author: Scott, Judgé,

text:
    Richardson’s Missouri Express Co., Defendant in Error, v. P. & B. Cunningham, Plaintiffs in Error.
    1. The fact that an express company, receiving goods from a vendor to he transported and delivered to a vendee upon the payment of the price, renders itself liable to respond to the vendor for the price in consequence of its delivering the goods to the vendee without the payment of the price, will not entitle it to sue the vendee by attachment under subdivision 13 of section 1 of the attachment act; (R. C. 1855, p. 239.)

      Error to Cooper Court of Common Pleas.

    This was a suit commerced before a justice of the peace by attachment, on the 4th of February, 1857. The following is the statement of the cause of action:

      “ St. Louis, March 28th, 1856. Messrs. P. & B. Cunningham to Richardson’s Missouri Express Co., Dr. To bill for collection from Ubsdell, Pierson & Co., on one bale goods shipped to Jefferson city this date, and erroneously delivered by our agents, Maus & Loliman, without collecting as receipted for to U., P. & Co., 183.90 principal, $4.25 interest — total, $87.15.”
    The affidavit upon which the attachment was based was made under the thirteenth specification or subdivision of section 1st of the attachment act. It set forth that the demand of plaintiff, Richardson’s Missouri Express Co., against the defendants, was for the “ price of a bale of goods shipped to Jefferson city on the 28th of March, 1856, and there delivered by plaintiff’s agents, Maus & Lohman, to defendants, without the defendants paying to said agents the price aforesaid of the same.”
    The writ of attachment was levied on goods, some of which belonged to Patrick and some to Barnard Cunningham. Upon the trial of the issue raised by a plea in the nature of a plea in abatement, the court, at the instance of the plaintiff, gave the following instruction: “ If the jury believe from the evidence that the goods obtained by defendant, B. Cunningham, at Jefferson city, were transported from the city of St. Louis to that point by the. Missouri Expre'ss Co., from the house of Ubsdell, Pierson & Co., and that the price of said goods, together with price also for transportation, was to have been paid by defendant on delivery of same to them — that he obtained said goods without paying for the same or the charges thereon, and has not since paid, and that said Express Company have become liable to Ubsdell, Pierson & Co. for the said goods — then the jury must find for the plaintiff; provided they further find that P. Cunningham mixed his goods, which were attached, with said B. Cunningham’s, to defeat plaintiff in recovering his demand.”
    The court, of its own motion, gave the following instruction : “ 2. The court instructs the jury that if the defendants P. & B. Cunningham have mixed the goods attached with the fraudulent intent of preventing plaintiffs from making their debt out of B. Cunningham, the jury will find for the plaintiff.”
    The defendants asked the court to give the following instructions : “ 1. If the jury believe from the evidence that the goods in question were purchased of Ubsdell, Pierson & Co., and if the jury further find that there was no assignment of the indebtedness for said goods to plaintiffs, and of which assignment the defendants had notice, the jury will find for the defendants. 2. The jury are instructed that there is no evidence of any assignment from Ubsdell, Pierson & Co. to the plaintiffs of any indebtedness due Ubsdell, Pierson & Co. by defendants. 3. The jury are instructed that there is no evidence of a partnership between the defendants P. & B. Cunningham at the time of the purchase of the bale of goods in question. 4. Although the jury may find that there was a contract between Ubsdell, Pierson <fc Co. and plaintiffs to deliver the goods in question and to collect the costs and charges thereon, yet the jury must find for the defendants, unless there is evidence that the defendants were parties to «said contract. 5. If the jury believe from the evidence that ithe goods in question were originally purchased from Ubs-dell, Pierson & Co., and that they were delivered to the plaintiffs as common carriers for the purpose of being delivered to the defendants, and they were so delivered, the jury are instructed that the plaintiffs can not recover in this action, for any thing but the freight upon said goods. 6. The jury are instructed that if they find that the plaintiffs in this case were bailees of the goods in question, and as such delivered them to defendants, the plaintiffs can not recover in this action. 8. The jury are instructed that there is no evidence in this cause that the defendants or either of them ever agreed to pay the plaintiffs any thing on account of the goods in question.”
    Of these instructions asked by the defendants, the court gave the third. The jury found a verdict for the plaintiff.

      Draffen and Hewing, for plaintiffs in error.

      I. The defendant in error at the time of instituting this suit had no cause of action against the plaintiffs in error, or either of them.
    II. The facts in this case show that this case is not within the provisions of the attachment law. The 13th subdivision of the first section of the law of attachments (R. C. 1855) gives a vendor of goods a right, to sue the vendee for the price, where there is a contract between them that the ven-dee shall pay for the same upon delivery. The Express Company is not the vendor of the goods in question ; it was but a mere agent, for said goods were purchased by B. Cunningham from Ubsdell, Pierson & Co.; and therefore no privity of contract exists between the company and the plaintiffs in error, or either of them. If the Express Company agreed with Ubsdell, Pierson & Co. to collect the price of the goods from B. Cunningham upon their arrival at Jefferson city and failed to do so, this would not even give the company any right of action against B. Cunningham until after it paid the price of the goods to Ubsdell, Pierson & Co., and the proper form of action then would be for money paid. (See Smith on Cont. 107-110.)
    III. The goods, for the price of which this suit was brought, were sold to B. Cunningham by Ubsdell, Pierson & Co. The goods that were attached belonged in part to P. Cunningham and in part to B. Cunningham, and were entirely a different lot of goods, and it was the mixing of these goods that were attached that the first two instructions refer to. Now if the Express Company ever had any cause of action against B. Cunningham, the same existed almost a year before Patrick Cunningham shipped his goods, and it is difficult to see how the mere shipment of his goods .upon the same conveyance with B. Cunningham’s goods can give the Express Company a right to sue him for a debt that he had no part or lot in contracting. There is no evidence that Patrick Cunningham knew that Barnard Cunningham owed any person for the goods in question. There is no evidence of any fraud on his part, either as against the Express Company or any other persons. The instructions therefore on this point are erroneous, and are not warranted by the law of the land or the evidence in the case.
    IY. The Missouri Express Company had no right to sue Barnard Cunningham, much less Patrick, before paying for the goods to Ubsdell, Pierson & Co.; for the case is like that of a security paying the debt of his principal; the payment is the consideration for the promise, and it is absolutely necessary to show payment before an action will lie. (1 Smith’s L. Cas. 70-73 ; Toussaint v. Martinant, 2 T. R. 100 ; Exall v. Partridge, 8 T. R. 308; 3 Metcalf, 169.)

      Stephens & Vest, for defendant in error.
    I. B. Cunningham, having by his wrongful act involved the Express Company in a legal obligation to Ubsdell, Pierson & Co. for his own debt to that house, the law implies a contract upon his part to pay the Express Company the amount for which they have so become liable. (Chitty on Cont. 24; 1 Story on Cont. 579; 1 Parsons on Cont. 392-4.)
    II. P. Cunningham, having fraudulently mixed his goods with those of his brother for the purpose of defeating a recovery of this debt, became equally liable with him to the plaintiff.
    III. The plaintiffs in error having, by their own wrongful acts, become the debtors of the Express Company, instead of Ubsdell, Pierson & Co., the company now have thé same rights and remedies which Ubsdell, Pierson & Go. originally had. (Haven v. Foley & Papin, 19 Mo. 632.)
   Scott, Judgé,

delivered the opinion of the court.

This being a proceeding under the 13th subdivision of the 1st section of the act providing for suits by attachment, it is necessary that the plaintiff should show itself within the purview of the statute. The words are, “ where the debtor has failed to pay the price or value of any article or thing delivered which by contract he was bound to pay upon the delivery.” (R. C. 1855, p. 239.) We do not see how, within the meaning of tlie act, the Express Company can be substituted for the vendors of the goods. The question is not whether the company may not sue, but whether it is the party to whom the law has given the remedy by attachment. We do not see that Ubsdell, Pierson & Co. have, by any act of theirs, assigned the contract to the Express Company, even if it were competent for them so to do with the view of entitling it to the remedy by attachment.

We do not know on what principle the instruction given against P. Cunningham can be sustained. There is not the least evidence of a partnership between him and B. Cunningham at the time the goods were sold for which this suit is brought. If, as the instruction assumes, he did mix his goods, which were attached, with B. Cunningham’s, to defeat plaintiff in recovering his demand, we do not know on what principle such conduct woiild have rendered him liable to an action which had accrued a long time previously. Mixing his goods fraudulently with those of another may have affected his right to them, but we do not see how it subjected him to a suit on a demand due a long time before there was any mingling of the goods.

Judgment reversed, and judgment for defendants ;

Judge Ryland concurring; Judge Leonard absent.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Stacker v. Cooper Circuit Court.
    1. Where a judgment is regularly rendered, it can not he set aside at a subsequent term of the court; where however it is irregular, the court may at a subsequent term correct the irregularity.
    2. After an order of reference in a cause is made, and while it is still standing unexecuted and in force, final judgment in the cause should riot be rendered ; if so rendered, the court may, at a subsequent term, recall the same and set it aside.
    Application for a mandamus. In his application to the Supreme Court for a mandamus, the applicant, George Stacker, sets forth that he instituted a suit upon an account before a justice of the peace against one David Andrews ; that he recovered judgment against the defendant before the justice ; that the defendant appealed to the circuit court of Cooper county; that at the March term, 1855, of said circuit court, the cause was referred, by consent of parties, to Isaac Lion-berger, and was continued for his report until the next term of said court; that said Lionberger did not make any report at the next September term of said court in accordance with said order of reference; that at the March term, 1856, the judgment of the justice of the peace was, on motion of plaintiff, affirmed, because the appellant (Andrews) had failed to prosecute his appeal according to law, and judgment was rendered by the circuit court against said Andrews and Jos. L. Stephens, his security in the appeal bond; that after-wards, at the September term, 1856, the said judgment was, on motion of Andrews, set aside, and an execution issued thereon quashed; that at the March term, 1857, of said circuit court, 1857, the plaintiff again moved the court to affirm the judgment of the justice of the peace for the reason that the appellant had failed to prosecute his appeal according to law, which motion was overruled ; that the court also overruled a motion for an order to issue an execution on the judgment rendered at the March term, 1856, and refused to order an execution to issue on said judgment. The petitioner prayed that a writ of mandamus might issue from the Supreme Court directed to the circuit court of Cooper county, commanding said court to issue an execution on the said judgment rendered in favor of plaintiff against the said Andrews at the March term, 1856, of said Cooper circuit court, or to show cause why the same has not been done by said court, and for such other and further relief, <fcc.
    Douglass, for petitioner.
    I. Mandamus is the proper remedy. (Boyce v. Smith, 16 Mo. 317.)
    II. The appellant, David Andrews, having failed to prosecute his appeal according to law, it was the duty of the circuit court to affirm the judgment of tbe justice of the peace. (R. 0. 1845, p. 244, § 16; Martin y. White, 11 Mo. 214 ; Starr v. Stewart, 18 Mo. 410.) The judgment of the circuit court affirming- the judgment of the justice of the peace was a final judgment rendered at the March term, 1856, and could not be set aside at the subsequent September term. (Hill y. City of St. Louis, 20 Mo. 584 ; Maids y. Watson, 13 Mo. 544.) If the court, at a subsequent term, had power to set aside the judgment rendered at a former term, it could only be done upon the ground that the judgment was irregular. (R. 0. 1845, p. 831,- § 8.) The alleged irregularity in this case is that the judgment was .affirmed without first setting aside the order of reference. But this order of reference was made at the March term, 1855, and required the referee to report at the following September term. The referee did not make any report in the time limited, because the appellant, whose duty it was under the law of 1849, which governed the case, failed to bring it up before him, and therefore the order of reference had expired by its own limitation, and it was not necessary formally to rescind it. The case was not then out on reference, and the judgment of affirmance was not rendered until one year after the order of reference was made, and six months after the order had expired. But if it was necessary to rescind such order before the judgment could be affirmed, then affirming the judgment did impliedly set aside the order of reference. (Lane y. Kingsberry, 11 Mo. 408.)
   Scott, Judge,

delivered the opinion of the court.

We see no ground in the present application for a writ of mandamus against the judge of the first judicial circuit. Regularly, after the term at which a final judgment is entered, it can not be affected by the court in which it is rendered. But if the judgment is irregular, such as might be recalled by writ of error coram voids, then the court may on motion correct the irregularity. Here the final judgment was entered when, the order of reference was still in force. It will be seen by turning to the act concerning arbitrations (R. C. 1845, p.-,) that the failure of the referees to report within the time prescribed by the order of reference does not vacate the order, or its force is not spent by the efflux of the time; but the court may by its rule compel the referees to proceed and discharge their duty.

Such a reference as was made in the case out of which this application arose, is not like an arbitration where arbitrators are by agreement selected and required to make their award within a given time. The- matter resting altogether on agreement, unless the arbitrators comply with the terms of the stipulation their act can not be binding. But referees appointed by the court are, like jurors, subject to its orders ; and if they fail to comply with an order of reference, the time of performance may be enlarged. After an order of reference has been made, until the order is disposed of no step can be taken in the cause towards obtaining a final judgment. It would be a surprise on a party to non pros, him for not prosecuting his suit when there was in existence an order for its reference. The party should either have taken steps to have the order of reference executed, or he should have moved to set it aside and have the cause placed on the docket. As the final judgment was irregularly entered, it was properly set aside. Writ refused;

Judge Ryland concurring ; Judge Leonard absent.


author: Ryland, Judge,

text:
    Atkison, Defendant in Error, v. Amick et al., Plaintiffs in Error.
    'l. In order that a constable may, under section 2 of article 7 of the act to provide for the organization, support and government of common schools, (Sess. Acts, 1853, p. 159, and K. C. 1855, p. 1139,) lawfully levy upon a delinquent’s goods and chattels, he must first demand the payment of the assessment.

      Error to Cooper Court of Common Pleas.

    This was a suit originally commenced beíjpre a justice of the peace — from whose court the cause was taken by appeal to the Cooper court of common pleas — against one Amick, a deputy constable, and S. D. Smith, one of the trustees of school district No. 5, to recover damages for an alleged illegal levy upon and sale by said Amick, under a warrant issued by the trustees of said district, of a quantity of oats belonging to plaintiff. Defendant justified the alleged wrongful seizure and sale under said warrant. There was evidence showing that the constable, Stoneman, had not made a demand of the plaintiff of the school tax assessed upon him; and there was no evidence showing that Amick, the depiity constable, had made such a demand. The court rendered judgment in favor of plaintiff against Amick for $21.87.

      Douglass and Hayden, for plaintiff in error.
    I. The case is governed by the school law of 1853. The school district was established in 1849. . Under the law of 1853 it remained as thus established. (See Sess. Acts, 1853, p. 159 ; School Law, art. 4, § 1.) There was no irregularity in its organization; but if there had, been, it was still a district de facto, and its validity can not be questioned in a collateral proceeding. (State v. Rich, 20 Mo. 393; Sayre v. Tompkins, 23 Mo. 443 ; State v. Yoi'k, 22 Mo. 462 ; McNair v. Biddle, 8 Mo. 257; Reed v. The Heirs of Austin, 9 Mo. 722.) The trustees had power to assess the taxes (Sess. Acts, 1853, p. 161), and to issue their warrant, and to renew the warrant.
    . II. The assessment of the tax against the plaintiff, and the issuing of the warrant to the constable for the collection thereof, and the renewal of the warrant, having all been done according to law, the only remaining question in the case is in regard to the demand mentioned in the second section of art. 7 of the school law of 1853. (Sess. Acts, 1853, p. 162.) If it is necessary for the constable to make this demand before he is authorized to sell, then, in the absence of any evidence to the contrary, the law will presume that he did make such demand. (1 Greenl. Ev. § 40.) Stoneman, it is true, did not make any demand, but he is not a party to the suit. There is no evidence that Amick did not make a demand. It would be unreasonable to require an officer, in every case, to prove that he had done his duty, and, in many cases, impossible for him to do so. In the absence of proof to the contrary, the law presumes he did his duty, and in this case will presume he made the demand.
    III. But the 2d section of art. 7 of the school law of 1853 is merely directory, and therefore a failure to make the demand works no invalidity of the thing done. (1 Kent, Com. 465; Pond v. Negus, 3 Mass. 230; Sprague v. Bailey, 19 Pick. 436; Rector v. Hart, 8 Mo. 448; Whitney et al. v. Emmet et al. 1 Baldw. C. C. 316.)

      Stephens 8f Vest, for defendant in error.
    I. As the proceedings of the trustees were ex parte and summary, the law under which they were had must be strictly pursued ; and as they set up that law in this case as a defence to the action of Atkison, it devolves upon them to show that all the pre-requisites of the law were complied with before his property was sold. Although as a general rule it is true that public officers are presumed to have done their duty until the contrary is shown, still such proceedings as this sale — ex parte, summary and against common right— are exceptions, and in these it devolves upon the party shielding himself behind them to show that he has pursued the law strictly, and complied with all its requirements. (Sec Morton v. Reeds, 6 Mo. 64.)
    II. Amick had no right to sell any property of Atkison’s until after a demaqd; and as he has failed to show any demand made, but that in fact there was none on the part of the constable of the township of whom he was the deputy, he was then a trespasser in making the sale, and the same was void. Yet if the sale was not ipso facto void, still Atkison is entitled to damages. (Hobein v. Murphy, 20 Mo. 447; Hobein v. Drewell, 20 Mo. 450.)
   Ryland, Judge,

dolivored the opinion of the court.

The only point in this case necessary for our decision involves the authority of the constable to sell the plaintiff’s property. There is nothing in the record except this which requires any notice from this court. So far as regards the organization of the township and district, the election of trustees, and the assessment of taxes, and issuing of the warrant, and the renewal of the same, we pass over without comment, further than to say, in the whole case, so far as these matters are involved, there is nothing demanding any decision of this court on account of errors therein.

The 2d section of article 7 of the “ Act to provide for the organization, support and government of common schools in the state of Missouri,” approved February 24th, 1853, and which took effect from and after the first day of November, 1853, and the 2d section of art. 7 of the act on the same subject, approved December 12,1855, (R. C. 1855, p. 1439,) are the same, and as follows: “ In case any person refuses to pay his or her liabilities, under the provisions of the act, upon demand of the constable, he shall have power to levy on the goods and chattels of such delinquent, and sell the same in the same manner as provided for executions issued by justices of the peace.” This section gives the power to the constable to make the levy and to sell, and it is the only one that does give to him the power. Now it is manifest that the legislature did not confer this power to be exercised at the will of the constable ; he was authorized, empowered, in case any person refused to pay his liability under this act, upon demand of the constable, to levy and sell. He had no power to levy and sell without first demanding the amount assessed and mentioned in his warrant, and the party refusing to pay the liability. This section is not merely directory; it confers power only in certain events. When, therefore, the constable attempts to justify his act of levying and sale under the warrant of the trustees, he must go further than merely to show his warrant; he must prove that he made the demand contemplated by the statute, and the refusal or neglect of the person liable to pay the amount of his liability, or lie fails in his defence. The power of levying and selling a person’s property, when given by statute in certain events, or upon a certain state of facts, must be construed strictly; and the officer exercising this power must look to it that the events have happened, or the state of facts exists, otherwise he will. be liable. The judgment must be a frmed;

Judge Scott concurring.


author: Soott, Judge,

text:
    Smith’s Administrator, Defendant in Error, v. Rollins et al., Plaintiffs in Error.
    1. A sheriff made the following return of service of process : “I do hereby certify that I served the within petition and writ on the within named A. B. by delivering a copy to the wife of the said A. B., over sixteen years of age, on this,” &c. Held, that the return was defective in that it did not appear that the copy was delivered at tire usual place of abode of the defendant
    2. The fact that the defendant, A. B., when the cause was called for trial and he was called into court, appeared and objected to the court’s proceeding with the cause on the ground that he had not been served with process as required by law, is not such an appearance as would make a judgment by default against him regular.
    3. Where there is a defective service of- process upon one of several defendants, he is entitled to have a judgment by default against him and his co-defendants jointly set aside. Being an entire thing, it must be set aside as to all the defendants.

      Error to Moniteau Circuit Court.

    This was a suit against David E. G-. Rollins and others upon a promissory note for $250. The following is the return of the service of process by the sheriff: “ I do hereby certify that I served the within petition and writ on the within named David E. G-. Rollins, Alexander R. Nelson, Edwin H. Daggett and William McKissick, by delivering a copy to the said A. R. Nelson, E. H. Daggett and William McKissick on this 28th day of August, 1856, and by delivering a copy to the wife of the said D. E. G. Rollins, over sixteen years of age, on this 6th day of September, 1856, in Mo-niteau county. Given under my hand this 8th day of September, 1856. [Signed] Stephen Howard, sheriff Moniteau county, Mo.”
    At the return term, no answers having been filed in behalf of defendants, a judgment by default was rendered against them. A motion was made in behalf of Rollins to set aside this judgment by default on the ground' that there had been no legal service of process upon him, Rollins. The court overruled the motion. It appears from the bill of exceptions that “ on the trial of the above entitled cause, at the return term of the writ issued in said cause, when the cause was called for trial, the said defendant Rollins, being called into court, objected to -proceeding in said cause because he had not been served with process as 'required by law; but the court proceeded to render judgment by default in said cause ; and thereupon the said defendants filed a motion to set aside said judgment,” &c.

      Echvards, for plaintiffs in error.
    I. The return of the sheriff as to the service of the writ did not authorize the court to render judgment against Rollins, and the judgment, being against all the defendants jointly, is void as to all. The service on Rollins is by leaving a copy with his wife; where it was left the sheriff does not state. (See R. C. 1855, p. 1223, § 7.)

      Parsons, for defendant in error.
    I. The co-defendants of Rollins not having filed a motion to set aside the judgment rendered against them, the judgment of the court below must stand against them.
    II. The defendant Rollins was in0court at the time of the rendition of the judgment; for it appears by the record that after rendering judgment thereupon Rollins moved to set it aside on the same day and at the time it was entered, for the statement of his motion is a part of the judgment. He made no objections until after judgment rendered.
    III. Nothing appearing to show that any error was committed materially affecting the rights of the plaintiffs in error, the judgment ought not to be reversed.
   Soott, Judge,

delivered the opinion of the court.

The defendant Rollins being impleaded with others, a judgment by default was taken against him on a service of process which was in the words that follow: “ I do certify that I served the within petition and writ on the within named David E. G-. Rollins by delivering a copy to the wife of the said D. E. G-. Rollins, over sixteen years of age, on this 6th day of September, 1856, in Moniteau county.” The statute directs (R. 0. 1855, p. 1223) that one of the modes of service of a summons shall be by leaving a copy of the petition and writ at the usual place of abode of the defendant, with some white person of the family over the age of fifteen years. It will thus be seen, upon a comparison of the language of the return with that of the statute, that the return is defective in not stating that the copy was left at the usual place of abode of the defendant. This requirement of the law is essential to the validity of the service. A person may be a member of a family and yet a long time absent from the abode of that family, which might prevent the head of it from receiving the notice. Though the defendant was present in court, yet his appearance was not entered on record, and he had a right at the time to object to the judgment by default as he had not been served with process the length of time necessary to entitle the plaintiff to a judgment against him. The case of Whiting & Williams v. Budd, 5 Mo. 443, was correctly decided ; but the dictum as to the length of time that should intervene between the appearance and the entry of the judgment by default can hardly.be reconciled with the statute, which prescribed the notice a party should have before he should be required to plead an action.

As the judgment was irregularly entered, the defendant bad a right to have it set aside without the imposition of any terms. He was not in default — was- seeking no favor from the court; and nothing could be required of him as a condition to the setting aside of the judgment.

There is nothing in the objection that the motion was made in the name of Rollins alone, without the concurrence of the other defendants. This was at most a clerical error, if it was error at all, as the entry responding to the motion would have been in the name of all the defendants. A judgment being an entire thing, can not be reversed in part; but the the whole should be set aside where there is error or irregularity in any part of it. (Rush v. Rush, 19 Mo. 441.)

If the fact warranted such a course, it is strange the plaintiff did not call upon the sheriff and have him amend the return to the writ, which would have deprived the defendant of the benefit of his motion.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded;

Judge Leonard absent.


text:
    Folden, Respondent, v. Hendrick, Appellant.
    1. If a slave give a watch to his wife, who is owned by another master, a third person, who obtains possession of the watch wrongfully, will not be permitted to deny the validity of the transfer in a suit brought against him by the owner of the wife, to recover its value — the owner of the husband not objecting to the disposition made by his slave of the watch.
    2. In a suit to recover the value of property wrongfully converted, it is too late to object for the first time in the Supreme Court that no demand was made.
    3. The Supreme Court will not reverse a judgment for a refusal of a court to give an instruction to the effect that, " admitting all the testimony to be true, the plaintiff can not recover.”

      Appeal from Greene Circuit Court.

    This was a suit commenced before a justice of the peace to recover the value of a watch alleged to have been wrongfully taken from the possession of plaintiff. Upon the trial in the circuit court, to which the cause was taken by appeal, the plaintiff introduced the following testimony : One G. Philips, examined in behalf of plaintiff, testified, “ that some time before the commencement of the suit, in the spring of 1855, he, witness, as constable, had apprehended a negro man belonging to one Huralstou for supposed offences, and while the negro was in his custody a company purchased him for the purpose of carrying him off; witness understood from defendant that he went to the negro man’s wife, who belonged to plaintiff, to get the negro man’s clothes, and she gave them to him;. witness also understood from defendant that he got the watch from the possession of plaintiff — that is, defendant told him that the negro woman handed him the watch after giving him the clothes; she gave defendant the watch as the property of the negro man, and the defendant received the watch from the negro woman to be carried to the negro man. Witness said defendant took the watch and offered it to the negro man, saying he had a watch himself and his partner oirght to have one too, and asked the negro if he wanted one ; but the negro man did not take the watch, and the last witness saw of the watch it was in defendant’s possession. The negro woman was plaintiff’s house-keeper and servant, and wife of the negro man. Plaintiff also introduced one Woodward as a witness, who testified that he saw defendant offer the watch to the negro man, but the negro man did not receive it, and the last he saw of the watch it was in defendant’s possession. Witness said he saw that same watch, some time before that, in the possession of a young man, nephew of plaintiff, by the name of Stotts; that Stotts was offering to sell it, and claimed it as his own; thought the watch was worth from sixteen to eighteen dollars.” . The above was all the evidence introduced.
    The defendant asked the court to instruct the jury that, admitting all the testimony to be true, the plaintiff can not recover in this cause. The court refused so to instruct. The court instructed the jury “ that notwithstanding Hendricks got the watch from the negro woman of Folden, yet if they believe from the evidence that it was in Eolden’s possession, they ought to find for the plaintiff.” The court also, at the instance of the plaintiff, gaye the following instruction : “The possession of the watch by the negro woman is Folden’s possession, unless it had been proved that she got possession of the watch wrongfully.” The court refused the following instructions asked by defendant: “1. Although the watch was taken from the negro woman, Eolden’s slave, unless Eoi-den had possession the jury must find for the defendant; the negro’s possession is not of itself possession in Eolden. 2. Unless plaintiff has proved that Stotts placed the watch in the possession, the jury are bound to find the issues in favor of the defendant. 3. There is no evidence before the jury to prove that Stott placed the watch in Eolden’s possession.” The jury found for plaintiff.
    Morrow, for appellant.
    I. The instruction asked by the defendant at the close of plaintiff’s testimony ought to have been given. There is not a tittle of proof that the plaintiff ever owned or had possession or the right to the possession of the watch. On the contrary the proof shows, prima facie, title to the watch in Stotts. There was no demand and refusal. (2 J. J. Marsh. 86 ; 7 Dana, 248; Danley v. Rector, 5 Engl. 211.) The principle of the instruction in this case would give the owner of a negro’s wife the right to all the clothes, boots and blankets that the owner of the negro man might furnish him.
    II. The instructions asked by plaintiff ought not to have been given, and the instructions by the defendant ought to have been given. Although the possession of the slave may for some purposes be regarded as the possession of the master, yet it can not be said that such ■ possession is conclusive evidence of title, or even prima facie evidence of title, where the right to possession is in dispute. If the plaintiff had been indicted for larceny, would the possession of the watch by his slave be any evidence against him without other proof? The court bases the whole casé upon the fact, that the possession of the slave is the possession of the owner of the slave, and that bare possession is conclusive evidence of title. The first instruction given by the court for plaintiff refers a matter of law to the jury.

      Wright and Otter, for respondent.
    I. What is earned by the slave, or otherwise rightfully belongs to the slave, belongs to the master by the common law, the civil law, and the recognized rules of property in the slave-holding states. (Law of Slavery, 229.) A master may sue for what is due his slave, and he can claim the benefit of a lawful and voluntary engagement made in favor of his slave. (Livander’s heirs v. Ton et al. 8 Martin, 161; Law of Slavery, 268.) The slave, in acquiring property, acts in legal contemplation as the agent of the master. (Law of Slavery, 228 ; 1 Hill, 270.) It follows then as a consequence that the possession of the slave is the master’s possession. (Law of Slavery, 6.) The possession of personal property is evidence of ownership, nothing appearing to the contrary; consequently the instructions for plaintiff are correct.
   Scott, Judge,

delivered the opinion of the court.

There is no doubt of the principle that the property of the slave belongs to his master. Whatever a slave acquires a right to, the master may sue for and recover in his own name. If a thing belonging to a slave is stolen, it must be alleged in an indictment for the felony that it was the property of the master. But while this is certainly the law, if masters do not interfere with nor object to the disposition that their slaves may make of the property which they are willing should be owned by them, it is not for strangers to interfere and deny the validity of any transfer of his property which a slave may make. The watch being the property of the negro man, he gave it to his wife. What is more natural than that a man about to be separated from his wife, should be willing to give her a portion of the property he may have ? What possible inference can be drawn from the refusal of the man to receive the watch, but that it was his wish that his wife should have it ? The master of the slave not objecting to this disposition of the property, who else shall gainsay its validity ? These being the facts of the case, as may be inferred from what is stated in the record, it is clear that justice has been done by the judgment rendered in the court below. The wife has obtained what her husband gave her, or at least its equivalent.

This court is no place in which, for the first time, to make the objection of a want of demand. If the objection had been made in the court below, it might have been obviated. After a party has resisted a recovery against him in all the courts, from the lowest to the highest, it is with a bad grace that he appears in the court of the last resort, and for the first time makes the objection that there was no demand made of him before the institution of the suit. Such conduct looks very much like giving up the controversy.

As to the instruction refused at the close of the case, we are of opinion that it was a proper exercise of the discretion of the court to refuse it. The instruction was so general that it did not show on what point the party relied. If there was any fact not proved which was essential to a right of recovery, why was it not singled out and 'a direction prayed that the proof of such fact was necessary to entitle the plaintiff to a verdict ? With the statute before us, which enacts that no exception shall be taken on an appeal or writ of error to any proceeding in the circuit court, except such as shall have been expressly decided by such court, we will never reverse a judgment for the refusal of so general an instruction. Under such instructions the court below might have been of the opinion that one essential fact was not proved, while this court may come to the determination that the defect of proof was not in relation to that fact, but a different one ; or the court below may hold that a fact is necessary to be proved which, in the opinion of this court, is unnecessary, or that there is a variance between the proof and the petition. How, under such instructions, could this court ascertain the point decided by the court below ? Under such circumstances would not a reversal of the judgment be against the spirit of the act cited ? Would it be known that the point decided by the court below is the same as that decided by this court ? The law, in its anxiety to protect judgments from reversals, requires that the specific question decided below should be that on which the opinion of this court will turn; and if instructions so general in their character are countenanced, the statute will be entirely evaded. At an early day this court felt the embarrassment of instructions of so general a nature, and pointedly condemned them. (Williams v. Harrison, 8 Mo. 412.)

The second instruction asked by the defendant was intended, it is presumed, to raise a question of variance between the statement of the cause of action and the evidence. If the property was Folden’s, as the evidence conduced to show, it was not material from whom it was obtained. The allegation respecting Stotts’ possession must have been designed for its identification, and if it was otherwise sufficiently described, it was enough. This is is not a matter of contract. No form of pleading is required in justices’ courts. No statement of the cause of action is necessary, save that which the justice is required to enter on his docket. Statements, when filed, are often very inartificial, and should be favorably construed. There is nothing in the record showing that any question was raised as to the identity of the cause of action tried in the justice’s court with that tried in the circuit court. The cases of Link v. Vaughn, 17 Mo. 595, and Ferrara v. Beck, 19 Mo. 30, were actions in courts of record, and under the present practice act, which, by express provision, does not extend to justices’ courts except in relation to the matter of evidence.

Judge Ryland concurring,

judgment affirmed.


text:
    Crow, Defendant in Error, v. Harmon, Plaintiff in Error.
    1. An instrument in the following form — “I promise to pay G. W. Crow one hundred dollars if the M. T. Lewis county road is not opened and kept open along the creek where it is now located, or if said Crow should make null the present proceedings of the court and commissioners as already had and done by them. I also agree that if said rpad is opened and kept open that said Crow shall have all the damages that may ever be assessed me for the same. February 7, 1855. [Signed] Jacob Harmon” — is within section 1 of the act concerning bonds and notes, (K. C. 1845, p. 189,) and imports a consideration ; it is not champertous on its face.

      Error to Holt Circuit Court.

    This was a suit upon the following instrument in writing: “ I promise to pay G-. W. Crow one hundred dollars if the M. T. Lewis county road is not opened and kept open along the creek where it is now located, or if said Crow should make null the present proceedings of the court and commissioners as already had and done by them. I also agree that if sard road is opened and kept open that said Crow shall have all the damages that may ever be assessed me for the same-. This February 7, 1855. [Signed] Jacob Harmon.”
    The plaintiff in his petition set forth the execution by the defendant of the above instrument, and alleged further that “ the said road was not opened and kept open along the creek where it was located, but that the county court of Holt county, Missouri, has refused to open the same.”
    At the trial the plaintiff read in evidence the above instrument, and rested. The defendant then, to show that damages had been assessed to him on account of the opening through his land of the M. T. Lewis county road and the amount of damages assessed, offered in evidence the records of the proceedings of the Holt county court had June 4, 1856, as follows: “ Now here, in the matter of Martin T. Lewis and others — petition for county road — the court not deeming the road of sufficient utility to justify the payment of $285 — that being the amount of damages awarded to Jar-cob Harmon by a jury of six men — the court refuses to establish said road, and hereby rescinds a former order appointing Martin T. Lewis overseer on said road and ordering him to open the same.” The court, at the instance of plaintiff, rejected the transcript of said order. This was all the evidence .adduced. The court, at the instance of the plaintiff, insti'uct-ed the jury as follows : “ 1. The jury will find for plaintiff one hundred, dollars and interest thereon at'the rate of six per cent, interest per annum from thé timé the same was demanded. 2. The pleadings admit that such demand was made on the 22d day of October, 1855.” The court refused the following instructions asked by defendant: “1. Unless the jury believe from the evidence that said instrument of writing was executed on some good or valuable consideration, they will find for the defendant. 2. The agreement sued upon does not show any consideration, nor does it import one. The instrument of -writing sued on is void, being against the policy of the law.”

      Foster, Vories and Loan, for plaintiff in error.
    I. The instrument of writing is champertous, void and contrary to public policy.
    II. The instrument of writing sued on does not import a consideration and the petition fails to allege one. The plaintiff gave nothing for defendant’s undertaking; no services were contracted for, and, so far as the pleadings show, none were rendered; the plaintiff has been put to no loss, inconvenience or trouble ; nor has the defendant derived any advantage from the contract.

      Hall and Gardenhire, for defendant in error.
    I. We do not see how the instrument sued on can be champertous. It does not show that Crow supplied money to carry on any suit on condition of sharing in any land or other pr°Perly gained by it. (1 Bouv. Die. 218 ; 2 Parsons on Cont. 262 ; 1 Pick. 416 ; 5 John. Ch. 44.) It does show a promise in writing, signed by Iiarmon, to pay one hundred dollars if a certain road was not opened and kept open, or if Crow should make null certain proceedings of the court and commissioners. Such a promise is certainly, free from objection. The instrument also shows that if the road was opened and kept open, Crow was to hare all the damages assessed. Harmon certainly had the right to give Crow all the damages or none for his services, as he chose. But this last matter can not come up here; for the petition alleges that the road was not opened or kept open, and the answer not denying admitted it. It was upon this ground that the court below excluded defendant’s evidence showing that damages had been assessed.
    II. The instrument sued on imports a consideration. It is in writing, made and signed by Harmon, and contains a promise to pay Crow a sum of money therein mentioned. (1 R. C. 1855, p. 319, § 1; Capíes v. Branham, 20 Mo. 244.)
   Scott, Judge,

delivered the opinion of the court.

This was a suit on a promissory note, and the objections to a recovery were that the consideration was against public policy, being champertous, and that it was without consideration.

The first section of the act concerning bonds and notes (R. C. 1845, p. 189) provides that all notes in writing made and signed by any person or his agent, whereby he shall promise to pay to any other person or his order or unto bearer any sum of money or property therein mentioned, shall import a consideration and be due and payable as therein specified. The note importing of itself a consideration, the burden of proving a want of consideration was upon the defendant. No evidence was given by him showing a want of consideration for the note, and therefore his objection was properly disregarded.

As to the objection that the contract was champertous, it may be answered that there is nothing on the face of it showing that it is obnoxious to such an imputation, nor was there any evidence in support of it.

The defendant was not prejudiced by the refusal of the court to admit the record of the county court as evidence, as the effect of it was only to sustain the plaintiff’s case. Judgment affirmed;

Judge Ryland concurring; Judge Leonard absent.


text:
    The State, Appellant, v. Mitchell, Respondent.
    1. An indictment, founded on section 28 of article 8 of the act concerning crimes and punishments, (R. C. 1845, p. 404,) charging that the defendant did “wilfully and contemptuously disturb a congration of people met for religious worship,” &c., is had.

      Appeal from Laclede Circuit Court.

    William Mitchell was indicted, under section 28 of article 8 of the act of 1845, for disturbing religious worship. The indictment is as follows : “ The grand jurors for the state of Missouri, empannelled, charged and sworn to inquire for the county of Laclede aforesaid, upon their oath present that William Mitchell, late of said county, on the tenth day of August, in the year of our Lord 1854, at the county of La-clede aforesaid, did then and there wilfully and contemptuously disturb a congration of people met for religious worship by making then and there a noise, and by rude and indecent behavior and profane discourse within their place of worship, and so near to the same as to disturb the order and solemnity of the meeting, against the peace and dignity of the state.”
    This indictment was quashed on motion of defendant. The State appealed.

      JEwing, (attorney general,) for the State.

      S. W. Woods, for respondent.
    I. The indictment is bad for the reason that the language of the statute is not followed in describing the offence, in this that the word congration is not an English word. Records and proceedings should be in the English language. (R. C. 1855, chap. 47, § 84; State v. Jones, 20 Mo. 61.) It is double and uncertain. (State v. Jane, a slave, 3 Mo. 45.)
   Scott, Judge,

delivered the opinion of the court.

There is no policy in encouraging carelessness or laxity in criminal pleadings. When any departure from the required form is tolerated, it, instead of being regarded as a beacon to warn the pleader of danger, is instantly seized upon as a precedent and urged as a reason why there should be a greater relaxation of the rule requiring the observance of forms. In this way the courts will be led step by step to the subversion of all order in the administration of the criminal code. When a man is called upon to defend himself against the charge of having violated the law, it is not unreasonable that he should require the accusation against him to be in sensible language.

The 33d section of the act to establish courts of record and prescribe their powers and duties enacts that “ all writs, process, proceedings and records in any court shall be in the English language, (except that the proper and known names of process and technical words may be expressed in the language heretofore and now commonly used,) and shall be made out on paper or parchment in a fair, legible character, in words at length and not abbreviated; but such abbreviations as are commonly used in the English language may be used, and numbers may be expressed by Arabic figures, or Roman numerals, in the customary way.”

The letters composing “ congration” do not make an abbreviation commonly used in our language. Nor do they make an abbreviation which is commonly used for the word “ congregation.” If “ congration” is not an abbreviation, then it is no word at all known to our language. It is well settled that offences must be described in the language of the statute by which they are created. It is an absurdity to say that a man disturbed a “ congration” of people. It is, we conceive, no answer to the objection that we can conjecture what was intended by the pleader. The accused has a right to have the accusation preferred against him in legal language before he is called upon to plead to it, and there is no propriety in indulging circuit attorneys in such gross carelessness, who, so far from profiting by their past errors, would have them all precedents for still greater errors.

Judge Ryland concurring,

the judgment will be affirmed;

Judge Leonard absent.


text:
    Martindale, Respondent, v. Hudson, Appellant.
    1. Where the payes of a negotiable promissory note assigns the same, not for value, but fraudulently, with a view to prevent the maker from setting up by way of set-off a demand against the payee, the maker may in a suit against him by such assignee or endorser, plead the fraudulent assignment, and set-off such demand.

      Appeal from Barry Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      F. P. Wright, for appellant.
    I. The recovery against defendant as garnishee was a good bar to the action, and record should have been admitted in evidence. (Wolf v. Cozzens, 4 Mo. 431.) And so if the note had been settled upon transfer, such settlement was a good bar.
    ”11. The answer charges that the transfers were fraudulently made for the mere purpose of preventing an offset; such transfer, if so made, would not prevent defendant from availing himself of any defence he might have to the note. The evidence tended to prove such fraudulent transfer and was improperly excluded on that account.
    III. If any amendment to the answer was necessary, the court erred in refusing leave to amend.

      Cravens, for respondent.
    I. The circuit court was correct in sustaining the motion of plaintiff to strike out that part of defendant’s answer which avers that Thos. Martindale, the original holder of the note, was indebted to defendant upon settlement — the note being given for value received, negotiable and payable without defalcation or discount (R. C. p. 322) ; and also in refusing to let defendant amend a second time where the proposed amendment was a mere repetition of what bad been by the court stricken out.
    ■ II. The answers of defendant to interrogatories upon garnishment were properly excluded, because the answers of garnishees are not even conclusive against the party at whose instance they are summoned. The judgment upon the answer was all that could possibly be admitted. (R. C. p. 258.)
    III. The testimony of witness Logan, in regard to the calculations he had made for Thomas Martindale, the original holder of the note, and defendant, when they attempted to make a settlement, was rightly excluded, because the court had stricken out that part of defendant’s answer which alleged Thomas Martindale’s indebtedness to him upon settlement.
   Ryland, Judge,

delivered the opinion of the court.

This is a suit on a promissory note made by defendants, dated January 7,1856, payable to Thomas Martindale, ten months after date, for six hundred dollars, for value received. The plaintiff states that said Martindale, on the 19th of April, 1856, assigned by endorsement and delivered said note to one Charles O’Kelly. Plaintiff further states that said O’Kelly, on the 13th of September, 1856, assigned by endorsement and delivered said note to the said Thomas Mar-tindale. Plaintiff also further states that said Thomas Mar-tindale, on the 2d day of February, 1857, assigned by endorsement and delivered said note to the plaintiff; he asks for judgment, &c.

The defendants, Hudson and Culton, appeared and filed their answer, in which, after stating that they knew nothing about the first two assignments from Martindale to O’Kelly and from O’Kelly back again to Martindale, they deny expressly that the note was by said Thomas Martindale assigned to the plaintiff for value received; but state that the said note was assigned to the plaintiff to defraud the defendants and prevent the defendants from, pleading an offset to said note, and to defraud them. The defendants then set up in the answer the fact that they had been garnished on execution against said Thomas Martindale in favor of one Passing-ton Paclcwood, and that judgment had been rendered against them for all that they were owing on said note to said Mar-tindale, and referred to the interrogatories, answers and judgment in the circuit court of Barry county. They also state that they do not owe to the plaintiff the said sum of six hundred dollars, or any part thereof. They state that said Thomas Martindale, the original holder of said note, owes defendants, on settlement made before the assignment of said note to plaintiff on the 2d day of February, 1857, one hundred and forty-nine dollars, for which he asks judgment, with interest from the said settlement.

The plaintiff moved to strike out all that part of the defendants’ answer which alleges that Thomas Martindale, the original holder of the note, is indebted to defendants on settlement in the sum of one hundred and forty-nine dollars, because said demand could not be pleaded as a set-off against plaintiff in this cause and to said note. This motion the court sustained, struck out that part of the answer, and the defendants saved the point by bill of exceptions. The defendant offered to prove that a settlement was made between Martindale, the original holder of the note, and himself. The defendant Hudson offered to prove this, the plaintiff having dismissed the suit as to the other defendant, Culton, and it was then carried on against Hudson alone, who offered to prove the settlement and the indebtedness of Thomas Martin-dale to him; and that the said note sued on was taken into consideration at the time the calculations were made by the witness Logan between these parties. This evidence was rejected and the defendant saved the point. The defendant also offered to read the answer filed by him to the interrogatories asked by him on the garnishing process in favor of Packwood against defendant on tlie execution against Mar-tindale, tlie payee of tlie note. This was likewise refused by tlie court, and the point saved by defendant. Judgment was rendered against defendant on the verdict of the jury below. He moved to set aside the verdict and for a new trial, which being denied him, he brings the case here by appeal.

Prom the record it is manifest that this case was badly tried below; it is badly brought up here ; the record is carelessly made out; still we can see what was attempted to" be done in the lower court. The court below erred in striking out that part of defendant’s answer which stated and showed the indebtedness of Martindale to the defendant on settlement. The answer expressly denies that the note was assigned to plaintiff by Martindale for value ; it avers that the assignment was made in fraud to prevent the defendants from setting up the said Martindale’s indebtedness to them as a set-off against the note. It nowhere appears on the record what kind of a note this was — whether a negotiable note or a non-negotiable one. It is not 'set out in the record; but take it for granted it was a negotiable note, and still the fact alleged in the answer — that the assignment was not for value, hut was a fraudulent assignment, made covinously to hinder the defendant from setting up his demand against the holder and assignor, the original payee, and that he was indebted to the defendant — was a good defence to the action; and it was error to strike out that part of the answer setting up the indebtedness, leaving the statement as to the fraudulent assignment still remaining in the answer. In the case of Baker v. Brown, assignee, 10 Mo. 396, this court held that as between the original parties to a bond or note a set-off is allowed, although the bond or note be payable “ without defalcation or discountand that if such a note be fraudulently assigned, the defendant may plead such fraudulent assignment and set-off a demand against the payee. The decision in this case settles the main questions in the one now before us. The court erred in striking out the part of the defendant’s answer in relation to the indebtedness of the assignor and payee. It erred in rejecting the testimony of the witness about the settlement and indebtedness to defendant of the original payee of the note.

The record is so meager we can not tell what was done in relation to the judgment against the defendant as garnishee. It seems that defendant only offered to read his answers to the interrogatories. This was refused. It also appears that the judgment on the garnishing process was read. We shall say nothing on this point further than to say, it is the dirty of the party excepting to the rulings of the inferior court to have the points properly presented and properly saved, and not put this court to the trouble of trying to find out what was done by guessing at part, and supplying and modifying the rest. We can not see how much or what portions of the record in the garnishment case was offered to be read by defendant. He had better present his full record next time and save the point plainly, so that we can see what was offered and what was rejected. The judgment below is reversed;

Judge Scott concurring,

and the cause is remanded.


text:
    The State, Respondent, v. Ross, Appellant.
    1. An indictment charging that the defendant “ with force and arms, at &c„ upon the body of one E, J., then and there being, feloniously did make an assault, and then and there feloniously and forcibly did attempt to ravish and unlawfully and carnally know the said E. J. against her will, who was then and there a woman of the age of ten years and upwards, contrary,” &c., is bad under section 37 of article 2 of the act concerning crimes and punishments (R. C. 1845, p. 350,) in that it does not charge an assault with intent to ravish; it is also bad under section 1 of article 9 of said act.

      Appeal from Andrew Circuit Court.

      Loan and Hall, for appellant.
    I. The indictment (if framed on any section of the statute at all) was framed on the 38th section of article 2 of the act concerning crimes and punishments. (R. 0. 1855, p. 567.) It is not good under this section, because it does not cliarge the assault was made “ with intent to commit a rape.” This is the essence of the offence, and it was necessary to allege it in the indictment, and prove it on the trial.
    II. The indictment does not show such an attempt, which, had it been completed, would have amounted to rape. It charges that “ the said Emily Johnson was a woman of the age of ten years and upwards.” It ought to have charged that she was a “ female child under the age of twelve years,” or a “ woman of the age of twelve years or upwards.” It charges neither. These are the statute definitions of the persons upon whom a rape may be committed, and they can not be changed by pleading.
    Ewing, (attorney general,) for the State.
    I. The assault is charged, and the design, purpose or intent of the assault is averred as clearly as language could make it, by alleging an attempt to ravish. The averment that defendant did attempt to ravish, &c., shows not only quo animo the assault was made, but also some endeavor or effort towards accomplishing it. These words of the indictment, ex vi termini, import the intent with which the assault was made, namely, to commit the offence charged to have been attempted. There could have b.een no attempt to ravish without an intention to do it. The manner and means of the assault, or the manner of the attempt- to ravish, need not have been averred. If a word used in the indictment is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient. (Wharton O. L. 190; State v. Bullock, 13 Ala. 413; United States v. Bachelder, 2 Gall. 15 ; State v. Hickman, 3 Halst. 299.)
    II. The statute definitions of the persons upon whom a rape may be committed are “ any female child under the age of ten years,” or “ any woman of the age of ten years or upwards,” and the indictment follows the statute. (R. 0. 1845, art. 2, § 26, p. 348.)
   Ryland, Judge,

delivered the opinion of the court.

The defendant Ross was indicted at the May term of the circuit court of the county of Gentry, in the year 1856, for an assault and attempt to ravish one E. J. The defendant appeared to the indictment, filed his petition for a change of venue, which was allowed, and the venue was changed from Gentry circuit court to the circuit court of Andrew county. At the April term of the Andrew circuit court, 1857, the defendant moved the court to quash the indictment; this motion being overruled, he pleaded not guilty ; was tried and convicted ; the jury assessed his punishment to a fine of five hundred dollars and three months’ imprisonment in the county jail. The defendant filed his motion for a new trial, which was overruled; also filed his motion in arrest of judgment, which being overruled, he excepted, filed his bill of exceptions, and brings the case here by appeal.

The questions before us involve the sufficiency of the indictment, which, in substance, is as follows :

“ In the circuit court, May term, 1856 — county of Gentry, to-wit. The grand jurors of the state of Missouri, &c., upon their oath present, that George Ross, late of said county, on, &c., with force and arms, at, &c., upon the body of one Emily Johnson, then and there being, feloniously did make an assault, and then and there feloniously and forcibly did attempt to ravish and unlawfully and carnally know the said Emily Johnson, against her will, who was then and there a woman of the age of ten years and upwards, contrary,” &c.

The reasons assigned in the motion to arrest are, 1st, because the indictment does not describe any offence known to the law ; 2d, the indictment does not allege any intent to the assault therein set forth; 3d, said indictment does not charge that any act was done towards the commission of the offence therein described; 4th, because said indictment does not charge that defendant failed to perpetrate the offence therein described; 5th, said indictment does not follow the words oí the statute.

The indictment in this case is founded either on section 37 of article 2 of act concerning crimes and punishments, or on section 1 of article 9 of same act. (E. 0.1845, p. 350, 408.) The 37th section of article 2 declares that “ Every person who shall be convicted of an assault with intent to commit any robbery, rape, burglary, manslaughter or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished,” &c. Under this section it is necessary to aver the intent with which the assault was made; it is the intent which mainly constitutes the offence. It is a material and necessary part of the description of the offence ; and without the intent with which the assault was made be averred and laid in the indictment, it is not good and sufficient under this section. The indictment in this case does not charge that the assault was made with any intent. It charges that the defendant did feloniously make an assault, and that the defendant did feloniously and forcibly attempt to ravish and carnally know, &c.; but it does not charge that the defendant feloniously made the assault with intent to ravish and carnally know, &c. It -does not charge that the defendant made the assault feloniously, with intent to commit a rape, &c. The indictment leaves out an important ingredient necessary to make the assault constitute the offence in this section of the act. It is a necessary descriptive part of the offence. It becomes therefore material, and can not be dispensed with.

Although it is not in general necessary to an indictment for a statutable offence to follow the exact wording of the statute, and it is sufficient if the offence be set forth with substantial accuracy and certainty to a reasonable intendment, yet words which enter into the description of the offence and constitute the specific offence can not be dispensed with. Where they are descriptive of the offence, they must be used. The law in such cases allows of no substitute, because no other words are exactly descriptive of the offence. (2 G-all. 18.) Now it is necessary, under this 37th section, to aver the intention with which the assault was made. Words showing that intention are unimportant, for no particular words are used in this section; but the assault must be charged to have been made with intent to do the deed or act prohibited; otherwise the assault is not embraced within this section.

This offence is not included in the 1st section of the 9th article of the act, because that section embraces offences where no provision is made by law for the punishment of such attempts. This offence, if the indictment had properly charged it, could have been punished under section 37 of article 2.

Although this court overrules all mere technical defects, niceties which had grown to be a blemish and inconvenience in the law, in order that the great ends of society may not be defeated in the punishment of those who offend against its regulations, yet we can not disregard substantial defects. It appears strange to us why the circuit attorneys should so often leave out the descriptive words in the offences created by our statutes and resort to others. This defendant was convicted of an act which calls aloud for punishment, and it is with much reluctance that we feel compelled to send this case back. But we must look to the law and decide according to its mandates.

Judge Scott concurring,

the judgment will be reversed, and cause remanded.


text:
    Nelson, Plaintiff in Error, v. Johhson, Defendant in Error.
    1. In an action for the price of slaves sold, the defendant may recoup the damages sustained hy him by reason of a breach of warranty of the slaves.

      Error to Cooper Circuit Court.

    This was an action upon a promissory note for $300. The defendant set up in his answer that the consideration of the note had failed; that the note was given for part of the purchase money of two slaves sold by plaintiff to defendant; that the plaintiff had warranted the said slaves to be sound and healthy ; that they were not sound and healthy as warranted. The court, at the instance of the defendant, gave the following instruction to the jury : “ If the jury believe from the evidence that the note sued upon was for a balance of the purchase money of the slaves mentioned in the defendant’s answer, and that said slaves were warranted by plaintiff to be soun.d, and either of them was unsound at the time of the sale, then they must take the same into consideration, and abate the note accordingly, and if the slave was lessened in value to the amount of the note, they must find for the defendant.”

      Gardenhire and Morrow, for plaintiff in error.

      Adams, for defendant in error.
    I. A breach of warranty of soundness given on the sale of slaves is a good defence against a note for the purchase money, and may be set up, as it was in this case, by way of recoupment. It was the only defence, relied upon in the answer, and was properly presented by the evidence and the instruction given on the part of the defendant.
    II. The suggestion of surprise in the plaintiff’s motion and affidavit for a new trial was the merest pretence. The affi davit upon its face showed that he must have known what the defence was, although he may never have in fact read or heard the answer read. It sets up as an excuse his own negligence. The case had been in court for more than eighteen months, and the answer had been filed in the cause for eighteen mouths, and the cause had been continued by the plaintiff himself from term to term on account of the absence of witnesses, and yet witnesses were not-wanted for any other purpose than to rebut the proof of a warranty and its breach. Upon the trial the only evidence offered or given on either side was in relation to this issue alone, for there was no other issue in the cause. The plaintiff gave evidence to show that there was no warranty, and the receipt referred to in his affidavit (if there had been any such) was only cumulative, and would be no ground for setting the verdict aside even if he had been surprised. (Beaucliam v. Sconce, 12 Mo. 57 ) The affidavit ought to have alleged due diligence, but instead shows the grossest negligence. Even if the party had been mistaken as to the nature of the defence, it would be no ground for a new trial. It was his duty to inform himself. The answer was open to his inspection, and if he failed to look at it, it was his own folly. The affidavit does. not aver that the verdict is unjust, and, to warrant the court in interfering, such an averment is essential. (See Hanly v. Blan-ton, 1 Mo. 36 ; Muslien v. Judy, 4 Mo. 331; Elliot v. Leak, 4 Mo. 540; Stout v. Oolver, 6 Mo. 251; Lisle v. State, 6 Mo. 426 ; Stegers v. Darby, 8 Mo. 679 ; Robbins v. Alton Marine & Eire Ins. Co. 12 Mo. 387 ; State v. Laramore 20 Mo. 427; Wells v. Sanger, 21 Mo. 354.)
   Ryland, Judge,

delivered the opinion of the court.

Since the decision made by this court in the case of Wade v. Scott, 7 Mo. 509, which was rendered in August, 1842, it has been considered as the settled law in this state that in a suit for the consideration money arising on the sale of a slave, the defendant, in case there was fraud or a breach of warranty, may give evidence showing the amount of damages sustained by him by reason of the fraud or breach of warranty in diminution of the stipulated price. “ It is more reasonable,” said the judge who delivered the opinion of the court, “ that when a suit is brought to recover the price of an article, that any reduction of the stipulated price, to which the defendant may be entitled either from a fraud or breach of warranty in the sale, should be made in the action in which the price is sought to be recovered, than that he should be driven to his cross action for a redress of the injury.” In House v. Marshall, 18 Mo. 368, the same doctrine is held. In this case the notes sued on were given for the purchase money of land bought by defendant of the plaintiff. We held that the defendant might recoup the damages sustained by him by reason of the false and fraudulent representations of the plaintiff as to the quality and advantages of the land. (See also Grand Lodge of Masons v. Knox, 20 Mo. 433.)

In this case the recoupment of damages on account of the breach of the warranty made on the sale of the slaves, for the purchase of whom the note sued on was given, was the only defence set up and relied upon in the defendant’s answer. The instruction then given by the court on behalf of the defendant was unobjectionable. The evidence offered by defendant conducing to show there was a warranty, and that offered by plaintiff conducing to show there was none, the matter was properly left to the finding of the jury. The instructions given by the court for the plaintiff are not complained of, and the record shows that all were given which he asked.

As to the suggestion of surprise which is made by the plaintiff in his affidavit in support of the motion for a new trial, in our opinion, there is no weight in it. At most, it set up as an excuse his own negligence. The record shows that there had been two or three continuances — the case had been pending for some eighteen months. He might have known the defence relied on. He was party to the whole transaction. He knew what had been before the persons who had been once requested to arbitrate the difficulty. He had made his own statement and knew what the defendant relied on before them. We can not regard this suggestion of surprise as entitled to any consideration.

Upon the whole record, there is no error authorizing a reversal.

Judge Scott concurring,

the judgment is affirmed.


text:
    Boatman et al., Respondents, v. Curry, Appellants.
    1. The fact that an instrument, the foundation of an action, is not filed with a justice of the peace, is no ground for dismissing the suit; at most such failure is a ground for a continuance.
    2. A wife may when she becomes discovert affirm and ratify a deed made by her during coverture.
    3. Though, in a suit in behalf of persons claiming to be husband and wife to recover rent of the wife’s land alleged to be due, it is competent for them to prove the marriage by evidence of cohabitation and by general reputation, yet the defendant may show that the alleged marriage is illegal and void.

      Appeal from, Kansas City Court of Common Pleas.

    This was a suit instituted by John Boatman and Elizabeth, his wife, before a justice of the peace, to recover $40, the rent of a farm for six months. The cause was taken by appeal by the defendant Curry to the Kansas city court of common pleas. The account filed before the justice was as follows : “ Oliver P. Curry to John Boatman and Elizabeth Boatman, Dr. To one-half year’s rent of farm, at $80 per year — $40.” Before the trial the defendant moved to dismiss the cause because it was founded on a certain lease which had not been filed with the justice before process was issued. This motion was accompanied by proof that the same motion had been made before'the justice and had been overruled. The court overruled the motion. The plaintiffs “ proved by several witnesses,” says the bill of exceptions, “ that plaintiff Elizabeth Boatman, sometime about the 12th day of April, A. D. 1856, and whilst the wife of one George Daniels, leased in writing to one Sylvanus Crow certain premises formerly occupied by the said George Daniels and the said Elizabeth during the time they lived together, and which continued to be used and occupied occasionally by said George Daniels after the commencement of a suit by him against tjie said Elizabeth for a divorce. Plaintiff further proved that said lease was produced by plaintiffs on the trial before said justice, but that since said trial it had been lost or mislaid. Plaintiffs were then permitted to prove the contents of said lease without being required to prove the execution thereof, to which defendant objected; to which action of the court, in overruling said objection and admitting said evidence, defendant, by his attorney, excepted. Plaintiffs then proved by a witness, T-n, that defendant on one occasion, some time in April, A. D. 1856, and after he had taken possession of said premises, said he owed Mrs. Daniels some rent, but did not state the amount. Plaintiff proved by another witness, Casside, that defendant told him that the defendant held the premises and that he stood in Crow’s shoes ■under Crow’s bond, and that be bad paid Crow forty dollars. Plaintiffs proved by one Matthews the contents of said lease, and that the amount of rent thereon stipulated to be paid by Crow to Mrs. Daniels was the sum of eighty dollars per annum, and that the place was worth one hundred and twenty dollars per annum. There was no evidence of any contract between plaintiffs or either of them and defendant respecting the use and occupation of said premises. Before any evidence was offered by plaintiffs, defendant made to said court and jury a special denial of the marriage of plaintiffs and of their right to maintain this action as husband and wife. The court permitted plaintiffs to prove a general reputation of their marriage, and that they lived together as husband and wife, to which evidence defendants objected, and to which action of the court overruling the objection and admitting said evidence defendant excepted. Plaintiffs made no further proof of their marriage. It appeared in evidence that the said Elizabeth, who sues herein by the name of Elizabeth Boatman, is the same Elizabeth Daniels who leased said premises to said Crow, and from whom the said George Daniels subsequently procured a divorce. Defendant then offered in evidence a certified copy of the record of a judgment of said court rendered on the 19th day of July, A. D. 1856, in a certain cause between the said George Daniels as plaintiff and the said Elizabeth Boatman, one of the present plaintiffs, then Elizabeth Daniels, as defendant, divorcing the said George Daniels from the said Elizabeth Daniels. To the introduction whereof plaintiffs objected for irrelevancy. Defendant then stated to the court its supposed relevancy and purpose thereby to prove, 1st, the coverture of plaintiff Elizabeth Boatman at the time of the leasing by her to said Crow ; and, 2d, her incapacity to marry again for the space of five years from the said 19fch day of July, A. D. 1856, the date of said judgment of divorce. The court sustained plaintiff’s objection to the introduction of said judgment for irrelevancy and excluded the same from the jury ; to which opinion and action of tbe court, in sustaining said objection and excluding said evidence, defendant excepted.”
    Tlie court, at the instance of tbe plaintiff, gave tbe following instructions : “ 1. If the jury believe from tbe evidence that defendant occupied tbe farm or tract of land rented by Sylvanus Crow from plaintiff Elizabeth Boatman during the year ending April, 1857, they will find for tbe plaintiffs whatever amount they may believe from tbe evidence remains unpaid of tbe rent which said Crow was bound to pay by virtue of his contract with said Elizabeth. 2. If the jury believe from the evidence that defendant agreed to take the farm off the hands of said Crow, and by reason and in pursuance of said agreement took possession of and occupied said farm, they will find for plaintiffs the amount which they may believe due on the 1st of January, 1857, on account of the use and occupancy of said farm under the contract of April, 1856. 8. That George Daniels, the former husband of said Elizabeth Boatman, has no right to and can not by reason of his marriage with her legally claim any of the money or property of his said wife which he had not reduced into actual possession prior to the term of his divorce from her.”
    The court, at the instance of the defendant, gave the following instruction: “ 4. Unless the jury believe from the evidence that said John and the said Elizabeth were legally married prior to the commencement of this suit, they must find for defendant.”
    Napton, for appellant.
    I. The court erred in admitting proof of the contents of a lease without preliminary proof of its execution. By the instructions and testimony it will be seen that the responsibility of defendant was based upon a lease to a third person, and this lease was of course inadmissible without proof of its execution.
    II. The lease was invalid if executed by a married woman, and the plaintiffs’ own proof showed this to be the case.

      III. Although proof of general reputation might in ordinary cases of this character be sufficient to establish a marriage, yet as the marriage was expressly put in issue and the defendant offered record evidence of the incapacity of Mrs. Daniels to contract a second marriage at the time of the alleged marriage, the court erred in excluding such proof and determining general reputation to be conclusive.
    IY. But, apart from these questions’, the first instruction given by the court was wrong, and the instruction is independent and not ratified or in any way affected by any other instruction given on either side. It assumes the liability of defendant on account of a tenancy supposed to exist between plaintiffs or one of them and a third person, with whom no connection of defendant is required to be shown — no agreement to assume his liabilities — no acknowledgment of tenancy — and without reference to any payment made to such third person.
    Y. The second instruction is also wrong. In short, whatever may be the merits of this case, in an ordinary action for use and occupation, which the evidence does not disclose, it is manifest that there was an entire failure of proof to put the defendant on the same footing of responsibility with the lessee Crow, and the instructions of the court did not place the points of law clearly before the jury.
   Soott, Judge,

delivered the opinion of the court.

There is nothing in the point that the lease was not filed with the justice before suit was brought. The defendant was no party to the lease, and of course it could not be the foundation of an action against him. There is nothing in the record in relation to an assignment of it. Besides, it is no ground for dismissal that the instrument — the foundation of the action — is not filed with the justice; at most, such failure can only cause a continuance, if one is necessary to a fairt rial.

The deed of a married woman may be void; but if it is void why insist on its execution being proved ? No doubt, when the loss of an instrument is established, its execution must be proved before it can be read. (1 Starkie, 349.) How that is to be done will depend on the circumstances of the case, taking care not to allow an inferior degree of evidence when it appears that evidence of a higher degree is attainable. But though the deed of a married woman may be void, yet when she becomes discovert, there is nothing that prevents her from acquiescing in the contract stated in the deed; and if she docs so and both parties agree to it, they will be bound by it, and it is not for third persons to object to the validity of such an agreement.

It was allowable for the defendant to show that the marriage established by evidence of reputation and cohabitation was illegal and void. The proof of marriage by cohabitation was sufficient in this form of action, and the defendant could not change the nature of the evidence necessary to prove a marriage by any averment he might make that there was no marriage between the parties, or by an attempt to raise an issue on the specific denial that there was an actual marriage. But though a marriage may be proved by evidence of cohabitation, yet it is competent for a party to show that it was illegal and void. (2 Starkie, 221, 939.)

The judgment must be reversed for the giving of the first instruction asked by the plaintiffs. It is wholly unfounded in law. The statement of the proposition therein contained is sufficient for its refutation. Nor is it helped by the rule that all the instructions given in a cause must be considered together. The proposition contained in the instruction is an independent one, and of itself warranted a verdict. Besides, if the rent of the farm was eighty dollars a year, although the defendant may have enjoyed it for six months, yet it may be his enjoyment was not as beneficial as that of him who enjoyed it for the six preceding months. The occupancy of the defendant may have been for a time when no crop could have been made. In the absence of all agreement as to the amount of rent to be paid, the plaintiffs could only recover the value of the enjoyment to the defendant.

Judge Ryland concurring,

the judgment will be reversed and the cause remanded ;

Judge Leonard absent.


author: Rtland, Judge,

text:
    The State, Plaintiff in Error, v. Wetherford, Defendant in Error.
    1. Where two are jointly indicted, and one only applies for a change of venue, an order removing the cause will be effectual only as to the one so applying; if a recognizance be in such case entered into by both to appear in the court to which the cause is removed, it will be void as to the one not applying- for a change of venue.

      Error to Benton Circuit Court.

    Henderson Wetherford and Clemsey Wetherford were jointly indicted in the Morgan circuit court at the March term, 1852, for a felonious assault upon one Cline, with intent to kill. After several continuances, at the April term, 1854, Clemsey Wetherford failing to appear, a forfeiture of her recognizance was taken. At the October term, 1854, Henderson Wetherford filed the following petition for a change of venue:
    “ To the Honorable the Circuit Court within and for Morgan county, and state of Missouri: Your petitioner, Henderson Wetherford, would respectfully state that he believes the defendants can not have a fair trial of this cause in this judicial circuit on account of the prejudice of the circuit judge, and that he only became satisfied of said prejudice since the calling of this case. Defendants therefore respectfully ask that said cause may be sent by change of ventre to some judicial circuit where such prejudice does not exist. Henderson Wetherford makes oath and says he believes the matters stated in the foregoing petition are true. [Signed] Henderson Wetherford.”
    The court thereupon granted the prayer of the petition and made an order removing the cause to the Benton circuit court. Henderson Wetherford and Clemsey Wetherford both entered into a recognizance to appear in the Benton circuit court. Clemsey Wetherford failing to appear to answer to the indictment in the Benton circuit court, her recognizance was forfeited and a scire facias awarded. On the return day of the scire facias, Clemsey Wetherford appeared and filed a motion to set aside the forfeiture of the recognizance and dismiss the cause and all proceedings had in relation to Clem-sey Wetherford, because the indictment was found in the county of Morgan and there never was any change of venue taken to the Benton circuit court, because the Benton circuit court had no right to take such forfeiture; that said Clemsey was not bound to appear in the Benton circuit court by force or virtue of said recognizance; and that the court had no jurisdiction of the same. The motion was sustained and the proceedings dismissed, and the defendant, with her securities, discharged.
    The State brings the cause here by writ of error.
    Ewing, (attorney general,) for the State.
    I. Although the petition for the change of venue was not signed or sworn to by defendant in error, yet it was made on behalf of herself and her co-defendant jointly, and the ground of application is by the terms of the petition made applicable to both. The petition alleges that “ defendants can not have a fair trial,” and they, “ defendants,” ask the change of venue. The order of the court is, “ that the prayer of the petition be granted.” The order is in accordance with the petition and applies to both,defendants. Both defendants entered into a recognizance in open court, which is entered of record, to appear in the Benton circuit court to answer the indictment against them. Although certain forms were not complied with by defendant, yet, having consented to the change of venue, waived her right to a trial by a jury of the vicinage, claimed the benefit of a trial elsewhere before a court having jurisdiction of the offence, and referred her cause to its decision, she can not afterwards allege that such court has no jurisdiction. The constitutional riglit of trial by a jury of the vicinage is intended for the benefit and protection of tbe accused; yet when this is waived, as it was by defendant, and a change of venue was procured, by her own act and consent, to a coirrt of competent jurisdiction on easier terms than if she had complied with all the forms of the law, shall the omission to sign and swear to the petition avail her ? (Porter v. State, 5 Mo. 538; The People v. Scotes, 3 Scam. 351.) Shall defendant, after thus consenting to a change of venue-and obtaining it, without observing certain forms required by law, be allowed to rriake it the means of escaping from the custody of the law, and evading her recognizance to appear and answer to the indictment ? It does not lie in the mouth of a party who has obtained change of venue to object to a trial in the court to which he has caused it to be removed, if enough appears to give that court jurisdiction. (McBain v. Enloe, 13 Ill. 76.)

      Wright and Johnson, for defendants in error.
    I. There was no removal of the cause as to Clemsey Weth-erford. The constitution secures to the accused the right, in prosecutions on presentment or indictment, to a speedy trial by an impartial jury of the vicinage. In a case like the present, when a cause is the prejudice of the judge, a change can only be made upon the application of the person in whose favor it is awarded, unless the accused is a slave or a minor. (R. C. 1845, sec. 19, p. 864.) ' Clemsey Wetherford did not apply for the change, and the fact that she subsequently entered into the recognizance does not alter the case. (Fanny v. The State, 6 Mo. 141; Hunter et al. v. The People, 1 Scam. 454.) One person, though jointly indicted with another, can not deprive the other of his constitutional right of being tried in the court where the charge is laid.
    II. But it is manifest from the record the court only intended to remove the case as to Plenderson Wetherford. A forfeiture of Clemsey Wetherford’s' recognizance had been taken at a previous term. The entry shows that Henderson Wetherford alone applied for the removal of the cause ; that he alone appeared and filed the petition, which was signed and verified by himself only, and in the order making the change the cause is headed against him alone. The statute requires the cause of removal to be specified in the order, and the cause here specified is the prejudice of the judge against Henderson Wetherford and not against the defendant in error. The indictment, as against Clemsey Wetherford, still remains in the Morgan circuit court. The recognizance to appear in the Benton circuit court was of no effect, and a forfeiture could not be taken upon it. (Barker v. The People, 11 Gilm. 578.)
   Rtland, Judge,

delivered the opinion of the court.

The venue in this case, so far as regards the defendant Clemsey Wetherford, was improperly changed from Morgan circuit court to the Benton county circuit court. Clemsey Wetherford did not petition for the change — took no steps to have it ordered, and the circuit court of Benton county had no jurisdiction over the case, so far as it relates to her.

The judgment of that court then discharging the defendant Clemsey from the indictment was improper, and it must be reversed. The judge of the Benton circuit court should have remanded the case so far as the defendant Clem-sey was concerned, to the Morgan circuit court; have sent it back, and sent her back too, to be tried in the Morgan circuit court; should not have discharged her. The judgment is reversed, and the Morgan circuit court is directed to proceed and try the defendant Clemsey on the indictment, which is considered as still pending in that court;

Judge Scott concurring.


author: Rylakd, Judge,

text:
    Calhoun v. Buffington, Auditor of Public Accounts.
    1. The state is liable to pay costs in a criminal prosecution against a slave only in case the slave is convicted of a capital offence and is executed; an escape of the slave from custody or his execution by a mob, either before or after conviction, would not be sufficient to render the state liable for costs.
    Petition for a mandamus. This was an application in behalf of Calhoun as clerk of the circuit court of Clay county, for a mandamus to the auditor of jpublic accounts, requiring him to audit and allow two bills o'f costs — one in the case of The State v. Edmund, a slave — the other in the case of The State v. Peter, a slave. In the first case the defendant was indicted for murder in the first degree, committed to jail, and before trial he escaped therefrom,'and has not been retaken. Afterwards at the October term of the circuit court, 1854, on motion of the circuit attorney, the cause -was continued generally and to. pass off the docket. In the last mentioned case, defendant was indicted for murder in the first degree and committed to jail to await his trial at the April term of the court. Previous to that term defendant was taken from the custody of the sheriff of Clay county and hung. These bills of costs were certified to the auditor, who refused to allow them because, in his opinion, the state was not liable to pay them. The fees in both cases accrued under the act of 1845. The counsel for the petitioner and the attorney general agreed to the foregoing statement of facts ; it was also agreed that the decision of the Supreme Court might be made upon the application with the same effect as upon the return to an alternative mandamus.

      Wilson, for petitioner.

      Ewing, (attorney general,) for auditpr.
    I. The State is not liable for the costs. (R. C. 1845, secs. 13,14,15 and 16, art. 2, tit. Costs in Grim. Cases, p. 250.) Under this law the State is not chargeable with costs except in cases of conviction, and then only where the slave is convicted of a capital offence and executed.
   Rylakd, Judge,

delivered the opinion of the court.

From the facts set forth in the agreed case, upon which the mandamus against the auditor is prayed for, this court must refuse the writ. The State is only liable to pay the costs in a prosecution against a slave when the slave has been convicted and executed capitally. Conviction alone and escape before execution will not put the costs on the State. The 16th section of 2d article of the act concerning costs is as follows : “ If a slave be convicted of any capital offence and executed the costs shall be paid by the State.” The 13th section of the same article is as follows: “ If a slave shall be convicted of any offence in a case where, if the convict was a free person he would be liable to pay costs, such slave shall be sold to satisfy such costs, unless the master or owner appear and pay the same within sixty days after they become due.” The 14th section directs the sheriff how to proceed to sell the slave, &c. The 15th section is as follows : “ Any slave convicted of a capital offence, who shall be reprieved or pardoned by the executive, shall be sold to satisfy the costs, unless the owner or master appear and pay the same within the time prescribed in the second preceding section” — 13th section.

Now the law is plain, and we can see the obvious design of the legislature was not to subject the State to pay costs, when a slave was prosecuted for any offence and convicted of it, until he was executed; for, as long as he could be sold, or as long as life was not taken as the punishment, the slave was to be liable to pay the costs. ITe was to be sold to raise the funds to pay the costs. He was to be executed. The lawless violence of a mob, in its impatience to inflict punishment, taking the life of a slave, is not the execution contemplated by this statute, even if the slave had been convicted before he was hung by the mob. The escape from prison does not render the State liable even after conviction. He must bo executed under the process of the court as a punishment of the offence before the State becomes liable to pay the costs.

Judge Scott concurring,

the writ is refused.