author: Ryland, Judge.

text:
    Lemp, Respondent, vs. Pfund, Appellant.

      1. No exceptions saved.

      Appeal from St. Louis Court of Common Pleas.

      Hart & Jecko, for appellant.

      Hudson & Thomas, for respondent.
   Ryland, Judge.

In this case, the court below, on motion, struck out the defendant’s answer, and judgment was then given for want of an answer. The plaintiff not requiring a jury, the court assessed the damages. The defendant prayed for an appeal, and brings the case here.

There is no motion for a new trial; no exceptions taken to any act or judgment of the court below ; no motion saved and put on record by any bill of exceptions, and there is no bill of exceptions saved in the case. There is nothing on the record for this court to look into, and there is no reason why the case should be here.

The judgment is affirmed, the other judges concurring.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    Kingsbury’s Executors, Defendants in Error, vs. Lane’s Executor, Plaintiff in Error.
    1. The action of replevin did not abate by the death of the plaintiff and defendant, but might be revived in the name of their personal representatives.

      Error to St. Louis Circuit Court.

    This was an action of replevin brought by James W. Kings-bury against Hardage Lane, in 1843, for two negro women. Lane pleaded property in himself to the slaves. In November, 1849, the death of the defendant, Lane, was suggested, and . the appearance of his executors entered. In December, 1849, there was a trial .and verdict for plaintiff. The case was brought to this court and reversed. On the 3d of January, 1854, the executors of Kingsbury suggested his death, and entered their appearance. On the Sd of May, 1854, the court, upon inspection of the record, ordered that the suit be abated, to which the defendants excepted. The defendants thereupon moved the court to assess the value of the property replevied and damages for the use of the same, but the court refused to grant such motion, to which refusal defendants also excepted, and brought the case to this court by writ of error.
    Mr. Field and Mr. Darby, for plaintiff in error,
    in a printed brief, argued the following points : I. There was error in giving judgment of abatement; for the cause of action survived, and the representatives were regularly before the court. (Statute of 4th Edw. Ill, c. 7, de bonis asportatis in vita testatoris. 1 Williams on Executors, 512. R. C. 1835, tit. Practice at Law, art. 5, secs. 2 and 3. Tit. Administration, art. 2, secs. 24 and 25. 1 Chitt. Pi. 188. ' 2 Esp. N. P. 875. Com. Dig. Administrator B. 13. 11 S. & R. 131. 4 Mass. Rep. 480. 14 Mass. Rep. 231. 2 McCord, 194. Higgins v. Breen, 9 Mo. Rep. 497. Eitz. Nat. Brev. 59. Petrie v. Dulce, 2 Lutw. fo. 1120 — Coke’s Entries. 2 Sellon’s Practice, 124. 2 Troub. & Hal. Prac. 150. Graham’s Prac. 888. 22 Wend. 602.) The cases of Jones v. Littlefield, 8 Yerger, 138 and Rector v. Chevalier, 1 Mo. Rep, 345, were decided upon a different state of law from that now existing here. (Car. & Nich. Tenn. Laws, 65, 68. Lewis v. Outlaw, 1 Tenn. Rep. 140. 1 Terr. Laws, Mo. 849, § 35. Id. 924, § 20.) II. There was error in overruling the motion for an assessment of the value of the property replevied, and the defendant’s damages. (2 Sellon’s Practice, 164-5. 2 Tidd’s Practice, T03. Butcher v. Porter, Salk. 96. 2 Wilson, 83. 14 Mass. Rep. 231.)
    Mr. Polk, for defendant in error.
    1. The death of the defendant abates the action of replevin. (4 Mass. 480. 8 Greenl. 128. 19 Wend. 44T. IT Mo. Rep. 362.) 2. The action of replevin is abated by the death of the plaintiff. (1 Comstock, 163. 6 Hill, 558.) 3. The fact that steps were taken in the case after the death of the defendant cannot alter the case. (8 Watts (Pa.) Rep. 460.) 4. The court did right in refusing the defendant’s motion to assess the value of the property replevied and damages for the detention ; because, the suit having abated, no further proceedings could be had in it. (8 Greenl. Rep. 128.)
   Leonard, Judge,

delivered the opinion of the court.

This judgment must be reversed, and the cause remanded. The question is not without difficulty, and the result to which we have come has only been arrived at after a good deal of consideration. The propriety, however, of allowing a suit in replevin to be continued in the name of the administrator of a deceased defendant, considered in reference to the rights of either party, is so manifestly proper, in every point of view, and so free from every practical objection, that we felt it to be our duty to allow it, if it could be brought within the legislative provisions, in relation to the continuing of suits abated by the death of parties.

The action of replevin, confined, originally, to a tortious taking, has been greatly extended by our own legislation, until it has become a useful and common, and, indeed, tbe only effectual legal remedy for tbe recovery of personal chattels, where tbe party prefers a recovery in specie to a compensation in damages. A pretty large privilege is extended to tbe plaintiff in allowing him, upon bis own affidavit of ownership, to deprive tbe defendant of bis possession; but, to guard against abuse, a provision is made that, if be fail to establish bis title, be shall pay double damages for tbe use of the property during tbe time tbe defendant is kept out of it, and judgment shall be in the same suit rendered against him and bis securities, for tbe damages and a return of tbe property.

At tbe common law, tbe death of either party abated tbe suit, and all causes of action founded upon wrongs to person or property were^extinguished. Tbe administrator representing tbe assets, rather than tbe person of bis intestate, gave rise to tbe maxim that personal actions die with tbe person, which included within it all actions founded on wrongs, and in that form, but not actions ex contractu. This, however, even in early days, was considered quite too narrow an exception to tbe maxim, and, therefore, by tbe statute of 4 Edward HI, it was enacted that, “in times past, executors bad not bad actions for a trespass done to their testators, as of tbe goods and chattels of said testators, carried away in their lifetime, it was provided that executors, in such cases, should have an action against tbe trespassers in like manner as their testators should have bad if they were living.” And this act was extended by tbe courts far beyond its words, and, by construction, made to embrace all injuries done to tbe personal estate of tbe intestate, lessening it in value, (1 William’s Ex’rs, 670,) and, accordingly, executors and administrators afterwards maintained trover and replevin for¡a conversion or taking, done in tbe lifetime of their testators or intestates. (1 Broom’s Maxims, 404.) It, however, only gave the remedy to tbe administrator of the injured party against tbe wrong doer himself, and gave no remedy after tbe wrongdoer’s death against bis administrator, and fell, in other particulars, far short of an enlightened system of law. To remedy these defects, our legislature, at the revision of 1835, in the revised statute concerning Administrators, art. 2, secs. 24 and 25,) provided, in substance, that all civil remedies for wrongs done to the rights of others, except for injuries to the reputation and person, should survive to the representatives of the injured party, and against the representatives of the wrongdoer. Broader language cannot be imagined. It embraces all civil actions, and may be justly said to be an entire repeal of the old maxim, substituting in its place, in the next section, a provision in the shape of an exception, which subjects to the operation of the old rule mere personal injuries. ' Of course, under this law, the unjust caption, which was the cause of the present action, survived to the administrator of the plaintiff, and also against the administrator of the deceased defendant. But it is insisted that this form of action cannot be revived ; that an original action of replevin or detinue cannot be maintained against the administrator of the wrongdoer for a taking or detention committed by the intestate in his lifetime, and, therefore, by the words of our statute concerning the revival of suits, it cannot be continued against him. The only reason, however, why the action of replevin cannot be instituted against the wrongdoer’s administrator is, because, as an original suit, it is inappropriate to the altered condition of things. If the specific property taken by the intestate in his lifetime has passed into the hands of his administrator, who detains it, this is a mere individual wrong on the part of the administrator, for which he is personally liable, and if it is sought to be recovered in replevin, the action can only be brought against him in his own right, in respect to his own wrong, in taking or detaining property that did not belong to his intestate, and cannot be maintained against him in his representative capacity. This objection, however, does not exist to the continuance of an action of replevin, after the death of the wrongdoer. The possession of the property having been delivered to the plaintiff at the commencement of the suit, the proceeding is merely to determine the right and recover damages for the unjust taking or detention ; and if it is revived and continued against bis administrator, nothing can be recovered except the damages for which the intestate was liable. The provision of the statute in relation to suits abated by the death of a single defendant is, that “ the action shall not be thereby abated, if it might have been originally prosecuted against the executors, administrators, &c., of the defendant; but such of them as might have been originally prosecuted for the same cause of action, shall be substituted as defendants on the application of the plaintiff.'’ It is to be observed that the legislature have made no distinction between the different forms of actions ; but the courts, finding a class of cases that cannot be instituted against administrators without subjecting the assets to liability for their own personal wrongs, such as replevin and detinue, except them from the operation of those statutes providing for the continuing of actions upon the death of the original parties to the wrong or contract.

The legislature provide, generally, that all causes of actions, except for wrongs to the person or his reputation, shall survive against the administrator of the wrongdoer, and then, in relation to the continuance of suits abated by death, provide, in the same general manner, that a suit commenced against the intestate may be continued against his administrator, it it might have been originally instituted against him, and the argument is, that this particular form of action could not have been originally brought, and so cannot be continued against an administrator. The answer to this is, the reason why the courts will not allow it to be brought fails, where the question is as to its continuance, after having been lawfully commenced in the lifetime of the intestate. The legislature have not said that an action of replevin shall not be brought against an administrator, as such; but the courts, by an equitable construction of the statute, from the necessity of the case, in order to avoid subjecting the assets to liability for the wrong of the administrator, have, it is said, and must of necessity hold, that neither detinue nor replevin can be allowed as original suits against administrators in respect to their own wrongful detention of property that bad been previously wrongfully taken or detained by their intestates. This may be so, but there is no such necessity when the question is as to the continuance of an action of replevin, where the recovery is necessarily confined to the damages occasioned by the intestate’s own act, and for which his assets are admitted to be liable under our law.

Whether replevin can be brought against an administrator, upon an unlawful taking or detention by his intestate, for property still continuing unlawfully in the administrator’s possession, is not the question here, and we express no opinion about it; but admitting, for the present purpose, that it cannot, we yet think the action does not abate after it has been commenced, by the death of the defendant, but may be continued to a final judgment, in the name of his administrators. The ground taken in the Tennessee case, (Jones v. Littlefield, 3 Yerger, 133,) is not inconsistent with this view of the subject. It is there laid down that a suit in detinue cannot be supported against administrators, as such, upon the detainer of their intestate or upon their own detainer — not in the former case, for it is a wrong or tort of their intestate, for which the assets are not liable, nor they responsible, as administrators holding them, and entrusted with their appropriation and distribution ; nor, in the latter case, for the detainer is their own act, for which they are answerable in their own private capacity.” But here, by our statute, the original cause of action does survive. The original taking or detention is a wrong for which the assets are made expressly liable, and, in this proceeding, the damages to be recovered are confined to those occasioned by the original wrong.

Neither does this decision conflict with the case of McDermott v. Doyle, (17 Mo. Rep. 366,) where the question was as to the continuance of an action of detinue against the administrator of a deceased defendant, when the damages to be recovered for the detention may come down to the time of the verdict, and so embrace damages for which the administrator alone was personally liable; and the decision proceeds upon that ground. In Mellen v. Baldwin, (4 Mass. 480,) the application was by tbe administrator of a deceased defendant in replevin, to allow tbe suit to be continued against bim as defendant, and tbe refusal was put upon tbe ground that tbe cause of action, being a mere personal tort on the part of tbe original defendant, was extinguished by bis death, and not preserved by tbe statute of Edward, which gave tbe right of action to tbe administrator of tbe injured party against tbe wrongdoer only, and not against bis administrator, after bis death, and tbe court remarks : “If the administrator could not be compelled to take on bim tbe defence, neither can be be admitted on bis own motion, for bis right must depend on tbe nature of tbe action, and not on bis own consent.” But, in Pennsylvania, (Keite, Adm'r, v. Boyd, 16 Serg. & Rawl. 300,) tbe action is allowed to be continued against an administrator of a deceased defendant, without tbe aid of any statute, upon tbe manifest propriety of tbe thing, tbe court declaring that, in their system of law, replevin was a property suit much used and very beneficial; but, if the party who brought it were liable to be defeated by tbe death of tbe defendant, its usefulness would be much diminished, and tbe same view seems to be taken of tbe matter in South Carolina. ( Salvande v. Cripps, 2 McCord’s Rep. 164.)

We remark, in conclusion, that in replevin, tbe parties are, reciprocally, plaintiff and defendant; that tbe suit must result, if tbe parties live, in a judgment of recovery for one or tbe other, and when it results in favor of tbe defendant, be recovers not only tbe compensation provided for bim in tbe double damages given by tbe statute, but is secured in tbe payment of these damages and tbe return of tbe property, by a judgment against both plaintiff and bis sureties ; but tbe effect of allowing tbe suit to abate by tbe defendant’s death, is to deprive his estate of these benefits, and leave tbe property replevied in tbe bands of tbe plaintiff, without any security for its return, or compensation for tbe wrong done, other than single damages, if it turn out that tbe plaintiff bad no title to tbe property.

Let the judgment be reversed, and the cause remanded.


author: Leonard, Judge.

text:
    Diepenbrock & others, Respondents, vs. Shaw, Appellant.
    1. It is the settled law that exceptions must be taken at the time, and the bill prepared and signed during the term, and not afterwards, unless it is consented to.

      Appeal from St. Louis Law Commissioner’s Court.

    This action was brought to recover for lime sold and delivered. The items were specifically set forth in an account annexed to the petition.
    The answer contained a general denial of-indebtedness, and specific allegations, to the effect that the plaintiff had been overpaid for lime furnished prior to that sued for, to an amount exceeding the plaintiff’s demand, and this was set up as an offset. The answer was stricken out, upon a motion setting forth as reasons that it contained no specific denial of the allegations of the petition, and that the account set up as an offset exceeded the jurisdiction of the court. A judgment was rendered for the plaintiff. At the next term, the defendant asked leave to file a motion to set aside the judgment, which was refused, to which refusal he excepted, filed his bill of exception, and brings the case to this court by appeal.

      Blennerhassett & Shreve for appellant.

      Hart & Jecko, for respondent.
   Leonard, Judge.

It is the settled law, that exceptions must be taken at the time, and the bill prepared and signed during the term, and not afterwards, unless it is so consented to.

Here, the only exception taken, that has been properly preserved, so that it can be noticed by this court, is, the refusal of the lower court to set aside the final judgment rendered at a preceding term, and we see no error here. Judgment affirmed.


author: Ryland, Judge,

text:
    Brownlee & others, Respondents, vs. Allen, Appellant.
    1. A. leased to H. a tract of land upon which was a sulphur spring. A. was to make certain improvements on the land. H. was to reside upon it, provide the buildings with furniture, victualling and attendance, and give his whole time to the superintendence, care and management of the place, with a view to make it a popular resort for recreation and health, and a source of profit to the parties. As rent, A. (or his legal representatives) was to receive one half of the net profits, deducting necessary expenses for furniture, supplies, &c., and any loss was to he equally divided. All furniture or other personal property, purchased or acquired by reason of the agreement, was to be jointly owned by the parties. A. was held liable as a partner to a third person, of whom H. purchased materials for fitting up the buildings.

      Appeal from St. Louis Law Commissioner’s Court.

    This was an action for goods sold and delivered, brought against Hawley & Allen, as partners in the management of the Cheltenham Springs. Hawley did not answer, and a judgment by default was rendered against him. Allen answered, denying any partnership with Hawley, by whom the goods were purchased.
    The cause was submitted on an agreed statement of facts, from which it appeared that on the 12th of May, 1852, Allen & Hawley entered into' an agreement in writing, by which Allen leased to Hawley, for the term of eight years, the Sulphur Spring tract, near St. Louis, on the following conditions: Allen agreed to make certain specified improvements at a cost of not to exceed $5000. Further improvements might be made out of the earnings of the business of the place, if both parties agreed to it. Hawley agreed to go upon the premises with his wife to reside, and to give his whole time to the superintendence, care and management of the place, and to supply the buildings with proper furniture, victualling and attendance, with a view of making the place a respectable and popular resort for the recreation and health of visitors, and a source of profit to the parties. Hawley agreed to open and keep regular books of account, shewing all the Items of receipt and expenditure, and to report a balance sheet monthly to Allen. Hawley was to contract no debt for which Allen would be liaable to an amount exceeding $100, without Allen’s consent, under penalty of forfeiture of the contract. The contract might at any time be dissolved by mutual consent, and if, during the second year, it should appear that the business of the place would not pay a profit annually equal to six per cent, on $50,000, the contract might be terminated, at the option of either party, upon thirty days’ notice. Hawley was to make out and exhibit to Allen, semi-annually, an accurate statement of receipts and expenditures ; and in consideration of rent, there was to be paid to Allen or his legal representatives, one half of the net profits, after allowing for all necessary expenses, including furniture, supplies, servants and repairs, (except such as were agreed to be done by Allen,) and any loss was to be equally divided. A failure by Hawley to make out true statements, or to pay over to Allen his share of the profits, or to perform any other of the conditions of the agreement, was to operate ‘ ‘ forthwith to cancel and annul the agreement,” and authorize Allen or his legal representatives forthwith to resume possession of the premises and all improvements. Allen was to give no personal attention to the business. Hawley was to make no charge for the services of himself and wife, other than was covered by one half of the net profits. All furniture and other personal property, purchased and acquired by reason of the agreement, was to be jointly owned by the parties. Allen reserved the right at all times to visit and inspect the premises, and to sell the same subject to the contract.
    The goods sued for were purchased by Hawley, between June and August, 1852, charged to him in the plaintiffs’ books, and used by him in fitting up the buildings mentioned in the above agreement. Plaintiffs did not know of the existence of the agreement when they sold the goods. Hawley gave his own note for the goods in November, 1852, which was never paid. Hawley never complied with that stipulation in tbe agreement which required him to supply the buildings with proper furniture, &c. The business was carried on in the name of Hawley alone while it lasted. No part of the furniture brought on the premises by Hawley ever came into the hands of Allen, but was either sold under executions or deeds of trust against Allen, or remains in his possession. On the 17th of September, 1853, Allen notified Hawley in writing that the contract had been cancelled and annulled, and that he then cancelled and annulled it for all future time. Allen endorsed and paid notes given for debts contracted by Hawley in his own name in the purchase of goods, furniture, &e., on account of said business, one of which debts was contracted as late as January, 1858.
    Upon the facts thus agreed upon, the court below gave judgment for the plaintiffs against Allen, who appealed to this court.

      Glover & Richardson, for appellant.
    1. The agreement did not constitute Hawley Allen partners, as between themselves, and they are not liable as such to third persons, unless their acts or declarations have misled such third persons to act upon the presumption of a partnership, which is not pretended in this case, as it is admitted that the plaintiffs were ignorant of the agreement when they furnished the goods. 2. The fact that Allen was to receive a portion of the profits by way of rent does not make him a partner. (6 Halsted, 181. Story’s Part. § 48, 44, 45. 12 Conn. 69.) The rent was to be paid to Allen or Ms legal representatives, whereas if it was a partnership, the lease would be terminated by his death. 3. An agreement to share the losses as well as the profits will only create a partnership where an agreement to share the profits alone would do it. (17 Mass. 197. 10 Vermont, 170.) 4. But admitting that Allen & Hawley were partners, Allen is not liable for goods furnished to fit up the buildings. By the terms of the agreement, Allen was to put into the concern, as his part of the capital stock, the land and buildings. Hawley, on bis part, was to supply tbe buildings with furniture, &c., and be purchased of tbe plaintiffs a portion of tbe furniture wbicb be bad agreed to put into tbe bouse as so much of bis share of the capital stock. (Saville v. Robertson, 4 D. & E. top p. 398.)

      Wickham & Snead, for respondents.
    I. Tbe agreement dated May 12, 1852, contained all tbe essential ingredients of a partnership agreement. (Story on Part. § 2, 27. 16 Johns. Rep. 84. 3 Kent, 24.) II. At least, it created a partnership between Hawley & Allen as to third persons. (Story on Part. § 34, 85, 36, 58, 63. 3 Kent, 32. 16 Johns. Rep. 34.) III. Tbe debt sued for was contracted by Hawley, for tbe use of tbe business contemplated by tbe agreement, during the term thereby established. 1. It was contracted during tbe first year, and during that time, tbe partnership could only be dissolved by mutual consent. 2. Notice of dissolution was not given by Allen to Hawley until long after tbe date of tbe last item in tbe account. 3. Hawley’s failure to comply with any of tbe stipulations in tbe agreement only gave Allen a right to dissolve tbe copartnership, which be did not exercise until after tbe debt sued upon was contracted. 4. Allen, by giving the notice dated September 17, 1853, recognized tbe existence of the partnership to that date. IV. Hawley’s failure to comply with any stipulations in tbe agreement does not affect Allen’s liability as a partner, to third persons. V. Tbe fact that tbe goods were sold to Hawley, and entered in plain - . tiffs’ books simply against him does not exempt Allen from liability, it being admitted that they were used in tbe partnership and that tbe existence of the partnership was not then known to plaintiffs. (Story on Part. § 101, 138, 393, 63.) VI. Tbe partnership agreement clearly shows that Hawley was to contribute to tbe business only tbe services of himself and wife, and that all necessary expenses of furniture, supplies, &c., were to be paid out of tbe profits of tbe business, and in tbe event of loss, by tbe partners equally.
   Ryland, Judge,

delivered tie opinion of the court.

The only matter to which our attention has been called, is in relation to the partnership of Hawley & Allen. From the facts agreed, the court below considered them as partners in the Cheltenham Springs, and declared the law to be in favor of the plaintiffs. In this declaration of the law, this court concurs with the court below. The facts agreed to clearly show that there was a partnership existing between these defendants in this Cheltenham Springs adventure, and such being the case, Allen is bound, as such partner, for the goods purchased by his co-partner of the plaintiffs. The judgment of the court below is therefore affirmed; the other judges concurring.


text:
    Morgan, Respondent, vs. Allen, Appellant.
    1. See Brownlee v. Mien, ante.

      Appeal from, St. Louis Law Commissioner’s Court.

      Glover & Richardson, for appellant.

      Wickham & Snead, for respondent.
   Ryland, Judge.

The same facts in this case as in the case of Brownlee et al., v. Allen. The parties agree that the judgment of this court, in that case, shall determine this. The judgment below is therefore affirmed, the other judges concurring.


author: Scott, Judge,

text:
    Lisa, Plaintiff in Error, vs. Lindell, Defendant in Error.
    1. S. B. & L. owned an addition to St. Louis, a portion of which was laid off into lots, and the remainder not subdivided. An execution against L. was levied upon what was described in the advertisement and sheriff’s deed as the one undivided third part of the lots in the addition remaining unsold. The addition was well known by its name. It did not appear that more than one of the lots had been sold prior to the sheriff’s sale. Held, the description in the sheriff’s advertisement and deed was sufficiently certain to pass L.’s interest in the lots remaining unsold.

      Error to St. Louis Circuit Court.

    This was an action in the nature of ejectment, for an undivided one-third of lots 6, 7 and 8, in Smith, Bates & Lisa’s Addition to St. Louis. The petition stated that the lots were originally owned by Smith, Bates & Lisa, as tenants in common, and that all the interest of the latter had become vested in the plaintiff. The defendant set up an outstanding title in Oliver N. Bostwick, under a sheriff’s deed, and the validity of this title was the only question in the case.
    At the trial, the following facts appeared in evidence :
    On the 12th of November, 1825, a decree was rendered in the Supreme Court in favor of Francis W. Guisse and Jesse E. Snider, for the use of John J. Summers, against the executors of Jacques Glamorgan and the executors of Manuel Lisa. An execution issued upon this decree on the 15th of November, 1825, against the goods and chattels, lands and tenements which were of Jacques Glamorgan and Manuel Lisa at the time of their deaths. This execution was by the sheriff levied upon what was described in the advertisement of sale as “ all the right, title, interest, estate and property of the deceased (Glamorgan and Lisa) at the time of their death, or of either of them, in and to the following described real estate, viz: 'The one undivided third part of the lots which were not sold by the said M. Lisa, deceased, in the addition to the then city of St. Louis, laid out by said Lisa, Wm. Smith and F. Bates, «on the river, at the upper end of the city of St. Louis, and adjoining the ox mill of Labbadie.”
    The sheriff, in his return upon the execution, stated that he levied upon the real estate described in the advertisement, a copy of which was annexed to the execution, and after advertising according to law, sold the same to Oliver N. Bostwick ..on the 29th of April, 1816.
    On the 19th of May, 1826, the sheriff executed to Bostwick •a deed, in which the land conveyed was described as, “ all the right, title, claim, interest, estate and property of Jacques Glamorgan and Manuel Lisa, or either of them, at the time of tbeir death, in and to the following described real estate, that is to say : the one undivided third part of a piece or parcel of ground situated on the bank of the Mississippi river, north of the present limits of the city of St. Louis, and adjoining the ox mill of Labbadie, which piece or parcel of ground was laid out into lots in addition to the then town, now city of St. Louis, by said Lisa, Wm. Smith and Fredk. Bates; therefore the property which is hereby conveyed is the undivided interest of said Manuel Lisa in and to all the lots laid out upon said piece or parcel of ground, which was not sold and conveyed by said Lisa before the rendition of the judgment upon which the above named execution was issued.”
    Witnesses for the defendant testified that the addition of Smith, Bates & Lisa to St. Louis was laid out in 1817, and was well known in St. Louis in 1825 and 1826 ; that it was bounded north by Carr, east by the river, south by Roy, and west by M. Lewis ; that a portion of it was laid off into forty-eight lots, and the balance was not subdivided. Jesse G-. Lindell, a brother of the defendant, testified that he bought one of these lots in 1820, and this was the only evidence as to the sale of any of the lots prior to the sheriff’s sale. It was admitted that no plat of Smith, Bates & Lisa’s addition had been filed for record at the time of the sheriff’s sale.
    The following instruction was given by the Circuit Court;
    “If Lisa, Smith & Bates, being co-tenants and the owners in fee simple of the tract of land mentioned in the sheriff’s deed read in evidence by the defendants, some time in or about the year 1817, laid out the said tract into an addition to St. Louis, as mentioned in the said deed, and the said tract and addition were well known at the time of the levy and sale, by the description given in the sheriff’s advertisement or deed, (no. plat of said addition having been filed for record up to the time of the execution of the said deed,) and if the land in dispute is within the said addition, then the said deed was effectual to convey to the purchaser, Bostwick, all the interest of said Lisa, remaining unsold therein. That the interest conveyed is in express terms restricted to that actually owned or retained by Lisa at the time of his decease, without any other or more special designation of the particular lots intended to be sold, cannot operate to render the deed void for uncertainty.”
    The plaintiff excepted to the giving of this instruction, took a nonsuit, and afterwards brought the case to this court by writ of error.

      J. R. Shepley, (with C. D. Drake,) for plaintiff in error,
    argued the following points : I. The deed cannot operate to convey any larger interest or any other land than that levied upon and advertised to be sold. It is the land levied upon that is conveyed by the sheriff’s deed, and it is that which fixes what is sold. (Helms v. Alexander, 10 Humphreys, 44. Gibbs v. Thompson, 7 Humph. 181. Jackson v. JRosevelt, 13 Johns. 97. Jackson v. Be Lancy, 13 Johns. 538. Brigance, v. Erwin, 1 Swan, (Tenn.) 375. 10 Georgia, 74.) II. Under what appears on the deed itself and the defendant’s own proof, the deed would be inoperative, even if the levy was made upon, and the deed had purported to convey Lisa’s interest in the whole tract. A sale made in mass of property divided into lots is void. (Evans v. Ashley, 8 Mo. Rep. 185.) III. The deed is not rendered any better, nor is the sale any more valid because no plat of the addition was filed for record up to the time of the execution of said deed. 1. No plat of a town or addition was required to be filed until the 1st of April, 1826. (R. 0. 1825, p. 762.) 2. The levy itself recognizes the addition as made and existing, and the division of it into lots. IV. The deed is void for uncertainty. (Marmadnhe v. Tenant, 4 B. Mon. 211. Whatley v. JV'ewsom, 10 Georgia, 74. Brigance v. Erwin, 1 Swan, (Tenn.) 375. Jackson v. Belancy, 13 Johns. 551.)

      U. Wright and B. A. Hill, for defendant in error.
    1. The sheriff’s sale, in 1826, of all the interest of Manuel Lisa in the addition embracing the lots in question, was made upon a description sufficiently certain to vest the title of Lisa in the purchaser. (Hartt v. Rector, 8 Mo. Rep. 448. Landes v.
      Perkins, 12 Mo. 260, 241. Landes v. Brant, 10 How. (ü. S.) 373. Bank of Mo. v. Bates & Wise, 17 Mo. Rep. 583.) The case of Evans v. Ashley, 8 Mo. Rep. has no application to the case at bar.
   Scott, Judge,

delivered the opinion of the court.

There is no doubt but that it would have been the safer doctrine, in relation to sales of real estate by sheriffs, to have holden that, in no case was the sale an absolute nullity, so to be regarded whenever it was brought into question ; but that it was Dnly voidable, to be set aside on motion, at the return of the yrit, or afterwards, by a proceeding in the nature of a bill in equity. If such sales were regarded in this latter light, complete justice might be done between the parties, and innocent purchasers would be protected ; whilst, if regarded in the former light, irreparable injury may be done under circumstances wfich could not but cause regret at the result following the operation of the law. Experience has shown that a motion or bil in equity is the mode of redress generally resorted to, wkre really any injury has resulted to the parties from the mamer of conducting a sale, whilst the first objection has only beei taken, when, from after events, it was made the interest of theparties to have it declared a nullity.

L the case of Evans v. Ashley, (8 Mo. Rep. 185,) this tourt, following a course of precedents which seemed war-anted by law, declared a sheriff’s deed a nullity, when taken ii connection with the circumstances under which the sale was Bade — circumstances which showed that the description of the ptemises conveyed, given by the officer, did not serve at all to cfesignate the land which was really sold. In that case, the defendant in the execution owned but six small lots, in 12 J arpens of ground, laid off into lots, which was sold by the description of “12-J arpens of land, near the town of St. Louis, and south of Elias Rector’s, purchased by said Price of E. Hempstead’s administrator, of the estate of M. Lewis, deceased.” The instruction on which the cause turned was to the effect' that, if the tract of land was laid off into town lots and streets by the owner thereof, who sold six of those lots to the defendant in the execution, and to other persons other of said lots, and that the defendant in the execution was no otherwise interested in said tract of land than as owner of the said lots, then the title claimed under the sale by the sheriff is invalid.

Giving full scope to the principle laid down in the above case, and recognizing its authority to its full extent, we do not consider that it affects the cause now under consideration. Here, the description is, “ the one undivided third part of the lots which were not sold by said M. Lisa, in the addition to the then city of St. Louis laid out by said Lisa, Wm. Smith and F. Bates, on the river,” &c. It is in proof that this additior was well known. There is no evidence of the sale of but on! of these lots, before the death of Lisa. This description is applicable to the land sold; it was known by the description giva at the time of sale. The words, “ that were not sold,” >'r “ remaining unsold,” do not render the description uncertan to an extent that affects it. They express nothing more tbn what was implied. The registry act was in force at the timeof the sale. We may suppose the records would have shown wiat lots were sold. These words would have put all those attending the sale upon inquiry. If one had purchased without lo-tice of a prior sale, and recorded his deed, he would have prevailed against a prior unrecorded deed or agreement. So it i; not seen in what way the debtor in the execution could he affected or those attending the sale could be misled or deceive; by the description. There is no similarity between this cass and that of Evans v. Ashley.

In the one case, six small lots situate in a tract of 12-|- ar-pens, are sold by the description of a tract of land containing 12J arpens. In the other, the one undivided third part of the lots remaining unsold in an addition to a town is sold. The interest sold is advertised by this description. The addition is well known. There is no evidence of but one lot in the addition having been sold, and if they had been sold, the record would have shown it, and if it did not, a purchaser would not have been affected without notice. If none of the lots had been sold, the words, “ remaining unsold,” would not have affected the description with uncertainty ; and the fact that one or more of the lots were sold, does not affect the description, as the records furnished the means of ascertaining what were or were not sold.

It has long been the settled law, as declared here, that a sale in a lump, that is, of several tracts of land at a time, or of many lots together, did not make the sale a nullity, but was only a cause for avoiding it, in a direct proceeding instituted for that purpose.

The other judges concurring, the judgment will be affirmed.


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    Cable & others, Defendants in Error, vs. The St. Louis Marine Railway & Dock Co., Plaintiff in Error.
    1. A boat was lost by the negligence of a Dock Company. There was an insurance upon three-fourths of the boat, and the part insured was abandoned to the unuerwriters, and the abandonment accepted by them. Held, under tne practice act of 1849, a suit against the Dock Company for the entire value of the boat was properly brought in the name of the owners at the time of the loss.
    2. The provision in the new practice act that suits shall be brought in the name of the real party in interest, does not apply where part of a cause of action only is assigned. In such case, suit for the whole must be brought in the name of the original owner.

      Error to St. Louis Court of Common Pleas.

    This was an action by the owners of the steamboat James Hewitt, to recover damages for the sinking of said boat by the negligence of the defendant.

      At the trial, there was evidence tending to show that, at the time of the loss, there was an insurance upon three-fourths of the boat, and that immediately afterwards, and before the commencement of this suit, the interest insured was by the plaintiffs abandoned to and accepted by the underwriters.
    The defendant asked the court to instruct the jury that, in respect to the interest abandoned, the right of action was in the underwriters alone, and that they should have been joined as plaintiffs ; and that, in any event, the plaintiffs could not recover more than one-fourth of the value of the boat. These instructions were refused, and after a verdict and judgment for the plaintiffs for the value of the boat, the defendant appealed to this court.

      T. T. Gantt, for plaintiff in error.
    1. The abandonment operated as an assignment to the underwriters of all the interest of the plaintiffs in the subject insured. (2 Phillips on Ins. (3d ed. of 1858,) §1711, 1712, and cases there cited.') 2. It cannot be presumed that the plaintiffs are trustees for the underwriters, and besides, there is no allegation of such a trust in the petition.

      John A. Kasson, for defendants in error,
    insisted that the provision in the code of 1849 that suits shall be brought in the name of the real party in interest did not apply to a case like this, where the cause of action had become divided; that the legal title or claim to the damages was still in the plaintiffs, and a part of the equitable claim, and that therefore the whole action might be sustained in their names.
   Scott, Judge,

delivered the opinion of the court.

All other questions in this cause have been abandoned except that in relation to the right of the plaintiffs to maintain this action for the entire value of the boat.

There can be no doubt but that the plaintiffs would have been the proper parties to institute this action for the entire sum claimed, had it been brought under our former system of practice. Though there had been an abandonment of the subject insured, and that abandonment accepted by the underwriters, yet the action would have been properly brought for the full value of the boat in their names.

It remains, then, to be seen, whether, under the circumstances of this case, the action is not properly brought in the name of the present plaintiffs, notwithstanding the present practice act. It is not controverted, but is admitted, that a right of action for a portion of the damages arising from the injury to the subject insured, is in the plaintiffs, and that they have a right to recover the value of one-fourth part of the boat, which was lost through the alleged negligence of the defendant.

Now, is there any thing in the present practice act which affects or in any way impairs the rule of the common law against dividing a cause of action, or making two causes of action out of one contract or injury by a division of it. The endorsee of a bill of exchange is the legal owner of it, and regularly a suit upon such an instrument must be brought in his own name. But if the holder of a bill assign by way of endorsement one half of its amount, would not the action, notwithstanding the assignment, still have to be brought in the name of the holder ? By our law, the assignee of a bond is the legal owner of it, and suit thereon must be brought in his name. If the obligee of a bond assign one half of the sum of it, could the assignee, although the legal owner, maintain an action in his own name for his portion of the debt? In such a case, would not the suit necessarily be brought in the name of the obligee, who would recover the full amount due on the instrument ?

A cause of action arising ex maleficio, cannot be used as an illustration of this principle, because neither by the common law nor statute was it assignable, so as to enable an as-signee to maintain a suit for the damages in his own name.

We do not consider that the provision in the present practice act, which requires actions to be brought in the name of the real party in interest, affects this principle of the common law. Under the former practice, and even now, the legal owner of an instrument transferred by assignment must sue in his own name, yet we have seen that the legal owner of a part of a debt secured by a bond, could not maintain an action upon it. It could only be done when he was the assignee of the entire debt. So the statute requiring the real party in interest to sue, should be construed in reference to the principle of the common law above stated, and must be limited to those cases in which the real party in interest possesses the entire cause of action. The original owner of a cause of action cannot, by parting with a portion of his interest in it, give a right of action to his assignee, neither by the common law nor by any thing contained in the present act regulating practice in the courts of justice.

We do not wish to be understood as expressing any opinion as to the manner in which the suit should have been brought had the entire boat been insured by the owners, and they indemnified by their policy.

The other judges concurring, the judgment will be affirmed.


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    Halsall, Respondent, vs. Meier, Appellant.
    1. A recognizance for an appeal from a justice of the peace described the defendant as plaintiff, and the plaintiif as defendant. Held, this might be treated as a clerical error, the transcript accompanying the recognizance correctly describing the relation of the parties to the suit.

      ^Appeal from St. Louis Law Commissioner’s Court.

    Halsall brought an action against Meier before a justice of the peace and recovered judgment. Meier took an appeal to the law commissioner’s court, and entered into a recognizance. The recognizance was in the form prescribed by the statute, (R. C. 1845,) but Meier was named as plaintiff and Halsall as defendant in tbe action. Tbe law commissioner dismissed tbe appeal for tbe insufficiency of tbe recognizance, and Meier appealed to this court.

      C. B. Lord, for appellant,
    that the recognizance was sufficient, cited 1 Wend. 518, 3 Green, 462, 4 Blackf. 473, 496, 5 Watts & Serg. 363, 11 Ohio, 420, 3 Har. 8, 1 Dana, 145, R. C. 1845, p. 670, art. 8, § 17, 10 Barb. S. C. Rep. 376.

      M. L. Gray, for respondent,
    cited R. C. 1845, p. 668, § 4. 14 Mo. Rep. 529. 10 Mo. Rep. 287. 9 Mass. 492. 16 Mass. 447.
   Leonard, Judge,

delivered the opinion of the court.

We suppose there is no doubt but that this recognizance was taken in tbe case in which it went up to tbe law commissioner’s court, and that tbe parties supposed, until they were otherwise advised, that they were bound by it. The danger is that, in tbe natural desire every court feels to administer justice according to tbe very right of tbe case, disregarding mere forms and looking alone to tbe substance of things, we may overturn principles which, although of no practical value in tbe particular case, are tbe great safeguards of right.

Tbe statute requires tbe recognizance, in a case like tbe present, to be signed by the parties and attested by tbe justice, (R. C. 1845, tit. Justices’ Courts, art. 8, sec. 8,) and these are tbe only matters prescribed, other than what is necessarily implied, that it contain sufficient words to bind the parties for tbe performance of tbe things it is intended to secure, identifying, with reasonable certainty, the case in which it is given. The legislature have prescribed a form which, if followed, (although this is not imperatively required,) will always relieve the matter from doubt. This form, it is seen, identifies the case, by reference to the parties, not only by name, but also by their relation to it, as plaintiff and defendant; but yet we do not think the recognizance would be void if the character of the parties, as plaintiff and defendant, was entirely omitted; and if this description, here given, is shown by the transcript which the recognizance accompanied into the law commissioner’s court, to be a mistake, a mere clerical slip, why may we not reject it as such, unless this fair presumption is met by proof of another suit, corresponding in these particulars with the recognizance. We think we may do so, and that the purposes of justice will be promoted thereby, and no legal principle violated.

Let the judgment be reversed and the cause remanded.


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    Murdoch & Dickson, Respondents, vs. Finney, Appellant.
    1. The equity of a subsequent assignee of a chose in action, who first gives notice to the debtor, is superior to that of a prior assignee.
    2. As to what is a sufficient finding of the facts under the practice act of 1849.
    3. An amendment to a pleading at the trial to obviate the objection of a variance does not require an affidavit.
    4. It is no reason for excluding an account offered in evidence that it varies in some particulars from the one filed in the cause.

      Appeal from St. Louis Law Commissioner’s Court.

    Action for money had and received. From the whole record, the following appeared to be the facts :
    Lee & Martin had an account against the Central Fire Company, which they transferred to Brantner & Welbourn in payment of an indebtedness to them. Brantner & Welbourn subsequently made an assignment to the plaintiffs, for the benefit of their creditors, of all their property, including the account transferred to them by Lee & Martin. Subsequent to the transfer to Brantner & Welbourn, Lee & Martin transferred the account against the Fire Company to the defendant, Finney, who collected the money from Wetzell, the treasurer of the company. This suit was brought for the money thus collected. The trial was by the court without a jury. The finding of the court stated that when Finney collected the account from the Eire Compnny, be was aware that it belonged to tbe plaintiffs, and that there was some testimony tending to show that the treasurer of the Eire Company might have known the same fact when he paid the money to Einney ; but was silent as to whether the Eire Company had notice of the first assignment, before the second assignment was made and notice of it given.
    At the trial, the defendant objected to the admission of the account in evidence, because it varied in date and amount from the account set forth in the petition. The court thereupon permitted the plaintiff to amend his petition without oath, so as to make the date and amount of the account set forth correspond with that offered in evidence, to which the defendant excepted. Evidence of the statements of Wetzell when the account was presented to him for payment was admitted, although Wetzell himself was examined as a witness in the cause.
    Upon the facts found, the court below gave judgment for the plaintiffs.

      Barretts, for appellant.

      J. B. Goff, for respondent.
   Scott, Judge,

delivered the opinion of the court.

1. This case appears to turn on the law respecting the assignment of choses in action. The law on this subject seems to be well settled. As between the assignor and the assignee, the equitable right will pass without any notice to the debtor ; for the assignor is bound from the moment of the contract. But if the assignee means to go further and make his right attach upon the thing assigned, it is necessary to give notice to the debtor or trustee of the assignment. But if, after a chose in action is transferred by its owner, it is assigned a second time, and the last assignee first give notice to the debtor of his right, his equity will be superior to that of the first assignee who has neglected to give notice ; for, by such failure, the first as-signee has enabled the owner of the chose in action to commit a fraud by making another sale. The second purchaser, by enquiring of the debtor, might have learned whether the debt bad been transferred, or if notice of the transfer bad been given to tbe debtor, he, after such notice, would pay the debt to another at his peril. The precaution of making enquiry is always taken by a diligent purchaser, and if it is not taken, there is neglect, and no relief is extended to him who has been guilty of it. If both assignees give notice at the same time, or if there is no notice by either assignee, then the rule qui prior esl in tempore potior est in jure prevails, and the first assignment will be sustained. So that it is seen that notice to the debtor or trustee is necessary, in order to make a perfect and indefeasible assignment of a chose in action. (Dearle v. Hall, 8 Eng. Con. Chan. 266. Heath v. Powers, 9 Mo. Rep. 765.)

2. The finding of the court, in relation to this matter of notice, is evidently defective. Indeed, the facts in regard to it are not found at all, but it is stated that there was some testimony tending to show that the treasurer of the company might have known, at the time he paid the money to Finney, that the account in question was the property of Brantner & Welbourn, or their assignees. This is no such finding as is required by law. If courts will take the place of jurors and try the issues in a cause, they must, in the finding, state the facts found, and not the testimony, nor the tendency of it. With these, this court cannot deal. By the facts, are meant these material circumstances stated in the pleadings, and which constitute the cause of action or the ground of defence. These must be stated in the finding, and not the testimony tending to .‘prove them, nor circumstances from which a jury might infer them. In cases where the ultimate fact may be regarded as one rather of law than fact, as where a controversy turns on the question of adverse possession, fraud or a valuable consideration, and such like, it is not sufficient that the existence of these be stated in so many words, but the-facts which show that they exist must be stated; not the evidence, but the facts established by the evidence upon which the law pronounces, as a matter of law, that they do exist.

In the portion of the finding stated above, the inquiry does not seem to have been turned to the proper point. The inquiry should be, not whether there was notice of the prior assignment, at the time Einney received the money from the debtor, but whether his assignment had been obtained and perfected before notice; for, if such was the case, he would be entitled to the money, whether there was notice or not at the time the money was received.

8. Where an amendment of the pleadings is made at the trial, merely to obviate the objection of a variance, there can be no necessity for an affidavit to such amendment, if such affidavit is necessary in any case, where the effect of it is not to produce a continuance.

It was no objection to the account offered in evidence, that it varied in some particulars from that filed in the cause. A variance between accounts relating to the same matter, may be the ground of observation and subject of comment to the jury, but cannot be a reason for excluding one of them altogether. The variance may be explained, and its cause accounted for. A plaintiff would not be allowed to recover that for which he did not sue, and to substitute one cause of action for another ; but if, in stating his cause of action, he has committed a mistake, it may be obviated by amendment.

Evidence of the statements made by Wetzell to the witness was not admissible. Wetzell was a witness himself. The declarations of an agent relative to an act which, at the time, he is performing for his principal, are evidence against him.

The judgment is reversed, and the cause remanded.


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    Jones, Respondent, vs. Steamboat Morrisett, Appellant.

      1. In a suit against a boat begun before a justice, the account filed stated that the demand was for services as “fireman.” Held, this sufficiently showed that the demand was for services done on board the boat, and so a lien under the act.

      Appeal from, St. Louis Law Commissioner’s Court.

    Action against a steamboat begun before a justice of the peace. The account filed is set forth in the opinion of the court. The constable’s return to the warrant stated that the •writ was executed “by going on board the steamboat Morri-sett, and by seizing and attaching, as the property of said boat, the anchor, hawser and tackling of said boat.”

      Marshall, Burke and Glover, for appellant.

      J. B. Thompson, for respondent.

       Five other cases precisely similar were decided at the same time.

   Ryland, Judge,

delivered the opinion of the court.

The complaint and the account, with its particulars, filed in this case, is considered by this court as sufficient. It is not liable to the objection taken in the case of Luft v. The Steamboat Envoy, (19 Mo. Rep. 476.)

Here, the particulars show the work and labor done to have been done by him as a “fireman.” Now, in the common course of transactions of this character, an account against a steamboat for work and labor as a fireman, would necessarily imply that the work was done on board of the boat. There was, then, no necessity to state that such work was done “ on the boat” or “on board of the boat,” in so many words. It appears sufficiently certain that it was done on board.

In the case of Luft v. Envoy, and that was stretching the objection as far as we are inclined to go, to say the least of it, the account was for “twelve hours’ labor, at fifteen cents per hour,” it was objected to, because it did not appear to be for work and labor “ by a person employed on board the boat or vessel,” or for services performed on board the boat or vessel. The labor is charged too generally — not specific. The account did not charge the labor as done “by a fireman,” or “by a “ deck hand.”

In the case now before us, the steamer J. Morrisett is eharged as being indebted to Jones, the plaintiff, on account of a demand which accrued against said steamboat on account of the mate of said boat, for work and labor, within the last thirty days, and is, in all its particulars, as follows :

“ Steamboat J. Morrisett,
“To Charles Jones, Dr.
“ To work and labor done as a fireman, commencing on the 1st day of May, 1854, and ending on 15th day of May, 1854, at the rate of $40 per month, or $1 35 per day, $18 62.”

This account was stated to be the only demand which the., plaintiff had against the boat as a lien, and it was sworn to.

The plaintiff recovered a judgment before the justice, and the' defendant appealed to the law commissioner’s court. In the court of the law commissioner, the defendant moved to dismiss--the plaintiff’s suit, because the constable’s return was not good and sufficient, and because the demand in this ease is note, brought within the statute authorizing proceedings against the-boat. This motion was overruled, and the parties submitted the-case without a jury to the law commissioner, who found for the-plaintiff', and rendered judgment for $18 62 and costs.

The defendant afterwards moved for a new trial,, because the-court had improperly refused to continue the case. This motion was overruled. The defendant then moved in arrest of' judgment, which was likewise overruled, and the case is brought, here by appeal.

I have already,noticed the main objections. The constable’ll return is sufficient under the act of 1841. (Pamph. Acts-,. 1847, p. 11.) The court did not improperly exercise its discretion in refusing a continuance, and it properly overruled the; motion in arrest of judgment.

Upon the whole record, then, there appears no error sufficient to require this court to reverse the judgment below. It is therefore affirmed, the other judges concurring.


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    Williams, Respondent, vs. The Steamboat Morrisett, Appellant.
    1. In a suit against a boat begun before a justice, a statement in the account-filed that the demand is for services as “ deck hand” sufficiently shows that it is a lien.

      Appeal from St. Louis Law Commissioner’s Court.

    Marshall, Burke & Glover for appellant.

      J. B. Thompson, for respondent.
   Ryland, Judge.

This case is similar to the case of Jones vs. the same boat. The difference is, that the work charged in this case was done by plaintiff as a “ deck hand,” and not as a “fireman.” The same principles will govern this as that of Jones v. Steamboat Morrisett. That opinion is referred to. The judgment below is affirmed ; the other judges concurring.


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    Dunscomb, Plaintiff in Error, vs. Maddox, Defendant in Error.
    ,1. The provision in the act establishing the St. Louis Land Court, (Sess. Acts, 1853, p. 90,) that no judgment of a court in St. Louis county shall be ¡a lien upon real estate until an abstract is filed in the Land Court, does not repeal the provision in the revised code of 1845, that there shall be no priority as between judgments rendered at the same term of a court.

      Error to St. Louis Circuit Court.

      M. L. Gray, for plaintiff in error.

      Krum & Harding, Cline & Jamison, for defendant in (error.
   Leonard, Judge,

delivered the opinion of the court.

Five judgments were recovered by different parties against-tbe same common debtor in the St. Louis Circuit Court, at tbe same term, but upon different days, and afterwards entered upon the abstract of judgments required to be kept by tbe clerk of the St. Louis Land Court, tbe two first on tbe same day, and the three others on subsequent successive days. Tbe debt- or’s land in St. Louis county was sold upon execution out of tbe Circuit Court, and that court refusing to order the proceeds (there not being enough to pay all) to be applied to tbe two judgments first entered upon tbe abstract, to tbe exclusion of tbe others, tbe propriety of that decision is brought here for our determination.

This involves tbe proper construction of tbe 14th section of tbe act of tbe 23d of February, 1853, (Sess. Acts of 1852-3, p. 70,) establishing tbe St. Louis Land Court, taken in connection with tbe 2d and 3d sections of tbe revised code of 1845, concerning judgments and decrees. Tbe general law provides, by section 2, that “Judgments and decrees rendered by any court of record shall be a lien on the real estate of tbe person against whom they are rendered, situate in the county for which the court is held and, by section 3d, that “ Liens shall commence on tbe day of tbe rendition of tbe judgment, and shall continue for three years, subject to be revived as hereinafter provided ; but when two or more judgments or decrees are rendered at tbe same term, as between tbe parties entitled to such judgments or decrees, tbe lien shall commence on tbe last day of tbe term at which they are rendered. ”

The provision of the 14th section of the St. Louis Land Court, so far as it relates to the present matter, is, that “No judgment rendered by any court in St. Louis county, shall be a lien on real estate until an abstract of said judgment shall be entered in a book to be kept by the clerk of said court.”

It is insisted, in support of the present judgment, that, although generally judgments take effect as liens upon lands in St. Louis county only from the time they are entered upon the abstract of judgments, yet, when rendered by the same court, at the same term, they take effect without any priorities, as between themselves, pursuant to the Sd section of the general law, there being no such inconsistency between these provisions as to make one a repeal, by necessary implication, of the other. Certainly, the legislature have not manifested their intention upon this subject so clearly as to put it beyond doubt, yet, after having considered every thing that ought to influence our judgments in the matter, we have also come to that opinion.

It will be observed that the third section of the revised statute, which we have quoted, contains two provisions — one general, declaring when the lien shall commence, and how long it shall continue; and the other specially declaring at what time the lien shall be considered to have attached, in a question between judgments of the same court rendered at the same term. Certainly, the new law cannot be allowed to repeal, in reference to St. Louis county, the general provision contained in this section, and then stand as a substitute in its place ; for, if it does, there is nothing left in the general law, or contained in the supposed substitute, limiting St. Louis judgment liens to three years, or, at least, to three years from the time they were rendered, and we may safely assume that the legislature never intended to change the general law upon either of these points in this county. The new law may be construed as a general provision, to the effect that, in order to constitute a St. Louis judgment a lien upon land, it must be entered upon the abstract of judgments, and which would, of course, repeal by necessary implication, the general law, so far as it related to the time at which the lien should attach, and no further ; and this construction, which must be given, in order to preserve the manifest intention of the legislature in the other particular suggested, leaves the old law untouched in the point now under consideration. Under this view of the law, a judgment here attaches, as a lien upon land, at the time it is entered upon the abstract, and not before ; and the lien continues three years, not from the time of this entry, but from the date of the judgment ; and when the question is exclusively between judgments of the same court, rendered at the same term, which have been entered upon the abstract, there are no priorities as between themselves. It is admitted that there is no practical difficulty in the application of the principle to the present ease, but it is said, cases may be suggested in which such difficulty would exist. If the third judgment in the present case had been a judgment of the St. Louis Court of Common Pleas, rendered after the two first, but before either of the other two, and entered in the same order of time upon the abstract, it is asked, how shall the fund be distributed ? Shall it be given to the first two judgments, to the exclusion of the third, and then be divided rateably between all four circuit court judgments, or shall the first two judgments be considered as rendered on the last day of the term, and so postponed until the third judgment is satisfied ? The answer to all this is obvious. The question in the case put is between judgments of different courts, and therefore not within the special provision now under consideration, in reference to judgments of the same court, and which is only applicable when all the judgments are of the same court, and does not extend to a case in which any of them are of a different court.

It must also be remarked that the practical difficulty which it is thought would be encountered by preserving in force, in this county, the special provision in reference to the lien, as between judgments of the same court and term, exists now to the same extent in the practical working of the general law in every county in the state. A circuit court judgment is obtained, and then a transcript of a justice’s judgment is filed in the same court, and afterwards another judgment is recovered in the circuit court, and the land of the common debtor being sold under the eldest judgment, yields enough to pay off that lien, but not enough to satisfy the other two judgments, is a case that may frequently occur under the general law, and in which the same difficulty exists that is suggested in the case put by way of argument, and it must be dealt with, in the manner before suggested. The money that is left must be applied to the payment of the justice’s judgment, to the exclusion of the subsequent circuit court judgment.

Where there is no express repeal of the old law, but it is abrogated only by reason of its inconsistency with the new law, it is the duty of the court to restrain the repealing force of the new law accordingly ; and there being, as we think, no such inconsistency in the present provisions, it is our duty to allow them both to stand, and give effect to them accordingly.

The other judges concurring, the judgment is affirmed.


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    Meier, Defendant in Error, vs. Eichelberger, Plaintiff in Error.
    I. Under the act establishing the St. Louis Land Court, (Sess. Acts, 1853, p. 90,) an appeal from a justice of the peace, in a suit for a trespass on land, must be taken to that court, and not to the law commissioner’s court.

      Error to St. Louis Law Commissioner’s Court.

    Action before a justice of the peace. The complaint filed by the plaintiff stated that the defendant committed “ a trespass upon him, by letting various droves of cattle upon his meadows and hay stack.” There was a judgment for the plaintiff before the justice. An appeal was taken to the St. Louis law commissioner’s court, where the same was dismissed, and an appeal taken to this court.

      Dusenbury and Gardner, for plaintiff in error.

      C. B. Lord, for defendant in error.
   Leonard, Judge.

This suit was for a trespass upon the plaintiff’s land by letting various droves of cattle upon his meadows and hay stack, and not for a mere trespass upon personal property. It was an injury, therefore, exclusively cognizable in the St. Louis Land Court (Sess. Acts of 1852-8, p. 90, sec. 2, St. Louis Land Court Act,) and so the appeal lay in this case to that court, and not to the law commissioner’s court. (Same act, sec. 3.) Judgment affirmed.


text:
    Downing & others, Defendants in Error, vs. Bourlier, Plaintiff in Error.
    1. A finding of facts which does not cover all the matters put in issue hy the pleadings, is insufficient, and is a ground of reversal.

      Error to St. Louis Circuit Court.

    The case is sufficiently stated in the opinion of the court.

      J. L. Gillespie, for plaintiff in error.

      Cline & Jamison, for defendants in error.
   Ryland, Judge,

delivered the opinion of the court.

This action was upon a promissory note. The defendant in his answer says that the promissory note was delivered by the defendant to the plaintiffs in consideration of a sale made and delivery to be made by the plaintiffs to the defendant of a package of merchandise, consisting of certain articles of jewelry, which said package of merchandise, the said plaintiffs, though often requested, have refused and still do refuse to deliver to defendant. The answer also states that on the 5th day of October, 1854, the defendant made his certain promissory note, bearing date on the 10th of October, 1854, in which he promised two years after date to pay said plaintiffs twenty- eight hundred dollars and thirteen-hundredths of a dollar; and the defendant also on said 5th of October, 1854, drew his certain bill of exchange, commonly called a draft, bearing date the 10th of October, 1854, for twenty-six hundred and twenty-five dollars, payable to said plaintiffs, sixty days from date, which said note and bill of exchange were delivered to and are still held and owned by said plaintiffs, and which were received by said plaintiffs as satisfaction in full of all demands had by said plaintiffs against said defendant on the 5th of October, 1854. He files a copy of receipt, the original being on file in another cause, which receipt is as follows :

“ Beceived, St. Louis, October 5th, 1854, of Mr. P. Bour-lier, one draft on A. Quenelle, Esq., at sixty days, dated October 10, 1854, for $2,625, and one note at two years, same date, for $2,800 18, the same, if accepted and endorsed by A. Quenelle, when paid, to cover all indebtedness of said Bour-lier. If said A. Quenelle does not accept or endorse said note and draft, the same are to be returned to Mr. Bourlier. Mr. Bourlier does not claim the right to draw on Mr. Quenelle, but merely hopes that he may be induced to assist him in this way.
“ G-. B. Doranra & Co.”

The parties went to trial without a jury, -and the court rendered judgment for the plaintiff's upon the following finding, viz: The court finds that defendant, upon consideration good and valuable, executed the promissory note described and set forth in plaintiff’s petition.” Upon this finding, the court rendered the judgment for plaintiffs.

The defendant moved to set aside the judgment, because the court refused to grant him a continuance on account of the absence of a material witness ; motion overruled ; case brought here by writ of error.

1. The only question in this case is, whether the finding is sufficient or not; and if it be not sufficient, whether the defendant can, upon this record, make this a ground of reversal, not having taken the objection in any manner in the court below.

This finding does not touch the issue on the note and bill of exchange. It is not sufficient to support the judgment given by the court below. On the record in this case, material matters were put in issue, which, if found, might have entitled the defendant to the judgment. It was the duty of the court to pass upon these matters, and find them in some way, either for or against tbe defendant; it will not do to pass them over in silence.

Now, wherever we see from the finding that certain facts exist, and the existence of other facts can be presumed legally, this court will presume the existence of such facts, when necessary to support a judgment. The defect in the finding, or the failure to find material matters in issue, necessary to support the judgment given below, may be assigned for error here, although the exception has p.ot been taken below.

This court will presume that certain facts do exist, when their existence may be lawfully so presumed from the facts found by the court below, in order to support the judgment given below ; that is, we do not consider the finding of the court to be subject to the same strictness and rules which have been applied to special verdicts. But when the finding below will not support the judgment, and sufficient facts are not found to raise the presumption that other facts exist by which the judgment can be supported, we must reverse — more especially, when, facts are averred to exist by the pleadings which are entirely overlooked in the finding, and which must materially affect the rights of the parties.

The judgment below is reversed, and the cause remanded for further trial; the other judges concurring.


author: Ryland, Judge, Scott, Judge.

text:
    Cooper & others, Respondents, vs. Garesche & others, Appellants.
    1. In a partition suit, where the shares of some of the parties are set off, and the residue of the land is reported not susceptible of division, and sold, the costs of all the proceedings, including the costs of sale, must be equally taxed against all the parties. (Scott, J., dissenting.)

      •Appeal from St. Louis Circuit Court.

    This was a suit for partition. When the petition was filed, Sarah Cooper, one of the plaintiffs, was entitled to one-eighth of tbe land in fee, and to a life estate in all the residue, and each of the other parties was entitled to one-eighth, subject to her life estate. During the progress of the suit, some of the parties acquired the outstanding life estate to the extent of their shares. Commissioners were appointed to make partition, who set off the shares of those in whom the life estate and estate in remainder had become united, and reported that the residue of the land was not susceptible of division, and recommended that it be sold. A sale was ordered and made, and afterwards, the plaintiffs moved the court to tax all the costs, including those of the sale, equally, against all the parties to the suit, in proportion to their respective interests. The motion was sustained, and the parties whose shares had been set off to them excepted, and appealed to this court.

      A. P. & P. B. Garesche, for appellants,
    insisted that after the shares of some of the parties had been set off to them, the controversy was at an end as to them, and that the court erred in taxing against them any portion of the costs which accrued subsequently. They referred to sections 29, 30, 38 and 40 of the act concerning partition, (R. C. 1845.)

      Samuel Reber, for respondent,
    referred to the act of January 25, 1847. (Sess. Acts, 1847, p. 106.)
   Ryland, Judge,

delivered the opinion of the court.

The question in this case has reference only to the costs of the proceedings below. It was a proceeding for partition of real estate among its several owners, eight in number. The real estate was partitioned in part, and several shares allotted to several of the owners. The balance was strangely enough thought not susceptible of division, and so reported. The Circuit Court approved the report, and ordered sale.

Afterwards, the Circuit Court, by its judgment, ordered the costs of the proceedings, including the costs of sale, to be paid by all the parties interested in the partition, in proportion to their respective interests. The persons to whom shares had been allotted and partitioned off complain of this judgment, and insist that, as they each one had his share set apart to him, without sale, they ought not to be taxed with costs of the balance of the proceedings, embracing the sale ; but that these costs should be paid by the parties whose shares, not being set apart and allotted, had to be sold under the proceedings for partition.

In the opinion of a majority of this court, the Circuit Court decided properly. The amendatory act of 1847, regulating suits for partition, declares, in section 2, “In all cases of partition arising under the above act, (that is, the act of 1845,) the necessary expense attending such partition, together with a reasonable attorney’s fee, to be assessed by the judge of the court before whom partition is had, shall be equally taxed against all persons interested in such partition, in proportion to their respective interests therein.” (Sess. Acts of 1847, p. 106.)

The 29th section of act concerning partition, (R. C. 1845,) declares that, “ Whenever the commissioners report that they have set off a part only of the shares, according to the division ordered, and such report is confirmed, only that part of the land which is not set off to any party shall be sold, and the proceeds apportioned among the parties to whom no land has been allotted, and the costs of the proceedings shall be paid by the parties in proportion to their respective shares in the land which is the subject of the proceedings.”

Under these sections, we think the costs must be borne by all the persons interested in the land, which is the subject of the proceedings ; not those only whose shares have not been allotted, but whose interest was supposed susceptible of division by means of a sale only. Sale in such cases must be considered as one of the modes of partition, and it would be very hard to let most of the costs of the proceedings be paid by those whose shares were not set off, but had to be sold. It is more consonant with our notion of right and justice that the burden of partition be equally upon all interested.

Few subjects of legal proceedings have ever caused more regret in the minds of the judge than those arising under our partition laws. The rights of infants have, under these partition proceedings, generally given way, and, in some instances, been entirely lost sight of. This process has been resorted to as a way to force the lands belonging, in part, to infants and minors, into sale, and often happens to the great injury of these persons ; yet, there is no adequate remedy. Whenever the commissioners report that the lands cannot be divided, then the party who really wanted the sale at first insists, urgently, for the order of sale ; the court makes it, and a consequent sacrifice of infants’ rights and property succeeds.

However, this subject is more properly one of legislative correction. I barely mention it, that the courts may endeavor, as far as practicable, to protect the infant’s property from sale and loss, and, unless when compelled by thorough conviction of the deliberate judgment of the commissioners, that the property cannot be divided without sale, never to grant such order.

The judgment below is affirmed.

Scott, Judge.

In my opinion, the word “proceedings,” in the 29th section of the act concerning partition, relates to the sale which is ordered after a confirmation of the report of the commissioners, and does not refer to the entire procedure in partition. The 22d section of the act concerning costs had already made provision for the general costs in suits for partition, and it was not necessary again to repeat it. The same remark is applicable to the 40th section of the same act, and that, if any thing, shows more clearly that the sale was the only thing contemplated by the word “ proceedings.” As those whose lands are set off and not sold are usually minors, who, in all probability, will have to make a partition by a sale after-wards, it would not be just to tax them with the costs of two suits.

The act amendatory of the act concerning partition, approved January 25, 1847, does not, in my opinion, affect this question. That act seems to have had its origin in a want of the knowledge of the existence of the section in the act concerning costs in partition.


text:
    Weaver, Respondent, vs. Beard & Brother, Appellants.
    1. The assignee of a note not negotiable cannot sue a remote assignor in an action at law. Under the new practice, Ms petition must set forth the same facts that would formerly have been necessary in a bill in equity.

      Jippeal from St. Louis Court of Common Pleas.

    This was an action to recover the amount of a note, which the petition stated was executed by Kilburn & Massoa- pasable to the defendants or order, and by defendants/ delivered to Hastings & Mower, who endorsed ang same to the plaintiff. It was further stated in when the note became due, Kilburn & Massonijwere insol so that a suit against them would have been uij note sued upon was not set out in the record. ?B^ecause tried by the court without a jury, and it was found as al the note was endorsed first by defendants and then by Hastings & Mower, at the same time, for the accommodation of Kilburn & Masson, who thereupon took the note and delivered it to plaintiff in payment of another note held by him, upon which also the defendants and Hastings & Mower were parties for the accommodation of Kilburn & Masson. It was further found that the plaintiff had agreed with Hastings & Mower not to sue them, in consideration of which said H. & M. had executed to plaintiff four notes as collateral, two of which had been paid by them, and that the plaintiff had agreed to refund the amount so paid in case he recovered of the defendants.
    There was a judgment for the plaintiff for the amount of the note, and the defendants appealed.

      T. T. Gantt, for appellants.

      Blackburn & McLean, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The nature of the instrument sued upon has been misconceived. It is not a bill of exchange, nor subject to the law governing such paper. It is what is called an assignable note under our statute concerning bonds and notes. The note not being negotiable, an action, according to the principles of the common law, would not lie upon it, there being no consideration, an unsealed note not importing one. Our statute has given an action on such instruments to the payee against the maker, and also to the assignee against his immediate assignor, in the event the note is not paid by the maker after he has been pursued with due diligence. This action, as brought, could only be sustained by the plaintiff against his immediate assignors, Hastings & Mower. The only way in which the last assignee can reach a remote assignor is by a proceeding in the nature of a bill in equity, in which the facts would be set forth showing the grounds on which such assignor would be liable to a remote assignee. If Beard & Bro. had assigned the note to Hastings & Mower, for value, and Hastings & Mower, for value, had assigned it to the plaintiff, nothing more appearing, the plaintiff would have had an action at law against his immediate assignors, Hastings & Mower. He could not sue a remote assignor, because there would be no privity of contract between them. He could only reach such assignor by a bill in equity, in which, these facts being shownj he would be entitled to recover.

The distinction between actions is now abolished, and there is no action at law, no bill in equity. But we have over and over again said that a party who had a mere equity could not assert it in a petition in which he claims by a legal title. Whether an equity is asserted in a petition for relief or as a de-fence to a legal demand, the party cannot treat it in his pleading as a legal title, but must state the facts out of which his equity arises, as it would have been stated under the former mode of practice. He must show the facts and circumstances which constitute his equitable title to relief. He cannot, on a mere legal title, asserted by way of petition or answer, set up an equitable title or defence. Under the present practice act, the equity must be stated in the pleadings in such way as to show that its existence is recognized by law.

We will not undertake to determine from the record, as it now stands, whether the present plaintiff has any equity against the defendants. The principle on which this cause was tried below, that the parties were liable in the order in which they stood on the paper, beginning with the maker first, as in the case of mercantile negotiable paper, is not applicable. There is no legal liability on the note sued on between any other parties than the last assignee and his immediate assignors and the makers. The recourse of the last assignee against remote assignors, can only be reached by a proceeding in the nature of a bill in equity, setting forth the equitable circumstances which render such assignors liable to the last assignee. It seems that the defendants and Hastings & Mower were mere sureties of Kilburn & Masson. From the form of the security given, as set forth in the petition, Hastings & Mower are responsible at law immediately to the plaintiff. What equity there would be in taking the whole burden from those who are immediately liable, and placing it upon the other sureties, must be shown in a petition hereafter to be filed. ( Smith v. Harley, 8 Mo. Rep. 559.) With the concurrence of the other judges, the judgment will be reversed.


text:
    Sutter, Appellant, vs. Streit, Respondent.
    1. A till of exceptions cannot be filed after the term at which the cause was tried, unless by consent.
    2. The date when an account sued upon accrued is not a material averment in a petition, and is not admitted by a failure to deny it in the answer.
    3. A finding must state facts, not the evidence.
    4. A finding of facts is regarded as part of the record proper, and no hill of exceptions is necessary to preserve it.

      Appeal from St. Louis Law Commissioner’s Court.

    This was an action brought by' Sutter to recover a balance of one hundred and fifty dollars, alleged to be due to him from Streit, on account of hauling staves.
    The answer admitted the hauling, but alleged a settlement and satisfaction on the 18th of January, 1858.
    When the case was called for trial, the plaintiff, by consent, filed a supplemental petition, merely stating, in addition to the allegations in the original, that the account sued upon accrued between the 20th of April and last of May, 1853, which was subsequent to the date of the settlement set up in the answer.
    Upon this state of the pleadings, without any additional or amended answer, the case was tried by the court without a jury. The finding of facts states: " The plaintiff was introduced as a witness, sworn and testified. His testimony to the matter of indebtedness and the settlement was by no means satisfactory to the court. Upon an inspection of the pleadings, the court finds there is no date in the original petition of the time when the hauling mentioned was done by the plaintiff for the defendant. The defendant, by his answer, admits the indebtedness as charged in the original petition, and sets up payment and proves it; but the supplemental petition alleges a time subsequent to the 13th January, 1853, (the time of the alleged settlement,) as the time when the indebtedness accrued, which is not denied by the defendant. On this state of the case, the court is of opinion that the plaintiff is entitled to recover the amount of his claim.”
    There was a bill of exceptions containing the evidence, which was presented to the court below on the last day of the term, but not signed until the next day, when it was filed as of the day previous.

      Hart & Jecko, for appellant.

      S. H. Gardner, for respondent.
   Scott, Judge,

delivered the opinion of the court.

1. Objections being made to the bill of exceptions, it will not be noticed, as it was not filed within time, it having been signed after the term at which the cause was tried, and no consent of record appearing. The case, then, will stand upon the record proper.

2. Although there was no date to the account filed with the plaintiff’s petition, it was competent for him to show, by evidence, that in point of time it was contracted subsequently to the period of the settlement stated in the defendant’s answer. There was no necessity for an amended petition to do this, and the amendment filed did not vary the plaintiff’s case as stated in the original petition. On the other hand, it was competent-for the defendant to show, by proof, that the items charged in the plaintiff’s account were included in the settlement set up in. his answer, which was sufficiently comprehensive for that purpose, although the time of the settlement, as stated, was prior to the date of the account.

3. This cause was tried by the court sitting as a jury, and the' law requires, in such cases, that a statement of the facts (not the evidence, but the facts the evidence conduces to prove) on which the judgment is founded, should be filed by the court trying the issues. This statement is the warrant for the judgment, and, upon an examination, it must appear that the judgment is sustained by it. The finding filed in this cause cannot be regarded as a compliance with the law. The only fact stated in the finding in support of the judgment is, “ that his testimony, (meaning the plaintiff’s, who was sworn,) as to the matter of the indebtedness and the settlement, is by no means, satisfactory.” None of the facts established by the evidence are set out. On this alone is the judgment founded, if we except what the court erroneously supposed was an admission by the defendant of the plaintiff’s account by his failure to answer, an amended petition, which did not vary,-the..’plaintiff’s casej-in point of law, and which was fully met by the answer first filed,. as bas been before stated. If tbe plaintiff’s cause of action was unanswered, then there was no issue for the court to try. Why was not the default, for want of an answer noted, and the damages assessed ? The record shows that the defendant must have been surprised, as he was permitted on the pleadings to go into trial, supposing the fact in controversy was in issue, and was afterwards told that the plaintiff’s cause of action was admitted by the state of the pleadings.

4. Whenever the record proper in a cause is brought to this court by appeal or writ of error, this court will look into it, to see that the judgment rendered is warranted by law. Under the present practice, the statement of the facts found by the court, and required to be filed in the cause, is regarded as a part of the record proper, and no bill of exceptions is required to preserve it.

We are of the opinion that the record discloses a state of facts which requires the reversal of the judgment. The parties now fully understand each other, and their pleadings should be so amended as to present, beyond all cavil, the only fact in dispute between them, whether the items in the last account were included in any settlement between them.

The judgment is reversed, and the cause remanded ; the other judges concurring.


text:
    State, to use of Garrett, Plaintiff in Error, vs. Farmer, Defendant in Error.
    1. Under the first section of the amendatory act of 1847, concerning executions, every head of a family may hold properly to the amount of $150, ex,empt from execution, whether he owns any of the property mentioned in 'the first and second subdivisions of the eleventh section of the act of 1845 or not.
    s2. The securities in a constable’s bond are liable for his trespass in seizing property exempt from execution. (State v. Moore, 19 Mo. Rep. affirmed.)

      Error to St. Louis Court of Common Pleas.

    The case is stated in the opinion of the court.

      Delafield & Kribben, for plaintiff in error.
   Ryland, Judge,

delivered the opinion of the court.

This was an action by the State, to the use of Garrett, against Farmer and others, his securities, on his bond as constable of St. Ferdinand township, in St. Louis county. The petition alleges that Garrett was the head of a family, he having a wife and children ; that he was the owner of about twelve acres of corn in the field, and about one acre of potatoes in the ground, and some small quantity of furniture ; that the said Farmer, as constable, levied an attachment on this corn and potatoes, and sold the same for about sixty dollars : that the said Farmer did not apprise the petitioner, Garrett, of his right to select this property as the head of a family ; that Garrett demanded of Farmer the appraisement of the property, and claimed it as being exempted from execution.

The petition is immoderately long, and requires some attention to its verboseness, before we can make out that there is a cause of action set out in it at all; but it is our opinion that there is substantially a cause of action set out.

The defendants demur to the petition, and the eourt sustains the demurrer. The plaintiff brings -the case here by writ of error.

1. In looking over the whole record carefully, we find that the case involves the construction of the act of our legislature passed in 1846-7, amendatory of the act of 1845, concerning executions. This act of 1847, section 1st, declares that Each head of a family, at his election, in lieu of the property mentioned in the first and second subdivisions of the eleventh section of an act entitled ' an act to regulate executions,’ approved March 26th, 1845, may select and hold exempt from execution any other property, real, personal or mixed, not exceeding in value the amount of one hundred and fifty dollars.”

Sec. 2. It shall be the duty of the officer to apprise such person of his right to make such selection, and the same proceedings as to the selection, appraisement and sale of such property shall be had, as are provided with reference to- the selection, appraisement and sale of working animals in the 12th and 18th sections of the act of 1845.”

The 11th section of the act of 1845, with its two subdivisions mentioned, to-wit, first and second, is as follows :

" Sec. 11. The following property, when owned by the head of a family, shall be exempt from levy and sale under any execution : First. Ten head of choice hogs, ten head of choice sheep, two cows and calves, one plough, one axe, one hoe, and one set of plough gears. Second. Working animals of the value of sixty-five dollars.”

Now, the act of 1847 is to be construed as making an additional exemption, not only in favor of those persons, heads of families, who may own the hogs, sheep and working animals mentioned in the 1st and 2d subdivisions of the 11th section of the act of 1845, who may desire to select other property, either personal, real or mixed, in lieu of that mentioned in these two subdivisions; but also in favor of those persons, heads of families, who have not such property as is mentioned in these subdivisions, but may have other property, real, personal or mixed. The class of persons to be benefitted was increased so as to embrace others than those only who were cultivating the soil. The heads of families, who had no hogs, no sheep, no plough, no working animals, were supposed to be under as much natural and moral obligation to provide for their household, as the agricultural portion of the community. The words “ in lieu,” therefore, do not confine the exemption to persons having the property named in the 1st and 2d subdivisions of section 11, of act of 1845. If a head of a family has such property as well as other kinds, he may select of the other kinds in lieu of the property named ; but a man, the head of a family, although he has not such property, and has other kinds, may select out o£ wbat kind he has, so much as the law allows, and it shall be exempt from sale, &c.

The first section of the act of 1847 must be considered as a new class, following the second subdivision of section eleven of act of 1845, embracing heads of families, who have not the kinds mentioned in these subdivisions, but have real or mixed or other personal property; and in 1853, even wages to a certain amount were exempted from garnishment or attachment.

The duty of the courts requires them to give liberal interpretation to all such acts of legislation. They tend to increase the happiness of the poor — unfortunately, too great a part of every community ; to render comfortable the feebler and weaker portion of our fellow-beings, who are less able to provide for themselves, and less able to do without such provision — our wives and children.

2. The creditors should not complain ; they have no right to complain ; they know such to be the law when they give the credit, and often times the credit given, instead of a kindness and favor, has the very opposite effect.

The court below erred in sustaining the demurrer to the petition. Its judgment is reversed, and the cause remanded. The securities are liable for such acts of the principal. See case of State, to use of Russell and wife, v. Moore, (19 Mo. Rep. 369.) The other judges concur.