Western Reserve Law Journal Published Monthly by Members of The Franklin T. Backus Law School of the Western Reserve University EDITORIAL BOARD: C. N. FISCUS, Editor-in-Chief, 139 Murray Hill, Cleveland, O. A. R. MANNING, Business Manager, 17 Vestry St., Cleveland, O. This number completes Vol. II of the JOURNAL. Mindful of your generous appreciation, we continue the work with renewed effort. As to what each succeeding issue will be, we make no dazzling promise nor catchy announcement, willing to let each number be its own trumpeter. Suffice it to say the JOURNAL for 1897 will be fully worthy of its predecessors, which have long since established for it a position in the foremost rank. With the dawning of the new year, we not only offer the customary greetings of the season, but express an earnest wish that each succeeding year may be even more prosperous than the preceding. We are pleased to note an admirable and valuable contribution to the law literature of Ohio, in Clement Bates' Complete Ohio Digest. It groups together all of the cases on the same point, and the two volumes evidence much industry and learning in the compilation The interesting table in Vol. 2, of cases overruled, affirmed and cited is worth the price of the Digest. We feel safe in saying no attorney-at-law can wisely refuse to add this work to his library. It is just what is needed by the profession and we desire to call our readers' attention to this wo. 、. Suppression of Crime. Perhaps no other question so vitally affects the welfare of the State, both collectively and individually, as the solution of the problem of crime, its prevention, restriction and punishment. Certainly no other question approaching it in importance is so universally neglected, and assuredly to no other problem do we apply such antiquated solutions. Crime is an evil. It abolishment would be a blessing. We may not dare to hope for its utter stamping out, but our efforts should have that object in view. Our present system is founded on barbarious notions. In spite of high sounding theories, it is a system founded on the idea of revenge. Instead of the individual as an individual, taking revenge, the individuals collectively, as a state, take the revenge. Our efforts are misdirected. The surest way to exterminate a noxious plant is to pull it out by the roots, not pinch it off short here and there. An ounce of prevention is worth a pound, yes, a ton of cure. Our whole machinery is constructed with a view to dealing with the criminal as such, instead of with a view to preventing his becoming a criminal. There is a striking analogy between a diseased body or mind and a criminal mind; indeed, it may be said with a fair show of reason that criminal acts are due to a diseased condition of the mind. (We call it depraved—we are ever fond of juggling with words). However this may be, there is sufficient similarity to justify a comparison of the methods of treatment, and such comparison can but result disastrously to the criminal methods, which is the proper word not only to designate but to describe our methods-legal methods of dealing with crime. It is easier to find fault than to remove it. However, it must first be found before it will be removed. It must not only be found and pointed out, but those who are to remove it must be convinced that the time for removal is at hand. Man acts from selfish motives. You may appeal to his moral sentiments, you may moralize and you may philosophize. You may convince him that inactivity is criminal, and yet he will remain passive; but touch his pocketbook and he instantly becomes the embodiment of activity. You have touched the mainspring of life. All attempts at the reformation of our penal system will be fruitless unless aimed at the prevention of crime, and even these will be barren of results unless they have the active assent and coöperation of the great body of individuals who compose the State. Can this cooperation be secured? We believe it can. We believe there is a statute now in force in this State which will have that effect, although we doubt whether that was the object of its passage. We refer to the recent enactment making the County liable for the losses occasioned by riots. If this law is upheld, as we hope it will be, it will convince the most obtuse and callous that he has an active interest in the suppression of riots. The fact that he, as part of the State, may take revenge upon the rioters by penalying them, will not compensate him for the losses he must pay as a result of the riot. Revenge will then be poor satisfaction, and he will seek to prevent future riots. And when every other individual is actuated by the same desire, the result hoped for will be attained. While this enactment applies only to riots, we believe it furnishes a key to the solution, at least to a very great extent, of the perplexing problem of the prevention of crime. If, in addition to the penalty imposed on the criminal, a liability for the loss sustained by. virtue of the criminal act were imposed on the County, active measures, having for their object the suppression and prevention of crime, instead of its mere punishment, would soon be taken. The Mecbanic's Lien Law Decision. The first Mechanic's Lien Law enacted in Ohio was "An Act to create a lien in favor of mechanics, and others, in certain cases," passed March 11, 1843, 41 O. L., 66, and it provided for a lien as well for materials as for labor. The section of this Act which provided for the lien was amended by the Act of 1879, 74 O. L., 168, and as so amended was incorporated into the Revised Statutes of 1880, as §3184. It has since been amended four times; namely, in 1887, 84 O. L., 6; April 15, 1889, 86 O. L., 373; April 18, 1892, 89 O. L., 373, and April 13, 1894, 91 O. L., 135. The validity of the original law and of the various amendments, with the exception of the last, has been sustained in numerous decisions of the Supreme Court. The last amendment made an important innovation in the law, whereby the words "by virtue of the contract with the owner or his authorized agent" were changed so as to read "by virtue of the contract with, or at the instance of the owner thereof, or his agent, trustee, contractor or sub-contractor." The constitutionality of this amendment has just been brought into question before the Supreme Court of Ohio in the cases of Palmer and Crawford vs. Tingle, and Young vs. The Lion Hardware Co. These two cases were heard and determined together in the Supreme Court, and by that Court's decision, handed down Dec. 8, 1896, it was held that "The inalienable right of enjoying liberty and acquiring property, guaranteed by the first section of the bill of rights of the constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints as are necessary for the common welfare. Liberty to acquire property by contract, can be restrained by the general assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people, and such restraining statute must be of such a character that a court may see that it is for such general welfare, protection and benefit. The judgment of the general assembly in such cases is not conclusive. While a valid statute regulating contracts is, by its own force, read into, and made a part of such contracts, it is otherwise as to invalid statutes. The act of April 13, 1894, 91 O. L., 135, in so far as it gives a lien, on the property of the owner to sub-contractors, laborers and those who furnish machinery, material or tile to the contractor, is unconstitutional and void. All to whom the contractor becomes indebted in the performance of his contract, are bound by the terms of the contract between him and the owner.' Mr. Justice Burket delivering the opinion of the Court, also says: "The conclusion is that the statute in question, in so far as it attempts to give a lien for materials, machinery, tile or labor obtained by the contractors, is unconstitutional and void." The Court leaves in doubt the question whether they intend also to hold the repealing clause of the said Act of April 13, 1894, to be unconstitutional. If so, it leaves the Act of April 18, 1892, supra, in force. If not, then we have no Mechanic's Lien law at the present time in this state, (unless indeed the Supreme Court has left some spark of life in the dismembered section, which is improbable). The rule of statutory construction in such case has been recently expressed, as follows: "When it is clearly manifest from the act of the general assembly, that the repealing clause would not have been enacted, had not the amendment been also enacted, and thus the whole act inseparably connected, then the whole act, including the repealing section, falls together, and if the repealing clause be unconstitutional, certainly it could not affect the statute it purports to repeal (see State ex rel. Smith, 48 Ohio St. 211 and 219) any more than the unconstitutional amendment could affect the statute it purports to amend." Another recent case decided by the Supreme Court of Ohio, in reference to Mechanic's Statutory Liens, is that of The Standard Oil Co. vs. Sowden, Assignee, et al. The rights of the parties in this case were fixed by the law as it stood in January, 1892. It assumes particularly to construe §3185 and may be taken to construe the Mechanic's Lien Law now in force, if there be any statute at all now applicable to that subject. FREDERICK A. HENRY. Is Parol Testimony Admissible to Prove the Existence of a There are two distinct and opposing lines of cases, led by Dale vs. Hamilton,1 in the affirmative, and by Smith vs. Burnham,2 in the negative. The one, a decision by Vice Chancellor Wigram in the High Court of Chancery of England, the other that of Justice Story, sitting as (1) 5 Hare's Ch. Rep. 369. (2) 3 Sumner 435. a United States Circuit Judge; both were eminent jurists in their respective countries, and both decisions are the result of opinions worthy of these eminent authors; and while it seems to be true, that Courts in passing upon this question since the rendering of these decisions have respectively relied upon them as doctrines for their opposite views, yet in our humble opinion, these eminent jurists would have come to the same conclusion had they each sat in the other case. Without doubt, the cases preponderate in number with the affirmative view, but in our Tumble judgment the weight of authority is with the negative. The facts in the case of Dale vs. Hamilton were, in brief, that Dale, who was a surveyor and land agent, entered into a verbal agreement that one McAdams was to purchase certain lands at Birkenhead, England, and was to lay out the land into lots, and assist in selling the same. McAdams agreed to furnish all the money. Dale purchasedw the land and took the title in the name of McAdams. McAdams, in the meanwhile, had entered into a written contract with the defendant Hamilton, whereby Hamilton agreed to furnish half the money. He and McAdams were each to have one-third interest in said purchase, and the agreement expressly provided that Dale was to receive the other onethird for his services and commissions. Dale was no party to this agreement. McAdams in the meanwhile died, and his devisees and Hamilton refused to share with Dale in the interest of said property or its profits. Dale brought suit, setting up the partnership relation, and asked for relief. By Dale's efforts in improving the property it had risen in value from £9,000 to £30,000. The judge begins his opinion with the statement that anyone reading the admission in the answer of the defendant, Hamilton, and also reading the memorandum, signed by Hamilton and McAdams, and being at liberty to assume that such a contract was, in fact made, can have no doubt of what the justice of the case required. He stated further that the land had risen in value from £9,000 to £30,000, and yet the plaintiff's right to participate in that profit is already denied. He further remarks that the acts of the plaintiff may as naturally be referred to his character of a hired surveyor and agent, as to a contract giving him an interest in the land. The Court sustained the view of the plaintiff, that where a partnership, or agreement in the nature of a partnership exists between two persons, and land is acquired by the partnership as a substratum for such partnership, the land is in the nature of the stock in trade of the partnership, and the partnership being proven as an independent fact, the Court without regarding the Statute of Frauds, will inquire of what the partnership stock consists; whether it be of land or of property of another nature. It is well to note that the proposition is of land acquired by a partnership as a substratum for such partnership, as distinguished from land acquired by a partner in his own name, and with his own money. But |