text:
    Sallee & wife, Respondents, v. Chandler, Appellant.
    1. By the law of Kentncky in the year 1830 a married woman had full power of disposition over personal property vested in her for her sole and separate use; the joinder of her husband in a deed of transfer executed by her would not affect its validity.
    2. By the law of Kentucky at that time a reversionary interest in slaves belonging to a woman at the time of her marriage vested immediately in her husband.
    3. By the same law a trustee was not incapacitated to buy the trust properly from his cestui que trust; such transactions should, however, be closely scrutinized.

      Appeal from Marion Circuit Court.

    The plaintiffs, John H. Sallee and Elizabeth Sallee, his wife, in their petition and the amendments thereto, stated that on the 4th day of January, 1821, Sarah Garnett, the aunt of said Elizabeth, made, in Jessamine county, Kentucky, her deed conveying to Henry Chandler, the father of said Elizabeth, certain slaves, Mary and Levi and the future increase of said Mary, in trust for the use and benefit of said Elizabeth ; she, the said Sarah, reserving to herself in said deed the use and profits of said slaves for and during her natural life; that said deed was duly recorded ; that said slave Mary has had certain children, Lewis, Mariah and Aleck; that said Mariah has had a child, Edmund; that said slaves are in the possession of defendant, who claims them as his own property; that said trustee, Henry Chandler, departed this life in 184-; that said Sarah Garnett departed this life in the year 1856, whereupon plaintiff Elizabeth became the owner of said slaves. “ If it be necessary to the protection and adjudication of the rights of plaintiff Elizabeth that she have a trustee, plaintiffs pray the court to appoint one, or direct the execution of the trust. Plaintiffs pray judgment for the possession of said slaves and that they have general relief.”
    The following is the finding of the facts upon which the court based its decree: “ In January, 1821, Sarah Garnett, by deed of that date, conveyed to Henry Chandler (who was the brother of said Sarah and the father of the plaintiff Elizabeth and of the defendant) several slaves — including the slave Levi in the petition mentioned, and Mary, the mother of the slaves Lewis, Mariah and Alexander in the petition mentioned — in trust for the sole and separate use of the plaintiff Elizabeth, her niece, who was then a minor of the age of eighteen years, and residing with her father, the said Henry; the said Sarah Garnett reserving to herself by said deed a life interest in said slaves. The court further finds that in 1829 the said Elizabeth intermarried with the plaintiff, John H. Sallee ; that from and after the date of said marriage the said Henry Chandler reported and represented that said deed of trust to himself for the use of the said Elizabeth was defective, and that in consequence of such defect the plaintiff would have no interest in said slaves at the death of said Sarah Garnett, but that said slaves would belong to him, the said Henry. The court further finds that said deed of trust was duly recorded April 9,1821, in the county of Fayette, Kentucky, where said parties and said slaves then resided ; that in 1830, when the plaintiffs were on the eve of emigrating to the state of Missouri, a negotiation was entered into by and between said Henry Chandler, acting for and on behalf of the said Sarah Garnett, and the plaintiffs, for the purchase of the plaintiff Elizabeth’s interest under said trust deed in the slaves, and the plaintiff, by the pi’ocurement of said Henry, executed the instrument read in evidence relinquishing to said Henry Chandler, the trustee, and to his heirs, the slaves mentioned in the trust deed, and among the number the slave Levi in controversy, and Mary, the mother of the slaves Lewis, Mariah and Alexander in controversy and grandmother of the infant slave Edward mentioned in the amended petition. The court further finds that the consideration of relinquishment was the surrender by Mrs. Garnett of her interest in a girl slave named Maria, then about nine years old, a child of the slave Dorcas mentioned in the trust deed, and born after said deed was executed. The court further finds that said relinquishment was understood by the parties to bo for the benefit of Mrs. Garnett, and that Mrs. Garnett was then sixty-four years of age; and that from the date of said trust deed in 1821 to the time plaintiff removed to this state, after said relinquishment was executed, all of said parties resided in the state of Kentucky; and that both the trust deed and relinquishment were executed in that state. The court further finds that in 1830 plaintiffs removed to this state and retained the possession of said slave Maria up to the time of her death in 1833 ; that in 1832 Henry Chandler, the trustee, and Mrs. Garnett removed to this state, bringing the slaves with them, and that Mrs. Garnett resided with said Henry in this state np to the time of his death which occurred in 1845, and that since the death of said trustee Mrs. Garnett has resided with the defendant and retained the possession of said slaves (excepting the slaves Charles and Major manumitted by her) up to the time of her death, which occurred in October, 1856; that prior to her death Mrs. Gar-nett made her will, duly executed and admitted to probate, by which she manumitted the slave Mary and devised the slaves in controversy to the defendant; that defendant has since that time had possession of said slaves, claiming title under said devise adversely to the plaintiffs. The court further finds that the slaves Lewis, Mariah and Alexander were born of the woman Mary, mentioned in said trust deed, since 1882 and before the death of Mrs. Garnett. Under this state of facts the court declares the law to be, 1st, that the deed of January, 1821, conveyed the legal title in slaves to Henry Chandler, to be by him held in trust for the use of the grantor, for her natural life, and remainder over to the plaintiff Elizabeth; 2d, that the relinquishment executed by plaintiffs to said trustee, under the circumstances, is against the policy of the law and void; 3d, that the issue of the female slaves born after the execution of the trust deed and during the lifetime of Mrs. Garnett followed the condition of the mother, and that the title to said issue is in plaintiff Elizabeth by virtue of said trust deed, and not in defendant as devisee of Mrs. Garnett.”
    The court appointed a new trustee and by its decree vested the title to the slaves in him in trust for the sole and separate use of the plaintiff Elizabeth.

      Dryden and S. T. & A. D. Glover, for appellant.
    I. The relinquishment was to Mrs. Garnett. The relinquishment was not void; it was valid. If the relinquishment had been, in any just sense, a relinquishment to Chandler, the trustee, yet the court erred in declaring it to be void. At the worst it could have been but voidable. But suppose the sale in this case was by the plaintiff to Chandler, and not to Mrs. Garnett, and suppose it objectionable for that reason, the plaintiff can not recover upon his petition. He does not seek to set aside the sale nor for a reconveyance ; nor does the judgment of the court set aside the sale to Chandler.

      Lipscomb, for respondents.
    I. The purchase by Chandler while he yet hold the relation of trustee was fraudulent and void, and did not divest the title. (2 Johns. Ch. 252 and cases cited; 8 Wheat. 421; 1 A. K. Marsh. 532 ; 7 Monr. 232.) The deed of trust having been made in Kentucky, the laws of that state should govern in its construction.'
   Scott, Judge,

delivered the opinion of the court.

It is not easy to determine the ground on which the plaintiffs base their right to maintain this action. They ask for the appointment of a trustee to manage the trust property, but it does not appear by what means they now claim that property after the conveyance of it to the father of the defendant. If they found their claim on the nullity of the deed of relinquishment, on the ground that the property was the separate property of the wife and therefore could not be conveyed by the husband, their pretension can not be supported. This case occurred in Kentucky. All the facts which affect the rights of the parties transpired whilst they were residents of that state. The laws of that state then must ascertain and determine their rights. It seems to be well settled in Kentucky that a married woman has full power absolutely to dispose of personal property vested in her for her sole and separate use. (Hord v. Hord, 5 B. Mon. 83; Bell & Terry v. Kellar, 13 B. Mon. 381.) If a married woman in Kentucky can dispose of her separate estate as a feme sole, then, if the deed of her aunt created in her a separate estate, it was competent for her to dispose of it. The concurrent execution of the deed with the wife by the husband can not affect the validity of the transaction. If the property is not regarded as the separate estate of the wife, then it is equally well settled by the laws of Kentucky that the reversionary interest of the wife in slaves depending on the determination of a previous life vests on marriage in the husband, and may by him be absolutely disposed of. (Miller v. Miller, 1 J. J. Marsh. 169; Ewing v. Hancley, 4 Lit. 349; Merriwether v. Booker & wife, 5 Lit. 257-8; Pinkard v. Smith, Littel S. C. 331.) It will be borne in mind that the circumstances, out of which this controversy arises, transpired prior to 1845-6, when by a statute the marital rights of the husband in relation to the property of the wife underwent a change.

If the right to relief is placed upon the ground that Chandler, the trustee, could not purchase the trust property from the cestui que trust, the proposition is stated more broadly than the law seems to warrant. Lewin, in his work on trusts, says that “ when it is said that a trustee for sale may not purchase the trust property, the meaning must be understood to be that the trustee may not purchase from himself; for there is no rule that a trustee may not purchase from his cestui que trust. However, a purchase by the trustee from his cestui que trust is at all times a transaction of great nicety, and one which the courts will watch with the utmost diligence. The exception runs, it is said, so near the verge of the rule that it might as well be included under it.” (Lewin on Trusts, 379.) In Coles v. Tricothick, Lord Eldon said: “ I agree the cestui que trust may deal with his trustee so that the trustee may become the purchaser of the estate. But, though permitted, it is a transaction of great delicacy, and one which the court will watch with the utmost diligence ; so much that it is very hazardous for a trustee to engage in such a transaction. A trustee may purchase from the cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, that the cestui que trust intended the trustee should buy, and there is no fraud, no concealment, no advantage taken by the trustee of information acquired by him in the character of trustee. It is a difficult case to make out whenever it is contended that the exception prevails. (9 Vesey, 244.) It will rest with the trustee to establish in evidence that there was such a bona fide contract between them, as, according to the rule just referred to, will sustain the purchase in a court of equity. The coui’t, if satisfied as to this evidence, will support the transaction; but if any unfair advantage has been taken by the trustee by withholding information or other fraudulent dealing, the purchase will at once be set aside; and mere inadequacy of price will go a great way in the mind of the court to constitute such fraud, though the purchase will not necessarily be set aside on that account alone. (Hill on Trustees, 785-6.)

The law of Kentucky does not seem to controvert these views. In the case of Pugh’s heirs v. Bells’s heirs, 1 J. J. Marsh. 406, the court said, “ the alleged purchase from the defendants in error is entitled to no consideration. They were infants, and if they had not been the contract could not be enforced, because it was made with their trustee for a greatly inadequate consideration, and must have been made without a knowledge of their rights.” So in the case of Findley & wife v. Peterson’s Exec’r, 2 B. Mon. -, it was held that though a contract between parent and child in relation to property held by the father as natural guardian of the child will be subjected to a jealous scrutiny, yet where there is no extrinsic proof of fraud, mistake or improper influence, the contract will not be set aside.

As the legal estate in the trust slaves did, on the death of Chandler the trustee, devolve on his personal representative or representatives, being his executor or administrators, it would seem that they should be made parties to the suit, that in the event of a judgment for the plaintiffs the legal title may be subject to the control of the court.

The judgment will be reversed and the cause remanded, that the plaintiffs, if they see fit, may amend their petition and proceed in conformity to this opinion.

The other judges concur.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    The State, Respondent, v. Morrow, Appellant.

    X. The act of the general assembly of February 8, 1839 (see Sess. Acts, 1839, p. 311,) entitled “an act to amend ‘an act to incorporate the town of New Franklin,' approved January 16, 1833,” only repealed so much of the seventh section of the amended act as provided that the board of trustees of New Franklin should have power to raise by lottery a sum of money, not exceeding $15,000, for the construction of a railroad from the bank of the Missouri river to the town of New Franklin. The object of the act of 1839 was, not to overthrow the power to raise money by lottery, but to divert the application of the money, so to be raised, from the construction of a railroad to that of a macadamized road. The trustees of New Franklin were authorized, after the passage of the act of 1839, to conb-aet, as provided for in the third section of the act of February 26, 1835, (Sess. Acts, 1835, p. 56,) with any person to have said lottery drawn in any part of the United States, &e.
    2. The contract entered into in 1842 by the board of trustees of New Franklin with Gregory is within the protection of the provision of the constitution of the United States, that no state shall pass laws impairing the obligation of contracts.

      Appeal from St. Louis Criminal Court.

    David I. Morrow was indicted at the May term, 1855, of the St. Louis Criminal Court, under the “ act for the entire abolition of lotteries” (R. C. 1845, p. 723), for unlawfully selling, and unlawfully causing to be sold, lottery tickets. Upon the plea of not guilty the jury found a special verdict, which is as follows:
    “ The State v. D. I. Morrow. We, the jurors empannelled in this cause, do find, as to the issue joined, that in and by an act of the general assembly of the state of Missouri entitled ‘ an act to incorporate the town of New Franklin,’ approved January 16,1838 (see Sess. Acts, 1833, p. 35), it was enacted as follows: [Here follows the act of incorporation at large. The seventh section thereof is as follows: ‘ See. 7. Be it further enacted, that the board of trustees as aforesaid shall have power and authority to pass by-laws and ordinances, to prevent and remove nuisances ; to restrain or prohibit gambling; provide for licensing, regulating or restraining theatrical or other amusements within said town; to prevent or restrain the meeting of slaves; regulate and establish markets ; to raise by lottery a sum of money not exceeding fifteen thousand dollars for the construction of a railroad from the bank of the Missouri river to the town of New Franklin aforesaid ; to provide for the construction and completion of said road and the application of said fund to that specific object ; to fix by ordinance the tolls that shall be paid for the use of said road after the same shall have been constructed and finished, or for the transportation of goods, wares and merchandise upon said road, and collect the same; to procure by contract the land upon which said road is to be constructed, and to keep the said road in repair; to cause the streets in said town of New Franklin to be cleared and kept in repair by the inhabitants thereof; to impose fines and collect them for a failure to work or perform such duty as may be imposed by ordinance; to enact by-laws for the extinguishment of fire; to regulate the enclosure of lots within said town; and the municipal regulations thereof not contradictory to the laws of the land, as they shall deem necessary.’ Section 10 is as follows : Be it further enacted, that if it shall hereafter appear to the legislature of the state that the incorporation of the town of New Fx'anklin by this act has not answered the purposes for which it was created, by a misuse of the powers hereby granted, then and in that event the general assembly of the state of Missouri shall have power and authority by law to declare the same void, and all and every power hereby granted to said corporation shall from thenceforth cease and determine.’ ] And afterwards in and by another act of the general assembly of the state of Missouri, approved February 26, 1835, entitled ‘ an act supplementary to an act entitled an act to authorize a sum of money to be raised by lottery to be given to the Sisters of Charity in the city of St. Louis for the use of the hospital over which they now or may hereafter have the control and management,’
      (see Sess. Acts, 1835, p. 56) it was, among other things, enacted as follows : Be it enacted, &c., as follows : § 1. The third and fourth sections, and the- proviso to the second section of the act to which this is a supplement, are repealed. § 2. A majority of the commissioners of said lottery shall at all times be authorized to perform any of the duties of their appointment., § 3. The said commissioners are authorized to contract with any person to have said lottery drawn, in any part of the United States, on such terms as they shall consider most advantageous, and shall have the same privileges as to the sale of tickets in this state as heretofore, until the amount authorized in said act be raised. § 4. Said commissioners shall take sufficient bond and good security of the person with whom they contract conditioned for the payment of the money and faithful performance of the contract. § 5. The commissioners may authorize the person with whom they contract to sign the tickets and perform all other acts necessary to effect the object of the act alluded to. § 6. The board of trustees of the town of New Franklin may exercise the same powers as are conferred by the second, third, fourth and fifth sections of this act in relation to the authority they now have to raise by lottery a sum of money not exceeding fifteen thousand dollars for the construction of a railroad from the bank of the Missouri river to the town of New Franklin aforesaid. This act to take effect from and after its passage.’

      “ And afterwards, in and by another act of the general assembly of said state, approved February 8th, 1839, entitled an act to amend ‘ an act to incorporate the town of New Franklin,’ approved January 16, 1823, (see Sess. Acts, 1839, p. 311,) it was, among other things, enacted as follows: ‘ Be it enacted, Sfc. § 1. So much of the seventh section of the act to which this is amendatory as provides that the board of trustees of New Franklin shall have power to raise by lottery a sum not exceeding fifteen thousand dollars for the construction of a railroad from the bank of the Missouri river to the town of New Franklin is hereby repealed. § 2. The board of trustees of said town are hereby authorized to apply the funds already raised, or which shall be raised before this act shall take effect, to the construction of a macadamized road instead of a railroad, at their discretion, from the Missouri river to the town of New Franklin. § 3. The power of said board of trustees to raise money by lottery shall cease after the taking effect of this act; provided, that, when the said board of trustees shall have expended and applied the whole amount of funds raised at the time of the taking effect of this act, they shall report to the governor that fact, with the condition of the improvements, how the money has been applied, how far the work has been executed, and how much money, if any, will be required to complete the same; and upon such facts being reported the governor may, by proclamation, authorize the board of trustees to raise by lottery such amount as may be necessary to complete the same; provided that the same shall not exceed the sum authorized to be raised by the act to which this is an amendment. § 4. When such macadamized road shall be completed, said board of trustees shall have all the powers anfl privileges in relation to the same that are granted to them over the railroad mentioned in the act to which this is amendatory. This act shall take effect from the first day of March next.’

      “ And the jurors aforesaid, upon their oath aforesaid, do further find that the trustees in said last mentioned act named did expend. and apply the whole amount of funds raised at the time of the taking effect of said act, and did report to the governor that fact, with the condition of the improvements, how the money had been applied, and how far the work had been executed, and how much money would be required to complete the same, according to the tenor and effect, true intent and meaning of said last mentioned act, which report was made in form aforesaid to the governor of the state of Missouri on the seventeenth day of November, in the year 1840 ; and thereupon the said governor did, on the 21st day of November, in the year last aforesaid, issue his proclamation in the words and figures following:
    “ ‘ A proclamation by the governor of the state of Missouri: Whereas the trustees of the town of New Eranklin, Howard county, have this day made to me the report required by the third article of the act of the general assembly of the state of Missouri, approved February 8, 1839, entitled an act to amend an act to incorporate the town of 'New Franklin, approved January 16,1836 Now, therefore, in pursuance of the provisions of said act, I, Lilburn W. Boggs, governor of the state of Missouri, do hereby authorize the board of trustees of said town of New Franklin to raise by lottery the sum of fifteen thousand dollars, which is the amount reported to me by said board as necessary to complete the road contemplated by the act aforesaid. In testimony whereof, I have hereunto set my hand, and cause to be affixed the great seal of the state of Missouri. Done at the City of Jefferson this 17th day of November, in the year 1840 ; of the independence of the United States the sixty-fifth ; and of this state the twenty-first. [Signed] By the governor, Lilburn W. Boggs. November 21st, 1840. James L. Minor, secretary of state.’
    “ And the jurors aforesaid, upon their oath aforesaid, do further find that on the first day of June, in the year 1842, articles of agreement were made and entered into by the trustees and citizens of the town of New Franklin of the first part, and Walter Gregory of the second part, in the words and figures following: Articles of agreement made this first day of June, 1842, between the trustees and citizens of the town of New Franklin, Missouri, of the first part, and Walter Gregory, of the city of Cincinnati, and state of Ohio, of the second part, witnesseth: That, whereas by a certain act of the legislature of the state of Missouri, approved January 16, 1833, entitled an act to incorporate the town of New Franklin,’ power is given to the trustees of said town, in section seventh of said act, to raise the sum of fifteen thousand dollars by lottery for the construction of a railroad to said town from the bank of the Missouri river ; and whereas by a certain other act of the legislature of Missouri, approved February 8th, 1839, entitled an act for the benefit of the town of New Franklin’ [?], the said section seven of the act of Jan-nary 16, 1833, is declared repealed ; but in section third of the act of 1839 the governor of the state of Missouri is authorized to issue his proclamation upon statement of facts being laid before him by said trustees of the moneys received and paid out by them on account of said act of 1833, giving power to said trustees to raise by lottery the amount required to complete the works authorized by said act of 1839, as per section second of said act; and whereas the governor of Missouri did issue his proclamation, dated November 21st, 1840, in the words following, to-wit: [here follows proclamation as above] ; and whereas said parties of the first part, under the powers granted them by said proclamation, did contract with one Daniel Gray and Joseph F. Eichholtz to raise for them, the said trustees, the said sum of fifteen thousand dollars, which agreement has been subsequently assigned to the party of the second part by the said Daniel Gray and Joseph F. Eichholtz; and all the parties aforesaid being desirous to make a more perfect agreement which do hereby condition [sic] that the party of the second part [?] shall and he does hereby surrender to him all their claims by virtue of said agreement, which is hereby declared by the respective parties revoked and of no effect from this date, provided that all moneys paid to said trustees by said Gray and Eichholtz, on account of said agreement, shall be credited to the party of the second part and acknowledged as a part of the sum of fifteen thousand dollars authorized to be raised by them, as paid by him under the present contract as follows: [&c.] Now this indenture witnesseth, that the said parties of the first part, for and in consideration of the sum of money hereinafter mentioned to be paid by the party of the second part, do by these presents agree to sell, dispose, transfer and set over to the said party of the second part the said lottery and all right to control the same, and appoint him the sole manager and conductor of the said lottery or lotteries for the benefit of the town of New Franklin, under the powers above recited, to draw such scheme or schemes as from time to time he shall think proper, or to decide any class or classes by tbe drawing of any other lottery' or lotteries within the United States as he may deem proper, or he may have the power at any time he thinks proper to consolidate said lottery with any other lottery of which he may be the manager. And the said party of the second part does hereby agree to assume the management of said lottery for the purpose of raising the sum of fifteen thousand dollars as aforesaid from and after the first day of June, 1842, and to pay toward the said amount in instalments as follows, viz: $250 on the first day of January, 1843 ; $250 on the first day of June, 1843, and so on, paying the said sum of $250 semi-annually until the aforesaid sum of $15,000 is fully raised to the said parties of the first part, or to any person authorized by them to recover the same, provided that the sum of $1000, heretofore raised by said parties of the first part of Gray and Eichholtz, and $100 received from Jacob Hawthorn previous to this agreement, shall be considered as payment in order as made on the above instalment by said party of the second part; and the said party of the second part does further agree to pay all expenses and costs and charges attending the management of said lottery, and to sustain all hazards, risks, losses and expenses whatever, and shall pay all prizes drawn or decided in said lottery, less the discount of twenty per cent., if demanded within twelve months after the drawing.of any class thereof; and the respective parties hereby agree that if the said party of the second part does not pay the respective instalments as aforesaid within forty days after each shall become due, then the parties of the first part may by due notice declare this contract null and void, and require the delivery of the same forthwith from the party of the second part, who shall not have the power to draw any more classes of lotteries under this contract after the issuing and service of said notice. And the respective parties further agree that the party of the se-cpnd part shall not be bound by this agreement in the event of any interference by the legislature, judiciary or any other power, so that he can not conduct the business; in which case payments to be made by him to time of such interference only; and the said party of the second part shall have power -under this contract to assign the same to any competent person, or to abandon it by giving ninety days’ notice and paying up all instalments and charges to date of said assignment or abandonment. In witness whereof the respective parties have hereunto set their hands and seals this first day of June, 1842. [Signed] James H. Benson, chairman, (seal,) Robert Coleman (seal), J. W. Redman (seal), H. Sliugert (seal), Walter Gregory (seal). Attest: J. Hawthorne’ ; which agreement, on the day of the date thereof, was signed and sealed by the trustees of the town of New Frank-lain and the said Walter Gregory, and was afterwards on the eighth day of June, in the year 1842, accepted and approved by the board of trustees at a meeting of said board on the day and year last aforesaid.
    “ And the jurors aforesaid do further find that the said Walter Gregory did execute and deliver to the said board of trustees a bond in the sum of §30,000 with sufficient security conditioned for the payment of the money and the faithful performance of the contract, which bond so made and executed was then and there approved, received and accepted by the said board of trustees. And the jurors aforesaid upon, &c., do further find that the said Walter Gregory, having taken upon himself the management of the said lottery under and by virtue of the contract aforesaid, did devise a scheme of said lottery to be drawn, and did cause tickets to be prepared in said scheme for sale, and constitute and appoint David I. Morrow agent to sell and dispose of said tickets as such agent. And the jurors, upon, &c., do find that the said David I. Morrow, as agent of the said Walther Gregory in that behalf duly authorized, did on the first day of January, in the year of our Lord 1855, sell and deliver one ticket in the said scheme so devised and prepared by the said Walter Gregory as charged in the indictment; and that at the time of the said sale there had not been raised by lottery for the purposes aforesaid, under and by virtue of said acts of assembly, proclamation and contracts, the sum of money thereby authorized to be raised. But whether upon the facts aforesaid, in form aforesaid found, the said David I. Morrow is guilty in manner and form as charged in the indictment, the jurors aforesaid are not advised, and pray the judgment of the court herein; and if the court shall be of opinion upon the facts aforesaid that the defendant is guilty in manner and form as charged, the jurors aforesaid do say that he is guilty, and assess the fine at the sum of $1000 ; but if the court shall be of opinion upon the facts aforesaid that the defendant is not guilty, the jurors aforesaid do say that he is not guilty as charged in the indictment.”
    Upon motion of the circuit attorney judgment was rendered against the defendant upon this special verdict. The defendant moved the court to set aside this judgment.

      U. Wright, for appellant.
    I. The only question arising upon the record in this case has been twice decided by this court. (State v. Hawthorn, 9 Mo. 389 ; Morrow v. The State, 12 Mo. 279.) In the latter case the parties were the same now before the court, and the facts identical with those presented by the present record.
    II. If the question were yet to be decided on general principles and authority, the decision can be but one way. (State of Delaware v. Phalen & Pain, 3 Harring. 752.)

      H. A. Clover, (circuit attorney,) for the State.
    I. The facts of this case do not bring it within the authority of the case of the State v. Hawthorn, 9 Mo. 390, and the authority of that case is- not questioned. The contract with Gregory was null and void. By the act of 1839 the seventh section of the act of 1833 was repealed as far as it provided that the board of trustees of New Franklin should have power to raise by lottery a sum of money not exceeding $15,000 for the construction of a railroad from the bank of the Missouri -river to the town of New Franklin. With the destruction of the principal the incident fell. At this time there were no vested rights in third persons which could not be impaired by the act of the legislature then in force declaring that all lotteries, after the 1st day of January, 1836, should be utterly and entirely abolished. The legislature might repeal the act of 1833 without violating any constitutional provision. The power to make contracts created by the act of 1835 had not been executed at the time of the passage of the act of 1839. By the act of 1839 the power given by the act of 1833 to raise money by lottery, and the incident to that power to contract with other parties to have said lottery drawn in the act of 1835, was repealed and a new authority granted. This was the state of legislation at the date of the contract with Gregory. The act of 1833, so far as the power to raise money by lottery, is expressly repealed, and with it fell the incidental power given by the act of 1835. The case of Hawthorn is essentially different from the case at bar. In that case a contract was made at a time when the commissioners might lawfully contract, and being executed could not be impaired by any legislation enacted. By the act of 1839 the board of trustees of New Franklin, under the proclamation of the governor, were authorized to raise by lottery 115,000, but they could not delegate their power to another as by the act of 1835. All authority to raise any money by lottery dates from 1839, all previously existing powers having been repealed. No power to delegate a power arising in 1839 can flow from an act passed in 1835. The power to delegate does not arise from the subject matter of the grant. The proclamation follows the statute authority. It authorizes the board of trustees to raise the $15,000 by lottery, not to farm by contract. Assuming that the trustees may contract, for what may they contract ? What is there to prevent the trustees from agreeing to receive one dollar per year and thus legalize the lottery for a period of fifteen thousand years ? The acts should be construed strictly. Here the whole franchise is transferred, not, as in Hawthorn’s case, the right to the sole management. I have, merely for the purpose of argument, assumed the power in the board to contract with other parties. I deny their right so to do. They have power to raise by lottery a sum of money, but this does not gire them the privilege of raising the money in any other way than by lottery ; certainly not by selling the right.

         This case was decided at the March term, 1857, of Supreme Court.

       For this act see Sess. Acts, 1833, p. 82.

   Scott, Judge,

delivered the opinion of the court.

The act, approved February 8th, 1839, entitled “ An act to amend An act to incorporate the town of New Franklin,’ approved January 16th, 1833,” only repeals so much of the seventh section of the amended act as provides that the board of trustees of New Franklin shall have power to raise by lottery a sum not exceeding fifteen thousand dollars for the construction of a railroad from the bank of the Missouri river to the town of New Franklin. (Sess. Acts, 1839, p. 311.) The repeal of one clause of a section specifically raises a clear implication that nothing else was intended. The act of 1839 is by its title and its terms an amendatory one. It makes no reference whatever to the act of February 26, 1835, (2 Terr. Laws, p. 476,) which authorizes the board of trustees of the town of New Franklin to contract with any person to have said lottery drawn in any part of the United States on such terms as they shall consider most advantageous. When therefore the act of 1839 authorizes the raising of $15,000 by lottery, it must bo intended that it was to be done in the manner prescribed by the laws then in force in relation to the subject. The object of the act of 1839 was only to divert the application of the sum authorized to be raised, to cause to be made a macadamized road instead of a railroad. The reason which existed for authorizing a contract to have the lottery drawn in any part of the United States in relation to the sum to be raised under one act was equally applicable to the sum to be raised under the other. The general assembly in 1839, looking back at the legislation on the subject of the New Franklin lottery, seems to have taken special care only to change the purpose to which the money, authorized to be raised, was to be applied. This particular designation of the object to be accomplished shows that nothing else was designed. A repeal of statutes by implication is not favored in the law. These laws all being in relation to the same subject, in pwi materia, must be so construed as to make them all stand.

This case then falls within the principle of that of the case of The State v. Hawthorn, 9 Mo. 389. The terms employed in transferring the lottery of New Franklin are the same as those used in the contract in the case of Hawthorn just mentioned, and no point was made on them in that case. The judgment there stands on the assumption that the contract was a legal one.

The general assembly having by a late law ratified the contract made by the trustees for the disposition of the lottery, this can not be a matter of much importance. The other judges concurring, the judgment will be reversed.


author: Napton, Judge,

text:
    Walther, Plaintiff in Error, v. Warner, et al., Defendants in Error.
    1. Quei-e, -where the petition is in the ordinary form of a petition in trespass, not concluding contra formarn statuti, and not containing a prayer for treble damages, whether a judgment for treble damages under the “ act to prevent certain trespasses” (R. C. 1815) could be supported.
    2. Where the court in which the cause is tried refuses to treble the damages, the supreme court will not review this action unless the evidence bearing upon the question of “probable cause” be preserved.
    3. The burden of showing “ probable cause” is on the defendant; but it is not necessary that he should set it up in his answer.

      Error to Cole Circuit Cou/rt.

    It is deemed unnecessary to set forth the facts more fully than they are set forth in the opinion of the court.
    Parsons, for plaintiff in error.
    I. It was the duty of the court and not of the jury to treble the damages. (See George v. Rook, 7 Mo. 149 ; Lowe & Forsyth v. Harrison, 8 Mo. 352 ; 8 Johns. 347 ; 1 Cow. 175 ; 25 Wend. 422; Warren v. Doolittle, 5 Cow. 684.)

      II. There is nothing in the pleadings or evidence setting up any defence on the ground that defendants had probable cause to believe that the land on which the alleged trespasses were committed and the things injured and carried away and destroyed were their own. This defence should have been pleaded in order to make it available. The defendants’ first instruction is neither within the spirit nor the letter of the statute. It asks the court to tell the jury that if defendants had probable cause to believe that those under whom they were contractors had a legal right to do what they have caused to be done, Ac. The statute is that they must have had probable cause to believe the land was their own.

    III. The petition is drawn substantially upon the statute, with all the allegations necessary to bring the offence within its terms. The petition does not charge the offences to have been committed against the form of the statute, nor is any reference in terms made to the statute ; neither was it necessary to do so. This action was brought under the practice act of 1849, by virtue of which forms were abolished and every action was one upon the case. ' (Sess. Acts, 1849, p. 73 ; 6 How. Pr. R. 211; 12 Wend. 72; 8 How. Prac. R. 472.) The statute has been pleaded in this case by stating the facts which bring the case within it. (Gould’s Pleading, 56 ; 19 Mo. 420.)
    IY. It is no objection that the petition demands judgment for but one thousand and thirty dollars. (Sess. Acts, 1849, p. 92, art. 17, § 3.)
    Y. The only error committed was in refusing to render judgment for treble the damages found by the jury. Plaintiff in error asks that the judgment of the court below may be affirmed and that judgment for treble damages may be rendered for the plaintiff in error.

      Gardenhire, for defendants in error.
    I. The plaintiff’s action is not based upon the statute. It makes no reference whatever to the staute, nor does it demand the relief to which the plaintiff now supposes himself entitled. He asks judgment for $1030 only. (See R. C. 1855, p. 1229, § 3; 1 Cbitt. PL 3T2-8, 374; 2 Chitt. PI. 494-5, 503 ; 1 Gall. 259; 5 Greenl. R. 78.)
    II. If the action had been based upon the statute the question of “ probable cause” ought to have been submitted to the jury. It is a question of fact and not of law. The plaintiff himself prevented such submission and does not and can not now complain of it.
    III. If the question of “ probable cause” was properly submitted to the court, its decision ought not to be disturbed. It is abundantly shown that defendants had probable cause to believe that the property injured was their own, or belonged to those who employed them, for the purpose of constructing the road.
   Napton, Judge,

delivered the opinion of the court.

The only point in this case is made upon the refusal of the circuit court to treble the damages found by the jury. The petition set forth that the defendant, without leave, and wrongfully, entered Upon a certain tract of land, which is described, of which the plaintiff was owner, and cut down and destroyed timber growing on it of the value of five hundred dollars, and destroyed rails of the value of thirty dollars, and dug up and carried away clay, soil, &c., to the value of five hundred dollars. The petitioner averred that the land upon which these trespasses were committed was not the property of the defendants, and that they had no right or interest in the trees, rails, soil, Ac., which had been taken or injured by reason of these trespasses. The plaintiff concluded by stating himself entitled to damages to the amount of one thousand and thirty dollars, and for this sum he asked judgment.

The jury found a verdict for the plaintiff and assessed his damages at seven hundred dollars, that being ascertained by them to be the aggregate value of the property destroyed or used by the defendants. The plaintiff moved for a judgment for treble this amount in accordance with the statute allowing this penalty for certain trespasses described in it; but the court refused to treble the damages, and this is complained of as error here.

The act entitled “ An act to prevent certain trepasses” (R. C. 1845, p. 1069) provides that if any person shall cut down, injure or destroy trees growing on land belonging to another, or shall dig up mineral, soil, &c., or cut down and carry away grain, &c., in which trees, grain, soil, &c., he has no interest or right, and which are standing or growing on land not his own, he shall pay to the party injured treble the value of the property taken or injured. The third section of this act provides that this penalty may be recovered by an action of trespass or debt founded on this statute, or by indictment ; but when indictment is resorted to the penalties go to the county treasury.

This petition makes no allusion whatever to this statute. It describes a trespass which is within its meaning and almost within its letter, but a trespass which was still the subject of an action at common law, as well since as before the passage of the statute. Neither in the body of the petition nor in its conclusion is any reference m'ade to the statute, nor does the plaintiff any where say, directly or indirectly, that he seeks a recovery of the penalty which this statute has allowed. On the contrary, he avers that his damages amount to one thousand and thirty dollars, and for- this sum, and not for treble this sum, he asks judgment.

It is laid down in Chitty’s Pleadings (1 Chitt. Pl. p. 405) “ that where the act or omission is not an offence at common law, it is necessary in all cases to conclude against the form of the statute or statutes, or to show at least that the declaration is founded on the statute by introducing the words de plácito transgressionis et contemptus contra formam star tuti.” And this author adds that the omission of the words “ against the form of the statute or statutes,” when proper to be inserted, is fatal, even after verdict. In the various forms of proceedings on penal statutes to be found in the second volume of this writer (2 Chitt. Pl. p. 494-5) it will be seen that they not only conclude against the form of the statute, but particularly refer to the statute in the body of the declaration, and invariably demand whatever penalty is given by the statute.

There can be no doubt that the proceeding in this case comes within the rule stated by Chitty ; but as the suit was instituted since the adoption of our code of practice of 1849, it is urged that so much nicety is not any longer necessary or proper.

The general scope and object of this new code is certainly to do away with mere formalities, but at the same time it is very far from the purpose of this law to encourage or tolerate general, indefinite and vague allegations. The spirit of this code is to make pleadings more special than before. The plaintiff is required to state his cause of action and the relief to which he supposes himself entitled, so that the adverse party and the court may know with certainty what he complains of and what relief he wants. What is there in the complaint in this case which can authorize the inference that the plaintiff is proceeding on a statute — that he is asking for a penalty ? How could it be inferred that he has any other object than to recover the actual value of the property he has lost and any damages which the jury might choose to give him for the entry upon his close, and smart money for both if the circumstances should seem to warrant. This is the relief which he asks for in his petition. He says the actual injury which he has sustained amounts in value to one thousand and thirty dollars, and he asks a judgment for this amount, and not for three times this sum.

It is suggested that as the new code requires the plaintiff to swear to the amount of his damages, some difficulties might be thrown in the way of men of tender consciences by requiring them, when instituting suits under the statute, to swear to the treble damages. But there is no difficulty in this case. The plaintiff can state and swear to what he believes to bo the extent of his injury, and can then ask for a judgment for three times that sum by virtue of the statute.

The question in this case is not whether a judgment for treble damages could have been supported by such a petition. The question is whether this court will reverse the judgment of the circuit court for single damages, and enter up a judgment for treble damages here. In examining the question we have referred to the vague and unsatisfactory form of the petition, showing that it is at least questionable whether the circuit court would have been warranted in trebling the damages under any condition of facts proved ; but there are other considerations which must affect the action of this court when called upon to do what the circuit court has declined to do. There is nothing preserved on the record from which this court can form any plausible conjecture as to the real merits of this case. Whether the circuit court acted correctly or not in refusing to treble the damages, is a matter which of course must depend upon the evidence disclosed at the trial, and none of that has been preserved. The fourth section of the statute provides, that if it appear upon the the trial that the defendant had probable cause to believe that the land on which the trespass is committed, or the thing taken destroyed or carried away, was his own, single damages only shall be recovered. Under this provision the practice in this state has been for the jury to assess the actual value of the property taken or injured, and for the court to treble the damages. All the cases decided by this court recognize this practice, and it is unnecessary to cite them. This practice must imply that the court is the sole judge both of the fact and law in reference to the question of probable cause; or, if the facts are submitted to the jury, that they must find a special verdict. The latter has never, I believe, been the practice in this state, but the whole testimony has been submitted to the jury, and, upon a verdict for the plaintiff for single damages, the court, having heard the testimony submitted to the jury, has given judgment for treble or single damages, as the facts in evidence seem to warrant. In other states the practice is different, and the question of probable cause is submitted to the jury under instructions, just as any other issue in the case. Whether the practice here be right or wrong is of no consequence in the determination of this case, since the circuit court, at the instance of the plaintiff, withdrew from the jury the whole question of probable cause and treble damages. The plaintiff therefore can not allege as error that which was done at his own request and by his own instructions.

It is manifest that if this court is desired to review the action of the circuit court upon the question of probable cause and treble damages, the evidence upon which that court acted must be preserved, or the facts found either by a special verdict of the jury or by the court. The whole subject was left to the court in this case upon such evidence as had been submitted to the jury, or upon such as was subsequently submitted to the court. It would seem reasonable that the party complaining of error should show affirmatively from the record that error had been committed. Undoubtedly, where the action is founded on the statute, the burthen of showing probable cause for the trespass is on the defendant; but it is not necessary that he should set it up in his plea or answer. That evidence was given in this case with a view to this defence is apparent from the instructions. Whether the evidence make out a case within the fourth section or not we have no means of conjecturing. It was the business of the party complaining to show this. We should be acting altogether in the dark to undertake to treble the damages here.

The other judges concurring, the judgment is affirmed.


author: Richardson, Judge,

text:
    Collins et al., Plaintiffs in Error, v. Hough, Defendant in Error.

    1. In suits for the possession of personal property, under article 8 of the practice act of 1819 (Sess. Acts, 1849, p. 82), the provisions of the replevin act of 1845 (R. C. 1845, p. 922) are applicable so far as it may be necessary to resort to them to prevent a failure of justice; the provisions of said article govern as far as they are applicable.

      2. Where, in an action under the 8th article of the practice act of 1849, the plaintiff gives a return bond and receives the property sued for, and fails to prosecute the action, an assessment of the value of the property and damages for its detention may he made, and judgment against the plaintiff rendered, as directed in sections 8 and 9 of the replevin act of 1845.
    3. Summary statutory proceedings against the securities in the return bond must he had under section 9 of the 8th article of the practice act of 1849.
    4. Double damages for the detention of the property by the plaintiff can not be given against his sureties.

      Error to Henry Circuit Court.

    The facts are sufficiently set forth in the opinion of the court.

      Troxell, for plaintiffs in error.
    I. The bond on which the motion and judgment complained of were founded was given under and in pursuance of the practice act of 1849; and upon the failure of Collins to prosecute his said original suit for the recovery of said slave with effect, and to return said slave, and pay the damages occasioned by the taking and detaining thereof, defendant might perhaps have brought a suit upon the bond against the principal and securities in that bond ; but the defendant having elected to proceed by motion under the statute, he was bound to give notice to the obligors in the bond.
    II. There was no authority for doubling the damages assessed by the jury.
    III. It was error in the court below to proceed as it did without notice, and no motion by the obligors in the bond to set aside such proceedings need have been made.
    IY. The act of 1845 entitled “ An act regulating the action of replevin,” was, as is supposed, repealed by the practice act of 1849; but, however that may be, the judgment of the court below was nevertheless erroneous; because, conceding that the above act of 1845 was not repealed, then the remedy given by the practice act of 1849 is a cumulative one, and the suit in which the bond in question originated was properly brought under the act of 1849. It is therefore immaterial whether the act of 1845 was or was not in force at the time of the rendition of the judgment of the court below. The proceedings of Collins for the specific recovery of the slave Paulina were prosecuted under the act of 1849. The bond in. question was executed under that act, and the defendant was bound either to bring suit upon that bond op» to proceed by notice and motion thereon under the act of 1849. The defendant can not now invoke the aid of the act of 1845.

      Wright and Ryland, for defendant in error.
    I. No notice to the securities was required, and judgment for double damages was rightly rendered. Judgment was not rendered on the bond, and the statute only required notice to the defendant when this was done.
    II. The provisions of the statute of 1848 on replevin, which related to the rights of defendants when plaintiff failed to prosecute his suit with effect, were not repealed by the act of 1849. They have been incorporated into the revision of 1855, except as to double damages. Judgment might still be taken either for the possession of the property or for the value, and in either case for damages. (1 Whitaker’s Prac. 238; 3 Sandf. 614.) Those sections of the statute of 1848, under which this judgment was rendered, were consistent with the code of 1849, and consequently continued in force.
    If this court should hold that the court erred in rendering judgment for double damages, we remit the double damages, and ask this court to render judgment for single damages.

       Napton, Judge, having been of counsel, did not sit at the hearing of this cause.

   Richardson, Judge,

delivered the opinion of the court.

Collins commenced an action in 1852 against Hough under the 8th article (claim and delivery of personal property) of the practice act of 1849, to recover the possession of a negro woman. Upon filing the necessary affidavit an order was made on the defendant requiring him to deliver the slave to the sheriff, and thereupon the plaintiff executed the bond required by the third section and received the possession of the slave. At the November term, 1855, the plaintiff failed to appear and prosecute the suit, and thereupon a jury was called, who assessed the value of the slave at five hundred dollars, and the damages for the taking and detention of her at one hundred and eighty dollars, upon which verdict the court rendered judgment against the plaintiff and his securities, that they return the slave to the defendant or pay the said sum of five hundred dollars, and that the defendant recover of the plaintiff and his securities double the damages assessed by the jury. This judgment was rendered without notice to the sureties.

The question presented here is, whether, as against the sureties, the 9th section of the 8th article of the act of 1849 provides the exclusive statutory remedy, or is only cumulative and concurrent with the 9th section of the replevin act of 1845. It is very evident that the 8th article does not furnish the machinery necessary to execute itself. It fails to provide the form or character of the judgment, or to indicate how the action shall proceed, and the whole remedy contemplated by the act would fail without the authority to borrow from another statute the means to perfect it. The act of 1849 assumed that contingencies would arise for which it did not provide, and therefore permitted a resort to the former system of practice. The 4th section of the 30th article declares that “ all statutory provisions inconsistent with this act are repealed,” but provides in another clause that if a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, can not be had under this act, the practice now in use may be adopted so far as may be necessary to prevent a failure of justice.”

As a general rule the plaintiff may dismiss his suit at any time before the cause is submitted to the court or jury, but he can not retreat at pleasure in an action when he has obtained from the defendant the possession of the property claimed; and therefore, as to the plaintiff, the 8th and 9th sections of the act of 1845 should be employed as a necessary means of carrying out proceedings initiated under the act of 1849, and, as an incident to the judgment, the 10th, lltli and 12th sections of the old law should also be considered in force. But the act of 1849, as far as it goes, must control, and the former practice can only be brought to its aid “ so far as may be necessary to prevent a failure of justice.”

The undertaking of the sureties can not be extended beyond the conditions of the bond prescribed by the third section. They do not engage to pay any penalties in the nature of double damages or otherwise, but they only undertake that the plaintiff will prosecute the action, return the property to the defendant, if return thereof be adjudged, and pay such sum as may, for any cause growing out of the order in the cause, be recovered against the plaintiff; and as the ninth section of the act of 1849 presents a remedy for a breach of the bond, it is the exclusive summary remedy, and is the only remedy against the sureties, except the common law action on the bond, which exists without the statute.

The subject is embarrassing and our conclusion is stated with hesitation; for whilst it is manifest that some portion of the old system was continued in force, it is difficult to say how much of it must be incorporated in the new. It is presumed, however, that but few questions like this can arise, for the revised act of 1855 undertakes to cover the whole ground and to present a complete system.

Judge Scott concurring,

the judgment will be reversed and the cause remanded.


text:
    Birch, Defendant in Error, v. Benton, Plaintiff in Error.
    1. Slanderous words charging a man with haying whipped his wife are not actionable per se; special damage must be alleged and proved.
    2. Words imputing an indictable offence for which corporal punishment may be inflicted, as the immediate punishment, and not as the consequence of a failure to satisfy a pecuniary penalty, are aetionable in themselves.
    3. Under the revised code of 1845, “ to publish maliciously and falsely, in any manner whatever, that any person has been guilty of fornication and adultery,” was actionable.

      i. The office of an innuendo is to explain the meaning of the defendant in using the slanderous words; and this meaning as averred hy an innuendo is a question of fact to he decided hy the jury.
    5. The question whether there is a fatal variance between the allegations of a petition and the proof is a question for the court.
    6. In an action of slander the slanderous words must he proved as charged; proof of equivalent words is not sufficient.

      Error to Henry Circuit Court.

      Ryland and Johnson, for plaintiff in error.
    I. To say of a man that he whipped his wife is not actionable. The first and third counts contain words making this charge alone. Defendant’s fourth instruction should have been given.
    II. The words as charged must be proved, or a sufficient number of them to contain the charge must be proved. It is not sufficient to prove equivalent words. The court ought to have excluded Burns’ deposition. His statement does not contain the words as charged in the fourth count. (Dryden v. Berry, T Mo. 824.) It was the duty of the court to decide upon the subject of the variance between the words offered in proof and the words charged. (Ib.)
    III. The innuendo is no part of the words charged, and should not have been given to the jury as such a part of the words charged.
    IY. The seventh instruction for defendant should have been given. There is no pretence that Burns proved the words as laid in the fourth count. Where words are charged to have been spoken which are not actionable, but are coupled with other words that are actionable, it is not sufficient to prove the words not actionable. It is manifest that the court below supposed it to be actionable to say of a man that he had whipped his wife.
    Y. The court ought to have given the twelfth instruction asked for by defendant. There was no mayhem proved ; not one word of evidence on this charge. The words which by innuendo were alleged to impute adultery with the negro woman were not proved. A similar charge was proved, but not in the words as laid in the petition, nor in the substance of the words.

      Sheley, for defendant in error.
    I. The court committed no error in refusing to exclude from the jury the evidence of Burns, he having proved the substance of the words as laid in the petition. (Herme v. Arrowsmith, 1 Bibb, 166; 2 Gilm. 720; Cooper v. Marlow, 3 Mo. 134; Estes v. Autrolus, 1 Mo. 140; David v. Winters, 20 Mo. 361; Hudson v. Garner, 22 Mo. 423.)
    II. The court committed no error in permitting plaintiff to read the deposition of Phillips ; it was properly rebutting testimony to Gov. King’s deposition, and even if properly evidence in chief, yet it was purely within the discretion of the court, and this court will not revise that discretion. (Rucker v. Eddings, 7 Mo. 115.)
    III. The instructions given by the court upon its own motion embraced all the law of the case, and the instructions asked by defendant were very properly refused. (Masten v. Panning, 19 Mo. 302.)
    IY. The plaintiff had a right to read a part of the deposition of Terrill, and the court committed no error in permitting him to do so. The defendant has no right to complain, as he afterwards read the remaining portions of the deposition to the jury. (Hill v. Haile et al. 13 Mo. 612.)
    Y. The deposition of McKee was properly read to the jury. It is competent to prove the repetition of the words after suit is brought. (Williams v. Harrison, 3 Mo. 240.)
   Richardson, Judge,

delivered the opinion of the court.

The amended petition on which the case was tried is as follows: “ Plaintiff states that on the 16th day of July, 1849, at Clay county, in the state of Missouri, the defendant (who is not a resident of said state) spoke the following false and slanderous words concerning the plaintiff: ‘ I wonder when the damned scoundrel whipped his wife last ?’ meaning thereby to charge, and being understood by those who heard him to charge, that plaintiff had been and was guilty of the dishonoring crime of an assault and battery on his wife. Plaintiff further states that on the fourth day of August, 1849, at the county of Platte, in the state of Missouri, the defendant (who is not a resident of said state) spoke in the presence and hearing of divers persons the following false and slanderous words concerning the plaintiff — that is to say, ‘ He has whipped his wife ; he has whipped her again since he denied it at Liberty ; he knocked out three of her teethmeaning thereby to charge that the plaintiff had been and was guilty óf the crime of mayhem. And at the time and place aforesaid, and in the hearing of the persons aforesaid, the defendant spoke of and concerning the plaintiff these other false and slanderous words — that is to say, ‘ She had to fly to a neighbor’s house, where she exhibited the blood or marks of his violence. He whipped his wife until the blood ran down to her heels meaning thereby to charge plaintiff with the crime of assault and battery on his wife. And at the time and place aforesaid, in the hearing of divers persons, the defendant (who is not a resident of the state of Missouri) spoke the following false and slanderous words concerning the plaintiff— that is to say, ‘The Platte City clique have brought Jim Birch — that cur dog — yes, that son of a cur — yes, a damned sheep-killing dog — to speak against me ; since I was at Liberty he has whipped his wife, and she had went to a neighbor’s house with her teeth knocked out and with blood on her; all for keeping his own negro wench;’ meaning thereby to charge, and being understood by those persons who heard him to charge, plaintiff with the scandalous crime of adultery with a negro woman ; by which plaintiff says he is damaged,” &c.

The only evidence offerejd by the plaintiff for the purpose of proving the speaking of the words, was the testimony of James N. Burns and John Terrill. The material part of Mr. Burns’ statement is as follows: “ I was in Platte City on the day Col. Benton made bis speech, which was, I think, in the summer of 1849; saw Col. Benton after his address at Gaines’ Hotel; heard him talking in the porch of the hotel about an hour that day ; he was explaining or talking to the crowd about the outrage that he said had been committed there that day toward himself; and in substance used about this language : ' that the Platte City clique had caused him to be insulted at his stand in a private- grove ; had sent for a dog, a d — d sheep-killing dog or cur, Jim Birch, to answer his speech — a man who had whipped his wife and caused her to fly to a neighbor’s house with the marks of his violence upon her ; that his wife was a decent and intelligent lady, and that the cause of the difficulty was on account of Birch preferring to sleep with a d — d negro wench to his own wife.’ Such is ■about my impression of what conversation I heard,” &c. The substance of Mr. Terrill’s deposition is as follows : “ I was in Liberty on the day that Col. Birch and T. H. Benton spoke, in the summer of 1849. On the day that they spoke in Liberty, I was sitting opposite to Col. Benton on the pavement in front of Green’s tavern; there was a large crowd present listening to Col. Benton’s conversation; he very bitterly denounced Col. Birch as the man who had whipped his wife for the accommodation of a negro woman ; and said that he would not speak in the court-house with 'him, or notice him in any manner,” &o.

It will be observed that the venue of the conversation in which the plaintiff was charged with “ keeping his own negro wench” was laid at Platte City, and only one of the witnesses testifies to any thing that was said at that place, and he does not undertake to give the defendant’s language, but only his impression of the substance of it.

The petition contains four sets of words, and though the court subdivided it into four counts, it contains only one; but this subdivision, though technically incorrect, was a convenient mode of distinguishing the sets of words claimed to be .actionable. The first and third are that the plaintiff had ■whipped his wife, and imputed the offence of assault and battery; the second tbat the plaintiff was guilty of mayhem ; and the fourth that the plaintiff kept his own negro woman, which imputed the offence of adultery. Among other instructions the defendant asked this : “ 4. That the words in plaintiff’s petition charging defendant with having said that plaintiff whipped his wife are not words actionable under the law; and, although they may believe from the evidence that the defendant spoke such words, the speaking of the words did not authorize the jury to find for plaintiff.” The court refused to give this instruction, and gave the following: “ 1. The court, on the part of the plaintiff, instructs the jury, the slanderous words alleged to have been spoken by the defendant of the plaintiff, as alleged in the first and third counts, are admitted by the defendant to have been spoken, and the defendant has not by his answer justified or set up any de-fence to the same, except in mitigation of the damages.”

It is evident from these two instructions, the one given and the other refused, that the case was put to the jury on the idea that words are actionable of themselves, which charge a man with having whipped his wife. In this there was error, for, though there is no act which is more disgraceful or cowardly, and no offence for which a man ought more promptly to be branded with shame, yet there is no action for such slander without the allegation and proof of special damage.

The law engages not only to guard the property and personal security of individuals, but their good name and reputation ; and where a man has a temporal loss or damage .by the wrong of another, he shall have an action on the case to be repaired in damages.” In every case where a person suffers loss by the malicious defamation of another, he may have an action; and in many instances, as the immediate tendency of the slander is to produce injury, the law considers the speaking of words that impute particular offences as injurious ; and, presuming that the person whose character is assailed is damaged, confers the right of action without requiring the allegation or proof of special loss. Such words are called actionable of themselves; whilst for the speaking of others the party aggrieved must aver and prove special damage.

Various rules have been laid down by different courts, by which they undertake to determine what words are or are not actionable ; and though the adjudged cases have not agreed on a uniform rule, they generally concur in holding that “ the actionable quality of words results not from the degree of discredit attached to the party, but to the penal nature of the offence imputed.” The rule in New York, which has been followed by several other states, is that words are actionable in themselves in case the charge, if true, would subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment.” (Brooker v. Coffin, 5 John. 188.) This rule lacks certainty ; for the terms “ moral turpitude” and “ infamous” are of indefinite import, and men differ as to the quality of an act according to their own standard of morality. Some persons make no distinction between that which is malum prohibitum and malum in se, and regard every violation of law as immoral. It is indictable by our statute to sell liquor without a license by the glass. Some think that the selling of liquor at all is wrong, and that a violation of this law involves “ moral turpitude,” whilst others think that the business is honest and harmless, and that it is only improper to sell without a license, because the law prohibits it, and not because it is wrong in itself. It has also been held that words are actionable per se which impute a crime or misdemeanor that will subject the party charged to an indictment. This was an intelligible rule at common law; for an offence charged to be indictable implies that the punishment might be corporal, inasmuch as the lowest grade of punishment, even for a misdemeanor, was a fine or imprisonment, or both fine and imprisonment. But our statute has so much increased the number of indictable misdemeanors which are only punishable by fine, that this rule would be impracticable here. It would hardly be insisted in this state that it is actionable to say of a merchant that he had sold goods without a license, or that a road-overseer had neglected to keep his road in repair. Mr. Starkie, in his treatise on slander (1 Stark, on Sland. 43), suggests that it is actionable without proof of special damage “ to impute any crime, or misdemeanor for which corporal punishment may be inflicted in a temporal court,” provided the corporal punishment is the primary and immediate penalty for the offence. This definition omits one element which seems to be essential, namely, that the offence charged must be indictable. ,As the result of our examination we think the rule that is safest and most certain in its application is, that words are in themselves actionable which impute an indictable offence for which corporal punishment may be inflicted as the immediate punishment, and not as the consequence of a failure to satisfy a pecuniary penalty. The last charge in the petition is saved from the operation of this rule by the act of 1845 (R. C. 1845, p. 100,) which declares that “it is actionable to publish maliciously and falsely, in any manner whatsoever, that any person has been guilty of fornication and adultery.”

The third instruction given for the plaintiff was ambiguous and calculated to mislead the jury. It is as follows : “ The court further instructs the jury that the slanderous words charged as having been spoken by the defendant of the plaintiff in the fourth count in said petition are, ‘ all for keeping his own negro wench; defendant meaning thereby to charge, and being understood by those persons who heard him to charge, plaintiff with the scandalous crime of adultery with a negro woman.’ If the jury shall find from the evidence that the words proved to have been spoken by the defendant substantially correspond with those charged in the fourth count, and that defendant by the words meant, and was understood, to charge plaintiff with adultery with a negro woman, they must find a verdict for plaintiff upon that count.” The office of an innuendo is only to explain the defendant’s meaning, and the meaning as averred by an innuendo is a question of fact to be decided by tbe jury. This instruction in effect told the jury that the innuendo was true.

It was objected on the trial, and the objection has been urged in this court, that there is a fatal variance between the allegations in the petition and the proof. This was a question exclusively for the court. (7 Mo. 324.)

Different courts have been more or less rigid in the application of the rules of law bearing on questions of variance in suits for slander, but this court has laid down an explicit rule, from which it has never departed, to our knowledge, and we see no reason why we should now. In Berry v. Dryden, 7 Mo. 334, when two of the present members of this court were on the bench, the opinion delivered by Judge Scott stated the law on this subject as follows: “ The rule is stated in the books that the slander proved must substantially correspond with that charged in the declaration. By this it is not to be understood, that if certain words are employed to convey a slanderous imputation, these words will support a declaration containing the same imputation in different words. The meaning of the rule seems to be, that if the words charged to have been spoken are proved, but with the omission or addition of others not at all varying or affecting their sense, the variance will not be regarded. Although the words proved are equivalent to the words charged in the declaration, yet not being the same in substance an action can not be maintained; and, although the same idea is conveyed in the words charged and those proved, yet, if they are not substantially the same words, though they contain the sanie charge but in different phraseology, the plaintiff is not entitled to recover.” The authorities fully sustain this decision. It has long been settled that the declaration must profess to set out the very words, and that it is not sufficient to describe them by their sense, substance and effect (1 Stark. 362); and though it is not necessary to prove all the words, some of them must be proved as laid (ib. 369) ; and if all the words as laid constituted but one charge, the whole must be proved. (Ib. 374.)

The rule as stated in 2 Phil. Ev. 97, is adopted and approved in Fox v. Vanderbeek, 5 Cow. 515: “The words which are proved must be proved as laid, and it will not be sufficient to prove equivalent words of slander. Words to the same effect are not the same words ; and the plaintiff need not prove all the words on the record, yet he must prove so much of them as will be sufficient to sustain his cause of action.” It was also recognized afterwards in Olmstead v. Miller, 1 Wend. 506, and the opinion of the court is properly stated in the syllabus : “ In slander, though the words proved are equivalent to the words charged in the declaration, yet, not being the same in substance, an action can not be maintained ; and though the same idea is conveyed in the words charged and those proved, yet if they are not substantially the same words, though they contain substantially the same charge, but in different phraseology, the plaintiff is not entitled to recover.” “ The circumstance that the words proved have the same meaning with those laid is not sufficient; all the words laid need not be proved, but so many of them must be proved as will support the action.” (Creelman v. Marks, 7 Blackf. 281.) “ That all of any given set of words need not necessarily be proved, but so many only of the identical words charged in such set as are necessary to constitute of themselves the slanderous accusation.” (Iseley v. Lovejoy, 8 Blackf. 462.) In Williams v. Bryant, 4 Ala. 44, the words charged in the declaration were that the plaintiff’s wife was a “ whore,” and the proof was that the defendant said she was a “ strumpet.” Both the words charged and those spoken, imputed a want of chastity, and are of equivalent import, but the variance was held to be fatal, and the court decided that it was not sufficient to prove equivalent words of slander ; that the words must be proved, or at least so much of the charge as would constitute the slander, and that it was not sufficient to prove words of equivalent, slanderous import. And subsequently in Easeley v. Moss, 9 Ala. 267, it was said that words precisely equivalent in meaning would not sustain a declaration in which the words charged to have been spoken meant the same thing. In a conversation in which a person is slandered, a great deal may be said which does not vary the meaning of the offensive words, and therefore a variance between the declaration and proof as to the part of a statement which does not affect the sense will be immaterial; but the words that contain the poison to the character and impute the crime must be proved as laid; and this seems to be what is meant by the eases when they say that the words proved must substantially correspond with those charged. The application of this rule, so long settled and so well defined, to this case, shows, without comment, that there was a variance between the petition and the proof, and the defendant’s objection ought to have been sustained.

Judge Scott concurring,

the judgment will be reversed and the cause remanded.

Judge Napton gives no opinion.


text:
    Mansfield, Plaintiff in Error, v. Mansfield, Defendant in Error.
    1. Under the revised code of 1845 a decree of divorce, obtained by fraud, might be set aside upon a petition for a review.
    2. Section 14 of the act concerning divorce and alimony {It. C. 1855, p. 666) is applicable only to suits for divorce commenced after May 1, 1856.

      Error to Jasper Circuit Court.

      McCoy and Hendricks, for plaintiff in error.
    I. The court erred in permitting the bill of review to be entertained and in setting aside the judgment. (R. C. 1855, p. 666, sec. 14.)

      F. P. Wright, for defendant in error.
    I. The petition did not state sufficient ground for divorce. A final decree was improperly taken at the first term. The decree for divorce was obtained by fraud. (See Vanmeter v. Jones’ Exec’rs, 2 Green Ch. 523; Loyd v. Mansell, 2 P. W’ms, 73 ; Bradish v. Gee, 1 Ambl. 229; Lamersdale v. Lit-tledale, 2 Yes. 450.)
   Napton, Judge,

delivered the opinion of the court.

The only ground upon which the judgment of the circuit-court in this case is sought to be reversed is the 14th section, of the act concerning' divorce and alimony in the revised code of 1855. (R. C. 1855, p. 666.) That section provides that- “ no petition for review shall be allowed of any judgment for divorce rendered in any case arising under this act, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony of and maintenance of the wife, and the care, custody and maintenance of the children, or of any of them, as in other cases.” This statute did not go into effect until May, 1856. This suit for divorce was commenced in April, 1855. The provision is only applicable to proceedings commenced under the act, and consequently has no application .to this case.

To what extent the legislature designed to close up the doors of courts of justice against parties to divorce suits by this enactment- — whether the grossest frauds perpetrated in ex parte proceedings must be understood as perpetuated upon the record, without any power in the courts to give redress— is a question which may hereafter become important. This court has no wish or power to anticipate a decision on this question, nor have I individually any desire to put forward any suggestions of my own. It occurred to me, however, that the facts of this case would furnish a strong commentary upon a very rigid and literal construction of the 14th section above referred to. I state them merely as they stand admitted on the record by demurrer. The plaintiff persuaded his wife to pay a visit to her mother in Illinois, representing to her that her health, which was delicate, would be very much improved by such a trip. No sooner had she started than he institutes a suit for divorce upon the indefinite charge of personal indignities, consisting of abusive and threatening language. Representing her to be a nonresident, lie procures an order of publication, and at the first term of the court, upon proof, as the record states, that he was an injured party, he gets a divorce. In the meantime he had kept up a very affectionate correspondence with his wife, couched in the most loving terms, and had also visited her and persuaded her to remain in Illinois upon assurances that he designed moving there, and that her return to Missouri would be an unnecessary and expensive journey. The wife finally returns to this state and for the first time learns that she is no longer a wife; that she and her children are thrown upon the world without any allowance, and with charges against her reputation and character of which she never before heard. She comes into court within the period allowed by the law as it stood before 1856 and as it still remains in all other cases, and asks to be heard in defence, declaring the utter futility of the charges, and stating her entire ignorance of the whole proceeding from first to last. To this petition the plaintiff demurred, and the circuit court overruled the demurrer. The plaintiff then took a nonsuit.

Of course we could have but one opinion of the merits of this case. Did the statute of 1855 intend that ex parte de crees in divorce cases, obtained by fraud, should never be disturbed or. looked into ? If the provision were limited to cases where a second marriage intervenes, a motive for such an enactment could be perceived ; but when no new ties have been formed, why put judgments in these cases on any other footing than all other judgments, where they have been brought about by fraud ?

The other judges concurring, judgment affirmed.


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    Ragan et al., Defendants in Error, v. McCoy, Plaintiff in Error.
    1. In suits commenced under the practice act of 1849, where the cause is tried by the court without a jury, there should he a finding of the facts.
    2. The finding of the facts is a part of the record, and need not be preserved in a bill of exceptions.

      Error to Clay Circuit Court.

      Hovey, for plaintiff in error.
    I. The court ought to have made a written finding. (Bates v. Bower, 17 Mo. 650 ; 19 Mo. 122; 20 Mo. 262, 132,188, 262.) No bill of exceptions could have been obtained. The finding of the facts is a necessary part of the record. (See Nearns v. Harbert, 25 Mo. 352.)

      Sheley, for defendant in error.
    I. The law does not require that the written finding of the court shall be spread upon the record. It could then only become a part of the record by bill of exceptions. There being no bill of exceptions for aught that appears to this court, a written finding may have been made by the circuit court. (Art. 15 of Practice Act, 1849; Lindon v. King, 22 Mo. 336.)
    II. This court can not look into any case unless it is accompanied by a bill of exceptions. (State v. Weidner, 22 Mo. '327 ; Ames v. Bircher, ib. 586.)
   Richardson, Judge,

delivered the opinion of the court.

This suit was begun under the act of 1849 and was tried by the court without a jury. The record does not contain (lie finding of the facts by the court, and for that reason, according to the settled practice of this court since the case of Bales and Bower, 17 Mo. 550, the judgment must be reversed and the cause remanded. (20 Mo. 132, 133.)

The finding is a part of the record proper, and it is not necessary to preserve it in a bill of exceptions. This rule does not apply to actions begun under the act of 1855.

The other judges concur.


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    The State, Appellant, v. Runyan, Respondent.
    1. An indictment charging that the defendant — who is not alleged to be a merchant — did at, &c., unlawfully sell to one E. intoxicating liquors, to-wit, one gallon and one quart, for the price of ten cents, without having any kind of license for that purpose,” is had.

      Appeal from Hickory Circuit Court.

      Ewing, (attorney general,) for the State.
    I. The indictment is good. It is not necessary to aver more specifically the kind of liquor sold. (1 R. C. 1855, p. 688, sections 1, 2, of Dram-shop Act.) The offence consists in selling intoxicating liquor without a license. Under a dram-shop license, it may be sold in any quantity less than ten gallons; under a merchant’s license in quantities not less than one gallon. “ Any kind of license” is negatived in the indictment.

      Johnson, for respondent.
    I. The circuit court, did right in sustaining the motion and quashing the indictment. The revised statute of Missouri took effect first of May, 1856 ; this indictment was found in November, 1856, and the alleged offence is charged to have been committed in July, 1856, at which time there was no law requiring a person to have a license of any kind whatever to sell one and a quarter gallons of intoxicating liquors. The dram-shop law was not violated, as' the license to be obtained under that law only authorizes persons to sell intoxicating liquors in any quantity less than one gallon. (R. C. 1855, p. 688.) In order to make the party liable for violating the law to license and tax merchants, the indictment should have charged that the defendant dealt in the selling of goods, wares and merchandise at a store, stand or place occupied for that purpose ; for, under the law of Missouri, a man is not a merchant unless he deals at a store, stand or place occupied for that purpose. (See R. C. 1855, p. 1072.) Grocers’ licenses are now similar to, or rather embraced under the head of, merchants’ licenses. (See section 26 of the act last referred to.)
   Napton, Judge,

delivered the opinion of the court.

This indictment charges that the defendant “ did then and there unlawfully sell to one Thomas I. Fisher intoxicating liquor, to-wit, one gallon and one quart, for the price of ten cents, without having any kind of license for that purpose.” The indictment was quashed upon motion in the circuit court, and we think correctly. This indictment was found at the October term, 1856, of the circuit court of Hickory county, and consequently falls under the provisions of the revised statutes of 1855.

There is no averment that defendant was a merchant within the meaning of the first section of the act “ to license and tax merchants” (2 R. C. 1855, p. 1072) ; nor is any breach of the first section of the act to regulate dram-shops (1 R. C. 1855, p. 683) alleged. We have not been refex-red to any provision of the code of 1855 prohibiting the sale of spirituous liquors in quantities exceeding a gallon without license, unless where the vendor is a merchant. The second section of the dram-shop law might be regarded as an implied prohibition were it not for the first section. The latter is a direct and positive prohibition, and yet would be entirely supererogatory if the second section should be held to bear the construction suggested.

The other judges concurring, judgment affirmed.


text:
    The State, Appellant, v. Andrews, Respondent.
    1. An indictment charging that the defendant on, &c., at, &c., did “unlawfully sell a quantity of spirituous liquors, to-wit, one quantity of whisky, and did then and there unlawfully permit the same to he drank at a place under his control, without then and there haying a dram-shop keeper’s license, innkeeper’s license, or any other legal authority to sell said spirituous liquors,” &c., is had.

      Appeal from Polk Circuit Court.

      Ewing, (attorney general,) for the State.
    I. The sale of spirituous liquor in any quantity and permitting it to be drank at a place under the control of the vendor, is illegal, except it be by one having a license as a dram-shop keeper. (R. C. 1855, p. 688, § 1, 2.) The offence is therefore sufficiently charged in the indictment.

      F. P. Wright, for respondent.
    I. The only question in this case is, whether the indictment is sufficient. The statement amounts to this, and no more, that defendant, in August, 1856, at the county of Greene, sold a quantity of spirituous liquor without having a license, and permitted the same to be drank at a place under his control. It is. not a plain, brief and certain statement of an offence and of those circumstances that concur to ascertain the facts and its nature., (2 Hale, 169.) It is not drawn under the dram-shop law ; that act contemplates that the liquor will be drank at the place of sale. The law respecting the sale of liquor by a merchant only forbids its being “ drank at his store, stand or warehouse, or other place of business. There is nothing said in the statute about any place under his control. It is also submitted whether the indictment should not have averred that defendant was not a dealer in drugs and medicines, and that the liquor was not used for medical purposes. Spirituous liquor may be sold in a quantity over one gallon without any license.
   Napton, Judge,

delivered the opinion of the court.

This indictment was found at the September term, 1856, of the circuit court of Greene county, and charged that defendant on, &c., at, &c., did then and there unlawfully sell a quantity of spirituous liquors, to-wit, one quantity of whis-ky, and did then and there unlawfully permit the same to be drank at a place under his control, without then and there having a dram-shop keeper’s license, inn-lceeper’s lieense, or any other legal authority to sell said spirituous liquors,” &e. This indictment was quashed.

We will affirm the judgment for the same reason given in the case of the State v. Runyan, saying nothing of other exceptions which have been urged.

The other judges concur.


author: Napton, Judge.

text:
    The State, Appellant, v. Andrews, Respondent.
    1. State v. Andrews, ante, p. 169, affirmed.

      Appeal from Polk Circuit Court.

      Ewing, (attorney general,) for the State.

      Wright, for respondent.
   Napton, Judge.

This case involves the same question determined in the previous case of the same title. Judgment is affirmed.


text:
    The State, Appellant, v. Chilton, Respondent.
    1. State v. Runyan, ante, p. 167, affirmed.

      Appeal from St. Clair Circuit Court.

      Ewing, (attorney general,) for the State.

      W. P. Johnson, for respondent.
   Napton, Judge.

This indictment is liable to the same objection adverted to in the case of the State v. Runyan, and the judgment of the circuit court will therefore be affirmed.

The other judges concurring.