author: Hitchcock, J.

text:
    Harrison Johnson vs. The State.
    In a prosecution for rape, the declarations made by the injured female as to the transaction, immediately after the offence was committed, may be given in evidence to sustain her testimony given in Court, but not as substantive testimony to prove the commission of the offence.
    This is a Writ or Error to the Court of Common Pleas of Knox County.
    The facts are these:
    At the November Term of the Court of Common Pleas of Knox county, 1848, the plaintiff in error was indicted for a rape, charged to have been committed upon one Sarah M. Coal. 'After the indictment was returned, the plaintiff in error was arraigned, and to the indictment plead not guilty. The cause was submitted to a jury who returned a verdict of guilty.
    During the progress of the trial two bills of exceptions were taken.
    From the first it appears that the State, to maintain the issue on her part, and to prote the offence committed, inquired of the mother of the prosecutrix what she had said to her as to the act being done against her will ? The question was objected to, but permitted to be answered ; when the witness stated that the prosecutrix had informed her it was done against her will.
    The second bill of exceptions shows that thp State, to maintain the issue on her part, offered to prove the declaration of the injured female made to her mother immediately on her return home after the alleged outrage had been committed, for the purpose of proving the commission of the offence for which the defendant was indicted. This was objected to by the defendant, but the objection was overruled and the testimony received.
    Exceptions were taken in both instances, and it is now assigned for error, on the part of the Common Pleas,
    1. That it erred in receiving the evidence mentioned in the first and second bills of exceptions.
    2. That it erred in receiving proof of the declarations of the injured female, for the purpose of proving that the crime of rape had been committed by the defendant, as set forth in the bill of exceptions.

      Delano fy Sapp, for Plaintiff in Error.

      Henry Stanbery, (Attorney General,) and H. B. Curtis, for Defendant.
   Hitchcock, J.

The bill of exceptions in this case is very short, and it is to be presumed that it discloses but a small part of the testimony which was exhibited on the trial. It is sucha one, however, as was allowed in the Court of Common Pleas, and.we must take it as it is, and if upon its face there to have beeft error committed, the judgment must be reversed. The exception to the testimony offered by the prosecution, is not, that in a certain state of case, it would not be proper, but that for the purpose for which it was offered it was improper.

The first bill of exceptions shows, that the counsel for the prosecution put to a witness, who was called to testify as to the declarations of /he prosecutrix, soon after the injury was said to have been inflicted, “ the following question to prove the offence committed, what did she say as to the act being done against her will ? To which question defendant objected,” but the objection was overruled and the question was answered.

The second bill of exceptions shows that the prosecution “ offered to prove to the jury, the declarations of the injured female the same day of the alleged offence, as evidence to prove the offence committed,” for which, the plaintiff in error was on trial. , This testimony was objected to, and the objection overruled.

There can be no doubt, that in a case of rape, the declarations of the injured female, made immediately or soon after the injury inflicted are competent testimony, provided the female herself has first been examined; competent not for the purpose of proving the commission of the offence, but as corroborative of, or contradictory to, her statements made in Court. If these declarations are in accordance with the testimony given in Court, they tend to strengthen and give effect to'that testimony ; if against it, the testimony is destroyed. If such testimony were to be entirely excluded when offered on the part of the prosecution, it would be extremely difficult to convict in any case. For as a general rule, it would be dangerous to convict, unless immediate complaint was made by the female, to her friends or others. And that such complaint was made, and the substance of it, ought not to be withheld from the jury. In this point of view, and for this purpose, testimony given by the mother (for the mother was the witness on the stand) of the 'declarations made by her daughter, immediately upon her return home, on the day the offence was said to have been given, was competent.

But although said testimony is competent for the purpose before stated, it is not competent as evidence in chief to prove the commission of the offence; as to this it is mere hearsay. This principle seems to be well settled in the law, and is sustained by the cases cited by the plaintiff in. error; 1 Denio’s Rep. 19; 38 Eng. Com. Law Rep. 173. And here is the difficulty in the case. Taking the bill of exceptions as containing the truth, and we must so consider it, it seems that the testimony was received for the explicit purpose of proving the commission of the offence. For this purpose it was not competent and should not have been received.

The judgment of the Court of Common Pleas is reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Solomon Nimocks and another vs. Madison Inks.
    In a declaration containing different counts, some sounding in contract and some in tort, there is a misjoinder, and for such cause the declaration will be held bad, either on demurrer or in arrest of judgment} and such defect is not cured by the second section of the act “to regulate the practice of the judicial courts/7 passed March 12, im>.

    This is a Writ or Error to the Supreme Court of Knox County.
    The case comes before the Court upon Writ of Error to the Supreme Court of Knox county. The original action was commenced before a Justice of the Peace, by the plaintiffs in error, against the defendant, on the 28th January, 1843. From the decision of the Justice an appeal was taken to the Court of Common Pleas.

      In the Court of Common Pleas the plaintiffs filed a declaration containing four counts. In the first count it is alleged in substance, that on the first day of April, 1842, at Knox county, the plaintiffs at the special instance and request of the defendant, employed the defendant as a mill-wright, to repair a saw mill belonging to the plaintiffs, at the price and for the sum of one dollar and fifty cents per day, and the defendant “ then and there agreed to superintend and boss the job, and put in a new forebay and reaction wheel, in said saw mill, and to make it saw as fast, if not faster, than William Lavering’s saw mill in Congress township, Richland county.” And although a reasonable time has long since elapsed, “yet the defendant, not regarding his employment and agreement, did not put in a new forebay, &c., but hath wholly neglected and refused so to do,” &c.
    The second count is like the first in its introductory part, setting forth the employment and undertakings of the defendant, and then proceeds: “Yet the said defendant not regarding his duty, and his said employment, but contriving and continuing to aggrieve the said plaintiffs, did not nor would put in the said new forebay or said reaction wheel, with due care, skill, and dilligence, and so as to make the said saw mill of the said plaintiffs, saw as fast as the said William Lavering’s said saw mill, and on the contrary thereof, the said defendant put in the said new forebay and reaction wheel in such a careless, unskillful, undue and improper manner-and with such a want of due and proper care, skill and dilligence in that behalf, that the said saw mill of the said plaintiffs did not saw as fast as the said saw mill of the said William Lavering, and became and was rendered wholly useless, to wit, on the first day of June, 1842, at Knox county aforesaid, and the said plaintiffs were then and there forced and obliged to expend large sums of money, which they would not otherwise had to do, and were forced and obliged by the reason of said neglect and unskillfulness of said defendant, to keep their said saw mill for a long time, to wit, one year, idle and unemployed.” ^
    The third count is something like the first, and the fourth substantially the same as the second.

      To this declaration the defendant pleaded not guilty, upon plea issue was joined. At the October Term, 1843, of Court of Common Pleas of Knox county, the case was tried by a jury, and a verdict returned in favor of the plaintiff. Whereupon the defendant moved in arrest of judgment, assigning for cause that in the declaration there was a misjoinder of causes of action. At the A pril Term of the said Court of Common Pleas, 1844, this motion in arrest came up for hearing, and the Court sustained the same, and rendered judgment in favor of the defendant.
    To reverse this judgment, the cause was removed by writ of error to the Supreme Court.
    In the Supreme Court it was assigned for error :
    1st. “That the Court of Common Pleas had arrested the judgment for a trifling technicality, without any sufficient and legal cause.
    2d. “The Court arrested the judgment,- and rendered a judgment against the plaintiffs for the costs in the case,- when in fact no judgment had been rendered in favor of the plaintiffs in the verdict.
    3d. “ The Court has omitted to render a judgment on the verdict of the jury at all.
    4th. “ The judgment was arrested by the Court in violation of the provisions of the second section of the act, entitled (an act to regulate the practice of the Judicial Courts,’ passed March 12, 1844.”
    The case in error came up for hearing in the Supreme Court, at the September Term, 1844, and upon such hearing, the judgment of the Court of Common Pleas was affirmed. To reverse this judgment of affirmance, this writ of error is prosecuted.

      Bartley fy Kirkwood, for Plaintiffs in Error.

      Delano Israel, and R. C. Hurd, for Defendant.
   Hitchcock, J.

The case now presented for the consideration of the Court, is not of much importance, so far as the amount in controversy is concerned, nor is there any involved of much consequence. The suit, however, has been prosecuted with much perseverance. It was commenced before a Justice of the Peace, and after he had passed upon it, was appealed to the Court of Common Pleas. In that Court, a trial was had by jury, but the verdict was set aside, and the judgment arrested. ■ It was next brought into the Supreme Court of the proper county, and by that Court, the judgment of the Court of Common Pleas was affirmed. From the Supreme Court of the county, it was brought into this Court, by writ errror, and has been depending here four years.

Not having been furnished with any argument by the counsel for the plaintiff in error, we know nothing of the points relied upon for the reversal of the judgment, either of the Supreme Court, or of the Court of Common Pleas, except as the same can be gathered from the assignment of errors. The simple question for consideration is, whether the Court of Common NPleas erred in arresting the judgment, because if that Court erred, the Supreme Court erred in affirming its judgment.

The motion in arrest was based upon the ground that in the declaration there was a misjoinder of actions, or causes of action. If there was such misjoinder, is this a sufficient reason why the judgment should have been arrested ? We suppose it is. Mr. Chitty, in his treatise upon pleading, says, “ the consequences of a misjoinder, are more important than the circumstance of a particular count being defective ; for in the case of misjoinder, however perfect the respective counts may be in themselves, the declaration will be bad on general demurrer, or in arrest of judgment.” (1 Chitty’s Pl. 235.) Taking this to be the rule of law, the question arises, whether in the declaration before us, there is a misjoinder. The first count in the declaration is upon contract. It sets forth an agreement, on the part of the defendant, to do and perform certain work and labor, upon and for the consideration specified, and that the defendant neglected and refused to perform the work and labor which he had agreed to perform. '

To us, it seems equally clear that the second count is in tort. The ground relied upon in this count for a recovery is, that the defendant would not do the work with care, skill, and diigence, but performed it “ in such a careless, unskillful, undue and imperfect manner, and with such a want of due and proper care, skill and diligence,” &c. If actions sounding in contract, and actions sounding in tort, can be joined in the same declaration, then there was no misjoinder; but if, .as we suppose, said actions cannot be joined in the same declaration, there was a misjoinder.

But it seems to be supposed that this was merely a technical objection, and that being a technical objection, the case is within the second section of the act of March 12, 1844, “ To regulate the practice of the Judicial Courts.” (42 Ohio Laws, 72.) This section provides “ that no new trial shall be granted, or judgments arrested, or writ of error allowed, after trial or judgment in the Court of Common Pleas or Superior Court, on account of any objection to the form of action in which the plaintiff may have declared, or on account of any technical objection to the declaration or other part of the proceedings, in case the facts are substantially alleged, which the party was bound to prove on the trial, in order to entitle him to a recovery.” It is to be observed that this act was passed while the motion in arrest was under consideration in the Court of Common Pleas. That motion was made at the the October Term, 1843, the act was passed March 12th, 1844, and the motion decided at the April Term of the Court of the same year. Whether under such circumstances the statute, even had it reference to a case like this, could be construed as applicable to this case, is a matter of doubt. In order so to apply it, we must give it a retrospective operation, which should never be done, unless in consequence of an express provision to that effect, and even in such case the Court would hesitate. But I apprehend that the statute has no application to a case like this. The objection taken to the declaration is not merely a technical objection. It is no more technical, than would be an objection to a declaration because it contained one count upon a. bond, another an assault and battery, and another for breach of promise of marriage. Under the statute, if an action of trespass on the case should be brought, when the proper .remedy would be trespass, I suppose the action might be sustained. But an action of assumpsit would not be sustained by the proof of a slander. Satisfied that in the case before us there was a misjoinder, we are of opinion that no error intervened, either in the Court of Common Pleas or in the Supreme Court. The judgment of the latter Court is therefore affirmed.


author: Avery, J.

text:
    Ethan Michael and wife vs. Peter Mills and others.
    When the title to a part of the premises sold and conveyed fails, the vendee may recover back a proportionate share of the purchase money paid.
    Jf his deed be lost he may maintain a bill in Chancery for the recovery of the money.
    This is a Bill in Chancery reserved in Franklin County.
    The facts of the case are stated in the opinion of the Court.

      T. Ewing and P. B. Wilcox, for Complainants.

      Henry Stanbery, (Attorney General) for Defendants.
   Avery, J.

This bill was filed November 18th, 1844, by Ethan Michael and Martha his wife against Peter Mills and certain other defendants, seeking to rescind a contract which had been made by Mills for the sale of lands, and that he be compelled to refund the purchase money with interest, and for general relief.

The complainants claim also that the Court, according to the facts appearing in the case, may treat Mills as a trustee and charge him with the proceeds arising from the sale of the land, after deducting the purchase money, taxes, costs, &c. The complainants representing themselves as of the Commonwealth of Maryland and the heirs and legal representatives of William L. Bush and Lewis Bush, late of said Commonwealth, deceaséd, state in the bill amongst other things, that in the fall of 1811, Mills sold at $1 50 an acre, and by absolute deed in fee simple conveyed to said William and Lewis Bush 2825 acres of section 4, township 1, range 16, United States Military Land, lying in Franklin county, Ohio, being a 4000 acre tract. The sum of $2500, part of the purchase money was paid down, and for the residue, $1737 50, three notes were given and secured by mortgage ón the premises, the first payable in November, 1812, the second in November, 1813, and the third in November, 1814. On the second of August, 1819, Mills filed his bill in the Franklin Common Pleas to foreclose the mortgage. To this bill the two daughters of Lewis Bush were made parties by newspaper publication, and William L. Bush was also named as one of the defendants, though he had died many years before. At the March Term, 1821, of the same Common Pleas, Mills obtained a decree and an order for the sale of the mortgaged premises, in pursuance of which order the premises were offered for sale, and 2000 acres off the north side of the tract purchased in by Mills. On the 3d of August, 1819, one David Townsend filed his bill in Chancery against Mills and others claiming title to á part of the land sold as above to William and Lewis Bush. On the 15th of December, 1825, in the Supreme Court of Franklin county, a final decree was rendered against Mills for 800 acres of the land, and on the same day in obedience to the decree he conveyed the 800 acres in fee simple to Townsend. The complainants claim to own the titles both of William and Lewis Bush. Afterwards the defendant Mills, by further proceedings on the mortgage, obtained a second decree and purchased under it the residue of the 2825 acres. The bill charges that both the decrees upon the mortgage were fraudulent and void. A bill of revivor with an amendment to the original bill, was filed tober 23d, 1846, said Martha, one of the complainants, being before that time deceased ; and in this amendment, besides other things stated, it is set forth that the deed from Mills to William and Lewis Bush is lost, and that nothing respecting it has been known since a short time .after its execution. Mills has put in answer under oath to the original bill and to the bill of revivor. In the answer the fraud charged upon Mills is denied, and a defence upon the whole case set up. The answer further presents certain grounds of objection to the complain ants’ right in equity, of which the defendant asks the same benefit he would have by plea or demurrer. And first, if there has been any failure of title, the remedy is at law, upon the deed and whatever covenants it may contain.

2d. That from the showing of the bill there was no failure of title to any part of the land, while the' grantees or their heirs had any interest, legal or equitable, in the 800 acres.

3d. That if there had been a failure of title to the 800 acres, that would not furnish aground for re-payment of the $2,500, inasmuch as there remained 2025 acres, which, at the contract price, was more than equal to the payment so made. The answer further insists, that so far as the proceedings under the mortgage are claimed to be void for any pretended want of parties or other irregularities, no case is made by the bill to impeach them.

That if the balance of the purchase money had been paid' before the decree of Townsend, he could have extinguished Townsend’s claim, and had a surplus. He also relies on the great lapse of time in bar of relief, and upon the statute of limitations.

This is but a slight notice of the mass of materials found in the case. But it contains, I believe, all that is needed to show the basis of our decree. Upon the evidence produced we have not found the fraud charged in the bill, fraud such as should set aside the decrees upon the mortgage, or rescind the contract and direct a re-payment of the purchase money and interest.

Nor do we find at this time, in the heirs of William & Lewis Bush, the right in equity which once clearly existed, to rescind the contract or set aside the deed, because of the failure of title to the 800 acres. The heirs were parties, according to outlaws, to the proceedings of Mills on the mortgage, and to the bill in equity of Townsend at the same time pending for the recovery of the 800 acres. And though only parties by publication, and it may be without any actual knowledge of the pendency of these proceedings, still the proceedings were sufficient to pass the fee of the lands, no adequate defence having been made at the time. And if all who are made parties, in whatever mode, are to be regarded as in Court, the defence should have been made while the proceedings on the mortgage were pending. The neglect or omission to claim then, a right to abandon the purchase, must be regarded now as a waiver of the claim. From this it would seem, that the complainants would not be entitled to relief under their bill as originally framed. Can they have any remedy in the state of facts as they appear in the case, and if so, can it be granted under the bill as amended ?

The sale of the land made to Wm. & Lewis Bush, was of 2825 acres, and a sale at $1 5.0 an acre. For this quantity a deed in fee simple was executed. What covenants that deed contained,* cannot with accuracy be known. It ought, in accordance with the terms of sale, to have been such a deed as would secure a right to the number of acres actually sold, and sold for a fair price. And the facts of the case, as the contents of the deed cannot be proved, warrant the presumption, unless Mills intended at the time to perpetrate a fraud, and escape the legal consequences of his contract, that he conveyed the land by a deed in such form as to secure the obvious rights of the purchaser. When, therefore, the title to 800 acres of the tract, failed by Townsend’s decree of 1825, the right existed to recover back at law, the purchase money to that extent. But as the deed was lost, the party injured had a right to proceed in equity for redress. '

It is not perceived how the re-purchase by Mills at the iff’s sale could destroy either the legal or equitable claim of the heirs. In an action at law upon the covenants of the deed, it would have furnished ho defence. ' And in point of equity, the heirs lost the benefit of a fair sale Of their land, for if 800 acres were to be withdrawn from the tract, or, as the result of the pending proceedings, likely to be withdrawn, no one could be expected to bid as much as for an undisputed title to the whole.

The statute of limitations would not have been against all the complainants, a bar to proceedings at law upon the deed, when this bill was filed. Viewing the trust reposed in Mills, the dealings of the parties, and the peculiar train of facts appearing throughout the case, the complainants are not to be charged with laches that should defeat their claim in equity ; and this claim in the opinion of the Court may be secured under the present bill and amendments.

There will consequently be a decree against Mills for the repayment of the purchase money of the 800 acres, with interest from the date of Townsend’s decree in 1825. From this sum will be deducted, however, the sums paid by Mills to the heirs of Lewis Bush. And as William Bush devised to Harriet Brown, who is made defendant, 100 acres of the tract, she is to receive a part of the purchase money directed to be repaid, in proportion to her share in the tract.


author: Birchard, C. J.

text:
    James Graham and another vs. Thomas Cooper.
    Where interest greater than at the rate of six per cent, has been voluntarily paid, the same cannot be recovered back, or set off against the principal debt.
    This is a Writ op Error to the Court of Common Pleas of Butler County.

      The original action was Assumpsit, instituted by the Defen^ant ’n ®rror against the Plaintiffs in Error upon a promissory for $1176 22.
    The bill of exceptions shows that sundry payments of interest at a greater ‘rate than six per cent, had been made and indorsed upon the note. The indorsements were all similar in form, though differing in amount, and in the rate of interest, and alike to these :
    ■ “ Paid on the within, sixty dollars in full for six months interest. August 8, 1840.”

      “ Paid two hundred and forty dollars for two years interest on the within, úp to 26th May, 1843.”
    The defendants below insisted that the surplus of the several credits or indorsements on the note, over and above the legal interest, should be applied towards the payment of the principal of said note. But the Court ruled otherwise, and held that the sums thus paid and applied by the parties as usurious interest, could not be applied towards the discharge of the principal.

      John Woods, for Plaintiffs in Error.

      Lewis JD. Campbell, for Defendant.
   Birchard, C. J.

This case presents the single question whether interest greater than at the rate of six per cent, when voluntarily paid and applied by the agreement of parties as extra interest, can be recovered back, or set off against the principal debt. This question has often been made in this Court and has been decided in the negative as often as made; Shelton v. Gill, 11 Ohio Rep. 417, Ib. 498, 12 Ohio Rep. 544, 13 Ohio Rep. 115.

These repeated decisions have settled the law, and we consider the question at rest. There is no reason why the statutory penalty of five per cent, should not be allowed, and we therefore refuse to certify that there was probable cause for prosecuting this writ of error. Judgment affirmed, with statutory damages and costs.


text:
    Slocum & Collins vs. McBride & Lord.
    A Court cannot take notice of a misnomer upon a demurrer, but only when the fact is properly put in issue, and proved or admitted.
    This is a Writ of Error to the Court of Common Pleas of Knox County.

      S. Israel, for Plaintiffs in Error.

      Delano &f Sapp, for Defendants.
   Birchard, C. J.

The defendants in error sued the plaintiffs in error, in assumpsit, and declared upon a promissory note, thus: “ McBride & Lord, partners, using the name of McBride & Lord, .complain of C. C. Slocum, J. A. Collins, &c.,” in a plea, &c. The note is set forth in the count as executed by C. C. Slocum and J. A. Coffins, &c.

To this declaration Slocum & Collins demurred, specially, 1st, for that the Christian names of McBride & Lord were not stated; 2d, for that J. A. Collins has the &c.” appended to his name, and for general vagueness. The demurrer was overruled, and judgment rendered upon default of plea, for the sum due upon the note. It is said the Court erred in overruling the demurrer, and entering judgment. We are not of this opinion. For anything that appears upon the face of the declaration, or demurrer, neither McBride or Lord has any Christian name. Nor does it appear but that the “ &c.” is a part of the sir name of J. A. Collins. Names are arbitrary — as the name of “ John Smith T.”— so that a Court can only take notice of a misnomer, of either plaintiff or defendant, when the fact is properly put in issue, and proved or admitted. A demurrer can never be employed to bring upon the record a new fact. That is not a part of its office. In this case, there is no ground for prosecuting the writ of error, and the judgment will be affirmed, with statutory damages.


author: Hitchcock, C. J.

text:
    Matthew Acheson v. Ruel Miller.
    One of two joint trespassers who has been compelled to pay damages for the trespass can not compel his co-trespassers to contribute.
    When a judgment in an action of trespass for taking and carrying away goods is rendered against the defendant, the property in the goods vests in him from the time of the judgment.
    This is a writ of error to the Court of Common Pleas of Trumbull county.
    The original action was in assumpsit, prosecuted by Miller against Acheson. The declaration contained the common counts, to which the defendant in that case interposed the plea of the general issue.
    The case was submitted to a jury, and a verdict returned in favor of the plaintiff below, upon which judgment was entered

      After verdict and before judgment, the defendant below moved the court for a new trial, which motion was overruled; to which opinion of the court overruling the motion, the plaintifl in error excepted, and his bill of exceptions was allowed and made part of the record.
    Another bill of exceptions was also tendered by the plaintiff in error, which was also allowed and made part of the record.
    From this bill of exceptions these facts appear:
    On December 29th, 1834, Gary Lewis drew a bill of ex change on Williams & Macy, of Buffalo, for $5,000, which was indorsed by the said Acheson and Miller, and by Samuel H. Sutliff, Levi Sutliff, Calvin G. Sutliff, and 0. H. Wilcox, and discounted by the Western Reserve Bank. The bill being protested for nonpayment, the bank recovered a judgment against Lewis -for $5,462.34, .and a judgment for the same amount •against all the indorsers in a joint action.
    January 16th, 1836, an execution was issued on the judgment against Lewis, by virtue of which a levy was made upon a stock of goods as the property of Lewis, the property sold upon that and other executions, and $3,135.73 applied on the judgment.
    Previous to this levy, the goods had been sold to one Daniel Gilbert, and the sheriff refused to levy without being indemnified. Calvin G. Sutliff, Lewis Sutliff, Wilcox and Miller, gave to the sheriff an indemnifying bond, and ordered the levy to be made.
    An action of trespass was subsequently commenced by Gilbert against the sheriff and these four indorsers, for taking, and carrying away the goods, in which he recovered a judgment of $5,354.61. One-fourth of this judgment was paid by Miller, the plaintiff below, and this action was brought to recover of Acheson that portion of the money made from the sale of the goods, which Miller would have been entitled to recover, had the goods, when sold, been the property of the four indorsers who ordered the sale, and who had been compelled subsequently to pay the value of the goods.

      The following errors are assigned:
    1. The court erred in allowing the testimony offered by Miller to go to the jury.
    2. The testimony offered by Miller was not sufficient in law to make out his case.
    3. The court erred in overruling the motion for a nonsuit.
    4. The court erred in overruling the motion for a new trial.
    5. The general error.

      John Qrowell, for plaintiff in error,
    cited the following au thorities:
    Chitty on Cont. 657; 4 Ohio Rep. 136; 6 Mod. Rep. 131; 2 Strange 933; 4 Johns. C. Rep. 337; 4 Pick. Rep. 314; 11 Wheat. Rep. 258; 11 Serg. & Rawle’s Rep. 164; 1 Caine’s Rep. 104; 6 Ohio Rep. 217.

      M. Sf Q. Cf-. Sutliff., for defendant,
    cited the following au thorities:
    Swan’s Treatise, 3d edition, 467; 2 Kent. Com. 387; Stra. Rep. 1078; 6 John. Rep. 168; 1 Rawle’s Rep. 121; 4 Rawle’s Rep. 273; 5 Serg. & Watt’s Rep. 17; 8 Cowen’s Rep. 43.
   Hitchcock, C. J.

In order to a correct. disposition of this case, it seems only to be necessary to ascertain the nature of the controversy, and the true state of facts upon which the judgment in the court of common pleas is based. These are disclosed in the bill of exceptions. It seems that in December, 1834, a bill of exchange was drawn by Gary Lewis upon Williams & Macy, of Buffalo, New York, which bill was indorsed by Matthew Acheson, Samuel H. Sutliff, Levi Sutliff, C. H. Wilcox, Ruel Miller, and Calvin G. Sutliff. This bill was for five thousand dollars, and was discounted by the Western Reserve Bank. Suit was subsequently commenced by the bank against Lewis, the drawer of the bill, and a judgment recovered for the sum of $5,462.34. A similar suit was commenced against the indorsers, and a joint judgment obtained against them for the like amount. Miller claims that he has paid a part of the debt due to the bank, and that Acheson nas paid nothing, and the object of this suit is to compel contribution

There is no question but if one rf two or more sureties is compelled to pay the debt of his principal, he may call upon his co-sureties for contribution, and the plaintiff in the court below had a right to recover, provided he brought himself within this principle. What, then, are, in substance, the facts upon which he relied in the court below ?

On the 16th January, 1836, an execution was issued on the judgment of the bank against Lewis, placed in the hands of the sheriff, and levied upon a stock of goods as the property of Lewis, and these goods were subsequently sold, on this and other executions against Lewis, at the same time in the hands of the sheriff. Of the avails of that sale, $8,135.73 were ap plied on the judgment of the Western Reserve Bank.

Upon the face of this proceeding it would appear that the judgment was so far satisfied by a sale of the property of the principal debtor. But the fact is not so. Before the levy of the execution, Lewis had sold the goods to Daniel Gilbert. Before the levy was made, the sheriff, fearful of difficulty, took an indemnifying bond from Calvin G. Sutliff, Levi Sutliff, Wilcox and Miller, four of the indorsers, and these four, or a part of them, broke into the store, and directed the sheriff to levy on the goods.

An action of trespass was subsequently commenced by Gilbert against the sheriff, and the above named four indorsers, to recover damages for taking and carrying away the goods. The result of this action was a judgment against the defendants for $5,354.61 damages and costs. This last judgment has been paid and satisfied by the four indorsers who signed the indemnifying bond. And now Miller claims that, having paid one fourth part of this judgment in the action of trespass, he is to be placed in the same situation he would have been had he actually paid one-fourth part of the $3,135.73, which was made on the execution in favor of the bank against Lewis, the prim eipal debtor. It is not claimed that he actually paid one-fourth part of this latter sum, but he has paid one-fourth part of the greater sum, which was recovered in the action of trespass for the identical goods which were sold to raise the lesser sum of $3,135.73.

Now, this is not the case where one joint trespasser is calling upon his co-trespasser for contribution. If it were, I presume no one would doubt that this suit must fail, for I take it no principle is better established than that such suit can not be maintained. But it is the case of a trespasser calling upon one no way concerned in the trespass, for contribution. The claim, it is true, is, not that this stranger to the trespass shall contribute to the full amount of the damages assessed for the wrongful act, but that he shall contribute his proportion of the amount for which the goods were sold.

To sustain this claim, the counsel for the defendant urge that when an action of trespass is prosecuted for taking and carrying away goods, and a recovery had by the plaintiff, the property in the goods is changed and becomes vested in the defendant. There is no doubt that, as a general rule, this is true. But did. the property of the goods in this ease, become the property of the defendants, in consequence of the judgment in trespass ? These goods had been sold at sheriff’s sale years before the judgment was rendered. The effect of the judgment might secure the purchasers at sheriff’s sale in their title to the goods, but it gave the defendants in the trespass case no title to them. It seems to be argued, however, that this judgment had a kind of retroactive operation, and vested the title in the defendants, as of the time when the trespass was committed, and establishes the fact that at that time the goods were, in law, the goods of the trespassers, so that the goods sold were not the goods' of Lewis or of Gilbert, but actually the goods of those who had wrongfully seized upon them. It seems to the court that this is a' novel principle of law.

Besides, although by a judgment in trespass, the goods taken and carried away become the goods of the defendant, yet if there are two or more defendants, and the judgment is collected of one, he cannot call upon his associates, those who become jointly interested with him in the property by the judgment, for contribution. Much less'could he have contribution from one who had no part in the trespass.

Inasmuch, then, as the only right cf the defendant in error to recover, originated in a trespass by him committed, it seems to the court that his claim is without any good foundation, and that the court of common pleas erred in receiving the record of the case in trespass in evidence ;• in refusing to nonsuit the plaintiff below; and in refusing to grant a new trial.

Judgment reversed, with costs.


author: Spalding, J.

text:
    George B. Goodin et al. v. The State of Ohio, for the use of Hardin County.
    A settlement made by the commissioners of a county with the county treasurer, at the expiration of his term of office, the taking of his individual note on time, secured by mortgage, for the public money remaining in his hands, and a receipt in full given by the commissioners to the treasurer, will discharge the sureties in his official bond, even though the settlement be obtained by fraud on the part of the treasurer, especially after the lapse erf five years, — no fraud or collusion being imputed to the sureties.
    This is a writ of error to the Court of Common Pleas of Hardin county.
    Suit was brought in the court below, upon the bond of Good-in as treasurer of Hardin county, against him and his sureties in the bond. On the trial, at the April term, 1849, the plaintiff, after introducing the bond, showed a balance of money remaining in the hands of Goodin, on the ninth day of June, 1842, of $869.58, for which sum, by order of the county commissioners, he gave his individual note to his successor in office, pay able five months after date. This note was secured, or sought to be secured, by a mortgage on the lands of Goodin.
    The defendants then introduced in evidence five several receipts of the commissioners, all bearing date the same ninth day of June, 1842, and acknowledging that “ G. B. Goodin, late treasurer of Hardin county, had paid over in full ” the several funds which had come into his hands as such treasurer.
    They further offered in evidence, an order made by the commissioners at their December session, 1842, as follows:
    “ Ordered, that C. W. Stevenson, auditor of Hardin county, proceed to the collection, by law, of a note or bond which G. B. Goodin, late treasurer of said county, signed and made payable to Usher P. Leighton or his successors in office, and dated Juile 9,1842, and due five months after date, for the sum of $869.53 cents and 4 mills, and bring suit so as to have service on or before the first day of April, 1843.”
    They then showed that suit was commenced in pursuance of said order, judgment obtained; and that sundry writs of execution had issued against the defendant Goodin, upon one of which he had paid one hundred and fifty dollars, and, in consideration of such payment, the commissioners had ordered the writ returned and stayed until a subsequent term of the court, and that there had been and was still a subsisting levy on lands of Goodin of small value.
    The plaintiff then offered evidence tending to prove that said settlement with the commissioners, and the receipts for said several funds, had been procured by said Goodin by fraud, he having executed a mortgage of the greater part of his lands to one John Goodin some three weeks before the settlement, without making the same known to the commissioners.
    Upon this state of facts the court charged the jury that “ if Goodin acted fraudulently in procuring the settlement with the commissioners, and in obtaining time for the payment of the money, the sureties in the bond were not discharged though they did not participate in the fraud: And if the said note, giving five months time to Goodin, was not under seal, though reduced to judgment, and execution issued, and levy made, which levy, ■on part of the premises, was still subsisting, it was not a discharge of the sureties in an action on the bond.”
    It is alleged as error that the court of common pleas in thus charging the jury mistook the law. Other causes of error are assigned, but as they are not considered by the court they are not stated here.

      3. Lane tf* Son, for plaintiffs in error,
    Contended that under the statute it was the duty of the commissioners to settle with the treasurer on the expiration of his term of office, that they had full power in the premises, and that their settlement was final and conclusive, and discharged -the sureties. They cited Swan’s Stat. 206, sections 9,12, and page 968, sec. 31.
    As to fraud : it was contended that the commissioners having undertaken to act with the principal, without giving notice to the sureties, and concluded an arrangement with the principal which induced the sureties to suppose their liability was discharged, it would be unjust to them afterwards to seek to enforce it. If the commissioners are imposed upon in their .attempt to deal with their debtor, the fault was their own. 8 Pick. Rep. 122.

      B. Stanton, for defendant,
    'Maintained that as fraud vitiated all contracts, if the settlement made by the commissioners was tainted with fraud it was not binding upon them, and the right of action upon the bond was not lost.
    Neither was the settlement, the giving of the note for the balance found due from Goodin, and the proceedings had upon it, even, if free from all imputation of fraud, a discharge of the sureties. There was no giving of time to the principal, such as to prevent the commissioners at any time from bringing suit on the bond. Neither was there toy merger'of the covenant in a higher security.
    He relied on the following authorities: Chit, on Bills, 274; 11 Wend. Rep. 320; 3 East’s Rep. 251; 3 Barn, and Cress. Rep. 208; 4 Carr. & Paine’s Rep. 151; Theobald on Pr. & Sur. 79; 5 Dowl. & Ryl. Rep. 259; 5 Ohio Rep. 173; 8 East’s Rep. 242; 4 Pick. Rep. 153; 5 Pick. Rep. 307; 8 Pick Rep. 458; 10 Pick. Rep. 129; 18 Pick. Rep. 240; 3 Term Rep. 251; 12 Wheat. Rep. 554; 13 Ohio Rep. 84.
    As to Goodin, the right to sue upon the bond clearly has not been lost by the settlement, and as he is sued jointly- with his sureties, the defense does not go to the whole cause of action. Farr1ington v. Galoway et al., 10 Ohio Rep. 543; 8 East’s Rep. 242.
   Spalding, J.

In considering this case the court has deemed it unnecessary to consider any of the points raised, except those which depend upon ruling of the court below, upon the prominent facts in the case.

It seems to have been admitted that a settlement of Goodin’s account as treasurer was made on the ninth day of June, 1842, and that the commissioners of Hardin county were then satisfied to take his individual note at five months, with the mortgage security he óffered, for the balance of the money in his hands belonging to the county. But it is said the transaction is tainted with fraud, and so the settlement is void.

If Goodin mortgaged lands to the county which were subject to a prior incumbrance, it may or may not have been a fraud on the commissioners, according to the circumstances of concealment. But be this as it may, there is no pretense that the sureties of Goodin were implicated in any such charge.

And, indeed, the ruling of the court is made expressly upon the hypothesis that the sureties had no participatiop in the fraud. How then stands the case ? Goodin’s term as treasurer hud expired in the spring of 1842. In transferring the funds to bin Successor he was found tobe deficient in the sum of $869.53.-The commissioners of the county, being authorized by our law so to do, adjust and settle this balance by taking the note of the delinquent treasurer on time, and by giving to him in refurn a full and perfect aequitanee for all moneys received by him in his said capacity of treasurer.

In this transaction the sureties have no agency, directly or indirectly.

They are informed, however, that their principal has made a satisfactory compromise with the commissioners, and he exhibits to them full receipts for all funds that had passed through his hands as treasurer.

In process of time suit is instituted against Goodin upon hia note, judgment is recovered and execution is levied upon lands. Some portion of the judgment is satisfied by advancements of money made by Goodin, and occasionally, a stay of execution is acceded to by the -commissioners for his convenience. Finally, after the lapse of five years, it is ascertained that Goodin had executed to some third person a mortgage deed of the most valuable part of his lands a few days before he gave his note to the commissioners, and a suit is instituted against his sureties on the bond.

Such a proceeding cannot be sustained. We look upon the transaction of the 9th of June, 1842, not as an extension of time merely by the commissioners to the principal in the bond, but as a full and final settlement of the treasurer’s account; and the sureties, in the absence of any fraud or collusion on their part, could interpose no more effectual shield to a claim against them on their bond, than the receipt of the commissioners to their principal, acknowledging payment in full of all moneys' that had come into his hands as treasurer. If there was fraud or mistake in such settlement, the commissioners should have repudiated it within a reasonable time. Their subsequent -proceedings in commencing suit, recovering judgment, levying on lands, etc., would preclude them from setting up the fraud' practiced on them by Goodin, to the prejudice of third persona who were innocent.

Besides, for the space of five years the sureties had reason to suppose themselves absolved from all manner of liability by reason of said bond. They of course would take n'o steps to obtain indemnity at the hands of Goodin. Every principle of law would require that the commissioners should be held to the settlement, so far as it concerns the rights of the sureties. In the case from Massachusetts, cited by counsel for the plaintiffs in error, (8 Pick. 122,) it appeared that the creditor had told the surety that the obligation was paid.

It turned out afterwards that he was mistaken ; and the court-held that the surety was discharged if injured by such declaration, notwithstanding it was a mistake.

In the case before us, the principal debtor produces to his sureties a full and complete discharge from his creditors, and for five years that discharge is permitted to go unquestioned. Are not the sureties discharged ? We say unhesitatingly they are ; and the judgment of the court of common pleas of Hardin county is therefore reversed.


author: Caldwell, J.

text:
    Sarah Denbow v. The State of Ohio.
    An indictment for burning stacks of wheat is not supported by evidence of burning shocks of wheat.
    This is a writ of error to the Court of Common Pleas of Washington county.
    The indictment charged the plaintiff in error with willfully and maliciously setting fire to, and burning fifty stacks of wheat. On the trial, the only witness examined, testified that he saw the defendant, Sarah Denbow, setting fire to divers shocks of wheat, standing in rows in the field where it grew. The witness further stated, that the shocks consisted cf twelve sheaves^ that two of the sheaves were cap sheaves, to cover the remainder. He also stated that he called them shocks, and not ■stacks. The defendant’s counsel moved the court, to instruct the jury, that this evidence did not support the indictment, and that their verdict should be for the defendant; which the court refused. To which refusal of the court to charge, the defendant excepted. The jury returned a verdict of guilty, and the court passed sentence.

      Archbold Green, for plaintiff in error.

      Henry Stanbery, (attorney general,) and W. S. JNye, (prosecuting attorney,) for defendant.
   Caldwell, J.

The statute, under which this indictment is framed, makes it penal to set fire to, or bum, stacks of wheat, but says nothing about shocks.

When any article of property is referred to in a penal statute, as the subject of an offense, only such property as is usually designated by such term, can be supposed to be embraced within its provisions.

When things of the same kind have different names, arising from difference in size, number, age, situation, or any other circumstance, only such as are expressly mentioned by the terms generally appropriated to them, can be held to have been contemplated by the legislature. The charge in this case was for burning stacks of wheat. The proof was the burning of shocks of wheat. Now if the terms, shock of wheat, and stack of wheat, are equivalent, then the proof will sustain the indictment: but the* only witness who testifies, states that he considers them different.

And in common parlance, the two terms have a totally distinct, and different signification. The shock is the term applied to the small collection and arrangement of a few sheaves together, in the field, in such a manner as to protect them against the weather for a few days, until the farmer has time to gather them into his barn, or place them in the large conical pile called n stack.

Why the legislature should have provided a penalty for the-burning of the one, rather than the other, will be apparent tc any one. The court of common pleas should have charged the jury as requested by defendant’s counsel, and, by refusing, so to do, have clearly erred. The judgment will therefore be reversed.


text:
    Charles L. Boalt et al. v. The Commissioners of Williams, Defiance, and Paulding Counties, William A. Brown and John A. Bryan.
    Neither the 16th section of the chancery act, nor the general chancery powers of the courts of Ohio, authorizes a hill in chancery against a county to subject equities.
    This is a bill in chancery, reserved in Williams county.
    The bill sets forth the existence of three judgments recovered upon county orders, in the court of common pleas of Williams-county, against the commissioners of that county; one in favor of Baker and Kitridge, another in favor of Penniman, and a third in favor of Boalt, amounting in the aggregate to something over $2,600. The bill -further states that executions upon the several judgments have been issued, and returned unsatisfied, and that the county of Williams has no property subject to execution; that it owns claims and choses in action, one of which is against Defiance county, and accruing at the time when that county was created, under a provision in the act subjecting that part of the territory of Defiance which had been taken from Williams county, to the payment of a certain proportion of the debt of Williams county, and directing the authorities of Defiance county to levy an annual tax upon the-part so taken from Williams ; and in that manner, in a course-of years, to pay all its proportion of the debt; and further directing the authorities to issue in anticipation, orders upon the treasury of. Defiance county for its proportion of the debt, with interest, payable in ten years from the date of the act. The bill furthér states that Paulding county is indebted to Williams county in an amount over five hundred dollars, for which an order has been issued and deposited in the hands of William A. Brown. The bill prays, amongst other things, that steps be taken to adjust the balance due from Defiance county, and that the commissioners of Defiance county be compelled to issua their order for the amount of their debt to Williams county] and that these orders of Defiance and Paulding counties be sold at public auction to the highest bidder, and the money accru ing from the sale to be applied towards the extinguishment of the above named judgments. The bill further states, that John A. Bryan is indebted to Williams county, and prays that this ■debt may also be applied on the said judgments, and for general relief. Some of the defendants have answered, and others have demurred.

      O. L. Boalt, for complainants,
    cited the following authorities

      Henry et al. v. Vermillion & Ashland R. R. Co., 17 Ohio Rep. 189; 7 Johns. Ch. Rep. 208; 11 Ohio Rep. 273; Hubbell v. Perrin et al., 3 Ohio Rep. 287; 2 Ohio Rep. 294; Hardin v. New Haven Township, 3 Ohio Rep. 227; Wright v. Bell, Daniel’s Rep. 95.

      S. H. Blalceslee, for Williams county,
    cited the following .authorities:
    Angell & Ames on Corp. 426; State v. Todd, 4 Ohio Rep. 355; Gorgas v. Blackburn et al., 14 Ohio Rep. 252; 12 Johns. Rep. 414; 2 Cow. Rep. 485; 5 Ohio Cond. Rep. 490; Story’s Eq. Pl. sec. 472-3.
   Avery, J.

A bill in chancery, seeking to subject choses in action, claims and equities, to the satisfaction of judgments, when ■by the process of execution no property can be reached, is authorized in express terms by our statute, and might also be sustained in our courts of equity in a proper case, as it is supposed, even though no such statute were in existence. It is urged upon us, in behalf of the complainants, that in either view, this is a proper case for granting the relief sought, and that it is the only adequate remedy they can have. To accomplish the purposes desired by the bill, it will become necessary for the court to superintend the service devolving by law upon county officers, ,and to continue to do so in the case, probably through a series of years; to settle and fix the proportion due from Defiance county; to cause the amount so due to be evidenced by an issue ■of county orders, and generally to coerce the several officers of Defiance and Williams counties into the performance of their various public duties. If there be a remedy in this mode of proceeding, for the complainants, it must be conceded that it is through a somewhat novel exercise of the powers of this court, under its chancery jurisdiction. It would be a novel proceeding, too, for the court to direct a sale of the county orders by public auction to the highest bidder. Yet it is probable that no decree of the court, touching the disposition of these county orders, can benefit the complainants, unless it be an order of sale, by means of which they may obtain the money arising from the sale, or, becoming themselves the purchasers, secure a good investment. They would not find it for their interest, perhaps, to cancel their judgments or a part of them, against Williams jountv, for the sake of obtaining the orders in question of either Paulding or Defiance county. There is a claim noticed-in this bill which .may be -of the kind usually found in a creditor’s bill, that in favor of Williams county against John A. Bryan; but the amount is not set forth, nor is Bryan made a party. Aside, however, from these considerations, respecting the condition of the claims, there is a difficulty in the way of the complainants, growing out of the character of the party made defendant in these several judgments. The judgments are against the commissioners of Williams county; not against a “person,” in the common acceptation of this word, which' is used in the statute above referred to, nor against private corporations; but against a public body, capable, it is true, of suing and being sued, but created nevertheless for no private purpose; representing the county indeed, but employed to act solely for the public interest. The county which has been denominated a quasi corporation, is the real defendant that must pay these judgments. Now, a county, with all its offices, is a necessary organization for political purposes, under the government of the state. Its officers all take an oath to perform their official duty, which is in each case circumscribed and defined by public law. It can, with its funds, raised by taxation or otherwise, construct and 'own, whenever it may be required within its limits, a bridge, a court house, public offices, jail or poor house; but with reference to none of these is it treated like a private person. For though there is no exemption by any legislative act, that I am aware of, who supposes that such property, like that belonging to individuals, can be sold upon execution at law ?

There is reason for believing that this provision to reach equities, found in the 16th section of the chancery act, (Swan 704,) was not supposed, when it was inserted in the act, to embrace such an organization as one of the counties in the state, and that the term “ person,” used in the law, if it had been supposed to extend so far, would not have been employed there without limitation. The legislature has, from the beginning, always had under its eyes these great divisions of the state; granting to them all the powers they possess, and at various times limiting or extending these powers as the benefit of their inhabitants separately, or the interest of the state at large, required. Counties have been compelled to erect buildings, and to engage in other expensive works, when they had no funds to make the payments required. They were obliged, therefore, in such cases, to procure the work done upon the credit of the county, and to issue evidences of the debt in the shape of county orders. At the time when they were contracting the debt, there was a law in force restricting the power of taxation within defined limits; a very proper and necessary law, it may be admitted, but one which by its operation rendered it in many cases impossible to pay the debt for several years to come. Contractors, however, in such cases, knew the value of the article to be received in payment for their work, and fixed their prices accordingly, and parted with these evidences of debt to purchasers who took them at a discount. Looking at the government of the counties, the whole of the legislation by which their duties, rights and powers have been all minutely regulated, it is obvious that they could not have been intended without being particularly named in a law, passed and required to operate so extensively upon individual and private interests. Further, in claims against individuals, there is danger, from delay or fraud, of ultimately losing the debt; the claims against a county must at some day be paid, and the interest constantly accumulating, must in the end be paid. The public interest requires that they should be paid, but without oppressive taxation and without sacrifice. To attend to this service, as well as to superintend all the other interests of the county, officers are appointed who are sworn to a faithful discharge of their duty, and that duty pointed out by a public law, which is known to all the other citizens of the county, or may be so known. Thus everyone may be as familiar with the condition of the finances and of the concerns of the county as the officers themselves. There is no need of any bill of discovery against these officers, no necessity of calling in the aid of courts, except to compel them to such a compliance with their duty as is pointed out in the law. To allow the interference claimed by this bill would serve only to endanger the plan for the government of the countiesl And whether we look at the policy likely to influence the action of the legislature upon this subject, or the principle which’ought to govern this court in the exercise of its general chancery powers, the same result will be arrived at in the present case.

To the powers of the court in its jurisdiction at law, frequent appeals have been made, to coerce public officers to the discharge of their duty. Not so to its chancery jurisdiction. Yet in the history of the counties of the state, many of them have been embarrassed and unable for years, and probably all of them for a considerable period of time, to pay off their debts. It has hardly been the sense of the profession, that a bill in chancery could be maintained to seize upon claims and dispose of them as contemplated by this bill. If it had been so, a solitary case would not, at this late day, have found its way for the first time upon our docket.

The court is of opinion that neither by the section of the statute which has been considered, nor by virtue of its general chancery powers, can relief be granted to the complainants. Their bill must therefore be dismissed.


text:
    Charles B. Huber et al. v. Sayres Gazley and another.
    A tract of laud, designated in the plat of a town laid out in 1796, as the “ public square,” was thereby dedicated to the use of the town, and no subsequent ■disposition made of it by the original proprietor can affect such use.
    A person in the possession of said laud, deriving title under the original proprietor, has no lien upon the land for the consideration money, or improve- • ments.
    This is a bill in chancery, reserved in Clermont county.
    The bill in this case sets forth that the complainant, who sues for himself and other owners of real estate in the town of Williamsburgh, in the county of Clermont, is seized and possessed of 'Sundry lots of land in said town, designated on the plat thereof as in-lots numbered 323, 325, 329, 330, 331, 332 and 333, and situated near to, and one of them immediately adjoining, a tract of land, of about five acres, known and described on said plat as the public square.

    That as early as the year 1796, one William Lytle, who then owned the land, laid out said town of Williamsburgh, and made a regular plat thereof, showing the lots, streets, alleys, etc.; and to render the lots in said town more valuable, and to induce persons to purchase the same, said Lytle, in said plat, set apart, dedicated and appropriated to the public, for the use, benefit and advantage of all persons who might thereafter purchase lots in said town, a certain portion of the land within the bounds of said town plat, and near the centre thereof, containing about five acres; which said tract was then and is now known and described in said plat as the “public square.”
    That said land, thus set apart and dedicated by said Lytle, as such public square, was taken possession of by the people of said town with the full consent and knowledge of said Lytle, and that the inhabitants of said town cut down and cleared off the timber and wood growing on said land, for their common benefit, and then and there used and enjoyed the same for public purposes, in a full and ample manner, under and by virtue of said dedication, for a number of years.
    That said Lytle, from and after the year 1796, sold and conveyed a great number of lots in said town to various purchasers, which lots were sold for a much larger sum, and were, in fact, more valuable on account of the dedication of said ground to public uses.
    That at the time of said survey and dedication, the said town of Williamsburgh was situate in the county of Hamilton, in the northwestern territory; and that afterwards, in the year 1800, the county of Clermont was established, when the said town of Williamsburgh was made the seat of justice for said new county.
    That in the year 1803, and while said public square was in the use and occupancy of the people of said town, in common, the commissioners of Clermont county erected on said public square a court house and jail, and clerk and auditor’s offices for the use of said county; towards the erection of which the people of said town contributed largely in labor, materials, and money.
    That said county commissioners held and possessed said buildings and public square, from the year 1803 aforesaid, until the year 1825, or thereabouts, when the county seat of Clermont county was, by an act of the general assembly of the state, removed from said town of Williamsburgh, and the peo pie of said town then took possession of said public buildings, with the consent of said county commissioners, and used the same, and said public square, for many years, for public pur poses.
    That the defendants, Sayres Gazley and Adam Walker, have usurped and taken the entire and exclusive control and posses sion of said public square, and claim to hold title to the same, and the buildings thereon, by virtue of some right derived from the said William Lytle, and refuse to permit the said square and buildings to be used by the people of said town for public purposes, in accordance with said dedication so made as aforesaid by the said William Lytle, in the year 1796.
    The bill prays for an injunction against the defendants, and that a decree may be made declaring the title, etc.
    Since filing the original bill, the town of Williamsburgh has been incorporated, and the corporate authorities are, on their own application, made complainants.
    The defendant Gazley has answered. He denies knowledge of complainant’s rights, and requires him to prove his case: Denies that any dedication was ever made for the benefit of the town or the purchasers of lots therein. He claims that when the county seat was fixed at Williamsburgh, General Lytle dedicated the five acres in question to the county, for public build* ings, for so long a time as the seat of justice should remain there, and no longer: And refers to the plat recorded by Lytle in 1815, to show the terms of such dedication.

      That afterwards, in the year 1828, as respondent believes, the county seat was removed from Williamsburgh to New Richmond, and subsequently to Batavia, in said county, where it now remains: That Lytle’s creditors, and Lytle himself, then claimed that by the original terms of dedication, the five acres reverted back to him and became his property.
    That the property was levied upon as Lytle’s property by John Monroe ; that thereupon the commissioners of Clermont county filed a bill in chancery against Lytle and Monroe, claiming that the land belonged to the county by virtue of the original dedication made for the benefit of the county, and the convenience of the citizens of said town of Williamsburgh; which bill was answered by Monroe and Lytle, and, at the May term of the supreme court for Clermont county, A. D. 1829, said bill was dismissed at the instance of the complainants.
    That subsequently the property was conveyed by said Wm. Lytle to the bank of the United States; that said bank brought an action of ejectment, and recovered possession, and finally, on the 16th February, 1846, for the consideration of $450, sold and conveyed the same to the respondent.
    He insists that, at the time of receiving his deed, and paying the purchase money, he was ignorant of the claim of the people of the town, or of any other person having any right or title to the land, except the bank, and claims to be protected as an innocent purchaser without notice. He says he has expended large sums of money in improving the property, and no person ever remonstrated with him for so doing, and no one ever intimated that the town or any citizens thereof claimed any right or interest therein.
    He insists also upon the great lapse of time, since the rights of complainant accrued, as a bar to the relief sought by the bill.

      Norris Sf Lowe, for complainants.

      Charles Fox, and Shields Noward, for defendants.
    For the defendants it was contended that the only authoritative, conclusive dedication of the land in controversy, was in 1815, and then the dedication was for county purposes, and that consequently it reverted on the removal of the county seat. Without this proof, it was apparent such was the original dedi cation, a3 was evidenced hy the occupation of the premises foi county purposes only, and that in the absence of written evi dence, user, with the knowledge and consent of the donor, was the best evidence the nature of the case admitted of. They cited the following authorities: City of Cincinnati v. White, 6 Pet. Rep. 437; State v. Trask, 6 Ver. Rep. 367; Wright’s Rep. 150: 1 Campb. Rep. 262; 6 Ohio Rep. 303; Greenl. Ev., sec. 662; McConnell v. Lexington, 12 Wheat. Rep. 582; 5 Conn. Rep. 309; Pool v. Huskisson, 11 M. &. W. Rep. 830; 8 Adol. & Ellis’s Rep. 99; 2 Pick. Rep. 51; 7 Ohio Rep. 88, 221; 5 Watts & Sarg. Rep. 141; 17 Pick. Rep. 164; 2 Hill. Dig. 42.
    The defendants further contended that the complainants were barred by lapse of time, and to this point cited Rowland v. Rowland, 8 Ohio Rep. 41; Paine’s Lessee v. Skinner, 8 Ibid. 165; 9 Ohio Rep. 178; 10 Ohio Rep. 24, 524; 11 Ohio Rep. 61. They also claimed payment for the consideration money, and for improvements; and cited 1 Ohio Rep. 523; 3 Ohio Rep. 333; 9 Ohio Rep. 49.
   Spalding, J.

The evidence in this case shows very conclusively that when the town of Williamsburg!) was laid out by Gen. Lytle in 1796 or 1797, the ground in controversy, consisting of about 5£ acres, lying in an oblong shape, was left entire and undivided, near the centre of the town, and surrounded on all sides by streets and village lots. The plat of the town was undoubtedly made out at the time, as many ancient deeds, brought forward as exhibits in the cause, refer to it in direct terms; but as there was then no law in existence requir ing town plats to be recorded, it is lost sight of, in the evidence, for many years. _ .

Perhaps the first authentic information in regard to said orig inal plat, is to be derived from the deposition of Gen. Richard Collins, who testifies that in the years 1813 and 1814 he was clerk to David C. Bryan, the recorder of Clermont county, and was himself then familiar with the records of said county — that his attention was called, in 1814, particularly to a plat of the town of Williamsburgh, found in one of the first books of records of deeds. This plat, he says, rvas on a separate sheet of paper, and only fastened into the book. It was then generally recognized as the true plat of the town. He says further, that he has recently seen the same plat, as he believes, in the office of the recorder, and it .presents the same general appearance as when he saw it in 1814.

With the exhibits in the ease, we find a copy of a pla.t of Williamsburgh, certified by the recorder to be “a copy of a plat in deed book C, as found between the 1st and 2d pages of said book, stitched in said book.” This is in all probability the first plat of the town, as it unquestionably is the one examined by Gen. Collins in the year 1814. It has the lots all numbered, the streets and alleys fairly displayed, and the words “ Public Square ” written upon the space representing the oblong piece of ground. It- will be borne in mind that this plat, if it be the original plat of Williamsburgh, was made in 1798 or 1797.

The first law on the subject of town plats was enacted by the territorial legislature, Dec. 6,1800, and took effect on the first day of May, 1801.

By the first section of said act, the original proprietors of such towns as had been before laid out within the territory, were required, within 'one year from the day when the act should take effect, to cause a true map or plat of such town to be recorded in the recorder’s office of the county, under a penalty of one thousand dollars ; but no acknowledgment or even signature on the part of the proprietor was requisite. The same act provided that plats of towns, thereafter to be laid out, should be signed and acknowledged by the proprietor, before being admitted to record. The latter provision was substantially re-enacted by the state legislature in 1805, and remained in force until after the plat of 1815 was put on record. The provision first above cited, was dropped from the act of 1805.

It will be seen hereafter that Gen. Lytle, in a note appended to the plat of 1815, distinctly admitted that “ the plat of the town had been before recorded, in due season, agreeably to law.”

It is fair to presume then, that, after the act of 1800 took effect, and within the time that would save him from the penalty, Gen. Lytle placed in the recorder’s office of Clermont county the original plat of his town, or a copy thereof, for record. This plat was sewed into the record book, in conformity with a practice which obtained in many parts of the State in its first settlement, and has thus been preserved to this day.

If this be a just conclusion of fact, the law of the case is settled by repeated decisions of this court: 6 Ohio Rep. 298; 7 Ibid. 217, and 9 Ibid. 80.

The land in controversy was dedicated to the use of the inhabitants of Williamsburgh and for a public square,” when the town was first surveyed and platted. The use vested at the instant the first lot, designated upon the plat, found a purchaser. Whether the fee passed from Lytle or not is immaterial. If it remains vested in Lytle’s heirs or assigns, they will be decreed fo hold it for the benefit of the town of Williams-burgh, to be used for a “ public square,” according to the original intention and dedication of the proprietor.

At the time when this land was thus dedicated to the public use, Clermont county had no existence, and therefore the claim that Gen. Lytle originally designed it as a site for county edifices so long as Williamsburgh should remain the county seat, has no foundation in fact. It is true, that some four years after this town was laid out by Lytle, with the public square marked distinctly upon the plat, Williamsburgh was made the seat of justice of the new county of Clermont. Up to this time, it is not reasonable to suppose, that any strongly marked evidence of user by the people of the town would be found.

It is in evidence, however, by the oath of A. McLain, that as early as 1799, before the county of Clermont was established, this ground was called the public square. There is some other testimony tending to show that the first inhabitants of Williamsburgh regarded this tract so much in the light of public property, that they were accustomed to enter and cut fire wood upon the premises at their own convenience. I know not what other evidence of user we should look for in a wilderness town. Surely the people were not required, thus early, to fence in order to preserve their public square. As well might we look for graveled walks and artificial fountains as the evidence of user.

In 1801, a log jail was erected on this public square for the use of the county, and from this time until the removal of the seat of justice in 1825 or ’26, the ground was used mainly for county purposes. It is insisted by defendant’s counsel that this use-of the ground by the county, was adverse to the claims of complainants, and that they are barred by the law of limitations. I cannot so regard it. There seems to be nothing inconsistent in the respective claims of town and county. The people of the town require that the 5¿ acres of ground shall not be subjected to the control of any individual as private property. They are content, however, that the county shall have an easement therein; the right to keep a court-house and jail upon the premises so long as their town shall enjoy the immunities of a county seat. . In the Town of Lebanon v. Commissioners of Warren County, 9 Ohio Rep. 80, this court expressly decided that “ the actual occupation, of the lots by a court-house and jail is not inconsistent with the use of the property in the town; for the location of a court-house and jail on a public square, transfers no property, but is an easement only, and the town may reclaim its rights when the county occupation shall cease.”

■ But it is insisted that the original proprietor made, acknowledged, and caused to be recorded, a true plat of his town of Williamsburgh, in pursuance of the statute then in force, on the 16th day of November, 1815.

It is true that a plat of this date was put on record by Gen. Lytle, and if we pay heed to the testimony, we need not mistake his object. The seat of justice had been maintained at Williamsburgh for fifteen years. Gen. Lytle had been enabled thereby to dispose of many of his town lots, but many more remained unsold. Substantial county buildings had been erected on the public square. Efforts were already being made to procure a removal of the county seat. What more natural than that Gen. Lytle should endeavor to interpose, as an obstacle in the way of such removal, the notion that, in such an event, the public square, with the buildings thereon, would revert to him ? But so far from militating against the rights of the town, the record of this last plat has furnished evidence which renders them secure.

It purports to give the lots,, streets, alleys and public grounds” in Williamsburgh. So far as it goes, it compares exactly with the old plat found stitched into book C, with this only exception, that the ground in controversy is marked therein “ public ground,” instead of public square,” as in the old map. The number of lots is considerably reduced, and this is accounted for in the evidence, that some time after the town was laid out, many of the lots were vacated by the proprietor.

In his certificate attached to this plat, Gen. Lytle says, “ the square marked ‘ public ground ’ is reserved for county purposes ; that is, for the erection of public edifices thereon for the use of the county, and such other improvements of taste and utility as the legal authorities of said county shall deem expedient to the use of said county for the purposes aforesaid. Provided, nevertheless, that if the seat of justice should at any time hereafter be removed from said town, and that it should not continue and remain established as the county seat of said county of Clermont, then, and in that case only, the said square or public ground, so reserved for the purposes above described, shall be considered as actually vacated by the county, and shall revert, with its appurtenances, to me as original proprietor, and as though no such grant had ever been made.”

To this certificate Gen. Lytle has appended the following:

N. B. It may be necessary to add by way of further explanation, that the plat of this town has been before recorded in due season, agreeable to law, but it having been suggested by some meddling person that the first record was vague and unsatisfactory, the above is now placed on record to remove all doubt or ambiguity.”

Here we find the important; admission, made by Gen. Lytle, that the plat of this town had been before recorded in due season, agreeable to law. If in due season and agreeable to law, it must have been done after the act of 1800 took effect, and within twelve months thereafter, to wit, anterior to the month of May, 1802. It is not pretended that the records of Clermont county show any plat of Williamsburgh anterior to the plat of 1815, save only the plat stitched in book C, and first seen in the years 18111,1814, by Gen. Richard Collins.

If 'this ground was dedicated by the proprietor in 1796, to the use of the town, then it follows that no subsequent act of his can control that use, and the limitations and reservations in the plat of 1815 are of no force whatever. In the Town of Lebanon v. Commissioners of Warren County, already cited, the court held that the dedicating act was the registry of the town plat in 1803. The use -was limited, and took effect then; and that a subsequent conveyance of the donors affected neither the trust nor the title.

Recognizing as we do the soundness of the decision made in Le Clercq et al. v. The Town of Gallipolis, 7 Ohio Rep. 217, we have no hesitation in saying that the complainants, owning lots in the town of Williamsburgh adjoining the alleged public square, may sustain their bill in chancery to establish the dedication and preserve the public use. The defendants are not warranted by the facts in setting up a want of notice, and we know of no rule which will justify us in charging upon the public square the consideration money which they paid or the ex pense which they have incurred in making improvements thereon.

The complainants will take a decree declaring the use in the town of Williamsburgh, and the injunction is made perpetual


text:
    Henry Coil v. James M. Willis.
    Such statements must he contained in the record as will show, affirrwfively, tha error complained of. Error will not be presumed.
    In a contract for the sale of corn, with no stipulations to the coutra'y, payment is by law to be made on delivery, and no distinct proof is needed of time, place, or manner of payment.
    This is a writ of error to the Supreme Court of Fayette county. The question decided sufficiently appears m the opinion of the court.

      R. Robinson and W. Rush, for plaintiff in error.

      John L. Green and James U. Thompson, for defendant.
   Avery, J.

' The original action was assumpsit, commenced in the court of common pleas of Fayette county, by Willis against Coil. His declaration contained several special counts, together with the common counts. The first is, in substance, that on the 1st of October, 1847, he agreed to buy of Coil, who was defendant in the original suit, 10,000 bushels of corn, upon the following terms, that is to say: the corn to be delivered to the plaintiff in the shock, in the fields of the defendant’s farm in Fayette county, to be fed to the cattle of the plaintiff on the said farm, the defendant to assign certain lots on the farm, in which the cattle were to be kept, and the corn was to be fed to them, and the corn was to be delivered to the ] laintiff in the field in shocks, at the usual time for commencing to feed cattle, for the purpose of fattening them for the market; the plaintiff to have the use of certain lots of ground for the purpose contemplated, till the 10,000 bushels of corn were consumed by his cattle, and to pay the defendant eleven cents a bushel for the corn at the time of delivery. The quantity of 10,000 bushels was to be ascertained by averaging the corn in the shocks as they were standing in the fields. There were, the averments, amongst others, that the defendant promised to deliver the corn at the time and place, and in the manner specified in the contract, and to furnish the lots for the purpose stated ; of the plaintiff’s offer to perform the contract according to its terms, and the defendant’s refusal on his part to comply. The cause of action is the same, though stated with variations, in the different counts.

On the trial in the court of common pleas, upon the general issue, judgment was given for the plaintiff. The defendant filed his bill of exceptions, and took out his writ of error. The case in error was heard by the Supreme Court at the April term last, in Eayette county, when the judgment of the common pleas was affirmed ; and the present suit is prosecuted to reverse the judgment of the Supreme Court.

At the trial in the common pleas, where the case was submitted to the court without a jury, testimony in behalf of the plaintiff was given by a witness of the name of John Hays, though an objection was taken to his admissibility by the defendant, on the ground of his being a partner of the plaintiff. The defendant also objected to the further progress of the trial, because a partner who ought to have been made a plaintiff, was not joined ; and further, after the evidence in chief of the plaintiff closed, the defendant moved the court to overrule the evidence as to the special counts. In the three particulars specified, the court decided adversely to the claim of the defendant; and the only questions which require to be noticed in the case, will be the correctness of the ruling upon each of these points. The two first errors alleged present for determination only a question of fact, viz: whether the first named witness, Hays, .was a partner of the plaintiff. The deposition of John Law is made a part of the bill of exceptions, and relied upon by the defendant to establish the fact of partnership. This deposition has been critically examined by the counsel, with a view to-discover in its various details enough to support the conclusion drawn by him, that Hays was a partner of the plaintiff. The court of common pleas on the trial decided that Hays was not a partner of the plaintiff at the date of the contract in the declaration set out; and if the record before us contains a statement that the only evidence upon which they founded that judgment was the deposition of Law, then we shall be called upon to examine also the same deposition. But if from the face of the record it appears that other evidence upon the same subject may have been before that court, it will be of no use to look into the deposition, because we cannot say that we have all the proof. We never presume that the court committed an error ; the record must show it affirmatively. The bill of exceptions touching this point is as follows: “ Upon the trial of the above cause the plaintiff, in order to support his action, offered as a witness John Hays, who was the most material witness in the cause, to whose admissibility as such witness the defendant objected, for the reason that the said witness and the said plaintiff were in partnership in the subject matters of said suit, and that being such partner he could not be a witness, nor could the action be sustained on the ground of its being in the name of Willis alone ; and to show that said Hays was such partner the defendant relied upon the evidence as contained in the deposition of John Law, taken in the cause by the said plaintiff, which deposition is -referred to as containing said evidence, and made a part of this bill of exceptions for that purpose; but the court, after examining said deposition so as aforesaid relied upon by said defendant, was of opinion that said Hays was not a partner at the time of contract, admitted said Hays to execute a release of his present interest in this suit, and then permitted said suit to progress and the said Hays to give testimony.” There is here no statement that this deposition was all the evidence given as to the competency of Hays. Such a statement, if the facts were so, ought to have been distinctly made, or such language used as would be equivalent to it. It is set forth that the defendant relied upon the evidence in the deposition, and that the court, after examining the deposition, was of opinion that Hays was not a partner. This court may think it probable that there was not any other evidence. But that is not sufficient. And taking such a view of this bill of exceptions, the judgment cannot be reversed upon any interpretation that may be given of that deposition.

The second exception taken to the ruling of the court must. necessarily fail with the first. The only question there raised is also as to the fact of partnership, and if the court did not err in refusing to exclude the witness for incompetency, it could not have erred in refusing a non-suit; if the witness was not found to be a partner, there was no error in omitting to join him as a plaintiff in the action.

The 'third and' only remaining cause for reversing the judgment requiring attention is, that the court did not overrule the evidence as to the special counts, because no evidence had been given as to the time, place or manner of payment. The answer of the common pleas was that “ the intendment of law satisfied the allegation as to time and place of payment.” It seems to us very clearly that there was no error in this decision. The contract is for the sale of 10,000 bushels of corn, and in the absence of an express stipulation to the contrary, the law itself fixes the time, place and manner of payment; the property purchased must be paid for on delivery and in money.

Judgment affirmed.


text:
    Jane Henry and another v. The State.
    Discharging a gun, loaded with powder and wadding- only, at a person so fai distant that no injury would probably result from the act, is not a violation of the 24th section of the act for the punishment of crimes.
    This is a writ of error to the Court of Common Pleas of Stark county.

      Belden $ Letter, H. JP. Dunbar, and JR. JET. Folger, for ' plaintiffs in error.

      JHJenry Stanbery, (attorney general,) and 8. Meyer, (pros ecuting attorney,) for defendant.
   Spalding, J.

At the October term of said court, A, D. 1849, the plaintiffs in error were indicted, under the twenty-fourth section of the act for the punishment of crimes, for maliciously shooting at one Jane E. Britton with intent to wound, etc.

The indictment contains twenty-four counts, but inasmuch as the jury returned a verdict of guilty upon the second count only, our attention will be confined to the charge as it is in that count set forth, to wit: “ That the said Jane Henry and Martin T. Britton, on the eighteenth day of October, in the year eighteen hundred and forty-nine, at the county of Stark aforesaid, with a certain gun maliciously did shoot at one Jane E. Britton, with intent her the said Jane E. Britton then and there, and thereby, to wound, contrary to the form of the statute,” etc.

After verdict a motion for a new trial was submitted on the ground, among other things, that said verdict was against the evidence. Said motion having been overruled, and the ruling of the court in that behalf excepted to, with the whole testimony spread upon the record, we are called upon to say whether the proof will warrant a jury in finding a verdict of guilty.

It is true, that exceptions are taken to the sufficiency of the count on which the verdict was returned, as well as the charge of' the court. But, however much we may have desired that the pleader had been more explicit in stating the offense, we deem it advisable to let the case turn upon the weight of the evidence rather than upon any supposed defect in the pleadings or any alleged error in the instructions given by the court to the jury.

On the trial a mass of testimony was introduced, from which we gather the following facts :

The plaintiffs in error were living together in adultery at the house of Britton. The prosecuting witness, claiming to be the1 wife of Britton, became involved in a street quarrel with her husband’s concubine. The women were on opposite sides of a street four rods in width. After saluting each other with many opprobrious epithets, and assaulting each other with stones and gravel, Jane Henry ran into the house of Britton, and very soon returning into the street with a fowling piece, discharged, the same towards the person of Mrs. Britton, some fifty feet distant, and then ran back. There was evidence tending to show that Britton, the husband, put the said gun into the hands of Jane and told her to blow his wife up.

Mrs. Britton sustained no injury. In giving her testimony on the trial she said,

I next saw her (Jane Henry) come out with a gun. I had went into Kissel’s house at the time, and was looking out of the-door. I came out of the door and faced her ; ‘opened my cardinal and told her to fire away. * * * The gun made a. noise as if it was loaded, though I was not hit by any thing discharged from it. When I first saw her I did not think the gun was loaded, or I would not have opened my bosom and moved towards her.”

It was proved that the gun in question had been left at the house only two hours before, by one Zachary Chorpening, who-testified that he borrowed Britton’s “ double-barrel ” and left his own gun there until he returned from hunting. That four or five weeks before this, he cleaned his gun and put in powder and wadding, and was going to fire it off, but his wife, who was sick, objected to his shooting, and he put it aside with the charge in, and it remained in that state until he took it to Brit* ton’s house.

For the purposes of the trial, it was admitted by the prosecuting attorney that one James Watson, if present, would testify that said gun so used by said Jane Henry, was loaded with a light charge of powder and wadding of tow, and could not have effected any injury in the hands of either of the defendants.

When the general assembly saw fit to make imprisonment in the penitentiary the penalty for maliciously ■ shooting at a person with intent to kill or wound, no children’s play was -contemplated as demanding so great severity of punishment True, the offense may be found complete, and the culprit re ceive the whole penalty of the law, without the infliction of the least injury upon the object of his malice. But then, if the intended victim shall have escaped harm, he must have been in peril of “ life, limb, or body,” else the punishment is altogether disproportioned to the offense.

In the King’s Bench of England, the following ruling was held correct. Where an indictment alleged that the defendant shot at the prosecutrix with a pistol loaded with gun-powder and other destructive materials, and it appeared that the pistol contained no ball or shot, but gun-powder and wadding only, the judge told the jury, that whether the pistol was loaded with gun-powder and ball, or other destructive materials, or with gunpowder and paper only, if the prisoner fired it so near the person of the prosecutrix, and in such a direction as that it would probably kill her, or do her some grievous bodily harm, the ease was within the statute. Rex v. Kitchen, R. & R. 95. See Arch. Cr. Pl. 350.

We recognize this as law, and we hold the converse of the proposition to be true, that when the defendant shot at the prosecutrix with a pistol loaded with gun-powder and wadding only, and the prisoner fired it at so great a distance from the person of the prosecutrix that it could not probably do her the least bodily harm, the case was not within the statute.

In the case under consideration the gun contained a slight charge of powder with wadding of tow. It was discharged by one woman at the person of another, with a distance of fifty feet intervening, and no probable injury could result from the act.

In our opinion the case is not within the statute. The judgment of the court of common pleas is reversed.