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    William Hicks v. William Person.
    Where exceptions are taken to any decision of the court, during the progress of a ease, the bill of exceptions must be signed, and sealed during the term in which the decision excepted to is made. If signed and sealed subsequent to the close of the term, it will not be considered, by the supreme court, as constituting any part of the record.
    Where a writ of error is prosecuted in the supreme court, to reverse a judgment of the court of common pleas, on the ground that the court erred in overruling a motion for a new trial, because the verdict was against evidence, all the evidence before the jury, on the trial of the cause, must be brought before the supreme court by bill of exceptions. It must be embodied in the bill of exceptions, or in some manner so made a part of it, that there can be no doubt that the supreme court has precisely the same evidence before it which was before the jury.
    Where signatures of a party are before the court, which are admitted to be genuine, experts may be called to give their opinion, upon comparing them with the signature in controversy, whether it is genuine.
    This is a writ of error to tbe Court of Common Pleas of Hamilton county.
    The action below was assumpsit, tbe declaration containing a special, and tbe common counts.
    Tbe special count was, in substance, that, in consideration that plaintiff, at request of defendant, had furnished lumber to Wingard, to be used in building tbe steamboat Fort Wayne, belonging to defendant, be made an obligation of which tbe following is a copy:
    “ William Persons, I will see you paid for the lumber A. Wingard has received, in notes at four and eight months, after the boat is finished. Cincinnati, November 1st, 1844.
    (Signed) “ William Hicks.”
    The boat was finished about the 16th of January, 1845, but defendant has refused to execute the notes, or pay the money.

      The case was first tried at the November term, 1346, when a verdict was rendered for the plaintiff, which was afterwards, on motion, set aside by the court, and a new trial ordered.
    It was again tried at the November term, 1849, and another verdict returned for the plaintiff. A motion was then made for a new trial, and the following reasons assigned:
    1. The verdict is against law.
    2. The verdict is against the evidence.
    3. The case shows a clear sale of lumber to Wingard, with no evidence of an original undertaking on the part of Hicks.
    4. The jury wholly disregarded the instructions of the court.
    5. The court erred in refusing to give numbers .2, 3, 6, 9, and 11 of instructions asked.
    6. The court otherwise erred in charging the jury.
    7. The court erred in admitting comparison of hands by experts, of documents which otherwise the jury were not entitled to see.
    8. The court erred in ruling out what Hicks said in his affidavit.
    9. The court erred in ruling out the paper marked D, allowing the jury to have the same for comparison of hands.
    This motion was overruled, and the case continued till the next term, when judgment was entered, and the following bill of exceptions was signed and sealed:

      “ Be it remembered, that on'the trial of this case, the plaintiff, to maintain .the issue on his part, proved that the said bill of, marked “ E ” on the back, was a true bill of lumber, by him delivered to Adam Wingard.
    On cross-examination, the witness proved that the bill was in the handwriting of the plaintiff, and an exact copy from his books.
    (Here insert it.)

      He also offered and read the deposition of John D. Murray, marked “ G” on the back, and the defendant objected to so much of the witness’s answer, to the first question of the plain t-iff, as is in the following words, viz:
    ‘ One day, Wingard and I went up to Mr. Persons’ to get some lumber that he wanted to-buy of Persons. Mr. Wingard asked him about some lumber that he wanted to buy of Persons. He said he wanted to buy the lumber, and give him, Persons, Capt. Plicks’ obligation to pay'for it.’
    The court overruled the said objection, to which decision of the court the counsel for the defendant excepted, and prayed that his exception be allowed, which is done.
    The counsel for plaintiff then offered the deposition of Adam Wingard, marked “ S ” on the back, to the reading of which defendant objected; but the same-was read by consent of counsel, subject to said objection, which was sustained, and said deposition afterwards ruled out by the court.
    The plaintiff then called Robert Warden, a witness, who swore that he had seen the defendant write but once, and that was when He signed his name to the bond, in this case; but that he took no particular notice of his signing his name, and, that he would not feel much confidence in his opinion; but he believed the signature to paper marked’ “ A,” was genuine.
    On cross-examination, he said he would not state this from his general knowledge of defendant’s handwriting.
    The plaintiff then offered Lysle Lodwick, a witness, who was admitted to be a teller in a bank and an expert, who was requested' to examine the signatures to the contract marked “ E also signatures to the affidavits “ H,” “ J,” and “ K,” on the back ; also the signature to the bond of Hicks in the case; also the name of William Hick, in paper marked “ John Brinkman W ” on the back, ' and compare themwitb the paper marked “ A ” on the back, and give his cpinion of the genuineness of the same, to which counsel for defendant objected, and the court overruled the said objection; to which ruling the counsel for' defendant excepted, and prayed that his exception be allowed, which is done.
    The witness, on examining said paper, said he thought they were enough alike to be written by the same hand; and he thought they were so written; that there was not a greater difference in them than many persons made writing under different circum stances; that if he had any one of these signatures before him in his possession, knowing -it to be genuine, he would pay a check in the handwriting of either of the others.
    On cross-examination, he said that there was a difference between the Wm. in the paper in question, arid the balance cf them, which was plain; the line and the dots under the m. were not there as in most of the others. Also that there was a difference in the commencement of it, where the pen is' firso put upon the paper, to make the first upward stroke, in the paper in question, which was not in any of- the -rest; but that the general features of the signatures were the same; that he had no knowledge of the defendant’s hand, never having seen him write.
    The plaintiff then examined upon the 'stand L. J. Cist, and who was admitted to be the teller in a bank and an expert, and asked him the same question, under the same objection, ruling, and exception, as in the case of the witness above.
    The witness stated that the signatures were all sufficiently alike to be written by the same person; that he believed that they were written by the same hand; that if he had one of them in his possession, and it was admitted to be genuine, he should pay a check with the signatures of the other papers attached to it.
    On cross-examination, the witness stated that he was not acquainted with Wm.,Hicks or his signature; that he had never seen him write, and that he could not tell with exact certainty as to these papers.

      The plaintiff then called W. R. Merton, who was admitted to be an expert, and asked him the same question as was asked the two preceding, under the same objection, ruling, and exception. After examining said signatures -he said, that the one to the paper in question was different from any of them ; that it differed in the general character; that the Wm. was different; that the style of the Wm. was a different style.
    On cross-examination, he said he had been accustomed to examine signatures as a teller in a bank for the last twelve years.
    On re-examination, he said that there were differences in the signatures of each hand, but that it was the general character they went by.
    (Here insert the'papers.)
    The plaintiff then offered in evidence paper marked “ A,” to the reception of which the defendant objected, and the court overruled the objection; to which -ruling of the court the counsel for defendant excepted, and prayed that his exceptions be allowed, which is done.
    The plaintiff then called-Morgan, his clerk, who testified that he presented the bill of lumber to the defendant on the. day indorsed thereon by him, and demanded the notes promised in paper “ A,” but defendant refused to give them, saying he was under no obligation to do so.
    Here the plaintiff rested his case, whereupon the defendant moved for a non-suit, which motion the court overruled; to which overruling the defendant excepted, and prayed that hi's exception be allowed, which is done.
    The defendant then moved the court to rule out paper marked “ A,” under the first count in the declaration, which motion the court overruled ; to which overruling the counsel for defendant excepted, and prayed that his exception be allowed, which is done.
    The defendant then offered and read the depositions of Geo. S. M. Kiernan, Eertinand C. Brockman, Joseph Scott, and Clifford G. Wayne, being in one batch, marked “ L” on the back.

      Also, the deposition of Joseph Scott, marked “M;” also, deposition of said Scott, marked “ N” on the back; also, deposition of Peter Conway, marked “ 0” on the back ; also, deposition of Harmon M. Florer, marked “ P” on the back ; also, deposition of Joseph Roberts, marked “ Q” on the back; also, offered and read in evidence deposition of John Brinkman, marked “ T” on the back, which was afterward ruled out with Adam Wingard’s deposition.
    The defendant’s counsel also offered and read in evidence papers marked “ B,” “ C,” “ D No. 2,” and “ E,” on the back
    The counsel for the defendant then examined Charles Fox, a witness on the stand, who testified that when paper marked “ D,” being an assignment of Wingard’s contract to plaintiff, was drawn up, it was to secure him payment for the lumber Wingard had got of him; that the parties were at his office several days prior to drawing up the same, about the matter; that during the whole of this time the plaintiff set up no claim against defendant, or against him or Scott; that he claimed a lien on the boat, the Fort Wayne, for the lumber Wingard got of him; that he, witness, told plaintiff he had no such lien, but was only entitled to such lien to the amount of the money due from Hicks & Scott for building said boat; and that paper “ D” was drawn up to secure the same to plaintiff; that so far as he ever heard or knew, and during the whole negotiation, the plaintiff never claimed anything against Hicks, or Hicks & Scott, except tha-t he had a lien oil the Fort Wayne for the lumber in question. He further said, that his impression was that the first he ever saw or knew of paper “ A,” was that plaintiff afterward called on him to employ him in the suit against Hicks, and he declined, as he generally acted for the other party, and could not do so without first seeing him. He could ,not state as to the first time he ever saw the paper with certainty, but that was his impression.
    The defendant then offered and read the affidavits J and K, the signatures to which had been offered for comparison, to which plaintiff objected; but the court permitted them to be read to the jury.
    The above being all the evidence in the case, and the court having charged the jury, and among other things charged that the deposition of Wingard they should disregard, and also the deposition of John Brinkman, and all testimony intended simply to contradict Wingard should be disregarded.
    That the affidavits of Hicks were a peculiar species of testimony that should be taken with many qualifications, being testimony of a party to the suit, but that his statements were all in evidence, and should be considered by the jury, and so far as they believed them to be true, they should act on them, and give them, such weight as they might, from all the circumstances and facts in the case, think them entitled to.
    The court having charged the jury, the counsel for the defendant requested the court to give in charge the following •charges as law, being Nos. 1 to 11 inclusive, which are in the words following :
    (Here insert them.)
    The court gave in charge as asked, Nos. 1, 4, 5, 7, 8, and 10, and refused to give Nos. 2, 6, 9, and 11. They also refused to give No. 3, saying that the question could not arise in this case and under the pleadings; to all which refusals to charge the counsel for the defendant excepted, and prayed, that his exceptions be allowed, which is done.
    The jury having found a verdict for the plaintiff, the counsellor the defendant moved the court to set aside the same and grant a new trial, and filed the following reasons, marked “ V:”
    (Here insert them.)
    The counsel also filed, under his motion for a new trial, the following affidavits, marked “ R,” “ U,” and “ T” on the back :
    (Here insert them.)

      The court overruled the motion for a new trial, to which de cisión of the court the defendant by his counsel excepted, and prayed that this, his bill of exceptions, be signed, which is done, and ordered to be made part of the record.
    The counsel for defendant then filed their motion in arrest of judgment, and the same was heard, and the court overruled said motion; to which overruling the counsel for defendant excepted, and prayed that this, their bill of exceptions, be allowed, which is done.

      Instructions ashed by the defendant.-

    1. That the deposition of Wingard is incompetent, and must be disregarded by the jury.
    2. That the paper marked “ A,” and described in the first count of the declaration, is not admissible under that count, and so far as that count is concerned, must be disregarded.
    3. That said paper is not binding as a guarantee, because it does not contain upon its face a sufficient consideration.
    4. That even if the signature be genuine, and the consideration sufficient, yet if the paper was fraudulently procured from Hicks, or procured from him for any other purpose, the plaintiff cannot recover on the same.
    5. That the evidence will not authorize a recovery under the common counts.
    6. That the plaintiff cannot' recover unless he prove a specific promise from Hicks to Person to pay for the lumber before any of it was delivered, and that the delivery was in consequence of that promise, and that a promise by Hicks and Scott will not meet the averments in the declaration.
    7. That the papér “ A ” cannot be received under the common counts in the declaration.
    8. If paper “.A ” be valid, and the genuine signature of Hicks, yet the plaintiff cannot recover on the same, unless he prove expressly that the lumber was delivered to Wingard upon the request of Hicks, and with an understanding that he should be liable for it.

      9. If in the sale of lumber, credit was given by Person to Wingard for this lumber, and he was bound to Person for it, plaintiff cannot recover in this suit.
    10. If Person charged the lumber to Wingard on his books, that would be prima facie evidence that he trusted him, and held him liable for it.
    11. We ask the court to instruct the jury, that plaintiff cannot recover unless he prove that Wingard had authority to make the precise contract which it is pretended that he did make, that is, to pay in notes, at six and eight months, and that this authority was given before Wingard purchased the lumber.”
    The court did not give the 3d instruction as asked, but charged the jury, that no recovery could be had on the paper “ A ” as a guaranty, from the state of the pleadings, it having been declared on as an original, independent undertaking.
    The court did not give No. 9 as asked, but charged the jury, that if the credit was given Wingard solely, and he alone bound in the first instance, no recovery could be had against Hicks, although he might afterward have promised to pay Wingard’s liability; that it was necessary that Hicks should be originally bound, either solely or jointly with Wingard, to make him liable in the present suit.
    The court refused to give charge No. 11, and charged the jury that if Hicks were originally liable, and in consideration of such liability afterward agreed to pay in six and eight months, he would be liable, although no time of payment was expressed or fixed iii the original contract; to all which ruling and refusals, etc., the counsel for defendant excepted, and prayed that their exception be allowed, which is done, and ordered to be made part of the record in this case.
    The errors assigned are:
    1. The court erred in admitting that portion of John D. Murray’s testimony objected to by the counsel below.
    2. The court erred in permitting experts to give their opinion of the genuineness of paper marked A, by comparing it with paper marked E.

      3. In permitting experts to give the same opinion by comparing the signature to paper A, with signatures to papers marked H, J, and K.
    4. In permitting experts to give the same opinion by comparing the signature to paper A, to the signature attached ■ to the bond.
    5. In permitting exporte tc give the same, opinion by comparing the signature to paper A, with the name of William Hicks 'in the paper marked VI.
    6. In permitting' Lyric Lodwick, L. J. Cist, and W. R. Morton to certify under the, circumstances.
    7. In permitting paper A to go to the jury.
    8. In not granting a non-suit, and in overruling the motion therefor. •
    9. In not ruling out paper A under the first count.
    10. In refusing to give charges Nos. 2, 6, 9, and 11, asked by defendant below.
    11. In refusing to give No. 3, as asked by defendant below.
    12. In not granting a new trial.
    13. In rendering a judgment for the plaintiff below.

      Walker & Kebler, and T. D. Lincoln, for plaintiff in error.

      Groesbeck Thomson, and William Johnston, for defendant.
   Hitchcock, C. J.

The record shows that this case must have been contested most obstinately in the court of common pleas, at every step of its progress. The action was assumpsit, the declaration containing a special and the common counts. The suit was commenced by capias in May, 1845, and a trial had at the November term of the court, 1846, and a verdict was returned for 'the defendant in error, the plaintiff below. On motion of defendant below, this verdict was set aside and a new trial ordered. At the November term, 1847, another trial was had, and another verdict returned in favor of the plaintiff below. During the progress of this trial, sundry exceptions were taken to decísions of the court, but no bill of exceptions tendered or signed. After verdict, a motion was made by the defendant below, now plaintiff in error, for a new. trial, because, as claimed, the verdict was against law and evidence, and because of the errors of- the court in the progress of the trial.

This motion was made on the 22d of December, was overruled on the first of January following, and a judgment rendered on the verdict. Thereupon a bill of exceptions was tendered to the court, but for some cause was not signed.’ The court, however, vacated the judgment, and continued the case on the motion for a new trial. At the next succeeding term of the court, in March, 1848, this motion for a new trial was overruled, and judgment entered on the verdict. After which the bill of exceptions now before this court was signed, and filed on the 18th of March, 1848.

Erom this statement it will be seen, that all the errors complained of as having intervened, with the single exception of the error in overruling the motion for a new trial, were committed at the November term of the court, 1847 ;■ but the bill of exceptions calling the attention of this court to those errors, was not allowed until a subsequent term. A question then arises whether this court, under these circumstances, can take any notice of these alleged errors.

The law regulating the allowance of- bills of exceptions is found in the act of March 12th, 1846, “ to regulate the judicial courts and the practice thereof.” (Ohio L. vol. 43, p. 80.) In the second section of this act it is provided, that “ in all cases pending in the court of common pleas, or in the superior court of Cincinnati, either party shall ha-ve the right to ex cept to the opinion of the co-urt, on a motion to direct a non suit, to arrest the testimony from the jury, and also in all cases of motion for a new trial,'by reason of any supposed misdirection of the court to the jury, or by reason that the verdict may be supposed to be against law or evidence, so that such case may be removed by writ of error ; and when a party to a suit, in either of the aforesaid courts, alleges an exception to any opinion, order, or judgment of such court, it snail be the duty of the judges of such court, concurring in such judgment, order, or opinion, if required by such party, during the progress of the case, to sign and seal a bill containing such exception or exceptions before the case proceeds; or, if the party consent, the signing and sealing such bill of exceptions may be suspended until the trial is closed, but said bill of exceptions shall be signed and sealed during the term; and such bill of exceptions, when signed and sealed, shall, if the pa-*y desire it,, be made a part of the record in such suit.”

By the provisions of this section, the party alleging an exception, may, at his election, have the bill signed and sealed during the progress of the trial. Or, if he consent, the signing and sealing may be suspended “ until the trial is closed;” but at all events it must be signed and sealed cluring the term.” As to the propriety, nay, as to the absolute necessity of this rule, there can be no controversy. The whole matter should be closed while all the facts and circumstances are fresh in the recollection of the counsel and the court. To postpone it to a subsequent term would, or might, be a fruitful cause of error and mistake. But even if there were doubt as to the policy of the rule, there can be no doubt as to the positive jn-ovisions of the law.

Bearing in mind that this trial was had at the November term of the court of common pleas, 1847, and that the bill of exceptions was not signed, sealed, and filed during that term, but at the next succeeding term, we will now ascertain what exceptions were alleged at the said November term. The fii-st exception was to the action of the court in overruling the objection of the counsel for. the defendant below, to part of an answer given by the witness Murray, to a question propounded by the plaintiff. Several exceptions were alleged to the. action of the court in receiving other evidence, although objected to by defendant below. After the evidence on the part of the plaintiff below was closed, the defendant moved the court to direct the plaintiff to become non-suited. This motion was o /er ruled, and to this decision of the court exception was taken.

The defendant having offered his testimony, and the court having charged the jury, the defendant’s counsel requested the court to instruct the jury further, in eleven different particulars. The court complied in part, refused in part, and in other particulars charged as requested, with some modifi cations. In every particular, where the charge of the court did not comport with the request of defendant’s counsel, exceptions were alleged.

Here the trial “ was closed,” so far as the parties were concerned, during which many exceptions were taken,'but none of them were reduced to form, and “ signed and sealed ” by the members of the court, until the next subsequent term.

Under these circumstances, we are of opinion that we cannot with propriety interfere with the judgment of the court of common pleas for any error supposed to have been committed by that court, in its action in the November term, 1847. But as the record shows that a bill of exceptions was presented to the court at that term, which was not signed and sealed, and that the cause was continued, among other reasons, for the purpose of giving time to examine, and to sign and seal said bill, we have deemed it proper to look into the record, and ascertain whether there was in fact any error committed by the court.

Having this object in view, it will be necessary to refer more particularly to the bill of exceptions than has hitherto been done. Before doing this, however, it will be proper to state more particularly the nature of the controversy between the parties. The action, as before stated, was assumpsit, and the plaintiff was seeking to recover compensation for lumber, which had been by him delivered to one Wingard, and .had in part at least been appropriated by Wingard in the construction of a cabin upon the steamboat Fort Wayne, which at the time was being built for the plaintiff in error, and a man by the name of Scott. The defendant in error plaintiff below, based his claim in part, or principally, upon a written memorandum, in the following words:

“William Person: — I will see you paid for the lumber A. Wingard has received, in notes at four and eight months, after the boat is finished.
(Signed) “ Wm. Hicks.”

In the special count in his declaration, the plaintiff declared, “in consideration that the said Person had furnished one Adam Wingard, at the request of said Hicks, large quantities of lumber of great value, to wit, 01,000, to be used, in part or in whole, in the erection of the cabin of a steamboat called the Fort Wayne, belonging to said Hicks, in whole or in part, the said Hicks made ” the before recited obligation in writing, ete.

This writing is referred to in the bill of exceptions as marked letter A. .

On the trial of the case, the plaintiff proved the delivery of the lumber, and on his books it stood charged to Wingard.

The plaintiff then offered in evidence the deposition of John S. Murray. The first question propounded to the witness was: “Have you at any time heard Captain Hicks, the defendant, say any thing about paying Mr. Person, plaintiff, or securing to him the pay for the lumber, delivered by Person, the plaintiff, to A. Wingard ; if so, state what Captain Hicks said about it ? ” To this question the witness answered: “ In the first place, I did Mr. Wingard’s hauling, and likewise for .other people. This was in the summer of 1844. One day Wingard and I went up to Mr. Person’s to get lumber. Mr. Wingard asked him about some lumber that he wanted to buy of Person. He said he would buy the lumber and give to him, Person, Captain Hicks’s obligation to pay for it. Some time late in the summer of the same year 1 saw Captain Hicks in this city, at the landing, and I asked him if he had been up to the boat, and he told me he liad. I asked him what he thought of it. He said that he liked it much; that Wingard was making a first-rate job of it. He went on then to state that Wingard was a very fair man, and was getting along prosperously, and to help him along he, Hicks, had given him his obligation for a thousand dollars to pay for lumber, that he, Wingardj had purchased of Mr. Person, or in other words, that he, Wingard, had got the lumber to build the boat for Captain Hicks of Mr. Person, and that he, Captain Hicks, had given his obligation to pay for it.”

The counsel for defendant objected to the first part of this answer, or to so much of it as related to the purchase of the lumber by Wingard, and his promise to pay for it in the note of Hicks. The court, hoivever, overruled the objection, and permitted the entire answer to go to the jury. This was excepted to and complained of as error. It will be seen that the object of the plaintiff was to show that the lumber had been furnished to Wingard at the request and upon the credit of Hicks. That part of the answer which was objected to, shows at any rate that the name of Hicks was used as the person whose note was to be given for the lumber, and it might have, been upon this assurance that the credit was given. So far, there was nothing to bind Hicks; but if his conduct afterward was such as to raise a reasonable presumption that the assurance was given by his authority, he must be bound by it. Taking the entire answer together, we are not prepared to say that the court erred in permitting it to go to the jury.

The next exception taken to the ruling of the court, is as to the evidence offered in part to prove the written contract, or contract A, upon which the suit was brought. The effect was to prove the handwriting of Hicks. One witness was examined who had seen him write, and who believed the signature to be his.

Among the papers in . the case were a bond and several affidavits, admitted to have been signed by Hicks, all of which properly belonged to the files in. the case. Three witnesses, who -were experts, were called by the plaintiff, and them papers were put into their hands, and also contract A, and the inquiry was made of them as to the genuineness of the' signature to the latter. This testimony was objected to, on the ground that the witnesses were not acquainted with the handwriting of Hicks, and in giving an opinion, could only judge from comparison of hands. The objection, however, was overruled, and the witnesses permitted to testify.

This action of the court is assigned for error.

As to the question, whether, it is proper to judge of the signature to .a written instrument, by comparing that signature with others which are admitted to be genuine, there is great contrariety of opinion, and in different states of this Union, different rules of decision prevail. The old rule was, that the witness called upon to testify to handwriting, must be acquainted with the handwriting of the individual whose signature was to be proved. He must have seen him write, must have corresponded with him, or must have been acquainted with his handwriting, from having seen writing admitted to be his. In no case could the fact be proved by comparison of han'ds. But in truth, all evidence of handwriting, except where the witness saw the signature made, is derived from comparison. The witness judges of the handwriting presented, by comparing it in his mind with what ’ he has previously seen or known of the handwriting of the individual.

If-it is true, as I suppose it is, that every witness who testifies to the handwriting of another, does it by comparing in his mind the signature to be proved, with the knowledge he has previously acquired of the character of the handwriting of the individual, either by seeing him write, or by the examination of letters or-documents admitted to he his, I cannot see any danger in extending the rule so far as to permit experts to testify, upon actual comparison. Certainly there is more probability of arriving at truth in this manner, than there is in relying upon the opinion of a witness who has, but in a single instance, seen the person write whose signature is to be proven.

But it is unnecessary, as it seems to the court, to settle this question -definitely in the case now before us.

Mr. Greenleaf, in his treatise upon evidence (vol. 2, § 578), says “ this rule, requiring personal knowledge on the part of the witness, has been relaxed in two eases: 1. Where the writings are of such antiquity that living witnesses cannot be had, and yet are not so old as to' prove themselves. Here the course is to produce other documents, either admitted to be genuine, or proved to have been respected and treated and acted upon as such by all parties, and to call experts to compare them, and to testify their opinion concerning the genuineness of the instrument in question. 2. Where other writings, admitted to be genuine, are already in the case. Here the comparison may be made by the jury, with or without the aid of expertsIn the case now before the court, there were such writings in the case, and it was with these writings the witnesses were called upon to compare the signature to the instrument which was the foundation of the suit. In our opinion, the court of common pleas did not err in admitting this testimony.

After the plaintiff had closed his testimony, the defendant moved the court to direct judgment of non-suit to be entered against the plaintiff. This motion the court overruled, and this ruling of the court was excepted to, and is assigned for error.

Where no evidence is introduced by a plaintiff conducing to prove the issue, or where the evidence by him introduced is such as to show clearly that he has no cause of action, it is the duty of the court to direct judgment of non-suit. But if the evidence introduced is appropriate to the issue, although it may be slight, and not sufficient in the opinion of the court to entitle the plaintiff to a verdict, still the jury should be per mitted to pass upon it, and it would be wrong in the court to decide a- non-suit. In the case under consideration, there was evidence of this character, and the court very properly overruled the motion for a non-suit.

The defendant then moved the court to rule out the paper marked A, under the first count in the declaration. This motion was overruled by the court, and this decision was excepted to.

The paper marked A, is the instrument described in the first count of the declaration, and why it should have been ruled out, it is impossible for this court to conceive. It could not be on account of variance, for it is recited in the declaration, word for word and letter for letter. If there was any other cause, we have not been able to discover it, and the counsel for plaintiff in error have not taken the trouble to inform us.

The evidence being closed on the part of the plaintiff below, the defendant introduced and read sundry depositions, and also offered to read, and was permitted by the court to read, several affidavits which had been made by the defendant in the case. Witnesses were also examined in court. During the progress of the trial, the deposition of Wingard had been read, subject to objection, and several depositions to invalidate his testimony. This deposition of Wingard, and the testimony to impeach it, were eventually excluded from the jury.

After the testimony was closed, the court proceeded to give certain instructions to the jury. After which, the defendant’s counsel requested the court to instruct further as to eleven particlars, which are specified in the bill of exceptions. Some of these instructions were given, some withheld, and some given in a modified form. Wherever the court failed to instruct specifically as requested, exceptions were taken, and such failure is assigned for error.

The second instruction, which the court was requested to give the jury, was, “ that the paper marked A, and described in the first count in the declaration, is not admissible under, that count, and so far as that count is concerned, must be disregarded.”

This request, to say the least of it, was not very respectful to the court. This paper was originally given in evidence under the first count; a motion to rule .it out as evidence under that count had been overruled, to which overruling exception had seen taken, and now the court were, in substance, requested to instruct the jury that these decisions were all wrong, and that they must disregard the paper. The court very properly refused any such instruction.

The third instruction requested was, “ that said paper is not binding as a guarantee, because it does not, on its face, contain a sufficient consideration.” In answer to this request, the court instructed the jury, “ that no recovery could be had upon paper A, as a guarantee under the state of the pleadings, it having been declared on as an original, independent undertaking.

The instruction requested, was one which could not with propriety have been given, even had the paper been sued upon as a guarantee; as it was not thus sued upon, it was immaterial whether the consideration was expressed upon the face of the paper or not.

The ninth instruction requested was, “ if in the sale of the lumber, credit was given by Person to Wingard for this lumber, and he was bound to Person for it, plaintiff cannot recover in this suit.” To this request, the court responded, that if the credit was given to Wingard solely, and he alone bound in the first instance, no recovery could be had against Hicks, although he might afterward have promised to pay Wingard’s liability. That it was necessary that Hicks should be originally bound, either solely or jointly, with Wingard, to make him liable in the present suit.”

It seems to this court, that this was a proper response to the request, and. that the opinion so expressed was in consonance with the principles of law. This response, too, might be well taken as an answer to the sixth instruction requested, which was refused.

The eleventh instruction requested is, “ that the plaintiff cannot recover unless he prove that Wingard had authority to make the precise contract which it is pretended he did make, that is, to pay in notes, at six and eight months, and that the authority was given before Wingard purchased the lumber.”

Upon this point the court charged, “ that if Hicks was originally liable, and in consideration of such liability, afterward agreed to pay, in six and eight months, he would be liable, although no time of payment was expressed or fixed in the original contract.”

We see nothing improper or illegal in this part of the charge of the court, nor in fact in any part of it. It was as favorable to the plaintiff in error as could have been reasonably desired.

Upon examination of the whole record, up to the time the case was finally submitted to the jury, we find nothing erroneous in the ruling of the court of common pleas. It follows that the plaintiff in error has lost nothing in not having his bill of exceptions signed and sealed within the term in which it is said that the alleged errors were committed.

It remains now to examine the subsequent proceedings. As before stated, the verdict was returned at the November term of the court, 1847, and the case continued, on a motion for a new trial, until the next succeeding February term. At the February term this motion was overruled and judgment entered upon the verdict. To this ruling of the court exception is also taken, and it is alleged.for error that the court overr ruled this motion.

Among the reasons assigned for a new trial, were the several alleged errors committed by the court during the progress of the trial, which had been already considered and disposed of. Upon these it is unnecessary to say any thing further. It is further assigned as cause for a new trial, that the verdict was against the charge of' the court, against law, and against the evidence of the case. Wherein the verdict was, against the charge of the court, or against law, we have not been able to discover. The question remains, was it against the evidence in the case ?

Before entering upon this inquiry, it may be well to remark, that the court before whom a trial is had, where the witnesses appear and are examined, where the hearing of any specific testimony is seen and understood, can judge with much more propriety whether a new trial should be granted in a given case, than can an appellate court, to which nothing is presented but-a statement of facts proved. Still the legislature have provided that, in a proper case, this court may reverse the decision of an inferior tribunal, where that tribunal has refused to grant a new trial,, when the verdict is supposed to be against “law or evidence.”

Before this court can determine whether a verdict in the court of common pleas is “ against evidence,” we must have, not a part only, but the whole evidence which was before the jury, on the trial, and this must be brought before us by a bill of exceptions, made part of the record. I say, made part of the record. For it is only upon inspection of the record that a court of error acts. All the evidence before the jury must be embodied in or made part of the bill of exceptions. It will not do, as is sometimes attempted to be one, to refer to the records of courts, or records, of deeds, and attempt to make them parts of bills of exceptions. It will not do to refer to depositions on file, by the names of the defendants, or by artificial marks upon the depositions themselves, without something beyond this. They must be attached to or made part of the bill of exceptions, so that when a record of the case shall be made, they-can be introduced into that record as constituting a part of the case. Such preparation of bills of exceptions may be attended with much labor on the part of counsel, and with much expense on the part of clients, and probably the labor and expense will be avoided except where there is palpable ground for the belief that wrong and injustice have been done. This strictness is not required where the motion for a new trial is based upon an error committed by the court, in the progress of the trial, but only where the complaint is, that the verdict was “ against evidence.” In such case we must haye all the evidence before us.

Now how is it in the case under consideration?' There was much evidence and many depositions before the court of common pleas.. This is apparent from the bill of exceptions. In that bill it is stated, that after the plaintiff had closed his testimony, “ the defendant offered and read the deposition of George M. Keirnan, Ferdinand C. Brachman, Joseph Scott, and Clifford G. Wayne, being in one batch, and marked L on the back.” But these depositions are not attached to the bill of exceptions, nor is there any statement that they are made a part thereof. Strictly speaking, it gives this court no better information than it would have had, had the statement been that these individuals had been examined in open court, without stating their testimony. The same difficulty exists with respect to other depositions named in the bill of exceptions. The facts of the case are not properly before us.

Notwithstanding this, however, we have looked into these depositions, so far as we could find them. At least one referred to is not with the papers in the case. From this examination, it appears that the evidence was conflicting. Possibly, had the case been submitted to this court upon the facts, we should have found that issue in favor of the defendant. The verdict, however, cannot with propriety be said to be “ against the evidence,” although, possibly, it may have been against the weight of evidence. But there had been two trials in the court of common pleas, and two concurring verdicts. Under these circumstances, we think that court very correctly refused a third trial.

The judgment is affirmed


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    George Lockwood v. Minot Mitchell and others.
    Where a party, having a claim secured by mortgage, proceeds before it is due to obtain a decree for a larger sum than is actually owing, and by fraud and circumvention prevents the mortgagor from making a defense, such decree may be avoided, because of the fraud; and the party injured may proceed, by original bill, to set aside tho decree.
    It is not necessary, in such case, tha-t the amount really due should be tendered before filing the bill.
    This is a bill in chancery reserved in Erie county, and the case is submitted upon bill and demurrer.
    The material allegations in the bill are as follows: — “ On the 17th of March, 1836, the complainant and his brother, Ralph Lockwood, who were then doing business in partnership at Milan, in Erie county, entered into an arrangement with two of the defendants, Minot Mitchell and Elisha Crawford, by which it was agreed that the Lockwoods should pay Mitchell and Crawford four hundred dollars, and Mitchell and Crawford were to loan to the Lockwoods $>8,000, at seyen per cent, interest, payable in five years, to be secured on real estate in Milan.' This agreement was subsequently consummated. Payments were made from time to time, of the interest and some of the principal, by the complainant, George Lockwood, Ralph Lockwood having died shortly after the loan was effected.
    In 1842, on the payment of several hundred dollars by Lockwood, the loan was extended for five years, from the first of April, 1841. Sometime in December, 1843, complainant was taken to the Ohio lunatic asylum, where he remained until the latter part of 1845.
    This confinement is alleged to have been unlawful, and to have been effected by James Lockwood, son of complainant. The object is asserted to be, that the said James might obtain possession of the property. Whilst the complainant was confined in.the lunatic asylum, in March, 1844, Mitchell and Crawford commenced proceedings, in the court of common pleas of Erie county, to foreclose their mortgage. Service was made on Lockwood, in the asylum. The complain ant employed the Marvins, as his attorneys, who filed a bill in the State of New York, againsrt Mitchell & Crawford, and the vice chancellor of New York granted an injunction, restrain ing the defendants from further proceedings on the mortgage; and the Marvins made their affidavits, stating that the cause in the New York court would be heard at the next January term, and that, in their opinion, the mortgage and notes would be decreed fraudulent and void. A copy of the proceedings in New York, together with the affidavits of the Marvins, was presented to the court of common pleas of Erie county, and the court, therefore, stayed all further proceedings on the mortgage. Whilst matters stood in this situation, in August, 1844, James Lockwood, and Mitchell and Crawford, entered into an agreement, to which the Marvins .and the executor of Ralph Lockwood became parties, by which it was agreed, that Mitchell and Crawford should employ James Lockwood to collect the amount of the notes and mortgage, which, they agreed, amounted to $11,514.98 ; which sum, the bill alleges, exceeded what was really due by more than $3,000. James Lockwood was to purchase in the property, and make sales, from time to time, during the tefm of four years, pay off Mitchell and Crawford, and retain the residue. The Marvins dismissed the proceedings in New York, James Lockwood proceeded to foreclose the mortgage and sell the property, became the purchaser, and has since conveyed it •to Mitchell and Crawford.
    It is alleged in the bill, that this whole proceeding, on the part of James Lockwood and Mitchell and Crawford, was fraudulent, and carried on with intention of defrauding complainant out of his property. That at the time the Marvins dismissed the proceedings in New York, they were not authorized to do so; that James Lockwood, and Mitchell and ' Crawford, knew that they had no such authority, but that they were induced to do so by deception and misrepresentation. That complainant, during all these transactions, was confined in the lunatic asylum, and thereby prevented from doing any thing toward asserting his rights. That the decree was taken for several thousand dollars more than was actually due, and that it includes a large amount of usurious interest.
    It is also stated that the property, that was sold for seven thousand dollars, was worth $75,000. The bill prays that the decree may be set aside as fraudulent and void; that an account may be taken, and that the amount of the principal, with legal interest, may be ascertained, deducting what is usurious.
    P. B. Wilcox, for complainant, cited the following authorities :

      Suffolk v. Green, 1 Atk. 450; 2 Munf. 407 ; Willis Pld. 381; Wilcox’s Forms, 655 ; 1 Fonbl. Eq. B. 1, ch. 1, note (h) ; 2 Ves. 137; 1 John. Ch. Rep. 367, 439; 10 Wheat. Rep. 367 ; Story’s Conf. of Laws, sec. 233, 292 ; 2 Kent’s Com. 460,1 ; 13 Pet. Rep. 65 ; 6 Paige’s Rep. 633 ; 1 Com. Rep. 274, ’8 ; 4 Ohio Rep. 384; 1 Ves. sen. 247; 1 Johns. Cases 429 ; 5 Johns. Ch. 184; 9 Pet. Rep. 632, 658 ; Story’s Eq. Pld., sec. 443 ; 6 Paige’s Rep. 571; 3 Monroe 356.

      Andrews, Mitchell, and Lane & Son, for defendants, relied upon the following authorities :
    Blydenburgh on Usury 16, 17, 22; 11 Ohio Rep. 417 ; 13 Ohio Rep. 107 ; 1 Johns. Ch. 367, 439 ; 5 John. Ch. 122; 6 Wheat. Rep. 567; 11 Met. Rep. 397; 6 Paige’s Rep. 5, 7.
   Caldwell, J.

This case comes before us on demurrer to the bill, consequently the question to be decided is, simply, whether the facts alleged in the bill would, if true, entitle the party complaining to relief in equity.

In support of the demurrer, it is contended that the bill shows that a large amount of money was due on this mortgage, of principal and legal interest, at the time the decree of foreclosure was rendered, and that no tender being alleged the bill is demurrable. If the bill was filed merely for the purpose of deducting the usurious interest, this objection would be well taken. Indeed, if usury were the only objection tc the decree, it would be too late for the party to have even that rectified. The defense, to so much of the claim as might be usurious, could have been made in the former proceedings, and if the party either failed in proving it or neglected to make it, his right to assert it is now gone.

The bill, however, in this case, stands on much higher ground. If, as the bill alleges in this case, the complainant was, for a fraudulent purpose, confined in the lunatic asylum, and whilst thus situated, unable to defend his rights, Mitchell and Crawford, taking advantage of his helpless situation, commenced proceedings on a claim that was not due, with a fraudulent intent, and afterward, by fraud and deception, induced his attorneys to dismiss the proceedings, which were pending in New York, and which enjoined them from proceeding on their claim, knowing, a-t the same time, that those attorneys had no right to do so, and then took a decree for an amount much larger than was actually due, on which complainant’s property was sacrificed, it would present a case of unmitigated fraud, attended with great injury to the person on whom it was committed ; a fraud on the court rendering the decree, as well as on the complainant.

A decree or judgment receives its force from the fact, that it is the decision of a competent tribunal, before which both the parties have had an opportunity of appearing and prosecuting their claims, and having them fairly adjudicated. When this is prevented by the fraud or circumvention of one of the parties, without the fault or negligence of the other, the decree or judgment of the court .cease? to have its binding effect, and it is competent for the party injured to resort to a court of chan eery to obtain relief.

The complainant has presented, as we think, a case that entitles him to relief by original bill; the demurrer will, therefore, be overruled.


author: Spalding, J.

text:
    Joseph Neville and others v. The Merchants and Manufacturers’ Mutual Insurance Company of Cincinnati.
    An insurance company cannot be held liable, in chancery, to issue a policy of insurance in pursuance of an alleged contract, unless the proof is clear that such contract has been consummated..
    This is a bill in chancery reserved in Hamilton county.
    The case was brought before this court in 1848, upon bill and demurrer, and was elaborately argued, decided, and remanded to the county, with 'leave to answer. It is reported in 17 Ohio Rep. 192, and contains the arguments of counsel. It was re-argued at the present term, but as the facts in the case are no-t materially changed by the answer and testimony, the arguments are omitted.
    A full statement of the facts will be found in the opinion of the court.
   Spalding, J.

This case has once been considered in this court, on a demurrer to the bill of complainant filed by Joseph Neville against the insurance company, (17 Ohio Rep. 192.) The demurrer was. overruled by a majority of the court, (the present chief judge dissenting,) with- leave to the defendants to answer.

' The cause was remanded to the county, where new parties were made, an answer was filed, with a replication by complainants, and much testimony was taken.

. At the May term, 1849, of the supreme court for Hamilton county, upon full argument, the case was again reserved for the consideration of all the judges, and was continued at the last term of the court, from the intrinsic importance of the questions involved in the controversy.

The bill is filed to compel the defendants to perform their agreement, to insure 10,987 bushels of corn, on the flat-boats Eagle and Clinton, together with advances on the boats, amounting in the whole to the sum of $5,550, and to recover that amount, w.ith interest: a total loss having occurred on the 3d day of January, 1847.

Joseph Neville had a general-policy of insurance, issued by the defendants, whereby they caused him to be insured “ in such sums, and on property from such places, and on board of such vessels, as should he mutually agreed upon between the parties, and indorsed thereon.”

The'negotiations with the company as to this specific insurance, and forming the alleged contract, are contained in the following notes:

No. 1.

Cin’ti. Ex’s®. 12 — 29,1846.

To the Merchants and Manufacturers’ Mutual Insurance Company :

Please effect insurance on 145 bbls. lard, per the'Rockaway, hence to New Orleans, valued at seventeen hundred and fifty dollars, ($1750.)

Also — on interest as may appear, on 'two flat-boat loads of Indian corn, now loading at foot of Smith street, in charge of Capt. Hamilton, hence to New Orleans, supposed quantity about 9,000 bushels: declaration of quantity to be made tomorrow. The policy to cover at least five thousand dollars, and to state loss, if any, on either the lard or the corn, payable to Richardson and Watson, New York.

Yours, respectfully,

$5,000. Joseph Neville.

No. 2.

Oeeice M. & M. Ins. Co.

Cin. Dec. 30, 1846,

Jos. Neville, Esq.:

Sir : — The premium on 145 bbls. lard, valued at $1,750, per Rockaway, is —$8.75. The risk on the corn per fiat boat, if the boats are of the right class and size will be five per cent. The premium on flour, per No. 1 boats, is If. We must be furnished with a survey of the flat boats, by Capt. Pierce, before we can decide upon the risks.

Yours in haste,

A. M. Searles, Sec’y.

No. 8.

Cincinnati, 1 Mo. 1,1847.

To the Merchants and Manufacturers Mutual Insurance Company, Cin.:

I have shipped on board the two flat-boats, Eagle and Clinton, now lying at the foot of Smith street, 4,962 sacks, contain-10,987.16 bushels of corn, which you will please insure hence to New Orleans, including advances on boat, etc., at six thousand dollars. Loss, if any, payable to Richardson and Watson, New York. The flat-boats are in charge of Capt. Edward Efamilton, and surveys to be handed in the morning.

Yours, respectfully,

Joseph Neville.

No. 4.

Joseph Neville, Esq.:

There appears to be an over-valuation on the corn, per flatboats Eagle and Clinton. Our rule is market value and five per cent, added. This is always adhered to. Please let me know respecting it. Yours,

A. M. Searles, Sec’y.

No. 5.

On your terms the corn in sacks cost, - - - - $5,000

And, as near as possible, advances paid for two boats, to be included in the policy, ------ 550

$5,550

No. 6.

We cannot understand how 10,978 bushels corn should cost $5,000, when the market price is but 21c.

The market price and five per cent, is the rule, and we do not feel justified in deviating from it. It may stand insured until Monday, when we should be glad to see you on the subject.

Yours,

A. M. Searles, Sec’y.

No. 7.

Cincinnati Exchange, 1 Mo. 2, 1847.

To Merchants and Manufacturers’ Mutual Insurance Company, Gin.:

In reply to your note, just received, I have to say I am prepared to show that the sum insured on flat-boats, Eagle and Clinton (say $5,550), does not exceed your limits, including my advance on the cost of the boats. On the contrary, I am buyer of a few boat loads more of. such corn, in such packages, at same price, or about the same. I have one flat-boat load from Portsmouth, and expect to load two or three boats more from hence, and your accepting of the insurance of the rest from here is entirely optional with you.

Yours, respectfully,

Joseph Neville.

It will be seen that this correspondence commenced with the letter of Mr. Neville, marked No. 1, and bearing date December 29th, 1846. This was on Tuesday.

No. 3 bears date January 1,1847. & that the five last notes must have been written on Friday and Saturday. It is admitted that No. 7 did not reach its destination until the next Monday. On Sunday the boats were started for New Orleans, and were wrecked the same evening, just below the city of Cincinnati.

The only additional evidence that can have a tendency to aid us in giving a just interpretation to this singular correspondence, may bo found in the following extracts, from the depositions of A. M. Searles, secretary of the company, and .Samuel M. Ilaughton, the factor of Richardson, Brothers & Co., of Liverpool and Belfast, on whose account the corn was shipped.

Mr. Searles, in his deposition, says: “ The offer made on Saturday evening in my note, that the corn might stand insured until Monday, was made after office hours, and was intended for his acceptance as a temporary arrangement, in expectation that the whole matter might be fully agreed upon and adjusted on Monday morning. I was secretary in the defendant’s office, and conducted the negotiations with the complainant, in reference to this matter, myself. I do not know that I was ever informed when the boats would start, but was under the impression that they would not start, in any event, before Monday morning, or until the insurance was finally consummated.”

Mr. Haughton, in his deposition, says, that on Tuesday, the fifth day of January, (1847,) “ I went with complainant to the office of the Merchants and Manufacturers’ Insurance Company, to inquire why an indorsement had not been made on the policy of insurance, etc. The, complainant recalled to Mr. Mitchell’s recollection the conversation which had taken place a few days previous, when he had called with the inspection of the boats, and when he had told Mr. Neville that he took the risk; and had told Mr. Neville to hurry the boats off, as the water was falling. Mr. Mitchell said he recollected having told Mr. Neville this.”

In the investigation of this cause, very many interesting questions have arisen, all of which have been met by the counsel, on either side, with distinguished ability.

But after a most careful and anxious examination of the sub ject, in the opinion of a majority of this court, the whole case turns on the question, whether the contract of insurance was complete between the parties at the time of the happening of the loss.

No one doubts- that if the agreement be' proved to exist, though not in writing, the rights of the assured may be asserted in a court of equity.

' The late chief judge, in pronouncing the opinion of this court, upon this branch of the case, when overruling the demurrer to complainant’s bill, remarks, very properly, that, “ we must look closely into the correspondence between the parties, and see if, from that, the evidence of the assent of both parties to the terms of the agreement be clear and unequivocal.”

“ Mutual consent,” says Chancellor Kent, in his Commentaries, is requisite to the creation of the contract; and it becomes binding when a proposition'is made on one side and, accepted on the other.” 2 Kent’s Com. 477.

If we look at the correspondence by the light of this rule, how can we arrive at the conclusion that the parties perfected a contract of insurance ?

Neville, in the first place, makes known to the pompany his wish to effect an insurance on two boat loads of corn, supposed quantity about 9,000 bushels, but the real quantity to be made known on the next day. The policy to cover at least five thousand dollars. This was on the 29th of December, and on the 30th, the secretary replies, that if the boats are of the right class and' size, the risk on .the corn will be five per cent.; but, he says, “ before we can decide upon the risks, we must be furnished with a survey of the flat-boats by Capt. Pierce.”

Thus far there seems to be.no pretension of any contract.

On the first day of January, however, a distinct and definite proposition for insurance is submitted hy Neville to the-company. This was on Friday, and all the remaining- correspondence took place on the same day and the next day following.

In his first noce of Friday, Neville says, you will please insure hence to New Orleans, 10,987 bushels of corn; valuation,, inclusive of advances on boats, six thousand dollars.

The secretary, in his subsequent replies, seems to have his mind entirely engrossed with the excessive over-valuation of the corn. So far from evincing a readiness to close in with the propositions of Neville, he omits to take notice of the fact that, in one of those propositions, the company is asked to take risks upon the flat-boats themselves, and thus violate what is proved to have been, at the time, a standing rule with every insurance office in the city of Cincinnati.

He says, very'promptly, to Neville, “ there appears to be an over-valuation on the corn. Our rule is market value and five per cent, added. This is always adhered to; please let us know respecting it.”

Neville replies: “ On your terms the corn in sacks cost five thousand dollars. That is to say, the market value of my corn in sacks and five per cent, added, is five thousand dollars; but I still wish to insure $550 on the flat-boats, making in the whole, (not six<thousand dollars, as I said this morning,) but $5,550.”

Mr. Searles is still embarrassed with the high valuation put upon the corn, and, losing sight of the $550, put upon the hulls of the flat-boats, says to Mr. Neville, as he closes his office on Saturday night, “ We cannot understand how 10,978 bushels of corn should cost $5,000, when the market price is but 21 cents. We have already said' to you, that the market price and five per cent, is the rule, and we do not feel justified in deviating from it.

“ It may stand insured until Monday, when we should be glad to see you on the subject.”

The learned judge, to whose opinion I have once already adverted, in commenting upon the closing part of this negotiation, says, that at the time the secretary informed Ne-ville that there appeared to be an over-valuation of the corn; that market value and five per cent, added was the rule of the office, “ one thing only was wanting to finish and perfect the contract. That one thing was Neville’s acceptance of this modification of the amount to be insured. He accepted the proposition by his third note: ' On your terms the corn in sacks cost $5,000,’ ” etc. With all deference to the high source whence this opinion emanated, I cannot help the belief that the law allows both contracting parties a voice in fixing the market value of the property to be, insured. And it was doubtless owing to the fact made known to us by the testimony, that the secretary had himself bought corn in the market, on that very day, at twenty-one cents, that he would not consent to the valuation of “ five thousand dollars,” on the quantity stated. A valued policy, and none other, was sought for by the complainant Neville. No valuation of the corn was ever acceded to, expressly or impliedly, by the agent of the company, and consequently no contract of insurance was effected for the voyage. What 'was intended by the words of the secretary, “it may stand insured until Monday,” it may be difficult to determine; but I think his own version of the matter, that he meant just what his words expressed, without any very definite notion in regard to the premium, quite as sensible as the construction which makes his language mean, “ it may stand insured until Monday, for the voyage to New Orleans.” He swears tha-t he had no expectation that the boats would be started from Cincinnati until Monday morning, or until the contract of insurance for the voyage should be consummated, and his testimony is not difficult of belief.

In accordance with the doctrine laid down by Chief Justice Hosmer, in the Ocean Insurance Company v. Carrington (3 Conn. 567), which we recognize as “ sound law,” a majority of this court are clearly of the opinion, that the premium of four per cent, upon $5,550, could not have been recovered against Neville, in case the two boats had proceeded safely to New Orleans, without further negotiation in regard to the insurance.

If right in this conclusion, the complainants cannot recover. Both parties to the agreement must be bound, or neither can be held liable.

It is perhaps unfortunate for the parties in interest, that the loss in this case occurred while time was taken to deliberate'by the defendants. This circumstance, however, cannot be allowed to impair their rights, and make that act binding which, otherwise, would not have been so. In the words of the eminent chancellor of New York, whose laws and whose morals were of equal strength and purity, “ the interpretation of contracts, and the administration of justice, ought to rest on general and fixed principles, and not on views of temporary hardship or expediency.”

The bill will be dismissed.

Avery, J., dissented.


author: Avery, J.

text:
    William O’Harra’s Heirs v. Jesse Hunt and another.
    Depositions taken in a former case, between the same parties, cannot be read in a case pending, unless some peculiar reasons make their introduction as evidence necessary.
    This is a writ of error to the Supreme Court of Hamilton county.
    Several points were presented by the record and argued by counsel, but only one was considered by the court. .. That is sufficiently stated in the opinion of the court.

      Spencer & Corwine, and Storer & Gwynne, for plaintiffs in error.

      S. Fales, and Pugh & Pendleton, for defendants.
   Avery, J.

It is the object of this writ of error to reverse a judgment of the supreme court, rendered at the April term, 1844, in an action of ejectment.

Upon the trial of the cause, proof, as shown by the bill of exceptions, was first introduced, of a legal title in the .lessees of the plaintiff, derived from the government of the United States.

After the plaintiff had rested his case, the defendant claimed title by virtue of an adverse posssession of the premises for more than twenty-one years, commenced in 1806 by Betsey Rutter, and continued by her during her life; after her death, in 1832 or 3, kept up by her heir first, and subsequently by the defendant in the action, until suit brought.

The plaintiff then gave in evidence the record of a proceed-in chancery, instituted by the same Betsey Rutter against the said Jesse Hunt. The bill was filed in the court of common pleas of Hamilton county, in 1817, and after an appeal, was dismissed, on hearing before the supreme court upon bill, answer, and testimony, at the July term, 1822. The bill was founded on a written obligation, executed in 1801, by said Jesse Hunt, acting fbr himself and said Abijah Hunt, by which they agreed to give possession of the premises to said Betsey Rutter, and Henry Rutter her husband (before the filing of the bill), and upon payment of the purchase money, to execute to them a deed in fee simple for the same. The plaintiff further gave in evidence, in the action of eject-, ment, a paper dated at Natchez, Mississippi Territory, in 1812, purporting to be a conveyance by said Henry Rutter, of all his title and interest in the premises, to Andrew Burt; another paper, dated in the same year, from said Burt to David Hunt; and another paper, .dated-in the same year, from said David to said Jesse Hunt. And to prove the execution of said several papers, the plaintiff in ejectment gave in evidence the depositions of sundry witnesses, taken in said cause in chancery. The defendant had objected to the admission of the depositions, and upon being overruled, took exception to the opinion of the court.

Several questions have been made and debated by counsel upon the writ of error, but the only point decided by the court relates to the admissibility of the depositions, offered by the plaintiff in the progress of the trial.

The record of the proceedings in chancery was intended td rebut the claim of title by adverse possession, and to show that Betsey Rutter held possession of the premises, not adversely, but in pursuance of a contract of purchase. The transfers from Henry Rutter and others, and the depositions which had been taken in the chancery cause, were introduced to show that no defense could be based on the contract, because all the rights growing out of it had passed from the purchaser, and been conveyed to the plaintiff, Jesse Hunt.

These depositions were offered as competent testimony to establish distinct facts in issue before the jury, to wit, the execution of each of the several transfers referred to. They had been taken to be used in a different cause, and no reason was assigned for neglecting to bring the witnesses themselves into court, or for omitting to take their depositions over again, if they could properly be admitted, to be read as evidence at the trial.

The question as to the admissibility of depositions offered under such and similar circumstances, has been decided at the present term, in the case of Shepherd against Willis. In that case, the depositions were declared to be inadmissible, and we regard the decision as an authority in the case now before us. It follows, that there was an error in admitting the depositions on the trial of ejectment, for which cause the judgment of the supreme court is reversed.