Allen Circuit Court.

less so expressed, which provision appeared for the first time in the revision of 1880.

The case of McAlpin v. Clark, decided by the general term of the superior court and reported in 2 S. & C. P. (13), 160, is cited as bearing on this case. It was there held that in a cause pending in that court on and before November 1, 1893, and in which judgment was rendered June 29, 1894, and a bill of exceptions filed June 30, 1894, and a petition in error filed in the general term July 24, 1894, that such court had no jurisdiction thereof, and that it could properly be filed in the circuit court. But we understand that the ground of this holding was that while the law of April 18, 1893, was in force, and afterwards as to all judgments rendered before July 1, 1894, by the superior court, that the law of 1893 conferred such jurisdictions in error proceedings, and that the provisions of section 79 did not apply to them, for the reason that the error proceeding was a new one, and not a continuation of the old action, and therefore was not a pending proceeding when the law came into operation.

This we think was correct. But an appeal is very different from a proceeding in error, as is shown by the decision of the Supreme Court referred to by Judge Smith in announcing the decision of the general term in that case. The former is a continuance of the original action, and it would be affected by any statute relating to the remedy in such cases, if it was stated therein, that it should affect pending actions.

Our conclusions then is that the appeal was not well taken, and that the motion to dismiss it should be sustained and the case stricken from the docket.

Robert S. Fulton, for the Motion.
John Boutet, Contra.

FORGERY-INDICTMENT.

[Allen Circuit Court, November, 1896.]
MOORE V. STATE OF OHIO.

1. FORGING AN ORDER FOR THE DELIVERY OF GOODS.

To constitute forgery of an order or request for the delivery of goods or chattels, it is essential that the instrument must either on its face be one coming within the meaning of the statute, or it must be made so as to appear by averments of extrinsic facts in the indictment.

2. INDICTMENT FOR UTTERING A FORGED RECEIPT.

Where in an indictment for uttering a forged receipt the instrument set out is not prima facie a receipt, such extrinsic facts must be averred as are necessary to show that the instrument would, if genuine, have the operation and effect of a receipt.

3. INDICTMENT MUST AVER WHAT.

An indictment for the forgery of the following instrument: "J. B. Vail, 322 West Market Street, Office 125 West Market Street: Please give bearer coat and oblige, J. B. Vail; is not prima facie, an order or request for the delivery of goods and chattels within the meaning of section 7091 of the Revised Statutes, and in the absence of averments in the indictment of extrinsic facts in aid of the allegation of fraud, and in explanation of the nature and character of the instrument; the indictment does not charge the accused with the commission of a crime within the meaning of said statute.

Moore v. State of Ohio.

ERROR to the Court of Common Pleas of Allen county.

FINLEY, J.

The plaintiff in error, Joseph B. Moore, was indicted by the grand jury of Allen county at its October term, A. D. 1895.

The material description of the crime charged is as follows:

"Do find and present that Joseph B. Moore, late of said county, on the 8th day of October, in the year of our Lord one thousand eight hundred and ninety-five, with force and arms, in said county of Allen and state of Ohio, unlawfully did falsely make, forge, and counterfeit a certain order for the delivery of goods and chattels, which said false, forged and counterfeited order for the delivery of goods and chattels is of the purport and value following: J. B. Vail, 322 West Market Street, Office 125 West Market Street, Please give bearer coat and oblige, J. B. Vail,' with intent thereby to unlawfully defraud, etc."

To this indictment the defendant filed a motion to quash, for the reasons set forth in the motion "that it appears upon the face of the indictment that a true copy of the order alleged to be forged is not given, but only the purport and value of the same, without setting forth the reasons or excuse why a copy of the order itself instead of its purport and value, is not given.'

The motion to quash was overruleu ov the court below, and exception taken.

A demurrer was also filed to the indictment, which was overruled, and exception noted. Thereupon, on a plea of not guilty, the plaintiff in error was tried at the October term, 1895, found guilty, and sentenced to imprisonment in the penitentiary for a period of ten years. He prosecutes error to this court to reverse the judgment of the court below.

It appears from the record that the accused entered a plea of "not guilty" on the 22d of November, 1895, and that the motion to quash was filed on the 17th of the following December, but it nowhere appears that the former plea of "not guilty" was withdrawn, nor does it appear that after the motion to quash and the demurrer were overruled, the accused was called upon to further plead to the indictment; nor does it appear that a motion for a new trial, or a motion in arrest of judgment was interposed by the accused, nor was any exception taken to the judgment and sentence of the court. Nor was a bill of exceptions taken containing the evidence on the trial.

Did the ourt err in overruling the motion to quash the indictment? Section 7248 of the Revised Statutes provides that the accused may except to an indictment by, 1st, a motion to quash; 2d, plea in abatement: 3d, a demurrer. And section 7256 provides that when demurrer is overruled, the accused may plead not guilty. Section 7253 provides that the accused by demurring, or pleading to the general issue, shall be taken to have waived all defects which may be excepted to by a motion. to quash.

In this case, the accused, having entered a plea of not guilty, thereby waived all defects which he migh have excepted to by the motion to quash subsequently made, and we hold therefore that the court below did not err in overruling the motion to quash the indictment for that reason.

We think, however, independent of this objection, that the statute, section 7218, provides what shall be sufficient in an indictment for forgery, namely, that it shall be a sufficit description of the forged in trunent to set forth its purport and value, without alleging its loss or destruction.

Allen Circuit Court.

Did the court err in overruling the demurrer to the indictment? In other words, does the indictment charge the accused with the crime of forging an order for the delivery of goods and chattels within the meaning of section 7091 of the Revised Statutes?

Though the accused interposed no formal motion for a new trial, nor in arrest of judgment, and no formal exceptions were taken by him in any way to the verdict and judgment, yet if the indictment charges him with no crime punishable by law, he did not by such neglect, forfeit his right to interpose that objection at any time or at any stage of the proceedings.

Though the purport and value of the instrument alleged to have been forged is only given in the indictment, yet, inasmuch, as the state on the trial would be confined in its proof of the description of the forged instrument substantially as set forth in the indictment, we may consider the instrument, as set out, a true copy of the original.

There being no averments in the indictment making it to appear wherein the purported order was fraudulent, the character of the instrument itself must be determined by its terms alone.

To constitute forgery of an order or request for the delivery of goods or chattels, it is essential that the instrument must either on its face be one coming within the meaning of the statute, or it must be made so to appear by averments of extrinsic facts in the indictment.

If, therefore, as in this case, the instrument requires averments of extrinsic facts, to bring it within the description of an order for the delivery of goods and chattels, and no such averments are made in the indictment, then the intent to defraud would not follow from the mere false making of the instrument. This so-called order, though negotiable on its face, is addressed to no one. It is not an order on any one. It makes no request or requirement of any one. For aught that appears to the contrary, it is addressed to and subscribed by J. B. Vail, provided that the name and office address of the person at the beginning of it can be said to be the person to whom it is addressed; which is a matter of some doubt. The most that can be said of it is, that it is a request by J. B. Vail, made upon himself, to give the bearer a coat. He is asked to give the coat-a mere donation-no words implying that the drawer or maker of the instrument expects to be charged with the value of or to account for the value of the coat. Would such an instrument, if genuine, be calculated to defraud J. B. Vail? Certainly not. Does its negotiable character change it in any way so as to make it calculated to defraud a stranger into whose hands it might fall? We think not.

We think that the instrument, if genuine, would not have created a liability on the part of J. B. Vail to account to the holder of it for the value of the goods, had they been delivered.

It is not prima facie an order for the delivery of goods, whereby the drawer obligates himself in any way; therefore, we think it comes within the rule laid down by the Supreme Court in Henry v. State, 35 Ohio State, 128, as follows:

"Where an indictment for uttering a forged receipt, the instrument set out is not prima facie a receipt, such extrinsic facts must be averred as are necessary to show that the instrument would, if genuine, have the operation and effect of a receipt."

We are referred to Chidester v. State, 25 Ohio State, 433. as holding an instrument similar to this to be an order.

Ramway Co. v. Bishop.

We think there is a wide distinction between that case and this. In that case, unlike this, the drawer and drawee were different persons. In that case, unlike this, the drawer promised in the order to pay for the goods. Nothing of the kind appears in this instrument. In this case, it is extremely doubtful whether the order is drawn upon any one; at most, the drawer and drawee appear to be one and the same person. In the Chidester case, the court held the instrument to be an order for the delivery of goods expressly on the ground that it directs the drawee to deliver certain goods, (which were then the property of the drawee), to the person named in the order "on the credit of the drawer," and says that if the order had been genuine, it would have created a liability on the part of Butler, the drawer, to account to Schroeder, the drawee, "for the value of the goods," delivered by him to Chidester (the accused) upon such order. These clements are wanting in this case.

We are, therefore, of opinion that the instrument set out in the indictment is not prima facie an order or request for the delivery of goods and chattels within the meaning of section 7,09% of the Rev. Stat. of Ohio, and in the absence of averments in the indictment of extrinsic facts in aid of the allegation of fraud, and in explanation of the nature and character of the instrument; the indictment does not charge the accused with the commission of a cime within the meaning of said statute.

The judgment of the court of common pleas will therefore be reversed, and the plaintiff in error discharged.

RAILROADS-CONTRACTS-FELLOW SERVANTS.
[Mahoning Circuit Court, November, 1896.]
Laubie, Frazier and Burrows, JJ.

P. & L. E. R. R. Co. v. WILFRED W. BISHOP.

1. RIGHTS OF A RAILWAY POSTAL CLERK, HOW GOVERNED. The legal effect of contracts, and the rights of parties and privies thereto, are generally governed by the law of the place of the contract, and the supreme court of the United States, having decided that postal clerks, in charge of mails on railway trains, are not entiued to be considered as, and are not vested with the rights of passengers thereon, by virtue of the contract between the railway company and the United States and the provisions of the statutes of the United States in regard thereto, ic: the carrying of such mails and postal clerks, and are not, therefore, deprived such rights by force of the statute of a state, under which such clerks are considered as, and entitled only to the rights of an employee of a railway company, in case of being injured while on duty on its train, a postal clerk, resident of Ohio, in charge of the mail on a train of the plaintiff in error while on a trip from Youngstown, O., tơ Pittsburg, Pa., under a contract between the Urtited States and the company, made at Washington, D. C., who was injured in a collision of trains in the latter named state, caused by the negligence of the conductor of the coiliding train, cannot recover therefor, when by the statute and law of such state an employee of a railway company cannot recover of such company for an injury cansed by the negligence of a fellow servant, and postal clerks are regarded as employees of the company on its cars, and as fellow-servants of conductors of trains, and entitled only to the same rights against the company as an employee, in case of injury while on duty.

2. REFUSAL Of the CourT TO SEND ITS CHARGE TO THE JURY.

It is not error for a court to refuse to send its enarge to the ury, where there was no request made of the court to reduce it to writing, though ho voluntarily

Mahoning Circuit Court.

reduced it to writing, therefore the parties were not entitled to demand as of right, that the charge should be sent to the jury, along with the papers in the case.

LAUBIE, J.

This is a proceeding upon the part of the railroad company to reverse the judgment of the court below, in an action brought by Bishop to recover for personal injuries sustained by him in a collision on the road of the company in the state of Pennsylvania. He was a railway postal clerk on one of the colliding trains.

One of the grounds of error is that the court below refused to send its written charge to the jury. There was no request made of the court below to reduce its charge to writing, and hence the parties were not entitled to demand as of right that it should be sent to the jury, and the court committed no error in refusing to send the charge to the jury, although it had voluntarily reduced it to writing.

The main question in the case, which has been very extensively argued and presented to us by counsel for each party, is as to the rights of Bishop while upon the train under the laws of Pennsylvania.

The plaintiff in his petition alleges, inter alia, that on the 7th day of December, 1895, and for a long time prior thereto, he was employed by the United States as a postal clerk, and was running as such clerk from the city of Cleveland, O., to the city of Pittsburg, Pa., and return. That by some agreement, the terms of which are unknown to the plaintiff, and he is unable to set forth a copy of this agreement, the Pittsburg & Lake Erie Railroad Co., had contracted to carry the mails between the city of Youngstown, O., and the said city of Pittsburg. Also, for a valuable consideration, agreed and bound itself by such contract to carry the plaintiff so that he might discharge the duties which he contracted with said United States government to discharge, and that by reason of the premises that said plaintiff was a passenger upon said train. That said defendant company owed to him the highest degree of care. That on the 7th day of December, 1895, while he was upon a train of the defendant, in the discharge of his duties, as aforesaid, such train collided near Wampum, Pa., with a freight train, it being a rear end collision, and that he sustained serious and permanent injuries by reason thereof. That this collision had occurred through the negligence and carelessness of the conductor of the freight train, and of the train dispatcher of the defendant's road.

The allegation in the petition as to the train dispatcher was eliminated from the case by a written withdrawal entered upon the records upon the part of the plaintiff; and the case was tried solely upon the allegation of negligence of the conductor of the freight train.

In the answer the defendant admits that it is a corporation under the laws of the states of Ohio and Pennsylvania, and that its road extends from Youngstown, O., to the city of Pittsburg, Pa., and beyond. And admits that on the 7th day of December, 1895, and prior thereto, plaintiff was in the employ of the United States government as a postal clerk, and as such was employed to work on and about a mail car on the defendant's road, running between Youngstown, O., and Pittsburg, Pa., and that while he was riding upon said car on said day as such postal clerk he was injured by reason of a collision of the engine of his train with the rear end of a freight train standing upon the track north of the passing siding at Wampum.