R. D. and J. H. Handy v. Commissioners of Hamilton County.

R. D. AND J. H. HANDY V. THE COMMISSIONERS OF HAMILTON COUNTY.

1. An attorney, assigned, by the criminal court, to defend an indigent prisoner, has no right of action to recover the value of his services from the county commissioners.

2. It is the duty of the court to assign counsel for indigent persons; and it is the duty of the attorney, as an officer of the court, to perform such duty, and the county commissioners should allow him a reasonable compensation for such service; but the amount of compensation is discretionary with the board of commissioners.

SPECIAL TERM.-On demurrer to petition.

The allegations of the petition appear in the decision.

E. P. Norton, for plaintiffs.

Ferguson, Long & Bradstreet, for defendants.

GHOLSON, J. The plaintiffs were assigned as counsel to defend two prisoners, indicted for burglary, in the court of common pleas of Hamilton county. The assignment as counsel was made on the ground that the prisoners were unable to employ counsel, and in pursuance of a law requiring it to be done in such a case. The plaintiffs acted as the counsel of the prisoners, and now claim to recover a fee of $200 for such services. It is stated that the bill for that amount was presented to the county commissioners, and payment refused. To the petition setting forth the above facts there is a demurrer. The action, on the facts as presented, can only be sustained on the ground of an obligation or duty, imposed either by law or contract, on the part of the county, to pay a reasonable compensation for the services. If the action can be sustained it would devolve upon the court, or a jury under its direction, to assess the value of the services rendered by the plaintiffs.

It is made the duty of the court to assign counsel to prisoners who have no means with which to pay for such aid in

R. D. and J. H. Handy v. Commissioners of Hamilton County,

It is the duty of the For that purpose they control, and while en

the defense of a criminal charge. counsel, who may be assigned, to act. are officers of the court, and under its joying the rights and privileges of attorneys, they can not properly refuse to perform the duties imposed by law. Acting, in this respect, as public officers, in analogy to all other cases, it would be reasonable to expect that the law would regulate the mode of compensation.

The only provision found in the law on the subject, appears to have had its origin in some abuse in paying such claims, by the auditor, and to have been intended as a guard, or restriction, as to any future payments. The auditor is prohibited from auditing, or allowing, any account or bill for such services, until it has been examined and allowed by the county commissioners, and the amount allowed for the services certified. But can it be supposed that the mode here prescribed for obtaining an allowance of compensation for a service in its nature public, can be disregarded, and that the party can resort to a mode of fixing a compensation as in the case of a transaction between individuals? It rather appears to me that had no mode been prescribed, had no one been authorized by law to make the allowance, there would have been no remedy. I am clearly satisfied, that the mode prescribed must be pursued, and the only compensation which can be recovered is that allowed by the county commissioners.

The petition, in this case, only states that the bill, for the services, was presented to the county commissioners, and payment refused. It is not stated that they were required or refused to make an allowance for the services. This it would appear to have been their duty to do, the amount to be determined by their discretion, depending on the nature and character of the case, and the amount of the services; with a view, also, to the benign object of the law, the securing aid and protection to the poor and helpless, against what might possibly be an unjust and malicious charge; it being better that ninety-nine guilty should escape than that one innocent man should be unjustly punished. For this end, competent

R. S. Newton v. D. W. Clark, et al.

counsel should be assigned and adequate compensation allowed.

But had the commissioners refused to make the allowance asked, or any allowance, it would not follow that an action would be the proper remedy. In no view, in my judgment, can the present action be maintained, and the demurrer must be sustained.

Demurrer sustained, and judgment for defendants.

R. S. NEWTON v. D. W. CLARK, ET AL.

Where money is raised by mortgage upon separate property of the wife, and is received by the husband, as the wife's agent, to be reinvested for her benefit, and is so reinvested, the fact of its passing through the hands of the husband, is not such a change of its character as entitles his creditors to subject it to the payment of their claims.

SPECIAL TERM.-Action to subject moneys and credits of the wife to the satisfaction of a judgment obtained against the husband.

The facts sufficiently appear in the decision.

Mills & Hoadly, Ketchum & Headington and J. B. Eaton, for plaintiff.

Corwin & Probasco and Stallo & Leake, for defendants.

STORER, J. The plaintiff files his petition, averring that he has recovered a judgment against the defendant, Clark, for $803, in the court of common pleas of Hamilton county; that execution has issued thereon, and no property, real or personal, can be found to satisfy it. He further charges that Gregory, one of the defendants, is indebted to Clark, or holds in trust for him, a large sum of money that ought to be subjected to the payment of the plaintiff's judgment.

R. S. Newton v. D. W. Clark, et al.

The defendants severally answer, denying the allegations of the petition; and testimony has been offered to establish them.

It appears that Clark, several years prior to the recovery of the judgment against him, was married to the widow of John Taylor, who then held, in her own right, a valuable real estate; that during her coverture, she joined her husband, Clark, in mortgaging her estate, the money raised upon which, by her consent, was invested in other property for her benefit, in the transfer of which the agency of Gregory appears also to have been employed for the benefit of Mrs. Clark. The money loaned upon the mortgage was received by the husband, who acted throughout the transaction as the agent of his wife.

It is claimed by the plaintiff that the possession of the money, derived from the loan, having been in the defendant, Clark, it became thereby his own property; that, being thus reduced into possession by him, the right of the wife was eo instanti divested, and the funds became subject to the payment of the husband's debts.

At common law, there can be no doubt that the separate property of the wife, at the time of her marriage, if afterward reduced to the husband's possession, vests in him, and will pass to his heirs; and the rule applicable to personal chattels applies to the proceeds of the wife's real estate, if they come to the husband's hands without fraud or coercion on his part. The fact that the husband controls the fund, is the best evidence of his right to claim it. It is presumed that he then holds it with the approbation of his wife, who is regarded, as to her separate estate, as a feme sole, and may dispose of it as she pleases.

But the rule referred to is greatly modified, if not entirely changed, in Ohio by statute.

By the law of 1846, Swan, 712, it is enacted that the interest of the husband in his wife's real estate, whether owned by her at the time of marriage, or subsequently acquired, shall not be taken" by any process of law, or in

R. S. Newton v. D. W. Clark, et al.

chancery, for the payment of his debts, during the life of the wife, or the life or lives of the heirs of her body." It is also provided, that the husband shall not alien his interest in his wife's real estate during her life, or that of the heirs of her body; and all such alienations, if made, are declared void. It is further provided, that the husband's interests in the personal estate of the wife, of every kind, "shall not be liable for his debts, unless he shall have first reduced the same to his possession, so as, by the rules of law, to have become the owner thereof, in his marital right."

The legislature have thus very clearly indicated that it was their intention to save the estates of married women, not only from being subjected to pay the debts of their husbands, but to prevent, altogether, the disposition thereof by the husband, to the extent, even, of his own life-estate. Their object, undoubtedly, was to keep the wife's property where the husband found it; and though, by his wife's permission, he may enjoy the possession of her estate and take the profits, he is her trustee, nevertheless, and in a proper case she may compel an account and secure the fund, if his management has put it in jeopardy, or impaired its value.

We suppose that the mere possession of the fund by the husband, however it might formerly have conferred title to the property, can not, under the laws we have referred to, create a right on his part, to control the fund for his own purposes; much less to subject it to his debts. There must be, in every case, the assent of the wife to the disposition of her property by the husband; and this may be either express or implied.

If she voluntarily bestows it, she may impart, as well to him as to a stranger, what was only hers to grant. If she permits him to use her personal property with the knowledge of the purposes to which it is applied, and third parties are defrauded, or their interests injuriously affected, she will be stopped from setting up her claim; 2 Ohio, 506, 510, Smiley and wife v. Wright; 6 Ves. 174, Evans v. Bicknell; 1 Dru. & Warren, 167, Jones v. Kearney; in which Lord Chan. Sugden, states the principle fully.