existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act." 1 S. & S. 1; Rev. Stats. § 79.

The remedy by error is a proceeding (Hobbs v. Beckwith, 6 Ohio St. 252), and it has been held that it is a proceeding within Rev. Stats. § 79, which saves pending proceedings when the statute upon which they are founded is repealed. Railroad Co v. Belt, 35 Ohio St. 479. The same language, it will be seen, occurs in the act of 1866; and if the words, pending proceeding, include a pending petition in error, it is difficult to see why the words, cause of proceeding, in the same section, when applied to matters as to which relief may be granted notwithstanding the repeal of the statute on which they are founded, do not include the right to file a petition to reverse a judgment. True, it was held in Westerman v. Westerman, 25 Ohio St. 500; John v. Bridgman, 27 Ohio St. 22, that the act of 1866 did not prevent the application of statutes regulating procedure in an action, to causes pending when the statute was passed, and hence a change by statute in the rule as to the competency of witnesses applied to pending actions, notwithstanding the act of 1866. It is insisted that the principle governs here, and that to shorten the period within which petitions in error may be filed is not to affect the cause of proceeding, within the meaning of that act. But in Railroad Co v. Hine, 25 Ohio St. 629, a different view was adopted. It was there held that by force of the act of 1866, an action was to be governed, as to the time within which it might be brought, by the statute in force when the cause of action accrued. According to the statute in force when suit was brought, the action was not barred, but it was barred according to the statute in force when the cause of action.accrued, and it was held that by force of the act af 1866, the bar was complete. It is impossible to distinguish that case from this, in the particular now under consideration, and other cases construing the act of 1866, support the same view. The State v. Washington Tp., 24 Ohio St. 603; Bode v. Welch, 29 Ohio St. 19; Bergin v. The State, 31 Ohio St. 111. And see Rev. Stats. § 79, note. We hold, therefore, that by force of the act of 1866, this case is governed in this particular by section 523 of the civil code of 1853, and consequently the right to maintain this proceeding in error is not barred.

2. The other question, whether the district court erred in sustaining a demurrer to the answer and cross-petition of the administrator of Francis Shinn, is more easily determined. And we are quite clear that the district court erred. There is no reason why the administrator was not entitled to an order of sale on his answer and cross-petition. His right to obtain an order of sale for the payment of debts, as against the parties to this suit, was wholly unaffected by the statute of limitations; the heirs of Francis Shinn held title to the premises subject to the right of the administrator for such purpose; the widow and heirs of Joseph W. Lafferty had no

House Bill No. 216. To amend section 4848 of the Re. vised Statutes, to read as follows:

Section 4848. Any balance of assessments made for the construction of any such road, remaining in any county treasury, after the payment of all expenses incurred on account of the road, shall be certified by the county auditor into the treasuries of the townships through which the road is located, proportionately to the amount paid for the making of the same in each of the townships, to be expended under the order of the township trustees in repairing the roads; but in counties where the county commissioners are constituted a board of turnpike directors, such unexpended balance shall be transferred to the general improved road repair fund for such county.

H. B. 221. To authorize the Trustees of Union township, Fayette county, to divide such township into four election precincts, instead of two as now divided.

H. B. 247. An act to change the time for holding the second term of the Court of common Pleas in Allen County for the year 1882, to the 22nd day of May instead of the 29th, as fixed by the judges

H. B. 307. An act making appropriations to meet deficiencies.

MARCH 16, 1882. Senate Bill 61. To authorize the Trustees of Goshen township, Clermont County, to purchase a town Hall and levy a tax for that purpose.

S. B. 43. Supplementary to section 3378 of the Revised Statutes, as follows:

Section 3378a. No contract of or for the sale of railroad equipments, rolling stock or other personal property, (to be used in or about the operation of any raflroad) by the terms of which, the purchase money, in whole or in part, is to be paid in the future, and wherein it is stipulated or conditioned that the title to the property so sold shall not vest in the vendee, but shall remain in the vendor until the purchase money shall have been fully paid, shall be valid against creditors or innocent purchasers for value, unless recorded in the office of the Secretary of State, or a copy thereof filed in the office of said Secretary of State, and when said contract is so recorded, or a copy thereof so filed as aforesaid, the title to the property so sold, or contracted to be sold, shall not vest in the vendee, but shall remain in the vendor until the purchase money shall have been fully paid, and euch stipulation or condition shall be and remain valid, notwithstanding the delivery of the property to, and its possession by such vendee.

Section 33786. In any written contract for the renting, leasing or hiring of such property (to be used as aforesaid), it shall be lawful to stipulate or provide for a conditional sale of such property at the termination of such renting, leasing or hiring, and to stipulate or provide that the rental reserved shall, as paid, or when paid in full, be applied to and treated as purchase money; and in such contract it shall be lawful to stipulate or provide that the title to such property shall remain in the lessor or vendor, until the purchase money shall have been fully paid, notwithstanding delivery to and possession by the other party; subject, however, to the requirement as to recording or filing, contained in the foregoing section of this act.

Section 8378c. The Secretary of State, when so requested, and upon being paid the proper fees, shall record any such contract, and shall file in his office a copy of any such contract, when the same shall be delivered to him for that purpose, and for every such copy so filed he shall be entitled to receive one dollar.

Ohio Law Journal.

COLUMBUS, OHIO, : : APRIL 13, 1882.

AS TO RIGHT OF OUTSIDE PARTIES TO EMPLOY COUNSEL IN BEHALF OF THE STATE IN CRIMINAL CASES.

COLUMBUS, O. April 8, 1882.

EDITORS OHIO LAW JOURnal:

As my name is mentioned by G. in your last number as giving an opinion in favor of a ruling made by a judge as to the right of prosecuting witness to employ counsel in a criminal case, I deem it but proper that my position should not be misunderstood, and for this purpose only I address you a few lines.

between us and I did not sustain the court in Vinton in any ruling against this doctrine. O. W. ALDRICH.

HARBORING A THIEF.

BELMONT COMMON PLEAS.

THE STATE OF OHIO

v.

GEORGE W. DOUGLASS.

March 20 & 21, 1882. The defendant was indicted under section 6979 of the Revised Statutes of Ohio. The indictment alleged substantially that, on or about the 10th day of August, 1881, one Frederick Wheatley robbed the store of Wheatley & Outland, of the village of Boston, Belmont county, Ohio, and stole therefrom goods, specified in the indictment, to the value of $101,27; and that afterwards, on or about the 2nd day of September, 1881, the defendant, George W. Douglass, harbored and concealed the said Frederick Wheatley, knowing him to be a titief, and know

Again, "no lawyer can read this section of the statute without concluding that this section contains the only limitation upon the right of outside counsel to appear in cases."

Another correspondent has shown that this section referred to was repealed, and, therefore, the only legal construction that can be given to this language is, that there is now no limitation upon the right of such counsel to appear.

To this view of G. I did dissent, and to this only, and expressly stated that without the statute, "the court might permit the prosecutor to have assistance when it was deemed necessary."

The decision of the court in Bailey v. The State, cited in the last article, would expressly uphold this view, and goes. no further, and even G. in another article of February 10th, says, "that it was not claimed by him that counsel retained by outside parties might demand to appear." This language expressly admits the correctness of the legal principles laid down in my former article, although it would disclaim the construction given by me to his first article, which was based upon the language above quoted, and which seemed to claim such right. If no such right is claimed by G., but only that the court may allow such appearance when it deems it proper and necessary, there is no difference

the indictment.

The evidence showed that the alleged thief was a brother of the senior member of the firm of Wheatley & Outland, and a second cousin of the defendant. It was shown that a robbery had been committed, as charged in the indictment, and testimony was given pointing strongly to Frederick Wheatley as the guilty per

son.

It was proven that on the 2nd of September, Wheatley was arrested at defendant's house, upon a charge of having previously committed some crime in the State of Illinois; and testifendant, when asked as to Wheatley's wheremony was given tending to show that the deabouts by the officers who went to the house to make the arrest, at first denied Wheatley's being there, but afterwards, when assured that the officers would search the premises, induced Wheatley to come out and deliver himself up. It was further shown that, upon a search-warrant subsequently issued, goods of Wheatley & Outland to the value of about $2.50 were found concealed in defendant's house.

The court charged the jury as follows: In order to maintain the indictment, it is essential that the State prove: 1st. That said Fred Wheatley was, at the time of the act charged against the defendant, a thief that is, that he (said Wheatley), had recently before (namely, of Wheatley and Outland, the owners that time stolen the personal goods of another named in the indictment), of the value of $35, or over, and that Fred Wheatley was, at that time, liable to arrest, indictment and punishment for the crime of larceny. If said Fred Wheatley stole the goods of another, and was guilty of larceny-that is, if he took and carried away the goods of another without consent of the owner and without claim or color of right,

with intent to deprive the owner of them, and to appropriate them to his own use, and the goods were of the value of $35 and upwards, then said Wheatley was a thief within the meaning of the statute.

2nd. The defendant must, at the time, have known that Fred Wheatley was such thief, and that he was subject to, and in danger of arrest and punishment for said crime of larceny named in the indictment, namely, the goods of Wheatley & Outland.

3d. That the defendant with such knowledge, concealed or harbored said Fred Wheatley, for the purpose and with the intent to prevent his arrest and punishment for the crime.

Defendant is presumed to be innocent until his guilt is proved beyond a reasonable doubt, and each and all of the ingredients of the crime charged against him must be so proved before he can be convicted.

If the evidence proves that a larceny was committed at the store of Wheatley & Outland, and proves that Fred Wheatley was in possession of the stolen goods soon after the larceny, such possession is to be considered by the jury in connection with other evidence of the conduct of said Fred Wheatley, in relation to said goods, for the purpose of ascertaining whether such possession was an innocent or guilty possession. It is said that possession of goods stolen, recently after the theft, affords a strong presumption of guilt; but there is no rule of law that such possession is, of itself, sufficient proof of guilt. It is for the jury to determine the effect of such possession, upon a consideration of all the testimony in the case.

If Fred Wheatley stole only a part of the goods named in the indictment, and not the whole; or if the goods stolen were of less value than $35, then he could not be convicted of grand larceny, and the defendant in this case can not be convicted, even if proved in other respects guilty. But if a quantity of goods were stolen from Wheatley & Outland by one act of burglary and larceny, as alleged, and part of these goods were soon afterward found in possession of Fred Wheatley, the fact of such possession of a part will be considered by the jury as evidence tending to prove that Fred Wheatley stole the whole of the goods.

You will carefully examine all the testimony in the case, and decide whether each and all of the essential, as before stated, of the crime have been proved.

Did defendant harbor and conceal Fred Wheatley-did defendant knowingly and intentionally give him shelter, refuge, concealment or protection from detection or arrest? Was Fred Wheatley, at the time, a thief, subject to arrest for having stolen said property of Wheatley and Outland worth $35 and more, and did defendant at the time know that Fred Wheatley was such thief and guilty of that larceny? If all this has been proved so as to remove all reasonable doubt, it is your duty to find a verdict of

guilty. If not so proved, your verdict must be not guilty.

JUDGE ST. CLAIR KELLY, on the bench.

A. H. Mitchell, Prosecuting Attorney, for the State.

S. W. Emerson, W. S. Kennon and R. E. Chambers, for the defense. Verdict of Not Guilty.

EVIDENCE IN CRIMINAL TRIAL-GENERAL REPUTATION.

SUPREME COURT OF OHIO.

HENRY H. UPTHEGROVE

V.

THE STATE OF OHIO.

March 21, 1882.

In a trial upon an indictment charging the prisonét with shooting at the prosecuting witness, with malicious intent to kill, where evidence has been introduced tending to show that the act charged was committed by the accused at a time when he was being actually assaulted by the prosecuting witness with a dangerous weapon, it is competent for the defense to prove that the general reputation of the prosecuting witness was that of a violent and dangerous man, and that such general reputation was known to the accused at the time of the assault, as tending to support the plea of self defense.

Error to the Court of Common Pleas of Paulding County.

At the October term, 1881, of the Court of Common Pleas of Paulding County, the plaintiff in error was tried upon an indictment for shooting at one Lewis Talbot with intent to kill.

The State having rested its case, evidence was introduced by the accused tending to show that at the time charged, Talbot attacked him and knocked him down with a club, and was about to strike him again. That he, the accused, fearing death or great bodily harm at the hands of his assailant shot at him, with the sole purpose of self-defense and without malicious intent. At this stage of the case the accused proposed to prove, by a competent witness, that the general reputation of Talbot for peace and quietness was bad and that his character was that of a dangerous and violent man, and that this was known to the accused at the time. To the introduction of this testimony, objection was made and sustained by the court, and exception was noted. This ruling of the court is now before us for review by the present proceeding in error.

Geo. K. Nash for defendant in error.

I. N. Alexander and De Witt & Freshwater for plaintiff in error.

LONGWORTH, J..

As a general rule in trials for homicide, or felonious assault, the character of the person assaulted or killed cannot be shown, for the reason that the law holds it to be as criminal to assault a bad and violent man as a good and peaceable one. But to this rule there is an exception in cases where the plea is self-defense and there is evidence tending to show that the actual or at

tempted killing took place while the accused was being actually assaulted. In such case, the intent being an essential element of the crime, evidence is competent to show what the accused person really believed at the time, and what reasons he had for entertaining such belief; and it will not affect the competency of the evidence that such belief turns out to have been a mistaken one. It is no defense to a charge of this character to show that the deceased or prosecuting witness was a wicked or violent man, but the fact that the accused believed him to be so, is calculated to throw light on his actual intent as rendering his act criminal or excusable. A club may or may not be a deadly instrument, and I can well understand that when in the hands of a man known to be of blood-thirsty disposition, a reasonable ground to fear great bodily harm. might exist, whereas when used under the same circumstances by an irritated, but ordinarily peaceable man, no such apprehension would be justifiable.

The rule allowing evidence of character or general reputation in such cases, brought home to the knowledge of the prisoner, is founded on the clearest principles of reason and common sense, and is amply sustained by authority,

In 1 Greenl. Ev. § 101, the learned author lays down the broad principle as follows: "Thus where the question is whether the party acted prudently, wisely or in good faith, the information on which he acted, whether true or false, is original and material evidence." * * * * "Upon the same principle it is considered that evidence of general reputation, reputed ownership, public rumor, general notoriety and the like, though composed of the speech of third persons, not under oath, is original evidence and not hearsay." To illustrate the proposition he cites with approval, the case of People v. Shea, 8 Cal. 538, in which it was held that where the accused claimed to have procured a pistol to defend himself against the attack of another, upon the ground of certain information received from others, such information became an criginal fact proper to be proved in the case.

It is said in 2 Bishop Crim. Proced. § 614: "Though, as a general rule, even on an indictment for murder, the character of the deceased as being quarrelsome, and the like, can have no effect, however ill it may be, to excuse the act of the defendant, and, therefore, it should not be received in evidence when brought forward by him; yet, if in the particular case as presented before the court, as for instance, where there is a question whether the homicide was committed from malice or was prompted by the instinct of self-preservation, and there is no direct testimony as to what was done, but the whole or the principle evidence is circumstantial-then it may be proper to permit the defendant to give in evidence what he knew of the character of the person whose life he took; for so an act which would otherwise seem unjustifiable, or premeditatedly malicious, might appear more

probably to have been done in self-defense or in a quarrel."

The subject is carefully discussed in Wharton Crim. Ev. § 68 to § 84 inclusive. See also 14 Am. Law Review, 579.

The rule as announced by us was declared to be the law in the following cases, in most of which the question arose in substantially the same manner as in the case at bar. Nichols v. People, 30 Hun, 165. Stephens v. State, 1 Tex. Ap. 591. People v. Murray, 10 Cal. 309. People v. Anderson, 39 Ibid. 703. State v. Bryant, 55 Mo. 75.

State v. Matthews et al., 78 N. C. 523.
Eiland v. State, 52 Ala. 323.
Monroe v. State, 5 Ga. 85.
Horbach v. State, 43 Tex. 242.
People v. Lamb, 2 Keyes, 371.

.

As far as I am aware the doctrine has never been denied except in Commonwealth v. York, 9 Met. 93 and in Commonwealth v. Hilliard, 2 Gray, 294, in which evidence of reputation was not admitted under a like state of facts. These decisions, although entitled to the greatest respect on account of the eminence of the distinguished judges who announced them, are at variance with the whole current of decision in other States and with the views of the text writers who have treated of the subject, and do not appear to us to be supported by the sound com, mon-sense logic which underlies the whole law of evidence.

Judgment reversed.

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

RAILROAD-FELLOW SERVANT-NEGLIGENCE-RELATION OF SUPERIOR AND SUBORDINATE.

SUPREME COURT OF OHIO.

THE PITTSBURGH, CINCINNATI & ST. LOUIS RAILWAY COMPANY

ข.

ALBERT M. RANNEY.

March 21,

1882.

1. Where, by the rules of a railroad company, brakemen on a train of cars are placed under the control and direction of the conductor, the relation of superior and subordinate, asbetween the engineer and a brakman, is notcreated by a rule of the company requiring the engineer to give certain signals for setting or relieving brakes, which also requires brakemen to work the brakes accordingly.

2. In such case, the engineer and brakeman are fellowservants in a common eniployment; and the company is not liable to either for an injury resulting from the negligence of the other. Railway v. Lewis, 33 Ohio St. 196, approved.

Error to the District Court of Franklin County.

The original action was brought by defendant in error against plaintiff in error to recover damages for personal injuries resulting from the carelessness of defendant's engineer under the following circumstances:

On the 2d of August, 1871, the plaintiff below

was employed as a brakeman on a train of freight cars of the defendant running from Columbus, Ohio, to Dennison, Ohio, under the management of a conductor, an engineer, a fireman and two brakemen. On approaching Pataskala station, the train was moving at the speed of about fifteen miles per hour when a flag signal from the station was given to slow the train for orders, whereupon the engineer, by a single blast of the locomotive whistle signaled the application of brakes by the brakemen and thereby the speed of the train was reduced to six or eight miles per hour when opposite the station house. While moving at this rate the engineer received dispatches from the station agent, and also orders to proceed without stopping at the station, whereupon, by two blasts of the whistle the engineer signaled the removal of the brakes by the brakemen. While the plaintiff, in obedience to the signal, was engaged in removing brakes and before a reasonable time for the removal had elapsed, the engineer applied steam to the engine so violently as to break and separate the train at the coupling of the cars where the plaintiff was engaged in removing brakes, whereby the plaintiff was thrown from his feet and fell between the cars and was thereby very seriously injured, so that it became necessary to amputate his left leg above the knee and three toes from the right foot.

In stating his cause of action, the plaintiff alleged in the petition, among other things, the following:

"This plaintiff states that it then and there became the duty of this plaintiff, when on said train of cars as brakeman as aforesaid, to obey and carry out in a prompt and reasonable manner, all orders or commands given to him in any manner by the engineer, then and there handling, operating and controlling the locomotive attached to said train of cars, and hauling the same from Columbus to Dennison, as aforesaid, in reference to putting on or letting off the brakes attached to the cars, making up and forming said train of cars so hauled and moved by said locomotive, and that in said employment of brakeman on said train he was under the com

mand and order of said engineer, and therefore compelled to obey the orders and commands given by said engineer to him in reference to using said brakes in the starting or stopping said train of cars, and as above stated in said operating, hauling, and moving said locomotive and train of cars attached thereto, said engineer was in all respects the superior of this plaintiff, and it was his duty to give orders and commands to plaintiff when on said train of cars, in reference to the time and place, and under what circumstances said brakes should be applied to the stopping or impeding the speed of said train, and when the same should be let off or loosened in order that the train might be enabled to move at a greater rate of speed."

"The plaintiff further says that said injuries so inflicted upon him without any fault, neglect, or carelessness upon his part, and whilst

were

he was in the proper discharge of his duties as a brakeman on said train of cars aforesaid, in an ordinary, careful and prudent manner, and plaintiff avers that said injuries were so inflicted upon him as herein before stated, by reason of the negligence, default, and want of proper care and caution, and by reason of the rashness, negligence and carelessness of the said engineer, who had charge of the said locomotive, its movements, management and control as aforesaid, and who gave said order and commands to plaintiff, and the said injuries were caused by the said engineer aforesaid, by his sudden and rapid starting of said locomotive and cars in motion, without signal or warning to plaintiff or other employes, and without the said engineer waiting a sufficient or reasonable time to enable plaintiff to obey and carry out his said order or command to let off or loosen brakes as aforesaid; in all which, said engineer was guilty of the most grossly negligent, improper, rash and careless conduct which, as aforesaid, was the sole cause of the infliction of said injuries upon plaintiff hereinbefore stated."

The defendant, by its answer, denied that the engineer was guilty of carelessness or negligence as charged in the petition, and also, "that in virtue of said employment he (plaintiff) thereby became, and was in fact, subject to the orders and control and direction of the engineer of said freight train, or that said engineer thereby became, and was in fact, in all respects his superior upon said train, whose orders and commands he was in all respects bound to obey. On the contrary thereof, the defendant avers that said train was on said day, under the charge and control of a conductor, who was, as such conductor, the superior of both said engineer and brakeman, and whose orders and commands both said engisaid common service and in subordination to neer and brakeman were alike bound to obey in said superior servant of said defendant."

To this answer the plaintiff replied as follows: and connected with said train of cars mentioned "That this plaintiff admits that there was on superior of plaintiff, and in reference to the time in plaintiff's petition, a conductor who was the of starting said train at stations where it stopplaintiff says that in all respects as to the startped, was the superior of said engineer, but ing, stopping, controlling and movements of said engineer and conductor were, in all respects, said engine and the cars attached thereto, both the superiors of plaintiff, and both were the responsible parties in charge of said train as to said plaintiff and said railway company."

On the trial in the common pleas, a verdict and judgment were rendered for the plaintiff. A bill of exceptions containing all the testimony and the charge of the court was made part of the record. The judgment of the common pleas was affirmed in the district court, and this proceeding is prosecuted by the railroad company to reverse both judgments.