author: RylaND, Judge,

text:
    Beale’s Administrator, Respondent, v. Dale, Appellant.
    1. "Where a father sends home with Ms married daughter a slave, saying at the time that he had given the slave to her, it will not he presumed, as a matter of law, to he an absolute gift.
    2. In an action for the possession of a slave, in which the value of the slave was alleged to he nine hundred dollars, and the damages for the detention, one hundred dollars, the jury did not find the value of the slave, but “assessed the damages at eight hundred dollars.” Quere: whether a judgment for such sum could be supported ?

      Appeal from, St. Clair Circuit Cowri.

      F. P. Wright, for appellant.
    ' I. A new trial should have been granted on account of the verdict. The verdict was bad. ■ It only finds part of what, was in issue. The issues were, whether the slave belonged1, to plaintiff as averred; and if so, what was her value, and what the damages arising .from the detention, if wrongfully •• detained. The jury failed to find the value, and this omission is fatal. (1 Chit. Plead. 141; 7 Bacon Abr. Yerdict. m.) The damages were too large — being assessed at eight hundred dollars, and the amount claimed being only one hundred.
    II. The first and second instructions given on the part of the plaintiff are wrong; the first is absolute, without reference to the disputed fact whether the slave was given to the wife for her separate use or not; and if it was, the instruction is wrong. The second is a comment on the evidence, and also states that as a presumption of law which should have been found by the jury. The instructions asked by defendant should have been given. If the facts were as supposed in defendant’s instructions, the administrator of Beale’s estate could not recover in any form, of action.

    III. The judgment should have been arrested; it neither conforms to the relief sought nor to the verdict. The petition sought the recovery of the slave, and the judgment should have been for such recovery; or rather the judgment should have been in the alternative, that the plaintiff recover the negro girl, or the value thereof if he can not have the. negro girl, and damages for the detention. (1 Chit. Plead. 141.) But judgment should not have been rendered for greater damages than claimed in the petition. The jury having failed to find the issues, the court would reverse the judgment, even if no motion in arrest had been filed. (8 Mo. 275 ; 5 Mo. 53 ; 9 Mo. 624.)

      Johnson and Gardenhire, for respondent.
    I. Both parties concede there was a gift; respondent insisting it was absolute, and vested the slave in Beale, the decedent; and appellant, that it was conditional, and vested the slave in decedent’s wife during life, and in her children afterwards. This was^ question of fact submitted to the iury under instructions every way unobjectionable, and they found it for the plaintiff.
    II. But it is insisted in this court that the verdict was for greater damages than asked in the petition, and that the jury did not assess the value of the slave. Neither of these objeo-,; tions appears in the motion for a new trial. If valid, they were certainly sufficient grounds for a new trial, and the attention of the court below ought to have been called to them in the motion for a new trial. It was not done. There is nothing at all in the record to show that either of these objections ever was presented to, or thought of in, or decided by, the court below. This court only reviews such points as the record shows were presented to and decided by the court below. It is a court of review.
    III. It can not be insisted that these objections were presented to and decided by the court in the motion in arrest of judgment, and the decision of the court upon it. A motion in arrfest is an attack upon the petition, as a motion for a new trial is an attack upon the verdict. There is no defect in the petition; the defect, if any, was in the verdict, and it was not pointed out to the court in the motion for a new trial. The judgment conforms to the verdict, and the verdict is such a one as will support the judgment; and, although the verdict might have been attacked successfully in the motion for a new trial, yet it was not so done, and it must stand, and standing supports the judgment.
   RylaND, Judge,

delivered the opinion of the court.

This is an action, instituted in the Circuit Court of St. Clair county by Metcalf as the administrator de bonis non of the estate of James Beale, deceased, against Dale, in the nature of an action of detinue for the recovery of the possession of a negro girl slave.

The plaintiff alleges that Beale died the owner of the slave ; that he, by virtue of his letters of administration, became the legal owner of the slave, and as such was entitled to the possession; that defendant wrongfully detains the negro girl; that the slave is of the value of nine hundred dollars, and that the damages sustained in consequence of the detention amount to one hundred dollars. Plaintiff asks judgment for the immediate possession of the negro girl slave, and for the damages for tlie detention. The defendant answered, denying the averments in the petition, and claims the negro as his own property.

It appears from the evidence set forth in the bill of exceptions that the wife of the decedent Beale, (who is now the wife of the plaintiff,) is the daughter of the defendant Dale. The negro girl in controversy was owned and raised by Dale. The evidence respecting the ownership of the slave at the time of the commencement of this suit consisted principally of the declarations of the defendant and of the deceased Beale. The plaintiff endeavored to. prove that defendant gave the slave absolutely to his daughter in the lifetime of Beale. The defendant endeavored to prove that he gave the negro to his daughter during her life, and after her death to her children, but not to take effect until the death of defendant’s wife. The evidence shows that nothing was said by defendant about giving the negro until some time during the last sickness of Beale. His daughter was then mother of several children by Beale. The jury found “ the issues for the plaintiff, and assessed the damages at eight hundred dollars.” The judgment is as follows: “ It is therefore considered by the court that the said plaintiff have and recover of the said defendant the said sum of eight hundred dollars so assessed by the jury as aforesaid, together with his costs and charges in this behalf expended, and that execution issue therefor.” As the court gave an improper instruction on the part of the plaintiff, and the judgment will in consequence have to be reversed, we have considered it most prudent not to give any intimation about the evidence. We shall therefore not make any statement of it particularly.

The law allows a person to make a parol or verbal gift of a slave, provided possession accompany the gift. The donor can not give and retain the possession verbally, but may give-verbally and without writing if he give possession of the property to the donee at the time or shortly after, so that there be a, transfer of the property and possession from the donor to the donee, bona fide, changing the property and possession, divesting the same from one and investing it in the other. The law allows a person to give by parol a slave to his daughter for life, and at her death to her children, especially if she have children living at the time of the gift, and the possession accompany the gift. In such case the delivery of possession to the mother, the tenant for life, was a delivery pro hac vice to her children.' This doctrine is plainly laid down by this court in Pemberton v. Pember-ton, 22 Mo. 338. The court, in delivering the opinion, asked the question, “ Was it in the power of the donor to make this gift to his daughter for life, and then to become the property of her children ? The children in this case were alive at the time the donation was made to their mother for life, and to them after her death. This donation gave the mother a life estate and a vested remainder to her children; the delivery of the possession to the mother, the tenant tor life, was a delivery pro hac vice to her children.” The court also said in this case of Pemberton v. Pemberton : “ Here is nothing but a simple donation of property to persons in being —the one to have it for life, and the others to have it after the first taker’s death ; and where, in such gifts, the possession accompanies the property in the hands of the donees, there can not be a reasonable objection to their validity.”

This case can only be viewed in one of three ways as regards the transaction between the defendant Dale and his daughter, Mrs. Beale. 1st. If the gift of the slave in question was made to the daughter absolutely, and was accompanied with the possession. 2d. If the gift was to her for her life, and her children after her death. 3d. If the gift was to be made and to take effect after the death of the defendant’s wife — to be a future gift.

It is only in the event' that the first proposition can be established by the testimony, that the plaintiff can be allowed to recover the slave or her full value. If either the second or third be the real state of the transaction, he can not recover the slave or her full value. If it be the third, he can not recover any thing, for it is no gift. If the second, he as administrator is entitled only to the life-estate of the wife, and not the full value of the slave. The instructions therefore should be so framed as to embrace the law arising on either of these views.

The second instruction given for the plaintiff is wrong; it was calculated to mislead the jury, and for giving this the judgment must be reversed. This instruction is as follows : “ If the jury shall believe from the evidence that Nancy Beale, now wife of said plaintiff, is the daughter of defendant, and that defendant sent the slave Susan home with her, and that defendant at that time said that he had given Susan to her, without any other explanation of his intention whether it was an absolute gift to her or not, and that defendant permitted said slave to remain in her or her husband, James Beale’s, possession until the death of the said Beale, it is to be presumed, imless disproved by other evidence, that the slave was given absolutely as an advancement to his said daughter Nancy Beale.”

This doctrine of presumption that property sent home by a father with his daughter and son-in-law, upon their going to commence housekeeping first after their marriage, will be considered as an advancement to his daughter and son-in-law, has never been carried to the extent heretofore asdthas been in this case. Here the facts show that Beale and his wife had four or five children; had in all probability been keeping house for years; that Beale was in very feeble health, and that the daughter was in need of assistance to save her from severe menial labor — even out-door labor. Now to hold that in such cases, a father sending a servant to his daughter and saying he had given her the servant, and his permitting the servant to remain with his son-in-law and daughter until the death of the son-in-law, “ it is to be presumed, unless dis-roved by other evidence, that the slave was given absolutely as an advancement to the daughter,” is supported by no authority that we can find, and is in our opinion unwarranted. In Mulliken v. Greer, this court said: “ The circumstance of the slaves’ being sent home with the daughter of the defendant and wife of the plaintiff, when she left her father’s house soon after marriage to go to the house of the husband, most certainly does not amount to a gift or transfer of the title to the slaves, although they remained there about one year till the death of the plaintiff’s wife. But the sending of the slaves at the time and suffering them to remain was strong evidence from which a jury might well presume a gift.” Here the situation of the parties is regarded — soon after marriage — about to go to the husband’s house — having just left the father’s house.

The doctrine of such acts being evidence from which a jury might presume that the father made an advancement to his daughter of the slaves or property upon her leaving his house — her former home — and being about to commence with her husband housekeeping, shortly after marriage, is fully sustained by numerous decisions of the highest courts in some of our sister states. But in no case that we have seen has the doctrine been -stretched so far as this instruction carries it. (Carter’s Exec’rs v. Rutland, Hayw. 97 ; Moore’s Adm’r v. Dawney, 3 Hen. & Munf. 127 ; Brashears v. Blassingame, 1 Nott & McCord, 223 ; Thompson v. Caldwell, 3 Littell, 137 ; Smith v. Montgomery’s Adm’r, 5 Mon. 502; Bell v. Strother & Buchanan’s Exec’rs, 3 McCord, 207 ; Oldron v. Powell, 7 Ala. 655.) This court has held the same doctrine. This instruction had a direct tendency to mislead the jury.

This suit is for the negro girl and for damages for detention of the girl, stated at one hundred, dollars; yet the verdict is for eight hundred dollars damages, without saying any thing about the value of the girl. The plaintiff says he is entitled to the immediate possession of the girl slave, and for which he asks judgment, as well as for said damages sustained for said caption and detention. Here his prayer is for judgment delivering to him the girl — the specific property — - and damages for detaining from his possession the girl for one hundred dollars. Now the verdict and judgment are silent as to the value of the girl and her possession, and alone sound in damages — $800. Now for what is this amount ■given? For the value of the girl? It can not be for the damages only in detaining her from the plaintiff’s possession, for he estimates these damages at one hundred dollars only. This matter is jumbled up without care or skill, and the court below should not have suffered it to remain so. If it were for the full value of the slave, and the jury should find ■that the gift was one to the wife of Beale for her life and her children afterwards, the’p the administrator of Beale’s estate is not entitled to the full value of the slave, but to the value only of Mrs. Beale’s life interest in her.

Again, the plaintiff had better be more particular next time; he should well pause and reflect whether, when he sues for a specific article in his petition, he can name the proper judgment in such a petition and take a judgment for damages only. If a person sued in detinue at common law, the judgment for the plaintiff was that he recover the specific article sued for, and if it could not be had then the value thereof — not the article or the value, giving plaintiff choice which he would take, but for the value if the article could not be had. (Poler & Bentlet v. Hardyman & wife, Yelverton, 71 b.; 7 Mass. 414.) “ Judgments in detinue are always conditional when in favor of the plaintiff, to recover the thing sued for, or, if it can not be found, its equivalent in damages.” In New York it is said the action to recover the possession of personal property is one peculiar in its character and object. The code has given it in place of the former action of replevin, and its design is to subserve the same purpose. (Chappel v. Skinner, 6 How. Frac. R. 339.) The actions for injuries by force to property, and claims to recover the possession of personal property, are substantially different causes of action. These actions are what were formerly known by the respective names of trespass de bonis asporta-tis and replevin; and these actions, under the present as well as the former practice, are concurrent actions — the same state of facts sustaining the action in either form. It is the judgment demanded wliicb determines to which class it belongs ; and where the complaint asks for damages and not for the possession or return of the property, the action comes within the class which was formerly denominated trespass, and not replevin; and therefore the plaintiff, in such a case, is not entitled to the benefit of the proceedings provided by the chapter concerning claim and delivery of personal property to obtain the immediate delivery of the property. (Spalding v. Spalding, 1 Code Rep. 64 ; 3 How. 297, 377 ; N. Y. Code, 1852, 3d ed., p. 218.) If the plaintiff’s action be detinue, he can not change it by a judgment for damages only. He must be held to the action and the relief given under it. When a man sues in detinue for the specific species of property — a horse for instance — the death of the horse before the defendant makes his plea or answer will most materially affect the plaintiff’s action; but not so if the suit was trespass de bonis asportatis. (See Polk’s Adm’r v. Allen, 19 Mo. 468.)

I have thought it proper to make these suggestions for the benefit of the parties, if they think proper to have another trial. The new code of practice has had its effect upon lawyers and suitors, and sometimes it appears as though neither party was any the better or wiser on account of it. Let the judgment he reversed and the cause remanded for further proceedings ;

Judge Scott concurring.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    Stewart, Respondent, v. Nelson, Appellant.
    1. "Where a purchaser at a sheriff's sale practices any deceit or imposture, or is guilty of any trick or device, the object of which is to get the property at an under value, the sale may be set aside in favor of the defendant in the execution.

      Appeal from Cooper Circuit Cowrt.

    The facts sufficiently appear in the opinion of the court.

      Torbert, Gardenhire, Morrow and Pmsons, for appellant.

      Adams and Hening, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was an action brought by Stewart against T. W. Nelson to set aside a sheriff’s sale of real estate and to compel the defendant, who was the purchaser, to convey to him the title acquired by the sheriff’s deed. The defendant answered the petition, and the cause was by the parties submitted to the court, who found the facts as follows : “ That the plaintiff was indebted to the county of Cooper as stated in his petition; that he had given a mortgage to secure the debts as therein stated; that judgment had been rendered at the times and for the amounts mentioned in plaintiff’s petition; that executions were issued upon the judgments, and that the property described in the plaintiff’s petition was levied upon and sold under said executions as stated in the plaintiff’s petition. The court also finds that the real estate sold consists of two distinct tenements, and that it was all sold together in one lump. There was no evidence however showing that the property would have sold for a better price if sold separate. The court further finds that at the time of the sale the plaintiff was in the state of California, and had no notice of the proceedings against him except by order of publication; that he had no knowledge or information of the sale until after it took place ; and the court further finds that the defendant bid off the property in a lump at one bid; that no other bid was made. The court further finds that, prior to the sale, the justices of the county court of Cooper county — to-wit, Hazell Rice and Wade — made the arrangement with Joseph L. Stephens, who was the county attorney, to-wit, that he (Stephens) was to attend the sale and purchase the property, if it went at a price not exceeding fifteen hundred dollars, which they considered as about the amount, with costs, then due the county ; that Stephens was to hold the property, if he bought, first, to secure the county of Cooper in the amount owing to the county, and suffer the plaintiff, on his return from California, if he returned in a reasonable time, to redeem the same by the payment of the amount, interest and costs due the county; and that Stephens consented to act in the matter, to purchase the property and hold it on the terms aforesaid; and that Stephens, on the day of sale, made an arrangement with the sheriff to let him know when the bidding would commence ; that said Stephens was in the court-house attending to business on the day of sale, and just before the bidding commenced the defendant came to Stephens and told him that he need not attend the sale, that he had made the same arrangement and would stand in his place. And the court further finds that immediately afterwards the property was offered by the sheriff; that in consequence of what defendant had told him Stephens did not attend the sale and run the property up to fifteen hundred dollars, or at least to the amount of the county debts, interest and costs, which was about that amount; and the court finds that the property was worth from fifteen hundred to two thousand dollars at the time of the sale ; and the court further finds that the competition at said sale was prevented by the acts and conduct of the defendant, and that he obtained the property at an under value of about five hundred dollars less than it would have brought on that account. The court further finds that after the sale the defendant executed his notes to the county of Cooper for the amount of his bid instead of paying the money, and paid the amount of costs, leaving unpaid the balance of the debt to the county; that Nelson, the defendant, caused execution to be issued on the balance of the debt, which was about four hundred dollars, and ordered the same to be levied on other property of the plaintiff; and that plaintiff paid off the balance of the debt and interest, and offered, as alleged in his petition, to pay the defendant’s notes to the county, and what money he had paid; also offered to pay all expenses he had been put to on account of repairs, taxes or any other expense he had been put to ; but the defendant would not sxrffer him to redeem said property, to cancel or set aside the sale, or to convey it to the plaintiff; and the court finds that the defendant was not guilty of any of the other matters or charges alleged against him by the plaintiff in his petition.” The court declared the law upon the facts found to be that the sheriff’s sale ought to be set aside, and that Nelson ought to convey the property back to Stewart by quit claim deed on his (Stuart’s) paying off Nelson’s notes to the county and refunding to said Nelson all the money he paid at the time of the sale, and paying to said Nelson all amounts expended on account of said property since the purchase ; judgment was rendered accordingly; and in order to ascertain the amounts Stewart will have to pay and’ the amount of rents recovered by Nelson since the sale, it is ordered that an account be taken by Isaac Lionberger, who is hereby appointed commissioner for that purpose, who shall take said account and report to the next term of the court; and xxpon the filing of said report the time will be fixed within which Stuart shall redeem by the payment, &o. Defendant moved to review the finding, and stated his objections thereto. His motion was overruled, and he appealed to this court.

In looking into the testimony, we think the court was warranted in finding the facts, and we also entertain no doubt that the finding supports the judgment. We agree with the doctrine laid down in the Supreme Court of Pennsylvania, that a purchaser at a sheriff’s sale who practices any deceit or imposture, or who is guilty of any trick or device, the object of which is to get the property at or under value, thereby renders the title so acquired worthless in his hands. (Abbey v. Dewey, 25 Penn. 416 ; Neale v. Hone, 20 Mo. 296 ; Wooton et al. v. Hinkle, 20 Mo. 290.) It is an unpleasant task to comment on such conduct and apply the terms the law warrants in administering it in such cases. We dismiss the subject by stating that there is nothing on the record requiring the interference of this court with the judgment below.

Judge Scott concurring,

the judgment is affirmed.


text:
    Martin, Appellant, v. Almond et al., Respondents.
    1. A deed -was executed in the following form: “ This indenture, made and entered into this, &c., by and between A. B. and C. D., of, &c., of the first part, and E. E., of, &c., of the second part, witnesseth, &c. In testimony whereof, the said parties of the first part hare hereunto set their hands and seals the day, &c. [Signed] G. H. (seal), I. J. (seal), attorneys for A. B. and C. D.” Held, to be the deed of the principals, A. B. and C. D.

      Appeal from Platte Circuit Court.

      Wilson, for appellant.

      Napton and Hall, for respondents.
    I. Tbe deed, is tbe deed of tbe principal, Hardin D. Martin. (Townsbend v. Corning, 23 Wend. 436; 4 Hill, 353; Wilburn v. Larkin, 3 Blackf. 55 ; Dening v. Bullett, 1 Blackf. 55 ; 1 Amer. L. Cas. 428.)
   Ryland, Judge,

delivered tbe opinion of tbe court.

Tbe only question in tbis case is, whether the deed from Hardin D. Martin and Eveline Martin bis wife, to Green E. Martin, which was executed in tbe following manner, is tbe deed of tbe principals or not: “ This indenture, made and. entered into tbis second day of April, 1846, by and between Hardin D. Martin and Eveline Martin, of the county of Platte, and state of Missouri, of tbe first part, and Green E. Martin, of Jefferson county, and state of Missouri, of the second part, witnesseth,” &c. Tbe covenants in said deed are in these words : “ The said parties of the first part, for their heirs, &c., covenant and agree,” &a. The deed concludes as follows: In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year above written. [Signed] Zadock Martin (seal), James B. Martin (seal), attorneys in part for Hardin D. Martin and Eveline Martin.”

We have no hesitation in saying that, in our opinion, this deed is the deed of Hardin D. Martin and Eveline Martin; and its execution in the manner above set forth is sufficient to show that it is the deed not of the attorneys in fact, but of the principals. This deed purports on its face to be the deed of Hardin D. Martin and Eveline Martin; they are called parties of the first part; all the covenants are made by them under that description. The in testimonium embraces them by the same description. 'The signatures of the attorneys being put first makes no difference. They subscribe the deed for their principals ; the deed is all the way through in the name of the principals as parties of the first part; and it matters not whose names are first subscribed, the agents’ or the principals’.

Judge Story, in his treatise on agency, says : “ The true and best mode in such cases undoubtedly is, to sign the name of the principal 4 A. B.,’ and to add 4 by his attorney, C. D.;’ but it will be sufficient if the signature, in such cases, be 4 for A. B.’ (the principal), 4 C. D.’ (the agent) ; for, under such circumstances, the order of the words is not material as the deed purports on its face to be the deed of the principal, and the intention is to execute it in his name and as his deed. Indeed, in all cases where the instrument purports on its face to be intended to be the deed of the principal, and the mode of execution of it by the agent, however irregular and informal, is not repugnant to that purport, it would probably be construed to be the deed of the principal, especially where the in testimonium clause is that the principal has thereto affixed his seal.” (Sto. Ag. § 153.) A bond which sets forth that A. B., as agent of C. D., legally appointed for the purpose, binds the said C. D. to make a title, &c., and which is executed as follows : 44A. B. (seal), agent for C. D.,” is the deed of 0. D., provided the authority of A. B. be sufficient. C. D. is here alone bound for the performance of the covenants, and the bond is executed for him by his agent. (Dening v. Bullett, 1 Blackf. 242.) It is most advisable, however, when the principal alone is to be bound, to write the deed as if it were to be executed by the principal in person, without inserting the attorney’s name at all as was done in this case now before ns. In Wilks v. Back, 2 East, 144, Grose, J., said: “I accede to the doctrine in all the cases cited, that an attorney must execute his power in the name of the principal and not in his own name ; but here it was so done; for where is the difference between signing J. B., by M. W., his attorney — which must be admitted tobe good— and M. W., for J. B. ? In either case the act of sealing and delivering is done in the name of the principal and by his authority; whether the attorney put his name first or last can not affect the validity of the act done.” The execution of a bond thus: “EorL. J. Larkin — George Crum (seal),” was held to be sufficient. (3 Blackf. 56 ; see 1 Amer. Lead. Cas. 429, et seq.; Combes’ case, 9 Coke, 77-8, note g.') Provided the act be done in the name of the principal, there is no particular form of words required to be used ; thus, if opposite the seal be written “For A. B.” (the principal), “ C. D.” (the attorney), the execution is good.

We deem it useless to multiply authorities on this subject or to cite further examples. We are satisfied that the ruling of the court below, declaring the deed in this case to be the deed of Hardin D. Martin and Eveline Martin, was strictly conformable to authority, and as such the judgment below must be affirmed;

Judge Scott concurring.


author: RyláND, Judge,

text:
    The State, Respondent, v. Appling, Appellant.
    1. The utterance in public of words grossly obscene, in such a manner as to outrage decency and be injurious to public morals, though not an open and notorious act of public indecency within the statute, is a misdemeanor at common law and punishable as such.

      Appeal from Laclede Circuit Court.

      F. P. Wright, for appellant.
    The indictment is bad. Merely using vulgar and obscene words is not indictable under the statute. To constitute the offence there must be some open and notorious act of public indecency. But if the mere.use iff language is sufficient, the indictment is still bad. Neither charge is sufficiently laid. Dameron v. The State, 8 Mo. 496.)

      jEwing, (attorney general,) for the State.
    I. The offence charged is within the intention and mischief of the statute, and a reasonable construction of the law embraces the offence charged within its provisions consistently with the rule that penal statutes are to be strictly construed. The intent of the legislature in the Construction of penal statutes is not to be disregarded. (Smith’s Commentaries, 840-3.) But if the offence charged is not indictable under the statute, it is at common law. (4 Black. Com. 64; 1 Russell on Crimes, 4, 5, 6 ; Wharton’s Crim. Law, 805 ; Bell v. State, 1 Swan, 42 ; Gingham & Ligan v. State, 2 Yerg. 589 ; Commonwealth v. Eharpless, 2 Serg. & Raw. 91; Barker v. Commonwealth, l^HPenn. 412.)
   RyláND, Judge,

delivered the opinion of the court.

The only question in this case is raised upon the indictment. ■ The defendant was convicted and judgment rendered against him for the fine ; he moved in arrest of judgment; , his motion being overruled, he appealed to this court. The indictment is not good under any of the provisions in our criminal code ; but we consider the offence therein charged to be an offence indictable at common law, and that the indictment is good as a common law indictment. The charge is “that the defendant did, on the'25th of August, A. D. 1856, at the county of Laclede, in a certain large assembly of males and females in said county, and in the hearing of said assembly of persons, unlawfully, wickedly and scandalously use®\ vulgar, obscene and indecent language, by then and there \ asking some of the males, <fcc., [here the questions are inserted in the indictment, which are too vulgar to be inserted in this opinion,] and was then and there guilty of open and notorious acts of public indecency, grossly scandalous, to the manifest corruption of the morals of said assembly, contrary,” &c.

We have no statute punishing a person for the use of vulgar, indecent and obscene words in public. There has not been an attempt to legislate on this particular offence. It was an offence at common law, because it was against good morals — against public decency. Russell, in his Treatise on Crimes, (1 vol. p. 46,) says :■ And it seems to be an established principle that whatever openly outrages decency and is injurious to public morals- is a misdemeanor at common law.” “ The common law,” said Judge White, in the case of Gresham & Ligan v. The State, 2 Yerger, “ is the guardian of the.morals of the people and their protection against offences notoriously against public decency and good morals.” Blackstone lays it down that “ any grossly scandalous and public indecency is indictable and punishable in the temporal courts by fine and imprisonment.” (4 Black. Com. 41.) It was held in the case of Bell v. The State, 1 Swan, 42, that “ the utterance of obscene words in public, being a gross violation of public decency and good morals, is indictable ; and in a prosecution for the utterance of obscene language in public, it is not necessary that the words should be proven exactly as charged to have been spoken. Many cases have been held indictable as being contra bonos mores.” (4 Black. Com. 41.) “ All indecent exposure of one’s person to the public view, and it may be laid down in equal terms that all such acts and conduct as are of a nature to corrupt the public morals or to outrage the sense of public decency are indictable, whether committed-by words or acts.” (4 Black. Com. 65, note.) . '

Our respect for the chastity of the records of our court will not suffer the outrageously vulgar words that vyeye;- spoken and sung by the defendant in this case, in the hearing of both males and females, to be put on the records. But we have never had to examine the records of our inferior tribunals to find words more shocking to one’s sense of decency than those charged and proved in this case, Tilghman, C. J., in tlie Commonwealth v. Sharpless, 2 S. & R. 101, said: “ That actions of public indecency were always indictable as tending to corrupt the public morals, I have no donbt. What tended to corrupt society was held to be a breach of the peace and punishable by indictment. The courts are guardians of the public morals, and therefore have jurisdiction in such cases. Hence it follows that an offence may be punishable if in its nature and by its example it tends to the corruption of morals, although it be not committed in public. (Barker et al. v. Commonwealth, 19 Penn. 412.) The offence charged in this indictment, being an offence against public morals and decency, was indictable as such at common law, and is indictable with us as a common law offence. We consider the indictment sufficiently good, and that the court did not commit error in refusing to grant a trial, or in refusing to arrest the judgment.

Judge Scott concurring,

the judgment is affirmed.


author: LEONARD, Judge,

text:
    Vaughn, Defendant in Error, v. Tracy, Plaintiff in Error.
    1. Possession of real property under an unrecorded deed, though brought home to a subsequent purchaser, does not constitute, as a matter of law, actual notice of such prior deed within the meaning of our registry act.
    2. Possession and apparent ownership are, however, facts from which a jury will be warranted in inferring actual notice.
    3. Where the evidence relied on to bring home to a subsequent purchaser actual notice of a prior unrecorded deed is a declaration of such subsequent purchaser to the effect that his grantor had told him before his purchase that the plaintiff.(the prior purchaser) “ had a mill on the land and would have to move it away now,” it is error to instruct the jury that “ if the plaintiff was on the acre of land and mill thereon at the time of the defendant’s purchase, and that fact was then Irnown to defendant, it was a sufficient notice in law of the plaintiff’s previous purchase so as to affect the defendant with notice of the plaintiff’s title.”

      Error to Osage Circuit Court.

    This was a suit for the possession of, and to obtain the legal title to, a tract of one acre of ground upon which was a horse grist-mill. The plaintiff introduced in evidence an instrument under seal, being articles of agreement between himself and one W. R. Huckstep, dated March 3, 1845. By this instrument Huckstep engaged to convey to Vaughn a tract of eighty acres of land; and it was recited therein that one acre of the tract, “ whereon the mill now stands,” had been previously sold by Huckstep to Vaughn for sixty dollars. This instrument was not acknowledged, but was recorded September, 1846. Defendant Tracy claimed title under a deed from Huckstep, dated February, 1852, conveying eighty acres, including the acre in controversy. At the date of the deed to Tracy plaintiff was in possession of the acre lot, and had been for eight or ten years previously.
    The remaining facts are sufficiently set forth in the opinion of the court.

      Parsons for plaintiff in error.
    I. The instrument of writing executed by Huckstep and Vaughn was inadmissible. It was not acknowledged. (R. C. p. 226, sec. 42.) Further, there was no proof of the execution of this intrument of writing.
    II. There was no evidence tending to show that Tracy had notice of an adverse possession in the defendant in error. The declarations of Tracy are the only evidence on this point. He said Huckstep told him the defendant had a mill on the land, but he would have to move it now. If Tracy relied on this statement of Huckstep, he was evidently led to believe Vaughn had no adverse title in the land. That he did rely upon Huckstep’s statements there is no doubt. He resided upwards of one hundred miles from the land; had never seen it until after his purchase ; relied on Huckstep’s statements as to the quantity and quality of the land. He complained that Huckstep had misrepresented the quality of the land; that there were more rocks upon it than he had supposed ; that Huckstep told him there were fruit trees on the land, which was untrue. For these reasons the instructions asked by the plaintiff in error, and refused by the court, ought to have been given. (See this case in 22 Mo. 415.) If the declarations of Huckstep to Tracy were any notice at all, it can only be understood as a notice of tenancy of Vaughn under Huckstep, and not as an adverse possession. (See Beatie v. Butler, 21 Mo. 313.)

      Morrowf for defendant in error.
    I. The paper writing offered in evidence was properly admitted without proof of its execution. Its execution by Huckstep was alleged in the petition and not denied in the answer. (See Practice Act; Sess. Acts, 1849, p. 80, sec. 7.)
    II. Open and notorious possession of a tract of land by a party claiming title under an unrecorded deed, and the knowledge of such possession, being fastened upon a subsequent purchaser at or before the time of such subsequent purchase by the verdict of a jury, affect each subsequent purchaser with actual notice of the prior purchaser’s title. (Vaughn v. Tracy, 22 Mo. 415 ; Sanders v. Brant, 10 Howard, 348.)
   LEONARD, Judge,

delivered the opinion of the court.

When this case was here before, (22 Mo. 417,) we remarked that we all concurred in reversing the judgment on the ground that possession was not, as the circuit court seemed to suppose, as a mere matter of law, actual notice within the meaning of the recording actsand we then observed that we deferred, until all the circumstances of the transaction should be fully developed in a new trial, our opinion on the question “ how far and under what circumstances the fact of open and notorious possession and apparent ownership of real property was to be considered evidence of actual notice.” A majority of the judges then intimated their opinion that the actual notice of the statute was a fact to be proved as any other fact, and that, as men rarely purchased farms without examining them personally, the fact of possession might, under ordinary circumstances, be fairly presumed to have been within the purchaser’s knowledge when he bought; and that in this state, where the land is generally in the occupation of owners in fee,-if knowledge be brought home to the purchaser that a third person is in tlie possession and apparent ownership of land, it ought, under ordinary circumstances, to be deemed sufficient information to the second purchaser that the possessor is the owner in fee under a title derived from the former owner. They also remarked substantially that the circumstances might be such as to show that the purchaser did not in fact know that any third party was in possession, or, if he did know it, they might have shown that his occupation was not as owner; and that in such cases the jury could not find the fact of actual notice.

This new trial has now been had, and the evidence given was to the effect that there was a house and farm on the laud; that the plaintiff was at the time of the defendant’s purchase, and had been for eight or ten years previously, in the possession of a mill situate on the land, with an acre of ground attached to it, and that the defendant resided at the time he purchased in the county of St. Louis, about one hundred and fifty miles from the land, and had not been previously in the county where the land lay. The plaintiff then, in order to show that the defendant knew, at the time he made the purchase, that the plaintiff was in the possession of the mill and acre of ground, gave in evidence the statements of defendant — made on several occasions, in answer to the inquiry whether Huckstep, his grantor, had not told him before the sale that he (Huckstep) had sold the mill and acre of ground to the plaintiff — to the effect that “ he told him plaintiff had a mill on the land and would have to move it now.” Upon this evidence the court directed the jury that “ if the plaintiff was on the acre of ground and mill thereon at the time of the defendant’s purchase, and that fact was then known to the defendant, it was a sufficient notice in law of the plaintiff’s previous purchase so as to affect the defendant with notice of the plaintiff’s title,” and that “ possession of a tract of land by one claiming to have previously purchased it is sufficient evidence of such previous notice if such possession was known to the subsequent purchaser at the time of his purchase.” _

These instructions, taken in connection with the evidence, must, we think, have misled the jury, and for that reason the judgment will be reversed and the cause remanded. The question of fact for the jury was whether the defendant purchased with “ actual notice” of the prior unrecorded conveyance to the plaintiff; or, in other words, whether he believed, when he bought the land, that his grantor had previously sold the mill tract to the plaintiff. If there were no circumstances disclosed other than that it w;as the purchase of a farm, and that there was at the time a mill on the land, with an acre of ground attached to it, in the occupation of the plaintiff as the apparent owner, these facts would, in my opinion, have been competent evidence to show that the defendant purchased with actual knowledge of the previous sale to the plaintiff. They would, I think, have been sufficient in point of law to have been submitted to the jury for this purpose ; but whether when received they would have satisfied the jury of the truth of the alleged fact would be a matter for their consideration. In this state lands are usually found in the occupation of the owners in fee, and therefore we generally infer from this occupation and apparent ownership that the occupant is the real owner, and of course that he has a title to it derived from the former proprietor; but this possession and apparent ownership, even if brought home to the subsequent purchaser, do not constitute, in point of law, actual notice of the prior deed within the meaning of the statute. It is evidence of such knowledge, and under ordinary circumstances ought, I think, to satisfy a jury that the party purchased with knowledge of the prior deed, and such is the opinion expressed, or at least intended to be expressed, by the judge who delivered the former opinion in this case.

From the proof here, the jury might have inferred, and no doubt did infer, that the defendant made the purchase at a distance from the farm and without any personal examination of it; and the plaintiff therefore resorted to the defendant’s admissions in order to show his knowledge of the plaintiff’s possession and apparent ownership of the mill and ground. These admissions, however, instead of establishing that fact, were rather to the effect that the defendant’s information was that the plaintiff owned the mill, and was occupying the land upon which it stood at the will of the owner (Huckstep) ; or, in other words, that the plaintiff, instead of being in possession of the land as owner, was there as the mere tenant at sufferance of the owner, and was bound to remove his mill whenever Huckstep disposed of the land.

Upon this evidence the jury was told that if the plaintiff was on the land and the defendant knew it, this was sufficient notice in law of the plaintiff’s previous purchase, when of course such a possession, not as owner but as the mere tenant at will of the owner, afforded no evidence whatever of any conveyance to the plaintiff. The judgment must he reversed and the cause remanded.


author: Ryu and, Judge,

text:
    Phillebart, Plaintiff in Error, v. Evans et al., Defendants in Error.
    1. The fact that the return of service of process is defective is no ground for dismissing a suit.
    2. A defendant 'who appears and files an answer to a petition will be precluded from taking advantage of a defect in the return of service of process upon himself.

      Errror to Kansas City Court of Common Pleas.

      Hovey, for plaintiff in error.
    The defendant having appeared and answered could not avail herself of an imperfect return of the summons; and whether good or bad it had answered the end for which it was made. It had caused defendant to appear and answer. (See Bartlett v. McDaniel, 3 Mo. 40.)
    Napton, for defendant in error.
   Ryu and, Judge,

delivered tbe opinion of the court.

From the record in this case it appears that the marshal of Kansas served the petition and writ on the defendant and made his return thereon. The defendant appeared and filed her answer to the plaintiff’s petition. She afterwards moved for leave to withdraw the answer, and it was granted to her. She then moved to dismiss the plaintiff’s suit, and assigned as a reason therefor the insufficiency of the marshal’s return in the writ. The court sustained this motion and dismissed the plaintiff’s suit. This was excepted to by the plaintiff, who brings the case here by writ of error.

The judgment of the court below dismissing the plaintiff’s suit is erroneous and must be reversed. The defendant had made her appearance to the action and filed her answer. To allow her afterwards to withdraw the answer and move to dismiss the plaintiff’s action was improper. The court should have overruled her motion to dismiss. The writ is to bring the party into court, and when the defendant appears and files an answer there is no necessity to see whether the marshal’s return is in strict conformity to the law or not. The judgment must be reversed. (See Bartlett v. McDaniel, 3 Mo. 40.) An imperfect return of an officer serving a writ and petition is no reason for the court to dismiss the plaintiff’s suit. The judgment is reversed;

Judge- Scott concurring ; Judge Leonard absent.


text:
    The State, Appellant, v. Feaster, Respondent.
    1. An indictment founded on section 38 of article 2 of the act concerning crimes and punishments (It. C. 1845, p. 351) charged that the defendant did “ feloniously make an assault on the hody of one C. H. with a large stick of the length of four feet and the thickness of four inches, which stick he the said E. E. then and there held in both his hands, and with the stick aforesaid did then and there inflict on the hody ©f the said C. H. great hodily harm under such circumstances which would have constituted manslaughter if death had ensued, contrary,” &c.; held insufficient in that it did not charge the inflicting of the great hodily harm feloniously.

      Appeal from St. Clair Circuit Court.

      Ewing, (attorney general,) for the State.
    The indictment is sufficient. The facts and circumstances constituting the offence are averred in the indictment, and the expression “ under circumstances which would have constituted manslaughter if death had ensued” may be rejected as surplusage. (R. C. 1845, sec. 38, p. 351; Jennings v. The State, 9 Mo. 852.) It was not necessary to aver that the weapon used was a dangerous or a deadly one. This sufficiently appears from the description given in the indictment, and no more was required. (Jennings v. The State, 9 Mo. 852 ; 11 Mo. 579; The State v. Magrath, 19 Mo. 678.) If the word “ feloniously” appear in any part of the indictment it is sufficient. (1 Chitty 0. L. 242.)

      F. P. Wright, for respondent.
    I. The decision of the court below is correct. The indictment is clearly bad. The offence is not the assault but the bodily harm inflicted. Bodily harm is the accusation. It is not alleged that this was done feloniously. This omission is fatal. An indictment for felony must always allege the fact to be done feloniously. (2 Hale, 184; 2 Hawldns, 320, § 55 ; 9 Mo. 730 ; Wharton, 196 ; 1 Breese, Ill., 199.) The term felony originally denoted the penal consequences of the crime, but by long usage it is now employed to signify the crime itself. (4 Black. 69; 1 Chitty 0. L. 238.) Unless the bodily harm was inflicted feloniously it was not indictable. The term “ felonious” is the only one appropriated by the law to express the nature and character of this accusation. It being.omitted in the indictment, it presents a case punishable only before a justice of the peace.
    II. The description of the offence is not sufficient. It amounts to this and no more: “ Elbert Foster made a felonious assault on Carrol Harper with a large stick, and with the stick did inflict on the bod-y of Carrol Harper great bodily liarm.” All the facts necessary to constitute the offence must be charged by express averment or the judgment will be arrested. (Kit v. The State, 11 Humph. 167.)
   Ryland, Judge,

delivered the opinion of the court.

The defendant Feaster was indicted at the March term of the Circuit Court for Hickory county, in the year 1855. At the September term he appeared to the indictment and filed his petition for a change of venue, which was granted and the venue changed to the Circuit Court of St. Clair county. At the October term, 1855, of the Circuit Court for St. Clair county, the parties appeared and the case was continued until the next term. At the May term, 1856, the defendant filed his demurrer to the indictment, which was overruled. The case was then continued from term to term until the March term, 1857, when the defendant pleaded not guilty to the indictment, and a trial was had. The defendant was convicted by the jury and filled. He afterwards moved in arrest of judgment, which motion being sustained, the State excepted and brings the case here by appeal.

The only questions in the case arise on the indictment. The indictment is founded on the 88th section of article 2 of the act concerning crimes and punishments, (R. C. 1845, p. 351,) which declares, If any person shall be maimed, wounded, or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned, shall, in cases not otherwise provided for, be punished,” &c. The indictment charges “ that Elbert Feaster, with force and arms, did then and there feloniously make an assault on the body of one Carrol Harper with a large stick, of the length of four feet, and the thickness of four inches, which stick he, the said Elbert Feaster, then and there held in both his hands, and with the stick aforesaid did then and there inflict on the body of the said Carrol Harper great bodily harm, under such circumstances which would hare constituted manslaughter if death had ensued, contrary,” &c.

The offence under this section is liable to the punishment of imprisonment in the penitentiary, and consequently under out law is a felony; for all offences whose punishment may be by confinement in the state penitentiary are declared by the statute to be felonious. The offence under this section is not the assault; it is the great bodily harm inflicted.

Now it is the well settled law that in indictments for felonies the act charged which constitutes the offence must be alleged to have been done feloniously. In this indictment now under consideration the pleader has omitted to charge that the act done which makes the offence was done felo-niously, and it is not enough to aver that the assault was made feloniously. This is a fatal objection. The court below therefore committed no error in arresting the judgment in this case.

Judge Scott concurring,

the judgment is affirmed.


author: Scott, Judge,

text:
    Ellis, Respondent, v. Andrews, Appellant.
    1. A bill of exceptions can not, except by consent, be allowed and signed subsequently to the term at which the trial is had.
    2. "Where it is agreed that the bill of exceptions may be allowed and filed within ten days after the end of the term, and it is not allowed and signed within the ten days, it can not be afterwards allowed and signed.

      Appeal from Cooper Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Stephens Sf Vest, for appellant,
    cited Stephen on Pleading, 160 ; 3 Bouv. Inst. 261; Chitty PI. 518 ; Wood v. Steamboat Eleetwood, 19 Mo. 529; Swartz v. Chappell, 19 Mo. 304; Eucker v. Eddings, 7 Mo. 115 ; Brighter v. Cooner, 18 Mo. 347 ; Foster v. McO’Blenis, 18 Mo. 88.

      Douglass and Hayden, for respondent.
    Tlie bill of exceptions should have been presented and signed in term, or ten days thereafter, as counsel agreed it should be. The bill of exceptions was not presented and signed during the term, nor within ten days thereafter, and was signed against the consent of respondent. The bill of exceptions not having been presented and signed in proper time should be stricken from the record, and the judgment below affirmed. (Farrar v. Finney, 21 Mo. 569.)
   Scott, Judge,

delivered the opinion of the court.

It has long been settled that a bill of exceptions must be signed during the term at which the cause is tried. This is not only the practice here, but also in other states. In England, where the statute first allowing a bill of exceptions to the parties to a suit had its origin, it is held that courts are not bound to seal a bill of exceptions tendered at the succeeding term of the court. (Wright v. Sharp, 1 Salk. 288 ; Sikes v. Ransom, 6 Johns. 279; 9 Johns. 346; Pomeroy v. Selmes, 8 Mo. 132.) The rale has been so far departed from that it is permitted to sign a bill of exceptions at a period subsequent to the term at which the trial takes place, when the consent of the parties is given to such a course and that consent is made a matter of record. (Pomeroy v. Selmes, 8 Mo. 732.)

In the case before us it was agreed that the bill of exceptions should be made out and filed within ten days from the end of the term. It was not done within the time agreed upon, but afterwards and against the consent of the plaintiff. It is now proposed by affidavits to show why the bill of exceptions was not signed within the stipulated time. It is obvious that such a course wohld be a departure from the practice, which requires that when a bill of exceptions is not signed during the term at which the trial takes place, it must appear by the record that consent was given that it should be signed at a subsequent period. This bill of exceptions is signed after the trial term and against the consent of the party to be affected by it. It is easy to see the consequences which may result from such a practice ; we would not know when a suit was terminated. After a cause is reasonably supposed to be at an end, a suit or strife is commenced in this court in order to have it reversed.

If this practice is countenanced, then, had the judge who tried the cause refused to sign the bill, the party would have a right to come here by a mandamus to compel him to do so. Are judges to be permitted to sign bills of exceptions when they please — bills of exceptions that may be prepared without the knowledge of the party to be affected by them and against his consent ? This would be a dangerous engine in the hands of any judge, and, if allowed, suitors would not know when their controversies were at an .end. The remark of Judge Tompkins, in speaking in relation to this subject, is strictly correct, “ that he who defers till another time to do what he ought to do at the present time, must take to himself all the consequences of his negligence.” (Consaul v. Lidell, 7 Mo. 257.) This bill of exceptions is stricken out of the record, nothing beyond the control of the party appearing to have prevented its being signed within the time agreed upon.

As the only errors relied upon for a reversal of the judgment are assigned, upon matters appearing only by the bill of exceptions, and as the bill is stricken out, the judgment will be affirmed.

Judge Ryland concurring; Judge Leonard absent.


text:
    Franse, Plaintiff in Error, v. Owens et al., Defendants in Error.
    1. Where an action is commenced in a justice’s court by process, it is not necessary that a confession of judgment should be in writing.
    2. Where a defendant in a justice’s court appears at the return day of process and confesses a judgment, and an entry of such confession is made upon the justice’s docket,.an execution may lawfully issue, although no entry is made upon the docket of a judgment upon the confession.
    3. Where a defendant in a suit before a justice’s court is served with process in the township in which the suit is begun, it will be presumed, in the absence of evidence to the contrary, that he resides in such township; the return of a constable of such township on an execution directed to him of “ no property found of defendant in said township whereof to levy,” is sufficient to warrant the issuing of an execution from the office of the clerk of the circuit court.
    4. An authentication of a transcript of a judgment by a justice of the peace in the following form: “ I certify that the foregoing contains an entry made on my docket. [Signed] A. B., J. P.,” is sufficient.

      Error to Cass Circuit Court.

    This was a suit to set aside a conveyance made by one Mead of a tract of forty acres of land, dated September 20th, 1852, on the ground that it was a voluntary conveyance, and made to defraud the creditors of said Mead, of whom one Fonda was one. Plaintiff claimed title as a purchaser at sheriff’s sale under an execution issued from the office of the clerk of the Cass Circuit Court, upon a transcript of a judgment of a justice of the peace of Cass county, in favor of Abram Fonda. The said execution was issued November 24th, 1854. The plaintiff received a deed from the sheriff. At the trial the plaintiff, Franse, offered in evidence a certified copy of the transcript of a judgment against said Daniel Mead, in favor of Abram Fonda, rendered by a justice of the peace in Cass county, and filed in the office of the clerk of the Circuit Court of Cass county, February 28, 1854. This transcript is as follows :
    “ Abram Fonda v. Daniel Mead and W. G-. Gardiner. Debt, $30 ; damages, $5.90 ; justice, 75 cents ; constable, 50 cents. In justice’s court. Action on note of hand and reads thus: ‘ October 6, 1849. Twelve months after date, we promise to pay to the order of Abram Fonda $57.49, without defalcation or discount. [Signed] Daniel Mead, W. G. Gar-diner.’ The above note credited Oct. 4th, 1850, by $22.50 ; do. December 18,1851, by $5.90. Summons issued 27th day of July, 1853; returned 6th August, 1853; Elijah Owens deputised to execute and return said writ. August 6th, 1853 — summons returned executed by reading the same to Daniel Mead, in Mount Pleasant township; and the said Daniel Mead appeared and confessed judgment on said note for the sum of $30 debt and $5.90 damages — one dollar cost. [Signed] Hiram Stephens, J. P.
    “ Issued execution August 6th, 1853 — and given to S. L. McGuire, constable of Mount Pleasant township, returnable in sixty days from the date. This execution returned with £ no property found belonging to defendant to levy the same in Mount Pleasant township. S. L. McGuire, constable. Mount Pleasant township, this 6th October, 1853.
    “ I certify that the foregoing contains an entry made on my docket. February 23, 1854. [Signed] Hiram Stephens, J. P.
    i£ [Endorsed.] The foregoing transcript was filed and recorded on the 23d day of February, 1854. [Signed] H. Fin-ney, clerk.
    ££ State of Missouri, county of Cass, ss. I, Hamilton Fin-ney, clerk of the Cass Circuit Court, do hereby certify, that the foregoing is a full, true, and perfect copy of the transcript filed in my office, in the above entitled cause, wherein Abram Fonda is plaintiff, and Daniel Mead and W. G. Gar-diner are defendants. In testimony whereof, &c. [Signed] Hamilton Finney, clerk. (Seal.)”
    The court, on the objection of defendants, ruled out the said transcript; whereupon the plaintiff took a nonsuit with leave to move to set the same aside. A motion to set aside the nonsuit was overruled.

      Peyton and Napton, for plaintiff in error.
    I. Both the certified copy and the original transcript offered in evidence show that the justice had jurisdiction of the subject matter and person of defendant. The action against Mead was commenced by process; the same was served upon him ; he appeared and confessed judgment; an entry of the confession is made on the docket, and though no entry of judgment was rendered by the justice upon the confession, yet the court will give the force and effect of one to the confession so soon as the same is entered on the docket of the justice. (Davis v. Wood, 7 Mo. 162; Rutherford v. Winn, 3 Mo. 14; Chamberlain & Churchill, v. Mammoth Mining Co. 20 Mo. 96.) The justice had the statutory right to empower a person other than the constable to serve process upon defendant; nor is it necessary that the justice should state upon his docket that this was done at the “ request and risk” of plaintiff. The transcript shows that the person who executed the writ upon defendant was authorized to do so by the justice, and this is all that it is needful to show. Again, it will be seen from the transcript that the demand of Fonda, the plaintiff, was filed with the justice, and that a summons issued thereon against Mead to answer the complaint of plaintiff, and this, it is contended, is of itself directly within the meaning of this law the commencement of ah action by process ; and if Mead, without any service whatever, had voluntarily appeared to the writs and made oral confession of judgment, the same would have been good. In this case service was had and by a person to whom the law gave all the authority of a constable. (R. C. 1845, tit. Justices’ Courts, art. 2, sec, 17 ; 6 Mo. 57.)
    II. The transcript should have been admitted as evidence in the Circuit Court, first, to show a judgment before the justice, and then that an execution was issued by the justice and returned that defendant had no property whereof to levy. The transcript showed both these facts, and ought to have been read as evidence. The return of the sheriff is sufficient and shows a full compliance with the law. The statute in no case requires that the execution issued by the justice shall be executed throughout the county before one can be issued on the transcript in the clerk’s office. A constable has no right to levy an execution in any part of the county; certainly it is not his duty to do so, save only in the cases pointed out in the statute. The first is where the defendant resides out of the township where judgment was rendered; second, where he has goods and chattels out of the same, but in a different township; and, third, when there are several defendants residing in different townships. In these cases, and only then by the consent and at the option of plaintiff may he execute the writ in any part of the county. In all other cases the constable is not bound to go out of the township. If the return is insufficient, it was the duty of defendant to have appeared at the return day of the writ and made his motion to quash the same; failing, and not even now complaining, strangers to the judgment will not be allowed to avoid the sale and whole proceedings under the transcript on account of any irregularity in th.e return of the constable. If the return of the constable be wholly illegal, yet the transcript ought still to have been admitted as evidence in order to show the rendering of a judgrhent. The plaintiff might then prove that another execution issued and was properly returned. (Crowley v. Wallace, 12 Mo. 143; R. C. 1845, tit. Justices’ Courts, art. 7, sec. 6; R. 0. 1845, tit. Justices’ Courts, art. 6, sec. 18 ; Coonce v. Munday, 3 Mo. 265.)
    III. The certificate put by the justice to the transcript is a good one. The justice at the bottom of the transcript certifies that the “ foregoing contains. an entry made on my docket.” The court will have regard to the substance and meaning of the certificate and not the mere technical form; the one appearing to the transcript means that the whole statement above it is a copy of an entry in his docket. At any rate the justice certifies that the “ foregoing” contains an entry made on his docket, and upon looking at the transcript we find an entry to which this court will give the force and effect of a judgment. The statute only requires that the justice should give a certified transcript of the judgment and nothing else. It is very plain however that the justice in liig certificate treats the whole transcript as one entry — means t.o and does certify that every part of the same is copied from the docket. It is submitted the certificate is good. (Lee’s Adm’r v. Lee, 21 Mo. 531; Gipson v. Allen, 10. Mp_. 303 ; R. C. 1845, tit. Justices’ Courts, art. 6, sec. 17.)

      Sheley, for defendants in error.
    In this case the justice’s execution was issued to the constable of the township in which the defendant was served. In such cases the execution was co-extensive with the county, and the return must show that there were no goods or chattels of the defendant in the county; but the return is confined to the township, and for aught that appears the defendant had ample means in the county; the court therefore properly rejected the transcript. (R. C. 1845, p. 660-1, secs. 3-6 ; Cooiice v. Munday, 3 Mo. 264.)
    II. The transcript shows no judgment. It only shows that the defendant made his voluntary appearance after process was issued and confessed the debt, but there was no entry of judgment by the justice.
    III. The justice’s certificate to the transcript was insufficient. He ought to have certified the transcript was a true copy of the judgment in the case referred to.
   Scott, Judge,

delivered the opinion of the court.

In justices’ courts, where the action is commenced by process, it is not necessary that a confession of judgment should be in writing, signed by the defendant and filed by the justice. The statutory provision on this subject is explicit. In proceedings in justices’ courts forms are disregarded, and it is not expected that entries should be made with the accuracy and precision which are required in recording the acts of courts of record. In the case of Rutherford v. Winn, 3 Mo. 12, this court disregarded the objection that no judgment was entered on a verdict rendered in a justice’s court. We see no distinction between that case and one where no formal judgment is entered on a confession. The defendant appeared at the return day of the process and confessed a judgment for specific sums for debt, damages and costs. This was sufficient whereon to issue an execution.

The statute authorizing the transcript of a justice’s judgment to be filed in the office of the cleric of the Circuit Court only requires the execution to be issued by the justice to be directed to the constable of the township in which the defendant resides. The defendant was served with process in the township in which the suit was begun, and in the absence of all evidence to the contrary we must regard that as his place of residence. There is nothing in the record showing that an execution out of the township would have been available. We are therefore of the opinion that the return of the constable on the execution, that there were, no goods nor chattels of the defendant whereof to levy the same in the township to which the writ was directed, was sufficient to warrant an execution from the circuit court clerk’s office, and that it was not necessary that the return should show that there were no goods or chattels of the defendant in the county whereof a levy might be made.

We are of the opinion that there is no weight in the objection to the authentication of the justice’s transcript. The following is the act of authentication: “ I certify that the foregoing contains an entry made on my docket.” This certificate is made to a copy of the judgment and the subsequent proceedings thereon. The statute does not require that a full and perfect record of the proceedings in the justice’s court should be filed in the office of the clerk of the circuit court; “ a transcript of the judgment” is all that is exacted. We see from the paper that it is in the usual form of transcripts made by justices. It is a transcript of the judgment, and the thing itself being seen, we do not understand why it should be rejected as evidence because the justice in certifying it has failed to term it a transcript.” The withholding of all power from justices of the peace to interfere with their records when once made up may have been the reason that the legislature deemed a transcript of the judgment a sufficient foundation for an execution. Reversed and remanded;

Judge Ryland concurring; Judge Leonard absent.


text:
    Brown, Respondent, v. Lewis et al., Appellants.
    1. Where there is no evidence -whatever tending to show a liability on the part of one of two defendants, the court should, when requested so to do, direct the jury to find a verdict in his favor.
    2. It is error to give instructions where there is no evidence to support them.

      Appeal from Platte Circuit Cowt.

    This was a suit originally brought before a justice of the peace by E. W. Brown, against Sarah J. Lewis and Daniel P. Lewis, to recover the sum of $75, the alleged value of services rendered by plaintiff in treating at his eye infirmary an affection of the eyes of a child of the defendant Sarah J. Lewis. There being no evidence whatever introduced by plaintiff showing or tending to show a liability on the part of the defendant Daniel P. Lewis, the defendants moved the court to direct the jury to find a separate verdict as to the said D. P. Lewis, in order that his co-defendant might have the benefit of his testimony. The court overruled the motion.

      Spratt and Merryman, for appellants.
   Ryland, Judge,

delivered the opinion of the court.

The court below should have directed the jury to pass upon the case, so far as it concerned the defendant Daniel D. Lewis. There is not a particle of evidence preserved on the record showing his connection with the contract made between plaintiff Brown and Sarah Jane Lewis. It is manifest that he was made a party improperly. He made no contract with Brown on the subject of medical service by Brown to be bestowed on the child of Mrs. Sarah Jane Lewis. He must have been joined in the suit by plaintiff from improper motives, to exclude his testimony; and it was the duty of the court to counteract such trickery and device, by directing the jury to pass on the defendant Lewis — instructing them that there, was no testimony in the case connecting or showing that Daniel P. Lewis had any thing to do with making the contract, or was in any manner bound by it.

Under the English law this rule of practice was confined to actions against wrong-doers, and was not applied to actions upon contracts, except, perhaps, in cases where one oí several defendants has pleaded a personal discharge, as a certificate in bankruptcy; (see Currie v. Child, 3 Camp. 283; Emmet v. Butler, 7 Taunton, 599 ; 1 Moore, 332; Bate v. Russell, Moody & Mal. 332 ;) but with us, under our law— tlie altered condition of it in relation to suits upon joint indebtedness — it is otherwise. (Campbell et al. v. Hood, 6 Mo. 211; Hood v. Mathis, 21 Mo. 308.) In the case of Hood v. Mathis this subject has been fully discussed, and it is now well settled that the rule is the same with us as well in actions on contract as of torts. The court therefore erred in overruling the defendant’s motion to direct the jury to pass on the defendant D. P. Lewis.

As the judgment below must be reversed, and the case will have to be retried, we will notice some other matters complained of by the appellants. It was competent to the defendants to prove by the opinions of physicians the time it was supposed to take in order to cure the child’s eyes. It was also competent and highly important to prove the condition of the child’s eyes when taken away from the plaintiff’s infirmary, and whether they were cured or were lost to the child. The instruction given by the court for plaintiff is calculated to mislead the jury ; there was no evidence authorizing the court to bring to the jury the subject of the “ defendants, or either of them, preventing the plaintiff from curing the child by taking the child away.” This instruction was from the state of the evidence improper. These matters are mentioned by us in order that the court may avoid the errors complained of on the next trial. We barely mention them, and pronounce the rulings of the court on them to be erroneous in order to avoid them in future.

Let the judgment be reversed and the cause remanded;

Judge Scott concurring.


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    The State, Respondent, v. McClure, Appellant.
    1. The Supreme Court -will not interfere and grant a new trial on the ground that the verdict of a jury was against the weight of evidence.
    2. Whenever instructions given to a jury as a whole fairly present the law of the case to the jury, the Supreme Court will not reverse for a defect or slight impropriety in any particular instruction.
    3. There may he an assault with intent to kill, although there is no striking or wounding; it would be error to instruct the jury that if the defendant might have struck and did not they should find defendant not guilty.

      Appeal from Laclede Circuit Court.

    Wright, for appellant.
    I. It is submitted whether such a “ strong and unequivocal” case is not here presented as to require this court to direct a new trial, regardless of the errors of the court below in giving and refusing instructions, but on account of the entire failure to prove a felonious assault. The prosecutor was too much intoxicated to either observe or recollect what transpired at the time; and even he says that he does not know that defendant struck at him or intended to strike at him. (2 Phil. Ev. 763; 2 Pay, 202.) Taking his evidence as a correct detail of the facts, it would amount to no more than an ordinary assault and battery. His evidence did not even tend to prove a felonious assault. The evidence of all the witnesses except the prosecutor showed there was not even a common assault. An assault is an offer to do a corporeal injury to another, with the present ability to do so. Defendant was about ten feet from the prosecutor when he raised the stick. He was not within striking distance, and readily laid down the stick when told to do so. It devolved on the State to prove an intention not only to do an injury, but an intention to kill. (3 Greenl. Ev. § 61, 17.)
    II. The first instruction given on the part of the State is wrong. The natural consequence of even striking with a stick is not to kill. It was the peculiar province of the jury to determine the intent. The instruction was a comment and an erroneous comment on the evidence, and evidently controlled the jnry in finding their erroneous verdict. The law is that the court shall not comment on the evidence, or charge the jury as to matter of fact, unless requested. (R. C. 1195, sec. 31; State v. Dunn, 18 Mo. 419.)
    III. The court erred in refusing the first instruction asked by defendant. If the defendant could have struck the prosecutor without hindrance, and did not do so, it conclusively rebutted any intention to kill.

      Ewing, (attorney general,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted for an assault with intent to kill. He was convicted and fined. He moved for a new trial, which was overruled; he then moved in arrest of judgment, which was also overruled. He excepted and brings the case here by appeal.

In this court the appellant has made three points, on each of which he relies for a reversal. The first is that there is no evidence warranting or authorizing the conviction; the second, that the first instruction given on the part of the State is wrong ; and the third, that the court erred in refusing the first instruction asked by the defendant. From an examination of the testimony preserved in the bill of exceptions, this court clearly perceives that there was testimony on the part of the State from which the jury might well convict. There was also testimony which would have justified the jury in acquitting. The jury was the proper tribunal to weigh the evidence; they might give to the evidence on behalf of the State more credence than they did to the evidence of the defendant. The case was left to the jury and they found the defendant guilty, and there was evidence from which such a finding could be supported. The court will not interfere in such cases. This is not like the case of the State v. Gresson, 19 Mo. 247. In Gresson’s case there was no evidence of the crime. Here the jury might have found either way. We will not for this reason reverse.

The second point. The instruction complained of is as follows : “ If the jury believe from the evidence that the defendant attempted to strike Day with a stick, and at the time he made the attempt he was near enough to hit him, and that the stick was a dangerous or deadly weapon or calculated to produce death, and that there was no justifiable excuse for such attempt to strike with such a weapon, and [sic] under such .circumstances, is evidence from which the jury may infer that such assault was made with intent to kill.” Now whatever might be urged against this instruction standing alone, it ceases to have any improper effect when united with the instruction given for the defendant, as follows : “ Unless the jury believe from the evidence that the defendant attempted to strike Reuben P. Day with a stick and with the intent to kill him, and that at the time the defendant made the attempt he was near enough to hit Day, and that the defendant could have killed Day with the stick, they must acquit the defendant..” These instructions together put the law of the case fairly before the jury, and no injurious effect from the first one could have been left on the jury when the last was given. Whenever the instructions as a whole fairly present the law of the case to the jury, the court will not reverse for any defect or slight impropriety in any particular instruction.

There is no error in the court’s refusing the defendant’s first instruction. “ If the jury believe from the evidence that defendant could have struck Day with the stick, and did not do it, they will find defendant not guilty.” This instruction is not the law ; it was designed to tell the jury that whenever there was power and opportunity to commit a battery, and it was not committed, there could be no assault. A man may assault another with the intent to kill him, and not perpetrate the offence of striking or wounding him.

These are all the objections urged in this court by the appellant’s counsel for a reversal of the judgment. The newly discovered evidence, and the motion in arrest, are not urged here, but may be considered as abandoned by the appellant, he punishment is less than that allowed by law ; but the defendant’s counsel remarked that the punishment was declared under the revised code of 1855, at the request of the defendant, and therefore does not urge that matter as an error; it is in his favor, and he does not complain of it. It is necessary however to remark, that whenever the punishment for an offence committed under the law previous to the revised code of 1855 is different from that prescribed by the revised code of 1855 for the same offence, and a prosecution-is commenced under the law previous to 1855, it is necessary that the prayer of the defendant for punishment under the law of 1855 should appear upon the record, as well as the order of the court changing the punishment. Upon the whole case, we are inclined to affirm the judgment;

Judge Leonard concurring,

the same is affirmed.


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    Young et al., Plaintiffs in Error, v. Smith et al., Defendants in Error.
    1. Courts may regulate in their discretion the order in which testimony shall he received; hence it is not error to refuse to permit a plaintiff to road to the jury as evidence in chief portions of a deposition taken by himself, and to reserve the remainder as rebutting testimony.
    2. Great latitude is allowed in the cross-examination of witnesses.
    3. In a suit against A. and B. as partners, the declarations of A. are inadmissible in behalf of B. to disprove the partnership alleged.
    4. Persons may be held liable as partners to third persons, though not as partners as between themselves.

      Error to Jackson Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Ilovey, for plaintiffs in error.
    I. The Circuit Court ought to have permitted the plaintiffs to read a part of Smith’s deposition in chief, and to reserve a part as rebutting evidence, because the portion sought to be read was strictly evidence in chief, and the portion sought to be reserved was strictly rebutting evidence, and not necessary to the narrative of the witness. (1 Greenl. Ev. secs. 51 and 52; R. C. 1845, tit. Depositions, sec. 29, p. 419; Calhoun v. Hays, 8 Watts & Sarg. 130.)
    II. The court below ought to have stricken out all that part of the cross-examination of C. M. Smith commencing at the sixth interrogatory, and from thence to the end of his deposition, because the same was neither a legal cross-examination nor competent evidence in chief for the defence. (1 Greenl. Ev. sec. 448-9.)
    III. The acts and conversations of Smith and Huffaker, between themselves or others, were incompetent evidence when ofFered in defence, because the same were neither a part of the res gesta, nor facts of which third persons were presumed to have notice. (Story on Partnership, sec. 63 ; Winship v. U. S. Bank, 5 Peters, 529 ; Allen v. Duncan, 11 Pick. 308; Woods v. Clark, 24 Pick. 35.) The defendants could not be witnesses for each other, therefore their un-sworn statements, as introduced by defendants, are only the more illegal. (1 Greenl. sec. 329.)
    IY. The court below ought to have given the first instruction asked by plaintiffs.
    Y. The court below ought to have given the ninth and tenth instructions asked by plaintiffs. (Story on Partnership, sec. 63 ; Dennistown et al. v. Debuys et al. 9 Mart. 26.)
    YI. The coui’t below erred in giving the second instruction asked by defendants, because the same is argumentative, and permits the jury to discard evidence upon their own private prejudices outside of the testimony. (2 Starkie Ev. 686 ; 1 Greenl. Ev. secs. 34, 35.)

      Napton, for defendants in error.
    I. To determine the order in which testimony shall be received is within the discretionary regulation of the Circuit Court, and unless some manifest injustice has resulted from the exercise of this discretion the Supreme Court will not interfere. It is not easy to see how the merits of this case could have been affected one way or the other by the order in wbicli the depositions or portions of them were read. (Rucker v. Eddings, 7 Mo.-.)
    II. There was no error in refusing to strike out the cross-examination of Smith. Such examinations are designed to question the veracity or memory or honesty of the witness, or explain or modify or refute his statements, and the greatest latitude is allowed and extraneous and collateral inquiries may be made, subject to the restriction that a matter entirely foreign to the issue can not be inquired into merely with a view to contradict what the witness may- testify to on such collateral matter. (1 Greenl. Ev. sec. 448-9; 2 Phil. Ev. p. 726, 733.)
    III. The testimony for defendants in relation to the acts and sayings of Huffaker and Smith were legitimate proof. 1st. They constituted the res gestee, and apart from the fact that Smith was a party to the suit, and viewing him as a mere stranger, his acts and declarations were evidence for Huffaker. The material question in this case was, whether a partnership existed between Smith and Huffaker. This was affirmed on one side and denied on the other. The acts of Huffaker and Smith during the period of the alleged partnership, in the course of the trade in which they were certainly engaged, and the declarations of either explanatory of those acts, and cotemporaneously made with them, are evidence. They are verbal acts. (1 Greenl. Ev. secs. 108, 109 ; ib. sec. 171. This is the law of this court: Nolle v. Callaway Co. 11 Mo.-; Turner v. Belden, 9 Mo.-. This is the law of Pennsylvania: Saltmars v. Tompkins, 14 Serg. & Rawl. 280; and of Alabama — Tompkins v. Reynolds, 17 Ala. 109 ; Thomas v. De Graffanied, 17 Ala. 602 ; 10 Ala. 430 ; 16 Ala. 818; 8 Ala. 650 ; 17 Ala. 362; Hooper v. Edwards, 20 Ala. 582; and of New Hampshire — Plumer v. French, 2 Foster, 450 ; and of Connecticut — Comins v. Comins, 21 Conn. 413; Russell v. Frisbe, 19 Conn. 205; and of Vermont — White v. Morton, 22 Yerm. 15 ; 7 Wash. -; Holbrook v. Murray, 20 Yerm. 525.) 2d. These acts and declarations were legitimate as rebutting testimony. (Foster & F. v. Nowlin, 4 Mo. 24; Wilson’s Adm’r v. Owens, 5 ib. 40; Wheaton y. Weld, 9 Humph. 773.) 3d. They were legitimate to impeach the witness Smith, who was also a party, and adverse to his co-defendant in fact; (see 1 Greenl. sec. 462 ;) and even if improperly admitted, they are no ground for reversing the judgment on the last head.
    IY. The ninth and tenth instructions asked by plaintiffs and refused by the court raise the same point as the motions to exclude evidence in the progress of the trial, and therefore have been considered already.
    Y. The first instruction asked by plaintiffs was rightly refused. It was either an abstraction outside the case, or it was calculated to mislead the jury. It was virtually telling them that whatever opinion they might entertain about a secret partnership between Huffaker and Smith (which, as the court will see, was the only point in dispute,) they would still find for plaintiffs. In short, this instruction assumed as a conceded fact a matter about which there was no proof, viz., that Huffaker held himself out to the world as a partner; thus shifting the entire basis of the controversy.
    yi. Instruction No. 2, given for defendants, is unobjectionable, as will appear from inspection.
    YII. There is nothing in the point relative to newly discovered testimony.
    yill. Smith was not a competent witness. The case of Rich v. Hasson, 4 Sanf., N. Y., 115, under a similar statute, has so decided.
   RylaND, Judge,

delivered the opinion of the court.

We do not perceive what injury the plaintiffs below received by the court’s overruling their motion to be permitted to read only certain portions of the deposition of the defendant Smith, which the plaintiffs had taken, to the jury as evidence in chief, and afterwards to be permitted to read the balance of the deposition as rebutting testimony. We will not interfere in the discretionary determination of the lower court,' in such matters, especially where no injury appears to follow to either party. To say the least of this objection to the ruling of the court below, it is captious, and we give countenance to no such practice. The plaintiffs may begin their evidence at either end of the case; but when they offer a deposition and the court holds the same to be legal evidence, then the court may refuse with great propriety to let them pick out and.read certain portions at one time, and other portions at a different stage of the trial, to gratify the whim or taste of their counsel.

As to the plaintiffs’ second point about the cross-examination of Smith, we do not see how the overruling their motion to strike out certain parts of this deposition can injuriously affect them. Smith was their witness. They gave sanction to his veracity by taking his deposition ; and although the plaintiffs are bound, in proof of their case, to confine themselves to evidence relevant to the matters in issue, and the defendants restricted to the same, yet in cross-examinations questions as to collateral facts are often allowed ; nor is the rule confining the proof to the allegation strictly followed in cross-examinations, but great latitude of interrogation is permitted at times. In Lawrence v. Baker, 5 Wendell, 305, Savage, Ch. Justice, in delivering the opinion of the court, said : “ A witness is *not to be cross-examined to a distinct collateral fact for the purpose -of afterwards impeaching his testimony by contradicting him.” (1 Starkie, 134.) There may be cases where great latitude of examination may be permitted, arising from disposition, temper and conduct of witnesses, ■which can be regulated only by the discretion of the court, and for which it is difficult to lay down a precise rule. We will not therefore disturb the judgment for the overruling of this motion.

The third point taken by the counsel for the plaintiffs in error is fatal to the judgment below. This was a suit against Smith and Huffaker — the plaintiffs contending that Huffaker was a partner. Now it is often the case that the conduct of persons makes them stand liable to third parties as partners, when in reality between themselves there is no partnership. In this ease the main question in controversy is, not whether Smith and Huffaker were in reality partners trading and doing business as merchants under the name of “ C. M. Smith,” biit whether they so acted, so cax-ried on the business, as to induce third persons to look upon them as partners, to consider them as partners, and trade with them as partners. “ There is a just and marked distinction between partnership as respects the public and partnership as respects the parties; and a person may be held liable as a partner to third persons, although the agreement does not create a partnership as between the parties themselves. Though the law allows parties to regulate their concerns as they please in regard to each other, they can not by arrangement among themselves control their responsibility to others; and it is not competent for a person who partakes of the profits of a trade, however small his share may be, to withdraw himself from the obligations of a partner.” (8 Kent’s Com. 32.) Therefore, when the plaintiffs sued these defendants, it was not competent for them to give in evidence the declarations of Smith that Huffaker was not his partner. Judgment by default had been taken against Smith. Huffaker answered— denied the partnership, the execution of the note sued on, and his liability for the goods. Upon the trial, -Huffaker’s administrator (he having died after filing his answer) offered in proof the declarations of Smith. These were admitted against the objection of the plaintiffs. These declarations were not made in presence of these plaintiffs, but were in their absence. The court erred in receiving them. They were incompetent; they can not be considered as res gestee, as verbal acts. Such testimony would enable a crafty set of men to carry on an extensive operation as partners to the world, but when preparation was about to be made necessary to a failure, then one might withdraw with all the funds and stock, and honest, confiding creditors be met with the assertion “ that they never were partners; that there was no partnership,” and prove it when sued for their just demands by declarations made to and about each other during the time they were seemingly engaged as partners. No such declarations should have been received.

The fourth point made is settled by repeated decisions of this court since the new code of practice. (Rice v. Morton, 19 Mo. 279 ; 17 Mo. 367; Young et al. v. Croughton et al. and Rankin v. Harper, 23 Mo. 587.)

The fifth point regards the first instruction asked for by the plaintiff. “ 1st. This being a suit between Thomas Young and others, as plaintiffs, and Constantine M. Smith, and Chas. H. Thornton as administrator of Francis M. Huffaker, deceased, defendants, the jury are not called upon in this suit to settle the matter between said Smith and Huffaker as to whether they were partners or not as between themselves. 9th. All evidence offered by defendants of the admissions of said Smith and Huffaker, or either of their statements to one another as to third persons, when not made in the presence or hearing of plaintiffs, is not competent as against the plaintiffs, and the jury will find accordingly. 10th. The pi’ivate arrangements or contracts of Smith and Huf-faker, offered in evidence on the part of the defendants, or either of them, to which plaintiffs were neither party nor privy, are not competent evidence as against the plaintiffs to disprove the partnership of said Smith and Huffaker.”

The refusal of the court to give this instruction we consider was improper. The court ought to have so instructed the jury. It was necessary to place them in possession of the true nature of the case they were trying. They were not trying or settling the question of partnership between Smith and Huffaker so far as they were alone concerned, but whether the facts in proof were not sufficient under proper legal instructions to consider them partners as regarded the rights of third persons. This was error.

The sixth point relates to the ninth and tenth instructions above copied. The substance of these instructions ought to have been given. The ninth has an awkward conclusion which had better have been omitted, and to the tenth there is no legal objection.

The seventh point, that the court erred in giving the second instruction for the defendants, has nothing in it, and the eighth point only regards the newly discovered evidence, which was not sufficient to authorize the granting of a new trial. It is but cumulative. These are all the grounds relied on here by the plaintiffs’ counsel for a reversal of the judgment below, and we have disposed of them in a short and rapid sketch.

The defendants below contend that Smith was not a competent witness for plaintiffs. He is made so under the 11th section of the new code, art. 24. In looking over the whole case, we come to the conclusion that the court below committed error in admitting Smith’s declarations, that Huffa-ker was not his partner, to be given as evidence before the jury. It also erred in refusing the first, ninth and tenth instructions asked for by plaintiffs. The judgment must therefore be reversed, and cause remanded for further proceedings

; Judges Scott and Leonard concurring.


author: RyoaND, Judge,

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    Shackleford, Plaintiff in Error, v. Smith et al., Defendants in Error.
    1. Young et al. y. Smith et al., ante, p. 341, affirmed.

      Error to Jackson Circuit Cowrt.

      Hovey, for plaintiff in error.

      Napton, for defendants in error.
   RyoaND, Judge,

delivered the opinion of the court.

This case is very similar to the one of Young et al. v. Smith et al., just decided, and to the opinion therein given we refer as settling this. Here the seventh and tenth instructions, together with the first, were refused. The 1st, 7th and 10th are complained of by the plaintiff; in Young’s case the 1st, 9th and 10th. This is about the only difference, except in this case the entire cross-examination of Smith was admitted. Let the judgment be reversed, and cause remanded ;

Judges Scott and Leonard concurring.