text:
    Adams, Respondent, v. Darby & Barkdale, Appellants.
    1. It will be presumed that the drawer of a bill of exchange has a right to-draw on the drawee thereof until the contrary bo shown; if the .payee or holder seeks to recover of the drawer in a case where no presentment has been made, it will devolve on him to show that the drawer had no funds in the hands of the drawee and no right to draw on him; it will not be sufficient to show that the drawer withdrew his funds after the maturity of the bill.
    2. Whenever it is incumbent upon the holder of a bill to make presentment thereof, and he neglects to do so, he will lose not only his remedy upon the bill, but also upon the consideration or debt in respect of which it was given or transferred.

      Appeal from Si. Louis Circuit Court.

      Knox Sf Kellogg, for appellants.
    I. Where a party has received;m,oney which in equity and good conscience he has no right to retain, he is liable, in an action for money had -and'received, to the person to whom in justice and conscience the money belongs, (7 Mass. 288 ; 10 S. & R. 219 ; 6 S. & R. 369.; l'Dall. 148; '2 Dali.-.154; 1 Harr. & Gill, 258; 13 Wend. 488; 2 Nenio',' 91.) The bill of exchange was payable out of the proceeds of :the .castor oil. The defendant received the.proceeds of the oil. By drawing the bill, he had agreed, with him who might be the holder of the bill at maturity that the- same should be paid out of the proceeds of the oil. The proceeds were received by plain tiff. It. is quite immaterial .whether the bill of exchange was presented of not. Respondent could have sustained no damage in consequence of the failure to present. The plaintiff withdrew all property in the hands of the drawee. He retains f925, to which, in common honesty, the defendants are entitled.

      Bland 8f Coleman, for respondent.
    I. Plaintiff was not liable upon'the bill. The failure to present discharged the drawer. (Ohitty on Bills, 385; Byles on Bills, 169.) The want of presentment was not excused. (See Chitty on Bills, 389 ; Byles, 171, 230, 231.) The plaintiff was not liable for money had and received. The bill of exchange did not operate as an. assignment of the proceeds of the sale of the oil. It was a bill of exchange, •not an order to pay over the proceeds. (See Rimbáll v. McDonald, 20 Mo. 577; Luf v..Hope, 5 Hill, 413 ; Byles on Bills, 74.) • ' . '
   Richardson, Judge,

delivered the opinion of the court.

It is averred in the petition that on the.4th of September, 1856, the plaintiff deposited with the defendants, who are bankers, $2,296, under the agreement that he could withdraw the same at his pleasure; that he drew checks against the deposit, prior to the 18tb of October, to the amount of $1,635, leaving a balance of about $660; and that after-wards, on the 17th of December, he drew a check for said balance which the defendants refused to pay. The defendants in their amended answer did not deny any of the allegations in the petition, but set up as a counter claim that the plaintiff, on the 15th of April, 1856, drew a bill of exchange on Oglesby & Macauley, of New Orleans, and therein and thereby directed them, sixty days after the date thereof, to pay to the order of Kirkman & Luke $925 for value received, and to charge the same to account of fifteen barrels of castor oil per Pennsylvania; that Kirkman & Luke endorsed the bill for the accommodation of the plaintiff, who sold it to the defendants on the 16th of April, and that they were then the holders thereof. They further alleged that before the date of the check described in the petition (December 17, 1856) the plaintiff received of Oglesby & Ma-cauley all the proceeds of the castor oil, amounting to more than $925, and before the commencement of the suit (February 18, 1857) received of Oglesby & Macauley all money and the proceeds of all property which they ever had received for him or on his account. Wherefore they claimed that the plaintiff was indebted to them $925 for money had and received, being the proceeds of said castor oil.

The plaintiff demurred to the counter claim for the reasons that it did not appear that the bill had ever been presented for acceptance or payment, or that, the drawees had ever refused to pay it, or that notice had been given of its dishonor, or that the plaintiff withdrew the proceeds of the oil before the maturity of the bill; also because no excuse was shown why the bill had not been presented, either for the reason that the plaintiff had no right to expect it would be paid when he drew it, or that he had no funds in the hands of the drawees during the currency of the bill, and finally for the reason that the defendants did not show that they were entitled to the proceeds of the oil. The demurrer was sustained and judgment given for the plaintiff.

The engagement of the drawer of a bill is only conditional, that he will pay if the drawee be requested at the maturity of the bill to pay and refuses to do so and due notice of its dishonor be given; and generally he will be discharged from all liability unless the bill is properly presented on the day it ought to be. The holder, however, will be excused from making any presentment, if it is shown that the drawer had no right to draw, or had no funds in the hands of the drawee or expectation of funds, or there was no obligation of the drawee to accept, or the drawer having funds in his hands of the drawee during the currency of the bill had withdrawn the same before the bill matured. But until the contrary is shown, it will be presumed that the drawer had effects in the hands of the drawee, and had a right to draw upon him for the amount. (Chitty on Bills, 435.) And, even though the drawer had no funds or' property in the hands of the drawee, he is entitled -to have the bill duly presented and to receive due notice of its dishonor, if there, was a fluctuating balance between them in the course of their dealings, or he had a reasonable expectation when he drew the bill that it would be paid, or if the drawee was under a promise to accept or had been in the habit of accepting without regard to the state of their accounts. (Dickens v. Beal, 10 Pet. 572.) If proper presentment is not made, or if made and the bill is dishonored and proper notice is not given, it is a presumption of law that the drawer has been damaged, and Chitty says that “ almost the only allowed proof of the negative is that of the entire want of effects in the hands of the drawee continually, from the time of drawing the bill until and after the day it fell due, and this under such circumstances as to establish that the drawer had no right to expect the drawee or any other person to accept or pay.” No case has been found in the books which decides that the holder of a bill is excused for having failed to present it at the proper time, because the drawer withdrew his funds after the time that the bill ought to have been presented.

These principles are well established ; and though instances occur every day, in which parties are allowed to take advantage of an omission by a person who would charge them when it is obvious that no injury has been sustained by reason of the omission, it would be unwise and would shake the stability of the law to multiply exceptions in order to save hard cases. If the plaintiff had withdrawn the proceeds of the oil before the bill matured, the defendants could easily have said so, but the form of the averment implies an admission that the funds were not taken away until after the bill became due. The answer says that before the drawing of the check, which was in December, the money was withdrawn, but the bill was due long before in June, and nothing is stated to repel the inference that the bill would have been paid if it had been presented.

The direction at the foot of the bill to charge to a particular account gave the defendants no interest in the oil; (Kimball v. Donald, 20 Mo. 577 ;) but their only right was to the bill. And whenever it is incumbent on the holder of a bill to present it at the proper time and he neglects to do so, he will lose not only his remedy upon the bill, but also upon the consideration or debt in respect of which it was given or transferred. (Chitty on Bills, 354; Story, Prom. Notes, § 203.)

Judge Scott concurring, the judgment will be affirmed.


source: Caselaw Access Project

author: RICHARDSON, Judge,

license: Public Domain

text:
    Hamlin, Respondent, v. Duke, Appellant.
    1. An award, to tie capable of enforcement according to the provisions of the act concerning arbitrations, must he in writing and made upon a written submission ; a parol submission and award will, however, be valid and binding if the subject matter of the controversy is such that a parol agreement in respect to it would be valid, and the award made is of such a character that the party in whose favor it is made has a remedy to' compel its performance ; in such case the award may be pleaded in bar of a suit on the original cause of action.

      Appeal from St. Louis Laip Commissioner’s Court.

      Bland Coleman, for appellant.
    I. The court erred in refusing to instinct the jury as requested. The award was a bar to the suit. (15 Wend. 99 ; 2 Hill, 271; Kyd on Awards, 261, 10 ; 12 Johns. 311; 19 Wend. 285.)
   RICHARDSON, Judge,

delivered the opinion of the court.

The plaintiff brought an action before a justice of the peace, against the defendant, to recover damages for an injury done to his mule by the carelessness of the defendant’s servant. . It appeared on the trial that before the commencement of the suit, the parties submitted the controversy involved in this action to the arbitrament of two person»;, mutually selected by them, and agreed to abide by their decision, and that the arbitrators thus chosen made their award that the defendant should pay the plaintiff thirty-five dollars, of..which they notified the parties. It was not shown that either the submission or the award was in writing or.that the defendant had performed the award. The defendant asked among other instructions the following, which the -court refused to give: “ If the jury believe from the evidence in the cause that the. plaintiff Hamlin and the defendant Duke submitted the matter in relation to the alleged injury complained of in the statement of the cause of action filed in this cause to arbitrators selected and agreed upon between them, and that such arbitrators made an award under such submission, and notified them of such award, then the plaintiff can not recover upon the cause of action filed in this cause. ”

To entitle an award to be enforced according to the provisions of the act concerning arbitrations and references (R. C. 1855, p. 193) it must be in writing, and so also must the submission; but the statute did not,intend to destroy the legal effect of a parol award made under a parol submission. By the common law when the subject matter is such that a parol agreement between the parties would be valid, a verbal submission and award will be binding upon them. (Caldwell on Arb. 36 & notes, and 302 & notes.) The party has a remedy on an award whenever it creates a new duty, which is substituted for the original controversy, and he can not resort to his action on that which was referred. And whenever the party, in whose favor the award was made, has a remedy to compel performance, the award may be pleaded in bar of a suit on the original cause of action. A void award may sometimes be a good bar if performance is alleged, but an award without performance is a bar to an action on the original demand, if the parties have mutual remedies against each other to compel the execution of the matter awarded. It would be otherwise if there was no remedy for the thing awarded. (Gascoyne v. Edwards, 1 Younge & Jer. 19 ; 3 Chitty’s Plead. 927, note ; Armstrong v. Martin, 11 John. 188 ; Jessemin v. The Haverhill, &c., Iron Manu factory, 1 New Hamp. 6

The instruction was improperly refused and for that reason the judgment will be reversed and the cause remanded; the other judges concurring.


author: RiCHARDSON, Judge,

text:
    Hight, Appellant, v. Robbins, Respondent.
    1. As a general rule the master of a steamboat navigating the rivers of the west lias authority to hire pilots and other subordinate officers for the whole of a boating season; such contracts, in the absence of any limitation upon the master's general authority by custom or otherwise, would be binding upon the owner.

      Appeal from St. Louis Court of Common Pleas.

    This was an action against the defendant as owner of the steamboat “ Editor” to recover wages alleged to be due plaintiff under a contract entered into by him to serve as pilot on said boat. In April, 1856, the steamboat Editor was running in the Upper Mississippi trade from St. Louis to St. Paul. James E. Smith was the master, and the defendant Robbins the owner. Said Smith hired the plaintiff to serve as pilot for the season of five months, at three hundred dollars per month. It was agreed that in case the Editor should lay up or for any reason cease to run as long as five months, then the plaintiff was to go on any other boat said Smith could find for him, or he, plaintiff, could get a chance to go on; and the wages he should earn on such other boat were to be credited in his account with the Editor. Plaintiff continued on board the Editor as pilot until about the 1st of July, when the boat ceased running. Plaintiff was then paid his wages up to that time. After the expiration of the five months for which the plaintiff was hired, the plaintiff made a settlement with Smith, the master, and, after deducting in accord anee with the original agreement wages received by plaintiff for services rendered on other boats, it was found that the sum of four hundred dollars was due plaintiff. It was in evidence that each time the Editor came into port the defendant came down to the boat and received all her earnings. It also appeared that defendant was present when Captain Smith hired the other pilot of the Editor, who was hired about the same time and upon the same terms. He took part in the conversation and in making the contract. The court, at the instance of the defendant, instructed the jury as follows : “ The jury is instructed that this suit is upon a special contract alleged by the plaintiff to have been made by the agent of the defendant; and there is no proof before the jury tending to show that the agent had any authority to make such a contract, and the jury should therefore find for the defendant.” The plaintiff thereupon took a nonsuit, with leave, &e.

      Henderson ¿f Thomas and Hayden, for appellant.
    I. The instruction given was clearly wrong. There was evidence on which the jury might well have found for plaintiff even on the ground of direct, though implied authority from the defendant to the captain to make the contract. The master is the authorized agent of the owner to hire the subordinate officers and crew of a boat or a vessel in a foreign or home port. (Story on Agency, § 116, 121, 300 ; Abbott on Shipping, 152, 216, 734, 794; Curtis on Merchant Seamen, 14, 18, 328.) Every mariner on his contract for service has a remedy against the owner as well as the maker, even though the owner took no part in the transaction and was unknown in it. This is so by the common law, (Waite v. Gibbs, 4 Pick. 298 ; 11 Johns. 72,) and by the admiralty law. (Gilp. 592; 3 Strnm. 286.)
    Grover, for respondent.
    I. No facts appeared in evidence from which the jury could legitimately infer or presume that defendant ever authorized Smith to make the contract sued on, or that defendant had any knowledge of its terms or conditions. No custom or usage was shown. The master can not bind the owner to pay for unemployed time or for services rendered upon other boats under the facts and circumstances disclosed in the pleadings and proofs in this case.
   RiCHARDSON, Judge,

delivered the opinion of the court.

This case presents the question whether the master of a steamboat, within the duration of his own term of service, has the power to employ a pilot so as to "bind the owner for a longer time than one trip of the boat.

The law is well settled that the master of a ship has the right to employ the mariners and appoint his subordinate officers either in the home or foreign port; but this power, it seems, is limited to a single voyage, and, though it is conceded that masters of steamboats have the same power, it is contended that it is limited to one trip of the boat. The ordinary voyage of 'a ship requires several weeks and most generally several months, whilst some of the boats, that navigate the waters of this state, make daily, some of them semi-weekly and weekly, trips ; and few of them are out of port more than twenty days at a time. And, arguing from analogy, as the master of a ship employs those under him for a voyage, it would be reasonable to say that the master of a steamboat has the incidental authority to employ his subordinates for an ordinary boating season. The popularity and success of a boat depend very much on the character of its officers. Customers are drawn to a boat by the known skill and reputation of its officers, and public confidence would never be given to a vessel that changed its clerks, pilots or engineers every trip ; and the best officers— who can command constant employment and permanent situations — would not take a berth on a boat which they were liable to lose at the end of every trip.

The clerk ought to know the trade and customers of the boat; the pilot should not only be familiar with the river, but ought to know the habits of the boat and the particular manner of landing it; and an engineer is certainly safer and more competent when attending to machinery that he is accustomed to manage. It is not only for the interest of the public, but it is better for the owners, that this power should exist; for if the pilots or other officers could only be employed by the master for a single trip or voyage, they would seek indemnity for the risk of losing their places by an increased compensation.

The power of a master in the temporary service of the owners, and engaged himself for only a single trip, would not reach to the extent of contracting with a pilot for a greater length of time than his own term of service; but we think his authority, coextensive with the duration of his right to command the vessel, extended to the employment of a pilot for the whole of one boating season; and this power is deducible from the nature of his employment and the necessities of commerce. This may be stated as the general rule, subject, of course, to the right of the owner to man his vessel as he thinks proper, and to such exceptions as the particular circumstances of each case may create, and the express or implied incidents to the trade in which the boat may be engaged. This implied authority may be affected by the usages or customs of a particular trade, but, in the absence of evidence of any modification of the general rule by well established custom, we are not called on to say how far it would yield if a boat should change owners, or be destroyed, or be compelled to lay up, or go into a different trade or river.

It is said that there is no evidence in the record of any usage on the subject, and that we ought therefore to apply by analogy the law governing ships on the high seas to steamboats on the western rivers ; but every one knows that many rules govern the navigation of the ocean that are inapplicable to the navigation of our rivers. Law is founded on reason, and, springing out of the necessities of society and the wants of commerce, it adapts itself with a wise flexibility to the new developments of trade and the increased and diversified interests of communities. A.n expanding and enriching commerce has grown up on the great rivers that bound and intersect this state, which has become an important and leading interest that ought not to be crippled by arbitrary rules that belong to another system, but it should be fostered by wise laws suggested by experience and adpated to its character and peculiar wants. We can not shut our eyes to the leading principles which, as individuals, we know govern it and have grown up with it; but the courts will take notice of such general customs as are founded in reason and enlightened public policy.

It appears from the evidence that the plaintiff was employed by the master as pilot of the defendant’s boat for the term of five months, and that the master continued in command of the boat until after the expiration of the term for which the pilot was engaged; and as we think the master had authority to make the contract so as to bind the defendant, the instruction which the court gave that forced the plaintiff to take a nonsuit was erroneous.

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


author: RxchardsoN, Judge,

text:
    Reed et al., Defendants in Error, v. Pelletier et al., Plaintiffs in Error.
    1. A. conveyed a stock of goods in trust to secure certain notes in favor of B. In the deed it was stipulated that the property conveyed should remain in the possession of A. until the maturity of the notes secured, when, if they were not paid, the trustee might take possession and sell. A. remained in possession and continued to sell in the usual course of business. C., a creditor of A., sued out an attachment against A. on the ground that he had fraudulently conveyed and assigned his- property so as to hinder and delay his creditors. Held, that the declarations of B., (he not being a party to the suit and being a competent witness for either party and not shown to have conspired with A.,) made in the absence of A., to the effect that A. had the right to sell the goods embraced in the deed of trust in the ordinary course of business, were inadmissible in evidence.
    2. The constructive fraud against creditors, which exists where it is understood between the grantor in a deed of trust conveying a stock of goods and the cestui que trust that the former is to remain in possession and continue to sell in the ordinary course of business, is sufficient to support an attachment under the seventh clause of the first section of the attachment act.

      Error to St. Louis Circuit Court.

    This was a suit by attachment against Thomas A. Pelle-tier and John D. Pelletier. The affidavit charged that the defendants “ had fraudulently conveyed and assigned their property and effects so as to hinder and delay their creditors. There was a plea in abatement denying the truth of the affidavit. Upon the trial of the issue raised by this plea, the following facts, among others, appeared : Defendants, being indebted to the firm of Hugh Boyle & Co. in the sum of $1,737, executed a deed of trust conveying their stock in trade to a trustee to secure said indebtedness evidenced by notes therein described. This deed contained the following stipulation: “ It being understood that the property may remain in the possession of the said parties of the first part until default of payment as aforesaid,” &c. The deed was duly acknowledged and recorded. The notes were not paid and the trustee took possession and advertised the property for sale. Before a sale the levy of the present attachment was made. Evidence was introduced by plaintiffs to show that at the time of the execution of the deed of trust the defendants were embarrassed pecuniarily, and that the stock of goods was worth more than the debt secured by the deed of trust amounted to. A witness called by plaintiffs was permitted to state, against the objections of the defendants, that ■Boyle had said to him in conversation that he had given the defendants permission to hold possession of the goods and settle with their creditors, and that they had from him a right or permission to continue selling the goods in the store in the usual course of business; and that he (Boyle) supposed the defendants had stock on hand worth some six or seven thousand dollars. Boyle, called as a witness for defendants, de nied having made these statements.
    The court, at the instance of the plaintiffs, gave the following instructions : “ 1. If the jury believe from the evidence that the deed of trust of defendants to Boyle & Co. was made with intent on the part of the defendants to hinder or delay the other creditors in the collection of their debts, then they will find for the plaintiffs. 2. If the jury believe from the evidence that there was an agreement between defendants and Boyle & Co., at the time of executing the deed of trust and afterwards, that defendants should continue in the possession of the goods and property therein conveyed, with the privilege to sell and dispose of the same in the usual course of business or trade for their own account and benefit, and that said defendants did remain in possession of the same from the date of the deed until after attachments were levied upon them, and continued from time to time to sell and dispose of portions of such property for their own use, then the jury will find the issues for the plaintiffs. 3. If the jury believe from the evidence that the deed of trust of defendants to Boyle & Co. was made for the purpose of covering up their property therein named and to enable them to obtain settlements from their other creditors on terms of discount from the sums really due, then they will find for plaintiffs.
    The following instructions ashed by defendants were refused : “ 1. The defendants had a lawful right to make the deed of trust given in evidence to secure the debt named therein to Boyle & Co.; and if the jury find from the evidence that said deed was made to secure a bona fide debt due to Boyle & Co. by defendants, then the said deed is not any evidence of fraud on the part of the defendants as against their creditors. 2. The possession of the store and goods of defendants had and held by them after the execution of said deed of trust, and the sale of articles of goods from time to time by the defendants in the ordinary course of business, is no evidence of fraud in the conveyance or assignment of these goods as charged in the affidavit of the plaintiffs, if the jury find from the evidence that said deed was made fairly to secure an honest debt, and that defendants acted honestly and fairly in making said deed and in making the said sales of their goods after the execution of said deed. 3. The question of fraud in this case is one of intent, and if the jury find from the evidence that the deed was fairly made to secure a bona fide debt, and that there was no intent to defraud on the part of the defendants or Boyle & Co., and that the sales of the goods afterwards were honestly made in the regular course of their business, without any agreement on the part of Boyle & Co., outside the deed of trust, that they should have the right to sell the goods, then the fact that such sales were made furnishes no evidence of fraud in the absence of further proof that the proceeds of such sales were fraudulently disposed of so as to hinder, delay and defraud their creditors.”
    The court, at the instance of the defendants, gave the following instruction: “ Fraud is not to be presumed in any case, but must be proved, and the burden of proving the fraud charged in this case is upon the plaintiffs.”
    The jury found for the plaintiffs.

      N. Holmes and B. A. Hill, for plaintiffs in error.
    I. The testimony of Gill as to conversations with Boyle was inadmissible. (15 Mo. 383.)
    II. The deed of trust contained no evidence of fraud on its face. The first instruction asked should have been given. It did not come within the cases of Brooks v. Wimer, 20 Mo. 503, Zeigler v. Maddoz, 26 Mo. 575, as to facts constituting fraud appearing on the face of the deed. Nor within that of Stanley v. Bunce, 27 Mo. 269. ' The fact that defendants of their own motion continued selling the goods in the usual course of business, in the absence of any proof that they fraudulently disposed of the proceeds, was of itself no evidence that the conveyance was fraudulent. The second and third instructions should have been given. (15 Mo. 420 ; 5 Tenn. 235 ; 3 M. & S. 371.) The fraud must be actual fraud to support the attachment. Constructive fraud is not sufficient. (25 Mo. 378, 416 ; 10 Mo. 50 ; 14 Mo. 597 ; 19 Mo. 29 ; 19 Mo. 656.)

      Biddlecome, for defendants in error.
   RxchardsoN, Judge,

delivered the opinion of the court.

Tlié plaintiffs sued out an attachment against the defendants on the ground that they had fraudulently conveyed or assigned their property so as to hinder, delay or defraud their creditors, and the defendants filed their plea in the nature of a plea in abatement traversing the truth of the affidavit. It appeared, on the trial of the issue made on the affidavit, that the defendants had made a deed of trust conveying their stock of goods in the store kept by them as merchant tailors for the purpose of securing an indebtedness to Hugh Boylo & Co., which contained a stipulation that the property conveyed should remain in the possession of the defendants until the notes became due, when, if they were not paid, the trustee should have the right to take possession and sell. There was evidence tending to show that the defendants remained in possession of their store and continued to sell the stock of goods included in the deed in the usual course of business until the trustee took possession. For the purpose of applying to the deed the principle decided by this court in the cases of Brooks v. Wimer, 20 Mo. 503, Walter v. Wimer, 24 Mo. 62, and Stanley v. Bunce, 27 Mo. 269, a witness called by the plaintiffs was allowed to repeat, against the defendants’ objections, a conversation he had had, in the defendants’ absence, with Mr. Boyle, in which the latter had stated that the defendants had the right to sell the goods in the ordinary course of business.

When the maker of a deed of trust or mortgage that conveys a stock of goods continues in possession and sells in the usual course of business, with the knowledge of the cestui que trust, very slight evidence ought to be required to prove that his dealing in that manner with the property was pursuant to a right secured contemporaneously with the execution of the instrument, which would stamp the transaction with constructive fraud, at least, as effectually as if the provision had been incorporated into the deed. But when the cestui que trust is not a party to the suit, and is a competent witness for either of the parties, and is not shown to have been in any conspiracy with the person to be affected by his declarations, we do not see on what principle his declarations, which are mere hearsay, are admissible, and in our opinion the declarations of Boyle were improperly received as evidence against the defendants.

The term fraud, as understood in the statute concerning fraudulent conveyances, has the same meaning in the attachment law, and it is not necessary to show that the act originated in any meditated design to commit a positive fraud or to injure other persons. There are many acts not the result of intentional fraud which the law, nevertheless, from their tendency to deceive other persons, or from their injurious consequences to the public, prohibits as being within the same reason and mischief as actual fraud. And whatever, by the judgment of the law, is denounced as fraudulent must be regarded in the same light in reference to an act or transaction which is made the ground of an attachment; and if the act charged to have been committed is fraudulent, actual or constructive, it will be inferred that the party intended its natural and ordinary results should follow. There are thirteen cases in which an attachment may issue under our statute, and it will be observed that the “ intent” of the party liable to the writ is not a necessary ingredient except for the causes enumerated in the fifth and sixth clauses of the first section. (E. C. 1855, p. 288.) The affidavit will be good if it follows the language of either of the clauses, and it is never necessary to prove more than the party is required to swear to. If the attachment is based on either the seventh, eighth, ninth or tenth clauses, it Will be sustained on proof that the defendant fraudulently had done or was about fraudulently to do any of the prohibited acts; and whether the act be fraudulent will depend on the judgment which the law pronounces upon it.

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


author: RichaRDSON, Judge,

text:
    Fatchell, Appellant, v. St. Louis & Iron Mountain Railroad Company, Respondent.

    1. The charter of the St. Louis and Iron Mountain Eailroad Company did not confer upon a justice of the peace jurisdiction of an action against the company to recover damages for injuries sustained by reason of the construction of a culvert.

      Appeal from Washington Circuit Court.

    Elmer, for appellant.

      S. A. Holmes, for respondent.

       This cause was submitted at the October term, 1858, of the supreme court. — [Eep.

   RichaRDSON, Judge,

delivered the opinion of the court.

The plaintiff commenced, before a justice of the peace, a suit in the nature of an action on the case for an injury to his premises caused by the construction of a culvert. The only question presented in the record is whether the justice had jurisdiction of the case.

The thirty-eighth section of the act concerning railroad corporations declares that “ all existing railroad corporations shall be exempt from the jurisdiction of justices’ courts, except as in this act and in their own charters provided.” (R. C. 1855, p. 430.) That act imposes penalties on railroad companies for doing or omitting to do several things, and the fifty-first section provides that all penalties imposed by the act may be sued for in the name of the state, and “ if such penalty be for a sum not exceeding one hundred dollars, then such suit may be brought before a justice of the peace so that there is something on which the exception in the thirty-eighth section can operate. The defendant was incorporated March 3, 1851, (Sess. Acts, 1851, p. 479,) and the first sectipn of the charter, enumerating its corporate powers, declares, among things, that it “ may sue and be sued, plead and be impleaded, defend and be defended, in all courts and places whatsoeverand it is argued that this language conferred jurisdiction on justices of the peace, and that therefore the defendant is brought within the exception contained in the thirty-eighth section of the railroad law. The words are “ may sue and be sued in all courts and places whatsoever.” Now it will not be contended that the defendant can be sued before a probate or county court, or before a justice of the peace, without reference to the nature of the action or the amount in controversy, or that a suit could be brought in a county remote from the line of the road where neither the plaintiff nor any of the officers reside ; and therefore the language is to be construed in a qualified sense, and the right to sue and the liability to be sued are to be exercised and controlled by the provisions of the general law. By the revised code of 1835 and 1845 the jurisdiction of justices of the peace in actions against corporations, was expressly denied, and prior to 1851 many charters were granted containing clauses similar to the one under consideration but it was never supposed that they were intended to confer a jurisdiction positively prohibited by the general law. (R. C. 1835, p. 348 ; R. C. 1845, p. 635.) It was not until 1851 (Sess. Acts, 1851, p. 232) that corporations could be sued in justices’ courts, and the statute was passed on the idea that such jurisdiction had not previously existed. We do not think that the clause in the defendant’s charter was designed to give jurisdiction to justices of the peace, and the judgment will be affirmed;

the other judges concur.


author: RichaRdson, Judge,

text:
    Boeka, Plaintiff in Error, v. Nuella, Defendant in Error.
    1. A promissory note may be transferred by delivery for a valuable consideration without endorsement or written assignment ,so as to enable the as-signee to maintain an action thereon in his own name.

      Error to St. Louis Laio Commissioner’s Court.

    The promissory note upon which this suit is founded is negotiable.

      Farish, for plaintiff in error.

      Goodlett, for defendant in error.
   RichaRdson, Judge,

delivered the opinion of the court.

The only question of law discussed in the briefs is whether the holder of a promissory note, who acquired it for a valuable consideration, can maintain an action upon it in his own name without an endorsement or a written assignment.

A party claiming to be the owner of a note transferred merely by delivery has only an equitable title to it; and, before the practice act of 1849 was adopted, he could not in such a case maintain an action on it in his own name, but was compelled to bring suit in the name of the payee to his use, after a bill in equity. But by the law as it now stands there is only one form of action for the enforcement or protection of private rights and the redress or prevention of private wrongs, which is denominated a civil action ; and every action must be prosecuted in the name of the real party in interest, except as provided in the second section of the second article of the practice act; (R. C. 1855, p. 1217;) so that an action can now be maintained in the name of the holder of a note transferred to him merely by delivery. (Savage v. Bevier, 12 How. Prac. 160; Billings v. Jane, 11 Barb. 620 ; Edwards on Bills and Prom. Notes, 286.) It seems, however, that a note transferred in that way will be subject to every defence which the maker had against it at the time of or before notice of the transfer.

All the points made at the trial were ruled in the plaintiff’s favor, and as no instructions were asked or given, we can not see that the court decided or was called on to decide any question of law. It may be that the only witness who was examined was not credited, and as nothing was saved by the bill of exceptions the judgment must be affirmed;

the other judges concur.


author: Richaiidson, Judge,

text:
    Bredow, Respondent, v. The Mutual Savings Institution, Appellant.
    1. Upon the dissolution of a partnership by the death of a partner, the surviving partner may proceed to wind up and settle the affairs of the partnership without giving bond as required by the fifth section of the first article of the act respecting executors and administrators; he may transfer a promissory note held by the partnership in payment of a partnership debt or liability.
    2. Should the surviving partner fail, within the time limited, to give bond as required by the fifty-fifth section of the first article of the administration act, he is liable to be ousted from possession of the partnership effects, and divested of the right to administer on the same, by the executor or administrator of the deceased partner, if the latter should give bond as required by the fifty-ninth section of the first article of said act.
    3. In an action in the nature of an action of trover for the conversion of a promissory note, the measure of damages, prima facie, is the amount called for on the face of the note.
    4. In a suit against a corporation, a stockholder thereof is a competent witness in behalf of the corporation. (Barclay v. Globe Mutual Insurance Co. 26 Mo. 490, affirmed.)

      Appeal from St. Louis Court of Common Pleas.

    Alpheus E. Koehls. and Henry Golberg were partners in trade under the style of Koehls & Golberg. They held two promissory notes payable to their order as partners. These notes, during the existence of the partnership, were endorsed to the Mutual Sayings Institution for collection and as collateral security for an indebtedness then existing from Koehls & Golberg to said institution. On the 27th of August, 1856, the partnership was dissolved by notice. A few days thereafter Golberg died, and on the 29th of September, 1856, his widow received letters testamentary and qualified as executrix. She included in her inventory the whole of the partnership property, but did not give the further bond required by the statute to authorize her to administer on the partnership effects. On the 16th of October, 1856, Koehls gave a power of attorney to one Rudolph Macwitz authorizing him among other things to settle up the affairs of the late firm of Koehls & Golberg. Koehls never gave bond as surviving partner under' the provisions of the administration act. On the 1st of December, 1856, Macwitz, acting under his power of attorney, assigned said two notes to the firm of Bredow & Schaffler. This transfer to Bredow & Schaffler was made to secure them against their liability on an accommodation endorsement of a promissory note which they had made in behalf of the firm of Koehls & Golberg. On the 2d of December, 1856, this assignment was presented to the Mutual Savings Institution and the notes were demanded. They were not given up. The indebtedness of Koehls & Golberg to said institution, to secure which said notes were endorsed to said institution, was paid and extinguished December 12, 1856. Said notes were never collected by the Mutual Savings Institution. The letters of Mrs. Golberg were revoked and on the 6th of January, 1857, one Charles Enslin was appointed administrator de bonis non of the estate of Gol-berg, and gave the bond required by the fifty-ninth section of the first article of the administration act, and undertook the administration of the partnership estate according to the provisions of the act. On his demand, the Mutual Savings Institution gave the notes up to him. The present suit was instituted by Bredow (to whom Schaffler had assigned his interest in the notes) to recover damages for the alleged wrongful conversion of said notes. On the trial, John Cav-ender, president of the Mutual Savings Institution and a stockholder therein, was offered as a witness on the part of the defendant, and excluded for the reason that he was a stockholder.

      N. Holmes, for appellant.
    I. Enslin was the only person entitled by law to demand and have from the defendant the possession of the notes in question. The surviving partner has no right to administer on the partnership estate unless he gives bond as required by the statute. The surviving partner had no power to endorse and assign in the name of the firm notes held by the firm, even in the settlement of debts. (3 Kent, 63; 13 Yerm. 452, 522; 5 Geor. 166 ; 2 Gratt. 372 ; Sto. on Part. § 322; 3 Esp. 108 ; 1 H. Bl. 155 ; 4 Johns. 224; 1 Humph. 51.) The power of attorney conferred no such power on Macwitz. (3 Snead, 508; 18 Pick. 505.) These notes having been endorsed to the defendant before the dissolution of the firm, the legal title to the instruments and the possession were in the defendant, and the supposed assignment by attorney could only give to the assignee an equitable interest in the proceeds of the notes when collected by the institution, but no right to demand the possession of the notes themselves. The assignment under the power could transfer nothing but his interest as a tenant in common in the final balance of the partnership accounts when adjusted by the person entitled to administer on the partnership estate. The administrator was that person under the statute. The notes having been endorsed to the institution as collateral security, the burden of proof was thrown on the plaintiff to show that the debt had been paid off before demand was made for the notes. The fifth instruction should have been given.
    II. The court erred in excluding the testimony of Caven-der. (Barclay v. Globe Mutual Ins. Co. 26 Mo. 490.)
    III. Even if trover could be maintained for the notes as such, no more could be recovered than the value proved. It was proven that the notes were in suit in Iowa and Illinois.
    Gardner, for respondent.
    I. The surviving partner had the right to apply the partnership assets to the payment of partnership debts prior to administration upon the partnership estate. If Koehls could have transferred the notes himself he could do it by attorney. Enslin was not appointed administrator until more than a month after plaintiff’s right of action accrued. His subsequent appointment could not affect plaintiff’s rights. (See 7 N. H. 567; 6 Pick. 360; 6 Cow. 441; Watson on Part. 267.) It was not necessary that Koehls should give bond as provided by the administration act.
   Richaiidson, Judge,

delivered the opinion of the court.

The main questions in this case are, whether the statute regulating the administration of partnership estates (R. C. 1835, p. 121) prohibits a surviving partner from winding up and settling the partnership concerns unless he first gives bond with security for the faithful discharge of his duties; and next, whether a surviving partner, independently of the statute, has authority to pass the legal title to a partnership note when transferred in payment of a partnership debt,

If the surviving partner executes a bond as provided in the fifty-fourth and fifty-fifth sections of the act, he can not be disturbed by the personal representatives of his deceased •partner in the possession of the partnership property and in the right to use it in any manner consistently with the primary duty of closing the partnership affairs. He ought to give the bond required by law whenever he undertakes to wind up the partnership estate, and, if he fails to do so for the period of thirty days after letters testamentary or of administration have been granted bn the estate of the deceased partner, he is liable at any time to have the business taken out of his hands ; but this power as surviving partner is not suspended until he gives a bond; nor is it superseded by the mere appointment of an administrator of the deceased partner ; for the administrator as such has no right to administer upon the partnership effects without giving an additional bond. (R. C. 1855, p. 124, § 59.)

The grant of letters testamentary to Mrs. Golberg gave her no authority to interfere with the partnership property, because she did not give the further bond required by law; and though Koehls omitted to give a bond as surviving partner, his authority continued until superseded by the appointment of Enslin as administrator de bonis non, who gave both of the bonds required by the statute ; and until he qualified all the rights of the surviving partner remained unaffected by the statute, though he did not attempt to comply with it.

The dissolution of a partnership as between the partners themselves operates as a revocation of their joint power to employ the property or funds of the partnership any longer in the business or trade thereof. As soon as the partnership ceases, the partners become tenants in common of all the partnership property and effects; and neither of them can create new contracts binding upon the partnership, nor buy or sell goods on account thereof, nor endorse or transfer the partnership securities; (McDaniel v. Wood, 7 Mo. 543; Long v. Story, 10 Mo. 636 ;) but each of the partners has authority to collect and pay debts, to adjust unliquidated accounts, to receive any property belonging to the firm, and to apply the partnership assets and effects to the payment of its liabilities; for these rights and powers remain as indispensable to the final settlement of the affairs of the partnership, and are subordinate to the paramount duty of the partners to 'wind up the partnership concerns with diligence and in good faith for their mutual interest. The authority of one partner, which is implied from a partnership, to act for another, is revoked the moment the partnership ceases; and as the partners then become only tenants in common of the property and assets undisposed of, one of them, without the consent of the others, can not transfer the title to any of the partnership securities, and all of them must join in an action to recover any of the outstanding debts. The reason of this is not simply because one partner after a dissolution can not by his endorsement of a note create a new liability binding upon the others, but because, only having an undivided interest in a partnership note, he can not, without the consent of the other partner, transfer the title to the whole of it.

' f When, however, a partnership is dissolved by death, although the personal representatives of the deceased partner become tenants in common with the survivor of all the partnership property and effects in possession, they do not become tenants in common of the choses in action belonging to the partnership, for they belong to the survivor. The legal title to them by operation of law is cast upon the survivor, and he has the exclusive right to reduce.them into possession and must sue upon them in his own name without joining the representatives of the deceased partner, though he will be accountable to the partnership for whatever he collects. (Story on Part. § 346.) This is upon the principle that though chargeable as a trustee for the proceeds of partnership notes when received, the legal title to them is in the survivor; and if he has the legal title, he can transfer them, although his endorsement may not affect the estate of his deceased partner with any remote or contingent liability. It is. a mere question of power. j

Upon the death of G-olberg, the title to the partnership notes vested in Koehls, as surviving partner, and he had the power, before Enslin qualified, to transfer the notes in controversy to the plaintiff in payment of a partnership liability. He did not thereby impose any new obligation on the partnership, but on the contrary paid a firm debt, and reduced the partnership liabities to that extent.

The proposition contained in the fifth instruction asked by the defendant is embraced in an instruction given by the court.

The measure of damages, in an action of trover for the conversion of a chose in action, is, prima facie, the amount that appears to be due on it, subject to be reduced by proof showing that it is of less value than it calls for. (O’Donoghue v. Corby, 22 Mo. 393 ; Menkins v. Menkins, 23 Mo. 252.) The circumstance that the notes in controversy were in suit, we do not think was evidence that the makers of them were insolvent or that the principal and interest due on them would not be collected, but perhaps the reasonable expenses for collecting them ought to be deducted from any recovery against the defendant.

On the authority of Barclay v. Globe Mutual Insurance Co., 26 Mo. 490, the court improperly excluded Mr. Caven-der as a witness on the ground that he was a stockholder in the defendant, and for that reason the judgment will be reversed and the cause remanded;

the other judges concur.


author: NaptoN, Judge. Scott, Judge.

text:
    Chouteau, Plaintiff in Error, v. Magenis et al., Defendants in Error.
    1. The legislature of the former territory of Missouri had no power by legislative act to grant divorces. (Per Napton, Judge; Scott, Judge, not concurring, holding that the territorial legislature had such power.)

      En'or to St. Louis Court of Common Pleas.

    This was an action instituted to recover possession of an undivided interest in a certain lot in the city of St. Louis. Pelagie Labadie, at the time of her death prior to the year 1814, owned a lot on Main street in St. Louis. At her death said lot descended to her children, Sylvestre Labadie, Emilie Pratte, Pelagie Sarpy, Sophie Chouteau, (the plaintiff in the present suit and at that time wife of Auguste P. Chouteau,) and Marie Antoinette Honey (at that time wife of John W. Honey). In 1814, the said heirs of Madame Labadie (except Mrs. Honey) conveyed their interest in said lot to said John W. Honey. On the 22d of January, 1816, the legislature of the territory of Missouri passed an act to divorce said Honey and wife.  (See Sess. Acts, 1816, p. 80.) On the 23d of January, 1816, said John W. Honey conveyed his interest in said lot to" said Marie Antoinette Honey. This deed was a direct conveyance in the ordinary form. Said Marie afterwards married John Little and died in the year 1818, without issue, leaving her surviving the said John Little and her three sisters (including plaintiff) and one brother mentioned aboye. John Little died in 1832, and his interest was sold, under a judgment against his administrator, to John P. Schatzell. On the 13th of June, 1827, the four heirs of said Marie Antoinette Little, including plaintiff and her husband, conveyed the north half of said lot to Robert Rankin, bounding it south by the “ lot of John P. Schat-zell.” This deed was defectively acknowledged. In partition proceedings between Rankin and Schatzell, in 1828, the entire lot was sold to Rankin. In 1828 said Rankin conveyed the south half of said lot to Arthur L. Magenis. On the 20th of January, 1848, Sophie Chouteau sold and quitclaimed to Rankin the north half of the entire lot. In this deed the deed of 1827 is referred to. Auguste P. Chouteau died in 1838. Arthur L. Magenis went into possession in 1828, and possession under him has continued uninterruptedly until the present time. He made valuable improvements. The plaintiff claimed to recover one-eighth of that portion of the lot which was conveyed to Magenis. The court, by its instructions to the jury, ruled that the divorce of Honey and wife was void; that the deed from Honey to his wife Marie Antoinette Honey was inoperative as a conveyance to the wife.
    The plaintiff recovered one-fortieth of the lot sought to be recovered. Writs of error were sued out by both plaintiff and defendants.

      E. Bates, for Sophie Chouteau.
    I. Admitting for the purposes of this case that the territorial legislature had no power to grant a divorce, still the deed from Honey to his wife was a good and valid conveyance of the land even though the marriage remained undissolved. If was good according to the common law as introduced into the territory in a modified form by the act of Jan. 19, 1816. The common law thus introduced is not identical with the-English common law. (See 2 Louis. 521, 556.) By the English common law such a conveyance would be void. (1 Bl. Com. 442 ; Co. Lit. § 168.) This rule is arbitrary and technical in its character, and is habitually evaded in practice. A wife may take an estate from her husband through the medium of the statute of uses. (See 1 Mo. 553.) It is practically adjudged that man and wife are two. The husband may convey and she may take. If the land did not pass to Mrs. Honey, what became of it ? It was no longer the grantor’s. It is like the case of an alien. The deed was good under the common law at the day of its date.
    II. But supposing it bad at common law, still it is good under the territorial act divorcing Honey and wife. The second section of said act is distinct from the first,.and grants to the woman personal independence, proprietary rights and legal protection apart from her husband. Supposing the first section void, the second is an independent grant of rights and powers to the married persons notwithstanding the marriage while it existed. The power of the legislature to pass said section is not disputed. It is a power strictly within the terms of the organic law of June 4, 1812.
    III. The defendants are estopped to deny the legal validity of the deed, for they are privies to it and claim even on this record under that deed.

      F. A. Dick, for Magenis and others.
    I. The court committed no error in instructing the jury that the deed from John W. Honey to his wife was inoperative. (See Frissell v. Rozier, 19 Mo. 448 j 1 Co. Litt. 130 ; Reeves Dom. Rel. 90.) As Mrs. Honey could take nothing by this deed, she never had more than one-fifth of the property, one-eighth of which vested in Mrs. Chouteau.
    II. The court committed error against the defendants. The deed of 1827 was well executed by Mrs. Chouteau. (Lindell v. McNair, 4 Mo. 380 ; 10 Mo. 320 ; 5 Mass. 454.) The act of 1825 in relation to conveyances should be held to apply to rights acquired after the law went into effect. (See 20 Mo. 170, 227, 269.) The deed of 1848 ratifies and confirms the deed of 1827. If the deed of 1827 be held valid, it operates as an estoppel against ■ plaintiff. It calls for the lot on the south as Schatzell’s. The marriage contract of 1809 established a community between Auguste P. Chouteau and the plaintiff. He as head of the community could sell the property that entered into it. The court erred in refusing to give the instruction authorizing the jury to find the plaintiff estopped.

       This act is as follows : “ An act to divorce John W. Honey and Marie Antoinette his wife, late Marie Antoinette Lahbadie, from the bonds of matrimony. Be it enacted by the General Assembly of the Territory of Missouri, That from and immediately after the passage of this act, the matrimonial bond and civil contract of marriage existing between the aforesaid-John W. Honey and Marie Antoinette his wife, late Marie Antoinette Lahbadie, shall be and the same are hereby completely annulled, set aside and dissolved as fully and as effectually as if no such contract or union had ever been made and entered into between them. Sec. 2. And be it further enacted, that from and immediately after the passage of this act, the said John W. Honey and Marie Antoinette his wife, late Marie Antoinette Lahbadie, shall in future be held as distinct persons, altogether unconnected by any mystical union or civil contract whatsoever at any time heretofore made or entered into between them. And the said Marie Antoinette Honey, late Marie Antoinette Lahbadie, shall be taken and considered as feme sole, enjoying the separate protection of the law in her person and property, and free from the constraint and coercion of the said John W. Honey forever. This act to take effect from and after its passage.”

   NaptoN, Judge.

If the legislative divorce in 1816 be treated as a nullity and Jobn W. Honey survived bis wife, the interest of the plaintiff in the premies is one-fortieth; and if that interest has not been disposed of or in any manner barred, the judgment of the court of common pleas was of course correct. If the legislative divorce and subsequent deed and marriage be upheld, Mrs. Chouteau’s interest in the premises is one-eighth upon the supposition that the deed of June, 1827, was inoperative, and that no subset quent act of hers operated to convey her interest.

We have been unable to perceive any principle which would authorize this court to give efficacy to the second section of the divorce act of 1816, disregarding the first. Whatever construction the language of that section might admit of if it were an independent enactment, it is plain that its provisions were made altogether in reference to the subject matter supposed to have been provided for and attained in the first section. The powers conferred on Mrs. Honey, whatever they were, were not supposed to be given to her as a married woman. They were conferred as a consequence of the divorce previously granted. The legislature had no intention of distinguishing the marital relations and their incidents of John W. Honey and his wife, whilst they retained this relation to each other, from those incident to any other man and wife in the territory. Aside from the provisions of this act, the deed from John W. Honey to his wife can not be sustained on common law principles, or on such modifications of them as existed in this territory at that time. (Frissell v. Roper, 19 Mo. 448.)

The deed of June, 1827, not being operative to convey the plaintiff’s interest in the lot, because not executed in the mode which the law then made essential, there is nothing done by her to affect her title until January, 1848, when she conveyed to Rankin her interest in the north half of the lot. To construe this last deed, not only as giving efficacy to the deed of 1827 for the northern half of the whole lots, but as an adoption of its recitals so as to estop her claim to the south part of the lot, would be contrary to the plain intent of the instrument, which only professed to convey her interest in the north half owned by Rankin.

It is clear that the partition proceedings in 1827 can not in any way affect the plaintiff’s interest, as she was no party to them, nor in any manner concurred in them.

The decision of the case, then, depends altogether upon the validity of the divorce law of 1816. On this subject I have only to say, that the decisions of this court, made without my concurrence, have determined me to let the judgment of the court of common pleas stand. It is true that these decisions are mainly based upon a provision of our state constitution prohibiting one department of the government from exercising powers properly belonging to another, but they are also to some extent placed upon the ground that marriage is a civil contract and within the provision of the constitution of the United States which prohibits the passage of a law impairing its obligations. Although not responsible for the reasoning or conclusion of the court in these cases, I am not prepared to say that the legislature of the state had any less power on this subject than the territorial legislature which preceded it; and this conclusion is strengthened by observing that as early as 1807 there was a territorial law making ample provisions for divorces, which, with some modification, was reenacted in 1816. Moreover, the question, we may reasonably presume, is likely to prove a mere abstraction, except so far as the disposition of the present case is concerned, and there is no peculiar hardship in its facts and circumstances which prevents the enforcement of the previous adjudications on this subject.

Judgment of common pleas affirmed.

Scott, Judge.

I do not concur in affirming this judgment. The territorial assembly, in my opinion, had authority to grant divorces, which is a different question from from that arising on the right of the general assembly to do so under our state constitution as it was originally framed. In tlie cases in which this question has arisen, all of which were under the constitution, the argument mostly relied on against legislative divorces was derived from the provisions of our constitution. No such restrictions existed under the territory on the legislative power. The general result of the American authorities is that the granting of divorces by the legislative power is not the exercise of such a judicial authority as will render them invalid. (Bishop on Marriage and Divorces, § 792.) Under such circumstances, there is no propriety- in extending the principle of the decisions made heretofore by this court further than the ground on which they stand will warrant.


author: NaptoN, Judge,

text:
    Magwire, Plaintiff in Error, v. Marks, Defendant in Error. Magwire, Plaintiff in Error, v. Marks, Defendant in Error.
    1. If a levy of an execution tie made upon property not belonging to the defendant therein and such execution returned satisfied to the amount made by the execution sale, should the plaintiff in the execution be compelled to refund to the true owner the amount received by him from such sale, he will be entitled to have the satisfaction endorsed on the execution set aside and to have an execution issue for the full amount of the judgment.
    2. A. recovered a judgment against B. Execution was issued thereon and levied by order of A. — he giving the plaintiff an indemnification bond — on certain personal property in possession of B. but known by A. to be claimed by C. as trustee for the wife of B. The sheriff made sale of the property levied oh, and the amount made was endorsed on the execution in pro tanto satisfaction thereof. C. sued the sheriff and recovered judgment against him for the amount made by.said levy and sale, with interest, which was paid by A. Held, that A. was entitled to have the sheriff’s return vacated and set aside so far as it stated a partial satisfaction of the execution, to have the same amended in accordance with the facts, and to have an execution issue for the whole amount of the judgment.

      Error to St. Louis Court of Common Pleas.

    On tlie 9th of January, 1843, John Magwire recovered a judgment in the St. Louis court of common pleas against Dennis Marks for 11,575.35, and on the 21st of April, 1843, Magwire recovered another judgment against said Marks for $960.54. On the 3d of December, 1847, executions issued upon these judgments, and the sheriff by direction of Ma-gwire levied the same on certain personal property. A sale was made under these levies and the amount made was credited pro rata upon the two executions. Magwire afterwards filed his motions to vacate the satisfaction entered by the sheriff in his returns on the executions. These motions were heard upon the following agreed statement of the facts: “ It is agreed by the parties in the cause that Samuel Conway was sheriff of St. Louis county at the time the execution on the judgment in this cause was levied ; that he as such sheriff, by the direction of the plaintiff, levied on the property endorsed on said execution as the property of the defendant; that at the time of said levy the said property was in the possession of the defendant; that at the time of the levy the sheriff was notified that Marks held the property only as agent of Luther C. Clark, trustee of Amira Marks, wife of defendant, and thereupon the sheriff suspended further proceedings until he was indemnified by Magwire, the creditor, who directed the sheriff to proceed upon the levy; that the amount endorsed on said execution as having been made by said sheriff is the proceeds of the sale of said property to various purchasers at the sale and which was paid over to the plaintiff by said sheriff; that formal bills of sale were made to the various purchasers according to the statute law; that afterwards Luther C. Clark, trustee of Amira M. Marks, wife of defendant, instituted a suit in this court against said Conway, sheriff aforesaid, to recover the value of said property levied upon under said execution, and such proceedings were had in said suit that said Clark recovered judgment at the -term, 1855, of said court for the value of said property against said Conway, amounting to $4,842.18 and costs ; that the plaintiff indemnified said sheriff before the said property was sold; and the plaintiff having notice of the claim of said Clark took upon himself the defence of the last mentioned suit, and after judgment and before this motion or notice thereof given to defendant, said sheriff Conway paid said judgment, and by reason of the recovery of said judgment the plaintiff, on account of his bond of indemnity, did pay a sum equal to the whole amount exclusive of interest that he had received from said sheriff and also all the costs, fees and commissions retained by him as having been made by the sale of said property under said execution ; that Dennis Marks, the defendant, assuming to act as agent for his wife’s trustee, Clark, was active in causing said claim of said Clark to be made, and said Marks employed counsel to institute and prosecute said suit against said Conway to recover the value of said property; and after final judgment and execution, and after the plaintiff had paid and refunded said money and satisfied said judgment in said suit against said Conway, said Marks recovered the amount of said judgment, to-wit, $5,800, from the sheriff of St. Louis county, but the defendant, in all that he did in respect to said property, claimed that he was acting only as agent of Luther C. Clark, the trustee of the wife of defendant — the said Clark at the time of said levy and sale being absent in a distant state; and he executed to defendant Dennis Marks a power of attorney, which was duly executed and recorded in the recorder’s office of St. Louis county, and is hereto annexed and made a part of this agreement. The defendant agrees to the foregoing statement under the express reservation and condition that he may take every exception allowed by the law to plaintiff’s motion as being out of time or otherwise improper, or that the facts as stated are incompetent as evidence or irrelevant.”
    The court overruled the motion and refused to set aside or vacate the sheriff’s returns on the executions, and refused to allow other executions to issue against the defendant except for the balances of the judgments uncollected.

      Krum Sf Harding and W. F. Wood, for plaintiff in error.
    I. The court erred in refusing to strike out the credits endorsed on the executions, and in refusing to issue alias executions for the whole amounts of the judgments discharged of the credits. (See Adams v. Smith, 5 Cowen, 280 ; 2 Harr. 299; 14 Ala. 541; 30 Maine, 18T, 450; 22 Ala. 587 ; Heath v. Daggett, 21 Mo. 69.)

      Field, for defendant in error,
    cited R. C. 1855, p. 484, § 46 ; Hensley v. Baker, 10 Mo. 157 ; Garth v. McOampbell, 10 Mo. 154; Vattier v. Lytle, 6 Ham. 477; Perry v. Williams, Dudley 44; Curtis v. Bennett, 11 Humph. 295.
   NaptoN, Judge,

delivered the opinion of the court.

The twentieth section of the eighth article of the act to regulate proceedings in justices’ courts is an important modification of the law governing execution sales. Occurring, as it does, in the act which relates to justices’ courts only, it may be presumed that it was only designed to apply to executions issuing from these inferior tribunals, yet its language is broad enough to include all kinds of executions; and it is not very apparent what motive could have induced the legislature to introduce the remedy therein provided in one class of executions more than in another. The doctrine of caveat emptor is not abolished by this section so far as purchasers at execution sales are concerned; but a consequence, which has been drawn from this doctrine, exempting execution debtors from all responsibility to purchasers at such sales when their title has failed, is distinctly repudiated. The principle might have been applied with great propriety to all executions, from whatever quarter they might emanate ; and it seems to be the result of oversight or accident that the provision is found where it is, instead of in the act regulating executions generally. The case of Heath v. Daggett, 21 Mo. 69, is not reconcilable with a strict application of the maxim of caveat emptor to execution sales. The return of the sheriff was in that case not held to estop him from showing that the property levied on and sold was not in fact the property of the defendant in the execution; and therein the decision was totally at variance with the case of Curtis v. Bennett, 11 Humph. 295, which has been cited in behalf of the defendant in this case.

The facts of this case are, that the plaintiff has received no benefit from any thing which has been done under this execution, and the defendant has received no injury; that the plaintiff has obtained no money, and the defendant has lost none ; that both parties are in statu quo before the levy. To hold that the plaintiff is estopped from showing this because of the return of the sheriff, which shows the collection of nearly all the money called for by the execution, can only be justified by regarding the plaintiff as bound by the levy and sales which he ordered, however fruitless their results might prove. This would have the appearance of inflicting a penalty upon him for taking a course which he is expressly authorized to take by the statute, and for the consequences of which to others he has become responsible under the provisions of the statute by giving ample bond and security. These consequences the plaintiff has already submitted to in the shape of damages recovered in another suit; and to add to them the loss of his claim against the defendant in the execution, not one cent of which has been paid, would certainly be a harsh construction of the law. Undoubtedly the rule of caveat emptor is the settled rule in this state so far as purchasers under execution are concernd; and if the rule, by its implication, necessarily embraces the defendant in the execution, the plaintiff and the sheriff — as was held in the cases of Valter v. Lytle’s Adm’r, 6 Hamm. 482, and Perry v. Williams, Dudley, 46 — the application of Magwire to have the return corrected could not be granted. But the section of the statute to which we have referred shows the intention of the legislature not to extend the operation of this principle to the defendant in the execution, and, taken in connection with the decision in Heath v. Daggett, seems to warrant the conclusion to which with some hesitation we have arrived in the face of respectable authorities to the contrary. We shall permit the sheriff’s return to be amended.

The judgment is reversed and the cause remanded;

the other judges concur.


author: Richardson, Judge, Soott, Judge,

text:
    Hunt, Respondent, v. Cobb, Appellant.
    1. In summary proceedings under tire landlord and tenant act of November 29, 1855, the summons issued by the justice and directed to the tenant must he executed at least five days before the return day thereof. (R. C. 1855, p. 1017, § 34.)
    2. Should a justice of the peace in such a summary proceeding, in -which less than five days’ service of the summons has been had before the return day of the writ, render judgment of default against the defendant, and he should appeal, and should fail to prosecute his appeal with effect, the ap-pellee would not be entitled to have the judgment affirmed by the appellate court upon his filing a transcript of the proceedings of the justice. (Scott, Judge, dissenting.)

      Appeal from St. Louis Land Court.

      Cobb, for appellant.

      Comfort 4* Manter, for respondent.
   Richardson, Judge,

delivered tbe opinion of tlie court.

The plaintiff commenced proceedings before a justice of the peace on the 8th of July, 1856, under the landlord and tenant act, to recover the possession of a tenement alleged to have been in the possession of the defendant. The summons was issued on the 8th, served on the 12th, and was returnable on the 15th of July, 1856. On the return day, judgment by default was rendered against the defendant, and after an unsuccessful motion, made in proper time, to set it aside, he appealed to the land court. It appears from the record that at the October term of the land court the plaintiff filed a transcript of the appeal, and on her motion the judgment of the justice was affirmed, which the court subsequently refused to set aside.

The justice evidently proceeded on the idea that the local act of 1845 concerning landlords and tenants (R. 0. 1845, p. 1101, Appendix) was still in force, though it had been superseded by the act of 1855, which took effect the 1st of May, 1856. The act of 1845 required that the summons should be made returnable within three days, and should be served two days before its return ; but tlic new law made a material change in that respect, and provides that the summons shall be executed at least five days before the return thereof. (R. C. 1855, p. 1017, § 34.) The law, then, in force required that the summons should be served at least five instead of two days before the return day; and according to the principle decided in Williams v. Bower, 26 Mo. 601, the writ was void, and the justice did not acquire any jurisdiction of the person of the defendant to authorize the judgment. As the judgment was void, the land court ought not to have affirmed it, and it will therefore be reversed and the cause dismissed.; Judge Napton concurs.

Soott, Judge,

dissenting. The process issued in this case was erroneous, and the suit should have been dismissed by the justice. He refusing to do this, the defendant had a right to appeal, but not having complied with the terms on which the appeal was allowed by law, the judgment of the justice was affirmed. This was under the act to promote the payment of jurors in St. Louis county. (Sess. Acts, 1847, p. 68.) The case of Harrison v. Steamboat Cumberland Valley, 13 Mo. 227, sanctions the course pursued in this case. This case has been subsequently followed, holding however that it does not apply to appeals from the law commissioner’s court.

The judgment should, in my opinion, have been affirmed.


author: RichardsoN, Judge, Soott, Judge,

text:
    Hamilton, Respondent, v. Wright’s Administrator, Respondent.
    1. The word “lease” as an operative word in an instrument of lease imports and contains a covenant for quiet enjoyment as well as the words “ grant and demise.” (Scott, Judge, dissenting.)
    2. Such implied covenant runs with the land.
    3. A., a tenant for life only of certain real estate hut possessed of a full power to dispose thereof by appointment by will, leased the same to B. for a term of ten years. A. died before the expiration of said term without having attempted to protect the tenant by exercising the power of appointment, and the tenant was evicted by the remainder man. Held, that B. might maintain an action against A.’s administrator to recover damages for a breach of the covenant implied from the word “ lease” in the instrument of lease.

      Appeal from St. Louis Land Court.

    Demurrer to a petition. The petition is as follows: “ The plaintiff states that one William F. Wright in his lifetime, by an indenture made between him of the one part, and Peter Difley of the other part, dated the 27th day of April, 1852, the said William F. Wright did lease unto the said Peter Difley a certain lot of ground and premises therein more particularly mentioned and described, situate in the city and county of St. Louis, in the state of Missouri, for the term and at the rents and upon the covenants and stipulations therein particularly set forth, which said indenture, sealed with the seal of the said William F. Wright, the plaintiff now brings into court here, and which is in the words and figures following: ‘ Lease, made this 27th day of April, 1852, by and between William F. Wright, lessor, and Peter Difley, lessee. Said Wright hereby leases unto said Difley, upon the conditions, covenants and for the rents heretofore named, a lot of ground [describing it] and being the same premises heretofore leased to said Difley: To have and to hold for a term of ten years from and after the 1st of January, 1853, at an annual rent of six hundred dollars, payable monthly, &c. And said Difley hereby covenants as follows : 1st, that said rent shall be punctually paid as due ; 2d, that said Difley shall, within a reasonable time after the date hereof, add one story more upon the two houses upon said lot, with suitable back buildings, and make said improvement in a permanent and suitable manner, and keep and maintain all the improvements on said lot in good order and repair, and so deliver them to the lessor or his legal representatives at the end of said term by limitation or forfeiture; 3d, that the improvements shall be insured and kept insured, <fcc. This lease is made upon condition that if said rent or any instalment thereof shall be allowed to remain due for thirty days after the same is payable, or if any of the covenants aforesaid shall not be complied with within a reasonable time, then this lease shall be forfeited and void. It is understood that all the repairs, additions and improvements on said lot and on the buildings thereon are to be at the sole cost of said lessee, and said lessor shall not be in any way chargeable for said premises. This lease is given in lieu of and is accepted for the renewed lease for five years from the 1st of January, 1853, stipulated for in the indenture of lease dated 22d of November, 1847, and under which said Difley holds said premises up to the beginning of the term aforesaid. The lessor is to pay the state, city and county taxes. It is also understood that this lease is assignable at the option of said Difley or legal representatives. It is understood that the lessor shall have the right to designate the insurance company in which said premises shall be insured, and may from time to time, as said lessor may elect, change the risk from one oifice to another, &c. In witness whereof,’ &c. And the plaintiff further states that the said Peter Difley on the 18th of October, 1852, by deed of that date, together with his wife, for the consideration of $1,300 cash in hand paid them by the plaintiff, did assign, transfer and set over unto the plaintiff the said indenture of lease, together with all their right, title and interest, claim, property and demand of, in and to the said premises so as aforesaid leased, which they then had either by means of said lease or otherwise howsoever, by virtue of which said assignment the plaintiff on the same day last aforesaid entered upon the said premises and became possessed thereof, and was entitled to have and keep possession of the same upon the 1st of January, 1863 ; that he and those under whom he claims have punctually paid the rents reserved in the said lease and performed all the covenants on their part to be kept and performed, and that he had been, from the time of said assignment to him up to the time of taking of the possession of the premises by the curator of William F. Wright, as hereinafter mentioned, in the receipt of large sums of money over and above the rents thereon and the cost and expenses of insurance. And the plaintiff further states that the said William F. Wright departed this life some time in or about the 9th of May, 1856, intestate, leaving as his only son and heir William T. Wright, who is under the age of twenty-one years, and for whom the said James T. Sweringen has been duly appointed curator, the said Sweringen, defendant, having also been duly appointed by the St. Louis probate court administrator of the estate of the said William F. Wright, deceased. And the plaintiff further states that before and at the time of making the said indenture and from thence until at the time of the death of the said William F. Wright, he, the said Wright, had not a good right or title, or full or lawful power or authority to lease the said premises for the said term of ten years in the manner above set forth, or for any period beyond the term of his life, (notwithstanding he had full power and authority under the deed from Mary Ann Wright, hereinafter mentioned, by his last will and testament, to direct the trustees in the said deed named to hold or convey the said property subject to the said lease, or otherwise dispose of the same in such manner as to render valid and effectual as against all persons whomsoever the said term or the residue thereof,) the only title or right or power which the said William F. Wright at any time ever had in, to or over the said property being derived under a certain deed from Mrs. Mary Ann Wright to M. Lewis Clark, Samuel B. Churchill, and David D. Mitchell, dated November 19,1844, by which said deed the premises were held by the said parties in trust to and for the said William F. Wright during his natural life, and after his decease to be conveyed and disposed of by the said trustee as he, the said William F, Wright, should by last will and testament appoint, (but by no other appointment,) and in default of such appointment to and for the lawful heirs of his hody, as by said deed, reference being thereunto had, may more fully and at large be seen. And . the plaintiff further saith that the said William F. Wright having so as aforesaid died intestate and without having made such an appointment, the said term ended and was determined upon his decease; and thereupon, under and by vir-sue of the said deed from the said Mary Ann Wright, the said William T. Wright, as heir of the said William E., became and was entitled to the fee simple of the premises so as aforesaid leased and to the immediate possession thereof; and the said William T. Wright having such lawful right and title to enter into and upon the said premies and take, possess and enjoy the same and evict the plaintiff therefrom, whilst he, the plaintiff, was in the possession of the premises, that is to say, on or about the 26th day of June, 1856, by James T. Sweringen, as curator of and acting therein in behalf of said William T. Wright, lawfully entered into and upon the said premises and thereof evicted the plaintiff (under and by. virtue of the right and title so as aforesaid acquired by the said William T. under the said deed from the said Mary Ann Wright) and still lawfully holds the plaintiff out of the same. By reason of which said several premises the plaintiff not only lost and was deprived of the use, benefit and enjoyment of the said premises for the residue of the said term, but also lost the value of the improvements or additions put upon the said premises by the said Peter Difley in conformity with his said covenant in that behalf (which value the plaintiff believes to be about $1,000). To the damage of the plaintiff three thousand dollars, for which he asks judgment.”
    The defendant demurred to this petition. The court sustained the demurrer.

      Shepley, for appellant.
    I. The law implies a covenant as well for title as for quiet enjoyment from any words of leasing. (Rawle on Cov. 473-4 and notes; 1 Furlong on Landlord and Tenant, 456; 4 Jarman, Conveyancing, 390; Addison on Contracts, 50, 61; 5 B. & C. 589; Coote, Land. & Ten. 215; Maeder v. City of Carondelet, 26 Mo. 112 ; Maul v. Ashmeacf, 20 Penn. 482 ; Black y. Gilmore, 9 Leigh, 448; Dexter y. Mauley, 4 Cush. 14.) The only case opposed to this yiew is Levering y. Levering, 18 N. H. 517. See Rawle on Cov. 478, notes.)
    II. The covenant, in both its branches, runs with the land. (Rawle on Cov. 343, 380; Dickson v. Desiré’s Adm’r, 23 Mo. 151; Chambers’ Adm’r v. Smith’s Adm’r, 23 Mo. 174.)
    III. The defendant as administrator of William F. Wright is liable upon the implied covenant. The doctrine supposed to have been established in Swan v. Scarles, Dyer, 257, and Adams v. GiMney, 6 Bing. 656, is repugnant alike to common sense ana common justice, violates the plainest rules for the construction of instruments, and is utterly at variance with an intelligent theory which furnishes any covenant at all. This case is however entirely without the rule of those above mentioned, as well because the lessor had it in his power to maintain the tenant in his estate, (and it is only to suppose him an honest man to infer that he intended to do so,) as the clear intention of the parties deducible from the subject matter and terms of the leasej and the court will not extend the doctrine to cases not within the reasons upon which it is based. (See generally Swan v. Scarles, Dyer, 257 ; 6 Bing. 656 ; Shep. Touch. 160 ; Cro. Eliz. 157, 553 ; 1 Brownl. & Gol. 22; Com. Dig. Covenant C.; 2 Williams on Ex’rs, 1490 ; Timer, Abr. Covenant D. & E.; Rolle, Rep. 82 ; Hobart, 12; 9 Jarm. on Conv. 371; 7 Scott, 60; 1 Nev. & Per. 663 ; 2 Chitty, 646; Styl. 407; Gilb. Cov. 327; 6 Scott, 447; Co. Litt. 389, a; 1 C. B. 427 ; 4 Jarman on Conv. 391; Owen, 105 ; 3 O. B. 194 ; 9 Leigh, 446 ; Williams on Real Property, 112; Woodfall on Land. & Ten. 91; 6 Upper Can. R. 303 ; 3 Kern. 156; Smith on Land. & Ten. 262.)

      F. A. Dick, for respondent.
    I. The petition is defective. The lease is a mere transfer of the lessor’s right to the possession of the premises for ten years in consideration of the lessee’s covenants. It contains no express covenants. The law will not imply a covenant by the lessor that he had power to lease for ten years, when the estate held by him is repugnant to such intention. (6 Ring. 656.) The words “grant” and “ demise,” when used in a lease, are the only words which imply covenants for title. (6 Cruise Dig. s. p. 369; Shep. Touch. 160, 167; Wheat. Selw. 461; 8 Cow. 36, 40 ; Adams v. Gibney, 6 Bing. 656; 5 Bing., N. C., 185 ; 9 New Hamp. 219; 13 N. H. 513 ; 11 Mo. 442 ; 9 Yes. 330 ; 2 Caines, 194 ; 4 Wend. 502.) Even where there are implied covenants in a lease for years, the covenants cease with the estate of the lessor. (6 Bing. 656 ; 1 C. B. 431.) The plaintiff has no cause of action against the decedent’s estate for the reason that there was no cause of action against him during his life. None but an express covenant could make the administrator liable, where the decedent was not and could not be liable during his life. (6 Bing. 656; 1 C. B. 402.) The plaintiff does not allege in his petition any covenant made by Wright nor any covenant broken by him. The plaintiff does not allege an eviction by the persons shown by the petition to have been entitled to the possession, the trustees. The possession taken by the cui’ator was not accompanied by any legal right.
   RichardsoN, Judge,

delivered the opinion of the court.

The words relied upon in this case as creating a covenant for quiet enjoyment are these: “ The said Wright hereby leases unto said Difley,” &c. It is almost an axiom in the law that the words “ demisi,” “ concessi,” or demise and grant, in a lease for years contain an implied covenant for quiet enjoyment and that the lessor had power to demise ; but it is insisted that no other words have that technical operation. In many of the early cases, which discuss the force of particular words on this subject, the leases were in Latin, and, as the words “ demisi” or “ concessi” were always employed, it was only necessary to decide on the effect of these words; and as in England leases are drawn by professional conveyancers, who use established forms or follow stereotyped phrases that contain the words “ grant” and “ demise,” their courts have not been called on to decide whether other equivalent words would not have the same force and imply the sgme covenants. Whilst therefore the adjudged cases assume or decide that the use of the word “ demise” of itself implies a covenant, it can not be inferred that no other translation of “ demisi” has the same operation. The case of Levering v. Levering, 13 N. H. 517, is the only case we have seen, which denies that such an effect can be implied from the words'“ let qnd lease ,” and the reasoning of the court is founded solely on' the absence of these words in the older cases. But Rawle, in his learned treatise on covenants for title, properly observes that the only difference would seem to be that they used the Latin word “ demisi,” of which he thinks “ lease” is a fair translation; and the law now seems to be that the implied covenants arise, not from particular or fixed terms, but from the words of leasing, or, as Furlong expresses it, from the iase of words of demise in a lease.” (Furlong on Land. & Ten. 456 ; Maule v. Ashmead, 20 Pa. 482; Young v. Hargrave’s Adm’r, 7 Ohio, (Pt. 2) 63; Black v. Gilmore, 9 Leigh, 448.) The lessor.must have intended that the lease should be beneficial to the lessee, and the latter had the right to require of his landlord that the quiet enjoyment of it should be secured to him against eviction or disturbance by his act or the act of those who claim under or paramount to him. (Smith, Land. & Ten. 262, 268.) We think, then, that the lease in this case contained a covenant for quiet enjoyment implied by law, which ran with the land, and for the breach of which an action accrued to the assignee of the term.

The next question is whether the administrator of Wright is liable upon the implied covenant. It is said that as the lessor was only a tenant for life, the covenant was limited to the estate which he could lawfully grant, and that it ceased at his death because there was no longer an estate to support it. The two cases of Swan v. Scarles, Dyer, 257, and Adams v. Gibney, 6 Bing. 656, decide that if a person having only an estate for life makes alease for years, which contains the covenants implied from the use of certain words, and, after Ms death, but before the expiration of the term, the lessee is evicted by the remainder man, an action will not lie against the personal representative of the lessor, because “ the covenant in law ends and determines with the estate and interest of the lessor.” Conceding, however, to these cases the full weight of authority claimed for them, although they have been doubted, they do not govern or apply to the case under consideration, because it is clearly distinguishable from them. The principle on which they are founded seems to be that it will only be supposed that a party covenanted for what he could lawfully grant, and that the thing covenanted is within his power, or, as remarked in Bragg v. Wiseman, Brownl. 23, “ that a covenant in law shall not be extended to make one do more than he can, which was to warrant it as long as he lived and no longer.” But by the deed which vested in Wright an estate for life with the power of appointing by last will, the disposition of the property after his death was expressly conferred, so that he had the right and full power to make good the lease during the whole term, and to protect his lessee against any intrusion by the remainder man as effectually as if he had possessed an absolute estate in fee simple. The act necessary to secure the tenant in the full enjoyment of the leasehold for the full term of ten years was within his power, and as it was by his default that the lessee was injured, indemnity ought to be made by his personal representative. It is said by Judge Williams, in his notes to . the case of Holder v. Taylor, Hobart, 47, that if in such case the lease had been made by a tenant in tail, his executor would be liable; upon the principle, we suppose, that the tenant in tail can effectually dock the entail by a common recovery, and in this respect the analogy is perfect.

It may often happen that the application of the rule in Swan v. Searles will work no injury; for as the lessor is released from his covenants, the lessee will be discharged from the further payment of rent; but in this case the lessee was required not only to pay rent and all taxes and to keep the building insured, but to make lasting and valuable improvements, which were to remain on the land to enhance the value of the estate, and under such circumstances it would be a fraud ón him to terminate the lease without compensation, and to sacrifice the improvements he had made. The principles involved in this case are treated in the text and elaborate notes of Rawle on Covenants (p. 472, 480 ; and we have thought it only necessary to state our conclusions, without reviewing the authorities which have been industriously collected and ably discussed by the counsel representing the parties in the cause.

In our opinion the demurrer was improperly sustained, and the judgment therefore will be reversed and the cause remanded.

Judge Napton concurs.

Soott, Judge,

dissenting. I consider that the word “ demise”- or “ grant” as alone being capable of raising an implied covenant on the part of a landlord in a lease. ' This I regard as the settled law, and do not feel myself at liberty to depart from it from any notions of justice or equity I may entertain in relation to the contrary opinion. It is the province of the courts to declare, not to make the law. It seems to me that a principle so well settled can not be overturned but by an act of the legislature. Many persons may have been advised and have drawn their leases in conformity-to the law as it was understood to be, and now to change it would be to subject them to damages contrary to good faith and the understanding of the parties. The idea of making-particular words, and them alone, imply a covenant, is not a novel one. Indeed it has long been found in our code. The words “ grant, bargain and sell,” by our statute create certain covenants. What would be thought of such a construction of the statute as would make any equivalent with raise the same covenants ? By a parity of reason, why why should they not do it ? When the common law among us is fixed and settled, courts have no more authority to disregard it than they have to disregard the statute law. If the common law declares that a particular word is necessary to imply a covenant, courts can no more say that an equivalent word shall have such an effect than they can hold that a word equivalent in import to a statutory word, which is made to create a covenant, shall have the force of the statutory word. The reasoning of the case of Frost v. Raymond, 2 Caines, 188, is strong in corroboration of the views here presented. It was there held that the words “ grant, bargain, sell, alien and confirm,” in a conveyance in fee, do not imply a covenant ; that it was implied by the word “ dedi” or “ give.” Chan. Kent observed, “ I am not able to assign a very solid reason for this distinction between the force and effect of the words £ give’ and ‘ grant.’ It arose from artificial reasons derived from the feudal law. The distinction has now become merely technical, but it is sufficient that it clearly exists and we are not certainly at liberty to confound the words or change their established operation. It is our duty to acquiesce in the law as we find it.”

The reversal of this judgment will in my opinion involve the violation of another principle of law as well established as any that prevails. To it there is no qualification or exception to be found in the books so far as I have been able to find. The principle is this, that an implied covenant determines with .the interest of the party out of whose estate it arises. Hence if a party take a lease for a certain term under an impression that the lessor is tenant in fee when in fact he is only tenant for life, the right of suing on that covenant will be' defeated by the lessor’s death, and the lessee left without remedy on eviction by the remainder man. Here the lessor or covenantor had an estate for life; he is dead, and,.even if there was an implied covenant, as the estate to which the covenant was annexed is determined, no action can be maintained against the lessor’s representatives. The authorities on this point all concur, and come down in an unbroken series from the earliest times to the present day. (Swan v. Stranham or Scarles, 3 Dyer, 257; Adams v. Gibney, 6 Bing. 156, 666.) I can not perceive how the principle can be affected by the fact that Christy, by a power of appointment, with which he was clothed, might have converted his life estate into a fee simple. He was under no obligation by contract to exercise that power; and how can his failure to do an act which he was not bound to do affect his rights ? In every case where the landlord fails to give a covenant for quiet enjoyment, he has it in his power to make good to the tenant any loss he may sustain by reason of his not having such a covenant. But will this ability affect his rights or change the nature of the liability he has incurred by reason of his contract ? I am aware of no principle by which such a result can be produced.

I am in favor of affirming the judgment.