text:
    Pipkin, Appellant, v. Allen et al., Respondents.
    1. Judgment reversed because the evidence did not support or justify the finding of the facts by the court.

      Appeal from Jefferson Circuit Court.

      JVbell, for appellant.
    . Frissell, for respondent.
   Ryland, Judge,

delivered tbe opinion of tbe court.

The main question in this case arises upon the finding of the facts by the court below. The parties here claim by derivative titles from the same source — David Boyle. There appears to have been a sale of the land in controversy made by Boyle to James Anderson in 1812, or prior thereto. The plaintiff read in evidence a deed from David Boyle to William Russell, dated 23d November-, 1813, and recorded in February, 1814. This deed purports to convey to Russell seven hundred and twenty arpens of land, be the same more or less, with the following recital: “ That is to say, that the said David Boyle claims a settlement and improvement right of twelve hundred and twenty arpens of land, situate on Sandy creek, in the late district (and present county) of St. Louis ; five hundred arpens of which have been selected by the recorder of land titles as being ratified by the laws of Congress ; which five hundred arpens the said David Boyle and Jenny Boyle his wife have sold to James Anderson ; the balance and remainder of said tract and claim of the land, being seven hundred and twenty arpens, situated on Sandy creek as aforesaid, which said balance of seven hundred and twenty arpens, be the same more or less, as the title thereof, or of any part thereof, is or may be eventually ratified, he (the said David Boyle) for the sum and consideration aforesaid, does by these presents grant, bargain and sell to the said Russell, his heirs and assigns, forever,” &c. James Anderson died in 1812, and before the date of this deed from Boyle to Russell. On tbe 28tb day o£ February, 1814, David Boyle and bis wife conveyed by their deed of that date to Adam Brown the identical land which Boyle had before sold to James Anderson. This is in proof ; for the witness, Benjamin Johnston, made a memorandum of the deed from Boyle and wife to Brown, in which he states that the boundaries contained in the deed to Brown are precisely the same which were contained in an instrument of writing of Boyle to James Anderson, taken therefrom by himself (Johnston) at the request of said Boyle and Adam Brown. Brown and wife afterwards conveyed this land to Samuel Hammond. Hammond and wife conveyed to William Russell, and he to his daughter Ann R. Allen. Johnston, the witness, stated that he did not recollect of any thing being said about-the cancellation of the sale from Boyle to Anderson. Said Brown was a justice of the peace, and witness understood he paid to Boyle for the land notes that had been left with him for collection. The only evidence having the least bearing on the subject of the rescission of the sale of the land by Boyle to James Anderson is that of Henry Cook, who stated that he knew Boyle and James Anderson; lived in the same neighborhood ; heard the sale of the Boyle land to Anderson spoken of in the neighborhood ; understood he gave a horse and cart for the land ; afterwards saw the horse and cart in possession of Anderson ; it was talked of in the neighborhood as a strange way to buy property ; never heard of Boyle buying back the land from Anderson. Witness was a boy at that time of about seventeen years old. Sometime after this, Anderson went to St. Louis and died. Witness did not know how long, but thinks it was several months, or may be more.

The court found that Boyle did sell the land to James Anderson. The court also found as a fact that this sale was can-celled. The plaintiff’s claim being derived from James Anderson’s purchase, when that was found to be cancelled, the plaintiff’s title was worthless — was destroyed. Then we see the importance to him of this finding. The plaintiff moved the court to review its finding ; tbe motion being overruled, be brings tbe case here.

The court below should have sustained the motion to review the finding in regard to the fact about the cancellation of the sale from Boyle to James Anderson. , The evidence in this record does not .justify or support that finding. When Boyle made his deed to Russell in November, 1818, the contract or sale between himself and James Anderson was manifestly in existence — in force. Anderson died before the date of that deed to Russell. How then became the contract cancelled or rescinded? The finding is not warranted in this particular by what appears to us of record. The judgment must be reversed and the cause remanded for further proceedings. We have thought it best not to say any thing about the other points in the case. In regard to the evidence of John Anderson, we can only say that the record does not show any particular objection to his testimony ; the objection was a general one — nothing specific; nor was any reason or cause assigned for its rejection. This is too general; amounts indeed to nothing. The law has pointed out the method of proceeding in order to perpetuate testimony ; it is necessary to follow substantially the requisitions, but we do not decide any thing in regard to the deposition. The finding of the facts upon which the plaintiff’s title rested erroneously requires us to reverse and remand the cause.

The judgment below is reversed and the cause remanded;

Judge Scott concurring.


source: Caselaw Access Project

author: Soott, Judge,

license: Public Domain

text:
    Coots, Appellant, v. Morgan’s Administrator, Respondent.
    1. The fact that a demand against an intestaie’s estate is made out against the intestate himself instead of against his estate, or the administrator, will not justify a refusal to hear evidence in support of such demand.
    2. No motion for a review or a new trial is necessary where a court improperly refuses to hear any evidence at all in support of a demand against an intestaie’s estate.

      Jlppeal from Bollinger Circuit Court.

    The following demand, properly verified, was presented to the county court of Bollinger for allowance against the estate of Albert Gr. Morgan, deceased, to-wit: “ October 25, 1850. Albert Gr. Morgan, to John Coots, Dr. To amount of cattle collected by him from James Smith, for the estate 'of William Morgan, deceased, $25 ; to amount collected by him from Barken Bennett, for the same estate, $10 ; total, $85.” Snider, administrator of said A. Gr. Morgan, had been previously notified by plaintiff Coots that the above demand would be presented for allowance “ against the estate” of the said Morgan. The county court having refused to allow the demand, an appeal was taken to the Circuit Court. In the Circuit Court, as appears from the bill of exceptions, plaintiff presented said demand “ and applied to introduce testimony to establish the same, but the court refused to permit him to do so, and entered up judgment against the plaintiff for costs.” This judgment was rendered at the September term, 1852. At the March term, 1855, motions for a new trial and for a review were made and overruled. Plaintiff appealed.
    JVoell, for appellant.

      jFrissell, for respondent.
    I. There is no appeal in this case, for the reason that it was not taken within a year after the decision appealed from. The motion for a new trial and review were too late, it being two years and a half after final judgment.
   Soott, Judge,

delivered the opinion of the court.

We always think it very strange, when a case is tried and decided in the court below, that it should not appear on what ground it was determined. We can not find out from the record, nor do the counsel on either side in this court know the ground on which this cause went off in the court below. If the evidence offered in support of the plaintiff’s demand was rejected because bis account was made out against “Albert Gr. Morgan” and not against bis estate, or tbe defendant Martin Snider, tbe administrator of A. Gr. Morgan, deceased, we are of opinion that it was error. When an account is contracted with tbe deceased himself, it is usual to make it out against him by name, and this seems to be tbe correct way. Of course it must appear, when suit is brought on tbe account, that it is brought against his executor or administrator. This sufficiently appears in tbe cause before us. Whether A. G. Morgan was personally liable for the demand of tbe plaintiff would depend on the evidence. If A. G. Morgan employed tbe plaintiff to perform services for a dead man’s estate, he is personally liable for them, unless tbe contract was so framed by the parties as to exclude bis liability. As to the point that tbe motion for a new trial and for a review was not made for years after tbe judgment, we do not consider that this was a case in which, according to tbe present practice, any motion for a review or new trial was necessary. Tbe court refused to bear any evidence, and gave judgment against tbe plaintiff for the costs. This was error, and the party was entitled to his writ of error on the record, as it appears that he excepted to the action of the court.

Judge Ryland concurring,

the judgment will be reversed and the cause remanded.

Judge Leonard absent.


author: Scott, Judge,

text:
    Coffman, Respondent, v. Harrison, Appellant.
    1. The practice act o£ 1849 did not change the rules of practice regulating proceedings upon appeals from justices of the peace.
    2. A due bill signed thus : “A., agent for B.,” will bind A. if he had no authority to bind B.

      •Jipjieal from, St. Francois Circuit Court.

    This was a suit commenced before a justice of the peace against A. W. Harrison, agent of the Mississippi Mining and Manufacturing Company, upon the following due bill or note: “ Due, Fiat River Mines, September 7, 1854, Daniel P. Coff-man, twenty-seven dollars and fifty-seven cents. [Signed] A. W. Harrison, agent for Miss. Mining & Man. Co., by A. B. McCreery, clerk.” Judgment having been rendered against defendant, an appeal was taken to the Circuit Court. In the Circuit Court, Harrison filed his affidavit denying the execution by himself of the instrument sued on. Evidence was introduced tending to show that Harrison authorized McCreery to execute said instrument; that the Miss. Mining & Man. Co. was a company located in the state of Wisconsin ; that defendant Harrison claimed to be the agent of the said company. No authority to act for said company was shown. The cause was tried by the court sitting as a jury. No declaration of the law applicable to the case and no instructions were asked. The court rendered judgment for plaintiff.

      JVoell, for appellant.

      T. O. Johnson

    cited Bryant v. Durkee, 9 Mo. 169; Jef-fries v. McLean’s Exec’r, 12 Mo. 538 ; Byars v. Doore’s Adm’r, 20 Mo. 284 ; Mott v. Hicks, 1 Cow. 518 ; Bockway v. Allen, 17 Wend. 40 ; Bay v. Cook, 2 Zabr. 843 ; Gillespie v. Wesson, 7 Porter, 455 ; Hite v. Kendall, 2 Pike, 328 ; 9 Alabama, 659.
   Scott, Judge,

delivered the opinion of the court.

This was an appeal from a justice’s court, and being tried by the court sitting as a jury, and no instructions being asked, any mistake as to the law in finding the verdict can not be inquired into here, as it does not appear what points were made in the court below. It has been repeatedly held, since the present practice act, that trials in the Circuit Court of appeals from a justice of the peace must conform to the practice which prevailed before the enactment of the statute concerning practice now in force, as that act expressly excludes justices’ courts from its operations, except in relation to the law of evidence. Whether the defendant had authority to bind the company was a question in the case. If he had authority to bind the company, and did only bind it, he is not liable. If he had no authority to bind the company, the note was drawn in a form which would bind himself. (Byars v. Doore’s Adm’r, 20 Mo. 284.) Such being the law, the note was properly admitted in evidence. This is only point saved in the case. The judgment will be affirmed;

Judge Ryland concurring ; Judge Leonard absent.


text:
    Murphy, by his next friend, Respondent, v. Murphy et al., Appellants.
    1. Section 38 of the act concerning wills (R. C. 1845, p. 1084,) renders the appointment of an executor void where he is also one of two attesting witnesses ; consequently he is a competent witness to prove the will.
    2. Where a minor sues by his next friend, the next friend is a competent witness in behalf of such minor plaintiff.
    3. Although an appointment of an executor would he rendered void by reason of the fact that such appointee is also one of two attesting witnesses, he may be appointed administrator with the will’ annexed.

      Appeal from Washington Circuit Court.

    This was a petition in behalf of John P. Murphy, by his-next friend Thomas C. Murphy, to establish the will of one Richard Murphy, which had been rejected by the county court. Upon the trial, the said Thomas C. Murphy, who had been appointed one of the executors of said will, and was also one of the two attesting witnesses, was admitted as a witness in behalf of the plaintiff to prove the execution of the will, and that the said R. Murphy was of sound and disposing mind.

      Berryman, for appellants.

      Frissell, for respondents.
   Scott, Judge,

delivered the opinion of the court.

Thomas C. Murphy was one of the two attesting witnesses to the will, and he was appointed executor. The 38th section of the act concerning wills, (R. C. 1845, p. 1084,) made this appointment void; consequently he was properly admitted as a witness to tbe execution of tbe will. As to tbe objection that be was a party to tbe proceeding, being tbe guardian ad litem of bis son John P. Murpby, wbo was a party to tbe suit, it is sufficient to observe that a guardian is no more a party to a suit, wbicb is conducted in tbe name of bis ward, than tbe attorney is a party wbo conducts a suit for an adult. He may be liable for the costs, but interest now does not disqualify a witness.

There is nothing in tbe idea that it should appear from tbe attestation of a witness to a will, that tbe testator was of sound and disposing mind. Tbe witness proves that fact when sworn to establish tbe will, but tbe statute does not require that he should state it in bis attestation. If tbe widow was dissatisfied with tbe will she should have renounced its provisions in tbe manner prescribed by law.

Tbe appointment of Tbos. C. Murpby as executor of tbe will being void, he being tbe subscribing witness to to it, on the establishment of tbe will he will not be entitled to act as executor. Tbe execution of tbe will will devolve on Catharine Murphy, tbe executrix. Should she renounce, there would, as we conceive, be no objection to tbe appointment of Thos. C. Murphy administrator with the will annexed. We do not pretend to say, however, that such a course would be obligatory on tbe probate court. They would be free to act as they thought best for tbe interest of the estate. (Murphy v. Murphy, 3 Kernan.)

Judge Ryland concurring,

tbe judgment will be affirmed;

Judge Leonard absent.


text:
    Phillips, Appellant, v. Russell’s Administrator, Respondent.
    1. Where a notice is given to an administrator that a demand will be presented for allowance against the intestate’s estate “ at the next term of the county-court of and for N. M. county, to he liolden in the town of N. M., in said county and state, on the 8th day of May, 1854,” the demand may be presented and allowed on the 9th day of May; if so presented and allowed, the administrator being present, the circuit court should not dismiss the cause on appeal on the ground that the demand was not presented on the 8th of -May.

      Appeal from New Madrid, Circuit Court.

    This was an application to the county court of New Madrid county for the allowance of a demand against the estate of Charles H. Russell, deceased. The following notice was given to the administrator : “ State of Missouri, county of New Madrid. To Mr. John Jackson, administrator of the estate of Charles H. Russell, deceased (and who was late of said county and state) : You will please take notice that I have a demand due and owing to me by and against the estate of the said deceased, amounting to in about the sum of two hundred and fifty dollars, for money and property placed and deposited, and for my use and benefit, in the hands of said deceased by William ,B. Etheridge, to be paid by said deceased to me, but which said ■'deceased never paid, but kept and retained the same, and appropriated the same to his own use, contrary to the trust reposed in him. At the next term of the county court of, in and for New Madrid county, in said state, to be holden in the town of New Madrid, in said county and state, on the 8th day of May, I shall proceed to enforce the said claim against said decedent’s estate, and apply for an allowance against said estate for the amount of said claim, at which time and place you can attend and oppose said claim if you see proper. [Signed] Shapley R. Phillips.” The said notice also contained a copy of the demand, as follows : “ The estate of Charles H. Russell, to Shapley R. Phillips, Dr. To money and property placed and deposited in the hands of said Russell by William E. Etheridge, to be paid by said Russell to said Phillips, hut which said Russell never paid to said Phillips, but kept the same and retained it and appropriated it to his own use ; which, with .interest, now amounts to about $250 — two hundred and fifty dollars.”
    ‘On the 9th day of May, 185-1, the said demand was present-ad and allowed “ for one hundred and seventy-five dollars.” '.The administrator was present and resisted its allowance. On appeal to the Circuit Court the defendant moved to dismiss the cause for tbe following reasons: “1st, tbe demand was not presented at tbe time mentioned in tbe notice; 2d, the demand was improperly presented, and tbe action improperly brought; 3d, the proceedings were illegally commenced and should have been dismissed.” This motion was sustained.

      Frissell, for appellant.

      JV'oell, for respondent.
   Scott, Judge,

delivered tbe opinion of tbe court.

We see no ground for dismissing this cause in the court below. If it was dismissed because tbe notice was to tbe first day of tbe term, and tbe cause was not taken up until tbe next day, tbe order of dismissal was erroneous. It appears that both parties were present when the cause was heard in the county court, and there was a judgment for tbe plaintiff. Tbe cause not being presented tbe first day, it would stand continued from day to day until it was beard. It was in tbe power of the defendant, by an application to tbe court, to have relieved himself of a burthen of attending during tbe whole term. The court might have fixed a day and compelled the plaintiff to reasonable terms, so as to prevent tbe unnecessary harassing of administrators. Tbe statute only requires a notice to the next term of tbe county court; so, by tbe notice given by the plaintiff', tbe defendant was not in a worse condition than if tbe notice bad conformed to tbe words of tbe statute ; for if tbe notice bad been to tbe next term of tbe county court, it will not be maintained that tbe plaintiff might not on any day of tbe term have presented his demand.

We consider tbe notice of tbe demand sufficient. It contained a copy of tbe demand. Section 15 of article 8 of the act concerning administration provides that the county court shall hear and determine all demands in a summary way without tbe form of pleading. Thé nature of tbe claim was described in such a way as enabled tbe defendant to prepare a defence against it.

Judge Ryland concurring,

tbe judgment will be reversed and tbe cause remanded;

Judge Leonard absent.


author: RylaND, Judge,

text:
    The State, Respondent, v. Slate, Appellant.
    1, A person may, since the act of March 12, 1849, (Sess. Acts, 1849, p. 54,y be indicted, for selling intoxicating liquors, as a dram-shop keeper, without a license, in any quantity less than ten gallons.

      Appeal from Jefferson Circuit Court.

    Pipkin, for appellant.
    I. The court erred in admitting the testimony of Sweeny ; (State y. Weiss, 21 Mo. 498 ;) also in giving instructions 1 and 2 for the State, and in refusing defendant’s instructions. The indictment should have been brought against Slade for violating the law as a grocer. Being indicted as a dram-shop keeper, and the proof showing no violation of that law, defendant should have been acquitted. This verdict will be no bar to an indictment for violating the law as a grocer.
   RylaND, Judge,

delivered the opinion of the court.

The defendant was indicted for selling intoxicating liquors— whisky and brandy — as a dram-shop keeper, in a quantity less than ten gallons, to-wit, one glass and one pint of each, and permitting the same to be drank at the place of sale, without license.

There was a trial, and the defendant was found guilty. He moved for a new trial, which being overruled, he excepted, and brings the case here by appeal. The bill of exceptions shows the following evidence given in the case. Jacob Sweeny testified that within one year prior to the 25th day of November, 1855, defendant sold to him whisky in quantities not less than one quart, and permitted the same to be drank at the place of sale in Jefferson county, Missouri; that he bought not less than a quart at any time, and paid therefor fifteen cents ; and that said defendant did not sell in any less quantity than one quart.” The defendant objected to this evidence, and saved his exception. This was all the evidence in the case. The defendant asked tbe three following instructions, which the court refused to gire: “1. If the jury believe from the evidence that defendant did not sell in quantities less than one quart, they will acquit. 2. Though the jury may believe that defendant sold by the quart, and permitted the liquor to be drank at the place of sale, they will acquit under this indictment. 8. To entitle the State to a verdict against the defendant, she must prove that defendant sold intoxicating liquor in less quantity than one quart.”

The act of 1845 defines the dram- shop keeper to be a person “ permitted by law, being licensed according to the provisions of the act, to sell intoxicating liquors in any quantity less than a quart.” He is allowed to suffer the liquors sold to be drank at the place of sale. The grocer can not sell less than a quart, and he can not permit the liquor sold to be drank at the place of sale. The act of 1849 permitted the dram-shop keeper to sell any quantity not exceeding ten gallons, and repealed so much of the act of 1845 as was repugnant thereto. Now here the defendant sold one quart, and never less than a quart. He took the separating quantity of the act of 1845 between the grocer and dram-shop keeper. But he forgot the act of 1849 ; that made him a dram-shop keeper if he sold under ten gallons and suffered it to be drank at the place of sale, as he could do under the act of 1845. So his instructions are clearly not the law. The court told the jury that “ the selling of intoxicating liquors in a quantity less than one quart, or the selling of any greater quantity, to-wit, by the gallon, and permitting the same to be drank at the place of sale, is a selling as a dram-shop keeper under the law. 2. Therefore if they find from the evidence that defendant sold intoxicating liquor within one year before last November (the term when the indictment was found) in any quantity and permitted the purchasers to drink it at his counter, he is guilty as charged, although the quantity sold may not have been less than one quart.” From the evidence, the jury were bound to find the defendant guilty. He sold a quart— a quantity under ten gallons ; he permitted it to be drank at his place of sale. He showed no license authorizing it. It is not like the State v. Weiss. We thought in that case the pleader intended the indictment to be against Weiss as a grocer, and the proof was against him as a dram-shop keeper — a variance between the charge and proof. But here the indictment is against the defendant as a dram-shop keeper without license, and the proof sustains the charge. Let the judgment be affirmed ;

Judge Scott concurring.


text:
    The State, Appellant, v. Miller, Respondent.
    1. In an indictment under the act to license and tax merchants, (K. C 1845, p. 737,) for dealing as a merchant without a license, it is not necessary to state the name of the person to whom, or the price for which, the merchandise was sold.

      •Appeal from Stoddard Circuit Court.

    The defendant, Miller, was indicted for dealing as a merchant without a license. The indictment is as follows : “ The grand jurors, &c., do present that John Miller, late of the county of Stoddard, in the said state of Missouri, on the first day of March, A. D. 1854, at the county of Stoddard, in the said state of Missouri, did then and there, at a certain store, Stand or place occupied for that purpose, deal in the selling of goods, wares and merchandise, not the growth, produce or manufacture of the state of Missouri; to-wit, he, the said John Miller, did then and there sell one-half pound of black pepper, one-half pound of alspice, and ten pounds of sugar, without then and there having any license first had and obtained, authorizing him so to do, against the peace and dignity,” &c.

      H. A. Clover, (circuit attorney,) for the State.
   Scott, Judge,

delivered the opinion of the court.

This is an indictment for dealing as a merchant without' license, omitting to state the price of the merchandise sold, and the person to whom it was sold. The indictment was quashed, we suppose, for that reason, as from the generality of the cause contained in the motion to quash we are left to conjecture as to the precise motive which influenced the action of the court. We have frequently condemned the practice of quashing indictments prevailing in the circuits, where the motion to quash is substituted for a demurrer. This court will not reverse a judgment of the Circuit Court refusing to quash an indictment, as it is discretionary with the court whether it will quash or leave the party to his demurrer, which latter course has at least the advantage that it renders unnecessary a bill of exceptions. The point on which this cause seems to have turned in the court below, as above stated, was decided by this court in the case of the State v. Ladd, 15 Mo. 430. The doctrine in that case has since been repeatedly recognized and acted upon, which is, that in an indictment for selling .liquor without license, the name of the person to whom sold and the price are immaterial. The other judges concurring, the judgment will be reversed, and the cause remanded.


author: HylaND, Judge,

text:
    Coughlin, Respondent, v. Lyons & Sullivan, Appellants.
    1. The technical rules of pleading should not be enforced in suits before justices of the peace ; hence where the statement of the cause of action filed with the justice is in the following form : “ 1855. Feb. 20. L. & S. to P. J. C., Dr. To 41 hams, 4644 lbs. at 10 cents, $46 45; to 2 b’ls. whisky, 77| gal’s, at 28 cts., $21 70 ; total, $68 15 j” held, that the cause of action was made good by proof that the articles enumerated, being the property of' the plaintiff, P. J. C., had been wrongfully seized, at the instance of the defendants, L. & S., in an attachment suit against a third person.

      Appeal from St. Louis Law Commissioner’s Court.

      Hart & Jeclso, for appellants.
    I. This action will not lie under the circumstances. The appellants had never received any part of the said goods into their possession or under their control. They were in the custody of the law, and no part of them had been converted in any shape by the law ; but were, and remained, in the custody of the officer of the law. (Willett v. Willett, 3 Watts, 277; Sergeant v. Strieker, 1 Harr. 464.)

      tft. J. P. Garesché, for respondents,
    cited Floyd y. Whyley, 1 Mo. 458 ; Johnson v. Strader, 3 Mo. 254; Sparks v. Pur-dy, 11 Mo. 219 ; Hines v. McKinney, 3 Mo. 270 ; Mathew y. Johnson, 9 Mo. 232.
   HylaND, Judge,

delivered the opinion of the court.

This court does not apply the formal technical rules of pleading to suits before justices of the peace ; nor will we regard the nice distinctions separating forms of actions as formerly known to common law courts to the proceedings of justices’ courts. The justice has the right to require of the plaintiff, when the parties appear before him, a brief verbal statement of the nature of his demand. ■ This statement, like the defendant’s de-fence, is not reduced to writing ; the pleadings are not put down formally, but the parties know the matter in dispute, and can have it tried between them.

When the suit is founded on an instrument of writing, it must be filed with the justice ; and when founded on an account, a bill of the items must be filed before the justice issues his process. The process is general, to answer the complaint of the plaintiff.” Now here the account is as follows : James Lyons and Edward Sullivan, partners as Lyons & Sullivan, to Peter J. Coughlin, Dr. 1855, Feb. 20, to 41 hams, 464J lbs., at 10 cents, $86 45 ; 2 bbls. whisky, 77J gals., at 28 cts. $21 70 ; total, $68 15.” The proof shows that the defendants caused an officer of the law, a constable, to take this property — the hams and whisky — from the plaintiff’s possession (the plaintiff also was proved to be the owner of the property) at the suit of the defendants against a third person, and to remove the same, and that the constable still ha,d the property in his possession. Now the defence is that this is an action for money had and received; that the amount shows it for goods, wares, and merchandise sold by plaintiff to defendants, and the proof does not support it. We consider that there is nothing in this objection. The action may be considered as trespass or trover, according to the nature of the real transaction, and the plaintiff may waive the tort and sue for so much money had and received. To this it is said that the suit for money had and received, to be sustained, there must be proof of the sale of the property taken and money received therefor. In courts of common law jurisdiction, where actions were separated into various kinds, this doctrine was recognized ; but here there is no necessity for it, for this action itself may be considered as trover, or as trespass, and there is no necessity of the application of the doctrine about money had and received to plaintiff’s use.

In proceedings before justices’ courts it is common to make out such account or accounts in such a manner, and when we consider that the defendants have the right to require the justice to make the plaintiff state verbally the nature of his complaint, there is no room for suspicion or misapprehension on the part of the defendant. The court properly refused the instructions asked by defendants. The defendants had no right to "make the constable take the plaintiff’s property to pay the debt of a third person due to them. Upon the whole case, the judgment is affirmed ;

Judge Scott concurring.


text:
    Tevis, Appellant, v. Tevis et al., Respondents.
    1. A promissory note was executed in the following form : “ Two years after date, I promise to pay to the order of Tevis, Sons & Co., $4000, for value received, with interest as per agreement from date. [Signed] Henry L. Tevisthis note was assigned in the name of Tevis, Sons & Co. Held, in a suit by the assignee against the members of the firm of Tevis, Sons & Co., in which the defence relied on was that Henry L. Tevis, the maker of the note, was a member of the partnership firm of Tevis, Sons & Co., and had executed the note in question and endorsed it in the name of the firm for the purpose of raising money for his individual use ; that it was erroneous to instruct the jury that “the form of the note sued on imports that Henry L. Tevis was the principal debtor, and that Tevis, Sons & Co. were his sureties.”

      Appeal from St. Louis Circuit Court.

    The following instructions were given upon tbe motion of defendant: “ 1. Henry L. Tevis had no authority by virtue of being a member of the firm of Tevis, Sons & Co. to give the endorsement of that firm as a security for money lent to him individually ; and if they find that he did so give it in this instance, and that the plaintiff had notice thereof, then the plaintiff can not recover against any members of the firm of Tevis, Sons & Co., except such as shall have been shown by express evidence to the satisfaction of the jury to have authorized or assented to such endorsement. 2. If the jury find from the evidence that at the time when Henry L. Tevis delivered to the plaintiff the note sued on in this action, the said plaintiff knew or suspected, or had any reason to suspect, that the said Henry L. Tevis was borrowing the money for his own use, and giving to the said plaintiff the name of the firm of Tevis, Sons & Co. as a security therefor; and if they further find that such was really the object of the said Henry L. Tevis, and that no portion of the said sum of money came to, or was applied to, the use of the said firm of Tevis, Sons & Co. ; and that the said note was drawn up and endorsed in the handwriting of said H. L. Tevis without the knowledge or consent of the firm; then said note is. not binding against any member of said firm not knowing or consenting to the same. 3. It devolves upon the plaintiff to prove that the firm of Tevis, Sons & Co. received or used the money for which the note was given in the mentioned instruction number 2. 4. The form of the note sued on in this action imports that Henry L. Tevis was the principal debtor, and that Tevis, Sons & Co. were his sureties. The jury is instructed that Henry L. Tevis had no authority by virtue of being a member of the firm of Tevis, Sons & Co. to give the endorsement of that firm as a security for money lent to bim individually.”
    The court, on its own motion, gave the following instruction: “ 1. If Henry L. Tevis, as a member of the firm of Tevis, Sons & Co., applied to the plaintiff for a loan to the firm of Tevis, Sons & Co. upon the name and security of said firm, and if the plaintiff lent the money to said Henry upon the name and security of said firm, and the said Henry gave the note sued on, endorsed by him in the name of the firm as security for said loan, then the firm of Tevis, Sons & Co. are liable thereon, unless the plaintiff knew, or had reason to suspect that the money was borrowed by said Henry for his individual use.”
    The court overruled plaintiff’s motion to give the following instructions : “1. If Henry L. Tevis, as a member of the firm of Tevis, Sons & Co., applied to the plaintiff for a loan upon the name and security of said firm, and the plaintiff loaned the money to said Henry upon the name and security of said firm, and that said Henry gave the plaintiff, as security for said loan, the note sued on in this case, the said firm of Tevis, Sons'& & Co. are liable, unless the plaintiff knew, or had reason to believe, the money was gotten by said Henry for his individual benefit. 2. If the jury find from the evidence in the cause that H. L. Tevis, on the 1st day of July, 1881, executed his note to Tevis, Sons & Co., and said H. L. Tevis, one of the members of the firm of Tevis, Sons & Co., afterwards assigned said note to plaintiff, using the name of Tevis, Sons & Co. in said assignment, and when said note fell due said H. L. Tevis was insolvent, so that any suit against him or .his estate would have been unavailing, that the plaintiff is entitled to recover against the firm of Tevis, Sons & Co., unless they show there was no consideration for said assignment from plaintiff to said Tevis, Sons & Co. 3. That the note and endorsement read in evidence is prima facie evidence of the liability of the defendants, and the burden of proof is on them to show that no part of the loaned money came to their hands.”
    Plaintiff took a non-suit, with leave to move to set the same aside. The court overruled a motion to set aside the non-suit.

      JV. D. & G. P. Strong, for appellant,
    cited 1 Pars, on Oont. 158, 160 ; Etheridge v. Binney, 9 Pick. 272 ; Whitaker v. Brown, 16 Wend. 505; Yallett v. Parker, 6 Wend. 615 ; Swan v. Steele, 7 East, 210 ; Onondago County Bank v. De-puy, 17 Wend. 47 ; Catskill Bank v. State, 15 Wend. 364 ; 5 Pet. 529 ; Coll, on Part. § 401-6, 447-8.

      T. T. Gantt, for respondents.
    I. The instructions asked for by plaintiff were properly refused.
    II. The instructions given upon motion of defendants were correct expositions of the law. The form of the note did import that the firm was surety for Henry L. Tevis. A note of this firm was declared to have this effect in the case of Livingston v. Roosevelt, 4 Johns. 272.
    III. The instruction given by the court, of its own motion, . was.legal .and proper. (Livingston v. Hastie, 2 Caines, 246 ; Dob v.-Halsey, 16 Johns. 34; Eoot.v. Sabin, 19 Johns. 157; Rogers v. Batchelor, 1 American Lea. Cas. 267, 303.)
   Soott, Judge,

delivered the opinion of the court.

This was a suit on an assigned note by the assignee. The following is a copy of the instrument sued on: “St. Louis, July 1st, 1851. Two years after date, I promise to pay to the order of Tevis, Sons & Co., four thousand dollars, for value received, with interest as per agreement from date. [Signed] Henry L. Tevis.” [Endorsed] “ Pay to Rev. John Tevis. Tevis, Sons & Co.” Henry L. Tevis was the maker of the note, and the suit is against Tevis, Sons & Co., as the assignors of it, the maker of the note being insolvent. Henry L. Tevis drew and assigned the note to the plaintiff, being a member of the firm of Tevis, Sons & Co. The defence was that the note was not a partnership security ; that it was given by H. L. Tevis for money borrowed for his individual use, with the knowledge of tbe lender, wbo is the plaintiff. Among other instructions the court gave the following, at the instance of the defendant, viz : “ The form of the note sued on in this.action imports that Henry L. Tevis was the principal debtor, and that Tevis, Sons & Co. were his sureties. The jury is instructed that Henry L. Tevis had no authority by virtue of being a member of the firm of Tevis, Sons & Co. to give the endorsement of that firm as a security for money lent to him individually.”

It seems to us that this instruction virtually determined the controversy. The note, without any extrinsic evidence, imports that H. L. Tevis made it to Tevis, Sons & Co., and that they assigned it to the plaintiff, thus making H. L. Tevis primarily liable, and Tevis, Sons & Co. liable as assignors in the event of his insolvency. The form of the note does not import that Tevis, Sons & Co. were sureties ; it only shows that between the maker and the payees there existed the relation of creditors and debtor. The note having been given by H. L. Tevis to Tevis, Sons & Co. is prima facie evidence that money was loaned by Tevis, Sons & Co. toH. L. Tevis. (2 Stark. Ev. 182.) It is alone the knowledge of the extrinsic facts which can enable one to believe that Tevis, Sons & Co. were made securities for H. L. Tevis. Present the note to one who is ignorant of all the external circumstances which influence it, and it will never occur to him that Tevis, Sons & Co. were the sureties of H. L. Tevis otherwise than as assignors. But let him understand that H. L. Tevis was a member of the firm of Tevis, Sons & Co., that he drew the note and assigned it in the partnership name and delivered it to the plaintiff, then there are circumstances from which a conclusion may be drawn that Tevis, Sons & Co. were intended to be made the sureties of H.' L. Tevis. We do not consider the case of Livingston v. Roosevelt, 4 John. 257, as maintaining that where a member of a firm draws a note in his own name, payable to the firm, and assigns it in the partnership name, that the assignee of such note is presumed to have taken it with the knowledge that it was for the maker’s individual debt. That case only goes the length that under such circumstances, so indirect a mode o? doing that which might have been done in a much simpler way, if it was really a partnership transaction, is evidence in support of the defence that the debt thus, secured was the individual debt of him who executed such a security. But the instruction under consideration, in order to be sustained, must rely on some other case than that cited ; for it would derive support from that case, though it should not appear that the maker of the note was a member of the firm to whom it was made payable ; that is, the instruction would have the conclusion drawn that there was a suretiship created by the note, though it did not appear that H. L. Tevis, the maker, was a 'member of the firm of Tevis, Sons & Co. This fact could not be learned from the face of the note, and yet the case from Johnson is relied on, which goes upon the supposition that the maker of the note was a member of the firm to whom it was payable. By transposing the two propositions contained in this instruction — and such transposition does not at all affect their sense — it is plain that after it was given the jury had nothing to do but to sign a verdict.

The instruction given by the court, with the exception of the last clause, which rendered it obscure if not unintelligible, set the ease of the plaintiff in a proper light before the jury, and wo see no error in refusing those asked by him, as one of them was only designed to state in confused terms what should have been put in a plain way to the jury. Had the instruction given by the court been unexceptionable in the particular stated, there would have been no necessity for- it. The second instruction asked was improper, because although every fact assumed in it was true, a verdict for the plaintiff should not have followed, unless the defence set up had been negatived. The instruction asks for a verdict precisely as if there was no defence in the case, though the existence of that defence was entirely consistent with the state of the facts mentioned in the instruction. The circumstances and the evidence in the case did not warrant the giving of the plaintiff’s last instruction, and there was no coherence, as we can see, between the propositions or matters contained in it.

We "do not well see what is meant by the terms “ express evidence” in the defendant’s first instruction. It is certainly a very unhappy expression for an instruction to a jury. We do not know what idea was intended to be conveyed by it. Certain it is that the fact alluded to might have been established by circumstantial evidence, or its existence might have been implied from other facts.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded ;

Judge Leonard absent.


text:
    Peterson & Wife, Appellants, v. Laik, Respondent.
    1. Where in an action in the nature of an action of ejectment the defendant in his answer denies the co-tenancy alleged hy plaintiff, no stronger evidence of an ouster will he required of plaintiff than in a case where no co tenancy exists.
    2. Where a minor executes a deed of conveyance of land, and after attairing majority conveys the same land to a third person, the second deed is a dis-affirmance of the first. This is a question of law, and should not he submitted to a jury.

      Appeal from St. Louis Land Court.

    Touissant Tourville died in the year 1833, owning the land in controversy. He left eight children him surviving. Paschall and Catherine, two of said children, by deeds dated respectively April 1,1834, and April 10, 1834, conveyed their shares (two-eighths) to Pierre and Charles Tourville. Defendant claims title through mesne conveyances from said Pierre and Charles Tourville. By deed dated April 26, 1854, the said Catherine, having then attained her majority, and her husband, conveyed to Mrs. Peterson, one of plaintiffs, the share (one-eighth) that had been previously conveyed by her by the deed dated April 10, 1834. This deed contained no reference or allusion to the said deed of April 10, 1834. In the year 1850, Pascball, being then of age, conveyed to Oblarles Tourville the interest previously conveyed by him by deed dated April 1st, 1834. This deed contained no allusion or reference to the said deed of April 1st,' 1834. Charles Tourville by deed dated June 26, 1854, conveyed said one-eighth to Mrs. Peterson, one of plaintiffs.
    The plaintiffs moved the court to instruct the jury “ that the deed of a minor.under the age of twenty-one years is voidable, and that a subsequent deed duly executed for same land is such an avoidance.” The court refused to give said instruction, and in lieu thereof gave the following : “ 1. The law is that if Paschall and Catherine Tourville respectively, when minors, made deeds of conveyance of their interest in their father’s real estate, (the land in question,) such deeds were voidable only, not void ; and after coming of age respectively, they had power to avoid them respectively by making other deeds for that purpose and intended to have that effect; and it is for the jury to determine in this case whether or no the deeds offered in evidence from said Paschall and Catherine respectively were for that purpose and intended to have that effect.” The court also, on motion of defendant, gave the following-instructions: “2. If the jury believe that no division has ever been made between the heirs of Touissant Tourville, sr., of the land in question, or a partition had, and that the plaintiffs claim only an undivided share in the same, and are tenants in common with defendant, they will find for the defendant, unless the jury believe that defendant has either actually put the plaintiffs out of possession or hindered and prevented them from entering into possession of that part of the land which they, the plaintiffs, claim to hold in common with the defendant. 3. If the jury find that Catherine and Paschall were minors at the time of the execution of their first deeds respectively to Pierre and Charles Tourville, but never disaffirmed those acts and deeds when they became of age, then the original deeds hold good notwithstanding the infancy of the grantors ; and deeds executed subsequently to their becoming adults, conveying away the same estate conveyed in such original deeds executed during infancy, not expressly disaffirming those deeds, are not conclusive as to disaffirmance; and it is for the jury to determine from the terms of such deeds and other evidence whether the same were intended as a disaffirmance or not.”

      Morehead, for appellants.
    I. The court erred in refusing the instruction asked by plaintiffs.
    II. It was error to submit the question of disaffirmance to the jury, It was a question of law. (1 Mo. (58 ; 7 Mo. 607 ; 1 Bibb, 283 ; 6 Mo. 267, 279 ; 16 Mo. 62 ; 12 Mo. 549 ; 19 Mo. 65 ; 21 Mo. 25 ; 10 Pet. 59 ; 11 Johns. 539 : 14 Johns. 124.)
    III. The second instruction was erroneous. (Adams’ Ejectment, 55, 56, 88; 3 Conn. 191.)

      Kribben, for respondent.
   Scott, Judge,

delivered the opinion of the court.

Under the circumstances of the case, the instruction given by the court as a substitute for that offered by the plaintiff was erroneous. As the defendant in her answer under oath denies the right of the plaintiffs to the premises, they, for the purposes of the suit, could not be regarded as co-tenants. The instruction gave the defendant all the benefit of an actual co-tenancy in making her defence, while at the same time she holds the plaintiffs at arm’s length, and denies that they have any title. The law of ouster in an action of ejectment between co-tenants, wherein the one denies that the other ever had any title to the disputed premises, must be the same as in an action between those who are connected by no such relation. If the defendant wanted the benefit of the facts assumed in the instruction, why in her answer did she not disclaim to hold adversely to the plaintiffs ? She would in one breath deny that the plaintiffs were her co-tenants, and in the other claim the benefit of the relation. Where one co-tenant seeks to bar another on the ground o£ adverse possession, the law requires proof of unequivocal acts showing an actual ouster. So where the title of the plaintiff as a co-tenant is not disputed by the defendant, and the case turns on the fact whether there has been a disseizin of one co-tenant by another, the plaintiff must show an actual ouster, or that some act was done by the defendant amounting to a total denial of the right of the plaintiff as a co-tenant. But in an action wherein the co- tenancy is denied ever to have existed, there is no reason why stronger evidence of an ouster should be required of one claiming as co-tenant than any other party. In such case the 11th section of the act ^concerning ejectment has no application. By filing such an ■answer as was put in in this case, an act was done which showed that the defendant made a total denial of the right of the plaintiffs as co-tenants.

There was error in submitting to the jury the construction of the deeds read in evidence. Whether the deeds amounted to a disaffirmance of the act done by those who executed them while they were infants was a question of law for the determination of the court. That a deed executed by one who has attained his majority, conveying lands, which he had alienated during his infancy, is a disaffirmance of the deed of alienation made during his infancy, is the well-settled doctrine of this court. The acquiescence of the infant, after his reaching his full age, for a period short of that which would secure a title by the statutes of limitations, does not destroy or take away the right which the law for wise purposes has conferred on infants of disaffirming their deeds. Whether the infant may not after attaining full age, within a shorter time, by bis declarations, acts or conduct, restrain himself from a disaffirmance of his acts done during infancy, is a question not presented by any thing contained in this record. In the case before us, we are of the opinion that the deeds, executed by the infants after they attained their majority and relied on by the plaintiffs, amounted to a disaffirmance of the deeds made for the same land during their infancy. (Youse v. Norcoms, 12 Mo. 549; Norcum v. Gaty, 19 Mo. 65; Tucker et al. v. Moreland, 10 Pet. 72; Carpenter v. Jackson, 11 Johns. 539; Jackson v. Burchin, 14 Johns. 124.)

Judge Ryland concurring,

the judgment is reversed and the cause remanded ;

Judge Leonard absent.


text:
    Mathews, Defendant in Error, v. Lecompte, Plaintiff in Error.
    1. Objections to the admission of testimony should he specific, not general.
    2. Where a plaintiff in ejectment shows that whatever title the defendant may have had has passed by mesne conveyances to himself, it is not competent for the defendant to set up an outstanding title in a third person.
    3. Fraud in the consideration of a promissory note secured by a deed of trust, will not affect the title of one who purchases bona fide at a sale by the trustee under the deed of trust.

      Error to St. Louis Land Court.

    Morehead, for plaintiff in error.

      Gibson, for defendant in error.
   RylaND, Judge,

delivered the opinion of the court.

This is a suit in the nature of an action in ejectment for a lot of ground south of Mound street, in block No. 248 in the city of St. Louis. The plaintiff shows his title thus : Thomas J. White, being the owner as is alleged in fee, sold the lot in controversy with another lot or lots to John Arthur ; and White and his wife, Jane White, made a deed with general warranty to said Arthur for the lots, on the first of June, 1840, for and in consideration of the sum of six thousand dollars, eight hundred of which were paid down ; and Arthur executed his three several notes for the balance of the sum, of seventeen hundred and thirty-three dollars and thirty-three and one-third cents each, dated June 1st, 1840, and due in one, two and three years respectively from date. This deed was properly acknow-¡edged and recorded. The acknowledgment was dated July 28d, and the deed filed for record the 24th, and recorded July 25th, 1840, in recorder’s office in St. Louis county. To secure the payment of the balance of the consideration money provided for by the three notes as before stated, Arthur and his wife Rebecca executed a deed of trust, dated the-same day of White’s deed to Arthur, namely June 1st, 1840, conveying the lots aforesaid to James B. Bowlin, in trust, in order to secure the payment of said notes to White. This deed of trust, signed by Arthur and wife, and also by said James B. Bowlin, was acknowledged and recorded on the 26th day of August, 1840. These deeds were read in evidence by the plaintiff, who also gave in evidence a deed made and executed by James B. Bowlin, the trustee, conveying the lot in question to the plaintiff, Mathews ; the sale was had in order to pay off the balance of six or seven hundred dollars due and unpaid on the last note ; the sale was made on the 27th May, 1854. White had transferred the note, not by endorsement on the note, but by a written assignment on a separate piece of paper, as collateral security for a debt due by him to Catherine Sutton, and it was to pay this debt to Sutton that the trustee sold the lot in controversy. The defendant objected to this deed from Bowlin to Mathews, the plaintiff, being read in evidence ; his objection was overruled, and the deed was read. The defendant’s objection not stating for what cause, or on what grounds it was made— it simply being a general objection without any specific reason or cause — was properly disregarded by the court below, and no error can be based on such ruling. The deed must therefore be considered as read without objection. Plaintiff then called a witness — Mr.. John Riggin — who stated that the defendant Le-compte and her tenants were in possession of the lot when suit was brought and before. The witness demanded the possession from her for the plaintiff, which she refused to give. This witness being cross-examined, stated that he was present at the sale of the lot on the 27th May, 1854; said he cried off the lot. It wa3 bid off to plaintiff; he believed the plaintiff paid ibe money to tbe trastee ; there were eight or ten persons at the sale ; said he was also present at the sale by Mr. Mauro, trustee, on the 6th day o£ February, 1854 ; said he was the auctioneer and cried it off. Here the plaintiff stopped.

The defendant then called Trusten Polk, who stated he was present at the sale on the 27th of May, 1854 ; he had Arthur’s note then in his possession; he was the attorney for Mrs. Sutton ; he directed the sale, wrote the advertisement, and had it published in the Pilot,” a weekly paper. Witness stated that several years ago this note, accompanying a debt on Dr. White, was put into his hands for collection by Catherine Sutton, through her brother, James C. Sutton. There was no assignment on the note. There was a separate paper accompanying the note purporting to transfer the note as collateral security for the debt of said White. This was dated September 30th, 1840. These papers lay in the witness’ hands a long time without doing any thing with them ; he says he was delayed, he thinks, on account of the application of Dr. White for the benefit of the bankrupt law ; a short time before the aforesaid sale he came across these papers and concluded there was nothing to prevent her from collecting her debt, and advised a sale under the deed of trust. The note spoken of was the same note referred to in the advertisement; there was a credit on it. The property was cried off by Mr. John Riggin, an auctioneer. Witness received the proceeds of sale and paid it to Mrs. Sutton. Witness said he represented Judge Bowlin at the sale. White left St. Louis for California about the spring of 1849.

Defendant proved her occupancy of the house and lot since the spring of 1841. Defendant proved that Dr. White was in possession and occupancy of the house- and lot in dispute in 1841, and delivered the possession of it to Mrs. Lecompte, the defendant, who has kept it ever since. The house and lot are situated on south side of Mound street, about the center between Broadway and Second streets, and eastwardly from the Big Mound. Arthur then occupied the house and lot next west of Mrs. Lecompte’s house. About that time, that is, in 1841, Dr. White called on Mr. Arthur at the house occupied by him and demanded possession of the house and lot from Arthur. White did not then get possession. The defendant then read in evidence a deed from Thomas J. White and wife to Marie P. Leduc, trustee of the defendant in this suit, Mad. Cecile Le-compte, dated 26th April, 1841, for and in consideration of $4000, conveying the lot and premises in controversy to Leduc as trustee, with general warranty. This deed was acknowledged on 23d April, 1841, and filed for record 26th April, and recorded 3d May, 1841. The defendant then offered to read a deed from White and wife- to defendant’s trustee for an adjoining lot, which was objected to and excluded ; also offered to read a deed from John F. Darby to Thomas J. White, which was objected to and excluded. Defendant then offered to show an outstanding title, and in support thereof offered to read in evidence from the second volume of State Papers, Crt. No. 671, a confirmation to Pierre Chouteau, sr., and a survey of the United States to Chouteau — survey No. 671 — -both of which documents were, on objection, excluded by the court, and defendant excepted, and also excepted to the exclusion of White’s deed for an adjoining lot and to the exclusion of Darby’s deed. The plaintiff then read a deed from defendant to Nathaniel Holmes, as trustee for defendant’s children, for the same lot, which had been conveyed by White to Leduc as trustee for the defendant. This deed was dated 19th August, 1845, acknowledged on the 20th of August, and was recorded. The plaintiff then read a deed from Nathaniel Holmes as trustee of Mrs. Lecompte’s children, also signed and executed by her children, Reine Lecompte, Charles Lecompte, Catharine Elerdean and Eliza Byron, for the same lot, to the defendant, dated 13th September, 1852, properly acknowledged and recorded; also read a deed from the defendant, Cecile Lecompte, to Charles Gr. Mauro as trustee, with general warranty, for the same lot of ground now in controversy in order to secure the payment of a debt to Yanvolzah ; this deed was dated 13th day of September, 1852. This deed to Mauro was duly acknowledged and recorded. He then read a deed from Mauro (tbe trustee to secure tbe debt to Vanvolzah,) dated tbe 6th of February, 1854, by wbicb said deed tbe said Mauro conveys tbe lot and premises in dispute to tbe plaintiff Mathews. All which last mentioned deeds were objected to as evidence by tbe defendant; but tbe objections were overruled, and the deeds were admitted in evidence. Tbe defendant then read a deed from herself to Nathaniel Holmes and John R. Shepley, trustees, in order to secure the payment of a debt which she acknowledged to owe to J. M. Eager and B. A. Hill, conveying the above mentioned lot and premises in controversy to them, the said Holmes and Shepley, for the purposes and trust mentioned therein. This deed bears date 18th August, 1845 ; was properly acknowledged and recorded.

This is the substance of the evidence given and preserved in this case. The court gave the following instructions for the plaintiff: “1. If the jury believe from the evidence that Thos. J. White and wife executed the deed to John Arthur, given in evidence by plaintiff, and that said Arthur and wife executed the deed of trust to James B. Bowlin, also given in evidence by plaintiff, and that said James B. Bowlin executed the deed to plaintiff, also given in evidence by plaintiff, they will find for the plaintiff, and will in that event assess, as the damages sustained by plaintiff, the value of the use of said premises from five years before the commencement of the suit down to the present time, and will also find the present monthly value of said premises. 2. The above instruction is given without reference to the question of limitation as made in the defendant’s answer. In regard to limitation, if the jury find from the evidence that the defendant Cecile Lecompte has had the quiet possession of the land in question, holding the same as owner for twenty years next before the commencement of this suit, then they ought to find for the defendant.”

The defendant excepted to these instructions. The jury found in favor of plaintiff, and judgment was rendered for plaintiff for the lot first described in his petition. The defendant moved for a new trial, which being overruled, she sued out her writ of error, and brings the case here.

In looking over the proceedings as preserved by the bill of exceptions, there can not arise a doubt as to the fact that the' defendant has showed no title to the land in dispute. She claims under White and so does the plaintiff. In 1840 White sold the lot to Arthur and conveyed it by general warranty deed ; at the same time, to secure the balance of the consideration unpaid, Arthur conveyed the lot to Bowlin. These deeds, duly acknowledged and recorded, were evidence to the world of the facts set forth therein. Now without ever showing any title afterwards in White, or ever showing a rescission of the contract between White and Arthur, and any release of the title from Bowlin, or reconveyance by Bowlin of the lot to White or Arthur, the defendant sets up a deed from White to Marie P. Leduc as her trustee, dated in 1841, (the previous sale still in full force,) for the very same land and premises which White had the year before sold to Arthur. The defendant may indeed have been the victim of a gross fraud practiced on her by White, but that can not help her out against White’s previous grantee, with his deed properly acknowledged and recorded. But suppose, for the sake of _ argument, we admit that by White’s deed to Leduc, as her trustee, and by her deed to Holmes as trustee for her children, and by the subsequent deed of Holmes and her children to her, she acquired title to the lot in controversy, how then stands the caso? She still shows, as regards this plaintiff, no title ; for, after Holmes, and her children’s deed to her, she again sold and conveyed, with covenants of warranty, all her estate in the lot to Charles Gr. Mauro, in trust to secure the payment of a debt to Yanvolzah, and Mauro afterwards, in pursuance of the said deed of trust, sold the lot to pay Vanvolzah’s debt, and the plaintiff Mathews became the purchaser. The defendant therefore, in no view of this case, as preserved by the bill of exceptions, has any right-or title to the lot. Indeed the first view taken settles the case beyond any dispute, and the instruction first given put the case to the jury fairly on this view — that is, that the defendant acquired no title to the lot from White, because White had no title at the time he made his deed to Leduc. Then as to the statute of limitations, it has nothing to do with the case. The defendant never pretended that she had occupied the lot for twenty years herself before suit brought, but she wished to track her occupancy to White’s and to those under whom White derived title, and thus make up the requisite time. But this can not be; because White had parted with all his title by deed, duly recorded, to Arthur, before the defendant purchased of White. Arthur steps in between White and Mrs. Lecompte and cuts off the chain of occupancy. She can not shove Arthur out and link her possession to White’s.

The plaintiff showed title from White down to himself. He showed that as defendant made no other source of title to herself but from White, and h.e having none at the time she purchased, she consequently could derive.none from him. Now what right had the defendant to show an outstanding title in a third party against a plaintiff who had and claimed to have title by deed of general warranty from defendant to her trustee, Mauro, and from Mauro to plaintiff, and both claiming under a common source? Was not their title thus derived to plaintiff from defendant sufficient to stop her from setting up an outstanding title ? The plaintiff shows that by his evidence he had all the right of defendant; that he held under Mauro, the trustee, to whom she' had conveyed by general warranty deed the premises in dispute. Now although it is in general competent for a defendant in ejectment to show title out of the plaintiff and in a third person, yet we think such will not be permitted to a defendant from whom plaintiff shows that he claims by a general warranty deed.

The objections taken to the sale and proceedings by Bowlin, the trustee, are unavailing in this action. The alleged fraud in the Yanvolzah debt can not affect the purchaser at the trustee’s sale.

Upon the whole record, we can not see that any error has been committed by the court below against the defendant. The judgment must therefore be affirmed;

Judge Scott concurring ; Judge Leonard absent.


text:
    Maguire, Respondent, v. McCaffrey, Appellant.
    X. A report of a referee, to whom a cause hadheen referred under article 18 of the practice act of 1849, upon the whole issue, must he reviewed in the same manner as if the cause had been tiied by the court, and the court had made a finding of the facts.

      Appeal from St. Louis Court of Common Pleas.
    The facts are sufficiently set forth in the opinion of the court.

      S. H. Gardner, for appellant.

      Peber, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was a judgment on the report of a referee. The third section of the 16th article of the practice act of 1849, provides that the “report of.the referees, upon the whole issue, shall stand as the decision of the court in the same manner as if the action had been tried by the court; and their decision upon the matters referred may be excepted to and reviewed in like manner.” The main objections'made to the proceedings below is, that the evidence does not warrant the report of the referee. If such had been the case, the course of the defendant was a plain one. He should have specified the facts found as alleged against the evidence, and should have stated all the evidence in relation to them, and asked a review of the finding, and in the event of not obtaining i(, should have excepted. There is nothing in the other exceptions taken to the report of the referee.

Judge Ryland concurring,

the judgment will be affirmed ;

Judge Leonard absent.


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    Shore’s Administratrix, Appellant, v. Coons, Respondent.
    1. 'Although an administrator, wishing to make a final settlement, should suffer himself to he charged with the receipt of a debt due the estate, which had never been paid, and a judgment should be rendered against him for a balance found due upon such settlement, he may afterwards in his character of administrator sue for and recover the said debt.
    2. Although an administrator should be released by a probate court from liability for an inventoried debt on the ground that it had been improperly inventoried, this can not be set up as a bar to an action brought by the administrator for the debt.

      Appeal from St. Louis Court of Common Fleas.

    Whittlesey, for appellant,
    cited Henderson’s Adm’r v. Henderson, 21 Mo. 879.

      Glover & Richardson, Krum & Harding, for respondent.
    I. The appellant did not file the proper notice to save the case for the opinion of the court. No motion or exception was made until fifteen days after the report had been filed.
    II. The court properly gave judgment on the report for the defendant. 1st, as to the item of $200 — the appellant procured the probate court to give her credit for that amount on the ground that it had been improperly inventoried as part of the effects of the estate. This was an admission on the record that the account was not due, and is inconsistent with her suit. 2d, as to the item of $100 — the record omits the transcript of the appellant’s settlement in the probate court, but the referee found that the appellant in her settlement treated the account as having been paid, having returned the account as collected, and that being paid, it formed a part of the balance of $299 48, with which she was charged in her final settlement.
   Scott, Judge,

delivered the opinion of the court.

The referee reported that the defendant owed the plaintiff the debt of one hundred dollars, but as he was of the opinion that it was due to her individually, and not as administratrix, she was not entitled to a judgment; and this report was confirmed and a judgment was entered against the plaintiff. We are of opinion that the facts stated in the report do not warrant the conclusion of law drawn by the referee and sanctioned by the court.

We do not see how the defendant, taking advantage of the confidence reposed in him, could change his liability to the plaintiff as administratrix, and convert it to a liability to her individually. The referee does not find that the defendant ever actually paid the debt of one hundred dollars; it is a forced inference drawn from the fact that he was the agent of the plaintiff. The defendant was the agent of the plaintiff as ad-ministratrix of T. Shore’s estate, and transacted all her business as such. In that capacity he made a final settlement for her, and suffered a judgment for $>299 48 to be entered against her, as the balance due the estate. Because it does not appear from the last or any other settlement whether the debt of one hundred dollars was collected or not, the referee comes to the conclusion that the defendant, as agent, treated it as paid, and regarded it as forming a part of the balance which was ascertained to be due to the estate from the plaintiff, and that it was thus extinguished — that is, an agent for an administrator, owing to the estate a debt, in making a settlement with the estate, shall suffer a judgment to go against the administrator for his debt, without paying one cent of it, and afterwards, when he is sued for that debt, he shall be permitted to set up the defence that the debt due the estate is extinguished and converted into a personal liability to the administrator. To make the matter plainer, a debt is due an estate; the administrator wishes to make-a final settlement; for that purpose, although he has not received the debt due, yet he suffers himself to be charged with it in the settlement, and there is a balance found against him ; afterwards, when the' debtor is sued for his debt, he claims the right to insist that the original liability was extinguished and converted into a demand personally due the administrator. The present is a much stronger case, for here the defendant is agent for the administratrix, and also is the debtor, and made the settlement without any evidence of the consent of his principal and against his duty. Although the judgment in the probate court may be binding on the plaintiff, and she may acknowledge the balance against her, yet there is no principle which now prevents her' from suing for the debt in the same capacity in which she might have sued when she first became entitled to it.

In thus meeting this question on its merits, we do not desire to be understood as intimating that, if the debt was a personal one, judgment could not be entered for it under the petition filed in this action. We give no opinion on that point. As this judgment will be reversed, it becomes necessary to advert to the evidence in relation to the debt or item of two hundred dollars. The defendant not being a party to the proceeding in the probate court, if it is to be regarded as a judgment, could derive no advantage from it as evidence. We have no hesitation in saying that if Mrs. Shore had gone in court and procured an order releasing her from liability for the inventoried debt of the defendant, she .might afterwards, in spite of such order, sustain a suit for such debt. An administrator has no right to give a voluntary release for a debt .due his intestate. He has no right to destroy the effect of obligations by his declarations and conduct. He can not be a witness as to facts occurring subsequently to his becoming such. We do not say that such a course would not throw obstacles in the way of a recovery and render explanations necessary, but that it would be conclusive. If the defendant wanted a valid acquittal, why did he not advise a suit to be instituted against him and have the matter conclusively settled by the courts ? But the defendant was the agent of the plaintiff, and conducted all things relative to the administration of the estate, and the inference is that the order in question was entered at his instance. If the proceeding was had without the knowledge or consent of the plaintiff, she can show that it was unwarranted and a fraud upon her. The bringing of a suit would be a disaffirmance of the act of the agent. If there was any paper or document connected with the proceeding in the probate court which was executed by the plaintiff, and which could be used as evidence against her, the originals should have been produced, and not certified copies. It is like the case of an affidavit or answer of a party to a cause offered in evidence by a third person. If either of these is intended to be used against the party making it, as containing an admission, the original must be. produced, and the handwriting proved before it can be read.

Judge Ryland concurring,

the judgment will be reversed and the cause remanded ;

Judge Leonard absent.


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    Shore, Appellant, v. Coons, Respondent.
    1. Where it is apparent from the face of the report of a referee, to whom a cause had been referred under article 16 of the practice act of 1849, that the decision of the referee is erroneous, the judgment of the court confirming the report will he erroneous, and the party aggrieved will be entitled to a reversal thereof, although no motipn for a review he filed within the time required by law.

      «ftppeal from St. Louis Court of Common Pleas.

    Whittelsey, for appellant.

      G-lover & Richardson, Krum & Harding, for respondent.
    I. The appellant did not file the proper motion to save the case for the opinion of this court. No motion or exception was made until fifteen days after the report had been filed, and no extension of time was asked or given by the court.
    II. Treating however the exceptions filed by the appellant as being in time and proper under the code, they omit to notice any points which can be reviewed in this court.
   Scott, Judge,

delivered the opinion of the court.

We do not know how the judgment in this case can be sustained. The referee reports that upon a fair settlement between the parties there is a balance due to the plaintiff. This balance be refuses to allow her because her petition was so framed as not to authorize the entry of a judgment for it. The defendant’s answer denied that he owed the sums alleged to be due by him in the petition, and made exhibits of all the dealings between the plaintiff and himself, and claimed a balance by way of set-off. This set-off was denied by a replication. Under it the referee reports in favor of the defendant a balance of $297 93. For this sum a judgment is rendered in his favor against the plaintiff. Now on what principle can this judgment be upheld? Although by the state of the pleadings the referee was restrained from reporting a balance in favor of the plaintiff, yet did not the balance found to be due to her show that, on a settlement of all accounts growing out of the agency of the defendant, no balance could be due him under his plea of set-off. The validity of the set-off was in issue. Abare statement of the case is sufficient to show the injustice of the judgment. No argument can make it plainer.

As the error of the judgment is apparent from the face of the report, the plaintiff is entitled to a reversal without having taken any exceptions to it. The judgment will be reversed and the cause remanded, and the plaintiff will have leave to amend her petition if she desires to do so.

Judge Ryland concurring ; Judge Leonard absent.


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    The State, Respondent, v. Rucker, Appellant.
    1. Tobacco, the growth of this state, is not one of the articles exempt from duty under the act to license auctioneers. (R. C. 1845, p. 161.)
    2. A person may be guilty, under the act to license auctioneers, (it. C. 1845, p. 162,) of exercising a trade or business of a public auctioneer without a license, although he may receive no compensation for the act of selling.

      •Appeal from St. Louis Criminal Court.

    The defendant moved the court to give the following instructions : “1. If the jury believe from the evidence in the cause that George W. Rucker sold at public outcry, at Ms place of business, the tobacco as charged in the indictment' — the growth and production of this state — and that his services in selling the same were a mere gratuity, without reward or compensation, then you must acquit. 2. If the jury believe from the evidence that George W. Rucker sold tobacco at public outcry at his place of business in the city of St. Louis, and that all of said tobacco so sold was the growth of the state of Missouri, you will acquit. 4. To exercise the trade and business of an auctioneer is to pursue that business for a livelihood, and sell goods, wares, merchandise and property at public outcry for a compensation or reward.” The court refused to give the foregoing instructions.

      Cline & Jamison, for appellant.
    Mauro, (circuit attorney,) for respondent.
   RylaND, Judge,

delivered the opinion of the court.

George W. Rucker was indicted at the January term, 1856, of the St. Louis Criminal Court, for unlawfully exercising the trade and business of a public auctioneer. He appeared to the indictment and pleaded not guilty. The jury found him guilty and assessed the punishment by fine of five hundred dollars. He moved in arrest of judgment, also for a new trial; both motions being overruled, he brings the case here by appeal.

The testimony showed that Rucker had at various times sold tobacco at auction in the county of St. Louis. Sometimes he would sell as many as thirty or forty hogsheads — at other times not so many. The hogsheads would weigh about 1200 pounds each, and were sold for various prices. This was within one year before the finding of the indictment. Mr. Rucker, the defendant, got fifty cents for each cask of tobacco that went on the brakes. The tobacco was always weighed and sampled, and sometimes sold at auction. There was no charge made for the selling. The witness who owned the warehouse stated that Rucker was to have fifty cents for each cask of tobacco that went on the floor. He was paid that .amount, which was col-lecfced of the customers of the house, for weighing and sampling and selling, when a sale was made, but no charge was made for the particular act of selling. Tne compensation to Rucker was fifty cents, whether there was a sale or not. The tobacco was the growth of the state of Missouri. Some may have been raised in Illinois.

There can be no doubt of his selling at auction, and he showed no license for it. His defence is that no license is necessary in order to sell at auction the tobacco which was the growth of this state ; and that to be guilty, he must be proved to have followed the business for a livelihood or support, and the defendant complains of the instructions given against him and of the refusal to give the instructions asked for by him. The court instructed the jury: “If they believe that defendant, at St. Louis county, one year next before the finding of the indictment, did exercise the trade and business of a public auctioneer, by selling leaf tobacco at public auction without a license, as charged in the indictment, they should find him guilty, and assess his punishment by a fine of five hundred dollars ; and in such case it makes no difference whether the defendant received any compensation for the specific act of selling or not, nor does it make any difference, so far as it concerns this-prosecution, where the tobacco was raised.” This instruction is correct. The act under which this prosecution is carried on declares that “ no person shall exercise the trade or business of a public auctioneer, by selling any goods or other property subject to duty under this law without a license.” (R. C. 1845, p. 162.) “ Slaves, live stock, agricultural productions, farming utensils, and household and kitchen furniture, sold at the residence of the owner /’ — sales of this property shall be free of duty. (R. C. 1845, p. 164.) Then the growth of tobacco here makes no difference unless the sale at auction be at the residence of the owner. There is no pretence that such was the case here. The statute makes the penalty for a violation five hundred dollars. The defendant can not complain that the court laid down the law improperly.

The court very properly refused to give the instructions asked for by defenda-nt. So far as these relate to the growth of the tobacco, the principle was properly stated in the one given first for the state ; as respects compensation and the following the business for a support, there was no foundation for any such instructions. The whole were therefore refused very properly. Let the judgment be affirmed; the other judges concurring.


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    The State, Respondent, v. Moody, Appellant.
    X, Under the revised code of 1855 (R. C. 1855, p. 1189), the trial of misdemeanors may be submitted to the court by the defendant and prosecuting attorney.

      Appeal from, St. Louis Criminal Court.

      'C. G. Mauro, (circuit attorney,) for the State.
   RylaND, Judge,

delivered the opinion of the court.

This was an indictment for exercising unlawfully the trade >and business of a public auctioneer. The defendant appeared' .and by consent of the parties a jury was waived and the facts submitted on “ not guilty” to the court, who heard the evidence and found the defendant guilty, and assessed the statutory fine of $500. The defendant moved for a new trial, which being overruled, he appeals to this court. There are no questions of law saved in the record — no instructions given or refused — and indeed nothing in the case except as to the sufficiency of the evidence to support or warrant the judgment or finding of the court. We have examined the evidence and are satisfied that the court found properly.

This case is, so far as relates to the trial by the court without a jury, similar to the case of the State v. Neales, 10 Mo. 500. The case of Neales was tried under the act of 1845, which requires all issues of fact in any criminal case to be tried by a jury. (R. C. 1845, p. 878.) Tbe present case was tried under tbe act of 1855, concerning practice and proceedings in criminal cases. (R. C. 1855, p. 1189.) Tbe last act expressly authorizes tbe defendant and prosecuting attorney, with tbe assent of tbe court, to submit tbe trial of misdemeanors to tbe court, whose finding, in all such offences, shall have tbe force and effect of tbe verdict of a jury.

Under this last act, then, the court had tbe right to try the issue, and its finding, like a verdict, will not be disturbed even upon contradictory evidence. Let tbe judgment be affirmed; tbe other judges concurring.


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    Willard, Plaintiff in Error, v. The Millers’ & Manufacturers’ Insurance Company, Defendant in Error.
    X. Where a steamboat, whose freight list is insured against a total loss only, meets with a disaster upon the contemplated voyage, and by a peril insured against is rendered totally unable to transport the cargo, and can not be repaired in a reasonable time to transport the same, this will amount to a total loss of the freight within the meaning of the policy; and that too although a pro rata, freight should be received for the portion of the voyage completed at the time of the disaster.
    2. In case of an insurance on freight “ against a total loss only,” to authorize an abandonment the loss must be an actual total loss, not a constructive or technical total loss.

      jError to St. Louis Court of Common Pleas.

    This was an action upon a policy of insurance. The defendant insured tbe plaintiff in the sum of $8000, upon tbe freight list of the steamboat Cataract on a voyage from St. Louis to New Orleans. Tbe insurance was against a “ total loss only.” It was set up as a defence to tbe action that “ tbe freight list of tbe said steamboat was not totally lost as stated in said petition ; on tbe contrary the defendant says that the said plaintiff received a large sum of money, to-wit, upwards of seven hundred and fifty dollars, as pro rata freight on the cargo and passengers that were upon his boat on the occasion of the injuries mentioned and set forth in the petition, whereof upwards of four hundred and fifty dollars was on account of pro rata freight on a cargo for said voyage.” After adducing in support of his cause of action the policy of insurance, plaintiff, as appears from the bill of exceptions, “-gave evidence tending to show that he was the sole owner of the. Cataract, and the person solely interested in the said policy at the time of the insurance and loss mentioned in the petition; and that her freight list and the fare of her passengers for the trip on which she was lost amounted to about $8000 ; that after leaving the port of St. Louis, on the voyage insured against, and after proceeding sixty miles upon her voyage toward New Orleans, said boat sustained an injury by the unavoidable perils of the river, by means of which the further prosecution of the voyage was rendered impossible ; that her cargo could not be sent forward for any less rate of freight than the Cataract had agreed to take it; that said boat could not be repaired in time to prosecute said voyage. This was all the evidence on the part of the plaintiff.” The bill of exceptions proceeds as follows : ‘1 The defendant offered evidence tending to show that the plaintiff received as pro rata freight for the trip insured by said policy of insurance the sum of $467 ; which was all the evidence offered by the defendant; and thereupon the court gave at the instance of defendant the following instructions : ‘1. If the jury believe from the evidence that the plaintiff received any part of the freight insured, then there was not a total loss of the freight list, and the plaintiff can not recover. 2. If the jury believe from the evidence that the plaintiff received from the shippers of the cargo of the Cataract, or on their account, or on account of any of them, the sum of $488, or thereabouts, as freight of the cargo or part of the cargo of the Cataract for the trip, commencing November 17, 1854, then there was not a total loss of the freight list, and the plaintiff can not recover.’ ”
    Plaintiff thereupon took anon-suit, with leave to move to set the same aside. This motion having been made and overruled, the plaintiff brings the case to this court by writ of error.

      Hudson & Thomas, for plaintiff in error.
    I. There was a total loss of the subject insured within the legal acceptation of the term “total loss.” (4 Wend. 53.) It is not necessary in all cases of misfortune that the injury to the vessel should exceed one-half her value to justify an abandonment ; if she be disabled, and can not repair in a reasonable time, the master may abandon the freight list; and in some instances the vessel itself, as for a total loss. (15 Wend. 582.) The effect of the words “ against a total loss only,” in ordinary cases of insurance, means that the los3 must be equal to one-half the value of the article or subject insured. (6 Mass. 464.) The instruction given was manifestly erroneous.

      T. T. Qanli, for defendant in error.
    I. The instructions given were correct. (Ilugg v. Augusta Ins. & Banking Co. 8 How. 595 ; 2 Phill. on Ins. § 1767 and cases there cited.)
   Scott, Judge,

delivered the opinion of the court.

From the cases to which reference has been made, one would come to the conclusion that the defence to this action is conceived in the idea that a total loss of freight can only exist, or can be said to have taken place, when the cargo is destroyed or in such a state that freight can not be earned in respect to it. This may be true as far as it goes ; but it is not the only event which will entitle the assured to an action on a policy against a total loss of freight. Insurance of freight covers the risk of a loss of it by reason of a loss of either the ship by the perils insured against whereby it is prevented from transporting the cargo, or a loss of the goods by the perils insured against whereby the earning of freight by the transportation of them is prevented. (1 Phill. 1142.) Cases in reference to what constitutes a total loss of the cargo have no application to that now under consideration. The claim of the plaintiff to a recovery for a total loss rests upon tbe breaking up of tbe voyage, whereby be was absolutely prevented from earning freight.

Tbe policy on freight, covering both tbe vessel and cargo against tbe perils for which the insurance was effected, it is necessary that there should have been a total loss of the freight in order to warrant a recovery on the policy, it being only against a total loss. In the law of insurance, a total loss of the subject of an insurance is where, by the perils insured against, it is destroyed or so injured as to be of trifling or no value to the assured for the purposes and uses for which it was intended ; or is taken out of the possession and control of the assured, whereby he is deprived of it; or where the voyage or adventure for which the insurance is made is otherwise broken up by the perils insured against. The interpretation given to the policy, by the instruction of the defendant, is, that if any the least amount of freight is earned, the underwriter is discharged and the assured has no right to recover, as the policy is only against a total loss. But this we conceive is not the meaning of the contract. If the cargo is lost, or if the vessel is totally disabled from performing the duty of transporting the cargo, and can not be repaired in a reasonable time to perform it, the contract, according to the construction given to it by the writers on the law of marine insurance, is violated, and the assured has a right to recover for a total loss. If the vessel is disabled, and the cargo remains, and freight is afterwards earned in respect to it, such freight does not affect the right of action, but is only considered in adjusting the amount of the loss. Phillips says that if the ship is rendered innavigable, and can not be repaired for the prosecution of the voyage, and another can be procured within a reasonable time and distance, and the master has means to procure such other at an expense materially less than the amount of the freight for the voyage, the underwriter on freight or profits is not liable to be prejudiced by the master’s neglect to tranship, any more than the underwriter upon the cargo, and the loss will be adjusted as if the cargo had been transhipped and forwarded, and will be partial or total according to the amount of the loss. (Phil, on Ins. § 1682.) This clearly shows that after the vessel is disabled, the freight that is or may be earned in respect to the cargo does not affect the right of action on the policy, but is regarded only in the adjustment of the loss. If, notwithstanding the disaster to the vessel, partial freight is earned, it will be allowed the underwriter; if the entire freight is .earned, or might have been earned, the assured will recover nothing ; for the contract of insurance being one of indemnity, if the assured has sustained no loss, or if he might have avoided the loss, he will not be entitled to recover any thing. In order to show that on a policy on freight against a total loss there may be a recovery notwithstanding there is salvage, we will refer to what was said by the court in the case of Murray v. Hatch, 6 Mass. 475, which was an action on a policy on freight against a total loss. The court says, as to the distinction contended for by the defendant’s counsel, and stated in the exceptions, of a constructively total and a physically total loss, intending by the latter a loss without any salvage, it is not warranted by any of the text writers upon the subject of marine insurance ; a total loss with salvage is a case frequently mentioned and described; and indeed it is difficult to conceive of any event or peril provided against by the ordinary forms of insurance which does not admit the supposition of some salvage remotely possible at the least; as in the case of a ship foundering or burnt at sea, every possible chance of salvage is by no means excluded. But in the technical sense of the words “ total loss,” and for every beneficial purpose in which a contract of insurance can be employed, a ship foundered or burnt at sea, or wrecked or broken upon the land, so as to be past relief or repair, is specifically and as a vessel totally destroyed ; and such an event is a total loss, and, when it has happened from a peril insured against it, is a loss for which the underwriter is liable, notwithstanding a salvage and a very considerable salvage remaining, and notwithstanding any restriction the policy may contain as being expressed to be an insurance against a total loss only, or as containing an exception or warranty on the part of the assured against average or partial losses.”

As the bill of exceptions was only prepared with a view to raise the question involved in the instruction given by the court, we will not express an opinion on the plaintiff’s case, as it was not got up with that view. However, as the cause will be remanded, we may as well give an opinion on some of the questions discussed, as they will recur on the trial hereafter to take j place. The plaintiff is mistaken in supposing that on a policy on freight against a total loss only, a party is entitled to abandon for a technical total loss. The rule that there may .be an abandonment for a technical total loss, has never been applied to a cargo consisting of memorandum articles. A /memorandum article is one for whose loss the insurer is not lia- * ble, unless the loss is an actual total one. As the insurer indemnifies only against a total loss, it would be a clear perversion 1 of his contract to make liable for a loss which was not really total but only so by construction. It would be taking from . him the protection he intended by the restriction imposed on his ^undertaking. (Marcardier v. Ches. Ins. Co. 8 Cranch, 47.) | To the same effect is Philips, who says an insurance against a '.total loss only, or with the exception of particular average, the ! two forms being equivalent, excludes a constructive total loss on account of damage to the article, &c. (2 Phil. § 1767; Hugg v. The Augusta Ins. & Banking Co. 7 How. 605.) It should be observed that the cases of the American Ins. Co. v. Center, 4 Wend. 47, and the American Ins. Co. v. Ogden, 15 Wend. 532, which seem to maintain a contrary doctrine, were on policies not limiting the loss to a total one only.

This case must turn on the question whether the voyage was broken up. What will be a breaking up of the voyage must depend on the circumstances of each case. Cases may be stated which will make the answer to the question a plain one. Others may occur which will admit of doubt. An accident, caused by one of the perils insured against, which merely causes a delay or retardation not going to the destruction of the contemplated adventure, is not a good cause of abandonment so as to amount to a total loss. That the retardation may deteriorate the value of the cargo will not justify an abandonment as against the insurer of freight, for the shippers are bound to pay the full freight for the voyage if the cargo is carried to the port of destination; and specifically remains, notwithstanding at its arrival it is by reason of sea-damage utterly ruined. The contract of the ship-owner is to convey the cargo to the port of destination; but he by no means warrants the state in which it shall arrive, as it may be affected by the perils of the sea or other perils against which his contract does not bind him. So, if the retardation will not so affect the cargo as to make it incapable of earning freight, it can not be considered in the question whether there was a breaking up of the voyage in an action on a policy against a loss of freight. (Jordan v. Warren Ins. Co. 1 Story C. C. 854; 2 Phil. § 1767.)

Whether another vessel can be procured in a reasonable time to transport the cargo is, as we have seen, a consideration that does not affect the inquiry whether the voyage has been broken up by the perils insured against. That is a circumstance of importance only in adjusting the amount to be recovered, not in determining the right to an action.

Judge Ryland concurring,

the judgment will be reversed and the cause remanded;

Judge Leonard absent.