text:
    Ferdinand Suydam et al. v. The Columbus Insurance Company et al.
    Where a bill in chancery is filed against an insurance company to compel it to issue a policy of insurance upon a contract previously made, such bill cannot be sustained unless there is conclusive proof that such contract was actually made. If the matter is left in doubt upon the whole evidence, the bill must be dismissed.
    This is a bill in chancery, reserved in Muskingum county,
    The case is sufficiently stated in the opinion of the court.

      Goddard Oonvers, for complainants.

      Swayne Bates, for defendants.
   Hitchcock, C. J.

Various points have been raised and ably argued in this case, but in the view which this court takes ■of the facts, we are relieved from the necessity of examining at any considerable length, the questions of law raised.

It is alleged in the bill that in October, 1845, Allen Cadwallader being indebted to the complainant in the sum of thirteen thousand five hundred dollars, as evidenced by bond, did, in writing, for the purpose of securing the payment of said bond, assign over to Ferdinand Suydam for the use of complainants, five undivided eighth parts of the steamboat Belle Zane,” ■conditioned that if said Cadwallader should, on request, pay the said sum of $13,500, then the assignment to be void.

It is further alleged, that on the 3d day of January, 1846, the said Cadwallader, by his agent, applied at the office of the defendant, the Columbus Insurance Company, at their office in 'Zanesville, Muskingum county, to effect an insurance of four thousand dollars on the said steamboat “ Belle Zane,” then on the Mississippi river bound for New Orleans, in the usual man» ner in which boats are insured by that company; the insurance to take effect from the 14th day of the preceding month of He» cember, and to continue for one month. That said application for said policy was so far effected that the said Cadwallader, by his agent, on or about the said 3d day of January, 1846, made an entry of such application upon the books of the company, kept for that purpose, and had paid the premium, by agreeing to give a note for the same, and which the company agreed to accept as payment; and further, said company agreed that the said policy for the sum and period aforesaid, should be issued, and the same be considered for all intents and purposes, to have issued at the date aforesaid, and that the said assured had done all acts required to effect said policy of that date. It ia then stated that said Cadwallader, by his agent, knew nothing of the loss of said boat, nor did the complainants know any thing of its loss until some time after the application and agree ment aforesaid had been made.

It is further stated, that on or about the 25th day of December, 1845, the said steamboat was wrecked and lost upon the Mississippi river, and that the said Cadwallader thereby became and was entitled to have and demand of the company the said sum of four thousand dollars. That on or about the 28th day of March, 1846, the said Cadwallader, by his agent, assigned to the said Ferdinand Suydam, for the use of complainants, all right of action which said Cadwallader had against said insurance company by reason of said risk, etc.

The bill then sets forth the names of the respective owners-of the boat, with the number of shares belonging to each.

. The prayer of the bill is that the defendant may be compelled to issue the policy according to the aforesaid agreement, or that said company may be required to pay the loss, or such-amount thereof as may be found due, and for general relief.

It is unnecessary to state at length the answer of the insurance company. It denies explicitly that any contract was made as stated in the bill. It is admitted that one Perry Smith, as agent for Cadwallader & Co., made an application in writing to Charles Gr. Wilson as agent of the company, on the 3d day of January, 1846, for a policy of insurance on said boat in the-sum of four thousand dollars, but it is denied that the agent ever agreed to take the risk, or issue the policy. On the contrary it is averred that the facts are, that Wilson the agent agreed that if he took the risk, he would take it at two per cent, on the amount to be insured, and that in that event, he would receive a note at thirty days for the premium; but that at the same time he informed Smith that before he could act. in the matter, or consent to take the risk, he must see a letter recently received in Zanesville from a person on board said boat, and that he must see the person to whom the letter in question-was addressed.

While the negotiation was pending, and before the agent had seen the letter or person referred-to, before he had agreed te lake the risk or issue the policy, before the premium note was received or tendered, it became generally known that the boat was lost, and this put an end to the negotiation.

The first question to be ascertained under this state of the ■case, is, whether here was a contract between the parties which can be enforced in-a court of equity. If there was, then other questions raised by counsel must be considered; if there was not such a contract, there is an end of the case. I suppose, in .a contract of insurance as well as in other contracts, there must be an agreement between the parties; and the same evidence will be required to prove the existence of such a contract, as of .any other. It must be such evidence as satisfies the mind, that the parties not only intended to contract, but that they did in fact contract.

The evidence in the present case is not very multifarious. It is contained in two depositions, of individuals testifying to the contract, and of another individual, who is called upon to state the admissions of one of the aforesaid witnesses, when the two were conversing together upon this subject.

The two witnesses who speak directly as to this contract, or pretended contract, are Smith, the agent of Cadwallader, and Wilson, the agent of the insurance company. Neither of them., so far as we know, have any interest in this controversy, but their relation to the parties is such that, by possibility, their feelings may be somew'hat interested. In this respect, however, they stand in the same relation.

Smith states that upon the 3d of January, 1846, he called upon Wilson, the agent of the company, and informed him that he wished to effect an insurance on the steamboat “ Belle Zane,” for one month, from the 14th day of the preceding De •cember, that being the day of the- date of a letter from Charles Bowen, at Smithland, Kentucky, to Charles Bowen & Co., Zanesville, containing information that the boat had arrived at that place, and w'ould leave in a few moments for New Orleans. He -says he inquired of Wilson what the company would charge to insure as aforesaid, for one month, and whether the company would take the note of A. Cadwallader & Co. for the premium, in thirty days. Wilson replied that he would, and that he would charge two per cent.; but that he wished to see James Caldwell, the clerk of Bowen & Co., and the letter above referred to. Witness says he told Wilson that the rate of insurance was greater than he had expected, but that if he concluded to take the insurance, he would call again in an hour. He then went to the office of Cadwallader & Co.; ■concluded to take the insurance; returned to the office of Bowen & Co.; saw the letter from Charles Bowen; took a memorandum of the date and place from whence it was written, and then went to the office of Wilson; showed him the memorandum, and made an application for insurance on the boat for one month from the 14th day of December, for the sum of $4,000; sat down and wrote the application in the book, and asked Wilson if it was written right, and he said it was.

Witness further states, in a subsequent part of his deposition, that he had an interview with Wilson on the 5 th of January, 1846, at which time William Galligher was present. He says that, at that time, he tendered Wilson a note for the premium, and one dollar for the policy; that the note was such as had been agreed upon; that he at the same time demanded the policy, but Wilson refused to accept the note, and one dollar tendered, and also refused to sign the policy. He says that this was all that took place at that time, so far as he can recollect. In answer to a question put to him as to what Wilson said when he made the .written application, and before he left she office, he replied : “I think he said that I could get a pol icy at my leisure.”

A paper is then presented to the witness marked B, and which is attached to the deposition, and he is inquired of whether it is in his handwriting, and he replies that it is. Thinks that it was written in the spring or summer of 1846. Says that he showed it to Wilson, and that Wilson did not disagree with him as to its contents; and he afterwards gave it to Mr. Goddard.

On his cross-examination, the witness says he does not recollect, that in the interview with Wilson on the 5th of January, what, if any, reasons Wilson assigned for not issuing the policy. . Upon being ■ further interrogated, he says Wilson said something about Bowen’s letter, but what it was he does not recollect.

In answer to án interrogatory of defendant’s counsel, as to the reason why he made the additional statement, that he u thinks that Wilson told him he could call and get the policy at his leisure,” he replies, “ because I believe it was correct; I was reminded of this remark of Mr. Wilson by Mr. Convers, one of the plaintiff’s attorneys, who directed my attention to the memorandum — things contained in paper marked B.”

This memorandum, marked B, is a statement of facts with respect to the insurance, made, as I suppose, for the use of the attorney for plaintiff, possibly for the purpose of aiding him in stating the case in the bill. It is not like a memorandum made jy a witness, at the time of a transaction, for the purpose of efreshing his memory at a subsequent period. This memorandum was made months after the transaction and conversation therein referred to. The substance of the memorandum does not vary materially from the testimony of the witness, except in two particulars. In the memorandum, the witness states, towards the close, I called in about an hour, and stated I would get her insured for four thousand dollars, and that I had been to C. Bowen & Co.’s store, and had the heading of the letter, dated Dec. 14th, 1845, which I showed him; he then stated to me to make an application in his hook, which 1 did, and then I asked him if all was right; he said it was, and 1 could, get a policy at my leisure.”

This statement certainly places the case in a different point of view from the testimony. In his deposition, the witness says nothing of any statement or request from Wilson, that he should make the application in the book. He says he told Wilson that he had concluded to insure, and then set down and wrote the application in the book. In his deposition he does not say that after the application was written, he asked Wilson if all was right. But merely that he inquired of Wilson, whether the application was written right, and that Wilson replied that it was. In the body of his deposition, the witness says nothing about any statement of Wilson that he might call at his leisure and get the policy.” True, in a subsequent part of the deposition, the witness says he “ thinks ” Wilson told him so, and subsequently he states why he thinks so. It is not because he recollects the fact, but because his attention was called to it by-one of the counsel for complainants, and because it is so stated in the memorandum. It is evidently from the memorandum that the witness makes this statement, not from any recollection of the existence of the fact. So far as this statement in the deposition is concerned, it must be rejected.

Taking the deposition of Smith alone, the court might come to the conclusion that here was a contract, but it would be at least somewhat doubtful. There was no payment of any premium, nor any offer of a note for the premium until after the loss became known. Nor is there any thing in the testimony to show, that any time was given to execute the premium note. It is apparent, too, that from the beginning of the negotiation, Wilson was anxious to see the letter from Bowen, and feeling this anxiety, it is not probable that he would agree to take the risk, until he had seen that letter.

The next deposition relative to the contract, is that of Will iam Galligher. He heard nothing relative to the contract at the time it is claimed to have been made. He was present on Monday, the 5th of January, when Smith tendered the premium note and demanded the policy. He says that after the tender was made, there was a conversation between Smith and Wilson, in regard to the insurance on the “ Belle Zane; ” that Wilson admitted that all the preliminaries had been agreed’ upon, viz, the amount to be insured, as also the time, and the ■manner'of payment.”. “Reference at the time was made to a letter, which was said to be in the possession of Charles Bowen & Co., which he, Wilson, preferred to see before issuing the policy. He, Wilson, stated that he considered the Belle Zane •as insured, provided there was nothing different in the letter from the representation that Smith made concerning the boat, if there had been any material fact withheld from Wilson’s knowledge at the time the representation was made as to her safety, he would consider the insurance as open for further consideration — this is about the substance of the admission made by Wilson.”

On his cross-examination the witness says all the foregoing “ has reference to the Saturday previous. I do not wish to be understood that Mr. Wilson would have issued the policy on Monday had all the facts represented in the letter referred to, been as Mr. Smith represented, on the contrary he refused to issue it on the ground he had not seen the letter. The news of the loss of the Belle Zane had been received in the meantime.”

The witness further says, that in this conversation Wilson stated, “ that at the time the application was made for insurance, he informed Perry Smith that he would see the letter referred to, in the possession of Bowen & Co., before issuing ■the policy,” and Wilson further stated, “ that he intended to see the letter before he went to dinner, as it was then about dinner time; and on his return from dinner, he heard of the loss of the Belle Zane.

From this deposition we learn what transpired on the 5th day of January, when the premium note was tendered, and the reason assigned by Wilson for not issuing the policy — all of which is forgotten by the witness Smith. But whether the testimony of this witness goes more to sustain the testimony of Smith than it does the testimony of Wilson, which will next be referred to, is, perhaps, matter of doubt.

The testimony of the agent, Wilson, has been taken by the •defendants, and in his deposition he says, that, on Saturday preceding the 5th of January, Smith called at his office in. Zanesville, being the office kept, for the Columbus Insurance Company, at about 11 o’clock in the forenoon, while the deponent was very much engaged in writing a letter. Smith inquired if deponent would effect an insurance on the Belle Zane Deponent inquired where she had been heard from last; and Smith replied, that a letter had been received the day before, by Caldwell, a clerk of Charles Bowen & Co.; that the letter came from Smithland, stating that the boat was at Smithland, Kentucky, on the 14th December, 1845 ; that the boat left next morning, proceeding on her voyage. Deponent informed Smith that he would insure the boat, but that, before he did so, he must see the letter to Mr. Caldwell, and also see Mr. Caldwell himself, and have a conversation with him. Smith inquired the rate, and was informed what it would be. He inquired if the note of A. Cadwallader & Co. would be taken for the premium, and deponent told him he had no objection. Smith • went out of the office, but before deponent had done writing the letter, returned, and told deponent that they wished $4,000 insured on the Belle Zane, to which deponent replied, “ very well.” Before going out of the office, he asked for my application book, which was handed to him, and he made an application in writing, and immediately went out of the office, without giving a note or saying anything about a note for the premium. On the same day, and before having seen the letter referred to, deponent was informed of the loss of the boat. At the time of the written application, deponent did not intend to take the risk, without seeing Mr. Caldwell and the letter, and would not, under any circumstances, have done so. As Smith did not offer the premium note at the time, deponent supposed he so understood the matter. What was then said had reference to the previous conversation, and deponent supposed Smith so understood it. The invariable practice of deponent was, when an application was accepted, to make an entry on the book, of the date, premium and ■ amount. It was not done in this case, because deponent did not consider the matter closed. Deponent considered the matter open for acceptance or rejection, after seeing Mr. Caldwell and the letter.

In a subsequent deposition, Wilson denies that he agreed tc the correctness of the paper marked “B,” and says he told Smith that it was not true that he told him he could “ call and get a policy at his leisure,” and that nothing of that kind was said to him. In this last deposition Wilson further says: “ I do not remember that, at the time the paper was shown to me, anything was said with regard to the conditions, with reference to my seeing the letter to C. Bowen & Co., as preliminary to my issuing tbe policy.”

Now, according to the statement of this witness, there certainly was no contract which can be enforced against the defendants. If there was any contract, he was the agent by whom it was made. He states explicitly that he refused to make any contract, until he should have seen the letter to Bowen & Co.; that he so informed Smith. Smith himself states that Wilson said he must see that letter, but he does not speak of this as having been a necessary condition previous to taking this risk. On the Monday following, in the conversation in the presence of Galligher, this same letter was referred to, and the reason assigned by Wilson for not issuing the policy was, that he had not seen the letter. If Wilson can be credited, it was certainly never his intention to take the risk, until he had seen the letter. Probably Smith might have understood the business differently. But before a contract can be enforced, the minds of the parties must have met upon it. There must be an agreement.

Now this is all the evidence which we have directly upon this point. To say the least, it is left doubtful whether there was, in fact, a contract. In truth, looking to the whole testimony, we do not believe there was a, contract, Such being the opinion of the court upon this question, it is unnecessary ta look further into the case.

The lili is dismissed.


source: Caselaw Access Project

author: Avert, J.

license: Public Domain

text:
    John Sutcliffe v. The State.
    An indictment for manslaughter, drawn after the approved common law precedents, is good in a prosecution under the statute of Ohio for the same offense.
    A statement that the prisoner made an assault and unlawfully discharged a gun, loaded with powder and lead, at the person killed, is a sufficient averment of -the unlawful act designated in the statute.
    After a verdict of guilty, and judgment reversed on account of error in the proceedings, the prisoner is not protected from a second trial before a jury, by the provision in the bill of rights, that “ the accused shall not be twice put in jeopardy for the same offense."
    The original papers and transcripts from the journal entries, both of the supreme court and common pleas, are admissible in evidence as the record, when they have not been carried into the record book.
    The plea of not guilty upon the record, is not reached by the judgment of reversal.
    Though the plea remain upon the record, it is not error to inquire by a jury, whether the prisoner stands mute obstinately, and to cause the plea of not guilty to be entered without his consent.
    It is not error to omit giving notice to the prisoner’s counsel, that he may be present when the verdict is to be delivered by the jury.
    This is a writ of error to the Court of Common Pleas of Jefferson county.
    The plaintiff in error was indicted at the May term, 1849, for killing John Johnson. The indictment contained three counts; the first two charging murder in the second degree — ■ the third, manslaughter, as follows:
    ***** “ That John Sutcliffe, late of said county, on the tenth day of March, in the year of our Lord one thousand eight hundred and forty-nine, at the county of Jefferson aforesaid, in and upon the body of one John Johnson, then and there being, unlawfully did make an assault; and that the said John Sutcliffe, a certain gun then and there charged with gunpowder and fourteen leaden shot, which said gun he, the said John Sutcliffe, in both his hands then and there had and held, then and there unlawfully did discharge and shoot off to, against, and upon, the said John Johnson; and that the said John Sutcliffe, with fourteen leaden shot aforesaid, out of the gun afore said, then and there by force of the gunpowder aforesaid, by the said John Sutcliffe discharged and shot off, as aforesaid, then and there unlawfully did strike, penetrate, and wound the said John Johnson, in and upon the left thigh of him, the said John Johnson, giving to him, the said John Johnson, then and there, with the. fourteen leaden shot aforesaid, so as aforesaid discharged and shot out of the gun aforesaid, by the said John Sutcliffe, in and upon the left thigh of him, the said John Johnson, one mortal wound, of the depth of six inches and of the breadth of two inches, of which said mortal wound the said John Johnson,- on and from the said tenth day of March, in the year aforesaid, until the eleventh day of March, in the year aforesaid, at the county aforesaid, did languish, and languishing did live — on which said eleventh day of March, in the year aforesaid, about the hour of one o’clock in the night, he, the said John Johnson, at the county aforesaid, of the mortal wound aforesaid, died.
    “ And so the jurors aforesaid, upon their respective oaths and affirmations aforesaid, do say that the said John Sutcliffe, him, the said John Johnson, in the manner and by the means last aforesaid, unlawfully did kill and slay, contrary to the form- of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    At the same May term, Sutcliffe was arraigned and plead not guilty. A trial was had, and verdict rendered, that “ defendant was guilty of manslaughter”

    Exceptions having been taken to the charge of the court, a writ of error was prosecuted, and at the October term, 1849, of the supreme court, the judgment of the common pleas was reversed, “ and the cause remanded for further proceed ings.*’
    At the November term, 1849, of the common pleas of Jefferson county, the prisoner moved for his discharge, on the ground that he had been once convicted of manslaughter, and could not again be put in jeopardy for the same offense. The prosecutor having entered a nolle prosequi as to the first and second counts of the indictment, the court overruled the motion “ as to the remaining and last count of said indictment.” This ruling is assigned as error.
    The defendant thereupon pleaded * * * * “ that at the May term of said court, in the year 1849, being called do' plead to said indictment, the defendant did plead that he was not guilty in manner and form as charged in said indictment; and of this he put himself upon the country, and the prosecutor did the like ; and a jury of the country being impanneled, sworn and affirmed to try said issue joined as aforesaid on said indictment, upon their oaths and affirmations did say, that the said defendant was guilty of manslaughter: which aforesaid verdict remains of record in said court, in full force, not the least reversed or made void. And he the said John Sutcliffe, in fact saith, that he the said John Sutcliffe, and the said John Sutcliffe so indicted and convicted as last aforesaid, are one and the same person, and not other or different, and that the offense for which he was so indicted, put in jeopardy, tried and convicted, and the offense and indictment on which he is now indicted and put in jeopardy, are one and the same offense, and not other and different; and this he is ready to verify.”
    The replication to this plea alleges that at the May term, 1849, of the common pleas of Jefferson county, judgmen-1 was rendered against Sutcliffe upon the verdict of guilty of manslaughter, specified in the plea, and that he was sentenced, etc. And that at the same term the prisoner tendered his exceptions, which were made part of the record — that a writ of error was allowed — errors assigned on the record — that the state joined in error, and at the October term, 1849, the errors assigned were heard, and the verdict mentioned in the plea and the judgment rendered thereon, and all the proceedings at the trial of the said Sutcliffe, at the May term, 1849, of the common pleas, were, by the judgment of the supreme court, reversed, and the cause remanded for further proceedings, “ as by the record and proceedings thereof still remaining in the supreme court more fully and at large appears, which said judgment of reversal still remains in full force and ■effect, and not in the least reversed or made void; and this the plaintiff is ready to verify by the records of said court.”
    The defendant rejoined, that “ the said verdict in the plea and replication alleged, was not by the said' supreme court of the State of Ohio, as in said replication alleged, reversed; and •of this he puts himself upon the country.”
    A jury was thereupon impanneled to try the issue so joined, .and the state offered in evidence, as the record of the supreme court, the papers set out in the bill of exceptions, as follows:
    1. The transcript of the record of the case in the common pleas, with the assignment of errors thereon, and an allocatur indorsed by Judge Spalding.
    2. The original writ of error.
    3. The citation.
    4. The joinder in error.
    5. A certified transcript of the docket and journal entries ■of the common pleas.
    6. The original bill of exceptions taken on the first trial in the common pleas.
    7. The cost bill in the common pleas.
    8. The journal of the supreme court containing the entry •of the reversal of the judgment of the common pleas in the •case.
    9. The docket of the supreme court, containing the entry •of said case in error.
    10. The common pleas journal, containing the entry of the sentence in this case at May term, 1849, and the order to •suspend its execution.
    No other evidence was offered. The defendant objected to the admission of the papers in evidence, but the objection was overruled, and the defendant excepted.
    No other evidence having been offered, the defendant asked the court to instruct the jury that the papers and entries aforesaid -did not constitute the record -in the supreme court in said cause. This the court refused to charge, but did charge the jury that the papers aforesaid were the record in said cause.
    The court further charged the jury, that the writ of erroi having been prosecuted by the prisoner, and the sentence in the replication specified having been reversed at the instance of the prisoner, he had never been in jeopardy as to the third count of said indictment, and was, in contemplation of law, in the same situation as if he had never been tried upon that count. The charge and refusal to charge were excepted to, and they are now assigned for error.
    The jury having found this issue for the state, the court ordered the prisoner to be arraigned, and to plead to the third count. This the prisoner declined to do, and the court ordered the plea of not guilty to be entered. This plea was then, on motion of the prosecutor, stricken out, and a jury impanneled to try whether the prisoner stood mute obstinately, etc., under the statute. The jury found that he stood mute obstinately, and the plea of not guilty was entered by order of the court. To the arraignment, the entry of the plea, and the striking out, the prisoner 'objected; and this, with the impanneling of the jury, and the entry of the plea, is here assigned for error.
    A jury was then impanneled to try the issue of not guilty, put in by order of the court to the third count, but having been unable to agree, they were discharged by order of the court. At the same time another jury was impanneled to try the issue, who “ found the prisoner guilty in manner and form as he stands indicted.”
    On the trial of this issue, the prisoner asked the court to charge the jury that in order to find the defendant guilty of manslaughter, the jury must find,
    1. That the prisoner killed Johnson in a sudden quarrel. Or,
    2. That the prisoner killed Johnson without intending to kill him, whilst the prisoner was in the commission of some unlawful act.
    3. And that if they found there was no quarrel, and that the prisoner killed Johnson intentionally, they must find the prisoner not guilty of manslaughter.
    4. That if the jury found there was no quarrel, and that the prisoner fired the gun, knowing it to be loaded with powder and shot, against the person of Johnson, with intent to do him thereby a bodily injury, but not with intent to kill, that the crime would not be manslaughter.
    5. That if the jury found there was no quarrel, and that the prisoner fired the gun knowing it to be loaded, against the person of Johnson, with intent to do him thereby a bodily injury, they must find that the prisoner was at the time in the comission of some unlawful act, other than the said shooting, or they could not convict him of manslaughter.
    As to. the first three points, the court charged as requested by the prisoner, but as to the fourth and fifth points, charged that such was not the law. And did charge that if the jury found, as stated in the fourth point, that the prisoner would be guilty of manslaughter. And as to the fifth point, the court charged the jury, that the unlawful firing of the loaded gun at the person of the deceased, with intent to do the deceased thereby a bodily injury, was an unlawful act, and that it was not necessary that the prisoner should have been at the time engaged in the commission of an unlawful act other than said shooting, and that upon such proof the jury might convict him of manslaughter. The refusal to charge, and the charge as given, were-excepted to, and are here assigned for error.
    A motion for a new trial was made by the prisoner, assigning amongst other causes:
    5th. That the said verdict was received at two A. M., of the 6 th December, in the presence of the prisoner, but not in the presence of his counsel, and that the counsel for the prisoner were not sent for, nor informed of the taking of said verdict, arid had no opportunity to poll the jury.
    6th. That the said verdict was received without the polling of said jury, and without any opportunity to the prisoner’s counsel to have the jury polled.

      The motion for new trial was overruled and judgment passed against the defendant.
    To reverse this judgment, this writ of error is prosecuted, and the errors assigned are :
    1st. That the third count charges no crime punishable by the laws of Ohio.
    2d. That the court erred in overruling the motion for the prisoner’s discharge.
    3d. That the court erred in admitting to the jury the papers and entries in the bill of exceptions mentioned, and in charging the jury that such papers were the record in said cause.
    4th. That the court erred in charging the jury that the defendant had not been once in jeopardy for the crime charged in said third count.
    5th. That the court erred in arraigning the defendant, and requiring him to plead to the third count.
    6th. That the court erred in refusing to charge as requested by the prisoner, and in the charge given to the jury.
    7th. That the court erred in refusing the new trial for the causes assigned in prisoner’s motion.

      Stanton $ McQoolc, for plaintiff in error.

      S. Stanbery (attorney general), for defendant.
   Avert, J.

Is the indictment good, upon which the prisoner has been convicted ?

It contained at first three counts, but at the trial the prosecutor having entered a nolle upon two of them, he proceeded against the prisoner only upon the third. As a former jury in the case had returned a verdict against him for manslaughter only, which was, in effect, a verdict of not guilty upon the two first counts; upon these, it is quite clear, the prisoner could not afterwards be put to trial. He could be prosecuted, if at all, only upon the count for manslaughter. His counsel urge that this third count is defective, and if it be found upon examination to be so, the judgment .must be reversed. The objection taken to the indictment is, that it does not charge the defendant with the crime of manslaughter, or with any offense defined by our law. There is no common law crime in this state, and we, therefore, look always to the statute to ascertain what is the offense of the prisoner, and what is to be his punishment upon conviction. The count under examination describes the crime of manslaughter at the common law; it is drawn after the approved forms adopted in the prosecution of such crimes, and is without defect as a common law indictment.

In deciding upon the objection raised, it will of course be proper to look at the crime of manslaughter as it existed under the common law. It is there defined in the following language: u- The unlawful killing of another, without malice, either express or implied ; which may be either voluntarily, upon a sudden heat, or inadvertently, but in the commission of some unlawful act.” 4 Black. Com. 191.

The word used as descriptive of the offense in the definition here given, is introduced into our statute, where it is denominated manslaughter, and where the entire description of the offense is embraced in these words, to wit: that if any person shall unlawfully kill another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of some unlawful act; every such person shall be deemed guilty’of manslaughter. Swan’s Stat. 229. It is evident that the legislature had in their view, while framing the enactment above quoted, the crime of manslaughter, as well understood at the common law. They have adopted it in substance, and almost in form. If then the same rule were admitted applicable to an indictment upon a charge defined by statute, as upon a defense defined by the common law, there could be no objection to the present count. What is affirmed in this statute of manslaughter, of the character which this count was intended to reach, except that the slayer must be in the commission, at the time, of some unlawful act ? The crime is declared to be complete “ without malice,” that is, where there exists no malice. Is it necessary to argue the negative form, that the act was done without malice ? If there is in the indictment no averment touching the malice, will not the inference be necessarily drawn that the act was without malice ? We think so. The same may be said of the other Word, “ unintentionally.”

It is claimed for the plaintiff in error, that there is no allegation in the count of the unlawful act designated in the statute. It was necessary to allege in the indictment that the prisoner was engaged in the commission of some unlawful act. And this allegation, it appears to the court, is distinctly made in that part of the indictment which charges the prisoner with an assault upon the person killed, and unlawfully discharging and shooting off at him a loaded gun. This sufficiently describes an unlawful act. And we are of the opinion that the count objected to is good, and charges the crime of manslaughter, as described in our statute. It may be further observed, that the statute defines and prescribes three descriptions of homicide: murder in the first, and in the second degree, and manslaughter. In the first, the act of killing is of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate some one of the higher crimes specified; in the second, the act is purposely and maliciously done, but without deliberation and premeditation, and in the third, the act constituting manslaughter is as above described. Now it is held, that upon a count for even the highest species of the crime, murder m the first degree, a verdict may be returned for manslaughter, and a valid judgment against the prisoner may be rendered upon such verdict. In that case, there is not a description of the offense, as it is found in the statute; but to sustain the proceeding, a rule of the common law is applied, and the count which describes the greater offense, is supposed to include the less. The court therefore find that there is no error in .the form of the indictment.

The plaintiff in error alleges, that the second trial to which he has been subjected in this case, is in violation of that provision of the bill of rights in the constitution of the state, which declares that in criminal prosecutions the accused shall not be twice "put in jeopardy for the same offense. He sought to avail himself of the privilege before he was put upon his trial upon the plea of not guilty, first by a motion to be discharged, and afterwards by the plea of former conviction. But the determination of the court was against him in both instances, and this is assigned as error. It is not claimed for the plaintiff in error that a conviction upon -a defective indictment, when the judgment has been afterwards reversed, can be set up as bar to another prosecution. It is conceded by his counsel that in such a case the prisoner may be put again upon his trial. In such a case he says, according to the construction of all the courts, the prisoner never was in jeopardy. But he claims that by a .trial before a lawful jury, upon a good indictment, and the finding of a verdict by that jury, the prisoner has been put in jeopardy, and cannot therefore be again prosecuted for the same offense. It is not readily perceived how any real distinction can be drawn between the cases. In both, it is but an error in the proceedings; in the first the error is found in the indictment; in the second the error is committed by the court, it may be in admitting or rejecting testimony, in charging or refusing to charge the jury, or in determining some other one of the various legal questions raised in the progress of the cause. If it be that when a party is convicted on a bad indictment for murder, he may be tried again because his life was not in jeopardy ; it may with equal truth be said, under our system of laws, and since the allowance of bills of exceptions and writs of error in criminal prosecutions, he was not in jeopardy in case any other substantial error is found in the proceedings. For in this state any other error is as fatal as that which appears in the indictment, and as effectually secures him against the consequences of a conviction. The prisoner is held liable to be tried again upon the supposition that he never was in jeopardy. This upon principle and as a correct rule of law, may be allowed to govern courts in the trials of criminals. It will operate to subject them to a trial upon the merits, instead of allowing them to escape upon a mere technical defense. But though in a legal sense, they may be said never to have been in jeopardy, when the indictment was bad, yet this is not always true in point of fact, doubtless in some instance elsewhere as well as here, criminals have been tried -and convicted under a defective indictment, and have afterwards suffered the punishment of the law without ever seeking or obtaining a reversal of the judgment. ■

Still the law of the state, though it holds a party, if the first judgment against him has been reversed, to abide the issue of a second trial, must nevertheless be allowed the credit of humane maxims and principles which are continually employed in behalf of prisoners upon trial. Their rights are regarded with scrupulous care, rules and presumptions are made to operate in their favor. If the plaintiff in error could succeed upon the point which has just been considered, he would himself escape and avoid a second trial, because he had once before been tried for the same offense upon a good indictment; but new trials, often the means of safety to the accused, would then be at an end, for it would be contrary to the bill of rights to allow a second trial under a good indictment. But the statute which first authorized the reversal of judgments in criminal cases, did not regard the second trial which might result from the reversal, as a violation of the bill of rights; nor have the courts so regarded it, for they have always acted upon a different principle, and uniformly directed a second trial whenever the case seemed to require it.

Upon the trial of the question before the jury of a former conviction, complaint is made that improper evidence was received ; instead of the record, all the original papers, transcripts -of the journals of the supreme court and common pleas, etc., were admitted by the court. In this the court only followed a settled and long established practice, and even at the present term there has been occasion in more than one instance to give a sanction to the principle. Such papers and entries are good evidence both in civil and criminal cases, when no formal record has been made.

The court ordered the prisoner to be arraigned and to plead to the third count of the indictment, and this is alleged as an error.

The reversal in the case necessarily put an end to the judgment, and the verdict on which the judgment had been founded ; but according to no principle could it be made to reach the prisoner’s plea. It is true, the first verdict was in effect a return of not guilty upon the two first counts; but when the cause was remanded to the common pleas it stood, as to the third count, precisely as when first at issue, and before any error had occurred. The reversal did not extend to the plea. And if the entry of a nolle prosequi as to the first and second counts, the plea interposed by the defendant of a former conviction, together with the singular issue made up for the jury, could have the effect to set aside the first plea of not guilty, then, by a direct authority in the statute, (Swan’s Stat. 726,) the court had power to impannel a jury, to try whether the prisoner was standing mute obstinately; and if they should so find, to direct the plea of not guilty to be entered, and to proceed with the trial. In all this no error is perceived.

After a verdict against the prisoner on the plea of not guilty, a, motion was made by him for a new trial, for several reasons, and amongst the rest, because the verdict was received at 2 A. M., of the 6th of December, in the presence of the prisoner, without his counsel, and without notice to the counsel, and without an opportunity to poll the jury. There is no reason for supposing that the liberty of polling the jury was denied to the prisoner. Nor is there any law making it imperative, that the counsel of the prisoner should be sent for, to be present upon the delivery of the verdict by the jury; though care ought to be taken to secure to the prisoner the benefit of his presence upon so important an occasion. There might, however, be cases in which it would be proper to dispense with the presence of the counsel; and a discretion must be left to the court of common pleas upon this subject.

The court are of the opinion, upon the whole case before them, that there is no error in the record and proceedings of the court of common pleas; and their judgment is affirmed.


author: Hitchcock, C. <T.

text:
    Adolph A. Gury and others v. Lazarus Tannenwald and Wolf Cohen and others.
    Great strictness will be required in proceedings under the act of February 25th, 1848, amendatory of the act directing the mode of proceeding in, chancery, especially in setting forth the matters required in the second section ; and if a bill be defective in this particular, it may be dismissed at any stage of the case.
    This is a bill in chancery, reserved in Hamilton county.
    Gury filed a bill in the court of common pleas of Hamilton county against the defendants, under the act to amend the act directing the mode of proceeding in chancery, representing Tannenwald as his debtor, and Cohen as having in his possession goods belonging to Tannenwald, or as being indebted to him.
    The bill, after averring the indebtedness of Tannenwald and the pendency of a suit against him, alleged that Tannenwald was insolvent and wholly unable to pay his debts, and was about to convey, sell and transfer the only property he had, to wit, three several stocks of clothing in his stores in the city, describing them, to some persons whose names were unknown to the petitioner, that he might thereby convert his property into money, with intent to defraud his creditors, and that unless restrained by injunction, the complainant verily believed he would do so. It further alleged, that if said transfer or assignment had been already made, the person or persons to whom made, owed said Tannenwald for the same a sum or sums of money, due or to become due, the true amounts whereof the complainant could not state, and that there were other persons, to the complainant unknown, who owed Tannenwald various sums of money. It also alleged, that Tannenwald had no property in the state, which could be reached by execution at law, except the stocks of goods aforesaid, and a small lot of ground which was covered with an incumbrance for more than it was worth; and that if he was permitted to retain the goods, the complainant believed he would squander or otherwise make way with them.
    The bill, which was sworn to, prayed an injunction, the appointment of a receiver to take possession of the goods, etc., and that on the' final hearing, the claim of complainant might be paid out of the fund created by the sale of goods and col lection of debts.
    Other persons were subsequently made parties to the bill, and suits in chancery were commenced by others against the same defendants, to subject the same fund, claiming a pro rata distribution.
    All'the cases were considered by the court together, and such other facts as are necessary to a full understanding of the questions presented, will be found stated in the opinion.

      Spencer Qorwine, for complainants.

      Fox 8p Lincoln, and Coffin $ Mitohell, for defendants.
   Hitchcock, C. <T.

These cases are presented to the court, under such circumstances that it is difficult to settle them in accordance with any well established rules of chancery practice. The bills were filed, or intended to be filed, in pursuance of the provisions of the “ act to amend an act directing the mode of proceeding in chancery,” passed February 25th, 1848, (46 Ohio L. 96.) In three of the cases it is shown, that on the 15th May, 1848, suits in assumpsit were commenced against Tannenwald, and the bills were filed on the 16th of the same month, and injunctions granted. On the evening of the same day, between 11 and 12 o’clock, under the bills in chancery, the goods of the defendant were taken possession of by a receiver appointed by the court. On the 17th of the same month, a suit, also in assumpsit, was commenced, at the suit of the other complainant. On the 18th day of the month_ another bill was filed, professedly in aid of the last suit. An injunction was allowed, and the same receiver appointed as in the other cases: On the 16th May, Tannenwald left the country, and it appears that an attachment was issued and levied upon a part of his goods. The claims which were the foundation of the aforesaid suits were in part' due, and in part not due. At the July term of the court of common pleas, subsequent to the seizure of the goods, judgments were rendered upon the claims of the respective plaintiffs at law, as well upon the claims which were not due, as upon those which were due. At the November term, the court ordered the sale of the property in the hands of the receiver, and it was sold accordingly. The court also entered up a decree for the several complainants, for the amount of their respective judgments, but suspended until a future term making an order for the distribution of the fund. Other creditors of Tannenwald, as well as those who had commenced suit, and recovered judgments, filed petitions setting forth their claims and praying for a pro rata division of the funds. Eventually the court of common pleas made a final decree, directing that the fund should be distributed among the creditors of Tannenwald, in proportion to their respective claims. From this decree an appeal was taken to this court. On the one side it is claimed that the only question for the consideration of this court, is, as to the distribution of this fund. Whether the first judgment is to be first satisfied, and then the others in succession, or whether all the creditors are to share in the distribution. On the other hand, it is claimed that the whole matter is open for consideration.

The entire proceeding is a novel one, and purports to be under a very recent statute. It will be necessary for us to give' that statute a earful examination. Before doing this, however, it may be proper to remark, that the policy of this tate has ever been to protect the property of a resident citizen from seizure under legal process, until a judgment is first recovered against him. Whether it was the intention of the legislature, in passing the act of 1848, to' abandon this policy, is a matter worthy of serious consideration. In some states in the Union, a creditor is permitted to issue in the first instance an attachment, and seize upon the property of his debtor; but it is not so in Ohio. The property of an absent or absconding debtor may be attached, not the property of a resident citizen.

In the first section of the act of 1848, (46 vol. Ohio L. 96,) it is provided that “ where any suit at law for the recovery of money, or damages, for any cause of action which would survive,” etc., “ shall be pending, and the plaintiff or complainant in such suit, his agent or attorney, shall have reason to believe, and shall in fact believe, either, 1. That the defendant in such suit is about to abscond from his usual place of abode in the state; or, 2. That such defendant is removing, or is about to remove with his property or effects out of this state; or, 3. That such defendant is about to convey, or assign, remove, conceal or dispose of his property, with intent, or so as to defraud, hinder or delay his creditors; or, 4. That such defendant fraudulently contracted the debt, or incurred the obligation upon which such suit is brought; or, 5. That the debt or obligation upon which such suit is brought, was con tracted by the defendant out of this state, and that such defendant, with intent to defraud, hinder or delay his creditors, absconded from his former place of abode in another state or territory, district or county, or secretly removed his property from such other state, territory or district, into this state, with intent, or so as to hinder, delay, or defraud his creditors; the pendency of such suit, together with either of the causes above enumerated, shall entitle the plaintiff or complainant in such suit, to file his bill of petition against the defendant, his debtors, and those having any custody of his property, money or effects, in the same way as is provided in the fifteenth section of the act to which this is an amendment.”

The fifteenth section of the chancery act of 1881, and to which the first section of the act of 1848 seems to be an addition, provides, that when a suit is pending “ against a nonresident defendant, or against a resident defendant, who has during the pendency of said suit, either secretly departed out of the jurisdiction of the court, or secreted himself or. property within the same, so that the ordinary process of law cannot be served on either, and there should be any person or persons, res-dent within such jurisdiction, who is, or are indebted, or has in possession goods and chattels, rights, credits, moneys or effects, belonging to such non-resident, or secreting defendant, the said plaintiff at law, or complainant in chancery, may file a petition against the person or persons so indebted, or having in his possession the goods and chattels, rights, credits, moneys or effects, of such non-resident, or secreting defendant, annexing an affidavit of the truth of the allegations therein contained, and of the amount" of the debt or damages by him claimed ; and the court may, in their discretion, enjoin such other person from paying over, conveying away, or secreting such debts by him owing to said non-resident, or secreting defendant, or his goods and chattels, rights, credits, moneys or effects, until the final judgment at law, or decree in chancery, can be had in such former case. And the court, on final hearing, shall make such final order or decree between the parties, as they shall think just and reasonable.”

The intention of this section is manifest. Its provisions are applicable in a case where, after commencement of suit, a defendant absconds or secretes himself. If he had absconded before any suit was commenced, redress might be had under the attachment law. But as a debtor might abscond after suit commenced, the general assembly thought proper to prescribe ■a mode by which his debtors, or those having possession of his property, should be restrained from the payment of those debts, or the disposition of the property, until the pending suit should be determined, that the same, or the avails thereof, might be applied to the satisfaction of the judgment. In this proceeding, the first step taken is by injunction, and if the injunction is not obeyed, the individual not complying with it, may be proceeded against as in other cases. After judgment, the court having the case before it, might with propriety proceed in the chancery suit, according to the provisions of the 16th section of the chancery act.

The act of 1848, provides for an additional class of cases, to which the provisions of the fifteenth section may be applied. It applies as well to resident debtors, to those who are in the open transaction of business, as to those who have absconded or secreted themselves.

The second section of the act provides, that “ every bill or petition filed under this act, shall contain a succinct statement of the cause of action for which the original suit was commenced, the amount due thereon, a brief statement of the facts claimed to justify the belief of the existence of any of the causes above specified, and shall be verified by the oath of the petitioner, his agent or attorney.

It is claimed by the defendants, that the bills in the cases now before the court, are upon the face of them defective, in not being conformed to the provisions of this section. On the other hand, it is insisted, that this court has nothing to do with this question. That it is a question peculiarly in the province of the court or judge ordering the injunction. It is further objected, that no appeal was taken from the decree, ascertaining the amounts due the respective complainants, but only from the final decree ordering distribution. It seems to this court that it is not too late to look into the entire proceedings, and in look ing into the several cases, it is manifest that things were done in great haste, as is usually the case, where there is, as there manifestly was in this case, a scramble of creditors to get possession of the property of a debtor, and, as among themselves, to acquire a priority and advantage.

In the opinion of the court, this law should be construed with great strictness, as much so, perhaps, as any one in our statute book. He who would take advantage of it, must bring himself within both its letter and its spirit. We do not think that the petitions contain those precise and definite allegations which the law requires, and had the cases come before us, divested of some of their peculiar features, we should at once •have dismissed the bills.

In the third section of the act it is enacted, “ that the supreme court, or court of common pleas, or any judge of either of said courts, on being satisfied by the oath of the petitioner, his agent or attorney, or by that and such other affidavits as such' court or justice may deem it reasonable to require, of the existence of either of the five causes above enumerated, may grant an injunction to restrain the defendant in such suit, from any disposition of any property, credits or effects, belonging to the defendant in the original proceedings, inconsistent with the security of the petitioner, until the claim upon which the original suit was brought, shall have been adjusted and satisfied, or until further order of the court.”

Under this section, -a creditor, if he can bring himself to believe that any one of the five causes enumerated in the first section of the act, exists, and will make oath to that belief, assigning his reasons therefor, may put a.n entire stop to the business of his debtor, and ’ place the property of that debtor in such a situation that he cannot use it, nor even collect the debts due to him. The debtor may be restrained from any disposition of any property, credits or effects, * * * inconsistent with the security of the petitioner,” until the claim of the petitioner is adjusted and satisfied. There are, undoubtedly, cases where it might be proper to resort to such a remedy as this, but it is the duty of courts to see that there is no abuso, no mistake in the pursuit of the remedy. Eor it will be seen that by its application, a man in good circumstances, in prosperous business, may at once be broken up, unless he can satisfy any claim which may come against him, upon presentation. I say it may be so. It would not, however, under a proper ad ministration of the law. But we must remember, that any judge,, of either the supreme court or court of common pleas, has power to issue the injunction provided for in the statute.

Although there is no provision in this statute for seizing upon the goods of the debtor, it appears in the cases now before us that upon the filing of the bills a receiver was appointed, and the property came into his hands. I am not aware that there can be any objection to this, inasmuch as it was voluntarily delivered to him by the defendant Cohen, in whose possession it was left by Tannenwald. This property has been sold, and the money is in the hands of the receiver for distribution. The question is raised as to the order of distribution. I am not prepared to say that if the proceedings had all been regular, the creditor who first filed his bill would not have gained a preference. We do not, however, feel it necessary to determine this question. In our opinion, the complainants do not bring themselves within the provisions of the statute, and we should dismiss the cases entirely but for the fact that the property of the debtor has been reduced to money, and the avails are in the hands of an officer of the court. The creditors are also before the court, not only those who have recovered judgments, but others. Under these circumstances, we believe it better to retain the case and distribute the fund, as it would have* been ■distributed under the attachment law. That is, that the said ■fund be distributed to the several creditors before the court in proportion to-their respective claims, and a decree may be taken accordingly. It is not intended by this decree to establish any general rule, as to cases under the act of 1848, but it is based upon the peculiar circumstances of this particular case.

Besides, this is carrying out the purposes of Tannenwald as •expressed before he left the state. This property was by him, as the cases show, left in the possession of Cohen, or intended so to be left, for the purpose of distribution to his creditors in proportion to their respective claims.


author: Avery, J. Caldwell, J.,

text:
    Preston W. Sellers v. George Dugan.
    Under the act of 1831, “ for the prevention of immoral practices,” a sale on Sunday of four hundred bushels of corn, is void, and no action for damages can be sustained for the breach of such contract.
    This is a writ of error to the Supreme Court of Brown county.
    The writ was allowed for the purpose of bringing before the court the act of 1831, (Swan’s Stat. 255,) and of settling the construction of that part of the first section which prohibits, under a penalty, common labor on Sunday. The defendant, Dugan, brought an action of assumpsit against Sellers to recover damages for the breach of a contract for the delivery of four hundred bushels of corn. Sellers claimed in the defense that the contract was made on Sunday, the plaintiff’s agent representing at the time that the plaintiff’s boat would be at the landing in a few days and receive it. By the evidence it was shown that the contract was made on Sunday, and a small part of the price of the corn was paid.

      Sellers ^ Marshall, for plaintiff in error.

      O. Baird, for defendant.
   Avery, J.

That section of the statute upon which we are called to put a construction, is in these words:

That if any person of the age of fourteen years or upwards, shall be found on the first day of the week, commonly called Sunday, sporting, rioting, quarreling, hunting, fishing, shooting, or at common labor, (works of necessity and charity only excepted,) he or she shall be fined in a sum not exceeding five dollars, nor less than one dollar; provided, nothing herein con tained shall be construed to extend to those who conscientiously do observe the seventh day of the week as the Sabbath, nor to prevent families emigrating, from traveling; watermen from landing their passengers; superintendents or keepers of toll-bridges from attending and superintending the same ; or ferrymen from conveying travelers over the waters, or persons removing their families on such days.”

What is the right construction of the words, in this section, “ at common labor, works of necessity and charity only excepted” ? The act under consideration, which is entitled “ an act for the prevention of certain immoral practices,” begins with an enactment against specified amusements, against quarreling, and against common labor, on the day called Sunday; but it excludes from its operation all such as conscientiously observe the seventh day of the week as the Sabbath. In the bill of rights of our state constitution, it is declared, that religion, morality and knowledge are essentially necessary to good government and the happiness of mankind; but it is there also declared, that all men have a natural and indefeasible right to worship Almighty God according to the dictates of conscience; that no human authority can control or interfere with the rights of conscience; * * * that no preference shall be given by law to any religious society or mode of worship.” There is no citizen of the state, who is not familiar with the terms Sunday and Sabbath, used in the act, and with what is known to be the common and religious observance of the day. There is no reason to doubt that the legislature had -power given to them by the constitution, to pass a law prohibiting all persons who do not conscientiously observe another day as the Sabbath, from engaging in sports or labor on that day. Whether the power ought to be exercised, would depend upon their sense of the public good; and in our representative government, it is very certain that they would reflect, in that particular, as in others, the public and general sentiment.

When the law is decided to be within the constitutional power of the legislature, we have next to ascertain their intention, if possible, in passing it, and give effect to such intention.

A similar statute upon this subject in England, has, upon numerous occasions, received a construction in the English courts. The statute is the 29 Car. II, c. 7, sec. 1, and provides, that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business or work of their ordinary callings, on the Lord’s day, or any part thereof, works of necessity and charity only excepted j and that every person of the age of fourteen years, offending in the premises, shall forfeit five shillings. The case of Fennel and another v. Riddler, was a decision upon this statute of the 29th Charles. There the court determined that a horse-dealer could not maintain an action for the sale and warranty of a horse, made by him upon a Sunday. Bayley, J., in delivering the judgment of the court, says: “ It (the action) was an action upon the warranty of a horse. The plaintiffs were horse-dealers, and the horse was bought and the warranty given on a Sunday; and the only question was, whether, under the 29th Charles, the purchase was illegal, and the plaintiffs precluded from maintaining the action. * * * That the purchase of a horse by a horse-dealer is an exercise of the business of his ordinary calling, no one can doubt.” In the course of the opinion, he says further: Upon the principle that this statute is entitled to such a construction as will promote the ends for which it was passed, that it applies to private as well as public conduct, and that the purchase by the plaintiff was within the mischief intended to be suppressed, and within the words made use of to suppress it, we are of opinion that the plaintiffs cannot maintain the present action.” In this same opinion, Drury v. De la Fontaine, (1 Taun. Rep. 155,) is noticed, which was a case on a private contract for the purchase of a horse, and where Lord Mansfield laid it down that a contract made on Sunday, by any man in the exercise of his ordinary calling, would be void.

In the 4th Bingham 84, is a case — Smith v. Sparrow — in which it was held that an action could not lie on a contract of sale entered into on a Sunday, though entered into by an agent. Our statute prohibits “ common labor; ” the English statute, “ worldly labor, business or work.” Ours uses the terms common labor, with no exception but works of necessity and charity. The English statute has this qualification further, it must be work “ of their ordinary calling; ” and upon this qualification some of the English decisions turn. The construction of the 29th Car. II, is well settled in England; and there a contract made by one in the exercise of his ordinary calling, is void.

In the State of Alabama, a statute is in force forbidding, under a penalty, worldly business or employment, ordinary or servile work, works of necessity or charity excepted; and after enumerating shooting, sporting, etc., adds: “ and no merchant or shop-keeper, or other person, shall keep open store, or dispose of any wares or merchandise, goods or chattels, on the first day of the week, commonly called Sunday, or sell or barter the same,” etc. Under this statute, it has been held, O'Donnel et al. v. Sweeney, 5 Alabama Rep. 467, that a note executed upon the purchase of a horse, on Sunday, cannot be enforced. It was said in that case by the judge giving the opinion of the court — it had been contended in argument that the design of the legislature was to prevent public sales, and had no reference to private contracts; but he says: “We do not think the design of the legislature, in the passage of the act, can be doubted. It was evidently to promote morality and advance the interests of religion, by prohibiting all persons from engaging in their common and ordinary avocations of business or employment on Sunday, unless impelled thereto by necessity, or engaged in acts of charity.” In the 10th Alabama 566, Dodson and another v. Harris and another, the same court decides that, where a horse is sold on Sunday and a note taken on the Sunday, both the contract and note are void. The court in this case refer to several other adjudged cases in the state to the same effect. The language of the statute of Alabama is more comprehensive than that of the 29th Charles, and may be thought to be somewhat more comprehensive uhan ours; whether it is or not, it is more minute and particular in designating the acts prohibited.

But our statute upon this subject, and in regard to the words under examination, “ common labor,” has received an interpretation by this court, which is in point upon the present question. The ease is in 15 Ohio Rep. 225, City of Cincinnati v. Rice. There it was decided, that these words “ common labor,” in the act now under review, embrace the business of “ trading, bartering, selling or buying any goods, wares or merchandise.” A majority of this court believe that that was a sound construction of. the act, and that any other would have been a narrow construction.'

A large number of the states of the Union, have by statute prohibited, under a penalty, both amusements and labor on Sunday; though they have varied in the expressions employed to accomplish the object. Upon principle, where an act is prohibited under a penalty, any contract for the performance of such an act is void. Accordingly, in the reports of many of the states, cases are found, where a contract is declared void, because ic is in violation of a law prohibiting, by some form of expression, labor or business on Sunday..

A majority of the court are of opinion, that an ordinary contract made in the course of business, on a Sunday, is void, and that no action can be sustained, to recover damages for the breach of such a contract; that the contract between these parties, on which the suit was originally brought, is void, because it was made on Sunday.

The judgment of the supreme court for Brown county is reversed.

Caldwell, J.,

dissenting.

I cannot give my assent to the decision which the majority of the court have made in this case. 1 do not believe that the court have any legal authority for so deciding. The decision is claimed by the court to be authorized by the 125th section of the act providing for the punishment of crimes and misdemeanors of the third class. That statute provides that if any person of the age of fourteen years or'upwards, shall be found on the first day of the week, commonly called Sunday, sporting, rioting, gambling, hunting, fishing, shooting, or at common labor, (works of necessity and charity only excepted,) he or she shall be fined, etc.

Now do the facts of this case come within the provisions of this law ? The pleadings are silent on the subject of the contract being made on Sunday; all that we have on the subject is, that two of the witnesses speak of the place where the contract was made, and merely state, without any explanation whatever, that it was on Sunday. All we know then about the' matter, is, that the parties met at the house of a neighbor, that one of them was about to remove from where he resided, and remarked that he would have to sell his corn; the other offered a price that he was willing to take, and the contract was consummated. It does not appear that any one was disturbed by any show or bustle of business, or that it was done under such circumstances as to wound the feelings of any one, who might consider the act a desecration of the day; in the peculiar language of the statute, they were not “ found ” by any such person, as appears from the evidence. Indeed, the circumstances of the case, to my mind, go to preclude the idea of any such exhibition or disturbance. The court bring this act within the terms of the statute, “ common labor.” What is the object of the statute ? We do not suppose that any part of its object was to punish persons for not observing the Sabbath in a particular way; this would be persecution, and as the legislature have no power under our constitution to pass such a law, it would be a nullity. How far, then, can the legislature go in this matter ? No farther than to protect that portion of the community who observe the day as hallowed to religious exercises, from disturbance and annoyance. I think a careful examination of the statute will. show, that the legislature have been careful to keep within this bound. To say that two men making a contract, in a house, on Sunday, could be made amenable to a criminal law providing a punishment for those who are found at common labor, is certainly giving a penal enactment a very liberal construction. It would certainly be a very awkward account of the matter, if a person who had witnessed this sale of the corn, were to describe it by representing the parties as being engaged in common labor. It is a contradiction to the terms as used in common parlance. It is said, however, that the term common labor means ordinary business or employment. Now what the ordinary business of these men was, we do not know. One of them, it appears, had raised a small crop of corn. Now if this man had been found in his field at work on Sunday, or had been on that day engaged in gathering his corn, or had been engaged in other common business on his farm, he would have been engaged at common labor. The most reasonable conclusion that can be drawn from the facts we have before us is, that these men met together that day, at their neighbor’s house, and that the contract then happened to be made, because they had so far observed the Sabbath, as to abstain from their usual employment.

It is said that a man keeping open his store and selling goods, or engaged in business of that kind, would come within the provisions of that statute. That, however, differs very widely from a case of this kind: that is a case of a continuous engagement in ordinary business, of common labor, both of the mind and body, and so presents itself to the public, and thus produces the evil sought to be remedied by the statute. The statute, we think, never could be intended to operate in a single instance of the union of two minds in making a contract. It would, I think, be rather a singular spectacle to see two men seized and taken before the proper authority, and punished for making a contract on Sunday, when no disturbance nor annoyance was given to any one, by the act. And yet the court (and as I think by a strained construction of the statute) have virtually decided that such is the law. If an act such as making a single contract, on Sunday, that in its nature is not calculated to disturb the peace and quiet of the day, can be made the subject of legal supervision and penal enactment, it can only be on the ground that it is abstractly wrong, immoral. If the legislature can punish an act of this kind, they can another, and their power to persecute, to punish for whatever, they may consider abstractly wrong, is unlimited. It is the glory of our country that the right of belief in .any particular religious tenet without molestation on account thereof, is granted to every one; but this principle can only be preserved by extending it equally to the unbeliever. It is the same great indivisable principle that alike protects humanity, the birth-right of the whole, which each with equal reason may claim, should he believe any religious creed whatever; or should he disbelieve the whole.

We have been referred to the decisions of the court for authority upon this subject. Those decisions are all made on statutes essentially differing from our own. We know that many authorities can be found, both ancient and modern, that have gone as far as this decision in enforcing the observance of the Sabbath. We do not propose to examine them for two reasons: one is, the one mentioned above, that the statutes on which they are made, differ from ours. Another is, that the pernicious and ruinous consequences of enforcing religious principle by legal enactment have been so well tested, and are so apparent, that any decision of the kind should not be regarded. Indeed, if I were to attempt to present the error into which I think the court have fallen in this decision, in its strongest light, I would do it by a reference to the action of the courts and legislative bodies, not only in Europe, but in some parts of this country, in its early settlement, in attempting to enforce the observance of the Sabbath by law. It always has, and always will produce, a pharisaical and hypocritical observance of a religious duty, and creates a v spirit of cen sorious bigotry, and tends powerfully to destroy every religious feeling of the heart.

I know of but one reported decision in this state ; that is the-case of Swisher’s Lessee v. Williams’s Heirs, Wright’s Reports 754. The court there say “ the objection that the deed was executed on Sunday will not avail you. Both parties partook equally of the sin of violating the Sabbath, and the law does not require of us to enable either party to add to the sin,, by breaking the faith pledged on that day, and commit a fraud, out of assumed regard for the Sabbath day.” This decision is directly in point, and I think good law. I think the decision of the court on the circuit was right, and should have been affirmed.


author: Spalding, J.

text:
    Henry Weaver v. James Russell and Martin Gallegher.
    In a capias ad respondendum against a garnishee in attachment, the amount sworn to be due must be indorsed upon the writ.
    Tms is a writ of error to the Supreme Court for Champaign county.
    The original proceeding in the court below was by foreign attachment.
    Under the 5th section of the “ act allowing and regulating writs of attachment,” the plaintiff filed his affidavit, as follows:
    “ The State of Ohio* Champaign county, ss.
    “ Personally came before me, the undersigned, an acting justice of the peace in and for said county, Henry Weaver,, and made solemn oath, in due form of law, that James Russell is indebted to him in the sum of two hundred and seventy dollars, by note dated September 2d, 1846, with interest from ■date ; that said James Russell is not a citizen or resident of this state,' and that Martin Gallegher, now in this county, but not a citizen or resident of this state, has, as affiant has reason to, and does verily believe, money and property, to wit, about one hundred and fifty head of cattle in his hands and possession, of the money and property of J ames Russell; that he, has good reason to believe, and does verily believe, that said Martin Gallegher will abscond and leave this county and state before judgment and execution can be had against him, the said Martin Gallegher.
    (Signed,) “ H. Weaver.
    “ Sworn to and subscribed this 22d day of July, 1847.
    “ Nelson Rhodes, J. P.”
    Upon this affidavit, a capias ad respondendum issued from the court of common pleas of Champaign county, on the same 22d day of July, 1847; which was indorsed as follows:
    “ July 22d, 1847. I have taken the body of Martin Gallegher into custody, and have taken a bond for his appearance at next term of Champaign common pleas, with A. R. Colwell and William H. Colwell, his securities, and have filed a copy of the bond herewith.
    (Signed,) “John West, Sheriff.”
    At the November term, 1847, of said court, the attorneys of Gallegher filed their motion to quash the writ and proceed ings in this case, for irregularity in this, to wit:
    1st. For the want of an indorsement of the cause of action on the capias.
    2d. Because the sheriff did not return the names of the bail; and because the defendant was a non-resident, and for other irregularities; and also to discharge the defendant on common bail.
    At the same term, said motion was heard, and the court decided that said writ of capias was illegal for want of a cause of action indorsed thereon, and held such indorsement to be necessary, under the 3d section of the act to regulate the practice of courts, passed March 8,1831; to which decision the plaintiff excepted, etc.
    These proceedings were brought into the supreme court of Champaign county, by a writ of certiorari returnable to the July term of said court, A. D. 1848, where the plaintiff wa8 heard on his assignment of errors, to wit:

      “ 1. The court erred in deciding that an indorsement of the said writ was needed, and in quashing the writ for that cause.
    “ 2. The court erred in deciding the said motion for the defendant, when the decision should have been for the plaintiff.”
    And the judgment of the common pleas was affirmed, with costs.
    This writ was allowed for the purpose of reviewing the judgment of the supreme court.

      James McJSfemar, for plaintiff in error.

      Baldwin Mason, for defendants.
   Spalding, J.

The question for decision is, whether an indorsement of the cause of action and of the amount appearing to be due, is required to be made upon a writ of attachment.

It might be deemed “ sharp practice ” to take the body of a garnishee to answer a claim of two hundred and seventy dollars, when he has in possession, within the jurisdiction of the court, one hundred and fifty head of cattle belonging to the absent debtor, even though we had no statute law abolishing imprisonment for;¡debt.

But, waiving all considerations of this sort, how stands the act regulating the practice of our courts in the issuing of mesne process ? It provides, “ that any person demanding a writ, shall file a prsecipe with the clerk of the court, who. shall thereupon make out and deliver such writ as may be required; and, in all cases of mesne process, he shall indorse thereon the cause of action and the amount appearing to be due, or sworn to, as the same may be stated in the prsecipe or affidavit to hold the defendant to bail.”

It will hardly be pretended that a capias ad respondendum in attachment is not a mesne process; and if it be the policy of the law to give to the real debtor an opportunity to exone rate his person from imprisonment by paying the amount in dorsed on the writ, when suit is prosecuted against him in the ordinary way, much more, it would seem to us, should a third person be protected from arreSt if willing to pay the officer the sum claimed by the creditor.

To enable him to do this, the law has wisely provided that, in all cases of mesne process, the amount appearing to be due, or sworn to, as the same may be stated in the prsecipe or affidavit to hold to bail, shall be indorsed by the clerk upon the writ.

We hold the rule to be a beneficial one, and applicable to all cases of mesne process, but more especially to the very strin-, gent process of a capias ad respondendum against a garnishee.

The judgment of the supreme court for the county is affirmed. „