author: McIlvaine, J.

text:
    The State on relation of William Goss v. Charles W. Randall, Auditor of Warren County.
    1. Under section 2 of the act of April 30, 1868 (65 Ohio L. 260), which provides for an election of a superintendent of the irreducible school fund, created and established for that part of Warren county which lies within the Virginia military district, “ by the members of the boards of education of the several townships, parts of townships, separate and special school districts in that part of the county of Warren entitled to said fund,” each member of the several boards of education whose districts are composed of territory in whole, or in part only, within the military district, and entitled to share in the fund, is entitled to vote at such election, whether such member resides within the military district or not.
    2. By the same section it is made the duty of the auditor of the county, on. a specified day, and in the presence of the clerk of the court of common pleas and probate judge, “ to open, count, and declare the result” of such election from “returns signed, sealed, and delivered by the clerks of the several boards of education” to him before the next'Monday after said election. But such auditor will not be compelled by mandamus to count returns delivered to him unsealed or sent to him by mail without any disclosure of contents, and opened by him in the-absence of the clerk and judge previous to the day specified.
    Mandamus.

      J. D. Wallace, for the relator.

      Wm. W. Wilson and J. K. O’Neal, for the defendant.
   The case is sufficiently stated in the opinion.

McIlvaine, J.

By the act of April 30, 1868 (65 Ohio L.. 259), and the act to which that act is amendatory, provision is made for the election of a superintendent of the irreducible school fund created and established in the Virginia military district lying and being in the county of Warren. The Virginia military district lies between the Scioto river on the east and the Little Miami river on the west, but the county of Warren embraces territory both on the east and west side of the Little Miami. Within the county, and also within the military district, the following township and special school districts are wholly embraced —namely, Massie, Washington, Harlan, and Hamilton townships, and Harveysburgh, Butlersville, Miami, and Hopkinsville special school districts. Within the county, and partly within the Virginia military district, are the townships of Wayne and Salem and the special school districts of Waynesville, Morrow, Foster’s Crossings, and Deerfield. A portion of the last-named townships and special school districts lies west of the Little Miami and outside of the military district. In each of these school districts, special as well as township, lying within the Virginia military district, either in whole or in part, there is organized a board of education for the control and management of the schools therein, composed of a greater or less number of members, according to the provisions of the statute in each case made and provided, and each of said school districts, township and special, is entitled to the benefits of said irreducible fund in proportion to the number of youth of school age residing in such school district and also within the Virginia military district.

Section 2 of said act reads as follows:

Sec. 2. That there shall be elected by the members of the boards of education of the several townships, parts of townships, separate and special school districts, in that part of the county of Warren entitled to said school fund, at the regular meetings of the township hoards of education, on the third Monday of September, 1868, and biennially thereafter, a suitable person, who shall have the qualification of an elector in said district, who shall be superintendent of the common school fund in that part of the county of Warren aforesaid, who shall give bond, with sufficient security,, to be approved by the commissioners of said county of' "Warren, made payable to the treasurer of said county, or Ms successors in office, in the penal sum of double the amount of said fund that may come into his hands, conditioned for the faithful performance of the duties required of him by this act, and for the safe keeping of all moneys that may come into his possession, which bond shall be filed with and recorded by the county recorder; and the returns of said elections shall be signed, sealed, and delivered by the clerks of the several boards of education before designated, to the auditor of said .county, on or before the first Monday following said elections, at which time the said county auditor, in the presence of the clerk of the court of common pleas and probate judge, shall open, count, and declare the result, and therefrom issue a certificate of election to the person having received the highest number of votes.”

The relator claims that elections were duly held in each of said districts, except only the special school district of Deerfield, on the third -Monday of September, 1868, at which elections there were cast sixty-five legal votes and no more, of which number thirty-four votes were cast for relator, and twenty-nine, and no more, for one Jonas W~. Stubbs. He also alleges that all said legal votes so cast at said election were duly certified by the proper officers as required by law and delivered to the defendant, auditor, etc., on or before the next Monday thereafter; that the defendant, on the day last named, in the presence of the clerk and probate judge, opened and counted the votes cast by the members of the boards of education of Massie township and Harveysburgh special school district, and finding that of such votes four were cast for relator and four for said Stubbs, decided there was no election. He also .alleges that said auditor did then and there wrongfully refuse to open .and .count the votes legally cast by the members of said several boards, which had been duly received by him, and did refuse to declare the relator duly elected to said office of superintendent, as it was his duty to do.

The relator prays that defendant may be compelled by writ of mandamus to open all the certificates of returns of said election so delivered to or received by him, and to count all the legal votes cast at said election, etc.

The defendant, by his answer, alleged that the returns from Massie township and ITarveysburgh. special school districts were the only returns which came into his possession in the manner prescribed by law, namely, that were signed, sealed, and delivered to him by the clerks of the several districts. That in some instances he had received letters by mail, containing papers purporting to be returns, which were opened by him, without knowledge of the contents, before the day specified in the statute; and that one unsealed return was delivered to him by the clerk of the board of Washington township, the vote in which last-' named township was, for relator, 3; for Stubbs, 5. That the aggregate votes, shown by all the papers purporting to be returns, were seventy-three, of which Stubbs received thirty-nine, and the relator received thirty-four, and no more. The defendant denies that it was his duty to count the alleged returns, which came into his possession otherwise than in the manner prescribed in the statute, and which had been opened by him without any previous knowledge of the contents, before the day fixed by the statute for the canvass, in the presence of the clerk of the court of common pleas and probate judge.

The testimony offered in the case proves substantially the facts alleged by the defendant in his answer.

The prime question made in this case relates to the qualification of voters at the election of such superintendent. The relator claims that no person is qualified under the statute to vote for superintendent, who does not reside within the Virginia military district. On the other hand, the defendant claims that residence within the military district is not essential to such qualification. The terms of the statute'are : “ Members of the boards of ediication of the several townships, parts of townships, separate and special school districts, in that part of the county of Warren entitled to said school fund.” While it is true that this fund can be applied for the support of common schools for the education of children residing in the military district, and for no other purpose, it is not claimed that territory within the militar} district may not be attached to territory without the military district, for school purposes, and that children residing in the .territory so attached are not entitled to the benefits of the fund equally with those residing in a school district wholly within the military district.

Nor can it be denied, that so much of said fund as may be distributed to any school district, whether composed, in whole or in part, of territory lying within the military district, is subject to the control of the board of education of such school district. It follows, therefore, we think, not only from the words, but also from the reason and spirit of the statute, that the residence of the members of the boards of education, authorized to vote, was not intended to be an element of qualification. *

It is a sufficient qualification that the voter be a member of any board of education for any school district in said county, composed, in whole or in part, of territory lying within the Virginia military district, wherein children between the ages of five and twenty-one reside. All such districts, whether township, or separate or special school districts, are “ entitled to said school fund.”

This being the true construction of the statute, it is quite clear, from the testimony, that the relator did not receive the highest number of votes cast at said election, and it was not the duty of the defendant to so certify.

It is suggested, however, that upon the relation of Goss, as a person having a common interest in the subject-matter, the writ should be allowed, as prayed for. The statute requires, that the returns shall be “ signed, sealed, and delivered by the clerks ” to the auditor, who shall, in the presence of the clerk of the court of common pleas and the probate judge, “ open, count, and declare the result.” We think it is the evident design of the statute that the returns shall be “ sealed up,” and so remain until opened in the presence of the officers named. And it seems to ns that the returns should be delivered to the auditor by the clerks in person. But without determining the legal effect of the counting of returns received by the auditor through the mail, or unsealed, if he had assumed to canvass them, we are of opinion that it was not his clear duty to receive them in that manner or condition; and, under the circumstances of this case, he ought not now be commanded tc proceed with the count. 6 Texas, 457.

Peremptory writ refused.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State, on relation of the Trustees of Columbus Water-Works v. Philip W. Corzilius, Treasurer of Franklin County, and ex officio Treasurer of the City of Columbus.
    Mandamus.

      E. L. Taylor and Henry C. Taylor, for plaintiffs.

      Lorenzo English and James E. Wright, for the defendant.
   By the Court.

1. The treasurer of a city or village having a board of water-works trustees is required, under section 8, chapter 1, division 8, of the municipal code of 1878 (75 Ohio L. 342), to disburse the water-works funds deposited with him in accordance with section 7 of said act, upon orders drawn by the board of trustees and signed by one of the trustees and countersigned by the clerk of the waterworks.

2. Such an order must show upon its face that it is the order of the trustees. The refusal to pay an order drawn in the following form

“Water-Works Order.

“City Water-Works Oeeioe, \

Columbus, 0., January 13,1879. j

“Treasurer of Franklin County :

$39.00. Pay to the order of S. P. Axtell, Secretary, thirty-nine dollars, for miscellaneous expenses, and charge to water-works fund.

“ D. H. Royce, Trustee.

S. P.' Axtell, Secretary,”

does not put the treasurer in default, as it does not show that it is the order of the trustees.

Peremirtory writ refused.


text:
    Campbell v. The State of Ohio.
    1. Upon a trial under an indictment containing a single count, charging the defendant with the embezzlement of moneys, where it appears that the moneys were the proceeds of several notes placed in his hands by his employer at different times, and collected by him from different persons and at different times, such facts alone do not constitute a ground for requiring the prosecutor to elect upon which of the sums so collected the state will rely for conviction.
    2. A person having in his possession certain promissory notes as indorsee. who employs an agent to collect the same and account to him for the proceeds, is an employer, within the meaning of the act against embezzlement; and upon the trial of the person so employed for the embezzlement of the proceeds, it is no defense to show that his employer was hound to account to another for the moneys.
    3. Where a person, not engaged in the business of collecting moneys for others as an independent employment, is employed to collect money for another, subject to his direction and control, the relation of principal and agent is thereby created. And in such case the agent may he guilty of embezzlement, although he was to receive for his services a per eentage of the moneys collected. .
    4. When an agent is prosecuted for the embezzlement of his employer’s monoy, in a certain county wherein he bad possession of the money, and in which it was his duty to account to his employer upon demand being made, it is no defense to show that he had expended the money for his own use in another county.
    5. Under an indictment for embezzlement, which charges the offense to have been committed after the act of May 5, 1877 (74 Ohio L. 249, sec. II), took effect, the defendant can not he convicted of an offense committed before the taking effect of said act, notwithstanding the right of tho state to prosecute for the violation of a former statute (66 Ohio L. 29, which was repealed by the act of May 5, 1877), was saved by the act of February 19, I860 (S. & S. 1).

      Error to the Court of Common Pleas of Huron county;
    The plaintiff in error, defendant below, was convicted in. the Court of Common Pleas of Huron county, on an indictment, containing a single count, charging him, as agent of Thomas B. Poster, with the embezzlement of certain sums of money belonging to Poster, which, it was alleged, had come into his possession by virtue of his employment as such agent, from divers persons^ to wit: the sum of $50.00 received from one A. W. Maynard; $74.00 received from one John Scott; $70.00 received from one H. Gambie; and $72.00 received from one John Baxter. The sum found by the jury to have been embezzled was $47.50. .
    The record shows that Durston, Wood & Co., of Syracuse, N. Y., being the owners and holders of certain promissory notes executed by Maynard, Scott, Gambie, and Baxter, respectively, indorsed and transfered the same to said Poster, of same place, without consideration, and for the purpose of collection merely," and that Poster transmitted the same, by mail, at different times, to the defendant below, for the purpose of collection. The defendant, who resided at Huron county, Ohio, accepted the employment, and undertook the collection in consideration of a certain percentage of the amount collected.
    The testimony offered on behalf of the state tended to prove that the Maynard note, calling for $65.00, was transmitted to the defendant on the 4th day of October, 1876; the Scott note, for $68.93, November 28, 1876; the Gambie note, for $69.00, December 18, 1876; and the Baxter note, for $-, February 21, 1877.
    The testimony, on the part of the state, also tended to prove that the defendant received the sum of $50.00 from Maynard, at Huron county, on the 3d'of November, 18.76; the sum of $10.00 from Gambie, at Seneca county, on the 26th of January, 1877, and the amount of the Scott note at a time and place not stated.
    On the 4th of January, 1877, the defendant wrote to Poster that Maynard’s note had been left with a justice of the peace, and that the judgment therein would likely be stayed for nine months, and that he need not expect that money (with some other money named) before the end of nine months.
    On the 20th of September, 1877, Poster, by letter, directed the defendant to deliver to Hurston, Wood & Co., all the notes, or proceeds of notes, sent to him for collection ; and afterward, about the 22d of December, 1877, one Griffin, the attoi'ney of Durston, Wood & Co., demanded of the defendant the notes or proceeds, at which time, the defendant admitted the receipt of the moneys above mentioned, and also admitted that he had converted the same to his own use. Shortly after this demand, and upon the failure of the defendant to account, this prosecution was commenced.
    At the close of the testimony on the part of the state,.the defendant moved the court to require the prosecuting attorney to elect on which of the. transactions stated in the indictment, and which the testimony tended to prove, the state would proceed and rely. This motion was overruled, and defendant excepted.
    Such further statement of the case as is necessary to understand the points decided, will be found in the opinion.

      Wickham & Wildman, for plaintiff in error :
    1. The court erred in not requiring the state to elect upon which one of the several transactions it would rely for a conviction. 1 Bishop’s Criminal Procedure, 210; Gravatt v. State, 25 Ohio St. 162.
    2. The act of May 5, 1877, repealed the act of 1869 (66 Ohio L. 29), and the plaintiff in error committed the acts complained of while the act of 1869 was in force, and the indictment should have charged him with an offense under that statute.
    3. The plaintiff in error was employed to collect money upon a commission, and stood in the same relation as a commission merchant or an attorney, and hence had a right to mingle the moneys collected with his own, and was not bound to return the specific money collected, but was simply indebted to Ms employer for the amount, after deducting his commission. But the indictment charges him with embezzling the specific moneys.
    The plaintiff in error was a joint owner of the money, when collected. The money must have belonged entirely to another to bring the case within the statute. Commonwealth v. Stearns, 2 Met. 343; 11 Met. 64; 107 Met. 221; 9 Gray, 5; 22 Minn. 41; 3 Story, 646.
    4. The intent to convert, and the conversion, must concur in point of time. 1 Bishop’s Cr. L. §§ 206, 207.
    5. As to venue, see Gravatt v. State, 25 Ohio St. 162.

      L. C. Laylin, prosecuting attorney, and G. W. Knapp, for the state:
    The indictment is sufficient. 66 Ohio L. 29 ; 74 Ohio L. 249, 334 § 4 ; 2 Wharton’s Cr. L. § 1927, note. Effect of repeal, S. & S. 1.
    As to election, see 74 Ohio L. 334, § 1; Gravatt v. State, 25 Ohio St. 162; Brown v. State, 18 Ohio St. 514.
    As to agency. 2 Bishop, 347, §§ 347, 348. Mode of payment, 2 Bishop, 338-347; 2 Archbold Pr. and PI. 1347, § 450. Employment, 1 Am. Crim. Rep. 146 ; 2 Russell on Crimes, 172; 107 Mass, 221; Roseoe on Or. Ev. 441; 100 Mass. 1; 2 Archbold’s Cr. Pr. and PI. 1347; 1 Crown Cases, 198, 199; 2 Moody, 128; Id. 329 ; 15 Wend. 147.
    As to ownership. Huling v. State, 17 Ohio St. 589; Calkings v. State, 18 Ohio St. 166; 2 Bishop (5 ed.), 789; 15 Wend. 147; 2 Archbold’s Cr. Pr. and Pl. 1343, 1344.
    As to venue. Gravatt v. State, 25 Ohio St. 168; Stanley v. State, 24 Ohio St. 170; Foster v. State, 19 Ohio St. 415; Croy v. State, 32 Ind. 384; 2 Bishop’s Crim. Pr. 294, § 291; 2 Archbold, 566.
   McIlvaine, J.

We think the court did not err in refusing the motion to compel the prosecutor to elect upon which transaction he would rely for a conviction.

Upon the state of the testimony at the time this motion was made and overruled, the jury might well have found that no part of the moneys collected by the defendant had been appropriated to his own use, until after the several sums had been received, and that the whole amount was converted and appropriated by the same act. Although the notes had come into the defendant’s possession at different times, and the several sums collected thereon had been received by him at different times and places, yet if the whole amount was in his hands at one time, and was embezzled in one transaction, it is quite clear that but one offense was committed.

It is true, that the letter of defendant, of January 4,1877, tended to show that the money received from Maynard was converted before the money was received from Gambie, and, no doubt, the jury only found the embezzlement of the Maynard money, less five per cent, commission fees. Nevertheless, the tendency of that letter was to show an intention to embezzle, rather than any act inconsistent with the rights of the employer. And if the jury had so regarded the effect of the letter, the only testimony showing the act of conversion, which is as essential to a conviction as is the intent to embezzle, would have been found in the demand and refusal to account, in December, 1877, after all the moneys had been collected.

It is also claimed that Poster was not the owner of the money within the meaning of the statute, and that the conviction of the defendant for the embezzlement of his property was wrong. The statute of May 5, 1877 (74 Ohio L. 249, sec. 11), under which the indictment was found, provides: “An officer, agent, clerk, servant, or employe of any per-, son (except apprentices and persons under the age of eighteen years), who embezzles or couverts to his own use, or fraudulently takes or makes away with, or secretes with intent to embezzle, or convert to his own use, any thing of value which'shall come into his hands by virtue of his employment,” etc.

Poster was defendant’s.employer, and it was to him that defendant, under his employment, was bound to account. This brings the case within the statute, although Foster may have been bound, to account over to Durston, "Wood & Co.

It is also claimed that inasmuch as the defendant was entitled to a commission out of the funds collected as compensation for his services, he was a joint owner of the money, and was not therefore an agent within the meaning of the statute. This claim is not well founded. Although the defendant was entitled to a percentage of the moneys collected for his services, and might have taken and retained such percentage without being guilty of embezzlement, yet the entire sum, until such division was made, belonged to his employer, and he was a. mere agent and custodian. The controlling difference between the relation of attorneys, auetioners, warehousemen, etc., with their employers, and the defendant with his employer, is this: The former engage in an independent employment, subject only to the usages of their different lines of business, while the latter was subject to the direction and control of his em-> ployer. And while the former may not be subject to the penalties of this statute, the latter is clearly embraced within its terms and meaning.

It is also claimed that the court erred in the charge as to the venue. Upon this subject the charge was as follows: “ And now, gentlemen, you will, if you find the defendant guilty of embezzlement, inquire whether the act was committed in Huron county. Now, gentlemen, if you shall find that the defendant received and had this money in his possession in Huron county, and while it was so in his possession in Huron county he formed the intention — the purpose — to appropriate the money to his own use, and in pursuance of that purpose so formed in Huron county, he did appropriate the same to his own use, either by expending the same in Seneca county or any other county or place, or if he did not expend it, but in pursuance of such intention so formed in Huron county, he kept the money in his own pocket with the intention of permanently depriving his employer and the owner thereof of said money, and, upon demand, with that intention refused to pay it over, then in either case the crime would be committed in Huron county. But if he received and had the money in his possession in Huron county, and carried the. same into Seneca or any other county, and then for the first time formed the purpose to appropriate the money to his own use, and in pursuance of such intention so formed he did appropriate the same td his own use in such county, then the crime would not have been committed in Huron county. If the defendant formed the purpose in Huron county to convert the moneys or any of them 'mentioned in the indictment, but did not in fact convert them or any of them in Huron county, he can- not be convicted of embezzlement in this case.”

The objection urged against this instruction is, that it would make the crime of embezzlement complete in the county where the criminal intent was formed, although the act of conversion took place in another. "We think the objection to the charge is not well taken. It was undisputed on the trial that the defendant refused to account to his employer for the moneys, upon demand made, in Huron, the county of his residence. The case, therefore, put to the jury by the charge was this: An agent having money of his employer in his possession in a certain county where it was his duty to account upon demand being made, forms the purpose to embezzle it, and carries it, in pursuance of that purpose, into another county and there expends it, and afterward, on demand, refuses to account in the first named county, such agent is guilty of embezzlement in the county first named. We think the venue was well laid in the county from which the money was carried for the purpose of expending it, and in which the refusal to account was made. The removal of the money from such county for such purpose, as well as the refusal to account, was an act of embezzlement. The fallacy of the plaintiff’s position is in the assumption that the only act of embezzlement is in the paying out of the money by the agent for his own use. Suppose he had retained the money in his own possession and had merely refused to account, the crime would have been complete; while, on the other hand, if the money had been expended, and he had accounted at the proper time with his employer by the payment of other money of equal value, no offense would have been committed.

The indictment charged that the offense was committed on the 28th day of January, 1878. The statute against embezzlement then in force took effect from and after the first day of July, 1877. Testimony had been offered, tending to prove that the offense was committed previous to the taking effect of that act, and other testimony tending to show that the offense was committed subsequent to the taking effect of the act. The court refused to charge the jury, though requested so to do, that the defendant could not be convicted upon the indictment under which he was on trial, unless the jury should find that the offense was committed after the act of May 5, 1877, took effect, to wit, at least as late as July 1,1877. In this refusal, we think, the court erred.

The theory upon which the state seeks to maintain the conviction, notwithstanding the refusal to charge as above stated, is this: The act of March 15,1869 (66 Ohio L. 29), which was repealed by the act of May 5, 1877, defined the crime of embezzlement, and provided for its punishment. It is true, the offense, as defined in the act of 1869, differs, in some respects, from that of 1877, but the difference is not material to the disposition of the question here decided. Although the act of 1869 was repealed by the act of 1877, the right of the state to prosecute offenses committed in violation of the former was saved by the act, February 19, 1866 (S. & S. 1), and hence, the state claims that the defendant might have been properly convicted, upon the trial below, of embezzlement committed in violation of the repealed statute. This claim on the part of the state can not be supported. If the indictment had charged the offense to have been committed in violation of the repealed statute at a time when it was in force, the act of 1869 would have supported the prosecution. But this was not done. The offense was charged to have been committed after the act of 1860 had been repealed, and therefore the act of 1866 does not apply. Whether or not an offense punishable by law is charged in an indictment, must be determined by the state of the law at the time the offense is alleged to have been committed. For the purpose of determining this, the question of time, as laid in the indictment, is material, otherwise an indictment would be good although the facts averred did not constitute an offense under any law, at the time when they are alleged to have been committed, provided a law was in force at the time laid in the indictment, which made them an offense.

Judgment reversed, and cause remanded for- a new trial.


author: Gilmore, C. J.

text:
    The State of Ohio v. Harper.
    1. The general rule of evidence is, that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations.
    2. Upon an indictment for unlawfully using an instrument upon the person of a woman, with intent to destroy a vitalized embryo, in consequence of which she died, her dying declarations are inadmissible. '
    Error, on exceptions, to the Court of Common Pleas of Allen county.
    The defendant was indicted, under the act of April 13, 1867 (S. & S. 271), in one count, for using an instrument in and upon one R. G-., who was pregnant with the vitalized embryo "of a child, “ with intent, then and thereby, the vitalized embryo unlawfully to kill and destroy; ” and that by' the use of the instrument for said purpose, the vitalized embryo was destroyed. In another count it is alleged that the instrument was used with the same intent,- and that the death of the said R/ G-. was thereby caused.
    On the trial, the state laid the foundation for the admission of the dying declarations of the said R. G., and then offered to prove that while the said R. G. was in extremis, she told, the witness >that the defendant had used an instrument in and upon her person' and womb, for the purpose of producing an abortion, in consequence of which she had a miscarriage a few hours before, and that her sickness was wholly caused thereby. The defendant objected to the admission of these declarations of R. G. The court sustained the objection and excluded the testimony, and the defendant was acquitted.
    ■ The prosecuting attorney took exceptions to the opinion and ruling of the court, and also took a bill of exceptions, setting out the facts above stated. This is a proceeding, under sections 157-160 of the code of criminal procedure (69 Ohio L. 310, 311), to obtain the decision of this court on the question raised.

      E. A. Ballard, for plaintiff in error.

      Isaiah Pillars, for defendant in error:
    As to the admission of dying declarations, see 1 “Wharton Criminal Law (7 ed.), sec. 675, and authorities there cited; 1 Greenleaf on Evidence, § 156; 3 lb., § 236; 1 Taylor on Evidence, 644R646; 2 Russell on Crime, 761; Rex v. Lloyd et al., 4 C. & P. 233; Rex v. Hutchison, 2 B. & C. 608; Brown v. Commonwealth, 73 Penn. St. 321; Lambeth v. Mississippi, 23 Miss. 322; The People v. Davis, 56 N. Y. 96; Wilson v. Borem, 12 Johns. 286; 1 Rex v. Edwards, 4 E. R. 519 (Moak’s notes).
   Gilmore, C. J.

This was an indictment for unlawfully using an instrument with the intent of producing an aboi-tion, and not an indictment for homicide. The State v. Barker, 28 Ohio St. 583; The People v. Davis, 56 N. Y. 95.

The death of R. G. was not the subject of the charge, and the death was alleged only as a consequence of the illegal act charged, which latter was the only subject of investigation.

Did the court err in rejecting the dying declarations of R. G. in proof of the charge?

We think not. The general rule is that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. Rex v. Mead, 2 B. & C. 605; 1 Greenl. Ev. § 156; Rex v. Lloyd, 4 C. & P. 233; Runyan v. Price, 15 Ohio St. 8.

Upon an indictment for feloniously using an instrument upon the person of a woman, who afterward died, with intent to procure an abortion, the dying declarations of the woman are inadmissible. Reg. v. Hind, 8 Cox C. C. 300; 56 N. Y., supra.

Exceptions overruled.


text:
    Hezekiah S. Bundy v. Ophir Iron Company et al.
    Error to the District Court of Jackson county.
    Motion of Orlando M. Anthony and others, defendants in error, for leave to file cross-petitions in error.

      W. A. Hutchins and Hoffman & Hoffman, for the motion.

      Laird & Tripp and E. B. Bingham, contra.
   By the Court.

As held in Shinkle v. First National Bank, 22 Ohio St. 516, it is competent for a defendant in error to file a cross-petition, asking the reversal of the judgment for errors prejudicial to him, and not assigned in the plaintiff’s petition. And as a petition in error may, under the present legislation, be filed without leave of court, the same rule will be applied to the cross-petition.

Motion denied.


author: White, J.

text:
    Redmond v. The State.
    1. In an indictment for obtaining goods by false pretenses, the pretenses^ consisted of representations by the accused of the value of several stocks of goods he owned, of the amount of his indebtedness, and of' the amount that he was worth: Held, That negative averments in the-indictment, which, in effect, merely deny the representations to be literally true, but which do not negative their substantial truth as a means whereby the accused obtained credit in the purchase of goods, are bad.
    2. Where, in such an indictment, the only description of the property is “ a. certain lot of dry goods,” the description is insufficient.
    Error, to the Court of Common Pleas of Hamilton county.
    The plaintiff in error was indicted in the Court of Common Pleas of Hamilton county, for obtaining good by false-pretenses, of John Shillito & Co. The false pretenses, as charged in the indictment, are as follows: “ That he (T. J. Redmond, Jr.) had $20,000 to $25,000 stock in Nashville store, and $10,000 to $15,000 in Galatin store; and that he (the said T. J. Redmond, Jr.) did not owe on said stock the sum of six thousand ($6,000) dollars, all told; and that he (the said T. J. Redmond, Jr.) was worth at least fourteen thousand ($14,000) dollars; by which said false pretenses-the said T. J. Redmond, Jr., then and there, unlawfully and fraudulently, did obtain from the said John Shillito, Wallace Shillito, and Gordon Shillito, partners as John Shillito- & Co., a certain lot of dry goods, of the value'of sixteen hundred and fifty-five and four hundredths ($1,655.4) dollars, of the personal goods, chattels, and property and moneys of the said John Shillito, Wallace Shillito, and Gordon Shillito, partners as John.Shillito & Co., with intent; then and thereby, to cheat and defraud the said John Shillito, Wallace Shillito, and Gordon Shillito, partners as John Shillito & Co., of the same; whereas, in truth and in fact,, he, the said T. J. Redmond, Jr., did not have $25,000 stock in Nashville store, nor from $10,000 to $15,000 in Galatin •store; that he, the said T. J. Redmond, Jr., did not owe but •$6,000 on said stock, all told, bnt on the contrary, was indebted and did owe an amount of money greatly in excess of said $6,000; and that he was not worth, at least, $14,000; and the said T. J. Redmond, Jr., at the time he so falsely pretended, as aforesaid, then and there well knew the said false pretenses to be false.”
    A demurrer was interposed to the indictment, which was overruled. The accused then entered a plea of not guilty, and on the trial, was convicted and sentenced. To reverse this sentence, the present proceeding in error is prosecuted.

      Follett $ Dawson, and Tilden, Buckwalter &¡ Campbell, for plaintiff in error.

      Drew § Jordan, for defendant in error.
   White, J.

The indictment in this case is bad, on two grounds:

1. The falsity of the pretenses'is not sufficiently averred.

2. The goods which the accused is alleged to have obtained, are not sufficiently described.

As to the first ground. The false, pretenses alleged are material only in so far as they were operative in causing the vendors to give credit to the accused in his purchase of the goods; and that the pretenses did thus operate must •appear from the facts stated in the indictment.

It is a rule of criminal law, based upon sound principles, that every indictment should contain a complete description of the offense charged. It should set forth the facts constituting the offense, so that the accused may have notice of what he is to meet, and so that the court, applying the law to the facts charged against him, may see that a crime has been committed. Lamberton v. The State, 11 Ohio, 284. “ As to the degree of certainty which is requisite, the indictment must state the facts of the crime with as much certainty as the nature of the case will admit. In a criminal charge, in the language of Lord Mansfield, there is no latitude of intention to include any thing more than is charged; the charge must be explicit enough to support itself.” 2 Burr. 1127. The People v. Gates, 13 Wend. 317. The want of a direct allegation of any thing material in the description of the substance, nature or manner of the crime, can not be supplied by any intendment or implication whatsoever. 2 Hawkins, ch. 25, § 60; 1 Archbold Cr. Pr. and PL *85.

In considering the sufficiency of the indictment in the light of these principles, we must assume that the representations charged to have been made by the accused are true, except to the extent that their truth is denied. To constitute a false pretense there must be a representation of facts which is untrue. Regarding, therefore,- the representations set out in the indictment as true, except in so far as their truth is denied, the indictment shows no false pretenses which can reasonably be supposed to have operated as the means by which the accused obtained the goods on credit. There is no negation of the first pretense or representation set out in the indictment, even in form. The other representations are denied to be literally true; but their substantial truth as a means of obtaining credit by showing the ability of the accused to pay for the goods he purr chased, is not denied. The negations are in the nature of negatives pregnant, and involve or admit an implication, •which, considering the nature and object of the representations, destroys or renders their effect immaterial.

As to the second ground. The particular time laid in the indictment is not material, nor is it necessary that the goods should be of the value stated. The only description of the goods, therefore, contained in the indictment, is “a certain lot of dry goods;” and the question is whether this description is sufficient. We think it is not.

It is laid down that .the same rules are applicable to the description of the property in a charge for obtaining goods by false pretenses, as in larceny. 2 Wharton C. L. § 2155; Wharton Pree. Inch (529), note 1. The same reasons for accuracy and particularity of description exist in both cases, and we think both are governed by the same rules.

The rule is thus stated by Russell: “ The same certainty is required in an indictment for stealing goods as in trespass for goods, and rather more certainty; for what will be a defect of certainty in a declaration will be much more defective in an indictment. . . . The property itself must be accurately described; it is not, therefore, sufficient to say that the prisoner stole the goods and chattels of B., without showing what goods and chattels in certain — as one horse, one ox, etc. So an indictment charging the stealing of ‘ one hundred articles of household furniture ’ would be bad.” 2 Russell on Crimes, *118. See also 1 Wharton C. L., §§ 854, 355.

The goods should be described with such certainty as will enable the jury to decide whether the chattel proved to have been stolen is the very same with that upon which the indictment is founded, and enable the defendant to plead his acquittal or conviction to a subsequent indictment relating to the same chattel. Archbold Grim. Prac. & PI. (8 ed.) 1145; Starkie Grim. PI. 213.

We are aware that under the code of criminal procedure (74 Ohio L., § 4), no indictment is to be deemed invalid for any “ defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” But we are not prepared to say that such a lumping, indefinite description of the goods as is here laid does not tend to the prejudice of the accused. Dry goods is a generic term, and embraces an indefinite number of species or classes of goods; and there is no reason why the accused should not have had the benefit of a more specific description. Any lot of dry goods obtained from Shillito & Co. at any time would answer the description in the indictment.

Judgment reversed, demurrer to the indictment sustained, and the discharge of the plaintiff in error ordered


author: Okey, J. Boynton, J.,

text:
    Kirchner v. Myers.
    1. In an action under the act of 1870 (67 Ohio U. 102), to recover damages to means of support by reason of intoxication caused by liquors alleged to have been sold continuously, during a period of three years, to a person in the habit of getting intoxicated, the defendant may offer evidence to show that, during the same period, such person became intoxicated by liquors which he purchased of other persons.
    2. Under said act of 1870, for injury to means of support in consequence of intoxication which caused the death of the intoxicated person, damages resulting from the death can not be recovered. Davis v. Justice, 31 Ohio St. 359, approved.
    Error to the District Court of Hardin county.
    On January 3, 1874, Cynthia Myers brought suit in the Court of Common Pleas of Hardin county, against William, John, and Charles Kirchner. In her petition she states that Frederick Myers was her husband, and had been such for twelve years at the time of his death; that she was dependent on his labor for support; that for more than three years prior to November 15, 1873, and throughout and during all of said three years, the defendants sold, gave, and furnished intoxicating liquors to said Frederick, to be drank, and which were drank by him at the place where sold, in Kenton, in violation' of the liquor law of 1854 and its amendments, said Frederick being then and there a person in tlm habit of getting intoxicated, as they well knew, thereby causing said Frederick frequently to become intoxicated; that by reason of the intoxications thus caused, said Frederick was frequently made sick, and the plaintiff was compelled to nurse him and take care of him; “ that, by reason of giving, selling, and furnishing said liquors, as aforesaid, by said defendants to said Frederick Myers, a sickness was superinduced and brought upon said Frederick Myers which caused his death;” and that, by reason of said acts of the defendants, the plaintiff was. injured in her means of support, etc., and she claimed six thousand dollars damages.
    The answer was a general denial.
    The case was tried to a jury, at the October term, 1875, a verdict for the plaintiff for $550 was rendered, a motion for a new trial was overruled, judgment was entered on the verdict, and a bill of exceptions was allowed.
    The Kirchners prosecuted error in the district court, where the judgment was affirmed, and on leave of this court a petition in error has been filed to reverse the judgments of both courts, the errors assigned in the district court being relied on here.
    On the trial of the cause in the court of common pleas, the plaintiff' below gave evidence tending to prove the issue on her part; “and that on the said 15th of November, 1873, her said husband purchased a half pint of whisky of the defendants, which, when he returned home about half past one o’clock next morning, was all gone, except about one inch thereof in the bottle; that on his return, said morning, he was wounded, as if by a club, on the collar-bone and head, and very wet and muddy; that pneumonia immediately set in, aggravated by said wounds and habit of intoxication, of which pneumonia he died on November 23,1873.”
    The defendants below offered to prove, as matter proper for the consideration of the jury, that Myers was, during the three years mentioned in the petition, in the habit of buying liquor and getting drunk at other saloons in Kenton, kept and owned by other persons; but the court excluded the evidence, and the defendants excepted. They also offered as evidence two petitions filed in the court of common pleas of Hardin county, by the plaintiff below— one against Price & Brush, and the other against one Sorgen, saloon-keepers in Kenton — in which petitions the defendants therein are severally charged with having sold to Myers intoxicating liquors during a period of eight months-next preceding November 15, 1873. In other respects the petitions were substantially the same as the petition in the action against the Kirchners. The court, on objection, rejected the petitions, and the defendants excepted.
    The evidence being concluded, the defendants below, by their counsel, requested the court to charge the jury, among other things, as follows: '
    “ 1. As the law gives a remedy to the wife for the wrongful death of her husband,'and this action is not brought for that, you can not take such death into consideration, excepting only as it affected her means of support up to the commencement of this action.
    “ 2. If you find that the action was commenced by the plaintiff after the death of her husband, under the act of the general assembly passed May 1, 1854, and the acts amendatory thereto, before the plaintiff’ is entitled to recover damages for impairing her future support, by reason of the unlawful selling of the liquors by the defendants to deceased, you must find that his death was caused, in whole or in part, by said unlawful selling.”
    The court refused to charge as requested, hut did charge as follows: “ The rule of damages is the diminution resulting to her present and future support by reason of the intoxication. And in order to settle this, you must consider all the evidence and circumstances in this particular case, and determine it on its own facts, fully compensating the plaintiff' as far as money can do it. You may also allow exemplary damages if you think the case requires and justifies it.” Again: “ If you find the defendants are guilty of the charges in the petition, then you will find a verdict for the plaintiff, and the amount must fully compensate her for all she has lost in her means of support, both present and future.” The charge contained no direct statement as to the death of Frederick Myers, or the effect of his death on the question of damages, nor did it contain any allusion to the matter, except as above stated.

      W. L. Walker and Kernan Kernan, for plaintiff's in error :
    •Counsel claimed, among other things, that the damages should have been limited to the time of bringing the suit, and cited 21 Ohio St. 191; Comyn’s Digest, Damages; Hamilton v. Veene, 2 Saund. 196; Duncan v. Markley, 1 Harper, 276; Powers v. Ware, 4 Pick. 106; Pierce v. Woodward, 6 Pick. 206; Thayer v. Brooks, 17 Ohio, 489.

      W. & J. H. Lawrence, for defendant in error :
    I. It is not error to exclude from the jury other petitions by plaintiff below, pending against other parties in the same court, claiming damages by reason of sales of intoxicating drinks during a portion of the time covered by this action.
    1. The evidence would not tend to disprove the sales here complained of, and hence is not matter of defense. It is not claimed as defense.
    2. It was not matter in mitigation of damages.

      a. It is no mitigation that others contributed to the injuries here complained of. Woodheather v. Risley, 38 Iowa, 486; Fountain v. Draper, 49 Ind. 441; Hackett v. Smelsey, 77 Ill. 109; Emery v. Addis, 2 Chicago Legal News, 336 ; Stone v. Dickinson, 5 Allen, 29 ; Jack v. Hudnall, 25 Ohio St. 255 ; Boyd v. Watt, 27 Ohio St. 259; 1 Bishop Crim. Law, 630-642; Jewell v. Wanshena, 8 Chicago Legal News, 324; Kearney v. Fitzgerald, Iowa Sup. Court, June, 1876. See a monograph by John D. Lawson, St. Louis, 1877, “The Civil Remedy for Injuries from Sale of Intoxicating Liquors,” 24. Mason v. Shay, 1 Am. Law Record, 554; Miller v. Patterson, 31 Ohio St. 419; Roth v. Eppy, 16 Am. Law Register (25 O. S.), 111.

      b. The evidence did not even tend to show that other parties contributed to the same injury here complained of; it was not proposed to make such proof. Stull v. Wilcox, 2 Ohio St. 569.

      c. The necessary effect of the evidence would be to mislead the jury, and reduce the verdict, by reason of the other claims on which nothing might ever be made.
    , II. The charge to the jury carefully limited the plaintiffs’ right to damages, to the injury to her means of support, and exemplary damages.
    1. There is nothing in it which sanctions damages for “ violence to feelings,” or “ damages for the death of the husband.” “ Violence to feelings ” are within the statute, since it gives an action to all who may be “ injured in person.” Peterson v. Knoble, 35 Wis. 80 ; Wightman v. Devere, 33 Wis. 570. But if this were not so, “ violence to feelings” may be considered to justify exemplary damages; Freese v. Tripp, 6 Chicago Legal News, 330; Roth v. Eppy, 16 Am. Law Register, 111 (O. S. vol. 25), Feb. 1877.
    2. The omission to charge as requested is not error, for two reasons:

      a. The charge given covered all that was material, and substantially all that was proper, in the charges, as asked. Stewart v. State, 1 Ohio St. 66; Bond v. State, 23 Ohio St. 349.

      b. The first five points asked by defendant, as an entirety, were properly rejected, because they were wrong in limiting damages to the loss in means of support, thereby excluding exemplary damages. Act May 1, 1854, § 7; 4 Curwen, 2671; French v. Millard, 2 Ohio St. 44; Walker v. Devlen, 2 Ohio St. 593; Eckles v. State, 20 Ohio St. 515; Adams v. State, 25 Ohio St. 584; 29 Ohio St. 512; Serviss v. Stockstill, 30 Ohio St. 418; Insurance Co. v. Tobin, 32 Ohio St.
    III. The rule of damages given to the jury was proper.
    1. The authorities show this. Mulford v. Clewell, 21 Ohio St. 191; Schneider v. Hosier, 21 Ohio St. 98-112; Mason v. Shay, 1 Am. Law Record, 554; Schaffner v. State, 8 Ohio St. 643; Strader v. Mullane, 17 Ohio St. 626; Fuller v. State, 12 Ohio St. 433; Wrightman v. Devere, 33 Wis. 570; Woolheather v. Risley, 38 Iowa, 189; Hackett v. Smelsey, 77 Ill. 109; Bullard v. Briggs, 7 Pick. 533; Buzick v. Buzick, 8 St. Louis Cent. Law Jour. 786; Emory v. Addis, 6 Chicago Legal News, 335; Jackson v. Brookins, 5 Hun, 533; Krach v. Heihman, 4 Cent. Law Jour. 233; Schmidt v. Mitchell, Sup. Ct. Ill. 1877.
    2. The charge limited damages to “ means of present and, future support, by reason, of intoxication.” This did not include damages by reason of death; it excluded this, since intoxication does not operate after death.- The charge given was sufficiently explicit. It did not include any loss of means of support after death.
    3. If it did, it can be sustained. Jackson v. Brookins, 5 Hun, 533.
    The particular injuries specified in the statute must be compensated, where those injuries result as a direct conse'quence of death produced by the unlawful intoxication. A .judgment for this particular class-of injuries, under this statute, would be a bar to an action for the same injuries under the act of March 25, 1851. 2 Curwen, 1673; Davis v. Justice, 31 Ohio St. 365. This case holds that general damages, or all damages resulting from death, can not be recovered. But it does not hold that so far as death cuts off “ means of support,” no damages can be recovered for that.
    4. The fourth charge asked was properly refused, for the two reasons ” heretofore shown.
    IY. The court properly refused to charge that the jury “ must find that the death was caused, in whole or in part, by the unlawful selling, before the plaintiff is entitled to recover damages for impairing her future support.”
    These charges, as asked, are not very clear.
    1. The authorities cited show that the loss of future support — support lost after the sale — may be recovered for, where no death has occurred. Mulford v. Clewell, 21 Ohio St. 191.
    2. The court did not charge, as authorized by Jackson v. Brookins, 5 Hun, 533, that damages to support after death occasioned by sales, might be recovered.

      John D. King, also, for defendant in error :
    Act of 1870, 67 Ohio L. 102; 21 Ohio St. 103; Boyd v. Watt, 27 Ohio St. 259 ; 6 Ohio, 23.
   Okey, J.

The charge in the petition is that the defendants below had, in Kenton, during three years next preceding November 15-, 1873, continuously sold to Frederick Myers intoxicating liquors,, thereby causing him frequently to become intoxicated, whereby the plaintiff below was injured in her means of support. The defendants offered evidence tending to prove that, during a portion of that time, Myers had repeatedly purchased liquor of other persons in Kenton, and become intoxicated thereon.. They also offered the written admissions of the plaintiff below, tending to.prove the same fact. But the court excluded the evidence, both oral and written, and in this, we think,, erred.

Under the act of 1854, as amended in 1870 (67 Ohio L. 102), which governed this case, it was provided that the injured party should “ have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by giving or selling intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons.” No doubt, under this act, if two sellers, though wholly independent of each other, contributed, by their unlawful sales, to the same intoxication, whether of long or short duration, a wife injured thereby m her means of support, could recover damages for the whole injury, in a joint action against them ; and she might recover against either or both of them, in a separate action or actions, the same amount of damages, though she could have but one satisfaction. But this did not render a party liable for the independent, unlawful act of another seller, having no such connection with any unlawful sale he may have made.

Evidence having been given tending to prove that for three years immediately preceding November 15,1873, the-defendants continuously sold to Myers intoxicating liquors, upon which he frequently became intoxicated, the jury might readily infer that the defendants caused all the injury which the plaintiff below sustained by reason of the intoxication of her husband. Surely, to rebut such inference, the defendants should have been permitted to offer evidence that, during the same time, Myers purchased liquor and became intoxicated at other saloons in Kenton. It would have been for the jury to say, whether the sales at other saloons had simply contributed to or increased the intoxication produced by liquors sold by the defendants below, in which case the evidence could not have aided them ; or whether, in fact, the liquors procured of persons other than the defendants caused independent intoxications, to which the defendants below did not contribute, in which case the evidence should have been considered in their favor, and have had such weight as the jury might think, under the circumstances, it was entitled to receive. And the admissibility of such evidence is more apparent when it is remembered that the statute places this action on the ground of a suit in tort involving fraud or malice, as to the right of the jury to include in their verdict exemplary damages; for the amount of such damages can only be properly determined on the fullest consideration of the real cause or causes of the injury, with the attending circumstances. See Engleken v. Webber, 47 Iowa, 558.

Miller v. Patterson, 31 Ohio St. 419, in no way militates against, but supports this conclusion. Th ere separate actions had been brought by the same person against different defendants, the petitions being, in form, identical; and it was held, “ the fact that the plaintiff in one case received a sum of money in satisfaction and discharge of her cause of action, was no defense in the other case, if, in fact, the intoxications were separate and distinct.”

We are of opinion, furthermore, that the court erred in failing to charge the jury, and in the charge given, as to the effect of the death of Myers on the amount of recovery. The case was tried before Davis v. Justice, 31 Ohio St. 359, was decided, and hence, in view of the difficult question presented, it is not strange that court and counsel fell into error. It was held in Davis v. Justice, that in an action under the above mentioned act of 1870, for injury to means of support in consequence of intoxication which caused the death of the intoxicated person, damages resulting from the death can not be recovered. True, the request made in this case did not contain a correct statement of the law, and the court properly refused to charge as requested. It is also true that the failure to charge a correct proposition of law, pertinent to the ease, will not, ordinarily, afford ground of reversal, if there was no request to charge such proposition. But here the attention of the court was directed by counsel to the effect of death on the amount of the recovery, and the response was, not merely a refusal to charge as requested, but a statement to the jury that if the plaintiff was entitled to a verdict, “ the amount must fully compensate her for all she has lost in her means of support, both present and future;” and no other allusion was made to the effect of death on the amount of the recovery. The jury were authorized, under such a charge, to take into consideration support he might have rendered if death had not resulted in the way stated, which, .as we have seen, is opposed to Davis v. Justice; and hence the charge was not merely misleading, but, under the circumstances, erroneous.

As already stated, the question involved in Davis v. Justice was not free from difficulty. Cases may be found in seeming opposition to that decision. Rafferty v. Buckman, 46 Iowa, 195; Jackson v. Brockins, 5 Hun, 530; Quain v. Russell, 8 Hun, 319; Schroeder v. Crawford, 8 Reporter, 171. On the other hand, it is not without support. Krach v. Heilman, 53 Indiana, 517; Collier v. Early, 54 Indiana, 559 ; Backes v. Dant, 55 Indiana, 181; Shugart v. Egan, 88 Illinois, 56; Brookmire v. Monaghan, 15 Hun, 16, following Hayes v. Phelan, 4 Hun, 733; 5 lb. 335. But, independently of such support, we are satisfied with Davis v. Justice for the reasons stated in the opinion of MeIlvaine, J., concurred in by a majority of the court; and we adhere to that decision.

In the case of Davis v. Justice, it appeared that the plaintiff’s husbaud was run over by a train of cars while intoxicated, and instantly killed. In this case, the evidence tended to show that the intoxication led to exposure, which, together with the enfeebled condition of the system, caused by intemperance, induced pneumonia, which occasioned death. To such a case, and perhaps, indeed, to Davis v. Justice, the principal reason given for the judgment in Krach v. Heilman, supra, where the facts were analogous in this respect to the case under consideration, would also seem to be applicable. There the right to recover, which was based on a statute in terms like our act of 1870, was denied by the application of the maxim, causa próxima non remota spectatur. To the same effect is Shugart v. Egan, supra.

Judgment reversed, and cause remanded for a new trial.

Boynton, J.,

dissented from the second proposition of the syllabus.


text:
    The Lawrence Railroad Company v. Cobb.
    1. In an action for an injury to abutting property by reason of the construction of a railroad on a public street or highway, the plaintiff’s title may be established by proof of adverse possession.
    2. "Where coverture is relied on to save an action from the bar of the statute of limitations, the marriage may be shown by proof of cohabitation as husband and wife.
    3. The limitation of two years within which an action must be commenced as prescribed in section 12 of the general corporation act, as amended April 15, 1857 (54 Ohio L. 183), applies only in cases where a railroad is constructed in a highway, or on other public ground, under an agreement with the public authorities, or after condemnation, as provided in said section.
    4. In awarding damages for an injury resulting from a tort, compensation in the nature of interest may be included.
    Error to the District Court of Mahoning county.
    On the 2d day of April, 1874, Catherine Cobb, a married woman commenced a civil action against the Lawrence Railroad -Company to recover damages for an alleged injury to her lot and dwelling-house by reason of the construction of the defendant’s road.. The defendant’s road was constructed in 1865 and 1866 on the center of a public highway upon which the plaintiff’s lot abutted, and the alleged injury was caused by an excavation in front of the lot, whereby access to the lot was destroyed, etc. It was also alleged that the continued operation of the railroad from the time of its construction to the commencement of the action had destroyed the street as a public highway, to the injury of the plaintiff’s property. The defendant filed an answer, among other things, denying that the plaintiff’was the owner of the lot, and that she was a married woman. The issue was tried by a jury, which rendered a verdict'in favor of the plaintiff’ for $475.08. On the overruling of a motion for a new trial, the defendant filed its bill of exceptions, setting out all the testimony and a part of the charge. The part of the charge excepted to was as follows :
    “ If you find that the plaintiff was a married woman at the time the railroad was constructed, and so remained until the commencement of this suit, then she would not be barred from recovering, because this suit was not brought within two years from the completion of the railroad at the place in question, nor would the statute of limitations bar her from recovering; that to prove the marriage of the plaintiff, it is not necessary that there should be record evidence of her marriage, or that persons should testify that they saw the wedding ceremony performed, but it would be sufficient if you find that plaintiff and Mr. Cobb lived and cohabited together as husband and wife, and raised children.
    “ To entitle plaintiff to recover, it is not necessary to show a connected chain of title in her, back to the original proprietors of the land, but if you find that the railroad was built and has been kept up without any authority obtained by the defendant, then if you find that the plaintiff has been in the possession and occupancy of this house and lot for some time prior to the building of this road, and up to this time, and if you find that the plaintiff has a quitclaim deed of the land, this is sufficient evidence of title to enable plaintiff to recover, though there may be' no evidence of perfect paper title in plaintiff.

      “ If you find for the plaintiff*, in estimating the amount of damages, I do not say that you should compute interest, but I do say you may consider the length of time which she has been kept out of her money.”
    The chief contention by the plaintiff* in error against the judgment below, is based upon alleged errors in these instructions.

      J. T. Brooks, for plaintiff in error, urged :
    1. That-proof of adverse possession did not show such a title in Mrs. Cobb as was necessary to maintain the action. 2. That mere cohabitation is not even -prima facie proof of marriage. 3. That interest should not have been allowed, for the reason that the sum awarded as damages was for the full effect of the injury, and a further sum by way of interest is a double payment for the same injury. 4. That the action was barred by both section 12 of the corporation act (1 S. & C. 278), and by section 14 of the code. 18 Ohio St. 169; Railroad v. Whitacre, 8 Ohio St. 490; Parrott v. Railroad, 10 Ohio St. 624; Williams v. Railroad, 18 Barb. 222 ; Embury v. Conner, 3 N. Y. 521.

      George. F Arrel, and M. W. Johnson, for defendant in error:
    1. The plaintiff below was entitled to interest on the sum found due as damages, from the time of the injury to the time of payment. Railway v. Koblintze, 20 Ohio St. 334: 5 Ohio, 410.
    2. Coverture is excepted from the bar of the statute of limitations. 2 S. & C. 949, § 19.
   McIlvaine, J.

It was shown by the testimony, that the plaintiff had occupied the property claimed by her, from about the year 1843 until the time of trial, a period of thirty years, claiming title, and that, in 1863, one Margaret Stacy had executed to her a quitclaim deed for the same, expressing therein to be in consideration of one dollar. It is claimed by plaintiff in error, that, in an action of this kind, where the right of possession, is not in dispute, hut the right of property is, continued adverse possession is not enough to show title, and that the court erred, on this point, in the charge. We think the testimony on this question was quite sufficient to sustain the verdict, and when the charge is regarded in the light of the undisputed facts in the case, the plaintiff in error has no ground of complaint.

The issue as to the plaintiff’s marriage, was important in the case only as it related to the defense under the statute of limitations. The testimony showed that the plaintiff and Mr. Cobh had been living and cohabiting as husband and wife for many years previous to the construction of the railroad, and had been regarded and treated in the neighborhood as husband and wife, down to the date of the trial below. Upon such evidence the jury was warranted in finding the marriage, and the court did not err in its instructions on this point.

By the provisions of the general statute of limitations,, married women are saved from its operation. § 19, Civil Code of 1853. And if it were conceded (a point we do not. find it necessary now to decide) that the amendment of section 28 of the civil code (67 Ohio L. Ill), giving a married woman the right to sue in her own name, in actions-like the present, withdrew the protection of coverture, still the period of four years, limited by the general statute for the commencement of such an action, had not transpired from the date of the passage of that amended section before the original action was commenced.

It is contended, however, that the period within which the plaintiff was limited in the bringing of her action is controlled and limited to two years by section 12 of the corporation act as amended in 1857. 8. & G. 278. This section, after providing that railroad companies might acquire the right to occupy and use public highways for railroad purposes under an agreement with the public authorities having charge of the highway, or in case of inability to agree by an appropriation, as in case of the appropriation of private property, contains the following proviso: That every railroad company laying down any such track or tracks, upon any such public street, road, alley, or other public grounds, shall be responsible for injuries done to private property by such location, lying upon or near to such public ground, which may be recovered by civil action brought by the owner or owners, at any time within two years from the completion of such track or tracks, before the proper court.”

Now, it is claimed, first, that married women are not saved from the operation of the special limitation provided in this section ; and, second, if she were protected previous to the amendment of section 28 of the civil code (above cited), that more 'than two years elapsed after the passage of the amended section and before the commencement of this suit. Here again we have presented questions which we do not find it necessary to decide. In our opinion the limitation of two years within which the action must be commenced, applies only where the injury to adjacent property results from the occupation of a public highway or other public-grounds by a railroad company under an agreement with the proper public authorities or by appropriate proceedings under the statute in such case made and provided; and that a railroad company who occupies a public highway without such agreement or appropriation ■can not claim the protection of the limitation provided in said section 12.

And it appears from the record before us that the defendant below had not acquired the right to construct its road upon the highway, either by an agreement with the proper authorities or by proceedings to appropriate.

Nor was there error in the charge of the court in respect to the amount of damages. The rule of damages in such case is compensation for the injury, or, in other words, that the injured party should be made whole. And while it is true that such a claim is not one, which,-under the statute, bears interest, nevertheless, if reparation for the injury is delayed for a long time by the wrong-doer, the injured party can not be made whole unless the damages awarded include compensation, in the nature of interest, for withholding the reparation which ought to have been promptly made.

Judgment affirmed.


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    Osborn v. Kistler.
    Where the form of a promissory note, with blank spaces, payable to payee or bearer, was printed, and. after the spaces were filled, the maker signed his name in front of a device consisting of a bracket and the word seal therein, thus, “[seal,]” which device was also a part of the form and. •was printed in ink — Held:
    1. That the device mentioned is a “scrawl seal,” and under the statute of this state has the effect of a common law seal.
    .2. That by affixing his signature in front thereof, the maker adopted the device as his seal.
    3. Such a sealed note is only negotiable by virtue of the statute which requires the negotiation to be by “ indorsement thereon.” S. & C. 862.
    4. In an action on such a note in the name of the holder to whom it was transferred by mere delivery, the maker may set up any defense he could have made against the payee.
    Error to the District Court of Huron county.
    Tbe facts are stated, so far as necessary, in the opinion.

      John M. Lemmon, for plaintiff in error:
    As to whether Osborn was chargeable with notice, so as to defeat a recovery, see Sackett v. Kellar, 22 Ohio St. 554; Johnson v. Way, 27 Ohio St. 374; Davis v. Bartlett, 12 Ohio St. 534; Goodman v. Simonds, 20 How. 343; Seybel v. Bank, 54 N. Y. 288; Edwards on Bills, 318, 688; 1 Parson on N. and B. 258, 260; Lake v. Reed, 29 Iowa, 258; Murray v. Lardner, 2 Wall. 110.
    For the rule, where there is negligence on the part of the maker of a note, see 22 Mich. 479; 29 Wis. 19; 37 Wis. 61; 54 Ill. 196; 51 Mo. 245; 29 Ohio St. 467; 29 Ohio St 480 ; 67 Penn. St. 59.

      Note payable to bearer, payable to any one having possession. 2 Peters, 318 ; 2 Wall. 121.
    Whether a note to bearer, under seal, is negotiable by delivery, see Bank v. Wills, 5 Ohio, 222 ; Spencer v. Buchanan, Wright, 583; 4 Ohio St. 535 ; 10 Ohio St. 19.
    Sealing is an act of the maker, and must be done by him. S. & C. 458, 459 ; 5 Ohio St. 308, 319; 8 Ohio St. 509.
    A printed seal is no seal. 3 Inst. 169; 5 John. 244; 5 Pick. 497; 2 Pick. 11 ; 3 Washburne on Real Prop. (3 ed.) 246, 346 ; 1 Daniels Neg. Inst. § 32; 4 Munf. (Va.) 442; 2 Leigh, 196; 15 Graft. 108.
    G. T. Stewart, for defendant in error:
    The note was not a negotiable note. Swan’s Treatise (6-ed.), 540; Avery v. Lattimer, 14 Ohio, 542; 19 Ohio St. 536 ; 10 W. L. J. 410.
    As to what is a seal, see S. & C. 1385 ; Michenor v. Kinney, Wright, 459; Howe v. Dawson, Tappan, 169.
   Gilmore, C. J.

The action in the court of common pleas was brought by Osborn against Kistler, on an instrument of which the following is a copy:

“ Post-Oeeice, Clyde, State oe Ohio,

“ County oe Seneca, Adams Township, Aug. 13,1873.

“ Pour months after date (or before, if made out of the sale of J. C. Kurtz’s Broadcast Seed Sower), I promise tO' pay to J. C. Kurtz or bearer, for value received, one hundred and twelve dollars, negotiable at the First National Bank of Green Springs, with eight per cent, interest after due. And we hereby authorize and empower any attorney at law, at any time after this obligation becomes due, to appear for us before any court of record in the State of Ohio, or elsewhere, and waive the -issue of process, and confess judgment against us and in favor of the payee above-named, or assigns, for the sum due herein, with interest and cost, and thereupon to release all error and waive all right to the second trial or appeal in our behalf.

(Signed) Edward Kistler.” [seal.]

The instrument was obtained fraudulently, and without consideration, from Kistler, by one Gates, the former believing, at the time he executed and delivered it, that it was a contract, in duplicate, appointing him an agent for the ■sale of a patent right. Gates, for a valuable consideration, sold and delivered the instrument to Osborn, at Clyde, Ohio, on the 19th of August, 1873.

On the trial, in the court of common pleas, there was a judgment in favor of Kistler, which, on error, was affirmed in the district court. By this proceeding, the reversal of both judgments is sought.

On the trial, there was a finding of facts, which is made part of the record, from which it appears, “ that immediately behind the signature of the defendant, on said note, is a scrawl seal, impressed with ink on the paper at the time it was printed, it being a printed note with blank spaces; that this note was not indorsed by the payee thereof, nor by any one for him, nor by said Gates, nor any one for him.”

But two of the questions presented on the record will be considered:

Was the instrument sued upon sealed by Kistler before delivering it to Gates ?

Our statute on this subject is as follows: “ That in all cases where a seal is or may be required by law to be affixed to any instrument of writing, and the seal so required is not specific, a seal either of wax, wafer, or of ink, commonly called a scrawl seal, shall be alike valid, and deemed sufficient.” S. & C. 1385.

The instrument sued on is not one that is required by law to be sealed. But it has been long settled, in this state, that a note with a “ scrawl ” seal is a sealed note; and that our law puts the “ scrawl ” upon the same footing as the wax seal. Howe v. Dawson, Tappan, 169; Michenor v. Kinney, Wright, 459. These authorities further •decide that it is not necessary to describe, in a testatum clause, or otherwise, the note as being under seal. They have not been subsequently questioned in this state. In this case the form of the instrument, including a device, consisting of a bracket with the word seal therein, thus, [seal] ”’ was printed with ink, with blank spaces to be filled. After the spaces were filled, the maker signed his name immediately in front of the device above described.

At common law a seal is an impression upon wax or wafer, or some other tenacious substance capable of being impressed. But such a seal has never been in common use in this state. -In executing deeds, mortgages, and other instruments of writing, which are required by law to be sealed, scriveners almost universally use blank forms, with spaces in which the “ scrawl” seal is printed in the manner-above described. To-hold that parties executing such instruments do not adopt such printed devices as their seals,, by signing their names in front of them, would lead to disastrous consequences.

We hold that the device above mentioned is a “ scrawl”' seal, and under our statute has the effect of a common law seal; and that, by affixing his signature in front thereof,, the maker adopted the device as his seal.

Second. Is a sealed note or bill payable to the payee or hearer negotiable by mere delivery ?

At common law a note under seal is not negotiable either by delivery, or indorsement, so as to enable the holder to maintain an action in his own name upon it. Chitt-y on-Bills, *166. If a seal be affixed to a paper .in the ordinary form of a note, its character as such is destroyed; and it is-thereby converted into the deed or bond of the maker, who is then termed the obligor, and the -instrument is not subject to the peculiar doctrines • applicable to mercantile securities. Daniels on Negotiable Instruments, § 32. The-law merchant is confined to “ open,” which means unsealed bills and promissory notes. Ib. § 31. Sealed notes are-not, therefore, within the law merchant. Hence it is clear that the plaintiff in this case can not maintain an action in his own name on the note sued on, under the rules of either the common law or law merchant.

If the note was not sealed, he could maintain an action, on it in his own name. Byington v. Geddings, 2 Ohio, 228.

The note sued being under seal, and payable to bearer,, it -follows that if the plaintiff is entitled to hold the note-in question free from defenses of the obligor or maker, it must be by virtue of the provisions of our statute, which reads as follows:

“ That all bonds, promissory notes, bills of exchange foreign and inland, drawn for any sum of money certain, and made payable to any person or order, or to any person or bearer, or to any person or assigns, shall be negotiable by indorsement thereon, so as absolutely to transfer and vest the property thereof in each and every indorsee successively.” S. & C. 8G2.

It has been held that under this statute, sealed notes payable to order or bearer are assimilated to commercial paper, and that such paper can be negotiated so as absolutely to transfer and vest the property therein in the indorsee, by complying with the statute which requires the transfer or assignment to be made “ by indorsement thereon.”’ Bank of St. Clairsville v. Smith, 5 Ohio, 222; Cushman v. Welch, 19 Ohio St. 222.

In Avery v. Latimer, 14, Ohio, 542, the syllabus is as follows : “ A promissory note, payable to a person or bearer, is negotiable by delivery.” “A sealed bill or note, in the same form, is only negotiable by indorsement.”

And in the opinion by Judge Hitchcock, it is shown that the fact that the note was transferred by delivery for a valuable consideration does not dispense with the necessity of indorsement, as required by the statute. "We approve the law as thus laid down. The mere delivery of the sealed note upon which this suit is brought, did not vest the legal title to the note in the plaintiff, and in the action brought thereon by him, the defendant had a right to set up any valid defense that he had against the note.

The judgment of the district court is affirmed.


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    Simmons et al. v. Green.
    1. In an action to recover damages for the breach of a contract, averments in the answer setting up a different contract are immaterial, except as they operate to deny the making of the one sued on. Such averments do not constitute new matter, and require no reply.
    2. In order that the buyer may recover damages for the non-delivery of goods, it is incumbent on him to prove that he was ready and willing to receive and pay for them as delivered; and he is not relieved of this duty by the fact that the making of the contract sued on is denied.
    Error to the District Court of Hamilton county.
    Omitting the formal parts, the original petition in the case is as follows :
    “ Plaintiff says that on or about the 10th day of September, a. d. 1873, the defendants were the owners of and in possession of a certain crop of grapes — to wit, at Clermont county, Ohio, on the premises of defendants — then in readiness to be harvested and for market.
    “Plaintiff says that the defendants then and there, in consideration of the promises of the plaintiff hereinafter made, sold, and agreed to gather and deliver to plaintiff at the wharf-boat at New Richmond, Ohio, without delay, all of said crop of grapes in good order, estimated to contain ■three hundred bushels of grapes, at the agreed price and value of $5.50 per stand, each stand to contain two bushels, and plaintiff says that there was of said grapes the quantity alleged. '
    “ Plaintiff further says that by the terms of said agreement he was to pay for said grapes as they were so delivered to him, and that under said agreement, defendants did commence to gather and deliver said grapes to this .plaintiff^ and that he paid for the same as he agreed to do, and that defendants continued to so deliver said grapes until he delivered about twelve stands thereof, and received from this plaintiff his pay therefor, but that defendants then and thereafter failed and refused to deliver the remainder of said crop of grapes, although the plaintiff was ready to receive the same and to pay therefor as he had agreed to do, and that, on the contrary, defendants gathered and sold the same to another, to the damage of this plaintiff,” etc.
    The following is the answer, in substance:
    “ The said defendants answer the petition of said plaintiffs, and admit that on or about the 10th day of September, A. D. 1873, at Clermont' county, Ohio, said defendants were the owners and in possession of a crop of grapes on their land in readiness to be harvested and for market; but said defendants deny that they then, or at any other time, sold or agreed to gather and deliver to plaintiff, at the wharf-boat at New Richmond, Ohio, or at any other place, without delay, or at any time, all of said crop of grapes.
    “ The said defendants say that about the time aforesaid they did sell and deliver to said plaintiff at said wharf-boat twelve stands of grapes from said crop, at the price of $5.50 per stand, each stand containing two bushels, and said plaintiff then paid said defendants said price therefor, but said defendants deny that said twelve stands of grapes were delivered under a contract for the sale and deliveiy of all of said crop of grapes by said defendants to said plaintiff, and deny that any such contract was ever made betwoen said defendants and said plaintiff.
    “The said defendants admit that they did not deliver any of said crop of grapes to said plaintiff, except said twelve stands, and that they sold the remaining part to another, and deny each and every other allegation in said petition not herein admitted.”

    On the trial of the case to a jury, the court, being of opinion that the answer set up new matter, which could not be controverted unless traversed by a reply, granted leave to the filing of the following reply :
    “ By leave of court given, the said plaintiff now comes, and for his reply to the answer of defendants herein, denies that the twelve stands of grapes therein mentioned as "being sold and delivered to plaintiff at $5.50 per stand, were sold and delivered upon any other agreement or contract than that set out by plaintiff in his petition herein for the Avhole crop of defendants’ grapes, and avers that the same were delivered and paid for as a part of said crop, and on account of the contract in said petition stated, and not otherwise.”
    The evidence and arguments being closed, on the submission of the case to the jury, the court, among other things, instructed them as follows :
    “ That if defendants had made defense, or had offered evidence to show, that plaintiff was unable to pay for the grapes in question as they were delivered, such a defense, or such proof, would excuse a delivery of the grapes, and the plaintiff could not recover; but no such defense or claim, is made, or proffered, on the part of the defendants.”
    This charge was excepted to. A; verdict was returned for the plaintiff', on which judgment was rendered. On error, the district court affirmed the judgment; and this proceeding is instituted to reverse the judgments thus rendered. '

      John Johnston, and A. J. Jessop, for plaintiff’ in error :
    The vendee must, in order to recover damages for the nondelivery of goods, .show that he was ready and willing to pay for them. Mowry v. Kirk, 19 Ohio St. 383; Benjamin, on Sales, § 677; 1 Parsons on Con. 537; Grundy v. MeCleese, 2 Jones (N. C. L.), 142.
    P. J. Donham, for defendant in error.
   White, J.

The only question arising in the case that we deem it necessary to -notice, is that relating to the readiness of the plaintiff to receive and pay for the grapes.

The court fell into error in regarding the answer as setting up new matter by way of defense. No reply was necessary, and the filing of the reply did- not affect the legal issues, arising on the petition and answer.

The answer denied the making of the agreement upon which the petition was founded; and the averments in the answer, setting up a different agreement, were immaterial. There was no controversy as to the delivery of the twelve stands of grapes; the dispute was whether an agreement had heen entered into between the parties, as alleged in the petition, for the sale and delivery of the entire crop. If the plaintiff failed to establish such agreement, he could not recover.

The petition averred that the plaintiff was ready to receive the entire crop, and to pay for them according to the terms of the agreement. This averment was put in issue by the answer; and the effect of the charge was to withdraw the issue thus fprmed from the jury.

The issue was material. In order that the buyer may recover damages for the non-delivery of goods, it is incumbent on him to prove that he was ready to receive and pay for them as delivered. Metz v. Albrecht, 52 Ill. 491; Benjamin on Sales, § 677.

Nor is the buyer relieved of this duty by the fact that the making of the agreement sued on is denied. Graudy v. McCleese, 2 Jones (N. C. L.) 142; Graudy v. Small, 3 Id. 8; Mowry v. Kirk, 19 Ohio St. 383.

Judgment reversed, and cause remanded for a new trial.


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    Rosebrough v. Ansley et al.
    1. A judgment for a sum greater than the amount due upon the cause of action as stated in the record is erroneous; and the previous consent of the parties that such judgment might be rendered does not cure the error.
    2. Sections 3Tl and 378 of the code of 1853, authorizing a judgment without pleadings, apply only to a proceeding wherein the debtor appears personally in court and confesses judgment.
    3. Where money is loaned at the highest rate of interest allowed by law, a contract to pay a sum in addition to'such rate in consideration of an extension of the time of payment is usurious.

      Error to the District Court of Logan county.
    The petition in the original action, filed April 23, 1873, was as follows:
    “ The plaintiff says:
    “ 1. On or about the 8th day of November, a. d. 1870, he was duly appointed and qualified as executor of the estate of Mary G-affield, theretofore .deceased, by the Probate Court of Logan county, Ohio, and is now such executor.
    “ 2. In the lifetime of the said Mary Gaffield, and on the 1st day of July, a. d. 1870, said defendants, William Ansley and J. S. Ansley, made their promissory note in writing, of that date, and then and there delivered the same to the said Mary Gaffield, and thereby promised to pay to the said Mary Gaffield or order the sum of thirty-seven hundred and thirty-three dollars in twelve months after the date thereof, with ten per cent, interest from, date, until paid, for value received.
    “3. There are no credits thereon, except only the following :
    “ ‘ December 16, 1871, five hundred dollars.
    “ ‘ March 19, 1872, three hundred dollars.’
    “ 4. There is now due the plaintiff, as said executor, from said defendants, on said note, the sum of thirty-three hundred and fifteen dollars ($3,315), with interest thereon from the 19th day of March, a. d. 1872, for which sum he asks judgment against said defendants.
    “ McLaughlins & Dow,

      ‘■‘■Plaintiff’s Attorneys.”

    On this petition a summons was issued and served on defendants.
    Afterward, on the 24th day of May, 1873, a paper in the handwriting of plaintiff’s attorney, was filed in said case, of which the following is a copy:

      “Agreement. — Defendants and plaintiff agree herein as follows, to wit:

      “ Defendants agree to confess judgment to be entered on the 3d day of June, 1873, in the sum of $4,227.26, to bear interest until paid, at the rate of eight per centum per annum.
    “ And the plaintiff agrees to forbear and consent to stay of execution on the whole of said judgment for six months; on three-fourths thereof Tor one year; on one-half thereof for eighteen months, and on one-fourth thereof for two years. Provided no default be made in either of said payments at expiration of stay.
    “ Witness the hands and seals of the parties this 24th day of May, a. d. 1878.
    “ Henry Rosebrough, JEx’r,

    “ By McLaughlins & Dow, Ms Attorneys, [l. s.]
    “Wm. Ansley, [l. s.]
    “ J. S. Ansley, [l. s.]”
    Afterward, on the 31st day of May, 1873, a paper in the handwriting of plaintiffs attorneys, was filed in the said case, of which the following is a copy:

      “Answer. — And now comes the defendants, William Ansley and J. S. Ansley, and waiving their right of rule day for pleading, file this their answer and admit their indebtedness on said note to the plaintiff in the sum of $4,227.26, and they hereby confess judgment herein for said amount, and ask the court to render judgment herein against them in said sum of four thousand two hundred and twenty-seven dollars and twenty-six cents, and they also ask the court, in accordance with the agreement of forbearance herein filed, to order stay of execution upon the whole of said judgment for six months; on three-fourths thereof for one year; upon one-half thereof for eighteen months; and upon one-fourth thereof for two years. The whole bearing interest until paid, at the rate of eight per centum per annum. Such stays on condition that no default be made in payments. “Wm. Ansley, [l. s.]
    “ J. S. Ansley, [l. s.]”
    Afterward, on the 3d day of June, 1873, which was the first day of the term of the common pleas court, the following journal entry was made in said case, without any other or further pleadings, or cause of action, than as above stated:
    “ This cause being before- the court upon the petition of the plaintiff, an agreement in writing signed by the parties and filed herein, and upon the answers of the said defendants acknowledging indebtedness to plaintiff, and asking the court to render judgment against them and in favor of the plaintiff, and the court being fully advised in the premises, finds there is now due from the defendants to the plaintiff upon said note and agreement, the sum of $4,227.26. "Wherefore, it is considered by the court that the plaintiff recover of the said defendants, William Ansley and J. S. Ansley, said sum of four thousand two hundred and twenty-seven dollars and twenty-six cents, together with his costs herein expended, taxed at $-.
    And it is ordered according to said agreement that execution be stayed on the whole of said judgment for six months ; on three-fourths thereof for one year; on one-half thereof for eighteen months, and on one-fourth thereof for two years, and that said judgment bear interest at the rate of eight per cent, per annum.
    “ And it is further ordered that stays of execution shall be on condition that no default be made in the payments of any one of said installments.”
    On error prosecuted by the defendants below, this judgment w'as reversed by the district court, and this proceeding is now prosecuted to reverse the judgment of reversal.

      McLaughlins & Dow, for plaintiff in error:
    The defendants in error are estopped from denying the validity of the judgment by their consent to the judgment in the amount for which it was taken. Salmond v. Price, 13 Ohio, 368; Wilcox v. May, 19 Ohio, 410; Haighway v. Pendleton, 15 Ohio, 753; Elliott v. Elmore, 16 Ohio, 29. A judgment rendered by consent of parties can not be reversed on error. Wills v. Martin, 1 Ohio St. 386; Jackson v. Jackson, 16 Ohio St. 163.

      West, Walker & Kennedy, for defendant in error:
    To authorize a judgment by confession the defendant must be shown to have “personally appeared” in open court. Section '377 of the code of 1853. A debt or cause of action must be shown to have existed against him. Section 378 of the code.
    The record of this cause in the common pleas court does not contain a single requisite of a judgment by confession.
    The judgment was erroneous, for that it included usurious interest. •
   McIlvaine, J.

The principal objection urged against the judgment of reversal rendered by the district court is that the judgment of the court of common pleas was rendered by consent of the parties. We are aware of the general rule that a reviewing court will not reverse a judgment at the instance of a party who consented thereto, but think the record before us discloses a state of facts which form a proper exception to the rule. Whether the parties to a judgment consent or dissent, the judgment must nevertheless be regarded as the act and decision of the court, and, if the court be without authority in the premises, its judgment can not be sustained on the ground that consensus tollit errorem.

No one would contend that a judgment would be sustained on the ground of consent if the record showed that no cause of action existed against the party consenting; and we think it is equally fatal to a judgment under our practice, if no statement of the cause of action appear on the record. In ordinary practice the cause of action must be stated in the pleadings, and the judgment must be confined to the cause of action so stated. An exception to this practice is found in sections 377 and 378 of the civil code of 1853. These sections read as follows:

“ Sec. 377. Any person indebted, or against whom a cause of action exists, may personally appear, in a court of competent jurisdiction, and, with the assent of the creditor, or person having such cause of action, confess judgment therefor; whereupon judgment shall be entered accordingly.
Sec. 878. The debt or cause of action shall be briefly stated in the judgment, or in a writing to be filed as pleadings in other actions.”

It will be observed that, in a proceeding under these sections, the cause of action must be stated on the record, either in the judgment or in a writing filed as pleadings. Rut we can not look to the judgment, or the paper filed as pleadings, for a statement of the cause of action, in the case now before us, for the reason that the proceeding does not come within the provisions of these sections, inasmuch as the record does not show that the parties consenting to the judgment personally appeared in open court. Their appearance in the action was effected by service of summons, and their consent to the judgment, as well by the alleged answer as by the written agreement, was previously given and filed in vacation.

IVe must therefore look to the pleadings for the statement of the cause of action, and the only cause of action therein stated is found in the petition, and is a balance of $3,315, with interest from March 19, 1872, claimed to be due upon a certain promissory note. The court of common pleas had no power or authority to render judgment upon any other or different cause of action. The judgment rendered being for $4,227.26, was largely in excess of the debt stated in the petition, and, to the extent of such excess, was erroneous and without authority. The consent of the parties to such excessive judgment was as ineffectual to confer authority upon the court to render it, as if there had been no cause of action stated in the pleadings. Notwithstanding the written consent on file, it was the duty of the court to look into its record and ascertain whether the cause was one in which a judgment could be properly Tendered, and to limit its judgment to and by the cause of action therein stated.

It is also contended that the excess in the amount of the judgment, over the amount due on the note, was allowed in consideration of the plaintiff’s agreement to forbear execution ; and the defendants, having enjoyed the benefits of that agreement, should be estopped from denying its validity. In answer to this contention, it is enough to say that any agreement, by a debtor, to pay his creditor more than the legal rate of interest, for the use of the money and forbearance to collect, is usurious and void, and it is against the policy of the law to estop a party from showing usury in his unexecuted contracts.

Judgment affirmed.