author: Spalding, J.

text:
    The State, on relation of Joseph Cooper, v. A. W. Armstrong, Auditor of Hamilton county.
    When it becomes necessary for the sheriff to furnish food, etc., to juries impanneled in capital cases, the court will allow the account for such expenditures a necessary incident to their powers, and will compel the county auditor, by mandamus if necessary, to draw his order upon the treasurer for the amount expended by the sheriff. '
    This is a mandamus, reserved in Hamilton county.
    The relator is the sheriff of Hamilton county. During the May term, 1850, of the supreme court in said county, said sheriff expended the sum of $174.47, in and about the boarding and care of two traverse juries, impanneled to try a person charged, in two indictments, with the crime of murder.
    This money was expended in obedience to a special order of the court, made necessary for the furtherance of the administration of justice in an important criminal proceeding in the county. The allowance and order of the court were duly presented to the defendant, who is the auditor of the county of Hamilton, with a request that he would issue an order on the treasury, which he refused to do.
    On these facts, a rule was granted by the court for an alternative mandamus to the defendant, in answer to which he states that he refused to issue the order on the treasurer be cause he had not been able to find any law of the state authorizing or requiring an auditor to issue the same upon the allowance of the court. A motion for a peremptory mandamus being made by complainant, the court reserved the motion for the advice of all the judges.

      Morris, Tilden, and Rairden, for relator.
    The question, for the decision of this court is, whether the court had the power to make the allowance and order in favor of the sheriff.

      If the court had the authority to make the allowance and order, then the amount allowed became and is a valid charge against the county, and the auditor is bound to audit the claim, and issue an order for the amount ■ on the treasury, and on refusal, we think it clear, that this court could compel the performance by mandamus. ,

    The writ of mandamus may be issued by this court in all cases to an officer, to enforce and compel the performance of a public duty enjoined by law upon him, and the orders, decrees, and judgments of courts of record in this state ; — and the use of the writ is not restricted, as claimed by the defendant’s counsel, to “ duties specially enjoined” upon him (the officer) by some provision of law.
    The only question, therefore, in this case is, whether the supreme court, in the exercise of its criminal jurisdiction, had the authority, in' preserving the purity of its administrartion, to compel the sheriff to perform the duties imposed on him in this case by the court; for.if the court had the right and authority to impose such duties on the sheriff, then it is clear that any expenditure by him in the necessary discharge of those duties, is a legal charge upon the county; and the auditor was bound to audit the same and issue an order on the treasury for the amount.
    Swan’s Statutes, page 107, sec. 12, provides, “ That all accounts, debts and demands, justly chargeable against any county, and which.are not directed by law, to be settled and allowed by some other person or tribunal, shall be examined and settled by the auditor of such county; and for all such just debts, accounts, and demands, settled and allowed by the auditor, or settled or allowed by any other person or tribunal, authorized by law to do so; and for all demands against the county, the amount of which is fixed by law, the county auditor shall issue orders on the treasury of such county,” etc.
    By this section, there are three classes of claims provided for. 1st. Claims, accounts, debts, etc., chargeable against the county, not directed by law to be settled and allowed by some other person or tribunal, shall be settled and allowed by the auditor; and when settled and allowed by him, he is bound to issue an order. His only discretion is, in ascertaining if the same is a just charge on the county; when that is done, he is bound to issue an order. In the other two classes of cases, the auditor has no discretion; he is merely an executive officer. When the accounts, etc., against the county are allowed and settled by any other person or tribunal, the evidence of the allowance is all he can look to, and he cannot inquire into the propriety or justness of the claim. It is sufficient for him that the proper tribunal has made the allowance ; and when the amount is fixed by law, the duty is equally imperative upon him. He cannot go into the inquiry, whether the service for which the charge is made was well performed, or. was worth the money charged.
    The laws of Ohio allow specific fees for jurors and witnesses, in criminal proceedings, and direct the same to be audited, taxed, and paid. See Swan, page 890 and 891, and see page 497. All claims of witnesses or jurors, under the above provisions, for services, must be settled and allowed by the courts; and yet the law is silent as to the tribunal by which the matter of claim is to be determined — the power must be implied, to be in the court from necessity; and the allowance or determination of the court, in those, as well as all other matters, which necessarily come within its control, must be the exclusive power to settle and allow the claim. The court may in all cases refuse to allow the claim of witness, juror, or other officer of the court, for services in court; and may control the action of its clerk in certifying any claim to the auditor, on motion to re-tax in case of costs and fees, or by striking out the allowance for good cause; and with all these matters, the auditor can exercise no discretion. The court alone can have control of all matters arising from judicial proceedings.
    We do not understand the defendant’s counsel as denying the power of this court, in a capital case, to do what was done in the Summons case by which the claim of the plaintiff.was incurred; nor can the exercise of such power, in our opinion, be denied to the court, without destroying entirely the purity of the administration of justice in criminal cases. It is a power inherent in the criminal courts, to protect and preserve the jurors from corruption and improper influences, and to exert the means to secure those ends; and the duty imposed on the sheriff, in the present case, was most clearly of that character. If the court had the power to enforce this duty to any extent upon the sheriff, then the expenditure in discharge of the duty became a just charge on the county treasury, and the court, and not the auditor, the proper tribunal to settle and allow the charge ; and whether reasonable, or in all respects just, is not for the auditor to question. The defendant’s counsel deny that there is any law authorizing this court to make a contract binding on the county, and therefore the county is not liable for this claim. Now we do not claim this charge by virtue of any contract under express statute, but that it is an obligation incurred by the county by the acts of its officers, in the discharge of a legal duty — and if it is a legal obligation, then the right to the relief claimed is clear.
    Finally, we claim that, whenever a duty is imposed on the courts of any county, which involves the ■ expenditure of money,- or requires the services of- others, the expenditure so made, and the services rendered, become a legal charge on the treasury of the county, and must be settled and allowed by such court. And such we understand to have been the practice throughout the state, from the commencement until now.
    The cases in 9 O. R. 25, and 12 O. R. 54, are authorities in favor of the remedy by mandamus, if the court had power to make an order binding on the county; and the argument that the amount of the claim should be liquidated before the remedy will lie, is not sound, because the amount had been so liquidated by the court itself. The whole case turns upon the point whether the court has, by implication, power to make such an allowance. It is not pretended that there is any statute conferring the power in express terms, but if it exist by construction, it is equally within the 12th section of the act cited, and the demand is one “ directed by law to be settled and allowed by some other tribunal. ”

      Fox, French, and Pendleton, for defendant.
    We claim that the auditor has no power or authority to make the 'order, and if he has not, this court has no authority to require him to do the act.
    The writ of mandamus in Ohio, as we understand it, is a command to the officer to whom it is directed to perform some public duty specially enjoined upon him by some provision of law.

    The question therefore is presented whether by any law of Ohio it is made the duty of the auditor to issue an order on the county treasurer, requesting him to pay such a bill as the one in question, incurred upon the order of the court. If there is such a law, he must obey it, if there is no such law, the court has no authority to compel him to do the act.
    The only statute we have on this subject is the act prescribing the duty of county auditors. Swan 105.
    By the 12th sec. of this act it is provided, “ that all accounts, debts, and demands justly chargeable against any county, and which are not directed by law to be settled and allowed by some other tribunal, shall be examined and settled by the auditor of such county, and for all such just accounts, debts, and demands, settled and allowed by the auditor, or settled or allowed by any other person or tribunal, authorized by law to do so, and for all demands against such county, the amount of which is fixed by law, the county auditor shall issue orders on the treasury of such county, payable to the several persons entitled thereto.”
    There are some contracts made by the county commis-sioners on which the auditor is not authorized to draw an order on the treasurer, until directed to do so by the com missioners. There are many cases in which the auditor is specially authorized to draw such orders: 48 Ohio Laws 100 ; 44 Ohio Laws 71; 45 Ohio Laws 32.
    We can find no authority in any law of Ohio for the audit- or to draw an order on the treasurer for this bill. If this is a debt justly chargeable on the county, the auditor is to allow it; but is this debt justly chargeable to the county ? If it is, it must be because some person authorized to contract for the county, has made the latter liable. We have statutes showing who are authorized to make contracts for and on behalf of the county, and we maintain no other persons can bind the county by contracting on its behalf. It is said this court has an inherent power to allow all necessary expenses attending the administration of justice, that it is necessary the court should have the power to order jurors to be kept together in certain cases, and that it must of necessity have the further power to furnish them with meat and drink while so detained, by the order of the court. If this court has such power, then every other court in the state has the same power, and it exists as well in civil as in criminal cases. For, if it is to be allowed on the ground of necessity, the court only can determine of that necessity, and its decision in fact must be held as conclusive evidence of the necessity.
    We maintain however, that there is no law authorizing this court to impose this obligation on the county. Wadsworth v. Wetmore, 6 Ohio Rep. 438.
    We maintain that the courts of this state have no more-power to order anything to be done at the expense of the county,, than the sheriff, or the clerk, or any one judge of the court. We maintain that all the powers which the commissioners, the auditor, the sheriff, the clerk, and the courts have on this subject are statutory powers, and if the statute has not conferred the power, the court has it not by implication. Such has been the whole theory of our legislation. And whenever the legislature has thought it advisable to authorize the courts to act, it has done so. Hence the law has declared that constables shall be allowed one dollar per day for every day’s attendance on the court, by order of the court, to be paid out of the county treasury. Swan’s Statutes 391.
    So the court of common pleas is authorized to make allowances to the sheriff of not more than $100 per year for services, (where the state fails to convict criminals,) and for other services not provided for in the fee bill. Swan’s Statutes 393.
    So the court is authorized to determine the number of guards to be allowed the sheriff to take convicts to the penitentiary. Swan 729.
    So the law declares what fees witnesses shall draw from the state and county treasury in criminal case’s, which are to be certified by the president judge. Swan 729.
    If power is inherent in the court to order all expenses of administering justice on the plea of necessity, then why legislate as to these items ? They are all necessary to the administrar tion of justice in one sense.
    The result of this examination of the statutes is, that where-ever money is authorized to be drawn out of the county treasr ury under this first branch of the 12th section, it must be some debt for which the county is justly chargeable. The county is not chargeable for debts created by the courts, unless in those cases particularly provided for by statutes, and this debt not being so provided for, cannot be allowed without violating the law, instead of enforcing it. ■
    And such we suppose to be the view taken by this court in the case of Wadsworth v. Commissioners of Portage county. 5 Ohio 188.
    In that case it was held that the county could not be made liable for the support of debtors confined in jail on civil process, and although it was made the duty of the sheriff to provide for prisoners, that did not authorize him to claim the amount of the debtors’ support from the county.

      And the court act on the idea throughout the whole case, that there can be no liability unless the statute has provided one.
    It is said that the court must be possessed of the .power of ordering jurors to be kept together in order to secure an impartial administration of justice. This might be a sufficient argument if addressed to the legislature, to induce that body to grant the power claimed to the county. But this court is not making a law, but carrying into execution the law already made. And there is no more necessity that the power claimed should exist, than that the court should have the power to say how many constables are necessary to protect it, and yet this is a statutory power, expressly conferred on the courts. There is no greater necessity than there is for feeding poor debtors. The latter no doubt ought to be fed, but has the law made the county liable for their feed ? That is the question. We claim that the court not being authorized to order the food, nor to audit the bill presented, cannot make a valid order on the auditor.
    As to the next class of cases mentioned in the 12th section, ' they are such as are allowed by any other person or tribunal authorized hy law to do so. We suppose this clause only embraces such cases as are particularly authorized to be brought before a judicial tribunal on a special statute, or such claims as have been prosecuted and recovered in a suit at law brought against the county.
    As in the first class of cases where a claim has been presented to the commissioners and they have refused to allow it, the cause may be appealed to the common pleas. Of course in a such a case the decision of the latter court would be authorized by law, and the auditor would be bound to give an order on the county treasury. 12 Ohio Rep. 57.
    So in an ordinary suit when decided against the county after a fair trial, the judgment would be by a tribunal authorized to render judgment, and the order ought tp be granted.
    Again, is this case proper for a mandamus? Supposing that it is proper for the court to order the sheriff to incur the expenses claimed, and that the county is liable because so ordered, does it follow from this fact that a mandamus ought to issue; or that this court ought to audit,-adjust, and-sett-le the bill, and that its adjustment ought to govern the auditor ?
    If any person has a claim against the county, and the county commissioners refuse to allow it, he can appeal to the court of common pleas, whose decision binds the parties.
    Or we suppose the party might resort to his common law remedy, and recover like any other creditor. We suppose if the account had been presented to the auditor, and he had refused to allow the amount as claimed, but had offered to allow a certain amount, he could not be compelled by mandamus to allow more. Although if he had refused to act, the court could have compelled him to act, and allow what was right. 12 John. Rep. 415; 12 Ohio Rep. 57, Burnet v. Auditor of Portage county.

    But the refusal of the auditor to make a sufficient allowance would not prevent the creditor from commencing an action at law. And that would be the proper mode of asserting the claim now set up. If the court had the power to order the jurors to be supplied with food, etc., still the amount ought to be adjusted by the auditor or the county commissioners, or by a jury. We know of no instance wherein the supreme court is authorized to audit the accounts against the county. If the court can order a jury to be fed and kept in a separate room at a tavern, it does appear to us that the auditing of the accounts at least, might be left to the auditor, or to a jury, as in ordinary cases. We claim, therefore, that the account has never been presented to the auditor as it ought to have been. We deny the authority of this court to audit -the account, and we deny the power of the court to grant a mandamus to pay the particular amount claimed. And we insist that the creditor, if he has any just claim, can prosecute it by an ordinary action at law, and, therefore, a peremptory mandamus ought not to issue.
   Spalding, J.

There is no difference of opinion amongst our number, in respect to the justice of this claim, and tin-propriety of the expenditure by the sheriff, under the circum stances.

Indeed we would with one voice unite in advising the de fendant to audit and allow the account as a proper charge against the county of Hamilton, but we do not see the way clear to carry out the remedy by mandamus, as the law no where, in express terms, makes it the duty of the auditor to act upon the allowance of the court, in cases of this sort.

• A majority of the court, however, believe it to be a necessary incident to their authority, to make a provision for the sustenance and care of juries when called to administer the criminal laws of the state, in any county; and as the speediest way of re-imbursing the sheriff for money advanced by him for this salutary purpose, they will direct the county auditor to consider an account of this character, audited and allowed by the court, as “ a just demand against the county, settled and allowed by a tribunal authorized by law to do so.”

A peremptory mandamus will issue.

Hithcock, C. J., dissented.


source: Caselaw Access Project

author: Avery, J.

license: Public Domain

text:
    John Beesley, etc. v. Lewis Crawford.
    In an action upon a contract, the defendant may set off a bond or note not made negotiable, under a notice attached to the general issue.
    Where one of two partners assigns to the other a book account belonging to the partnership, and afterwards, as survivor, prosecutes a suit upon the same account, the defendant, having at the time of assignment and trial an individual account against the assignee, may set off such account against the demand of the plaintiff.
    This is a writ of error to the Court of Common Pleas of Brown county.
    The action below was assumpsit, brought by the present plaintiff, as surviving partner of the firm of Beesley and Ramsey. The declaration contained the common counts. ' The plea was the general issue, with notice of set off. The case was tried by the court without the intervention of a jury, and a judgment rendered in favor of the plaintiff, for three dollars and ninety cents.
    The bill of exceptions, which is made part of the record, shows that on the trial of the cause, the plaintiff presented a book account in favor of the firm of Beesley & Ramsey against the defendant for $157.42, which was admitted to be correct, and that the whole of it accrued prior to the 17th of May, 1849.
    The defendant then offered in evidence, a written instrument signed by Beesley and Ramsey, which was admitted, and in connection with it, a book account in his favor, against Jos. Ramsey, the deceased member of the firm, individually amounting to $ 147.52, which also accrued prior to the 17th day of May, 1849, and was admitted to be a correct account against said Ramsey, individually.
    The plaintiff objected to the admission and allowance of this aceount against Ramsey, as a set off against the claim of the plaintiff, but the objection was overruled, and the set off allowed, which reduced the judgment to the sum above stated.
    To this ruling of the court the plaintiff excepted.
    The article referred to, in the bill of exceptions, is a contract between Beesley and Ramsey, dated May 17th, 1849, by which Beesley sold to Ramsey his interest in the saw mill, and other property of the firm, embracing book accounts, lumber, etc. To Ramsey were transferred all the accounts due the firm, with a few specified exceptions, and he was to pay off all the debts of the firm.

      David G. Devore, for plaintiff in error.

      Penn, King and Penn, for defendant.
   Avery, J.

The facts embraced in the bill of exceptions, present a question upon_ the law of set off. When the dissolution of the partnership took place, Ramsey became by assignment, the owner in equity of the claims which formerly belonged to the firm, the book account for which the present suit is brought being amongst the number. Before the dissolution, the whole of the defendant’s account offered as a set off, was due to him from Ramsey, as was the whole of his debt to the company.

Our statute, giving the defendant the right of set off, embraces all the claims comprehended in the following terms: “Any debt, contract, book'account, or other liquidated demands against the plaintiff.” And he may, upon pleading the general issue, and giving a notice in writing, set off any of .the above named demands, subject to the proviso in the statute, that no bond, bill, note, or other writing, assigned after suit brought, shall be allowed by way of set off. This law, in view of its general and beneficial operation, is entitled to be liberally expounded, and all cases fairly embraced within its terms, should receive the benefit of its provisions. Such a principle is asserted, and acted upon, in the case of Tuttle against Bebee, 8 Johnson’s Rep. 152, There the court, in an action of assumpsit, allowed the defendant to set off a bond of the plaintiff given to a third per son; the bond appearing to have been assigned to the defend ant before suit brought.

Such a bond, or a note not made negotiable, would be allowed also, as a set off in this state. That is only giving to a defendant in a suit at law, the same right that is conceeded to him when he appears as a plaintiff. The courts, when he sues as plaintiff, secure this control over these instruments and take care that all his rights, in reference to them, are protected. It is true they require him to sue in the name of the obligee or payee, but this is a mere form which the courts of law have retained. If such a case were in equity, and the assignee of a chose in action complainant, the set off would be allowed. Now in the notice which may be attached by the defendant in a suit at law, to his plea of the general issue, no formal difficulty touching the record, can exist, and there is no good reason why he may not be allowed the benefit of his set off under such notice.

It is argued for the plaintiff, that when the estate of a deceased person is insolvent, which it is asserted, though not upon any proof given, is true, in this case, injustice may be done to other creditors, by allowing a set off like the present, and that the spirit of the law, directing the settlement of estates will be violated, because, in such case, one creditor obtains his whole demand, while other creditors, in equal degree, can only obtain a fro rata distribution from the assets. To this, it is sufficient to reply, that the transfer of the partnership claim now considered, took place in the lifetime of the intestate; the right to appropriate it as his own, existed in his lifetime, when also the right, whatever it be, vested in the other party so to treat it in their mutual dealings. If Crawford, the defendant, had the right to make the set off then, the right is not taken away by the death of Ramsey, for the same'reason that it would not be forfeited in the case of an individual demand in his favor, against Ramsey.

It is suggested that the surviving partner and the creditors of the partnership, have rights which may be infringed by such an appropriation as is here permitted of the partnership assets.

Doubtless, a claim like the one extinguished by this set off, would be protected for the benefit of the firm, if the necessity were shown, and steps taken to secure it for such a purpose But nothing of the kind appears in the case, and no presump tion arises of any such necessity. If Ramsey, in his lifetime, had allowed the set off, or cancelled the claim in any other way, it would clearly have been extinguished.

There is a case in 17 Johnson’s Rep. 333, Martin v. Williams, executor of. Williams, in which the defendant offered to prove that, in the lifetime of the testator, the defendant and another, were partners, and as such partners, had sold goods to the testator, and that the other partner assigned the demand to him, before the death of the testator. There the court decided, that it was no objection, that the demand offered to be set off was not originally due to the defendant, but had been assigned to him: and declared the account so assigned, to be a proper subject of set off. That was a case where the party, an executor, claimed the benefit of the assignment, as a defendant. Had it been a suit prosecuted in the partnership name, for the benefit of the same executor, it would have been a case indentical with the present— and the court which allowed him, as a defendant, to treat the demands as mutual, would have, held him bound so to regard them, when a plaintiff.

We believe that the principles recognized by the cases above referred to, must be declared to exist under our law of set off.

The application of the present defendant, to set off, in the court below, his individual claim against Ramsey, was supported by the letter as well as the spirit of the law, and was properly allowed.

The judgment of the Common Pleas is affirmed.


author: Caldwell, J.

text:
    John R. Osborn v. Lorenzo C. Hawley.
    A power of attorney to confess judgment, attached to a note, and forming a part of the same instrument, does not destroy the negotiability of the note.
    Such power of attorney is -not negotiable, and when the note is transferred, becomes invalid and inoperative.
    This is a writ of error to the court of common pleas of Lorain county. The facts will be found stated in the opinion of the court.

      Hamlin and Lockwood, for plaintiff in error.

      Joshua Myers, for defendant.
   Caldwell, J.

The-action in the,-court below, was assump* sit. The plaintiff declared as indorsee of a promissory note made by defendant for $85.00. The declaration also contained the common counts. The case being at issue, the plaintiff offered the note in evidence, which was ruled out by the court, and the plaintiff non-suited. The refusal by the court to permit the note to go in evidence, is assigned for error. No argument is presented on either side, and the bill of exceptions only shows that the court decided that the note was not proper evidence in the cause.

On examination of the record, we do not see any objection to the note being given in evidence, and we think the court erred in ruling it out. The note has attached to it, and forming a part of the instrument a power of attorney to confess a judgment, and we presume the court may have held that that fact would prevent its negotiability. And on that presumption, we would merely remark that the power of attorney, being added to the note, does not in any way change the legal character of the note, except that it gives a more summary proceeding for its collection. It is still a promissory note, and being payable to order, is negotiable by indorsement. The power of attorney is not negotiable, and when the legal title to the note is transferred, the power of attorney becomes invalid, and no power whatever can be exercised under it, for the benefit of the indorsee; and he holds the note as if no such power had ever been attached to it.

The judgment of the court of common pleas will be reversed, and the cause remanded for further proceedings.


text:
    Cyrus Noland v. The State.
    By the 36th section of the act providing for the punishment of crimes, aiding, abetting, or procuring a crime to be committed, is made a substantive, independent offense, and it is not neoessary the principal should be convicted before the accessory is tried.
    It is error in the court to charge the jury that the evidence of an accomplice is corroborated by the testimony of another witness — whether it be corroborated or not being a question for the jury.
    This is a writ of error to the court of common pleas of Morgan county.
    The facts will be found sufficiently stated in the opinion of the court.

      John E. Hanna, for plaintiff in error.

      Henry Stanbery, (attorney general,) for defendant.
   Caldwell, J.

The defendant below was indicted and convicted under the 36th section of the act for the punishment of crime, and charged with aiding, abetting, procuring, etc., one Hillery Weeden to steal a horse. A bill of exceptions was taken, on the part of the defendant, to the ruling and charge of the court, on the trial, on which numerous errors have been assigned. The third count of the indictment, on which the defendant was found guilty, charges that Weeden stole the horse, and that Noland aided, abetted, procured, and commanded him to commit the deed, — in the form of an indictment against principal and accessory. When the cause was called for trial, defendant’s counsel objected to proceeding until Weeden, the principal, should first be tried and convicted. The court overruled this objection, and put the defendant on his trial, and this was excepted to, and is assigned'for error. It is contended that the common law rule, that the principal must be tried and convicted before the accessory can be tried, must prevail in a proceeding under our statute. We think the legislature have made the crime, with which the defendant is charged, a substantive, independent offense, not in any way dependent for its punishment on the conviction of the principal offender.

The 36th section of the statute reads thus:

“ That if any person shall aid, abet, or procure any other person to commit any of the offenses by this act made criminal, every person so offending, shall, upon conviction thereof, be imprisoned in the penitentiary, and kept at hard labor, for any time between the respective periods for which the principal offender could be imprisoned for the principal offense ; or if such principal offender would, on conviction, be punished with death, or be imprisoned for life, the said aider, abetter, or procurer shall be imprisoned for life, or punished with death, as the occasion may require.”

The language of this section, so far from making the punishment necessarily follow the conviction of the principal offender, appears to preclude the idea. The aider, abetter, or procurer, in penitentiary cases, punishable for a term of years, is to be kept at hard labor for any time between the respective periods for which the principal offenders could be imprisoned for the principal offense; and in other cases “if such principal offender would, on conviction, be punishable with death, or imprisonment for life, then,” etc., clearly, as we think, making the party amenable to punishment, without any reference to the conviction of the principal. If the common law rule prevails under our statute, as no exceptions are made, then no accessory can be tried until the principal has been convicted. This rule, on account of its impracticability, has long since been very much modified by statute, even in England, and it is hardly to be supposed that oui legislature should have intended to adopt this old rule, with all its palpable imperfections.

We are, however, referred to a decision in 3d Massachusetts Reports 126, Commonwealth v. Andrews, where, under a statute claimed to be similar to ours, the court set aside a special verdict, on the ground that the defendant, who was an accessory, was tried before the principal had been convicted.

The Massachusetts statute, on which this decision was made, differs, as we think, very materially from ours. That statute provides that whoever shall aid, abet, etc., any person to commit any of the crimes before specified, shall be considered accessory to the principal offender; and in ease the principal offender be not known or prosecuted, any person committing any of said crimes, whereby he becomes an accessary, may be prosecuted for a misdemeanor.

It will be seen that this statute makes a distinction between the two classes of cases specified; providing distinctly in the last case, under certain circumstances, as where the principal offender was not known or prosecuted, that the accessory should be amenable to punishment, as for an independent offense.

As the defendant in that case was indicted under the first specification of the statute, (which the legislature had distinguished from the 2d, where the party was liable as for an independent offense,) the court decided that, as to that part of the statute, the common law rule must prevail, and that the principal must first be put on his trial before the accessory can. This is a decision that we think sustains, rather than conflicts, with the view which we have taken of our statute. We can see no error in the ruling of the court of common picas on this branch of the case.

On the trial, the state called Hillery Weeden, the person whom the defendant, Noland, is charged with aiding and abetting in stealing the horse, as a witness. The defendant’s counsel objected to his testifying, on the ground- that he was a co-defendant, and, therefore, until his case was disposed of, he could not be called a witness.

In 1st Greenleaf 363, the rule is laid down that persons jointly indicted, cannot be witnesses for or against each other, unless the. prosecution has been put an end to, by acquittal, conviction, or nolle prosequi, and that the rule applies where the parties are tried separately. Now we do not see any reason whatever for the rule when the parties are separately tried. A witness is clearly competent, although he may be charged with the same offense, in a separate indictment. When a severance takes place, and the parties are 'separately tried, it is to all intents and purposes, as if they were charged in separate indictments, and why they should be competent witnesses for or against each other in the one case, and not in the other, appears difficult to determine. But even if the rule contended for be well established, we think it would not apply to the present case. Although the indictment, setting forth the offense of the defendant, Noland, necessarily contains the charge of the horse being stolen by Weeden; yet they are not jointly charged with the same offense, but with different and distinct offenses. We think Weeden was a competent .witness.

The court charged the jury that the testimony of Weeden, the accomplice, was sufficient of itself to convict the defendant; but charged also, that the testimony of Weeden was corroborated by the testimony of one Enoch Matson, who had testified that some time during the last year he had heard a conversation between Weeden and the defendant, in which the defendant said Sheldon’s is a good horse, and ought to be moved, which testimony the court charged was corroborative of the testimony of Weeden (who had testified to the same words), in a matter material. This charge is alleged to be erroneous.

On the first question embraced in it; whether the testimony of an accomplice, uncorroborated, is sufficient to warrant a conviction, the court does not fully concur in opinion.

In charging that the testimony of Matson corroborated the testimony of. Weeden, in a material matter, we think the court of common pleas erred.

The weighing of testimony, and giving it., its proper effect, is especially the province of the jury. Now Noland, saying that Sheldon’s was a good horse,,and ought to be moved, could not be corroborative of the testimony of Weeden, in a material matter, unless it related, or in some way connected itself, with defendant’s agency in stealing the horse. If it related to something else than the stealing of the horse, then it was immaterial, and could not be said to be, in legal effect, a corroboration.

To determine this was exclusively the business of the jury.

The evidence of accomplices in crime should be very' cau tiously received, and should in all cases be suspiciously scrutinized by a jury.

From the fact that the witness is shown to be void of moral principle, so much so that in a case like this it is considered unsafe for him to be at large in community, that when his punishment commences he is forever debarred from testifying in any case, the dictate of common sense would appear to be against relying with much confidence on his veracity.

For this error the judgment of the court of common pleas must be reversed.

This is the only error that we have discovered in the record, and we do not think it necessary to refer specifically to the other errors assigned.

Judgment reversed.


text:
    Lessee of Franklin Myers and others v. Adam Moore.
    Upon the trial of a cause by the court, where the record of a decree and proceedings in chancery is offered in bar of the plaintiff's right to recover, and the decision is that it constitutes no bar, the defendant may except; and if he obtains a bill of exceptions, setting out the proceedings, he may review the judgment of the court on a writ of error.
    This is a writ of error to the Supreme Court for Hamilton.
    So much of the statement of the case as is necessary to understand the point decided, will be found in the opinion of the court.

      James Riley, for plaintiffs in error.

      Charles Fox, for defendant.
   Avery, J.

The plaintiffs in error commenced an action of ejectment before the common pleas of Hamilton county, against Adam Moore.

The case was submitted to the court, and determined in favor of the plaintiff in ejectment. The defendant obtained a bill of exceptions, containing the evidence in the case, and the points decided, and made the same a part of the record. This bill, after setting out the necessary facts to establish the plaintiff’s title to the land, and to show his right to recover a judgment, contains, as exhibited on the part of the defendant, a transcript of certain proceedings in chancery, before the court of common pleas of said Hamilton county, commenced on the 8th of November, 1814. The proceedings were in the name of Jacob Burnett, James Findley and William H. Harrison, as complainants, against the heirs of Enoch Morgan, deceased; they were instituted upon a mortgage of the premises, executed by said Enoch Morgan to said Burnett, Findley and one William McMillen, and resulted in a decree by which said heirs were forever foreclosed of all equity of redemption of the premises, in the complainant’s bill specified.

The court of common pleas decided that the proceedings in foreclosure above mentioned, were not binding upon the heirs of said Enoch Morgan, and would not prevent their recovering, in the action of ejectment.

When the cause was brought, by writ of error, before the supreme court in Hamilton county, the judgment of the common pleas was reversed for the following cause, to wit: “ That the said common pleas decided that the record of foreclosure, referred to in the bill of exceptions, was not a bar to the recovery sought by the plaintiff.”

The question for this court to decide, is, whether there is errhr in the judgment aforesaid, of the supreme court. It is found upon an examination of the bill of exceptions, that all the questions which can be raised in the present case, touching the validity and sufficiency of these proceedings in chancery, upon the mortgages, have already been decided by the court (18 Ohio Rep. 535), and unless we are to overrule that decision,, the judgment now before us, of the supreme court of Hamilton • county, must, as to the point therein determined, be sustained.

But it is insisted for ,the plaintiff in error, that there is a formal, though fatal defect in the proceedings before the court of common pleas, and as a consequence of that defect, that no. foundation is laid for reviewing upon a writ of error, the judgment of that court.

The record from the common pleas, does not show that after judgment was rendered by that court, a motion was made for a new trial, that motion overruled, and an exception taken to the decision of the court overruling the motion.

The bill of exceptions, after reciting all the evidence offered, states, as follows, that the counsel for the plaintiff claimed that the decree in the foreclosure suit was void, erroneous and fraudulent on its face, and on the evidence above set forth; and that the defendant’s counsel claimed that the proceedings upon the foreclosure suit were, valid and binding upon the parties and all claiming under them, till reversed, and asked the court to decide that the decree and proceedings in chancery were a bar to the plaintiff’s right to recover; and further to decide upon the whole evidence, against the plaintiff’s right to recover. But the court of common pleas decided that the said decree and proceedings were not binding upon the lessors of the plaintiff, and did not preclude them from recovering in the action, and also decided, upon the whole evidence, that the plaintiffs were entitled to recover; to which several decisions of the court, the counsel of the defendant excepted, and prayed that his exceptions might be signed and sealed, which was done.

According to the statute, if a party alleges an exception to any opinion, order or judgment of the court, it is the duty of the judges concurring in the judgment, opinion or order, if required, to sign and seal a bill of exceptions. And this may be done at any time during the term, either before or after the judgment is entered upon the journal. In this case it is shown that the record of a decree, and of other proceedings in chancery, was exhibited, and was before the court as evidence, and further, that the defendant’s counsel asked the court to decide that the record constituted a bar to the plaintiff’s right to recover.

The court decided the question, but decided it against the defendant. If it had been determined otherwise, the judgment would have been given, of course, in his favor. .To the decision so made, the defendant excepted, and obtained a bill of exceptions, signed and sealed by the court — thus maintaining to the last, his objection to the decision, and placing the evidence of it upon the record. The objection is not well taken. In the opinion of this court, the record before us shows a sufficient compliance with the statute, to furnish a warrant for the proceedings in error.

Upon the merits, then, of the controversy between these parties, and upon the formal objection raised, we are of the opinion that the judgment of the supreme court, rendered in Hamilton county, .was not erroneous, and therefore affirm that judgment.


text:
    The State of Ohio v. James Summons.
    The court will not, as a matter of course, admit to hail because the jury in a trial for murder have not agreed upon a verdict.
    If the evidence exhibited on the hearing of the application, be of so weak a character that it would not sustain a verdict of guilty, against a motion for a new trial, the court will admit to bail.
    This is a motion to let to bail, reserved in Hamilton county.
   Spalding, J.

The defendant stood indicted, in' two several indictments, for murder in the first degree, both of which were tried at the last term of the supreme court for Hamilton county.

In both cases, the jury were unable to agree upon a verdict, and were consequently discharged by the court; whereupon a motion was made to admit the prisoner to bail, upon the ground, that the disagreement of the jury rebutted the fact that “ the proof was evident, or the presumption great,” of his guilt, and entitled him to his liberty “by sufficient sureties.”

This motion was reserved for the consideration of all the judges.

As the question is now submitted- to this court, we feel bound to refuse the motion. It is by no means addressed to our legal discretion upon the insufficiency of the evidence adduced in support of the charge, but sets up a claim to be let to bail, predicated solely upon the disagreement of the jury.

The constitution of Ohio, in article 8, section 12, provides, “ That all persons shall be bailable by sufficient sureties unless for capital offenses, where the proof is evident, or the presumption great."

The inquiry naturally springs up, “ Who is to decide whether the proof be evident, or the presumption great ?” Most undoubtedly the same authority which prescribes the amount of bail, and passes upon the sufficiency of the sureties; the judges of the court who exercise this same power in all analogous cases known to our laws.

The fact that the testimony given on the trial, did not produce full conviction of guilt in the minds of the twelve jurors, would be a strong circumstance -to urge to the court when invoked to the exercise of so high a discretion as that of admitting to bail a prisoner charged with the crime of murder; this fact would come.with redoubled force, if, as in the present instance, a second jury should fail to agree upon a verdict, with the same evidence applied to another indictment for the same offense.

But, however numerous such results, they could never amount to a rebuttal of the fact that “ the proof was evident or the presumption great.” In other words, they would never amount to a constitutional requisition upon the judges to admit the prisoners to bail. The appeal must still be addressed to the discretion of the court; a sound legal discretion it is true, but one that can only be moulded into action by the evidence brought to bear upon the indictment.

Other influences often tend to produce the disagreement of the jury.

One obstinate or corrupt juror, in a body of twelve, will be more commonly successful in preventing a verdict, than insufficient testimony. Where the evidence fails fully to satisfy the mind of the guilt of the prisoner, especially in a capital case, the jury are apt to render a verdict of acquittal.

N. C. Read, for the prisoner.

Henry Stanbery, (attorney general,) for the state.

If perverseness or corruption be at work in the jury-box, a disagreement ensues as the inevitable consequence.

It is said in the case of the “ Commonwealth v. Keeper of the Prison," 2 Ashmead 227, that “ A safe rule, where a malicious homicide is charged, is, to refuse bail in all eases, where a judge would sustain a capital conviction, if pronounced by a jury, on such evidence of guilt as was exhibited to him on the hearing of the application to admit to bail; and, in instances where the evidence for the commonwealth is of less efficacy, to admit to bail.”

So with us in Ohio, if the evidence exhibited on the hearing of the application to admit to bail, be of so weak a character that it would not sustain a verdict of guilty, against a motion for a .new trial, the court will feel it their duty, under the constitution, to adjudge the prisoner “ bailable by sufficient sureties.”

If, however, instead of a disagreement, the first jury had acquitted the prisoner, he would then have been let to bail upon the second indictment, upon the ground that the acquittal afforded such a presumption of his innocence of the identical charge, reiterated in the.second indictment, as to warrant the court in taking his recognizance. Green's Case, 2 Leigh 677.

Tfie motion will be overruled.


author: Hitchcock, C. J.

text:
    Courtland Shepherd v. James Willis.
    A person who is present during the trial of a case, and has heard witnesses describe the manner in which a ford is injured by the erection of a dam across a stream of water below it, is not competent to give his opinion of the damages sustained by the party injured.
    A deposition taken and read in one case cannot afterwards be used in evidence in another case between the same parties, in a trial upon the same subject matter, merely because the deponent at the time of the second trial, is not within the jurisdiction of the court.
    A verdict and judgment in an action for the erection of a nuisance are not conclusive evidence of the plaintiff’s right to recover in a subsequent action between the same parties, for the continuance for the same nuisance.
    This is a writ of error to the Court of Common Pleas of Washington county.
    The action below was a case in which the defendant in error was plaintiff. ,
    The declaration contained three counts. In the first the plaintiff alleged that he was possessed of a certain saw mill and premises in the township of Union, in said county, on the 19th of March, 1849, and was still possessed of the same, near to a certain water-course called Rainbow creek, which water-course flowed, and of right ought to flow, to and from said mill. Notwithstanding which, the defendant, on the day aforesaid, and hitherto, hath kept up and continued across said water-course, a certain dam, by him theretofore erected, and thereby raised the water in said creek to an unusual height, and caused the same to flow back upon the water wheel of the plaintiff’s saw mill, impeding its operations, etc.
    The second count is like the first, as to the erection of the alleged nuisance, and the injury complained of is the overflowing of the plaintiff’s land.

      In tbe third count, the injury alleged has relation to certain fords over the creek upon plaintiff’s land.
    To the declaration, the defendant filed a plea of not guilty
    At the July term of the court of common pleas, 1850, the case was submitted to a jury, which returned a verdict in favor of the plaintiff below, and judgment was entered on the verdict.
    During the progress of the trial, exceptions were alleged to various decisions of the court, and after the trial was closed, a bill of exceptions was signed and sealed by the judges, and made part of the record.
    From the bill of exceptions, it appears that during the trial, after testimony had been given, showing the nature of the injury sustained by the plaintiff, a witness who had heard the testimony, and who was acquainted'with the mill of the plaintiff, was asked, from what he knew of the mill, and from what had been stated by the witnesses, what he would put the damages at, were he in the plaintiff’s situation.
    This question was objected to, but the witness was allowed to answer it, and the defendant excepted.
    In the further progress of the case, "the plaintiff offered to read in evidence, certain depositions which had been taken by him in a previous case, between the same parties, brought to recover damages for the same nuisance complained of in the case then on trial. These were objected to, but the objection was overruled, and the defendant excepted.
    The plaintiff also produced in evidence, the record of a judgment rendered in a ease between the same parties, in which the plaintiff had recovered of the defendant for the same nuisance, and the court charged the jury that the verdict and recovery in that case were conclusive as to the plaintiff’s right to recover in this. To this charge of the court, the defendant excepted.

      Simeon Nash and J. Welch, for plaintiff in error.

      C. B. Goddard for defendant.
   Hitchcock, C. J.

The errors complained of in this case, are disclosed by the bill of exceptions, and may be considered in the order in which they are assigned. The bill of exceptions shows that the plaintiff below, having offered in evidence, the record of a judgment rendered in the court of common pleas of Washington county, in favor of said plaintiff against the defendant, in an action for a nuisance identically the same as set forth in this case, and for the continuance of which nuisance this suit was prosecuted, in order to show the extent or amount of damage, called to the stand Ezra Mitchner, as a witness, and propounded to the witness the following question: “ From what you know of the mill of the plaintiff, and from what the witnesses have on this trial stated, as to the fords, and said lands so flooded, what would you put the damage at, were you in his situation ?” This question was objected to by the defendant’s counsel, and the court overruled the objection, and permitted the witness to answer the question. To this ruling of the court, exception was taken, and it is assigned for error that the court so ruled.

Before the question was propounded, the witness had stated that he had repaired tire mill in 1848, after the dam of the defendant was built. Being acquainted with the premises, he might, perhaps, be permitted to express an opinion as to the amount of damage. But this is somewhat doubtful. He was called, upon, however, not only express an opinion, not alone from his own knowledge, but from what he had heard testified in court, and the reason assigned for it in argument, is, that he was a mill-wright, and, therefore, from science, would make a better estimate than ordinary men. So far as thje injury to the mill is concerned, this might possibly be the case, but I cani’ot perceive how his mechanical knowledge would give him any peculiar qualification to judge of the injury to the fords or to the land, from being overflowed. Besides, the question was objectionable on another ground. The witness was not called upon to estimate the damages as an abstract proposition, but he was called upon to state what he would estimate the damage to himself, provided he had been the owner of the property.

We think the court should not have permitted the question to have been answered, but we should regret to reverse the judgment in the case, were there no other error.

In the further progress of the case, and after the defendants had closed their testimony, the plaintiff offered, as rebutting evidence, the depositions of Alfred Kelley and Samuel Eorrer. These depositions had been taken in the former case between the same parties, upon the same subject matter. They were objected to, but the objection was overruled, and the depositions read to the jury. This is assigned for error.

The ground of objection to these depositions, was, that they were not taken in this case, and, therefore, not competent testimony. It is insisted by the defendant in error, that these depositions were properly received, because the deponents were not within the jurisdiction of the court, that is, not within the county of Washington at the time of the trial, although they are residents of the State of Ohio, and that under these circumstances it was proper to receive the dep ositions, and had the deponents testified in open court, on the former trial, the testimony thus given by them, might have been proven by other witnesses. But admitting such to be the rule of law, there is still a difficulty in this case. The bill of exceptions, as we understand it, does not show that the witnesses were not, in fact, at the time, within the county of Washington. After the statement in the bill of exceptions, that the depositions were offered, it is added, “ said plaintiS offered no evidence to show that said Samuel Eorrer and Alfred Kelley were not in full life, and that their testimony could not again be obtained as before.” From the latter clause of this extract, it might be inferred that the deponents were not within the county, but there is no express allegation to that effect.

But admitting that the deponents were not within the ju risdiction of the court, does it follow that their depositions were competent testimony in this case ? Cases have beem cited by defendant’s counsel to sustain the position, that where a witness has been examined in the trial of a case between two parties, if he leaves the jurisdiction, and a subsequent trial is had between the same, parties, upon the same subject matter, witnesses may be examined to prove what this testimony was on the former trial. The authorities cited from Pennsylvania sustain this position. In those cases, however, the witnesses had left the state. The elementary writers referred to seem to favor this principle.

This court, however, have never admitted this kind of hearsay evidence, unless the witness originally testifying was dead, and to my mind it is extremely doubtful, whether on the whole, the admission of hearsay evidence, even to this extent, is conducive to the ends of justice. Where the attempt is made to prove what a deceased witness testified, the evidence is almost invariably conflicting, and the attention of the jury will be turned from the inquiry upon the issue between the parties, to the inquiry as to what the deceased witness testified. Aware of this difficulty, this court at one time established the rule, that no one should be allowed to testify as to the evidence of a deceased witness, unless he would give the words, and all the words, of that witness. This rule, however, has been departed from, and we now require evidence of the substance of the former testimony. True, there is not the same danger, where the testimony of the witness has been reduced to writing, and is in the form of a deposition. But the same rule must be applied, whether the testimony was in writing, or whether it was given by parol in open court. It is the proof of evidence given in another ease, intended to have effect upon a case in which it was not given.

As before remarked, this court has never admitted this description of evidence, unless the witness first testifying was dead, and this practice, we believe, is sustained by the decisions of the courts in most of the states. We are not prepared to say there might not be other circumstances which would justify an extension of the rule, as, for instance, where the first witness was insane. But to extend the rule so far as to admit this hearsay evidence, because the first witness happened, at the time of the second trial, to be out of the county, would be followed by dangerous consequences. We do not believe it to be consistent with the rules of law, and, in our opinion, the court of common pleas clearly erred in the admission of these depositions.

The court, in charging the jury, instructed them, that the former verdict and judgment were, as evidence, conclusive, as to the plaintiff’s right to recover in this case.

From my earliest reading upon the subject of actions for nuisances, I recollect the impression was made upon my mind, that the first action commenced, was not so much to recover damages, as to establish the fact that the thing complained of was a nuisance, and that it had been erected, or was sustained, or kept up by the defendant. This fact being established, if the nuisance was continued, the plaintiff might have another action for the continuance, and so on, from time to time, if the nuisance was continued. And in the subsequent actions, the plaintiff might recover, not only compensatory, but exemplary damages; such damages as would make it for the interest of the defendant to abate the nuisance. Or the plaintiff might, by proceeding in chancery, compel the abatement. In such subsequent cases, the plaintiff might give the record of the first verdict and judgment in evidence, and if there had' been no change in the state of facts, if the nuisance remained identically the same, it would be conclusive of- the plaintiff’s right to recover. But if there had been any change, as if, for instance, the nuisance complained of, was the flowing back of water, by a dam across a stream, if the height of the dam had been, to any extent, reduced, the question would be still open whether it was or was not a nuisance. Admitting such to be the law, parol evidence must be given to the jury, and from this evidence the jury must determine whether there had or had not been any change, and if not, then the former verdict and judgment would be conclusive. Now apply these principles to the case under consideration. The former verdict and judgment were in evidence, and there was much other evidence in the case. The court, without leaving the jury to inquire whether there had been any change, assumed that there had been none, and instructed the jury that the verdict and judgment were conclusive of the plaintiff’s right to recover. Admitting, then, the correctness of the general doctrine as contended for by counsel for defendant in error, we think the court were wrong in the instruction given, in the unqualified manner in which it was given.

But although such was my early understanding of the law upon this subject, the practice in Ohio, it is believed, has been uniformly different. I have no recollection of the trial of a case of this character, whether it was for the erection, or for the continuance of a nuisance, in which the plaintiff has not been held to prove the nuisance. I have no recollection of any case, in which it has been holden that a prior judgment was conclusive of the right of a plaintiff to a second recovery. After a uniform practice of this character for a period of nearly fifty years, we feel ourselves compelled to say, that in this state, such former verdict and recovery is not conclusive evidence. It is too late now for the court to change this rule, for the purposes of this case. If a change is to be made, it is better, as was well remarked by counsel, that it should be made by the law-making power.

The judgment of the common pleas is reversed with cost, and the cause remanded for further proceedings.