text:
    Carroll, to use of Ligget, Respondent, vs. Hardy, Appellant.
    1. Pending an appeal in the supreme court, the court helow has no power to order that the parties pay in equal parts the hire of a clerk employed by a commissioner to whom the cause was referred to take an account, and that, in default of such payment, execution issue in favor of the commissioner.

      •Appeal from St. Louis Circuit Court.

    This appeal was prosecuted by Hardy to reverse an order or decree of the Circuit Court, made in the cause of Boyle v. Hardy, whereby Hardy was adjudged to pay to C. C. Carroll, the commissioner to whom the cause was referred to take an account, to the use of one Ligget, six hundred dollars for services as clerk of said commissioner.
    Tho order was made on the 30th of November, 1852, while the case of Boyle v. Hardy was pending on appeal in this court for the first time. The Circuit Court, having heard the evidence, found that the commissioner had employed Ligget, a book-keeper, to assist in posting up and adjusting the books of the copartnership ; that Ligget rendered the services and ought to be allowed the sum of $1200, to be paid by Boyle & Hardy in equal parts ; that Boyle had paid $400, and Hardy had refused to pay any part. Wherefore it was decreed that Hardy pay to Carroll, for the use of Ligget, $600 in thirty days, and that Boyle, in like manner, pay $200 in the same time, and that in default of such payment, execution issue in favor of Carroll against the party in default.

      H. S. Geyer, for appellant.
    1. The employment of Mr. Ligget by the commissioner was not authorized by law or even by order or leave of court. Mr. Ligget was employed by the commissioner as his assistant and upon his responsibility. 2. The court was authorized only to settle the compensation of the commissioner ; but had no authority to adjust accounts between him and his servants, and order the payment by the parties to the suit. 3. If payment for the services of Ligget was allowable in any form, the amount should have been taxed as costs ; but in no case is the commissioner entitled to a decree against either party in the suit. 4. The final decree being in favor of the appellant, as between him and Boyle, the whole costs should have been paid by Boyle. He could not have a decree against Hardy for any part of the costs, nor can any officer or commissioner or assistant be entitled to a decree in his own name against the successful party in the suit for his fees or compensation. (R. 0. 1845, tit. Practice in Chancery, art. 4, Costs, § 18.)
    N. Holmes, for respondent.
    1. No appeal lies in the matter of taxation of costs in chancery cases, in a case like the present. (2 Hoff. Ch. Pr. 87. Ms op v. Lord Oxford, 1 Mylne & R. 564. R. C. 1845, tit. Costs, art. 1, § 26, § 18. 6 Yin. Abr. 332. 3 Paige, 89. 4 Mylne & Craig, 360. 4 ib. 203. 8 Cl. & Fin. 293. 1 Bro. C. 140 and note. 4 Paige, 473. 8 Mo. Rep. 53.) 2. The order for an execution to issue, conditionally, was a proper order in such a case. (2 Hoff. Ch. Pr. 90. 2 Paige, 578.) 3. The evidence preserved in the bill of exceptions shows that the allowance of costs was reasonable and just.
   Scott, Judge,

delivered the opinion of the court.

It appears that the proceedings in which this appeal had its origin, were in a cause which, at the time they transpired, was pending in this court on an appeal, with a recognizance. Such an appeal, it would seem, ought to arrest all the proceedings in the cause in the court from which it was appealed.

But this judgment is so irregular in its character, that it is hard to find a denomination under which to class it. We are at a loss to determine whether it was regarded as an original suit, or whether it is a branch of another action. However it may be classed, or under whatever denomination it may be placed, one thing is evident, that, if it is sanctioned, then the law is proclaimed that the fortune of a suitor, who is involuntarily forced into tbe courts of justice, is at tbe discretion of tbe judge ; and that, too, not for tbe purpose of responding to tbe result, not to satisfy tbe judgment, but for the payment of costs, which be and those whom be appoints may, at their discretion, incur. Here is a defendant in court, and, on motion by a stranger to the suit, a judgment for six hundred dollars is rendered against him for costs, which sum does not include half the costs charged, and none of those enumerated by law. The commissioner appointed by the court to state an account, has no authority to go out and employ what clerks, for what time and at what salary he pleases, to be paid by the litigants. It is useless to attempt to convince judges who serve for moderate salaries, and who, in the last resort, determine all controversies arising in the state, that twelve hundred dollars is a necessary expense for clerk hire, in taking the account in one single litigation, of an ordinary nature, characterized neither by the amount involved, nor other unusual circumstance. Every judge’s experience and observation should satisfy him at once, that such a charge should receive no countenance from a court of justice. He ought to listen to no witness on such a question. Shall a commissioner of a court, without authority, be permitted to raise an assumpsit against a litigant for any amount that may be thought to be just by any witness he may call for that purpose ? This course may seem harsh, and may operate in a way which we may wish could be avoided, but it is necessary to crush this thing in its inception, that all persons whatever may know that the fortunes of litigants are not at the mercy of the officers of the courts of justice. The purity of the administration of justice imperiously requires this at our hands. Nothing would so effectually undermine the courts and destroy all confidence in their integrity, as the upholding such proceedings. The court should have devised some means of taking an account acceptable to the parties, for avoiding so great an expense, which is so well calculated to heap odium upon the administration of justice. Nothing less than the consent of both parties should induce a court to incur such an expense. One party, because be may be sanguine of success, should not be permitted to conduct a suit or defence in such a way as to ruin his adversary by the payment of costs.

As both parties, in their statements, referred to the case of Boyle v. Hardy, now before us, of which this cause is a part, we have regarded the records as one, without putting the parties to the expense and delay of an amendment.

The costs of taking an account should regularly abide the event of the suit, then to be taxed as required by law. If they are paid by the party at whose instance they are incurred, the ultimate liability for them must be determined at the end of the suit. We see no warrant for dividing them between the parties before a final decree, and making each party pay one half. By entering as reasons facts alleged to have transpired at a former term, but which do not appear of record, no authority is conferred for such a course. When costs of suit are at the discretion of the court, the controversy must be terminated before that discretion can be wisely exercised.

The 81st section of the 1st article of the act concerning costs, forbids the issuing an execution for costs until there is a final judgment in the cause.

The other judges concurring, the judgment will be reversed.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    Heath, Plaintiff in Error, vs. Daggett & others, Defendants in Error.
    1. The plaintiff in an execution under which property belonging to a party other than the defendant has been levied upon and sold by the United States marshal, cannot recover from the marshal or his securities the proceeds of the sale. Nor does it make any difference that the plaintiff executed a bond of indemnity to the marshal before selling, where the law does not make it imperative upon him to sell upon receiving the bond.

      Error to St. Louis Court of Common Pleas.

    This was an action brought in 1853 against the securities in the bond of John W. Twichell, as United States marshal for the district of Missouri, to recover money collected by bim under an execution in favor of the plaintiff against Amos Sands. The facts were as follows :
    The execution issued upon a judgment of the United States Circuit Court, rendered at the April term, 1850. Under it, the marshal levied upon certain goods as the property of Sands. After the levy, George Lansing claimed the goods, and the marshal summoned a jury to try the right of property, who found in favor of the claimant. The plaintiff thereupon executed to the marshal a bond, conditioned to “ indemnify and save him harmless from all damages, costs, charges and expenses that he may sustain by reason of the levy, seizure and sale,” and the marshal proceeded and sold the property, notwithstanding the verdict of the jury, and realized upwards of $6000 from the sale, a portion of which was paid to the plaintiff. This suit was brought for the balance.
    In July, 1850, Lansing brought suit against Twichell for damages sustained by reason of the sale, and in May, 1852, recovered judgment for $8437 50, which remains unsatisfied. The suit was defended by the securities in the bond of indemnity. It was admitted, for the purposes of the present suit, that the property sold belonged to Lansing.
    At the April term, 1838, the United States Circuit Court, for the district of Missouri, adopted a rule that writs of execution and other final process upon judgments and decrees of that court, and the proceedings thereupon, should be the same as those of the state courts.
    Upon the above facts, the Court of Common Pleas gave judgment for the defendants, and the plaintiff brings the case to this court by writ of error.
    Todd, Krum & Harding, for plaintiff in error.
    1. It was lawful and proper for the marshal to take the bond of indemnity, and proceed and sell the property for the use of the plaintiff in the execution, notwithstanding the verdict of the jury in favor of Lansing’s claim. (Watson on sheriff, (5 Law Lib.) p. 196-7-8. Sewell on sheriff, (44 Law Lib.) p. 243. Bay-

      ley v. Bates, 8 J. R. 185, 189. Vancleef v. Fleet, 15 R. 147-151. Curtis v. Patterson, 8 Mo. Rep. 65. 7 Barr, 541-2. Rowe v. Cockritt, 1 Bailey’s Eq. Rep. (S. C.) 137. Fisher v. Gordon, 8 Mo. Rep. 391. R. C. 1845, tit. Executions, sec. 25.) 2. The marshal having taken the bond of indemnity and sold under its protection, the plaintiff became entitled to the proceeds of the sale. (1 Bailey’s Eq. Rep. (S. C.)137. 3. The judgment in favor of Lansing against Twiehell is no defence, because the latter could have no claim or cause of action against Heath, except by virtue of his bond of indemnity, and upon this, he could have no cause of action until he had suffered actual damage. It is not sufficient that he is liable for damages. (1 Saund. Rep. 117, in foot note. 1 Chipman’s (Vt.) Rep. 164. 14 J. R. 177. 3 Cow. Rep. 313. 7 Wend. 499. 8 Wend. 452.)

      C. D. Drake, for defendants in error.
    1. The defendants were liable to Lansing, the admitted owner of the property, for the marshal’s trespass in selling it for the debt of Sands. (State v. Moore, 19 Mo. Rep. 369.) 2. The recovery by Lansing of a judgment against the Marshal alone for that trespass, does not extinguish the liability of the defendants therefor. (Carmack v. Commonwealth, 5 Binney, 184.) 3. This case is analogous to that of an action against an officer for failing to have attached property forthcoming on execution. To such an action, it has uniformly been held to be a sufficient defence that the property attached was not the defendant’s. (Fuller v. Halden, 4 Mass. 498. Tyler v. Gilmer, 12 Mass. 163. Denny v. Willard, 11 Pick. 519. Canada v. Southwick, 16 Pick. 556. Dewey v. Field, 4 Metcalf, 381. Jordan v. Gallup, 16 Conn. 536. Gilley v. Jenness, 2 N. Hamp. 87. Saioyer v. Mason, 19 Maine, 49. French v. Stanley, 21 Maine, 512.) 4. It is right on principle, as it is sustained by authority, that when an officer makes money on execution by the sale of property which was not the defendant’s, he shall not be required to pay it to the plaintiff. (2 Dana, 297. Harper, 275. 2 Harrison, 299. 14 Ala. 541.) 5. The fact that the plaintiff indemnified the marshal for selling, gives him no right to the proceeds of the sale, after it is ascertained that the property did not belong to the defendant. The bond was given, that the property might be treated as the defendant’s until the right to it was determined by the judgment of a competent court. To allow the plaintiff to recover, after he admits that it did not belong to the defendant, and that he had caused the sheriff to commit a trespass in taking it, would be to allow him to take advantage of his own wrong. (JVew-land, v. Baker, 21 Wend. 264.)
   Leonard, Judge,

delivered the opinion of the court.

The question in this record is, whether the marshal’s securities can resist the payment of the money collected by him upon the plaintiff’s execution, on the ground that the property sold did not belong to the execution defendant, but to one who af-terwards sued the marshal and recovered a judgment against him which yet remains wholly unsatisfied.

The circumstances relied upon to establish the plaintiff’s right are, that the sale was made under a bond of indemnity, given by the plaintiff after an inquest by a jury, taken pursuant to our execution act of 1835, in which the property was found to belong to the claimant.

We are of opinion that the marshal could resist the payment on the ground suggested, and that his official securities may also insist upon the same defence. It is well settled, as a general principle, that an officer is not bound to go on with an execution against property, after ascertaining that it belongs to another, and he may, of course, resist the plaintiff’s demand for the proceeds on the same ground.

This seemed to be conceded in argument as the general rule, and the point made for the plaintiff was, that, as the officer sold under a bond of indemnity, he was bound to complete the transaction, by paying over to the plaintiff the proceeds of the sale, and to rely for.indemnity upon the bond he had taken; and that, as he had paid nothing on the judgment recovered against him, there was, as yet, no breach of that bond upon which he could retain the money on the principle of avoiding a circuity of action.

The execution act of 1845 makes it imperative upon the officer to sell when a sufficient bond of indemnity is tendered to him, and expressly provides that the bond taken shall protect him from all liability to the claimant, substituting for the claimant’s protection this bond, in lieu of the personal liability of the officer. (R. C. 1845, p. 480, 481, secs. 25, 26 and 27.)

Of course, when a bond of indemnity is given under this act, the officer must sell and pay over the proceeds to the plaintiff, and he cannot refuse to act on the old ground, that the property belongs to a stranger, and not to the execution defendant.

The execution act of 1835, however, falls far short of this, and that is the act embraced in the rule adopted by the United States Circuit Court for this district, and, pursuant to which, it is admitted the present sale was made. That act does not make it the duty of the officer to sell upon the tender of sufficient indemnity, but, leaving that wholly to his own discretion, merely provided that the finding of the jury should protect him against both parties, claimant and execution creditor; and it has never been holden in this state, it is believed, that a sheriff was bound at common law to levy and sell when tendered a sufficient indemnity.

In all this matter, the sheriff was required to act upon his own responsibility. If he sold the property of a third person, he was responsible to such person for the trespass ; if he refused to sell when he ought to have sold, he was liable to the plaintiff in the execution. The law required him to act, and held him responsible for his conduct to the party injured, leaving it to his own judgment to determine whether he would execute the writ, or return it “ nulla bona.” If he saw fit, however, to take a bond of indemnity and sell, the bond was valid against the party wbo made it, but no answer to an action of trespass by the owner of the goods.

Now, what obligations did the taking of this bond impose upon the officer under the act of 1835 ? That is the question to be settled, and we are asked to say that it estopped him from showing property in a stranger by means of a judgment subsequently recovered against him in a solemn judicial proceeding, of which the execution plaintiffs had notice, and the de-fence of which they took upon themselves as the real parties in interest. We cannot, we think, imply from the act of accepting the bond, an undertaking on the part of the officer to abstain from such a defence, nor can we discover any ground of natural equity, or principle of public policy, that will authorize us to create such an estoppel. These plaintiffs have now no right in morals to the proceeds of this property. It has been judicially ascertained, as against themselves, that it did not belong to their debtor, and ought not to have been sold ; and tho officer is now liable to tho owner for the value yet in his hands. The principle object of the bond of indemnity was to avoid a sheriff’s inquest as to the right of property, and to transfer the settlement of that question to a competent tribunal, where the rights of all parties might, be fairly ascertained. This being done, and an unsatisfied judgment standing against the officer for the property, upon what ground can we raise an estoppel, in order to put the proceeds of the sale into hands that have have no right to them, and that were, indeed, mainly instrumental in the wrong perpetrated by the levy and sale ?

It is argued, however, that the officer may never be required to refund the money, while tho plaintiff, being equally liable as co-trespasser, may yet be sued and compelled to pay the owner the value of the property sold. The answer to all this is, that, when it occurs, the plaintiff will furnish a new ground of recovery against the officer and his securities.

The judgment must be affirmed, and the other judges concurring, it is affirmed accordingly.


author: Leonard, Judge.

text:
    Walter, Defendant in Error, vs. Tabor, Plaintiff in Error.
    1. The judgment of an inferior court, affirmed in the supreme court, is a subsisting valid judgment in the court where it was originally rendered, and may he carried into execution accordingly, (ilíej/er v. Campbell, 12 Mo. Rep. 602. Wilburn v. Hall, 17 Mo. Rep. 471, affirmed.)

      Error to St. Louis Court of Common Pleas.

    Walter brought an action of forcible entry and detainer against Catheart before a justice of the peace. Catheart removed the cause by certiorari to the Circuit Court, giving bond conditioned as required by statute, in the sum of $1000, with Patrick T. MeSherry, as security. While the case ivas pending in the Circuit Court, the plaintiff moved for an order on the defendant to give additional security. This motion was sustained, and the defendant ordered to give, “ in addition to the bond already given,” a further bond, with sufficient security, in the sum of $2000. The additional bond was given, with Joseph Tabor as security. Walter obtained judgment against Catheart for the possession of the premises and $7500 damages. The case was brought by appeal to this court, and the judgment affirmed. (18 Mo. Rep. 256.) Execution thereupon issued out of the Circuit Court for the restitution of the property and for the damages. The possession of the property was restored to Walter, but no damages made.
    The present suit was brought by Walter against Tabor upon the bond in which the latter was security. At the trial, the plaintiff offered in evidence a certified copy of a record from the Circuit Court of the case of Walter v. Catheart, showing the proceedings above stated. To the reading of' this record in evidence, the defendant excepted. The plaintiff obtained judgment for the penalty of the bond, with interest, and the defendant sued out this writ of error.

      J. R. & R. F. Barret, for plaintiff in error.

      Samuel Reber and H. N. Hart, for defendant in error.
   Leonard, Judge.

The judgment of an inferior court affirmed here, is a subsisting valid judgment in the court where it was originally rendered, and may be carried into execution accordingly. This is settled practice, and has been repeatedly recognized in this court, and we cannot allow it to be now drawn in question. (Meyer v. Campbell, 12 Mo. Rep. 602. Wilburn’s Adm’r v. Hall, 17 Mo. Rep. 471.)

We discover no variance between the recognizance sued upon and the one given in evidence. Let the judgment be affirmed.


author: Leonard, Judge, Scott, J.

text:
    Walter, Respondent, vs. McSherry, Appellant.
    l. Where a circuit court, to which an action of forcible entry and detainer has been taken by certiorari from a justice of the peace, orders a bond to be given “in addition to” the one originally taken, such additional bond does not supersede the original one. (Scott, J., dissenting.)

      Appeal from St. Louis Court of Common Pleas.

    For a statement of the facts, see the preceding case of Walter v. Tabor. The present suit was brought upon the original certiorari bond therein referred to. There was a judgment for the plaintiff below.

      J. R. & R. F. Barret, for appellant.

      Reber and Hart, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The difference between this case and that of Walter v. Tabor, is, that there, the recognizance sued upon was the new one entered into in the court below, upon an order of that court requiring a further recognizance with sufficient security to be given “ in addition to” the recognizance already taken ; and that here, the suit is upon the original recognizance. We think it was competent for the court to take an additional recognizance, without superseding the old one, (R. C. 1845, tit. Forcible Entry and Detainer, art. 2, sec. 28,) and having expressly done so, the transaction ought to take effect accordingly, and not be construed so as to deprive the plaintiff of any of the security intended for him, the whole being found insufficient. What would have been the proper construction of the .transaction, in the absence of any expressed intention, is not involved in the case, and we express no opinion upon it, either way.

Judge Ryland concurring, the judgment is affirmed.

Scott, J.

In my opinion, the bond of McSherry was superseded by the bond subsequently given. The court possessed no authority to take bonds in the manner that was practiced in this case.


author: Ryland, Judge,

text:
    Myers, Appellant, vs. Schneider, Respondent.
    1. 'When a case is called for trial, the court is not hound to wait for a party to prepare an affidavit for a continuance, it appearing that he had previously had an opportunity to prepare it.

      Appeal from St. Louis Circuit Court.

    Action on an open account, commenced in March, 1851. When the case was called for trial on the 20th of May, 1854, the defendant applied for a continuance, and in support of his application, presented an affidavit, setting forth that the case was originally set for May 25th, and that Amand Schneider, a material witness for the defence, had been sent away from the city, with instructions to return by that day; also that Robert B. Catherwood, the only witness who was fully acquainted with the facts constituting the defence, had left the city unexpectedly to the defendant, and that due diligence had been used to take his deposition, but that the same could not be procured in time for trial at the present term. The court overruled the application for a continuance, but laid the case over until May 25bh, the day for which it had originally been set. When the case was called for trial on May 25th, the defendant again moved for a continuance on account of the absence of R. B. Catherwood, and in support of his motion stated that he would prepare an affidavit setting forth the same facts in regard to said Catherwood contained in his affidavit made on the former application. The court refused to wait for the affidavit, or to grant a continuance. The defendant excepted, and after judgment against him, appealed to this court.

      B. A. Hill, for appellant.

      C. B. Lord, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The only point presented by this record involves the correctness of the ruling of the court below in regard to the continuance. The defendant moved to continue, and filed his affidavit. The absence of two witnesses, whom he deemed material to his defence, formed the ground of the application. The court continued it until the day appointed for the return of one of these witnesses. On that day, the application was renewed for the absence of one only. At this application, the defendant had not prepared his affidavit, but stated it would embrace the substance of the first affidavit filed on first application. The court refused to wait for a second affidavit, and overruled the motion to continue. We consider that the court is not bound to wait, when the case is culled, for the party then to make his affidavit, who has had an opportunity, as this case shows this defendant had, to have prepared his affidavit in time before the calling of the case. Here, the defendant knew his New Orleans witness had not come, and, in all probability, would not come in time for the trial. Why, then, wait until the case is Called for trial, and then ask for time to make an affidavit? It was his duty to be prepared beforehand, and he had an opportunity of making this preparation.

This court cannot say, from the record before us, that the lower court erred in refusing a continuance. This is a subject properly in the discretion of the lower court, and, unless we see it abused, we will not interfere.

Let the judgment be affirmed, the other judges concurring.


text:
    Hamiltons, Appellants, vs. Moody, Respondent.
    1. The supreme court will not interfere w.ith the discretion exercised hy the > inferior court in discharging a jury in a civil case after deliberation and failure to agree.
    2. The sickness of a witness residing in another state is no groundTor a continuance, no efforts having been made to take his deposition.
    3. Judgment for costs is properly entered against the security in the bond of.' a non-resident plaintiff who is nonsuited.

      Appeal from St. Louis Law Commissioner’s Court1
    Action for the specific recovery of personal property. The-record shows that a trial was had before a jury, who retired'to-consider of their verdict, and after an absence of about fifteen-, minutes, returned into- court and reported that they could not agree, and that there was no possibility of their agreeing, whereupon they were discharged by the court, and the cause continued. When the case was called for trial at the-next term, the plaintiffs moved for a continuance, and in support of their motion, filed an affidavit that two material witnesses, residing in Illinois, who had faithfully promised to-be present at. the trial, had been detained by sickness, which alone prevented’ their attendance. The motion for a continuance was overruled,, whereupon the plaintiffs submitted toi a nonsuit. Judgment" for the costs was entered against the plaintiff'and against hia-> security in the bond for costs, he being a non-resident..

      Spies & Weer, for appellants.

      Cline & Jamison, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

1. The questions in this record involve the proper exercise of discretion by the court below. It appears that at the first trial, the jury, after being out some short time, came into court and said that they were unable to agree upon a verdict; whereupon, the law commissioner discharged them and continued the case. The appellants, who were the plaintiffs below, complain of this act as improper. This court has no remedy for such an act. What can we do with it? It rests in the discretion of the court below. There is' where the power to do such acts resides, and there let it remain. We will not lend a willing ear to com-iplaints against courts, where the acts complained of are obviously within the mere discretion of the court... We suppose the law commissioner had good reason to think he was doing right. He •could tell from the jury before him whether there was any probability of their agreeing to a verdict or not. IE there was none, what harm was done in discharging the jury an hour later or an ¡hour sooner ?

2. At the next trial day, the plaintiffs moved for a continuance, and assigned as a reason therefor, the absence of two persons whose testimony, if it could be had, would be very material ¡to the plaintiffs. These persons resided in the state of Illinois. 'The plaintiffs had seen them and obtained their promise to attend the trial, but the sickness of these persons and of their families prevented them from coming to the trial at the appointed ¡time. The court refused to continue the cause on account of ¡the absence of these persons.

We cannot consider this refusal an improper exercise of discretion. The plaintiffs had made no efforts to procure the depositions of these persons. They ought to have known that these ¡foreign or non-resident witnesses were not liable to be subpoenaed and made to attend. They, therefore, should have ¡taken the depositions of these persons. But if they (the ¡plaintiffs) chose to take the promises and assurances of these persons that they would .attend, they must abide by it, and sickness is no cause for delaying tbe trial under such circumstances.

3. There is no error in the judgment against McCreery for costs. He was security in the bond for costs of suit, and such security, when he enters into bond for costs, in order to enable a non-resident to prosecute his suit, under our statute concerning costs, becomes, so far as respects the costs, a party to the record, and judgment may properly be rendered against him for the costs. (R. C. 1845, tit. Costs, art. 1, sec. 21, p. 244-5.) This section does not include alone the actions brought.to the use of any person. Its proper construction is, in all such actions, as well as in all where there is security for costs, or where the attorney shall be liable for the same, the judgment for costs shall be rendered against the person for whose use the action is brought, the security or attorney, &c.

The judgment, then, is in all things affirmed; the other judges concurring.


text:
    Noonan, Respondent, vs. The Hartford Fire Insurance Company, Appellant.
    1. A condition in a-fire policy that the insured shall, after a loss, procure the certificate of the nearest magistrate or notary public as to its fairness, is a condition precedent to a recovery, and mu§t he strictly complied with, unless there is either a waiver or an estoppel. A certificate from any other than the nearest oflicer qualified to act is certainly not a compliance, when the nearest not only does not refuse to act at all in the matter, but actually gives a certificate diiferent from that required.
    2. The fact that the company, after receiving a certificate which is not in compliance with the condition in tt.e policy, enters upon an investigation as to the extent of the loss, without immediately objecting to the certificate, and offers to pay a certain amount, is not, as a matter of law, a waiver of their right to demand a strict compliance with the condition, when their proposition is declined.

      Appeal from St., Louis Court of Common Pleas.

    This was an action up'on a fire policy for $4400, dated November 3, 1852, upon the stock and fixtures in a queensware store on Main street, in the city of St. Louis, destroyed by fire on the 7th of February, 1853.
    Among other conditions in the policy, was one which is set out in the opinion of the court. It was provided that, in case of loss, the company should not be liable for any greater amount than the proportion which the sum insured by it bore to the whole amount of insurance.
    The petition, after setting forth the terms of the policy and the loss, contained a specific averment of a compliance with the condition as to notice and preliminary proofs of loss, and with the condition above referred to, by procuring the certificate of the nearest magistrate, and a general averment of a compliance with all the other conditions in the policy. The plaintiff’s loss by the fire was stated in the petition to be $14,500.
    The defendant, in its answer, denied that the plaintiff had sustained a loss to the amount claimed, and averred that he had failed to procure from the notary public most contiguous to the place of the fire such a certificate as was required by the conditions of the policy.
    Commissioners were appointed to ascertain and report the amount of plaintiff’s loss by the fire, who reported his loss on stock at $12,809 77, and on fixtures at $363 24. The cause being afterwards submitted to a jury, upon the other issue, it appeared in evidence that on the next day after the fire, the plaintiff notified the defendant, agent thereof, in writing, and on the 2d of March afterwards, caused to be delivered to him a particular account of his loss, verified by his own affidavit, and accompanied by the certificates of Allen and Yogel, two justices of the peace, dated March 1st, 1853, which, as to their contents, were in compliance with the condition in the policy. There urns also delivered, at the same time, a certificate dated February 28, 1853, by William H. Pritchartt, a notary public, and secretary of the board of underwriters (whose office was snore contiguous to the place of the fire than that of either of the two justices,) setting forth that he was notin any way concerned in the loss, nor related to the plain tiff; that he had made due inquiry into the cause and origin oí the fire, and bad understood that it originated in Noonan’s store ; that, the general opinion was that it had been fired by an incendiary ; and that he had made inquiry as to the character and circumstances of said Noonan, but had received answers of such a character that he could not arrive at a conclusion as to the fairness or amount of the loss sustained.
    The plaintiff’s attorney testified that at the time of delivering to the defendant’s agent the account of loss, affidavit and certificates, he stated that they were the plaintiff’s preliminary proofs, (except the list and appraisement of goods saved, which would be furnished as soon as completed,) and requested the agent to examine them and see if any thing further would be required; and on the 20th of March, he delivered to the agent a list and appraisement of the goods saved, stating that this completed his preliminary proofs, and again requesting the. agent to examine them and see if any thing further would bo required. Some days afterwards, he again called on the agent, and was informed that the company would probably require the plaintiff to submit to an examination under oath, in compliance with a condition in the policy. On tho 31st of May, plaintiff was no ified in writing to submit to an examination by defendant’s attorneys on the next day. This examination was submitted to and lasted for several days. The plaintiff was required to produce his books and allow them to be examined by Mr. Clark, on behalf of the various companies interested. Mr. Clark remained in possession of the books several days, andón the 8th of June, informed tho plaintiff’ that be had got through, and was prepared to submit a proposition on behalf of the several companies. He stated that he made the plaintiff’s losa $5474 64, of which sum each of the companies would pay its • proper proportion. This proposition was declined. After-wards, other propositions for a compromise passed between the parties, the last of which was made by plaintiff in writing ©n the 14ih of June. On the 18th of June, the defendant’s agent replied, declining plaintiff’s offer, and stating that if his' former proposition was not accepted, the company would expect full compliance with the conditions of the policy, and require him to produce the certificate of the nearest notary public. On the 27th of June, this suit was commenced. The plaintiff’s attorney further testified that, during the negotiation until it was broken off, the whole difficulty was as to the amount of the loss.
    The following instructions, among others, were given by the Court of Common Pleas, to which the defendant excepted :

      “ 10. If the jury believe from the evidence that the plaintiff delivered to the agent of the defendant the notice of the fire read in evidence, on or about the next day after the fire, and also delivered to said agent the certificates of Allen, Yogel and Pritchartt, read in evidence, on or about March 2d, 1858, and that said certificates were genuine, and said Allen and Vo-gel were justices of the peace at the time of their date, and Pritchartt a notary public, and with the same also delivered to Said agent a statement of his loss, sworn to by plaintiff, as read in evidence; and afterwards, on or about the 20th day of March, also delivered to said agent an appraisement of the goods saved from the fire, made by persons appointed therefor by both parties, and then declared to said agent that that completed his preliminary proofs of his loss ; that plaintiff did said things as and for a compliance with the conditions of the policy in that behalf, and to the same as done, neither said agent or defendant made any objections on the ground of their not complying with such conditions, but after receiving the same, entered upon an examination of the amount of the loss and examined the books of the plaintiff therefor, and the plain-iff himself upon oath, and after this, did, on or about the 8th day of June, 1853, declare to plaintiff the amount of liabilities of defendant to plaintiff, arrived at from said evidences and examinations under said policy, by reason of the loss by said fire, and the same offered to pa.y to him, then they ought to find for the plaintiff, and for damages allow him so much of the sum of $12,809 77, as $4000 bears to $14,000, (the whole amount of insurance,) with interest from sixty days after the time they should find that plaintiff delivered to defendant said preliminary proofs and certificates, to the present time.’-’

      “ 11. If no objection to the certificates of Pritchartt, Allen and Yogel was made by the defendant until after the offer by the defendant to pay, as stated in the foregoing instruction No. 10, and until after the plaintiff refused to accept the said sum in full payment of defendant’s liability to him under said policy; and until after said refusal, defendant never objected to paying the plaintiff the sum claimed, on any other ground than that the amount of his loss was less than claimed by him in his preliminary proofs, then the defendant waived the condition requiring the certificate of the nearest notary or magistrate, and the notice dated June 18th, even if given by the defendant, does not bar the plaintiff’s right of recovery.”
    There was a verdict for the plaintiff for $4257 84, upon which there was a judgment, from which the defendant appealed.

      B. A. Hill, for appellant.
    1. The 10th instruction given is erroneous, for the reason that the facts stated in said instruction do not authorize the court to declare, as a question of law, that the defendant waived the certificate of the notary public most contiguous to the place- of fire. The question of Waiver is one of. fact and intention for the jury upon all the circumstances of the case. (Phillips v. The Protection Insurance Company, 14 Mo. Rep. 234. Iiyle v. The St. Louis Insurance-Company, 11’Mo. Rép. 291. Angelí on Life and Fire Insurance, p. 260, § 283. Edwards v. Baltimore Fire Insurance Company, 3 Gill (Md.) Rep. 176. Klein v. Franklin, Insurance Co., 1 Harr. (Penn.) Rep. 247.) The 10th instruction does not embody all the fuels to be passed upon by the jury, in order to find a waiver. The important question as to waiver is, whether the defendant rested its denial of liability on other grounds, and made no objection to any deficiency in the preliminary proofs. (Ang. on Life and Fire Insurance, § 244, p. 265. 6 Harr. & J'ohns. (Md.) Rep. 408.) The letter of the 18th of June, 1853, was an important fact to be considered by the jury. (10 Pet. 507. 9 How. 390.) 2. The nearest officer was the only one whose certificate would answer the condition of the policy. (1 Green. 110. 1 Shepley, 265. 2 H. Black. 577. 1 H. Black. 254. 2 Pet. 25. 7 Conn. Rep. 462. 13 Maine, 265. 1 Tenn. Rep. 12. 1 Rail’s Abr. 415. 1 Sand. 216. Sayer, 185. 5 Yin. Abr. 207. 1 Tenn. 642. 3 Mass. 443. 14 Mass. 453. 6 Term. Rep. 710. 2 McMullan, 237.) Pritchartt’s certificate is not, and does not purport to be a compliance with the condition of the policy.

      Krum & Harding, for respondent.
    1. The law as to waiver of preliminary proofs was correctly stated. (2 Phill.' on Ins. 485, 493-4. 6 Cow. Rep. 404. 2 Wend. 64. 6 Harr. & Johns. 408. 2 Wash. 61. 1 J. R. 219. 9 J. R. 192. 20 Pick. 389. 3 Sand. 26. 3 Cush. 257. 3 Gill, 276. 3 Conn. 123. 2 ib. 53. 25 Wend. 374. 14 Mo. 220.) 2. The condition of the policy requires the production-of the certificate of the nearest magistrate or notary public. This condition is to be taken most strongly against the underwriter. The certificate of the nearest magistrate was produced, and this answers the condition. See Phillips v. The Protection Insurance Company, 14 .Mo. Rep.
   Leonard, Judge,

delivered the opinion of the court.

It was a condition in this policy that the insured, immediately after the happening of a loss, should give notice of it, and as soon thereafter as possible deliver in a particular account of the loss, verified by the party’s affidavit, and “ procure a certificate under the hand of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss, as creditor or otherwise, or related to the insured, that he is acquainted with the character and circumstances of the insured, and has made diligent inquiry into the facts set forth in the statement; and knows or verily believes that the party really and by misfortune, and without fraud or evil practico, has sustained, by such fire, loss to the amount therein mentioned.” This stipulation, for the production of a certificate of this character, seems to be an ancient and very common provision in a fire policy, not intended to conclude the underwriters as to the facts required to be certified to, the loss, and the amount of it, but stipulated for, on their part, as an additional protection against the fraud of the insured. As it is a provision, however, for their own security, .they may, of course, waive it, if they think proper, or their conduct towards the insured, in relation to it, may be such that it would be inequitable for them afterwards to set up the want of it as a ground of defence to an action, and in such cases, they are estopped, as a sheer matter of law, from doing so, upon the principle common to all equitable estoppels, that the words or acts of a party, which cannot afterwards be contradicted, without fraud and injury to those whose conduct has been influenced thereby, shall conclude the party, without any reference-to the real truth of the matter. In the first instance., the question of waiver is one for the jury, and in the other, a question of law for the court.

In the present case, the court, in effect, directed the jury that the facts suggested in the tenth instruction amounted, in law, to a waiver of the required certificate, (for it seems to have been assumed that notary Pritchartt’s certificate was not in conformity with the condition, and that both of the justices, being more remote from the fire, were not authorized to act,) and whether they do so or not, is the question presented for our judgment.

These facts are, substantially, that the insured gave due notice of the loss, and within a reasonable time afterwards, a particular account of it, verified by his affidavit, accompanied by the certificates of Pritchartt, Allen and Vogel, read in evidence, and abatement and appraisement of the goods saved from the fire, declaring, at the time, that this completed his preliminary proof, and was intended as a compliance with the conditions of the policy ; that the defendant made no objection to the proof upon the score of its non-conformity with the condition, but went into an investigation of the amount of the loss, and after examining the defendant-and his books-, on the 8th of June, stated to the plaintiff the amount of the loss, as thus ascertained, and offered to pay that sum on account of it. The certificate of Pritchartt, the nearest officer, as read in evidence, was given on the 28th of February, immediately after the fire, and was to the effect that the fire occurred in the plaintiff’s house, and was the work of an incendiary, but that the answer he received, as to the character and circumstances of the plaintiff, were such, that he could not arrive at a conclusion as to the fairness or amount of the loss ; and the other two certificates, afterwards given by the justices of the peace, were in conformity with the stipulation.

The plaintiff refused to receive the amount offered on the 8th of Juno, and afterwards, other communications passed between the parties in writing, in relation to the amount to be paid, which were finally closed by a letter from the defendant, of the 18th June, declining to make any further offer, and stating that, if the one already made was not accepted, they should expect a strict compliance with the conditions of the policy, and require the production of a' certificate from the nearest notary. This was the first time any objection was taken to the certificates. Here, the correspondence between the parties closed, and this suit was afterwards commenced.

The case of Worsly v. Wood, decided in the King’s Bench, (in 6 Term Rep. 710,) was a suit by the insured upon a fire policy, containing a stipulation to the effect that the insured, upon the happening of a loss, should procure “ a certificate of the minister, churchwardens and some reputable householders of the parish, importing that they knew the character, &c., of the insured, and believed that he really sustained the loss, and without fraud.”

The controversy was as to the extent of the loss, and the minister and churchwardens refusing to certify to the full amount claimed by the insured, he procured the certificates of other reputable householders in the parish, and the question was, whether the procuring of a certificate was a condition precedent to the plaintiff’s recovery, and if it were, whether the certificates of the other persons were a sufficient compliance with it, and the court decided, after a divided opinion in the Common Pleas, in the same case, (2 Hen. Black. 574,) that it was a condition precedent, and that the certificates .of other persons was not a compliance with it. This was the first decision upon the question, and it has been generally followed in the United States. (Oldman v. Bewicke, 2 Hen. Black. 277, note a. Angel on Insurance, sec. 226 and cases.)

If the nearest officer were disqualified from acting, by interest or otherwise, or refused to act at all in the matter, the next nearest officer, it would seem, might be considered as embraced within the stipulation; but when the person indicated is qualified, and does act, and his certificate is almost the reverse of what is required, it would seem to be beyond our reach to help the insured, either by disregarding the stipulation or substituting a different one in its stead.

Whether the defendant had waived the production of a proper certificate, was not left to the jury as a question of fact, but was thrown entirely out of the case, and the jury were directed that, if they found the facts detailed in the tenth instruction, they must find for the plaintiff, without any reference to the intention of the defendant or the other circumstances of the transaction ; or, in other words, that these facts estopped the defendant from setting up the want of a proper certificate as a ground of defence. We cannot concur in this direction. We are not required, by the authority of any adjudicated case that we are aware of, which is obligatory upon us, to declare that such is the legal result of these facts, and we do not think they ought to have that effect. The underwriters had a right to protect themselves against fraud by this provision, which they put into the contract for that- purpose, and their engagement to the insured did not subject them to any obligation to pay him until he procured from the person indicated in the policy, the stipulated certificate. They might, it is true, have waived the proof, absolutely or temporarily; but we cannot hold that their failure to make the objection at the beginning, and going into an examination of the extent of the loss-, and offering to pay the amount thus ascertained, was an absolute waiver of the production of a proper certificate, when they called for it, not only before the suit was brought, but during the treaty for the adjustment, or at least at the close of it. They might, it is true, have declined entering upon any investigation, as to the loss, until the stipulated certificate was produced, and their going, into the inquiry, without making any objection to the certificates presented, especially when they were informed it was all the preliminary proof the .party^proposed giving, would afford a natural inference that they waived, temporarily at least, the production of any other certificate, and were willing to pay, if otherwise satisfied of the fairness of the loss, and the-extent of it. But we do not think this conduct, on the part of the underwriters, ought to conclude them, as a matter of law, unless the insured were thereby deprived of an opportunity of procuring the necessary certificate. The natural inference to be derived from the conduct would seem to be, that they waived, for the present, any objection to the certificate; and if they had not before or at the close of the treaty for the adjustment, made the objection, but had waited till the suit was brought, they would, probably, have been es-topped from relying upon it, and this, it is believed, is as far as the cases have yet gone upon this subject.

Whether the circumstances of the ease will turn out to be such as to justify the inference that the defendants did, in fact, waive the production of any other certificate, is a question for a jury, and not for us. All we determine is, that the facts indicated in the instruction do not, under the circumstances of the case, conclude the defendants, as a matter of law, leaving the question of waiver to be determined by a jury as a matter of fact, upon proper evidence to be submitted to them.

The result is, the judgment must be reversed, and the cause remanded; and the other judges concurring, it is so ordered.


author: Scott, Judge,

text:
    Hart, Plaintiff in Error, vs. The Missouri State Mutual Fire and Marine Insurance Co., Defendant in Error.
    1. Where a corporation has implied power to receive notes in the regular course of its business, although expressly prohibited from exercising any hanlcing privileges, a note assigned to the corporation will he presumed to have heen taken in accordance with the charter, until the contrary is made to appear by the party setting up the illegality of the transaction as a de-fence.
    2. Where a set-off exceeding plaintiff's demand is not replied to, judgment is correctly rendered for the defendant upon his motion, without waiting for the trial of other issues made hy the pleadings.

      Error to St. Louis Court of Common Pleas.

    This action was brought by Hart, as assignee of Hesse, to recover a balance claimed to be due on account of a loss under a policy of insurance.
    The defendant answered, putting in issue the assignment from Hesse to the plaintiff, and pleading as a set- off a note executed by Hesse and his partner to Doan, King & Co., and assigned to the defendant before the date of the alleged assignment from Hesse to the plaintiff. The note was for an amount exceeding the balance claimed by plaintiff.
    The plaintiff moved to strike out the set-off, but his motion was overruled, and failing to reply, judgment was rendered for the defendant.

      H. N. Hart, in proper person.
    1. A motion to strike out the offset should have been sustained. The defendant has no power to buy and sell notes, but, on the contrary, is expressly prohibited from so doing by the 19th section of its charter. (Sess. Acts of 1849, p, 379.) 2. The court below erred in rendering final judgment before the issues were tried. IE the issue upon the assignment had been found against the plaintiff, there could have been no judgment for the defendant upon his set- off'.

      Glover & Richardson, for defendant in error.
    1. The motion to strike out the defendant’s set-off was properly overruled, because the court could not see that the endorsement of the note in question to the company necessarily implied any violation of its charter. 2. The plaintiff refusing to put in any replication to the set-off, and the set-off exceeding in amount the plaintiff’s demand, the proper judgment was that he take nothing by his action.
   Scott, Judge,

delivered the opinion of the court.

It is no defence' to an action brought by a corporation that it has violated its charter, whereby it has become subject to forfeiture. (12 Mo. Rep. 131.) This principle,'however, it is conceived, does not prevent the making of the defence that the contract of a corporation is unauthorized by its charter. (Ang. 233.) In this respect, a corporation and an individual stand upon very different' grounds. The latter may make all contracts not pi’ohibited by law, while the former, having been created for a specific purpose, not only can make no contract forbidden by its charter, which is, as it were, the law of its nature ; but, in general, can make no contract which is not necessary, either directly or incidentally, to enable it to answer that purpose. (Angel on Corporations, 238.)

In general, an express authority is not indispensable to confer upon a corporation the right to borrow money, to deal on credit, or become drawer, endorser nr acceptor of a bill of exchange, or to become a party to any other negotiable paper. (Angel, 234.) In deciding whether a corporation can make a particular contract, we are to consider, in the first place, whether its charter, or some statute binding upon it, forbids or permits it to make such a contract, and if the charter and statutory law are silent on the subject, in the second place, whether a power to make such a contract may not be implied, on the part of the corporation, as directly or incidentally necessary, to enable it to fulfil the purpose of its existence; or, whether the contract is entirely foreign to that purpose. (Angel, 234.)

This corporation (the defendant) might have received notes in the course of its proper business, although it was expressly restrained from exercising any banking privileges whatever. Under such circumstances, evidence would be admissible against the corporation to impeach the notes, by showing that they were issued for another purpose, or received in the course of business improper or forbidden to it.

As the defendant (the corporation) might have received the note, the subject of the set-off in this suit, in the regular course of its business, and as a violation of law is not to be presumed, it was the duty of the plaintiff to set up in his reply the facts on which he relied to show the illegality of the conduct of the defendant, in receiving the note used as a set- off. Having failed to do this, as the set-off exceeded his demand, and was unanswered, the court correctly entered judgment for the defendant.

The other judges concurring, the judgment will be affirmed.


text:
    Hesse, Plaintiff in Error, vs. The Missouri State Mutual Fire and Marine Insurance Co., Defendant in Error.
    1. The 33d section of the 4th article of the act concerning practice at law (R. C. 1845) prohibiting a plaintiff from taking a nonsuit after the cause lias been submitted to a jury, or to the court sitting as jury, is still applicable, notwithstanding the practice act of 1849, in all cases which would have been actions at law under the old system, and so the proper subjects of a jury trial; but in what would formerly have been suits in equity, the plaintiff may dismiss his petition at any time before a final decree. The 6th and 7th sections of the 13th article of the act of 1849 furnish the rule of distinction.

      Error to St. Louis Circuit Court.

    Action upon a policy of fire insurance, to recover a balance claimed to be due on account of a loss. The cause was tried by the court, a jury being waived. The evidence being heard, the court adjourned until the next day, taking the case under advisement. On the next day, the court orally stated the facts found and the conclusions of law thereon, and, as was the practice, directed the defendant’s counsel to reduce the finding to writing, to be signed by the judge. At this point, the plaintiff asked for leave to take a nonsuit, which was refused, and after a judgment for the defendant, he sued out this writ of error. The issues in the cause will sufficiently appear from the finding of the Circuit Court, which was substantially as follows :
    In November, 1850, the plaintiff’s stock of goods was destroyed by fire, being at the time covered by the defendant’s policy of insurance for the sum of $2000. After the fire, a dispute arose between the plaintiff and defendant as to the amount of the loss, and it was finally compromised and adjusted at $1500, of which $912 was paid by the defendant, leaving a balance of $588. On the 21st of May, 1851, plaintiff assigned this balance to H. N. Hart, who, in August, 1851, brought suit against the defendant for the same. In that suit, the defendant pleaded as an off-set anote executed by the plaintiff and his partner to Doan, King & Co., in 1846, which was assigned to the defendant on the 6th of May, 1851, and upon which the amount due exceeded the amount sought to be recovered by Hart, as the assignee of the plaintiff. This off-set was allowed to the extent of the plaintiff’s claim, and a judgment rendered for the defendant.
    Upon the above facts, the Circuit Court declared, as conclusions of law, 1st, that the judgment in the suit of Hart against the defendant was a bar to the present suit; 2d, that the defendant had no capacity, under its charter, to take the note executed to Doan, King & Co. by assignment, and so was not entitled to the judgment claimed in the answer in the present suit, for the balance due on said note over and above the amount for which it had been set- off in the former suit.

      Hart & Jecko, for plaintiff in error.
    1. The court below improperly admitted the record of the case of Hart against the defendant to be read in evidence. In that suit, the defendant took issue upon the allegation of assignment, and that issue' was never tried; and yet the Circuit Court held that the judgment there was a bar to the present suit, although it is further found that the off-set upon which that judgment was rendered was illegal. 2.' The Circuit Court erred in refusing the plaintiff leave to take a nonsuit when'it was asked. When'the trial is by jury, the plaintiff is always allowed to take' a nonsuit' after hearing the instructions ; and when the' trial is without a jury, in which' case the facts are first found, and then the law declared, it is a harsh practice to deny him the same right.

      Glover & Richardson, for defendant in error.
    1. The assignment to Hart prior to the institution of this suit, was a good defence. (Prac. Act of 1849, art. 8, § 1.) 2. The judgment in the case of Hart against this defendant was'a bar. 8. A plaintiff has no right to take á nonsuit' after the issues, are found against him. (R. C. 1845, p. 821, § 33.)
   Scott, Judge,

delivered the opinion of the court.

The question involved in this case is of some importance.. It is, at what time, under the present practice act, a' party may dismiss his petition when the trial has been submitted to the court. The practice act now in force is silfent'as to non-suits. Under the New York code, similar in many respects to our own, they seem to have no place. Law and equity being; blended, the term nonsuit would not perhaps have been appropriately applied to all dismissals of petitions indiscriminately.. It seems to be against the spirit of the'present system'of procedure to keep up a distinction between law and equity suits,.' and to hold that a suit which would' formerly have been on the-equity side of the court may be dismissed at any time upon'' 'the-payment of costs, whilst one that would have been on the common law side of the court, must be subject to the statutory regulations now in force in relation to nonsuits.

The 33d section of the 4th article of the act concerning practice at law, (R. C. 1846,) forbids any plaintiff from suffering a nonsuit, after the cause, upon a bearing of the parties, shall have been finally submitted to a jury, or to the court sitting to try the issue, for their decision. By blending the administration of law and equity, it is obvious that, if this provision is made to extend to all trials by the court, a class of cases will be included in its terms which was never contemplated, as the provision was only intended for trials at law under the old system of practice. All the elementary writeis on equity law tell us that, in chancery, a complainant may, at any time before a final decree, upon the payment of costs, dismiss his bill. (Adams on Equity, 664.) This rule has lately been modified in England by an order in chancery. At law, under the old system, when the matter to be tried was, by the pleadings narrowed down to a single issue, there was a propriety in refusing a plaintiff the liberty of taking a nonsuit after submitting his casebut, as matters of chancery jurisdiction were usually complicated, in which many facts were involved, the law, in its wisdom, permitted a plaintiff to dismiss his bill before a final decree, and to renew his suit, when by oversight or any other cause, he had failed to present it in the way it should have been.

In this state of uncertainty, we have, thought that the 6th ¡and 7th sections of the 18th article of the present act regulating practice, which seem to draw a sort of random line between the former actions at law and suits in equity, should fur,nish a rule by which to distinguish the cases in which the provisions .of the statute, relative to nonsuits, should apply, and ¡those in which the rule in equity, as above stated, should ob-tain. The first of the sections referred to, describes the actions in which the trial of the issues shall be by the jury, and ¡the .next section that class of litigation, onee known as chancery suits., which, from their intricacy and the number of circumstances involved, it would be unsafe to submit for trial to .a jury, and therefore, are still left, as formerly, to be tried by :the.court, and being so left, the right of the plaintiff to dismiss bis petition, and tbe power of the court to dismiss a petition without prejudice, would remain as they stood under the old system in equity proceedings.

As this was a ease properly triable by a jury, the submission to the court did not wary the rule applicable to nonsuits. The statute prescribes that, after a cause shall have been finally submitted to a court for its decision, the plaintiff shall not be permitted to take a nonsuit. This eause was finally submitted to the court, and its decision made known before the party offered to take a nonsuit, and therefore it was properly refused.

The court having found the fact of the assignment to Hart, the record of the Court of Common Pleas was conclusive between the parties.

The finding of the court, in relation to the illegality of the set-off set up by the defendant, was entirely redundant and unnecessary, as a previous part of the finding showed that the matter was concluded by a former judgment.

Judge Ryland concurring, the judgment will be affirmed.


text:
    Hutchinson, Respondent, vs. The Western Insurance Company, Appellant.
    1. A condition annexed to a policy o£ insurance that the assured shall cause any previous or subsequent insurance to be endorsed on his policy, is a condition precedent, and is not satisfied by verbal notice to the insurer of such other insurance.

      Appeal from St. Louis Court of Common Pleas.

    This was an action upon a policy of fire insurance for $3000, dated October 29, 1851, upon a mill in Illinoistown. The 6th condition annexed to the policy is set out in the opinion of the court. The 11th condition was as follows : “ The policy may always he transferred, provided such transfer be endorsed upon the policy and brought to the office for approval within thirty days from the date thereof ; otherwise, the premium shall be considered as sunk for the benefit of the assurers.”
    At the date of this policy, E. C. Hutchinson, the plaintiff, was the owner of the mill. There was a previous insurance for $2500 in the City Insurance Company of Cincinnati, which was endorsed on defendant’s policy. On the 80th of December, 1851, the policy in the City Insurance Company of Cincinnati having expired, the plaintiff effected an insurance for $2000 upon the same property in the Commercial Insurance' Company of Charleston for one year. The defendant’s agent,! as a witness testified, was verbally informed of this subsequent* insurance, but was never requested to endorse it on the policy,| and it never was endorsed. On the 25th of February, 1852, Hutchinson sold the mill to H. W. Watkins for the sum of $5000, of which $1000 was to be paid in cash. For the remaining $4000, Watkins executed a deed of trust upon the property. The deed of trust contained a clause to the effect that the property should be kept insured in the name of Hutchinson, at the expense of Watkins, and that in case of loss, the insurance should be received by Hutchinson, “ and applied and credited by him on account of said indebtedness, and the balance, if any, paid to Watkins.”
    The defendant’s agent was, according to the testimony of a witness, informed of the sale to Watkins, and requested to endorse it on the policy, but stated that it was unnecessary to do so, as the plaintiff retained an interest. It did not appear, however, that he was informed of the stipulation in the deed of trust as to the application of the insurance money.
    On the 6th of June, 1852, and before defendant’s policy expired, the mill was destroyed by fire. Notice and proofs of loss were served on the defendant, and a witness testified that the only reason assigned for a refusal to pay, was the sale to Watkins.
    The Court of Common Pleas instructed the jury to the effect that notice, to the defendant of the subsequent insurance before a loss was a sufficient compliance with the 6th condition of tbe policy, and refused an instruction that it must have been endorsed on the policy. Other instructions were given and refused, which it is not thought necessary to notice.
    After verdict and judgment for plaintiff, the defendant appealed.

      Wickham & Snead, for appellant.
    I. Parol evidence is inadmissible to prove verbal notice of subsequent insurance, the conditions of insurance requiring it to be endorsed on the policy in writing. (1 Phill. on Ins. sec. 8, § 67, 68, p. 51. 18 Mass. 99. 2 Denio, 79 and cases cited. 1 Mood, and Walk. 367, 870. 7 Cushing, 179-80. 17 Mo. Rep. 248. 5 Pick. 34. 16 Peters, 512. 14 Mass. 152.) II. A condition in a fire policy not complied with defeats the policy; and even though verbal notice of the subsequent insurance was given to appellant, still, unless such subsequent insurance was endorsed on the policy, there is no such substantial compliance with the 6th condition of the policy as will entitle the respondent to recover. (6 Wend. 488, 494. 16 Peters, 510-12. 5 Ohio Rep. 466-7. 14 Mo. Rep. 3, 8. 13 Ohio, 64. 4 Howard, 222-3. 2 Cranch, 166-7-8. 2 Johns. Rep. 109, 114. 16 Ohio, 165. 19 Ohio, 149, 176-7.) HI. The agreement in the deed of trust, through which the plaintiff claimed his present interest in the property insured, to the effect that he should credit on the notes of Watkins whatever, in case of loss, he might recover from the insurance companies, would, if binding on him, discharge the defendant from liability, whether Watkins caused the property to be insured in plaintiff’s name or not, because, 1st, it would deprive the company of its equitable right of subrogation. (2 Phill. on Ins. (new ed.) 399, 400. 16 Wend. 397. 8 Johns. 246. 9 East, 72. 4 Edward’s Ch. Rep. 95. 3 Rob. (La.) 427.) 2d. It would operate as an equitable assignment of the policy, and so not having been approved by the company and endorsed, as is stipulated in the 11th condition, would avoid the policy. (1 Phill. on Ins. p. 64, sec. X, § 90. 24 Pick. 204. 1 Curtis, 196.) Moreover, the respondent, not being the real party in interest, could not bring this action in bis own name under our statute. 3d. It would be against public policy, by making it immaterial to respondent whether the property was burned or not, and by putting it in the power of Watkins to reap a benefit from such destruction ; for, besides having his debt paid to respondent by this insurance, he may insure and recover the full value of the property in his own name as owner. . (9 Wend. 408.)

      T. Polk and F. A. Dick, for respondent.
    I. Parol evidence was admissible to prove actual notice to the defendant of the insurance in the Commercial Insurance Company. 1. By the words of the 6th condition of the policy, notice is sufficient to prevent an avoidance of the policy. 2. The notice is not required to be in writing, and so parol notice is good. (5 Hill, (N. Y.) 101.) 3. Any doubt as to the meaning of the 6th condition should be resolved against the company. (1 Sumner, 440.) 4. The action of the company, in placing their refusal to pay on other grounds, shows their construction of the 6th condition. II. The object of the condition, (which is to prevent the assured from getting too large an insurance,) was fully answered by the endorsement on the policy of $2500 of insurance on the same property in the Cincinnati City Insurance Company. This policy expired before the fire, and the subsequent insurance of $2000 was intended to replace it. The amount of insurance was diminished, instead of being increased. III. It is not necessary to inquire into the effect of the agreement between Watkins and the plaintiff, as there was no evidence that it was ever carried into effect.
   Leonard, Judge,

delivered the opinion of the court.

The sixth condition annexed to the present policy is : “ Persons insuring property at this office must give notice of any other insurance (either previous or subsequent) made on their behalf on the same, and cause such other insurance to be endorsed on their policies; in which cases, such office shall be liable to the payment only of a rateable proportion of any loss or damage which may be sustained; and, unless such notice is given, the insured will not be entitled to recover in case of loss and the principal question upon the trial was, whether there had been a compliance with it, and if not, what was the effect of the non- compliance.

A warranty, in the law of insurance, is a written stipulation in the policy, applicable either to matters present or future, and, in the former case, is called an affirmative, and in the latter, a promissory warranty; and the policy being signed by the underwriters only, these warranties are made effectual by treating them as conditions precedent, upon the truth or fulfillment of which the entire contract depends. (Angel on Insurance, secs. 140,142,145 and 147. Arnold on Insurance, 58. Ellis on Insurance, 28. Borradaille v. Hunter, 5 M. & Granger, 639. Newcastle Fire Insurance Co. v. McMorran, 3 Dow, 262.) The present stipulation, it seems, is now a new invention, but is taken from the conditions annexed to the fire policies issued by the London companies, (Ang. on Ins., Appendix, 7,) and the object of it is very obvious, and the provision itself reasonable enough.

Underwriters rely more upon the interest than the morals of the insured for protection against the carelessness of owners in the preservation of the insured property, and therefore always leave a sufficient amount uncovered by the policy to make it the interest of the insured to take proper care of it. To enable them to do this, it is necessary, of course, that they should be informed whether the property, upon which they are about to take the risk, is covered by any existing policy, and if so, to what extent; and that their risk may not afterwards be increased without their knowledge or consent, by the subsequent act of the insured, in covering his remaining interest, either wholly or partially, with additional policies, from other underwriters, this stipulation, looking not only to the present, but to the future condition of the property, in reference to other insurance upon it, and the consequent increased risk on the part of the underwriters, is inserted as a condition in the policy.

We may remark, too, an additional reason for this provision. The contract of fire insurance being a mere contract of indemnity against actual damage, the insured can only recover to the extent of his loss, no matter what amount maybe covered, or by how many different policies. But, then, he has his election upon which policy he will exact this indemnity, leaving it to the parties themselves afterwards to Gompel contribution from those who ought to bear with them the common loss, and to compel the insured to go to the other underwriters for the residue. Keeping these things in view, there is not much difficulty in settling the material questions discussed in this case. It is true, the main purpose of the provision, might be effected by a mere verbal notice of other insurance, without any endorsement of it upon the policy ; but the parties have seen fit to agree that all other insurance upon the property shall be so ^endorsed, in order manifestly to have certain and authentic evidence of this material fact, instead of leaving the matter to the uncertainty of mere verbal testimony. The endorsement changes the effect of the contract, as it stands on the face of the instrument, in reference to the amount the insured may claim of the underwriters, and perhaps it is also intended to furnish evidence against the underwriters of their consent to a continuance of their liability, notwithstanding the increased risk thrown upon them by the subsequent insurance. An intimation to this effect is given in the opinion of the court, in the case of Carpenters. The Prov. Ins. Co., 4 How. 222, which was a suit in equity, to compel the underwriters to make an endorsement upon a policy of a subsequent insurance, of which they had received verbal notice. The case went oft' upon a defect of proof as to the fact of notice ; but it is intimated by the judge who delivered the opinion, that, perhaps, it would have been a good defence to the bill, that the parties had declined continuing their liability, as underwriters, under the increased risk, and, in the exercise of their right to do so, had refused to make the necessary endorsement upon the policy, required as the evidence of the fact.

If other insurance exists at the time, and is not endorsed, although communicated or known to the underwriters, it is not enough. The condition is not complied with, and no contract exists. (Carpenter v. The Prov. Ins. Co., 16 Pet. 512. Barrett et al., v. Union Mutual Fire Ins. Co., 7 Cush. 178. 1 Phillips on Ins. 477.)

There can be no distinction in this particular between a present and a subsequent insurance, and the present condition extends to both existing and future policies, and if there is a failure to endorse either, the stipulation is not complied with. But it seems to have been thought upon this trial, that the endorsement was not a condition precedent to the plaintiff’s right of recovery, and that a failure in this matter did not defeat a recovery, upon the ground, we suppose, that the express provision to that effect was confined to tho want of notice. It seems, however, that any stipulation inserted in the policy is, according to the law of insurance, to be considered as a warranty, and so is a condition precedent, without any express contract for that purpose ; and, indeed, in this case, we think the last clause of this condition ought to be construed as referring to a notice perfected by an endorsement, rather than as limiting the effect of the provision in annulling the contract to the mere failure to give notice. The endorsement must, of course, be made by authority of the party who is to be bound by it, and if it is to affect the rights and liabilities of both parties, it must be made with the consent of both. No question, however, of this kind arises here, as it is not pretended that any endorsement was ever made, or proposed to be made.

It is not necessary to go into a particular examination of the instructions given and refused. It is enough for the reversal of the judgment that the ease was tried and determined upon the assumption that a verbal notice, without an endorsement, was sufficient to enable the plaintiff to recover, while we think otherwise. The judgment must therefore be reversed, and the cause remanded ; which is ordered accordingly, the other judges concurring.


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    Lyon & Wife, Appellants, vs. Page & others, Respondents.
    1. In a suit under the practice act of 1849, hy the grantee in a deed against the grantor, to correct a mistake in the description of the property conveyed, parties in possession cannot he joined as defendants, unless they claim under the grantor with notice of the mistake or as volunteer purchasers.
    2. A judgment hy default may he taken against one defendant, after a demurrer has keen sustained as to others.

      Appeal from, St. Louis Circuit Court.

    This was a suit, the object of which was to correct a mistake in a deed in the description of the land conveyed. The defendants were, the grantor in the deed, the several parties in possession of different portions of the land, and a party having an interest with the plaintiffs under the deed. The plaintiffs prayed judgment for the title and for the possession. A demurrer to the petition, filed by all the defendants except Paschal Tourie, the grantor, was sustained by the Circuit Court. The facts stated in the petition appear in the opinion of Judge Ryland. After the demurrer had been sustained, a judgment by default was taken against Tourie for want of a plea. This judgment was afterwards set aside, and the petition dismissed, and the plaintiffs appealed.
    P. C. Morehead, for appellants.

      J. E. Shepley, for respondents.
   Ryland, Judge,

delivered the opinion of the court.

The questions in this case involve the propriety of the judgment of the court below in sustaining the demurrer of the defendants, all except Paschal Tourie, to the petitioners’ complaint, and also the setting aside of the judgment by default against Tourie, and the dismissing of the petition.

The petition does not set forth properly facts sufficient to maintain an action against the defendants who demurred to the same. The petition seeks to correct an error or mistake in the description of tbe tract of land mentioned in the deed from Paschal Tourie to Robert N. Moore and Alexander Moore. It states that one Charles Simoneau, who died several years ago in St. Louis county, intestate, owned and cultivated a lot or parcel of land containing forty arpens, described as one arpent in front by a depth of forty arpens, situated in the Grand Prairie common fields, adjacent to and belonging to the then village of St. Louis, being a common field lot, bounded on the north by a common field lot of one Francis Marechell, on the south by a common field lot of one Francis Moreau, and was owned and cultivated by said Charles Simoneau, at and prior to the 20th day of December, 1803, and was by the act of 1812 confirmed to said Charles Simoneau or his legal representatives ; that said Charles Simoneau died before said act was passed, leaving as his heirs his wife, Marie Simoneau, and his only child, Charles Simoneau, who became entitled to said tract of land, and were the confirmees thereof under said act of 1812 ; that said Charles Simoneau, jr., died without issue, leaving his mother, the said Marie, his sole heir ; and, previous to his death, conveyed to his mother said tract of land, by deed dated August 11th, 1806; that said Marie Simoneau conveyed the same land to Paschal Tourie, by deed dated July 20th, 1838. The petition also states that said Charles Simo-neau, sr., never owned any other lot or tract of land in said Grand Prairie common fields west of the east line of said common fields, than the lot here described ; that the said Paschal Tourie, who acquired the same as aforesaid, sold it to Robert N. and Alexander Moore, both now deceased, but erroneously conveyed by a wrong description by general warranty deed, marked as an exhibit to the petition, (C.) The petition states that the land conveyed was never the property of the said Simoneau or of the said Paschal Tourie, as acquired by them, but that the land in controversy was the land sold to the said Moores and intended to have been conveyed, which the said Tourie has since admitted. The petition avers that said plaintiffs are entitled to a conveyance from said Tourie for said land.

The petition then states that Alexander Moore died intestate, leaving as his heirs his mother, Elizabeth N. Moore, his brother, Robert N. Moore, his sister, Elizabeth Hull, and his niece, Julia N. Moore ; that the mother, Elizabeth N. Moore, died, devising her interest in said land to Robert N. Moore and Elizabeth Hull, wife of Joseph S. Hull; that Robert N. Moore died, devising all his interest in said land to his wife, Anna Maria, now the wife of the plaintiff; that Joseph S. Hull and wife conveyed their interest in said land to the plaintiff, James M. Lyon, by deed, whereby the plaintiffs are entitled to the whole of said tract of land, except one-eighth thereof, belonging to Julia N. Moore.

The petition then states that the defendants, Wash and wife, Clay Taylor and Edmond Taylor, are in possession, by themselves or their tenants, of part of said land on the west end ; that Peter Lindell is in possession of part next east of them, and defendants, Page and Yandeventer, are in possession of the remainder of said tract, and are unlawfully withholding from the plaintiffs said possession.

The defendants, the school commissioners, are pretending, unjustly, to claim a part on the east end thereof. The plaintiffs state that they have an equitable title to said described tract of land, and pray judgment that Paschal Tourie shall convey the same to plaintiffs by deed in fee simple, or such judgment as shall invest them with the legal title to the same ; and such other judgment against him as shall be proper under the circumstances. Against the other defendants they pray judgment for possession, damages, rents and profits, and general relief.

1. This petition, which I have stated substantially above, shows no cause of action against any of the parties who demurred thereto.

It does not appear by this petition that any of these defendants claim under Paschal Tourie, the maker and grantor in the deed, in which is the alleged erroneous description of the land. Even if these defendants should claim under Paschal Tourie, the petition fails to allege that they had notice of such mistake, or that they were mere volunteer purchasers. The judgment, then, of the lower court, upon the demurrer in favor of these defendants must be affirmed, and the plaintiffs having, after leave given, failed to amend their petition, the judgment dismissing the petition, as to them, is proper, and must also be affirmed.

2. But this court cannot perceive why the court below should suppose the judgment by default against Paschal Tourie was irregular, and should be set aside. The record shows personal service of the summons and petition in time, and it also shows the failure of the defendant, Tourie, to answer or demur. The judgment by default was regular, and the court should not have set the same aside and dismissed the petition, without any appearance or motion on the part of Tourie asking for such action.

The defendants, who demurred below, contend in this court that the judgment against Tourie was properly set aside, because it was had after the demurrer to the plaintiff’s petition had been sustained by the court below. There is nothing in this objection. The plaintiffs may well be entitled to relief against one defendant, and yet have no sufficient statement of facts in their petition to entitle them to relief against another defendant, or even an informal and defective statement may be considered sufficient, after default, to authorize the courts to afford the relief which might have been denied upon proper defence made.

In our opinion, then, the court below erred in setting aside the judgment by default taken in this case against Tourie, without his appearance, and showing cause therefor. That judgment is reversed, and the cause remanded for further proceedings against Paschal Tourie, if the plaintiffs see fit; and the judgment in favor of Page and the other defendants, who made de-fence below, is affirmed, the other judges concurring.


text:
    Waterman & Ryan, Respondents, vs. Frank & others, Appellants.
    1. A delivery bond given for property seized under execution does not take away the trial of the right of property when a claim is interposed, nor the power of the plaintiff, by giving a bond of indemnity, to compel the officer to sell, notwithstanding a verdict for the claimant.
    2. A delivery bond, although given by a party other than the defendant in the execution, and made payable to the officer instead of the plaintiff, is good as a common law bond, although, not being in conformity with the statute, it would not authorize the summary statutory proceedings.
    3. In a suit upon a forfeited delivery bond, given by the claimants of property seized under execution against another, the defendants cannot be permitted to show in mitigation of damages that the property belonged to them.
    4. Under the practice act of 1849, a bond with a collateral condition may be assigned, so as to enable the assignee to sue in his own name.

      Appeal from St. Louis Court of Common Pleas.

    This was an action upon a penal bond given by Charles Frank and John Valentine, as principals, and Philip Walter, as security, to E. G. Clark, a constable of St. Louis township, conditioned for the delivery, upon the return day of the writ, of certain property which had been seized under an execution issued by a justice of the peace in favor of Waterman & Byan against Benjamin Mendheim. Before the return day of the execution, the obligors in the bond interposed a claim to the property. The constable summoned a jury to try the right of property, and the trial resulted in a verdict for the claimants. The plaintiffs in the execution then executed to the constable a bond of indemnity under the statute, and required him to sell the property, notwithstanding the verdict of the jury. The property seized not being delivered according to the condition of the bond, and no other property being found upon which to levy the execution, the same was returned unsatisfied. The constable then assigned the delivery bond to the plaintiffs in the execution, who bring this suit upon it. The defendants demurred to the plaintiff’s petition, on the ground that the bond was not assignable, but the demurrer was overruled. They then answered, setting up their right of property, and the verdict of the jury prior to the forfeiture of the bond as a defence. This answer was, on motion, stricken out, and a judgment rendered for the plaintiffs, from which the defendants appealed.

      H. N. Dedman, for appellants.
    1. The bond is not assignable, so as to enable the assignees to sue thereon in their own names. (Thomas v. Cox, 6 Mo. Rep. 506.) 2. The bond is not such an instrument as the statute permits a constable to take. (R. C. 1845, p. 482, § 31.) 3. The verdict of the constable’s jury was a legal excuse for the non- delivery of the property. (R. C. 1845, p. 663, § 12. Page & Bacon v. Butler, 15 Mo. Rep. 73. 7 Blackford, 43.)

      A. P. & P. B. Garesché, for respondents.
   Scott, Judge,

delivered the opinion of the court.

The statute, in permitting a delivery bond to be given for property seized under execution, did not contemplate taking away a trial of the right to the property seized, interposed by a claimant. The statutes in reference to this subject should be construed so as to make them stand together. After giving a right to a trial, it could not have been intended that the officer or the defendant in the execution might, at will, defeat it by a delivery bond. If this right is preserved to the claimant, then a power to the plaintiff in the execution of compelling the officer, by a bond of indemnity, to sell, notwithstanding a verdict in favor of the claimant, follows as a necessary consequence. (R. C. 1845, tit. Justices’ Courts, art. 7, sec. 16, p. 663.)

The difficulty in this case grows out of the fact that the bond for the delivery of the property does not conform to the requirements of the statute. The 39th section of the act concerning executions, makes the 31st and the seven following sections of that act applicable to justices’ courts. The 31st section requires that the bond taken by officers for the delivery of property seized under execution, shall be given by the defendant in favor of the plaintiff. The bond in this case and on which this suit is brought, is not given by the defendant, nor is it payable to the plaintiff. It is clear that such a bond would not sustain the summary proceedings authorized by the statute on regular bonds. It does not appear that the defendant assented to the act of the obligors in giving the bond, and, without their consent, they could not be subject to the proceedings on such bond contemplated by the statute. The bond not being such as was required, the plaintiffs in the execution would not be bound to accept it, but might disregard it and hold the constable liable for neglect of duty, in the event the property was not restored on the day of sale.

But, as the plaintiffs have accepted the bond from the constable, and brought this suit upon it, two questions arise ; whether this action can be sustained in the name of the plaintiffs, and whether the bond, not being good as a statutory one, an action at all can be maintained upon it in anybody’s name. In those states in which delivery bonds are allowed to be taken by an officer seizing property by virtue of an execution, the doctrine is maintained that a bond, not valid as a statutory one, is yet good as a common law bond. That is, although such bond would not authorize the summary proceedings given by the statute on them, yet, not being considered as within the influence of the statute of 28 Henry VI, ch. 9, and being valid on general principles, they would support an ordinary action at law. (Johnston v. Meriwether, 3 Call, 527. Poston v. Southern, 7 B. Mon. 289. Drake v. Moore, 1 Bibb, 351.) The case of Meze v. Howver, (1 Leigh, 442,) does not contradict that cited from Call, for it must be borne in mind that this last opinion was expressed on a motion in a summary way on the bond. The principle has been frequently recognized in this state, that a bond not good as a statutory one, may be upheld as a bond at common law, where it is not prohibited being taken, and there is nothing in it showing that it contravenes the policy of the law. In a word, that it is no objection of right to a bond taken by an officer, that there is no statute law authorizing it to be taken. If there is nothing in tbe bond tending to oppression or extortion, nor contravening public policy, its validity will depend on those considerations which affect bonds between individuals, voluntarily executed.

It may be said that, as this is a common law bond, the defendants should be permitted to show, in mitigation of damages, that the property belonged to them, and that no injury was sustained by their failure to deliver it in pursuance to the condition of the bond, as was done in the case of Bursely v. Hamilton, (15 Pickering.) To this it may be answered that,, as the officer, by the failure of the defendants, became liable' to the plaintiffs for the debt, it is not just that this responsibility should rest on him, as it was caused by the act of the defendants. As the liability of the officer to the plaintiff's was. incurred by the fault of the defendants, it is nothing but right that they should be indemnified by them. The statute here, empowering the plaintiff to indemnify the officer, and compelling, him to sell, notwithstanding the property is found not to belong to the defendant in the execution, makes the difference-between this case and that of Bursely v. Hamilton.

A bond with a collateral condition was not assignable under the former system of practice, so as to enable the assignee -to maintain an action thereon in his own name. Such an instrument was not assignable, within the meaning of the statute concerning bonds and notes. (Craig v. Craig, 1 Call, 483.), But, as the present practice act requires a suit to be brought ini the name of the party rea-lly in interest, and as it is not denied* but that the bond in suit has been assigned to the plaintiffs-, they are like the assignees of an open account, who may maintain an action in their own name, as has been repeatedly held by this court.

The other judges concurring, the judgment will be affirmed;.


text:
    Meier, Plaintiff in Error, vs. Lester & Krum, Defendants in Error.
    1. Under the practice act of 1849, a suit upon an official bond given to the state must he brought in the name of the state, as the trustee of an express trust. (State v. Moore, 19 Mo. Eep. 369, affirmed.)

      Error to St. Louis Court of Common Pleas.

    This was an action brought in the name of Meier, upon a constable’s bond given to the state. The breach of the condition was alleged in the petition to consist in a seizure and sale by the constable of property of the plaintiff, which was by law exempt from execution. A demurrer to the petition was sustained by the court below, and the plaintiff appealed.

      Hart & Jecho, for plaintiff in error.

      C. Harding, jr., for defendants in error.
   Leonard, Judge.

This judgment must be affirmed, according to the case of the State v. Moore, (19 Mo. Rep. 369,) where it is holden that the suit upon the official bond of an officer, given to the state, must be in the name of the state, as the trustee of an express trust, within the meaning of our new practice aet. Judgment affirmed accordingly.


author: Ryland , Judge,

text:
    Christy’s Administrator, Defendant in Error, vs. Myers, Plaintiff in Error.
    11. The supreme court will not interfere with the discretion exercised hy the court below in refusing to set aside a judgment hy default for failure of attorney to file answer, unless it can clearly see that it has been abused.

      3. Motions are no part of the record, unless made so hy bill of exceptions.

      Error to St. Louis Circuit Court.

    ’This was an action upon a note. Judgment by default was rendered for want of an answer. Afterwards, the defendant’s attorney filed a motion to set aside tbe default, and in support thereof, filed his affidavit, stating that an answer was prepared and sworn to by the defendant, denying the execution of the note, and left with him to be filed, but that he was detained in the country by sickness until it was too late to file the answer in time. The motion was sustained and leave granted to file an answer instanter. No answer being filed, another judgment by default was taken, and another motion to set the same aside was filed, supported by the attorney’s affidavit, stating that he could not be present when the former motion was decided. The second motion was sustained on the 19th of December, as stated in the record, and the cause continued until the first Monday in February following. On the 10th of January, an entry was made on the record, vacating the last entry, and ordering the motion to be sustained on condition that the defendant admitted aprima facie case. A trial by jury resulted in a verdict for the plaintiff, and the defendant brought the case here by writ of error. The motions were set out in the record, but no bill of exceptions was saved.

      Lewis & Henning, for plaintiff in error.

      Comfort & Manter, for defendant in error.
   Ryland , Judge,

delivered the opinion of the court.

This case presents no question worthy of the consideration of this court. Were we to consider all the motions and affidavits which the clerk has thought proper to copy into' the transcript, as part of the record of this case, it would only present then the mere question of discretionary action on the part of the court below. We cannot see, in this case, an abuse of this discretion, calling for the action of this court for its correction. The matter of setting aside a judgment by default, upon the application of the attorney, for the failure to file an answer for his client, is so peculiarly within the discretion of the court, that this court must see an abuse clearly of this power, before we will reverse. But it is needless to say any thing further on this subject. There is no bill of exceptions in this transcript showing that any thing was excepted to, or any objection taken and saved below. “It is an invariable presumption of this court, that the proceedings of inferior courts are correct unless the contrary appears. He who seeks to reverse them, must put his finger on the error committed by them. Although a motion is set out by a clerk in the record, that does not make it a part of the record. A motion is no part of the record, and it can only be made so by incorporating it into a bill of exceptions.” ( United States v. Gamble & Bates, 10 Mo. Rep. 459.)

The judgment below is affirmed; the other judges concurring.