and fit for navigation, and agreed to pay therefor the sum of $38,820 in three payments, to wit: $20,000 in cash and the balance in two equal payments in three and six months.

The property so purchased, having been on the day of sale delivered by the lessees to the board, on May 23, the board, by proper warrant upon the state treasury, did cause the said sum of $20,000 to be paid to the lessees; but upon maturity of said deferred payments, the board neglected and refused to pay the same, or cause the same, or any part thereof, to be paid, and have hitherto so neglected and refused.

Whereupon, on this showing, and the further allegation that there is, in the treasury of the state of Ohio, subject to the order and control of said board, more than $40,000, applicable to the payment of said indebtedness, an alternative writ of mandamus, upon the relation of said lessees, has been issued by this court, commanding said board to issue its warrant to the auditor of state in favor of said relators for the amount due them (including interest) on said contract, or show cause why the same is not done.

By answer, the board of public works shows for cause why they have not complied with the command of this writ, certain matters which are sufficiently stated in the opinion of the court.

The cause is now submitted on demurrer to this answer. J. T. Holmes and George K. Nash, attorney-general, for defendant.

MCILVAINE, C. J.

In the first place, the defendants claim that, at the time the agreement was made, there was no authority or power in the board of public works to purchase dredges, boats and other implements at a price in excess of $20,000, and, therefore, the agreement to pay in excess of that sum is void. This claim is based on an act passed May 13, 1878, entitled, "An act to appropriate money to repair the public works and render them fit for navigation." By this act, in addition to tolls, fines and water-rents of the pnblic works, the sum of $30,000, from the general revenue of the state, was appropriated "for the purpose of putting said works in such state of repair as will prevent an overflow, and render them fit for use at the opening of navigation," and it was provided, that of said sum of $30,000, "that not exceeding $20,000" * # 66 may be used in leasing or purchasing the necessary dredges, and other boats, implements, tools, horses and mules, required to keep said works in repair." In this statute we find no limitation upon the power of the board in making such purchases. The limitation is solely upon the use of the appropriation from the general revenue. If necessary, any sum in excess of $20,000, to be paid for such implements, might have been taken from the tolls, fines and water-rents of the public works. So that, in this act of appropriation, there was ample provision made for the payment of the whole amount of relator's claim, provided only, that in addition to the $20,000, the receipts of tolls, fines and water-rents should prove sufficient to make up the amount.

Ample power to enter into the contract with the relat ors was conferred upon the board of public works, by the act of April 4, 1859, entitled, "An act conferring certain powers on, and prescribing certain duties of, the board of public works." Although the necessity for the exercise of the powers herein conferred was, in a great measure, suspended during the time the lessees were in possession of the public works, it was fully revived (the act not having been repealed) as soon as the board was again put in

possession of the works, under the resolution of May 11, 1878. And here it may be remarked, that the necessity and propriety of making the purchase, at the time and under the circuinstances, are not questioned; while, on the other hand, it appears that the purchase was very advantageous to the state.

In the next place, it is claimed that the funds in the treasury, subject to the control of the board, are not applicable to the payment of relator's demand. It is true that the special appropriation act of May 13, 1878, cannot now be looked to as an authority for using the funds in the treasury for such payment, as section 22 of article 2of the constitution provides, “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law; and no appropriation shall be made for a longer period than two years." But section 2 of the general appropriation act of April 15, 1880 (77 Ohio L. 254) provides, "That there is hereby appropriated from any money coming into the treasury, as receipts from the public works, the following suns, to wit: For the maintenance, repairs, compensation of superintendent, and other employes of the public works, not otherwise herein provided for, the receipts from tolls, rents, fines and other income, heretofore, and since the 15th day of November, 1879, received or hereafter arising from the use of the public works, not otherwise appropriated." The funds in the treasury sought to be reached are of this description, and we see no reason why they should not be used for the payment of relator's claim. To hold that this appropriation can be applied only to liabilities incurred after the passage of the act, would be unjust and unwarranted.

The answer further sets up, that on May 23, 1878, the contract with relators was modified by the board of public works, by the following action, as recorded upon its minutes:

"Board met. Present, Messrs. Thatcher, Schilder and Evans.

Ti e attorney-general verbally submitted his opinion, as requested yesterday, to the effect that the board could not exceed in the purchase of the boats, tools, &c., of the lessees, the sum of $20,000, appropriated for that purpose. "On motion of Mr. Evans, the following preamble and order were then adopted by a unanimous vote of the board, to wit:

“Whereas, This board, on Saturday, the 18th inst,, resolved to buy the dredges, boats, tools, &c., belonging to the lessees of the public works of this state, at the sum of $38,820, under the erroneous impression that the board could use a part of the revenue of the public works, in their purchase, in part, and

"Whereas, The attorney-general has given his opinion that no such use can be made of the revenues of the public works, under the existing laws; therefore,

66

Resolved, That the terms of said agreement to purchase be modified in this, to wit: That the board of public works will now pay to said late lessees the sum of $20,000 on account of said tools, &c., the same being the amount appropriated for that purpose, May 13, 1878, leaving the lessees to depend upon the affirmance of said contract of purchase by the general assembly, and the making of the necessary appropriation to pay the remainder of said consideration to the general assembly.

"Thereupon, on motion of Mr. Schilder, the following order was adopted, to wit:

"Ordered, That the president of this board isssue his check on the auditor of the state in favor of the lessees of the public works for $20,000, on account of the purchase

of dredges, boats, horses, tools and implements, bought of them on the 18th inst., as per schedule furnished." And it is averred that relators, with full knowledge of the above action of the board, acquiesced therein, and received the payment of said $20,000.

It is quite evident, that the sole inducement which led to the action of the board on the 23d inst., was the belief induced by the opinion of the attorney-general, that the contract of the 18th inst. was void for want of power in the board to make it, and the sole object of such action was to affirm the contract as far as was in the power of the board, leaving it to the legislature to ratify the unauthorized stipulations.

Except for this belief, which we have already shown was erroneous, no such action would have been taken by the board; and certainly any acquiescence on the part of the lessees to a modification of the contract (if any were shown) must be attributed to the same mistake. But the only fact, or act of the lessees tending to show acquiescence in a modification of the agreement of the 18th inst. was the receipt of the $20,000, after knowledge of the action of the board on the 23d. This is not sufficient to bind the lessees to such modification. The payment and receipt of the $20,000 were in strict accordance with the contract of the 18th. Plainly, there was no consideration noving to or from either party, to induce or support a modification of the contract, and, for all that appears, the relators may insist upon the original terms of the agreement.

It is also insisted by the defendants, that the claim of relators, being one against the State, interest thereon cannot be allowed.

On the other hand, it is claimed that the relators are within the terms and meaning of the statute which provides "That all creditors shall be entitled to receive interest on all money after the same shall become due, either on bond, bill, promissory note, or other instrument of writing, or contract for money or property." That the words of this statute are broad enough to embrace the claim of relators is not disputed; but it is contended that the state is not embraced within the general words of a statute, and can be held to be within the purview of statute only when so declared expressly or by necessary implication.

The doctrine seems to be, that a sovereign state, which can make and unmake laws, in prescribing general laws intends thereby to regulate the conduct of subjects only, and not its own conduct.

It is a familiar doctrine, that a state is not affected by the statute of limitation, however general its terms may

In view of these principles, we must hold that the stato, as a debtor, is not within the purview of the statute above quoted, and cannot be adjudged to pay interest upon any claim against her in the absence of a promise, expressed or implied, to do so; and it is not claimed that any such promise has been made to relators. AttorneyGeneral v. Cape Fear Navigation Co. 2 Ired. Eq. 444; Auditorial Board v. Arles, 15 Texas, 72; State v. Thompson, 5 English (Ark.) 61; 9 Opinions of Attorneys-General, 57.

It is suggested, however, that even in the absence of a statute, or an agreement, requiring the state to pay interest upon relator's clai:n, that damages in place of interest, might be awarded, under section 6753 of the revised statutes, which provides, "If judgment be given for the plaintiff, the relator may recover damages which he has sustained, to be ascertained by the court, or a jury, or by a referee, or master, as in a civil action." This section certainly does not contemplate an award of damages against the state, in whose name alone the writ of mandamus can be prosecuted. And to assess damages in this case to be paid out of moneys in the treasury belonging to the state, would be in effect an assessment against the state. And to asses them against the members of the board of public works would be unjust, for several reasons: 1st. The members now composing the board, and sued, are not the same members who composed the board during the greater part of the time during which payment has been delayed. 2d. The delay has been occasioned by an honest conviction that there was no authority in the board to make payment.

If the relators have been injured by delay in making payment, they can look only to the general assembly for redress.

Peremptory writ awarded.
[This case will appear in 36 O. S.]

A SOLICITOR STRUCK OFF THE ROLLS.

"In the Queen's Bench Division, on Saturday the 21st inst., an application was made, at the instance of the Incorporated Law Society, to strike William Henry James Pook, solicitor, of Greenwich, off the rolls for misconduct. He had received for his client a considerable sum of money-about £400-for payment to his creditors; and though he had, with his client's subsequent assent, applied part of the money to the payment of a debt due to himself, and had also

lyn v. Stone, 28 Miss. 753. Upon the same principle, it has been held, that a statute providing that "costs shall follow the event of every action or petition," does not apply to a party prevailing against the state even in a civil cause. State v. Kinne, 41 N. H. 238. Indeed, the doctrine of the common law expressed in the maxim, "The king is not bound by any statute, if he be not expressly named to be so bound" (Broom Leg. Max. 51), applies to states in this country as well. Moreover, upon the same principle rests the well-settled doctrine that a state is not liable to be sued at the instance of a citizen. Not because a citizen may not have a just claim against the state or may not suffer injury at the hands of the state; but because it must be assumed that the state will ever be ready and willing to act justly toward its citizens in the absence of statutes or the intervention of courts. Coster v. Mayor, 43 N. Y. 399.

creditors, he had applied the larger portion to his own use. But he had, since these proceedings, made full restitution. Lord Coleridge said that he and his brother Bowen, having taken time to consider the case, had come to the conclusion that there was nothing to mitigate the sentence they felt compelled to pronounce. It was obvious that the restitution so recently made was made under pressure and from fear, and could not be taken into account. He was a person clothed with a character of exceptional responsibility, and invested by the court itself with powers which might be abused. He was the officer of the court, and was accredited to the world by the court itself, and in that character he was intrusted with the confidence of clients in matters often of the most delicate and im

portant nature. Honor and honesty, therefore, were of the very essence of the character of a solicitor; and if a person showed by his conduct that he was unfit to exercise those exceptional with which he was entrusted, the court powers had no alternative but to take those powers from him. Sorry as they were, therefore, to have to take such a course, they had no alternative but to order that Mr. Pook's name be struck off the rolls.-Law Journal, London, May 28, 1881.

Infant-Injury to while on the Track—Question of Contributory Negligence.--Where a child two years old strays away from his home, without the knowledge or consent of his parents, and goes upon a railroad track, which is about one hundred feet from his home, and within three minutes after leaving his home he is injured by a car belonging to the railroad company, running over him. Held, that it cannot be said, as a matter of law, that the failure of the parents to keep the child away from the railroad track, was per se culpable negligence contributing to the injury. Smith v. Atchison, Topeka & Santa Fe Railroad Co., 25 Kans.

Where a railroad track is constructed in a populous neighborhood, near a city, and children and others often go upon the track, and a portion of the track has a steep grade down which cars.will run with great force when the brakes are loosened; and the persons operating the road loosen the brakes of a car loaded with coal, and let it run down this steep grade, without any person being on the car, or any means of stopping it, and without first looking to see whether the track was clear, or whether any person was on the track or not; and a child, who was on the track, was run over and injured; and there is a conflict in the evidence as to whether the child could have been seen by the persons operating the road, before they loosened the brakes. Held, that the court cannot say, as a matter of law, that the persons operating the road were not guilty of negligence; but it is a question of fact which should be submitted to the jury.

Where a railroad company owns a switch track, constructed from the main track to a coal shaft belonging to a mining company; and 'the railroad company furnishes cars to this mining company to be loaded with coal, and when loaded, permits the mining company to loosen the brakes of the cars so that the cars will run down the steep grade of the switch track to a point where the track is level; and the mining company after loading a certain car, negligently loosens the brakes thereof and allows the cars to run down the steep grade of the switch track, and over a child, and thereby injures it. Held, that the railroad company is responsible for the injury.

Master and Servant.-Action for Loss of Service of Daughter.-Exemplary Damages.-Evidence of Defendant's Property.-A father may recover for loss of service of his infant daughter, caused by her being gotten with an illegitimate child, notwithstanding she was not at the time actually in the service of the father (but in that of the defendant), if he still retained the legal right to reclaim such service.

While the cause of action in such a case is technically the loss of service, the jury are not confined to the actua! pecuniary loss, but may award exemplary or punitory damages; and evidence is admissible to show the defendant's pecuniary condition.

It is no objection to the maintenance of an action for seducing the plaintiff's daughter that defendant procured the sexual intercourse by force. Lavery v. Crooks. Supreme Court of Wisconsin.

Partnership.-Bank Deposit in the Name of One partner.- Use of Firm Name by Surviving Partner.-Partnership of Agents.-Where one of two partners carrying on business in his own name deposits moneys of the firm in his own name in bank, such funds belonging to the firm, the other partner will have the right to change the account during the life of the partner in whose name the deposit was made, and place it to the credit of the firm account, and, after his death, to check it out as surviving partner. But if the same was the private means of the partner so depositing, the other will have no power to control it or check it out during the life of the depositor, or after his death.

A surviving partner has the right to use the firm name in which to transact his business. A check drawn on a bank by him, either in the firm name or in his own name as surviving partner, when paid, will protect the bank.

Where a person engaged as an agent in the sale of manufactured articles on a commission, forms a partnership with another, and the firm continues the business, it will be a continuance of the agency, not only to sell, but also to collect for articles previously sold, for the principal. And such money, when collected, over and above the commissions allowed, belongs to the principal or original owner, and does not become the property of the agents selling. The Commercial National Bank v. Proctor. Supreme Court of Illinois.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Sept. 7, 1881.

1151. John B. Jones v. Franklin Insurance Co. Frror to the District Court of Licking County. C. H. Kibler for plaintiff; J. Buckingham for defendant.

1152. J. B. Jones v. Clara Conley. Error to the District Court of Licking County. G. Atherton and J. B. Jones for plaintifl'; Charles Follett, & Son for defendant.

1153. William Campbell v. Ensley D. G. Campbell. Error to to the District Court of Licking County. C. H. Kibler for plaintiff.

1154. Elisha Wilkinson et al. v. Commissioners of Preble County. Error to the District Court of Preble County. Robert Miller and M. L. Holt for plaintiff'; Foos & Fisher and Thomas Millikin for defendants.

1155. Theodore W. Moore v. Wm. H. Given. Erro to the District Court of Muskingum County. T. J. Taylor for plaintiff.

1156. Plympton J. Liles v. Jacob J. Gaster. Error to the District Court of Wyandot County. John D. Sears for plaintiff; McKelly & Hare for defendant.

1157. Edward B. Clark et al. v. Maria McDonald. Error to the District Court of Ross County. Hall & Bostwick for plaintiff.

1158. John Rice v. George Rice et al. Error to the District Court of Morrow County. Olds & Dickey for plaintiff; H. L. Beebe for defendants.

1159. A. W. Thompson et al. v. Thomas Massie et al. Error to the District Court of Ross County. P. C. Smith and Vanmeter & S. for plaintiffs; McClintick & Smith for defendants.

1160. Frank J. Bonewitz v. Van Wert County Bank et al. Error to the District Court of Van Wert County. W. J. Beers for plaintiff; I. N. Alexander for defendants. 1161. Theresa Eisenberg v. Marx Albert et al. Error to the District Court of Belmont County. J. H. Collins for plaintiff.

1162. The Baltimore & Ohio R. R. Co. v. Ira Lewis et al. Error to the District Court of Belmont County. J. H. Collins for plaintiff.

Ohio Law Journal.

COLUMBUS, OHIO, : : : SEPT. 15, 1881.

PERSONAL.

-Thomas H. Kelley, of the Cincinnati Bar, was in the city Tuesday of this week and favored the LAW JOURNAL office with a call.

our sincerest sympathy, for we know how greatly he will be missed.

THE Supreme Court of Ohio will convene September 26.

1

THE time for business in our County Courts is at hand, but so great is the power of politics over law and justice, that Courts must

stay at Lake Chautauqua, where the pure air and pleasant surroundings must surely agree with him, judging from his hale and hearty looks.

-W. P. Richardson, Esq., of Marietta, stopped in Columbus a short time, the first of the week, on his way home from a summer's sojourn in the West. Mr. Richardson had some business with the Supreme Court, which he transacted with his Honor, Judge Okey, who is the only resident Justice of the Court to answer calls made here in vacation. The LAW JOURNAL was pleased to meet Brother Richardson.

-Hon. John McClure, Ex-Chief Justice of the Supreme Court of Arkansas, spent several days in Columbus, last week, visiting old friends. Judge McClure is an old Ohio man, who was Chief Justice of his adopted State (Arkansas) at the time of the Brooks-Baxter excitement, a few years ago, when the Court was called upon to decide as to who was, in law, the Governor. The Judge now being clear of official duties, is enjoying the luxury of a handsome practice in the law, which his well-known ability righteously brings forth.

OBITUARY.

Willis W. Powers, Esq., of the Mahoning County Bar, died last week, and was buried at Youngstown on Saturday.

Although young in years he was old and well learned in the true principles of manhood, honor and firm friendship. We were boys together when he attended College in Pennsylvania. We were together when he was a law student at Pittsburgh. We gave him. a hearty grasp of the hand, and bid him God speed when, crowned with the title of attorney and counselor, he entered upon a bright professional career. Within the last year he was admitted to the Ohio bar and located at Youngstown, where his prospects were most flattering. His love of home and family was one of the admirable characteristics of his affectionate nature, and we know how well he was loved in return by the members of that bright home circle, within which we were often gathered together in days past. With the members of his family, we mourn their loss, and in their affliction they have

channels of justice to remain closed until after the election.

We have received the following queries from subscribers:

No. 1. A person is arrested for the violation of an ordinance of a village. The ordinance does not make imprisonment a part of the punishment, but imposes a penalty not exceeding fifty dollars. The accused demands a jury trial.

There is another ordinance of the village providing for impaneling a jury "in cases where the party is entitled to trial by jury." Would the accused in this case, under the Constitution, Art. 1, 10, and the Revised Statutes §§ 1823 to 1830, and § 1839, be entitled to a trial by jury?

No. 2. Has any Court decided that bees kept in proximity to the dwelling house of another are a nuisance before real injury is done by them? Would an injunction be granted to restrain the keeping of the animals?

"Step by step," reads the French proverb, "one goes very far." "Nothing is impossible," says Mirebeau, "to a man who can and will. This is the only rule of success." "Have you ever entered a cottage, or traveled in a coach; ever talked with a peasant in a field, or loitered with a mechanic at the loom?" asked Sir Edward Bulwer Lytton," without finding that each of these men has a talent you have not?”

THE PUNISHMENT OF ATTEMPTS AND THE DEFENCE OF INSANITY IN CAPITAL CASES.

The recent attempt upon the life of the President has naturally attracted attention to the state of the criminal laws of the country with reference to the punishment of the crime committed and the effect of the defence of insanity. That there should be, as there clearly is, general dissatisfaction with the law as it stands upon these points is natural, and no time could be fitter than the present for the consideration of such matters.

The law regulating the punishment of attempts to commit crime is, of course, chiefly statutory; but all statutes, and the rules when the offence attempted is not statutory, agree in affixing a lighter punishment to the attempt than to the completed crime. This distinction seems neither logical nor sensible. Much discussion has recently been had over the proper definition of an "attempt," in which the late Chief Justice of England, the authors of the proposed criminal code of New York, and numerous other persons figure; but the one point here material, and which is certainly undisputed, is that an attempt only fails of being a crime by the operation of some cause outside of the act or control of the criminal; that he has done all that he could, with the intent of committing a given offence, but that his endeavor is rendered ineffectual in spite of himself.

Now it does not seem, on any just theory of crimes and punishment, that such failure should effect the position of the criminal. The theory of punishment for crime is twofold. In crimes where the penalty is not death it is designed to deter the criminal from repeating the offence for which the punishment is imposed, and to deter others, by the example of that punishment, from committing similar offenses. In capital cases, while the deterrent effect of the example is certainly one element, another, and an equally important one, is the protection of society by the destruction of one whose existence is a constant menace to its members.

In either view of the case, and whatever the punishment, can these reasons for enforcing it be less potent or effective in the case of an attempt than in that of a completed crime? To take the present case: the criminal, with the design of committing murder, does an act which is calculated to produce that effect, and which under ordinary circumstances might do so. The victim, being a man of strong constitution, carefully treated, and supplied with the best medical advice, recovers from the effect of the injuries received. Does this in the mind of any one alter the criminal's guilt? Is he not equally dangerous to society? Or if he does not deserve the extreme penalty of the law if his victim recovers, does he any more deserve it because, owing to unskillful treatment or a feeble body, he dies? The question of the deterrent effect of his punish

ment on others is immaterial here, because it may be presumed that any punishment will exercise some such effect, and because no one attempts a crime without intending its success.

On the other ground, that of the protection of society, it is as clear as anything can be that the attempt deserves the same punishment as the crime. The theory here clearly is, that, in the case of capital offences, the existence of the criminal is a danger to society, which must be removed by his death; and in other cases, that one who is so depraved and dangerous as to commit any given offence needs to have his dangerous propensities restrained by the punishment attached to its commission by the law. Now these views depend solely on the character of the criminal, and his commission of the act is only evidence of such character. It is selected as the only safe guide by which a government can proceed in administering punishment, as it is the only conclusive proof of that tendency which is punished as reprehensible.

But an attempt is as conclusive evidence as is the committed crime. If an assassin shoots, stabs, or otherwise assaults another with evident intent to take his life, the death of the victim does not go one step farther than does the fact of the attempt, to prove the dangerous character of his assailant. Nor in other cases of crime does the accidental disappointment of the perpetrator take away from the proof of his criminal disposition which his success would furnish.

There can be no just or rational system of punishment for crime that is not based on the theory of an evil and dangerous disposition in the criminal, which is to be restrained or rendered impotent; and on any such system there can be no reasonable distinction between the punishment of the complete offence and the punishment of the attempt to commit it.

The second point for consideration is the defence of insanity in capital cases. This defence has been in such frequent use of late years as to bring it much into discredit, and very slight evidence has been sufficient to establish it. The States may be divided into three classes, according to the rule of evidence prevailing on this point, which varies greatly. In some States, the rule is that a reasonable doubt of the sanity of the accused is sufficient for an acquittal; in others, the prisoner must establish his insanity by a preponderance of evidence; while in New Jersey the late Chief Justice Hornblower laid down the rule that the accused must establish his insanity in the same way that the State must establish his guilt, i.e. beyond a reasonable doubt.

The reason for this difference is easily seen; the first view being based on the general presumption of innocence, and the latter two on the technical theory of a plea of confession and avoidance. The syllogism in the first case is this:

A reasonable doubt of guilt must acquit; A reasonable doubt of sanity is a reasonable doubt of guilt; ergo,