author: M’Gibk, C. J., Tompkins, J.,

text:
    City of St. Louis v. Smith.

      1. The fine of $100 imponed by an ordinance of the corporation of St. Louis, upoapersons keeping- tippling houses and retailing wines, St.e., witliout license, has, by a subsequent ordinance, been reduced to $90, and Justices of the Peace have jurisdiction.
    The corporation has the power, by its charter, of imposing a fine upon persons keeping tippling houses and retailing wines, &c , without having first obtained license from the corporation.
    ERROR from St. Louis Circuit Court.
   M’Gibk, C. J.,

delivered the opinion of the Court.

This was an aclion of debt for one hundred dollars, brought before a Justice of the Peace for a penalty. Tile Justice gave judgment against the corporation, whence the can :e was removed to the Circuit Court, where judgment was again given against the corporation.

T.ie points on which the Circuit Court wont, were:

First. That a Justice of the Peace, under the law of tho land, had not jurisdiction of the sum of SI00.
Second. That the corporation had not power by their charter to create the offence out of which this penalty grew.

Tne record shows that the suit was commenced under the provisions of an act oi ordinance of the city, entitled “An ordinance to reduce into one the several ordinances for levying and collecting taxes in the city of St. Louis,” which imposes a fine of $100 upon persons for retailing wines and spirituous liquors in less quantities than one quart or bottle, to be drank in the house, without a license to keep a tippling house first obtained from the city.

The bill of exceptions shows-that Smith did so retail without the license required. Several ordinances and the charter are upon recordj which will be noticed as occasion may require.

A subsequent ordinance to the one on which the suit was brought, declares that from and after the passage thereof, all ordinances and parts of ordinances fixing a-penalty for the transgression, of the same, a specific sum not within the jurisdiction-of a Justice of the peace, be and the same are hereby repealed. Section second says that all specific sums fixed as a fine and forfeiture as aforesaid, be reduced to the (.114).sum of ninety dollars, and to be recovered By action of debt, founded on this ordinance; before any tribunal having.jurisdiction thereof: page 30"of the ordinance-book.

I understand that the first section of this last act is predicated on the idea that there may be some specific penalties above the jurisdiction of their own Justices, (for I think they must be intended to refer to those Justices only over which they had power,) which may be, and I think is, a mistaken idea. At all events the act on which.this suit is brought is not one of. that description, for by the charter the Justices may have jurisdiction to any amount. By the amended charter, section 9, it is declared that Justices of the Peace within the city shall have jurisdiction of all cases arising under the first act of incorporation under the amended act, and under the ordinances. And I see nothing in the ordinances which expressly defines their jurisdiction.

But it is most clear that this penalty is reduced to $90, by the second section of the 5th March, -1827.. But I think that this, by the ordinance of 24th January, .1829, is cured. Tnis ordinance g'ives great latitude in matters of this kind, and declares that all that is necessary is, that the defendant should be informed of the nature of the charge against him. In this case the defendant is expressly told by the summons, that he is to answer for the offence of keeping a tippling house without a license, contrary to the act, reciting it. This, I think, is enough to let him know what to defend against in the ease.

The next and most material point is, whether the corporation had power to pass the ordinance licensing tippling houses, and fixing a penalty for those who should keep them without such license. To know what powers are granted, it will be necessary to look to the charier; and so much of that charter as I deem material, 1 will quote. Tne 12th section declarer that the Mayor and Board of Aldermen shall have power to lay taxes, &c.; to make regulations to prevent the introduction of contagious diseases; to make quarantine laws ; to prevent and remove nuisances; to provide for licensing, taxing and regulating auctions, retailers, ordinaries, taverns, billiard tables, &c.

Then it says, to restrain and prohibit tippling houses, gaming houses, bawdy houses, and other disorderly houses, &c.

It may he remarked here, (hat the act respecting taverns authorizes the County Court to license dram shops, and it is insisted that dram shops and tippling houses (115) arc synonymous. I think they are, so far as respects the meaning of the charter.

The question which is made on this part of the subject, arises on the words to restrain and prohibit tippling houses. It is contended on the part of Smith, that to license and fix a penalty for keeping such house without license, is not to restrain but to encourage and create.

I understand the construction of this part of the charter to be this: That the Legislature understood that tippling houses, &c.. already existed, and that they intended to give the corporation, by the words restrain and prohibit, two powers. One was to prohibit their existence altogether, if they thought it best to do so, and the other wa3 to keep them witifin certain limits as to the number and order, as they should think best.

But as to the tippling houses, bawdy houses, and gaming houses, whether the corporation could legally license them if they chose to do' so, instead of prohibiting them, I think depends upon the fact, whether by the law of the land they were permitted to exist.

Now as to the bawdy houses, they could not be authorized by the corporation law to exist, because it is contrary to common law that they should exist. The corporation might suppress them if they existed against the general law, but if it did not choose to do so, then it might restrain them within such limits as it might see fit. But as to the tippling house, by law it may exist. The County Court may grant it * license, and I cannot see how the corporation could well prohibit their existence if •the County Court should license them.

Then as to the tippling houses licensed by the County Court, the corporation may restrain, and where not authorized by the County Court, may suppress and prohibit ■altogether.

The question then arises, what is meant by restrain? I understand that any impediment thrown in the way of an unlimited exercise of a power, is a restraint; the restraint may be so great that it amounts almost or entirely to an exclusion to the ■exercise of the power. Tet it may be less, so much so that the restraint is scarcely perceptible. To require a license on the payment of fifty dollars, orto pay a fine of one hundred for neglect of this license, is a restraint. It may be a sufficient one, and if not, the corporation may provide other restraints.

(116) Upon the whole matter, I am of opinion the judgment of the Circuit Court is erroneous. It is reversed and sent back for a new trial.

Tompkins, J.,

dissenting.

I contend that the act of Assembly, giving the corporation power to restrain and prohibit tippling houses, &c., does not authorize it to license such houses. To restrain, in my opinion, means to restrict within certain bounds, viz: to prescribe the hours within which their doors may be kept open ; to make regulations to prevent, more effectually, all disorderly practices peculiar to the habits of persons frequenting such places in a city, &c. &c. In the rest of the opinion I concur.


source: Caselaw Access Project

author: Wash, J.,

license: Public Domain

text:
    Philipson to use of Menard v. Bates’ executor.
    9. An action of assumpsit for money had and received, will lie to recover money paid upon a contract for the conveyance of land, where the other contracting party re. .fuses to comply with his contract, or is unable so to do, or where the contract has ibeen rescinded; but where the plaintiff declares specially upon the inability of ■the defendant to make a good conveyance, the nature and extent of the inability must be set forth
    s. To admit secondary evidence, it must, under the circumstances, not only appear to be the éest, but it must be the b >1 legal evidence.

      3. A certified copy of part of a record is inadmissible. The whole record must be certified, in order that the Court may be in possession of the full effect of it, for a partial extract may bear a very different import from the whole taken together.
    ERROR from the St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action of assumpsit commenced by the plaintiff against the defendant In the Circuit Court. The declaration contains two counts. The first is a special count on the contract, charging that on the 5th of July, 1822, the defendant’s testator, (Frederick Bates) by an instrument in writing signed by him, hut not sealed or purporting to be sealed, in consideration of §1600 to him in hand paid by said plaintiff, Philipson, the receipt whereof was thereby acknowledged, granted, bargained and sold unto said Philipson or his assigns, two lots of ground, situate immediately above the town of St. Louis, and making part of a larger piece of ground which had been laid off in building lots by William Smith, Manuel Lisa, and said Frederick, which said lots are designated as lots No. 31 and 32, on a plat made of said la-ger piece of ground by Joseph C. Brown, deputy surveyor; and that said Frederick promised and bound himself by said instrument, to make or cause to he made untp the said Philipson or unto his assigns, a regular deed of sale of said two lots as soon (117) as the hindrance occasioned'by the demise of William Smith and Manuel Lisa «hall have been removed, &c., and averring that said Philipson had been at all times ready and willing to receive a regular deed, and often requested said Frederick Bates In his life time to make said deed, and to remove or cause to be removed any hindrance that might exist, in consequence of the death of said Smith and Lisa. Yet the said Bates did not in his life time make said deed, nor remove or attempt to remove the hindrance occasioned by the demise of said Smith and Lisa, and that since the death of said Bates, the undivided third part of said lots had been levied upon and sold by the Sheriff of St. Louis county by virtue of an execution, &c.; and that the remaining two-thirds are still subject to the lien of a judgment originally rendered against Manuel Lisa; and that by reason of the premises, no <}eed or title whatever can now he made by heirs or representatives of said Bates or of said Smith or Lisa, or either of them, &e. The second is a general count for money had and received.

On the trial in the Circuit Court, the defendant’s connsej moved the Court to strike out the first count of the declaration, which was done accordingly.

The plaintiff proceeding to trial on the second count, offered in evidence the copy of a deed from Frederick Bates to William Smith and Manuel Lisa, under the certificate of the recorder, that the same was a true copy of the record in book F, page 375, in his office. After having proved by the executor of Lisa, and by the person, having access to Smith’s papers, that the original of which it purported to be the ■copy, was'not to be found amongst their papers. The defendant’s counsel objected to the copy, as inad.nissible evidence, and the Court sustained the objection. The plaintiff then offered in evidence certain documents, being the copy of a judgment of the old general Court for the Territory of Missouri, rendered at their May term, 3813, against Ma me! Lisa, and Jaquez Clamorgan, and also the copy of a decree in the Supreme Couit for the State of Missouri, rendered at the November term, 1825, on an appeal in Chanceiy, from a decree rendered in tile Superior Court of Chancery at its November term, 1821, against the executors of Lisa and Clamorgan, dissolving the injunction obtained on the original judgment rendered in 1813, and reviving the lien of said judgment — to the reading of which, the defendant’s counsel also objected, and the Court sustained the objection and excluded said documents.

The plaintiff gave in evidence, the contract between Frederick Bates and Simon (118) Pnilipion declare! on in the first count, and a deed of conveyance from Peter Chouteau an! wife, dated the fith of August, 1817, to Manuel Lisa, force; tain premises therein descr.bad, and proved that the lois sold by Bates lo Philips on, were part of the grou id sold stud convoyed by Chouteau and wile to Lisa; and also the Sheriff’s dee 1 to O. N. Bostv/ick for the undivided third of said two lots, sold by virtue of a julgne.it an! execution a., the property of Manuel L'sa, &c.

It was also p -oved by the plaintiff, that the consideration of $1600 expressed in the contract, ha! been received by Bates in real property, at an agreed value conveyed to him by the plaintiff’s brother, in part satisfaction of a debt due to the plaintiff from his said brother.

The defendant’s counsel then moved the Court to instruct the jury, that there was no evidence to sustain the second count, which instruction was accordingly ghen, Ac.

The first error assigned, is for striking out the first count. It is insisted that the statute law of this State, R. C., p. 6J2, section 40, does not authorize the Court to strike out a faulty count, upon m ition, at the trial; and also, that said first count is not faulty, but goo! in law, and wjulJ entitle the plaint iff to judgment on general demurrer. Tito words of the statute are, that “where there are several counts in a declaration, one or mure of which are faulty, and entire damages are given, the verdict shall be good, but the defendant may apply to the Court to strike out such faulty count or counts, or to instruct the jury to disregard them. The clause is certainly an. extremely awkward one, and presents the subject, as it were, heels foremost. It should lead, “ where there are several counts in a declaration, one or more of .which are faulty, the defendant may apply to the Court to strike out such faulty count or counts,, or to instruct the jury to disregard them, but if he shall neglect to do so, and entire damages are given, the verdict shall be good.” And it has been practiced upon as if it so read. This construction, which the Courts have given to it, is the only sensible one of which it is s íseeptible. The objection that it was done upon motion at the trial, wiibout.previous notice, has no force. The statute seems .clearly to intend, that the thing shall be done in the presence of the jury, and, of course, at the. time of the trial. The wisdom of such a provision may be well questioned, but the law is so. s

To show that the count is a good one, the plaintiff’s counsel have cited various authorities, some of which are misquoted, and the others (which have been all examined with the exception of 7 Mass. 31,) do not apply. The cases in 6 T. R. 606, and 3 (119) JBos. and Pull. 162, were both brought to recover the consideration after eviction by the representatives of the vendor. The case in 5 John, is where the vendor refused to convey agreeable to the terms of a verbal contract, and sold the land to another person. The case in 1 Dall, is misquoted. There is no question as to the general law. That an action for money had and received will lie to .get back money paid upon a contract which the other party refuses so complying with, or which it has become impossible for the other party to execute, (i. e.) where the consideration has failed, or the contract is actually or virtually rescinded.

The first count of this declaration presents no such case. It does not aver the nature or extent of the hindrance occasioned by the demise of Smith & Lisa, or that it was removed, or that it had become impossible for the representatives of Bates ever to make a regular deed, &c. For aught appears, the time fixed for making the regular deed has not arrived. There is, therefore, no error in the judgment of the Circuit Court, eilher in the construction of the statute, or in applying the general principles of the law to the first count.

The second error insisted on, is the rejection of the certified copy of the deed from Bates to Smith &Lisa, as being the best evidence-the nature of the case admitted of. The principle contended for is a sound one, but is most unreasonably invoked on this occasion. To admit secondary evidence, it must, under the circumstances, not only appear to be the best, but it must be the best legal evidence.

As the law then stood, it gave no authority to the Recorder to certify the truth of the copy, either from the original deed itself, or from the record of it. And nothing short of a sworn copy, (or what the law made equivalent to a sworn copy,) of the original deed could have been legally offered in evidence.

It is contended also, that the Court erred in rejecting the certified copies of the record of the Superior and Supreme Courts, and Peake’s Eci., p. 43, is relied on. The authority is directly against the position contended for. Peake says, the whole record, and not a part only, must be exemplified or copied, in order that the Court may be in possession of the full effect of it; for a partial extract may bear a very different import from the whole taken together-.” Here it cannot be prelended that the documents” offered, comprised the whole record. It was not the practice of the Courts to make up their records in that form. Such is the settled doctrine in relation to judgments at law ; whether in equity cases the exemplification of the decree (120) only would or would not be sufficient, need not now be settled. Since in the case under consideration the instruction given by the Court below as to the second count, would have been equally correct if the decree had been read in evidence.

There was no evidence to prove that the consideration had failed, or that the contract had been virtually rescinded by the refusal or neglect of Bates or his representatives to execute it according to the terms agreed on. A clear non sequeter, to urge that no deed or title whatever can ever be made by the heirs and representatives of said Frederick Bates, or of said William Smith and Manuel Lisa, because the title to the lots may have been encumbered before or since the contract, or that Bates’ representatives will not make a regular deed of sale so soon as the hindrance occasioned by the demise of Smith, and Lisa shall have been removed -r because Bates himself and' his representatives have neglected or refused to-do so upon the application ot the plaintiff, which, for aught appears, was before the time agreed on.

This view of the subject makes it unnecessary to decide whether a party can recover at all in this form, of action, (money had and received,) where property at a fixed value, and not money, is the consideration, which may be well questioned.And also whether any other consideration than that set forth in a written contract can be shown by parol, which has been decided in various ways in different States» and even in the same State.

Upon the whole matter, the judgment of the Circuit Court is affirmed, with costs.


author: M^Gibk, C. X,

text:
      Ward v. The State.
    t. It is the duty of the grand jury to inquire diligently into all offences against law committed in their several counties.
    2. In the exercise of their duties, they may cause such persons to come before them to give evidence, as they believe most likely to hare a knowledge of any violation* of the taw.
    a. A witness summoned to appear before the gi and jury and give evidence, and refusing to tellct what person or persons have so bet on Faro, other than himself, and not naming himself,’ is liable to impris inment.
    4. It is the province of the Conn to judge, whether any direct answer to the question propounded will furnish evidence against the witness.
    5. The witness is not bourn] to answer, when his answer may di close a fact which forms a necessary and essential link in the chain of testimony, sufficient to convict him of crime — and of this he is to judge.
    01V APPLICATION for a supersedeas, on a writ of error from the Ciremt Court of St. Louis county.
   M^Gibk, C. X,

delivered the opinion of the Court.

The case appears by the record tobe, that at the late term of the Circuit Court for the county of St. Louis, the grand jury lor said county causeé a subpoena to be issued for said Ward, to appear before them and testify generally, without saying in what particular matter or cause he was to testify. Ward accordingly appeared, and was sworn to give evidence to the grand jury. He went before the grand jury to testify.

The first question asked by the foreman of the grand jury was this: Do you know of any person or persons having bet at a faro table in this county, within the last twelve months ? To which the witness answered, “ I do.” The foreman then desired the witness to tell what person or persons have so bet, other than himself, and not naming himself. The witness declined answering, saying that he could not answer without implicating himself. Ward^twas then directed by the Court to answer the requirement of the grand jury, but not to-name himself as a better; which he refused, alledging that to answer thus would implicate himself. Whereupon the Court committed him to prison, till he should consent to give the evidence required, and till the further order of the Court.

A writ of error is sued out, a supersedeas asked for.

(121) On this state of facts, several questions are made. The first in order is, that the grand jury have no right to interrogate a witness in this general way;, but that an indictment should have been drawn up, charging some particular persons with crimes, and that the witness should then be required to give his testimony as to the matter of the indictment. Otherwise the grand jury may send for every person in the county, and inquire generally of each if he knows of any offences against law; and that this would be oppressive to-witnesses, and dangerous to citizens.

The first answer to this is, that it is the duty of the grand jury to inquire diligently of all offences against law. Now if it should ever happen that a grand jury should determine to have summoned every person in the county, with a view to make the experiment, if perchance they might find out some offence, I have no doubt that it would be the duty of the Court to withhold its process and stop such a course. This would be an abuse of power.

The next answer to this is, that no such case appears by the record. I take this case to be an ordinary case, when perhaps the jury had probable cause to believe that some offences had been committed against law j and that so believing, they desired in discharge of their oaths, and of their duties to their country, to inquire ; and how should they inquire ? Not by going into the secret recesses of gamblers and gambling devices, to ask and seek information, but to send for persons who might, in their opinion, be most likely to possess evidence relating to these matters. It is a solemn and important duty that every citizen owes to his country, to give evidence in Courts of Justice against offenders against the peace and good order of the community. A grand jury should be considered trustworthy in this matter. They stand as a rampart between a malicious or incensed prosecution in case of life and death ; no man can be brought to trial, on the lowest or the highest offences known to the law, unless the grand jury shall say so j yet they are not to be trusted with the power to send for witnesses, till some malignant prosecutor or some injured person shall cause an indictment to be sent up to them. This would strip them of their greatest utility, would convert them into a mere engine, to be acted upon by Circuit Attorneys or those who might choose to use them. This point is untenable.

The next objection is, that the act of the Legislature respecting witnesses, does not authorize the Court to imprison in this case ; because it is conceived that the authority there given is only to be exercised when a witness refuses to giye evidence (122)-in some cause pending, and that here no cause could be said to be pending, as it does not appear that even an indictment was before the grand jury.

The language of the act of the General Assembly is, that any person summoned as a witness in any cause depending in any Court of Record, or before Commissioners, Referees, or other persons appointed under the authority of the Court to take his deposition or testimony, and failing to attend, not having a reasonable excuse, may* he compelled by attachment to appear,” &c., “ and any person so summoned and attending, who shall refuse to give evidence, on oath or affirmation, shall be committed to prison by the Court or other person authorized to take his deposition or testimony, there to remain; &c., until he shall giv<\..such evidence.” See Rev. Code, 796-7.

It is insisted by the counsel for Ward, that the true construction of this act is, that before a witness can come under its operation, the witness must be summoned before the Court or other person authorized to take testimony ; and also that there must he a cause depending before such Court or person.

This construction is not a correct one; my reading of the act is, that if any person shall be summoned in any cause depending in any Court of Record 5 here I drop the words in any cause depending in any Court of Record,” and read, that if any person shall be summoned as a witness before commissioners, referees, or other persons appointed under the authority of the Court, to take his deposition or testimony, and-shall refuse to give evidence, sUch person shall be committed to prison till he shall give such testimony, See. I understand that a grand jury is a body known to the law, and that they act under the authority of the Court, and have a right to take testimony. According to this view, there is no error on this point.

The next inquiry is, was the witness right in refusing to answer the question on the ground that the answer would implicate himself? The record shows that the game at faro is played with cards, by one person as hanker against any number of persons, each person playing for himself, without any aid from the others, against the banker; and that there is no common interest among those persons playing against the hanker. Thus it appears that each player against the hank is separate and independent of all others. The inquiry made by the grand jury is, tell who bet at the game of faro, not naming yourself.” The answer of the witness is, (supposing him to be A.) that if I tell that B. C. and T). played, it will be either full or (123) partial evidence that I played. This is the whole argument of the case. An argument which I think is totally untenable'in law and reason j and I am very clear that the witness is bound to'answer the question propounded by the grand jury. Suppose A. should swear that on the 10th March, in the market house, he saw B. play at faro. Then A. is indicted for playing at faro on the 10th March, at the market house, and on the trial the prosecution should give in evidence, that on the trial of B., A. had sworn that on that day, at that place, he saw B. play; would any on® pretend that the indictment is proved ? The answer is obvious. t

I understand the rule laid down hy Chief Justice Marshal, in Burr’s trial, 245, to he the true rule of law. It is this, that it is the province of the Court to judge whether any direct answer to the question that may be proposed Will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would he sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction. In such case the witness must himself judge what his answer will he, and if he say on his oath he cannot answer without accusing himself, he cannot he compelled to answer.

Both parties rely on this rule. Apply the rule to the ease before the Court t The witness says he cannot answer without accusing himself of crime. The question is, who did you see betting at faro except yourself? It is believed that a direct answer in the negative to this would be, I saw no one bet at faro. This-ahswer, I think, aH will allow, does not accuse him; but Suppose his answer must bh, that he saw B, bet at faro, can it not be true that though E. bet, yet he, the witness, did not ? Does the mere fact that one man saw another commit crime, prove in law or reason that he who saw the crime committed was a participator? The only irresistible fact that is contained in it is, that he who saw the fact must have been in such position, with respect to the actors, that he could see or know the thing he swears to.

The rule then is, that the Court must judge whether a direct answer would furnish any matter for his conviction. If the witness answer that he saw no one bet, or that he saw B. and C. bet, he furnishes no matter that would be a necessary link in the chain of testimony, to convict him of betting at Faro.

(124) Suppose A. indicted for betting at Faro, what in law must be the evidence? The first link would be, that there was a Faro Bank, that there was a banker, and that A. and the banker did play at the game, and that A. and the banker did bet on the event of the game. These several links would form a chain of testimony sufficient to convict A. Now, though it be true, that without proof of the exislence of the bank and the banker, no crime can be predicated thereon, yet it Í3 equally true, that the facts that the bank and the banker both existed, forms no part of the offence of betting at Faro. The essential links are, that there was a betting on the game ; these two must be coupled together, otherwise no offence can exist; and these two must be coupled with a third link, that is, that A. bet on the game. Then his of-fence is complete, entirely so, without naming who was the banker, or who else bet at the same time. Can it be pretended, that' if it is said by A. that B. bet at the game, that on the trial of A. it must be proved that B. bet, before A. can be convicted?

I will answer that it cannot be so pretended. This I think most clearly shows, that there is nothing solid in the objection of the witness.

Let us put a case where a direct answer to a question would implicate a witness. Thus, did you set up and keep a Faro Table ? Now, here the Court can clearly see, that if the answer be yes, the witness would subject himself to the penalty for setting up and keeping a Faro Table; and if the answer be no, he cannot so subject himself. But whether the answer be yes or no, is unknown to the Court; and in this case the witness must be the judge, whether his answer will be yes or no, and he may say he cannot answer this question without implicating himself. But in this vase it is said, if the witness is bound to tell who bet at the game, without naming himself, then those persons who are named will be examined as to the fact, whether he bet; and if the witness is not compelled to name who did bet, then they will remain unknown to the grand jury, and cannot be examined whether the witness bet. I understand this doctrine to be grounded more on the fear of retaliation than on any sound principle of law. Will the law permit a man to keep offences and offenders a secret, lest the offenders should in their turn give evidence against, him ? I have looked into the cases cited at the bar, and I am unable to perceive any principle, in any of them, which ought to vary the foregoing opinion. '

(125) The supersedeas is refused in this case: and also in the case, Kembly a. The State.


text:
    Brun v. Dumay.
    Where the error is in the judgment of the jury, on the facts, this Court cannot correct it — the party should move for a new trial, and except to the judgment of the' Court overruling the motion.
   Wash, J.,

delivered the opinion of the Court.

This was originally an action commenced before a Justice of the Peace, by Du-may v. Bum, on an account for work and labor, and goods- sold and delivered, to the value of fourteen dollars and a half. Dumay got judgment before the Justice for ten dollars. From' which judgment Bran appealed to the Circuit Court, where on a trial, de novo, Dumay got judgment for fourteen dollars, from which Brun has appealed to this Court. The account sued on, consists of several small items; one of which is, To two tables, $8.” The hill of exceptions show, that on the trial of this cause in the Circuit Court, the appellee gave no evidence in the cause to the Court (sitting as a jury) to-substantiate and prove any other item, or charge, in his account, on tile among the papers and records of this cause on which the plaintiff’s action was brought, than the item and charge therein contained, of and for two tables ; for which said tables, the plaintiff has charged in his said account only the sum of eight dollars ; and that in relation to- the value of said tables, the plaintiS' proved that each table was worth the sum- of seven dollars,” &c.

The error assigned and relied on is, that the judgment of the Circuit Court is given for fourteen dollars and entire costs p when-it should have been given only for eight dollars, and have adjudged the costs in the Circuit Court against Dumay, agreeable to the provisions of the 13th see. of “ An act concerning costs,” which subjects the plaintiff to' the costs in the Circuit Court when he recovers less than the judgment before the Justice, &c. The evidence most clearly did not warrant the verdict or hading of the Court (sitting, as a jury,) and the defendant should have moved.fora new trial for thfit cause.

The error is-in the judgment of the jury on the facts,, and not in that of the Court on the law.

(12t>) Repeated decisions have settled that for such errors, the party injured, is-without remedy in- this Court. The judgment of the Circuit Court, is, therefore,, affirmed, with costs. The decision on this point makes it unnecessary to look much into the question raised by Dumay’s counsel, on his motion < to dismiss- the writ of error, growing out of the time and manner of talcing the bill of exceptions. From-what is said' of the matter, the 'practice would seem very loose and irregular, and? should not be countenanced.


author: M’Girk, C. J., Wash, J.,

text:
    Bean, Oden and Rector v. Valle, Janis and Valle.
    3.Depositions filed but not preserved on the record, in a Chancery cause, cannot be used before the Supreme Court, on the trial of an appeal from the decree of the Circuit Court.
    2. A plea of the statute of frauds, should expressly aver, that the contract concerning the land, was not in writing — and should contain an answer to all the other facts not expressly denied by it.
    3. Where JB. endorses a receiver’s receipt “transferred” and signs the same and delivers it toK. with verbal instructions to deliver said receipt ¡o a third person, upon me payment of a certain sum or money — it Is not neeesssary for IC. to do any act in writing; there is no act in writing left for him to do. The payment of the money and delivery of the certificate, constitute a valid agreement.

      4. A specific performance of a contract will not be decreed, where it appears in evidence that the vendee had knowledge of a valuable mine upon it, and concealed the fact from the vendor.
    5. Mere inadequacy' of price, unless so great as to amount to evidence of fraud, is no ground for refusing a specific performance.
    6. Payment of the purchase money', is not such a part performance of a contract for the salé of lands, as to take it out of the statute of frauds; nor is a mere taking possession of the lands, without the consent of the vendor, and without a declaration of the intention with which possession was given,such part priformance.
    ?. under the statute of frauds and perjuries, it is not necessary that the consideration of the agreement be in writing.
    IN CHANCERY, appeal from the Circuit Court of Jefferson county.
   M’Girk, C. J.,

delivered the opinion of the Court.

Vallee, Janis & Valle, brought their bill for a specific performance of a contract, for the sale of a tract of land, against the defendants.

(127) The Court made a decree for the plaintiffs, Valle, Janis & Valle. Bean, Oden and Rector appealed to this Court. The error assigned is a general one, which is, that the decree is erroneous ; under this assignment, we will only look at the decree, the bill, answer and exhibits. Before I proceed with the case, I will advert to one point made by the appellants, which came up as matter of practice, which is, that it appears by the record that the cause was submitted to the Circuit Conrt on the bill, answers, &.C., and also on depositions filed. Certain depositions are now produced, and the appellants’ counsel insists on the right to use them before this Court, as a part of the facts on which the decree is founded, or should have been founded; it is certified on these depositions that they were filed in the Circuit Court. It is objected that the depositions cannot now be used, because they are not preserved on the record as directed by the 42d section of the act to regulate proceedings in Chancery, (Digest, 645.) I am clearly of opinion the appellees are right in their objection. The 42d section of the act says, “ it shall be the duty of every Court of Chancery (from whose decree an appeal lies) to cause the facts on which they found their decree, fully to appear upon the records, either from the pleadings and decree itself, or from a state of the case agreed by the parties or their counsel, or from an examination of witness reduced to writing by the commissioner, or by a special ver*diet found by a jury empannelled for that purpose.

By the 28th section of the same act, the Court is required to appoint a commit sioner, whose duty it shall be, says the section, to take testimony in any cause when required thereunto by the Court, and to report thereon, &c.

The 46th section of the same act says, “ that in all appeals from a Court of Chancery, the Supreme Court shall examine the record, and take into consideration such facts only as appear by said record to be the facts upon which the sentence or decree appealed from was founded,” &c.

These depositions appear to have been taken, not by the commissioner, but by a Justice of tlie Peace, and unless the facts appear upon the record by one of the four modes required by the 42d section, it is most clear to me they cannot be taken any notice of on an appeal.

I will now proceed to the facts contained in the pleadings of the parties, and those contained in the decree. It appears that on the third of July, 1824, one of the defendants, J. L. Bean, obtained from the receiver of public money, for the St. Loui3 (123) land district, the following receipt, (to-wit:)

Receiver’s Office, St. Louis, 3d July, 1824.
Received from Jonathan L. .Bean, of St Louis city, Mo., the sum of one hundred dollars, being in full for W. half S. W. qr. of section No. 4, township No. 38, N. range No. 5 E. containing eighty acres, at the rate of $1 25 per acre, signed G. F. Strother, Receiver.”

That immediately Bean, with others under his direction, entered on the land and dug for lead ore; that some lead was raised therefrom, but the prospect was not very good. That in the meantime Bean offered to sell the land to one Duncan for $100; that this operation continued till about the month of November in the same year, when Bean left the land and went to St. Louis, and appointed an agent to attend to the land. That before he went to St. Louis, he proposed to sell the land to the complainants, and that no agreement was then made; that mining was still carried on under the agent without much success. That, sometime in the month of November in the same year, Bean wrote and delivered to one ICeemle the following letter :

Mr. A. Jams, Sir: — Since my arrival at this place, several applications have been made to me for the half quarter section of land adjoining your furnace, but owing to my having made a previous arrangement with you, I felt myself in honor bound to give you the preference. Mr. ICeemle, who is on a visit to your mines, will thereiore make the arrangement with you the same as if I were present. Esteem.yours, &c.
J. L. BEAN.”
. If Mr. Janis is not present, Mr. Valle will please read the above. Bean.”

Which letter was written at St. Louis, and addressed on the outside to Valle, Janis Si Valle, and together with the receipt of the Receiver above mentioned, delivered to one Charles Keemle, for the purpose of enabling him to dispose of the land to complainants, who then were, and for some time before had been, doing business under the name, firm and style of Valle, Janis &. Valle. That at the time Bean delivered the letter and receipt to ICeemle, he gave to him verbal directions to dispose of the land, and get therefor, if he could, $125, and if not, then to take $100; he also gave to Keemle at the same time, a letter to Garraty, his agent, the contents of which were not proved.

That a few days thereafter Keemle gave the letter to Janis, one of the complainants, and proposed to sell the land to him for $125, which Janis refused to give, (129) stating that the land was of no value to him but for the wood on it, and of its contiguity to his own land, and that because the diggers on it were troublesome to him, he would buy it, and that he would not give more for it than the original price.

That Keemle endeavored to get more for the land,but being unable todo so,agreed to take $K)0, and delivered to said Janis the receipt of the Receiver, with the following endorsement thereon: “ Transferred to Valle, Janis & Valle,” and signed “ J. L. Bean,” which signature was admitted and proved to be in the hand writing of Bean, and the body of the transfer was alledged by the bill, and not denied by the answer, to be in the hand writing of Bean.

It was expressly admitted by the respondents’ counsel to be so, by an admission signed by them of record.

It was also proved that Bean was fully paid the §100 for the land ; and that Bean, when informed of the sale by Keemle, expressed himself well satisfied. It appears also that Bean afterwards sold the land to Oden, for what consideration does not appear, and that Oden soon thereafter so'd one half thereof to Rector, for what consideration does not appear; and that botlr Oden and Rector, vr hen they bought, knew of tire sale to the complainants ; a id it also appears that immediately after the purchase by the complainants, they went into po.session and went to mining, and soon discovered a valuable lead mine. Rector’s answer denies fraud and combination, and insists on the statute of fraud, and also on tire registry act; insists on inadequacy of price, and fraud and suppression of truth by complainants. Bean’s answer insists on fraud in complainants in suppressing the truth, inadequacy of price, &c.

After Bean and Rector had answered, they moved for leave to tile the pleas of the statute of frauds, which leave was refused.

This is not assigned for e-ror, nor a point mide in argument. I suppose whatever point might have been made on this m liter is abandoned. At all events the pleas were clearly bal, for the same reason that I will hereafter show Oden’s plea is bad; they are the same as Oden’s in substance and form.

The Court ought to require, when its discretion is applied to, that the plea or amendment should he issuable irr fact, which these pleas were not. They should also have been sworn to: Cooper’s Equity Pleading, 231. Replications were put into the answers of Bean and Redor, ami then the cause as tp them was set for hearing. Oden filed a plea of the statute of frauds, which was demurred to, and the demurrer (130) sustained; he had leave to file an answer on terms, and having failed to do so, the bill was taken pro confesso, and set for hearing as to him also.

The matter of this demurrer was not agreed at the bar, nor is it all mentioned in the points made by the appel'tf.nts’ counsel. I will, however, as it fairly comes up, bestow some attention on it. This plea contains no averment that the contract was not in writing, &c.

It should expressly aver that the contract was not in writing. Cooper’s Equity Pleading, 256, 225 seq.

This plea should also contain an answer to all the other parts not expressly denied by it.

It is true these reasons are not within the scope of those assigned by the demurrer, if I understand them rightly, but as the opinion of the Court is for the right party, that opinion must stand.

As to the resid te of this case, the appellants’ counsel have made and relied on the following points:

First. That taking a!! the testimony together, Keemle, as agent, executed no writing whatever.
Second. That the endorsement on the hack of the Receiver’s certificate, does not show what land is transferred, nor how much, nor for how much.
The third point of the defence against the decree is, that the complainants were guilty of unfairness, mspressio veri and mggestio falsi.
Fourth. That the price is greatly inadequate.
Fifth. That the statute of fraud covers the case, and therefore no specific performance can be decreed.

I will examine these points in the order in which I have stated them.

First, that Keemle did nothing in the name of Bean in writing. I admii that Keemle did no act in writing. The evidence is, and the admission is, that Bean wrote on the bade of the Receiver’s receipt transferred, and signed his name thereto, with the express intent that Keemle might deliver the receipt to complainants, if they would give for the land one hundred dollars. No act in writing was left for Keemle to perform; what he had to do could not be done in writing, to wit: simply to deliver the paper when he was satisfied as to the one hundred dollars. If this transfer has any effect at all, (which I will consider hereafter,) it was delivered to Keemle like an escrow, the delivery of which is always in pais. If this had been a' deed duly drawn and signed, and sent to be be delivered by an agent to a particular person, provided he would pay before hand a certain sum of money, and on presentation (131) such person should pay the money — surely the delivery would be good, and the transaction good to pass the estate: so that there seems to me to be no difficulty as to this point, and the question as to agency presents no difficulty.

The second point to be considered is, whether there is sufficient connection between the receipt of the receiver, and the transfer on the back thereof to show what land or thing was transferred, and how much land, if any, and for what sum.

This transfer being on the back of the receipt does most satisfactorily satisfy my mind that it is the identical land mentioned in the receipt that is transferred. If the transfer had been on a separate piece of paper, without any other description than it has, then it would not be capable of itself to show what was transferred, but when a note, bond, or any other instrument, has the words “tranferred to A” endorsed thereon, no one can reasonably be at a loss to know to what thing these words apply.

The remaining branch of this objection is of grave import, and presents to my mind much difficulty, which is, whether the transfer should not show the consideration, which this does not show. No doubt if it were not for the Statute of Frauds, the consideration could be shown by parol testimony. I will defer the further consideration of this branch of the objection, till I come to consider the case under the objection which relates to the Statute of Frauds.

The third point is, that a specific performance ought not to be decreed, because the complainants suppressed their knowledge of a valuable lead mine, being contained in the land. Many authorities are cited to sustain this point. I admit that if these things had been proved, the authorities would apply to a ease thdt might arise, but which has not arisen in this case, and a solid objection might thus be formed against a specific execution of an agreement. The only evidence 3 can discover, looking that way, is that immediately after 1he sale to complainants, they took possession of the laud and went to work thereon, and soon discovered a valuable lead mine.

Tint it was contiguous to their land and lead furnace; the circumstance of their contiguity might indeed enable them the moie etsily to discover the secret value of Bean’s land, but it does not prove they did -do so, though connected with the fact that they made a discovery soon after they began mining thereon. This discovery might well have been made without the least particular knowledge of any cer-(132) tain body of iead mineral being contained in the land. Wnoever is at all acqua'nted with the operation of mining, must know that a man may live on land for half a century, may dig into it often and deep and discover noth ng of value 3 another may thereafter, or he m iy himself thereafter, by one d iy’s labor, discover a mine of great va'ne. All the mining that was done on this land, before the crm-plainants got it, was under Ihe eye and inspection of Bean, from July till November, and then for a short time under the inspection of his agent 3 and the eyidence is, that for all this time, eyen till the lime of the complainants purchase, nothing presenting the prospect of much profit had come to light 3 there is no evidence lliat the complainants were ever 00 the land, or had any communication with Ihe agent or diggers belonging to Bean. This point appears to me to be wholly groundless.

Tne next point is, that the price was inadequate, the bargain a hard one, and that Chancery will not decree a specific performance where ibis is the care. Tim is true to a certa n extent, but not true to the extent it must, go to avail the appellants any thing in this case. The authorities cited to support this position are, Mostloch v. Buller, 10 Vessey. 29; Sugden, 170. I have not got 10 Vesey. 3 find in Sugden, under this head, a reference to this a tthority, bat Sugden cites it expressly to show that mere inadequacy of price is not a r fiicicnt ground to itfu.-e a specific peifoimance, (second America r ed.tlon from fifth-London, i9>.) In this fame edition, 189, which I suppose is the authority referred to by the counsel above, Sugden says, “that a Court of Epiity cannot refuse to assist a vendor merely, on account of the price being unreasonable, and a spec fie performance will certainly be enforced if the price was reasonable at the time of the contract made, however disproportionable it may become afterwards. If, however, a man be induced to give a., unreasonable price for an esta'e, through the frnn 1 or misi-ep esenlatlon of the vendo -, or by an industrious concealment of the defects in the estate, equity will not compel a performance.

Tne appellants to this point cites Pow. on Con‘s. 28, 152, lo £9, and 200, 201 In this first eitatiou, I fi id the doctrine laid down by Powell, “ that inadequacy of price abstracted from all considerations, seems of itself (upon reyision of tile best cu l.or-jties) to furnish no ground upon which a Con t of Equity will set aside, or lather relieve a party to a contrac4 3 the law of Engles i neter having fixed any proportion (133) that the price shoif d bear to the th.ivg purchased. Bid if the canse of inequality of price be founded in circumstances from whence a Court of Ejnity may conclude that the consent to accept such was not f. ee, or was conditional, being had under an impression that circumstances were oth<> wise than they were represented to the party accepting such unequal term-, in such case, if the party contracted with be acquainted and take advantage thereof, it will furnish ground for a Court of Equity to set such contract aside; ” and I should suppose much more' to reiuse its aid.

It seems also if the seller be in want of money, and the buyer knew this, and helped to enthrall him. equity will not help the buyer: same book, 156.

In the same book, 200 a 201, Mr. Po.vell says that “ an agreement for the sale of an estate, which from the nature of it, when compared w.th tile circumstances of either of the parties to it, furnishes decisive evidence of his being surprised, will be set aside in equity, although there be no surprise, Baud, or circumvention actually proved, and though a conveyance had-been made pursuant thereto.” The case of Wharwood v. Simpson, 2 Vernon, 183, is cited to support this position. The position taken by Powell is a strong one, and I have no doubt is supported by the case cited by him : but I doubt if the case cited by Poiosll is sound, either in principle ox-law ; but suppose it to be correct, I cannot see that it is like the present case, according to the report given of it by Mr. Powell. It was a case where a steward had for many years been employed in the management of an estate; he articled with a person employed by the owner to become the purchaser at £,5,0(10, and by the articles it was agreed, that he should either pay the whole money, or might return land to make up what he paid short in money of the £15,01)0, and he obtained a conveyance of a part at an under value, aliedging that it was not material what sum was mentioned to be the co.isideration, and he had sold other paitéis and paid money to the amount of £ 1,500 as the vendor appointed, and he now offered to return so much of the land as would make up the £15,000.

The Court, on a bill brought for that purpose, set aside the articles and the conveyance muds to the vendor, except as to what had been sold; declaring that they looked upon the vendee but as an agent for the vendor, and one in whom he had reposed great trust and confidence, which the vendee had deceitfully abused ; and that the articles themselves seemed to manifest surprise, the vendor having occasion to sell to raise money, and yet the articles left the vendee at liberty to pay as small a (134) sum as he pleaded, and return what of the laud he pleased fo make up (he value. Mr. Powsll ai Is, ‘-that the Court assumed a greater latitude in this ease, because the time fixed by the articles at which he was to pay or return Ihe land, had elapsed.” As to the ground which the Court took in this case, (hat this steward was to be considered the age.it, and that he had abused his trust, the case does not show at all that the vendee was in any respect the agent for tho sale of the land ; and it does show that for that purpose there was another person employed, yet because he was agent for the management of the estate, they make him agent for the sale also. I admit that this, on the part of the vendor, was a foolish contrae! ; but that every bargain, which is not a wise or saving one, should of itself and for that reason furnish manifest ground of surprise, I deny. If this be law, the trading business of the country would ultimately fall into the hands of Courts of Chancery.

But in the case at bar, there was no trust reposed in the appellees; there is no evidence they had any special secret means of knowing that Bean was about to b« surprised. Bean had mined on the land from July till November with others under him, and in that time he did not find this valuable lead mine. Bean says he bought the land with a hope that it contained lead, and doubtless the appellees hoped so to* when they bought of Bean ; but that they knew of any thing particularly valuable^ there is no evidence. We have seen from Sugden, 189, that the price must be made*. quate at the time, and it must he grossly so. In the case Gwyne v. Heath, 1 Br. Ch. ca. 9, cited by Bridgman’s Index, p. 57, Law is said to have observed that to set aside a conveyance, there must be an inadequacy so strong, gross, and manifest, that it must be impossible to state it to a man of common sense, without producing an exclamation at the inadequacy. Lord Eldon (in Trecothe and Coles, 9 Vesey, 246, Bridg. Index, 57) is reported to have said, inadequacy of price does not depend upon giving pretium affedionis, from any peculiar motive beyond what another man would think the reasonable price ; but unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive evidence of the fraud in the transaction, it is not a ground sufficient for refusing a specific performance. Accidental subsequent advantage made of a bargain, is no evidence of inadequacy. From a view of these authorities, I can see no ground to refuse a specific performance. If any evidence existed to show that the complainants were in possession of important (135) facts, and that they concealed them from the other paity, then inadequacy of price might raise a strong presumption of fraud.

The next and last point is, that this case is within the statute of frauds. Our statute of frauds is in terms as to this particular matter, a copy of the English statute of 29 Chas. II. j

By way of obviating this objection to the decree, the complainants rely on a part performance:

First. T'ne payment of the purchase money.
Secondiy. Being let into possession. The evidence is clear enough that the purchase money was paid. Whelher payment of the purchase money is to be considered part performance, the authorities are contradictory. Sugden, 87, che cases are brought together, and I think the better authority is, that payment of the purchase money is no part performance: see Lord lledesdule’s opinion in the case of Winan v. Cook, Scho & Lefroy, 22, 40.

The next inquiry is, whether being let into possession is 'such a part performance as takes the case out of the statute. It seem3 to be agreed by the English Chancellors, that a delivery of possession by the vendor to the vendee, shall be considered a part performance and take the case out of the statute of frauds: Sngden, 84. I think, however, that question cannot be discussed now ; T can find no evidence that there was any delivery of possession. The evidence on this point is, that immediately after the sale as aforesaid, the complainants entered upon the possession of the land, and thenceforth continued to possess and occupy the same as owners, with .the knowledge of said Bean, until July; that they soon made a discovery of lead ; and that after the knowledge of the discovery came to Bean, he recognized the sale and-expressed himself well satisfied, &c. Here was no delivery of possession; but there was a taking possession. Wow if it appeared that Bean lived near the spot, and saw the complainants occupy, and made no objection, I should take it to be strong evidence that they took possession by his leave. The fact that they took it, and exercised ownership over it, and that Bean knew it, does not in my opinion amount to a delivery of possession; for aught appearing on the record, Bean might, at the time they took possession, and afterwards while they kept it, have lived in a distant country. I understand the possession should be delivered, and the object and reason of the delivery should be clearly made out, to have been in pursuance of the agreement, without which a British Chancery Court would not take possession to be (136) part performance. Neither of these points being sufficient to take the case out of the statute of frauds, I will proceed to investigate the remaining point, which is, whether the agreement is itself sufficient to take the case out of the statute. The words of the act of the General Assembly of the Territory of Missouri, (which was in force- when this transaction came into being,) are, that “ no action shall he brought whereby to charge any executor or administrator upon any special promise, to answer for any debt or damages out of his own estate, or whereby to charge the defendant upon any agreement made in consideration of marriage, or any contract for the sale of lands, tenements or. hereditaments, or any interest in or concerning them, or any lease thereof, &c., unless the agreement upon which such act.on shall be brought, or some memorandum or note thereof, shall be in writing and signed by the-party to be charged, &c.”

There is no provision in our statute of frauds similar to that section in the British statute, which respects the sale of goods, i think this Territorial act must govern this case, as it was in force at the t me-this transaction came iirto e-xistence, though it was repealed in 1825. For whatever rights and liabilities the parties created or incurred, al the time of this transaction, those rights and liabilities still remain.

The statute says, “no action shall be b, ought onariycontiaet for the sale of land.” I do not so much consider this transaction a contract lor the sale oi'land, as a contract whereby land is actually sold ; it is, nevertheless, a case embraced by the statute; a3 it is a contract for an interest in land, I consider it an equitable sale, and equity raises a corresponding duty on the seller, to make the title good at law, unless the statute interposes to prevent it. I consider this transfer sufficiently certain as to the thing sold, and certain as to quantity of interest sold. It is not like the case in Sugden, much relied'on by the appellants $■ that-appears, in the text, to have been a case where an estate was sold for a certain number of years, purchased with a rent reserved, and the Court could not ascertain a portion of the rent; but Sugden himself cites by his reference a number of cases, contra; and note 1, at the bottom of the page, denies that the point as stated by Sugden, is to be found at all in the register. Salden 65¡, 2d American edition.

But it is contended- by the appellants’ counsel, that this transfer or contract, should show the consideration as well as the thing to be done.

(137) Theie is much difficulty on this point. We will examine whether the consideration, cause or inducement to make an agreement or contract, is necessary to appear in writing or memorandum, to be signed by the party to be charged therewith.

On the one side it is contended that the consideration of the agreement must be fa writing, as well as the thing to be done on the part of the seller of the land, and that in this ease, the word “'transferred” on the Back of the receiver’s receipt imports no-consideration. In the identical clause in question, respecting a contract for the sale-of land, I find no decision but on that part which says, no action shall be brought whereby to charge the defendant, upon any special promise, to answer for the debt, default or miscarriage of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, &c. There have been several decisions. The first on this subject took place in 1804, in the Court of King’s Bench in England, and reported in 5 East., p. 10, by the name of Wayne v. Walters ; the case appears to be-a case where one person undertook in writing, to pay the debt of another, in consideration of forbearance to sue.

On the trial, the plaintiff gave in evidence the following note — “ Messrs. Wayne & Co.: I will engage to pay you by half past 4 this day, fifty-six jpounds and expenses on bill, that amount on Hall; signed, John Hall,” dated, &e.

On this it was objected on the part of the defendant, that though the promise to pay the debt of another was in writing, yet as it did not express the consideration of the promise, the promise was void by the statute of frauds and perjuries. The Court of K. B. decided that the consideration must be in writing, as well as the special promise to pay the debt of another, 5 E., p. 10.

The next decision relating to this subject was made in the year 1805, by the same Court, 6 E. R. 307; Egerton v. Mathews. This decision took place on the 17th section of the British statute, which says, “no contract for the sale of goods for the price of BIO or upwards, shall be good, unless the buyer shall accept part of the goods as earnest, or pay a part of the price; or unless some memorandum or note of the bargain be in writing, and signed by the party to be charged by such contract,” &c. In this case the Court held, that a note or memorandum in writing of the bargain, was sufficient to satisfy the statute, without the consideration of that bargain (138) being in writing. This is, in principle, a decision contrary to the former. By a note appended to the case, Packard v. Richards, in 17 Mass. R. 144, it seems in 1821 the Court of If. B. unanimously affirmed the doctrine in the case Wayne v. Walters. These cases and the case of Goodman v. Chace, decided in 1816, are the only cases decided by the British Courts relating to the point under consideration. But in the latter case, the point was waved. In the United States, the first case on this subject is that of Sears v. Brink, in New York, in which the Court recognized the doctrine in the case of Wayne v. Walters, 3 J. R. 210. The next case is that of Leonard v. Vredenburgh, in which the same doctrine is recognized, but not without some expressions of dissatisfaction, 8 J. R. 37.

The doctrine in Wayne v. Walters was mentioned in the case of Violet v. Patterson, 5 Cranch R. 142, in which it was thought by the Court, that the doctrine did not apply to the case then before them, so that this last case amounts to nothing. The last American case I have found is that of Packard v. Richards, 17 Mass. R. 122. In this case, Ch. J. Parker reviews the whole of the foregoing cases, so far as they relate to the question, whether the consideration to pay the debt of another must be expressed in writing, as well as the promise.

In this case the doctrine in Wayne v. Walters, and the N. Y. cases, are overruled. The Court express their views at large, and with more reason to my mind than any other case I have seen.

The case of Wayne v. Walter's was always denied by Lord Eldon to be law; see Vesey, jun., exparte, Gordon. In this case he decides expressly to the contrary-of that case, 15 V. jun. 286,

Thus it appears that great authorities are arrayed on both sides of the question.

It has been said often, that the case of Wayne v. Walters was never well received in England, and that the great authority of the Court K. B. could not satisfy Lord Eldon, the British bar nor that great man Kent; see Leonard v. Vredenburgh, 8 J. R. 37. In this view of the subject, the question is still open to us, to receive that decision which in the opinion of the Court, shall best comport with the words and reason of the statute of frauds.

In the act of this State, as well as that of England, the title is, “An Act to prevent frauds and perjuries.” Our act was passed in January, 1815. What mighthave been the evils intended to he remedied hy the English act, I cannot at this remote period (139) of time undertake to determine with much certainty. But from the dicta of judges and lawyers, it may be supposed, that frauds and perjuries had become so common and alarming in their consequences, that the Legislature thought it expedient to provide a remedy. The 4th section of the statute of 29 Charles II., was adopted by our Legislature. At the same session, they adopted the common law, and some of the British statutes, down to the time of the 4th of James I. The statute of frauds being subsequent, was not in force, and the Legislature thinking it a good law, enacted it with a view of preventing frauds and pel juries. But I cannot think at that time, either frauds or perjuries were so alarming as to require such a signal legislation.

Our Legislature, no doubt, enacted the statute more with a view to the future times, more in reference to what frauds and perjuries might arise, than with an eye to those already existing. The moral history of this country at that day, will afford but little light on the reason of making the statute. But when the British statute was passed, we know the moral condition of that country was desperate, but what the particular evils were which drew forth the statute, I have never learned.

We know that England had not long emerged from the horrors of a dreadful civil war, and that it was then rapidly assuming a permanently reformed government, whence it may be expected that real estate was thought to be rapidly rising in value, and investments of money in real estate presented a greater prospect of profit than any thing else. In our own country, after our short war, in 1816-17 and 18, men seemed to think the possession and ownership of real estate, was the chief human good. When lands rose to enormous prices, men parted with their money freely, without much regard to quantity, for land. If then, such might have been the case in England, we may suppose the Legislature thought lands too valuable to be passed by mere verbal agreement, and I do suupose, also, that witnesses could be found, and were found, who would swear a man’s real estate away oír a pretended parol agreement. To prevent such-frauds, and to close the door to such perjuries, I suppose the statute was made. That part of the statute which it is our business to consider, says,, “no action shall be brought upon any contract for the sale of land, unless the agreement or some memorandum or note thereof shall he in writing, and signed fay tho party to he charged therewith, or his agent.” From the peculiar manner in which (140) this statute is worded, I am led to the conclusion that it was not intended the whole of this agreement or contract on both sides, should be reduced to writing j when the statute speaks of the action to be brought on a contract for the sale of land, it no doubt embraces in its view both sale and consideration. But it forbids the action being brought, unless something else collateral should first he done, and that is, that the agreement to sell be in writing, or at least a note or memorandum should be made, and this agreement or note thereof is to he signed by the party to be charged therewith. This latter requisition convinces me, that the Legislature did not intend that all matters relating to the price, and time when to be paid, must necessarily be ■contained in this note, memorandum or agreement ;■ otherwise they would have declared that both parties should sign the agreement or note. I take the word agreement here in its popular sense, without reference to the consideration or reason (Tor making it. A note or memorandum is something less than the main subject in detail, and if the note only says, witness that A. agrees to sell to B., a piece of land in fee, and A. should sign this, I hold the statute is satisfied as to A., but if B. refuses to take the land, then B. must show on suit for a specific performance, such note signed by B. In my opinion, this is all the statute requires, and the vendor and vendee must each look to his own part of the transaction in case of future difficulty.

The decree of the Circuit Court is affirmed, with costs.

Wash, J.,

dissenting.

I dissent from the opinion of the Court on two grounds, mainly:

First. The bill seeks the specific execution of a contract, made by Keemleas agent for Bean, and there appears to me no evidence, either of his authority to contract, or of a contract executed, &c.; and
Second. I think the true construction of the statute of frauds, &c., requires that the consideration should be expressed in writing as well as the contract, and in tiiis case there appears to me neither contract nor consideration, so expressed as to take it out of 'the statute.


author: Wash, J. M’Gikk, C. J. ToMTKttrs, J.

text:
    Cochran v. Bird.
    Where a trial was had and judgment given, before a Justice ot the Peace, on the 27th December, at which time the defendant prayed an appeal, but did not enter into a recognisance until the 5th January following — held, that the party appealing should, have notified the opposite party, in writing, of said appeal.
    ERROR from, the Jefferson Circuit Court.
   Opinion of

Wash, J.

Cochran sued Bird before a Justice of the Peace, and had judgment. Bird appealed to the Circuit Court, where, on motion, his appeal was dismissed for want of notice to reverse which judgment, Bird presents the present writ.

The trial before the Justice took place on the 27th of December last and the transcript shows that the appeal was taken on the 5th of January thereafter. It appears from the record, that the appellant oifered to prove in the Circuit Court, “ by two witnesses, that on the day when said case vías tried and judgment was rendered against said appellant, before said Justice, the said appellant had prayed an appeal to said Circuit Court, and offered to give bond and security, as by law required in said appeal ; and thereupon moved said Circuit Court for a rule against said Justice, to show cause why the prayer of said appeal should not be entered on his docket, and a perfect transcript made out and certified tQ this Court;” which motion was overruled by the Circuit Court. The 23d section of an act, establishing Justices’ Courts, and regulating the collection of small debts, it. C., p. 481, provides, “ that in all cases of appeals not prayed for on the day the trial is had, the party appealing shall notify in writing, the opposite party or his agent, &c.” For want of the notice required by this section, the appeal was dismissed.

It has been repeatedly settled, that the party praying an appeal, must tender his security at the time, or his prayer is to be disregarded. The appeal cannot be considered as taken or prayed for, in the sense contemplated by the statute, until the bond or recognizance be taken or tendered. But then it is the clear right of the party upon tendering the security required, to have his appeal entered on the docket as (142) taken on the day of trial. Why the Justice neglected or refused to do so, in the case under consideration, does not appear, and he should have been cited by the Circuit Conrt to make known the reasons of his neglect or refusal, or to make his transcript conform to the facts and whole truth of the case.

I think, therefore, that the judgment of the Circuit Court is erroneous, and should be reversed, and the cause remanded for further proceedings in conformity to this opinion. This is the only point I have deemed it necessary to notice.

Opinion of

M’Gikk, C. J.

In this case my opinion is, that the Court did right in dismissing the appeal for want of notice, on the record as it appeared in the Circuit Court, and that the judgment is affirmed. As to the motion made there to receive proof that the Justice had refused or neglected to grant the appeal, and take bond as required by law, I think the Court ought to have received the proof, and if it had been sufficient, to have granted a rule on the Justice, and the party in this way perhaps may bring up his case, if the Justice should not show good cause. But in the mean time, I hold the appeal on that record (as it was at the time the motion was made,) ought to have been, and was rightly dismissed.

Opinion of

ToMTKttrs, J.

Cochran sued Bird before a Justice of the Peace and had judgment, from which Bird appealed to the Circuit Court of Jefferson county. The trial before the Justice of the Peace took place on the 27th December last, and the appeal appears by the transcript to have been taken on the 5th day of January next ensuing. In the Circuit Court the cause was dismissed on motion of the appellee ; and to reverse this judgment this writ of error is prosecuted. It appears on the transcript of the record of the Circuit Court, that the appellant offered evidence, that he prayed an appeal on the day of the trial of the cause before the Justice of the Peace; and then also offered to give such bond and security as might be required in the appeal; and then prayed the Court that as the transcript of the J. P. did not show that said prayer of appeal was made on the day of trial, the Court would grant a rule against such Justice, to show cause why the prayer of said appeal might not be entered on his docket, and a full and perfect transcript made out and certified to this (143) .Court; which motion of the appellant the Court refused to grant, or to hear the evidence by which the appellant could establish the facts of his having prayed an appeal. The statute provides, that in certain cases within the jurisdiction of a Justice of the Peace, the person thinking himself aggrieved by the judgment of the Justice, may have liberty to appeal to the next Circuit Couit 5 the party appealing* or some person for him, entering into a recognizance with suiiicient security, in a sum suiiicient to secure the debt or damages adjudged against him ; and that in all cases of appeals not prayed for on the day of trial, the party appealing shall notify the opposite party in writing, &c.

The appellant contends that his appeal being prayed for on the day of trial, and the allowance of the appeal being a matter of course, it became his right to have the appellee in Court without a notice in writing. This seems unreasonable ; he might have prayed an appeal which he never meant to perfect. But it further appears, that he offered to prove that bond with suiiicient security was 0.1'ered as by law required in said appeal.

It appears on the transcript that the appeal was not perfected till the eighth day after the trial. Of this the appellant could not have been ignorant, and as he did not offer to prove that the appeal was perfected on the day of trial, and that the entry was wrong, it is but reasonable to suppose it was perfected when it purports so to be. This the appellant knew, and of this the law presumes the appellee lo be uninformed. It is then unreasonable that the appellee should be required lo taire notice of the appeal. The appellant should have given notice. But it is asked, is he to lose his right by the negligence of the J. P. ? The answer is plain, he had lost his right of having the appellee in Court without written notice. And it is unjust that the appellee should suffer by an act of the Justice, which by law can affect only the appellant. The Circuit Court, in my opinion, did right to refute the mandamus, and the cause was rightly dismissed. The plaintiff in error does not insist that the Circuit Court erred in refusing to hear the evidence, for the purpose of enabling him to obtain a certiorari, on a suggestion of diminution of record ; therefore I will say nothing on that point.

The judgment is affirmed, Judge M’Girk concurring with me in opinion that the-Circuit Court committed no error.


author: Tompkins, J.,

text:
    Theoteste, (alias Catiche,) v. Chouteau.
    The ordinance of 1787, which provides that “neither slavery nor involuntary servitude shall exist in lite N. W. Ten ¡tmy,” d. es not imjiaii any rights ikcn existing —and negroes born and held as slave», previous to the passage of said ordinance, are not entitled to their freedom by reason theieof.
    APPEAL from St. Louis Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

This was an action of trespass, &c>, in the form prescribed by law, to try the right to freedom; plea, not guilty $ verdict and judgment for the defendant. On the trial of this cause, it was proved that the plaintiff was horn in the year 1782, at Prairie du Rocher in that part of the late North-Western Territory which now forms a part of (he State of Illinois 5 that she was born a slave in the year 1782 as aforesaid, and there remained as such till about the year 1809, When she was brought to St. Louis, in the then Territory of Missouri, and sold as a slave ; and that the present defendant derives title through one Manuel Lisa, who purchased her of a person who held her in slavery in Illinois, and derived his title from the original owner. The plaintiff prayed the Court to instruct the jury, <•' that if they believed from the evidence, that the plaintiff was born a slave in the late North-Western Territory of the United States, now State of Illinois, in the year 1782, and was held there as a slave since 13th July, 1787, and has been since held as a slave, they ought to find for the plaintiff.” These instructions were refused, and the jury were instructed, that on such ■evidence they ought to find for the defendant.

The clause of the ordinance relied on by the plaintiff, reads in these words:— "There shall be neither slavery nor involuntary servitude in said Territory, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted.”

This article, it is contended by the defendant, does not operate to divest vested rights, first, because the ordinance provides that the inhabitants of the Territory shall be protected in the preservation of their rights and property ; and by the act of ces(145) sion, it is stipulated, that the inhabitants shall be protected in the enjoyment of their rights and liberties: 1 vol. Laws U. S., 473.

This Court decided in the case of John Merry v. Tiffin and Menard, that a person born in the N. W. Territory since the ordinance of 1787, was free, although the mother might have been a slave. The opinion has these words, “ the act of cession of the State of Virginia provides that the inhabitants shall be protected in their rights and liberties. This provision is completely satisfied by securing to them such rights as they then had,” viz : at the time of the making of the act of cession by the State of Virginia. John Merry was declared free because he was bom after it had been provided by the ordinance, that neither slavery nor involuntary servitude should exist in the territory; because, no right to property could vest before such property had existence.

The person holding John Merry in slavery, lost no right which had been secured to him by the State of Virginia. But here is a different case. The defendant claims to hold the plaintiff in slavery, through another whose right was vested as early as the year 1782. It appears that either the general terms “ neither slavery nor involuntary servitude shall exist in the territory,” must yield to the provision in the act oí cession, or that the provision of that act must be violated. This it cannot be supposed Congress intended to do. The judgment of the Circuit Court ought then in my opinion to be affirmed.

      Absent, M’Girk, C. J.


author: M’Girk, C. J.,

text:
    Collier v. Easton and Russell.
    A judgment at law, obtained by fraud, may be set aside in Chancery.
    APPEAL in Chancery from the Circuit Court of St. Louis county.
   M’Girk, C. J.,

delivered the opinion of the Court.

The bill sets forth that Easton sued one Prospect K. Robbins in the Lincoln Circuit Court in two suits. That Collier became the special bail of Robbins in one of them only. That Easton having recovered judgment against Robbins in both cases, (146) sued out executions, which were returned nulla bona, and body of defendant not found. That Easton aflerwards commenced two actions of debt against Collier in St. Charles Circuit Court, alledging a recognizance and breach in both cases. That the first of said suits against Collier, he alledges is the only one in which he entered into a recognizance. Easton recovered judgment at St. Charles and made the money. That in the second suit so brought against Go.Her, the judgment and execution against Robbins were set forth, and also a recognizance of Collier as special bail, which he alledges he never entered into, and that there is not among the records of the Lincoln Circuit Court, any record of such recognizance. That he, Collier, and the Cleric of the Lincoln Circuit Court have examined the records, and can find no such recognizance ; that to the last mentioned suit he, Collier, pleaded the plea mil .tiel record of the judgment, mil tiel record of the execution, and mil tiel record of the recognizance; that issues were made up and tried on these plea» in the St. Louis Circuit Court; that on the trial the plaintiff produced a transcript certified by the Clerk of the Lincoln Circuit Court, under the seal of the Gourt, upo», which the Court found the issues for the plaintiffs. The complainant avers that the. recognizance set forth in the transcript is the same given by him in the other suit against Robbins; that the Cleric inserted the same by mistake, or that Easton made up the transcript out of parts of the two cases against Robbins. This bill prays a discovery from Easton as to the matters theiein contained, prays for an injunction against the judgment at law, and general relief. To this bill there is a demurrer for want of equity. T 13 O.rc r.t C > irt sustained the demurrer and dismissed the bill ; to reverse that decree the cause is brought to this Court.

The errors assigned are, that the decree should have been for the complainant, &c. I will consider the objections made by the counsel for Easton to the equity of the bill.

The first and chief one is, that by this bill Collier seeks to re-try the issue of the wttí tie] recoid.

Second. That this mutter having been once tried at law by a Court of competent jurisdiction, cannot be re-examined in Chancery, even supposing the Chancery Court had jurisdiction of the subject matter.

Third. Though it may be that a Court of Chancery would grant a new trial, to be had in a Court of Lnw, o 1 a very extraordinary case of surprise, accident or mistake, yet as nothing of that kind is here shown, no relief ought to be granted.

(147) Fourth. No facts are alledged in the bill which were not in the knowledge of the complainants, at the time of the trial of the issue at law.

Many authorities are cited to show that wiiere a defendant neglects to set up matter in ins defence at law, he cannot ai'te.wards make such matter the basis of a suit in equity, unless there w is some accident or fraud of which the party could not avail himsell at law : 4 Johns. R. 570; 2 J. C. R. 554; 3 D. 357.

The second case c ted is the case of a surety who sought relief against the creditor. The principle laid down in the case is, that where a surety has been sued at law, and makes his defence, which is overruled as insufficient, he cannot afterwards on the same facts obtain relief in equity.

The third ease, is a case which dec'des this princip’e, that after a trial at law the party cannot have the aid of a Court of Equity, unless he can impeach the justice of the verdict, by facts or grounds of which he could not avail himselfjor was prevented doing it by fraud or acc'dent, or the act oi the opposite party, without anv negligence on his part. The fi st case cited I do not lecollect: I have not the book before me, but I think it contains nothing more than the general principles as stated above by Easton’s counsel.

The foregoing doctrine is admitted by Collier’s counsel. But it is insisted by him that in this ca-'e the ¡acts that one recognizance was by mistake of tire Clerk put in the transcript where none existed, or that Easton took parts of two records to make the one he gwa in evidence against Collier were not tried at law, nor could they be tried under the plea of rml tie] record. I am of opinion that the complainant is entitled to the relief he asks.

In this case, tiie complainant could not, by the forms of law, have any other plea than he had, and lie could not ietrac.t the ceitificate of the Clerk. But in Chancery it is otherwise. In Chancery, a judgment may be set aside for being obtained by fraud. It may be perpetually enjoined, because p-edcated on fraud, and if this fraud was set up as a defence in a Court of law, and adjudged against the party, then he would be concluded, but if the fraud could not be set up at law. then the party may set it up in Chancery a3 the basis of relief j this doctrine, I think, is sustained by th® cases cited hy Easton’s counsel, to a considerable extent; at ail events, it is the doctrine of the books on the subject. I have no doubt that Collier’s case is within this principle.

(148) The decree is reversed with costs, and the cause is sent back to the Circuit Court for a new trial.


text:
    Strother v. Christy.
    •!. A defective description in a confirmation of a tract of land, must be supplied in the same way that defective descriptions are supplied in other instruments.
    5, A copy of a deed made and recorded in 1816, and certified by the ex-oificio recorder, will not be received as evidence in any cause depending, the law not authorizing the recorder to make out and certify copies.
    ERROR to St. Louis Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

This is an action of ejectment brought by Strother, to obtain the possession of land in the vicinity of St. Louis, from Christy. On the trial of the cause, the plaintiff offered in evidence, a copy of a confirmation of a tract of land, four hy twenty ar-pents, lying in form of a right angled parallelogram, within which was contained the land for which the action was brought 5 this being a certified copy of the confirmation, was admitted by the Court to be read; but in the confirmation of which a copy was read, a reference was made to book C, page 339, in the Recorder’s office, for the boundaries of the land, confirmed in the following words, viz: and as respects the four arpents agreeably to a reserve made in a sale from Joseph Brazeau to Louis Labeaume in book C, page 339 of the Recorder’s office.” The plaintiff then offered in evidence, the certified copy of the deed of sale from Brazeau to L. La-beaume referred to as aforesaid, and it was rejected by the Court, The plaintiff then produced a writing, purporting to he a copy of a deed formerly made by Joseph Bra-zeau to said Pierre Chouteau, for a tract of land contended to he the land sued for. This was rejected hy the Court.

The plaintiff then asked the Court for leave to take anon-suit, and the Court directed a non-suit to be entered accordingly 5 the plaintiff then moved the Cour t to set (149) aside the non-suit and grant a new trial. The Court overruled the motion.

It is assigned for error—

First. That the above mentioned copy of the entry in the book of land titles, marked C, page 339, was rejected.

Second. That the above mentioned copy of a deed from Brazeau to Chouteau was rejected.

First. The copy of the confirmation above mentioned was admitted as evidence by authority of an act of the Assembly, which provides, that a certified copy of any confirmation had before the Board of Commissioners, for the adjustment of land claims within the State, or before the Recorder of land titles, by the said Recorder, or by the person having the custody of the books and papers containing such confirmation, &c., shall be received in evidence." The paper rejected by the Court, and for the rejection of which the first error is assigned, contains a description of the land, of the confirmation of which, evidence has been received. The statutory 'provision is, in the opinion of the Court, to be strictly construed; and if the plaintiff had need of any evidence not contained in the confirmation, he should have produced such evidence as would have been admissible at common law.

. Most certainly the deed of Brazeau .to Chouteau, was no part of the confirmation. These confirmations are acts of officers known to the law, the registers of which are necessarily confined to one place, and the law has made the certified copy of such confirmation evidence, because the public convenience requires that the books containing the registers should be kept at one place, and because it would be inconvenient to permit every person to have access to books for the purpose of taking copies. If the certified copy of the confirmation did not contain a sufficient description of the land confirmed, it is either the fault of the confirmee or his misfortune, and he must supply the defect in the same way a defective description must be supplied in any other instrument.

Second. The writing for the rejection of which the second assignment of errors is made, is certified by the Clerk of the Circuit Court, and ex-officio Recorder for the county of St. Louis, to be a true copy from the record of a deed by Joseph Brazeau to Louis Labeaume, (Pierre Chouteau meant,) as found in his office. The loss of the original had been satisfactorily proved. The copy bears the date of 26th July, 1816.

(150) The law in force in 1816, provided that deeds made and executed in the (then) Territory, of or concerning any lands, &e., or whereby the same may be affected in law or equity, shall be acknowledged by one of the grantors, &c., or proved by one or more of the subscribing witnesses before one of the judges of the Supreme Court, (other officers were also authorized to take acknowledgments or proofs,) and recorded within three months, in the county in which such lands are situated, or the same shall he void against subsequent purchasers, recording the said deeds, &c., within the time prescribed by this section. The only object of the Legislature in this provision of the law, seems to be to impose a penalty on a person who, having become a purchaser, by his negligence or fraud, puts it in the power of his vendor to injure an innocent and subsequent purchaser. If the Legislature had meant to introduce a new rule of evidence, it certainly would have prescribed the rule, and not have left it to the Courts to guess at. The original being lost, the plaintiff should have produced the next best legal evidence.

The execution of the original has not been proved, and there is no legal evidence that the deed on record is a copy of any thing that ever had existence.

But even if the deed on record could be read in evidence on the trial of any cause pending in our Courts of law, (which is by no means the case,) the Clerk of the Circuit Court and ex-officio Recorder is not, by the then existing, law authorized to make out certified copies.

The judgment of the Circuit Court is affirmed*

      Absent, Judge Wash.


text:
    Ramsay v. Barcroft.
    To support an action of detinue,.the plaintiff must have a property either general'our special in the chattelif special, it must grow out of an actual possession or fo®coupled with an interest therein. (Note a.)

    ON APPEAL from the Cole Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This is an action of detinue brought by Ramsay against Barcroif, to recover a negro woman slave. The declaration contains two counts. The first is a general count,, the second is special. The defendant pleaded the general issue to the first county and demurred to the second, and had his demurrer sustained. Upon the trial of the issue joined on the first count, the facts as preservedlby a hill of exceptions, are substantially those set out in the-seeond countand appearto he,that one “Albert Boone being the owner of a certain negro woman slave, in the year 1827, delivered her into the possession of the defendant, and hired her to him for and until the 2Sth of Dec.,. 1827, and no longer — that after the expiration of the term for which the defendant had hired her, on the first day of January, 1828, whilst the-slave was still in the possession of the defendant, the owner hired her to the plaintiff for and until the 25th of December, 1828, for a full, adequate and valuable consideration, to be paid by the plaintiff; that Boone notified the defendant that he had hired said slave to the plaintiff, and requested him to deliver her up to the plaintiff, who afterwards, on the 1st day of January, 1828, demanded said slave of the defendant,.who refused to give her up, &c.”

(152) Upon this state of facts, the defendant moved the Court to instruct the jury. “ that the plaintiff had. not shown such a property in the negro slave in question, as would authorize a recovery in this actionwhich instructions were given and excepted to, and which are now assigned for error.

The counsel on both sides have discovered much ingenuity and research. The general rule of law applicable to- the case is, “ that the plaintiff must have a property either general or special in the chatteifand the actual possession or the right to immediate possession 1 Chit. Pl. 151. The absolute or general property creates a constructive possession, which will support this action. Special property, growing out of actual possession variously modified, is also sufficient in most cases to maintain the action. It is also held in one case, that special property accompanied with an interest in the goods, without actual possession, will he sufficient. In the case of Fowler v. Down, 1 Bos. & Pull. 47, Eyre, C. J., says: “It is not true, that in cases of special property, the party must once have had possession, in order to maintain trover, for a factor to whom goods have been consigned, and who has never received them, may maintain such an action.” The case then under consideration, was not a case of special property. This dictum, however, is recognized as law by Chitty, 1 vol. p. 152, and by Serjeant Williams in his notes to Swmtkrs, 476, with the modification above stated j that the special property must be accompanied by an interest in the goods. In the case of Coxe and others v. Harden and others, 4 Past. 210, it is held that the endorsement of the bill of lading by the consignors to their agent, to enable him to take possession of the goods on account of the consignors, would not enable him to sue in his own name, &c. In the case of Hotchkiss, sheriff, v. McVicker, 12 John. Rep. 401, it is laid down that the special property of a carrier, bailee, or a person finding a chattel, arises alone from possession. The true law, it is believed, will be found to be this, that the special property must grow out of an actual possession, or be coupled with an int*-est in the chattel. As where goods are shipped or forwarded to the order and at the risk of the consignee, or are delivered to a carrier, baillee, &c., to be delivered to a third person. In the case of Hotchkiss v. McVicker, above referred to in 12 John., the consideration whether the person claiming to sue by virtue of special property, be answerable over, is held to be a “ decisive criterion of the right to sue.” The doctrine in Bac. vol. 5, p. 260, and the cases there given, go to establish this criterion.

(153) In the case at bar, it cannot be contended that Ramsay was liable to Boone for the property in the slave, or can be held to pay the price contracted to be paid for her services; hiring is a species of bailment, the rights and liabilities of which flow from possession.

The judgment of the Circuit Court upon the demurrer to the second count, and in giving the instructions prayed for, was, therefore correct, and is affirmed, with ocsts..

(a.) See Chouteau and Keizer v. Hope, 7 Mo. R., p. 428.