author: Johnson, J.

text:
    Peters v. McWilliams.
    1. The consent of parties to a judgment in open court, at the time it is rendered, that one or more of the defendants may be certified as-sureties, as provided in section 449 of the civil code, is sufficient, without other evidence, to authorize the entry of a certificate of such suretyship.
    2. In the record of a judgment against three persons, it appears that, on motion and by consent of parties, the judgment is to stand against one as a surety only. Held, that this is a sufficient certificate that he is-such surety, to authorize him to maintain an action to revive said judgment after it has become dormant, under the provisions of the act of February 6, 1871, 68 Ohio Lr 17, 18.
    8. This statute was passed and took effect after payment by such surety, and after the judgment became dormant, but before the right in equity to be subrogated was barred by the ten-year limitation, prescribed by the civil code.. Held, that such surety could maintain an action to revive the same, under the provisions of said statute, in his own name, to the same extent as the plaintiff in the judgment could, if it had not been paid, notwithstanding more than ten years have elapsed since-payment by the surety.
    4. Where the right of a surety to relief is a subsisting one, the provisions. of this statute are not retroactive, within the meaning of article 2, section 28, of the constitution; neither do they impair or divest any vested right of the principal debtor.

      5. The enactment of this statute is not the exercise of judicial functions, but is within the legislative powers of the general assembly.
    Error to the District Court of Marion County.
    This is a petition by the original plaintiff, to reverse the-district court, which reversed a judgment by the common pleas of Marion county, in his favor.
    At the February term, 1859, March 1, 1859, the Marion Deposit Bank recovered a judgment by confession upon warrant of attorney, against Gordon McWilliams, John McWilliams and Ebenezer Peters, the plaintiff herein, as drawers of a bill of. exchange, for $2,009.33 and costs. As part of the journal entry recording the judgment, is this-entry; “ On motion and by consent of parties, this judgment is-to stand against Ebenezer Peters as surety only.”

      After sundry proceedings by tlie judgment creáÜor, against the principal debtors, part of said judgment was paid, leaving a balance due thereon of $636.15.
    February 25, 1861, Ebenezer Peters, as surety, paid to the plaintiffs in execution this balance, taking their receipt for the same, as paid by him, in full, except costs, which he was to pay.
    February 11, 1866, this judgment became dormant, the last execution having been sued out February 11, 1861.
    January 31, 1871, Peters commenced this action against John McWilliams, stating therein that Gordon McWilliams, his co-principal, had left the state, and had been adjudged a bankrupt, and praying that the judgment, in part paid by him, be revived in his name and for his benefit, and for other relief.
    The plaintiff founds his right to recover upon the act passed February 6, 1871 (68 Ohio L. 17), amending the act of March 19, 1868 (S. & $. 711), which was supplementary to the code of civil .procedure.
    A demurrer to the petition was sustained, on the ground that more than ten years had elapsed, from the time of payment by Peters to the commencement of the action. The time, from February 25, 1861, to January 31, 1871, being nearly thirteen years.
    On en'or to the district court, the judgment sustaining this •demurrer was overruled, and the case was remanded to the common pleas, where there was filed an answer and reply, and a trial had on the issnes joined, resulting in a judgment in favor of plaintiff.
    Upon a motion for a new trial being overruled, a bill of exceptions was taken by defendant, setting out all the evidence^ .and the case was again (after an ineffectual effort to appeal), taken upon error to the district court, by the defendant.
    At the April term, 1877, the district court reversed this judgment of the common pleas, and sustained the demurrer to said petition, and again remanded the case for further proceedings.
    The answer and reply presented certain issues of fact, passed upon-' by the court. The motion for a new trial sought a review of these findings.
    As the court is of the opinion that the evidence contained in the bill of exceptions fully sustains the allegations of the petition, leaving the sufficiency of said petition as the only question for decision, no further statement of facts is necessary,

      1L T. Van Fleet, for plaintiff in error.
    IF. Z. Davis, for defendant in error.
   Johnson, J.

The statute under whicli-this action is brought is as follows:

u An act to amend an act, passed March 19, 1868 (S. & S. 744), entitled. ‘ an act supplementary to an act entitled an act to establish a code of civil procedure,’ passed March 11, 1853. S. & 0. 940.

Section 1. Be it enacted by the General Assembly of the State of Ohio, That the said supplementary act be amended as follows:

“ Section 1. That in any case in which a judgment has been or may hereafter be rendered in any court, whether a court of record or not, against two or more persons in which it is certified that one or more of said persons against whom such judgment was rendered is or are surety or sureties, or bail, such surety, sureties or bail, if he, she or they shall pay, or ha/oe paid such judgment or any part thereof, shall, to the extent of such payment, stand in the place of and ha/oe all the rights and remedies against the principal debtor or debtors that the plai/ntiff therei/n had at the time of such payment; and if such judgment at the time of such payment is, or shall thereafter become dormant, the surety, sureties or bail so paying, shall have the right to revive the same as the plaintiff might have done if the payment had not been made ; but all process and proceedings for or on behalf of such surety, sureties or bail, shall be in the name of such surety, sureties or bail, or their legal representatives, and no costs in that behalf shall accrue against or be taxed to the plaintiff in the original action.

Section 2. Said supplementary act is hereby repealed, and this act shall take effect from its passage.

“ Passed February 6, 1871.”

The act of 1868 applied only to judgments of courts *of record; while this embraces all judgments, whether in a court of record or not.

The privileges conferred by the act of 1868 are to sureties or bail, “ if he, she or they shall pay said judgment or any part thereofwhile by the act of 1871, “ if he, she or they shall pay, or home paid such judgment or any part thereof,” &c.

By the decision in Neal v. Nash, 23 Ohio St. 483, a suit in equity by a surety in a judgment, to be subrogated to the rights of the creditor against the principal debtor, would have been barred in ten years.

In Neilson v. Fry, 16 Ohio St. 552, it was held, that an •action for contribution against a co-surety, and for subrogation, was barred in six years.

The act of 1871 was passed and took effect February 6, 1871; nineteen days before the expiration of the ten years after payment by the surety of the balance due on this judgment.

These facts present the question raised by the demurrer to the petition, whether, under the act of 1871, plaintiff is entitled to have this dormant judgment revived in his name. •

In support of the demurrer it is claimed :

1st. That Peters is not a certified surety within the meaning ■of the statute, and as such entitled to the benefit of the act.

2d. But if he is, then, that the act of 1871 should be con-strued prospectively, and made to apply only to judgments rendered and payments made after the passage of the act.

3d. If this cannot be done, then it is insisted that the act is unconstitutional, so far as it affects prior payments; 1st. Because it is in violation of section 28 of article 2 of the con•stitution, prohibiting retroactive laws ; 2d. Because it is in ■conflict with section 19, article 1, as interfering with vested rights of property; and 3d. Because the act is the exercise of judicial, instead of legislative power.

Of these in their order.

1st. Is Peters a certified surety, within the meaning of the ■statute ?

The judgment was rendered by confession, upon a warrant of attorney executed by all the drawers of a bill of exchange, and is against all of them in the usual form. Then follows the entry, “ On motion and by consent of parties, this judgment is to stand against Ebenezer Peters, as surety only-;” that is to say, it is by the consent of all parties, defendants as well as plaintiff, agreed that, although the judgment is in form against all as principals, yet Peters is to stand as a surety only, as to the rights of the plaintiff to collect the same. It is obvious that it was the intention of all parties, by this entry, to give Peters the rights of a surety, under section 449 of the civil code. Section 449 provides that where a judgment is rendered upon an instalment of writing, “ and it shall be made to appear to the court, by parol or other testimony, that one or more of said persons so bound signed the same as surety or bail for his or their co-defendant, it shall be the duty of the clerk 'Of said court, in recording the judgment thereon, to certify which of the defendants is principal debtor and which are sureties or bail.”

It further provides, that the execution shall command the officer to exhaust the principal debtors’ property, before levying the same on the property of the surety.

The fact of suretyship, is to be found by the court, by parol or other testimony.”

In this case the record does not disclose what, if any, testimony was heard, other than that the parties all consented that Peters should stand as such surety. There may have been other testimony than the confession of the parties, but if not, this was of itself sufficient to warrant the court in finding that Peters was a surety.

We think such an admission in open court, by the plaintiff ■alone, was of itself sufficient to bind the plaintiff and to warrant the court in finding that Peters was surety, and in making the certificate under this section of the code. But the record goes beyond this, and shows that all the parties, defendants, as well as plaintiffs, consented to this entry. Surely this is sufficient to warrant such finding, and to authorize the certificate of suretyship.

The fact that such an entry was made by consent obviates the necessity of other evidence. The admission of the fact by the parties, warrants the certificate, as fully as the confession of the judgment on the cause of action warrants an entry of judgment itself against the defendants.

But it is said the certificate is defective, because it does not certify who are principals, or that John McWilliams was a principal, and is not therefore a good statutory certificate.

It is true, the certificate fails to expressly specify who are principals, but this entry, following a judgment against all three, as joint drawers of a bill of exchange, who are, prima facie, all principals thereon, clearly implies that the other two defendants are admitted principals to the judgment entered against them by their confession. We think this was a good statutory certificate, and entitled Peters to the right, under section 449, to have the princij>al debtors’ property first exhausted. Neither the judgment creditor nor his co-defendants could complain.

But the question is not, whether this was such a certificate as entitled Peters to the benefit of section '449 of the code, but, was plaintiff a certified surety, within the meaning' of the act of 1871?

This act provides, that in any case in which a judgment has been, or may hereafter be rendered against two or more persons, in which it is certified that one or more are surety or sureties, or bail, such surety or sureties, or bail, shall have the lights and remedies conferred by the act. These rights and remedies are additional and cumulative to those conferred by section 449. They are for the benefit of all persons who are certified as sureties, whether the certificate expressly states who are principals, or whether it appears from the form of the judgment that they are such.

We hold, therefore, that this entry by consent is, upon its face, equivalent to, and has all the legal force and effect of a formal certificate founded upon parol or other testimony, and entitles Peters to the rights and remedies conferred, upon certified sureties by the act of 1871.'

It is claimed that this act should be construed prospectively, and if this cannot be done, it is unconstitutional as to plaintiff.

Plaintiff, as surety, made his payment nearly ten years before the act was passed. By its express terms it is made to apply to judgments already rendered, as well as to those to be thereafter rendered, and its rights and remedies are extended to ail certified sureties on any such judgments; “ if he, she or they shall pay, or have paid such judgment or any part thereof.”

In the general and most comprehensive sense of the term, this statute, so far as it relates to judgments rendered, and payments made before its passage, may be said to be retroactive ; but in a more limited and accurate legal sense, it in effect is prospective only in so far as' it applies a new remedy to an existing right.

The judgment was rendered and payment made, before the act was passed, but it was clearly the intention of the legislature to extend the remedies conferred to existing, as well as future judgments and payments.

The words of the statute admit of no other construction.

3d. Is it unconstitutional so far as it applies to judgments rendered, or to payments made thereon, before the act was passed ? •

All legislative power is vested in the general assembly, by article 11, section 1 of the constitution of Ohio, subject to the limitations and restrictions contained in othei provisions of that instrument, and in the constitution of the United States. West. Union Telegraph Co. v. Mayer, 28 Ohio St. 521; Baker v. Cincinnati, 11 Ohio St. 534; Lehman v. McBride, 15 Ohio St. 573 ; Cincinnati v. McCann, 21 Ohio St. 198.

One of these limitations on the legislative power is contained in section 28 of article 2, viz. : “ The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties and officers, by curing omissions, defects and errors, in instruments and proceedings arising out of their want of conformity with the laws of this state.”

Tt is clear that this section prohibits all retroactive legislation, that takes away or impairs vested rights, creates new obligations, or imposes new legal duties or disabilities, in respect to past transactions. Rairden v. Holden, 15 Ohio St. 207; Goodale v. Fennell, 27 Ohio St. 426.

It is equally well settled, that statutes purely remedial in their operation on existing rights, duties and obligations, are not within the mischiefs against which this clause was intended to guard. Trustees of Green Tp. v. Campbell, 16 Ohio St. 11; Rairden v. Holden, 15 Ohio St. 207: Seeley v. Thomas, 31 Ohio St. 301; Westerman v. O’Neal, 25 Ohio St. 500; John v. Bridgman, 27 Ohio St. 22; State v. Richland Tp. 20 Ohio St. 362 ; L. M. R. R. Co. v. Green Co., 31 Ohio St. 338.

When this act was passed and took effect, there was an existing legal obligation by the principal debtor to repay to the surety the amount he had paid for his benefit.

• An action in equity to be subrogated to the rights of the creditor could have been sustained. Neal v. Nash, supra.

This legal obligation was strongly supported by public policy and moral duty.

The debtor had no vested right in the existing statute of limitations that could have prevented the legislature from repealing it, or extending the time in which the plaintiff could bring his action to be subrogated beyond the ten years.

Instead of doing this, the acts of 1868 and 1871 gave to the certified surety an additional and cumulative remedy.

It provides that where he shall pay or shall have paid such judgment, in whole or in part, he shall, “ to the extent of such payment stand in the place of, and have all the rights and remedies against the principal debtor or debtors, that the plaintiff therein had at the time of such payment.” It further provides, that if the judgment is then, or shall thereafter become dormant, the surety or bail so paying, “ shall have the right to revive the same, as the plaintiff might have done if the payment had not been madebut all process and proceed-' ings must be in his own name.

No one doubts, but that the plaintiff • could have revived this dormant judgment in 1874, if it had not been paid.'

The statute confers this right of reviver upon the certified surety. The ten years limitation, which would have barred an action by him to be subrogated, was no bar to the judgment creditor’s remedy by revivor. The statute substitutes the surety in his place, and gives him all the rights and remedies that he possessed, including the remedy by revivor.

If the defendant’s claim be well founded, then the surety was not fully placed in the creditor’s shoes, for his right to revive would be barred in nineteen days after the act took effect, while the judgment creditor’s right would have subsisted until by lapse of time a presumption of payment arose; or, as the statute now is, until twenty-one years from the time it became dormant. R. S. 5368.

The effect of this statute upon the case at bar is, to give the plaintiff, who had an existing demand on defendant, a cumulative remedy, not to be governed by the limitation of time, which would have barred an action in equity to be subrogated. This statute is dictated by sound public policy and tends to promote justice. No substantial right of the debtor is taken from him. He • has no. vested right to be shielded from the payment of his debts, and the existing statute of limitations does not so enter into and form part of the obligation of his contract, as that it may not be repealed or further time given, where the right to an action is not already barred.

Again, it is claimed that if this construction is the true one, then the act is unconstitutional, because it is the exercise of judicial and not legislative power. It is argued that the clause of the statute which invests the surety with the rights of the creditor upon his payment, is in the nature of a judgment of a court finding and declaring his rights.

This view is erroneous. The court still possesses all its judicial functions over the judgment. It is to determine all questions of fact and law that may arise as to whether there is :such a judgment as the statute describes, whether the plaintiff is a certified surety, whether, as such, he has paid the same or any part thereof, and whether it has become dormant. If these be shown, the statute has given him a right to revive in his own name. If the judicial determination of the case shows that the certified surety has paid the judgment for his principal, the statute authorizes him to have the same revived in his own name, by a judgment of a competent court.

It is merely an act giving to the surety, in his own name, the same remedy that existed in favor of the creditor. This is within the legislative power of the general assembly.

The judgment of the district court is reversed, and that of the common pleas is affirmed.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    Jaeger et al. v. Burr, Administrator, Etc.
    1. Where the cost of a street improvement is required to be assessed upon the abutting property hi proportion to frontage, the rate of assessment must be uniform upon all the property assessed.
    2. A petition to collect an invalid assessment is nevertheless good, under section 550 of the municipal code, where it appears that expense has been incurred in making the improvement which is properly assessable upon the property sought to be charged with the assessment.
    3. The irregularities and defects provided for in section 550, of the municipal code, relate to such as are attributable to the conduct of the municipal authorities therein named.
    Error to the Court of Common Pleas of Franklin County. Reserved in the District Court.
    The original petition was filed to enforce the collection of an assessment made for the improvement of Third street, in the city of Columbus, between Kossuth street and Reinhard avenue.
    The ordinance directing the improvement to he made, is as follows:
    “ An ordinance to grade and pave the unpaved sidewalks, "gutters and crossings, and grade and gravel the roadway on Third street, from Kossuth street to Reinhard avenue.

      “ Suction 1. Be it ordained by the City Council of the City of Columbus (two-thirds of all the members concurring), that the unpaved sidewalks, gutters and crossings be graded and paved, and the roadway be graded and graveled on Third ■Street, from Kossuth Street to Reinhard Avenue, in accordance with a plat thereof on file in the office of City Clerk.
    “ Section 2. That all damages, cost and expenses arising from the foregoing improvement, shall be assessed and levied upon the several lots fronting or abutting thereon in proportion to the feet front.
    “ Passed May 17th, 1869.”
    On June 22, 1809, a contract was entered into between the city and John (4. Bickel, the plaintiffs intestate, for doing the work. The contract contained this provision: “Under the head of grading shall be included all excavations or embankments in any way connected with or incident to the completion of the work herein contracted for. If there is more filling than cutting, the filling only to be paid for; if more •cutting than filling, the cutting only to be paid for.”
    The contract having been performed by the contractor, the following ordinance was passed on November 20, 1871, assessing the cost upon the abutting property :
    “An Ordinance
    ■“ To assess a special tax upon the real estate bounding Third Street from Kossuth Street to Reinhard Avenue.
    “ Section 1. Beit ordained by the City Govmoilofth-e City of Columbus, that the sum of three dollars twenty-one cents and ■eight and one-tenth mills be. and the same is hereby levied and assessed upon each foot front of the several lots of land bounding or abutting upon Third Street, from Kossuth street to Reinhard avenue, with a credit of two dollars sixteen cents and two and one-tentli mills to each foot front of lots Nos. 65, 66, 67, 68, 69, 70, 71, 72, 88, 89, 90, 91, 92, 93, 94, 95, as the same are designated upon the plat of the civil engineer, on.file in the office of the city clerk, for the cost of the expense of grading and paving the sidewalks, gutters and crossings, and grading and graveling the roadway along the same, according •to the estimate of the city civil engineer.

      “ Sec. 2. That the owners of the several lots of land upon, which the foregoing assessment is made, shall pay the amounts of money by them severally due in that behalf, to John G-. Biekel, within twenty days from the date of this ordinance, or be subject to the interest and penalty allowed upon the same-by law.”
    The prayer of the petition was that the court should find the amount due to the plaintiff as administrator of Biekel; and. that, if it should be of opinion that the assessment was valid, that judgment should be rendered charging the several lots with -the amounts assessed; but that if the assessment was found to be invalid, and that the amounts due the plaintiff were not a lien on the several lots, judgment should 6e rendered against the city for said amounts, and the prayer was also for general relief.
    Part of the defendants, Herman W. Jaeger, Doratha Ambos,. Abel Hildreth, and Christian Jaeger, demurred to the petition,, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer having been overruled, they filed an answer, in which they set uj), among other matters of defense, the following:
    “ First, That said credit allowed in said ordinance, was not for or in consideration of any work done by said Biekel, under or by virtue of said contract with said city, or of any contract with said city.
    “Second, That said assessment for and on behalf of said Biekel for the work done by him under and in pursuance of" his said contract is unequal in this : that the lots of these defendants are charged three dollars twenty-one cents and eight mills per foot on said street, and the other lots are charged one-dollar five cents and six mills per foot on said street, for said work so done by said Biekel.”
    The plaintiff filed a reply, a demurrer to which having been, overruled, the cause was submitted to the court for trial.
    It appeared on the trial, that the distance from Kossuth street to Reinhard avenue, on Third street, was 966 feet; and that the distance from Kossuth street to Schiller street,, an intermediate cross street, was 590 feet; that the north part' of the street improved, that between Kossuth and Schiller streets, required filling, and the south part required cutting. The original estimate of the cost of the improvement reported to the council, before the improvement was ordered, was two dollars and forty-eight cents per front foot; and this estimate, as shown by the testimony, was sufficient to have paid for the work, if it had been done under the contract.
    But after the improvement had been ordered, and before the contract with Bickel, most of the work north of Schiller street liad been done by the lot-owners whose lots abutted on that part of the street. The material from the cutting on the south part of the improvement was suitable for the filling on the north part; but as the filling by the lot-owners on the north part was independent of the work done by the con. tractor on the south part, the cost- of the work was increased, the material from the cutting not being used for the filling. Charging both cutting and filling makes the difference between two dollars and forty-eight cents, the estimated cost per front foot, and three dollars and twenty-one cents and eight and one-tentli mills, assessed against the plaintiffs in error.
    The credits provided for in the ordinance making the assessment consist of allowances made the lot-owners between Kossuth and Schiller streets, for work done by them before the making of the contract with Bickel.
    The court found the assessments valid, and rendered ’judgments accordingly for the full amount assessed.
    The plaintiffs in error filed a petition in error in the district 'court to reverse the judgments rendered against them respectively ; and the district court reserved the case for decision by this court/

      James L. Bates, for plaintiffs in error.

      Lorenzo English and Charles E. Burr, for defendant in error.
   White, J.

The statute in force at the time this improve- ' ment was ordered, required the assessment of its cost upon the abutting property to be either in proportion to the feet front, or to tke value of suck property as assessed for taxation, as the corporation in each case might determine. S. & 0. 3 501, § 26 ; Id. 1505, § 30.

The ordinance in this case, directing the improvement to be made, prescribed that the cost and expenses of the improvement should “be assessed and levied upon the several lots fronting and abutting thereon, in proportion to the feet front.”

The assessment sought to be enforced in this case was made in violation of this ordinance and of the statute. The assessment was not levied upon the abutting property in proportion to the feet front. The effect of the ordinance levying the assessment was to charge the 'abutting property, north of Schiller street, at the rate of one dollar live cents and six mills per front foot, and that south of Schiller street at the rate of three dollars twenty-oue cents and eight and one-tenth mills per front foot.

For whatever sum the assessment was made, it ought to have been levied at a uniform rate upon all of the property abutting on the improvement.

The court, therefore, erred in treating the assessing ordinance as valid, and in giving it effect.

It is claimed on behalf of the plaintiffs in error, that the court erred ,in overruling the demurrer to the petition. In view of section 550 of the municipal code of 3869, and of the character of the petition, we do not think so. That section provides that, “ If in any such action it shall appear, that by. reason of any irregularity or defect, whether in the proceedings of the board of improvements or of the council, or of any other officer of the corporation, or in the plans or estimates, the assessment has not been properly made against any defendant, or upon any lot or parcel of land sought to be charged, the court may, nevertheless, on satisfactory proof .that expense has been incurred, which is a proper charge against such defendant, or the lot or parcel of land in question, render judgment for the amount properly chargeable against such defendant, or on such lot of land.” ...

Notwithstanding the invalidity of the assessment as made, the petition showed that expense had been incurred, which was a proper charge against the defendants and the abutting property. The petition, therefore, was sufficient to authorize an inquiry as to the amount thus chargeable.

Whether the work done by the owners of lots north of Schiller street was attributable to any irregularity on the part of the council, or of any officer of the corporation, does not appear from the record.

Rut if such should be found to be the fact, the irregularity could not have the effect of increasing the burden of the other lot owners, beyond what it would have been if the entire work had been performed under the contract, and the cost thereof legally assessed.

The judgments against the plaintiffs in error are reversed, and the cause is remanded to the court of common pleas, to ascertain and determine the several amounts properly chargeable against them, under section 550 of the code, above referred to, and for such further proceedings against the city, or otherwise, as may be authorized by law.


author: Boynton, <1.

text:
    Walsh v. City of Columbus.
    1. Section 562 of the municipal code, which required the corporation to advertise for bids for the work and materials for a public improvement provided for by chapters 48, 49 and. 50, where the cost of tlic improvement exceeded $500, had no application to an improvement of a public, park belonging to the corporation.

      2. G. conveyed to the city of Columbus a parcel of land, within the city, in trust fora public park, for the free and common use of all the inhabitants of the city, to be known as “ Goodale Park.” One of the trusts imposed was, that the oversight, improvement and care of the park should be intrusted to a committee of three, to be appointed by the council from their own number. The council accepted said conveyance and appointed said committee, who entered into a contract with the plaintiff to supply materials therefor, and fill a depression in said park. Held, that such contract is binding on the city.
    Error to the District Court of Eranklin County.

      The plaintiff brought an action against the defendant, the-city of Columbus, to recover the sum of $809.85 and interest thereon, for the deposit of 5,399 loads of clay in Goodale Park, in said city, at the price of fifteen cents a load, as per contract made with the duly constituted agents of the city.
    The city denied the making of the contract, but averred,, that at the time the same was alleged to have been made,. “ there was a duly authorized committee of the defendant on the public parks of the city, of which John Walsh, a brother of the plaintiff, was chairman; that said committee neglected to advertise for bids for the performance of said labor, although the cost of said imjn’ovement exceeded $500, but that said John Walsh fraudulently and illegally entered into a verbal contract with the plaintiff, by which the latter was to supply and haul said clay at fifteen cents a load, a rate much higher than others were willing to perform the work and supply the-material for.”
    The reply denied the making of the contract by John-Walsh alone, on the part of the city, but alleged that it was-made by said committee in good faith, stipulating to pay but a fair price for said labor and materials, and not higher than the price for which others were willing to supply the same.
    On the trial, the plaintiff gave in evidence a deed of Lincoln Goodale to the city of Columbus, of a tract of forty acres of land, being the ground converted into said park, dated November 15, 1851, by which said Goodale conveyed said land to said city in fee simple upon the following trusts :
    “I. The said city of Columbus shall, within a reasonable time, lay out a public street, sixty feet wide, on the east side of said tract, to be called East Park street, and another street on the south side of said tract, sixty feet wide, to be called Bond street, as shown by said plat hereinbefore referred to.
    “ II. The said tract hereby conveyed, excepting said streets, shall be-denominated ‘ Goodale Park,’ and shall be forever kept and preserved as a. public park or pleasure ground, for the free and common use of the inhabitants of said city of Columbus, but to be under the care and (subject to said use) the exclusive direction and control of said city and their successors. '
    “III. The oversight, improvement and care of said grounds shall always be intrusted by the city council of said city to a committee of three, of their own number, excepting that during the life-time of said Lincoln Goodale, said committee shall consist of four persons, of whom said Goodale shall be one.
    “IV. The said city shall, as far as practicable, protect the birds upon said grounds, and prevent all shooting at a mark or at any game upon the-same.
    “ Y. The said city shall cause a good fence to be built about said grounds, exclusive of said streets, within one year from the date of this conveyance.
    “ YI. The said Lincoln Goodale shall have the right to designate hereafter such entrances to said grounds, from the different streets adjoining, or that may adjoin it, as he may think proper, in addition to such as may be designated by the said city. The said city shall not permit any living trees, on said grounds to be cut down or destroyed, except by the direction of said committee above mentioned, nor by the direction of said committee, except with a view to the improvement and ornament of said grounds. And in the event that the premises hereby conveyed shall be appropriated-by the said city council, or by their successors, to any other object or purpose than keeping the same as a public park or pleasure ground for the free and common use of the inhabitants of said city of Columbus, then this deed of conveyance shall become null and void, and said premises-shall revert to the heirs of said Lincoln Goodale, or to such devisees as he-may designate by his last will and testament. ”
    Testimony was offered showing that the contract was made-with the plaintiff, by the committee appointed by the council, composed of three of their number, and not by John Waish alone; and chat the compensation agreed to be paid for the-labor and material for filling up the park, was no more than the same were reasonably worth. It further appeared that, the committee did not advertise for bids for doing the work or supplying the material for filling.
    At the close of the testimony the city moved the court to-arrest the evidence from the jury, which motion the court' overruled, and the city excepted. The jury returned a verdict, for the plaintiff for the amount of his claim, which, on motion therefor, the court refused to set aside, and the city excepted.
    The city also excepted to the judgment rendered on the-verdict.
    On error to the district court, the judgment of the common pleas was reversed on the ground, as stated in the record, “ that, the contract between said Walsh and said city was void.”' The object of the prosecution of the present proceeding in error is to reverse the judgment of the district court, and to affirm the judgment of the common pleas.

      Lormso JEngUsh,' for plaintiff in error.

      Alex. W. Kruomn, city solicitor, for defendant in error.
   Boynton, <1.

The judgment of the district court, reversing the judgment of the court of common pleas, can only be justified on the ground that the improvement of a public park, within a municipal corporation, is provided for by some provision of chapter 48, 49, or 50, of the municipal code. It is claimed by the defendant that authority to make the improvement is thus derived, and consequently, that inasmuch as the cost of the improvement exceeded $500, the contract was void for failure to advertise for bids for the work and materials, as required by section 502. Our investigation has led us to the conclusion that this section has no application to the case. The laying out of public grounds, or parks, and their improvement, are provided for in chapter 27 ; •and as respects grounds purchased without limitation or •condition as to their use, or appropriated in pursuance of section 507, the provisions of that chapter, and those of chapter 20, referred to in section 399, confer the power to lay out ■ and improve such grounds, and prescribe the mode in which ■such power is to be exercised. Whenever the council shall determine, by resolution, to lay out and improve any public grounds or park, it is made the duty of the mayor to appoint, with the consent of the council, three resident freehold electors of the corporation as commissioners for that purpose, who are constituted pai’k commissioners, and invested with power to appoint a superintendent and all other necessary employés, and to prescribe their duties and fix their compensate i, ?.ubT ject to the approval of the council; and in addition the.oro, they are clothed generally with the same powers, and charged with the same duties, so far as the same are applicable, as are vested in and required to be performed by the trustees of ■cemeteries, by chapter twenty-six. § 399. Section 366 of chapter 26, confers on the trustees of cemeteries the entire management and control of all public graveyards, and burial grounds located in or belonging to the corporation, subject to its ordinances; and whenever they deem it necessary, they are required to lay out the same into lots, avenues, walks, paths, and other subdivisions. Section 367 empowers them to direct all improvements and embellishments of the grounds and lots, and to appoint, subject to the approval of the council, all necessary superintendents, employés and agents, and determine their terms of service, and the amount of their compensation. By these provisions the power to direct all improvements of a public park is vested in the park commissioners as fully as the power to improve public burial grounds of the corporation are • invested in the trustees of cemeteries, and it is nowhere made the duty of either class of public officers to advertise for, or receive bids for the work or materials that go into the improvement. That the legislature did not intend expenditures for the improvement of public grounds and parks to fall within the operation of section 562, becomes quite apparent when the foregoing provisions are considered in connection with section 501, as amended April 18, 1870. The original section provided that no improvement of any street, lane, alley, avenue, park, public grounds, market-houses or spaces, etc., of the corporation, should be ordered or directed by the council, except on the report and recommendation of the board of improvements. By the section, as amended, the words “ park,” and “ public grounds ” were-omitted, and thus the conflict between the section so amended and the provisions prescribing the duties of park commissioners, was removed, and the improvement and control of public parks left exclusively to the park commissioners, subject to such regulations as the council was authorized to make. Being, therefore, of the opinion that the power to improve public parks is unaffected by section 562, it remains to inquire whether the city is bound by the contract that the committee made with the plaintiff. That the committee making the contract on the part, of the city were not park commissioners cannot be doubted.

Sucli commissioners can only be appointed by the mayor with the consent of the council. That the mayor did not make the appointment is clearly established. But the committee was appointed by the council in fulfillment of the obligation created by, and implied in, the acceptance of the Goodale deed, by which the ground for the park was conveyed to the city. One of the duties imposed by the deed, and which the city, by its acceptance, undertook to perform, was to intrust the oversight, improvement and care of the park to a committee of three, appointed by the council from their own number.

It was in performance of this duty, that the committee was •appointed by the council, and in contracting with the plaintiff to fill up the depression in the park, the committee only employed the usual means to effect one of the objects for which it was created, and which the city hound itself to see accomplished 'by accepting the conveyance from Goodale, with the conditions it imposed. Hence, the contract .of the committee with the plaintiff was the contract of the city, as much so as a contract made for a similar purpose by park commissioners, for the improvement of a park, the ground for which was ocmt•demned under the statute, or acquired by purchase.

Judgment of district court reversed,> a/nd that of the common pleas affi/rmed.


text:
    Cook v. Andrews and Hitchcock.
    O. agreed to sell and lease to A. & H. all the coal underlying a certain tract of land, and granted to them the possession of the premises, and the exclusive right to test said land for coal, and to open, mine, and remove the same, if discovered in sufficient quantity and quality, the coal mined to bo paid for quarterly per ton. They were to test the land, by drilling or otherwise, within a time stated. Upon failure to commence mining within a period stipulated, they were to pay an agreed sum annually, which was to be treated as an advance on coal thereafter mined. In an action by 0. to recover from A. & H, the annual sums agreed to be paid upon failure to mine within the stipulated time:

      Held, 1. That if, in such an action, it appears that minable coal did not exist on said land, there can be no recovery.
    '2. That, in order to defeat a recovery in such an action, the burden is upon A. & I-L, to allege and prove the non-existence of minable coal on said land.
    Error to tlie District Court of Mahoning County.
    The common pleas rendered judgment for the plaintiff below, who is plaintiff here; the district court reversed that judgment, and this court is now asked to reverse the district court.
    The action was brought to recover the annual sum of $150 per year, for a series of years, by reason of failure to commence mining coal under a contract, of which the following is a •copy.
    “Coal Contract.
    “Deacon Cook to Andrews & Hitchcock.
    “ This article of agreement, made and entered into this 12th ■day of January, a. d. 1864, by and between Deacon Cook, of Green Township, Mahoning county, Ohio, party of the first part, and Chauncey H. Andrews and W. J. Hitchcock, of Youngstown, Mahoning county, Ohio,
    “Witnesseth:
    “That the said party of the first part agrees to sell and lease all the mineral stone coal that is or may underlie the following described tract Or lot of land, situated in the Tow.n-•ship of Green, Mahoning county, Ohio, and is bounded as follows: On the north by land of Andrew Cochel, east by land •of F. M. Frederick, on the south by the highway, on the west by land of M. Pettit and Pearson D. Cook, and containing in the whole about one hundred and sixty acres of land. It is .agreed by the parties, that first party may have all of the coal he may want for his own domestic purposes, at the bank mined from his own land; free of charge, and the further sum of fifty tons per annum, by his paying the first cost of the same at the bank should he want it. And the second party agrees to pay the United States revenue tax on said coal, and also grants the exclusive right to test, open mines and remove said coal, and further, grants the right to construct railroads, underground entries, and all necessary buildings and fixtures to facilitate the mining and removing of said coal. No coal to-be mined under the house or barn, or an area of five acres thereabouts.
    “ Second party have the right to abandon said premises at any time, and remove all houses and fixtures.
    “And-it is agreed by the party of the second part, that they will, within one year after the railroad is in running order from Niles to ’Wasliingtonville, test said land, by drilling or otherwise, and, if in case there should be discovered’ a minable vein or basin of stone coal of sufficient quantity and quality to justify the opening and mining of said coal, in the opinion of the said second party, then they agree to pay the following rate per ton for all coal mined on said premises, to wit: Pay fifteen cents for each ton of twenty-two hundred and forty pounds of merchantable coal, the payments to be made and continued in the following manner, to wit: Pay in hand one dollar, in an internal revenue deed stamp; the signing and sealing of this contract is an acknowledged receipt thereof.
    “ Should second party fail to commence mining within one year after the construction of said railroad, then they agree to pay first party one hundred and fifty dollars per annum thereafter, but such payments, when made, shall be treated as advance payments on coal to be subsequently mined, and this lease shall terminate in twenty years after the construction of said railroad. It is also agreed that' all coal mined on said premises is to be accurately weighed, and the weight .to be kept in a book which shall, at all reasonable times, be open for the inspection of the said first party. It is further agreed that the said party of the second part is to have the privilege of using the said railroad, underground entries, buildings and fixtures for the purpose of mining and removing coal from other lands, and after the said mines become exhausted or unminable, they may continue the use of said railroad, underground entries, buildings and fixtures, by paying the party of the first part the sum of twenty-five dollars for each year they may use them for the purpose of transporting coal. All moneys due under the contract to be paid or made in bankable funds of the State of Ohio, and the payments for coal so ■jnined to be made quarterly. And we, the parties to the signing and sealing of this contract, bind oursel ves, our heirs, our assigns and legal representatives, to strictly adhere to the several covenants and agreements of this lease, as witness our hands and seals the day and year above written.
    “ Deacon Cook.

      “ 0. IT. Andrews.
    “ W. J. Hitchcock.”
    The amended petition (filed in pursuance of an order consolidating several causes of action to recover for annual rent for successive years), after specially alleging the obligations incurred by defendants, avers that said railroad was completed August 1, 1869 ; that defendants have entered into possession of said premises under this contract, retained and still hold, and refuse to surrender the same to plaintiff; also that they have failed and refused to test said land for coal by drilling or otherwise, and have failed to commence mining coal on said lands within the time named in said contract.
    The answer puts in issue the time when the railroad was completed, denies that 'defendants failed to test for coal, or that they are liable, unless there was coal in this land. They aver they did make a search for coal, and found none, and that there was in fact none on the land, suitable for mining. Wherefore it is claimed there is nothing due on said lease.
    They also set up a surrender of the lease by mutual agreement.
    The reply denies the search for coal, denies that coal did not exist on the land, and denies the surrender of the lease.
    Upon the issues thus made, the case was tried to a jury, resulting in a verdict and judgment for the plaintiff for part of the amount claimed. A motion for a new trial was made and overruled, a bill of exceptions was taken, but it was not made part of the record, by journal entry.

      The district court reversed the court of common pleas, and remanded the cause. And this court is asked to reverse the judgment of the district court.

      A. IF. Jones, of Jones & Murray, for plaintiff in error, relied on Powell v. Burroughs, 54 Pa. St. 329 ; Bainbridge on Mines, 212, and cases there cited.

      Thomas W. Sanderson, for defendants in error.
   Johnson, J.

The bill of exceptions, which embodies the evidence and charge of the court, with the refusal to charge as requested, and the exceptions thereto, is not properly a part of the record within the rule in Hill v. Bassett, 27 Ohio St. 597; and Burk v. P. C. & St. L. R. R., 28 Ohio St. 643.

As in the case of Smith v. Board of Education, 27 Ohio St. 44, the bill of exceptions, not having been made part of the record, must be disregarded, upon error to this court.

The only question that is presented by this record is, as to the sufficiency of the petition to support a cause of action.

In' the absence of a bill of exceptions, we must presume that all the allegations of the petition were supported by proof of' the facts alleged. If those facts do not warrant a recovery, the judgment must be reversed.

There is no averment in the petition that there was a min-able vein of coal on this land. If this averment is necessary to a statement of a cause of action under this contract, then the defect is not cured by verdict. C. & P. R. R. Co. v. Stackhouse, 10 Ohio St. 567.

"Was the plaintiff required to aver and prove that minable coal existed on this land \

If so, the judgment must be reversed.

It is true there was no demurrer to this petition, for want of such an averment, but if it is an essential averment, there can be no recovery without it, as no cause of action was stated. It does not belong to that class of cases where there is a defective statement of the facts constituting a cause of action, which may be cured by verdict, but to that class where there is a failure to state a fact essential to a cause of ■action.

If there was no minable coal on this land, there could be no recovery for the annual rent, and of course, none for coal mined. The contract, in that event, would be of no value to either party.

It is manifest from a cursory reading of this instrument, that whether coal existed on this land, was unknown to the parties.

If it did, in fact, exist, its discovery would enhance the value of plaintiff’s land. The expense of making the necessary test, would doubtless be considerable. It was an inducement to a sale of the coal on the terms specified, that this test should be made at the expense of the lessees.

Hence, the lessor granted to the lessees the exclusive right to make this test, as well as to mine the coal, if discovered, and bound them to make it within a given time free of cost to him.

He reserved no right to make the test, even if willing to incur the expense.

Unless the lease was abandoned, or in some other way terminated, the exclusive right to the possession of the premises, for the purpose of searching for coal as well as for mining purposes, was vested in the lessees, and it was within their power to prevent any such test by the lessor as would be necessary for him to make, in order to enable him to aver and prove the existence of minable coal, if this burden is upon him.

In short, the lessees could retain this valuable privilege for twenty years, and obstruct the lessor from making the search for coal, without any payment, unless, at the termination of the lessees’ exclusive right to make the test, the lessor should at his own expense, make the necessary search, to enable him to aver and prove the existence of minable coal.

It is said the failure to make the test within the time, subjected the lessees to an action for damages for breach of this stipulation. Admit this, but if the burden of proving that there is minable coal on the land is essential to a recovery in the case at bar, it is equally so in such an action, and hence the plaintiff would be required to do that which the lessees-have reserved the exclusive right to do, i. e., test the land. Such a construction of this lease would be grossly inequitable, and would practically defeat any action, except to recover for' coal actually mined, or for rent per annum where the lessees had made the test and found coal, but failed thereafter to minetbe same. _ .

Again, it is expressly provided that should the lessees fail to-commence mining within one year from the construction of tiie railroad, then they agree to pay $150 per annum thereafter, but such payments when made shall be treated as advance payments on coal to be subsequently mined.

This clause, in connection with the one granting the exclusive right to test for coal and to mine the same, if found, casts upon the lessees the burden, where no test has been made, of showing, in order to escape payment of this annual sum, that there was, in fact, no coal on the land.

The lessees reserved the right to abandon the premises at any time. From the judgment in lessor’s favor upon the issues, it appears they did not’surrender or abandon, but retained possession. They did nothing to develop the coal, if any was there. As they had the exclusive right to make the test, no one else could. They alone possessed the power ’to ascertain by a satisfactory method this important fact. It seems to us,, therefore, that while the ' exclusive right to test this land is retained by the lessees, the burden is upon them, in order to-defeat a recovery, to aver and prove the non-existence of coal in minable quantity and quality.

Much stress is laid upon the clause which provides that these annual payments “shall be treated as advance payments on coal to be subsequently mined,” and it is insisted that they are to be treated as advance payments on coal, and hence, if there is no coal, there can be no recovery.

We have already stated, that if, in fact, there was no minable coal, there could 'be no recovery, and this is all that this argument proves.

The fact that if coal is thereafter mined, these annual payments shall be treated as advances upon coal thereafter mined, ■does not settle the question of pleading now before lis, as to whose duty it is to aver and prove the existence or nonexistence of coal.

Again, suppose the fact was established by the tests made by the lessees, that coal did exist in minable quantities, but the lessees refused to mine the same, the annual rent would nevertheless be payable, and could not be recovered back as .advance payments on coal not mined. In such a case, it would be at the option of the lessees to lose these payments made, by not mining thereafter, or by mining to have credit on the coal thereafter mined.

This contract is anomalous, and evinces great skill in guarding the interests of the lessees, but we think there is a clear ■duty imposed on them, when called on for payment of the annual rent stipulated to be paid on failure to mine coal; to ■show, either by an actual test, or by other competent evidence, that in fact there was no coal on the premises, in order to defeat a recovery.

This conclusion is in accordance with the familiar principle, that when, by law. or contract, a duty is imposed upon a party, the burden of relieving himself of that duty rests upon him.

Judgment of the district court reversed and that of common pleas affirmed.

Boynton, J., dissented from the judgment.


text:
    Kershaw v. Snowden.
    1. A plaintiff sued an administrator for money placed in the hands of his intestate, which it was averred was so received upon the “ express trust,” to be repaid to the plaintiff on the death of the intestate. Reid, that the transaction did not constitute an equitable trust, but merely-created the relation of debtor and creditor- between the intestate and the plaintiff.
    -2. In such case, the cause of action did not accrue until the death of the intestate.
    •3. Where a case has been treated by the parties and the courts below, as an equitable action, and as appealable, and the case has been tried by the district court on its merits, without objection, this court will not, sua sponte, consider the question of error in entertaining the appeal.
    Error to tlie District Court of Jefferson County.
    The action was brought by the defendant in error, against' the plaintiff in error, in the court of common pleas of Jefferson county. The petition sets forth six causes of action, briefly stated as follows:
    “ 1st. That the defendant (in that court) had been duly appointed and qualified as administrator on the estate of Ann Kershaw, deceased; that the said Ann Kershaw, in her lifetime, received large sums of money of the said Richard Snow-den, to-wit: $2,012, as an express trust for him, and has ever since, up to the time of her death, retained said sum of money as trustee of the express trust, viz.: to retain the same in trust for the said Richard Snowden until her death, and. then to execute the said express trust by the return of the said sum to said Richard Snowden. That Ann Kershaw died without returning the sum aforesaid, but that said fund became mingled with her estate, and is now in 'the hands of said Nicholas Kershaw, as administrator on her estate; and praying that said .Nicholas Kershaw, as said administrator, be ordered, adjudged and decreed to pay to said Richard Snowden out off the estate of said Ann Kershaw, deceased, the amount off money which in the premises he is equitably entitled to.”
    The legal character of the other causes in action was the-same as the first.
    Kershaw filed a demurrer to the petition in the common pleas, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. He then answered, traversing each cause of action; and also-pleaded the statute of limitations of six years.
    On the trial in the common pleas, the court found in favor of the plaintiff below, Snowden, in the sum of $150, and rendered judgment accordingly.
    Both parties gave notice of appeal to the district court; and. the plaintiff perfected his appeal by giving bond.

      The action was tried in the district court, at the April term, 18Y7, and the finding was in favor of the plaintiff in the sum of $400, for which judgment was rendered.
    A motion was made by the defendant for a new trial on the ground, among others, that the finding was not supported by the evidence. The motion being overruled, a bill of exceptions was taken, embodying all the evidence.
    The present petition in error is prosecuted to revered this judgment. The errors assigned are, in substance, that the petition, does not show a cause of action ; and that the evidence does not support the finding. ■>

      MoCauslen é¡ Martín and Bobbin <& Andrews, for plaintiff in error.

      O. P. Mossgrove, for defendant in error.
   White, J.

The original petition in this case is framed upon the theory, that the plaintiff’s cause of action is of an equitable nature, and that the relief to which he is entitled is the enforcement of an express trust. This view is founded upon a misconception of the nature of the cause of action, and of the rights of the parties. There is no equitable trust involved in the case. The real ground of the action is, that the plaintiff placed certain money in the hands of the intestate of the defendant below, which was to be repaid to him on her death. This created the relation of debtor and creditor between the plaintiff and the intestate; and as such creditor his rights against her administrator stand upon no higher footing than those of her other creditors. The plaintiff can assert no right to any specific part of the assets; and if the estate should prove insolvent, he could be paid otAj pro rata with the other creditors.

The plea of the statute of limitations of six years, interposed by the defendant below, cannot avail. The cause of action did not accrue until the death of his intestate, which occurred in .July, 18T3, and the action was commenced in January, 1876.

The case has been treated by the parties and .the courts below as an equitable action, and as appealable. Both parties gave notice of appeal. The plaintiff below gave bond to perfect the appeal; on the part of the administrator no bond was required for that purpose. The case was tried by the district court on its merits without objection; and there was a finding and judgment for the plaintiff. The principal error assigned in this court, is that the finding is not supported by sufficient evidence. Under these circumstances, we do not feel called upon, sua sjponte, to consider the question of error in entertaining the appeal.

An examination of the evidence satisfies us that the finding of the court is excessive. There was no promise on the part of the intestate, to pay interest on the money placed in her hands by the plaintiff; nor are the circumstances such as to warrant the charging of interest.

The finding in our opinion is excessive to the extent of $200, and unless the defendant in error, the plaintiff below, enters a remittitur of that amount the judgment will be reversed, the finding set aside, and the cause remanded for further proceedings.

If such remittitur be entered, the judgment will be affirmed as to the residue.


author: Boynton, J.

text:
    Melvin v. Weiant.
    Words spoken of a man imputing to him an act of sodomy, are not actionable without an allegation of special damage. Davis v. Brown, 27 Ohio St. 326, followed.
    Error to the District Court of Marion County.

      H. T. Van Fleet, for plaintiff in error.

      Scofield & Johnston, for defendant in error.
   Boynton, J.

The original action was one of slander, the petition in which charged the defendant with maliciously speaking of and concerning the plaintiff, in the presence of others, words imputing to him an act of sodomy. A demurrer to the petition was sustained, and judgment given for the defendant. On error to the district court, the judgment ■of the court of common pleas was affirmed. The object of the present proceeding in error is to reverse both judgments. We fully agree with counsel for the plaintiff, that the words spoken ■of his client were of the grossest and most scandalous character. It would be difficult to put into words, a charge, which, if believed, would more certainly exclude from society the one .against whom the same was made, or more surely expose him to public odium and disgrace. Formerly, in England, the offense was deemed of a nature so heinous, that the delicacy of the common law would not permit it to be named in its indictments. 4 Blackstone Comm. 215.

But, notwithstanding this, the act itself has never been dedared a crime in Ohio. Nor has it ever been enacted that an imputation that a person is guilty of such act, however untrue and malicious, shall lay the foundation for an action of slander. It may be, and quite likely is, true, that this want of statutory regulation upon the subject, has resulted, in the one case, from a reluctance to believe that a human béing could be found .sufficiently depraved to perpetrate so foul an act; and, in the other, so reckless of another’s rights as to charge the existence of such act, without the most undoubted proof of its truth.

However this may be, the fact remains that no statutory regulation upon 'the subject exists, and from this it follows that the words set out in the petition are not in themselves .actionable, and consequently, unaided as they are by matter .showing special damage, lay no foundation for recovery, unless, because of the character of the act imputed by them, they are held to constitute an exception to the general rule. See Hollingsworth v. Shaw, 19 Ohio St. 430. This precise question was before the commission in Davis v. Brown, 27 Ohio St. 326, where it was held that no such' exception prevailed.

To this .ruling we are inclined to adhere. Some members of the court, in view o£ the heinous character of the charge, and of its direct and certain tendency to degrade and exclude ■from decent society the person against whom the same is made, would have inclined to regard the injury as one which the law, now existing, is adequate to redress, while the remaining members are of the opinion that Davis v. Brown was correctly decided.

We are all agreed, however, that that case ought not to be-overruled. If injustice may result, as doubtless it may, from adhering to the rule there asserted, the remedy is with the legislature.

It would be an easy matter to make sodomy a crime, or to-give the party wrongfully charged with committing it, a right, of action against his accuser.

Judgment affirmed..


author: McIlvaine, C. J.

text:
    Nolte v. Hill.
    H. employed N. to underpin his house, to protect it against injury front the excavation oí a cellar then being dug on an adjacent lot by the-owner thereof ; but before N. commenced work under his contract, the house was injured by the excavation.

      Held, 1. That a local custom was unreasonable and void, under which it would be the duty of N. to enter into a contract or arrangement with, the owner of the adjacent lot for the joint prosecution of the work of underpinning and the digging of the cellar, whereby the failure of N. to make such arrangement would constitute a breach of his contract.
    3. Whether N. was at fault in not commencing work under the contract to underpin before injury resulted to the house from excavation of the-cellar, must be determined by the contract between the parties, construed in the light of the circumstances of the case.
    Error to the District Court of Hamilton County.
    The originial action was brought by Alfred Hill against J.. B. II. Nolte, in .the court of common pleas of Hamilton-county, to recover damages for the breach of a contract. Hill was the lessee of a lot in the city of Cincinnati, bounded on the east by a lot owned by one Christopher. Nolte, father of defendant. On the lot of Hill, a three story brick house had been erected, abutting on the line of Nolte’s lot. The cellar and foundation wall (of stone) under Hill’s house were about five and one-half feet below the level of the curb. During the summer of 1875, Christopher Nolte was engaged in the erection of a building on his lot, extending to the west line of the' lot, and touching upon the brick house of Hill, with a cellar and foundation wall extending eight feet below the curb, or two and a half feet below the foundation wall of Hill’s house. The, damages sought to be recovered by Hill in the original action was for injury to his house, resulting from the excavation for the cellar on Nolte’s lot, whereby the walls of his house were broken down.
    It was alleged in the petition, that “ on or about July 2,. 1875, defendant, who was then engaged in excavating a cellar, and laying the foundation and cellar walls on the lot of land next to, and immediately adjoining plaintiff’s said building on the east, entered into a contract with plaintiff, and there and then agreed to underpin the foundation walls of plaintiff’s said building, so as to prevent the said building from falling or being otherwise weakened or injured, by reason of the excavation of said cellar as aforesaid.
    “Defendant wholly failed to perform said contract and underpin said building; but, on the contrary, did negligently and carelessly contrive to excavate said cellar without underpinning said building, and securing the same, as he had agreed, to do; by reason of the negligence and carelessness of defendant in failing to underpin and secure said building according-to the terms of said contract, and by reason of the negligence and carelessness of defendant in excavating said'cellar before underpinning and securing said building, the foundation wall of said building gave way, and said building was injured and damaged in the sum of thirty-five hundred ($3,500) dollars.”
    To this petition the defendant filed an answer denying generally the allegations of the petition.
    Afterward an amendment to the petition was filed, of which the following is the material part:
    “Plaintiff says, by way of amendment to his original petition, that ho is the lessee of said promises under a certain, lease dated March 14, 1872, for a term of five years from March 14, 1872.

      “ Said lease contains a privilege of purchase of said premises at any time during said term. Said building was erected by plaintiff on said premises since he leased the same as aforesaid, and while he held the same as said lessee.”
    The trial resulted in a verdict for $2,160.00, for the plaintiff. A motion for a new trial was overruled. A bill of exceptions, containing all the testimony and charge, Avas taken, and judgment rendered for the plaintiff. This judgment was affirmed by the district court.. The principal grounds of error are alleged: namely, in admitting incompetent evidence, in the charge to the jury, and in overruling motion for a ne\v trial.
    A further statement of the case will be found in the opinion.

      Mg Guffey, Morrill & Strunk and Ilagans & Broadwdl, for plaintiff in error.

      Thomas McDougall, for defendant in error.
   McIlvaine, C. J.

, It appears from the testimony, that after It was known to-the parties that Christopher Nolte intended to build upon the lot adjoining the plaintiff’s lot, and that the ■excavation for the cellar thereon would endanger plaintiff’s building, a verbal contract was entered into by and between them. The only evidence concerning the terms of the contract, is found in the testimony of the parties themselves. The substance of plaintiff’s testimony as to the contract was as follows :

“ I am the plaintiff; I hold the premises in question by a lease. T erected the building about four years ago; I verbally ■contracted Avith J. B. H. Nolte to underpin the house; I knew Christopher Nolte was about to build on the adjoining lot, as I had made an estimate and bid on the plans for building said house, the plans being in the possession of the defendant at the time, and I saw the men digging on the lot. Defendant told me at the time the estimate Avas made that he was going to put up the building for his father, Christopher Nolte ; I told him I Avanted him to underpin my house, as he could do it better and cheaper, having his men there; he-agreed to do it; ‘ he said he would attend to it.’ ”

The substance of defendant’s testimony on the same point was as follows:

“ I think diggers were at work the first time when Iiill spoke to me of underpinning ; Miles spoke to me and said his-father wanted to see me about underpinning, I told him I would see him. I met him on the street, he said he wanted me to underpin; I said all right, whenever it is ready let me know, and I will attend to it; this I think was on the corner of Clark and Central Avenue; there was nothing said about protecting the wall, or the house being in danger; he never told me to' protect the building ; I told him to let me know when it was ready, as he was near and I lived at Brighton; I had no other conversation with him about the matter until after the building fell.”

From the whole testimony, it is quite clear that the excavation which caused the plaintiff damage, was done by one Shroeder, under- a contract with Nolle, senior, and that defendant had no interest in said contract, or right to control the performance of the work under it.

In this view of the case, it is contended by plaintiff in error, that the variance between the contract set up in the petition and the one proved on the trial, was fatal to the plaintiff’s right to recover. We think otherwise. If the plaintiff had a cause of action for a breach of the contract proved, it would be no objection to his right to recover, that all the terms of the contract as alleged in the petition, were not sustained by the testimony. This is a mere question of variance.

It also clearly appears from the testimony, that the work of excavating the cellar on Nolte’s lot was progressing at the time the contract between these parties was made. That it was continued until the depth of plaintiff’s foundation had been reached, when the work was suspended for a couple of weeks. In the afternoon of the same day on which the work was resumed, defendant Nolte was on the ground, and seeing that the excavation was below the plaintiff’s foundation, told the diggers that they were too close to the wall of the plaintiff, and then proposed to commence underpinning the next morniqg. This was about 3 o’clock p. m., and about • an hour thereafter the plaintiff’s wall fell in, before the work •of underpinning had been commenced. ■

Conceding, upon this state of facts, that a case was made for the jury to say whether or not the defendant below had failed 'to perform his duty under the contract, it is contended that the judgment and verdict should be set aside for error in this, namely, that the court, against the objection of the defendant, permitted the plaintiff to offer testimony as follows: "

The plaintiff, Hill, having testified in regard to the contract to underpin, was asked by his counsel “ whether or not there was any ‘ general custom ’ when one agreed to underpin a building, as to how it should be done, and as to what his duties were, and if so, what it was. ” The witness answered ■“there is a ‘general custom ’ for the diggers and underpinners to work together when 'the underpinning is made necessary by •excavating the.adjacent lot.”

One Archer, being then called by plaintiff, was asked the following question: “ Under a contract to underpin, what is ■embraced? what is the ‘general custom’ if any, as to the way of doing it ? ”

The witness answered, “ Under the contract to underpin is •embraced to dig off a certain distance from the wall, then dig under, at places, so as to let the mason work, or to take all the earth away and put in timbers to support the stone. When ■one contracts to tinderpin, I leme the matter to him ; this is the general acceptance of such a contract, and includes his following the digging of the adjacent lot, and the contract is made with such an understanding. That is the custom^ Ex•ceptions to both question and answer were taken and overruled.

Again, the following question was asked McKay, a witness for plaintiff:

Ques. — If excavations -were going on upon an adjoining lot, and owner make a contract to underpin, what is fhe ‘general custom,’ if any, as to what he, the under■pinner, shall do % ” to which exceptions were' taken and ■overruled.

“ Ans. — If I, in such case, made a contract to underpin with one, he would have the entire control, and I would trust the building to him.”

And for error in the charge of the court in relation to such testimony. The following is the charge given upon this subject.

“ It is claimed, however, by the plaintiff, that the contract entered into by him with the defendant, obligated the defen d--ant to do whatever Was necessary, as the excavation of the .adjoining cellar progressed, to underpin, and so secure the wall ■of his house ; that that was the contract between him and the ■defendant; and as bearing on this question, there has been evidence introduced before you of house-builders, as to what is the custom, and what is understood when a contract for underpinning a house is made.

“ Now, so far, gentlemen, as you find from the testimony that the general custom — I mean the custom in this business, a ■custom by which persons engaged in this kind of business are controlled habitually — so far as you find a custom to have been used, if there be any indefiniteness in the precise language used by the parties in making their contract; if the details of the contract are not clearly and specifically all provided for in the language of the contract itself, they will be held to have entered into the contract with a view to the custom that existed in that kind of business, and the contract will be interpreted and con.strued by the custom as you find it to have existed at the time. In other words, that they meant to do, on the one hand, and to have done on the other, what it was customary should have been done.

“Proof of the custom must be clear. It must be shown to be uniform, and generally understood by the parties who ■should be affected, usually, by such custom.

“ It is claimed by the plaintiff that the evidence shows that where a contract is entered into between a stone mason and the owner of improved property, whose foundation is about to he injured by an excavation immediately adjoining his property, for the underpinning, by the stone mason, of his wall, to-prevent its receiving injury, or falling, whether he himself has contracted for the digging of the cellar adjoining or not, that, nevertheless, he will make an arrangement with the digger of the cellar, by which they will work together, so as that the underpinner, as the excavation progresses, will he able to put in new foundations to the house without injuring the house, and thus secure it from falling..

“ It is claimed that all the testimony, offered before you in reference to that matter shows that such is the uniform and universal custom with reference to this matter; and if you find from the proof that such is the custom, then the defendant, in case you find the contract to have been made as claimed by the plaintiff, would be held obligated by such a custom, and should be held to the duty of making such an arrangement with the digger of the cellar on the adjoining premises, and co-operating with him as the digging progressed,'so as that he should be able to underpin the wall of the plaintiff, and save it from falling.

“Obviously, gentlemen, it is for the mutual advantage of the party employed to underpin the wall of the adjoining house, and of him who is engaged in digging the cellar for the new house, that the walls should be kept from falling ; that they should work together, one following the other in his work ; for it would be to the advantage of the cellar to prevent the wall from falling into the excavation he is making, and thus impeding his operations; and it would be a reasonable custom, such a custom between the cellar-digger and the underpinner; and if you find in fact that such a custom existed, then it was the duty of the defendant to avail himself of that, and make ■ such an arrangement with the cellar-digger ; and if you find, by the terms of the contract between the plaintiff and the defendant, that there was simply an agreement on the one part by the defendant to underpin the wall of the plaintiff, and to attend to it, and the obligation imposed by the law upon the plaintiff that he should pay his reasonable charges , for doing so, then it would be the duty of the defendant, who undertook to underpin the wall, to watch his opportunity and make provision for tbe fulfillment of his contract, by an arrangement for such purpose with the digger of tbe excavation, by which they should work together, each performing his own functions, and each giving to the other opportunity to attend to his.

“ It is claimed by the plaintiff that the defendant, so far from having taken any steps to make such an arrangement with the digger of this cellar, by which they should co-operate together, neglected utterly, up to the time of the accident itself, to speak to him on the subject, or to make any arrangements whatever with him.

“If you find, gentlemen, that to be the fact, that-in consequence of this neglect the injury has accrued to the plaintiff, you will be warranted in finding a verdict for the plaintiff, if you find the contract to have been made.”

The case before the court presents no question as to the manner in which a contract *bf this kind should be performed. It was not performed at all. Its performance was not commenced by defendant. The" question is, was he negligent in not entering upon its performance, or, in other words, did he neglect any duty to which ho was obligated by the terms of his contract? Had the time arrived for the commencement of the w-ork, aud did he know it? Was he notified by the plaintiff below, or had he such knowledge from his own observation ? And if so, was he guilty of unreasonable delay in commencing work under the contract ? Or was he bound to take notice of the proper time to commence the work ? Was he bound to observe the progress of the work which necessarily preceded liis own ? These questions must be determined by the contract itself, and from the facts and circumstances which surrounded the parties at the time it was made, and which were known to them. If the defendant had control of the preparatory work, it would be reasonable to say that the parties meant thát he should take notice of its progress; otherwise he could not, under such a contract, be considered in default until knowledge, in some way, came to him that the previous work of excavating the cellar had progressed to such a state, that the time had come for him to enter upon the work of underpinning. All these questions should be determined according to the principles of the common law, and not by any general usage of others, much less by any local or particular custom. It appears to us, that the solution of such questions cannot be made to depend upon usage or custom, but, in each case, must be ascertained from the terms of the contract itself construed in the light of its own peculiar circumstances.

But the theory upon which the case was tried in the court below, as we understand, goes still further. The local custom which was injected into this contract (which in terms bound the defendant to underpin plaintiff’s building, and nothing more), obligated him also to contract with the excavator of the cellar upon the adjacent lot, so that the excavating of the cellar and the underpinning of the plaintiff’s house should be wrought together; and the failure to make such arrangement with the excavator, whether he was willing or unwilling to enter into the arrangement, would, constitute a breach of the defendant’s contract. Such a custom, however uniform and long continued, should be declared unreasonable, and therefore of no binding force.

It is also claimed that the damages assessed by the jury were excessive. Upon this point, we need only say, that if the injury to plaintiff’s house could have been repaired so as to restore it substantially to its former state and condition, the cost of such repairs, and not the value of the house, is the proper measure of damages.

Judgment reversed and cause remanded to the court of common pleas for further proceedings.

Johnson, J., dissented from the judgment.


author: Okey, J.

text:
    Koons v. The State.
    1. The genuineness of a writing was in controversy in a cause, and an expert, called as a witness, stated, in connection with his opinion, which opinion was material upon the matters so in controversy, certain facts upon which the opinion was founded, and the court afterward excluded from the consideration of the jury such facts, but refused to' exclude the opinion. Held, that this was error. ^
    :2. On the trial of a party charged with uttering and publishing a check as ’ true and genuine, an expert was called for the state, who had seen the alleged forged check several months previously, and to whom a genuine signature of the accused was shown on such trial. Held, that, the state being unable to produce such check, the presence of such check on the trial was not indispensable to the competency of the witness to testify to the fact that the check and signature were in the same handwriting.
    -'3. Whore, on the trial of one charged with uttering a forged check, signed “ John B. Brown,” an expert in handwriting who had seen the check several months previously, but had never seen' the accused write, and was not acquainted with his handwriting, was called as a witness, and a genuine signature of the accused, “C. S. Koons,” was exhibited to him, which furnished the only knowledge he had of the handwriting of the accused, Held, that before the witness should be allowed to give his opinion to the jury as to whether the check and signature were written by the same person, it ought to appear to the court, from an examination of the witness, that the signature of the accused constituted a sufficient basis upon which the witness could form an opinion whether the check was in the handwriting of the accused.
    Error to the Court of Common Pleas of Athens County.
    At the June term, 1880, of the court of common pleas of .Athens county, the grand jury returned into court an indictment, which they had found against Cyrus S. Koons; charging him, in the first count, with having forged a check in the preceding March, and in the second count, with uttering and publishing, as true and genuine, a check, knowing the same to have been forged, the latter offense also being alleged to have been committed in the preceding March. The defendant pleaded not guilty, and, at the same term, was placed on trial. :The verdict was that Koons was not guilty as charged in the first count, but that he was guilty’as charged in the second count of the indictment. A motion for a new trial having been overruled, Koons was sentenced to the penitentiary for the term of five years.
    The forged check, as set forth in the indictment, was in these words and figures :
    “ Athens, Ohio, March 25, 1880.
    “ Bank of Athens, pay to J. B. Ellis or bearer, five hundred and forty dollars. John B. Brown.”
    On the trial several bills of exception were taken. In one of these it is stated that the state called James D. Brown as a witness, who testified that he was a. banker, skilled in the comparison and examination of handwritings; that he was then cashier and manager of the Bank of Athens ; that he was present in the bank on March 31, 1880, when Koons presented the above-mentioned check for payment; that he was familiar with the genuine signature of John B. Brown, and that, in his ojfinion, the signature on said check was not the genuine signature of John B. Brown. The check was handed back to Koons and the witness had not seen it since. The check was not produced in court. The witness further stated that he had no knowledge or acquaintance with the handwriting in the alleged forged check, and that he never saw the defendant write, nor was he familiar with his handwriting. Thereupon a promissory note in the following words and figures was shown to the witness:
    “ $43.59. June 20, 1871.
    “ One day after date I promise to pay Patterson & Curfman, or bearer, the sum of forty-three dollars and 59 cts. with' eight ' pe/ cent., for value received. O. 8. Koons.”
    The defendant admitted that the signature “ G. S. Koons ” was written by him, and the prosecuting attorney admitted that the filling up of said note was not written by said Koons. The witness said that he had never seen the said signature of said Kpons, nor any other signature of his until that day. The prosecuting attorney then said to the witness: “ Look at the signature ‘ C. -S. Koons/ in this note, and say if the liandwritlng of the check signed John B. Brown, and presented to you March 31, wTas the same as this signature.” The defendant objected to the question, the court overruled the objection, and the witness answered: “ The signature to this note, ‘ O. S. Noons,’ has a similarity to the handwriting of the check.” The defendant moved the court to rule out the answer, but the ■court refused to do so, and permitted the same to go to the jury. And the defendant excepted to the ruling of the court both in permitting the question to be answered and in refusing to rule ■out the answer. The prosecuting attorney further asked the witness : “ State whether or not, in your opinion, the signature to the note, and' handwriting and signature to the check, are in the same handwriting.” To this question the defendant objected, but the court overruled the objection and the defendant •excepted. The witness answered, “ I should think they probably were.” And the witness further said, “ My remembrance of the check, and my examination of certain other papers brought to me by Mr. Wolf since the check was presented, makes me think so.” The defendant objecting, the court ruled out the following: My remembrance of the check, and my examination of certain other papers brought to tne by Mr. Wolf since the check was presented, makes me think so.” The defendant ■objected to ruling out those words unless the whole answer of the witness should be ruled out, but the court overruled the objection and the defendant excepted.
    Further, to maintain the issue, the state called R. H. Stewart, wdio testified that he was an expert in the examination of handwriting, and was a clerk in the Bank of Athens when the .alleged forged check was presented, and examined it; that he ■did not recognize the handwriting, but was sure the signature, John B. Brown, was not genuine; that he had never seen the defendant write, nor had he seen the signature of C. S. Noons ■until then, nor had he seen the alleged forged check since March 31. And thereupon the above-mentioned note to Patterson <fc Curfman was shown to the witness, and, against the •objection of the defendant, the court permitted the witness to .state that there was a similarity between the handwriting in .■said check, and the signature “ G. S. Noons,” to_the note ; and, over like objection of the defendant, the witness was allowed testate that in his opinion the forged check and the signature “ O. S. Koons ” “ were probably in the same handwriting.”' The defendant asked the court to rule out and exclude said-testimony of Stewart, but the court refused, and permitted the same to go to the j ury, and the defendant excepted.
    In the motion for a new trial, which was overruled, the admission of the testimony of Brown and Stewart were assigned, as ground for the motion, and it was further assigned as ground for such new trial, in the same motion, and the truth of which was shown, that the sheriff of the county and his deputy had given evidence material for the state on the trial of the cause, and that during the deliberations of the jury, in the room where they were considering of their verdict, the sheriff was present a considerable portion, and the deputy the remaining-portion of the time. It appeared that the room was a hall,, sixty by eighty feet, but it does not appeal1 whether.the sheriff or his deputy heard the deliberations of the jury, nor does it appear that the jury were under any restraint in their deliberations, by reason of the presence of those witnesses.
    On motion, leave was given to file, in this court, a petition, in error to reverse the aforesaid judgment.

      Grosenor <& Jones, for plaintiff in error :
    As to the admission of evidence of experts as to the comparison of handwriting, see 1 Hawks, 6 ; 11 Mass. 313; 32 Ind. 474; 43 Ind. 386 ; 13 Gray, 527; 7 Gray, 177; 1 Cush. 219 ; 1 Greenl. Ev. 13 ed. § 5, 76; 1 Wharton Ev. 704; N. W. Law Reporter, June 10, 1880; 22 Albany Law J. No. 19 (N. Y. Court of Appeals, September 21, 1880).

      Emmett Thompson, prosecuting attorney, for the state:
    There was no error in the admission of the evidence of Brown and Stewart. 1 Disney, 539, 544, 547 ; 5 Foster (N. H.) 87; 52 Maine, 9; 17 N. H. 71; 4 Gilman (Ill.) 85; 8 Gill (Md.) 77, 87 ; 54 N. Y. 398. Nor is the form of their answer objectionable. 23 Penn. St. (11 Harris) 413 ; 4 Dev. & Batt. 236. Nor was the absence'of the check any objection. 41 Ala. 626 ; 40 Ill. 346 ; 46 N. H. 497; State v. Carr, 5 N. H. 367; 5 Hamm. 5 ; 2 Pick. 47; 1 D. Chip. (Vt.) 295 ; Brayt. 78; 9 Conn. 242; Id. 55; 12 Wall. 317; 22 Kan. 250; 31 Am. Rep. 186.
   Okey, J.

Whatever uncertainty there was in the law of England as to the proof of handwriting by comparison, was removed by the statute 17 and 18 Vict. c. 125, c. 27; 28 Vict. c. 18, s. 8. The only question there is as to the proper construction ■ of those statutes. They provide, in substance, that comparison of a disputed handwriting with any writing proved to the satisfaction of the judge to' be genuine, is permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted ■to any court and jury as evidence of the genuineness or otherwise of the writing in dispute. In this state, independently of statute, it has been settled that standards of comparison may be used by experts called as witnesses upon the trial of an issue as to the genuineness of a' signature, yet the standard of comparison, when not already a paper in the case, or admitted to be genuine, must be clearly proved by persons who testify directly to its having been written by the party. Bragg v. Colwell, 19 Ohio St. 407; Pavey v. Pavey, 30 Ohio St. 600. Evidence of this character is 1’eceived with caution, and there is a very general disposition in the courts to regard such testimony, as a general rule, of a weak and unsatisfactory character. Still the admissibility of such evidence is for the court, its weight for the jury. Nevertheless, to render it admissible it is quite clear that all the facts upon which the expert forms his opinion should be before the court and jury, to the end that they should determine, as far as they may be able to do so, whether the opinion .given is well founded, and so that the opposing counsel may have an opportunity to cross-examine as to such facts. Here, after the witness Brown had been inquired of, whether the signature to a certain note and the writing in the check alleged to have been forged were in the same handwriting, and he had answered, I should think they probably were,” and had added, in answer to the same question, “My remembrance of the check and my examination of certain, other papers brought to me by Mr. Wolf since the check was presented makes me think so.” The court excluded the latter part of the answer, which was the predicate of his opinion, but refused to exclude the first portion of-the answer, in which he states his conclusion. We are all of opinion that in so holding, the court below erred. The court and jury were, as I have said, entitled to consider the grounds of the opinion, and the defendant’s counsel clearly had a right to cross-examine the witness as to such ground of belief.

In so holding, however, we do not hold the witness was precluded from giving an opinion, on the ground that the check was not produced at the trial. Where the counsel for the state have endeavored to obtain the alleged forged instrument, and failed, its absence can have no other effect on the trial than to render a conviction more difficult.

The court also erred in admitting the testimony of Stewart. That witness testified that he was an expert in the examination of handwriting and had examined the alleged forged check when -it was presented at the bank ; that he did not recognize the handwriting, but was sure that the signature to it was not that of John B. Brown ; that he had never seen the defendant write, nor had he seen the signature of C. S. Koons until now, nor had he seen the alleged forged check since March 31. The note to Patterson & Curfman, mentioned in the statement of the case, was then shown to the witness, and he was permitted to state that the forged check and the signature to the note “ were probably in the same handwriting.” Row, in the opinion of a majority of the court, the witness had not qualified himself to express the opinion so given. It must appear, before such opinion is called for, that the witness has formed, or is then able to form, an opinion upon the matter in question. No such qualification appears anywhere in this record, and in the absence of it we hold that the opinion given was improperly received.

In view of the fact that the judgment must be reversed, and the cause remanded for a new trial, fo^ the reasons stated, it is unnecessary to determine whether the act of the sheriff and Ms deputy, who had testified .in the cause on behalf of the state, in remaining in the room where the jury were deliberating, affords of itself ground of reversal. But we all unite in condemning such acts. The jury should be left free to con-eider the case and find their verdict unrestrained by the presence of any person, and especially the presence of those who testified as witnesses in the catase, and upon -whose testimony the jury might desire to comment.

Judgment reversed,.