Opinion of the court, by
The practice of the court requires that, when a cause is reserved for decision at the special session, a statement shall be made in writing, and filed with the papers in the cause, ’’’showing the particular point or points to be litigated and determined. If the question reserved, arises upon the sufficiency of the pleading, such statement is unnecessary. Nor is it required in chancery proceedings, where the evidence is in writing, and with the pleading submitted to the court. But where the court is supposed to have erred in the admission or rejection of evidence in the course of a jury trial, which supposed error is made the foundation of a motion for a new trial; or where the court, in the course of such trial, reserves questions for subsequent consideration, such state-' ment is peculiarly necessary. Without it, it may many times bo difficult to arrive at a satisfactory conclusion. The statemenl should be drawn up by the counsel excepting to the opinion of thvi court, submitted to and approved by the court, and filed away bj the clerk. This having been done, no room is left for subsequent altercation. The propriety and necessity of this course of prac tice is clearly evinced in the present case. No statement in writ ing was made, consequently the counsel differ as to the precise question reserved. Contrary statements are exhibited with a view to satisfy the court as to this point. From our knowledge of the gentlemen concerned, we have not the least doubt but that they state the circumstances as they understood them when these circumstances transpired, but it is manifest there must have been some misapprehension.
The ease now comes before the court on motion for a new trial. The motion is grounded upon a supposed error in the court upon, the circuit, in the rejection of certain evidence offered by the de
On the trial of the cause to the jury, the defendant offered in evidence a deed to himself, from the administrators of Israel Ludlow, purporting to convey the premises in controversy. The deed bears date December 21, 1810, and recites the fact that the sale was made ,on the 13th day of the same month. At the same time the order of sale of December 17, 1810, was offered in evidence to show the power of the administrators to sell. *The recital of the deed states that the sale was made in pursuance of this order. The evidence thus offered was objected to by the counsel for the plaintiff, the objection sustained, and the evidence overruled. In rejecting this evidence the court decided correctly, unless the doctrine can be maintained that an order of the court of common pleas, authorizing an administrator to sell the real estate of his intestate, will have so far a retrospective operation as to legalize a sale made prior in point of time to the order itself. An attempt will hardly be made to sustain a principle so absurd. In fact, I do not understand that there is any complaint in consequence of the rejection by the court of this order.
The defendant next offered in evidence the order made by the court of common pleas, at the May term, 1804. This evidence was objected to for a variety of reasons. It was urged that inasmuch as it appeared from the recital in the deed, that the administrators, in making the sale, and the defendant in purchasing, looked to the order of 1810, he should be concluded by it, and could not show any other order conferring authority upon the administrators to sell. It was further urged that the order of May, 1804, did not embrace the premises in dispute, and if it did, then that that order ceased to operate from and after the repeal of the law of 1795, “for the settlement of intestates’ estates.” The court sustained the objection, and overruled the evidence. In deciding the question, an opinion was expressed that the defendant, by the recital in his deed, must be precluded from giving in evidence any other order than that of December, 1810.
Counsel for the defendant contend, that the case was reserved, not so much for the purpose of determining whether this evidence was properly rejected, as for the purpose of 'determining whether
We come now to the consideration of the question, whether the ■court mistook the law in refusing to admit the order of May, 1804, in evidence. That order is in these words: “ The administrators of the estate of Israel Ludlow, deceased, exhibit an account current, and pray the court to issue an order for the sale of the real property to defray the debts due from the estate, etc. John Ludlow and James Findlay sworn in court. The court order so much of the real property sold as will meet the said demands, except the farm qnd improved lands near Cincinnati, together with the house and lots in Cincinnati.” In offering this evidence, the defendant could have no other object in view, than to sustain his title, by showing an authority in the administrators to make sale of the premises in dispute. The administrators might have had authority to sell all the real property of the intestate, with the .exception of this identical land, and it could avail them nothing. The object to be effected by the sale is expressed in the order. It was to enable the administrators to pay the debts due from the •estate. It is true the amount of those debts is not stated, yet the .order is general to sell “so much of the real property” as will
The same construction was put upon this order in the case of the Heirs of Israel Ludlow v. C. and J. Johnston, 3 Ohio, 578. That case was repeatedly ar-gued, having been before the court for years. Every point necessary to decide the case was fully considered, and after much deliberation determined; and the decision upon each point fully concurred in by all the members of the court present when the case was finally disposed of. It may not
*This construction being put upon the order of May, 1804, it is necessary to consider whether that order would be competent evidence to prove, or as conducing to prove, an authority in the administrators to sell a lot or “lots in,” or “the farm and improved lands near Cincinnati.” It is ai’gued that although the order might have been insufficient to sustain the defendant’s title, still it was competent evidence. Why? Because it is said there might by possibility have been some other evidence offered to show its relevancy. Such 'other evidence was not offered, and not having been offered, we are not to presume its existence; the legitimate presumption is, that it does not exist. At any rate, the court must decide upon what was, not upon what might have been offered. Testimony irrelevant to the matter in issue is incompetent. Proof of power to sell one tract of land, no more conduces to prove a power'to sell another than proof of the sale of one tract conduces to prove the sale of another. The court from which the order in question emanated, could not confer a greater authority upon the administrators of Ludlow, to dispose of his real estate, than what Ludlow himself might have conferred, in his lifetime, upon an agent, by letter of attorney. No one will contend that an authority given to an agent to sell one tract of land authorizes him to sell another.- Suppose Israel Ludlow in his lifetime, owning lands in the counties of Warren and Hamilton, had made an attorney authorizing him to sell his lands in Hamilton. The attorney, in virtue of this order, would most assuredly have no right to interfere with the lands in Warren. But suppose he had sold lands in Warren, and controversy should now arise between the heirs of Ludlow and the purchaser. Will it be said that the power of attorney authorizing the sale of the Hamilton lands would be competent evidence to prove, or as conducing to prove, an authority to sell the lands in Warren, and consequently to sustain the title of the purchaser? To my mind it is most clear it would not. So far as respects the Warren lands, the power of attorney would be a dead letter. It would be the same as if no such power had ever been made. It would have no relevancy to the matter in controversy, of course would be incompetent evidence.
The same principle must apply to the order of May, 1804. In virtue of that order, the administrators of Ludlow claimed the authority to sell, and did sell, certain lands. In that order no allusion is made to “the farm and improved lands near Cincinnati,” nor to the “lots in Cincinnati,” any further than to exempt them from sale. And it would be strange that this order should be received in evidence to prove an authority to do an act which it expressly provided should not be done. If, then, .the premises in controversy are within the exception contained in the order, as construed by the court, the evidence was properly overruled, being irrelevant to the matter in dispute.
Whether the premises are within the exception remains to be considered. And here it may not bo improper to remark that in determining whether the court erred in rejecting the evidence, we must take the case as.then presented, without reference to the evidence said to have been newly discovered. Most, if not all the towns which have been laid out in this state, have been surveyed into in and out-lots, both, however, being considered as constituting parts of the town. On December 6, 1800, the general assembly of the territory passed a law “providing for recording town plats,” requiring, among other things, that the map or plat to be recorded, should “ set forth and describe ” the lots intended for sale by their progressive numbers, etc. In practicing under this law, it has ever been the custom to “set forth and describe” both in and out-lots upon the recorded plat. In pursuance of the provisions of this law, the town plat of Cincinnati was recorded. At an early period, town property was withdrawn from taxation for 3tate purposes, and subjected to taxation for county purposes. In levying the county tax, both in and out-lots were by statute made liable. All these circumstances go to show that, by our policy, out as well as in-lots have been, and are to be, considered as lots in town. An authority to sell lots in town would authorize the sale of either kind. An exemption of lots in town from sale would exempt either kind. When this cause was in trial to the jury, the recorded plat of Cincinnati was before the court. Upon that plat
Whether the opinion incidentally expressed by the court, as to. the effect of the recital in the defendant’s deed, was or was not correct, we do not undertake to determine. It is unnecessary inasmuch, as for the reasons already assigned, the evidence was properly rejected. Nor shall we express an opinion as to the effect of the repeal of the law of 1795, upon the order of 1804. This presents an important question, and as we are informed that much property depends upon its determination, we are the more anxious to hear every argument which can be urged, before it shall finally be decided.
I now come to the consideration of the motion as founded upon the discoveiy of new and material evidence. Motions for new trials are addressed to the discretion' of the court, and unless founded upon some supposed error of the court, will be granted or refused, as the justice of the case may seem to require. A jury may decide against strict law, or against the weight of evidence, and still substantial justice may have been done. Under such circumstances a court would be unwilling to disturb their verdict. When the motion is grounded upon the discovery of new and material evidence, our practice requires that newly discovered evidence should be disclosed. This is required that the court may be enabled to form an opinion, whether, by the introduction of such evidence, a different verdict ought to be obtained. In considering the motion, the court will not inquire, whether, taking the newly discovered evidence in connection with that exhibited on the trial, a jury might be' induced to give a different verdict, but whether the legitimate effect of such evidence would be to require a different verdict. In the trial of issues in fact, the court judge of *the competency, the jury of the credibility and effect of testimony. But after verdict, when the motion for a new trial is considered, the court must judge
The motion is overruled, and judgment must be entered on the verdict.