text:
    Foote et al., Appellants, v. Newell et al., Respondents.
    1. By the provisions of an act of the legislature of the state of Indiana the defendant in an execution -was entitled to “ replevy” the same, and obtain a stay of execution for a specified period hy giving a bond with securities in double the amount demanded by the execution, and conditioned for the payment of the full amount of the execution, with interest and costs at the expiration of the stay of execution. This bond the officer was to return with the execution to the office of the clerk who issued the execution, and it was made the duty of the said clerk to record the same, The act further provided as follows : “And such bond, from the date of its execution, shall be taken as, and have the force and effect of, a judgment confessed in a court of record against the person or persons executing the same and against their estates, and execution may issue thereon accordingly.” A judgment was obtained in Indiana, and a bond was duly executed and filed and recorded under the provisions of the aboT^mt. Held, that such bond could not be sued on in the courts of this state as a judgment of a court of the state of Indiana; that it was not entitled in this state, under the constitution of the United States and the act of Congress, to full faith and credit as a judgment of the state of Indiana.

      Appeal from Gentry Circuit Court.

    The thirteenth and fourteenth sections of the act of Indiana of February 4, 1831, are as follows : “ Sec. 13. That any person or persons, against whom any judgment may be obtained, may have stay of execution thereon of thirty days, if the sum for which such judgment shall have been rendered shall not exceed six dollars ; and a stay of execution of sixty days if such sum exceed the sum of six dollars and does not exceed the sum of twelve dollars ; and a stay of execution of ninety days if such sum exceed twelve dollars and does not exceed twenty dollars ; and a stay of execution of one hundred and twenty days if such sum exceed twenty dollars and does not exceed forty dollars; and stay of execution of one hundred and fifty days if such sum exceed forty dollars and does not exceed one hundred dollars ; and a stay of execution of one hundred and eighty days if such sum exceed one hundred dollars; by procuring one or more sufficient securities to enter on the record of the court rendering such judgment a recognizance, acknowledging himself, herself or themselves bail for the payment of such judgment, together with the interest and costs accrued, accruing and to accrue thereon, which recognizance may be entered in open court or before the clerk of said court, and the same shall be considered as, and have the force and effect of, a judgment confessed in a court of record against the person or persons acknowledging the same, and their estates, and execution may issue thereon accordingly. Sec. 14. That when execution of any kind may issue upon any judgment upon which no stay of execution may have been taken under the provisions of the thirteenth section of this act, the officer issuing the same shall endorse thereon that the same is repleviable, and also the costs of the rendition of such judgment; and the person or persons against whom such execution may have been issued may replevy the same for the length of time specified in the said thirteenth section of this act and from and after the date of the rendition of such judgment, and the same may be endorsed on such execution aforesaid, by tendering to the officer having such execution in his hands a bond with one or more sufficient freehold securities, made payable to the execution plaintiff, in a penalty of at least double the amount demanded by such execution, and conditioned for the payment of the full amount demanded by such execution, together with the interest and costs accruing ■ and to accrue thereon, at the expiration of the stay of execution to be fixed according to the provisions of this section and the said thirteenth section of this act; which bond shall toe returned by the officer returning the execution, as a part ■of his doings thereon, to the office of the clerk from whence ■such execution issued; which bond shall be by such clerk recorded ; and such bond from the date of its execution shall toe taken as, and have the force and effect of, a judgment •confessed in a court of record against the person or persons executing the same and against their estates, and execution may issue thereon accordingly.”

      Lewis Sf Shambough, for appellants.
    I. The -court erred in permitting the defendants to file an ■answer at the succeeding term, and in ’overruling plaintiffs’ motion to strike out the answer. The court also should have sustained the motion to strike out parts of the answer. The court should have given the declarations of law asked. The bond had the force and effect of a judgment confessed. It is within the act of Congress. No lapse of time short of twenty years is a bar to the action. (Manning v. Horan, 26 Mo. 570.)

      Vories Sf Tories, for respondent.
    I. The court properly overruled the motions to strike out the answer and parts of the answer. It was filed before default was taken. The bond is not a judgment of a sister ■state within the meaning of the constitution and act of Congress. (See 6 Mo. 463; 1 Mo. 375; 3 Mo. 84; 23 Mo. 375.) This action is not founded upon the original judgment obtained, but upon the bond. The prayer is for the penalty of the bond.
   Scott, Judge,

delivered the opinion of the coui't.

This is an action on what is alleged to be a judgment of the court of a sister state. •

The petition states that the plaintiff, at á term of the circuit court for Wayne county, in the state of Indiana, on the 2d day of November, 1840, recovered a judgment in debt for $201.25 against tlie defendants Curtis, Newell and Hiram Morían ; that afterwards, in November, 1840, an execution issued on said judgment against said defendants endorsed by the clerk of said court; that the same was for making the sum therein named with interest therefrom from the 4th of November, 1840, and might be replevied according to law; which said execution was afterwards, to-wit, on the 30th day of January, 1841, returned by the sheriff of the said county of Wayne, endorsed “replevied by taking a replevin bond” and returning the same to the clerk of said court, executed by the defendants Hiram Morían, Charles B. Newell, Joshua Cranor and Harmon Roland, on the 30th day of Jan“uary, 1841, to the plaintiffs in the sum of $419.41, conditioned that should the said obligors, or either of them, well and truly pay to the said plaintiffs the said sum of $201.25, the amount of said judgment, together with the interest and costs accruing and to accrue thereon, at the expiration of the time given by law, the said bond to be null and void ; otherwise to remain in full force; which said bond was duly entered by the clerk of said court on the order book of said court; all of which will more fully appear by a duly and legally certified copy of said judgment and bond, with all the proceedings done and had thereon herewith filed. The petition further alleged that by virtue of an act of the general assembly of the state of Indiana entitled “ An act subjecting real and personal property to execution” approved January 4,1831, and in force at the rendition of the said judgment, of issuing said execution, and of taking, returning and entering said bond on the order book of said court, the said bond, so entered into by the said obligors and so entered on the order book of said court, became, and from the date thereof had the force and effect of, a judgment confessed in said court by the said obligors so executing the said bond and against their estates, and execution might issue thereon accordingly. The petition then recites some payments on the judgment, and states the balance of it to be $61.83 with interest, and that the judgment for the amount is still in force and effect and unreversed and unsatisfied; and that tbe said bond still remains in full force and effect, not reversed, satisfied or otherwise vacated; whereby an action has accrued to the plaintiffs to demand and have of the defendants the sum of $419.41, and therefore ask judgment for that amount.

Two of the defendants answered, Joshua Cranor and Chas. Newell, denying that any action accrued on the bond to the plaintiffs whereby they were bound for the sum claimed in the petition. They deny that they were ever served with any process, and' plead the statute of limitations of ten years. There were motions to strike out the answer and parts of it, which were overruled. The suit was discontinued as to the defendants not answering. By consent the cause was submitted to the court. The record of the Indiana judgment, and the subsequent proceedings thereon as stated in the petition, were read in evidence. The statute of Indiana was also read in evidence, which directed the bond, executed under the circumstances detailed in the petition, to be taken as, and have the force and effect of, a judgment confessed in a court of record against the person or persons executing the same and against their estates. The court refused an instruction, asked by the plaintiffs, that the act of the legislature of the state of Indiana read in evidence gives to the bond in evidence in this cause the force and effect of a judgment confessed in the circuit court of Wayne county, in the state ¿f Indiana, against the parties to said bond, and'said judgment is binding and obligatory on the defendants in the courts of this state, and may be sued upon as a judgment of a court of record, and judgment may be recovered on the same in the courts of this state. There was a judgment for the defendants.

The constitution of the United States prescribes that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. The act of Congress of May 26, 1790, pointed out the nqanner of authenticating the said acts, records and proceedings, and declared that the records and proceedings should have such faith and credit given them in every court within the United States as they have by law and usage in the courts of the state from whence the said records are or shall be taken. The question involved in this cause is not what faith and credit shall be' given to a judicial proceeding of a sister state, but whether the instrument, the foundation of the action, is a judicial proceeding within the meaning of the constitution and the law. Indeed, if this is a judicial proceeding, it is difficult to find a reason why a state may not declare.any contract or undertaking, on being-filed with the clerk of a court of record, a judgment by concession and having the force and effect of a judgment, and thus make it a judicial proceeding within the meaning of the federal constitution. The statute of Indiana itself did not regard the proceedings under the execution as judicial, for if it had been so regarded it would not have been necessary to declare that the bond be taken as, and have the effect of, a judgment confessed in a court of record. It is not usual for a tribunal performing judicial acts to declare the character of the acts; it is sufficiently apparent from the face of the proceedings themselves.

If a state, in carrying out a policy of her own, disapproved or discountenanced in other states, finds it convenient to give to proceedings having no affinity to judicial ones the force and effect of judgments, the other states are not required by the constitution to give to those acts the force and effect they may have in the state by which they were authorized. Comity requires that nations should respect the judicial proceedings of each other. The constitution exacts this comity between the states as a duty and carries it further than the comity among foreign nations extends. Under these circumstances, it would be great perversion to require the states to give to any contract or undertaking, declared by a state to be a judgment for the sake of a speedy remedy,' the force and effect of a judicial proceeding. The bond is a penal one, being for a sum double the amount of the original judgment. We know how to deal with a penal bond; but what is to be done with a penal judgment ? The plaintiffs claim the amount of the penal bond, which they maintain is a judgment within the meaning of the constitution of the United States. We are not informed whether, by the law of Indiana, an execution issues for the entire penalty, or for the amount duo on the original judgment. We may form a conjecture on this subject, but how singular in judicial proceedings is a judgment for a penal sum to be discharged by the payment of a less at a given time, otherwise to remain in full force. The statutory proceedings and judgment on a penal bond furnish no support to such a course. In such cases, the amount of the damages is ascertained for which the execution is awarded. Can this judgment be said to be final and complete at the date of the bond, if its existence or nonexistence is made by its terms to depend on the happening of a future event ? Before the courts here can declare that this is a judgment to be carried into effect under the constitution, must not the court of the state, where it was rendered, have previously determined whether the event had occurred on which its validity is made to depend ? If our courts do this, are they not merely rendering a judgment in the first instance ancillary to the foreign courts, not carrying their judgments into effect, but aiding them in forming the original judgment ? 1/

We do not deem it necessary .to express any opinion in relation to the action of the court below on the answer, nor as to the sufficiency of it, as the plaintiff by his own showing is not entitled to recover.

If the bond is to be regarded as a bond, the ten years’ limitation would bar an action on it, unless the plaintiffs bring themselves within some exception. The cause of action accrued after the 1st of December, 1835, and this action was commenced in 1859, when the limitation act of the code of 1855 was in force. The cause of action on the bond accrued when the act of 1835 was in force; hence by the provisions of the act of 1865 the statute of limitations of the code of 1885 would govern the action. Under this statute, the statute of limitations did not commence running in favor of the defendants until they came into the state. (Thomas v. Black, 22 Mo. 822; Tagart, adm’r of Stone, v. The State of Indiana, 16 Mo. 212.) We do not s.ee how an action could be maintained on the bond as such, unless the original was produced.

If the bond is to be regarded as a judgment, then the limitation act of 1835, so far as it relates to the judgments, would be the law of the case. Affirmed.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Bailey, Respondent, v. Walker, Appellant.
    1. A promise, to support an action, must be founded on a sufficient consideration. '

      Appeal from Phelps Circuit Court.

    It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.
    Parsons, for appellant.

      Thomas Sf Jones, for respondent.'
   Scott, Judge,

delivered the opinion of the court.

The plaintiff claimed two hundred dozen of oats at twenty-five cents per dozen, amounting 'to ■ fifty dollars. The evidence shows that he was only to, have the oats on paying for the harvesting and stacking of them. If, then, he received the full value of the oats as claimed, he received more than he was entitled to, as he should have- allowed the defendant what was due him for harvesting and stacking them. The record states that the sum agreed upon was one hundred and thirty-three and one-half dollars. This, we suppose, is a mistake, but it would have been better if the parties had amended the record, if there was a mistake in it.

All that the plaintiff was entitled to was damages for a breach of the defendant’s undertaking, if there had been a valid and binding one. It does not appear that the plaintiff ever paid for the oats. If he 'had not, he certainly was not entitled to recover the value of them. It appears that the mother of the plaintiff had the greatest share of the oats, for they were all in one rick, and there is no evidence showing that she ever authorized her son, the defendant, to intermed-dle with them in any way. The interest of her and her husband in the oats was undivided. The husband alone could not authorize the interference of a third person, for in this matter we are to look upon the husband and wife as two persons, as they were so regarded by all the parties to this transaction. The contract with the defendant about his pay for harvesting and stacking the oats was with the husband of his mother. From all we can see, the undertaking of the defendant was a voluntary one — there was no consideration for his undertaking to the plaintiff; and so the court seems to have regarded the matter, for the only instruction given for the plaintiff, and on which the case must have turned, is entirely silent as to any consideration being necessary to support the promise. If a man without any consideration promises to do a thing and fails to do it, he can not be sued for such failure; but if he does undertake it and by negligence does it in a manner to cause loss to him for whom he is acting, he will be bound to make good that loss. The other judges concurring, the judgment will be reversed.


text:
    Pemberton, Plaintiff in Error, v. Pemberton et al., Defendants in Error.
    1. A bequest of personal property by a husband to his wife would be no bar, under the tenth section of the dower act of 1845, (R. C. 1845, p. 431J to her right of dower in the real estate of the husband.
    2. Whether such a bequest would, if accepted, be a bar to the widow’s right of dower in the residue of the personal estate must depend upon the intent and meaning of the will of the husband. If it is manifest from a fair construction of tbe 'will that the testator intended the bequest to be in lieu of dower, the widow must makejier election; she can not accept the bequest and also claim dower as allowed by law.
    3; If a husband bequeaths to his widow a slave belonging to his children by a former marriage, and makes those children his residuary legatees, they will be put to their election, either to relinquish the slave or to renounce the legacies; they can not take both under and against the will.

      Error to Callaway Circuit Cowrt.

    In 1858 Edmund Pemberton, tbé husband of Jane Pem-berton, the plaintiff, died, haying made a will, which substantially is as follows: “Know all men, &c., that I, Edmund Pemberton, of, &c., do this 29th day of April, 1853, make my last will and testament as follows: First, my funeral expenses and all my just debts to be paid; second, I will and bequeath to my wife Jane Pemberton a certain portion of my land, commencing, &c., [describing a tract of about eighty-six acres, including the dwelling house,] to belong to her with all the appurtenances thereunto belonging during her ndtural life or widowhood, and then to belong to my three youngest children William R. Pemberton, Thomas M. Pem-berton, Franklin P. Pemberton; thirdly, I also will my wife the household and kitchen furniture, with the exception of ■three beds, bedsteads and furniture ; fourthly, one dun mare and colt, and one bay mule; fifthly, two cows and calf; sixthly, twenty head of hogs ; she is to select them from the lot of hogs ; seventhly, she is also to have fifteen head of sheep; she is to select them from my flock; eighthly, she is also to have my small wagon and harness ; ninthly, she is also to have two diamond plows, one a two-horse plow, the other a one-horse plow, and two hoes; tenthly, she is also to have all the wheat that is cleared out and boxed up; elev-enthly, I also will my wife Jane Pemberton my negro boy Lewis ; twelfthly, all the corn that is in the crib at this time is to be used by and for the benefit of the family that remains on the farm the present year. - The above named negro boy is at the death or marriage of my wife Jane Pemberton to belong to my three youngest, children as the land. The above named beds are to be good feather beds, good bedsteads and furniture. The above named beds I will and bequeath, one to my son James R. Pemberton, one to my son Edmund P. Pemberton, one to my son Joseph H. Pemberton. All the produce that is raised on the farm the present year I will one-half to my wife Jane Pemberton, the other half to 'be equally divided between Edmund P. Pemberton and Joseph H. Pemberton. All the tobacco on hand, negroes, land, and all the property not heretofore named is to be sold at public auction, the proceeds thereof first to pay all my just debts, the balance to be equally divided between my sis oldest children, John Q. Pemberton, James R. Pemberton, Edmund P. Pemberton, Joseph H. Pemberton, Martha A. Gilbert, Mary Bradley; and lastly, by these presents, I appoint my son Edmund P. Pemberton my whole and sole executor,” &c.
    The widow Jane Pemberton seeks in the present suit to .have dower assigned her in the proceeds of certain slaves, Abigail, Rachel, Sanders, and Martha, that had been sold by the executor of the will of said Edmund Pemberton. The defendants are the six oldest children of said Edmund Pem-berton, being his children by a former marriage. They in their answer set up that said slaves belonged to them by virtue of a gift from their grandfather Nehemiah Hendley, the father of Edmund Pemberton’s first wife, who, it is alleged, gave said slaves to his daughter Susan Pemberton for life with remainder to her children. Defendants also claim said slaves under the will of Edmund Pemberton. After the' death of said E. Pemberton, the defendants recovered possession by suit of said slave Lewis from the widow Jane Pemberton, on the ground that said slave belonged to them under the gift of their grandfather and not to their father.

    This cause was tried by the court without a jury; the court found for the defendants, holding the plaintiff barred of dower in the personalty by her election to take under the provisions of the will and her acceptance of the property devised to her.

      ■Tones Sf Hayden, for plaintiff in eiyor.
    I. The devise of the real estate and the several bequests of personal property and the slave Lewis do not bar the widow of dower in the personal estate. Such provisions, although accepted, do not preclude her from claiming dower in the perssonal estate. (2 Story Eq: § 1088; 1 White & Lud. L. Cas. 311; Co. Litt. 176, b.; ,16 Mo. 242; 21 Mo. 519; 24 Mo. 176; 23 Mo. 398; 5 Mo. 183; 18 Mo. 389; 19 Mo. 469; 9 Mo. 10; 2 Sch. & Lef. 452; 8 Paige, 325; 5 Paige, 597; 5 Dana, 345 ; Riley’s Ch. 205; 2 Yeates, 433; 4 Johns. Ch. 9; 10 Paige, 366; 1 Sandf. 325 ; 5 Hill, 206; 2 Denio, 430 ; 2 Hill, Ch. 46 ; 1 Speers’ Eq. 322; 5 Dana, 345; Sast. Ch. 217; 4 Hen- & Mun. 23; 4 Dess. 274; 1 Benn. 565; 4 Dali. 415; 3 Yeates, 10.).
    II. If such devise and bequests bar her dower in the personal estate, she is entitled, in the case of the failure of the title to the slave Lewis, to have the deficiency made up out of the personal estate. (4 Kent Com. 54, 55; Plowden, 525; Litt. Sec. 287; Co. Litt. 185, b.; Perkins, § 526; Doctor & Student, 1, 2,126, 300; 3 Co. 29, a.)

      Ansell, for defendants in error.
    I. The widow was barred of a. right -to dower in the personalty. She was put to her election. She can not claim under and against the will. (See 2 Story Eq. p. 440; 3 Yeates, 10 ; 7 Cow. 287 ; 3 Eairf. 138 ; 8 Gratt. 83 ; Addis, 350 ; 2 Yeates, 302; 27 Engl. L. & Eq. 154; 1 Den. & War. 94; 4 Monr. 265 ; 5 Monr. 58 ; 4 Dess. 146 ; 2 McCord Ch. 280; 7 Cranch, 370; 5 Call, 481; 1 Edw. 535; 3 Russ. 192; 2 Dana, 343.) The second instruction asked was properly refused. The petition does not allege any partial failure of the provision made for the widow in the will. There is nothing said about the slave Lewis in the petition.
   Scott, Judge,

delivered the opinion of the court.

This is a suit for, the assignment of dower under the dower law of the code of 1845. The testator having devised both real and personal estate to Ms wife, the question arises whether that devise, if accepted, bars the widow’s right to dower in both the real and personal estate. The tenth section of the dower act of the code of 1845, and which is continued in the present code, provides, if any testator by will shall pass any real estate to his wife, such devise shall be in lieu of dower out of the real estate of her husband whereof he died seized, unless the testator, by his will, otherwise declare. In the case of Halbert v. Halbert, 19 Mo. 453, it was held that the bequest of a slaye to a wife, under the section just referred to, did not bar her dower in the real estate. The spirit of this decision is that the tenth section of the act relates to dower in the real estate only, and does not affect the wife’s dower in the personalty. We are of the opinion that this is the obvious intention of the act, and that the section was designed only to extend to real estate, and left the question, how far a bequest of personal estate would bar dower in such estate, to be determined by the rules of the common law. Our statute, unlike the common law, gives a legal right to dower both in the personal and real estate; and a devise or bequest in one is no bar to dower in the other, unless it is so declared by the testator.

This case, then, presents the question, whether the bequest of the personalty to the wife is a bar to her right of dower in the residue of such estate, or whether it is cumulative and to be received in addition to dower. Story thus states the rule: “ If a testator should bequeath property to his wife manifestly with the intention of its being in satisfaction of her dower, it would create a case of election. But such an intention must be clear and free from ambiguity; and it will not be inferred from the mere fact of the testator’s making a general disposition of all his property, although he should give his wife a legacy; for he might intend to give only what was strictly his own subject to dower. There is no repug-nancy in such a devise or bequest to her title to dower. Besides, the right to dower being in itself a clear legal right, an intent to exclude that right by a voluntary gift ought to be demonstrated either by express words or by clear and manifest implication. In order to exclude it, the instrument itself ought to contain some provision inconsistent with the operation of such legal right.” - (§ 1088.) In the case of Herbert and others v. Wren and others, 7 Cranch, 378, Judge Marshall says, “It is a maxim-of a court of equity not to permit the same person to hold under and against a will. If, therefore, it be manifest, from the facé of the will, that the testator did not intend the provision it contains for his widow to be in addition to dower, but to be' in lieu of it; if his intention, discovered in other parts of the will, must be defeated by the allotment of dower to the widow, she must renounce either her dower, or the benefit she claims under the will. But if the two provisions may stahd well together, if it may fairly be presumed that the testator intended the devise or bequest to his wife as additional td her dower, then she may hold both.” In that case, on the will itself, the court determined that the testator did not intend the provision made for his wife to be additional to her dower, and she was not permitted to hold both.

This court would have been aided in its deliberations, if the parties had put the inventory and appraisement of the estate in the bill of exceptions, that it might plainly appear what proportion the personalty bequeathed to the wife bore to the whole estate. But, notwithstanding this omission, the record furnishes some guide on this subject, and satisfies us that the dower given by law did not greatly, if any, exceed the provision made by the w;ill. The family residence is devised to the wife, with a portion of the adjoining farm; the testator evidently contemplating that his widow would carry on the business of farming after his death. Now the particularity with which he specifies the number of each kind of stock, and the various kinds of implements of husbandry, is entirely inconsistent with the idea that she should have any others than those enumerated.' Such an enumeration was entirely unnecessary if she. was to have any more than what was enumerated. The statute giving dower in personalty says it is in the personal estate. The testator, therefore, seems to hare given a' share in every part of it when he did not give the whole. No one acquainted with the modes of thinking and doing business prevailing among the people of Missouri would ever say that the testator, in the will before us, intended that the widow should take both her dower and the provision made for her by the will out of the personal estate. Our statute declares that all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true intent and meaning of the testator in all matters brought before them.

The facts of this case present one of election on the part of the defendants. Story says (§ 1076) “If a testator should devise an estate belonging to his son or heir at law to a third person, and should in the same will bequeath to ,his son or heir at law a legacy of one hundred thousand dollars, or should make him the residuary devisee of all-his estate, real, personal and mixed, it would be manifest that the testator intended' that the son or heir should not take both to the exclusion of the other devisee; and therefore he ought to be put to his election which he would take; that is, either to relinquish his own estate or the bequest under the will.” This would be a case of implied or constructive election. The facts of the present case bring it clearly within the principle stated. The testator devised a slave belonging to the children of his former wife to the plaintiff and made those children his residuary legatees. Now those legatees can not take under the will and against it. If they will take the legacy, they must renounce the slave bequeathed to the wife. The testator did not intend that they should take both to the exclusion of his wife. They must, therefore, be put to their election either to give up the slave, or to hold their legacy of the residue of the estate subject to the claim of the wife for the value of the slave. (Story’s Eq. § 1082, 3, 4.) As this proceeding was not prepared with an eye to any such relief, the judgment will be reversed at the costs of the plaintiff, and tlie cause remanded that the petition may be amended, if the plaintiff desires to do so.

Judge Napton concurring,

judgment reversed and cause remanded.


author: Ewing, Judge,

text:
    The State, Respondent, v. Spain, Appellant.
    1. In an indictment for selling liquor without.a license it is not necessary to state to -whom the sale "was made, or that it was made to some person or ■persons to the jurors unknown.

      Appeal from Webster Circuit Court.

    Waddell, for appellant.
    I. The indictment is defective. . It does not state to whom the liquor was sold; nor does it say to some person to the jurors unknown.
    Knott, (attorney general,) for the State.
    I. The name of the person to whom the liquor was sold need not be stated in the indictment. (Page v. State, 6 ' Mo. 205; State v. Ladd, 15 Mo. 430; State v. Miller, 24 Mo. 532.) ' . ~'
   Ewing, Judge,

delivered the opinion of the court.

This was an indictment for selling liqipoy without license, and the question here is as to the' sufficiency of the indictment. The objection is, that it omits to aver to whom the sale-was made, or that it was made to some person or persons to the jurors unknown. This point was decided by this court in The State v. Ladd, 15 Mo. 432, and the omission to name any person in the indictment held to be immaterial. The offence consists in the sale of liquor without license in the prohibited quantity; and as there could be no sale without a purchaser, the name of the purchaser is in no sense descriptive of the offence, and need -not, therefore, be stated. Neither is it necessary to aver the sale to be made to a person or persons to the jurors unknown, when no one is named; for if such an averment is made, and it is proved that the persons who purchased the liquor were known to the jury, this constitutes no variance, and the averment is mere sur-plusage. The doctrine of this case (State v. Ladd) has been repeatedly recognized by this court in other cases. (Page v. State, 6 Mo. 205; State v. Miller, 24 Mo. 532.) The judgment will be affirmed,

the other judges concurring.


text:
    The State, Respondent, v. Fogerson, Appellant.
    1. An indictment, founded on the fifteenth section of the seventh article of the act concerning crimes and punishments (R.. C. 1855, p. 620), which charges that the defendant did wilfully and unlawfully disturb the peace of a neighborhood “ by then and there cursing and swearing, and by loud and abusive and indecent language,” is sufficient.
    2. To sustain the charge made in an indictment founded on that section it is not necessary to show that every person in the neighborhood was disturbed ; nor would the testimony of individuals be admissible in behalf of defendant to show that they were in the neighborhood and they were not disturbed.

      Appeal from Laclede Circuit Court.

    The facts are set forth sufficiently in the opinion of the court.
    ■-■, for appellant.

      Knott, (attorney general,) for the State.
    I. The indictment is sufficient. The evidence offered by the defendant was clearly irrelevant. The instructions as a whole present the law of the case fairly before the jury.
   Ewing, Judge,

delivered the opinion of the court.

The defendant was indicted, under the fifteenth section of the seventh article of the act concerning crimes and punishments, for disturbing the peace of a neighborhood. The offence under the statute consists in wilfully disturbing the peace of any neighborhood, or of any family, by loud and unusual noise, loud and offensive or indecent conversation, or by threatening, quarreling, challenging, or fighting, <fcc.' The indictment charges that the defendant on, &c., at, Ac., did then and there wilfully and unlawfully disturb the peace of a neighborhood, to-wit, the neighborhood and town of Lebanon, in said county, by then and there cursing and swearing, and by loud and abusive and indecent language, &c.

As a general rule it is sufficient to describe an offence created by statute in the words of the statute, and indeed it is-necessary to do so where the offence may not be as clearly and intelligibly set forth in other'language. But when the words used are in effect equivalent to those in the statute, this verbal strictness is relaxed, and the indictment will be held goodi (1 Chitty C. L. 283.) It is sufficient if the indictment contain enough to inform the defendant and the court of the precise nature of the charge.

In the case at bar the defendant is charged with disturbing the peace of the neighborhood by loud and abusive and indecent language. The offence may be committed by loud and offensive conversation, or loud and indecent conversation. The terms are used disjunctively in the statute, and the offence is well described if the disturbance is alleged to have been committed either by loud and offensive, or loud and indecent, conversation. The word “language,” however, is substituted by the pleader for the word “ conversation.” To this, I think, there is no objection,, as' the former is equivalent in import, if indeed it is not even more appropriate and expressive of the intent of the legislature and descriptive of the offence. It is safest, however, t'o follow the words which the law-maker has chosen to define the offence; and this general rule should not be relaxed, except where the nature of the offence, and all the particulars descriptive of it, are clearly set forth in the language employed in the indictment.

The first instruction given on the part of the State, unconnected with others given at the instance of the defendant, is erroneous, because it does not direct the attention of the jury to ■ a particular circumstance essential to an offence, namely, the disturbance of the peace of the neighborhood. It tells the jury that if they believe the defendant used indecent language, or loud and offensive language, in the town of Lebanon, and that such language was wilfully used, they must find defendant guilty. These facts may have been found by the jury, and yet no offence have been committed, beeau.se no disturbance may have been caused by it. This instruction then, in this respect, was improper. The court, however, gave an instruction embracing all the facts and circumstances constituting the offence, which must have prevented the jury from being misled or from misconceiving the law of the case as given by the court. Upon the whole, therefore, we think there was no error on this point.

It is also objected that the court erred in excluding the testimony of three persons introduced by defendant to prove that they resided on the public square, and were present at the time of the alleged disturbance, and that neither they nor their families were disturbed. This evidence, we think, was properly excluded. It had no tendency to disprove the charge in the indictment, namely, that the peace of the neighborhood was disturbed by the defendant’s conduct, and this was the matter of inquiry — not whether one or two individuals considered themselves disturbed. That they were not, or may not have been, disturbed by the conduct of the defendant was not necessarily inconsistent with the. truth of the charge against him, that the peace of the neighborhood was disturbed. To sustain the charge it is not necessary to prove that every individual composing the community or neighborhood was disturbed, nor could the charge be disproved by the kind of negative evidence offered with respect to two or three persons. The judgment will be affirmed,

the other judges concurring.


author: -Napton, Judge,

text:
    The State, Defendant in Error, v. Biddle, Plaintiff in Error.
    1. Judgment affirmed.

      Error to Webster Circuit Court.

    -, for plaintiff in error.
    Knott, (attorney general,) for the State.
   -Napton, Judge,

delivered the opinion of the court.

The point presented by the record in this case is the propriety of the instructions which the court gave upon the trial. Upon examination, we have not found any substantial objections to them. Some of them are abstractions and might be questioned, if they had tended to prejudice the defendant ; but the instructions applicable to the facts as they were before the jury were correct, and the others were at least harmless.

Judgment affirmed ;

the other judges concurring.


author: Napton, Judge,

text:
    The State, Respondent, v. Stewart, Appellant.
    1. An indictment for a felonious assault with intent to kill is not rendered defective hy any omission to charge therein that the offence was committed “.'on purpose and of malice aforethought.”
    2. In an indictment for a felonious assault with intent to kill, the question of the intent of the accused is a question of fact for the jury; it may mislead them to instruct that the “ law presumes that every man intends the necessary and probable consequences of his acts.”

      Appeal from Laclede Circuit Cowrt.

    This was an indictment for a felonious assault with intent to kill. The defendant moved the court to quash the indictment because it was not alleged that the offence was committed on purpose and of malice aforethought. The motion was overruled. At tlie trial, the court, among other instructions, gave the following: “ The intention is incapable of ■proof; it can only be implied from overt acts; and the law presumes that every man intends the natural, necessary, and probable consequences of his acts; and if the jury believe from the evidence that the defendant assaulted Lennox with a deadly weapon, from which death' might have ensued as a necessary, natural and probable consequence, they must find defendant guilty.”

      Orr, for appellant.
    I. The court erred in overruling the motion to quash. The assault was not charged to have been made on purpose and of malice aforethought. There was no evidence of an assault with intent to kill-. The walking-stick was not a deadly weapon. The instructions given were erroneous.
    Knott, (attorney general,) for the State.
    I. The indictment is good under the thirty-eighth section of the second article of the act concerning crimes and punishments. (R. 0. 1855, p. 567; 9 Mo. 862 ; 19 Mo. 678 ; 22 Mo. 462.) Whether all the instructions are strictly correct or not, they were not calculated to mislead the jury. Taken altogether, they submitted the case fairly to the jury.
   Napton, Judge,

delivered the opinion of the court.

The indictment in this case is deemed sufficient under the thirty-eighth section of chapter fifty of the act concerning crimes and punishments.

We are not satisfied, however, that the instructions presented the law in such a shape to the jury as to enable them to understand their duty. None of the instructions, which are given, made any exceptions in favor of justifiable assaults; and this omission may have been right enough and produced no harm, if, in truth, there was no evidence in the case which rendered it necessary to present such a hypothesis to the jury.

But the instruction in reference to the intent of the defendant was calculated to mislead. The intent of the defendant in making the assault was a question of fact for the jury. The law raises no presumption about it, and it was error for the court to tell the jury that “ the law presumes that every man intends the natural, necessary, and probable consequence of his acts.”

With the concurrence. of the other judges, the judgment is reversed, and cause remanded.


text:
    Kincheloe, Respondent, v. Gorman’s Administrators, Appellants.
    1. After an administrator has appeared in a pr'ohate court and put in a defence to the allowance of a demand against the estate of his intestate, and has obtained judgment in the probate court, and the cause has been taken to the circuit court by appeal, it is too late for the administrator to object that he did not receive a notice of the demand as provided by section sixteen of , article four of the administration act. (R. C.~ 1855, p. 155.)
    2. The affidavit required by the twelfth section of article four of the administration act (R. C. 1855, p. 151) may he made ore terns; it is not necessarily noted on the record.

      Appeal from Wright Circuit Cowrt.

    This was an. application to the probate court of Wright county for the allowance of a demand against the estate of John M. Gorman, deceased. From the record -of the proceedings of the probate court it appears that the plaintiff and the administrators appeared and submitted the cause to the court, and that judgment was rendered for the defendants. An appeal was taken to the circuit court. On the trial anew in the circuit court, the plaintiff offered in evidence the record of the proceedings of the probate court. The court admitted the record against the objections of the defendants. The plaintiff on the trial in the circuit court did not file his affidavit or make oath in open court to his account. The remaining facts sufficiently appear below in the opinion of the court.

      H. C. Ewing, for appellant.
    I. The court erred in admitting the record. It does not show that defendants had notice as required, nor that they waived notice in open court. (1 R. C. 1855, p. 155, § 15, 16, 17; 12 M. 598.) It does not show that the plaintiff filed an affidavit or made oath in open court as required. (1 R. C. 1855, p. 154, § 12.) The court erred in giving improper instructions.

      Knott Sf Hough, for respondent.
    I. The court properly admitted the record.
   Napton, Judge,

delivered the opinion of the court.

The objections, which were taken to the record of the proceedings in the county court, we think, were properly overruled. It is true that the record does not show that the administrator was duly notified according to the requirements of the statute; nor does it appear that he made a formal waiver of notice in open court; but the record shows that he was present at the trial, and succeeded in getting a judgment in his favor.

In relation to the affidavit, which the law requires from a claimant before the county court is authorized to allow, a claim, there is nothing in the record to show whether it was made or not. But there was no point made on this at the trial. If there had been, the affidavit might have been supplied. Besides, it has been held that this affidavit may be taken ore tenus, and is not necessarily noted on the record. No objection to the instructions being insisted on here, the judgment will be affirmed.

The other judges concur.


text:
    Pearce, Respondent, v. McIntyre, Appellant.
    1. Motions to strike out parts of pleadings should contain the parts sought to be stricken out, or those parts should be so designated that they can be readily ascertained.
    2. It is not essential to an arbitration that it should adjust all matters in dif- ■ ference between the parties; an award determining a single one of several matters in difference may be final and conclusive so far as it goes.

      Appeal from Holt Circuit Court.

    This was an action to recover tbe value of carpentry work alleged to have been done by plaintiff for defendant. The plaintiff set forth in his petition a submission by plaintiff and defendant of the value of the said work to arbitration and an award made under said submission by which, as was alleged, it was adjudged and awarded that the sum of 1801.79 was “ due to plaintiff by said defendant for work and labor done at the special instance and request of said defendant.” Plaintiff also claimed in his petition the value of painting and glazing that had not been included in the award. The ' defendant in his answer denied that the award was as alleged in the petition; denied any indebtedness for painting and glazing, and set up matters by way of counter-claim and offset. A portion of the answer was stricken out on motion of the plaintiff.
    At the trial the submission was read in evidence. It submitted to the arbitrators to determine the “ worth” of the carpentry work “ according to the prices of the country.” Plaintiff offered in evidence the award, and it was admitted against the objections of defendant. This award, after affixing values to the various items of work, closed as follows: “Making the sum of $804.75, which we find for Nathan Pearce and against George McIntyre.” Evidence Was also adduced tending to prove the charge for painting and glazing. The defendant introduced testimony tending to prove the offset or counter-claim set up in the answer. The court gave the following instruction at the instance of the plaintiff: “ The award read in evidence is sufficient to prove tbe work done for defendant by plaintiff and the value thereof, with interest, unless they believe from the evidence that some part thereof has been paid, or unless defendant has established his counter-claim or some part thereof; and if so, they will deduct the amount so paid and the counter-claim so proved, and give a verdict for the balance, if there should be such balance.” The court refused the following instruction asked by defendant: “ The jury will exclude from their consideration the paper read in evidence purporting to be an award, and signed by Thomas D. Walter and Franklin Hart as arbitrators.” Instructions asked by defendant with respect to his counter-claim and offset were given.

      Crow 8f Loan, for appellant.
    I. The court erred in admitting the' award. There was a variance between it and the petition. There was no authority given to the arbitrators to find' any indebtedness either way. It does.not possess the requisites of an award in that it does not purport to determine finally any matters in difference between the parties. (1 Bac. Abr. 225, 222; 15 Mo. 540; 10 Mo. 308.) It is not based upon any submission and was made without authority. The instruction asked should have been given. The motion to strike out should have been overruled. The instructions given should have been refused. One case is stated in the petition and a different one is assumed in the instruction. (18 Mo. 403.)
    Woodson, for respondent.
    I. The petition is good. The award is sufficient evidence of the value of the work done. The law of the case was fairly put to the jury. The counter-claim of defendant was considered and allowed. The defendant was not aggrieved. (7 Mo. 497; 15 Mo. 400 ; 15 Mo. 143; 1 Mo. 163, 313; 588, 746 ; 3 Mo. 472 ; 8 Mo. 702, 224 ; 9 Mo. 303; 10 62.) The parts of the answer were properly stricken-out. The defendant therein attempted to put in issue the very matters settled by the award. The award was final.
   Scott, Judge,

delivered the opinion of tbe court.

It must be obvious that the action of the inferior courts on motions to strike out parts of the pleadings in a cause can not be reviewed in this court, unless such motions designate the portions to be stricken out in some other mode than by reference to the pages and lines of the original record, as these never correspond with the pages and lines of the transcript filed here, so that it is impossible to ascertain the parts of the pleadings to which the motion refers. Motions to strike out parts of the pleadings should contain the parts sought to be stricken out, or they should be designated in a manner that this court can readily ascertain them. The record not showing what parts of the answer were stricken out, we can not review the action of the court below on that subject.

We can see no error in the court in permitting the award to be read in evidence. There was no variance between the award and the petition. The arbitrators were authorized to fix the prices of the work done by the plaintiff for the defendant. This was done, and their adding that the sum found was for the plaintiff against the defendant was mere surplus-age, and did not affect any right of the defendant. No one can understand that the award prevents any defence on his part consistent with the fact that the work was worth the sum at whioli it was appraised. The defendant was not precluded by the award from proving any set-off or counterclaim he might have had against the plaintiff. Indeed he was allowed, and did do this. The award did not pretend to go farther than the arbitrators were authorized. It was perfectly consistent with the idea that there was nothing due to the plaintiff from the defendant. ■ It is competent to parties to make a single matter the subject of an arbitration. It is not essential to constitute an arbitration that it should adjust all matters in difference between ,the parties. A single matter is frequently a subject of reference, in order that the award may enable the parties themselves to adjust all their dealings.

For reasons given, there was no error in refusing the defendant’s first instruction. The third instruction asked by the defendant was properly refused because the plaintiff’s replication showed that there was no foundation for it. -

The other judges concurring, the judgment is affirmed.


author: NaptoN, Judge,

text:
    Gerding, Respondent, v. Walter, Appellant.
    1. The law does not presume from the simple fact of one man’s handing over money to another, that the transaction is prima facie a loan.
    2. If the material fact upon which a cause of action is based he put in issue by the answer of the defendant, the plaintiff must adduce evidence in its support.

      Appeal from, Buchanan Court of Common Pleas.

    This was an action to recover the sum of one thousand dollars alleged to have been loaned to the defendant at divers times in the month, of August, 1858. The defendant in his answer proceeded as follows: “ Defendant denies, except as hereinafter stated, that he is justly indebted in the sum of one thousand dollars for money lent by plaintiff to defendant at various times. Defendant denies, except as hereinafter stated, that he is indebted to plaintiff for one hundred and twenty-five dollars on the 12th of August, 1858, or for one hundred and twenty-five dollars on the 13th of August, 1858, &c., [specifying the sums charged in the petition.] Defendant denies that each and every one of said sums of money is now due and owing plaintiff, or that any of the same is now due and owing plaintiff. Defendant denies that plaintiff is entitled to any interest for money loaned, or to any judgment against him. Defendant states the fact to be that he married the daughter of plaintiff; that about August last (1858) he commenced investing a large sum of money in a brewery building in St. Joseph; that plaintiff, having sold his house and lot in Illinois, moved with his family to St. Joseph sometime in August last; that he (plaintiff) offered to let defendant have a thousand dollars to assist defendant in erecting said brewery, provided defendant in consideration would board plaintiff and his family and pay their expenses and furnish them with a home as long as they desired; that defendant assented to this proposition of plaintiff, and plaintiff advanced defendant at different times one thousand dollars, and with his family came and lived with defendant, who furnished them pvery thing suitable and necessary;” that he advanced various sums to plaintiff; that after staying with defendant about six weeks plaintiff suddenly declared that he was dissatisfied with the country and moved back to Illinois;. that plaintiff has ever been and still is able and willing to perform his whole contract; that in consequence of getting said money on said terms plaintiff greatly extended his plans in building and extending said brewery improvements, and “ if he (plaintiff) is allowed to violate his contract and recover back said .money in this suit, plaintiff is damaged thereby in the sum-of three hundred dollars, which said damages he is entitled to recoup. Defendant, however, avers and claims that plaintiff is not entitled to recover any judgment in this case,” &c.
    At the trial there was no evidence adduced. The court, among other instructions, gave the following: “ 1. The defendant in his answer admits his indebtedness to plaintiff to be one thousand dollars, and the jury will so find in their verdict.”

      Bassett 8f Loan, for appellant.
    I. The first instruction given should have been refused.The answer denies in the most direct and emphatic terms any loan. (See Westlake v. Moore, 19 Mo. 556.)

      Tories Sf Tories, for respondent.
    I. The defendant’s answer admits that the sum of one thousand dollars was advanced to him at various times, but allege that it was advanced under a special contract which defendant must prove or plaintiff ought to recover. The answer does not deny the items as stated. It simply denies generally that defendant was indebted at the time of filing the answer. Each allegation should be specifically denied. (Engle v. Bates, 19 Mo. 543.) The case of Westlake v. Moore is not in point.
   NaptoN, Judge,

delivered the opinion of the court.

The instructions given by the court in this case seem to assume that the natural or legal presumption arising from the simple fact of one man handing over money to another is, prima facie, a loan. We do not know of any authority or principle to justify this conclusion. It would seem to be more reasonable to infer, from this simple transaction unexplained, that the money is to pay a debt, or is intended as a gift. Where a loan is made, some proof of the transaction is usually preserved.

The plaintiff here averred that the defendant was indebted to him in the sum of one thousand dollars for money lent. The defendant answers that he is not indebted to the plaintiff in the sum of one thousand dollars for money lent. The plaintiff avers a loan. The defendant denies it. It is true that the defendant subsequently proceeds to state a particular history of the facts, according to his understanding of them, which constitute the basis of the plaintiff’s supposed claim and of the defendant’s supposed defence; but this statement is merely an extended and detailed denial of the alleged loan. If the facts are stated correctly by the defendant, it is clear that no money was loaned to him by the plaintiff, but that the thousand dollars was given to him upon sufficient consideration, and that the plaintiff has no claim to demand it back.

The answer was treated by the circuit court as an admission of a loan and an attempt to set up a counter-claim; and therefore, in the absence of any proof on either side, the court directed the jury to find for the plaintiff the sum claimed with interest. We do not so understand the pleadings. We understand the answer to be a direct and emphatic denial of any loan of one thousand dollars, or any other sum; and of course, upon the conceded rules of pleading, the burden of proof is on the plaintiff to make out at least a prima facie case.

Judgment reversed and cause remanded.


author: Soott, Judge,

text:
    Atteberry, Defendant in Error, v. Powell, Plaintiff in Error.
    1. Though an answer to a petition may contain different defences separately stated, they must be consistent defences; in an action for slanderous words, the defendant can not be allowed in the same answer to deny and also to justify the speaking of the words charged. (It. C. 1855, p. 1233, § 14. J
    2. An answer in an action of slander justifying the speaking must confess the speaking; an answer merely stating that thé words spoken are true is not sufficient as a justification; it should state the 'facts constituting the crime or offence imputed so that an issue of either law or fact may be found.
    3. Where the allegations or denials of a pleading are so indefinite or uncertain that the precise nature of the charge or denial is not apparent, or where they fail in any other respect to conform to. the requirements of the law, the court may require the pleading to be made definite and certain, and otherwise to conform to the law, by amendment. (R. 0. 1855, p. 1236, § 31.)
    4. Where the petition, in an action of slander for charging the plaintiff with perjury, is defective, in that it does not state how the alleged perjury was committed, the defect will be aided by a plea of justification setting forth the circumstances under which the alleged false oath was taken.
    5. In an action for speaking slanderous words, it is calculated to mislead the jury to refer it to them to determine whether the defendant “in substance” spoke or published the words charged, without explaining the meaning that the law would attach to that expression in connection with the proof of the slander charged.

      Error to Dallas Circuit Court.

    This was an action. for the speaking of slanderous words. The petition contains two counts. In the first count it was charged that the defendant on, &c., at, &c., “ in a certain conversation with one Absalom Austin, and in the presence and hearing of divers other-good citizens of, &c., in a certain conversation with said Absalom Austin of and concerning the said plaintiff George W. Atteberry, and of and concerning the character of said plaintiff for honesty and integrity, and of and concerning an affidavit and oath which plaintiff before that time had made and given before the county court of said county at its May term, 1857, in the matter of William F. Tinsley’s right to enter or purchase certain public land, to-wit, forty acres of land in said county, maliciously spoke the following malicious, false and slanderous words of and concerning the character of plaintiff, and of and concerning the aforesaid oath, to-wit, they,’ meaning plaintiff Atteberry and Tinsley, ‘ have got my board down; they have worked me out of a piece of land that I can prove that I claimed by twenty persons; I don’t know that I can prove any claim on that particular piece that Tinsley got without getting some person to swear as they did for Tinsley;’ thereupon being asked who swore for him, meaning Tinsley, he (defendant) said ‘ Attebei'ry,’ meaning the oath which plaintiff had as aforesaid made of and concerning the said entry or purchase aforesaid, and meaning thereby then and there, and was so understood by him the said Austin and those present, that plaintiff had sworn a lie, and had been guilty of the crime of perjury in the aforesaid oath concerning said entry or right of purchase proved up as aforesaid by him, the said plaintiff; by reason of which,” &c.

    In the second count it was charged that the defendant “ on,” &c., in the presence and hearing of Wesley Austin, and divers other citizens of Dallas county, in a conversation with said Wesley Austin of and concerning plaintiff, and of and concerning the oath aforesaid, which he, the said plaintiff, had made before the county court of said county of Dallas (said oath being made and taken by said court under the authority of law in deciding upon the right of said Tins-ley to enter or purchase forty acres of land in said county), did speak, utter and publish the following false and slander-otis words: they have taken a piece of my land by false swearinghe (defendant) thereby meaning that plaintiff, in making said oath, had sworn false, and had been guilty of the crime of perjury; and he then, said defendant, was thereby then and there so understood to mean that plaintiff had been guilty of the crime of perjury by the said Wesley Austin and those persons present; wherefore and by reason of which,” &c.
    A demurrer to this petition having been overruled, the defendant filed the following answer: “ Defendant comes and for answer to the first count in said petition says, he did not speak or publish the supposed false and slanderous words of or concerning plaintiff or either of them, as charged in said first count of said petition; nor did he mean by any thing he said of or concerning plaintiff that he had been guilty of the crime of perjury. Defendant further answers and says that he did not speak or publish the false and slanderous words of and concerning the plaintiff in the second count of said petition specified as therein plaintiff has alleged, or any or either of them; nor did he mean by any thing he did say that plaintiff had been guilty of perjury.
    “ Defendant further answers and says plaintiff ought not to have or maintain said action against him, because he says that at the time in said petition mentioned when the plaintiff made the supposed oath, affidavit before said county court of Dallas county, he, the said plaintiff, then and there made oath and stated before said county court that no other person except said Tinsley had any claim on said forty acres of land mentioned in said petition, whereas, in truth and in fact, defendant then and long before that time had a claim on said forty acres of land, whereof plaintiff was then well aware, which is the same affidavit and oath mentioned in both counts of said petition, and not other or different. And defendant says that plaintiff did swear and testify in said affidavit and oath falsely, knowingly, wilfully and corruptly, in manner aforesaid; and so defendant says it is true, as stated in the first count of said petition, that plaintiff had sworn falsely in manner aforesaid; and that it is true, as stated in said second count in said petition, that plaintiff had sworn falsely in manner aforesaid ; all of which he is ready to verify.”
    It is deemed unnecessary to set forth the facts in evidence.

      Hendrick, Johnson Sf Ballou, for plaintiff in error.
    I. The petition is insufficient. The demurrer should have been sustained. It does not show that the oath in respect to which the words were spoken was taken in a case wherein perjury could be committed. The petition does not show that the oath was taken before a competent tribunal. The words spoken are not actionable. (See Sess. Acts, 1855, p. 479.) The evidence in respect to swamp lands was required to be taken before the clerk in vacation, and not before the court. If taken before the court it could not be perjury. The county court was not the tribunal to hear the evidence of Tinsley’s right to enter the land. (See Yaughn v. Havens, 8 Johns. 109; 2 Johns. 10.) The evidence offered to sustain the plea of justification ought to have been admitted. The instructions asked by defendant should have been given. The instructions given wore erroneous.

      Freeman, for defendant in error.
    I. The demurrer was properly overruled. The court committed no error in giving or refusing instructions. The county court had power under the act of 1855 to hear testimony on applications to enter swamp lands.
   Soott, Judge,

delivered the opinion of the court.

The object of the present practice act was to introduce truth and simplicity in pleadings. The act requires that the pleadings should be verified by affidavit. This requirement must necessarily exclude inconsistent answers. As an answer in justification of a charge for slander must admit the speaking of the slanderous words, the defendant can not deny and justify the speaking of words at the same time. To be satisfied of this, it would seem only to be necessary to place the two answers in juxtaposition. Under the old system the speaking of the slanderous words might be denied in one plea and justified in another, but that can not now be permitted. What were consistent or inconsistent pleas under the old practice, where the pleadings were not required to be verified, is a very different question from what are consistent or inconsistent answers under the practice now' prevailing, where all -the pleadings are required to be sworn to. The statute allows different consistent defences to be separately stated in the same answer. (R. C. 1855, art. 6, § 14.) In New York, whence our practice act comes, there is a diversity of opinion in the courts on this question. The weight of reason is with those who hold that the answers are inconsistent; and it is observable that those who maintain that the two answers may be made, are silent as to the requirement of a verification of the pleadings. The general issue is now abolished, and a defendant under it can not show that the words were not maliciously spoken, or did not amount to slander. But where the words are of such a character, he may in such a case state the circumstances under which they -were spoken in order to show the want of malice, and in that way may defend the action. Mitigating circumstances serve only to reduce the damages ; they can not therefore constitute a defence to the action ; and whenever they are set up it must be in connection with an answer to the action, and the pleader should state that they are in mitigation of damages, as otherwise, not amounting to an answer', the court would be warranted in striking them out, as not knowing for what purpose they were intended.

The parties can not expect to obtain an advantage by evasive pleading. If the pleading is insufficient, it ought to be disposed of before going into trial. A defendant can not put in an answer insufficient as a justification, and expect to treat it as such when it suits his purpose, and then be permitted to deny it when it is his interest to do so. An answer merely stating that the words spoken are true is insufficient as a justification; it should state the facts which go to constitute the crime or offence '¡imputed, so that an issue of either law or fact may be framed. An answer justifying the speaking of the words must confess the speaking. (Yoor-hies’ Prac. 206.) Indeed the failure or neglect of the inferior courts to comply with the plain requirements of the statute renders it almost impossible to do any thing with the practice act now in force. Each party moves on confident of success, and it is not until his case is lost that he awakes to the great irregularities of the pleadings. The law requires that, when the allegations or denials of a pleading are so indefinite or uncertain that the precise nature of the charge or denial is not apparent, and when they fail in any other respect to conform to the requirements of the law, the court may require the pleading to be made certain and definite and otherwise to conform to the law by amendment. (R. C. 1855, p. 12, 36, art. 6, § 31.)

This case seems to fall within the principle of those in which it has been held that in an action for slander, where the declaration averred that the plaintiff was foresworn without showing how, it was determined that this defect was aided by a plea of justification which alleged that the plaintiff had taken a false oath at the sessions. (Drake v. Cordery, Cro. Cas. 288; Chitty’s Plead. 671.) This principle, it seems, is still applicable under the present practice. (Ayres v. Covill, 18 Barb. 260.)

Errors were committed pending the trial, which will make it necessary to reverse this judgment. In whatever light the pleadings are viewed the difficulty presents itself. If the case is considered as standing on the answer in justification, then all evidence offered in proof of the answer was excluded by the court, an error that can not be surmounted. We may not understand the bill of exceptions, for, without any hesitancy, it may be pronounced one of the worst prepared papers that was ever presented; and if those obtaining judgments will suffer the judge to sign such papers, they must take the consequences. The bill of exceptions, as it appears to us, does furnish evidence conducing to show the truth of the slander. If we read it correctly, it seems that the land entered by Tinsley did not corner with the lands he held by preemption; that the one was three quarters of a mile from the other. "Why did the court set aside the order allowing Tinsley to enter the land ? There was evidence that Atte-berry knew that another claimed the land.

In the case of Berry v. Dryden, 7 Mo. 324, the court said “ the slander proved must substantially correspond with that charged in the declaration.” In the first instruction given by the court at the instance of the plaintiff, the jury is told that “ if the defendant spoke and published the slanderous words mentioned in the first count-in the petition, or spoke or published the same in substance, intending thereby,” &c. These words “ in substance” were objectionable by themselves without further explanation. The language this or any other court may use in expressing its opinions is not always appropriate in an instruction to the jury. Opinions are usually addressed to and intended for the scientific. If the court saw proper to use the words “ substantially” or “ in substance” in speaking of the proof of the slander charged, it should have gone further, and stated, as was done in Berry v. Dryden, what idea the law attached to those words in connection with that subject.- There is no phrase more likely to mislead a jury than to tell them that if the slander-' ous words are “ in substance” proved-the action is sustained. The ordinary acceptation of the words is widely variant from the sense in which they are used by the courts in speaking of the proof of the slanderous words charged in a petition.

Reversed and remanded.


author: EwiNG, Judge,

text:
    Burrow, Respondent, v. Pound et al., Appellants.
    1. A. agreed with B. that if the latter would proceed with his team to a place at a distance he would furnish him with 3,000 pounds of “ back loading” from that place; B. did go with his team to the designated place and A. furnished him with only a portion of the freight agreed upon. Held, that B. was entitled to recover for the whole amount agreed upon.

      Appeal from Neioton Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Edwards S¡- Eiving, for appellants.
    I. The court erred in refusing the instructions asked.
   EwiNG, Judge,

delivered the opinion of the court.

This was a suit before a justice of the peace for money alleged to be due on a contract by which the plaintiff agreed with defendants to transport from Jefferson city to Granby three thousand pounds of goods, at two dollars per hundred.

The statement filed with the justice alleges that defendants agreed with plaintiff that, if he would proceed to Jefferson city with his team, defendants would furnish him with three thousand pounds of back loading from there to Granby, in Newton county, at the rate of two dollars per hundred pounds; that in pursuance of said agreement plaintiff went to Jefferson and demanded from Cloney, Crawford & Co., the agents of defendants, the goods, but that defendants failed to comply with their agreement, whereby they were damaged sixty dollars. Plaintiff had judgment for the sum claimed, from which defendants appealed to the circuit court, where, on a trial by a jury, plaintiff had judgment again for fifty-six dollars.

• There was but one witness examined, who proved the agreement as set forth in the statement filed, and that the plaintiff proceeded to Jefferson with his wagon and team, and obtained only eighteen hundred pounds of goods of defendants — that being all they had at that place; that plaintiff got two hundred pounds additional, the goods of another firm at Granby, and returned with a load of two instead of three thousand pounds. The defendants asked two instructions, the first of which is in effect that the plaintiff ought not to recover for the one thousand pounds which he failed to get; and the other is “ that unless the jury believe from the evidence that plaintiff tried to get other hauling and failed, they ought to find for the defendants.” The refusal of these instructions is assigned for error.

Both instructions are obviously erroneous. The agreement was to transport a given amount of freight at a stipulated price per hundred. The quantity was as distinctly contracted for as the price for which it was to be hauled, and the assurance of obtaining that much was the main inducement, as may be supposed, to the undertaking of transporting goods such a distance. The time and expense of plaintiff were the same whether he got half or the whole of the goods stipulated for ; and as he was ready to perform, and did perform, the contract on his part, so far as it was possible, he is entitled to full freight.

The second instruction was properly refused because it declares the plaintiff can not recover even pro rata freight, unless he made efforts to obtain other goods and failed; that he is entitled to no compensation for the goods he actually hauled for the defendants by reason of failing to get others to make up the quantity which the defendants bound themselves to furnish.

The judgment is affirmed;

the other judges concurring.


text:
    Massey, Plaintiff in Error, v. Tingle, Defendant in Error.
    1. When the statute of limitations begins to run against an action to adjust and. settle the accounts of a partnership must depend upon the circumstances of the case; there is no rule of law that it begins to run from the date of the dissolution of the partnership.
    2. It is the province of the jury to pass' upon questions of fact, not matters - of law.

      Error to Jasper Circuit Court.

    This was an action to adjust and settle the accounts of a partnership that had formerly existed between plaintiff and defendant. This suit was commenced April 4,1853. It alleged a partnership between plaintiff commencing in 1837 and ending by a dissolution by mutual consent on tbe 5th of March, 1841. Plaintiff alleges that he furnished more capital than defendant; that the excess was in the nature of a loan to defendant, to be accounted for on final settlement; that there has been no final settlement; that the debts of the partnership have all been paid. Plaintiff claims to have an execution against the partners; for the half of which with the excess of capital he prays judgment. The defendant in his answer puts in issue the allegations of the petition with respect to the advancements of capital by plaintiff; alleges that he, defendant, furnished capital not credited to him .in plaintiff’s petition; that for several years after the dissolution plaintiff received rent of various buildings belonging to the firm. He also set up the statute of limitations.
    At the trial the following issue was made under the direction of the court and ordered to be submitted to the jury: “ Did plaintiff’s right of action accrue within five years, next before the commencement of this suit ?” To the ordering of this issue to be tried by the jury plaintiff excepted. Certain testimony offered by plaintiff being ruled out, he took a non-suit, with leave, &c.
    -, for plaintiff in error.

    I. The court erred in submitting a question of law to the jury. The issue upon the statute of limitations, as made up, submits a question of law, not one of fact. The court erred in excluding testimony.
   Scott, Judge,

delivered the opinion of the court.

This judgment must be reversed because the court below referred as an issue of fact to the jury a matter of law. We know no principle which declares that the statute of limitations begins to run against an action to adjust and settle partnership accounts from the time of its dissolution. When the account, or an item in the account, is barred, must be determined from the facts in relation to it. The application of the statute must be governed by circumstances. Cases may be stated in which an account may be barred in five years ; others may be stated in which an account would not be barred in a much longer time. When the facts of this case are all ascertained, it will be the province of the court to declare whether the action for an adjustment of the concerns of this firm is barred.. There is nothing in the record as it now stands which enables this court to pronounce that this action is barred.

Judge Napton concurring, the judgment is reversed and the cause remanded ; -Ewing, Judge, not sitting, having been of counsel.


text:
    Riley, Respondent, v. Minor, Appellant.
    1. The authority of an agent to make an executory contract for the sale of land need not he in writing.

      Appeal from Buchanan Cowl of Common Pleas.

    This was an action for the possession of land. The defendant claims to be the owner of the land, and justly entitled to the possession thereof by virtue of a purchase from plaintiff through one Cleek, his agent. It is alleged that plaintiff gave Cleek a power of attorney, which it was erroneously supposed gave him authority to convey land, it being the verbal understanding of the parties that he was authorized to sell and convey plaintiff’s lands.

      Hall, Tories Sp Tories, for appellant.
    I. The court erred in excluding the bond given by Cleek, the agent of plaintiff. Plaintiff gave Cleek parol authority to sell the land in controversy. The defendant paid part of the purchase money, and made valuable improvements. It would be a fraud upon his rights to turn him out.

      Wooclson 8p Loan, for respondent.
    I. The court properly excluded the bond of Cleek.
   Ewing, Judge,

delivered the opinion of the court.

The question presented by the bill of exceptions is the refusal of the court to permit the instrument of writing executed by Cleek to be read in evidence. It is not pretended by the appellant’s counsel that the power of attorney from the respondent to Jacob Cleek read in evidence contains any semblance of authority to sell real estate; and unless the evidence of the witness Cleek discloses a verbal authority for this purpose, the instrument was properly excluded. It is well settled that to make a valid executory contract for the sale of lands it is not necessary that the agent’s authority should be in writing; and when the question arises as to the authority of the person claiming to be an agent to sign the contract, it is sufficient to establish the fact by parol that he was thereto lawfully authorized.

Turning to the testimony of Cleek, we look in vain for any evidence of an agency to sell the land of the respondent, or to make or sign any contract respecting it. On the contrary, it is very clear, not only from the statements of the respondent as detailed by the witness, but from all the circumstances in evidence, that no authority or agency could have been contemplated except that conferred by the power of attorney given to Cleek. It would seem strange that Riley, the respondent, should have executed a formal power of attorney for the purpose of collecting debts or settling some accounts, and have given at the same time a mere verbal power to sell his lands. But this is put at rest by the witness himself, who states that the writing contained all the power or authority he had for selling the land; and that when he made the sale to the appellant he exhibited the power of attorney to him, and told him that was his authority to sell. It seems that both the appellant and Cleek acted on the power of attorney, and that it was looked to alone at the time of the negotiation and sale as the authority to make it. It is evident that Cleek did not assume to act upon a parol authority in the transaction, and that he did not deem himself clothed with authority for that purpose, except by virtue of the powc^of attorney. So also Minor seems to have viewed the matter, until he discovered that it^was' insufficient for that object.

The judgment is affirmed;

the other judges concurring.


text:
    Blanchard et al., Respondents, v. Baker et al., Appellants.
    1. A. conveyed certain real estate to B. in trust to secure a debt due C. Af-terwards D. obtained a judgment against A. and the interest of A. in said real estate was levied on and sold under the judgment, and D. became the purchaser. Previous to this purchase the trust debt had been satisfied. The trustee (B.) afterwards sold said real estate under the deed of trust and C. became the purchaser. Held, that D. was entitled to a decree of title against C.
    2. Under executions issued upon judgments of the Weston court of common pleas, the marshal of the city of Weston may levy upon and sell real estate. He may make such sale in the city of Weston, where the court is held. (Sess. Acts, 1851, p. 203.)

      Appeal from Buchanan Circuit Cowrt.

    The following is the finding of the facts by the court: “ Now at this day this cause came on to be heard by the court on the pleadings, exhibits and proofs, and the court, being sufficiently advised, doth find that the debt due by the McDonalds and Adams to Robert Campbell, one of the defendants, to secure which the deed of trust of Thomas D. S. McDonald and wife to Elijah Cody, Alfred H. Foster and John T. Baker prayed to be set aside was executed, was satisfied by Adams before the sale of propetty in said deed mentioned was made by the trustees, at which sale E. W. Railey became the purchaser, and not complying with the sale, Robert Campbell, the defendant, was substituted to the right of said Railey under such purchase. The court further finds that the plaintiffs, after said debt was satisfied, became the purchasers at marshal’s sale under execution from the Weston court of common pleas, and have obtained a deed to said property from the marshal of said court.- It is therefore adjudged, oi’dered and decreed that the deed of trust of said McDonald and wife to said Cody and others as trustees be cancelled and set aside, and that the deeds made by said trustees to E. W: Railey and by said Railey to Campbell be also set aside, and that the title to the lots in said deed of trust mentioned, to-wit, lot No. 13 and part of lot No. 10, in block No. 52, in the town of Weston, county of-, state of Missouri, be vested in the plaintiffs; to have and to hold the same against the said defendants herein ; and that the plaintiffs recover possession of said property, and their costs in this suit expended, for which possession and costs the plaintiffs may have execution,” &c.

      Hall Sf Loan, for appellants.
    I. The finding of the facts by the court is defective and insufficient. (17 Mo. 558; 21 Mo. 140; 19 Mo. 123.) There are only three facts found — that the debt of $3,510 dire to Campbell was satisfied prior to the sale by the trustees under the deed of trust — that the plaintiffs, after the debt was satisfied, became the purchasers of the property at marshal’s sale under execution from the Weston court of common pleas — that they have obtained a deed therefor from the marshal of said court. These are not the facts put in issue by the pleadings. The petition substantially charges that plaintiffs acquired the title of the McDonalds to the land mentioned in the petition. This fact the court failed to find; it is therefore to be considered as negatived. (Bates v. Bower, 17 Mo. 553.) There is also a failure to find the facts, the judgments, levies and sale, &c., upon which this ultimate fact rests. It says the debt was “ satisfied.” The question of payment is not touched. The facts showing a satisfaction are not found. (19 Mo. 123; 21 Mo. 140; 18 Mo. 110.) The court failed to declare the law upon the facts found. (17 Mo. 533 ; 15 Mo. 402 ; 22 Mo. 577 ; 28 Mo. 486.) Upon the facts found the judgment should have been for the defendants. The deed of the marshal was void. There was no law authorizing him to make such deed. The sale was made in tbe town of Weston, when by law it should have been made at the court-house at the county seat of Platte county. It was not made whilst the circuit court was in session as required by law. (18 Mo. 580.) The court erred in admitting the deed in evidence. (Sess. Acts, 1851, p. 203.)

      jRyland 8f Son and Burnes, for respondents.
    I. The finding supports the judgment. (17 Mo. 158, 550; 19 Mo. 325.) If the court failed to find a material fact, the defendants should have moved for a review. The court found the main fact, the payment to Campbell of the debt due him. The marshal’s deed was properly received. (4 Monr. 319 ; 2 Monr. 202; 3 Mon. 339.) The Weston court has jurisdiction coextensive in all civil cases with the circuit court within the territory over which its jurisdiction extends.
   Ewing, Judge,

delivered the opinion of the court.

This’action was commenced under the practice act of 1849, and was tried by the court. The facts were found by the court, and judgment entered upon the finding; but there was no motion for a review in the court below. The only question therefore for our consideration is whether the finding supports the judgment.

The respondents, plaintiffs below, were judgment creditors of D. & T. D. S. McDonald, and in 1854 obtained judgments for various large sums, in the Weston common pleas court, against said McDonalds ; upon which executions were issued and levied on certain real estate, town lots in Weston, as their property, which was sold by the marshal of the common pleas court. At the sale the respondents became the purchasers for the sum of forty dollars. It further appears from the petition, that, previously to the rendition of said judgments, to-wit, in June, 1853, the said T. D. S. McDonald conveyed to two of the defendants, Cody, Foster, and another since deceased, the same lots which were sold to the plaintiffs at the marshal’s sale, in trust to secure Robert Campbell, another defendant, who was also a party, the payment of a note given by the firm of McDonald & Adams for $3,510.09, dated June 15, 1853, due at six months. It is also alleged that said sum of money and interest has been fully paid, and that said property is not released, but continued apparently in force, and so insisted to be by Campbell and McDonald for the purpose of protecting said real estate from McDonald’s creditors; that defendant Baker is in possession of said real estate as Campbell’s tenant. It is also alleged that the trustees in said deed of trust, at .Campbell’s request, in September, 1854, offered for sale said real estate, and it was soid to one E. W. Railey for $1,900 ; that he refused to take the same on account of some objection to the title, and, by some means unknown to plaintiffs, Campbell was substituted as the purchaser, and a deed made to him by the trustees; that nothing was paid by Campbell for the property, the amount being allowed as a credit on said note, which Campbell knew had been fully paid, and that said trustees had no right to sell. The petition asks that the trustees be compelled to release said real estate from the operation of said deed of trust; that the sale be set aside, and the conveyance made in pursuance thereof be cancelled, and that the title to the real estate be vested in plaintiffs and for possession. Campbell and Cody answer, denying that the balance of said note of McDonald and Adams to Campbell (which was for $3,510) was ever paid otherwise than by the sale of the trust property to the defendant; aver that there was a balance of $1,885.59, for the payment of which the trust property was sold; and that one E. W. Railey bought the same for $1,900, and, not being able to pay that amount, he sold by quit-claim deed to defendant Campbell; that there is yet a balance due defendant, the $1,900 being insufficient, after deducting expenses, to pay all of said balances. Defendant is willing to convey said property to any of McDonald’s creditors who will pay the balance due by said note, interest and costs.

The court found that the debt of McDonald and Adams to Campbell, one of the defendants, which the deed of trust of T. D, S. McDonald and wife to Cody, Foster and Baker prayed to be set aside was executed [to secure], was satisfied by Adams before the sale of the property in said deed mentioned was made by the trustees; at which sale E. W. Railey became the purchaser, and, not complying with the sale, Robert Campbell, the defendant, was substituted to the right of said Railey; that the plaintiffs, after said debt was satisfied, became the purchasers at marshal’s sale under execution from the Weston court of common pleas, and have obtained a deed to said property from the marshal of said court.

The judgment is that the deed of trust of McDonald and wife to Cody and others as trustees be cancelled and set aside, and that the deeds made by said trustees to E. W. Railey and by said Railey to Campbell be also set aside, and that the title to the lots in said deed of trust mentioned be vested in the plaintiffs; for possession, &c.

As already observed, we have nothing to do with the inquiry, whether all the facts in issue are found by the court, or whether those found were warranted by the evidence— the only question before us being whether the judgment is supported by the finding. The material fact in the case evidently is, whether, at the' time of the sale of the property in controversy by the trustees, Campbell had a subsisting lien upon it by virtue of the deed of trust; or, in other words, whether before that time his debt had been paid or satisfied. It is true, the allegation of the petition is that the debt was fully paid, which is denied by the answer; and the court finds that the debt was satisfied prior to the sale under the deed of trust. The legal effect of a satisfaction was the same as a payment; it was a discharge of the property from the operation of the deed of trust; and, if so, a sale of the property under the execution and a conveyance passed to the respondents the title of McDonald, if the marshal had any authority to sell real estate and execute deeds therefor. That there was a failure to find specifically the facts of a judgment and levy can not now be inquired into — there having been no motion for a review — except as they may be involved in determining whether the conclusion of the court from the facts found was warranted notwithstanding this omission.

Among the facts found is that the plaintiffs became the purchasers at the marshal’s sale, and obtained a deed from the marshal for the property sold. Now, if the marshal was authorized to make a deed to real estate sold by him under execution, we are of opinion the facts omitted in the finding were not necessary to the judgment pronounced by the court.

Referring to the act to establish the Weston court of common Pleas, (Sess. Acts, 1851, p. 203,) we find ample authority given to the marshal for thát purpose. In regard to the jurisdiction of the court, the tenth section of the act provides as follows: “ First, concurrent original jurisdiction with the circuit court of Platte county in all civil actions where the defendant resides and the process is served within the corporate limits of said city; and like concurrent jurisdiction with the said circuit court in all civil cases where the defendant does not reside in said county of Platte and the process is served within the corporate limits of the city; like concurrent jurisdiction with said circuit court in all suits against boats and vessels moored opposite said city, in the Missouri river. Concurrent superintending control with circuit court over justices of the peace within the city in civil cases, and appellate jurisdiction from their judgments in similar cases,” &c.; and it has also jurisdiction under certain restrictions where the defendants reside anywhere in the county. “ The practice, powers and proceedings shall be the same in all respects as is or may be provided by law for the government of the circuit court except as herein specially provided.” (Sec. 15.) The twenty-second section enacts that the judge of said court shall hold three regular terms of his court in each year, the time of which shall be fixed by and determined by the judge; and he may appoint and hold special terms of his court in the same manner as is or may be required by law in the circuit court; and the next section declares ¿hat executions issued from said court on judgments therein rendered shall be made returnable at the succeeding term thereafter unless the plaintiff, or the person to whose use the suit may be brought, shall otherwise direct; then it shall be made returnable at the succeeding term thereafter, at the option of the plaintiff or person having control of said judgment. The only other provision of the act, that need be referred to, is that making it the duty of the marshal of the city of Weston, or his deputy, to attend said court, and execute all process issued by the court, judge or clerk thereof. These several provisions taken together clearly enough show the authority of the marshal to sell real estate at the place of holding said court and to execute deeds to the purchaser. This, we think, is further evident from a moment’s reflection, especially on the twenty-second and twenty-seventh sections. By the general law in force when this act was passed, there were two terms of the circuit court held in each year. The act in question (22d section) provides for three terms of the common pleas court, and allows the judge to fix the times of holding them; which of course he may do without any reference to the terms of the circuit court. Another provision (27th section) says, that executions shall be returnable at the next succeeding term after they are issued, unless the plaintiff shall otherwise direct. How, then, are these provisions to have their proper effect unless the marshal, whose duty it is to execute all process, has authority to sell real estate under execution ?

The judgment is affirmed;

the other judges concurring.