author: Oicey, J.

text:
    Kent v. Perkins.
    1. The act of 1868 (65 Ohio L. 155), in relation to making and widening ditches, is a valid enactment, as applied to cases in which damages are not claimed ; and a proceeding for the purpose of widening any such ditch might he instituted hy one petitioner, though the ditch was confined to his own lands.
    2. A report or finding of a jury under that act is invalid, where such report ■ or finding was not unanimous.
    3. Lands in an incorporated village may he assessed hy the trastees of a township in which the village is situated, for the cost of widening a ditch within the township, but outside of the village limits ; and the fact that the village has a hoard of health will make no difference.
    Error to tbe District Court of Portage County.
    On September 4, 1S73, John Perkins filed in the office of the clerk of Franklin township, Portage county, his petition, asking that a certain ditch and drain in that township be cleaned, widened and deepened; in which petition it was stated that the public health and convenience required that such improvement be made, and that cross drains and ditches from the lands of Marvin Kent and Henry A. Kent empty their waters into the first-mentioned ditch and drain, thereby greatly benefiting their lands.
    At the time the petition was filed, the petitioner gave bond to the acceptance of the township clerk, and also gave notice to the persons sought to be affected by the proceeding, as required by statute.
    No damages were claimed by any person.
    After an order had been made by the township trastees, to the effect that it would be conducive to the public health to have the ditch cleaned, and that the work should be done and expense borne equally by Perkins and Marvin Kent, the proceeding was appealed to the probate court, in which court a jury was impaneled and trial had. On such trial (March 13, 1874), it was found that the lands of Marvin Kent and Henry A. ■Kent were wholly within the corporate limits of the village of Kent, which village is within said township of Franklin ; that the ditch to be cleaned, is confined to the lands of Perkins ; that no part of the ditch is within the corporate limits of the village, and that the village had a board of health. Thereupon the court charged the jury that the lands of Marvin Kent and Henry A. Kent could not be assessed for any part of the cost of the improvement, for the reason that said lands were situated wholly within the village; and Perkins excepted.
    A verdict was rendered, finding that it would be conducive to the public health, convenience and welfare to have the ditch clcaned'and widened, and that no compensation is due to any person, but the verdict was concurred in by only ten of the twelve jurors. A motion for a new trial was overruled; and thereupon the proceeding, so far as it related to' the Kents,, was dismissed by the court.
    The judgment of the probate court was reversed in the court of common pleas on a petition in error filed by Perkins ; the cause "was remanded to the probate court for further proceedings ; the judgment of the court of common pleas was affirmed in the district court, and a petition in error was filed on leave in this court by Marvin Kent and Henry A. Kent to reverse the judgments of the district court and court of common pleas.

      H. B. Foster, for plaintiffs in error.

      Rockwell Hatfield and If. Sbua/ri, for defendant in error.
   Oicey, J.

The act of May 6, 1868, “ to provide for locating, establishing and constructing ditches, drains and water-courses, and to repeal a certain aet therein named” (65 Ohio L. 155), as amended April 13, 1872 (69 Ohio L. 45), and January 27, 1873 (70 Ohio L. 14), was in force when the proceeding, mentioned in the statement of this case, was pending before the township trustees, and also while it was pending in the probate court. See Rev. Stats. § 4511 et seg.

The act in question, as amended, provided, among other things, that township trustees of any township should have power, whenever the same was demanded by, or would be conducive to the public health, convenience or welfare, to cause to be established, located and constructed, “ any ditch, drain or water-course within such township.” They had the same power to cause any such ditch to bo cleaned. A condition precedent to the exercise of this power was that a petition should be filed with the township clerk, “ by one or more persons owning lands adjacent to the line of any such proposed ditch,” or ditch to he cleaned. An appeal from the order of the trustees to the probate court, “ by any person or persons interested in the location of such ditch,” or in cleaning the same, was provided for. Provision was made for a jury of twelve men in the probate court, to whom the probate judge was required to administer an oath. The oath required the jury to view the premises along the route of such ditch, and faithfully and impartially report in writing to said court: “First. Whether it will be conducive to the public health, convenience or welfare to cause said proposed ditch, drain or water-course to be established or located,” or cleaned. “ Second. The amount of compensation due to each person in case of the location (or cleaning) of the same; and, Third. The amount of labor to be performed by each person interested in the opening and constructing (or repairing) of the same.” And, unless all the jurors concurred, the verdict was invalid. Work v. State, 2 Ohio St. 296.

The act and the amendments thereto have been repealed, and the most serious objection to those enactments has been removed. This opinion will, therefore, be confined to a statement of the conclusions at which we have arrived.

The ditch in question is confined to the lands of J ohn Perkins, and it is said the legislature could not have intended to provide for such a case, as a man has a right to make or clean a drain on his own land. Furthermore, it is said that the petition must be filed by a person owning lands “ adjacent” to the proposed ditch or the ditch to be cleaned, and that Perkins’ lands are not “ adjacent,.”' But this legislation had for its foundation the public health, welfare and,convenience, which may be promoted as well where the drain is confined to one owner as where it extends to the lands of several owners, and by the terms of the act one owner may petition. And the word “ adjacent ” was properly used as including lands through which a ditch passes as well as those lying near to the ditch. But if the word had not been accurately employed, still the intention of the legislature, as manifested in all that it has said on the subject, is what we should endeavor to ascertain, and regard being had to that, the objection is clearly untenable. True, the ditch seems to have been constructed by private enterprise ; but it has long been treated as a public ditch, and the owner of the land to which it is confined consents that it may be so regarded.

Again, it is urged that the act is 'invalid for the reason that it makes no provision for assessing damages to the owners of lands injured by the location of such ditches, and for the further reason that the provisions in respect to the jury and the mode of trial are not in accordance with the organic law, and the plaintiffs in error rely on Smith v. Atlantic, &c. R. Co., 25 Ohio St. 91, and Teeg arden v. Davis, decided at the present term. Bat here all claims for damages were waived. In many cases an act may not be wholly void, but void in part and valid in part. In such case it is incumbent on one asserting its invalidity, to show that, if enforced, it will have an unconstitutional operation as applied to him. That such statute would, if enforced, be unconstitutional in its operation under a different state of facts — as where such damages had not been waived — affords no ground for holding it to be invalid in another case where the damages were waived. This is in accordance with Bowles v. State, decided at the present term.

Finally, it is said that there was no power to assess lands within Kent, which is a village having a board of health, for any part of the expense of the proposed work. But Kent is wholly within Franklin township. The trustees, by the terms of the statute, had power to cause the construction or cleaning of “ any ditch, drain or water-course within the township,” and to impose on the adjacent lands the cost of the work. The lands of the Kents, though within the village, are adjacent to the ditch, and benefited by it. The health, comfort and convenience of the citizens of a village may largely depend on the proper drainage of lands lying beyond its territorial limits, and there may be no power to compel tbe draining of such lands except through the action of township trustees or county commissioners. Why should not any lands adjacent to such drain, and benefited thereby, be assessed for the cost of such work ? The statute makes no such limitation on the power of township trustees as is claimed by the plaintiff in error, and therefore we hold that this objection is also untenable.

Judgment affirmed.

Boynton, O. J., dissented from the third proposition of the syllabus.


source: Caselaw Access Project

license: Public Domain

text:
    Commissioners v. Springfield.

      W. was treasurer oí C. county from September, 1870, until September, 1872. He was ex-officio treasurer of the city of S. and.of its board of education, and also treasurer of the township of S., in which the city is situated, and of its board of education. As received, he mingled and kept the moneys of these various corporations together. During his term of office there was a deficit. The county commissioners having, at W.’s settlement in September, 1872, found money in the treasury precisely sufficient to satisfy the amount due from W., as such treasurer, to the county, directed the same to be placed to the credit of the county and appropn ated to county purposes. The money was appropriated as directed. Held, that the moneys, so mingled together belonged to the several cox porations pro rata, and the county commissioners could not appropriate the whole to the exclusive use of the county; and that, consequently, the county is liable in equity to account to the other corporations for their proportionate share of the fund so appropriated.-
    Error to the Court of Common Pleas of Clark County. Reserved in the District Court.
    On December 31, 1874, the city of Springfield commenced an action in the court of common pleas of Clark county against the board of county commissioners of Clark county, and others. Issues wore joined, and the cause was heard and judgments were rendered against the board of county commissioners, and in favor of the city of Springfield, the board of education of the city, the trustees of Springfield township, and the board of education of the township. The board of county commissioners filed, a petition in error in the district court, and that court reserved the cause .for decision by this court.
    The facts, so far as it is necessary to state them, are as follows : The city of Springfield, since May 3, 1852, has been a city of the second class, having a population of less than fifty thousand inhabitants. It is the county seat of Clark county, and is within Springfield township. Theodore A. Wick was treasurer of Clark county from the first Monday of September, 1870, until the first Monday of September, 1872. By virtue of his office, according to. the holding of the court below, he was required to collect and disburse the taxes of the city, the city school district, Springfield township, and the board of education of the township, and he was also required to receive and disburse, for the use of the city and the city school districtK any money belonging to them from other sources than taxation.
    Wick, as treasurer, received for each of the corporations named, large sums of money. The moneys so received were not in any way separated, but were mingled together in a common mass. There should have been, at the expiration of Wick’s term of office, $152,861.22, in his hands; but while the money was so mingled, Wick, at different times during his term of office, embezzled and appropriated to his own use $91,001.01, leaving in the treasury only $61,860.26, which was the exact amount then due to the county. If the sum so remaining in the treasury had been distributed to the several corporations in proportion to the interest of each of them therein, the distribution would have been as follows: city of Springfield, $24,792.77; .board of education of the city, $7,906.49; township of Springfield, $1,224.47; board of education of the township, $2,902.77; Clark county, $25,033.76, making, as aforesaid, $61,860.26. But settlement was made by the county commissioners with Wick as treasurer, and finding in the treasury the amount due to the county, $61,860.26, and no more, the commissioners directed that the whole sum be delivered by Wick to his successor, Richard Montjoy, as the money of Clark county. This was done, and, before this suit was brought the money was disbursed by Montjoy and his successor, under direction of the commissioners, in satisfaction of claims clue to clivers persons from the county; but the city and the city board of education demanded their pro rata share of said sum before any part of it had been disbursed.
    "Whether the commissioners actually knew of the deficit before the settlement was concluded, may not be clear from the testimony; but it is certain that they were informed of it before they left the room in which the settlement was made, and before any portion of the money so paid over had been disbursed.
    On September 10, 1872, Wick assigned to John H. Thomas certain property in trust for the benefit of the several corporations named. The sum realized from the property amounted to $26,000, but the sum-of $1,932.02, was distributed to the corporations other than Clark county in excess of their yro rata share of such trust fund. The court of common pleas, at the January term, 1878, in rendering judgment, gave the county credit for the amount that would be due to it on a fro rata distribution of said fund, and found the county to be then indebted to the other corporations, as follows: city of Springfield, $31,718.30; board of education of the city, $9,997.15 ; trustees of Springfield township, $1,070.66; board of education of the township, $3,714.01, making the sum of $46,500.12; and judgments were rendered accordingly, to reverse which judgments this proceeding in error is prosecuted.
    Iieifer, White é¡ HaVoitts and Sjpence <& Arthur, for plaintiff in error.
    Harrison, Olds <& Marsh, for defendants in error.
   Oicey, J.

Wick, by virtue of his office of treasurer of Clark county, was treasurer of the city of Springfield, the board of education of the city, the township of Springfield, and the board of education of the township; and it was the duty of the commissioners, at the September settlement in 1872, to ascertain, not merely whether he had in his custody as such treasurer the amount of money belonging to the county, but also whether he bad the amount due to each of the other corporations named, and to see that the whole was paid over to Ms successor. This is shown by numerous statutory provisions, which admit of no other reasonable construction. It is, therefore, unnecessary to determine whether the commissioners had or had not actual notice of the deficit before the settlement with Wick was concluded. The law having charged them with the duty of ascertaining whether he had in his custody, as treasurer, the funds due from him to these various corporations, the case is to be regarded as though such knowledge had been fully proved.

The question, then, is whether the county of Clark is liable to the city of Springfield and its board of education, and the township of Springfield and its board of education, for pro rata shares of the moneys in the treasury, $01,860.26, appropriated, under direction of the commissioners, to the use of the county. That the moneys of these various corporations were mingled, and that the embezzlement was from the mass, cannot be denied; and it must be further admitted, that the amount appropriated to the use of the county, under direction of the commissioners, was the exact sum due to the county from Wick ; but neither mingling the money, the embezzle'ment, nor the appropriation by the county, had the effect of destroying the interest -of the city, township, and school boards in the sum which was in the treasury at the time of the settlement. Equity will make it available to them by fastening a liability on the county. This would clearly be the rule as applied to individuals, under such circumstances, and there is no reason for saying the same rule does not apply to public corporations. Van Alen v. American National Bank,, 52 N. Y. 1; Matter of Van Duzer's Estate, 41 How. Pr. 410 ; Farmers, &c. Bank v. King, 57 Pa. St. 202 ; Pennell v. Defell, 4 De G., M. & G. 872 ; Cook v. Tullis, 18 Wall. 332 ; Bayne v. United States, 93 U. S. 442; United States v. State Bank, 96 U. S. 30.

A number of other objections urged against the judgments in the court below, have been argued at length. We have carefully considered them, but do not think that any of them are tenable.

Judgments affirmed.


author: Okey, J.

text:
    Baltimore & O. R. Co. v. Campbell.
    ' 1 Where it is necessary for a traveler, in going from one place to another, to pass-over the connecting lines of several railroad companies, it is competent for either company to contract with him for the transportation of himself and baggage the whole distance, or that its liability shall be confined to loss or damage occurring on its own road ; but the collection, by such contracting carrier, of fare in advance for the entire journey, without agreement as to risks, renders it liable, on receipt of such traveler’s baggage, 'to transport it safely to the end of the route, and there deliver it, on demand, to such owner.
    2. Words on a railroad ticket or baggage chock limiting the liability of the carrier to a specific amount for loss of baggage, are not binding on a passenger, unless, with knowledge of such limitation, he agrees to it.
    3. A passenger by railroad train, as soon as practicable after its arrival at the place of destination, presented to the agent in charge of the baggage-room a check for his baggage and’demanded the same, which baggage he had delivered to the carrier when he took passage on tne train. The agent being unable to find the baggage, took the number of the check, and requested the passenger to call again. On the same evening the passenger returned to the depot, but the agent informed him that he had made further search and the baggage could not be found : Held, that such acts and declarations of the agent were competent evidence for the passenger in his action against the carrier for loss of such baggage.
    Error to tbe District Court of Guernsey County.
    Martha Campbell and James "W. Campbell, her husband, ■ brought suit in the court of common pleas of Guernsey county, against the Baltimore and Ohio Railroad Company, to recover the value of baggage belonging to Mrs. Campbell, which is said to have been lost by the company, a common carrier.
    A verdict was found in favor of the plaintiffs for $973.55 ; judgment was rendered thereon at the November term, 1876 ; the judgment was affirmed in the district court, and on application of the company, leave was granted to file in this court a petition in error.
    In the petition of the plaintiffs below, it is alleged, that on December 8, 1874, at the city of New York, the company, in consideration of $17.50, then and there paid to it by Mrs. Campbell, agreed with her to safely carry herself and child and their baggage from the city of Now York to Columbus, Ohio, by way of the New York and Philadelphia Railroad, and the Philadelphia, Wilmington and Baltimore Railroad, and the roads of the defendant; that she delivered her baggage at the city of New York to the defendant, and received from it a check for the carriage of such baggage over said roads to Washington, D. 0., where the company, -by the agreement aforesaid, was to re-check said baggage to Columbus ; that the baggage consisted of her trunk, containing the wearing apparel and ordinary appendages (stated in detail in the petition) incident to herself and child as such travelers; that on arriving at Washington, D. C., she presented the check to the proper agents of the company and demanded the baggage, but they neglected and refused to deliver the same or any part thereof.
    The company, by its answer, admitted the sale of a ticket for the transportation of Mrs. Campbell and her baggage from the city of New York to Columbus, Ohio, for the price and at the time stated in the petition, and that the plaintiffs had demanded the baggage as stated ; but the defendant denied the other allegations in the petitiou, and further answered as follows : “ The defendant further says that in the sale of said ticket for the transportation of said plaintiff and her baggage fi’om the city of New York to Baltimore, Md., it acted as the agent only of the Pennsylvania Railroad Company, and the Philadelphia, Wilmington and Baltimore Railroad Company, owning and operating the linos of railroad between said points, and for her transportation with her baggage from Baltimore, Md., to Columbus, Ohio, for itself, owning and operating the residue of said route; that by the terms and conditions of said ticket, issued to and accepted by said plaintiff, each company representing said route was to be responsible only for the safety of passengers, or the loss of their baggage on its line of road, and not each for the others, and for the loss of baggage not exceeding in value $100, unless by special contract; and the defendant denies that said trunk and its contents were delivered to, or received by it from said company, nor was it lost upon its said line of railroad.”
    In their reply, the plaintiffs say, “ that it is not true that the said defendant, in the sale of said ticket for the transportation of said plaintiff and her baggage, from the city of New York to Baltimore, lid., acted as the agent of the Pennsylvania Railroad Company and the Philadelphia, "Wilmington and Baltimore Railroad Company ; nor is it true that by the terms and condition of said ticket issued to and accepted by said plaintiff, each company representing said route was • to be responsible offiy for the safety of passengers or the loss of their baggage on its line of road ; nor is it true that said plaintiff received and accepted a ticket for her transportation, with her baggage, by the terms and conditions of which each company named in said answer, as representing said route, was to be responsible only for the safety of passengers or the loss of their baggage on its line of road and not each for the others, and for the loss of baggage not exceeding in value $100, unless by special con-, tract.”
    The record does not purport to contain all the evidence or all of the charge to the jury. The errors relied on are, that the court erred in admitting certain evidence, in refusing to charge the jury as requested by the company, and in the charge given.
    Evidence was offered to show the following facts: Mrs. Campbell, with her infant child, and father, mother and aunt, all residents of Cambridge, Ohio, were at the home of W. J. Hendricks, in Bond street, Brooklyn, N. Y., during parts of November and December, 1874, where Mrs. Campbell was receiving medical treatment. Desiring to return home by way of Washington, D. C., Mr. White, father of Mrs. Campbell, on December 8, 1874, on behalf of himself and his wife, daughter and her aunt, gave to Mr. Hendricks $70, and directed him to go to the office of the defendant, in New York city, and buy four ti ckets for the persons nam ed, from New York city to Columbus, Ohio, by way of Washington, D. C. Mr. Hendricks, on the same day, went to the office of the company, on Broadway, and procured the railroad tickets, "and also ferry tickets, in envelopes, each of the four envelopes containing a-railroad and ferry ticket, and having printed thereon the words: “ Office Baltimore & Ohio R. R. Tickets to all points west, south and south-west, 229 Broadway, corner Barclay street, New York. Pullman palace cars on all trains. Baggage checked through from hotels and residences. J. T. Bullock, Ticket Agent.” At the time Mr. Hendricks purchased the tickets, ho obtained of the agent of the defendant a time card, containing, among others, the following words: “Save time by taking the Balto. & Ohio. Quickest route west . ... Great through route . . . All trains run via Washington. Call at company’s offices, 315 and 261 Broadway.” On the same day, at his residence, he delivered the tickets and time card to the persons for whom they were intended. Mr. White and Mrs. Campbell then went to .Dodds’ Express Office' in Brooklyn, to have the baggage of the party, consisting of their trunks, checked. The agents in charge of the office required them to produce their railroad tickets and to pay $1.50. On that evening a driver from the express company went to Mr. Hendricks’ house and obtained the baggage and furnished the owners metal checks. The check of Mrs. Campbell had on one side of it the words “ New York, 357, to Washington ; ” on the other side: “ Dodds’ Express, N. Y. & Phila. R. R. — ■ P. W. & B. — B. & 0. — Liability limited to $100.” The evidence tended to show that in receiving the baggage the express company acted as agent of the defendant.
    On the morning of December 9, Mrs. Campbell and those in company with her went to the railroad depot in Jersey City, where some person pointed out to them their coach in the railroad train of the defendant, which coach they entered, and they rode without change of cars to Washington, D. C., where they arrived the same evening. On the following morning, Mr. White went to the proper office of the defendant, saw its agent in charge of the baggage-room, and demanded for the party their baggage. Two of the trunks were found and rechecked, but Mrs. Campbell’s baggage could not he found, and it has never been delivered. Neither she nor those in company with her have seen or heard of it since it was delivered to the driver of the express company on the night of December 8, 1871. In the conversation between Mr. White and the agent, above referred to, the agent said Mrs. Campbell’s baggage might have gone over to the other depot of the company. He took a memorandum of her check and requested Mr. White to call again. He did call in the evening of the same day, but the agent informed him the baggage could not be found. The company objected to the admission of these acts and declarations of the agent as evidence, but the court overruled the objection, and the company excepted.
    On the trial the evidence of one of the defendant’s agents was offered, tending to show that the railroad tickets so sold by the defendant were issued by the Pennsylvania Railroad Company in the following form :
    “ Pennsylvania Rail Road Co.
    “ This ticket entitles the bearer “ To one first-class passage to '“ Columbus.
    . “ This ticket is not good unless each check is officially stamped and dated.
    “ In selling this ticket for passage over other roads, the Pennsylvania Rail Road Company acts only as agent for them, and assumes no responsibility beyond its own line.
    “The Pennsylvania Rail Road Co. will not assume any risk on baggage, except for wearing apparel, and limit their responsibility to $100 in value. All baggage exceeding that amount in value will be at the risk of the owner, unless taken by special contract.
    “ The checks belonging to this ticket will not be received for passage if detached.
    “ D. W. Boyd, Jr.
    “ Agent?

    Evidence was also offered tending to prove that attached to each ticket were four coupons, one issued for a passage to Philadelphia, one issued on behalf of the Philadelphia, Wilmington and Baltimore Railroad, for a passage from Philadelphia to Baltimore, one issued on behalf of the Baltimore and Ohio Railroad, for a passage from Baltimore to Bellaire, and the other issued on behalf of the same company for a passage from Bellaire to Columbus, and that the proceeds of the tickets so issued by the Pennsylvania Railroad Company and sold by the defendant were divided among the railroad companies over which the passengers were transported, but not in proportion .to mileage, the company owning the road between Jersey City and Philadelphia insisting ou what is known as short line proportions.
    Evidciice was also given tending to show that neither Mrs. Campbell, nór any of the other persons with her, had noticed the words on the metal check as to a limitation of liability for loss of baggage ; nor had either of them noticed any limitation with respect to baggage on the railroad tickets which they purchased of the defendant; nor had the attention of either of them been called to any such limitation on either the checks or railroad tickets.
    After the close of the evidence and arguments of counsel, the defendant requested the court to charge the jury as follows:—
    First. “ If the jury shall find from the testimony that the ticket sold by the defendant to Mrs. Campbell, at its office in New Yorlc city in December, 1S74, for her transportation from said city or Jersey City to Columbus, Ohio, was issued by the Pennsylvania Railroad Company, that the trunk was checked at Brooklyn, witli a check issued by said Pennsylvania Railroad Company, and that the defendant acted as the agent only of the said Pennsylvania Railroad Company in the sale of said ticket, and if the jury shall further find that the defendant had no interest in'the price of said ticket other than the proportion it would be entitled to for the distance traveled upon the line of road of defendant from Baltimore westwardly, and if the jury shall further find that the trunk was not received into custody of the defendant orits agents at Baltimore, or some other place on its line of road, the plaintiffs in such case arc not entitled to recover.”

      'Which charge the court refused to give, except as qualified in the charge of the court as hereinafter set forth.
    And the defendant thereupon also further asked the court to charge the jury as follows: Second. “ If the jury shall find from the testimony that the ticket sold by the defendant to Mrs. Campbell, the plaintiff, about the 8th or 9th day of December, 1814, at the office of the defendant in the city of New York, for her transportation from said city or Jersey City to Columbus, Ohio, was issued by the defendant or was the ticket of the defendant, and not that of the Pennsylvania Railroad Company, and the plaintiff had the time or opportunity before having her baggage checked to examine said ticket, and there was no'fraud or deceit practiced by the company or its agent in the sale of the ticket, that would have misled her, she is presumed to know the contents of said ticket; and if the jury shall further find that the ticket then sold to and received by her was of the form and contained the stipulations of the ticket, [hereinbefore set forth] attached to the deposition of Mr. McCarthy, they, the plaintiffs, would be bound by such stipulations, and would not in such case be entitled to recover more than §100, including interest thereon from the time of the loss of said trunk.”
    Which charge the court refused to give ; and thereupon the court did charge the jury in these regards as follows :
    “ A railroad company may become liable as a common carrier by contract for transportation of passengers and baggage over other railroads forming with their own a continuous lino; and where they do so contract, their liability is the same for losses occasioned by negligence or fault while the baggage is upon such other road as while it is upon their own road.
    “The first question in this case is, what was the contract between the parties? Did the defendant agree to carry the plaintiff and her baggage all the way from New York, or only from Baltimore ? and in selling the ticket to carry plaintiff and her baggage from New York to Baltimore did it act only as the agent of the other roads named ?
    “ If the contract of the defendant was only to carry plaintiff and her baggage from Baltimore, then it would not be liable unless the baggage came into the possession or custody of some agent or employee of the defendant.
    l£ If the jury find from the testimony, that the ticket sold by the defendant to Mrs. Campbell, at its office in New York city, in December, 1874, for her transportation from said city, or J ersey City, to Columbus, Ohio, was issued by the Pennsylvania Railroad Company, that the trunk was checked at Brooklyn, with a check issued by said Pennsylvania Railroad Company, and that the defendant acted as the agent only of the said Pennsylvania Railroad Company in the sale of said ticket, and the defendant, with a knowledge thereof, acquiesced therein, and if the jury shall further find that the defendant has no interest in the price of said ticket other than the proportion it would be entitled to for the distance traveled upon the line of road of defendant from Baltimore westwardly, and if the jury shall further find that the trunk was not received into the' custody of the defendant or its agents at Baltimore or some other place on its line of road, the plaintiffs in such case are not entitled to recover.
    “ On the other hand, if you find the contract was an undertaking on the part of the defendant to carry plaintiff, Martha, and her baggage, frcpi New York to 'Washington, and thence westwardly over its road to Columbus, Ohio, and the baggage was delivered to an agent of the defendant, then the defendant would be liable.
    “ If the baggage was delivered to Dodds’ Express Company and Dodds’ Express Company was the agent of the defendant for receiving baggage, then the receipt of the baggage by said company would be a delivery to the defendant. And if Dodds’ Express Company was in fact the agent of the defendant in the receipt of plaintiff’s baggage, then it would make no difference as to the defendant’s liability, whether it over went from the possesssion of Dodds’ Express or not.”
    Second. And the court further charged the jury as follows :
    “ In the absence of special contract limiting the liability of defendant, if you find it is liable for the loss of plaintiff’s baggage, you will assess as her damages the value of her trunk and such of its contents as you find was the wearing apparel of herself or her child, or their necessary and usual appendages or accompaniments of herself and child as a traveler, with interest from the time demanded to the first day of the present term, November 14th, 1876. .
    “ A carrier may restrict or limit the amount of its liability by a special contract accepted on the part of the owner of the baggage; and this may be done by notices brought home to the owner of the baggage before or at. the delivery to .the carrier-;' if assented to by the owner.
    “ The onus of proving any qualification of the liability of the defendant as a carrier, rests upon it. The notice, to be of any force, must amount to actual notice. At all events, to exonerate the defendant as a carrier from its general liability, it must be shown, at least, by the evidence, that the plaintiff, or those acting for her, assented to the demands of the notice, or, with a knowledge of it, acquiesced in it, by making no remonstrance.
    “ And in determining whether or not the conditions -or limitations were brought to the notice of plaintiff and those acting for her, you will look to all the evidence in this case; as to the manner of the delivery of the ticket and the check; whether anything Avas said or done calling the attention to them or not; Avhetlier they were or were not read at the time of or before their receipt.”

      H. Simmer, for plaintiff in error:
    I. The admission as evidence for plaintiffs on the trial, of statements of agents and employees of the railroad company, Avas erroneous. Statements thus admitted were not part of the res gestae. Declarations, admissions and statements of an agent, to bind the principal, must bo made at the time of the principal transaction. 1 Greenleaf, § 113 ; Pratt v. O. & L. O. R. R., 102 Mass. 557; Sweetland v. Telegraph Co., 27 Iowa, 433 ; Penn R. R. Co. v. Books, 57 Pa. 339 ; Anderson v. Railroad Co., 54 N. Y. 334. 2. As shown by the form of the ticket the railroad company limited its liability, as to value of baggage, by special contract. The right of a common carrier of passengers, thus to limit its liability, appears to be well established. Orange Co. Bank v. Brown, 9 Wend. 116 ; Batson v. Donavin, 4 Barn. & Aid. 21; Brooks v. Pickwick, 4 Bing. 218 ; Gt. North Ry. Co. v. Shepherd, 14 Eng. L. & Eq. 367; Pardee v. Drew, 25 Wend. 459; Railroad Co. v. Lockwood, 17 Wall. 357; Kirkland v. Dinsmore, 62 N. Y. 475 ; Steers v. Liv. N. Y. & Phila. S. Co., 57 N. Y. 1; C. H. & D. R. Co. v. Pontius, 19 Ohio St. 221; Grace v. Adams, 100 Mass. 505 ; Martin v. Great Indiana Railroad, 3 Ex. R. 9.
    Mrs. Campbell is presumed to know what the ticket contained, and it was then her duty to disclose the value of the contents of the trunk. It was a fraud upon the carrier to fail to do so. Belger v. Dinsmore, 51 N. Y. 166 ; Steers v. L. N. Y. & Phila. S. Co. 57 N. Y. 1 ; Kirkland v. Dinsmore, supra ; Grace v. Adams, supra; Squire v. N. Y. Cent. Ry., 98 Mass. 235 ; Mulligan v. Ill. Cent. Ry. Co., 36 Iowa, 181; McMillan v. M. S. & N. I. R. R., 16 Mich. 80; 100 Mass. 505, supra. The rule is well established that companies forming such continuous or “ through ” lines, or routes, in the absence of such special agreement, are responsible only for acts done or omissions upon, their respective roads; that no one is liable for the acts of any other forming such line, and that the sale of a “ through ” ticket, or giving a “ through-” check for baggage by one company, does not impart an agreement by that one, to be held for more than its own acts or omissions. Kissler v. N. Y. C. & H. R. R. Co., 61 N. Y. 538. This case from 61 N. Y. is substantially that of the one at bar, the B. & O. R. R. Co. selling the “ through ” ticket in each case, and asimilar check is given in each case. Milner v. N. Y. & N. H. R. R. Co., 53 N. Y. 363; Knight v. P. S. & P. R. Co., 56 Maine, 234; Sprague v. Smith, 29 Vt. 421-426; Hood v. Railroad Co., 22 Conn. 1; Shipman v. Railroad Co., 9 Cush. 24; Ellsworth v. Tartt, 26 Ala. 733 ; Brooke v. Railroad Co., 15 Mich. 332.

      F. W. Wood and White <& Campbell, for defendants in error :
    To be a part of tbe res gestes — tbe subject matter — the declarations must relate to the identical contract in controversy, but need not be made at tbe time tbe contract is entered into. Dorne v. S. M. Company, 11 Cush. 205. And tbe declarations of a baggage-master, in answer to inquiries for lost baggage, are admissible, as part of tbe res gestes. Morse v. Conn. R. R. Co., 6 Gray, 450 ; Wharton on Agency, § 159 ; Curtis v. A. G. & N. M. R. R., 49 Barb. 148.
    On tbe question of limited liability see Gaines v. Union Trans. Co., 28 Ohio St. 418; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362 ; C. H. & D. R. R. v. Pontius, 19 Ohio St. 221; 2 Redfield on R. R., 42, 87, 97, §§ 3, 8, 9, and p. 100, § 12; Quimby v. Vanderbilt, 17 N. Y. 306 ; Hart v. R. & S. R. R., 8 N. Y. 37, which is approved in tbe case last cited ; Check v. L. M. R. R., 2 Disney, 237; Railroad Co. v. Manf. Co., 16 Wall. 329; Levering v. Union Trans. Co., 42 Mo. 94; Adams v. Express Company, 42 Ill. 93 ; Blossom v. Dodd, 43 N. Y. 264; Rawson v. Pa. R. R., 48 N. Y. 212; Henderson v. Stevenson, H. of L. L. R., 2 Scotch App. 470 ; S. C., Moak’s E. R. 141; Parker v. S. E. R. R., 1 Com. Pleas. Div. 618; S. C., 18 Eng. Rep. 238; 2 Parsons on Con. 237, et seq.; Great Western R. R. Co. v. Blake, 7 Hurls. & Nor. 987; Sprague v. Quiste, 29 Vt. 421; Woodruff v. Stewart, 16 N. Y. Sup. Court, 322; Weed v. S. & S., 19 Wend. 534; Burnell v. N. Y. C. R. R., 45 N. Y. 184; Cary v. C. & T. R. R.. 29 Barb. 35 ; Maden v. Sherrard, 18 Albany Law Jour. 75 ; Colly v. C. P. R. R., 4 Sawyer, 115 ; Tyler v. West. Union Tel. Co., 60 Ill. 421, 431; Field v. Chicago & R. I. R. R. Co., 71 Ill. 458 ; Baldwin v. Steamship Co., 74 N. Y. 125 ; Railroad Co. v. Troaleff, (U. S.) 4 Cin. Law. Bul. 890 ; 74 N. Y. 116 ; 73 N. Y. 329.
   Okey, J.

Several grounds are relied on for tbe reversal of tbe judgment rendered in the court below, and the questions presented have been discussed at great length. Those deemed of sufficient importance to call for a report will be briefly considered.

1. Where it is necessary for a traveler, in going from one place to another, to pass over the connecting lines of several railroad companies, it is competent for either company to contract with him for the transportation of himself and his baggage the whole distance, whether such lines are confined to one state or extend through several states. Connecting carriers, in such case, recognizing such contract, become the agents of the contracting carriel-, and their negligence is its negligence. And the collection, by such contracting carrier, of fare in advance for the entire journey, without an agreement as to risks, renders it liable, on receipt of the traveler’s baggage, to transport it safely to the end of the route, and there deliver it, on demand, to such owner. Schouler on Bailments, 336 ; Thompson on Carriers, 431; Lawson on Carriers, § 235 ; Hutchinson on Carriers, § 145. Of course the carrier selling such ticket may lawfully agree with the passenger that it shall not be liable except for loss or damage occurring on its own road. Ib.

2. A common carrier cannot restrict his ¿ability for loss of baggage by notice, even when such notice is brought to the knowledge of the passenger. Such restriction can only be made by agreement of the parties, and the burden is on the carrier to show such agreement. Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362 ; Wilson v. Hamilton, 4 Ohio St. 722, 740 ; Welsh v. Pittsburgh, &c. R. Co., 10 Ohio St. 65 ; Cleveland, &c. R. Co. v. Curran, 19 Ohio St. 1; Cincinnati, &c. R. Co. v. Pontius, 19 Ohio St. 221; Union Express Co. v. Graham, 26 Ohio St. 595; United S. Ex. Co. v. Backman, 28 Ohio St. 144 ; Gaines v. Union T. & I. Co., 28 Ohio St. 418 ; Pittsburyh, &c. Ry. Co. v. Barrett, ante, 448. A railroad ticket is not such an agreement. 'It is simply a voucher that the person in whose possession it is, has paid his fare. The same principle applies to baggage checks. Lawson on Carriers, §§ 106, 107. An attempt by words on such ticket or check to limit the carrier’s liability for loss of baggage will be wholly unavailing, unless the carrier shows that the passenger, with knowledge of such limitation, agreed that it might be made. Elsewhere the cases on this subject are not in harmony (Burke v. South E. Ry. Co., L. R. 5 C. P. Div. 1; Lawson on Carriers, 455, 460 ; Thompson on Carriers, 432, 437); but our own cases, to which reference has been made, fully support this view of the law, and such is the clear weight of authority.

3. Application for the baggage was made to the agent in charge of the baggage-room as soon as practicable after Mrs. Campbell and her friends reached Washington. What the agent said and did, with respect to the baggage, were clearly competent evidence for the plaintiffs on the trial. Morse v. Conn. River R. Co., 6 Gray, 450 ; Lane v. Boston & A. R. Co., 112 Mass. 455 ; Green v. Boston & L. R. Co., 128 Mass. 221; Dilleber v. Knickerbocker Ins. Co., 76 N. Y. 567, 572; Pierson v. Atlantic Nat. Bank, 77 N. Y. 304; Kirkstall Brew. Co. v. Furness R. Co., L. R. 9 Q. B. 468.

4. The plaintiff in error, as it was required to do, caused parts of the record to be printed, but failed to insert in such printed matter certain letters to the president of the company, written by Mr. White on behalf of plaintiffs, and the president’s replies thereto, which letters and replies were offered in evidence and incorporated in the bill of exceptions ; nor was any order of this court made or applied for exonerating the plaintiff in error from such printing. Under such circumstances, we will assume that the plaintiff in error caused to be printed all .of the record which its counsel deemed material, and hence we have determined the ease from the printed matter.

There is no error in the record to the prejudice of the plaintiff in error.

Judgment affirmed.


author: Okey, 4.

text:
    Elevator Company v. Brown.
    1. Lessees brought suit against their lessor, under a clause in. their lease which entitled them, at the end of their term, to payment for improvements placed by them on the premises. The lessor defended on the ground that by a clause in the lease the lessees were required to renew, if the lessor should, during the term, “ purchase the title in fee simple to said premises,” in which event the lessees should not be entitled to payment for improvements until the expiration of the term in renewal ; and that he had, during the original term, pui-chased such title in fee simple, and given the lessees notice that he required them to renew : Held, that in such action it is not sufficient for the lessor, in proving his title, to show that he had, during the term, made an agreement with the owners of Ihofee for the put chase of the premises, theevidence further showing that he had not, during the term, paid the purchase-money or received a conveyance.
    3. Whether, temporary and partial occupancy of premises by lessees, after the expiration of the term mentioned in the lease, should be regarded as consent to or in effect a renewal, under a clause in the lease by which the lessees agreed to renew in case the lessor purchased the title in foe during the term, is to be determined, not merely from proof of such occupancy, but from the facts in connection with such occupancy.
    Motion for leave to to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    Samuel S. Brown and James M. Schoomaeker, administrators of William H. Brown, brought suit in the superior court of Cincinnati against the Canal Elevator and Warehouse Company, a corporation, to recover $2,799, with interest from September 1, 1879, being the cost of certain improvements made by said William H. Brown and one Murphy while in possession of certain real estate under a lease from said corporation, Murphy having sold his interest in the claim to Brown.
    The cause was heard in special term on petition, answer, reply and testimony. The court, finding diifi.cult questions of law and fact to be involved, reserved the cause for decision in general term. In the general term, judgment was rendered in favor of Brown’s administrators for $3,023. This application for leave to file a petition in error in this court is made on behalf of the corporation.
    •_ There is no dispute about the facts. So far as it is necessary to state them, they are as follows: April 21,1871, the corporation leased to William II. Brown and Samuel B. Murphy, partners, as Brown & Murphy, coal dealers in Cincinnati, the privilege of occupying and using two parcels of real estate, to be used by them in their business, from May 1, 1871, until September 1, 1879. The lessees were to furnish money, not exceeding $2,500, for the erection of coal bins on the premises, and pay certain rents, taxes, &e.
    One of the parcels of real estate was held by the lessor by perpetual leasehold. With respect to the other parcel, it was agreed, in the lease to Brown & Murphy, “that in case the said lessor shall, during said term, purchase the title in fee simple to said premises, the said lessees hereby agree to bind themselves and their legal representatives to renew this lease, at the expiration of said term, . . . for the further term of eight years from said 1st day of September, 1879, upon the same terms, conditions, covenants and agreements as above set forth.” And it was further stipulated, “that at the expiration of the term of this lease, or, in case of renewal, at the expiration of such term of renewal, the said party of the first part shall pay to the said parties of the second part the amount so furnished and paid by them as aforesaid for the said bins and improvements, without interest.”
    On August 30, 1879, the lessor gave notice to the lessees that it had purchased the title in fee simple to the parcel of real estate referred to in the clause of the lease above quoted, and the lessees were requested to renew the lease in accordance with the requirements of such clause.
    The premises referred to in the notice had been owned by five persons as tenants in common. Two of them lived in Kansas, where their acknowledgment of the deed conveying the property to the corporation was taken September 8, 1879, and the deed was entered of record in Hamilton county, Ohio, on September 19, 1879. The consideration for the premises was $6,000, of which amount the sum of $1,000 was paid on delivery of the deed, and a mortgage on the premises was executed by the corporation to the grantors for the remaining $5,000. '

      When the notice above mentioned was given by the lessor, the lessees immediately declined to renew the lease. On September 2, 1879, they vacated the premises, and within two days thereafter returned the keys to the office of the lessor. They left in one of the bins three hundred and seventy-five bushels of coal until September 18,1879, being unable to dispose of and cause it to be removed before that time.

      Stallo, Kitbredge c§ Sohoonmaclter, and A. B. Huston, in support of the motion :
    1. The lessor could insist on a renewal without an actual conveyance to or payment of the purchase-money by him. Lorillard Ins. Co. v. McCulloch, 21 Ohio St. 176 : Gilbert v. Port, 28 Ohio St. 276 ; Sugden on Vend. (8 Am. ed.) 291.
    2. The holding over was a renewal of the lease. Pollock on Con. 414; Taylor’s L. & T. § 22; Delachman v. Berry, 20 Mich. 292; 1 Daily, 419 ; 2 Daily, 213.

      Sage ds Hinkle, contra :

    The lessor did not purchase the fee during the terra. Fry on Spec. Per. §§ 290, 292, 733, 797; 2 Chitty on Con. 1086 ; Job v. Bannister, 26 L. J. Ch. 125 ; s. c., 39 E. L. & Eq. 599 ; Brook v. Garrod, 27 L. J. Ch. 226 ; 1 Chitty on Con. 136 ; Platt on Leases, 753; Adams’ Eq. *89 ; 1 Fonb. Eq. *431; 2 Parsons on Con. 541; 1 Wash. R. P. (4 ed.) 69 ; Curtis v. Burdick, 48 Vt. 166; Brown v. Williams, 28 Me. 254; Chase v. Ins. Co., 22 Barb. 527; Lorillard Ins. Co. v. McCulloch, 21 Ohio St. 176.
    2. There was no holding over which operated as a renewal. Taylor’s L. & T. §§ 22, 58 ; 1 Chitty on Con. 172 ; Veazie v. Bangor, 51 Me. 509 ; Wash. R. P. *383 ; 2 Hillard on Con. 172; Fry on Spec. Per. § 841; Kerr on Fraud, 80, 402; Cooper v. Phibbs, L. R. 2 App. Cas. 149 ; Evarts v. Strode, 11 Ohio, 480; Dixon v. Markland Canal, 5 W. & S. Sc. App. 445 ; Wheeler v. Smith, 9 Howard, 55.
   Okey, 4.

This suit to recover for the value of-improvements would have been denominated, under our former practice, an action at law. Its nature is not changed by the blending of suits at law and in equity under the general name of civil action. Nor is the distinctive character of the suit changed by the answer of the corporation, in which a recovery for rent is demanded upon the ground that there was a renewal of the lease. The only contingency upon which the lessees were required to renew, was that the lessor should, during the term mentioned in the lease, “ purchase the title in fee simple to said premises.” This condition was not satisfied by a mere agreement for such title, and the title acquired subsequently to September 1, 1879, was not available to the lessor in making defense to the action in the court below, on the issue there presented.

The lessor insists, however,- that the lessees continued to occupy the premises subsequently to September 1, 1879, and hence must be regarded as consenting to such renewal. But whether temporary and partial occupancy of premises by lessees should be regarded as consent to and in effect a renewal, under such a clause in a lease, must be determined from the circumstances, and not merely from the fact of such occupancy. Looking to the terms of the notice to renew, given by the lessor on August 30, 1879, the refusal of the lessees to renew, their removal from the premises on September 2, 1879, and the return of the keys to the office of the lessor shortly thereafter, we are led to the conclusion that there was no act of the lessees which should estop them to deny such renewal The fact that a small quantity of coal was permitted to remain in one of the bins until September 18,1879, is explained in the testimony, and cannot properly lead to any other conclusion than the one already stated, for the intention not to renew had already been manifested in unmistakable form.

There is no error in the record.

Motion overruled.


author: Oket, J.

text:
    Williamson v. Carskadden.
    1. In an action to enforce a written instrument, in the form of a real estate mortgage, and purporting to have beau executed and acknowledged as required by statute, an answer setting forth that the defendant never acknowledged the execution of such instrument, is sufficient.
    2. In such action, where it appears that the delivery of such instrument was made by one of several persons who signed the same, it may be shown by the others that the delivery as to them was unauthorized and fraudulent. •
    Appeal. Reserved from the District Court of Adams County.
    Abraham Williamson brought suit in the court of common pleas of Adams county, against John Carskadden and others, asking in his petition that the amount secured to him by a certain mortgage of real estate in that county should be ascertained, and the lands sold to satisfy such amount. The mortgage was signed and sealed by John, James, William, R. B., Ann and Elizabeth Carskadden in the presence of the subscribing witnesses, and recited that the mortgagors had.executed to the plaintiff a note for $2,650, dated November 10,1871, payable four years after date, with interest at eight per cent., payable semi-annually, and that the mortgage was given to secure the note. The certificate of acknowledgment was in proper form. It was signed by one Peterson, in his official character as a justice of the peace of the county, and contained the statement that the mortgagors (naming them) had appeared before him on November 10,1871, and acknowledged the signing and sealing the instrument to he their voluntary act and deed.
    The mortgagors, excepting John Carskadden, joined in an answer, in which they state they never appeared before said justice of the peace; that they did not acknowledge, nor did either of them acknowledge the signing or sealing of the pretended mortgage; that John Carskadden alone appeared before the justice of the peace and acknowledged the signing and sealing of said mortgage; that the certificate of the justice of the peace is false and fraudulent; that after John Carskadden had acknowledged the execution of such mortgage, he took the same to the plaintiff, and then, in the presence of the plaintiff,' wrote such a note as is described in the mortgage, and signed thereto the names of all the persons who had signed the mortgage ; that the defendants so answering had never signed, or authorized any person to sign, any such note; that after so making the pretended note, John Carskadden delivered the note and mortgage to the plaintiff ; and that the indebtedness referred to in such mortgage was that of John Carskadden alone, as the plaintiff well knew when he received such - note and mortgage.
    The plaintiff demurred to the answer, and the cause having been decided in the court of common pleas and appealed to the district court, the latter court reserved it to this court for decision.

      T. J. Mullen and J. M. Wells, for plaintiff.

      J. G. Marshall, for defendants.
   Oket, J.

This suit in equity is prosecuted on a real estate mortgage, regular in form, and actually signed and sealed by the Carskaddens. When delivered to Williamson by John Carskadden, the instrument appeared to have been properly acknowledged before a justice of the peace by all the persons who signed it; and there is no averment that the mortgagee had notice of any irregularity or defect in the acknowledgment, or that the indebtedness referred to in the mortgage does not exist: In fact, the execution of the instrument was acknowledged by John Carskadden ; and the question presented is, whether the other persons who signed it can be heard to deny that they appeared before the justice of the peace and acknowledged the execution of such mortgage.

In Pennsylvania, the officer taking the acknowledgment of a deed performs a judicial act, and in favor of bona fide purchasers, the certificate is conclusive. Williams v. Baker, 71 Pa. St. 476 ; Heeter v. Glasgow, 79 Pa. St. 79. In Ohio, “'the magistrate does not exercise judicial functions in taking such acknowledgment. . . . His act, though official, is purely ministerial.” Truman v. Lore, 14 Ohio St. 144, 151. Nevertheless, the certificate of such officer, where the grantor actually appeared before him, is, in the absence of fraud, conclusive evidence of the facts therein stated. Baldwin v. Snowden, 11 Ohio St. 203. The rigid enforcement of this rule'is required for the security of titles and the repose of society, and, indeed, by every consideration of public policy. Hence, where the testimony to impeach a certificate is uncertain or unsatisfactory, a court should decline to interfere; but, according to the decided weight of authority, where fraud is clearly shown, the certificate of acknowledgment should be declared invalid.

If it is true, as alleged by the defendants joining in the answer, that they never appeared before the officer or acknowledged the execution of such mortgage, the certificate of acknowledgment is, as to them, fraudulent; and in availing themselves of that defense, it is not necessary to show that the mortgagee had notice of such fraud. In fact, the governing principle is very broad. Thus, it has been held that in an action on a recognizance, which is regarded as a record, a plea in bar that the defendant did not acknowledge the recognizance is sufficient (The State v. Daily, 14 Ohio, 91; and see Callen v. Ellison, 13 Ohio St. 446, 454); and, however it may be as to the right to attack a judgment on the ground that there was no jurisdiction over the person (Scobey v. Gano, 35 Ohio St. 550, 553), it is not denied that, in a proper case, a judgment may be directly impeached on that gronnd.

Finding that the matter in the answer, above referred to, constitutes a defense to the action, the demurrer must bo overruled. But it. is suggested that this being done, sufficient appears in the pleadings to show the plaintiffs right to a judgment and order of sale, based on the instrument as an equitable mortgage. We think, however, that a conclusive answer to this suggestion is found in the fact that there is neither averment nor proof to warrant relief in the way suggested. Beyond that, can we say that Jolm Oarskaddcn had authority to deliver the instrument claimed to be a mortgage ? The answer is imperfect; it contains no express averment that he did not have such authority ; but it is charged, in substance, that John Carskadden, at tbe request and in tbe presence of tbe plaintiff, wrote tbe note and signed thereto tbe names of all the persons who bad signed tbe pretended mortgage ; that this was done without the knowledge or consent of tbe defendants so answering ; and that at the same time be delivered those instruments to tbe plaintiff, wbo knew that John Oarskadden alone was the-principal debtor. This afforded to the plaintiff conclusive evidence that tbe recital in the pretended mortgage, as to tbe execution of the note, was not true, and amounted to a denial that John Oarskadden bad authority to deliver such mortgage, except with respect to himself. That a delivery made by fraud is as invalid as an execution obtained by fraud, or an acknowledgment falsely and fraudulently certified, is perfectly clear; and hence, an additional reason is furnished for saying that, taking the averments in tbe answer to be true, such instrument cannot be enforced.

Tbe demurrer will be overruled and tbe cause remanded for further proceedings.