author: * Judge Hitchcock

text:
    *Henry Haines v. Henry Welling.
    If one utters slanderous words of another, stating at the time that he heard the charges from a person whom he names, he is not protected from the action of the injured party. A plea setting forth such defense is bad after-verdict.
    This was reserved in the county of Coshocton. The action is< slander, in which the declaration charges that the defendant uttered of the plaintiff certain slanderous words, charging him with the crime of larceny. It is unnecessary here to state the specific words.
    To the declaration the defendant pleaded, first, the general-issue ; second, a special plea in bar, setting forth in substance,, that one Benjamin Ulin spoke and published of the plaintiff the identical words laid in the declaration; and further, that the defendant, when he spoke the said words, declared in the presence and hearing of the same person in whose presence and hearing said words were by him spoken, that he had been told the same by said Henry Ulin.
    This latter plea was traversed by the plaintiff. The issues joined were submitted toi a jury at the last term of the court in Coshocton county, and a verdict returned for the defendant upon the second plea.
    After verdict, the plaintiff moved the court to direct a new trial,, and to order a venire facias de novo, assigning for cause that the verdict was against law and evidence, and that the second plea was no bar to the action; and also moved the court to order a repleader.
    Spangler and Culbertson, for the plaintiff,
    insisted that the second plea does not contain matter which in law operates, or ought to operate, as a bar to the action, and they cited the ease of McPherson v. Daniels, 21 E. L. R. 61.
    They further insisted that the plea was so far defective in form,, as not to constitute any defense.
    Swayne, for the defendant,
    contended that the form of the plea-was in accordance with the precedents, and cited 3 Chit. PI.. 1035.
    He further insisted that the matter of the plea was a sufficient defense, and that the case of McPherson v. Daniels was in contradiction to all previously decided cases, and ought not to be considered as law. Upon this point he cited 1 Term, 19; 2 E. 435; 5 E. 471; 3 Barn. & Cres. 24; 1 Com. Dig. 202; 4 Bac. Ab. 505;. Wright, 316.
   * Judge Hitchcock

delivered the opinion of the court:

Without going into a minute detail of the testimony in this case,. I will only say that, in the opinion of the judges who tried it, the: weight of that testimony was against the verdict. But inasmuch as it was not entirely against evidence, and as we do not like to interfere with the verdicts of juries in this class of cases, had there •been no question with respect to the pleadings, judgment would probably have been rendered for the defendant.

The'principal question presented by these pleadings is, whether it can be a good defense to an action of slander for the defendant to show by his plea, that when he spoke the words, he stated that ■he had heard them from another, naming at the same time his •author; and showing further that the author'referred to, had spoken the same words. We are aware that it is laid down in •some of the elementary books that such is the law. The same principle is found in reported cases; and it is known that such has been the decision of this court upon the circuit. But is it a sound principle ? Does it comport with the object and intention of the action of slander ?

' Slander is the defaming a man in his reputation, by speaking or writing words, from whence any injury in property or character arises, or may arise to him of whom the words are used.” Com. Dig. 496. Or it “is the publishing of words, in writing, or ‘by speaking, by reason of which the person to whom they relate becomes liable to suffer some corporal punishment, or to sustain some loss of property.” 6 Bac. Ab. 201. Or, according to Chan.cellor Kent, “the injury consists in falsely and maliciously charging another with the commission of some public offense, or the breach of some public trust, or with any1 matter in relation to his particular trade or vocation, and which, if true, would render him •unworthy of employment; or lastly, with any other matter or ■things by which special injury is sustained.” 2 Kent’s Com. 16. The object of the action of slander is to recover damages for the •injury sustained in consequence of such false and malicious ■charges, and also, where' there is a great degree of malice, to punish the slanderer for his misconduct. Now there can be no doubt that as great and lasting injury may be done to reputation, -as deep an impression may be made upon the minds of those who hear, where the slanderer speaks of a charge *made as a report, tracing that report to a particular individual, as if he made the charge upon his own responsibility. In many cases, there is no more effectual way of destroying character than by •dark insinuations, that the individual referred to is suspected, that ■this, that, and the other say that he is guilty. In truth, this is the course more usually resorted to, by him who is determined to inflict an aggravated injury upon his neighbor. But if the-matter contained in the plea in this case be a good defense to the-action, the individual thus conducting, if he can but prove that the persons referred to have said of him who is charged that he is guilty, will screen himself from liability, no matter as to the extent of the injury.

Again, if the principle be adhered to that a defense like the one interposed in the present ease is available, then the slanderer*will be at full liberty to propagate reports originating with the most worthless members of the community — originating with pei’sons whose characters, where known, would be a sure protection against any slander they might utter, but whose characters are or may be^ unknown to those to whom the slanderer makes the communication. As a matter of fact, we know that resort has been had to this kind of management, to gratify a malicious disposition, and at the same time to avoid responsibility.

Further, unless there be xnalice, there is no slander. In order to constitute the offense, the words must be falsely and maliciously spoken. In truth, malice constitutes the gist of the action. Malice will be implied from the speaking of certain classes of words. But this presumption may be rebutted. As much malice may be evinced in circulating as in originating slanderous rsportsj And that rule can not be a good one which would subject to liability the author while it exempts the propagator, both being actuated by the same malicious motive, and both inflicting the same degree of injury.

¥e have ever doubted the propriety of this principle, and, whenever an attempt has been made to defend under it, have witnessed more or less of its injustice, and of difficulties growing out' of it. In the case before the court there was, as appeared to the judges who attended the trial, evidence of a much more than ordinary degree of malice.

There is no necessity for it in practice. If slanderous words are spoken under circumstances which negative the *presumption of malice, whether an author be given or not, they are not actionable, malice being the gist of the action. And the question of malice is at all times open for investigation. In every case, whether the defendant be the author, or whether he bo - merely the propagator of a slander originating with another, the proper inquiry is, were the words maliciously spoken, and that question properly arises under the plea of the general issue. And should a defendant be able to satisfy a jury that, in speaking the words, he, in good faith and without any improper’ motive, had merely communicated information received from another, it is not to be expected that any jury or any court would mulct him in damages, for such state of case would rebut all presumption of malice. So far as the matter contained in the plea can be relied on as a defense, it is a defense under the general issue.

In a late case in the court of king’s bench, McPherson v. Daniels, 21 Eng. Com. Law, this subject was fully considered. It is true that the question before the court was rather as to the form than the substance of the plea — a plea substantially the same, if not precisely the same, with the one before this court in the present case. But in deciding the case, the court held, in strong language, that it was no defense in an action of slander that the ,person uttering the words should, when he uttered them, give his author.

It seems, to a majority of the court, that this decision is consistent with policy, right, justice, and common sense, and we are willing to adopt it as the law of this case.

The verdict of the jury must be set aside, a venire facias de novo awarded, and a repleader ordered. As, however, the plaintiff took issue upon the plea, instead of filing a demurrer, he .must pay the costs of the trial.

Judge Wood dissented.


source: Caselaw Access Project

author: Judge Wood

license: Public Domain

text:
    *Lessee of Mitchell and others v. Henry Eyster.
    Party interested in judicial proceedings, not concluded by the made up record, where important facts, existing among the papers on file, or in the minute book entries, are omitted in such record.
    In foreign attachment, indebtedness and non-residency of the defendant, and a levy of the attachment upon property subject to the suit, facts necessary to attach jurisdiction.
    Under the attachment law of 1805, sheriff omitting to sign the inventory and appraisement, a mere irregularity that does not affect the validity of the proceedings.

      Under the attachment law of 1805, it was regular to bring a foreign attachment against the administrators of a deceased debtor, in a case where such administrators would have been the proper parties, could process have been served upon them personally.
    A new enactment of a remedial law respecting judicial proceedings, with a repealing clause in general terms, saying nothing as to suits pending, does not abate such suits.
    This cause was adjourned from the county of Trumbull. It was docketed in this court at December term, 1834, and continued. The land in controversy is claimed by the lessors of the plaintiff, by descent from their ancestor, Abraham Falconer, and by the defendants under certain proceedings in attachment against the administrators of Abraham Falconer. The plaintiffs’ title was admitted to be perfect, unless divested by those proceedings.
    The writ of attachment issued from the court of common pleas of Trumbull county, on March 19, 1810, returnable to the March term of that year. It contained no recital that an affidavit had been made of the indebtedness or non-residence of the debtor, other than the command to attach the goods, chattels, lands, etc., of Abraham Falconer, late deceased, which are in the hands of Isaac Newkirk and Betsey Falconer, administrators of A. Falconer, deceased, now non-resident debtors. This writ was returned as levied upon the lands in controversy, with an inventory and appraisement signed by two freeholders, but not otherwise signed by the officer than as part of his return on the writ. Upon this return, auditors were appointed to adjust the claims, and the cause continued to the next term, and again continued to the third term, November, 1810, when the auditors reported, and an entry was made in these words: “ Whereupon it is considered by the court that judgment be entered agreeably to the aforesaid report.” An order was made that the land be sold, and the cause continued by continuances to November term, 1811, when, upon a return of the sale and conveyance of the land attached, a formal judgment was entered, that the plaintiff recover of the defendants, in their capacity of administrators, the sum of six hundred and sixty-six dollars and forty-three cents damages, and eight dollars and thirty-five cents costs, as reported by the auditors.
    The clerk made a record of these proceedings as above recited After their validity was drawn in question, a motion was made in the common pleas to amend the record, by inserting in it the original affidavit, found on file, upon which the attachment issued,, and also correcting the entry of the judgment of November term, 1810, so as to make it complete as to the amount recovered. These amendments were ordered by the court.
    Loomis and Metcalf, for the plaintiff,
    *upon this state of case, contended that the proceedings in attachment were inoperative to divest the title of the plaintiff, because :
    1. That the record showed no affidavit as a foundation upon which the writ of attachment issued.
    2. That the sheriff had not signed the inventory and appraisement as a party acting with the freeholders.
    3. That the sale of the land was void, because made before final judgment.
    4. That the suit should have been brought against the heirs, instead of the administrators.
    5. That the proceedings, while pending, were put an end to by the repeal of the law under which’they commenced, without any saving clause.
    6. That the ease could not be aided by the matter inserted in the amended record.
    , As a general principle, they insisted that an attachment was an extraordinary process, unknown to the common law; that the proceedings upon such process must be construed strictly, and that the record must sufficiently show that the facts existed giving to the court jurisdiction, otherwise that the proceedings were void. They cited Burden v. Fitch, 15 Johns. 141; Bigelow v. Sears, 14 Johns. 40, 41; 2 Ohio, 239 ; 4 Ohio, 239; 5 Ohio, 155.
    Upon the subject of mistaking parties defendants, they cited 1 Stark. Ev. 185, 191.
    On the effect of the repeal, they cited 1 Kent’s Com'. 569; 1 Wm. Black. 451; 4 Yeates, 396; Wheat. Dig. 569.
    Hitchcock, for the defendants.
   Judge Wood

delivered the opinion of the court

A record is made of judicial proceedings for the purpose of preserving the evidence of what was transacted for the use and benefit of those interested in these transactions. If,'in making up this^ record, the clerk omit any material fact, which papers on file, or entries,on the minutes or journals of the court, show to have existed, such omission can not prejudice the party further than to put such party to the inconvenience of hunting up the proofs. ■ It is not uncommon, *when the transcripts of the records of inferior courts are certified, upon judicial process, to superior courts, and are found defective, to allege diminution, and issue a pro'cess for a more complete record. In such case, the omitted fact, if found in a proper form, is added to the record, and certified as part of it.

In this case, the omission of the clerk to embody the affidavit, upon which the writ of attachment issued, in the record, does not deprive the party interested of the use of that affidavit. It is properly added to and made part of the proceedings, and shows that the first exception taken by the plaintiffs’ counsel is incorrect in point of fact.

The same principle is applicable to the third exception taken. The journal memorandum of the entry of judgment at November term, 1810, is a minute of what was done, which, upon making up the record, might well be filled up and made complete by inserting in it all that it properly covered. It was, in substance, a judgment upon the auditor’s report as to the amount due. That report is on file, and is referred to in the journal entry, and thus made for the purposes of justice as a part of that entry. We think, therefore, that the first and third exceptions are not sustained by the facts. There was an affidavit of indebtedness and non-residence, and there was such a final judgment as the law contemplated antecedent to the sale of the land.

To sustain the claim of the plaintiffs, it is indispensable that the proceedings on the attachment be regarded as comm non judice, and, therefore, absolutely void, either at their commencement or at the time of the judgment and the order of sale.

The facts necessary to attach jurisdiction at the commencement of the suit were these: the indebtedness of the .defendant, his non-residence, and the actual levy of the attachment upon property owned by him, or in his hands subject to the payment of the debt sued for. Upon the proper existence and showing of these facts the jurisdiction of the court attaches. They are ail shown to have existed in the ease under consideration, consequently the proceedings can not be considered as coram non judice at their commencement.

The second exception taken is that the sheriff did not sign the inventory and appraisement with the freeholders. This is but an irregularity in the intermediate proceedings, *and can neither overreach the jurisdiction already attached nor invalidate the subsequent judgment and order of sale.

The position that the suit should have been brotight against the heirs, and not the administrators, is strongly urged by the plaintiffs’ counsel. If they are right, these proceedings are not maintainable, for the making the proper parties defendants is one of the facts essential to giving the court jurisdiction.

The law under which the suit was brought expressly provided that “in case of a debtor residing out of the state, the writ of attachment, as above provided, may issue against his heirs, executors, or administrators.” The writ of attachment, “ as above provided,” was authorized to bo levied upon “lands, tenements, goods, chattels, rights, credits, moneys, and effects.” In determining whether it should issue against the heirs or against the personal representatives, it was necessary to look at the nature and character of the ¡action to be commenced. By what rule could this be decided? We think by none better than this: were all the parties defendants in the state, against whom should the suit be brought for which the attachment is prosecuted ? In the case stated, the suit in question must have been instituted against the executor or administrator. It could not have been sustained against the heir in the first instance, under the law then in force. We are satisfied the administrators were properly made defendants.

This attachment was commenced in March, 1810. When the act of February 14, 1810, took effect, on the first of June of that year, the case stood upon the return of the property attached<and the appointment of auditors. The new law repealed that under which the attachment issued, and whilst it re-enacted all the provisions of -the repealed law, it contained no saving clause for the protection of suits pending. The plaintiffs’ counsel contend that this repealing law takes away the foundation upon which the attachment was commenced, and rescinds the power of the court to •proceed further in the case; that it leaves nothing for the future action of the court to stand upon. We can not adopt this opinion.

An attachment such as the one in question, though a statutory, is a remedial process. The law authorizing the commencement ,of an attachment for debt, and the proceedings upon it, contains no provisions of a penal character; none more so, certainly, than every law that subjects real estate to be transferred from one person to another upon judicial ^process. ' Where there is no express indication of legislative intention, it is not to be sssumed that it was intended by any new enactment to arrest the regular prosecution of process essentially remedial, and take away the right acquired under it. Possibly it is competent for the legislative power to do this; but it is only to be imputed to them when the language they have employed admits of no other interpretation. Here that is not the case.

The law of 1810 re-enacts substantially all the provisions applicable to the case before us of the law of 1805. The instant one law ceased to have effect, the other came into operation. The rule of proceeding and of property was never changed.

It is remarkable of the enactments of the session of the legislature of 1809-10, that in their revisions of the general laws, at that time, they studiously omitted a saving clause, connected with the repealing clause of the revised laws. The statutory civil code was extensively revised that session. Among the acts necessarily affecting judicial process, then pending, are the following: “An act to provide for the recovery of money secured by mortgage;” an act allowing mutual debts and demands to be set off, and concerning tenders;” “an act for the limitation of actions;” “an act regulating judgments and executions;” “the act allowing and regulating writs of attachment;” “an act directing the mode of proceeding in chancery;” “an act to reduce into one the several acts organizing the judicial courts, defining their powers, and regulating their practice.” Not one of these enactments contain a saving clause to protect suits pending. No question was raised at the time as to their effect upon such suits. The bar and the courts seem to have concurred in the interpretation of the legislature of that day that, in remedial proceedings, such saving clauses were unnecessary. It would be very unsafe for us now to disturb this then universally admitted proposition, upon the authorities of the jurists or of the adjudged cases of other states or countries.

It is very remarkable, too, that there is one law of the enactments of this- session of 1809-10, that contains such a saving clause as is called for by the plaintiffs’ counsel in this case. This is found in the act “levying a tax on land,” and in a proviso to the general repealing clause. By this proviso all penalties incurre'd and prosecutions pending are expressly *saved; And this saving is iu exact accordance with the true principle. The law was penal, not remedial; consequently, the penalty and the suit to recover it would be lost if not saved from the effect of the repeal by legal provision. This shows that the subject was understood by the legislature, in 1810, just as the courts and the profession understood it. To this construction we are bound to conform. And we find no difficulty of principle in doing so.

Note. — The case of Voorhees, plaintiff in error, v. Bank of the United States, 10 Peters, 449, decided in the Supreme Court of the United States, January term, 1836, sustains every position taken in this opinion. The questions raised were originated upon a proceeding in attachment in Hamilton county, Ohio, in 1807 and 1808. — Reporter.

With respect to the amended or corrected record, it is unnecessary to say more than has been said. Whether we obtain the additional facts it contains from it, or from their existence on-the1 files and the'journals or minutes, does not affect the case. We are bound to look to these facts as existing, and to give them the weight due to them, so far as they affect the questions before us.

The judgment must be for the defendant.

Judge Hitchcock, having been counsel for the defendant, did not sit in this case.


author: *Judge Hxtohoook

text:
    John Monroe v. John Doe, Lessee of Thomas Morris.
    An undisturbed possession of lands for twenty years is no bar to the recovery - in ejectment, upon a sale for taxes made within that period.
    Deserved in the county of Clermont.
    The original case upon which this writ of error is brought, was submitted to the court of common pleas on the following agreed state of facts:
    1. That a patent issued for the land in the declaration men* tioned, and which is the subject of controversy, to one Oliver Towles; that the same was sold for taxes due thereon to one John Bogges, who assigned the certificate of purchase to said Thomas Morris, lessee of the plaintiff, to whom the auditor of the county conveyed said land, by virtue of said sale, before the commencement of this suit; that said land was taxed and sold for nonpayment of taxes as aforesaid in the name of Towles, the patentee, according to the tax laws.
    2. That a patent issued for said land to 'William Lytle, *and he, after the issuing of said patent, to wit: on July 3, 1810, conveyed the same by deed, duly executed, to one Jones Bunnell, who, under said deed, entered upon and occupied said land from the date of said deed until April 10, 1811, on which last-named day said Bunnell, by deed duly executed, conveyed said land to said John Monroe, who then entered upon and occupied the same, and has continued said possession ever since, and still holds said possession.
    3. That the patent for said land to said Towles is older in date than that which issued as aforesaid to said Lytle.

      4. That the land deeded by Lytle to Bunnell, and by Bunnell to Monroe, was recovered in ejectment, in the Supreme Court of Clermont county, by Towles; that application was made for the value of improvements by Monroe; that the same was assessed and returned, where the cause is still pending, no writ of possession having issued..
    It was further agreed that if the law arising but of the above facts was with the plaintiff, then the court should render judgment in his favor for the land in controversy, otherwise that judgment should be rendered for the defendant.
    Upon this agreed state of facts, judgment was entered for the plaintiff, to reverse which judgment this writ of error is brought, and the general error assigned.
    M. Marshall, for plaintiff in error,
    insisted that the defendant in the court of common pleas was protected by the statute of limitations. The case shows that he, and those under whom he claims, had been in possession more than twenty-one years. The plaintiff is in no better situation in consequence of the purchase for taxes than Towles’ would be. He merely purchased Towles’ title. Towles could not sustain an action against the defendant, because the statute would continue to run, notwithstanding the former recovery, execution of which is stayed under the occupying claimant law. The former recovery would not operate as a bar to a new action, neither would it operate to take the plaintiff’s case, in such new action, out of the statute of limitations. He cited the following authorities: Tillingliast’s Adams on Eject. 76, 77; 2 Hen. & Munf. 318; 1 Marsh. Ky. 61; 3 Litt. 34; 4 Mon. 302; 1 Marsh. 233; 3 Marsh. 30; 2 Bibb,’150 ; 4 Litt. 233; 4 Mon. 350 ; 6 Mon. 491.
    No argument was presented for the defendant in error.
   *Judge Hxtohoook

delivered the opinion of the court:

The ground i’elied upon to reverse the judgment in this case, is, that the facts agreed, show that thei’e has been in Monroe and those under whom he claims an uninterrupted possession of more than twenty-one years, which, it is insisted, is evidence of right and constitutes a good defense in ejectment. In ordinaxy cases, there can be no doubt of the soundness of this position, and there is certainly much ingenuity displayed by counsel in striving to make it applicable to the case under consideration. Had the suit been brought in the name of Towles, or rather had the demise been in his name, there might have been more difficulty. Still, there is no statute of limitations which would pi-event Towles from the recovery of these lands. For then he has already subsisting judgment which he can, at any time, carry into execution, by complying with the law, and paying for the improvements. Whether, under these circumstances, he could sustain a new action, and set up the former recovery, to bring himself within the savings of the statute of limitations, is, to say the least of it, doubtful. But I apprehend it is not necessary to decide this point. This suit is not on the demise of Towles, but on the demise of Morris, who claims title as a purchaser for taxes. The great mistake in the argument of counsel is, in the assumption, that inasmuch as the lands were listed in the name of Towles, the tax purchaser stands in the place of Towles, and must take the land subject to all his disabilities and liabilities. In other words, that he takes the title of Towles, and nothing more.

There is a difference in sales for taxes and sales xxpon execution. The statute regulating sales upon execution, prescribes the mode of proceeding and the effect of the sheriff’s deed. He shall make to the purchaser “ as good and sufficient a deed of conveyance, for the land and tenements so sold, as the person or persons against whom such writ or writs of execution were issued, might or could have made for the same, at or any time after said lands became liable to said judgment.” And the deed so made “ shall vest in the purchaser as good and as perfect an estate, in the premises therein mentioned, as was vested in the party at or after the time when said lands and tenements became liable to the satisfaction of said judgments.” 29 Ohio Stat. 105. ■ The sheriff’s deed purports to transfer the title of the judgment *debtor and nothing more. It is different in sales of taxes. True, the land taxed is not forfeited t'o the state until it has been offered for sale. But still, the state has a lien upon all land not exempt from taxation, which is calculated to be perpetual, and which can not be affected by any sale or transfer. 29 Ohio Stat. 278. Neither will any length of possession affect this lien. It can be removed in no other way than by the payment of all taxes, penalties, and interest due upon the land. When the land is sold, or rather after it has been sold two years, it is made the duty of the county auditor to make a deed to the purchaser, and the lien declares the effect of this deed to be, to “ vest in the grantee, his or her heirs and assigns, a good and valid title, both in law and equity.” And the law further provides, that the deed so made “shall be received in all courts as prima facie evidence of a good and valid title imsuch grantee, his heirs and assigns.” From these parts of the law, it is apparent that while the sheriff’s deed -purports to convey nothing more than the interest of the judgment debtors, the auditor’s purports to convey the absolute title.

To permit the statute of limitations to operate as a bar in the present case, would be in effect to defeat the lien of the state for tuxes. It woul 1 be to permit the statute to run against the government. And as well might we permit the statute to operate where the title to the land itself remains in the government, as in a case like the present. Had Monroe himself paid the taxes, then the case would have been different. True, the auditor’s deed would be prima facie evidence of title. But still, this might have been rebutted, by showing that the taxes had been paid. Such payment would have removed the lien of the state, and would have shown that the sale itself was improper. But there is no evidence or pretense of any such state of case. The plaintiff in error rests upon his naked possession, insisting that, inasmuch as this would be a good defense against Towles, it must be so against Morris.

It is not so, however. The title of Morris may be considered as an original title derived from the state. And before his claim can be barred by the statute of limitations, there must have been a continuous adverse possession for the term of twenty years, commencing at a time subsequent to his purchase. There is no error in the judgment of the court of common pleas, and the same is affirmed with costs.


author: Judge Collett

text:
    *Treasurer of Guernsey County, for Use, etc. v. Lennington’s Adm’rs.
    The law of 1834, directing upon what- liquidation of an executor or administrator’s accounts suit may he sustained against securities, does not apply to suits commenced before the passage of that law.
    This cause was adjourned from the county of Guernsey. It was an action of debt, upon the bond of an administrator, and brought against the securities. The bond was taken under the law of 1816, and'the suit was commenced before the taking effect of the law of 1834 on this subject. The case made in the declaration is this:
    Upon the death of Thomas Haines, the intestate, Lennington, and John Haines, were appointed administrators of Thomas Haines deceased, gave bond, qualified, and took upon themselves the execution of the duties of administrators of Thomas Haines, deceased. In the execution of their duties, they received considerable sums of money of the estate of Thomas Haines. No account was rendered of their administration, although the time allowed by law, and further time extended by the.court, expired in Lennington’.s lifetime, who died, leaving the whole business unsettled, and administration upon his estate was granted to the defendants. The declaration then recites that subsequent to the death of Lennington, the individual for whose use the suit was brought, recovered two judgments against J. Haines, surviving administrator of T. Haines, for debts due from T. Haines in his lifetime. The breach assigned, is for the nonpayment of these judgments. The defendants demur, .generally, to the declaration.
    B. S. Cowen, for plaintiff.
    W. B. Beebee, for defendants.
   Judge Collett

delivered the opinion of the court:

A number of questions are raised in this cause, which it is unnecessary now to decide. The suit was brought before the statute' of 1834, directing upon what liquidation of the accounts of executors or administrators suits should be sustained against their securities. It must be decided upon the rules established before the enaction of that statute. These are laid down in Chaplain v. Treasurer of Champaign County 4 Ohio, 98, and Treasurer of Montgomery County v. Kemp, 5 Ohio, 241. Upon the authority of these cases the demurrer must be sustained.


author: Judge Collett,

text:
    *Carlisle and Waddle v. Wm. McDonald.
    .Cause decided in bank, rehearing can only be allowed at the same term, in the same court.
    This cause came before the court upon a motion to dismiss an order for a rehearing upon the following petition and allowing : “To the honorable the Supreme Court of the State of Ohio, the petition of Carlisle and Waddle respectfully represents, that they have prosecuted a bill in chancery v. McDonald, which came before the Supreme Court of the State of Ohio, at their special session at Columbus, in December, 1833, for decision, which bill, answer, and replication, with exhibits and depositions, are, as upon reference to them, will appear, and which are made part of this petition. That the said Supreme Court, at their said special session, pronounced a decree dismissing said bill. Tour petitioners humbly request that the said cause be reheard, for reasons apparent on the said proceedings and decree, and full equity done in the premises, and your petitioners will pray.”

      G. Swan, for complainant.
    The prayer of the foregoing petition is allowed.
    “E. Lane,
    J. O. Wright,

      “December 21, 1833. Judges Supreme Court."

    Leonard,
    in support of the motion to dismiss;
    A rehearing is never allowed on a bill of review, or on a supplemental bill in the nature of a bill of review. Cowp. E<j. 93, 94, 96; 2 Mad. Oh. 404-407.
    E. Douglass, on the same side.
    Gr. Swan, contra.
   Judge Collett,

delivered the opinion of the court;

Two judges can allow a rehearing of a cause decided on the circuit, where two judges hold the court and make the decree.. But upon a decision in bank, a rehearing can only be allowed in open court in bank. The motion to dismiss must prevail.


author: Judge Hitchcock

text:
    *John McCoy v. Wm. Y. Gilmore, Administrator de bonis non of Robert Kercheval, deceased.
    Anota for eight hundred and sixty, not saying what, concludes thus: “For value received, $860,” is a good note for that sum. Note made payable to A. B., administrator of C. D. A. B. dies, suit must be brought in the name of his executor or administrator.
    Deserved in the county of Eoss.
    This case comes before the court on writ of error to the court of common pleas of Eoss county. The original case in that court was assumpsit, in the name of Gilmore, as administrator de bonis non of Kercheval, against John N. Pomeroy and John McCoy. The writ was returned served as to McCoy, and not found as to Pomeroy. Upon the return of the writ, the plaintiff filed his declaration containing four counts. ,
    The three first counts'are upon a promissory note made by the defendant, to one Henry Johnson, administrator of Robert Kerchevel, for the sum of eight hundred and sixty-eight dollai’s, payable twelve months after date, and bearing date April 17, 1833, and averring in each count that said note was made to said Johnson, in his capacity as administrator. The fourth- count is for goods sold by the said Henry Johnson, as administrator of Kercheval. It is further averred that Henry Johnson is deceased, and that the plaintiff has been appointed administrator de bonis non of Kercheval.
    The defendant craves oyer of the note, which is as follows:
    “ Chillicothe, April 17, 1833. Twelve months after date we promise to pay Henry Johnson, administrator of Robert Kercheval, deceased, the sum of eight hundred and sixty-eight for value received — $868. Signed, John N. Pomeroy,
    John McCoy.”
    After which he demurred generally.
    Upon hearing, the court of common pleas overruled the demurrer, and rendered judgment in favor of the plaintiff, for the amount of the note and interest.
    To reverse this judgment, this writ of error is brought, and it is assigned for error:
    1. There is no such privity of contract between the deceased Kercheval and the defendant in error, as will authorize a suit in the name of (Gilmore, administrator de bonis of Kercheval.
    2. That the note upon which suit is brought, is not such an instrument, and does not contain such a promise as will lay the foundation of an action.
    ♦Other errors are assigned, but it is unnecessary to notice [269 .them.
    Sill, for plaintiff in error:
    1. This action should have been brought by the administrators of Henry Johnson, and not by the present plaintiff, for though the note was given to Johnson with the addition of administrator, yet this is mere surplusage, and may be rejected. 1 Salk. 207; 3 lb. 105 ; Wilcox Cond. 300, 301; 2 Ohio, 256; 4 Term, 347. This note, if recovered, would not be assets. By taking it, Johnson rendered' himself personally liable to the creditors of Kercheval.
    2. The paper set out as a note is not, from the face of it, a promissory note. No money is promised to be paid, .and the^figures in the margin, or at the bottom, can not be taken into consideration. They constitute no part of the instrument.
    3. If the instrument sued is of that nature that Johnson must have brought suit in his representative character, then it is admitted that the present plaintiff may sustain an action upon it in his representative character. But Johnson might have sued in his own private character, and if he had sued as administrator the addition would have been considered as a mere description of the person. In the event of a judgment against him, that judgment would have been made of his own goods, and not of the goods of the deceased; neither could he have appealed without bond.
    T. Scott & Son, for defendant:
    1. It is averred in the declaration that the note in suit was given to Johnson in his representative capacity as administrator of Kercheval, and the demurrer admits the demand tobe^true; consequently the right of action, upon the death of Johnson, vested in the plaintiff’s administrator de bonis non. The'money, had it been collected by Johnson, would have been assets in his hands, from which it would seem necessarily to result that this action 'is well brought.
    Executors and administrators may sue in their representative character in all cases where the money, when received, would .be assets. 1 Term, 487; 3 East, 104; 3 Term, 659; 2 M. & S. 408, 216, a; 2 Lev. 165; 6 Price, 412; 2 Dowl. & Ryl. 270; 5 East, 150; 1 Term, 312.
    *When an executor or administrator dies, rights belonging to him as such pass to the representatives of the testator or intestate’s estate, and therefore an administrator de bonis non must be appointed. 5 Price, 412; Ham. 136; Chit. PI. 14; 1 B. & C. 154; 2 D. & B. 272; 7 Term, 182; Saund. Pl. 497, 572.
    2. A complete answer to the objection, raised by the second assignment of error, will be found in 2 Chit. Pl. 30, 31, 80; 3 Stark. Ev. 1235; 6 Ohio, 416.
   Judge Hitchcock

delivered the opinion of the court:

As to the second error assigned we have no difficulty. It is true that in the written bond of the holder the word dollars is omitted, undoubtedly by mistake. But in the same line eight hundred and sixty-eight dollars in figures is inserted. This, we apprehend, is sufficient to make the instrument a good promissory note for that sum.

The other error assigned presents more difficulty. It raises this question, whether an administrator de bonis non can sustain an action in his own name and in his representative character, where a promissory note is made payable to the former administrator, in which the payee is described as administrator of the intestate. So far as we have known anything of the practice upon the subject in this state, it has been to sue such notes in the name of the representative of the person to whom the note was given. There is much force in the authorities cited by the defendant’s counsel to show that a different practice might, with propriety, be pursued. Still we are not satisfied that it would be proper. Certainly there is no privity of contract between the intestate and the maker of the note. It is a contract made after his decease, and the only indication that it has any connection with his estate is, that it is made payable to the payee, naming him as administrator. This has been held to be a mere description of the person. By taking the note the payee may become liable to the creditors of the intestate to that amount. He will be so liable if the consideration of the note was any part of the estate of the intestate ; and being so liable, it seems to be proper that his representatives should collect the money. To adopt a different principle might lead to this difficulty, that where an administrator had .improvidently intrusted the property of the intestate to irresponsible individuals, he would ^exonerate himself from liability by taking notes payable to himself as administrator. The promise in the present case is to Henry Johnson, administrator, etc. This addition has heretofore been considered merely as a description of the person, and we are inclined still so to consider it. The suit should have been brought in the name of the representatives of the payee, and not of another person. On this account we think the court of common pleas erred in overruling the demurrer, and for that error the judgment will be reversed.

Judge Collett dissented.


text:
    Lessee of Joseph Shepherd v. Commissioners of Ross County.
    A decree of the circuit court of the United States, made in that court sitting for the district of Ohio, directing the conveyance of lands, does not operate as such conveyance under the laws of Ohio.
    This case was reserved in the county of Ross.
    It is an action of ejectment for the recovery of a small parcel of ground at the south' end of the bridge over the Scioto river, near Chillicothe. The case was submitted to a jury at the last term of the court in Ross county, and by consent of parties, a verdict was returned for the plaintiff, subject to the opinion of the court, upon an agreed statement of facts, in substance as follows, to wit:
    “ The premises in controversy are covered by a patent granted by the United States to the children of Nathaniel Massie, deceased, in whose name the entry and survey is made, upon which the patent is based; said Massie, in his lifetime, conveyed the premises to Thomas James, who afterward conveyed the same to Humphrey Fullerton, and Fullerton, by article of agreement in writing, permitted the bridge company to occupy the same, so long as said bridge continued to be used as a toll bridge, under which article the defendants are in possession and claim title
    “A decree was rendered in the seventh circuit court of the United States and district of Ohio, in a suit in chancery, prosecuted by John Watts against said Fullerton and others, by which decree Fullerton was ordered and directed to convey the premises in question to Watts; but it is not, however, believed that any conveyance was ever made in pursuance of said decree.
    *“Watts afterward obtained a patent covering the premises, which patent is junior to the one granted to the heirs of Massie as aforesaid, and subsequently conveyed to the lessor of the plaintiff.
    “If, upon investigation, the court shall be of opinion that the plaintiff is vested, with the legal title, judgment is to be entered’ upon the verdict; but, if otherwise, the verdict is to be sot aside, and a new trial ordered.”

      Douglass, for plaintiff.
    Scott, Creighton and Bond, for defendant.
   Judge Hitchcock

delivered the opinion of the court:

The agreed case shows that the legal title to the premises in controversy, or-more properly speaking, the right of possession, is in the defendant, unless that title was vested i'n Watts by the decree of the circuit court. When this decree was made we know not, as it is not before us in the form in which it was entered. It directed Fullerton to convey certain lands, including the premises in controversy. Whether this decree was complied with is not, however, known ; but it is supposed that it was not. The simple question, then, presented for determination is, whether a decree of the circuit court of the United States for the conveyance of land, operates as a conveyance; whether by the decree alone, without any further act performed, the title is changed.

Previous to the act of February 19, 1810, “ directing the-mode of proceeding in chancery,” all decrees in chancery rendered by the courts of this state were to be enforced by sequestration or execution ; but by section 41 of that act (1 Chase’s Stat. 689), it is provided “that where a decree shall be made fora conveyance, release, or acquittance, in either of said courts, sitting as a court of chancery, and the party against whom said decree shall pass shall not comply therewith by the time appointed, then such decree shall be considered and taken in all courts of law and equity to have the same operation and effect, and be as available as if the conveyance, release, or acquittance had been executed conformably to such decree.” This same principle has been continued in the statutes to the present time. It is contended by the plaintiff’s counsel, that a decree of the circuit court of the ^United States must have this effect when made within the district of Ohio. But is it so? Section 1 of the act of 1810, 1 Chase’s Stat. 685, gives to the court of common pleas jurisdiction “in all cases properly cognizable by a court of chancery.” Section 2 gives the Supreme Court concurrent jurisdiction with the court of common pleas in all cases in chancery where the title to land is called in question, or the matter in controversy exceeds one thousand dollars, and absolute jurisdiction in all cases originating in the court of common pleas. Through the whole law no other courts are referred to. These are, in fact, the only courts of equity acting by authority of the state. Section 41 refers specifically to the decrees of these courts. The words are, “when a decree shall be made for a conveyance, release, or acquittance in either of the said courts’’ etc. We think that the principle can not, by any rule of construction, be extended beyond those courts.

We know of no law of the United States, giving to the decree of the circuit court thi's effect; and certainly there is no law of this state for that purpose. The decrees of that court operate upon the person, and will be enforced,' as we suppose, like the decrees of the high court of chancery in England, by attachment and sequestration. In the opinion of this court, the decree referred to in the agreed facts did not vest in -the lessor of the plaintiff a legal title to the premises; of course a new trial is ordered, the costs to abide the event of the suit.


text:
    Hugh Evans, for the use of D. S. Bell, v. Michael Instine.
    In attachment against an absconding debtor, who has not entered an appearance, and where the attachment was served upon property not owned by the defendant, but withdrawn from the attachment on the suit of a third person, the proceedings are coram non judice.

    Reserved in the county of Champaign.
    This is an action of debt. The declaration contains two counts:
    1. Upon a judgment rendered in the quarterly court of Monongalia county, in the commonwealth of Virginia, at the suit of Evans v. Instine, on November 11, 1802, for the sum of fifteen dollars damages, and five dollars and fifty-two cents costs of suit.
    2. Upon a judgment rendered in the same court, on the *same day, and between the same parties, in favor of the plaintiff, for eighteen dollars damages, and five dollars forty-two cents costs.
    To this the defendant pleaded nil debet and two special pleas in bar, which it is unnecessary to notice.
    On the trial of the case the plaintiff offered in evidence two transcripts, purporting to.be copies of proceedings in the quarterly court of Monongalia county. From these it appeared that the plaintiff, on November 8, 1802, procured to be issued two writs of attachment against the defendant, by one Nathan Hall, a justice of the peace, first having made oath that the defendant was an absent debtor. These writs of attachment were on the same day exr ecuted upon .personal property and returned. On the eleventh day of the same month, judgments by default were rendered for the same sums as stated in the declaration.
    ■ To show that the property attached had not been appropriated to satisfy the judgments, the plaintiff next introduced a transcript of a proceeding in chancery, commenced on December 15, 1811, in the name of Philip Huffman, against the said Hugli Evans, in which Huffman claimed as his own, the property levied upon in virtue of the attachments, and sought to enjoin Evans from selling the same to satisfy the judgments against Instine.' On final hearing, the property was found to be in Huffman, and a perpetual injunction decreed.
    The plaintiff having closed his testimony, the defendant moved the court to overrule the evidence and direct a nonsuit, which was done accordingly.
    Whereupon the plaintiff moved to set aside the nonsuit, and for a new trial.
    D. S. Bell, for plaintiff.
    Hamilton, for defendant.
   Judge Hitchcock

delivered the opinion of the court.

The evidence in this case shows that two judgments were rendered against the defendant, by default, in the quarterly court of Monongalia county, Virginia. It is presumed that the proceedings which resulted in the rendition of these judgments were in conformity to the laws of that commonwealth. *But although these judgments were rendered, still no process had been previously served upon the defendant; he had not appeared in court, nor had any property of his'been seized in attachment. Without inquring as to the effect of a judgment in foreign attachment, where the property of a defendant has been taken in virtue of the writ, we are clear in the opinion that where the property of a stranger has been levied upon, such service does not so far give any court jurisdiction as that a judgment rendered can be of any effect.

The motion is overruled.


author: Judge Lane

text:
    Lessee of Henry Helfenstine v. Jacob Garrard et al.
    English statute of uses, not in force in Ohio at any-period of its government,
    This was a motion for the new trial of an action of ejectment, reserved in the county of Madison.
    The .plaintiff declared upon a demise of Henry Helfenstine. At the trial he produced a patent conveying the land to “Peter Helfenstine, in trust for the heirs and devisees of Peter Helfenstine, deceased,” with proof that he was one of the heirs of the decedent; and because the court rejected their testimony, as not establishing ,a legal title in the heirs of the deceased, P. Helfenstine, he makes ¡this motion for a new trial. •
    Leonard and Kent, for plaintiff.
    'Swan, for defendant.
   Judge Lane

pronounced the opinion of the court:

The patent transfers the fee of the land to Peter Helfenstine, in. trust for certain heirs, of whom the plaintiff is one. In England •the statutes of uses, 27 H. Till, c. 10, operating upon this state of facts, would invest the cestui que use with the legal title. If that (■statute be in force here, the plaintiff is entitled to-recover.

The case is argued by counsel for the plaintiff with groat ability ; but we are not led to adopt their conclusion. After a political organization, and the administration of justice by courts, within the State of Ohio, for the period of forty-eight *years, we find no traces of the authority of the statute of uses at this •time as a rule of property, and no distinction is known in practice between uses and trusts. And none- seems necessary, since uses in our construction are not attended with those exceptionable .privileges which they possessed in England before the statute and every quality of trusts is attached to them. Our system of conveyancing, although it has grown out of the English system, does not depend upon the statute of uses, but has taken its form and derives its authority from our own statutes and local usuges. Under these circumstances, the recognition of the power of this statute is not only unnecessary, but would be mischievous, by the introduction of new and complex rules of property. The court unite inppinion that the statute, if ever in force, became so by the statute of 1795, or of 1805, 1 Chase’s Laws of Ohio, 190, 512; and was repealed by the statute of 1806,1 Chase’s Ohio Laws, 528, before the date of this patent.

Motion for new trial overruled.


text:
    A. P. Howell v. Cincinnati Insurance Company.
    A loss occasioned by the negligence of the officers of a steamboat is not chargeable to the insurers, unless the policy contains an agreement to insure against barratry.
    Conflicting testimony reviewed and its effect considered. New trial not granted where the case went fully to the jury upon the proofs.
    If the insured, at the time of taking the policy, suppress any fact material to a just estimation of the risk, or make any untrue representation that affects it, which is not true, the insurers are not bound.
    In a suit between the insurers and insured, on a policy in a steamboat, the captain in command, at the time of the loss, is a competent witness.
    Yerdict between the .plaintiff and a different insurer, touching the value of the ' subject insured, no ground for a new trial.
    Tuts cause was adjourned from the county of Hamilton, and came before the court, upon a motion made by the defendant, for a new trial. The action was brought upon a. policy of insurance on the steamboat ’76. The policy was taken for a year, and'bore date December 2, 1831. The loss happened December 2, 1832, about noon. The case is stated at large, as the points made are discussed in the opinion of the court.

      H. Starr, C. Hammond, and O. J. Wright, for plaintiffs.
    • Fox, and N. Wright, and Hodges, for defendant.
   Judge Wood

delivered the opinion of the court:

The motion for a new trial assigns the following ground:

I. That the verdict is against the law as laid down by the court.

2. That it is against the weight of the evidence given in the cause.

*3. That the court erred in admitting the master of the boat as a witness for the plaintiff.

4. Because by the verdict rendered in the suit wherein said A. P. Howell is plaintiff, and the Protection Insurance Company is defendant, upon the same evidence read and adduced in this cause, it is found by the jury that the plaintiff is entitled, as will be insisted, to recover only for a partial loss.; and if so, then the amount of the recovery, in this suit, must be proportionally released or remitted altogether.

5. That it further appears, by the finding of said jury, in the said suit of Howell v. Protection Insurance Company (which finding was subsequent to the verdict between the parties to this suit), that the whole value of the boat, on December 1, 1831, was but eight thousand dollars, and on the day of the alleged loss but six thousand five hundred dollars; and the defendants, thereupon, will insist that the valuation in said policy can be opened up and the actual value fixed by the finding aforesaid.

6. That if said value, as found by said jury, is to obtain in the decision of this cause, then the verdict in this suit is to be modified to meet the state of facts.

The court are asked, if they do not grant a new trial, to reform and modify the verdict, in amount, to suit the facts of the case under the law.

In support of the first and second positions assumed by the counsel for the motion, it is insisted that a loss arising from the negligence of unskillfulness of the captain is not such a loss as charges the underwriter in the ordinary forms of policies unless barratry is insured against; and, as this policy includes no clause against barratry, the underwriters are liable only for losses occasioned by the perils of the river, which skillful and careful men would be subject to. By a reference to the minutes of the judge who presided on the trial, it appears that the law was given to the jury as the counsel for the motion claim that it is. They were instructed, that before the insurer was to be made liable, they must be reasonably satisfied, from the evidence, that the boat was lost by one of the perils insured against. That the defendant was not liable, under this policy, for any act of barratry, because it was' not one of the risks taken. That the plaintiff’s counsel relied solely for a recovery on the hypothesis that the boat was lost by one of the perils of the river; and that, by a peril of the river, they were to understand one of those natural perils *and operations of the elements which occur without the intervention of human agency, which the prudence of man could not foresee nor his strength avert. Such a peril was defined in the books a fortuitous event— an accident which the circumspection, care, and energy of the human intellect would not ordinarily avoid or resist. That it was against extraordinary perils only that the insurers undertook, and for which alone they were responsible; and it is believed that such instruction is sustained' by high authority as the law of the case. Park in his Treatise, Kent in his Commentaries, and Judge Johnson in 3 Peters, fully sustain this principle. The case then went to the jury, upon the question of law, under circumstances as favorable to the defendant as the counsel required.

It is said, however, that the verdict is not supported by the weight of the evidence, under the law, as given to the jury. This is a point much more difficult, at this time, to satisfactorily determine, and must, in some measure, be disposed of from the impression it is recollected that the evidence made on our minds on the trial.

It is sometimes the case, that the belief of the facts sworn to by a witness is much-strengthened or diminished by his appearance and manner of giving testimony- on the trial. The testimony of a single witness may' often obtain credence over twice his number who contradict him, from a knowledge of his character, his appearance and manner, when contrasted with theirs; and although they can not be directly impeached. When such evidence is placed on paper, and the court are to determine where the right of it lies, at a period of several months after it is given, aDd when the countenance of the witness nor his name can. be any longer borne in recollection, we must, in a measure, resort to an impression when everything was fresh in our mind, and be operated on by such consideration.

We are asked, again, carefully to l’eview the testimony, and we have done so. Much of it is in depositions, and full notes were taken of the rest, supposed to be material 'by the judge. The principal testimony for tho plaintiff was the depositions of Briggs, King, Underwood, and tho parol evidence of Edwards and Dove-nor. Briggs was the captain, Edwards the pilot, and Dovenor the engineer of the ’76, and Underwood, the captain of another boat, and, from the evidence, of ^undoubted skill and of good character.

These witnesses were called to prove the loss of the boat, by the perils of the river, and they all agreed substantially, in their relation, when testifying about the same fact. They prove some one, or more of them, that the ’76 left Randolph in the evening of the first December; that the night was exeedingly dark "and rainy; that in coming up tho river, the boat struck on Plumb point; that the shock was severe; that neither shore of tho river could be seen at the time; that the boat was so injured as to leak and make water fast; was run across the river and lay till morning, the wind being very high. The next morning about sunrise, the boat was gotten under way and proceeded up the river. About ten o.’elock, a. m. ora little before, the boat was stopped, wooded, and again proceeded up the river in the usual track of boats navigating the Mississippi, until they struck what they believed to be thewreck of the Daniel Boone. Until this time, the boat was kept clear of water by the pumps. Edwards says he was at the wheel, as pilot of the boat at the time; that he saw the break of the Boone, but not until very close to her. That he was far enough from her to have passed her on tho outside, which he intended to do, but a sudden flaw of wind from the west, struck the stern of the boat, threw it farther into the current, and the starboard bow struck the Boone, raked the cotton from stern to stern, glanced to the shore, struck a stump, broke her bowsprit, was backed off and proceeded on her course. That above Buford’s landing, by the direction of the captain, he tried to run her on to a bar, but she sheered off, and believing she was in imminent danger, he run her with the current, gradually across the Mississippi into a bend of the river, where she finally sunk, and all the witnesses agree that she could not much longer have been kept above water. This witness says he has no doubt he should have cleared the Boone, had the wind not struck the boat as he described. Briggs, Underwood, and King gave a minute history of the accident, and concurred in the main with Edwards. It was also shown, beyond question, that much was done, and all that could be reasonably done, to secure and save the boat, when she finally landed; but that she sunk, and was lost between two and four o’clock, on the morning of December 2, 1832, eight hours at least before the policy expired. These witnesses testify to no act in the management of the boat, to shake their faith in the belief that *the boat was navigated with integrity, care, and skill. This testimony, it seems to us, was amply sufficient, not only to justify, but to demand of the jury a verdict for the plaintiff according to the law, as the court gave it to the jury, so far as we have as yet progressed with the case.

We next come to the defense. It was claimed that the boat was lost by an act of barratry. 2. If not by barratry, by such carelessness as should avoid the po.licy.

Barratry is defined by Park (Park on Marine Insurance, 83, 84), “ to be any act of the master, or mariners, of a criminal nature, or which is grossly negligent, tending to their own benefit, to the prejudice of the owners of the ship, and without their consent, or privity.” Other writers say that, negligence may be so gross as to be evidence of barratry. Time need not be occupied, however, with the first point here made by the defense. It was not sustained on the trial, and upon a subsequent trial in the case of this plaintiff v. Protection Insurance Company, on the same evidence^ it wa.s abandoned; and if seems now to be abandoned by the counsel in this case. They appear to claim only, that the circumstances proved “show a wanton degree of carelessness, which ought to avoid the policy." It was also claimed on the trial, there was an understanding between the plaintiff and his captain, Briggs, and that the boat was lost by design. It is not now asserted that any evidence looked toward sustaining that position, and the court neither now, nor on the trial, had the least impression that any such fact was proved.

Wo are left, then, to inquire, whether the evidence of the defendant, shows such neglect or carelessness in the officers and crew of the boat as exempt the insurers from liability.

Many witnesses and much testimony was g’iven for the defendant on this point. It was claimed that the boat, after striking Plumb Point, was no longer seaworthy; and thaWlhere were convenient places, where the boat could put in and repaired; and that by not doing so, the risk was increased, and the underwriters discharged. The court instructed the jury, that there was, in. . law, in every policy, an implied warranty, that the boat was seaworthy when the policy attached, which meant that the vessel was competent to resist the ordinary attacks of wind and weather, and was competently equipped and manned for the voyage, with a sufficient crew’, and with means to sustain them; with a

*captain of general good character and nautical skill; and if the ship became unseaworthy, during the. voyage, it was the duty of the captain to stop and repair at the first suitable and convenient port; and if he did not, and a subsequent loss ensued, the underwriters would be discharged on the ground of negligence.

Some witnesses testified that the boat might have stopped and repaired between Plumb Point and the wreck of the Boone, but no one stated that there was any place very suitable or convenient, and most of the evidence was that so long as the pumps would keep the boat clear, it was considered safe, and was the usual practice, to keep up the river to a convenient port to repair. To the court, the evidence appeared to justify the captain in continuing on his course.

■ There was much evidence given by the defendant, in relation to the running on the Boone, varying considerably from that given by the plaintiff, and the same may be said of the subsequent conduct of the captain and crew, until the loss of the boat. This evidence, in our view, however, was mostly reconcilable with that given by the plaintiff, and went to the jury, under the instruction that the law made the masters-and mariners of vessels agents for the insured, and if loss was occasioned by their negligence, the law discharges the insurers. 5 Ohio, 436. That the insurers did not insure against the negligence or want of skill of the insured or his agents. Such negligence was not covered by the policy. The court instructed the jury further that it was, nevertheless, no defense that a vessel navigated with ordinary care and skill, and by fortuitous events was placed in a perilous situation, and that the captain and officers, in the exercise of a sound discretion, did not take the proper channel, or use proper means to save the boat when she might have been saved if they acted with fidelity. The officers in such case might exercise a sound discretion and are not answerable for the result of their judgment. Under this instruclion, the court are of opinion that the verdict is sustained by the weight of evidence.

On the trial, it was claimed by the defendant’s counsel that the plaintiff was not the sole owner of the boat, when the policy attached, as he represented himself to the office, and that he misrepresented the value of the boat, she being worth much less than ten thousand dollars. The court instructed the *jury that a contract of insurance was eminently a contract of good faith, which was peculiarly enjoined upon the insured, as he possessed an entire knowledge of all the circumstances which combined to form the contract, and was bound to communicate the facts and objects which were to determine the will of the insurer. It was accordingly an established principle, that a misrepresentation to the underwriter, or concealment of a fact material to the risk, would avoid the policy; that it would avoid it, though the loss arose from a cause unconnected with the misrepresentation ; or even though the misrepresentation, or concealment, happened through mistake, neglect, or accident,, without any fraudulent intention. That the suppression of any such facts, whether by design, or mistake, or negligence, equally rendered the policy void, for the risk run became different from the one assumed in the policy ; that the law required suprema fides in the foundation of the contract; and yet, either party might 'be innocently silent ás to ground open to both for the exercise of their judgments. That a misrepresentation as to who are the owners, the captain or pilot, may come within the operation of the rule.

The evidence was, that one Gossage had been a while captain, and said he was a part owner; but it was proved by Gazzam, who knew the contract, and held the obligation', that Gossage was never part owner, because he did not perform the condition which he was to perform, to wit, to pay the note, before his ownership was to commence, and as to misrepresenting the value of-the boat, it was proved that the boat was owned in Cincinnati, where all the parties -lived, and that one knew the value, probably, about as well as the other. We are confident our impression, at the time was, that the verdict was, on both those points, supported by the evidence, and we still think so. So far, then, as the two first points in the motion are concerned, we arc of opinion that the verdict is sustained by the weight of evidence under the law, as given by the court to the jury.

The next point made by the motion is the admission of the captain of the boat, as a witness for the plaintiff. Did the court err? If so, a new trial ought to be granted.

If this witness is incompetent, it must because he is interested in the event of the trial. Such an interest as will exclude him, says Starkie, must be a present, certain, vested ^interest, and not uncertain or contingent. 2 Stark. 745. A party has such an interest as will disqualify him, when the necessary legal consequences of a verdict will bo to better his situation. 2 Stark. 746.

It is not claimed the witness is interested, unless he can use the verdict of Howell v. the company in his favor. Suppose Howell had failed in a recovery, and had sued this witness for the loss, could Briggs have used the record in evidence on the trial in his favor? Howell’s failure to recover v. the company would neither be proved nor disproved by the record to have been occasioned by the negligence or carelessness of Briggs. It might have been on many other grounds, fraud, misrepresentation, concealment, by the plaintiff himself. Suppose then, in this case, Howell, having recovered, should sue Briggs for any amount he may have lost, not covered by the policy ; the record is the same, it does not show the fact that the boat was skillfully navigated, unless by implication ; but if it did, the record is between other parties, and Briggs could not use it in his favor, unless in mitigation of damages to prevent the plaintiff, so far, from receiving but one satisfaction. But suppose he could use it for this purpose. It is begging the question to say he is interested. Such position assumes that Briggs lost the boat by carelessness, negligence, or some act which makes him guilty and liable, 'when evfery legal presumption is clearly the other way. Until his liability is established for the loss of the boat, he is not incompetent; and as that has never been established, and probably never can be, for the best of reasons, that such liability does not exist, the captain must be competent. He has, at most, but an interest in the question which goes to his credibility only.

The next and fourth point made is, that the verdict rendered in a subsequent suit, when Howell was plaintiff, and the Protection Insurance Company, defendant, upon the same evidence adduced in this cause, entitles the plaintiff to recover only for a partial loss, and that the amount recovered in this suit shouLd be proportionally released, or remitted altogether.

It appears to us such consequences do not follow. The same evidence which shows a partial loss in the one, shows a total loss in the other case. The policy did 'not expire in this case until noon, December 2, 1832, and the boat went down, and was wholly lost, eight hours before.

The fifth reason can not be sustained. The court can not *open up the policy because the jury, in a subsequent case, between other parties, have found that the boat was worth but eight thousand dollars when she was insured for ten thousand dollars ; or that she was worth but six thousand five hundred dollars when lost. This case is on a valued policy; the jury have by their verdict, in substance, found that there was no misrepresentation or concealment by the plaintiff to the office, and the value the parties fixed upon the boat is, in this case, conclusive.

On the sixth reason urged, we will only remark that on full consideration we are of opinion that the verdict of the jury ought not to be modified, nor in any manner interfered with, but that judgment should be entered thereon for the amount found for the plaintiff, and judgment will accordingly be entered for five thousand one hundred and fifty-six dollars and sixty-set en cents, the balance due after deducting the premium noto to May 1, 1835, being the first day of the term.

Judgment for five thousand one hundred and fifty-six dollars and sixty-seven cents.


text:
    Abraham P. Howell v. The Protection Insurance Company.
    If. a vessel insured receive an injury that occasions her total loss, before the expiration of the policy, but is not lost within its existence, the insurers are liable only for the actual injury within the time of the policy. Insurance upon an estimated value, without proof of fraud, concludes the parties to the policy.
    This cause was adjourned from the county of Hamilton, and came before the court upon a motion of the defendant for a new trial, and a motion of the plaintiff for judgment on the special verdict. The suit was instituted on a policy of insurance on the steamboat “ Seventy-six,” dated December 1,1831, and to expire, by its terms on December 1, 1832, at twelve o’clock. This policy insures three thousand dollars on the boat, valued at ten thousand dollars. The policy stipulated that, if a prior insurance was made elsewhere on the boat, it should be indorsed, and the amount to be paid in case of loss, should be such proportion thereof as the sum herein insured is to the whole sum at risk.
    The defense set up at the trial was, that the loss did not happen within the time of the policy, and that it was occasioned by negligence in navigating the boat. At the suggestion of the counsel for the defendant, the jury found the following special verdict:
    The jury find that the defendants did execute the policy of ^insurance described in the declaration, and do further find that A. P. Howell was the sole owner of the steamboat “Seventy-Six,” when she was insured and when lost.
    That no other person owned any part of the steamboat Seventy-Sin, except A. P. Howell, at any time.
    That the value of the steamboat Seventy-Six, at the time she was insured, was eight thousand dollars.
    That the striking of the boat on the wreck of the Daniel Boone was not owing to negligent or unskillful navigation, but one of the casualties of the river.
    The boat received her injury at half past ten or eleven o’clock A. m., on what was supposed to be the wreck of the Daniel Boone, on December 1, 1832.
    That she- land ed between one and two o’clock p. M., where she finally sunk.
    That she sunk between two and four o’clock on the morning of December 2, 1832.
    That the value of the boat when she struck the Daniel Boone was sixty-five hundred dollars.
    That the steamboat Seventy-Six was not damaged to half the value of the boat at twelve o’clock, but at the same time, that her striking the wreck of the Daniel Boone occasioned her loss finally.
    That the amount of damage was three thousand dollars, at the time she struck the Daniel Boone.
    That they can not tell the amount saved by the evidence we have, but guess three hundred dollars or more might have been saved.
    That the boat might have been run on a bar, or to a landing, and probably have saved the engine and furniture, but that the officers did what they thought best for the safety of the boat.
    That she had a full crew.
    That the holes in her did not make her unworthy.
    That there were holes in her when insured.
    That there was a hole made in her at Louisville, when repairing.
    . That the holes in her did not increase the risk materially.
    And if, upon this finding, the court is of opinion the law is with the plaintiff, we find for the plaintiff and assess him such damages as in law he is entitled to on the facts. But if the court is of opinion, that- on these facts the law is with the defendants, then the jury find for the defendants.
    ' *The plaintiff’s counsel, moved for judgment on the verdict for the whole sum insured.
    The defendants’ counsel moved for a new trial, on the ground that the finding of the jury was against the weight of evidence given in the cause. And, also, on the ground that the court erred in charging the jury, that, if the injury that occasioned the loss occurred within the time of the policy, the insurers were liable for an average loss, although the total loss did not happen until after the policy had expired.
    Eox, for the defendant,
    argued at large the motion for a new trial, on the weight of evidence.
    Wright and Walker, on the same side,
    insisted, that as the loss was found not to have happened, equal to one-half the value, until after the expiration of the policy, the defendants were not liable at all. They cited 1 Term, 187, 252; 3 Kent’s Com. 308, 2 ed.; 1 Phil. Ins. 283; Peters v. Phoenix Ins. Co., 3 Serg. & Rawle, 25.
    N. Wright and Hodges, on the same side:
    All the counsel for the defendant maintained that upon the special verdict, the plaintiff could only recover an average of three-tenths of the actual loss. This actual loss, within the time of 1 policy, was less than one-half the estimated value, being as three to ten, and this average would give only nine hundred dollars.
    H. Starr, Hammond, and C. J. Wright, for plaintiff.
   Judge Wood

delivered the opinion of the court:

This cause was tried upon the same evidence, and the same charges to the jury, on which the case of Howell v. The Cincinnati Insurance Company whs tried and decided. We have considered the two cases together, and the opinion, in the latter case, is decisive of the motion for a new trial in this, on the ground that the verdict is against the weight of evidence.

The jury find that the injury that occasioned the loss occurred within the time of the policy, and that its extent, at the time of its occurrence, was three thousand dollars. The law seems to be well settled, that if a ship receive her death wound *before, and is not lost until after the policy expires, the insurer is not liable. Park, 433; 1 Term, 260. Justice Lawrence says it is of little importance which way the rule is, but it should be certain and he holds it well settled as stated.

There was then but a partial loss within the time of the policy That partial loss the jury find was three thousand dollars, exactly the sum insured, and less than half the sum at risk, which is ten thousand dollars. The jury find different values of the boat; but that finding does not affect the case. The parties agreed upon a value, and thus made an estimated policy, which is not to be opened where there is no proof of fraud. This estimate concludes the parties in fixing the average loss. This average is three-tenths of three thousand dollars, amounting to nine hundred dollars. The deductions agreed upon reduce this sum to six hundred and eighty-eight dollars and fifty cents, for which judgment is to be entered.