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as is very fittingly and appropriately said by Durfee, C. J., in State v. Kartz, 13 R. I. 528: 22 To introduce into the law the principle that a person can be punished for what other people say about him, is to render all the constitutional safeguards of life, liberty and property unavailing for his protection; for it is impossible to say to what purposes so pernicious a principle may not be applied if it is once permitted to take root.” To concede to the legislature the power to provide, in prosecutions under the act here in

question, that the unlawful character of the combination to , which the defendant belongs, may be established—that is, made certain- by proof of its general reputation as such, is to grant that the legislature has power to, and may, in a criminal case, prescribe a rule of conclusive evidence as to a vital and controlling fact, that shall be binding alike upon court and jury. This the General Assembly may not do. In the present case we are of opinion that the last paragraph of section 4427-6, whereby it is provided that “The character of the trust or combination alleged may be established by proof of its general reputation as such," is invalid, in that it not only permits the conviction of a defendant upon purely hearsay evidence, but it in effect deprives him of the benefit of the presumption of innocence, as to a vital and essential fact which the state is bound to affirmatively establish by competent evidence, by substituting for proof of such fact, proof merely of general reputation as to its existence. This, we think, is not "due process of law," but is violative of section 1, aricle 14, of the constitution of the United States, which provides that: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United 23 States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It follows that the judgment of conviction in this case should be set aside and the case remanded to the court of common pleas for a new trial. Inasmuch as the case must go back for retrial, it is perhaps proper that we should state, in view of the doubtful character of certain evidence admitted by the court of common pleas, other than that above referred to, that the rule is, that the acts and declarations of a conspirator in the absence of an alleged co-conspirator can be given in evidence against the latter only after the fact of conspiracy has been established; and until the conspiracy is shown by other and independent evidence, the acts and declarations of an alleged co-conspirator are inadmissible to establish the connection with such conspiracy of one charged as a co-conspirator.

Judgment reversed.

Shauck, C. J., Price, Summers, Spear and Davis, JJ., concur.

Evidence.The Validity of Statutes declaring that a certain fact shall be deemed prima facie evidence of another is discussed in the note to People v. Cannon, 36 Am. St. Rer. 682. A statute making the failure of a banker within thirty days after receiving a deposit prima facie evidence of an intent on his part to defraud, is held constitu. tional in Meadowcroft v. People, 163 Ill. 56, 54 Am. St. Rep. 447; a statute making the possession of registered bottles prima facie evidence of a violation of a statute forbidding the use and sale of such bottles without the consent of the person whose name appears there. on, is held constitutional in Commonwealth v. Anselvich, 186 Mass. 376, 104 Am. St. Rep. 590; and a statute providing that the failure or refusal of any person who has entered into a contract for service and obtained any money or property thereby, to perform such ser. vice or refund such money or property without just cause, shall be prima facie evidence of an intent to defraud, is held constitutional in State v. Thomas, 144 Ala. 77, 113 Am. St. Rep. 17.

MARSI V. KOONS.

[78 Ohio St. 68, 84 N. E. 599.) NEGLIGENCE, Contributory, Failure to Plead.-If the plaintiff's evidence shows him to have been guilty of contributory negligence, the court may direct a verdict against him, although the defendant has not pleaded such negligence. (p. 689.)

ANIMALS, Owners of, When not Made Answerable for Injuries Due to Their Being on the Highways.-A statute making it unlawful to suřer cattle to run at large is not presumed to have for its object the safety of travelers on the public highways, and therefore does not render the owners of such animals liable for injuries suffered by their being in such highway, where no liability existed at the common law. (p. 892.)

ANIMALS, Liability of Owner of Cattle for Injuries Resulting to Traveler on Public Way.—The owner of a cow which was lying in a public highway is not answerable for injuries suffered by a person riding in a vehicle who was thrown therefrom because his horse was scared by the cow getting up from such lying position. (p. 693.)

IIamilton Bros. and John A. Price, for the plaintiff in error.

West & West and Samuel II. West, for the defendant in error.

68 SUMMERS, J. This is an action to recover damages for personal injuries. The plaintiff was driving a white horse, which frightened at a red cow at large on the public highway and upset the buggy in which she was riding. The accident happened in the daytime. The cow was lying 69 cater-cornered across the traveled way in front of the defendant's farm. The plaintiff, a widow lady seventy-seven years of age, says that it was a very bright, pretty day and that she was driving east, on the Sidney pike, to the city of Bellefontaine; that she saw the cow lying in the road, some distance ahead; that The horse was walking and I was humming along, just alone. I had to drive around her; just went to drive around her, but I didn't. When I got just to her head, she made a lunge to get up and my horse reared on his hind feet, reared around and took up the side of the bank and threw me out on the side and cut my head, as you can see.”

The plaintiff was badly hurt. The trial court directed a verdict for the defendant, for the reason, it is said, that the petition did not state a cause of action, and the circuit court affirmed, for the reason that the plaintiff was guilty of contributory negligence.

Counsel for plaintiff in error call attention to the fact that contributory negligence was not set up as a defense, and contend that the judgment cannot be sustained on that ground. The defendant offered no evidence, and if the evidence offered on the part of the plaintiff raised a presumption of negligence on her part contributing directly to her injury, then the court properly directed the verdict. A cow, unlike a horse, gets up first on her hind legs, and in doing so appears to lunge forward, and it was to be expected that the horse would, under the circumstances, try to give the cow plenty of room. The circuit court took judicial notice of the fact that one never can tell 70 what an old cow will do, and so concluded that the plaintiff was negligent in driving so closely to her.

At common law it was the duty of the owner of cattle to fence them in, but in this state it was not his duty to do so until made so by statute. The burden was upon the occupier of the land to fence them out. The reason for the distinction was that here at an early day but a very small part of the soil was under cultivation, and it much better suited the condition of the people and was a lighter burden on them to inclose the land for the purpose of cultivation and to fence

Am. St. Rep., Vol. 125—44

against the animals running at large: Cincinnati etc. R. R. Co. v. Waterson, 4 Ohio St. 424; Kerwhaker v. Cleveland etc. R. R. Co., 3 Ohio St. 172, 62 Am. Dec. 246; Marietta etc. R. R. Co. v. Stephenson, 24 Ohio St. 48. But conditions changed; the larger part of the land having been brought under cultivation, the public welfare required that the burden be transferred to the owners of the cattle.

Accordingly, in 1865 an act was passed making it unlawful to suffer cattle to run at large. There had been previously to that time laws respecting animals running at large, estrays, fences and inclosures, but it is not necessary to notice them. The act of 1865 has been carried into the Revised Statutes, and for the present it is sufficient to refer to sections 4202, 4206 and 4251. Section 4202 makes it unlawful for any owner of cattle to suffer the same to run at large in any public road or highway, and prescribes a penalty therefor. Section 4206 provides that the owner shall be liable for 71 all damages done by such animal upon the premises of another without reference to the fence that may inclose the premises, and section 4251 provides that if any cattle running at large break into or enter any inclosure, other than inclosures of railroads, the owner of any such animal shall be liable to the owner or occupant of such inclosure for all damages occasioned thereby.

At common law the owner of cattle did not owe to travelers on the highway the duty to prevent his cattle from being at large upon the highway, but if that had been his duty, the common law would have afforded the traveler a remedy by an action in damages against the owner for the injuries. he sustained because of the owner's negligence in the performance of that duty; and so it is held in numerous cases that when it is made unlawful for cattle to be at large in the highway, that the owner owes such a duty to the traveler, and that he is entitled to the common-law remedy in damages, although the only remedy given by the statute is a penalty not made payable to the party injured.

It is so held in Shipley v. Colclough, 81 Mich. 624, 21 Am. St. Rep. 546, 45 N. W. 1106, where one of two cows that were running at large in the highway contrary to law hooked and pushed the other against and under the wheel of a sulky that was being driven along the highway, overturning and injuring the vehicle. The decision is based upon the following statement of the law: “The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is of itself sufficient to prove such a breach 72 of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur: 1 Shearman and Redfield on Negligence, sec. 13.

“These principles apply not only where the statute or ordinance declares that persons violating it shall be liable for any damages sustained by reason of its breach, but also where it contains no such provisions, and simply imposes a penalty, by way of fine or otherwise, for disobedience. Nor is the plaintiff, in such a case, bound to prove that the act required by the law was one which by its nature was essential to the exercise of due care by the defendant”: 1 Shearman and Redfield on Negligence, sec. 13.

A similar case is Jewett v. Gage, 55 Me. 538, 92 Am. Dec. 615, where the plaintiff's wagon and minor child were injured by his horse taking fright at a hog lying by the side of the highway. And in Bott v. Pratt, 33 Minn. 323, 53 Am. Rep. 47, 23 N. W. 237, where a team of horses that had been left standing unfastened and unguarded in violation of a city ordinance ran away and caused injury to a traveler on the streets.

The law is stated as follows in Cooley on Torts, third edition, 1399: “Where the statute imposes a new duty, where none existed before, and gives a specific remedy for its violation, the presumption is, that this remedy was meant to be exclusive, and the party complaining of a breach is confined to it. .... So if performance of a duty is enjoined under a penalty, the recovery of this penalty is in general the sole remedy, even when it is not made payable to the party injured. But the rule is not without its exception; for if a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate 73 to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected."

The cases above cited seem to make the exception the rule.

In Couch v. Steel, 3 El. & Bl. 402, Lord Campbell laid down the rule that wherever a statutory duty is created, any person who can show that he has sustained injuries from the nonperformance of that duty can bring an action for damages against the person on whom the duty is imposed, but in Atkinson v. New Castle etc. Waterworks Co., L. R. 2

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