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taken upon a traverse of the justification, this trespass might have been proved under either of the original counts, the proposition is not correct. We have already shown, we think, that upon such an issue and without the new assignment, the plaintiff must have been precluded from offering any evidence of this trespass, because it would not have been involved in the issue. Strictly speaking, the plaintiff on such an issue, could not have given evidence of any trespass whatever, because there would have been no burthen of proof resting on him. All the acts of trespass about which any question could have been made, would have been admitted by the pleadings, and therefore not to be proved by evidence dehors the record. The proposition, therefore, in the sense in which it is true, has no bearing on the case as now presented ; and in the sense in which it has a bearing on the case it is incorrect.
There is one other meaning which may possibly be attributed to the proposition under consideration. It may be supposed to mean, that the trespass proved under the new assignment might have been proved under either of the original counts as the issue now stands. In this sense it is partly true and partly incorrect. It could not have been given in evidence on the second count, because that count is waived by the pleadings; but it is true, as we contend, that it might have been given in evidence, as in fact it was, on the first count, as that count is restated and explained by the new assignment. This is the precise proposition which we have been endeavoring to establish, but which the court did not sanction. It is evident, therefore, that this cannot be the sense in which the proposition was intended to be used by the court.
The court proceeded to draw an inference from their proposition. Both trespasses might have been given in evidence upon the original counts; consequently, neither of them could be proved in support of the new assignment.' Now this consequence appears to us to be directly the reverse of the true one. In the sense in which the proposition from which the inference is drawn is true, the inference itself is wrong. Let us see, if it is not so. The trespass newly assigned might, if the general issue alone had been originally pleaded, have been given in evidence on the original count. This is the true proposition. But the new assignment is, and necessarily must be of the same, identical trespass mentioned in the original count, and of no other.Consequently - and is not this consequence irresistible ? — the same trespass which might have been given in evidence upon a plea of not guilty to the original count, not only may, but most be given in evidence upon the same plea to the new assignment. If then, the proposition stated in the exception and adopted by the court is true, the inference drawn from it by the court does not follow ; and if the proposition is not true, then the inference is entitled to no more weight than its premises
We come now to the close of the reasoning and opinion of the court. That we may avoid misrepresenting it, we will quote it in the language of the report. The plaintiff might have newly assigned the first trespass as to time, by averring that it was committed before the execution issued, under which the defendant attempted to justify.' And this, we say, is precisely what the plaintiff has done. In his new assignment he expressly avers that the defendant, before the issuing of the writ of execution, &c. took and carried away the hay mentioned in the first count. But then he should have omitted the averment that it was another trespass.' And he has omitted that averment. He has therefore done, precisely what the court say he might have done ; he has omitted, precisely what the court say he should have omitted, and what is the consequence ? • In failing to prove this averment'— that is to say, in failing to prove an averment which he omitted to make; which the court say he should have omitted ; which he could not have made without being guilty of a departure in pleading, which would have been fatal to his case on demurrer; an averment which is not to be found on the record and not involved in the issue ;
in failing to prove this averment, he failed to support the issue on his part, and the verdict should have been for the defendant.'
We commenced an examination of this case, in the first place, with the expectation, founded on long experience in other cases, that a careful review of the reasoning which led to the decision would satisfy us of its correctness, though at first view it appeared to be erroneous. In this expectation we have been disappointed. This disappointment led us to re-examine and reflect upon the argument, but without producing the expected result. On the contrary a more thorough and extensive investigation has served to establish still more firmly the conviction, that the whals
reasoning and decision of the court is founded in error. Our reasons for this conviction are here presented.
The court cited no authorites in support of their decision.We, therefore, turned to the cases cited by the defendant's counsel. If the court had taken time to examine those cases with that discrimination which usually distinguishes their investigations, they must, we think, have perceived that those cases furnished scarcely a semblance, and certainly not the slightest reality of an authority for their decision in this case. This might easily be shown by stating those cases in detail, and pointing out the obvious distinctions between them and the case which we have now been reviewing. We might, also, if we deemed it necessary, cite authorities in support of all the positions, we have attempted to establish. But this article is already extended far beyond its anticipated limits. We will, therefore, only add, that an occasional error of judgment or mistake of principle, like that which we have attempted to point out, ought not to surprize us, or impair our confidence in the court; especially when we take into consideration their multifarious, intricate, and arduous labors. The burthen of their duties is greater than ought to be imposed on any men, and we hope the legislature will no longer be restrained, by a spirit of mistaken economy, from yielding them a slight relief by, at least, adding one to the number of members.
ART. VII.-OHIO LEGISLATION. The Statutes of Ohio, and of the North Western Territory, adopted or enacted from 1789, to 1833 inclusive; together with the Ordinance of 1787; the Constitutions of Ohio, and of the United States ; and various public instruments and acts of Congress ; illustrated by a preliminary sketch of the History of Ohio, numerous references and notes, and copious indexes. Vol. I. Edited by SALMON P. CHASE.
Cincinnati, published by Corey & Fairbank. 1833. The history of Ohio embraces a period of only forty-six years. But in this brief space her legislation had amounted to fifty-one volumes; namely, seven volumes of Territorial laws, thirty-two volumes of general State laws, and twelve volumes of local laws. The legislation of the State commenced in 1902, since which time, besides the annual alterations and additions, there have been five professed general revisions. In the mean time, so few copies of the earliest laws had been printed, and so many of those had been lost, that it bad become literally impossible to procure a complete set. Of the laws of 1792, but a single copy is known to have existed in the State. Yet so short a time has elapsed since the earliest of these laws was repealed, that there is scarcely one which may not affect the present rights of our citizens. Under these circumstances it was matter of surprize, that public provision had not long since been made for re-printing these laws. But an undertaking so important in every point of view was left to the enterprize of private individuals.
The entire work whose title stands at the head of this article will occupy three large octavo volumes of about eight hundred pages each. The first volume is now before us, which comes down to 1810. And the first remark we have to make is, that the mechanical execution is equal to that of any law book, we have ever seen. For this we have to thank the enterprizing publishers, Messrs. Corey & Fairbank, of Cincinnati.
But our heaviest debt of obligation is due to Mr. Chase, the editor, a young, but highly talented member of the Cincinnati bar. His preliminary sketch' of the legislative history of Ohio, must have cost him great labor; for so little has yet been done in this field, that the facts were to be picked up almost one by one. But his notes and references are what give greatest value to the work in the eye of a professional man. By a glance at the margin we see at once when a law has been repealed or modified, and when our court has given it a construction. For the execution of such a task, accuracy is the essential qualification, and this is a prominent attribute of Mr. Chase's mind.He has thus far done his work well, and we trust he will be · rewarded in more ways than one.
It is not our purpose to write a critical review of this volume, for, even had we a taste for such things, this is hardly a proper subject. But we shall make use of this opportunity to present such a general view of the leading features of Ohio legislation,
as will enable strangers to form a tolerably accurate idea of its character. The growth of Ohio, is admitted to be without a parallel in history. Her sons, therefore, are excusable for cherishing a feeling of State pride. Perhaps, it may be such a feeling, which at this moment induces us to believe, that the enlightened citizens of our sister States will be interested to know something of that legislation which has contributed to make Ohio what she is.
It has always seemed matter for deep regret, that communities so closely connected as the meinbers of our Union, should differ so widely in their legislation. In this respect Great Britain scarcely differs more from any one of the States, than these States do from each other. Now it is manisest, that the principal objects of legislation must be the same in every part of the Union; and consequently the only differences wbich are actually necessary, from local peculiarities, would be in the very minute details. There is no substantial reason, for example, why the same crimes should not be every where visited with the same punishment; nor why property should not be every where transferred, devised, and sued for in the same way. Yet so far is this from being the case, that there are no two States, which do not differ in almost innumerable points on these various subjects. Now since these differences do exist, the only way to lessen their obvious inconvenience is to make them as generally known as possible. To this desirable object, we shall endeavor to contribute our mite, by the following observations.
The leading characteristic of our criminal law, is, that it is all of statutory provision. We may add, that it is all comprised in less than fifty pages of our statute book. We acknowledge no part of the common law in regard to crimes. Our criminal code is probably the most humane and the most simple, that has been tried in modern times. We have but one capital crime, namely, murder in the first degree; we have but three which are punishable with imprisonment for lise ; and we have only about thirty which carry the convict to the penitentiary at all. And in these latter cases, only the extreme limits of the duration of imprisonment are fixed, so as to allow the judges a reasonable discretion in adapting the punishment to the facts.
The minor offences which are not far from forty, are punished ehiefly by fines. This we cannot but regard as the very worst mode