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character or in the circumstances, to indicate that the slide in the land would not have occurred as it did if they had not been there. The additional weight which they imposed cannot reasonably be supposed to have contributed materially to the giving away of the soil.

The case of Gilmore Driscoll, (122 Mass. 199), relied upon by the defendant fully supports the verdict in this case, and would have warranted the jury in allowing the damages to the improvements as well as to the land, where the plaintiff is not chargeable with negligence in making them. On page 205, refering to the case of Foley v. Wyeth, it is said, "that the right of support from adjoining soil for land in its natural state stands on natural justice, and is essential to the protection and enjoyment of property in the soil, and is a right of property which passes with the soil without any grant for the purpose. 'It is a necessary consequence from this principle, that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavation of an adjoining tract, the owner has a legal remedy in an action at law against the party by whom the work has been done and the mischief thereby occasioned. This does not depend upon negligence or unskilfulness, but upon the violation of a right of property which has been invaded and disturbed. This unqualified rule is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures, for an injury to buildings, which is unavoidably incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on adjoining land, an action can only be maintained when a want of due care or skill, or positive negligence, has contributed to produce it.""

It is upon this principle that the City of Cincinnati v Penny (21 Ohio S. 499), was decided. The city in that case was held exempt from liability for damages to buildings, because it was free from negligence in making the excavation. The same rule of liability from want of proper care and skill is held in City of Quincy Jones, 76 Ill. 232.

The evidence in this case would have warranted the jury in finding that the city, failed to exercise such care and skill in mak ing the avenue in question; and hence the judgment of the court of common pleas ought not to have been reversed.

Judgment of the district court reversed; and that of the common pleas affirmed.

LONGWORTH J. did not sit in the case.
[This case will appear in 38 O. S.]

STREET ASSESSMENT-FAILURE TO PERFORM CONTRACT-INJUNCTION ΤΟ

ENJOIN COLLECTION.

SUPREME COURT OF OHIO.

NELSON B. STONE,

V.

HENRY C. VIELE.

June 20, 1882.

Where a contractor for paving a street has failed to perform his contract, so that there is "a substantial defect in the improvement," within the meaning of Revised Statutes, § 2289, and an assessment against the abutting lots has been placed on the tax duplicate, and the county treasurer is taking the necessary steps to sell such lots, under authority of the duplicate, the owners of such property may, in an action against the the treasurer and the municipal corporation, enjoin such proceeding, unless it appear that it would be inequitable to do so. Secs. 1777, 1778, Rev. Stats., have no application in such case.

Error to the District Court of Summit County. On December 20, 1881, Nelson B. Stone com menced an action in the Court of Common Pleas of Summit County, against Henry C. Viele, treasurer of that county. The cause was appealed to the district court, where a demurrer to the petition was sustained on the ground that sufficient facts were not set forth to constitute a cause of action, and the action was dismissed by the court. The question arising on the petition in error filed by Stone in this court is, therefore, whether the petition of Stone filed in the court below, contains facts sufficient to constitute a cause of action against Viele.

The action was brought by the plaintiff in his own behalf and in behalf of other designated persons and it is stated in substance in the petition that the following are the facts: The plaintiff and the persons so named are owners of lots abutting on East Market Street, between the original west line of the corporation of Middlebury and the east line of High Street, in Akron, which is a city of the third grade of the second class. On June 27th, 1881, the city council having determined to pave, gutter and curb with stone the part of East Market Street above mentioned, to the width of thirty feet, and having taken the proper preliminary steps, assessed in due form upon the abutting lots,three dollars and sixty-two and one-half cents on each front foot thereof, being the estimated cost of the work and materials, payable in five annual installments, and, under appropriate resolutions, the council authorized the city to and it did issue its bonds, and the proceeds thereof, $40,854.56, were placed in the hands of the defendant, as treasurer, for the purpose of paying for the improvement. Notice having been given, the bid of the Austin Flag Stone Company was accepted, and on August 16th, 1881, a contract was entered into in due form, between the city and the company,

by which the company agreed to furnish the material and do the work according to the plans and specifications, and to the acceptance of the street committee and the civil engineer, at specified prices.

The contract contained, among others, the following stipulation: "The party of the second part further covenants and agrees that all of said material shall be of the best of their several kinds and qualities, and that all of said work shall be performed in a thorough and workmanlike manner, and that all of said work, labor and materials shall be subjected to the inspection and approval of the city civil engineer, and in case any of such material and work shall be rejected by the said engineer, as defective or unsuitable, then the said material shall be removed and replaced with other materials, and the said work shall be taken down and done anew, to the satisfaction and approval of the said city engineer, at the cost and expense of the said party of the second part."

The terms of the contract as to work and material were not complied with, and the repeated protest of the civil engineer, and his orders that portions of the pavement should be taken up and relaid, were disregarded. The agents of the company, after laying one hundred feet of the pavement, informed the civil engineer and city council that the company did not intend to construct the pavement in accordance with the terms, conditions or specifications of the contract; and with respect to that part of the work, it is alleged that the pavement was "comparatively worthless." It is also alleged that at this point, the committee on streets entered into a parol contract with the company for the construction, by the company, of a pavement of an entirely different character, and of greatly inferior quality to the one contracted for originally; and that, under this agreement, two thousand feet of pavement have been constructed, the same being" greatly inferior to and in no wise corresponding with the one contracted for by the said city council." Against all this action, the plaintiff and those for whom he sues have repeatedly protested to the company and the city council. No part of the remaining portion of the work has been completed.

The plaintiff further avers that the clerk of the city has certified the assessment to the county auditor, who has placed the same on the tax duplicate for collection by the defendant in the usual mode. The plaintiff and those in interest with him are ready to pay and have tendered all taxes due on their lots, but they are unwilling to pay this assessment or any part of it. They, therefore, pray that the defendant, as treasurer, may be restrained from proceeding to collect the assessment.

HALL V. WATERS, E. W. STUART, and W. W. BOYNTON, for plaintiff in error.

C. S. COBBS, and E. P. GREEN, for defendant

error.

OKEY, C. J.

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a remedy, the defendant insists that relief should have been sought by requesting the city solicitor to bring suit (R. S. § 1777), and that on his failure to comply with the request, there would have been a right of action at the suit of the plaintiff (R. S. 1778). But these sections have no application. Section 550 of the municipal code of 1869, as amended in the revision (R. S. § 2289), provides that in an action by the city (R. S. §§ 2286, 2294, 2303), to enforce an assessment, "a substantial defect in the construction of the improvement shall be a complete defense." Doubtless the same rule would apply in a suit by the treasurer to collect the assessment. (77 Ohio L. 13; R. S. §§ 1102, 1103.) But a treasurer may collect taxes or assessments by distraining goods and chattels (R. S. § 1095), or he may sell the land upon which taxes or assessments have been levied, the duplicate having the force of an execution, (R. S. § 2870); and the latter, it is fair to say from the averments of this petition, was the mode intended to be pursued by this defendant. Where the proceeding is by distraint, or the treasurer is proceeding to sell under the authority conferred by the duplicate, the provision of section 2289, above quoted, will not in terms apply; but by confining it to actions brought by the city or the treasurer, we would place upon the provision a construction which is wholly unwarranted. Such a construction would enable the city and treasurer to render the provision wholly nugatory. We are satisfied that whether a question arises upon that provision at law or in equity, the rule ought to be the same (31 Ohio St. 450), and that where the treasurer, as here, is enforcing an assessment of the character claimed, without suit, he may be restrained. True, it is a well known maxim, that he who seeks equity must do equity; but we are unable to say, looking to the averments of this petition, and giving to them the liberal construction required (R. S. § 5096,) that relief should be denied by the application of that rule.

It is urged that the improvement contemplated in the proceedings of council, and contracted for between the city and the company, was entirely abandoned, and hence that the assessment is illegal and may be enjoined. (R. S. Pt. 3, Tit. 1, Div. 7, ch. 13.). No doubt an assessment not based on proper preliminary steps is illegal. (R. S. § 2264 et seq.; Folz v., Cincinnati, 2 Handy, 261. And where proceedings for an improvement are abandoned, and a contract for a new and wholly different improvement is substituted for the former contract, without the proper preliminary steps, an assessment against abutting lots, to pay the cost of such new improvement, would be equally illegal. Whether the petition presents such a case, we need not now determine.

We are of opinion that the petition is sufficient, and that the district court erred in susintaining a demurrer to it, and in dismissing the

Admitting that the plaintiff was not without

action. The treasurer was a necessary party, and as to h m a cause of action was stated. But we are also of opinion that it is the duty of

the court to require the city to be made a party, and that a failure to comply with such order would be ground for dismissing the action. (R. S. §§ 5013, 5314.) The ground upon which we reverse the judgment does not relate to the legality of the assessment. We assume for this purpose that it was not illegal. The question finally to be determined on this branch of the case is whether there was such a departure from the contract in the performance of the work, as to afford ground of relief against the enforcement of the assessment, and upon that question the city is plainly interested and should be heard.

We purposely abstain from laying down any rule by which to determine what is a "substantial defect" within the meaning of section 2289, or what will constitute an abandonment of the preliminary steps and the contract for the construction of the work, and the substitution of a new contract. These matters can be more properly considered in a case like this, when all the facts are ascertained.

Judgment reversed.

[This case will appear in 38 O. S.]

CRIMINAL LAW-AVERMENT IN INDICTMENT IN THE WORDS OF THE STATUTE SUFFICIENT.

SUPREME COURT OF OHIO.

RIDENOUR V. THE STATE.

June 20, 1882.

An indictment for shooting with intent to maim is not defective for want of averment as to what member or members of the body the accused intended to injure or disable. If in the words of the statute it is sufficient.

2. Where one shot another in the trunk of the body and the result was to produce paralysis of a leg, causing a permanent disabling of that member, a verdict of guilty of shooting with intent to maim is supported by sufficient evidence. The accused might fairly be presumed to have intended the actual and natural result of his unlawful act.

3. An indictment contained three counts, the first and second did not charge the offense to have been committed "against the peace and dignity of the State of Ohio," but the third did 80 charge. The accused was acquitted under the first two counts and convicted under the third.

Held: That, where it did not appear from the record that evidence had been introduced against the prisoner under the first two counts which would have been incompetent under the third and prejudicial, there was no error in refusing to grant a motion for a new trial.

Error to the District Court of Common Pleas of Butler County.

LONGWORT 1, J.

Plaintiff in error was convicted and sen

tenced in the Common Pleas Court of Butler County, of shooting one Samuel Montgomery, with intent to maim. The indictment under which he was tried, contained three counts. charging the shooting to have been with intent, first to kill, second to wound, and third to maim. Under the first two counts the prisoner was acquitted. These two counts closed without alleging that the offence charged, was committed against the peace and dignity of the State of Ohio." The third count however was not defective in this respect. What would have been the effect of a conviction and sentence under either of these defective counts is not necessary for us now to determine. The prisoner was not prejudiced by his acquittal; and such acquittal cured any previous errors which may have intervened in the action of the court touching this objection. We can understand that, where evidence has been introduced against the prisoner upon counts, under which no conviction could be had, and such evidence is incompetent against him upon the valid charge under which he is convicted, the prejudice may be such as to warrant a reversal of the judgment; but it is enough to say that no such case is disclosed by the record before us.

II. It is objected further that the third count of the indictment is insufficient, for the reason that it simply charges an intent to maim without setting forth what member of the body the prisoner intended to injure, disable or destroy. In this respect we do not consider it defective Although both at common law and under our present more liberal practice, it is necessary in charging the offence of "mayhem" or "maining", to set forth what member of the body was actually injured or destroyed, yet under a charge of assault with intent to wound or to maim, it was never necessary to do more than to allege the intent in the words of the statute without setting forth particularly the manner in which it was intended to inflict the injury. Any other rule would lead to absurd results. Suppose a case where one shoots at another, but, not wishing to kill, ims low, 80 that the ball may probably strike anu disable the leg, it would result from the argument of prisoner's counsel, that no indictment would be valid or conviction legal, unless it should be alleged and proved, that the intention was to hit one leg and not the other.

III. The evidence howed that the accused shot Montgomery in ae trunk of the body near the naval, and fro h this it is argued that the intent, though possibly to kill or to wound could not have been to aim. It further appeared, however, that a. erve was destroyed by the bullet in its cours and that, although

the patient has recovered, his right leg is disabled by paralysis, from which it is said he will never, in all probability, recover. From this it seems that the result of the shooting was actually to maim. Can it be said that the verdict, finding that the accused intended the result of his criminal act, was not warranted? We think not. The law presumes all persons to contemplate the natural and probable results of their actions; and we cannot say that the natural and probable result of such an injury as this is not to cause the loss of the use of some important member of the body.

Unquestionably, upon this state of the evidence, the accused might have been properly

convicted, under section 6819 of the Rev. Statutes, of disabling the limb, or, in other words, of the offence of actually "maiming" the injured man; nor could he be heard for a moment to say that he did not intend to do the very thing he did.

Numerous other errors in the proceedings are alleged which we do not think it desirable to consider in detail or notice further than to say that we are unanimously of opinion that no errors intervened at the trial to the prejudice of the accused.

Judgment affirmed.

[This case will appear in 38 O. S.]

IGNORANCE AND MISMANAGEMENT OF PRISONER'S COUNSEL-NEW TRIAL.

ST. LOUIS, MO., COURT OF APPEALS.

THE STATE V. JONES.

The general rule recognized that a party cannot avail himself of the mistakes, ignorance or mismanagement of his own counsel as ground for a new trial; but the rule held not to apply in an extreme case, where the prisoner was convicted of a capital crime and the record showed that he could not have been worse defended if he had been defended by an idiot or lunatic, and that, in consequence of the ignorance of his attorney, he had suffered a deprivation of a substantial right.

LEWIS, P. J.

was

The defendant was convicted of murder in the first degree, and sentenced to death. It is not satisfactorily shown to us that any error committed by the court in the conduct of the trial, but our attention is strongly called to its refusal to sustain a motion for a new trial, based upon the alleged ignorance, imbecility, and incompetency of the defendant's attorney, and his gross mismanagement of the cause.

Such a claim for reversal must be considered with great caution. The law has provided means whereby only persons qualified by learning, intellectual capacity, and good moral character, may be permitted to defend, in any court of justice, the reputation, property or life of a fellow citizen. This being done, the presumption necessarily follows that one who, by such means, has become armed with the proper credentials,

will be competent to judge, and faithful to adopt, the best methods for securing a yindication of his client's rights; with the further presumption that the client in selecting him has elected to abide by the results of his skill and fidelity. It would be difficult to state with too much emphasis, how the stern severity of the courts has generally compelled parties to stand by the consequences of negligent omission, blundering or improper management by their attorneys in legal proceedings. This severity is generally justified by the most important considerations of public policy, as well as by the plain demands of justice, as between the parties to the cause. In civil cases the rule is broadly laid down, that hension of counsel, not occasioned by the adverse "neither the ignorance, blunders, nor misappreparty, is a ground for vacating a judgment or deBoston v. Haynes, 33 Cal., 31; Farmers' Co. v. Bank, 23 Wis., 249; Burton v. Hynson, 14 Ark., 32; Burton v. Wiley, 26 Vt., 430; Quinn v. Wetherbec, 41 Cal., 247.

Pre cree.'

But must there be absolutely no limit to the operation of this rule, even where a human life is at stake? If an attorney should become insane during the progress of a trial, and should thereupon take such steps as would ensure the conviction of an innocent client, would no relief be possible? To say so, would be a libel on the law. In looking over this record we find in the performance of the counsel for the defendant an exhibition of ignorance, stupidity, and silliness, that could not be more absurd or fantastical if it came from an idiot or a lunatic. Among many similar examples it was urged that no act of Congress had ever authorized the State of Missouri to delegate to the city of Saint Louis the power of enforcing the laws; and that the State could not offer proof of the killing, without first proving affirmatively that the deceased was alive, and that he did not kill himself. Objection was made to an officer testifying, "because he undertakes to testify to a confession which he has already testified in the other court, and because it is presumed that he will do the same in this court." It was objected that a confession made in Illinois could not be proved in Missouri for want of jurisdiction, because "the United States have made no law" to authorize it. These are only a few of the absurdities with which the record painfully abounds.

It must be admitted that an attorney who is ignorant or imbecile in a general way, may, nevertheless, conduct a cause with propriety, and omit nothing on the trial which would secure any right or advantage in his client's behalf. So much weight at least, must be accorded to the fact of his admission to the bar. The record before us would indicate no reason for disturbing the judgment, if it contained no evidence of specífic and gross mismanagement, by which the prisoner was deprived of some essential right guaranteed to him by law, necessary for his proper defense, and inseparable from a fair trial. Such evidence is not wanting on the present occasion.

No witness saw the fatal shooting. The pris

ing the rigid rule in ordinary civil cases, as before stated, yet there is high authority for the granting of relief in extreme cases where the client's loss results not merely from negligence, but from the gross ignorance, incompetency or misconduct of the attorney. In Sharp v. The Mayor, etc., 31 Barb., 578, a judgment was ob tained against the city of New York for over $40,000. The corporation counsel failed to prove facts in defense, which were known to him, and which it was his plain duty to prove. After the judgment, although urged by the proper city authorities to take an appeal, he refused to do so. The Supreme Court, in general term, set aside the judgment. Said the court: "Courts of law are not to be used by parties in effecting, through the forms of law, the ruin of a party who has employed an incompetent, negligent, or unattorney."

oner, in aid of his application for a new trial,
filed an affidavit stating, in effect, that several
weeks before the trial, he had informed his at-
torney that he could prove by three several wit-
nesses, naming them, that the deceased had re-
peatedly threatened to kill the affiant on sight;
but the said attorney, "by reason of his incompe-
tency and imbecility, refused and neglected to
bring said facts before the court." That the
facts, as to the homicide were, that when defend-
ant approached the deceased, who was lying in a
hammock, and requested him to settle certain
bills, the deceased arose with an oath, saying he
would kill defendant, at the same time drawing
a pistol. That defendant thereupon shot in self-
defense. The affiant further stated that he in-
formed his attorney of these facts, and requested
to be put upon the stand to testify to them.
But the said attorney, "by reason of incompe-worthy
tency, imbecility, and ignorance of the law, in-
formed this affiant that the law was such that
this affiant, being charged with murder. could
not swear in his own defense." The attorney
filed a counter-affidavit, in which he "denies that
the defendant was not fully informed as to his
right to take the stand as a witness," and alleges
that "it was concluded and agreed" that the de-
fendant should not be put upon the stand, for the
reason, in effect, that the testimony of the officer
to the defendant's confession would accomplish
all that was desired.

Considering the existing exigencies, it may be doubted whether the reason given by the attorney for keeping his client off the stand, was any more creditable to his professional discrimination than the one stated by the prisoner. But waiving that, and also the seeming impropriety of an attorneys volunteering an affidavit to prevent his convicted client from getting a new trial, we think that the general aspect of the record so far corroborates the affidavit of the prisoner, as to entitle him to the benefit of the doubt. We feel constrained to act upon the supposition that the attorney, ignorantly or otherwise, advised his client against going upon the stand, on the ground that, under a charge of murder, he could not lawfully testify in his own be

half.

Of course, we connot assume that the jury would have believed the prisoner's testimony, if it had been given. But if it could have been considered in connection with the proofs of threats from the deceased by three other witness es, as is alleged, there is at least a reasonable probability that the prisoner would have gotten off with conviction of a lower grade of crime, and a lighter punishment than are recorded against him. In any event he has been deprived, in the manner complained of, of a most important weapon for his defense, and one whose use at his option was guaranteed to him by law, for whatever it might be worth.

While it is true, as was held in Bowman v. Field, 9 Mo. App., 576, that there can be no relief against a mere negligent omission of an attorney presumably competent, and notwithstand

If such considerations can prevail where only money or property is concerned, how much weightier should they be, in every rightly constituted mind, where a human life is in the balance! Modern civilization stands aghast at the barbarity of the ancient law which denied to a prisoner the aid of counsel "learned in the law," when on trial for his life. The wisdom and humanity of the present age demand that the maxim, "Every man is presumed to know the law" shall be reversed both in theory and in practice when applied to the legal methods of conducting a defense against a charge of felony. Our State constitution (Art. 11, §22) commands that "in criminál prosecutions, the accused shall have the right to appear and defend, in person and by counsel," and the legislative authority has supplemented this with the provision that, "if any person about to be arraigned upon an indictment for felony be without counsel to conduct his defense, and he be unable to employ any, it shall be the duty of the court to assign him counsel," etc. (Rev. Stat., § 1844.) To say that these beneficent requirements were satisfied in the circumstances of the present case by the share taken in the proceedings by a licensed attorney would be a mockery of the purposes of the constitution and the law. It would be a most unworthy exercise of the judicial function to administer the shadow of the law but not its substance. consider that the prisoner here, in effect, went to his trial and doom without counsel such as the law would secure to every person accused of crime.

We

The judgment is reversed and the cause remanded.-Western Jurist.

THE RIGHT TO SELL TICKETS ON THE
SIDEWALK IN FRONT OF OWNER'S

PREMISES.

NEW YORK SUPREME COURT.

LESTER WALLACK v. CERTAIN TICKET SPECULA

TORS.

June, 1882.
The war in behalf of the theatrical managers

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