Coston v. Paige. dence, and we are called upon to review the decision of the court below as to the credibility of the witnesses and the weight to be given to their statements. We may very reasonably conclude from the different phases of the complicated controversy, bringing the parties so frequently before the court, that the judge who decided the motion had advantages in forming an opinion which we do not possess. We certainly are not in a condition to say that the decision was right, or that we would have decided in the same way; but we are equally unable to say that it was clearly erroneous. We should be able to do so, to justify a reversal of a decision, upon a question of fact, and must therefore affirm the judgment. BRINKERHOFF, C. J., and SCOTT and SUTLIFF, JJ., concurred. 397] *CHAUNCEY COSTON v. CYRILLUS PAIGE. 1. The ground for an attachment may be stated in the affidavit in the language of the statute, without specifying more particularly the facts intended to be alleged. 2. The charge thus made, if denied by the defendant, must be sustained by the plaintiff to the satisfaction of the court; upon the plaintiff, by the denial, is thrown the burden of proof. In error to the district court of Defiance county The case is sufficiently stated in the opinion of the court. Murray & Leland, for plaintiff in error. GHOLSON, J. This is a petition in error to reverse the judgment of the district court of Defiance county. The case has been submitted without argument, and under an agreement between the parties. The allegations of error in the petition extend to the action of the court in refusing to discharge an order of attachment obtained by the plaintiff, and also to certain rulings upon the trial. The affidavit for the attachment was alleged to be insufficient, and, at the same time the truth of the charge was denied, and counter-affidavits of Coston v. Paige. There were also the defendant and others were offered in evidence. offered and read additional affidavits on the part of the plaintiff. The affidavit contains one of the grounds authorized by the statute, and in the language of the statute. The objection chiefly relied on, that the circumstances from which an intent to defraud is inferred, are not set forth, has been already considered during the present term, in the case of Harrison and Wiley v. King, Carey & Howe (ante, p. 388). There has been a difference of practice in the *state; but for the reasons stated in that case, we do not feel [398 disposed to hold insufficient the more liberal rule as to the character of the statements in an affidavit-a rule sanctioned, we think, as well by the decision of the court in the case of Hockspringer v. Ballenburg, 16 Ohio, 304, as also from an implied legislative recognition. We have examined the affidavits as to the truth of the facts charged in the affidavit. In assigning the reasons for his decision, upon that part of the motion, the judge of the court of common pleas appears to have supposed that, the charge being made, it must be disproved by a clear preponderance of evidence, thus assuming that the burden of proof in such a case was thrown on the defendant. To this reasoning we can not assent. If the charge be made by the plaintiff and denied, and nothing appears to authorize greater credit to be given to the statements of the plaintiff than to those of the defendant, the attachment ought to be discharged. When the charge is made and denied, the burden of proof is, we think, thrown on the plaintiff, and he ought to satisfy the court that the charge he has made is well founded. We have felt bound to look at the affidavits from a different point of view from that taken in the court below, and considering that the plaintiff was bound to make good his charge, to inquire whether the decision of the court, in sustaining it, was clearly and manifestly wrong. There is doubtless some discrepancy in the statements of the different persons who gave affidavits, but there is this clear advantage on the part of the plaintiff, that distinct and positive acts and declarations are charged, which are not met by the defendant; while the statements in his affidavits are, to a great extent, not matters of fact, but of belief in the good conduct and intention of the defendant. This appears to have been felt by the defendant, for it is shown that he desired to produce rebutting evidence, which was refused by the judge, and is one of the grounds Hardy v. Turney. of error alleged in the petition. In this, there may possibly have 399] *been injustice done to the defendant, but it is a matter resting entirely in the discretion of the judge who heard the motion. Undoubtedly, before a motion of this kind is brought on, and heard, each party should be required to file his affidavits for the inspection of the other party, so that he may not be taken by surprise. But if, without this precaution, the hearing of the motion is brought on, and the affidavits for the first time offered and read, whether there shall be a postponement for other affidavits, is to be determined by the judge who hears the motion, and his action, one way or the other, can not be assigned as matter of error. We have examined the two bills of exceptions taken to the ruling of the court in the rejection of evidence. One of these is governed by the principle just declared. It was clearly a matter of discretion-the allowing the party to state matters as rebutting testimony which should have been stated upon his examination in chief. If any case can justify a strict application of this rule, it is when applied to the examination of the parties to the case as witnesses. The other bill of exceptions is taken to the ruling of the court that a certain question and answer were irrelevant. Only the question and answer are set out in the bill of exceptions. No other evidence is stated, so that the connection of the evidence claimed to be competent might be seen, and the court of errors placed in a position to decide whether the evidence was properly rejected. We can not, therefore, allow this exception. The judgment must be affirmed. BRINKERHOFF, C. J., and SCOTT and SUTLIFF, JJ., concurred. PECK, J., concurred as to second proposition of the syllabus, but dissented as to the first. 400] *ELISHA HARDY v. WEAVER A. TURNEY. Under the act of February 24, 1848, amendatory of the "act to regulate the practice of the judicial courts," passed March 12, 1845, it is error for the court, upon the trial of a cause to a jury, to refuse, on the application of a party, to reduce to writing the charge of the court upon points of law involved in the case, before the jury retire to consider of their verdict. Hardy v. Turney, IN error to the court of common pleas of Marion county. Reserved in the district court. The case is stated in the opinion of the court. O. Bowen, for plaintiff in error. P. Bunkar, for defendant in error. SCOTT, J. The original action in this case was brought by Turney, the defendant in error, to recover of Hardy, the plaintiff in error, for the price of a gold watch and chain, sold to the wife of Hardy, for $60.50. The action was assumpsit under the former practice, and the case was tried by a jury, at the June term of the court of common pleas, 1853, and a verdict and judgment rendered against Hardy. On his petition in error, the case comes before us, by the reservation of the district court. From a bill of exceptions taken by the plaintiff in error during the progress of the trial, it appears, among other things, that after the evidence on both sides had been closed, the plaintiff in error asked the court to give certain specified instructions to the jury, upon points of law arising in the case, some of which were given as requested, and others materially modified. "The counsel for the defendant thereupon, before the jury had retired to consider of their verdict in the case, applied to, and requested, the court to reduce to writing the charge of the court upon the several [401 points of law involved in this case, and particularly upon the foregoing points, upon which the said defendant's counsel had requested the instructions as above stated; which application and request of said defendant's counsel, the court refused to grant; and would not, before said jury retired to consider of their verdict, reduce to writing its charge upon the points of law aforesaid, nor was the same reduced to writing until after the verdict of the jury had been returned into court." This refusal of the court was excepted to at the time, and is now, among other things, assigned for error. Can the refusal of the court to comply with this request of the defendant below, be justified? The statutory provision, in force at the time of the trial, and which must determine this question, is found in "an act to amend an act entitled 'an act to regulate the practice of the judicial curts.'" It reads thus: "In all cases tried to a jury, the presiding judge shall, on the ap VOL. IX-21 321 Carter v. Krise. plication of either party to the case on trial, before the jury retire to consider of their verdict, reduce to writing the charge of the court upon any point of law involved in the case, and such charge shall remain on file, among the papers in the cause." 2 Curwen's Stat. 1433, chap. 855. The language of this statute is imperative, and its purpose apparent. It was, no doubt, intended to guard, as far as possible, against a misapprehension by the jury, of the law of the case as charged by the court, and to secure to the parties the benefit of a full and fair bill of exceptions. For these purposes it gives either party a right to ask that the judge shall reduce to writing his charge upon any point of law involved in the case, before the jury retire to consider of their verdict, and it withholds from the court all discretion to refuse the application. "The judge shall," etc. 402] It may be, that, in this case, the bill of exceptions, *though not reduced to writing till after the verdict was returned, fully and fairly presents the instructions given by the court, to which counsel at the time took exception, yet that security against mistake which the statute awarded to the party as a right, was denied him. And, for this reason, without passing upon other errors assigned, we reverse the judgment of the common pleas, and remand the case. BRINKERHOFF, C. J., and SUTLIFF, PECK, and GHOLSON, JJ., con curred. HIGHLAND CARTER v. SARAH A. KRISE. On the trial of the issue prescribed by the act of February 2, 1824, "for the maintenance and support of illegitimate children," the defendant, by virtue of the provisions of section 310 of the code of civil procedure, is a competent witness in his own behalf. RESERVED in the district court of Ashland county. The case is sufficiently stated in the opinion of the court. Fulton, McCombs & McCarty, for plaintiff in error. Kenney, Porter & Osborn, for defendant in error. |