Dupuis v. Thompson-Opinion of Court.

tions taken to the action of the court during the progress of the trial. We cannot consider here the objection that the verdict was contrary to law, or to the evidence, or to the instructions of the court, or any objection to the sufficiency or weight of the evidence, or that the damages awarded were excessive, because the only remedy for these matters was the motion for new trial, which was not heard by the court, and which is not here for review. 9 Pet., 483; 3 Wall., 240.

What are these exceptions? The first exception of the defendant is to the ruling of the court to the effect that after a deed has been read to the jury without objection, and the party offering it in evidence had closed his testimony, it was too late to insist upon formal proof of its execution. This ruling was correct. By not requiring proof of its execution when the deed was offered, the party waived any right which he may have had. 5 Fla., 268, 284; 17 Mich., 48; 4 Dall., 424; 30 Vt., 90.

The next exception is to the testimony of the plaintiff as to the rental value of the land. It was objected to upon the ground that it was conjectural. He testified that "he thought the yearly rents of said land were reasonably worth one dollar per acre, and estimated the cleared land at 500 acres." This exception is not insisted upon in argument here, and no attention is given the subject in the briefs of counsel. This testimony is not as accurate as would have been that of a surveyor who had, by actual measurement, determined the amount of land, but we know of no rule of law which renders it inadmissible because it is not so absolutely certain and accurate. It was pertinent and relevant to the questions involved in the issue, and was properly admitted.

The next exception is a general exception to the charge of the court. This charge embraced four distinct propositions, and this general exception is not available if any one

Dupuis v. Thompson-Opinion of Court.

of them is correct. 14 Fla., 492; 1 Black., 209; 3 Seld., 273; 2 Ker., 213. One of these instructions is to the effect that if the defendant failed to insist upon proof of the execution of a deed, when it was offered and received in evidence, he could not subsequently object on the ground that its execution had not been proved. This instruction was certainly correct, and for this reason this general exception must fail. The next exception disclosed by the record was the refusal of the court to give the portion of the following charge which is embraced in parenthesis: "If the plaintiff fails to prove the advertisement of sale as required by law, which it is incumbent on him to prove as a link in his chain of title, he fails to make out his title, and the jury should find for the defendant when the plaintiff does not prove the advertisement. (The exhibition of the deed is not sufficient; the recitals in the deed must be proved to the satisfaction of the jury, and the advertisement is necessary to plaintiff's title, and must be proved by evidence other than the recital in the deed."

The court very properly refused to give this instruction. There was in evidence here the judgments, the executions, the return of the sheriff, the levies and the deed of the sheriff reciting due advertisement and sale. This was more than sufficient. In sales under execution, under the circumstances recited, it is not necessary to prove the advertise

The presumption of law is that the sheriff did his duty in this respect when acting under a general power. I Tenn. 348; 3 Yerg., 308; 53 Penn. State, 302; 3 Jones (N. C.) Law, 135; 3 Mon., 271; 2 G. & J., 359; 1 Phil. on Ev., 177; 2 ib., 429; 6 Ind., 80-1; 2 Ind., 465; 5 Hill, 228; 3 Minn., 277; 5 Maine, 333; 22 Barb., 656. There is a well settled difference between the case of a sale by a sheriff under a judgment and execution, by virtue of a general power vested in the officer to sell under fi. fa., and a sale under a special power to sell in particular cases. The case cited by

Dupuis v. Thompson-Opinion of Court.

counsel (7 Conn., 88,) is of the last character, and is not applicable here. Presumptions do operate as to acts necessary in the execution of a general power of the character here in question.

This disposes of all the questions which this record, according to the rules of practice controlling the subject, presents for our consideration.

It was insisted in argument that the plaintiff in this action was a purchaser of this real estate at an execution sale against a defendant in execution, with actual notice by the purchaser at the time of the judgment that the defendant in execution had given a mortgage upon the property to the lessor of the defendant in this action, and that defendant claimed through a sale under the mortgage of which the plaintiff thus had notice. In other words, that the plaintiff was a purchaser at an execution sale with notice of a mortgage by defendant in execution prior to the judgment, under which he purchased, and that defendant here claims under such mortgage. It was also insisted that plaintiff, who claims title through an execution sale, failed to show that the defendant in execution had any title or interest in the property sold, and that such proof was necessary, although both parties claimed through the defendant in execution.

Neither of these questions are presented by the records, as the motion for new trial cannot be considered for the reasons already stated. For want of notice the Circuit Court refused to consider it, and its action was in accordance with the plain rule controlling the subject. The only question here as to that motion is, did the court properly refuse to hear it? Having determined that, its action in that respect was in conformity to the rule; that is an end of the

matter.

Judgment is affirmed.

Nickels and Gautier v. Mooring-Statement of Case.

WILLIAM NICKELS AND THOMAS N. GAUTIER, PLAINTIFFS

AND APPELLANTS, VS. EDWIN W. MOORING, Defendant AND APPELLEE.

1. The Court will not set aside the verdict of a jury upon questions of fact, where there is a conflict of evidence, unless it may well be assumed from the circumstances of the case that some improper influence has been brought to bear to affect such jury contrary to the right.

2. The Court will not reverse a judgment simply for the reason that immaterial evidence was introduced on the trial. It must appear that such evidence was legally prejudicial to the parties' rights, or calculated to have an injurious influence upon the minds of the jury, and to mislead them in their endeavors to arrive at a correct conclusion.

3. Where there is no agreement to the contrary, and no fraud or collusion, each copartner has the right to settle demands due to, and give receipts to bind, the firm, even after the dissolution of such partner. ship.

4. It is not necessary that the court in charging the jury, as requested by counsel, should use the language of the counsel in announcing legal propositions; and when the Court has already instructed the jury upon a question, it is not error to refuse to repeat the matter so charged, however correct the proposition may be.

Appeal from the Circuit Court for Jackson county.

This is an action brought under the Code of Procedure by the plaintiffs, who had formerly been partners, to recover upon an open account for goods sold and delivered, and for money advanced for and loaned, while such partners, to the defendant. The defendant answered, pleading several defences, and among them payment by William Nickels, one of the plaintiffs, with money of defendant; and as another defence, that the account sued on was transferred and belonged to Nickels before it was paid as alleged. Afterwards the defendant filed a supplemental answer to the effect that since the filing of the original answer he had made full payment of all demands of plaintiffs against him, by giving to

Nickels and Gautier v. Mooring-Statement of Case.

Gautier a check drawn by VanBeil & Fisk, on the First National Bank of New York, and that in consideration thereof Gautier receipted in behalf of said plaintiffs in full to defendant for all demands of plaintiffs. Upon the trial the plaintiffs contended that the payment with Gautier was not in full settlement of all demands, and that it was made and received in fraud of said partnership, and in collusion and fraud between Gautier and Mooring; and that Nickels, at the time of such payment, was the only one authorized to settle the business of said partnership and receive payment of the debts due it, and that Mooring knew it.

There was much conflict in the testimony upon important questions involved in the issues. The jury brought in a verdict for the defendant, and the plaintiffs moved for a new trial upon the ground that the verdict was against the evidence and contrary to law, and that the court erred in admitting testimony which was not pertinent to the issues, but calculated to mislead the jury, and in its charge to the jury, and in refusing to charge the jury as requested by plaintiffs, and upon the ground that the jury gave consideration and weight to an admission of the plaintiff, Nickels, made to an attorney of the defendant as to the right of Gautier to make the settlement set up in the supplemental answer, which admission Nickels testified to have made in ignorance of his legal rights.

In support of the last ground of the motion the plaintiffs introduced two affidavits: one of Nickels, to the effect that "Daniel L. McKinnon, Esq., attorney for defendant,came to deponent and told him he had a receipt in full from Gautier for the account of Mooring; he was taken by surprise, as it was distinctly agreed by and between said Gautier and himself that he, deponent, was to be the sole liquidating partner; and this agreement was published in the Marianna Courier for several months, and he is satisfied that said Mooring knew of this agreement; he remarked to said Mc