text:
    Goodall v. Harrison.
    A declaration containing two counts, with one conclusion of damages, and the damages laid thus, $1000 — held, that the conclusion stands for the whole declaration, and being bad, both counts are bad.
    ERROR from the Circuit Court of Cole county.
   M’Girk, C. J.,

delivered the opinion of the Court.

Harrison brought an action of assault and battery against Goodall. The first plea is son assault demesne ; the second plea is that the plaintiff was about to enter the defendant’s shop violently, and to prevent that, he committed the assault, doing no unnecessary harm.

The third plea is, that molliter mamas imposuit, &c.

The fourth plea is, that plaintiff was about violently entering the house of defendant with a drawn knife, and to prevent himself from being stabbed, he flagellated Mm, &c.

Upon the three first pleas issues are taken to the country, and to the fourth there is a demurrer. On these issues the jury found the following verdict, to wit: eiThat the defendant is guilty of the several trespasses, and assaults and batteries, complained of b,y him, the plaintiff, and they do ¿Ssess the damages sustained by him thereby, to fifty-one dollars, besides costs.” Upon this verdict the defendant moved the Court to.grant a new trial, which was refused} and he then made a motion in arrest of judgment, for the following reasons :

First. Because the declaration is insufficient.
Second. The replication is insufficient, &c.

The errors assigned and relied on are, first, a general assignment. Secondly. That (154) the Court erred in giving judgment on the demurrer against defendant.

Third. That the Court erred in giving judgment for costs generally, without saying for how much.

The demurrer to the fourth plea was sustained. One of the causes for a new trial is, that the verdict is against law.

The points made in argument by the plaintiff in error, are, first, that though it be true that his fourth plea which is demurred to is had, yet the plaintiff’s. declaration is had, in this that the damages are laid thus, $1000.. Some other, objections are* taken to-the declaration, none of which will be noticed but the above one named.

It is insisted' by the counsel for the' plaintiff that the- damages in the declaration-should he expressed by words, and that it is not sufficient in a declaration to make the mark used by some accountants to express the sign of dollars; here this mark is used and prefixed to the number one thousand in figures. To prove this position correct, the counsel relies on the statute of this State, Rev. Code, 273. By the 16th section of the act it is declared, all proceedings whatsoever in any Court of this S;ate, shall be in the English longue only, and shall be printed or written in a good', strong, legible hand and characters, in words at length and not abbreviated, except; such abbreviations as are now commonly used in the English language; but it. shall! be lawful to express numbers by figures,” &c. It is believed that this statute- covers ■ this case; the character here used to express dollars is not a character known to the English language, as a character to eifross a word or a part of a wordbut that is. not material; the meaning of the act is, that the characters used to express words or - numbers must be strong, but the words expressed must be written at length'-except. numbers, &c.; here the number one thousand is well expressed by figures, but the ■ word dollars is wanting, and it would be idle to contend that this sign is an abbreviation of any word. The declaration in this particular is bad. But in this case the • fourth plea is also bad, but the judgment on the demurrer should have been for the • defendant. There are two counts in the declaration, and the first has no conclusion, of damages, and the conclusion in the second count meant and does stand for the-conclusion of damages for the whole declaration, otherwise the judgment for the plaintiff on demurrer ought to stand. For it is argued by Harrison’s counsel, and rightly too, that to consider this demurrer to act like a demurrer in any other case, it (155) would be considered as a demurrer to the whole declaration ; and in that case if there be one good count in the declaration, where the demurrer is to the whole, the demurrer must be overruled. But there being but one conclusion of damages in this case to apply to both counts, and that conclusion being bad, both counts are bad. This point being ruled for the plaintiff in error, it is unnecessary to decide the other material point relating to the verdict of the jury, more especially as we are not all, clear what the law is on that objection.

The judgment is reversed and sent back for a new trial; leave to amend in the! Court be.low is to be allowed.


source: Caselaw Access Project

author: M’Girk, C. J., Wash, J.,

license: Public Domain

text:
    Tramell v. Adam, black man.
    1, in an action of trespass, &c., to recover freedom, the plaintiff is not entitled to. damages after the institution of suit.
    2. The action may b£ sustained without the plaintiff Sling his petition and obtaining leave of the Court to sue^Ttjlfe'se are benefits intended for the plaintiff, and which he may waiver ' ^ - a
    3. An avermept-by the plairStafT “ that he was and is a free man, and that he is hold» en as a slaye,” is suflicienTcmder the statute, if proved, to sustain the action.

      i. In every civil ease, where a p'arty intends to rely on the statute of limitations, he . must plead it, otherwise He cannot avail himself of its provisions.
   M’Girk, C. J.,

delivered-the opinion of the Court.

This was an action of trespass and assault and battery and false imprisonment, instituted by Adam against Finley and Tramell to recover his freedom. The declaration contains one count charging, an assault and battery and false imprisonment, and alledges that at the time when, &c., he was and still is a free person, and that the defendants held and still do hold and detain him in slavery. The defendants pleaded not guilty. Upon which plea.issue was taken and tried. Verdict and judgment for the plaintiff, appellee in this Court. To reverse this judgment,.the defendant, Tram-ell, prosecutes his appeal.

Before the examination of the. witnesses, the defendant moved the Court to dis-(156) miss the suit from the docket, because no petition for leave to sue had been filed; and because no leave had been given.

It was in evidence on the trial that Tramell) t^he appellant, in the year 1810, resided at the United Stales Saline in. the- State of Illinois ; and that the appellee, who is a negro, lived there also in the possession of the appellant, and as his slave: that Tramell continned to reside at the said Saline till the year 1817, (Adam being still in his. possession,) when he removed to the Territory-(now State) of Missouri; and that since that time the appellee has been in‘the possession of said Tramell & Finley as a slave. Wo other evidence was given on either side;'

It is assigned for error;

First. That the Court refused to dismiss the suit from the docket on motion of the appellant, made befora the jury was sworn.
Second. Because Court refused to- instruct the jury,, that on the evidence they could not find a verdict for the appellee.
Third. Because the Court refused to instruct the jury, that unless they found an. assault and battery and false imprisonment of the plaintiff) by the defendant, they must find for the defendant.
Fourth. That the Court refused to instruct the jury, that if the plaintiff’s cause of action accrued, which was the last detainer, more than two years before the bringing;this action, they must find for the defendant, unless they find that the plaintiff’s case-comes within some of the exceptions in the proyiso of the statute of limitations.
Fifth. That the Court instructed the jury that if they found from the evidence that the plaintiff brought his slave into any part of the State of Illinois with the intent to reside and did reside as a permanent citizen, and there kept him, it amounted to a contract between the master and the slave, that the slave should he free, and that he accordingly became free.
Sixth. That the Court refused to instruct the jury that they could not find any damages for any assault and battery and imprisonment, happening since the commencement of this action, and that the Court gave the contrary instruction.
Seventh. That it appears by the record, that in this case there was no petition filed and leave given by the Court to sue, and on this the Court refused to arrest the judgment.

I will examine the sixth error first, which is, that the Court allowed the jury to assess damages down to the time of the trial. This we conceive is clearly erroneous, (157) and that the judgment as respects the damages alone ought to be reversed.

I will consider the first and seventh errors together, which relates to the petition and leave to be given by the Court, to persons claiming freedom before the suit can be instituted. The act of the Legislature passed the 30th December, 1824, provides by the first section, that persons held in slavery may petition the Court for leave to sue, and that if the Court think a good ground for freedom is shown, they will give leave, order process free of costs, and take steps tosecure to the petitioner sufficient liberty to attend counsel and Court, &c. The third section gives the form of the action,, which is assault and battery and false imprisonment j and says that the declaration shall contain an averment that at the time of committing the grievances he was and still is free. The fourth section requires the plaintiff to establish his freedom, and then says, “ that if the issue be found for the plaintiff, the Court shall give judgment of liberation.” It is argued that unless there is a petition and leave given to sue, that the judgment of liberation cannot be given, though a common law judgment for damages alone might be given. My view of this objection is this, that the petition and leave to sue are benefits intended for the plaintiff, and that he may waive them and rely on his own resources, or the goodness of the defendant and the common law powers of the Court to protect him, and that he may, if he aver3 in his declaration that he was free and still is free, have the statute judgment: there is, therefore, no error on this point.

I will consider the second, third, and fifth errors together, as I consider the question of the plaintiff’s right under the ordinance of Congress of 1787, alone is involved in them all. One question is, whether an actual assault, battery and imprisonment must be proved. If this were purely a suit at common law, and it were proved that the defendant held and exercised mere acts of ownership and authority over the plaintiff, as a slave, I should think the proof is sufficient to sustain the' charge, and that in this case, the plaintiff having averred that he was and is a freeman, and that he is holden as a slave, is enough under the statute, if proved, to sustain the action, and to warrant the Court to consider this a proceeding under the-statute, and to give the judgment of liberation: the defendant has all the benefit which the statute provided for him. As to the residue of these errors, the matter, has often been decided by this Court for appellee.

(158) As to the fourth point, I am of opinion that in every case, except in % criminal case, the statute of limitations must be pleaded } that nothing having been done, no question can be made on it.

On the sixth error the judgment is reversed as to damages alone, and that the cause is sent hack to the Circuit Court to inquire of those damages, and that the residue of the judgment is affirmed.

Wash, J.,

dissenting.

I dissent from the opinion above given, on the ground that the plaintiff could recover as at common lav.’ only; and at common Inw, the judgment for damages is-erroneous. To be entitled to the judgment of liberation, the petition should be filed agreeably to the provisions of the statute.


author: Wash, J.,

text:
    Hinch v. The State.
    £. An indictment against H. for perjury, committed upon the trial of P. for larceny> . should charge or show that the larceny for which P. was tried, was either made felony by statute,.or was such as at common law amounted to felony.
    3. It should be alledged that (he facts sworn to by H., and in which the perjury is charged to have been committed, were material upon the trial of P. (Note a.)
    ON ERROR from Howard Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

Hinch was convicted of perjury at the last term of the Howard Circuit Court, sentenced to receive twenty-five stripes, fined fifty dollars, and disqualified from being a witness, &c., agreeably to the provisions of the 56th section- of the act concerning crimes and punishment:, R. C. p. 299. Various errors are assigned,only two of which, will be now considered, without regard to the order in which they stand.

First. That the indictment does not show what species of larceny was charged against Patrick, upon the trial for which (he perjury is alledged to have been committed by Hinch y or that the .same was a felony, either at common law or by the statute.

(159’)' Second. That it is not sufficiently alledged in the indictment against Hinch, that the facts sworn to, and in which the perjury is charged to have been committed, were material upon the trial between the State and Patrick.

The indictment charges that the perjury was committed upon the trial of issues joined between the State of Missouri and one William Patrick, upon an indictment against said Patrick “ for larceny, and for feloniously marking a hog, and feloniously. altering the marks of hogs, with an intention of stealing the same,” &c. And that at and upon the trial of said issues, one Uriah Hinch did then and there, to wit: on the day and year aforesaid, at the county aforesaid, at the Court aforesaid, appear, and was produced as a witness for and on behalf of the said Patrick, against the said State of Missouri; and the said Hinch was then and there duly sworn, and did then and there take his corporal oath, as such witness as aforesaid, before the said Court, that the evidence that he, the said Uriah, should give to the Court and jury, sworn between the said State and the said William Patrick, should be the truth, the whole truth, and nothing but the truth, (the said Court then and there having competent authority to administer the said oath to the said Uriah in that behalf,) and the said Uriah being so sworn as aforesaid, it then and there became and was material to inquire,” &c.

The statute above referred to, R. C. p. 299, sec. 56, provides that if any person shall wilfully and corruptly commit perjury, &c., on any trial for felony,” &c., he shall be punished in the manner Hinch has been sentenced to be punished in this case.

In this case the indictment charges that Patrick was on his trial for larceny, &c., and it is insisted that all larcenies are felonies, and various authorities have been cited in support of the position. Wo definition of felony, however, as drawn either from the character of the crime or the punishment inflicted, is sufficiently comprehensive to cover this case. There are statute larcenies that are not made felonies by statute, and which were neither larcenies nor felonies at common law. In this case the indictment against Hinch should have charged or shown that the larceny for which Patrick was tried, was either made felony by statute, or was such as at common law amounted to felony.

On the second point, the words, it then and there became and was material to inquire,” refer plainly and directly to the county and Court at which Patrick was tried, and cannot by any fair construction be made to relate to the time of trial. The (160) authorities are express that it must be charged or shown to have been material upon the trial.” For this defect the judgment must be reversed in toto. The first point was examined from a belief that it might be important to declare the law thereon. The other points raised, have no bearing upon the judgment, and are not deemed material.

The Circuit Court erred, therefore, in refusing to arrest the judgment, which is now reversed with Costs.

(a.) In an indictment for perjury, against a party to a suit, it is necessary to show by proper averments, that he was sworn under circumstances which authorized his being sworn as a witness in the cause. (R. S. 1835; title, “ Justices’ Courts, p. 361.)

The State v. Hamilton, 7 Mo. R., p. 300.


text:
    Davis v. Clay, executor of Morrison.
    An agreement that land should be ehargable wi(h, anda security for the- payment of a debt, though not a legal is yet an equitable mortgage.
    2. A purchaser with notice of the land subject to such incumbrance will not he protected in equity.
    APPEAL IN CHANCERY, from Ste. Genevieve Circuit Comí.
   Wash, J.,

delivered the opinion of the Court.

In this cause a bill was filed by the complainant against trie defendant and one Scott, to foreclose a mortgage, &c. The Circuit Court decreed tiie foreclosure, sale, &c., from which Davis appealed to this Court.

The facts are, that on the 23d of June, 1821, the e’oove named defendant, Scott, executed a covenant, real mortgage, or instrument in writing, to the testator, Morrison, in the words following, to wit: To all to whom these presents shall come; Whereas, I, John Scott, of the county of Ste. Genev'eve and State of Missouri, am justly indebted to Col, James Morrison, of the county of Fayette, in the State of Kentucky, in the sum of three thousand eight hundred and thirty-eight dollars and sixty-six cents, lawful money of the United States, to bear interest from the date hereof; for which sum, said Scott has executed his note of equal date with these presents, till full and perfect payment. Now know yo, for the better securing unto the said Morrison, his heirs and assigns, the full and perfect payment of the said sum, on or before the first day of March next ensuing; that I, the said John Scott, for (162) myself, my heirs, executors and administrators, do covenant, promise and agree to and with the said James Morrison, his heirs, executors, administrators and assigns, that the undivided interest of one third part of, in and to, a certain tract of land, known by the name of the Saline tract, in the county of Ste. Genevieve and State of Missouri, owned in common with Henry Dodge and the heirs of Edward Hempstead, containing about twelve thousand arpents more or less, being the same that was purchased by said Dodge, Hempstead and Scott, as the property of Mr. Peyroux; and also, as the property of Mr. Maxwell, as by deeds of record will fully appear, and every part and parcel thereof shall stand charged and chargeable with, and stand, continue, and be a security unto him the said Morrison, his heirs, executors, administrators and assigns, as well for the payment of the principal as the interest thereon, until the same shall be fully and finally paid and satisfied according to the true intent and meaning of these presents; reserving, however, to the said John Scott, his heirs and assigns, the rents and profits of the said land and saline, above and before secnrvted and mortgaged,” &c.; which was regularly acknowledged and recorded on the day of its date, and of which the defendant Davis had full notice; that after the execution of said instrument in writing, a judgment was obtained against said Scott, under which the premises were seized and sold to the defendant Dayis, for the consideration of one dollar.

The questions presented for consideration are,

First. Whether the instrument be valid as a legal mortgage, &c.?

Second. If not a mortgage in law, whether it can be an equitable lien ?

The instrument is imperfect and defective as a legal mortgage, but it may well be regarded as an equitable mortgage.

An agreement respecting real estate, for good consideration, imposes a lien as against persons haying notice, &c. 4 Browns ch. s. 31-4, Brow. ch. 462, P. Wms. 282 and 429. If an equivalent be given, though the contract be not executed with all the formalities of law, yet in equity, the use is in the purchaser, &c., Gibb, uses 49 eq. 30.

The decree of the Circuit Court is, therefore, correct, and must be affirmed, with costs.


author: Wash, J., M’Giek,. C. J.,

text:
    Stokes v. McAllister.

      X. Neither the 6th section of the act of 1827, nor the act of the 4th of July, 1826, concerning judgments anti executions, repeals the 73d section of the act of January, 1816, giving to widows the right to remain in the mansion house of their husbands, and the plantation thereto belonging, until the assignment of dower.
    2. The right of the widow to remain in the mansion house may be assigned.
    3. Ejectment is the appropriate remedy to regain possession, should the widow he evicted; the remedy by action for damages given by the 73d section of the before mentioned act being cumulative.
    ERROR from the St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

The plaintiff in error brought an action of ejectment against the defendant, in the St. Louis Circuit Court, The cause was tried at the March term, 1819, on the issue of not guilty. The facts appear by a case agreed in substance as follows William Stokes and the plaintiff intermarried in England, where they lived and cohabited together for some time, and then separated, having executed articles of separation by which he, the said William, stipulated to pay an annuity of £100 yearly, to William Sparrow and another, as trustees for said plaintiff; that said William removed to the State of Missouri, and there lived separate from said plaintiff, until the time of his death, which happened in Sept., 1823, without lawful issue, and leaving the plaintiff his lawful widow. He, said Stokes, having previously made and published his last will and testament, and thereby devised all his estate, real and personal, to John O’Eallon, in trust for his (Stokes’) illegitimate daughter, and appointed said O’Falloa (164) his executory who qualified as such; that said Stokes, at the time of his death, was seized in fee of the premises in the! declaration mentioned, the same being the mansion house and plantation in which he resided at the time of his death. That he also died seized of other real estate in Missouri 3 that immediately after the death of said William, the plaintiff with the assent of said executor, entered upon and took possession of said mansion house and plantation, and leased the same to one Edwarii Wheeler, who entered upon, occupied and possessed the said mansion house and plantation until he was ousted by the defendant. That the plaintiff soon after the death of her said husband, commenced a suit for the assignment of dower, which at the time this cause was tried was still pending. That said William Stokes not having paid the annuity stipulated for in said articles of separation, suit was brought by Sparrow, the surviving trustee, against O’Fallon as executor, and judgment recovered for $2,462 and five cents, to be levied of the lands and tenements, goods and chattels which were of said Stokes 5 that one Nathan Davidson also recovered a judgment in the same Court against said executor for $7,370 debt, and $1,216 03 damages, to bj levied as above stated. That executions issued in conformity with the judgments^ and were levied on the mansion house and plantation aforesaid, and that the same were in due form of law advertised and sold on the 8th of September, 1825 5 that John O’Eallon became the purchaser and afterwards conveyed the same to the defendant, who on the 12th of February, 1826, entered upon the said premises and ejected said Wheeler therefrom. Upon these facts the Circuit Court gave judgment for the defendant, to reverse which, this Writ of error is prosecuted. The only question presented for consideration, is, whether the sale and conveyance aforesaid to O’Fallon, divested the right of the widow to hold, occupy and enjoy in person, or by her tenant, the mansion house and plantation of her deceased husband.

By the 73d section of “An Act directing the probate of wills and the descent of intestate’s real estates, and the distribution of their personal estates, and for other purposes therein mentioned,” pased Jan. 21st, 1815, it is provided that “ every widow after the death of her husband, may tarry in the mansion place of her husband and the plantation thereto belonging, rent free, until dower shall be assigned her.” The act supplementary to the above recited act passed Jan. 20th, 1816, sections 8 and 9, authorizes the sale of real estate by the executor or administrator, reserving the Widow’s right of dower. “An Act supplementary to and in amendment of the fore-(165) going acts,” passed January 25, 1817, regulates the widow’s dower after all just demands against her' husband’s estate are paid, and in case of insolvency, provides that she shall not be entitled to any dower in the lands, &e., but shall be entitled to tarry in the mansion house of her deceased husband and the plantation thereto belonging, of which he died seized and possessed, rent free, for the term of two years,” &e., sec. 1 and 4. The 5th section provides that lands, &c., may be sold upon judgment and execution, &c., after the expiration of eighteen months, and makes no reservation of the right of dower, or any provision on the subject, and repeals all acts and parts of acts repugnant to it, &c. “An Act to direct descents and distributions,” passed Jan. 11th, 1822, “ reserves the widow’s right of dower,” &c. “An Act concerning executors and administrators,” passed on the 12th Jan., 1822, authorizes the executor or administrator, where the personal estate is insufficient, to sell upon application to the Circuit Court, lands, &e., without prejudice in any manner to the widow’s right of dower.” And “An Act supplementary to an act concerning executors and administrators,” passed Nov. 28th, 1822, authorizes executors and administrators to sell, &c., reserving the widow’s right of dower. By these laws it will be seen that the widow’s right of dower is expressly protected as against the acts and rights of the heirs, executors and administrators. But it is contended that the 5th section of the act of 1817, above referred to, is repugnant to the provision in the act of 1815,. allowing the widow to. tarry in the mansion place, &c., until dower be assigned her. It is certainly not so. in. its terms,.and looking to the spirit of all the laws on the subject, we think they may well, stand together.

The widow of an insolvent person is clearly secured in the possession of her deceased husband’s mansion, &c., for the term of two years, and, a sale under the 5th section of the act of 1817, could not divest her right, and it can hardly be supposed that the Legislature intended to place the widows of solvent persons upon a worse footing than the widows of insolvents,, which might be the case, if the position contended for by the defendant’s counsel be- correct. It seems to us pretty clear that the Legislature intended widows should hold possession for two years or until their ^dowers should be assigned, (as the case might be-that the estate was or was not insolvent,) absolutely and, without regard to the rights of creditors during that period,, and that sales made in the mean time should pass the title of the property subject to (16.6) the widow’s right of possession. The act regulating executions, passed July 4th, 1825, contains no broader provisions to subject lands to sale under execution, than those contained in the 5th section of the act of 1817, above cited and relied on.

The sale under execution to O’Fallon could not, therefore, divest the widow’s right of possession. It has been argued, that the right to tarry, &c., is personal and not assignable, and the widow had no power to let the premises. We think differently. It has been argued, alsoj that the action of ejectment is-not the-proper remedy, but a. special action for damages under the 73d section of the act of 1815 above referred to; we think the remedy therein provided merely cumulative, and that the action of ejectment is the appropriate one to regain the possession.

The judgment of the Circuit Court is, therefore, reversed, with costs, and the cause remanded for a. new trial in conformity with this,opinion.

M’Giek,. C. J.,

dissenting.

My opinion is, that in this case the widow not only has a right to possession till dower assigned, but that she has a right to dower against the purchaser under the execution and until it shall appear that, to pay debts,, her dower must be sold, this, right continues.


author: 'M’Girk, C. 3.,

text:
    Hector (a slave) v. The State.
    1. The confessions of a prisoner, extorted by pain, or ¡made under the influence of hope or fear, are inadmissible evidence. .(Note a.)

    2. It is the province of the Court and not of the jury to determine .whether a confes. sion is made with :that degree of freedom whicli is necossaiy to make it admissible evidence.
    3. Tiie discharge of a jnry.after they had heard the evidence and retired, in consequence of the sickness of ane of the Jurors, is.not error,o».»,trial,for.burglary.
    -ON WRIT ©F ERROR,...
   'M’Girk, C. 3.,

fleliverefbthe opinion of the .Court.

This was an indictment for burglary. .In the course of the.trjal, certain instruc;(16t) tions were asked.for by the prisoners counsel and refused, and other instructions given in lieu thereof and objected to. A part .of the testimony,was, that about half past ten O’clock .at night, when the burglary was discovered,,certain persons caught Hector and began to flog him to make him confess ,what he knew concerning • the burglary and stealing of the money mentioned in the indictment. ' That they continued flogging all night, that he screamed under the lash, and said if<they would release him he would find the money. The State then examined one McKinney, who said, that about day break he was awakened b.y-.a loud hollowing .or screaming in the -rear of his house, that he arose, and on inquiry was informed by some persons there, -near his house, that certain persons were flogging the slave Hector, to compel him to discover. That when Hector heard the witness’ voice he called on him to come to his assistance^; that then the witness went to Hector, and- told him if he took the money he .ought to confess, and then asked Hector if he took the money. That Hector replied that he took the money, and that he would show the witness where it was, hut that he did not wish the-persons who had been flogging him to accompany him. That the money was at Mr. Menard’s, his master’s house,.and that if the witness would go there alone with him, he would find the money. That the other persons would not consent to that, unless they also would be allowed to go along, and •then Hector, the-witness,.and the other persons, went-to the house of Mr. Menard and did not find any money. That .witness-conceiving that Hector had deceived him, gave him several lashes with.a cowskin, and then left him.

The prisoner’s counsel then moved the Court to exclude 'McKinney’s testimony from the jury, on the ground that the.-confession of Hector was not freely and voluntarily made, hut extorted by pain, &c,, which motion the Court overruled; and the ■prisoner’s counsel also prayed the Court to exclude from the consideration of the jury, .all the confessions which were extorted from him, which the Court refused.

But instructed the. jury that they should exclude from their consideration any confession made by Hector under the influence of torture.or pain, .or hope or fear, but that the confessions of the defendant, which, in their opinion, was given freely and voluntarily, should’ be taken as good evidence against the prisoner, which instruction was objected to, &c.

The first question to be considered is, did the Court err in refusing to exclude theteslimony of McKinney from the jury ? I think in this the Court did err.

(168) Hector had been under the lash, the greatest part of the night. This circumstance might of itself be sufficient to subdue him into any confession required. No doubt when he saw McKinney he hoped for some relief, and asked him for it, but he was told that if he was guilty he should confess, and then was asked if he took the money, to which he replied he had taken it and offered to show where it was. This all might have been done, and most probably was, to gain a respite from pain; which view of the subject is strengthened by the fact that no money was found where the party and prisoner went to look for it.

The Court erred in instructing the jury that all the confessions, freely and voluntarily made, were evidence. And those not of this character not evidence. Whether |a confession is sufficiently free and voluntary to be competent testimony, is a matter |bf law to be decided by the 'Court and not by the jury. In this case there was another confession other than that made to McKinney that he took the money, which I consider made under the influence of pain, which should by the Court have been excluded from the consideration of the jury.

Another point made by the prisoner’s counsel is, whether after a jury have been sworn, heard the evidence, and retired to consider of their verdict, they can be discharged on account of the sickness of one of the jurors. In this case the juror was sworn, and on his oath declared he was unable, by reason of sickness, to serve any longer, and then the whole were discharged. We are of opinion that there is no er-. ror on this point.

Judgment reversed and sent back for a new trial.

(a.) See Hawkins v. The State, 7 Mo. R., 192.


author: Tombkins, J.,

text:
    Hamtramck v. The Bank of Edwardsville.
    1. Where an act-of a Legislature gives to individuals a,corporate capacity upon the. performance of certain acts, a.person contracting wi(h these individuals by their corporate name, is precluded from denying the performance of those acts which were necessary to give them a corporate existence.
    2. The act of the State of Illinois, establishing a Bank at Edwardsville, does not give to its President and Directors the power of assigning notes made payable to them? selves.
   Tombkins, J.,

delivered-the opinion of the Court.

This was an action of debt brought by the appellees, to the use of R: E: McKinny, against the appellant, on a promissory note. Judgment was given in Circuit Court-for the plaintiffs, appellees here ;. and from this judgment this appeal is taken. The bill of exceptions shows that, at the trial, the plaintiff gave in evidence the charter of the Bank of Edwardsville and the note declared on.

The defendant then moyed.th.e Court to decide-that the plaintiffs could not recover, and this motion was overruled.

The defendant then proved that, before the bringing, of this suit, the note declared on was assigned by the Cashier and President of the Bank of Edwardsville, to D. Prickett, by endorsements on the note. The plaintiffs offered to prove that the said note had, by D, Prickett, been assigned to A. Prickett, and by endorsement in blank of A. Prickett,.had come into the hands of the present holder before the commencement of this suit, and that all of the assignments were, at the bar and before the trial, stricken out by the plaintiff’s attorney; to all which the defendant objected,, but he was overruled. is contended, by the appellant that the Court erred:

First. In overruling the motion of the defendant, that on the case made by the-plaintiffs they had.no right to recover.

Second. That the assignment of the note by the President and' Cashier to B. Prickett, transferred-the whole interest of the Bank in the note, and divested it of all; right to sue; and that if the note did, by repeated assignments, come back to the-payees, they must sue by their derivative title.

In support of the first point, it is insisted that the act qf the Legislature given in, (170) evidence, did not of, itself give a corporate being to the President, Directors. & Co. of the Bank of'Edwardsville, but that its existence depended upon matter subsequent, and, until the happening of such subsequent matter, there can be no such, corporation, and no proof of the existence of those facts was offered.

The first section indicating the purpose of establishing a Bank is prospective, and. says, “a Bank shall he established,’’ &c., and contains a proviso that as soon as Í50-,000 shall be subscribed, and $10,000 paid, the corporation may commence business.

The third section provides that all those who shall become subscribers, shall be- and, thoy arq-hereby created and made a corporation, &c., and gives them a name, &c„.

It appears very unreasonable that the appellant, after executing his promissory hote to the President, Directors & Co. of the Bank of Edwardsville, should require the plaintiffs to prove that they had the right to use the name and claim the existence which the defendant himself, in executing his promissory note, had admitted. But why, it is asked, produce the charter at all, if the execution of the note is an admission of the existence of the corporation ? Whether this Court would, without the production of the charter, permit the corporation <to sue on a note executed to itself) is not now necessary to be decided, as the charter has been produced. But we are •prepared to say that it is but reasonable that the .execution of the note by the defendant, should be considered as an admission of the performance of all the acts required by law to be done by the plaintiffs, previous to the time of the commencement of,the corporate power of the Bank. It might havebeen necessary to produce the charter to show the right of the corporation to maintains suit or to take notes payable to itself.

Second. To decide whether the Bank should have sued in'its'character of payee or of assignee of the note, we do not think it necessary to examine all the arguments used, inasmuch as by the charter no power is given the President, Directors & Co. >to assign notes executed to themselves. The object of the Legislature in creating ■this Bank seems to have been, to supply the country with a circulating medium of paper, or in the language of the act itself, of “ bills obligatory and of credit,” issued by such Bank and for such purpose, they are by the ninth section (referred to by the appellants) made assignable and negotiable. The power of assigning notes executed do the President, Directors & Co., is not given by the law, and not being at all ne(171) cessary to them in the ordinary.course of their business, it is not to be inferred ¡that the law makers intended they should exercise such power.

The judgment of .the Circuit Courtis .affirmed.


author: M’Girk, C. L, Wash, J.,

text:
    Milly v. Smith.
    A negro is mortgaged in the State of Kentucky, and afterwards,but before forfeiture of the mortgage, is carried by the moitgagor into the State of Illinois with a view to residence, from which State she is taken by the mortgagee and brought to Missouri, where she institutes an action for freedom against the mortgagee — held, that under the laws of Kentucky, which is the common law of England in this respect, the mortgagor is the legal owner of the slave; that he could emancipate her; and. that the slave, by her residence in the State of Illinois, acquit ed a iuh modo right to freedom by the ordinance of 87, which liberated her from the dominion of the mortgagor, and gave her a right to freedom until the mortgagee, by the means rendered necessary by the terms of the mortgage, again subjected her to slavery.
    Wash, J., dissenting.
    ERROR from the Circuit Court of St. Louis county..
   M’Girk, C. L,

delivered the opinion of the Court.

This was an action on the part of Milly for freedom, under the ordinance of Congress of 1787, for the government of the North Western Territory. There was a. verdict and j'udgment against the plaintiff in the Court Below. The facts of the casoappear to be, as found by a special verdict, that one David Shipman, then residing in-the State of Kentucky, on the 17th of October, 1826, made a deed to Smith, the-defendant in error, by which Shipman, among other things, granted, bargained and sold the plaintiff, Milly, as a slave to Smith, to have and to hold her, together with her increase, to said Smith and his heirs forever, subject to-this condition, to wit: that whereas the above named Shipman in indebted to-the Commonwealth’s Bank of Kentucky in abor^t the sum, of $800, for which the-said; Stephen Smith is bound as security, and the said Shipman is also indebted to the heirs of William Cooper in about the sum of $600, for which the said Smith is bound as security in a replevin bond, (also Shipman is indebted to other persons in several other large sums, for which Smith is also bound as security,) and also said Shipman is indebted to Smith himself in- about $200.

(172) Now the lands, (several tracts of land also sold or mortgaged,) slaves and chattels aforesaid, with-their future increase, are hereby declared to be given in mortgage to secure and indemnify and pay the said Smith as security, and in his own. right, in the several sums of money hereinbefore enumerated and mentioned, and it-is hereby expressly understood and agreed upon between the parties, that the said. Shipman may and is hereby permitted to retain and keep the possession of said land,, slaves and chattels, with their future increase, and to have the use thereof, subject,, however, to the lien hereby created;- and should said Shipman, or the said Smith,.ati any time hereafter he able to effect a sale of the lands, slaves,. &c-., or any part thereof at their fair value, and apply the proceeds thereof to the payment of the liabilities and claims herein enumerated, or to the discharge of a judgment in favor of the Farmers and Mechanics’ Bank of Shelbyville against said Shipman, that in such case, the said Shipman and Smith will consent to said sale, and’ make title to the? property so sold, in which' title said Smith will release the lien hereby created. Witness our hands, &c. It is farther found, that soon after the execution of the said instrument, called a mortgage, Shipman, who was then greatly embarrassed in his pecuniary circumstances, took the said Milly, with several other of his slaves, and secretly, with intent to withdraw himself and property from Smith and other creditors^ ran away with them to the State of Indiana, and there, in Jefferson county, executed a deed of emancipation in due form of law to the said Milly, she being present,which deed emancipated Milly with one other in the mortgage mentioned.-

It is further found that Shipman then carried Milly to Peoria county, in the State' of Illinoisj where he then settled and resided, with an intention' of residing there permanently; hired a farm, and declared his intention of residing there permanently, and has ever since resided there from November, 1826,, till May, 1827, at which latter time said Smith came there and took Milly secretly and against her consent, and the consent of Shipman, and brought her to St. Louis, claiming her as his slave, and holding her as his slave, when and where this suit for freedom commenced: and the Court further finds, that after the deed of emancipation was executed, Smith paid as security for Shipman to the Sheriff, who had executions against him therefor, the claims of Levin Cooper, and the claim of Polly Rice, mentioned in the instrument of mortgage, amounting to the- sum of sixteen hundred and thirty-four dollars, and (173) that the executions issued after Shipman had carried Milly to Indiana as aforesaid. It is further found that Smith never had possession of Milly till the month of May, 1827, when he went to Illinois and-seized her and brought her to St. Louis^ aforesaid, and that he claims her as a slave under the deed of mortgage, and that Shipman had, before the mortgage and during several years, had and held Milly as a-slave. It is further found, that the deed of mortgage was executed in Shelby county, in Kentucky, where Smith and Shipman both resided, and that Milly was by Shipman then held as a slave.

The jury, or Court sitting as a jury, also find several statutes of Kentucky, the result of which is, that, for purposes of descent, slaves are real property, and that for the purposes of contract and execution they are personalty. The Court also find, that the common law of England is and was at the time of making this mortgage;, the law of Kentucky.

Upon this state of facts and law, the question submitted to us is, whether Milly is by law entitled to her freedom ? When we only look to the facts in this case, we see on one side a man largely indebted-, hiding his property, and in fact destroying it, to prevent his creditors from reaping any benefit therefrom, and in this case, Ship-man has been base enough- to emancipate the slave to injure and ruin his security. We feel disposed to view him- in a-light but little below that of a felon. But there are two sides’ to every question-: here is also the case of a person claiming the benefit of the ordinance of Congress of 1787, for the- government of the- North-Western Territory, which declares, that in that country there shall be neither slavery nor involuntary servitude. It is also a matter not to be forgotten, that Mr. Smith, perhaps once, that is, when he took the mortgage, had it in his power to have made such a contract that Shipman could not have had the possession and management of the property. Having premised this much, I will proceed to investigate the most prominent points made in the case:—

Eirst, it is insisted that if Shipman was the legal owner of the slave at the time he brought Milly to Illinois, to reside there permanently with her, she became free in virtue of the ordinance.

This doctrine is conceded by Smith’s counsel, and it has been so decided in repeated instances by this Court.

The next and main point in the case is, was Shipman or Smith the legal owner of Milly on the execution and by virtue of the mortgage ? When this same case was (174) before this Court on a former occasion, the Court decided that Shipman was the legal owner of the slave according to their view and construction of the mortgage. Nothing new now appears on the record except that it now appears that the common law of England was the law in force in Kentucky at the time this mortgage was made; hy that law, then, we are to decide the case. In Kentucky, slaves, for the purpose of contracts and conveyance, are chattels.

It is insisted by Smith’s counsel that here there is a complete sale of the slave, and that what comes afterwards in the condition, amounts only to covenants which either jrarty may or may not regard as he chooses, subjecting himself, however, to an action of covenant broken, and that Smith chooses to take possession of the slave, did no more than he might lawfully do. On the other side it is agreed that this instrument, when taken altogether, amounts only to a lien created by the act of the parties. That Shipman is the legal owner of the slave until it shall happen that Smith has to pay the debts or a portion of the debts in the mortgage mentioned; and also, until Smith shall afterwards foreclose this mortgage or obtain judgments in due course of law against Shipman, for the money Shipman owed him, and for that which he paid for him, and shall in such case subject the property to his lie'n by foreclosure, or by a bill in chancery, and that until this is done, Milly is free sub modo and free forever as to Shipman. When the argument in this case was first opened, I felt strongly inclined to doubt the legality of the former opinion of this Court, delivered when this case was up before. But I feel myself at last constrained to affirm that opinion.

The question is emphatically asked by Smith’s counsel, could Shipman in Kentucky have legally emancipated the slave after making the mortgage ? If this question can be answered satisfactorily in the affirmative, then it is admitted that Milly is free sa.6 modo* I ana of opinion that Shipman could lawfully do so. The reasons I will freely give. I believe that the conditions are as much a part of the instrument as the granting part itself is, and that they create qualifications, limitations, and restrictions, some of which are inconsistent with the idea that Smith could take possession of the property when he might choose to do so; and are inconsistent with the idea of legal ownership. The fact that Shipman was to have indefinite possession and perpetual use, is inconsistent with the end and use of ownership. But at all events,' Shipman could not be considered to have a less interest than a lessee for years, see Poto. (175) on Mortgages, 206,-7, where the Court make a distinction between a case where the covenant is that the mortgagee will not hinder in the enjoyment, and where the covenant is that the mortgagor shall enjoy. In the latter, held to be lessee for years, in the former, tenant at will. In this case the covenant is, that Shipman shall enjoy indefinitely. And again in the same book, 221,-2, Mr. Powell says, a mortgagor in possession gains a settlement, because the mortgagee, notwithstanding the form ha» but a chattel, the mortgage being only a pledge for security to him for his money, and the original ownership of the land still residing in the mortgagor, subject only to the legal title of the mortgagee so far as such title is requisite to the end of security.

In the same book, 225, 226, it is said the estate of the mortgagee until forfeiture, still continues as it was at common law before the interference of Courts of Equity ; he is entitled to an estate as tenant in mortgage, in fee or for term of years, subject to any agreement made between mortgagor and mortgagee relative to possession, and defeasible at law on the performaace of the condition This latter authority only shows that so far as respects possession and the like, the mortgagee is not at liberty to redress himself contrary to his covenant. Many authorities might be cited to show that for many and important purposes, the mortgagor is considered to be the legal owner. Thus the mortgagor can do no act to affect the mortgagee’s lien, nor can the mortgagee do any act to defeat the mortgagor’s equity of redemption. But all incumbrances subsequently created by' the mortgagor are to yield to the mortgagee’s right to foreclose and have his money. Now in all such cases, I take the law to be, that the cases are good when the mortgagor’s possession is indefinite by covenant, at least till the time has arrived that the mortgagee can exercise his right. In this case when has the mortgagee a right to possession? The possession and use are gone from him by covenant indefinitely, and when he pays the debts and then enforces his lien by a sale ol the slave, if he should be the purchaser, then he may possess and not before. In this case, I take the law to be that Milly is free as to Shipman forever. For by the act of residence in Illinois that result is produced, and that as to Smith she has the same indefinite right to liberty that Shipman had to the possession of her, and until the lien is enforced by some mode known to the law, she ought to enjoy her freedom. Now if Smith should delay this for twenty years after his right to do so has arisen, then the presumption would arise that he had no (176) demand, and her right to her freedom would he unconditional. Upon the whole matter, I am of opinion that Milly is free sub modo, and that the judgment of the Circuit Court ought to be, and is reversed with costs, and such judgment given as the Court below ought to have given, which is, that Milly is free.

Wash, J.,

dissenting.

I dissent from the opinion of the Court above delivered. I think the weight of authority is, that the mortgagee is the legal owner. Various authorities have been cited on both sides for and against the position. Most clearly the mortgagor is not the full owner, he is at most but the qualified owner. In this case Shipman was the qualified owner for specific purposes, and had no right to emancipate the plaintiff in Kentucky or elsewhere; indeed, it seems to he conceded on all hands, that Shipmaa could not have emancipated Milly by his express deed, and why give indirect and fraudulent efforts and implied assent more effect than his deed could have? I incline to consider the plaintiff in the light of a purchaser from Shipman, with a full knowledge of Smith’s lien.


author: Tompkins, J., Wash, I.,

text:
    Chouteau v. Hill & Keese.
    i. An intestate’s effects are solví under an execution by a Sheriff, who, after satisfying the debts, &c., has a surplus in his hands, for which the administrator gives a receipt, but never actually receives the money — held, that in whatever manner such surplus may have been applied, the administrator must account for it, and unless he does, his security will be liable in an action on his administration bond.
    3. Nor will the circumstance of the party suing being an administrator, and having assets of the intestate in another State, discharge the security from his liability.
    Wash, J. dissenting.
    APPEAL from St. Louis Gircuit Court,
   Tompkins, J.,

delivered the opinion of the Court,

This appeal is prosecuted by Chouteau to reverse a decree of the St. Louis Circuit Court, sustaining a demurrer to a bill filed against the appellees, and dissolving an Injunction thereon granted. The bill sets out that Thomas Brady died intestate ; ¡that administration of his estate Was granted to John R. Jones, who executed a bond with the complainant as security, in the sum of $6,000, conditioned as required by the act of 1815; that before the death of Brady, the appellees commenced a suit against him, which, after the death of Brady, survived against Jones as administrator; that Jones appeared and pleaded, and pending the suit, died; that letters of .administration di bonis non Were then granted to Augustus Jones and Harriet Brady ; that the administratrix, H. Brady, pending the suit, intermarried with John Scott, who wa3 made a defendant; and that at the October term of the Circuit Court, 1824, Hill & Reese had judgment for $2,768 53; that the appellees, before issuing any execution on said judgment, brought an action on the administration bond of John R. Jones against the appellant, and had judgment; and that his damages were assessed to $3,032 38; that on the trial of said cause, a document bearing date the 23d October, 1823, purporting to be a receipt passed by said Jones to the Sheriff of the county of St. Louis, in the words and figures following, was given in evidence:

Received of John K. Walker, Sheriff of St. Louis county, $4,200, amount of the surplus made by sale of the lot of ground in the city of St. Louis, as the property of (178) Thomas Brady, deceased, on execution in favor of T. Bond and P. Menard, against John Rice Jones, administrator of said deceased. On said evidence and other the judgment against the appellant was given, and damages assessed as above mentioned. The bill further states, that Hill, one of the appellees, has obtained administration of the estate of Brady in Illinois, and that as such, is possessed of assets; and that the appellees did not communicate to the appellant and his counsel, the fact that no money had been received by Jones of the Sheriff as surplus proceeds of said sale under Bond & Menard’s execution, but availing themselves of the ignorance of the appellant and his counsel, gave said receipt in evidence and urges this as a ground of relief.

It is not pretended that Jones, if alive, could avoid the effect of the receipt given by him to the Sheriff on account of any fraud or mistake; but the appellant’s counsel takes the ground, that the liability of the surety is not commensurate with that of his principal, but is limited by the condition of his bond. His liability is limited in amount to $6,000 by the condition of his bond, and he is certainly liable for all the monejt Jones did receive, not exceeding $6,000, as well as for all that he ought to have received and neglected to receive : suppose, for instance, a by-stander had purchased the property; could not Mr. Jones, having a right to receive the surplus of the sale, say to the Sheriff, receive from him so much as will satisfy the execution, and I will give you a receipt for the rest — he has paid me, or will pay me, or I will take it on him and give you a receipt. The Sheriff is certainly not bound to See that administrators rightly apply the funds which come to their hands. In whatever light this subject is viewed, whether Jones paid a debt he owed to the Sheriff with the money which he acknowledges to have received, or whether the Sheriff at his request kept the money for the purpose or paying a debt of Jones’ to any other person, or whether he (Jones) meant to give it to the Sheriff, he is certainly liable to Brady’s estate for the amount; and are we to be told that the security is not liable for the misapplications of the funds of intestates by the administrator? It may be true that the appellee is in possession of assets of Brady’s estate in Illinois ; but it is impossible to conceive that this should be any reason why the appellant should not pay the (179) amount he owe3 in consequence of his liability for the maladministration of his principal.

The judgment is affirmed.

Wash, I.,

dissenting from the above opinion.


text:
    Laberge v. Chauvin.
    1. An assignee of a debt secured by a mortgage, may, by a bill in Chancery, compel the sale of the mortgaged premises for the payment of the debt, as the mortgage by the assignment of the debt, passes as an incident to it. (Note a.)
    2. An answer responsive to a bill is evidence till disappioved.
    a. Under the 42d section of the act of 1825, regulating proceedings in Chancery, the facts on which a decree of the Circuit Court is founded, must appear in the record, else on an appeal to this Court the decree will be reversed, and the cause remanded.
    APPEAL from St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This is an appeal by Laberge from a decree in Chancery of the St. Louis Circuit Court. The complainant’s bill is founded on a bill dated May 13, 1824, executed by one Joseph Gravline and wife, of the one part, and the defendant Laberge, of the other part. By this deed Gravline conveyed to Laberge a tract of land in St. Louis county, for the sum of $300, to be paid in the following instalments : one hundred dollars in two months from the date of the deed, and the remaining $200 in eight instalments of $25 each, payable every three months, beginning from the day of the payment of the first $100. The deed contains a clause mortgaging the land to secure the payment of the purchase money. On the 8th of June, 1824, Gravline made the following assignment of the debt due or to become due to him from Laberge. “Personally appeared before me, a Justice of the Peace of the county of St. Louis, Jos. Gravline, who acknowledged to have this day assigned to Lafreinoir Chauvin, a sum of three hundred dollars due to him from Jos. Laberge, being the consideration money for the purchase of a certain tract of land of said Jos. Gravline and wife, transferred to said Jos. Laberge by deed bearing date the 13th day of May, 1824. This assign-(180) ment being for value received, and subject to conditions, as to the terms of payment, as stipulated in the said deed of sale. Dated this 8th day of June, 1824.

his
JOSEPH X GRAVLINE, [x.. s.] mark.

Signed and acknowledged before me, the day and year aforesaid:

J. V. GARNIER, J. P.

Of which assignment Laberge, the defendant, had notice immediately after it was executed.

The bill charges, that at the time of the assignment and notice, Laberge had not paid more than the first $100. The answer avers the payment of $160 75, and in this, is responsive to the' interrogatories of the bill. The decree sets out, that the defendant had failed to prove, by competent evidence, the payment of more than $100, &c. Some short time after Laberge had notice of the assignment by Gravline to Chauvin, he, Laberge, procured Gravline to enter an acknowledgment of satisfaction on the margin of the record of the mortgage, and soon thereafter sold the land. Laberge insists in his answer, that he had a right to pay Gravline; that he did pay him the whole amount of the consideration money before the said acknowledgment of satisfaction by Gravline. The Court decreed against Laberge for the consideration money and interest, after deducting the $100 admitted by the bill to have been paid by Laberge to Gravline, before the assignment.

I shall notice only two, of the errors assigned.

First. The want of Jurisdiction.

Second. In decreeing against the defendants answer as to- the $60 75 over the amount admitted by the bill to have been paid, &c.

The law seems well settled, that debts due, or to become due, as well as all possibilities or contingent interest, whether of real or personal property, are assignable in equity, and after notice of the assignment, the debtor will be bound to pay the money &c., to the assignee, and not to the original creditor, 1 Maddock’s Chancery, 548-9, and authorities there cited. The assignment of the debt is an equitable assignment of the mortgage, 2 Bar. 969; 9 Ves.. 411; 1 John. R. 580. There is, therefore, no-want of jurisdiction.

On the second point, the law is, that the answer, when responsive to the bill, is evidence, and must be taken as true until it be disproved. The Circuit Court erred, therefore, in not deducting the amount alledged to have been paid before notice of the (181) assignment, and for this the decree should be reversed.

Now, on examination of the record, it will be seen that the evidence upon which» the decree is founded has not been preserved in any of the modes prescribed in the 42d section of the act to regulate proceedings in Chancery. Geyer’s Dig., p. 646, which was in force at the time of rendering this decree. For this error, decrees have-been repeatedly reversed by this Court, and for this the cause must be remanded. A reversal on the second error noticed, would not make it necessary to remand.

The- judgment and decree of the Circuit Court is reversed, with costs, and the cause remanded for a new trial.

(a.) See Crinion v. Nelson, 7 Mo. R., p. 466.


author: Tompkins, J.,

text:
    The State v. English.
    I. On a prosecution for an offence which must he commenced within a given time after its commission, if the first indictment is quashed, and the second one, in order to prevent tile bar of the statute of limitations, sets out the proceedings under the first, they must be stated with the precision and certainty required in original criminal proceeding.
    S. When an indictment is quashed, and the period elapsed within which a prosecution should be commenced, the second indictment should lay the offence on a day within the time limited by law for the prosecution of the offence ; and the State, on the trial, should show the facts which bring it within the exceptionof the statute of limitations.
    WRIT OF ERROR from Clay Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

English was indicted for exchanging on the 1st of April, 1828, one gallon of spirituous liquors with an Indian, for a gun. The hill was found at the August term of the year 1829. The jury also find in these words, that at a Circuit Court held for the county of Clay on the 25th of November, 1828, being within the space of one year from and after the commission of the offence aforesaid, by him the said Charles English, the grand jurors of the county of Clay found a bill of indictment against him, the said Charles, charging him with the same offence aforesaid, and that the said bill of indictment was prosecuted, and was pending in the said Court until the 5th day of August, 1829, at which time the proceedings had upon the said indictment for the (183) offence aforesaid, were reversed and sefaside by the said Court, and the said indictment was quashed and held for nought;. and so the jurors do say, that the said! offence so as aforesaid found,, was committed by him, the said, Charles, in manner and form aforesaid,, within one year preceding the time of their present finding, con-, trary to the. form, &c.,”

Offenders of this kind' are by law to be prosecuted within one year after the commission of the offence, provided that where the indictment has been quashed or the-proceedings set aside or reversed, the time during the pending of the said indictment shall not be reckoned within the-statute.. In our opinion,, the time of the commis-. sion of the offence might properly have been laid within a year preceding the time of finding the bill; and evidence of the quashing of the first indictment might have been introduced by the State, to account for the last bill not being found within the. time limited by law. But the State having chosen to set out in the present indictment as well the previous bill and proceedings thereon, as the commission of the offence for which the appellant was prosecuted, it became necessary to use, in stating the finding of the first bill and proceedings thereon, all the certainty required in charging the commission of the offence. It is not stated in the last indictment that the-grand jury which found the first bill was sworn, nor is the prosecution of that bill of indictment alledged with the certainty of time and place. It is not thought necessary to mention more instances of the want of certainty, as they are obvious enough, tf the above recited clause of the last indictment were to be stricken out as surplus-age, then we hold the indictment would be bad ; as the time at which the commission of the offence is charged, is more than one year before the finding of the hill,, and bad on its face. For although the State is not bound to prove the offence committed on the very day laid in the indictment, yet we hold it necessary to lay a day within the time limited by law, for the prosecution of such offences.

The judgment of the Circuit Court is reversed.

      Absent, M’Girk, C. J.


text:
    Evans v. Hays.
    If plaintiff fails to file security for costs agreeably to order of Court, his suit shall be dismissed, and he shall be adjudged to pay the costs.
    APPEAL from Cape Girardeau Circuit Court
   Tompkins, J.,

delivered the opinion of the Court.

This is an action of assumpsit, brought in the Circuit Court of Cape Girardeau, county by the appellant, against the defendant for money collected as Sheriff and which he failed to pay over to the appellant.

The first error is general. The second is, that the Circuit Court allowed the defendant to set oil against the plaintiff ’s demand the amount of an execution for $59 38 3-4, issued in favor of the plaintiff against the defendant, on a judgment of the Supreme Court reversing a judgment of the Circuit Court, against the present plaintiff in favor of the present defendant. From the bill of exceptions we learn that an execution issued from the Circuit Court of Cape Girardeau county in favor of the present defendant against the plaintiff for $57 07 1-4, returnable to the August term, 1826, on which the money was made. That in the meantime, the defendant’s judgment against the plaintiff was reversed in the Supreme Court, and that by order of the Court the plaintiff had the money restored to him, the cause being remanded for further proceedings. That after it was sent back to the Circuit Court, it was dismissed because the plaintiff there (now plaintiff in the present cause) had not filed security for costs, agreeable to an order of the Circuit Court. (185) After the cause was remanded to the Circuit Court, as before stated, and the costs paid by Evans to Hays had been restored to him by order of the Supreme Court, the parties stood in that Court as if there had been no interruption of the proceedings in the Circuit Court, and as if neither party had paid any costs. The costs then awaited the event of the suit. Evans failed to file security for costs, and the costs were rightly adjudged to be paid by him. The sum of $57 07 1-4' constituted a part of those costs, and the difference between $59 38 3-4 and $57 07 1-4, is, as we suppose, the amount of costs accumulated after the cause was remanded. In this we find no error.

The third error assigned is, that the Court erred in directing its Clerk, upon an ex parte motion of the defendant, to retax the costs in a case which had been in the Supreme Court, and issue an execution against the plaintiff, because the Supreme Court had ordered the plaintiff restitution. Of the matter assigned for error here, enough has been said before. We think there is no error.

The matter fourthly assigned for error is, that the Circuit Court permitted the receipt of the plaintiff, given to James Montgomery for his fee as depiffiy Attorney General, to go in evidence as an offset against the demand which the plaintiff had the defendant charged with upon an execution issued in favor of the United States against said James and others.

By the bill of exceptions it is seen that Evans, in his bill of particulars, had a charge for a tax fee on an execution against Montgomery and others, but the execution produced was against Montgomery alone. There seems then no difficulty in saying that the Circuit Court did right in admitting the receipt.

The matter fifthly assigned for error is, that the Circuit Court erred in permitting a receipt given by Evans to Thos. Fletcher for $5, to go in evidence as part set-off of a tax fee with which the plaintiff, Evans, had the defendant charged, collected upon an execution issued in favor of A. Wilson and Thomas Fletcher v. Mary Mathews et al. This receipt is for five dollars, on account in part of the judgment obtained, &c., which is to be applied as a credit on said judgment. On this execution $24 45 only were collected. The costs amounted to $25 47. We think that in such case the costs were to be first paid. Evans appropriated five dollars of this money to the plaintiff’s use, and made himself by his receipt liable to the plaintiff for so much money received to the plaintiff’s use. It was to be applied as a credit (186) on said judgment. We think there is no error in allowing the receipt to go in evidence.

The sixth assignment is, that the Court erred in permitting the evidence of William Garner to charge the plaintiff $6, with which he had the defendant charged as a tax fee on an execution issued in favor of John Risher v. Chas. S. Hempstead. Under this execution Garner, as deputy to Hays, sold a tract of land; Risher, the plaintiff, became purchaser, and wanted a deed for the land without paying the mone}, which was at first refused; but afterwards the deed was made at the instance of Evans, plaintiff in this case. No money here came to the Sheriff’s hands by means of Evans, or rather at his instance. However the Sheriff'may have made himself liable to the other officers of the Court, he certainly ought not to answer to Evans for his part of the costs. There is then, we think, no error here.

The seventh assignment of error is, that the Circuit Court erred in rejecting certain executions offered by the plaintiff to charge the defendant with the tax fees endorsed thereon as coming to the plaintiff. It is clear that when money has been received by the Sheriff, he is answerable to the extent of what is received. And the Court is inclined to the opinion, that when there is not enough collected to pay all the costs, the Sheriff may retain his own costs first, and pay to the other officers as they may first demand, unless the Court shall, at the return term, make an apportionment of the money received among the officers of the Court.

The Court is inclined to think that these executions mentioned in the seventh assignment of errors, ought to have been left to the jury to say whether money had not come to the Sheriff’s hands, and that the Court erred in rejecting them.

Therefore the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings in conformity with this opinion, and the appellant is allowed his costs in this Court.


author: M’GntK, C. J.,

text:
    Davis v. Scripps.
    If the Court err as a jury, the mode of redress is to ask fora new trial; if a3a Court, it should be clearly shown lhat the point of law was decided.
    APPEAL from the Cape Girardeau Circuit Court.
   M’GntK, C. J.,

delivered the opinion of the Court.

Davis brought his action of ejectment against Scripps for a lot of ground in the town of Jackson. The cause went to trial on the general issue. Verdict and judgment for the defendant. A bill of exceptions preserved the testimony given in the case. The cause was submitted to the Court without the intervention of a jury. The verdict is entered in the common form, and judgment in form rendered thereon. The bill of exceptions says that the cause and evidence were submitted to the Court,- and the Court gave judgment for the defendant; to which opinion of the Court the defendant excepts, &c.

Several errors have been assigned and insisted on to reverse this judgment. It will be unnecessary to go into an examination of the errors, because it does not appear that any distinct point was made in the Court below. Here the facts and the law were both submitted to the Court. Whether the objection goes to the error of the Court in finding a wrong verdict upon testimony too weak to warrant the verdict, or to the error of the Court in a misconception of law, does not appear. If the Court erred as a jury, the mode of redress is to ask for a new trial, and if that is improperly refused, the wrong may be redressed by this Court. But if the error is an, error in point of law, then the party should expressly bring his point before the Court in a shape clearly showing that the point of law was decided on by the Court.

As far as we have been able to look into the case, there is no error. The judgment is affirmed.


author: 'Wash, J.,

text:
    Ashabramner v. Perkins.
    If on an appeal to the Circuit Court from a Justice of the Peace, the plaintiff recover nothing, he shall pay the costs of both Courts.
    ON ERROR from Wayne Circuit Court.
   'Wash, J.,

delivered the opinion of the Court.

This was an action of account, commenced by the plaintiff in error against the defendant, before a Justice of the Peace, in which the defendant had judgment for one dollar and fifty cents. The plaintiff appealed to the Circuit Court, where, on trial, de novo, a general judgment was rendered for the defendant, and that he recover his costs, &c.

It appears from the bill of exceptions, that the papers in the cause had not been marked filed, by the Clerk, nor the cause regularly docketed, until it was called for trial, and for that reason the plaintiff moved for a continuance, which was refused. The plaintiff then moved the Court for a rule to order the Justice to certify the entries on his docket, which motion was also overruled. Upon the trial, de novo, there was general finding by the Court, (sitting as a jury,) for the defendant: Whereupon, the plaintiff moved to have judgment for costs against the defendant, on the ground that the defendant recovered less in the Circuit Court than was recovered before the Justice; the Court overruled the motion and gave judgment for costs against the plaintiff.

It is assigned for error: First. That the Court refused to continue the cause.

Second. That the Court refused the rule, prayed for against the Justice, and

Third. That the Court gave judgment against the plaintiff for costs.

It was the Clerk’s duty to have filed the paper and docketed the cause j hut it is not shown that his failure to do so, in any manner embarrassed or injured the plaintiff in the prosecution of his trial. The power of granting continuances by the Circuit Court is discretionary, and to be exercised soundly. We are not to presume that it was not so exercised in the case under consideration, and nothing appears in the record to warrant that conclusion. It was a mere clerical omission, not to file (189) the papers and docket the cause, which may or may not have affected the rights of the plaintiff. We are not to presume that it did.

Second. The object of the rule upon the Justice is not stated. From the certificate of the Justice, it would seem that a complete transcript had, been returned by him. It should have been shown in what particular the record was defective.

On the third point the law is clearly with the defendant. By the 14th section of « an act concerning costs.” Revised Code, p. 228, it is provided, that on an appeal prosecuted by the plaintiff, if he recover nothing, or be non-suited in the Circuit Court, the defendant shall recover his costs in both suits,” &c. This would be law without the statute. The 15th section of the act referred to, does not apply.

Upon the whole matter, we can see no error in the judgment of the Circuit Court, which is, therefore, affirmed with costs.


author: Wash, X,

text:
    Montgomery v. Blair.
    If a verdict be found without evidence, or upon insufficient evidence, the proper course is to move for a new trial, and except to the opinion of the Court in granting or refusing the motion. If in the progress of the cause incompetent evidence is offered, the party should except.
    ON WRIT OF ERROR from Perry Circuit Court.
   Wash, X,

delivered the opinion of the Court.

This was an action brought by Montgomery against Farrar in the Circuit Court, in which Montgomery had judgment. To reverse which, Farrar now prosecutes his writ of error. The evidence is all preserved by what is termed a bill of exceptions, beginning, be it remembered that upon the trial of this cause, the plaintiff gave in evidence,” &c., (setting out the evidence,) and concluding in these words, all of which testimony the defendant moved the Court to exclude from the jury, as not being sufficient to support the plaintiff’s action, which motion the Court overruled, to which opinion of the Court the defendant excepted.”

Without entering into a minute examination, some of the evidence given in the cause was clearly competent, and whether sufficient or not, was for the jury and not (190) for the Court to weigh and determine. This point has been repeatedly adjudged by this Court. If the jury, or the Court sitting as a jury, find a verdict without evidence, or upon insufficient evidence, the proper course is to move for a ¡new trial, and except to the opinion of the Court in granting or refusing the motion. If in the progress of the cause, incompetent evidence is offered, the party against whom it is offered should except, for it might well be, that the party offering incompetent testimony could sustain his cause by other and competent proof.

The judgment of the Circuit Court is, therefore, affirmed with costs..


author: M’Girk, C. J., Tompkins, J.,

text:
    Brown v. The Bank of Missouri.
    ). To make a letter to an agent evidence in a case, the agency must first be established.
    2, A written instrument cannot be contradicted, but may be explained by parol tes timony. (Note a.)

    ERROR from the Perry Circuit Court.
   M’Girk, C. J.,

delivered the opinion of the Court.

This was an action of assumpsit on a promissory note,- made by one Wilkison to Brown, payable at the Branch Bank in Ste. Genevieve, and endorsed by Brown to the plaintiff. The action was brought against Brown, the endorser, about three years after the note became due and payable. Brown wrote the following letter, addressed to one G. F. Strother: “Dear sir, any indulgence you think proper to give, Capt. Wilkison on his note, due the Branch Bank of Missouri, and on which I am endorser, will fuliy meet with my approbation and consent. Yours, &c.”

The plaintiff on the trial of the issue of non-assumpsit, gave in evidence the note, proved the endorsement, and gave in evidence the presentation for payment, and the protest for want of payment. But no evidence was given of notice to Brown of the non-payment. Evidence was also given that Brown was endorser for the accommodation of Wilkison. The plaintiff then offered the above letter in evidence, to establish a fact which would- dispense with notice of the non-payment. The de,(192) fendant objected to the admissibility of the letter to establish any legal fact -which would dispense with notice. The Court overruled the objection and permit•ted the evidence to be read. Wilkison was called by the plaintiff to prove some ¡facts to the cause, and did so.

The defendant then offered to prove by Wilkison, that Brown did not intend by his better to guarantee the payment of the note, but only to show his acquiescence in the course the Bank had pursued with regard to the note as the bill of exceptions stated. The Court rejected this testimony. The plaintiff had judgment. Several errors have been assigned, of which only two will be noticed by the Courts the law on the others being with the defendants in error.

The first point is, did the Court err in receiving the letter in evidence ? The objection is, that the testimony is incompetent to establish any material fact in the cause. The defendant in error insists, that this paper, by its legal effect, establishes the fact, that Brown considered himself liable, and that he treated with the Bank as a liable person, and having considered himself so, the legal inference arises, that he had legal -notice of the non-payment of the note. It is answered to this, that there is no evidence except the letter itself, to prove Strother was the agent of the Bank, and until his agency is established, no connection can be supposed to exist between Brown and the Bank, so as to create the legal presumption that Brown treated with the Bank as ■a person having on him any legal liability. But it is insisted, that the letter by treating with Strother about the note, recognizes him as the Bank’s agent. It is true the letter recognizes in Strother a power tocontr'ol the note as it respects Wilkison 3 but whether this power existed in Strother by reason that he was the ’owner of the note, or the agent of the Bank, we cannot infer from any evidence then before the Court. Nowiin this case the Court did infer that Strother was the agent of the Bank, and must have made this inference from the fact that the note was endorsed to the Bank by Brown, and from the fact that the letter recognized Strother as having a power ■over the matter. These circumstances would rather prove that Brown considered Strother the owner of the note, and if it were so, then the letter was inadmissible, because irrelevant, and' because it would belong to another party, and another cause. Strother’s agency ought to have been established before the letter could he evidence in the case. We think the testimony too slight on this point, and that the paper ■ought to have been rejected. But suppose thé agency had been established; yet (193) another question arises, which is, dees Brown by this letter acknowledge any •existing liability on him to pay the note as endorser, which would raise the legal presumption that he had notice in due time of the non-payment of the note ? What ■does the letter say ? It says not one word about present liability, nor any thing from which a jury could legally infer that any such liability did exist, and if that could not be legally inferred, then the paper was no testimony in the case.

The construction which we feel ourselves ¿empelled to give this letter, is this: that Brown neither acknowledged nor denied any present liability, nor took upon himself any new liability, except such aa might arise out of future acts of indulgence by the Bank to Wilkison. Eor he says, future acts of indulgence will meet my consent 5” and not that previous acts of indulgence do meet my consent. Suppose Brown had said that be believed in law he was liable, and had said no more. Would that be -any legal testimony that he had notice of the non-payment in clue time, and in the (absence of all other testimony ? ■ We think not. In our opinion, the whole meaning of the letter is, that full sfcbpe id given to Strother to indulge Wilkison in future, and that Brown will not avail himself of any advantages that might arise to him, if it were done without his consent 3 according to this view, the letter raised no legal evidence that nolice of uon-payipeut had been given to Brown in due time.

The remaining point to be considered is, did the Court err in refusing testimony which went to show that Brown did not intend by the writing to guarantee the payment of the money. It is contended by the defendant’s counsel, that to let in this testimony would be to contradict the written instrument, or to enlarge the obvious meaning of the letter. It is most clear that no testimony can be admitted to contradict a written instrument. But here testimony might be admitted to explain the circumstances which took place at the time the letter was made. It might be, that the letter related to another transaction.; and if so, then it would be competent to prove it, and if proved, then the letter would be no guarantee of this debt. But it is unnecessary to labor this point, because the decision of the previous point establishes* enough for the plaintiff' in error.

The judgment is .reversed, with costs, and remanded for a new trial.

Tompkins, J.,

dissenting. I do not concur in this opinion.

(a.) See Benson v. Peeble, 5 Mo. R. p. 139.


text:
    Governor of Missouri, to use of creditors of Chamberlain, v. Byrd, impleaded, &c.
    In an action on an administrator’s bond, evidence that administratrix was seen in possession of money left with her by her husband previous to his death, and money-brought to her by a person sent to ascertain the circumstances of his death, supposed to be his, is properly admitted to a jury.
    APPEAL from Cape Girardeau Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court

This was an action of debt commenced on an administration bond, in the Circuit Court, against the defendant, one of the securities of Eliza Chamberlain. Pie a, nil debit. Verdict for the plaintiff, and judgment rendered thereon. To reverse this judgment, this appeal is taken; and it is assigned for error, that the depositions of Timothy, Abigail and Emeline Flint were admitted as evidence.

The testimony of these witnesses was, that Eliza Chamberlain was seen in the possession of money to the amount of about two thousand dollars, part of which, she said, was left in the dwelling house with her by Jason Chamberlain, a short time before his death, and the rest was brought to her by a person sent to ascertain, the circumstances of his death,- and it was thought that the money was found' about the person of the deceased.-

One breach of the obligation assigned' in the declaration- isy that the said Eliza hath-not rendered a true and perfect inventory of all and singular,- the goods and chattels,rights and credits of the said deceased j nor hath the said Eliza exhibited a just and true account and inventory of all and singular the goods and chattels, rights andi credits of said deceased which have come to-her hands,- into the office- of the Circuit! Court for the-county of Cape Girardeau,-&c'.-

The evidence, it seems to this Court,- was property admitted in this hreacfe

The judgment of the Circuit Court is affirmed.


author: M’GriEK, C. X,

text:
    Collins v. Bowmer.
    Si Writ of error lies on the judgment of the Court overruling a motion to set aside*-, non-suit. (Note a.)

    a. To read,in evidence ap instrument of writing, without proof of execution, it mush; be made the foundation of the action. (Note b.)

    a. An instrument sued on, purporting to be executed by the opposite party, can be-offered in evidence, without any proof of execution.

      4, Where a bill of exceptions is doubtful, the Court will not intend any thing for the-benefit of the party whose duty it,was to make the matter plain. (Note c.)
    ERROR; from the Circuit Court of Howard, county.,
   M’GriEK, C. X,

delivered the opinion of the Court.

This was a case originating before;.a Justice of the Peace, where Collins had judgment. Bowmer appealed to the Circuit Court, and the parties went to trial; and the plaintiff, Collins, suffered a non-suii. A motion was made to set aside the non-suit and overruled by the Court. To reverse this decree of the Court the Gause is brought here by a writ of error. A bill of exceptions was taken to the opinion of the Court in overruling the motion. It has been made a question on the part of the defendant in error, fhjat a writ of error will not lie on a motion to set aside a.non-suit, and it has been shown that in some of the States, the practice is so, and in others it iss not so..

It is sufficient to say on this matter, that the case of MuTIanphy and English, AEs-. sowri Reports, p, 780, shows that a writ of error has been entertained in such a case,, nor. do we now see any reason to disturb that wjúeh we consider settled.

(196) The summons which issued from-the Justice is to answer in an action of assumpsit on an account liquidated and certain. On the trial in the Circuit Court, the plaintiff produced an account between the parties, and on the back ot the paper an acknowledgment was written-to this effect: « This day settled with William Collins, ail the within accounts, and fall in his debt sixty-seven dollars, &c.” Signed; Charles Bowmer. The plaintiff offered to give-the paper in evidence, without any proof of the hand-writing.of Bowmer to the acknowledgment, which was objected to, and the Court sustained-the objection.

The plaintiff then called on the defendant under a certain statute to give evidence in chief. The defendant.was sworn and gave evidence tending tt> deny the execution of the writing. The plaintiff then offered to give'evidence of the defendant’s declarations made before-the Justice on the trial there, which evidence was rejected by the Court. It does not appear what these declarations were, nor whether they related to the execution of the instrument. Then the plaintiff took a.non-suit.

The first error made-and relied on is, that the Court erred in refusing to let the account and acknowledgement go to the jury as an instrument declared on, it being, the foundation of the action, and: not denied by the oath'of the- defendant, according to the statute.

The second is, that the- Court erred in refusing to receive the evidence as to the declarations of the defendant made before the Justice. It is insisted by Messrs. Clark and Reynolds, counsel for the plaintiff that this paper is the foundation of the action, and that they are not bound to prove it, unless it be denied by the oath of the party. The act of the General Assembly says, (M C: p. 479,) when any suit shall be founded on any instrument in writing, purporting to he executed by the other party the same shall be received in evidence, unless the party charged to haye executed it, shall deny the execution thereof on oath. To entitle the plaintiff to read an instrument in writing under this. statute, two things at least are required. The first is, there he an instrument purporting to W executed by the defendant. And secondly, that that instrument should be the foundation-of the action in which it ia offered in evidence.

The summons in this case says, the action is founded on an account liquidated and made certain.

This description does not imply any execution of an instrument in writing by the (197) party charged. Where an account is liquidated and certain, the parties must have accounted together, but accounting together may he affected without writing at all about the matter, and-for any thing appearing by the summons, it may have been the case here. But it is said that the acknowledgment and the account are to be considered as one. This is not the case. The acknowledgment refers to the account and testifies to two facts; one is, that the account within is settled, and the other is, that a certain sum is due by Bowmer to Collins. Had this acknowledgement been referred to at all by the summons in such a way that the Court could see that it was the thing sued on, the plaintiff would have been entitled to read it without any proof. But as the matter is, he could not do so. There is no error in this point.

Upon the second point it will be -sufficient to say, that we cannot say, only by conjecture, what the declarations were which the plaintiff offered to give evidence of. These declarations might or might not have related to the matter in issue. It is believed to be -a rule of law, that- where a hill of exceptions is doubtful, the Court will' aot intend any thing for the party, whose duty it was to malee the matter plain..

Unless, therefore, we could see what the testimony rejected would have tended to prove, we cannot say whether the party was injured or not.

An objection was made that on the trial, wherein the non-suit was had, the ex-, captions should have been taken. This objection is not good, and. so thought the. Supreme Court of Kentucky, 4 Bibb. E. 278.

(a.) See Johnson v. Strader & Thompson, 3 Mo. R., 360.

Howell v. Pitman, 5 “ “ 347.

(b.) See Maupin v. Triplett, 5 “ “ 423.

(c.) See Stewart v. Small, 5 “ “ 528.

Vaugh v. Montgomery. 5 “ “ 532.

The judgment of the Circuit Court is affirmed, With costs.