text:
    The State, Respondent, v. Martin, Appellant.
    1. A. was indicted for stealing certain cattle alleged in the indictment to be the property of B. At the trial, one C., who had been summoned as a juror, stated, upon his voir dire, that he knew the cattle alleged to have been stolen; that his brother had once owned them, and had sold them to one K., who had sold them to B. Held — the allegation as to B.’s ownership not being controverted — that C. was a competent juror.
    2. Although cattle may have wandered away from the owner’s enclosure, and the owner may not know where they are, yet if another coming across them drives them off and converts them feloniously to his own use, he is none the less guilty of larceny because he is ignorant of their true owner and their owner may not know where they are; the ownership draws along with it the possession under such circumstances.
    3. Hearsay testimony is inadmissible in evidence.

      4. Where declarations or statements made by an accused person are admitted in evidence against him, he has a right to insist that the whole of his statements and not a portion merely shall go before a jury; what credit shall be attached to the whole, or any part thereof, is a matter exclusively for the jury.

      Appeal from Benton Circuit Court.

    This was an indictment for grand larceny. The indictment charged the defendant, William Z. Martin, with felo-niously stealing two oxen, the property of Stephen L. Cheat-ham. The court gave the following instructions at the instance of the prosecution: “ 1. If the jury believe from the evidence that said Cheatham was the owner and possessed of the cattle mentioned in the indictment, and that defendant knowingly took and drove them away, in Benton county, against the consent of said owner, without any claim of right, and with the intent to deprive said owner of them and to convert and appropriate them to his own use, and thereby to defraud said owner of them, they will find him guilty. 2. If the jury believe from the evidence that said Cheatham was the owner of the cattle and that they strayed away from him and went to Mr. Baker’s, ahd while they were at Baker’s and at the time defendant took and drove them away (if he did so) said Cheatham was still the owner of them, then the said ownership drew to said Cheatham the possession, and the defendant is not the less guilty from the fact of having taken them at said Baker’s, nor from the mere fact of their having so strayed away, if the facts otherwise fix his guilt.”
    The court gave certain instructions asked by defendant, but refused the following: “ 7. If the jury shall believe from the evidence that tlie cattle had strayed away from Cheatham before he moved’ away from the place the cattle strayed from, and that Cheatham afterwards moved six or seven miles from that place, and that Cheatham did not know where they were, yet, although the defendant may have been the person who took the cattle, it was not a felonious taking of the cattle from Cheatham’s possession. 8. Whenever the declarations of the defendant are given in evidence to establish a fact against him, and his declarations when proved tend to prove a fact in his favor, whatever he said in his own favor should be taken as true unless it is disproved by other evidence in the cause. 9. If the jury shall believe from the evidence that the cattle strayed away from Cheat-ham, and he did not know where they were, and that they were running about the premises of the witness Baker, and that it was not known who was the owner of them, and that there were no marks about them so that the owner could be known, they were lost property within the meaning of the law. 10. If the jury shall believe from the evidence that Cheatham lost the cattle out of his possession and that defendant found them and did not know the owner of the same, and, believing that they were lost, took them openly in the day time, they should acquit him. 11. If the jury shall find from the evidence that the cattle had been lost out of the possession of Cheatham for a considerable length of time, the defendant is not required to prove how he came into the possession of the property to disprove any presumption of guilt.”

      Johnson ¿f Ballow, for appellant.
    I. The court erred in determining that Gallaher was a competent juror. He had formed am opinion on a material fact to be tried. He knew the cattle to be Cheatham’s.
    II. The court erred in refusing to admit the testimony as to Kendrick’s admissions ; also in giving the second instruction asked by the state. (See State v. Conway, 18 Mo. 321.) The instruction was calculated to mislead the jury. The property had strayed away; it was lost to the owner. <(3 Chitt. C. L. 916.) The court should have given the seventh instruction asked by defendant. Defendant could not be convicted of grand larceny for taking stray cattle. He could only be indicted under the act concerning strays. (R. C. 1855, p. 1511, § 33, 34.) At most he could only be indicted under section fifty of article three of the act concerning crimes and punishments, (R. C. 1855, p. 582,) or under the act concerning strays. The court should have given the eighth instruction. (1 Greenl. Ev. § 218; 2 Carr. & Pag. 629.) The court should have given the ninth and tenth instructions. (18 Mo. 321.) So also the eleventh. Cheat-ham had lost the cattle. They had been out of Cheatham’s possession at least three months before they were found in Martin’s. (See 15 Mo. 168 ; 12 Ill. 259.) The court should have sustained the motion in arrest. The property is not described in the language of the statute.
    Ewing, (attorney general,) for the State.
    I. Gallaher was a competent juror. When a juror qualifies himself under the statute and the court below accepts him, this court can not say error was committed. (Baldwin v. State, 12 Mo. 226.) There was no error in excluding the testimony as to one Hendrick’s admissions. The instructions given presented the law arising upon the facts properly to the jury. (2 Har. 530 ; Whart. 651; 2 Tyler, 399, 387.) Our statute concerning lost property would seem not to apply to domestic animals. Such animals when strayed are not considered as lost. The seventh instruction asked by defendant was properly refused. It withdrew from the jury the question of felonious intent, and restricted the issue to the single question of knowledge on the part of Cheatham as to where the cattle were when taken by defendant. The penalty in the thirty-third and thirty-fourth sections of the stray law is cumulative, and for an offence not amounting to larceny. The penalty is for a conversion of the stray after it has been taken up and posted. There could be no larceny in such a case, because the original taking and possession were lawful. The eighth instruction was properly refused. (Wharton C. L. 320; 9 Leigh, 635.) So the ninth and tenth instructions were properly refused, for the reasons that rendered it proper to give the second instruction. The indictment is sufficient. (22 Mo. 453.)
   Napton, Judge,

delivered the opinion of the court.

The first point presented by the record relates to the cofn-petency of the juror Gallaher, who, upon his voir dire, stated that he knew the cattle alleged to have been stolen; that his brother had once owned them and had sold them to a man named Kerr, who had subsequently sold them to Cheat-ham, the person alleged in the indictment to be their owner. This juror the court declared competent, and the defendant was compelled to get rid of him by a peremptory challenge, so that, although the juror did not sit in the case, the question of his competency may be considered as fairly before this court, seeing that the circuit court deprived the accused of one peremptory challenge to which he was entitled if the juror be held incompetent.

Our statute provides that “it shall be a good cause of challenge to a juror, that he has formed or delivered an opinion upon the issiie, or any material fact, to be tried.” (R. 0.1855, p. 1191.) No question has heretofore arisen upon the construction of this provision of our criminal practice act; nor have we observed any case in any other state, where similar statutes have been passed upon by their courts. Ordinarily, there can not be much practical difficulty in enforcing what seems to be the spirit and object of the provision, which is to secure impartial juries ; and when questions of doubtful character arise, the courts of criminal jurisdiction— as a matter of convenience and precaution, and with a view to avoid the possibility of subjecting the state to unnecessary cost, as well to secure to the accused every reasonable satisfaction in selecting his triers — would usually set aside persons of questionable competency, when a bystander could be called in without delay, who would be unexceptionable to all parties. It is probably because of'this practice on the circuits — and a very commendable one, too — that no cases of this sort have ever come up to this court. We will, of course, not be understood as casting any censure upon the court, which tried this case, for not avoiding the question presented here by calling up another juror; for there may have been very good reasons, which influenced the action of the court, not at all apparent to this court on the record. We merely allude to the usual practice on the circuits as the probable reason why such questions have never reached this court.

The general object of the law under consideration is undoubtedly to secure impartial juries. To what extent, however, it was intended to embrace allegations in indictments, which are formally necessary and which-are in some sense material to be made and proved, is a matter of some embarrassment. There must, we think, be some qualification placed upon the term “ material,” to enable justice to be administered without great inconvenience. What that qualification ought to be, and what class and character of allegations of facts may be considered immaterial within the proper meaning of the statute, is not so easy to define. It is more easy to decide cases as they arise than to lay down in terms any fixed or clear rule to govern all which may occur. Venue is necessary to be laid and proved in every indictment for crime. It is material to the prosecution to establish that the crime alleged was committed at a place within the county, for this is essential to the jurisdiction of the court. Does the knowledge that the alleged locality of an offence is within the county named in the indictment disqualify a juror from sitting on the case ? We see at once that this fact, material as it undoubtedly is to the success of the prosecution, has no connexion whatever with the guilt or innocence of the party accused, and that it is a fact known probably to nine-tenths of the inhabitants of the county, and therefore in all probability will not be controverted on the trial. In an indictment for murder, the fact of the killing is an essential of crime ;. but would a man, who accidentally was present at the burial of the murdered person and saw his dead body, and knew him when alive, be excluded as an incompetent juror on the trial of the supposed manslayer ?. Such facts as we have referred to are material in one sense. They constitute the basis of the prosecution; but they are independent facts, having no bearing on the question to be tried of the guilt or innocence of the accused. They are just as consistent with the guilt of any other person as they would be with the guilt of the accused ; and their establishment does not make a single step toward a conviction. If these facts are controverted facts, it may be that a person who has formed an opinion upon them ought to be excluded from sitting on the jury; but, where they have no bearing on the guilt of the accused and are likewise not controverted on the trial, it is plain that the juror is, in every material respect, impartial and competent.

In the present case it is sufficient to decide the point presented, without undertaking to lay down a general rule by which the materiality of all issues are to be tested. The juror G-allaher had simply a knowledge of the identity of the cattle alleged to have been stolen. He also knew or believed they had at one time belonged to Cheatham, the person in whom the property was laid in the indictment. Whether Cheatham owned the property at the time of the taking or of the trial, it does not appear that the juror had any information. But if it had so appeared, the question would not be materially changed; for this court is not called upon, as the circuit court was, to pass upon the competency of Gallaher without any information as to what issues would be controverted in the cause, except such as was furnished by the' pleadings; but we are called upon, after the trial aiid verdict and with the record of all the proceedings before us, to say whether the decision of Gallaher’s admissibility on the jury was in any way prejudicial to the accused. The fact of the ownership of the cattle by Cheatham, as the record shows, was not a controverted fact upon the trial. There was no dispute about it. If it had been controverted, it was not a fact which had any connexion whatever with his guilt or innocence, although its successful contradiction might have defeated this particular prosecution. Whether the cattle belonged to Cheatham, or to any one else than the defendant himself, was in truth nowise material. It was larceny in the defendant, if the other facts and circumstances in the case so made it out; and the only effect of disproving it was to turn the accused round to another prosecution. But, in this case, the fact was not controverted, and as it had no connexion with the guilt of the accused, which was the issue tried by the jury, we think that Gallaher’s competency can not now be disputed; or, in other words, that the decision of the circuit court, declaring him to be competent, affords no ground for reversing the judgment.

The principal ground of defence upon the trial of this case was, that the cattle alleged to have been stolen were not in the possession of the owner, but were estrays; that the owner did not know where they were ; that there were no marks or brands upon them by which a stranger could ascertain their ownership; that, in short, they were lost goods, and no larceny could be committed by the finder’s converting them to his own use. A variety of instructions were asked by the defendant, the object of which was to assert this position; but they were all refused by the court; and the law laid down to the jury by the court was, that the ownership drew along with it the possession so as to make the defendant responsible for stealing if the other circumstances in proof would justify such a conclusion. And this view of the law we take to be the correct one. In East’s Criminal Law it is declared that “ where one finds a purse in the highway, which he takes and carries away, it is no felony, although it may be attended with all those circumstances which usually prove a taking with a felonious intent, such as denying or secreting it.” (2 East 0. L. 99.) The authority, however, qualifies this doctrine so far as to add that he must be understood as speaking of a finder who really believes the goods have been lost by the true owner, and does not color a felonious taking under a mere pretence. He therefore concludes that, where a man’s goods are in a place where ordinarily they are, the pretence of finding will not excuse the person converting them to his use.

Without undertaking to say how far this doctrine about lost goods is to be taken as it is laid down in the old books, we dismiss any further consideration of it as inapplicable to this case. Whatever may be the law concerning domestic animals, such as horses and cattle, in England, we do not consider the doctrine of the English criminal lawyers concerning lost goods as applicable to domestic animals in Missouri. It is with no propriety, either in view of custom or statutory law, that animals can be called lost goods here simply because they are outside of the owner’s enclosures and the owner does not know where they are. Such animals are not lost in the proper sense of the term; nor can the person, who comes across them and feloniously appropriates them to his own use, with any propriety be called the finder, as he might be if he, with the same felonious intent, picked up a purse upon the highway. A person does not lose the possession of his horses or cattle here because they may happen to be outside of his enclosures and he may not be able at any given time to lay his hands upon them. They are still in his possession, as much as though they were in his stable or pasture. Nor can it make any difference that they have gone five or ten miles from their ordinary range. The owner is as entirely ignorant of their precise position in the former as in the latter case; and the fact that they are branded or not branded with the owner’s name is perfectly immaterial. It is sufficient for the person who comes across them to know that they are not his property; and if he drives them off and converts them feloniously to his own use, he is as much guilty of larceny, when he is ignorant of their true owner and their owner is ignorant of where they are, as he would be if both he and the owner had full knowledge on both these points.

Our statute in relation to lost money and goods has no relation to criminal law. It is merely a mode pointed out by which the ownership in such property may be changed, and imposes certain duties upon the finder of the property, which may be discharged or neglected without involving any criminal imputation. The same observation will apply to our stray laws. They have nothing to do with the criminal law, and are merely directory, to promote commerce and afford facilities for the reclamation of stray animals.

The testimony offered by the defence in this case, that one Hendricks admitted he had sold a yoke of oxen to defendant, was properly excluded by the court, because it was hearsay. Hendricks himself should have been called.

Instruction No. 8 was properly refused. That instruction is in these words : “ Whenever the declarations of the defendant are given in evidence to establish a fact against him, and his declarations, when proved, tend to prove a fact in his favor, whatever he said in his own favor should be taken as true unless it is disproved by other evidence in the cause.” This instruction asserts principles altogether at variance with the established rules of evidence. A party has a right to insist upon the whole of his statements going before a jury, if any portion of them is offered against him, but whether the whole or any part of them will be or ought to be credited by the jury is a matter for the jury exclusively. They may be intrinsically unworthy of credit, or be discredited by other testimony, or the reverse; but there is no iron rule to be laid down for the guidance of the jury as to what they will believe or what they will not believe. The jury are to judge of the matter and not the court.

The fiftieth section of the third article of the act concerning crimes and punishments had nothing to do with this case. There was no pretence that the defendant had posted the oxen. The question as to the intent in taking the cattle was submitted to the jury upon instructions fully explaining the law of larceny, and enabling them very easily to distinguish a mere neglect of the stray law from a felonious conversion.

Judgment affirmed;

the other judges concurring.


source: Caselaw Access Project

author: RichaRDSON, Judge,

license: Public Domain

text:
    Sone, Plaintiff in Error, v. Palmer, Defendant in Error.
    1. If a plaintiff voluntarily suffers a nonsuit before the court has made any ruling prejudicial to him, the supreme court will not interfere.
    2. To render an assignment of a patent right or of an undivided part thereof valid, it is not necessary that it should he recorded in the United States patent office; the assignee will have a vendible interest without such record.
    3. A clerk in the patent office, whose employment consists chiefly in making examinations in relation to assignments and other papers recorded and filed in the office, is a competent witness to prove what documents are of record or on file in said patent office.
    4. Where a party relies upon an instrument purporting to have been executed by an agent, he must prove the agent’s authority.

      Error to Moniteau Circuit Court.

    This was an action commenced before a justice of the peace on a promissory note for one hundred and fifty dollars, dated October 5, 1855. At the trial the plaintiff read in evidence the note and rested. The defendant then offered to read the deposition of one William E. Hall, taken in Washington city. In this deposition Hall stated that he was then a clerk in the United States patent office; that his business in the office was chiefly to make searches and examinations in relation to assignments and other papers recorded and on file in said office; that he had carefully examined the records of assignments of patents and found no assignment to L. D. Sone of record prior or subsequent to October 5,1855, of a patent to Moses D. Wells, December 14, 1852. The plaintiff objected to the reading of this deposition on the ground that it did not appear that said Hall was the keeper of the records in the patent .office or that he had access to all the records of assignments of patent rights. The court overruled the objection and admitted the deposition. The defendant then read in evidence two deeds — one dated October 2, 1855, the other October 5, 1855. By these deeds plaintiff Sone assigned to defendant Palmer the exclusive right to vend Wells’ seed planter in certain counties in the state of Missouri. In these deeds there were recitals of assignments duly recorded in the patent office from Moses D. Wells to Alpheus Wells, and from the latter to Isaac Scott. The plaintiff then offered, as appears from the bill of exceptions, “ to read in evidence a certain deed to him dated March, 1855, conveying to said Sone, by one J. M. Leach for Isaac Scott, the right to sell said patent in said counties.” This deed was excluded on the objection of defendant. The plaintiff thereupon suffered a nonsuit, with leave, &c.

      Baite and White, for plaintiff in error.
    I. The court erred in permitting the deposition of Hall to be read. It was not the best evidence the nature of the case would admit of. He was only an employee in the patent office. It does not appear who employed him. It does not appear that he was there by authority of law; that he had access to all the records of assignments, or that he was keeper of the records of assignments in said office. (T Pet. 685; 1 G-reenl. Ev. 485.) The court erred in excluding the deed from Scott. It was competent for the plaintiff to show what sort of a title he conveyed to defendant. Plaintiff could show that even if there was an irregularity in the conveyance to plaintiff, yet that defendant was aware of the irregularity at the time of his purchase. The deeds contained no covenants of warranty. They only purport to convey the interest that Sone had in the counties mentioned. It is not pretended that any false or fraudulent representations were made to defendant, or that Sone bad sold to any one else, or that defendant has been in any way molested or hindered in the enjoyment of the rights acquired by him under the deed. (16 Mo. 411; 21 Mo. 838.) It was improper for the court to hear any evidence as to whether one deed had been recorded in thirty days from its execution. The assignment was not void for want of record.
    Parsons, for defendant in error.
    I. The deposition of Hall was properly admitted.
    II. The deed of assignment offered in evidence by plaintiff was properly excluded. What authority Leach had to assign any right of Scott does not appear.
   RichaRDSON, Judge,

delivered the opinion of the court.

There is nothing in the record that discloses the consideration of the note sued upon ; but it is conceded by the counsel that it was executed in consideration of an assignment, by the plaintiff to the defendant, of the right under the patent to Moses D. Wells for his seed planter for a specified district in this state. The defendant, erroneously assuming thp law to be that the plaintiff had no vendible interest in the patent because he had failed to have the assignment to him recorded in the patent office at Washington, rested his defence upon simply proving that there was no record in the patent office of an assignment to the plaintiff. All the evidence introduced by the defendant did not tend to make out his defence and amounted to nothing; but, although it was admitted, we see no reason why the plaintiff voluntarily suffered a nonsuit. The court had not instructed the jury on any question of law, and had not improperly ruled any point in the case to his prejudice; and this court will not interfere when parties voluntarily suffer nonsuits before any improper decision hurtful to their case has been made. (Schutler’s Adm’r v. Beckwinkle’s Adm’r, 19 Mo. 647.)

The eleventh section of the act of Congress of 1836, chap. 357, provides that every patent shall be assignable, either as to the whole interest, or any undivided part thereof, by any instrument in writing; which assignment — and also every grant and conveyance of an exclusive right under any patent to make and use, and to grant to others to make and use, the thing patented within and throughout any specified portion of the United States — shall be recorded in the patent office within three months from the execution thereof. But it is not declared that the assignment, if not recorded, shall be void; and it is held that the recording of an assignment is not indispensable to its validity, and that the statute is merely directory, for the protection of bona fide purchasers without notice. (Brooks v. Bryan, 2 Story, 526; Pitts v. Whitman, id. 614.)

The only objection taken by the plaintiff to the reading of Hall’s deposition was that it did not appear he was the keeper of the records in the patent office. But the witness testified that he was a clerk in the office, and that his employment consisted chiefly in making examinations in relation to assignments and other papers recorded and filed in the office ; and we think he was quite as competent to prove what documents were in the office as the head of the bureau.

The assignment to the plaintiff from Scott is not contained in the bill of exceptions, but it is stated that it purports to have been executed by J. M. Leach for Scott. As the defendant had made no case, it was unnecessary for the plaintiff to offer any rebutting evidence ; but as he chose to present a paper purporting on its face to have been executed by an agent, the court properly required him to produce the agent’s authority.

The other judges concurring, the judgment will be affirmed.


author: EichaRDSON, Judge,

text:
    Willis, Plaintiff in Error, v. City of Boonville, Defendant in Error.
    1. The mayor and board of councilmen of the city of Boonville have power, under the charter of said city, by ordinance to provide for “ licensing, taxing and regulating auctionsthey may prohibit persons from, exercising the business of auctioneers without license by such fines and penalties as they may think proper, although the same should exceed ninety dollars.
    2. The mayor of the city of Boonville has jurisdiction over all cases arising under the charter and the ordinances of said city, although they should involve the assessment of a fine or penalty exceeding ninety dollars.

      Error to Cooper Circuit Court.

    Tliis was an action in the nature of an action for money had and received against the city of Boonville by the corporate name and style of the “ Mayor, councilmen and citizens of the city of Boonville.” The plaintiff was arrested under a warrant by a constable of the city of Boonville for a violation of an ordinance of said city in relation to auctions, approved May 10, 1845. The following is the third section of said ordinance: “ Sec. 3. Every person who shall exercise the trade or business of an auctioneer, by selling any goods or other property subject to a tax by law of this state regulating auctioneers, without a license, shall forfeit and pay to the use of the city, for every sale, not less than one hundred dollars, to be collected as other fines.” The plaintiff was ■taken by the constable before the mayor, who imposed a fine of one hundred dollars. The mayor made out a fee bill for the amount of the fine and costs and handed it to the constable. The plaintiff paid said fine and costs, amounting to the sum of one hundred and four dollars and sixty cents. No execution was issued by the mayor. The circuit court admitted in evidence, against the objection of plaintiff, a transcript of the docket of the mayor, which stated that Willis, the plaintiff in this suit, confessed his guilt.
    The court, at the instance of the defendant, gave the following instruction: “ 1. If the jury believe from tlie evidence that the sum of one hundred and four dollars and sixty cents sued for by plaintiff is the amount of a certain fine or penalty imposed by the mayor of the city of Boonville on defendant for an alleged violation of an ordinance of said city; that defendant had legal notice of said suit or proceeding before said mayor, and upon the rendition of judgment thereon paid off the same, amounting to the sum aforesaid, without any appeal or application for an appeal from said judgment, they must find for the defendant.”
    The court refused the following instructions asked by plaintiff: “ 1. The jury are instructed that the ordinance of the city read in evidence and under which the fine was imposed on plaintiff was and is null and void, and conferred no authority on the mayor to impose said fine; and if the jury believe from the evidence that the plaintiff was arrested by the constable of the city and compelled to pay said fine, then they will find for the plaintiff the amount so paid by him, and may allow interest thereon at the rate of six per cent, per annum from the time it was so paid. 2. The jury are instructed that if there was a judgment against the plaintiff rendered by the mayor of the city under the ordinance in question, and the amount of said judgment was collected by an officer of the city under the direction of the mayor, then the payment thereof by the plaintiff was not voluntary, and he is entitled to recover it back. 8. The ordinance of the city under which the fine was imposed was and is void, and conferred no authority upon the city or its officers to impose or collect said fine, and the plaintiff is entitled to recover the amount he paid to the city back again, and the jury will find their verdict for plaintiff for the amount so paid by him.”
    The plaintiff took a nonsuit, with leave, &c.

      Douglass ¿f Hayden, for plaintiff in error.
    I. The jurisdiction of the mayor of the city of Boonville is limited. It is not the policy of the law to confer unlimited jurisdiction upon inferior1 courts and magistrates. By the general law the jurisdiction of justices of the peace is limited. The legislature seems to have conferred upon the mayor only the jurisdiction of a justice of the peace. (Sess. Acts, 1839, p. 299, § 28.) By the act of February 15, 1841, (Sess. Acts, 1841, p. 306,) he is expressly made a justice of the peace. A justice of the peace can not try an action for any penalty exceeding ninety dollars given by any statute of this state. (R. C. 1855, p. 925, § 2.) The penalty imposed by the ordinance in this case is one hundred dollars. The corporate authorities had no power to enlarge the jurisdiction of the mayor beyond that of a justice of the peace. The ordinance is therefore void. (City of Fayette v. Shafroth, 25 Mo. 445; Harrison v. State, 10 Mo. 686; 9 Mo. 692.)
    II. The imposition of the fine being illegal and the pay-m'ent compulsory, it may be recovered back. (Elliott v. Swartwout, 10 Pet. 137; 4 Pick. 361; Preston v. City of Boston, 12 Pick. 7 ; Hearsy v. Buyn, 7 Johns. 179 ; Ripley v. Gelston, 9 Johns. 201; Irving v. Wilson, 4 D. & E. 480 ; Quinette v. Washington, 10 Mo. 55; Broom’s Leg. Max. 195; 2 Smith, Lea. Cas. 324; Pickering v. Coleman, 12 N. H. 148.)

      Vest, for defendant in ei’ror.
    I. The mayor did not exceed his jurisdiction in imposing a fine.of one hundred dollars. (Sess. Acts, 1839, p. 297, § 11; Sess. Acts, 1847, p. 183, § 3; Sess. Acts, 1841, p. 306.) The case of the City of Fayette v. Shafroth, 25 Mo. 447, is inapplicable to this. The charters are widely different. The ordinance is legal. The payment was voluntary and the plaintiff can not recover it back. The plaintiff did not appeal. No execution was issued. No defence was made. (Walker v. City of St. Louis, 15 Mo. 573 ; 20 Mo. 143 ; 10 Pet. 153; Chitty on Contracts, 190 ; 2 Smith, Leading Cas. 323; 25 Mo. 597; 1 Peters, 15.)
   EichaRDSON, Judge,

delivered the opinion of the court.

The eleventh section of the charter of the city of Boon-ville (Sess. Acts, 1839, p. 297) confers upon the mayor and board of councilmen the power to provide by ordinance “for licensing, taxing and regulating auctions;” and there can be no doubt about their authority to prohibit persons from exercising the business of auctioneers without license by such fines or penalties as they may think proper to impose. There is no limitation on the power; and no reason is perceived why the fine or penalty prescribed by the ordinance may not exceed ninety dollars.

The ordinance under which the plaintiff was fined fixed the penalty at not less than one hundred dollars, and the only question in the record is whether the mayor had jurisdiction of the case. This question seems to be conclusively answered by the third section of the act to amend the charter of Boonville, approved February 13, 1847, (Sess. Acts, 1847, p. 183,) which declares that the mayor shall have exclusive original jurisdiction over all cases arising under the act of incorporation and upon all ordinances of the city.” And if a prosecution had been commenced against the plaintiff in the circuit court for violating the ordinance regulating auctions, it could have been dismissed on the ground that the mayor had exclusive jurisdiction of the case.

Independent of the amendment of 1847, the jurisdiction of the mayor would be sustained. The twenty-eighth section of the original charter provides that “ the mayor, and each justice of the peace within the city, shall have jurisdiction of all cases arising under the act of incorporation and under the ordinances of the city, subject to an appeal, in all cases above the sum of five dollars, to the circuit court.” By this section the jurisdiction is coordinate, which is afterwards made exclusive; and though justices of the peace, by the general law, had not then nor since jurisdiction in actions to recover penalties, exceeding ninety dollars, given by any statute of the state, the legislature had the power to confer a greater jurisdiction on justices of the peace in Boonville. The act of February, 1841 (Sess. Acts, 1841, p. 806,) instead of limiting, clearly enlarges the jurisdiction of the mayor. Before that time he could only take cognizance of cases arising under the charter and ordinances of the city, but by the act of 1841 he was clothed with the same jurisdiction as justices of the peace in all civil cases. The case of the city of Fayette v. Shafroth, 25 Mo. 445, is unlike this one. There the charter of Fayette only gave the mayor the same jurisdiction, in all cases, in the city, as justices of the peace have in their respective townships. But, in Boonville, the mayor has not only concurrent jurisdiction with justices of the peace in all civil cases, but exclusive original jurisdiction, without regard to the amount, “ over all cases arising under the act of incorporation and upon all ordinances of the city.”

The other judges concurring, the judgment will be affirmed.


author: NaptoN, Judge,

text:
    Billingsley’s Administrator, Defendant in Error, v. Bunce, Plaintiff in Error.
    1. Whenever it appears from the face of an assignment of a stock of goods to a trustee for the benefit of certain designated creditors, that it is the intention of the parties thereto that the grantor shall he allowed to remain in possession of the property assigned, and to dispose of the same in the usual course of business until default, such deed of assignment is a conveyance in trust to the use of the grantor within the first section of the act concerning fraudulent conveyances, and consequently void as against creditors ; it is sufficient to avoid the assignment that such appears, from a consideration of the whole instrument, to be the intent of the parties. (Stanley v. Bunce, 27 Mo. 269.)

      Error to Cooper Circuit Cowrt.

    This was au action commenced October 17,1857, against W. W. Norris and others on a promissory note for $5,643.86. A writ of attachment was issued October 17, 1857, against Norris, and Harvey Bunce was summoned as garnishee of said Norris. Upon the trial of the issue raised in this garnishment proceedings, three several deeds of trust, executed by said Norris, to said Bunce as trustee for various creditors of said Norris were adduced in evidence. These deeds are known as those marked (A), (B) and (C) respectively. The deed markpd (A) is dated October 10, 1857, and by it said Norris conveyed to said Bunce property described as follows: “ All the stock of goods, wares and merchandise of every description now in the storehouse of said party of the first part, in the city of Boonville, county of Cooper and state of Missouri, being the same heretofore belonging to the firm of Norris & Keizer, but which now belongs to the party of the first part; and also all goods, wares and merchandise which the said Norris may at any time within twelve months purchase for the purpose of renewing or replenishing said stock; also all bonds, bills, notes, accounts, books of account and choses in action which belonged to the late firm of Norris & Keizer, and which now belong to the said Wm. W. Norris (the said firm having been dissolved and the said Norris upon their dissolution having become the owner of the same) ; and also all notes, bonds, bills, debts, accounts and account books belonging to said party of the first part, and all such as may be created at any time within one year from the date of these presents ; also the following slaves [naming them] ; also the following land [describing it] : To have and to hold the said property, &c., to him, the party of the second part, and to his heirs and assigns forever. But this deed is upon the following express condition — that is to say, whereas the parties of the third part are sureties for the said William W. Norris, and also for the late firm of Norris & Keizer, to sundry persons, for various sums of money, and have agreed to become the sureties for said W. W. Norris from time to time for various amounts, for the next ensuing one year, not to exceed ten thousand dollars; now if the said William W. Norris does well and truly save the said parties of the third part, and each of them, harmless from any and all liabilities they are now under for him as aforesaid, and for the said Norris & Keizer as aforesaid, and from all they may incur as aforesaid for him, then this deed to be void; otherwise to remain in full force and virtue.” The deed then proceeds to provide that in case of default the trustee shall, at the request of the cestuis que trust or either of them, proceed to sell the property and collect the debts, &c., and apply the proceeds to the payment of all liabilities that said cestuis que trust, or either of them, might be under as sureties.
    The second deed, marked (B), was dated October 12,1857, and the property conveyed is described precisely as in the above deed. It was made to secure certain indebtedness to various parties. These deeds are those passed upon by the supreme court in the case of Stanley v. Bunce, 27 Mo. 269,
    The deed marked (C) was dated October 13,1857. The property conveyed to Bunce by this deed was described therein as follows : “ All the property and effects, real, personal and mixed, lands, goods, merchandise, &c., described in three certain deeds of trust now upon record in the clerk’s office of Cooper county, state of Missouri, which said deeds were executed by said W. W. Norris, the first to protect the payment of certain debts due by Norris to B. S. Wilson & Co., and the other two to Harvey Bunce as trustee for the benefit of Weeden Spinney, Henry Corum, John Taylor, George Cockrill and others, — for a more particular description of which said property hereby conveyed reference is made to the said deeds and the contents of the same as shown upon the record above referred to.” This deed was made to secure the payment of debts due from said Norris to various parties named therein. It was further stipulated, that in case of default the trustee should proceed to sell and apply the proceeds to the payment of the debts recited.
    At the instance of the plaintiff the court declared the law as follows: “ The deeds in evidence are void, as a matter of law, upon their face.” The court refused the following instruction or declaration of law asked by the defendant, Bupce: “ The instrument of writing produced in evidence and marked (0) is a good and legal conveyance by W. W. Norris to Harvey Bunce as trustee of the property described in the instruments marked respectively (A) and (B), and the said writing marked (C) conveys to the garnishee all the right, title and interest of said Norris in and to the goods, wares and merchandise, bonds, bills, notes, choses in action, slaves, real estate, &c., described in the writings marked (A) and (B), the said property to be held by said Bunce in trust for the benefit of the creditors of said Norris named in said writing (C), and to secure the debts therein set forth.”
    The court rendered judgment against the garnishee.

      Stephens 8f Vest, for plaintiff in error.
    I. The deed referred to as exhibit (C) does not come within the opinion of this court in the case of Stanley v. Bunce, 27 Mo. 270. There is a vast difference between this deed and those passed upon in that case. The deed now in question is a plain ordinary deed of trust to protect bona fide creditors, without a single unusual provision in any part of it. It is true it refers, for a description of the property conveyed, to the prior deeds made by Norris, which have been adjudged void by this court. It does not embrace by this reference that clause which states that the beneficiaries had agreed to become sureties for Norris from time to time. The words “ for the prtrpose of renewing or replenishing his said stock” are not a necessary part of the description and are not therefore adopted. Leaving out this clause, it is not “ a natural or irresistible inference from the face of the deed that Norris was to remain in possession and dispose of the goods in his ordinary course of business.” Norris had the right to convey the goods he might purchase in future. That part of the first deeds only is adopted which describes the property conveyed, not the surplusage. (2 Pars, on Contr. 62; Page & Bacon v. Gardner, 20 Mo. 508.)

      Douglass Sf Hayden, for defendant in error.
    I. The deed to Bunce was void on its face. (See Stanley y. Bunce, 2T Mo. 269; 24 Mo. 575, 63; 20 Mo. 503; 15 Mo. 459 ; 1 Sm. L. Gas. 59 ; 4 Comst. 580 ; Burrill on Assign. 70; 7 Paige, 568; 4 Barb. 546; 10 Watts, 237; 3 Mo. 297; Zeigler y. Maddox, 26 Mo. -575.)
   NaptoN, Judge,

delivered the opinion of the court.

In this case the deed of trust, declared void by the court of common pleas, conveyed the property by terms of description identical with those employed in the two deeds passed upon by this court in Stanley v. Bunce, 27 Mo. 269. The language of these two deeds descriptive of the property conveyed may be considered as incorporated in the deed now under consideration. The description of the property is so made as to indicate an intention of conveying, not property generally acquired in the future, but property to be acquired for a particular purpose, which purpose clearly implies a continuance of Norris’ previous business as a merchant. This business was not to be interrupted except at the instance of the trustee, and for the benefit of the cestuis que trust, and upon the happening of certain contingencies specified in the deeds. It is true, there were, in the two deeds referred to, some additional clauses calculated to strengthen the construction given to them by the court, but the present deed is substantially and essentially subject to the same objections.

Judge Scott concurring, judgment affirmed.


author: Scott, Judge,

text:
    West, Respondent, v. Best, Appellant.
    1. Where the obligation to pay a promissory note is made dependent upon the performance by the payee thereof of a condition contained in a collateral • agreement entered into between the payee and the maker, and the maker of the note waives the performance of the condition, his obligation becomes fixed and complete.
    2. Where A. conveys land to B. and B. gives his notes for the purchase money, and, there being doubts as to A/s title, both parties enter into an agreement that unless A. within a reasonable time make good title to the land, the notes should become void and B. should restore the land to A., and A. sues B. on the promissory notes ; held, that the question whether A. had made good the title to the land within the meaning of the agreement is a question of law for the court.
    3. A justice of the peace can not take the acknowledgment of a married woman of a deed conveying her real estate; the acknowledgment must be taken by some court having a seal, or some judge, justice or clerk thereof.

      Appeal from Randolph Circuit Court.

    This was an action on two promissory notes, for one thousand dollars each, executed by defendant in favor of plaintiff. The defence is that said notes were given in consideration of the sale by plaintiff to defendant of a certain tract of land the title to which had failed. It appeared in evidence that West, the plaintiff, in 1857, sold to Best a certain tract of land for two thousand five hundred dollars, and executed a deed therefor with covenants of warranty. There being some doubt as to the title, the parties entered into a written agreement, whereby, after reciting that there appeared to be some doubt as to the title to the land, it was stipulated that if West should fail in a reasonable time to make good the title, the notes should become void, and he (West) should refund to Best the portion (five hundred dollars) of the purchase money that had been paid,, and the land should be restored to West. It also appeared in evidence that in 1819 one Eliza Flesher had conveyed said tract to W. EL Ashley, but plaintiff failed to show documentary title from said Ashley. Plaintiff showed that he had been in possession for more than twenty years. The defendant read in evidence a deed executed by plaintiff in 1834 conveying the land in controversy to his son J. P. West. To rebut this evidence, plaintiff read in evidence various conveyances to himself from the heirs, the brothers and sisters of said J. P. West. Among them was a deed purporting to be executed by a guardian of one of these minor heirs; also a deed from one of said heirs and her husband. The latter deed was acknowledged before a justice of the peace, and its admission in evidence was objected to on that ground. There was also evidence tending to show that West, the plaintiff, went to defendant and offered to return to him the money received on the land and receive back the land according to the agreement; that Best refused to do this, and waived compliance with said contract by West and agreed to pay for the land. At this interview West showed to the defendant a written statement or opinion concerning his title, given to him by Judge Hall, who had formerly been his counsel in litigation concerning this tract of land. This statement of Judge Hall was read in evidence against the objection of defendant. In this statement entire confidence was expressed in the title of West.
    The following instructions, given at the instance of the plaintiff, are those referred to in the opinion of .the coiirt: “ 3. If the jury believe from the evidence, that the notes sued on were given for the land mentioned in the agreement given in evidence, and that plaintiff had, at the time of the execution thereof, or has since, acquired good title to said land, they will find for plaintiff the amount of said notes and the interest thereon. 4. Although plaintiff had conveyed to his son Perry the land and did not have his wife’s relinquishment of their title to him at the time he conveyed to Best, yet if he has since acquired title as shown by the deeds offered in evidence, the title thus acquired enures to defendant, and plaintiff is entitled to recover so far as that objection goes.”
    Other instructions were given and refused on both sides.

      Shackelford and Turner, for appellant.
    I. Title acquired by twenty years’ possession is not such as was contemplated by the agreement. Evidence of adverse possession was therefore irrelevant and ought to have been excluded. There was not even color of title in plaintiff previous to his conveyance to his son. The third, fourth and fifth instructions given for plaintiff were erroneous. The statement of Judge Hall was improperly admitted in evidence. The court also erred in giving the first instruction for plaintiff, also in giving the instruction of its own motion, also in refusing those.asked by defendant. The court erred in giving those instructions asked concerning the waiver. The guardian’s deed ought to have been excluded. The county court did not have jurisdiction of the sale of a minor’s land except for purposes not appearing to have been the object of this sale. Justices of the peace are not authorized to take acknowledgment of deeds conveying the lands of married women. The deeds from the married sisters of J. P. West should have been excluded.

      Burckhartt and Davis, for respondent.
    I. The defendant Best waived the necessity of a compliance with the contract and agreed to pay for the land regardless of any defect in the title. It was upon this point that the case turned in the court below. This waiver he could make by parol. (8 Mete. 486.) A justice of the peace is authorized under the revised code of 1855 to take acknowledgment of the deed of a married woman conveying her real estate. The instructions given placed the law of the case fairly before the jury.
   Scott, Judge,

delivered the opinion of the court.

This is an action founded on two promissory notes. The payment of the notes was made dependent on the compliance with a condition contained in a collateral agreement. It is obvious that if the performance of the condition was waived by the party in whose behalf it was to have been done, he could not afterwards resist their payment. If the plaintiff had placed his right to a recovery on the ground of a waiver of the performance of the condition, and there had been a verdict in his favor, the judgment would not have been disturbed. But there were instructions given for him which renders a reversal of the judgment necessary.

The third instruction given for the plaintiff was, we conceive, erroneous. It put the question of law to the jury. Whether the plaintiff had a good title to the tract of land, the price of which formed the consideration of the notes sued on, was a matter of law to be determined by the court. The instruction was moreover wrong in this, that it put as a hypothesis to the jury a matter about which there was no dispute ; as it is clear that, if the case was made to turn on the validity of the plaintiff’s title as presented by the record, he must have inevitably failed.

The fourth instruction given for the plaintiff is also exceptionable. A married woman can not convey her real estate by acknowledging her deed before a justice of the peace. The thirty-fifth section of the act concerning conveyances prescribes that a married woman may convey her real estate by acknowledging the conveyance and having it certified by some court having a seal, or some judge, justice or clerk thereof. (R. C. 1855, p.-.) These words, in our opinion, determine the court or officer who is to certify a a deed conveying a manned woman’s land. A justice of the peace has never had, under our statute laws, authority to take the acknowledgment of a conveyance passing the title of a married woman to her land. We are not of the opinion that the general words “ or other officer,” contained in the thirty-seventh section of the same act, were designed to change the general provision which fixed the tribunal or officer by whom the deeds of married women conveying their lands were to be certified. The thirty-fifth section determined those who were to perform such acts, and we will not presume that, by any general terms, that was unfixed which had been made firm and stable.

We do not see the propriety in giving the fifth instruction for the plaintiff. His having a color of title did not affect the merits of the controversy. If the defects of his title were not waived by the defendant, then the defendant was entitled to a good title. The instruction was of a tendency to mislead the jury.

We do not see the point of the objection to the deed of D. W. Davit, guardian, to the plaintiff. We see no impropriety in refusing the defendant’s second, fourth, fifth, sixth and seventh instructions.

The certificate of Judge Hall, as to the state of the title of tbe plaintiff, was properly admitted as evidence, it being-qualified with the direction that it was no evidence of title in him. It served to strengthen the evidence of the witness, who testified to the fact of a waiver of all objections to the title and furnished a motive to the defendant in making it.

Reversed and remanded.

Judge Napton concurs. Judge Richardson concurs in reversing.


text:
    Climer et al., Respondents, v. Wallace, Appellant.
    1. A worm fence is a part of the freehold and passes along with the land upon which it is built.
    2. Where two adjoining proprietors agree to put up a partition fence between them, each to own that portion of the fence put up by himself, and the fence built by one is mistakenly located upon the land of the other, and the latter sells his tract to a person who has no notice of the agreement as to the ownership of the fence, such purchaser will take the fence so located upon his land.
    3. The corners established by the United States surveyors in surveying the public lands are conclusive as to the actual location of the boundary lines of sections and such subdivisions thereof as are authorized by the laws of the United States; it can not be shown that the United States surveyors mistakenly located such corners.

      Appeal from Maries Circuit Court.

    The facts in evidence sufficiently appear in the opinion of the court. The court gave the following instructions at the instance of the plaintiffs: “ 1. In ascertaining the boundaries of United States lands according to the government surveys, the boundary lines actually run and marked by the public surveyors are to be taken as the true boundaries, although such marked boundaries may not correspond with the courses and distances. Courses and distances must yield to an ascertained corner or boundary, and although such corners or boundaries may have been effaced or destroyed, yet if the locality can be ascertained by-testimony, it will prevail. 2. Boundaries may be proved by a witness who is acquainted with the lines and corners run and established by the surveyor, although he never saw the land surveyed ; but if the jury find that witnesses were not familiar with lines and corners of government surveys, their evidence will be disregarded. 9. If the jury believe from the evidence that at the time of the purchase by plaintiffs, or either of them, of the south-east quarter of the north-east quarter of section thirty, township forty, of range seven west, he had no notice of the partition fence between said land and that of defendant, and was not apprised of the circumstances under which said fence was put up, and further believe that defendant wrongfully and without leave removed from the land of the plaintiff the rails claimed in his statement of facts, or any less number, they will find for plaintiffs the value of said rails so removed by defendant.”
    The court gave the following instructions asked by defendant : “ 1. Unless the jury believe from the evidence that the defendant took the rails sued for off the land of the plaintiffs, the jury will find for the defendant. 2. Although the jury may believe the defendant took the rails sued for off of the plaintiffs’ land, yet if they further believe from the evidence that, before plaintiffs purchased said land and while it belonged to Pinnell, he and defendant made the fence in controversy, with the understanding that so much of the fence made by each should be the property of- each one as made by himself; and further, that, before the payment of the purchase money and the reception of the deed by the plaintiffs from Pinnell, he informed plaintiffs or either of them of defendant’s right to said rails, the jury will find for the defendant.”
    The court, of its own motion, gave the following instruction : “ The lands of the plaintiffs and defendant being divided by descriptions as given in the deed of the plaintiffs from Pinnell, the boundary line actually run and marked by the public surveyor is to be taken and considered as the true boundary or dividing line between the parties, and the witnesses in this cause were permitted to speak of their surveys and examinations only for the purpose of explaining the means resorted to for the purpose of discovering the United States survey.”
    The jury found for plaintiffs.

      Parsons and Pomeroy, for appellant.
    I. The court erred in giving the ninth instruction. It' was not necessary that plaintiffs should have notice of the arrangement between Pinnell and defendant in regard to the partition fence. The court should have given the defendant’s third instruction. The land was surveyed by the officer authorized by the law. Defendant had the right to adopt the lines thus established. (4 Piet. 242; 4 Barr, 286.) The court erred in giving the instructions of its own motion.

      Ewing and Batte, for respondents.
    1. There was no error in the ninth instruction. The third instruction asked by defendant was properly refused. (4 Pick. 239.) Neither ignorance nor mistake will excuse a trespass. The instruction given by the court at its own instance contained no error.
   Scott, Judge,

delivered the opinion of the court.

One Pinnell and the defendant, Wallace, were owners of a tract of land adjoining each other. It seems that the two tracts were legal subdivisions of sections as required to be subdivided by the laws of the United States. They agreed to run a partition fence between them, each one to have the portion of the fence he should make. Before the fence was put up, the line was run by the county surveyor between the owners, and it was supposed that each owner had put his portion of the fence on his own land. After-wards, Pinnell conveyed his tract to the plaintiffs, Gr. & J. Clymer. The defendant, having cause to apprehend that his fence was over the line and on the land which the plaintiffs had purchased from Pinnell, removed the fence he had put up a few feet, and placed it on bis own land. There was some evidence that the plaintiffs, at the time of their purchase from Pinnell, were aware of the existence of the agreement between him and the defendant Wallace in relation to the dividing fence, and that one of them said that the defendant Wallace was entitled to the rails, as he had made and put them up, and should have them if he would let them remain where they were. This is an action for taking away or removing the rails by the defendant. There were many instructions in the case, all of which will not be noticed. There was a verdict for the plaintiffs and a new trial granted, and on a second trial there was again a verdict for the plaintiffs.

This seems to be a hard action, judging from what appears on the record, but the law must have its way. Our courts hold that a worm fence is a part of the freehold and passes along with the land on which it is built. The agreement between Pinnell and the defendant Wallace in relation to the fence did not affect the plaintiffs. They would look to the title papers of Pinnell in order to ascertain what they were buying, and, if they showed that they were entitled to the fence by reason of its being part of the estate which they purchased, they could not be affected by any agreement to which they were not parties, and of which they had no notice. Wallace, the defendant, should have seen that his agreement with Pinnell was put upon the record in such a way as to be noticed. The jury found that the plaintiffs had no notice of the agreement, for, by an instruction given by the court, the case was made to turn on the fact whether the plaintiffs had notice of the agreement between Pinnell and the defendant.

The corners established by the original surveyors under the authority of the United States could not be altered, whether properly placed or not, and no error in placing them could be corrected by any survey made by individuals or by any surveyor deriving his authority from the laws of the state. This, it is conceived, is the idea conveyed by the instruction given by the court at its own instance, which, though not very happily expressed, could not have misled the jury, as it does not appear, that the fact the fence was on the land of the plaintiffs was contested on the trial. The other surveys were offered, at least those on the part of the defendant, to show the innocency of his intention in placing the fence where he did.

Affirmed ;

the other judges concur.


author: Soott, Judge,

text:
    Long, Respondent, v. Gilliam et al., Appellants.
    1. A. conveyed to B. a slave in trust to secure and indemnify the latter against loss by reason of his being security for A. B. acting under a power in the deed of trust sold said slave to C., taking a bond to himself “as trustee of A.” for a portion of the purchase money. The slave was after-wards taken from the possession of C. by the true owner from whom A. had stolen him. Held, that there was a failure of consideration of the bond, and payment thereof could not be enforced against C.

      Appeal from Chariton Circuit Court.

    This was an action on a bond executed by the defendants, whereby they promised to pay plaintiff, “Richard Long, trustee for Benjamin E. Horne,” the sum of two hundred and six dollars. The error complained of is the striking out, on motion of plaintiff, of the answer of the defendants. In this answer the defendants allege, substantially, that the plaintiff, assuming to act as trustee for one Benj. E. Horne, sold a' certain slave to Isham R. Gilliam, one of the defendants, for eight hundred and twenty-six dollars; that said Isham R. Gilliam at the time of sale paid to' plaintiff six hundred and twenty dollars, and executed the bond in suit, with the other defendants as securities, for the balance of the purchase money ; that said Horne in his said deed of trust conveyed said negro with other property to the plaintiff to secure and indemnify him against loss by reason of plaintiff’s being his (Horne’s) security, the said Horne covenanting and representing that he was the owner for life of said slave; that plaintiff, as the agent and trustee of said Horne, sold said slave to said defendant on a credit, and conveyed the said slave to him by bill of sale, as the deed authorized him to do ; that the only consideration for said bond was the balance due on said sale ; that at the time of the execution of said deed and at the time of said sale neither the said Horne nor the plaintiff had any title to the slave, but that the said slave was and is the property of one Bibb of the state of Mississippi, from whom said Horne had stolen him; that said Bibb, by virtue of his said ownership, has taken said slave from the possession of said defendant, who has entirely lost said slave; that the consideration of said bond has entirely failed.

      Prewitt fy Davis, for appellant.
    I. The title to the slave having failed, there is no consideration for the promise, and the plaintiff is not entitled to recover. The title is presumed to be warranted. The trustee acted as the agent of Horne. In his bill of sale he refers expressly to Horne’s deed to himself. (9 Mo. 840; 21 Mo. 338 ; Story on Sales, 423 ; Biirrill on Assign. 462; 3 Sumn. 8 ; 21 Mo. 72.)

      Twrner, for respondent.
    I. There is no pretence that Long was guilty of any fraud in the sale of the slave, or had any knowledge of the defect in the title. He only undertook to sell such title as was conveyed to him by the deed of trust, without warranting it. The purchaser can not avoid paying the purchase money on the ground of a failure of title. He risked the title without warranty. In official and fiduciary sales there is no implied warranty of title. (9 "Wheat. 616 ; 8 Porter, 134 ; 1 Pars, on Contr. 456 ; 10 Mo. 157; 14 Mo. 153 ; 25 Mo. 572; 4 J. J. Marsh. 299.) The sale in this case was analogous to execution or administration sales. The maxim caveat emptor applies. Long was not acting as Horne’s agent, but as a trustee for the benefit of creditors. Even if there had been a warranty, the defence would not be good without a a lawful eviction. (Morrison v. Edgar, 16 Mo. 411.) The voluntary surrender of the property is not sufficient.
   Soott, Judge,

delivered the opinion of the court.

There is no attempt in this case to mate the trustee personally liable on any warranty express or implied, and in this respect it is distinguishable from those cited by the plaintiff’s counsel. If Horne, the grantor in the trust deed, had sold the slave without the intervention of a trustee, it would hardly be maintained that he could recover his value from the purchaser. If one steals property, he must know that he has no title, and a sale by the thief is a fraud on the purchaser, which will avoid the transaction. We do not consider the case is bettered by the interposition of a trustee, who is a mere volunteer, an agent of the grantor in the trust deed. That the trust was for the benefit of the trustee can make no difference. If a vendor can not make a title himself, it would be singular that the law should enable him to do it by the intervention of a trustee or agent. If the law is otherwise, fraudulent men have discovered a way which would be an easy one of paying their debts.

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


author: NaptON, Judge,

text:
    The State, Respondent, v. Mitchell, Appellant.
    1. A druggist who, in good faith, sells intoxicating liquor, whisky, for medical purposes, can not he rendered liable to an indictment for selling liquor in a less quantity than a gallon; he is not required to institute a strict inquisition into the motives and objects of the persons dealing with him.

      Appeal from Greene Circuit Court.

    The following is the instruction given by the court: “ If the jury believe from the evidence in this case that the defendant, in the county of Greene, within one year before the finding of this indictment, did sell any whisky in a quantity less than one gallon,- they must find the defendant guilty, unless the jury further find from the evidence that the defendant was a dealer in drugs and medicines and that the whisky was used only for medicinal purposes.”

      Waddell, for appellant.

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

delivered the opinion of the court.

The defendant was indicted for selling whisky in quantities under a gallon. It appeared on the trial that he was a dealer in drugs and medicines, and was also family physician to the person who purchased the whisky, and that he had prescribed the whisky to be used in combination with certain barks as a tonic mixture for the purchaser’s wife. The purchaser, however, used a portion of the whisky as a mere beverage for himself and gave a dram or two of it to some of his visitors. This was in the absence of the defendant and without his knowledge, so far as it appeared and occurred at the purchaser’s house after the whisky was brought from the store of defendant. The defendant, under the instructions of the court, was convicted.

In our opinion, the conviction was wrong. It is not, we apprehend, the intention of the act authorizing druggists to sell spirituous liquors to require them to institute a strict inquisition into the motives and objects of persons dealing with them, either in the purchase of medicines or liquors which are treated as such; much less are they required to prosecute any domiciliary inquisitions in order to be assured that no fraud has been practiced on them or on the law. Such an inquisition would be as odious as it would be impracticable and useless. The law has not pointed out any mode by which dealers in drugs and medicines, who are expressly authorized to sell spirituous liquors for medical uses, are to ascertain whether the liquors are bona fide intended and applied for the purposes assumed by the purchasers. It may be that there would be inherent difficulties in framing such a law. At all events the law contains no such provisions. The legislature, for reasons of public policy satisfactory to them, have thought proper to confine the dealing in liquors in small quantities to a certain class of merchants whose main business is the sale of medicines. Such dealers are allowed to sell brandy and whisky and other liquors of this description for the same purposes they are authorized to sell calomel and opium and other drugs. They have no more means of ascertaining, nor has the statute provided them with any, whether the brandy or other liquor is used for such purposes, than they have to ascertain whether the opium or calomel is. The legislature did not make them responsible for any evasion of the law by persons purchasing from them. Such a responsibility, indeed, it is plain, would render the privilege nugatory and impracticable. It may have been thought that much might be entrusted to the intelligence and good character of the class of dealers to whom this privilege was conferred, and although liable to abuse, that much good would still be effected. However this may be, the defendant was not only a druggist, and therefore authoi'ized to sell the whisky, but as a physician he had prescribed it to be used in the family of the purchaser. Surely the legislature never intended to subject him to a criminal indictment and heavy fine because the purchaser used a portion of it himself, or permitted his neighbors or servants or any portion of his family to use it for purposes other than those for which it was sold.

Judgment reversed and case remanded.

The other judges concur.


text:
    The State, Respondent, v. Wells, Appellant.
    1. A dealer in drugs and medicines is a merchant within the meaning of the first section of the act to tax and license merchants. (E. C. 1855, p. 1072.)
    2. To constitute a merchant a dealer in drugs and medicines within the meaning of the twenty-second section of the act to tax and license merchants (E. C. 1856, p. 1077) so as to authorize him, under his license as a merchant, to sell spirituous liquors in any quantity when it is used only for medical purposes, it is necessary that he should he engaged principally in selling drugs and medicines, though he may incidentally admit into his store and may vend articles not strictly falling under the denomination of drugs and medicines.

      Appeal from Linn Circuit Court.

    Tbe facts sufficiently appear in tlie opinion of tlie court.

      Prewitt, for appellant.
    I. The court erred in refusing to hear defendant’s testimony. Section twenty-two of the act to tas and license merchants (R. C. 1855, pi 1077, § 22) allows a dealer in drugs and medicines to sell liquor in any quantity when it is used only for medical purposes. The circuit court seems to have entertained the idea that defendant had first to show that the liquor was prescribed by a practicing physician. The case of The State v. Larimore, 19 Mo. 391, was decided before the passage of this act. This act says nothing about a physician.

      Living, (attorney general,) for the State.
    I. The evidence offered by defendant as to his having a merchant’s license authorizing him to sell drugs and medicines was properly excluded. It is true that the term merchant includes dealers in drugs and medicines, but it is only that class of druggists who do not combine with their appropriate business as such that of dealing in general merchandise, who may sell liquor when it is used only for medical purposes. There was no evidence that the liquor was used for medical purposes. (State v. Larrimore, 19 Mo. 392; 20 Mo. 420.)
   NaptoN, Judge,

delivered the opinion of tlie court.

The defendant was indicted for selling intoxicating liquors in quántities loss than one gallon, and the proof on the part of the State was that he did so sell. The defence offered was a merchant’s license, and proof that under this license the defendant was a dealer in drugs and medicines, and that the liquor which he sold was for medical purposes. The twenty-second section of the act to tax and license merchants prohibits a merchant from selling vinous, fermented or spirituous liquors in less quantities than one gallon, but allows a “ dealer in drugs and medicines” to sell such liquors in any quantity when it is used only for medical purposes. A “ dealer in drugs and medicines” is a merchant within the meaning of the first section of this law, and he deals in these articles under his general license as a merchant. The merchant is prohibited from selling intoxicating liquoi’S in quantities under a gallon; but the dealer in drugs and medicines, although he is also a merchant, and in fact may be engaged in selling a great variety of articles of merchandise besides drugs and medicines, is however allowed to sell these intoxicating liquors, provided they are used only for medical purposes. The law is obscure, and no mode is specified by which the dealer is to be satisfied of the purpose to which the liquor sold is to be applied. But as it is manifest that the intention of the act is to make a distinction between,merchants and dealers in drugs and medicines in reference to the power of retailing spirituous and vinous liquors, and as a merchant is not necessarily a dealer in drugs and medicines, although the latter is necessarily (under the definition of the act) a merchant, we suppose the proper mark of distinction to be found in the main and principal and leading business of the dealer. A person who, under a merchant’s license, is principally engaged in selling drugs and medicines, although incidentally admitting into his store articles not strictly falling under the denomination of drugs or medicines, would be, we suppose, within the protection of this section, and privi-¡edged to sell liquors in any quantities for medical purposes. A merchant, however, whose principal dealings was in dry goods, groceries, provisions, &c., although, as is very commonly the case in country stores, keeping a small assortment of drugs for the convenience of his customers, would not, we apprehend, be allowed to sell spirituous liquors, except in the quantities permitted under the law, to merchants. As to what assurance may be required from the dealer or the purchaser to secure a bona fide application of the liquor which is permitted to be sold for medical purposes, it is not material to inquire in this case. The testimony offered ought to have been received. The judgment will therefore be reversed and the case remanded.

The other judges concur.


author: Napton, Judge,

text:
    Hardesty, Respondent, v. Newby, Appellant.
    1. Where a mature negotiable promissory note is delivered by the payee without endorsement to an agent for collection, the possession of the note by the latter will not raise a presumption that he has authority to assign the same; the burden of proving an assignment by authority of the payee rests upon the party claiming under such alleged assignment.

      Appeal from, Weston Court of Common Pleas.

    This was an action on a negotiable promissory note for two hundred and twenty-eight dollars, dated March 10,1858, and payable one day after date. The note was drawn payable to the order of A. W. Mason. The plaintiff in his petition alleged that said Mason, by his duly authorized agent, had assigned said note to plaintiff. The defendant admitted the execution of the note by himself, but denied the assignment, and alleged that Mason had notified him not to pay the note to plaintiff. It appeared that Mason had delivered the note, some time after maturity, to one Love for collection ; that Love had no express authority to assign or transfer said note; that Love assigned said note to plaintiff by writing on the back thereof as follows : “ A. W. Mason, by W. R. Love.” The court, at the instance of the plaintiff, gave the following declarations of law: “ The law presumes that the plaintiff acquired the bill or note in the usual course of business for a valuable consideration, also that the endorsement was made by a person legally entitled to endorse and transfer the same. 2. If the plaintiff procured the note from an agent of Mason who had no authority to transfer the same, yet plaintiff is entitled to recover on the same unless the defendant proves that fact and that plaintiff had knowledge of the fraud; he is entitled to hold the same and recover on it as against the true owner. 3. If the court should believe that the party who sold the note was only an agent and had no right to transfer the note, yet his transfer is good as against the real owner unless the defendant proves that plaintiff had knowledge of the facts at the time he purchased the same.” Declarations of law asked by defendant were refused by the court. The court found for plaintiff.

      J. JV. G. F. Burnes, for appellant.
    I. The declarations of Love were inadmissible to prove the fact of agency. An agent authorized to collect is not authorized to sell and endorse. The onus was on plaintiff to prove the assignment. (10 Mo. 33.) The note was assigned or attempted to be assigned by Love after maturity. The law does not presume that the plaintiff acquired it in due course of business. (2 Greenl. § 639 ; 3 B. & Or. 45 ; Byles on Bills, 93.) The law does not presume that the endorsement was made by a person legally entitled to endorse and transfer. (7 Mo. 544 ; 9 Mo. 657 ; 9 Mo. 758.)

      Doniphan Sf Lawson, for respondent.
    I. The possession of the note by Love, the same being negotiable, was sufficient to authorize him to transfer the same to an innocent purchaser for value. (Bay v. Codding-ton, 5 Johns. Ch. 52.) Mason recognized and ratified the act of Love.
   Napton, Judge,

delivered tlie opinion of tbe court.

This was a suit upon a negotiable note, purchased by the plaintiff from one Love, who professed to be the agent of the payee, Mason, and who, in that capacity, endorsed it to plaintiff. It appeared that Mason handed the note to Love for collection, and Love had no express authority from him to sell or transfer it by assignment. The court held that the mere possession of the note by Love raised a presumption that he had authority to pass title, and that it was incumbent on the defendant, who was the maker of the note, to show that Love was not authorized to transfer the note and that this want of authority was known to the plaintiff.

This view of the subject is, in our judgment, erroneous. A negotiable note, after due and without any endorsement by the payee, occupies, so far as this question is concerned, no other position than a note not negotiable would. A party buying such paper from a stranger professing to be an agent of the payee, must establish the agency. Such agency may undoubtedly be either express or implied, but the mere circumstance of possession, when the note is not endorsed in blank, can raise no presumption either way. The natural and reasonable inference would be that the note was' in the hands of such an agent merely for collection; for if a transfer had been designed by the owner of the note, he would of course put his name on the back of it.

The case of Bay v. Coddington, 5 John. C. R. 50, does not maintain any principle conflicting with this view. The notes, in that case, were endorsed in blank, and the court held that if they had been transferred in the usual course of trade and without any notice in the purchaser of the fraud of the agent or factor, a good title would have passed. But as the transaction was not regarded as a fair one, the transfer was not considered valid. This case and others of a similar character are cases of the transfer of negotiable paper, endorsed in blank by the payee, or payable to order. The title in such cases is held to pass where there is no fraud upon the part of the purchaser, however destitute of authority may be the agent from whom the title is acquired.

In the present case, it devolved on the plaintiff, as he held the note by assignment, to prove the assignment; and as it purported to be executed by an agent, the further proof of agency was necessary. In many cases, very slight proof will establish this, owing to the previous dealings or relations of the parties. Here there was nothing to show an authority, either express or implied, but the bare circumstance of possession — a fact which could properly lead to no other conclusion than that the agent was an agent for collection and not for a sale of the note.

Judgment reversed and case remanded.

The other judges concur.


text:
    Mooney, Appellant, v. Hannibal & St. Joseph Railroad Company, Respondent.
    1. Justices of the peace have jurisdiction of actions brought against railroad corporations under the twelfth section of the general railroad act. (R. C. 1855, p. 414.)

      Appeal from Macon Circuit Court.

      Ryland 8f' Son, Palmer and Burckhart, for appellant.
    I. The justice of the peace had jurisdiction of the action. (Sess. Acts, 1847, p. 157; id. p. 247 ; Sess. Acts, 1853, p. 321; Sess. Acts, 1855, p. 414; Sess. Acts, 1851, p. 232.)

      Lamb Sf Lakenan, for respondent.
    I. The circuit court committed no error in dismissing the suit. The justice had no jurisdiction. The defendant was incorporated prior to the passage of the general railroad act of 1855. All railroad corporations existing prior to the passage of said act are exempt from the jurisdiction of justices of the peace except as in that act and in their own charters provided. (R. C. 1855, p. 414, § 38.) The exceptions here meant evidently are the twenty-second section of the general railroad law and the second section of the act to amend the charter of defendant, approved February 28, 1853, each of which sections confers jurisdiction upon justices for certain purposes, but not to try ordinary suits against corporations. At the time of the grant of the charter to defendant justices of the peace had no jurisdiction of any action against any corporation. (R. C. 1845, tit. Justices’ Courts, p.-, § 46.) The first section of the charter does not authorize suits 'against defendant in justices’ courts; nor does it confer additional jurisdiction upon justices.
   Napton, Judge,

delivered the opinion of the court.

This was a suit brought before a justice of the peace by a laborer upon the Hannibal and St. Joseph Railroad against the company, under the twelfth section of the general railroad act. (R. C. 1855, p. 414.) The circuit court held that the justice had no jurisdiction, and this is the only question presented.

The general law, which formerly prohibited suits against corporations before justices of the peace, was repealed by the act of February 17,1851. The jurisdiction in this case depends, therefore, entirely upon the construction given to the prohibition contained in the thirty-eighth section of the general railroad act. (R. C. 1855, p. 430.) That section exempts railroad corporations from the jurisdiction of justices’ courts, except as in that act and in their respective charters may be otherwise provided. The general provision in the charter of the Hannibal and St. Joseph Railroad Company, which authorizes the corporation to sue and be sued in all courts of record and elsewhere, can not be construed any modification of the thirty-eighth section in the railroad law, for the plain reason, that if any force be given to the words “.elsewhere,” or “all courts whatsoever,” the thirty-eighth section is totally destroyed and amounts to nothing. Nor is there any provision in the charter of this company or in the act incorporating the Columbia and Louisiana ■ Railroad, which is the basis of its charter, nor in any of the amendments passed at subsequent sessions of the legislature, which confers any special jurisdiction on justices of the peace in cases such as the present. This may be readily seen by reference to these acts, which are referred to in the briefs of the counsel and need not be particularly set forth here. We have seen, however, in the case of Fatchell v. The St. Louis & Iron Mountain Railroad Co., 28 Mo. 178, that the fifty-first section of the general railroad law contains a special authority to sue these corporations for certain penalties not exceeding one hundred dollars in justices’ courts, and there is also a proceeding to settle controversies between these corporations and individual proprietors concerning materials which may be needed in the construction of the road, which are commenced before justices of the peace under the twenty-second section of the act. The question in this case is, whether the twelfth section of the act, under which this proceeding was had, is another and third exception to the general provision of the thirty-eighth section.

It will be seen that this section does not specify what courts are to have jurisdiction over the proceeding provided for in it. The section does not say that the suits brought by the laborers shall be brought in the circuit court, nor that they shall be brought before justices of the peace. It is a mere matter of implication and inference as to what character of courts was within the contemplation of the act. In the absence, then, of any express declaration of the legislature as to the form designed for such proceedings, we must resort to the general policy of our legislation on this subject, and compare it with the remedies here provided. When this is done, we think the inference is very strong that the legislature designed these suits to be brought before justices’ courts. The amount authorized to be sued for will not in any case exceed the jurisdiction of justices of the peace, and in a large majority of cases will hardly exceed half the sum fixed on as the limit of that jurisdiction. A speedy settlement is also within the contemplation of the act. Only thirty days’ wages of a common railroad laborer can be sued for, and only twenty days are allowed within which to notify the company or its agent, and the suit must be commenced within thirty days after notice. The whole controversy is expected to be settled in a few months and in the least expensive manner. The law evidently was looking to justices of the peace as the courts where the suits provided for were to be brought. Indeed, to compel such suitetojs^ brought in the circuit court would, in many CMW^wE^Jj^‘s|im of money involved was very trivial, anjmujifto a virtual lenial of any redress at all. If a day laboSbrun a raikm^||Wm-pelled to go to the circuit court to rec®|jj^$í few any s’ wsjges, the necessary expenses of the litigation will j^fgifed#the amount of his recovery, and such a lTtanldym.s this jaffleln.-sive. It only encourages or permits lit^¡feí»«ygfch can do no good to cither party litigant, unless it be considered as a gain to settle the abstract question of right or wrong in a dispute.

But when we look to the other side and inquire what benefit is to be gained by the corporation in requiring suits of this description to be brought in the circuit court, the inquiry appears to lead to the same result. Of what advantage can it be to such corporations to be put to the expense of a circuit court litigation in controversies of so trivial a nature ?

It has been suggested that these suits might be scattered over a great extent of country, and in this way require the company’s agent to hunt up obscure and remote points, and in this way, perhaps, suffer a great many suits to go against them by default. It is not perceived how there can be any more difficulty or expense for the superintendent on a particular section of a road to find out and attend to a suit in the immediate neighborhood of his road before a justice of the peace in the county, than there would be for him to go to the county town and attend the circuit court. It will be seen by reference to the details of the section, that a notice is required to be served upon the agent of the company who is engaged in superintending the work for the payment of which the suit is authorized. We see no public policy, therefore, looking either to the interest of the railroad or of the laborer, which could favor a construction of the twelfth section of the railroad law so as to compel all the suits provided for in that section to be brought in the circuit court. There is nothing in the terms of the law to require such a construction, and the intent and spirit of it points altogether another way. We think the twelfth section, as well as the fifty-first and twenty-second, are to be understood as modifications of the general prohibition of the thirty-eighth section of the general railroad law.

Judgment reversed and case remanded.

The other judges concur.


author: RICHARDSON-, Judge,

text:
    Tucker, Appellant, v. Frederick, Respondent.
    1. Where an attachment is based upon two grounds, and the plaintiff establishes one of them, it can not avail the defendant any thing to show that the other ground of attachment has no basis.
    2. Declarations of the defendant in the attachment made after the attachment are inadmissible in his favor to explain away the effect of previous declarations.

      Appeal from Kansas City Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Ryland Sf sSon and Smith 8f Bouton, for appellant.
    I. The court improperly admitted the statements and declarations of defendant. The third instruction asked by plaintiff was improperly refused. The second and third instructions given for defendant should have been refused; they were calculated to mislead the jury. (See 1 Mo. 341; 6 Mo. 64 ; 12 Mo. 381.)

      Hovey, for respondent.
    I. The declarations admitted could do no harm ; they but corroborated the statement of plaintiff’s own witness, that if defendant ever had an idea of removing her goods or changing her domicil, she had abandoned the idea before the attachment.' (15 Mo. 244.) The court properly instructed the jury.
   RICHARDSON-, Judge,

delivered the opinion of the court.

This suit was commenced by attachment on the ground that the defendant was about to remove out of this state with intent to defraud, hinder or delay her creditors, and also that she was about to remove out of the state with intent to change her domicil. The defendant, by plea, put in issue the truth of the affidavit. On the trial of the plea in abatement the plaintiff introduced evidence tending to show that, two or three days before the commencement of the suit, the defendant offered to sell the lease of the house she occupied and a portion of her furniture, and stated at the time that she intended to remove to the territory of Kansas; also, that she spoke of removing to Monticello, a town in Kansas, for the purpose of keeping a boarding-house, and that, a few days after the attachment was served, she did remove to Monti- ■ cello, where she has ever since resided with her family. All the plaintiff’s evidence bore on the allegation in the affidavit that the defendant was about to remove out of the state with intent to change her domicil. The defendant was allowed to prove by one witness, that, prior to the attachment, she proposed to sell out to him, and stated that she desired to apply a portion of the proceeds to the payment of the plaintiff’s demand; and by another witness, that, after the attachment had been levied, she told him she would not have removed to Kansas but for the attachment, which had broken her up.

This evidence was improperly admitted, for the law authorizes an attachment on the simple ground that the defendant was about to remove out of the state with the intention of changing her domicil, without regard to her purposes in reference to her creditors ; and, therefore, if she intended to go to Kansas with the view of residing there, it was immaterial whether or not she intended to apply a portion of the proceeds of her property to the payment of the plaintiff’s debt; and her declarations made after the attachment were clearly inadmissible to explain away the effect of jirevious declarations.

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


author: RICHARDSON, Judge,

text:
    Irwin et al., Plaintiffs in Error, v. Chiles, Defendant in Error.
    1. A defendant can not introduce evidence to support a defence not set up in his answer. If the evidence discloses a defence not set up in the answer, the court may, in furtherance of justice and on such terms as may he fit, allow the defendant to amend his pleading so as to make it conform to the facts in proof, provided the amendment does not substantially change the defence.

      jError to Clay Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Rylcmd Son, for plaintiffs in error.

      ílovey and Sheley, for defendant in error.
   RICHARDSON, Judge,

delivered the opinion of the court.

This suit was commenced under the act of 1849, and having been tried without a jury, it was necessary that the court should find the facts on which its judgment was founded.

The plaintiff had recovered a judgment against Christopher L. Chiles in his lifetime, and the object of this suit was to subject to the payment of his judgment a tract of land which it is alleged in the petition was purchased by said Christopher of Henry T. Chiles. It is also alleged that said Christopher paid his own money for the land, amounting to three thousand dollars, but, for the purpose of cheating his creditors, and especially for the purpose of defeating the plaintiff in the collection of his demand, which accrued before that time, caused the conveyance to be made to his son, Richard B. Chiles, the defendant, who was at that time a minor. The defendant, in his answer, claimed the land as his own, alleging that he had purchased it of Henry T. Chiles. He denied that his father “ purchased or contracted for the land either directly or indirectly, or that the land was paid for with the money of Christopher L. Chiles, or purchased for his use either directly or indirectly.” He further averred that being under age he advised with his father about the purchase, who was present a part of the time the negotiation was going on, but denied that the purchase was made with his father’s money or that his father gave him the money or any part of it; that having been to California, he had by his own exertions made the money which paid for the land. The court found “ that in the winter of 1849 and 1850, in the state of California, Henry T. Chiles sold to Christopher L. Chiles the above described land for the sum of three thousand dollars cash, and, upon payment of the purchase money, said Henry executed to said Christopher a title bond for said land, binding himself to make a deed to the same on their return to Missouri; that, upon the purchase of said land, the said Christopher agreed with the defendant that, in consideration that the defendant had made most of the money that paid for the land, and the further consideration that said defendant would return and assist said Christopher to return with his family to Missouri, that defendant should have said land. The court further finds that the defendant was at the time a young man not yet twenty-one years of age, and that his father had given him his time and dealt with and recognized him as an adult; that the defendant, while in California acting for himself with his father’s consent, accumulated upwards of three thousand dollars, and that said land was purchased in fact with the money of the defendant, and that defendant did afterwards, in the spring of 1850, return with and assist his father to return with his family to Missouri, and that this agreement was not made for the purpose of defrauding the plaintiff or any other creditor.” '

It is unnecessary to notice the evidence; for, conceding that it was sufficient to warrant the finding, it is manifest that the finding was not made on the issues raised by the pleadings. The defendant did not pretend in his answer that he had purchased the property of his father, or had any agreement him on the subject, but on the contrary averred that his father did not make the purchase directly or indirectly, and insisted that he had made the contract and concluded the purchase himself directly with Henry T. Chiles without his father’s means or agency.

It is settled by the decisions of this court that a defendant can not introduce evidence to support a defence not set up in his answer; (Winston v. Taylor, 28 Mo. 82; Cowden v. Cairns, 28 Mo. 471;) and a party is not entitled to a judg ment on a finding of facts different from any theory of the case set up in the petition or answer. The judgment ought not to be grounded on a defence not made in the answer, and whenever a defence is disclosed by the evidence different from that set out in the answer, the court may, at any time, in furtherance of justice, and on such terms as may be just, amend any pleading by conforming it to the facts proved, provided the amendment does not substantially change the claim or defence. (2 R. C. 1855, § 3, p. 1253.)

Judge Scott concurring, the judgment will be reversed and the cause remanded.r