text:
    Rice, Plaintiff in Error, v. Underwood, Defendant in Error.
    1. Where gattle are taken up and posted as strays, and the owner, within a year from the date of such taking' up, forcibly takes possession of them, he must pay the legal charges of the one who took them up as strays.

      Appeal from Ralls Circuit Court.

    This action was originally commenced before a justice of the peace. The account filed with the justice contained items for costs paid and expenses, &c., incurred in taking up and posting as strays a lot of mules. On appeal to the circuit court, the cause was submitted to the court on the following-agreed statement of the facts: “ The account filed by the plaintiff is for fees paid officers for posting the animals of defendant as alleged, and for trouble and expenses in keeping them. There has been no express agreement by the defendant to pay said fees and expenses. Defendant forcibly took said animals out of jfiaintiff’s enclosure.” The court, at the instance of the defendant, gave the following declaration of the law: “ From the statement of facts as agreed upon by the parties, no promise on the part of defendant to pay the costs of taking up the animals as strays or to pay expenses of keeping said animals can be implied.” The court found for the defendant.

      Lancaster and Anderson, for plaintiff in error.
    I. The instruction given was erroneous.
    Broadhead, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

The agreed facts do not show whether the animals were strays, subject to be taken up, nor when they were taken up, nor when they were posted, nor what sum the plaintiff paid for that purpose ; but, assuming, as the counsel have in their briefs, that the mules were taken up as strays and that the plaintiff performed his duty as required by the statute, enough is shown to raise a proposition of law. If the plaintiff had complied with the stray law (R. C. 1845, p. 1038), the title to the mules would have vested in him after the expiration of one year; and, if within one year the defendant had claimed them and proved his right, he would only have been entitled to take them upon payment of all costs, the reward and a reasonable allowance for keeping them.” The plaintiff had a lien on the mules for whatever was due to him, and though he had no right of reclamation against the defendant if he chose to abandon his property, he had the right of possession until he was paid. By taking the property the defendant admitted that it was worth more than the plaintiff’s legal charges on it, and he could not by committing a trespass avoid the liability to pay the just demands against it. The law implied an obligation on the defendant, if he took the mules within one year from the time they were taken up, to pay “ all costs, the reward and a reasonable allowance for taking the same,” and the plaintiff was entitled to recover his legal charges.

The instruction was erroneous, and the judgment will be reversed and the cause remanded ;

the other- judges concur.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    American Iron Mountain Co., Appellant, v. Evans et al., Interpleaders, Respondents.
    1. The admissions or declarations of one partner are competent evidence against the other partners; if made after the dissolution of the partnership they are not competent evidence.

      Appeal from Washington Circuit Court.

      T. C. Johnson and Beal, for appellant.
    I. There being no proof of a dissolution, Reed was still a partner, and bis declaration, made both before and after tlie deed of trust was made, that Redden owed the firm of A. Reed & Co. nothing, that he had paid up every thing, was certainly competent evidence in. this case. The court also erred in refusing to strike out the interplea.

      Noell, for respondent.
    I. There was no error in refusing to strike out the inter-plea. The only books in which there were any charges against Redden were produced. It was competent for Reed when he withdrew from the firm or before to turn over the whole debt of Redden to J. S. & J. R. Evans.
   Richardson, Judge,

delivered the opinion of the court.

There is evidence tending to show that the indebtedness of Redden to the interpleaders, whatever it was, accrued at the store kept at Kennett’s square by the interpleaders and Reed in the name of A. Reed & Co., and there is no dispute that at one time Reed was a partner in that establishment. But though he may have been a partner at the time the account was made, it was competent for him, on his retirement from the firm, to transfer all his interest or his interest in any particular account to the other partners, and then he could make no admission to the disparagement of their rights. Conceding that the acts of Reed in procuring the execution of the deed of trust and naming the interpleaders as the sole beneficiaries in it is evidence that he had previously transferred whatever interest he had in the accounts, that fact does not meet the offer of the plaintiffs to show that before the execution of the deed Reed stated that Redden had fully paid his indebtedness to A. Reed & Co. The evidence is conflicting as to the time that the partnership was changed by the withdrawal of Reed; some of the witnesses saying that it was before the date of the deed, and others that it was not until several months afterwards; and in the absence of satisfactory evidence on this point, which it ought to be in the power of the interpleaders to produce, the admissions were competent for whatever they were worth. It may be that when the declarations are proved they will be insufficient in the opinion of the jury to overcome stronger evidence of the justness of the debt, but they can be considered in connection with the circumstances under which they were made and receive such weight as they deserve.

The interpleaders having produced under the order of the court the books of their establishment at Kennett’s square, which they said contained every entry of their transactions with Redden, we will not undertake to revise the discretion exercised by the court in refusing to strike out the plea.

Judge Scott concurring,

the judgment will be reversed and the cause remanded.


text:
    Hoffman, Respondent, v. Riehl, Appellant.
    1. Where there is a palpable omission in the description of a deed, it may be supplied by construction.
    2. In the absence of calls for specific objects or other controlling calls, the course will control.

      Appeal from St. Louis Circuit Court.

    The following is the description contained in the deed of John Steiner to Mary Steiner: “ The west half of the east half of the south-west quarter of section 14, township 44 north, range 6 east; and also a piece or parcel of land of the south-east side of the north-west fractional quarter of the same section, township and range — butted and bounded as follows: Beginning at a stake on the line between said section 14 and section 23, from where the corner of sections 15, 22, 23 and said section 14 making but one corner bears west 20 chains distance; thence south 40 chains to a stake; thence north 87 degrees west to the south-west corner of said fractional quarter; thence north two chains and sixty-two links to a stake; thence north 87 degrees east 30 chains to a stake, from which a black-jack 12 inches in diameter bears north 48 degrees east, distance 40 links ; thence south 42 chains to a stake on said line between said sections [?] to the beginning ; and containing as aforesaid 50 acres, be the same more or less,” &c.
    The court, at the instance of the plaintiff, gave the following instruction to the jury: “ 1. If the jury find that it is impossible to survey the land intended to be surveyed by the deed of John to Mary Steiner so as to comply with the courses, distances and corners therein called for, then the call in the deed for the ‘ west half of the east half of the south-west quarter of section fourteen’ operates to convey to said Mary the equal half of said west half of said quarter section, and the jury will disregard the other calls in the deed.” The court refused the following among other instructions asked by the plaintiff: “ 2. In considering the deed from John Steiner to Mary Steiner, the jury are authorized to understand and construe it as if the word £ thence’ were written between the words ‘ said sections’ and the words ‘ to the beginning.’ ”

      H. N. Hart, for appellant.

      Krum & Harding and Gibson, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

If the only description in the deed had been “the west half of the east half of the south-west quarter of section 14,” under some circumstances it would be just and proper to determine the rights of the parties by an equal division of the land between them; but the deed under which the plaintiff claims calls for specific boundaries, courses, distances and corners, which must not be disregarded if they are intelligible and furnish the necessary data for the true location of the land.

The only controversy between the parties arises out of the manner in running the division line between them, and any confusion that may exist in regard to the starting point of the survey is entirely immaterial to the decision of this case, because, no matter where the surveyors begin, they all agree that in running the north line, going east, they reach a stake in the north-east corner of the tract, “ from which a blackjack, 12 inches in diamater, bears north 48 degrees east, distance 40 links.” This corner is on the line that separates the land of the parties, and, being fixed beyond all dispute, the only question to decide is, how the line shall be run from this established point. The language of the deed is “ thence south 42 chains to a stake on said line between said sections (14 and 23) to the beginning.” The survey begins at some point, no matter where, on a line which is well ascertained between sections 14 and 23, and to close the survey this line must be reached. Now it is evident that the line must not be run from the black-jack corner to the place of beginning, because that would be a great departure from the course indicated in the deed, and quite a difference in the distance called for; besides, the defendant does not insist on such a construction, and of course the plaintiff does not, for it would put him at once out of court. There is manifestly an omission, in the description, of the adverb “thence” after the word sections; and the call should read “ thence south 42 chains to a stake on said line between said sections ; and thence to the beginning;” and the plaintiff is bound to consent to the insertion of this word or admit that he is in possession of a large portion of the defendant’s land.

Inasmuch, then, as the starting point is well known, and the object to be reached is ascertained, and the course given, in our opinion the line should be run south to the section line, in obedience to the direction in the deed, making proper allowance for the variation of the magnetic needle from the true meridian. The length of this line called for in the deed is 42 chains, and the distance between the corner and the section line, on a due-south course, is 43 chains and 50 links, but the difference is trifling, and distance, being the most uncertain, must yield to the other controlling calls. The plaintiff, however, can not object to the discrepancy of distance, because the line run according to his theory is 43 chains 60 links, and departs a degree and a half from a due south course.

The other judges concurring, the judgment will be reversed and the cause remanded, to be tried in conformity to this opinion.


author: Scott, Judge,

text:
    Frissell et al., Defendants in Error, v. Fickes et al., Plaintiffs in Error.
    1. An umpire, chosen by arbitrators upon their own disagreement to decide the matter submitted to arbitration, must be sworn before he can hear the evidence in the cause.
    2. Where a matter in dispute is submitted to arbitrators with a power on their part in case of a disagreement to call in an umpire, the umpire may be appointed before the arbitrators commence their investigation, or at any stage of the proceedings; he ought to see and hear the witnesses.
    3. It does not invalidate an award that the arbitrators join with the umpire in making the same.
    4. Where in a submission to arbitration the matter in dispute is stated to be the “taking of a quantity of timber from the land” of the plaintiffs, the arbitrators would not be authorized to assess treble damages.

      Error to Washington Circuit Court.

    The error complained of in this case is the affirmance of an award made under the following agreement of submission : “ Whereas M., J. & J. Eickes, a firm composed of Morgan Eickes, John Eickes and Jacob Eickes, have taken a quantity of pine and oak timber growing and being upon the land of M. Erissell and M. A. Todd ; and whereas'it has been agreed between M., J. & J. Eickes on one part, and Erissell and Todd of the other part, to refer the amount of damages they, said Erissell and Todd, could and ought to recover by law from said Eickes for the taking of said timber to the arbitrament of George Walton on the part of Erissell and Wood, and J. W. Johnston on the part of said Eickes ; and it is agreed between said parties that in case said arbitrators can not agree upon the amount of damages to be axvarded, the arbitrators above named may select an umpire to settle such matter as they may agree upon. It is further agreed that the amount of damages assessed by said arbitrators shall be paid or secured forthwith, and in default of such payment or security the said award shall be made and become the judgment of the circuit court of Washington county; and the said M., J. & J. Fiches bind themselves to comply with the law rendering judgment by confession. In testimony whereof we have hereunto set our hands and seals this 8th day of July, 1856. [Signed] M. Fi-issell (seal), M. A. Todd (seal), Morgan Fiches (seal), John Fiches (seal), Jacob Fiches (seal).”
    An award was made signed by the two arbitrators above named and Jesse Mcllvaine, whom they had called in as umpire. They awarded treble damages to the plaintiffs. Mcllvaine, the umpire, heard the testimony introduced before the arbitrators, but he was not appointed or sworn until after the arbitrators had heard all the testimony; no new testimony was introduced before the umpire. Motions to affirm the award and to vacate the same were made in the circuit court. The court affirmed the award.

      Noell and Carter, for appellants.
    I. The fact that Mcllvaine, the umpire, was not sworn until all the evidence was closed, and that after being sworn he heard none of the evidence, makes the award a nullity, and no judgment could lawfully be entered upon it. (Toler v. Hayden, 18 Mo. 399.)
    II. Treble damages should not have been allowed. Taking timber does not make the taker liable under the first section of the act concerning trespasses. (It. C. 1855, p. 1552.)

      Frissell, for respondents.
    I. The arbitrators were not called upon to appoint an umpire until they had disagreed. It was not necessary that he should hear any of the evidence. The submission contemplates that the arbitrators should state to him the matter upon which they differed, and that he should settle it. In point of fact he did hear all the testimony. There was no error in awarding treble damages.
   Scott, Judge,

delivered the opinion of the court.

It is objected to the award that the umpire was not sworn. Arbitrators must be sworn before they hear the evidence. (Toler v. Hayden, 18 Mo. 399; Caldwell on Arbitration, 101 note.) A submission to two arbitrators and their umpire, or to two and their umpire in case of disagreement, means precisely the same thing; for umpire, in the common signification of the word, denotes a person that is to make an end of the matter, if the others can not. (Bac. Abr. Arbitrator D., 279; 10 B. Mon. 123.) If arbitrators join with the umpire in the deed of umpirage, it is merely surplusage and the deed is good. (3 Burr. 1474; Bates v. Cook, 9 Barn. & Cr. 407.) It is now established that the arbitrators do not divest themselves of the power to proceed in the reference by nominating an umpire. Such appointment may be made either before or after their own investigation of the matter has commenced, or in any stage of their proceedings. In one case, the court of King’s bench expressed their opinion that it was the fairest way to do so in the first instance. (Roe v. Doe, 2 Term, 644; Harding v. Watts, 15 E. 556; Bac. Tit. Arb. 279.) In the case of Salkeld v. Slater, 12 Adol. & Ellis, -, it was said that it is important to have it understood that the umpire, as well as the arbitrators, ought to see and hear the witnesses. In Passmore v. Pettel, 4 Dallas, 271, the court say, where an umpire is to be chosen by referees, he stands in the same situation precisely as the referees themselves, both with respect to the powers to be exercised and the duties to be performed. From this principle it seems to follow that the umpire, when he takes upon himself that character, must proceed in the examination of the matter submitted to him in the same manner as the arbitrators are required to do. Then the umpire must be sworn before he can hear the evidence.

¥e do not seo the ground on which the arbitrators proceeded in trebling the damages. There was nothing in the terms of the submission which authorized such a step. It is certainly the fairest way to have it expressly understood that the damages shall be trebled, if that is the agreement, by making it a part of the submission. But what we consider as conclusive on this subject is, that it does not appear from the matter submitted to arbitration that it was such a trespass as would have wai’ranted the court in trebling the damages had the cause not been referred.

Reversed and remanded.

Judge Richardson concurs.


text:
    Herrington et al., Appellants, Herrington et al., Respondents.
    1. "Where a father, being in failing circumstances, purchases land and causes the title to be vested in a third person in trust for his own children with a view to defraud his creditors, there will be a resulting trust to himself for the benefit of his creditors; this interest may be seized and sold on execution under a judgment against him in favor of one of those creditors.
    2. Notice by lis pendens can exist only after service of process ; nor would a purchaser pendente lite be afíécted by such a notice if the suit, during the pendency of which he made his purchase, should be afterwards abandoned.

      Appeal from Jefferson Circuit Court.

    The object of this action is to obtain a decree of title to certain lands in Jefferson county. The plaintiffs are Isaac A. S. Herrington, wlio sues by Ms next friend, and Ms father Isaac Herrington. The defendants are John Herrington, James A. Beal and Bazile Hiney. The facts as they appear in the finding of the facts by the court are substantially as follows: Isaac Herrington purchased the land mentioned in the petition and caused the legal title to be vested in John Herrington with a view to defraud his creditors, of whom James A. Beal was one. John Herrington executed a title bond by which he agreed to convey said land to the two infant children of said Isaac Herrington. One of said children has since deceased, leaving his brother and father his only heirs. Beal obtained a judgment for his debt, and caused all the interest of Isaac Herrington in said tract to be sold under an execution, and became the purchaser thereof at the sheriff’s sale and received the sheriff’s deed therefor. Beal also obtained a conveyance of the legal title from John Herrington. Beal conveyed said tract of land on the 21st of January, 1855, to Thomas 0. Eletcher as trustee for Jefferson county, to secure certain indebtedness due to said county from said Beal. Said Eletcher, as trustee, sold and conveyed said land on the 16th of August, 1856, to Bazile Hiney. The court refused to grant the relief prayed on the ground, as stated in the finding, that the claim of plaintiffs was “ tainted with fraud.”

      Fletcher and Greene, for appellants.

      Noell and Beal, for respondents.
    I. The transaction was fraudulent with respect to Isaac Herrington’s creditors; they are entitled to the land. (12 Mo. 169; 14 Mo. 160; 15 Mo. 62; 16 Mo. 225 ; IT Mo. 209; 18 Mo. 1T4, 299 ; 23 Mo. 5T9, 588, 168; 24 Mo. 282; 25 Mo. 329; 10 Mo. 303; 5 Mo. 296.)
   Richardson, Judge,

delivered the opinion of the court.

Before and at the time the transcript of Beal’s judgment was filed in the office of the clerk of the circuit court, Isaac Herrington was insolvent, and the land, being held by John Herrington fraudulently for the purpose of shielding it from Isaac’s creditors, was subject to Beal’s execution. The unrecorded title bond, by which John Herrington agreed to convey the land at a future day to Isaac’s children, could not and did not defeat the judgment lien, and the sheriff’s deed to Beal operated to convey the beneficial interest in the land. (Rankin v. Harper, 23 Mo. 579.) The deed of John Herrington to Beal did not certainly weaken the latter’s title; for, if Beal had no notice of the title bond, the deed passed tlie whole estate, and if he had notice, as the bond was fraudulent, he could stand on the sheriff’s deed.

But Hiney represents all the title that passed by the sheriff’s deed and the conveyance from John Herrington to Beal, and he is therefore the real defendant, who must be affected with notice of the plaintiffs’ equities before they can recover in any aspect of the case. Hiney claimed the land as a purchaser under a deed of trust made by Beal to the trustee of Jefferson county, dated 21st June, 1855, and under a deed made by Beal to him for his equity of redemption, dated 16th November, 1855 ; and the only evidence to charge notice on him was the suit which the plaintiff had brought and dismissed against John Herrington and Beal. It appears that the petition in that suit was filed October 10th, 1855, on which the summons did not issue until the 21st of March, 1855, and was dismissed on the 29th May following. There was no proof that Hiney had actual notice, but it was sought to charge him as a purchaser pendente lite. Though the petition was filed in October, there was no Us pendens as to strangers until the process was served, which was several months afterwards. (Murray v. Ballou, 1 John. Ch. 576; Lyle v. Bradford, 7 Mon. 116; 2 Sug. on Vend. 544.) And that suit having been discontinued, it did not affect Hiney in this suit, for the policy, on which the doctrine of lis pendens is founded, is to give full effect to the judgment which might be rendered in the suit depending at the time of the purchase ; and the pendency of a suit at the time of purchase, which is subsequently dismissed, will not affect the purchaser with notice in a new suit. (Newman v. Chapman, 2 Rand. 103; Watson v. Wilson, 2 Dana, 408.)

Judge Napton concurring,

the judgment will be affirmed.


text:
    Patterson et al., Respondents, v. Judd, Appellant.
    1. A. agreed to deliver to B. at a specified place on the Mississippi river “ two rafts of pine logs containing each from 350,000 to 400,000 feet, more or less — one raft to he of the first run in the spring, and the other as soon thereafter as possible (want of sufficient water and dangers of navigation excepted); and in case of a loss of a portion of said rafts the loss to be deducted pro rata as per number of logs contained in the whole.” A. brought to the place specified a raft containing 419,226 feet; he cut off and delivered to B. 323,385 feet of this raft, B. demanding the whole raft. Held, in a suit by B. to recover damages of A. for his refusal to deliver the whole raft, 1st, that B. was not entitled under the contract to demand the whole raft of 419.226 feet, the words “ more or less” not covering so great an excess as 19.226 feet; that the delivery of a raft containing any quantity of logs between 350,000 and 400,000 feet would be a legal compliance with the contract ; 2d, that it was competent for A. to show that when the raft in question started from his boom in Minnesota, it contained, according to the St. Croix scale and measurement, 486,402 feet of logs, and that 67,176 feet were lost, by reason of want of water and dangers of navigation, in running it to its place of destination.

      Appeal from St. Louis Cowt of Gommon Pleas.

    This was an action to recover damages for an alleged breach of the following agreement: “ Articles of agreement between Judd, Walker & Co. and Patterson & Ferguson, made and entered into at St. Louis this twenty-first day of January, A. D. 1856, witnesseth, that for and in consideration of the sum of sixteen dollars per thousand feet according to the St. Croix scale and measurement — which scale bill shall exhibit the number of pieces, logs and feet with their original marks — payable one-third in cash, one-third in • their negotiable note at three months, and one-tliird in their negotiable note at five months from delivery — Judd, Walker & Co. agree to deliver to the aforesaid Patterson & Ferguson, in the eddy at or above Bremen, two rafts of pine logs containing each from 350 to 400 M feet, more or less — one raft to be of the first run in the spring, and the other as soon thereafter as possible (want of sufficient water and dangers of navigation excepted) — as large a portion of said sticks to be eighteen, feet oí’ more in length as can be conveniently got in rafting from boom; and in case of loss of a portion of said rafts, the loss to be deducted pro rata as per number of logs contained in the whole ; and the said Patterson & Ferguson are to pay the discount on the first notes of three months. [Signed] Patterson & Ferguson (seal), Judd, Walker & Co. (seal).”
    The plaintiffs alleged that in the month of November, 1856, a raft of pine logs containing 419,226 feet, belonging to Judd, Walker & Co., and of the first run in the spring of that year, arrived in the eddy at or above Premen; that of this raft said Judd, Walker & Co. cut off and delivered to plaintiffs only 323,385 feet, refusing, although plaintiffs demanded the whole of said raft, to deliver more than said amount.
    The defendant in his answer admitted the execution of the above contract; and averred that, during the first run in the spring of 1856, he started from his boom in Minnesota a raft of pine logs for the plaintiffs according to the terms of the contract, but that by reason of want of water and dangers of navigation this raft did not reach Bremen that year; that during the same first run in 1856 he started from his boom another raft of pine logs to be run to Bremen, which was a larger raft than the plaintiffs by the contract were entitled to and was not intended for them, and containing by the St. Croix scale 486,402 feet; that this is the same raft mentioned in the petition ; that it arrived at Bremen in November, 1856, but had lost in navigation 67,176 feet of logs, so that when it reached Bremen it contained 419,226 feet; that from this raft, as by the original scale bill, he delivered to tain plaintiffs a raft, for the first raft under said contract, coning 375,204 feet; that the pro rata of the whole loss in navigation as per number of logs contained in the whole raft chargeable upon the quantity so delivered to the plaintiffs was 51,819 feet, which share of the whole loss defendant deducted from the raft so delivered, as lie was entitled to do by the terms of the contract; wherefore the said raft delivered was reduced to 323,385 feet; that the raft delivered was fully equal to the requirements of the contract.
    At the trial the defendant offered to prove the facts as set up in this answer. The court ruled out the testimony as incompetent, and instructed the jury as follows : “ The defendants were bound under their contract to deliver to the plaintiffs the whole of the logs contained in the raft which arrived at Bremen.”

      A. N. Crane, for appellant.
    I. The court erred in refusing to admit evidence to prove the size of the raft when it started and the loss of logs sustained in running it to Bremen. The plain intent of the parties to the contract was that as many logs should be started as plaintiffs were by the contract entitled to; but if unavoidable loss occurred in running them, this loss should bo considered in estimating the quantity delivered. By distributing the loss pro rata, we have, for the amount delivered under the contract, 375,204 feet, which is as many feet of logs as the contract entitled the plaintiffs to for one raft.
    II. The instruction given to the jury was erroneous. The contract should be construed precisely as if the words “more or less” did not occur in it; for the manifest intention of the parties, by using the two numbers, was to give the words “ from” and “ to” the sense of between, and thus to fix the size of the raft between 350,000 and 400,000 feet; if the words “ more or less” conflict with the intention so manifested, or are in any sense opposed to the definite clause, they must give way and be rejected. The subject matter of the contract is not a particular raft but a number of feet of logs. The parties buy and sell by the thousand feet and not by the raft. The raft in question had no existence until long after the contract was made. This particular raft was not contemplated by the parties ; indeed no particular raft was. The rafts might have been run in whatever size the condition of the river made necessary. A large raft might be divided into several small ones, or several smaller rafts might be united into one large raft. If the words “ more or less” should not be rejected, they should be applied distributively so as to make the clause as to quantity read : “ Containing each from 350,-000 feet or more, to 400,000 feet or less.” At most, plaintiffs were not entitled to more than 400,000 feet of the raft that arrived at Bremen. The words “ more or less” would not cover so great an excess as 19,226 feet. (See Deisborough v. Nelson, 3 Johns. Cas. 81; White v. Tancray, 9 Leigh, 947; Small v. Quincy, 4 Greenl. 497; Blaney v. Rice, 20 Pick. 62; Cross v. Eglin, 2 Barn. & Adol. 106.)

      S. T. & A. D. Glover, for respondents.
    I. The plaintiffs were entitled to the whole raft that reached Bremen. If this raft had contained 900,000 feet, plaintiffs would have been entitled to the whole of it. If it had reached Bremen with only 50,000 feet, plaintiffs could have demanded no more. The attempt to show that a raft containing 375,204 feet was delivered by distributing a “pro rata” loss, is futile. The expression “pro rata” does not apply to one raft at all. If it has any meaning in the connection in which it is used, it must refer to the two rafts. The instruction given was correct.
   Scott, Judge,

delivered the opinion of the court.

The court, in rejecting the evidence offered by the defendant, seems to have discarded from its consideration that part of the contract in which it is provided that “ in cases of loss of a portion of said rafts, the loss to be deducted pro rata as per number of logs contained in the whole.” The evidence, if admitted, might have thrown some light on this clause, which it must be admitted is rather obscure. The defendant, having agreed to deliver some logs at a fixed price, may have preferred to risk the market price for others, and would therefore send out a larger raft than would fill his contract with the plaintiffs. If this raft was lessened in bringing it to market, then, the loss would be deducted rata-bly from the portion reserved or intended for the defendant and the portion to which the plaintiff would oe entitled. We see no other way of interpreting the contract. The construction contended for by the plaintiffs, that the intention of the parties was that any loss that might happen in bringing down the rafts was to be divided ratably between the two rafts, effects nothing. What object is obtained by dividing the loss between the two rafts so far as cither the plaintiffs or defendant are concerned ? If both rafts were to be received notwithstanding any diminution they might sustain, where was the motive to any such clause in the contract ? In the absence of the evidence offered by the defendant, any interpretation we may put upon the contract must be more or less conjectural, and the evidence, when received, may show that in this matter we are in error.

In construing this contract, we see no reason for departing from the usual signification of the words “ more or less,” because the rafts are described as containing each from 350 to 400,000 feet, more or less. These terms apply to the two extremes, although their force is necessarily modified by the circumstance that any quantity of logs between '350 and 400,000 feet would be a legal compliance with the contract. These words would ordinarily cover a small excess or deficiency proportioned to the amount named, so that the parties would not be subjected to the inconvenience of a small excess in complying, or a small deficiency in not complying, with a contract, by leaving the excess on the hands of the vendor in the one event, or refusing to take the amount offered by reason of the deficiency on the other. The term “more” would not compel a party to take an indefinite quantity, nor would the term “ less” force him to take a quantity bearing no proportion to that stipulated. (Cross v. Eglin, 2 Barn. & Adol. 106.) In my opinion, nineteen thousand feet is a greater excess than the plaintiffs would have been bound to take; consequently, the defendant was not bound to deliver that quantity.

It will be observed that the evidence offered by the defendant and l-ejected by the coxxx’t was called for by an express reference to it in the contract.

Reversed and remanded.

Napton, Judge, concurs in reversing the judgment; Richardson, Judge, not sitting, having been of counsel.


author: Napton, Judge,

text:
    Fath, Respondent, v. Meyers’ Administrator, Appellant.
    1. A., a blacksmith, sued B.’s administrator to recover a blacksmithing account of five years’ standing, amounting altogether during that time to $183.25, the balance claimed after allowing credits being $97.25. Held, 1st, that in order to account for the non-production of the plaintiif’s books, it might be shown that the books were kept by the plaintiff himself; 2d, that, some of the particular items charged being proved, it was competent for the plaintiff to show, in support of his general account, that B. had all Ills blacksmithing done at plaintiff’s shop; that B.’s farm was of a particular extent, and that he had thereon a particular number of horses and wagons, and testimony of a like character.

      Appeal from Perry Circuit Court.

    This was an application to the county court of Perry county for an allowance of an account in favor of the plaintiff against the estate of John Meyers, deceased. On appeal to the circuit coxirt, judgment was rendered in behalf of plaintiff. No instructions were asked or given. It was not shown that the plaintiff supported his claim by his affidavit in the cii'cuit court.

      Noell, for appellant.
    I. The circuit court erred in permitting evidence to be introduced as to the correctness with which plaintiff’s books were kept. Connecting that evidence with general statements of other witnesses to the effect that Meyers was in the habit of having his blacksmith’s work done at the plaintiff’s shop, and also with evidence as to the extent of Meyers’ farm, and the number of teams he worked, plaintiff was permitted to prove his account as a whole without proving the items. (1 Greenl. Ev. 117.) The affidavit required by law does not appear to have been made. The verdict was clearly against the evidence.

      T. C. Johnson, for respondent.
    I. The evidence objected to was admissible. The presumption is that the county court did its duty in requiring an affidavit of plaintiff. If it did not, it devolves on defendant to show that. It is too late to insist on this point.
   Napton, Judge,

delivered the opinion of the court.

This action was brought to recover a blacksmith’s account of some five 'years’ standing, amounting altogether during that period to $183.25, and with credits to the amount of $86 — leaving a balance claimed of $97.25. The principal question presented here is as to the admissibility of the evidence which the circuit court permitted to go to the jury and upon which the verdict was rendered. This evidence was, that the plaintiff kept his own books and kept them generally correctly; that Meyers had all his blacksmith’s work done at plaintiff’s shop; that Meyers’ farm was of a particular extent; that he employed a particular number of horses and wagons; and other testimony of this character, which, together with positive proof of various items identified particularly by different witnesses, went to the jury.

It is very certain that, if testimony of this character is not allowed, very few of such accounts can be proved in this State. Many farmers own shops entirely under the superintendence of a negro blacksmith. The business is one which, in the country and in small interior villages, does not justify the employment of a clerk, and the items in such accounts are frequently so trivial that it would be unreasonable to expect positive and direct proof. These circumstances will not, it is true, authorize the courts to disregard any settled rule of evidence; but the testimony in this case is certainly competent, and of its pertinency the jury could judge. A jury of practical men would not be likely to go much out of the way in arriving at the probable amount of a man’s blacksmith account when they are informed of the extent of his operations in which such work would be required. We do not say that such evidence would in all cases be sufficient or even in all cases proper, but, taken in connection with the other proof in this case, it was legitimate evidence for the consideration of the jury.

The plaintiff’s books of account were not offered in evidence. The testimony as to how they were kept was necessary to explain and account to the jury for their absence. If they had been kept by a clerk, it might have been expected that he should have been called and the books produced. As our practice does not allow their introduction when kept by the plaintiff, proof of this fact was material and pertinent.

As to the weight of evidence in this case, it is not our province to interfere; but if we were to pass any opinion upon the point, we could not say that $183 was an unreasonable blacksmith’s account for five years for a man in Meyers’ circumstances.

It does not appear that the preliminary oath, required by the statute to authorize allowances against an estate in the county court, was called for in the trial of this case, or that any objection was made on this ground. After a plaintiff has established his demand, contested as this was, by the verdict of a jury and the judgment of the circuit court thereon, it would seem folly to send the case back for the plaintiff’s oath to be superadded.

The other judges concurring, the judgment is affirmed.


author: Scott, Judge, Richardson, Judge.

text:
    Hull, Respondent, v. Lyon et al., Appellants.
    1. Communications made to an attorney at law as such are privileged, and the attorney can not be permitted to testify concerning them without the consent of the client. This rule applies to the case where two persons, having hostile interests, consult the same attorney, at the same time, with respect to the matter in dispute, and one of such parties calls upon the attorney to testify with respect to the declarations and admissions made by the other at the consultation.
    2. Whether a communication is a privileged one is a question for the court.
    3. A mortgagee is not hound to notice the partition of the mortgaged premises in a suit instituted for that purpose. If, however, in a partition suit, in which he is a party defendant in right of his wife, he should set up his mortgage, and an issue joined with respect to the existence of the mortgage should he determined against him, he would, it seems, be bound by the judgment. If no more appears from the record than that the mortgage was set up by the mortgagee, that issue was taken as to its existence, and that no notice was taken of the mortgage in the interlocutory or final judgments, the record would furnish only prima facie evidence that the question of the existence of the mortgage was passed upon; it might be shown by parol evidence that the question was never actually submitted to or passed upon by the court.
    4. Where, during the pending of a suit to foreclose a mortgage, third persons become interested in the premises by purchase, it is not necessary, in order to authorize a decree against them in respect of the interest acquired by them, to make them parties to the suit; they may be made defendants, on their own motion, under the sixth section of the act concerning mortgages, (ft. C. 1855, p. 1089.)

      Appeal from St. Louis Circuit Court.

    This was a suit commenced by Josepli S. Hull on the 8th of November, 1852, to foreclose a deed of trust executed April 17, 1841, by Robert N. Moore and Alexander Moore, to secure the Bank of Missouri the payment of a note drawn by Robert N. Moore and endorsed by Alexander Moore and discounted by said bank, and to secure the payment of any note that might be given in renewal of the same. The petition stated that after several renewals of the original note, Robert N. Moore executed his note for $1,843.34, dated December 23, 1842, which was endorsed by Alexander Moore and by the plaintiff Joseph S. Hull, and discounted by the Bank of Missouri in renewal of the first note ; that this note was not paid at maturity and was protested; that the plaintiff Hull, at the request of Robert N. Moore, paid said note to the bank on the 12th of November, 1848, and received an assignment of the deed of trust on the 15th of November, 1848. The land conveyed by said deed of trust was the undivided two-thirds of a tract of three by forty arpens. The petition further stated that Eobert N. Moore was dead, having devised his property to his widow Anna M. Moore, who afterwards married J ames M. Lyon; that Hugh A. Garland was executor of said Eobert N. Moore; that Alexander Moore died, leaving as his heirs Elizabeth Hull, said Eobert N. Moore, Julia N. Moore and Elizabeth Moore; that Elizabeth Moore was also dead; that Julia N. Moore was an infant; that by order of the probate court the title and estate of Eobert N. Moore in the premises had been sold and that J ames M. Lyon became the purchaser, but had not paid the purchase money and a deed had not been made.
    The parties to this suit originally were James M. Lyon and Anna M. his wife, Julia N. Moore, and Hugh A. Garland, executor of Eobert N. Moore. Afterwards Julia N. Moore marrying David C. Hall and dying leaving a daughter, said Hall and daughter were made parties. Garland also died and the administrators de bonis non of Eobert N. Moore and of Alexander Moore were made parties. The defendants put in issue the allegations of the petition, alleging that Eobert N. Moore had himself paid the note described in the petition. The court submitted to a jury an issue whether the plaintiff had paid the note to the bank with his own money. Upon the trial of this issue, Judge Lord was called as a witness in behalf of the plaintiff. He testified that both Hull, the plaintiff, and Eobert N. Moore came to the office of Leslie & Lord for advice about this note and deed of trust and the transfer to plaintiff. He was required, against the objection of the defendants, to testify concerning statements made by Moore at that interview. The jury found the issue for the plaintiff
    The court, in its finding, found substantially the execution of the deed of trust and note as alleged ; that plaintiff paid the note at the request of E. M. Moore and took an assignment of the note and deed of trust; that at the institution of this suit he was the holder thereof for value. After the death of said Eobert N. Moore, and before the institution of this suit, on the 17th of November, 1851, the right, title and interest of Robert N. Moore in said tract was sold, under the order of the probate court, to James M. Lyon. Lyon not being able to comply with the conditions of sale, John S. McCune and Peter L. YanDeventer were substituted and received a deed from Hugh A. Garland, dated September 21, 1853. It also appears that at the October term, 1853, of the St. Louis land court, Julia N. Moore instituted a suit in partition against Joseph S. Hull and his wife Elizabeth, James M. Lyon and Anna M. his wife, Peter L. YanDeven-ter, John S. McCune and George W. Putnam; that in this suit partition was made according to the respective rights of the parties. The commissioners assigned to McCune and YanDeventer, for the interest acquired by them under the above deed of the executor of Robert N. Moore, certain lots designated as lots numbered 1, 2, 4, 5 and 6. McCune and YanDeventer were also required to pay said Elizabeth Hull the sum of $300 to equalize the difference in the value of the lots assigned to said McCune and YanDeventer and those assigned to said Elizabeth Hull. This partition was made at the October term, 1855, of the St. Louis land court. In his answer in this suit, said Hull set up his claim under the deed of trust. McCune and YanDeventer denied the existence of this claim. Judgment for partition was given without reference to it. It also appeared from the finding that, after said petition was made, said Elizabeth Hull died leaving her surviving two children. Joseph S. Hull instituted proceedings against his said children for partition of that part of said three by forty arpent tract that had been assigned to said Elizabeth Hull. Such proceedings were had in this suit that partition was made, and under the judgment of the court the land was sold and the plaintiff became the purchaser.
    The court ordered a foreclosure, in behalf of plaintiff, of the deed of trust in respect to those portions of the three by forty arpent tract that had been assigned to McCune and YanDeventer in the partition suit above mentioned, and ordered the sale of said lots numbered 1, 2, 4, 5 and 6.

      Whittelsey, for appellants.
    I. The court erred in permitting Judge Lord to testify. The communications made to him were privileged although the same attorney was consulted by both parties. (1 Greenl. Ev. § 241, 240; 2 Stark. Ev. 229; Cromach v. Heathcote, 2 B. & B. 4; Parker v. Carter, 4 Munf. 273; Wilson v. Troup, 7 Johns. Ch. 25; Doe v. Seaton, 2 Ad. & El. 171; Doe v. Watkins, 3 Bing., N. C., 421.)
    II. Hull having failed to establish his mortgage in the partition suit, the question became res adjudicata. (2 Johns. 210 ; 12 id. 313 ; 2 Conn. 435 ; 5 Wend. 245 ; 3 Johns. 220 ; 7 Cranch, 557 ; 5 Hill, 114; 9 Cow. 271; 1 Watts, 149 ; 8 Mo. 120.) The finding was erroneous in declaring that Mc-Cune and YanDeventer (who are not parties to the suit) purchased after the commencement of this suit. As they took the place of James M. Lyon, their purchase goes back to the date of his purchase, September 18, 1851. The court also erred in not declaring what were the interests of the parties as established in the land court in the partition of Julia N. Moore v. Hull and others. The court also erred in finding that the interest set off in the partition suit to Mc-Cune and YanDeventer was that which Robert N. Moore had in the whole tract at the date of the deed of trust. One-ninth descended from Alexander Moore ; four-ninths of said tract belonged to R. N. Moore at the time of his death.
    III. Plaintiff submitted to a partition of these lands in fee, and is estopped from destroying - the effects of this partition by selling the property, part of which his wife inherited and which he now holds by purchase at a partition sale based upon the previous partition. A proper sale under the deed of trust would divest the title of two-thirds of the land and thus enforce a new partition. (6 Yerm. 395; Phelan v. Kelly, 2 Wend. 389; Jackson v. Streeter, 5 Cow. 529; Jackson v. Himnan, 10 Johns. 292; Yanhorn v. Eonda, 5 Johns. Ch. 406 ; Picot v. Page, 2.6 Mo. 398 ; 3 Dana, 326.) The judgment is also erroneous in that it directs the shares assigned to McOune and YanDeventer to bo sold separately, when they were not before the court, and consequently the court acted without having the proper parties before it. McOune and YanDeventer, in the partition, paid the plaintiff money to equalize the shares; yet this land for which the plaintiff has received their money is to be sold, while the share that plaintiff’s wife received through Alexander Moore is unsold.
    IY The only decree the court was authorized to make was that the equity of redemption in the whole property mortgaged be foreclosed and the property sold to pay the mortgage debt. Lyon bought subject only to legal claims and encumbrances, and not to any unknown equities that might have existed between Robert N. Moore and Alexander Moore. The land of Alexander was subject to the encumbrance for the whole debt as well as the share of Robert N. The court threw the whole burden upon the one-tliird of Robert N. Moore and the one-ninth that came through Alexander Moore. The subsequently acquired one-ninth was not subject to the mortgage except through the conveyance made by Alexander Moore. Lyon and McOune and VanDeventer under him were purchasers for value in good faith and without notice of any equities existing between R. N. and Alexander Moore to throw the whole burden on Robert’s share.

      Krum & Harding, for respondents.
    I. The testimony of Judge Lord was competent. His testimony was not within the rule of privileged communications.
    II. The court properly subjected the interest allotted to McCune and YanDeventer to the satisfaction of the deed of trust. The parties who purchased Robert N. and Alexander Moore’s undivided interest, or the interest of either, in the mortgaged premises, took it cum onere. When this interest was set apart in the partition suit the encumbrance followed it. The finding was sufficient to sustain the judgment. It was not necessary that McCune and YanDeventer should be made parties to the suit.
   Scott, Judge,

delivered the opinion of the court.

The act concerning witnesses prescribes that an attorney shall be incompetent to testify concerning any communication made to him by his client in that relation or his advice thereon, without the consent of such client. (R. C. 1855, p. 1578.) Though Hull, the plaintiff, had an interest with Moore in the matter about which the common attorney was consulted, he had no right to any communications Moore might have made. The aim of the evidence was to affect Moore and those claiming under him. Any information Moore may have communicated, or any facts he may have stated, or admissions he may have made, to his attorney, can not be disclosed at the instance of one who had a hostile interest in the subject of the consultation, although he attended’it and employed the same attorney to advise as to his rights and interests in the matter about which they consulted. The consent of both parties was necessary to make the attorney a competent witness. Whether a communication is a privileged one is a question for the court.

We do not see in what way the defendants were affected by the omission of the court to declare the interests of the parties to the land as established in the partition suit of J. N. Moore v. Hull et al. If they were subjected to the payment of no more of the mortgaged debt than their interest in the land was subject to, they have no cause of complaint.

In the partition suit referred to, Hull set up the mortgage and prayed the benefit of it. Hull was not bound to do this, and his failure to do it would not have affected his rights. But notwithstanding this, if he did set up his mortgage and it was determined against him, he, it seems, would be bound by the judgment. (Thompson v. Wineland, 11 Mo. 243.) A mortgagee is not compelled to notice the partition of premises on which he has a mortgage, only so far as in a proceeding to foreclose be must see that the proper parties are brought before the court. McCune denied the existence of the mortgage debt, and nothing more is disclosed in relation to the matter. Under such circumstances, the record at most would furnish only prima facie evidence that the matter was passed upon by the court. It would be competent to show by parol evidence that, although stated in the pleadings, yet in fact the matter never was submitted to the determination of the court. (State v. Morton, 18 Mo. 53.) But the difficulty in relation to this is .that McCune is no party to this suit.. This is insisted on by him in this court. How then can he have the benefit of an estoppel, created by a judgment in one suit, in another suit to which he is no party ?

The interest of McCune and YanDeventer in this litigation arose at the time they made the contract to purchase Lyon’s interest. Whatever benefit may be derived from the doctrine of relation as between the parties to the agreement to purchase, in determining the question whether they were proper parties to this suit we can only look at the date of the contract by which they became interested.

We do not conceive that there is any thing in the point that Hull is estopped by the judgment in partition from asserting his right under the mortgage. Owners of the equity, of redemption may have partition among themselves, but mortgage and judgment creditors can not be compelled to join in it. (Wotten v. Copeland, 7 Johns. Ch. 140; Sebring v. Mersereau, Hopkins, 501.) Our statute is silent as to making mortgagees parties to a proceeding for partition.

If McCune and VanDeventer are not parties to this suit, and should have been made so, they will not be affected by it, and they have no right to appear here and raise objections. It is remarkable they did not have themselves made parties, as they might have done under the sixth section of the act concerning mortgages.

The decree of the court below is inconsistent with itself, as it subjects the interest of Alexander Moore in those claiming under R. N. Moore to sale, and exempts from contribution that portion of Alexander Moore’s interest which is in the plaintiff. The court does not find that there was any equity existing as between R. N. and Alexander Moore, which would subject R. N. Moore’s interest alone to the satisfaction of the entire debt as against a purchaser of R. N. Moore’s interest. The mortgage subjected the entire interest of R. N. and A. Moore to the payment of the debt. Why should a purchaser of R. N. Moore’s interest be compelled to pay the entire debt ? The facts in relation to this matter are not found, nor is any thing said in relation to notice of any equity. It does not appear that the decree is based on the circumstance that Alexander Moore was the endorser of the note — a matter about which no opinion is ventured, as it was not discussed in the argument.

If the interest which R. N. Moore originally mortgaged is alone liable for the mortgage debt, it is a matter of no importance in this suit that interests subsequently acquired by those who hold Moore’s original interest are likewise subjected to the payment of the mortgage debt, as it appears that the original interest itself greatly exceeds in value the amount of that debt. If the original interest had been insufficient to pay the debt, the injustice of subjecting the after acquired interest would be apparent. The error is entirely a formal one, not at all affecting the rights of the parties. Reversed and remanded,

the other judges concurring.

Richardson, Judge.

In my opinion, the form of the note prima facie indicated the character of the relation of the parties to it, and if R. N. Moore was the principal debtor it would not be inequitable to charge the whole debt on his interest. But if any portion of A. Moore’s interest is subjected to the mortgage, the whole interest should be, and the burden ought not to be cast on McCune and VanDeventer, who own only a small part of it. The judgment is inconsistent with the theory on which the cause was decided; and as there is nothing in the record to show the value of the interest of McCune and VanDeventer acquired, from R. N. Moore’s estate, which he owned at the date of the mortgage, the judgment should be reversed because it is not confined to that interest. I give no opinion on the other points noticed in the opinion of the majority of the court.


text:
    Blair, Respondent, v. Marks et al., Appellants.
    1. The fifty-sixth, section of the act of July 4, 1807, (1 Terr. Laws, p. 138,) authorized' the sale, under the order of the general court, of an intestate’s estate for the payment of his debts, although he left no lawful issue.
    2. The administrator was, in the case of such a sale, authorized to make a deed to the purchaser.-
    3. After the lapse of forty or fifty years from the date of such a sale, proof of the advertisements and other prerequisites of a legal sale could not be insisted on.
    4. Where a party’s acts are given in evidence, he may give in evidence, in rebuttal, other acts which are a part of, or connected with and explanatory of, those previously used against him.

      Appeal from St. Louis Circuit Cowt.

    This was an action of ejectment to recover a piece of ground at the south-east corner of Main and Bates streets, in the city of St. Louis. Both parties claimed title under Pierre Chouteau. The plaintiff, for the origin of his title, relied on a deed made by Chouteau to Merriwether Lewis in 1810. The defendants deduced title under a deed from Chouteau to Frederick Bates in 1815. The great question in dispute was the true position of the division line between the Lewis and Bates tracts. This question can be fully understood' by examining the report of the case of Evans v. Greene, 21 Mo. 170, and the diagrams contained in that report. If the location of the Lewis tract should be established as marked out by the red lines of the diagram No. 1, the land in dispute would be brought within the Lewis tract.

      The court gaye the following instruction to the jury of its own motion : “ The deed of Chouteau to Lewis having been made on the 3d of August, 1808, the jury must regard Chouteau’s claim as it existed at that time; and if his southwest corner was then understood by him and Lewis to be westward of his south-west corner as it was subsequently fixed by the United States survey, the jury must take it to have been at the place where it was then understood by the parties to be, in ascertaining what land he conveyed to Lewis.”
    The following instructions were given at the instance of the defendants: “ 1. The court instructs the jury that the plaintiff claims title under Merriwether Lewis, and if the land in controversy lies outside of the tract conveyed by Chouteau to Lewis, the plaintiff can not recover in this action. 2. If the jury find from the evidence that in 1808 there was known or existed a line which would answer to the description given in the deed from Chouteau of 1 the line separating the town lots from the lots which have been granted for cultivation,’ then the point in Roy’s upper line, which was the beginning point in the description of the Lewis tract, is to be found at the distance of forty-five perches from that separating line, whether the south-west corner of Chouteau’s survey be in that line or not. 3. If the jury believe that Risdon H. Price located his tract acquired from Lewis’ administrator in such manner that the south-east corner thereof was west of Main street, they will regard such location by Price as a practical construction by him of the deeds under which he claimed title; and, if the location of that tract is otherwise not ascertainable, that practical location will be deemed to be the true one as against Price and those claiming under him. 4. In ascertaining the position of a tract of land conveyed by deed, the highest, and as a general rule the controlling, proof on the subject is the description of its position given by the parties themselves in the deed; and in , determining what the parties meant by that description the jury will pay greater regard to calls for known or ascertained lines or corners than to calls for the courses of lines and their lengths. 5. If the jury find that Price, while the proprietor of the Lewis tract, in 1817, and Bates, his adjoining proprietor, caused the eastern line of said tract to be established, fixing the same west of the eastern line of the present Main street; that, contemporaneously with such establishment of the eastern line of the Lewis tract, Bates, Smith and Lisa, being proprietors of the adjoining land, with the knowledge and acquiescence of Price, laid out the land east of Main street into an addition to the town, subdividing the same into lots and selling said lots from time to time to different persons; that for more than fourteen years after the laying out of such addition neither Price nor any one under him laid claim to any part of such addition as being within the Lewis tract; and that the land now in controversy is part of such addition, and is held by the defendant under said Bates, Smith and Lisa, then the plaintiff claiming under Price can not recover in this action. 6. The jury are instructed, that, although in the description contained in the deed from Chouteau to Lewis the quantity of area mentioned is of least authority as a descriptive call, yet if the jury are in doubt as to the proper location of the tract by all the other calls, they may resort to the call for quantity to assist them in determining the proper location of the tract.”
    The following were given on the motion of the plaintiff: “ 1. If the premises in question are included in the sheriff’s deed to Darby, and in Darby’s deed to Evans, and Evans’ deed to Greene, and his to the plaintiff, and said deeds are genuine, and the title to said premises was in Risdon II. Price at the date of the judgment, execution and levy described in said sheriff’s deed, then the plaintiff is entitled to recover, unless the jury should find the facts to be as set forth in instruction No. 5. The rules of location are, 1st, natural boundaries; 2d, artificial marks; 3d, adjacent boundaries ; 4th, course and distance; but though these are general rules, they are not inflexible; but an inferior means of location. may control a higher, wlien it is plain there is a mistake. The evidences of location are resorted to in their order, unless it appear from other satisfactory evidence that there is a mistake. 2. A diagram or plat annexed to a deed, and referred to in said deed as describing the premises therein mentioned, is a part of said deed, and must have the same force as if the description on said plat was contained in said deed. 3. The jury are instructed that they are not to regard the eastern line of the land, as conveyed by Post to Bates by deed given in evidence by the defendants, as evidence showing the location by Price of the lines of the Lewis land, unless they find from the evidence that said line was adopted by Price. 4. If the jury find that the tract conveyed by Price to O’Hara in 1820 can not be located in the south-east corner of the Lewis tract without disregarding the courses and bearings of the lines of said tract as described in the plat accompanying the deed from Price to O’Hara, nor without violating the northern boundary and western boundary as contained in said deed, and the true position of the mounds as then known, they will disregard the words of the general description contained in said deed from Price to O’Hara as follows: “ On the south-east corner of the said tract of 30 arpens and 93 perches,” and they may locate the said tract according to the boundaries and remaining descriptions in said deed, and the natural objects defined on the plats in evidence.”
    The court refused the following instructions asked by defendants : “1. There is no evidence before the jury proving or tending to prove that the parties to the deed made by Chouteau to Lewis in 1808 intended or understood that the land thereby conveyed was within any particular concession, survey or tract of land known as one single tract. 2. The description contained in the deed from the administrator of Lewis to Price of the land thereby conveyed, is evidence against Price and those claiming under him, including the plaintiff, that the land acquired by Lewis from Chouteau was bounded westerly by the forty arpent lots. 3. The deed of Chouteau to Lewis having been made on the 3d August, 1808, the jury must regard Chouteau’s claim as it existed at that time; and if his south-west corner was then under stood by him and Lewis to be westward of his south-west corner as it was subsequently fixed by the United States survey, the jury must take it to have been at the place where he then understood it to be in ascertaining what land he conveyed to Lewis.”
    The court also refused instructions asked by the plaintiff.

      Field, E. Bates and B. Bates, for appellants.

      Dick, for respondent.
   Napton, Judge,

delivered the opinion of the court.

The validity of the title in dispute in this case depends mainly upon questions of fact. The controversy turns principally upon the ascertainment of the true location of the south-west corner of the tract conveyed by Chouteau to Merriwether Lewis. Whether this corner was fixed by Chouteau in what is now known to be the eastern line of the common field lots, was a question of fact determined by the jury in this case under instructions not complained of. The jury have found that Lewis’ south-west corner was not in this line, but some two hundred and twenty feet east of it. Assuming that the Lewis tract is a part of the Chouteau concession, and that the south-west corner of the two tracts is identical, the question still remained whether the corner established by Brown, in 1817, was the same established by Soulard in 1803 ; for it is clear that Chouteau’s conveyance to Lewis, in 1809, by metes and bounds and fixed monuments, can not be controlled by a survey made in 1817. The landmark set up by Soulard at the south-west corner, in 1803, is gone. Hence a mass of testimony was introduced on either side to establish this corner, the plaintiff maintaining that the United States survey of Brown, in 1817, was correct, and established the south-west corner of the survey precisely where Soulard had previously located it, and the defendant insisting that Brown’s corner had been placed at least fifty or sixty feet east of the old Soulard corner. If the latter supposition was true, the defendant was entitled to a verdict, as it appears that a removal of Brown’s survey fifty or sixty feet westwardly would leave the defendants’ lots outside of the Lewis tract. If the plaintiff’s view prevailed, the Lewis title, under which he claimed, would cover the land in dispute. Upon this question of fact, no opinion of this court will be expected, or would be material. Our duty is limited to see that this question was tried under instructions not unfavorable to the party who lost the verdict, and that no illegal evidence was introduced, and no legal evidence excluded.

One of the first links in the chain of the plaintiff’s title is a deed from the administrator of Merriwether Lewis, in 1811; and it is insisted that this deed was unauthorized by law; that the sale of which it was evidence was unwarranted by the statute; and that the proofs, which would alone justify the admission of such a deed, supposing the law to have warranted both the sale and the deed, are wanting. The act of 1807, under which this proceeding was had, is as follows (Terr. Laws, p. 138) : If any person shall die intestate, being, owner of lands and tenements within this territory at the time of his or her death, and leave lawful issue, but not sufficient personal estate and slaves to pay his just debts and maintain his children, in such case it shall and may be lawful for the administrator to borrow or mortgage, &c., or to sell and convey such part or parts of said lands and tenements as the general court shall in either case, from time to time, think fit to allow, &c., for defraying the debts, maintenance of the children,” &c., &c.

It is said that it nowhere appears upon the record of the proceedings of the general court, on the application of Hemp-stead, administrator of Lewis, to sell real estate of the de-' ceased for the payment of his debts, that he died leaving lawful issue, and therefore that the court had no power to order a sale. This is not our construction of the law. No motive could be suggested that could possibly induce the legislature to authorize a sale of the lands of a decedent to pay his debts when he left issue, and deny the power when he left none. To give the power in the former case, implies its existence in the latter. If the legislature would permit the lands of a decedent to be sold although he left children, a fortiori would they allow this to be done when he died childless; and this is doubtless the proper construction of the act, although it must be admitted to be expressed in a peculiar and rather inartificial manner. Besides, a contemporaneous construction of this law by the highest judicial tribunal in the territory, made nearly fifty years ago, would hardly be disturbed by this court now, whatever views might be entertained of its true interpretation. But we entertain no doubt that the construction given to the act by the general court of the territory was the correct one.

The power of the administrator to make a deed is implied in the power to sell. Indeed, the language of the statute is to “ sell and convey,” thereby giving the administrator an express authority to make a deed.

The report of Hempstead, administrator of Lewis, to the general court, of his sale under their order, is suifici^ deuce that all the prerequisites to a sale required of been complied with. After a lapse of forty or fiS proof of the advertisements, which the law requirec&ti^ court ordered, would hardly be expected or required.

There was no error in permitting the plaintiff t^ evidence the deed from O’Hara to Price, and the a'6 nying plat. The defendant had given in evidence the deec from Price to O’Hara, obviously with a view to show how Price, under whom plaintiff claimed, had practically located the O’Hara tract. This testimony was legitimate and was admitted, but the admission of this deed from Price to O’Hara undoubtedly authorized the plaintiff to explain Price’s conduct in relation to the location of that tract. The testimony was strictly in rebuttal and explanatory of what had been used by the defendant as admissions or declarations or acts of the plaintiff. When Price accepted the deed from O’Hara, reconveying to him a part of tbe identical tract which lie had p-eviously conveyed to O’Hara after it had been subdivided into town lots, he became a party to that deed and its accompanying plats ; and his act in receiving the deed and acquiescing in the location which that deed tended to prove, was proper to go to the jury in connection with his original deed to O’Hara. The evidence was admissible, we think, upon the same principle which allows a party, whose declarations, admissions or acts are given in evidence by his adversary, to give in evidence further declarations or acts which are a part of, or connected with and explanatory of, those previously used against him.

The second instruction, which is found among the defendant’s refused instructions, was properly refused. At all events, its refusal is not, according to the established practice of this court, a ground for reversing the judgment. The deed from Lewis’ administrator to Price was in evidence ; it was undoubtedly evidence that the land thereby conveyed was bounded on the west by the forty arpent lots, for such was the language of the deed. This the jury could plainly observe without any special instruction on the subject; but when the attention of a jury is called by the court to any specific piece of testimony, it frequently misleads a jury into an idea of its importance which it may not deserve and which the court would not attribute to it. Had the instruction been so framed as simply to call the attention of the jury to that part of the deed as one of the circumstances which they might consider in coming to a conclusion relative to the location of this tract, it would probably have done no harm, and the giving of such instruction would have constituted no error; but the instruction was not asked in this shape, and its language might have misled.

The first of the defendant’s refused instructions was properly refused. The third is identical with the one given by the court.

The fourth instruction given for the plaintiff is objected to, but that objection presents the same question which was raised by the admission of the deed from O’Hara to Price. If the deed and plat were admitted, the court committed no error in declaring tbe principles of law which ought to guide the jury in locating the O’Hara tract. To the other instructions given for the plaintiff no substantial objections have been suggested. Although the first instruction has been criticised, we do not think it could have been misunderstood. It seems merely designed to convey the idea, that, if the Lewis tract covered the land in controversy, the plaintiff was entitled to recover, unless the fact of an estoppel was found. We can hardly suppose that the jury had any difficulty in understanding it, or that it could possibly have misled.

We do not wish tó be understood as passing any opinion upon the plaintiff’s refused instructions. Whether right or wrong, their refusal can be no ground of error here. Other cases, as we are informed by the counsel, are still pending concerning portions of this same tract, and therefore an examination of the evidence in detail has been abstained from. It is manifest that there was conflicting testimony, and as we have no power to disturb the verdict, whatever our opinion might be upon the facts, it is unnecessary to express any. The court which tried the case has sanctioned the verdict, and according to well established rules of this court we do not interfere in a case of conflicting testimony.

Judge Scott concurring, the judgment is affirmed. Judge Richardson not sitting, having been of counsel.


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    The State, Respondent, v. Hicks, Appellant.
    1. To constitute murder in, the first degree, the act of killing must he intentional, and done ■without justifiable cause.
    2. Where a homicide is committed under circumstances that leave it in doubt whether the act was committed maliciously or from an apprehension of real danger, the jury may consider the fact that the deceased was of a rash, tur. bulent and violent disposition in determining whether the accused had reasonable cause to apprehend great personal injury to himself.

      Appeal from Crawford Circuit Court.

      Perryman and Carter, for appellant.

      Ewing, (attorney general,) for the State.
    I. The law of the case was fairly presented to the jury. (State y. Hays, 23 Mo. 318.) The fifth, sixth and seventh instructions asked by the defendant were not the law; they were not warranted by the evidence. The temper and disposition of the deceased were not involved in the prosecution. (Whart. Crim. Law, 296; Whart. on Horn. 249 ; Wright v. State, 9 Yerg. 344; State v. Hawley, 4 Harring. 562.) The defendant was not prejudiced by the instructions. (7 Mo. 416; 8 Mo. 224; 3 Grah. & Wat. on New Trials, 717.)
   Richardson, Judge,

delivered the opinion of the court.

The defendant was indicted, tried and convicted of murder in the first degree. On the trial the court gave several instructions, among which is the following: The court fur. ther instructs the jury that malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse ; and it is not necessary, in order to support an indictment for murder in the first degree, to show that the act of killing was intentional and done without any justifiable cause.

This instruction is so palpably wrong that it requires no comment to expose it. To constitute murder in the first degree the homicide must be wilful, deliberate and premeditated ; and these terms, which define the quality of the offence, necessarily involve the element of a prior intention to do the act in question. An act unintended can not be said to be wilful; and though the natural consequences of an act deliberately done are presumed to have been intended, and premeditation may be inferred from the conduct of the accused, yet in the absence of a felonious intent there can be no murder.

In a capital case, in which it is sought to deprive a man of his life, he has at least the right to demand that it shall be taken away according to law; and though it may be fairly argued that the instruction did not mislead the jury, and had no agency in producing the verdict, we can not in a case of this magnitude enter into a calculation of the chances as to whether or not the defendant was prejudiced by it.

The first instruction asked by the defendant and given properly stated the law, and the fifth and sixth were rightly refused, because they omitted the necessary qualification that there was reasonable cause on the part of the defendant to apprehend immediate danger of the supposed felonious design of the deceased being accomplished.

There was evidence tending to show that bitter hostility existed between the defendant and the deceased, and that the latter was a turbulent, violent and dangerous man. It also appeared that the deceased, at the time he received the mortal wound, had a gun which he snapped once or twice at the defendant after the latter had fired, but doubt is left by the testimony as to the position of the gun and the attitude of the deceased before he was wounded. On this state of the evidence the defendant asked the following instruction, which was refused: “ 7. If the jury believe from the evidence that the deceased was of rash, turbulent and violent disposition, and that the defendant had knowledge of such disposition, then it is a circumstance for the consideration of the jury in considering the reasonable cause for defendant’s apprehension of great personal injury to himself.” In my opinion, this instruction ought to have been given. If the defendant killed Mills under circumstances that showed he did not have reasonable cause to apprehend immediate danger of violence to himself, he can not defend himself on the ground of the vicious character of the deceased, for the law promises the same protection to the persons of ail men, and it is as great a crime in the eye of the law to kill without, cause a bad man as a good one. But the imminence of danger, that will justify us in acting upon the instinct of our nature in repelling a blow before it is received, often depends on the character of the assailant. The menacing attitude of a person generally peaceable and law-abiding would often excite no just apprehension of danger, whilst similar conduct of a fierce, vindictive and passionate man would naturally alarm our fears and make us prompt in anticipating his purposes. When danger is threatened and impending wo are not compelled to stand with our arms folded until it is too late to strike, but the law permits us to act on reasonable fear; and therefore when the killing has been under circumstances that create a doubt as to whether the act was committed in malice or from a sense of real danger, the jury have the right to consider any testimony that will explain the motive that prompted the accused. (Quesenberry v. State, 3 Stew. & Port. 308; Munroe v. State, 5 Geo. 137.)

The judgment will be reversed and the cause remanded ;

Judge Scott concurring. Judge Napton absent.


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    Johnson & Wife, Defendants in Error, v. Smith’s Administrator, Plaintiff in Error.
    1. The trusts not reached or affected by the statute of limitations are those technical and continuing trusts that are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of courts of equity.
    2. If a person, assuming to act as guardian for another without any legal authority so to do, should receive moneys to be appropriated to the latter’s benefit, the statute of limitations would commence to run immediately, unless the existence of a disability should prevent it.

      Error to Callaway Circuit Court.

      Boulware and Kouns, for plaintiff in error.
    I. A guardian de son tort is a character unknown to the law. The court instructed the jury erroneously.

      Jones and Hayden, for defendants in error.
    I. No objection is made to the instructions in the motion for a new trial. (15 Mo. 515; 13 Mo. 215 ; id. 455; 26 Mo. 530.) Error in instructions can not be reached by motion in arrest. (10 Mo. 698.) The court did not err in giving or refusing instructions. (19 Mo. 102 ; 18 Mo. 249; 17 Mo. 382, 49; 8 Mo. 522.)
   Richardson, Judge,

delivered the opinion of the court.

William O. Johnson and wife, in May, 1857, presented, for allowance in the county court, an account against Smith’s estate for two sums of money received respectively in 1835 and 1845 by Smith, for the use of Mrs. Johnson before her marriage. Smith died in 1855. It appears that after the death of Robert Carter, who resided in Kentucky, Smith, who was the uncle of Carter’s children, one of whom is Mrs. Johnson, received for the children a small sum of money, which they had inherited from the father ; and he assumed to act, without appointment, as their guardian in the management and control of the same; and, at another time, he received in like manner a small estate, which descended to Carter’s children from their grand-mother who died in Virginia. Smith paid several of the children their shares; and, a short time before his death, admitted that he was indebted to Mrs. Johnson for money in his hands as her guardian. It may be assumed that Smith was never appointed giiardian for Carter’s children by any court or officer ; for it is remarked in the brief of the plaintiff’s counsel that there is no pretence that he was a guardian strictissimi juris, but that he assumed to act in a fiduciary capacity.” Mrs. Johnson’s age is not stated, and it is not shown that she was prevented from bringing her suit sooner by reason of any statutory disability. The court in effect instructed the jury, that the plaintiff’s right of action was not barred by limitations if the deceased acted as Mrs. Johnson’s guardian or received the money for her while acting as such. The instruction is defended on the ground that the money was received by Smith in a fiduciary capacity, and that a trust was thereby created, which withdrew the plaintiff’s demand from the operation oi the statute of limitations.

The term trust, in its general sense, has a wide scope, and is applied to a great variety of the transactions of life. Every bailment is a trust, and the relation of trustee and cestui que trust is created whenever one person receives money for another’s use, or engages to apply it to a particular purpose and fails to do so. In such cases a certain and ordinary remedy exists at law; and a defendant can not be denied the protection of the statute by calling him a trustee and suing him in a court of equity. The rights or defences of parties are not altered by calling things by other names, and they are not made to depend on the forum in which the controversy may be determined.' There is undoubtedly a class of trusts to which the defence of the statute of limitations can not be interposed, but such cases are distinguished by peculiar marks, and fall within the intelligible and definite rule laid down by Chancellor Kent in Kane v. Bloodgood, 7 John. Ch. 110, “ that the trusts intended by the court of equity not to be reached or affected by the statute of limitations are those technical and' continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of courts of equity.”

The facts in this record present nothing more than the case of one person receiving money for another’s use, which could have been recovered under the common counts in an action of assumpsit for money had and received; and the essential character of the transaction was not changed by the intestate’s calling himself the plaintiff’s guardian. If he had been a regular guardian duly appointed, he might have retained the money until ordered by the court, from which his authority was derived, to pay it over, or until his ward became of age; but, as the facts of the case appear, he could have been compelled, at any time, at the pleasure of Mrs. Johnson, to account and pay to her all he had received.

It can not be said that there was no limitation on the right of action, and that the statute did not apply at all to the case, and, if time did not begin to run against the demand when Mrs. Johnson became of age, there is no period at which the cause of action was brought within the operation of the statute of limitations. That can not be, for this action is not distinguishable from the ordinary one of money received by one person to be paid to another, in which case limitation would begin not from the time of demand and refusal, but from the time there was a cause of action, which accrued when the money was received.

It was decided in the case of the State, to the use of Whaley, v. Blackwell, 20 Mo. 97, that the statute of limitations began to run in favor of an administrator against a distribu-tee of an estate from the date of the final settlement and order of distribution. In this case there was no court in which a settlement could be made, or that could order the money in Smith’s hands to be paid over ; but as he was bound to pay it at any time, in our opinion the cause of action accrued when the money was received, and the statute then began to run against the plaintiff’s demand unless Mrs. Johnson was under a disability.

The judgment will be reversed and the cause remanded;

Judge Scott concurring. Judge Napton absent.


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    Johnson et al., Defendants in Error, v. Holley, Plaintiff in Error.
    1. Where, in an attachment suit, in which the defendant is notified by publication and does not appear and answer, judgment by default is rendered against him, such judgment will bind only the property attached. (R. C. 1855, p. 250, § 43, 44.)
    2. A judgment in an attachment suit in the following form: “ It is therefore considered by the court that the said plaintiffs recover of tho said defendant the sum of $368.50 as and for their demand, and also their costs and charges herein expended; and that they have a special execution on the property attached, to-wit, lot No. 9,” &e., is in substantial compliance with the statutory provisions.

      Error to Buchanan Court of Common Pleas.

    Loan, for plaintiff in error.
    I. The judgment should have been against the property attached and not against Holley personally. (R. C. 1855, p-256, sec. 60.)
   Richardson, Judge,

delivered the opinion of the court.

This suit was on a promissory note commenced by attachment on the ground that the defendant was a nonresident of the state. The defendant was notified by publication, but he never appeared to the action. The judgment was in the following form : “ It is therefore considered by the court that the said plaintiffs recover of the said defendant the sum of three hundred and sixty-eight dollars and fifty cents as and for their demand, and also their costs and charges herein expended, and that they have a special execution on the property attached, to-wit, lot No. 9,” &o.

The only error assigned is that the judgment is a general one, when by the law it ought only to operate on the property attached. If the objection was warranted by the fact it would be fatal, for the attachment act expressly declares that when the defendant is notified by publication and does not appear, the judgment shall only bind the property and effects attached, and no execution shall issue against any other property of the defendant. (R. C. 1855, p. 251, § 43, 44.) But this judgment will be construed in reference to the record; and as it will only authorize a special fieri facias against the attached property it is substantially good. It is in the nature of a proceeding in rem, and does not bind the defendant personally. It is like the form indicated in the 10th section of the mortgage act when the mortgagor is only brought in by publication. Judgment affirmed;

Judge Scott concurring. Judge Napton absent.


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    Eldridge, Plaintiff in Error, v. Steamboat William Campbell, Defendant in Error.
    1. A complaint against a steamboat, under the boat and vessel act, verified as follows : “A. B., attorney for plaintiff, makes oath and says he believes the foregoing petition and the matters therein as stated are true. A. B., attorney for plaintiff,” is insufficiently verified.

      Error to Kansas Court of Common Pleas.

      Bouton, for plaintiff in errorr.
    I. The statement was verified as required by law, the attorney Robinson being presumed to be a credible person. (R. C. 1855, p. 305, § 4; id. p. 1234, § 20.) The rulings in Bridgford v. Steamboat Elk, 6 Mo. 356, and Hamilton v. Steamboat Ironton, 19 Mo. 523, were unauthorized by the statute. The affidavit is good under the new code.
   Richardson, Judge,

delivered the opinion of the court.

The affidavit to the complaint in this case was made by the plaintiff’s attorney, and is as follows: “ J. W. Robinson, attorney for plaintiff, makes oath and says he believes the foregoing petition and the matters therein as stated are true. J. W. Robinson, attorney for plaintiff.” It will be observed that the affidavit does not disclose the agent’s means of knowing the facts stated in the complaint; and the only question in the case is whether the affidavit is on that account defective. The point has been expressly ruled by this court in the cases of Bridgford v. Steamboat Elk, 6 Mo. 356, and Hamilton v. Steamboat Ironton, 19 Mo. 523. The case of Bridgford v. Steamboat Elk was decided in 1840, and gave a construction to the 4th section of the act concerning boats and vessels of 1835 — the language of which is preserved in the corresponding section of the same act in the revisions of 1845 and 1855 — and it is a legitimate conclusion that the construction given to the act by the court has received the sanction of the legislature, inasmuch as the two last revisions were made with knowledge of the decision, without changing the phraseology of the section. Furthermore, the syllabus of the cases above cited is contained in the notes appended to the 4th section by the revisers of 1855, which shows that the old law was readopted with full recognition of- the construction it had received. The process against a boat, unlike an ordinary summons, commands the officer to take it into his possession, and unless bonded it is sold, with but little delay, before the suit is determined; and. there is therefore some reason for requiring greater particularity and a stronger prima facie case for seizing a vessel than would be necessary in a suit commenced by ordinary summons.

It was remarked in the case of the Steamboat Raritan v. Smith, 10 Mo. 527, that, as our system of proceeding in rem against vessels had its origin in the maritime law, it was proper to look to that law for the principles of decision in questions not regulated by statute; and we may suppose that the court, in the case of the Steamboat Elk, intended to adopt the analogous rule that exists in some of the admiralty courts, which requires libels praying for'warrants of arrest in personam or in rem to. be verified by the affidavit of the libellant, and that when the affidavit is made by an agent he must state his mean's of knowledge of the facts sworn to. The rule of practice, which is called in question in this case, has been so long established and is so well known that we do not feel warranted in disturbing it, and the judgment will therefore be affirmed;

Judge Scott concurring. Judge Napton absent.


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    Holmes, Plaintiff in Error, v. McGee, Defendant in Error.
    1. In an action for partition the plaintiff alleged that himself and defendant were joint owners of a certain tract of land; that they were “equal partners” in the same; that the said tract had heen divided into town lots, a part of which had been sold; that the residue of the lots were the joint property of the plaintiff and defendant; and prayed for partition of said remaining lots. The court sustained a demurrer to this petition. Held, that the demurrer was improperly sustained; that if the plaintiff and defendant held the land as partners and the affairs of the partnership were unadjusted, the land being chargeable with debts of the firm, or with a balance due the defendant, this matter should be set up in an answer; that, no such defence being interposed, partition might be made of the lots remaining unsold.

      Error to Kansas Court of Common Pleas.

      E. B. Ewing, for plaintiff in error.
    I. No facts are averred in the petition showing a partnership between the parties to the suit. The words “ equal partners” denote the share or extent of interest of each of the parties. If the land is partnership property, it still may be partitioned. The legal title is vested in plaintiff and defendant jointly.

      Hovey, for defendant in error.
    I. The plaintiff seeks to convert a regular petition for account and settlement of a partnership transaction into a statutory action for partition. The petition gives no description of the “ premises sought to be divided.” (R. 0. 1855, p. 1111, § 8.)
   Richardson, Judge,

delivered the opinion of the court.

This was a proceeding for partition. The petition states that the plaintiff and defendant are the joint owners of a tract of forty acres of land, conveyed to them by Riddlesberger, and that they are “ equal partners” in the same, that the tract had been subdivided into town lots, a designated number of which had been sold ; and that the residue of the lots were the joint property of the plaintiff and defendant, of which partition was asked. A demurrer was filed and sustained on the ground that it appeared from the petition that the parties were partners in the land, and it was not averred that the partnership had been dissolved or that the partnership debts had been paid; and also because the land having been laid off into lots, blocks and streets, the plaintiff'had no right to partition of the original tract.

If the land was partnership property, it would be treated as between the partners like personal property, chargeable with the debts of the firm and with any balance due from one to the other upon the winding up of the affairs of the firm; (Carlisle’s Adm’r v. Mulhern, 16 Mo. 56; Duhring v. Duhring, 20 Mo. 174;) and the plaintiff could not by a partition proceeding deprive the defendant of any equitable liens so long as a balance remained due to him or the partnership debts were unpaid. But if all the partnership debts had been paid, and the equitable claims of the parties had been adjusted, there is no reason why the land, though originally partnership property, should not be treated as real estate and subject to all the ordinary incidents of land held by tenants in common.

The expression in the petition “ equal partners” does not seem to have been used in a technical sense for the purpose of describing the nature of the title by which the land was held, but as indicating the extent of the interest of the parties ; and that expression is not sufficient of itself to authorize the legal conclusion that the plaintiff and defendant were partners, or that they held the property as such. The defendant ought to have answered, setting out all the facts from which it could have been determined whether the plaintiff was entitled to partition.

If the land had been laid off into town lots, of course only those remaining unsold could have been divided, and the partition would have been made in reference to the subdivisions and not according to the original tract.

Judge Scott concurring, the judgment will be reversed and the cause remanded. Judge Napton absent.


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    The State, Plaintiff in Error, v. Hopper et al., Defendant in Error.
    1. An indictment, under section 30 of article 8 of the act concerning crimes and punishments (E. C. 1855, p. 630), charging that the defendants unlawfully did disturb a congregation and assembly of people met for religious worship, by wilfully behaving in a rude and indecent manner and using profane discourse within the place of worship of said congregation, is bad; the offence should be charged to have been done wilfully, maliciously or contemptuously.

      Error to Johnson Circuit Court.

      Ewing, (attorney general,) for the State.
    I. The indictment sufficiently describes the offence. (United States v. Batchelder, 2 Gall. 18 ; State v. Bullock, 18 Ala. 416; Thompson v. People,* 3 Parker C. Cas. 214; 6 Verm. 594; Whart. C. L. 190; Barb. C. L. 333; 16 Mass. 385; 6 Saund. 135.)

      Ryland & Son, for defendants in error.
    I. The indictment is bad. (State v. Bankhead, 25 Mo. 558.)
   Richardson, Judge,

delivered the opinion of the court.

It was intended to charge the defendants under the 80th section of article 8 of the act concerning crimes and punishments, (R. C. 1855, p. 630,) which declares that “ every person who shall wilfully, maliciously or contemptuously disquiet or disturb any congregation or assembly of people met for religious worship, by making a noise, &c., shall be punished,” &c. The indictment charges that the defendants unlawfully did disturb a congregation and assembly of people met for religious worship by wilfully behaving in a rude and indecent manner, and using profane discourse within the place of worship of said congregation.

The offence defined by the statute is not charged in the indictment ; for the offence does not consist simply in disquieting or disturbing a congregation, but in doing it wilfully, maliciously or contemptuously. Neither the words of the statute descriptive of the offence nor equivalent words are used. (1 Chit. C. L. 281.)

The motion to quash was properly sustained, and the judgment will be affirmed;

Judge Scott concurring. Judge Napton absent.