text:
    The State, Appellant, vs. Myers, Respondent.
    1. An indictment under the thirtieth section of the act concerning “ school lands," (JR. C. 1845,) which charges the defendant with committing “waste, trespass and other injury," fcc., “ by cutting down and cairying away timber," &c., is not bad for duplicity.

      Appeal from Sullivan Circuit Court.

      Gardenhire, (attorney general,) for the State.
    No appearance for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The defendant, Yalentine S. Myers, was indicted at the April term, 1854, of the Circuit Court of Sullivan county, for trespassing upon school land. At the October term following, the defendant appeared and filed bis motion to quash the indictment. This motion was sustained, and the court quashed the indictment. The circuit attorney excepted to the ruling o£ the court, filed his bill of exceptions, and brings the case here by writ of error. The indictment, then, raises the only point for our consideration.

1. The indictment charges that “Yalentine S. Myers, on, &e., at, &c., with force and arms, unlawfully did commit waste and trespass and other injury upon certain school lands, situated in the county of Sullivan, in the state of Missouri., and then and there known and designated as section sixteen, in township sixty-one, of range twenty-one, by then and there unlawfully cutting down divers, to-wit, fifty timber trees, and fifty other trees, then and there standing and growing upon said lands, and did then and there unlawfully carry away the timber and wood of said trees, contrary,” &c.

The defendant’s reasons, in support of his motion to quash, are, because “the indictment is double in charging different offences under the same in one count. It is uncertain and insufficient, and does not properly charge any offence under the statute in such cases.”

The section of the act upon which this indictment was found, is as follows : Sec. 30. “If any person shall commit waste, trespass or other injury upon any school lands in the state, or upon any improvements thereon, the person so offending shall, upon conviction thereof, be fined in a sum not exceeding five hundred dollars.” (R. 0. 1845, tit. “ School Lands.”)

The indictment charges that defendant did commit waste and trespass and other injury upon the sixteenth section, by cutting down fifty timber trees and fifty other trees, and did then and there unlawfully carry away the 'timber and wood of said trees.

There is no force in the objections taken by the defendant to this indictment. It is clearly and manifestly sufficient, and the court should not have sustained the motion. It is to be regretted that the circuit courts should lend so willing an ear to such trivial objections to indictments for mere misdemeanors. In the case of The State v. Fletcher, (18 Mo. Rep. 427,) this court said : ‘ ‘ The practice of sustaining motions to quasb indictments for every trivial objection, or for every formal defect, tends to the great perversion of justice and to the increase of offence. The motions to quash are-always addressed to the discretion of the court.” In the same opinion, is a quotation from Ohitty on Crim. Law, in which it is laid down that, in case of misdemeanors, the joinder of several offences will not, in general, vitiate in any stage of the prosecution.” It is the constant practice to receive evidence of several libels and assaults upon the same indictment. See, more especially, the case of State v. Storrs, (3 Mo. Rep. p. 9.)

Here, the cutting and carrying away the timber may be one continued trespass, and it is to the advantage of the defendant that the circuit attorney should thus have considered it one act and one offence.

The judgment of the Circuit Court must be reversed, and the cause remanded;

Judge Scott concurring.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    The State, Appellant, vs. McCracken, Respondent.
    1. " The county aforesaid” in an indictment not a sufficient venue, where two counties have been previously named.

      Appeal from Polk Circuit Court.

    Indictment of a road overseer for neglect of duty. The indictment was quashed below and the State appealed. Enough of the indictment is contained in the opinion of the court to show the point decided.

      Gardenhire, (attorney general,) for the state,
    cited 1 Chitty’s Crim. Law, 170. R. C. 1845, p. 869, sec. 17. „

      F. P. Wright, for respondent,
    cited 2 Mo. Rep. 228. 3 Mo, Rep. 45. 1 Chitty’s Crim. Law, 179.
   Ryland, Judge,

delivered the opinion of the court..

The court did not err in quashing this indictment. The venue is no where laid with certainty, as to the county and road district over which the defendant was overseer. The indictment charges " that there is a public road-and highway leading from Hickory county line, on the state road leading from Warsaw to Bolivar, and terminating at Dry Pome de Terre, in the county of Polk aforesaid; and that Ephraim McCracken, of said county, on the day and year aforesaid, was, and ever since hath been, and yet is overseer of said road district number one, in the county aforesaid, duly appointed,” &c.; and whenever af-terwards the venue is any where laid in said indictment, it is said to be at the county aforesaid.

1. Although this court discourages trivial technical objections and exceptions to indictments for misdemeanors, and has generally discountenanced such; yet when no time is laid to any act material to constitute the offence, and no venue properly and certainly laid, and such exceptions are taken in the court below, and by that court sustained, it will he useless to come here to have the judgment of such lower court reconsidered.

The case of The State v. Hardwick, (2 Mo. Rep. 228,) is direct authority in support of the judgment of the Circuit Court in this case.

Here, the county of Hickory is named, and also the county of Polk — two counties mentioned in the body of the indictment, hnd the offence is stated to have been committed “ at the county aforesaid,” without showing certainly which county; this, according to the case of The State v. Hardwick, is not sufficient. The same rule in regard to indictments is again laid down by this court, in the case of Jane v. The State, (3 Mo. Rep. 63.) When two different times and two different places are mentioned in an indictment, and a material fact is after-wards ayerred, it will not be sufficient to give venue to such fact, by stating “ then and there,” only ; for it will not do to say that, grammatically, " then and there” refer to th'e last cedent time and place. Upon looking into this indictment, we are satisfied the Circuit Court committed no error in quashing the same. The judgment is therefore affirmed;

Judge Scott concurring.


text:
    The State, Respondent, vs. Barnes, Appellant.
    1. A grand jury may be summoned and an indictment found at an adjourned term by statute.

      Appeal from, Polk Circuit Court.

      W. H. Otter, for appellant.

      Gardenhire, (attorney general,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted by the grand jury at an adjourned term of the Circuit Court, held in January, A. D. 1858, within and for the county of Dade. From the record before us, it appears that the Circuit Court within and for the county of Dade, adjourned over its regular term for October, 1852, until Monday, the 10th day of January, A. D. 1853; that on Monday, 10th January, 1853, the adjourned term began, and was held in pursuance of the order theretofore made at the regular term of the court in October, 1852.

At this adjourned term, an order was made by the court directing and requiring the sheriff to summon a grand jury. The order is as follows : “Now at this day, it appearing to the satisfaction of the court that certain offences have been committed since the grand jury at this term were discharged, and which is now here brought to the discovery of the court; it is therefore ordered and directed by the court, that the sheriff of Dade county summon a grand jury to appear in this court forthwith.” This the court had authority and power to do by virtue of the thirteenth section of the third article of the act concerning “practice and proceedings in criminal cases.” (R. C. 1845, p. 865.) “If any offence be committed or discovered during the sitting of any Circuit Court, after tbe grand jury attending sucb court shall be discharged, such Court may, in its discretion, by an order to be entered on its minutes, direct the sheriff to summon another grand jury.”

I am thus particular in noticing this proceeding, because the defendant, Barnes, who was indicted at this adjourned term and by this grand jury thus ordered to be summoned, rests his whole grounds for the reversal of this judgment upon these proceedings.

The indictment was for a felonious assaulting and shooting at one Thomas ICimman. The defendant obtained a change of venue from Dade Circuit Court to the Circuit Court of Polk county ; was there tried and found guilty, and sentenced to pay one hundred dollars fine, and be imprisoned in the county jail for three months. He moved in arrest of judgment, and assigned the following causes therefor : because the record does not show that Dade Circuit Court, at the term the indictment was found, had jurisdiction; because there is no record showing when said court had adjourned to or to. what time.

1. There is nothing in these causes to support the motion in arrest. It does appear that the Circuit Court of Dade county did adjourn its regular October term in the year 1852, over to the 10th day of January, A. D. 1853 ; it then commenced its sessions again, and it was the regular October term adjourned. At this adjourned term, which is the same as though it were a regular daily adjournment of the same term from October to January, had nothing intervened to prevent it, the second grand jury was impannelled. This grand jury was to inquire into offences discovered since the last grand jury had been discharged. This grand jury indicted Henry Barnes, the defendant, and there cannot be a doubt of the jurisdiction of the court in which the indictment was found. The record plainly shows when the regular October term was adjourned to, namely, the 10th January, 1853, and it also as plainly shows that on that day the court met pursuant to adjournment.

These being the only matters relied on for arresting the judgment, the court below very properly overruled the motion.

We have examined these causes assigned in the motion for an arrest of the judgment, and also have examined the indictment. In the opinion of this- court, the indictment is sufficient. There being no exceptions taken to any other act of the court below, and there being no reason why its judgment should be arrested, this court affirms the judgment of the Polk Circuit Court, and orders the same to be carried into execution;

Judge Scott concurring.

X.


text:
    The State, Plaintiff in Error, vs. Shiflett, Defendant in Error.
    1. An indictment upon one section of a statute need not negative an exception in a subsequent section.

      Error to Linn Circuit Court.

    Gardenhire, (attorney general,) for the State.
    1. When a statute contains provisoes and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provi-soes. (1 ■Chitty’s Crim. Law, 283. 2 Hale, 171. Hawk. C. 2, c. 25, s. 112. State v. Mams, 6 N. Iiamp. 533-4.) 2. The indictment is not double. (Storrs v. State, 3 Mo. Rep. 7.) 3. The venue is sufficiently laid. (1 Chitty’s Crim. Law, 198. State v. Edwards, 19 Mo. Rep. 677.)
    No appearance for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

The defendant, James Dudley Shiflett, was indicted at the April term of the Circuit Court for the county of Linn, in the year eighteen hundred and fifty-three, for wilfully and unlawfully opening one sealed letter not addressed to himself, and without authority from the writer thereof, or from the person to whom it was addressed.

The defendant appeared to the indictment at the October term of the court, and made his motion to quash the same, for the following reasons : That said indictment does not negative the fact that said offence is punishable by the laws of the United States ; that said indictment is defective in joining two separate offences in the same count; that said indictment does not give venue to the person by whom said letter was written, &c. ; no venue to the reading of the letter ; no sufficient venue to the material charges contained in the same ; and that the indictment is double, informal, insufficient and uncertain.”

The Circuit Court quashed the indictment. ■ The circuit attorney excepted to the ruling of the court, filed his bill of exceptions, and brings the case here by writ of error.

1. The indictment is based upon the 40th section of the 8th article of the statute concerning “ Crimes and Punishments,” (R. C. 1845, p. 406,) which section is as follows, viz : “If any person shall wilfully open or read, or cause to be read, any sealed letter not addressed to himself, without authority to do so from the writer thereof, or from the person to whom it is addressed, he shall, on conviction, be adjudged guilty of a misdemeanor, and shall be punished by fine not exceeding two hundred and fifty dollars, or by imprisonment in a county jail not exceeding three months.”

Sec. 41. “ Every person who shall publish the whole or any part of the contents of such letter, without the authority of the writer thereof, or of the person to whom it is addressed, knowing the same to have been unlawfully opened, shall, on conviction, be adjudged guilty of a misdemeanor, and punished as in the preceding section is specified.”

Sec. 42. “ The two last sections shall not extend to the breaking open of letters, which shall be punishable by the laws of the United- States.”

The indictment charges that James Dudley Shiflett, late of Linn county, “ on, &c., with force and arms, at the county aforesaid, one sealed letter, then and there being, and then and there addressed to one Catharine Buchanan, and purporting to have been written by one George Gimmett, did then and there wilfully and unlawfully open and read said letter, without any authority from the said Catharine Buchanan, or from the said George Gimmett, then and there authorizing him, the said James Dudley Shiflett, to open and read said letter, contrary,” &c.

This indictment is substantially good ; the venue is properly laid to all the material charges therein, and there is not the least pretext for considering it double. The charge is but one offence, and it is stated sufficiently plain. I presume the court below quashed it for the reason first assigned by defendant in support of his motion, “ that the said indictment does not negative the fact that said offence is punishable by the laws of the United States.”

There is no force in this objection. It is a well settled rule that, when a statute contains provisoes and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisoes it contains.

In the case of The State v. Adams, (6 N. Hamp. Rep. 533,) the court laid down this rule thus : “ The rule is, where-the exception is in the enacting clause of the statute, it must be negatived in the indictment. But where it is in a subsequent clause of the statute, it is mere matter of defence.” It is laid down in Bacon’s Abridgment, tit. “ Indictment,” letter H, 3, that “There is no need to allege in an indictment on a statute, that the defendant is not within any of its provisoes, notwithstanding the purview expressly takes notice of them, as by saying that none shall do the thing prohibited otherwise than in such special cases, &c., as are expressed in the act.” Lord Mansfield, in the case of the King v. Morice Jarvis, (Hilary term, 30 Geo. II, reported in 1 East. Rep, 646, in notes,) said : “ Eor it is a known distinction that, what comes by way of proviso in a statute, must be insisted on by way of defence by the party ■ accused; but where exceptions are in the enacting part of the law, it must appear in the charge that the defendant does not fall within any of them.” Same rule laid down in Chitty’s Crim. Law, vol. 1, p. 288, (a.)

In Commonwealth v. Maxwell, (2 Pick. 140,) Putnam, Judge, said : “ The rule is, that where the enacting clause describes the offence, with certain exceptions, it is necessary to state all the circumstances which constitute the offence, and to negative the exceptions ; but where the exceptions are contained in separate clauses or provisions of the statute', they may he omitted in the indictment, and may be shown by the defendant as matters in defence.”

In Vavasour v. Ormrod, (6 Barn. & Cress. 430, reported in 13 Eng. Com. Law R. 225,) Lord Tenterden, Chief Justice, said : “ If an act of parliament, or a private instrument contain in it, first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it, a party relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception. But if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it with the exception ; and if he state it as containing an absolute unconditional stipulation, without noticing the exception, it will he a variance.”’

In the case of the United States v. Hayward, (2 Gallison’s Rep. 497,) Justice Story, in' delivering the opinion, said: " The general rule of law is, that it is sufficient to negative the exceptions in the enacting clause of a statute, and exceptions which come in by way of proviso or in subsequent statutes, are properly matter of defence for the defendant.” (See the King v. Bryan, 2 Strange, 1101. Teel v. Fonda, 4 Johns. Rep. 306.) This doctrine is well settled. ■ Lord Mansfield, nearly a hundred years ago, spoke of it as a long established and well known rule.

Now let us apply it to the case before us. The fortieth section above cited, of the act concerning crimes and punishments, article 8, is the clause or section creating this offence. This section is the enacting clause, where „the offence has. its legal origin ; it is there first pointed o.ut and created by the statute. The 42d section has the exception to the offence ; it is in a subsequent and different clause from the one enacting or creating the offence; and, under the well known and long established rule, in such cases, the indictment need not negative the matters creating the proviso or the exception.

The indictment then, in this case, is considered sufficient, and it was error in the Circuit Court to quash it. (See State v. Edwards, 19 Mo. Rep. 675.)

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings ;

Judge Scott concurring.


text:
    The State, Appellant, vs. Bess, Respondent.
    1. An indictment against a man and woman, which charges that they were “ guilty of open, gross lewdness and lascivious behavior, by publicly, lewdly and lasciviously abiding and cohabiting with each other,” &c., in the words of the third specification of section 8 of article 8 of the act concerning “ crimes and punishments,” (R. C. 1845,) is good, although it does not state whether they were married or unmarried.

      .Appeal from Shannon Circuit Court.

      Gardenhire, (attorney general,) for the State.
    No appearance for respondent.
   Ryland, Judge,

delivered the opinion of the court.

At the April term of the Circuit Court, within and for the eounty of Shannon, in the year 1854, the grand jury indicted John Bess and Polly Bess, (alias Polly Cox,) for open, gross lewdness and lascivious behavior, by publicly, lewdly and lasciviously abiding and cohabiting with each other.

At the September term following, the defendants appeared and made their motion to quash the indictment. The court sustained their motion and quashed the indictment. The circuit attorney excepted to the judgment of the court, and brings the case here by appeal. The sufficiency of the indictment is the only matter for the consideration of this court. This indictment is as follows :

“ State of Missouri, county of Shannon. In the Shannon Circuit Court — April term, 1854. The grand jurors for the state of Missouri, impanneled, &c., upon their oath present, that John Bess and Polly Bess, (alias Polly Cox,) both late of Shannon county, on the first day of May, in the year eighteen hundred and fifty-three, and on divers other days between that day and the time of the finding of this bill of indictment, with force and arms, at, &c., did then and there live in a state of open and notorious adultery, and did then and there lewdly and lasciviously abide and cohabit with each other ; and was then and there guilty of open, gross lewdness and lascivious behavior, by then and there publicly, lewdly and lasciviously abiding and cohabiting with each other, contrary,” &c.

This indictment is for an alleged offence against the eighth section of the eighth article of the act concerning crimes and punishments, (R. C. 1845, p. 400,) which is as follows : “ Every person who shall live in a state of open and notorious adultery; and every man and woman, (one or both of whom are married, and not to each other,) who shall lewdly and lasciviously abide and cohabit with each other; and every person married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior, or of any open and notorious act of public indecency, grossly scandalous, shall, on conviction, be adjudged guilty,” &c.

The indictment charges that the-defendants " did live in a state of open and notorious adultery,” and did then and there lewdly and lasciviously abide and cohabit with each other.” We do not consider the indictment good in respect to either one of these charges and specifications ; it is not sufficient to charge that two persons did live in a state of open and notorious adultery ; it must be shown that one or both are married ; adultery is a violation of the marriage bed. Marriage is also necessary in order to be within the second charge or specification in the above section of the statute: “Every man and woman, (one or both of whom are married, and not to each other,) who shall lewdly and lasciviously abide and cohabit with each other.” It must also be averred that one or both of the two persons are married, and not to each other, in order to be guilty, under the second specification, as pointed out in the above section of the act. But there is a third clause of this section, in which it is provided against those persons, married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior. Had the indictment, in this case, included only the two offences, as charged above, that is, “ the open and notorious adultery,” and the “lewdly and lasciviously abiding and cohabiting with each other,” in the manner as is therein set forth, it would have been bad; for neither one of these offences is properly charged. The indictment, however, contains a third charge, and it is stated correctly under the statute. After setting forth the two charges, as noticed above, it proceeds thus : “ And were then and there guilty of open, gross lewdness and lascivious behavior, by then and there publicly, lewdly and lasciviously abiding and cohabiting with each other.” Here we find an offence sufficiently charged in the indictment, and sufficiently described under the statute. What act can be more grossly lewd or lascivious than for a man and woman, not married to each other, to be publicly living together, and cohabiting with each other ?

The defendants are charged with being guilty of open, gross lewdness and lascivious behavior by publicly, lewdly and lasciviously cohabiting with each other. The offence charged is an act of open, gross lewdness and lascivious behavior. The manner in which the offence is perpetrated is by the defendants publicly, lewdly and lasciviously cohabiting together. There is nothing in the objection of the defendants to the indictment, wbicb would warrant the court below in quashing the same. The judgment is therefore reversed, and the case remanded for further proceedings ; the other judges concurring.


author: Ryland, Judge.

text:
    The State, Appellant, vs. Wilhight, Respondent.
    1. See State v. Bess, ante.

      Appeal from Reynolds Circuit Court.

    Gardenhire, (attorney general,) for the State.
    No appearance for respondent.
   Ryland, Judge.

This case is within the principle settled by this court in the case of the State v. John Bess & Polly Cox, at this term. It is an indictment under the same section of the act concerning crimes and punishments, and for a similar of-fence, and charged in the same manner as the offence was against Bess and Cox. Reference is therefore had to the opinion of the of the court in the case of Bess & Cox, for the determination of this. The judgment of the court below is reversed, and the cause remanded for further proceedings ; the other judges concurring.


text:
    The State, Appellant, vs. Tuley, Respondent.

    X. An indictment under the 57th section of article one of the act concerning “roads and highways,” (K. C. 1845,) must distinctly chai-ge that the fork of the road At which the defendant failed to place a finger hoard, is within the road district of which he was overseer; and to constitute an offence under this section, the roads forming the fork must not terminate at the same point.

      Appeal from Clay Circuit Court.

    Gardenhire, (attorney general,) for the State.
    No appearance for the respondent.

      Three other precisely similar cases were decided at the same time with this case, viz : The State v. Singleton, The State v. Bond, and The State v. Stephenson, the judgments in all being affirmed.

   Ryland, Judge,

delivered the opinion of the court.

The defendant, Tuley, was indicted by the grand jury at the April term of the Circuit Court within and for the county of Clay, in the year 1854, for neglect of duty as a road overseer. The defendant demurred to the indictment. The court sustained the demurrer, and the State brings the case here by appeal.

The sufficiency of the indictment is the only matter for the consideration of this court. The indictment is as follows :

State of Missouri, Fifth Judicial Circuit, Clay county, to-wit — In the Circuit Court of Clay County, in the state of Missouri, of April term, A. D. 1854. The grand jurors for the state of Missouri, for the body of the county of Clay aforesaid, upon their oath present, that Victor M. Tuley, late of said county of Clay, on, &c., in the year of our Lord, one thousand eight hundred and fifty-four, at the county of Clay aforesaid, was, and ever since that time has been, and still is the road overseer of that part of a certain public road in the county of Clay aforesaid, known as road district number thirty-three, to-wit: commencing at the forks of the road, where the one goes to Turnham’s landing and the other to Meek’s ferry, thence to Richfield, and that the said Victor M. Tuley, road overseer as aforesaid, on, &c., at, &c., unlawfully and wilfully failed and neglected, and be still does wilfully fail and neglect to erect and keep a post at the fork of the road, in the road district aforesaid, where a certain public road leading to Richfield, in said county of Clay, leaves the said road, to-wit: the road district aforesaid, and to affix - a finger board thereto, containing a legible inscription, directing the way and noting the distance to the next remarkable place on the road; or to affix to a suitable tree, at the proper place, to-wit: at the forks of the road aforesaid, a finger board, containing a legible inscription, directing the way and noting the distance to the next remarkable place on the road, against the form,” &c.

1. This indictment is for an alleged violation of tbe 57th section, first article of the statute concerning roads and highways, (R. C. 1845,) which is as follows: Sec. 57. “Every overseer shall erect and keep a post at every fork of the road or cross road in his road district, unless a suitable tree be found at the proper place, to which shall be affixed a finger board containing a legible inscription, directing the way and noting the distance to the next remarkable place on the road.”

The indictment' is insufficient; it does not directly charge that there is a fork in the road over which the defendant is overseer. This is left entirely to implication. The indictment avers that Tuley is road overseer of that part of a certain public road known as road district number thirty-three, to-wit: commencing at the forks of the road where one goes to Turn-ham’s landing, and the other to Meek’s ferry, thence to Rich-field ; it then avers that Tuley wilfully failed and neglected to erect and keep a po^t at the fork of the road, in the road district aforesaid, where a certain public road leading to Richfield leaves the said road, to-wit: the road district aforesaid.

From the indictment, we are led to suppose that the road district number thirty-three, over which the defendant is road overseer, begins at the fork, where one road leads to Turn-ham’s landing and the other goes to Meek’s ferry, thence on to Richfield; and that the said district number thirty-three consists of that road which goes to Richfield by Meek’s ferry ; if this be correct, then the objection taken, as one cause of the defendant’s demurrer, is a good one, viz : “ That the road charged with leaving the road, so as to make the fork, in fact was the same road starting from and going to the same place.”

In indictments, the principal facts in which the offence consists, must be positively or directly charged — must not be left to be implied by the court.

The indictment in this case is not drawn so as to charge the offence directly; it is too uncertain ; it requires implication, (which is not permitted,) before we can say that there has been an offence.

Judge Scott concurring,

the judgment below is affirmed.


text:
    The State, Defendant in Error, vs. Larrimore, Plaintiff in Error.
    1. Same ease, 19 Mo. Rep. 391, affirmed.
    2. A new trial will not be granted on account of newly discovered evidence which is merely cumulative.

      Error to Polk Circuit Court.

    Indictment for selling liquor without license. At the trial, the only witness introduced was a boy, examined on behalf of the state. He testified that Williams one day came into the shop of the defendant, who was a practising physician, and stated that he was sick and wanted some brandy. Defendant at first refused to let him have it, but finally gave him a drink for which Williams paid him twenty cents. Williams did not look pale. Defendant did not feel his pulse nor look at his tongue. Upon cross-examination, witness stated that Williams acted as if he was sick. The court instructed the jury to acquit, if they believed the defendant sold the brandy in good faith, as a practising, physician, upon his professional judgment of its necessity. The defendant was convicted. Pie afterwards filed a motion for a new trial, accompanied by his affidavit that since the former trial he had discovered the new and material evidence of John 0. Devin, by which he believed he could establish that he sold the brandy to Williams in good faith, as a medicine, upon his professional judgment; that he did not know that the facts were within the knowledge of Devin until after the former trial; that Devin would prove that Williams, after he drank the brandy, was in defendant’s shop and looked pale, and"appeared to have a slight chill, but said it was not so severe as usual on account of his having drank the brandy ; and that defendant had a good and meritorious defence. The' affidavit of Devin, corroborating this statement, was also filed. The new trial was not granted, and the defendant sued out this writ of error.

      F. P. Wright, for plaintiff in error.
    A new trial should have been granted on account of the newly discovered evidence. (2 Smedes & Marsh. 813. 7 Howard’s (Miss.) Rep. 365. 7 Metcalf, 478 . 5 Cow. 208. 14 J. R. 186. 61 E. 0. L. R. 160. 6 Pick. 114. 4 Wend. 579.) The defendant had offered no evidence whatever on the trial.

      GardenMre, (attorney general,) for the state.
    The new evidence was merely cumulative, and so no ground for a new trial. (12 Mo. Rep. 57.) It related to a point upon which the only witness in the cause was rigidly examined.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted for unlawfully selling intoxicating liquor in a less quantity than one quart, to-wit: one pint of brandy, to Albert Williams, without having any license of any kind for that purpose. The indictment was found at the April term, 1852, of the Polk Circuit Court.

The defendant was found guilty and fined twenty dollars. He brought the case to this court; the judgment of the Circuit Court was reversed, and the case remanded. Upon a second trial, the defendant was again found guilty and fined twenty dollars ; he moved for a new trial, which being denied him, he again brings the case to this court.

The defence below consisted, mainly, in an effort to show that the defendant sold the brandy to said Williams as a medicine, in the ordinary practice of his profession as a physician ; and whether he did so sell the brandy to said Williams as a medicine or not, was the question before the jury. The defendant was a practising physician.

1. When the case was before this court heretofore, we thought that the question, as to what manner or under what circumstances the brandy was sold to Williams by the defendant, had not been properly left to the jury ; and in the opinion then delivered, this court stated that the proper question for the jury to decide was : “ Whether defendant really administered the liquor to a diseased person, as a medicine, upon his professional judgment of its necessity ?”

In the same opinion, it was stated: “Ha physician, npon his professional judgment that a sick person needs brandy, administers it as a medicine, in good faith, and charges for it, he is not to be punished. But physicians are not to become dram-shop keepers under color of their professional practice.”

In looking over the instructions given to the jury on the last trial, we find them to embody the principles declared by this court in its opinion on this case when it was first before us.

The instructions were, in the main, as favorable to the defendant as the law would justify. His case was properly submitted, and the jury were properly instructed, and their attention called to the fact whether this brandy was really administered as a medicine or not. They found the defendant guilty, and we are not disposed to question the propriety of such finding.

2. But the defendant now relies upon newly discovered evidence. We have examined his affidavit, and also the affidavit of his new witness, and come to the conclusion that they do not make out grounds sufficient for a new trial. The evidence is only what is termed cumulative, and is such as never warrants the action of the appellate courts in setting aside verdicts and ordering new trials, unless under some peculiar circumstances. Here, after two trials, after the case has been in court for two years, the defendant seeks for a new trial on account of newly discovered evidence, and that evidence in relation to the situation of the person who purchased the brandy, in regard to his sickness or health, so as to show whether the brandy was administered as a medicine professionally by the defendant or not — the very question on which the case turned and on which all the evidence of the witness introduced had a direct bearing, and this new evidence being but very slightly in opposition to that already given; indeed, it is hard to perceive any inconsistency between that given and that newly discovered.

* But what is decisive of this application is, the total failure to account for the non-production of Williams, the supposed patient. What has become of him ? Where is he ? Did he die or recover ? Surely Dr. Larrimore knew whether Williams could be risked or relied upon to state whether the brandy was in good faith administered as a medicine or bought as a beverage ; yet he fails to state any thing about Williams. It is useless to spend any further consideration on such a case. The judgment below is affirmed ;

Judge Scott concurring.


author: Soott, Judge,

text:
    Maguire, Appellant, vs. Vice, Respondent.
    1. A confirmation by the act o£ congress of March 3, 1807, and a patent is a better legal title than a confirmation by the same act without a patent.
    2. A party, who, under the present practice, seeks equitable relief against a legal title, must set forth such a state of facts as would have entitled him to the relief under the old practice.

      Appeal from St. Louis Court of Common Pleas.

    This was an action commenced in January, 1852, for the possession of a lot in the northern part of the city of St. Louis, claimed by the plaintiff to be within what is known as the Bra-zeau reservation, when truly located.
    The following is deemed a sufficient statement of the facts .• On the 10th of June, 1794, the Spanish lieutenant governor conceded to Joseph Brazeau four by twenty arpens of land. On the 9th of May, 1798, Brazeau sold the land conceded, to Louis Labeaume, reserving for himself four by four arpens in the southern end of the tract. Plaintiff is the legal representative of Brazeau as to this reservation. In 1799, Labeaume obtained from the governor an extension of his tract acquired from Brazeau, and a survey of the whole was executed by Soulard. Plaintiff claims that this survey erroneously included the four by four arpens reserved by Brazeau in his deed to Labeaume. Defendant is tenant of the legal representatives of Labeaume. On the 22d of September, 1810, the board of commissioners confirmed 356 arpens to Labeaume or his legal representatives, and four arpens to Brazeau or his representatives, and ordered that the same be surveyed agreeably to the concession to La-beaume, and as respects the four arpens, agreeably to a reserve made in the deed frotn Brazeau to Labeaume. Surveys were not executed and approved until February 26, 1852,_ after the commencement of this suit. Patents for both tracts were isued on the 26th of March following. The patent to Labeaume or his legal representatives embraces the land in Soulard’s survey and the land in controversy. The patent to Brazeau is for four by four arpens immediately south of the land patented to La-beaume.
    A large mass of evidence was introduced in the court below bearing upon the question of the true location of the four by four arpens reserved by Brazeau in his deed to Labeaume, and this question was submitted to the jury under instructions from the court, the surveys and patents not being treated as conclusive of the true location. Questions were also made upon the Spanish law of prescription, the statute of limitations, and the law of estoppel; but as none of these questions are touched in the opinion which follows, it is thought useless to set out the facts and the evidence upon which they arose. There was a verdict for the defendant and a judgment thereupon, from which the plaintiff appealed. The cause was argued in this court at a previous term by Mr. Haight and Mr. Todd, for appellant, and by Mr. Field and Mr. B. H. Hill, for respondent. Judge Leonard was not then upon the bench.
   Soott, Judge,

delivered the opinion of the court.

This was an action in the nature of an ejectment, begun in January, 1852, by the plaintiff, Maguire, against the defendant, Yice, for a lot of ground situated in the northern part of the city of St. Louis, in which there was a judgment for the defendant.

1. The pleadings presented a case in which the mere technical legal title could be investigated. The title of the plaintiff was a confirmation under the act of congress of the 3d March, 1807, entitled “ An act respecting claims to land in the Territories of Orleans and Louisiana.” 'The defendant relied on a confirmation under the same act and a" patent thereon. It is evident that, in such a case, the judgment must be for the defendant. The very same titles that were set up in this case came before the Supreme Court of the United States at its last term, in the case of West v. Cochran, and the judgment was for the defendant, on the ground that'the patent was the better title, and that, until .the emanation of a patent, the legal title! did not pass from the United States by a confirmation under the-act of congress aforesaid.

2. Although our present practice act abolishes all distinctions-between legal and equitable actions, yet a party who seeks relief on a merely equitable title against a legal title, must, in his-pleadings, whether he is plaintiff or defendant, seth forth such* a state of facts as would have entitled him to the relief he-seeks, under the old form of proceedings. When a party, by. his pleadings, sets forth a merely legal title, he cannot,, on the trial, be let into the proof of facts which show that, having an>. equity, he is entitled to a conveyance of the legal titlei If he-wants such relief, he must prepare his pleadings with an eye to.^ obtain it, and this must be done whether he is seeking relief as-; plaintiff or defendant.

Judge Ryland concurring,

the judgment will be-affirmed..


author: Scott, Judge.

text:
    McMurtry, Respondent, vs. Glascock, Appellant.
    1. In a partition suit, judgment that partition he made is an interlocutory judgment from which no appeal lies.

      Appeal from Monroe Circuit Court.

      Glover & Richardson, for respondent,
    moved to dismiss the appeal on the ground that there was no final judgment.
   Scott, Judge.

This was a proceeding in partition, and after a judgment that partition be made was entered, an appeal was taken to this court. There is now a motion to dismiss the appeal, because there is no final judgment in the cause. The motion must be sustained. In partition suits, there are two judgments ; the first is that partition be made, which is interlocutory ; the other, which is entered upon the coming in of the jrjsport of the commissioners appointed to make partition, is that like partition be firm and effectual forever. As the judgment ■entered here was merely interlocutory and not a final one, the ¡appellant was not entitled to an appeal from it. ( Gudgell & Austin v. Mead et al., 8 Mo. Rep. 53.)

The other judges concurring, the appeal will be dismissed.


text:
    Louisiana & Middletown Plank Road Co., Plaintiff in Error, vs. Mitchell, Defendant in Error.

      1. No appeal or -writ of error lies from a voluntary non-suit taken upon the refusal of the inferior court to strike out an answer as insufficient.

      Error to Pike Circuit Court.

    The counsel were proceeding to argue this case upon its merits, when they were stopped by the court, it appearing that a nonsuit had been voluntarily taken below, upon the refusal of the court to strike out an answer alleged to be insufficient. Mr. Buckner appeared for appellant, and Mr. Broadhead for .respondent.
   Scott, Judge.

This was an action to recover call on a subscription for plank road stock. The defendant filed an answer to the plaintiff’s petition, and the plaintiff thereupon moved to strike out the answer of the defendant, which motion was overruled. The plaintiff then took a non-suit and sued out this writ of error.

1. Under the old practice, it was settled that a writ of error will not lie to the judgment of a court overruling a demurrer. (Palmer v. Crane, 8 Mo. Rep. 619.) Under the present practice act, a motion to strike out an answer for insufficiency is substituted in practice for a demurrer, and it has been held that a -writ of error or appeal will not lie on a voluntary non-suit taken upon the refusal of the court to strike out an answer as insufficient. (Schulter’s Adm'r v. Bockwinkle's Adm'r, 19 Mo. Rep. 647. Dumey v. Schoeffler, ante, p. 373.) The other judges concurring, the writ of error will be dismissed.


author: Leonard, Judge,

text:
    Grand Lodge of Masons, Respondent, vs. Knox, Appellant.
    1. In an action upon bonds given for the purchase money of land, the defendant may set up by way of recoupment damages for the removal and conversion otfixlures, without his knowledge or consent, after the contract of sale and before a formal transfer of the land and the execution of the bonds.

      •Appeal from Marion Circuit Court.

    This was an action upon two bonds for the payment of one thousand dollars each. The defendant, in his answer, set up as a defence that the bonds were given for part of the purchase money of what was known as the Marion College tract of land, with the buildings and improvements thereon situate, bought by him of plaintiff; that the contract of sale was made on the the 21st of September, 1849, and the bonds executed and delivered on the 29th of October following ; that at the time of the sale, “there -were within and permanently attached to, and constituting a part of a certain brick house called “ the chapel,” standing on said land, five several cases or closets, made and designed for book cases ; and that afterwards, and before the possession of said land and premises was delivered to the defendant, and before the delivery of said bónds to the plaintiff, the plaintiff, by her agents, without the knowledge or consent of the defendant, took out from the walls of said house, and carried away and converted to her own use the said eases or closets, and in taking the same out, injured, broke and mutilated the chimney, chimney boards, frames, casings, fire-places and plastering.” The defendant claimed a deduction .from the amount of the bonds sufficient to cover the damages sustained by a removal of the cases.
    At the trial, the defendant offered evidence that the terms of the sale of the college property were agreed on between the defendant and an agent of the plaintiff on the 21st of September, 1849, and that they were afterwards to meet in St. Louis and execute the writings ; that the defendant then returned to his residence in St. Louis county ; that on the 29th of October following, he met the plaintiff’s agent in St. Louis and executed the bonds sued upon in part payment for the property; that at the time of the sale on the 21st of September, there were in the chapel on the land five book-cases, which were seen by the defendant when he agreed to purchase the land, and that he did not again see the property until after the execution of the bonds sued upon ; and that in the mean time the book-cases, were removed under the authority of the plaintiff.
    There was conflicting evidence as to whether the cases removed were fixtures or not, one witness, (whose deposition, taken by the plaintiff, was read by the defendant to prove the removal,) stating that they were fastened to the wall and otherwise attached to the building, and another witness stating differently.
    After the defendant had closed his case, the Circuit Court, on motion of the plaintiff, excluded all the evidence offered by him, to which he excepted, and after a verdict for the plaintiff, and an unsuccessful motion for a new trial, appealed to this court. The case was orally argued by Mr. Knox, for appellant, and Mr. Broadhead, for respondent.

      Knox & Kellogg, for appellant,
    in their brief cited House v. Marshall, (18 Mo. Rep. 869,) and Taylor v. Maguire, {12 Mo. Rep. 317,) upon the point that the Circuit Court erred in excluding the evidence offered by the defendant below.
    Broadhead, for respondent.
    1. The defence set up is a claim for unliquidated damages, and is not the subject of set-off. 2. The answer does not sufficiently set out the terms of the contract of sale, and therefore evidence to prove a failure of consideration is out of place.
   Leonard, Judge,

delivered the opinion of the court.

The question to be decided here is, whether a purchaser of real property may set up, in diminution of the price, the value of fixtures upon the premises during the treaty and embraced in the sale, which the vendors subsequently, and before the completion of the transaction, removed and appropriated to their own use, without the consent or knowledge, and against the will of the purchaser. This claim having been set up in the answer and the evidence rejected upon the trial, the judgment must be reversed, if the rejected evidence ought to have been retained in the cause. The record does not show the ground upon whi.ch the court proceeded in striking it out; but it is argued' before us, for the plaintiff, that it is a claim for unli-quidated damages, and therefore not allowable as a set-off; and on the other side, that it is good by way of recoupment of damages, which is the matter we have considered, and upon which the cause has been settled here. This doctrine of recoupment, though of ancient origin, has been recently greatly extended in its application, and it may not be improper, therefore, on the present occasion, to go more at large into it than is necessary for the decision of this cause, and in doing so, to refer to the leading American cases, for the purpose of showing the application, extent and limitations of the rule.

The common law, confining every suit to the particular subject of litigation that gave rise to it, rigidly excluded all matters of set-off; but the English court of chancery, extending the narrow remedies of the common law, in order to prevent circuity of action and suppress multiplicity of litigation, introduced the principle into their system from the civil law, where it existed under the name of compensation. This method of settling cross demands in one suit, when once introduced, recommended itself so strongly by its natural equity and practical usefulness, that it was ultimately adopted, to a limited extent, both in England and the United States, in various statutes of set-off, and still further, in our own state, by the statute in relation to the failure of consideration. These acts concerning set-off, however, only recognize the right of persons mutually indebted to one another in ascertained amounts, under independent contracts, to set-off their respective debts by way of mutual deduction, so that in any action brought ’for the larger sum, the residue only should be recovered; and so excluded from their operation claims for unliquidated damages, occasioned either by wrongs done or obligations violated. These were left to the common law, and the same reasons that forced the doctrine, to a partial extent, into the statute law of the land, still continuing to operate, the old doctrine of recoupment has been recently greatly extended in its practical application.

In Dyer’s Rep. (2-6,) it is laid down in the reign of Henry VIII: “If a man disseize me of land, out of which a rent charge is issuant, which has been in arrears for several years, and the disseisor pay it, if the-disseisee recover in our assise, the rent that the disseisor paid shall be recouped in damages.”

Again, in Coulter’s case, (5 Rep. 2-31,) it is said : “ And as to the case of recouper in damages, in the case of rent service, charge or seek, it was resolved that the reason of the re-couper in such case is, because otherwise, when the disseisee reenters, the arrearages of the rent service, charge or seek would be revived, and therefore, to avoid circuity of action, and “ circuitus est evitandus, et boni judiéis est lites dirimere, ne lis ex lite oriatur, ” the arrearages daring the disseisin shall be recouped in damages.”

Pullen v. Stamforth, (11 East, 232,) was an action on a policy of insurance, upon a voyage to Russia, with a provision that, if the cargo were denied permission to be landed, the master should, on his return, receive in London 2,500 pounds. The outward cargo was denied landing, but the master, instead of returning direct, went by Stockholm and earned freight. The master claimed the 2,500 pounds, but the freight earned was recouped out of the sum agreed to be paid.

In Barbour’s law of set-off, (26,) it is laid down that “ there is a species of defence somewhat analogous to set-off in character, which a defendant, in some cases, is allowed to make, and which is called recoupment. This is where the defence is not presented as a matter of set-off arising on an independent contract, but for the purpose of reducing the plaintiff’s damages, for the reason that he himself has not complied with the cross obligations arising under the same contract. Thus, in an action to recover compensation for services rendered, the employer is entitled to show', by way of recoupment of damages, the loss sustained by him through the negligence of the person employed, and so in regard to a breach of warranty.” Recoupment, in its origin, we are told, (Sedgwick on Dam. 3d ed., 431,) was a mere right of deduction from the amount of the plaintiff’s recovery, on the ground that his damages were not really as high as he allegedand Yiner’s Abridgment, tit. “Discount,” (3, 4, 9, 10,) is referred to as authority.

The American cases, however, ah least in New York, Massachusetts, Alabama, and some few other states, now go the full length of declaring that all matters of counter claim, arising out of the same transaction, and not technically the subject of set-off, can be set off by way of recoupment of damages, provided the defendant has been properly apprised of the defence, and these cases will now be briefly referred to.

In a suit for the price of goods sold, (McAlister v. Reab, 4 Wend. 483,) and same case, (8 Wend. 109, in error,) the damages occasioned by a breach of the warranty were received in diminution of the price. Mr. Chancellor Walworth said: “ I consider the rule adopted on this subject perfectly just and equitable, when the defendant has notice of the defence intended to be set up, and calculated to do complete justice between the parties, without putting them to the expense of two suits, when one is much more likely to effect the object of fair litigation'. Indeed, if one of the parties is insolvent, it is the only way in which justice can be done ; at least as to small demands that will not bear the expense of a suit in chancery to obtain an equitable set-off.”

In a suit for the contract price of building a wall, (Jose v. Van Eps, 22 Wend. 155,) the defendant was allowed to diminish the amount of the plaintiff’s recovery by his own damages, sustained on account of the plaintiff’s failure to construct the wall according to his covenant.

In a suit upon a note for the price of wood sold, (Bollerton v. Purce, 8 Hill, 171,) the defendant was allowed, out of the price to be recovered, the damages sustained in the destruction of part of the wood by a fire against which the vendor had guarantied. Upon a motion for a new trial, Bronson, Justice, said It is not a question of set-off, as the plaintiff’s counsel seems to suppose, but of recoupment of damages. When the demands of both parties spring out of the same contract or transaction, the defendant may recoup, although the damages on both sides are unliquidated ; but he can only set-off when the demands of both parties are liquidated or capable of being ascertained by calculation.To the objection that the damages claimed did not spring out of the contract of sale, but arose under a collateral agreement to indemnify against fire, it was said “that, although there could be no recoupment by setting up the breach of %,n independent contract on the part of the plaintiff, here the bargain was one and the same.”

In Allan v. Whitney, (1 Hill, 484, and 1 Comst. 305,) in a suit for rent, the lessee set off the damages sustained by reason of the lessor’s representation that the leased premises embraced ground afterwards ascertained to belong to another, and the amount recouped was the rent paid for the use of the ground.

In a suit upon a bond for the price of land sold, (Van Eps v. Harrison, 5 Hill, 6,) the buyer set-off his damages occasioned by the vendor’s fraud in the sale ; and to the same effect is McCullough v. Cox, (6 Barb. Sup. Ct. Rep. 386.)

The same liberal doctrine has been adopted in Massachusetts. In a suit by a factor, (Dodge v. Tileston, 12 Pick. 329,) to recover against his principal, the defendant was allowed to set up the plaintiff’s negligence in selling the defendant’s goods by way of diminishing the damages ; and after reviewing the cases, the court said : “ The question, for a time, may have ranked in the class of legal uncertainties, but it appears to us at present to be settled on reasonable and satisfactory principles.”

In Hunt v. Otis, (4 Met. 464,) the plaintiff sued for his wages, and the company were allowed to set off their damages sustained by reason of the plaintiff’s leaving their service, contrary to an implied stipulation to give them four weeks’ notice of an intention to quit.

It is received also, in its largest extent, in Alabama. In Hatchett v. Gibson, (13 Ala. Rep., new series, 587,) a warehouseman sued for advancements made on cotton deposited with him, and the defendant was allowed to set off, by way of recoupment, the damages he had sustained by the destruction of his cotton through the plaintiff’s negligence. The court say: The contract between the parties was, that the latter should deposit his cotton in the warehouse of the former, and that the plaintiff' should advance on it, retaining a lien for his reimbursement. To this contract, the law tacitly annexed the stipulation that the plaintiff should take ordinary care in its preservation, and if he did not, would pay the defendant for any loss resulting from neglect. These several stipulations, although they may embrace distinct duties and obligations, constitute one entire contract. This is sufficiently shown by their mere statement, and the breach of any undertaking on the part of the plaintiff, by which the defendant sustained damage, would furnish a proper ground of recoupment'in the present action, which is brought to recover back the advances made by the warehouseman.”

Several of the states, however, have not yet carried the doc-, trine to the extent that it has been carried in the states to whose decisions we have referred, although the decisions in all the states are evidently tending rapidly that way, and the English courts, much less inclined than our own, to relax old rules, have, as yet, fallen far short of the American decisions. They now hold, however, contrary to their decisions prior to Basten v. Butter, (7 East, 479,) that, upon a sale or a special contract for work, at a specific price, the defendant may show, in diminution of the amount to be recovered, a breach of warranty or the failure of the contractor to do the work as required; and in Mandell v. Steel, decided in 1841, (8 Mees. & Welsb. 858,) Parke, Baron, addressing himself to this subject, remarked : “ Eortnerly, it was the practice, where an action was brought for an agreed price of a specific chattel sold with warranty, or of work which was to be performed according to contract, to allow the plaintiff to recover the stipulated sum, leaving the defendant to a cross action for breach of the warranty or contract; in which action, as well the difference between the price contracted for and the real value of the articles or of the work done, as any consequential damage, might have been recovered; and this course was simple and consistent.” “But after the case of Basten v. Butter, a different practice, which had been partially adopted before in the case of King v. Basten, began to prevail, and being attended with much practical convenience, has since been generally followed; and the defendant is now permitted to show that the chattel, by reason of the non-compliance with the warranty, in the one^ ease, and the work, in consequence of the non-performance of the contract, in the other, were diminished in value. It is not so easy to reconcile these deviations from the ancient practice with principle, in those particular cases above mentioned, as it is in those where an executory contract, such as this, is made for a chattel to be manufactured in a particular manner, or goods to be delivered according to a sample, where the party may refuse to receive, or may return, in a reasonable time, if the article is not such as bargained for; for, in these cases, the acceptance or non-return affords evidence of a new contract on a quantum valebat. It must, however, be considered that, in all these cases of goods sold and delivered with a warranty, and work and labor, as well as the case of goods agreed to be supplied according to a contract, the rule which has been found so convenient is established, and that it is competent for the defendant, in all of those, not to set-off, by a proceeding in the nature of a cross action, the amount of damages which he has sustained by breach of the contract, but simply to defend himself, by showing how much less the subject matter of the action was worth by reason of the breach of contract.”

How far this court would feel itself bound to go, in allowing counter claims, springing out of the same transaction, to be set up in diminution of the damages to be recovered, cannot now be determined. We are only to apply the law to the cases that come before us for judgment, and to that extent only are the decisions we make binding as authority upon ourselves or others. In the. present instance, however, we have no hesitation in declaring that the rejected evidence ought to have been retained and allowed to go to the jury. Of course, our opinion is predicated upon the supposition that the cases removed were fixtures embraced in the sale, and removed by the plaintiffs after the bargain and before the formal transfer of the property, without the knowledge and against the will of the purchaser, and appropriated to their own use. In House v. Marshall, (18 Mo. Rep. 368,) the damages sustained by a purchaser of land, by reason of the fraudulent representations of the seller during the treaty, were allowed to be set up in diminution of the price sought to be recovered ; and although the conduct of the present plaintiff, in removing the cases, acting, as we suppose he did, upon the ground that they were not fixtures, cannot be characterized as fraudulent, in any odious sense of the word, yet it resulted, if the facts were as the defendant maintains, in the same injury to his rights, and entitles him to the same remedy. The other judges concurring, the judgment is reversed and the cause remanded:


author: Scott, Judge,

text:
    Chouteau, Respondent, vs. Nuckolls, Appellant.
    1. A judgment rendered in a court of one county, in a cause taken by a second change of venue hy consent of parties from another county, though irregular, is not void, and a title acquired under it cannot be impeached in a collateral proceeding.
    2. Under the act of congress approved July 4, 1840, the liens of judgments and decrees rendered in the United Slates circuit and district courts within each state, continue for the same period as the liens of judgments and decrees of the state courts.
    3. The pendency of a writ of error in the supreme court of the United States does not affect the duration of the lien of a judgment of the circuit court.
    4. Under execution upon a judgment of a state court, real estate was sold to A., being at the time subject to the lien of a judgment of the United States circuit court. After the lien of the latter judgment expired, execution upon it issued, under which the same real estate was sold to B. Held, A.' had the better title.
    5. Smallness of consideration in a sheriff’s deed, of itself, under the circumstances of the case held not sufficient to affect a purchaser from the sheriff’s vendee, with notice of fraud in the title of his vendor.
    6. It being important to know whether a purchaser for value of real estate had notice of fraud vitiating the title of his vendor, the court trying the' case without a jury must explicitly find upon this point.

      Jlppcal from, Franklin Circuit Court.

    This was an action for the possession of several congressional subdivisions of land in Franklin county, both parties claiming title under Charles Gratiot, the patentee, the plaintiff under an execution sale upon a judgment of the United States Circuit Court for the district of Missouri, and the defendant under an execution sale upon a judgment of the Circuit Court of Warren county.
    The judgment of the United States Circuit Court against Gra-tiofc was.rendered April 29th, 1843, for the sum of $29,126 43, upon which execution issued dated Auguust 25th, 1847, under which the land in controversy was sold by the United States marshal on the 28th of September, 1847, and bid off by the United States of America for the sum of $1400, who, on the same day, received a deed from the marshal. On the 2d of July, 1851, the land was by the United States conveyed to the plaintiff for a consideration named in the deed, of $1862 05. The execution, which is made a part of the marshal’s deed, recites that it was issued pursuant to an order of the Circuit Court made on the 6th of October, 1846, in conformity with a special mandate of the Supreme Court of the United States.
    The judgment of the Warren Circuit Court was rendered April 22, 1844, for costs in an ejectment suit begun by Gra-tiot in Franklin county, taken by change of venue to Gascon-ade county, and thence by consent of parties to Warren county, where the plaintiff was nonsuited by reason of his failure to appear. Execution for the costs was issued against Gratiot, dated September 10th, 1844, and directed to the sheriff of Franklin county, under which the land in controversy, with other land, was sold April 21st, 1845, and James C. Robertson became the purchaser of the whole at the price of $3 25. He received from the sheriff a deed dated April 23d, 1845, in which the price bid was named as the consideration. On the 12th of May, 1852, Robertson’s administrator, after a sale according to law, conveyed the land sued for, with more, to JohnQ. Dickinson, for a consideration named in the deed of $86 95, who, on the 20th of November following, conveyed an undivided half to the defendant, Nuckolls, for a consideration named in the deed of $82 20.
    The plaintiff produced a witness who stated that, at the time of the sheriff’s sale to Robertson, he was living upon the Gra-tiot claim and wished to buy one forty acre tract; that he inquired of the sheriff and Robertson as to thé day upon which the sale would take place ; that he went to town on the day named by them, but found that the sale had taken place the day before. Another witness stated that, as he was trying, three or four days before the sale, with the assistance of his brother, to read an advertisement of the sale posted up at Walker’s mill, Robertson came up and tore it down, saying it was of no further use, and putting up some other paper in its place, the purport of which witness did not know, as he could not read. The same witness attended the sale, with a view to buy a tract adjoining the one upon'which he lived. He asked the sheriff to notify him when the tract he wanted was put up. The sheriff replied that he was selling it in larger parcels than witness wmnted, and besides, that he would he buying a law suit, as there was a judgment of the United States Court which was a lien upon the land. Witness recollected this fact when his attention was called to it, and did not bid on the land.
    There was evidence, (which was excepted to by the defendant,) that the plaintiff attended the sale by Robertson’s administrator, and gave public notice that the title was in him ; but the witness did not know whether Dickinson was then in hearing or not.
    Upon these facts, the Circuit Court, trying the case without a jury, declared to law to be that the sheriff’s deed to Robertson was fraudulent and void, and that it exhibited upon its face evidence of fraud which imparted notice to the defendant, and that the plaintiff’s was the better title. The defendant appealed.

      M. Frissell, for appellant.
    1. If plaintiff relied upon the fact that the deed from the sheriff to Robertson was fraudulent, he should have instituted a suit to set aside that deed. 2. Smallness of consideration in a deed has never of itself been considered sufficient evidence of fraud in any case. (Livingston v. Bryan, 11 Johns. 565. Den v. Zellers, 2 Halstead, 158. Cooper'!. Gilbraith, 8 Washington, 557.) Rut in this case, even if it had been sufficient to put the purchaser upon inquiry, he would have found an explanation, when he discovered that the land was sold subject to the lien of a judgment for some $30,000. (Fletcher v. Peck, 6 Crunch, 133. Bex-

      ter v. Harris, 2 Mason, 588.) The notice given by Chouteau at the administration sale amounted to nothing more than would the putting of his deed upon record. He merely claimed that bis was the better title, but said nothing about any fraud behind the apparent title of Robertson. 3. The lien of judgments and decrees of United States Circuit and District Courts within any state ceases at the same time as the lien of judgments of the state courts. (5 U. S. S. at Large, p. 393, sec. 4.) .

      Jones and Stevenson, for respondent.
    1. The judgment of the Warren Circuit Court, under which defendant claims title, was void, that court having no jurisdiction of the cause. 2. If this were otherwise, still the plaintiff has the better title under the judgment of the United States Circuit Court, that being the elder lien. 3. The sheriff’s sale at which Robertson purchased was void, because the land was sold in a body and not divided into parcels, as required by law. 4. The sale to Robertson was vitiated by fraud, and the smallness of the consideration named in the sheriff’s deed' was sufficient notice of it to all purchasers. 5. As to the lien of judgments of the United States Courts, see United States v. Duncan, 12 Illinois, 523. Clements v. Berry, 11 Howard, (U. S.) 398. Meyer v. Campbell. 12 Mo. Rep. 603.
   Scott, Judge,

delivered the opinion of the court.

1. There were no such irregularities in the suit which resulted in a judgment for costs against Gratiot in favor of Robertson, as would render it a nullity. The judgment was rendered by a court of general jurisdiction, to which the cause, it appears, had been transferred, with the consent of both parties. It was regularly in the Gasconade Circuit Court by a change of venue from Franklin county. From Gasconade, it was transferred to Warren county by consent of parties,-where the final judgment was rendered. This was, no doubt, erroneous ; but it is not for error alone that a judgment of a court of general jurisdiction can be treated as a nullity in a collateral proceeding. For error, a judgment must be reversed on appeal or writ of error, and if a party forgoes this method of correcting the errors of a judgment, he cannot afterwards set them up in avoidance of it, in a collateral action. If the party, by his conduct, had barred himself of his writ of error, the irregularity might have been corrected by the Circuit Court of Warren county, on motion.

2. The United States, on the 29th April, 1843, recovered judgment against Charles Gratiot, for the sum of $29,126 93, under which the land in controversy was sold on the 28th September, 1847. The fourth section of the act entitled an act in addition to the “ acts respecting the judicial system of the United States,” approved July 4th, 1840, declares that judgments and decrees hereafter rendered in the circuit and district courts of the United States within any state, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such state now cease by law to be liens thereon. The lien of this judgment expired then, in April, 1846, as by our law three years is the duration of the lien of a judgment.

3. The pendency of a writ of error in the Supreme Court of the United States, on the judgment against Gratiot, did not affect the duration of the lien. The affirmance of that judgment would not prolong its existence, nor would the pen-dency of the writ continue the lien until the time of affirmance. This we consider plain from the words of the act creating the lien.

4. Execution was issued on the judgment obtained in the Warren Circuit Court against Gratiot, and on the 24th September, 1844, was placed in the hands of the sheriff of Franklin county, and was levied on the following day, and the land-in controversy sold by virtue of said levy on the 21st April, 1845. From this statement of facts, it follows that the land was sold with the lien of the judgment of the United States upon it; but as the United States permitted the lien of their judgment to expire before the land was sold under their execution, the purchaser under the execution from the state court obtained the elder legal title.

5. The remaining question in the cause is, as to the fraud in conducting the sheriff’s sale. No doubt the evidence of fraud was sufficient to avoid the sale, as to Robertson, the purchaser ; but the land since has gone into the possession of those who claim that they are purchasers in good faith for value, without notice, and cannot be disturbed in the enjoyment of rights thus obtained. We do not consider that the' deed, on its face, bears any evidence of fraud. The smallness of the consideration is not of itself evidence of fraud. It is a circumstance that may be weighed along with others,, in determining the question of fraud, but of itself it does not-show fraud. The fact that the land was subject to the lien of the United States judgment may have had its influence on-the sale.

6. We consider the finding of the court insufficient on the-subject of fraud. The finding should have stated explicitly whether the defendant was affected with notice of the fraud of' those through whom he claimed the land in controversy.

We see no objection to the admission in evidence of the declaration made by Chouteau at the administrator’s sale. It is-not sufficient however that such declaration should have been made; it should also appear that notice of it came to the defendant.

With the concurrence of the other judges, the judgment will be reversed, and the cause remanded.


text:
    Hobein, Respondent, vs. Murphy, Appellant.
    1. The notice of execution required by the act of March 12,1849, to be gives to a judgment debtor, who is a non-resident of the county in which the land) to be sold is situated, is not necessary in a sale of mortgaged land under a. special fi. fa.

    2. The omission to give the required notice, even in those cases where it is necessary, would not ipso facto render the sale void, but the party injured would have relief according to circumstances. If the party whose duty it was to give the notice had acquired the title, the sale might be set aside in a direct proceeding, and the property restored. If a fair purchaser had paid the price and received a conveyance, the remedy would be confined to pecuniary damages against the wrong doer.

      Appeal from Franklin Circuit Court.

    This was a petition filed in 1854, praying the Circuit Court to set aside a sheriff’s deed to Murphy for land in Franklin county, sold under a special execution against the plaintiff upon a judgment of foreclosure of a mortgage. The sale took place October 3, 1850, and the sheriff’s deed was dated March 24, 1851.
    It was admitted that, at the time of the sale, the plaintiff was ¡a resident of St. Louis county, and had no notice of the issuing of the execution under which the sale took place. The Cir•cuit Court thereupon rendered judgment setting aside the sheriff’s deed, hut requiring plaintiff to refund to Murphy the .amount of his bid. From this judgment, Murphy appealed.

      JV. Holmes, for appellant,
    insisted that no notice was necessary, a sale under a judgment of foreclosure not being within the meaning of the act requiring notice ; also that the act did not apply where the land was in the same county where the judgment was rendered.

      Stevenson and Delafield, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

1. The notice of execution required by the act of 12th March, .1849, to be given to a judgment debtor, who is a non-resident .of the county in which the land to be sold is situated, is not ■ necessary in a sale of mortgaged land made under a special fieri facias.

Although the language of the statute is general, embracing i in its words all execution sales of land situated in a different ■ county from that in which the judgment debtor resides, we think it must be limited in its operation to cases falling within the mischief intended to be remedied; and that this is clearly not a sale of that character. Debtors frequently own land in different counties of the state, and creditors, not for the purpose of collecting their debts, but in order secretly to purchase their debtor’s land at a sacrifice, sent their executions to dis--tant counties upon errands of speculation, and b-uying there without competition, got landed property for a mere nominal consideration ; and to suppress such frauds, this notice to the debtor was required.

It is true that the debtor can always protect himself by paying what he owes ; but the legislature have thought proper to provide this additional protection against what they considered unfair conduct on the part of the creditor, and it is our duty to give proper effect to the provision, without, however, extending it to cases which, although perhaps within its words, are certainly not within its spirit. The defendant in this execution knew, for such was the general law, that this land must be sold under this judgment before any other property could be touched by it, and that the sale could take place only in the county of Franklin. The material fact, then, required by the legislature to be communicated to the debtor, in what county the creditor elected to subject his debtor’s land to execution, was already known to him, and therefore there is no reason for our considering such a case as falling within the requirements of the statute.

2. We think proper to remark here that we consider this provision as merely directory, even in the cases to which it is applicable, so that the omission to give the required notice would not ipso facto annul the conveyance, but proper relief would be administered to the party injured according to the circumstances of the case. If the party whose duty it was to give the notice had acquired the title, there would seem to be no reason why, in a direct proceeding against him for that purpose, the sale should not be set aside and the property restored ; and when this relief could not be had, on account of the interposition of a fair purchaser, who had paid the price and received the conveyance, the remedy would necessarily he confined to pecuniary damages, assessed against the wrong doer.

For the reason given, however, this judgment must be reversed ; but we shall remand the cause in order to give the plaintiff an opportunity of applying for leave to amend, if he so desires, and has any other ground that will entitle him to the relief he seeks. The other judges concurring, the judgment is reversed, and the cause remanded.


text:
    Hobein & Wife, Respondents, vs. Drewell, Appellant.
    1. Hobein v. Murphy, ante, affirmed.

      Appeal from Franklin Circuit Court.
    Action by the assignees against the maker of a note negó - tiable under the statute, but not assigned for value.
    The defence was, that the note was given for the purchase money of land conveyed to the defendant by a deed containing a covenant of general warranty, which passed no title.
    A judgment was rendered against Hobein before a justice of the peace on the 30th of September, 1843, a transcript of which was filed in the Circuit Court, January 1st, 1844. On the 25th of August, 1847, after the lien of the judgment had expired, execution issued, under which the land was sold, and a sheriff’s deed executed to the purchaser. This was the title acquired by the defendant.
    On the 1st of February, 1847, Hobein executed a mortgage .of the land, which was afterwards foreclosed, the land sold under a special fi. fa. and a sheriff’s deed executed to Murphy, .the purchaser. This deed the defendant offered in evidence, to .show in Murphy a title superior to the one acquired by him; (but it was rejected, the court having previously, in a suit by Hobein against Murphy, set it aside as void for want of notice of the execution to Hobein, who resided in another county. After a judgment for the plaintiffs for the amount of the note, the defendant appealed.

      JV. Holmes, for appellant.

      Helafield, Jones and Stevenson for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The objection to a recovery on the note here sued upon is, that it was given for the price of land sold, and that the purchaser acquired no title, the vendor having none himself.

The objection to the title was, that the party had acquired it under an execution sale upon a general judgment against the owner, who had previously mortgaged it to another, and that the mortgage had been foreclosed and the land sold under a special fi.fa. and bought in by a stranger, in whose hands the title was still outstanding.

The reply to this was, that the sale was void for want of the notice of execution required by the act of the 12th March, 1849, and upon this ground, the court rejected the sheriff’s deed under the fi. fa. when offered by the defendant, having previously so decided at the same term, in a direct proceeding by Hobein against Murphy, instituted to set aside the deed for that cause.

This point, however, has been decided otherwise here at the present term, reversing the judgment of the Franklin Circuit Court in the case referred to, and the present judgment must therefore also be reversed, on account of the rejection of this deed, and the cause .remanded.

The other judges concurring, it is so ordered.


text:
    Cahill, Respondent, vs. Ragan, Appellant.
    ¡L The mere fact that a party is a contractor on a railroad is not sufficient to make him, as a matter of law, prima facie liable for the board of hands employed on his sectioii of the road; especially when there is a sub-contractor.

      Appeal from Franklin Circuit Court.

    This was an action commenced before a justice of the peace, for the board of certain hands employed on section nine of the Pacific railroad, upon which the defendant and one Farrar were principal contractors. At the trial in the Circuit Court on appeal, there was evidence tending to show that one Clifford, who had quit work and run away, was a sub-contractor under Ra-gan and Farrar upon section nine. Plaintiff was what was called a boarding boss on this section. There was evidence tending to show that Clifford' employed the hands and boarding bosses ; but a witness testified that the defendant had said he was accountable for the wages of any hands who worked under Clifford. The defendant himself was seldom upon this section of the road while the work was going on. A witness testified that plaintiff had stated that Clifford. employed him to board the hands. Another witness stated that the hands were to receive $1 25 and $1 40 per day, and their board was to be paid out of their day’s wages ; and that the general custom was for the boarding bosses to look to contractors for the board of hands. There was no evidence whatever that the defendant employed plaintiff to board the hands, further than can be implied in what is before stated. Upon this state of the evidence, the court below gave, among others, the following instruction, being the first of those asked by the plaintiff : “ If the jury find that Ragan & Farrar had the contract on section nine of the Pacific railroad, and that plaintiff boarded the hands upon said section, they must find for plaintiff, unless the defendants show that Clifford was a sub-contractor, and they had no interest in the work done by plaintiff.” It seems from the record to have been contended by the plaintiff in the court below, that Clifford was not an independent subcontractor, but merely an agent of the contractors, to superintend the work, employ hands and boarding bosses. There was a verdict for the plaintiff.

      J. D. Stevenson, for appellant.

      C. Jones, for respondent.
   Scott, Judge,

delivered the opinion of the court.

As there was evidence in the cause that Clifford was a subcontractor under Ragan & Farrar, he was primarily liable for the board of the laborers employed on that portion of the road he had undertaken to build. The first instruction given for the plaintiff is based on the assumption that Ragan & Farrar were primarily liable, which is not warranted by the evidence. It was for the jury to determine who was primarily liable. Had Ragan & Farrar made themselves liable in the first instance for the board, the instruction would have been correct; but as the case was developed in evidence, the court was not warranted in throwing the burden of proof on the defendant. As it stood, it was the duty of the plaintiff to show that the defendant had made himself liable. The mere circumstance that Ragan & Farrar had the contract on section nine of the Pacific Railroad, was not sufficient to warrant the assumption that they were personally liable for the board of hands employed to work upon it, especially as there was evidence of a sub-letting by them.

With the concurrence of the other judges, the judgment will be reversed and the cause remanded.


text:
    Clohecy, Respondent, vs. Ragan, Appellant.
    1. It has been repeatedly held that the practice act of 1849, (except the 25th article,) does not apply to the trial in the appellate court of a cause appealed from a justice of the peace; hut the old practice must still he observed. No finding of facts is necessary. Declarations of law must he asked, and the material evidence preserved in a hill of exceptions; otherwise, the case will not he reviewed in the supreme court.

      Appeal from, Franklin Circuit Court.

    Action commenced before a justice of the peace for the board of hands employed on section nine of the Pacific railroad, tried in the Circuit Court on appeal without a jury. There is a bill o£ exceptions in the record, which contains a finding of the facts by the court, and a motion for a review setting out the evidence. The finding states that the hands were employed by one Clifford, who was ostensibly a sub-contractor under the defendant, the original contractor; but that in reality Clifford was only defendant’s agent or secret partner, and so the latter was liable in this action. No declarations of law were asked and none given. The defendant appealed from the judgment against him.

      J. D. Stevenson, for appellant.
    1. The facts found were not warranted by the evidence. 2. The facts found do not warrant the judgment. The hands alone were liable for their board, and no one else.

      C. Jones, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was a suit begun before a justice of the peace, and taken by appeal to the Circuit Court, where it was tried by the court sitting as a jury, proceeding in conformity to the provisions of the present practice act.

It has been repeatedly held by this court that, except so far as it relates to the matter of evidence, the present practice act does not affect justices’ courts. Indeed, this is the express enactment of the statute itself. It follows, therefore, that in the trial of appeals from justices’ courts, the circuit courts must conform to the mode of procedure in use prior to the passage of the present practice act. When the court tries the cause as a jury, instructions must be asked, as formerly, as declarations of the law of the case. No finding of the facts is necessary. Upon an appeal to this court, the evidence deemed material and the instructions given and refused must be preserved in a bill of exceptions. This case, then, stands as one under the old practice, in which a trial has been had by the court and no instructions asked. Under such circumstances, the cause cannot be reviewed in this court. The judgment, therefore, will be affirmed, with the concurrence of the other judges;


text:
    Van Doren, Respondent, vs. Relfe, Appellant.
    1. Under the new practice, the assignee of a claim for damages upon a broken covenant of seizin must sue in his own name. He cannot sue in the name of his assignor, the covenantee ; and it makes no difference that, in the instrument of assignment, the assignor authorizes suit to he brought in his name.

      Appeal from Washington Circuit Court.

    This was' an action brought in January, 1852, to recover damages for the breach of a covenant of seizin contained in a deed from Relfe to Vandoren for certain land, dated August 13, 1836.
    The land was within what is known as the Iron Mountain tract, confirmed to Joseph Pratte by act of congress of July 4, 1886, and Relfe had no title at the time of his conveyance to Vandoren. On the 8th of May, 1838, Vandoren conveyed all his property of- every description, including the land acquired of Relfe, and all bis rights of action, to trustees for tho benefit of creditors. In this conveyance, the trustees were by Van-doren appointed his " true and lawful attorneys irrevocable, in his name or otherwise, to ask, demand and recover and receive of and from all and every person or persons all goods, chattels, debts and demands, due, owing or belonging unto him, and in default of delivery or payment, to sue for the same.” In 1842, Vandoren, after regular-proceedings in the United States District Court in Ohio, received his discharge under the law of the United States for the relief of bankrupts, by virtue of which, all his property and rights of action were vested in assignees in bankruptcy.
    The Circuit' Court held that the beneficial interest in the claim for damages was in the trustees, unaffected by the subsequent proceedings in bankruptcy, and that by the terms of the deed to them, they could maintain a suit in the name of Vandoren. The defendant appealed.

      J.,W. JVoell, for appellant,
    among other points, insisted that the suit was not brought in the name of the proper party.

      M. Frissell, for respondent,
    insisted that the suit was properly brought. ' The covenant of seizin does not run with the land. The assignee of Vandoren could not sue,, for the reason that the breach was consummated before the assignment. The creditors of Vandoren are the “ real parties interested.” But it would be very inconvenient, if not impracticable, to bring the suit in their names. A case like this is provided for in the last, clause of section four of article thirty of the practice act of 1849.
   Scott, Judge,

delivered the opinion of the court.

The point relied upon by the defendant is, that this suit cannot be maintained in the name of Vandoren. There being no seizin in James H. Eelfe, of the land conveyed by him to Van-doren, the covenant of seizin contained in Relfe’s deed was broken immediately, and a right of action accrued thereon to Vandoren so soon as it was executed. So there was in Van-doren a right of action for unliquidated damages arising from a breach of contract. Vandoren afterwards assigned this right of action to trustees for the benefit of his creditors.

The requirement• of the present practice act is, that every civil action must be prosecuted in the name of the real party in interest, with some exceptions. Among these is that of a suit by the trustees of an express trust. Now hut for this exception, this suit must have been brought in the name of the creditors. There was no interest in Vandoren which would have warranted a suit in his name. This is not like those cases in which a note is expressly made payable to a person who holds that note for the benefit of others, as in the case of Harney v. Dulcher, in which it was held, that the payee of the note was the trustee of an express trust. (15 Mo. Rep. 89.) Here Vandoren is the mere owner of unliquidated damages which he has assigned away. He then is in the situation of the holder of an open account, who, after he assigns it away, cannot maintain an action upon it in his own name. (Mauro v. Walker, 18 Mo. Rep. 564.)

IE the right of action was not transferred to Vandoren’s trustees, then it continued in him until his bankruptcy, when it passed to his assignee. So, in whatever light the matter may be viewed, Vandoren has no right to institute suit in his own name. With the concurrence of the other judges, the judgment will be reversed.


text:
    McIlvaine, Appellant, vs. Harris, Respondent.
    1. Where a deed is executed for land, with a growing crop of wheat upon it, parol evidence is inadmissible to show that the wheat was reserved by the grantor, and afterwards, before harvest, verbally sold to the grantee; this being an interest in land within the statute of frauds.

      Appeal from Washington Circuit Court.

    This was an action commenced beEore^ a justice of the peace to recover the price of a crop of growing wheat alleged to have been sold to the defendant.
    At the trial in the Circuit Court on appeal, the plaintiff offered to show the following facts : Early in March, 1852, he and the defendant made a verbal agreement, he to sell and the defendant to purchase a tract of land upon which he then resided, possession to be given the ensuing fall. Very soon afterwards, the agreement was modified, and defendant allowed to take possession immediately of a part of the dwelling house, and such portions of the farm as plaintiff had not at the time in cultivation. Plaintiff had a field of wheat sown the fall before, and had sown oats that spring. On the 30th of March, plaintiff executed to defendant a general warranty deed for the farm, but at the time made-a reservation of his crops. He continued to use the parts reserved after the execution of the deed, and was allowed to cut and take away the oats without objection. Before the wheat matured, he sold it to the defendant on credit for the sum sued for.
    Upon the production by the defendant of the deed from the plaintiff, containing no reservations, all the evidence offered by the plaintiff was excluded. He excepted, took a nonsuit and appealed to this court.

      M. Frissell, for appellant.
    1. A verbal reservation of possession of all or part of the premises conveyed, for some limited time, is binding. So is a reservation of agrowing crop. 2. Mellvaine being in possession of the field upon which the wheat was sown, the delivery of the possession to defendant is a sufficient consideration to support the contract to pay for the wheat.

      D. E. Perryman, for respondent.
    1. The growing crop of wheat was a part of the freehold and passed by the deed. (Hilliard on Real Prop. 82. 1 Leigh, (Ya.) 294. 3 Johnson, 216. 3 N. I-Iamp. 503. 8 Watts, 394. 7 id. 378. 4 Kent’s Comm. 518, 519. 1 Greenl. Ev. 352.) 2. Parol evidence is not admissible to contradict a deed. (8 Mo. Rep. 161. Id. 391.)
   Scott, Judge,

delivered the opinion of the court.

1. Growing wheat is a part of the freehold and passes along with the land on which it is sown. The rule with regard to emblements, as stated by an accurate writer, is this : that, in contracts for the.sale of things annexed to and growing upon the freehold, if the vendee is to have the right to the soil for a time, for the purpose of further growth and profit of that which is the subject of sale, it is an interest in land, within the meaning of the statute of frauds, and must be proved by writing; but when the thing is sold in prospect of separation from the soil immediately or within a convenient and reasonable time, without any stipulation for the beneficial use of the soil, but a mere license to enter and take it away, it is to be regarded substantially as a sale of goods, and so not within the statute; although an incidental benefit may be derived to the vendee from the circumstance that the thing may remain for a time upon the land. (Greenleaf’s Cruise, vol. 1, p. 60.)

From the rule thus established, it is plain that growing wheat is an interest in land, and would pass by the deed which conveyed the land. ■ Now no principle is better established than that which forbids the introduction of parol evidence to contradict or vary a deed. The evidence, if admitted, would have shown that an interest did not pass by the deed, which the law says did pass.

But as growing wheat is an interest in land, a contract concerning it is within the statute of frauds and perjuries, and must be in writing. It would follow, therefore, that parol evidence of the sale of a growing crop of wheat would be inadmissible. The judgment is affirmed. The other judges concur.