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Thompson v. Ackerman.

tion is derived from the statute and if not exercised within the time allowed by law it is clearly lost and the cause is no longer pending before him. The legal effect of such a failure in duty is a discontinuance of the action. So jurisdiction may be lost by an adjournment of the suit, without consent of parties, for a time longer than the statute permits."

It follows that in adjourning the hearing of the motion for new trial to a time when the justice of the peace had no jurisdiction to render a valid judgment on the motion, jurisdiction was lost unless parties consented to such adjournment.

The court being one of inferior jurisdiction, this consent conferring jurisdiction must appear of record, and appearance at the time of hearing so fixed is not such consent. Derby v. Heath, supra.

The justice of the peace, therefore, on March 21, was without jurisdiction to hear this motion, the cause was discontinued, and an order then made fixing a time to prepare a bill of exceptions was a nullity, and the bill prepared and filed thirteen days after judgment can not be considered by a reviewing court. No errors being assigned, save those predicated upon the bill of exceptions, this ruling would be conclusive. of the matter, but inasmuch as this point was not argued by counsel, and being mindful that the statute forbids courts and judges to practice law, we have considered the cause upon the merits.

It is first objected that there is a defect of parties defendant. Charles A. Ackerman contends that he is not liable; that no cause of action exists or can exist against him, but that the cause of action, if any, is against Michael. The case as claimed by Charles, is the same as if A were sued upon a promissory note and upon which not A, but B was liable. This would not be a case of defect of parties defendant, and plaintiff would fail because he had no cause of action against A. The justice of the peace in ruling that there was no defect of parties defendant was not in error.

It is next objected that the trial court erred in permitting plaintiff on re-examination to answer two questions over defendant's objection. These questions and the answers thereto are mere repetitions of questions and answers put to Thompson by defendant on cross-examination, and for that reason were not prejudicial.

The defendant at the close of plaintiff's case moved the court to direct a verdict for defendant. This motion was overruled and defendant excepted. As the case then stood, it was "conceded that on February 3, 1900, there was gambling conducted on the premises in the complaint described, and that this gambling was with the knowledge and consent of Charles L. Ackerman. The language is, "there was gambling conducted."

"To conduct," according to the Century dictionary, means "to direct the course of, to manage, to carry on," and, by the same authority, "to carry on" means "to manage or be engaged in; to continue to prosecute; to keep in progress."

If gambling was then managed and kept in progress, the transaction was more than a single act, and it seems to us the meaning is, or may be that on that day the building was in part occupied for gambling purposes.

It is urged that Charles L. Ackerman was not a tenant to Thompson; that there was neither privity of estate nor contract between them, and that plaintiff's evidence so shows. The testimony of Thompson is that Charles L. Ackerman was the occupant; that he paid the rent, tak

Allen Circuit Court.

ing receipts in the name of Michael Ackerman; that Michael Ackerman sold the fixtures to Charles, took a chattel mortgage, and that he (Thompson)" understood or had heard that Charles was the owner o the lease."

That this statement of the witness is hearsay is beyond question, but it went to the jury without objection. Can it be said that, under such circumstances, this hearsay is no evidence?

In Damon v. Carroll, 163 Mass., 404 [40 N. E. Rep., 185], where hearsay evidence was submitted to the jury without objection and no motion to rule out was made, it was said, pp. 187, 408: "It is the ordinary case of something less than the best evidence, but of evidence admitted and to be dealt with by the jury. *** Papers signed by trustworthy persons, if put in evidence before a jury, although not competent if objected to, naturally tend to induce belief of the matters contained in them. * * * When hearsay evidence is incompetent, the reason for its exclusion is the same in principle as that which formerly excluded testimony from interested witnesses. * * * But it was always held that if testimony, incompetent by the reason of the interest of a witness, was allowed to go before the jury, they might consider it as they would any other testimony. Healy v. Barnes, 4 Denio, 73; Donelson v. Taylor, 8 Pick, 390; 1 Greenl. Ev. (15 ed.), Sec. 421 * * * Ib. 423. *** Hearsay evidence is treated by Bentham as in the nature of secondary evidence. * *** It is admitted in Scotland. Upon some questions, hearsay is competent evidence everywhere." shown by the head note, it was held in that case that evidence not competent if objected to, when admitted without objection, has its natural probative effect.

In this view the hearsay evidence of Thompson was some evidence of the fact that Charles L. Ackerman was the owner of the lease. Aside from this evidence, in an action by the owner of the fee against one in possession of the leased premises, the latter will be presumed to be the assignee of the lessee unless the contrary is shown. Cross v. Upson, 17 Wis., 618; Mariner v. Crocker, 18 Wis., 251; Bedford v. Terhune, 30 N. Y., 453 [86 Am. Dec., 394].

The stipulation shows that gambling was carried on in said premises on a certain day with the knowledge of Charles L. Ackerman, and under the facts and circumstances disclosed and with the presumption existing it was proper for the jury to say whether Charles L. Ackerman was a sub-lessee or the assignee of the lessee, and there was no error in overruling defendant's motion to direct a verdict, unless plaintiff is in a position in which he can not take advantage of any breach of condition, which question will be disposed of hereafter.

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The court charged the jury, among other things, "If you find from the evidence and admissions in this case that gaming was permitted or carried on in said premises, then your verdict shall be guilty as charged." If Charles L. Ackerman was the assignee of the lessee, we think this instruction was right, provided that Thompson, as Sattesthwaite's grantee, may maintain the suit. "To permit means either, first, "to suffer or allow to be, come to pass or take place, by tacit consent or by not prohibiting or hindering," or second, "to grant leave or liberty to by express consent; to allow expressly." If being in actual possession he permitted within the one meaning or the other, he would be liable criminally under the gambling statute, Sec. 6933, Rev. Stat. If so, we

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Thompson y. Ackerman.

see no reason why the same conclusion would not follow in a civil action. Saving the questions indicated we find no error in the instruction.

It is to be observed that Charles L. Ackerman as a witness in his own behalf admitted that Michael Ackerman held title to the lease to secure to him, Michael, the payment of money by Charles. In this view Charles was owner and Michael mortgagee of the term, and that in view, according to all authorities, Michael was not a necessary party. 13 Am. & Eng. Ency. Law (2 ed.), 766. The defendant's testimony might well justify the jury in finding that gambling was carried on at other times before February 4, 1900.

It is finally contended that the statute, Sec. 4276, Rev. Stat., creates a condition subsequent, and that Stat. 32 Henry VIII, Chap. 34, not being in force in Ohio, only the lessor or his heirs can take advantage of the forfeiture provided; that this is especially the case since, in express terms, the forfeiture is to result at the instance of the lessor, and that Thompson cannot therefor maintain this action.

Section 4275, Rev. Stat., provides that if the owner of the building in which the money was lost, knowingly permits it to be used for gaming purposes, such building and the real estate upon which it stands shall be liable for the fines and costs, and damages and costs recovered under Sec. 4270, Rev. Stat., and following sections.

Section 4276, Rev. Stat., provides if any person lease premises for gambling, or knowingly permit them to be so used, he, the lessor, shall be liable civilly and criminally as a principal.

The owner therefore "knowingly permitting" is liable to the extent of the particular property, the lessor to the extent of all his property. To "knowingly permit' was first used in the gambling act of January 17, 1846, 44 O. L. 1, Sec. 6932, Rev. Stat. In Sec. 1 of that act it was provided "that if the owner of any building knows that any gaming tables are used therein and shall not forthwith cause complaint to be made against the person so keeping and using the same, he shall be held to have knowingly permitted." The term has been used in the statute from that time to this, and must be held to have the same meaning, to-wit: "having knowledge to fail to hinder or prevent." "To permit" does not here mean to "expressly consent." The owner's knowlege and inaction is enough. The act last passed, 73 O. L. 249, 250, Sec. 6934, Rev. Stat., et seq., as well as all prior acts, was entitled, "An act for the suppression of gambling." That is the end, the purpose of the legislation. Under Section 4276, Rev. Stat., the lessor may and must declare a forfeiture, and failing so to do becomes liable civilly and criminally as a principal. Does the right extend to the lessor's grantee? It is argued that the statute providing for the forfeiture must be strictly construed. As to which forfeiture is the statute to be strictly construed? For there are two forfeitures. The owner who has violated the law by no act of his may forfeit his estate. The tenant by using the premises for gambling purposes may forfeit his term, and the tenant has violated the law by his act. As between the two is not the statute to be construed in favor of the land owner and thus accomplish the purpose of the law, or is it to be construed in favor of the tenant and thus defeat that purpose? But the technical reason is assigned that only a lessor or his heirs can enter for breach of a condition subsequent; that the lessor's grantee cannot. This is not true as to all conditions subsequent. Aside from statute 32, Henry VIII, Chap. 34, only the lessor or his heirs can enter for the breach

30 O. C. D. Vol. 12

Allen Circuit Court.

of a condition subsequent in deed. A condition in deed is an express condition. A condition subsequent is one that defeats or determines a vested interest. For breach of a condition subsequent, expressly stated in the instrument creating the term, only the lessor or his heirs can enter.

The condition here is not shown by the record to be such. Conditions in law are implied conditions, and for breach of these the rule is otherwise. "If there be a breach of the conditions in law, the lessor or his heirs, or, if he have aliened his estate, his assignee, may avail himself of the right to enter." Coke on Littleton, 214; Shepard's Touchstone, 441; 2 Crabb Real Property, 835; 2 Washb. Real Property, Sec. 14; Tiedeman Real Property, Sec. 277. And 4 Kent, page 121, states: "If the tenant for life or years aliened his land by feoffment this act was, at common law, an implied forfeiture of the estate, and the reversioner might enter as for a breach of a condition in law. These estates were likewise subject to forfeiture, not only for waste, but for any other act which in the eye of the law tended to defeat or divest the estate in reversion or pluck the seigniory out of the hands of the lord. It was a tacit condition annexed to every tenancy, that the tenant should not do any act to the prejudice of the reversion." Wright on Tenures, page 203; Taylor on Landl. and T., Secs. 271, 272 and 488.

It cannot be believed that that law which decrees a forfeiture for attorning to a stranger-a void thing and creating no rights as against the landlord-will not so decree when by the tenant an act is done which puts a valid lien upon the landlord's estate, perhaps for an amount which will consume the entire reversion. The liability to loss of his property placed upon the landlord, whether he be the lessor or the grantee of the lessor; the violation of his common law duty by the tenant who conducts gambling upon the leased premises; the purpose of our legislation which is to effectually suppress gambling, the duty of the landlord which is to binder or prevent the unlawful acts upon his premises, all permit, if indeed they do not require the lessor's grantee to hinder gambling upon his premises by expelling therefrom a tenant whose criminal act may deprive the landlord of his entire estate in reversion.

Having imposed this liablility upon the landowner, it would seem a hardship if a way in harmony with the spirit of the legislations were not provided by which the liability could be avoided. We believe that that way has been provided by the common law and that it must be held that it is a tacit condition annexed by law to all tenancies that the lessee or his assignee will not by his unlawful act cause a forfeiture of the landlord's estate, or by such act create an enforcible lien upon the landlord's interest in the leased premises, and for breach of such condition the lessor or his grantee may, by an action in forcible entry and detainer, enforce a forfeiture and recover possession.

We do not pass upon the weight of the evidence because on error in actions for forcible entry and detainer this question cannot be considered. State v. Wood, 22 Ohio St., 537.

Upon the whole case we find no error in the record of the justice of the peace. The judgment of the common pleas is reversed and that of the justice of the peace affirmed.

Brock v. State.

INSANITY CRIMINAL LAW.

[Hamilton (1st) Circuit Court, July 15, 1901.]
JAMES BROCK V. STATE OF OHIO.

1. TRIAL OF Person onCE FOUND "Not Sane."

Where it appears in the record of a criminal proceeding that the accused has been regularly found by a jury to be "not sane," before such accused can be put on trial under the indictment, the record should be made to show by an entry by the court that the steps provided for by Sec. 7243, Rev. Stat., relating to proceedings when accused is restored to reason, have been duly taken, and that the condition of the accused has changed from that of one "not sane" to that of a sane person.

PER CURIAM.

2. Affidavit after Trial NOT SUFFICIENT.

An affidavit of the superintendent of an insane asylum that a person confined therein pursuant to Secs. 7240 and 7241, Rev. Stat., was not insane, made after such person has been tried and found guilty of a crime, is not a compliance with Sec. 7243, Rev. Stat., relating to proceedings when accused is restored to reason, such as will sustain such criminal proceedings.

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3. AFFIDAVIT MUST BE IN BILL OF EXCEPTIONS.

An affidavit is no part of the record and can only become so by being incorporated in a bill of exceptions. A verbatim copy thereof in the record made by the clerk is insufficient.

HEARD ON ERROR.

F. W. Gruen, for plaintiff in error.

R. Froome Morris, contra.

The record in this case discloses that on February 7, 1901, the defendant, Brock, who was under indictment for bigamy, was found by a 'jury to be "not sane," and was remanded by the court to the custody of the sheriff to be held until the further order of the probate court.

There then appear a couple of entries irrelevant to the point here under consideration, and having no reference to the sanity of the accused; and then comes an entry of March 28, 1901, as follows: "This day came the prosecuting attorney on behalf of the state, the defendant being brought into open court in the custody of the sheriff, his counsel also appearing; also came the following petit jurors," * * * including the verdict: "We, the jury on the issue joined, find the defendant, James Brock, guilty of bigamy as he stands charged in the indictment." Subsequently on March 29, a motion for new trial was filed, setting out among other reasons "that the court had no right to try the defendant at this time, because the record discloses that the said defendant is insane."

On the same day an affidavit was filed by Harry M. Hoffheimer, the prosecutor of the county, which is copied into the record and is as follows:

"Harry M. Hoffheimer, being first duly sworn, says that he is the prosecuting attorney of Hamilton county, Ohio, and that on or about the 18th day of February, 1901, he received notice from the superintendent of Longview Asylum, in which place the defendant herein had been confined pursuant to Secs. 7240 and 7241, Rev. Stat. of Ohio, and that the defendant was not insane at that time and had not been insane

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