author: Soott, Judge,

text:
    The State, Respondent, v. Phillips & Ross, Appellants.
    1. Under the revised code of 1855, where two defendants, jointly indicted, elect to be tried together, they are not entitled to a panel of more than thirty-six jurors.
    2. A., B. and C. were jointly indicted for the murder of one D. — A. as principal in the first degree, B. and C. as aiders and abettors; A. was put upon his trial first and was acquitted : held, that as against B. and C. the question of the guilt or innocence of A. was still open ; that his acquittal did not operate their discharge ; that, though A. was the actual perpetrator of the homicide, the record of his acquittal would be inadmissible in evidence in favor of B. and C.
    3. The proceedings upon an application for a change of venue in a criminal case, and the order of the court granting the same, are inadmissible in evidence against the accused.
    4. Where evidence introduced is competent as against one of two d and incompetent as against the other, the party as against wh¿¡foít k competent should, on the failure of the court of its own m^tiolpit^in-struct the jury as to its application and effect, move the court so |o instruct; , if the court refuse to grant such motion, it is error; if no sucjp|$ijJií4>epí' (f| made, there is no error. ,/j

    5. The interval between the perpetration of a homicide and the ^gh'^.ó|f^^;,:^,l perpetrator may be so short that there can arise no well grounngd apprehension of personal violence : in such case evidence of excitement'e&isSfig^;#?’ at the time of the arrest is incompetent, and may be properly ruled out 1 when offered to repel any presumption of guilt arising from the fact of the flight.
    6. Where the defence, for the purpose of discrediting a witness for the prosecution, causes to be read certain portions of depositions of such witness taken before the coroner on the inquest and before the committing magistrate, the prosecution may then read the whole of such depositions.
    7. A., B. and C. were jointly indicted for the murder of D. — A. as principal in the first degree, the actual perpetrator — B. and C. as aiders and abettors. A. was put upon his trial first and acquitted ; upon the trial of B. and C. the court, after instructing the jury as to the law of murder in the first degree, gave the following instruction: “ If the jury believe from the evidence that A. wilfully shot and killed the deceased without premeditation or without the intention to consummate by his act the death of the deceased, and that B. and C. were then and there present aiding, abetting and assisting A. to do the aforesaid act, without premeditation or malice aforethought on their part, then you will find the defendants guilty of murder in the second degree, and assess their punishment,” &e. Held, that this instruction was misleading and erroneous.

      Appeal from Madison Circuit Court.

    The facts are stated with sufficient fullness in the opinion of the court.
    Z7. Wright, for appellant.
    I. The venire was not a legal body, being deficient in number. (R. C. 1845, p. 878-9, secs. 34 and 35 of art. 6 of act regulating the practice and proceedings in criminal cases.) By the common law each defendant on a joint trial is entitled to the full number of his challenges. (2 Hale P. C. 263-8 ; 2 Hawk. P. 0. ch. 41, § 9; Oo. Litt. 156; United States v. Marchant, 12 Wheat. 580; Concldin’s treatise, 654; 1 Chitt. C. L. 636 ; 6 Ohio, 87.) Our statute gives this right.
    H. The acquittal of Sullivan Phillips, the principal in law and fact, operated in law a discharge of the defendants from the indictment; and the court ought to have discharged them on the motion. It is granted that the acquittal of one charged as principal does not necessarily discharge those charged as aiders and abettors. It may be that though charged as principal he was acquitted because he did not do the deed, and in fact had no knowledge of the transaction. It is granted also that one charged as principal may be found guilty as aiding and abetting, and vice versa. There would not be a variance in such case. But there can be no aider and abettor without a guilty principal. The acquittal of Sullivan Phillips, who killed Robert G. Watson, made it impossible that either of the defendants could criminally aid and abet in that act. No man can be charged criminally with aiding and abetting any act in itself lawful. (See Hunt v. Simonds, 19 Mo. 583 ; R. C. 1845, p. 397, secs. 17 & 18.) Though the aider and abettor — or accessory at the fact — is called a principal in the second degree, and though his offence is punished as is that of the principal in the first degree, yet his guilt is dependent crime as essentially as that of the accessory before or after the fact. Without a 'guilty-principal there can be no guilty accessory at the fact. The aider and abettor becomes a principal by making the act of the principal hÍ3 own act. The analogy is perfect between the derivative guilt of accessories before and after the fact, and the dependent guilt of the aider and abettor. As the acquittal of the principal discharges accessories both before and after the fact because the guilt of each hangs on the guilt of the principal, so the acquittal of the principal in the first degree, (I mean the acquittal of the principal in fact — the real party who did the deed — not he who is merely charged as such,) for the same reason operates a discharge of the principal in the second degree. (See 1 Ckitt. C. L. 256 ; 1 Hale P. 0. 438-9 ; Foster, 349 ; Arehb. C. P. 4; 2 Waterman’s Archb. 249 ; 2 Hale, 223 ; 1 Leach, 360 ; 1 Wood, k Min. 231; 8 Carr. & Payne, 616: Wallis’ case, 3 Salk. 334; Rex v. Taylor k Shaw, 1 Leach, 398.; Benson v. Offley & Lippon, 2 Show. 510; 3 Mod. 121; 8 Salk. 38 ; Rex v. Towle, Sadder & Slater, Russ. & Ry. 314; 3 Price, 145; 1 Price Exch. 329.)
    III. If any technical principle was in the way of the discharge on motion, the result was clearly attainable in the other mode adopted. The offer to introduce the record and proceedings of the trial and acquittal of the principal, Sullivan Phillips, had upon the the indictment in this cause, with additional and explanatory facts, was improperly rejected. In this country and in England the record of the conviction of the principal is legal evidence on the trial of the accessory before and after the fact. Foster C. L. 365; 2 Starkie Ev. 7 ; United States v. Wood, 3 Wheeler’s cases, 325; Smith’s case, 1 Leach, 288; Rose. O. E. 174 ; 10 Pick. 477 ; 2 Bailey, 66 ; 2 Stalk. Co. 237.) So it is competent for the prosecution on a trial of a principal in the second degree to introduce the record of the ■ conviction of the principal in the first degree. (Wharton on Horn. 162 ; Wharton’s C. L. 119; 7 Georgia, 2; Wallis’ case, 3 Salk. 334.) So long as the doctrine is maintained by this court that parties jointly indicted, though tried separately, are not evidence for or against each other, it is manifest that the conviction or acquittal of the principal can not be wholly res-inter alios acta. It is only because they are parties to the record that the incompetency arises. The record of conviction is held not to be conclusive of the guilt of the principal. The reason is that the accessory is a party to the record, and by his relation must stand or fall with his principal; yet he has not had control of the trial of his principal — for that purpose he has had no day in court. He may traverse the finding, but the onus is upon him. The record of acquittal of the principal must however on every ground of authority be conclusive against the State.
    IV. It was error to permit the State to read to the jury the application for a change of venue from New Madrid county, and the affidavits of defendants in support of it.
    V. The court erred in permitting Edmund Shelton to detail, as against Eoss, what passed between himself and Presley Phillips touching the discharge of the witness as overseer of Phillips, and the reasons therefor, a month or more before the homicide and in the absence of Eoss; also what passed between witness and said Presley on the Monday before the homicide, neither Eoss nor Sullivan Phillips being present.
    VI. The court rejected proper evidence offered to rebut any presumption of guilt arising from the flight. A man may fly from anticipated violence, and he may show the subsequent excitement to justify the anticipation.
    VII. It was manifest error to permit the State to read in rebuttal the whole of the evidence of Shultz taken before the coroner and magistrate. The extent of the right was to read such portions of each document, and only such as explained, modified, or qualified that portion of the witness’ evidence which had been read by the defence, if such there were.
    VIII. The instructions contained error. By the instruction touching murder in the second degree, murder is declared possible without malice aforethought.

      Ii. <ft. Clover, (circuit attorney,) and J. W. JVoell, for the State,
    cited Wharton on Horn. 160 ; State v. Eley, 2 Brevard, 888 ; The State v. Posey, 4 Strob. 127 ; Rex v. Taylor, 1 Leach, 398 ; Benson v. Offley, 2 Show. 670 ; 3 Mod. 121 ; Rex v. Wallis, Salk. 334; 3 Price, 145 ; 2 Marsh. 465; Archb. C. P. 6 ; 1 East. P. C. 351; 1 Hale, 437, 615; Plowd. 100 a. ; Rex v. Home, 1 Leach, 473 : State v. Mair, 1 Coxe, 453 ; Foster, 551 ; Rex v. Borthwick, Dougl. 207 ; Rasinck’s case, 2 Yirg. Ca. 356 ; Huffman v. Commonwealth, 9 Rand. 685 : Rex v. Royce, 4 Burr, 207 ; 3 T. R. 105 ; Coal-heavers’ case, 1 Leach, 76 ; Regina v. Tyler & Price, 8 Carr. & Pay. 616.

       A motion for a rehearing was filed in this ease by H. A. Clover, of counsel for the State, on behalf of the State. A rehearing was requested upon the ground that, as the defendants could not be tried again for murder in the first degree, (they having been on the former trial found guilty of murder in the second degree, and by implication acquitted of murder in the first degree,) and as this court rules that “this was no case for an instruction as to the law of murder in the second degree,” there could be no propriety in remanding the cause for further proceedings, inasmuch as there was no offence for which, under the opinion of the court, the defendants could be put upon their trial, it clearly not being a case for an instruction upon the law of manslaughter in any of its degrees. The court was requested to review that portion of its written decision which is as follows: “ It follows then that this was no case for an instruction as to the law of murder in the second degree ; for there can be no doubt, unless we stultify ourselves and refuse to permit our judgments to be influenced by considerations which govern all the rest of mankind, that Sullivan Phillips intended to kill Watson. Nor was this one of those accidental homicides which we have seen was designed to be reached by the provision in relation to murder in the second degree. We can not conceive the ground on which the court put it to the jury as a matter of doubt that the death of Watson was intended by Sullivan Phillips. It is true the jury alone could determine the fact of intention, and it is not a matter of law that such was his intent. But in matters of this kind, the court should not by its instructions invite a doubt when nothing is so unreasonable as to suppose that any can exist.” The O’Blenis case was referred to as a case in which a conviction of murder in the second degree was had under instructions as to the law of murder in that degree, although a deliberate and intentional killing was more clearly proven in that case than in this. The motion was overruled.

   Soott, Judge,

delivered the opinion of the court.

The first point made in this case is, that the venire was not a legal body, being deficient in number. The indictment was for murder, and was preferred on the 15th day of January, 1856. The defendants elected to be tried separately ; and, under the supposition that such would be the case, a venire for thirty-six jurors was issued and returned. Afterwards the defendants elected to be tried jointly, and the panel previously returned in the cause was offered to be used, when the defendants objected, claiming that they were entitled to a panel of fifty-six jurors. This claim was disallowed by the court and the defendants excepted. The counsel for the accused relied on the provisions of the code of 1845, in support of their exception. In this we are of opinion that they are in error. As has been stated, the indictment was found in January, 1856, and the trial took place at the September term following. In the interval the code -of 1855 took effect, viz., on the 1st May, 1856. The 16th section of the act entitled “An act concerning the revised statutes,” approved December 6th, 1855, provides that “ no action, plea, prosecution, civil or criminal, pending at the time any statutory provision shall be repealed, shall be affected by such repeal, but the same shall proceed, in all respects, as if such statutory provisions had not been repealed, except that all such proceedings had after the taking, effect of the revised statutes shall be conducted according to the provisions of such statute, and shall be in all respects subject to the provisions thereof, so far as they are applicable.” Now the fifth section of the sixth article of the act entitled “ An act to regulate proceedings in criminal cases,” approved December 8th, 1855, provides that “ when several defendants are tried together, they shall join in their challenges.” The defendants then having elected to be tried jointly, a panel of thirty-six jurors was all to which they .were entitled.

The second point made by the accused is that the acquittal of .'Sullivan Phillips, the principal in the first degree, operated in 'law the discharge of the defendants from the indictment, and the court ought to have discharged them on motion. In order fully to comprehend this point, it may be necessary to premise that Sullivan Phillips, Presley Phillips and John L. Ross were jointly .indicted for the murder of Robert G. Watson, Sullivan Phillips was'charged as principal in the first degree, or as the actual perpetrator of the deed, and Presley Phillips and John L. Ross were charged as being present aiding and abetting in the commission of the crime. Sullivan Phillips was put upon his trial and acquitted. It -appeared from the evidence on the trial that he actually fired the gun by whose shot Watson was killed. Afterwards Presley Phillips and J. L. Ross, who were charged as aiders and abettors, were put upon their trial, and, producing the record of the acquittal of Sullivan Phillips, they claimed their discharge. This motion was overruled, and the action of the court thereon is now to be reviewed. The question was raised in two ways on the trial below, once by a motion for a discharge before any evidence was heard in the cause, and af-terwards by an offer of the record of the acquittal of Sullivan Phillips as evidence in chief, accompanied with explanatory facts. The same .principle is involved in both the forms adopted, and it will not be necessary to advert to any difference caused by the mode of presenting the question. In Chitty’s Criminal Law, 256, it is said a man may be principal in one of two degrees. A principal in the first degree is he that is the actor or actual perpetrator of the crime, and in the second degree, he who is present aiding and abetting the fact to be committed. Principals in the second degree were formerly denominated and regarded as accessories at the fact. And it seems that he who actually committed the crime was alone guilty as principal, and those who were present aiding and assisting were but in the nature of accessories, and could not be put upon their trial until the principal was first convicted. This distinction has however been long since exploded,'and now the stroke is constructively given by'all who consent and who are present at its infliction; and they may be put upon their trial though the actual slayer is neither outlawed nor found guilty. In order, however, to make the aiders and abettors thus highly culpable, they must be present, aiding and assisting to the felony with a felonious intent. In an indictment for murder, if several be charged as principals, one as principal perpetrator, and the others as aiding and abetting, it is not material which of them be charged as principal in the first degree as having given the mortal blow; for the mortal injury given by any one of those present is in contemplation of law the injury of each and every one of them. If the actual perpetrator of a murder should escape by flight, or die, those present abetting the commission of the crime may be indicted as principals ; and though the indictment should state the mortal injury was committed by him who is absent or dead, yet if it be substantially alleged that those who were indicted were present at the perpetration of the crime and did kill and murder the deceased by the mortal injury so done by the actual perpetrator, it shall be sufficient.” These are well established principles of the criminal law, and it would seem to follow as a corollary from them, that there is no distinction between a principal in the first degree and a principal in the second degree. They are both equally guilty of the same offence i£ they are guilty at all. There is no acces-sorial or defendant guilt between them. They stand and are to be regarded as though both were indicted as principals in the first degree. What advantage then can a principal in the second degree derive from the acquittal of a principal in the first degree ? If two are jointly indicted for a felony, and they elect to be tried separately, if he that is first tried should be acquitted, what benefit can the other derive from the verdict and judgment ? This is an analagous case. The error of the proposition of the defendants’ counsel that the acquittal of Sullivan Phillips, the principal in law and fact, operated in law the discharge of the defendants, consists in the assumption of the fact of the acquittal of S. Phillips, or, perhaps it would be more perspicuous to say, in the appropriation of the fact of his acquittal to their benefit. If Sullivan Phillips did kill Watson, and if the killing was lawful or excusable, it is clear that those who assisted him are guilty of no crime. But in such case the abettor, on his own trial, must establish the innocence of the actual perpetrator of the deed by other evidence than a verdict of his acquittal. The acquittal of him who actually did the deed, as between him and the State, is final and conclusive. But by what right do the abettors appropriate to themselves the ben-enfit of that acquittal as evidence in their behalf ? As to them it is res inter alios acta. Had the actual perpetrator been convicted, the abettors would not have been affected by it; nor can they derive any advantage from his acquittal. On the trial of the defendants, the sole inquiry is not whether they assisted S. Phillips, but whether, in the intendment of law, they are guilty of the murder of Watson ; and the jury who tries them weighs the conduct of S. Phillips as an actor in the scene, and though he may have been acquitted, yet his acquittal enures solely to his own benefit, and will not affect the question of the guilt or innocence of those then on trial, which will be determined uninfluenced by the verdict rendered for or against any other party to the indictment. The office of that verdict is fully discharged as long as it protects Sullivan Phillips from a subsequent trial, and can impart no aid to others joined in the same indictment, who must undergo their trial and show their innocence without any assistance derived from a verdict to which they were not parties. The authorities cited do not support the proposition that it is competent for the prosecution on the trial of a principal in the second degree to introduce the record of the conviction of the principal in the first degree. The case mostly relied on for this is that of Studsill v. The State, 7 Georgia, 2. The law of this case is by the same court expressly denied in the. ease of Armstead v. The State, 18 Georgia, 707. The only authority Wharton, in his work on criminal law, cites in support of this doctrine, is that of Stud-sill— the authority of which we have seen was subsequently denied. The case of Wallis, 1 Salk. 384, shows that if the record of acquittal was in evidence (and how it was does not appear) it availed nothing. Eor Lord Holt ruled that though the indictment be against the prisoner for aiding A., who was acquitted, yet the indictment and trial of this prisoner is well enough, for who actually did the murder is not material; the matter is that the murder was committed, and the other is but a circumstance, and all are principals in this case; therefore if the murder be proved it is well enough.

We do not consider that the case of Regina v. Tyler, 8 Car. & Payne, 616, is at variance with the rules of law as above stated. It only decides that where a person of unsound mind is the actual perpetrator of the homicide, others can not be charged as aiders and abettors. In that case there were two counts in the indictment. In one of them the prisoner was charged as principal in the first degree; in the other as principal in the second degree ; and the actual perpetrator of the crime being a madman, and the prisoner being apprised of his ill-intentions, the jury was directed to find him guilty under the count in which he was charged as principal in the first degree.

We see no warrant in the law for reading, against the protest of the accused, the proceedings on the application for the change of venue and the order thereupon. Whether there was’ a change of! venue or not, or whether it was properly awarded or not, was a question with which the jury had nothing to do ; and it is surprising that, against tbe objection of the accused, the attorney for the State should have done such a thing. What motive could there be to such an act but the hope of reproducing that very state of things from which the law in its mercy had rescued the defendants ? It was making the law guilty of the absurdity of awarding a change of venue, and at the same time depriving the party of the advantage expected' from it — a fair and impartial trial.

The next point made in the cause is, that the court erred in permitting Edmund Shelton to detail (as against Ross) what passed between himself and Presley Phillips touching the discharge of the witness as overseer of Phillips ; also in suffering to go to the jury, as evidence against Ross, the conversation testified to by the same witness between himself and Presley Phillips on the Monday preceding the fatal occurrence. It is usual for courts, when evidence proper in itself is given, but which is incompetent against one party or for certain purposes, to explain at the time to the jury the proper application and effect of the evidence received. If the court fail to do this voluntarily, the party should move a direction to the jury as to its application and effect, and on the refusal of the court to give such direction, should except. But if he fail to do this, as the evidence was competent for some purposes or against some of the parties, it is obvious that no assignment of error can be based upon its admission. In such eases, as the evidence is strictly admissible, this court has not relieved a party against whom it may have been prejudicial when he has failed to ask a direction as to its application and effeet. This has been the constant practice.

Further complaint is made that the court rejected proper evidence offered by the defendants, to rebut any presumption of guilt arising from their flight. Upon an examination of the record, we are not prepared to say that there was any error in the court below in rejecting evidence in relation to the flight of the defendants. It appears that they fled before there was any demonstration of excitement against them. If their flight had been occasioned by a fear of popular excitement already existing, they might have shown the existence of such excitement as a reason for their evasion ; the continuance of that excitement after their arrest might also have been shown as an evidence of its strength. But if the defendants fled before there' was any demonstration of public excitement against them, it ean not be said that their flight was caused by a state of things which did not exist until it had already taken place. No doubt a man may fly from anticipated violence, and he may show the subsequent excitement to justify the anticipation. But the interval between the doing of the deed and the flight may be so short that there can not arise a well grounded apprehension of personal violence, especially as the defence assumes that the act was done suddenly and without premeditation. Unless the conscience itself gave the alarm under such circumstances, it would be difficult to account for the flight. If it was induced by the advice of others, it may be shown.

Another alleged error of which complaint is made is, that the court permitted the State to read in rebuttal the whole of the evidence of the witness Shultz taken before the coroner and magistrate. Shultz-, it appears, was examined as a witness for the State. The defendants afterwards, for the purpose of discrediting the witness, read portions of his depositions taken before the magistrate and coroner. The State then read the whole of these depositions. We see no error in this course. As the defendants read parts of the depositions with a view to contradict the witness, the prosecution was entitled to read the whole of them, in order to show his consistency. (Harrison v. Rowan, 8 Wash. C. C. 580; Temperly v. Scott, 5 Car. & Payne, 841; Cow. & Hill’s notes, 934-5.)

It is next objected that erroneous instructions were given to the jury. After instructing as to what constitutes murder in the first degree, the jury were told that “ if they believe from the evidence that Sullivan Phillips wilfully shot and killed the deceased without premeditation, or without the intention to consummate by his act the death oí the deceased, and that Presley Phillips and John L. Ross were then and there present aiding, abetting, and assisting Sullivan to do the aforesaid act, without premeditation or malice aforethought on their part, then you will find the defendants guilty of murder in the second degree.”

Our act of assembly provides that “ every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree; and that all other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.” It has been a matter of some difficulty to ascertain the object and design of this provision. It is plain that it was intended to affect some change in the law in regard to the crime of murder as it stood at common law. By that law wilful and intentional murders and constructive murders, or murders where the law implied malice and there was no intent to kill, were of the same grade. These offences, however different in enormity, were subject to the same punishment. He who shot at a fowl with a felonious intent, and thereby accidentally killed a man, was punished in the same manner as he who took away his neighbor’s life by poison or by lying in wait. No doubt it was the intention to make all murders, where malice was only implied, and where there was no intention to effect death, murders in the second degree, which were subjected to a milder punishment than murder in the first degree ; and it is no argument against this conclusion, that the same statute has made some constructive murders manslaughter in some one of its degrees ; for,' notwithstanding these provisions, cases may arise which would not be covered by them. The question is, have the provisions respecting murder in the first and second degrees gone further and made any murder, which by the common law was wilful or intentional, only murder in the second degree, unless deliberation or premeditation be shown to have existed ? It is well known that our statute on the subject of murder in the first and second degrees is a transcript of that prevailing in the state of Pennsylvania. As the interpretation which that statute had received was well understood at the time of its adoption into our code, we may reasonably suppose that it was to be received as it had been interpreted in the state from which it was borrowed. There it is well settled, under their statute, that to constitute murder in the first degree the unlawful killing must' be accompanied with an intent to take life. That this is the distinguishing feature between murder in the first degree and murder in the second degree — murder as it exists since the statute, and at common law ; that when it appears that the killing was done with an intent to take life, and there is no circumstance of justification, excuse or extenuation recognized by law, the crime is murder in the first degree ; that the intention is the essence of the crime, and that killing a person with circumstances that evidence a depravity of heart is murder in the first degree ; that the intention is still the essence of the crime, and its guilt since the law, as well as before, consists in taking away the life of a human being with circumstances which show a cool depravity of heart, or a mind fully conscious of its views and designs. Whenever this is the case — whenever it appears from the whole evidence that the crime was at the moment deliberately or intentionally executed, the killing is murder in the first degree. It is sufficient to constitute this crime if the circumstances show the existence of a wicked and depraved disposition of mind, or, as it is expressed in the law, if wilfulness and deliberation are proved, though they arose and were generated at the period of the transaction. Though the act of assembly which defines the crime of murder in the first degree makes use of strong language, yet the act has received a construction contemporaneous with and as fixed as the act itself. (Commonwealth v. Green, 1 Ash. 299; Commonwealth v. Dougherty, tried in 1807, 2 Vir. Cas. 86, 87.) In Smith’s trial, p. 89, 90, the court says: “Under murder in the second degree, mentioned in our act of assembly, may be included those cases of constructive murder which are often stated in the English law boohs, and which in that country are followed by capital punishment. A man shooting at a tame fowl with intent to steal it, kills a person : that in England is murder, punishable with death ; but in Pennsylvania would be murder in the second degree. An officer of justice or a private man is killed in endeavoring to part two persons whom he sees fighting : this in England is murder ; but in Pennsylavania it would be murder in the second degree. A person throws a large stone or a piece of timber from a house into the street, where he knows many people are passing and repassing, and kills another: this in England is murder; but in Pennsylvania it would be murder only in the second degree. So a man in England riding in a road a. dangerous horse, apt to strike, happens to kill a person : in that country it is murder; but in Pennsylvania it is murder in the second degree.” There is in the state of Virginia a statute similar to our own, defining murder in the first and second degrees. In the case of Whiteford v. The Commonwealth, 6 Rand. 724, the court, on this subject, says: “ There are many instances in which the act would not be considered so wilful, deliberate and premeditated as to make it murder in the first degree, yet it would be murder at common law, and by the statute would therefore be considered as murder in the second degree. If a workman throws a stone or piece of wood from a house in a populous city into the street, where he knows people are passing and gives them no warning, and kills aman, it is murder; yet, if it is from criminal carelessness, instead of a wilful design to kill or to do great bodily harm, it is murder in the second degree. So if a person shoots at a fowl, with the intent to steal it, and kills a person, he is guilty of murder; but it wants the ingredient of a wilful- killing, and therefore is only in the second degree.” To the same effect is the opinion of Judge McGirk, in the case of Bower v. The State, 5 Mo. 380. “There are,” says the judge, “ several murders at common law, which do not come under the general description of the first degree. The first case is where the unnatural mother exposed a child in an orchard, which was in consequence destroyed by a kite. The next is, where the overseers of the poor neglected and refused to furnish food for a beggar and he died. The third is where a son wantonly exposed his sick father to the weather, so that he died. At common law all these cases would be murder. In these cases there is no supposition that there was an intent to kill, yet because the consequence was death, the offenders were holden to be guilty of murder. These eases therefore, and the like, are in my opinion those which constitute murder in the second degree.”

We therefore come to the conclusion that our statute concerning murder in the first and second degrees will receive the construction which accompanied' it when it was adopted into our code ; that under it the distinction between murder in the first and second degree consists in the intention; that where a homicide is shown to have been committed, and there was an intent to do the act, and there is no circumstance of excuse, justification or extenuation recognized by law, it is murder in the first degree ; that the quality of every homicide since the statute is to be determined by the rules of the common law, except so far as they are altered by the provisions concerning excusable or justifiable homicide and manslaughter, and the provision concerning murder in the second degree, which we have seen extends to those constructive murders known to the common law, where there was no intention to kill, and where the malice was implied.

It follows then that this was no case for an instruction as to the law of murder in the second degree ; for there can be no doubt, unless we stultify purselves and refuse to permit our judgments to be influenced by considerations which govern all the rest of mankind, that Sullivan Phillips intended to kill Watson. Nor was this one of those accidental homicides which we have seen was designed to be reached by the provision in relation to murder in the second degree. We can not conceive the ground on which the court put it to the jury as a matter of doubt that the death of Watson was intended by Sullivan Phillips. It is true the jury alone could determine the fact of intention, and it is not a matter of law that such was his intent. But in matters of this kind, the court should not by its instructions invite a doubt when nothing is so unreasonable as to suppose that any can exist.

As the case was not one for an instruction on the law concerning murder in the second degree, and as the defendants were tried for murder in the first degree, it may be thought that the defendants were not prejudiced by such instruction. This idea can not be sustained. We can not say whether the defendants should have been found guilty of murder as charged or not. The jury was improperly led away from that issue by an instruction which induced 'their conviction of the crime of murder in the second degree. They complain of that conviction, and have a right to have the judgment reversed if it has been obtained by undue means. But the instruction is erroneous in itself, even had the case been one for an instruction on the law of murder in the second degree. The jury were told that the defendants might be guilty of murder in the second degree without malice aforethought. Malice aforethought may be malice express or implied. So to say there may be murder without malice aforethought, is to say there may be murder without malice. Now there can be no murder in any degree without malice aforethought, express or implied. The instruction is in its terms inconsistent with itself. It directs the jury that if Sullivan Phillips xoilfully shot and killed the deceased without the intention to consummate by his act the death of the deceased, &c. Now this is the same as saying, if the jury believe that S. Phillips on purpose killed Watson accidentally ; for wilful means intentional, on purpose. Moreover, if the killing was unintentional on the part of Sullivan Phillips, it is not easy to see bow there could be aiders and abettors to it. Under the instruction as given, there was no escape from the verdict that was rendered, and as that instruction was erroneous, the defendants were entitled to a new trial.

Judge Ryland concurring,

the judgment will be reversed and the cause remanded.

Judge Leonard absent.


source: Caselaw Access Project

author: RyIiAND, Judge,

license: Public Domain

text:
    Herron, Respondent, v. Hornback, Appellant.
    I. Where in an action for entering plaintiff’s land and cutting down and carrying away his trees, a verdict is rendered in favor of the plaintiff in the following form : “ We the jury find for the plaintiff forty-three dollars and thirty-three cents:” held, that it is error to render judgment, under section first of the act concerning certain trespass, (R. C. 1845, p. 1068,) for treble the sum so found in favor of plaintiff.

      Appeal from Ralls Circuit Court.

      Lamb & Lakenan, for appellant.
   RyIiAND, Judge,

delivered the opinion of the court.

The question in this case involves the propriety of the judg-meut of the Circuit Court for treble the damages found for the plaintiff by the verdict of the jury. The action was for trespass 'committed by entering on the lands of the plaintiff, cutting down trees, splitting them into rails and boards, taking and carrying away the rails and boards ; also for splitting trees, which had been cut down by other persons, into rails, and carrying away the rails. The defendant answered, admitting that he had cut down some seven or eight trees and carried them away; but denied cutting any more. There was a trial by jury. None of the evidence is preserved, and none of the instructions saved. The jury returned the following verdict: u We the jury find for the plaintiff forty-three dollars and thirty-three cents.” The plaintiff’s counsel thereupon filed his motion for treble the damages found by the jury ; the court sustained this motion ; gave judgment for treble damages, and to this action of the court the defendant excepted, filed his bill of exceptions, and brings the case here by appeal.

This case comes fully within the decisions of this court heretofore made in the case of Ewing et al. v. Leaton et al., in 17 Mo. 465, and the case of Labeaume v. Woolfolk, 18 Mo. 514; and to the opinions in these cases we refer as deciding this. The verdict ought to have been for the value of t property injured, and then judgment for treble that value. In a petition like the present a general verdict without specifying the value of the injured property will not warrant the court below in giving judgment for treble the damages found. The judgment in this case must be reversed and the judgment entered here for the amount of the verdict only, viz., $44 33. The appellant to recover his costs in this court.

Judge Scott concurring ; Judge Leonard absent.


author: Scott, Judge,

text:
    Dunn, Appellant, v. North Missouri Railroad et al., Respondent.
    1. Where work and labor are performed upon, or materials furnished for, the construction of bridges and culverts upon the line of a public railroad authorized by an act of the state legislature, no lien upon said bridges and culverts is conferred upon the material man or laborer by the act of February 24th, 1843, (Sess. Acts, 1843, p. 83,) “ for the better security of mechanics and others erecting buildings, or furnishing materials for the same, in the city and county of St. Louis.”

      cAppeal from Si. Louis Land Court.

    This was an action by scire facias to enforce a lien alleged by plaintiff to exist upon certain culverts belonging to the North Missouri Railroad Company, for the construction of which plaintiff had furnished materials, and upon which he had performed work and labor. The defendants demurred to the writ on the ground that there was “ no - law authorizing a lien on the culverts of a railroad.” The demurrer was sustained.

      Bland & Colman, for appellant,
    cited Sess. Acts, 1843, p. 83 ; 5 Rawle, 313 ; Sess. Acts, 1857, p. 668.

      McClellan & Hillyer, for respondents.
   Scott, Judge,

delivered the opinion of the court.

The question in this case does not turn on the signification of the words, '“buildings or other improvements” in the first section of the ¡ ¡ of February 24th, 1843, for the security of mechanics and others erecting buildings or furnishing materials in St. Louis county. It might be conceded that those words are sufficiently comprehensive to include bridges and culverts, and still the question would recur, whether a material man or laborer, under the above mentioned act, has a lien for materials furnished or services rendered in the construction of a public railway authorized by an act of the general assembly.

Although railroad companies, in some respects, resemble .private corporations, yet, as they are organized for the public benefit, the state takes a 'deep interest in them, and regards them as matters of public concern. They are looked upon by the laws as corporations endowed with capacities for the promotion of the public good and for the diffusion of advantages to the state as a body politic. Our constitution requires that internal improvements shall forever be encouraged by the government of the state, and if is her right and duty to advance the commerce and promote the welfare of the people by making or causing them to be made. The establishment of the North Missouri Railroad is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community ; and an injury to it is a public injury ; and the public benefit is the ultimate end and purpose of all the powers and privileges conferred by its charter. The only principle on which the legislature could have authorized the taking of private property for its construction, without the owner’s consent, is that it was for the public use. After the immense responsibility the state has assumed in building this and other railroads for the public use and convenience, it would be unreasonable to suppose a power remained in any individual to deprive the public of the benefit contemplated by them. A lien, with a power of enforcing it by execution, would enable the lienholder to subject the portion of the road affected by it to execution, and the execution, to be effectual, must confer a title to a purchaser under it. A power to affect by liens to be enforced by executions on public buildings might put it out of .the power of the state to possess any public edifices. Would a mechanic or laborer under the lien law have a right to a lien for materials or services furnished in building a capitol for the state? Shall buildings intended for the public benefit be taken from the public so soon as they are completed, or their completion be prevented by a sale of them, and the state, be forever deprived of buildings for the accommodation of her agents ?

It is said that it is better to suffer a mischief which is peculiar to one than an inconvenience which may prejudice many. But this is no mischief to the plaintiff. He would subject the public to this great inconvenience, not because the public is in debt to him, not because he has not the same remedy for his debt that every other member of the community has, but that he may enjoy a privilege conferred on no other class in society. In some of the states, where there was no express exemption from taxation either in the charter of the company or the general law of ' the states, railways and works of a public character have beem exempted from taxation upon principles of public policy, (il Amer. Rail. Cas. 354.) In thus following out the consequences of the claim set up by the plaintiffs, we do not wish to be understood as expressing any opinion on the question, whether,, independently of a statute authority, a railroad built under the-authority of the state for public use can be sold under execution.

The subject of securing to laborers payment for work done-on railroads has not escaped the attention of the legislature. The act of 24th February, 1853, entitled u An act to authorize the formation of Railroad Associations, and to regulate the same,” by its 12th section makes provision for the security of laborers performing service on railroads.. Had the idea been entertained that the law of the 24th February, 1848, respecting, mechanics’ liens in St. Louis county, was applicable to railroads, the necessity of the provision above referred to would! not be so apparent. The other- judges concurring, the judgment will be afSrmed.


author: •Ryland, Judge,

text:
    Coffman et al., Respondents, v. Huck, Appellant.
    1. Coffman v. Huck, 19 Mo. 435, affirmed.

      Appeal from Ste. Genevieve Circuit Court.

    The court found the facts as follows : “ That Huck, the defendant, occupied the mill and used and enjoyed it for seven years and four months ; that the reasonable rents and profits of the mill for that time, at the rate of $450 a year, amounts to $8300 ; that Huck has expended for repairs of mill the sum of $1090, and in the erection of a dwelling-house near the same ithe further sum of $1000 — making in the aggregate $2090, and ■■which, deducted from the rents, leaves a balance due plaintiffs ■of $1210, for which judgment is rendered.”

      ■JVbell, for appellant.
    J. The court erred in the mode adopted to ascertain the -amount for which defendant was liable to plaintiffs. He was not in possession as a tenant or renter, and was therefore not ■■bound to pay even a reasonable rent. The plaintiffs’ right is an equitable one and extends only to the receiving back from .Huck what he himself had made by his occupation of the property. If Huck actually made nothing, then he was bound for nothing. If the mill had been idle during the whole time, the plaintiffs had no right to complain under the circumstances. ,(19 Mo. 435.)
    II. The finding of the facts does not correspond with the real issue in the 'cause, and was not warranted by the evidence.
    III. The court erred in vacating the commissioner’s report. That report strictly conformed to the law as laid down by this ■court in .this cause when heretofore determined.

      Frissell, for respondent.
   •Ryland, Judge,

delivered the opinion of the court.

'This case was before this court at our March term, 1854. It ■was reversed and sent back. The opinion then delivered is reported in 19 Mo. 435. We have again examined the case carefully, and also the principles set forth in the Opinion then delivered. We are satisfied -with the correctness of the decision then made, and the principles set forth and contained in the same, and they must govern and decide this case now.

In that opinion it is distinctly laid down that “ one who enters as a purchaser on lands is influenced by motives very different from those which actuate a tenant taking a lease at a certain rent, and he should not be chargeable as such when he loses his purchase without his fault. As not the least blame attached to the defendant’s conduct, and as there was no expectation of being charged as a tenant, he should be liable only for the profits he made on that portion of the land which really belonged to the plaintiff. So far as he was benefitted by the occupation, he was liable, and on no principle of law or justice should he be held to a more extended accountability.” The relation of landlord and tenant did not exist in this case. Nor will the principles of law recognized as existing between persons standing in that relation apply to this ease. “ The defendant Huck can only be held liable to the amount that he has been benefitted by the-occupation, as he has not paid the purchase money, and not for what a single witness may say was the annual value of the premises.” We again refer to our former decision, and say the principles in that must govern this case. We do not think the rule adopted by the referee was a proper one — that to compare the relative situations of Huck before and at the time he purchased, and seven years after when the contract was rescinded. Nor was the evidence of what persons supposed the annual rent of the mill ought to be worth the proper criterion to ascertain the benefit of the occupation. We can not pretend here to weigh the evidence, nor to say that any part of it was entitled to less credence than the rest. But taking it all to be worthy, we are compelled to doubt the correctness of the finding of the facts by the court.

We shall send the case back for a new trial, and direct that the evidence be confined to ascertain what the mill was worth to Huck — what the mill was worth, considering its condition, the seasons, and all the circumstances, to an ordinarily prudent and industrious man; and not what it ought to be worth per annum to a tenant who rented it alone and run it as leased property. The value of the house built by Huck being charged against the plaintiff, it is but reasonable to allow them rent for it during the time it was occupied by Huck and his family. In this case the defendant having been placed in his condition without any fault of his own, it is but fair and just, when the contract has been rescinded, to estimate the amount and value of improvements made and erected by the defendant, and to make him account for the benefits and profits received by him on account of the purchase. Now in doing this, the court is instructed to charge Huck for such benefits and profits as from all the facts and circumstances did accrue to him, or would under the like circumstances have accrued to an ordinarily prudent and industrious man.

Let the judgment be reversed, and the cause remanded;

Judge Scott concurring.


author: Ryland, Judge,

text:
    Jones, Respondent, v. Briscoe, Appellant.
    1. Where a father, upon the marriage of his daughter, delivers to her and his son-in-law a slave, and the slave remains in possession of the son-in-law for six years or longer, these are circumstances from which a jury may well find a gift of the slave to the daughter and son-in-iaw.

      Appeal from Ralls Circuit Court.

      Richmond, for appellant.

      Porter, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The questions in this case arise upon the instructions given to the jury, and also on those refused to be given. The facts show that the plaintiff Jones married Artemesia, the. youngest daughter of John Briscoe, sr. ; that when Jones and his wife moved home to house-keeping, Mrs. Jones took the negro woman Amanda along with them. The negro woman lived with Mr. Jones until her death, some five or six years after Jones and his wife set up house-keeping. The n.egro girl Tabitha, the child of Amanda, was born at Jones5, and after the death of Amanda, she (the girl) being some six or eight months old was taken to Mr. Briscoe’s to be taken care of. Before the marriage of Jones and Miss Briscoe, the negro woman was spoken of in the family as being the negro of Artemesia. The marriage of Jones and Artemesia Briscoe took place in 1835, and Mrs. Jones died in 1843. She left three children at her death; two were alive when this suit was tried. After the death of Mrs. Jones, her daughter Mary Jane Jones, then about five years old, went to her grand- father’s and was reared by her grand-parents. John Briscoe, sr., after this, died in the fall of 1854, having some four years before his death made a gift of the negro girl Tabitha, in writing, to his granddaughter Mary Jane Jones. When Mrs. Jones went home to live, she took Amanda with her. One witness states that there was nothing said about the terms on which Amanda was taken. In 1850, when Jones was about going to California, he sent a message to old Mr. Briscoe, by his son Wm. T. Briscoe, to know how much the old gentleman would charge Jones for keeping his daughter Mary Jane and the negro Tabitha. The old gentleman said, “ What does he want to know that for ? I will charge him nothing.” Old Mrs. Briscoe, a witness, said “ that when her daughter Artemesia was going off, she asked the witness if she was going to let her have a negro ? She told her she might take Amanda, but did not know how long she could keep her.” Witness said her husband knew she had sent Amanda to Mrs. Jones, and never objected to it. There was testimony to the effect that old Sir. Briscoe had said that he never intended Heath Jones to have Amanda. The plaintiff Jones claims the negro girl Tabitha as his property ; the defendant does not claim ber as his own, but as the property of Mary Jane Jones, she having been delivered to him as such to take care of and hire out for the benefit of Mary Jane Jones.

These are substantially the facts, and the following instructions were asked for by the plaintiff and given by the court : “ 1. If the jury believe from the evidence in the cause that Amanda, the mother of the slave in controversy, belonged to Artemesia, the daughter of John Briscoe, deceased, before and at the time of her marriage with plaintiff Jones, the title of said slave was by said marriage vested in said Jones, the plaintiff; and no declaration of said John Briscoe made, nor act done by him, after the said marriage, without the consent and agreement of plaintiff, could operate to revest said plaintiff of the title to said slave. 2. If the jury believe from the evidence in the cause that said Amanda (the mother of the slave sued for) was sent home with plaintiff and his said wife Artemesia, soon after their marriage, by said John Briscoe, (or by his consent and without objection on his part,) without any understanding then or before had between the plaintiff Jones or his said wife on the one part, and said John Briscoe on the other part, that it should be considered a loan to said Artemesia, the law presumes that it was a gift and vested the 'absolute title of said slave and her said child in plaintiff, and they should find for plaintiff. 3. The declaration or admission of John Briscoe and those of his wife in his presence, made before his said daughter Artemesia’s marriage with plaintiff, that the mother of the slave in question was his daughter’s slave, is evidence from which, if uncontradicted, the jury may infer that he had given her to his said daughter, and it is not indispensable that there should be positive evidence, either verbal or written, showing said gift. 4. If Jones, the plaintiff, held the negro woman Amanda for five years peaceably, continuously, claiming her or holding her as a gift from John Briscoe, and as his (said plaintiff’s) own, such possession of five years^ gave said Jones a valid title to said negro Amanda. 5. If the girl Tabitha was put into Mr. Briscoe’s possession by Mr. Jones, plaintiff, or bis order, to keep on account of its tender years for said Jones or bis wife, a title can not accrue by length of possession acquired in that way.”

The following instructions were also given by the court of its own motion : “6. If, after the negro girl in controversy was placed in the possession of John Briscoe, sr., the said John Briscoe held possession of the negro for five years, claiming to be the owner of the same, this would give him a title, unless the jury believe that Jones, the plaintiff', placed the child in Bris-coe’s possession to have it taken care of as his, and was ignorant of the claim of Briscoe' in that ease; the possession of five years would be of no avail. 7. The.only question for the consideration of the jury is, was the slave Amanda a gift from John Briscoe, sr., to his daughter, Mrs. Jones, or to her husband, the plaintiff. If the jury find from the evidence that John Briscoe gave the slave Amanda to his daughter at any time either before or after her marriage, and that her husband (the plaintiff) had possession of the slave at any time during his marriage, then they should find for the plaintiff. But unless they are satisfied from the evidence that the slave was given either to Mrs. Jones in her lifetime or the plaintiff, they should find .for the defendant.” And the following instructions prayed for by the defendant and refused: “1. If the jury believe from the evidence that John Briscoe, sr., (now dead,) shortly after the marriage of the plaintiff with his daughter Artemesia, gave to his said daughter the negro woman Amanda, with the understanding at the time between him and his daughter that said Amanda should belong to her (Artemesia) during her life and after her death to her children, then the plaintiff can not recover in this suit, and the jury should find for defendant. 2. Unless the jury believe from the evidence that John Briscoe (the elder) did give the negress Amanda to his daughter Artemesia before or during her marriage, then they should find for the defendant. 3. If the jury believe from the evidence that John Bris-coe, sr.,.had the negro Tabitha in possession since the death of Mrs. Jones in the year 1843, till about two or three years since, and then delivered the said Tabitha to the defendant Anderson Briscoe, who has had her in possession ever since, then they should find for the defendant, unless they believe also from the evidence that said John Briscoe, whilst he had possession of Tabitha, held and possessed her not as his own property, but for the plaintiff Jones.”

Upon the rulings of the court, in regard to the instructions, the questions on this record alone arise. The instructions given for the plaintiff are not liable to objection, except the second, which will be noticed hereafter. The court below refused the first instruction asked by defendant, because there was no evidence to warrant it. This is a sufficient reason. The second instruction was substantially given to the jury ; and we will not reverse a judgment because the court did not give the instruction again. Once laying down the rule of law is enough in the case ; and when the principle or point in an instruction has already been declared to the jury, we will not reverse because it is not repeated. The third instruction asked for by defendant wras properly refused, and the first one given by the court, of its own motion, was proper, and by it the law was declared to the jury arising on the facts in proof in that particular. The main question in the case was placed fairly and properly before the jury in the last instruction given to them by the court of its own motion. This brought before the jury the consideration of the fact whether the negro woman Amanda was given by old Mr. Briscoe to his daughter, Mrs. Jones, either before or after her marriage with Jones : if she had been, then they should find for the plaintiff. When we examine this instruction carefully there can be no objection to the principle of law declared therein. The part about the possession of the husband during his marriage might have been omitted without any injury or infringement of the principle ; but the part did not have a tendency to affect the defendant’s interests. We consider the court very fairly put the case by its instructions to the jury. Now as to the second instruction asked for by plaintiff, we will examine it. ■“ If the jury believe from the evidence in the cause that said Amanda (tbe mother of the slave sued for) was sent home with plaintiff and his wife Artemesia, soon after their marriage, by said John Briscoe (or by his consent and without objection on his part), without any understanding then or before then had between the plaintiff Jones or his said wife, on the one part, and said John Briscoe on the other part, that it should be considered a loan to said Artemesia, the law presumes that it was a gift, and vested the absolute title of said slave and her said child in plaintiff, and they should find for plaintiff.” Now from the instruction given by the court on its own motion last to the jury, we see that, whether from all the evidence in the case there was a gift of the slave or not, was the rñain question for the decision of the jury. They were to decide that matter. If the slave was a gift to Mrs. Jones either before or since her marriage, then they must find for plaintiff. What then could the court have meant by the second instruction? We suppose it meant to tell the jury that if there was no agreement or understanding about the negro woman as a loan, nor any other mode pointed out by them at the time in which the plaintiff’s possession of the slave was to be considered, that then it was presumed to be a gift, under the circumstances of the case, having remained so long with plaintiff in undisturbed possession ; that the plaintiff held her by some contract or as a gift; and if there was no understanding or agreement about it, it would be considered a gift. Under this view, the instructions may possibly be reconciled ; and as there is scarcely room for doubting, from all the evidence, that the old gentleman Briscoe had given his daughter the negro woman Amanda, we will see if these instructions can be reconciled, and not send the case back upon so slight an error, if it consistently with legal principles can be prevented. In Mulliken v. Green, 5 Mo. 498, this court held that the circumstance of slaves being sent home with the daughter of the defendant and wife of the plaintiff, when she left her father’s house soon after the marriage to go to the house of her husband, most certainly does not amount to a gift or transfer of the title to the slaves, although they remained there about one year, till the death of the plaintiff’s wife. But the sending of the slaves at the time, and the suffering them to remain, was strong evidence from which a jury might well presume a gift. In Hill & Dill v. Duke, 6 Ala. 261, Goldthwait, J., said, It is indeed very difficult to draw a distinction between a loan for an indefinite period of time by a father to a child, when no definite object is to be accomplished by the loan, and an absolute gift; but when sueh a loan is extended over a period of ten years, and no period is fixed for its determination, it is not too much to say, in a contest between a creditor and the donor, that a strong presumption to infer a subsequent absolute gift is well warranted, even if the bailment was originally designated as a loan between the parties themselves.”

There is a difference where the creditor comes in, and greatly in his favor. (See Martin v. Martin, 13 Mo. 66.) In the case of Davis & Fant’s Exec’rs of Webb v. Duncan, 1 McCord, 215, Justice Nott said: “The decisions which have so long prevailed in this state, that permitting property to go into the possession of a son or daughter upon their marriage, and continue with them, should be construed into a gift, is not to be controverted ; and even when it is originally expressed to be a loan, it may by lapse of time be considered as having ripened into an absolute gift.” Justice Johnson said, in Teague v. Griffin, 2 Nott & McCord, 95, “But in this state permitting personal property, to go into the possession of a daughter on her marriage, and to remain there a considerable length of time,' has long been regarded as sufficient evidence of a gift, (1 Bay, 232,) and I think with great propriety.” So likewise held in the case of Moore’s Adm’r v. Danney and another, adm’rs of Bell, 3 Hen. & Munf. 127. There is no doubt that such acts of the parent in sending home with his child shortly after marriage personal property — a slave for instance — is a strong circumstance in favor of presuming such act a gift of the property. It is evidence from which a jury may presume a gift, and no doubt will so presume it if not inconsistent with other facts and circumstances. But we do not say it is in law a gift. It is a fact, and may afford convincing proof to tbe minds of the jury that it was a gift, and they will so consider it. The court here in this instruction supposed that the plaintiff could only have the woman Amanda as a loan, or as a gift, and told the jury if there was no understanding between the parties about the woman as a loan, then the law presumed it a gift. It would have been much better to have told them that the fact of the woman Amanda being taken or sent homo to Jones and wife shortly after the marriage, or their commencing to keep house, and her remaining with Jones until her death,, some six years or longer, was a circumstance from which a jury might well find the gift of the woman from the father to the daughter and son-in-law.

In looking over the whole case, considering the instructions as a whole, we can not say that the jury have been misled, or that the second instruction is calculated to do harm, when taken with the last one given to the jury. If the woman Amanda was the property of Mrs. Jones, then the girl Tabitha belonged to the plaintiff; and whether she was taken to old Mr. Briscoe to be reared after her mother’s death, for Mr. Jones, or was taken there because Jones supposed Mr. Briscoe was the owner of her and ought to rear her, was a matter under the .in-, structions properly left to the jury.

Let the judgment be affirmed;

Judge Scott concurring.


text:
    Lakenan, Respondent, v. Hannibal and St. Joseph Railroad Company, Appellants.
    1. A person authorized by a railroad company to collect calls made upon subscriptions of stock, and entitled to receive as compensation a certain rate per cent, of the amount collected, would not be entitled to charge such commissions for receiving and delivering to the treasurer of the company bonds of a city and county with which, in lieu of money, said city and county were allowed to pay the calls on their subscriptions of stock.

      Jippeal from Hannibal Court of Common Pleas.

    This was an action to recover compensation for services alleged to have been rendered by plaintiff as collector for defendant, the Hannibal and St. Joseph Railroad Company. Plaintiff, being at' the same time one of the directors of the company, was appointed a collector by the following resolution: “ September 17, 1851. On motion, ordered that the following persons be appointed collectors, and commissioners to solicit subscriptions of stock, in the different counties, and that they be allowed as compensation one per cent, on the amount collected by them, viz : R. E. Lakenan, in Marion county,” &c., &c. The rate of compensation was subsequently increased. Said Lakenan was a director of said company from November, 1850, to November, 1858. He was then collector for Marion county for the years 1851, 1852, 1858. In the year 1851, Marion county subscribed $100,000 and the city of Hannibal $50,000 to the stock of the Hannibal and St. Joseph Railroad; and said company agreed to take the bonds of the said city and county, in lieu of money, in payment of calls upon their stock. In payment of calls upon these-subscriptions, plaintiff received bonds of Raid city and county, and gave receipts therefor as collector of said company, and delivered said bonds to the treasurer of the company. The plaintiff seeks to recover therefor the usual commission allowed collectors. The court instructed the jury as follows : “ 1. If the jury believe from the evidence that plaintiff was a director in the Hannibal and St. Joseph Railroad Company at the time of the services charged, yet this fact does not bar plaintiff’s right to recover for any services he may have rendered said company as collector or attorney. 2. If the jury believe from the evidence that plaintiff rendered services for defendant in obtaining the bonds of the county and city and delivering them to the treasurer of defendant, and that defendant received his said services, they may presume a request and should find for the plaintiff what they believe his said services were worth, although plaintiff was a director at the time. 3. If the jury believe from the evidence that the company agreed to receive from the county and city their said bonds in lieu of money, then the duty of plaintiff as collector required him to obtain or collect said bonds and deliver them to the treasurer of said company ; and if they believe that he did so, he is by law entitled to receive the same compensation as if he had collected and paid over a like sum of money.” The jury found a verdict for plaintiff.
    Richmond, for appellant.
    Lamb, for respondent.
    I. No exceptions were taken to the action of the court in overruling the motion for a new trial. (Montgomery v. Farrar, 2 Mo. 153 ; Brun v. Dumay, 2 Mo. 102 Shelton v. Ford, 7 Mo. 209.)
    II. The plaintiff declared upon a quantum meruit and therefore the testimony of Green was admissible, it tending to show the value of the services rendered. There was no special contract alleged, nor was any such shown in evidence.
    III. The fact that plaintiff collected bonds instead of money could not lessen his commissions, as he was directed by the company to receive such bonds in discharge of the subscriptions of Marion county and the city of Hannibal, and this after his appointment as collector, and after the company had fixed the rate of commissions the collectors were to receive. The duties of the plaintiff as collector were not in the line of his duties as director.
   Scott, Judge,

delivered the opinion of the court.

As it appears that the defendant immediately upon the overruling of his motion for a new trial asked the court to sign his bill of exceptions, and as the bill was signed containing the motion for the new trial, it is sufficiently plain that the overruling of the motion for the new trial was excepted to. This objection might be met with another answer ; but it is deemed unnecessary to state it.

The only question in the case is, whether the receiving of the bonds from the city and county and the delivery of them to the treasurer of the company and taking his receipt therefor, were services within the terms of the contract with the plaintiff to collect calls on the subscriptions to the stock of the company. It can hardly be necessary to state that the designation of the plaintiff “ as collector” by the treasurer of the company, did not make him such, as there is nothing in the record which shows that the treasurer had any authority to bind the company by such admission, or that he had any power to contract for the company in relation to the subject. The failure of the plaintiff to charge his commission for receiving the bonds in his previous accounts for services in collecting which were settled is certainly a circumstance against him, and the force of that circumstance is strengthened by the fact that the claim of compensation for such service was not made until after he left the company’s employment. There is a responsibility in receiving money which is not incurred in taking bonds. The board must have had an eye to this responsibility in fixing the compensation for collection. We see all the collectors receiving the same commission. From this we may infer that similar services wore, in the contemplation of the company, to be performed. There are counties in which collections were to be made where it does not appear that any bonds were to be received. The city and county having made arrangements with the company by which their bonds were to be taken instead of the money, they were no longer to be called upon for money by the collectors. Such an arrangement placed them beyond the sphere of the contract by the collectors with the company. After the agreement by the company to receive their bonds, the collectors had no authority to call on them. By measuring the commissions of the collectors by a “ per cent.” there was a clear indication that money only was to be received. The taking of bonds is not a collection of money in the ordinary sense of the term “ collect.” After the bonds are received the money is still to be collected on tnem. The testimony of the witness relative to the charges of lawyers for collections was altogether irrelevant, and had nothing to do with the case. The question presented involved a construction of a special agreement, and the practice and ■usages of lawyers could not affect it. The second and third instructions given for the plaintiff were erroneous. This is no ease for a quantum meruit, and the contract to collect did not extend to the taking of bonds. We have given the contract a construction under which the plaintiff himself a long time acted, ■ as may be inferred from his conduct.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded ;

Judge Leonard absent.


text:
    Hunt, Respondent, v. Johnston, Appellant.
    1, Mere proposals preliminary to a contract form no part thereof unless incorporated into it.

      •Appeal from Jefferson Circuit Court,

      Frissdl, for appellant.

      JVbell, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit brought to recover from Johnston twelve hundred and fifty dollars for so much money had and received by him for the plaintiff. The plaintiff charges that the defendant and himself, being the owners as tenants in common of a certain amount of real estate, agreed between themselves that the said Johnston should sell one-half thereof for a sum not less than ten thousand dollars, and to receive as his compensation any excess he might be able to get over that amount, and was to retain one-fourth interest himself and to secure to the plaintiff one-fourth interest in the land. The plaintiff charges that Johnston did proceed to sell and did sell more than one-half interest in the lands, viz., twenty-one thirty-fifth parts thereof, for the sum of twenty-one thousand dollars. Plaintiff charges that defendant sold of the plaintiff’s interest ten thirty-fifths, and out of his own share eleven thirty-fifths ; that plaintiff and defendant executed a deed to carry out this arrangement, from which it will be seen that there is reserved to plaintiff one and one-fourth thirty-fifth parts less than the interest that was to be reserved to him according to said agreement; and for. this excess over the one-fourth sold, thereby leaving less than one-fourth remaining to plaintiff, the said Johnston received the sum of twelve hundred and fifty dollars, and refuses to pay the same to the plaintiff, and therefore he asks judgment for the same and interest thereon.

The defendant answered, denying the plaintiff’s right to recover. He denies that there was any agreement between plaintiff and himself that he (defendant) should sell one-half of the land in the deed in the petition mentioned for a sum not less than ten thousand dollars. He denies that there was any agreement between them that he should retain one-fourth interest for himself and secure one-fourth interest to the plaintiff. He states that he and plaintiff were tenants in common and owners of nineteen hundred and twenty-one acres of min - eral land, entered by them between the 28th day of December, 1858, and the 18th of January, 1854, both days included. He sets out the numbers of the land entered by the township, range and parts of sections. He states that about the date of the last entry of said lands, wishing to dispose of part of the same, he wrote to plaintiff asking if he would be satisfied for this defendant to sell one-half of their lands, consisting of upwards of nineteen hundred acres, for ten thousand dollars, five thousand of which was to be paid to plaintiff, and defendant retaining five thousand dollars, and whatever he might get over ten thousand, for his trouble in selling. About the same time, he requested the plaintiff to select some of the best of said lands and not include them in the contemplated sale. In reply, plaintiff urged the defendant to sell all the lands, reserving only a small fractional piece of about sixteen acres. He also mentioned an eighty acres more which he thought had better be reserved : he mentioned also a forty acre tract which was not included in their entries. He also expressed his willingness to take five thousand dollars for one-half of his interest in all of the land which they had entered as above mentioned, and urged the sale of the whole. The defendant admitted that by selecting eleven hundred and twenty acres of said land, and that not of the best quality, and by dividing it into.thirty-five shares, he effected a conditional sale of twenty-one of said shares nominally at one thousand dollars a share. He alleged that the sale of these twenty-one shares was dependent upon the proper conveyance being made of said eleven hundred and twenty acres by the plaintiff and defendant to certain persons in Pittsburgh, in whom the legal title was to be vested for the benefit of the different shareholders ; that after making the conditional sale and before receiving any portion of the money he returned to Missouri, and after informing the plaintiff fully of all he had done— that conditional sales had been made of twenty-one out of thirty-five shares into which the eleven, hundred and twenty acres had been divided, nominally at one thousand dollars per ■share; that no part of the money became due till after the deed should be made, and that no part of it had been paid — and in consideration of two thousand dollars then paid by defendant to plaintiff, the plaintiff made an agreement dated 15th March, 1864, with the defendant, by which it was stipulated that the plaintiff should be paid three thousand dollars more ; that seven and a half shares, out of the thirty-five into which the eleven hundred and twenty acres had been divided, should be delivered up to him upon the execution of the deed for his interest in the eleven hundred and twenty acres of land to the trustees in Pittsburgh as aforesaid ; that plaintiff afterwards received the sum of three thousand dollars and the seven and a half shares, and executed the deed ; that upon the payment of the three thousand dollars and receipt of the shares the whole business was fully settled between plaintiff and defendant, and all demands against defendant in favor of plaintiff fully paid.

There was a trial and judgment for the plaintiff for the sum of fourteen hundred and five dollars and ten cents. The defendant moved for a new trial, which being overruled he brings the case here by appeal.

From the bill of exceptions we find that the deed by Hunt, the plaintiff, and his wife, and Johnston and his wife, to the trustees Kidmer and Robur, for the eleven hundred and twenty acres of land in trust for the shareholders, bears date Slst March, 1854. In this deed seven and a half parts or interests are reserved for Hunt. The testimony shows that the propositions about the sale of a part of the land ,-were made in some letters from Johnston to Hunt. It becomes material to notice these ¡propositions and the answer of Hunt. In Johnston’s letter to Hunt, dated 17th January, 1854, at St. Louis, he says : “Will you be satisfied to give me for my trouble, &c., in making the sale — that is, provided I can do it — all I can get over ten thousand dollars in cash or good paper, for one-half of all the mineral land we have entered at the ‘ Old Mines,’ having no reference to the Casey lands, and you and I still to own one- quarter each, and the ten thousand dollars to be divided between us — five thousand, each — say about twelve hundred acres of land ? In case you are willing that I may have all I can get over the ten thousand, say so by return mail, and I will try my best. If you wish to do it, I think you had best get Sarah Hunt to write it; you sign it, and Mr. O’Mara can direct it. Have the letter directed to No. 41 south Fourth street, and it must come next mail.” In his letter dated 18th January, 1854, at St. Louis, to Hunt, he says: If you consent to my selling in the way I proposed — one-half of say twelve to fifteen hundred acres — I want you to select those that you would prefer to keep for ourselves, recollecting, however, that you and I will only sell one-quarter each of the twelve or fifteen hundred acres which I propose selling for ten thousand dollars. I to have any thing which I may obtain over that for my trouble, &c., and you to have five thousand dollars and I five thousand dollars of the said ten thousand. State in your letters to me the numbers, &c. — all in township 38 — which you would rather keep for ourselves, and, as I have all the numbers, I will select those you do not want, if I should succeed in making a sale.5’ In a letter dated 30th January, 1854, at Philadelphia, to Hunt, Johnston says: il Your favor of the 22d inst. came to hand this morning; I shall wait patiently for the map, &c., of Mr. O’Mara, and will proceed with my effort to dispose of the half (or otherwise, as I can) of 1500 or about that number of acres of mineral land. 1 wrote to you from Chicago stating that some objection presented itself to me in presenting only half of land to parties ; that I thought I would be compelled to divide the whole fifteen hundred acres — about that — into so many parts, and you and I retain eaeh our parts equal with the other parties. This letter you have doubtless since received, and I ask you to authorize me to do whatever I thought proper, so that you and I hold interests in it according to the parties interested. I therefore advise that you would authorize me, in a general way, to dispose of the fifteen hundred acres in whatever way or manner I may think proper, and that I shall be entitled to all I can obtain ever the five thousand dollars ; which, with one part and one interest undivided, must be secured to you.” I do not consider it material to notice the testimony of the witness Talbott; what he related obviously came to his knowledge from the correspondence between Johnston and Hunt.

The defendant offered in evidence the abstract from the Land Office showing the lands entered; also a letter to him from plaintiff, in which he says : “In one of your letters, you propose to make sale of one-half of all those mineral lands which we have entered, and ask me if I will be satisfied to give you, for your trouble in making sale, all you can get over ten thousand dollars in cash. In reply, I have to say that I will be satisfied toi sell one-half of our mineral lands, reserving the fraction of 16 28-100 acres, for ten thousand dollars, although I am confident from their location and from trials already made that one-half is worth more than ten thousand dollars, and I shall be satisfied that you shall have all you can get over the ten thousand dollars for your trouble. My advice is not to reserve any but the 16 28-100 acre fraction; by these means we can show any person who may come and examine the lands several good prospects, and as I am determined to open one or two of them immmediately. In the first place, I have reserved several pieces, which Mr. O’Mara has drawn off, and which are herewith inclosed, and you can use your own pleasure in this regard; as for my part, I would rather let the whole go together in this way. Those who may purchase will do well.” The defendant then read in evidence the deed made by himself and Hunt and their wives to Kidmer and Robur, the trustees for the stockholders, of the thirty-five shares. Then, having first proved the handwriting of Hunt, he read in evidence a receipt and agreement, signed by Hunt, dated 15th March, 1854, as follows : “ St. Louis, Mo., March 15th, 1854. Received of Robert Johnston, the sum of two thousand dollars, in consideration of which I do hereby agree for myself, my heirs and assigns, to convey to Kidmer and Robur, of Pittsburgh, Pa., as trustees, all my interest in eleven hundred and forty acres of mineral land, situate in Washington county, Mo., described as follows : “ In section 3, township 38 north, range 2 east, 160 acres ; in section 9, same township, &c., 300 acres ; in section 10, same township, &c., 320 acres ; in section 15, same township, &c., 200 acres; in section 20, same township, &c., 80 acres ; in section 21, same township, &c., 80 acres — making in all 1140 acres ; it being understood and agreed that on the execution of the said deed of conveyance in fee simple as aforesaid, the further sum of three thousand dollars shall be paid to me by the said Robert Johnston ; and further, that certificates for seven and one-half parts of the thirty-five parts which compose the whole number of parts ‘into which mineral land is divided shall be issued in my name, as my own property. The above is correct, with the erasure. [Signed] James Hunt.” He then read an account stated and balanced between Hunt and Johnston, dated March 31st, 1854, and signed by Hunt. This purports to be on a settlement of all private matters remaining tbis day unsettled between Gen. James Hunt and Robert Johnston, intending hereby to settle up every thing. The account embraces moneys paid out by Hunt for and on account of the joint business of himself and Johnston, the last item being the three thousand dollars on account of the conveyance of the eleven hundred and twenty acres of land to Kidmer & Robur, the trustees, &c., the balance of the five thousand dollars. Then follow the various items in which Hunt is debtor to Johnston, concluding with a draft on Kidmer and Robur for $1880 81, making the account balance. Signed “This settlement is satisfactory to each of us. Witness our hands, this date above written. [Signed] James Hunt, Robert Johnston.”

I have given a very full statement of the facts of the case, in order to a proper understanding of the law arising on the instructions given by the court, as well as those asked for and refused by the court. The court, of its own motion, then gave the following instructions: “ 1. The court instructs the jury as follows: That by the proposals contained in the letters of Johnston to Hunt, of the 17th and 18th January, 1854, Hunt would have become entitled, upon a sale made by Johnston, to $5000 in money and eight and three-fourth shares out of the remaining shares sold ; and if the jury find that the sales were made by Johnston according to these proposals assented to by Hunt, then Hunt’s rights as above immediately attached and became vested in him accordingly, and he can not be divested of them or barred from asserting by any subsequent contract not made upon sufficient consideration. 2. If the jury find that the sales were made by Johnston under an agreement as proposed by him, then Hunt, not having received his full number of shares, according to its terms, is entitled to recover of the defendant one and a quarter shares, or their value, if sold, to be estimated by the amount actually received on sale on them. 3. If the jury find that Hunt became entitled to the $5000 and 8f shares out of 35 of the remainder of shares unsold, as above, and that in consequence of the sale by Johnston under his proposals as above, Hunt had a complete and vested right to them before the agreement of the 15th March, 1854, was made, then the written agreement as to the one and a quarter shares, if in the absence of any evidence of a consideration to support it, is not binding on Hunt, and is no bar to his right of recovery. 4. If the jury find that before signing the paper writing of the 15th March, 1854, Johnston had sold the shares according to an agreement as evidenced by the proposals contained in his letters, and that by fraud and circumvention Johnston deluded Hunt into signing that instrument, then the jury will also disregard that instrument, and any settlement made according to it, as any evidence of right in the defendant or as any bar to the recovery of the plaintiff. But if the jury find that no agreement as evidenced by the proposals contained in these-letters was ever assented to by Hunt, or if made and before Johnston had made any sale's under and before any right attached, Hunt and Johnston entered into a new agreement as evidenced by the paper writing of the 15th March, 1854, then the rights of the parties must be settled and determined according to the terms of that instrument; and if the jury so find, then the settlement of the 30th March, 1854, is conclusive against the plaintiff’s claim, and the jury will consequently find a verdict for the defendant. 5. If the jury find that Hunt authorized Johnston to sell only one-half of his interest in the land, or eight and three-fourths shares out of thirty-five, then the sales made by Johnston, on Hunt’s account, will be presumed to be limited to the extent of that half, and all beyond be considered as made on his own account, to be drawn out of his individual and separate shares ; and if the jury so find, the defendant will be entitled to their verdict. 6. Yet the jury are at liberty to consider how far the execution of the deed from Hunt and Johnston to the trustees, in which only seven and a half shares are reserved to Hunt, is evidence of an authority from him to sell more than one-fourth on his account, or how far it is evidence of a sale by Johnston of one and a quarter shares on Hunt’s account, and a ratification by Hunt of such sale, or how far Johnston’s reserving to himself six and a half of the remaining shares is evidence to disprove that the sale of one and a quarter shares to have been made on his own account ; and if, from the whole evidence, the jury shall believe that the one and a quarter shares sold by Johnston was sold and taken out of Hunt’s shares, then Hunt is entitled to the proceeds, and the jury will find a verdict for the plaintiff.” To the giving of these the defendant excepted.

The following instructions the defendant asked the court to give, which were refused: “1. That the letters of Robert Johnston to James Hunt were merely preliminary to the contract which was finally made, and are not to invalidate the contract subsequently executed. 2. That if they find from the evidence that Hunt has received the number of shares in the 1120 acres of land that by the agreement executed by him he was to receive,and also the amount of money he was to receive by the agreement, they will find a verdict for the defendant. 3. If the jury shall find from the evidence that James Hunt received from Robert Johnston five thousand dollars, and seven and one-half shares out of the thirty-five into which the said eleven hundred and twenty acres of land was divided, in full satisfaction of his half of said eleven hundred and twenty acres, they will find for the defendant.”

These instructions given did'not fairly put the question before the jury. The court should have informed the jury that the letters from Johnston to Hunt are but proposals for permission to sell, and were offers for a compensation for selling. Now Hunt did not limit Johnston to the 1120 or 1140 acres. Johnston’s letters mention as high as from twelve to fifteen hundred acres, and Hunt was perfectly willing for Johnston to sell that amount or sell all except the 16 28-100 acres. There was no settled understanding about the quantity which Johnston wanted permission to sell. He says in one of his letters: I will proceed with my effort to dispose of the half (or otherwise, as I can) of 1500 or about that acres of mineral land.” Hunt gave Johnston authority to do as he pleased. He would rather sell them all: “I would rather let the whole go together in this way.” Here were two men deeply interested in land speculating. One had gone east, and he desired permission from the other to sell half or more than half. They had entered about nineteen hundred acres. Johnston thought he could sell half or about twelve to fifteen hundred acres — no particular quantity. He was willing to do his best to sell, and he was willing to trust for his services to whatever excess over ten thousand dollars he might receive in money or good paper. This was considered by these gentlemen as a profitable speculation. They had entered with warrants and money at a price not to exceed $1 25 per acre, and I suppose the warrants not more than one dollar per acre ; then, in less than four months, a sale at eight to ten dollars per acre was very gratifying to these mineral land speculators. But Johnston finally lays off 1120 acres, in thirty-five shares, and sells twenty-one of these shares for nominally one thousand dollars a share. But this sale is dependent on the consent of Mr. Hunt. He must with his wife make a deed in fee simple for the land, uniting with Johnston and his wife, to trustees, for the benefit of so many persons as had bought shares named in the deed, and also for the benefit of Johnston and Hunt — each one having a part of the shares. Hunt had seven and a half shares. This deed mentions the consideration of thirty-five thousand dollars — a thousand dollars a share. Mr. Hunt knew how many shares had been sold. He receives his two thousand dollars — agrees to convey his title — afterwards makes the deed and receives the balance of the five thousand dollars, and expressly makes a full settlement and acknowledges the same to be satisfactory. The jury should have been told that if they believed from the evidence that Hunt and Johnston settled their land business after Johnston’s return, and that Hunt received his five thousand dollars for his part of the land sold as joint stock, and received his seven and a half shares, and that it was the understanding and agreement between Hunt and Johnston that the sum of five thousand dollars and the seven and a half shares in the joint stock property of 1120 acres were the consideration of the deed of Hunt and wife to Kidmer and Robur, and that afterwards a full settlement of this whole business was made between these parties, then the plaintiff had no right to recover.

The receipt and agreement of the 15th March and the making of the deed and settlement must do away with any proposition or proposals in the letters. Hunt has no right to complain because Johnston made more than Hunt, for he knew before he made the deed how much land had been sold. He knew when he made the settlement what the shares had been sold atl He settles and says he is satisfied — content with the seven and and a quarter shares and five thousand dollars ; but when he sees how much more his fellow- speculator has made, then he becomes dissatisfied and he must sue. The instruction in regard to fraud and circumvention by which Johnston may have deluded Hunt into signing the instrument of 15th March, 1864, has no foundation for it to stand upon, and should not have been given. So far as these gentlemen are themselves concerned in regard to each other there was no evidence of fraud or circumvention. The substance of the defendant’s instructions ought to have been given, especially the two last. The letters were but proposals ; there is no specific quantity mentioned and settled upon to be sold by these letters, and when Hunt afterwards ascertains, before he signed the deed, the amount sold into shares as joint stock, and the price and the quantity reserved to him, then was the time to make objection, or to deny the power to sell, or to claim more than the seven and a half shares; but he must be considered by his subsequent actions and conduct as sanctioning what was done, and agreeing to its consequences. I have not thought it necessary to be more particular in pointing out the objectionable instructions. I have laid down what we consider the law governing this case. The judgment must be reversed, and the cause remanded, with directions to proceed with the trial in accordance with the views here laid down;

Judge Scott concurring,

he alone with me on the bench.