and Russell & Russell for plaintiffs ; S. A. Nash for defeudants.
1202. Iron Railroad Company v. Jacob Fink. Error to the District Court of Lawrence County. Neil & Cherrington and W. A. Hutchins for plaintiff; Ralph Leete for defendant.
1203. Cow Run Iron Tank Co. v. James D. Lehmer. Error-Reserved in the District Court of Washington County. Sibley, Ewart & Sands for plaintiff ; Loomis, Alban & Guthrie for defendant,
1204. Martin Landon v. John S. Payne. Error to the District Court of Licking County. Chas. Follett & Son for plaintiff.
1205. Willis Robbins v. Sylvester Ciemings adm'r et al. Error to the District Court of Licking County. Chas. Follett & Son for plaintiff; J. R. Davis for defendants.
1206. Kerosene Lamp Heater Co. v. Monitor Oil Stove Co. Error to the District Court of Cuyalioga County. Foster & Carpenter for plaintiff; R. T. Paine for defendant.
1207. Pittsburgh, Cincinnati & St. Louis Ry. Co. v. William T. Leech adm'r. Error to the District Court of Jefferson County. J. Dunbar for plaintiff; W. P. Hays for defendant.
1208. Mary Fanning v. Hibernia Insurance Company. Arnold Green for plaintiff; W. S. Kerruish for defendant.
1209. I. N. Topliff v. William Harrison. Error to the District Court of Cuyahoga County. Arnold Green for plaintiff; Wilson & šykora for defendant.
1210. John Rathburn et al. Error to the District Court of Clarke County. J. K. Mower, F. C. Goode and Harrison Olds & Marsh for plaintiffs.
1211. Joseph A. Treat et al v. Ransom Cole exr. Error to the District Court of Summit County, N. W. Goodhue and John L. Means for plaintiffs ; Kobler & Sadler for defendant.
1212. Nimsila Coal Co. v. Patrick McGuire. Error to the District Court of Summit County. Green & Robinson for plaintiff ; J. A. Kohler for defendant.
1213. In the matter of the assignment of Cornelius Nowkirk, Jobn H. Schneider assignee. C. W. Coates and C. R. Sanders attorneys.
1214. David Banker v. Lucy Shepherd et al. Error to the District Court of Butler County. Morey, Andrews & Moroy for plaintiff; Thos. Millikin and Doty & Todhunter for defendants.
1215. Joseph S. Skerritt et al v. The First Presbyterian Society in Chillicothe. Error to the District Court of Ross County. L. Frend for plaintiffs.
1216. The State of Ohio ex rel Geo. K. Nash, Att'y General v. Andrew Baughman et al. Que warranto. Attorney General Nash for the State.
1217. Morris Cadwallader v. Julia A. Clifinger et al. Error to the District Court of Delaware County. Powell & Ricketts for plaintiff.
1218. Charles A. McElroy, Executor r. John McElroy. Error to the District Court of Delaware County. Powell & Ricketts and Fulton for plaintiff.
1219. William Miller v. L. D. Warper et al. Error to the District Court of Champaign County. W. J. Gilmore and T. J. Frank for plaintii.
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.
Tuesday, June, 13, 1882. 117. Robert R. Hainilton et al. v. James S. Rodgors ot al. Error to tbe District Court of Lawrenco County.
By his will, R. dovised his wholo estate, consisting privicipally of personal property, to trustoos with directions to pay cortain annuities out of the income of tho estate and after the “ final cessation" of said annuities, to distributo the estate among certain children and grandchildren of the testator, thon living, and tho hoiry of the body of those decoased, and, in default of such heirs, thois brothers and sisters. Held: 1st. That no stato vosts in tho boneficiarios undor the will, until the time for distribution as fixed by the terms of tho will. 2nd. The “tinal cousations of annuitios montioned in the will takes place oither upon the death of all the annuitants, or upon the surrender or release of their annuitios. 3rd. The trustoes have no powor undor the will to purchase in the annuities, and the inero fact that the annuitants declare that they aro willing to rolease their annuities (but not having done so), upon pay. ment to them of a sum in gross, will not authorize the court to order a distribution of the estate, and to decree the payment of such gross sums out of the funds of the estate.
2. The act of Feb. 27, 1846, “ rogulating suits by and against companies and partners," is. & C. 1138), applies only to unincorporated companios. Neither corporations de jure por de facto aro within its provisions; and an action cannot bo nalutained under the act, to chargo the stockholders with the paymont of a judgment against the corporation.
3. Corporations ile fucto and dlc jure stand on the same footing as respocts thicir liability to croditors; and the liability of the stockhollors of the fornier, wlicthor aris. ing by statuto or un stock-subscription, may lo enforced for tho benefit of croditors, tho samo us tho liability of tho lattor.
Judgment roversod and petition dismissed.
No 1181. Daniol (atvir v. Moses (i. Waterson, Treas. urer of Cuyaloga ('ount;. Error to tho Court of Common Pleas of cuyuhoga County. Reservod in the District Court
The act of April 5, 1882, "moro effoctually to provide against tho oviss rosulting from the traffic iu intoxicating liquors" (79 Ohiv Laws, 00), having boon adjudged unconstitutional, a porson ongiged in such trafic, who paid, undor protost, into tho county treasury, the sun required of, a dealor in liquors by the torms of the act, may maintain an action against the trousurer tu revover back the sum so paid.
No. 40. Wm. 11. Crabill, Executor of N. Marsh, deceasod, v. Nancy Marsh. Error to the District Court of Clarko County Judgments of district and common pleas courts rovorsed ; demurror to tho 2nd defense overruled, and causo romanded for further proceedings. The case will be reportod heroafter.
No. 729. William Jumper v. Isabolla Day, Error to the District Court of Putnam Count;. Dismissed at costs of plaintiff' in orror, by agrooinont of parties.
No. 730. William Jumper v. Isabella Day. Error to the District Court of Putnam County. Disinissed at costs of plaintiff' in error, by agreement of parties.
No. 1045. The State of Ohio on relation of tho Attor. ney Genoral v. Middleburgb Mutual Aid and Lifo Association. Quo warranto.. Judginont of ouster from the franchiso to bo u corporation. To bo reported hereafter.
No. 1047. The Stato of Ohio on the relation of Attorney Goneral v. Tho Mutual Life Association of Ancrica. Quo warranto. Judgment of ouster from the franchise to be a corporation. To bo reported hercaftor.
No. 1118. Jacob Ridonour v. Tho Stato of Ohio. Error to the Court of Common Pleas of Butler County. Judgmont allirmed. To be reportod hereafter.
MOTION DOCKET. 104. John Goodwiu ot al. v, Commissionors of Van Wert County. Motion to dispenso with printing bill of exceptions in cause No. 1199 on tho Goneral Docket. Motion overruled, unless tho plaintiff in orror waive the errors assignod on the bill of oxcoptions.
973. Ohio on relation of Joseph Turnoy, State Treasurer, v. Luko A. Staley, Treasurer of Hamilton County. In Mandamus.
McILVAINE, J. Held: 1. Proceedings by mandamus, on the relation of the Treasurer of State, will lie to compel the treasurer of a county to transfer to the stato treasury the state's proportion of taxes collected by such county treasuror.
2. A potition for a writ of mandamus in such case, which shows the collection of such taxes by tho county treasurer, is not dofectivo for want of an averment that the taxos 80 collectod remain in the county treasury subject to the command of the writ.
3. Under soction 1043 of Revised Statutos, as amended April 19, 1881 (78 Obio L. 226), tho amount of taxes for which the treasurer stands charged, is the whole amount of taxes lovied on the duplicate, less the amount returned delinquent and the collection feos allowed the treasurer.
4. The amount of money in the treasury, for which the treasurer stands charged, cannot bo increasod or diminished by the exerciso of the authority conferred on the auditor by said section to corroct "any error which may have occurred in tho apportionment of taxos at any previous settlement."
5. In obedience to a writ commanding a county treas. urer to pay into the stato treasury a balance due the state on its portion of taxes collected by the county treasurer, and for which no provision has been made by the County Auditor in his apportionment of taxes, any excess of money in the treasury over the sums apportioned to other funds for which taxes were levied, inay be used by the treasurer in making such payment.
Demurror to 1st and 4th dofeuses sustained.
34. Charles W. Rowland ot al. v. The Meader Furniture Company. Error to the Superior Court of Cincinnati. WHITE, J., Held:
1. Where a corporation de facto, in a proceeding in quo warranto, bas been ousted from the franchise of being a corporation, such ouster is no defense to a suit by a creditor against stockholders, to enforce payment of their stock subscriptions. Gaff v. Flesber, decided by tho Com puission, (33 Odio S. 115, 453), approved and followed.
105. Philip H. Kumler, city Solicitor of Cincinnati e. The City of Cincinnati ot al. Motion to tako cause No. 721 of the General Docket out of its ordor for hearing. Motion granted.
107. Walter Dixon v. J. D. Henry et al. Motion to dismiss cause No. 780 on the General Dockot for want of printed record. Motion sustained.
108. Lemuel McMannoss, Adm'r, v. Edwin Boutwell. Motion to extend time for filing printed record in cause No. 1109 of the General Docket. Motion granted and timo oxtended to July 15, 1882.
109. Georgo Allred v. The Stato of Ohio. Motion for leavo to tile a petition in orror to tho Court of Common Pleas of Hainilton County. Motion overrulod.
110. Mary Fanning v. Hibernia Insurance Company. Motion to advance cause 1208 to its original place on the General Docket. Motion Granted. Motion for a supersedeas overruled on the ground that wbatever relief the plaintiff is entitled to, may he had under section 6718 of Revised Statutes.
111. Warren Wilder v. The Commissioners of Hamil. ton County. Motion to dispense with printing in this cause on the General Dockot.: Motion granted.
Olio Law Journal.
the State free of charge; and other folks to pay one dollar and seventy five cents per volume, for
the volumes bought by them. COLUMBUS, OHIO,
JUNE 22, 1882.
The bid of H. W. Derby was decided by Mr. The Ohio STATE BAR AssociATION which was
Nash to be the lower and we believe it has been adjourned to re-convene at Cincinnati July 5th, accepted. 1882, is notified that the meeting of this year has
In 1902 the contract will be re-let for another been postponed until the 27th of December.
term of years. We promise to keep our readers This is announced from Athens, Ohio, as the posted as to who gets the job next time. action of the Executive Committee of which Gen. C. H. Grosvenor is Chairman and L.J. Critchfield
Pleading* Parties and Forms, under the Code. By
('lement Bates Esq., of the Cincinnati Bar. upon the old date. The reaction following the Christmas festivities will prove as disastrous, we
In No. 3 of vol. 2 of this paper the first volume fear, and will interfere as seriously with a full
of Mr. Bates' work was noticed at length. What attendance as the enervating indulgence in 4th
was then said concerning the general plan and of-July-spread-eagleism, would have done. The purpose of the book applies with equal force to following is the official notice:
the second volume. It is a thorough and well ATHENS, JUNE 16, 1882.
arranged digest of statute and case law in Ohio To the Members of the State Bar Association :
and of pertinent citation of authorities in those Believing that the annual meeting of the As
states where code practice obtains. sociation at Cincinnati on July 5, prox., will fail
The labor in volved in the preparation of the to bring together as large an attendance as is book will be appreciated when it is stated that desirable, by reason of the weather, the condition over eight thousand authorities on pleadings and of the courts, the absence of members, and other parties are digested, being gathered from twentyreasons not necessary to be given in detail, the Ex
five Code States and Territories. These authori. ecutive Committee, by a nearly unanimous vote has postponed said meeting till December 27,
ties are cited, not piled up as is the manner of too 1882, at which time it will be held at Cincinnati many law writers, and the manner of the citation or Columbus, as may be hereafter designated. leads to the conclusion that the case cited has a By order of the Executive Committee.
direct bearing upon the point sought to be made C. H. GROSVENOR, Ch'n.
. L. J. CRITCHFIELD, Sec'y.
The profession in Ohio has now two excellent
works on Code pleading, Green & Kelly's in one THE OHIO STATE REPORTS,
volume, and Bates, in two volumes; and one or We have been informed that bids for the pub- the other ought to be—and will be, in the hands lication of the State reports for the term of twenty of every lawyer in the state. years have been advertised for, and that in re
The price is $12.00 for the two volumes and is sponse thereto, two bids have come in which
sent post paid on receipt of that sum. The merequired the intervention of the Attorney Gen- chanical execution of the book is fully up to the eral to determine which should be accepted. We
usual excellence of the publications of Robt. never saw the advertisement for bids and did not
Clarke & Co., Cincinnati, Ohio. know that bidding was in progress until after all was over. We do know however that lower bids than either of those offered were waiting the AMERICAN DECISIONS, VOL. XXXIV. opportunity to be presented. That, howeve ris
We have heretofore compared the magniof no consequence now.
tude of the undertaking of which this volune The bids received were: 1st. By H. W. Derby, of Columbus, as follows:
is one added step, to the building of a TransThree hundred and fifty volumes to the State at
Continental line of railway. As the work 924 cents per volume. Those purchased by the
progresses we discover a similitude more perprofession to be at one dollar and fifty oents per tinent, in the character of the undertaking itvolume.
self. Each succeeding volume is an added 2nd. By Robt. Clarke & Co., of Cincinnati, as section to a great causeway of legal know). follows: Three hundred and fifty volumes to edge, which, when completed, will make per