text:
    Dodd, Defendant in Error, v. Winn, Plaintiff in Error.
    1. A release of one of several sureties by the creditors will discharge the the others only so far as the released surety would be bound to mate contribution if the other sureties or any of them should pay the entire debt.
    2. A., the payee of a promissory note obtained judgment thereon against B., one of five sureties; an execution under said judgment was levied on ■property belonging to B. sulficientto mate the debt; A. ordered this execution to be returned unsatisfied; A. subsequently commenced suit against C., another of said sureties; held, that if all the sureties were solvent A. could recover of C. only four-fifths of the debt; if all the other sureties were insolvent, ho could recover only one-half the debt of C.
    3. If one of several co-sureties is insolvent, the other co-sureties will be bound to make contribution as among themselves as if the insolvent surety had not been a surety at all. (See B. O. 1845, p. 1000, § 8.)

      Error to Ralls Circuit Cov/rt.

    This was an action in favor of Levi Dodd against Isham 0. Winn on a promissory note executed by David C. Glascock, M. McDonald, R. F. Richmond, Minor J. Winn, James G. Caldwell and said Isham 0. Winn. The jury found the following special verdict: “ We, the jury, find a special verdict as follows : On the 6th day of April, 1849, the plaintiff Dodd sued Minor J. Winn, on the same note now sued on, before the recorder of the city of Hannibal, the said Minor being one of the obligors in the note. Said Dodd recovered a judgment before said recorder against said Minor on the 6th day of April, 1850 ; and an execution was issued by said recorder oh said judgment on the 11th day of April, 1850, and placed in the hands of the marshal of said city, and by him levied on a house in said city as the property of Minor J. Winn ; that said marshal advertised said house for sale under said execution, but did not sell the house, being ordered by the plaintiff’s counsel to tear down the advertisements and return the execution “ no property foundwhich he did; and no execution has since issued on said judgment by the recorder. The jury further find as follows, that when the marshal levied on the house as aforesaid, a part of said house was owned by said Minor J. Winn, which part so owned by him was worth the sum of $137.50. Said house was standing on a piece of ground owned by Jeremiah Strode, who had leased it to said Minor J. Winn, with the privilege of taking off when he pleased any house he might erect thereon. Minor J. Winn had built the house in question on said lot, but had sold a part of it before the execution was levied as before stated. The jury further find that David 0. Glascock was the principal in the note sued on, and that Minor J. Winn and Isham 0. Winn were each securities for said Glascock.”
    The court rendered judgment on this verdict in favor of plaintiff for eighty dollars debt (four-fifths of the amount of the original note sued on), and assessed the damages for the detention thereof at seventy-six dollars.

      Lamb & Lakenan, for plaintiff in error. .
    I. Tlie plaintiff having levied upon a sufficient amount of property with his execution against M. J. Winn to pay his entire debt, and having afterwards voluntarily released said property, he thereby released each of the other co-securities from the debt. (See 7 Mo. 497 ; 24 Mo. 338 ; 26 Mo. 243 ; 16 S. & R. 252 ; 10 Paige, 16.) The co-securities may all have been solvent at the time of the release of the property from execution, and all may now be insolvent. The jury should have been required to find as to the solvency or insolvency of the co-securities.

      Porter & Harrison, for defendant in error.
    I. A creditor may discharge one security without discharging the other. The judgment below is not erroneous. (1 Sto. Eq. § 499; Rice v. Morton, 19 Mo. 263 ; 17 Mo. 399.)
   Richardson, Judge,

delivered the opinion of the court.

The law is well settled that a valid agreement between the creditor and the principal debtor to extend the time of payment, or any improper interference by the creditor with the process of law after the commencement of a suit, by which the surety may be injured or subjected to greater risk, or be delayed in the right on payment of the debt to proceed against the principal, if made or done without the assent of the surety, will discharge him from his liability; (24 Mo. 333; 26 Mo. 243;) and the relation of principal and surety or of co-sureties is not extingushed by judgment. (Rice v. Morton, 19 Mo. 263.) A release of the principal will discharge the surety, but one surety may be discharged, without prejudice to an action against the others, to the extent that they would be liable in a suit for contribution between themselves. (Routon v. Lacy, 17 Mo. 399.) The creditor can not, by discharging one, increase the liability of the other; and he will not be allowed, by discharging one, to impose on the other a greater proportion of a common burden than in equity be ought to bear. At law, if there are several sureties and one is insolvent and another pays the whole debt, he can only recover against the solvent sureties their pro rata part as if all of them were solvent; but the rule in equity is more just and reasonable, and the insolvent’s share is apportioned among those who are solvent. (1 Story Eq. § 498.) The eighth section of our statute concerning securities provides that one surety at the suit of another shall not be liable to pay more than his due proportion of the original demand, but what is his due proportion will vary according to the circumstances. Thus, if there are three sureties, and all of them are solvent, and one pays the debt, each of the others will be liable to him for one-third of the amount only; but if one of them is insolvent, the other will be liable for one-half.

In this case it seems that Glascock was the principal debt- or, and that the other five parties to the note were sureties. Now if all the sureties were solvent, and the defendant paid the debt, he could only require M. J. Winn to contribute one-fifth part of it, and therefore could only ask to have one-fifth abated, and could only complain of the conduct of the plaintiff in releasing the levy of the execution to that extent. But if the other sureties are insolvent, M. J. Winn would be bound to contribute to the defendant one-half instead of one-fifth of the debt; in which case, if the plaintiff had released to M. J. Winn, he could only demand of the defendant the other moiety; and, on principle, the same result must follow if he could have made half the debt but for his improper interference with the execution. These questions can not bo determined from the meagre statement of facts in the special verdict. It does not appear whether the other sureties were solvent or not.

The statute authorizes this court to remand a cause when the facts in a special verdict are insufficiently found; (2 R. C. 1855, p. 1301, § 35;) and the judgment then will be reversed and the cause remanded;

Judge Napton concurring. Judge Scott not sitting.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    Smith, Appellant, v. Rice, Respondent.
    1. The relation of maker and endorser of a promissory note so far continues after the recovery of judgments against them at the suit of an endorsee that an agreement with the maker to stay execution as to him for a specified period will operate a discharge of the endorser, and entitle him to a perpetual stay of execution.

      Appeal from St. Louis Gowrt of Common Pleas.

    This was a suit by Irwin Z. Smith on two certain promissory notes against John Sigerson, the maker, and Anapias Eice, the endorser thereof. The suit was instituted in the St. Louis court of common pleas. After the institution of this suit, said Sigerson, on the 10th of October, 1857, confessed a judgment, in the St. Louis circuit court, on said notes in favor of said Smith. On the 19th of November, 1857, the following entry of record was made with respect to the judgment thus confessed : “ Now at this day comes the plaintiff herein and consents and agrees that execution may be stayed upon the judgment obtained by him against the said defendant until the first Monday in October, 1858.” In the suit instituted in the court of common pleas, the plaintiff, on the 27th of October, 1857, dismissed as to Sigerson and took a judgment by default against Eice. On this judgment an execution was issued and property belonging to Eice was levied on. Eice filed a petition in the court of common pleas setting forth the above facts and praying that said execution might be quashed and a satisfaction of said judgment against Eice entered. The .court ordered “that execution against the said defendant, Anapias Eice, on the judgment be perpetually stayed.” It is to reverse this order that the plaintiff appeals to the supreme court.

      I. Z. Smith, for appellant.
    I. The record does not show that there was any valid agreement for the stay of execution. It was a mere order to the clerk. It might at any time have been countermanded. (1 Bailey, 412; 9 Thomp. 382; 4 Strobh. 87 ; 11 S. & E. 179 ; 4 McLean, 87; 3 McLean, 376 ; 5 Wend. 505.) Even if tlie agreement was valid, it would not discharge the endorser. The rule that giving time to the maker discharges the endorser does not apply after judgment. (2 Chitt. E. 125 ; Sto. on Notes, 417; 8 M. & W. 669 ; Thompson on Bills, 542.) None of the rights of the endorsee were affected. By paying the amount of the judgment, he could have maintained an action against the maker for so much money paid. (Bullock v. Campbell, 9 Gill, 182; Hammond v. Freeman, 9 Ark. 62.)
    Decker, for respondent.
    I. If a principal discharges or gives time to the other principal, he discharges all the sureties, where such time is given without the consent of the other sureties. (2 Blackf. 14 ; 2 Yes. jr. 540 ; 12 Wheat. 557 ; 6 Pet. 250 ; 9 Barn. & Cress. 707; 10 id. 578 ; 3 B. & P. 363; 2 Camp. 179 ; 2 B. & P. 60 ; 8 East, 576 ; 15 id. 617 ; 4 Ad. & El. 577 ; 2 Swanst. 193 ; 4 Taunt. 456; 7 id. 126; 3 Esp. 46; 2 Meriv. 271.)

   Richardson, Judge,

delivered the opinion of the court.

The doctrine may be considered as settled in this state— where law and equity are administered in the same form and in the same suit — that a judgment does not extinguish the relation of principal and surety; (Morton v. Rice, 19 Mo. 263;) and the same causes that will discharge a surety will discharge an endorser. (Bank U. S. v. Hatch, 6 Pet. 250.)

The entry in the record in the case of the plaintiff against Sigerson in the circuit court, on the 19th November, 1857, by which the plaintiff consented and agreed that execution on the judgment should be stayed, ought to stand on as high ground as an agreement of a like kind under seal, and is certainly evidence of a valid contract. The plaintiff put it out of his power to sue out execution before the first Monday of October, 1858, and the record entry operated as a valid contract for delay whereby the plaintiff suspended his remedy against the principal for a stipulated- period. The plaintiff had no right to receive payment of the judgment from Rice before October, 1858, because he had agreed with Sigerson to wait until that time ; and if Rice had paid the judgment he would not have been entitled to immediate recourse on Sigerson, because the latter could not be compelled to pay the endorser any sooner than-payment could have been demanded by the creditor; for, having secured an extension of time by a valid contract with a person authorized to make it, he would not lose the benefit of the indulgence by the premature payment of the debt by the endorser.

The principle on which the surety is discharged, when an agreement to give time for a sufficient consideration is made by the creditor and the principal debtor, is very clearly stated by Chancellor Kent, in King v. Baldwin, 2 Johns. Ch. 559: “ The surety is entitled to pay the debt when it becomes due, or he may call upon the creditor, by the aid of this court, to enforce his demand against the principal debtor. On paying the debt, he is entitled to the creditor’s place by substitution ; and if the creditor, by agreement with the principal debtor without the surety’s consent, has disabled himself from suing when he would otherwise have been entitled to sue under the original contract, or has deprived the surety on his paying the debt from having immediate recourse to his principal, the contract is varied to his prejudice and he is consequently discharged.”

In this case the plaintiff could not proceed on the original debt, because it was merged in the judgment; and he could not enforce the judgment, because he had agreed to stay the execution. The courts will not inquire whether the delay has in fact been injurious, for the presumptive injury to the surety is sufficient to exonerate him. (Hoffman v. Hurlbert, 13 Wend. 377.) In the case for 6 Pet. 250, the Bank had instituted suit against the drawer of a bill of exchange, and the attorney of the Bank having made an agreement for a valuable consideration with the defendant that the suit should be continued without judgment until the term after that at which judgment would have been entered, it was held that the endorser was discharged.

The other judges concurring, the judgment will be affirmed.


author: Scott, Judge,

text:
    The State, Respondent, v. McO’Blenis, Appellant.
    1. In retaxing the costs in a cause, if the fees are not legally chargeable they will he disallowed; if the fee-bill on its face is illegal, it must be rejected but if the charges are such as may hare been legally incurred in the prosecution or defence of the action, the fee-bill will be taken to be prima fade correct, and the burden of showing its incorrectness is on him who objects to it.

      Appeal from St. Louis Criminal Court.

    In this cause, directed by the opinion of the supreme court, reported in 21 Mo. 272, a retaxation of the costs was had. In retaxing the costs, the court sustained the taxation against McO’Blenis as originally made. Among the items charged against McO’Blenis were the following: “ Clerk Howard— indict. 50 cents — capias, $1 — recog. 25 cents — 3 issues, 75 cents — 5 continuances, $1.25 — fifty subpoenas in common for the State — 15 subpoenas in common for defendants, $32.50— six attachments in common for State — five attachments in common for defendants, $11 — two venires, $1.50 — 3 juries, $2.25 — one hundred and thirty oaths, $6.50 — two verdicts, 50 cents — six law judg’ts, $1.50 — 3 judg’ts, 75 cents — execution, $1 — $61.25 ; Marshal Bayles, capias, $1 — 190 subpoenas in common for State, $95 — 57 subpoenas in common for defendants, $28.59 — five attachments in common for State, $5— three attachments in common for defendants, $3 ; two juries in common for defendants, $1.50 — two trials in common, $2, <fec.; jury tax in common, $3.” The fees of the witnesses “ in common” for the State and those for the defendants in common were also taxed against McO’Blenis.

      The ground on which McO’Blenis moved the court to re-tax the costs was that -he was not responsible for any costs incurred by the State in the prosecution of any one of the . defendants but himself; that he should not be taxed for the costs of a witness unless known to be summoned at his instance, or unless known to be summoned by the State against him; that a general subpoena for the State in the case of the State v. Buntlin and others, was not necessarily for a witness against him; that a general subpoena for a witness on the part of the defence, issued in said cause, was not necessarily a subpoena on behalf of McO’Blenis ; that he should not be taxed with the whole cost of the board of the jury, nor the whole costs of the judgments rendered, &c.
    The court decided that the costs had been correctly taxed.

      J. R. & R. F. Barrett, for appellant.
    I. The taxation of costs is contrary to the opinion of the court and illegal. (See 21 Mo. 272.)

      Decker and Voorhis, for respondent.
   Scott, Judge,

delivered the opinion of the court.

In retaxing the costs of a case, if the fees are not legally, chargeable, they will be disallowed. If the fee-bill on its facéis illegal, it must be-rejected. But if the charges are such as may have been legally incurred in the prosecution or defence of the action, it will be taken to be prima facie correct, and the burden of showing its incorrectness is on him who objects to it. Applying this principle to the fee-bill before us, we do not see on what grounds we can interfere. The charges are such as might have been rendered in the cause in which they are entered. No evidence is preserved in the record, and we are without any means of ascertaining the sum really due by the appellant.

The other judges concurring, judgment affirmed.


text:
    Sawyer, Defendant in Error, v. Mitchell, Plaintiff in Error.
    1. Interest in the event of a suit does not render the person so interested an incompetent witness.
    2. The fact that a person introduced as a witness had, before the commencement of the suit, received an order from, the plaintiff for sum sued for, the order not being accepted in discharge of the debt due him from the plaintiff and that he was authorized to bring suit for the plaintiff, does not disqualify him as a witness in behalf of the plaintiff; the suit is not prosecuted for his immediate benefit.

      Error to Ralls Circuit Court.

      Porter & Harrison, for plaintiff in error.
    I. Hardin was an incompetent witness. (18 Mo. 564; 24 Mo. 262; 28 Mo. 182; 3 C. B. 299.)

      S. S. Allen, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

A Witness (Hardin) for the plaintiff, on his voir dire, testified that before this suit was brought the plaintiff had given him a written order on the defendant for the sum which was in controversy in this action; that the plaintiff was indebted to him and gave him the order for the purpose of enabling him to collect the amount and apply the proceeds to the pay ment of plaintiff’s debt to him; that he did not take the order in discharge of his debt; that he presented the order to the defendant and its payment was refused; that he was authorized as agent for the plaintiff to institute this suit. On this, the defendant objected to the witness on the ground that the suit was brought for his use. The court overruled the objection and the defendant excepted.

We do not see the ground on which it can be maintained that this suit was brought for the use of the witness in the sense in which that phrase in the statute is to be understood. The law declares that an interest in the suit shall not disqualify a witness. At the same time it provides that neither party shall be a witness in his own behalf. We must bear this provision in mind in considering this question. There are cases in which the real plaintiff in interest (one so to all substantial purposes) is compelled to use the name of another in order to recover his rights, where he has as absolute control over the suit as though he was the nominal as well as the real plaintiff. It is to these the statute applies. An interest in the suit does 'not disqualify a witness. It is only when he is the real plaintiff in interest, compelled to use the name of another in asserting his rights, that he is disqualified. This witness was not disqualified. In no sense could it be said that this suit was brought to his use. If the suit failed, the witness would not have lost his debt. The plaintiff would still have been liable to him. He was not liable for costs. That the plaintiff intended or the witness expected to be paid out of the sum recovered, did not make him one for whose use the suit is brought.

The other judges concurring, the judgment will be affirmed.


text:
    Johnston, Respondent, v. Mason et al., Appellants.
    1. The character of a notice to endorsers of the dishoner of a promissory note may he proven by parol testimony. A notice to produce the notice is not necessary.
    2. After the plaintiff in an action against the endorsers of a promissory note has closed his testimony and an instruction has been moved upon it, it is not error to permit Mm to recall a witness to show the character of the notice given to the endorsers.

      Appeal from St. Louis Cowt of Common Pleas.

      Gray, for appellants.

      Shreve, for respondent.
   Scott, Judge,

delivered the opinion of the court.

There was no error in permitting the plaintiff, after his case was closed and an instruction moved on it, to show the character of the notice he had given the endorsers. (Rucker v. Eddings, 7 Mo. 115.)

By a reference to the forms appended to the revised code of 1855, it will be seen that the allegation that the endorser of a bill of exchange had “ due notice” is sufficient.

A notice to produce a notice is not necessary. (Christy’s Adm’r v. Horne, 24 Mo. 246.) The contents of the notice of the nonpayment of the note were legally proved by parol. Although the statute requires that notarial acts shall be recorded, it would not follow that a notice of nonpayment should be literally copied. A memorandum of the time and circumstances of the notice would be a compliance with the law.

The other judges concurring, the judgment will be affirmed.


author: Napton, Judge,

text:
    Crow et al., Defendants in Error, v. Coons, Plaintiff in Error.
    1. A., a citizen of and residing in the state of Missouri, sold goods to B., who also at the time of the sale resided in said state; B. gaye his note to A. for the indebtedness thus incurred; B. afterwards went to and became a citizen of California; A. transmitted said note to one C., an attorney at law in California, for collection; C., deeming it for the interest of A., surrendered said note to B., and received in renewal thereof another note from B.; this note was made payable to the order of “ C., attorney of A.;” while this note remained in the hands of C., B. obtained a discharge therefrom under the insolvent law of California; C. afterwards endorsed the note to A. in Missouri, who commenced a suit thereon against B. Held, that the discharge under the insolvent law of California could not be regarded as a valid discharge by the law of this state.

      Error to St. Louis Gowrt of Common Pleas.

    This was an action by Wayman Crow and others, members of the firm of Crow, McOreery & Co., on the following promissory note : “ $11,850. San Francisco, April 4,1854. $ix months after date, I promise to pay to the order of Lloyd Tevis, attorney of Wayman Crow, P. B. McOreery and William H. Barksdale, eleven thousand eight hundred and fifty dollars, with interest thereon at the rate of ten por cent, per annum from date until paid, for value received. [Signed] Benj. E. Coons.”
    The facts upon which the case was tried were all agreed and were substantially as follows : “ That defendant on the 9th day of March, 1848, at St. Louis, executed to plaintiffs his promissory note of that date for the sum of 18,951.88, payable to Crow, McCreery & Barksdale, or order, in eight months after the date thereof; the consideration of which said note was for goods sold by said plaintiffs to said defendant, of the value of the sum specified in said note ; that said note was not paid at its maturity; that at the time of the making of said note both defendant and plaintiffs were citizens of the state of Missouri, where said plaintiffs have ever since resided; that afterwards and after the maturity of said note said defendant went to California and became domiciled there ; that said plaintiffs sent out the above mentioned note to Lloyd Tevis, an attorney residing at San Francisco, in said state of California, for collection against said defendant; that said Tevis, deeming it for the interest of plaintiffs, his clients, so to do, delivered up to the defendant the above mentioned note, in substitution wherefor, at San Francisco, in said state of California, defendant executed and delivered to said Tevis the note now in suit and on file in this case, said defendant and said Tevis being then residents and citizens of said state of California; that said Tevis had no interest whatever in the note first above described ; nor did he hold the note in suit for himself, but only as attorney for said plaintiffs ; that the legislature of the state of California passed an act entitled 4 An act for the relief of insolvent debtors and protection of creditors,’ approved May 4, 1852, &c.; that after the making and delivery of said note by defendant to said Tevis, and while both said defendant and said Tevis were citizens of and residents in said state of California, and while said note was in the hands of said Tevis, and before any endorsement by him, the said defendant filed his petition in the proper court in said state of California under said act and praying for the benefit thereof; that in his said petition, among’ other debts stated to be due by him, he did specifically and particularly set forth and name the said note now in suit in this court as being due to the payee therein named; that thereupon such proceedings were had in said court, that the said court did order, adjudge and decree that the said Benjamin F. Coons should be released and fully discharged from any and all debts theretofore contracted by him and contracted after the passage of said act, and from any judicial proceeding relative to the same ; that all said proceedings and said judgment were in strict accordance with the laws of California; that said note sued upon remained in the hands of said Tevis without endorsement at the time of the discharge aforesaid.” The act referred to was made part of the agreed statement.
    The court rendered judgment on the above facts for the plaintiffs.
    Shepley, for plaintiff in error.
    As between citizens of the same state a discharge under the insolvent laws of that state operates as a full discharge of all debts. At the time Coons ajDplied for the benefit of the insolvent laws of California, the note now in suit was the only one upon which he was liable, and the only contract by which he was holden. The old note was surrendered to Coons. The new note was for a different amount. Coons stands in the same position here as any other citizen of California would, if Tevis had talcen the note of that other person at the time of giving up the old note. At the time of the proceedings in insolvency the note here sued upon was in law and fact the property of a citizen of California, and was a contract between two citizens of California. Before endorsement, the plaintiffs could not have sued upon it. Tevis was the only person who could. (See 7 Mo. 298; 9 Mo. 168, 377 ; 19 Mo. 193; 12 Mo. 538.) The endorsement by Tevis was after the discharge. (See Hall v. Boardman, 13 N. H. 38.) The suit is founded on the note and not on an open account.

      Gantt and Sedgwick, for defendant in error.
    I. The contract was essentially a Missouri contract. The goods were sold and the original note was given at St. Louis, Missouri, both parties being citizens of Missouri. The subsequent renewal of the note at California did not in anywise alter it in this respect. Being a Missouri contract, the bankrupt laws of California did not discharge it. (See Raymond v. Merchant, 3 Cow. 147; Keevill v. Eareira, 18 Mo. 186; Ogden v. Saunders, 12 Wheat. 213 ; 10 Mass. 367 ; 15 Mass. 396; 18 Johns. 54; 2 Aiken, 12; 3 Conn.-; 4 Wheat. 122, 208, 209 ; 6 Wheat. 131; 2 Johns. 241; 1 Hill, 516 ; 4 Barb. 369; 6 Barb. 432 ; Chitt. on Contr. 593 ; 9 Mo. 58 ; 12 Pick. 580; 2 Blackf.-; 8 Pick. 194; 12 S. & M. 554; Story on Agency, § 154, 160, 169, 394, 403 ; 24 Verm. 33 ; 21 Pick. 486 ; 5 Mass. 491; 2 B. & P. 147 ; 13 Verm. 334 ; 2 McLean, 352; Chitt. Plead. 4, 5 ; 8 Conn. 60 ; 1 Johns. 139; 15 Johns. 1; 7 Mass. 37 ; 2 Pick. 86; 5 Pick. 7 ; 1 Mo. 237; 6 Johns. 94; 6 Shepl. 361; 4 Dev. 357; 6 Hill, 47.)
   Napton, Judge,

delivered the opinion of the court.

The judgment of the court of common pleas upon the agreed facts in this case is manifestly right, unless the note taken by Tevis in California in April, 1854, essentially altered the character of the transaction. Admitting that the form of this note had the effect of placing the legal title in Tevis, so that he could have maintained an action thereon, the question still arises whether the form of a contract is to conclude as on the question of beneficial ownership. That Tevis was a mere attorney of the plaintiffs appears on the face of the note ; and if it did not, the facts show it to have been so beyond dispute. If a citizen of California purchases goods in St. Louis, and givps his notes for them to a mercantile firm here, and that note is endorsed to an attorney in California for the convenience of collection, does this circumstance make the note a California contract subject to be discharged by their bankrupt laws ? The actual beneficial owners of the note reside here ; and, if the note was not transferred nominally to a citizen of California, there could be no question made ; and shall a mere change in the form of a paper, contrary to the intention of parties, be allowed to work an essential change in the rights conferred by it ?

The case under consideration is stronger than the one put. Here the plaintiffs and defendant were all citizens of this state, where the original indebtedness arose from-which this note of April, 1854, sprung. The defendant gave his note here for the indebtedness. That note was transmitted to the agent of the plaintiffs in California, where the defendant had gone, and it was given up for the renewed note now sued on. The plaintiffs were undoubtedly for all beneficial purposes still the owners of the note of April, 1854 ; and as they resided here the bankrupt law of California did not discharge the contract.

The other judges concurring, the judgment is affirmed.


text:
    Ream, by next friend, Respondent, v. Watkins, Appellant.
    1. Where am employee, -wrongfully discharged Before the completion of Ms term of service, brings an action, before the expiration of such term, to recover damages for the breach of the contract, it is error to rule that the measure of damages is the contract price of his services for the whole term.

      2. A child allowed by its father to leave home and to work and shift for himself may maintain an action in his own name to recover the value of services rendered by him.

      Appeal from Si. Louis Law Commissioner’s Cowt.

    Buckner, for respondent.

      A. M. Gardner, for appellant.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff, who is a minor, commenced this suit by his next friend before a justice of the peace. In the statement filed with the justice, the plaintiff claimed a balance of twenty-two dollars and five cents for three months and fourteen days’ work, at the rate of one hundred dollars per year, from the 23d of September, 1855, until the 6th January, 1856, when lie was wrongfully discharged by the defendant; also sixty-seven dollars and seventy-five cents as damages for breach of a contract by which the defendant had engaged the plaintiff to work for him one year commencing September 23d, 1855, at the price of one hundred dollars per annum, enough to be paid at such times as the plaintiff needed it to purchase necessary clothing, and the residue at the expiration of the year. The suit was commenced January 23,1856. The contract as proved was that the plaintiff was engaged by the defendant to work for him for one year at the price of one hundred dollars, of which twenty dollars were to be paid from time to time as the same should be needed. The plaintiff was discharged on the 7th January, 1856, and the main defence relied on was that his conduct was such as to justify his dismissal. The court instructed the jury that if the plaintiff was discharged before the expiration of the time for which he was hired, without good cause, he was entitled to recover the full amount of the wages for the whole term at the contract price.

This instruction was erroneous. In Smith on Master and Servant, 73 Law Lib. 90, it is said that a servant wrongfully discharged has two remedies, either of which he may pursue immediately on his discharge: “ First, he may treat the contract of hiring and service as continuing, and bring a special action against his master for breaking it by discharging him, and this remedy he may pursue whether his wages are paid up to the period of his discharge or not; or, secondly, if his wages are not paid up to the time of his discharge, he may treat the contract of hiring and service as rescinded, and sue his master on a quantum meruit for the services he has actually rendered.” The plaintiff can only recover in the latter form of action for the services actually rendered up to the time of his discharge, whilst in the former case he might recover something beyond the amount due at the period of his discharge. In the note to Cutter v. Powell, 2 Smith’s Lead. Cas. 87, it is stated, with some hesitation, that a servant improperly discharged has another remedy, to-wit: “ he may wait till the termination of the period for which he was hired, and may then, perhaps, sue for his whole wages in m-debitatus assumpsit, relying on the doctrine of constructive service.” But this proposition is doubted if not denied in a note to Smith on Master and Servant, (p. 90,) and in Goodman v. Pocock, 15 Q. B. 574.

The measure of damages, in an action for a wrongful discharge brought before the expiration of the term, is not necessarily the contract price for the whole term, because a plaintiff after he is dismissed may sue and recover a judgment and then obtain employment elsewhere, and receive for the residue of the term as much or more than by the broken contract he would have been entitled to if he had served his time out. The damages must depend on the kind of service to be performed and the wages to be paid, and allowance should be made for the time that would probably be lost before similar employment could be obtained. In some pursuits it may be almost certain that the dismissal of a person at a particular season will throw him entirely out of employment for the residue of the year; whilst in other pursuits similar employment could readily be obtained elsewhere on the same or better terms ; and therefore the amount of damages is a question for the jury under all the circumstances of the case. In Smith v. Thompson, 8 C. B. 42, a clerk, who had been engaged under a contract for two years, having been wrongfully dismissed after one quarter’s service, brought an action for such wrongful dismissal, and the jury having awarded him damages equal to a year’s salary, the court refused to interfere with the verdict. This form of action treats the contract as continuing, but the action on a quantum meruit treats the contract as rescinded, and, therefore, it is said that in the action for a wrongful dismissal the wages due up to the time of discharge can not be recovered, but a count for wages may be added, and in that way the plaintiff may recover in one suit all that he is entitled to. The plaintiff in this case by his suit has affirmed the contract, but being an infant he had the right to avoid the special agreement, which was executory and for personal services, and recover a reasonable compensation for the work which he did. (Lowe v. Sinklear, ante, p. 308.)

The defendant asked two instructions to the effect that the plaintiff could not recover unless the jury found that he was entitled to contract on his own account, and unless his father had given his consent that he might work for himself. The obligation which the law imposes on the father to maintain his infant children gives him the right to the custody of their persons and to the value of that labor and services during their minority. But a father may emancipate his son and relinquish any claim to his services, and when he does so the child will be entitled to the fruits of his own labor until the father sees fit to resume his authority. (Burlingame v. Burlingame, 7 Cow. 92; Corey v. Corey, 19 Pick. 29; Tillotson v. McCrillis, 11 Verm. 479; Jenison v. Graves, 2 Blackf. 450.) The permission of the father to the son to work for himself may be inferred from circumstances, and the fact that a minor is suffered to leave his parent’s house and go abroad to shift for himself ought to be satisfactory evidence of the parent’s consent to the son’s receiving and enjoying his own wages; otherwise he would be without the means of procuring bread. It was in evidence in this case that the plaintiff’s parents resided in another state ; and as it would not be presumed that he was from home without leave, it would be inferred as a matter of necessity that he had the right to work for himself in order to obtain a living. The defendant’s instructions then ought not to have been given without proper qualifications.

As the case will be remanded, it may be observed that the remarks which fell from the witnesses about the state of the weather and the condition of the plaintiff’s clothing at the time he was discharged, were irrelevant and improper; for neither the plaintiff’s right to recover nor the defendant’s right to dismiss him depended on considerations of that kind.

Judge Napton concurring,

the judgment will be reversed and the cause remanded.


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    Newman, Respondent, v. Mays, Appellant.
    1. If relevant testimony with respect to an alleged written contract be introduced by either party to a suit, the other party is entitled to have said contract read in evidence.
    2. A judgment will not be reversed on account of the admission of irrelevant testimony, unless it is calculated to injure the party complaining of its admission.

      Appeal from Marion Circuit Cou/rt.

      Lipscomb and Anderson, for appellant.

      Dryden, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

The only error assigned is that the plaintiff was permitted to read in evidence a contract spoken of by the defendant’s witness in his testimony. If any part of the witness’ testimony was relevant, most certainly it was proper that the contract should be read under which he stated that he had made the payment. The plaintiff had the right, after the witness had testified in relation to the contract, to have it explained. If it had been in parol, he could have called for its terms and all its particulars; but being in writing, it was proper to produce it, and, after identifying it, to give it in evidence. But conceding that it was irrelevant, we can not see that it injured the defendant, and a judgment will not be reversed because irrelevant testimony is admitted, unless it is manifest that it was calculated to injure the party complaining of it.

The judgment will be affirmed;

the other judges concur.


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    The State, Appellant, v. Emnitz, Respondent.
    1. Where a justice of the peace takes a recognizance to keep the peace, he is required to transmit to the clerk of the proper court only the recognizance, and not the affidavit and warrant.

      Appeal from Bollinger Circuit Court.

   Napton, Judge,

delivered the opinion of the court.

This was a recognizance to keep the peace, taken before a justice and returned to the circuit court. Upon the appearance of the prosecutor and the defendant in the circuit court, that court dismissed the defendant and refused to hear any evidence from the prosecutor and condemned him to pay the costs; for what reason the record does not satisfactorily show. The reason stated in the record proper is that no indictment was found by the grand jury; but this was no indictable offence, or may not have been. The reason given in the bill of exceptions is, that no other papers were sent up from the justice except the affidavit, warrant and recognizance. The statute does not require any thing to be sent up except the recognizance. (R. C. 1855, p. 1158, § 7.) When the parties appear, it is made the duty of the court to examine the evidence ; and the recognizance taken may be discharged or a new one taken, as the circumstances may require.

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


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    Lee, Respondent, v. Howe, Appellant.
    1. Where there has been a part performance of a parol contract for the purchase of land, and the vendor puts it out of his power to specifically perform his contract by selling the land to a bona fide purchaser without notice, although there would be no remedy by action at law for damages inasmuch as the contract is by parol, equity will entertain jurisdiction of a bill for compensation.

      Appeal from Jefferson Circuit Court.

    The petition in this cause sets forth substantially that in the month of November or December, 1854, plaintiff purchased of one Jarvis a certain tract of land for $550; that he gave to said Jarvis three several promissory notes, payable in March, 1855, July, 1855, and January, 1856; that Jarvis executed and gave to plaintiff an agreement in writing whereby he agreed to convey said tract to plaintiff when the latter should pay said notes ; that Jarvis put plaintiff in possession of said land, and that he, plaintiff, made lasting and valuable improvements upon the same; that three or four months after said purchase, the defendant Howe, with plaintiff’s consent, purchased said notes of said Jarvis, and received from the latter a conveyance of said land, upon an agreement and understanding that he was to stand in the place of said Jarvis and convey the land to plaintiff upon the payment of said notes ; that before the last instalment became due defendant agreed verbally to wait another year for the purchase money ; that after-wards, about the month of January, 1856, the defendant requested plaintiff to give him said agreement between plaintiff and Jarvis, promising to give him another bond ; that plaintiff, relying upon the good intentions of defendant gave the bond to him, but that defendant has failed and neglected to give plaintiff another bond; that defendant, on or about April 2, 1856, sold and conveyed said land to one Yose for the price and sum of $950. Plaintiff aslcs judgment for $400, being the excess of the proceeds of said sale over and above the purchase money due and owing by plaintiff to defendant.
    The cause was tried by the court without a jury, and a judgment was rendered in behalf of plaintiff for the sum of $866.75.

      Frissell and Green, for appellant.
    I. A proper construction of the written contract shows a conditional sale. The contract was forfeited by a failure to pay at the time stipulated. Equity will afford no relief. (2 Sto. Eq. 793, 376, 778, 1223, 781; 4 Kent, 147.) The contract being forfeited, Lee had no interest in the land, and could therefore have no interest in the money arising from the sale of it. The contract being forfeited, the vendor ceased to be a trustee of the land for the vendee. Time was material in the contract. There was no consideration for the agreement to postpone the payment for a longer time. (See 1 De Gex & Smale, 444; 1 Jac. & Walk. 419 ; 3 Madd. 441.)

      Noell, for respondent.
    I. The vendor was a trustee for the vendee as to the title to the land. The cestui que trust can appropriate to himself any profit which the trustee may make out of the land, feowe’s retaining the notes shows clearly that there was no intention to cancel the agreement. Lee continued in possession by his agent long after Howe got hold of the agreement.
   Napton, Judge,

delivered the opinion of the court.

The sale of the land by the defendant to Yose, who appears to be a purchaser for a valuable consideration and without notice of any claim of the plaintiff, has put it entirely out of the plaintiff’s power to go into a court of equity and ask for a specific performance.

As the title bond is executed by Jarvis and not by the defendant, the plaintiff can bring no action at law upon the bond for damages. There was however a parol agreement, as admitted in the answer and proved on the trial, between Jarvis, plaintiff and defendant, that the latter would convey to plaintiff upon the payment of the notes executed for the purchase money and assigned to defendant. This therefore seems to bo a case in which the plaintiff may resort originally to a court of equity for compensation. (Denton v. Stewart, 1 Cond. Ch. 258; Phillips v. Thompson, 1 John. Ch. 149; Parkhurst v. Van Cortland, ib. 273.) The case of Denton v. Stewart is denied by Lord Cottenham to be law in Sainsbury v. Jones, 5 MyIne & Craig, 1; but it is quoted with approbation by Chancellor Kent in the two cases cited above, and fully sustained by Judge Story in his Treatise on Equity. (2 Sto. Eq. § 798.) The principle is also fully maintained by the supreme court of Massachusetts in the more recent case of Andrews v. Brown, 3 Cush. 134. Judge Story says that courts of equity ought not to entertain bills for compensation except as incidental to other relief, but the party should be left to his remedy at law for damages. “ But,” he adds, “ where no such remedy lies at law, there a peculiar ground for the interference of courts of equity seems to exist in order to prevent irreparable mischief, or to avoid a fraudulent advantage being taken of the injured party. Thus, where there has been a part performance of a parol contract for the purchase of lands, and the vendor has since sold the same to a bona fide purchaser, for a valuable consideration, without notice; in such a case, inasmuch as a decree for a specific performance would be ineffectual, and the breach of the contract, being by parol, would give no remedy at law for compensation or damages, there seems to be a just foundation for the exercise of equity jurisdiction.” This case, thus hypothetically stated by Judge Story, is precisely the case now under consideration. The contract between plaintiff and defendant was a parol one, and the plaintiff could not maintain an action for damages on it at law, as the statute of fraxxds would prevent it. As ho was in possession of the land, and had put valuable improvements on it, he could clearly enforce it in equity by a decree for a specific performance, if the defendant had not, by selling the land to a third person, put this remedy beyond his reach. The defendant must therefore be allowed to retain the profits of his speculation, which he made whilst occupying the position of a mere trustee for the plaintiff, unless the plaintiff is allowed his bill for compensation.

The title bond of Jarvis, which the defendant verbally agreed to assume, is in the ordinary form, and there is nothing in its terms to lead to an inference that payment on the precise day specified in the notes was considered material. Had this, however, been the understanding of the parties, as is alleged in the answer, the testimony shows that payment on the day was waived by the defendant before the day when the last note fell due.

The possession of the title bond by the defendant with the plaintiff's assent would certainly go far to create an implication of an abandonment of the contract by the plaintiff, unaccompanied with any circumstances of a counteracting character. But there was evidence to show that the plaintiff had not abandoned the possession, but had a tenant on the land and had left an agent to superintend its management. Besides, the retention of the plaintiff’s notes would seem to be a circumstance totally inconsistent with the idea that even the defendant considered and understood the trade to be can-celled ; and this retention of the notes is also a strong circumstance to confirm the plaintiff’s explanation of the manner in which and the reasons for which the title bond was delivered to the defendant. If the title bond had been given up with a view to cancel the bargain, why did the defendant retain the notes ? How can such conduct be reconciled with the attempt to prove that the contract was abandoned and the bond given up ? With the concurrence of the other judges, the judgment is affirmed.


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    Blodgett, Respondent, v. Greene, Appellant.
    1. Where, in cases arising nnder the practice act of 1849, facts are set up in an answer by way of equitable defence to the action and not by way of set-off) the plaintiff is not required to reply.

      Appeal from, St. Louis Circuit Court.

    This was an action brought in the year 1854 by Daniel Blodgett on a bill of exchange for five hundred dollars drawn by Nelson Blodgett on Cheever & Co. (of which firm defendant was a member) and accepted by them. The defendant in bis answer alleged that the bill sued on was the property of Nelson Blodgett and not of the plaintiff; that Nelson had endorsed it to the plaintiff in order that suit might be brought in the name of the plaintiff, against whom the defence which defendant has against Nelson Blodgett might be unavailing, and for the purpose of defrauding defendant; that Nelson Blodgett was and is indebted to the defendant in more than two thousand dollars, as shown by a judgment against him still unsatisfied in the St. Louis court of common pleas; that the bill was transferred to plaintiff long after its maturity, without consideration and upon the sole condition that Daniel should sue defendant thereon for Nelson Blodgett’s use ; that the bill of exchange was given in part payment of a loan which Nelson Blodgett had made of Cheever & Co. and for which he was to give them a deed of trust on real estate in Minnesota ; that he did execute a deed of trust, but before it could be recorded Daniel Blodgett placed of record a deed to himself of the same land, the taking of said deed by Daniel being a contrivance to cheat Cheever & Co. ; that Cheever & Co. had become liable for part of this loan to other persons to whom Nelson had given orders; that on discovering the fraud they determined to pay no more of this loan, and so refused to pay this draft or bill; that the Blodg-etts are brothers and reside in Minnesota. The answer prays that said bill of exchange be ordered to be delivered up to be cancelled; that the said Nelson Blodgett and said Daniel Blodgett be ruled to answer the allegations of the answer and show cause why said bill should not be surrendered to defendant; that process be awarded to make Nelson Blodg-ett a party to the suit. To this answer there was no reply.
    At the trial the plaintiff admitted the existence of the judgment against Nelson Blodgett as stated in the answer. The defendant moved the court to give judgment for the defendant upon the set-off in the answer. The court overruled the motion, and in its finding found that the bill sued on was drawn and accepted as stated in the petition; that at the time of its acceptance defendant G-reene was a member of the firm of Cheever & Co.; that the bill was endorsed to plaintiff; that it was duly presented and payment refused; “ that plaintiff is entitled to judgment against defendant for the amount of said bill, together with damages on the principal sum specified therein at the rate of ten per cent, &c. No other facts.”

      Gantt, for appellant.

      Knox & Kellogg, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The defendant can not complain that the court did not give judgment on the matter set up by him in his answer for want of a reply. The matter relied on as a set-off was not pleaded as such, but was stated as an equitable answer; and the prayer was appropriate to such a defence. The matter not having been set up as a sehoff, it would operate as a surprise on the plaintiff to hold that it was admitted, because there was no reply to it. No doubt but that out of the facts stated in the answer the defence of a set-off might have been framed, but the defendant using it in another way and concluding his answer with a prayer appropriate to such a use, he can not complain that a portion of his answer was not treated as a claim to a set-off. At the time of the beginning of this suit there was no statute allowing the defendant to set up a counter claim to the plaintiff’s demand. Unless the counter claim consisted of a set-off which could be pleaded to an action for money, it could not be pleaded. Of course the defendant could make any equitable defence, but that did not require a reply. The defence in this case being an equitable one, and not an answer setting up a set-off, did not require a reply.

It is averred in the petition and is not denied in the answer that the plaintiff was the holder of the bill. Whether he was a bona fide holder was a fact submitted to the court, and it was found that the plaintiff was the legal holder of the bill. There is nothing in the finding of the facts which should induce this court to disturb the judgment, especially when the evidence for the defendant is taken into consideration. After stating the facts on which the judgment is founded, the finding proceeds, “ no other factswhen the record is looked into, this phrase is sufficiently significant.

Under our statute the holder of the bill was allowed ten per cent, damages, as it was drawn at a place without this state and within the United States.

The other judges concurring, the judgment will be affirmed.


author: Napton, Judge, Scott, Judge.

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    Manny et al., Plaintiffs in Error, v. Logan, Assignee, Defendant in Error.
    1. The term “ voluntary,” as applied to conveyances within the act concerning voluntary assignments (R. C. 1852, p. 202), means voluntary as opposed to compulsory ; a conveyance to a creditor in trust for himself as well as the other creditors of the assignor is a voluntary assignment within the meaning of said act.

      Error to Marion Circuit Court.

    On the'30th of January, 1858, one Samuel W. Riggs, being largely indebted, executed a deed of trust of certain described real and personal property to one Logan as trustee. Certain debts of said Riggs to various parties, among others to Logan, the trustee, were recited in this deed, and the trustee was directed therein to pay said debts in their order, and when all said specified debts were paid to hold the residue of the proceeds for the benefit of all the creditors of the assignor, to be apportioned pro rata among them. The present proceeding is an application, under section 26 of the act concerning voluntary assignments, on behalf of certain creditors of said Riggs, for a citation directed to said assignee to appear and show cause why he should not file an inventory and give bond, &c., or be dismissed from his trust. A citation issued. The assignee answered admitting his acceptance of the trust and that he had not filed an inventory, but denied that he was bound to do so. The court dismissed the proceeding on the ground that the conveyance was not a voluntary assignment within the meaning of the act concerning voluntary assignments, and refused to require Logan to file an inventory. The plaintiffs were not named as creditors in the assignment.

      Dryden, Lipscomb and Porter & Harrison, for plaintiffs in error.
    I. The deed from Riggs to Logan was a “ voluntary assignment” in the sense of the first section of the act concerning voluntary assignments. (See Burrill on Assign. 5; 10 Paige, 461; 8 Sumn. 345 ; 26 Mo. 322.)

      Pratt and McCabe, for defendant in error.
    I. This was not an assignment for the benefit of creditors in the general. The creditors whose debts are secured by it are those named in the deed. The plaintiffs in the present proceedings are not named therein. It was not a voluntary assignment within the act concerning voluntary assignments. Logan was a creditor and his debt was secured.
   Napton, Judge,

delivered the opinion of the court.

This was an application by the plaintiffs, claiming to be creditors of one Riggs — who had assigned his goods and lands to Logan for the benefit of certain creditors named, and afterwards for the benefit of creditors generally — to compel the trustee Logan to proceed under our statute, file his inventory, give bond, &c. The claim was resisted on the ground that the assignment was for value, and not therefore a voluntary one under our statute, and that Logan, the assignee, was one of the creditors.

The assignment is unquestionably within the provisions of our statute. It is for the benefit of all the.assignor’s creditors, though an attempt is made to classify and give preferences to some. All assignments of this character which have any validity as against creditors not named, if there are any such, must be founded on a valuable consideration; but if the creditors named are bona fide, that is sufficient to support the instrument. (19 Mo. 17.) Whatever may be the proper meaning of the term voluntary used in our statute, it certainly was not intended to exclude from the operation of the law all assignments which were founded on a valuable consideration. The term is probably borrowed from the English books, where assignments in bankruptcy were sometimes created by operation of the law. The fact that Logan, the trustee, is a creditor does not take the assignment out of the statute. The only effect it could have would be to authorize the court to appoint another trustee. The other judges concurring, judgment reversed and cause remanded.

Scott, Judge.

I concur in reversing the judgment. The term “ voluntary” is applied to assignments to distinguish them from such as are made by the compulsion of the law, as under statutes of bankruptcy and insolvency, or by order of some competent court. (Burrill on Assignments, 5.)


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    Barron, Appellant, v. Alexander, Respondent.
    1. Where a vendor knows the existence of a latent defect in an article sold by him, and sells the same for a sound price without disclosing the defect to the vendee, he is guilty of a fraud; such fraud may be set up as a defence to an action founded on a note given for the price of the article sold; it is not necessary that there should be any express warranty or representation as to the quality of the article sold.

      Appeal from Franklin Circuit Court.

      Holmes and Romyn, for appellant.

      C. Jones, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The defendant sets up in his answer to the plaintiff’s petition, which is founded on a note given for the price of a slave, that at tlve time of the sale the slave was diseased, which was known to the plaintiff and which he fraudulently concealed from him.

Where a vendor sells a defective article, knowing the existence of the defect, for a sound price, and does not disclose it to his vendee, he is guilty of a fraud, and such fraud may be set up as a defence to an action founded on a note given for the price of the article. In such case it is not necessary to the defence that there should be any warranty or representation as to the quality of the goods. The rule suppressio veri est suggestio falsi applies. Knowingly to conceal a defect in goods when selling them for a sound price is a gross fraud. This principle is well settled and has heretofore been recognized and acted upon in our courts. (McAdams v. Cates, 24 Mo. 223.) There was no error in the court’s instructions on this subject.

The affidavit as to the misconduct of a juror was entirely too vague and-indefinite to found any action of the court upon it. The other judges concurring, the judgment will be affirmed.


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    Yates, Respondent, v. Brackenridge, Appellant.
    1. "Where there is any testimony which tends to support any of the issues in a cause, it is error to instruct the jur-y that there is no evidence before them.

      Appeal from St. Louis Cou/rt of Common Pleas.

      Breckenridge & Page, for appellant.

      Gantt, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

Wo think that the evidence offered by the defendant tended to show the truth of the answer as to a partial failure, and the circumstances that led to the execution of the note; and the instruction was therefore erroneous that declared there was no evidence on the subject. (Rippey v. Friede, 26 Mo. 523.) A party resisting the payment of a note on the ground that it was obtained by fraud or without consideration is not bound to show what occurred at the time of its execution by a witness who was present, but in the absence of more direct proof may establish his defence by circumstances.

The other judges concurring, the judgment will be reversed and the cause remanded.


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    Gibson et al., Respondents, v. Lewis, Appellant.
    1. In an action of forcible entry and detainer the jury returned the following verdict: “ We, the jury, find the defendants guilty in manner and form as charged in plaintiffs’ complaint; and that they took possession of the premises the 15th of November, 1854; and that they have and recover of and from the defendants damages at the rate of $2.16£ per month for the unlawful detention of said premises.” Held, that this verdict, though informal, was sufficient to authorize thereon a judgment for restitution of the premises, and for an amount as damages equal to double the gross amount of the rents and profits at the rate of $2.16i per month up to the time of trial.

      Appeal from Butler Circuit Co-wrt.

    Noell, for appellants.
    I. The verdict was legally insufficient to warrant the judgment. The judgment should have been arrested.

      Bland & Coleman, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

This was an action of forcible entry and detainer, and on the trial in the circuit court the verdict was as follows: “We, the jury, find the defendants guilty in manner and form as charged in plaintiffs’ complaint, and that they took possession of the premises the 15th of November, 1854 ; and that they have and recover of and from the defendants damages at the rate of I2.16J per month for the unlawful detention of said premises.” The verdict is informal, but it is evident that the jury found the defendants guilty of a forcible entry on the 15th of November, 1854; that the premises had since then been detained, and that the plaintiffs ought to recover damages at the rate of $2.16J per month since the forcible entry. On this verdict the court rendered judgment of restitution and that the plaintiffs recover as damages 1169.52, but no sum was named as the monthly rents and profits to accrue from the day of the verdict until restitution should be made.

The defendants made a motion in arrest of judgment, which was overruled; and the only question here is whether the verdict will support the judgment.

Questions like this one ought never to arise, because they are so easily avoided. The court .had authority to correct the verdict in matters of form in presence of the jury; and, besides, the statute not only describes all the elements of a verdict in an action like this, but furnishes two forms — one to be used in the event that the jury find for the plaintiff, and the other in the event they find for the defendant; (R. C. 1855, p. 790, § 18,19;) and, in a case where the verdict must be different from the usual form, both forms as given by the statute could be handed to the jury — one to be signed after filling the necessary blanks if they find for the plaintiff, and the other to be returned if they find for the defendant. The seventeenth section provides that in all cases of a verdict for the complainant, damages shall be assessed as well for waste and injury committed upon the premises, as for rents and profits due and owing up to the time of finding the verdict, and the verdict shall also contain a finding of the monthly value of the rents and profits of the premises. After judgment tlie plaintiff may be delayed by the defendant in getting possession, and the object of the last clause of the section is to fix a sum, which is doubled by the court, that the plaintiff will be entitled to receive, in addition to the damages, to cover the time he is kept out of possession from the day of the verdict until restitution is made. The sum found as the aggregate of the damages will include the damages for waste and injury, and also for rents and profits from the time of the entry to the trial; but the jury may not find that any waste and injury have been committed, and in that case the damages will only be for the rents and profits. The jury in this case did not find any damages on account of waste, but found that the plaintiff was entitled to recover rents and profits from November 15, 1854, to the time of the trial in May, 1858, (three years and five months and a half,) at the rate of $>2.16£ per month, which produces the sum of 189.84; and though the verdict is informal in omitting to state the result, it can be ascertained and rendered certain by a simple operation in arithmetic. The law directs that judgment shall be given for double the sum assessed by the jury, and it will be observed that the judgment on this verdict is for a less sum than the plaintiff was entitled to.

The judgment does not declare the monthly rents to which the plaintiff would be entitled from the time of the verdict until restitution of the premises, and the plaintiff will therefore lose the right to demand any rents since the trial, and can only receive on the execution restitution and the damages with interest; but the defendant gains by this omission and can not complain of it.

The complaint filed before the justice is set out twice in the record. In one place the forcible entry is stated to have been on the 6th December, 1853, and in the other on the 6th December, 1854; but the year is immaterial; and admitting that the plaintiff could only recover the rents from 6th December instead of 15th November, the judgment is still for less than double the amount the plaintiff was entitled to, counting from the 6th of December.

The other judges concurring, the judgment will be affirmed.


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    The State, Defendant in Error, v. Fugate, Plaintiff in Error.
    1. The law presumes the innocence, not the guilt, of an accused person; it is error to instruct a jury that in order to find a verdict of guilty it is not necessary that they should be satisfied of the defendant’s guilt to the exclusion of a reasonable doubt, but that if they believe from the evidence that the defendant is guilty they should so find, although they may entertain a reasonable doubt.

      Error to Shelby Circuit Court.

    This was a prosecution for an assault upon one Margaret D. McGee. The court instructed the jury as follows: “ 1. If the jury find from the evidence in the case that the defendant laid hands on Mrs. McGee and kissed her without her consent, they will find him guilty and assess a fine against him not exceeding one hundred dollars and not less than one dollar. 2. In order to find a verdict in this case, it is not necessary that the jury should be satisfied of defendant’s guilt to the exclusion of a reasonable doubt; but if the jury believe from the evidence that the defendant is guilty of the charge against him, they should so find, although they may entertain a reasonable doubt.”
    The jury returned a verdict of guilty, and assessed the fine at one hundred dollars.
    Carr, for plaintiff in error.
    Howell, for defendant in error.
   Napton, Judge,

delivered the opinion of the court.

The first instruction given for the State in this case is correct, but the instructions which follow, if they are not misunderstood, conflict with established rules of evidence, and, indeed, with natural .justice. The jury are told that it was not necessary for them to be satisfied of the guilt of the defendant beyond a reasonable doubt, in order to justify a ver-diet against him; but if they believed from the evidence that the defendant was guilty, they would so find, although they might entertain a reasonable doubt.

What degree of faith the court might think to be consistent with reasonable doubts is not explained, and the propositions might need some metaphysical ingenuity to reconcile, but, if the instruction is capable of explanation at all, it must be understood to give the State the benefit of all doubts, and raise the presumption of guilt against the defendant until it was removed by satisfactory evidence to the contrary. This is not the law even in civil cases, but it is just the reverse. When a plaintiff charges that a defendant owes him a hundred dollars, he must prove it, and if he leaves it in doubt whether the debt be due or not, the defendant is to have the benefit of such doubt; and the law in cases of doubt leaves the parties where it finds them. If the debt is admitted and payment is pleaded, the payment must be shown, as the presumption will be that the debt continues until the contrary appears. So the law in criminal trials presumes a man’s innocence until the contrary appears, and does not presume his guilt until he shows his innocence. These are truisms, but they seem to be overturned by the instructions reported to have been given in this case.

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


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    Cayton, Plaintiff in Error, v. Hardy, Defendant in Error.
    1. Acts of a partner wholly outside the scope of the partnership business and known to he so by the person dealing with such partner are not binding upon the other partner.
    2. In determining whether particular acts of a partner are within the scope of the partnership business and binding upon all the partners, if the partnership articles are not decisive of this question, the previous dealings and acts of the partners or of any of them, the length of time these acts have continued, &c., may be considered.

      Error to Ralls Circuit Cou/rt.

    This was an action to recover possession of two yoke of oxen. It appeared in evidence that said oxen were a portion of the stock of a farm held and leased by the plaintiff. The defence relied on was that said stock was owned by said plaintiff Cayton and one Robertson as partners, and that Robertson sold said oxen to defendant. The defendant introduced in evidence the following agreement: “ Francis M. Cayton, the party of the first part, agrees to furnish a tract of land large enough to make a good stock farm ; also agrees to furnish farming utensils sufficient for use of said farm; and also agrees to furnish four brood mares or more as he may choose, and one hundred (more or less) stock cattle; and also agrees to furnish one hand to work on said farm. And the party of the second part agrees to take charge of said farm and stock, and work and pay strict attention to the same ; also agrees to improve said land sufficient for all the stock that may be on it, at the expense of each party ; and for such services the party of the first part agrees to give the party of the second part one-third of the proceeds of the farm and stock after replacing all the stock put on the farm in the first place. The parties are to live on the farm. This copartnership to last five years, unless one of the parties becomes dissatisfied. Witness our hands and seals. [Signed] Francis M. Cayton (seal). David C. Robertson (seal).”
    The two yoke of oxen in controversy composed a portion of the stock of the said farm furnished by said Cayton. They were sold by Robertson to the defendant at the price of forty dollars per yoke. This price was paid. The court, at the instance of the defendant, instructed the jury as follows: “ The written instrument read in evidence and signed by Francis M. Cayton and David C. Robertson constituted Cay-ton and Robertson partners as to third persons of the cattle and stock and proceeds of the farm named in said written instrument; and if the jury believe from the evidence that Robertson sold the cattle in controversy to the defendant, and that they were when so sold a part of the stock named in the said writing, such sale to Hardy by Robertson was good in law to divest the title of Cayton, and the verdict should be for defendant, unless the jury should further find from the evidence that said Robertson sold said stock with the intent to defraud the plaintiff, his copartner, and that defendant purchased with notice of such intent.”
    The plaintiff took a nonsuit, with leave, &c.

      Porter & Harrison and McCabe, for plaintiff in error.
    I. The court erred in instructing the jury that the instrument of writing read in evidence constituted Cayton and Robertson partners. It did not constitute them partners either inter sese or as to third persons. (Colly, on Part. 14, 19 ; 4 East, 144; 3 Wils. 40 ; 15 Mo. 481; 15 S. & R. 137 . 17 Mass. 197; 14 Pick. 192; 12 Conn. 69; 18 Wend. 175 ¡ 20 Wend. 70 ; 17 Ves. 404 ; 4 B. & Or. 867 ; 1 Rose, 191 ■ 18 Wend. 184; 6 Mete. 82; 6 Halst. 181; 15 Ills. 31; 4 Paige, 148.)

      Lamb & Lakenan, for defendant in error.
    I. Cayton and Robertson were clearly partners, both as between themselves and as to third persons. Each party had the power to dispose of the stock of the farm aside from the power he would have as partner. The agreement clearly contemplates sales of the stock and proceeds.
   Napton, Judge,

delivered the opinion of the court.

The instruction of the court in this case declared the articles of agreement produced in evidence to constitute a partnership between Cayton and Robertson, as to third persons, of the cattle and stock and proceeds of the farm, and that the sale to defendant was valid, unless the jury believed there was fraud on the part of Robertson, and that the defendant knew of and participated in the fraud.

That the written instrument executed by Cayton and Hardy constituted a partnership between them is by no means clear. The intention would rather seem to be to constitute a mere agency in Robertson, with a compensation for his labor and services in a sum proportioned to the profits. (Pennie v. Hankinson, 6 Hals. 181.) But the parties themselves call it a partnership, and as Robertson was to share the nett profits and not the gross profits, the court may have been right in declaring them partners upon the authority of Dry v. Boswell, 1 Camp. 329; and at all events partners as to third persons. (Story on Part. § 60; Chase v. Barrett, 4 Paige, 148; Grace v. Smith, 2 Black. 988.) The subject is one upon which the distinctions are very refined, and we are not satisfied that the instruction was wrong in this particular. Nor does the question seem very material; for, whether there was a partnership or a mere agency, the question still remains whether the sale was authorized either by one species of agency or another.

Each partner has undoubtedly full power to dispose of the entire right of all the partners for the purposes of the partnership and in the name of the firm. Unless the contract provides otherwise, the partners are joint owners of all the capital stock, funds and effects belonging to the partnership, and each partner may dispose of his capital or fund for purposes within the scope of the partnership. Chancellor Kent says that in ordinary cases, and in the absence of fraud on the part of the purchaser, each partner has the complete jus disponendi of the whole partnership interest.” But in every contract of this sort it is manifest that we must look to the scope of the partnership business to see whether the partner is violating his obligations, and whether the purchaser was likely to be innocently misled. The following observations of Judge Story, in this connexion, are so pertinent and just that we transcribe them : “ The real difficulty,” says Judge Story, “ in many of these cases (speaking of engagements which ought to bind the partnership) is to ascertain what contracts, engagements and acts are properly to be deemed within the scope of the particular partnership, trade, or business ; for these are not exactly the same in all sorts of trade or business. On the contrary, in many cases, rights, powers and authorities over partnership property and partnership concerns exist by usage, or by general understanding, or by natural implication, which are wholly unknown in others. To answer the inquiry, it is not enough to show that in other trades or other business, certain rights, powers and authorities are incident thereto and may be lawfully exercised by such of the partners, but we must see that they appropriately belong to or are by usage or otherwise implied or incidental to the particular trade or business in which the partnership is engaged.” (Story on Part. § 173.)

It is manifest that the agreement in this case, whether regarded as constituting a copartnership or an agency, did not confer on Robertson any power or authority to sell the farm, the brood mares, the stock cattle, or the farming utensils ; that the sale of these things was not within the scope of the business ; and that the anticipated profits were not expected to be created by such sales at all, but from the proceeds of the farm, farming implements, stock, &c., in the shape of grain, fatted cattle, or other produce. That Robertson had no authority to sell the work oxen derived from the agreement is clear ; and, if the agreement constituted a partnership, neither had Cayton. Such sales were not the business contemplated. This consideration alone does not however make the defendant liable ; for, if he had reason to believe from the ordinary course of their dealings that such authority did exist, he ought not to bear the loss. The question therefore ought to be put to the jury, not merely whether this sale was a fraud upon the part of Robertson and made with the knowledge and participation of Hardy, but whether it was wholly outside of the scope of the partnership business, not merely as indicated by the articles of agreement, of which the public could be presumed to have no notice, but as determined by the conduct of the parties to it in dealing with their neighbors. If it was, that circumstance ought at least to have put the purchaser upon inquiry. The previous dealings and acts of Robertson and Cayton, or of either, the length of time these acts had continued, the price at which the cattle sold, are all circumstances which may be given in evidence, and may show, and would no doubt satisfactorily show, upon whom this loss should fall. The nonsuit will be set aside and the case remanded for trial.

Judgment reversed and cause remanded ;

Judge Richardson concurring. Judge Scott absent, through indisposition.


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    Gillett, Appellant, v. Camp & Wife, Respondent.
    1. At law there will be no implication of a promise on the part of a stepdaughter to pay her step-father for necessaries furnished by the latter during the minority of the former.

      Appeal from Warren Circuit Coart.

    This was an action by Philo Gillett against Beverly Camp and Elvira Camp, his wife, to recover compensation for money paid and expenses incurred by him in the education and maintenance, before her marriage, of the defendant Mrs. Camp. At the close of the evidence, the court at the instance of the defendants gave the following instructions: “ 1. If the jury believe that the plaintiff intermarried with the mother of Elvira Camp, and that she, being of tender years, was taken into the family of plaintiff and remained a member thereof from the time of said marriage up to the death of her mother in 184T, and that the plaintiff during said marriage maintained and supported the said Elvira, the law will not imply a promise on the part of the said Elvira or her husband to pay for said maintenance, and the plaintiff can not recover for such maintenance unless an express promise of payment has been proved to pay the same. 2. If the jury find that, after the death of the mother of the said Elvira Camp, the plaintiff was appointed guardian of the said Elvira in the territory of Wisconsin, where the said Elvira resided, and that he so continued to act as her guardian by virtue of his appointment aforesaid, and while as such guardian he expended money for the necessary support, maintenance and education of said Elvira, these expenditures can not be taken into consideration by the jury, nor can they give a verdict therefor unless the jury find that the said Elvira or her husband have undertaken and agreed to pay the same ; these expenditures as between guardian and ward not creating a personal obligation on the part of the ward, and being alone chargeable against any funds coming into his hands belonging to said ward.”
    The plaintiff took a nonsuit with leave, &c.

      S. T. & A. D. Glover, for appellant.
    I. The court erred in giving the instructions asked by defendants. (3 Edw. Ch. 40 ; 9 Ala. 615; 2 Kent, 190; 2 Ashm. 332; 1 Kelly, 475 ; 1 Taml. 72.)

      Wells, for respondents.
    I. The law will not imply a promise to pay the step-child for his services ; nor will it imply a promise on the part of the child to pay for board, schooling, &c., when the child remains a member of the family of the step-father. (See 22 Mo. 439.)
   Scott, Judge,

delivered the opinion of the court.

This is a suit by a step-father for the expenses incurred in supporting and educating his wife’s child by a former husband. The old notion in England was, that, inasmuch as the widowed mother was bound to support her minor children, a man by marrying her assumed that with all her other obligations, and made himself liable for the support of her children by a former husband. There was no hardship in this, as at common law by the marriage all the wife’s goods became the property of her husband and he was entitled to all her earnings. Afterwards, the case of Tubb v. Harrison, 4 Term R. 118, determined that the step-father was not bound for the support and maintenance of his wife’s children by a former husband If lie adopted tbem into bis family and treated them- as bis children, be would be bound for necessaries furnished them. By a late statute in England (4 & 5 Will. IV) it is enacted that every man who shall marry a woman having a child or children at the time of such marriage, whether legitimate or illegitimate, shall be liable to maintain such child or children as part of his family, until they respectively attain the age of sixteen, or until the death of the mother of such child or children.

This is no case in which the question arises as to the circumstances under which a court would order the child’s income to be applied to its support, nor is it an application to appropriate a portion of a child’s estate to its support. There is here no fund under the control of any court to be applied in its discretion to the maintenance of infants, but this is an action at law in which the plaintiff must stand upon his legal rights. The doctrine of the courts of equity, in making appropriations in favor of the parents for the support of minor children when they have such an estate as will sanction such a proceeding, has nothing to do with this case. That such allowances are made gives no countenance to this action. Every one must see the danger to which the estates of minor children must be exposed, if step-fathers were permitted to recover from them, after they attain their majority, any account which they might make out against them for maintenance and support during their minority without the sanction of any court. He would make himself the judge of what is necessary, and without regard to the minor’s estate would run it in debt to an amount exceeding its value, and then would make the husband of a female minor liable for necessaries furnished her during infancy. So far as we can learn, the utmost length to which courts of law have gone in upholding claims of step-fathers against minor children by a former husband is to declare that if the second husband maintains such children, it is a good consideration for a promise by them when they come of age to repay the expense of their maintenance, especially when the second husband was a man of small substance and the children bad a competent provision to receive when they came of age, which was to accumulate for them in the mean time, and he made no application to chancery for an allowance out of the fund, as he might have done. (Cooper v. Martin, 4 East, 76.)

The fact that the plaintiff stood in the nominal relation of guardian to the wife of the defendant Camp can not better his condition. His accounts as guardian should be settled in the proper court; and if nothing belonging to the ward has ever come to his hands as guardian, out of which he can retain enough for his indemnity, his claim does not thereby become the foundation of an action at law, for it was his wrong and folly to be contracting debts on account of his ward when he knew there was nothing in his hands to satisfy them. If the estate of the ward was in the hands of a curator distinct from the guardian of the person, then the application for allowancesshould have been made to the court having the control of the curator.

Judge Napton concurring, the judgment will be affirmed. Judge Richardson not sitting, having been of counsel.


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    Madden’s Heirs, Appellants, v. Madden’s Administrator and Heirs, Respondents.
    1. By the rules of chancery practice in force prior to the passage of the practice act of 1848, bills of exceptions were as necessary as in common lawsuits.
    2. Whether an administrator shall be charged with interest on money in his hands belonging to his intestate’s estate is to be determined by the circumstances of each case; he is not to be so charged as a matter of course.

      Appeal from, Washington Circuit Court.

    This was a bill in chancery filed March 11, 1847, by certain of the heirs of Tomas Madden, senior, deceased, against certain other of the heirs of said Madden and his administrator. The object of the bill was to bring all the heirs into hotchpot, to obtain a settlement of the accounts of the administrator, a sale of the lands of the intestate, and an equalization of the heirs in the distribution of the estate. The facts being exceedingly complicated, it is deemed unnecessary to state them. The ground of the decision sufficiently appears in the opinion of the court. Both plaintiffs and defendants appeal.

      Frissell, for appellants.
    I. The court erred in dismissing the supplemental bill.
    II. Interest was erroneously charged against the administrator.

      T. C. Johnson, for respondents.
    I. If any error was committed in the matter charging the administrator with interest upon moneys received by him, the error was in his favor and not to his prejudice. (Duns-comb v. Dunscomb, 1 Johns. Oh. 509 ; id. 538, 618 ; Strong v. Wilkerson, 14 Mo. 116.) The court committed no error in refusing leave to file a supplemental bill.
   Scott, Judge,

delivered the opinion of the court.

This case was a suit in chancery commenced in 1847, under the old practice. Under that practice, bills of exceptions were as necessary in chancery as in common law suits. The accounts settled by the court or by a commissioner appointed by the court could only be reviewed here on objections and exceptions to the opinions of the court. When an account was settled by a commissioner, exceptions were taken, and they were stated in the report together with the evidence and reported to the court, who decided the points raised before the commissioner if they were renewed, and on that decision an exception was taken as in all other cases. There is nothing in this record but the final decree which can be reviewed by this court. The calculations and evidence on which that decree is based not being preserved, there are no means of ascertaining its correctness.

Surely the case of Strong v. Wilson, 14 Mo. 116, did not intend to introduce any new method of settling administrator’s accounts. Whether an administrator is to be charged with interest on the money in his hands belonging to an estate is a question to be determined by the circumstances of each case as it arises. He is not to be charged with interest on money in his hands as a matter of course. On the final settlement, or before if required to do so, the court will determine whether an administrator is properly chargeable with interest. To charge him in all cases with interest on money in his hands without regard to circumstances would be monstrous injustice. The money due on a note bearing interest, when collected, would of course cease to bear interest. But by maladministration the administrator might make himself liable for interest on that as well as for any other money in his hands. Debtors of the estate would be chargeable with interest until their debts were paid, and the administrator on collecting them would charge himself with the amount and interest would cease. If a distributee of a solvent estate owed it a bond bearing interest, whether the distributee would be charged with interest might depend on circumstances, but that is not a question for the administrator to determine. In collecting such a bond, he could only be guided by the face of it.

There was no error in the court’s refusal to permit Frissell to file what is termed a supplemental bill for the partition and sale of lands in Ralls county, which were a part of Madden’s estate. We do not see the principle on which the hill is founded. Besides, the bill professes ignorance of the state of the title and of the quantity of the land sought to be sold and divided. It seems Madden held an undivided interest in a tract of land situated in Ralls county, which was confirmed by the act of Congress of July 4th, 1836. Most of the land had been sold by the United States before the confirmation, and certificates of new location have issued, but it is said they have not been delivered. The quantity of the land sold by the United States has not been ascertained. As the certificate or certificates of new location have not been delivered, how is it possible to get along with such a case ?

The other judges concurring, the judgment will be affirmed.


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    Perkins, Plaintiff in Error, v. Woods et al., Defendants in Error.
    1. In proceedings instituted under the revised code of 1845 to foreclose a . mortgage, the administrator of the mortgagor was the only necessary party; his heirs were not necessary parties.

      Error to Lincoln Circuit Court.

      W. Porter, for plaintiff in error.
    I. The heir was a necessary party. The foreclosure in no way affected the right of the heir to redeem. The demurrer was improperly sustained. (7 Mo. 374; 1 Powell on Mortg. 282; 7 Cranch, 69 ; 2 Gfallis. 371; 2 Mason, 181; 11 Wheat. 103 ; id. 304; 1 Stark, on Ev. 191; 2 N. H. 190; 1 Wheat. 6; 1 Munf. 373 ; 2 H. & Munf. 139 ; 14 Johns. 79; 4 Day, 431; 2 Sto. Eq. § 1026 ; 2 Hare, 237 ; 1 Black. Comm. 89, 90.) The present case can be distinguished from that of McCord’s Adm’r v. Riley’s Adm’r, 21 Mo. 285.

      S. T. & A. D. Glorer, for defendants in error.
    I. The heir of the mortgagor was not a necessary party. (1 Mo. 691; 16 Mo. 85 ; R. C. 1845, p. 750 ; Miles v. Smith, 22 Mo. 499 ; McCord’s Adm’r v. Riley’s Adm’r, 21 Mo. 285.)
   Napton, Judge,

delivered the opinion of the court.

This was a proceeding by the heir of a mortgagor to redeem the land mortgaged. A foreclosure had been obtained in a suit by the mortgagee against the administrator of the mortgagor; and the plaintiff, not having been a party to that proceeding, claims that her interest was not sold. A demurrer was filed and sustained, and the only question is whether the heir is a necessary party to a foreclosure of a mortgage. The point was expressly decided in Riley’s Adm’r v. McCord’s Adm’r, 21 Mo. 285. Before the revised code of 1845, a mortgage could not be foreclosed without making the heirs of the mortgagor parties. The fourth section of the act of 1845 says that where the mortgagor is dead, his administrator shall be made a party. The seventeenth section says that the judgment in such event shall be for the debt and damages and costs, to be levied on the mortgaged property, and, if that is insufficient, it shall have the effect of a general judgment against the administrator. The object of the statute is to facilitate the foreclosure of mortgages in case of the death of either party, and the act can admit of no other construction than that, where the administrator is a party, the land mortgaged may be levied on under the judgment of foreclosure and sold. But if the law is to be held to have left it still essential to make the heir a party in order to affect his interest, the statute is only calculated to entrap purchasers; for as the administrator has no interest in the land, a sale of his interest amounts to nothing. If any thing in the way of substantial protection to the rights of minoi’s could be gained by the restricted interpretation of the act contended for in this case, it would certainly afford good reason for hesitation in adhering to the construction which has already been adopted by the court and which the more obvious meaning of the statute appears to require. But we can see no ground for entertaining such an opinion. The administrator is more likely to be in possession of any information, which would produce a defence, than the heir. It is a mere question of the form of a proceeding, and if any other parties are declared necessary than those expressly stated by the statute, great inconveniences and much injustice may be expected, greater probably than would result from an adherence to the construction given years ago.

The judgment is affirmed ;

Judge Scott concurring. Judge Richardson not sitting, having been of counsel.


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    Ross, Defendant in Error, v. Clark et al., Plaintiffs in Error.
    1. To authorize the lender of a chattel to recover its value of the borrower, it must appear that it has been lost or destroyed through the negligence of the latter or has been converted to his use; there can be no recovery as for a conversion of the chattel, where the evidence merely shows that there was a loan and a failure on the part of the borrower to return the thing borrowed ; a demand must be shown.

      Error to Ralls Circuit Cowrt.

    The following is the instruction referred to in the opinion of the court: “ The court instructs the jury that if the jury believe from the evidence and circumstances proved in the cause that the defendant David Clark authorized his son James Clark to borrow plaintiff’s bull for him the said David, and that the said James as agent of the said David did borrow said bull from plaintiff for his father, the law implies a contract upon the part of the said defendant David Clark to return said bull within a reasonable time, and the jury ought to find a verdict for plaintiff against said David, unless they further find from the evidence that said David did return said bull to plaintiff within a reasonable time after said borrowing.” The court also refused the following instruction asked by the defendants: “ Unless the jury find that the plaintiff, before this suit was instituted made a demand on the defendants for the return of the bull and defendants refused or neglected to return said bull, plaintiff can not recover, and the jury will find for defendant.” The jury found the plaintiff “ entitled to the sum of twelve dollars for the bull, to be paid for by David Clark, who borrowed said animal.”

      Porter & Harrison and Wellman, for plaintiffs in error.
    I. There was no proof tending to show any actual conversion of the property loaned; a demand and refusal were necessary to make out a prima facie case. The instruction given was erroneous. The court also erred in refusing the instruction asked by defendants. (2 Greenl. on Ev. § 644.)

      Southworth & Lancaster, for defendant in error.
    I. The instruction given by the court contained no error. The instruction asked by defendants was properly refused. (Story on Bailm. § 257.)
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff sued the defendant for the value of a bull alleged to have been loaned to the defendant and not returned. It may be inferred from the bill of exceptions that the defendant borrowed a bull belonging to the plaintiff, which has not been returned; but it does not appear when the bailment was made, nor that the time has expired for which it was made, nor whether a demand was ever made, nor whether the animal was dead or lost, or had ever been claimed or converted by the defendant.

In the case of a gratuitous loan, the borrower is bound to take proper care of the thing borrowed, and to restore it at the proper time; and if no particular time is agreed on, it is his duty to return it in reasonable time; and, as the loan is exclusively for his benefit, he is bound to extraordinary diligence and is responsible for slight neglect in relation to the thing loaned. But the lender can not at his pleasure convert a loan into a sale without showing any thing more; and, to authorize him to recover the value of the thing loaned, it must appear that it has been lost or destroyed by the borrower’s negligence, or that he has converted it to his own use. Where however a demand is made, the party must return the property or give some account how it is lost. When the circumstances show a loss by the defendant’s negligence or establish a conversion, a demand is not necessary, but generally when the defendant in the first instance became lawfully possessed of the goods and the plaintiff' does not show an actual conversion or assumption of property by the defendant, he must prove a demand and refusal. (2 Saund. 1160; 1 Chitt. Pl. 180.) If the borrower fails in his duty to return the 'thing loaned in a reasonable time, that fact by itself will not entitle tbe lender to recover its value in money. The second instruction therefore given by the court was erroneous.

Judge Napton concurring, the judgment will be reversed and the cause remanded. Judge Scott not sitting.