source: Caselaw Access Project

author: Leonard, Judge, Scott, Judge.

license: Public Domain

text:
    Pacific Railroad, Defendant in Error, v. Hughes, Plaintiff in Error.
    1. The acceptance by the Pacific Railroad of the act of March 1,1851, amendatory of its original charter, did not discharge one, who had previously made a subscription to the capital stock of said company, from his obligation to pay calls regularly made upon such subscription 5 nor did the act of December 25,1852, (Sess. Acts, 1853, p. 10,) in so far as it fixed the location of the Pacific Railroad. (Renshaw v. Pacific Railroad, 18 Mo. 210, affirmed.)

      2. When legislative changes in a charter of incorporation of a railroad are such as consist only of an increase of the corporate powers, or of a different or. ganization of the corporate body, leaving it with lawful power to execute what may be considered as substantially the original object of its creation? one who has previously subscribed to the stock of said railroad company can not set up such changes as a defence at law to an action for calls upon such subscription of stock. The remedy, if any, is in equity.

      Error to St. Louis Court of Common Pleas.

    This was an action brought by the Pacific Railroad to recover calls made upon a subscription of ten shares of stock of plaintiff taken by defendant, Hughes. The action is founded on the sixth section of the original act of incorporation, approved March 12,1849. (Sess. Acts, 1849, p. 220.) Defendant’s subscription was made February 8, 1850. The defence relied on was that subsequent acts of the legislature, to-wit, that approved March 1, 1851, (Sess. Acts, 1851, p. 268,) and those approved December 25,1852, (Sess. Acts, 1853, p. 10, 363)— being amendatory of the original charter, and haring been accepted by plaintiff without the consent of defendant, had effected such changes in said charter as to discharge the defendant from his obligation to pay subsequent calls upon his subscription of stock.
    The seventh section of the original act of incorporation, (Sess. Acts, 1849, p. 219,) gave to the Pacific Railroad “ full power to survey, mark, locate and construct a railroad from the city of St. Louis to the city of Jefferson, and thence to some point in the western line of Yan Burén county (now Cass county) in this state, with a view that the same may be hereafter continued westwardly to the Pacific ocean.”
    By the ninth section of the amendatory act of March 1st, 1851, the seventh section of the original charter was repealed, and power was given to the company “to survey, mark out, locate and construct a railroad from the Mississippi river, or any other point in the city of St. Louis, on any route the said company may deem most advantageous, to any point on the western line of this state which the said company may select.” By the fourth section of this act, the seventh section of the general act concerning corporations (R. O. 1845, p. 280), which provides that “ the charter of every corporation that shall hereafter be granted by the legislature, shall be subject to alteration, suspension and repeal in the discretion of the legislature,” which was left in full force, as respects plaintiff, by the original act of incorporation, was abrogated as respects said plaintiff.
    By the eleventh section of an act approved December 25, 1852, (Sess. Acts, p. 12,) it was provided that “ the Pacific railroad shall be deemed a railroad beginning in the city of St. Louis, and running westwardly by the way of Jefferson city, and thence along the best and most practicable inland route through the county of Johnson, and terminating at any point in Jackson county which may be designated by the said company, any thing contained in the charter thereof to the contrary notwithstanding.” By the second section of this act it was provided that “ the Pacific Railroad may lay out, construct and maintain a line of railway or branch railroad, with a single or double track, from any point on the main line of the Pacific railroad east of the Osage river, to any point on the western boundary of this state, south of the Osage river, which the said corporation may select,” &c. The tenth section of this act is as follows : “ The said company shall keep separate accounts of the cost of surveying, locating, constructing, maintaining, altering and operating said southwestern branch railroad, and also of the earnings thereof, and may, if the board of directors shall deem it advisable, create a new stock for said branch, and shall apply the same, as well as the proceeds of the lands due to said south-western branch, apd the proceeds of tho bonds authorized by the ninth section of this act, exclusively to the construction of said south-western branch, and pay the dividends declared from the nett profits of said branch to those who shall become stockholders therein, or their legal representatives, according to their respective shares.”
    By section first of another act of the general assembly, approved December 25, 1852, (Sess. Acts, 1853, p. 363,) power was given to the Pacific Railroad company “ to extend and construct a branch railroad from any point on the main trunk line or the south-west line, not nearer than twenty miles of St. Louis, to the Iron Mountain, in St. Francois county, and Pilot Knob, in Madison county, and may extend the same to the Mississippi river, and also to the boundary line of the state of Arkansas ;” “ and the said company shall keep separate accounts of the operations of said branch road, including the cost of construction, and the earnings thereof, and shall make dividends of its nett earnings among the stockholders in said branch and the Pacific railroad,” &e.
    ■The finding of the facts by the court is as follows : “ That the defendant subscribed to ten shares of the capital stock of the plaintiff,, and agreed to pay the calls a'g charged in the petition ; that the various calls set out in the petition were duly made, and that the defendant failed and refused to pay the several calls which the petition charges he failed and refused to pay ; that the several acts of the general assembly stated in the answer were passed amending the charter of said plaintiff subsequent to said subscriptions by the defendant, and that the defendant did not consent to any of said amendatory acts ; that the board of directors of the plaintiff and a majority of the stockholders assented to and accepted said amendments to the charter, and the plaintiff is acting under said amendments. The south-west branch, authorized to be constructed by the act of the general assembly, has been surveyed and located, and the costs of surveying and locating the same, amounting to $40,000, has been paid out of the general funds of the plaintiff. Said branch begins to diverge from the main road at a point about forty miles from St. Louis, and said branch is about 181 miles long. The plaintiff has held no election to obtain the consent of the stockholders to build said branch out of the common stock, and it has not yet been determined whether the said branch shall be built by the creations of separate stock or out of the common stock. A contract has been made by tbe plaintiff for the construction of the said branch, and the work done with reference to said branch has been paid for, thus far, out of the common funds of the plaintiff. Some stock has been subscribed separately for said branches, but nothing has as yet been paid on said stock subscriptions, nor has any of the lands ceded to the plaintiff, for the construction of said branch, been sold. The plaintiff keeps distinct accounts for said branch — accounts entirely distinct from the accounts for the construction of the main road. The said south-western branch is to cost between eight or nine millions of dollars. The plaintiff caused surveys to be made for about sixty miles for the Iron Mountain branch, and paid the expenses thereof. The plaintiff has relinquished the said Iron Mountain branch. The amount of calls due from the defendant to the plaintiff, on defendant’s subscription, was, at the commencement of this suit, two hundred dollars; that the interest on said calls, from the times they were respectively due, amounts to thirty-one dollars. Thereupon, the court declares that the plaintiff is entitled to recover the sum of two hundred and thirty-one dollars and costs.” Judgment was accordingly given for that sum.

      Dayton and Buckner, for plaintiff in error.
    1. At the time of defendant’s subscription of stock the general assembly had power,'under the 7th section of the general act concerning corporations, to alter or modify or amend any charter of incorporation, even against or without the consent of the stockholder. (Renshaw v. Pacific Railroad, 18 Mo. 210.) By the amendatory act of March 1, 1851, this power was abandoned as respects the Pacific railroad. After the passage of this act the general assembly could not make any essential change in the charter of plaintiff, without its consent; nor could the consent of the corporation, or a majority of the stockholders, to such a change, bind any stockholder refusing to ratify the amendatory act. 2. The act of December 25, 1852, worked a thorough and essential change in plaintiff’s powers. It was in fact a new charter. It is no answer to this to say that the company was authorized to keep separate accounts between the main trunk road and the branch road, and could also have a separate and distinct stock. The same company had the construction of both roads, and the mere authority given to the company to determine whether five hundred miles of railroad, instead of two hundred and fifty, should be constructed, and eighteen millions of dollars instead of half that sum expended, was such a change in the contract of defendant as to abrogate it entirely. It has not yet been determined whether new stock shall be issued or not, as authorized by the act of December 25, 1852. All expenses for both roads have, as yet, been paid out of a common fund. 3. Defendant contracted to páy a certain sum towards the construction of one road in this state. He can not rightfully be required, under that agreement, to contribute towards building two roads, with different interests, extending double the distance, and costing twice as much money.

      Glover Richardson and T. T. Gantt, for defendant in error.
    1. The construction of the south-west branch was not to be a burden on the stockholders of the Pacific railroad unless it should be so agreed. This was never done. The case stands thus. The same trustees stand charged with the execution of two separate and different offices. To this there can be no legal objection. The burden of constructing the south-west branch was never assumed either on separate or joint account. There was then no enlargement of the powers, duties or burdens of the Pacific railroad company. 2. It must be shown that the Pacific railroad company has legally bound itself to appropriate defendant’s money to build the south-west branch, or he has no just cause of complaint. 3. The fact that the company may have expended money illegally in making the surveys of the Iron Mountain .railroad, and the south-west branch, will not discharge the defendant from his liability to pay his subscription. 4. The act of December 25, 1852, was either void or not void. If not void, if it was competent for the legislature to pass an act operative, proprio vigore, on the old subscribers, there is an end of the case. If void, then the law has no effect, and every old subscriber may have his remedy, if the company misapply or attempt to misapply the funds receivable for the original undertaking. Should the misapplication have occurred, the directors are liable for a breach of their trust; should it be attempted or contemplated, the remedy is by injunction. 5. The act of 1852 is not obligatory on the company without its acceptance. This acceptance can be made effectually only in one. way; by convening the stockholders and taking the sense of them on the point of acceptance or rejection. This does not appear ever to have been done. Nor does it appear that there has been any certificate of such acceptance filed in the office of the secretary of state, within six months of December 25, 1852. This being so, the act of that date is void, and, so far as the company has been assuming to act under it, their acts have no legal sanction ; but this does not discharge subscribers. (See sec. 15 of Act of December 25.)
   Leonard, Judge,

delivered the opinion of the court.

After the company was incorporated, Mr. Hughes subscribed for the stock, for the calls upon which this suit is instituted. The remedy, by personal action, is given by the 6th section of the charter, which authorizes the company to make calls for the payment of the capital stock as they may deem proper ; and if any stockholder shall fail to pay any such requisition within ten days after the time appointed, to recover the same with interest ; and if not collected, the company may declare the stock forfeited and sell the same.” Subsequently, the amendatory act jof 1st March, 1851, and the two amendatory acts of 25th December, 1852, were passed and accepted by the company ; but the defendant, not having assented to them, insists that the effect of them is, ipso facto, as a matter of law, to discharge him from his obligation to pay the subsequent calls upon his stock, and this is the question we are now called upon to settle.

When an unincorporated joint stock company is formed, the rights of the partners, not only as between themselves individually, but also between each member and the whole body of the subscribers, are usually settled by the articles of association or a deed of settlement. These articles, constituting the association, and regulating not only the powers of the majority, but also the rights of each stockholder, are the constitution of the society, and of course can not be changed without the consent of every member ; and therefore, if the company attempt to appropriate the funds to a purpose not authorized by the articles, or assume powers not conferred by the constitution of the company, the law will protect the minority by an injunction or a decree for a dissolution of the company, and an account and distribution of its effects, as the character of the act complained of may require.

And it may be that the same law ought to prevail when a mere private company, charged with no public duties, and acting alone with a view to the interests of its members, acts under a charter of incorporation, upon the principle that the charter then stands as the constitution of the society in lieu of articles of asssociation, and regulates the rights and duties both of the company and the stockholders, pursuant to their mutual agreement. Accordingly, there are cases in the books of proceedings against incorporated joint stock companies, by individual members, to'restrain the company from misapplying the corporate funds ; and this relief may be extended even to a dissolution of the society, and an account and distribution of its effects, if the case require it, upon the same principles that similar relief is administered in ordinary partnerships.

But it must be observed that there is an admitted distinction between a company acting under mere articles of association and one acting under a charter of incorporation, in reference to the control of the majority over the constitution of the-company. In the one case the articles are inviolable in every particular, no matter how minute, unless a power to alter is expressly given to the company ; in the other, as the Jaw authorizes the government to change the charter, with the assent of the majority, it may be said that there is an implied assent on the part of each stockholder to all such changes. It is insisted, however, that this implied assent does not extend to such fundamental changes as make the amended charter an entirely different enterprise ; changing, for instance, a charter for a canal into one for a railroad or a charter for a road; to accommodate one line of travel, into one for a road for the accommodation of an entirely different line; nor to changes that materially alter the constitution of the society, or greatly enlarge its powers.

In England, however, where private property is, perhaps, as well protected as in our own country, no such limitation appears to be recognized in reference to this implied assent of all the stockholders to future changes in the constitution of the company, made by the government, with the consent of a majority of its members. Accordingly, Lord Brougham, in Ware v. Grand Junct. Wat. Co., (2 Russ. & Mylne, 470,) refused to restrain a railroad company from applying to parliament for an enlargement of its powers and for fundamental changes in its constitution, upon the ground that it was the right of the company to procure these changes, if they desired them; and that all who became stockholders, did so with their eyes open to this power of the majority over the constitution of the society. We remark here, too, that a distinction seems to exist in the English courts between mere private corporations, acting exclusively for the benefit of their members, as banking and other similar companies, and railroad companies, that must be considered as acting partly with a view to the public interest, in consideration of which they obtain from the government the right of taking compulsorily the land of private individuals for the use of the road. (Ffooks v. The Lond. & S. W. Railroad Co., 19 Eng. Law & Eq. Rep. 11.)

But, however all this may be, and recognizing for the purposes of the present case the right of each stockholder to resist fundamental changes in the charter to his injury and against his consent, it seems to us that the American cases that have allowed this matter to be set up at law, as a defence to a suit for calls upon stock taken, have not been very well considered, are without any precedent in the English courts, are not warranted upon just legal principles, and can not be carried out in practice without infinite mischief, not only to the public interests involved in all great works of this character, but also to the private rights of the other members of the company. If the dissenting member is released at law by the mere effect of these fundamental changes, it is because they have of themselves broken up, without any judicial sentence to that effect, the original association, on account of the inability or unfitness of the corporation, as now constituted, to execute the original purposes of the association. It is very evident, however, that whenever this question is to be discussed and settled, there are other parties interested in it besides the complaining stockholders and the corporate body. The members of this company have agreed with one another to construct a railroad out of a joint fund, to which each has contributed in proportion to the share he is to have in the work when completed ; and it is not and ought not to be in the power of any one or more of the partners, at pleasure, to break up this undertaking by withdrawing the fund already advanced ; or, which is the same thing, by withholding what he has agreed to contribute; nor ought the courts of justice, by their judgments, to produce this result, unless in a case proper for such relief, and in which all the interests to be affected are represented before the court. Whether, however, the alleged changes in the constitution of this company, procured, or at least assented to by a majority of the company, are of such a character as to warrant the interference of the courts at the instance of a dissenting stockholder, by injunction against a probable misapplication of the funds, or by a decree for a dissolution of the original association, on account of the unfitness or inability of the corporation, as now constituted under the amended charter, to execute the original purpose of the partners, need not be now determined. In the view we take of the case, it is enough — yielding to this stockholder all the rights that he would have in a private joint stock company, acting under voluntary articles of association— without any power in the company to change the objects of association, or alter, in the least, the constitution of the society— that his remedy for a wrong of the character of the present one, is a suit in equity, in which all the parties in the matter to be litigated may be heard, and complete justice done to all upon the final determination of the case. And to this view of the subject we incline, notwithstanding some of the American cases to which we have been referred hold quite a different doctrine, and allow fundamental changes in a charter to be used by a stockholder as a defence at law against subsequent calls upon stock previously subscribed, but with considerable difference of opinion as to the character and extent of the changes necessary to produce this result.

In reference to this defence at law, we remark, that the only cases we have found in which the relief was actually granted upon the ground suggested, are, The Union Lock & Canal Co. v. Towne, 1 N. H. 44; Hartford & N. H. Railroad v. Croswell, 5 Hill, 385; and Winter v. The Musco. R. Co., 11 Geor. 451 ; although, in the cases of Indiana & Ebensburg Turnp. Co. v. Phillips, 2 Penn. Rep. 184; Penn. & Ohio Can. Co. v. Webb, 9 Ohio, 139; Barrett v. Sangamon & Alton Railroad, 13 Illinois, 505, and Green. & Col. R. Co. v. Coleman, 5 Rich. 140, the general doctrine is recognized upon the authority of previous cases in Massachusetts, New Hampshire and New York, but not applied on account of the character of the charges made.

In the New Hampshire and New York cases, the stockholders were discharged at. law from the calls upon their stock, because the legislature had subsequently increased the power of the company, in one case, authorizing it to purchase a hundred instead of six acres of land; and in the other, allowing it to run a line of steamboats from the termination of their road ; and in Georgia, the original termination of the road was changed to a new point, fifty miles short of it, and in a different direction. These are, it is believed, the first cases in which this doctrine was put in practice, and the authorities referred-to for it are two cases from Massachusetts, Mid. Turnp. Co. v. Locke, 8 Mass. 268, and Med. Turnp. Co. v. Swan, 10 Mass. 384 ; a case from New York, Livingston v. Lynch, 4 John. Ch. Rep. 573, and the case from Pennsylvania, of Ind. and Eben. Turnp. Co. v. Phillips, 2 Penn. 184.

A careful examination of the Massachusetts cases, to which all the others refer, will show, it is believed, that they contain no such doctrine as that applied in the cases that cite them as authority. The only question in them was, whether the company could recover upon an express collateral promise of the stockholder to pay calls ; and while it was holden that it could not, because, under the circumstances attending the promise, it could not be considered as made to the company, it was at the same time admitted that the party was a member of the company as then constituted, and liable as such to all the remedies provided by the charter in respect to calls upon stock subscribers.

The case from Johnson’s Ch. Reps, was a suit in equity, and the decree of the chancellor establishes that in a private joint stock company the majority can not change the constitution of the society as established by its members, without the consent of every one ; and how the case of the Ind. and Ebensb. Turnp. Co. v. Phillips is now considered in Pennsylvania, is shown by the subsequent cases, already referred to, of Irwin v. Turnp. Co., and Gray v. The Monongahela Nav. Co.

The English cases referred to in the briefs, we think, afford no countenance to the doctrine here insisted upon. We remark, however, that there is a manifest distinction between the Georgia case and the cases from New Hampshire and New York. In the former, assuming that there had been a substantial legislative change in the termination of the road, so that it was quite a different enterprise from that originally contemplated, the plaintiff’s right to recover further calls might be repelled upon the ground that, as the company had no power, as now constituted, under the amended charter, to build the road originally designed, it ought not to be allowed, even at law, to collect funds that it could not lawfully use; but, in the other case, the objection is not that tbe funds, if used at all, must be misapplied, but that, as the company is now authorized to do other things, it may misapply them, -or, at least, that it is now so changed in its constitution, that it is an unfit agency to be trusted with the application of the funds originally contributed, and should, therefore, be deprived of all control over them.

We are disposed to think that, in both classes of cases, the better and safer remedy for all persons interested would be a direct proceeding in equity, in which all the necessary parties could be brought before the court; but, without determining this now, we are satisfied' that when the changes are of the character last indicated, consisting only of an increase of corporate powers, or of a different organization of the corporate body, leaving it, with lawful power, to execute what may be considered as substantially the original work, the party can not be relieved at law in a suit for calls upon his stock.

We proceed, therefore, to an examination of the changes here complained of. They are, in the termination of the road, and in the additional powers conferred upon the company, not only to build branches, but also to issue nerv stock, and thereby lessen the relative power of the stockholders.

The original charter was for a “road from the city of St. Louis to the city of Jefferson, thence to some point in the western line of Van Burén (now Cass) county, in this state, with a view to its continuation westward to the Pacific ocean.” The amendment of March 1st, 1851, was from the same beginning, “ on any route the company may deem most advantageous to any point in the western line of this state, which the said company may select;” and the act of 25th December, 1852, provided that the road, beginning at the same beginning, should run “ westwardly by way of Jefferson city, and thence along the best and most practicable inland route through the county of Johnson, terminating at any point in Jackson county which may be designated by the company.”

In Irwin v. The Turnp. Co., (2 Penn. & Watt’s Rep. 470,) it was held that a change in the intermediate points of a road would not release the stockholders from the calls ; and in the Penn. and Ohio Can. Co. v. Webb, (9 Ohio, 139,) it was remarked by the court, even in reference to changes in the terminative points : “ It is not every minute change which will absolve a subscriber from his engagements. In works of this kind, some power of regulation is retained by the legislature— some discretion is confided to agents who execute the details.' When the subscription is general, uncombined with conditions, perhaps the'stockholder has no reason to complain of any line of transit which starts from the same point of business, accommodates the same line of travel, and substantially subserves the same general interests.” The only objection, however, that could be taken here, in reference to the legislative change in the position of the road, is to that made by the act of 1st March, 1851 ; but it was decided here, in the Pacific Railroad v. Renshaw, (18 Mo. 210,) that that change did not release the stock subscribers, and there is no pretence for insisting that the subsequent change in the location of the road, made by the act of 25th December, 1852, had that effect. That act only designated one of the many routes that it was competent for the company to select under the act of March, 1851, and by accepting the amendment of 1852, and thereby selecting the route there indicated, the company only exercised the power of selection they had under the act of March, 1851.

In reference to the other amendments, it is seen that they do not put it out of the power of the company to apply the fund to the purpose for which it was subscribed, and therefore these changes, under the view we have taken of the law, constitute no defence in this action.

If the company are about to misapply the funds to the injury of any stockholder, his redress is by a direct proceeding to restrain such misapplication; and if the company can not now be safely trusted with the funds, on account of the changes in its constitution, or if it has conducted or is now so conducting the affairs of the stockholders as to show that a continuation of the association can not result in effecting its original purpose, and the stockholders, in a public corporation of this character, are entitled to the same relief to which they are entitled against a private joint stock company, (about which we refrain from expressing any opinion,) the remedy is a direct proceeding to which all the associates are made parties, either individually or by representation, and where proper relief can be administered to the complaining party, according to the exigency of the case, and consistently with the rights of others.

The result is, Judge Ryland concurring,

that the judgment must be affirmed.

Scott, Judge.

The question involved in this case seems to be well settled in the American courts. That a material alteration in the charter of a corporation, which is its fundamental law, will discharge a stockholder from future liability for calls on his subscription, previously made, when the alteration is effected without his consent, stands on principles of law long recognized, and founded in justice. I do not find that there is any contrariety of opinion on the subject. Courts have differed as to the extent of the change in a charter which will produce this consequence, but all of them unite in sanctioning the general rule. Although a stockholder is a member of the corporate body, yet there is an individual contract between him and that body which is defined by the terms of the charter existing at the time of his subscription. He agrees to pay his money for a specified purpose, and for that alone, and on no principle of law or justice can the corporation, without his consent, change the purpose to which he agrees it shall be applied and yet compel its payment. A payment coerced under such circumstances, would be arbitrary and tyrannical and abhorrent to all our notions of the sanctity of contracts. It is no answer that the stockholder was aware that a majority of the corporation could apply for and obtain from the legislature á change of its powers and objects. The legislature may change the charter, but it has no power to vary the contract of the stockholder against his consent. If a corporation will, against the wishes of its stockholders, obtain a material change of its fundamental law, it must be content to lose the subscriptions which had been previously made. It is for the interest of corporations that such should be the law. What prudent man would invest his money in an enterprise which he has well considered and deemed profitable, if, at any moment after-wards, a majority of those with whom he is associated may change the character of the enterprise and compel him to pay his money in an adventure which his judgment condemns and which he sees would end in ruin ?

As this is a matter of some moment at this time, it may be as well to refer to some of the cases which have been decided in relation to it. As far as I have examined, they are of one tenor. In the case of the Middlesex Turnpike Cor. v. Locke, (8 Mass. 268,) it was determined that where the directors of a turnpike corporation, with the assent of the corporation, procured an act of the legislature, altering the course of the turnpike road, one who, before such alteration, had subscribed for a share and had expressly promised to pay all assessments, was held not to be answerable in an action for the assessments. The court said the plaintiffs rely on an express contract, and they are bound to prove it, as they allege it. Here the proof is of an agreement to pay assessments for making a turnpike in a certain specified direction, and of the making a turnpike in a different direction. The defendant may truly say, non hxc in fender a veni. He was not bound by the application of the directors to the legislature for the alteration of the course of the road, nor by the consent of the corporation thereto. Much fraud might be put in practice under a contrary decision. The same doctrine is maintained by the same court in the subsequent case of the Middlesex Turnpike Corporation v. Swan, (11 Mass. 393.) In the case of the Hartford & New Haven Railroad Co. v. Croswell, (5 Hill, 383,) the Supreme Court of New York held that, if a corporation procure an alteration to be made in its charter, by which a new and different business is superadded to that originally contemplated, such of the stockholders as do not assent to the alteration will be absolved from liability on their subscriptions to the capital stock, especially if the alteration be one plainly prejudicial to their interests. In this case, the court remarked: “ It is most obvious, if incorporated companies can succeed in establishing this sort of absolute control over the original contract, entered into with them by the several corporators, there is no limit to which it may not be carried, short of that which defines the boundary of legislative authority. The proposition is too monstrous to be entertained for a moment. Corporations possess no such power. The original charter is the fundamental law of the association, the constitution which prescribes limits to the directors, officers and agents of the company not only, but to the action of the corporate body itself, and no radical change or alteration can be made or allowed by which new and additional objects are to be accomplished, or responsibilities incurred by the company so as to bind the individuals composing it, without their assent.” In New Hampshire, in the case of the Proprietors of the Union Locks & Canals v. Towne, (1 New Hamp. 44,) it was determined where an individual had contracted to take a share in a corporation created for the purpose of making a river navigable, and empowered to hold real estate not exceeding six acres, and to collect a toll forty years, not exceeding twelve per cent, per annum on the amount of money expended, and afterwards, the legislature, upon the petition of the corporation, but without the assent of the individual, authorized them to hold real estate to the amount of one hundred acres, and to collect a toll unlimited as to its amount and duration, that the individual was discharged from his contract and not liable for any subsequent assessment on the share. The court observed, the opinion being delivered by Judge Woodbury, that, to make a valid change in this private contract, as in any other, the assent of both parties is indispensable. The corporation, on one part, can assent by a vote of the majority ; the individual on the other part, by his own personal act. However the corporation then may be bound by the assent to the additional acts, this defendant, in his individual capacity, having never consented to either of them, is under no obligation to the plaintiffs except what he incurred by becoming a member under the first act. Consequently, the assessments sued for, if raised to advance objects essentially different from those originally contemplated, are not made in conformity to the defendant’s special contract with the corporation ; and this action, sustainable on that contract alone, cannot be supported.” In Georgia, in the ease of Winter v. The Muscogee Railway Co. (11 Ga. 450,) it was decided that, where a charter was granted to build a railroad between certain points, and the defendant subscribed for shares of sto'ck, and afterwards the charter was amended by changing one of the termini of the road, running it in a direction different from that contemplated by the original, charter, the defendant was released from the payment of his subscription, as he had not consented to the alteration.” The court said “ that corporations can exercise no power over the corporators beyond those conferred by the charter to which they have subscribed, except on the condition of their agreement and consent. That, although alterations may be made in the charter of an incorporated company, in furtherance of the designs and objects of the company, yet in all such cases due regard must always be had to the inviolability of private contracts. The original contract of the parties can not be materially or essentially altered by an amended charter, so as to bind subscribers thereto without their assent.” The doctrine maintained in this opinion is recognized in Illinois, in the case of Barret v. The Alton & Sangamon Railroad Co., (13 Ills., 508.) On this question similar views are expressed by the court of Ohio, in the case of The Penn. & Ohio Can. Co. v. Webb, (9 Ohio, 136) ; also by the court in Vermont, in the case of Stephens v. Rutland & Burlington Railroad Co., reported in Wharton’s Law Register for January, 1853. The court in Pennsylvania, in the case of the Turn. Co. v. Phillips, (2 Penn. & Watts, 194,) maintain the same doctrine; nor do I conceive that there is any thing inconsistent with the principle therein declared in the subsequent case, in the same book, of Irwin v. The Turnpike Co., 470.

I do not understand that the law in England, in relation to this question, is different from that maintained in the courts o£ the United States. This may be inferred from the cases of the Midland Great West. Railway Co. v. Gordon, (16 Meeson & Wellsby, 803,) and Davis v. Hawkins, (3 M. & Sel. 488.) I do not consider that the case of Ware v. The Grand Junction Water Works Co., (2 Rus. & Mylne, 470,) contains any thing at variance with the principle above stated. That was no action on a contract. The law applicable to contracts had nothing to do with it. That was an application by the stockholders to a court of Chancery to restrain the corporation from applying to parliament for an enlargement of its powers. Corporations may undoubtedly apply to the legislature for an extension of their powers, but they must take the consequence of such extension when it materially and essentially varies the purposes and objects of the original charter. What redress is it to a party if he is compelled to pay his-money in the first instance, and then to apply to a court for an injunction to restrain its improper application ? If collected, it can not be applied to the original purposes of the corporation, for they are materially changed ; and so if the company is restrained, it must lie idle in its hands, and if so, it should not be received, as in equity and justice it ought to be returned to the stockholder, as it can not be used for the purpose for which it was agreed to be paid.

In my opinion, the change in the charter was of such a character as justified the subscriber in withholding the payment of his calls, and therefore the judgment should be reversed.


author: Scott, Judge,

text:
    Speck, Appellant, v. Wohlien and Wolff, Respondents.
    1. Whenever by the rules of equity a party is entitled to have a right to land vested in him, the remedy may he had, in St. Louis county, in the Land Court.
    2. Where a sale of real estate of a decedent has been made under an order of the probate court for the payment of the debts of said intestate’s estate upon a petition of the administrators, and the sale has been approved by said court, but the administrators have refused to make a deed of the land sold; held, that a court of equity can not compel the administrators to make a deed to the purchaser, nor can it, by its decree, vest the title to the land in said purchaser.
    3. Where a sale of real estate of a decedent for the payment of debts is approved by the probate court at the same term during which the sale takes place, the heir, not having notice of such approval, so that he is deprived of his appeal, may call in question such approval in a suit brought against him by the purchaser for a devestiture of title.

      Error to St. Louis Land Court.

    This was a suit instituted by Ann C. Speck, against L. Rudolph. Wohlien as-the only heir of Diedrick W. Wohlien, and also of Anna Wohlien, his wife, and against John Wolff, as the surviving administrator of the said Diedrick W. Wohlien. Plaintiff, in her petition, prayed that the title to a certain lot, situate in the St. Louis common, might be vested in her, the said plaintiff.
    The facts, as they appeared in proof on the trial, are as follows : The city of St. Louis, by deed dated May 22d, 1842, demised to Diedrich W. Wohlien lot No. 5, in block No. 14, of the St. Louis common, containing 3 5T-100 acres, at an annual rent of $45 52; that being five per cent, upon the amount bid ($910 35) for said lot by him at a public sale. Wohlien had the privilege of at any time paying the amount of his bid, and upon so doing would have been entitled to receive a fee simple deed from the city. At the end of fifty years from the sale, and at the end of every fifty years thereafter, the lot was to be valued, and the said Wohlien was to pay as a yearly rent thereafter five per cent, upon such valuation.

      The said D. W. Wohlien died about August 13th, 1842, leaving the respondent, L. Rudolph Wohlien, his only heir. His widow, Anna Wohlien, and the respondent, John Wolff, administered on his estate. At the December term, 1844, of the St. Louis Probate Court, said administrators presented their petition for the sale of so much of the real estate of their intestate as would pay the remaining debts due from his estate. After-wards, all the steps required by law having been duly taken, said court, at its March term, 1845, ordered the real estate of the deceased, mentioned in the said petition, and as a part thereof the above described lot, to be sold on the first Monday of June, at the succeeding June' term of said court. Said lot was duly appraised and was valued “ at the sum of $1500 for the fee of the same, the purchase price of the same — $910 35— being yet due to the city, which is included.”
    On the day appointed in the order, to-wit, June 2d, 1845, all the requisites of the law having been complied with, all the right, title and interest of the intestate, in and to the lot in controversy, was duly exposed for sale. It was fully made known and explained to the bidders and others present at the sale, that there was due to the city on said lot the sum of $910 35, that being the amount of the bid made by the intestate, on which the annual interest, at five per cent., amounting to $45 52, was payable to the city in lieu of rent; that the annual interest, $45 52, for the year ending May 2d, 1845, was still due to the city and unpaid ; that these sums would. have to be paid by the purchaser. At this sale, the said Anna Wohlien, one of the administrators, being the highest and best bidder, became the purchaser of said lot, it being stricken off to her at the price and sum of $420. The said administrators made a report of this sale to the probate court, June 6th, 1845, and on the same day said sale was approved by said court.
    It was in evidence that in the settlement of said administrators with the probate court, at its September term, 1846, among the items of debit against their intestate’s estate there was the following: “ Interest to city on real estate from May 2d, 1844, to May 2d; 1845, No. 2, $47 82.”
    It was also in evidence that the sum bid by the said Anna Wohlien, to-wit, $420, was duly paid by her ; that the rent or interest due the city was paid by her, January 7th, 1846 ; that if the said rent was charged by said administrators against the estate of their intestate, it was a mistake; that a final settlement of the estate of the said Diedrich W. Wohlien was made March 25th, 1848, and the administrators were discharged.
    No deed was ever made by the said Wolff to his co-administratrix, the said Anna Wohlien, although the same was demanded soon after the sale by the said Anna. A deed from the said Wolff, joined in by herself, as administratrix, was also demanded, but none was ever made.
    In the year 1846, after the said sale, the said Anna Wohlien executed a deed of relinquishment to the city of St. Louis of said lot, and received in return from the city a conveyance in fee simple of the same. She afterwards, on the 16th of January, 1846, sold and conveyed the said lot to the appellant, Ann C. Speck. She died in 1849, leaving the respondent, L. Rudolph Wohlien, her only heir at law.
    The court below decided that it had no jurisdiction to order or decree a conveyance of the lot in controversy by either of the defendants, L. R. Wohlien and J. Wolff; nor to vest in plaintiff, by its own decree, any right, title or interest which the said D. W. Wohlien had in said lot. Thereupon, plaintiff took a nonsuit, with leave to move to set the same aside, and a motion to that effect having been made and overruled, the case is brought here by appeal.

      T. Polk, for appellant.
    1. The Land Court had jurisdiction of this case, and had power to give the relief prayed for. (Sess. Acts, 1853, p. 90 ; Code of Practice, art. I, § 1 and 2, and art. II, § 1; R. C. 1845, p. 38-50, 634, 330, 331 ; Overton v. McFarland, 15 Mo. 315 ; Miller v. Woodward, 8 Mo. 171; 9 Mo. 339 ; R. C. 1835, p. 156 ; 15 Mo. 225; 1 Story Eq. 529.) 2. The Land Court then having jurisdiction, the plaintiff is entitled to the relief sought. The sale of the lot in controversy was made after all the requisites of the law had been complied with, and having been approved by the court, Anna Wohlien, the purchaser, was entitled to have the title to the lot in question vested in her, and her co-administrator ought to have made her a deed conveying the same to her. He is the proper person to make the deed. (R. C. 1885, p. 53, § 22 ; Sess. Acts, 1851, p. 210, § 2.) But the question is not so much who ought to make the deed, as has appellant a right to the land. She clearly has. The heir and distributee has therefore been made a party. If it be maintained that the power of the administrator to make a deed is a statutory power, and that therefore the Land Court can not interfere with it, it is answered that this is not a case of a defective execution o£ a power. The execution of the power has here been carried to a certain point, and then stopped without cause and against right. The object of this suit is to have the execution carried forward and completed. The purchaser has done all on her part that she was required to do. In the case of Moreau v. Detchmendy, 18 Mo. 522, there was a defective execution of a statutory power. The same is true of the case of Bright v. Boyd, 1 Sto. 486. (See Chance on Powers, 54, 548; Alexander v. Merry, 9 Mo. 514.) 3. If it be objected that the land in controversy did not sell for three-fourths of its appraised value, and that therefore the sale was improperly approved, it is answered that the approval by the probate court of said sale has settled that question forever. Whether the court ought to have approved of the sale can not be inquired into collaterally, as in this case. (See 4 Wend. 436 ; 12 id. 533 ; 8 Metcalf, 361; 2 Raw. 287; 2 Penn. 321 ; 8 Verm. 368; 11 S. & R. 422 ; 10 Pet. 473 ; 2 How. 319 ; 2 Pet. 169 ; 16 Mo. 21; 19 Mo. 96, 621.) The lot was however sold at three-fourths of the appraised value. 4. The objection that the report of the sale ought to have been made by the administrators to the next September term of the probate court, and not to the same June term during which the land was sold, is answered by saying that this is a matter that can not be reached collaterally in this suit. It could be reachéd only by appeal. (R. O. 1845, p. 106 ; 2 Yerm. 253 ; 2 Green’s Ch. R. 147; 16 Mo. 9.) Wolff, the co-administrator, could have enforced the sale against Mrs. Wohlien in a court of equity, by a bill for specific performance. (2 Green’s Ch. R. 156-165; 2 Sto. Eq. p. 87; 6 Wheat. 528.)

      Field and Gibson, for respondents.

       There is no brief on file on the part of respondents, and therefore it is not attempted to set forth the line of argument pursued.

   Scott, Judge,

delivered the opinion of the court.

As to the question whether the Land Court has jurisdiction to afford the relief ashed by the plaintiff, we are of opinion that if a case had been made which would have warranted the equitable relief sought by the plaintiff', the Land Court would have been the proper tribunal to hear and determine the cause. We understand that wherever, by the rules of equity, a party is ■ entitled to have a right to land vested in him, the remedy may be had in the Land Court. It is a mistake to suppose that the mere fact of a final settlement of an estate having been made in the county court, of itself gives a party a claim to relief that he would not otherwise have. Where estates have been settled and distribution made, this court has allowed one having a claim against an estate to come into equity for relief in the first instance, making the personal representatives, heirs and distributees parties, without having his demand first established in a court of law or county court. The Land Court has no jurisdiction of this case in the same sense that no other would have had jurisdiction, because the plaintiff did not show herself entitled to the relief she sought in the way in which it was asserted.

When Wohlien, the father, died, the lot in dispute descended to his son, one of the defendants. Instead of suing the heir or devisee, our law gives a power to the administrator or executor to sell the lands of a deceased person for the payment of his debts by conforming to the regulations prescribed by the statute. To this proceeding the heir is no party except so far as he pleases to make himself one, though he is bound by it when the regular legal steps have been taken to divest his estate. Now an order is made for the sale of a decedent’s land for the payment of his debts. For some reason or other the party purchasing under the order of sale fails to obtain a title to the land he purchased. On what principle can the purchaser call on the heir to perfect his title ? What is the difference between the heir and the debtor in an execution ? May not the heir say that he has had nothing to do with the matter ; that no act of his had been an inducement to the purchaser; that the law allowing a sale of his inheritance prescribes a way by which the purchaser may obtain a deed; he has therefore no right to call upon him for aid, as by no act or demand of his was the purchaser in the situation of which he complains. There is a large class of cases in which third persons are vested with a power to sell the lands of others, and it is no easy matter to distinguish, in principle, this case from any other of that class. An affirmance of the right to relief in this case would, in effect, overthrow the principle that courts of equity will not relieve against a defective execution of a legal or statutory power — a consequence which no one can contemplate without being struck with the inconvenience which may follow from it. The case of Bright v. Boyd, (1 Story’s Rep. 478,) is in point on this subject, and that, too, was the case of a sale of land by an administrator. The giving of a bond was a necessary prerequisite to a sale, and the administrator failed to give one. It was held that the omission, whether accidental or not, could not be treated as a mistake or accident remediable in a court of equity ; that courts of equity-, while they afford relief against a defective execution of a power executed by a private person, yet they can not afford relief against the defective execution of a power created by law, nor dispense with all the necessary formalities. The same principle is recognized in the case of Moreau v. Detchemendy, (18 Mo. 522,) and applied to a deed executed by a sheriff. In this last case, the instrument was inoperative for want of a seal. There can be no substantial difference between a void instrument which has a mere physical existence and no deed at all. The case of Pottinger v. Pottinger, 2 Green. (N. J.) 157, merely shows that an administrator may enforce a contract made to purchase land at his sale under an order of court. Because courts of equity will not enforce the specific performance of a contract unless there is a mutuality of remedy between them, therefore it is argued that chancery would enforce the contract against the heir. But this does not follow. The mutuality would be confined to the administrator and purchaser, and would not extend to the heir, who Lad nothing to do with the contract between them. This is said in answer to the argument resting on this case, and is not intended to sanction the law of it. We do not consider that the case of the Heirs of Pratte v. the Heirs of McCullough, (1 McLean’s R. 69,) though conflicting with'those above cited, as sustaining the plaintiff in her claim to relief. In the case referred to, it would seem that the executor, who alone could make the deed, was dead, and that, perhaps, was the inducement to the opinion, though there seems to be some distinction taken between a defective execution of a power and a defective power, without distinguishing between powers created by law and those deriving their existence from the acts of individuals. The point determined in that case is not in this, and we will express no opinion in relation to it. The petition of the plaintiff states that there is a person in existence from whom she is entitled to a deed, and it does not appear that he has refused it.

The distinction between the case under consideration and that of Frye v. Kimball, (16 Mo.) and similar cases, is obvious. It is one thing to sustain an ancient deed, on which the rights of property repose, against objections which may be urged for its overthrow, and another thing to make a deed, or pass a title when the same objections are urged as reason why the deed should not be executed or the title pass in the first instance. Deeds every day are sustained against objections, which, if they had been urged as a reason why the deed should not have been executed, would have prevailed.

It is maintained that the approval of the sale can not be questioned in a collateral proceeding. Had the approval been made at the term required by law, there might have been some weight in this proposition. The party affected could then have taken his appeal. But the objection here is, that the approval was made at a time when he was not in court and not required to be there ; and as the appeal must be taken at the term at which the approval was made, the party not having notice, and not being present, could not take his appeal. It was held by this court, in the case of Caldwell v. Lockridge, (9 Mo. 358,) and the principle has since been repeatedly recognized, that where an attempt is made to affect a person by a proceeding to which he was no party and of which he had no notice, and from which, therefore, he could not appeal, he may, in a collateral proceeding, treat it as a nullity. In suggesting these considerations respecting the approval, as it now stands before us for our sanction prospectively, we do not wish to be understood as expressing our opinion as to such an approval, already acted upon and consummated in a deed. As before observed, the distinction between the cases is glaring.

We will not undertake to determine whether the defect in the approval may not yet be remedied by the probate court on notice to all those interested, and whether a remedy may not be had otherwise than by a proceeding in the nature of a bill in equity, which we do not think is adapted to obtain the end sought for by the plaintiff.

Judge Ryland concurring,

the judgment is affirmed.


text:
    The State, Respondent, v. Allen, Appellant.
    1. Where a justice of the peace is indicted for misdemeanor in office, it is not necessary that the prosecutor’s name should he endorsed on the indictment.
    2. Whether a justice of the peace, in improperly issuing a warrant for the arrest of an individual, did the same maliciously, is a question for the jury.

      Appeal from St. Louis Criminal Court.

    The defendant, Allen, a justice of the peace, was indicted for misdemeanor in office, in maliciously and without just cause issuing a warrant for-the arrest of one Myers. No one’s name was endorsed on the indictment as prosecutor. It is not necessary to set forth the instructions given by the court. The question of malice was put to the jury very fairly and favorably to defendant.

      U. Wright, for appellant.

      H. A. Clover, for the State.
   Scott, Judge,

delivered the opinion of the court.

We see no error in this record. There was no necessity for a prosecutor. This was an indictment for a misdemeanor in office. The 22d section of the 3d article of the act concerning “Practice and Proceedings in Criminal Cases,” prescribes that no indictment for any trespass against the person or property of another, not amounting to felony, or for the first offence of petit larceny, shall be preferred, unless the name of a prosecutor is endorsed thereon, as such. If the offence of which the defendant is accused is a trespass, it will be difficult to specify one in the code which may not be termed a trespass. That an individual may have been unjustly oppressed by the crime, does not the less make it a misdemeanor in office ? The offence for which a prosecutor is required, is to be determined from the face of the indictment and not from the evidence on the trial.

As to the error assigned, that a new trial was refused, we may remark that there is nothing in this. Whether there was malice in the accused or not, was a question for the jury; and they having found the fact, and the court below having refused a new trial, on no ground can we interfere.

The other judges concur,

and the judgment is affirmed.


author: Ryland, Judge,

text:
    The State, Respondent, v. McQuaig, Appellant.
    1. Where, under an indictment under section 38, of article 2, of the act concerning crimes and punishments, (B. C. 1845, p. 351,) the jury render a verdict against the defendant, and assess his punishment at $300; held, that it is not erroneous to enter a fine of $500 against the defendant.

      •Appeal from St. Louis Criminal Court.

      H. A. Clover, for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant, McQuaig, was indicted for feloniously and wilfully assaulting George Little, in St. Louis county, and with a certain knife, feloniously and wilfully, by his act and procurement, did strike, wound and cut and stab the said George Little on the twentieth day of August, in the year 1854, at St. Louis county, giving to him, the said George Little, then there, with the knife aforesaid, in and upon the right arm, and near the shoulder of him, said George Little, one wound of the length of two inches, and the depth of two inches ; and the jurors aforesaid, upon their oath aforesaid, do say that said George Little, then and there, in manner and form aforesaid, was wounded, disfigured, and did receive great bodily harm, by the felonious act of him, the said Malcolm McQuaig, against the peace and dignity of the state.” This is the substance of the third count in the indictment. The first count charges the assault and the stabbing to have been made by the defendant, “ feloniously, wilfully, on purpose, and of his malice aforethought, with the intent, maliciously, &c., to kill the said George Lit-tie.” The second count omits the malice, but charges the act to have been done “feloniously and wilfully, with the intent to kill.” The defendant pleaded “ not guilty,” was tried and found guilty in manner and form as charged in the third count of the indictment,- and the jury assessed his punishment to a fine of $300.

The defendant moved for a new trial, “ because the verdict was against law, against evidence, and against the weight of evidence ; because the verdict is against the instructions of the court, and is against the provisions of the statute regulating the punishment for the offence charged in the third count of the indictment.”

The court overruled this motion, and sentenced the defendant to pay the lowest fine allowed by law for the offence charged in the third count, which is the sum of $500. The fine assessed by the jury being lower than the lowest amount allowed by the statute for such an offence, viz., $300, the court disregarded so much of the verdict and put the fine to the lowest sum which the statute allows. The defendant prayed an appeal to this court.

The statute regulating practice and proceedings in criminal cases, art. T, § 5, says': “ If the jury assess a punishment, whether of imprisonment or fine, below the limit prescribed by law for the offence of which the defendant is convicted, the court shall pronounce sentence and render judgment according to lowest limit prescribed by law in such case.” This section of the statute sanctions the act of the court, and makes it the duty of the court to treat the illegal fine as a blank, and fill it with the punishment at the lowest limit prescribed by the act for the offence. The offence of the defendant, as charged in the third count of the indictment, (that being the count under which he was convicted,) when punished by fine alone, has its minimum fixed at five hundred' dollars. The punishment may be “ by imprisonment in the state penitentiary not exceeding five years, or in a county jail not less than six months, or by fine not less than five hundred dollars., or by both fine not less than one hundred dollars and imprisonment in a county jail not less than three months.” (38th section, 3d article, crimes and punishments, R. O. 1845, p. 351.) The third count of the indictment is founded on this section.

The record does not show that any exceptions were taken to the admission of any evidence, or to the instructions given by the court to the jury, and the motion for a new trial shows us the causes only complained of here. There is no weight in any of the reasons assigned for anew trial, when compared with the record, and upon the whole case, this court is of opinion that the judgment should be affirmed, which is done accordingly ;

the other judges concurring.


text:
    The State, Respondent, v. Weber, Appellant.
    1. The separation of a jury, in a criminal case, (an indictment for an assault with intent to kill,) after having written down and sealed their verdict and delivered the same to the officer in charge of them, though without consent and without the order of court, is not such misconduct as will authorize the Supreme Court to reverse and remand the cause.
    2. Where, after a prisoner has announced himself ready for trial, and a witness for the prosecution has been examined in chief — all the witnesses for the prosecution having been sworn — it is discovered that the prisoner has never been formally arraigned, and by order of court he is then arraigned and pleads not guilty, and objects to any further proceeding in the cause, asking that he may be discharged; held, 1st, that it is not erroneous, to so cause him to be arraigned; 2d, that it is not erroneous, the jury being re-sworn, to proceed to examine the witnesses for the prosecution, without causing them to be re-sworn.

      Appeal f rom St. Louis Criminal Court.

    The facts sufficiently appear in the opinion, of the court.

      Kribben and Jecko for appellant.
    1. The court below erred in arraigning the defendant after the jury had been empannelled and sworn, and the trial had been proceeded with ; and the discharging of the jury, without their rendering a verdict after the defendant had been put upon his trial under a charge of felony, is tantamount to an acquittal. That an arraignment is necessary, see 1 Chitty Crim. Law, 418; 2 Hale, 216, 218 ; 3 Mod. 265; 1 Show. 131 ; Com. Dig. tit. Indictment, M.; Hale’s P. C. 293. It was erroneous to permit the same jury to be sworn after the arraignment, and after they had heard the evidence of the prosecuting witness. So also to permit the witnesses for the prosecution to be examined without being re-sworn. Up to the arraignment, the proceedings were illegal. 2. The separation of the jury, under the circumstances, is error. (1 Chit. Crim. Law, 634; Dunscombe, 201; 8 Mo. 154; 3 Just. 160 ; T. Raym. 183 ; 4 Bla. Com. 380.)

      H. A. Clover, for the State,
    cited the following authorities : 8 Ohio, 480 ; 11 id. 474 ; 13 id. 492 ; 15 id ; 82 ; 8 Mo. 158, 166.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted for an assault with the intent to kill one Frederick Kolb. The indictment contained three counts; the first count charged the assault and stabbing to have been done by the defendant, with malice aforethought, with intent to kill. The second count with stabbing, with intent to kill; the same as the first count, leaving out the charge of malice. The third.count charges that the defendant feloniously and wilfully, and by his act and procurement, did strike, stab, penetrate and cut the said Kolb, giving to him one wound, of the length of one inch, and of the depth of four inches ; charging that the said Frederick Kolb was then and there in manner and form aforesaid, wounded, and did receive great bodily harm by the felonious act of him, the said George Weber.

There was a trial and verdict of guilty, under the third count, and punishment assessed to six months’ imprisonment in the county jail and five hundred dollars fine. A motion for a new trial was made and overruled, and an appeal taken to this court.

The bill of exceptions shows that when the case was called, the State, by her circuit attorney, and the defendant, who was personally present with his counsel, declaring themselves ready for trial, a jury was lawfully empannelled to try the same. After the trial had progressed and the State had examined in chief the first witness, it was discovered that the defendant had not been formally arraigned. Thereupon the court ordered that the defendant should be formally arraigned, which was done accordingly ; and thereupon the defendant pleaded not guilty. The court then asked the defendant if he was ready to proceed with his trial immediately, to which he answered, “ as ready as he was before.” The defendant did not wish to be understood as waiving any advantage the alleged illegality of the proceedings may allow him. He insisted upon all his legal rights in the premises, and protested against any further proceedings in the case against him, and moved that he be discharged from the offence and go hence without day. The court overruled this motion, and the defendant excepted. The jury were thereupon re-sworn to try the issue, and the witness re-examined in chief, and.passed over to the defendant for cross-examination. The bill of exceptions, in one part, asserts that after the jury were sworn the first time, and before any testimony was given, all the witnesses for the State were duly sworn, but were not re-sworn; yet'the same bill of exceptions, when each witness is introduced, asserts that the witness “having been sworn, testified” as follows. The same entry is made in regard to the defendant’s witnesses. Sometimes the word “ duly” is inserted before the word sworn ; thus, “ having been duly sworn.” The objection appears at the time to have been made by the defendant, and, for aught that appears, the witnesses were properly sworn ; at least the record may be so considered. The party complaining must show by his bill of exceptions, beyond doubt, what he complains of, to be an act of the court on the record, and not leave it a matter for this court to decide, whether the thing be so or not — not leave it in doubt.

The bill of exceptions also shows that the jury, after they had retired to consider of their verdict, and were in charge of an officer of the court, the court having adjourned over until the next day, did agree on their verdict, and did write down and seal it, and deliver it to the marshal to be kept, and then, without an order of the court or the consent of any one of the parties, did disperse until the hour of meeting of the court'in the morning, when they again met in court; and the marshal, in their presence, handed over their verdict to the clerk, and it was read and received as their verdict by the court.

These various matters are alleged by the court for the defendant, in this court, as grounds for reversal of the judgment of the criminal court.

So far as regards the dispersing of the jury, after making up their verdict, sealing it and delivering it to the officer who had charge of them, and then separating until next morning and meeting in court to render their verdict, this act alone will not be regarded as any sufficient reason for setting the verdict aside. The mere dispersing of the jury is not enough to authorize the court to disregard their verdict. This point has been often ruled thus by this court. In two cases, decided at Jefferson city by this court at last term, (State v. Harlow, and State v. Igo, 21 Mo. 446 and 459,) the same doctrine is held. But if there be any reason to believe that the jurors, or any of them, have been tampered with, or improperly influenced, or any wrong means have been exerted over them, in consequence of their thus dispersing, in any manner so as to influence their verdict, then it should be set aside at once. But there is nothing of that character intimated here. There is, then, no ground for reversal, so far as this point extends.

There is nothing in the point of the swearing of witnesses. The state of the record will not justify this court in reversing for this cause, even if it were a good cause when it sufficiently appears upon the record. The defendant and his counsel saw these witnesses sworn ; they knew they weré sworn in his case to testify. Had the slightest intimation been made against their testifying, it could, and out of abundant caution might, have been obviated. But the record shows that the witnesses were sworn.

Upon the subject of arraignment we see no error. The formal arraignment and entering of the plea of not guilty, and the re-swearing of the jury, put the matter beyond cavil. In looking over the whole record, I have been unable to find any act of the court which is calculated to affect, injuriously, the defendant. There is no great necessity of the formal reading of the indictment to the prisoner, while he stands with uplifted hand, gazed at by the crowd; when he appears and enters his plea of not guilty, the trial might proceed without any unnecessary formula of olden times being insisted upon. The principal cause of the arraignment is to identify the prisoner; and when he appears and pleads to the indictment, what cause is there for arraigning him? The instructions were numerous enough to have error in them, being spread over six pages of the record ; yet I find the law, in the main, correctly laid down. The jury might have had some trouble in comprehending the great mass-of it laid before them, yet there is no reason to believe they were misled by it.

Since the doctrine of arraignment has been maintained, I will state my views upon it somewhat more at length. The.term arraignment means the calling of the defendant to the bar of the court to answer the accusation contained in the indictment. (2 Lord Hale’s Pleas of the Crown, p. 216.) Arraigns is ad rationem ponere, to call to account or answer. Lord Hale says that arraignment consists of three things : First, the calling the prisoner to the bar by his name, and commanding him to hold up his right hand, which, though'it may seem a trifling circumstance, yet it is of importance, for, by holding up his hand, constat dé persona indiclati, and he owns himself to be of that name ; second, reading the indictment distinctly to him in English, that he may understand his charge ; third, demanding of him whether he be guilty or not guilty, and if he pleads not guilty, the clerk joins issue with him, cut. prist, and enters the prisoner’s plea, then demands how he will be tried; the common answer is, “ by God and the country,” and thereupon the clerk enters po. se., and prays to God to send him a good deliverance.” Now we find it is not necessary to go through the ceremony of holding up the hand in the case of a peer; nor is it absolutely necessary in the case of a common person, it being sufficient that it appears to the court who is the person indicted. (Lord Delamere’s case, State Trials, vol. 4, p. 211, and Lord Mohun’s case, State Trials, same vol., p. 508.) Now all that is mentioned as the third ingredient of an arraignment is never put upon the record in our courts ; nor is it necessary to ask the prisoner how he will be tried. His plea of not guilty must, as a matter of course, be tried by a jury. In our country, the trial by battel was never recognized nor allowed, hence it never became necessary to ask the prisoner how he would be tried ; there was but one way to try his guilt or innocence — that was by a jury. He could not say “ by God.” Judge Story says, in order to ascertain why this inquiry, that is, “ How will you be tried ?” is made ; it is necessary to state that, anciently, in England, the party accused had his choice of being tried in one of two ways, by battel or by jury. If he chose the trial by battel, he was accustomed to say he would be tried by God ; if by a jury, that he would be tried by the country. (United States v. Gibert et al., 2 Sumn. 68.) The trial by battel now in England is abolished, but the form of arraignment continued. Judge Story says, in all these states of the Union, where the constitution provides that the trial shall be by jury, and the prisoner pleads not guilty, it seems to him to be a mere mockery to ask him how he will be tried, for the constitution has already declared how it shall be. He continues : “ But, be this as it may under the state governments, I am clearly of opinion, that the form is wholly unnecessary, under the constitution and laws of the United States, in the federal courts. The constitution has already declared, “ that the trial of all claims, except in cases of impeachment, shall be by jury. It is imperative upon the courts, and prisoners can be lawfully tried in no other manner. As soon, therefore, as it judicially appears of record that the party has pleaded not guilty, there is an issue in a criminal case which the courts are bound to try by-a jury.” (United States v. Gilbert, et al., 2 Sumn. 69.) Our statute declares that “all issues of fact, in any criminal case, shall be tried by a jury.” It also declares that “ it shall not be necessary, when any person shall be arraigned upon any indictment, to ask him how he will be tried, and if he deny the charge in any form, or require a trial, or if he refuse to plead or answer, and in all cases when he does not confess the indictment to be true, a plea of not guilty shall be entered, and the same proceedings shall be had, in all respects, as if he had formally pleaded not guilty to such indictment.” (Prac. in Criminal Cases, art. 5, sec. 5.) Now I hold it all sufficient, if a defendant, when called to answer an indictment, says he is not guilty. The clerk should enter such plea, and the trial might thereupon proceed. If the defendant wished to hear the indictment read, then it should be read to him before he is called to plead.

Upon the whole record in this case, we think the judgment should be affirmed. Let it therefore be affirmed;

the other judges concurring.


author: Leonard, Judge.

text:
    The State, Respondent, v. Wiedner, Appellant.
    1. Case affirmed, because no exceptions were taken to the action of the court, and no bill of exceptions filed and allowed.

      Appeal from St. Louis Criminal Court.

      H. A. Clover, for the State.
   Leonard, Judge.

The appellant has not furnished us a brief. We have, however, examined the record and find no error in it. No exceptions were taken at the trial and preserved in the record, and of course what occurred there can not be reviewed here.


text:
    The State, Appellant, v. Rowe, Respondent.
    1. An appeal on the part of the State can not he taken in a criminal case, where judgment has been given for the defendant on a demurrer to a plea to the indictment. This is not a case within the 10th section of article 8 of act to regulate proceedings in criminal cases. (R. C. 1845, p. 889.)

      •Appeal from Montgomery Circuit Court.

      H. A. Clover and T. Vanswearingen, for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted, as we are informed, by the record, (though no indictment is set forth,) in the Circuit Court of Montgomery, for taking unlawful toll. The defendant appeared and filed his special plea. The State demurred to this plea, and the court overruled the demurrer, and rendered judgment thereon for the defendant, discharging him from said indictment, at the costs of the State. The State thereupon appealed to this court.

The only question before this courtis, will an appeal be sustained on the part of the State in a case like this ? The statute concerning practice and proceedings in criminal cases must determine this question. Sections 9 and 10 of the 8th article of this act, are as follows : “ Sec. 9. The State, in any criminal prosecution, shall be allowed an appeal only in the cases and under the circumstances mentioned in the next succeeding section. “ Sec. 10. When any indictment is quashed or adjudged insufficient upon demurrer, or judgment is arrested, the Circuit Court, either from its own knowledge, or from information given by the prosecuting attorney, may cause the defendant to be committed or recognized to answer another indictment ; or, if the prosecuting attorney prays an appeal to the Supreme Court, the Circuit Court may, in its discretion, grant an appeal.” Now this case is not within either of the classes mentioned in this 10th section. There is no indictment quashed, nor is there any arrest of judgment, nor has this indictment been held insufficient on demurrer. Then, by the express words of the 9th section, an appeal will not be allowed.

Appeals on the part of the State have frequently been dismissed by this court. (State v. Heatherly, 4 Mo. 478; State v. Spear, 6 Mo. 644 ; State v. Shoemaker, 7 Mo. 286.) This appeal must therefore be dismissed ; it is taken in a case not provided for by the statute.

It is accordingly dismissed,

the other judges concurring.


text:
    Thomas, Respondent, v. Black, Appellant.
    1. The exception in section 7 of article 2 of the statute of limitations of 1845¿ does not apply where the debtor is a non-resident of the state when the cause of action accrues, but only where, being a resident, he is absent.

      Jlppcal from Buchanan Circuit Court.

    This was an action begun October 11,1854, upon a sealed note or bond, dated September 16, 1839, and payable January 1, 1840. The defendant relied upon the statute o£ limitations. It was admitted that, when the note was executed, the defendant resided in Kentucky, where he continued to reside until 1846, when he removed to Missouri, where he has since resided; and thereupon there was a judgment for the plaintiff. The defendant appealed to this court.
    Loan, for appellant.
    This case depends upon the construction of the 7th section of article 2 of the limitation act of 1845, which is materially changed from the corresponding section of the act of 1885, upon which the cases of King v. Lane, (7 Mo. 241) and Tagart v. State of Indiana, (15 Mo.) were decided. ,

      Note__Scott, J., was indisposed during this term. All the cases of this term were prepared for the press by Mr. Sam’l A. Behnett, former reporter.

      Vories, for respondent.
    The statute did not commence running in favor of the defendant until he came to Missouri in 1846. (Tagart v. State of Indiana, 15 Mo. 211; Carter v. Eeland, 17 Mo. 383, and cases there cited ; Angelí on Limitations, § 64 to 68.)
   Ryland, Judge,

delivered the opinion of the court.

In this case, the question arises upon the construction of the 7th section of the 2d article of the statute of limitations of 1845. (R. C. p. 717.) The first section is as follows: “ The following actions shall be commenced within ten years after the cause of such action accrued, and not after. All actions founded on any writing, whether sealed or unsealed, for the direct payment of money or property.” “ Section 7. If at any time, when any cause of action specified in this article accrues against any person who is a resident of this state, he is out of this state, such action may be commenced within the times herein respectively limited, after the return of such persons into the state ; and if, after such cause of action shall have accrued, such person depart from, and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of this action.”

In this case, the parties admit that the cause of action accrued on the 18th day of January, A. D. 1840. It w.as founded on a promissory note ; that when the note was executed in September, 1839, the plaintiff and defendant were both living in the state of Kentucky, and that the defendant continued to live in Kentucky until the year 1846, when he removed to the state of Missouri, where he has ever since resided ; that this action was commenced on the 11th day of October, 1854. The defendant pleaded the statute of limitations to this action. The court found for the plaintiff, and this case is brought here by defendant to have the judgment below reversed.

This case is obviously within the body of the statute. The action accrued in January, 1840, and suit was not brought until October, 1854, more than fourteen years after the cause of action accrued. Now is it within the exception made in the 7th section above quoted ? We think that it is not. The person mentioned, as against whom the cause of action accrues in that section, must, at the time it accrues, be a resident of this state. Then, if he, though a resident of this state, be out of it when the action accrues, the action may be brought within the time limited, after the return of such person into the state. The person must be a resident of this state when the action accrues. Here the defendant was a non-resident: he was living in Kentucky, and there continued to live .until long after the cause of action accrued. He is not such a defendant as the seventh section was designed to embrace ; nor is he embraced by its provisions. Then the statute was in his favor, and the exception does not place him out of the general protection afforded by the .statute. This statute of 1845 differs from the statute of 1835, under which the case of King v. Lane, (7 Mo. 241,) was decided: the words, “ who is a resident of this state ” are not inserted in the act of 1835. This is a material distinction. In the case of Tagart, administrator of Slone, v. The State of Indiana, (15 Mo. 209); the question was not considered as under the act of 1845. Neither the counsel for the parties nor the court make any mention of the statute of limitations of 1845; but the case was determined upon the authority of King v. Lane, under the statute of 1835. The counsel for the appellant did insist upon a review of that decision, and the opinion of this courtis mainly upon that subject. Nothing is said in the opinion in relation to the act of 1845; but the statute of 1835 is quoted and commented upon, and authorities cited to maintain the view of the court, as delivered in the case of King v. Lane, upon the statute of 1835. If, therefore, the decision of the case of Tagart, administrator of Slone, v. The State of Indiana, is to be considered as having been made under the statute of 1835 only, and as confirming the doctrine laid down in King v. Lane, it is correctbut if it be considered as made in reference to the act of 1845, it is incorrect, and must be considered as overruled.

The judgment of the court below must be reversed;

and the other judges concurring, the same is reversed.


text:
    Hook, Plaintiff in Error, v. Turner, Defendant in Error.
    1. The defendant may rely upon the statute of frauds as a defence to a peti tion for the specific performance of a parol contract to convey land, although he does not set it up in his answer, hut simply denies the contract.
    2. A contract in consideration of refraining from bidding at a judicial sale is void.

      jError to Calloway Circuit Court.

    Petition for the specific performance of a contract to convey a portion of land purchased by the defendant at a sale, alleged in the petition to have been made at the court-house door in the town of Eulton for the purpose of distribution among the heirs of Elijah Dawson, deceased. The petition stated that the plaintiff and defendant both wanted a part of the land to be sold, and that it was agreed between them before the sale, that they would run the land up to a certain price, and that defendant should bid in the land in his own name, and should afterwards convey to the plaintiff the part sought to be recovered in this suit, upon the same terms that he himself obtained it, and that the plaintiff had made a tender of the price agreed upon. The defendant, in his answer, denied the contract, as well as the tender. The trial was by the court without a jury, and the facts found as stated in the opinion of Judge Ryland.

      J. F. Jones, for plaintiff in error.
    1. The statute of frauds does not operate in cases of either fraud or trust. (16 Mo. 544; 4 Kent, 305-7 ; 1 Lomax Dig., 200-3; 20 Mo. 84; 15 Yes., 50; 6 B. Mon., 106; 2 Sto. Eq., 759; 1 Johns. Ch’y., 149; 1 Yern., 159; 2 Yern., 445; 4 Conn., 568; 1 P. Wms., 771 ; 1 W. & S., 136 ; 2 Corns., 821; 8 G-ilm., 529 ; 11 Paige, 431.)
    Hardin, for defendant in error.
    1. The relief sought is the performance on the part of the defendant in error of a parol agreement for the conveyance of land. It is not claimed by plaintiff that he had possession of, or made improvements on the land under the agreement; nor that there was even part payment of the purchase money ; nor that defendant even owned the land when the agreement was made. Beyond these facts courts can not compel performance, when the defendant by his answer denies the agreement, or, if admitting it, claims protection under the statute of frauds. (Sug. on Yendors, p. 127 ; 3 A. K. Marsh., 445.) 2. Where no bill of exceptions is preserved, and where the record does not show any exceptions taken by the plaintiff in error to the opinions or decisions of the court, upon motion made by plaintiff, the judgment must be affirmed. (13 Mo. 424.)
   Ryland, Judge,

delivered the opinion of the court.

There are two objections to the relief sought by the plaintiff in this action, both fatal to his right of recovery. In the first place, the contract as set forth in the plaintiff’s petition is a verbal contract, not reduced to writing; nor is there any memorandum or note thereof in writing, signed by any one; it is a verbal contract respecting the sale of land : at least, it is of and concerning an interest in land. It is clearly within the statute of frauds and perjuries. The defendant- denies the alleged contract in his answer. He expressly states that there never was such a contract entered into as set up in the plaintiff’s petition, or any contract of any kind for the land aforesaid by and between plaintiff and defendant.

The court that tried the case found the following facts: That “ Turner agreed with Hook that if Hook would not bid against him for a tract of land, situated between their farms, he would buy the tract, and divide it between them in a manner agreed upon by them at the rate he paid for the tract; Turner bought the land — the plaintiff offered him the money agreed upon for the part he was to have, and the defendant refused to let him have the land. On this state of facts, the court find for the defendant.”

The plaintiff, without making any motion for a review of law or fact, and without any exception taken and saved to any ruling of the court below, brings the case here by writ of error, and relies upon the point, that as the defendant did not plead the state of frauds, he cannot invoke its aid to defeat this suit. But the decisions will not support him in this view. Where the defendant in his answer denies the contract, it is not necessary for him to insist upon the statute as a bar. (Wildbahn v. Robidoux, 11 Mo. Rep. 660.) But the plaintiff, in such case, must produce legal evidence of the existence of the agreement, which can not be established by parol proof. (3 Paige, 481; 2 Paige, 181; 3 A. K. Marshall, 445.) Upon this ground the plaintiff can not recover.

The second ground also is fatal to his right to recover. If the sale at which the land in controversy was sold was a judicial sale, as it seems to have been from the manner the plaintiff has set it forth in his petition, then the contract as alleged by the plaintiff was against public policy, and for that reason the court would not enforce it at the suit of any of the parties. (Wooton et al. v. Hinkle, 20 Mo. 290.) However this may be, the contract is clearly within the statute of frauds, and the court below decided properly in favor of the defendant. The judgment is affirmed ;

Judge Leonard concurring.


text:
    Woods, Christy & Co., Defendants in Error, v. T. W. & J. R. Mosier, Plaintiffs in Error.
    1. The Supreme Court will not disturb a judgment rendered upon an insufficient publication, unless amotion to set the same aside has been made in the inferior court.

      Error to McDonald Circuit Court.

      Hendrick, for plaintiff in error.

      F. P. Wright, for defendant in error.
   Ryland, Judge,

delivered the opinion o£ the court.

The plaintiffs brought their suit, upon a promissory note, against the defendants, in the circuit court of McDonald county. The summons and petition were personally served on one of the defendants, Thomas W. Mosier, and there was constructive service on the other defendant by order of publication in a newspaper. The. circuit court rendered judgment by default against the defendants, and they bring the case by writ of error to this court; and rely upon the insufficiency of the published notice. In looking into the record, it seems that no motion has been made to set aside the proceedings in the circuit court, and until that is done, this court does not interfere to correct the supposed error. (Alexander v. Hayden, 2 Mo. 211, side paging; 10 Mo. 457; 15 Mo. 207, 208.) The judgment must be affirmed;

Judge Leonard concurring. Judge Scott absent.


text:
    G. B. & B. G. Loudon, Defendants in Error, v. King & Starns, Plaintiffs in Error.
    X. A motion to set aside a judgment by default is no part of the record, unless made so by the bill of exceptions.
    2. No finding of facts is necessary upon an assessment of damages after a judgment by default.

      Error to McDonald Circuit Court.

      Gardenhire, for plaintiffs in error.

      F. P. Wright, for defendants in error,
    cited 20 Mo. 263 ; 10 Mo. 257.
   Ryland, Judge,

delivered the opinion of the court.

This was an action for a bill of drugs and medicines, furnished by plaintiffs, as they allege, to the defendants. The defendants failed to appear and answer, though they were served with process. Judgment was rendered against the defendants by default; and the plaintiffs not requiring a jury, they submitted the inquiry of damages to the court. The court assessed the damages of the plaintiffs at the sum of one hundred and twelve dollars and fifty cents. This judgment by default was rendered at the November term of the Circuit Court, for the county of McDonald, in the year 1854. At the May term, 1855, the defendants made their motion to set aside the judgment by default: the court overruled this motion. There are no exceptions taken to any action of the court; no bill of exceptions filed; and yet the defendants have brought this case here by writ of error.

It is not every motion made in a cause that becomes part of the record, even though the clerk should put it down among the proceedings. In order therefore to put the motion made in this case to set the judgment aside on the record, so as to become a part thereof, it was necessary to do so by excepting to the overruling of the motion by the court, and having a bill of exceptions signed, stating that fact. Nothing is saved on this record by which the defendants can raise a question in this court.

Their counsel here insists, that the court failed to find the facts of the case. To that we answer, the count was not trying any issue, as is provided for in the fifteenth article, sécond section, of the Code of Practice; but was merely assessing the damages, as ik was lawful to do, when the plaintiffs submitted the finding of damages to the court, without a jury, under the 12th article of the Code. There is nothing in the transcript showing any error committed by the court, in overruling the defendant’s motion, ’ even if we consider the motion and action on it as forming part of the record proper in the ease. No error has been insisted upon before us, except the failure of the court to find the facts ; which is not necessary in this case, as there was a judgment by default.

The judgment below, must be affirmed;

Judge Leonard concurring. Judge Scott absent.