text:
    William Likes vs. John Van Dike.
    A plea of moliier manus imposuit is not a full answer to a declaration charging an assault and battery 5 and if issue be taken upon such plea and found for the defendant, it still leaves a part of the declaration unanswered, and judgment should be rendered for the plaintiff non obstante veredicto.

    When a judgment non obstante veredicto is rendered for the plaintiff, usually, a writ of inquiry should issue, but if the jury has passed upon the whole matter and assessed damages for the excessive battery not answered by the plea, in favor of the plaintiff, a writ of inquiry need not issue, but judgment may be rendered for the plaintiff for the damages assessed.
    This is a Writ of Error to the Court of Common Pleas of Delaware County.
    The original action was in Trespass for assault and battery.
    The pleas were:
    1. The general issue.
    2. That the defendant was lawfully.possessed of a farm and that the plaintiff unlawfully entered upon the same and commenced throwing down the fénces, &c., and that the defendant requested him to desist, and gently laid hands upon him, to prevent him from further mischief; without averring that any further injury to the plaintiff resulted from his own improper resistance.

      ' 3. Substantially the same as the second plea.
    4. That the plaintiff was not hurt, injured/ or damaged by means of said supposed trespasses in plaintiff’s declaration mentioned.-
    To the fourth plea the plaintiff démurred, and the demurer was .sustained.
    Replication to the second and third pleas:
    1. That the. plaintiff was a supervisor, and the place where the said trespass was committed was a public highway, and he was performing his duty as a supervisor.
    2. That the plaintiff was removing obstacles from said public highway. ,
    Rejoinder, 1. That there was not a public road running through the premises of the defendant, and that the plaintiff was not a supervisor.
    2. That the plaintiff was not removing obstructions from the public highway, &c.
    The jury returned a special verdict finding
    1. The assault and battery.
    2. That there was no public road when, &c., that the plaintiff had no right to pull down the defendant’s fences, and that the assault and battery was in defence of the premises of the defendant. ■ • .
    3. That the force used was excessive, and for the excess they found a verdict for $6-41 for the plaintiff, provided the Court shall be of the opinion, under the pleadings, the plaintiff could recover for such excess.
    Upon this verdict the Court rendered judgment for the damages assessed ; and this is assigned for error.
    T. W. Powell, for Plaintiff in Error.
    C. Sweetzer, for Defendant.
   Read, J.

The special, pleas in this case, if we follow the authority of Gregory and wife v. Hill, 18 Dunf. & East, 169, are not a sufficient answer to the declaration. That case was an action of assault and battery on the plaintiff’s wife, alleging she was hurt, bruised, wounded, and repeated times knocked down, &c. The plea was that she entered the de fendant’s house and remained there without license, making a great noise and disturbance, that defendant requested her to cease her noise and quietly depart out of the house, which she refused to do; whereupon the defendant gently laid his hands upon her and turned her out of the house, which is the same assaulting, beating, &c., complained of in the declaration. A demurrer was put in to this plea, assigning for cause that it was no justification for the blows, &c. The Court said the case was too plain for argument, that a plea of moliter manus imposuit would justify w’hat the law considered as an assault, such as might be necessary to put the party out of the house without outrage and violence, yet it never was considered as any answer to a charge, such as contained in the declaration, of beating, wounding and knocking the party down. In the case of Weaver v. Bush, 8 Durnf. & East, Lawrence, J., says, the defendant ought not in the first instance to begin with striking the plaintiff; but the law allows him, either in defence of his person dr possessions, to lay his hand on the plaintiff; and then he may say (in his plea) if any further mischief accrued it was in consequence of the plaintiff’s own act, so that the battery follows from the resistance. Thus the law is, that in defence of possessions,' an assault by the gently laying on of hands is justifiable, but not a battery, except it result from resistance and violence. To constitute a good plea toi a violent battery, the facts must be averred which form a justification in law. Measured by this rule the 2d and 3d pleas of the defendant in this case were not a full answer, because whilst they allege facts which justify the assault, they do not state sufficient to justify the battery. But upon these pleas the parties proceed to form an issue, and although found for the defendant, it still leaves the plaintiff’s right to recover for the violent battery unanswered. In this view of the case, the jury find on the generaí issue for the plaintiff, and that the assault and battery was committed, and find that both an assault and battery were justified in fence of possession; but that there was excess, for which assess damages $>6 41. Now here are. two verdicts or two findings; one for the plaintiff and the other for the defendant; both of which may stand, to wit, it is found for the plaintiff, that the assault and battery was committed, and for the defendant, if the finding of the jury be limited to the pleadings, that the assault was justified, leaving the battery unanswered, and then they find further that there was excess.

Now under these circumstances the question is, for whom should the Court render judgment ?

The issue in this case is not immaterial — for an immaterial issue is when a material allegation in the pleading is not answered ; but issue taken upon some other point which, though found by verdict, will not determine the merits, but leaves the Court at a loss for which of the parties to give judgment. In such case the Court from necessity must award a repleader. In the case under consideration, the issue is not immaterial, but too narrow, and although it leaves a material allegation (so far as the special pleas are concerned) not traversed, yet it confesses it. The special pleas confess both the Assault and Battery, and avoids the Assault only ; the replication admits the truth of the matter plead in bar, and sets up new matter in avoidance, upon which issue is taken and found for the defendant. Thus from the whole record it appears that the plaintiff, notwithstanding the verdict, has good cause of action.

When a plea confesses the action and does not sufficiently avoid it, judgment shall be given upon the confession, without regard to the verdict for the defendant. The distinction between a repleader upon an immaterial issue and a judgment non obstante veredicto, is this, if the plea be good in form but lack substance, so that when found for the defendant it still leaves a cause of action for the plaintiff, then judgment non obstante veredicto will be rendered for the plaintiff. But when a good defence is informally stated, and issue is made up on an immatenal part of it, so that it leaves the merits undetermined, the Court will order a repleader. So a judgment now obstante veredicto is always upon the. merits, and a -repleader upon the form and manner of pleading.

Now the facts set up in the defendant’s pleas, put in any form that they can be plead, constitute, and can constitute, no defence to the plaintiff’s cause of action as set forth in his declaration. It would be necessary to make these pleas good, to state the additional facts, that the violent battery resulted from the unlawful resistance and violence of the plaintiff himself, in resisting the defendant in gently removing him from his premises, as he had lawful authority to do.

It may be said that judgment non obstante veredicto ought not to be rendered, because perhaps the defendant might, on amendment, have plead additional facts sufficient to constitute a complete defence. But the ’ rule is to construe a plea most strongly against the pleader, and the presumption is that the pleader set up his full defence.

If the Court should reverse the judgment upon the ground that the jury found that there was excessive beating, a fact lying outside of this issue', and that the Court should not have rendered judgment upon it, what then follows ? Why the jury found for the defendant, if in the state of the pleadings the Court were of opinion they could not find for the plaintiff on the ground of excess. Had the verdict been simply for the defendant, upon the special issues, the same difficulty would remain, to wit: that notwithstanding the verdict of the jury, the battery would remain still unanswered, and entitle the plaintiff to a judgment, notwithstanding the verdict. But we cannot reverse the judgment upon the ground that perhaps the party might amend his plea. Under all the circumstances there is nothing to show that the plea could be amended. The judgment upon the record is right.

But it comes at last to this, that it is a matter of some importance that those who engage in the practice of' law should be skilled in their profession, and that a case may from want skill be so shaped that injury will almost inevitably result. in the present case the presumption is, that the able counsel who conducted this cause, placed it in the best position the facts would warrant, and mindful of the maxim of Lord Coke, that the beauty of a plea consisted in jts truth, put in the plea that he did, not from an ignorance of the law, but because the truth would warrant nothing more.

- But on judgments non obstante veredicto a writ of inquiry should go to determine the damages. But in this case the jury have assessed the damages in an alternative verdict. If judgment could be rendered for the plaintiff, the damages should be $6 41. But it may be said that the damages in this case were given for the excessive beating. They were damages assessed for the Battery, or part of it.- The plaintiff is entitled to judgment upon the record for the Battery, and is content with the amount of the judgment. If we should attempt to remodel this whole case by reversing the judgment rendered, notwithstanding the verdict, we should place the case upon the declaration and the general issue, without any assurance that other pleas could be put in which would better work out justice between the parties.

We have not spoken of the demurrer which was put in to the sufficiency of the pleas. The -pleas were good as far as they went. The demurrer was overruled and replication put in and issue made up. We have treated the case precisely as though the demurrer had never been filed, because as the record presents the question, the demurrer does not affect it, and has nothing to do with the case.

Judgment affirmed.


source: Caselaw Access Project

author: Avery, J.

license: Public Domain

text:
    The Schooner Argyle vs. George Worthington.
    The person who charters a vessel does not become owner for the trip, when by the terms of the charter-party he pays a gross sum, the general owner furnishing the master and crew and defraying the expenses of the vessel.
    In such case the vessel is liable on the bill of lading.
    A contract by the Captain to carry goods and collect the price from the consignee, is binding on the vessel, and may be*enforeed under the statute in a suit against the boat.
    This is a Writ or Error to the Court of Common Pleas of Cuyahoga County.
    The action below was Assumpsit, brought by the defendant in error against the Schooner Argyle. The cause was submitted to the Court without a jury, and upon the trial the following bill of exceptions was presented and signed :
    This was an action of Assumpsit; plea, the general issue; and upon the trial of the cause the plaintiff, to maintain the issue upon his part, offered in evidence the copy of the bill of lading which is hereto attached, accompanied with proof that the copy was a true copy of the original bill of lading which was made upon the books of B. F. Smith & Co., that the original was signed by John P. Teal, who was at the time of the execution of the same, master of the defendant; that neither said original nor said copy was delivered to said plaintiff, but during the year 1845 said copy was obtained from a clerk of B. F. Smith &• Co., that the goods described in said bill of lading were by the plaintiff delivered to the said B. F. Smith & Co. for transportation, and at the time of such delivery for such purpose, the said B. F. Smith & Co., who were forwarding and commission merchants, executed and delivered, and the plaintiff accepted and received, the contract and receipts hereto attached ; that one Chester Deming, was at the time said goods were carried by the defendant, the owner of her, that at that time said B. F. Smith & Co. had chartered said defendant for a trip to the upper Lakes and back to Cleveland, of the Deming, by the terms of which charter the said Deming furnished master and crew and defrayed their and the expenses of said vessel, the said B. F. Smith & Co. assuming to pay a gross sum for the trip. The defendant waiving1 all objections to said copy on the ground of its being a copy of bill of lading, and not the original, and thereupon objected to the admission of said bill of lading; which objection was overruled and said evidence received. The plaintiff proved that the master of the defendant collected and received from the consignee of said goods at Milwaukie the bill of purchase or purchase money of said goods, and that defendant was at the time said goods were carried, a water craft navigating the v/aters of Lake Erie, and rested.
    ■ The defendant, to maintain the issue on his part, offered in evidence the contract or receipt hereto attached, proved its execution by the said B. F. Smith & Co., and delivery to and receipt and acceptance by the plaintiff at the time said goods were delivered said B. F. Smith & Co. for transportation, and that at the time said goods were carried by said defendant, said Chester Deming was the owner of the defendant, and that she was running under the charter to said B. F. Smith & Co. as herein before stated, and rested.
    The plaintiff further proved that said defendant performed her upward trip and laid up at Milwaukie, and for the reason that she did not perform her downward trip the said B. F. Smith & Co. afterwards abandoned the charter; which abandonment was accepted by said Deming, and by the terms of such abandonment, said Deming was to receive all the earnings of the defendant on said upward trip, and said B. F. Smith & Co. were to pay nothing for said charter.
    No evidence was offered to show that said purchase money collected by said master was ever paid or received by said Deming, and it was proved that the same was never paid to B. F. Smith & Co. No evidence was offered to show that said ever knew that said goods were carried by said defendant.
    Whereupon the Court decided that the plaintiff was entitled to recover, and gave judgment for the plaintiff, to which said decisions of said Court the defendant excepted and prayed that his bill of exceptions in that behalf might. be allowed, which is accordingly done, and upon his motion the same is ordered to be made a part of the record in this case.
    The following is a copy of the Bill of Lading referred to in the bill of exceptions:
    Cleveland, Ohio, October 17th, 1844.

      Shipped, in good order, by B. F. Smith & Co., as Agents and Forwarders, for account .of whom it may concern, on board the Sch. Argyle, Teal, Master, the following articles, which are to be delivered in like good order, at the Ports specified below, (damages of navigation only excepted,) unto the respective consignees, of their assigns, they paying freight and charges as specified below.
    In witness whereof, the Master of said vessel hath signed Bill of Lading, of.this tenor and date.

      The following is a copy of the receipt: '
    ReceiveCleveland, Oct. 11, ’44, of Geo Worthington,
    75 Bars Iron, ) '
    ' 15 do do 5..........................$29 88
    _ 20 Hf. Boxes Glass,
    to for’d. to Dousman & Co., Milwaukie, for P. Peck, Whitewater, Wis. Ter., subject to chg’s. for Bill purchase of $141 52; also, 15 Grindstones, 70 36, to for’d. to J. Mattison, Chicago,
    111. We will not hold ourselves accountable for. Bill Purchase.
    B. F. SMITH & CO.,
    Per S, S. Coe.
    The plaintiff in error seeks to reverse the judgment of the Court of Common Pleas: —
    ■ 1. Because the Court admitted in evidence the bill of lading, &c.
    2. Because the Court decided that the defendant in error was entitled to judgment against the plaintiff in error, and rendered such judgment, when by the laws of the land judgment should have been given- in favor of the plaintiff.in error.

      S. B. &/■ F. J. Prentiss, for Plaintiff in Error,
    made these points:
    1. The bill of lading was not legal evidence in the case, and if accompanying evidence could make it admissible, that offered by the plaintiff below for that purpose, was insufficient.
    - 2. The master of a vessel can make no contract binding the vessel or the owner to the fulfilment of his engagement to collect and pay over the purchase money which may be due on the property he carries to the buyer.
    3. The master in the collection of the money was the agent of Worthington, and not of the vessel Or her owner.
    4. If Smith & Co. were not liable, the’ vessel was not.
    5. The abandonment of the charter by Smith & Co., and the acceptance of the abandonment by Dealing, and the terms on which it was made and accepted, cannot make the vessel ]jap]g jf s¡5e were not before liable. ’
    Against whomsoever else Worthington may have a remedy, he has none against the vessel, under our statutes.
    They cited the following authorities:
    Curtis, Merchant Seaman, 168-71, 217; Abbot on Ship, Perkins’ Ed. 46-53; 79, 90, 400-3; 11 Johns. Rep. 107; 4 Greenl. 407; 4 M. & S. Rep. 288; 7 Bing. Rep. 190; 7 Car. & Payne’s Rep. 41. ,

      F. W. Bingham, for Defendant in Error,
    cited the following authorities:

      Beckwith v. Sibles, 11 Pick. Rep. 482; 1 Sumner’s Rep. 568 ; 2 do 589; 8 Cranch’s Rep. 49; Mclntire y. Bowen, 1 Johns. Rep. 229; Grade v. Palmer, 8 Wheat, Rep. 632; 4 Wash. C. C. Rep. 110; Merch. Seamen, 171, 244; Hooe v. Grovener, 1 Cranch’s Rep. 214; Darling v. Peck, 4 Ohio Rep. 71; Ibid. 334; 12 Ohio Rep. 343 ; 2 Campb. Rep. 529; 6 Cow. Rep. 173; Abbot on Ship. Story’s Ed. 98, 161.
   Avery, J.

The bill of lading and the receipt of B. F. Smith & Co., sufficiently establish in Worthington the ownership of the goods shipped on board, this schooner, and entitle him to the proceeds of the sale. This firm of B. F. Smith & Co. appear also as mere agents and forwarders in both instruments ; the right therefore of Worthington to sue, if a suit by, any one can be maintained, does not admit of serious doubt. By the bill of lading, Teal, the master, contracts to deliver the goods to the consignees, they paying freight and charges as specified in the bill; the charges specified are $141 52, described therein as “ bill purchase ! ”

According to the terms of the contract, this captain of the boat engaged to obtain payment for the goods when he should deliver them. Had he authority to make this contract, and subject the boat to the duty of fulfilling it ? If so, the suit is properly brought against the boat, and the judgment fixing her liability is right.

It is claimed that B. F. Smith & Co. ought to be deemed the owners of this boat for the trip, as they have in their receipt expressly exempted themselves from liability, the could bind no one but himself by his bill of lading ; at all events, that he could not bind the boat. . And further, if this defence cannot prevail, then it is asserted that the master of a boat has in no case authority to bind her to the performance of a contract like the present one.

If the facts in the case, by the maritime law, exempt the boat, and B. F. Smith & Co. are exempted by the form of their receipt, something like a fraud would seem to have been practiced upon the owner of these goods. The whole transaction however, upon the papers, appears to be consistent with fairness. Smith & Co. were forwarders, avoiding liability, while Teal, as captain, attempted by his contract to'secure the rights of the freighter. And the bill of exceptions shows, I think, a state of facts rendering the instruments drawn, appropriate ones for the parties.

The firm of Smith & Co., had chartered the boat from Chester Beming, the owner, for a trip to the upper Lakes and back to Cleveland. Beming furnished master and crew and defrayed their expenses and the expenses of the vessel, Smith & Co., agreeing to pay a gross sum for the trip. Thi? did not, in the opinion of the Court, make Smith & Co., the owners of the boat for the trip, but left her still as the boat of Beming, the general owner; 1 Cranch’s Rep. 214; 8 Cranch’s Rep. 39; 1 Johns. Rep. 228.

A bill of lading like the present must frequently become necessary, where goods are carried for various freighters. The master of this boat had authority to execute such an instrument and make it binding upon the boat ; Abbot,. 156; Cowen’s Rep. 193; Swan’s Slat. 209.

The ship, by the maritime law, is bound to the performance of every contract made by the master, within the scope of his authority ; 3 Kent’s Com. 162.

The shipper has a lien on the vessel for the execution of a contract by bill of lading entered into by the master; Abbot 011 s^'PP^nS5 Stay & Warkins, 161, notps.

Our statute, providing for the collection of claims against steamboats and other water crafts, declares that the boat shall be liable “ for damages arising out of any contract for the transportation of goods.”

The decision of the Court therefore is, that the Argyle was liable upon this bill of lading, and the judgment of the Common Pleas must be affirmed.


author: Read, J.

text:
    Paul Layet and another vs. Daniel Gano.
    A power of attorney conferring authority to act in a particular transaction authorizes the agent to execute a note in the name of the principal if necessary for the performance of the agency.
    The agentmay execute a note jointly with others who have a common interest in the same subject matter, to pay the necessary expenses for the accomplishment of a common end.
    This is an action of Assumpsit reserved in Hamilton County.
    The declaration counts upon the following note •
    New Orleans, July 10th, 1839.
    $750.
    Sixty days after date we promise to pay Wigginton & Botts, or order, seven hundred and fifty dollars, for value received.
    Piatt & Athearn,
    John B. Craet,
    By his Attorney in fact,
    P. A. Athearn.
    James Blackman,
    Daniel Gano,
    Thomas H. Allen,
    By their Attorney in fact,
    James Blackman.
    The note is indorsed by Wigginton & Botts in blank.

      The plea is the general issue, with an affidavit of its truth, and notice of want and failure of consideration, and that note was past due when it came into the possession of the plaintiffs.
    The note was executed by Blackman, the Agent, in pursuance of the following power of attorney :
    “ Know all men by these presents, that we, Daniel Gano and Thomas H. Allen, of the city of Cincinnati, Hamilton county, Ohio, who are grantees in a certain mortgage, dated 7th December, 1838, granted by Lewis F. Blackman to said Daniel 'Gano, James Blackman and Thomas H. Allen on the equal and Undivided half of the Steamboat Renown, including tackle , and furniture, then navigating the Ohio and Mississippi rivers, now lying at New Orleans, Louisiana, which mortgage is recorded in Record Book No. 69, page 118, No. 4 Records of ■Hamilton county, Ohio, given to secure said Gano, J. Black-man and Allen against their liability as sureties for said Lewis Blackman on two several promissory notes of hand, each for $3,000, with interest, payable to Piatt & Athearn and J. B. Craft, or their order, on which notes there has been paid one thousand dollars, &c., as particularized in said mortgage, said notes being yet unpaid.
    Now therefore, we said Gano and Allen, reposing special confidence in said James Blackman, do for divers good causes us hereby moving constitute and appoint him, said James Black-man, of city of Cincinnati, Ohio, our and each of our true and lawful attorney in fact, to represent and act for us in all and every act, matter, plaint, suit or proceeding, either at law or otherwise, that has been or may be instituted, or become necessary to institute, do.or perform, touching said mortgage or may be rendered expedient and proper to be done to secure the lien and operation of said mortgage, or for such settlement of all matters growing out or touching the said mortgage, or to save the liability of said mortgagees on said security of said notes, and generally to do, act and perform for us fully every act that we could do therein, were we personally present, and attending thereto, and if needs be to appoint one or more attorneys under him, fully to carry the same into full and effectual execution. Here-ratifying and confirming whatsoever our said attorney may legally do in the premises.
    Daniel Gano,
    Thomas H. Allen.”
    There is a statement on file, made by.T. Walker, which was admitted in evidence, proving that Gano admitted the execution of the power of attorney, and of the note by the Agent, and that the note was given for professional services by Wigginton and Botts, as Attorneys, but claiming either that they had rendered no services, or that the sum was extortionate.
    The case was reserved for the decision in Bank of these questions:
    1. Whether under the power of attorney, Blackman had power to bind his principals in a note.
    2. Whether he . could execute a note jointly with others, which should bind his principals.

      Gholson Sf Miner, for Plaintiffs.
    This is an action of assumpsit by the indorsers against the makers of a promissory note. • The only defendant now setting up a defence is .Daniel Gano, and that defence is rested on the want of authority on the part of the agent who signed the note.
    The authority is contained in a .power of attorney authorizing the attorney to attend to the interest of the defendant in a certain Steamboat, giving full power to do any act necessary and proper to secure such interest, or to. make any settlement or adjustment in relation thereto. It appears from the séveral powers of attorney, under which the note was executed, and from the testimony, that all the parties to the note were interested in the same matter, and that the note was given for the professional services of counsel employed to attend to the business. The authority to employ 'counsel — to unite with the other parties interested in the employment of the same counsel— cannot be disputed. The only question is, as to the to give as evidence of the obligation for the payment of compensation to the counsel employed, a promissory note.
    The distinction between a general and special agent, has been often made, and it, is well setted, that the authority of the latter must be strictly purs ued. But it is equally clear, that “ the authority of the agent being-limited to a particular business does not make it special; it may be as general in regard to that, as if the range of it was unlimited.” Anderson v. Coonley, 21 Wend. 279-280.
    The distinction between an authority to act generally as agent, and a general authority to act in relation to a particular business, would seem to be, that, in the latter case, the party claiming the validity of any act done, would be bound to show that such act was done in the course or conduct of such business, or was connected therewith.
    The first inquiry, in this view of the case, is, whether the authority given under the power of attorney was, as to the particular business involved, general. Of this, on any fair construction of the terms of the instrument, there would seem to be no reasonable doubt. By the express terms of the power the agent stands in the place of his principal and may do whatever the latter could, in the usual and ordinary modesi of transacting the business ; Sandford v. Handy, 23 Wend. 260; Hunter v. Jameson, 6 Iredell L. 254.
    - In this case the business required- the aid of counsel, it might and probably did require the settlement and adjustment of other claims on the mortgaged property; to secure the payment of either it is usual, and often necessary, to give a bill or note. So as to the giving a. joint note by several ■ persons interested," they employ the same counsel, become jointly liable for the payment of his compensation, and jointly unite in a note as evidence of that liability. Nothing is more usual and generally beneficial to the parties.

      The remaining inquiry is, whether this note was executed by the agent in respect of a matter connected with his agency. This question depends on the evidence in the case, and it would seem clear from the powers of attorney and other testimony, that the note was given in consideration of the professional services of counsel rendered' in respect of the property in which all the parties' appear to have been interested.
    If there should be any doubt as to the authority of the agent on a construction of the power of attorney, the testimony shows a recognition of the validity of the note on the part of the defendant Gano, and is sufficient proof of an authority or ratification. When applied to for payment, he admitted the execution of the power of attorney and the execution of the note, and placed his refusal to pay on other grounds. This has been held in analogous cases a sufficient admission of liability. Campbell v. Webster, 2 Man. Gr. & Scott, 52 E. C. L. 258 ; Howard v. Baillie, 2 H. Bl. 618, 624, n. (a)
    An express promise is not wanted — that is found in the note; all that is required is proof of an authority to the agent who signed the name of the defendant to the note. Declarations are made by the defendant from which such an authority will be inferred, because, in all human probability, they would not have been made, had not such an authority existed. He who, to an application for payment of a note signed in his name by an agent, answers that the note was given, but for too large an amount, or for a consideration which has failed, and therefore he cannot pay, must be considered as admitting the authority to make the note ; for if there had been no authority, he would have said so, and have put his refusal on that ground.

      Morris, Rairden, and McMicken, for Defendant.
    The first question we present to the Court is, whether this letter of attorney authorizes the execution of the note by James Blackman for Daniel Gano, the defendant now before the Court.
    We contend that the power granted by this letter of attorney, is only to collect or secure a sum of money, or claim, which the signers had upon the steamboat Renown, and , • . „ . authority to collect, receive or secure money due, or to due to a party, cannot be construed into power to give a promissory note, or create a liability for such party.
    To authorize an agent to bind his principal, by a promissory note or other instrument of writing, specific authority for that purpose must be given, and without such specific authority, a promissory note given by an attorney in fact, or an agent, cannot be held binding upon the principal; and a power of attorney to secure, demand, &c., all sums, will not, whatever the general terms used may be, authorize a promissory note, (Story on Agency, 64, 5, 6, 68 and 73, and the authority must be construed strictly,) — and can only be applied to the object of creating the agency, or where the intention of the principal is found, by the language used, as to secure a debt, to receive money due, &c. It cannot be construed into a power to purchase goods, or give a promissory note; 7 B. and C. 268, 283, 284; 5 Bing. 442; 5 Vesey, Jr. 211; 7 Wend. 442; 8 Wend. 494 —• and no incidental power can give authority to the agent, under this power of attorney, to give this note; it is not one of the incidents coupled with his trust. Story on Agency, 87, 88, 90, 91, 92; the authorities referred to in the text would seem to settle the entire .question, and a judgment must be entered for the defendant.
    But should we not be correct in this view of the case, there yet remains the qustion whether, under this power of attorney, the agent could create a joint liability for Gano, and others with him. If the authority here given will be sufficient to give Blackman a right to execute a note for Gano, we contend that there can be no authority to create a joint liability of Gano, with Piatt and Athearn, and John B. Craft. This note appears to have been executed for a matter entirely different from that contemplated by the power of attorney offered in evidence.
    The note upon which this suit is brought, is the joint note, as would appear from its face, of Piatt and' Athearn, John B. Craft, by his attorney, James Blackman, Daniel Gano, by his attorney, and Thomas H. Allen, by his attorney. James Black-acting attorney, to secure a debt to Gano and Allen only— no power to create a liability. But whatever may be said as to authority to create a liability for himself, there certainly is no power granted to create a joint liability for himself and Piatt, Athearn, and. John B. Craft. Th'ere is no evidence that the whole of the debt for which this note is given, was not the entire debt of Piatt and Athearn, 'or of John B. Craft, or either one of them; and without any evidence, what can be said of the power granted — that authority to collect or secure money due may be construed to a power to create a debt, and give a promissory note for a sum due from third persons, with whom the principal has no connection, and having no interest in common with the principal. This power of attorney has been used to sign a joint promissory note, to which Piatt and Athearn, and John B. Craft are the first parties, how can we know for whose debt this note is given; and if this wide construction must prevail, how are we to distinguish between the debt of Piatt and A thearn, or that of any other party to the note, or of an entire stranger, to any matter in connection with this or any other transaction of business. We therefore say the power must be construed strictly, and refer to the same authorities above quoted.
    But say Gano is to be held liable on this note, what would be his liability upon any other note given under the same power, by Blackman ? Certainly Gano would be bound by any note, for any purpose, for which Blackman should see proper to give Cairo’s signature, whether it be the debt of himself, or a joint debt with others, or a debt of third persons. This certainly cannot be the law.
    But we hold again, that by power of attorney nothing can be binding upon the, maker but that which comes within the purview of the power itself, and that cannot be held within the meaning of a letter of attorney merely to collect a debt, which enlarges the present liability of the party. What, then, is the present case ? Gano gives authority to secure a claim for which he is security, and may become liable •; in this the attorney fails, and instead, undertakes to create a new liability for no — and this, too, for debts of others, and if even we admit a part of this debt is Gano’s, what evidence is there as to what amount? Nothing upon which the-Court can fix an item.
    Taking the whole case, then, we are .unable to see how Gano can be made liable on this note.
   Read, J.

Counsel have much to say about powers of attorney, and insist that the one in question does not authorize the execution of a note, although it might the payment of money, • and base their argument upon the distinctions which exist among the several sorts of powers.

Powers of attorney fall under four heads,.

1st. General powers unlimited, embracing the whole business of the principal.

2d. General powers limited to a branch of business of the principal.

3d. A general power to pérform a single transaction, not specifying the mode.

4th. A special power limited to the performance of a single act.

All powers are special when both the end and means are specified.

Where the power is general to perform, a resort to ordinary and usual methods or means comes within the scope of the power.

Where the power is special, limited to the performance of a single act, as to pay a sum of money or receive it, there is no power but to do the particular thing, for the act in such a case is not an end to be accomplished by a resort to means. But a power to accomplish a general end includes the means, unless specified. ,

The power under consideration is limited to a particular transaction, but general as to the means of performance.

It was to collect the amount secured upon the steamboat by mortgage. If the mortgager refused to pay, the attorney was authorized to bring suit. This involved the necessity of counsel, and the agent was authorized to employ them, and bind his principal for compensation for their services. It is said the agent should have paid them the money, this he might not have had ; he was not bound to advance it for his principal, and the execution of a note, binding the principal for such payment is not beyond his authority. In this instance-the express words of the power authorizes him to sue, or settle, or secure the amount and to employ attorneys. This confers upon him the full power to bind his principal for payment by executing a note, binding upon the principal, or by any other ordinary form of indebtedness.

The remaining question is, could the attorney bind Gano with the other parties named ?

It appears'that Gano, Allen and James Blackman were mortgagees upon half the steamboat mentioned, to secure them as sureties of Lewis F. Blackman for two several promissory notes for $3,000, payable to Piatt, Athearn and J. B. Croft.

Thus it appears that all the parties to the note were payees and sureties, with a mortgage to protect the sureties upon half the steamboat in question, seeking the same fund to satisfy the original liability, and were all bound together. Hence they might all become well bound jointly to pay the expenses of procuring payment out of the mortgaged property ; and would all have an interest in removing any liens or incumbrances which might stand in the way. Others thus having an interest in the subject matter, the attorney for Gano might.unite with them to pay the expenses of a common object. So far as the question of apportionment is concerned, it is between the parties themselves, and a question which we are not called upon to determine. Without any other proof, it would be equal between the joint makers. But the payees are-entitled to the full amount.

We are satisfied that the facts and the law authorize a judg" ment for the full amount of the note, with interest, for the plain-1 tiffs. Judgment for Plaintiffs.


author: Birchard, C. J.

text:
    Alexander McLaughlin vs. John Russell.
    Where a person has admitted that he was the author of a libel in a certain newspaper any other newspaper of the same impression may be read to the jury, and is not secondary evidence.
    in actions of libel, where the libel is ambiguous, witnesses who know the parties and circumstances, may be called to state their opinion and judgment as to the person intended.
    This is a Writ or Error to the Court of Common Pleas of Columbiana County.
    The original action was Case, for Libel.
    A verdict and judgment were rendered in the Common Pleas for Russell, to reverse which this suit is brought.
    The declaration contains three counts.
    The first count, after the usual formula, alleges, ££ that before the committing of the grievances hereinafter mentioned, the said plaintiff had written and caused to be published in a certain newspaper dated August 13, 1845, and called ££ American Patriot,” printed and published in Wellsville, in the county and State aforesaid, a certain article or communication signed £ J,’ of and concerning certain articles or communications before that time, to wit, before' said 13th of August, published in the newspaper aforesaid, signed £ Alexander McLaughlin,’ and reputed to have been written by the said defendant-: Said article or communication of the plaintiff, signed ‘ J,’ as aforesaid, being .of an innocent and inoffensive character, and written and published from good motives, and for justifiable ends; yet the defendant well knowing the premises, but contriving and wickedly and maliciously intending to injure the plaintiff, and to bring him into public scandal and disgrace, heretofore, to wit, the 20th day of August, 1845, at Columbiana county aforesaid, falsely, wickedly and maliciously, did write, compose, and publish in a certain newspaper called “ American Patriot,’ published at Wellsville, in Columbiana county, Ohio, on said 20th day of August, 1845, of, concerning, and against the plaintiff, a certain false, slanderous, malicious, and defamatory libel, containing among other things, the following false, scandalous, malicious, defamatory 'and libellous matters, of, and concerning, the plaintiff, that is to say — ” Then follows the article signed “ Alexander McLaughlin,” set forth with proper innuendoes.
    The second and third counts are as follows: “ And the defendant, further contriving, did cause and procure to be written, composed, and published in the newspaper £ American Patriot,’ in said first count as aforesaid, published in the place in said count, as aforesaid, and dated the 20th day of August, 1845, a ■certain other false, scandalous, malicious and defamatory libel, against and concerning the plaintiff, in one part of which said libel there was and is contained the following false, scandalous, malicious, defamatory, and libellous matters, of and concerning the plaintiff, that is to say — ” &c.
    . 1. On the trial of this cause the plaintiff, by his counsel, called witness, Alexander McBain, who testified that he was editor and publisher of the American Patriot, a newspaper published in the town of. Wellsville. That an article signed £ J,’ in manuscript, was brought to his office, to which was appended a note, requesting the publication in said paper of the article £ J,’ and that on no consideration should he disclose the author’s name: which note was signed J. Russell, and he believes it to have been written by the plaintiff. ' •
    That said article J, was published in said newspaper, and is marked A, of the date of the 13th of August, 1845.
    That afterwards the article £ B,’ signed A. McLaughlin, declared on, was published on the 20th of August, 1845, in said paper.

      That only one article signed J, and one reply to the same, was published in said paper. That from three to five hundred impressions of said article, being the circulation of said paper, were published.
    The plaintiff then called Henry Paul, a witness, and asked him the following question, which was excepted to by the defendant, and the objection overruled and the question put:
    What did you hear McLaughlin say, if any thing, as to who was the writer of the article J ?
    The said witness then stated that at an interview with the defendant, he, the defendant, stated that he had found out that the article J. was written by the plaintiff, and then read from a newspaper which he had in his possession, the defendant’s answer to the article'J. And from the conversation the witness understood the article of defendant to relate to the plaintiff.
    McLaughlin said that Mr. Russell was the man who wrote the article J, and that he wrote the reply to it, which was then read from a newspaper in McLaughlin’s possession. The plaintiff’s counsel then produced a newspaper and placed it in the hands of the witness and asked him to read the article signed ‘ Alexander MaLaughlin,’ and say whether it was the same that had been read to him by the defendant.
    To which the defendant’s counsel objected, unless it be proven that the newspaper exhibited to the witness was the same identical paper from which the defendant read to the witness, or that notice was given defendant to produce that paper —or proof of its loss —and insisted that secondary evidence could not be admitted.
    The Court overruled the objection, and the witness being asked to look at the article signed ‘ Alexander McLaughlin,’ said that “ I believe it is the very same article.”
    To which rulings the defendant excepted.

      2. Be it remembered that on the trial of this cause, after Henry Paul had testified, the plaintiff, to support the issue upon his part, gave evidence that defendant carried to the office of the American Patriot, a communication in manuscript, for publication; that the said manuscript is lost or destroyed. The ’ editor and publisher was then called up and gave evidence as ■ follows : “ I made an alteration in the article which I did not suppose materially altered the meaning of the article, and published it in the American Patriot of August 20, 1847; that an edition of between three and four hundred was printed and circulated.” The plaintiff then offered in evidence the American Patriot of August 20, 1847, containing the alleged libel, to which the defendant objected. Objection overruled and paper admitted; to which decision defendant excepts.
    The plaintiff, in further support of the issue upon his part, offered to prove, by witnesses on the stand, as follows; that they were acquainted with the parties, that they had read the said publication, and that from their knowledge aforesaid, and from reading the alleged libel, they understood and believed that the plaintiff was the person meant and intended in said libel as the “ Mr. J ” against and concerning whom it was published — to the admission of which defendant objected. Objection overruled — evidence admitted. Plaintiff excepts.
    To which said rulings the defendant excepts, and his bill of exceptions are here allowed him, and the same are ordered to be made part of the record.
    The errors assigned are,
    1. That the declaration is insufficient.
    2. That a number of the Patriot was improperly admitted.
    3. That the Court erred in admitting a witness to prove who was intended to be referred to in the libel.
    4. Other errors.

      William K. Upham, Umstaeter Stanton and C. M. Aten, for Plaintiff in Error,
    cited the following authorities :

      Tarpley v. Blabey, 2 Bing. N. C. 435; Cooke’s Law of Def. 92, 93 ; Stark on Ev. part 4,861; 2Greenl. Ev. 337 ; Fisher v. Clement, 10 Barn. & Cress. Rep. 472; Haire v. Wilson, 9 Barn. & Cress, Rep. 643; 13 Eng. Com. L. 393 ; Van Vich-

      ten v. Hopkins, 5 Johns, Rep. 211; Gibson v. Williams, 4 Wend. Rep. 320; Stockley v. Clement, 4 Bing. Rep. 162; 2 Hill’s Rep. 507 ; 1 Stark, on SI. 328, 350; 3 Wend. Rep. 394; Miller v. Maxwell, 16 Wend. Rep. 91; Goldstein v. Foss, 4 Bing. Rep. 489; 16 Wend. Rep. 1.

      C. L. Vallandigham, for Defendant in Error,
    cited the following authorities:

      Nichols v. Packard, 16 Verm. Rep. 83 ; Croswell v. Weed, 25 Wend. Rep. 621 ; Bourke v. Warren, 12 Eng. Com. L. Rep, .140; Tarpley v. Blabey, 29 Eng. Com. L. Rep. 387; 2 Stark, on SI. 50 ; 2 Stark, on Ev. 460 ; Cooke on Def. 146 ; 2 Greenl. Ev. 394; Bourke v. Warren, 12 Eng. Com. L. Rep. 138; Commonwealth v. Buckingham, Thatcher’s Crim. Cases, 29 ; Haywood v. Foster, 16 Ohio Rep. 88. ■
   Birchard, C. J.

The objection taken to the declaration is, that it does not show upon its face that the libel was upon Russell. This is a mistake. The declaration avers that the publication was of, concerning and against the plaintiff; that defendant published, &c., the false-, scandalous, malicious, defamatory and libellous matters of and concerning the plaintiff, that is to say, &c., setting forth the libel, with inuendoes, averring that certain words meant the plaintiff. The words of the libel were actionable and were alleged to have been published of the plaintiff. ' The particular words said to have been intended to indicate him are referred to, and averred to have meant him. This was sufficient. It would have been good on demurrer, and is clearly so after verdict.

In support of the second assignment, it is urged that there should have been proof that the paper offered in evidence was the same one used by McLaughlin to the witness, or that its loss should have been accounted for. It is to be observed in reference to this objection, that the proof was that several hundred sheets of the impression containing the libel, had been struck off, that this paper offered in evidence, was one' of the impressions, and identical with that read to the witness by McLaughlin. The objection that this paper was but secondary evidence, is not founded upon correct premises. It was no more secondary in its nature, than would be one duplicate of one original contract, secondary evidence to the other. Any one. number of the entire impression, was as much an original as any other number. There is no reason why any difference should be made between the numerous.sheets of the same impression. All must of necessity be alike.

Again, the objection that the published article had been changed in an immaterial matter from the manuscript, should not have excluded it from' the jury. The witness Paul stated that McLaughlin read it to him from the newspaper, stating that he was the writer. This was evidence from which the jury might have found him, the writer, against the evidence of the editor, and thus sustain the first count of the declaration. Or they might infer from this acknowledgment, that he authorized or procured the editor to make the immaterial alteration, and so sustain the allegation of the other counts, that he caused and procured the libel to be written, &c. ■ The evidence was competent, and properly admitted. It tended to support the declaration. Whether it was sufficient or not was for the jury to determine. It was for them to say whether the editor’s statement, or the statement of Paul, was to be received as truth. The only remaining inquiry is, whether witnesses may be Called to prove the party intended and meant, by an ambiguous libel." In this case the defamation was directed against Russell by the name'of J. The substance of the averment is, that the writer by J. meant the plaintiff Russell. The colloquium, specific averments and innuendos, are all of them sufficient, if true, to point to the meaning of the writer and leave no doubt upon the mind as to the party intended to be defamed. But how shall the Court and jury ascertain the truth or falsity of them? The defendant pleads not guilty. He would not admit them. Must a slanderer escape punishment because he has had the ingenuity to so compose a sladerous article that strangers would not know whom he intended to vilify, while at the same time his victim is so referred to, that none of his would mistake the application ? The rule contended for, would work this result. Fortunately that rule is as illy sustained by the authorities as by right reason.

Starkie says the colloquium and other averments which connect the libel with the plaintiff, must be proved, and that it is usually shown by the testimony of one or more witnesses who knew the parties and circumstances, and who state their opinion and judgment as to the intention of the defendant, to apply his words or libel to the parties or circumstances as alleged. It is sufficient if the witness in the first instance, state his general belief and opinion as to the defendant’s meaning, without disclosing his reasons, leaving it to the defendant if he thinks proper, to inquire as to the grounds and reasons which support that conclusion. Stark. Ev. part 4, p. 861.

Numerous authorities have been adduced to the same point; Thatcher’s Crim. Cases, 29; Commonwealth v. Buckingham, Starkie on Slander, vol. 2, p. 50; Cooke on Def. 146; 2 Greenleaf Evi. 394; Bourke v. Warren, 12 Eng. C. L. 138.

On the other hand two cases are relied upon from New York as supporting a contrary doctrine. Did they both come up to the point we should refuse to follow them. But the leading case of Van Vechton v. Hopkins, 5 Johns. 24, does not reach this point. The point decided in Van Vechton, which is supposed to bear on this question was, that a witness could not be permitted to testify to the construction of a libel, unaided by any circumstances within the knowledge of the witness, except what he derived from reading the libel. To have held otherwise, would have been against every principle of law says Judge Spencer, and we concur with him. This case does not purport to overrule the law as stated in Starkie.

The case of Gibson v. Williams, 4 Wend. 326, however, does. The Court, in that case, copy the very passage which I have quoted above, and remark that Mr. Starkie cites no case as authority in support of his position, and express the be- ^ ^at none *s to ^0UnrJ and that it is not sustained any other writer upon the law of libel or the rules of evidence.

With due defference we think the learned Judge who delivered that opinion, was altogether mistaken as to the state of the authorities and the opinions of law writers, and not less mistaken in supposing that the case of Van Vechton v. Hopkins, the only one to which he referred, overruled the text in Starkie. It is evident to my mind that Judge Spencer, Kent and Thompson, when assenting to that decision, thought of nothing of the kind. They never suspected that their decision would work such a result.

Judgment affirmed.


author: Avert, J.

text:
    William H. Brisbane vs. James M. Stoughton and another.
    A power of attorney executed to a third person, authorizing him to sell mortgaged premises on default of payment, for the benefit of the mortgagee, is a valid power for such purpose 5 and after a bona fide sale made under the power, proper notice having been given by advertisement, no equity of redemption remains in the mortgagor, or those claiming under him.
    Such sale will be binding, though made during the pendency ol a bill in chancery to foreclose the mortgage.
    This is a Bill in Chancery reserved in Hamilton County.
    The original bill in the case was filed August 16, 1842, in the Superior Court of Cincinnati, against James M. Stoughton, a child then about nine years of age.
    The bill set forth certain proceedings by Davis B. Lawler, to foreclose a mortgage upon a lot in Cincinnati, of which Stoughton died seized, a few months before the commencement of them; a sale under the decree obtained; a deed to Graham; a conveyance by him to the complainant and the omission to make young Stoughton a party defendant, in consequence which his interest did not pass to the. purchaser. The bill averred that James M. Stoughton was entitled to redeem, and prayed that he might be compelled to do so by a given time by paying the mortgage debt and interest, or be forever barred.
    To this bill the defendant Stoughton, by his guardian ad litem, (his mother) demurred ; but his demurrer was overruled, December 7, 1842, and leave given to answer.
    Stoughton then answered, insisting that inasmuch as he was not made a party to the proceedings in chancery under which the complainant acquired title, he could not be affected by them; that under the proceedings only two thirds of the lot were sold, for which no more than a fair price was paid; that the price so paid discharged the mortgage debt, which, once extinguished, could not be revived; and consequently, there being no mortgage debt, nor any mortgagee, he was not bound to redeem, but was entitled to hold one third of the lot by descent free from the incumbrance of the mortgáge.
    No replication was filed, but the case went to hearing on bill and answer.
    On hearing, the Court was of opinion that the complainant was entitled to call on the defendant to redeem, by paying the mortgage debt and interest, and decreed accordingly.
    From this decree the defendant appealed to the Supreme Court, where the cause came on for hearing at the April Term, 1845, and a decree was entered affirming the right of the complainant to call on the defendant to redeem ; but directing an account to be taken to ascertain the amount of the mortgage debt and interest, after deducting rents and profits, and remanding the case to the Superior Court of Cincinnati for execution of the decree, with leave to make George Graham, the grantor of the complainant, and his predecessor in the possession of the property, a party, in order to ascertain the amount of rents and profits received during his possession.

      On the 16th October, 1845, the defendant filed his petition in the Superior Court, making Graham a party and praying an account.
    On the 4th November, 1845, Graham filed his answer to this bill, admitting his possession, but setting up that he claimed under a sale by virtue of a power of attorney, brought into Court, to satisfy the mortgage debt; stating further that he was advised to deny the right of Stoughton to redeem, but referring that matter to the Court; that, doubts being suggested as to his title acquired under this sale, proceedings were instituted in the usual way, to foreclose the mortgage; that the defendant, Stoughton, was not made a party, through mistake^; that a decree was had against the two other heirs, and defendant Graham became the purchaser under it.
    This answer was accompanied by a cross-bill, setting up that Graham was owner of divers claims against the estate of J. M. Stoughton, deceased, and insisting that, if the,Court should be of opinion that the defendant Stoughton was entitled to redeem, the equity of redemption should be sold for the satisfaction of those claims. To this cross-bill the administrators of J. M. Stoughton, deceased, and James M. Stoughton, the son, were made parties.
    To this answer there was a general replication, and a general demurrer was filed to the cross-bill.
    At the July Term, 1847, the Superior Court sustained the demurrer and dismissed the cross-bill, at Graham’s costs. In the same decree the Court ordered a reference to the master, to state an account according to the principles of the decree of the Supreme Court. From this decree of the Superior Court there was no appeal..
    An account was accordingly taken, and filed January 24, 1848, and exceptions were taken.
    The cause came on for further hearing on the report and exceptions at the January Term, 1848, of the Superior Court; and a final decree was entered overruling the exceptions; allowing the defendant, Stoughton, to redeem on payment of a certain sum, being the mortgage debt, and interest, with certain deductions; perpetually enjoining Graham from setting up any claim upon the premises ; barring, in the event of tion, within six months, all Stoughton’s equity of redemption, and ordering payment of costs by complainant.
    The complainant, Brisbane, alone appealed from this decree.
    The mortgage was given by David O’Brien to Matthew Lawler, to secure the payment of $3000, and the power of attorney referred to in the answer of Graham, was executed by O’Brien on the same day to Davis B. Lawler, and authorized him to sell the mortgaged premises in the event of non-payment of the mortgage debt, at public auction, after giving notice, &c. The premises were afterwards sold by O’Brien to Stoughton, deceased.
    The mortgage debt not being paid,- after extending the time of payment, Davis B. Lawler, in pursuance of the power, sold the mortgaged premises, during the pendency of proceedings in chancery to foreclose the mortgage.
    The power of attorney referred to in the answer of Graham, was executed on the same day with the mortgage and authorized Lawler, in the event of the non-payment of the mortgage debt, to sell the premises at auction after giving notice, &c.; and under that power the premises were sold to Graham, and while proceedings were pending in chancery to foreclose the mortgage.

      Henry Starr and John Jolliffe, for Complainant.

      Chase &f Ball, for Defendants.
    Several questions arise for consideration:
    I. What and who are now before this Court ?
    1. I understand the rule to be that where one only of several parties appeals, only so much of the case is brought up, as is necessarily connected with his interests, and the questions made by him.

      Now the matters set up in the cross-bill of Graham are in no wise connected with the question as to the right or duty of redemption, as between Brisbane and Stoughton. Besides, these matters were considered and disposed of by the Superior Court at the July Term, 1847, when Graham’s cross-bill was dismissed at his costs; which decree was final as to those matters, and from which there was no appeal. It seems quite clear, ■therefore, that those matters, which are not touched by the decree appealed from, but had been before finally disposed of, cannot now be brought into discussion. It will be remembered that Brisbane alone appealed from the last decree, Graham did not.
    . 2. Nor, as it seems to us, can the other matters set up by Graham to defeat the equity of redemption, be properly brought before this Court, at this time. Brisbane filed his bill, calling on Stoughton to redeem or be foreclosed. Stoughton answered asserting his absolute right in the fee. The Court held that he was bound to redeem by paying the mortgage debt, with interest. This debt had been reduced, by rents and profits received or enjoyed by Graham, under whom Brisbane claimed.
   Avert, J.

It is claimed in the present case, that the defendant, Stoughton, has a right to redeem the premises in controversy ; and it is further claimed, that although in some former stage of these proceedings that right might have been resisted, yet it is now too late, because, it is said, no question touching the right to redeem is before the-Court on this appeal.

The case is in this Court, by appeal from a decree of the Superior Court of Cincinnati. The Court therein affirms that the sale made by Davis B. Lawler,- under the power of attorney, as set forth in the answer of George Graham to the cross bill of James M. Stoughton, did not divest Stoughton of his equity of redemption, but that he was entitled to redeem, on paying the mortgage debt; and accordingly, the Court decreed that Stoughton ' should be allowed to redeem the premises, and that Graham and his assignees be forever barred from setting up an f claim to them. Complainant, Brisbane, takes the appeal. Now by the express terms of the decree., the right to redeem the ises was settled in favor of the defendant, Sotughton; and to the prejudice, as the whole case showed, of the complainant. The complainant derives title through Graham, and if Graham took the premises free from Stoughton’s equity of redemption, then such equity ought not to be set up and sustained against the complainant. If the Superior Court had power to decree a right or title in the defendant, an appeal would seem but a barren privilege, if the decree so rendered could not be changed or reversed in the appellate Court. To take this appeal, was no doubt the right of this complainant; and he thereby, in the opinion of the Court, brought up the whole case, or at least so much as should be deemed necessary to secure him a hearing upon any decree rendered in the case. '

Considering the case then as properly appealed, the question is to be decided by the Court, whether the power of sale executed by O’Brien, the mortgagor, to Davis B. Lawler, be a valid power; and if so, whether the subsequent sale and conveyance by Lawler, to Graham, were in accordance with that power, and were otherwise unobjectionable, so as to pass the title in fee to Graham.

- The mortgage to Matthew Lawler, and the power to Davis B. Lawler, were executed on the same day; and were, as is obvious from the instruments themselves, intended to secure the sum of $3000, and provide for its prompt payment when due. There can be no dispute, but that this power uses language entirely suited to the purpose for which it appears to have been designed. The words are: “ and in case default shall be made in the payment of the said sum of three thousand dollars, on the said 29th day of May, 1833, I do hereby authorize and empower the said Davis B. Lawler, his executors and administrators, absolutely to sell, dispose of and convey, at public auction, the same hereditaments and premises, to the best bidder, and make and execute to the purchaser thereof a full and:'effectual deed of conveyance of the same, and to rece*ve ^ie amount °f such purchase money.” Here is the con-of the parties, fully, distinctly and deliberately authorizing a sale of the premises, on the happening of a certain event. There is no pretence that any fraud, or imposition, was practiced by or upon the person authorizing the sale. The power, both in its form and the mode of its execution, under our statute, is sufficient to pass the title to real estate. What reason, then, can be given for pronouncing a bona fide sale under this power, a nullity ? With respect to the common mortgage, it is true, the doctrine has been established that the mortgagor has in equity a right to redeem. But it is a principle perhaps not less universally recognized, that after an actual and fair sale, under a trust deed, or mortgage deed with a power to sell, there is no equity of redemption remaining. The cases noticed, show the existence of this principle in England, and in many of the States. But an authority supposed to be directly in point, is found in 10 Ohio Rep. 208. The power in that case, is not more clear and explicit than the one now relied upon. Nothing in that case case shows that the power then before the Court, was not a power given to sell mortgaged premises.

But if the power of attorney was at the time of its execution a valid authority to sell and convey, what has since occurred te defeat or destroy it ? The bare delay to proceed for a year, could have no effect to impair any right once secured, nor can we perceive how an agreement, even upon a consideration, to delay for a given time, can be construed into an obligation to delay indefinitely,.or for any time longer then that agreed upon, or in any way into a waiver of the power. There is no release of the power, nothing, from all that appears, that was ever designed by the parties to operate as a release. On the contrary, action under the power was only suspended for a certain fixed period. The time agreed upon for delay passed, the money was still left unpaid, and then, after advertising the time and place of sale, as was necessary and proper under the power, the premises were at length sold to the highest bidder. Nothing appears in any of the proceedings, as5-they are viewed by the Court, to impair the title of Graham under his deed executed by virtue of this power. If the power was sufficient to ize Davis B. Lawler to sell, and the measures adopted were in pursuance of the power, and without fraud, the pendency of the bill to foreclose the mortgage could not render the sale invalid. The proceedings in Chancery were not contemplated by the contract of the parties, nor in any wise necessary. They might have been discontinued after the sale, instead of being carried on to a final decree. As such proceedings do not of themselves constitute any release, they can be objectionable only as they may have an effect upon the sale, or show fraud in the parties. Nothing of this kind appears in proof, and we have not been able to see any thing that should give the defendant, Stoughton, the right of redemption, which is claimed for him. He will therefore not be allowed to set up such right in the case.

Decree accordingly.


author: Birohard, C. J.

text:
    Luke Thayer vs. James Brooks.
    An action may be maintained in Ohio, to recover damages for an injury to property in Ohio, occasioned by the diversion of water, though the act which occasioned the diversion may have been committed in Pennsylvania.
    The rule of damages in an action for a nuisance, is the injury actually sustained at the commencement of the suit.
    Whether an action will lie for draining a swamp, for the purposes of cultivation, thereby diminishing the volume of water which had previously run past, and supplied a mill with water; quere.
    This is a Writ or Error to the Court of Common Pleas of Ashtabula County.
    The original action was Case, for nuisance in diverting- water from the mill of the defendant in error. The plea was not guilty. The jury returned a verdict for the plaintiff, upon which judgment was rendered, to reverse which this writ was brought. Pending the trial the following bill of exceptions was taken:
    On the trial of this cause the plaintiff called Caleb Hayward who gave testimony tending to prove the plaintiff’s possession of the mill described in the declaration, and that said mill had been driven in part by a stream of water flowing from a swamp situate in the State of Pennsylvania where defendant resided, and that said swamp was situate in part on a farm in possession of defendant, within that State. The plaintiff then inquired of the witness whether the defendant had cut a ditch across his said farm situate in Pennsylvania, by which the water was diverted from plaintiff’s mill. To this question and the answer thereto the defendant objected that this Court could not hold the defendant responsible before the tribunals of this State for any act done upon his own lands situate within the State of Pennsylvania; which objection was overruled by the Court and the testimony was admitted; to which decision the defendant excepted.
    During the further progress of the trial, the plaintiff, among other evidence, gave testimony tending to prove that the mill mentioned in his declaration was .situated upon a stream having a part of its source in a swamp of some two hundred and fifty acres, situated in the State of Pennsylvia, and partly upon the lands of the defendant. That defendant had cut a ditch across the sand ridge lying north of said swamp through which much of the water collecting in said swamp flowed, and thus prevented a portion of the water from finding its way to the plaintiff’s mill, and through his land as it had been accustomed to do, and that his mill and land as possessing a valuable privilege of water power, was diminished in value by reason of sqch diversion of water by the defendant.
    The defendant then gave testimony tending to prove that plaintiff’s mill had ceased to do business before the defendant had dug said ditch and had become useless from the rotting of its timbers and settling of some parts of the frame, and the failure of the dam, and that at no time during the period mentioned in the declaration could said mill have been useful had the whole water of said swamp flowed into said stream.
    The defendant also gave testimony tending to prove that he could not drain his lands in any other direction than that which he had done, without trespassing upon the lands of other men. That he had made efforts and expended large sums of money to drain said lands towards the stream on which the plaintiff’s mill is situated, but such efforts had failed to effect the object. He also gave testimony tending'to prove that a portion of the water collecting in said swamp flowed east into another stream, and a part filtered through the sand ridge lying north of the said swamp, and a portion found its way into the stream that drove the plaintiff’s mill. That in digging said ditch he was actuated solely by a desire to reduce his swamp lands to cultivation, and that such object had been effected, and his swamp lands rendered productive.
    The defendant then requested the Court to instruct the jury that they ought not to find damages against defendant for diverting water from plaintiff’s mill if said mill had become use.less prior to defendants diverting said water, and had remained in that situation during the whole time for which damages were claimed in said declaration.
    But the Court refused such instruction, and informed the jury that they were at liberty to give such damages as they believed the plaintiff had sustained by the mill-site having been diminished in value in consequence of the diversion of said water.
    The defendant further requested the Court to'instruct the jury that he (defendant) had a right to drain his swamp lands, for the purpose of cultivation, and that such a right would be paramount to the plaintiff’s claim for the water to supply his mill. And if defendant were unable to drain said swamp into the stream which drove the plaintiff’s mill, without trespassing upon the lands of other people, he would be at liberty to drain them in such direction across his own lands as was necessary t re¿uce sa¡d swamp to a state of cultivation. But the Court refused such instruction and informed the jury that the defendant, in such case, would have no right to drain such lands in a direction that should prejudice the rights and privileges of plaintiff.
    The defendant asked the Court further to instruct the jury, that the owner of a mill gains no exclusive right to water standing in a marsh or swamp, which may filter through the earth into the stream that drives his mill, over the proprietor of the soil who wishes to drain it for cultivation. But the Court refused such instruction. To each of which decisions the defendant excepted, and filed his bill of exceptions, which is sealed by the Court in order that it may be made a part of the record in said cause.
    The errors assigned are in substance, that the Court erred in permitting plaintiff to give in evidence acts done by defendant on his own soil in Pennsylvania, in refusing to give the instructions asked for, and in those actually given.

      Giddings Randall, for Plaintiff in Error.

      Wilder, Ranney, Simonds and Cadwell, for Defendant.
   Birohard, C. J.

The error first assigned, presents for our consideration the question whether case for nuisance can be maintained in this State, the property injured lying wholly within the jurisdiction of the Courts of the State, but where the acts causing the injury complained of were done wholly without the jurisdiction, and in another State. The actions of trespass and trespass on the case for injuries to land, are local and in all cases where the act done and the injury sustained are wholly in a foreign jurisdiction, the place of the injury is the place of the trial. This doctrine is universally recognized as a rule of the common law; Watt v. Kinney, 23 Wendall, 484; 4 T. R. 503. It was sustained by Chief Justice Marshall after a full

. examination in Livingston v. Jefferson, 4 Hall, 78. The action in that case was for a trespass upon lands in New and was brought in Virginia. It was dismissed for want of jurisdiction. Judge Story affirms the doctrine in his conflict of laws, sec. 554. Real actions must be brought in the forum rei sitae; and mixed actions are properly referrible to the same jurisdiction.” The position has been presented by plaintiff’s counsel as conclusive of the case upon the first assignment of error. We have not so considered the law. The act was done in Pennsylvania, the injury which was occasioned by that act, was sustained in Ohio. In such a case it is believed the suit would well lie in either State. When an injury has been caused by an act done in one county, to land, &c., situated in another, the venue may be laid in either; ” 1 Chitty PI. 299, and cases referred to.

Our next inquiry is, whether the Court erred in refusing the instructions requested by plaintiff, and the instructions given adversely thereto. The injury complained of in the declaration is, that the mill was rendered less useful for want of the water which had been wrongfully diverted, and became much injured and deteriorated in value. The Court instructed the jury that the owner of the mill might recover for the injury sustained by the diminution in value of the mill-site, consequent upon the diversion of the water. This was going too far. Supposing the party liable at all, he was only liable, under any -form of declaration, for the damages actually sustained prior to the commencement of the suit. For the permanent injury to the realty, or rather the prospective injury, the party had made no claim in his declaration. He could not legally recover damages which he had not claimed. His recovery should be according to his proof and allegations. Under the charge as given, a jury would have been justified in finding damages equal to all the injury the premises would ever sustain, supposing the nuisance were to continue forever, which would be clearly wrong. For this error the judgment must be reversed.

The remaining assignments raise-a question of considerable ’ interest', and .one upon which we are not willing to commit ourselves without a full investigation, aided by counsel.

It is this: How far can one acquire a right to the water accumulating in the swamp lands of another, and at what point may he interfere to prevent the owner from draining and improving such lands ?. The instructions asked, presuppose that the facts of the case were such that the jury might have found that the diversion of water complained of, was of such only as filtered through a bank into the stream passing the mill of defendant in error, and that the act of diversion, the digging of ditches, &c., were wholly on the land of the plaintiff, done under a claim of right,- and for the laudable purpose of improving the quality of his farm. He claimed that he had a legal right to do the act, and requested the Court so to instruct the jury. The question is, was he bound to surrender up the use of his land in order that the defendant might have the use of the water that would in a state of nature collect upon it and filter into the defendant’s mill stream ? In cases when waters have collected into a running stream, the rights of the riparion owner are well settled. No one above or below him can use or divert it to his prejudice. . The owner of land through which the stream flows must so use and apply the water, as to work no material injury to his neighbor below him who has an equal right to the use of the water; 3 Kent’s Com. 354. But the draining of a swamp upon one’s own land, whereby filtration into a running stream is destroyed and the volume of water thus diminished, may perhaps present a case to which the maxim “de minimis non curat lex” is strictly applicable. With these suggestions we leave the point to await the time when its determination shall become necessary to the decision of a cause.


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    James S. Armstrong vs. Sidney S. Clark.
    Tim common count in debt for use and occupation is good, and in such count it is not necessary to allege the character in which the plaintiff sues, whether as assignee of the reversion or otherwise.
    A special pica amounting to the general issue is bad on demurrer.
    When it is claimed the Court of Common Pleas has erred in excluding a witness, tho bill of exceptions must contain statements showing distinctly the error complained of.
    This is a Writ or Error directed to the Superior Court of Hamilton County.
    The original action was Debt, and the declaration contained only the common count for,.use and occupation. The pleas were:
    1. General issue.
    2. Nil habuit in tenemmtis.

    3. Eviction by title paramount, in one George W. Garret-son.
    4. That plaintiff is the grantee of the reversion, and before any part of the rent claimed had accrued, defendant, by deed, assigned the premises to George W. Garreison, and put him -in possession.
    Upon the three first pleas issue was taken, and a special demurrer put in to the fourth, assigning as cause of demurrer among other things that the special plea amounted to the general issue.
    The Court sustained the demurrer to the fourth plea, and the cause being submitted to the Court without a jury, judgment was rendered for the plaintiff.
    On the trial, a bill of exceptions was taken, which is as follows :
    On the trial of this cause, the plaintiff, to support the issue on his part, offered in evidence the original lease from Josiah Lawrence to defendant, and the conveyance by said Lawrence to P^nt^ the premises leased.
    The defendant, to support the issue on his part, offered in evidence an instrument of writing signed by the defendant, conveying all his interest in the lease to George W. Garretson. He then offered as a witness the said Garretson, to whose competency the plaintiff objected, and the Court spstained the objection ; whereupon the defendant excepted.
    The defendant then, to support the second issue, to wit, the plea nil habuit in tenementis, offered in evidence a deed from the Auditor of Hamilton county to George W. Garretson, showing a sale of the land for taxes, to said Garretson.
    The plaintiff then proved that the ' taxes for the year 1839, on the premises in question, were duly paid by said Josiah Lawrence ; also, that Garretson had brought an action of ejectment on said tax title, against the defendant, which Armstrong had defended, and succeeded in his defence in the Supreme Court, and that the tenant, Clark, had never been, in fact, evicted.
    The errors assigned are —
    1. That the Court erred in sustaining the demurrer to the fourth plea.
    2. The Court erred in rejecting the testimony of Garretson.
    3. The Court erred in deciding that the Auditor’s deed did not sustain the second plea in bar, or that nil habuit was not a good plea in bar to an action for rent.

      D. Raymond, for Plaintiff in Error.

      Charles Fox, for Defendant.
   Avert, J.

The errors assigned in this case are, first, that the Court sustained the demurrer to the fourth plea. This is a special demurrer, one of the causes assigned being that the plea amounts to the general issue; and in the opinion of the Court, the plea is liable to the objection stated. If the facts as set forth constitute a defence in the case, they go to the foundation of the plaintiff’s action, deny, in effect, the use and occupation, and form a good defence, under the general There was no error, therefore, iri sustaining the demurrer.

2d. The Court erred in rejecting the testimony of George W. Garretson, the assignee of the term. '

It is stated in the bill of exceptions, that the defendant offered in evidence the instrument of writing marked ££ C.,” (the assignment from Clark to Garretson,) and then offered as a witness, George W. Garretson, the assignee of Clark, to Whose competency the plaintiff objected. The Court sustained the objection, and the defendant excepted.

Before the judgment of the Court will be reversed, we must be satisfied that an error has been committed; it must be specifically pointed out. This record does not show upon what precise "ground the witness was rejected. Perhaps it was because he was the assignee of the lessee, with covenants as set forth in exhibit ££ C.” If such were the fact, it would answer no purpose in the case to decide whether in that, the judgment of the Court was right or wrong; for it is not stated that it was for that cause, nor does it appear that it was not for some other cause, that the witness was excluded. This error, in the opinion of the Court, is not well assigned. ’

The third error assigned is, in deciding that the Auditor’s deed did not sustain the second plea, or that nil habuit was not a good plea.

By the bill of exceptions it-appears that after the defendant had offered in evidence the auditor’s deed to Garretson, the plaintiff proved that the taxes for the year 1839 were duly paid, that Garretson had brought ejectment on his tax title against the defendant, that Armstrong defended and succeeded in his, defence, and that Clark had never been evicted.

The Court upon the evidence before them found all the issues for the plaintiff, and we are not able from any thing shown in the record, to determine that the judgment upon the-facts was erroneous.

No judgment of the Superior Court is discerned pronouncing Nil habuit a bad plea.

The defendant urges further, as a ground of reversal, that the declaration is defective.

There is but a single count, and this the usual common count in debt for use and occupation. It is one that has long been recognized and sanctioned in England and in this country. The counsel for the defendant insists that the plaintiff was in the character'of an assignee and that the pleadings ought to show such character. If a special count on the lease had been proper and necessary, and actually inserted in the declaration, then the position would be correct. But a general count being good, for the recovery of rent, the defendant cannot deny that it was suited to the plaintiff’s case, till the evidence is given or the case shown ; then if the evidence is not applicable, or sufficient under the declaration, the record must be so made up as to point out the error. Nothing of this kind has been done in the present case. We find no error in the judgment, and it must be affirmed.


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    Luther A. Hall and another vs. A. Reed.
    When a replication puts in issue the whole merits of the plea, after a yerdict by the jury or a finding by the Court, the judgment will not be disturbed though the replication may be informal.
    The Supreme Court will not reverse the judgment of the Common Pleas, for error in refusing to grant a new trial, unless the bill of exceptions discloses the whole testimony.
    This is a Writ or Error to the Supreme Court of Seneca County.
    The original action was Assumpsit, commenced in the Court of Common Pleas, by the defendant in error, upon two notes executed by the plaintiffs in error, one for $255 23, the other for $260 53.
    The pleas were the general issue, and a special plea in averring that the original consideration of these notes was a note for $500 executed to said Luther A. Hall, that Hall transferred said note to the Mechanic’s Saving’s Institute of Columbus, that said notes were given to take up said $500 note, and were the property of said Saving’s Institute, and contained usurious interest.
    The replication, with a protestando as to usurious interest, &c., traversed the averment that the notes were the property of said Institute, and averred that they were the property of the plaintiff, concluding to the country.
    The case was submitted to the Court, and both issues found for the plaintiff.
    Thereupon a motion was made for a new trial upon the ground that the evidence did not warrant the finding, and that the replication was no answer to the plea; which motion was overruled.
    A writ of error was sued out from the Supreme Court, and the judgment of the Common Pleas affirmed.
    To reverse the judgment of the Supreme Court this writ is prosecuted, the errors assigned being the same in substance as those assigned in the Supreme Court, on the circuit. s

      Watson 8f- Johnson, for Plaintiffs in Error.

      W. R. Noble, for Defendant.
   Read, J.

The plea in substance was that the Saving’s Bank had taken illegal interest, and the notes were consequently void.

The replication in effect denied all this, and insisted that the notes were the property of the plaintiff. So the Court found. After verdict we will not reverse a judgment for mere lack of form, where the whole merits have been put in issue and determined. But in this case the replication is sufficient even in form.

As to the motion for a new trial, whether that was rightly overruled or not depends upon the facts. These are disclosed in a long bill of exceptions, which does not state that it exhibits all the evidence.

I am not disposed to argue out the facts, but simply content myself with saying that we are not satisfied from any thing appearing upon the record, that the Court erred in their finding.

Judgment affirmed.