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To recover damages for this injury, suit was progress under the charge and superintendence brought in the court of common pleas and ver- of their own servant and officer. dict and judgment rendered in plaintiff's favor; We do not think it fair to say, under these which judgment was subsequently affirmed in circumstances, that the act of King was wholly the district court.
unauthorized. It is argued on behalf of plaintiff in this court Numerous exceptions were taken at the trial that, upon this state of facts no recovery could
to the action of the court in refusing special be had against the city for the reason that the charges and to the charges given which we do negligent act which caused the injury was not not consider it necessary to review in detail. in any sense the act of the city or of its agents: They are all covered by what we have already It is insisted that King, acting without orders
said; and whatever error may exist in any of from the trustees, upon his own responsibility
them was to the prejudice of the plaintiff below under the direction of certain members of the
and not of the defendant. council, in their individual capacity, was simply Judgment affirmed. a wrong-doer, and that neither he nor those un- [This case will appear in 38 0. S.] der whom he acted could render the city responsible for their tortious doings.
CHARGE TO JURY. We do not think this position tenable. Conceding, for the sake of argument, all that is claim
SUPREME COURT OF OHIO. ed by plaintiff in error upon this point, it is manifest that the wrongful act which caused the
LLOYD V. MOORE. injury was not the digging the ditch, but leaving it unprotected. It is clearly the duty of a municipal corporation, having the control of its streets
April 25, 1882. to keep them in a condition safe for the passage
Where the judge, at defendant's request, gave to the of vehicles and foot passengers using ordinary
jury a certain special charge, in addition to his general
charg , which said special charge was erroneous, and care, at all times during tt night as well as the aft rwards having been requested by the jury to repeat day. This responsibility cannot be avoided by
his charge to them, repeated the general charge,
but declined to, repeat the special charge, there was no showing that the danger was caused, not by the error in refusing to repeat the erroneous instruction. acts of the city's authorized agents, but by mere
Error to the District Court of Scioto County. trespassers or wrong-doers.
Defendants in error brought suit in the Court. We concede where the ground of action is the of Common Pleas of Scioto County against plaintneglect of the corporation to put the streets in re
iff in error upon four promissory notes executed pair, or to remove obstructions therefrom, or to by him payable to the order of Hess & Burke, remedy causes of danger occasioned by the wrong- and by them endorsed and delivered to defendful acts of others, notice of the condition of street, ants in error. Lloyd claimed that there had or what is equivalent to notice, is necessary to been, as between himself and the indorsees, a give to the person injured a right of action
total' failure of consideration, and that although against the corporation. ,(See 2 Dillon $ 789). the notes had been transferred before due they But in the case before us the work was done by were not taken in the usual course of trade nor ,
was and who did not cease to be such public officer evidence offered in the court below, and we are from the mere fact, (if fact it be), that in this not advised what the facts of the transaction instance he was acting without authority. The
may have been. There was, however, evidence ditch having been dug, it then immediately be- tending to show that Hees & Burke were largely came his duty to see that proper precautions indebted to Moore & Welch for purchase money against danger should be taken. More than for the sale of tracts of land which had been conthis, the work was done with the full knowledge, veyed to them and which indebtedness they had if not with the consent of the trustees, who saw secured by a deposit of certain collateral securithe work progressing; and under the direct or- ties. der and supervision of members of council. There was also evidence tending to prove that What other or more complete notice could be on the 18th of November, 1873, Hess had in his given to the city it is dfficult to determine.
possession notes on parties in Sandusky, Ohio, However this may be, we are by no means pre- amounting on their face to $23,735.50, which he pared to say that the work was performed with proposed to get discounted and apply to the payout authority.
ment of what he owed plaintiffs on the land purThe council had provided by ordinance, and chased from them, if they (the plaintiffs) would the trustees by resolution, that this very work stand the discount. But plaintiffs declined, and should be done, and this action had not been re- proposed to take the notes as money, to be credconsidered or rescinded. The trustees simply ited on what Hess owed, if he would submit to refused to carry it out. They sought to shield the discount on the notes, leaving the net themselves from responsibility by doing nothing. amount to be credited for the notes $22,063.80. They did not, at any time, seek to prevent the That this was agreed to by Hess, and the Sanwork, although they bad full knowledge of its dusky notes were accordingly endorsed and trans
intend the digging of all ditches for water-pipe, The bill of exceptions does not contain all the
ferred to plaintiffs, and the $29,000 in collaterals, It is now claimed that there was such an abuse except about two or three thousand dollars in of discretion on the part of the judge as would the notes, were returned to Hess.
warrant a re-trial of the case. Also evidence tending to prove that in Decem- LONGWORTH, J. ber, 1873, at the request of plaintiffs, Hess con
Without doubt it was the duty of the judge at veyed to them 640 acres of land in Kansas; also 160 in Indiana, and his residence in Columbus,
the trial, when he had undertaken to repeat bis the latter subject to a mortgage for $6,000! charge to the jury, to omit no material part of it, These deeds were all absolute on their face, but
and it was defendant's right to insist that the were intended as mortgages to secure plaintiff's special charge, which he claimed to be in his
favor, should, if correct, be read to the jury to for what Hess owed them for the land sold.
There was evidence also in the form of letters gether with the general charge; but whether or from plaintiffs and the depositions of Hess, offer
not this refusal was prejudicial to defendant in ed in behalf of defendant, tending to prove that
such manner as to warrant a new trial, we are
relieved from the necessity of considering, being, the plaintiffs refused to give Hess credit for the
As we are, unanimously of opinion that the amount of the Sandusky notes, and haz never in fact, done so, and that subsequently, in March, special charge was not law.
There was evidence before the jury tending to 1874, it was agreed between plaintiffs and Hess
show that when the notes sued on were trans that plaintiffs could hold said Sandusky notes,
ferred to plaintiffs to be credited upon their claim, or those that they still had, as collateral only. Also evidence in behalf of plaintiffs tending to
they parted with valuable securities in considerprove that in February, 1874, Hess desired to get
ation of the transfer. If this were true, defendback a part of the Sandusky notes, but plaintiffs
ant was not at liberty to rescind the contract, refused to return any part of them unless Hess
since he was not able to place his indorsees in
statu would give other notes in lieu thereof. There
quo. Under such a state of facts his right, upon, Hess, on the 26th of February, 1874, trans
and only right was to insist that the amount of 'ferred to plaintiffs the Lloyd notes now sued on,
the notes should be credited upon his indebted
ness. and some notes against one Thos. T. Yeager, the
If the endorsement was made simply as whole amounting to about $2,400; and the
security for an antecedent debt the rule in Rox. plaintiffs returned to Hegs about $5,000 of the
borough o. Merrick, 6 0. S., 448 would apply, but Bandusky potes for the same, Hess agreeing to
the evidence not being before us, we are in the transfer other notes to make up the amount of
dark as to the true state of the facts. By this the Sandusky notes.
special charge the jury were instructed that the The court charged the jury correctly upon the
plaintiffs were not the holders for value if law of the case and in addition to the general they had broken their contract by refusing to charge gave to them a special charge asked by
credit the amount of the notes upon their claim. plaintiff in error. Some time after the jury had
The error made by the court was in giving retired they cane into court and requested the
this instruction in the first instance, and this
There judge to repeat his charge to them. The court
was prejudicial to the plaintiff alune.
was no error in refusing to repeat it. thereupon read over to the jury the instructions herein before stated, as they were given origi
Judgment affirmed. nally, but omitting the said special charge given
[This case will appear in 38 O. S.] at the request of the defendant. And, at the re- PRACTICE-DEATH OF PARTY DURING quest of one of the jury, read a second time the
PENDENCY OF PROCEEDINGS said instruction in respect to the sufficiency of
IN ERROR. proof as to the knowledge of plaintiffs to defeat a recovery. The defendant, Lloyd, being present
SUPREME COURT OF OHIO. after the court had concluded reading said instructions, inquired of the court if it was not
JOHN D. WILLIAMS proper to read also the said instruction given at the request of his attorney, and requested that
CHARLOTTE ENGLEBRECHT ET AL. the same should be read; to which the court replied that it was not necessary to read it again,
April 18, 1882. and the same was not reud.
A jadgment of reversal is effective notwithstunding the The special charge was as follows:
death of the plaintiff in error during the pendency of “If the jury shall find from the evidence that procedings in error. Such judgment lakes affect, by reHess voluntarily delivered to plaintiffs certain lation, as of the date of the commencement of the pro
ceeding in error; and it is competent for the court, to notes, to be credited on a debt not yet due, but whicb The cause is remanded for a new trial, to order » the same were not so credited, and plaintiffs ro. revivor of the action in the naine of the proper represenfused to so credit them, and subsequently said
tative of the deceased party. notes so delivered were exchanged for the notes Error to the District Court of Scioto County. in controversy, the plaintiffs cannot be said to be Motion to re-instate, e c. the holders of the notes in suit for value.”
At the lust term of this court, a final judgment The jury found for the plaintiffs and judgment was rendered in this case, reversing the judgwas entered upon the verdict. This judgment ment of the district court and remanding the was subsequently afirmed in the district court causa for a new trial.
It is now made to appear that John D. Wil- Edward v. Freeman, 1 P, Wms., 440, 446: 2 liams, plaintiff in error. died during the penden- Williams on Ex., SS 1289, 1261, 1262. Here the cy of the proceedings in error. The object of the only proof relied upon to establish the fact of adpresent motion is to re-instate the case on the vancement are certain declarations of the intes, docket, set aside the judgment of reversal, revive tate made to certain members of his family as to the action in the names of the representatives of his intention or purpose to treat the debts due the deceased plaintiff in error, in order that the him from the son as advancements with referjudgment of reversal may be entered in the ence to the general division of his estate. These name of such representatives.
declarations, giving to them the strongest conJ. W. Bannon and W. A. Hutchins for the struction that they will reasonably bear, are by motion.
no meanis precise and definite as to any complete F. C. Searl and O. F. Moore contra.
consummate act of the intestate whereby he had
divested himself of all right of property in the BY THE COURT.
notes, and thereby excluded himself from the ex. Notwithstanding the death of the plaintiff in
ercise of any further dominion and control over error after the assignment of errors and before the notes or the debts due from the son; and final judgment, the judgment of reversal is valid
without such divestiture and surrender of do and effective.
minion and control of the debts, they could not By relation, the judgment of reversal takes ef- be converted into advancements to the debtor. fect as of the date of the commencement of the
It is not pretended that any of the declarations proceedings in error.
of the deceased offered in evidence in regard to True, the original action must be revived be- his purpose to treat the existing debts of the son fore a new trial can be had in the court below;
as advancements were assented to by the son or but such revivor may be had in the court to
even brought to his knowledge during the life which the cause has been remanded for a new
time of the father. These declarations of the trial. See Black v. Hill, 29 Ohio St. 86, and
father were elicited, it would seem, in conversaForesman v. Hang, 37 Ohio St. 143.
tions had with his other children, and appear to Motion overruled.
have been made more to appease their coniplaints [This case will appear in 38 0. S.)
and apprehensions' in regard to the division of
his estate than anything else. What was said ADVANCEMENT-GIFTS.
by the Supreme Court of Pennsylvania in decid
ing the case of Haverstoch v. Sarback, 1 W. & S., COURT OF APPEALS OF MARYLAND. 290—4 case not unlike the present, in the char
acter of the proof that was offered-applies here HARLEY v. HARLEY.
with entire fitness. That loose declarations of a
parent that he intended an existing debt should 1. An advancement is the giving by anticipation of the
be an advancement, not substantiated by writwhole or a part of what it is supposed the child or per- ing, nor made to the child, nor assented to by son advanced would be entitled to receive on the death of the party making the advancement. It is a pure and ir
him, nor accompanied by any act, are not suffirevocable gift.
cient to destroy a debt secured by a legal instru. 2. LOOSA declarations of a parent that he intended an ment in full force and to change it by way of existing debt should be an advancement, not evidenced by writing, nor inade to the child, nor assented to by him,
gift into an advancement, whether offered by nor accunipanied by any act, are not sufficient to destroy
the son to defeat the recovery of the debt, or by the debt and to change it by way of gift into an advance-, the representation of the parent against the son ment.
to defeat his claim to a distributive share. See, Upon a distribution of assets among the heirs also, Levering v. Ritten house, 4 Whart., 140; at law of D. J. Harley, deceased, questions arose Yundt's Appeal, 13 Penn. St., 575. We shall, as to whether one of the sons (George) had been therefore reverse the order appealed from and advanced by the intestate, and whether such ad remand the cause for further proceedings. vancement should not be brought into hotch pot Reversed and remanded. with the fund. The son, said George, appealed. . ALVEY, J., in delivering the opinion of the
VIRGINIA. court, said: 'An advancement in legal contemplation is simply the giving by anticipation the
SUPREME COURT OF APPEALS. JANUARY T., 1882. whole or a part of what it is supposed the child BACHELDER & COLLINS v. RICHARDSON &o. or party advanced would be entitled to receive
A litigant's pro ratu distributive share in a fand in court, on the death of the party making the advance
under & deoree, Axes the jurisdiotion on appeal; although ment. It does not involve the elements of legal
the original action was for a greater sum than that limiting
the appeal. obligation or future liability on the part of the
This was an appeal from a decree pronounced by the party advanced, but it is a pure and irrevocable Corporation Court of the city of Norfolk, in a suit in gift, and must result from a complete act of the chancery, in which B. M. Bachelyer and! Win. H. Collins, intestate in his lifetime, by which he divests
merchants and partners, trading under the style of
Bachelder & Collins, were plaintiffs and Francis Richard. himself of all property in the subject, though in Bon and Henry C. Percy, truslee, were defendants. The some cases and under some circumstances it may Corporation Court decided against the plaintiffs, and not take effect in possession until after the in
they appealed to this court. The facts on which the testate's death. Clark v. Wilson, 27 M., 700;
point decided is based are suficiently statưd in the oploion of the court.
the defendant, the plaintift may bring his case here to The appellants were the holders of two negotiable reverse a judgment, involving the sum of $5.00. Such a potes, amounting to $520.16, and the appellee was the case is not likely to occur, but it seems to illustrate the holder of three negotiable notes, amounting to $428. point involved. We are, therefore, of opinion the appeal These notes were executed by Jobn W. Munden, and must be dismissed as improvidently allowed. were secured by a deed of trust upon a house and lot in Appeal dismissed. Norfolk county. A sale of the property was made by the trustee; the net proceeds of which amounted to The line which the judges propose to take $556.20. The fund not being sufficient for the payment of all the notes, and a controversy having risen between
with regard to the defence of prisoners is gradthe parties, with respect to its distribution, the appel- ually developing itself. In the case of Regina lants filed their bill in the Corporation Court of Norfolk, v. Marwen, at Chelmsford, in which the prisoner claiming priority of payment upon certain grounds set forth by them, but it necessary to be stated here. The
was not defended by counsel, but made stateappellee did not deny the right of the appellants to par- ments of his own knowledge, Lord Justice Cotton tícipate in the fund. But he insisted upon a pro rata ap- carefully told the jury that they must “not replication to the notes in question. The corporation Court so decided, and at its December term of 1878, en
gard these statements as evidence, but only as tered a decree, allowing the appellants the sum of $286.- suggestions of a possible account of the matter." 70, and to the appellees the sum of $228; the two sumns In Regina v. Jones, at Worcester, Mr Justice being the aggregate of the net proceeds of the sale. From this statement, it will be perceived that the only
Lopez stated that counsel could not be allowed to matter in controversy here, and in the court below, is
give the prisoner's version except as an hypothethe sum of $228 allowed the appellee by the decree of the sis. So far, we have a logical application of the court. The appellants' right to the $286.70 has not been drawn in question. The first matter, therefore, for our
present rules of evidence. But in Regina v. Gerconsideration is with respect to the jurisdiction of this
rish, at Devizes, the Chief Justice allowed the court to hear the case.
prisoner to make a statement after his counsel In a number of cases this court, following the decision
had been heard. It is difficult to base this pro of the Supreme Court of the United States, has held that where the plaintiff, in his bill or declaration, claims ceeding on any existing rule of evidence or money or property of greater amount or value than $500, practice, but the judges apparently allow it in but by the ruling of the court obtains a decree or judge
to banish henceforth from the courts the favorite ment for less, he is entitled to his appeal or writ of error; because, as to him, the matter in controversy is the sum
topic of defending counsel that his client's mouth or amount claimed, and he may, upon a reversal or a new is shut. We are as yet in the dark as to the contrial, obtain a decree or judgment for the whole amount ditions on which the defendant is allowed to 80 claimed. Gage v. Crockett, 27 Gratt., 735; Harman
City of Lynchburg, 33 Gratt., 37; Canipbell' v. Smith, speak. If it is only after his counsel, the priv32 Gratt., 288.
ilege is not of much value; and there seems no Upon examining these cases, it will be found they do not lay down the rule as universal, but as subject to ex
reason why the defendant should not be allowed ceptions and modifications, which must be applied from
to have his say first, his counsel still being fortime to time as new cases arise.
bidden to treat his statements as evidence. The This has been the course pursued by the Supreme Court existing state of affairs is not embarrassing of the United States in dealing with similar questions. Thus it was early laid down by that court, that its juris
to defending counsel. They know that the diction attached where the appeal or writ of error is ap
judges have come to certain decisions, but they plied for by the plaintiff if the damages laid in the declaration exceed the sum of $2,000, although the recovery
half know what those decisions are.- Law Times. might be for a less sum. Cork'v. Woodruff, 5. Cranch 13; Wise v. Columbia Turnpike Company, 7 Cranch;
SUPREME COURT RECORD.
[New cases filed since last report, up to May 2, 1882.] It was, however, afterwards held that in determining the question of jurisdiction, the debt claimed and the amount stated in the declaration must be looked to and
No. 1132. Byron W. Rees v. F. C. Sessions et al. Ernot merely the damages claimed in the prayer for judg
ror to the District Court of Franklin County. Charles ment at its conclusion. Lee v. Watson, 1 Wallace 564.
E. Burr and Converse, Booth & Keating for plaintiff; See also Schader v. Hartford, 3 Otto 241. And in Gray v.
G. G. Collins and W. E. Guerin for defendants. Blanchall, 7. Otto 564, the court still further modifying
1133. Peter Hecker et al. v. City of Cleveland et al. the application of the rule, said, "If the actual amount
Error to the District Court of Cuyahoga County. Grisin dispute did not otherwise appear, they would look to
wold & Starr for plaintiffs; Kain, Sherwood & Bunts for the whole record, for the purpose of determining the
defendants. jurisdiction. Ordinarily, this would be found in the
1134. Edward P. King, Ex'r &c. v. Lilla G. Horr. Er. pleadings. But the court would not necessarily confine
ror to the District Court of Crawford County. Finlay & itself to them. If, taking the whole record together, it
Eaton for plaintiff; Cahill Bros. for defendant, appears there is no jurisdiction, the case must be dismissed. And in Tinstmar v. National Bank, 10 Otto,
SUPREME COURT ASSIGNMENT. 6, Chief Justice Waite said: “We find, on looking into the record, that the case was heard on an agreed statement of facts, in the nature of a special verdict, in which it appeared that the plaintiff claimed of the 'de
May 4th-No. 89. Texas Building Association, No. 2, fendant $8,233.79. The defendant admitted that he owed
of Cincinnati v. Aurora Fire and Marine Insurance Co. of this amount $5,099.59, for which the plaintiff was en
No. 93. Maratta et al. v, Coffin. titled to a judgment. The only controversy was as to May 5th-No. 1137. Robert C. Lindsay v. The State of tbe liability of the appellant for the difference between Ohio. what he admitted to be due and what the plaihtiff May 11th-No. 1067. Wm. McHugh v. The State of claimed. . This, then, is the amount actually in dispute, Ohio, and as it is less than $2,000, we have no jurisdiction.
May 24th-No. 1117. Charles Stoddard v. The State of These authorities seem to be decisive of the present Ohio. No. 1118. Jacob Ridenour v The State of Ohio. case, for, as already stated, the only matter in dispute was the sum of $286, although the plaintiff claimed the
May 25th-No. 111. Bundy v. Ophir Iron Co. No. 112. entire fund in his bill. That this modification of the
Simpson et al. v. Greenfield Building and Savings Associrule is correct, cannot be for a moment questioned. For
ation. otherwise, if the plaintiff claimed a debt of $500 in his May 26th-No. 114. Coffin v. The Greenlees and Rapbill or declaration and received $495, with the consent of som Co.
FOR ORAL ARGUMENT.
Olio Law Journal.
You cited the case of Haslet v. Byles which you say was recently decided by the Supreme Court of Pennsylvania. It may be that the same case
and the same question was before the Supreme COLUMBUS, OHIO,
MAY 11, 1882.
Court of that State before March 2d, 1882, or bas
been since that time, although the latter is THE MANTLE OF HON. GEO. K. NASH. hardly probable. On that date (see The Cen
tral Law Monthly for April, 1882, Vol. III, No. This honorable garment we are informed is to
4, p. 112), the case of Byles v. Hazlett, an action
for damages for medical malpractice in a case descend
where Hazlett had suffered a severe fracture of Wilmington, Ohio. We are not au fait in mat
the leg, was decided in the Supreme Court of ters political, but we do know that Mr. West is that State. In the charge to the jury the court serving his fourth term as Prosecuting Attorney
below said: "The plaintiff
, by his manner on
the stand and his misfortune, has no doubt made of Clinton County; that he is a lawyer of un
inroads upon your sympathies-he certainly has doubted ability and integrity, and is extremely
upon mine. He is an intelligent man, and he popular in the southern counties of the State. appeared to be a candid witness upon the stand, We also know that he has achieved various great so far as the court could observe.” Certainly successes as a prosecutor, among which was the
this charge instead of being condemned, would abatement of various slaughter-house nuisances
he highly approved by the writer of the editorial
on "Malpractice." It is just what he hopes for in his county, which became a stench in the
and commends the Supreme Court for enunciatnostrils of all decent citizens. For his honesty
For his honesty ing as the law governing such cases. But the and fearlessness.in this matter alone, Mr. West Supreme Court say, and in my judgment rightdeserves a high office, for it proves him to be fully, in speaking of this charge, “ that this exneither a coward nor corruptible.
pression of sympathy by the court was error,''
and for this error, and for failure to refer in the THE SMITH SUNDAY LAW. charge, to important evidence in the case, the
judgment for $1,100 in favor of Hazlett was re
versed and a new trial was awarded. It does not The success of this christian scheme has not
seem'probable to me that there could have been been phenomenal in the Capital City.
two cases between parties having the same The proprietors of a beer garden announced names, and involving the same questions recently
decided by the same court so directly against last week that they would sell beer in spite of
each other. So if the case is correctly reported the law or the police, on Sunday, and they did.
in the Central Law Monthly, you will have to The law closed up all other saloons and gardens transfer your commendations from the Supreme and drove the thirsty multitude to the open doors Court to the lower court, and your criticisms and foaming mugs of the defiant Germans who from the lower court to the Supreme Court, and profaned the Sabbath by riotous revellings, and
consign the State of Pennsylvania to the ranks
of those States which still adhere to the old slandered the legal profession by claiming to be
fashioned doctrine of requiring juries to bring acting in obedience to the "advice" of a "law
in their verdicts in accordance with the law and yer.” He would be a pretty lawyer who would the evidence, and not in accordance with their give such counsel even upon grounds of common
sympathies or those of the court. christian decency; or who would give such
Yours Respectfully, counsel unless he was sure of his ability to con
GILBERT H. STEWART. trol the executive branch of public authority;
There is evidently a difference between the refor he must know that the sale of each glass of
port we have of the case referred to and the rebeer or whiskey is a distinct violation of the law,
port as cited by Mr. Stewart. We apprehend and that any officer who properly discharges his the difference to be that his report is but a parduty could ruin the aforesaid beer vendors for tial one, and that the court below went further their one Sunday's proceedings as above. How
than the quoted words and cautioned the jury long will the Capital City allow this insult to go against heeding the sympathy aroused by the unpunished ?
pitiful condition of the plaintiff, notwithstandCOLUMBUS, Ohio, May 7th, 1882.
ing the fact that that condition was directly EDITORS Ohio Law JOURNAL.
brought about by the ignorance of the so-called
surgeon. Be that as it may, however, the fact Gentlemen: In reading your editorial on "Malpractice” in the LAW JOURNAL of this date,
remains that the time is drifting by, wherein I was surprised at the text which you selected as Dr. Bungle can relieve Dr. Blunder of the evil the basis for your note of warning to the doctors. results of his mistakes by simply swearing that