Allison v. M'Cune. Dec. Term, IN BANK. a member, &c., in good standing, &c., or he shows no right to continue to exercise the office, though his qualification and warrant may have been sufficient in the beginning. 1846. The demurrer to the answer is sustained, and the defendant may have leave to amend his answer. Charles Fox, and Wrights & Miner, for the Relator. Henry Starr, for the Defendant. HUGH ALLISON vs. JOHN MCCUNE. A special action on the case lies against one who lessens the mortgage security of another, and damages may be recovered to the extent of any actual injury sustained by such act. THIS is a SPECIAL ACTION ON THE CASE, reserved in WASHINGTON County. The action was originally brought in the Court of Common Pleas of Washington county, and came into the Supreme Court by an appeal. In the Supreme Court, a trial was had to a jury, at the March term, 1845, and a verdict rendered for the plaintiff for six hundred dollars, subject to the opinion of the Court on the law of the case, arising on an agreed statement of the facts which accompanies the files, and by the consent of counsel, is submitted as the evidence in the suit. The declaration contains three counts. The first describes a messuage in the possession of Andrew Allison, who had before mortgaged it to the plaintiff for $4,000, and avers that the defendant, McCune, had broken down and destroyed a certain mill erected on the mortgaged premises, and carried away the machinery and fixture of the value of $2,000, and converted them to his own use, whereby the messuage was Allison v. M'Cune. rendered of less value, and the mortgage security of the plain- IN BANK. tiff impaired to his damage, &c. The second count describes the plaintiff as a reversioner, and complains of the same acts, as an injury to his reversionary interest. There is, also, a third count, in trover, for the conversion by the defendant of certain milling utensils, machinery, &c., particularly described, to the damage, &c. To this declaration, the defendant pleaded the general issue of not guilty, and the evidence now to be applied to the issue, in disposing of the verdict of the jury, is found in the agreed statement of facts, and upon which, under the issue, the law arises. It is, in substance, as follows: On the trial of this case it was proved that on the 11th of March, 1841, Andrew Allison being in possession of and residing on a farm in Washington county, mortgaged it (100 acres) to Hugh Allison, the plaintiff, to secure the payment of a promissory note from Andrew to Hugh, of the same date as the mortgage, for the sum of $4000; which mortgage was recorded May 11th, 1841. The note and mortgage were given to indemnify Hugh for becoming security for Andrew, before that time, to sundry persons. The mortgage described the land by metes and bounds, and "to have and to hold the granted premises, with all appurtenances thereof, to the said Hugh Allison, his heirs and assigns," with covenants of warranty. Proviso for the payment of the note of $4000. At the time of executing the mortgage there was a steam grist and saw mill and distillery on the land described. The grist mill used principally in grinding for the distillery. Andrew remained in possession and use of the land described in the mortgage, until after the commencement of this suit, exercising ownership as mortgagors usually do. On the 18th of May, 1842, Hugh filed his bill in the Common Pleas of Washington county, praying a subpoena against Andrew-that he be compelled to answer that an account might be taken of what was due Hugh for his principal and interest Dec. Term, 1846. Allison v. M'Cune. Dec. Term, 1846. IN BANK. due on the mortgage—that the mortgaged premises be sold, and the proceeds thereof applied to satisfaction of such principal and interest-and for further relief. Andrew was served with process but did not answer, and at the August term of the Court, (22d August,) 1842, a decree was entered pro confesso, against Andrew for $4,334 and costs, to be paid in ten days; and that in default thereof the Master Commissioner proceed to sell the mortgaged premises as upon judgment at law and bring the money arising therefrom into court to abide the order of court. On the 22d of August, 1842, an order was issued to the master who appraised the premises, and offered but did not sell for want of bidders. On the 13th December, 1842, a second order issued on which the property was offered by the master on the 6th of March, 1843, and bid off by Hugh at two-thirds the appraised value, $1,334; but not having advanced the costs, the master returned the fact and no sale for want of bidders. April 4, 1844, a third order was issued, and May 4th the mortgaged property was sold by the master to John Mason for $1,334, being twothirds the appraised value; and at the May term, 1844, of the Court of Common Pleas the sale was confirmed, deed ordered, and money directed to abide the order of Court on the hearing of the bill of one Park, a judgment creditor of Andrew Allison and Hugh Allison as security. Hugh had paid about $60 on his liability as security for Andrew, and some Attorney's fees. Andrew's property is exhausted, and Hugh's also, unless a sale of some of his land is set aside as fraudulent, for which a bill is pending by creditors of Andrew and Hugh as security. Hugh's liability as security for Andrew did not amount to the sum of the mortgage note; but his liability exceeds the amount of the proceeds of the mortgaged premises, and the amount of the verdict in the present action. Andrew Allison was justly indebted to the defendant, M'Cune, for which Hugh was not bound, and the defendant, M'Cune, obtained a judgment against Andrew Allison in the Court of Common Pleas of Morgan county, Feb. 28, 1842, for $386.97 debt, Allison v. M'Cune. Dec. Term, 1846. $7.05 costs. On this judgment an execution was issued to IN BANK. the sheriff of Washington county, dated March 4, 1842, which the sheriff levied, April 1, 1842, on the steam engine and fixtures, the running gear of the grist and saw mill and still worm and tubs of the distillery, by direction of the defendant, M'Cune, and before the return of the writ, on the 21st of May, the sheriff, by direction of the defendant, M'Cune, went to the property and scheduled what had been levied on, and removed the same off the mortgaged premises. The stills, tubs, &c., which had been before that time sold on a constable's execution against Andrew Allison in some other case, were not taken. The steam boiler was set in a furnace of stone and brick on the top of the ground. The engine was also set in timbers laid on raised walls on the top of the ground, and the machinery of both grist and saw mill was attached by coupling shafts, drivers and straps. The buildings for the grist and saw mills were frames set on the surface and against a bank, on slight foundations of stone and blocks. In severing the property levied on, the furnace for the boilers which was outside the millhouse was removed on the top, leaving the foundation above the ground, and all the other property was taken without injury to the buildings. The writ was returned by defendant's order without sale, and on the 11th of August, 1842, a vendi. from the Common Pleas of Morgan county was directed to the sheriff of Washington county, to sell the above property so levied and removed. By virtue of this last execution, the sheriff of Washington county, after giving legal notice of the time and place, proceeded to sell the property at public sale, on the 31st of August, 1842; at which time the plaintiff, Hugh Allison, appeared and gave notice that he claimed the property, and forbid the sale. The defendant, M'Cune, indemnified the sheriff, and the property was sold to M'Cune and others, who were the highest bidders, in parcels for sums which, in the whole, amounted to $114. Hugh Allison, the plaintiff, at no time after the execution of Allison v. M'Cune, IN BANK. the mortgage, before this sale, having had actual possession of the mortgaged premises, or the property sold as above. Dec. Term, 1846. If, upon the above facts, the Court is of opinion that the plaintiff is entitled to recover, then judgment is to be entered on the verdict if otherwise, the verdict is to be set aside and a nonsuit entered. C. B. Goddard, for Plaintiff. I. Parish, for Defendant. No arguments were furnished to the Reporter. WOOD, C. J. It is urged by the counsel for the defendant, that this action is not sustainable by any known and well settled principle of law. The absence of direct, or, at least, analagous authority, it is certain, with a careful judge, tends to create uncertainty and doubt, not unfrequently, whether a position assumed as the basis of a right to recover can be sustained. But cases do, however, often occur, in the multifarious relations and transactions of mankind, when it is, by no means, an insuperable objection to the remedy sought to be obtained, that there is no direct adjudication in point. Rules of law must sometimes, of necessity, be extended to suit the local condition and meet the exigencies of every people. The common law of England, imported by our ancestors, as is said, is in force in Ohio, but it rests, nevertheless, in the sound discretion of the Court to say how far it is applicable to our condition. It is one of the maxims of the common law, that for every injury a remedy is given, and when the justice of a cause stares me fully in the face, I will say, with Mr. Justice Eyre, that "I do not feel myself pleased to be knocked down with formal objections." If there is no known mode of redress, it is the duty of the Court, in such case, to open some new channel through which a remedy may be obtained. But I am not aware that the plaintiff, in the case at bar, is driven |