has not been engaged in the continuous practice for the period prescribed in the statute), for ten consecutive years before the passage of the act, was sufficient "to protect the citizens of Ohio" from the evils to be apprehended from unskilled practitioners, the like experience, after that date, should also suffice. That this was the legislative view is evident from the language of the proviso. "That in all cases where any person has been continuously engaged in the practice of medicine for the period of ten years or more, he shall be considered to have complied with the provisions of this act." In the opinion of the majority of the court, this proviso is a clear declaration, that whenever the right of a person of good moral character, to practice medicine or surgery for reward or compensation, is questioned, such right may then be established by showing that previous to that time, he has been continuously engaged in the practice for ten years or more.

The latter clause of the proviso "that where "that where persons have been in continuous practice of medicine for five years or more, they shall be allowed two years in which to comply with such provisions," does not conflict with this view. We admit that the five years here referred to must ante-date the taking effect of the act. But the case here provided for does not exclude the empiric from practicing for reward or compensation during the two years of probation, while the person seeking to qualify himself by continuous practice subsequent to the taking effect of the act is debarred from reward or compensation until the whole period of ten years is completed.

It must be observed that this statute does not declare the practice of an empiric, ipso facto, unlawful, but only such practice for reward or compensation. The provision in the penal section of the act (section two) that "in no case wherein this act shall have been violated, shall any person so violating receive compensation for services rendered" does not extend the inhibitions of the first section. Hence, for this reason the judgment below could not be disturbed, as the record does not show that the plaintiff below practiced for reward or compensation, after the passage of the act, until his period of ten years continuous practice was complete. But a majority of the court do not put their judgment of affirmance on this ground; but on the broader grounds that ten years of continuous practice of medicine, whether before or after the taking effect of this act, and whether for compensation or not, relieves the practitioner from inhibitions imposed upon empirics by its provisions. Unquestionably if such period were devoted to the practice beyond the limits of this State, such practitioner would not be amenable to the provision of the statute. True, it may be said that such probationary practice is not in violation of the act; but that circumstance does not add or detract from the knowledge or skill which the statute assumes is gained from experience, and which is deemed to constitute the necessary qualification of a practitioner.

We fully appreciate the force of the argument

on the other side, that a statute should not be so construed as to create a right in one who acts in violation of its provisions. But this rule of construction does not apply in this case. This statute was not intended to create a right in any one to practice medicine. It was simply intended to prohibit the exercise of the right, (which before was universal), by unqualified persons. The right remains in all persons except those from whom it is taken away by the statute, and it is not taken away from a person who, at any time, has been in the continuous practice for ten years or more. Such we think is the manifest intent and purpose of the act when considered as a whole; and the manifest purpose can not be defeated by any general rule of construction. Judgment affirmed.

WHITE, J. dissenting:

The first section of the statute makes it unlawful for any person to practice, or attempt to practice medicine for reward or compensation, without having the qualifications therein prescribed. By the proviso two classes of persons are excepted from the operation of the act: 1. Persons who have been continuously engaged in the practice of medicine for a period of ten years; 2. Persons who have been in the continuous practice of medicine for a period of five years. The last-named class is allowed two years within which to comply with the prescribed provisions. The second section of the act declares the practice or attempt to practice in violation of the first section an offense and prescribes the penalty to be not less than fifty nor more than one hundred dollars. For a second offense imprisonment is added. The act was passed May 5th and took effect October 1st, 1868. Its object is declared to be to protect the citizens of Ohio from empiricism, and it should receive such construction as will promote this object. In the opinion of the majority of the court, this is accomplished by the continuous violation of the statute for a period of ten years, thus during that time exposing the citizens to all the evils of empiricism. The claim is, as I understand it, that ten years of such practice is by the statute made equivalent to having the other qualifications prescribed. This, in effect, makes the statute operate to reward and punish the same acts or conduct. To this reasoning I cannot assent.

1

The proviso embraces only the two classes named, who had been engaged in practice five and ten years respectively at the time the act took effect, and was intended solely for their benefit.

OKEY, C. J. Concurs in the foregoing dissenting opinion.

"Lord Ellenborough showing some impatience at a barrister's speech, the gentleman paused and said, 'Is it the pleasure of the court that I should proceed with my statement?' 'Pleasure, sir, has been out of the question for a long time; but you may proceed.'"'—Oddities.

SUPREME COURT OF OHIO.

JAMES MORGAN, SUPERINTENDENT OF THE CINCINNATI WORK HOUSE,

v.

WILLIAM NOLTE.

April 19, 1881.

1. The only limitations to the creation of offences by the General Assembly, are the guarantees contained in the Bill of Rights.

2. These guarantees are not infringed by sec. 2108 of the Revised Statutes, which authorizes cities and villages to provide for the punishment of known thieves, pickpockets, watch-stuffers, etc.

3. An ordinance under this statute, providing for the punishment of any known thief found in the municipality, is valid.

Error to the Probate Court of Hamilton County. William Nolte having been sentenced and committed to the work house, by the Police Court of Cincinnati, sent out a writ of habeas corpus from the Probate Court of Hamilton County against James Morgan, Superintendent of the Work House, to obtain his discharge from custody.

The return showed that Nolte was held in custody under a commitment from the police court issued in pursuance of his conviction and sentence by that court. A certified transcript of the proceedings in the police court was also made part of the return, from which it appears that a prosecution was instituted in said court, by the City of Cincinnati against Nolte upon an affidavit containing the following charge:

"That one William Nolte, on the 21st day of December, A. D. 1880, at the city and county aforesaid, being a known thief, was found in the city, contrary to the ordinance of said city."

The defendant pleaded not guilty to the charge, and on the trial having waived a jury was tried to the court, The court, after hearing the testimony, found him guilty and ordered that he be committed to the work house for the term of thirty days.

On the return to the writ of Habeas Corpus the probate court ordered the discharge of Nolte from the custody of the superintendent of the work house.

The object of the present petition in error is to obtain the reversal of this order. On account of the public interest involved in the question, and owing to the fact that conflicting decisions have been rendered on the question by judges of, the court of common pleas, the petition in error has been allowed directly to the probate court.

John S. Murphy, for plaintiff in error.
Walter T. Logan, for defendant in error.
WHITE, J.

The only question submitted in this case is whether the council of the city was authorized to create the offence of which the accused, Nolte, was convicted.

The ordinance is not made part of the record but it is admitted that the charge is in accord

ance with the ordinance. If it were not so admitted, it must be presumed in the absence of any showing to the contrary in the record. For the authority of the city council in the are referred to section 2108 of the matter, we Revised Statutes. That section, among other things, provides, that the council shall have power "to provide for the punishment of any vagrant, common street beggar, common prostitute, habitual disturber of the peace, known pickpocket, gambler, burglar, thief, watch-stuffer, ball-game player, a person who practices any trick, game or device with intent to swindle, a person who abuses his family, and any suspicious person who cannot give a reasonable account of himself."

the council was authorized to provide, was known One of the classes of persons against whom thieves. The account was found to be of this class. The charge on which he was convicted was that of being a known thief and found in the city of Cincinnati, contrary to the ordinance of the city. No question arises on the evidence, and the proof must be presumed to have been sufficient. That the creation of the offence was authorized by the statute we entertain no doubt. The statute declares that the council shall have power to provide punishment of any known thief. This brings us to the question whether the enactment of the statute is within the power conferred upon the general assembly.

The only limitations to the creation of offences by the legislative power are the guarantees contained in the Bill of Rights, neither of which is infringed by the statute in question. It is a mistake to suppose that offences must be confined to specific acts of commission or omission. A general course of conduct or mode of life which is prejudicial to the public welfare may likewise be prohibited and punished as an offence. Such is the character of the offence in question.

The case of Byers v. Commonwealth, (42 Penn. St. 89), cited and relied upon by counsel in this case, has no direct bearing on the question now under consideration. The question there was whether the Act of March 13, 1862, of the State of Pennsylvania, authorizing the summary conviction, without a jury, of professional thieves, &c., was valid under the constitution of that State. The act under consideration in that case is found in Brightly's Purdon's Dig., vol. 1, p. 346, § 158. The act was held constitutional, and the opinion in the case contains a learned summary of the law of England and of Pennsylvania on the subject.

The case of the People v. McCarthy (45 How. Pr. 97) involved a similar question arising under a statute of New York. The constitutionality of the statute was also upheld in that case.

In the present case no such question arises. The accused, under our law, was entitled to a trial by jury as the punishment of the offence involved imprisonment. Rev. Stats., §§ 1788, 1819. He, however, waived a jury and consented to be tried by the court.

At common law a common scold was indicta

ble; so, also, a common barrator; and by various English statutes summary proceedings were authorized against idlers, vagabonds, rogues and other classes of disorderly persons. See Stephens' Dig. of Crim. L., Art. 193. In the several states in this country similar offences are created. In some of the states it is made an offence to be a common drunkard, a common gambler, a common thief, each state defining the offences according to its own view of public policy. The case of The Commonwealth v. Hopkins, (2 Dana 418), was the prosecution of a person for being a common gambler; of World v. The State, (50 Md. 49), for being a common thief.

In such cases the offence does not consist of particular acts, but in the mode of life, the habits and practices of the accused in respect to the character or traits, which it is the object of the statute creating the offence to suppress.

The order of the probate court discharging the defendant in error from custody is reversed. [This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

MARY FANNING

V.

THE HIBERNIA INSURANCE Co.

November 22, 1881.

1. The plaintiff may, in reply to new matter set up in the answer by way of defense, allege any new matter, not inconsistent with the petition, which in law constitutes an answer to the new matter relied on by the defendant.

2. If the plaintiff relies on a record of a former adjudication of the same matter set up in an answer, as an estoppel, he should plead such former judgment. It is not admissible in evidence under a general or special denial of the new matter contained in the answer.

Error to the District Court of Cuyahoga County.

This case was taken out of its order to be heard with Mary Fanning v. The Hibernia Insurance Co. just reported. That action was to recover on a note and mortgage given for stock in said company, while its promoters were engaged in placing the amount of stock required by its charter, as preliminary to its organization. This action is to recover upon a note executed by said Mary Fanning to said company to pay an assessment upon said stock, made some two years after the company commenced doing business, on account of losses incurred in the Chicago fire. This note, in addition to an assessment of 33 per cent. on the $3,000 of capital stock, included one years interest on the note involved in the case just reported, and was for $1,170. The same defenses were made to the payment of this note, as to the former one of $3,000.

At the time the case was tried, final judgment had been rendered in the former case,. and a petition in error was pending to reverse the same. The record in that case was offered in evidence

on.

in this case without being pleaded, as a bar to the defenses set up in this action. It was admitted against the objection of defendant below. The court charged the jury that the record in that case, was conclusive evidence that there was a consideration for that note, and that if there was no fraud in obtaining the former note, there was none in obtaining the one now sued The trial resulted in a verdict for the plaintiff below, followed by the overruling of a motion for a new trial. Some of the errors assigned are, the overruling of the motion for a new trial, the admitting in evidence the record of the former case, and in charging that it was conclusive in this as to the alleged want of consideration and as to fraud in obtaining it. The bill of exceptions sets out all the evidence. This proceeding is to obtain a reversal of the judgment of the courts below. JOHNSON, J.

The petition was upon a promissory note for the recovery of money only. The answer sets up new matter as defenses, among them, facts showing want of consideration, and fraud in procuring the note. The reply denied each of the allegations contained in the answer.

On the trial, and as a bar to the defenses above stated, the record in the former suit was introduced, and the court charged the jury that it was conclusive upon the defendant, both as to the question of fraud, and want of consideration.

The Code, Sec. 101, provides, that the plaintiff may demur to an answer, or where, as in this case, it contains new matter, "he may reply to such now matter, by denying either generally or specifically each allegation controverted by him, and he may allege *** any new matter, not inconsistent with his petition constituting an answer in law to such new matter." To this reply the defendant may demur. The answer contained new matter by way of defense.

If the former adjudication was a bar to this new matter of defendant, it was new matter, not inconsistent with the petition, which could have been set up by reply.

The defendant could then have demurred. In this way there would have been presented to the court, a question of law. The code therefore furnishes an opportunity to plead the former adjudication. dication. The object of requiring pleadings in writing is to advise the opposite party of the facts constituting their respective claims and defenses. This object is defeated by allowing the record to be offered in evidence without no tice by pleading, that it is relied on, after the defendant had offered in evidence the facts constituting his defense.

The former adjudication is new matter which the code practice requires should be pleaded. It is matter expost facto, and should be specially pleaded so that the court may as matter of law, determine as to its effect. This was the settled rule at common law, wherever there was an opportunity to plead such former adjudication. The code having furnished that opportunity to

plead it, we think the record was inadmissible as
evidence. Vooight v. Winch, 2 B. & Ald. 662.
Brazil v. Isham, 12 N. Y. 9, 17; Pomeroy on
Rem. & Sec. 702; Clink v. Thurston, 47 Col. 21;
Ransom v. Stanberry, 22 Iowa, 334; Phillips v.
Van Shaick, 37 Iowa, 229; 2 Smiths Lead Cases,
Notes 629, 630, 631; Gray v. Massie, 17 Vt. 419;
Lockwood v. Wildman, 13 Ohio, 430.
Judgment reversed.

[This case will appear in 37 0. S.]

Digest of Decisions.

IOWA.

(Supreme Court.)

GATES V. BALLOU AND OTHERS Oct. 21, 1881.

Mechanic's Lien.-One who has an interest in land, not made a party to a proceeding to foreclose a mechanic's lien thereon, cannot be bound by such proceeding; and if the effect will be to cast a cloud upon his title, he may maintain an action to restrain the sale under the lien and show that as to him it is no lien.

The language, "I hereby agree that you shall have a mechanic's lien until the same is paid," used by an owner in a contract for a lien, will not be construed as a waiver of the statute of limitations as to right to enforce such lien.

LAVERENZ, ADм'R, ETC., v. C., R. I. & P. R. Co. Oct. 21, 1881.

Railroad accident-Negligence.-Where a party voluntarily goes upon a railroad track where there is an unobstructed view, and fails, without excuse, to look or listen for danger, he is, as a matter of law, guilty of negligence, and not entitled to recover for damages he may sustain by reason thereof from a passing train. But where the view is obstructed, so it is difficult to know of the approach of the train, or there are complicating circumstances calculated to deceive or throw him off his guard, the question is one for the jury.

Question as to whether deceased plaintiff's intestate was guilty of contributory negligence, held, to have been properly submitted to the jury.

Certain special findings were requested by defendant, to which the jury returned answers that they "did not know" or "could not tell." Held, that as the answers, had they been in favor of the defendant, would not have been inconsistent with the general verdict rendered, the indecisive answers were no ground for reversal.

by the husband, who had authority to so deliver the same and contract for their transportation. After their delivery to the carrier, they were attached in an action against the husband and taken possession of by an officer, and upon the husband going to the office of the carrier to direct a change of place of shipment, he was informed of the attachment, and after such notice had ample time to assert plaintiff's right to the goods. Held, that upon such showing a verdict against the carrier for failure to deliver the goods, pursuant to the contract for their carriage, should be set aside as against evidence.

PENNINGTON V. JONES. Oct. 22, 1881. Growing crops Mortgage.-A mortgage upon crops to be sown or planted, to be valid as against third persons, should at least specify the year or term during which the crops are to be grown.

A chattel mortgage described the property as "about 50 acres of wheat, 20 acres of oats; also 12 acres of barley and 20 acres of corn; also two acres of buckwheat, to be sowd and raised on the land leased of Barber McDowell, and now occupied by said W. A McDowell, lying and being in section seventeen (17,) in township of Ingham, in said Franklin county. * * *"Held, that the description was too indefinite and uncertain, and was not valid as to third persons.

SOUTH CAROLINA.

(Supreme Court.)

HAMMOND V. PORT ROYAL AND AUGUSTA RAILWAY Co. 1881.

1. Estate upon condition-Deed-Intention-Court and Jury. The intention of the parties to a deed, created, must be determined by the court from as to whether an estate upon condition has been the deed itself, and should not be submitted to a jury.

2. Condition subsequent-Breach.-A deed conveyed a strip of land to a railroad company, to them, their successors and assigns forever, "provided always, and this deed is upon the express condition," that a certain system of drainage was to be kept up by the railroad company. Held, that this created a condition subsequent in deed, and voidable by the grantor upon condition broken.

3. Forfeiture-Entry or Claim.-But no action for recovery of the land could be brought by the grantor until he had made entry upon the land after condition broken, or made claim, if entry was impossible.

4. Ibid-Waiver · Intention. Whether the grantor had waived his right to enforce a forfeiture, is a question of intention depending upon the facts, and was properly submitted to the jury.

5. Railroads Public policy.-Public policy does not forbid a railroad corporation from accepting land for its road-bed upon such conditions-conditions reasonable and possible to be performed.