text:
    Morse, Respondent, v. Brownfield, Appellant.
    1. The technical rules of practice are not applicable to proceedings before justices of the peace.
    2. Where in the trial, before a justice of the peace, of an issue raised by an in-terplea in an attachment suit, the justice entered on his docket the verdict of the jury but omitted to render judgment on it, and the interpleader appealed to the circuit court, where the appeal was dismissed for want of a judgment by the justice; held, that such dismissal was improper.

      Appeal from Pulaski Circuit Court.

      Mitchell & Wingo, for appellant,
    cited Franse v. Owens, 25 Mo. 329; Rutherford v. Wimer, 3 Mo. 12.
   Richardson, Judge,

delivered the opinion of the court.

The history of this controversy is so briefly narrated in the record that it is impossible to see its real merits. It appears however that it is a suit by attachment commenced before a justice of the peace, and that the main issue was made by the interplea of Brownfield, who> claimed the property in the hands of the garnishee. The issue was tried by a jury, who found against the claim, and thereupon the interpleader appealed to the circuit court. The verdict was entered by the justice on his docket, but he omitted to render judgment on it, and for that reason the appeal was dismissed.

It would be unwise and unsafe to apply technical rules to proceedings in justices’ courts, and therefore forms are disregarded when it can be seen that the law has been substantially observed.

A justice of the peace is required to enter the verdict of a jury on his docket and to render judgment accordingly ; and, having no control over verdicts and no discretion to exercise on the subject, the duty of giving judgment on a verdict is peremptory and ministerial in its character. It has therefore been decided that the effect of a formal judgment ought to be given to a verdict as soon as it is entered on a justice’s docket. (Rutherford v. Wimer, 3 Mo. 12; Franse v. Owens, 25 Mo. 329.)

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


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    Williams & Wyan v. The Judge of the Cooper Court of Common Pleas.
    1. A mandamus, as a general rule, will not issue unless the party asking it has a clear right and no other specific legal remedy; it will not be granted to bring under review the proceedings of an inferior court on the ground of error, and therefore it will he refused in a case in which a writ of error will lie, or where the party can he redressed by appeal.

      Stephens & Vest, for petitioners.
    I. The court properly assessed the damages and rendered judgment at the first term. . (20 Mo. 96; R. C. 1855, p. 356, 1222; 24 Mo. 27; 6 J. J. Marsh. 354; 4 Monr. 415 ; 1 B. Mon. 150 ; 22 Mo. 433 ; 6 How. Pract. R. 326.)

      II. The attorneys who filed the motion, in the name of defendant, to set aside the judgment and quash the execution, had no right to appear for the defendant or to make any such motion. (Keith v. "Wilson, 6 Mo. 435 ; 3 Monr. 190.)
   Richardson, Judge,

delivered the opinion of the court.

Williams and Wyan filed their petition in the Cooper court of common pleas, on an open account for lumber sold and delivered, against the Central Agricultural Society, which is a corporation, but the summons was issued against N. G. Elliott and Wm. H. Trigg. At the return term of the writ an entry appears in these words : “ The defendant, by N. G. Elliott, the president of said society, now here enters its appearance and waives its right to a continuance.”

Afterwards, during the same term, the record shows that the parties came, and by consent submitted the case to the court; whereupon the damages were assessed without a jury, and final judgment rendered, for the amount claimed in the petition. On this judgment an execution was issued, and at the return term thereof, in January, the defendant appeared by attorney, and on its motion, after notice to the plaintiffs, the court quashed the execution and set aside the judgment rendered at the previous November term. To this decision the plaintiffs excepted and filed their motion for an alias execution, which was denied, and they now apply for a mandamus to compel the court to issue another execution.

The writ in this case was void because it was not issued against the defendant; but as the president was the proper officer on whom to serve any process against the defendant, (1 R. C. 1855, p. 376,) his appearance in court on behalf of the society was sufficient to give the court jurisdiction of the parties and the cause. (Chamberlin v. Mammoth Mining Co. 20 Mo. 96.)

Any irregularity in giving final judgment at the return term was cured by the mutual consent of the parties; (Boernstein v, Heinrichs, 24 Mo. 27;) and, conceding that it was improper to assess the damages before a default had been taken, the judgment was not void for that reason. During the term at which the judgment was rendered the power existed to modify or vacate it, as the record remained in the breast of the court; but as the judgment was not void, and at most was only erroneous, we think that the court improperly set it aside. (Ashby v. Glasgow, 7 Mo. 320; Hill v. City of St. Louis, 20 Mo. 584.) The effect of the order made at the January term quashing the execution and vacating the judgment of the previous term was to dismiss the suit, and it therefore operated as a final judgment, on which a writ of error will lie. It is a general rule that a mandamus will not issue unless the party asking it has a clear right and no other specific legal remedy. It will not be granted to bring under review the proceedings of an inferior court on the ground of error, and therefore it will be refused in a case in which a writ of error will lie, or where the party can be redressed by appeal. (6 Bacon’s Abr. tit. Mandamus, C.; Hoyt ex parte 13 Pet. 279; Nelson ex parte, 1 Cow. 417; People v. Judges of Dutchess, 20 Wend. 658; Gordon ex parte, 2 Hill, 363; The Councils of Reading v. Commonwealth, 11 Penn. 196; James v. Comm’rs of Bucks Co. 13 Penn. 72; Marshall v. State, 1 Smith, 17.)

The petition will be overruled.

The other judges concur.


author: Richardson, Judge, Scott, Judge.

text:
    Martin, Respondent, v. Martin’s Administrator, et al., Appellants.
    1. A finding of the facts made by a court in a suit instituted since the revised code of 1855 vrent into effect, being unauthorized by law, forms no part of the record of the cause and can not he referred to in the supreme court for any purpose.
    2. Amendments should he liberally allowed in furtherance of justice.

      Appeal from Platte Circuit Court.

      Spratt & Merryman, for appellants.
    I. The court erred in not permitting defendants to amend their pleading so as to include the sum of sixty dollars proven to have been paid on said notes.

      Ewing, for respondent.
    I. The court had no right to allow the amendment. It was proposed after the evidence was closed, and changed the defence in matter of substance. (2 R. C. 1855, p. 1855, sec. 8.) But had it been such an amendment as the court in its discretion could have permitted, the refusal to do so would not be interfered with by this court. Amendments are peculiarly within the, discretion of the inferior courts. (16 Mo. 226 ; 21 Mo. 585; 23 Mo,. 22T.)
   Richardson, Judge,

delivered the opinion of the court.

The practice of finding the facts in cases tried by the court without the intervention of a jury no longer obtains, and such cases, in which instructions are neither asked nor given, will not be reviewed in this court except on questions of law duly saved during the progress of a trial; and the finding of facts by the court can not be referred to for any legitimate purpose, as it has not properly any place under the present law in the record. A case then submitted to the court without a jury must be treated in all respects as if it had been tried by a jury, and this court will not interfere except for such errors as will authorize the reversal of a judgment on the verdict of a jury. This point has been so often decided that it is too well settled to be discussed.

This case was submitted to the court without instructions, and only two questions are presented in the record, which are, first, the refusal to permit the defendants to amend their answer, and, secondly, the overruling of the motion for a new trial. In regard to the latter, it is sufficient to say that the evidence is not of such a preponderating character as to warrant the conclusion that it did not support the judgment; but as to the other exception, we think it was well taken.

The object of the suit was to foreclose a mortgage given to secure two promissory notes.. The mortgagors sold the property after the execution of the mortgage, and their ven-dees were made defendants, who set up in their answer several payments that had been made on the notes. The plaintiff’s agent, on his examination as a witness, not only proved the payment, on the plaintiffs’ account, of one hundred and seventy-five dollars to Wilcox, as a credit on the notes, which was set up in the answer and denied by the plaintiff, but he also proved the additional payment of sixty dollars which had been received as a credit on the mortgaged debt; thereupon, when this fact was disclosed on the trial the defendants asked leave to amend their answer so as to include this sum, but the court refused to allow the amendment.

The purchasers of the mortgaged premises having acquired the property subject to a lien, were directly interested in reducing the amount of the incumbrance, and they had the right to have any payments applied to its extinguishment which had been made on account of it. They were not presumed to know all the payments that had been made by the mortgagors, and they had no motive to suppress, until the trial, the knowledge of any payments that belonged to the debt; and as the credits to which the debt was entitled could not properly be claimed as set-offs, but were only available n a defence as payments, the effect of refusing the amendment was practically a gratuity of sixty dollars to the plaintiff, and an absolute loss to the defendants.

Our liberal system of practice encourages amendments when they can be made to aid the administration of justice consistently with the rules of law and the rights of the parties ; (2 R. C. 1855, p. 1253;) and, though it is with great hesitation that this court will interfere with the exercise of the discretion of inferior courts on this subject, we think that the circumstances of this case call for our interposition» The amendment, of course, should only have been made on terms that would have prevented a surprise or an injury to the plaintiff.

The judgment will be reversed, and the plaintiff having remitted sixty dollars, to be credited at the time it was paid, judgment will be rendered in this court, deducting the credits allowed in the circuit court and the said sixty dollars.

Judge Napton concurs.

Scott, Judge.

I concur in reversing the judgment and for rendering judgment in this court.


text:
    Brosius, Appellant, v. McGaugh, Respondent.
    1. In cases commenced since the revised code of 1855 went into effect, (May 1, 1856,) the courts are not authorized to mate findings of facts; if made, they do not form part of the record, and -will not he regarded hy the supreme court for any purpose.

      Appeal from Daviess Circuit Court.

      E. B. Ewing, for appellant.
   Richardson, Judge,

delivered the opinion of the court.

The practice of finding the facts in cases tried without a jury has been abolished, and in a case therefore commenced since the revised statutes of 1855 took effect, the finding of the facts'by the court can not be regarded for any purpose, as it has no place in the record. (Martin v. Martin’s adm’r, 27 Mo. 227.) Under the code of 1849 the finding was required to state facts and not the evidence ; and it was never the office of a finding to set out the evidence, and it was never treated as a bill of exceptions containing the evidence. The record in the case calls for a bill of exceptions, but" an examination of it will show that none of the evidence is preserved unless it can be inferred from the finding. The evidence then not being preserved, the instructions can not be reviewed. (State v. Vaughn, 22 Mo. 20.) The other judges concurring, the judgment will be affirmed.


text:
    The State, Respondent, v. Gregory, Appellant.
    1. An indictment, founded on section 1 of the act regulating dram-shops, charging that the defendant, on, &e., at, &c., sold intoxicating liquors, to-wit, one quart of whisky, “ without having any license for that purpose continuing in force during all that time authorizing him so to do,” &c., is sufficient; it sufficiently negatives any legal authority on the part of defendant to sell intoxicating liquors.

      Appeal from Laclede Circuit Court.

      Wood, for appellant.
    I. The court erred in overruling the motions to quash and in arrest. (State v. Brown, 8 Mo. 210 ; Neals v. State, 10 Mo. 499; State v. Black, 9 Mo. 681.) The indictment must negative every license specifically authorizing the sale of intoxicating liquors; (State v. Haden, 15 Mo. 447;) also every other legal authority for selling. (24 Mo. 363 ; State v. Sutton, 25 Mo. 300; see also 1 R. C. 1855, p. 685.)

      Ewing, (attorney general,) for respondent.
    I. The indictment was good.
   Richardson, Judge,

delivered the opinion of the court.

The defendant was indicted under the first section of the act concerning dram-shops, which declares that “ no person shall directly or indirectly sell intoxicating liquors in any quantity less than one gallon without taking out a license as a dram-shop keeper. (R. C. 1855, p. 683.) The indictment charges that the defendant, on the 1st of August, 1857, at Laclede county, sold intoxicating liquors, to-wit, one quart of whisky “ without having, any license for that purpose continuing in force during all that time authorizing him so to do,” &c. It was objected, in the motions to quash and in arrest, that the indictment did not sufficiently deny any legal authority to the defendant to sell intoxicating liquors; but we think the right to sell is sufficiently negatived by the averment that the defendant did not have any license for that purpose. The 18th section of the dram-shop law contains an exception to the general prohibition, and permits intoxicating liquors to be sold in any quantity not less than a quart at the place where made, provided that the maker or seller does not permit the same to be drank at the place of sale. The exception is by way of proviso, and need not be noticed in the indictment, but must be insisted on as a defence. (Tracy & Wakrendorff v. State, 3 Mo. 1.) The judgment will be affirmed;

the other judges concurring.


author: Napton, Judge,

text:
    The State, Respondent, v. Crabtree, Appellant.
    1. An indictment founded on the 36th section of the 8th article of the act concerning crimes and punishments (E. C. 1856, p. 631) charging that the defendant, on, &c., at, &c., “ did then and there unlawfully keep open a grocery by then and there permitting persons to enter said grocery and then and there to drink intoxicating liquors,” is good.
    2. To authorize the conviction of a grocery-keeper on such an indictment, it is not sufficient that he permits persons to enter his grocery on Sunday and to drink intoxicating liquors there; it must appear that the acts done by him are done for the accommodation of customers and in continuation of the usual business of the week.

      Appeal from Laclede Circuit Court.

    Wright, for respondent.
    I. Both counts in the indictment are bad. The motion to quash should have been sustained.
    II. The instructions on the part of the State were wrong, and those asked by defendant should have been given.

      Ewing, (attorney general) for the State.
    I. The indictment is sufficient. (R. C. 1855, p. 631, sec. 36 ; State v. Buford, 10 Mo. 703 ; State v. Sutton, 24 Mo. 377.) The instructions given to ■ the jury presented the law of the case fairly to the jury. The instructions refused were not the law.
   Napton, Judge,

delivered tlie opinion of the court.

This indictment was for a breach of the 36th section of the 8th article of the act concerning crimes and punishments. That section prohibits, undér a penalty, “ exposing to sale any goods, wares or merchandise; keeping open any ale or porter house, grocery or tippling-shop ; and selling or retailing any fermented or distilled liquor, on the first day of the week, commonly called Sunday.”

The indictment charged that the defendant, on, &c., at, <fec., did then and there unlawfully keep open a grocery by then and there permitting persons to enter said grocery and then and there to drink intoxicating liquors.” The proof was that the witness and others opened the door of defendant’s grocery, went in and immediately shut the door after them; that two of them took a dram; that defendant set out the liquor; that defendant did not sell the liquor; that the door of the grocery had been shut previously to the entrance of witness and his friends, and that it was not permitted to stand open. The court instructed the jury as follows: “ 1. If the jury shall believe from the evidence that defendant at any time within one year before the finding of the indictment, and within the county of Laclede, kept open a grocery upon the first day of the week, commonly called Sunday, they should find the defendant guilty. 2. If the defendant was the keeper of a grocery and permitted persons to enter it on Sunday and to drink intoxicating liquors in such grocery, it was keeping open such grocery within the meaning of the statute.” The defendant asked several instructions, which in substance were designed to declare the law to be that the facts proved by the witness and referred to in the instructions given would not themselves constitute the offence punished by the act unless the jury were satisfied that such acts were done or permitted with a view to evade the law, or to allure customers, or to carry on his usual business. These instructions were refused and a verdict was found against the defendant.

The indictment we think sufficient, as the charge is in the words of the statute, and the definition of the offence attempted may be rejected as surplusage. Nor are we prepared to say that the evidence was not sufficient to justify a verdict; but we think the defendant’s instructions should have been, given or some explanations equivalent thereto. The object of this statute is very plain; it is to prohibit a continuance of certain employments on Sunday under certain named penalties. All traffic in merchandise of every desci'iption is to cease on Sunday, and all retailers or venders of liquors are to cease their occupation on that day. It is of no consequence whether the door of the grocery or dram-shop is kept open or shut. If the business of the week is carried on openly or secretly the law is broken. A grocery-keeper, binder the present law, has no authority to retail spirituous liquors at any time. The simple fact that he permits one or more acquaintances to enter his grocery and drink spirituous liquors on Sunday is not of itself a breach of this law. It may be of another. It may be evidence and very sufficient evidence to authorize a conviction under this law, depending upon circumstances and motives to be determined on by the jury. If the jury are satisfied that such acts are done for the accommodation of customers and are, in truth, a continuation of the usual occupation of the week, they may very well find the defendant guilty.

There may be attempted evasions of the law, and the jury must judge of these matters ; but it is very obvious that the defendant may have done every thing which is hypothetically stated in the instructions given by the court, and yet totally innocent of a violation of the Sabbath. Juries are however very likely to be able to draw correct conclusions upon such evidence, and can readily understand the motives of certain acts. But the jury must have an opportunity of passing upon the intent as well as the acts.

The court in this case did not allow the question of intent to go to the jury. Yery likely the verdict would have been the same ; but we can not know how this might have been, and must therefore reverse the judgment and remand the cause ;

the other judges concur.


text:
    Bancroft, Plaintiff in Error, v. Bruning, defendant in Error.
    1.Case affirmed because no exceptions were saved.

      Error to Buchanan Cowrt of Common Pleas.

      Loan, for plaintiff in error.

      Gardenhire, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

This case was tried by the court without a jury. No exceptions were taken during the progress of the trial, and the court was not called on to make any declaration of law touching’ the case. So that nothing was saved that will authorize the interposition of this court. The judgment will be affirmed;

the other judges concurring.


text:
    Barton, Plaintiff in Error, v. Murrain, Defendant in Error.
    1. An exemplification of a patent certified by the Commissioner of the General Land Office, may be received in evidence without proof of the loss of the original patent.
    2. Under the general law of the state certified copies of deeds of conveyance may be received in evidence upon proof that the originals are not “ within the power” of the party offering such copies — that is, not within his control or possession, nor in the possession of his agent, servant or bailee.
    3. Where, however, deeds conveying portions of the military bounty land in this state are executed in other states of the Union, and acknowledged and proved in accordance with the laws and usages of such states and not in accordance with the law of this state, certified copies of such deeds can be read in evidence only upon proof of the loss or destruction of the original.
    4. The loss of such instruments should be presumed if it appear that search has been made in the proper places and by the proper persons, and that they can not be found after due diligence has been used in looking for them.

      Error to Linn Circuit Court.

    This was an action to recover possession of a tract of one hundred and sixty acres of land. In support of her title the plaintiff introduced in evidence, against the objection of defendant, an exemplification of a patent to one Aaron Dresser certified by the Commissioner of the General Land Office. Certain preliminary proof was offered and received with a view to show the loss of the original.
    The plaintiff then offered in evidence a copy of a deed executed by Aaron Dresser in favor of one Romulus Riggs. The copy was certified by the clerk of the circuit court of Howard county, in the state of Missouri. The offering of this certified copy in .evidence was accompanied by the following preliminary proof: Thomas Shackelford, a witness, stated that he had requested one Stephen Donohoe, now dead, to apply to tlie'administrator of William Rector’s estate in St. Louis county for the title papers relating to the tract in controversy ; that Donohoe informed him that he had so applied, and was informed that the papers belonging to said estate were in the clerk’s office ; that he applied to the clerk, who made search, and informed him that all the title papers belonging to Rector’s estate had been abstracted from the office ; that after the death of Donohoe he wrote several letters for Wharton R. Barton and requested him to send them to St. Louis and have inquiry made for said title papers, also, a letter to be forwarded to Romulus Riggs, Baltimore, making inquiry for said deed from Dresser to Riggs ; that he had a letter from St. Louis stating that no trace of said deed could be found. Wharton R. Barton testified that he forwarded letters to St. Louis and Baltimore making inquiries for the deed from Dresser to Riggs ; that he received no answer from Riggs. This deed of Dresser was acknowledged in the state of Massachusetts before a justice of the peace. The defendant contended that the official character of the justice was defectively certified or authenticated. The court, on the objection of defendant, excluded the deed; whereupon the plaintiff took a nonsuit, with leave, &c.

      Shackelford, for plaintiff in error.
    I. The land in dispute being a part of the military bounty land, the deed was admissible in evidence. (E. C. 18 — , p. 366, sec. 51.) The deed was made in Massachusetts, and by the law of that state was properly acknowledged before a justice of the peace. It was properly admitted to record without further proof. It was admissible in evidence without any certificate of the clerk to the official character of the justice. The law of Massachusetts did not require such a certificate.
    II. Even if the certificate was necessary, .the certificate accompanying the deed is sufficient.
    III. The preliminary proof was amply sufficient. -

      Harris & Boardman, for defendant in error.
    I. The preliminary proof was insufficient.
    II. The certificate of George Bradbury to the official character of the justice is insufficient. He styles himself clerk of the “judicial courts,” and says that he affixed the seal of the “ county.” It does not appear that he had authority to use the seal of the county. There is no copy or representation of his official seal.
   Richardson, Judge,

delivered the opinion of the court.

The exemplification of the patent certified by the Commissioner of the General Land Office was properly received in evidence without proof of the loss of the original; and it is said to be evidence of as high a nature as the original, as it is a recognition by the government itself of the validity of its own grant under its own seal. (Patterson v. Winn, 5 Pet. 242.) But we think that the copy of the deed from the patentee to Biggs was properly rejected.

When there is no ground of suspicion that a paper is intentionally withheld, and there is no apparent motive for deception, the courts are very liberal in regard to secondary evidence. Thus, it has been held that a party claiming under a warranty deed is not presumed to hold the title papers anterior to his own deed, because they are supposed to be in the hands of his warrantor, who retains them for his own protection(Lord Buckhast v. Fenner, 1 Coke, R. 1; Jackson v. Woolsey, 11 John. 453; Eaton v. Campbell, 7 Pick. 10; Cook, lessee, v. Hunter, 2 Tenn. 113;) and in such cases copies may be read; also, that a purchaser at a sheriff’s sale may give copies in evidence when it is necessary to deduce the title of the person whose property has been sold, because he is only privy in estate and is not supposed to have the custody of the original; (Den, d. v. Hilliard, 2 Murph. 270;) and that a copy is admissible when the grantee, who is presumed to have the original, is out of the state; (Boone v. Dyke, 3 Mon. 532; 7 Pick. 10;) or the paper is in the- hands of a third person under such circumstances that the law will not compel him to produce it, or tljat he is beyond the process of the court. (United States v. Reyburn, 6 Pet. 352.)

In reference to instruments conveying or affecting real estate in this state, which are acknowledged or proved, certified and recorded, pursuant to the general law on the subject, the same spirit of liberality is indicated in the 46th section of our act concerning conveyances, (1 R. C. 1855, p. 365,) which declares that when it shall be shown to the court by the oath or affidavit of the party wishing to use a copy, or of any one knowing the fact that such instrument is lost or not within the power of the party wishing to use the same, the record thereof, or the transcript of such record certified by the recorder under the seal of his office, may be used without further proof. It is not necessary to show that the instrument is lost or destroyed, but the transcript may be used upon proof that the original is not within the power of the person offering it. (Gilbert v. Boyd, 25 Mo. 27.) The words of the statute, “ not within the power,” should be construed as not within the control or possession of the party wishing to use a copy — that is, not in the possession of the party, his agent, servant or bailee, or other person under his control. Therefore, if the original is presumed to be in the hands of a third person, a copy may generally be read without the preliminary oath or affidavit of the party wishing to use it; and, in all other cases, in the absence of any suspicion of unfairness, nothing more should be required than that the oath or affidavit should show that the original is not within the control of the person offei’ing a copy.

The property in controversy is a part of the military bounty land, and there is special legislation in reference to instruments conveying or affecting land in the military district, the policy of which is obvious. The 51st section of the act concerning conveyances (1 R. C. 1855, p. 366) provides that every instrument in writing, which conveys or in any way affects any real estate situate in this state and being part of the military bounty land in this state, “ which has been or may hereafter be made and executed out of this state and within the United States, and which has been or may hereafter be acknowledged or proved in conformity with the laws and usage of the state, territory or district, in which such instrument has been or may hereafter be made, executed, acknowledged or proved, for the execution, acknowledgment or proof of instruments in writing, conveying or affecting real estate within such state, territory or district, shall be recorded in the county in this state in which such land be situated.” And the 55th section permits copies of such instruments or of the record of the same, duly certified, &c., to be read in evidence, with like effect as if the original were produced and read, upon proof of the loss or destruction of the original instrument.

It will be observed that, though the legislature, out of tenderness to the vendees of- the soldiers of the war of 1812— the great majority of whom were nonresidents of this state— allowed to be recorded conveyances of land in the military district, with certificates of acknowledgment that are insufficient to deeds conveying land in other parts of the state, it denies the right to use secondary evidence in such cases under the same circumstances that it is permitted in cases of ordinary deeds. In one case, a copy may be used upon proof that the instrument is lost and not luithin the power of the party wishing to use it; but in the other, only on proof of the loss or destruction of the original. The difference in the language of the 46th section and 55th section is too marked to be the result of accident, and we suppose it was intended to impose stricter terms on one class of instruments than on the other.

It is not however deemed necessary, in order to let in secondary proof of the contents of a deed conveying land in the military district and not acknowledged according to the general law, that there should be evidence of an absolute loss of the original. In the nature of things, it is seldom that an actual destruction of a paper can be shown, and proof falling short of this must be received, and, as a general rule, it ought to be sufficient to raise the presumption of loss that search has been made in the proper place and by the proper person, and that the paper can not be found after due diligence has been used in looking for it.

The deed may have been acknowledged in conformity to the laws of Massachusetts where it was executed, but the preliminary proof of the loss of the original was not sufficient to admit the copy in evidence. It does not appear from the testimony of Mr. Shackelford or of Mr. Barton that either of them ever made any search at any place or time, or ever had an interview with any person who had the right to the custody of the original. It is not shown that Rector’s estate ever had any connection with the land; and if it had, the second-hand statements of the administrator would not be received, because he is a competent witness and might be called to testify, and therefore his declarations were mere hearsay and inadmissible. The other judges concurring, the judgment will be affirmed.


text:
    Clawater, Appellant, v. Tetherow, Respondent.
    1. A. purchased certain real estate in his own name and with his own money; at the date of the purchase he agreed with B. that if B. would before a certain specified time pay one-half of the purchase money he should be entitled to one-half of the land; held, that A., not paying any portion of the purchase money, had no interest, legal or equitable, in the land; that the contract of B. with A. was within the statute of frauds.

      Appeal from, DeKalb Circuit Court.

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

      Shambaugh, for appellant,
    cited 2 Story Eq. § 1050, 1201-1211, 385, 428, 489; Kent, Comm. 305-6; 2 Mo. 109 ; 15 Mo. 370 ; 21 Mo. 331; 1 Stark, on Ev. 74; 1 Greenl. Ev. § 27, 204; 19 Mo. 204; 14 Mo. 488; 2 Smith L. Cas. 544.
   Napton, Judge,

delivered the opinion of the court.

The petition in this case proceeds altogether on the assumption that J ames, from, whom the plaintiff purchased, had an interest, equitable or legal, in the land which defendant had purchased from Clark. But looking at the petition and answer, and all the testimony in the case, which comes alone from J ames and Clark themselves, there is no ground for the assumption.

This is not a case of a purchase by one man in his own name with the money of another; nor is it the case of a purchase with one’s own money in the name of another. The defendant purchased with his own money and took the title to himself. James, who acted as agent in negotiating the purchase, so far as we can see, had no interest in the land, equitable or legal. It seems from the petition and answer, as well as the testimony of James, that there was a verbal understanding between defendant and James that upon James’ paying-before the 1st of December, 1854, one-half of the purchase money and interest, he was to be a partner in the ownership of the land. Conceding this contract to be obligatory, it did not make James a partner at the time of his sale to plaintiff. The fact was, as all the testimony shows, that he never paid a cent towards the purchase, nor even towards defraying the expenses of surveying and laying out the land into town lots.

There is an attempt in the petition to make the defendant’s purchase the result of a fraudulent arrangement between defendant and James to cheat James’ creditors ; and, strange to say, James himself, who is the principal witness in the case, proves this charge to be true. But it is not easy to see how James’ creditors could possibly be injured by the investment of defendant’s money in the land, and, although James’ intentions may have been as fraudulent as he himself represents them, and the defendant may have had every disposition to aid, nothing was done to promote such a scheme.

It might be very well questioned whether there was any consideration for the promise of defendant to James. It seems to be a mere nudum pactum. So far as the testimony shows, James advanced no money; and the effort of the plaintiff, who bought James’ interest, seems to be to share in the profits of a speculation, if there are any, towards which James advanced nothing, contributed no means, and assumed no responsibilities or risk of any kind. This, however, is not material, as there was no proof that the contract or agreement was complied with, even if it was binding. That the contract was within the statute of frauds is plain ; but as it was admitted in the shape we have stated it, that is not regarded as a material question in the case. Upon the whole, we think the circuit court properly dismissed the petition upon the hearing.

The other judges concur, judgment affirmed.


author: Scott, Judge,

text:
    Dillon et al., Defendants in Error, v. Rash, Plaintiff in Error.
    1. An execution issued by a justice of the peace can not regularly be returned before the return day thereof; should it be returned nulla bona by the constable, and a transcript of the judgment of the justice be filed in the office of the clerk of the circuit court, and an execution be issued by said clerk upon said certified judgment before the return day of the execution issued by the justice, the circuit court should quash such execution.

      Error to Atchison Circuit Cowrt.

    A judgment was rendered by a justice of the peace against one Rasb. On the 2d of March, 1858, an execution was issued by said justice on said judgment. On or about the 27th of March, the constable returned said execution endorsed “ no goods and chattels found,” &c. On said 27th of March, an execution issued from the office of the clerk of the Atchison circuit court upon a transcript of the said judgment, returnable to the April term, 1858, of said court. This execution was levied on certain real estate of defendant Rash, who moved the court to quash said execution. The court overruled the motion.
    Loan, for plaintiff in error.
    I. The execution issued without the authority of law. The execution could not be legally returned by the constable before the time limited by the writ for its return, so as to authorize an execution to ■ issue from the office of the clerk of the circuit court. (See 5 Wend. 276 ; 9 Wend. 368.)
    Patterson, for defendants in error. .
   Scott, Judge,

delivered the opinion of the court.

The conduct of the plaintiffs in this proceeding has very much the appearance of a design to deprive the defendant of an advantage secured to him by law, and we see no reason why they should not have been arrested in their course. The law was made as well for defendants as for plaintiffs. Whilst it does justice to the creditor, it also intended to show a little indulgence to the debtor.

It is well known that the periods between the date and return of executions in justices’ courts were fixed with a view to give defendants a little time to prepare for their payment. Formerly, all executions from justices’ courts, without regard to their amount, were returnable in thirty days. The law has since been changed for the relief of defendants.

We are not prepared to say that a sale under an execution founded on a return like that in the present case would be regarded as a nullity in a collateral action, when the interests of third persons were involved. That is not the question here. The motion made in this cause, if it had been successful, would have prevented the occurrence of such a question, and as the proceeding was irregular it should have been sustained. Regularly, an execution can not be returned before the return day. If search is made and no property is found, it does not follow but that the defendant may have property before the return day of the execution. He may acquire it after the return is made. Under such a construction of the statute as has been given, a judgment may be obtained, a transcript filed, an execution issued and returned, and an execution awarded from the office of the clerk of the circuit court and levied, all on the same day, with a view to be enabled to sell the real estate of a defendant at a circuit court that is only twenty or thirty days ahead.

It does not appear that there is any supersedeas in this case. If the execution from the circuit court has been executed and a person other than the plaintiffs has become the purchaser of the land and received a deed, other considerations may arise than those which grow out of the present motion.

In want of knowledge how the matter stands, the judgment will be reversed and the cause remanded.

The other judges concur.


text:
    Trigg, Appellant, v. Taylor et al., Respondents.
    1. A material alteration of a promissory note or bill of exchange will render the same invalid,, even in the hands of an innocent holder, as against any party thereto not consenting to the alteration.
    2. This rule applies to an accommodation note fraudulently altered before it is negotiated.

      Appeal from Cooper Cowrt of Common Pleas.

    This was an action upon a negotiable promissory note for $1,500, dated May 8, 1857, made by W. W. Norris and John Taylor in favor of said Norris, and endorsed by Norris to plaintiff Trigg. Norris failed to answer. Taylor answered denying the execution of the note sued on. At the trial, it appeared in evidence that Taylor signed a note for $500 with said Norris and for his accommodation; that this note was fraudulently altered by Norris to a note for $1,500 and endorsed to plaintiff. This note, as altered, is the note sued on in this suit. The evidence conduced to show that the alteration was so skillfully done that in the ordinary transactions of business it would not have been noticed.
    The cause was tried by the court without a jury. The plaintiff asked the court to give the following instructions or declarations of law: “ 1. Defendant Taylor admits that he signed the note offered in evidence. 2. Even if the court find from the evidence that the instrument sued upon was altered by Norris after it was executed by Taylor, yet the court must find for the plaintiff unless the court shall further find that the alteration was made after the note came to the hands of plaintiff, or that said alteration was so obvious or apparent upon the face of said instrument as to prevent a person exercising reasonable care and diligence from the purchase of the same. 8. The presumption of law is that the alteration or erasure, if any exist, was made at the time of, or anterior to, the execution of the note ; and it devolves upon the defendant to show otherwise, unless the note presents upon its face such marks of alteration or erasure as would excite the suspicion of a man reasonably prudent and cautious in the transaction of business. 4. If the instrument sued upon was prepared by the defendants Norris and Taylor as an accommodation note for the benefit of Norris for the sum of $500, and the same was altered by the defendant Norris so as to make it appear upon its face a note for $1,500 before it came to the hands of plaintiff, or before it became an available instrument in the hands of any other person, then the court will find for the plaintiff the amount of said note, unless the court shall further find that the alteration was such as ought to have excited the suspicion of a prudent and careful man in the purchase of said note. 5. If the court find from the evidence that the note sued upon was executed by defendant for the sum of $500, then the plaintiff is entitled to recover that amount, unless said instrument was altered after it came into the hands of plaintiff.” Of these declarations of law, the court gave the 1st and 3d, and refused the others.
    The court gave the following declaration at the request of defendant Taylor: “ 6. If the court find from the evidence that the note sued upon was for $500 when it was executed by defendant Taylor, and further finds that the same was afterwards altered by Norris, without the consent or knowledge of defendant Taylor, before it was transferred to plaintiff, then said note is void as to defendant Taylor.”
    The court rendered judgment against plaintiff.

      Stephens & Vest, for appellant.
    I. The court erred in refusing the fourth declaration asked by plaintiff. (See 8 Mo. 235 ; 2 Mason, 278 ; Byles on Bills, 255, 256 ; 8 Ad. & El. 136 ; 1 C. & M. 721; 1 O., M. & R. 127 ; 4 Tyrw. 598.) The court erred in refusing the second instruction asked by plaintiff. (Ib.; 15 Mo. 342.) So also in refusing the fifth instruction. (8 Mo. 235 ; 2 Mason, 478 ; Story on Bills, 187, 191.) The court also erred in giving instruction asked by defendant. (Ib.; 3 Kent, Comm. 79; Bayley on Bills, 512, 516 ; 9 Cranch, 37.)

      Adams, for respondents.
    I. The alteration of the note by Norris before he passed it to Trigg was a forgery and rendered the note absolutely void as to Taylor. (Byles on Bills, 253.) The fact that the alteration is so skillfully executed as to deceive a prudent man in the ordinary transaction of business is wholly immaterial.
   Richardson, Judge,

delivered the opinion of the court.

It is a general rule that any alteration in a material part of a bill of exchange or promissory note, as in the date, sum, or time when payable, or consideration, or place of payment, will render the bill or note invalid, as against any party thereto not consenting to such alteration, even in the hands of an innocent holder. (Edwards on Bills, 95; Chitty on Bills, 182; Woodworth v. Bank of America, 19 John. 391; Nagro v. Fuller, 24 Wend. 374; Bruce v. Westcott, 3 Barb. 374.) The application of this principle is not affected by the skillfulness with which the alteration is made, or the probability that the closest observer will fail to discover it. In Hall v. Fuller, 5 Barn. & Cress. 750, a check, properly filled up for three pounds, drawn by a customer on his banker, came into the hands of a third person, who by a chemical process expunged the original sum and inserted a larger sum, but in such a manner that no person in the ordinary course of business could observe it. The banker paid the check, and it was decided that he could not charge the customer for any thing beyond the sum for which the check was originally drawn, and that as the customer in drawing the check gave no opening to the fraud, the consequences of it fell on the banker.

No good reason is perceived why the rule would not prevail in the case of an accommodation note fraudulently altered before it is negotiated; and the cases that distinguish accommodation paper, before it is issued, and negotiated instruments, will be found, we think, to have arisen under the English stamp acts. The altered note is no more the act of the maker in one case than in the other; and because a person may be willing to serve a friend by the use of his name for a given sum, it is against the usual course of such transactions and the experience of men to say that an authority is inferred to substitute a large sum for that mentioned and fully written in the body of the note. The recognition of such a doctrine would destroy all confidence, for few men would be willing to aid others at the expense of their own ruin, which no degree of caution could avert. If a blank is left for the amount to be inserted, it may be said with some propriety that the person signing the instrument may be considered as having authorized it to be filled up for any amount, and that it is proper that he, rather than an innocent holder, should suffer the consequence of any abuse of his confidence; but no such authority can be presumed when the instrument is complete and the blanks entirely filled. If, however, a bill, note or check is so negligently drawn, with blank spaces left for the addition of other words or figures, that alterations can be made so as not to excite suspicion, the loss ought to fall on the person in fault; according to the familiar rule, that when one of two persons must suffer by the act of a third, the one who affords the means to the wrong-doer must sustain the loss. This was the principle on which Young v. Grote, 4 Bing. 253, was decided. In that case, a customer of a banker delivered to his wife printed checks, signed by himself, with blanks for the sums to be filled up by her. She caused them to be filled up with the words fifty pounds, the fifty being commenced with a small letter in the middle of a line, and in this condition she delivered the check, which was afterwards altered by inserting at the beginning of the line in which the word fifty was written, the words three hundred. The banker paid the check for three hundred and fifty pounds, and it was held that the loss must fall on the customer. But the case at bar was not tried on this theory; and the question whether the defendant was guilty of negligence in leaving open spaces in the note so that Norris, with greater facility, could alter the amount and impose on the plaintiff, was not submitted to the jury in any of the instructions.

The fifth instruction asked by the plaintiff was properly refused, because the fraudulent alteration avoided the security, and as the plaintiff could not recover by force of the instrument on which he declared, he could not recover at all. (Sutton v. Toomer, 5 Barn. & Cress. 416; Chitty on Bills, 191.) The other judges concurring, the judgment will be affirmed.


text:
    Furguson & Brock, to the use of Ham et al., Plaintiffs in Error, v. Lewis & Basket, Defendants in Error.
    1. An action of unlawful detainer can not be maintained in the name of one person to the use of another; it can only he maintained by the person or persons entitled to the possession of the premises in controversy.

      Error to Newton Circuit Court.

    This was an action of unlawful detainer. In the complaint, in the justice’s docket, and throughout the proceedings, the cause was entitled as follows: “ George W. Eurgu-son and John Brock, to the use of Thomas J. Ham, Hilliard Hicks, Alexander Hale and James E. Wilcoxen, plaintiffs, against Reuben Basket and Moses Lewis, defendants. Unlawful detainer.” Judgment was rendered in favor of plaintiffs by the justice of the peace before whom the proceeding was instituted. The cause was taken by appeal to the circuit court, which dismissed the suit on account of the defectiveness of the complaint.

      F. P. Wright, for plaintiffs in error.
    I. The reasons assigned were not such as authorized the court to dismiss the cause. The petition or statement contains all the facts requisite to enable plaintiffs to recover for an unlawful detainer, and no reason is perceived why the court dismissed the cause.
   Scott, Judge,

delivered the opinion of the court.

There is an irregularity in the proceedings which take's away the possibility of its being sustained. According to law, Furguson and Brock are the real plaintiffs; and if they were the persons really entitled to sue, by having the legal right to the possession of the premises in controversy, we would not consider their statement bad because they had added what followed their names. The whole of it might have been rejected as surplusage. But the misfortune is, that while Brock and Ferguson stand on the record as the real plaintiffs, it appears that those for whose use and benefit the suit is brought are those entitled to the possession of the disputed premises. We do not recollect an instance in which a complaint of an unlawful detainer was begun by one to the use and benefit of another. We are puzzled in conjecturing a reason for such a mode of procedure. If Furguson and Brock had the right to the immediate possession of the lot in dispute as trustees for those for whom they sued, it would not have been necessary to have stated it, though a statement of the names of those for whose use the suit was brought would have done no harm. If those for whose use the complaint was brought were purchasers from the original lessors, they might, as the law now stands, have brought the suit in their own names ; and if the statuté had not allowed it, surely they did not expect to evade the law by the device they adopted. (R. 0. p. 794, sec. 37.)

Affirmed.

The other judges concur.


text:
    Eads et al., Respondents, v. Wooldridge, Appellant.
    1. The official character of school trustees may be proved by their acts and conduct as such; the oaths of office filed by them with the clerks of the county courts and their official bonds are competent evidence to prove such official character.
    2. In an action of forcible entry and detainer, in case of a verdict for the complainant, the jury may assess damages for all waste and injury committed upon the premises as well as for all rents and profits of the same up to the time of the rendition of the verdict.

      Appeal from Cooper Court of Common Pleas.

    This was an action of forcible entry and detainer brought by plaintiffs, as trustees of school district No. 2, of township 48, range 17, in Cooper county, to recover possession of a lot of ground with a school-house thereon.
    At the trial, the plaintiffs, to prove their official character, introduced the clerk of the county court, who produced the affidavits and bonds of plaintiffs, as trustees of said school district, and offered to prove by said clerk that the plaintiff had taken the oaths required by law of school trustees ; that Eads had given bond as president; and that plaintiffs were acting as trustees on the 22d of March, 1858. The court overruled the objection of defendant to this testimony and admitted the same. It also appeared that school had been kept in the house in question for ten years, but that none was kept therein at the commencement of this suit; that defendant removed the furniture of the school-house and took possession thereof, and refused to permit the trustees to occupy the same as a school-house. The plaintiff also introduced in evidence the following instrument in writing, executed by defendant: “ Know all men by these presents, that whereas, Samuel Wooldridge, by these presents, hereby grants unto the trustees of school district No. 2, township 48, range 17, a perpetual lease of one acre lot or parcel of land, the said land being that upon which the school-house of said district is now situated; the understanding of this contract is that the aforesaid one acre lot or parcel of land is to remain subject to the trustees of said district as long as it may be wanted for school purposes; and it is not to be inferred or presumed that the said land may not be wanted for school purposes in case the district should become disorganized, unless it should so remain for the terms of three years, at the expiration of which time it may revert back unto the said Samuel Wooldridge, his heirs or assigns. Given under my hand and seal the 18th day of June, 1854. [Signed] Samuel Wooldridge. (Seal.)”
    The court, at the instance of the plaintiff, gave the following instructions: “ 1. If the jury believe from the evidence that the plaintiffs were in possession of the school-house at the time mentioned in the complaint, and that defendant entered and took possession of the same by means of a false key, or by forcing off or bursting the lock, or by breaking open or forcing the door, or by breaking the window or any part of the building, this amounts to a forcible entry in contemplation of law. 2. To establish the plaintiff’s possession, it is not necessary that they or either of them should have been in the actual occupancy of the house ; a man may have the possession of a house otherwise than by living in it; he may have part of his goods there ; and if the jury find from the evidence that the desks, stove, benches, or any furniture belonging to the school district mentioned in the complaint, were in the school-house, and the plaintiffs or either of them had locked the house and had the key, then the plaintiffs, in contemplation of law, were in possession. 3. If the jury find for the plaintiffs, they will assess damages for all waste and injury committed upon the premises, as well as for all rents and profits of said premises up to the present time.”
    The jury found for plaintiffs.

      Douglass & Hayden, for appellant.
    I. There was no legal evidence that the plaintiffs were trustees of school district No. 2. The affidavits and bonds of plaintiffs produced by the county clerk were not admissible in evidence to prove that plaintiffs were trustees. There was better evidence of that fact, and its absence was unaccounted for. (E. C. p. 1434.) Only examined copies of the originals could be received in evidence. The acts of the trustees might be evidence against them, but not for them. (Greenl. Ev. § 56, 92 ; 8 T. E. 303; Gilbert v. Boyd, 25 Mo. 29.) The court erred in refusing the second instruction asked by the defendant. (4 Johns. 418 ; Wood v. Leadbit-ter, 10 M. & W. 837; 10 Conn. 375; 2 Amer. Lead. Cas. 677.) The instrument signed by Wooldridge was nothing more than a license, and was revocable at any time. The instructions given at- the instance of the plaintiffs were erroneous. (19 Mo. 128,169 ; E. C. 1855, p. 791; 14 Mo. 17 ; 18 Mo. 256.)

      Muir & Draffen, for respondents,
    cited R. C. 1855, p. 790, 792, 1436; 8 Mo. 977 ; 6 Mo. 347 ; 4 Bibb, 389, 426 ; 3 Marsh. 347 ; Story on Contracts, § 427 ; 2 Smith’s Leading Cases, 507; 3 Hill, 219 ; 14 Mo. 488 ; 24 Mo. 184 ; 4 Kent, Comm. 452.)
   Scott, Judge,

delivered the opinion of the court.

The most important question in this case is, as to the competency of the evidence to establish the fact of the election or appointment of the plaintiffs as trustees of the school district for which they sue. If nothing but the minutes of the meeting at which an election of trustees is made is admissible evidence of their official character, the school law must fail to be executed in a great many instances. The want of method in the transaction of business under our school system is notorious, and to expect a strict compliance with the law would be to render it of no avail in a great many of the school districts. Under the school law in New York, which suggested to us the idea of our system, it has been held that the official character of school trustees may be proved by reputation and their acts and conduct as . such. (McCoy v. Curtice, 9 Wend. 18.) In Connecticut, a clergyman in the celebration of marriage is a public civil officer, and his acts in that capacity are admissible as prima facie evidence of his official character. (Goshen v. Stonington, 4 Conn. 209.) Indeed it is a general rule that, in order to prove a general allegation that a party holds a particular office or situation, it is usually sufficient to prove his acting in that capacity; and this rule is applicable to cases in which the officer is plaintiff. (2 Starkie, part 4, tit. Character.) The proof of the affidavits and bonds given by the plaintiffs as trustees was admissible as evidence of their acts as trustees.

We are not of the opinion that the deed of conveyance given in evidence is nothing but a license. The instrument by its terms furnishes no support for such an idea. It grants a perpetual lease, and there is nothing in it which shows that such was not the understanding of the parties. But if it had been a license and nothing more, how would the defendant have been justified ? If he licenses another to occupy his land and afterwards sees proper to revoke his license, can he thereupon go and forcibly eject the occupant ? For the recovery of the possession, must he not resort to his legal remedy, and not take the redress of his wrong into his own hands ?

What will constitute a possession must depend upon circumstances. The purposes for which a tenement is used has its influence in ascertaining the acts and conduct which will determine whether or not there is a possession of it. If the circumstances established by the evidence were not sufficient to show the possession of a school-house, it would be difficult to retain possession of a building used for such a purpose but by continually holding a school in it without any intermission or vacation.

The third instruction given for the plaintiffs in relation to the damages to be recovered, it is conceived, is in accordance with the provisions of the 17th section of the act concerning forcible entry and detainer.

Judgment affirmed.

The other judges concur.


text:
    The State, Respondent, v. Epperson, Appellant.
    1. If one having a gun in his hands raises it to a level and directs it towards, hut not directly at, another, and threatens to kill him if he advances in a certain direction, it will constitute an assault; it is not necessary that the gun should he raised to the shoulder.

      Appeal from Greene Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Hendricks for appellant.

      Ewing, (attorney general,) for the State,
    cited Hays v. People, 1 Hill, 853; State v. Chandler, 24 Mo. 372; State y. Smith, 2 Humph. 458 ; 11 Ired. 476.)
   Napton, Judge,

delivered the opinion of the court.

This was an indictment for an assault with a gun, with intent to kill, and the terms of the charge were that the gun was levelled “ at and against the body of one Gibson.” The proof was that Gibson was a deputy sheriff and went to defendant’s house to levy an execution; that the defendant threatened to kill him if he went to the door of defendant’s house — Gibson being then advancing in that direction ; that defendant then raised his gun to a level with his heart, with His left hand on the barrel and his right hand on or near the trigger, with the muzzle pointing towards Gibson, but a little to the left; that Gibson thereupon drew his pistol, but by the interposition of bystanders no mischief was done on either side.

We think the conviction was right. To constitute an assault with a gun, it is not necessary that the person holding it should raise it to his shoulder. The parties here were within shooting distance. The defendant threatened to kill, and the position in which he hold his gun was sufficiently threatening. If a man draws a sword or raises a stick at another when within striking distance, it is an assault; (Selwyn N. P. 18 ;) and indeed, according to some ancient authorities, a threat alone, when made to a man’s face, has been considered an assault. (2 Roll, 545; 2 Comyn Dig. 257.) A man is not obliged to wait until his adversary draws a bead on him before he commences his self-defence. The fact that the person assaulted in this case was an officer in the execution of his duties, aggravated the offence in the eye of the law and doubtless in the estimation of the jury. Obedience to the mandates of the law is one of the first duties of a good citizen. The first steps towards resistance are dangerous to the peace and security of society, and a ready and cheerful submission to the ministerial officers selected by the constituted authorities is essential to a due administration of justice, and is by no means inconsistent with the most ample redress for any injuries which may be wantonly inflicted under color of official duty.

The other judges concurring, the judgment is affirmed.


text:
    Doan et al., Defendants in Error, v. Holly, Plaintiff in Error.
    1. Where a judgment is irregularly rendered against the provisions of a statute or the rules of court, the party against -whom it is rendered is entitled to have it set aside without showing a meritorious defence to the action.
    2. Where a judgment is reversed in the supreme court and the cause remanded to the circuit court, and the mandate of the supreme court is received by the clerk of the circuit court after the commencement of a term of said court and said clerk, of his own motion, dockets the cause on the third day of the term, and the court renders judgment by default on the fourth day of the term; held — no rule of the court appearing to have been violated — that the defendant was not entitled as of right to have this judgment set aside without showing a meritorious defence.

      Error to Andrew Circuit Court.

    This case has heretofore been before the supreme court. (See 25 Mo. 857 ; 26 Mo. 186.) A former judgment in said cause was reversed at the January term, 1858, of the supreme court. The mandate and opinion of the supreme court were received by the clerk of the Andrew circuit court after the commencement of the April term, 1858, of said court. The clerk, of his own motion, docketed the case on the third day of the term. Judgment by default was rendered against defendant Holly on the fourth day of the term. This judgment the defendant Holly moved the court to set aside for the following reasons: 1st, because the court had no jurisdiction of said cause for determination at said April term; 2d, because said cause was not docketed before and at the commencement of said term; 3d, because the cause was entered on the docket the third day of the term without an order of the court authorizing and directing the same to be done.
    The court overruled the motion.

      Loan, for plaintiff in error.
    I. The court had no jurisdiction of the cause. The judgment rendered at the September term, 1857, was a final disposition of the cause in the circuit court. The writ of error removed the whole case to the supreme court. The circuit court could again hold jurisdiction over the cause only by virtue of the mandate of the supreme court, and then only after notice express or implied. In this case the defendant had neither. If the defendant was bound to appear at the April term of the court, he was entitled to the time of the. whole term in which to file his answer.

      A. H. Vories, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

We can not believe that the purposes of justice will be subserved in interfering with the judgment of the court below. It is conceded that where a judgment is irregularly obtained against the provisions of a statute or the rules of a court a party is entitled to have it set aside without showing any merits. It is enough that it was obtained against the law or the practice of the court. Unless the court has a discretion in setting the judgment aside, the law must be followed and the judgment pronounced irregular. The circuit courts formerly had rules prescribing the times within, which a transcript from the supreme court must be filed before a term, in order to make the cause to which it relates triable at that term. It does not appear from the record that there is any rule on the subject in the court in which this cause was tried. We can find no statute on' the subject. We are of opinion that the section of the practice act to which reference has been made does not apply to this case. (R. C. 1855, p. 1289, § 20.) It was not known, when the dockets of the term were made out, whether the former judgment given in the cause had been reversed or affirmed. The clerk then did not know whether any step was to be taken in the cause or not; he therefore could not docket it. The proceedings of the court below appear a little hasty, and, under ordinary circumstances, it would have looked better if a little indulgence had been extended to the defendant ; but here is a judgment rendered without violating any statute or rule of practice in a court in which the cause was properly triable. It does not appear that any injustice has been done. The demand is not denied to be due. Although the defendant, at the term at which the judgment now under revision was rendered, might have filed an answer to the merits, he failed to do it. Notwithstanding this, had an affidavit been made showing a meritorious defence to the action, time being asked for to file an answer and prepare for trial, it should have been granted. But as this is the third time that this cause has been in this court, and as it does not appear that there is any just defence to the demand of the plaintiffs, and as the object of the defendant, from any thing that appears, is merely delay, we do not conceive that we would be warranted in interfering with the judgment of the court below. Affirmed.

Napton, Judge, concurs.


text:
    The State, Defendant in Error, v. Young, Plaintiff in Error.
    1. No owner of land over which a road passes can change its location in any' other manner than that prescribed by law.
    2 When user alone, disconnected with any act of the owner showing an intention to dedicate, is relied on as evidence of a dedication of a right of way to the public, it must continue the length of time necessary to bar an action to recover the possession of land; the same length of time of nonuser would, it would seem, be necessary to raise a presumption of abandonment by the public.

      Error to Dallas Circuit Court.

    This was an indictment for obstructing a public road. The court gave the following instruction at the instance of the prosecution: “ If the jury believe from the evidence that before the 1st day of May, 1856, the county court of Dallas county had made an order establishing a county road in the county of Dallas and had directed the same to be opened and described as alleged in said indictment, and that the same had been opened, and that the defendant since the 1st day of May, 1866, and before the finding of this indictment, in the county of Dallas, unnecessarily obstructed said road by erecting a fence across the same, they should find defendant guilty.”
    The court refused to give the following instruction asked by defendant: “ If the jury believe from the evidence that before the fence was made across the road, the travel on the road near the place had changed, and that this new location and not the old road had been worked by the overseer and hands and had thus been kept open and in order, and that both ends of this portion of the old road, where the new road left it and again entered it, had been brushed across, and that the general travel was on this new road before the fence was erected, and the old portion of the road had been abandoned as a travelled road, they will find the defendant not guilty.”
    The defendant was found guilty and fined ten dollars.

      Wright, for plaintiff in error.
    I. Tbe instruction given on tbe part of tbe State is erroneous ; tbe second instruction asked by defendant should have been given. (6 Pet. 513.)

      Ewing, (attorney general,) for the State,
    cited "Wharton C. L. 806 ; Elkins v. State, 2 Humph. 544; Corn v. Belding, 13 Metc. 10 ; R. C. 1855, p. 1382.
   Scott, Judge,

delivered tbe opinion of the court.

It is not easy to see how this judgment can be reversed, as there is evidence in the record showing that tbe defendant obstructed with his fence both the old and tbe new road. No owner of land over which a road passes has any right to make any change in it but in the manner prescribed by law. Experience shows that the public generally suffers by such changes, and that they are made with an eye to the interest alone of the owner of the land. So far from the change here having been made by authority of law, it seems an attempt was made to effect it, but, for some cause not stated, it did not succeed. Suppose the land which was used as a new road had belonged to another than the defendant, could it have been pretended that the space of five or six years, during which it was used, was ,evidence of a dedication of the right of way ? If it could not be, then the owner not having dedicated his land, he might have enclosed it, and thus the public would have been deprived of a road altogether. When use alone is relied on as evidence of a dedication of a right of way to the public, disconnected with any act of the owner showing an intention to dedicate, it must continue the length of time necessary to bar an action to recover the possession of the land. It would seem to follow that the same length of time would be necessary to raise a presumption of an abandonment by the public of a right of way. (Missouri Institute of the Blind v. How et al. 27 Mo. 211.)

There was no evidence, as appears from the record, from which there conld arise any question as to the legality of the proceedings in opening the original road. The instruction therefore given for the State contained no error. The facts assumed in the instruction asked by the defendant did not constitute an abandonment of the established road, and therefore that instruction-was properly refused.

Affirmed.

The other judges concur.


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    Beam, Plaintiff in Error, v. Link et al., Defendants in Error.
    1. In an action for a malicious prosecution, in -which it was alleged by the plaintiff that the defendants appeared before the grand jury and, without probable cause, &c., caused plaintiff to be indicted for perjury, no grand juror can be permitted to testify and disclose the name of any witness who appeared before said jury.

      Error to Polk Circuit Court.

    This was an action for malicious prosecution. The petition set forth that defendants knowingly, wilfully, and maliciously went before a certain grand jury and caused and procured plaintiff to be indicted for the crime of perjury, without then and there having probable cause, &c. On the trial, the plaintiff introduced one T. W. Cunningham as a witness, and proposed to prove by him that he was a member of the grand jury that indicted plaintiff; that defendants went before said jury and testified as witnesses before them. The plaintiff disclaimed any intention of eliciting what said witnesses swore to before said jury. The court refused to permit Cunningham to testify.

      F. P. Wright, for plaintiff in error.

      E. B. Ewing, for defendants in error.
    I. The court properly excluded the testimony of Cunningham. (R. C. 1856, 1169; Pindle v. Nichols, 20 Mo. 327; State v. Baker, 20 Mo. 338 ; 15 Mo. 248 ; Newman v. Lawless 6 Mo. 302 ; Finney v. Allen, 7 Mo. 415; Yaux v. Campbell, 8 Mo. 227.)
   Scott, Judge,

delivered the opinion of the court.

This case is like that of Tindle v. Nichols, 20 Mo. 326, in which it was held, that in an action for slander for charging one with having been guilty of perjury in swearing before a grand jury, the grand jurors would not be permitted to tes-. tify as to what the plaintiff swore in giving evidence before them. This opinion is founded on the statute, and the statute itself has its origin in principles of the common law. Grand jurors are now and have always been sworn to secrecy. This oath restrained them from disclosing the evidence given before them. The clerk of the grand inquest could not be sworn as a witness in regard to matters that transpired before it. These considerations show that there is no reason in law for relaxing the force of the statute in relation to this subject. The 17th section of the 3d article of the act regulating proceedings in criminal cases (R. C. 1855, p. 1169) enacts that no member of a grand jury shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto. This section will be construed in reference to the 15th, which prescribes the cases in which a grand juror may testify as to the matters that transpired before them. The policy of the law is to encourage witnesses in disclosing offences committed against the state; and to permit the names of the witnesses to be reported, would as effectually restrain the full discovery of information as to suffer the evidence itself to be disclosed. The case of Sykes v. Dunbar, in which Lord Kenyon is said to have held that a grand juror may disclose the name of a witness who testified before the body, has been doubted, and it has been denied that it can be supported on principle. (Starkie, 4th part, p. 908, tit. “ Malicious Prosecutions.” As to the objection to the instructions, there is none of the evidence preserved in the record, and we can not therefore ascertain whether the plaintiff was injured or not by those that were given.

Affirmed.

The other judges concur.


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    Baker et al., Respondents, v. Mockbee, Appellant.
    1. Judgment affirmed because no exceptions were taken to the admission or exclusion of evidence, and no instructions asked, given or refused.

      Appeal from Kansas Cowrt of Common Pleas.

      Ryland, for appellant.

      Pate, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

This case was tried by the court without a jury on appeal from a justice of the peace, and as no exceptions were taken to the admission or exclusion of evidence, and no instructions were asked, given or refused, the record does not present any question of law for the determination of this court.

At the close of the evidence, the defendant moved the court to dismiss the suit because there was no agreement in writing, signed by the defendant, to take the case out of the statute of frauds; but, conceding that the motion ought to be considered as an instruction, it was properly denied, because the evidence left open the question of fact whether the credit was given originally to Caffrey or the defendant; for, though the circumstance that the goods were charged to Caffrey on the plaintiff’s books was strong evidence to show that he was the primary debtor, it was not conclusive as a matter of law.

The judgment is affirmed,

the other judges concurring.


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    Altum, Respondent, v. Arnold, Appellant.
    1. Where cases commenced since the revised code of 1855 -went into effect are tried by the court without a jury, questions of law should be raised by instructions, or declarations of law.

      Appeal from Crawford Circuit Court.

      Arnold, for appellant.
   Richardson, Judge,

delivered the opinion of the court.

This suit was commenced since the revised statutes of 1855 took effect, and was tried by the court without instructions, and without raising any questions of law during the progress of the trial. Therefore, according to the settled practice of this court, which has been established by a series of decisions and recognized in several cases at the present term, the judgment must be affirmed.

The other judges concur.


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    Johnson, Defendant in Error, v. McHenry, Plaintiff in Error.
    1. It is not necessary that the petition in a suit (under the mechanic’s lien act of 1845, R. C. 1845, p. 735, sec. 7) to enforce a mechanic’s lien should contain a prayer for a special execution against the property alleged to be charged with the lien; if the account filed with the petition and referred to therein corresponds with that filed as a lien demand, it sufficiently appears that the object of the suit is the enforcement of the lien.

      Error to Greene Circuit Court.

    Andrew Johnson furnished materials for and performed work and labor on a house belonging to John McHenry. He filed his lien on the 16th of January, 1855. On the 1st of February he commenced the present suit against said Mc-Henry, in the ordinary form, on an account for materials furnished and work and labor done. The petition contained no prayer for a special execution against the building upon which the labor, &c., had been expended. The petition referred to a bill of items filed therewith. There was also filed with the petition the lien account that had been filed as a lien against said building. The items of this account or statement were the same as those set forth in that referred to in the petition.
    The defendant appeared and answered. He withdrew his answer. Judgment by default was then rendered against him at the March term, 1856, and an inquiry of damages awarded. This judgment by default was afterwards set aside, and plaintiff was permitted to file an amended petition which contained a prayer for a special judgment against the property charged with the lien. The court refused to strike out this amended petition. At the September term, 1856, judgment by default was again rendered against defendant, and it was ordered that an execution should issue against the property charged with the lien.
    Hendrick, for plaintiff in error.
    I. The court erroneously and irregularly suffered the plaintiff to amend his petition. The special judgment also was irregular. Judgment was rendered, on the amended petition, which was not filed in time to bind the real estate. Suit must be brought within twelve months. Suit was not brought on the lien in this case until the amended petition was filed.

      F. P. Wright, for defendant in error.
    I. The defendant having once appeared and answered, it was proper to permit plaintiff to amend his petition. The defendant appeared and moved to strike out the amended petition, and there was no necessity for another service on him: The amended petition was not in the nature of a new suit; it was only designed to make the first petition more definite.
   Scott, Judge,

delivered the opinion of the court.

The seventh section of the act concerning mechanics’ liens provides that whenever any person shall wish to proceed against any property, upon which he shall have a lien, he may commence his suit in the ordinary form, and shall have judgment against the original debtor for the amount that shall be found due him. (R. C. 1846, p. 735.) The practice act of 1849, art. 7, sec. 4, directs that when the items of an account exceed twenty in number, a party may file with his pleading a copy of the account and relieve himself from the burden of setting forth in his pleadings the items composing it. As a person examining the record would see that the account filed with the pleadings and the one filed with the claim for a lien corresponded, he would be sufficiently informed that the suit was for the purpose of enforcing the lien. In the case before us, the petition refers expressly to the account filed along with it. We see no necessity for the amended petition, as the petition showed that its object was to enforce a lien. We do not consider that any special prayer for execution against the property on which the lien had attached was necessary. It may be that another than the debtor is the owner or possessor of the property, in which case a scire facias would be necessary before an execution could be issued against the property. After the judgment is rendered for the debt due, then the court determines the course to be afterwards pursued. It will award execution, or refuse it in the event a scire facias is necessary.

No point was made in the court below in relation to the item for a coffin. Whether it was a thing for the making of which the law conferred a lien was a question not raised on the trial, and it can not now be raised for the first time in this court.

The same observation may be made respecting the signboards.

Judge Napton concurring,

the judgment is affirmed.


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    The State, Defendant in Error, v. Andrews, Plaintiff in Error.
    1. Each act of selling liquor without license is a distinct offence for which the party so doing may he prosecuted by a separate indictment or by different counts in the same indictment; when the defendant pleads that the offence charged against him is the same of which he had been previously convicted, the onus is on him to sustain his plea; it is not sufficient for him to show that the evidence adduced against him would have supported the first indictment because it would have been sustained by proof of any act of selling within twelve months before the finding thereof.
    2. In all cases in which a person arraigned upon an indictment does not confess the indictment to be true, a plea of not guilty should be entered, and the same proceedings should be had as if he had formally pleaded not guilty to the indictment. (R. C. 1855, p. 1181, § 5.)

      Error to Chariton Circuit Cov/rt.

    This was an indictment for selling liqnor without license. The defendant pleaded a former conviction for the same offence. The cause was tried by the court without a jury. The court found the defendant guilty as charged. The court refused certain declarations of law, the erroneous character of which is apparent from the opinion of the court.

      Prewitt, for plaintiff in error,
    cited Greenl. Ev. § 36 ; State v. McGrath, 19 Mo. 678; Brown v. King, 10 Mo. 57; R. C. 1855, p. 1181; 11 Mo. 363; State v. Yaughn, 26 Mo. 29; State v. McGee, 8 Mo. 495.)

      Ewing, (attorney general,) for the State.
    I. The sales of liquor were distinct. Each sale was a distinct offence. (R. 0. 1855, p. 683, 686; 11 Yermont, 91; 1 Archbold, 113-4.)
   Richardson, Judge,

delivered the opinion of the court.

We think that the instructions asked by defendant were properly refused, because they all assume, as a matter of law, that the misdemeanor for which the defendant was on trial was the same offence for which he had previously been indicted and convicted. Each act of selling is a distinct offence, for which the defendant may be prosecuted by a separate indictment, or by different counts in the same indictment ; and when it is pleaded that the offence charged in both indictments is the same, the averment may be established by parol evidence and is to be proved by the defendant. To sustain the plea in this case, it was incumbent on the defendant not only to produce the record of the former conviction, but to show by testimony that he had been previously tried for identically the same offence as the one for which he was then prosecuted; and it was not sufficient to show that the evidence offered on the last trial would have supported the first indictment because it would have been sustained by proof of any act of selling within twelve months before the finding thereof. Whether, therefore, the offences charged in both indictments were the same, was a question of fact; and, though the court on the evidence would have been authorized to have found the issue on the plea for the defendant, the conclusion from the proof ought not to have been announced as a declaration of law.

The judgment, however, must be reversed on a point of practice. The only plea in the record is the plea of autrefois convict, and the finding of the court was not responsive to the issue tendered by the plea. It was the duty of the court to have had the plea of not guilty entered, for the statute provides that in all cases when the defendant 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. (R. C. 1855, p. 1181, § 5; Walder v. State, 11 Mo. 363.)

The judgment will be reversed and the cause remanded.

The other judges concur.


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    Stanley, Defendant in Error, v. Bunce, Garnishee, Plaintiff in Error.
    1. Whenever it appears from the face of an assignment of a stock of goods to a trustee for the benefit of certain designated creditors that it is the intent of the parties thereto that the grantor shall be allowed to remain in possession of the property assigned and to dispose of the same in the usual course of business until default, such deed of assignment should be held to be a conveyance in trust to the use of the grantor within the first section of the act concerning fraudulent conveyances, and consequently void as against creditors.
    2. It is not necessary that the deed of assignment should expressly provide that the grantor should remain in possession and continue to dispose of the goods in the usual course of business; it is sufficient to avoid the assignment that such appears, from a consideration of the whole instrument, to be the intent of the parties.

      Error to Cooper Court of Common Pleas..

    This was a suit by attachment against W. W. Norris. One Harvey Bunce was garnished as having in his hands funds belonging to defendant Norris. Upon the trial of the issue raised as between the plaintiff and the garnishee, the plaintiff adduced in evidence two deeds of trust executed by Norris to Bunce as trustee. Plaintiff contended that these deeds were fraudulent in law on their faces as to creditors. The court ruled that said deeds were fraudulent in law. A verdict was rendered against Bunce, the garnishee.
    The character of the deeds is, it is conceived, sufficiently apparent from the opinion of the court.

      Adams and Leonard, for plaintiff in error.
    I. There is no clause in either deed which reserves any right or benefit to Norris. Norris is divested of all right to the property and of all control over it. He had no right whatever to retain the goods for one moment after the execution of the deeds, and he could not, under the clause with respect to the renewal of the stock or any other, dispose of the goods for his own use or for any purpose whatever. Bunce had the right to take possession immediately under the deeds, which he accordingly did. (See Page & Bacon v. Gardner, 20 Mo. 508 ; Milburn v. Waugh, 11 Mo. 869 ; Brooks v. Wimer, 20 Mo. 503 ; Walter v. Wimer, 24 Mo. 68 ; Martin y. Maddox, 24 Mo. 575.)

      Douglass and Hayden, for defendant in error.
    I. The deeds were made in trust to the use of Norris, and were consequently void. (See 24 Mo. 575 ; id. 63; 20 Mo. 503 ; 15 Mo. 459; 1 Smith L. C. 59; 4 Comst. 580; Bur-rill on Assignments, 70-72,171,180; 7 Paige, 568 ; 4 Barb. 546; 10 Watts, 237; 3 Mo. 297.)
   Napton, Judge,

delivered the opinion of the court.

We do not perceive any thing in this case to distinguish it from that of Brooks v. Wimer, 20 Mo. 503, and several other cases deciding the same principle. In this case of Brooks v. Wimer, the grantor conveyed a stock of goods to a trustee for the benefit of certain creditors named, but reserved the right to himself to sell the goods in the usual course of his business until default made in the payment of some debts secured by the deed. This instrument was declared void on its face because of the reservation of the right of disposition without accountability. It was held a conveyance to the use of the person making it within the meaning of the first section of an act concerning fraudulent conveyances. In the case of Walter v. Wimer, 24 Mo. 62, the assignment contained a similar provision, but the grantor also agreed faithfully to apply the proceeds of his sales towards replenishing his stock, and made the now stock thus acquired, as well as the old, subject to the trust. This additional provision was however held to make no difference ; the deed was held void.

In the present case the same provision is found, not perhaps in lime verba, but it is just as necessary and natural an inference from its terms as if it had been so declared in the precise language of the deeds referred to in the cases cited. In one of the deeds (they are both substantially alike) Norris conveys bis present stock of goods, and also “ all goods, wares and merchandise which the said Norris may at any time within twelve months purchase for the purpose of renewing’ or replenishing said slock” There is also conveyed all his bonds, notes, accounts, &c., then on hand, and also all such as may be created at any time within one year from the date of these presents.” The condition of this conveyance was, that whereas the beneficiaries were securities for Norris and “ had agreed to become the sureties for said Norris from time to time for the next ensuing one year not to exceed ten thousand dollarsthen if Norris saved them harmless from these liabilities, already incurred or hereafter incurred, the deed was to be void; but in the event that any of them was compelled to pay any liability incurred in this way, the trustee was authorized to proceed to sell, &c.

The intent of this deed was, that Norris should retain possession of his goods and proceed with his business as a merehant. It was impossible for Norris to renew or replenish a stock of goods under the control and in possession of a trustee. It was equally impossible for him to create new debts, accounts, &c., under such circumstances. The ces-tuis que trust contemplated the probability of being called upon to endorse additional notes in the course of the year and provided for this contingency; all of which could have proceeded on no other supposition except that Norris was to continue his business. The trustee could, on certain contingencies, take possession, just as was provided in the deeds in Brooks v. Wimer, and Walter v. Wimer; but until this contingency happened, he had no right to the possession under the deed, and no creditor outside of the assignment could touch the property. It was completely locked up against all the world, except the creditors named in the assignment and Norris himself, and he could dispose of and make a good title to every dollar of the property. All this appears upon the face of the deeds. It is not a question of fact or intent arising from any thing outside of the deeds, but is the natural, indeed we think the only, interpretation to be put upon the deeds themselves. The case, then, falls within the principle heretofore decided; and the judgment of the circuit court must be affirmed.

Judge Scott concurring.


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    Blue, Appellant, v. Penniston, Interpleader, Respondent.
    1. Where a suit is commenced by attachment on a promissory note and a person interpleads claiming the property attached as trustee for the wife of the defendant in the attachment, by virtue of a deed executed and recorded two years before the date of the note sued on, the plaintiff may show that the note sued on was given for a debt that existed before the execution of said deed.
    2. The acts of the grantor (the father of the cestui que trust in said deed) and her husband (the defendant in the attachment suit) in selling certain of the slaves embraced in said deed, are competent evidence as bearing upon the question of fraud in its execution.

      Appeal from Linn Circuit Court.

    This was a suit by attachment upon a promissory note executed by John K. Kerr, dated February 20, 1845. A negro woman and her two children were attached as the property of said Kerr. Francis P. Penniston interpleaded, claiming said slaves as trustee for Mrs. Kerr, by virtue of a deed executed by Robert P. Penniston, the father of Mrs. Kerr. This deed was dated February 28, 1843. It was acknowledged and recorded the day of its date, and conveyed certain slaves to said interpleader in trust for the separate use of Mrs. Kerr. Evidence was introduced showing that the slaves embraced in said deed had been in possession of said John K. Kerr for several years before the date of said deed. Evidence was also introduced bearing upon the question whether there had been a gift of said slaves to Mrs. Kerr. The plaintiff offered to show that the note sued on was given for a debt that existed previous to the execution of the said trust deed of R. P. Penniston. The court refused to permit the evidence to be introduced.

      The court, among other instructions given at the instance of the interpleader, gave the following: “ 3. The acts of Robert Penniston and John K. Kerr in selling Ellen, one of the slaves mentioned in the deed, are no evidence to invalidate the deed.”
    The jury rendered a verdict for the interpleader.

      Harris, for appellant.
    I. The court erred in excluding the evidence offered by plaintiff. He should have been permitted to show that the debt for which the note was given was contracted prior to the execution of the deed of trust. (James v. Briscoe, 24 Mo. 504 ; 4 McCord, 232.)
    II. The court erred in giving and refusing instructions. (5 Mo. 493 ; 13 Mo. 67 ; .24 Mo. 504; 22 Mo. 341; 7 Mo. 249.)

      Prewitt, for respondent.
    I. It is immaterial whether the debt sued on was created before or after the execution of Penniston’s deed. The question in issue was whether the father had given the slaves to his daughter some two or three years before making the deed. The plaintiff should have shown the materiality of the offered testimony. (15 Mo. 244.)
    II. The third instruction was correct. The court did not err in giving or refusing instructions. (R. C. 803 ; 16 Mo. 114; 25 Mo. 301; 14 Mo. 354; 25 Mo. 301; Hill on Trustees, 419.)
   Napton, Judge,

delivered the opinion of the court.

Upon a more careful examination of the case since the argument, we have not been convinced of the propriety of excluding the testimony offered to show the true date of the plaintiff’s debt. The evidence, it is conceded, was competent, and the only ground of its exclusion was irrelevancy. This is rather unsafe ground when the question at issue is one of fraud — a matter about which there is seldom to be found direct and positive proof. The only question in this case was, whether the deed of Robert Penniston was an after-thought, a contrivance to defraud some creditor or creditors of Kerr. To enable the plaintiff in the attachment to make any headway in establishing this allegation, it would of course be very material for him to show that Kerr was in debt at the time of the execution of the deed. The note upon which suit was brought was dated after the deed, and, without explanation, upon the face of the transaction alone, it would be rather an up-hill labor to convince a jury that a deed made nearly two years before the debt was intended as a fraud upon the creditor. To get a starting point for an attack upon the deed, it was essential for the plaintiff to show that the debt was really due two or three years before the note was given, and this is the evidence which was offered and excluded.

In connection with this point, we may also express our doubts of the propriety of the third instruction which the court gave for the interpleader. In this instruction, the court declared the acts of Robert Penniston and John K. Kerr, in selling certain slaves enumerated in the deed some time after it was executed, were no evidence to invalidate the deed. This instruction virtually excluded the testimony on this point from the jury. Undoubtedly the acts of the father and the husband could not and ought not to affect any vested interest of the wife and daughter; but it will be observed that the question really at issue was, whether Mrs. Kerr had any interest; in other words, whether the deed was bona fide and valid, or a mere contrivance to defraud Kerr’s creditors. The acts of Kerr and the father, who was the maker of the deed, are introduced to bear on the question, to explain the character of the original transaction. What weight such evidence would have is another question. It may be admitted that by itself it would be entitled to but little; but in questions of this nature — mostly explained by circumstances in themselves perhaps trivial, remote and disconnected, but when combined and brought together capable of tending to as satisfactory conclusions as the most plain and direct evidence — it will not devolve on the court presiding over the trial to exclude each piece of detached evidence, as it is offered, because of its insufficiency or its apparent irrelevancy. It may be that the evidence is so unsatisfactory to the court that a verdict found on it would be set aside; but even this we do not conceive will warrant the judge in excluding it. If it is competent and has a tendency to explain the issue, it ought to be received; and when the whole case is put to the jury and acted on, it will be proper for the court to say whether a verdict based on the evidence will be permitted to stand.

With the concurrence of Judge Scott,

the judgment is reversed and case remanded.