author: Dickman, C. J.

text:
    Byers v. Schlupe et al.

      Attachment — Non-resident partnership — Service of summons on.

    1. In a civil action for the recovery of money, the plaintiff may, on the ground that the defendant is a non-resident of this state, have an attachment against the property of a defendant partnership of which all the members reside outside this state, which was formed for the purpose of carrying on business in this state, and which has a usual place of doing business in this state.
    2. In an attachment against the property of such a non-resident partnership, it may be sued by its company name, and service may be had by leaving a copy of the summons, with the indorsements thereon, at its usual place of doing business in this state.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Marion county.
    This petition in error is prosecuted by Alexander M. Byers, plaintiff: in error, against Samuel Schlupe, assignee of The New Philadelphia Pipe Works Company, Ezra Nicholson, The Cleveland, Lorain & Wheeling Railroad Company, Timothy Fahey, Bryan and Prendergast Brothers, W. and J. F. Prendergast, H. T. Van Fleet, Samuel R. Bullock'& Company, and numerous others, defendants in error, from the circuit court of Marion county, Ohio, upon a finding of facts and conclusions of law as made, by that court. The parties plaintiff: and defendant were the same in the circuit court as in this court.
    The finding of facts and conclusions of law are as follows:
    “This day came the papties and with their attorneys, and this cause came on to he heard upon the respective pleadings filed herein, and the evidenee; upon consideration thereof and upon application of said plaintiff, the court do find from the evidence the following facts, viz.: That the funds now in the hands Of the sheriff, to-wit: $5,100.00, arose from the sale of the personal property of the partnership firm of Samuel R. Bullock & Company, upon an order of sale for that purpose duly issued herein by consent of all parties hereto; that on the 30th day of August, A. D. 1887, the New Philadelphia Pipe Works Company, a party herein, commenced an action in the .court of common pleas of Marion county against the said Samuel R. Bullock & Company in their firm name, and none other, and for the purpose of procuring an order of attachment accompanied the filing of the petition with an affidavit, alleging in said affidavit the following facts and none other: ‘ Ezra Nicholson being duly sworn, says that he is the secretary and treasurer of the New Philadelphia Pipe Works Company, an incorporated company under the laws of the state of Ohio; that the claim sued upon in the action was upon a contract for an amount of water pipe sold and delivered to said Samuel R. Bullock & Company, a partnership formed for the purpose of doing business in Ohio; that said claim was just and that affiant believes the said The New Philadelphia Pipe Works Company ought to recover $29,947.04 and interest from August 20, 1887; that the defendants are nonresidents of the state of Ohio.’ Upon said affidavit an order of attachment was issued to the sheriff of said county, which was received by him and was on the same day levied by him upon the personal property sold aforesaid.
    “That afterwards, on the same day Timothy Eahey commenced an action in said common pleas court against said Samuel R. Bullock & Company upon a claim which, was not at that time due, accompanying the filing of his petition with an affidavit, alleging in said affidavit the following facts and none other: ‘Timothy Pahey being sworn according to law, deposes and says that he has commenced an action against the said Samuel R. Bullock & Company in the court of common pleas of Marion county, Ohio, to recover on a certain bill of exchange, drawn by the said Samuel R. Bullock & Company; that said claim is just, and that the same will become due on the 11th day of September, A. D. 1887, and that there will then be due upon the same the sum of $2,500, and that the said Samuel R. Bullock & Company has sold and conveyed and disposed of its property with fraudulent intent of hindering and delaying its creditors in the collection of their debts, and that said Samuel R. Bullock & Company is about to move its property out of said county of Marion, to the effect of hindering and delaying its creditors in the collection of their debts;’ that at the same time an order of attachment was duly allowed in said action by the Honorable John A. Price, one of the judges of said court upon the said Timothy Pahey, giving- bond in the sum of $5,000, to the satisfaction of the clerk of the court of common pleas of Marion county, Ohio, conditioned according to law; which order of allowance was duly entered upon the journal of said court; that at the same time the said Timothy Pahey executed his bond as provided in said order of allowance to the acceptance of said clerk; upon said affidavit, allowance as aforesaid, and giving bond aforesaid, an order of attachment was issued to the sheriff of said county, which was received by him and was on the same day by him levied upon the personal property sold as aforesaid.
    “Afterwards, upon the same day, an action was commenced by Bryan and Prendergast Bros, against Samuel R. Bullock and William S. Mercer, partners, as Samuel R. Bullock & Company, and accompanied the filing of the petition herein with an affidavit, alleging in said affidavit the following facts and none other: ‘James F. Prendergast being duly sworn, says that he is one of the above named plaintiffs who are partners doing business under the firm name of Bryan and Prendergast Bros; that .the defendants are indebted to said plaintiffs on an account for goods sold and delivered to defendants at their request; that said claim is just; that the amount which said plaintiffs ought to recover from said defendants, as affiant believes, is one hundred and one dollars and ten cents, with interest from the 30th day of August, 1887, and that said defendants are non-residents of the state of Ohio.’ Upon said affidavit an order of attachment was issued to the sheriff of said county, which was received by him, and was on the same day by him levied upon the personal property sold as aforesaid.
    “Afterwards, on the same day, W. and J. F. Prendergast commenced an action in • said court against Samuel R. Bullock & Company, and accompanied the filing of the petition therein with an affidavit, alleging in said affidavit the following facts, and none other: ‘Jame'; F. Prendergast being duly sworn, says that he is one of the plaintiffs in the foregoing action; that the said plaintiffs are partners doing business under the firm name of W, & J. F. Prendergast; that the defendants are a partnership firm formed for the purpose of doing, business and holding property in the state of Ohio, and the usual firm name which they have assumed is Samuel R. Bullock & Company; that the said defendants are indebted to the said plaintiffs on an account for goods sold and delivered to defendants at their request; that said claim is just; that the amount which plaintiffs ought to recover, as affiant believes, is one hundred and thirty-four and 67-100 dollars, with interest from the 29th day of August, 1887; and that said defendants are non-residents of the state of Ohio; ’ upon said affidavit an order of attachment was issued to the sheriff of said county, which was received by him, and was on the same day by him levied upon the personal property sold as aforesaid.
    “Afterwards, on the 7th day of September, 1887, The New Philadelphia Pipe Works Company filed an amended petition in said case and accompanied the same with an affidavit, alleging in said affidavit the following facts and none other: ‘Ezra Nicholson being’ first duly sworn, says that he is the agent duly authorized for the plaintiff in this action, which is a corporation organized under the laws of Ohio; that the defendants, who are a partnership organized for the purpose of doing business and holding property in Ohio, are indebted to plaintiff on a contract for the sale of certain per- ■ sonal property and goods, to wit: iron water pipe and special casting; that the amount of plaintiff’s claim is twelve thousand one hundred and fifty-six dollars in addition to the amount now due to plaintiff; that said $12,156.00 will become due September 20th, 1887; that said claim is just, and that said defendants are about to make a sale, conveyance and disposition of their property with the fraudulent intent to cheat or defraud their creditors, and to hinder and delay them in the collection of their debts; that said defendants have purchased of plaintiffs and other parties large quantities of valuable property, the ownership of which they now disclaim, alleging and pretending that all said property or the greater part thereof is owned by a certain corporation called the Marion Water Works Company, organized at the instance of said defendants, and that said attempted transfer of title to such property is 'undertaken by defendants while they are still indebted to plaintiff in a. very large sum for the greater part of the very property so attempted to be disposed of and thereby placed beyond the reach of creditors.’
    “And thereupon another order of attachment was issued from said court and levied upon said property;' and afterwards, on the 11th day of November, 1889, a second amended petition was filed by the plaintiff in said cause, and with it there was filed an affidavit, alleging in said affidavit the following facts and none other: ‘ Thomas C. Willard being duly sworn, says that he is the Secretary of the New Philadelphia Pipe Works Company, a corporation duly organized and doing business under and by virtue of the laws of the state of Ohio; that the defendants, Samuel R. Bullock and William S. Mercer, were lately partners, doing business under the firm name and style of Samuel R. Bullock & Co.; that said defendants are indebted to said plaintiff upon a contract for iron pipe and other castings; that said claim is just, and that plaintiff ought, affiant believes, to recover the sum of twenty-four thousand one hundred and three and nine one-hundreths dollars, with interest at six per cent; eleven thousand nine hundred and forty-six and seventy one-hundreth dollars, from August 20th, 1887; and on twelve thousand one hundred and' fifty-five dollars from September,, 20th, 1887; and that said defendants are non-residents of the state of Ohio. ’ An order of attachment was issued thereon, which was also levied upon said property. That at the February term, A. D. 1889, of the court of common pleas aforesaid, the said The New Philadelphia Pipe Works Company obtained a judg-ment against the said Samuel R. Bullock & Co. upon the cause of action alleged in its petition and amended petition, in the sum of twenty-five thousand one hundred and eighty-seven dollars and ninety-five cents; that at the May term, A. D. 1888, the said Timothy Fahey obtained a judgment against the said Samuel R. Bullock & Company upon the cause of action alleged in his petition, in the sum of two thousand six hundred and twenty-one dollars and twenty-five cents.
    “That at the January term, 1888, the said Bryan and Prendergast Brothers obtained a judgment against the said Samuel R. Bullock & Company upon the cause of action alleged in their petition, in the sum of one hundred and three dollars and eighty-eight cents. That at the January term, A. D. 1888, the said W. and J. F. Prendergast obtained a judgment against the said Samuel R. Bullock & Company upon the causé of action alleged in their petition in the sum of one hundred and thirty-eight dollars and thirty-four cents.
    “That prior to the October term, A. D. 1888, of the court of common pleas of Marion county, • a large number of judgments were obtained by certain laborers against the said Samuel R. Bullock & Company, and were each asserting liens upon the personal property sold as aforesaid, and iñ the case of The. New Philadelphia' Pipe Works Company against Samuel R. Bullock & Company by consent said laborers, represented by one H. T. VanEleet, were made parties defendant, and between said parties such proceedings were had, that at the October term, 1888, of the said court, the court made the following order and decree;
    “This day this cause came on to be heard upon the answer and cross petition of the defendants, Jacobs. Brady and others (laborers represented by H. T. VanFleet), and the evidence, and was submitted to the court; on consideration whereof, and the court being fully advised in the premises, find for said defendants, and that their claims are for labor performed for the defendants, Samuel R. Bullock & Company, and that they are valid liens upon the property taken in attachment in this action, and first in order of priority; ’
    “That at the February term, 1889, of said court ■of common pleas, the court made the following decree : ‘It was agreed by the parties, plaintiff, and said defendant, Alexander M. Byers, that the labor, claims of the seventy-seven' defendants heretofore found to be the first lien on the property attached in this case as against the said plaintiffs be and the same by agreement and confession made in open court, declared the first lien on said property so attached and in controversy in this cause, as against any claim, rights, demands, legal or equitable of said Alexander M. Byers;’ that each of said orders and decrees remain in full force and effect; that on the 28th day of November, A. D, 1887, the said The New Philadelphia Pipe Works Company assigned the one undivided fourth part of its claim against Samuel R. Bullock and Company to one Ezra Nicholson, by a written transfer, in the words and figures following, to-wit: ‘ The New Philadelphia Pipe Works Company hereby assign and transfer to Ezra Nicholson an undivided one-fourth part of all its claim against the late firm of Samuel R. Bullock and Company, which claim is now in suit in the court of common pleas of Marion county, Ohio, and also assign one-fourth part of all moneys that may be realized from or upon said claim or out of said suit, through proceedings in attachment, suit or otherwise. * *
    Afterwards it assigned a portion of its claim in said case to the Cleveland, Lorain and Wheeling Railroad Company; assignment was filed in the case of The New Philadelphia Pipe Works Company v. Samuel B. Bullock, but is now lost and was never recorded by the clerk. The amount so assigned was $2,848.43, with interest.
    Afterwards, on the 3d day of August, A. D. 1888, the said company assigned the balance of its claim to Alexander M. Byers by an instrument in writing, of which the following is a copy:
    “For value received, we hereby sell, transfer and assign to Alexander M. Byers, our .claim against Samuel R. Bullock & Company for pipe delivered to them at Marion, Ohio, which claim is now .in suit in the common pleas court at Marion, Ohio, in an action pending, The New Philadelphia Pipe Works Company are plaintiffs, and Samuel R. Bullock & Company et al., are defendants, except so much of said claim as we have heretofore assigned and transferred to E. Nicholson for $5,000, and to C. L. Cutter, Treasurer of the Cleveland, Lorain and Wheeling Railroad Company for $2,848.43 with interest. And we hereby authorize and empower said Byers to be substituted in our place in said action, and to prosecute, adjust and settle the same, and having paid himself the amount now due him from us, being the sum of $16,381.42, with interest; and having paid all costs and attorney’s fees in the prosecution of said case, if there shall be any balance received by him over the amount due him as aforesaid, such balance shall be held subject to our order.”
    “That the said assignment to Ezra Nicholson and Alexander M. Byers was entered by the clerk of said court upon the execution docket of said court. Upon the facts there found, the court do find that the costs made in the case of The New Philadelphia Pipe Works Company against Samuel R. Bullock & Company et al. (No. 4939), is the first and best lien.
    “That the costs made in this action is the second best lien.
    “That the judgment and costs of Timothy Fahey, with interest thereon to the date of the sheriff’s sale, is the third best lien.
    “That the judgment and costs of Bryan and Prendergast Bros., with interest thereon to the date of the sheriff’s sale, is the fourth best lien.
    “That-the judgment and costs of the laborers, represented by II. T. Van Fleet, with interest thereon to the date of the sheriff’s sale, is-the fifth best lien.
    “ That the judgment of The New Philadelphia Pipe Works Company, with interest thereon to the. date of the sheriff’s sale, is the sixth best lien.
    “It is therefore ordered, adjudged and decreed that the said sheriff out of said fund pay : • ‘
    “ First — All costs in the case of The New Philadelphia Pipe Works Company against Samuel R. Bullock & Co., to wit, $663.67.

      “Second — All the costs of this action, to wit, $344.78.

      “Third — To Timothy Fahey, the amount of his judgment and costs with interest, to wit, $2,933.58.

      “Fourth — To Bryan and P.rendergast Bros., the amount of their judgment and costs, with interest, to wit, $188.82.

      “Fifth — To PI. T. Van Fleet, the amount of the laborers’ judgment and interest, to wit, $3,596.29.

      “Sixth — To the assignee of The New Philadelphia Pipe Works Company the amount of the judgment with interest, to-wit, $-. ”
    To all of which the said The New Philadelphia Pipe Works Company, Alexander M. Byers, Ezra: Nicholson, and the Cleveland, Lorain & Wheeling Railroad Company, each then and there excepted.

      Marvin & Cook, for plaintiff in error.
    The statute has nothing to do with residence; it provides for service upon a firm — section 5042 — by leaving a summons at its usual place of business. Notice, it does not say at its usual place of residence, but at its usual place of business.
    Now, the law of attachment, section 5521, provides that when the defendant, or one of several defendants, is a foreign corporation, or a nonresident of this state, then this attachment may issue. ,
    The mere fact that they are organized as a firm does not change their place of residence. The attachment law refers to residence. The law in regard to service of summons relates to place of business. It is not the creation of a new being, or a legal entity, but it is the permission awarded by law to the making of service upon the so-called firm at its usual place of business. '
    "We desire the court to give special attention to the position that we take with reference to residence and place of business. Summons may be had at a place of business, but place of business does not make residence; and the first ground of attachment does provide and does support the affidavit named in this case in order to secure the attachment that the defendant is non-resident of the state; and if non-resident, then the attachment was issued with authority of law. Grady v. Gosline & Barbour, 48 Ohio St., 670; 45 Ohio St., 228.

      Charles C. Fisher, for defendants in error, who are creditors, also, filed a brief, making substantially the same points as counsel for plaintiff in error.
   Dickman, C. J.

The main question that claims our consideration is, whether the court of common pleas, by virtue of the affidavit which accompanied the filing of the petition of The New Philadelphia Pipe Works Company, on August 30, 1887, acquired jurisdiction and was authorized by law to issue the order of attachment against the property of the partnership firm of Samuel R. Bullock & Company. The action was commenced on the last named day against the defendants in their firm name and none other; and the affidavit in attachment alleged the following facts, and none other: “Ezra Nicholson, being duly sworn, says that he is the secretary and treasurer of The New Philadelphia Pipe Works Company, an incorporated company under the laws of the state of Ohio; that the claim sued upon in the action is upon a contract for an amount of water pipe sold and delivered to said Samuel R. Bullock & Company, a partnership formed for the purpose of doing business in Ohio; that said claim is just, and that affiant believes that the said New Philadelphia Pipe Works Company ought to recover $29,947.04, and interest from August 20,1887; that the defendants are non-residents of the state of Ohio.” The record discloses that the partnership was composed of Samuel R. Bullock and William S. Mercer, and that neither of the individual members of the firm resided in Ohio at the time the order of attachment was issued.

Section 5011, of the Revised Statutes, provides that: “A partnership formed for the purpose of carrying on a trade or business in this state, or holding property therein, may sue or be sued by the usual or ordinary name which it has assumed, or by which it is known; and in such case it shall' not be necessary to allege or prove the names of the individual members thereof.”

By section 5042, of the Revised Statutes, regulating the manner of service and return of summons, it is provided that: “The service shall be by delivering, at any time before the return day, a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence, or, if the defendant is a partnership sued by its company name, by leaving a copy at its usual place of doing business.”

And under section 5521, of the Revised Statutes, among the grounds upon which an attachment may issue, the plaintiff, in a civil action for the recovery of money may, at or after the commencement thereof — if the claim is a debt or demand arising upon contract, judgment or decree — • have an attachment against the property of the defendant,- “when the defendant, or one of several defendants, is a foreign corporation, or a non-resident of this state.”

In view of these statutory provisions, the validity of the attachment called in question must evidently depend upon whether the partnership of Samuel R. Bullock & Company, sued by the firm name only — neither of its members then residing’ in Ohio — was a “defendant non-resident of this state” at the time the order of attachment was issued, within the meaning of the language of the statute.

The privilege extended by the statute to sue a partnership by the usual or ordinary name which it has assumed, or by which it is known, is not to be confined to such as may be formed within this state for the purpose of carrying on a trade or business, or holding property herein. Indeed, a partnership may be formed in another state for accomplishing the same purpose in this state; its component members may all reside in the state where it is formed, and if it does business in this state, it may be sued by its company name, and served by leaving a copy of the summons at its usual place of doing business in this state. It may be thus sued and thus served, irrespective of the residence of those who compose it. ■

The fact, however, that such partnership engages in business in this state, that it may be sued in the company name, and that it may be served by leaving a copy of the summons at a prescribed place, are not the sole factors for fixing and determining its residence when it is sought to reach its property by attachment for the benefit of its creditors. The members of a partnership do not form a collective whole, distinct from the individuals composing it; nor are they collectively endowed with any capacity of acquiring rights or incurring obligations. The rights and liabilities of a partnership are the rights and liabilities of the partners. 1 Lind. Part., 5. It is not a creation in which the identity of the individual members is merg’ed and lost, in seeking- to enforce against them the obligations of the firm.

A partnership is not, in our judgment, a legal entity, having, as such, a domicile or residence separate an d distinct from that of the individuals who constitute it. To what extent residence may be affirmed of a partnership as such, was considered by the court in Fitzgerald v. Grimmell, 64 Iowa, 261. In the dissenting opinion there is much force, and we cite the same with our concurrence : , ‘‘Residence,’’ says Adams, J., “in my opinion can be predicated only of a person natural or artificial. A partnership, as distinguished from the members composing it, is neither. Besides, it appears to me that, in any view, the mere fact that a partnership maintains for the transaction of its business, an established agent in a county where neither partner resides, cannot constitute the partnership a resident of such county. There is no pretense that an individual would become a resident of a county by merely transacting business therein through an established agent, and I am not able' to see that a different rule should be applied to a partnership.”

A principal reason for authorizing a suit against a partnership by its company name, to wit, the inability oftentimes to find out the names. of constituent partners, is applicable alike to domestic and foreign partnerships. In view of such inability —more apt to arise where the partners all reside in another state — the statute specifically provides, that when a partnership is sued by its usual or ordinary name, “it shall not be necessary to allege or prove the names of the individual members” of the firm. Whether the partnership was formed in this state or in another state, the names of the individual members are not required to be alleged ; and whether a defendant partnership should be deemed a non-resident of the state in an attachment of its property on the ground of non-residencé, should depend upon the fact of the non-residence of the constituent members, and not upon the mere mention of names of those who constitute the firm. It being conceded, that the first attachment in favor of The New Philadelphia Pipe Works Company, would have been valid, if the proceeding had been against Samuel R. Bullock and William S. Mercer, partners, as Samuel R. Bullock & Company, with an accompanying affidavit that the defendants were non-residents of Ohio, the failure to allege the individual names of the partnership, should not, we think, render the attachment invalid, when the affidavit states the fact that the defendants were nonresidents of the state, and the statute renders it unnecessary to set forth the names of the partners. As an attachment mayissueon the ground that the defendant is a non-resident of the state, it would seem to be the policy of the law, when the defendants reside in a foreign jurisdiction, and their names are unknown to the plaintiff, and they are doing business in this state under a partnership name, that creditors might protect their rights by attachment proceedings against the defendants in the name by which they elect to hold themselves out to the public, and obtain credit.

It may perhaps be urged, that although the individual partners composing a firm reside in another state, the partnership is to be deemed resident in a state where it has a "usual place of doing business.” But, the statute in prescribing the manner of service and return of summons, recognizes both a place of residence and a place of business. And the one is not to be regarded as identical with the other. A person or a number of persons may be domiciled or reside in one state and have an agent and place of doing business in another, even as a corporation domiciled within the state by which it was created, may have its agent and a usual place of doing business in another state. The principal action may exist, and the partnership, under the company name, maj^ be brought into court through actual service by leaving a copy of the summons at its usual place ofo business, while an ancillary proceeding by attachment to secure the rights of creditors, may be sustained by reason of the fact of non-residence ; and when the attachment issues, it is not necessary that there should be constructive service on the defendants by publication, but there may be service of process at the usual place of business which they have established in this state. Smith v. Hoover, 39 Ohio St., 249.

It follows, from the foregoing considerations, that the affidavit upon which the first attachment was issued in favor of The New Philadelphia Pipe Works Company, was adequate to give the court jurisdiction to issue the attachment, and thereby acquire jurisdiction over the property.

Subject therefore to the liens for costs as adjudged by the circuit court, the claims of the laborers represented by H. T. Van Fleet, should be .held valid liens and'first in order of priority upon the property taken in attachment; but, subordinate to such claims, the judgment in favor of The New Philadelphia Pipe Works Company should be the next best lien upon the property attached, or upon the funds derived from its sale.

The first attachment by The New Philadelphia Pipe Works Company being deemed valid upon the facts set forth in the record, it becomes up-necessary to consider, whether objections to the attachment that may be taken advantage of by the defendants, Samuel R. Bullock & Company, can also'be available to other creditors of those defendants.

The judgment of the circuit court should be reversed, and judgement rendered for the creditors of Samuel R. Bullock & Company in accordance' with the priorities of lien as stated in this opinion.

Judgment accordingly.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Sandrock v. Columbus et al.

      Street assessments — Frontage—How determined.

    For the purpose of determining the frontage of a lot 'with a view to its assessment, reference must be had to its situation at the time the improvement is made, and not to changes subsequently made.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Franklin county.

      Jones & Jones, for plaintiff in error.

      G. H. Barger, Florizel Smith and E. C. Irvine for defendants in error.
   By the Court.

This case was in this court a short while since, and was then disposed of in connection with the case of Haviland v. Columbus, 50 Ohio St., 471. Having been remanded to the circuit court for further proceeding’s, it appears from the record since made, that an answer was filed in which it is admitted that an assessment has been made on the property of the plaintiff to meet the bonds issued in payment of the cost of the improvement; the action having’ been brought to enjoin this assessment on the ground that the act under which it was made is invalid, and that the assessment exceeds any and all benefits to the property and is in excess of its actual value and its value as assessed for' taxation. The answer then states that the assessment was made by the 'front foot, and upon the property of the plaintiff for the number of its front feet upon the improvement. The ease was heard and submitted to the court upon the pleadings and an ag’reed statement of the facts, which by a bill of exceptions is made a part of the record. The court on consideration dismissed the petition. Whereupon t£ie plaintiff again brought the case into this court, claiming that the judgment upon the agreed statement of facts, is erroneous • and should be reversed. Prom the statement it appears that it was ag’reed:

“1. That said plaintiff’s lot at the date of said improvement was vacant, and when platted had 371 feet on Mound street, 371 feet on the alley in the rear, and 150 feet on Champion avenue.
“2. That after the making of said improvement, the plaintiff, erected two houses on the rear end of said lot next to the alley, one occupying 36.25 feet and the other 33.25 feet, and each, fronting on Champion avenue, leaving 80.50 feet of the' said lot on Champion avenue vacant.
“It is also agreed that if said plaintiff were called, he would testify that he does not intend to erect upon said lot any more buildings facing Champion avenue. ’ ’ The assessment on the lot is for its entire length on Champion avenue, 150 feet, at the rate of $4.2762 per foot. This is erroneous. The assessment should be made with reference to the front of the property at the time the improvement was made, and not with reference to any subsequent changes. The agreed statement, taken in connection with a- plat made part of. the bill of exceptions, shows that, at the time the improvement was made, the • lot lay lengthwise on Champion avenue, and fronted 37i feet on Mound street. So that, under. the construction given the statute, regulating assessments by the front foot, in Haviland’s case, it should, for the purpose of an assessment on Champion avenue, have been deemed as turned, so as to front as many feet on the improvement, as it in fact fronts on Mound street, and no more.

The judgment of the circuit court must therefore be reversed, and the assessment made on the lot of the plaintiff set aside, and an assessment made for the number of 37i feet, at the rate fixed by the ordinance, $4.2762 per foot.

Judgment accordingly.


text:
    Hunter, Treasurer v. Borck.

      Delinquent Taxes — Compensation of County Treasurers — Duties of County Treasurers.

    1. The penalty of five per centum as compensation to county treasurers, provided in section 1094 of the Revised Statutes, is to be limited to the original delinquent tax, and is not collectible on any subsequent penalty that may be charged upon the duplicate against the property on account of such original delinquency.
    2. To entitle county treasurers to the compensation of five per centum allowed under section 1094 of the Revised Statutes, they must proceed to collect and in fact collect the delinquent taxes by distress, or as provided by sections 1097, 1102 and 1104 of the Revised Statutes; or by special effort in person or through agent.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Lucas county.
    William and Charlotte Barrett were the owners by fee-simple title 'of a lot of land in the city of Toledo, Ohio. All taxes and assessments levied upon said land, and collectible upon the duplicate of Lucas county prior to the year 1891, were duly paid. The one-half of the taxes and assessments for 1891, payable on the 20th day of December of that year, were also paid. The remaining half, payable on the 20th day of June, 1892, they were unable to pay, and the same were by the treasurer returned delinquent., Therefore the auditor added to said unpaid half of said taxes and assessments a penalty of fifteen per cent, of the amount thereof. Said assessments were almost entirely for the paving of the streets adjacent to said lot. Bonds had been issued by the City of Toledo in anticipation of the collection of said assessments, bearing five per cent, interest, which interest was included in said assessment. In addition to the fifteen per cent, penalty, the auditor also charged five per cent, upon the said one-half of said paving assessments charged against said lot for the year 1891 remaining unpaid, as interest thereon for one year. The total amount of said last- half of said taxes and assessments for the year 1891, with the fifteen per cent, penalties and interest added, was entered upon the duplicate for 1892 as the delinquent taxes charged against the land for the year 1891, to be paid on the 20th day of December of the year 1892. The auditor also charged against this lot upon said duplicate the one-half of the taxes and assessments levied thereon for the year 1892, also payable on the 20th day of December aforesaid. These aggregate amounts William and Charlotte.Barrett were unable to pay, and the auditor charged against said property the remaining half of the taxes and assessments levied thereon for the year 1892; entered the whole upon the delinquent sale list, and advertised the aggregate amount as being the delinquent taxes due from said land and the penalties thereon, charged agreeably to law, with notice that unless said taxes and penalties were paid on the third Tuesday of January following, the treasurer would publicly offer the land for sale to enforce such payment. Default being made in payment, the treasurer offered the land for sale on the 17th day of January, 1893, and an individual bid for said lot the precise amount advertised as the delinquent taxes due from the land, with the penalties charged thereon agreeably to law. The treasurer refused to accept the bid or make the sale, unless the bidder would pay him a further amount equal to five per cent, thereon, by him claimed to be a penalty due him as treasurer, as compensation for his services in making the sale and receiving the purchase money, for the use of Lucas county. The bidder refused to pay the additional sum, and said land was by the treasurer returned unsold.
    The auditor then charged against said lot a penalty of fifteen per cent, of the one-half of the taxes for 1892 levied thereon, which were payable on the 20th day of December of that year; entered the same upon said duplicate, and stated upon said duplicate that the aggregate of the taxes, assessments, fifteen per cent, penalties and five per cent, interest already mentioned were the total taxes charged against said lot, and were payable on the 20th day of June, 1893. William and Charlotte Barrett thereafter sold and conveyed said lot to defendant in error, Elizabeth Borck, by deed executed and delivered on the 7th day of May, 1893. By mutual agreement the amount stated upon said duplicate as the taxes charged against said land was by defendant in error retained from the purchase money, and the entire balance of the purchase price was by her paid to her grantors. Forthwith, upon receipt of her deed, and leaving the same with the recorder for record, defendant in error at the treasurer’s office offered to pay the treasurer the total amount charged against said land upon the duplicate of 1892. He refused to receive her money or give receipt therefor, unless she would pay him an additional sum of five per cent, of the entire amount of taxes, assessments, penalties and interest, by him claimed to be a penalty due him as compensation for his services in collecting said moneys, for his own individual use as treasurer.
    It is admitted that in June, 1892, and again in December, 1892, the plaintiff in error, Samuel A. Hunter, treasurer of Lucas county, handed William Barrett a statement of the amount at those respective dates, charged upon the duplicate of Lucas county against said land, and requested payment. In November, 1892, he mailed to said William Barrett a printed notice, addressed by said plaintiff in error as treasurer, to taxpayers generally, of which the following is a copy:
    “Important Notice to Tax Payers.”
    “Your December taxes must hereafter be paid by December 20th, or five per cent penalty must he charged thereon. The Treasurer’s power to waive that penalty (or to extend time of payment without penalty, as has been the practice heretofore), ceased when this office came under the provisions of the Garber salary law, on the first Monday of September, 1892. All fees, penalties and commissions are now the property of the county, and I have no more right to waive the penalty hereafter, than I have to discount your tax five per cent. Please arrange to pay early and avoid the rush.
    “Respectfully,
    “S. A. Hunter,
    ‘ ‘Treasurer.

    “Toledo, Ohio, Nov. 1st, 1892.”

    Upon the. refusal of plaintiff in error to receive said money and give a receipt for the full taxes charged ag’ainst said land upon the duplicate for 1892, defendant in error commenced her action against him in the court of common pleas of Lucas county to compel such performance, and enjoin all attempts to collect the five per cent, penalty- aforesaid. ■ - •

      In the circuit court the cause was heard upon the demurrer to the petition of the plaintiff below; Elizabeth Borck. The demurrer was overruled, and the defendant below, Samuel A. Hunter, treasurer, not desiring to plead further, the cause was submitted to the court. The court found that the statements of the petition were true, and ordered that the defendant, as treasurer, receive the $214.35 paid by plaintiff, in full satisfaction and discharge of all taxes, assessments and penalties charged upon the duplicate of Lucas county for the year 1892, against the lot of land described in the petition, to wit: The northwesterly 20 feet of lot number 1507, in the Vistula division of the city of Toledo, and be perpetually enjoined from returning said land as. delinquent on account of the non-payment by the plaintiff of the five per cent, penalty in plaintiff’s petition specified, and from in any other manner attempting to collect the five per cent, penalty aforesaid.
    To reverse the judgment of the circuit court this proceeding in error is instituted.

      J. A. Barber, for Plaintiff in Error.

      Bissell & Gorrill, for Defendant in Error.
   By the Court.

It is provided by statute that each person charged with taxes on a tax duplicate, in the hands of a county treasurer, may pay the full amount of such taxes on or before the twentieth day of December, or one-half thereof on or before the twentieth day of December, and the remaining half thereof on or before the twentieth day of June, next ensuing. Revised Statutes, section 1091.

It is further provided by section 1094 of the Revised Statutes, as follows: “When one-half of the taxes, as aforesaid, charged against any entry, on a tax duplicate in the hands of a county treasurer, is not paid on or before the twentieth day of December next, after the same has been so charged, or when the remainder of such taxes is not paid on or before the twentieth day of June next thereafter, the county treasurer shall proceed to collect the same by distress or otherwise, together with a penalty of five per centum on the amount of taxes so delinquent (which penalty shall be for the use of the treasurer as a compensation for such collection); and in all cases where such half of any taxes, other than on real estate, has not been paid on the twentieth day of 'December, the whole amount of taxes, other than real estate, for the current year, so charged, shall he due and delinquent, and shall be collected in the manner and with the penalty provided in this section. ’ ’

And by section 2844, of the Revised Statutes : “When one-half the taxes charged against any entry of real estate shall not be paid on or before the twentieth day of December, in that year, or collected by distress -or otherwise prior to the February settlement, a penalty of fifteen per cent, thereon shall be added to such half of said taxes on the duplicate; and if said taxes and penalty, including the remaining half of such taxes, shall not be paid on or before the twentieth of June next thereafter, or collected by distress or otherwise prior to the next August settlement, the same penalty shall be charged on said last half of said taxes. ’ ’

It will be seen, that section 2844, regulating the penalty on non-payment of real estate taxes, contemplates an effort to collect by distress or otherwise, prior to the February settlement and the August settlement, not only the first and second half of the yearly taxes, but also a penalty of fifteen per cent. Section 1094, directs that the treasurer shall proceed to collect the delinquent taxes by distress or otherwise, with a penalty of five per centum on the amount thereof, for his own use, as a compensation for such collection.

The question, however, arises, shall the penalty of five per centum be had not only upon the taxes that are for the first time delinquent, but upon the penalty assessed thereon. We think the penalty of five per centum is to be limited to an original delinquent tax, and is not collectible on any subsequent penalty that may be charged upon the duplicate against the land on account of such delinquency. The statute is not to be construed as imposing a penalty upon a penalty. White v. Woodward, 44 Ohio St., 347. It is contended, however, that the five per centum is not to be regarded in the light of a penalty, but rather as a compensation to the treasurer. But such per centum is exacted under the statute, for non-payment of taxes due on the 20th of December and the 20th of June; and in the language of the statute it is designated as a penalty. It is a penalty applied in compensation of the treasurer, in like manner as out of the taxes on personal propertjq and the ten per centum penalty added thereto the treasurer, finder section 2856 of the Revised Statutes, is allowed for his services five per centum on the amount collected.

The five per centum penalty awarded to the treasurer by section 1094, was designed to stimulate his activity in collecting the taxes unpaid on the 20th of December and the 20th of June, so that, in making his semi-annual settlement with the county auditor, he might be able to report such taxes as paid, and not liable to come again upon the duplicate as delinquent. But to entitle the treasurer to the compensation allowed under section 1094, he must render the prescribed service. He must proceed to collect, and collect the delinquent taxes by distress or otherwise, together with the penalty of five per centum on the amount of taxes so delinquent.

It is conceded that the treasurer cannot earn his commission by merely standing behind the counter and receiving the tax the next day after the 20th of December. If he would proceed to collect, and collect the delinquent tax otherwise than by distress, he may collect by procuring a rule of court, as provided by section 1097 of Revised Statutes; or, by attachment and garnishee process as described in section 1102 of the Revised Statutes; or, by-action as provided in section 1104 of the Revised Statutes; or, by special effort in person or through agent, and not by simply holding himself out as ready to receive the taxes due, or making a formal request of the taxpayer, or giving notice to taxpayers generally to pay their delinquent taxes.

In the case at bar, the efforts made by the treasurer to collect the taxes and assessments were not such as would meet the requirement of the statute. No suit was begun; no attempt was made to collect by distress; and there was no resort to any other summary mode of procedure.

In June, 1892, and again in December, 1892, the plaintiff in error, as treasurer of Lucas county, handed to William Barrett a statement of the amount charged at those respective dates upon the .Explicate against the land, and reqxxested payment. And in November, 1892, he mailed to Mr. Barrett a' copy of the printed notice, signed by him as treasurer, dated at Toledo, November 1, 1892, addressed to taxpayers generally, and stating that their December taxes must thereafter be paid by December 20, or five per cent penalty would be charged thereon. But such action on the part of the treasurer, was not, in our judgment, such a proceeding’ to collect the taxes and assessment by distress or otherwise, as is requisite to entitle the treasurer to the five per centum penalty under section 1094.

Judgment affirmed.


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    Railroad Company v. Campbell.

      Railroad Companies — Use of Streets — Damages to abutting lot owner — Remedy, personal.

    The damages, for which a recovery is given by section 3283, Revised Statutes, are personal in character and do not pass to a grantee on a conveyance of the land.
    (Decided May 21, 1894.)
    Error to the Circuit Court of Butler county.
    The plaintiff below commenced suit in the common pleas against the defendant, and in his petition alleged, that he is the owner of a lot, one hundred feet square, at the northeast corner of the intersection of High and Fifth streets, in the city of Hamilton, Butler county. That, with the permission of the city, but without any consent of his, the defendants located and constructed their railroad tracks across the intersection of these streets and near the property of the plaintiff; that in so doing they raised the grades of the streets and materially injured his property by destroying access to it; and that, in operating their road, they cause large quantities of smoke, dust and sparks of fire, to be constantly thrown on to and over his lot, and cause loud and harsh noises and sounds to be made on and near his lot; for which he asked damages.
    The Cincinnati & Richmond Railroad Company, the company that located and constructed the tracks, among other defenses, averred, that since the commencement of the action, on May 30, 1889, the plaintiff by warranty deed and for a valuable consideration, conveyed his lot without any reservation to himself' to ~W. H. C. Campbell. A demurrer to this having been overruled, the plaintiff replied, that the conveyance was to his son, for love and affection, and for no other consideration. The case was tried to a jury, which at the close of the plaintiff’s testimony, by direction of the court, returned a verdict for the defendants, the court’s direction being placed on the ground, that the plaintiff having, as shown, conveyed all his interest in the property to his son, nothing remains to the plaintiff on which he can maintain his action. On error, the circuit court held that the common pleas erred in overruling the demurrer to the supplemental answer, and in instructing the jury to return a verdict for the defendants.

      Charles Darlington, for plaintiff in error.

      Morey, Andrews & Morey, for defendant in error.
   By the Court.

There was no error in the Circuit Court reversing the judgment. It is true that the plaintiff could not in the suit as brought recover compensation and damages for the taking or impairment of his easement in the streets named or either of them. This is settled by the previous decisions of this court. See Railway v. O'Harra, 50 Ohio St., 667, and cases there cited. The remedy of the landowner is, in such case, by a proceeding under section 6448, Revised Statutes, to compel condemnation. So that in this view it is immaterial whether the plaintiff had subsequently to the commencement of the suit, conveyed his property to another or not. But his petition was broader than a suit for compensation for the taking of his easement in the streets. It also sought a 'recovery for damages incidental to the running’ and operation of the road in such close proximity to his property, on and along the streets, as by the noise, dust, and sparks emitted from the locomotive, to greatly impair its value. Such damages are within the remedy provided by section 3283, Revised Statutes. They are personal in character and do not attend the land on a conveyance of it to another, so far as they have accrued at the time of the conveyance; and, the suit having been brought within the time limited, the pláintiff was entitled on his petition to recover such damages as he had suffered therefrom. So that while the common pleas did not err, as held by the circuit court, in overruling the demurrer to the answer, as the facts stated in it did not bar a recovery for consequential damages, it was right in holding that the common pleas erred in taking tlie case from the jury, as the evidence tended to show a right in the plaintiff to recover some such damages. On the trial, it will be the duty of the court to carefully distinguish between such dam- ' ages and such as are properly included in the compensation to be awarded for á taking of the easement in the street. The latter passed to the grantee under the deed; the former, to the time of the conveyance, can only, and may be recovered by the grantor.

Judgment affirmed.


author: Bradbury, J.

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    Jones v. State.

      Homicide — Change of venue — View by jury — Conduct of counsel and jtiry tn view— When waived by accused — Defense—Competency of evidence — Intention to kill — Burden of proof

    1. When the venue in a criminal cause has been changed, the court of common pleas sitting in the county to which the cause has been removed for trial, is authorized by sections 7264 and 7283, Revised Statutes, to send the jury, in a body, to the county in which the crime was committed and the indictment found, to view the locus criminis.

    2. Where, upon such view, counsel for the accused, and the prosecuting attorney, in the presence of the jury, caused measurements to be made, objects to be placed as near as possible in the relative positions they respectively occupied when the alleged crime was committed, and made experiments illustrative of the manner in which it may have been done, the accused being present, in the company of, and at liberty to communicate freely with, his counsel, indicates no objection to, or dissatisfaction with, such proceedings, should be deemed to have authorized the same ; and a motion made in his behalf, on the return of the jury into court, for its discharge, on account of such proceedings, was properly overruled.
    3. Where a father, placed upon trial for killing his son, a youth of about sixteen years, contended that the boy had left home to associate with immoral women, with whom he was being criminally intimate, and that the homicide was accidentally committed while the father was attempting to reclaim his son, evidence of the character of such women, is competent, as reflecting upon the motives of the father in seeking the son.
    4. An intention to kill is an essential element of the crime of murder in this state, and must be established beyond a reasonable doubt, to authorize a verdict of murder in the first or second degree. This rule is not changed by reason of the accused contending, and introducing evidence tending to prove, that the homicide was accidental. The legal effect of such evidence being, simply, to controvert an inference of an intent to kill, which may arise from the evidence introduced by the state.
    (Decided May 22, 1894.)
    Error to the Circuit Court of Clermont county.
    The plaintiff in error, at the October term, 1891, of the court of common pleas of Clermont county, was indicted for murder in the first degree, committed on his son, a youth of about sixteen years of age. He was tried twice in Clermont county for the offense, and upon each trial was convicted of murder in the first degree, and each conviction was set aside by the circuit court for errors committed, to his prejudice by the trial court. The venue was then chang’ed to Brown county, where the plaintiff was again tried, and in February, 1894, again convicted of murder in the first degree, and sentenced to be hanged. This conviction and judgment was sustained by the circuit court, whereupon the plaintiff in error instituted proceedings in this court to obtain their reversal.

      J. H. Cobell, W. W. Dennison and W. W. Young, for plaintiff in error.

      O. P. Griffith, prosecuting attorney, John M. Markley, assistant prosecuting attorney, and G. A. Frazier, for defendant in error.
    The case was argued orally by counsel for both plaintiff and defendant in error.
   Bradbury, J.

The plaintiff in error, after two trials in the Clermont county court of common pleas, both of which resulted adversely to him, sought and obtained a change of venue. The cause was removed to the adjoining county of Brown, where he was, for the third time, placed upon trial upon an indictment charging him with'murder in the first degree.

After the jury had been impanneled in Brown county for the trial, counsel for the state moved for, and, over the objection of plaintiff in error, obtained an order that the jury be sent to Clermont county, in which the homicide was committed, to view the place where' it occurred. Thereupon the jury in a body, under the charge of an officer, was conducted to that place, and, by a person appointed by the court, their attention directed to such objects as was thought might aid them in understanding the evidence to be submitted to their consideration. The - court, in the order directingthe view, also directed that the prisoner, if he desired, should be taken along in charge of an officer. He chose to accompany the jury, as also did his counsel and the prosecuting attorney.

The plaintiff, however, having resisted the motion for a view, and excepted to the order allowing it, should not be regarded as waiving his objection to it because, with his counsel, he accompanied the jury when he found that the view was to be made notwithstanding his resistance.

. What power is vested in a court of common pleas to order a view of the locus criminus in the absence of a statute, we need not consider, for in this state the subject is regulated by the legislature. Section 7283, Revised Statutes, provides that, “Whenever in the opinion of the court it is proper for the jurors to have a view of the place at which any material fact occurred, it may order them to be conducted.” * * * The language employed does not limit the power to order a view to places within the county. The words are broad enough to authorize a jury to be sent anywhere, and no reason is apparent why a jury might not be sent to any place where a material fact occurred, if within the jurisdiction of this state. The statute, we think, authorized the court of common pleas to send the jury to Clermont county to view the place where the homicide occurred.

O. P. Griffith, Esq, Prosecuting Attorney, his assistant, John M. Markley, Esq., the plaintiff in.error, and two of his counsel, W. W. Young, Esq., and W. W. Dennison, Esq., accompanied the jury when it made the view, and the plaintiff in error contends the irregularities occurred while the view was being had, for which the jury should have been discharged; and upon the return of the jury, and before any further steps were taken in the trial, he moved the court for an order discharging it, which was overruled. The several matters, constituting the alleged irregulaities, were set forth in affidavits filed on behalf of the plaintiff in error, and in counter affidavits presented by the state, which, upon the overruling of the motion to discharge the jury, were embodied in a bill of exceptions. If the irregularities, disclosed by the affidavits filed on behalf of the plaintiff, were such as to require the discharge of the jury, and the affidavits presented by the state showed that the alleged irregularities were not sufficient to warrant such discharge, this court must assume, in support of the ruling of the court of common pleas, that it found the facts in accordance with the affidavits of the latter, and should not disturb its ruling in this regard, unless this finding was manifestly against the weight of the evidence. However, if the facts, as they were disclosed by the affidavits filed by the state, show, fatal irregularities for which the jury should have been discharged, it was error to overrule the motion. There was no great conflict in these affidavits, and in passing upon this motion the court may well have taken the statements made by E. G. Booso, who was appointed to accompany the jury and point out the premises, as disclosing a correct history of what transpired in its presence on that occasion.

He states that after the jury and those who accompanied it, arrived on the premises, he, at the request of counsel for the state, and for the plaintiff in error, caused the owner of the team and the wagon in which the deceased was riding, when shot, to drive the team and wagon to the place of the tragedy; that counsel thenagreed that the deceased, when shot, fell from the wagon to the earth in the pike, at a point fifty feet from a certain bridge, and to ascertain the point where the body fell, the affiant, at the joint request of counsel on both sides, measured the distance with a tape line, and made a mark to indicate where the body lay, and by like consent and request caused the wagon to be driven near to this point, as indicated by one of the counsel for plaintiff in error ; then the owner ' of the wag’on, a boy and a third person, were placed in the wagon, the jury conducted to the east end of said bridge, O. P. Griffith, prosecuting attorney, was placed at a point where the plaintiff in error had stood at the time the shot was fired, a gun placed in his hands and pointed in the direction of the man and boy, and the attention of the jury directed to the position of such persons; that then the jury was moved up to the Wagon, and the affiant, at the request of counsel for plaintiff in error, took the gun and placed the hammer thereof at different points upon the front wheel and other parts of the wagon. This entire transaction occurred in the presence of the plaintiff in error. The several acts were done at the request of his counsel, made alone or jointly with counsel for the state. The theory of the defense was that the fatal shot was an accident, and the experiments made, and positions in which the several actors were placed were intended, we must presume, to render intelligible, to the jury the statements of the witnesses that bore upon that theory. The plaintiff in error at the time made no objection to these acts, performed, as we have already seen, in his presence and at the request of his counsel. He now claims that the owner of the team and wagon, Malott, aiid the prosecuting attorney, did not stand indifferent between himself and the state, for the reason thatMalottwas the man who harbored his boy, the deceased, and a hostile witness at his trial, and that the position of the prosecuting attorney was necessarily hostile to him. Whatever the feelings of these two men may have been, no unfairness was exhibited by either in the course of the view. He also claims'that he did not know that he had a right to object to the part taken by Malott .and the prosecuting attorney, or to any of the proceeding’s had at the view; but, as two of his counsel were there with whom he could have communicated at any moment, this objection is entitled to no substantial consideration, for undoubtedly the slightest intimation from him to them of any opposition to, or dissatisfaction with, the proceeding’s, would have received instant attention. We can discover nothing, however, in the course of the proceedings had during the view, that prejudiced any substantial right of the plaintiff in error; but if there had been, the old notion that a defendant in a capital ease can waive no right is fast becoming obsolete. Where he, with perfect freedom, may object to a course of proceeding, no good reason is perceived why his acquiescence in it should not bind him; much more so, where the proceedings are had in good faith, in his presence, and at the request of his counsel, under circumstances, affording him ample opportunities for objecting to them, if they are not satisfactory to him.

We find no error in overruling the motion to discharge the jury.

That the deceased was the son of the plaintiff in error, and came to his death by a gun shot fired «from a gun in the hands of the latter, is not disputed. The son left home and was working for a neighbor, the man Malott, who has already been mentioned, and was on Malott’s wagon with him and some members of his family, when the fatal shot was fired. Father and son had had sharp controversies over the son’s refusal to return home, in which Malott had participated. The theory of the state, briefly is, that the father through these controversies had become highly exasperated at, and embittered towards, both his son and Malott, and seeing his son pass by his, the father’s house, in Malott’s wagon, with Malott’s family, on his way to the home of the latter, his feelings of animosity were aroused, and seizing a musket, followed after and overtook the wagon, and purposely shot, either at Malott or the boy, killing the latter.

The theory of the defense, on the contrary, is that the deceased, a youth of fifteen or sixteen years of age, was being debauched by female members of Malott’s family. That Malott’s wife was a woman of bad character, with whom, as well as with the daughter, the boy was having illicit relations, and that the plaintiff in error, to reclaim his son from these immoral surroundings, followed the wagon, in which the «on, together with Malott and the latter’s family, were riding, with a view to urg’d the latter to return home; and took with him a musket to protect himself from Malott, who, he had just grounds to apprehend, might violently interfere, to prevent the return of the boy; and that when he approached the wagon in which the boy and Malott, and the latter’s family were riding, the musket, either by striking some part of the wagon, or in some other way unknown to the plaintiff in error, was accidentally discharged and the boy thus killed.

To support this contention, plaintiff in error offered evidence tending to prove the general bad character for chastity, of Malott’s wife, which evidence was rejected.

This, we think, was error. The evidence tended to contradict the contention of the state that the plaintiff in error was actuated by malice and a purpose to kill his son or Malott. Fathers, with a just sense of paternal obligations, may be expected to strenuously exert themselves to remove a son, hardly yet entering upon the threshold of manhood, from the demoralizing influence of depraved women. If the plaintiff in error could establish the fact that his son was thus situated, it would tend to show that in pursuing after the wagon in which his son was riding, he was actuated by the natural feeling-s of a father, rather than by a purpose to take the life of his son or Malott, thereby rendering- more probable his theory of an accidental discharge of the gun. ' And jf, in addition, he could establish that he had cause to apprehend that an attempt to reclaim his son might be resisted by Malott, it would show a motive for taking with him the gun, other than a design to kill either Malott or his son.

True, he was permitted to testify that he had been told by his son that the latter and Malott’s wife had been criminally intimate; and that on one occasion he had, himself, taken his son and a daughter of Malott in the act' of copulation. He was permitted to do this, not to establish the bad character of Mrs. Malott, or any acts of intimacy between herself and the boy, or the daughter and the boy, but as tending to show the state of his mind at the time of the homicide. This, no doubt, he had a right to do; for, as a father, who fully believed, though mistakenly, that his youthful son was being debauched, he might be expected to act precisely as if his belief was true. So that, however chaste, Mrs. Malott and her daughter may in fact have been, the plaintiff in error had a right to show that he honestly believed the contrary, as explanatory of his conduct , in seeking to reclaim the boy, as, he contended, was his purpose on the fatal occasion. But this was not the full measure of his right. In the nature of things it would be difficult to obtain other evidence of his mere belief than his own statement. His own statements were made in a matter involving his life on account of a most horrible accusation, the murder of his own son. He, in the estimation of a jury, would be deemed to labor under a strong temptation to find some circumstances of extenuation or complete exculpation, and his unsupported evidence might, or probably would, be viewed with great doubt; and if the wife and daughter, both, were of irreproachable character, his tale would be deemed a fiction created by a desperate man, pressed to extremity for an excuse to palliate an atrocious crime. Where one' finds his youthful son in a bawdy-house, or under the influence of a notoriously immoral woman, and in an effort to reclaim Mm, takes his life, we think it of the utmost importance, upon an issue of whether he casually or purposely killed him, that he should be allowed to show the actual character of the surroundings of the boy. If he could establish that these surroundings were clearly and unmistakably vicious, a motive for his conduct, although he took extreme measures to reclaim the boy, would be shown consistent with parental duty, and tend to rebut other circumstances, if any, that tend to prove malice or a purpose to take life.

It is one thing to show that he believed, though falsely, that his son was so surrounded, but quite another to show that the son was in fact thus situated. The distinction would be wide, if for no other reason, because of the greatly increased probability of a jury giving credence to his theory, if it appeared that his son was in fact being-debauched. If he could establish by independent evidence, this fact, or that his son was in a situation in which that result was probable, his theory would be placed on a much more substantial basis, than it would be if it rested upon his own false belief that such were the facts. The jury might readily believe that his alleged motive to reclaim his boy was bona fide, if it appeared that the boy was actually associating day by day with depraved women, while they would reject it altogether, if the women were virtuous and his alleged motive rested upon his assertion of av, false belief that they were vicious and immoral.

The plaintiff in error denied that he entertained a purpose to kill, anyone, or even intended to fire the gun, when it was discharged; and gave evidence tending to prove that having taken the gun with him merely to protect himself from violence in case his efforts to reclaim his son should be resisted with extremity, it was discharged by means unknown to him and his son thus killed.

In this connection the plaintiff in error requested the court to charge the jury that: “The burden of proof is not in this' case upon the defendant to show that the gun was discharged by accident, or force exerted by other persons than the defendant, but that it is incumbent upon the state to establish, to the satisfaction of the jury,' and beyond a reasonable doubt, that the defendant deliberately discharged the gun with premeditation and motive before you can find him guilty of murder in the first deg’ree.”

The learned judge declined to give this proposition to the jury, but on the contrary, in a charge of remarkable clearness and brevity, and in other respects, stating the rules of law applicable to the facts, correctly, laid down the converse of the proposition requested. This we think was error.

The statutes of Ohio make an intent to kill an essential ingredient of the crime of murder, in either degree, except in the case of death following from maliciously placing obstructions on a railroad track, etc. Revised Statutes, sections 6808, 6809, 6810. The intent or purpose, to kill, being an essential constituent of the offense, should be averred and proven. Fouts v. The State, 8 Ohio St., 98; Kain v. The State, Ib., 306; Hagan v. The State, 10 Ohio St., 459. This purpose, like every other material averment of the indictment, is put in issue by the plea of not guilty and to authorize a conviction must be proven beyond a reasonable doubt. Where the state has shown that the death was the result of design, purpose, or intent —and these terms in this relation are synonymous— then the notion of accident is necessarily excluded. That which is designedly or purposely accomplished cannot, in the very nature of things, be accidental. Therefore, when the plaintiff in error introduced evidence tending to prove that the gun was accidentally discharged, he was merely controverting the truth of the averment in the indictment that it was purposely discharged.

This was not an affirmative defense, analogous to a plea of confession and avoidance in civil controversies, like that of one who admits that he purposely killed his assailant, or purposely used a deadly weapon which produced that result, but contends that he was justified in taking the life of his assailant, in defense of his own person. Nor like that of one who, admitting that he purposely took the life of another, sets up as a defense his insanity.

As respects thesé last two defenses, this court has uniformly held that the burden of maintaining them was on the defendant. Clark v. State, 12 Ohio, 494; Loefner v. State, 10 Ohio St., 598; Bergin v. The State, 31 Ohio St., 111; Bond v. The State, 23 Ohio St., 349; Silvus v. State, 22 Ohio St., 90; Weaver v. State, 24 Ohio St., 584. But in none of these cases is it held that the state, in the first instance, is not bound to establish beyond a reasonable doubt every fact necessary to- constitute the crime charged. In Weaver v. The State, 24 Ohio St., 589, White, J., refers with seeming approval to the fact that the court of common pleas, in its charge, told the jury that the state was required to establish beyond a reasonable doubt the facts necessary to constitute the offense. We are not called upon at this time to declare what presumptions might arise, and their effect, from the mere fact that one person had killed another, wholly unexplained by any evidence of attending circumstances; for, in the case before us, the homicide was committed in the presence of a number of persons, each of whom gave to the jury his version of the affair. The plaintiff did the same. In doing this, he set up no other defense than that the state had not established, beyond a reasonable doubt, the facts constituting the crime charged against him, one of which facts was an intent to kill. The cases of Commonwealth v. York, 9 Metcf. (Mass.), 93; Commonwealth v. Webster, 5 Cush. (Mass.), 295, and Davis v. The State, 25 Ohio St., 369, are cited in support of the ruling of the common pleas court.

In Commonwealth v. York, supra, death resulted from a wound, inflicted by the prisoner with a dirk knife. No suggestion that it was accidentally inflicted appears in the case. The question was whether the act was done in self defense, or in the heat of passion, so as to exclude the presence of malice, and thus render it justifiable in the first case or reduce the homicide to manslaughter in the second case. The wound had been willfully and voluntarily inflicted. On page 102, the court say: “The distinguishing characteristic of murder is homicide with malice aforethought, express, or implied by law. The effect of the rule presented to the jury was, that it was proved, beyond a reasonable doubt, that the defendant had willfully and voluntarily inflicted a mortal wound upon the deceased, malice was to be inferred from this act, unless such facts were proved by a preponderance of the evidence, as would extenuate the homicide and reduce it to manslaughter. This rule seems to rest on well settled principles, and to be supported by a great weight of authorities. A sane man, a voluntary agent, acting upon motives, must be presumed to contemplate and intend' the necessary, natural and probable consequences of his own act. If, therefore, one voluntarily or willfully does an act which has a direct tendency to destroy another’s life, the natural and necessary Conclusion is that he intended so to destroy such person’s life.” * * This language, while it supports the ■ proposition that one should be held to intend to do that which his deliberate acts necessarily or naturally tend to produce, it affords no support for the contention that he shall be held to intend ' the consequences of all his acts, irrespective of . whether those acts were voluntary or involuntary, and that the burden is on him to show that he did not.

The facts in Davis v. The State, 25 Ohio St., 369 (supra), are meagerly reported, but they present none of the features of accident. The defense, seems to have been founded upon the excessive intoxication of the prisoner, and it was in that connection that the court instructed the jury that, ‘ ‘where the fact of killing has been proved, malice must be intended, and all circumstances of justification and extenuation are to be made out by the accused unless they appear from the evidence adduced against him.” And this court held that no error appeared. Incapacity resulting from intoxication is not unlike that arising from insanity, and where it does not appear in the evidence introduced by the state, but is presented to the jury by the defendant as an excuse or justification, no reason is apparent why it should be treated more leniently than insanity. The court was not considering the question of intent, in hbmicide, but that of malice, a term frequently of technical import in criminal jurisprudence, and in construing the language of the court, reference should be had as to the question under consideration at the time; and when this is done, that above quoted affords no support to the proposition, that upon an issue in a criminal cause of whether a homicide was accidental, or designed, the burden of proof was upon a defendant, who claimed it to be accidental.

Commomoealth v. Webster, 50 Mass., 295 (supra), was the celebrated case involving the murder of Dr. Parkman. No intimation that his death resulted from an accident was ever made. The language used by Chief Justice Shaw, was to explain to the jury the difference, between manslaughter and murder, according to the principles of the common law. The last he defines as “the killing of any person in the peace of the commonwealth with malice aforethought, either express or implied,” while manslaughter is “.the unlawful killing of another without malice. ” * * * Ib., 305. The characteristic distinction between murder and manslaughter, he says, “is malice express or implied. ” He then proceeds: “Upon this subject, the rule as deduced from the authorities is that the implication of malice arises in every case of intentional homicide; and the fact of killing being first proved, all the circumstances of accident, necessity or infirmity are to be satisfactorily established by the party charged, unless they arise out of the evidence produced against him. If there are, in fact, circumstances of justification, excuse or palliation, such proof will naturally indicate them. But where the fact of killing is proved by satisfactory evidence and there are no circumstances disclosed, tending to show justification or excuse, there is nothing to rebut the natural presumption of malice. The rule is founded on the plain and obvious principle, that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do. ” * * * Ib., 305. It is clear that the distinguished jurist who employed this language, did so with reference to the case before him, and had in mind not an accidental, but a willful homicide, and no wise conflicts with views we hold. He was asserting, and explaining to the jury, that one is presumed to contemplate the consequences of his voluntary and wilful act, but neither from the history of that celebrated case, nor the language of that great judge, when all of it is considered, can it be inferred that he intended to hold that a man shall be taken to contemplate the consequences of an act that he never designed. How can a man be held to contemplate the consequences of an act, when he did not contemplate the act itself ?

The rule has been announced in this state more than once, in general terms, that from the act of killing malice might be inferred; but in all of them the intent to kill had been established, if that intent was an ingredient of the crime. It is also an established canon of the law of this state that one must be held to contemplate' the consequences of his voluntary and deliberate acts, but as we have seen, it does not follow from these principles that one must be held to intend the consequences of involuntary acts, and assumes the burden of proving that he did not. But had this court gone a step farther and held generally that from the mere fact, standing alone, uninterpreted by a single circumstance, that one person had killed another, the intent to kill should be presumed, we should certainly pause and consider, before applying that stern rule to the case of father and son. Rare, indeed, in the ordinary walks of life, are the instances where a son has been maliciously and intentionally killed by his father. Among the strongest affections that are founded upon our social relations is the parental one. The welfare and happiness of the child are main objects of paternal solicitude. To destroy a child is so contrary to the promptings of nature, that it may be doubted that, if the presumption of an intent to kill should be held to follow an unexplained homicide generally, whether it should 'be applied where such special relations exist, relations which usually bind the parties to each other by the strongest bonds of natural affection, although occasionally, when thoroughly estranged, extreme bitterness and exasperation may usurp the place of those natural affections. We think the proposition as to the degree of proof required to establish the intent to kill, contained in the instructions requested by the plaintiff in error, was sound, and as it was pertinent to the issue being tried, should have been given to the jury, and to refuse to give it was error prejudicial to his defense.

Judgment reversed.