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SUPREME COURT OF OHIO.

JANUARY TERM, 1882.

Hon. JOHN W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

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. and hereby undertake &c, the omission of such name does not affect the validity of the undertaking or the obligation of the surety. 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 Cuyahoga County.

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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.

5. 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 affirmed.

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

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 of four $500 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 morning when the money was taken from the safe and counted, 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 his 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. Beckwith, 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 affirmed. There will be no further report.

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 business 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. Motion to take cause No. 1021, on the General Docket, out of its order for hearing. Motion granted.

19. Charles Bennett v. The State of Ohio. Motion to take cause No. 1022, 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 file 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 Docket, 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 Corrected. 2 Vols. H. W. Derby & Co., Columbus, Ohio 1882.

We have received from the publishers, H. W. Derby & Co., of this city, the Revised Edition of the Revised Statutes of Ohio. It will be remembered that the work of the Codifying Commission was hurried forward by the peculiar phraseology of the law creating the Commission, to such a degree that perfect accuracy in the verification of references and citations was impossible. The inaccuracy resulting therefrom has proven so annoying that Messrs. Derby & Co. have been induced to revise the work, to correct typographical and other errors, and to make certain improvements absolutely essential in a book so constantly used by all lawyers and business men.

Over five thousand new references have been added to this edition. Many errors, which reversed the true meaning of the law-contained in the old edition have been noted in the

new.

The references to the session laws have been corrected and references also added, opposite each section, to the corresponding laws contained in Swan & Critchfield and Swan & Sayler.

These corrections and additions together with notations, references, &c., to amendments, repeals and supplemental sections in the session laws of 1880 and 1881, with revised and corrected Index and cross references will save public officers and the legal profession much vexatious labor, and so facilitate their inquiries, whether a section of the Revised Statutes is a new law, an old law already construed, a modified or revised law, or has been repealed or amended since the first edition of the Revised Statutes was published.

Considering the errors in the first, and these great improvements and amendments in the second, it is certain that the old will speedily and generally give place to the new.

In addition to this we are assured that hereafter all amendments, repeals, changes, modifications and interpretations, will follow the second edition in a uniform series, referring constantly thereto and making a complete encyclopedia of the statute laws of the State. This will, render

the second edition, indispensable to the library of every public officer, business man and lawyer in the State.

THE REORGANIZATION

OF THE SUPREME COURT OF THE UNITED STATES.

We have heretofore studiously avoided any editorial mention of, or comment upon the various measures proposed for the relief of the over-burdened Supreme Court of the United States. We presume the discussion is within the province we might assume to be ours as a law journal, but we are modest, and, although we "have views," we do not take a mean advantage and foist such views upon our readers simply because we can. Our columns are open to our patrons, and they are all lawyers and good lawyers-and by far too well supplied with knowledge and good sense to derive any benefit from the private opinions or the editors. If we possessed the egotism of the Albany Law Journal we might advertise ourselves as an oracle and discuss things as flippantly as that paper. But we have too high regard for the dignity of the profession, and too much mercy upon law journal readers.

The fact that two bills have been offered in Congress having in view the reorganization of the Supreme Court of the United States, and that a meeting of distinguished lawyers and representatives of State Bar Associations, is to be held in in New York, to help along the work of reform, is probably well known to all our readers. What is to be accomplished by all this effort, however, is not known and can hardly be conjectured. That the court is buried under an accumulation of cases from which it can never extricate itself without aid, is well known also; and the question arises, "What can be done?"

We are face to face with a dilemma of most uncompromising boldness. The accumulated business awaiting the action of the Supreme Court of the U. S., cannot be disposed of by that court. And the business so accumulated cannot be transferred from that to any other forum without a palpable violation of the constitutional rights of the litigants. Until the Constitution is amended there can be no division of the supreme court. The framers of the Constitution were determined to make the highest judicial power of the country resident in one court. The pertinacity with which they clung to the declaration that there should be but one Supreme Court-through all changes and discussion

amply proves the intention of the old law makers. Every measure of relief yet proposed violates this principle.

The comparative merits of the Davis Bill and Manning Bill, we need not discuss. The first so widens the field of appellate jurisdiction that its increase of judicial force will be speedily absorbed and the dockets again be overcharged with business.

The Manning Bill is open to the objection that it is unconstitutional, for reasons mentioned above; and while it contemplates relief to the Supreme Court alone, can not be considered the measure needful.

An increase of judicial force will not do. The highest court-the court of last resort, in a great nation, does not necessarily require to be composed of a great number of judges. Indeed the greater the number the greater certainty of being compelled to fill the bench partly, at least, with inferior material. Nations, even as great as ours, do not produce great jurists in large numbers. There may be three, possibly five in the United States, to-day, who are fitted to sit in the highest tribunal of the land. But there can be no more; and the voice and vote of a weakling who may be placed in office by politicians, is as potent in deciding cases as that of a giant in intellect and juridical ability. The greater number of judges the greater absolute certainty that a part of them will be of mediocre talent. (We may be misunderstood in this matter. An appellate system of administering justice presupposes grading upward of judicial ability, otherwise wherein would the rulings of a Supreme Court be superior to those of a justice of the peace? There are 191 Supreme Court judges of the various States of the United States. They are practically of equal ability. If the Supreme Court of the United States is not to be far superior to the average ability of these one hundred and ninety-one, what a farce is played in the maintenance of a tribunal to which appeals may lie from the State Supreme Courts; and would not the rulings of the eight judges in the Massachusetts, Maine or Maryland Supreme Courts be as wise as those of any eight judges of the U. S. Supreme Court? And as but seven judges are usually on the bench in the latter court, in what respect is their wisdom better than the wisdom of the Supreme Courts of California, Illinois, New Hampshire, Pennsylvania or New Yorkeach of which has seven judges-if the U. S. judges are no wiser than the State Supreme

judges. And if numbers alone prevail, how can the U. S. Supreme Court with nine judges, induce New Jersey with ten members of her highest tribunal to bow in meek submission to the wisdom of the former. The ability of the U. S. supreme judges must be rare indeed; and rare ability does not grow in profusion.)

Then, again, five judges-good judges-will hear and determine more cases than can fifteen, and a greater percentage of those will be correctly

decided. Five can confer and deliberate. Fif teen would discuss, debate, make speeches and procrastinate.

The court of last resort must be a Supreme Court; or we must change the Constitution. A Supreme Court cannot be divided, else where will the supremacy reside? And if perchance the same question, raised in different cases, were decided differently in the various divisions, which would be the law? Which would be followed by the lower courts, and which division would yield?

These objections to the plans proposed we are sure will defeat them. For we are sure the lawyers in Congress will also urge them. We have great hopes, however, of seeing a plan proposed by the coming convention in New York. Hon. Rufus King, of Cincinnati and Hon. Rufus P. Ranney, of Cleveland, will be there and if they are not attacked and their usefulness obstructed by some ungodly reference-by some jealous New Yorker to the agonizing plethora in the Ohio Supreme Court, which all our legal doctors cannot cure-we know theirs will be valuable aid to the convention.

-Since the foregoing remarks were written, we have received from Hon. Lorenzo Sawyer, of San Francisco, Cal., the draft of "A Bill to Reorganize the Courts of the United States, and provide for additional Appellate Courts." We cannot now go into review of the plan therein proposed, but will do so at some future time. The remarks of the author of the "bill" or plan, indicate an appreciation of the difficulties, but the relief proposed is open to the objection, that, like the other plans, a large additional force of judges is contemplated therein, and this we cannot believe will ever cure the defects of the present system or inaugurate a better one. The Sawyer bill and the remarks of the author is neatly printed and bound by A. L. Bancroft & Co., San Francisco, Cal.

RIGHT OF COUNSEL TO REPRESENT | living in constant fear of a repetition of the PROSECUTING WITNESS IN CRIMINAL

CASES.

WAVERLY, O. Feb. 4, 1882. EDITORS OHIO LAW JOURNAL, COLUMBUS, OHIO:

wrong, and in constant danger of losing lifeand naturally desirous of punishing the of fender and of protecting life and property, are compelled to employ private counsel to prosecute. And even then it not infrequently happens that the Prosecuting Attorney working in the interests of the law breaker, goes before the grand

An article under the head, "Right of Counsel to represent Prosecuting Witness in Criminal Cases," appeared in the LAW JOURNAL of the date jury and by false statements as to the law, pre

of January 26, 1882, signed "G."

The article contains several false statements and some malicious and unjust insinuations. I write this not to correct such false statements and expose in their proper light the unjust insinuations, nor to make a complaint against the writer, but to say, such an article should not be published in a law journal-surely not without giving the name of the writer. It must be remembered your per is read by most of the members of the bench and Bar in this State, who not knowing the writer, have a right to presume your reporter was a fair and impartial person, unprejudiced and unbiased and that he sustained a good character and reputation for truth and veracity as well.

But if it had appeared from the article or the journal, that "G." stands for Grosvenor of Athens, and that he was the "attorney-at-law residing in an adjoining county," the presumption above stated could not arise to that degree; at least that any possible harm could have resulted from its publication, in the judicial district where he is well known and where it evidently was intended to injure. Had it been signed by the writer it would have been passed, by me at least, in silent contempt.

JAMES TRIPP.

We publish the foregoing simply as a matter of justice to Judge Tripp. Having been named in "G.'s" communication, and writing now over his full signature we could do no less than publish his letter. We regret, however, that the language of both articles is so emphatic and inclines so strongly to the personal.

vents an indictment. Dishonest and incompetent prosecuting attorneys have forced upon the people the custom of employing private counsel. Their incompetency forces upon the court the necessity of selecting an attorney to prosecute, to guard the interest of justice and the supremacy of law. Counties which pay thousands of dollars annually to attorneys appointed to do the work of the officer elected and paid for that purpose, can testify to the extent of the evil and its very annoying results.

This we admit has no bearing upon the law under discussion except that it explains the reason of the growth of the custom.

Judge Tripp is strongly supported in another communication published below which is from the pen of one of our best lawyers.

We might add in allusion to the remark by Judge Tripp, "that such articles should not appear in a law journal," that when eminent gentlemen discuss questions of grave public import though our columns, and in so doing use strong language, we are impelled to the belief that the good resulting to the public therefrom by way of correcting abuses or misconceptions of law, will more than countervail the wounds upon the dignity of their innocent medium-the LAW JOURNAL.

EDITORS OF OHIO LAW Journal":

It is well known, also, that great statesmen, great lawyers, and sometimes great judges do not haThe question discussed is an open one and the bitually make use of honeyed phrases in expresspro and con as urged by both parties will doubting themselves. less lead to a better understanding of the principles involved and possibly to legislation settling the matter, if not to the satisfaction of all, at least beyond its present state of uncertainty. Should the ruling of Judge Tripp be sustained by the Supreme Court; or should the law be amended so as to be clearly understood, one happy result would be secured at least. And people would then elect lawyers instead of pettifoggers to the office of Prosecuting Attorney as is now sometimes done.

It has come to be a recognized fact in some counties we could name, that persons who have been grieviously injured-cut, beaten and wounded

I have been considerably interested in two communications which have recently appeared in your columns as to the right of prosecuting witness to be represented by counsel in criminal cases.

The first article is written as a criticism not only of the ruling of the judge in the case, but the manner of the judge in making the same and some of the reasons given for making it. Upon these points I do not propose to express any opinion as of course I have no means of knowing the precise state of affairs, but will merely call

attention to the following language, “the decision was an arbitrary opinion of this judge, unsupported by law, precedent or common sense."

That the right of the government to employ special counsel to represent it either as assistants to the law officers of the crown or to conduct the cases in their absence, has been recognized at common law from time immemorial, no one at all familiar with the criminal trials of England will for a moment dispute, and there is probably no doubt but that even in the absence of any statute on that subject, the court might permit the Prosecuting Attorney to have assistance where it was deemed necessary, and section 7196 of the Revised Statutes. would only be declaratory of the common law so far as the appointment of assistant counsel is concerned..

There is in the criminal law no injured party but the State. The same act which is a crime against the State, may also be a tort for which the injured party may have a civil remedy, but this gives him no greater right to have the accused punished, criminally, than any other citizen. The people are represented by their officer chosen for the double purpose of convicting the guilty, and preventing the conviction of a party who is innocent, and it is a part of his sworn duty to seek the conviction of those whom he believes guilty, and the prosecutor who obtains the conviction of an innocent man, by misstatement of facts to the jury or by any improper influence, violates his oath of office.

The law so abhors the conviction of an innocent man, that it is said, it is better that a thousand guilty should go unpunished than one innocent man be punished. And while there

may be danger of the acquittal of the guilty, there may also be danger that even with an unprejudiced prosecutor, who does his duty under his oath, that an innocent man may be con

The statute does not expressly permit a Prosecuting Attorney to call any person into the case without the permission of the court, and the only thing in the Code which would warrant this practice would be, that as section 7245 expressly prohibits a partner of the prosecutor from assisting in 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, exclusio alterius, that none are excluded, except those embodied in the prohibition.

The writer does not çite any authorities either under the common law or from any other State, to show that the courts have admitted the right claimed, and but one in this State, which, upon examination, certainly does not uphold the position taken by him. That case, Price v. The State, 35 O. S. 601, only holds that one judge, holding court in Hamilton County, notwithstanding the fact that there was a regular assistant prosecutor in that county, could assign assistant counsel, but expressly denies that even the Prosecuting Attorney, the injured party or his friends, can require that to be done, and that the appointment should not be made unless the due administration of justice requires it. This would seem to warrant the conclusion that if the court is not required to appoint an assistant, it is not required to permit a person not so appointed to come into the case, and then the question presents itself, does the principle of the criminal law require it, or even allow it.

The doctrine of the law is, that every person charged with crime is innocent until proven guilty.

Another idea at the basis of the criminal law is that the offence is not against the individual, but against the peace and dignity of the State.

employ and pay counsel, in a criminal case, what is the purpose of such employment?

To secure the conviction of the accused, is certainly the sole purpose of the retainer. The lawyer works not to uphold the majesty of the law; he works to accomplish the purpose of his client. He goes into the case, not to see that justice is done, but if possible, by his eloquence, to drive from the minds of the jury the doubts they may have of the guilt of the party, and he does this not because the law should be upheld, but because his client desires that the accused should be punished.

With this view of what is the design of the criminal law, we think the view of the judge in refusing to allow outside lawyers hired by the prosecuting witness to assist in the case, is not without "common sense" and that it is upheld by the principles which underlie the criminal law.

As the Supreme Court say, an appointment of a lawyer to assist the Prosecuting Attorney should not be made unless the due administration of justice requires it, it would seem to follow that the judge ought not to permit a man, not appointed for that purpose by the court, to take part in the trial.

COLUMBUS, O., Feb. 6, 1882.

O. W. A.

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