Burdick v. Cheadle. tomers, of caring for their safety. And while such persons may reasona bly expect the exercise of care for their safety from the person who invites them, they have no right to expect like care from his landlord, with whom they are not in privity. Hence, it is well stated by Shearman and Redfield, in their work on Negligence (section 503), that the guests or customers of the tenant must seek redress for injuries, caused by defects in the premises, from the tenant and not from the landlord, even though the defects existed when the lease was made; for if they had not entered the premises at the request of the tenant, or under his license, they would not have suffered injury. To what extent the tenant might have a remedy over against his landlord, where fraud was practiced in the letting, or where the defect resulted from want of repairs which the landlord engaged to make, we are not now called upon to decide. It is also claimed that Cheadle's knowledge of the use to which the lessees intended to put the room, and of the fact that the cornices, shelving, and fixtures were insecurely fastened to the wall of the building at the time they were constructed, is sufficient to render him liable to the plaintiff for the injuries received by him. It will be observed that there is no complaint as to the manner in which the building itself was constructed, and also, that the noxious fixtures were put in the buildings in pursuance of the contract of lease. The fact that Cheadle had agreed with the lessees to contruct the fixtures in a manner safe and proper for the sale of dry-goods and groce ries, and the fact of his failure to perform his contract, are not elements in the plaintiff's right to recover. The plaintiff had no interest in that contract, or in the breach of it. The only question before us now is Was Cheadle's neglect or failure to make the fixtures secure and safe, knowing that the room was intended to be used as a place of resort for the customers of the tenants, a breach of any duty which he owed to such customers? If so, a like duty to them would have been neglected, if any other person, with like knowledge, had carelessly put up the fixtures; and it would hardly be contended that if a carpenter, who had no interest in the premises, had been such other person, a right of action would have accrued against him and in favor of the plaintiff. We have already stated that Cheadle, by reason of his ownership of the room, owed no duty to the plaintiff, which was violated by mere carelessness in the construction or fastening of these fixtures; nor do we think that a legal duty, which would have been violated by neglect to exercise ordinary care, was imposed upon him by his knowledge that the room was to be kept open to the customers of the tenants. State v. Lymus. What would have been the responsibility of Cheadle, either civilly or criminally, if these fixtures had been intended by him as a trap or snare for the customers of the tenant, or if he had been guilty of such gross negligence as would show an utter disregard for the lives or safety of such customers, are questions not presented on his record. There is no averment of a design on the part of the defendant to injure such customers. That such injury was within the range of possibility is clear enough—it took place; but in the absence of averment, we cannot say that danger was so imminent as to indicate recklessness on the part of defendant. Indeed, it is difficult to conceive how an injury to customers could result from ordinary shelving, however carelessly constructed and fastened. For aught that appears in this record, these fixtures may have been in use for years, not only without injury, but without suspicion of possible injury to such customers. The averments that those shelvings were carelessly and insecurely fastened to the walls of the store-room and that Cheadle had knowledge of such fact, is by no means equivalent to an averment that he had reasonable grounds for apprehending that customers in the store-room would be in danger of injury therefrom. Judgment affirmed. WELCH, C. J., WHITE, REX, and GILMORE, JJ., concurred. STATE V. LYMUS. (26 Ohio St. 400.) Larceny - dog not subject of. Under the criminal law of Ohio, a dog is not the subject of larceny, and, therefore, an indictment charging that the defendant broke and entered a stable, in the night season, with intent to steal a dog, is not a good indictment for burglary.* XCEPTIONS of the prosecuting attorney to the ruling of the Court of Common Pleas of Logan county. The facts necessary to understand the ruling excepted to, are stated in the opinion of the court. See acc. Ward v. State, 17 Am. Rep. 31 (48 Ala. 161); but see Harrington v. Miles 15 id. 355 (11 Kans. 480) and note.-REP. State v. Lymus. Duncan Dow, prosecuting attorney, for plaintiff in error. Wm. Lawrence, Joseph H. Lawrence, and E. D. Hunt, for defendant in error. REX, J. The defendant was indicted at the March term, 1872, at the Court of Common Pleas of Logan county, for burglary. The burglary consisted of breaking and entering a stable in the night season, with intent to steal property of value contained therein, to wit, a dog found therein, the property of the owner of the stable, of the value of twenty-five dollars. The defendant moved to quash the indictment on the ground that it did not charge him with the commission of an offense which was punishable by the criminal laws of this State. The court sustained the motion, and ordered the defendant to be discharged, holding "that there is no law authorizing the indictment, and that it does not charge a crime, offense, or misdemeanor." The prosecuting attorney excepted to the ruling and decision of the court, and presented a bill of exceptions, embodying the indictment, motion, ruling, and decision of the court, and the exceptions taken thereto, which was signed and sealed by the court, and made part of the record in the case. The only question presented by the exception is: Is the stealing of a dog a crime in this State? The property intended to be stolen by the burglar must be property of which a larceny may be committed. We have no statute that, in express terms, declares a dog to be the subject of larceny; but it is claimed that inasmuch as the right of property in dogs is protected by civil remedies, and as a recent statute of this State requires them to be listed for taxation, they are property, and therefore properly the subjects of larceny. We do not think so. Neither the fact that the right of property in dogs is protected in this State by civil remedies, nor the fact that recent legislation requires them to be listed for taxation, have the effect of enlarging the operation of the statutes defining and punishing larceny. At the common law, although it was not a crime to steal a dog, yet it was such an invasion of property as might amount to a civil injury, and be redressed by a civil action. 2 Chit. Black. 393, 394; 1 Bish. Cr. Law, 1080. In describing the property of which a larceny, either grand or petit, may be committed, the statutes of this State use the words "goods and Gregory v. State. chattels." These words at the common law have a settled and welldefined meaning, and when used in statutes defining larceny, are to be understood as meaning such goods and chattels as were esteemed at the common law to be the subjects of larceny. As dogs, at the common law, were held not to be the subjects of larceny, they are not included in the words "goods and chattels," as used in the statutes referred to. Bonds, bills, notes, etc., are goods and chattels, and yet, as they were held not to be the subjects of larceny at common law, it was deemed necessary to so enlarge the larceny statutes as to declare the stealing or malicious destruction of them punishable in the same manner and to the same extent as the larceny of money or other goods and chattels of the same value. So with dogs. It will be time enough for the courts to say that a dog is the subject of larceny when the law-making power of the State has so declared. "Constructive crimes are odious and dangerous." Findlay v. Bean, & Serg. & Rawle, 571. We are therefore of opinion that the Court of Common Pleas did not err in the ruling and decision excepted to. Exceptions overruled. WHITE and MCILVAINE, JJ., concurred. WELCH, C. J., and GIL MORE, J., dissented. GREGORY V. STATE. (26 Ohio St. 510.) Forgery-what is. Where A, for the purpose of defrauding B, procured C, an innocent party, to sign the name of B to a promissory note, by falsely representing that C was authorized by B so to do, held, that A was guilty of forgery. MOTION [OTION for the allowance of a writ of error to the Court of Common Pleas of Franklin county. The plaintiff in error was indicted and convicted, under section 22 of the Crimes Act, as amended by the act of March 24, 1865 (S. and S. 264), for uttering and publishing as true and genuine a certain false, forged, and counterfeited promissory note for the payment of $300, knowing Gregory v. State. the same to be false, forged, and counterfeited, with intent to defraud a certain person named in the indictment. The note purported to have been made by Daniel Bevis, payable to the order of E. W. Phelps four months after date, or sooner, if made out of the sale of E. W. Phelps' harvest and saw-sharpener; was dated June 13, 1874, and indorsed " E. W. Phelps." On the trial, evidence was given tending to prove that, at the date of the note, negotiations were pending between the plaintiff in error and Daniel Bevis, who resides in Prospect township, Marion county, in this State, which resulted in Bevis agreeing to become agent for the sale of the machine above named, in certain townships of Marion and Union counties, to complete which a contract was to be signed in duplicate by Bevis; but as he was unable to write his name, his daughter Rebecca Jane was called, and directed to sign his name to the contract for him; that while Rebecca Jane was at the table to sign the contract for her father, Miles Gregory, a brother of the plaintiff in error, engaged Mr. Bevis in the inspection of, and conversation about, some pictures that were hanging on the wall at the side of the room opposite that at which the writing was being done, and after she had signed the contract, the plaintiff in error produced the note set out in the indictment, and requested her to sign her father's name to it, saying that it was agreement between her father and himself; " that she signed it, as requested by the plaintiff in error, without further inquiry; and that the name of Daniel Bevis was signed to the note by his daughter, without his authority, knowledge, or consent. - 66 a little After the close of the argument, the court charged the jury, among the other instructions given, as follows: "In this case it is admitted that the name of Bevis was written on the note by Miss Bevis, the daughter of Bevis (Bevis not being able to write his name, as he testifies). Now, if you are satisfied beyond a reasonable doubt that Bevis and the defendant had agreed in regard to the papers Bevis was to sign to complete the negotiation in hand between them - that a promissory note was not one of the papers Bevis had agreed to sign, that it was not understood by him that he was to sign, and he did not intend to sign, a promissory note, all of which was known to the defendant; that Bevis being unable to write his name, his daughter was called on to act for him in signing such papers as he understood and agreed he would sign - then, and in such case, and to that extent, she was the agent of Bevis, and when she had written his name to those papers, her agency for him ceased. And if you shall further find that the defendant, without the knowledge and consent of Bevis, and with intent to defraud, directed and procured her |