text:
    Budde’s Administratrix, Plaintiff in Error, vs. Allen, Defendant in Error.
    1. Under the 4th section of article 7 of the practice act of 1849, where an account sued upon, containing more than twenty items, is annexed to the petition and averred to be made a part of it, it seems that the account may be considered as set forth in the petition. At all events, the party should be permitted to verify the account by affidavit at the trial.

      Error to St. Louis Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      A. P. &. R. B. Garesché, for plaintiff in error.

      Glover & Richardson and Burke & Glover, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

The question in this case is one that arises under tbe new code, and it depends alone upon tbe construction and proper application of the fourth section of tbe seventh article of tbe code.

Here is a petition by plaintiff for work and labor and materials furnished for defendant by plaintiff. Tbe petition avers that tbe particulars of all which, and also tbe credits thereon, will appear by an account hereto annexed, and made part of this petition.

The account was filed with tbe petition, and it contained more than twenty items. The petition was properly sworn to. Tbe answer of tbe defendant denied owing tbe plaintiff any thing ; denied that the work done or materials furnished, whatever they may be, were by tbe defendant’s order or authority, &c. During tbe progress of the suit, the plaintiff died, and his administratrix was made a party, and carried on the suit as plaintiff.

On the trial, the plaintiff called a witness to prove the account annexed to the petition ; the defendant objected to the plaintiff’s giving any evidence in support of said account, for tbe reason that the account was not verified by affidavit, which objection was sustained by the court; plaintiff excepted to the opinion of the court. The plaintiff then moved for leave to amend, by verifying said account by affidavit. The court refused to grant the leave, alleging a want of power to do so, as the provisions of section four, article seven, new code, were intended as a penalty. The plaintiff excepted to this decision of the court, took a nonsuit, with leave to move to set the same aside. The plaintiff afterwards moved to set aside this non-suit, which motion being denied, the case is brought here by appeal.

The fourth section of article seven, alluded to, is as follows : “ It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, when they exceed twenty in number; but if they be not set forth, he shall deliver to the adverse party or file with his pleading, a copy of the account, verified by affidavit, as herein required of petitions and answers ; and if not so set forth, filed or delivered, he shall be precluded from giving evidence thereof.”

The pleader in this case evidently intended the account to be considered as part of his petition ; he annexed it, and by express words makes it a part of his petition, and whether we shall consider it under this special allegation, as forming a part of the petition or not, it very clearly afforded sufficient grounds for the court below to have allowed the plaintiff leave to amend the petition, by verifying the account. Indeed this court is strongly inclined to the opinion that the account in this case, under the peculiar phraseology, ought to have been taken as part of the petition, so as to be considered as verified by the oath of the petitioner. "We are aware that it has been held in some cases, that notes or bonds sued on were not part of the petitions in those cases, but these decisions do not preclude the idea that the pleader can make such instruments part of his petition. However this may be, it is the opinion of this court that the court below should have permitted the plaintiff to verify the account at the trial by his affidavit; that the refusal to permit this, and tbe nonsuiting the plaintiff, and the overruling of the motion to set aside the nonsuit, are all erroneous rulings of the court below.

The judgment of the Circuit Court is reversed, and this cause is remanded ; the other judges concurring.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    Nelson, Appellant, vs. Beveridge, Respondent.
    1. Under the 8th section of the 3d article of the statute of limitations of 1845, it is not necessary that the acts there specified should he done by the debtor before the cause of action accrues, to prevent the statute from running. If done at any time within the period allowed for the commencement of the action, the result is, that the debtor loses the benefit of the time which had previously run, as well as of that during the continuance of the acts which prevent the commencement of an action.

      Appeal from, Si. Louis Law Commissioner'’ s Court.

    Action commenced in February, 1854, on a note dated September 23, 1841, payable one day after date. ' The defendant relied upon tbe statute of limitation. At tbe trial, there was evidence tending to show that the defendant suddenly removed from St. Louis, where he had previously resided, in the fall of 1841, and that it was not known to his neighbors where he had gone to. On the other hand, there was evidence tending to show that his removal was open, that he went to Palmyra, in this state, and that it was generally known among the neighbors where he was going, and that one of them received letters from him after he left. The court instructed the jury that the case was governed by the statute of 1835, and not of 1845 ; and that the statute having once begun to run, the subsequent absence of the defendant did not suspend its operation, and that it was a complete bar to the plaintiff’s recovery.

      M. L. Gray, for appellant.

      Knox & Kellogg, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The note sued upon was given 23d of September, 1841, payable one day after date, and the maker, it is alleged, subsequently in October of the same year, absented himself so as to bring himself within the 8th section of the 3d article of the present revised statute of limitations, corresponding with the 8th section of the same statute in the revised code of 1835. The court below holding that the case was regulated by the act of 1835, (the cause of action having accrued before the passage of the present statute,) deckled that the statute, having commenced running before the obstruction existed, continued, notwithstanding the subsequent occurrence of it. We think otherwise, and suppose that the case is governed by the act of 1845, as that statute contains no provision similar to the provision in the 7th section of the Bd article of the act of 1885. This is immaterial, however, in the present case, as the clause upon which the present question arises is to be found in both acts.

The rule that when the statute commences running, it is not interrupted by the occurrence of a subsequent disability, has nothing to do with a case of this character. The statute of limitation, after providing that actions shall be brought within the times limited for that purpose, provides that, if the party be a minor or a married woman, or insane, or imprisoned, at the time the cause of action accrues, he shall be allowed the same time to sue in, after the removal of the disability; and in the construction of this clause, the courts hold, according to the letter of the law, that the disability must exist at the time the cause of action accrues, a:qd that, if the right of action has accrued, and the statute begun to run, the occurrence of a subsequent disability will not avail. Here, however, as applicable to this case, the rule has nothing to stand on — neither the letter nor the intent of the law, and in a majority of the cases for which the law was intended to provide a remedy, would operate as a repeal of the statute. The intention of the law was to deprive a party who had ran off, or by any other improper conduct on his part had obstructed the bringing of the suit at any time during the period allowed for that purpose, of the benefit of the statute in reference to the time that had previously elapsed, and upon the removal of the obstruction to revive the cause of action for the whole period originally allowed.

A reference to the history of our legislation upon this subject, and to the change which the language of the law has undergone, will satisfy us upon this matter. The provision came with the first statute of limitations on the 4th of July, 1807, (1 Ter. Laws, 144, sec. 4,) and was taken from the Kentucky act, (Ky. statutes by M. & B. 2 vol. 1189, tit. Limitations,) and came there from Virginia.

The words of our first act are : “If any defendant shall abscond, &c., he shall not be permitted to plead this act in bar to any suit, action, indictment or information” — almost identical with the words of the Kentucky statute, and in Ormsby v. Letcher, 3 Bibb, 269, it is said : “ It cannot be admitted, as was urged in argument, that whenever the statute of limitations begins to run, no subsequent obstruction to bringing the action can bar a defendant from pleading it. Such a construction would not only be contrary to the spirit, but a direct violation of the letter of the act. It is true, in relation to other provisions in the act, the rule is settled that when the statute begins to run, no subsequent disability will prevent its running. But the application of this rule, we apprehend, should be confined to those disabilities which, by the provision of the act, should exist when the cause of action accrued, and cannot affect those cases falling within the proviso in question. If, therefore, at any time within the period required by law for bringing or maintaining his action the appellee was obstructed from bringing it, by any of the means mentioned in the proviso to the act, the statute cannot avail the appellant as a bar to the appellee’s right of recovery.” The intention of the legislature seems to have been, by the provision, as it was originally framed, to make such conduct, on the part of the party, a perpetual forfeiture of the protection of the statute in reference to the particular cause of action that had been obstructed. At the revision of 1885, however, the language was changed, and the words now are : “If any person, by absconding, &c., prevent the commencement of any action, &c., such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to have been so prevented.” So that now, instead of a total forfeiture of the protection of the statute, the effect of this improper conduct is to annul, as part of the statute time, all the time that had elapsed before the obstruction occurred, and to allow the party obstructed the whole time after the removal of the obstruction that was originally allowed him for bringing the action.

The judgment will be reversed and the cause remanded, but it must be observed that we express no opinion upon the sufficiency of the evidence to make out a case within the provision. It is not enough that the party has removed from his former residence, but the statute evidently contemplates that, in order to bring him within it, he must have been guilty of some improper conduct, which has had the effect of obstructing the bringing of the suit. (Sneed v. Hall, 2 A. K. Marshall, 22. Wilson v. Koontz, 7 Cranch, 203.) The judgment is accordingly reversed, and the cause remanded.


author: Scott, Judge,

text:
    Norcum, Plaintiff in Error, vs. Sheahan, Defendant in Error.
    1. Where a deed for the wife’s estate in land, executed hy husband and wife during the wife’s minority, is avoided by a second Heed executed after the wife’s majority, a title acquired by the grantee in the first deed, by adverse possession, to other interests than those conveyed by that deed, does not enure to the benefit of the wife or her grantee in the second deed. (Norcum v. Gaty, 19 Mo. Rep. aifirmed.)
    2. A deed for the wife’s land, executed by husband and wife during her minority, so far as it operates upon her estate, may be avoided by a second deed executed by husband and wife after her majority.

      Error to St. Louis Court of Common Pleas.

    This was an action of ejectment begun in 1848, for a lot in block 16 of the city of St. Louis. The defendant was in possession under a deed executed by Joseph Yasquez and wife in 1816, during the wife’s minority. The plaintiff claimed under a deed executed by the same parties in 1846, after the wife had become of age. The lot was part of a lot confirmed to the heirs of Nicholas Hebert dil Lecompte, of whom Mrs. Vasquez was one, and was conveyed to her by a deed from a portion of the other heirs ; but it appeared that there were some of the heirs whose title she did not acquire. The facts are more fully stated in the report of the case of Jforcum v. Gaiy, 19 Mo. Rep. 65.
    Mr. Shepley and Mr. Picot, for plaintiff in error.
    In addition to the points made in the case of JYbrcum v. Gaty, 19 Mo. Rep. 65, Mr. Picot filed a printed argument upon the point that the conveyance by the husband of Mrs. Yasquez, in 1816, worked a discontinuance of her estate, and that she could not avoid it until the removal of her coverture. The line of argument pursued is indicated in the opinion of the court. The following authorities were cited : (Lewis v. Cook, 13 Iredell, 195. 16 Pick. 165. Co. Litt. 67 a. 1 Saunders, 253, note 4. 1 Roper on Husb. & Wife, 3, 55, 56, 59, 63, 91. 1 Bacon’s Abr. 695. 2 Kent’s Comm. 133. 1 Preston on Abstracts, 335. 1 Hilliard on Real Prop. 120, §.3. 1 Bacon’s Abr. 724, 726. 3 Thomas’ Coke, 93, note A, 113,116, note U, 305, note L. Mr. Butler’s note 278 to Co. Litt. 325 a. Littleton, section 594. Co. Litt. 326 a. 1 Roper, 59, 91. «Co. Litt. 3 a, 357 a, 51 a. 4 Rep. 61. 2 Preston on Abstracts, 204, 210. 3 Id. 25. Wivel’s case, Hobart, 45. 3 D. & E. 365. 3 Thomas’ Coke, 92, note A. 1 Preston on Abstracts, 362, 368. 1 Mo. 553. 7 Mo. 337, 356. 4 Mo. 380.)

      W. L. Williams, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

This case is in all respects like that'of Norcum v. Gaty, 19 Mo. Rep. The facts are the same as well as the instructions. The instruction on which the judgment in that case was reversed is equally fatal to this.

The instruction was given at the instance of the plaintiff', and assumed that the possession of Mullanphy was adverse to any other claimant under Nicholas Hebert Lecompte, and that such possession was available as a bar to Marie Louise, the wife of Joseph Yasquez, against such claimant.

We do not see the principle on which this instruction can be sustained, as to that portion of the lot not conveyed by the deed of Marie Louise and her husband; as to this interest, Mullanphy was as any other adverse claimant. Because Mrs. Yasquez had a right to enter, after the death of her husband, on a part of the lot, how could such right affect other portions, which, it is admitted, Mullanphy held by an adverse title ? What prevented such possession from being adverse to her as well as to the other heirs of Nicholas Hebert Lecompte ? The deed of Vasquez and wife conveyed the life estate of Yasquez in his wife’s land to Mullanphy in a portion of the lot. The wife’s right taking effect in possession after the determination of that estate, could not be more extensive than that in which her husband had a life estate. On what ground can Mrs. Yasquez, or those claiming under her, derive any advantage to a portion of the lot not included in the deed, held adversely by Mullanphy? If, as to that part thus held, Mullanphy’s possession was adverse as to any one, why not adverse as to Mrs. Yasquez and those claiming under her?

Another question has been raised by Mr. Picot, counsel for the plaintiff in error, and pressed upon us in an ingenious argument. The point is, that the alienation by Yasquez and wife to Hanley operated as a discontinuance of the wife’s estate ; that an estate in fee passed by their deed, and there being nothing on which the subsequent deed could operate, it was a nullity and passed no interest; that Mrs. Vasquez could only avoid the deed of herself and husband after his death, and a deed made before that time would be inoperative, as all her interest had previously passed, subject to be defeated after his death.

At common law, by the marriage, the husband was seized of a freehold estate in his wife’s land, and this estate enabled him, by a feoffment with livery of seizin, to discontinue his wife’s estate, or turn it into a mere right of action, which could only be maintained by her or her heirs after the death of her husband. (3 Coke, 93.) The statute of 32 Hen. 8, ch. 28, sec. 6, enacted that the alienation of the wife’s freehold by the husband should not work a discontinuance, and gave her a right of entry, notwithstanding his alienation. There was no way at the common law by which a wife, on becoming a party with her husband to a mere feoffment, could convey her lands. Being covert, her deed was void. The statute of uses enabled the owner of lands to convey them, without the formality of a livery of seizin. Hence, the lease and release, the grant, the bargain and sale, modes of conveyance deriving their origin from that statute, are called rightful conveyances, because, conveying no other interest than the owner had, they worked no disseizin nor discontinuance of themselves, but only produced that effect by covenants contained in them. The common law mode of conveyance by feoffment with livery of seizin, with its incidental effect of defeating and destroying other estates limited on the same lands by disseizin, discontinuance, &e., has never been in use in this state. Declarations in opinions that a deed of bargain and sale was equivalent to a feoffment, mean nothing more than that such a conveyance is as effectual to pass the estate of the bargainor as the feoffment at common law. The idea was never entertained that a deed of bargain and sale had the potency of a feoffment with livery of seizin, in displacing, defeating or discontinuing any estates limited on the land conveyed. JYemo dat quod non habet was the principle applicable to that mode of alienation, unless by covenants it was made to have a more powerful effect against the grantor and those claiming in privity with him.

From what has been said, it is obvious that the husband’s deed of bargain and sale can convey no greater interest in his wife’s land than the law confers upon him. He is entitled by law to a freehold estate during his life or coverture, according to circumstances. If the wife is able to convey and join with him, adopting the ceremonies required bylaw, her estate passes irrevocably. If the prescribed ceremonies are not observed, her deed is void and her interest in her lands remains in her, and may be subsequently conveyed by a deed executed in conformity to law. Had the wife been an adult, her deed would have been effectual, and her estate would have passed. As it was, it did pass. The deed of Vasquez and wife conveyed a defeasible estate in fee ; and had it never been defeated, their vendee’s title would have remained valid. So the real question in this case is, whether a married woman, being under age, and conveying her estate by joining in a deed with her husband, can, after she has attained her majority, but is still married, disaffirm that deed, by a conveyance to another of the same land, executed by herself and husband, the disaffirmance taking effect after the death of her husband.

Did this question depend on the common law for its solution, it would be answered in the negative. By the common law, lands in the adverse possession of another could not be conveyed, nor could a freehold estate be conveyed to commence in futuro. Neither of these principles obtain in our system of laws. Without an entry, at common law, livery of seizin could not be made, which was necessary to give effect to a feoffment. No right of entry would exist on lands which the husband had lawfully conveyed. His life estate continuing in the first vendee, there could be no right of entry on his estate. But, as under our system, lands in the adverse possession of another may lawfully be conveyed, and as estates of freehold may be made to commence in futuro, there is no objection founded in law to the subsequent conveyance of the husband and wife. Its operation is not at all affected by tbe previous conveyance made during tbe wife’s infancy. It must be admitted that a husband and an adult wife, by observing tbe requirements of law, may as effectually dispose of tbe wife’s lands as-sbe berself could. If Yasquez and wife, upon bis wife’s attaining ber majority, bad reconveyed tbe land to Mullanphy, can any one doubt but that bis title would have been confirmed ? Now, if they could at that time affirm tbe deed, why may they not dis-affirm it ?

Those cases which bold that a bare conveyance, without entry, to another of lands previously conveyed, is not sufficient to disaffirm a previous conveyance made by an infant of bis lands, have arisen in states where the principles of tbe common law regulating conveyances of lands held adversely still prevail, and are not applicable here, where they have been abolished. 1 American Lead. Cases, 114.

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


author: Ryland, Judge,

text:
    Reagan, Respondent, vs. The Pacific Railroad, Appellant.
    I. The burden of proof is on the party seeking to subject a railroad company to liability as garnishee in a suit against a contractor, to show facts which would have enabled the contractor himself to maintain a suit against the company.

      Appeal from St. Louis Law Commissioner’s Court.

    The case is stated in the opinion of the court.
    P. E. Burke and John Decker, Jr., for appellant.

      Lewis & Henning, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

Reagan sued Matthew H. Ryan and John Powers, before a justice of tbe peace, by attachment, and garnished tbe Pacific Railroad Company. He obtained judgment against the defendants, and also against the garnishee ; from this judgment an appeal was taken to the law commissioner’s court. The plaintiff recovered judgment on the appeal, which was, on motion, set aside, and a new trial ordered. The plaintiff again recovered judgment against the garnishee, who brings the case here by appeal.

Matthew H. Ryan and John Powers were contractors of the Pacific Railroad Company, under special contract to do the graduation and masonry on sections seven and eight of said road. This contract was made by them in the name of Matthew H. Ryan & Co. The contract was partly in writing and partly in print, and contained numerous specifications, or, more properly, sections under the general head of specifications. Some of these will be noticed as of importance, and others not, in this opinion.

“Sec. 40. Should the contractor, at anytime after sixty days from the beginning of the contract, not be found to pro - ceed with all or any sections of his work, in such a manner as to secure, in the opinion of the engineer, the entire completion of the work, on the said section or sections, within the time allowed by this contract, it shall be the duty of the engineer so to notify him; and should he not then, within ten days of the date of the said communication, make the necessary exertions and arrangements to compensate, in the opinion of the engineer, for previous negligence or inactivity, and to insure the fulfillment of his contract in due season, the engineer shall notify the president of the company and the first party to that effect, and the contract shall then be declared and considered null and void, and the engineer shall be at liberty to employ other persons to fulfill the contract, and finish all or any parts of the work of graduation, masonry or otherwise, on said section or sections, and the contractor shall be liable for any damage, or for any extra expense caused by his neglect to fulfill his engagements,” &c.

“ Sec. 41. In case of failure to fulfill the contract, the usual percentage which has been retained, is hereby declared to be forfeited to the company as a penalty incurred in consequence of said failure ; and no moneys which may be due the contractor, over and above that percentage, shall be paid until the contract is completed; and should the employment of other persons increase the cost of the work, such moneys shall be applied toward that additional cost,” &c.

Sec. 51. It is understood and agreed, that said Matthew H. Ryan & Co. shall take ten per cent, of the amount that shall become due and payable under this contract, in stock of the Pacific Railroad.”

Sec. 52. Payments, conditional on the true and faithful performance of this contract, will be made monthly, as the work advances, at the estimate of the engineer, reserving ten per cent, until the completion of the contract. These payments refer only to work completed, and it will be entirely discretionary with the company to make payments on account of materials delivered, but not applied permanently to the work ¡for which they may be intended.”

This contract was dated 24th December, 1851. The bill of 'exceptions shows that there was but one witness examined. He -was the chief engineer of the Pacific Railroad Company. From 'his testimony, it appears that Ryan was the acting man ; that about the time of payment of July 10th, 1852, Ryan received ’the monthly estimate and something in advance, and disappeared from the work ; that the work stopped on account of Ryan’s going away ; that Powers, Ryan’s partner, came to the witness and offered to go on with the contract, if the ten per cent, retained, as per contract, was paid him. The witness agreed to give him the ten per cent, if he would apply it to the payment of the wages due the laborers for their last month’s work on the sections contracted for by M. H. Ryan & Co. Witness also says that he required security for this. This was not agreed to, and the work was not resumed. Witness stated that .he then considered the contract forfeited or abandoned. Another contract was afterwards made with other parties, at an increased price and cost to the company. The amount of the ten per cent, stock retained, as per contract, at the time of the service of this garnishment, was $748 92. This amount was actually due in stock for the work done by Ryan & Co., under the contract. The witness stated that Ryan & Co. never finished the work contracted to be done by them. The work was afterwards let out, and the company paid for it. It cost some $1,500 more than it would have cost had Ryan & Co. finished their contract. Witness said that he had not seen Ryan since he abandoned the work in July, 1852 ; that Powers agreed to complete the work under Ryan & Co.’s contract, with the exception of the advance of ten per cent. The original article of agreement was also offered in evidence.

Upon this statement, substantially, of the facts, many instructions were given by the law commissioner. We shall notice only one or two of them.

The 4th, as numbered by the record, as being asked by plaintiff, and given by the court, is as follows :

“ The Pacific Railroad is bound to show that the terms of the contract between it and Ryan & Co. were not complied with, before they were empowered to forfeit that contract, and the said road is bound to show that said contract was forfeited exactly in the manner provided therein, before they can withhold any moneys due Ryan & Co. on account of said contract.”

This instruction is erroneous ; it does not place before the jury the law of this case properly. We presume the money here alluded to by the court below was the amount of the ten per cent, retained by the Railroad Company out of the monthly assessments. Was it the intention of the plaintiff below, in asking this instruction, to have the court below declare that this contract could only be declared forfeited in the manner pointed out in t'he 40th section ? Did that section provide against the contingency of Ryan’s receiving the monthly estimates and something in advance thereto, and then absconding ? Or does not Ryan’s absconding and deserting his work put an end to the contract, so far as he is concerned ? It surely put a stop to tbe work, and in suck an event, tbe company cannot be expected to bunt out Ryan and give bim notice of tbeir intention to declare tbe contract forfeited.

This instruction, too, requires tbe court to tell tbe jury that tbe Railroad Company cannot retain tbe ten per cent, on the monthly estimates, (for there was by tbe testimony before tbe court no other money in tbe hands of tbe company, in any manner due or belonging to Ryan & Co., on account of this contract, except this ten per eentage,) unless tbe Railroad Company shall prove that tbe contract was forfeited exactly in tbe manner provided therein.

A few plain principles can settle this case. Ryan & Co. have been sued by Reagan, and tbe Pacific Railroad Company garnished as a debtor of Ryan & Co. Now, tbe testimony discloses a contract on tbe part of Ryan & Co. with tbe garnishee to do certain work on tbe railroad, according to a special agreement, embracing various stipulations. Now, unless tbe Pacific Railroad Company are liable to Ryan & Co., and unless tbe facts in proof would sustain an action in favor of Ryan & Co., against the Railroad Company, that company cannot be liable when garnished as a debtor of Ryan & Co. ; and tbe proof is on tbe part of those who would subject tbe company to this proceeding.

There is nothing worthy of notice on tbe record, in regard to tbe offer of Powers to go on with tbe contract, if tbe company would alter tbe terms of it, by advancing to bim tbe ten per cent, retained by virtue of tbe original contract. He bad a right to complete the contract; not to change it.

Tbe judgment of the court below is reversed, and tbe cause remanded ; tbe other judges concurring.


text:
    Labeaume, Plaintiff in Error, vs. Poctlington, Defendant in Error.
    1. In a petition upon a breach of warranty of soundness in the sale of a horse, it is unnecessary to negative the idea that the defects were apparent.
    2. It seems, that the general allegation of unsoundness, without specification, would be sufficient.

      Error to St. Louis Law Commissioner’s Court.

      H. N. Dedman, for plaintiff in error.

      Spies & Weer, for defendant in error.
   Leonard, Judge,

delivered the opinion of the court.

This was a demurrer to a petition upon a breach of warranty of soundness in the sale of three horses. The grounds of demurrer were the want of allegations in the petition that the alleged unsoundness lessened the value of the horses, and that the diseases were not patent defects, known to the buyer.

The petition shows a general warranty of soundness, contained in a written bill of sale, and contains a general averment of unsoundness, and then proceeds to specify in what that unsoundness consisted, alleging that one of the horses had the spavin, and string-halt, and was badly jammed in the shoulders, and concludes with the averment that the plaintiff was defrauded, and had sustained damage thereby to the amount of one hundred and fifty dollars, for which he asked judgment.

We see nothing in the objections. It is said that if the defects are apparent to the buyer, they are not covered by a general warranty; but it has never yet been said, that we are aware of, that the pleader, in stating his case, must negative the idea that they were patent defects, apparent to the buyer, and we shall not be the first court to say so.

The general averment of unsoundness was deemed sufficient under our old practice, and we see no reason why it should not be considered so under the new system ; but however this may be, this party has specified in what the alleged unsoundness consisted, averring that the horse had the spavin, and the string-halt, and was badly jammed in his shoulders, and this, we think, ought to be taken as sufficient upon a demurrer, even without an express averment that all these ailments lessened the value of the animal.

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


text:
    Smith et al., Appellants, vs. The City of St. Louis, Respondent.
    1. Where the confirmee of a Spanish concession accepts a survey calling for a street along the bank of the Mississippi river, in an incorporated town, as a boundary, he will not be entitled, as a riparian owner, to land subsequently formed by accretion, although his concession may have called for the river as a boundary.

      Jlppeal from St. Louis Court of Common Pleas.

    This was an action for the possession of a piece of land lying on the Mississippi river, east of block 42, in the city of St. Louis. Block 42 is bounded north by Cedar street, east by Main street, south by Mulberry street, and west by Second street, and was confirmed to Auguste Chouteau under Devol-sey. Chouteau’s title was afterwards acquired by the plaintiffs, who claim the land sued for as an accretion made by the deposits of the river.
    The original concession to Devolsey by St. Ange, acting commandant, dated August 15, 1766, described the land granted as ' ‘ 240 feet in breadth on the side of or towards the (au cote du) Mississippi river, and fronting towards it (ety faisant face,) by 300 feet in depth on the side of or towards the (au coté du) woods, the said front being on a great street, and the rear being on another great street; bounded on one side by another great cross street coming from the Mississippi, which runs by the land of Blondeau and Eurcy, and on the north by another cross street coming from the Mississippi river.”
    The claim of Chouteau under this concession was presented to the old board of commissioners for confirmation, and on the 13th of December, 1811, they issued to him a certificate of confirmation for 240 by 300 feet, and ordered the same to be surveyed, but no survey was ever executed. In 1825, Chou-teau proved up his claim before Recorder Hunt, under the provisions of the act of May 26, 1824, and received a certificate of confirmation, describing the land confirmed as “ bounded on the east by Eront street or the Mississippi, leaving a road between it and the lot.” A survey of this last confirmation was executed in 1835, bounding it east by Main street, south by Cedar street, north by Mulberry street, and west by Second street. There was no call for the river. This survey was not approved until 1850.
    The plaintiffs offered in evidence a survey of a confirmation to Thomas Rogers, which showed that, at that date, the Mississippi river and Main street came to a point at Cedar street, the north boundary of block 42.
    It was admitted that all the land east of block 42 had been formed by accretion since 1840. A portion of the land thus formed was in 1845 surveyed, designated and set apart for the support of schools within the city of St. Louis, under the 2d section of the act of congress of May 26, 1824. The land sued for in this action was between the school survey and the river.
    Upon an agreed case, showing the above facts, the plaintiffs were nonsuited, and appealed to this court.

      C. C. Whittelsey, for appellants.
    1. The plaintiffs had a river front, and are always entitled to such front under and by virtue of the confirmation, as proved before Recorder Hunt, which was for a lot “ bounded on the east by Eront street or the Mississippi, leaving a road between it and the lot.” By the case agreed, all the land east of the line of the block is an accretion made since 1840, so that, at that date, there was no street there except by going over the block, and the call is not for Main street, but Front street, an entirely different street. The main object called for is the river, and the tow or road left was the mere servitude imposed by the Spanish law upon all lands lying on navigable waters. ( O’Fallon v. Price, 4 Mo. Rep. 343. 3 Kent’s Oomm. 427, and notes, (7th ed.) Morgans. Livingston, § Martin (La.) Rep. 19.) 2. The terms of the grant to Devolsey, made in 1766, gave him a riparian right, and that passed to Chouteau, and was confirmed to him. The words “face au fleuve,” “face,” “frente al rio,” “frente,” “front to the river,” exclusively designate estates bounded by the river. (Morgan v. Livingston, 6 Mart. (La.) Rep. 19. 3 Kent, 427. King v. King, 7 Mass. 496. Lunt v. Holland, 14 Mass. 149. 6 Cow. Rep. 544. 5 Wend. 423. 3 Ohio, 495. 5 Harr. & J. 195.) 3. As shore owners, plaintiffs are entitled to the alluvion, which has all formed since 1840. (JYew Orleans v. United States, 10 Peters, 662. 1 Gill & J. 249. 5 Wheaton, 380. 4 Smedes 6 Marsh. 366. Code Civile, 556, 557, 561. 8 Pothier, 179, 157. 1 Mor. & Carlt. Part. 346, 1. 26, tit. 28, p. 3. Morgan v. Reading, 3 Smedes & Marsh. 366. Thomas v. Hatch, 3 Sumner, 170. Shelton v. Maupin, 16 Mo. Rep. 124. 3 Scamm. 510.) 4. The reservation of the road does not prevent the alluvion from passing. (Morgan v. Livingston, 6 Mart. (La.) Rep. 19. Hogan v. Campbell, 8 Porter’s Ala. Rep. 9.) 5. The school survey between the lot sued for and block 42 cannot affect the question, as this land has been made since 1840, and was not a lot or land prior to 1812. 6. Under the Spanish government, St. Louis was not a city and had no city property, (New Orleans v. United States, 10 Peters, 662. Morgan v. Livingston, 6 Mart. Rep. 470,) and the city can claim no title.

      T. T. Gantt, for respondent.
    1. By the title papers of the plaintiffs, it appears that the land confirmed to Chouteau had an eastern terminus different from the Mississippi, to-wit: "the great or principal street” of the town of St. Louis. 2. According to the evidence of the possession of Chouteau, a strip of land, (no matter how narrow,) interposed between it and the river. This would prevent the accrual of any rights as riparian proprietors. 8. Both the original Spanish grant and the United States survey, made in 1835, bounded the confirmation or claim on all sides by streets. The claim of plaintiffs now is to go beyond and to the east of Main street, the eastern boundary of the confirmation and the survey. 4. It is believed that the admission that all the land east of block 42 (including Main street) has been formed since 1840, is broader than the facts will warrant. But it is clear, from the survey made in 1835, that there was a street then east of block 42 ; and if, in the interval, the river cut the street away (even so as to encroach on block 42,) and has since receded, it gives no claim to the plaintiffs as riparian owners. 5. But it is submitted that the recorder had no right to take evidence respecting the extent and boundaries of land confirmed by the old board, and that all such evidence and the survey are altogether without authority and void. (8 U. S. S. at large, p. 750.) 6. If this be so, the confirmation under the old board remains unsurveyed, and can only be designated as bounded on all sides by streets.
   Scott, Judge,

delivered the opinion of the court.

Our duty in the present ease only requires of us an examination of the title of the plaintiffs, who are appellants here seeking to deprive the city of a lot of ground of which she is now possessed. If, under these circumstances, the plaintiffs fail to show a right to recover, it is obvious that the defendant cannot be disturbed and is not bound to show her title.

From the view we take of the law, we are confined to the survey made under the confirmation, through which the plaintiffs claim, in order to ascertain the limits and extent of their rights. In the case of Menard’s heirs v. Massey, 8 How. 303, the Supreme Court says, “ when a survey is made and the field notes returned to the surveyor general’s office, it was conclusive evidence, as against the United States, that the land granted by the confirmation of congress was the same described and bounded by the survey, unless an appeal was taken by either party, or an opposing claimant, to the commissioner of the general land office. This consideration depends on the fact that the claimant and the United States were parties to the selection of the land, for, as they agreed to the survey, they are mutually bound, and respectively estopped by it.”

This being so, and the survey of the confirmation bounding it on the east by Main street, as surveyed by the United States on the 15th of September, 1835, it is not conceived that there can be any serious controversy in relation to this matter. There is no doubt that many concessions of lots in St. Louis were granted under the Spanish government, with boundaries fronting on the river. Auguste Chouteau, in 1825, filed among the archives of the city of St. Louis a plat of the said city, as it was designed by him as its founder. He did not pretend, however, that the plan was made in virtue of any public authority. This plat shows that there was a vacant space left between the river bank and the lots fronting on Main street on the west. In June, 1810, the first board of commissioners for adjusting land titles in Missouri, while acting on a claim of Julian Papin Benito, which was for a lot back to the river from another lot adjoining Main street, says, “it is the opinion of the board that this claim ought not to be confirmed. This space has been termed the bank of the Mississippi. The lots between the Main street and the Mississippi being 150 feet only, as appears by the plat of the town of St. Louis, recorded by Pierre Chouteau and others in behalf of the inhabitants of said town, as also in all the old concessions given for said lots ; and it appears from said plat that a nearly similar space of ground exists between the Mississippi and all the other lots that are situated between the Mississippi and Main street.” As these facts are related merely as a Matter of history, the importance due them, whatever it may be, is not diminished by the consideration that the claim referred to was afterwards confirmed by Recorder Bates.

The case of Mullanphy’s Ex’r v. Daggett & Price, 4 Mo. Rep. 343, does not affect the matter under consideration. That was an action of trespass quare clausum fregit, for injuries done on the Yosti concession, which, though bounded on the east by the river, was situated north of the old Spanish town. At the time of the commission of the wrong for which the suit was brought, it was included within the limits of the city, and the court held that the owner had such an interest in the bank of the river as would sustain the action, though the right of the public to the use of it, for some purposes, was recognized.

The case mainly relied on by the plaintiffs is that of Morgan v. Livingston, 1 Con. Lou. Rep. 451. Whatever may be the law in relation to the rights of riparian owners, under the French, Spanish or common law, we do not conceive that it affects this suit, as the boundary is not the river, but a street in the city of St. Louis. It appears that, by the Spanish law, although a public road was between his land and the river, a riparian owner was entitled to all alluvial accretions, for the reason that, by the law of Spain and the conditions of his grant, he was bound to the confection and the repair of the road, its ditches and bridges, and the levee ; and if any part of the soil, which was covered by them, was carried away by the stream, the riparian estate would yield a quantity of land equal thereto. The bank of the river was to the riparian owner, alternately, an onerous and a beneficial accessory. This principle, it seems, was applicable to private riparian property, laid off into town lots merely by the act of the owner, without any authority of law. But, in towns erected by legal power, the lots were not charged with any of the burdens attending rural riparious estates ; the levee, road or street being made and kept in repair at the joint expense of the owner of every lot in the city.

St. Louis was first incorporated on the 9th of November, 1809, by the Court o£ Common Pleas for St. Louis county, under and by virtue of the act of the territorial legislature of June 18th, 1808, with limits including the block in controversy, and with authority to erect and repair bridges, and to cause the streets to be cleared and repaired by the inhabitants thereof. As the claim of the plaintiffs was not a perfect one under the Spanish government, its confirmation and the ascertainment of its boundaries was a duty assumed by the United States. That duty has been performed, and the plaintiffs have accepted from the government a boundary which limits them to a street in an incorporated town. Now, although their original grant or concession was to be interpreted by the laws of Spain, and although it may have called for the river as a boundary, yet, having accepted as a boundary a street in an incorporated town, they cannot now fall back on the terms of their original concession.

In coming to this conclusion, we do not wish to be understood as intimating the opinion that the plaintiffs’ eastern boundary, from the evidence, was not properly located on Main street. We do not go into an examination of that question. Nor do we wish to be understood as expressing any opinion in relation to the rights of riparious owners of lots in the city of St. Louis, nor as intimating that the town of St. Louis, in regard to riparian proprietors, stood on no other ground than a private grant, bounded by a water-course, under the Spanish government. We are not aware that the Spanish law in relation to riparian grants on the Mississippi, in Louisiana, has ever been considered as obtaining in Missouri.

There is a strong similarity pervading the French, Spanish, and common law codes in relation to alluvial accretions. Bach system may have its peculiarities, but the main features of them nearly resemble each other. It is certain that the United States never made any grant of lands encumbered with the conditions annexed to grants of land on the Mississippi under the Spanish government. In the states of the Union, that government would Have no sucb authority, as it would be a mere police regulation, outside of its constitutional powers.

From what has been said, it will appear that the admission made on the trial that all the land in front of that which is embraced within the lines of block 42, including the present Main street, has been formed by accretion since 1840, cannot affect the judgment.

Judge Ryland concurring, the judgment will be affirmed.


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    Archer, Appellant, vs. McMechan et al., Respondents.
    1. A factor has a lien for a general Balance even upon goods consigned to him for a special purpose, if received in the usual course of business, without notice of the intended application.
    2. The supreme court will look into the evidence to determine the sufficiency of a finding of the facts.

      Appeal from St. Louis Circuit Court.

    This was an action to recover the amount of two drafts accepted and paid by the plaintiff, Archer, at the instance and request of the defendants, McMechan & Co., for the accommodation of William J. Moore.
    The cause was tried by the court without a jury. It appeared in evidence that the plaintiff was a commission merchant in St. Louis, in which capacity he had done business for Moore, who resided at Brunswick. On the 18th of October, there was a balance due plaintiff on account. On that day, the defendants arranged with the plaintiff to accept and pay two drafts, one drawn by Moore and the other by themselves, the proceeds of which were appropriated to the use of Moore. The defendants agreed in writing to provide for the drafts “ by shipments of tobacco or other produce, as soon as it could be shipped.” Moore was not present when this arrangement was made. On the 20th of October, Moore shipped, in his own name, 14 hhds. of tobacco to Archer. Moore testified that he shipped the tobacco, at the request o'f one of the defendants, to meet the drafts, but that no letter of instructions accompanied tbe shipment. It was found by the court that the tobacco was shipped under the agreement between defendants and Archer to meet the drafts, but it was not found whether or not the plaintiff had notice of that fact.
    The plaintiff claimed to apply the proceeds of the tobacco upon the general balance due from Moore to him ; but the Circuit Court held that they must be applied in payment of the drafts, and accordingly gave judgment for the plaintiff only for the excess of the drafts above the proceeds of the tobacco.

      C. C. Whittelsey, for appellant.
    As it does not appear that Moore notified plaintiff that the tobacco was shipped upon account of the drafts, plaintiff had the right to carry the proceeds to his account with Moore and to make the application; and defendants must take the burthen of Moore’s acts if they claim the benefit. As to application of payments, see 1 Hare & W. L. C. 123. Mayer v. Patten, 4 Cranch, 317. Field v. Holland, 6 Cranch, 8. Brady v. Hill, 1 Mo. Rep. 315. Hammer’s Administrator v. Rochester, 2 J. J. Marsh. 144. Stamford Bank v. Benedict, 15 Conn. 438, 443, 445. As to factor’s lien, see Story’s Ag. § 408, 409. 5 Barn. & Aid. 27. George v. Claggett, 7 T. R. 359.

      J. A. Kasson, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The only litigated matter in this cause was, whether the plaintiff had a factor’s lien for the general balance of his account, as Moore’s factor, upon the tobacco shipped by Moore to meet the plaintiff’s acceptances ; and this rests, as a matter of law, exclusively upon the question, whether he received it in the ordinary course of his business as Moore’s factor, or had notice of the purpose to which it was to be applied under the arrangement between Moore and the defendants.

Upon a trial by the court, it was proved that Moore shipped the tobacco to the plaintiff to meet these acceptances, under an arrangement with the defendant, who had made the contract with the plaintiff for Moore’s benefit. But it is not ascertained by the finding, whether it was received by the plaintiff in the usual course of his business, as Moore’s factor, or whether with or without notice of the manner or purpose of its shipment.

A_factor’s lien_,attaches the moment the goods reach his hands, and continues only while he retains possession of them. It covers any general balance due him on his account as fac-J:or7but does not attach (at least for a balance) .upnn-gnnds. belonging to others shipped to him by his own correspondent, nor upon his principal’s own goods sent for a special purpose, of which the factor has notice; nor upon goods, the possession of which he has improperly acquired. (Paley on Agency, by Dunlop, 129,132, 142, and cases referred to.) And it may also be remarked that a factor’s lien attaches itself to the legal ownership in such manner as to cut off all claims upon the property, not amounting to such ownership, of which the factor has no notice.

What items may properly go into a factor’s account with his principal, as debits and credits, so as to fix the balance for which he is entitled to a lien, or under what circumstances, the goods may be said to have come into the factor’s possession in the ordinary course of business, are not questions now before us for consideration, although they may come up on another trial.

From our view of the law of the case, it will be seen that the judgment must be reversed, and the cause retried, in order to settle the matters of fact that we have suggested, as material in the determination of the rights of the parties. They do not sufficiently appear upon the present finding, and this omission cannot be remedied in any other way.

We may remark that the answer is very general — merely that tobacco was shipped according to the stipulation — referring to the real matter in controversy in the brief averment that the plaintiff claimed and appropriated its proceeds to a general balance due him from Moore; but the bill of exceptions contains the evidence, and shows what was the real question in issue, and we must of necessity frequently have recourse to the evidence given upon the trial, in order to determine the sufficiency of the finding upon the merits of the controversy. We do so in this case, but with no view to pass upon the sufficiency of the evidence to warrant the actual finding, nor upon its sufficiency in reference to the particular facts that we deem material in determining the cause, and, in doing this, the insufficiency of the finding in the particular suggested is very manifest.

The judgment is accordingly, with the concurrence of the other judges, reversed, and the cause remanded.


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    The Farmers’ and Merchants’ Bank of Memphis, Plaintiff in Error, vs. Lonergan’s Adm’x, Defendant in Error.
    1. It is error to admit evidence of the contents of hooks in the possession of the adverse party, no notice having been given to produce them.
    2. It is competent for one partner to waive the necessity of demand and notice upon a bill drawn in the course of the partnership business, without special authority for that purpose.

      Error to St. Louis Circuit Court.

    This was a demand presented for allowance in the Probate Court, against the estate of Kennedy Lonergan, founded upon a bill of exchange dated April 22, 1847, drawn by said Loner-gan upon William O. Lofland, and accepted by him, payable to the order of William Clark, and -claimed to have been endorsed to the plaintiff. On the back of the bill was the signature, “ William Clark,” over which were written the words, “ I hereby waive demand and notice, 15th July, 1847,” which latter words were testified by a witness for the defendant to have been erased after the date of the presentation of the bill for allowance in the Probate Court. There was also endorsed upon the bill the words, “We waive demand and notice. July 15th, 1847. Lonergan & Clark.” All these endorsements were in the bandwriting of William Clark.
    The defences relied upon at the trial in the Circuit Court, on appeal, were 1st, that the plaintiff had no title to the bill which would enable him to sue, and, 2d, that it never was presented to the acceptor for payment.
    Upon the first point, the only evidence offered by the plaintiff, in addition to the endorsement on the back of the bill, was contained in the depositions of Wm. 0. Lolland and Richards, the present book-keeper or the bank, who testified that they knew nothing of the purchase of the bill, except that it was entered on the books of the bank on the day of its date, as a bill taken in the regular course of its business. This evidence was* objected to by the defendant and excluded, to which the plaintiff excepted. The defendant afterwards read the deposition off Richards, taken in his behalf, in which he testified that it appeared from the books of the bank that the bill was withdrawn' on the 10th of November, 1847, by a party who substituted other paper therefor, and that it was afterwards returned and' again entered upon the books. This portion of the deposition was objected to by the plaintiff, but permitted to be read, to-which an exception was taken. There was a rule of the Circuit Court, requiring all exceptions to depositions, exclusive' of those on account of competency and relevancy, to be filed in> writing before the trial.
    The evidence bearing upon the second ground- of defence was' as follows : Lofland testified that Lonergan had no funds in his-hands at the date of the bill, nor at any time afterwards, and’ had no right to expect him to take it up ; that he accepted the-bill because he had confidence in the parties and believed'it would* be paid ; that no provision was ever made for the payment, and that it never was presented to him for payment. Other witnesses testified that at the date of the drawing of the bill and of the waiver of demand and notice endorsed upon the back, Lonergan and Clark were partners in a contract to grade and gravel the streets of Memphis ; that they needed large amounts of money to fulfil the contract; and that Clark attended to the financial affairs of the partnership ; but there was no other evidence that this bill was drawn for partnership purposes.
    The first instruction asked by the plaintiff.and refused was as follows :
    1. If the jury believe from the evidence that William Clark, an endorser on said bill, by the consent and direction of Loner - gan, the drawer, waived the necessity of a presentation of said bill for payment at maturity both for himself and Lonergan, then they ought to find for the plaintiff, if they further believe from the evidence that the bill still remains unpaid.
    The first instruction asked by the defendant and given, was as follows :
    1. Unless William Clark assigned the bill of exchange given in evidence by the plaintiff, his (Clark’s) title to the said bill has not passed from him, and without acquiring that title, the plaintiff cannot maintain this suit.
    Other instructions were given to which no exception was taken. There was a verdict for the defendant.

      A. Buchner (with Delafield,) for plaintiff in error.
    I. The court erred in permitting the defendant to prove entries in the plaintiff’s books, 1st, because no notice had been given to produce the books themselves, (Phill. on Ev. p. B38. 1 Johns. Rep. 848,) and 2d, because it was not shown by whom the entries were made. (Cow. & Hill’s notes, p. 1159 & 60 and .authorities cited.) II. The first instruction given for the defendant was erroneous. A blank endorsement of a bill of exchange conveys a right of action to the holder. (Chitty on .Bills, 133, 134, 255 to 287. Bailey on Bills, 123, 124. 3 .Kent’s Comm. 89, 90. Smith’s Mercantile Law, 218.)

      T. Polk, (with A. P. & P. B. Garesché,) for defendant in error.
    I. The evidence offered by the plaintiff to prove the contents of his own books was properly excluded. They were in his possession and no excuse was offered for the failure to ¡produce them. II. The evidence offered by defendant to prove entries in the plaintiff’s books was properly admitted. 1st. It was in tbe plaintiff’s power to have produced bis books. 2d. No objection to the proof of their contents had been made when the deposition was taken, but, on the contrary, the witness was cross-examined on this very subject. 8d. If there was error in admitting the evidence, it did the plaintiff no harm. It had reference to the payment of the bill, and the whole record shows that the defendant did not claim that it had been paid. III. The first instruction asked by plaintiff was properly refused, because there was not a particle of evidence that Lonergan, the drawer of the bill, ever gave consent or direction to Clark to waive demand and notice. IV. The first instruction given for the defendant merely asserts that, unless Clark had assigned the bill, his title thereto had not passed out of him, and that without acquiring that title, the plaintiff could not maintain this suit; and this proposition is maintained to be true beyond all refutation.
   Scott, Judge,

delivered the opinion of the court.

It is evident that this cause was tried in such a way that the judgment cannot be sustained. The plaintiff is a foreign corporation. She attempted to sustain her action by depositions proving the contents of her books. The portion of the depositions containing such testimony, was objected to by the defendant, and it was properly excluded by the court, as the books were not produced, and their absence not accounted for.

The defendant in turn offered depositions, tending to make out a defence, proving a portion of the contents of the same books, without any notice to produce them ; this testimony was objected to by the plaintiff, but her objection was overruled and the deposition allowed to be read.

The conduct of the defendant in taking depositions to prove the contents of the books and failing to give notice to produce them, was well calculated to mislead and deceive the plaintiff. As the plaintiff’s depositions proved the contents of the books, and the defendant’s did the same thing, and there was no notice to produce them, the plaintiff might well have supposed that the cause would be tried on this evidence; and to reject all her testimony, showing the contents of the books, and admit that of the defendant, was violating all the principles of reciprocal justice. The rule which permits the contents of a paper beyond the jurisdiction of the court, to be proved by parol, has nothing to do with this matter.

It is said that by the rule of the court concerning depositions, the exception to the depositions could not be taken at the trial. If the rule excluded the objections of the plaintiff to the defendant’s depositions, why did not the same rule exclude the like objections to the plaintiff’s depositions ?

The first instruction asked by the plaintiff was properly refused, because it in effect told the jury that the only questions in the cause were, the waiver of the necessity of presentment, and that the bill remained unpaid. This was a suit by an en-dorsee of a bill of exchange against the administratrix of the drawer. There were no pleadings in the cause. Under such a state of things, every material fact necessary to maintain the action was in issue. It was, therefore, improper to tell the jury, if there was a waiver of demand and notice and the bill was unpaid, that the plaintiff was entitled to a verdict. If the bill was drawn in the course of the partnership business, it was competent for one partner to waive the necessity of a presentment, without any special authority for that purpose.

The first instruction given for the defendant was not in as clear language as it should have been. The word " assigned,” when used in reference to the endorsement of a bill of exchange, and as a substitute for the word “ endorsed,” is equivocal, and may mislead. The instruction should have been put in language that would have clearly raised the point intended to be made by it. If Clark had not, by an endorsement in blank or in full, transferred his interest in the bill, it is clear that the plaintiff could not maintain an action upon it. The words written over the blank endorsement of Clark, if it was such, might have been explained, and it might have been shown that they were placed there by mistake, or through inadvertence, and it is a little singular that there was not more evidence in relation to this matter, on the part o£ the plaintiff, than appears in the bill of exceptions.

It does not appear that there is any controversy as to the law of the other instructions. With the concurrence of the other judges, the judgment will be reversed, and the cause remanded for a new trial to be had therein.


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    The State, to the use of Smith, Respondent, vs. Paul’s Executor, Appellant.
    1. A county or probate court has jurisdiction of a demand against the estate of a decedent, founded upon a .bond with a collateral condition.
    2. The security in a curator’s bond in force at the date of his final settlement, is prima facie liable for the amount thereby shown to be in his hands, although received before the bond was given. To render the security in a former bond liable, it must be shown that the money was converted during the period covered by that bond.

      Appeal from St. Louis Circuit Court.

    This was a demand presented in the St. Louis Probate Court for allowance against the estate of Rene Paul, deceased, founded upon alleged breaches of a bond for $4000, executed to the state of Missouri, by said Paul as security, on the 16th of March, 1844, conditioned for the faithful discharge by Frederick W. Beckwith of his duties as curator of Philomena Smith, a minor. This action was brought to the use of Philo-omena Smith, by Henry Chouteau, her guardian. The breaches assigned were: 1st. That between the 16th of March, 1844, and September, 1851, the sum of $8000 came into Beckwith’s hands as such curator, which he failed to account for, or pay over, as required by law, and as demanded by Chouteau, her guardian. 2d. That said Beckwith kept no separate account of the money received by him as curator, but mixed the same with his own, and converted it to his own use. Bd. That be failed to put sucb money out at interest upon mortgage or other sufficient security, as by law be should have done. 4th. That he did not mate annual settlements of his accounts as such curator. 5th. That in March, 1851, he converted to his own use certain bonds of the city of St. Louis which came to his hands as such curator. 6th. That at his settlement in June, 1850, there was a balance in his hands of $5049 51, which he converted to his own use. 7th. That in September, 1851, he sold and converted to his own use certain bonds of the city of St. Louis which came to his hands as curator. 8th. That he did not put out at interest the balance which was in his hands at his settlement in June, 1850. 9th. That on the 28th of June, 1851, he was ordered to pay over to Henry Chouteau, as guardian of the person of Philomena Smith, the sum of $500, which he failed to pay.
    A motion to dismiss for want of jurisdiction was made in the Probate Court and renewed in the Circuit Court, but in both instances overruled.
    At the trial in the Circuit Court, the plaintiff offered in evidence the record of the appointment of Beckwith, as curator of Philomena Smith, on the 8th of March, 1843, and the bond sued upon. He then offered the record of the annual settlements of Beckwith, as curator, from 1844 to 1850 inclusive. This last was objected to, because it was not a complete record, and did not contain all the settlements made by said Beckwith, as such curator. The objection was overruled, and the record permitted to be read in evidence. Each of these settlements showed a balance in the hands of the curator, and the settlement of 1850 showed a balance in his hands of $5049 52. It was admitted that Beckwith made no settlement in 1851. The plaintiff also read in evidence a record of the appointment of Henry Chouteau as guardian of the person and estate of Phil-omena Smith on the 12th of April, 1852; also the order of the Probate Court at the June term, 1851, requiring the curator to pay $500 to Chouteau, as guardian of the person of Philo-mena Smith. It was proved that a copy of this order was served on Beckwith, the curator, on the 12th o£ September, 1851, and a demand made for the money.
    The defendant, on his part, offered in evidence a record of the final settlement of Beckwith, as curator, in June, 1862, showing a balance in his hands of $6561 84, and an order by the Probate Court to pay the same to Henry Chouteau, guardian ; also a bond executed by Beckwith, as principal, and Louis C. Smith, as security, dated September 19th, 1851, conditioned for the faithful discharge by Beckwith of his duties as curator. It was admitted that Rene Paul died in May, 1851.
    The court gave the following instruction asked by the plaintiff, to which the defendant excepted :
    “ If the jury find that Beckwith, in June, 1850, was indebted to his ward, Philomena Smith, in the sum of $5049 61; that said Beckwith failed to make a settlement in the Probate Courtj at the June term, 1851, and failed to pay the $500 ordered by the Probate Court at the June term, 1851, after the same was demanded, and that Paul was his security at that time, the jury ought to find for the plaintiff the amount of such indebtedness, not exceeding $4000, unless the defendant has shown to the satisfaction of the jury that Beckwith, at the date of the bond executed in 1851, had still in his hands the amount of funds belonging to his ward ; and the final settlement made in June, 1852, read in evidence, is insufficient for that purpose.”
    There was a verdict for the plaintiff for $4000.

      Cline & Jamison, for appellant.
    1. The Probate ^ Court has only jurisdiction of an action on a curator’s bond where the court has ordered the curator to pay, and in such case, the proceeding must be by scire facias. (Sess. Acts of 1850-51, p. 211, § 11. R. C. 1845, tit. Administration, art. 5, § 11, 12, 13 and 14.) The Probate Court cannot render a judgment on a penal bond, for, in such case, the judgment is for the amount of the penalty, with leave to take out execution for the amount of damages sustained. 2. The court below erred in admitting in evidence the certified copy of the accounts and settlements of E. W. Beckwith, as curator, because it did not contain all tbe accounts and settlements made by bim, and was not a full and complete transcript of the record. 3. The instruction given was erroneous. It required the defendant to prove that the curator did not convert to his own use the balance in his hands at his settlement in June, 1850, whereas it was incumbent on the plaintiff to prove that he did convert it. (17 Mo. Rep. 431.) The final settlement of the curator, made at the June term, 1852, showed a balance against him of $5561 84, (in which was included the balance on hand at the June term, 1850.) The curator was only bound to pay the money in his hands belonging to his ward, when ordered by the Probate Court, and, until then, there was no breach of the bond; and there was no order to pay until the final settlement at the June term, 1852, at which time Louis C. Smith was the security in the bond and liable for the balance. (11 Mo. Rep. 583.) The new bond operated as a discharge of the security in the old one, and of his estate from all liability for the subsequent delinquencies of the curator. (R. C. 1845, tit. Securities, § 17.)

      Glover & Richardson and S. Reber, for respondent.
    1. If there was a breach of the bond in which Paul was security, the relator had a “ demand” against his estate which could be presented for allowance in the Probate Court. (R. C. 1845, tit. Administration, art. 4, secs. 4 and 8. 10 Mo. Rep. 234.) 2. The instruction given was correct. The controlling idea in it is, that if Beckwith was indebted to his ward, as shown by his settlement, made in June, 1850, and failed and refused to pay her the said $500 which he was ordered by the court in June, 1851, to pay, the presumption was, that he did not pay because he did not have the money of his ward on hand, and the onus thereby was put on the defendant, to show that he did have her funds on hand at the date of the last bond. This view is sustained by the ease of JYolley v. Callaway County, 11 Mo. Rep. 447. 3 Strobhart, 327. If he did not have $500 on hand, it is simply absurd to suppose that he had the amount shown by his settlement in June, 1850. The presumption thus raised, was not rebutted by the settlement of June, 1852, showing a balance against Mm of $5561. The settlement furnishes no evidence that he then had that amount on hand, but merely that he owed that amount. Even if it amounted to a declaration by Beckwith that he then had that amount in his hands, this would be no evidence in favor of him or his security.
   Scott, Judge,

delivered the opinion of the court.

The words of the statute conferring jurisdiction on the county courts, are sufficiently comprehensive to embrace the subject of this suit. The words are, “that the county court shall have jurisdiction to hear and determine all demands against any estate,” &c. More comprehensive language could scarcely have been employed. The objection to an action in the county court on a bond with a collateral condition, growing out of the nature of the judgment required by law to be entered in such suits, is more specious than solid. In actions conducted according to the course of the common law, a judgment for the penalty was the logical result from a finding of the issue on a breach for the plaintiff. But as all formal pleadings are disregarded in legal proceedings in the county court, no order is disturbed, nor inconvenience produced, in regarding the dama7 ges assessed as the sum for which judgment should be rendered. In the case of Jewett v. Weaver's Adm'r, 10 Mo. Rep. 234, this court held that an action on a bond, with collateral condition, might be maintained in the county court.

We do not see that the defendant has been prejudiced by the records of the Probate Court used in evidence. If there was any thing in other records paralyzing the effect of those read, the defendant has the benefit of them. It was not necessary, in order to make the settlements evidence, that a record of the whole administration should have been produced. The plaintiff could obtain no advantage by introducing only a portion of the record of the settlements. The whole, when produced, though by the opposite party, would have the same effect as if introduced at once.

There is nothing in the act of March 3d, 1851, concerning “Probate Courts, executors, administrators, guardians and curators,” (R. C. 1845, p. 209,) which effects this proceeding. The remedy therein given is merely cumulative, and does not take away the action on the bond.

The plaintiff has brought her action without any reliance upon the final settlement. Indeed, that settlement was made under another bond than that on which this suit is instituted, and under which Rene Paul was not liable. The record shows that the default for which this action is brought, did not occur whilst Rene Paul was surety. Nothing more appearing, that is,the legal effect of it. Prom the face of the papers, the surety in the last bond is chargeable with the money sought to be recovered in this suit. Now, as the plaintiff has waived her action on the last bond, and the settlement under it, there is no hardship in imposing on her the burden of the proof that would have exculpated the surety in that bond. She must show that her money was wasted by her curator, whilst Paul was the security. As the law will not presume a default or wrong in the curator, nothing more appearing, the presumption is, that the money was in his hands at the time the last bond was entered into, and, consequently, that Paul, the surety in the first bond, was discharged. In the case of Farrar & Brown v. United States, (5 Pet.) the sureties of the surveyor general executed a bond, in the penalty of $30,000, conditioned for the faithful discharge of the duties of that officer. Before the execution of the bond, a large sum of money had been placed in the hands of the surveyor. In an action on the bond, the Supreme Court of the United States held that the sureties might show that the money was spent by the surveyor before the bond was executed. So here, the surety in the last bond, nothing more appearing, would be liable for the balance found in the hands of the curator at the last settlement. But the plaintiff, waiving the benefit of this presumption against the last surety, as sbe bad a right to do, has assumed that there was no money in the hands of her curator at the time of the last bond and settlement. Then she must make good her assumption, and show that her curator spent her money whilst Paul was her surety. This is the legal effect of the record as presented, and its force can not be broken by reading only parts of it.

The neglect of Beckwith, the curator, to make a settlement in 1851, was evidence in the cause, as it showed a breach of the condition of the bond, which breach was a part of the cause of action. So was the failure to pay the $500, and for the same reason. But these circumstances, whilst they might have been considered by the jury in determining whether the money was spent during the time that Paul was surety, were not of themselves sufficient to establish that fact. And on no principle could their establishment by proof throw on the defendant the burden of showing that the money was not made way with while his testator, Paul, was the surety.

The instruction given for the plaintiff was erroneous, and the judgment will be reversed, and the cause remanded, with the concurrence of the other judges.


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    McDowell, Plaintiff in Error, vs. Brown et al., Defendants in Error.
    1. A clause in restraint of alienation, in a deed containing apt words to pass an estate in fee, will be rejected, and the deed held to pass an absolute estate in fee to the grantee, and not merely a life estate, remainder to his heirs.

      Error to St. Louis Court of Common Pleas.

    This was an action for the possession of a lot of ground fronting thirty feet on Third street, in block 84 of the city of St. Louis. The titles of the respective parties are sufficiently stated in the opinion of the court.

      W. L. Williams, for plaintiff in error.
    The deed of Catha-rine Laviolette only conveyed a life estate. The construction ought to be made on the entire deed, and every part of a deed cught, if possible, to take effect, apd every word operate, and the intention of the grantor should prevail, if possible. Subsequent words shall not defeat precedent ones, if by construction they may stand together. (4 Greenleaf’s Cruise, ch. 20, § 6, and note c. at bottom, § 8, and notes 2 and 8 at bottom. 2 Smith’s Lead. Cases, 42, top p. 318.)

      T. T. Gantt, for defendant in error.
    1. The deed from Catharine Laviolette to her daughter, passed an estate in fee. 2. The condition annexed to the deed, depriving the grantee of the power of alienation, was repugnant and void. (Coke on Littleton, (quarto,) § 360, p. 228. Shepherd’s Touchstone, p. 112, 113. 2 Cruise, p. 5, tit. 13, ch. 1, § 22. 8 D. & E. p. 61.)
   Leonard, Judge,

delivered the opinion of the court.

Both parties claimed the lot under the same original proprietor, Catharine Laviolette, who, on the 25th of May, 1816, conveyed it to her own daughter, Julia Tongas dit Laviolette, by a deed to this effect: “For and in consideration of the attachment, love and affection, and in proof thereof, for Julia Tongas dit Laviolette, my daughter, as well as for the good cares and attentions of my sa'id daughter towards me, I have this day given, granted, released and conveyed, and by these presents, I do sell, grant, release and convey unto my said daughter, and her heirs, from henceforth and forever, and promise to guarantee against all debts or mortgages, on my part, a certain piece of ground or town lot, situate in the town of St. Louis, on Third street, bounded, &c. ; willing and desiring that my said daughter and her heirs may enjoy the same henceforth and forever, as a thing to them belonging, without, however, disposing of it under any pretext whatever, to the effect that, at the death of my said daughter, the said property revert to the children of my said daughter, as well living as to be born.”

The parties to the deed, mother and daughter, are both dead — the daughter leaving children surviving. The defendants are in possession under a deed from the daughter, made in 1818, and the plaintiff claims under a deed from her children, and the question is, whether the daughter, the original grantee, took an estate in fee under the deed. The grant being in express terms to the daughter and her heirs, undoubtedly vests the fee in her, unless it is deprived of that effect by the words, " willing and desiring,” &c. Of course, it is our duty to look at the whole deed, in order to get at the intention of the parties; and that intention being once ascertained, we are bound to carry it into effect, if it can be done consistently with the rules of law. upon the subject. The intention of this grantor may have been and probably was, to vest the whole property, the absolute dominion over the lot, in her daughter, with all the rights and incidents of an ownership in fee- simple, stripped only of such power of alienation, on the part of the daughter, as would prevent its descent, at her own death, upon her own children — the grantor’s grand children. Such an intention, however, is inconsistent with the rules of law, and for that reason cannot prevail, no matter how obvious it may be. The law has prescribed what estates can exist in land, and annexed certain incidents to them, and directed their course of devolution upon the death of the owner, and does not leave it to the caprice of individuals to change these essential incidents, or to create other estates with a different course of descent, and the power of alienation is one of the incidents of a tenancy in fee simple, which cannot be controlled by the provision of parties.

A little reflection, too, will satisfy us that the construction of the deed which vests the fee in the daughter, executes the intention of the grantor, nearer than any other interpretation we could give to it. If we were to hold that the estate given to the daughter was for her life only, the remainder to her children could not be for any estate of inheritance for want of words of perpetuity, and so the effect of this construction would be to make the deed operate as a conveyance to the daughter for life only, with a remainder for life to her children, and with the reversion in fee to herself, which would be manifestly further from her intention than the other construction.

In this case, and, indeed, in all cases where the party creates a legal estate in land by apt words, and then puts into the deed a provision, the effect of which is to deprive the grantee of any of the essential incidents that the law annexes to the estate granted, either the whole deed must fail of effect as a conveyance, or the limitation attempted to be put upon the estate granted, must be rejected as repugnant to it. The latter course is pursued by our law, and a nearer approximation to the intention of parties is thereby reached than would be obtained by rejecting the whole instrument. The clauses imposing the restraint are rejected as repugnant, and the deed takes effect accordingly.

This has been so long settled that we dare not now disturb it, and we must accordingly hold that the restraint upon the power of alienation here attempted, is repugnant, and must be rejected. (Coke on Littleton, (quarto,) sec. 360, p. 223. Shepherd’s Touchstone, p. 112, 1 13. 2 Cruise, p. 5, tit. 13, chap. 1, sec. 22. Doe v. Carter, 8 Durn. & East, 61.) The judgment, with the concurrence of the other judges, is affirmed.


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    Boyle, Appellant, vs. Hardy, Respondent.

    1. Bill in chancery for the settlement of a partnership account extending through two partnerships. Decree reversed, because after an interlocutory decree finding a settlement of the first partnership, the bill was dismissed without any apparent cause, when the second partnership remained to be adjusted.

      «Appeal from St. Louis Circuit Court.

    The opinion of the court contains a statement of the case.

      R. M. Field and N. Holmes, for appellant.

      F. M. Haight, for respondent.

       This case was decided at the March term, 1853.

   This was a bill in chancery, filed in the year 1847, by Boyle against Hardy for the purpose of settling the concerns of a partnership between them. Boyle, Hardy and Geo. W. West were partners in the business of merchant tailors, which was carried on in Philadelphia and St. Louis. West sold out his interest in the concern to Boyle & Hardy, who afterwards carried it on until some time in the year 1847, when the partnership was dissolved. The bill was filed by Boyle to have an adjustment of the accounts of both firms, and for a division of the real estate purchased by the partners with the partnership funds. Hardy, in his answer, sets up the defence that, prior to the purchase by Boyle and himself of West’s interest in the first concern, its accounts were adjusted, and a settlement made among all the parties interested, which settlement was the basis of the subsequent partnership between him and Boyle. He expresses his willingness to settle the accounts of the partnership between him and Boyle, and to make such division of the real estate as had been previously agreed upon between the parties. On the pleadings and exhibits in the cause, the court made an interlocutory decree that the parties account. This account was to be had of the concerns of both partnerships, the court at the time of decreeing the account, reserving the question whether there had been a settlement of the first partnership. A commissioner was appointed, who took an account of the two partnerships, and also proof in regard to the question of a previous settlement of the concerns of the first partnership. The taking this account occasioned the enormous expense of some two thousand dollars. On the coming in of the report, the court decreed that there had been a settlement of the first partnership, as alleged by the defendant in his answer, and further decreed that the complainant have leave to amend his bill. The complainant not having amended his bill, in pursuance to this decree, in such manner as to satisfy the court, his bill was dismissed'for the want of prosecution,' for which some reason was entered on the record, which is utterly incomprehensible.

The court had no authority to decree that the complainant amend his bill. That was complainant’s look out. Take it there was a settlement of the first partnership, the concerns of the last were still to be adjusted, and the cause should have progressed as to them.

Parties should bear in mind that, under our' chancery system, which rules this cause, the report of a commissioner and the evidence in a suit, in order to be reviewed in this court, must be preserved in a bill of exceptions.

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


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    Boyle, Plaintiff in Error, vs. Hardy, Defendant in Error.
    J. The answer to a hill for a general account of two partnerships set up an account stated and settled as to the first partnership, to which there was a general replication. Upon a hearing, there was an interlocutory decree finding a settlement as stated in the answ'er. The case was reversed because the complainant was not afterwards allowed to amend his bill, so as to surcharge and falsify the settlement.

      Error to St. Louis Court of Common Pleas.

    This was a bill in chancery filed in the St. Louis Circuit Court in 1847, to settle a partnership account extending through two partnerships. The answer alleged an account stated and settled of the affairs of the first partnership. The complainant filed a general replication. On the hearing in December, 1848, no evidence was adduced of a settlement; and the matter was referred to a commissioner to take and state an account of the whole business, without prejudice to the right of the defendant to produce evidence of a settlement before the commissioner, with a reservation of the question of settlement or the conclusiveness thereof, if proven, for the decision of the court. The commissioner took evidence in reference to the settlement, and returned the same, together with his report, in February, 1851. On the 17th of May, 1851, the cause was heard, by consent of parties, upon the question reserved in the interlocutory decree of December, 1848, and the court found and decreed that there had been a settlement of the first partnership, and at the same time, general leave was granted to the-complainant to amend his bill during the term. The complainant filed his motion to set aside the interlocutory decree last named. The motion was overruled at the following term, and leave again granted to file an amended bill, without specification as to time. On the 5th of January, 1852, at the same term, an amended bill was filed, which contained the same allegations as the original, but attempted to avoid the effect of the settlement by the allegation of fraud, and also to surcharge and falsify. The defendant filed a motion to set aside this amended, bill, alleging as reasons that it contained no equity, that it sought to draw in issue matters already decided by the court, and that it was not filed in time. The motion was sustained, and leave again* granted to the complainant to amend within twenty days. The-complainant filed his bill of exceptions to this action of the-court. Within the time given, a second amended bill was filed,, substantially the same as the first, but differing in form. This-also was stricken out on motion, and the complainant declining, to take leave again to amend, the bill was dismissed as forwent of prosecution. The case was then brought to this court by appeal and reversed. (Ante, 60.) After it was remanded,., a change of venue was taken to the St. Louis Court of Com>-mon Pleas, and at the February term thereof, 1854, the com.-plainant moved the court to rescind the order of the Circuit-Court striking out the first amended bill, and to reinstate-the-same, and proceed therewith, according to equity. The motion was overruled, and an exception taken. The complainant-, then moved for permission, under the leave to amend theretofore granted, to amend in some form his bill of complaint so* as to draw in question the validity of the settlement on the-ground of fraud, and also to surcharge and falsify the ac-count as settled according to the answer. This motion was refused and an exception taken.
    The complainant then moved the court to refer back the account stated to a commissioner, with directions to examine the same as to errors and omissions, with leave to the complainant to surcharge and falsify the same on the basis of the settlement as found by the court; and this motion was overruled, and an exception taken.
    And thereupon, the complainant admitting that there was no balance due him on account of the last partnership, the court dismissed the bill. A motion was made to set aside the decree and grant a new hearing. The motion was overruled, a bill of exceptions filed, and the case brought to this court by writ of error.

      R. M. Field and N. Holmes, for plaintiff in error,
    insisted that the amendment of the bill should have been allowed, or at least that the matter should have been referred back to the commissioner, with directions to restate the account, and with leave to the complainant to surcharge and falsify, upon the basis of the settlement, as found by the court. (Boyle v. Hardy, ante, 60. 2 Atk. 119. 4 Bridg. Eq. Dig. 76, PI. 65. Hurd v. Everett, 1 Paige, 124. 1 Dan. Ch. Pr. 509, .518. 1 Story’s Eq. § 223. Story’s Eq. PI. 801. 2 Dan. Ch. P. 189, 190. Thring v. Edgar, 2 Sim. & Stu. 274. 2 Nes. 565. 1 Dan. Ch. Pr. 461, 481, 484, 513. 2 Dan. Oh. Pr. 396. 1 Atk. 1 & n. 2. 1 Paige, 555. 1 Dan. Ch. Pr. 520, 544-5. Sto. Eq. PL § 887. Welf. Eq. PI. 166, 173. 1,75. ' 2 Dan. Ch. Pr. 891. Story’s Eq. PI. § 678.)

      H. S. Geyer, for defendant in error.
    The decree of May 17, 1851, concludes the complainant as to all matters relating to the first copartnership, and the leave given to him to amend did not authorize an amendment which would put in issue the facts which had been decided by the court on that day. The amendment could only be in such matters as related to the accounts and business of the second partnership. The motion to refer the accounts of the first partnership to a commissioner, in order to ascertain whether there were any errors or omissions in the settlement, with leave to surcharge and falsify, is not supported by any allegation, and much less evidence, that there was fraud, error or omission in the settlement, found by the court to be full and final, as alleged in the answer; and for this reason, as well as that it proposed in effect to set aside or disregard the decree rendered on a full hearing, it could not be granted.
   Scott, Judge,

delivered the opinion of the court.

This seems to be an unfortunate case. But on looking through the record, one cannot help coming to the conclusion that the complainant has paid enough for an account in this matter, in order to be entitled to one of some sort.

The obstinacy with which the complainant’s counsel insisted on their mode of amending their bill, finds some extenuation in the manner in which they had been treated in relation to the taking of an account. When this cause was formerly here, there was no bill of exceptions, and the court was narrowed to the record proper for a reason to reverse the decree, and it was remanded with the hope that it would have been tried on its merits. But this has not been done, and the cause is here a second time in much the same condition in which it formerly was. As this case is somewhat anomalous from the manner in which it has been conducted, we do not hesitate to reverse the decree dismissing the bill, in order that there may be an opportunity for a trial on its merits. Under the circumstances, we are of opinion that this is a proper case for the exercise of the discretion in permitting a complainant to amend his bill. The decree will be reversed and the cause remanded, with directions to refer back the account stated to a commissioner, with instructions to examine the same as to errors and omissions, and with leave to the complainant to surcharge and falsify the same on the basis of the settlement as found by the court. The other judges concur.