author: J. R. Swan, J.

text:
    James W. Crawford v. The Village of Delaware.
    The owners of unimproved lots can not recover damages from a municipal corporation for filling, ditching, or cutting down streets, being presumed to purchase with a view to a reasonable improvement of the streets.
    The owners of lots upon a street, the grade of which has not been established, must use reasonable care and judgment in making improvements, with a view to a reasonable and proper grade; and the town or city will not be responsible for injuries to such improvements .by afterward grading the street, if the grade, by ordinary care, could have been anticipated.
    If erections are made on a lot in accordance with an established grade, and the grade is afterward altered, and a substantial injury is thereby done to the owner of a lot, he is entitled to compensation.
    In error to the district court of Delaware county.
    This action was brought in the court of common pleas of Delaware county, to recover from the village of Delaware damages, on account of the corporate authorities grading a street.
    The petition set forth that on the 10th day of October, 1853, the defendant entered upon Sandusky street and the sidewalk thereof, in front of and adjoining plaintiff’s in-lotNo. 51 in North Delaware, and plowed, scraped, and carried away, and sold and converted to the use of the defendant, a large amount of earth, to wit, some six or seven feet below the surface of the earth, thereby rendering the plaintiff’s lot of much less value, *and putting the plaintiff to a large amount of expense and inconvenience in walling and fixing his said lot and residence.
    By the answer the defendant denies that it is guilty; and also justifies, under an ordinance of the corporation, for the grading of Sandusky street, and avers that no unnecessary damage was done to the plaintiff.
    Yerdict and judgment in favor of the plaintiff in the common plea3; appeal to the district court.
    On the trial in the district court a bill of exceptions was taken by the plaintiff, which is in substance as follows:
    The plaintiff, to maintain the issue on his part, gave evidence tending to show that he was the proprietor of an in-lot in the*town of North Delaware, situated on the west side of Sandusky street. That he had owned the ground and built a house upon it before it was brought within the corporate limits of the town. That the house was built in reference to the condition of the road then laid from Delaware to Sandusky. That the said ground of plaintiff, with other lands, was afterward laid out into lots, etc., and added to the town; in which addition the old road was retained and widened under the name of Sandusky street. That the house stood about twenty feet back from the street as widened. That some time after the plaintiff came into the corporation, the corporate authorities graded the street in front of the plaintiff’s lot, and cut it down several feet, to the serious injury of the plaintiff. He also gave evidence tending to show that the grade established by the town was not a reasonable or judicious one, and that plaintiff’s improvement was prudent, in respect to the grade of the road.
    The defendant gave evidence tending to show that the grade of the street established in front of plaintiff’s lot was a reasonable and judicious grade. The grading of the street did not injure the plaintiff: That plaintiff’s lot sloped to the south and east, and the-
    road or street in front of his lot, before it was graded, was several feet higher on the west than on the east side, and in grading it they were required to fill on the east side, to give the street a safe and proper shape. That the relative'condition of the road, and the surface of the plaintiff’s lot, was such *that a man of ordinary discretion and judgment would have expected, at the time the plaintiff built his house, that the street would probably be graded as it afterward was. ■ That the grading of the street did not encroach upon the plaintiff’s lot, nor in any manner endanger the stability of his house. The plaintiff also offered evidence tending to show that the excavation was deeper than the grade actually established; and the defendant gave evidence tending to show that the excavation was in pursuance of the grade and ordinance of' the town.
    The parties having rested, the plaintiff asked the court to charge-the jury, that if the proof showed that the property of the plaintiff had been injured by the act of the defendant in grading its street,, he was entitled to recover the amount of the injury whether such injury was wrongful or not. That the corporation had no right to-alter the grade of the street in such a manner as to impair, in any way or degree, the value of his property, or the convenient use and occupation of the same, without making compensation for all the-damage done. Which instruction, in the form asked, the court refused to give, but did instruct the jury in their charge as follows r That a city or incorporated village when acting within the scope-of its corporate powers, is not liable to owners of lots in the village for injuries sustained by them by the grading of the streets, unless such grading be wrongful. But for such wrongful act it is-liable for resulting injuries as fully as a natural person. That when such corporation, in the exercise of its legal powers, makes a reasonable-and proper grade of its streets, without touching or doing-any unnecessary injury to the unimproved property of owners’ along the streets so graded, and when such grading is not unreasonable, improperly, or wantonly done by such authorities, they are-not guilty of such a wrong as will make them liable to action, even though some damage may result to such owners of property along-the streets," by such grading. But where such grading is unreasonably, improperly, or wantonly made, and injury results to owners, they are liable to the extent of the actual damage sustained by such owner. That when the owner of a lot builds upon and improves his lot in good faith, with reference to an established grade of a street, and the *grade of such street is afterward so changed by the corporate authorities as that the property of such owner is-thereby substantially injured, such grading would be wrongful so far as to render the corporation liable to make compensation for such injuries, although it might be a reasonable and proper grade; for in such a case he would have a right to rely upon the continuance of the grade with reference to which he made his improvements. That where such corporation neglects to fix any grade, and none is established for a street, and the owner of a lot builds upon and improves his lot in reference to the then existing state of the road or street used in front of his lot, and uses ordinary discretion and judgment in making his improvements, having reference to the probable future improvements of the town, and with reference also ■to the right possessed by the corporate authorities to make -a reasonable and proper grade of such street, and he is afterward injured by the making of such grade, he is entitled to recover for actual damages he may sustain, even though the grade so afterward made may be a reasonable and proper one. But if he so locates his house without such reasonable reference to future reasonable and proper improvements of the streets adjoining his lot, and without such exercise of discretion and judgment, and' the town afterward makes such reasonable and proper grade, and he is thereby injured, he can not recover for such injury. That in ascertaining whether the act of the defendant in making the improvement was a just and reasonable exercise of its authority to improve the street, the jury are authorized to take into consideration any evidence showing that it was the first improvement and the first grading of the street, also showing the inequality of the ground, and that the plaintiff’s property was so situated in relation to it, as that the grade and improvements should have been reasonably anticipated by the plaintiff; and where such grade and improvements could have been thus anticipated by the exercise of -ordinary discretion and judgment, the plaintiff is not entitled to ■damages for the making of such reasonable and proper grade and ■improvement.
    The plaintiff also asked the court to charge the jury : “ That -.if they were satisfied from the evidence, that the defendant failed *to fill up the street in the low ground about four rods south of the plaintiff’s lot, by two feet as high as their ordinance required them to do, and by digging down the hill about four rods north of -the plaintiff’s residence, three feet lower than their ordinance authorized them to do, thereby digging and excavating the street, in -front of the plaintiff’s premises, five feet lower than they were authorized; that for the excess, having’been done in bad faith, and not in accordance with their corporation authority, that the plaintiff would be entitled to recover for the excess of digging and excavating.”
    The court thereupon charged the jury that the town was liable to the plaintiff for any damages wantonly or wrongfully done him in the grading of the said street, under the principles above laid ■down as applicable to the case before them.

      To all which refusal and charges of the court the plaintiff, excepted.
    No arguments were filed by either party.

      James W. Crawford and W. P. Beid, for plaintiff in error.

      Powell & Van Deman, and Finch & Critchfteld, for defendant in error.
   J. R. Swan, J.

In Goodloe v. City of Cincinnati, 4 Ohio, 500, it was held that where a corporation maliciously and illegally digs down a street, whereby the walls of a house are injured, the cellar ■destroyed, etc., the corporation is responsible.

In Smith v. City of Cincinnati, 4 Ohio, 514, it was held that the corporation was liable in such case, in the absence of all malice, if its acts were illegal.

In Scovil v. Geddings et al., 7 Ohio (pt. 2), 211, which was an action of trespass, brought, not against the corporation, but persons acting under the orders of the trustees of a town, for injuries to lots, sustained by individuals in grading a street, it was held that the defendants were not responsible, individually, for doing what the trustees were authorized by law to do.

*The reasons given by the judge who delivered the opinion in this last-mentioned case goes further; but that the scope of the decision is only what I have stated, will appear from the statement of the case and the remark of Lane, J., in Rhodes v. Cleveland, 10 Ohio, 161, who says: “In Scovil v. Geddings et al., we held the agents of the trustees of a town not liable, because they were acting within their jurisdiction.

Avery, J., in delivering the opinion of the court in the case of The Town of Akron v. McComb, 18 Ohio, 231, says of the case of Scovil v. Geddings et al.: “No one can deny the correctness or propriety of that decision. If the town has power to cause the act to be done, and the agents perform it in strict accordance with the legal order, they can not, of course, be made personally liable.” Indeed, the case of Scovil v. Geddings et al. has never been overruled, and remains the law of this state.

In Rhodes v. City of Cleveland, 10 Ohio, 160, which was an action on the case for cutting ditches and water-courses in such a manner as to cause the water to flow upon and wash the plaintiff’s land, it was held that the corporation was liable. An individual may lawfully dig ditches upon his own land, but he has no right to thereby overflow the land of his neighbor. The court adopt the same principle in respect to corporations which is applicable to individuals in the use of their property, The court say: “We hold that corporations are liable, like individuals, for injuries done, although the act was not- beyond their lawful powersand this, upon the principle of justice and good morals, that it should “repair a consequential injury which ensues from the exercise of its functions.”

We come now to the case of McComb v. Town of Akron, 15 Ohio, 474, and the case of Town of Akron v. McComb, 18 Ohio, 229. The two cases are the same. In these cases it appeared that McComb was the owner of a lot in Akron, upon which he had erected a brick building, and had fitted it up for the purpose of merchandising. He had made his improvements with an express view to the level and grade of Howard street, adjoining which the building stood. After he *had thus made his improvements with a view to the level and grade, the town council caused the ground-in front of his building to be excavated, in consequence of which the value of his house and lot was greatly injured ; and for which he brought the action against the town.

It would seem from this statement of the case, that the corporation of the town of Akron, in changing the level and grade of' Howard street, acted within the the scope of their authority; did not disturb the soil of McComb’s lot, or undermine his building; but lawfully so changed the grade of the street as to make the store of McComb, in its relation to the street, less accessible and convenient ; and that the action waB brought to recover damages on that account. The court held that, although the town was authorized to make the improvement, and had not exceeded the power conferred upon them, and had proceeded in a proper manner, and with reasonable care, the plaintiff was entitled to his action.

This decision is in direct conflict with English and American cases. Governor, etc., of the Cast Plate Manufactures, 4 Term, 794; Bolton v. Crother, 2 B. & C. 703 (9 E. C. L. 227); King v. Comm. of Sewers, 8 B. & C. 355; Goszler v. Corporation of Georgetown, 6 Wheat. 593; Henry v. Pittsburg Bridge Company, 8 Watts & Serg. 85; Benedict v. Gort, 3 Barb. 459; Radcliff’s Executors v. Mayor of Brooklyn, 4 Comst. 195; Matter of Furman Street, 17 Wend. 667; Wilson v. Mayor of New York, 1 Denio, 595.

The remark of Bronson, J., in Eadcliff’s Executors v. Mayor of Brooklyn, 4 Comst. 205, that “ if in McComb v. Town of Akron, the Supreme Court of Ohio intended to hold that persons, whether artificial or natural, were answerable for the damages which might result to an adjoining land-owner from the grading of a street, though the act was done under ample authority, and in a proper manner, tL.e case is in conflict with many decisions, and can not be law beyond the State of Ohio,” is probably true. And it is also true, that the Supreme Court, in making that decision, were aware that .it was in direct conflict with the decisions both in England and America.

The principle decided by the Akron case was this: Where a ^building is erected upon a lot, with a view to the grade and level of the street, and a corporation undertakes to alter the grade, :and dig down the street, so as to materially impair the value of the erection, the corporation is liable for damages, notwithstanding the legislature has vested in the corporation the power so exercised, and although reasonable care was taken by the corporation to prewent injury.

The Akron case recognizes a private right in a lot owner, to the use of a street abutting on his lot, where he has made erections with a view to the established grade of the street; and for which right, if materially invaded by a new grade, made under legislative authority, there exists a constitutional obligation to make compensation, so far as such right is materially injured or impaired. On the other hand, the English cases, without inquiry whether any such private right to the use of a street exists or not, hold that a lot-owner is not entitled to compensation, unless provision is made therefor by act of Parliament. The American courts have generally followed the English decisions.

It may be proper, therefore, to examine the basis upon which the English cases rest.

The power of the English Parliament is supreme. It would be quite as absurd for English courts to pronounce an act of Parliament, adopted by the throe estates of the realm, unconstitutional, or unauthorized, as for this court to pronounce a provision of the constitution of the United States unconstitutional and void. “ What the Parliament doeth, no authority on earth can undo.” An authority, therefore, derived from the supreme power of the state, or, in other words, operations undertaken and conducted by virtue of an act of Parliament, can not be deemed unauthorized in view of the English law, nor lay any foundation for a common-law acticn for damages. If, indeed, the supreme power of a state authorizes and directs an act to be done, who has the power to pronounce that act unlawful?. No co-ordinate power exists to control it. The grantee of a franchise or a public agent, so long as he does not transcend the authority conferred upon him by act of Parliament, in the exercise even of eminent domain or its incidents, represents the supreme power of the state; and just so *far as the same supreme power has provided the mode and means of compensation for the violation of the rights of private property, in the exercise of eminent domain or its incidents, there is a remedy; but no further. • It is true, that it is the duty of Parliament, and one which is in general scrupulously performed, to provide compensation to-individuals who are deprived of their property,„for the public use, or who are injuriously affected by the erection of public works. But there is no power over Parliament to enforce this duty, or to-create a liability, beyond what Parliament specifically recognizes- and provides. Hence the English courts, in holding that an action against commissioners of streets, or municipal officers or their agents, acting under the authority of an act of Parliament, will not lie for damages occasioned by the construction of a public, work, any further than is especially provided for by the law itself, do not simply decide a principle of municipal law, but announce a. constitutional principle, inseparable from the recognition of a fiat of' the supreme power of the state. Now, if the supreme power were vested in our general assembly; if it could change or create, afresh, by statute or ordinance, the constitution of the state itself,, as the English Parliament may do; if what it done no authority on earth could undo or declare unauthorized or unlawful, the English adjudications would be clearly applicable to the question, whether an act done by authority or direction of a statute could be deemed unlawful or actionable. The English cases, and the American cases in following them, simply vindicate the supremacy of Parliament, and illustrate and carry out in practice, a well-settled principle of English constitutional law.

The general assembly of Ohio is limited and restricted in -its powers. Its statutes are void if unauthorized by the constitution. If, by statute, it confers powers upon municipal corporations, those powers must be exercised, and are presumed to be conferred, in subordination to the constitution, and to the rights of property, -whether corporeal or incorporeal. If the land of a citizen or his rights in property are commanded to be taken from him, it is beyond the power of the general assembly to authorize either to be touched until compensation is made.

*The principal, and perhaps the only, question in this case is, whether there is any recognized legal right in the owner of the lot to the street, and whether that right is invaded by destroying or materially injuring access to the lot.

It will not be denied, that if the owner of a lot conveys, by deed,, to his neighbor, and as appurtenant to an adjacent lot, a private way, and the grantee erect buildings on his own lot with a view to-the enjoyment of the easement, the grantor could not lawfully, by digging pits or erecting embankments upon his lot, interrupt the grantee. And if it be found that a lot-owner has a like recognized right to the use of a street, it would seem to follow that such right, of property could not be materially impaired or destroyed without compensation.

The rights of an owner of a lot to use and enjoy the same in any manner he pleases, so that he does not injure or invade the rights of other adjacent lot-owners, is well settled and clearly defined; but it has been seriously questioned .whether the owner of a lot bounded' by a street has any other rights to the street than such as one lot-owner has in the adjacent lot of his neighbor. It would hardly seem necessary to discuss such a question; and yet, in the case of Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, 4 Comst. 203, which was an action brought against the Mayor of Brooklyn, etc., for-cutting down a street, so that a portion of the lot of the plaintiff,, with the shrubbery, fixtures, fences, etc., fell, the act of the corporation was sought to be justified by the court, on the principle that a man may enjoy his land in the way such property is usually enjoyed, without being answerable for consequential damages to an adjacent owner. It is satisfactorily shown in the elaborate opinion in that case, that owners of adjacent lots have each aright to dig pi ta-in their respective lots, without being answerable to each other. It was necessary, however, in that case, to further hold, that a lot-owner might lawfully dig a pit in his own land, whereby the soil, fences, and shrubbery on the lot of an adjacent owner is removed and falls into the pit. Whether this last proposition is sustainable, it is not necessary to inquire; for it must be conceded, that if the owner of a lot abutting on a street stands in the same relation to the ^street which adjacent proprietors of lots stand in to each other, no right of a lot-owner is invaded by cutting down or blocking up a street, whereby his buildings are rendered inaccessible and worthless.

But let us inquire whether there is any analogy between the rights of a lot-owner in the adjacent lot of another person, and the rights of a lot-owner in an adjacent street.

Distinct from the right of the public to use a street, is the right and interest of the owners of lots adjacent. The latter have a peculiar interest in the street, which neither the local nor the general public can pretend to claim: a private right of the nature of an incorporated hereditament, legally attached to their contiguous grounds, and the erections thereon; an incidental title to certain facilities and franchises, assured to them by contracts and by law. and without which their property would be comparatively of little value. This easement, appendant to the lots, unlike any right of one lot-owner in the lot of another, is as much property as the lot itself. Lexington & Ohio R. R. v. Applegate et al., 8 Dana, 294; Haynes et al. v. Thomas, 7 Ind. 38; Lewis Street, 2 Wend. 472; Livingston v. Mayor of New York, 8 Wend. 85; Rowan’s Ex’rs v. Town of Portland, 8 B. Mon. 232; Bingham v. Doane, 9 Ohio, 165; Le Clercq v. Gallipolis, 7 Ohio, 218; Tate v. Ohio & M. R. R. Co., 7 Ind. 480.

In Bingham v. Doane, 9 Ohio, 167, Lane, C. J., in relation to a highway says: “Its existence generally contributes 'to the enjoyment of the adjacent lot, and confers additional value upon it, and any act of another, which impairs that value, or interferes with that enjoyment, may be the subject of a suit.” . . . “The easement — the privilege of the road — the advantage it confers on his land is his, but not the road itself. The right lies not in livery, but in grant."

This appendant easement forms a large part of the consideration paid for lots, and is of such intrinsic value to lot-owners that, in most cities, assessments for the improvement of streets are made upon the adjacent lots, instead of the city generally.

But while we recognize this right of property in a street as incident *to an adjacent lot, we must also recognize the right

of the public to grade and improve the street; and the question, therefore, is, under what circumstances, and to what extent, must the private right yield to the public?

We hold, as the court below did, that the owner of an unim proved lot can not claim damages for filling, ditching, or cutting down a street; for he is presumed to purchase the lot with a view to a future improvement of the street in such reasonable manner as the public authorities may deem expedient.

We also hold that the owner of a lot upon a street, the grade of which has not been established, must use reasonable care and judgment in making his improvements, with reference to the right possessed by the corporation to make a reasonable and proper .grade; for if, by ordinary care and discretion, the grade could have been anticipated, the owner of the lot can not make the corporation responsible for his own carelessness and indiscretion.

But the question before us is, whether, if a grade has been established by the corporation, and the owner of a lot in good faith erects buildings upon his lot, with a view to the established grade, and. the corporation, afterward, for the convenience of the public, cuts -down the street, so as to substantially and materially injure the buildings; for instance (as in the case of McComb v. Akron)¡ cuts ■down the street in front of a store, so that the owner and the public •-can have no access to the store from the street, the question is whether, under these or like circumstances, the owner has any remedy for such destruction of his property? It is said he has not, ’because it is damnum absque injuria; that is, no right has been in-waded or injured. We hold that when the avenue to the place of Business of the' lot-owner, and his use of the street as an incident to his permanent erections, is thus blocked up or taken from him, ¡after the establishment, and by the alteration of a grade, the private rights of the owner, inherent in and incident to the erections •upon the lot, are invaded, and no curt phrase, like damnum absque ■injuria, can conceal the invasion or the substantial injury.

It is as positive and substantial an injury to private property, ■^and as direct an invasion of private right, incident to a lot, .as if the erections upon the lot were taken for public use. It comes not within'the letter, but manifestly within the spirit of the provision of the constitution which requires compensation for property taken for public use.

In thus affirming the case of McComb v. Akron, we do not deny 4o the corporate authorities of cities and towns a control over tha use, the grade, and regrade of streets. But if, after establishing the-grade, they block up or cut down the street before one man’s house-for the benefit of others, doing a substantial injury, the rights of property have been invaded, and the plainest principles of justice require compensation.

"We think the whole charge of the court below was as favorable* to the plaintiff as the principles of law would justify.

Judgment below affirmed.

Brinkerhoff, Scott, and Sutliff, JJ., concurred.


source: Caselaw Access Project

author: Bowen, J.

license: Public Domain

text:
    Philip Fouts v. The State of Ohio.
    Upon the trial of an indictment for homicide, a juror who is challenged for-cause, and states upon his voir dire that he has formed an opinion as to the commission of the murder, and as to the guilt or innocence of the prisoner-to be tried, should be set aside by the court as an unsuitable juror, although, he at the same time further states that he does not think the opinion thus-formed will influence his verdict in the case.
    Where two or more persons are proved to have been associated together for an. illegal purpose, an act or declaration of one of the parties, in furtherance-of the common object, and whilst engaged in the prosecution of the general design, may be given in evidence against his associates.
    But the declarations and admissions of a party, made in his own behalf, and'detailing what he personally intends to do, but not in furtherance of any-concerted action with others, are not admissible as evidence against an associate in crime, although he and such associate may afterward engage in. and be indicted for the same criminal act to which the declarations and admissions related; and although it may also be proved that, before the making of the declarations, the two had jointly arranged to commit the identical act.
    *In error to the court of common pleas of Morgan county.
    The plaintiff in error was indicted for the murder of Benjamin P. Scott, and at the March term, 1857, of the court of common pleas-of Morgan county, was tried, found guilty and sentenced to be liungon the 27th day of June next following. A writ of error was allowed on the 6th of June, and the execution of the sentence stayed by order of a member of this court. The murder was committed* on the night of Tuesday, October 28, 1856. The indictment contained a count finding that Jonas Fouts was present, aiding Philip-to commit the murder, and concluded by finding the two jointly guilty of the act. They were arraigned together and.each pleaded, not guilty, and Philip was put upon his trial separately.
    During the progress of the trial a bill of exceptions was taken,, from which it appears that the counsel for the prisoner raised various questions, of which but a part are noticed by this court.
    It appears that one Hickman Bullock, who was called to sit as a juror, having been put upon his voir dire, stated that he had formed an opinion as to the commission of the murder, and as to the guilt or innocence of the prisoner, but that he did not think the opinion thus formed would influence his verdict in the case. And thereupon the counsel for the prisoner challenged the juror for cause,, but the court overruled the challenge and permitted the juror to be-sworn. - r
    After the jury was sworn, the counsel for the state introduced as-a witness one Jacob Parsons, who testified that some six or eight days previous to the death of Scott, he heard Jonas Eouts say: “If ever Benjamin P. Scott goes to Windsor, he is a dead man — his life is threatened if he goes there.” ■ Philip was present and replied: “That is so.” “Both seemed to be not out of humor.”
    George Parsons, another witness introduced by the state, testified that he had a conversation on Friday previous to Scott’s death (which occurred on the next Tuesday night) with Philip, in which Philip stated something concerning a difficulty between Scott and Jonas Fouts’ family, and said if he were in his ^brother’s place he would kill Scott, and asked witness if he would not. Witness told him he thought he would, if reports were true. Philip-said that Jonas had not spunk enough to kill him, but he had a friend who had- — -that he would be killed within two weeks — -yes, at the next attempt.
    Amos M. Scott, a brother of the deceased, was introduced by the prosecutor, and asked to state what Jonas Fouts said to him in Windsor, the day before the murder. This question was objected to by the prisoner, but the court permitted it to be answered, and the prisoner excepted; whereupon the witness made the following statement:
    “ My brother Benjamin staid all night at my house on Monday,, the 27th. The next morning, I wont with him to Windsor; came from mill- to Thomas’ store; my brother went into the store; I went past; saw Jonas Eouts in the alley; Jonas hallooed to me, and asked me where Benjamin was; I told him he staid at my house last night. He then asked me where he was now. I told him, in Thomas’ store. He said his brother and he had been looking for him until 10 or 11 o’clock the night before. After some further -conversation about our money matters, he told me that if he did not get to see Benjamin, he wished me to tell him not to go out to Rousseau till night, and he and his brother would go along with him. We then parted, and I went up street, to Dr. Abbott’s office. Benjamin came in a few minutes afterward. In a few minutes after, Jonas came in. We then started out of the office — Dr. Abbott, Jonas, Benjamin, and myself — and walked across the street, into the alley by the warehouse. Just before we got there, Benjamin showed me a letter he had received from my brother John, in Illinois ; handed it to me, and I read it. While I was reading, Abbott went away. After I had finished reading the letter, Benjamin spoke about settling up his' affairs-, and wanted to get through in time to get to Rousseau that evening. Jonas told him not to go till night, and said if he did, he and Philip would go with him. Benjamin then mentioned'the names of persons he wished to settle with that day, and mentioned several places where he was going, and Jonas told him again not to go until night, and he and his brother would go with him. 1 told *my brother, if he did not start until 7 or 8 o’clock, to come out and stay with me, as it was a dark and lonesome road from Pennsville to Rousseau. Jonas said I need not be alarmed; that- he and his brother were going to Rousseau, and would go all the way with him. I then bade my brother farewell, and walked down street; my brother and Jonas walked over toward Blake’s saddler-shop.”
    The counsel for the state then called Moses G-eddis as a witness, and asked him to state a conversation which he had with Jonas Eouts previous to the death of Scott. The prisoner’s counsel objected, but the court permitted the witness to make the statement asked for. The witness stated that he saw Jonas Eouts in Windsor the Monday before Scott was found dead. Jonas informed witness that he was going to do something, in a few days, that would penitentiary him, and said that witness would hear of it shortly, or in a few days. He paused a moment or two, and then said Benjamin •Scott ought to be killed, or any other man that had conducted himself as he had.
    It is claimed by the plaintiff in error that the court below erred:
    1. In overruling his challenge to the juror, Hickman Bullock.
    2. In permitting the declarations of Jonas Fouts, made in the absence of the prisoner, to be given in evidence.

      Fvans & Wood, for the plaintiff in error.

      Francis B. Pond, prosecuting attorney, for the state.
   Bowen, J.

The 14th section of the “act relating to jurors,” statute 489, provides that a petit juror may be challenged for “ any cause that may render him, at the time, an unsuitable juror, and the validity of such challenge shall be determined by the court.”

Some of the causes which disqualify a juror from serving are pointed out in the statute; as where he has been an arbitrator of the same controversy, or has an interest in the cause, or has an action depending between him and the party, or has formerly been a juror in the same cause, or where he is the party’s master, servant, ^counselor, steward, or attorney, or is subpenaed in the cause as a witness, or where he is akin to either party. Proof of the existence of any one of these causes will exclude a person from serving as a juror. But it was not deemed safe to stop with this enumeration of causes, and therefore authority is given to challenge for any cause touching his competency, and the court must decide upon the validity of the objection which is raised, and if an incompetent juror be permitted to serve, after he is challenged, the question can be reviewed on error, and the verdict be set aside.

Any previously formed opinion upon the question to be tried, or any partiality or prejudice'against a party whose interests are involved, which will be likely to lead to conclusions unfavorable to him, in the determination of the issue, are causes which will warrant the challenging of a juror, and require his exclusion from the panel, as being unsuitable to serve. The jury should enter upon the trial with minds open to those impressions which the testimony and the law of the case ought to make, not with those preconceived opinions which will resist those impressions. United States v. Burr, 1 Term, 415. How was it with the juror, Hickman Bullock? He had formed an opinion as to the commission of the murder, and as to the guilt or innocence of the prisoner. But he had confidence •in his ability, notwithstanding, to hold the scales of justice even— to hear dispassionately, and to decide impartially and justly the prisoner’s case. His opinions, though to this dangerous extent, already formed, he did not think would influence his verdict in the •case, and he was prepared and willing to make the experiment of attempting to resist such preconceived opinions and bias of mind, if ho should be directed to serve. It was said by Judge Marshall, on the trial of Aaron Burr, that if the opinion formed, be on a point •so essential as to go far toward a decision of the whole case, and to have a real influence on the verdict to be rendered, the distinction 'between a person who has formed such an opinion, and one who ■has, in his mind, decided the whole case, appears too slight to furnish the court with solid ground for distinguishing between them. Bullock’s condition of mind was not adapted to a disinterested and impartial canvassing *of the testimony. As an upright man, he might struggle to promote the finding of a just ■verdict, but however firm his principles and moral strength of purpose mighü be, there was still danger to be apprehended in his capacity to go through the case, uninfluenced by the notions which he had already conceived. The prisoner was not compelled to bravo the consequences of submitting to the determination of a trier who might, perchance, be swayed by opinions which he had made up before hearing the evidence. ¥e think the juror ought to •have been set aside for incompetency.

2. Did the court err in permitting the declaration of Jonas Fouts, •made in the absence of the prisoner on trial, to be given in evidence to the jury ?

Where several persons conspire to do an unlawful act, and the •connection and purpose be first made out, to the satisfaction of the •court, the acts and declarations of one, who afterward engaged in the prosecution of the criminal design, and in furtherance of it, may be received against a co-conspirator, in the same transaction. A common case, given in the books, is of rioters. 10 Pick. 497. But the rule extends equally to all cases where a combination, among several individuals, to commit a wrong, is once established. Each then becomes responsible for the declarations as well as the acts of the others, which maybe spoken or done in furtherance of the .common purposes. Waterbury v. Sturdevant, 18 Wend. 360; U. S. v. Gooding, 12 Wheat. 468; Am. Fur Co. v. United States, 2 Pet. 363.

Previous to the introduction of any of the declarations of Jonas Fouts, there was evidence, proper for the consideration of the jury, tending to show that an arrangement had been perfected between the two Fouts, to murder Scott. What either of them did afterward, toward the consummation of the object which they had thus mutually agreed to effect, was competent evidence against both or against either.

The declarations made by Jonas Fouts to Moses Geddis, do not, however, fall within this rule. He related what he himself intended to do. He disclosed a design, merely, entertained by *himself. He connected no one in it, nor did he indicate, by his remarks, any intention to further or carry into effect any combination against the life of Scott. He made no such allusion, but simply imparted the secrets of his own bosom, and the determinations of his own mind. Philip Fouts can not be held responsible for such declarations, made on the sole responsibility of his brother, and not in furtherance of any common and joint plan of theirs. The court of common pleas, therefore, we think, erred in admitting this testimony.

It is different, however, in regard to the declarations made by Jonas Fouts to Amos M. Scott. These related to the common design, and were in furtherance of it. They tended to show that both he and Philip had, the night before, been searching for the deceased; that the plan was, for both of them to undertake to accompany him, after night, to Rousseau, with the view of thus securing an opportunity of perpetrating the crime which they contemplated committing. It was a disclosure, on the part of Jonas, of the common object and plan which had been devised by him and Philip, and of acts done and to be done in pursuance thereof. In other words, the conversation itself was, in fact, an instrumentality, a means employed to bring about an opportunity for carrying into effect their previously formed criminal purpose. In this light, the testimony, as to the declarations of Jonas, was rather evidence of acts — verbal acts — and part of the res gesta, than mere declarations in the ordinary sense.

The principle on which the acts and declarations of other conspirators are admitted in evidence against the person prosecuted, is, that by the act of conspiring together the conspirators have jointly assumed to themselves, as a body, the attribute of individuality, so far as regards the prosecution of the common design; thus rendering whatever is done or said'by any one, in furtherance of that design, a part of the res gesta, and therefore the act of all. 3 Greenl. Ev., see. 94. For this reason the evidence of the declarations made to Amos M. Scott by Jonas Fouts, was clearly admissible as against Philip Fouts, and the court did not err in overruling the defendant’s exceptions to it.

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

Bartley, C. J., and Swan, Brinkerhoef, and Scott, JJ., concurred.


author: By the Court.

text:
    The Steamboat Monarch v. The Marine Railway and Dry-Dock Company.
    The captain of the steamboat Monarch hired a barge at Cincinnati, by contract, in the name of the boat and on behalf of her owners, for the purpose of loading the barge with lumber at Louisville, to be taken in tow of the steamer to St. Louis. This purpose was made known to the owners of the barge at the date of the contract. The captain of the Monarch intended to carry out this purpose for the benefit of the Monarch and her owners, who were aware of the contract, and sanctioned it.
    The Monarch took the barge in tow, loaded, at Louisville, but the water had become so low that she could not go to St. Louis, but procured another steamboat to tow the barge and freights there. Held, that the Monarch was liable, under the water-craft law of Ohio, in an action against her by name, for the hire of the barge, although she was transferred to new owners after the hiring, and before suit.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati,
    On the 28th of May, 1856, at Cincinnati, the captain of the steamboat Monarch, a vessel navigating the waters bordering upon the State of Ohio, in the name of the boat and on behalf of her owners, hired, by written .contract, of the'Marine Railway and Dry-Dock Company, the barge Wide Awake, at the rate of ten dollars per day, for the purpose of loading the same with lumber Rt Louisville, and transporting the lumber, on the-barge, in tow <of the Monarch, from Louisville to 'St. Louis, which purpose was made known to said company at the date of the contract. The> captain intended to carry out this purpose for the benefit of the-Monarch and her owners, who were aware of the contract, and sanctioned it.
    *The Monarch, that trip, was loaded with lumber and shingles, principally"; and the barge, having been sent ahead by the captain of the Monarch, to Louisville, and loaded, was there taken in tow of the Monarch about the first of June, 1856; but the water-had become so low that the Monarch could not go to St. Louis, and procured another steamboat to tow the barge to St. Louis. The largest amount of the freights of the lumber, etc., shipped on the barge, was applied to the expense of getting the barge towed to St. Louis, and the remainder was used for the steamboat Monarch; and. the Monarch could not have taken all the freights without the barge.
    The barge was retained under the contract ninety-two days.
    The Monarch passed into the hands of new owners, by a sale, in. Lec.ember, 1856.
    In January, 1857, said company brought suit in the Superior Court of Cincinnati against the Monarch, by name, for the hire of' the barge. The case was submitted to the court at special term,, and the court found against the boat for the hire of the barge.
    A motion was made on behalf of the boat to set aside the finding, and for a new trial, on the ground that the finding was contrary to law.
    The Superior Court, at general term, on this motion reserved,., affirmed said finding, and judgment was entered.
    To reverse this judgment, a motion is made on behalf of the Monarch, for leave to file a petition in error in the Supreme Court.

      Coffin & Mitchell, for the motion,
    insist that the Superior Court erred, because:
    1. A steamboat is not liable to be sued by name, even for sup- • plies, after a change of owners; and,
    2. This barge was not in any sense within the “supplies” of the-statute.

      King, Anderson, and Sage, contra.
   By the Court.

Motion overruled.


text:
    *John Herig v. R. Nougaret.
    Suit by N. v. H. on undertaking on docket of P., a justice of tbe peace, for stay of execution. N., to maintain tbe issue on bis part, introduced tbe record of tbe judgment, and H. admitted tbat at tbe time be signed, bis name on tbe docket, justice P. added to tbe name “for stay.” H. offered to prove that be signed bis name in blank on the docket, and tbat no undertaking was then written out; and that after P.'s term of office had expired, and his official records had been transferred to his successor, ex-justice P., without the consent of H., wrote on the docket, above H.’s blank signature, the undertaking sued on. Held, that it was not error in the court below to reject this testimony offered by H.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Cuyahoga county.
    In December, 1855, Nougaret recovered a judgment against Halenz, before Philpot, a justice of the peace. Upon the record of this judgment Nougaret brought suit before another justice against Herig, as bail for stay of execution, and judgment was rendered •against Herig, and he appealed.
    In the common pleas, the case was submitted to court for trial, .and judgment was rendered against Herig, who took a bill of exceptions, from which it appears that Nougaret, to sustain the issue ■on his part, gave in evidence the record of the case of Nougaret v. .Halenz, before Justice Philpot.. This record contains an undertaking in the usual form for the stay of execution, signed “ John Herig, for •stay,” and it being admitted by Herig that Justice Philpot appended the words “for stay” to the name of said Herig, at the time he •wrote it on the record, Nougaret rested his case.
    Herig then, to maintain the issue on his part, offered to prove that when he wrote his name on the record he wrote it in blank, no undertaking having then been written or entered on said record. ‘That long after said Philpot’s term of office had expired, and his •official records had been transferred to the custody of his successor,' Justice Tail, who had entered upon his official duties, *the said Philpot intermeddled with the records of said case of Nougaret v. Halenz, and, without the consent of the defendant Herig, wrote •therein over the name of said Herig, where he had signed it in blank, the undertaking therein contained, and upon which the •iiction against him was founded.

      Nougaret objected to the admission of this testimony, and the court sustained the objection, and ruled it out; and Herig excepted, •and prosecuted a petition in error in the district court to reverse the rulings and judgment of the common pleas; but the district court .affirmed the same.
    To reverse this affirmance a motion is made by Herig for leave to file a petition in error in the Supreme Court.

      John M. Eeisley, for the motion.

      William Slade, Jun., contra.
   By the Court.

Motion overruled.