text:
    Benton v. Craig.
    3.An attorney is not liable unless his client informs him of the nature of-his defence.
    3. Money is unreasonably and vexaliously delayed from thetimethe plaintiff’s right of action accrues. *
    ■?, Right of action accrues against an agent for money received after demand by the-owner, and neglect or refusal on his part to pay.
    4. If money be paid to a lawyer for services to be performed ata-future day, the right of action to recover it back accrues from the time he neglects or refuses to perform the services,
    5. A notice to take depositions on 24th June,..1828, between the hours 8, A. M., and 6,. P. M., and on the 26th, 26th, 27th and 28th, same month and same hours, is bad. If the beginning had been confined to a day certain, and the intention of continuing from day to day expressed, the'fiotice would have been good.
    3. A witness cannot testify to the amount of a- record or of any written instrument^ unless its absence be accounted for.
    ERROR-to Howard Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

This was an action of assumpsit for money had and received by Benton, the defendant in the Circuit Court, for the use of Craig, the plaintiff, and for money laid' out and expended by the plaintiff for the defendant, at his request. Plea, non-assumpsit, and judgment for the plaintiff. To .reverse which judgment the defendant?, now plaintiff in error, ¿sues out this writ,.

On the trial of this cause in the Circuit Court, it was proved'that some time in the-year 1818, or at an earlier date, Craig-, employed Benton to attend to two law suits? for which business Craig paid him, through an agent, one hundred dollars. This agent, who was the witness, says that Craig gave Benton his promissory note fort-hat sum of money, and Benton agreed to attend as counsel and attorney for the-plaintiff,. Craig, to- those suits. It was also proved that Benton was employed by Craig in two- other suits, and the payment of one hundred dollars was proved. It was further proved, that Benton did nothing more, perhaps, in those cases than to argue a motion to dispauper one of the plaintiffs, who had been allowed to sue as a pauper. Some depositions were read, to the reading of which objections were made-by the defendant below.

(199) The counsel for the defendant in the Circuit Court prayed-the- Co-uit to instruct the jury:

First. That the plaintiff could not recover in this form of action.
Second. That Benton, as counsel for Craig, was not liable, unless Craig informed-him of the nature of his defence, proof, &c.
Third. That they should not allow interest except from the commencement of this-\ action. All of which instructions were refused.

As the cause may otherwise be disposed of, the Court is hot disposed to decide whether the first instruction ought to-have been given. The second instruction ought to have been given. The jury ought to have been informed whether Benton was furnished with the instructions necessary to enable him to defend the causes. But what, kind of evidence, or how much of it might be-requisite to satisfy the jury, is not for this Court to say. The third instruction was correctly refused, but the jury ought to-, have been instructed to- allow Craig interest from the time his right of action accrued ; for we hold that the payment of money is unreasonably and vexatiously delayed, from the time the plaintiff’s right of action accrues. If money is received by a man as agent, a right of action accrues to the owner only from the time of a demand on his part, and a neglect or a refusal, on the part of the agent to pay. If it he paid to a lawyer for services to be rendered at a future day, we incline to the opinion that the right of action to recover it back, accrues from the time that he neglects or refuses to perform the stipulated services.

The objections to the reading of the depositions were, that the notice was insufficient, that it was not properly served, and that the witnesses testified to the contents, of records and of. a draft, none of which were produced. The first of the objections ds they appear in. the bill of exceptions to have been made, is, that the deposition of one witness was taken without any notice served on the defendant. It was proved . that the defendant was a Senator from this State in the Congress of the U. S.; and-that while he was absent on his public duties, notice was served on his counsel and attorney at law, and a copy of the notice was put up in the Clerk’s office, as is required by the statute in case of non-residents.. The defendant’s place of residence-was proved to be in St. Louis. The service of the notice was bad. The notice need not be personally served, and inconveniences might have been experienced in finding, (200) a proper, person on whom to serve it. But this is no more than what may happen in the case of' many other of our best citizens, who are temporarily absent,, and may not, perhaps, have an agent on whom notice may be lawfully served | audit may here be observed, that our law gives another remedy, in such cases, especially» if it be attempted to evade-the-process of the Courts.

The second objection, in the order they appear on the hill of exceptions, is, that the notice was insufficient. The statute requires that the party shall have notice of the time and place of talcing- depositions. The notice given is to take depositions oik. the 24th day of June, 1828, between the hours of eight of the clock, A. M-, and sis-in the evening, on Wednesday the 25th, on Thursday the 26th, on Friday. 27th, and: on Saturday the 28th of the same month and the same hours, &c.. It seems to the. Court that such a notice is as bad as no notice. It might as lawfully have extended-to an hundred days. Had the time of beginning been.confined to Wednesday..25th, and an intention expressed of continuing from day to.day till the business was completed, we do not hesitate to say it would have been g(/od. But we are of opinion that the notice before the Court is bad.

The third objection is, in law, good. A. witness cannot testify to the contents either of a record or of any written instrument, unless its absence be accounted for. One of the witnesses testified that the defendant presented to him a draft by Craig,, the paintiff, for $100,. which he paidrand reoites the contents of the draft, which was in these words, or to use the witness’ own-wordsj in substance as follows:

“P, Holderman & Co. — .Four months after date pay to Thomas H. Benton one hundred dollars, out of the proceeds of my-salt, for which he is to attend to two suits-against myself and others, brought by Hinkson, (or some such name,) and charge to account of your ob’t serv’t,
GEO, CRAIG.”'

This part of the deposition should have been excluded, as the draft was not produced, nor its absence accounted for. For it goes to establish an agreement between Craig and Benton, and the draft itself, we are told by the witness, was probably delivered to Craig after it was, paid j^and had the draft been produced, it would have been the best evidence, to supply which the law will not call in-the frail memory of man till the absence of the written .testimony is satisfactorily accounted for. The-payment of the money, however, it may.be observed, might have been proved without proving the contents of this draft.

(201) The other witness-testifies that in two of the causes where the plaintiff in. error had been employed, .pleas had.been filed by the late Judge Gray and himself, aehis memory serves him¿ Tile records of these causes are in. the Circuit Court of Callaway county, says the witness, and will more certainly show by whom the pleas-were filed. In this State the pleas are generally signed by the person filing them, and although the signature might have been the strongest evidence that they were-filed by the signer, yet that is .not the only admissible testimony of the fact. Had-the witness testified to the contents of the pleas filed, this .would 'have been inadmissible testimony. We think this testimony was properly admitted.

The judgment of the Circuit Court is reversed, and the cause is remanded for further proceedings in that Court. This Court not being agreed whether the plaintiff' in the Circuit Court could have recovered on the count for money had and received, have chosen to say nothing on the first instruction prayed, and have accordingly decided • the cause on other points, leaving the defendant in error to his choice, either o£amending in .the Court below or of depending on his old declaration.


source: Caselaw Access Project

author: M’Giek, C. J-.,

license: Public Domain

text:
    Henry v. Lane.
    in a trial before-a Justine of the Peace, evidence may be given to support a piea 5n abatement after the cause has proceeded in chief.
    3, In a suit before a Justice of the Peace, the party is not required to swear to hie abatable defence.
    ERROR from the Howard Circuit Court-
   M’Giek, C. J-.,

delivered the opinion of the Court.

Henry originally commenced an action before a Justice of the Peace. Henry had judgment, and Lane took an appeal to the Circuit Court. The plaintiff, Henry, on the trial proved his case, and then the defendant offered to introduce testimony to show that at and before the commencement of this action, the plaintiff was dead. The evidence was objected to. The objection was overruled. The evidence washaerd by the Court, and) the defendant had judgment.

(202) Several errors have been assigned on matters growing out of a hill of exceptions taken on a former trial, but those errors have been abandoned. The only-error relied on is, that the Court did wrong in receiving evidence that the plaintiff was dead before the bringing this action. To sustain this error, Mr. Wilson, counsel for the plaintiff in error, makes Iwo points in argument, substantially as follows: First. That the evidence given was evidence in abatement, and should have been, given before the cause proceeded in. chief) and having failed to do so, has waived all, matter in abatement.

Second. That though.in this sort of a case the pleading may he ore terms, yet that the party should have alledged his defence in that way and suppoited it by affidavit.

There can be no doubt that with respect to the matter of this defence, it should, have been regularly pleaded, if the suit had been brought in the Circuit Court originally, hut the law requires no pleading in cases before a Justice of the Peace. Every thing is open as to the mode of defence. When the cause comes into the Circuit Court, the law says it shall be tried de novo on the merits. In executing the law, the-practice always has been to require no sort of pleading, but to give every thing in. evidence; and in proceeding with the trial no regard, has ever been had to the time-when evidence in abatement should be given. To require this evidence to be given-, in the order in which it should have been pleaded in cases proper to plead it, would.., he to embarrass the proceedings with technicalities, which the Legislature seem to, wish to avoid.

The Circuit. Court might, no doubt, make rules to require the party to give this. sort of evidence before the cause had proceeded in chief, but the Court has not done-so, and the practice is otherwise. With regard to the second point, which is, that, the-party should swear to his abatable defence, it seems to ns to he sufficient to say that ihe law' only requires this where the pleas are written in form, and in, cases where formality is required. In cases where the affidavit is required to pleas, ija.abatement, the party offering the plea must swear to the same, and. the reason in. because'the plea is-dilatory, and is calculated to delay the trial on the merits till the plea can be disposed of; and then if the plea is adjudged bad, the defendant will be required to answer over.

In the case before the Court no- delay of the trial on the merits is produced, for the plaintiff had given his evidence in chief.

(203) The judgment of the Circuit Court is affirmed with costs.


author: TÓmPicUsts, J.,

text:
    Currin v. Ross & Glasgow.
    if Under the act simplifying proceedings at law, the defendant is allowed six days to plead as in other cases.

      3. Error in taking judgment by default before the time of pleading expires, is not cured by opening the judgment on-the motion-of the plaintiff, unless the defend-' ant-has notice thereof.
   TÓmPicUsts, J.,

delivered' the opinion of the'Cbuirt.-

This is an action commenced by Ross and Glasgow against Currin under the acf entitled an act to simplify proceedings at law for the collection of debts.

On the second day of the term-the plaintiffs took judgment by default against the defendant, and on the same day the defendant moved to set this judgment aside, and for leave to file the plea.of nil debit.- This motion was overruled. On the third day of term the Court,, on the. plaintiff’s motion, set aside the judgment by default, and the cause remained open till the 9th day of the term, when no plea being filed the plaintiff again took judgment by default. To reverse this j udgment, the defendant has come into this Court..

The plaintiff in error admits that judgment by default might have been entered against him on the third day, and contends that he had all the second day to plead in. The defendants in error seem.to admit that the judgment by default was taken too soon. For on the third day of the term they move to set aside their own judgment and leave the cause open till the ninth, and contend that the first error was thus cured, the other party having it in his power to come in and plead.

It does n'ot appear that the plaintiff in error had notice that this judgment by default was set aside. The belief that the defendant was hound to plead on the second day, seems to he produced by the language of the fourth section, viz: that the petition and summons shall not go to the rules, but the proceedings shall be had in Court, and shall be docketed the second day.” The marginal note is “-set for trial second (204) day.” This note, (it is almost idle to say it,) is no part of the law. Surely it cannot be inferred from this section of the statute that the pleadings must be made up on the second day. And it is still more extraordinary that those words should be construed to mean, “ set for trial on second day.” “ Docketed to the second day,” mustmean, docketed on the second day, in order that the parties may know the trial day. In the third section it is provided, that the defendant shall appear and answer on the second day, and in the fifth section this day is called the return day.

When suits are brought in the ordinary way, that is, under the act to regulate proceedings at law, the return day is the first day of the lerm, and the defendant is on that day required by the language of the summons to appear and answer. In the fourth section of the last mentioned act are these words : and such writs shall be served at least fifteen days before the return day thereof,” which means the first day of the term, and all writs must be served at least fifteen days before the first day of the term. And by the fifteenth section, the defendant is allowed till the sixth day to plead. By the sixth section of the act to simplify proceedings at law, it is provided that the defendant may appear and plead, and then join issue “joined as in an action of debt on such bond or note.” If the defendant be allowed to plead, he ought to be allowed time to plead; and there is no reason why he should not be allowed as much time to plead to a petition and summons, as to an action of debt, which is six days, if the term shall be so long confined, and the act itself being silent as to the time of pleading, it is but reasonable to make the rule of practice in such suits conform to the rule prescribed in the action of debt.

It is not a forced construction that the words, “ as in an action of debt on such bond or note,” should refer as well to the time and manner of pleading, as to the joining of issue. With this construction of the statute we are belter satisfied, for two reasons : First. The Clerk is directed by the 27th section of the act to regulate proceedings at law, to set all causes for trial at least sixty days before the first day of the term, specifying the day on which each cause is to be tried,” and the witnesses ara to he summoned to attend on the proper days. Tims the second day will he disposed of sixty days before the first day of the term, and for forty-five days after suits by petition and summons may be brought, and for what purpose should they he set ■ or trial on the second day ? For if any thing more than docketed on the second day is meant by the words of the 4th section “ docketed to the second day,” that (205) meaning must he set for trial, as is the marginal note.

The consequence would be, that the Clerk in setting his causes for trial, must always leave open the second day, when he might not have a single petition and summons to fill it with. It seems a reasonable construction that the Clerk should docket the causes on the second day of the term, which is the return day, and consequently ■the first day that the law puts them in his power ; and it seems, too, that he must necessarily docket them after the causes continued from the last term. Second. It is a reasonable conjecture that the second day, or any one day,, should not suffice for the suits of that kind, that might be brought in some counties.

The judgment by default seems, then, to have been improperly taken on the second day. Was the error cured by opening the cause ? The plaintiff in error, for any thing appearing on the record, was not in Court, and knew nothing of it. We think the error is not cured. Had it not appeared on the record that the term of the Court continued several days longer, the decision might have been different. It may perhaps give the Court some trouble in short terms, to give-effect to the law which allows six days to plead, if the term so long continue 5 and also, to give the plaintiff judgment. But this cause presents no difficulty.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings, in conformity with this opinion.


author: Tompkins, J.,

text:
    Warder v. Evans.
    •¡„ Debt on judgment. The declaration set forth a judgment for $420 62, and also for the further sum of $17 61 for costs. The record was a judgment for $420 62, ‘■and also for his costs by him in this suit in this behalf expended.” Held, that there was no variance, as it appeared from the record that the costs had been taxied and certified by the Clerk of the Court In which the judgment was rendered.
    S. A defendant cannot plead a lost release.
    3. A demurrer only admits matters that are Well pleaded.
    APPEAL from Lafayette Circuit Court
   Tompkins, J.,

delivered the opinion of the Court.

This was an action of debt founded on a judgment rendered in Kentucky against the defendant. Pleas, payment, release, and nnl tiel record. To the pleas of payment and release, demurrers were filed, and issue taken on the plea of •ml tiel record. Judgment was given in the Circuit Court for the plaintiff, as well on the issues of {206) law as of fact ; and to reverse this judgment the defendant prosecutes Ms appeal.

On the record it appears that the declaration states a judgment for $420 52 1-10, and also for the further sum of $17 61 for his costs. The judgment is for $420 52 1-10, and also for his costs by him in this suit in this behalf expended. It appears further from the hill of exceptions in this cause, that the costs of the suit in Kentucky, as taxed by the Clerk, and certified in the record here declared on, amount fo §17 61, the amount claimed for costs in the declaration.

The appellant, by his counsel, contends that this is such a variance as is fatal, and ■relies on the case of Ferguson v. Frizel and others, page 441 of 1st vol. Decisions of Sup. Court of Missouri. In that case the declaration is for $175 debt, $11 damages, and for $19 43 1-2 for his costs. The judgment given in evidence is for $175 debt, '$11 damages, and for his costs and charges, &e. This variance between the allegation in the declaration and the record offered in evidence in that case, was held fatal. And it may he observed, that had it appeared on the record then before the Court, that the costs had been taxed and certified by the Clerk, as in the present case now before the Court, the decision would probably have been different. We do not see, from the opinion, that the costs had been taxed and certified by the Clerk of the Court, that rendered the judgment declared on in that case. The taxing of costs is a ministerial duty of the Clerk, and when it is performed, the amount of costs for which the judgment is rendered is as well ascertained as if it had been 3et down in so many words by the Court. The costs are taxed and certified along with the proceedings of the Court; and we think that the appellee declared well for costs m numero, and that it was not necessary that he should aver the costs amounted to $17 61, as contended by the appellant.

The appellant abandons his plea of payment, but contends that the release was well pleaded. In Dunklin and others a. McKee, it was decided that an action could not be maintained on a lost bond: see 1 JSfo. iJ., 123. If a plaintiff cannot sue on a lost bond, we see no reason why a defendant should be allowed to plead a lost release. But the appellant contends that the want of profert in his plea, is, by statute, a subject of special demurrer only, and that he ought not to be in a worse situation than if he had pleaded without making that excuse. Had he pleaded without mak(207) ing profert or excuse of profert, the appellee, plaintiff in the Circuit Court, must either have demurred specially, or have taken issue. Had he demurred specially there would have been an end of the matter; and had he taken issue, the defendant (appellant here) must have taken a non-suit on the trial before the jury, as he would have been able to produce no evidence to sustain his plea. But he has chosen to disclose in his plea that he has no defence, and the appellee very properly demurred. .But the counsel for the appellant contends that the appellee, by his demurrer, has admitted there was a release, and that it was lost. It is understood that by a demurrer, every thing well pleaded is admitted, and nothing more. Were it otherwise, a man who never had a release might plead one with this excuse of profert, and the consequence would be, that the plaintiff would he reduced to the necessity of talcing issue on the matter of fact, which, when established, would only prove that the appellant’s defence was in another Court. This is as well known on his disclosure of the loss in his plea as after trial by jury. Surely it could never be intended by the lawmaking power, to compel the plaintiff to have that proved by a jury, which the defendant admits. If it were so, the plaintiff would he punished for the misfortune, negligence, or dishonesty of the defendant. The case of Moore’s executors, 2 Mb. 330, referred ■to by counsel, seems to us to have no bearing on the present ease.

The judgment of the Circuit Court is affirmed, and this Court award to the appellee five per cent, damages on the amount of his judgment in the Circuit Court.

(a.) See Wash v. Foster, 3 Mo. R., p. 205.


author: M’Gikk, C, J.,

text:
    Revis v. Lamme & Brothes.
    Parties are bound to set out their names, Lamme & Brothers is not a proper descj'ip* tion of the plaintiffs.
    ERROR from the Boone Circuit Court.
   M’Gikk, C, J.,

delivered the opinion of the Court.

Lamme & Brothers brought their action of debt before a Justice of the Peace on a note made by the defendant to one Mark Revis, and assigned by him to Lamme & (208) Brothers, by the name of Lamme & Brothers, and by no other name. The summons is to answer to Lamme & Brothers. The plaintiff's before the Justice had judgment, and the defendant appealed to the Circuit Court. When the cause came into the Circuit Court, the appellant moved the Court to reverse the judgment and to quash the summons, because the names of the plaintiffs were not given; which motion the Court overruled, and gave judgment for costs. The appellees then moved the Court to dismiss the cause from the docket, because, as they alledged, the judgment before the Justice was rendered by default, and, therefore, no appeal could lie till the party had first moved the Justice for anew trial, which was not done. The Court sustained this motion, and dismissed the cause, and gave judgment generally in the case for costs. As to the last motion, it will he enough to say, that the record does not show that the judgment before the Justice was by default. The last motion was predicated on a fact not supported by the record. So that no question can ansi as to the propriety of the appeal.

The case being dismissed, we will not order it to he reinstated. Whore the pro-, ceedings are by writ of error, a mandamus would no doubt he an appropriate remedy. See the case of Chambers v. Astor, 1 Missouri Rep. 327. But here there is a judgment for costs, and a motion to quash proceedings has been overruled. These things are fit subjects for a writ of error to operate on.

The only point arising out of the case is, did the Court err in refusing to quash the summons and proceedings ? This Court is well satisfied that the Court erred on this point. The law requires that the parties should set out their names. If the suit had been in the name of Lamme & Co., it would clearly have been had; and in this case it is as bad, if not worse. Lamine & Brothers is no proper description of the plaintiff's.

The judgment of the Circuit Court, so far as that Court refused to quash the summons and proceedings had before the Justice, and sp far as respects the costs, is re, versed. The plaintiff in error recovers the costs of the writ of error,


author: M’Girk, C. J.,

text:
    Thompson v. Curtis.
    1. An appeal from a Justice of the Peace, on a judgment by nil dicitj is good without a motion for a new trial.
    2. After an appeal is dismissed, the Court cannot render j udgment for the debt, &c^ (Note a.)
    ERROR from Ray Circuit Court.
   M’Girk, C. J.,

delivered the opinion of the Court.

This was an action of assumpsit brought on a note by Curtis against Thompson, before a Justice of the' Peace. On the trial day the parties appeared, and the note being produced, the defendant said nothing in defence of the action. Judgment was given against him % he appealed to the Circuit Court. When the cause came there, the appellee, Curtis, moved the Court to dismiss the appeal. The Court sustained the motion, dismissed the appeal, and then gave judgment for the amount of the debt, costs, &c. To reverse which, the cause is brought here. It is assigned for error, that the Court dismissed the appeal contrary to law. And secondly, that the Court erred in entering up judgment for the debt and costs, after the appeal was dismissed. The reason all edged for dismissing the appeal was, that it was taken and allowed contrary to law. The law not permitting an appeal till a motion is made for a new trial, and that is refused. Whereas, in this case, the judgment was by default. The record shows that the defendant appeared and said nothing.

It is argued by Mr. Rees for the defendant in error, that a judgment by nil dint is a judgment by default, as much so as where the party never appeared.

It is admitted by this Court that it is a judgment for default of defence, and so is a judgment after a demurrer. There the entry is, that the action remains undefended, and says nothing further. It seems clear, upon a view of the statute, that the sort of default contemplated by the statute, in such a case as this, is a default of appearance. By the 12th section of the same act, the Legislature say, that if the defendant fails to appear on the return day of the summons, and it shall appear that he has been legally served with process, and the plaintiff’s demand is founded on a note, &e., it shall be lawful for the Justice to give judgment by default, &c. This shows the sort of de(210) fault the act intends in the 22a section, where it is said, if the judgment is by default, there shall he no appeal till the defendant has applied to have the judgment set aside, and that has been refused.

With regard to the other point, was it right to give judgment for the debt after the cause was dismissed ? We are unable to discover the principle on which this judgment can he sustained.

The judgment of the Circuit Court is reversed, with costs.

(a.) See Barrs v. Holland, 3 Mo. R., p. 47.


text:
    The State v. Foster.
    1. The arrest of a judgment is a final decision, and a. writ of- error will lie thereon.
    2. An indictment, charging the defendant did suffer a gambling device to be set up and used in his house, at which, a game of. chance called. Loto was played, &c., is good.
    ERROR tm Saline Circuit Cburt.
   Tompkins, J.,

delivered the opinion of the Court.

The defendant was indicted in Salina Circuit Court for suffering a'gambling device called a Shuffle Board to he used at his house, at which a game of chance called Shuffle Board.was played for money and property. Plea not guilty." Verdict guilty. The judgment was arrested, and thereupon this writ was sued out.

The defendant in error insists that there is here no judgment, and that consequently the writ of error does not lie. The language of the statute is, " that writs of error on the final decision or judgment of the Circuit Court, shall issue on demand as a matter of right. The act of the Court arresting the judgment is a final decision, and is virtually an acquittal (for the time present) of the defendant.” It is the opinion of this Court that the writ of error well lies.

, The defendant’s counsel did not contend that the indictment was defective. The Court, however, have inspected the indictment, and believe it to be good. See Lowry v. State of Missouri, p. 724 of the printed decisions of this Court. The indictment in that case charged that the defendant, Lowry; did suffer a-gambling device to he set up and used in his house, at which a game of chance oalied Loto-was played, (211) &c.; and the offence was decided to be well ohargedi This indictment is almost a copy of that decided to he good by the Court sitting at St. Louis.

The decision of the Circuit Court of Saline county, arresting the judgment in this cause, is reversed., and this Court proceeding to give such judgment as the Circuit Court ought to have given, do assess the fine of the plaintiff in error to $50, &c.


author: M’Girk; C. J.,

text:
    Alexander v. Hayden.
    1. The Court can assess damages without the intervention of a jury if neiher. party require one.
    2. In an action on an assigned note, the plaintiff need not show that he sues in the character of assignee.
    3. The Supreme Court considers nothing, as error which, has not been decided on-below.
    ERROR: from the Circuit'Court of'Howard'county..
   M’Girk; C. J.,

delivered the opinion of the Court.

Hayden brought an action of assumpsit on a writing for the payment of $80,‘ ih‘ commonwealth’s paper.. On the declaration an-attachment was sued out, and after an order of publication-the defendant not appearing, judgment was rendered for the plaintiff. The defendant brings a writ of error to reverse this-judgment. Mr. Wil--son, counsel for the plaintiff'in error; assigns-for error, first, that the affidavit is insufficient. And secondly, that the order of publication, is insufficient. And thirdly,that the Court erred in assessing the damages without the-intervention of- a jury.

We will notice the thircherror first. The statute of'the State regulating the practice at law, says,-that if neither party require a-jury,the-Courtshall assess the damages, &c. The attachment'law provides that if the damages are liquidated, or are ascertainable by a writing, then the Court shall assess the damages, otherwise a writ of inquiry shall be awarded.' In this we are satisfied no writ of inquiry was necessary.

The next error we will consider is, whether the order of publication was sufficient. The law requires that the publication should notify the defendant that a suit has been commenced, and shallshow-the nature and amount of the action. The-law says the (212) publication shall show the-nature and amount of the action. This would seem to be sufficient. But the plaintiff’s counsel contends, that as in this case the plaintiff sues on an assigned instrument, that the notice should show-that the plaintiff sues in ifis character of assignee.- This Court is of a different opinion. The only question to be considered is, the extent and meaning of the words : the nature of the action: . The -form of the action shows as-much of the nature as the law requires.. The nature and distinctive character of assumpsit are clearly seen, when put in contradistinction to trespass, to et armis, covenant or debtyand though in this case the defendant may know he never made any assumpsit to the plaintiff, yet if he made an assignable instrument he must know that very instrument'may have come into the bands of the plaintiff. There is nothing in this objection. The last error is, that the affidavit is insufficient. The sufficiency of the affidavit-will not be considered, be- • cause the law is, that the Supreme Court shall not consider any matter as error, other than that expressly decided on by the Court below. Nothing appears by the record which shows that there was any decision-made by the Circuit Court on the sufficiency of the affidavit. It does not appear that the attention of that Court was ever oalled to that point. It is the business of the plaintiff to see that his affidavit is suffi.•-cient, for in exparte proceedings the plaintiff in every step he takes, acts at his own peril, and the Court will only watch over the proceedings with common care, and not like hired counsel would. In this case the affidavit is the act of the party, and may be brought before-the Court on a motion to dissolve the attachment. And after the cause is ended, it may be brought before the Court on a motion made by the defendant to set aside the proceedings for irregularity, and if this motion is improperly refused, and the matter is properly saved by a bill of exceptions, there can be a redress by a writ of error.

According to this view of the record and the. case, the judgment of the Circuit-Court is affirmed.


text:
    Miller v. Conway.
    A person injured or defrauded by any fraudulent conveyance, may maintain an ac-tion of debt for double damages against the parties privy thereto, before conviction;», of the criminal charge.
    ERROR to St. Louis Circuit Court.
   Tompkins, J.,

delivered’the opinion-of the Court.

This is an action on the case, founded on the 39th section of the act concerning crimes and misdemeanors. It was brought to recover damages for loss which the plaintiff alledges he sustained by the fraudulent conduct of the defendant. After; verdict for the plaintiff below, the Court arrested the judgment, because there was-no conviction of the defendant alledged in the declaration.

The defendant in error insists that the true construction of the statute requires that such conviction should be stated in the declaration, and that the declaration is erroneous in stating several distinct causes of action in one count. On this last reason for sustaining the judgment of the Circuit Court, the counsel have not insisted.

The action is founded on the 39th section of the act concerning crimes and misdemeanors. The words are: “that all and every the parties and others being privy to any fraudulent conveyance of any lands, &c., he, she or they so • offending shall, on-conviction, be' fined in a sum not exceeding one thousand dollars; and shall, moreover, he liable to any and every person who may be injured or defrauded by any of the (214) means aforesaid,.in double-damages, to be recovered by. action of debt, or on the case, in any Court having jurisdiction thereof.”

The Court is inclined to- the opinion that the Legislature did not intend conviction of the criminal charge to precede the action for damages. If we regard the construction of the sentence, the sense seems plain, shall on conviction be fined in a< sum,” &c., and shall moreover be liable.”

But it might be asked for what purpose should conviction precede the action for damages, and he alledged in the declaration. If it be a material allegation, it must he proved. Certainly every rule of evidence would be violated by making the record of conviction evidence of the plaintiff’s right to recover in a civil action.

The judgment of the Circuit Court is reversed, and the cause remanded for further, proceedings in conformity with this opinion.


text:
    Vincent, (a man of color,) v. Duncan.
    li A negro may be hired to work at'th'e Saline in Illinois for twelve months without! becoming free.
    3. A negro hired in good faith to work at the Saline for one year, may at the end of that year be hired a second, without working his freedom.
    s. An involuntary escape of the negro at the end of twelve months, will not cause a forfeiture.
    4. If the owner of slaves.take them into Illinois with intent to residft-there, and do reside there, keeping the slaves, they become free.
    5. If the owner stay in Kentucky, and send his slave to work in Illinois, he becomes free. (Note a.)

    6. A slave is incapable of acquiring-a permanent settlement or regular domicil by residence.
    7. The Constitution of Illinois cannot- be controlled by the ordinance of 1787.
    8. The admission of A. that he is a .slave, is no evidence against him in a suit for freedom.
    9. A sjave who resided at the Ohio Saline as a-laboror,in the year 1817, is entitled to his freedom.
    ERROR to St. Louis Circuit Court:
   Tompkins, J.,

delivered,the opinion of the Court.

This is an action for-freedom under the statute of this State,'.hiough't by Vincent (215) against Duncan. The defendant pleaded the general issuey and that the plaintiff was a slave. On both which pleas issue was joined and found for the defendant,, and judgment was given accordingly. To reverse this judgment Vincent has brought up this case by writ of error.

It was in evidence that the plaintiff h’ad been'hired- to labor at the Illinois Saline,. near Shawneetown, from the year 1817 till the-year 1825, when he was taken-awi' carried bound to Kentucky; that he was the reputed slave of a family in Kentucky by the name of Duncan. That John Duncan, and sometimes the defendant, were in the habit of going to the Saline aforesaid, and hiring the plaintiff out and receiving pay for his hire. That the plaintiff, after remaining there some time, became disobedient to James Duncan, and discovered an unwillingness to go to Kentucky with James Duncan, and on some pretence got permission-of James Duncan to stay at the Saline to settle his affairs; that finally he was taken and carried by force as above mentioned. That in 1826 he was delivered by John Duncan to the defendant, to be-disposed of at the defendant’s pleasure. That since the plaintiff had been in St. X>ouis, he had admitted himself to be the slave of James Duncan.

The Court instructed the jury that by the Constitution of Illinois, the plaintiff might lawfully have been hired at the Ohio Saline in Illinois, from year to year, without being removed to any other State at the end of each year, without “ walking” his emancipation.

Second. If the jury are satisfied that the owner of Vincent, residing in Kentucky, desired to withdraw him from the Saline, and attempted to do so, but was prevented-by Vincent, that in such case Vincent cannot recover.

Third. That under the ordinance of 1787, the bare fact that Vincent wrought at ihe Illinois Saline, from 1817 till 1825, does not work his emancipation.

Eourth. That under the ordinance of 1787, the plaintiff cannot lawfully claim his freedom by reason of any residence in Illinois, which does not amount to a permanent settlement and the acquisition of a regular domicil there.

Fifth. That the- Constitution of Illinois is not and cannot be controlled by the ordinance of 1787, as to the existence of slavery within that State'.

Sixth. That if the jury shall be of opinion that the plaintiff constantly, down to the fall of 1829, when this suit was brought, acknowledged himself a slave, such (216) evidence is legal and valid, and they may find their verdict upon it.

These instructions are assigned for error.

First. By the Constitution of Illinois, negroes may be hired to work at the Saline-if they be not hired for more than twelve months at a time. If a negro were really hired to work at the Saline for five years, the fact that the negro, at the end of each year, was removed over to Kentucky, and afterwards brought back, would not cure' the fraud. We conceive then that if the negro were in good faith hired there for one year only, that at the end of the first year he might be again hired another year, without being taken across the line of the State.

In this instruction, then, nothing wrong is seen.

Second. If the owner of Vincent could lawfully hire his negro for twelve months at the Saline, an involuntary escape of his negro at the end of the year would hardly be construed to cause a forfeiture : but it could hardly be conceived that the evidence-here given could warrant such an instruction. It rather appears that the negro was-unwilling to go, and the master was unwilling to use force.

The instruction then is wrong.

Third. Nothing can be conceived more vague than the instruction here asked.. The ordinance was made to prevent the introduction of slaves into the Territory of which Illinois was then a part. This Court has several times decided, that if the-owner of slaves took them with him into Illinois, with intent to reside there, andidid reside there, keeping his slaves, it was a fraud on the ordinance, and the slave became free. If he stay in Kentucky, and send his slave over to Illinois to reside there, it is equally a violation of the provisions of the ordinance. The evidence here is, that his owner hired him to labor there. Had the negro eloped from his master and gone over to Illinois without his owner’s knowledge or consent, the case is provided for by the act itself. The state of the case did not warrant the instruction. It might mislead the jury, and is wrong.

Fourth. The object of this instruction is not easily perceived. It appears to the Court that a slave is not capable of acquiring either a permanent settlement or regular domicil by residence. This instruction is also unwarranted and erroneous.

Fifth. This instruction is not erroneous.

Sixth'. Any fact admitted by the plaintiff might be given in evidence against him,’ and he would be reduced to the necessity of disproving such fact; but whether he' be a slave or not, is a conclusion of law from certain facts which may or may not exist. Such an admission, made even by a lawyer, would be no evidence.

(217) This instruction Was surely wrong.

The counsel for the plaintiff" prayed the Court to instruct the jury, that if the plaintiff resided at the Ohio Saline as a laborer, in the yeas 1817, by the consent of his master, he was entitled to his freedom. This instruction was refused. The Constitution of Illinois was adopted in Dec. 1818, and it was in evidence that the plaintiff" was hired at the Saline in 1817, and remained hired there till 1825. This instruction ought to have been given. The judgment of the Circuit Court is reversed, and the cause is remanded for further proceedings in conformity with this opinion*

(a.) See Wilson v. Melvin, 4 Mo. R., p. 595.


author: Wash, J.,

text:
    McDonold v. Franklin County.
    1. Commissioners are not liable individually, when they have complied strictly with the law of their appointment.
    2. A contract made by Commissioners with legal authority on account of a county,, will be enforced. (Note a.)

    ERROR from St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action of assumpsit brought by McDonoId against the county for the building-of a Court House. The Commissioners appointed by statute let out the building as directed! by law, and McDonoId became the lowest bidder. He executed a bond for the-faithful performance of the work, and the Commissioners, styling themselves Commissioners of Franklin county,” gave him two promissory notes for the amount of his bid, one of which is the foundation of the present suit. The .declaration contains six counts. The four first on the note, the fifth on the special verbal contract of letting, and the sixth on an account stated. The defendant pleaded non-assumpsit generally, and had verdict and judgment in the Circuit Court, to reverse which the plaintiff now prosecutes his writ of error. The evidence given on the trial is preserved by a bill of exceptions, and shows amongst other things, that the Commissioners appointed by the act of 1818, erecting the county of Franklin, in pursuance of the authority given them in said act, proceeded to select a site for the county seat, laid out and sold a number of lots in the new county town ; built a jail and paid for it from the proceeds of the lots sold, and having a surplus in their hands, after paying for the jail, of some seven or eight hundred dollars, proceeded to (218) build a Court House, and entered into the contract sued on. The funds arising from the sale of lots proved insufficient to pay for the Court House, and the county now insists that it is not liable for the balance, In comparing the evidence with the statute it will be seen that the Commissioners pursued strictly the law of their appointment. The act prescribes no mode in which they shall contract for the county, but directs that the money arising from the sale of lots, shall be first applied to the building of a jail, and the remainder, if any, shall be by them applied towards building a Court House aud other public buildings,” &c., leaving the Commissioners to select such mode of contracting and exercising their powers as might be convom ient and-proper.

The law of this case is correctly settled in the suit of Laughliu et al. v. McDon-old, which was brought to recover the amount of the note sued on in the present case, from the Commissioners in their individual characters, on the ground that they had exceeded their authority, and which, after recovery in the Circuit Court, was brought up to this Court and reversed. That case, as well as the present, is clearly distinguishable from that of McClintic v. Fort Summers et al., decided by this Court, on which the defendants rely.

In the latter case the Commissioners named jn the act establishing the county ot Montgomery, proceeded without regard to the law of their appointment, and on that ground were made responsible in their individual characters. In the present case it js shown that the Commissioners conformed strictly to the law, and for that reason could not he made liable, but have bound the county by their contract. It would be a stigma npon the law if a contract made by the Commissioners in the strict line of their duty, and by legal authority, for and on account of the county, and of which the county has derived the benefit, could not he enforced.

The judgment of the Circuit Court is erroneous, and is therefore reversed with costs, and the cause remanded to said Circuit Court to enter up judgment in conformity with this opinion.

(a.) See Ruggles v. Washington county, 3 Mo. R., p. 496.


text:
    The State v. Henry, (a slave.)
    A bill of exceptions does not lie in criminal cases.
    ERROR to St. Louis Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

This was an indictment in the Circuit Court of St. Louis county to which the de(219) fendant pleaded not guilty. On the trial the State produced a witness named Joseph Lee, a colored man, who was alledged to be the owner of the propertycharged to have been stolen. He testified that he was a barber in the city of St. Louis, and -kept a shop for carrying on his trade: that the prisoner had frequently been in his-shop and knew the situation of the different articles therein, and in the absence of the witness frequently sold articles for him. He further stated that some time within a year before the trial, a bottle of Cologne water of the value of one dollar had been stolen from his shop, and that he charged the prisoner with taking it; but the prisoner denying the taking, the witness told him he could prove it. The prisoner then admitted he had taken the bottle of water, and offered to pay the witness one dollar for it. The witness refusing to receive the pay, insisted on having the bottle returned, and it was accordingly delivered to him by the prisoner. Wo other evidence of the freedom of Joseph Lee was offered. The counsel for the prisoner moved the Court to instruct the jury to find for the prisoner, because there was no competent evidence of the fact that Joseph Lee, who is chaiged in the indictment to be the owner of property therein mentioned, is a free man. The Court gave the instruction, and the State excepted to the opinion and instruction of the Court. The prisoner being acquitted, a writ of error is prosecuted to reverse the judgment of the Circuit Court. The counsel for the prisoner did not argue this case. By the Circuit Attorney, two points are made:

First. That the evidence was competent and improperly excluded.
Second. That a bill of exceptions lies in a criminal case.

First. The Court thinks that the testimony was competent, and the instruction improperly given.

It is not necessary to say whether property in the charge of a slave could be properly charged in an indictment to be his property, for it does not appear that Joseph Lee was a slave; but his keeping a barber’s shop and selling articles in that shop is such evidence of freedom as ought to have gone to to the jury.

Second. At common law the bill of exceptions does not lie. The statute gives it only in civil cases.

The opinion of the Court is, that the writ of error be dismissed.


text:
    Cartmill v. Hopkins.
    l. An instrument of writing will not be considered sealed, unless by some expression in the body of the instrument itself, the maker should show that he intended it to be considered a specialty. (Note a.)

      •S. A simple removal from a State where a contract was made, to another State, will-not, of itself, prevent the running of the statute of limitations. (Note 6.)
    ERROR from St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action commenced before a Justice of the Peace. Judgment was given by the Justice for the plaintiff. The defendant appealed to the Circuit Court, where upon a trial de novo, judgment was rendered for the defendant; to reverse which the plaintiff has brought his writ of error into this Court. As appears from the hill of exceptions, the case was submitted to the Court on the following case •agreed between the parties. “ That the instrument sued on (a copy of which is set forth in the summons issued by the Justice before whom this cause was commenced) was made in the State of Kentucky, where the parties then resided, and where the •plaintiff still resides. That the defendant, about the time the money in the instrument sued on mentioned became due, as early as April, 1819, removed from the State of Kentucky and settled at Edwardsville, in the State of Illinois, where he continued to reside until some time in the year 1827, when he removed from Edwardsville, Illinois, to St. Louis, in the State of Missouri. On this state of facts, the defendant insisted on the statute of limitations as a bar to the plaintiff’s action. And the plaintiff contended and insisted that the plea was bad, because the action was founded on a sealed instrument, and that even if the Court should be of opinion that the instrument sued on was not under seal, the defendant ought not to he permitted to plead the statute of limitations in bar.” The Court decided that the instrument sued on was not under seal, and that the statute of limitations was a good plea in bar.” There is nothing to show that the original note or obligation sued on was ever before the Court. It is no other way described than as “ the instrument sued on, (a copy of which is set forth in the summons issued by the Justice before whom this cause was commenced).” In referring to the copy of the note, as copied into the record from the Justice’s summons, we find it set out in the following words and figures: “On or before the first day of April next, I promise to pay Thomas Cartmill, or order, one hundred dollars, for value received this 24th day of April, 1838.

WM. H. HOPKINS, f>. s.]
Attest, Stephen Mac3tobi.and»

(221) The Circuit Court ought unquestionably to have had the instrument before it in order to haye determined whether it was sealed or not. No copy made by the Justice, however accurate a fac simile, would answer. It might be sufficient on this point alone to dispose of the cause, but two other questions have been presented, which it may be well to settle.

First. Is tlie instrument, as set Qjft and .described in the summons of the Justice, a sealed instrumsnt? And second, did the removal of the defendant prevent the running of the statute of limitations in his favor ?

The doctrine in Virginia on a statute similar to our own in regard to scrawls, (J Wash. 270,1 Mimfori 490, and 2 and 4 Muufori 442,) as cited and read by the defendant’s counsel, seems to us the true doctrine.

The maker of an instrument should show by some expression in the body or testimonium of the instrument itself, that he intended it to be considered and taken as a specialty. As to the second point, since the case of Bobb and Shipley, decided by this Court, it has been considered settled that a simple removal from the State where a debt was contracted, to another Slate, would not of itself prevent the running of the statute. It might or might not defeat or delay the bringing of the plaintiff’s action. The case of M’H.ugh and Hancock, also decided by this Court, and which has been relied on by the plaintiff’s counsel, is not thought to conflict with that of Bobb & Shipley. Under this view of the case, the action was barred before the act of 1825, and the other points in the cause need not be noticed. Upon the whole, the judgment of the Circuit Court is affirmed, with costs.

(a.) See Boynton v. Reynold’s, 3 Mo. R., p. 79; Grimsley v. adm’r. of Riley, 5 Mo. R., p. 281.

(b.) King v. Lane, 7 Mo. R., p. 241.


author: M’Gikk, C. J.,

text:
    Hays v. Waller.
    si. In a civil action for a malicious prosecution, the defendant may give evidence oi what he swore on the trial of the indictment. (Note a.)

    3. Testimony, showing that a witness swore differently on a former occasion, is admissible. (Note 6.)
    APPEAL from the Circuit Court of Jackson county.
   M’Gikk, C. J.,

delivered the opinion of the Court.

This v?as an action brought by Hays against Waller for a malicious prosecution not guilty was pleaded, and issue thereon. The first error complained of is, that the Court permitted the defendant to give evidence as to what he swore before the Justice who took the original examination; and secondly, the Court erred in permitting testimony to go to the jury, to show that Polly Medlock, a witness for the plaintiff, had sworn differently before the Justice on the original examination.

It is contended on the part of the appellant, that the law will notallow the prosecutor, when defendant in a civil action for a malicious prosecution, to prove what he swore on the trial of the indictment, unless the offence was committed when no one was present but the prosecutor, and that, therefore, the rule of necessity alone must govern the case, and that in this case it is apparent on the record, that Polly Med-lock was present when the supposed offence was committed, as well as the prosecutor.

If the rule above given be the true rule, yet the Court did not err in admitting the prosecutor’s testimony, for it appears by the record, that after the hog was killed, cleaned and hung up, she did not see it any more, and that when hung up, it had the ears on; then the prosecutor swore that when the hog was hung up, the ears were on, and that he then went away for a.short time, and when he returned'the ears were cut off, so that it is apparent that none could swear to the fact of the ears being cut off but the prosecutor.

(223) Admitting the rule to be Gorrect, as contended for by. the appellant, the Court did not err on this point. It is laid down in many books, that if no one was by when the offence was committed, the defendant in the civil action may give evidence of probable cause, and that acquits him at once 3. and that to do this, he may prove what he swore on the trial of the indictment. (See Bid. N. P. 14, Peake’s Evi., top page 350.) On this objection there is.no error.

The next objection is,.that testimony, was admitted to show that a witness swore differently on a former occasion:. we see no objection to this. It surely is law to attack the credit of a witness by-showing that he stated or swore-differently on some other occasion: there is no error on this point.

The judgment of the Circuit Courtis affirmed, with, costs.

(a.) See Hickman v. Griffin, 6 Mo. R., p. 41.

(b.) See Garrett v. The State, 6 Mo. R., p. Abel v. Shields, 7 Mo. R., p. 129.


author: M’Gikk, C. J., T.ompkins, J.

text:
    Johnson v. White.
    j. A contract for two dollars and forty- pouuds-ofi beef is n.ot entire in its nature.
    3. On a contract to pay money and property, debt will be sustained for the amount of money.
    i. An order for money and property is divisible.

      4. The Court gaye judgment without finding a verdict — held not erroneous.
    ERROR from the Circuit Court of Howard county.
   M’Gikk, C. J.,

delivered the opinion of the Court.

This was an action of debt, originally commenced before a Justice of the Peace. .Judgment was rendered for Johnson, the plaintiff, and the cause was taken to the Circuit Court by appeal. The defendant, White, had judgment. The cause is brought to this Court by Johnson, by writ of error. The summons is in debt, without saying whether the debt was due by note, bond, or otherwise ; and on the trial before the Circuit Court, the plaintiff gave in evidence an order drawn in favor of Johnson by White, on some third person, for two dollars, and also for 46 lbs. of beef. To the introduction of this paper the defendant objected, on the ground of variance, and also on the ground that the beef and the money formed one entire contract, and. that-debt would not He for the beef, insisting, there was no .proper evidence tp sustain the plaintiff’s action.

The Court rejected the order. The defendant had judgment.

The rejection of this order is assigned for error. The objections made by Messrs. Reynolds and Davis, counsel for the defendant in error,, are against the admissibility (224) of the order, and that the contract is entire, and, that debt will not lie on a property note: and secondly, that this evidence amounts to a variance which is fatal., Mr. Wilson, in answer, contends that this contract is divisible, and not entire, and although the beef part of the order does vary from thp summons in debt, yet the plaintiff may well recover.

The defendant’s counsel, to support their position, have cited. 1 Bibb. pp. 356, 487; 4 do. 359; 2 do. 616; 1 Marshal 435, and Sard.. R. 510, in a note.. These authorities have been examined by the Court, and are deemed to be insufficient to sustain the positions.

On the side of the plaintiff in.error, wg are referred to no authorities except 2 Mar ■ shed’s R. 486, Thomas v. Thomas. We have also looked into the books on this subject and find that this contract is not entire in its nature. The case in 2 Marshal’s R. goes the full length to support the plaintiff’s case. That was a contract to pay the hire of a negro, and also to furnish clothes to the negro. An action of debt was brought for tht-hire, and held to be sustainable.

It is to be remarked that in this case the summons of the Justice is not founded on the order at all, nor need it be so founded as the law now stands. The order, therefore, could not vary from.any previous allegation. Here there is no allegation other than that defendant owed two dollars. The proof is that he did owe the money and properly also. This doctrine is supported by a case put in 2 Starkie’s Em. page 85, where it is said.: ‘tit is no variance that the defendant promised other distinct matters in addition, to that alledged, since the proof supports the'declaration as far as is requisite. It-is .true that the defendant did promise that which is alledged, although he did promise some other thing in addition. Therefore a declaration on a contract to pay £52 10s. for rum money, is.-supported by proof of a note- by which- the defendant undertook to pay ¿£52 10s. together with a pint of rum per day. So a promise to deliver a horse which should be worth £80 and be a young horse, is supported by proof of a promise to .deliver a horse which should be worth ¿680 and be a young horse, with warranty that he had- never been in harness. These authorities are sufficient.

The only remaining matter is, whether the order for money and beef is divisible. We think the beef is wholly independent of the money.

There was another point made, which was, that the Court found no verdict, but gave judgment without it. There-is no error on this point. The judgment is reversed' with costs, and the causa remanded for a new trial.

(225) Opinion of

T.ompkins, J.

White gave Johnson, the plaintiff, an order for two dollars and .some beef. The order was not paid, and Johnson sued him in debt, as he well might do, for the money due him. The order was produced as a written acknowledgment that White owed him two dollars: and it is no objection to say that White owed more. Had the action of debt been founded on a note for money and beef, it would have been bad: But Johnson, resorting to what may be called .the common count, had clearly a right" to sue for a part, and give either this order or a note for money and heef in evidence, to establish his demand.- I concur with the Court in the opinion that the judgment’ of the Circuit Court should he reversed.,


text:
    Ford v. The Circuit Court of Howard county.
    In criminal cases, except capital, where the fine, penalty or forfeiture, or any part' thereof, accrues to the county, .the fees for the services of officers and witnesses, where the defendant .is acquitted or proves insolvent, shall be paid out of the coun-. ty treasury.
    MANDAMUS to the Howard Circuit Court.
   M’Girk, C. J.,

delivered the opinion of the Court:

At the last term of this Court, Ford applied to the Court for a conditional manda - mus to the Circuit Court, to audit and allow certain fees to him accrued for services rendered for and on behalf of one Hinch, who was indicted for perjury, and who was convicted in the Circuit Court, hut the judgment was reversed. The Circuit Court made a return to the mandamus, which .is as follows in substance: That these fees were those which had accrued against Hinch by reason of services rendered by the Sheriff for and on behalf of Hinch, and agreeably to the provisions of 30th section of the act of the General Assembly on the subject of fees. The Court considered that said section would not authorize the payment of the defendant’s costs out of the county treasury. On this return the plaintiff’s counsel moved the Court for a peremptory mandamus.

In considering this point we will notice some of the reasons urged by the Attorney General. It is contended hv him that the 30th section- of the said act only intends to point out those cases in which the State should pay costs, and those cases in which the county should pay. It is contended by Mr. Givens, for the plaintiff, (226) that the true construction of this section is, that where the defendant is acquitted, the county shall pay all the costs both of the prosecution and of the defendant. The Court is unanimously of the opinion that this is the true construction of he act. The words of the law are: That in all criminal cases other than capital, and in all cases where the fine, penalty or forfeiture, or any part thereof, on conviction would accrue to any county, the fees of officers and witnesses concerned therein shall he allowed and paid out of the county treasury, if the defendant he acquitted, or where the.defendant or his estate is insolvent 5 .and in all capital cases, where the. fine, &c., on conviction would accrue to the State, the fees in case of acquittal or. insolvency of the defendant,.shall be paid by the State.”

Take the case before us and apply this law to it, and it will readily be seen how the matter stands. The law says where the defendant is acquitted, the fees of the officers and witnesses concerned shall be paid out of the county treasury. Here the defendant was acquitted. Then his case is within the very words of the law. But the counsel for the State contends that the expressions in the statute, the fees of officers and witnesses concerned shall be paid out of the county treasury, only means those fees that may be due to the officers for the services rendered to the State, and the fees due the witnesses for the State, and not those of the defendant. The fees of officers and witnesses concerned are the expressions;' a witness for the defendant is a witness concerned as much as a witness for the State is. Tlie meaning to us is-most clear and obvious.

The peremptory mandamus must go.


author: Wash, J., M’Giek, C. J.,

text:
    The State v. Hardwick.
    if the facts be stated as to time or place with repugnancy or uncertainty, the indict ■ ment will be bad. (Note a.)

    ERROR from the Ray Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an indictment in the Ray Circuit Court, for selling goods, wares and merchandise without license, to which the defendant plead • not guilty, and on which, at the November term of said Court, 1829, he was convicted. A motion in arrest of judgment was made and overruled, and judgment given for the State; to reverse which the present writ of error is prosecuted.

(227) The indictment charges the offence in the following words : “ Ray county to wit: The Grand Jurors of the State of Missouri, for the body of the county of Ray, upon their oath present, that Thomas Hardwick, late of said county, on the first day of November, eighteen hundred and twenty-eight, at the county of Ray aforesaid, with force and arms did deal in the selling of goods, wares and mercandise not the growth, produce or manufacture of this State, at a place occupied for that purpose within said county, without having first applied for and obtained a license for that purpose, agreeably to the provisions of an act of the General Assembly oí the said State, entitled An act imposing a tax on licenses to venders of merchandise and pedlers, approved February 19th, 1825;” the said Thomas Hardwick not re • garding his duty in that particular, but intending to evade the said statute, and unlawfully to defraud the revenue of the said State, did then and there sell to one John Riffle, Sen’r, of the county aforesaid, five yards of cassinett of the value of one dollar per yard; and did then and there sell to-one John Riffle, Jun’r, five yards of cassinett of the value of one dollar per yardand to John Stanley one pound of coffee ; and also then and there did .sell to divers other citizens of said State, divers other quantities of cassinett, coffee and muslin, and other goods to persons to the jurors aforesaid unknown, without having obtained a license as aforesaid,” concluding, against the statute. The reasons - urged in arrest of judgment in the Court below, and relied on.in this Court, are :

First. That it is not shown in the indictment that the defendant had not a license continuing in force.
Second. That in the allegation that the goods sold, &e.,.the word and is put, in place of or in the statute.
Third. That the first averment after the figures 1825, is-not shown to be upon the aath of the grand jury.
Fourth. There is no venue laid to the averment of no license.
Fifth. There is no time laid to the place occupied for selling, &c.
Sixth. There is no venue after the words “force and arms.”
Seventh. That the offence is not an indictable offence.
Eighth. The indictment is repugnant and uncertain as to time and place.

As to the first point, it is sufficiently averred that the defendant had obtained no license, and there could be no continuance of what had not commenced.

There is no force in the second objection ; the statute is in the disjunctive, and (228) would punish the selling.of either. The indictment charges that he dealt in selling all the articles prohibited, and cannot prejudice the defendant.

As to the third, fourth, fifth and sixth reasons urged, it may.be answered, that the. nicety in pleading which requires the words omitted to be cautiously inserted to every material allegation, is not so strictly observed in indictments for inferior offences, as in cases where the life of the prisoner is in danger: 1 vol. Chit. Crim. Law, p. 222, with this further answer as to the fourth reason, that as to a mere omission or non-feasance, no venue need be laid.

As to the seventh point, since the act approved January 22d, and in force the 1st of March, 1829, to amend the act imposing a tax on licenses to venders of merchandise and pedlars, it is very clear that the offence charged is punishable by indictment.

On the eigth point the law. is with the appellant. If the facts be stated as to time or place with repugnancy or uncertainty, the indictment will be. bad; .and if two times or places have been previous mentioned, and afterwards a fact is only laid, then and there,” the indictment is defective because it is uncertain to which it re-, fers: Chit, Crim. Z. And when a .transitory, act or matter of indictment is described as having happened at a different county or time, the proper venue of the indictment must be added, or the indictment will be bad. And when two counties are men-tioned, as Surry in the margin, and then a fact is described as having happened in Middlesex, and afterwards the offence is stated to .have been committed at the • county aforesaid,” without showing which county is intended, the indictment will be ■ had. The case of the King v. the inhabitants of Moor Critehell, in 2 East. 66, is. directly in point. The judgment of the Circuit Court is-therefore, erroneous, and-must he reversed with costs.

M’Giek, C. J.,

dissenting.-

I concur in this opinion except as to the eighth point,•

(a.) See Jane v. The State, 3 Mo. R., 63.


author: Wash,. J.,.

text:
    Alexander v. Haden.
    Where a judgment is rendered in a suit by attachment, on an affidavit not warranted’ by thejstatute, the judgment will be set aside for irregularity, even after the lapse of several years.
    ERROR from the Howard Circuit Court.
   Wash,. J.,.

delivered the opinion of the Court.

At the July term-of the Howard Circuit Court, 1828, Haden, the defendant in error, instituted suit and sued out an attachment against Alexander, the plaintiff in. (229) error, who failed- to appear at the return term of the writ. An order of publication was awarded and duly published, and at the November term, 1828, judgment was entered against Alexander, who, at the last July term of said Circuit Court, moved said Court to set aside the judgment and proceedings on account of irregularity. The Court below overruled the motion, and this writ of error is prosecuted to. reverse that decision.

The only point made by the plaintiff in error in the Court below, and insisted on in this Court is, that the affidavit on which the attachment was sued out is insufficient. The affidavit is in the following words: Joel H. Haden, pl’ff., v. Samuel Alexander, def't. “Joel H. Haden, the plaintiff in this action, makes oath and says, that Samuel Alexander, the defendant in said action, is justly indebted to him in the sum of sixty-five dollars, and this affiant verily believes that the said defendant is not a resident of this State.” For the defendant in error it is insisted that the motion in the Circuit Court to set aside the proceedings was made too late. On both points the law is with the plaintiff in error. The affidavit does not conform to the statute, and is clearly defective. The case of Lane v. Fellows, 1 Mo. R., 353, is in point. There is no force in the objection that the motion to set aside for irregularity was made too late. In 7 John. R., p. 556, it is held that after the lapse of twenty years a judgment ought not to be set aside for irregularity. In 13 John. Rep. p. 550, and 2 Say. p. 333, it is held'that irregular judgmeiits will be supported in some cases after a lapse of less than twenty years, when attempts are made to set them aside by collateral actions. No precise period seems to be fixed, but all' the authorities go to sustain the motion at much later periods than that at which it was made in the case now under consideration. Upon" the whole, therefore, the" Circuit Court erred in overruling the motion to set aside the judgment for irregularity, and its judgment thereon is reversed, and this cause remanded to be proceeded- in in con-' formity to this opinion.'


author: "Wash, J.,

text:
    Thompson v. Curtis.

      An appeal from a judgment by nil elicit, rendered by a Justice of the Peace is Sustainable without a motion and refusal to set aside the judgment.
   "Wash, J.,

delivered the opinion of the Court.

At the last term of this Court a conditional mandamus was obtained by Thomp(230) son, directing'tile Judge of the Circuit Court for the county of Ray, in the first Judicial District, to reinstate a certain appeal between Cyrus Curtis, surviving partner of Ely & Curtis, appellee, and the said William P. Thompson,' appellant, which at the last March term of the said Circuit Court had been dismissed from the docket of said Court, or to signify the cause why the same could not be done. The Circuit' Court refused to reinstate the appeal, and returned- for reason wherefore amongst other things, the judgment of the Justice of the Peace, in the words following:

u This day came the parties aforesaid, and the defendant saying nothing why judgment ought not to go against him, it is considered that the plaintiff have judgment against the defendant for principal and- interest, thirty-two dollars 31 1-4 cents.”— That Thompson had appealed from said-judgment to said Circuit Court, and that Curtis, the appellee, at the March term of said Court, had moved to have the appeal dismissed, on the ground that the same had-been granted by the Justice of the Peace against law, which motion of the appellee to dismiss was sustained, on the authority of the proviso to the 22d section of the'act relating to Justices’ Courts [1 vol. X%., p. 481,] which provides, that no appeal shall be allowed in any case where the judgment shall have been rendered by default, or of non-suit, unless the Justice of the Peace shall first have refused to grant the party aggrieved a new trial, if the same be applied for within twenty days from the rendition of-judgment.” It not appear»-ing that any motion or application was made to the Justice for a new trial. It is contended ihat the judgment of the Justice is a judgment by default; strictly speaking, it is sc. It is a judgment by nil dicit, which is one description of default. But the 12th section of the same act, [Digest, p. 476,] shows that the judgment by der fault contemplated in the statute, is one taken for want of appearance. In the case under consideration the record of the Justice shows that the defendant did appear, and it was not necessary, to entitle himself to an appeal, to move for a new trial, and the Circuit Court erred in dismissing the appeal; and it is adjudged that a peremptory mandamus go from this Court, commanding said Circuit Court to reinstate said appeal, and proceed to hear and determine the same according to law.


text:
    Foster & Foster v. Wallace.
    1. Acreditor is acornpetent witness to increase a solvent estate of a deceased person, (Note a.)

      2. The fact that A,, was merely a security in a bond, may be proven by any witness who knows the fact, as well as by a subscribing witness to the bond itself.
    1. Parol evidence will be admitted to establish the indebtedness of a fraudulent conveyancer, and it is not necessary to produce the bonds or promissory note, if such evidence of the debt be in existence.

      4. The fact of continuing in possession of slaves after the sale, does per se constitute the sale fraudulent and void as to creditors. (Note b.)
    APPEAL from Howard Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

Wallace sued the Fosters, appellants, as executors of Charles Simmons, in an ac-r tion of debt on a bond made by Simmons on the 18th day of February, 1824, for a sum of money to be paid on the 1 st day of May, 1826. The defendants pleaded 1st, non est factum ; 2d, me tinques executors ; and 3d, that Simmons died intestate, and that before the commencement of this suit, Robert Wash was, and ever since has been, and.still is, Simmons’ administrator. Upon the first and second pleas the plaintiff took issue, and to the third plea replied, that the defendants, after the death of Simmons, and before the grant of administration to Wash, took and converted to their own use certain personal property, being part of the estate of Simmons at the time of his death, and that they thereby becatne executors of their own wrong. Upon this replication issue was taken, and on these issues the cause was tried by a jury. Yerdict, on all the issues, was.found for the plaintiff, and judgment thereon rendered.

On the trial, it appeared that Simmons was domiciled and died intestate in Hard!» man county, in the State of Tennessee, in August, 1824, and that administ\,cion of his effects was granted in that State on the third Monday in February, 1825, and afterwards, on 11th day of April, 1827, was granted to Robert Wash. The plaintiff rested his whole right of recovery upon the fact that the defendants had intermeddled with some slaves, the property of Simmons, and thereby had become executors of their own wrong. The slaves charged to be thus intermeddled with, were a 'med John, Tom, Joe, Anthony, Mary, and Sal and her three children, viz: March, Ann and Martha.

To these slaves the defendants set up title in themselves, which title the plaintiff ■(232) insisted was fraudulent against Simmons’ creditors. The plaintiff gave evidence that Simmons formerly resided in this State, and had the said slaves in his pt session part of the time that he resided here; that in November, 1823, he removed lr Hardiman county, in the State of Tennessee, and at the time of his death had all the slaves there in possession, except Joe; that after his death, and before any grant of letters of administration of his estate, the defendants went from this State to Simmons’ late residence in Tennessee, and took the slaves into their possession, and brought them to this State, and claimed and used them as their own. The defendants gave evidence that the slaves Mary and Sal, and the issue of Sal, were and always had been the property of the defendant George, and that Simmons held them under a loan from the said George, who was the father-in-law of Simmons. It was also in evidence on the part of the defendants, that in the summer of the year 1823, the defendant, Josiah, purchased from Simmons two of the said slaves, viz : Tom and John, and that the two defendants purchased from him the slaves Joe and Anthony. Bills of sale for all were produced, except for Joe, and for him none had been given. The plaintiff'gave evidence that when Simmons removed to Tennessee he took the said slaves with him; that at the time of the sale of said slaves he was greatly indebted ; that Simmons continued in possession of the property after he had sold it 5 that Simmons had been five years in possession of the slaves Mary and Sal, and the issue of Sal, and that no writing declaring the loan of them to Simmons had been recorded. The defendants gave evidence controverting these facts, contending that the sales were in good faith, and for full and valuable consideration, and that the possession was not retained by Simmons, that he (S.) had at the time of the sales other property sufficient to satisfy all his debts.

On the trial, John Simmons, brother of the deceased, was offered as a witness hy the plaintiff, who was objected to by the defendants, because the deceased having left no issue, the witness was interested in having the debts paid out of property which could not be reached by representatives of said deceased. For the purpose of showing the consideration given for the slaves Joe and Anthony, the defendants proved that Gaw’s Ex’ors had recovered judgment against Simmons, and the defendant, Josiah, for $131, and that Josiah had satisfied this judgment; and then offered to prove that the said defendant had executed the writing merely as security of Simmons. This evidence the Court refused to allow unless the non-production of the subscribing witness to the writing was accounted for, and it was rejected. To prove '■chat Simmons was indebted before the time of the several conveyances to the defendants, the plaintiff introduced J. Kingsbury to prove that before the date of these conveyances he held Simmons’ bond for $200 or $300, and that on the 19th February, J824, Simmons paid part of the debt, took up his bond, and together with another (person as security, executed to Kingsbury two other bonds for §50 each-, the residue of the original debt, and that his security had, since Simmons’ death, paid these two bonds. The plaintiff not accounting for the non-production of the bonds, the defendants objected to the testimony, but the objection was overruled and the testimony admittt d.

The plaintiff also, for the same purpose, proved and read to the jury an obligation .made i y Simmons on the 16th day of February, 1824, payable to Peyton Nowlin, fot .§441 í'b, and produced said Nowlin as a witness to prove that W. F. Edwards, prior .to Ihe year 1823, held an obligation on Simmons, payable to himself, for a considerable sum of money.; that after Edwards’ death, this obligation came to the hands of Nowlin as administrator, and that in February, 1824, Nowlin delivered it up to Simmons, and received in lieu of it the aforesaid bond. This testimony was objected to for the same reason as that last before mentioned, but the objection was overruled. On the trial, the plaintiff, to show that the defendants held Simmons’ bonds for the payment of large sums of money at the time of his death, introduced John Simmons, who testified that in November, 1824, he was in conversation with George S. Foster, at the late residence of Charles Simmons, in Tennessee, and that said Foster then read to the witness three notes from Charles Simmons, payable to the defendants, for §800 or §1009 each. The plaintiff then produced a copy of the record of a judgment of the Hardiman Court of Common Pleas and Quarter Sessions, in favor of George S. Foster, against the administrators of Charles Simmons, on a bond made by Simmons to Foster, dated 9th November, 1823, for $1000, and at the same time proved that the defendants had placed a transcript of the record of the judgment in the hands of an .attorney, and authorized him to procure an allowance of the said claim in I-Ioward County Court against R. Wash as administrator of Simmons, and that said attorney had made out a copy of said transcript and delivered it to Wash as notice of said (234) Foster’s claim against Simmons’ estate, and that the paper now produced was the copy which he delivered to Wash. The reading of the copy was objected to by ihe defendants, and the objection overruled by the Court.

The plaintiff then produced another writing, purporting to he a copy of the transcript of a record of a judgment of the same Court, in favor of Josiah Foster, against the administrators of the same, and for the same purpose as the former : the reading of which was in like manner objected to by the defendants, and the objection overruled. The plaintiff then produced the depositions of Robert Thrasher, H. C. Warren and William Ramsay. The deposition of Thrasher went to show that Simmons exercised the rights of ownership over the property contended for. Ramsay’s was to the same purpose, as was the greater part of Warren’s. Warren stated, that in conversation with Simmons, he had told him that it was understood that George S. Foster of Missouri held a lien on his property, and that Simmons replied it was a damned lie, that his property was his own, and no man had a lien on it. During the progress of the trial, the defendants, having previously given in evidence that Simmons’ intention of removing to Tennessee was a matter, of notoriety in the county long before his departure, the plaintiff produced a witness to prove that he met Simmons on his way to Tennessee, and that S. told him he was only going to the Potosi Mines, and meant to return. This testimony was objected to, hut admitted by the Court. The Court instructed the jury:

First. If they find that the defendants intermeddled with the property of the deceased before the appointment of an administrator, then they should find for the plain*tiff the sum due him from Simmons, although the property might not have "been of the value of the debt.
Second. If they find that the defendants claimed the property by a conveyance under an absolute bill of sale from Simmons to them, and that the possession of the property did not accompany and follow said conveyance; and that the plaintiff was a creditor of Simmons at the time of such conveyance, and still is such creditor, that then such conveyance is void as against the plaintiff.

The defendants then moved the Court to instruct the jury:

First. That if the defendants’ bills of sale were intended between the parties thereto only as a mortgage or indemnity to the defendants for money loaned or for seeurityships entered into, and such sales were in fact bona fide, such intention or agreement between the parties did not per se constitute such sale fradulent and void, as against Simmons’ creditors.
(235) Second. That if Simmons died intestate, and after his death and before the commencement of this suit, administration of his estate was legally granted to R. Wash in this State, who ever since has been and still is administrator of such estate, that then the defendants are not chargeable as executors of their own wrong.
Third, That if the defendants had color of title to the property with which they intermeddled, they cannot be charged as executors of their own wrong.
Fourth. That if Simmons executed the bills of sale to the defendants to secure them for money loaned him by the defendants, and to secure them for their liability as security for Simmons, that then they cannot be charged as executors of their own wrong for taking such property.
Fifth. That if Simmons, at the time of his death, had his domicil in the State of Tennessee, and there died intestate, and administration of his estate was there granted in tha^Slate, which still remains in full force, and after such grant of administration the defendants took any of the property of Simmons in the State of Tennessee and brought it to the State of Missouri, that such taking and bringing away do not constitute them executors of their own wrong.

All which instructions were refused by the Court, and the following instructions were given:

First. That the declarations of Simmons made before or after the sale to the defendants, and which had been given in evidence, were good evidence to show the nature ot Simmons’ possession or claim to the property, but not to invalidate the title of the defendants.
Second. That if the defendants took the property under a fair claim of right, they are not chargeable as executors of their own wrong.

The defendants claim a reversal of the judgment for the following reasons, viz :

First. Because John Simmons was admitted as a competent witness for the plaintiff.
Second. Because H. C. Warren was admitted, &c.
Third. Because the defendants were not permitted to prove that Josiah Foster was merely security of Simmons in the bond to Gaw’s executors, unless they produced or accounted for the non-production of the subscribing witness.
Fourth. Because p.arol evidence of Simmons’ bond to Kingsbury was admitted in evidence.
Fifth. Because parol evidence of the two bonds made by S. and his security, was admitted, &c.
Sixth. Because parol evidence of the bond of S. to Wm. F: Edwards was admitted, &c.
(236) Seventh. Because the copy of the transcript of the recdrd of the judgment of the Hardiman Court of Common Pleas and Quarter Sessions, between George S. Foster, plaintiff, and the administrators Of Simmons, defendants, was admitted, &c.
Eighth. Because the copy Of the trauscript df the record of the judgment of the Hardiman Court of Common Pleas and (Quarter Sessions, between Josiah Foster, plaintiff, and the administrators of Charles Simmons, defendants, was admitted, &c.
Ninth. Because Thrasher’s deposition was admitted, &e.
Tenth. Because Warren’s deposition was admitted.
Eleventh. Because Ramsay’s deposition was admitted, &e.
Twelfth. Because Donohoe’s evidence of Simmons’ declarations as to' Simmons’ intentions of going to the Mines was admitted, &c.
Thirteenth. Because the Court directed the jury that Simmons’ retaining possession of the slaves after the sale, did per se constitute the sale fraudulent and void.
Fourteenth. Because the Court refused to instruct the jury, that the understanding or agreement between Simmons and the defendants, that the latter should hold the slaves sold to them only as a mortgage or indemnity to them, did not per se constitute the sales void as to creditors of Simmons, if such sales were in point of fact bona fide.
Fifteenth. Because the Court directed the jury, that if the defendants took possession of the property of Simmons after his death, and before any grant of letters of administration, and claimed and used it as their own, or sold or disposed of it as their own, they ought to find for the plaintiff on the plea of ne ungues executors.
Sixteenth. Because the Court refused to instruct the jury, that if they found that Simmons was domiciled and died intestate in Tennessee, with the property then in his possession, and that administration was granted in Tennessee, and then the defendants took the property in Tennesse and brought it to this State, claiming it and using it as their own, they are not chargeable as executors of their own wrong.

First. John Simmons was the brother of Charles Simmons, the intestate. This point will be decided for the appellee, the Cohrt being divided in opinion.

Second. H. C. Warren was a creditor, and it being assumed that Simmons, the intestate, was insolvent, it is contended that Warren was therefore an incompetent witness. The authorities cited go to show that a creditor is an incompetent witness (237) to increase the funds of a bankrupt. The condition of a creditor of an insolvent, appears to be somewhat different from that of a creditor of a bankrupt; a bankrupt Is brought into that condition involuntarily, that is by the act of others, and the law then takes possession of his property for the benefit of his creditors. An insolvent becomes so voluntarily; but it is only assumed that Simmons’ estate is insufficient to pay his debts; for any thing shown here there may be property enough to pay the debts of the deceased, and it is not a necessary consequence that the witness is either to gain or lose by the verdict here given. We are inclined to think that he is a competent witness.

Third. Josiah Foster should have been permitted to prove that he was security of Simmons in the bond to Gaw’s executors, by any witness who knew the fact. Had the executors needed a witness to prove the execution of the bond on the trial of the cause, the subscribing witness should have been produced; but it is not probable that the subscribing witness would, know or be able-to-prove more readily than any other person, who was the principal, or security in the note.

Fourth, fifth and sixth.. In these cases we think no error is committed. The object here was to prove* that Simmons was indebted. Had he been sued on the notes,, they ought to have been produced, because it would have been nefcessary to set out the contents in the-declaration in such manner that the-debtor might plead the recov-,' ery in bar of any subsequent action for the same cause. But here it was not necessary to prove the contents of the bonds. It suffices to know, that Simmons was* indebted, and it is not material whether by bond! or promissory note ;.nor is the precise amount at all material.

Seventh and. eighth. We think no-error was committed here. The object of the plaintiff in producing, these two copies of the record being only to prove that the defendants claimed money of Simmons’-administrator on a judgment of a Court of’ Record, it would have been sufficient for that purpose to have proved that the defendants admitted verbally that they claimed- the- several sums which appear by those copies to have been adjudged" to them,against Simmons’-administrator. Much better then, certainly,.was the copy of the transcript which they, by their agent, had delivered to the administrator in this State, as evidence of their demand. Had it been an. incorrect copy, they mighbhave corrected their own mistake-by producing.a correct copy or transcript of the record.

(238) Ninth, tenth and eleventh. The parts of Trasher’s deposition excepted to,, beginning with the words, Mr. Simmons, before be started to this country,” &e., and the other parts of his deposition subsequently excepted to, are irrelevant and? ought to have been excluded.

The part of Warren’s testimony given in answer to the second interrogatory, and objected to by defendants, relates to the description of property Simmons had in his-possession while he lived, in Tennessee. It goes to- show that Simmons exercised rights of ownership over negroes of the-same- description of those claimed by the defendants, and is properly admitted, except the-words £c acknowledged so to me, contained in the answer to the said second interrogatory, which are irrelevant, and. should have been excluded. The other words excluded from the same answer by the-Circuit Court, are also objectionable, and were-by that Court properly excluded.. The rest of Warren’s testimony should have been excluded»

All those parts of Ramsay’s testimony objected to, and which relate to Simmons’ declarations that the property was his own, and his offering to trade it, should have-been excluded unless the privity of the Fosters had been proved. It is clearly improper evidence.. These points,.then, are ruled for the appellants.

Twelfth. The defendants had given evidence to prove that Simmons’- departure-from Missouri to- Tennessee, was a matter of notoriety in the neighborhood, and Donohoe was introduced by the plaintiff to prove-that he met S, on his way to Tennessee,.and that he declared he was only going to the Mines in Washington countyy and would return in the spring.- The use of the testimony is not very ohv-ious to the Court, hut if it were proper for the defendants to prove the notoriety of his depar-. ture, certainly the plaintiff might rehut the evidence of the defendants, and if the evidence be immaterial, it does not belong to the defendant to complain of an abuse introduced by himself. This point is ruled against the appellants.

Thirteenth. The Court instructed the jury that the fact of Simmons’ continuing in possession of the slaves after the sale, did per se constitute the. sale fraudulent and. void as to creditors, and this is probably the point which was intended to he made. For it is believed that the deed has always been deemed good between the parties thereto, although the vendor may have retained possession after the sale. Authorities on this point are much opposed to each other. We are inclined to rule the point (239) for the appellee, inasmuch as the Legislature have manifested a disposition so to construe such sales, and we believe that by such decision less injury would result to the community.

Fourteenth. There is no evidence on which to found the instruction here required.

Fifteenth. We can see no reason why this point should be ruled for the appellant. It is then ruled for the appellee.

Sixteenth. It does not appear that there was any evidence tending to prove that the slaves were talren away after letters of administration granted. It is then thought useless for the Court to make any decision on it. The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings in conformity with this, opinion.

(a.) See Foster and Foster v. Nowlin, 4 Mo. R., 24.

(b.) Overruled in Shepherd v. Trigg, 7 “ “ 151.