arrangement or understanding with any man or men now living or dead. Whoever denies any one of these statements, or asserts the contrary, is a calumniator and a liar. Certain leading Mormons, and their hired henchmen, long since learned that they could neither bribe, flatter, nor intimidate me. Now they are making a desperate, if not the last, effort to destroy me. Misled by my silence and forbearance, they no longer play the part of sneak-thief, but have assumed the role of the highwayman. Let them come on." Judge McKean is very evidently not afraid of a congressional investigation.

NOTE OF CASE.

In Swett v. Cutts, 50 N. H. 439, it was held that an inferior heritor might, in the proper use and for the improvement of his land, obstruct the flow of surface water from the land of a superior heritor, and that the latter could not acquire, by prescription, the right to have such water flow over the lower land. Surface waters not gathered into streams are governed by the same rules of law applied to percolating

waters. The doctrine of the civil law as to the latter was thus stated and approved by Tindal, C. J., in the leading case of Acton v. Blundell, 12 Mees. & Wels. 324: "If a man digs a well in his own field and thereby drains his neighbor's, he may do so, unless he does it maliciously," and this doctrine has been followed by the current of authorities, both English and American. Chasemore v. Richards, 7 H. L. Cas. 349; Galgay v. Great Southern Railway, 4 Ir. C. L. 456; Stainton v. Woolrych, 23 Beav. 225; Queen v. Metropolitan Board of Works, 3 B. & S. 710; Greenleaf v. Francis, 18 Pick. 117; Roath v. Driscoll, 20 Conn. 533; Chatfield v. Wilson, 28 Vt. 358; Ellis v. Duncan, 21 Barb. 230, which was affirmed by the court of appeals in 1864, but not reported; Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195; Goodale v. Tuttle, 29 id. 459; Wheatley v. Baugh, 25 Penn. St. 528; Halde v. Bruckhardt, 45 id. 518; Parker v. Boston & Maine R. R., 3 Cush. 107; Mosier v. Caldwell, 7 Nevada, 363. But the owner of land cannot cut off the supply of percolating water from his neighbor's spring or well, through malice and without justifiable purpose. Greenleaf v. Francis, 18 Pick. 117; Wheatley v. Baugh, 25 Penn. St. 528; Roath v. Driscoll, 20 Conn. 533. But see to the contrary, Chatfield v. Wilson, 28 Vt. 49. The doctrine of percolating waters does not apply to subterranean waters having certain definite channels. They are governed by the same rule as surface streams. Smith v. Adams, 6 Paige, 435; Roath v. Driscoll, supra. The doctrine of prescription has no application to percolating waters. Chasemore v. Richards, 2 H. & N. 186; 5 id. 982; Ingraham v. Hutchinson, 2 Conn. 584; Frasier v. Brown, 12 Ohio, 311; Wheatley v. Baugh, 25 Penn. St. 528; Roath v. Driscoll, 20 Conn. 533.

As to surface waters, while the superior heritor has

a natural easement to have the water which falls upon his lands flow off the same upon the lands of an. adjoining heritor below, he cannot, by a system of drainage, collect the water and precipitate it upon the land below. Smith v. Kenrick, 7 C. B. 515; Dickinson v. City of Worcester, 7 Allen, 19; Butler v. Peck, 16 Ohio St. 334; Miller v. Lanbach, 47 Penn. 154. But the inferior heritor has no absolute right to the surface water from the land of the upper heritor unless it is gathered into a well-defined channel. Luther v. Winnisimmet Co., 9 Cush. 174; Ashley v. Wolcott, 11 id. 192. Denio, C. J., says, in Goodale v. Tuttle, 29 N. Y. 459: "In respect to the running off of surface water, caused by rain or snow, I know of no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil,

for its amelioration and his own advantage, because his neighbor's land is so situated as to be inconvenienced by it." And to the same effect is Bowlsby v. Speer, 2 Vroom, 351. And this is equally applicable either to the superior or inferior heritor. The inferior of the surface water from the upper land. Parks v. heritor may, by improving his land, obstruct the flow Newburyport, 10 Gray, 29; Dickinson v. Worcester, 7 Allen, 19; Hoyt v. Hudson, 27 Wis. 656. And the passage of surface water over land for twenty years will not create a prescription. Ib. Owners may drain their own land into a stream running through it, and if inferior heritors or mill owners are thereby injured, it is damnum absque injuria. Miller v. Lanbach, 47 Penn. 154; Waffle v. N. Y. Central R. R. Co., 58 Barb. 413; Rawstron v. Taylor, 11 Exch. 269. The owner of land having a well upon it has the right to clear out and tube the well and if he does not change the natural course of the outlet, he will not be liable creased flow of water. Waffle v. Porter, 61 Barb. 130. for injuries occasioned to a lower owner by an in

4. The omission of a court, in its charge to the jury, to define or explain doubtful words or phrases contained in a statute upon which the action is founded, does not constitute a ground of reversal, unless such definition or explanation was requested by the party claiming to have been prejudiced thereby.

5. In actions under said section, in which the plaintiff shows a right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual malice or other special circumstances of aggravation.

6. The verdict in such cases should not be set aside on the ground that the damages are excessive, unless the court is satisfied that the jury abused its discretion.

7. Nor will the verdict be disturbed because the court in its charge stated general propositions of law not involved in the issue, if it appears from the whole charge that the jury could not have been misled thereby.

Error to the court of common pleas of Preble county. Reserved in district court.

Sarah Hosier, plaintiff below, filed second amended petition against John Schneider, the defendant below, as follows:

"The plaintiff, during the three years immediately preceding and including the 18th day of March, A. D. 1865, was the wife of one Zimri Hosier, on whose good conduct, frugality and personal labor she was dependent for the support of herself and their seven minor children; for the proper culture and moral training of the latter; and, to a good extent, for her own position in society."

"The said Zimri Hosier, when not intoxicated or laboring under the effects of intoxication, was an industrious laboring man, and regularly earned and received for his labor $1.50 a day, applicable to the support of themselves and their said family, and which said sum was so applied by him accordingly.* But the said Zimri Hosier was in the habit of getting intoxicated, and the defendant, well knowing the same, at divers and sundry times, on divers days and nights, throughout and during the said entire term of three years, up to and on or about the 12th day of the said month of March, 1865, at the village of Lewisburgh, in the county of Preble, unlawfully, willfully and maliciously sold to the said Zimri Hosier, intoxicating liquors, thereby causing him thus frequently to get intoxicated, in consequence of which, he, as often, became and was, in addition thereto, infirm and diseased, and, for times, varying from and to several days, and aggregating within the said term of three years, not less than nine months, or the average of one-fourth part of his whole time, incapable of laboring; by reason whereof, she, as his wife, was compelled to and did take charge of and provide for him, for and during the said aggregate time of nine months, until and on the said 18th day of March, A. D., 1865, when said series of intoxications and their sad effects culminated in his death: leaving her wearied with the labor of providing him with necessary food and medicine, the attention and care bestowed upon him; and burdened with the further expense of his funeral rites and burial, and of the rearing, maintenance and education of their said minor children, by her own unaided labor; whereby she was, and is injured in her person, her property, and her means of support, to the damage of the plaintiff, five thousand dollars, for which she prays judgment."

The defendant moved the court to compel the plaintiff to make her second amended petition more specific

and certain in the following particulars: 1. By stating the nature of the injuries upon which the plaintiff seeks to recover; whether it be to her person or her property, or means of support. If to her person, in what manner and by what means. If to her property, what property, and how injured. If to her means of support, the amount thereof, and in what particulars her means of support were injured, and the special damage sustained by each. If any damage is claimed for causing the death of said Zimri Hosier, let such claim be distinctly made, and the damages claimed on account thereof. 2. By stating the time of the sales of liquor, and the quantity sold at each, and the damages resulting to her person, her property, or means of support by reason of any such sales.

On the hearing of this motion, the court found the petition to be uncertain in not stating that the money earned by said Zimri Hosier was applied to the support of his wife, and in that particular sustained the motion; and, as to the remainder of the petition, overruled the motion, and defendant excepted.

Thereupon the plaintiff obtained leave of the court to amend her petition at bar by inserting the following words at the end of the second paragraph of the petition, to wit: "and which said sum was by him so applied accordingly." To this the defendant excepted. All which appears in a journal entry.

Thereupon the defendant demurred to the second amended petition for the following causes:

1. There are several causes of action improperly joined in the petition.

2. The plaintiff has not legal capacity to sue.

3. The petition does not state facts suflicient to constitute a cause of action.

This demurrer was overruled, and exception was taken by the defendant.

Thereupon he filed an answer which:

1. Denies, that on or about the 12th of March, 1865, or at any other time, he unlawfully, willfully and maliciously sold to said Zimri Hosier intoxicating liquors, thereby causing him to get intoxicated.

2. Denies that the plaintiff's husband was at any time prevented or hindered from following his usual avocation, or laboring, by reason of any sales of liquors made to him by the defendant.

3. Denies that the plaintiff was injured in her person, her means of support, or in her property, by reason of any sale or sales of liquor by the defendant to the plaintiff's husband.

The cause was tried to a jury. The opinion of the court contains a statement of what the testimony tended to prove. At the trial the plaintiff disclaimed to the jury the right to recover any thing on the ground of the death of the husband, or for any injury to her person or property.

The court charged the jury as follows:

"If the defendant, by the sale of liquor to Zimri Hosier, produced his intoxication, and if Zimri Hosier was a man in the habit of getting intoxicated, and the defendant knew the fact that Hosier was in the habit of becoming intoxicated, aud if the plaintiff was, by such intoxication of her husband, so produced by the defendant, injured in her means of support, she is entitled to compensation for the injury she has sustained.

"You are to look at all the testimony, and determine what would have probably been the means of support which the plaintiff would have had in the event that no sale of liquor had been made to Zimri Hosier by

the defendant, and to the extent that she has suffered in her means of support by intoxication produced by the defendant. If that intoxication was produced by liquor sold in violation of law, alleged in the petition, you are to allow her damages.

"If the deceased, Zimri Hosier, was in such circumstances that his wife and children required the proceeds, or part of the proceeds, of his daily labor for their support, they were entitled to this support out of his daily labor; and the person who, by selling liquor to the deceased, and thereby producing his intoxication, deprived them of the means of support, in whole or in part, would be liable to respond in damages to the amount of support he deprived them of.

"Every man who has a wife owes her maintenance. If he has not other means at command to afford that support and maintenance, he must necessarily provide such means in some comfortable manner. If his only means of affording such support is out of his daily labor, then the person who, by producing his intoxication in violation of law, renders him unfit for labor, and prevents him from pursuing his only means for the sustenance of his wife, is liable. But if the party alleged to have neglected his business from intoxication would not have pursued his business if sober, or if, before the sale of liquors to him, as alleged, he was unfit for any occupation, in that event his wife would suffer no damage from his intoxication. But if he would have pursued his regular occupation if sober, and by intoxication produced by another, by the sale of liquor in violation of law, failed to pursue such occupation, and his wife is thereby deprived of the means of support, she is entitled to recover to the amount which she may have been deprived of the means of support. And if the other facts appear, it is for you to say, from the testimony in the case, in the light of surrounding circumstances, what injury the plaintiff has sustained in her means of support, and to allow her accordingly.

"And you may go beyond this, and not only allow her the actual damages sustained, but allow damages by way of punishing the defendant, and of serving as an example to others. This is a matter within your sound discretion, as to whether you will allow these vindictive or exemplary damages or not; or, if you allow them, what amount you will allow.

"If there were aggravating circumstances surrounding the selling, such circumstances may be considered in assessing the amount of damages. If the defendant knew the family of Hosier needed the assistance of his labor for their support, and that, by his intoxication, he neglected to provide for their support; and if he was requested by the wife or other persons of the family to desist from selling liquor to the husband, and still persisted, these would be circumstances in aggravation of damages. What circumstances are, or are not shown by the testimony, to exist in this case, whether aggravated or mitigated, is for you to determine. You are to look to the testimony, and the whole testimony, and render such verdict as you may think, under your oaths, is justified.

"You should not be influenced by your personal views of the propriety or impropriety of the law. Whether the law was properly or improperly passed, is not for you or me to determine. It is the duty of courts and juries to enforce the laws in proper cases, as they may find them, until they are repealed, or by some proper tribunal declared unconstitutional

"If the party was far gone in the habits of intoxication, and had become diseased bodily or mentally, and the defendant knew this fact, the selling to him, under these circumstances, would be more aggravating than selling to one not so badly addicted to intemperance, and who had more vigor of mind and body.

"On the other hand, if the defendant at times, in good faith, refused to furnish liquor to the deceased when requested, this would be a circumstance that might be considered in mitigation of damages. If such refusal was not in good faith, but merely to deceive persons present as to his course toward the deceased, his refusal would not be in good faith, and would not go in mitigation. It is not intended by these remarks to intimate to the jury any opinion as to what the facts were in this case; what the facts were is entirely for the jury."

The defendant excepted to the charge of the court, and, after it was concluded, requested the court to charge the jury that before they could find the defendant's liability fixed under the law, a preponderance of evidence must show:

"First. That the defendant sold intoxicating liquors to the plaintiff's late husband, in violation of law, whereby her said husband was made to become intoxicated."

"Second. That while thus intoxicated, from the defendant's unlawful act, and as the probable result of such intoxication, the said husband did some act or some thing resulting in immediate and actual injury to the plaintiff, in her person, her property or her means of support actually in existence."

"Third. That the said husband's omissions to labor while intoxicated, by the unlawful act of the defendant, cannot be made the ground of recovery in this action."

"Fourth. That the wages of the said husband, for labor never peformed by him, did not constitute the means of support of the plaintiff, within the meaning of the law, even if the jury should believe from the evidence that the said husband would probably have labored and made wages, had it not been for his intoxication, produced by the unlawful act of the defendant."

The second, third and fourth of these propositions the court refused to give in charge to the jury, and defendant excepted.

The verdict was for the plaintiff, assessing the damages at $200. The defendant moved to set aside this verdict and for a new trial, on the following grounds: 1. The verdict is against the weight of the evidence. 2. The verdict is against the law of the case.

3. The court erred in its charge to the jury.

4. The court erred in refusing to charge as requested by the defendant.

5. The damages are excessive, and were given under the influence of passion, prejudice and misapprehension of the law and evidence.

This motion was overruled and exception taken, and judgment entered on the verdict.

To reverse the judgment the defendant filed his petition in the district court, claiming that the common pleas erred:

1. In overruling his motion to make the second amended petition more definite and certain, and in permitting the plaintiff below to amend her petition at bar, without verification of the amendment.

2. In overruling the demurrer to the petition as amended.

3. In the charge to the jury, and in refusing to charge as requested by the defendant below.

4. In overruling the motion to set aside the verdict and for a new trial.

The cause was reserved in the district court for decision in this court.

Gilmore & Campbell (with Hubbard & Freeman) for plaintiff in error:

1. The statement of facts and averments of the second amended petition are such as to leave it uncertain whether the plaintiff below placed her right to recover on the sixth or on the seventh section of the "liquor law" (S. & C. 1432), or on the act allowing damages for unlawfully causing the death of her husband. S. & C. 1139.

2. The demurrer to the petition was improperly overruled:

(1) The plaintiff improperly joined causes of action which should be separately stated and numbered. Code, $$ 85, 86.

(2) The plaintiff had not legal capacity to sue in the action. The original petition was filed after her husband's death. The right of action against the defendant, which she had as a wife, under the seventh section of the liquor law, did not survive to her as a widow. The liquor statute is penal in its character, and should be strictly construed. Hall v. The State, 20 Ohio, 7; U. S. v. Wilson, Baldw. C. C. 78. The widow is not within the definition of the seventh section, taking the word in its ordinary acceptation. The statute does not provide that the right of action purely statutory right-given to the wife shall survive to her as a widow. Where one claims a statutory right against another, he shall bring himself clearly within the terms which confer that right. Rolcliff v. Beck, 10 West. L. J. 72, and cases there cited.

-a

The statute does not vest in the wife any interest or property, but simply a naked right of action. The plaintiff, as wife, had no claim or title whatsoever, till after suit commenced, to the damages for which the seventh section gives her a naked right of action only. 3. The court erred in refusing to set aside the verdict and grant a new trial:

(1) The verdict is against the weight of the evidence, and the damages are excessive.

As to exemplary damages, the charge was erroneous and calculated to mislead the jury, and prejudice them against the defendant. The term "exemplary damages" is used without qualification in the seventh section. It must be presumed, therefore, that it is used in the sense in which it is understood at law, and it cannot be expanded or contracted from this. "Exemplary damages are given in cases where the aggressor is animated by a fraudulent, a malicious, or an oppressive intention." Sedgw. on Dam. 35. And the defendant must have acted with these, or some of these, toward the plaintiff. The testimony shows no legal ground upon which exemplary damages could be allowed; and the court should either have said so to the jury or have said nothing on the subject of exemplary damages. The court failed to indicate or define the legal grounds upon which such damages are allowable, but gave the jury erroneous impressions on the subject, and turned them in upon the defendant with no rule to guide them but their "sound discretion." Throughout the charge, matters of fact which should have been left to the jury, are charged as matters of law. Kober v. The State, 10 Ohio St. 444.

J. H. Foos, for defendant in error:

1. The second amended petition contains but one cause of action. All the averments in the petition, respecting the death of the husband, are simply descriptive of the injury to the plaintiff's means of support, and do not profess to be a substantive ground of recovery.

2. The plaintiff had legal capacity to sue. The action is by her as a person, Sarah Hosier, not as a widow. The injury was done to her while she was the wife of Zimri Hosier, and his death did not work a forfeiture or abatement of this right. It was not necessary to the continuance of the right of action that the suit should have been brought in the life-time of the husband. This is not a case where the principles of survivorship obtain. The husband had no interest in the subject-matter of the suit. His death did not affect the right of the wife. If she had died before suit brought, the question of survivorship might have been raised. But, in the present case, no one has died who had any interest in the controversy; both parties are living. If the plaintiff does not come under the de

(3) The court erred in its charge to the jury and in refusing to charge as requested. The charge was inapplicable and legally unsound. The court fails to give a legal definition to the vague phrase "means of support." Each juror was left to guess its meaning.

It was error to unite the children with the wife. Each of them had a right of action under the statute. She had sued for herself alone, and could not recover for them or on account of them. The language of the statute is, "that every wife, child," etc., shall have a right of action, etc.

It was stating the case too strongly and erroneously, and in a way calculated to mislead the jury, for the court to say that every husband “must necessarily procure" means of support for his wife, etc.

description of "other persons," as used in the statute. The civil action given by the statute is not a penal action. It is like actions for a malicious prosecution, injury to personal property, or slander; in all of which exemplary damages may be given as a punishment for the malice. And yet these actions are not termed or known as penal actions, nor are the rules governing them construed strictly.

2. The motion for a new trial was properly overruled: (1) The verdict is not against the weight of the evidence, and the damages are not excessive.

(2) The verdict is not contrary to law. By virtue of the statute giving the right of action, the plaintiff was entitled, on the facts stated in the petition, to recover for the injury to her "means of support," resulting from her husband's inability, in consequence of intoxication, to perform labor and earn wages necessary and applicable to her support. Duroy v. Blinn & Letcher, 11 Ohio St. 331. The wife has the right to be supported by the husband (2 Kent's Com. p. 146), and by his daily labor, if necessary.

(3) The charge of the court, when taken as a whole,

will be found to be a correct exposition of the law of the case.

MCELVAINE, J. 1. We find no error in the overruling of the motion to make the second amended petition definite and certain. The nature of the charge contained therein is sufficiently apparent. The petition contains, no doubt, much irrelevant matter that might have been stricken out, but no objection was made by motion to strike out, which is the only way of reaching such matter.

2. It is also assigned for error, that on the hearing of the motion to make the second amended petition definite and certain, the plaintiff below was permitted by the court, against the objection of the defendant, to amend, by inserting in the petition an allegation that the proceeds of her husband's labor had formerly been applied to her support, without subsequent verification.

The petition containing the averment referred to appears in the record properly verified. It is true, the clerk entered upon the journal of the court the fact as claimed by plaintiff in error, but the only proper mode of saving such rulings upon the record is by bill of exceptions.

The practice of mutilating pleadings by striking out or inserting new matter, by way of amendment, must be condemned; but, in this case, even if the question had been properly saved, it would not afford ground for reversal, as it is clear the defendant was not prejudiced by the alteration, for the reason that the amendment was immaterial and unnecessary. Before the alteration the petition contained a statement that the plaintiff was dependent upon the labor of her husband for her support, which certainly was a sufficient predicate for an averment of injury by being deprived of such means of support.

But quære-whether it was necessary to aver that she was dependent upon his labor for her support?

3. The overruling of the demurrer to the second amended petition is also assigned for error.

The demurrer specifies these grounds of objection: 1st. That several causes of action are improperly joined;

2d. That the plaintiff has no legal capacity to sue; and, 3d. That the petition does not state facts sufficient to constitute a cause of action.

As to the first objection. There is, in fact, but one cause of action stated in the petition. The action is brought under the seventh section (original) of the act of May 1, 1854 (S. & C. 1432), entitled An act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio," to recover damages for injuries sustained by the plaintiff, as the wife of Zimri Hosier, in consequence of his intoxication caused by the defendant.

Said section reads as follows: "That every wife, child, parent, guardian, employer or other person, who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, such wife, child, parent, guardian, employer or other person shall have a right of action, in his or her own name, against any person who shall, by selling intoxicating liquors contrary to this act, have caused the intoxication of such person, for all damages actually sustained, as well as exemplary damages," etc.

As to the second objection taken by the demurrer. It is claimed that the plaintiff below had no legal capacity to sue: "1st. Because the statute does not provide that the right of action given to a "wife" shall survive

to her as a widow. And 2d. Because the statute does not vest in the wife any interest or property, but simply a naked right of action."

It may be conceded that this statute, being in its nature penal, and providing a remedy unknown to the common law, must be strictly construed; and, therefore, no person can maintain an action under its provisions, to whom a right of action is not given by its terms.

The term "wife" is used to designate a class of persons to whom the right of action is given. The plaintiff was the wife of Zimri Hosier at the time the defendant caused his intoxication, and at the time the injuries complained of were sustained. The right of action then vested in her, and having vested, the statute did not divest it upon the death of her husband; nor does it abate upon common-law principles. The husband had no interest in it, and no control over it. The right of action vested in her, to be prosecuted in her own name, and for her sole use. She did not lose her identity by the death of her husband. True, the relation of wife closed, but that relation, although essential, by the terms of the statute, to the inception of the right of action, is not necessary in the prosecution of the remedy. The plaintiff does not sue because she is the widow of Zimri Hosier, but because she was his wife at the time she was injured. The term "employer" is used to designate another class of persons to whom a right of action is given by the terms of this statute. If the right of action vested in a wife abates upon the death of her husband, because the relation of wife no longer exists, I take it, that an employer cannot sue under this statute, after the relation of master and servant has ceased. Strict construction does not lead to such conclusions.

Nor is the right of action given by this statute a mere naked right, as in popular or qui tam actions. But it is a right to a remedy for a real injury; a means of recovering actual, personal damages.

In popular actions the right to sue is given to any person who may first prosecute, not for a personal injury, but for a penalty to which the prosecutor has no claim until suit is commenced. Under this statute the right of action is confined to the persons named, and they cannot recover unless they prove actual injury to their persons or property, or means of support.

As to the third objection stated in the demurrer. It is sufficient to say that the statutory grounds of action are all sufficiently stated in the petition.

4. The defendant below moved the court to set aside the verdict and for a new trial, upon the ground that the verdict was contrary to the law and evidence. The overruling this motion is claimed to be error.

The testimony tended to prove (and it is sufficient for that purpose) that the plaintiff's husband, for some time previous to his death, was habitually intoxicated; that the defendant sold him intoxicating liquors in violation of the act of May 1, 1864, and thereby caused his intoxication; that by reason of such intoxication he (the husband) was rendered incapable of performing his ordinary labor; that the plaintiff was dependent on his labor for support; that the proceeds of his labor had previously been applied for that purpose: that in consequence of such intoxication the plaintiff was compelled to resort to other resources for the supply of her wants; that plaintiff was reduced to a state of want, although the husband continued to furnish a portion of her means of living, from money received on the sale of his property.