text:
    Boggs & Kennard, Respondents, v. Lynch and others, Appellants.
    1. Where in a suit against a keeper of a iivery stable to recover damages for injuries sustained in consequence of the negligent driving of a carriage of defendant by one of his servants, testimony was oifered on the part of defendant to show that the general character of the driver was that of a prudent and careful driver; held, that such testimony was properly excluded.
    2. On a motion for a new trial on the ground of .newly discovered evidence, the affidavit of the party to the suit will not itself suffice; the affidavit of the new witness must be produced or its absence accounted for.

      Appeal from Si. Louis Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Hill, Grover & Hill, for appellants.

      I. Z. Smith, for respondents,
    cited 1 Tyler, 443 ; Cooke, 292; 3 A. K. Marsh. 104; 2 Nott & McC. 563 ; 2 Bay, 268 ; 4 Blackf. 307; 1 Green, 177 ; Grab, on New Trials, 467 ; 20 Mo. 425 ; 1 Caines, 24 ; 23 Yerm. 244.
   Ryland, Judge,

delivered the opinion of the court.

This suit was brought by plaintiffs to recover damages for the alleged trespass of a servant in the employ of defendants. The petition alleges that plaintiffs, being the owners of a box of looking-glasses, had employed a carman to transport them from the levee, in the city of St. Louis, to their store on Fourth street; that while they were in the act of unloading the box and had it partly out of the car, a negro servant, then in the employment and under the control and direction of defendants, and at the time engaged in driving á carriage and horses of defendants, carelessly and negligently drove the said carriage against the horses attached to the car in which was plaintiffs’ glass, and thereby causing the horses attached to the car to start and the glass to be broken.

The answer admits that the servant was in the employment of defendants, but avers that he was under the direction of one Sublette, who had hired the horses, carriage and driver of defendants, and had direction of them at the time of the alleged accident.

At the trial, it appeared by the testimony of the plaintiffs’ witnesses, that the horses of defendants came into collision with the horses and car in which the box of glasses was, causing the horses of the car to start, and the box of glasses to fall, and thereby become broken and the glasses destroyed. The value of the glasses was proved. The defendant then called the plaintiff (Kennard), whose testimony corroborated that of his own witness, the carman.

The court instructed the jury that the plaintiffs could not recover if the servant wilfully did the wrong. The court also excluded the testimony offered by defendants, tending to show that the general character of the driver of defendants’ carriage was that of a prudent, careful driver. The jury found their verdict for plaintiff, and judgment was rendered thereon.

The defendants moved for a new trial on account of the rejection of the evidence as to the driver’s character, and on the ground of newly discovered evidence — a witness by whom he could prove that there was no collision, but that the carman’s horses took fright themselves, when defendants’ carriage started. But there was no affidavit of the newly discovered witness himself, accompanying the application for new trial on the defendants’ affidavit. This motion for new trial was overruled, and the defendants bring the case here by appeal.

The court below very properly rejected the evidence of the general character of the driver, as to his prudence and carefulness. This character was not brought in controversy ; it was wholly immaterial to the issue ; the most careful and prudent character would not justify the act complained of, and without proof of the act, the most inattentive and careless character would not warrant the jury in finding the act done. The driver’s character had nothing to do with the matter in controversy ; there is nothing, therefore, in this point. There is equally as little in the point about being surprised by the testimony of Kennard. He had made affidavit to the facts set forth in his petition ; and how afterwards, in giving his testimony, substantially stating the same matters, the defendants could be surprised is not easily perceived.

The third point also is against the defendants. Under the circumstances in evidence in this case, it is obvious that the newly discovered witness could be received in no other light than in giving cumulative evidence ;■ the facts stated by defendant as those to which he will testify are on the same subject already passed on by the jury — the collision — the evidence on the plaintiffs’ part is, that there was a collision ; and by the defendants, that, from the tracks of the horses and carriage and car, there was probably no collision. But there is still another fatal objection to the motion for a new trial; there is no affidavit of the newly discovered witness himself, detailing what he will testify to ; and without this, the court will not grant a new trial on newly discovered evidence alone ; the affidavit of the party interested will not suffice itself; the affidavit of the new witness must be produced or its absence accounted for. (B Graham & Waterman on New Trials, 1065.) A new trial will not be granted on account of newly discovered evidence, if the evidence is only material to impeach or contradict witnesses sworn on the former trial, nor where the evidence is merely cumulative. (Fleming v. Hollingsback and Sweet, executors of Hollingsback, 7 Barb. S. C. R. 276-2; Denio, 104; 10 Wend. 274 ; 1 Tyler, 441; 4 Blackf. 308 ; 20 Mo. 425; Wells v. Sanger, 21 Mo. 354.)

The other judges concurring,

the judgment below must be affirmed.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    Charless, Respondent, v. Rankin, Appellant.
    1. Although every proprietor of laud has a right to the support of the soil of an adjacent lot, as a natural servitude or easement, yet this servitude does not impose upon the adjoining proprietor the obligation of furnishing an increased support where lateral pressure is increased by the erection of buildings, unless such a right of servitude has been conferred by grant or the lapse of time.
    4. Where excavations are made upon one of two contiguous lots, the proprietor making the same will be responsible for all damage caused to buildings or other property upon the adjoining lot by reason of such excavation having been negligently made.
    3. It is however erroneous to rule that the proprietor having the excavating done is bound to use such care and caution as a prudent man, experienced in such work, would have exercised, if he had himself been the owner of the injured building. Such a ruling tends to mislead, as one who is proprietor of both the contiguous lots might very prudently subject himself to expense and inconvenience for the protection of his building, that could not justly be imposed upon one making excavations upon an adjoining lot belonging to him.

      4. The excavator can not set up as a defence that he used such care as his builder and superintendent, a skillful and careful person, deemed necessary. The decisive question is, whether there was actual negligence in making the excavation.

      Jlppeal from St. Louis Circuit Court.

    This was an action to recover damages for injuries alleged by plaintiff, Joseph Charless, in his petition to have been sustained by him in consequence of the “negligent, unskillful and improper manner” in which defendant, David Rankin, made certain excavations upon a lot adjoining that of plaintiff, which, by undermining the foundations of plaintiff’s building, caused the walls thereof to fall.
    The defence set up was substantially a denial of the negligence alleged in the petition.
    It is deemed wholly unnecessary to set forth the evidence bearing upon the point at issue, as the questions of law discussed and decided, can be fully understood from the instructions given and refused by the court below.
    On motion of the plaintiff, the court gave the following instructions to the jury, to the giving of which the defendant excepted : “ If the jury believe from the evidence that the digging for the foundation of defendant’s building was performed in a reckless, negligent, or improper manner, and that by reason thereof plaintiff’s house was thrown down, then plaintiff is entitled to recover such damage as he has sustained by the throwing down of his house. 2. If the jury believe from the evidence, that the fall of plaintiff’s building might have been prevented by the exercise of reasonable care and skill on the part of those who were digging defendant’s cellar, and that, owing to their failure to exercise such care and skill, damage resulted to plaintiff’s building, then plaintiff is entitled to recover in this action such an amount of damages as he may prove he has sustained by the fall of his building. 3. In excavating by the side of another’s building, it is the duty of the person having the excavating done to use-such care and caution, to prevent injury to such building, as a sensible and prudent man, experienced in such work, would exercise, if he were the owner of the building ; and the omission of such care and caution is culpable negligence, and renders the person having the excavating done liable for all the damages resulting therefrom. 6. The measure of damages in this case is the amount of money required to rebuild plaintiff’s house as it was before the fall, and the value of the house thrown down to plaintiff during the time necessarily taken to rebuild it, with the interest on those amounts from the time when the house was completed, after its fall, to the present time.”
    And, on the prayer of the defendant, the court gave the following instructions to the jury: “2. In order to find for the plaintiff, the jury must find, not only that the falling of plaintiff’s wall was occasioned by the digging of defendant’s cellar, but also that such digging was done in a negligent or unskillful manner, which negligence or unskilifulness caused the plaintiff’s wall to fall down. 3. If the jury believe from the evidence, that but for the rain which fell the night preceding the fall of plaintiff’s wall, the said wall would not have fallen down, they ought to find for the defendant, if defendant omitted no proper precaution to guard against the rain ; or, if the jury find that the plaintiff’s wall, either because it was built upon an insufficient foundation, or of defective materials, or of insufficient thickness, or in a negligent or unskillful manner, and but for such defect or defects in construction, or materials, whould not have fallen, they ought, in either such event, to find for the defendant.”
    The defendant then asked the following instructions, which the court refused to give, and the defendant excepted : “ 1. If the jury find that the defendant, in excavating his cellar, dug a proper depth, and entirely on his own land, the plaintiff can not recover. 4. If the jury find from the evidence, that defendant had employed a superintendent and architect to oversee and control and manage the erection of his building, and to erect the same, which architect and superintendent was skillful, experienced, careful, and competent to the purpose, and that all the care and precaution that said architect and superintendent judged sufficient to protect plaintiff’s wall was used for that purpose, they ought to find for the defendant.”

      T. Polk, for appellant.
    1. If the defendant’s excavation would not have caused the land of the plaintiff, on which his house stood, to fall in if it had no building upon it, but had remained in its natural state, the plaintiff was not entitled to recover. (Thurston v. Hancock, 12 Mass. 220; 9 Barn. & Cress. 725 ; Wyatt v. Harison, 3 Barn. & Adol. 871; Lósala v. Holbrook, 4 Paige’s Ch. R. 173; Hyde v. Thornburgh, 2 Car. & Kir. 251.) 2. Further, if the defendant (Rankin) dug exclusively upon his own soil, and in nowise encroached upon the plaintiff’s premises, the plaintiff had no right to recover against him. (2 Rolle’s Abr. 564-5 ; 1 Com. Dig. action on the case for nuisance, 420.) 3. The fourth instruction prayed by the defendant, and which the Circuit Court refused to give, does assert that the principal is not liable for the negligence of his servants and agents, as the court below seemed to understand it, but that the facts stated in the instruction preclude the possibility of any negligence or unskillfulness on his part, and make a case of care and caution that put him beyond the possibility of a recovery in this action. ( See case of Hart v. City of Philadelphia.) In an action for malicious arrest, or malicious prosecution even, it is a good defence to the action that the defendant followed the advice of competent counsel, asked and given in good faith, upon a full statement of the facts. (Blunt v. Little, 3 Mason, 102.)

      Strong and Drake, for respondent.
    1. The right of an owner of land to the enjoyment thereof is qualified by the rights of others. The maxim of the law is, “ sic títere tuo, ut alienum non IsedasP (Sedg. on Dam. 138 ; Hays v. Cohoes Co. 2 Comst. 159, 163.) 2. If plaintiff’s building was thrown down by the negligent or unskillful manner in which defendant’s servants dug his cellar, or by the omission on their part of reasonable and proper care and skill, in order to prevent the injury, then plaintiff is entitled to recover. (2 Stephens’ Nisi Prius, 1011, 1012; 3 Kent’s Com. 437 and note b. ; Vaughn v. Menlove, 3 Bingh. N. 568 ; Trown v. Chadwick, id. 334, 353-4; Jones v. Bird, 5 Barn. & Aid. 837, 848 ; Tuberville v. Stamp, 1 Selk. 13 ; Roberts v. Read, 16 East, 215; Boughton v. Carter, 18 J. R. 405 ; Dodd v. Holme and others, 3 Neville & Manning, 739; 1 Adolph. & Ellis, 493 ; Clare v. Eoote, 8 J. R. 421; Pantan v. Holland, 17 J. R. 92, at p. 100, 101.) 3. A person obstructing a public way, or using a privilege, will be held liable for all the damage resulting from his conduct, unless he use more than ordinary care to prevent injury. (Nelson v. Grodfrey, 12 111. 20 ; Clarke v. Lake, Scam. 2 111. 219, p. 231.) While every man has the reasonable and proper use of his own property, he can not be, and ought not to be exempt from liability for damages resulting from the negligent, unskillful or improper use of it. So long as society exists, the rights of individuals must be affected, modified and abridged by the rights of others. The defendant had no better right to the use of his ground than plaintiff had to his. And the defendant, in the enjoyment of his rights, was bound to exercise reasonable care and skill to prevent injury to the rights of plaintiff. Every man may well be held responsible for the consequences of his negligence and want of reasonable skill in the performance of what he undertakes. But what is reasonable care and skill ? The care and skill exercised by a prudent man, acquainted with the business he is performing, is, perhaps, the only standard, as it certainly is the best for determining whether there has been negligence in a given case. This is the rule laid down by the third .instruction given.
   Leonard, Judge,

delivered the opinion of the court.

The right to support from the adjoining soil may be claimed either for the land in its natural state, or for it subjected to an artificial pressure by means of building or otherwise.’ The right in the former ease would seem to he a natural servitude or easement belonging to contiguous lots, and accordingly it was recognized and protected in the Roman law by specified regulations, and similar provisions have been introduced into the civil code of France. (Code Civil, art. 614.) We are not aware of any express common law decision upon this subject; but we find it said of old, in Rolle’s Abr. 564, tit. Trespass : <£ It seems that a man who has land closely adjoining my land, can not dig his land so near mine that mine would fall into his pit, and an action brought for such an act would lie and in Wyatt vs. Harman, (3 Barn. & Adol. 874,) Lord Tenderden remarked, in delivering the judgment of the court of king’s bench : ££ It may be true that, if my land adjoins that of another, and I have not, by building, increased the weight upon my soil, and my neighbor digs in. his land, so as to occasion mine to fall in, he may be liable to an action.”

When, however, the lateral pressure has been increased by the erection of buildings, it seems to be well settled at common law by authorities, that no man has a right to an increased support unless he has acquired such a servitude by grant or prescription. It is so laid down in the early case of Wilder v. Minsterly (2 Rolle’s Abr. 564). ££ If A. be seized in fee of copy-hold land, closely adjoining the land of B., and A. erect a new house upon his copy-hold land, and any part of his house is erected on the confines of his land, adjoining the land of B.; if B. afterwards dig his land so near to the foundation of the house of A., but not in the land of A., that by it the foundation of the messuage and the messuage itself fall into the pit, still no action lies by A. against B., inasmuch as it was the fault of A. himself, that he built his house so near the land-of B. ; for he can not, by his own act, prevent B. from making the best usage of his land that he can.” And Lord Tenderden, in delivering the judgment of the court in the case before cited, said: “The question reduces itself to this : if a person builds to the utmost extremity of his own land, and the owner of the adjoining land digs the ground there, so as to remove some part of the soil which formed the support of the building so erected, whether an action lies for the injury thereby occasioned. Whatever the law might be, if the damage complained of were in respect of an ancient messuage, possessed by the plaintiff, at the extremity of his own land, which circumstance of contiguity might imply the consent of the adjoining proprietor at a former time to the erection of the building in that situation, it is enough to say in this case that the building is not alleged to be ancient, but may, as far as appears from the declaration, have been recently erected, and if so, then, according to the authorities, the plaintiff is not entitled to recover.” In the more recent case of Partridge v. Scott, (3 Mees. & Wels. 220,) which involved the same question, it is said: “If a man builds his house at the extremity of his land, he does not thereby acquire any right of easement, for support or otherwise, over the land of his neighbor. He has no right to load his own soil so as to make it require the support of that of his neighbor, unless he has some grant to that effectand the American cases are, it is believed, to the same effect. (Thurston v. Hancock, 12 Mass. 221.)

Although not altogether in good taste, I repeat, as applicable to the present case, what I had occasion to say in a former case. It is a logical consequence from legal principles, that to the extent to which'a person has a right to act, others are bound to suffer ; and that any damage that may accrue to them, while a person thus exercises his own rights, affords no valid gfound of complaint. The loss occasioned in such cases is “ damnum absque injuriaEvery person, however, who is performing an act is bound to take some care in what he is doing. He can not exercise his own indisputable rights without observing proper precaution not to cause others more damage than can be deemed fairly incident to such exercise. In Wallars v. Pfeil, (Mood. & Malk. 364,) the plaintiff had neglected to take any precaution by shoring up their own houses within, or in any other way against the effect of pulling down the defendant’s adjoining house ; and it appeared that this might have been so done that the acccident would not have happened to the same extent. There was also evidence to show that the accident was owing to the bad foundation of the plaintiff’s house ; but there was conflicting evidence as to whether, by due care on the part of the defendant’s workmen, the mischief might have been entirely avoided. In summing up, the chief justice of the queen’s bench stated it to be now settled that the owner of premises adjoining those pulled down, must shore up his own in the inside, and do every thing proper to be done upon them for their preservation; but, although that had not been done, still the omission did not necessarily defeat the action, and that if the pulling down were irregularly and improperly done, and an injury were produced thereby, the person so acting would be liable, notwithstanding the omission of the plaintiff; and the jury were accordingly charged, that, if the defendant’s house was pulled down in a wasteful, negligent and improvident manner, so as to occasion greater risk to the plaintiff than in the ordinary course of doing the work he would have incurred, then the defendant was liable to make compensation for the consequences of his want of caution; but that if they thought fair and proper caution had been exercised, then the defendant would be entitled to a verdict. The result of the cases, we think, is, (and such would seem to be the reasonable doctrine,) that, if a man in the exercise of his own rights of property do damage to his neighbor, he is liable, if it might have been avoided by the use of reasonable care; and it seems to be usual in England for a party intending to make alterations that may affect his neighbor’s premises, to give notice of his intention; but whether any such duty be imposed by law (Town v. Chadwick, 8 Scott, 1) need not be inquired into here, as the present plaintiff knew of the digging and took measures to protect himself against the consequences of it.

These principles require us, we think, to reverse the judgment, and send the case back for a second trial. We do not think there is any error in the refusal of the defendant’s first and fourth instructions. A party may subject himself to responsibility by the want of reasonable care, although his digging be confined to his own ground and do not exceed a reasonable depth; nor is he protected' by the fact that he used such care as his builder, who was a skillful and careful person, deemed necessary. The question is, as to the fact of negligence, whether the work were done in a careless and improvident manner, so as to occasion greater risk to the plaintiff than in the reasonable course of doing the work he would have incurred, and not whether, in the opinion of the superintendent, no matter how skillful he may have been, every thing was done that he deemed necessary. His opinion may be proper evidence to be considered by the jury, but it does not conclude the matter, constituting of itself a bar to the plaintiff’s recovery. But the error is in plaintiff’s third instruction, where an attempt is made to define, with precision, the degree of care that must be used in a case like the present, in order to exempt a party from liability ; and the standard there adopted is substantially that care that a prudent man, experienced in such work, would have exercised, if he had been himself the owner of the injured building. Now it is quite evident, we think, that this is going beyond the care that the law exacts upon such occasions. It is to be observed that the defendant was upon his own ground, and in digging upon it, exercised an undoubted right, of property, which the plaintiff had no right, either by express grant or prescription — by statute or local ordinance— in any way to interfere with or prevent; and although, in exercising his rights, it was certainly his duty to his neighbor to use ordinary care in order to avoid doing him harm, he was not bound to observe the same care that he would have taken, as a wise and sensible man, if he had been the owner of both buildings — the one erected and the one about to be erected. He would, of course, in that event, have shored up and would have submitted to many inconveniences, and, indeed, would have incurred considerable additional expense in doing the new work, rather than expose the building already erected to any risk. Every prudent person, in such a situation, would take precautions — subject himself to inconveniences, and forego the exercise of every right that would endanger his present building, if he found it for his interest to do so. In the present case, if the laying of the new foundation, in very short sections, would have been attended with increased expense and with danger to the sufficiency of the new wall, and the defendant had been the owner of the plaintiff’s building, he might have found it for his interest to have submitted, and most probably would have submitted, to this inconvenience and risk, and even increased expense, to avoid all hazard to his own property; yet the law does not exact of him the same forbearance and care and expense for the security of his .neighbor’s property that he would have found it for his interest to have taken for his own. We do not know that the instruction was intended, or indeed understood by the jury in the sense we impute to it. It may, however, have been so understood, and if so, could not but have misled them; and we shall therefore reverse the judgment, that the case may be retried upon a fuller understanding of the facts and of the law applicable to them.

The judgment is reversed, and the cause remanded.


author: Scott, Judge,

text:
    Lee et al., Respondents, v. Stern et al., Appellants.
    1. Where, in an action on a contract, an offer was made by the defendant in writing, under section 1 of article 23 of the practice act of 1849, to allow judgment to be taken against him for a certain sum, which offer was accepted by plaintiff and judgment entered accordingly; held, that defendant is not entitled to a judgment for costs, on the ground that the sum for which judgment is thus allowed to be taken is below the jurisdiction of the court.

      Jlppeal from St. Louis Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Hill, Grover & Hill, for appellants.

      Hudson & Thomas, for respondents.
   Scott, Judge,

delivered the opinion of the court.

The question in this case arises under the 1st section of the 23d article of the present practice act. The section referred to is in these words : “In any action arising on contract, the defendant may, at any time before trial or judgment, serve on the plaintiff an offer in writing, to allow judgment to be taken against him for the sum, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof, within ten days, he may file the offer and an affidavit of notice of acceptance, and judgment shall be entered accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence or commented on before a jury ; and if the plaintiff fail to obtain a more favorable judgment, he shall tecover no costs, but shall pay the defendant’s costs from the time of the offer.”

This was an action on a contract, and the defendant made an offer to confess a judgment for $31 50, which was accepted by the plaintiffs. The suit was in the Court of Common Pleas. Judgment was entered for the sum confessed, and also for costs. The defendants maintained that the judgment for costs should have been entered for them, as the amount confessed, and for which judgment was rendered, was below the jurisdiction of the court. The question is, for whom should the judgment for costs have been given ?

This case, in our opinion, is not influenced by the general law of costs, nor the decisions which have been made under it. It stands on the section of law which has been copied above. We conceive it would be evidently against the spirit of the act to make the plaintiff lose his costs by an acceptance of the offer of the defendants. Such a construction would little harmonize with its policy, as in many cases it might prevent a compromise. As the statute confers a privilege on the defendant at the expense of the plaintiff, there is no authority for extending it further than its terms will warrant. If a plaintiff will, in the spirit of the act, accept the offer, it would be hard to subject him to the payment of costs, as he finds no intimation in the law that, by so doing, such a consequence must follow. The provision is in terror to the plaintiff, and if he yields to it, there is no reason why he should be subjected to a liability not mentioned in the statute.

The judgment is affirmed;

the other judges concurring.


text:
    Pearce, Respondent, v. Burns, et al., Appellants.
    1. Where a cause is tried hy the court sitting as a jury, the finding of the facts should warrant the conclusion of law declared by the court and the judgment rendered; in reviewing the law of a case upon the facts found, the supreme court will not, from the facts, as found, infer or declare the existence of other facts.

      Error to St. Louis Court of Common Pleas.

    This was a suit commenced by attachment upon two promissory notes, executed by defendants, James Burns and Henry Burns, amounting in the aggregate to $283 50. The writ of attachment was predicated upon an affidavit that defendants had “ fraudulently concealed or disposed of their property and effects so as to hinder and delay their creditors.” This writ was served upon E. GL Roberts and Benjamin E.' Kerr, of the firm of Roberts, Kerr & Co., as garnishees.
    Defendants put in issue, by a plea, the truth of the facts alleged in the affidavit. Upon the issue thus raised, the court, sitting as a jury, found for plaintiff, and judgment by default was afterwards given for plaintiff for 'the full amount of the notes sued upon. The following is the finding of the facts by the court upon the issue raised by the plea to the affidavit: “That in January, 1854, the copartnership of Burns & Brother was composed of James Burns and Henry, and was doing business in Warsaw, Missouri; that said copartnership was at that time in failing circumstances ; that it was indebted to the firm of Houseman & Lowry, of St. Louis, for over eleven hundred dollars, cash advances, and was also indebted to the plaintiff and to others in St. Louis ; that Houseman* of the firm of Houseman & Lowry, went to Warsaw in that month to collect the debt due Houseman & Lowry; that Houseman took a bill of sale of a lot of 'bacon and lard belonging to Burns & Brother, supposed to be worth at the time in Warsaw two thousand five hundred dollars, to secure the payment of the demand of Houseman & Lowry, and under said bill of sale took possession also of the property itself. The same had been previously stored by Burns & Brother, in a warehouse owned by Mr. Hicks. Houseman rented the warehouse of Hicks, and took the key thereof, and, on leaving Warsaw for St. Louis, left the key with the firm of Henry Boreland & Co., or with Mr. Blakey, as the agent of Houseman & Lowry. Before leaving Warsaw, Mr. Houseman was requested by the defendant to accept certain bills which he would draw in favor of some of the debtors of Burns & Brother in St. Louis, for the surplus, if there was any, as it was supposed there would be, after paying out of the proceeds of the sale of said property the demand of said Houseman & Lowry. Houseman refused to promise to accept said drafts, but agreed that out of said surplus he would pay such drafts to the extent of the surplus, in the order in which such drafts should be presented to him. In February, 1854, Mr. Simpson, as agent of the plaintiff, called on Burns & Brother, in Warsaw, to collect a demand that -the plaintiff had against them. They gave to Simpson a draft on Houseman & Lowry, in favor of the plaintiff, for a part of his demand, and promised thereafter to pay the balance, assuring said Simpson, at the time, that said draft would be paid by Houseman & Lowry ; that they (Burns & Bro.) had put said property in the possession of Houseman & Lowry, and that there would be a surplus large enough to satisfy the draft. Said draft was presented by said Simpson, as plaintiff’s agent, to1 said Houseman & Lowry, and the latter declined to accept, as the property had not yet arrived, or been shipped ; but promised, if there was a sufficient surplus, to pay that draft, after the payment out of the surplus of two others that had been previously presented. Burns & Brother were insolvent at the time Simpson called on them, and continued to be so until after these transactions. In June following, the property in question was shipped in the name of and by Martin & Cook, of Warsaw, to Roberts, Kerr & Co., of St. Louis, under instructions from Martin (who was brother-in-law of James and Henry Burns) to pay out of the proceeds of the shipment to Houseman & Lowry their demand against Burns & Brother, and hold the balance for Martin & Cook. Said property was not shipped on the order or with the consent or knowledge of Houseman & Lowry. They never redelivered to Burns & Brother, or ever authorized any one to do so for them. The first knowledge they had of said shipment was after Martin & Cook came to St. Louis with it, consigned to Roberts, Kerr & Co. The latter firm paid out of the proceeds of the shipment to Houseman & Lowry their demand, amounting to $1258 02. The balance of the proceeds, amounting to $584 81, still remains in the hands of Roberts, Kerr & Co., to the credit of Martin & Cook, said latter having been stopped by judicial process. Burns & Brother knew of the shipment in the name of Martin & Cook to Roberts, Kerr & Co. How Martin & Cook got possession of the property, so as to ship it, the evidence does not disclose. Houseman & Lowry did not give any order for i^s shipment by Martin & Cook, or to Roberts, Kerr & Co. When the plaintiff ascertained that the property in question had been shipped to Roberts, Kerr & Co., instead of Houseman & Lowry, he instituted this suit by attachment.
    “Upon the foregoing facts, the court finds that, at the commencement of this suit, the defendant had fraudulently concealed or disposed of his property or effects, so as to hinder and delay his creditors, and declares that the plaintiff is entitled to proceed with this action.”

      Bay, for plaintiff in error.

      Wickham & Snead, for defendant in error.
   Leonard, Judge,

delivered the opinion of the court.

The issue made in the cause by the plea in abatement was, whether the defendants had “fraudulently concealed or disposed of their property, so as to hinder or delay their creditors.” Upon a trial by the court, the facts involved in it were specially found, and the court having pronounced upon these facts that the defendants had concealed or disposed of their effects as alleged, the only question now submitted to us is, whether the facts so found justify the conclusion. We do not think enough is found to enable us to declare, as a matter of law, against the defendants upon the plea in abatement, and for this reason the judgment must be reversed, and the cause remanded. We always regret being under the necessity of determining a case upon what may turn out to be a mere matter of form ; but the obligation we are under of deciding each case by general rules, applicable alike to all similar cases, sometimes imposes this necessity upon us, and the particular evil must then be submitted to on account of the general good that results from the strict adherence to principles.' It may be that the inferior court was entirely satisfied upon the evidence before it, that the bacon and lard were put into the possession of Martin & Cook by the direction of Burns & Brother, to be shipped by the former, in their own names, to St. Louis, but upon a secret trust for the defendants ; and that the purpose of the defendants, in thus disposing of their property, was to conceal it from their creditors and secure it for their own use; and that the court would have so expressly found, if their attention had been called to the matter. But yet no such intention or purpose or trust has been found as a fact in the case, nor indeed is it found that the defendants had any part or lot in the shipment to St. Louis, (although it seems they knew of it,) or in the disposition of the property here. The fact is, that no matter how the truth may be, there is nothing found incompatible with the idea that the defendants were guiltless of the charge imputed to them. It was for the plaintiff to prove his allega» tion, and, although the circumstances stated in the finding may be sufficient not merely to arouse suspicion, but fully to justify a jury or a court sitting in the trial of the fact, in inferring that the shipment to St. Louis, and the disposition of the property there, was or has been suggested, yet we can not draw this inference as a mere natural presumption, and in this way supply the omission. We sit here, in cases like the present, to determine questions of law, and not to try matters of fact, and must therefore limit ourselves to pronouncing conclusions of law upon the facts found, and can not infer from these facts other facts by the force of mere natural presumptions, and then pronounce, upon the combined effect of both, the facts thus inferred and the facts expressly found.

It may not be improper here to advert for a moment to the views expressed by this court as to the character of the finding required by the law, when the trial is by the court, and as to the province and duty of this court, when the question here is as to the sufficiency of the finding to settle the issues of fact made between the parties. In Bates v. Bower, (17 Mo. 553,) it is said : “ The decision is evidently a substitute for a special verdict, or the statement of facts in the old form of rendering a decree in chancery.” The same views are reported in Farrar v. Lyon (19 Mo. 123): “ The finding of the court is like a special verdict in containing a finding of facts not of evidence.” And in the St. Louis Hospital Association v. Williams’ adm’r, (19 Mo. 612,) it is said : “ In reviewing the law of a case upon the facts found, it is not the province of this court, from one or more facts, as found, to deduce the existence of another fact.” Speaking alone for myself, I remark that perhaps it might have been better originally to have holden it to be sufficient to find the issuable facts alleged in the pleading, in the general form in which it was allowable to plead them, but this was settled otherwise ; and as this provision is omitted in the Revised Code of 1855, a reconsideration of the matter, even if it were allowable, would be of no practical value. Under the law as now settled, the facts constituting the ultimate issuable fact put in issue between the present parties, must be so found that this court can pronounce, as a matter of law, that they constitute a fraudulent disposition or concealment o£ the party’s property, within the meaning of the plaintiff’s allegation ; and we think that can not be done upon the present finding, even supposing that if we were sitting in the trial of the fact, the circumstances found would satisfy our consciences of the truth of the allegation.

The judgment is reversed, and the cause remanded.


text:
    Pearce, Appellant, v. Roberts et al., Garnishees of Burns, Respondents.
    1. Pearce v. Burns, ante, (p. 577,) affirmed.

      •Appeal from St. Louis Court of Common Pleas.

    This was a suit commenced by attachment against James and Henry Burns (the latter of whom died pending the suit), of the firm of Burns & Brother, on two promissory notes. Roberts and Kerr were summoned (the former, June 19th, 1854, the latter, July 14, 1854,) as garnishees, and interrogatories filed. The garnishees denied in their answer all indebtedness to Burns & Brother ; also the possession of any property belonging to Burns & Brother. Plaintiff replied to this answer, and denied so much of the answer of the garnishees as alleged “ that at the time they were summoned herein as such, they were not in possession of any goods, money, or effects of the defendants as charged,” &c. Upon the trial of the issue thus raised, the court found the facts to be as follows : “ That the property mentioned in the following writing came to the hands of the garnishees as hereinafter stated.
    “ Warsaw, Benton county Mo., Jan’y 24, 1854.
    “ Received of Messrs. Houseman, Lowry & Co., of St. Louis, Mo., $1074 09, as an advance in cash on lard in barrels and kegs, hams, shoulders and sides in bulk, the product of three hundred and sixty hogs, now stored in L. H. Hicks’ warehouse in Warsaw, the same to be shipped to Messrs. Houseman, Lowry & Co., St. Louis, on opening of navigation, for sale for account of Messrs. Burns & Brother, and to be covered by Messrs. H., L. & Co. by fire and marine insurance, and now subject to their order, control and possession; proceeds, after the above advance and charges, to be subject to order of Messrs. Burns & Brother. [Signed] Burns & Brother. [Witness,] Y. C. Blakey.”
    “ I hereby acknowledge that, in my presence, Mr. J. D. Houseman took possession of property, of meat consisting of hams, sides and shoulders, lard in barrels and cans, for advances made to Messrs. Burns & Brother, for use of Messrs. Houseman, Lowry & Co., consisting of the product of 360 hogs, now in warehouse, which Mr. H. L. Hicks is agent and has control. Warsaw, January 24th, 1854. [Signed] Y. C. Blakey.”
    After the execution of said paper, Mr. Houseman, for Houseman, Lowry & Co., took possession of said articles and put them in a warehouse, rented for the purpose, at Warsaw, Mo., and left the key with the agent of Houseman & Lowry, directing that the goods should be sent forward to St. Louis according to the orders to be by them thereafter given. At the time, it was supposed by Burns & Brother and by Houseman that the articles would sell for more than enough to satisfy the demands and charges and commissions of Houseman & Lowry. It was therefore agreed by Houseman & Lowry that they would accept drafts for the balance which might be in Houseman & Lowry’s hands, after the goods were sold and the claims of the latter were satisfied out of the proceeds of the sale. Houseman & Lowry sent by the steamboat Kentucky No. 2 an order on their agent to forward the articles to them by the said steamer. Said articles were brought on said steamer, consigned by Martin & Cook to the garnishees, with directions to pay Houseman & Lowry their demands out of the proceeds of the sale, and to pass the balance to the credit of Martin & Cook. Martin is a brother-in-law of James and Henry Burns. The evidence does not show how Martin & Cook got possession of the articles. Houseman & Lowry never authorized Martin & Cook to take possession of or meddle with said articles in any way, nor were they aware, until the articles reached St. Louis, that Martin & Cook, or any one but Houseman & Lowry’s agent, had got possession of the articles or attempted to control them.
    After the articles had been delivered to Houseman & Lowry at Warsaw, as aforesaid, and Burns & Brother had requested, and Houseman & Lowry had promised, to accept drafts for said balance as aforesaid, and after the return of Houseman to St. Louis and before the articles were forwarded to St. Louis, drafts were drawn by Burns & Brother on Houseman & Lowry for various sums, one of said drafts being in favor of Pearce & Benedict for $842 25 ; the amount of said drafts by Burns .& Brother on H. & L., in favor of various parties, exceeding the balance of the proceeds of the sale after payment of the demand of Houseman1 & Lowry. Said drafts were duly presented to Houseman & Lowry and they declined formally accepting them, but verbally promised to pay the same out of the said balance, in the ordér in which they were presented, so far as said balance would go, when received. Afterwards, when the. articles came forward, consigned as aforesaid to the garnishees, (the articles arriving here on the 6th day of June,) Mr. Houseman called on the garnishees on the 7th day of June, and told them that the articles belonged to Houseman & Lowry ; that Martin & Cook had nothing to do with them ; that they (H. & L.) did not themselves care about the articles, further than to get the amount due them; and unless they were paid, they should take possession of the articles, and that they (H. & L.) had agreed to pay over to the payees of the aforesaid drafts the balance after the claim of Houseman & Lowry Was satisfied.
    Houseman & Lowry not taking possession of the articles, the garnishees went on and sold the articles. The gross proceeds of the sale were $2030 62 ; commission and charges, $$37 81; nett proceeds, $1792 81. On the 9th of June, Martin & Cook bought of garnishees goods to the amount of $450 64. The garnishees paid Houseman & Lowry’s claim — $1258 02 — and passed the balance to the credit of Martin & Cook, applying $450 64 thereof to the payment of what was due from Martin & Cook to the garnishees.
    Thereupon, the court declares that the garnishees were not, when summoned as 'garnishees in this case, the debtors of James and Henry Burns, and the plaintiffs are not entitled to recover in this action.
    Judgment was accordingly given against the plaintiff, and the garnishees recovered their costs, &c.
    A motion for a review was made by plaintiff, and overruled, and the case is brought here by appeal.

      Wickham & Snead, for appellant.

      Biddlecome, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

This cause must take the fate of Pearce against Burns, ante, (p. 577,) and be reversed and remanded, on the same grounds; and we refer to the opinion in that case, instead of repeating here what is there said. Both suits arose out of the same transaction, and the principal question in both was, whether the disposition of the property to Martin & Cook, made by Burns & Brother, was an honest transaction, or a mere transfer of the formal title, in order to protect the property for the latter against their creditors. In the former case the attachment against Burns was attempted to be supported on that ground, and in the present suit that we suppose is the ground upon which these defendants, who had in their hands', as commission merchants, the proceeds of the property which had been shipped to them by Martin & Cook, are to be charged as the garnishees of Burns & Brother. If the garnishees have any just claims upon the property arising out of their own transactions with Martin & Cook, these, of course, will not be affected by any fraudulent combination between others to which they were not privy; but if, at the time of the garnishment, they held the money for Martin & Cook, who held it in fraudulent trust for Burns & Brother, they must answer for it, we suppose, to the creditors of the latter. Here, however, the facts found are not sufficient to enable us to determine, as a matter of law, that such was the character of the transaction between Martin & Cook and Burns & Brother.

The judgment is therefore reversed, and the cause remanded;

Judge Ryland concurrring.


author: Ryland, Judge.

text:
    Ames, Appellant, v. Bircher and another, Respondent.
    1. Case affirmed because no exceptions were taken; no bill of exceptions allowed.

      Appeal from St. Louis Law Commissioner’s Court.

      Broadhead, for appellant.

      Wickham & Snead, for respondent.
   Ryland, Judge.

In this case there is nothing upon the record for us to decide — mo bill of exceptions taken or appearing ; nor does it appear that any act or ruling of the court below was excepted to at the time by either party. It may be true, if the facts be as represented, that Wash was improperly admitted as a party; but even that error, if it occurred, could not have prejudiced the adverse party. This alleged error, however, is not saved; and there is no reason why this case should have been brought here.

Judgment affirmed;

the other judges concurring.


text:
    Picot, Appellant, v. Signiago, Respondent.
    1. A surety may contract as a “ principal,” and by so doing will renounce the right of setting up a defence arising out of the relation of principal and surety.
    2. A. and B. executed a bond whereby they obligated themselves “ as principals” to build a house for C., the house to be built by A.; payments to be made as the work should progress, retaining twenty-five per cent, on the amount of work done, and the balance after tire entire completion of the work, &c., to the satisfaction of the said C., and after the settlement of “ all lawful claims, liens or demands against said work, on account of materials furnished or work done;” and C. to be secured “from all claims and losses.” Liens were filed by material men against the building, which were paid by C. Held, in a suit by C. against B., that B. could not set up as a defence that C. had paid to A. the whole value of the work done, not reserving the 25 per cent.; he (C.) not knowing at the time that there were valid liens upon said building.
    3. In order to entitle C. to recover compensation in such a case, it is not necessary that payment of the sums for which the liens were held should be first enforced by suit and execution. All that is necessary is that they should be valid liens and enforceable.

      Error to St. Louis Court of Common Fleas.

    This was a suit brought by Louis G. Picot against James Signiago, to recover damages for the breach of a contract. Picot entered into a contract with one Porter Bush, to do all the necessary brick work, according to certain specifications, of a market-house, then about to be erected by said Picot. The contract among other stipulations contained the following : “ And the said Louis G. Picot, on the second part, does hereby covenant and agree with the said Bush, that he shall and will pay to the said Bush, his heirs or assigns, for the entire completion of the work mentioned, to the satisfaction of the said superintendent, at the rate of $8 50 per thousand of bricks, measured when in the walls, without any extra allowance ; payments to be made as the work progresses, retaining twenty-five (25) per cent, on the amount of work done, and the balance after the entire completion of the work to the satisfaetion of the said Louis Gr. Picot or superintendent, and after the settlement of all lawful claims, liens or demands against said work on account of materials furnished or work done.” There was also this further clause : “ And for the faithful performance of all and singular the terms of this contract, and for the securing the said Picot from all liens, claims and losses, the said Bush, and James Signiago, and--■, all as principals, do hereby bind themselves, their executors, administrators and assigns, unto the said Picot, in the penal sum of one thousand dollars, firmly by these presents. Witness our hands and seals this 16th of September, 1850. [Signed] Porter Bush, (seal). James Signiago, (seal).
    Plaintiff assigned as a breach of said contract that the said Bush and Signiago had not secured plaintiff from all liens, claims and losses, but that a large number of liens upon said building had been filed in the office of the clerk of the Circuit Court by mechanics and laborers employed upon said building by said Bush, which liens were claims and charges upon said building valid in law. Plaintiff alleged that he had paid $104 38 of said liens; that the remaining valid liens against said building amounted to $277 55; that plaintiff, at the urgent solicitation and request of the said Bush, paid to him all the money due to him on account of said contract, with the exception of about $46, and that such payments were made without any knowledge that any liens had been filed.
    The defendant, in his answer, admitting the execution of the contract, says : “ That, according to said agreement, the said plaintiff had in his possession moneys belonging to said Porter Bush, and retained from said Bush more than sufficient to pay every liability, lien, claim and demand against said market-house mentioned in plaintiff’s petition, due or to prove due, or arising from the work done by said Bushand more than sufficient to pay all debts, dues and demands against said market-house by reason of any failure on the part of the said Bush to faithfully perform all and singular the terms, conditions and stipulations in said agreement, &c.

      On the trial, plaintiff gave testimony tending to prove the value of the work done by Bush under the above contract; also the amount paid by plaintiff to Bush on account of said work ; that a number of liens and claims on the building were filed in the clerk’s office of the Circuit Court; that judgments were obtained on said liens in the Circuit Court, and that plaintiff paid those judgments.
    Plaintiff then,offered to prove that a number of liens and claims on said building were filed by different persons ; that they were prosecuted to judgment against Bush before a justice of the peace for St. Louis county, and that plaintiff paid these judgments without the filing of any transcripts in the clerk’s office of the Circuit Court, and without the issue of any executions thereon, and offered, in this connection, to prove that the payments were made by plaintiff upon representation made to him by the respective claimants that they would file a transcript and take out execution on their respective claims unless they were paid; that such payments were made by plaintiff to save the accumulation of costs. This testimony was ruled out by the court. To this exclusion plaintiff excepted.
    Plaintiff further showed that Bush left the country about or just before the time of the completion of the building, and that plaintiff, a few evenings prior thereto, paid Bush almost the whole of the 25 per cent, then in his (plaintiff’s) hands at the request of Bush, and without the knowledge or consent of defendant (Signiago).
    The following instruction, asked by plaintiff, was refused by the court: “ 1. If the jury believe from the evidence in this case that the plaintiff paid the judgments obtained in the Circuit Court upon the liens filed against the Harney market, they will find for the plaintiff the amount so paid, (deducting therefrom the amount, if any still due from plaintiff to Bush,) with interest from the time when said amounts were paid.” Plaintiff excepted to the refusal of this instruction.
    The court then gave the following instruction: “ 2. If the jury believe from the evidence that the plaintiff paid on the judgments in the Circuit Court, read in evidence, any sums of money, they will find for the plaintiff, unless they further find that 25 per cent, of the contract price of the work done by Bush, under the contract sued upon, together with the amount due Bush, still in the hands of plaintiff, equals or exceeds the amount so paid by plaintiff. By the terms of the contract sued upon, the plaintiff was to retain 25 per cent, of the contract price of the work and materials furnished by Bush on the building in question, until the work was completed, and until all lawful claims, liens and demands against said work, on account of materials furnished or work done, were settled ; and if plaintiff, before the completion of said work and settlement aforesaid, paid over to said Bush any portion of said 25 per cent., then the defendant is entitled to have the portion of said 25 per cent, so paid over, and also whatever is still due to said Bush, deducted from the amount of payment made by the plaintiff on the liens offered in evidence. If after making such deductions the balance is in favor of the plaintiff, they will find for the plaintiff and assess his damages at the amount of said balance. If there is no such balance in favor of the plaintiff, they will find for the defendant.” Plaintiff excepted to the giving of this instruction.
    Plaintiff submitted to a nonsuit, with leave to move to set the same aside, and a motion to that effect having been made and overruled, the case is brought here by writ of error.

      C. B. Lord, for appellant.

      1. Signiago was a principal in the contract. 2. Appellant was not bound to retain 25 per cent, of the contract price of said work. 3. Appellant was entitled to recover the amount paid by him on all the liens on which judgment was obtained before the justice. I. When a man contracts to make himself a principal, the law will not make him a surety. • (10 Barn. & Ores. 578 ; 1 M. & W. 568 ; 10 Pet. 257 ; 14 Pet. 201 ; 2 Am. Lead. Cases, 180.) It was expressly stipulated that the liability of Signiago was to be that of a principal. Modus et convmtio vincunt legem. Where several parties sign an instrument as if all were prineipals, but the relation of principal and surety exists as between the parties, that fact may be proved; but where, as in this ease, the surety in fact agreed to become principal, his legal liability is that of a principal. The court below, in giving and refusing instructions, assumed that the relation of Bush and Signiago, as between themselves, controlled the rights of appellant against the express agreement of Signiago. If the liability of Signiago was that of a principal, the court erred in refusing the instruction asked for by appellant, and in assuming, by the instructions given, that appellant was bound to retain 25 per cent, of the contract price in his hands. II. Appellant was not bound to retain 25 per cent, of the amount of the contract price in his hands. It was a privilege only reserved to himself; no liens were filed at the time. HI. The appellant can recover for all moneys paid upon the judgment obtained before a justice of the peace on liens duly taken. The court below thought that the payment without the issue of execution of the judgments in all cases where liens had been taken, was voluntary. It was in no sense a voluntary payment, nor does the doctrine of voluntary payments apply to the ease. The payments were made, as appears by the record, after lien filed and ascertainment of the amount by the judgment of a tribunal of competent jurisdiction ; all the subsequent proceedings required by the statute are in the nature of execution ; the payment was made to save costs. Now suppose a suit brought against Bush for money paid on those liens, would there be any doubt about a recovery against him ? Signiago stands precisely as Bush would have stood had he been sued.

      Hart & Jecko, for defendant in error.
    1. The court below properly excluded the testimony offered by appellant. The judgment before the justice was against Bush, and no act was done by the plaintiff to perfect said judgment, so as to make it a lien on the building; and the voluntary payment of a judgment against Bush, which might or might not have been sufficient to have made it a judgment against the building, does not in any way bind Signiago to account to Picot for said payment, so voluntarily made, they being judgments against Bush and not liens on the building. The judgments before the justice were mere judgments against Bush, and did not even operate as a lien on the real estate of Bush. No act was done to perfect, by means of said judgments, a lien against the Harney market, which could only be done by filing a transcript of the judgment in the Circuit Court; and the payment by Picot of those judgments amounts to the fact that Picot has paid some debts against Bush, and no further can such testimony go. Certainly it is incompetent testimony to charge Signiago. 2. The instructions given by the court were proper and legal. The contract was made between Picot, as trustee, with Bush ; and one of the conditions in said agreement is, that the said Picot is to retain 25 per cent, on the amount of work done and hold the same until after the entire completion of the work to the satisfaction of Picot or the superintendents, and after the settlement of all legal claims, liens or demands against said work on account of materials furnished or work done. Picot, then, was bound to retain the 25 per cent, of the amount of work done until the completion of the building, and all legal liens, claims or demands against said market-house were satisfied ; and having that in his hands and possession, and parting with it or sur-, rendering it to Bush; without the knowledge or consent of Signiago, Mr. Picot loses his claim against Signiago to the amount of the said 2$ per cent, so surrendered to Bush. (Baker v. Briggs, 8 Pick. 122 ; Mayhew v. Crickett, 2 Swaust, 185.) We maintain that, though the word security is not annexed to the name of Signiago in the penal part of the agreement, yet that from the instrument itself, its nature and character, Signiago, being sued alone, will be legally considered as a security for Bush’s faithful performance of the contract; and that Signiago, notwithstanding the word security is not used in the instrument itself, was very properly held to have signed as surety for Bush. We call the attention of the court particularly to the case- of Baker v. Briggs (8 Pick. 122), in support of this position.
   Scott, Judge,

delivered the opinion of the court.

The instruction on which the cause went off in the court below, was not based upon any defence set up in the answer of the defendant; but as the point may come up again after an amendment, and as it was the only matter that was argued before us, it may be necessary to express an opinion in relation to it. The question is, whether one who becomes a party to a bond as surety in reality, and who would be regarded as such but for binding himself as principal,” can claim the right, or set up the defence, growing out of the relation of principal and security.

There is no rule of law which prohibits a surety from waiving the right belonging to him as such. Such a waiver has nothing in itself offensive to the policy of the law. Nor is there any thing in the situation of the surety in regard to the party with whom he contracts, which excites the vigilance or arouses the jealousy of the law. Usually the surety is less subject to the influence of the person with whom he deals, than any other contracting party. There is nothing of surprise or mistake alleged in the transaction. When the relation of surety has been created, there are certain safeguards thrown around it for its protection; but the law throws no obstacles in the way of a renunciation of those rights. If the surety here has not stripped himself of that relation by the contract he has entqred into, it is not easy to see in what manner that object can be accomplished. He expressly binds himself “ as principal.” Now there must have been some purpose in adopting that word. When the term “ principal” is used in a contract, it must be intended in a sense opposite to that of security.” The defendant might have become a mere surety to the contract, but when he renounced that character and expressly bound himself as principal, with what face can he afterwards insist that he is only a surety ? When the plaintiff would not take his obligation as surety, but required him to be bound as principal, where is the justice in depriving him of the fruits of his vigilance, and imposing on him a contract directly contrary to that for which he expressly stipulated ? To hold that the defendant is not bound as principal in this contract, is tantamount to declaring that one who really occupies the relation of surety in a contract, can not be hound as principal — a proposition for which there is no support in the law. We are not without authority on this point. In our highest tribunal, the Supreme Court of the United States, this question has undergone elaborate discussion, and the principle announced there harmonizes with the views here expressed.

. In the case of Spriggs v. The Bank of Mount Pleasant, (10 Pet. 257,) those who were sureties in reality bound themselves “ as principals” to pay a sum of money, and attempted a defence growing out of their relation as sureties. The defence did not prevail. The court said, “ when one who is in reality only security, is. willing to place himself in the situation of a principal, by expressly declaring upon his contract that he binds himself as such, there can not be any hardship in holding him to the character in which he assumes to place himself. As to that particular contract, he undertakes as a partner with the debtor, and has no more right to disclaim the character of principal than the creditor would have to treat him as principal, if he had set out in the obligation that he was only surety.” The same parties afterwards renewed their defence in a court of equity, and the case was up in 14 Pet. 207; the court there remarked that ‘ all the evidence showing that the party was surety, can have no influence against his direct admission in the obligation that he was a principal; and there being no pretence of any mistake or ^surprise, there can be but one meaning attached to this admission, which is, that as, between the obligors and the bank, .all were principals, whatever might be their relation between themselves. They had undoubtedly a right to waive their character and legal protection as sureties, and assume the character of principals. This admission in the obligation must have been for some purpose; and none can be reasonably assigned, except that it was intended to place all the obligors upon the same footing with respect to their liability.”

It may be said that there is a difference between the case under consideration and that to which reference has been made, inasmuch as by the bond before us it appears that the defendant was a mere surety ; whereas, in the case referred to, it did not appear by the terms of the obligation but that all were principals. But, when we reflect that the case in Peters is made to stand on the contract by which the parties bound themselves as principals, the difference amounts to nothing. The court says expressly, “ all the evidence only establishes the fact that the party was surety, and that can have no influence against his direct admission in the obligation that he was principal.”

If what has been maintained above be correct, there can be nothing in the agreement that the plaintiff was bound, by the terms of the contract, to retain in his hands 25 per cent of the money due for the work, until the building was completed and all liens satisfied. It is a begging of the question, and assuming that the defendant was a surety, when, by the terms of his contract, he was a principal. Being a principal, he was not injured by a renunciation by the plaintiff of his right to retain the 25 per cent. The plaintiff was under no obligation to do so, and his neglect can not affect his rights under the contract. The case is, as if a principal in the bond was complaining that the money had not been retained, when it was optional with the obligee whether' he would retain it or not.

The plaintiff is entitled to recover the amount of all valid liens on the building which he has satisfied. If the lien was valid and subsisting, he is entitled to recover its amount, though its payment was not coerced by the process of the law. It could serve no useful purpose to subject the parties to the expense of an. execution.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.


author: Ryland, Judge,

text:
    Lubbering, Respondent, v. Kohlbrecher, et al., Appellants.

      1. Where a material alteration is made in a promissory note by one unauthorized by, and without the knowledge or consent of, the owner of such note, the note is not thereby avoided as against such owner.

      Jlppeal from St. Louis Law Commissioner’s Court.

    The facts are sufficiently stated in the opinion of the court.

      Cline & Jamison, for appellants.

      T. Spies, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The plaintiff brought suit before a justice of the peace on a promissory note for $100. The defence was that it had been fraudulently altered after its execution, and without the consent of the makers. The plaintiff had judgment before the justice of the peace ; the case was then taken by appeal to the law commissioner’s court.

When the trial came off in the law commissioner’s court, the defendant objected to the reading o£ the note in evidence, because it bore marks or evidence on its face of having been altered and erased after its execution; that the plaintiff must first explain the alterations and erasures before she could read the note in evidence. The objection was overruled, and defendants excepted. The plaintiff then read the note in evidence and closed her case.

The defendants then proved that the words “ with interest from date” were added to the note after its execution. The defendants then asked several instructions, which were refused, and the law commissioner, on motion of the plaintiff, declared the law as follows : 1st, the plaintiff is not affected by any alteration or erasures or spoliation made on the note sued on unless the same was done by her, or by her knowledge or consent ; 2d, an agent has no implied authority to do an unlawful act, so as to bind his principals, unless such act is done by the knowledge and consent of the principal; 3d, if the court, sitting as a jury, shall believe from the evidence that what was written upon and erased on the note in question had no tendency to change the language and meaning thereof, then they must find for the plaintiff.

It is not necessary to notice the instructions prayed for by defendants and refused, as the two first given for the plaintiff contained the proper rule on this subject, and the case was tried upon that rule. The 3d instruction given, although not correct, had nothing to do with the case. The alteration here was material, and if made by the party or with her consent, avoided the note, and this was the principle on which the case was decided. The 3d instruction then could do no harm, as we see the case was decided by the court below with proper regard to the principles on which such questions are settled.

Greenleaf says, “ if the alteration is noted in the alteration clause as having been made before the execution of the instrument, it is sufficiently accounted for and the instrument is relieved from the suspicion ; and if the alteration appear in the same handwriting and ink with the body of the instrument, it may suffice. In other words, if nothing appear to the contrary the alteration will be presumed to be contemporaneous with the execution of the instrument. But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done, as well as that of the person by whom, and the intent with which the alteration was made, as matters of fact, to be ultimately found by the jury, upon proofs to be adduced by the party offering the instrument in evidence. ” (Greenl. Ev. § 564.)

In this case, the addition of the words and the subsequent erasure of them was not brought home to the plaintiff. She is not bound by the illegal and unauthorized conduct of those who were her agents ; nor should she be affected by any act wrong in law and not within the scope of the agent’s authority or business, unless the act be sanctioned or subsequently affirmed by her. In the United States v. Spaulding, (2 Mason, 478,) Justice Story very strongly condemned the old doctrine that every material alteration of a deed, even by a stranger, and without privity of either party, avoided the deed. He considered the old rule “ as repugnant to common sense and justice, as inflicting on an innocent party all the losses occasioned by mistake, by accident, by the wrongful acts of third persons, or by the providence of Heaven; and which ought to have the support of unbroken authority, before a court of law was bound to surrender its judgment to what deserved no better name than a technical quibble.” It has been strongly doubted whether an immaterial alteration in any matter, though made by the obligee himself, will avoid the instrument, provided it be done innocently and to no injurious purpose. But if the alteration be fraudulently made by the party claiming under the instrument, it does not seem important whether it be a material or immaterial part; for, in either case, he has brought himself under the operation of the rule established for the prevention of fraud. (1 Greenl. Bv. § 568.) Here the party must make the alteration — an alteration by a third person will not avoid the deed unless the party claiming consented or connived at it.

Upon the whole record, we think the court below decided the case properly. The judgment must be affirmed;

the other judges concurring.


author: FOX, J.

text:
    THE STATE, Appellant, v. JOHN C. HAYES.
    Division Two,
    May 18, 1909.
    1. APPEAL: By State. An appeal by the State from the action of the trial court in sustaining defendant’s objection to the introduction of evidence after the jury was impaneled and sworn, cannot be maintained. Even if the trial court had gone to the extent of declining evidence on the ground that the information was insufficient, and by order of record quashed the information, the State could not appeal.
    2. -: -: Discharge of Defendant. Where the State, the only appellant, had no right to appeal, the appeal will be dismissed, but the defendant will not be discharged by the appellate court, for that court acquires no jurisdiction of the cause, and hence cannot review the record and' determine whether or not defendant is entitled to a discharge.
    Appeal from Ozark Circuit Court. — Hon. A. W. Lincoln, Special Judge.
    Appeal dismissed.

      Elliott W. Major, Attomey-G-eneral, and James T. Blair, Assistant Attomey-G-eneral, for the State.
    (1) No appeal by the State lies from a judgment quashing an information. State v. Adams, 193 Mo. 199; State v. Beagles, 174 Mo. 627; State v. Rozelle, 174 Mo. 635; State v. Vanbrunt, 147 Mo. 20; State v. Carr, 142 Mo. 610; State v. Clipper, 142 Mo. 476; State v. Cornelius, 143 Mo. 180. (2) Where the State attempts to appeal in such ease this court acquires no jurisdiction. State v. Cornelius, 143 Mo. 181; State v. Beagles, 174 Mo. 628. (3) Since the court does not acquire jurisdiction in such case, it is “forbidden to review the action of the circuit court” (State v. Beagles ), and the motion of defendant in so far, at least, as it asks his discharge must be overruled.
   FOX, J.

This cause is presented to this court upon appeal by the State. In 1908 the prosecuting attorney of Stone county filed an information charging the defendant with the offense of embezzlement. The regular judge of the Stone Circuit Court was disqualified and on February 18, 1908, the cause was set down for the March (1908) term of said court before the Pión. A. W. Lincoln, judge of the G-reene Criminal Court, who wa.s by the judge of the Stone Circuit Court requested to appear and try said cause. At the March adjourned term of the Stone Circuit Court, being May 18, 1908, Judge Lincoln sustained respondent’s application for a change of venue, and sent the case to Ozark county for trial. In October, 1908, in the Ozark Circuit Court a continuance was ordered by agreement until December 14, 1908. On this last-mentioned date the defendant was arraigned and entered his plea of not guilty. The jury was impaneled and sworn. The defendant then filed a motion to quash the information, which was by the court taken up and overruled. Whereupon the trial proceeded, and at the very inception of the introduction of testimony on the part of the State the defendant objected to the introduction of any testimony in said cause, which objection .the court sustained. The State refusing further to proceed, the defendant, by his counsel, requested the court to give a peremptory instruction, directing the jury to return a verdict of not guilty, which request was denied and the jury discharged. Defendant then filed a motion for his discharge, which 'the court overruled. The record then discloses that the State through its prosecuting officer, William E. Renfro, filed an affidavit for an appeal to the Supreme Court, which appeal was granted to this court, and the clerk was ordered to make out a full, true and complete transcript in said cause and forward the same to the clerk of the Supreme Court without any unnecessary delay.

This is a sufficient indication of the nature and character of this appeal.

OPINION.

It is apparent from this record that the State, through its prosecuting officer, undertook to prosecute an appeal from the action of the trial court in sustaining defendant’s objection to the introduction of evidence after the jury was impaneled and sworn.

Clearly the State had no right of appeal from the action of the court in that regard. If the trial court had gone to the extent of declining to hear evidence, on the ground that the information was insufficient, and by an order of record quashed the information, still, under the uniform rulings of this court the State has no right of appeal from a judgment quashing an information. [State v. Adams, 193 Mo. l. c. 199; State v. Beagles, 174 Mo. l. c. 627; State v. Rozelle, 174 Mo. l. c. 635; State v. Van Brunt, 147 Mo. 20; State v. Carr, 142 Mo. l. c. 610; State v. Clipper, 142 Mo. l. c. 476; State v. Cornelius, 143 Mo. l. c. 180.]

All concur.


author: GANTT, P. J.

text:
    THE STATE v. A. E. BOEHLER, Appellant.
    Division Two,
    May 18, 1909.
    APPELLATE JURISDICTION: Constitutional Question. The constitutionality of the statute under which defendant was convicted cannot be raised for the first time in the motion in arrest, and if the offense it prescribes is a misdemeanor .the appeal is not to the Supreme Court, but to the Court of Appeals.
    Appeal from Scotland Circuit Court. — Hon. Chas. D. Stewart, Judge.
    Transferred to st. louis court of appeals.

      Pettingill $ Montgomery for appellant.

      Elliott W. Major, Attorney-General, and Chas. G. lievelle, Assistant Attorney-General, for the State,
    (1) Before arraignment defendant filed a motion to quash the information, but in no way challenged the constitutionality of the law, and in no respect referred to, or even suggested a constitutional question. Moreover, his motion to quash is not embodied in the bill of exceptions, and no exceptions were preserved to the action of the court in overruling same, hence it can present no matter conferring appellate jurisdiction upon this court, or any question that can be considered. State v. Price, 186 Mo. 142; State v. Coleman, 199 Mo. 118; State v. Tooker, 188 Mo. 444; State v. Finley, 193 Mo. 211. (2) Further manifesting his satisfaction with the constitutionality of the. law and waiving any alleged insufficiency therein, defendant at no stage of the trial raised a constitutional question either by objection to evidence, by instruction, or motion for new trial. This court has laid down the rule that a constitutional guarantee must be invoked and must have been denied in the trial court in order to give this court appellate jurisdiction. State v. Raymond, 156 Mo. 118; State v. Grant, 194 Mo. 366; State v. Gregory, 170 Mo. 602; Jacob v. St. Joseph, 204 Mo. 357; State ex rel. v. Bland, 186 Mo. 701; State v. Kyle, 177 Mo. 663.
   GANTT, P. J.

This is an appeal from the judgment of the circuit court of Scotland county, imposing a fine for the violation of the Local Option Law. The offense is a misdemeanor and the appeal should have been granted and certified to the St. Louis Court of Appeals, unless there is a constitutional question presented in the record for adjudication. An examination of the record discloses no such question.

Before arraignment the defendant filed a motion to quash, but in no way challenged the constitutionality of the law. That motion is not preserved in the bill of exceptions. The constitutionality of the law was not assailed either in the objections to testimony, the instructions or the motion for new trial. In the motion in- arrest the constitutionality of the Local Option Law was mooted for the first time. No exception was taken to the overruling of that motion, nor was the motion embodied in the bill of exceptions. Hence it is obvious that there is no constitutional question in the record and this court has no jurisdiction of this appeal, and it is ordered that this appeal be transferred to the St. Louis Court of Appeals.

Burgess and Fox, JJ., concur.


text:
    THE STATE v. REUBEN AMMONS and GEORGE GERNON, Appellants.
    Division Two,
    May 18, 1909.
    1. BILL OF EXCEPTIONS: Not Filed at Term. Where no'order allowing the appellant time in which to file his bill of exceptions was made at the term at which the motion for a new trial was overruled, such an order made at a subsequent term at which his motion in arrest, timely filed, was overruled, is of no legal force, and a bill of exceptions filed in pursuance of said order cannot be considered on appeal. The bill must be filed at the term at which the motion for a new trial is overruled or an order must be made at that term allowing time in which to file it.
    2.- PUNISHMENT: Not Fixed by Jury. Where the jury finds defendant guilty of an assault with intent to kill but does not fix his punishment, the court has authority to assess and declare the punishment.
    Appeal from St. Louis City Circuit Court. — Hon. C. Orrick Bishop, Judge.
    Abbirmed.

      Elliott W. Major, Attorney-General, and Chas. G. Rev elle, Assistant Attorney-General, for the State.
    (1) No order extending the time to the December term was made at the term during which the motion for new trial was overruled, and the filing of the bill of exceptions at the subsequent term does not preserve the action of the court in overruling the motion for new trial, and nothing can be considered here but the record proper. State v. Goehler, 193 Mo. 177; State v. Larew, 191 Mo. 192; State v. Harroun, 199 Mo. 258; State v. Jackson, 209 Mo. 398. (2) The jury having found defendants guilty, it became the duty, and was proper, for the court to determine their respective ages, and finding that they were under the, age of eighteen years, to commit them to the Training-School for the shortest term. The verdict and judgment are in proper form. R. S. 1899, sec. 7759; R. S. ■1899, secs. 2648 and 2649; Ex parte Cohen, 159 Mo. 662.
   GANTT, P. J.

This prosecution was begun on the 5th day of June, 1906, by the circuit attorney of the city of St. Louis, by an information duly verified and filed in the office of the clerk of the circuit court for criminal causes. The defendants were arrested and duly arraigned.

On November 1, 1906, the defendants were put on trial before ¿ jury and were each convicted of an assault with intent to kill as charged in the information and the jury further found that each of the defendants was under the age of eighteen years. In due time they filed their motions for a new trial, which were overruled on November 26, 1906. At the same term, they filed their motions in arrest, which were continued to the December term, 1906, and again continued to the February term, 1907, at which last-mentioned term they were overruled. Thereupon each of the defendants was sentenced to the Missouri Training School for Boys for a period of two years and from that sentence they appealed to this court.

At the February term the defendants were allowed until February 24, 1907, to file their bill of exceptions and the same was filed February 21, 1907. No order extending the time for filing the bill of exceptions to the December term, 1906, was made at the November term, at which the motion for new trial was overruled.

I. It is apparent that the filing of the bill of exceptions at the February term, 1907, did not preserve the exceptions taken at the November term, 1906, and there is nothing before this court for review except such matters as are raised by the motion in arrest filed at the December term, 1906, and continued to the February term, 1907, and the record proper. This -is the settled ruling of this court. [State v. Larew, 191 Mo. 192 ; State v. Goehler, 193 Mo. 177; State v. Harroun, 199 Mo. 258; State v. Jackson, 209 Mo. 397.]

II. The motion in arrest assails the information and verdict. The information is in the often approved form and amply sufficient to charge an assault with intent to kill with malice aforethought.

The jury found the defendants guilty of an assault with intent to kill, but did not assess their punishment. By virtue of section 2649, Revised Statutes 1899, in these circumstances, the court was authorized to assess and declare punishment as it did. [State v. Foster, 115 Mo. l. c. 450, 451.] By virtue of section 7759, Revised Statutes 1899, the defendants having been found by both the court and jury to be under the age of eighteen years, the court was authorized to sentence them to the State Reform School for two years, which it did.

We discover no error in the record proper and the judgment of the circuit court is in all things affirmed.

Burgess and Fox, JJ., concur.


text:
    THE STATE v. JOHN RHODES, Appellant.
    Division Two,
    May 18, 1909.
    1. MOTION FOR NEW TRIAL: Not Preserved. Where appellant did not incorporate his motion for a new trial or his exceptions to the overruling of the same in his bill of exceptions, and the bill contains no direction to the clerk to copy the same, the motion cannot be considered on appeal. A noting by the clerk in the record proper that defendant saved an exception to the overruling of his motion does not preserve it for review.
    ■2. -- — : -: No Exceptions to Instructions. And if the motion for a new trial is not preserved in the bill, and the bill shows no exceptions taken to the giving or refusal of instructions, they cannot be considered on appeal.
    3. INFORMATION: Perjury: Sufficient. An information charging that defendant was sworn as a witness in a certain other specified cause, and setting forth the court in which the trial was had, and the materiality of the issue, and with particularity the facts to which defendant falsely testified and bearing directly upon the issue of the guilt or innocence of the defendants in that cause, and the materiality of these facts, and then proceeds to define the perjury by negativing the truth of ,the facts then sworn to by defendant, is sufficient.
    Appeal from Vernon Circuit Court. — Hon. B. G. Thurman, Judge.
    Affirmed.

      D. M. Gibson for appellant.
    Allegations must be proved as alleged in tbe information either literally or substantially as set out, and any variance of substance between the information and evidence in this respect will be fatal. State v. Frisby, 90' Mo. 533. It is not enough when defendant has made two contradictory statements to produce one in evidence to prove the other is false. 2 Wharton on Criminal Law, sec. 1317. When an indictment contains two assignments of perjury and only one is proved, a general verdict .of conviction will not be sustained.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) The information was duly verified and conforms to the statutory requirements and the approved precedents. R. S. 1899, secs. 2033, 2039; State v. Cave, 81 Mo. 451; State v. Morse, 90 Mo. 92; State v. Huckeby, 87 Mo. 418; State v. Powers, 136 Mo. 196; State v. Walker, 194 Mo. 369; State v. Taylor, 202 Mo. 2; 2 Bishop’s New Criminal Law, p. 1015. (3) Since no motion for new trial is properly preserved and no bill of exceptions is shown by the record proper to have been filed at any time, the record proper being free from error, an affirmance must result. State v. Herron, 199 Mo. 160; State v. Wright, 186 Mo. 122; State v. Carnell, 186 Mo. 88; State v. Foley, 113 S. W. 1050 ; State v. Hamilton, 113 S. W. 1050; State v. Long, 113 S. W. 1077.
   GANTT, P. J.

This is an appeal from a judgment and sentence of the circuit court of Vernon county, wherein the defendant was convicted of perjury and sentenced to the penitentiary for seven years. The prosecution was commenced by an information filed by the prosécuting attorney of Vernon county on the 21st day of April, 1908. The defendant was duly arraigned and pleaded not guilty. In due time after his conviction he filed his motions for new trial and in arrest of judgment, which were overruled, and having been sentenced in accordance with the verdict of the jury he appealed to this court.

I. The scope of the questions presented here for review is very narrow for the reason that the defendant did not preserve his motion for a new trial and his exceptions to the overruling of the same in his hill of exceptions. In order that we may not be misunderstood, it is proper to say that in the record proper the clerk has recited that the defendant excepted to the action of the court in overruling his motion for new trial, hut he has not incorporated his. motion for new trial or his exceptions to the overruling of the same in his hill of exceptions, neither is there a direction in the bill to the clerk to copy the same. It has been repeatedly ruled hy this court that the action of the clerk, in voluntarily copying these motions into the transcript, does not make them a part of the record in a legal sense, nor does the noting of the exception on the record proper preserve it for review hy this court. [State v. Tooker, 188 Mo. l. c. 445, and cases cited; State v. Price, 186 Mo. l. c. 142, 143; State v. Modlin, 197 Mo. l. c. 379; State v. Herron, 199 Mo. 159.]

And it may he added in this connection that no exceptions whatever appear to have been taken to the giving or refusal of instructions and hence the instructions are not before us for review.

II. The information, however, is a part of the record proper and the defendant has assailed it as insufficient. The first charge is that the information fails to allege that the defendant willfully, falsely, corruptly, feloniously swore to pervert the true course of justice and to cause the verdict to he rendered in favor of Smith and Norton. The allegation of the information, after alleging that the defendant, Ehodes, was duly sworn and examined as a witness in the cause of State v. Smith and Norton, and that it was material to know and ascertain whether said Smith and Norton purchased certain goods, wares, provisions and valúaMe things from an unknown person on the morning of the 16th of October, 1907, proceeds: “That this being the point in issue and the sole and controlling point upon which the guilt of the said Charley Smith and Joe Norton depended; that thereupon he, the said John Rhodes, sworn as aforesaid, did then and there, with intent to prevent the due course of justice and to cause a verdict to be passed in favor of the said Charley Smith and Joe Norton on trial of the issues joined as aforesaid, and with the express, premeditated design to effect the acquittal and discharge of them, the Charley Smith and Joe Norton, prisoners in the cause aforesaid, did then and there on said trial willfully, corruptly, falsely and feloniously depose and testify and swear in substance and to the purport and effect following, namely: That he the said John Rhodes, was on or about the 16th day of October, A. D. 1907, living in a tent near the houses of the said Charley Smith and Joe Norton, and that on the said morning of the said 16th day of October, A. D. 1907, early in the morning, before sunup, two fellows came along there in the morning inquiring if there was a poultry house in Nevada, right early in the morning, before sunup. I told them Mr. Norton would buy some chickens, that I had sold my stuff to them. He the said John Rhodes, then and there well knowing that his said testimony, given as aforesaid, was not true, on the contrary thereof said testimony was then and there willfully false in this, to-wit: That the said John Rhodes was not in Yernon county, Missouri, on the said 16th day of October, A. D. 1907, nor had he been in said county for a long time prior thereto; he, the said John Rhodes, well knowing that his testimony in this behalf was false' and intended to deceive, and that he had not seen such unknown persons, as testified by him, the said John Rhodes, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.”

By section 2039', Revised Statutes 1899, it is provided: “In any indictment for perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court and before whom the oath 'was taken, averring such court or person to have competent authority to administer the same, and that the matter or testimony alleged to be false was material to a certain matter or issue named, without setting forth the particular facts showing its materiality, together with the proper averments to falsify the matter wherein the perjury is assigned,” etc.

As was said in State v. Cave, 81 Mo. l. c. 454, “the indictment in question is not subject to the objection made to those in the cases of State v. Holden, 48 Mo. 93, and State v. Keel, 54 Mo. 182, where the indictments were held bad because it did not appear from them that the evidence - given on the trial related to any material issue in the cause being tried. But in the present ease, the materiality of the issue being tried and to which the evidence of defendant related, appears clearly upon the face of the indictment. ”

The indictment alleges that Smith and Norton on or about the 27th of February, 1908, were on trial in the circuit court of Yernon county for burglary and larceny for breaking into an outhouse, the property of John C. Nunn and Florence Nunn, and then and there stealing and taking away certain personal property, produce and valuable things, the same being a felony punishable by imprisonment in the penitentiary. Then follows the charging portion of the information in State v. Smith and Norton, and an allegation that they were duly arraigned and had pleaded not guilty, and before a jury duly impaneled and sworn to try said cause. The defendant John Rhodes was duly sworn and examined as a witness, the oath being administered to him by the clerk of the said circuit court in the above court, and upon said trial it became and was material to know and ascertain whether said Charley Smith and Joe Norton purchased the said goods, wares, provisions and valuable things from an unknown person on the morning of the 16th day of October, 1907. Thus the information specifically sets forth the cause in which the alleged perjury was committed; the court in which the trial was had; the materiality of the issue was stated so that the court could determine as to its materiality, and then sets out with particularity the facts to which defendant testified, bearing directly upon the issue of the guilt or innocence of said Smith and Norton, and then proceeds to assign the perjury by negativing the truth of the facts sworn to by the defendant in that case.

We think that the information is not subject to the criticism of defendant’s counsel, but it is a sufficient charge of perjury under our statute above quoted. [State v. Huckeby, 87 Mo. 414.] Unlike the indictment in State v. Morse, 90 Mo. 92, this information expressly charges that the defendant “willfully, corruptly and falsely testified” as alleged and particularly alleges.the materiality of the said testimony to the issues on trial. We think that the objections to the information are without substantial basis.

III. The record shows the arraignment and plea of not guilty; that the jury was duly impaneled and sworn, and the verdict is in proper form as is also the judgment and sentence of the court. Since no motion for new trial is properly preserved and no exceptions to the overruling of the same, the exceptions taken on the trial are not before us for review and the record proper being free from error, the judgment must be and is affirmed.

Burgess and Fox, JJ., concur.