leaves them where it finds them. Suppose A should make this proposal to B: If you will give me one hundred dollars I will tell you where there is a thousand dollars concealed in the house of C, and I will also tell you how you can safely enter C's house and carry away this money without detection.' B accepts the offer and pays A the one hundred dollars, who then tells B where the money is concealed and gives the directions as he had promised. B then breaks into the house of C to steal the money, but finds none. A knew there was none, but had falsely pretended there was, to get one hundred dollars from B. Now here is a false pretense, made with intent to defraud, about what is claimed to be an existing fact, which false pretense is the sole inducing cause of the payment of the one hundred dollars. All the ingredients, as usually stated, of the crime of false pretense are present. Yet to say that a court of justice would sit to try such a cause, and that A can be indicted and tried and perhaps convicted, with B for a prosecuting witness, for a false pretense made in pursuance of such a criminal conspirancy would shock the natural sense of justice in rightly constituted minds. To so hold would to a certain extent throw around crime the protection of the law. For if in such a case one criminal can appeal to the law against another, it puts it in the power of one criminal to hold the law over the head of another in furtherance of a joint criminal design. I do not think such can be the law of Ohio."

The question responded to in the foregoing instruction seems to be new in this state, and the cases elsewhere seem to be conflicting. Some cases are collated in the American and English Encyclopedia of Law vol. 7.

In New York and Wisconsin the law seems to be as stated in the instruction. People v. Stetson, 4 Barbour, 151; State v. Crowley, 41 Wis., 271. In Massachusetts, Indiana, Michigan and Texas cases are cited as opposed. Perkins v. State, 67 Ind., 270; People v. Heussler, 48 Mich., 49; May v. State, 15 Texas Appeals, 45. The Massachusetts, Indiana and Texas cases when analyzed seem to be distinguishable from the Michigan case, which alone seems fully to oppose the New York and Wisconsin cases.

The matter under consideration by the Highland county grand jury which induced the question is understood to be as follows: G and B, two "sprinters," had agreed to run a footrace, and had bet a sum of money on the result, and put up one hundred dollars each forfeit money. G thus represented to one K, who was one of his backers in the race, that there was a private arrangement between himself and B, the other "sprinter," that he (G) was to run the race, and showed K letters from B to that effect. By this and other devices K was induced to believe that G would certainly win the race, and to bet largely on G. But instead of G winning the race B won it, and that had been the arrangement. G and B divided the money won. B was arrested and bound over to court for the false pretense of representing that G was to win the race, and thereby inducing K to bet and lose his money.

384

Cameron, Adm'x., v. Heister and Heister.

DAMAGES FROM A SKY ROCKET.

384

[Superior Court of Cincinnati, General Term, November, 1889.] ANNA CAMERON, ADM'X, V. JOHN HEISTER AND MICHAEL Heister. 1. Where suit is brought against a father and minor son, for damages sustained by the wrongful acts of the son, and the circumstances surrounding such wrongful act, tend to show that the father encouraged, approved and promoted the act, even though the evidence offered by plaintiff may not be sufficient in the mind of this court, to establish such complicity on the part of the father, yet it is evidence that ought to be submitted to the jury, and it is error to enter judgment of non-suit as to the father.

2. The discharge of fire rockets on the streets of a populous city is a nuisance per se, and all concerned in the commission of such nuisance are liable for any damage which may be occasioned thereby.

3. When the city council has by ordinance made the firing of rockets, weighing more than one pound, a misdemeanor punishable by fine or imprisonment, this is not to be regarded as a license to discharge a rocket of less weight than one pound, without rendering any party liable, as at common law, for the commission of a nuisance and the consequences thereof.

NOYES, J.

The plaintiff in this action sought to recover damages for the death of her husband, Robert Cameron, alleged to have resulted from injuries received on the night of July 3, 1889, while in his dwelling at Court and Linn streets, Cincinnati, Ohio, opposite the residence of defendants, through being struck by a rocket discharged on the pavement in front of the Heister residence by Michael Heister, a minor. It is also alleged that John Heister, the father of Michael, authorized, directed, encouraged, and permitted the discharge of said rocket, for the purpose of sport and without necessity, at the time and place named.

On the trial before the judge at special term and a jury, at the close of the testimony on behalf of plaintiff, the court granted a motion to non-suit and arrest the testimony as to defendant John Heister, and an order was entered dismissing him from the action, to all of which plaintiff at the time duly excepted. Thereupon a juror was withdrawn, and the cause continued as to defendant, Michael Heister.

It is here claimed that there is error in the record and proceedings in this case, in the action of the court below in arresting the testimony from the jury as to the defendant John Heister, and dismissing him from the action.

The evidence offered by the plaintiff is, in substance, as follows: John Heister kept a saloon and residence at the southeast corner of Court and Linn streets. His family consisted of his daughter, aged fifteen, and the defendant. Michael, aged eighteen. The daughter was housekeeper for the family, her mother being dead, and William, who was employed away from home during the day, assisted his father in the saloon at night. On the night of July 3, 1888, both the father and son were present at the saloon and residence. Some time during the evening, the son took some money from the money drawer, went to a grocery, and bought some fireworks, including fire crackers and rockets, brought them to the saloon of his father and laid them down in a conspicuous place. The father was in and out the whole evening. Abort half past eleven o'clock, the father said to the son, you can go out now and enjoy yourself. The saloon was brilliantly lighted and decorated.

Superior Court of Cincinnati.

384

The daughter had remained up, as though expecting some kind of entertainment. About the hour named, the daughter took a chair to the pavement in front of the house, and it was placed in position by her or her brother, and, thereupon, the brother placed the rocket on the chair and discharged it, it entering the window at which Cameron was seated, striking him on the side of the head. John Heister had been sitting in front of the saloon just before the discharge of the rocket, which it is claimed killed the plaintiff's intestate.

Taking all these circumstances together, can it be said that there is not a scintilla of evidence tending to show that the discharge of the rocket by the son was with the knowledge, consent and encouragement of the father? While we do not say that the evidence offered by the plaintiff was sufficient to prove the co-operation of the father, we are of the opinion that there was enough to warrant its submission to the jury, and that the court erred in the judgment of non-suit as to defendant John Heister.

Another important question is raised in this case, namely, as to whether or not a discharge of fireworks on the public streets of a municipal corporation is a nuisance per se, so that all concerned in the commission of such nuisance are liable for any damages which may be occasioned thereby. We are of opinion that it is, and the fact that the city council has passed an ordinance making the discharge of rockets weighing more than one pound an offense punishable by fine or imprisonment, is not to be regarded as a license to fire a rocket of less weight, without rendering the party liable, as at common law, for the commission of a nuisance and the consequences thereof.

We think the petition of plaintiff states a cause of action, and that the evidence offered by the plaintiff is in conformity therewith, and sup ports the same.

Judgment of non-suit as to defendant John Heister is reversed, and cause remanded.

TAFT and MOORE, JJ., concur.

Wm. H. Pope, for plaintiff.

J. J. Glidden and A. C. Grube, for defendants.

421

LICENSE FEES.

[Hamilton Common Pleas, December, 1889.]

CINCINNATI (CITY) V. F. BEuHausen.

An act of the legislature (80 O. L., 129) provided for a license fee to be paid by the owners of vehicles using them on the streets, and that for non-payment of such license fee the delinquent might be arrested and fined or imprisoned, or both, but made no other provision as to the manner in which such license fee might be forcibly collected.

Held, that the city might maintain a civil suit, as for debt, for the collection of such license fees.

MAXWELL, J.

The plaintiff alleges, in his petition in the first case, that during the year 1886, the defendant was the owner of, and used on the streets of the city, one four-horse wagon, one three-horse wagon, and one two-horse

421

City of Cincinnati v. Beuhausen.

cart, and that, under what is known as the Russell License Law, 80 O. L., 129, 81 O. L., 78, there became due to the city from him as fees $45.00, with a penalty of two per cent. per month thereon. The same allegations are made in the second case, for the year 1887. The defendant filed a general denial in both cases, but when the cases came on to be tried, admitted the ownership and use of the wagons, but claimed, as matter of law, that the fees under the Russell Law could not be recovered in a civil suit, or, in other words, that these actions cannot be maintained, so that the cases were heard substantially as if upon demurrer, on the ground that the court had no jurisdiction.

The act under which the suit is sought to be maintained was passed April 16, 1883, and is entitled "An act to provide a license on trades, business and professions carried on in the cities of the first grade of the first class, and providing for the enforcement and collection of fines and penalties for carrying on business without license, and for other purposes." The act has forty-five sub-sections. Sub-section 2 provides that any person who shall violate any of the provisions of the act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than $1,000.00, nor less than $50.00, or by imprisonment for not more than six months, or both. Sub-section 9 provides that all licenses which shall become due on January 1 or July 1, shall be considered delinquent if not paid within fifteen days thereafter, and for every month or fraction of a month thereafter a penalty of 2 per cent. shall be added, which shall be collected in the same manner as the license.

Sub-section 12 provides that the conviction and punishment of any person for transacting business without a license, shall not excuse or exempt such person from the payment of any license due or unpaid at the time of such conviction. Sub-sections 13 to 37 both inclusive provide for the licenses to be paid by various occupations, sub-section 29 providing, among other things, that a two-horse wagon shall pay $10.00, a three horse wagon $15.00 and a four-horse wagon $20.00. Sub-sections 38 to 45 both inclusive provide for the disposition of the money received from licenses, and for the manner in which the books shall be kept. Sub-section 38 provides that all moneys received for license from vehicles of all descriptions, shall be placed to the credit of the street repairing fund, and that all other moneys shall be placed to the credit of the general fund.

It may be noted here that the fines levied and collected in the police court, for non-compliance with the act, would be paid into the city treasury, not into any particular fund. R. S., 1807.

Sub-sections 19, 29 and 36 of the act were amended March 24 and 25, 1884. 81 O. L., 71 and 78, but not so as to affect the question under consideration.

No provision is made in the act for collection of these licenses by civil suit, and, that being the case, it is contended by counsel for the defendant that the only remedy provided for non-payment of the license is that afforded by sub-section 2, above, and that a civil suit to recover the license cannot be maintained. As it has been heretofore decided, by one of the judges of this court, that a person can not be arrested after the expiration of the year during which the license accrues, for nonpayment of the license of that past year, if the contention of counsel for the defendant be correct, the city is without remedy respecting the license fees set out in the petitions in these cases.

The first cases, upon kindred subjects, in this state, are reported in 8 Ohio, 63, sub nom. State v. Hibbard and State v. Proudfit, where actions of debt were maintained, one against a lawyer for a tax assessed upon him as an attorney and counsellor at law, and the other against a physician. Judgment for the plaintiff in both cases. These cases were brought under the act of February 7, 1825, 2 Chase, 1471, which expressly provided that an action of debt might be maintained in the name of the state of Ohio, if the tax was not paid. This act was amended February 22, 1830, 3 Chase, 1565, and the amending act provided that such taxes should be collected as other taxes. A similar case appears in the 5 Ohio, 14, State v. Gazlay, in which the statement was made in the argument of counsel that it arose under the law of 1825. Judgment was again given for plaintiff.

In the City v. Buckingham, 10 Ohio, 257, the city council had passed an ordinance establishing a license fee of twenty-five cents per day for use of market space by a vehicle, and had further provided that refusal to pay the fee should make the delinquent liable to pay the sum of $5.00, with costs of suit, to be recovered before the mayor. This form of suit was upheld by the Supreme Court.

In the City v. Bryson, 15 Ohio, 625, the city had passed ordinances establishing a license fee for drays, of $3.00, and providing that upon refusal to pay the delinquent should be liable to a fine of not more than $10.00 and costs. Upon complaint, Bryson was fined $5.00 and cost. This was affirmed by the Supreme Court.

The case of Baker v. City, 11 Ohio St., 534, though growing out of a licensing ordinance, did not involve any questions analogous to those under consideration.

In the case of the Cincinnati Gas Light & Coke Co. v. State, 18 Ohio St., 237, the legislature had passed an act providing for the appointment of an inspector of meters, etc., and had provided that the gas companies should pay, each, a proportionate amount of his salary, and that, in case of default, the treasurer of state should institute an action against the delinquent for its proportion with six per cent. interest.

It thus appears that the question under consideration has not arisen in the Supreme Court of our state, nor has it, so far as I have been able to find, arisen in any of the lower courts. Authorities may be found in other states, however.

Two distinct classes of cases have come up for consideration in the courts of the various states:

I. Cases where the statute affords a remedy, or makes some provision, though it may be an inadequate one, for the collection of license fees or taxes.

II. Cases where the statute provides no remedy.

In the first class of cases, many authorities may be found that hold that where the statute provides a mode of recovery, that mode only can be resorted to, and that if the remedy be in the nature of a distress, or other summary process, an action of debt will not lie. This is suggested, though not advocated, in Dillon on Municipal Corporations, sec. 817. It is so held in the following cases: 6 Mass., 44, where it is said, "No action lies for the recovery of taxes, except where by law an action could be brought in the name of the collector." 26 Vt., 482, where it is said, "The assessment of taxes does not create a debt that can be enforced by suit." 26 N. J. L., 398, where it is said, "Payment of taxes can not be enforced by an action of debt; where the statute provides another method