text:
    Hossler, Executor, v. Trump.

      Trial for services rendered — In action for quantum meruit —' Plaintiff shows facts and nature of service — Case for jury — Although no witness ,e.vpressed opinion of value of service.

    When, upon the trial of the general issue, in an action upon a quantum meruit for services of a domestic character, the plaintiff offers evidence showing the facts from which the promise to pay may properly be inferred, and also showing the nature and extent of the services rendered, the case should be submitted to the jury although no witness expresses an opinion as to the value of the services.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Stark county.
    The defendant in error brought suit against the plaintiff in error as executor of the last will and testament of John J. Trump, deceased, upon an account of several items, alleging the indebtedness of the testator on said account and the presentation thereof t® the executor and its rejection by him. In his answer the plaintiff in error admitted his representative character and the presentation and rejection of the claim, and denied all the remaining allegations of the petition. The question for decision arises upon two items of the account which are as follows :
    “For nussing, bathing and caring for said John J. Trump from June 3rd, 1890, to November 3rd, 1892, and for washing his clothing and bed clothing and mending and caring for his clothes generally during said time, and in taking care of said John J. Trump during said time in the sum of $3.00 per day, 875 days..........$2,525 00
    Interest on same from November 3d, 1892.. $542 75” In support of his claim upon these items the plaintiff introduced evidence tending to show the testator’s legal obligation to pay for the services, and showed with much particularity and detail the extent and character of the services rendered, it being such as would be required by one afflicted with paralysis and the infirmities of age, being rendered day after day and being more or less regular and extensive, as the fluctuating condition of the testator required. But no evidence was offered tending to show that the value of the services had been fixed by agreement, nor did any witnesses give to the jury an opinion as to t'heir value.
    Upon this state of the issues and the evidence the trial judge directed the jury to return a verdict for the defendant as to these items. The plaintiff’s motion for a new trial was overruled and there was a judgment upon the verdict. In the circuit court the judgment of the common pleas was reversed for error in that instruction.

      Day, Lynch & Day, for plaintiff in error.
    The plaintiff claimed that he had proof ready to show the value of the services. Why was it not, therefore, incumbent upon him in the proper stage of the case, to show the value of the services in question? It is true, that the jury will be expected in considering evidence, to apply to it their general knowledge of such services, but the jury can not supply from thek’ own minds that which was incumbent on the part of the plaintiff to furnish. We believe that the great weight of authority fe in support of our position that it was incumbent upon the plaintiff at the trial to prove the value of the services which he alleged he performed for the decedent. Johnson v. Speigle, 4 C. C., 388; The Brabo, 33 Fed.,884-6; Cushman v. Merkle, 3 Bosw. (N. Y.), 402; Jenks v. Mining Co., 58 Ia.,549; Wyckoff v. Taylor, 43 N. Y. S., 31; Sunford v. Railway, 40 Mo. App., 15; 1 Wharton Evidence, Sec. 602; Starkey Evidence, Sec. 735.
    In the case of McIntyre’s Executor v. Garlik, 8 C C., 416, a divided court followed a rule which would seem to be somewhat in conflict with our position upon this question. An examination of this case will, however, disclose that the services performed were at irregular intervals, and of such an uncertain nature that, as the court well said, “There could not be a customary rate for such irregularly performed services.” The case at bar, however, does not present the difficulties suggested in the McIntyre case, since the services were susceptible of clear proof as to their value, as will appear from the offer of the plaintiff to prove their value after both parties had rested and the charge been-given as before stated. Machader v. Williams, 54 Ohio St., 344.
    It has been the universal practice for the plaintiff in cases of this character to show by proof; first the nature of the service's performed, and then the reasonable valise thereof. Persons who have rendered such services or have had experience in caring for the old and feeble and in securing attention of the nature set forth in the third item of plaintiff’s account, have much better means of knowledge as to the value of services of this nature than the jury might possess in common with other persons; while the jury might not be absolutely bound by the testimony of witnesses as to value, yet proof of this nature is essential to give the jury at least some idea of the value of the services in question. 2 Jones on Evidence, 389; Rogers on Expert Testimony, p. 386; Wallace v. Schaub, 32 Atl., 324; Williams v. Brown, 28 Ohio St., 547.

      Welly & Alba-ugh, for defendant in error.
    The jury had before them the kind of services rendered, the time it took to render them, how they were in fact rendered, and what agreement there was, if any, to pay therefor, and were therefor competent to judge of their value. How could any expert fix any money value, and how much better would his judgment be than that of the juror. It must come only from his general knowledge of that kind of work; that knowledge the jury had.
    The jury is presumed to know the value of such services as well as the witnesses. Upon all matters upon which the jury are presumed to know as much as the witness, expert testimony is not admitted.
    Because courts must act, if governed by reason and common sense, upon the presumption that jurors are acquainted with the ordinary transactions and business of society; and perhaps no one thing is so well known as the value and prices of labor. Jurors wall be influenced by their own knowledge, in coming to a conclusion, and it is right they should be.
    This, we contend for, is the rule in Ohio, and our court has substantially approved of this doctrine, and of the province of the juror to fix the value of the ordinary tilings of life, when all the .facts and circumstances are clearly before him. French v. Millard, 2 Ohio St., 45; Railroad Co. v. Shultz, 43 Ohio St., 282; State v. Beal, 37 Ohio St., 108; Brown v. Moore, 22 Mich., 254; White v. Herman, 51 Ill., 243; Pa. Ry. Co. v. Bunnell, 281 Pa. St., 414; Vol. 5 Am. & Eng. Ency., 65; Mattox v. Lyman, 16 Vt., 113; Baum v. Winston, 3 Met. (Koi.), 177; 19 Am. Dec., 103; 1 Sutherland on Damages, 803; Head v. Hargrove, 105 U. S., 45; Nathan v. Kinson, 4 Kan., 211; Patterson v. Boston, 20 Pick., 159..
   Shauck, O. J.

That the issues joined- cast upon the plaintiff below the burden of proof is not doubted by his counsel. The question presented and discussed is: Should the jury have been permitted to estimate the value of the services from their character and extent, unaided by the opinion of a witness touching such value? It was incumbent upon the plaintiff to present evidence tending to establish the facts from which the promise to pay for the services would properly be implied as well as those which would show the character and extent of the services on account of which a recovery was sought. With respect to such facts, distinguishing them from matters of opinion, the jury cannot be permitted to make any finding favorable to the plaintitff, unless it was within the probative effect of evidence offered. So far at least we have departed from the jury of the vicinage whose personal knowledge of the facts in issue was a substitute for the testimony of witnesses. The substance of the argument in support of the instruction given is that the rule recognized as applicable to facts of such character should extend to questions of value, which must remain matters of mere opinion, however numerous may be the witnesses who testify concerning them. The soundness of this position may be tested by supposing that the plaintiff, instead of alleging that these services were worth three dollars per day, had alleged that they were worth one hundred dollars a day, and had introduced a witness who, under oath, expressed the opinion that they were of that value. Would the jury, in the absence of other opinions from witnesses, have been required to return a verdict for that amount? No one would suppose that they should adopt an opinion so variant from common knowledge. By what process of reasoning could we be conducted to the conclusion that that is indispensable evidence which may be wholly disregarded when given? If cannot be supposed that a jury of twelve men would be required to perform the elementary operations in addition and division by which the average opinion of witnesses would be ascertained. The jury in such a case may reject the opinions of witnesses, if they deem them unreasonable, because the facts touching the character and extent of the services which the plaintiff is required to prove, and which in fhe case before us were proved, are themselves' the subject of consideration by the jurors with a view to the exercise of their own knowledge and the formation of their own opinions as to their value. They may be used to correct the opinions of witnesses as to value, because they are themselves evidence of value. In a case of this character the witness, if placed id possession of the facts correctly assumed in a question, is in no better position for forming an opinion than that occupied by the jurors. We are not without the aid of adjudications upon the question presented. The case of Head v. Hargrave, 105 U. S., 45, was an action for the value of professional services rendered by an attorney-at-law, and upon this question Justice Field said: “It was the province of the jury to weigh the testimony of the attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services. To direct them to find the value of the services from the testimony of the experts alone was to say to them that the issue should be determined by the opinions of the attorneys and not by the exercise of their own judgment of the facts on which those opinions were given. * * * So far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinions expressed and from which only in that way they could arrive at a just conclusion. While they cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of the inquiry. * * * Other persons besides professional men have knowledge of the value of professional services; and, while great weight should always be given to the opinions of those familiar with the subject, they are not to be blindly received, but are to be intelligently examined by the jury in the light of their own general knowledge; they should control only as they are found to be reasonable. The judgment of witnesses as matter of law is in no case to be substituted for that of the jurors.”

Since this view of the subject has been considerately taken where the services were of a professional character, it should of course prevail in a case where, as here, the services are of such a nature that an intelligent opinion touching their value may be formed from common knowledge. The same view has been applied in cases of the precise nature of this. Craig v. Durrett. 1 J. J. Marsh, 336; Baum v. Winston, 3 Met. Ky., 127. It derives support from other cases cited in the briefs of counsel for the defendant in error;

The argument and citations in support of the instruction given fail to distinguish between facts in issue and opinions founded upon facts proved. The conclusion intimated will not make the verdict final, for the evidence as to the extent and character of the services rendered would come within the consideration of the trial judge on a motion for a new trial, and be presented to reviewing courts by a bill of exceptions. If the excellent opinion by Judge Laubie in McIntyre's Executor v. Garlick, 4 Circ. Dec., 429, 8 C. C., 416, had appeared in these volumes there would have been no occasion for this report

Judgment affirmed.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    The State of Ohio on Relation of the Interstate Savings Investment Company v. Matthews, Superintendent of Insurance, Etc.

      Deposit required of bond and investment companies — Act of April 25, 1898 — Does not apply to companies placing or selling securities, etc.

    The act of April 25, 1898 (93 O. L., 401), does not require that the sum of $25,000 to be deposited with the treasurer of state by a company doing in this state the business of placing or selling securities, etc., shall be derived wholly from its capital stock.
    (Decided February 20, 1900.)
    In Mandamus.
    The relator alleges that it is a corporation duly organized under the laws of West Virginia; its capital stock is $150,000 of which $50,000 is preferred and $100,000 common. Of the $50,000' preferred stock $2J,600 has been issued and the money realized thereon is in the possession of the company. Of the $100,-000 of common stock authorized but $20,000 has been issued and the proceeds thereof paid to the company. Of this amount $10,000 is retained by the company in obedience to the requirement of the laws of West Virginia. On the 28th of May, 1898, the relator deposited $25,000 in cash with the treasurer of the state of Ohio, and this amount, together with the $35,000 subsequently deposited, being ten per cent, of the gross receipts on the amount of business done by the relator in this state, was converted into municipal bonds of various municipalities in this state and deposited with the treasurer of state.
    The defendant refuses to issue a license to the defendant and its agents to further transact business in the state of Ohio according to the provisions of the act “to regulate certificate, bond and investment companies,” etc., passed April 25, 1898 (93 O. L., 401), because the deposit of $25,000 originally made by the relator was not wholly out of its paid-up capital stock, but was in part realized from the prosecution of its business. The question arises under the first section of the act, which is as follows:

      “Be it enacted by the General Assembly of the State of Ohio, That every corporation, partnership and association, other than a building and loan company, doing in this state the business of placing or selling certificates, bonds, debentures, or other investment securities of any kind or description, on the partial ■payment or installment plan, and every investment guaranty company doing business on the service dividend plan, shall, before doing business in Ohio, deposit with the state treasurer twenty-five thousand dollars either in cash or bonds of the United States or of the state of Ohio, or of any county or municipal corporation in the state of Ohio, for the protection of the investors in such certificates, debentures, or other investment securities. And in addition shall, on or before the tenth day of January of each year, deposit with the said treasurer, either in cash or bonds of the United States or of the state of Ohio, or of any county or municipal corporation in the state of Ohio, ten per cent, of the gross receipts on the amount of business done by it in the state of Ohio for the twelve months nest preceding the thirty-first day of December. The said deposit shall be made each year as aforesaid, until the total amount of such cash or bonds so deposited shall be worth one hundred thousand dollars.”
    It is admitted that the amount paid by the relator on account of its business transacted in. the state is in accordance with the requirement of the statute.

      Charles W. Baker, for the relator.

      J. M. Sheets, Attorney General, and J. E. Todd, Assistant Attorney General, for the state.
   By the Court :

In justification of the refusal of the defendant to grant the license it is said that in contemplation of the act the sum of $25,000, constituting the original deposit to be made by the company as a condition to its right to transact business in this state, must be derived wholly from its capital stock, to' the end that the security for investors thus created may be derived wholly from a source other than the means which they deposit with the company. That view might be entitled to legislative consideration, but it finds no warrant in the terms of the statute. They are fully satisfied with the deposit of the $25,000, as was done in this case, without regard to the source from which it is derived.

Peremptory writ allowed.


text:
    Monger v. Jeffries.

      Probate court order removing executor — Cannot be reviewed on petition in error in common pleas court.

    An order of the probate court removing an executor is not the subject of review on petition in error in the court of common pleas.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Warren county.
    On the 4th day of April, 1889, the last will and testament of Christian B. Odell was admitted to probate by the probate court of Warren county, and Joseph H. Monger was appointed and qualified as executor thereof. On the 27th day of May, 1898, Thomas Jeffries, a legatee named in the will, filed a motion for the removal of Monger from his trust for reasons stated in the motion which included those stated in the entry made by the court on the 2nd day of July, 1898, when, upon a hearing, it ordered his removal for the reasons that “the said Joseph H. Monger is guilty of gross neglect of duty in the administration of said estate; that he has not administered the same to the best interests of said estate; and that said Joseph H: Monger is an unsuitable person to administer said trust.”
    A motion for a new trial was overruled and a bill of exceptions taken. Monger then filed a petition in error in the court of common pleas praying for a reversal of the order of removal upon the grounds, among others, that the probate court had no jurisdiction to make the order and that it was not sustained by sufficient evidence. Jeffries thereupon moved to dismiss the petition in error for the following reasons:

      First — Because no substantial right of the present plaintiff in error has been affected by the order of the probate court removing Mm from the trust.

      Second — Because the jurisdiction of the probate court in the matter of removing administrators and executors is exclusive, and error will not lie to review the action of that court, either in removing or refusing to remove which is by the statute committed to the sound discretion of the probate judge.
    This motion was sustained. On petition in error the circuit court affirmed the order of the common pleas dismissing the petition in error.

      Patrick Gaynor and. IF. C. Thompson, for plaintiff in error.
    The probate court can have no exclusive, final or conclusive jurisdiction, except it be so provided by the legislature. Constitution, Art. IY, Secs. 4, 8.
    The exclusive jurisdiction to issue and revoke letters, even though it be final, attaches only when not otherwise provided by the statute. Sec. 524, R. S.
    If a competent person, willing to accept the trust, is named in a will as the executor thereof, the probate court must appoint him as such. Sec. 5995, R. S.
    Certain persons, in a certain order, must be appointed to administer on the estate of a deceased person. Sec. 6005, R. S.; Todhunter v. Stewart, 39 Ohio St., 181; Cobb v. Newcomb, 19 Pick., 336.
    The statute provides the only causes for, and the only manner in which these appointments may be revoked. Revised Statutes, Secs. 5996, 6207, 6108, 6023, Yol. 87, p. 297, and 6047-6049, Yol. 91, p. 96, 6017, 6087, 6178 and 6253.
    Any judgment rendered, or final order made by the probate court, may be reversed, vacated or modified by the court of common pleas. Sec. 6708, R. S.
    An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, or such order in a special proceeding, or upon a summary action, is a final order that may be reversed, vacated or modified. Sec. 6707.

      Whether a right is a substantial right or not does not depend on its financial value, but on the fact of whether it is a legal right and protected by law. Railroad Company v. Sloan, 31 Ohio St., 1; Armstrong v. Brewery Co., 53 Ohio St., 467.
    The appointment carries with it the right to serve and that right cannot be taken away except for the causes and in the manner authorized by laAV, or statute. Woerner, Law of Admin., 2nd ed., Yol. 1, par. 268, top of * pages 570-571.
    This then not being merely a preliminary question, but one going to the foundation of the proceedings in error, the lower courts should have, and this court should now proceed to examine the case on its merits.
    The right to the appointment being guaranteed by the statute the right to administer the trust to the end follows, and it cannot be taken away except as provided by the statutes. Woerner, par. 268-272; A. & E. Enc. of Law, 360 and cases there cited.
    Three questions are presented by the record.

      First — Is the right of an executor to administer upon an estate a substantial right?
    A substantial right means a legal right, one that is protected by law. Armstrong v. Herancourt, 53 Ohio St., 405.

      Second — Has the common pleas court jurisdiction to review on error the action of the probate court in removing an executor?
    The jurisdiction of common pleas courts is not defined by the constitution; they are made capable of receiving any and all jurisdiction that may be provided by law. Const. 1851, Art. IY, Sec. 4; Stevens v. State, 3 Ohio St., 453; Commissioners v. Junkins, 19 Ohio St., 348.
    It is contended by counsel that the jurisdiction of the probate court in matters testamentary is exclusive and conclusive and that its action cannot be review on error, citing R. S., 524, and Gregory, Admr., 19 Ohio St., 357; Mosier v. Harman, 29 Ohio St., 220.
    But this court has denied the authority 19 Ohio St., 357, and limited the authority 29 Ohio St., 220. Society v. Ely, 56 Ohio St., 405.
    Justices have exclusive jurisdiction in certain matters, R. S., 585, and the right to review on error has never been questioned. County commissioners and township trustees have exclusive jurisdiction in road and ditch matters. R. S., 4650, 4677, 4447 and 4511, but error has been allowed. Hoff v. Fuller, 45 Ohio St., 495; Travest v. Frenfrock, 43 Ohio St., 335; Fox v. Kiester, 6 N. P., 216; 8 Dec., 636.
    The records contains all the evidence, and there was no evidence before the probate court to warrant it in removing Monger and in such a case this court should reverse the probate court.- Wooley v. Staley, 39 Ohio St., 354.
    And we therefore present the next question.
    Was the probate court warranted in removing Monger?
    Under the will Mrs. Odell, and Monger was charged with the care and management of the whole estate during the life of Mrs. Odell and at her death, Monger was to sell all of the property and divide the proceeds, and the evidence is that they executed the trust for eight years until the death of the widow. After the death of Mrs. Odell Monger became a testamentary trustee. Veazie v. McGugin, 40 Ohio St., 365; Sowers v. Cyrenius, 39 Ohio St., 29.
    And could not be removed except upon the application of a majority of the legatees and for good cause shown. R. S., 6334, as amended' 90 O. L., 368.

      Brandon & Burr, and Runyan & Stanley, for defendants in error.
    1. The order, the execution of which is sought to be stayed, has actually been carried into effect. In fact, the order of removal was self-executing. The moment the order was made, and entered on the records of the probate court, the powers of ^longer to act as executor absolutely ceased. And further, on the 16th day of July, 1898, said probate court duly appointed W. Gilbert Thompson, administrator de bonis non with the will annexed of Christian B. O’Dell, deceased; who on said day duly qualified and entered upon the discharge of his duties as such administrator and has ever since been and now is, acting as such.
    2. An executor removed cannot litigate the question of his removal, because the order removing him affects no substantial right.

      (a) Error lies only from final judgments, decrees, or orders the determination of which affects a substantial right. Section 6707, Eevised Statutes; Knisely v. State, 3 Ohio St., 508; Holbrook v. Connelly, 6 Ohio St., 199; Hobbs v. Beckwith, 6 Ohio St., 252; Steubenville v. Patrick, 7 Ohio St., 170; Watson v. Sullivan, 5 Ohio St., 42; Braden v. Hoffman, 46 Ohio St., 639; Railway Co. v. Sloan, 31 Ohio St., 1.

      (b) And such order must have been prejudicial to the substantial rights of the plaintiff in error. Scoven v. The State, 6 Ohio St., 288; Baker v. Lawrence, Admr., 27 Ohio St., 418.
    (c) The order of removal affects no property or other substantial right, but merely the administration of the trust. The person so removed is but the appointee of the court, and the only interest he could have under such appointment would be the compensation he might earn in administering the trust.
    3. The probate court, under Art. IY, Sec. 8, of the Constitution of .1851, and Secs. 524 and 6017, Eevised Statutes, is vested with exclusive final jurisdiction over the appointment and removal of executors and administrators. Fraser v. Fulcher, 17 Ohio, 2,60; Gregory’s Admrs., 19 Ohio, 357; Gilliland v. Sellers’s Admr., 2 Ohio St., 223.

      The provisions of Art. Ill, Sec. 5 of the Const, of 1802 are substantially identical with the provisions of Art. IV, Sec. 8 of the Const, of 1851; Sec. 5, Art. Ill of the Const, of 1802.
    Therefore the doctrine of the above cases applies with full force to the decrees and orders of probate courts under the Constitution of 1851, and to the case at bar.
    (а) The history of Sec. 6017 clearly shows that the legislature of Ohio intended to grant probate courts exclusive final jurisdiction of matters purely testamentary. Sec. 23 of the act of March 23, 1840, Vol. 38, Ohio Laws, page 146.
    This act remained in force until the amendment in 1875, Vol. 72, O. L. 174. That amendment simply added to the grounds of removal.
    No further change was made in the law until the act of April 11, 1884, Vol. 81, O. L. 137.
    It appears in this legislation that most liberal and extensive authority has been granted to the probate court in these matters, and the tendency has been to enlarge the power of that court in testamentary matters rather than to restrict it.
    (б) This view receivés strong confirmation from the fact that it is the commonly accepted practice in all the courts of Ohio, that neither appeal nor error will lie from the orders of the probate court in matters purely testamentary. Estate of Still, 15 Ohio St., 484; Ebersole v. Schiller, 50 Ohio St., 701; Brigel v. Starbuck, 34 Ohio St., 280; Campbell v. Miner, 3 N. P., 138.
    4. An executor is not a testamentary trustee and has no greater rights than any other person appointed by the probate court to administer the estate of a deceased person. Matthews v. Meek, 23 Ohio St., 272; Gandalfo v. Walker, 15 Ohio St., 251.
    5. The allowance of the order asked for is wholly discretionary with this court. Bldg. Ass. v. Ins. Co., 34 Ohio St., 291; Prim v. Nicholson, 6 Ohio St., 176.
   By the Court :

It is provided in section 6017 of the Revised Statutes, that “the probate court may at any time remove any executor or administrator for * * * or any other cause which, in the opinion of such court, renders it for the interest of the estate that such executor or administrator be removed.” The conclusion reached in the common pleas and circuit courts that an order of the probate court removing an executor is not subject to review on petition in error is justified by this section of the statute, as well as by the views which this court has heretofore expressed upon the general subject. The Estate of Still, 15 Ohio St., 484; Brigel v. Starbuck, 34 Ohio St., 280; Ebersole v. Schiller, Admr., 50 Ohio St., 701.

Judgment affirmed.


author: Davis, J.

text:
    State ex rel. John M. Sheets, Attorney General, v. Speidel et al.

      Candidate for sheriff — Dies on election day — Received highest number of votes — Candidate receiving next highest number not thereby elected — Death of sheriff creates vacancy in term he was serving but not in term for which he was candidate — One duly appointed to vacancy will hold office till successor is elected.

    1. When the candidate for an office for whom a majority or plurality of votes was cast at the election, dies on the election day and before the polls are closed, the candidate for the same office receiving the next highest number of votes is not thereby elected; nor has he thereby acquired any right to be inducted into the said office.
    2. When one who is holding the office of sheriff, and is a candidate for election to succeed himself, dies before entering upon the new term, a vacancy is thereby created in the term in which he was serving, but not in the term for which he was a candidate and upon which he had not entered; and one who is duly appointed and qualified to fill the vacancy thus created will hold the office for and during the unexpired term of his predecessor, and until his successor is elected and qualified; and such election must be had at the first proper election that is held more than thirty days after the occurrence of the vacancy.
    (Decided March 6, 1900.)
    In Quo Warranto.
    By petition in quo warranto, the attorney general informs the court that Henry 0. Speidel, one of the defendants, usurps, intrudes into and unlawfully holds and exercises the office of sheriff of Clermont county; that in 1897, E. W. Buvinger was duly elected as such sheriff for the term of two years beginning on the first Monday of January, 1898, at which time he duly qualified and entered upon the duties of said office; that at the annual election on the 7th day of November, 1899, the said Buvinger was a candidate for re-election to said office, and that J. B. Cover and I. Sumner Brown were also candidates for the same office; that at said election there were cast for Buvinger 4369 votes, for J. B. Cover 3802, and for I. Sumner Brown 196 votes, being all the votes at that time cast for said office; that said E. W. Buvinger died on said election day, one hour and forty-five minutes before the close of the polls; that the death of said Buvinger created a vacancy in said office, and a vacancy on the Democratic ticket for said office whereby the 4369 votes so cast for Buvinger were of no effect in law; that said J. B. Cover was elected to said office and was entitled to the same from the first Monday in January, 1900, until the first Monday in January, 1902; that said Cover received a plurality of the votes cast for any “person” and was therefore entitled to the certificate of election to said office from the board of canvassers of said county; that said Cover made demand on said board for a certificate of his election to said office, which was refused, but said board passed the following resolution: “Whereas, J. B. Cover having made demand upon this board to certify his election as sheriff of Clermont county, Ohio, and whereas E. W. Buvinger, whose name appeared as opposing candidate for said office, died on election day and before the close of the polls, now, therefore, this board, being unable to determine who, if anyone, is elected to said office, declines to certify as to said office at all.”
    The relator further shows that William R. Walker was on November 9, 1899, pursuant to the Revised Statutes of Ohio, secs. 8, 11 and 1208, duly appointed and commissioned to fill the vacancy in said office created by the death of said E. W. Buvinger; that said Walker duly qualified, gave bond and entered upon the duties of said office, by virtue of said appointment until his successor should be duly elected and qualified; that said Walker not only continued in said office until the first Monday of January, 1900, but still claims to have and hold the title to said office on the ground that his successor has not been elected and qualified, and still holds and retains the money and funds belonging to said office, and in other ways exercises the functions and privileges of said office.
    The relator further shows that on the first Monday of January, 1900, the said Henry C. Speidel was appointed to fill a vacancy in said office by the commissioners of said county, and pursuant to said appointment said Speidel was commissioned by the governor of Ohio, and on said day unlawfully usurped and intruded himself into said office and is now unlawfully exercising the functions thereof; that said J. B. Cover claims to have been duly elected to succeed said William R. Walker. A judgment of ouster is prayed for against Walker and Speidel and that said Cover may be inducted into said office.
    Speidel demurs to the petition, and Walker files an answer in the nature of a cross-petition, setting forth his appointment, commission and qualification, substantially as stated in the petition; that he has refused the demands of both Cover and Speidel for the surrender of said office, claiming to hold over until his successor is duly elected and qualified; and prays this court to protect him in each and all of his legal rights to said office.

      J. M. Sheets, Attorney General, and N. G. Cover, for relator.

      Frank Davis and H. L. Nichols, for respondents.
   Davis, J.

The claim of Cover that he has the right to be inducted into the office of sheriff of Clermont county, has no foundation. Whether Buvinger, the deceased candidate was elected or not, Cover was not elected. No process of valid réasoning can make 3802 votes to be more than 4369 votes. Not merely a plurality, but a majority, of all the votes cast for sheriff on that election day, were cast against Cover; and it does not avail him. that the majority of votes was cast, in good faith, for a man who had died during the election. The majority was not for Cover, and that is all he can make of it. The election may fail altogether by reason of the death of the person receiving the largest number of votes cast, or by reason of ineligibility of the successful candidate, or by reason of irregularities, but that could not elect a man who in fact has received a smaller number of votes than his opponent.

We will not attempt to follow and discuss all the • refinements of reasoning in which counsel indulge on this subject; but it is worthy of note that it is not made manifest to us that a single vote was cast after Buvinger’s death. It is true that the argument is that the death of the candidate, one hour and three-quarters before the close of the election, made a vacancy on the ticket; and that the case is one in which the law will not regard a fractional part of a day; and that if there was a vacancy on the ticket for part of the day, it was a vacancy for the whole day; and therefore that none of the 4369 votes cast for Buvinger were cast for a living person. We have already answered that argument; but it may be added that if it is just reasoning that there was a vacancy on the ticket for the whole day because there was a vacancy for one hour and three-quarters, it is equally fair to maintain that there was no vacancy at all on the ticket, during that whole day, because there was no vacancy on the ticket during ten hours and one-quarter of the day.

But this case is not to be decided upon reasoning of the kind just mentioned. In the view which we take of this case, it is immaterial whether Buvinger was elected at that election or not. He did not live to qualify and that disposed of his future term. He was already an incumbent of the office, at the time of his death, and that event created a vacancy in his term of office which would expire on the first Monday in January, 1900. Walker was, it is conceded, duly appointed, commissioned, qualified and inducted into the office of sheriff of Clermont county, for the unexpired term of Buvinger. This much, was done under and by virtue of section 1208 of the Revised Statutes; but section 11 of the Revised Statutes read into his commission the words: “Until his successor is elected and qualified!’ Speidel was appointed, and not elected, and is a mere intruder in the office. Walker is still the legal sheriff and will continue so to be “until his successor is elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the occurrence of the vacancy.” Revised Statutes, sec. 11.

In order that we may not be misunderstood, it may be added that there was no vacancy in the office of sheriff of Clermont county on the first Monday in January, 1900. The death of Buvinger did not create a vacancy in his term which would have begun in January, 1900, assuming that he was duly elected, because he did not live to be installed in his second term. State ex rel. v. Dahl et al., 55 Ohio St., 195. Walker was the incumbent at the time when that term would have begun had Buvinger lived, with the right to remain until his successor was elected and qualified. There could be no vacancy then, unless Walker should die, resign, or be lawfully removed for cause. State ex rel. v. Wright, 56 Ohio St., 540. Therefore, the county commissioners, in appointing Speidel, acted altogether without authority; and Speidel can have no right to act as sheriff.

Judgment dismissing the petition as to Cover, judgment of ouster as to Speidel and an order of induction as to William R. Wallcer.

Minshall, J., dissents from induction of Walker and ouster of Speidel.


text:
    Hayes v. Smith.

      Damages for personal injury by vicious dog — Question of negligent keeping of dog — Joint defendants in such action — Knowledge of dog’s character — Proof of bias on part of witness— Rule as to cross-examination of non-expert witness as to knowledge of facts — Charge by counsel of suppression of truth amounts to misconduct, when — May be cause for new trial — Form of objection to such abuse of privilege, not material.

    1. The gist of an action to recover damages for a personal injury inflicted by a vicious dog, is the keeping of the dog in a negligent manner, after knowledge of .his vicious propensities, rather than the keeping of the animal with such knowledge.

      2. Two or more persons may be joined as defendants in such action; and the recovery, if any, may be joint or several.
    3. When it has been shown that the animal has been kept after knowledge of his dangerous character has been acquired, or circumstances have been shown from which the law would imply knowledge, and an injury has followed, this would be prima facie evidence of negligence.
    4. One may negligently keep and harbor a vicious dog, knowing him to be such, without being the owner of the animal; and he may thus keep and harbor a vicious dog without owning or controlling the premises where he may be kept; and he may be chargeable with notice of the viciousness of the dog through his neglect to take notice of his vicious habits.
    5- A witness may be interrogated on cross-examination concerning facts which affect his credibility by showing bias or prejudice in favor of the party who called him as a witness; and if the witness denies the facts inquired about, the cross-examining party may prove them by other witnesses.
    6. Where a non-expert witness has detailed the facts within his knowledge, and, without objection, has been permitted to answer the question: “From your knowledge of the dog, what do you say as to'his being a peaceable, quiet dog?” he may be cross-examined as to the facts which form the basis of his opinion, and as to his want of knowledge of facts; but he can not be asked to give his opinion upon a state of facts which is not shown to be within his knowledge.
    7- For counsel, in the course of argument to the jury, to charge the opposite party with deliberate purpose and effort to suppress the truth, and with naving hired an attorney for that purpose, without justification in the evidence, or to state or assume as facts matters which are not in evidence, or to comment on testimony which had been ruled out, is an abuse of privilege, and is misconduct for which a new trial should be granted.
    8. It is a duty of the trial court which is not merely discretionary, when counsel grossly abuses bis privilege to the manifest prejudice of the opposite party, to interpose and admonish the offending counsel and to instruct the jury in regard thereto; and if it fail to do so, it is ground for a new trial.
    9. The form in which an objection to such an abuse of privilege is brought to the notice of the trial court is not material; and when the record shows that the opposing counsel addressed his objections and exceptions directly to the court, and the full record being before the reviewing court, it does not appear that the trial court took any notice thereof, nor that it acted thereon, it will be presumed to have refused to rule out the objectionable matter, and such failure and refusal will be ground for reversal.
    (Decided March 6, 1900.)
    Error to the Circuit Court of Sandusky county.
    The defendant in error brought suit in the court of common pleas of Sandusky county against the defendants who are the children and heirs of the late Rutherford B. Hayes, alleging in her amended petition, upon which the case was tried, that heretofore, to-wit, on the first day of January, A. D. 1893, and from thence and until, and at the time of the injury to the said plaintiff, as hereinafter mentioned, the said defendants wrongfully, injuriously and negligently, did keep and harbor a certain dog, and that they, and each of said defendants, during all that time had notice of and well knew that said dog was fierce, vicious and dangerous, and as they and each of them well knew, that said dog was in the habit of attacking, biting, chasing and frightening teams, horses and horses attached to wagons, carriages and other vehicles, and also in the habit of attacking and biting mankind, of all of which said defendants and each of them had at all times full knowledge; and that said dog did afterwards and while so kept and harbored by said defendants as aforesaid, to-wit, on the eighteenth day of August, 1893, and while plaintiff was riding in a buggy along and on the public highway, run out upon the public highway upon which plaintiff was then traveling as aforesaid, and fiercely and ferociously did spring at and viciously attack the horse drawing the buggy in which plainMff was then riding; and by reason of said attack so made by said dog upon said horse the said horse became and was frightened and unmanageable and overturned the buggy in which plaintiff was riding and threw plaintiff with great force and violence upon the ground, thereby inflicting upon plaintiff’s head and other parts of her body dangerous wounds and injuries, whereby she sustained a great loss of blood from her head and other parts of her body, a severe shock of the nervous system, partial loss of memory.
    And by means of the injuries so as aforesaid inflicted upon plaintiff, she has sustained permanent mental and physical injuries, total loss of hearing in one of her ears, and has at all times since she received said injuries endured constant pain and hodily suffering.
    Motion to make the amended petition more definite and certain was made and overruled, and likewise a special demurrer to the amended petition, on the ground that separate causes of action against the several defendants are improperly joined.
    Defendants answered separately. It is not deemed necessary to set out in detail the defenses included in these several defenses. A trial was had in the common pleas court, resulting in a verdict for the plaintiff. A special verdict was also returned by the jury which is substantially the facts as alleged in the amended petition. Motion was made to set aside both the special and general verdicts upon a large number of grounds, among which were the allegation that the court had erred in admitting evidence offered by the plaintiff and excepted to by the defendant and that there was misconduct of the attorneys for the plaintiff in the argument to the jury. Motion for a new trial was overruled, judgment rendered upon the verdict, and the judgment was affirmed in the circuit court.
    Petition in error is filed here to reverse the judgment of the circuit court.
    It appears in the bill of exceptions that a witness, Lucy Keeler, was examined on behalf of the defendants, and after stating in detail her knowledge of the habits of the dog in question, she testified as follows, without objection:
    Q. From your knowledge of him what do you say as to his being a quiet, peaceable, good natured dog? A. I am quite sure he was a quiet, peaceful, good natured dog from my knowledge.
    On cross-examination she was asked the following-questions :
    Q. Suppose that a man was driving along the public highway in a sleigh with his wife a.nd babe in the wife’s arms, and the dog would leap at the horse, at the head of the horse, spring at him with an attempt to grab the horse by the head or nose, miss the horse, pass on by, then come back at the lady that was sitting in the sleigh and jump at her, and suppose she was pulled over away from the dog and the dog would run around and jump at the man, and the dog was driven away with a whip, your opinions would be somewhat changed about the good nature of this dog, would it not?
    Objected to by defendant’s counsel.
    Overruled by the court, to which ruling of the court the defendant at the time excepted.
    A. If those are facts my opinion would certainly be changed.
    Q. Now suppose that dog had run upon the public highway from thirty to forty different times and leaped at horses hitched to wagons and carriages, leaped at their noses and barked and frightened them and ran after them and barked, now would that change your opinion of the good nature of this dog?
    Objected to by defendant’s counsel.
    Overruled by the court, to which ruling of the court the defendant’s counsel at the time excepted.
    A. I think that Avould change my opinion if it were proven to me.
    Also Dr. George O. Harlan was called for the defendant, Avho testified as folloAvs:
    Q. From your knoAvledge of this dog you may state Avhat his character was. generally, just describe him? A. Well, I could better, probably, if you put it his disposition, I don’t know as I can get at really the character of the dog.
    And on cross-examination as follows:
    Q. Supposing this dog in question in the winter time of 1892 and 1893, in February, 1893, had sprang out at a horse hitched to a cutter in which cutter there was a woman with a babe in her arms,, and husband sitting beside her, they were driving this horse along, this dog jumped out and made a leap at the horse’s nose or head, missed that and went on and then turned and came back at the woman and tried to catch her, jumped at her, and the husband pulling her over, kept her away from the dog, that he then ran around at the husband and made at him, and the husband struck him with a Avhip to keep him off, have you taken that fact into consideration in your testimony here when you say this dog was a peaceful dog?
    Objected to by defendant’s counsel.
    Q. If that is true, have you taken that into consideration?
    Objected to by defendant’s counsel.
    Q. Have you taken this into consideration?
    Objected to by defendant’s counsel.

      Overruled by the court, to which ruling of the court the defendant’s counsel at the time excepted.
    Q. Have you taken that in consideration what I have said? A. I never heard that before.
    Q. Did you take this in consideration when you said you thought the dog was a peaceable dog? A. I never have heard of that, never have known of that taking place, if I would have known that that had taken place —
    Q. If that actually did take place as I have stated, then what would you say?
    Objected to by defendant’s counsel.
    Overruled by court, to which ruling of the court defendant’s counsel at the time excepted.
    A. I would consider the dog then if he would do that in a vicious manner that he would be a vicious dog.
    Also William E. Lang testified in behalf of the defendant as follows:
    Q. Well, from your knowledge of the dog, your observations of him, yon may state what manner or character of dog he was as to being a quiet, peaceable, inoffensive dog?
    Objected to by plaintiff’s counsel.
    Court overruled the objection, to which ruling of the court plaintiff’s counsel at the time excepted.
    A. I should say he was an inoffensive dog.
    And on cross-examination:
    Q. Now what do you say about a dog that would run and jump over the fence and attack horses and spring at their heads and noses and cause them to run away, and run after them barking, what would you say about that kind of a dog, would that be a vicious dog in your opinion?
    Objected to by defendant’s counsel. .
    Court overruled the objection.
    By Court: The Court has held that you were entitled to ask the witnesses as to the character of this dog as to whether peaceable, quiet character or not. This witness, however, answered this was not a vicious dog, that was his answer directly, and it seems to me that the cross-examination should be as broad as the testimony of the witness in chief. I think that that is proper cross-examination of such an answer as he was permitted to give in direct examination. The question may stand, to which ruling of the court the defendant’s counsel at the time excepted.
    A. Well, I think likely I would.
    By Court: In connection with this testimony on cross-examination, it is not for the purpose of giving the jury his opinion of this dog on trial, but simply cross-examination on his standards of opinion, it is all the time a question for the jury to determine whether or not this dog was vicious or not.
    Q. What would you say about a dog in your opinion as to whether he was vicious or not who would run out upon the sidewalk and spring at a man and throw him down and catch hold of the man’s coat with his teeth and hold him down till he was kicked off, in your opinion would that dog be a vicious dog?
    Objected to by defendant’s counsel.
    Court overruled the objection, to which ruling of the court the defendant’s counsel at the time excepted.
    By Court: I will say that that is permitted by the court simply on the grounds that they have the right to ask the witness on cross-examination his standard of opinion.
    And also A. H. Jackson was called by defendants and testified as follows:
    Q. From your knowledge of the dog, what do you say as to his being a peaceable, quiet dog? A. I always judged he was, never saw anything to make me think otherwise.
    And on cross-examination as follows:
    Q. Would you say this dog was a quiet, peaceable dog if he would run out upon the highway and attack a man and force him to the ground and take hold of his shoulder and hold him there until he was kicked off?
    Objected to by defendant’s counsel.
    Court overruled the objection, to which ruling of the court the defendant’s counsel at the time excepted.
    A. No, if I had known of such a thing as that, or convinced that such a thing took place, I wouldn’t consider him a quiet dog.
    Q. Would you say this dog was a quiet, peaceable dog, if he would run out, jump over the fence and run out at horses and teams, and spring at their heads and frighten them, would you say then he was a quiet dog and follow after them?
    Objected to by defendant’s counsel.
    By Court: I think this cross-examination should relate to the knowledge of the witness, the holding of the court is, you may cross-examine him on his opinion and what his opinion would be if he had knowledge of such things, I think you should adhere to that rule as laid down. The witness gives his opinion as to the dog, the court holds you may ask if he knew this, that or the other thing, I do not think that question is in proper form.
    Plaintiff’s counsel withdrew the question.
    Q. If you knew that this dog was in the habit of jumping out over a fence and springing at horses and jumping for their noses, barking and growling and frightening horses and causing them to run away, would you say he was a quiet, peaceable dog? .
    Objected to by defendant’s counsel.
    Court overruled the objection, to which ruling of the court the defendant’s counsel at the time excepted.
    A. If I knew that to be the case, he did anything of that kind, I certainly wouldn’t call him a quiet, peaceable dog.
    By Court: That is admitted simply for the purpose of cross-examining this witness as to his opinion, not for the purpose of giving opinion of the dog in question, and should not be so considered by the jury.

      ¡3. C. Garver, one of the attorneys for the plaintiff, in argument to the jury made use of the following language, Avliich Avas objected to as noted:
    “Never before in my short experience of nearly eighteen years did I see that stubborn, unrelenting effort upon the part of mortal man to suppress truth and nothing but the truth, as Avas upon the part of the defendants in this case.”
    Col. Bartlett: If your honor idease, I take exception to this statement of counsel.
    Mr. Garver: Ool. Bartlett sat here for the very purpose, hired by the shekels of these defendants for the very purpose that he did, to keep out the God’s honest truth.
    Col. Bartlett: I take exceptions, if your honor please, to that last statement of counsel.
    Mr. Garver: They kneAV that if the truth was told in this case, though the heavens Avould fall, they could not escape a verdict at your hands. * * * That dog Avas alloAved to live only up to the time that they kneAV this case would have to be tried by a jury of tAvelve men. A few months before this case Avas called that dog Avas put to death. Only a few Aveeks before this case Avas called for trial that dog was put to death by the hand or by the direction of one of these defendants, Avho is interested to the tune of |25,000.
    Ool. Bartlett: I Avish to lodge an exception to the last remark concerning the dog being put to death.
    Mr. Garver: He does not CQme here of his own volition, but he comes here under the strong arm of the laAV, and he is brought here an unAvilling witness. * * * Well, the old man (Rinebolt) says that somebody called the dog. My God! If they had only left that out. He called the dog.
    Col. Bartlett: I object to that, if your honor please. That testimony is not in the case; it is ruled out.
    Mr. Garver: It is in the case. That somebody called the dog is in the case, but that he said he owned the dog is ruled out.
    Col. Bartlett: I lodge my objection and take my exceptions.
    Mr. Garver: There it is again. When you call the jury’s attention to the God’s own fact. “I object. I want it to be so recorded.” Oh! that hurts. They are bleeding under that lash as they never bled before. One of the important things and one of the most important things in this case is: Did these defendants have notice? Fanny Hayes, out upon the grounds within 260 feet of the public highway, Avith this dog barking with that voice of his, as has been described to you, what do you say? Called back — “Come back.” The cries of that old man brought to his assistance one of the inmates of that house, the man that was upon the ground, and when that dog heard that familiar sound of the old man Elliget he knew enough to obey and to return.
    Col. Bartlett: I object to the counsel assuming that there is any evidence Fanny Hayes was upon the ground at the time of the alleged attack by this dog upon Mr. Rinebolt, and except to the remarks assuming there is such evidence.
    Mr. Garver: Again we have got it. From the time the testimony in this case was offered until the time when the feeble arguments are to close, Ave are to be stopped; stopped for why? I will tell you AAdiy. He thinks he Avill lure us from the point and the thread of our theme. I say that that was the purpose and the intention of counsel. When witnesses were testifying he was talking, and he objected, and objected, and objected, hoping that you would miss a part of this; that you would not be able to hear it all, and so it was from the mouth of that distinguished lawyer when anything hurt or cut deep: “I object!”

      Bartlett & Wilson and B. A. Bayes, for plaintiffs in error.

      Witnesses are required, so far as may be, to state the primary facts which support their opinions. The jury should have been left free to form their opinion on the facts testified to, uninfluenced by the mere opinion of witnesses. Railroad Co. v. Schultz, 43 Ohio St., 282. The defendants below called a number of non-expert witnesses who testified in chief to the character of the dog found on their personal observation and knowledge of him, the particulars of which they stated in their testimony. This the' law allows. Gandolfo v. State, 11 Ohio St., 114.
    The court erred in permitting the witness Amelia Kern to testify regarding what she stated the witness Charles J. Patterson said to her. Patterson was simply a witness on the trial of the case on behalf of the defendants below. The subject matter of the question was collateral and irrelevant to the issue, and the plaintiff was bound by his answer. The witness Amelia Kern should not have been permitted to contradict him. Ohio v. Nevin, 23 Law Bull., 411; 1 Greenleaf on Evidence, Sec. 449; Whart. on Crim. Ev.. Sec. 484; 23 Ohio St., 27; 31 Ohio St., 100; 2 Clev., 281; 4 Bull., 676.
    S. C. Garver, one of the attorneys for the plaintiff below, while making the opening argument to the jury, was guilty of misconduct in stating aad commenting on matters prejudicial to the defendants below not given in proof on the trial of the case. Scripps v. Reilly, 35 Mich., 371; Insurance Co. v. Checver, 36 Ohio St., 201.
    Facts, of which, no proof is offered and no presumption arises, are legally outside of the case, and cannot be brought before the jury under any pretense whatever. Tucker v. Henniker, 41 N. H., 317; Rolfe v. Rumford, 66 Me., 564; Berry v. State, 10 Ga., 511; Dickerson v. Burke, 25 Ga., 225; Koelges v. Ins. Co., 57 N. Y., 638; Broughton v. McGrew, 39 Fed. Rep., 672, 5 L. R. A., 406; Bennett v. State, 12 L. R. A., 449; Mitchum v. State, 11 Ga., 615; Roeder v. Studt, 12 Mo. App., 566; Proctor v. De Camp, 83 Ind., 559; Gibson v. Zeibig, 24 Mo. App., 65; Martin v. Omdorff, 22 Iowa, 504.
    Counsel should not appeal to the prejudices of the jurors against the opposite party, and such conduct unrebuked by the court, will warrant a new trial. Miller v. Dunlap, 22 Mo. App., 97; State v. Lee, 66 Mo., 165; State v. Barham, 82 Mo., 67; Brown v. Railway Co., 66 Mo., 588; Bremmer v. Railway Co., 61 Wis., 114; Brown v. Swineford, 44 Wis., 282.
    Instructions of the court to the jury to disregard improper remarks of counsel do not cure the error. Rochester v. Shaw, 100 Ind., 268; State v. Roland, 85 N. C., 576.
    When an attorney of the plaintiff is permitted to make statements of matters to the jury not in evidence, and comment upon them in his argument to the prejudice of the defendant, a new trial should be granted, though the jury were instructed to disregard the statements and comments of counsel as to matters not in evidence. 92 Cal., 282; 27 Am. St. Rep., 103; 86 Ga., 401; 22 Am. St. Rep., 465; 66 Mich., 460; 11 Am. St. Rep., 512; McDonald v. People, 9 Am. St. Rep., 559; 16 Am. & Eng. Ency. of Law, 524; The Warder Co. v. Jacobs, 58 Ohio St., 77.
    When a dog is kept on certain premises, a person is not liable for the vicious acts of such dog as the keeper or harborer thereof, unless he has control of the premises where such dog is kept. Lynch v. Moore, 38 New York Sup., 1095; Strouse v. Leipp, 101 Ala., 433: Morgan v. Hudnell, 52 Ohio St., 552.
    . Where two parties have control of premises on which a vicious animal is kept, and one of the parties lias control of the animal and it is his duty to have such control, and the other party has not control of the animal and it is not his duty to have such control, the former is, and the latter is not, the harborer of the animal. Shearman and Redfield on Negligence, 5th ed., vol. 2, sec. 635, page 1110; Whittemore v. Thomas, 153 Mass., 317.
    Harboring being an element necessary to tlie liability of each of the defendants, and facts being conceded which conclusively piwed that the executors did, and that Fanny Hayes and Scott R. Hayes, could not, for want of control, harbor the dog, this court should reverse the judgment against the latter two and render judgment in their favor. Minnear v. Holloway, 56 Ohio St., 118; Higgins v. Higgins, 57 Ohio St., 239.
    A judgment at law is a unit as to all of the defendants against whom it has been rendered, and if erroneous as to one is erroneous as to all. Street Railway Co. v. Morrison Co., 160 Ill., 288; 43 Northeastern, 393; Jansen v. Varnum, 89 Ill., 100; Ragor v. Kendall, 70 Ill., 95; Tillett v. Railway Co., 115 N. Car., 662; 20 Southeastern, 480; Sheldon v. Quinlen, 5 Hill (N. Y.), 441; Lewis v. Kahn, 15 Daly, 326; 5 N. Y. Sup., 661; Frazier v. Williams, 24 Ohio St., 625; Buckingham v. Bank, 21 Ohio St., 131.
    Two or more persons cannot jointly commit a tort, a material element of which is knowledge of any particular fact or state of things, except- in those cases where the knowledge of one is imputed to the others.
    The gist of the action in the case at bar is “the keeping the animal after knowledge of its mischievous disposition.” Partlow v. Haggarty, 35 Ind., 178; 1 Addison on Torts, Sec. 261; Spring Company v. Edgar, 99 U. S., 645; Mullen v. MeKisson, 73 N. Y., 195; Cooley on Torts, (2nd edition, page 404).
    It is well settled in this state that several persons cannot rightly be made defendants jointly, when the tort cannot be joint. Orr v. Bank, 1 Ohio, 36; Foote v. Cincinnati, 9 Ohio, 31; Anderson v. Pack, 14 Bull., 596.
    That slander is not capable of commission by two jointly is also held by the text writers. Cooley on Torts, *124, 2nd edition, 142; Pomeroy on Remedies, section 313, page 361.
    The mere fact that each of two persons has knowledge of a fact which makes them liable for a tort, is not sufficient to authorize a joint action against both. It must appear in the petition that there is a “jointness” (if we may coin a word) or a “oneness” in the knowledge. Sellick v. Hall, 47 Conn., 260; Bard v. Yohn, 26 Penn. St., 482; Williams v. Sheldon, 10 Wendell, 654; Bliss on Code Pleading, 2nd edition, page 131, section 83.
    How can two persons jointly know the vicious disposition of a dog? How can they join in knowledge any more than speech? If two should harbor, one with knowledge and one without, manifestly the latter is not liable. Morgan v. Hudnall, 52 Ohio St., 552.
    Again, Jack v. Hudnall is probably not good law; it is contrary to the doctrine enunciated in Cooley on Torts, *348, 2nd edition 410, note 2; 2 Kinkead’s Code Pleading, 169, note 2; Auchmuty v. Ham, 1 Denio, 495; Von Steenburg v. Tobias, 17 Wendell, 562; Partenheimer y. Van Order, 20 Barbour, 479; Cogswell v. Murphy, 46 Iowa, 44; Nierenberg v. Wood, 59 N. J. L., 112.
    The case of Jack v. Hudnall, 25 Ohio St., 225, is distinguished rather than approved in Boyd v. Watt, 27 Ohio St., 259; Shearman and Negligence (5th edition), section 626.
    Where a plaintiff has the option of suing several persons’ in separate suits or all jointly in one suit, and pursues the latter course, either one of the defendants may, by special demurrer or answer, insist upon a separate suit against himself alone.
    There is nothing in the amended petition to show that any two of the defendants joined in the harboring or joined in the knowledge. Strouse v. Leipf, 101 Ala., 433; 14 Southern, 667; Quilty v. Battie,
      135 N. Y., 201; 32 Northeastern, 47; Pomeroys Remedies, section 453.
    That this action is “against several defendants,” to-wit, five of them, is self-evident and needs no argument. ,
    The Revised Statutes treat of “Joinder of Actions” in Chapter 4, being sections 5019 to 5021 both inclusive.
    There are no authorities construing subdivision 7 of Section 5062: the Code, section 87, contained but six subdivisions, 51 Ohio Laws, 72; 3 Curwen, 1952; 2 SAvan & Critchfield, 974, 975; Seney’s Code, 2nd edition, page 140, section 87. The Revised Statutes, section 5062, contains eight subdivisions, the fourth and seventh being added in the revision. This seventh subdivision noAV under consideration, therefore first appeared in 75 Ohio Laws, 619, having been passed May 14,1878, to take effect September 1, 1878.
    There can therefore be no authorities previous to 1878 on this seventh subdivision; nothing previous to 33 Ohio State or 6 American Law. Record and nothing in Handy, Disney or the Cincinnati Superior Court Reporter.
    We have been unable to find in the Codes of any other state than Ohio, any enactment corresponding to this subdivision 7 of section 5062. It is not found in the statutes of the folloAving states in the editions accessible to and examined by us. Deering’s Annotated Codes and Statutes of California (1886), see section 430. Revised Statutes of Idaho Territory (1887), See section 4174. Indiana Statutes. Revision of 1894. Burns. Section 342. Kentucky. Act regulating Practice in Civil Cases, 1876. Section 92. Missouri Revised Statutes, 1879. Section 2043. General Statutes of Nevada. 1885. Section 3$62. Bliss’s New York Annotated Code. 1883. Section 488. Compiled Laws of Utah, 1876. Section 1265.
    The legislature must have intended to add to the grounds of demurrer when it added subdivision seven to section 5062; a clause added in the revision of the statutes has as much force as an amendment by the legislature. Collins v. Millen, 57 Ohio St,, 289.
    The harborer of a domestic animal is not in general liable for an injury committed by such animal while in a place where it rightfully may be, unless it is shown that the animal was vicious in the particular complained of, and that the harborer had notice of such vicious propensity.
    Plaintiffs in error claim that there is in the record no testimony whatever that either of the five defendants had any notice of this vicious propensity of the dog.
    Notice to one joint-harborer of a vicious animal is not, by mere force of the relation, notice to other joint-harborers. Freeman on Co-Tenancy and Partition, section 171; 16 Encyclopedia of Law (first edition), 806; Wade on Notice, page 312, section 684; Snyder v. Sponable, 1 Hill, 567; which was affirmed in Sponable v. Snyder, 7 Hill, 427; Perkins v. Zumstein, 4 Circuit Court, 371, in 2 O. C. D.; Bettor v. Holland, 57 Ohio St., 492; Baker v. Kellogg, 29 Ohio St., 663.

      B. B. Love; Finnefrock & Garver, and Basil Meek, for defendant in error.
    An objection presented is that “the court, over the objection of the attorney for the defendants below, permitted non-expert witnesses, on cross-examination, to give their opinions as to the vicious character of the dog, * * * and give a state of facts not within the personal knowledge of the witness.”
    The defendants below were not content to allow the witnesses to merely detail to the jury the conduct of the dog, and allow the jury to draw its own conclusions as to the character of the dog, but they put the question to the several witnesses direct as to the character of the dog. And the witnesses answered as above, not that the particular conduct which they observed was “quiet,” “peaceable” and “good-natured,” and “not vicious,” but that he was a dog of that character; and the facts sought to be ascertained by the cross-examination was what the witnesses meant by the terms “quiet and peaceable,” “goodnatured,” and “not vicious.”
    The jury could not have been misled by this testimony, especially with these specific instructions given by the court at the time as' to the only purpose for which it was admitted, and for which it could only be considered by the jury. In fact, it was the province of the jury to pass upon the character of the dog after the witnesses in question had detailed all the facts to the jury for which the witnesses were called upon to give their respective opinions as to the character of the dog; and having done so, any cross-examination tending to test the witness’ opinion was competent. 40 Ohio St., 376; 1 Greenleaf on Evidence, sec. 468; Clipper v. Morgan, 18 Ohio, 375; Taylor v. Boggs, 20 Ohio St., 516.
    The purpose of this cross-examination was not to establish the character of the dog, or for giving an opinion of the dog in question, but solely for testing the witness as to his opinion expressed- in chief. 8 O. C. D., 96 ; 15 Circuit Rep., 307; Martin v. Elder, 32 Ohio St., 282.
    And it is error to exclude on cross-examination questions which calí upon the witness to reaffirm, qualify or deny his statements in chief. Phillips v. Elwell, 14 Ohio St., 240; Shelby v. Clagett, 46 Ohio St., 549; 42 Ohio St., 429; Ohio Code of Evidence, sec. 218.
    The plaintiff may cross-examine defendant’s witness as to all- matters which the defense may prove under the issues in order to sustain his defense. Legg v. Drake, 1 Ohio St., 286; Bean v. Green, 33 Ohio St., 444.

      The third objection presented is that the court erred in permitting the witness Amelia Kern to testify regarding what she said the witness Charles J. Patterson said to her. This impeaching testimony was offered solely for the purpose of showing the interest, bias and prejudice of defendants’ witness, Charles Patterson, and was competent. Kent v. State, 42 Ohio St., 426; Jones, Law of Evidence, Vol. 3, secs. 829, 830, 831.
    Counsel for defendant objects, and in some instances objects and excepts, to the remarks of the plaintiff’s attorney; but to what did he object or except? Not to any ruling of the court, for the court had made no ruling, nor had the court been asked to make a ruling. We are not even told whether counsel expected the court to make a ruling.
    We especially direct the court’s attention to the fact that the record does not show that counsel for defendants below directed the statements of his exceptions to the court, nor that the court’s attention was ealled to them; and we insist that if there was any error in statements of Mr. Carver, that he did not save his exceptions by objecting thereto and asking the court to rule upon them. The presumption is that the court did its full duty, and if Col. Bartlett had asked the court for a ruling upon any objection, or for instructions to the jury upon any statement of Mr. Carver, the court would have complied with his request. Warder et al. v. Jacobs, 58 Ohio St., 81; 19 Ohio. 300; 10 Ohio St., 223; 20 Ohio, 48; 22 Ohio St., 324.
    Plaintiffs in error admit in their pleadings that Birchard A., Webb C. and Rutherford P. Hayes harbored said dog “as executors,” and each severally denies that he kept and harbored said dog.
    The admission that they kept and harbored the dog stands with all that it implies, and with all the legal responsibilities it involves, and the statement that they did this as executors is nugatory and may be disregarded. 8 O. C. D., 103, and 15 C. C. R., 318.
    An executor is liable for what he omits to do, if it is his duty to do it, as for misfeasance. 2 Addison on Torts (D. & B. Ed.), 130.
    Executors and administrators are personally liable for the injuries to third persons caused by their oavu tortious or negligent acts in the administration of an estate. 7 Eng. & Am. Enc. of LaAV, 344, and cases cited. They are personally liable for services of attorneys employed by them even if the services were rendered for the benefit of the estate. 2 O. L. N., 333; Thomas, Admx., v. Moore et al., 52 Ohio St., 200.
    An administrator cannot bind an estate by his contract, 5 C. C., 12; Id., 89. How, then, can he bind an estate by his own negligent, or tortious act even while acting in that capacity?
    The evidence clearly and unmistakably establishes the vicious nature of this watch dog, and the jury has found that he “was fierce, vicious and dangerous.”
    This vicious nature we claim is equivalent to express notice. Muller v. McKesson, 73 N. Y., 195; Lynch v. McNally, Id., 347; Earl v. Van Alstine, 8 Barbour, 630.
    The habit of an animal is in its nature a fact to be shown by proof of successive acts of a similar kind. Ray on Negligence of Imposed Duties, p. 605.
    The disposition of an animal is shown by its general behavior antecedent to the injury.
    The ferocity and viciousness of this dog were continually demonstrated for about two years prior to this injury, at Spiegel Grove, the home of these defendants.
    The question of scienter is always left to the jury. Nordic v. Leffler, 2 Bull., 258; Clark v. Hite, Tappan, 1; Worth v. Gilling, 2 Com. P. (L. R.) 1; Thompson on Negligence, sec. 17, p. 203; Ray on Negligence of Imposed Duties, p. 607; Campbell v. Brown, 19 Penn., 359; Schmidt v. Humphrey, 48 Iowa, 652.

      The defendants below either had actual knowledge of the viciousness of this watch dog, or their conduct was such respecting it as to charge them with negligence in not observing it.
    From all this we can say that the jury was warranted in finding that the defendants are chargeable with notice of such vicious habits of this dog as must have come to their knowledge if they had exercised such reasonable care and watchfulness as prudent men ought to exercise over an animal of that kind. 15 C. C. Rep., 327; Cooley on Torts, 2d Ed., p. 405; Shearman and Redfield on Negligence, sec. 189, p. 221 (or 5th Ed., sec. 630) ; Wharton on Negligence, secs. 923 and 904; Ray on Negligence, p. 610; Stebin v. Walker, 46 Mich., 5.
    These authorities and decisions of our court lead to but one conclusion, viz.: When the owner or harborer is wanting in the exercise of reasonable care to discover viciousness in the animal, he is liable.
    The owner of a domestic animal may be chargeable with notice of its viciousness through his negligence to take notice of its vicious habits. Knowles v. Mulder, 74 Mich., 202; Turner v. Creighead, 83 Hunn., 112; 63 N. Y. S. R., 853; 31 N. Y. Sup., 369; Brice v. Bauer, 108 N. Y., 428; 2 Am. State Rep., 454; Buckley v. Leonard, 4 Denio, 500; Loomis v. Terry, 17 Wendell, 500; Mann v. Weiand, 81½ Penn. St. Rep., 243; Robinson v. Marino, 3 Wash., 434; Arnold v. Norton, 25 Conn., 92; Worth v. Gilling, L. R., 2 C. P., 1; Thomas on Negligence, Rules and Decisions, 508; Montgomery v. Koester, 35 La. An., 1019; Warner v. Chamberlain, 7 Houst., 18 (Del.), 30 Atl. Rep., 638.
    Knowledge of the agent or servant is knowledge in law to the owner, keeper and harborer.
    Generally, in order to charge the owner, it is sufficient to show that his servants or agents had notice of the vicious disposition of the animal. Buswell, 188; Brice v. Bauer, 108 N. Y., 428; 2 Am. S. Rep., 454; Ray on Negligence of Imposed Duties, 625; Applebee v. Percy, L. R., 9 Com. P., 647; 43 L. J. C., 365; 22 Week. Rep., 704; Cooley on Torts, 2d Ed., 406, note and cases cited; 2 Eng. & Am. Enc. Law, 2d Ed., 371; Wliarton on Negligence, sec. 922; Tuell v. Watson, 47 Vt., 634; Corliss v. Smith, 53 Vt., 522; Baldwin v. Casella, 7 Court of Exchequer, p. 305.
    All joint tort feasors are jointly and severally liable at the election of the plaintiff. Boyd v. Watt, 27 Ohio St., 259; 6 Taunton, 29; 1 Washburn, 187; Bates’ Pleadings, vol. 1, p. 57; Pomeroy’s Code Remedies, sec. 281.
    Plaintiffs in error fail to recognize the distinction between wrongs ex contracto and wrongs ex delicto. In a suit against several joint tort feasors a reviewing court has the right, on petition in error in action for torts ex delicto, to treat the judgment as an entirety, or hold it good as to some of the defendants, and discharge it as to others, if, in the opinion of the court, the verdict should or should not have been rendered against all of the defendants. Rengler v. Lilly, 26 Ohio St., 48; Mead v. McGraw, 19 Ohio St., 55; Heffner v. Moyst, 40 Ohio St., 112.
    Power of a court to reverse a judgment implies power to modify. 28 Ohio St., 236; Quilty v. Battie, 135 N. Y., 201; Pomeroy’s Code Remedies, 3rd Ed., secs. 307, 314; Buswell, Personal Injuries, 36.
    The person who harbors a dog as a watch dog is chargeable with knowledge that its character is so ferocious as to make it unsafe to allow it to remain unconfined. Hayes et al. v. Smith, 8 O. C. D., 108; 15 C. C. R., 328; Wolf v. Chalker, 31 Conn., 131; Ray on Negligence, page 615.
   Davis, J.

The counsel for the plaintiffs in error have very ably and plausibly argued that the gist of this action is the keeping of the dog after knowledge that he was vicious and dangerous, and that unless it be alleged and proved that this knowledge was joint, or that the defendants below were acting in concert, they could not be jointly sued and there could be no joint recovery against them. The defendants have earnestly and persistently kept this theory of the case before all the courts by motion, demurrer, answer and argument; and this is done with such evident sincerity that we think that this contention is entitled to consideration before we proceed to the matters on which we dispose of this case.

The real foundation of an action like the one at bar is not the keeping or harboring of the animal, as was said in one of the courts below, for he may be kept as a watch dog for the protection of the keeper’s person or property. Nor is it merely the keeping and harboring of the dog after knowledge» of his vicious and dangerous propensities and habits; for if he were cowardly, indolent and peaceable, he would not be of much service as a guardian of person or property. A person who has need for a watch dog, of necessity chooses one of more or less brute ferocity, and the law has never yet said that he may not lawfully keep such a protector by him; but the very qualities of the animal for such a purpose require that he shall be securely kept, so that injury may not result to innocent persons, who may be where they have a right to be and are in the pursuit of lawful purposes. Hence the gist of such an action as this is not the keeping of the dog with knowledge of his dangerous nature, but rather the negligent failure to properly restrain the animal, and to keep him so safely that he may not injure any one who is lawfully at the place.

Following this principle that the action is based on the negligent keeping, it has been laid down as the law, in many cases, that when it has been shown that the animal has been kept after knowledge of his dangerous character has been acquired, or circumstances from which the law would imply knowledge, and an injury has followed, this would be prima facie evidence of negligence. Ray on Imposed Duties, Personal, 618, 619; 2 Am. & Eng. Ency. Law (2nd ed.), 368.

One may thus negligently keep and harbor a vicious dog, knowing him to be such, without being the owner of the animal; and he may thus keep and harbor a vicious dog without even owning or controlling the premises where he may be kept; and he may be chargeable with notice of the viciousness of the dog through his neglect to take notice of its vicious habits. Knowles v. Mulder (Mich.), 16 Am. St. Rep., 627 and cases cited in note; Brice v. Bauer, 2 Am. St. R., 454 and cases cited. It follows that there is nothing illogical, inconsistent, impracticable or illegal in charging two or more persons with negligently keeping and harboring a dog, with knowledge that he was vicious and dangerous. If the proof should sustain the charge as to all, the verdict and judgment would be against all. If the charge should be supported by the evidence as to some of the defendants and not as to others, the verdict and judgment should be against those so found guilty of the negligence charged.

There is no misjoinder of defendants apparent on the face of the pleadings in this case; the rights of the several defendants were carefully guarded by the trial judge in submitting the case to the jury, and, although the evidence is rather weak as to some of the defendants, there is not a total want of evidence as to any, when the case is viewed in the light of the principles which we have here indicated. It is not the province of this court to weigh the testimony. We therefore find no error in the mode in which this suit was brought, nor in the joint judgment against all of the defendants.

Of the other errors alleged upon this record, three, ' at least, require especial attention.

On the trial of the case in the common pleas court, one Charles J. Patterson was examined as a witness in behalf of the defendants. On the cross-examination of this witness he was asked the following question:

Q. Did you say to Amelia Kern on a week ago last Tuesday morning here in the court house, you don’t want to say anything against Hayes’, if they ask you if the dog was cross then you must say no, the reason they shut the dog up was because they would lay in the front room on the carpet in front of people, and if you didn’t there, if you would stick to the Hayes’s I would give you $10.00, $15.00 or $25.00, and if you stuck to Smiths you wouldn’t probably get anything, you want to work for your own pocket book, did you say that to her?

The answer of the witness was a denial, except that he admitted that he had told Amelia Kern, in answer to a question by her, Avhy the dogs were shut up. Amelia Kern was afterwards permitted, over an objection by defendants, to contradict Patterson. The ground on Avhich this testimony was admitted, as stated by the court, was that it tended to show prejudice or bias on the part of the witness; and the court especially cautioned-the jury that this testimony was not to be considered except as affecting the credit of the witness Patterson. There was no error in this. It is clearly within a well recognized exception to the rule as to evidence collateral t-o the issue. Kent v. State, 42 Ohio St., 426; Attorney General v. Hitchcock, 1 Wels., Hurl., & G., 90.

A more serious question arises concerning the hypothetical questions propounded to the witnesses Lucy Keeler, George O. Harlan, William E. Lang and A. H. Jackson. The counsel for the defendants inquired particularly of each of these witnesses as to their actual knowledge of the dog, his habits, manner and conduct, and in every instance followed this line of inquiry with substantially this question: “From your knowledge of the dog, what do you say as to his being a peaceable, quiet dog?”

It was said by Owen, J., delivering the opinion of this court in Railroad Co. v. Schultz, 43 Ohio St., 283; “Where it is practicable to place palpably before the jury the facts supporting their opinions, the witnesses should be restricted in their testimony to such facts, and the jurors left to form their opinions from these facts, unaided by the mere opinions of the witnesses.” And see Torpedo Co. v. Fishburn, 61 Ohio St., 608.

But whether this question was properly permitted or not, it was asked and answered without objection from , the plaintiff, and the trial judge was right in holding that the cross-examination of these witnesses' should be as broad as the examination in chief. But the defendants complain that the cross-examination was allowed to be made much broader than the examination in chief; and we think that their contention is a just one. It is true that the trial judge, in overruling the objection to the question on the cross-examination of the witness Lang, remarked: “It is not for the purpose of giving the jury his opinion of this dog on trial, but simply cross-examination on his standards of opinion. It is all the time a question for the jury to determine whether or not this dog was vicious or not.” . The questions which were allowed, however, went much further than to test the standards of the opinions which had been expressed by each of the witnesses. Each witness had expressly given his opinion of the disposition of the dog, as based on the actual knowledge of the witness. The plaintiff’s counsel were not content to show that the witness had no knowledge of specific instances of conduct by the dog, which would indicate a different disposition from that testified to, ánd were not content to let the jury draw the inferences as to the weight to be allowed to the opinion of the witness, in view of such lack of a broader knowledge of the habits of the dog; but the plaintiff was per. mitted to assume a state of facts, not Avithin the knowledge of the witness, and upon that to demand of the non-expert witness, an opinion as to one of the material facts in issue in the case, a fact, too, as to which the testimony of experts was not competent. The question called for the hypothetical opinion of each witness so interrogated, in a matter which did not involve scientific knowledge or skill, and substituted that opinion for the deliberate judgment of the jury upon the sworn facts of the case. That was the effect of this line of inquiry, notwithstanding the reason given for it by the trial judge. This was reversible error.

The defendants also insist that they were deprived of a fair trial by misconduct of the plaintiff’s counsel on the argument to the jury. The facts are given in the statement and need not be repeated here. The language which was objected to is reprehensible to the last degree. It is none the less reprehensible and none the less inexcusable, because it Avas spoken by counsel of standing and ability. Thus spoken and passing unrebuked by the court, although the attention of the latter was frequently challenged by the counsel for defendants, it could not fail to impress itself on the jury as sanctioned by the character of the counsel and approved by the trial judge. Just and severe invective, which is supported by the testimony, is not improper. A generous latitude should be allowed to counsel; but the argument should always be decorous and should not impair the impartial administration of justice. Therefore, as it was held by the supreme court of North Carolina, in Coble v. Coble, Admr., 79 N. C., 589, “it is not within the privilege of counsel, in argument to a jury, to use language calculated to humiliate and degrade the opposite party in the eyes of the jury and by-standers, particularly when he has not been impeached.” The charge that the defendants were engaged in a phe-> nomenal effort to suppress the truth and that they had made use of their wealth for the express purpose of keeping out the truth, was a serious and uncalled for attack on the integrity of the defendants and their counsel; and it cannot he excused as a reference to the numerous objections to evidence which are apparent in the record, because it is the right of a party to make such objections, and it is not the right of his adversary to charge him with bad motives in doing so. Nor wall we hunt for excuses to palliate the impropriety of discussing evidence alleged to have been ruled out, or of stating or suggesting as facts matters which were objected to as not having been given in evidence, when the court sits mute, when appealed to expressly upon these points.

“It may be laid down as law, and not merely discretionary, that when counsel’grossly abuses his privilege to the manifest prejudice of the' opposite party, it is the duty of the judge to stop him then and there. If he fails to do so, and the impropriety is gross, it is good ground for a new trial.” Jenkins v. N. C. Ore Dressing Co., 65 N. C., 563.

“No duty incumbent on the judge of a trial court is more imperative, nor more important to the fair and orderly administration of justice, than that of interposing to restrain everything in the course of the trial that tends to mislead the jury and to divert their minds from the strict line of inquiry with which they are charged.” Davis v. Hill, 75 N. Car., 224; Evans v. Trenton, 112 Mo., 390. “The courts have usually been very firm, whenever occasion has required, in confining counsel within proper and reasonable bounds to whatever is pertinent to the matter on trial. Statements of alleged facts not adduced in evidence, and comments thereon are irrelevant, not pertinent and are therefore clearly not within the privilege of counsel; and any such practice on the part of counsel should be promptly checked, especially when objected to by the other side.” Rolfe v. Rum- ford, 66 Me., 566, citing Berry v. State, 10 Ga., 511; Mitchum v. State, 11 Ga., 615; Bulloch v. Smith, 15 Ga., 395; Dickerson v. Burke, 25 Ga., 225; Wright-man v. Providence, 1 Clifford, 521, and Tucker v. Henniker, 41 N. H., 317.

“That the practice complained of is highly reprehensible, no one can doubt. It ought in -every instance to be promptly repressed. For counsel to undertake by a side wind to get that in as proof which is merely eonjecturé, and thus to work a prejudice in the mind of the jury, cannot be tolerated. Nor ought the presiding judge to wait until he is called on to interpose. For it is usually better to trust to the discrimination of the jury as to what is, and what is not, in evidence, than for the opposite counsel to. move in the matter. For what practitioner has not regretted his untoward interference, when the counsel thus interrupted resumes. ‘Yes, gentlemen, I have touched a tender spot, the galled jade will wince; you see where the shoe pinches!” Berry v. State, 10 Ga., 522.

An apt illustration of the truth of the last quotation, and of the evil of non-interference by the court, is presented in that which took place in this case when the counsel made objection to certain statements of plaintiff’s counsel.

The record shows that the counsel for the defendants addressed his objections to the court at the time the improper language was spoken. The defendants, therefore, did not waive any of their rights; and, although it does not appear that the court then, or at any time, took any notice of the objections, the defendants had done all that they decently could do to obtain action by the court, and cannot be prejudiced by its failure or refusal to act.

The distinction between this case and that of The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St., 77, is that in this case we have a full record, embodying all of the evidence, the arguments of counsel, the charge of the court, ruling on the motion for new trial, etc., so that upon an inspection of the whole record there is no room for a presumption that the trial court did its duty in the premises. On the contrary it thus appears that the court took no notice of the objections raised by the counsel for defendants, and refused to rectify its error on the motion for a new trial.

Judgment reversed.