text:
    Arnold et al., Respondents, v. Klepper et al., Appellants.
    1. Section 25 of the act concerning mills and mill-dams (R. C. 184S, p. 743) was designed to afford a remedy only in cases in which a mill, or other machinery, or a dam erected in pursuance of said act, was injured by .the subsequent erection of a dam or other obstruction, also erected under the provisions of said act.
    2. Where it appears that the obstruction complained of was not erected under the provisions of said act concerning mills and mill-dams, the party aggrieved may seek redress by means of a suit for damages, or he may invoke the equitable interference of the courts by injunction 5 but before he can become entitled to the extraordinary relief afforded by an injunction, he must establish his right to redress by a recovery in an action at law.

      Appeal from Greene Circuit Court.

    Plaintiffs in their petition allege in substanee that they were the owners of and in possession of a certain saw-mill; that said mill was erected under and by virtue of an order of tbe Circuit Court of the county of Greene ; that since the erection of their mill by plaintiffs, defendants, unmindful of the statute in such case made and provided, and without authority, have commenced the erection of a dam a short distance below said mill, and so near as to cause the water to be obstructed and to flow hack on said mill, and thereby so to obstruct said mill and the machinery thereof as to render them of no value to plaintiffs, &c. Plaintiffs prayed that the dam of defendants be abated by the sheriff as a nuisance, and that defendants he prevented from proceeding to complete the erection of said dam so commenced by them until a hearing of the petition.
    A temporary enjoining order was granted in accordance with the prayer of the petition.
    The defendants moved the court to dissolve this injunction. Plaintiffs were permitted to amend their petition, on the hearing of this motion, by abandoning all claim for damages, and by inserting a prayer to the court “ to enjoin and restrain the defendants from building their mill- dam any higher than it now is.” The court found that “ if said defendants’ mill-dam were completed and finished, great injury would be done to plaintiffs’ machinery.” The court, by its final decree, enjoined and restrained defendants “from completing the said mill-dam, or so'raise the same above a point, the level of which would be less than twelve inches below the bottom of said plaintiffs’ mill wheel.”

      Gardenhire, for appellants.
    I. The petition does not state facts sufficient to constitute a cause of action at most for any thing more than the damages, and they were disclaimed by amended petition. This objection is never waived. Welton & Edwards v. Martin, 7 Mo. 307, is a case precisely in point, and decisive of this. The sole object in that case seems to have been an injunction ; such object alone is still more apparent in this, for respondents, when they got this injunction, amended their petition disclaiming all damage. The petition shows no special facts which entitle the respondents to this extraordinary remedy. (Ranfcen v. Char-less, 19 Mo. 490 ; 2 Story’s Eq, § 959, 6.)
    II. The finding of the court did not warrant a perpetual injunction. It does not show the erection or raising of any dam, stoppage or .obstruction across any stream ; or any nuisance to any mill, machinery or dam authorized by the order of any court; or which mill was above or below; or on what stream; or which was erected first ; or that there were any mills at all ; but only “ that if the said defendants’ mill-dam was completed and finished great injury would be done to plaintiffs5 machinery.” It is not even found that defendants were about to complete their dam. (R. C. 1845, p. 747, § 25.)

      F. P. Wright, for respondent.
    I. The cause was tried by the court, and if the defendants had denied the correctness of the finding of any of the facts proved, he should have applied to the court for a review, and specified the fact which he supposed the court had erroneously found ; or if they desired a review of any matter of law, they should have made a case and brought the alleged error to the attention of the court. This they failed to do. (Bates v. Bower, 17 Mo. 550 ; Practice Act, art. 5, § 8 ; Reymond & Kendall v. Edgar & Walsh, 19 Mo. 32.)
    II. The finding of the court was sufficient to sustain the judgment.
    III. The motion in arrest was properly overruled.
    IY. The court had jurisdiction and authority as a court of chancery to make the decree. (R. C. 1845, tit. Mill and Mill-dams, § 25, 26 ; 2 Waterman’s Eden on Injunctions, 259, 261, 265; The Mohawk & Hudson Railroad Co. v. Archer et al. 6 Paige’s Ch. 83 ; City of Georgetown v. The Alexandria Canal Co. 12 Pet. 91 ; Coming et al. v. Lewern, 6 Johns. Ch. 439; 2 Story’s Eq. Juris. § 924; The Attorney General v. Michel, 16 Vesey, 338 ; Crowder v. Tukler, 19 Vesey, 616.) Section 25 of the Revised Code is a n'ew provision and was not in the statute of 1835.
   Scott, Judge,

delivered the opinion of the court.

The objection, that the complainants are not the proprietors of the land on which they have built their mill, has no force in it. They claim by purchase, and show their deed from the former reputed owner, who, it is alleged, is under some disability which renders her conveyance inoperative. These defendants can not be permitted to come in and force the complainants to litigate their title with them, when the supposed owner of the title is passive and makes no claim. Tbe complainants had such confidence in their title as induced them to erect the machinery of whose injury they complain. As they have expended money on the faith of their title, making costly improvements, and as there is no adverse claimant asserting his rights, it is nothing but reasonable that they should be protected from the acts of others injurious to their interests. The law requires that he who asks leave to build a dam under its provisions should be the proprietor of-the land on which it is to be built. But that requirement does not authorize persons to mouse about for flaws in a man’s title and compel him to litigate with them his rights. The law never contemplates that the courts, on every application for a writ of ad quod dam-num, should try an ejectment, and that, too, in the absence of one of the parties. If the person desirous to build the mill has a title on which he is willing to risk his money, and there is no adverse claimant asserting his right to the mill seat, the law would seem to be satisfied.

This case does not come within the 25th section of the act concerning mills. The defendants had never obtained any leave to erect a dam on the mill stream. Then, according to the 26th section of the said act, their dam, stoppages and obstructions, not being made according to law, were public nuisances, and might be dealt with accordingly. The 25th section was designed to reach those cases in which a mill and dam, erected in pursuance to law, was injured by a damjsubsequently built, likewise under the provisions of the statute. They are not made nuisances, and the law, only in the event of their operating to the injury of others, authorizes a court of chan-chery to have them abated. Such being the state of the law, under the circumstances of this case we are not disposed to interfere. We are not affected by the argument that, if the law would allow an injunction in cases of an erection authorized by law, a multo fortiori it would in case of one not authorized. The difference is, the law makes one a public nuisance, and it may be destroyed, while the other is not so.' The plaintiffs have ample remedies without the extraordinary one by injunction. They may sue for damages, and if they are successful may then have an injunction, if it is necessary. They may set in motion a criminal proceeding to abate this nuisance.

It is strange that the idea of making an issue — a single issue, and not a great many, as they sometimes do for no other purpose than to create confusion — did not occur to the parties. A great number of witnesses, much greater than testified for the plaintiff, asserted'that the dam of the defendants caused no injury whatever to the plaintiffs’ mill. The principal witness for the plaintiffs, and one mostly confided in, it wo.uld seem, as an expert, testified that there was a current of water below Arnold’s (plaintiffs’) mill for two hundred yards. The backwater from Klepper & Gfalbreath’s (defendants’) mill did not come nearer than two hundred yards of plaintiffs’ mill.

A court of chancery should be well satisfied of the existence of a nuisance before it interferes by injunction. The old law, in case of injuries like the present, never permitted an interference until after the establishment of the plaintiff's’ right by a recovery of damages in a court of law. An innocent party may be ruined by the exercise of such a power. He may have vested all his estate in an enterprise which he was persuaded would not injure another. The public' interest is promoted by competition among the owners of useful machinery. The law encourages such competition, and a captiousness, dictated by a fear of it, is entitled to no countenance in the courts of justice. A monopolizing spirit may see wrongs not perceptible to the disinterested.

There is no warrant in the statute for an injunction in this case. Although a private injury resulting from a public nuisance may be checked by an injunction, yet it is not done until the party complaining has established his right to redress by an action at law. The 25th section of the act concerning mills and mill- dams being out of this case, the principle asserted in the case of Welton & Edwards v. Martin, 7 Mo. 307, is applicable. The judgment will be reversed and the bill dismissed; the other judges concurring.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Dillon, Defendant in Error, v. Wilson, Plaintiff in Error.
    1. An offer to pay money by way of compromise is no evidence of indebtedness on the part of him making the offer.
    2. Where husband and wife, after their marriage, abandon the possession of premises occupied by the wife previous to her marriage free of rent, and upon which she had a growing crop at the time of her marriage, and, after such abandonment of the premises and crop, the husband converts to his own use the crop, he will not thereby be rendered liable for the rent of the premises.

      Error to Osage Circuit Court.

    This action was originally commenced before a justice of the peace. Judgment having been rendered for plaintiff, an appeal was taken to the Circuit Court. It appeared in evidence at the trial that the wife of defendant, Wilson, previous to her marriage, was in possession of, and cultivated a piece of ground belonging to Dillon; that she paid no rent to said Dillon for said premises ; that she sowed a field of wheat upon said premises, and intermarried with defendant (Wilson) before said wheat was ready for harvesting. Wilson cut and appropriated the wheat when ripe. It also appeared that while Wilson was cutting the wheat, he told Dillon that he would pay him a dollar per acre to settle the matter. It does not appear that this offer was accepted. The court, on its own motion, gave the following instruction: ‘ ‘ Though Dillon may have contracted with the defendant’s wife, before her marriage with the defendant, that she should occupy the premises free from rent upon the condition that she should remain on the premises and take care of them, yet if the defendant married Mrs, Page, and they abandoned the care of the place, and her husband took and converted the growing crop to his own use, then they will find for the plaintiff (Dillon) the value of the rent of the ground cultivated, allowing the defendant a reasonable deduction for the time the premises may have been taken care of by his wife.” Defendant duly excepted. Other instructions were given and refused. It is unnecessary to set them forth. The jury found for plaintiff.

      J. W. Morrow, for plaintiff in error.
    Parsons, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

If the plaintiff relied for a recovery on a contract made by the wife of the defendant while she was single, then the wife was a necessary party to the suit. The offer of the defendant to pay rent was not binding on him, unless it was accepted by the plaintiff; and an offer to pay money by way of compromise is no evidence of indebtedness on the part of him making the offer. If, after her marriage, Mrs. Wilson and her husband abandoned the premises and the crop also, then the defendant Wilson had no right afterwards to take the crop ; and if he did, he is liable for the value of it in damages. Mrs. Wilson’s marriage was no forfeiture of her lease or her crop ; and if afterwards she went and lived with her husband, that would not deprive her of her right to the crop. Such a construction of the contract would be unreasonable. The premises could have been protected without an actual residence upon them ; and though there is so much stress laid in the instructions upon her leaving the land, there is not a particle of evidence that the plaintiff sustained any the least damage by reason of her absence, unless he was injured by hi's own horses destroying her little crop. If a landlord should say to a widow, “ go upon my land, rent free, and take care of it,” and she should do so, and sow a crop, and when it was ripe, or nearly so, she should think proper to many and go and live with her husband, would any thing be harder than to construe this a forfeiture of her rights under the permission to live upon the land ? The instruction given by the court, at its own instance, was erroneous, inasmuch as it directed the jury that Wilson was liable for the rent if he converted the wheat to his own use. According to the contract with Mrs. Wilson no rent was to be paid. If Wilson and bis wife bad abandoned tbe crop, and given it up to Dillon, and Wilson afterwards' took it, and converted it to Inis own use, be was liable in damages for tbe worth of the crop ; but on no ground would be thereby make himself liable for tbe rent of tbe premises.

Tbe instructions assume that Mrs. Wilson may have left Dillon’s land before harvest. The only evidence in tbe record in relation to that matter is, that defendant and Mrs. Wilson, after their marriage, left tbe plaintiff’s place some time after harvest. This is found at tbe close of Nauman’s testimony.

WTe have not deemed it necessary to review tbe many instructions that are found in tbe record, being of opinion that what has been said will be sufficient to determine this controversy in a future trial.

Tbe judgment will be reversed, and tbe cause remanded, with tbe concurrence of tbe other judges.


text:
    Ray, Respondent, v. Davison, Appellant.
    1. Where the taker up of a mare as a stray acquires no right by such talcing, he having no right under the stray law to take such mare up as a stray, a demand is not necessary to enable the owner to sue for her conversion.

      •Appeal from, Dallas Circuit Court.

      Gardenhire, for appellant.
    I. The evidence showed, and the instruction given by tbe court assumed, that tbe mare and colt bad been tahen up as strays. Tbe taker up then became, in tbe first instance, lawfully possessed of tbe goods. (1 Cbitty’s Plead. 157.) Tbe original taking was not only lawful, but praiseworthy. (4 Pick. 249.) Non-compliance with tbe statute only deprived tbe taker up of tbe right to defend tbe action. (Id.) A lawful taking does not become unlawful ah initio by tbe mere determination of tbe right to detain. (15 Johns. 401.)

      Wright, for respondent.
   Scott, Judge,

delivered tbe opinion of the court.

After tbe defendant had abandoned all claim of right to tbe mare and colt in controversy derived from tbe stray law, we do not see on what ground be can insist that a demand should have been made. It is not shown that tbe first legal step was ever adopted towards tailing up tbe mare ; she being unbroke could not be taken up at tbe season of tbe year she was posted. So there is no pretence that she was ever lawfully in tbe possession of tbe taker up ; there can then be no room for tbe application of tbe principle that a mere nonfeasance will not make one guilty of an abuse of authority in law a trespasser ab initio. It does not appear that there ever was an authority for taking up the mare. Tbe other judges concurring, tbe judgment will be affirmed.


author: Scott, Judge,-

text:
    McNeeley, Respondent, v. Hunton, Appellant.
    1. Held, in a suit brought by A. against B. for wrongfully seizing and selling under an execution against C. certain horses alleged to have belonged to plaintiff as having been purchased for her by G. as her agent, that declarations made by C. in making the purchases to the effect that he was purchasing the horses for himself were admissible in evidence, together with evidence of the insolvency of C. at the time of said purchases, to show that the alleged agency was but a cloak to cover the fraud of C.

      Appeal from Benton Circuit Court.

    Wright, for respondent.
   Scott, Judge,-

delivered tbe opinion of tbe court.

Tbe witness Whitlow was properly directed not to answer tbe question put to him respecting what be bad beard Burnes say, as it does not appear that any ground bad been laid for such an inquiry in tbe previous examination of Burnes, who should first Have been asked the question whether he did not make the declaration that he was purchasing horses for the government agent. We do not see on what ground the court refused to let the witness Dozier answer the question whether one of the six horses was not purchased by Burnes on a credit, who gave his note for it, with Dozier as security. Surely it could not have been on the ground that it did not appear that the horse, about which the inquiry was made, was onp of the three claimed by the plaintiff. As the plaintiff maintained on the one hand that Burnes was her agent, and as on the other this was denied, and it was insisted that she was a mere screen to hide the fraud of Burnes, she could not assume that the property was hers, and that therefore the declarations of others should not affect her rights. This would be taking the matter in controversy for granted. The purchase of the whole number of horses, so far as the question of fraud was concerned, must be regarded as a single transaction, and whether Burnes was acting for the plaintiff in good faith, or was using her name in making his purchases as a cloak to his fraud, should have been submitted to the jury with all attending circumstances and declarations calculated to throw any light upon the questions. The declarations of Burnes, while acting as agent, were, as part of the res gestx, evidence against the plaintiff. In ferretting out fraud, great captiousness against evidence, on the ground of its irrelevancy merely, is a suspicious circumstance, and induces the thought that such a spirit is manifested from a fear that the evidence may elicit the truth. If a suitor’s conduct has been fair, he will not dread an investigation of it. The pretence of saving the time of the court is but a weak apology for such a course, as it is well known that when this captiousness is displayed more time is consumed in arguing questions of evidence than would be spent in hearing the matter alleged to be irrelevancy. If the evidence is merely irrelevant, it can not possibly do any harm to the party against whom it is offered. In relation to this subject, we refer to what was said in the case of Lane v. Kingsbury, 11 Mo. 410.

We see no ground for refusing evidence as to tbe insolvency of Burnes at tbe time be was employed in purchasing tbe borses. Sucb evidence furnished proof of a motive for fraudulent conduct on bis part, and, with other circumstances, would have its weight. Tbe defendant could surely have shown collusion between tbe plaintiff and Burnes, and that tbe money used by him was bis own. Those points were not raised, but they are now noticed, because, for other reasons, tbe judgment will be reversed and tbe cause remanded for a new trial.

For reasons before given, the evidence of tbe witness McDonald should have been admitted. It relates to what was said and done by Burnes during bis agency for the purchase of the horses. It was primary evidence, and there was no necessity for laying any foundation for its admission.

From what has been said, it will be seen that the testimony of other witnesses was properly excluded, because no previous foundation had been laid for contradicting the witness Burnes. After Burnes had ceased to act for the plaintiff, his declarations and conduct could not affect her rights.

Judge Ryland concurring,

reversed and remanded.


text:
    Alsup, Plaintiff in Error, v. Ross & Mitchell, Defendants in Error.
    1. A gui tam action, under section 8 of the act regulating marriages, for joining in marriage a minor without the consent of his parent or guardian, will only lie against him who celebrates the marriage.

      Error to Polk Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Wright, for defendant in error.
    I. The act of performing the marriage ceremony, or joining in marriage, is the offence on which the penalty of the statute is inflicted. (Hill v. Williams, 14 Serg. & R. 287.) The statute inflicts the penalty upon the person' alone who joins the minor in marriage. It can not, by any implication, be extended to those who may confederate and advise the act.
    II. Even if Mitchell is in any way liable, he can not be sued jointly with the other defendant. (1 Chitty’s PI. 98 ; Yan Santvord’s PL 111; Barnard v. Gosttling, 4 Bos. & Pul. 245.)
    III. Plaintiff has no cause of action whatever against Mitchell. The statute gives hime none, and by the common law no action will lie in behalf of a parent for procuring the marriage of an infant child without the parent’s consent. (Jones & Gully v. Tevis, 4 Littell, 25.)
   Scott, Judge,

delivered the opinion of the court.

This was a qiri tam action, instituted by Alsup, the plaintiff, to recover the penalty given by the statute regulating marriages for joining in the bonds of matrimony minors without the consent of their parents or guardians. The defendant Mitchell Was charged with having confederated with Ross, the minister, and with having, by his direction and advice, procured the celebration of the marriage by the said Ross. There was a demurrer to the petition, which was sustained as to Mitchell, and overruled as to Ross. The plaintiff thereupon took a non-suit, and after an unsuccessful motion to set it aside, sued out this writ of error.

Without entering into the question as to the regularity of the proceeding, it is obvious that on the merits this non-suit must be confirmed. Penal statutes must be construed strictly. The penalty was only given against him who celebrates the marriage. There is nothing said about aiders or advisers. The statute alone giving a foundation for the proceeding, it can not be made to affect any but those comprehended within its terms.

The other judges concurring, the judgment will be affirmed.


text:
    Peery, Defendant in Error, v. Moore, Plaintiff in Error.
    1. A. instituted a suit against B. to recover money paid by him as a security for said B. upon a promissory note executed by them jointly. A. after-wards instituted a suit against C., charging in his petition that at the time of the execution of said promissory note C. was a secret partner of B., and praying that the two suits might be consolidated. C. answered denying the alleged partnership. The court consolidated the two suits against the objection of C. Held, 1st, that this consolidation was irregular; 2d, that depositions taken in the suit against B. alone, and of the taking of which C. had no notice, were inadmissible in evidence against C.

      Error to Kansas City Court of Common Pisas.

    The facts sufficiently appear in the opinion of the court.

      Hovey, for plaintiff in error.
    I. The court below had no power to consolidate the two actions, because the issues tendered to the two defendants were-entirely different. (R. C. 1845, p. 825, § 21.)
    II. The permission of the court below to Peery to read in-evidence the depositions of Stephenson, Boothe and Wheeler, was erroneous, because no notice was given to Moore, and they were not taken in any cause in which Moore was at the time a. party. (R. C. 1845, p. 417, § 6; p. 419, § 20.)
    IN. The instructions given to the jury, at the instance of Peery, on the subject of partnership, were not the law of this case. They are predicated upon the assumption that Moore’s being a partner of Randolph at the date of the note was all that was necessary to make Moore liable to Peery; and this assumption is false. (Story on Partnership, § 134, 136 ; Ash-bury v. Flesher, 11 Mo. 610.)
    IY. The doctrine of substituting the security for the payee of a note only applies where the payee has by law a lien (as vendor’s lien), or has taken a lien (as a mortgage or judgment or pledge) to secure the payment as against the principal.. (Crump, v. McMurtry, 8 Mo. 408.)
    Y. The evidence carries the supposed partnership back only to tbe date of the note, and not to the time of the purchase of the lumber. The law presumes a continuance of a partnership, but not its commencement. Ross, the payee, might have had his action against both Randolph and Moore for the value of lumber, if the partnership existed at the time of the purchase, but not upon the note. The security’s right of action arises out of the note alone, and not out of the consideration of it. (Story on Part. § 84, 136; Denton et al. y. Bodie, 5 Camp. 493 ; Saville v. Robertson, 4 T. R. 720; R. C. 1845, tit. Security, § 5 & 6.)
    YI. The court ought to have given the instructions asked for by Moore.
    No appearance for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

It would have been desirable had this court had some intimation of the rule or statute which in the judgment of the court below warranted this singular proceeding. We have never heard that because a plaintiff did not know, when he began his suit, that another ought to have been made co-defendant in an action for money paid, that afterwards, when he ascertained the fact that -one was omitted who ought to have joined, that therefore, on filing a petition against him, he could have the two suits consolidated in one action. It was once thought that in such cases the original suit would have been dismissed, and a new action instituted against both the defendants, as it was not conceived that a plaintiff, by his allegation of the want of knowledge of a fact, could claim an advantage otherwise denied to him. As it is, the plaintiff, by the course in which he was indulged, has been led into errors which make it a matter of justice to the defendant that his judgment should be reversed; so much better is it to follow the old beaten tract than the new modern courses in which alone some men imagine that justice can be found.

The bill of exceptions states that the plaintiff offered to read in evidence depositions which had been taken in the case against Randolph alone, and of the taking of which the defendant Moore had no notice. To this defendant Moore excepted. The main point on the trial was whether Moore was a partner of Randolph. As that was the issue, we see no ground on which depositions, taken in a cause to which Moore was no party and of which he had no notice, could be read against him. In such cases, the rule as to the admissions of one partner being evidence against another, or notice to one being notice to another, has no application; for the very thing on trial is whether they were partners ; and until that was settled, the rule has no force as regards them. The instruction given, to the effect that the jury would exclude from their consideration any thing that Randolph may have said about Moore being a partner of his unless Moore was present at the time, did not remove the difficulty. The depositions read against Moore not only contained the declarations of Randolph, but they also contained the evidence of witnesses who testified to the conduct of Moore, from which the jury might draw the inference that he was a partner of Randolph.

The form of the security from which the liability of the defendant is alleged to have arisen indicated that the plaintiff was security for Randolph only. If Peery was bound for Randolph alone, he had no recourse against Moore. Prima facie the debt was due by Randolph ; and, in order to make Moore liable, it was necessary to show that it was a debt due by the firm. The instructions therefore asked in relation to this subject should have been given.

Although in form, the petition having the promissory note by which the plaintiff was bound annexed to it, wears the appearance of a suit of which the note was the foundation; yet, when the substance of the thing is regarded, it sufficiently appears that the action is really for money paid as surety, of which the production of the note and proof of its payment were evidence enough as against Randolph. We are however of the opinion that there is not weight enough in this objection to induce the interference of this court.

Although we regard this proceeding as having been very irregularly begun, we do not know but that the cause of justice will be most subserved and the interest of the defendant as well secured in this action, as by requiring the plaintiff to begin again; especially as this seems at last to be nothing but a proceeding against Moore, he being the only responsible party. We deem it for the interest of Moore that a new action should not be required. Reversed and remanded ; the other judges concurring.


text:
    Temple et al., Appellants, v. Price et al., Respondents.
    1. Where minors institute suit by their father as natural guardian, and seek thereby to have a new trustee appointed in the place of one to whom certain slaves had been devised in trust for such minors on the ground of the failure to act; held, although it did not appear from the petition that the father had given bond as guardian, that a demurrer on the ground, that no guardian had been appointed according to law was improperly sustained.
    2. Nor would such a petition he multifarious for the reason that, in addition to the appointment of a new trustee, it also prayed that certain of the parties defendant, who were charged therein with having wrongfully appropriated the hire and services of such slaves, might he ordered to account to the new trustee when appointed.

      Appeal from Chariton Circuit Court.

    Demurrer, to a petition. Plaintiffs, minor children of one Tabitha A. Temple, deceased, and grand-children of one Angelina Price, instituted suit by their father and natural guardian; alleging that one Elizabeth Burton had devised certain slaves to one Newton Burton in trust for the children of the said Angelina Price, of whom the mother of plaintiffs was one; that said Newton Burton failed to take upon himself the discharge of the trust; that one Alexander Price, one of the defendants, by the sufferance of the said N. Burton, the trustee, and of the executor of the will of Elizabeth Burton, took said slaves into his possession ; and that he and his co-defendants or some of them appropriated tbeir Eire and services. The plaintiffs pray that a new trustee be appointed to take charge of the said slaves ; and that defendants be required to pay over to such trustee, when appointed, the value of the hire and services of said slaves received by them, &c.
    The trustee, Newton, and others, the children and grandchildren of Angelina Price, were made- parties. Defendants demurred to this petition, and assigned for causes of demurrer, 1st, that the plaintiffs had no legal capacity to sue, and have had no guardian appointed according to law; 2d, that the petition does not state facts sufficient to constitute a cause of action ; and the same is multifarious in this that the plaintiffs ask the appointment of a trustee and an account, when the parties are liable to the trustee only when appointed, and can not be required to account in this action. This demurrer was sustained.
    Turner, for appellants.
   Scott, Judge,

delivered the opinion of the court.

This suit was begun under the revised code of 1845. The Srst section of the act concerning guardians in that code makes the father the natural guardian of his child. The seventh section of the same act empowers all guardians and curators to prosecute and defend for the minors in all matters committed to the care of such guardians and curators respectively, without further admittance in the several courts of the state. Natural guardians have the care and custody of the education, estates and persons of their wards, they giving bond and accounting as other guardians. (Sec. 1.) The seventh section of the 2d article of the Practice Act of 1845 made the guardian or next friend of any infant who commenced or prosecuted a suit responsible for the costs thereof. Now conceding that the natural guardian should give bond before taking possession of his ward’s estate not derived from himself, yet there is nothing showing that such bond had not been given. Moreover, the object of the suit is not to obtain possession by a natural guardian of bis ward’s estate. So far from it,, it seeks the appointment of a trustee who might manage it. But under our liberal practice in respect to parties, it does seem that it would have better comported with justice that the guardian should have been permitted to file a bond as guardian after the objection was taken. The defendants would have been in no Worse condition than before. They already had the personal liability of the guardian, and had the guardian executed a bond for the management of his ward’s estate, they would then have had nothing more.

We see no force in the objection of multifariousness. If a trustee is appointed, the present constructive trustee must account to him or some other party for the rents and profits he has received from the estate. We see no useful or just end to be obtained by another suit after this is ended. If the present acting trustee has abused his trust, why should he not be required to hand over the trust fund, together with its rents and profits, to those who may be entitled to them in one suit ?

There is nothing that we can see in the objection that there is a misjoinder of parties: all the parties to the suit have a direct interest in it. The other judges concurring, the judgment is reversed, and the cause remanded.


text:
    Gwinn, Defendant in Error, v. Rooker, Plaintiff in Error.
    1. A bond executed by a. partner, though executed in the name of the partnership and for a partnership debt, will not bind his co-partner. Such co-partner may however assent to the execution of such bond previously to its execution, or may ratify and adopt it afterwards ; such assent or ratification and adoption may be by parol.

      Error to Howard Circuit Court.

    Allen Gwinn seeks in the present proceeding to recover of Rooker the amount paid by him as security upon certain sealed notes, executed in the name of the firm of H. Gwinn & Co.3 •which firm was composed of said Rooker and H. Gwinn. These sealed notes or bonds were executed by H. Gwinn, in the name of the firm, for a partnership debt. A. Gwinn signed these bonds as security. There was evidence tending to show the assent of Rooker to their execution, and of his ratification and adoption of the same. The facts sufficiently appear in the opinion of the court.

      Davits, for plaintiff in error.
    I. The bonds were no evidence from which the jury could find that Allen Gwinn was the security of Rooker. (See 1 American Lea. Cas. 447; 2 B. Mon. 244 ; Fletcher v. Van-zant, 1 Mo. 139.)
    II. The record shows clearly that the partnership was dissolved two years before the execution of the bonds offered in evidence. (Sto. on Part. § 280.) After a dissolution, one partner can not even renew an outstanding note of the firm in the name of the firm. (Lany v. Story, 10 Mo. 636.}

      Gardenhire, for defendant in error.
    I. The general principle that a partner can not enter into agreements under seal, has received this important qualification, that where a seal is not essential to the nature of the contract, and will not change the liability, the addition of a seal will not vitiate it; and where an act is done which one partner may do without deed, it is not less effectual that it is done by deed. (1 Amer. Lead. Cases, 297, note ; 4 McCord, 519, 537 ; 5 Watts, 22 ; 4 Mason, 207, 231; 6 Watt & Serg. 301, 311; 5 Hill’s Rep. 163 ; 1 Mete. 515 ; 7 id. 244, 248 ; 8 Leigh, 416 ; 6 Grattan, 197 ; 2 Stewart, 280.)
    II. A partner may bind his co-partner by an agreement under seal in the name of the firm, provided the copartner assent to the contract previously to its execution, or afterwards ratifies and adopts it, and this assent and adoption may be by parol, and may he implied from the conduct of the other partner.
   Scott, Judge,

delivered the opinion of tbe court.

The pleadings in this case do not raise the question how far a court of equity will go in giving relief in the case of a bond executed by one partner in the name of the firm for a partnership debt, on the ground that both parties were under a mistake as to the legal effect of the execution of the bond and its operation to discharge all but the individual partner who sealed it. The cases of Sale v. Dishman’s Exec’r, 3 Leigh, 544, and McNaughton v. Partridge, 11 Ohio, 226, maintain that courts of equity will grant relief under such circumstances. Somewhat analagous is the case of Hunt v. Rousmanier, 8 Wheat. 211, where an instrument was reformed, so as to carry into effect the intention of the parties, on the ground of a “mistake in fact arising from the ignorance of the draftsman.”

Under our law, where seals are made by a mere scrawl, the rule that a partner can not bind the firm by a sealed instrument, executed in the partnership name, is productive of no advantage, and frequently leads to great injustice. In practice, it always operates against the intent of the parties, and the misstep is scarcely ever discovered until the instrument is about to be put in suit. The inconvenience has been felt, and has produced a relaxation of the rigor of the ancient rule, which maintained that one partner could not bind the other by deed unless specially authorized thereto by instrument under seal, and that a subsequent acknowledgment would not cure the defect. It being now settled, says a modern author, after a thorough investigation of the cases, that a partner may bind his co-partner by an agreement under seal in the name of the firm, provided the copartner assents to the contract previously to its execution, or afterwards ratifies and adopts; and this assent or adoption may be by parol, and that it need not be express or special, but may be implied from the conduct of the other partner, or the course of dealing by the firm. (Amer. Lead. Cas. vol. 1, p. 297.) Judge Story, speaking on the same subject, says, that the American courts have in this view strongly inclined to repudiate it in all cases where an express or implied authority or confirmation could be justly established, not under seal, whether it be verbal or in writing, or circumstantial.” (Story on Part. § 121.) The ease of Bentzen v. Zierlein, 4 Mo. 417, decides nothing more than that a bond, executed by one member of a firm, is the deed of him only who executes it. Indeed it has been held in some of the states that, as a bond is not an extinguishment of a simple contract, unless, where it is so intended, a sealed instrument made to secure a simple contract debt by one partner in the partnership name, will not discharge the firm, because it is apparent on the face of the instrument that it was not intended to accept the liability of a single partner in lieu of the firm, and consequently that the firm may be sued upon the original simple contract. (1 B. Mon. 199; 12 N. H. 235; Amer. Lead. Cases, 1 vol. 298.) This doctrine, however, is supposed to be founded on a misconception of the extent to which intention can affect the principle of extinguishment. (Ib.)

The court properly refused the second instruction ashed by the plaintiff, Rooker, in relation to the acts which caused a dissolution of the partnership. Story, in his work on Partnership, § 825, says, “ notwithstanding the dissolution of the partnership, there still remain certain rights, duties, powers, authorities and relations between them, which the law recognizes and supports because they are or may be indispensable to the complete arrangement and final settlement of the affairs of the partnership ; and therefore, in a qualified and limited sense, the partnership may be said, for those purposes, to continue between the parties until such arrangement and settlement take place.” If, notwithstanding the dissolution of the partnership, some of the duties and powers of a partner remain to him as such in winding up its concerns, it was competent for Rooker to recognize and adopt the acts of Harrison Gwinn, performed in the settlement of the business of the firm. This seems to be the view taken by the court, resting our opinion on the first instruction given for the defendant, A. Gwinn. It was not controverted that, if the partnership liability was unextinguished, and that if it was satisfied by A. Gwinn, he not being reimbursed, but that he was entitled to recover the amount paid by him from the plaintiff, Rooker. It is not material as to whom the agent of Fassett looked in taking security for his debt; but the question is, to whom did A. Gwinn look in becoming security ? If he looked to the firm for indemnity, and the act of H. Gwinn was ratified or adopted by his partner Rooker, then it is clear that A. Gwinn should be indemnified by the firm.

If the case had rested on the part of A. Gwinn, the defendant, after the first instruction given at his instance, as the fact of the ratification of H. Gwinn’s act by Rooker was fairly put to the jury, there would have been no difficulty in affirming the judgment. There is ample authority to warrant it when placed on that ground. But we are at a loss to conceive the ground on which the 4th instruction given for A. Gwinn is based. That instruction directs the jury that, “ although the partners may have sold out their goods at Blufi'port, and moved away before the execution of the notes under seal, signed by Allen Gwinn, yet if there was, in fact, no dissolution of the partnership, Harrison Gwinn had the right to bind his partner by the execution of the notes under seal signed by Allen Gwinn for the purpose of securing a debt due from the partnership.” This instruction could not have been intended to convey the idea that a member of a firm, by a bond executed in the name of the firm, can bind the firm by such an instrument. If it did, it was clearly against the law. Gould it have been founded in the conception that the fact of the ratification of H. Gwinn’s act by Rooker was so well established that the evidence of it might be taken from the jury, and it assumed as true by the court? If so, it was manifestly erroneous. Or was it conceived in accordance with the view of some courts, to which allusion has been made, that, as it was apparent on the face of the bonds that it was intended that the partnership should still be bound, the act of one partner did not extinguish the liability of the firm, and consequently the partners might have been sued on their original simple contract ? IE such was the object of the instruction, it has no support in the doctrine to which reference has been made. That doctrine stands on the principle that one partner, by a sealed instrument, can not bind the firm ; that it is only the deed of him who executes it, though signed in the partnership name. Whether the party would have any remedy, according to the view just above stated, or whether, by proper averments in his answer, he would be entitled to any equitable relief, as some have thought, as is shown above, we will not now determine, as we do not deem it necessary, >and as but two judges sit in this cause.

It can not have escaped observation that the present ease is unlike that of Settle & Bacon v. Davidson, 7 Mo. 604. If the bonds purporting to have been executed by Harrison Gwinn & Co. had been signed by Harrison Gwinn in his own name alone, the cases would have been parallel. We consider the cases to be different, and as standing on different considerations.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded ;

Judge Leonard not sitting.


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    Clardy et al., Appellants, v. Richardson, Respondent.
    1. Where a deed executed and attested in the slate of Tennessee, the grantor and the attesting witnesses residing there at the same time, is offered in evidence in the courts of this state, its execution may be proved by proof of the handwriting of the grantor. It will he presumed that the subscribing witnesses are out of the jurisdiction of the courts of this 3late.
    2. A copy of the record in tire state of Tennessee of such deed is inadmissible in evidence in the courts of this state, unless it appear that such copies are evidence by the laws of Tennessee.

      Jippeal from Hickory Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      F. P. Wright, for appellants.
    I. The court erred in rejecting evidence of the handwriting and signature of the grantor in the deed of gift. (Yalentine v. Piper, 22 Pick. 85 ; Morgan v. Curteneas, 4 McLean, 366 ; Clark y. Sanderson, 3 Binn. 192 ; Woodman y. Segar, 25 Maine, 90.)
    II. A copy properly authenticated of a deed which has been admitted to record in another state is admissible in evidence in this state. (Strode y. Churchill, 2 Litt. 75; Rochester v. Toler, 4 Bibb, 106; Maria (of color) v. Atterberry, 9 Mo. 372 ; 5 Martin, 775.)

      Gardenhire, for respondent. .
    I. Evidence of Clardy’s signature was not admissible. Proper diligence in searching for the subscribing witnesses was not shown. The degree required is the same as that required in the search for a lost paper. (1 Greenl. Ev. § 576.) ' The parol evidence offered only showed, what the instrument showed on its face, that Clardy once resided in Tennessee. That was not the question ; the residence of the subscribing witnesses was what the court wanted to know. Appellant proposed to show this simply by showing where the grantor resided prior to the execution of the instrument.
    II. The certificates on the instrument did not make it admissible. It was not shown that the laws of Tennessee required it to be recorded. It may be presumed that the common law rules are the same there as here, but not that the statute laws are "the same.
    HI. The same objections apply to the copy of the original.
   Scott, Judge,

delivered the opinion of the court.

We are of the opinion that the court improperly rejected the evidence offered in relation to the execution of the deed by the plaintiffs. In the case of Yalentine v. Piper, 22 Pick. 85, it was held that, where the attesting witnesses to a deed are not within the jurisdiction of the court, it may be proved by evidence of the handwriting of the party by whom it was executed. In the case of Clarke v. Courtney, 5 Pet. 319, the Supreme Court of tbe United States says, that if, upon due search and inquiry, no one can be found who can prove the handwriting of the subscribing witness to a deed, no doubt resort may then be had to proof of. the handwriting of the party who executed the instrument. The evidence was amply sufficient to show that the deed in question was executed in the state of Tennessee, and that the parties thereto were residents of that state. They were then beyond the jurisdiction of this court. The subscribing witnesses having been shown to be non-residents when they attested the execution of the deed, the court will presume that they remained non-residents in the absence of all proof to the contrary. Where then was the use of a search in order to find them ? Would the law require the plaintiffs to go into every County of the state and institute a diligent inquiry in order to ascertain whether they might not possibly have left Tennessee and removed to Missouri. In the case of Clarke v. Sander-son, 3 Binn. 192, it was held that search made for the proof of the handwriting of the witness, where she last resided, but without effect, is enough to allow proof of the handwriting of the party. As the subscribing witnesses were out of the jurisdiction of the court when they became such, and as the law presumed that they continued so, it would have been a vain.and nugatory thing to have made a search for them. Consequently the plaintiffs were entitled to resort to proof of the handwrit- . ing of the party executing the instrument. The regular mode of proving the execution of a writing, attested by a subscribing witness, is to produce the witness himself ; if he can not be had, then resort must be made to proof of his handwriting ; if that can not be obtained, then recourse must be had to proof of the handwriting of the maker or his acknowledgment — for the declarations of the maker may be resorted to, to prove the instrument, wherever you are permitted to resort to his handwriting.

It may be remarked, in relation to the. copy of the record of the deed made in Tennessee, that it does not appear from any thing before us that there was any law in Tennessee which made such copies evidence. After our statute of conveyances in relation to lands was passed, by which they were required to be recorded, it was held that copies of the record were not evidence of the execution of the deed without the warrant of the statute making them such. (Miller v. Wells, 5 Mo. 6.) The act of 27th March, 1804, passed by Congress in relation to this subject, and under which the copy must be read, (if it is read at all,) enacts that copies of such records shall only have the force and effect in a sister state that they had in the state where they were made. If, by our law, such copies of our records would not be evidence in our own courts, like records from our sister states of course could not be evidence here. The cases cited on this subject were in relation to records authenticated under the act of May, 1790, which were judicial records, which are unlike the records under the act of 1804.

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


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    Walker et al., Plaintiffs in Error, v. Likens et al., Defendants in Error.
    1. The fact that the damages caused by laying out a road under the act of March 3,1851, (Sess. Acts, 1851, p. 274,) may not have been assessed by the commissioners appointed under said act to locate said road, will not entitle the owner of the land through which said road passes to treat as trespassers those who, under the order of the county court and for the purpose of completing said road, enter and cut timber upon the line of the road as located.
    2. Quere, whether an appeal will lie from the proceedings of the county court under the said act.

      Error to Henry Circuit Court.

    This was an action to recover damages for an entry upon and the cutting of timber upon the land of plaintiffs. Defendants justify the entry and cutting of timber — Likens, one of defendants, alleging that he made the entry as a road overseer under the order of the county court of Henry county, — Freeman, the other defendant, setting forth in his answer that he was one of the hands allotted to open the road, and that in cutting the timber he acted under the direction of the overseer.
    The court instructed the jury as follows : “ 1. The court instructs the jury that if they believe from the evidence that the road in controversy ran over the land of plaintiffs in the petition mentioned, and that plaintiffs did not consent thereto, and that no assessment of damages was made by the commissioners to plaintiffs for the said road running over their land, said road is null and void as to plaintiffs ; and if the jury further believe that defendant Likens was a party and signed said original petition, ancf aided and assisted in procuring the location of said road over plaintiffs’ land, and knew that the damage had not been assessed, he can not justify under the order appointing him overseer, and the jury must find for the plaintiffs as to defendant Likens ; and if the jury further believe that defendant Freeman aided and assisted in the procuring the said road to be located on plaintiffs’ land otherwise than as a justice of the county court, the appointment of Likens as overseer, and his working as a hand on said road under said overseer, is no protection to him; if he knew that such damages had not been assessed, they must find for plaintiffs against Freeman. 2. If they further believe from the evidence that said road, as petitioned for, was to start at the north-west corner of Tutt’s farm and thence to run by W. Davis, thence by Gilliam’s farm, thence to Carpenter’s, and they further find that said road as located did not touch Gilliam’s farm, one of the intermediate points designated in said petition, and that defendants knew it, but said road missed the same one quarter or one half a mile; that not running by said intermediate point renders the whole of said road null and void, and they must find for plaintiff. If the jury shall believe from the evidence that defendant Likens, although acting as overseer, did himself, or others by his direction, cut the timber mentioned in said plaintiffs’ petition off the line of the road as marked out by the commissioners, they must find a verdict against defendant Likens. 8. If the jury shall believe from the evidence that defendant Freeman, acting under the direction of Likens as overseer, did himself, or that others by his assent or direction, cut the timber of plaintiffs, and that Freeman knew that he was cutting out the road off the line established by the commissioners, they must find a verdict against the defendant Freeman. 4. The court instructs the jury that the road should be cut on the line established by the commissioners, and that the blazed trees are to be the centre of the road, and that the road should be cut out not over thirty feet wide; and that if the road was not so cut out through plaintiffs’ timber, it is not on the line established by the commissioners.”
    The following instructions asked in behalf of defendants were also given to the jury : “5. If the jury should believe from the evidence that the defendants did not know that the commissioners had not run the road to the points mentioned in the petition therefor, and did not know that plaintiffs’ damages had not been assessed by the commissioners, they must find a verdict for defendants, unless they shall'believe that they cut or had cut timber on plaintiffs’ land outside of the line of said road as established by the commissioners. 6. If the jury shall believe from the evidence that the commissioners located said road from the starting point, and to the other points specified in the petition therefor, and took into consideration and did assess plaintiffs’ damages occasioned by the laying out said road through their land, and that Likens was appointed road overseer of road district No. 2 on said road, and he as such overseer, and Freeman as a hand under him, cut the timber on plaintiffs’ land, and did not cut any outside the line of said road, as located by the commissioners, they must find a verdict for the defendants. 7. If the jury believe from the evidence that the defendant Levi Likens was appointed by the county court of Henry county, overseer of road district No. 2, on the road leading from A. M. Tutt’s farm, in the direction of Wilson D. Carpenter, and that said Likens had notice of said appointment, and in pursu-anee of said order and notice did cut tbe timber mentioned in the petition, and cut no more than was necessary to open said-road thirty feet wide, and cut no timber outside of the line on which said road was laid out by the commissioners, they will find a verdict in favor of said defendant Levi Likens, unless they shall believe from the evidence that the defendant Likens knew that the commissioners had not run the road to the points mentioned in the petition therefor, and did not know that plaintiffs’ damages had not been assessed by the commissioners. 8. If the jury further believe that said defendant Freeman was a hand allotted by the county court of Henry county to assist in opening said road, and did assist as a hand said Likens, overseer as aforesaid, in cutting the timber mentioned in the petition, they will find in favor of defendant Freeman, unless they shall find that said Freeman himself, or others by his direction, cut timber outside of the road on the line on which the said road was laid out by the commissioners ; and unless they shall believe from the evidence that the defendant Freeman knew that the commissioners had not run the road to the points mentioned in the petition therefor, and did not know that plaintiffs’ damages had not been assessed by the commissioners.”
    The jury found a verdict for defendants.
    JVapton>, for plaintiffs in error.
    I. The principal question is, whether a knowledge on the part of defendants of the facts assumed, that the road did not, as laid off, touch the intermediate points specified in the petition for its establishment, and that no damage had been assessed to the plaintiffs by the commissioners, was necessary to make the defendants liable for the trespass. For the plaintiffs it is submitted that’this was immaterial, and therefore the first, and second instructions asked by them should have been given.
    II. The second instruction given for defendants leaves to the jury the construction of the commissioners’ report on the subject of damages. This was a matter for the court to determine, and the instruction was therefore erroneous.
    III. No notice was given to the plaintiffs, and no jury summoned to assess the damages, and tbe road was therefore a nullity as to them ; and whether the defendants knew this or not, does not affect their responsibility.
    IY. Under our statute, the commissioners are bound to allow a citizen, over whose land a road is run against his consent, the value of his land taken, and they can only consider the benefits he may derive from the road in determining the money estimate of the inconveniences to which it subjects him. Any other construction of the statute is at war with the state constitution.
    Y. It is however immaterial how the court may determine this last point, since the plain and obvious interpretation of the commissioners’ report is, that they did not investigate the subject of damages at all, and since no notice or summons was issued to the plaintiffs under the 13th section of the act of 1845, tit. Roads, &c., p. 963.

      F. P. Wright, for defendants in errror.
   Scott, Judge,

delivered the opinion of the court.

We shall take it for granted that the act of March 3,1851, (Sess. Acts, p. 274,) entitled, “An act to provide for, and laying out roads and highways in the several counties of this state,” furnishes the rule by which we are to be governed in this case, so far as the statutory regulations respecting roads are concerned. If there is any other statute on the subject we have not been enabled to find it, nor have we been referred to any other. This premise is made on account of the great number of different laws for different counties then existing, which made it a matter of no little difficulty to ascertain what was the road law of many counties in the state.

We concur in opinion with the counsel of the plaintiffs, that it is immaterial whether or not the defendants had notice that the road as laid off touched the intermediate points specified in the petition for its establishment, and that no damages had been assessed to the plaintiffs by the commissioners. But from this concession we do not come to the conclusion that the proceedings for opening the .road were nullities, and that the defendants were trespassers. Hard would be the condition of road overseers and the hands compelled to work roads, if, at their peril, they were bound in all instances to see that the orders under which they are acting were regular and in conformity to the constitution and laws. It is obvious that the rigid enforcement of such a doctrine would stop the opening and repairing of roads, and would operate as a repeal of the. statute on that subject. The county court had jurisdiction of the subject matter, and it sufficiently appears that the plaintiffs had notice of its proceedings. Under these circumstances, if there was error or irregularity in the course pursued, the duty required of the plaintiffs was, that they should resort to the remedies afforded by the constitution and laws for relief. They being in court, and having notice such as the law required, ought to have adopted means to obtain redress for the wrong of which they complain. The statute, to which reference has been made as governing this subject, do.es not in express terms give the party wronged an appeal; but we are not therefore prepared to say that an appeal would not lie. In the case of the County of Cooper v. Geyer, 19 Mo. 257, somewhat similar to this, an appeal was sustained. But if no appeal was given, we will not say that the party would be without redress. Resort might sbe had to other means, unless it was intended that there should be no review of the matter.

Where there is jurisdiction over the subject, and notice to the party affected, we do not consider that the circumstance, that the matter of which complaint is made involves an infraction of the constitution, gives the party a remedy different from that to which he would have been entitled had the error or irregularity consisted in any other thing. If, in the progress of a cause, a constitutional question arises, or if the construction of the constitution is involved in it, the party against whom judgment is rendered can not controvert its correctness in an action ..of trespass against those who may be employed to carry it into execution. He must obtain redress in tie same way as if tie error had been committed in reference to any other subject. This view of tie case disposes of all tie instructions about which there •was any controversy.

It is an error to suppose that the plaintiffs were entitled to any notice under the 1.8th section of the act of 1845, concerning roads. By reference to the session acts of 1847, p. 127, it will be seen that the section referred to was repealed by an act approved 11th February, 1847.

We have already said that the act of the 3d of March, 1851, controlled this proceeding, and it sufficiently appears from the record that the plaintiffs had all the notice contemplated by that act. We do not intend to be concluded by any thiDg previously said in relation to the right of the plaintiffs to an appeal from the proceedings of the county court. Whether the act of 1851 designed them to be final or not, we will not now determine. Whatever the meaning of the law may be, we do not consider that the plaintiffs were entitled to the redress they sought in this action. The other judges concurring, the judgment will be affirmed.


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    Wilson, Appellant, v. Drumrite, Respondent.
    1. A mortgagee wrongfully disposed of the mortgaged premises; held, in at suit against him by the mortgagor, that the measure of damages was properly assumed to he the value of the premises sold at the time of the sale, the circumstances of the case not calling for the exercise of any rigor.

      Appeal f rom Greene Circuit Court,

      J. M. Richardson, for appellant.

      Wright, for respondent.
   Scott, Judge,

delivered the opinion of the court.

When this case was formerly in this court (21 Mo. 325), it was settled that Vaughan, the purchaser, having paid a full consideration, and having no notice of the equity of the plaintiff, could not in any manner be affected by this proceeding. It therefore not being in the power of the court to restore the land to Wilson, the plaintiff, the question arises as to the time at which the value of the land conveyed - away by Drumrite shall be estimated. Shall the purchase money he received from Vaughan with interest be the measure of his liability ; or shall he account for the value of the land as estimated at the beginning of the suit, or at the time of trial ? The rule in relation to this subject seems to be, that every case will be governed by its own circumstances. In the matter of Hart v. Ten Eyck, 2 Johns. Ch. 116, which was a case in which an administrator had fraudulently procured the sale of the real estate of an intestate, the chancellor allowed the value, as estimated at the institution of the suit, to be the measure of the damages; and, had it been necessary for the indemnity of those defrauded, he seems to have had no doubt but that the trustee might have been held liable for the value to be ascertained at the time .of taking the account before the master. In other cases, where a trustee has, in violation of his trust, invested the trust property or its proceeds in any other property, the cestui que trust has his option, either to hold the substituted property liable to the original trust, or to hold the trustee himself personally liable for the breach of trust. The option, in such cases, belongs to the cestui que trust alone, and is for his benefit, and not for the benefit of the trustee. (Oliver v. Peat, 3 How. 333.) In the case of Johnson v. Executors of Lewis, 2 Story’s Eq. 157, it was said, the rule is, that if one come tortiously into the possession of an estate he ought not to be spared, and ought to be charged to the extent of what it was capable of producing ; but if he enter rightfully, and can show what the actual income was, that will determine the extent of his liability. The same principle ought to apply when the party in possession believed that the right of property was in himself, and has been thrown off his guard by the belief that he was not liable to account, and consequently kept no accounts. In the case of Norman v. Cunningham, 5 Gratt. 64, by a divided court, the value of the land conveyed in breach of trust was estimated at- the time of the sale of the property. In that case there was no bad faith in the trustee. (Hill on Trustees, 767.)

The circumstances of this case do not call for the exercise of any rigor towards the defendant. If there was any bad conduct in the transaction, it was all on the part of the plaintiff, who, purchasing property át a reduced price and limited credit, failed to comply with his engagements-, thereby defeating the expectations of the defendant and depriving him of the advantages anticipated from the disposition of his property. Moreover, Drumrité, at the time he sold the land, was entitled to a decree in a court of equity to have it sold; and if in doing what equity would have done he has not injured the plaintiff (and there is no proof that he has), in justice the plaintiff is only entitled to have the land estimated at the time of sale, and that with interest would be the measure of his damages.

As this is a case in which the costs were discretionary with the court, we, regarding the peculiar circumstances attending it, do not consider that it would be proper to interfere with the exercise of that discretion. (Shields & Hickerson v. Bogliolo, 7 Mo. 134.) Judgment affirmed ; the other judges- concurring.


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    Kent, Respondent, v. Rogers & Dillon, Appellants.
    1. One of two joint defendants may piead by way of set-off a demand due him from the plaintiff.

      •Appeal from Buchanan Court of Common Pleas.

    Loan, for appellants,
    cited Austin v. Feland, 8 Mo. 309 ; Whaley v. Cope, 4 Mo. 238.

      Borles, for respondent.
    I. Mutual debts alone are subjects of set-off. A joint debt can not be set off against a separate debt; nor a separate debt against a joint debt. (Einney v. Turner, 10 Mo. 207 ; State, to use of Cowan, v. Modrel, 15 Mo. 421; Gorden v. Bourne, 2 Johns. 155.) The ease of Austin v. Eeland is not in point, and if it were, the later cases overrule it.
   Scott, Judge,

delivered the opinion of the court.

The only point in this case is, whether a set-off of a debt due Dillon, one of two joint defendants, can be pleaded against the demand of the plaintiff. The case of Austin v. Feland, 8 Mo. 309, was decided on the authority of Whaley & Blackwell v. Cope, 4 Mo. 283. The case of Austin v. Feland, in its circumstances, is exactly like that now under consideration. The justice and great convenience of allowing a set-off under the circumstances are apparent, and the course is sanctioned by the authority of respectable courts. The case of Finney v. Turner, 10 Mo. 208, does not profess to overrule that of Austin v. Feland, the justice of which commends itself to the sense of every one. If Dillon, the defendant, will use a debt due him individually as a set- off to a demand for which another is jointly liable with him, is any one affected but himself ?

We do not see that the case of the State v. Modrell, 15 Mo. 42, has any bearing on that now under consideration.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.


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    Trent’s Administrator, Appellant, v. Trent, Respondent.
    1. A petition to a probate court by an administrator for a sale of lands for the payment of debts should not be dismissed for want of an averment that the lands mentioned in the petition belonged to the intestate at the time of his death.

      •Appeal from, Chariton Circuit Court.

    This was a petition to the county court of Chariton county by the administrator of the estate of Alexander Trent. The petition (which was filed at the November term, 1852, of said court,) sets forth that said Trent died intestate, not leaving any personal estate sufficient to pay the debts of his estate ; that in the lifetime of said Trent certain judgments (which are specified) were rendered against him on the 9th day of September, 1843 ; that said judgments were duly allowed by said county court against his estate, November 7, 1851; that on the 2d day of March, 1847, a certain other judgment was rendered against said Trent, which was also allowed by said county court, November 7, 1851; that executions issued on said judgments first named, and were levied during.the lifetime of said Trent on a certain tract of land ; that after the levy, and before sale by the sheriff, said Trent died, and the sheriff returned the said executions with the facts endorsed thereon after the death of said Trent; that the said real estate is bound by the liens of said judgments and by the levy of said executions. The petitioner prayed the court “ to order the sale of said real estate, and all and any real estate belonging to said estate or on which said judgments or either of them are a lien, or so much of such real estate as will pay the debts of said estate.” This petition was accompanied with the following list of debts, endorsed on the petition, verified by the affidavit of the administrator : “ List of debts due to and from the within estate and the real and personal estate administered. Debts due the estate — to-wit: one note due from James Dunn, for the sum of $900, dated January 17th, 1850. I know of no debts against the estate except those named within. I know of no real estate except that mentioned, and no personal property. No funds on hand.”
    One Thomas H. Trent appeared and moved to dismiss the petition. The motion was granted. An appeal was taken to the Circuit Court. In the Circuit Court said Trent also moved the court to dismiss the petition. This motion was sustained, and the action of the court in so sustaining the motion is the error complained of. This motion was made on the following grounds: “The petition is for a salé of the land to satisfy liens alleged to exist by virtue of certain judgments in said petition mentioned, when it appears on the face of said petition that said judgments are not by law liens on said land as alleged in said petition. If said judgments were at any time liens on said land, it is shown in the petition that said liens had expired before the death of said Trent and before such application was made. Said petition does not show that said Trent, deceased, at any time, owned the land mentioned in the petition. Said petition does not show that said Trent was at the time of his death the owner of or interested in the land mentioned in said petition. Said petition does not show that said Trent was at the time of his death the owner of or interested in any land, so as to subject such land to the lien of the executions or of the judgments mentioned in said petition. The county court has no power to subject land to the satisfaction of an execution unless the judgment on which the execution issues be a lien on such land. No authority is shown for issuing the execution on which the levy is alleged to have been made on the land mentioned in the petition. On the contrary, it appears from the petition that the executions mentioned in the petition were unlawfully issued, if issued at all. The pretended executions mentioned in the petition, if legally issued, constitute no lien which by law entitled them to any preference over other debts, or which by law authorized the county court specially to sell land to satisfy their liens. No sufficient cause is shown in such petition to authorize the sale of lands or to authorize the county court to order a sale of land.”

      J. B. Clark, C. TV. Bell and Turner, for appellant.
    I. Although the petition does not give dates sufficiently to show whether the executions were issued in due time and continued in force at the death of Trent, yet the court ought to presume that they were regularly and lawfully issued, levied and returned, if from the facts stated such may have been the case. The judgments may have been kept alive by the issuing and return of previous executions. (Bowman v. Potter, 1 Mo. 518 ; Lindell v. Benton, 6 Mo. 361; Clemens v. Brown, 19 Mo. 709.) Bolton v. Lansdown, 21 Mo. 399, was decided under tbe act of 1849.
    II. Tbe petition ought not to have been dismissed for want or more particularity in tbe statement of the facts on which the liens depended.
    III. Although the original judgment liens had expired, the issuing and levy of the executions, if regular, created a new lien.
    IV. It was unnecessary to allege that Trent was entitled to the land. The county court had no power to investigate the question of title.
    V. Even if there was no lien, that was no cause for dismissing the petition. The question as to the lien did not affect the right to sell.

      •Abell & Stringfellow, for respondent.-
    I. The petition shows no inventory; no list of debts. It does not show that the land asked to be sold belonged to deceased, or that he died seized or ever had title. In fact he had no title — never had any — did not die seized.
    II. Tbe courts do not order sales of doubtful titles.
   Scott, Judge,

delivered the opinion of the court.

This was an application by an administrator to sell real estate for the payment of debts. We see no good reason for dismissing the application. It was in conformity to law, and accompanied by the necessary documents. The inventory was sworn to, and contained the information required for the action of the court. Although there was an allegation in the petition that the judgments and executions described therein were liens upon the land, and there was a prayer that the land might be sold for their satisfaction, yet if the court was of the opinion that the allegation was unsupported, the general object of the petition was not thereby affected. It still remained an application for the sale of real estate for the payment of debts, and the question of a lien could only be material in considering the order in which the debts were to be paid. There being no other deb.ts than those named in the petition, the proceeds of the sale must have been applied to their satisfaction, and the question of a lien could only have incidentally arisen among those entitled to them.

It was objected to the petition that it did not show that the intestate, at the time of his death, was owner of the land mentioned in the petition. There is nothing in the statute which requires that any such averment should be made. The deed upon a sale by an administrator of real estate for the payment of debts only conveys to the purchaser all the right, title and interest which the intestate had in the same.

This court has discountenanced the practice of selling real estate when the title is in such a condition as must produce a sacrifice, and when it can be made clear before the sale. Under such circumstances, the proceedings should be delayed until' the title can be relieved from embarrassment. The condition of the title of the real estate involved in the present, affords no occasion for the exercise of this discy^ug (Valle v. Bryan, 19 Mo. 423.)

The question relative to the continuance of execution on the land after the death of the debtár in the execu-h .1. <* -HTMMVAf tion was not argued, and we shall express no opimdi ing it. The facts on which that question arises, as : in relation to the lien of the judgments, should be stated;w!E such precision as will enable the court to give its judgment respecting them.

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


author: RylaND, Judge,

text:
    Bradley et al., Defendants in Error, v. Bradley et al., Plaintiffs in Error.
    1. A-will was executed in the following form: “I, A. B., of, &c., do, &c., make this my last will and testament in manner and form following, to-wit: first, that all my just and lawful debts he paid; second, that my wife, C. D., be my sole heir to all my estate remaining on hand after the payment of my just debts, real and personal, to-wit: lands, negroes, horses, cattle, hogs, sheep, farming utensils, household and kitchen furniture, money and effects. Given under my hand this day and date above written.” Held, 1st, that the children of A. B. were not named or provided for in this will within section eleven of the act concerning wills (R. C. 1845, p. 1080) ; that consequently he died intestate as to such children ; 2d, that evidence is not admissible to prove that at the time of making the will the testator declared, that he would name no other persons in his will — that he had done all for his children he intended to do — and that he designed all he had at his death to go to his wife absolutely.

      Error to Callaway Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Gardenhire and ¿Insell, for plaintiffs in error,
    cited 11 S. & R. 289 ; 12 id. 131; 15 id. 219 ; 14 id. 811; 11 Wheat. 59 ; 10 Mass. 385 ; R. C. 1845, p. 1086, § 51; Block v. Block, 3 Mo. 407 ; Wilder v. Gross, 14 Mass. 357 ; 1 Mass. 165; Wild v. Brown, 2 Mass. 569; Church v. Crocker, 3 Mass. 17 ; Guitar v. Gordon, 17 Mo. 411; 2 N. H. 699 ; 1 Terr. Laws, 125, 132, (1807) ; p. 405, (1815) ; p. 787, 1821); R. C. 1825, p. 795; R. C. 1835, p. 620; R. C. 1845, p. 1080 ; Wigvam on Wills, 51 ; Dessaus. Eq. 506 ; 6 Mete. 400.

      Young, Harden and Morrow, for defendants in error,
    cited Guitar v. Gordon, 17 Mo. 411; 14 Mass. 357 ; Tucker v. Barton, 18 Pick. 162 ; 6 Mete. 400 ; 1 Jarman on Wills, 146 ; Gregory y. Cowgill, 19 Mo. 415 ; Goode v. Goode, 22 Mo. 518.
   RylaND, Judge,

delivered the opinion of the court.

This is a petition by the plaintiffs, part of the children and heirs of Thomas P. Bradley, deceased, against the widow and others, children and heirs of said Thomas P. Bradley, in order to have dower in the estate of said Bradley assigned to his widow. The petition sets out the will of said Thomas P. Bradley, deceased ; and avers that he left real estate to the value of $1500, and slaves to the value of $5000 and upwards, and other assets. The petitioners allege that said Thomas P. Bradley omitted to mention the names of his children and heirs in his said will, and failed to make any provision for them ; and alleges that said Bradley died intestate as respects his said real estate and slaves and his said children ; and prays that dower may be assigned in the estate to his said widow, Ann Bradley.

The infant defendant Franklin P. Bradley answered by his guardian ad litem, duly appointed, denying that he and his co-defendants held said premises together with the petitioners. The defendant Ann Bradley answered, stating that the petitioners’ ancestor'made his will and died; that the will was proved; that the exhibit made in the petition is a true copy of the said will. She denies that the testator failed to name and provide for his children in his will; denies that he died intestate as to any of them. On the contrary, she states that she is informed and believes that all his • children are named and provided for in the said will; and that the said will is valid under the laws of this state as against his children. This she says is a question of law to be submitted to the court upon the facts admitted and to be proved. She denies all light of the petitioners in and to the estate of the deceased, and says that she is the sole and exclusive owner of all the land that the testator had at his death ; that she is the sole tenant thereof, and that none of the other parties to this suit have any interest in it.

The following is a copy of the will: “ I, Thomas P. Bradley, of the county of Callaway, and state of Missouri, do on this 10th day of June, in the year of our Lord one thousand eight hundred and fifty-three, make this, my last will and testament, in manner and form following, to-wit: First, that alj my just and lawful debts be paid ; second, that my wife Ann Bradley be my sole heir to all my estate remaining on hand after the payment of my just debts, real and personal, to-wit: lands, negroeá, horses, cattle, hogs, sheep, farming utensils, household and kitchen furniture', money and effects. Given under my hand this day and date above written. Thomas Poe Bradley. Test: Thomas B. Harris, William Iioup, William B. Swon.”

The trial o£ the issue was submitted by consent of the parties to a jury; and after the defendants had read to the jury the will of Thomas P. Bradley, as above set forth, they offered to prove by the draftsman of the will that the said testator, at the time of making his will, declared that he would name no other person in his will; that he had done all for his children he intended to do ; and that he designed all he had at his death to go to his wife absolutely. To this evidence the plaintiffs .objected, and the court sustained the objection, and excluded •the evidence, and the defendants excepted.

The plaintiffs asked the following .instruction: “That the will read in evidence makes no provision for the .children and heirs of Thomas P. Bradley; nor is either of them named in said will, and by the laws of this state said Thomas P. Hadley died intestate as to said children ; and said children and heirs are entitled to partition of his property as if he had died without having made a will.” This instruction the court gave,- and the defendants excepted.

The defendants asked for several instructions, which the eourt refused to give, and which are deemed of no importance in deciding the questions now before the court. The questions on the record are principally two : Did the court err in rejecting the testimony of the defendants in relation to the declarations of the testator that he would name no .other person in his will — that he had done all for his children he intended to do— and that he designed all he had at his death to go to his wife absolutely ? And lastly, Did the court err in giving the plaintiffs’ .instructions to the jury ?

The testimony offered by the defendants v/jas properly excluded. Its effect was to make by .parol a will .for the testator. Admit such testimony, and the will is made in qourt by .the witnesses, and not in writing by the testator ,as the statute re.quires. In Gregory v. Cowgill, 19 Mo. 415, the.court belojv ^ejected -evidence q£ tl?¿ declarations of Pyobert Sinclair, tjqe testator, stowing that by his will he intended to gire his wife a power of disposal oyer his entire estate, both real and personal. This was excepted to, and assigned for error in this court. This court held, “that on no principle were the declarations of the testator admissible to explain the meaning of his will.” None of the circumstances were present which influence courts to admit parol evidence to give effect to a bequest or devise. . Parol testimony as to the declarations of a testator can not be given in evidence to control the language of a will, or give to it a different effect from that which it plainly imports ; and wherever the words of a will are plain and obvious in their terms, they would exclude all evidence of declarations of the testator tending to show his real purpose to have been other than that apparent upon the face of the will. On the other hand, latent ambiguities, as to the person or the devise, may be removed by the aid of parol evidence. (6 Metc. 405.) The legal effect of a will can not be changed or varied by admitting evidence of the testator’s declarations. (Farrar v. Farrar, 5 Pick. 409; Mann v. Mann’s Exec’r, 1 Johns. Ch. 231; 14 Johns. 1; Wigram on Wills, 73.) Thompson, Ch. Justice, in the case of Mann v. Mann’s Exec’r, (14 Johns. 9,) said, “that the intention of the testator is to be sought after and carried into effect; that such intention is to be collected from the will itself, unaided by any extrinsic evidence, except in the case of latent ambiguity, or to rebut a resulting trust; and that no parol evidence is admissible to contradict, enlarge or vary the words of a will, are general rules so well settled that they may be assumed as elementary principles of law.” “It is conceived that there is in principle an objection to the reception of the declarations of intention. When a person executes a written instrument, (whether a will or deed or written agreement,) he must be supposed to express and embody in the instrument all he has to say of his intention. Thenceforward his intention is to be collected only from the instrument; reference also being allowed, when necessary, to surrounding material facts and existing circumstances. Pacts may of course be referred to for explaining an ambiguity, and proving the intention, so far as they can be applied for that purpose, consistently with the language of the instrument; but the party himself ought not to be allowed to add any thing in' the way of explanation, or for declaring his intention ; all he had to say of his intention, he must be supposed to have conclusively said when he executed the instrument. This, it is conceived, is the principle of common law and of sound reason, applicable alike to all written instruments ; and the ground and reason on which the principle is founded must obviously be on account of the great danger and inconvenience which would result from evidence of declarations, well described by Lord Coke as ‘the nude averments of parties, to be proved by the uncertain testimony of slippery memory.’ If declarations are alleged to have been made at the time of executing the instrument, the danger is that they may be mistaken or misunderstood or misrepresented, or possibly altogether an invention. If they are alleged to have been made béfore or after that time, what complete assurance have we, in all cases, that the intention of the party, at the time of executing the instrument, was the same as before that time, or had not been altered afterwards ?” (2 Phil. Ev. ch. 7, p. 381.)

The will of Thomas P. Bradley presented no case of ambiguity of any sort ; and there is no resulting trust arising thereon. It was then very properly decided by the court below in ruling out the proposed evidence. There was no ground for its admission ; and it was warranted, as we conceive, by no principle or rule of law.

The answer to the second question depends upon our statute. By the statute of the territory of Louisiana, concerning wills, descents and distribution, which went into force on the 1st of September, 1807, it was declared by the 22d section, that, “ Where any person shall make his or her last will and testament, and omit to mention the name of any child or children, or afterward shall marry or have a child or children not provided for in any such will, and die leaving a widow and child, or either widow or child, although such child be born after the death of its father, every such person, so far as shall regard the widow or such child or children, shall be deemed to die intestate, and such child or children shall be entitled to such proportion, shares of dividends of the estate, real or personal, of the deceased, as if he or she had actually died without any will,’5 &e. In 1815 the following was the provision on this subject: “ Where any person shall make his or her last will and testament, and omit to mention the name of any child or children, if living, or the legal representatives of such child or children, or afterwards shall marry or have a child or children not provided for in such will, and die leaving a widow and child, or either widow or child, although such child be born after the death of the father, every such person, so far as shall regard the widow or such child or children, shall be deemed to die intestate ; and such child or children shall be entitled to such proportion, share and dividend of the estate, real and personal, of the deceased, as if -he or she had actually died without will,”1 &c. This section of the law of 1815 was reenacted by the legislature of the state of Missouri in 1821, with little or slight change in its phraseology. In 1825, the legislature made an important change in this provision : “ If any person shall make his or her last will and testatment, and die leaving a child or children, or the descendants of any such child or children (in case of their death), not provided for in such will, although such child or children be born after the death of the testator, .every such testator, so far as shall regard any such child or children, or their descendants, not provided for as aforesaid, shall be-deemed to die intestate ; and such child or children, or their descendants, shall be entitled, &c. ; provided that such child or children, or their descendants so claiming, have not had an' equal portion of the testator’s estate bestowed on him, her or them, in the testator’s lifetime, by way of advancement.” Here, for the first time since 1807, the words “not named” or “omit to mention the name of any child' or children” are-left out, and the proviso about advancement is inserted. Unr-der the act o£ 1825, the case of Block et al. v. Block et al. arose, and Judge Tompkins dissented from the construction given to it by the other two judges — McGirk and Wash. The majority of the judges thought the difference between the act of 1821, which was the same as the acts of 180T and 1815, and the act of 1825 was merely in words, not a substantial difference, and that a testator might name his child and bequeath to it the sum of twenty-five cents, and that would be a provision under the act of 1825. Judge Tompkins held, that by omitting the clauses of the acts of 1821, 1815 and 1807, where the testators, if they “ omit to mention the names of any child,” &c., are declared to die, as to such child, intestate; and retaining the expression “ not provided for,” the legislature meant a beneficial provision according to the testator’s circumstances in life. He asks, why change the phraseology if no change in the meaning was meant ? This decision was had at October term, 1834, and at the ensuing session of the legislature, which commenced in November following, the provision was altered to what it now is: “If any person make his last will and die leaving a child or children, or descendants of any such child or children, (in case of their death,) not named nor provided for in such will,” &c. In 1845, the words are, “ not named or provided for in such will.” So the legislature turned back in 1834 and ’5 to what Judge Tompkins called the old law on this subject, and such has been the law ever since. The statute expressly declares, “ If any person make his last will and die, leaving a child or children, or descendants of such child or children (in case of their death), not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator, so far as shall regard any such child or children, or their descendants, not provided for, shall be deemed to die intestate; and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be'assigned to them ; and all the other heirs, devisees and legatees shall refund their proportional part.” (R. C. 1845, tit. Wills, § 11.) “If such child, &e., shall have had his equal proportion of the testator’s estate bestowed on him, in the testator’s lifetime, by way of advancement, he shall take nothing under the provisions of the 11th section.” (R. C. 1845, tit. Wills, § 12.) Such are the provisions of the statute laws of our state on the subject of this controversy now before us.

The record shows that the testator Thomas P. Bradley died leaving sundry children living at his death; The will does not name or provide for any one of these children. Here is a case directly within the statute. How can we say that the heirs or, in other words, the children of said Thomas P. Bradley, deceased, were in his mind when he made this will ? He has not mentioned the names of either one of them. He has not, by terms, provided for them or either one of them. He has not said that he has heretofore given to his children all he intended for them by the terms of this will. The will is silent upon the subject of his children. Nor can this court see any ground to suppose the children of the testator are in his mind when he was making this will. He says that his wife shall be his sole heir to all his estate. Is this equivalent to saying that he has or has not a child ? We can not see how this will can be withdrawn from the operation of our statute. Our statute is not like the Massachusetts statute ; for this has the provision in it, unless it shall appear that such omission was intentional and not occasioned by any mistake or aeeident.” (6 Metc. 404.) We are not able to reason ourselves clear from the effect of our statutes by any thing said upon the subject by the Massachusetts eourts. Ours is a positive enactment — no proviso to it on account of mistake or intentional omission. If the name of the child is omitted in the will, and no provision made for such child, then the testator must be considered as dying, as to sueh child, intestate, and such child will be entitled to his proportional share, unless he has been provided for by advancement by the testator in his lifetime ; and this previous advancement in the lifetime of the testator is the only thing that will debar the unnamed and unprovided for child from his share. Had the testator mentioned his children and cut each one off with one cent, we should have sustained the will under our former decisions ; but there is nothing here on which we can for a moment withdraw this will from the operation of the 11th section our statute above cited. We have no grounds1 on which to say of for a moment that the testator remembered at the time his children. Here is no son-in-law named or called up to memory— no grandson, as was the case in Wilder v. Goss, 14 Mass. 358. And in reading the testator’s will in this case, it is not in the power of the court, from the will alone, to say whether the testator had a child living or not, or whether he ever had one. As to the children of the testator the will is a mere blank. In short, were this court to reverse this judgment on account of the instruction which the court below gave to tho jury, it would be nothing less than a virtual repeal of the statute. Such is not our province.. To us it belongs only dicere legem. Let the judgment be affirmed ;

Judge Scott- concurring ; Judge Leonard not sitting.