text:
    *William R. Morris v. George B. Way and others.
    A deed of trust passes the legal title, and though given to secure a debt, and' so drawn as for most purposes to be treated as a mortgage, yet as between the grantor and the grantee the estate passes so that nothing remains in the grantor which oan be levied upon, and sold upon execution at law.
    The Miami Exporting Company had the oapacity to receive a conveyance to-secure the payment of a just debt; and where such conveyance stipulates for the security of such debt, and also for the security of notes, which embrace unlawful interest, the deed is not wholly void, but will bo treated as good for the security of the valid debt, and null as to those only which, were void for want of capacity in the bank to receive them.
    This is a bill in chancery, reserved in the county of Lucas.
    The object of the bill is to quiet the complainant in the possession of lot No. 85 in the Port Lawrence division of Toledo; andl the whole case turns upon the effect to be given by the court to-the title of the complainant as set forth in the agreed facts, which are in substance as follows :
    On July 23, 1836, Comstock made his draft on Palmer for the-payment of $10,000, in four months after date, at the Merchants’’ Bank in New York, to the order of Daniels, all parties being at the time resident in Toledo. This bill was discounted by the Miami Exporting Company, at their bank in Cincinnati, and $200,, under the head of interest and exchange, reserved thereon. Of this bill $3,005.60 was paid in New York at maturity, and for the balance, three bills, dated November 26, 1836, wore drawn by Palmer upon Comstock, payable to the order of Potter, at New York; one for $2,425.47, at sixty days ; one for $2,475.98, at four months; and one for $2,526.12, at six months. On the back of the original bill, in the handwriting of Judge Wright, are the following memoranda:
    Amount due in New York..................................... $10,000 00-
    Paid there......................... 3,005 60
    6,994 40
    Exchange..................................................... 104 91
    7 099 31
    1-3 bill at 60 days.......................................$2,366 44
    Discount.................................................... 24 83
    Amount of bill 2,391 27

      Amount'at 4 months...... ..............................$2,366 44
    Discount.................................................... 48 86
    Exchange at 1 per cent..............................„. 24 15
    Am’t bill................................................ 2,439 45
    Do. at 6 months....................................... 2,366 44
    Interest..................................................... 72 46
    Exchange, 2 per cent................*.................. 48 78
    $2,487 68
    Am’t bills..............................................................$7,318 40'
    Add Attorney’s fees................................................ 20 00
    7,338 40
    The bills are............................................................ 7,427 57
    Too much by........................................................... 89 17
    Add interest and exchange on that.............................. 4 36-
    Indorsed on last bill...................................................93 53
    And upon the last bill is the following indorsement:
    “$93.53 have been paid *on this bill, and it is to bo given up on paying the balance, viz: $2,432 59. J. G\ L., GasMer.”

    The three bills were protested for non-payment.
    Prior to April, 1837, the Miami Exporting Company, at its branch office in Conneaut, had loaned to Comstock $4,600, for which he gave his note to said bank, maturing April 24, 1837.
    On April 23, 1838, an arrangement was made between Corn-stock and' the company, by which further time was given for the payment of the balance due upon each of said loans, and Comstock made two notes, each payable two years after date, to and at the mother bank; one for the Cincinnati loan, amounting to $8,422.29, signed by himself and Palmer, and the other for the Conneaut loan, amounting to $4,719.60, signed by himself, Daniels, and Knapp. He also at the same time executed three notes of the same date, each for $394.27, payable at six, twelve, and eighteen months, for the interest on the said two notes for the last eighteen months they had to run, the interest for the first six months having been paid at the time the notes were given. On the back of the respective bills are tho following memoranda, in the handwriting of the complainant, who negotiated tho settlement:
    First Bill............................................................... $2,425 47
    Damages........... 145 50
    Protest.................................... 1 50
    Postages........................................................ 1 25
    Interest from 28th January............................... 195 02
    $2,766 74
    Second Bill............................................................. $2,475 98
    Protest.......................................................... 1 50
    Postages............................................'........... 1 35
    Damages........................................................ 148 56
    Interest from 29th March.................................. 170 77
    $2,798 00
    *Third Bill..................................................... $2,432 57
    Damages....................................................... 145 95
    Protest.......................................................... 1 50
    Postages........................................................ 1 00
    Interest from May 29....................................... 147 13
    $2,728 15
    And at the time of the arrangement, the following statement of accounts was made by Morris to Comstock:

      Stephen B. Comstock in account with Miami Exporting Company. To the amount of the note in branch at Conneaut,........ $4,600 00
    Interest to April 24,1837.......'................................... 119 60
    To one note payable to the mother bank and the interest.......................................... $2,798 00
    Second note and interest............................ 2,728 15
    Third note.............................................. 2,766 74
    A.dd attorney’s fees and expenses................ 130 00
    --$8,422 89
    On April 23, 1838. a deed was executed by Comstock to the company, conveying, among other, the property in question. This deed, after the usual form of warranty deeds, has the following provision : “ This conveyance is, however, made subject to the following trusts and conditions, to wit: The said Comstock is indebted to the Miami Exporting Company in the sum of $13,142.49, for money" heretofore loaned to said Comstock by said company, and which he is unable at this time to pay, it is therefore agreed that further time for the principal sum shall be given for two years from the date thereof, he, the said Comstock, to pay the interest thereon during the said term, each six months in advance; the interest for the first six months having this day been paid, and for which said principal sum the said Comstock has executed his notes (describing them as above, including those for the interest). But it is expressly agreed that if the said Comstock shall fail to pay any one of said notes as it falls due, then the said company and their assigns shall be at full liberty to sell and convey in fee simple absolutely so much *of said land hereinbefore described as shall and may be necessary to satisfy the amount due and in arrear, with interest, and all expenses of the sale thereof, and make an absolute conveyance in fee simple to the purchaser; and at the expiration of two years, when the principal debt becomes due, if said Comstock, his executors, etc., shall fail to pay the same, or any part thereof, then the company or their assigns shall and may sell and convey, for the best price that can be had for the same, so much of the said land as shall and may be necessary to satisfy the amount of said debt and interest then remaining unpaid, and the expenses of sale . . . And if the said Comstock shall pay the said notes at maturity, or shall pay the whole thereof with interest, and all expenses incurred after due and before sale of the premises at any time, the said company and their assigns shall thereupon forthwith, on demand, release in due form the said premises to said Comstock, or his heirs.”
    At the time of the execution of this deed, Morris gave to Com-stock a memorandum made at the foot of the statement of account before referred to, as follows :
    “In relation to the trust deed from Mr. Comstock to the Miami. Exporting Company, made April 23,1838, it is agreed that in caso a sale is required to be made by the bank of any property, it shall be made at Toledo, and notice given to Comstock, or his executors thereof, before sale made. . . W. R. Morris,

      “Att’y and Sol. of the Miami Exporting Go.

      “April 24, 1838.”
    This trust deed was recorded in Lucas county (Ohio) records, April 24 1838.
    On January 17, 1842, the company assigned the debts of Com-stock to Moore, Beeves & Dana, by deed of general assignment. ■On September 19, 1844, Comstock executed to Morris an absolute deed and release of all his right and equity in and to the premises in question, and Morris then gave up, to be canceled, the notes aferesaid.
    *This deed, after describing the lands as the same conveyed in the deed of trust, has this clause : <! And the object of .this deed is to release and convey to said Morris, as assignee of the Miami Exporting Company, the equity of redemption in all of said premises, and vest in him, his heirs and assigns, the absolute title to said lots of land in said deed of trust, in consideration of the debt secured thereby in connection with said deed of trust, .and the lien and right thereby secured.” And then follows the usual clause of general warranty.
    On June 3, 1846, Morris, pursuant to notice and the power contained in the deed of trust, proceeded to and did sell the premises .at public auction, and by such sale acquired all the rights communicated thereby. At the time of said sale, notice was given that the title of the company would be disputed by these defendants.
    At the April term, A. D. 1838, of the court of common pleas for Lucas county, and after the execution and record of the deed of trust aforesaid, one Baymond recovered a judgment against Com-stock, which was kept alive until the levy and sale hereinafter mentioned.
    In January, 1846, execution was issued upon this judgment and levied upon the property in controversy. Under this levy a sale was made to the defendant, Way, which was confirmed at the May ■term, a. d. 1846, of said court, and in June following, the sheriff executed to him a deed conveying the property in question.
    . In November, 1836, the current rate of exchange by the banks in Cincinnati on New York, was one-half per cent, premium ; one ■percent, on ninety-day bills; one and a half per cent, on four months’ bills, and the rate was increased according to the time the bill had to run. And at all times since the commencement of these transactions, the legal rate of interest in New York was ■seven per cent.
    The prayer of the bill is, that the defendants release to the complainant all their interest in the premises, and that an injunction be allowed, restraining them from entering into *the possession of the premises, or in any way interfering with the complainant in the quiet enjoyment thereof.
    Young & Waite, Tilden & Baker, for complainant, cited the following eases:
    Loring v. Melendy, 11 Ohio, 355; Moore v. Burnett’s Lessee, Ib. 335; 1 Pow. on Mort. 9-15; Seymour v. King, 11 Ohio, 342; Heighway v. Pendleton, 15 Ohio, 758; Rands v. Kendall, Ib. 671; & Ohio, 23.
    Lane & McBane, for defendants, cited the following authorities :
    Miami Exporting Company v. Clarke, 13 Ohio, 1; Blydenburg’s Usury, 107, 113; Cow. 111, 200; 4 Peters, 205; 7 Paige, 639; 8 Ohio, 251.
   Birchard, C. J.

This is a bill filed under section 14 of the chancery act. Swan’s Stat. 703. And the main question to be determined is, whether the complainant has the legal title to the lands in controversy. But to dispose of this, it becomes necessary to examine and settle sundry other points of considerable importance. Among these disputed matters are involved the powers of the Miami Exporting Company, as a banking institution. In ■Clark’s case, 13 Ohio, 1, the right of the Miami Exporting Company to do business as a banking institution was fully examined •and sustained by every member of this court. The dissenting judge going so far as to recognize its banking powers upon a supposed contemporaneous construction of the charter; the state having borrowed from it, deposited with it, and legislated upon it—the judiciary having sustained its rights as a bank. This is •his language:

“The Miami Exporting Company was incorporated in 1803; it immediately assumed the exercise of banking powers, and continued to claim them, and to exercise some of them uninterruptedly the period of thirty-nine years. For a part of that period, its notes constituted the largest portion *of what was called money in the west. The state, more than once, borrowed from it, deposited with it, legislated upon it, and treated it as a bank. The judiciary have, at all times, until now, enforced its rights as a bank, and have placed its affairs in liquidation, under a law applicable to banks only. After this lapse of time, contemporaneous construction, after this course of life, and death, and burial, I find abundant reason to hold it to have proper banking franchises.”

The majority of the court, as well as the learned judge who so ably dissented, held that the Miami Exporting Company had the right to exercise banking powers, but did not feel at liberty, on an inquiry touching their mode and manner of exercising that right, to overlook the step by which it had been acquired. Acting upon the well-settled principle, that a corporation by its charter takes nothing but what is expressly granted, or necessarily incident to the powers expressly granted, they did decide; and we are now enabled to come to the same opinion without a dissent, that the act of incorporation of 1803 contained no grant of banking powers, and that if driven to that, and compelled to rely upon it or upon any construction that the judiciary had ever placed upon it to maintain its franchise, then it could not be sustained.

As to the supposed usage of some of its banking powers, uninterruptedly for the period of thirty-nine years,” none of the majority of the court were able to find that fact; the proof did not show it, in that or in any other case that was ever before the court, but, on the contrary, it is a notorious fact, that as a bank the Miami Exporting Company was among those that for many years lay in ruins, dormant, sleeping apparently a perpetual death, and that some new hands, at a very modern period, had seized upon its remains and endeavored to breathe therein the breath of life— making it, so far as usage was concerned, a now creation. There was no such long-continued and uninterrupted usage *as would ripen into a right to take a rate of interest forbidden by statute.

Nor did the court then feel that it was safe for suitors, or their reputation, to decide that the power to bank existed, without any effort to trace the steps by which the company acquired its franchise of banking, or to ascertain when the same was first acquired, and under what restrictions.

This labor was performed, and it resulted, in Clarke’s case, that the court held that the act of 1803 did not confer banking powers, and that the right to exercise them must be claimed under the acts of 1815, and of February 23, 1816, and subject to the provisions of the latter act against unlawful interest.

We 'find no cause to question the views thus,entertained, and if the decision in Paddleford’s case, 8 Ohio, 258, is sound law, we believe that the principles settled in Clark’s case rest upon foundations that can not be shaken. That case settles these propositions :

1. That the Miami Exporting Company was prohibited from taking a greater rate of interest than six per cent, per annum in-advance, on its loans or discounts.

2. That where money was loaned on a contract for more than six per cent, the contract was void for want of power in the corporation to make it.

8. That such contract being prohibited, and against public policy, and void, the law will not raise out of such a transaction an implied promise to repay the money actually loaned.

It was upon this third point, chiefly, that the learned dissenting judge held that case wrongly decided. Yet, we are all of opinion that this point was well decided, and that it was settled in conformity to sound principle, and sustained by authority. I have dwelt more upon Clark’s case than I would, because some of the counsel who have argued this case have seemingly misunderstood, or paid very little attention to that. If we can judge from the arguments they have written, some portions of it must have been entirely ^overlooked. In that case it was found by the jury that the original loan was tainted by the forbidden agreement to pay and receive more than six per cent, interest. The jury were then told that if the original loan was not tainted with usury, the bank might recover for the amount actually loaned on the common money counts, although the subsequent paper given for the renewal of the first notes, was so tainted (p. 19). On reconsideration, we reaffirm this distinction. It is a matter too well settled to need any authority for its support beyond our own.

With those rules for our guide, we are prepared to examine the facts in this case under consideration. The loan of $10,000, made-at Cincinnati, was for six per cent, and no more. There is nothing connected with the case to show that there was any such original agreement as was found in Clark’s case by the jury. As between Comstock and the Miami Exporting Company, the money thus advanced could, under the rule in Clark’s case, have been recovered under the common counts in assumpsit, notwithstanding the extra interest included in the note subsequently given to-' renew the loan. Those new notes only would be void. The debt, would remain, and would constitute a good consideration for a. mew promise ; and the new contract would be binding, if liable to no other objection. The deed of April 23, 1838, was given to ¡secure a bona fide indebtedness. It purports to divest the entire legal title of Comstock in the premises, and to vest the title in the company as trustee. It is not a mortgage, strictly speaking, but a deed of trust. If it took effect at all, it left nothing but an ■equitable right in Comstock, to which a judgment lien could not attach, and which could not be levied upon at law. This deed purports to be given to secure several claims, among them a note of $4,719, discounted at the Conneaut Branch. So far as this last note is-concerned, there is no pretense that it includes any interest that the bank was forbidden to receive. As to this claim, the deed may well stand as a security, if void as to others. The principles of the common law will not require *the avoiding of the entire contract, if any part of it can be sustained. There is no doubt of the power of the Miami Exporting Company to receive and hold a deed in trust for the payment or the security of ,a just debt—one that it could lawfully contract. And although the deed also professes to secure other notes in which an unlawful rate of interest is embraced, it could only be held null as to them. This is a view as fatal to the defendant as though every claim named in the conveyance were without objection, because, as is .above stated, there would remain nothing but an equitable claim to the lands conveyed by Comstock, which could be reached only in a court of equity. But Way has proceeded at law by execution, and has acquired nothing by his purchase. He had not even the naked legal possession of a debtor to levy upon. Complain.ant, in the meantime, under the quitclaim of Comstock, has secured a release of all his equity, and holds now whatever legal • estate was ever vested in the Miami Exporting Company, and that, united with the release of Comstock, vests in Morris both it he entire legal and equitable title to the premises.

Injunction made perpetual.


source: Caselaw Access Project

author: * Avert, J.

license: Public Domain

text:
    The Little Miami Railroad Company v. John Perrin. The Same v. Jacob Kershner.
    Where land has been entered upon by the company, valued under a judge’s warrant, and an appeal from the valuation has been taken and earned to the common pleas, it is error in that court to order the warrant and pro- . ceedings under it to be quashed.
    Though the warrant contain no statement of an attempt to purchase the land of the owner; of his disability in law to contract; or of his absence from the country; or that the.land appropriated is indispensable for the construction of the road, the common pleas has jurisdiction of the case by appeal.
    *This is a writ of certiorari directed to the court of common pleas of Clark county.
    The object of the writ is to review the proceedings of that court, in a matter originating under section 11 of the act incorporating the Little Miami Railroad Company. That section is as follows :
    “The corporation is hereby empowered to purchase, receive,- and hold such real estate as may be necessary and convenient in accomplishing the object for which the corporation is granted; and may, by their agents, engineers, and surveyors, enter upon such route, place, or places selected as aforesaid by their directors, ■as the line whereon to construct the said railroad, and it shall be lawful for the said corporation to enter upon, and take possession of and use all such lands and real estate as may be indispensable for the construction and maintenance of said railroad, and the accommodations requisite to and appertaining unto them; and may also receive, hold, and take all such voluntary grants and donations of land and real estate as may be made to said corporation to aid in the construction, maintenance, or accommodation of said road or ways; but all lands or real estate thus entered upon and used by said corporation, and all earth, timber, gravel, and other materials, needed by said company, shall be purchased of the •owners thereof, at a price to be mutually agreed upon between them; and in case of disagreement of the owner as to the price of .any lands or materials so required for said road, or if the owners are under any disability in law to contract, or are absent from the ■country, application may be made either by said owners, or by said corporation, to any judge of tho court of common pleas, within which said lands or materials may bo, specifying the lands or materials so required or already appropriated, and thereupon said judge shall issue his warrant in writing, directed to the sheriff of the county, requiring him to summon an inquest of three freeholders of the county, who shall not be stockholders *nor interested therein, to appear at, or near said land or materials to be valued, on a day named in said warrant, not less than five nor more than ten days after issuing the same; and if any of the persons do not attend, the said sheriff shall forthwith summon as many as may be necessary to fill said inquest, and the persons so impaneled shall, on their oaths or affirmations, value the damages which the several owners will sustain by the use or occupation of the lands or materials, or property required by said company, having due regard to the benefit such owners may derive from the location and structure of said road, and said inquest shall reduce their valuation to writing, and such valuation when paid or tendered to said owners, or deposited in any bank to their credit, or their proper repi’csentatives, shall entitle said company to the materials, use, and occupation of said land for the purposes of said road, and all estate and interest therein, as fully as if it had been conveyed by the owners of the same; and every sheriff and freeholder so acting shall receive one dollar per day for his services to be paid by said company; either party may within ten days after such valuation is made, appeal from the same to the court of common pleas of the proper county, by giving notice thereof to the opposite party, or by filing in the clerk’s office, a copy of such valuation, with notice thereto annexed; and said court may for good cause shown, order a new valuation, and on final hearing the court shall award costs according to equity.”
    On June 25, 1846, one of the associate judges of the court of common pleas of Clark county, under the authority given in this section, issued his warrant to the sheriff of the county, requiring him to summon three freeholders to appear on the 1st day of July following, to make the valuation as provided for in that section; that is, the damages which tho several owners named, would sustain by the occupation of said land by the company. The freeholders met at the time appointed, and upon the different promises, and made the several valuations. On the 7th day of the same month of July, the warrant was filed in the office of *the dork of the common pleas, and with it the return of the sheriff, and also of the freeholders, all these proceedings, including the .several valuations in writing, were indorsed on the warrant. On the same day two of the persons whose damages had been valued, to wit, Perrin and Kershner, filed notices of appeal in the clerk’s office, and on the 24th of September of the same year, Perrin and Kershner filed, in said court of common pleas, each a separate mation to quash the warrant and other proceedings in the cause.
    Perrin to quash the same, so far as they affected his property, for the reasons following: 1. That it did not appear in the writ or other proceedings, that the land was indispensable for the construction and maintenance of the road. 2. It did not appear in the writ or other proceedings, that the company had, prior to the date of the writ, made any attempt to purchase the land by agreement with Perrin; nor that Perrin was under any disability in law to contract, nor absent from the country.
    He also moved to quash the valuation for other causes, which, as they did not appear in proof or upon the papers, are not here noticed.
    The causes assigned for quashing the warrant and proceedings .in the ease of Kershner are the same as in the case of Perrin, together with this additional cause, to wit, that the inquest did nob value the damages in money, but for part of them awarded that the company should make a way across the road upon Kershner’s promises.
    At a subsequent term of the court, on February 23, 1847, the aforesaid motion to quash was allowed in each case, and the suit ,and proceedings, so far as they affected the property of Perrin ' and Kershner, were ordered to be quashed; whereupon the company took a bill of exceptions, in which the proceedings are set •out at length.
    Charles Fox, for plaintiff in certiorari.
    William A. Rogers, contra.
   * Avert, J.

The questions to be determined in the present .case all arise out of proceedings said to be authorized in section 11 of the charter.

For the construction of this road, as well as all other railroads, turnpike roads, other public roads, and canals, power was intended to be given to the extent necessarily required for accomplishing the object. Such a power has been so often conferred, and so long sanctioned by the courts of the country, that np one appears now to dispute the right to grant it. In carrying on and completing a work like this, as it must pass over the promises of a great many land-owners, a provision for ascertaining the damages to any of them, by the judgment of disinterested persons, becomes indispensable. In estimating the damages occasioned by railroads and canals, election is always given to estimate and deduct the benefits, and this mode of fixing the amount to be paid to the owner of property has received the sanction of our courts. In the course of proceeding authorized by this charter there is nothing unusual, and we have only to see whether that which has been actually pursued is in conformity with its requisitions, or if not in exact conformity, whether the proper remedy of the injured party has in the present ease been adopted. The charter-provides that the company may take possession of all lands indispensable for the construction and maintenance of the road, but that the lands thus entered upon shall be purchased at a price agreed upon; and in case of disagreement, disability of the owner to contract, or his absence from the country, application may be made to any judge of the court of common pleas, who shall thereupon issue his warrant to the sheriff. This warrant requires him to summon three freeholders, not stockholders, nor otherwise interested, who shall value the damages and reduce their valuation to writing. From such valuation either party may appeal to the common pleas; and that court, for good cause shown, may order a new valuation, and on final hearing the court shall award costs-according to equity. In this case two of the land-owners, being ^dissatisfied, did appeal. They carried their appeal into-court; they of course intended to make it available, and give to the appellate court jurisdiction, and in truth they complied so-minutely with the directions of the law, that the court did without doubt obtain complete jurisdiction.

If this be so, what next was to be done by the parties taking-the appeal ? The statute provides for the case by authorizing a new valuation and a final hearing. Now, instead of proceeding under the appeal, the parties who brought it into court sought to treat it as a nullity, or to convert it into a certiorari. Appeals can not be used for such a purpose ; no principle or practice authorizes it, and it is only necessary to describe the proceedings to see-that in this there is error. Even if the defects alleged to appear upon the face of the warrant could have been properly noticed after the appeal, for the purpose of quashing the warrant, they are not supposed to be fatal in the case. Yet here is an important interest, that must at all times, and by some mode of proceeding, be fully protected. There should indeed be a provision for securing it in the early stages of the proceeding. In the section authorizing the appropriation, no specific mode of redress is indicated.

The objection first named, concerning “such lands as may be-indispensable for the road,” is the only one that can be of much interest to the owner, and we see no reason why that may not be a subject of inquiry before the common pleas, under the appeal. We consider the parties when there as having lost no right which previously existed; and as the land appropriated would perhaps-in some cases far exceed the quantity deemed necessary for the road, the court might be induced to refuse a valuation. But whatever may be the proper remedy for any alleged grievance of the land-owner, the proceedings ,by the appellants in this case can not be sustained.

There was error in these orders of the court of common pleas, and they will therefore be reversed.

Read, J., dissented.


author: Hitchcock, J.

text:
    *Jacob Baker v. Lessee of Michael D. Gittings and Others.
    When a person is in possession of land, in pursuance of a contract of purchase, and fails to comply with his part of the agreement, an action of ejectment will lie against him at the suit of the vendor, without a previous notice to quit.
    This is a writ of error, directed to the court of common pleas of Muskingum county.
    The defendant in error prosecuted an action of ejectment in the court of common pleas of Muskingum county against the plaintiff, who, in that case, was made defendant in place of the casual ejector.
    The cause came on for trial in said court of common pleas, at the November term, 1846, and was, by consent, submitted to the court instead of a jury.
    On trial the court found the then defendant guilty, and rendered a judgment accordingly. The defendant below then tendered a bill of exceptions, which was, by the judges of the court, signed and sealed, and made part of the record in the case, and is as follows:
    “ Bo it remembered that on the trial of this cause, in the court of common pleas of Muskingum county, at the November term, A. D. 1846, of said court, the evidence on both sides being closed, and it having been proved that the defendant had entered upon tho lands in dispute, in pursuance of a written contract entered into between the lessor of the plaintiff of the first part, and others of the second part, who had sold, assigned, and transferred all their interest in said contract to the defendant, of which sale and transfer the plaintiff had notice, and that by said contract the .said party of the first part had agreed to sell the said lands to the parties of the second part, and that the defendant claimed to .hold the possession of said premises under said contract, *and that said parties of the second part had broken the covenant in •said contract, by which they were bound to- pay the taxes assessed on said lands, and no proof having been made that the plaintiff had, prior to the service of the declaration in this case, made any •demand of the defendant, or given him any notice of his intention to rescind the said contract, or to resume possession of the said lands, the counsel for the defendant moved the court for a nonsuit, which motion the court overruled, and gave judgment for'the plaintiff. To which opinion of the court the defendant, by his counsel, excepts and prays the court to sign and seal this his bill of exceptions, which is done accordingly.”
    The defendant below sued out from the Supreme Court his writ •of error to the common pleas, and prayed the reversal of the judgment below, assigning for error :
    1. That the declaration and notice in ejectment were not served on the tenant in possession, ten days before the first day of the term, to which said declaration and notice were returned “ served.”
    2. That the court erred in giving judgment for the plaintiff, in the absence of any proof that the plaintiff had, prior to the serv •ice of the declaration in this case, made any demand of the defendant, or given him any notice of his intention to rescind the said contract, or to resume possession of the said land.
    .3. That the said judgment was given in favor of the plaintiff in the court below, when, by the laws of the land, it ought to have been given in favor of the defendant below.
    Goddard, for plaintiff in error.
    C. C. & T. Converse, for defendant.
   Hitchcock, J.

The bill of exceptions in this case does not show the nature of the title upon which the plaintiff below sought to recover. It may be presumed, however, that he *had the legal title, as there was evidence that he had entered into a written contract to sell and convey the premises in controversy to others, and that the defendant below claimed possession as assignee of that contract. The question is, whether taking so much of the evidence as is exhibited to us, and it does not appear that we have all that was offered, the then plaintiff should have been •nonsuited.

The first error assigned is, that the declaration and notice in ■ejectment were not served on the tenant in possession ten days before the first day of the term, to which the declaration and notice were returned “ served.”

The declaration in the case was entitled as of the April term, 1846, and with the notice, was filed on the 5th day of August of the same year. The notice was served on the 25th day of July proceding, as appears from the return, which is sworn to on the 4th day of August. On what day of the month tho August term •of the court commenced, we are not informed. If it was on the •day the return was sworn to, or' on the day the declaration and notice were filed, ten days intervened between the service of the notice and the next succeeding term of the court. But suppose ten days did not intervene, what is the consequence? Section 54 of the practice act, Swan’s Stat. 662, provides “that no plaintiff shall proceed, in ejectment, to recover any lands or tenements against any casual ejector, without ten days’ previous notice being given to the tenant in possession, if any there be.” Now here has been no recovery against the casual ejector; but the tenant in possession, at his own request, was ma'de defendant, and the proceedings against him were delayed until the November term of the court. He has had more than ten days’ notice. Had judgment been rendered against the casual ejector at the August term, without the requisite notice to the tenant in possession, such, judgment would have been erroneous. But such judgment might liavo been rendered at the next succeeding term with propriety, had notice been given to the tenant, prior to the return day of the process. Besides, there *is'nothing to show that any objection was made on this account at the trial, and it is too late-to make it upon writ of error.

It is assigned for error in the second place, that the court gave-judgment for the defendant in error without any proof that said, defendant had, prior to the service of the declaration in this case, made any demand of the plaintiff in error, or given him any notice of his intention to rescind the said contract, or to resume the possession of the lands.

The facts as disclosed in the bill of exceptions are these: The defendant in error entered into a contract with some person or persons, by which he agreed to sell the land in controversy; those persons had assigned their interest to the plaintiff in error, and Jbe claims to hold possession under this contract. He had violated some of the covenants of the contract, in failing to pay the taxes assessed upon the land. Whether by the terms of the contract the vendor had a right to the possession does not appear. But he had had no notice to quit, nor notice that the vendor intended to rescind the contract, except the notice served with the declaration in ejectment.

From anything which appears in the case the tenant in possession had nothing more in the land than amere equitable interest. The vendor had the legal title, and in ejectment the legal title-must prevail. When I speak of legal title, in this connection, I mean the legal right of possession. A vendor, who claims merely by contract, may, by the terms of his contract, have the right of possession' secured to him, and in such case, so long as he complies with that contract, may defend at law. But without such ■right secured by the terms of his contract, he has but a mere equity, of which he can only avail himself in a court of equity.

By the practice in England, and in New York, there are certain cases in which, prior to the commencement of an action of ejectment, the tenant must have notice to quit. Whether this was a principle of the common law or first introduced by statute is perhaps doubtful. It prevails in cases * where the relation of landlord and tenant exists. In such case the tenant enters-having a legal right of possession, and that right continues until put an end to by the landlord. But this relation does not exist between vendor and vendee, where there is no other evidence of right on the part of the vendee than a mere contract of purchase-And it has been frequently decided in Now York, where the necessity of notice to quit is held to, with as much strictness as in England, that as between vendor and vendee no such notice is-necessary. 7 Cow. 747 ; 5 Wend. 26; 1 Wend. 418; 21 Wend. 233.

In this state, however, there is no rule of practice which requires a notice to quit, before the commencement of an ejectment. In the case of Spencer v. Markell, decided in 1826 (2 Ohio, 263), the court say “the doctrine of notice to quit, as it is applied in actions of ejectment, depends on statutory provisions and on rules of court, which have often been changed, and differ materially in different tribunals. The only notice required by the laws of this-state, is a notice of ten days to the tenant in possession, before a plaintiff in ejectment can proceed to judgment against a casual ejector. This notice has been considered as legally given by the service of the declaration, with the common notice attached, ten days before the first day of the term to which it is returned.” I am not aware of any statutory provision or of any rule of court,. changing the law, as hold in this case.

Inasmuch, then, as the defendant in error had the legal title to-the premises in controversy, and the plaintiff nothing but an equity, the court of common pleas did not err in refusing to enter a judgment of nonsuit, and in rendering a judgment for the defendant in error. The judgment of that court is therefore affirmed.


author: Birchard, C. J.

text:
    *Daniel B. Webster and others v. Mary E. Harris and others.
    A certified copy from the office of the county recorder .of an instrument not required to be recorded, can not be given in evidence as proof of the execution and contents of the lost original, but with other proof of the-execution of the instrument, it may be evidence to prove its contents.

      Where the intention is palpable, and the consideration has been paid, the contract will be so reformed as to conform to the manifest intention of the parties.
    Where the terms of a power of attorney are departed from under circumstances that justify the belief that the departure was made pursuant to the parol assent of the principal, the contract will be enforced, if in other respects there are no obstacles.
    Where the general and specific prayer of a bill are sufficient to meet the principal object of the complainant, the prayer is sufficient.
    This is a bill in chancery, reserved in the county of Athens.
    The object of the bill is to .quiet complainant’s title to the north half of section 19, and the whole of fraction 19, in township 6, range 12, in the Ohio Company’s purchase, and the execution of a contract for the sale of the same.
    It charges that, in 1805, Moses Cleveland, being the owner of the section and fraction, by Payne Cleveland, his attorney in fact, sold the same to Archibald Johnson for $1,610, to be paid, part in horses, part in four lots in McKeesport, and part in cash. The contract of sale was reduced to writing.
    Johnson delivered the horses, and paid all the money except ninety-five dollars before November, 1806, when Moses died before the ninety-five dollars was paid, or the four lots conveyed. In November, 1807, on petition of Kirtland, administrator of Moses, the court of common pleas of Trumbull county, Ohio, where Payne resided, ordered the contract tó be executed ; which has been done on the part of Johnson, and the administrator made Johnson a deed in 1808, which has been lost, and was •never recorded,-and in which, as well as in the said contract and proceedings, the land is imperfectly described, and no legal title passed. Johnson in 1808 conveyed *the fraction and north half of section to Stingecomb, who possessed and paid taxes on tho same till a short time prior to 1823, when it was sold for taxes. Complainants have now both of these titles, to wit, the tax title and Stingecomb’s title. They have been since 1823, and are now, in possession and have a legal tax title, and pray to be quieted against defendants, who are the heirs of Moses Cleveland and claimed title; and also for an execution of said contract of sale. Stingecomb and Johnson’s heirs are also made defendants.
    The heirs of Moses answer, admitting their heirship, and that they claim title to the land, and say that they are ignorant of the other matters in the bill.
    The other defendants are in default for answers.
    The defendants’ counsel object to the execution of the contract of sale:
    1. Because the power of attorney is not proved.
    2. Because the contract of sale does not pursue the power.
    The facts of the case, necessary to be noticed, as bearing upon these objections, are substantially as follows :
    There is on file a certified copy, from the recorder’s office in Trumbull county, Ohio, of a power of attorney from Moses Cleveland to Payne Cleveland, dated May 7,1804, in Windham county, Conn., acknowledged before Goddard, notary public, recorded in Trumbull county, December 11, 1804, empowering Payne Cleveland, “ to take care of, manage, superintend, receive, bargain, selb and convey all the land ” which Moses had “ in the Ohio Company,” and also his “ Salt Spring ” land in Trumbull county. This paper has no seal or subscribing witnesses. The notary, before whom it was acknowledged, is dead. This copy has also been recorded in Athens county, and a copy of this last record has been also put on file in this case.
    Moses Cleveland owned two “shares ” in the “Ohio Company.” In one of these shares was this section and fraction *19, and in the other was section and fraction 13, which adjoins section and fraction 19.
    Moses Cleveland died in November, 1806. He left three children, of whom one has since died without issue. The remaining two children, the defendants, were minors, aged 7 and 11 years at the time of his death. Mrs. Harris was married in February, 1814.
    Mrs. Betsey Cleveland, of Trumbull county, Ohio, testifies that she is the widow of Camden Cleveland, deceased, aged 83; that Payne, who was brother to Moses and Camden, came to Ohio, Trumbull county, in 1803 or 1804. She understood that her father, Aaron C., and her brother Moses had bought some rights in the Ohio Company; that Payne and Moses owned them together, and that Payne had power of attorney to sell them. Payne and her husband, about a year after he came on, went down the river to see the land. On the way back, she understood, he sold the section and fraction to one Archibald Johnson, of McKeesport, Alleghany ■county, Pennsylvania. He brought home several horses, which, together with some lots in McKeesport, he said he got for the land. One of the horses died, the others were sold by Payne to Slay-maker & McG-ilbert, who ran off without paying for them. Aaron ■died long before 1800.
    Hon. George Tod, deceased, was Payne’s executor. David Tod, Esq., son of George Tod, has searched his father’s papers, but finds no power of attorney, nor any other papers relating to the case, except the original contract of sale executed by Payne to Johnson, which he found after this was brdught. This is dated .July 17, 1805. The witnesses arc both dead. By this contract Payne, “ as agent for Moses,” sells to Johnson a tract of land, etc., ■containing 640 and 262 acres, etc., for $1,610, as follows: One stud-horse and two others, specified at $520; lots Nos. 6, 26, 22, and 25 in McKeesport, at $800, and a balance, $390, in horses, in two equal yearly payments, to Payne, as agent.
    By a copy of a record from the office of the clerk of common *pleas in Trumbull county, it appears that in November, 1807, Kirtland, administrator of Moses, filed a petition in said court, setting forth this contract, and that it was made under a power of attorney, etc., and that Johhson had paid all except $95, and praying the court to order a deed to Payne for the lots, and a deed to Johnson for the land—which the court accordingly ordered; but the land is imperfectly described, the county in which it lies being left blank.
    Shortly after this order of the court, Johnson conveyed the lots to Payne, and paid the administrator, Kirtland, $95. There is no direct proof of a deed for the land made under this order. Indorsed on the back of the contract is Johnson’s receipt for such a deed, together with the receipt for the horses, etc., by Payne and Kirtland,
    In 1808, Johnson conveyed the fraction and north half of the .section to Stingecomb, of Alleghany county, Pennsylvania, by deed of that date, which is the only deed on record in Athens county prior to the tax sale. This deed recites-that Johnson derived his title under a “decree of the court of Trumbull county.”
    Stingecomb is still alive, and testifies that he paid Johnson two ■dollars per acre, a full price for the land, and came on and occupied said land, and had his deed recorded in May, 1809. Johnson told him he had paid up for the land, and that Payne had a power of attorney to sell it, and that he had seen the power of attorney. Johnson was Stingeeomb’s brother-in-law. He went to some place in Ohio twenty years ago, and Stingecomb understands he died ■insolvent, but does not know where he died, nor who has the control of his papers, or whether he had any administrator, or who his heirs are, or whether they are to be found. Stingecomb says he paid the taxes till 1818 or ’19, and that Paul Fearing, of Marietta, was his agent. Fearing also confirms this.
    David Putnam, of Marietta, says he, as agent for Moses, paid the taxes on the two entire shares, from 1805 to 1807. Woodbridgc •paid them as agent for Moses from 1799 to 1805. *In 1806, Payne and Kirtland jointly requested him to undertake the payment of taxes on Moses’ lands, which he accordingly did, and paid the taxes till 1819, omitting the section and fraction 19. Kirtland furnished the money. His last letter, inclosing twenty dollars, was in October, 1819. In 1820 he refused to send funds, saying ho had settled his administration account. Since 1808, the one-half section and fraction have been taxed in Stingeeomb’s name, and the other lands in M. Cleveland’s name, or his heirs.
    Esther Cleveland, Moses’ widow, and one Adams, were appointed administrators of Moses in Connecticut, and General Ripley, of Trumbull county, Ohio, acted as their agent in Ohio. Among 'General Ripley’s papers relating to their business is found a paper purporting to be a settlement between Kirtland, as administrator, and Payne, on behalf of the heirs of Aaron C., which' contains •charges in favor of K., for “settling witli A. Johnson,” in December 1807—“ money sent David Putnam to pay taxes ”—for “fees on money collected of Johnson”—“going to McKeesport to sell lots,” etc., and a statement, in conclusion, signed by both, that the notes on Slaymaker &'McGilbert, and the land in the Ohio Company, except that sold to Johnson, and the four lots in McKeesport, belonged, 17-38 parts to Aaron’s heirs, and 21-38 to Moses’ heirs; and that Payne held a settlement of Aaron’s estate which was not included in this settlement.
    It appears from an old paper on file, found also among General Ripley’s papers in relation to the estate of Moses C., that Kirtland leased these four McKeesport lots, and received the rent till 1813. Lot No. 6 rented for forty dollars in 1809, and seems to have been .sold by Kirtland, as administrator, in 1813.
    Esther Cleveland, and Adams, administrators of Moses, in June, 1812, filed a petition in said Trumbull court praying the execution of a contract made by Payne, “ as attorney in fact for Moses,” to one Heaton, of a part of the “ Salt Spring ” land—made in May, 1806—which the court ordered *to be executed. Among the papers in that case, with the petition on file in the clerk’s office, is an exact copy of the recorded power of attorney.
    George Parsons testifies that he was clerk of said Trumbull court from 1807 till 1838; that Kirtland’s petition is in his own handwriting; that Kirtland is above eighty years old, and his mind nearly all gone now; that John S. Edwards, an attorney of “very good standing,” was the recorder, and filed the petition of' Esther C., and Adams; that since 1803 it has been customary to sell land on credit in the “ Reserve,” and that Payne traded in that way. H. Bartlett and I. Barker testify that this custom was the same in Athens county.
    Payne, by his will, devises his equitable or legal right, to one-half of the remaining Salt Spring land, and the remaining lands in the Ohio Company, and lots in McKeesport.
    Complainants have been in possession, under the tax title, for some sixteen years. The tax sale was in May, 1823, to Skinner, whose title, if any, has been transferred to them; and in 1840, Welch, one of the complainants, purchased from Stingecomb, who transferred to him, and he to the other complainants, all the right of Johnson to the land.
    The land was taxed in the name of Stingecomb from 1808 to 1823, and the adjoining section and fraction No. 13, taxed in the name of Moses C. during that time, and till 1831, when it was soldfor taxes. There was no actual possession till 1823—the land being wild.
    In 1839, Dr. E. G. Carpenter called on Dr. Harris at Canterbury, Connecticut, for Welch, to get him, and the heirs, his wife and sister-in-law, to release their right, for a nominal sum. This was in presence of his wife—stating that the land had been sold by Payne, Cleveland, etc., as stated above. The doctor replied that he knew Payne had sold some of the Ohio land, but would be unable to tell which land, without referring to his tax receipts—which receipts were then brought forward by Mrs. C., and examined. They found in the bundle, which was large, receipts for the section and fraction thirteen, from a very early date to within a few years of *that time, but no receipts for this land. The doctor then said 'his attorney in Cleveland, Ohio, had some papers in his hands, and might have receipts for this land, and that he would make inquiry, and if he became satisfied they had not paid the taxes, they would release, and make no charge.
    The probate records of Canturbury show that Esther and Adams, who are both dead, settled with Kirtland, and with Payne.
    John Welch and Simeon Nash, for complainant:
    Whether the copy of the power of attorney from the records of Trumbull county or of Athens county be competent evidence to prove its execution, is immaterial, inasmuch as we prove facts which authorize the court to presume that such an instrument was executed. All the circumstances go to establish the fact, time, long-continued acquiescence, possession, etc. Under these circumstances the court will presume the legal execution of a legal power of attorney from Moses to Payne Cleveland. 8 Ohio, 83, 135, 518; 3 Ohio, 107 ; 1 P. C. Bro. 165; 7 Johns. 5; Greenl. Ev. 24, 25, 50-54;. 13 Johns. 513; 10 Johns. 475; 9 Ohio, 177; 1 Greenl. 21; 7 Wend. 62; 2 Phil. Ev. 311, 360; 12 Johns. 76; 6 Har. & Johns. 336, 353, 361; 1 Stark. Ev. 69, 330 ; 7 Wheat. 110; 10 Ohio, 513, 524.
    If the execution of the instrument be established, there is nothing in the technical objection that the contract of sale was in the name of the attorney and not in the name of his principal. A court of equity will reform contracts of this kind, and make them conform to the intentions of the parties. A defective execution of a power will always be aided in a court of equity, provided there is a power, and an attempt to execute it. Sug. on Pow. 96-100; Jer. Eq. 372; 1 Story’s Eq. 181-184; 3 Ohio, 529; Sug. on Vend; 716 ; Poth. on Obl. 82, 447, 448; Story on Cont. 201; 9 Cranch, 153.
    ^The sale in this case was well made, for though formerly it was held that the power to sell was a power to sell for cash only, the rule is now changed, and under a general power, the agent may sell according to the custom of the country. But in this case, the most comprehensive terms are used in conlerring the power upon the agent. 3 B. & A. 616; 12 Johns. 300; 5 Johns. 43 ; Com. on Con. 542; 13 Johns. 367 ; 6 Johns. 69 ; 1 Liv. Ag. 96, 104, 105; 3 Johns. 319 ; Pal. Ag. 159, 173; 2 H. Blk. 618 ; 7 Johns. Ch. 35; 22 Pick. 92 ; 2 H. Blk. 92; 1 Ohio, 234.
    But were the law otherwise, the court will not, after so long acquiescence on the part of those interested, disturb the sale. It will rather presume a confirmation, or an original parol authority to sell in this manner. And the circumstances need not be so strong to authorize a presumption of confirmation, as a presumption of original power. See the authorities cited above, and also Paley’s Agen. 112, 171, 173, 323, 324, 331; 5 Johns. 47; 3 Dow. 16; 1 Chit. Eq. Dig. 649, 655; 17 Ves. 97; 1 Ball. & B. 489; 4 Bibb, 530; 8 Ohio, 540.
    Charles 0. Converse, for defendants:
    At the time of recording the pretended power of attorney, there was no law of Ohio authorizing the recording of such instruments. Consequently, the copy of the record is no evidence of the execution of the original; and till that be produced, or a copy procured according to the mode in which all instruments not required to be recorded are obtained, there is no legal evidence that any power of attorney ever existed from Moses to Payne Cleveland. 2 Ohio, 55; 3 Ohio, 368; 23 Pick. 80; 8 Peters, 30; 1 Har. & Johns. 527; 1 Tenn. 111; 2 Wall. 75; 1 Davis, 522; 1 Call, 117; 7 J. J. Marsh. 202 ; 2 Porter, 24.
    The circumstances do not authorize the court to presume *the execution of a power. No knowledge of the acts of Payne Cleveland is brought home to Moses, nor to his heirs, and the acquiesence of others can not affect their rights. Neither the admissions, nor the acts of administrators, can affect the titles of heirs to real estate. 1 Munf. 437; 6 Johns. Ch. 373; 4 Har. & Johns. 270; 3 Gill & Johns, 259; 2 Yerg. 10; 5 Hill, 135; Phil. on Ev. by Cow. & Hill, 317, 318, 366.
    The complainants, and those under whom they claim, have never been in possession under the purchase from Payne Cleveland, but under the tax title. Hence they make no case for presumption. Where there is no possession, the presumption fails. Gilbert on Ev. 103, 104; Bull. N. P. 555 ; 3 Johns. 292; Gilb. 19 ; Peake, 72, 73 ; Fleta. 426; 1 Roll. 132 ; 2 Mod. 323; 2 Term, 466; 1 Blk. 532; 4 N. H. 371; 8 Wend. 431; 5 Peters, 319.
    If the existence of the power—both its execution and its contents—as claimed by the complainants, were established by positive testimony, the case shows no sale made by the attorney, in pursuance of the power.
    The power, not being under seal, did not authorize the attorney to bind his principal by deed. It required, by its express terms, a sale in the name of Moses Cleveland, and did not authorize a sale in the name of Payne Cleveland.

      The contract attempted to be set up, is under seal, and in the name of Payne Cleveland alone. It is his contract, both at law and in equity, and can not be made available as against Moses Cleveland or his heirs. 1 Hill’s N. Y. 111.
    But there is another departure from the power under which the attorney presumed to act. He sold the land for certain town lots to be conveyed to himself, and certain horses delivered, and to be delivered, by Johnson. The power authorized no such sale. It did not authorize an exchange or a barter. In the absence of express direction, the agent is only authorized to sell for cash. 5 Johns. 58; 11 Ves. *467, 477; 1 Mod. 214; 3 Hill, 361; Ib, 374; 1 Ohio, 232; 5 Pet. 319; 8 Barr. & Ald. 616; 12 Mod. 514; 1 Campb. 250.
    The description of the land is too defective to convey any title, or to advise the court what lands were intended, and for this reason the contract should be held void. 4 Mass. 205; 3 S. & E. 607.
   Birchard, C. J.

The first question which presents itself in considering this case is the authority of Payne Cleveland to contract in behalf of Moses Cleveland. A certified copy of an instrument is produced from the recorder’s office, in the county of Trumbull, which is, in form, a full and ample power of attorney, authorizing Payne Cleveland to bargain, sell, and convey” the lands in controversy, together with certain other lands lying in Trumbull county. This instrument purports to have been signed by Moses Cleveland, is without a seal or subscribing witness, and was acknowledged under date of May 7, 1804, before Cavin Goddard, a justice of the peace and notary public, at Windham county, in the State of Connecticut. It was recorded December 11, 1805. It is supposed that no law of this state required the recording of a power of attorney to convey lands prior to 1818, and that this certified copy can not be received as clothed with any official sanction belonging to duly recorded instruments, properly executed, and by law required to be placed on record. We have already, at this term, decided, and it had before been repeatedly held, that an imperfectly executed instrument, or one not required to be recorded, derived no efficacy from being placed on record.

Without being referred to a statute authorizing the record of this instrument, and in the absence of authority showing that a power executed as this was, would be valid, even by the laws of Connecticut (although it is believed that without a seal it would be well executed under the laws of Connecticut for the conveyance of lands within the state), we must reject the certified copy; as evidence to. prove the existence *and contents of the original. Can it be received as a copy, or as an item of evidence to show the contents of the original, in connection with the other proof of facts and circumstances connected with this case? We think it may be so received. It is found in the records of a public office, made over forty years since. Those living at its date, and who could have testified concerning the original, have departed from the scene of action. It was acted upon more than forty years ago, and (or many years after its date, and treated as a genuine instrument by those who were interested in knowing whether it was a valid power. Whether it was genuine, contracts and conveyances were made in virtue of it, and the aid of courts invoked and granted to perfect such conveyances. Possession of lands was surrendered, and taken and occupied till time has cured all defects in the conveyances so made. Under this state of (acts it may be presumed, and we are satisfied that the presumption is the truth, that there was an original, of which this is an exact copy. As to the lands in the Salt Spring tract in Trumbull, the execution of the original would be presumed to sustain the long possessions of Heaton. And to establish the genuineness of the lost instrument in one instance, is sufficient to authorize the reception of a copy.

The next inquiry is, what rights were acquired by the acts of Payne Cleveland done under this power? In his contract with Johnson he describes himself as “Payne Cleveland, attorney in fact for Moses Cleveland.” In all other respects the article of agreement is the same as if he wore contracting in his own name and on his own behalf. The covenants are his personal covenants—the real estate is his. The lots received in McKeesport, as part of the consideration, appear to have been conveyed to him, and yet, in 1810, we find the administrator, Moses Cleveland, accounting with him, receiving the proceeds of the sale, and renting and controlling the McKeesport property, as the property of Moses Cleveland’s estate. What the real facts were, how the accounts were settled, and what the agreements were originally between *Payne and Moses Cleveland’s administrator, can only be gathered from the memoranda of transactions which took place more than thirty years since. Age has so impaired the only survivor, Judge Kirtland, that when his deposition was sought, his once active mind had become a blank, and he could give no account of anything in which ho was formerly concerned. Still, the slate of the title, the force of the expression “attorney in fact for Moses,’’ the possession and control of the lot in McKeesport, received in exchange, the acts of the administrator in seokingthe authority of the court in Trumbull to complete the contract by a conveyance on behalf of the estate of Moses Cleveland, although of no validity as a judicial proceeding, speak a language that can not be misunderstood, showing that the true intention was to act in the capacity of attorney under the authority of the power above referred to. It matters little wbat was the lorm of the contract, when the intention of tho parties is palpable, and a full consideration has boon paid and received. It would be a reproach to a court of equity could it be said that in such a case mero form must work a denial of justice. Whatever it might be at law, this contract with Johnston was in equity the contract of Moses, not Payne Cleveland, and for the simple reason that both intended that it should be so. That was what they designed, and tho accidental circumstance of affixing a seal to the signature of Payne, will not be allowed in this court to make it otherwise. We look to a result that will be consistent with the ends of justice, and where tho way to maintain it is so manifest, shall not be turned out of it, unless tho well-settled rules of law present insuperable obstacles. No well-settled rule or well-considered adjudication will be contravened by rejecting tho seal and reforming this contract, so as to make it effect the objects of the contracting parties. The omission to sign as the attorney of Moses and affixing a seal were accidental circumstances, which originated in unskillfulnoss, ignorance, or mistake, and ought not to defeat an agreement which all parties for many years treated as obligatory, which on one part was fully executed, *and upon the other was for thirty years without disaffirmance.

• Again, it is said that the power was departed from by receiving a part of the consideration in lands. Numerous authorities have been cited to establish th doctrine that a naked power to sell, authorizes only a sale lor money. The facts of this case do not require at our hands a critical examination into the technical distinctions of the law upon this branch of the case. Without ad-milting or denying the legal proposition, we leave it to be settled in some case that may require the expression of an opinion on the point. The evidence of George Parsons and other's, shows that in some cases it was customary for land agents to receive other considerations than money in payment for land sold, and as already stated, it is shown that long since the consideration of this land went to the benefit of the 'estate. In the view we have taken it may well be assumed, that by parol Payne Cleveland was authorized to contract in this way by his brother, and that the acts of the representative of the estate, both those in Connecticut and Ohio, are in equity a sufficient ratification. It can not be doubted that they had full knowledge of all the circumstances of the sale. Kirtland’s attempt to make a deed, shows that he was aware of the 'fact. The nature of his settlements with Payne, and his dealings with tho Connecticut administrators, prove that they were not ignorant upon the subject. It would be reasoning against probabilities to suppose that the mother of these respondents would have acquiesced in the acts of her brother-in-law Payne, to the prejudice of her infant children, if she had not known that her husband, their father, had given to his brother permission to act as we find him acting. .

Another point made in the case is to b.e considered. The premises described in the bill are section No. 19, and fraction No. 19, in township No. 6, of range No. 12, of the Ohio Company’s purchase, Athens county.

In the contract, the description is “a certain tract of land situate, lying, and being in the county of--and State of *Ohio, as laid out in township 6, range 12, No. 19, containing 640 acres, and all of a practical part of a survey adjoining the same, containing 260 acres.”

It is urged that this description is so uncertain and vague, that it is void. We do not think this position can be sound. Payne Cleveland was evidently endeavoring to dispose of his brother’s land in the Ohio Company’s purchase. Moses Cleveland had but one section 19, and one fraction 19, which adjoined it in township 6, range 12. • Both these tracts lay in Athens county, and constituted one of the two shares owned by him in the Ohio Company's purchase. It is quite certain that the lands described in the bill are the same that the contract embraces, or that the parties intended to embrace.

The remaining objection necessary to be considered, touches the frame of the bill; for in the view we have taken of the ease, it is wholly unnecessary to consider the tax title of the plaintiffs, or any other question which has been presented by counsel.

The bill, after stating the ease and bringing before the court the proper parties, prays for a decree against all the defendants, compelling them to release to complainants all their claims and rights at law, in the land described, or to execute a conveyance, and also a decree to quiet the title of complainants, and that they majr have such other relief as pertains to equity. ¥e can discover no difficulty in.the way of a proper decree. There is no need of an express prayer to reform the contract of Payne, so as to make it road in the name of Moses Cleveland ; a prayer for its execution, or for such relief as pertains to equity, is sufficient. A conveyance according to the intention of the parties is the great object of the bill, and it would be mere circuity to decree: 1. A proper execution of the power of attorney. 2. A reforming of the contract, and finally, a conveyance. It is bettor to seek, as this bill does, a direct conveyance, and the decree may be so prepared, with a perpetual injunction against further proceedings at law by the respondents, to disturb the complainant’s possession, and a decree for costs.


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    * James H. Baker, for the use of Joseph Baugher, v. Joseph Thompson.
    Under the act of February 24, 1834, allowing a defendant in an action upon a specialty to set up a failure of consideration as a defense, to make the defense available, he must prove a total failure, or a total failure as to distinct parts of the contract.
    This is a writ of error directed to the court of common pleas of Harrison county.
    The original action was debt upon a sealed bill or note. The bill or note is specially declared upon in the first count in the declaration, and this is followed by the common counts. The note upon which the action is founded, was given by the defendant to the plaintiff, on February 14, 1845, for $280.88, payable twelve months after date.
    To this declaration the defendant pleaded :
    1. Non est factum as to the first, and nil debet as to the other counts.
    2. Entire failure of consideration.
    3. Failure of consideration as to part of the note, without averring what part.
    4. That the note was obtained by fraud, covin, and misrepresentation.
    The defendant also gave notice, that on the trial he would give in evidence certain facts which wore set forth in the notice, and that he would insist that the facts so stated, showed an entire failure of the consideration of the note.
    Issue was joined upon the first plea, and replications filed to the special pleas, upon which issues were also joined.
    The case was submitted to a jury in the court of common pleas, and a verdict returned for the defendant, upon which judgment was entered; to reverse which judgment this writ of error is prosecuted.
    *On the trial, the plaintiff excepted to the ruling of the court upon several points, as appears from a bill of exceptions, which is made part of the record, and is as follows:
    “ On the trial of this cause, the plaintiff having offered in evidence the writing obligatory described in his declaration, rested his cause. Thereupon the defendant offered and gave evidence, tending to prove that a contract was made between the plaintiff and defendant, whereby said plaintiff, being a millwright, agreed to repair the mill for the defendant at and for the customary cash rates of charge by measurement of such work as the repairs consisted of; that the repairs were worth, at the customary cash rates of charge by measurement, about $504; that the said plaintiff, immediately after the making of the repairs, and in the absence of the defendant, proceeded to measure said work, and some days afterward procured from the defendant his notes thereon, amounting in all to $850, including the note sued on; that the notes constituting the $850, loss the note sued on, had passed into the hands of other persons, and that the liability of the defendant thereon had become fixed. The plaintiff thereupon offered and gave evidence tending to prove that, after the making of the ropairs, the plaintiff and defendant met to settle, and the plaintiff stated to defendant that the said work by measurement, at customary cash prices, amounted to $1,150; that the defendant expressed the opinion that the bill was too high, and offered $750; the plaintiff again asserted it was not too high, and said he was willing to leave it to millwrights, and defendant said he thought they could settle it themselves, and they settled before they separated late at night. Defendant gave his notes to plaintiff for $850 for the said work of plaintiff, the note sued on in this case being one of said notes. And thereupon the plaintiff asked the court to charge the jury as to the law of this case, as follows:
    1. That the plaintiff is entitled to their verdict for the amount appearing due upon the writing obligatory offered *in evidenee, unless they find that the defendant, at the time of the making of said writing obligatory, was induced by fraudulent conduct on the part of the plaintiff to believe that he was making an instrument different from that which he actually did make, or unless they find that the consideration of said writing obligatory has failed in whole or in part.
    2. That the jury can not find that the consideration of said writing obligatory has entirely failed, without they find that the repairs constituting such consideration were of no value; nor that the consideration of said writing obligatory has failed in part, unless they find that a part of such repairs were of no value, and also find the price fixed by the parties upon such repairs, as they find of no value at the time of the giving of said notes.
    3. That if they find that said writing obligatory was given upon a compromise between said parties, as to the price and value of said repairs, the plaintiff is entitled to their verdict for tho amount appearing due upon said writing obligatory, irrespective of what may have been the real value of such repairs at customary cash prices.
    Upon which said first proposition the court charged the jury that if, when the parties met to ascertain what was due from the defendant to the plaintiff, the plaintiff deceived the defendant, and induced him to believe that the plaintiff was entitled to recover more than he was entitled to receive, the defendant is entitled to an abatement equal to the excess over the amount actually due.
    Upon said second proposition, the court refused to charge the law as stated in said proposition ; but the court did charge the jury that the law is otherwise than is stated in said proposition.
    Upon said third proposition, the court charged the jury that the law was as stated in said proposition, provided the parties met on terms of equality, and the plaintiff did not deceive the defendant by fraudulent representations.
    To which said several opinions of the court in refusing to *cbargo as aforesaid, as well as to the several instructions given by the court to the jury in their charge aforesaid, the plaintiff 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 errors assigned and relie d upon are, that the court of common pleas erred in refusing to instruct the jury as required by the plaintiff, and in the instruction given, and also the general error.
    J. C. Hance and S. W. Bostwick, for plaintiff in error.
    Stanton & Peppard, for defendant.
    The case was submitted without argument.
   Hitchcock, J.

The request first made by plaintiff’s counsel for the instruction of the court to the jury, is based upon the assumption, that in order to avoid a contract for fraud, the fraud must be committed in the execution of the instrument witnessing the contract, and not in false and fraudulent representations previously made, which induced the party to execute it. The court of common pleas did not recognize this as a sound princijilo of law, and refused to charge as requested. Upon this question this court is divided in opinion, or at least have not been able to come to a definite conclusion, and it is therefore left undetermined. Nor are we prepared to say whether or not there was error in the charge actually given by the court in response to this request.

Counsel for plaintiff next requested the court to charge the jury that they could not find the consideration for said writing obligatory had entirely failed, unless they found that the repairs constituting such consideration, were of no *valuo; nor that the consideration had failed in part, unless they should find that a part of such repairs were of no value, and also find the pi'ice fixed upon such repairs as were of no value.

The court refused so to charge the jury, but did charge that such was not the law.

Was this erroneous?

The construction which has been put by this court upon the act of February 24, 1834, allowing a defendant to an action upon a written contract for tho payment of property or money, to plead or give notice of the entire or partial failure of consideration, is this : If' the defendant relies upon entire failure, ho must so make his proof. If he relies upon partial failure, he must, by his proofv show wherein this partial failure consists. It is not enough that he proves that the consideration is less valuable than it was supposed or estimated to be, when the contract was made. If tho law were to be so construed, it would bo of no use to fix any value upon the property or labor, or whatever might bo the consideration of the note, bond, or contract, for this value might be varied by the proofs, or by the verdict of a jury. Besides, if the vendee of an article might prove that the article was of less value than the contract price, the vendor ought to be permitted to prove that it was more valuable. Such was never the intention of the law. To avail himself of this law, a defendant must show that the consideration is entirely valueless, or if the defense is partial failure, then he must prove that part of the consideration which is claimed to have failed, was entirely valueless.

For instance, a note is given, the consideration of which is one thousand barrels of flour, at a stipulated price per barrel. No part of the flour is delivered. Hero would be an entire failure of consideration. If but five hundred barrels is delivered, there is a partial failure of consideration to this extent. But the maker of the note can not rely upon the defense, that there was a partial failure of consideration, and ^sustain the same by proof, that tho flour was of less value than the contract price.

If we are right in this construction, and it is the construction which this court has always given to the statute, it follows that the court of common pleas erred in not instructing upon this point as requested.

For this error the judgment is reversed, and the cause remanded for further proceedings.


author: Avery, J. Birchard, C. J.,

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    Calvin Hooben v. Riverius Bidwell.
    Delivery, under a contract of sale, is not essential to pass tbe title to personal property.
    This is a writ of error, directed to the court of common pleas of Sandusky county.
    The original action was replevin, commenced March 11, 1844, in the common pleas of Sandusky county, and afterward appealed to the Supremo Court.
    Upon the trial of the cause before the Supreme Court, the following facts appeared, to wit, that on August 18, 1843, Seth Barker bought a wagon of Charles Rice, for the sum of seventy-five dollars, payable by the 1st of March following, and on the same day gave his note for the amount to Rico, with the plaintiff, Hooben, as surety; that Barker at the same time executed to plaintiff, a mortgage of the wagon and a yoke of oxen, an ox-yoke and irons; that the property remained in the possession of Barker till a few days before the replevin was commenced, when Barker wont to Lower Sandusky with the projierty, and sold if to one Harman, who, on the same day, sold it to Bidwell, the defendant, in whose possession it remained until replevied. ‘There was no evidence tending to prove that Barker, the mortgagor, actually delivered the property to the plaintiff. On the trial, the court charged the jury that if they were not satisfied from the evidence that there was a delivery of the' property by Barker to the plaintiff, prior to the sale and deliver}* by Barker to Harman, the vendor of the defendant, then no title passed to the plaintiff, and the defendant would be entitled to recover.
    To this charge the plaintiff excepted, and the question raised is as to the correctness of this charge.
    E. Lane and John Wheeler, for plaintiff in error.
    R. T. Buckland, for defendant.
   Avery, J.

In this case no question concerning actual fraud or fraudulent conveyance, is presented for our determination.

On the trial before the jury, the court charged that retaining posséssion by the vendor was prima fade evidence of fraud, but that the possession might be explained. Under this instruction from the court, the jury found that the possession of the mortgagor was bona fide; so that the only question now to be determined, respects the necessity of a delivery of the goods by a mortgagor, in order to constitue a valid mortgage. If the title passed by this mortgage to the plaintiff, Hooben, then the defendant who claims under Barker, must fail in his defense, according to the authority of 5 Ohio, 202, where it is said that no one can transfer a greater right or better title than he himself possesses. Authorities like the following, upon the subject of delivery, are found :

, “Delivery of goods to a carrier, is equivalent to a delivery to the purchaser.”

“ Symbolical delivery will in many casos be sufficient, and equivalent in its legal effect to actual delivery.”

“ Delivery of the key of a warehouse in which goods sold are deposited, transfer’s the property.” So the delivery of the receipt of the storekeeper for the goods.

*In the sale of a ship at sea the delivery must be symbolical. If the vendor take the vendee within sight of ponderous articles and shows them to him, it amounts to a delivery. Delivery of a sample has been sufficient to transfer the property. 2 Kent’s Com. 393-395. That the property passes to the buyer whore the sale is perfected without delivery, see 2 Kent, 392 ; 1 Swift’s Dig. 378, 380, 3 Johns. 170, authorities cited by the plaintiff’s counsel.

The delivery in a case like the present, where the mortgagee if he were to take possession, must, according to the understanding of the parties, immediately restore it, is so purely a matter of form, attended with no real benefit, that there seems to be but little reason for requiring the act. From the cases above noticed, and others of a similar character, it would be implied that, according to the general rule, a delivery is necessary to constitute or to prove a perfect change of property. The civil law required a delivery, and so it has been said did the common law. But we think delivery not necessary by the common law to pass the title to personal property; that a sale without it is complete as between the parties, though it be not so as to affect the interests in certain cases of third persons. Since the case in 5 Ohio, above referred to, the law has been settled in this state as to third persons also. We think, therefore, that delivery is not essential, and that the court erred in requiring proof of it upon the trial of this cause.

The judgment will be reversed.

Birchard, C. J.,

dissenting. I have always been of the opinion, that on a sale of personal property, whether absolute or conditional, a delivery, either actual or symbolical, is necessary to transfer the title, so as to defeat a subsequent bona fide purchaser for valuable consideration without notice.

In Twyne’s case it was held, that if possession did not accompany and follow the deed, the sale was fraudulent per se as against creditors and subsequent purchasers. In this *state the rule of the English and New York and United States courts has been modified. We now follow the recent decisions of those courts, and regard the retaining of (he possession after a sale as only prima facie evidence that it is fraudulent.

But that A. may set down in his office and make to B. a mortgage of personal property, which is not present and not even delivered to B., and thereby vest in him a title which will enable B. to defeat C. a bona fide purchaser, to whom A. may subsequently sell and deliver the same property, is just what I do not believe should be permitted.

I am aware that some writers have said that a sale of personal property without delivery is good and vests the title in the purchaser, and there may be decisions of cases by courts who follow the digests, the same way.

I would neither follow the digests nor such courts, upon a matter which is a departure from sound principles. I bow to the authorities in all cases, but by authorities, I mean the adjudication of respectable courts of last resort, whose decisions are based upon doctrines and principles that would do equal justice between man and man. It should be held that the right of Hooben to tho oxen in controversy, is inferior to the right of Bidwell. That Hooben’s right until delivery, was a mere right in contract, not a right to the property as against third persons. It was like a contract of sale where the goods have been stopped in transitu before delivery, no title vested.

Although a symbolical delivery in one sense may seem a mere farcical thing of little moment, something which might well be dispensed with, and which subserves no good purpose, yet frequently it is not so. Who can say in this case, that if a witness had been called to attest a mere formal delivery, it would not have prevented the imposition practiced upon Bidwell? It might have given notoriety to the sale. The witness called to attest the formal delivery might have given him information of the mortgage.

I look upon the rule that a delivery of some kind is necessary *to perfect a sale of personal property, as a very ancient one. If I could discover no reason why it was ever adopted, or why it should further be adhered to, I should not be willing to obliterate it so long as it produces no mischief. Ancient rules of law are like ancient landmarks, and the chances are ten to one, that in some way, or at some time, they will be of use.


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    Steamboat Albatross v. Jacob L. Wayne.
    A witness can only testify to facts, not to inferences deducidle from facts. A question propounded to a witness in this form: “ What do you know, if anything, of any custom of trade in delivering goods at Memphis by steamboats different from the usage of other ports on the Mississippi river ? ” is in proper form.
    A local custom at Memphis regulating the mode of delivering the goods there, is not binding on shippers at Cincinnati, unless known to merchants and shippers there.
    The Supreme Court will not reverse the judgment of an inferior court, though the judge may have charged incorrectly upon a matter not material to a correct determination of the case.
    This is a writ of error to the Supreme Court of Hamilton county.
    The action was originally brought in the superior court of Cincinnati, and judgment rendered for the then plaintiff. It was then taken to the Supreme Court by writ of error, and the judgment of the superior court affirmed. This writ is prosecuted to reverse the judgment of the Supreme Court, on the ground that that court erred in affirming the judgment of the superior court.
    The action below was assumpsit upon a bill of lading, signed by the proper officer of the steamboat Albatross, for a lot of furniture, to be delivered to J. W. Haynie at Memphis; and which it was averred was never delivered to said *Haynie. It was claimed by the defendant that the goods were delivered at the wharf-boat of A. B. Shaw & Co., at the landing at Memphis, and that by the custom of the trade upon the Mississippi river, a delivery upon their wharf-boat for any consignee doing business, in Memphis, was a good delivery. Much testimony was taken upon . this point, and exceptions were taken to the charge of the court upon the questions it involved. Exceptions wore also taken to the ruling of the court in receiving and excluding testimony. The various points sufficiently appear in the opinion of the court.
    Kino & Anderson, for plaintiff in error.
    Fox & Lincoln, for defendant in error.
    No arguments were furnished to the reporter.
   Birchard, C. J.

In order to determine whether the Supromo Court erred upon the circuit, we must examine the errors assigned upon the record as there presented. The first is a defect in the declaration. In this there is nothing.

The second error relates to the exclusion of that portion of Shaw’s testimony, which is in the following words: 11 That from his previous habit of receiving goods on the wharf-boat for Haynie, and which was ratified by him, and from the fact that he was in the habit of receiving goods for merchants generally, at Memphis, ho considered himself authorized to receive goods directed to Haynie, or almost any merchant at Memphis.”

This was stricken from the deposition and not permitted to bo read to the jury, on the ground that it was argumentative. Is it not objectionable ? "What right had this witness to testify what he thought, or considered, and what were the inferences which he drew from the facts known to himself, and not disclosed?. He had no such right. He was called as a witness to give facts, not legal conclusions, *or his own conclusions, upon a state of facts unknown to the court and jury. He does not state what had been done which he considered a ratification by Haynie of his reception of goods that had been previously consigned to Haynie and delivered to him. Neither the court nor jury could possibly tell from this statement, which was rejected, whether Haynie had done anything which could in law bo regarded a ratification. The utmost that could be inferred from it would be that somcthing had been done by Baynie, which was a ratification, provided the witness was honest and had drawn correct legal inferences. The whole statement was a matter of mere argument and' opinion, upon a point where he could* have stated facts, and was-not entitled to give an opinion. There was no error in affirming-that part of the judgment of the superior court which averted this statement from the jury.

The next assignment of error is founded upon this question t “What do you know, if anything, of any custom of trade in delivering goods at Memphis by steamboats, different from the usages of other ports on the Mississippi river?” This was objected to, and another form of propounding the interrogatory was insisted on, but the court overruled the objection.

It is said that this question was unfair, leading, argumentative,, and faulty in effect, if not in form. That the witness, if ignorant of the customs of all ,the places on the river, would have answered negatively, and so the plaintiff would have gained proof from the mere ignorance of the witness against the existence of the special custom sought to bo established as a valid custom at the port of Memphis. We do not think the question was fairly liable to any such objection. If the witness really knew nothing about the-trade by steamboat, carried on upon the river, and particularly at Memphis, the objection to his testimony should have been placed-upon that ground. Assuming that he did know and was competent to testify concerning the usages or customs of the river, and this question was as far from being leading as anything *could be; nor was there anything unfair in it. If, in fact, a special custom existed at Memphis, by which a delivery to Shaw was a good delivery to Haynie, or to whomsoever goods might be consigned, the witness would not fail to-state it, supposing him to be a person of ordinary intelligence, and acquainted with the river-trade. It would have been so far out of the usual way of trade, that no business man would have forgotten or neglected to state it. And if „he had so forgotten, a cross-examination or a single question would have brought-out the fact, and the extent of his knowledge, or his total want of all information upon the subject.

Another error complained of by the plaintiff is set out in the third exception. The plaintiff below prayed the court to charge the-jury, and the court so charged, among other matters, that the usage set up by the defendant was not valid, and did not make-■out a good delivery unless it was proved that a large majority of merchants at Cincinnati, shipping goods to Memphis, knew of the usage; that a local custom at Memphis regulating the mode of •delivering goods there is not binding on shippers at Cincinnati, -if not known to merchants and shippers abroad; and that a practice of delivering goods at particular places, in a particular way, •though long acquiesced in before any difficulty arose, is not valid •as a custom.

We find no fault with this instruction. But the defendant objected to the charge asked by the'plaintiff, and prayed the court •to charge the jury that a delivery according to the established custom at the port of destination is good in the absence of any special provision to the contrary; that shippers are bound to take notice of the usages at the port of destination, and must be presumed to-contract with reference to such usages; and that the defendant was bound only to show a delivery, according to the known and usual custom at Memphis, and not to show that such •usage at Memphis, was known among a large majority of those ■elsewhere engaged in the Memphis trade, but only that such was the ^general custom of delivery at Memphis. This the court refused to give in the form asked, and we think rightly. Because taken altogether it would have misled the jury. The law is here •/Bo blended with error, that a jury would not have been able from ••the entire paragraph to gather a safe rule. The court could not with any propriety say that a contract made at Cincinnati, was -made in reference to a custom unknown to one of the parties at that place, and unknown to those residing there and engaged in the Memphis trade. It is misapplying legal terms to call a local ^practice, not known to persons generally engaged in the Memphis trade, a usage, or a custom, or a general custom.

A practice which is unknown to those generally engaged in •the trade, and interested in it, can not be sustained as a usage. It can not control the terms of a contract, because those making •the contract can not be presumed to contract in reference to a •thing of which they were ignorant. A custom once established becomes a law as to the particular subject to which it relates. And being of this nature, the legal presumption at once obtains that the contract was made in reference to it, because it is in the nature of a law. But to give it this force, notoriety, uniformity, ¡¡reasonableness, and public acquiescence in it are requisite.

In carefully reviewing the entire charge set forth in the third bill of exceptions, we are satisfied that the jury were not misdirected, and that it shows no error to the plaintiff’s prejudice.

Upon the fourth bill of exceptions, the objection is taken to the judges remark that “ he did not think there was a particle of evidence that ELaynie was absent on that day,” meaning the day the goods were left at the wharf-boat of Shaw & Co., when two witnesses had stated that Haynie was not in business at Memphis after October 1, 1844, when he became clerk of a steamboat. It is probable the court would have corrected this mistake in a matter of fact at the time, had it been called to their attention and the testimony of the witnesses referred to. Whether there was any such testimony *or not, does not appear from the record. But we should not reverse the judgment if it did so appear, be■cause that matter seems to us foreign to the issue. We should regard the error as an error upon an abstract proposition in no way material to the merits of the cause. The second bill of exceptions sets forth part of an agreed statement of facts, showing ■that the goods were landed at the wharf-boat of A. B. Shaw & Co., and that the only question in the case must have been, whether that was such a delivery as discharged the carrier from liability. It was claimed that a custom of the trade made that a good delivery according to a stipulation contained in the bill of lading, and if the court committed no error on the real points in controversy, the plaintiff has no right to complain; no matter how numerous may have been the mistakes in stating principles or facts that had nothing to do with the case then in hand.

All the law that was laid down upon the subject of storage, may be considered as out of the case. There is nothing in the record to -show that it was applicable. Nothing to show that the Albatross left the goods in store ; that they were placed in Shaw’s hands for any such purpose ; or that his wharf-boat was a proper place of storage. If the charge upon this point was at all material, then the bill of exceptions is very defective in not showing how it became so. Judgment affirmed.