Hickox v. Cleveland, 32 Id. 730; Green v. Borough of Reading, 36 Id. 127; Wilson v. Mayor of New York, 43 Id. 723; Commissioners of Kensington v. Wood, 49 Id. 582. As to the power of a municipal corporation with respect to grading streets, see the notes to Hickox v. Cleveland, 32 Id. 730; Humes v. Mayor of Knoxville, 34 Id. 657; Green v. Borough of Reading, 36 Id. 127. AUTHORITY OF AGENT OF CORPORATION, PROOF OF, BY PAROL EVIDENCE: See Melledge v. Boston Iron Company, ante, 59, and note, collecting previous cases in this series. THE PRINCIPAL CASE IS CITED to the effect that a municipal corporation is liable for the injuries done by its officers, acting within the scope of their authority, and without malice or negligence, in Dayton v. Pease, 4 Ohio St. 94; Crawford v. Delaware, 7 Id. 464; Youngstown v. Moore, 30 Id. 143. GREEN V. RAMAGE. [18 OHIO, 428.] MORTGAGEE WHOSE LIEN EXTENDS OVER TWO SEPARATE LOTS, each of which has been mortgaged at subsequent times to different individuals, can not be compelled to exhaust his security out of the lot last mortgaged. Equity will, however, compel him to satisfy his debt out of the proceeds of both lots, in proportion to the amount each lot may produce. BILL in equity to compel the defendant Wilson, to whom the defendant Ramage had mortgaged two lots in the town of Zanesville, known as lots number 14 and 39, to exhaust his security out of lot number 39, before proceeding against the other. It appeared that, subsequent to the mortgage to Wilson, Ramage mortgaged lot number 14 to the plaintiff, and afterwards mortgaged the other to the defendant Hillier. Searl and O'Niell, for the complainant. Goddard, James, and Eastman, for the defendants. By Court, CALDWELL, J. If there were but the two mortgages on the property, Wilson's and Green's, Green would without doubt be entitled to the relief which he claims. In Story's Equity, vol. 1, sec. 633, the rule on the subject of marshaling securities is stated thus: "The general principle is, that if one party has a lien on, or interest in two funds for a debt, and another party has a lien on, or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund, in the first instance, for satisfaction, if that course is necessary for the satisfaction of the claims of both the parties." In this case, however, there are three parties interested. If Green should compel Wilson to exhaust lot 39 before he comes on lot 14, then Green will have the benefit of the fund arising from lot 39; although he took no security on it. But Hillier by this arrangement will be deprived entirely of his security on lot 39, although he took a mortgage on it. We think the rule can not be applied in a case of this kind. The principle is one established for the purpose of securing to parties the rights to which, upon the principles of natural justice, they are entitled. To deprive Hillier of his security in this way, would be manifestly unjust. When Green took his mortgage he had notice of the mortgage of Wilson, on lot 14. When Hillier took his mortgage on lot 39, he had notice only of the lien of Wilson, which was all the incumbrance on it. There was nothing connected with Wilson's lien, that was even calculated to put him on inquiry in reference to Wilson's mortgage on lot 14, because Wilson's liens on these two lots were created by separate instruments. But if Wilson's lien on the two lots had been created by a single mortgage, Hillier was not bound to notice the situation of lot 14, having nothing to do with it. We think, then, that justice between Hillier and Green requires that each should have the full benefit of his mortgage, and this can only be done by requiring Wilson to take his debt out of the proceeds of both lots proportioned to the amount that each lot may produce. The decree will be so entered. SUTCLIFFE v. STATE. [18 OHIO, 469.] MANSLAUGHTER AT COMMON LAW AND BY THE OHIO STATUTES CONSISTS in the unlawful killing of another, without malice, either express or implied. It may be either voluntarily committed, upon a sudden heat, or inadvert ently, but in the commission of some unlawful act. INDICTMENT UNDER THE OHIO STATUTE FOR MANSLAUGHTER NEED NOT ALLEGE that the killing was done without malice. INDICTMENT FOR MANSLAUGHTER WHICH CHARGES THE PRISONER WITH AN ASSAULT upon the person killed, and unlawfully discharging and shooting off at him a loaded gun, sufficiently shows that the prisoner was engaged in the commission of an unlawful act. VERDICT MAY BE RETURNED FOR MANSLAUGHTER, and a valid judgment rendered upon such verdict, under an indictment charging the prisoner with murder in the first degree. PIEA OF ONCE IN JEOPARDY CAN NOT AVAIL PRISONER, upon proof of a former conviction before a lawful jury, upon a good indictment, when such conviction has been set aside by the appellate court, on the prison. er's motion, for errors occurring on the trial. UPON TRIAL OF THE QUESTION OF FORMER CONVICTION, the original papers, and transcripts of the journals of the supreme court and of the common pleas, are admissible in evidence, instead of the record, when no formal record has been made. REVERSAL OF JUDGMENT AND VERDICT WHICH FINDS PRISONER GUILTY of manslaughter does not reverse his plea of not guilty. COURT HAS AUTHORITY TO IMPANEL A JURY to try whether a prisoner was standing mute obstinately, and if they should so find, to direct the plea of not guilty to be entered, and to proceed with the trial. VERDICT OF JURY MAY BE RECEIVED IN PRESENCE of the prisoner, although in the absence of, and without notice to, his counsel. MANSLAUGHTER. The opinion states the facts. H. Stanbery, attorney general, for the defendant in error. By Court, AVERY, J. Is the indictment good, upon which the prisoner has been convicted? It contained at first three counts, but at the trial the prosecutor having entered a nolle upon two of them, he proceeded against the prisoner only upon the third. As a former jury in the case had returned a verdict against him for manslaughter only, which was, in effect, a verdict of not guilty upon the two first counts; upon these it is quite clear the prisoner could not afterwards be put to trial. He could be prosecuted, if at all, only upon the count for manslaughter. His counsel urge that this third count is defective, and if it be found upon examination to be so, the judgment must be reversed. The objection taken to the indictment is, that it does not charge the defendant with the crime of manslaughter, or with any offense defined by our law. There is no common-law crime in this state, and we, therefore, look always to the statute to ascertain what is the offense of the prisoner, and what is to be his punishment upon conviction. The count under examination describes the crime of manslaughter at the common law; it is drawn after the approved forms adopted in the prosecution of such crimes, and is without defect as a common-law indictment. In deciding upon the objection raised, it will of course be proper to look at the crime of manslaughter as it existed under the common law. It is there defined in the following language: "The unlawful killing of another, without malice, either express or implied; which may be either voluntarily, upon a sudden heat, or inadvertently, but in the commission of some unlawful act:" 4 Bl. Com. 191. The word used as descriptive of the offense in the definition here given, is introduced into our statute, where it is denominated manslaughter, and where the entire description of the offense is embraced in these words, to wit: That if any person shall unlawfully kill another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of some unlawful act; every such person shall be deemed guilty of manslaughter: Swan's Stat. 229. It is evident that the legislature had in their view, while framing the enactment above quoted, the crime of manslaughter as well understood at the common law. They have adopted it in substance, and almost in form. If then the same rule were admitted applicable to an indictment upon a charge defined by statute, as upon a defense defined by the common law, there could be no objection to the present count. What is affirmed in this statute of manslaughter, of the character which this count was intended to reach, except that the slayer must be in the commission, at the time, of some unlawful act? The crime is declared to be complete "without malice," that is, where there exists no malice. Is it necessary to argue the negative form, that the act was done without malice? If there is in the indictment no averment touching the malice, will not the inference be necessarily drawn that the act was without malice? We think so. The same may be said of the other word, “unintentionally." It is claimed for the plaintiff in error, that there is no allegation in the count of the unlawful act designated in the statute. It was necessary to allege in the indictment that the prisoner was engaged in the commission of some unlawful act. And this allegation, it appears to the court, is distinctly made in that part of the indictment which charges the prisoner with an assault upon the person killed, and unlawfully discharging and shooting off at him a loaded gun. This sufficiently describes an unlawful act. And we are of the opinion that the count objected to is good, and charges the crime of manslaughter, as described in our statute. It may be further observed, that the statute defines and prescribes three descriptions of homicide: murder in the first, and in the second degree, and manslaughter. In the first, the act of killing is of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate some one of the higher crimes specified; in the second, the act is purposely and maliciously done, but without deliberation and premeditation; and in the third, the act constituting manslaughter is as above described. Now it is held, that upon a count for even the highest species of the crime, murder in the first degree, a verdict may be returned for manslaughter, and a valid judgment against the prisoner may be rendered upon such verdict. In that case, there is not a description of the offense, as it is found in the statute; but to sustain the proceeding, a rule of the common law is applied, and the count which describes the greater offense, is supposed to include the less. The court therefore find that there is no error in the form of the indictment. The plaintiff in error alleges that the second trial to which he has been subjected in this case, is in violation of that provision of the bill of rights in the constitution of the state, which declares that in criminal prosecutions, the accused shall not be twice put in jeopardy for the same offense. He sought to avail himself of the privilege before he was put upon his trial, upon the plea of not guilty, first by a motion to be discharged, and afterwards by the plea of former conviction. But the determination of the court was against him in both instances, and this is assigned as error. It is not claimed for the plaintiff in error that a conviction upon a defective indictment, when the judgment has been afterwards reversed, can be set up as bar to another prosecution. It is conceded by his counsel that in such a case the prisoner may be put again upon his trial. In such a case he says, according to the construction of all the courts, the prisoner never was in jeopardy. But he claims that by a trial before a lawful jury, upon a good indictment, and the finding of a verdict by that jury, the prisoner has been put in jeopardy, and can not, therefore, be again prosecuted for the same offense. It is not readily perceived how any real distinction can be drawn between the cases. In both it is but an error in the proceedings; in the first the error is found in the indictment; in the second the error is committed by the court, it may be in admitting or rejecting testimony, in charging or refusing to charge the jury, or in determining some other one of the various legal questions raised in the progress of the cause. If it be that when a party is convicted on a bad indictment for murder, he may be tried again because his life was not in jeopardy, it may with equal truth be said, under our system of laws, and since the allowance of bills of exceptions and writs of error in criminal prosecutions, he was not in jeopardy in case any other substantial error is found in the proceedings. For in this state any other error is as fatal as that which appears in the indictment, and as effectually secures him against the consequences of a conviction. The prisoner is held liable to be tried again upon the supposition that he never was in jeopardy. This upon principle, and |