MATHIS v. McCORD, 1 Ohio Ch. 647

Wright, J. If the plaintiff below relied upon the contract to keep up the fences, he should have brought assumpsit. If he relied upon the custom, or the injury resulted indirectly from the defendant’s acts, it was consequential, and he should have brought a special action on the case. In either event he could not recover in trespass. Was the proof as set forth in the bill of exceptions all that was given? This does not appear. Did the cattle do any injury? Was the accord made out? We cannot answer these questions from the record.

If other proof were offered, the error, if any, may have occasioned no injury to the plaintiff. If the record shows all the proof, the judgment was rightly for the defendant, for assumpsit or case was the proper remedy, not trespass— if all the evidence is not set out, the charge of the court may have been erroneous, but the record does not show the error, and we cannot presume that the court erred. The judgment is affirmed.