Fouts v. The State.

Previous to the introduction of any of the declarations of Jonas Fouts, there was evidence, proper for the consideration of the jury, tending to show that an arrangement had been perfected between the two Fouts, to murder Scott. What either of them did afterward, toward the consummation of the object which they had thus mutually agreed to effect, was competent evidence against both or against either.

The declarations made by Jonas Fouts to Moses Geddis, do not, however, fall within this rule. He related what he himself intended to do. He disclosed a design, merely, entertained by himself. [477 He connected no one in it, nor did he indicate, by his remarks, any intention to further or carry into effect any combination against the life of Scott. He made no such allusion, but simply imparted the secrets of his own bosom, and the determinations of his own mind. Philip Fouts can not be held responsible for such declarations, made on the sole responsibility of his brother, and not in furtherance of any common and joint plan of theirs. The court of common pleas, therefore, we think, erred in admitting this testimony.

It is different, however, in regard to the declarations made by Jonas Fouts to Amos M. Scott. These related to the common design, and were in furtherance of it. They tended to show that both he and Philip had, the night before, been searching for the deceased; that the plan was, for both of them to undertake to accompany him, after night, to Rousseau, with the view of thus securing an opportunity of perpetrating the crime which they contemplated committing. It was a disclosure, on the part of Jonas, of the common object and plan which had been devised by him and Philip, and of acts done and to be done in pursuance thereof. In other words, the conversation itself was, in fact, an instrumentality, a means employed to bring about an opportunity for carrying into effect their previously formed criminal purpose. In this light, the testimony, as to the declarations of Jonas, was rather evidence of acts-verbal acts—and part of the res gesta, than mere declarations in the ordinary sense.

The principle on which the acts and declarations of other conspirators are admitted in evidence against the person prosecuted, is, that by the act of conspiring together the conspirators have jointly assumed to themselves, as a body, the attribute of individuality, so far as regards the prosecution of the common design; thus render

Steamboat Monarch v. Marine Railway and Dry-Dock Co.

ing whatever is done or said by any one, in furtherance of that design, a part of the res gesta, and therefore the act of all. 3 Greenl. Ev., sec. 94. For this reason the evidence of the declarations made to Amos M. Scott by Jonas Fouts, was clearly admissible as against Philip Fouts, and the court did not err in overruling the defendant's exceptions to it.

478] *The judgment of the common pleas is reversed, and cause remanded for further proceedings.

BARTLEY, C. J., and SWAN, BRINKERHOFF, and SCOTT, JJ., concurred.

THE STEAMBOAT MONARCH v. THE MARINE RAILWAY and DryDOCK COMPANY.

The captain of the steamboat Monarch hired a barge at Cincinnati, by contract, in the name of the boat and on behalf of her owners, for the purpose of loading the barge with lumber at Louisville, to be taken in tow of the steamer to St. Louis. This purpose was made known to the owners of the barge at the date of the contract. The captain of the Monarch intended to carry out this purpose for the benefit of the Monarch and her owners, who were aware of the contract, and sanctioned it.

The Monarch took the barge in tow, loaded, at Louisville, but the water had become so low that she could not go to St. Louis, but procured another steamboat to tow the barge and freights there. Held, that the Monarch was liable, under the water-craft law of Ohio, in an action against her by name, for the hire of the barge, although she was transferred to new owners after the hiring, and before suit.

MOTION for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.

On the 28th of May, 1856, at Cincinnati, the captain of the steamboat Monarch, a vessel navigating the waters bordering upon the State of Ohio, in the name of the boat and on behalf of her owners, hired, by written contract, of the Marine Railway and Dry-Dock Company, the barge Wide Awake, at the rate of ten dollars per day, for the purpose of loading the same with lumber at Louisville, and transporting the lumber, on the barge, in tow of the Monarch, from Louisville to St. Louis, which purpose was

Steamboat Monarch v. Marine Railway and Dry-Dock Co.

made known to said company at the date of the contract. The captain intended to carry out this purpose for the benefit of the Monarch and her owners, who were aware of the contract, and sanctioned it.

*The Monarch, that trip, was loaded with lumber and [479 shingles, principally; and the barge, having been sent ahead by the captain of the Monarch, to Louisville, and loaded, was there taken in tow of the Monarch about the first of June, 1856; but the water had become so low that the Monarch could not go to St. Louis, and procured another steamboat to tow the barge to St. Louis. The largest amount of the freights of the lumber, etc., shipped on the barge, was applied to the expense of getting the barge towed to St. Louis, and the remainder was used for the steamboat Monarch; and the Monarch could not have taken all the freights without the barge. The barge was retained under the contract ninety-two days. The Monarch passed into the hands of new owners, by a sale, in December, 1856.

In January, 1857, said company brought suit in the Superior Court of Cincinnati against the Monarch, by name, for the hire of the barge. The case was submitted to the court at special term, and the court found against the boat for the hire of the barge.

A motion was made on behalf of the boat to set aside the finding, and for a new trial, on the ground that the finding was contrary to law.

The Superior Court, at general term, on this motion reserved, affirmed said finding, and judgment was entered.

To reverse this judgment, a motion is made on behalf of the Monarch, for leave to file a petition in error in the Supreme Court.

Coffin & Mitchell, for the motion, insist that the Superior Court. erred, because:

1. A steamboat is not liable to be sued by name, even for supplies, after a change of owners; and,

2. This barge was not in any sense within the "supplies" of the

statute.

King, Anderson, and Sage, contra.

BY THE COURT. Motion overruled.

VOL. VII

433

Herig v. Nougaret.

480]

*JOHN HERIG v. R. NOUGARET.

Suit by N. v. H. on undertaking on docket of P., a justice of the peace, for stay of execution. N., to maintain the issue on his part, introduced the record of the judgment, and H. admitted that at the time he signed his name on the docket, justice P. added to the name "for stay." H. offered to prove that he signed his name in blank on the docket, and that no undertaking was then written out; and that after P.'s term of office had expired, and his official records had been transferred to his successor, ex-justice P., without the consent of H., wrote on the docket, above H.'s blank signature, the undertaking sued on. Held, that it was not error in the court below to reject this testimony offered by H.

MOTION for leave to file a petition in error to reverse the judgment of the district court of Cuyahoga county.

In December, 1855, Nougaret recovered a judgment against Halenz, before Philpot, a justice of the peace. Upon the record of this judgment Nougaret brought suit before another justice against Herig, as bail for stay of execution, and judgment was rendered against Herig, and he appealed.

In the common pleas, the case was submitted to court for trial, and judgment was rendered against Herig, who took a bill of exceptions, from which it appears that Nougaret, to sustain the issue on his part, gave in evidence the record of the case of Nougaret v. Halenz, before Justice Philpot. This record contains an undertaking in the usual form for the stay of execution, signed "John Herig, for stay," and it being admitted by Herig that Justice Philpot appended the words "for stay" to the name of said Herig, at the time he wrote it on the record, Nougaret rested his case.

Herig then, to maintain the issue on his part, offered to prove that when he wrote his name on the record he wrote it in blank, no undertaking having then been written or entered on said record. That long after said Philpot's term of office had expired, and his official records had been transferred to the custody of his successor, 481] Justice Vail, who had entered upon his official duties, *the said Philpot intermeddled with the records of said case of Nougaret v. Halenz, and, without the consent of the defendant Herig, wrote therein over the name of said Herig, where he had signed it in blank, the undertaking therein contained, and upon which tho action against him was founded.

Sandusky City Bank v. Wilbor.

Nougaret objected to the admission of this testimony, and the court sustained the objection, and ruled it out; and Herig excepted, and prosecuted a petition in error in the district court to reverse the rulings and judgment of the common pleas; but the district court affirmed the same.

To reverse this affirmance a motion is made by Herig for leave to file a petition in error in the Supreme Court.

John M. Heisley, for the motion.
William Slade, Jun., contra.

BY THE COURT. Motion overruled.

THE SANDUSKY CITY BANK v. JOHN B. WILBOR.

The act entitled "an act to tax banks and bank and other stocks the same as other property is now taxable in this state," passed March 21, 1851, is not in conflict with the Ohio constitution of 1802, nor with the tenth section of article 1 of the constitution of the United States, prohibiting all laws impairing the obligation of contracts.

The act of March 7, 1842, providing that all subsequent acts of incorporation should be subject to amendment or repeal in the discretion of the legislature, being in force at the time of the passage of the act of February 24, 1845, entitled "an act to incorporate the State Bank of Ohio and other banking companies," as well as the terms of the last-named act, indicates the understanding of the legislature enacting the law, that section 60 of the act was, like other laws, subject to amendment.

Section 60 of said act of February 24, 1845, is not a contract within the meaning of the constitution of the United States.

The judicial construction given to the statutes under consideration, by the Supreme Court of the United States, being a departure by that court from the uniform and unanimous previous judicial construction given those statutes by the Supreme * Court of this state, ought not to constitute [482 a rule of construction for this court.

The judicial construction heretofore unanimously given to the statutes of February 24, 1845, and March 21, 1851, by the Supreme Court of this state, ought to be adhered to by this court until convinced that such construction is erroneous.