174. Alfred T. Newton et al. v. Karl J. Hammond. Error to the District Court of Summit county.

MCILVAINE, J., Held:

1. It is made the duty of guardians, by statute, when their wards arrive at age, to make final settlement of their accounts in the probate court.

2. The jurisdiction of probate courts over the settlement of such accounts is exclusive.

3. A right of action on a guardian's bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by the probate court or the settlement of the guardian's final account. Bartlett v. Humphries, 7 Ohio Part I. 223, explained.

4. Mere delay of a ward on his arriving of age to compel his guardian to settle his accounts in the probate court, does not discharge the sureties, notwithstanding the guardian may, in the meantime, have become insolvent.

Judgment affirmed.

61. Henry F. Brown v. George Hildebrand. Error to the District Court of Hancock County. Judgment affirmed. No penalty or fee, and there will be no further report.

172. John Todd et al. v. James B. Hughes et al. Error to the District Court of Mahoning County. Judgment affirmed, following The State, ex rel. v. Matthews, 10 O. S. 431. And see Mayor, etc., of Baltimore v. Stirling, 29 Md. 48; Harding v. Yarmouth, 6 Allen 277. No penalty or fee, and there will be no further report.

191. W. S. Dunn & Co. v. Ferdinand Springmeir. et al. Error to the District Court of Hamilton County. Judgment affirmed. Plaintiffs in error adjudged to pay $25.00 attorney's fee for defendants, and $25.00 penalty. There will be no further report.

739. John W. Rutherford et al. v. Henry Brachman, et al. Error to the District Court of Hamilton County. Order of revivor by agreement.

784. Lake Shore & Michigan Southern Railway Co. v. Abram D. Scofield. Error to the District Court of Lucas County. Settled, dismissed and costs paid.

1317. Justina Bugh v. Elizabeth Sturgeon et al. Error to the District Court of Pickaway county. Time for filing printed record extended for ninety days.

1318. D. J. Crouse v. David B. Wagner. Error to the District Court of Pickaway county. Time for filing printed record extended for ninety days.

1319. Shields, May & Co. v. Scioto Machine Works et al. Error to the District Court of Pickaway county. Time for filing printed record extended for ninety days.

MOTION DOCKET.

161. James Secor et al. v. Samuel B. Witter et al. Motion to dispense with printing in cause No. 187 on the General Docket. Motion withdrawn by leave.

163. Newhall, Gale & Co. v. Solomon Langdon & Co. Motion to re-instate cause No. 163 on the General Docket. Motion granted and cause re-instated.

164. Hamilton Green v. Township Trustees of Paint Township, Fayette County. Motion for stay of execution in cause No 1330 on the General Docket. Motion granted and bond filed in the sum of $500.

165. Elijah B. Hall, Treasurer of Lucas County v. First Presbyterian Church of Toledo. Motion to take cause No 1334 on the General Docket out of its order for hearing. Motion granted.

166. Elijah B. Hall, Treasurer of Lucas County v. James T. Southard et al. Motion to advance cause No. 1335 on the General Docket to be heard with cause No. 1334. Motion granted.

167. Elijah B. Hall, Treasurer, &c. v. Charles West et al. Motion to advance cause No. 1336 on the General Docket to be heard with cause No. 1334. Motion granted:

168. Elijah B. Hall, Treasurer, &c. v. Caroline M. Field. Motion to advance cause No. 1337 on the General Docket to be heard with cause No. 1334. Motion granted.

169. Elijah B. Hall, Treasurer, &c. v. Murrough O'Brien. Motion to advance cause No. 1338 on the General Docket to be heard with cause No. 13 34 Motion granted.

170. James Betts et al. v. Alexander Harper et al. Motion to dismiss No. 1002 on the General Docket for want of printing and counter motion to extend time for printing. Motion to dismiss overruled and counter motion granted with leave to file printed record in 90 days.

171. Ohio ex rel John Myer v. Edwin Henderson, City Clerk, &c. Motion to take cause No. 1332 on the General Docket out of its order for hearing. Motion granted.

The supreme court called, cases on the general docket from 201 to 275 inclusive, Tuesday morning.

Numbers 207, 219, 221, 223, 231, 239 and 261 were marked for oral argument, all the other cases were marked submitted.

An additional assignment of cases for oral argument will be made and published in a few days.

A class of fifteen gentlemen was examined for admission on Tuesday, but the report of the committee on the same had not been announced up to the time of going to press.

ADMITTED TO PRACTICE.

The following gentlemen were last week examined, and by the supreme court admitted to practice law in the State of Ohio:

James W. Holcomb, Ravenna, Ohio; Augustus, S. Cole, Ravenna, Ohio; Manus O'Donnell, London, Ohio; Wm. F. Diefendorf, Ashland, Ohio; J. W. Bradley, Jr., Cincinnati, Ohio; Wilbur Parker, Cleveland, Ohio; N. S. Calhoun, Cleveland, Ohio; Lucian M. Dawson, New Richmond, Ohio; Henry N. Galloway, Columbus, Ohio.

THE DEFENCE OF INDIGENT PERSONS CHARGED WITH CRIME.

Judge Wylie, of the Common Pleas of Franklin County, has been winning golden opinions, ever since taking his seat, by the uniform good judgment displayed in the regulation of court affairs, and the exercise of what is sometimes called "sound discretion." In no case is this more apparent than in the assignment of counsel for the defence of prisoners who have no means whereby to employ counsel. Upon the arraignment of prisoners it had become customary for the younger members of the bar, and also of some older members, who have but limited practice and yet more limited ability as lawyers, to hang about the court and clamor for a chance to "defend" some of these poor unfortunates.

The idea seems to have never entered the minds of the would-be advocates, that the innocence of a poor man is harder to establish than of a rich man, and that as every man is presumed to be innocent until proven guilty, the poor man ought to receive the benefit of as able counsel as can be procured. It would be certainly a strange kind of philanthropy that would make a law, giving to courts the power to appoint counsel to defend indigent persons charged with crime, if the law were to be interpreted to mean that incompetent shysters, or inexperienced lawyers, were to be assigned merely to give to the one, practice and a fee, and the other' experience as advocates. It would be a mockery of justice; and yet that is too often done. Judge Wylie, however, with the royal good sense, and the fearlessness that always characterizes those judges who become judges, and remain judges as long as they live, has stepped heavily upon this practice, saying plainly, that

THE Philadelphia Times has the following remarks in reference to the murder of Col. Sayback by Col. Cockerill at St. Louis: If reputable newspapers were to indulge in the licentious editorial utterances which are common among even reputable lawyers in both our criminal and civil courts, and which are more common in the political speeches of even reputable campaign orators, newspapers would be excluded from intelligent families, and their usefulness would be speedily ended in their respective communities. In this declaration we take no account of the miserable shysters of the bar who could not be tolerably decent if they would, nor do we take note of the petty political blackguards who hang on the edges and disgrace every party. There are disreputable black-mail newspapers which correspond with legal shysters and political blackguards, but we now deal only with reputable lawyers and politicians and newspapers. And why is a degree of license tolerated in public speech that would not be tolerated in the public press? True, the newspaper goes to the home, but so must the public speech where newspapers are published, and the evil of licentiousness in utterances is equal in both cases. We have heard Philadelphia lawyers, who stand well in the front of the bar and who would be savagely offended if spoken of as any thing but eminently reputable members of the bar, deal out floods of the most scurrilous personal abuse of opposing suitors and witnesses without restraint from the court, and without any apparent appreciation of the blackguardism they exhibited. Nor are such cases rare. Almost any week a degree of license in public speech may be heard in our courts, which if read in the editorial columns of a reputable newspaper, would be condemned as atrocious by the whole community, including the legal blackguards themselves. Nor is this all. We have heard reputable lawyers violently declaim against the licentiousness of the public press for its alleged invasion of the sanctity of private life, when ten lines of truth about the private lives of the legal censors of the press would end the peace of their homes

forever, and the same is true of nearly every defamatory political speaker. The reputable newspaper forbears because it is a sacred duty to the public and to the innocent that it shall forbear. but by what rule of law or of social or moral or professional ethics does the lawyer attain his warrant for a degree of licentiousness that he would be shocked to see in the editorial columns of his newspaper?

NOT LARCENY IN THE EYE OF THE LAW FOR A HUSBAND TO APPROPRIATE PROPERTY BE

LONGING TO HIS WIFE.

In the Cuyahoga County Common Pleas Criminal Court last week, Judge J. M. Jones delivered the opinion given below in the case of the State . Daniel Parker, indicted for stealing money and jewelry from his wife, Mary Parker. The couple, though living separately, had not been divorced at the time the property was taken, and J. H. Rhodes, Esq., who was assigned by the court to defend the prisoner, made the point that the unity of the marriage relation is such that it is impossible for a husband to commit larceny of his wife's property or a wife of her husband's property. The decision in the case is one of unusual interest.

JONES, J.

The defendant in this case is under indictment in this court on the charge of grand larceny in stealing and converting to his own use in June last, money and jewelry to the value of about six hundred dollars, alleged to be the separate property of one Mary Parker, who it is conceded was then and there the wife of said defendant, Daniel Parker, who was then living apart from him, and a suit for damages was then pending between them. It is unquestionably true that under the common law and in the absence of statutes providing for and regulating the separate estates of married women, that no indictment could have been maintained against either a husband or wife for the larceny or embezzlement of the goods and chattels belonging to the other. This doctrine was distinctly announced in England more than two hundred years ago, and has been consistently and uniformly maintained since then. Said Sir Matthew Hale, "The wife cannot commit felony of the goods of her husband, for they are one person in law." Hale's Pleas of C. 514. In Hawkes' Pleas of the Crown, chapter 32, section 33, the law is stated as follows: "It is certain that a femme covert may be guilty thereof by stealing the goods of a stranger, but not by stealing her husband's, because a husband and wife are considered as

but one person in law, and the husband by endowing his wife at the marriage with all of his earthly goods gives her a kind of interest in them." And in a comparatively recent English case it was held that a wife could not be convicted of the crime of receiving stolen goods from her husband; and all the five judges on appeal concurred in this principle and agreed in setting aside against her. -14, Eng L. and Eq. 580.

This exemption of either from the crime of larceny in regard to the goods of the other has been chiefly placed on the ground of the legal unity of the husband and wife by virtue of the marriage relation and is distinctly sustained in numerous well approved authorities. See 2d Bishop on Cr. law, 855; 2d Bishop on law of M. W., 152-3; 8th Coxe C. C. 184; Leigh and C. 511; 48th Indiana, 197; Wharton Cr. L... Sec. 1802; 6 Cowan, 572 1st Eng. L. and Eq. 542; 26th Eng. L. 570.

And upon this principle of the legal unity of the husband and wife, so as to be but one person in law, the husband cannot by any common law conveyance, give or grant any legal estate directly to the wife either in possession, reversion or remainder, though such gifts may be upheld in equity. Tyler on Infancy and C., section 357; 1 Bishop on M. W. section 35; 16 Ohio State R. 493; 14 Barber 531. The soundness of the doctrine, laid down by some of the authorities, to wit: That one of the reasons why a wife cannot commit larceny of the goods of her husband, is because she has been endowed of his earthly goods may well be questioned and has been questioned for the reason that marriage gives her no distinct title to her husband's goods, no control on them, no rights to their separate possession, no power over them except as his agent, and he might sell or dispose of them, or bequeath them, in any way he pleases.

But it is claimed that in the case at bar the law is wholly changed or modified by reason of the statute of the State of Ohio creating, providing for and defining the separate estate of married women.

Section 3109 of the Revised Statutes of 1880, provides "that the personal property, including rights in action, belonging to a woman at her marriage, as coming to her during her coverture, by gift, bequest, or inheritance, or by purchase with her separate money or means, or due in the wages of her separate labor or growing out of any violation of her personal rights, shall together with all income, increase and profit therefrom be and remain her separate property and under her sole control and shall not be liable to be taken by any process of law for the debts of her husband."

It seems to me that while the ancient law in respect to the property relation of the husband and wife had by reason of this statute undergone a great and radical change, the marital relation in its essential nature and the doctrine of the legal unity of the parties by reason of that relation remains wholly undisturbed; the marital obligations of a party are the same, the promises of each are binding as before, the husband is still liable to support, protect and maintain his wife, she is entitled to dower in his estate, and he to curtesy in hers, he is still liable as before the statute to respond for any torts, such as assaults, slanders, libels, etc., which she may be guilty of; and no one would claim for a moment that the statute authorizing her to hold the wages of her separate labor, would entitle her to charge her husband for her services in doing her household duties.

Chief Justice Lowry, of Pennsylvania, in discussing the effect of a similar statute of that state which declared that a woman's property shall continue hers "as fully after marriage as before," and "shall be owned, used and enjoyed by her, as her own separate property" says "as the only object of the statute was to afford a protection to the estate of a married woman, we may assume that it was not intended that she should so fully own her separate property as to impair the intimacy and unity of the marriage relation; it was not intended to declare that her property should be separate, that her husband could be guilty of larceny or be liable in trespass or trover for breaking a dish or a chair or in using either without her consent. 12th Casey, 410.

Judge Lawrence, of Illinois, in discussing a similar statute says, "supposing a house and furniture are owned by a wife as her separate property, can she forbid the husband the use of such portion of it as she may choose, allowing him to occupy only a particular chair or to take from the shelves of the library a book only on her permission? This would be all very absurd and we know the legisla ture had no idea of enacting a law to be thus interpreted." 44th Ill. 58.

And Mr. Wells, in his valuable" Treatise on the Separate Property of Women" page 104, says, after discussing the question in regard to various separate property statutes, "I suppose it may be safely assumed that the husband and wife are not so far rendered 'twain' by these statutes as to be capable of stealing from each other, whatever civil remedies are provided to protect their rights respectively as between themselves."

This doctrine is discussed and approved in the 2 vols. "Bishop's Laws of Married Women sec. 152-3-4 he says; "One point which

seems to be admitted is that the husband cannot commit larceny of the wife's separate statutory estate; " also, it was never known or dreamed of where the common law prevailed that a husband or wife could be sued in trespass for a wrong done to the personal or real estate of the other, and the rules by which such consequential effects are given to statutes would not seem to require such an effect to follow the statutes under consideration."

In Illinois under a statute regarding the wife's separate property not materially different from ours, it was decided "that the act has not so far destroyed the relation of husband and wife as to render either guilty of larceny by converting the property of the other. Whatever is the civil liability it is not larceny." 51 Ill. 165.

This question also came into consideration but was not fully decided in the following cases. 43 Texas; 70 Indiana 317.

But I have not been able to find any case under any of the statutes relating to the separate estate of married women which holds distinctly that a husband may be guilty of larceny in regard thereto. And I cannot perceive that the separate property of the wife is now essentially different from the estate the husband held before the enactment of these statutes, or now holds in regard to his own property, nor any good reason, if she could not be liable for larceny or embezzlement of his goods before the enactment of these statutes, why he can be held so liable in respect to her property since.

And in this case at bar I hold that it makes

no difference in law, that they were living separate and apart at the time of the transaction, the legal relation still existed with all its results, and whatever of moral turpitude was manifested in this case by defendant, the offense, to-wit: stealing the goods of another was not perpetrated and the indictment in this case cannot be maintained.

The indictment was nollied and the defendant discharged.

C. M. Stone and Alexander Haddon represented the State and J. H. Rhodes was counsel for the defense.

TRIAL BY JURY.

The experience of all who are familiar with courts and their workings, shows that a person who is seeking only justice never desires the intervention of a jury; that a jury trial is always the hope of the person who desires to perpetrate an injustice; and that with the aid of a jury there is always a chance, and often more than an even chance, of making the judiciary sanction a wrong. There is no one familiar

with the courts and their workings who does not understand fully the great and usually controlling effect produced upon juries by certain elements, if present. Not unfrequently a woman or a child being a party to a controversy, is the element which controls the action of a jury. An individual and a corporation being the parties to a suit, the individual secures the verdict of the jury. The estate of a decedent, who has left considerable property, and no wife or children, on the most meager proofs will, by a jury, be held liable to any demand, however preposterous. A jury will nearly always find against the validity of a will, if its provisions do not have its approbation.

These are a few of the many instances in which it is well known that the finding of a jury will be controlled, to a great degree, if not absolutely, by some matter which has not the remotest bearing on the merits of the controversy. The time occupied in a trial by jury, the long harangues on questions of evidence, are all to be set down, on the one side or the other, to the desire to get before the jury some evidence that is immaterial, but which will, probably, produce an effect on the finding; and not unfrequently an offer to introduce a particular piece of evidence, though rejected, produce the desired effect.

In the courts of the United States, the distinction between cases at law and in equity, and the English practice in each class of cases, have been substantially maintained. In these courts all equity cases are tried by the court, without the aid of a jury. The equity cases are those in which the largest interests are involved, the most complicated questions of fact determined, and the most intricate questions as to the rights of all parties having any interest in the subject matter of the litigation are settled. Yet the want of a jury is never felt in these cases, and the parties to them are much better assured of a righteous result than the parties to suits at law, where a jury trial can be had. In the cases tried by jury in the Federal courts, the jury nuisance is not at its worst, for there the judge, as in the English courts, tells the jury substantially what to do, and promptly sets aside its verdict if it is not in accordance with his directions.

In Indiana, where the jury trial is a matter of right in every case, the bar association of the state appointed three eminent lawyers to report upon the jury trial, etc. A report was made by them, in which they say: "The practical working of this inflexible rule of trial by jury in all civil cases has been hurtful; in many cases it amounts to a denial of justice." That trial by jury is utterly unfit for the purpose of ascertaining the truth, in all cases where the truth is not easily and