author: Scott, J.

text:
    James L. Singer v. The Heirs of Richard Belt.
    Section 562 of the code, which gives to the party against whom judgment is rendered, in an action for the recovery of real property, a right to demand another trial, hy notice on the journal, does not apply to actions of ejectment pending when the code took effect.
    In Error to the District Court of Hamilton county.
    The case is stated in the opinion of the court.
    Tilden, JRairden Curwen, for plaintiff in error.

      Fox French, for defendants in error.
   Scott, J.

The defendants in error brought an action of ejectment, under the former system of practice, for the recovery of a lot in Cincinnati.

The case having been brought into tbe district court of Hamilton county by appeal, was there submitted to tbe court without tbe intervention of a jury, and tbe issues were found for tbe lessors of tbe plaintiff. Tbe plaintiff in error, who was tbe defendant below, at tbe same term at which tbe trial was bad and judgment rendered, by a notice on tbe journal, demanded another trial; but tbe court refused to vacate tbe judgment, and allow tbe action to stand for trial at tbe next term, as provided in section 562 of tbe code. Tbe defendant excepted to this refusal of tbe court, which is one of tbe errors be now assigns.

Did tbe court err, in bolding that this section of tbe code was not applicable to tbe case ?

In tbe old action of ejectment, a judgment for tbe defendant did not preclude tbe plaintiff from bringing another action..

But tbe code, in requiring actions to be prosecuted in the name of the real party in interest, would have concluded the parties by the result of a single trial, as well in respect to real as to personal property, if no exception had been made as to the former. And it was therefore provided in section 562, as follows:

“ In an action for the recovery of real property, the party against ■whom judgment is rendered, may, at any time during the term at which the judgment is rendered, demand another trial, by notice on the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term.”

But, the “ action for the recovery of real property,” here spoken of, is the action provided for in the same chapter of the code itself, and not an action of ejectment which might he pending when the code took effect. All suits pending when the code took effect are expressly excepted from its operation by section 602. And as the judgment in ejectment would not prevent either party from bringing another action under the code, and thus obtaining, if desired, two additional trials of the questions in issue, there could be no necessity for giving a second trial of the old action then pending.

But, as the 602d section further declares that, the “ provisions of this code shall apply after a judgment, order, or decree heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify or reverse it,” and as the demand for another trial was a means of vacating the judgment rendered in the case, it is claimed that this demand, as a proceeding to vacate the judgment, was properly made under the code. But the demand for another trial authorized by section 562, is not a proceeding to vacate a judgment within the meaning of section 602. The “ proceedings to vacate, modify or reverse,” referred to in this latter section, are those which the code has provided for the correction of errors, mistakes, and irregularities in the entering of judgments, orders or decrees, and in the correction of which the court is required to exercise a judicial' discretion. But, when a demand for another trial is properly made under section 562, by notice entered on the journal, tlie judgment is vacated by this act of tbe party, and the court has no discretion in the case.

We think, then, there was no error in overruling the demand of the defendant below for a second trial.

The arguments of counsel in this case have been mainly directed to another question, which, we think, the record does not fairly present.

The title of the plaintiff’s lessor is derived from John C. Symmes, through a deed from him to the administrators of Israel Ludlow, which contains no words of inheritance, and which, the defendant ¿ below claims, for that reason, conveys only a life estate. This deed was made in 1810, and it is quite probable that the grantees are since dead. But it is certainly not impossible that they should be yet living, and, for aught that appears in the record, they are still in full life. And as the title of the plaintiff’s lessor is not otherwise questioned, the plaintiff was entitled to judgment, unless the estate granted by John C. Symmes has been determined. It is, therefore, unnecessary to inquire whether that estate was a fee simple or a mere life estate.

Judgment affirmed.

Swan, Brinkerhoee and Sutliee, JJ., concurred.


source: Caselaw Access Project

author: J. R. Swan, J.

license: Public Domain

text:
    The Trustees of School Section 16, etc. v. Peter Odlin.
    1. Where the petition, in an action for rent, alleges as the basis of the amount of rent, an appraisement “ duly and legally madeand the answer, instead of stating in what particular the appraisement is illegal, alleges that “ the appraisement was not legally and duly made,” the answer may be subject to motion under section 118 of the code, on account of indefiniteness; but if the parties proceed to trial on the issue, the objection is waived.
    2. Where the issue made by an answer involves a deduction or conclusion of law, it is not bad on error, if the language of the allegation, according to its ordinary meaning, contains a fact constituting a defense.
    3. Where two leases of school lands, under the act of 1817. 2 Chase Stat. 1026, vest by assignment in one person, the two tracts cannot be appraised as one entire tract or farm; the trustees being entitled to the benefit of any enhanced value arising from the original severance, and the assignee to the benefit of any enhanced value arising from the two lots having been united into one entire farm or tract.
    In Error to the Superior Court of Montgomery county.
    The facts are stated in the opinion of the court.

      Vallandigham $ McMahan, and Kennedy § Thurman, for plaintiffs in error.

      Peter Odlin, in person.
   J. R. Swan, J.

I. It is insisted that the answer of the defendant does not state facts sufficient to constitute a defense.

The action was brought upon leases for school lands to recover rent — the rent being fixed by the terms of the lease at six per cent, on the appraised value of the premises.

It appears, from the finding of facts by the superior court of Montgomery county, that on the 12th day of September, 1820, the trustees of the section leased to one John Cox, 86 57-100 acres of the school section, by permanent lease, commencing March 4, 1821, subject to reappraisement each 33 years thereafter, under the statute. That at the same date, said trustees made a similar lease to one Ludwig Speice, for 100 14-100 acres of the same section, to commence at the same time, and in all respects similar in its provisions and covenants to the first lease. That said leases, by assignments under the different owners thereof, came into the ownership and possession of Peter Odlin, the defendant in this case. The court further find that on the 4th day of March, 1854, the said lands became, by the terms of said leases, subject, under the statute, to reappraisement, and that between the 6th and 10th of March, 1854, the commissioners of Montgomery county appointed three freeholders of the county, and not residents of the township, appraisers thereof, and that the premises were appraised as hereinafter stated.

This action was brought to recover rent based on this appraisement.

The petition contains a count upon each lease, and after stating that by the terms of the lease, it was provided that the lands should be revalued at the expiration of thirty-three years, from the 4th day of March, A. D. 1821, and that the original lessee, his heirs or assigns, should pay annually the yearly interest of six per cent, on the valuation or appraisement at the time of the execution of the lease, and on all future valuations or appraisements thereof, to the trustees and their successors; the petition then, in respect of the reappraisement upon which the amount of the rent is determined, alleges “that in pursuance of said written lease, and according to the statute in such case made and provided, the leased lands were, on the 10th day of March, 1854, duly and legally revalued or appraised at fifty-five dollars per acre; that the total sum of said revaluation amounted,” etc., and claiming as rent six per cent, thereon.

To this petition'the defendant answered that “said revaluation arid appraisement was not duly and legally made, according to and in pursuance of the said lease and the statute in such case made and provided, as averred in said petition.” This is all the allegation of the answer.

The statute specifically points out the mode of appointment, the qualifications, and the duties of appraisers, and the rule which shall govern them in making the appraisement. The plaintiffs, in their petition, instead of stating the facts in regard to the appointment, qualifications, and doings of the appraisers, state that the premises were duly and legally appraised, according to the provisions of the statute. The defendant, instead of stating wherein the appraisement was invalid, alleges only that the premises were not duly and legally appraised.

The plaintiff made no objection to the answer, by motion, on the ground that it was indefinite and uncertain, but proceeded to trial; and after verdict and judgment pronounced against him on this issue, now, on error, objects, that the court below should have given him a judgment non obstante veredicto, inasmuch as the answer does not state facts sufficient to constitute a defense.

It is insisted, as an objection to the answer, that it tenders no specific issue, and that the plaintiff is not advised by it whether the alleged illegality of the appraisement consists in—

1st. An error in appointing the appraisers; or,

2d. A want of legal competency in any or either of them; or, ' '

3d. A failure to qualify; or,

4th. Appraising without view; or,

5th. Appraising by a different standard of value than that prescribed by the statute; or,

6th. Appraising in a different mode than that prescribed; or,

7th. That the appraisement was procured by fraud.

We agree with counsel that the answer does not disclose upon what illegality in the appraisement the defendant relies; though it is very clear, we think, that he insists upon its not having been madé in pursuance of the statute. The answer is, therefore, indefinite; and under section 118 of the code, which provides that “when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment,” the plaintiff could have compelled the defendant to state specifically in what particulars the appraisement was not duly and legally made.

The sufficiency of pleadings under the code, as to certainty, precision, definiteness and consistency of allegation, and indeed in respect of every other variety of defect of allegations which does not amount to such an absolute omission of fact as to constitute no ground of action or defense, must be taken advantage of or objected to by motion under the above provision of the code, and can afford no ground for demurrer or assignment of error.

But it is said, that for aught that appears, the allegation of the answer in this case is a mere legal deduction or conclusion of law; that pleadings must be construed most strongly against the pleader, and therefore it should be presumed that the non-conformity alleged as to the appraisement is not substantial but an immaterial, technical defect.

We suppose the common laiv rule as to the construction of pleadings under the code is entirely abrogated.

If pleadings shall be in ordinary language, as contra-distinguished from legal technical language, they must be construed as meaning what is generally understood by ordinary language, and hence there can be no established technical mode of stating a cause of action or defense. So, too, the rules of the common law, as to the sufficiency of pleadings, are abrogated, and in their place is substituted the few and simple rules of the code. Code, sec. 83. Whatever rules of common law pleading are in accordance with the rules of the code, they are still applicable to pleadings under the code; not, however, as common law rules, but as rules of the code. Thus the rules of common law pleading which illustrate and vindicate the law that the facts which constitute a cause of action shall be set forth in the declaration, may be applicable to a petition under the code. But the language to be used in stating the cause of action is prescribed by the code, and the common law rules in that respect are entirely inapplicable.

: ' If what, under common law pleadings, was denominated a legal deduction or conclusion of law, is alleged, it may or may not contain also a fact constituting a cause of action or defense, but if it does, and is indefinite and uncertain, the opposite party may, by motion, require it to be made definite by motion. He cannot demur, as at common law, nor object to the pleading on error. There may be mere abstract propositions or conclusions of law which contain no fact whatever. It is enough, however, for the present case, to say that the deduction, or conclusion of law, in the answer in this case, construed as ordinary language, does, in an indefinite manner, which the other party did not object to, put in issue the fact whether there was any valid appraisement made. The plaintiff having proceeded to trial, waived objections to its indefiniteness.

II. The court, upon submission of the case to them, found that “ the appraisers proceeded to and did appraise the said land, and embracing both leases as one body, and as worth so much per acre, in the aggregateand “ there being no proof that the several leased lots were of like value per acre,” the court ruled as law, “ that land held under different and distinct leases, should be appraised according to its distinct and separate value, under the statute.”

We do not agree with counsel for the defendant in error, as to the facts found by the court. We understand that it was an appraisement of the two tracts as one body of land, without any regard to its severalty, as originally leased. That the two lots, as a single tract or farm, might be more valuable than when severed, or less valuable, is very manifest — depending upon adjacent roads and the variety of soil, and other considerations, which will readily suggest themselves. The trustees are entitled to any enhanced value arising from the severance, and the lessee to the benefit of any enhanced value arising from the lots having been united into one farm. By an aggregate appraisement, the appraisers have overlooked this difference, and this relation of the lessors and lessee.

The statute, undoubtedly, intended separate appraisements. There is no appeal, or other mode of revising the award of appraisers. The statute, therefore, should be strictly followed in every particular wherein its violation would substantially change or affect the amount of the appraisement. We are of the opinion that the court below did not err in holding that the appraisement of the two tracts as one, and the appraisers determining their value as one entire tract, were not in accordance with the provisions of the statute. •

The judgment of the court below is affirmed.

Brinkerhopp, Scott and Sutlipp, JJ., concurred.


author: By the Court:

text:
    The Belmont County Branch of the State Bank of Ohio v. Price, Hilton et al.
    Motion for leave to file petition in error.
   By the Court:

The act passed April 8, 1858, “ to create the tenth common pleas district of Ohio, and to change the subdivisions of the third common pleas district” (55 O. L. 38), and the act “ to annex Lucas county to the first subdivision of the fourth judicial district of Ohio, and to provide for election of judges in the first subdivision of the fourth judicial district, and the second subdivision of the tenth judicial district,” passed April 12, 1858 (55 0. L. 76), must, being upon the same subject and passed at the same session, be construed together. These laws are prospective, in respect of the organization of the courts and the provision for judges under them, and do not operate, in those respects, until the second Tuesday of February, 1859; and, until that time, the jurisdiction of the judges remains unaffected by those laws.

Where, at the time a mortgage is executed, and as a part of the consideration and agreement for a loan, the mortgagee indorses upon the mortgage a stipulation, on his part, that “ the loan will not be called in so long as the mortgagor continues to punctually pay the interest semi-annually, and the value of the estate pledged shall be double the amount of the debt, until the expiration of two years after the service of a written notice stating the time when payment will be requiredsuch stipulation becomes a part of the mortgage contract, and, on petition to foreclose the mortgage against the assignee of the mortgagor, he'may insist upon the notice being given.

James Murray filed the motion.

Motion overruled.


text:
    Edmund B. Blunt v. Kinney, Espy & Co.
    Motion for leave to file petition in error to the Superior Court of Cincinnati.

      Taft $ Perry filed the motion.
   By the Court:

The act “ to relieve the district courts, and to give greater efficiency to the judicial system of the state,” passed April 12, 1858 (55 O. L. 81), in respect to a second trial of course, is not applicable to the superior court of Cincinnati.

Motion overruled.


text:
    Obediah J. Williams v. Thomas Willams’s Executor.
    Error to the Probate. Court of Jefferson county.
   By the Court:

Where the testator directed certain legacies to be paid by his executors, and devised certain lands to A., charged with the payment of the legacies and costs of administration, so far as funds might be needed by the executors for the payment of the same, and A. paid and took receipts from the legatees, and tendered the amount of costs of administration to the executors, exclusive of any per cent, on the legacies:

Woody § McCook, for plaintiff in error.

Stanton, Miller Sherrod, for defendants in error.

Held, that the executors were not entitled to an order for the sale of the premises, to pay a per cent, on the legacies. In such case the executors are not entitled to a per cent. Whether, however, seeing to the discharge of the legacies by the legatees, the executors performed extraordinary services not in the common course of duty, will be a matter for the consideration of the probate court on settlement.

Judgment below reversed and cause remanded.


text:
    M. Werk & Co. v. The Mad River Valley Branch of the State Bank of Ohio.
    W. & Co., of Cincinnati, being indebted to H. & Son, of Springfield, Ohio, forwarded to the latter, by mail, at their request, on Saturday, November 11, their check of that date, drawn on a Cincinnati bank, for the balance due. The check was received by H.'& Son, at Springfield, by due course of mail, on Monday morning, November 13; and was immediately negotiated, and mailed on the following day, at Springfield, by the holder, for Cincinnati, to be collected. It was received at Cincinnati, by couz’se of the mail, on Thursday morning, November 16, and presented for payment on the same day.
    Held: That there was not such want of reasonable diligence, in presenting the check for payment, as would discharge the drawers.
    In Error to the District Court of Clark county.

      The testimony, embodied in the bill of exceptions in this case, presents the following state of facts :
    M. Werk & Co., the plaintiffs in error, doing business in Cincinnati, had dealings with Harbaugh & Son, of Springfield, Ohio; and the usual course of their business transactions was such, that M. Werk & Co. made remittances, from time to time, in payment of balances due to Harbaugh & Son, in checks drawn on Cincinnati banks, and forwarded to Springfield by mail..
    In October, 1854, Plarbaugh & Son, by letter, advised Werk & Co. of a recent shipment of goods to the latter, and requested that the balance of the proceeds which might be found due, after deducting sundry bills, should be remitted to them by a check on some city hank. Werk & Co. accordingly, on Saturday, the 11th of November, 1854, forwarded by mail their check of that date, on the Mechanics and Traders’ Branch Bank of Cincinnati, for the said balance, amounting to $181.75, payable to the order of Harbaugh & Son. There were at that time two daily mails, each way, between Cincinnati and Springfield, excepting on Sundays.
    Harbaugh & Son received this check, by course of mail, on the forenoon of Monday, the 13th November, and immediately negotiated it to the defendant in error, a banking institution located in Springfield, by whose cashier it was mailed, on the next day, at Springfield, and forwarded to Cincinnati for collection. It was received at Cincinnati on the morning of Thursday, November 16th, and immediately presented for payment.
    The Mechanics and Traders’.Bank had suspended on Wednesday, the 15th November; and up to, and at that time, the drawers had funds in its hands to meet the check. On the refusal of payment, the check was regularly protested, and notice of its dishonor was forthwith given to the previous parties.
    Suit was thereupon instituted by defendant in error, as the holder of the check, against Werk & Co. as drawers, and Harbaugh. & Son as indorsers; and by the consideration of the district court, on the foregoing state of facts, the plaintiff below recovered judgment.
    The plaintiffs in error claim that the district court erred in rendering judgment against them; and that they were discharged from all liability, as drawers of said check, by the unreasonable delay of the subsequent parties in presenting the check for payment.

      Edward Woodruff, for plaintiff in error,
    cited Story on Prom. Notes, p. 660, sec. 490, note; p. 667, sec. 493 and note; p. 657, sec. 489 ; p. 661 and note; p. 664 and note; p. 673; p. 669, sec. 494, sec. 496; p. 672, sec. 498. Chitt. on Cont. 642; 11 Paige’s Rep. 612; Warwicke v. Noakes, Peake’s Rep. 67; 4 Bingh. Rep. 112; Mohawk Bank v. Broderick, 10 Wend. Rep. 304; Harker v. Anderson, 21 Wend. Rep. 372; 2 Parsons on Cont. 137; Story on Cont., sec. 980, p. 1088.

      Anthony $ Goode, for defendants in error,
    cited Story on Prom. Notes (3d ed.), p. 659, note 3; p. 667, sec. 493 and note; Chitt. on Bills (8th ed.) 246-8, 412, 416, 418, 420, 546-7; 5 Harr. Dig. 147; Smith’s Merc. L. 197, note; 3 Johns. Cas. 261; 13 Wend. 133.
   Scott, J.

The only question in the case is, was the defendant in error, or Harbaugh & Son, guilty of negligence, in the presentment of the check for payment ?

The general rule, in regard to the presentment of checks, is, that u the holder, in order to charge the drawer in case of a dishonor, is bound to present the same for payment, within a reasonable time, and to give notice thereof to the drawer, within like reasonable time; otherwise the delay is at his own peril.” What is a reasonable time, depends on the circumstances.

It is well settled, that if the payee or other holder of the check receives it immediately from the drawer, in the same town or city where it is payable, he is bound to present it for payment to the bank, at farthest, on the next succeeding secular day after it is received, before the close of the usual banking hours. But, under different circumstances, the rule is different. Where he receives the.check from the drawer, in a place distant from the place of payment, it will be sufficient for him to forward it, by the post, to some person at the latter place, on the next secular day after it is received; and the person to whom it is thus forwarded will not be bound to present it for payment until the day after it has reached him by the course of the post. Story on Prom. Notes, sec. 493.

The law merchant requires of the holder the exercise of reasonable diligence in the presentment of' a check for payment, in order to charge the drawer; but what is reasonable diligence, depends, says Justice Story, in many cases, upon the time, the mode and the place of receiving the check, and upon the relations of the parties between whom the question arises.”

The drawer has no right to complain of a delay, in presentment for payment, which was contemplated by the parties, and either expressly or impliedly assented to by himself, at the time of drawing the cheek. In Mohawk Bank v. Broderick, 10 Wend. 304, it was said by Chancellor Walworth, Bank checks are sometimes made and negotiated, for the avowed purpose of a temporary circulation;” and by way of illustration, he adds: * * * “ If I had purchased the check of the drawer, for the purpose of being sent to New Orleans, and to be negotiated there, and with his knowledge, he would then have assumed the risk of the solvency of the drawee, until the check was returned and presented for payment, according to the usual course of trade in such cases.” Hence, the circumstances of each case are necessary to be considered, as disclosiug the intention and understanding of the parties, or as showing a waiver by the drawer, of the right which he would otherwise have had, to require an early presentment.

Now, in this case, it is claimed for the plaintiff in error, that his depositing the check in the post office at Cincinnati, in pursuance of the request of Harbaugh & Son, was a virtual delivery of the cheel$: to them, in Cincinnati; and that, as it was payable in the same city, the rule of the law merchant required its presentment on the next secular day. But we do not think so.

It is true, that, for some purposes, the mailing of the check, at the request of the payees, might be regarded as a delivery of it to them. Its safe transmission might be at their risk. But whilst its loss was a possible contingency, of which the payees took the risk, by directing this mode of remittance, the delay .in presentment, created thereby, was a certain, unavoidable result, known to the drawers, and acquiesced in by them, because not objected to. They knew that Harbaugh & Son could do nothing toward presenting the check until it would reach them at Springfield by course of the mail. Until then, they could neither exercise diligence, nor be guilty of negligence, and the drawers had no right to require the one, or impute the other. ¥e think it clear, then, that the rights and obligations of the parties, in this case, are the same as though the check had been delivered, personally, by the drawers, to Harbaugh & Son, at Springfield, on the morning of the 13th November, when they received it by course of the mail.

Springfield is some eighty miles distant from Cincinnati, and this check was remitted, that the proceeds might be realized by Harbaugh & Son, at Springfield. Werk & Co. could not have expected the check to be returned to Cincinnati for payment sooner than reasonable diligence, in the usual course of business, would bring it there; and the law merchant required nothing more. Harbaugh & Son adopted the usual mode for the collection of the cheek, conforming, as well to the previous course of business between the parties, as to the ordinary course of business in cases of a like nature. The check was promptly negotiated to the defendant in error, immediately upon its receipt. It was mailed the next day for Cincinnati, where it was received on the morning of the 16th November, and presented the same day for payment. Under the circumstances, we think a higher degree of diligence could not reasonably have been expected by the drawers, and was not required by the rule before cited.

Judgment of the district court affirmed.

Swan, Brinkerhoee and Suture, JJ., concurred.


author: Sutliff, J. Swan and Brinkerhoff, JJ.,

text:
    John Kain v. The State of Ohio.
    In an indictment for murder, under the statute of this state, it is necessary to aver Van purpose to kill; such purpose being an essential element of the crime, as defined by the statute.
    An averment, merely, that the accused “purposely and of deliberate and premeditated malice, did strike, penetrate and wound ” the deceased, “giving to him * * * one mortal wound,” and that the deceased, “ of the mortal wound aforesaid, died,” is not sufficient; the “purpose ” being predicated of the assault and wounding, but not of the killing.

    Where the purpose to kill is not averred in the stating part of the indictment, the defect is not’eured by the formal concluding part, in which it is averred: “ And so the jurors * * * * do say, that ” the accused, “ in the manner and by the means aforesaid,” * * * “purposely and of deliberate and premeditated malice, did MU and murder ” the deceased. Such averment being of a conclusion of law, and not of the existence of facts. And although indictments may have been occasionally drawn in the common law form since the change in the statutory crime of murder in this stale, by introducing the word “purposely” in the existing statute, such practice has not been uniform, and has never been approved by this court in any adjudication upon the question presented for consideration.
    The decision of the case of Jonas Fonts v. The State, reported in this volume, p. 98, approved and followed.
    This is a writ of error to the court of common pleas of Hamilton county.

      The case is stated in the opinion of the court.

      II. JB. Carrington, for plaintiff in error.

      C. P. Wolcott, attorney general, for tire state.
   Sutliff, J.

At the May term, 1856, of the court of common pleas of Hamilton county, the plaintiff in error was convicted of murder in the second degree, and judgment of perpetual imprisonment was pronounced against him. He now asks that this judgment may be reversed for alleged error in the record.

It is alleged for error, that the offense of murder in either the first or second degree is not in fact charged against him in the indictment; and that the judgment is, for that cause, erroneous. The following is the language of the indictment containing the charge, to which the assignment of error relates:

That the said John. Kain, with the leaden bullet aforesaid, out of the pistol aforesaid, by the said John Kain discharged and shot off, as aforesaid, then and there purposely and of deliberate and premeditated malice, did strike, prostrate and wound him the said Richard Singleton, in upon the back part of the head of him the said Richard Singleton, giving to him, the said Richard Singleton, then and there, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said John Kain, in upon the aforesaid back part of the head of him, the said Richard Singleton, one mortal wound of the length of half an inch, and of the breadth of half an inch, and of the depth of four inches; of which said mortal wound the said Richard Singleton, from the said twenty-seventh day of April, in the year eighteen hundred and fifty-six, until the thirtieth day of the same month of April, in the year last aforesaid, at the county of Hamilton aforesaid, did languish, and, languishing, did live, on which said thirtieth day of April, in the year- last aforesaid, the said Richard Singleton, at the county of Hamilton aforesaid, of the mortal wound aforesaid, died.........And so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say, that the said John Kain,.....him the said Richard Singleton, in the manner and by the means aforesaid, at the county of Hamilton aforesaid, purposely and of deliberate and premeditated malice, did kill and murder; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

Tfie indictment is predicated upon sections one and two of the act for the punishment of crimes,” passed March 7, 1835. It is provided by sections one and two of that act as follows:

See. 1. That if any person shall purposely, and of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery or burglary, or by administering poison, or causing the same to be done, kill another, every such person shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death.
Sec. 2. That if any person shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree, and on conviction thereof shall be imprisoned in the penitentiary and kept at hard labor during life.”

The conviction and judgment were under the second section.

Each of the above mentioned sections, it is seen, contains the word “ purposely ” as qualifying and characterizing the offense of killing.

The objection urged to the indictment in this case is, that the accused is not thereby charged with having purposely killed,” but with only having purposely'inflicted the wound from which death ensued.

An inspection df the record shows the fact of such omission on the part of the pleader to charge the accused with having purposely killed.

The language of the statute, upon which the judgment was entered, is as follows: “ That if any person shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be guilty,” etc., and providing that such judgment as rendered in this case shall thereupon, on conviction, be pronounced.

Does the language of the indictment express the offense so described by the statute ? If so, the same statute describing the offense, has prescribed the judgment rendered, and there is no error; otherwise there is, as it is only on conviction of the offense so described by the statute that such judgment is authorized.

The following is the language of the indictment in this particular part of the description of the offense, to which the objection of the plaintiff in error is urged: “ That the said John Kain,” etc., . . . . “ then and there, purposely and of deliberate and premeditated malice, did strike, prostrate and wound, him, the said Richard Singleton, in upon the back part of the head,” etc.; whereof, it it is charged, the said Singleton died. But it is not charged that the accused so purposely . . . did strike the said Singleton, purposely or with the intent him the said Richard Singleton thereby to kill. Nor are there any words in the indictment charging that the accused did thereby purposely kill the said Singleton.

It is urged, however, in support of this indictment, that it is in the prescribed and approved form of an indictment charging the common law crime of murder; and that similar forms of indictment are to be occasionally found in the records, and even in reported cases in this state, and which have been heretofore sustained by the' Supreme Court.

The indictment, it is true, appears to be framed after approved and prescribed precedents for charging the common law crime of murder; and the indictment would, unquestionably, be sufficient in this case, if our statutory description of the crime of murder were identical with the common law definition of the crime.

But it is not. The common law description of the crime of murder, as expressed by Sir Edward Coke, is as follows: “ Where a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king’s peace, with malice aforethought, either express or implied.” It lacks that essential requisite of “purposely” killing, required by our statute to constitute murder in this state. Hence, it does not follow that because the indictment is sufficient and in proper form to charge the crime of murder at common law, that, therefore, it is sufficient to charge the statutory crime of murder in Ohio. But, when it is seen, as it appears by comparing the common law description of the crime with our statutory definition, that they are different; that the statutory crime contains an essential ingredient not contained in the common law, it would seem rather to follow that the common law form of indictment is insufficient to charge the statutory crime of murder in this state. By referring to the several statutes defining the crime of murder, heretofore enacted, both under the territorial and state governments, it will be perceived that previous to 1815, the word “ purposely ” was not used in our statutory definition of murder. The first statute enacted upon the subject is that of the territorial legislature of September 6, 1788, providing as follows:

“ That if any person or persons shall, with malice aforethought, kill or slay another person, he, she or they, so offending, shall be deemed guilty of murder, and upon conviction thereof shall suffer the pains of death.”

On the 15th day of January,, 1805, that statute was repealed, and one was enacted by the general assembly of the state, in the following language:

That if any person of sound memory and discretion, shall unlawfully kill any human being, and in the public peace, with malice aforethought, either express or implied, and being thereof legally convicted, shall suffer death.”

By the act of 17th of February, 1809, this statute of 1805 was repealed, but re-enacted in the same language; and continued in force until repealed by the act of January 27, 1815. By that act, the legislature provided as follows :

“ That if any person shall purposely, of deliberated malice, or in the perpetration or attempt to-perpetrate any rape, arson, robbery or burglary, kill another, every such person, his or her aiders,--abettors, counselors and procurers, shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death.”

The same act also provided for the punishment of murder in the second degree, inserting in like manner, for the first time, in the description of that crime, the word “purposely,” as follows:

“ That if any person shall, purposely and maliciously, but without deliberation and premeditated malice, kill another, every such person, his or her aiders and abettors, shall be deemed guilty of murder in the second degree, and upon conviction thereof, shall be imprisoned and kept at hard labor not more than twenty-one years, nor less than seven years.”

This act of 1815, was repealed and succeeded by the act of February 26, 1824, which provides as follows:

“ Sec. 1. That if any person shall purposely, of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery, or burglary, kill another, every such person shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death.
“ Sec. 2. That if any person shall purposely and maliciously, but without deliberate and premeditated malice, kill another, every such person shall be deemed guilty of murder in the second degree, and on conviction thereof shall be imprisoned in the penitentiary and kept at hard labor during life.”

These sections were repealed and re-enacted in the same language by the act of March 3,1831, and from that time continued in force until March 7, 1835, when the same were repealed, and succeeded by the statute under which the indictment under consideration was framed.

It is evident, from this view of the several statutes heretofore enacted, that such a form of indictment as this was sufficient, and the proper form previous to the statute of 1815. By that statute, for reasons satisfactory to the legislature, it was made essential to constitute the statutory offense of murder that the perpetrator should purposely kill.

The general rule applicable to criminal pleadings, requires that a crime defined by statute should be charged in the indictment substantially in the language of the statute.

The statute of Pennsylvania, of 1794, classified the different kinds of murder as existing at common law in that state, into two classes, specifying what kinds should constitute murder of the first degree, and mitigating the common law penalty of death, existing also in that state, to imprisonment as to all murders except those of the first class; and also providing that if the jury found the accused guilty of murder, they should ascertain, by their verdict, whether the murder was of the first or second degree. Under this statute the supreme court of that state has held it necessary to so far vary the form of the indictment for murder of th.Q first degree as to show the murder to belong to that class, in order to authorize a sentence of death, where the jury had neglected to ascertain by their verdict the murder to be of the first degree. Johnson v. The Commonwealth, 24 Penn. St. Rep. 386.

The indictment, in that case, was in the common law form, except the conclusion, which is not given by the reporter. The killing was not ascertained by the verdict of the jury to be a murder of the first degree, as it would have been if the record, either by the special finding of the jury, or by their general finding upon the indictment, had shown the killing to have been willful, deliberate and premeditated. The indictment, in that case, as in this, failed to charge, in the body of the indictment, that the accused intended to kill, or that the killing was willful, deliberate or premeditated.

After the jury had found “the defendant guilty in manner and form as he stands indicted,” a motion in arrest of judgment was filed on his behalf, for that the jury had not in their verdict ascertained whether the murder was of the first or second degree, as required by the 2d section of the act of 22d April, 1794. The provision of that section is that the jury, “if they find such person guilty thereof, shall ascertain in their verdict, whether it be murder of the first or second degree.” The conviction, under a charge of murder in that state, might, of course, be, as under our statute, for murder in either degree, and hence the necessity of the jury specifying, if they found the accused dguilty of murder in the first degree. But inasmuch as the jury did not find, by their verdict, that the killing was willful, etc., or “ascertain in their verdict,” in the language of the statute, that the murder was of the first degree, it is not to be presumed that the prosecution demanded, or that the court would award a sentence for mux;der in the first degree; unless in the absence of its being so ascertained by the verdict, it was at least ■denominated in some part of the indictment, a willful, premeditated killing, or a murder of the first degree, and so found by a general verdict. There is no doubt, therefore, that the prosecution and the court before which Johnson was tried, relied upon the averments in the conclusion of that indictment, as charging a murder in the first degree. The conclusion of that indictment is not given in the report; but it doubtless concluded like this, in the usual form, “and so the jurors aforesaid, upon their oaths, etc., do say, etc., that, etc., the said Samuel Johnson, etc., did willfully, etc., kill and murder,” etc. But the coui’t overruled the motion in arrest, and passed sentence of death upon the accused.

It was assigned for error that the court erred in passing sentence of death, it not being warranted by the verdict. Chief Justice Lewis, in pronouncing the judgment of the supreme court in that case, made use of the following language as to the statutory classification of the crime, as applicable to that ease: “A premeditated intention to destroy life is an indispensable ingredient in that offense,” (murder in the first degree.) “The clear and positive provisions of the act of 1794, fix the interpretation beyond a doubt. We have seen that the indictment is destitute of the averments required by the statute to constitute murder of the first degree.” And that court were unanimous in reversing the sentence.

And yet we are told, in view of the express provisions of that statute of 1794, and as I think the clear and positive words of condemnation expressed by the supreme court in that ease against the indictment, that the case has no relation to the present one, and that the indictment under that statute in Pennsylvania is framed precisely as at common law, and that it is from the verdict of the jury that it is to be ascertained whether it is a murder of the first or second degree. It seems to me, however, that case has a relation to the present in this: the jury having neglected' to determine by their verdict, in accordance with section two of their statute, the fact of its being a murder of the first degree, but rendering just such a verdict as rendered in this state, to wit, “guilty in manner and form as he stands charged in the indictment,” the indictment was, then, in that case, held insufficient. But the jury failing to find specially, as directed by section two of that act, the fact of its being a murder of the first degree, and simply finding him guilty as charged in the indictment,” it presented precisely the same question presented in this case, to wit, whether the indictment itself sufficiently charged the crime for which the accused had been sentenced. And the court held it did not, for the reason that, in the language of the court, it was “ destitute of the averments required by the statute to constitute murder of the first degree.”

It is true, the supreme court of Pennsylvania has held that under the act of 1794, an indictment in the common law foi’m, with the special finding of the jury, as prescribed by section two of the act, that the murder was of the first class was sufficient. But why? Not that the indictment in the common law form could possibly be sufficient to charge a statutory offense differing in any essential particular from the common law offense, but because the crime of murder in that state was not, as in this, created by statute. The crime of murder, in Pennsylvania, previous to the statute of 1794, was a common law crime; and so it was held to continue a crime at common law, and that the statute only specified what kinds of murder should be classified togethei*, and, as before stated, mitigated the common law punishment of death, (which also obtained in that state independent of the statute,) as to all kinds of murder not falling in the first class. In that state, the crime remaining a common law offense, is of course sufficiently described by the common law form of indictment; and if the jury had found specially, under the 2d section of their statute, that the murder was of the first degree, the statute would be complied with, and the verdict would of course make a perfect record and sustain a sentence. But if the indictment in the case of Johnson had charged the murder to be willful, deliberate and premeditated, and tbe jury bad then neglected, as they did, to find it to be murder of the first degree, still, their verdict of guilty, “ as charged in tbe indictment,” would then have been good, and tbe sentence would not bave been reversed. "When, therefore, it is considered that we bave no statute requiring tbe jury to find specially that tbe killing was intentional; and also that tbe crime of murder does not exist at common law in this state, but is solely dependent upon our statute, by which it is defined and alone exists, it is evident that tbe statutory offense in this state must be charged in strict conformity with tbe statute. Indeed, as soon as it is stated that no part of tbe crime of murder is statutory in Pennsylvania, but entirely a common law offense, and that tbe crime in this state is entirely a statutory offense, and it being admitted that tbe purpose to kill is made, by tbe statute, an essential ingredient of tbe crime, it is obviously as necessary for tbe “purpose” to be charged in tbe indictment in this state, as it is that malice, or any other essential constituent part of tbe crime of murder at common law, should be charged in tbe indictment in Pennsylvania.

Erom tbe brief review of tbe early statutes of this state, we at once perceive bow this form of an indictment (which was tbe proper form under each of tbe several statutes, defining tbe crime of murder in this state, previous to that of 1815) should bave still occasionally continued in use.

Safety in pleading requires respect, and even adherence to be generally given to approved precedents. A crime of so great enormity as that of murder, in most of tbe counties of this state, has been of very rare occurrence. There are comparatively few forms of indictment for tbe offense, to be found in tbe records of this state, which bave passed before tbe supreme court, and been approved by that court. It is not singular that tbe few forms thus found in tbe reported cases, and in tbe records of tbe supreme court on the'circuit, and sustained by tbe court, should have been regarded by the pleader occasionally as safe precedents, without having reflected that the change in the statute of 1815 rendered such precedents defective.

The effect of the change in our criminal statute in this particular, has been a realization, in this case, of the inconvenience, urged at all times against changes in the description, by the statute, of common law offenses — a loss of the benefit of well established precedents in administering the law.

But the legislature having seen fit, for the benefits which they regarded more than compensatory for such inconvenience, to make the statutory change in the description of the crime of murder, we have only to accept and pass upon the statute as enacted and governing the proceedings in this case. The policy of such frequent changes in the criminal statutes of the state belongs exclusively to the consideration of the legislature. It is only the fact of such statutory change of our criminal statutes, that comes properly before us for consideration.

It is however urged that, in this case, the alleged error may be considered cured by the expression in the conclusion of the indictment: “ And so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say that the said John Kain,” etc., “him the said Richard Singleton, in the manner and hy the means aforesaid, purposely, and of premeditated malice, did kill and murder, contrary to the form of the statute, and against the peace and dignity of the State of Ohio.”

But this concluding averment in the indictment is nothing but an averment of a legal conclusion, and cannot be received as adding anything to the facts already charged, and from which alone the conclusion is professedly deduced, thus: “And so the jurors,” etc., “ do say that the said John Kain,” etc., “ in the manner aforesaid, at the county aforesaid,” etc., “ purposely, and of deliberate and premeditated malice, did kill and murder.” What more, or less, could be regarded as meant by the expression, <e And so the jurors do say,” than this: that from the facts so hereinbefore charged, they have come to the conclusion that the defendant is guilty, in the words of the statute, to wit, of purposely killing and murdering ? But what are the facts thereinbefore charged ? Certainly, if this were now presented as a new question, instead of one to be determined by long-established precedent and authority, I apprehend every lawyer, having respect to the rules of pleading, would arrive at the same conclusion — that if the offense is defectively charged, in the charging part of the indictment, the defect cannot be regarded as cured by this concluding averment. When we recur to the offense charged, and the averments of the indictment from which the conclusion is so expressed, that Kain did purposely kill and murder, we find that the jurors do not charge, that in making the assault, or in the infliction of the wound, Kain purposed or intended to kill, but only that he purposely discharged the pistol at the said Singleton; and from such statement of the facts, as so charged, their conclusion that Kain purposely did kill, is a non sequituf. It is a conclusion which doe snot necessarily follow from all the facts and averments found and charged against the accused.

■ Thus, it seems to me, that if this were a new question, and now for the first time presented for adjudication, whether such defective charge of an offense in an indictment could be regarded as cured by the concluding averment, “And so the jurors do say,” etc., we should unhesitatingly decide that it could not. Elementary writers upon the subject inform us, that while the general rules and principles of pleading, with respect to the structure of declarations in civil actions, are applicable to indictments, a greater degree of certainty in the application of the rules obtains with regard to indictments, and a degree of strictness is required in an indictment, which is not always necessary in a declaration. The charge in the indictment must contain a certain description of the crime, and a statement of the facts constituting the offense. An indict-meat, it is said, ought to be certain to every intent, and without any intendment to the contrary. Lord Mansfield and other eminent judges have insisted, that to say that an indictment ought to have the same certainty as a declaration, and that the rules applicable to civil pleadings are applicable to criminal accusations, does not sufficiently express the degree of precision required, as technical objections are much more frequently admitted to prevail in criminal than in civil proceedings. And yet, in a declaration, it would not be pretended that a cause of action defectively stated, could be cured by the usual conclusion: Ci And so the plaintiff' saith that he is injured, and hath sustained damage to the amount of $-, and ought to have and recover the same of the defendant; and therefore brings suit,” etc. Such a conclusion is never regarded as adding anything to the preceding averments in the declaration, expressing the real cause of action relied upon for a recovery. And by rules of pleading, as well as in reason, much less should the concluding averments of an indictment cure a defect in the description and charge of the exime, as therein set forth and stated. Indeed, so little importance is attached to the office of the conclusion of an indictment in describing the offense, that neither time nor place is ever required to be alleged as to any averments contained therein. And yet it never is allowable to dispense with either time or place, in the charge and description of the offense relied upon by the prosecution, as expressed in the indictment.

But, I apprehend, the precedents and authorities will be found upon this question nearly uniform, as expressed by the earliest English reported cases, and pretty uniformly followed, as well by the American courts, as by their own, down to the present time. And in view of these authorities, which are extensively referred to, it is laid down by Mr. Archbold in his Summary of Pleading and Evidence, page 55, that “ Every fact and circumstance stated in the indictment must be laid positively, that is, the indictment must directly affirm that the defendant did so and so, or that such a fact happened under such and such circumstances,” etc. So, in the case of King v. Cox, Leach. Cro. Law 82, it was held by all the judges, that to describe the statutory offense of perjury on the 5th Eliz. C. 9, in which the word “ willfully ” was used, a charge and description of the offense that the accused had “falsely, maliciously, toickedly and corruptly sworn,” etc., although good and sufficient to charge the common law offense of perjury, was insufficient; inasmuch as the word “ willfully is made essential by the statute. In 2 Hawk. P. C. 342, the rule is thus expressed: “I take it for a general rule, that unless the statute be recited, neither the words contra formam statuti, nor any periphrasis, intendment or conclusion, will make good an indictment which does not bring the fact prohibited or commanded, in the doing or not doing whereof the offense consists, within all the material words of the statute.”

T.o apply that rule to this case: The statute here requires, to constitute the crime of murder, not only the shooting to have been fatal, but that it should be done with the intention to kill. Tet while the indictment charges the act to be done with all the other attendant requisites and circumstances, it has omitted this essential one; and the averments in the conclusion do not repeat the charge, or attempt to renew it. If, indeed, all the averments contained in-the conclusion were taken together, and stood transposed into the body of the indictment, they would still be insufficient to supply the defect. Eor, although containing the word purposely, the conclusion does not contain'the necessary averments of the time,- place and manner of perpetrating the crime necessary to constitute a perfect charge in an indictment.

The general rule of pleading as to the statement of the offense in the indictment, as expressed by Mr. ‘Archbold, is, that all the material facts and circumstances comprised in the definition of the offense, whether by a rule of tbe common law or by statute, must be stated; if any one material fact or circumstance be omitted, tbe indictment will be bad.” A material ingredient, and one necessary to constitute tbe statutory crime of murder in this state, is evidently wanting in tbe attempted statement and charge of the crime in this indictment; and this defect, as we have seen, cannot in fact be cured by any averments expressed in the conclusion of an indictment, without a disregard of well established rules of criminal pleading. And even if such disregard of rule were allowable in any case, in the present instance it could not avail to cure the defect in the indictment, for the reason that the averments in the conclusion of the indictment are, of themselves, insufficient to cure such defect in the description and charge of the crime.

But it is said, as a reason against holding indictments ,of this kind insufficient in law, that there have doubtless been convictions and sentences carried into execution upon such indictments, since the word “purposely” has been so made essential by the statute of this state to the correctly charging the crime of murder. If this be so, and if previous errors have to some extent obtained under the change of our statute, owing to the fact of attention not having been directed to the subject, it would be but a poor reparation for such past, errors to knowingly suffer their continuance in future, when specially pointed out and a correction of the errors asked of the court by a party aggrieved. The maxim communis error facit jus, should certainly have no application to such a case, even if the error had obtained much more extensively than it can possibly be supposed to have done.

But it is unnecessary to add, more than to say, we think this case falls clearly within the holding of the court in the ease of Jonas Fouts v. The State, reported in this volume, p. 98. This question, in that case, came for the first time before this court for their opinion, being specially presented by that record, as it is here presented. A majority of the court, in that case, after a careful examination of the subject, came to the conclusion that to constitute a valid charge of murder under the statute upon which this indictment is framed, it is indispensably necessary that the accused should be charged in the indictment with having purposely committed the homicide. The same doctrine has since been affirmed by a majority of the court in the cases of Loeffner v. The State, incidentally; and in the case of Robbins v. The State, in which the question was again directly presented. In the opinion, by the Chief Justice, given in that case, the whole subject has been treated, and the reasons and conclusions of the majority of the court have been very fully and ably presented.

. We think it unnecessary, therefore, to here, in conclusion, add, more than to say, that, regarding this case as coming clearly within the rule so laid down and maintained by this court in the cases referred to, it is the opinion of a majority of the court, that the indictment presented by the record in this case is defective in not charging the homicide to have been purposely committed; and that the court of common pleas erred in pronouncing judgment upon the verdict of guilty, returned thereon.

The judgment of the court of common pleas must, therefore, be reversed; and the prisoner will be remanded to Hamilton county for a new trial, which is ordered in the case.

Bartley, C. J., and Scott, J., concurred.

Swan and Brinkerhoff, JJ.,

dissented, holding that the purpose to kill is a necessary ingredient of murder in the first and second degree, and must be alleged and proved; and that the indictments in this case and the case of Fouts v. The State, conform, in this respect, to the practice and precedents of indictments for murder in this state; and to indictments which, upon specific assignment of error, as “informal and unsubstantial” have been pronounced by this court as “ sufficient.” Moore v. The State, 2 Ohio St. Rep. 502, 507.


author: Sutliff, J.

text:
    Robert K. Enos v. John Aylesworth.
    Where, in the indorsement upon a writ of capias ad respondendum sued out in an action of debt brought on the record of a judgment, the judgment is slated to be $1,200 damages and $80 costs, “ amount sworn to be due $1,280,” etc.; whereas the judgment was for $1,236.94 damages, and $43.06 costs, — damages and costs $1,280 — it is no defense to an action brought on the recognizance of special bail entered in the original action, that after the recognizance was entered into, the court, under the statute of amendment of March 12, 1845, permitted the plaintiff to amend the indorsement on the writ, as to the amount of the judgment for damages and costs, so as to correspond with the fact and the declaration ; the amendment not changing the cause of action, but only its description. Nor is it a defense to such action on the recognizance that it does not appear to have been entered into upon the first or second day of the appearance term.
    In Error to the District Court of Wayne county.
    The record shows the following state of facts:
    On the 15th day of December, 1852, the plaintiff caused one Aaron Lytle to be arrested upon a writ of capias ad respondendum sued out of the court of common pleas of Wayne county.
    The plaintiff’s affidavit, upon which the capias issued, stated that Lytle was indebted to him “ in the sum of twelve hundred and eighty dollars upon a certain judgment rendered in favor of deponent and against said Aaron Lytle, by the circuit court of the county of Porter, in the State of Indiana, at the September term thereof, A. D. 1852,” etc.
    The writ was indorsed: “ Debt $1280, damages $1000. Suit brought on a certain judgment of the 'circuit court of the county of Porter, and State of Indiana, rendered by said circuit court at the September term thereof, 1852, in favor of said Robert Enos, and against said Aaron Lytle, for tke sum of $1200 damages, and $80 costs of suit; amount sworn to as due $1280. Hold to bail in tke sum of $2400.”
    At tke Marck term, 1853, of said court of common pleas of "Wayne county, tke writ was returned by tke skeriff indorsed: “ December 15, 1852. I kave taken tke witkin named Aaron Lytle, and ke is now in custody. Jokn Becktel, skeriff W. C.”
    Tke skeriff, also, on tke first day of said term of tke common pleas, returned, witk tke writ, a bond, a copy of wkick is in tke words and figures following:
    “ Know all men by these presents, that we, Aaron Lytle and John Aylesworth, are held and firmly bound unto John Bechtel, sheriff of the county of Wayne, in the State of Ohio, in the sum of twenty-four hundred dollars, to be paid to the said sheriff, his executors, administrators or assigns, for which payment well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors and administrators. Sealed with our seals, and dated this 15th day of December, A. D. 1852. The condition of the above obligation is such that if the above bound Aaron Lytle do appear before the court of common pleas of the county of Wayne, State of Ohio, at the court house in said county, on the first day of the next term, or on the succeeding day, to answer unto Robert K. Enos in a plea of debt — debt $1280, damages $1000 — then this obligation to be void; otherwise in full force and virtue in law.
    “AARON LYTLE, [l. s.]
    “JOHN AYLESWORTH, [l. s.]”
    .Anri afterward, during tke same term of tke court, a journal entry was made in tke cause, in tke words and figures following:
    “ This day personally appeared in open court, Aaron Lytle and John Aylesworth, and severally acknowledged themselves to owe unto the said R. K. Enos the sum of ticenty-fmr hundred dollars, to be levied on their several goods and chattels, lands, tenements and estates, upon condition that if the defendant, Aaron Lytle, shall be condemned in this action, at the suit of R. K. Enos, the plaintiff, he shall pay the costs and condemnation of the court, or be rendered, or render himself into the custody of the sheriff of said county for the same; or, in case of failure, that the said John Aylesworth will pay the costs and condemnation for him.” And cause continued
    In tke declaration, tke cause of action was described differently from tke indorsement on tke writ, in tkis, tkat tke declaration describes tke judgment as kaving been rendered “ for the sum of twelve hundred and thirty-six dollars and ninety-four cents damages, besides the costs and charges, * * * * * which * * * amount to a large sum, to wit, twelve hundred and eighty dollars.”
    The defendant pleaded the variance, in abatement. The plaintiff filed a motion to strike the plea from the files; but at the September term this motion was overruled by the court, and the plea was sustained, and leave given the plaintiff to amend his writ, so as to make the indorsement of the description of the judgment sued upon conform to the declaration; and the amendment was so made.
    At the April term, 1854, the case being at issue, was submitted to the court, and a judgment rendered in favor of the plaintiff' against Lytle for the sum of $1243.87 debt, and $117.33 damages, and costs of suit.
    On the 19th day of July, 1854, a capias ad satisfaciendum was issued upon said judgment to the sheriff'of the county, and the same was by him duly returned, as follows: “ The within named Aaron Lytle is not found in my county. July 24, 1854. Jno. Bechtel, sheriff W.C. 0.”
    Thereupon the plaintiff commenced a suit, at the December term of said court of common pleas, against the defendant, upon his recognizance of special bail.
    The petition sets forth the recognizance, the judgment, the issuing of the capias ad satisfaciendum, and said return of the sheriff’, and seeks to recover the amount of the judgment and interest.
    The defendant, in his answer, insists that said recognizance is invalid—
    1st. For that it does not appear to have been entered into on the first or second day of the term.
    2d. That the same, if valid when entered into, ceased to be so, upon the amendment of the writ, by reason of such amendment.
    The district court, on appeal and submission, at its June term, 1855, found, upon the facts stated, in favor of Aylesworth and against the plaintiff.

      Thereupon the plaintiff moved for a new trial, on the ground that the finding of the court was against the evidence, and contrary to law. This motion was overruled, and judgment entered on the finding of the court.
    To reverse that judgment the plaintiff prosecutes this proceeding in error.

      Given £ Jeffries, for plaintiff, insisted—
    That the court had power to amend the original writ, and cited the 1st section of the act of March 12, 1845, 43 O. L. 114; and also the following cases, under similar statutes: 19 Wend. Rep. 99; 6 Hill’s Rep. 377; 1 Cow. Rep. 203; 13 How. Pr. Rep. 466; 14 Pick. Rep. 223; 13 Metc. Rep. 215, 476; 2 Cush. Rep. 486, 555; 1 Carter’s (Ind.) Rep. 17; 3 Porter’s (Ind.) Rep. 216; 5 Porter’s Rep. 192; 6 Porter’s Rep. 397; 8 Blackf. Rep. 5.
    That the amendment did not discharge the special bail from liability upon his recognizance, and cited 1 Cow. Rep. 601, 203; 3 Cow. Rep. 354; 4 Cow. Rep. 41; 7 Cow. Rep. 524; 1 Bingh. Rep. 68; 19 Johns. Rep. 173.
    That it is not for the defendant to object to the proceedings against him because there may have been errors committed in the proceedings against Lytle. 4 Blackf. Rep. 511; 7 Cow. Rep. 524; 16 Johns. Rep. 117; 9 Wend. Rep. 237; 1 Hill’s Rep. 346.

      John McSweeney, for defendant, insisted—
    That whether it was in the power of the court or not, to permit the amendment of the writ, the fact that it was amended, eo instanti released Lytle on common bail, and deprived defendant of any rights, by way of bail piece or otherwise, over the person of Lytle.
    That without the amendment of the writ, the filing of a declaration for a cause of action different from that specified on the writ, was, itself, a discharge on common bail. 1 Chit. Pl. 253; 1 Swan’s Pr. & Prec. 130, and authorities there cited; 7 Term Rep. 80; 6 Term Rep. 365; 13 East’s Rep. 273.
   Sutliff, J.

The original suit, in wbicb. the defendant became special bail, was commenced under and is governed by tbe act of June 1st, 1831, “to regulate tbe practice of judicial courts.” Tbe 9th section of that act provides that special bail shall be filed on tbe return day of tbe capias ad respondendum, or on tbe succeeding day; and it is provided by tbe 10th section, that if special bail be not put in and perfected in due time, tbe plaintiff may proceed upon tbe bail bond or rule tbe sheriff to bring in the body of tbe defendant.

It is true that it does not appear in this case that tbe special bail was entered within tbe time limited by tbe statute; but we do not think it is competent for tbe bail to object to tbe validity of tbe recognizance entered into, that by tbe favor of tbe plaintiff, tbe same was accepted at a later day in tbe term than be was by law obliged to suffer special bail to be of course entered. Indeed the statute is only directory, and it was always competent for tbe court, in their discretion, upon good cause shown, to suffer special bail to be put in at any time during tbe term at wbicb tbe capias ad respondendum was returned. And such is said to be tbe rule in tbe King’s Bench: “ Though tbe bail be put in tbe last day of tbe term, and tbe bill be put in at any time tbe same term, this is well enough by tbe course of that court.” See Roll. Abr. 333 ; Cro. Jac. 384; Bac. Abr. Bail. C.; 1 Tidd. Pr. (9th ed.) 279.

Tbe return day, or tbe day succeeding, is tbe limit only to tbe right of tbe defendant to put in special bail, of course. If tbe plaintiff insist upon this limitation of time, be may, in default of special bail having been entered within tbe rule, accept an assignment of tbe bail bond to tbe sheriff, and commence suit thereon; or be may, on motion, obtain a rule of court that tbe sheriff bring in tbe body of tbe defendant within tbe term. Tbe statute further provides that if tbe sheriff shall cause special bail to be put in, and justified if required, during the term, be shall be excused from bringing in tbe body. But if tbe sheriff brought in the defendant, he was thereupon committed. And being so committed, or in custody, the defendant, .by leave of court, might put in special bail at any time, even after verdict or judgment; and before a capias ad satisfaciendum had been issued. Parker v. Turner, 2 Chitt. Rep. 71; 18 Eng. Com. Law Rep. 253.

The other objection urged by defendant’s counsel to the right of recovery against the special bail, is the amendment of the original writ. It is insisted by counsel, that after the filing of the declaration in the original action, the bail, on motion to the court, would have been entitled to an exoneretur for the apparent variance between the cause of action indorsed on the writ and that set out in the declaration.

The court, by overruling plaintiff’s motion to strike the defendant’s plea in abatement from the files, may perhaps be understood to have expressed thereby an opinion in favor of its sufficiency; and if the writ had remained without amendment, the defendant, it would seem, upon his application to the court before judgment, might have obtained his exoneration. Eor it has long been recognized by the courts, as a general rule, that when a plea in abatement would be sustained to a writ upon which the defendant has given special bail, he ought to be discharged on common bail. But that rule is not conclusive of the question in this case. If the conditional undertaking of the defendant had become absolute, he was liable in the action against him on the undertaking, otherwise not. The terms of that undertaking were, that if the defendant, Aaron Lytle, should be condemned in that action of the plaintiff1 against him, he should pay the costs and condemnation of the court, or render himself into the custody of the sheriff for the same; or, in default of his so doing, that he, Aylesworth, would pay the costs and condemnation for him. A judgment was rendered against Lytle in that action for $1,361.20, debt, damages and costs, and the defendant failed either to pay the same or render himself into the custody of the sheriff'. These facts are shown by the record and the return of the sheriff'. It is not pretended that the defendant in fact obtained, or ever asked for an exoneration from his undertaking as bail. His defense, therefore, rested solely upon the proposition that Aaron Lytle was not in fact condemned in the action in which the defendant became special bail, but that the judgment so rendered in the case was upon a different cause of action from that in which the defendant so became bail.

The original writ commanded the sheriff to take the said Lytle and have him at the first day of the next term, etc., “to answer unto Robert K. Enos, in a plea of debt— debt $1280, damage $1000,” etc. On the writ was indorsed as follows: “ Suit brought on a certain judgment of the circuit court of the county of Porter, and state of Indiana, rendered by said circuit court at the September term thereof, A. U. 1852, in favor of said Robert K. Enos, and against said Aaron Lytle, for the sum of $1200 damages, and $80 costs of suit; amount sworn to as due, $1280. Hold to bail in the sum of $2400.”

The declaration was upon a judgment rendered by the same court, at the same time, between the same parties, and for precisely the same amount; the only variance being in this, that the declaration described the part of the judgment for damage as being $1236.94, leaving that part of the judgment rendered for costs only $43.06, instead of $1200 damages, and $80 costs; not varying, however, in the aggregate amount, the judgment sued upon and sought to be recovered from the defendant. "We think this a variance in the description rather than of the cause of the action expressed by the original writ.

The undertaking of special bail in the recognizance set forth in the record, is substantially the same in its terms with that of bail for appeal provided for by section 124 of the same act. The condition of each undertaking is, that the principal shall satisfy the judgment that may be rendered against Mm in the action. The only difference as to the undertakings being, that in case of special bail, the satisfaction is to be either by payment of the judgment, or by surrender of the principal, while, in the case of bail for appeal, satisfaction may be made by payment only. Tet, independent of onr very liberal statute of 1845, in relation to amendments, it could hardly be claimed that an amendment of the writ by leave of court, after appeal, so as to make the description of the judgment in the writ conform to that in the declaration, would discharge the bail for appeal.

The present is certainly a very different case from that numerous class of cases, both in England and in this country, in which an exoneretur has been granted to special bail, where an action was prosecuted different from that in which the bail was given. The case of Wheelright v. Jutting, 7 Taunt. Rep. 304, may be referred to as illustrative of the distinction. A rule was obtained in that case to stay proceedings in an action, like the one under consideration, on a recognizance of bail, on the ground that the plaintiff had failed in establishing the cause of action for which the defendant was arrested. It appeared the defendant had been held to bail to answer an action upon a bill of exchange on which the plaintiff had declared, and also inserted in Ms declaration, a count for goods sold and delivered, and on a writ of inquiry, had recovered on the latter count, but had offered no evidence on the count on the bill of exchange. The court observed that bail should always be acquainted with the nature and extent of their liability, as they would otherwise be subject to fraud, and made the rule absolute. And so again, in the case of Fetherington v. Goulding, 7 Tenn. Rep. 80, it was held, that where the bail had undertaken, in an action in assumpsit, and the plaintiff had failed to declare against the defendant in assumpsit, but had declared against him in an action of trover, an exoneretur should be entered on the bail-piece»

Rut to fully appreciate the force of the English cases reported upon the rights and liabilities of bail, we must have respect to their statutes and rules of court upon the subject. By the statute, 23 Hen. 6, c. 9, the sheriff might take bail, it is said, for any amount he pleased, and the bail was liable to all actions returnable the same term. Com. Dig. Bail K, 3 M. 1, Cro. Jac. 286; 1 Mod. 16; 10 Mod. 153, 327; Tidd’s Pr. 81, 82. Since that time, the statute 23 Car. 2, c. 2, was passed, prohibiting the holding to bail in cases above £40, unless the true cause of action be stated in the process. It'enacts that “ the sheriff shall let to bail every person by him arrested on such writ or process, wherein the certainty and true cause of action is not particularly expressed, on security in the sum of £40, and no more, for his appearance.” Under this statute, the special hail was taken at the discretion of the judge. See Tidd’s Pr. 244; Bac. Abr. Bail, B. 3. It was afterward provided by statute, 4 Ann. c. 16, sec. 20, that, in the court where the action on the bond, or recognizance of bail, was brought, “ by rule or rules of the same court, the court may give such relief to the bail as is agreeable to justice and reason.” The statute, 12 Geo. 1, c. 29, provided that in cases above twenty*shillings, “ affidavit shall be made and filed of the cause of action, and the sums specified in the affidavit shall be indorsed on the process; and that the officer shall hold to bail for no more.” These several statutes, and especially that of 4 Ann. c. 16, sec. 20, giving the court by their own rules, almost absolute discretion and authority to summarily enter an exoneretur on a hail piece, will, doubtless, account for the seeming occasional discrepancy in the English cases upon this subject.

Toa like cause — the different statutes and rules of court —is to be attributed, in a great degree, that want of uniformity found in the reported cases of the different states upon this subject. In the most of the states, the liabilities and rights of the bail are defined, and the proceedings directed solely by statute; and the decisions of the courts of the different states must be, of course, respectively conformable to such statutory provisions.

But no case either in the English or American decisions has been brought to our notice, going to show the defendant to be in law exonerated, in this case, from his recognizance of bail.

At the time the defendant became special bail, as well as at the time the writ was amended by leave of court, a statutory provision in relation to amendments was in force in this state, providing as follows:

“ That the court in which any action shall be pending, shall have power to allow parties to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, and upon such terms as shall be just, at any time before or during the trial of such action, and before judgment rendered therein. Provided, that if such amendment be made in any pleading in matter of substance, as the court may in their discretion allow, the adverse party shall have time, according to the course and practice of the court, to answer the amended pleading, so as not to be prejudiced in conducting his action, prosecution or defense. Provided further, that process by which any action shall have been commenced, and on which aDy person shall have been arrested, shall not be amended in the return day thereof.” See act of March 12, 1845, 2 Curw. Stat. 1170.

Tbis statute, it will be observed, makes special mention of process, “ on which any person shall have been arrested,” and only prohibits amendment thereof in one particular — “ in the return day thereof; ” thus, by implication, permitting its amendment in any other respect, under the previous express provision, “ to amend any process.”

Under this liberal statute of jeofails, the court certainly had the same authority to allow the amendment of - the writ at the time the same was allowed and made, that by common law it would have had to amend a journal or record for the correction of an error which might have occurred during the same term, and while the proceedings were in fieri.

It is not supposed, however, that the court could, by an amendment, in either case, change the contract of defendant, or impose any other obligations upon him than those actually assumed by the terms of his undertaking, whether as bail for appearance, or to the action, or for appeal. But this undertaking was, that the defendant should satisfy the judgment obtained in that action. It was at least implied that all the proceedings in the action should be conducted according to the existing laws. No new cause of action has been expressed. The suit was commenced to recover the sum of $1280, with interest, for which a judgment was, both by the writ and declaration, expressed to have been rendered by a certain court, at a certain time, in favor of the plaintiff and against Lytle. No new cause of action, nor any increase or variation of the former cause of action, except to render more certain the description thereof, was made by the amendment.

Ve think, therefore, the amendment allowed by the court of common pleas was one “ for the furtherance of justice ” between the parties, and in no wise affected the recognizance of bail entered into by the defendant. And it will be seen by a reference to the case of Williamson’s Admr’s v. Hall, 1 Ohio St. Rep. 190, that the court in that case went much farther than we deem it necessary to go in this case.

The record shows that a judgment was rendered in the action at the April term, 1854, for $1,361.20 in favor of the plaintiff and against Lytle; and that a capias ad satisfaciendum, duly issued thereon against Lytle, previous to the commencement of the action against the defendant, had been duly returned “ not found.” Under this state of facts, we think the plaintiff was entitled to recover from the defendant, upon the recognizance of bail, the amount of the judgment so rendered at the April term, 1854, with interest thereon.

The judgment of the district court must, therefore, be reversed, and judgment entered in favor of the plaintiff.

Judgment accordingly.

Swan, Brinkerhoef, and Scott, JJ., concurred.

Bartley, C. J., dissented.