text:
    The State, on the Relation of Martin et al., Respondents, v. Thompson, et al., Appellants.
    1. The old Bank of Missouri, haying accepted the provisions of the act regulating banks and banking institutions, &c. (see Sess. Acts, 1857, p. 14) established, as required by the 12th section of the 10th article of said act, a branch hank at Palmyra, in Marion, county, and furnished to it a capital of_" $62,600. The parent bank appointed all the directors, nine in number, there being no private subscription of stock at the time. Afterwards, books of subscription were opened at Palmyra, and $62,500 in stock were subscribed ; some of these shares were forfeited and only $33,660 were paid in on the stock subscribed. The parent bank, claiming under these circumstances the right to appoint six out of the nine directors, ordered an election for the three remaining directors on the 1st of March, 1868. The directors of the branch bank also resolved that an election should be held for three directors on said day, and notice was given to that effect. An election was accordingly held and a large majority of the stockholders voted for five directors instead of three; a small minority voted for three persons as directors. The latter were declared duly elected. Held, 1st, that under such circumstances the parent bank was authorized, by the 15th section of the 10th chapter of said act above referred to, to appoint six of the directors, and that the private stockholders were entitled to appoint no more than three; that the furnishing of capital, within the meaning of said section, is not the subscribing of stock merely, but the payment of the same; 2d, that the election being legally an election for three directors only, the votes given for five directors were illegal and were properly disregarded, and the three directors voted for were properly declared elected.

      Appeal from Marion Circuit Court.

      Dryden and Lipscomb, for appellants.
    Anderson, for respondents.
   Scott, Judge,

delivered the opinion of tbe court.

The old Bank of Missouri, having accepted the terms proposed by the act to regulate banks and banking institutions and to create the office of bank commissioners, stood incorporated under the provisions of that act. The 12th section of the 10th chapter of this law required the mother bank to establish seven branches — one at Palmyra, in Marion county, with a capital of not more than $125,000. (Chap. 10.) In pursuance to this provision the mother bank established a branch'at Palmyra and furnished it with $62,500. There being no private subscription of stock at this time, the mother bank, under the 15th section of chapter 10 of the act, appointed all the directors, numbering nine. After-wards during the year 1857 — that in which the branch was located at Palmyra — books of subscription were opened at that place, and $62,500 were subscribed by individuals in stock. Some of these shares wore afterwards forfeited for the nonpayment of calls, and $33,660 was paid in on the shares of stock subscribed. In this state of affairs, the mother bank, claiming the right to appoint six out of the nine directors to which the branch bank was entitled, and having appointed that number, ordered an election by the private stockholders for the three remaining directors on the 1st March, 1858. A controversy thereupon arose between the mother bank and the private stockholders as to the number of directors by which the mother bank on her part and the stockholders on their part should be represented in the board. The mother bank maintained that she had a right to appoint six of the nine directors, leaving three to be appointed or elected by the stockholders. The stockholders contended that they were entitled to elect five, the number to which the stockholders in all the branch banks directed to be established by the act were entitled. The directors of the branch bank passed a resolution, that, in pursuance to the order of the parent board and the notice given by the president of that branch, .an election for three directors on the part of the private stockholders should be held on the first Monday in March, 1858, at the banking house. As has been observed, the members of this board were appointed by the parent bank and represented its views. In accordance with the above resolution, an election was held at the time and place appointed. At that election, those of the stockholders who sided in opinion with the mother bank voted for three directors. The stockholders who maintained their right to elect five directors voted for five accordingly. The stockholder’s ticket, with five names upon it, received a great many more votes than the ticket with only three names. The average number of votes for the tickets respectively was 212 and 88. This result being reported by the judges of the election to the board, it was resolved that William H. Walker, William B. Phillips and Joseph W. Thompson, having received the largest number of legal votes, are hereby declared duly elected directors on the part of the private stockholders for one year next ensuing, and until their successors are appointed. The individuals above named are those whose names as candidates were on the ticket supported by those who maintained that only three directors could be elected by the private stockholders. This ticket, as has been already stated, received a less number of votes than the other ticket. Upon this, the five voted for as directors and who received the greatest number of votes caused an information in the nature of a quo warranto to be filed against the directors who were declared to have been duly elected, in order to oust them from their offices, which it was alleged they usurped. Upon a trial, the directors declared to have been duly elected were found guilty and fined; from which judgment they appealed.

Upon this state of facts, two questions are presented; first, whether the five directors were duly elected ; and, secondly, what was the number of directors to which the private stockholders were entitled.

On the part of the defendants it was contended that, under the resolution, only three candidates could be voted for; that the private stockholders, by casting their ballots for more directors than were authorized to be elected by the resolution, denied its authority, and must be regarded as having acted without right or legal power ; consequently, the votes given by them were illegal and void, and could not be counted. It can not be maintained that that is an election where the electors are permitted to vote for more persons to fill the office than are allowed by law. If such a course was tolerated, after the so called election it would be necessary to hold another in order to ascertain which of the number voted for shall have the office, as they all can not hold it. If a person, entitled to vote for three representatives only, votes for five, can it be known which three of the five he intended to elect ? How are the judges of the election to record such a vote ? If a person is authorized to choose one agent only, and he selects five, has he made any election ? As but one only of the five can serve him, is it known which one of the five he has chosen ? The fact that some have more votes than others does not prove that they are elected over those having a less number. Confine the votes to the legal number of candidates, and the result may be altered. If the result may be affected by such a course, it can not then be said that the election is a legal one. It is not like the case where each elector votes for whom he pleases, but confines his choice to the legal number of candidates. In that case, if a plurality elects, the persons having the highest number of votes are chosen. But where more candidates are voted for than are permitted by law, the fact that some have received more votes than others does not prove that they are elected. As each elector votes for more persons than the law allows, he does not designate those whom he would have to fill the office ; and if all the electors act in the same way, can their choice of those who should fill the office be known ? The objection to the act is, that the voters have not designated the persons for whom they voted. By voting in that way the judges of the election could not ascertain for which of the number the stockholders did vote, and would properly reject all such ballots. There may be no doubt that the majority of the stockholders in interest were opposed to those declared duly elected; but courts can only respect the will of individuals when it is embodied in the forms required by law. A candidate may receive only ten votes and be elected when there may be hundreds against him who have not expressed their voice in the way the law prescribes. As the stockholders wilfully and knowingly voted in disobedience to the resolution under which the election was held, they have no just ground of complaint. It is a matter of importance that offices should be filled; and if electors will knowingly cast their votes in an illegal manner, they can not object that those elected by the legal votes are not the choice of the majority of those entitled to vote.

It remains to be determined to what-weight the parent bank was entitled in the directory of the branch at Palmyra iii the election on the first of March, 1858. The 15th section of the 10th chapter of the act prescribes that “ the president and directors of the branch banks shall be chosen in the manner required by the general law, in cases where the capital furnished by the parent bank and the stockholders at the branch bank is equal; and when the greater amount is furnished by the parent bank, the number to be elected by the parent bank shall be in the same ratio increased to a number not exceeding that allowed by the general law.” It is maintained that under this section the branch bank at Palmyra, after it had subscribed an amount of stock equal to the capital furnished by the parent bank, was entitled to five, its full number of directors ; that in relation to the branches of the other banks established by the act, stock subscribed is regarded as capital, and the branches, on such subscriptions alone being made, are entitled to the number of directors allowed by law; that the word “ capital” should hare a uniform signification throughout the act. The general provision in relation to branch banks is, that they shall have nine directors, four of whom shall be elected by the directors of the parent bank and five by the stockholders who shall have subscribed for stock at the place of the location of the branch. In regard to all the other banks than that of the State of Missouri, they are not required to establish branches until |50,000 shall have been subscribed at the place of the branch unless three-fifths of their capital stock shall have been paid in, and the requisite sum shall not have been subscribed by the branch to authorize it to begin business, and the subscriptions reserved for the branches shall have been taken by the parent bank. When a branch bank begins business, the parent bank is never required to advance to it more capital than has been paid in on its stock subscribed. Thus it is seen that the branches, while having their five out of the nine directors, are required always to furnish as much capital as the parent banks unless on the happening of the contingencies stated above. These provisions then require that the branches shall furnish as much capital as the mother banks. The 14th section of the same chapter of the act directs that the parent bank may at any time, in its discretion, establish either or any of the seven branches, without the previous subscription of stock at the place of its location, but may withdraw the same unless an amount of stock, to be specified, shall, in the time required by the board, be subscribed and paid in by stockholders in the vicinity of the branch. This section, it will be seen, gives the bank authority to withdraw any branch established, unless a required amount of stock shall be subscribed and paid — a clear expression that it is not the subscribing of the stock alone that will enable a place to retain its branch, but the paying it in must follow the subscription in order to prevent a removal of it. The 15th section of the same chapter, which has been already copied, only preserves to. the branches the number of directors to which they arc entitled by the general provision concerning branches in cases where the capital furnished by the parent bank and the stockholders at the branch bank is equal; otherwise the directors are to be apportioned according to the amount furnished by the parent bank, if it exceeds the amount furnished by the branch. If the legislature intended that stock subscribed should be regarded as “ capital furnished,” would it by the 14th section have authorized the removal of the branch, unless stock was not only subscribed but paid in ? If the subscription of stock alone was regarded as furnishing capital, why remove the branch because it was not paid in ? In the section referred to, the word “ furnished” can not be predicated of stock. Subscribing stock is not furnishing capital. Could a bank do business on its stock alone ? Certainly it was intended that the branches should furnish that with which banking transactions might be carried on. What was it to the parent bank that any amount of stock was subscribed unless it was paid in ? Was it to furnish capital to be managed by those who had no interest whatever in it ?

If the directors then were to be apportioned according to the capital furnished, it remains to determine the number to which the parent bank and the branch were respectively entitled. The parent bank furnished $62,500; then, under the general law, the bank, being entitled to four directors, each one of them would represent $15,625, or, in other words, $15,625 would entitle it to a director. If the branch bank furnished the same amount, it being entitled to five directors, each one would represent $12,500, or $12,500 would entitle it to a director. As however it only furnished $33,-600, it would not be entitled to three directors, $37,500 being necessary for that purpose. But adopt the more equitable rule, and where the fraction is more than half allow it as a whole, and it would only be entitled to three directors.

Judgment reversed and proceeding dismissed;

Judge Napton concurring.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    The Town of Potosi, Appellant, v. Casey, Respondent.
    1. In a suit instituted in behalf of a town, under the 14th section of the act concerning towns (E. C. 1855, p. 1528), to recover of an individual a tax levied on his property, the defendant can not show that there was inequality in the valuation by the assessor of the taxable property of the town.

      Appeal from Washington Circuit Court.

      Carter, for appellant.

      Frissell, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

The town of Potosí brought an action against the defendant, under the authority of the 14th section of the act concerning towns (R. C. 1855, p. 1528), to recover the corporation tax levied on his property. No instructions were asked or given, and the only question presented by the record for our consideration arises on the plaintiff’s exception to the admission of improper testimony. The defendant was allowed to prove, against the plaintiff’s objection, that there was inequality in the valuation by the assessor of the taxable property in the town, and witnesses were permitted to give their opinions of the relative value of particular pieces of property, as that ‘ H.’s lot was appraised by the assessor at a less sum than O.’s, though it was worth greatly more.

This evidence was -inadmissible; for, if an assessment can be set aside and the right to collect taxes defeated by proof of this kind, there never was and there never will be a valid assessment in the state, for it is impossible to find two persons who will concur in all respects in their estimate of a particular piece of property, and of its value compared to another piece.

No other point is presented, but as the case must be retried, we may now say that we see no reason why the plaintiff ought not to recover.

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


author: Scott, Judge,

text:
    Dickey, Appellant, v. Tennison, Respondent.
    1. Private property can not constitutionally lie condemned and appropriated by the legislature to private use.
    2. The “act to establish a neighborhood road in Washington county, approved December 8, 1855, (Sess. Acts, 1855, p. 466,) is unconstitutional.
    3. Proceedings, instituted under an act of the legislature for the condemnation and appropriation of private property, commenced without notice to the owner thereof, are void.

      Appeal from Washington Circuit Court.

    This was an action in the nature of an action of trespass quare clausum fregit. The defendant justified under an act of the legislature, approved December 8, 1855, (see Sess. Acts, 1855, Adj. Sess. p. 456,) authorizing him to open and keep open a neighborhood road in Washington county. The proceedings under said act were adduced in evidence by the defendant. The court instructed the jury that said special act was constitutional, and if complied with it was a justification of the alleged trespass.

      Noell, for appellant.
    I. The road which was authorized by the act was not a public road. (See 25 Mo. 258, 277.) It was not a road of necessity. (11 Mo. 513.) No notice was given to plaintiff of the proceedings to condemn. (26 Mo. 193.)

      Frissell, for respondent.
   Scott, Judge,

delivered the opinion of the court.

Our constitution provides that no private property ought to be taken or applied to public use without just compensation. Whilst this provision recognized the right of eminent domain in the state for the public use, there is nothing which sanctions the doctrine that the property of individuals may be taken for private use with or without compensation. Such a right would be hostile to the existence of private property. If one individual could by law be compelled to transfer his property to another against his will, a great stimulant to the acquisition of wealth, which contributes so much to the prosperity of the state, would be taken away. Hence commentators on our form of government, whilst they acknowledge the right of eminent domain in the state for public use in its broadest terms, are unanimous in the opinion that private property can not be taken for private use. Some difference of sentiment may arise as to the application of this principle, but none deny or doubt its existence.

In order to determine this controversy, then, it will be necessary to consider the act under which the road was opened, the opening of which gave rise to the controversy, and to determine from its provisions whether the property therein authorized to be taken was for the public use. The act is found in the private and local acts of the adjourned session of 1855, p. 467, and is entitled “ An act to establish a neigliborbood road in Washington county,” approved December 8th, 1855. Names do not alter things, and when an act is unconstitutional in its essence, it can not be made valid by specious names or titles. But for the word “ neighborhood” in the act it would never occur to any one but that the road was for the private use of the defendant alone. By it he is authorized and permitted to open and keep open a neighborhood road. The' defendant himself is to mark out and report the road to the county court, who are then to appoint commissioners to assess the damages. The commissioners are to be paid for their services. The defendant is required to pay all damages assessed and all costs attending the matter, and the establishment of the road is made to depend on the performance of these conditions. It is obvious from these details that the existence of the road depends upon the will of the defendant. He is permitted to open it. This is unusual language to be employed in authorizing a road required for the public use. He is to pay all damages assessed and the costs of the proceeding. This is a wide departure from the usual mode of paying the damages for the opening of the ordinary public highways of the county. The commissioners themselves are to be paid by the defendant, as he pays all costs. Hów unjust is this to those who were injured by the opening of the road! One party to a controversy pays the judges, and their wages are at his discretion. Who would go before a tribunal when he knew that it was paid for its services by his adversary and the amount of its compensation fixed by him. The legislature, iii denominating this a neighborhood road, intended it should not be a public one, else the ordinary language would have been used in authorizing its establishment, and its existence would not have been made to depend on the will of the defendant. In ordinary parlance, a neighborhood road is one exempt from all control of the law, and its existence depends on the will of those over whose land it passes. The defendant? not owning the land, would compel the owner to submit to a right of way, not from necessity but for his own interest or gratification. It may be answered that all these objections might be urged against an act authorizing the building of a railroad. In a railroad charter, the public utility of the contemplated improvement is obvious. The legislature is the judge of tlio necessity of taking private property for public use, and when the courts can see that the object for which private property is taken is public use, they can not control the discretion of the legislature in determining on the necessity of the exercise of the right of eminent domain. In the act before us there is nothing which shows that the condemnation of the plaintiff’s property was for the public use; and as we may determine from the act authorizing the improvement whether the property directed to be taken is for the public use, there is no reason why the same means should not be resorted to in order to ascertain whether it is not for private use.

In my opinion, the proceedings are void for the want of notice to the plaintiff. Unless he was notified it was impossible, from the terms of the act, that he could have notice. The term of the county court at which the defendant was to apply for the appointment of commissioners is not designated in the act. It could be made when the defendant saw fit to have it done; so the plaintiff, without notice, could not be in court, as he would not know when the application would be made. It does not appear from the report of the commissioners that he was notified; it does not even appear that his consent was solicited; but, from the report, it may be inferred that the commissioners acted behind his back, without giving him any notice. While the proceedings were thus as it were studiously concealed from the defendant, of what avail to him was the right of appeal secured by the act. How could it be exercised unless he was notified of the steps taken by the defendant ? In giving a right to an appeal the statute must have contemplated that there should be notice to the party against whom the pleadings were had, otherwise he could not be benefitted by the right.

Nothing herein contained must be taken as expressing an opinion in hostility to the constitutionality of the act entitled “ An act to enable persons to secure the right of way.” (R. C. 1855, p. 1562.) That act contemplates nothing more than the regulation of the exercise of a right which existed without any statute, a right of way of necessity which every man enjoyed who owned lands surrounded by the land of others.

The judgment will be reversed and the cause remanded ;

the other judges concur.


text:
    Spalding, Plaintiff in Error, v. Mayhall et al., Defendants in Error.
    1. The term disseizin, as used in the third section of the act concerning forcible entry and detainer (B. .C. 1855, p. 787), has not a technical meaning; it applies to any entry, which is wrongful and without force, upon the actual possession of another.
    2. In an action of unlawful detainer the merits of the title can in nowise be inquired into; it is immaterial whether the intruder is a naked trespasser or enters under a paramount title; the purchaser at a sheriff's sale under an execution is put to his ejectment if the defendant refuse to yield possession.
    3. After a jury has returned a special yerdict, the court should not resubmit the cause to them for a general verdict with instructions.

      Error to Ralls Circuit Court.

    This was an action of unlawful entry and detainer to recover possession of certain premises in the town of New London. On the trial in the circuit court, the jury, under the instruction of the court, found a special verdict, of which the following is the substance : That plaintiff erected the house ■ on the premises in controversy and occupied the same up to September 17, 1855; that said premises had been purchased by Southworfch and Wellman at a sheriff’s sale under an execution against plaintiff Spalding; that Southworth and Wellman in August, 1855, after their purchase, applied to plaintiff for possession and plaintiff promised to deliver the possession to them within three weeks ; that shortly after the expiration of that time plaintiff moved to Hannibal, locking up the house and taking the key with him; that plaintiff loaned the key to one Mr. Farmer to get some property belonging to Farmer out of the house under an agreement that Farmer would return the key to him ; that a few days after-wards Mr. Southworth procured the key from Farmer and took possession of the premises; that Southworth and Well-man sold the premises to one Shulmire and put him in possession of the premises; that Shulmire sold to one Ellis; that Ellis rented the same to defendants and put them in possession ; that they remained in possession until the institution of this suit; that on the 8th of July, 1856, plaintiff served on defendants a demand in writing for the possession of the premises ; that defendants failed and refused to deliver possession.
    The plaintiff asked the court to instruct the jury “ that upon the facts as proved by the jury in their special verdict the jury ought to find the defendants guilty in manner and form as charged in the complaint.” The court refused so to instruct, but- at the instance of the defendants instructed the jury “ that if they believe the facts to be as found in the special verdict, the jury ought to find the defendants not guilty in manner and form as charged in the complaint.” The jury found for defendants.

      Porter and Harrison, for plaintiffs in error.
    I. The plaintiff’s cause of action is made oxit by the special verdict. The court should have so decided. (R. C. 1855, p. 787.) Southworth unlawfully acquired possession; his possession being thus unlawfully acquired, his transferring that possession could not relieve himself, or any holding mediately or immediately under him, from the liability imposed by law in plaintiff’s favor. (See Warren v. Ritter, 11 Mo. 854; 1 Monr. 127; 2 Dana, 111; 4 Dana, 168.)

      Southworth & Wellman, for defendants in error.
    I. The possession of defendant was not obtained and continued wrongfully by disseizin. The possession of defendant can not be disturbed by Spalding.
   Richardson, Judge,

delivered the opinion of the court.

It is declared in the third section of the act concerning forcible entry and detainer that “ when any person wrongfully and without force by disseizin shall obtain and continue in possession of any lands, tenements or other possessions, and' — after demand made in writing for the deliverance of the possession thereof by the person having the legal right to such possession, his agent or attorney — shall refuse or neglect to quit such possession, such person shall be deemed guilty of an unlawful detainer.” Lord Coke says: “ A disseizin is when one enters intending to usurp the possession, and to oust another of his freehold;” but it was observed in Warren v. Ritter, 11 Mo. 354, that the term disseizin, which is strictly only applicable to freehold estates, was not employed in the statute in its technical sense, and was intended to apply to an entry which is wrongful and without force upon the actual possession of another; and the obvious design of the statute is, “ to prevent the intrusion of one person on the lawful possession of another, without his consent, and to secure a peaceable possession from being changed without authority of law against the will of the occupant.” (Wunsch v. Grelet, 26 Mo. 580.)

The 26th section of the act provides that the merits of the title shall in nowise be inquired into, for the law forbids an unlawful entry with or without title, and it is immaterial whether the intruder is a naked trespasser or enters under a paramount title, for if he has the right to the possession he must resort to the authority of law to obtain it. (Warren v. Ritter, 11 Mo. 354; Brumfield v. Reynolds, 4 Bibb, 388.) The purchaser of real estate under an execution is put to his ejectment if the defendant refuses to yield possession; and, therefore, as the merits of the title can not be inquired into in this proceeding, Southworth and Wellman and those who claim under them occupy no better position than if they had entered without color of title. And the main question in the case is, whether the plaintiff was in the actual possession of the premises at the time of the entry; for if he was, the defendants took shelter under their title.

The jury might infer, from the circumstance that the plaintiff promised to give up the possession and afterwards removed to Hannibal, leaving the house vacant, that he intended to abandon the possession; in which event he can not recover. But, although he moved away, if by retaining the key he intended to hold the exclusive possession to himself, it continued in him; for actual possession does not mean that the owner must remain continually on the land, (11 Mo. 354; 4 Bibb, 388.) It is a question of intention coupled with appropriate acts indicating a purpose to retain possession. This fact is not found in the special verdict.

The practice in this case was irregular. After the jury returned a special verdict, the court gave instructions and resubmitted the case to them, who thereupon returned a general verdict. If a special verdict finds the facts responsive to the issue on which a judgment can be rendered, the functions of the jury cease, and it is the duty of the court to give the judgment. (R. C. 1855, p. 1263, § 20.)

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


text:
    Moore, Respondent, v. Winter et al., Appellants.
    1. Where a person hires a slave for a year and the said slave is ■wrongfully taken out of his possession during the term of service, the measure of dam- ■ ages in a suit against the wrongdoer is the value of the services of the slave during the residue of the term, even though the suit should be instituted before the expiration of such term.

      Appeal from Montgomery Circuit Cowrt.

    This was an action to recover damages for the alleged wrongful taking of a slave out of the possession of the plaintiff. One Christopher Carter hired a slave to one R. S. Brown for one year from the 1st of January, 1857. Carter gave his note for the hire — one hundred and seventy-five dollars — with Sterling Winter as his security. Brown took possession of said slave and continued to hold possession of him until March 28, 185T, on which day he hired him to the plaintiff Moore for the remainder of the year. The defendants Winter and King on the same day took said slave out of the possession of plaintiff and detained him from plaintiff during the remainder of the year. This suit was instituted April 27, 1857. The court gave the- following instruction: “ 2. If the jury find for the plaintiff, then they will assess the value of the services of the slave from the time of the taking to the termination of the year for which said negro was hired, and any other damage that they find from the evidence has resulted to plaintiff from such taking.” The jury found for plaintiff.

      Henderson, for appellants.
    I. No damages could be allowed for any detention since the commencement of this suit. (1 Harp. 276 ; 6 Pick. 206; 1 Car. & Marsh. 431; 3 Jones, N. C. 215 ; 2 Bibb, 215 ; 2 Gilm. 688; 3 Denio, 283; 2 Burr. 1077.)

      Jones & Hayden, for respondent.
    I. The court correctly laid down the rule with respect to the measure of damages. (See Garth v. Everett, 16 Mo. 490.)
   Richardson, Judge,

delivered the opinion of the court.

No circumstances of aggravation are shown in this case, and the action is therefore to be regarded as one of trover in reference to the measure of damages; (Walker v. Borland, 21 Mo. 289; Sedgwick on Dam. 558;) and in such cases the plaintiff is generally only entitled to recover the value of the property with interest. (Polk v. Allen, 19 Mo. 457.) If, however, the plaintiff has only a special property in the subject of the action, the value of the goods is not always the measure of relief, and he can generally only recover com-mensúrate with the value of his interest, whatever it may be. Thus, if he has an estate for life or for a, given number of years, the value of liis interest will furnish'the'rule of compensation ; (12 S. & Mar. 223;) and in this case, as the plaintiff had the right to the possession and services of the slave from the time he was taken away by the defendants to the end of that year, he ought to recover damages for the value of the services of the slave during the residue of tiré-term. (Compton v. Martin, 5 Pick. 14; Hickok v. Buck, 22 Verm. 149.) In Compton v. Martin, the defendant hired to the plaintiff a negro man for two years, but a few days after the slave was put into the possession of the plaintiff, he returned to his owner and was sold, so that the plaintiff was deprived of his services. In an action of trover, the plaintiff was allowed to recover the difference between the amount fixed as hire and the profits of the negro’s labor for two years. The defendant, in Hickok v. Buck, leased to the .plaintiff a farm for one year and agreed to furnish a horse for the plaintiff to use upon the farm during the térm. The horse was furnished, but was taken away by the' defendant and sold before the expiration of the year. It was held that the plaintiff acquired a special property in the horse, and was entitled to recover, in an action of trover, damages for the loss of the use of the horse for the remainder of the year.

The first clause of the second instruction is equivalent to a declaration that the plaintiff could recover, the value of his interest in the slave, and therefore properly prescribed the measure of damages. The instruction however goes further, and does not stop at laying down a rule that covers all the damages that the plaintiff was entitled to demand, but declares that he was entitled to recover for “ other damage.” The latter clause of the instruction invited the jury into a field of indefinite boundaries, for it did not indicate the kind of damages, whether actual, remote, or speculative, which it was proper for them to consider and allow in'addition to the value of the plaintiff’s interest in the share; and as the first part of the instruction embraced every element to be considered in tlie estimate of damages, the latter part should have been omitted.

The judgment will therefore be reversed and the cause remanded;

Judge Napton concurring. Judge Scott not sitting.


text:
    Twyman, Appellant, v. Twyman, Respondent.
    1. After a husband or wife has been wronged in such a manner as would warrant a divorce, if he or she voluntarily cohabits with the other party, it is a condonation of the offence.
    2. The admissions of a party to a proceeding for divorce are evidence against him, but alone they are not sufficient to warrant a decree; they must be supported by other evidence.

      Appeal from Monroe Circuit Court.

      Howell, for appellant.
   Scott, Judge,

delivered the opinion of the court.

The evidence in this case is not sufficient to warrant a divorce. The specific acts of misconduct alleged in the petition, no doubt, if recent and supported by the necessary evidence, would, under our law, warrant a decree separating a wife from her husband. The main charges of cruelty alleged in the petition occurred some years before the institution of this suit, and there seems to have been a long cessation of injurious conduct on the part of the husband. In the language of those who write on the subject of divorces, there is such a thing as condoning marital offences. After one of the married parties has been wronged in a way that would warrant a divorce, if he or she voluntarily cohabits with the other party it is a condonation of the offence. However, an offence pardoned in this way will revive upon a subsequent violation of the marital duties. Considering the evidence in the cause, the plaintiff must have been under some undue influence hostile to the defendant. Just before the beginning of this suit, she agreed to live with him if he would remove to the neighborhood of her friends. After he had in compliance with this understanding taken a portion of his goods to the house of his wife’s mother, his wife refused to see him any more and invited him to leave her mother’s, where she was then living, and where the goods removed had been temporarily left.

None of the grounds relied on for a divorce are supported by any other evidence than the expressed and implied admissions of the defendant, made at a time and under circumstances which show that, as his object was a reconciliation with his wife, he deemed it more advisable to acquiesce in her accusations than to alienate her by a contradiction of them. The chief witnesses, too, who testify to these admissions, seem to have been sent to the defendant to extract evidence by which the charges in the petition might be sustained, as the institution of this writ was simultaneous with the disclosures made by the witnesses. Dr. Crow proves an admission by the defendant that he had wronged his wife, but what those wrongs were does not appear; though we may infer they were not very serious, as he states in the same connection that the defendant informed him that he was not aware of the cause which induced his wife to leave him. It would be very unsafe to base a judgment on the evidence of Mrs. Davis, when we regard her feelings, the relationship between her and the plaintiff, and the suspicion, that arises from the circumstances of the case, that she had an agency in causing the alienation of feeling between the parties to this suit. She proves moreover nothing more than what she regarded as admissions by the defendant of the truth of the charges alleged against him. The admissions made, even if satisfactorily proved, are made in such a way and under such circumstances as fill the mind with mistrust in endeavoring to rest a decree for a divorce upon them. The admissions of a party in a proceeding for a divorce against him are evidence, but alone they are not made the foundation of a decree. They must be supported by other evidence. There may be cases in which the court may be satisfied that the confession is genuine and sincere, from the circumstances under which it is made and the manner in which it is used, the defence made and the mode of conducting it. (Holland v. Holland, 2 Mass. 154; Betts v. Betts, 1 J. C. 197; Bishop on Divorce, 305-8.)

Although the appearances as to the relations between husband and wife are delusive, and neighbors and acquaintances may be deceived as to their real bearing to each other, yet it is singular that, if the treatment of the husband to his wife has been such and had been so long continued as would warrant a divorce, none of the numerous witnesses who were examined by the defendant, some of whom were in a situation to observe any ill-feeling, discovered any thing unbecoming a husband in the conduct of the defendant. The grandfather and grand-mother of the plaintiff, with whom (she being an orphan) she spent many years of her infancy, with whom she lived until her marriage, who made and received visits after the marriage, and who were on the most intimate and cordial terms with her, speak in the most favorable manner of the conduct of the defendant as a husband. As the plaintiff visited her grand-parents after her marriage, as she stood in relation to them both as a child and grand child, is it not remarkable that she did not disclose to them the wrongs which she endured. Other near relations of the plaintiff, who were examined as witnesses for the defendant, testify in warm terms of approbation of his conduct as a husband. Indeed, taking all the circumstances of the case together, it seems that the conduct of the defendant has been reviewed under unfavorable circumstances, and, long after it was past and should have been forgotten, has now been brought against him to effect a divorce.

Affirmed.

The other judges concur.


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    Phillips, Appellant, v. Riley, Respondent.
    1. A surety in a promissory note, who gives notice to the payee to commence suit forthwith against the principal, a non-resident of the state, is not exonerated from liability by a failure of such payee to commence suit within thirty days after such notice. (See E. C. 1855, p. 1454.)

      Appeal from New Madrid Circuit Cowrt.

    The following is the notice referred to in the opinion of the court: “ Sir — You are hereby required forthwith to commence suit against Eichard Phillips, principal in a certain note held by you, signed by said Phillips as principal and by the undersigned as security, dated 1st of February, 1855, and payable twelve months after date, for four thousand dollars, for value received. [Signed] Amos Eiley.”

      U. Wright, for appellant.
    I. Notice by security to sue a principal who is a non-resident of the state, may be disregarded by the creditor because not embraced by our statute. (18 Mo. 146; 7 Mo. 297. No extra-territorial activity can be imposed upon the creditor, nor within the state can any extraordinary process be exacted of him. The only right of the security is to hold the creditor to diligence according to the “ ordinary course” of law.

      S. T. & A. D. Glover and R. S. Hart, for respondent,
    cited Indiana Laws, 1838, p. 234; 5 Blackf. 311; Ill. Stat. 1856, p. 1083 ; 18 Ill. 249; 18 Ohio, 56 ; 2 Ky. Stat. 1834, p. 1441; 3 Dana, 160 ; 9 B. Monr. 432; 5 Leigh, 153 ; 17 Mo. 399 ; 18 Mo. 140 ; 7 Mo. 297.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff commenced a suit on the 21st of August, 1857, on a promissory note, executed by Eichard Phillips as principal, and the defendant Eiley as his surety, for four thousand dollars, due the 1st of February, 1856. There was no service on Phillips, and the plaintiff discontinued as to him, but the summons was served on the defendant the day it issued. The only defence set up was that the defendant on the 8th of July, 1857, had caused a notice to be served on the plaintiff requiring him to commence suit immediately against the principal in the note, and that he had neglected to commence suit within thirty days after the notice. The case was tried by the court without a jury. The only evidence offered on either side was the note, the notice and service thereof, the summons in the cause, and the testimony of the defendant himself that the principal in the note was a non-resident of the state ; and on these facts judgment was rendered for the defendant.

.There is no conflict in the testimony, but a total absence of any proof whatever to support the judgment. The notice of the 8th July, did not simply require the plaintiff to commence suit on the note, but that suit should be commenced against Richard Phillips, the principal, who was a non-resident of the statei The defendant had no cause to complain that he was not sued sooner, and he could not by his notice compel the plaintiff to go out of the state to sue the principal. (Hughes v. Gordon, 7 Mo. 297; Perry v. Barrett, 18 Mo. 180.) There could be no dispute about the facts, for they are very few and simple, and the error of the court was clearly in the application of the law to the facts.

We all agree in‘the law of the case and that the judgment was for the wrong party; but Judge Scott thinks that nothing was saved by the plaintiff to authorize the interference of this court.

Judge Napton concurring,

the judgment will be reversed and the cause remanded.


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    Wiley, Respondent, v. Robert, Appellant.
    1. A sheriff’s sale of real estate is within the statute of frauds, and a note or memorandum thereof in writing must he made to bind the parties.
    2. A memorandum made by a deputy sheriff and signed by him of a sale of one of several lots in a partition proceeding, in which Louis Robert and others were plaintiffs, and one B. T. Adams defendant, was as follows: “Partition, Lands — Louis Robert v. B. T. Adams — Lot No. 11 — 274 80-100 a. — Louis Robert — $10.50 per a. — $2,885.40.” Held, that this memorandum was sufficient to take the case out of the statute of frauds.
    3. The sheriff can, in such case, maintain an action in his own name against the purchaser for the purchase money, although the latter may not have given a note therefor to the sheriff.
    4. Where a sale in partition proceedings is made and the land embraced in the suit is bid off by one of the parties, the purchaser can not, by any agreement with any of the parties to the suit with respect to the land and the payment of the purchase money, affect the right of the sheriff to collect of such purchaser his lawful fees or enough of the purchase money to pay the costs and the portions of the purchase money belonging to those parties, if any, who do not enter into any agreement in the nature of a release with the purchaser.

      Appeal from Jefferson Circuit Cowrt.

    This was an action brought by the sheriff of Jefferson county to recover from Louis Robert the amount bid by him for a certain tract of land at a sale in a partition proceeding, in which said Robert and others were plaintiffs and B. T. Adams defendant. The defendant denied in his answer that a memorandum in writing of the alleged sale had been made by any one lawfully authorized. The defendant also set up that after said sale it was agreed between the plaintiff in said partition suit and the defendant therein, Adams, that the latter should keep the land and compromise upon a price to be agreed upon; that Adams retained possession of said land; that plaintiff had not disturbed him, and was ready to carry out the agreement when Adams should require. This portion of the answer was stricken out on motion of plaintiff. The answer also set up that under the judgment in the partition proceeding defendant was entitled to one-fifth of the purchase money. The court refused to declare the law as follows, as asked by defendant: “ The contract, as set out in the petition and as shown by the proof, not being in writing, nor any note or memorandum thereof, signed by the defendant nor by some person by him lawfully authorized, is void, and the plaintiff can not recover.”
    The court found for plaintiff, and gave judgment against defendant for the amount bid by him with interest, &c.

      Whittelsey and Pipkin, for appellant.
    I. There was no sufficient memorandum of the sale, so as to give the sheriff a right to enforce a specific performance of the contract. A sheriff’s sale is within the statute of frauds. (2 Johns. 248; 8 Johns. 520, § 47 ; 3 Blackf. 472; 8 Blackf. 105; 8 Mo. 177; 2 Camp. 203; 5 B. & Aid. 333.) The terms of sale are not given. The lot bought is not sufficiently described. (3 Duer, 395 ; 1 Johns. 273; 14 Johns. 15; 7 East, 558 ; 16 Wend. 130; 7 Mo. 389.) The sheriff can not maintain an action for specific performance of a contract for the purchase of real estate. He has no such possession nor interest as will authorize an action. (10 Johns. 387.) The damages were excessive. The sheriff was entitled only to the interest he had — commissions and costs. One-fifth of the purchase money belonged to defendant. The court erred in striking out that portion of the answer setting up the agreement with Adams. (7 Mo. 569 ; 11 Mo. 659 ; 20 Mo. 81.)

      Frissell and Green, for respondent.
    .1. The statute of frauds does not apply to shei’iff’s sales. If it does, the memorandum in this case is sufficient. Besides, the defendant does not deny the sale to himself nor his bid. (See Smith on Contracts, 36; Sugd. on Yend. 133 ; Hilliard on Sales, 185.)
   Richardson, Judge,

delivered the opinion of the court.

A sheriff’s sale of real estate is within the statute of frauds, and a note or memorandum thereof must be made to bind the parties. (Evans v. Ashley, 8 Mo. 177.) W.e think, however, that the memorandum made by the deputy sheriff in this case was sufficient for that purpose. The deputy states that the sheriff handed to him the advertisement and copy of the order of sale in the .partition suit of .Robert v. Adams, and directed him to proceed with the" sale; that he acted as clerk, and Johnson as auctioneer; that the advertisement was first read and then the land was put up in parcels, and as it was struck off he immediately wrote on a memorandum the number of the lot sold, the name of the purchaser, and the amount of the bid. The memorandum was produced, and at the caption was written, “ Partition, Lands. Louis Robert v. B. T. Adams.” Then follows the number of the lot, the quantity it contains, the purchaser’s name, the price per acre', and the aggregate; for example: “Lot No. 11 — 274 80-100 a. — Louis Robert — $10.50 per a. — $2,885.40.” The title of the partition suit being placed at the head of the memorandum of the sale connected the papers in that case with the memorandum, for the purposes of this inquiry, as perfectly as if they had been specially referred to and made, a part of it; and therefore it was not necessary to resort to parol evidence in order to connect other papers with it, to show the agreement of the parties and to establish a valid contract.

The sheriff was the agent appointed by law to make the sale ordered in the partition suit, and it was his duty to collect the purchase money and pay it over to the parties respectively entitled to it. If the defendant had complied with the terms of the sale, his note for the deferred payment would have been executed to the sheriff, (R. C. 1855, p. p. 1116, § 35,) which he could have collected by suit in his own name. This' suit is not a proceeding to enforce the specific performance of a contract, but is simply an action of assumpsit for land, sold ; and, as the plaintiff was the trustee of an express trust created by law and the judgment in the partition suit, we see no reason why he can not maintain this action. For the fact that the defendant failed to give his noto, as it was bis duty to do, can not affect the right of the sheriff to sue him for the purchase money.

It seems that the defendant was entitled to four-twentieths and Adams to fifteen-twentieths of the proceeds of the sale in partition suit, so that the two together were entitled to nineteen-twentieths. The defendant set up in his answer that after the sale there was an agreement between him and Adams by which it was agreed that the latter was to take the land on terms to be afterwards agreed on between them. Now they could not by an outside arrangement between themselves affect the right of the sheriff to his lawful fees or the right to collect enough to pay all the costs and the portion coming to the parties entitled to one-twentieth of the proceeds ; but they had a right to do what they pleased with nineteen-twentieths less the costs ; and it would be very unnecessary to compel the defendant to pay the whole of the purchase money after the others had surrendered their right to it, and when nearly all of it would be immediately paid back to him.

It was not necessary that the answer should aver that the agreement with Adams was in writing, for the statute has not changed the common law mode of declaring, and a writing could be given in evidence in sxipport of the averment sufficient to take the case out of the statute. If then the defendant can show a valid agreement with Adams that will silence his claim against the sheriff for any part of the purchase money, the defendant ought not to be compelled to pay the portion represented by Adams. But if the contract, when proved, will not operate as a release by Adams for any share of the purchase money, it will not avail the defendant in this action.

We think, then, that the court erred in striking out a part of the defendant’s answer, and for the reasons already given the judgment ought not to have included all of the four-twentieths which belonged to the defendant.

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


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    Holtzclaw et al., Defendants in Error, v. Duff et al., Plaintiffs in Error.
    1. The liability of warehousemen and forwarding agents is different from j that of common carriers ; they are responsible only for losses occasioned j by their fault or negligence.

      Error to Hamdbal Cowt of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Lamb & Lakenan, for plaintiffs in error.
    I. Prom the plaintiffs’ own testimony defendants were only shown to be carriers of persons and property on the Hannibal and St. Joseph Railroad. They carried upon no other thoroughfare. They were not in the habit of shipping their freight on board of steamboats or of storing it at Hannibal. Defendants were not common carriers. They were not responsible as common carriers for the loss in question. They transported the hemp safely to Hannibal. (See Story on Bail. § 546, 446; 4 Term R. 581.) The defendants had a right to exempt themselves from liability as common carriers. They did so by giving notice. (13 Barb. 853 ; Sto. on Bail. § 549; 2 Kent, Comm. 605; 2 Camp. 415; 3 B. & C. 606; 6 How. 882; 2 Comst. 204.)

      Dryden, for defendants in error.
    I. A carrier can not limit his common law liability by the publication of a notice such as is relied on in this case. (6 How. 882; Sto. on Bail. § 570, 571; see 2 Hill, 623; 19 Wend. 240; 19 Wend. 272.)
   Richardson, Judge,

delivered the opinion of the court.

The defendants were the contractors for the construction of the Hannibal and St. Joseph Railroad, and used so much of the road as was finished in running cars for transporting materials for the work and in carrying passengers and freight for compensation. They caused notices to be published and posted at the stations on the line of the road — which were seen by the plaintiffs before they made the shipments that led to this controversy — to the effect that they proposed, for the convenience of citizens along the road, to transport persons and the articles of merchandise therein named upon certain conditions, which should become a part of all contracts for transporting persons and property, to-wit: 1st, that they did not assume the position of common carriers, and would not be subject to any responsibility as such; 2d, that they would not be responsible for any loss or injury which might result from accidents to the trains, detention, exposure to the weather, or any other cause; 3d, that the owner must receive his goods on the arrival of the cars at the place of delivery; and, 4th, that as store-houses had not been provided at the stations on the road, they could not take care of property after its arrival at the place of destination, and therefore reserved the right, in case the owner should not be present to receive his property, to store it, subject to the charges for transportation, at the owner’s risk and cost for drayage and storage. On the 1st and 2d September, 1856, the plaintiffs delivered to the defendants at the Palmyra dép$t two lots of hemp, in good order, which they agreed, in consideration of a reasonable reward to be paid by the plaintiffs, to carry safely to the Mississippi river (at Hannibal) and there to be safely delivered on board of a steamboat for the purpose of being carried to St. Louis. When the hemp arrived at Hannibal it was removed from the cars and deposited on the levee in front of the steamboat landing, and whilst lying there awaiting a boat, being insufficiently protected, was injured by rain. The defendants had no warehouse at Hannibal for storing freight, except a building fifteen by forty feet, which was sometimes used for that pur pose; but a portion of it was occupied as a machine shop, in which a steam engine was in operation. It appeared however that there were warehouses in Hannibal, owned by different commission merchants, sufficient to have stored the hemp, distant four or five hundred yards from the terminus of the road. The court instructed the jury that the defendants were common carriers; that they could not limit their common law liability as such by a general notice to the public, and that they were liable for any injury to the hemp from the time they received it until they delivered it on a steamboat to be carried to St. Louis.

It is not necessary for us, in the decision of this case, to determine the legal effect of the notice which the defendants gave the public, nor whether they were common carriers, for, whether they were such or not, the notice would not excuse them from loss occasioned by their negligence or want of ordinary care, and beyond that, in this case, they are not liable. Assuming, however, that they were common carriers, the fair construction of the contract is that they undertook to carry the hemp safely to the terminus of the railroad, and there to deliver it on board of a steamboat to be transported to St. Louis ; and the contract subjected them to the liability of common carriers until the hemp reached the point where it left the road, and then to the liability of forwarders for storage and delivery to a steamboat. (Pierce Railroad Law, 451.) Both duties were embraced in one contract for hire, and, although there was no separate charge for taking care of the hemp after it reached Hannibal, and for shipping it to St. Louis, yet the freight, which the plaintiffs were bound to pay, covered the compensation for the whole services,' for the storage and forwarding as well as for the carriage. The contract imposes distinct duties, for a failure in which the defendants were subjected to two separate liabilities in different degrees of responsibility; first, that of common carriers, and next, that of warehousemen and forwarding agents. (Sto. Bail. § 446.) As common carriers they were, to a certain extent, insurers of the hemp as long as it was in tran-situ, subject only to the exceptions which will excuse a delivery, arising either from the act of God or from the public enemies. But after the hemp reached the terminus of the road and was removed from the cars, a different and less onerous obligation was assumed, and they became liable as warehousemen and forwarding agents, and as such were only bound to take reasonable care of ,the property, and were only answerable for losses occasioned by their fault or negligence. This principle has a familiar illustration in the leading case of Garside v. Treat & Mersey Nav. Co., 4 Term R. 581. The defendants in that case, who were common carriers between Stour-point and Manchester, undertook to carry goods from the former place to the latter, and to forward them from thence to Stockport. When the goods arrived at Manchester there was no Stockport carrier there at the time by whom they could be sent on, and they were deposited in the defendant’s warehouse to await an opportunity of being sent to the place of destination by the Stockport carrier, but before an opportunity occurred they were destroyed by an accidental fire. It was held that the carrier was not liable, because his obligation as carrier had ceased, and that of warehouseman had commenced before the loss.

It was the duty of the defendants to exercise ordinary care, skill and diligence in preserving the hemp after it was taken from the cars; and in determining what is reasonable care, the nature of the commodity, its liability to injury from exposure to rain, the kind of weather at the time it arrived, the usual mode of storing or piling on the levee, and the ordinary manner of protecting such property out of doors, are circumstances to be considered by the jury; for what would be deemed ordinary care in reference to lead, pig-iron, or other articles of commerce not easily injured by exposure, would be gross negligence in reference to flour, grain, hemp or other produce affected by dampness and requiring greater attention. When the plaintiffs delivered the hemp to the defendants, they had a right to expect that they would deal with it in good faith and take reasonable care of it, and they must answer for any loss the plaintiffs have sustained for the want of ordinary care on their part.

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


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    Hannibal, Ralls County and Paris Plank Road Company, Appellant, v. Robinson, Respondent.
    1. Under tlie revised code of 1845, a justice of the peace could set aside a nonsuit only in case it -was rendered on account of the absence of the plaintiff at the time appointed for trial; if a justice should render a judgment of nonsuit and dismiss a cause for the alleged reason that the plaintiff had not filed with him the instrument of writing on which the suit was founded, no motion to set aside such nonsuit would be necessary to entitle the plaintiff to an appeal.
    2. The seventh section of the second article of the act regulating proceedings in justices’ courts (E. C. 1845, p. 638) did not, in a suit to recover the balance alleged to be due on a subscription to the capital stock of a plank road company organized under the act of Pebruary 27, 1851, (Sess. Acts, 1851, p. 259,) require the filing of the original articles of association executed by defendant and others for the purpose of organizing the company.

      Appeal from Ralls Circuit Court.

      Porter & Harrison, for appellant.
    I. No motion to set aside the dismissal was necessary. The clause of the statute requiring the filing with the justice of any paper on which the suit is founded before any process issues is merely directory. (6 Mo. 516.) By the by-laws the original articles of association had to be kept by the secretary for the use of the members.

      W. E. Cooke and Vanswearingen, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff filed (July 14, 1854) an account against the defendant for the balance due on his subscription to the capital stock of the Plank Road Company. At the trial before the justice both parties appeared, and on the defendant’s motion the cause was dismissed because the plaintiff had not filed the original articles of association on which the liability of the defendant arose. The plaintiff thereupon appealed to the circuit court. In that court the defendant moved to dismiss the appeal because the plaintiff had not applied to the justice to set aside the nonsuit, and because an appeal will not lie from a judgment of nonsuit before a justice unless a motion is first made to set it aside. The defendant also renewed the motion to dismiss the suit that had been made and sustained by the justice. Both motions were sustained. Pending these motions, the plaintiff filed the original articles of association purporting to be signed by the defendant and many other persons, from which it appears that the instrument was executed for the purpose of organizing a corporation for the construction of a plank road between designated points, pursuant to the provisions of an act of the general assembly entitled An act to authorize the formation of associations to construct plank roads and macadamized roads,” approved 27th February, 1851. (Sess. Acts, 1851, p. 259.) This paper shows the objects of the association, the respective sums agreed to be paid by the stockholders thereto, and in all particulars seems to conform to the requirements of the second section of the act. The plaintiff also filed the bylaws of the association, which require among other things that the secretary shall carefully keep and preserve all books and papers belonging to the company, subject at all times to the inspection of any stockholder.

The record presents only two questions, which are, first, was it necessary for the plaintiff to move to set the judgment of nonsuit aside before the appeal was taken; and, second, was it necessary that the original articles of association should be filed with the justice at the commencement of the suit.

In suits in justices’ courts, if the plaintiff fail to appear in person or by agent, the justice is required to render judgment of nonsuit against him with costs, unless the action is founded on an instrument of writing purporting to have been executed by the other party and the demand is liquidated.. So also judgments by default may be rendered against the defendant if he fail to appear, and such judgments of nonsuit, and by default may be set aside by the parties for good cause; shown, provided application is made for that purpose within ten days after the rendition of the judgment. (R. C. 1845, p. 651, § 7, 8, 9 and 10.) And it has been often decided that an appeal can not be prosecuted from a judgment of nonsuit rendered because the plaintiff failed to appear, or by default, unless an application to set it aside is first made in due time to the justice and overruled. But a justice of the peace has no general power to set aside verdicts, and can only grant new trials in cases provided for by the statute; and as he can not set aside a judgment of nonsuit unless it was rendered on account of the absence of the plaintiff, it would be useless to require a plaintiff, nonsuited for any other reason, to ask the justice to set aside a judgment over which he has no control. The judgment in this case was not a nonsuit within the meaning of the ninth section of the act referred to, and therefore, as the justice had no power to set it aside, the plaintiff was not bound, as a preliminary to the right of appeal, to move the justice to set it aside.

The section of the statute which provides that “ whenever any suit shall be founded on any instrument of writing purporting to have been executed by the defendant, such instrument shall be filed with the justice before any process shall be issued in the suit,” does not apply to a case like this. The instrument on which the liability of the defendant arose was the organic act of the company, and by the by-laws of the corporation of which he was a member was required to be kept by the secretary subject to the inspection of the stockholders. It contains the names of all the stockholders ; and if it be, as the defendant contends, that this paper must be filed in a suit against any delinquent and remain with the court or justice during the pendency of the litigation, then but one suit can be prosecuted at the same time, and that one might be so long in court that an action against other delinquent subscribers would be barred by limitation. Very often all the original subscriptions to the stock of a corporation are made in one large book, containing other matter of daily use to the company, and to require such a book to be filed in a suit would not only cause great inconvenience to the business of a corporation, but would practically deny it the process of the law to inforce the collection of its demands. The subscribers to the stock may reside in different parts of the state, and if many of them refused to pay the calls on their stock, the life of the corporation might expire before every delinquent could be sued. The statute ought not to receive a construction which would work such public inconvenience, when a more liberal view will subserve all the purposes of justice, and injure no one. If the defence puts in issue the execution of the paper, it will be time enough to produce the original.

Judge Napton concurring, the judgment will be reversed and the cause remanded. Judge Scott not sitting.


text:
    Mitchell, Respondent, Williams, Appellant.
    1. An action on a guardian’s Rond must be brought in the name of the state.
    2. In an action on a guardian’s bond the settlements and allowj§3 guardian in the probate court are conclusive upon the ward.

    3. An equitable proceeding to set aside allowances of a probate ccmrt of a guardian can only be sustained by proof that the allow! fraudulently procured by such guardian.

      Appeal from Jefferson Circuit Court.

      Noell, for appellant.
    I. When county courts malee allowances to guardians, these adjudications are conclusive unless attacked and set aside in a proper proceeding on the ground of fraud in obtaining them. No fraud was shown or found in this case. The statute of limitations also is a bar to the present proceedings. The cause of action, if any, accrued more than five years previous to the commencement of this suit. The finding is defective on this point. (Jones v. Brinker, 20 Mo. 87 ; 20 Mo. 530.)

      T. C. Johnson, for respondent.
    I. The facts are admitted to be correctly found ; there was no motion of review as to them. (18 Mo. 201, 254; 17 Mo. 553.) The suit is not barred by the statute of limitations. It was in proof that the fraud was not discovered until six months before the bringing of the suit.
   Richardson, Judge,

delivered the opinion of the court.

The petition states that the defendant was appointed in 1838 guardian of the person and property of the plaintiff, and executed a bond conditioned for the faithful discharge of his duty. It alleges that he did not faithfully perform the duties of his office, and proceeds to assign many breaches, which are chiefly that he fraudulently made false charges against the plaintiff, and fraudulently omitted to make proper charges against himself in his settlements with the county court. The defendant denied every allegation of fraud and insisted that his settlements were conclusive on the plaintiff. He also set up a settlement he had made with the plaintiff, and relied on the statute of limitations. The suit was commenced under the act of 1849, and the case being tried without a jury, the facts were found by the court, on which the judgment was rendered.

There is some doubt whether the action is on the bond, or whether it is a proceeding to set aside the allowances and settlements in the county court and to surcharge and falsify the defendant’s accounts. If the suit is on the bond it can not be maintained, because it is not in the name of the state, (Sickles v. McManus, 26 Mo. 28,) and because in that form of action the settlements of the guardian are conclusive. (State, to use of Tourville, v. Roland, 23 Mo. 95.) But, treating it as of the nature of an equity proceeding to set aside the allowances and settlements in the county court on the ground that they were fraudulently procured, it would of course be necessary to establish by proof the charge of fraud in order to overcome the settlements which have the effect of judgments. (Jones v. Brinker, 20 Mo. 87.) The court finds that the settlements were not correct; that the defendant obtained allowances which he was not entitled to, and that he ought to be charged with items omitted in his settlements; but it is not found that the allowances or settlements were procured by fraud, and for that reason the judgment must be reversed.

The facts are not sufficiently set out in the record for us to determine whether the action is barred by limitation. It does not appear when the guardian made his final settlement, nor when the plaintiff became of full age. But it may be remarked that there is nothing in Mr. Pipkin’s testimony to establish the starting point for the running of the statute of limitations, for it is not seen that he made any discovery of fraud which the accounts in the clerk’s office would not have disclosed to the plaintiff if he had taken the pains to examine them.

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


author: Napton, Judge,

text:
    Hickman et al., Plaintiffs in Error, v. Kunkle, Defendant in Error.
    1. In suits in justices’ courts, as well as in suits in the superior courts, the defendant, in order to impose upon the plaintiff the necessity of proving the execution of an instrument sued on, must deny its execution under oath.
    2. A promissory note given by one partner in the name of the firm is binding, prima facie, upon all the partners; if the note he given for the individual debt of the partner executing the same, or for an indebtedness created in relation to a matter known to be foreign to the business of the partnership, the partnership is not bound. It devolves upon the partners, in order to escape liability, to show these facts.

      Appeal from Hannibal Court of Common Pleas.

      Porter and Harrison, for plaintiffs in error.
    I. Prima facie the note was binding on the partnership. The burden of showing a want of authority rests upon tlio defendant. (Story on Part. § 133.) The execution of the note by Webb in the name of the firm was admitted.
   Napton, Judge,

delivered the opinion of the court.

This action was originally before the recorder of Hannibal, who was acting as a justice of the peace, but it was subsequently tried in the Hannibal court of common pleas. The suit was upon a negotiable promissory note for seventy-one dollars and forty-two cents, executed, in the name of Webb & Kunlde, partners in a livery stable, to the plaintiffs, who dealt in stoves, tin-ware, &c. Upon the trial, the plaintiffs offered to read the note in evidence, but the defendant stated, ore terms, that the note was executed by Webb on his own private account and without the knowledge or consent of defendant, and he objected to reading the note without proof that he (defendant) had assented to the execution of it, or without proof that it was given in a transaction embraced within the scope of the partnership business. No such proof being in the first instance proposed by the plaintiff, the note was excluded and the plaintiff took a nonsuit, and after-wards moved to set aside the same; upon overruling which the case is brought here.

Although our statute, which requires a defendant in the superior courts to deny the execution of an instrument sued on by answer or plea sworn to in order to impose upon the plaintiff the necessity of proving its execution, has never been expressly enacted in reference to proceedings before justices, yet, as early as 1826, the court held that a note or bond sued on and filed before a justice could be read in evidence without proof of its execution unless the defendant would declare, ore terms, that it was not his deed, and would swear to the fact; (Kennerly v. Weed, 1 Mo. 673;) and such is believed to have been the practice ever since.

In relation to the principle or rule upon which the plaintiffs seem to have been nonsuited, the court of common pleas was also in error. Prima facie, a note given by a partner in the name of the firm binds all the parners. If the note be given for a preexisting debt [of one partner], the partnership is not liable unless the creditor shows that it was expressly or impliedly sanctioned by the firm. The reason for this is, that the very nature of the transaction is such as to show prima facie a fraud in the creditor. He can not be ignorant that the debt is an individual one, and if he expects to hold the partnership responsible, he must show facts or circumstances to remove the imputation which the very character of the transaction throws upon him. Upon the same principle and for the same reason, where there is no preexisting debt, but the creditor takes from an individual partner a note for an indebtedness created in relation to a matter totally foreign to the business of the partnership, the partnership is not bound; for if the transaction be outside of the usual course of the partnership business, that circumstance alone is sufficient to advise the creditor that the liability is an individual and not a partnership debt, or, at all events, to put him on inquiry. But in this class of cases, as the question whether a transaction is outside of the partnership business or not is necessarily a question of fact, and a question which the defendant partners can easily answer by proof, and upon which their knowledge is necessarily more complete than the information of others, in cases of doubt it devolves upon them to show that the debt was contracted in a transaction entirely foreign to their business. Prima facie the debt is a partnership debt, as the partnership name is signed; and, although it is signed by one partner in the name of the firm, yet this is a general power he has in relation to affairs properly connected with or growing out of the partnership business, and it will so be presumed to be 'until the contrary be shown. If, for instance, as in this case, an article of commerce' is sold to a member of a partnership, who gives the partnership note therefor, unless the very nature of the trade necessarily indicates that it can have no reference at all to the business of the partnership, it can not with any propriety be said that the creditor has constructive notice that he is dealing with the partner on his individual account, and the liability of the firm in all these cases depends altogether upon the fact of notice, express or implied.

This matter is clearly explained by Chancellor Kent in a few words: “ All partnerships are more or less limited. There is none that embraces, at the same time, every branch of business ; and when a person deals with one of the partners in a matter not within the scope of the partnership, the intendment of the law will be, unless there be circumstances or proof in the case to destroy the presumption, that he deals with him on his private account, notwithstanding the partnership name be assumed. The conclusion is otherwise if the subject matter of the contract was consistent with the partnership business ; and the defendant would be bound to show that the contract was out of the course of the partnership dealings.” (3 Kent, C. § 43.) Whether the subject matter of the contract is consistent with the partnership business is a question of fact, and if it be doubtful, it lies upon the partners to show first how it is. The intendment of law is that the note was given in the regular course of dealing, until the contrary is shown by the defendant. (Doly v. Bates, 11 Johns. 544.)

It is impossible to draw the conclusion in this case, from the mere facts stated in the bill of exceptions, that the purchase for which the note sued on was given necessarily was outside of the business in which the defendant was engaged. A purchase of fifty or a hundred stoves, or a large stock of miscellaneous tin-ware, would no doubt very clearly be outside of the business of livery stable keeping, in which defendant was engaged; but a livery stable might need one or more stoves for heating the offices usually connected with such establishments, and tin-ware might be necessary or useful about the building, for aught that appears. The true character of the transaction is not explained, and it was the business of the defendant to do so in the first instance, and not of the plaintiffs.

Judgment reversed and remanded;

Judge Richardson concurring. Judge Scott absent.


text:
    McDonald, Plaintiff in Error, v. Schneider, Defendant in Errror.
    1. Under the act of December 22, 1824, (R. C. 1825, p. 211,) the trustees of the town of St. Charles had power to lease the common of the town.
    2. It is not sufficient to invalidate such a lease that it was executed in the name of the trustees of the town and not in the name of “ The inhabitants of the town of St. Charles” — the corporate name of the town.
    3. In order that a defendant may defeat a recovery in an action of ejectment by showing an outstanding title in a third person, such outstanding title so set up must be a present, subsisting and operative title, such an one as the owner thereof could recover on if he were asserting it in an action.
    4. Possession of land is presumed to be in the true owner. Being presumed to be in the possession of the whole, another entering upon him, whether under color of title or not, can acquire title as against him, under the statute of limitations, only to such portion as is actually occupied by him for twenty years adversely to the true ewner; he is confined to his actual adverse possession, and the burden is on him to show such actual adverse possession and its extent.

      Error to St. Charles Circuit Court.

    This was an action of ejectment to recover a portion of lot numbered 24, in block 8, in St. Charles common. The plaintiff claimed, under the town of St. Charles, a leasehold interest in the premises in controversy for 999 years. In support of his title — after showing that the land sought to be recovered was embraced within the United States survey, approved in 1854, of the outboundary lines of the town of St. Charles, including the common confirmed to said town by the act of Congress of June 13, 1812 — adduced in evidence, against the objection of defendant, a lease for 999 years, dated June 18, 1831, to one Wardlaw. This deed of lease is executed in the name of the trustees of the town of St. Charles, and is signed by the clerk of the board of trustees, and has the corporate seal attached by him. It seems to have been first issued in favor of one James B. Bradley, whose name appears to have been afterwards obliterated, and the llame of Wardlaw to have been substituted under an order of the board of trustees to that effect. On the 19th of September, 1834, said Wardlaw assigned said lease to Pleasant Gordon, who assigned the same to one Orrick, who made an assignment to the plaintiff. On the 22d of March, 1839, the board of trustees, by a deed of lease executed in the same manner as the first, again leased said lot to plaintiff. Plaintiff and those under whom he claims have paid the rent reserved.
    The defendant claims title in right of his wife to the premises in controversy as being a portion of the north-east fractional quarter of section four, township 46 north, range 4 east. This fractional quarter section overlaps in part the south-west corner of the common of St. Charles. It was entered in the office of the register April 30, 1832. The patent is dated September 2, 1835. The evidence showed that plaintiff and those under whom he claims had been in possession of lot No. 24 from the date of the lease to Ward-law, and that defendant had been in possession of fractional quarter section four from about the time of the entry thereof ; but the testimony with respect to the actual occupancy of the overlapping portions of the two tracts was conflicting. The testimony showed that Bradley, soon after, the date of the deed of June 18,1831, left St. Charles, and that he never took possession of the said lot No. 24.
    Numerous instructions were given and refused; the following embrace those referred to in the opinion of the court, which were given at the instance of the defendant: “ 2. The jury are also instructed that if they believe from the evidence in the cause that the lease aforesaid [that of June 18, 1831,] was executed and delivered to the said James B. Bradley by the board of trustees of the town of St. Charles, the legal effect of said lease was to divest, for the period of time mentioned in said lease, whatever title the town of St. Charles had in and to the premises, therein mentioned, and that the title thus divested could not, during the-term of said lease, be revested in said corporation, except by a re-conveyance in writing by said Bradley, or his assignee, to said corporation, or by a judicial decree of some court of competent jurisdiction; and there is no legal evidence either of such reconveyance or decree. 3. If the jury find from the evidence in the cause that Augusta Boschet, alias Lively, on the 30th day of April, 1832, entered at the land office of the ■United States, at St. Louis, the north-east fractional quarter of section 4, township 46 north, range 4 east; that the defendant afterwards, in the year 1832, married said Augusta, and in virtue of said entry at the land office aforesaid, entered in said year upon a part of the said fractional quarter section, claiming title to the whole, erected a dwelling-house thereon, and cleared, put under fence and cultivated a part thereof, and openly resided upon the same, and openly cultivated parts thereof continuously for the period of twenty years next before the institution of this suit; and the jury shall also find from the evidence that the land in controversy is included within the limits of said fractional quarter section, they will render their verdict for the defendant for such parts of said quarter section now in dispute as the said defendant held and occupied as aforesaid, unless they shall also find from the evidence that the land in controversy was, within the said twenty years, in the actual open adverse possession of another. 4. The jury are further instructed that if they find from the evidence in the cause that the lease bearing date June 18,1831, read in evidence, was by the board of trustees of the town of St. Charles executed and delivered to said James B. Bradley by the said board or their agent; and afterwards, during the continuance of the term specified in said lease, the said board of trustees ordered their clerk to erase the name of said Bradley from said lease and insert the name of Hugh H. Wardlaw instead, and their clerk obeyed said order, and made the erasure in the absence of said Bradley, and without his knowledge; and the said board of trustees caused the said lease, after the said erasure, to bo delivered to the said Wardlaw, such alteration and delivery was an illegal and unauthorized spoliation of the lease, which did not destroy or affect the right of Bradley to the lease as a muniment of his title to the premises conveyed by it, nor vest in said Wardlaw any title to said premises, nor enable him to assign the same to Gordon; and in case the jury find the fact of erasure as specified in this instruction, they will render a verdict for the defendant. 5. The defendant asks the court to instruct the jury that upon the case made by the plaintiff, he can not recover in this action.”
    The plaintiff took a nonsuit with leave, &c.

      Wells and Krekel, for plaintiff in error.
    I. The trustees had power to lease the commons. (R. C. 1825, p. 766 ; 2 Terr. Laws, 296, 410; Sess. Acts, 1837, p. 306.) Misnomer does not invalidate. (Grant on Corp. 65; Angelí & Ames on Oorp. p. 78,194, 584; 2 Kent Com. 292; 19 Mo. 613.) The corporation has recognized the validity of the lease by renewing it and collecting rents.
    II. Plaintiff's entering on part of lot 24 in 1833 stopped the statute from running. (5 Litt. 89, 90; 4 Barr, 254.)-The defendant is limited to the possession he had twenty years prior to the bringing of this suit. (5 Dana, 65; T Hill, 135; 2 Harr. & Jo. 380 ; 10 Mo. 769; 20 Penn. 32; 2 Bibb, 508 ; Angelí on Limitation, 432, 443.) The defendant must show the extent and boundary of his possessio^i.
    III. Bradley could not recover on the title set up as ouG standing in him. It was barred by the statute of 'limita-, tions. It is not a living subsisting title. (1 Mary. 234;'% Har. & Jo. 125 ; 1 Swan, 519; 3 Johns. 386 ; 18 Mo. 522 ; 6 Pet. 302; 9 Yerg. 325 ; 4 Johns. 202.) The instructions given for the defendant were erroneous.

      U. Wright, for defendant in error.
    I. Plaintiff’s case failed upon his own showing. The proof was that the title was in another. (R. C. 806 ; 19 Mo. 132 ; 1 Parsons on Contr. 118; Angelí & Ames on Corp. 293 ; 12 Wheat. 64; 6 Peters, 452; Comb’s case, 9 Co. 76, b.; 11 Mo. 209; 4 Bac. Abr. 140; 16 Mo. 42; 2 Cush. 337; Story on Agency, 147 ; 1 Amer. Lea. Cas. 597.)
   Scott, Judge,

delivered the opinion of the coiirt.

We do not see the force of the objections to the deed of of lease made by the trustees of the town of St. Charles to Wardlaw. It is under the seal of the corporation. The common seal is proved. It is also shown that it was affixed by the clerk of the board of trustees, who was authorized thereunto by ordinance. The attesting clause is nearly in the language required by law. (Angell & Ames, § 225.) The town of St. Charles was incorporated by an order of the county court of the county of St. Charles in 1830, in pursuance to the provisions of the act of the legislature approved January 26th, 1825. Under this act, and the act of December 22d, 1824, concerning commons, it was supposed that the town had authority to lease her commons, and she did actually lease portions of them. Being in the exercise of this right, when the act of 28th December, 1832, respecting the commons of St. Charles, and the act of 27th January, 1837, incorporating the town, were passed, the two first sections of the former and the 9th section of the latter of these acts must be regarded as a recognition of the validity of the powers previously exercised in relation to the commons. But where is the utility of such an objection, as the town recognizes the validity of the leases she has granted ? At most, it could only render a change in the style of the suit necessary. St. Charles could sue in her own name. Those going in under void leases would be regarded as tenants at will. Their occupation or possession would enure to the benefit of the town on a question as to the propriety of the application of the statute of limitations. (Murray v. Armstrong, 11 Mo. 209.)

We are told that as early as the time of Lord Coke an attempt by a corporation to set aside a grant for a misnomer was severely censured. The act under which St. Charles was incorporated required that the town incorporated should be a body politic and corporate by the name and style of “ The inhabitants of the town of-,” naming the town to which the charter was granted. The lease is in the name of the trustees of the town of St. Charles, a misnomer which the officer very naturally made ; as it will be seen, from the act in relation to towns and the several acts before referred to, that, when any thing is to be done, the statute requires that .the trustees should do it. The rule with regard to the misnomer of individuals does not apply to corporations. The trustees were the recognized agents of the inhabitants. To them was confided all the police power of the body politic. When they acted as such, it must have been for the inhabitants of the town. The transposition or omission of some of the words of the name of a corporation or the interpolation of others does not necessarily make a difference in their sense. (10 N. H. 123; 32 Eng. Law & Eq. 589; Angell & Ames on Corp. § 99.)

The second and two last instructions given for the defendant were erroneous, under the facts of the case. The deed to Bradley was upwards of twenty years old. There had been no possession under it for more than twenty years by Bradley or those claiming under him. It is a well established principle that an outstanding title in a third person, set up as a bar to a recovery in an action of ejectment, must be such a one as the owner of that title himself could recover on if he were asserting it in an action. It must be a present, subsisting and operative title. Now it is obvious that the title of Bradley, set up in this action, was not such a one. Prima facie, he could not have maintained a suit upon it. Why then should a stranger be permitted to use it as a defence in an action of ejectment ? There were no circumstances in evidence which relieved it from the objections with which it was encountered. (Jackson v. Hudson, 3 John. 375; Greenleaf’s Lessee v. Birth, 6 Pet. 302; Peck v. Carmichael, 9 Yerg. 325.) Moreover, there were facts from which a jury might have found a surrender or reconveyance of the demised premises. The fact that the deed of Bradley was in the hands of the grantor, his long continued absence and silence, the little value of the lease at the time, were circumstances of sufficient weight to have warranted such a verdict. Deeds may be presumed from length of time alone, nothing counteracting such a presumption. (1 Cow. & H. Notes, p. 355.)

Although it is a rule that he who is in possession of a part' of a tract of land, having title thereto, is adjudged by the law to be in the possession of the whole of it; and, although it is a rule that where possesssion is mixed, or where two persons possess adjoining tracts and their possession conflicts or interferes the one with the other, the legal possession is adjudged to be in him who has the better title — for, as both can not be seized, the possession follows the title — yet if ho who has the inferior title enters upon the interference and actually occupies it adversely to him who has the better title for a sufficient length of time, he will acquire a title against the true owner by limitation as to the portion actually occupied, although the true owner may be in the actual possession of that portion of his tract which is not covered by the interference. (Barr v. Gratz, 4 Wheat. 213; Hall v. Powell, 4 Serg. & R. 456; Angell on Limitations, 432, 442; McGowan v. Crooks, 5 Dana, 65; Burns v. Smith, 2 Serg. & R. 436.) Had the case of Altemus v. Long, 4 Barr, 254, intended to overturn all the previous cases on the subject, they would certainly have been referred to. The case in Barr seems to turn on the effect of an entry at common law by the true owner on one not having a title. So the rule that possession of part is possession of the whole, is only applicable where there is no actual adverse occupancy.

If the defendant was in the actual adverse occupancy of any portion of the interference for a length of time sufficient to bar the plaintiff’s action, he can not now be evicted by him. But in such case he can only defend for the portion which he shows he has actually occupied for twenty years. The rule that possession of part, claiming the whole, under a color of title, is possession of the whole, can not avail him, as the plaintiff, having the legal title to the whole, is deemed to be in possession of the whole, and the defendant can only prescribe for that part which he shows to have been actually occupied for twenty years adversely to -the plaintiff. The burden is on him and he is confined to his actual adverse possession, which must have been enjoyed for a time sufficient to create a bar of the plaintiff’s right. The plaintiff’s claim consists of a portion of the commons of St. Charles, which were confirmed by the act of 13th June, 1812. The defendant’s title is a subsequent entry with the United States register and receiver and a patent thereon. The confirmation being the elder title, its superiority is admitted by the defendant.

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