Page:Federal Reporter, 1st Series, Volume 5.djvu/900

 888 FEDBBAL EEPOBTER. �Section 4 of the act of twelfth of April, 1858, (Swan & Clitchfield, 1155,) in force when these proceedings were had, provides : �"In ail causes pending in the court of conimon pleas, or either of the superior courts of this state, either party shall have the right to excepfc to the opinion of the court on a mo- tion to direct a nonsuit to arrestthe testimony from the jury; and ail cases of motion for a new trial, by reason of any sup- posed misdirection of the court to the jury, or by reason that the verdict, or, in case the jury be waived, that the finding of the court, may be supposed to be against law and evi- dence, 80 that said case may be removed by petition in error." It was held by the supreme court (Spangler v. Brown, 26 Ohio St. 389) that underthis statute it was neces- sary that a motion for a new trial should have been made and overruled, and exceptions taken thereto, before they could be asked to reverse the judgment on the ground that the court erred in its finding upon the question of actual fraud. This statute seems to be unambiguous in its terms, and it had been in existence for four years; and the knowl- edge of its provisions should ordinarily and reasonably have been possessed by one who undertook to conduct legal pro- ceedings of that character ; and the ignorance of or failure to apply snch knowledge by the defendant was negligence. �This brings us to the consideration of the more important question growing ont of the peculiar facts of this case : Did damage resuit to the plaintifiE from this omission— this negli- gence upon the part of the defendant ? �It must be conceded that if the plaintiff suffered no loss or damage by this act he would have no right of recovery. Loss and damage to him is the foundation upon which his action rests; without this the action must fail. Do the averments of this petition, when taken altogether, show damage re- sulted to the plaintiff from this negligence ? I know that the general averment of the petition so alleges, but the other averments of the petition show that ail the issues as to the fraudulent character of the conveyance, and the relief prayed for, had been passed upon by the district court, and had ail ����