text:
    Keithley, Defendant in Error, v. May, Plaintiff in Error.
    1. The discontinuance of an action as to one or more of several defendants in an action on a contract is not a matter entirely at the discretion of the plaintiff, and the courts should not allow it to he done where it will work injustice by depriving a party of a just defence to the action.
    2. A. and B. were sued jointly on a promissory note. A. was served person-, ally with process; B. by copy; but the sheriff returned both personally served. They not appearing at the return term, a judgment by default was rendered against both. Afterwards and during the term, the sheriflj upon leave given, amended his return, and it then appeared that B. was served by copy. B. moved the court to set aside the judgment by default, and set forth in his affidavit that he had a meritorious defence and its character. The court sustained the motion, and on motion of plaintiff dismissed the suit as to B. and rendered judgment by default against A. Held, that the court improperly exercised its discretion in permitting plaintiff to dismiss his action as to B.

      Error to St. Charles Circuit Court.

    The facts sufficiently appear in tbe opinion of the court.

      S. S. Sf T>. C. Woods, for plaintiff in error.

      Woodson, Edwards <$f Randolph, for defendant in error.
   Soott, Judge,

delivered the opinion of the court.

This case involves the question of the propriety of the conduct of the court below in permitting the plaintiff to dismiss his petition as to the defendant Robert May. • Robert and Pinckney May were jointly sued on a promissory note. Pinckney was personally served with the writ, whilst Robert. was served by leaving a copy. The sheriff made a return that both defendants had been personally served, and they .not appearing on or before the second day of the return term, a judgment by default was taken against them. Af-terwards during the term, on motion, leave was given to the sheriff to amend his return, and .the amendment having been made, it then appeared that Robert May had not been personally served with process. The court thereupon, on motion of the plaintiff, (the judgment by default having been set aside,) permitted him to dismiss his petition as to the defendant Robert May, and entered a judgment against Pinckney May. Robert May, in, an affidavit in support of his motion to set aside the judgment by default against him and for leave to plead, stated that he had a good defence; that the note sued on was executed to William Keithley, the father of the plaintiff; that one Thomas Ward sold and delivered to the defendant a note on the said William Keithley for three hundred dollars before the note sued on was assigned to the plaintiff. It was further stated that the assignment was fraudulent and that William Keithley was wholly insolvent.

From the foregoing statement of facts, it will be observed that this case is not one falling within the provisions of the nineteenth section of the fifth article of the practice act prescribing the circumstances under which a plaintiff may dismiss his petition as to some of the defendants. The defendant Robert May was regularly served with process, and appeared and desired to defend the action, but because he had been served in such a way as entitled him to have the trial of the cause postponed until the next term, the plaintiff, in order to prevent this, discontinued as to him and took a judgment against the other defendant.

As the court had no warrant in the statute law to support the course adopted, its action must look to the common law for principles by which it may' be sustained. ' In actions of tort at common law the plaintiff could enter a nolle prose-qui as to one or more of the defendants. Our statute makes all joint contracts several; and, when several are sued jointly, allows a judgment against one or more of tliem, changing the common law in these respects. Notwithstanding these changes, we do not conceive that the discontinuance of the action as to some of the defendants in suits on contracts is a matter entirely at the discretion of the plaintiff, and the courts should not allow it to be done when the effect of such a course will he to deprive a party of a just defence to the action. In the case of Brown v. Pearson, 8 Mo. 159, it was held that the dismissing of the action as to some of the parties was a matter of practice resting in the discretion of the court. The same principle was maintained in the case of Minor v. The Mechanics’ Bank of Alexandria, 1 Pet. 59. In the case before us, the defendant, against whom the judgment was taken, could not have used the defence which Robert May had to the action, nor was he in a situation to do so, as a judgment had been entered against him. If Pinckney May had satisfied that judgment, he would have been entitled to recover the half of it from Robert, and thus Robert would have been compelled to pay a debt against which he had a just defence, by reason of the court’s having permitted the plaintiffs to dismiss his action as to him. It is clear, that this should not be tolerated, where there is any suspicion that the plaintiff’s object is to get rid of a defence to his action. Thus a surety, who is sued with his principal, may, by collusion with the plaintiff, suffer a judgment to go against him, and, after satisfying it, compel the plaintiff to refund, and thus force him to pay an unjust debt, unless he should be able.to show the collusion — a matter difficult to be proved. Prom the facts appearing in this record, we are of opinion that the court below improperly exercised its discretion in pei’mitting the plaintiff to dismiss his action as to' the defendant Robert May. The judgment, therefore, will be reversed and the cause remanded;

the other judges concurring.


source: Caselaw Access Project

author: Napton, Judge,

license: Public Domain

text:
    Evans, Respondent, v. Gibson, Appellant.
    1. Where under a judgment against several persons for a partnership debt a levy is made upon partnership property or upon the private property of one partner, and one of the partners purchases the same at the execution sale, the sheriff’s sale will not, it seems, operate in equity a transfer of the title to the purchaser; it will still he subject to levy under the same judgment if the same remain unsatisfied.
    2. Where one partner expends the partnership funds in the purchase of property in his own name, he will hold the'same in trust for the partners.
    3. The relief afforded by the decree in a cause should conform to the case made out in the petition.

      Appeal from St. Frangois Circuit Cou/rt.

    This was a suit by Jesse R. Evans and James S. Evans against James Gibson. The petition was substantially as follows: Plaintiffs state that the defendant, in 1854, entered into a contract in writing with Alfred Reed — who was at the time acting partner of the firm of A. Reed &, Co., in which plaintiffs were partners, which firm was afterwards known under- the style of J. S. Evans & Co. — to convey to said Reed or the ■ firm two certain lots of ground in Kennett’s square, of about an acre each; that said contract has been delivered over to defendant by Reed for the purpose of cheating and defrauding plaintiffs; that said lots were purchased by Reed for the firm, and he paid for them out of the means of the firm ; that he improved them, expending some $1,000 or $1,200 in erecting substantial buildings upon said lots, out of the funds of the partnership ; that Reed put only a small amount of'money or property in the firm, and the said firm and its business was carried on mostly by the means and credit of plaintiffs ; that Gibson was to receive for said lots eighty dollars ; that he did receive, in part payment, thirty-seven dollars and seventy-eight cents in goods from the store of J. S. Evans & Co.; that afterwards James S. Evans, in behalf of himself and his partners, tendered Gibson fifty dollars as the balance of purchase money and demanded a conveyance.

      Plaintiffs further stated that in 1856 judgments were rendered against said firm, composed of A. Reed, J. S. Evans, and Jesse R. Evans, which were a lien upon their interests in said land; that under one of these judgments in favor of James A. Eddy and others, an execution issued and was levied upon said lots, and James S. Evans became the purchaser ; that the sheriff’s deed conveyed to said J. S. Evans all the right Reed had at the date of the rendition of the judgment; that Reed, being the acting partner, used the property and cash of the firm for his own private purposes; that so soon’as he found out that his iniquitous practices had been discovered, he, for the purposes of injuring plaintiffs, gave up to Gibson the written obligation for a deed for the lots above mentioned, advising Gibson to contend for the lots as his, and if he succeeded in cheating plaintiffs out of what they had expended in the purchase and improvement of said lots, to pay over to Reed a certain portion of the proceeds; that defendant had full knowledge of Reed’s fraudulent designs and practices, and conspired to assist Reed in cheating them out of the lots and the money expended upon them. Plaintiffs bring into court the money that may be due Gibson on the purchase of said lots, and pray that he may be compelled to bring into court the written agreement above referred to; and that he may be compelled by a decree of court to convey the lots in question to plaintiffs.
    It appeared in evidence that the judgment in favor of Eddy and others was rendered November 1,1856. The title bond referred to was given up to Gibson November 21, 1856. There was evidence introduced tending to show that the lots were purchased and improved with partnership funds. After the evidence was closed, the court allowed the plaintiff to amend the petition by striking out the name of Jesse R. Evans as plaintiff, and rendered a decree vesting the property in the plaintiff James S. Evans.

      Noell and Carter, for appellants.
    I. The bill is multifarious, and mixes up equities of the firm of James S. Evans & Co. with the equity of James S. Evans as purchaser at the sheriff’s sale. This sheriff’s deed is, as to J. S. Evans, void. He-could not, under the circumstances, purchase the property and hold it against the other partners. The court erred in admitting the sheriff’s deed.
    Frissell, for respondent.
    I. As between Gibson and Reed there was an attempt to cheat and defraud James S. and Jesse R. Evans. The lots were purchased and improved with the funds of the copart-nership.
   Napton, Judge,

delivered the opinion of the court.

The decree in this case appears to be based entirely upon the. title acquired by the plaintiff, J. S. Evans, at the sale under execution against A. Reed & Oo. As the judgment, under which this execution issued, had been obtained on the 1st of November, 1856, and the delivery of the title bond by Reed to the defendant did not occur until the 21st of November of the same year, the plaintiff, who purchased at the sheriff’s sale, was supposed to have acquired all the title of Reed; so that, at the date of Reed’s attempted relinquishment to Gibson, he had nothing in the land to relinquish. Hence the decree, after the name of Jesse R. Evans was stricken out from the case as plaintiff, was for James S. Evans, the purchaser of Reed’s interest at the sheriff’s sale, and the legal title of Gibson, the defendant, was vested solely in him.

The judgment of the court appears to be entirely independent of all the allegations of fraud and trust, which constituted the very basis upon which the petition was framed. The decree proceeds, upon a theory of the case not assumed in the petition. Although the judgment against A. Reed & Co., in November, 1856, the execution, the sheriff’s sale under it, and the purchase by one of the plaintiffs, are stated in the petition, yet they are not relied upon as constituting an independent ground for relief,- but are merely referred to in connection with the more specific charges of fraud and trust. The decree is therefore a complete departure from the pleadings, and is based upon a case not averred in the petition.

Aside from this objection, however, which is merely formal, we do not regard the purchase by Jas. S. Evans as having the effect which the circuit court seems to have attributed to it.

It is not material, in determining the character of this purchase, whether the lots are to be regarded as the property of the partnership or the individual property of Reed. The former is asserted throughout the petition, and is the theory which the plaintiffs could not of course controvert without a radical change in their bill. Upon this supposition, we have, then, a judgment and execution against a partnership, and partnership property levied on and sold to one of the partners. Will such a purchase be regarded in a court of equity as converting the property from the partnership to individual property of the purchasing partner? The debt for which the property is sold is the debt of all the partners, and tflie partner who bids is under as much obligation to pay it as either of the others.

If the lots belonged to Reed and not to the partnership, would the purchase transfer the property from Reed to J. S. Evans ? Each partner and his individual property is liable for the debts of the concern, as well as the partnership property. If the sale could have the effect of transferring the title from Reed to J. S. Evans, it is clear that it would still, as the property of Evans, bo subject to levy for the same debt, if the execution remained unsatisfied. We suppose a court of equity would, in such cases, regard the title as unchanged. It is the case of a tenant in common buying up an encumbrance, which a court of equity always has considered as enuring to the benefit of the common title.

If this be so, it is obvious that the merits of this case will not be affected by the sheriff’s sale in November, 1856, and that this incident will not dispense with the necessity of an inquiry into the allegations of trust or fraud, and the case must be remanded with a view to this investigation.

It is, however, proper to add, as the case goes back, that the petition in this case, in any theory of relief sought, is singularly deficient. There is no allegation that the partnership of A. Reed & Co. has ever been dissolved, nor that any settlement has ever been had of the partnership concerns, nor that Reed is indebted to the partnership. There are allusions made in the petition to charges of embezzlement, from which it might be inferred that Reed was no longer a member of the partnership, and that the partnership had in fact ceased to do business, but these are mere conjectures. Nothing definite is stated in the petition on these points.

So far as the facts are developed by the testimony now in the bill of exceptions, it would seem that the important inquiry will be whether the lots in controversy were purchased with partnership funds; if so, whether the defendant was aware of the equitable interest of the other partners at the time he procured from Reed a delivery of the title bond; and if both these issues were found favorably to the complainants, they are certainly entitled to a decree in the event that Reed is no longer a member of the partnership, and that his accounts have been adjusted. The other judges con curring, the judgment is reversed and case remanded.


author: Ewing, Judge,

text:
    Caldwell, Appellant, v. Dickson, Respondent.
    1. A motion for a new trial on tlie ground of newly discovered testimony must be supported by tlie affidavit of the witness or witnesses expected to testify to the newly discovered facts.

      Appeal from Marion Circuit Court.

    This was an action on a note given for the hire of a slave for a year. After eleven months of the year had expired, the plaintiff had taken the slave from the possession of the defendant, and had sold her. The defence is based upon this fact.
    Anderson, for appellant.

      Vmswearingen, for respondent.
   Ewing, Judge,

delivered the opinion of the court.

The evidence of the witness William B. Caldwell was properly excluded for irrelevancy. The paper to which he referred was a different one from that on which the suit was founded'; he had no knowledge that it was ever delivered to the respondent, or that it was ever seen by him. The declarations of the respondent, as testified to by another witness (Hays), related to a paper not containing the stipulation of that mentioned by Caldwell, but one which was executed by the appellant and delivered to Dickson, which he (Dickson) admitted to be a part of the agreement respecting the hiring. This instrument gave respondent the right to return the slave to her owner before the year expired, if he chose to do so. These declarations of the respondent, as detailed by the witnesses, are also consistent with his answer to the rule to produce an instrument which plaintiff alleged contained a different stipulation. In no view, therefore, that we can take of the evidence of the witness Caldwell, whether considered-alone or in connection with the testimony of other witnesses, had it any tendency to prove a contract of the kind alleged to have existed, and there was no error in excluding it.

The instructions asked by the respondent were based upon the hypothesis of an agreement between the parties to the suit, by which plaintiff was permitted to regain the possession of the slave, before the expiration of the year, in the event he should desire to sell her, respondent paying for the time he might keep her. There was no evidence of any such agreement, and nothing upon which to predicate such instructions, and they were properly refused.

The only remaining point is, the refusal of the court to grant a new trial. The ground alleged was newly discovered evidence. The affidavit in support of the motion states that the affiant has learned upon good and sufficient authority that there is a witness by whom he can prove that the instrument of writing containing the terms of the hiring of the slave contained a condition authorizing the plaintiff to take said slave away, from the defendant at any time during the year in case he chose to do so ; that he had used great exertion to produce the evidence previous to the trial, but failed, and believes he can procure it at the next term of the court; and that he had no knowledge of the existence of this evidence before the trial, &c.

The application is defective for several reasons, but chiefly because the affidavit of the witness himself is not produced, stating the facts he would testify to on the trial. This should have been done, or some cause shown for failing to do so. In such cases, the best evidence of the truth of the allegations should be given, in order to guard against unfounded applications for new trials. It is not enough for the moving party to swear that he is informed and believes or has learned that new evidence has been discovered, or that a new witness has been found. The information must come directly from the newly discovered witnesses, so that it may appear what they ready are to testify. (3 Graham & Waterman, New Trials, 1067; Boggs v. Lynch 20 Mo. 566.)

The judgment will be affirmed;

the other judges concurring.


author: Scott,. Judge,

text:
    Pipkin et al., Defendants in Error, v. Allen & wife, Plaintiffs in Error.
    1. Where a final judgment in a partition suit has not been rendered, a 'writ of' error will not lie.
    2. Where two own a tract of land as tenants in common, and a third person acquires title to a portion thereof by adverse possession under the statute of limitations, the portion thus lost will be the common loss of the two estates held in common, and will be distributed between them according to their respective interests.
    3. Where a person, owning a tract of land containing, say twelve hundred acres, conveys five hundred acres thereof, not designating the land conveyed by metes and bounds, the purchaser will hold an undivided interest in the whole proportional to the number of acres conveyed to him.

      Error to Jefferson Circuit Court.

    This was an action for partition of a tract of five hundred and forty arpens of land. The facts are briefly as follows: The plaintiffs Pipkin and Beal claim to be tenants in common with the defendants of said tract. Plaintiffs claim two hundred acres each, leaving forty acres for defendants. David Boyle claimed a settlement and improvement right containing one thousand two hundred and twenty arpens. Sis hundred and forty acres of this tract were afterwards confirmed by the United States. On the 23d of November, 1813, Boyle executed a deed of conveyance, recorded February, 1814, in favor of William Bussell. By this deed Boyle conveyed to Bussell a tract of seven hundred and twenty arpens, described as follows: “ Seven hundred and twenty arpens of land, be the same more or less; that is to say, that said David Boyle claimed a settlement and improvement right of one thousand two hundred and twenty arpens of land situated on Sandy Creek, in the late district (and present county) of St. Louis, five hundred arpens of which have been selected by the recorder of land titles as being ratified by the law of Congress ; which five hundred arpens the said David Boyle and Jenny his wife have sold to James Anderson ; the balance and remainder of the said tract and claim of land, being seven hundred and twenty arpens, on Sandy Creek as aforesaid, which said balance of seven hundred and twenty arpens, be the same more or less, as the title thereof, or of any part thereof, is or may be eventually ratified, he, the said David Boyle, for the sum and consideration aforesaid, does by these presents grant, bargain and sell to the said Bussell, his heirs and assigns forever, together with all hereditaments and appurtenances which to the said seven hundred and twenty arpens in anywise belong, to him the said Bussell, his heirs, &c., at the entire risk and hazard by him, the said Bussell, without any recourse whatever to the said Boyle or his heirs for the consideration money, or for any other costs,” &c. Plaintiffs claim title ■under said James Anderson. Anderson died in St. Louis in 1812.
    On the 28th of February, 1814, Boyle conveyed by metes and bounds five hundred arpens of said tract of one thousand two hundred and twenty arpens to Adam Brown. Evidence was introduced with a view to show that the tract thus conveyed to Brown was the same that had been previously conveyed to Anderson. Brown, in 1815, conveyed the same to one Hammond. Hammond conveyed four hundred acres to William Russell in 1817. Hammond conveyed one hundred acres to one Metts. This tract of one hundred acres conveyed to Metts had been in the adverse possession of Metts for more than twenty years. It was embraced within the sis hundred and forty acres confirmed to Boyle. Evidence was introduced with a view to show that the sale of Boyle to Anderson had been rescinded. It consisted of statements made by a witness to the effect that he had, after the sale to Anderson, seen the horse and cart, that he understood constituted the consideration given by Anderson to Boyle, in the possession of Anderson. Defendants claim title under William Russell.
    The court gave the following instructions at its own instance : “ 1. The adverse titles of the plaintiffs and defendants in this cause depending on a priority of the dates of their acquisition by each respectively from David Boyle, the confirmee, the jury will render their verdict for the party who has shown the prior right. 2. The defendants, having shown a chain of title deeds from David Boyle to themslves, are entitled to their verdict, unless the plaintiffs have satisfied them that before the date of the deed of Boyle to Brown, said Boyle had sold the land in controversy to James Anderson, which sale remained uncancelled or undisposed of by him at the date of his (Boyle’s) deed to Brown ; and if they find the latter proposition to be true, they will find for the plaintiffs. 3. By the law in force in the territory of Missouri at the date of the alleged sale by Boyle to Anderson, a verbal contract of sale was sufficient to pass a title from him to said Anderson, and no deed was necessary for that purpose.”
    The court gave the following instruction at the instance of the plaintiffs: “ 4. The recital contained in the deed from David- Boyle to William Russell dated November 22, 1813, that David Boyle and Jenny his wife had sold to James Anderson five hundred arpens of the tract of land mentioned therein, is evidence of that fact for their consideration against the present defendants; and unless the jury find from the evidence in the casé that such sale was afterwards cancelled by the parties, the plaintiffs are entitled to an interest of five hundred arpens in the tract of land mentioned in the petition, and the jury will so find.”
    The defendants asked the court to instruct the jury as follows : “ 5. If the jury find from the evidence that Metts became the owner of one hundred acres of the land, five hundred arpens, in controversy, then, if the plaintiff recovers at all, he can only recover the five hundred arpens diminished by one hundred acres. 6. If the jury find from the evidence that the agreement between Boyle and Anderson in reference to the five hundred arpens of land was rescinded, or that the agreement was transferred by Anderson to Brown, and that Boyle made the conveyance to Brown in fulfillment of the agreement, the plaintiff can not recover, and the jury will find for the defendants.” Of these the court refused instruction No. 5, and gave instruction No. 6.
    The jury found the plaintiffs “ entitled to three hundred and twenty-five acres of the land in controversy. ” The court ordered that partition be made among the parties according to their respective rights as ascertained, and appointed commissioners to make partition. At this stage defendants sued out a writ of error to the supreme court.

      Frissell, for plaintiffs in error.
    1. Plaintiffs, if they have any rights, have mistaken their remedy. There is no tenancy in common in the case. No one sets up a claim adverse to Mrs. Allen to the land outside the five hundred arpens. Pipkin and Beal own by metes and bounds. The boundaries of the five hundred arpens are clearly defined in the deed from Boyle to Brown. The'instructions given were erroneous. The first instruction assumes that the titles of both plaintiffs and defendants are good, without referring to any fact to be found by the jury. The second instruction is also erroneous. The third instruction is also wrong. Yerbal sales under the Spanish law, to be valid, must be followed by possession. Anderson never was in possession. Metis owned one hundred acres out of the five hundred arpens. 'Plaintiffs had no right to make that land off of defendant. The instruction asked by defendant should have been given.

      Noell and Beal, for defendants in error.
    Í. There is no final judgment upon which a writ of error will lie. (26 Mo. 506 ; 20 Mo. 432.) The interest of Pip-kin and Beal was an undivided interest as tenant in common. The five hundred arpens were to be carved out of the whole survey. The deed to Brown is to be thrown out of the account. Wo are not bound by the recitals of that deed. The sale to Anderson was prior in point of time. Anderson was dead when the deed to Brown was executed.
   Scott,. Judge,

delivered the opinion of the court.

The question whether the plaintiffs and .defendants were tenants in common of the land in controversy was not raised on the trial in the court below ; it is not, therefore, regularly here. But we will consider whether there is any foundation for that objection. Boyle was possessed of a large tract of land. He made a deed to Russell, in which it is recited that the.said Boyle. claimed a settlement and improvement right of twelve hundred and twenty arpens of land situate on Sandy Creek, “ five hundred arpens of which have been selected by the recorder of'land titles as being ratified by the laws of Congress ; which five hundred arpens the said David Boyle and Jenny his wife have sold to James Anderson ; the balance and remainder of the said tract and claim of land, being seven hundred and twenty arpens, situate on Sandy Creek as aforesaid, which said balance of seven hundred and twenty arpens, be the same more or less, as the title thereof, or of any part thereof, is or may be eventually ratified, he, the said Boyle, for the sum and consideration, &c., does by these presents grant, bargain and sell to the said Bussell,” &c. The recorder of land titles confirmed six hundred and forty acres of this tract. There is no evidence that he ever selected five hundred arpens ; indeed we know this is not so. There is, then, no description of the five hundred arpens conveyed to Anderson. The case is like that of a man’s owning a tract of land containing fifteen hundred acres, and he sells five hundred acres of the tract to another without any other description. In such case, would the deed be void for the uncertainty of the manner in which the land conveyed was described; or, ut res magis valeat quain pereat, would not the vendee hold as tenant in common with the seller, and would not the tract be divided between them in proportion to their respective interests ? Such we conceive to be this case. Bussell succeeding to the right of Boyle, stands in the same relation to Anderson that Boyle did.

If there is once a tenancy in common established between the holders of the Bussell and Anderson titles, it must follow that, Metts entering subsequently on the land and occupying a portion of it adversely before any partition or division of the common land, the portion obtained by him under the statute of limitations must be the common loss of the two estates held in common. Although Brown claimed Anderson’s interest located by metes and bounds, and sold it to Hammond by metes and bounds, and Hammond a portion of it by metes and bounds to Metts, yet it is obvious that these acts could not affect those claiming Anderson’s interest by a prior right. Brown and those claiming under him could not, by their acts and declarations, affect the interests of those who were strangers. Although those claiming under Brown had located Metts on a particular part of the tract, yet they had no right to do so at the expense of those who held an interest-in Anderson’s claim prior to that of Brown. Then, as the tenants of the Anderson and Russell titles had undivided interests in the confirmation of six hundred and forty acres, if a portion of the common property is lost, the loss must be borne by the tenants in common in proportion to .their respective interests. There was, therefore, no error in refusing the defendants’ instruction to the effect that Metts’ claim should be deducted entirely from the interest of those claiming under Anderson. Indeed, according to the calculation we mate, the allotment of the portions, as made by the court, was much more favorable than the rule we have laid down would warrant. Say Anderson’s five hundred arpens (rejecting fractions) was equal to four hundred and seventeen acres ; then his proportion of the loss — the entire loss being one hundred acres out of the six hundred and forty, which was all that was confirmed — would be sixty-four acre's. Russell’s interest being two hundred and twenty-three acres, the remainder of the six hundred and forty acres, after deducting the four hundred and seventeen acres, would be about thirty-six acres. This would give Anderson three hundred and fifty-three acres, and Russell one hundred and eighty-seven acres. The portion given to those claiming under Anderson by the decree is three hundred and twenty-five acres, and that to those claiming under Russell is two hundred and fifteen acres. This is an answer to the error complained of in the instruction given at the instance of the plaintiffs, by which the jury were directed that the interest of the plaintiffs in the land in controversy was five hundred arpens.

We do not conceive that there is any cause for complaint on the part of the defendants against instructions numbered one and two. The two instructions, taken together, were as favorable as. the case made by the defendants would warrant. Although the jury was told by the'first instruction that they should give their verdict for the party showing the prior right, yet the second instruction.following immediately after, , and explaining the first, presented the defendants’ case in as favorable a light as they could have desired.

This writ of error having been sued out before there was a final judgment — the judgment being that partition be made, and no partition having been made and confirmed — will be dismissed.

The other judges concur. Writ dismissed.


author: Scott, Judge,

text:
    Collins, Defendant in Error, v. Warren et al., Plaintiffs in Error.
    1. A. and B. were partners; a lot of ground was conveyed to them. The lot was improved, a dwelling house huilt thereon became the residence of B. B., after living in it for several years, died leaving his widow in possession of it. Previous to the death of B., A. instituted a suit against B. for an adjustment of the partnership concerns, and prayed a sale of the said lot for the payment of partnership debts, it being alleged to be partnership. After the death of B., the suit was revived against his administrator only. After the institution of the suit and before the death of B., C. bought all the interest of B. in the lot at sheriff’s sale, it having been mortgaged to C. A. made C. a defendant by supplemental bill, on the ground that he had purchased with notice of the rights of A. A decree was rendered against B.’s estate, and a sale of the lot was awarded, and the interest acquired by C. was postponed until the debt adjudged to A. should be first paid. At the sale under the decree A. became the purchaser of the lot. He instituted an action of ejectment against the widow of B: Held, that not having been made a party to the suit of A. she was not bound by the decree, and it could not be used as evidence against her; that under the circumstances, the plaintiff in ejectment could only recover an undivided half of the premises and corresponding.damage.
    2. Where a lot with a dwelling house thereon is owned by two persons as tenants in common, and one dies in possession of the whole, leaving a widow residing therein, she will not be entitled, under the sixteenth section of the dower act of 1845 (R. C. 1845, p. -432) as against the surviving tenant in common, to remain in possession of the whole lot until dower is assigned her. ■

      Error to Hannibal Court of Common Pleas.

    The facts in evidence sufficiently appear in the opinion of the court. The court, at the instance of the plaintiff, instructed the jury as follows: “ Although it may appear from the evidence that Thomas N. Warren in his lifetime and during his coverture with Maria Warren, the defendant, was seized of an estate of inheritance in the whole or any undivided part of the premises in controversy; and although it may also appear that said Maria,is the widow of said Thomas N. Warren, and that the said Thomas N., at the time of his death, was residing on the premises in question, yet if it further appear from the evidence that, after the said Thomas N. so became seized and before his death, all the interest and estate of the said Thomas N. were duly sold and conveyed to How, Claflin & Cook, and that the,interest and estate so conveyed to How, Claflin & Cook were, before the institution of this suit, conveyed and transferred to the plaintiff, the jury should find a verdict for the plaintiff for the possession of the premises in question. And the court instructs the jury that the document read in evidence, purporting to be a deed from sheriff King to How, Claflin & Cook, if genuine, is sufficient in law to pass the title and estate .of said Thomas N. Warren in said premises to said How, Claflin & Cook ; and that if th.e document read in evidence, purporting to be a deed from sheriff Maddox to the plaintiff Collins, is genuine, the same, with the proceedings on which the same is based, is sufficient in law to pass to the plaintiff all the title and right of said How, Claflin & Cook in the premises.”
    The following instruction asked by the defendant was refused by the court: “ By the deed of Higbee to Warren and Collins of the lot during the coverture of defendant, and her husband dying in possession of the mansion house, the defendant had a dower interest in said lot and house, and she was entitled to the possession of said house and lot until her dower was assigned to her, and they should therefore find for the defendant.”
    The jury found for the plaintiff.

      Porter £f Harrison, for plaintiff, in error.
    I. Warren was seized of an estate of inheritance in the premises. The husband had a mansion house thereon. Mrs. Warren had not relinquished her right to dower. She had the right to remain in possession until dower was assigned her. The instruction given was erroneous. (R. 0. 1845, p. 430 ; 4 Kent, Comm. 62; 1 Halst. 369 ; 3 Halst. 129; 3 J. J. Marsh. 48.)

      Dryden and Lipscomb fy Lakenan, for defendant in error.
    I. The instruction given was correct. Until dower was assigned defendant had no right to enter upon the property-in question. (3 Bac. Abr. 212 ; 4 Kent, Com. 59; 7 Johns. 247; 17 Johns. 167; 20 Johns. 411.)
   Scott, Judge,

delivered the opinion of the court.

It appears from the record and pleadings in the case that Wm. R. Collins and Thomas N. Warren, the husband of the defendant Maria Warren, were partners. In December, 1848, Stephen Higbee conveyed the lot in controversy in this suit to the said Collins and Warren. The lot was improved, it is alleged, with the partnership funds, and the house built thereon became the residence of T. N. Warren, until some time in 1852, when he died, leaving the defendant, his widow, in possession of it. Prior to the death of Warren, his partner Collins instituted a suit against him for the adjustment of the partnership concerns, and for the sale of the lot in controversy for the payment of the partnership debts, it being alleged to be partnership property. Warren died during the pendency of this suit, and it was revived only against his administrator. Afterwards a decree for a large sum was rendered against Warren’s estate, and a sale of the lot was awarded to satisfy it. Under this decree, Collins became the purchaser of the lot and received a deed therefor in 1856. The suit by Collins against Warren was begun in February, 1849; and in March, 1849, How, Claflin & Cook bought, at a sheriff’s sale, all the interest of Warren in the lot, it having been previously mortgaged to them. After this, Collins filed a supplemental bill making How, Claflin & Cook parties defendant to his suit, on the ground that they purchased with notice of his rights, and by the decree their interest was postponed until the debt adjudged to Collins should be first satisfied.

All this controversy has arisen from- the failure of Collins to make Mrs. Warren a party to his suit after the death of her husband. She, not being a party to the suit, is not bound by the decree pronounced in fit; nor is it any evidence against her. But it must be said that if the lot was partnership property, and her husband as partner was insolvent, and it was sold for the payment of the partnership debts, she would not be entitled to dower in it. (Duhrig v. Duhrig, 20 Mo. 174.) As she however was not a party to the suit, she is not concluded by the decree, and has a right, in a suitable proceeding, to contest the truth of the facts on which it is founded. It follows, then, that the instruction given by the court at the instance of the plaintiff was erroneous. Although the sheriff’s deed to How, Claflin & Cook might have passed all of Warren’s interest in the lot, and left him without any, yet that is an outstanding interest not in Collins, and, this being an action of ejectment, he being a plaintiff can not recover on a title in a third person. It is true that the decree postponed this title to that acquired under it, but that decree not being evidence against the defendant, Maria Warren, it can not be used to show any title in Collins as against her.

If the decree in Collins’ suit, the mortgage to How, Claflin & Cook, and the subsequent sheriff’s deed to them, be thrown out of the case, the plaintiff’s right to recover must stand on the deed of Higbee to Collins and Warren. This deed makes them tenants in common of the lot in controversy, and on the death of Warren his widow would be entitled to dower in his interest in the lot; and this being a suit to eject her from the possession of the entire lot, she relies on the dower law in the code of 1845, and defends herself under the sixteenth section thereof, which enacts that until dower be assigned the widow may remain in and enjoy the mansion house of her husband and the messuages or plantation thereto belonging, without being liable to pay any rent for the same. Now, although, under this section, a widow may sue to recover her quarantine when ejected, or may defend herself under it against an action of ejectment by the heir or those claiming under him, yet, under the case as stated, we do not consider the section referred to furnishes her any defence to this action. Two are tenants in common of a house and lot; one of the tenants, who is in possession, dies, leaving a widow; can such widow, under the above cited section, hold the possession of the entire house and lot, freed from the payment of rent, to the exclusion of the surviving tenant ? Could the legislature have intended that the section should apply in such a case, and the widow be entitled to retain the entire house and lot, excluding the cotenant and depriving him of all rent for his property ? Now, whether the widow’s right be a third, a half, or a child’s part, on what principle can the law give her a right to remain in the entire mansion house at the expense of a cotenant, who has a great, if not a greater, interest in it than she has ? It may be competent to the legislature to do such an act by laws operating prospectively, but respect for that department of the government would prevent us from holding the opinion that any such thing was ever contemplated. The law was only designed for the cases where the husband died the sole owner of the mansion house. It must be his and his exclusively. It was never intended that the widow should have her quarantine at the expense of those who are in no ways connected with her.

This, then, being a case in which the widow can not have any quarantine, she stands as she would at common law, when her quarantine had expired. She would be ejected by the heirs, and made to pay damages. But this suit is not by the heir. It goes on the hypothesis that the plaintiff is only entitled to the one undivided half of the house and lot. On what ground, then, can he recover the entire lot and damages for the occupation of the whole of it ? He-could only be entitled to the half of the lot, and damages for that half, going-on the supposition on which the case is now put. Whether Mrs. Warren bad any title or not, the deed from Higbee, on which alone the case now rests, showing that he is only entitled to one half of the lot, he can'recover no more than that quantity, and of course only corresponding damages. (Gray v. Givens, 26 Mo. 291.)

We are of the opinion that in this action the plaintiff can recover one undivided half of the lot and corresponding damages; and this cause is reversed and remanded, as it appears that the judgment is for the entire lot and for full damages.

Reversed and remanded.

The other judges concur.


text:
    January et al., Appellants, v. Powell & Co.’s Assignee, Respondent.
    1. Tliere is nothing in the act concerning voluntary assignments, (R. C. 1855, p. 202,) which authorizes the circuit court, on a motion of a creditor, to direct the assignee to let in such creditor and allow him to prove up his demands against the assigned effects.
    2. If the assignee improperly refuse to allow the creditor to prove his claim, the proper remedy for the creditor to resort to is a writ of mandamus.

      Appeal from St. Louis Circuit Cowrt.

      . This was an application in behalf of D. A: January & Co., E. C. Sloan, and Osborne & Tolle, to the St. Louis circuit court, for an order directing JosialvG. McClellan, assignee of the firm of Powell & Co., to appoint a new day for the hearing and allowance of demands not previously allowed, and to give due notice thereof. The motion set forth that the plaintiffs therein have demands against the late firm of Powell & Co., who assigned all their property and effects to William R. Biddlecome in trust for the benefit of their creditors ; that said Biddlecome appointed the 28th of April, 1859, as the day for hearing demands against the property and effects assigned to him; that, owing to the sickness of said Biddle-come on the said 28th of April, Josiah G. McClellan was substituted as assignee in bis stead; that this substitution took place in the afternoon of said 28th of April, and the said McClellan commenced- hearing claims against the estate and effects assigned, about three o’clock in the afternoon of said day; that owing to a misunderstanding arising out of the sickness of the original assignee, the substitution of another in his stead, and to other causes set forth in the affidavits therewith filed, the demands of the undersigned were not allowed on the day appointed, but all of them were presented on the nest day, when the acting assignee refused to receive them or hear proof of them. The plaintiffs, on the motion, prayed the court to make an order on said McClellan, the present assignee, requiring him to appoint a new day for the hearing and allowance of demands not allowed on the former day, and to give notice thereof to the creditors according to the statute, the costs of such notice to be taxed against the parties in default and to be deducted from the amount of their dividends.
    Affidavits were filed in support of the motion. At the hearing of the motion these affidavits were read and oral testimony was adduced. From all the testimony introduced it appeared in substance that Powell & Co. made the assignment as alleged in the motion ; that notice was given by Mr. Biddlecome as stated; that on the said day appointed, the 28th day of April, 1859, Mr. Biddlecome was too unwell to do business, and about half-past twelve o’clock of that day he resigned his trust and the circuit court immediately appointed said McClellan assignee in his stead; that said McClellan at once qualified, and gave bond, and about the hour of three o’clock P. M., he went to the office of Mr. Biddlecome and commenced hearing proof of demands. There was no one at the office of Mr. Biddlecome to hear claims until Mr. McClellan went there at three o’clock. He remained there hearing claims until about half-past six o’clock. He did not, for want of time, finish hearing claims on that day, but adjourned said hearing until the next day. On the next day he refused to hear proof of any claims that had not been presented the day before. It appeared that Mr. Biddlecome went to his office on said day about half-past eleven o’clock, but went away in a few minutes; that about that time a notice was posted up in the office that the hearing of .claims would be proceeded with at three o’clock P. M. The affidavits also tended to show misunderstandings arising out of the resignation of Mr. Biddlecome and the appointment of McClellan. The court overruled the motion.

      S. A. Bennett, for appellants.
    I. An appeal lies in this case. The circuit court had power to make the order, or whatever order was suitable to accomplish the purpose of letting the petitioners in to prove up their demands. They were entitled to the order as a matter of right. They were misled. The substituted as-signee should have given a new notice. The petitioners did appear at “ the time and place of adjusting and allowing demands against the estate.” (R. C. 1855, p. 206, § 25.) The adjournment to the next day was an extension of time.

      G. P. Strong, for respondent.
    I. Neither the assignee nor the court had the power to extend the time for the presentation of claims beyond the day fixed in the notice. The statute allows but one day for the presentation of demands. Nothing prevented the presentation on the 28th of April except the negligence of the claimants. The new assignee took up the matter precisely where it was left by Mr. Biddlecome. It was his duty to adopt all that his predecessor had properly done.
   Scott, Judge,

delivered the opinion of the court.

This proceeding was begun by a motion to the circuit court to require an assignee in insolvency to hear the claims of certain creditors of the insolvent, which he refused to do.

"We do not see any foundation in the statute concerning assignments for the motion that was made in the circuit court. The matters in which the circuit court can control the assignee are all stated in the statute, and there is no warrant for going further. The assignee is by no means an officer subordinate in all things to the circuit court and a part of that court. It is necessary to preserve the forms of the law. Law can not exist without forms; and without them every thing will depend on the arbitrary will of a judge.

Taking all the circumstances into consideration, the as-signee should have heard the claims. It would have been better if the substituted assignee had given a new notice. As there is no warrant for this proceeding in the law on the subject of assignments, the proper course would have been to apply to the circuit court for a mandamus on the assignee. That writ would have been sustained on general principles.

This judgment will be affirmed, and the course indicated will be at the option of the parties.

Judge Ewing concurs.


text:
    Gibson, Defendant in Error, v. Perry et al., Plaintiffs in Error.
    1. Where premises are leased for a term of years and the lessee agrees to pay rent during such term, and the lessor does not covenant to rebuild, the destruction by fire of the buildings rented will not exempt the lessee from the further payment of rent; he must pay rent for the whole of the term.

      Error to Cooper, Circuit Court.

    The plaintiff by agreement not under seal leased to the defendants a storehouse in the city of Boonville for a term of four years from the 14th of February, 1856. By this agreement the lessees engaged “ to pay rent therefor quarterly, annually, at the rate of four hundred and fifty dollars a year, that is to say, the sum of one hundred and twelve doh lars and fifty cents on the 15th day of May, 1856, and the like sum at the end ’of every three months thereafter during the continuance of this lease.” - This suit was brought .to recover the rent alleged to be due for a quarter ending February 14,1859. The defendants set up in their answer that the quarter’s rent sued for accrued after the destruction by fire of the storehouse rented by them; that after the fire they demanded of the plaintiff that he should rebuild the storehouse or they would abandon and surrender the ruins; that plaintiff refused to rebuild, and defendants tendered and abandoned the ruins to him. The court, on motion of plaintiff, struck out this answer.

      Muir Sf Draffin and Douglass Sf Hayden, for plaintiffs in error.
    I. The court erred in striking out the answer. It set up a good and valid defence. The tenants were not bound to pay rent after the destruction of the house by fire. '

      Adams and Stephens Sf Vest, for defendant in error.
    I. The defendants were bound to pay rent notwithstanding the destruction of the building by fire. The obligation of the defendants was created by their own contract. (See 15 Mo. 469; Ld. Eaym. 1477; Chitty on Contr. 274; 2 Parsons on Contr. 184; 3 Kent, Comm. 467; Smith L. & T. 258; 2 Bouvier’s Inst. 208 ; 1 Bibb, 536 ; 12 B. Monr. 254; Woodf. L. & T. 323.)
   Ewing, Judge,

delivered the opinion of the court.

The law of this case has been long settled, and is supported by reason as well as authority.

The obvious principle, upon which the question has been determined by the adjudged cases, is that of an express covenant on the part of the lessee to pay the rent; that, having by his own contract created a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. (15 Mo. 469.)

In some of the earlier English chancery cases there was some inclination to relieve the lessee from the consequences of this covenant to pay rent where the premises had been destroyed by fire. Among these cases is that of Brown v. Quilter, Ambler 619, which is the only one cited by counsel for the plaintiffs in error. In that case, the circumstance upon which relief was founded was the fact that the lessor had insured the premises and received the insurance money after they were destroyed by fire. But that case, as well as that of Steele v. Wright, cited in Doe v. Standham, 1 T. R. 708, which is said to have been to the same effect, have been long since overruled, and a contrary doctrine has prevailed in the courts of equity, as well as courts of law, both in England and America — namely, that a lessee of premises, which are burned by fire, has no relief on an express covenant to pay rent, either at law nr in equity, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild. (3 Kent, 467.)

The supposed hardship of this and like cases is found to have no real existence when the lease is viewed, as it should be, as a sale of the demised premises for the term for an agreed price. And whenever there is no covenant on the part of the lessor to insure against fire, nor any agreement to repair, the destruction of the property by fire, or any deterioration resulting from that or any other cause, is the misfortune of the lessee; and there is no principle of law or justice that would exonerate him from the charge which he has expressly and unconditionally imposed upon himself. The lessee, in. such cases, has no greater claims for relief than parties to other classes of contracts which, having been deliberately entered into, have, by some unforeseen event or casualty, proved to be unremunerative or disastrous. And the supposed hardship of the case might be urged with equal plausibility as a ground of interference by the courts in almost all cases where, by reason of inevitable accident, one of the contracting parties has not derived the full measure of benefits he promised himself by the transaction. In cases like that under consideration, the same presumption exists and with like force as in other cases of sale of property— namely, that the tenant takes the property subject to every casualty. When the lease is taken, the lessee expressly stipulating to pay rent, he can with no more propriety say he pays the rent unjustly when the premises are destroyed, than he could complain of paying the purchase money of any piece of property of which he might be deprived by accident after buying it and before payment. The cases are analogous. The judgment will be affirmed;

the other judges concurring.


text:
    Gist, Defendant in Error, v. Eubank, Plaintiff in Error.
    1. The act concerning practice in the revised code of 1855 does not authorize a finding of the facts by the court in cases tried by the court without a jury; findings of the facts will therefore be disregarded by the supreme court in cases arising since the revised code of 1855 went into effect.
    2. A petition seeking to enforce a contract concerning land is not rendered defective by reason of an omission to state therein that the contract is in writing; if the defendant rely upon the statute of frauds, he must set it up in his answer as a defence.

      Error to Moniteau Circuit Cowrt.

    Parsons, for plaintiff in error.
    I. The petition does not allege that the contract between plaintiff and defendant was in writing. (22 Mo. 334 ; Statute of Frauds.) It does not allege that plaintiff took possession of the land with the consent of defendant, nor that he made lasting and valuable improvements. There was nothing to take the case out of the statute. (2 Mo. 126 ; 20 Mo. 86.) The finding of the facts does not warrant the judgment.
   Ewing, Judge,

delivered the opinion of the court.

This action was begun under the practice act now in force, which does not authorize the finding of facts by the court, as the act of 1849 did. The finding, therefore, will be disregarded• and, as none of tbe evidence is preserved by the bill of exceptions, the only question for our determination is as to the sufficiency of the petition. In deciding this point, it is unnecessary to consider whether the facts and circumstances alleged in the petition show such a part performance as — supposing the contract not in writing — would be sufficient to take the case out of the statute of frauds and perjuries. Although a petition for the specific performance of a contract respecting real estate omits to state that the contract is in writing, and it does not appear from any of the allegations of the bill that it is not,- yet it will be presumed to be a legal and valid contract until the contrary appear, and the petition will not be demurrable ; and in such case, if the defendant rely upon the statute of frauds, he must make that defence by answer. (Wildbohn v. Robidoux, 11 Mo. 660; Cozine v. Graham and Baker, 1 Paige, 182.)

The petition alleges the purchase of the land in controversy by the plaintiff and defendant Eubanks as partnership property from the defendant Morris, the payment of three of the four hundred dollars of the purchase money out of the partnership funds, and the execution of their joint note to Morris for the balance ; that by a subsequent agreement the three hundred dollars so paid for the land was charged to plaintiffs in the settlement of their partnership affairs, and he became responsible to Morris for the remaining one hundred, and that Morris was to execute a conveyance to plaintiff alone. It is also alleged that the partnership affairs are settled, and that plaintiff has performed his part of the agreement ; but that the defendant Eubanks forbids Morris from executing the conveyance according to the agreement. Whether the contract or agreement was in writing does not appear and as, according to the rules of pleading already stated, it was not necessary that this averment should have been made, the demurrer was properly overruled. It is true some facts are set forth in the petition which, supposing the contract to be in writing, would be mere surplusage, and may have been relied on by the pleader to take the case out of the statute, yet, inasmuch as the contract is set forth without qualification showing whether it is oral or in writing, we are not authorized, against the legal presumption in such cases, to infer it to have been the former, for the reason that the petition contains certain allegations appropriate only to the case of an oral agreement. The other judges concurring, the judgment will be affirmed.


author: NaptoN, Judge,

text:
    Williams, Plaintiff in Error, v. The Christian Female College, Defendant in Error.
    1. In order to establish an agency in behalf of a corporation it is not indispensable to show a written authority or a vote or resolution of the corporate authorities.
    2. When a member of the board of trustees of a corporation, at a session of the board, makes a statement in respect to its action, and such statement is allowed to pass uncontradicted, such statement, although evidence against the board, is not conclusively binding upon it.

      Error to Boone Circuit Court.

    This was an action to recover the sum of $1,487.13 alleged to have been awarded to plaintiff as the value of certain improvements made by plaintiff upon the grounds of the defendant. It was proved that the arbitrators who made the estimate of the value of the improvements were selected by the plaintiff and by Alexander Douglass and C. S. Stone, who were members, it appeared, of the board of trustees of defendant. The evidence relied on to show that the award was made under the authority of the board of trustees, or had their sanction and approval, was the testimony of John H. Field, who stated that “ sometime in 1858, he was authorized by plaintiff to present for payment to the board of trustees of the defendant the award sued on; that in pursuance of such authority he was present at a meeting of said board in the month of February, 1858 ; that at said meeting, and whilst said board was organized and acting officially, he presented said award for payment; that thereupon O. S. Stone, a member of said board, stated to and in the presence and hearing of said board, and whilst officially organized as aforesaid, that he, Stone, Douglass and another, had been appointed a committee by the board of trustees of the defendant for the purpose of settling the claim of plaintiff; that the award had been made under the direction of said committee ; that said award was not unsatisfactory to said committee, and would have been reported on by the committee to the board, but that certain books had been removed from the college; he (Stone) desired to be discharged from said committee and that some other member be appointed in his place; and thereupon several other persons were added to the committee ; that nothing was said about carrying out the award or approving the same by the board; nothing was said about obtaining means to pay the same. I understood these additional members were added for the purpose of adjusting the plaintiff’s claims.”
    The court, at the instance of the plaintiff, gave the following instruction: “ 1. If the award sued on was made under a submission by Stone and Douglass, and if after the making thereof the trustees of defendant, whilst assembled and acting in their official capacity, either tacitly or expressly assented to or ratified said award, the court will find for plaintiff the amount of said award, with six per cent, interest from its date.”
    The following instruction asked by plaintiff was refused : “ 2. The fact that the award sued on was submitted to defendant’s board of trustees whilst assembled and acting in their official capacity, and the declaration of a member of said board then and there made, and not controverted or denied, that the same had been made under a submission by a committee appointed by said board, -of which committee Stone and Douglass were members, is evidence that the submission by Stone and Douglass was under the authority of said board.”

      The court gave the following instruction at the instance of the defendant: “ Before the court can find for the plaintiff, it must be found that there was a submission to arbitration made by plaintiff and defendant, and an award made in pursuance thereof.”
    The plaintiff took a nonsuit, with leave, &c.

      Quitar 8f Gordon, for plaintiff in error.
    I. In order to authorize the submission by Stone and Douglass as the agents of defendant, a vote or resolution entered upon the minutes or record was not necessary. Such an appointment may be implied from acceptance of their services, or from the recognition or confirmation of their acts. (Angelí & Ames on Corp. 220, 221, 270 ; R. C. 1855, p. 371, § 5, 8.) Express authority was not necessary. Such authority may be proved by the declarations of the agent whilst acting in his official capacity. (4 S. & R. 317; 1 Maryl. Ch. 398 ; Angelí & Ames on Corp. 521.) The court erred in refusing the instruction asked.

      Prewitt, for defendant in error.
    I. The second instruction was properly refused. All that was law in it was contained in the first instruction. The facts stated in the second instruction do not, as a matter of law, prove a ratification of the award. (19 Mo. 557; 17 Mo. 145 ; 8 Mo. 260-1.) The evidence given does not warrant the instruction. An authority to settle does not imply an authority to submit to arbitration. How can the silence of the trustees imply a ratification ? A vote was necessary. (R. C. 1855, p. 371; 26 Mo. 104; Angelí & Ames on Corp. § 239, 232 ; 8 Mass. 298 ; 1 Greenl. Ev. § 199.) There was no ratification. A committee was appointed to adjust the very matter that was adjusted if the arbitration was ratified. It is nowhere shown that Stone and Douglass were members of the board. There was no award made ; there was simply an estimate of what the work was worth. (10 Mo. 162.)
   NaptoN, Judge,

delivered tbe opinion of the court.

The only question presented by the record is whether, under the circumstances, the circuit court was warranted in refusing to give the second instruction which the plaintiff asked. The case was tried by the court without a jury. The object of the refused instruction seems to be to procure from the court a declaration of law, that a statement by a member of the board of trustees, made during the session of the board, being allowed to pass uncontradicted, is to be considered as binding the board. This is going further, we think, than the authorities will warrant.

There is no doubt that in order to establish an agency from a corporation, or an authority in a known and recognized agent to do certain acts on behalf of a corporation, it is not indispensable to show a written authority, or vote, or resolution of the corporation. In the present case, however, there was an attempt to prove an authority on the part of the committee to submit the matter in dispute between plaintiff and defendant to arbitration by the mere declaration of one of the committee. This is not like the case of recognized and regular officers, such as cashier of a bank, or secretary of a board, where the corporation has been in the habit of adopting or ratifying every thing done by them in a certain routine of duties. Here is a temporary committee of the board submitting a disputed claim to arbitration, which they say the board referred to them with authority to settle. If the authority to settle implied power to refer to arbitration, still it would seem that in order to make the award binding on the board, the committee must first approve of it and report it to the board as their settlement.. The declaration of Stone, referred to in this case, did not show any final report of the committee, but that the committee failed to take further action by reason of some other difficulty which sprung up.

But it is clear that the declaration of S,tone, or any other individual corporator, made in the presence of the board without contradiction, was not of itself conclusive as a ratification of the board. The mere silence or inaction of the board, under such circumstances, ought not to be regarded as conclusive. The subsequent reference to the same committee, with a change of some of its members, shows that such was not the understanding of the board.

If, then, the object of the instruction was to declare that admissions of one or more trustees were conclusive, the instruction asked was properly refused. But if the object of the instruction was simply to declare that the facts enumerated in it were competent evidence in the case, the refusal to give such an instruction could not be error, as the court, by admitting the evidence, had already declared it competent. The only reasonable interpretation to be placed upon the refusal on the part of the court when discharging the functions of both court and jury, to give such an instruction, would seem to. be that the facts referred to in the instruction, although considered competent evidence, were not regarded by the court as satisfactory to the court sitting as a jury upon the question of ratification. Regarded in either point of view, there was no error in refusing the instruction.

Judgment affirmed;

the other judges concur.


text:
    Wertheimer, Defendant in Error, v. Mayor, Councilmen, and Citizens of Boonville, Plaintiffs in Error.
    1. In cases arising under the ordinances of the city of Boonville in which the fines assessed do not exceed the sum of five dollars, the decision of the mayor is final; it can not be reviewed on appeal or certiorari; nor can a writ of prohibition be resorted to to restrain the collection of the fine

      Error to Cooper Cov/rt of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Stephens Sf Vest, for plaintiff in error.
    I. Fresh fish are not wild game within the meaning of the ordinance.

      II. This is not such a case as will warrant the issuing of a writ of prohibition. We have no statute regulating the remedy by prohibition. .(Seel Chitt. PI. .444.) The suit will not lie to prevent a court from "deciding erroneously, nor from enforcing an erroneous judgment. It can be sustained only for preventing usurpation of judicial power by a court which has no authority to decide the cause in which it assumes the right to act judicially. (See 3 Blade. Comm. 112; Com. Dig. tit. Prohibition; 5 Bac. Abr. Prohibition; 2 Saunders, Prohibition; 2 H. Bl. 533; 3 Bouvier’s Inst. 93 ; Arnold v. Shields, 5 Dana, 20; Washburn v. Phillips, 2 Mete. 296 ; 2 Hill, 36T, 363 ; 7 Wend. -518.) The mayor of Boonville-had jurisdiction in the case in which he was attempting to proceed. He imposed a fine for an alleged violation of a city ordinance. The mayor’s construction of the ordinance may have been erroneous. - He decided the case and exercised jurisdiction. (3 Pet. 206.) The Cooper court of common pleas, having no appellate jurisdiction or control over the mayor’s court and no jurisdiction over the subject matter in controversy, had no right to issue a writ of prohibition. If any court could issue the writ, the circuit court alone could. It could not review the decision on appeal, or in any other way. A superior court can not issue a writ of prohibition unless it possesses jurisdiction over the subject matter in contest. (Bac. .Abr. Prohibition; Reese' v. Lawless, 4 Bibb, 394; 2 Chitt. Pr. 355 ; 19 Louis. 175; 12 Gratt, 17.) The court of common pleas is not a superior court to the mayor’s court. They act in different spheres entirely. No appeal lies from the mayor’s court to the court of common pleas. (See 4 Burr. 2034 ; 2 T. R. 473.)

      Douglass 8f Hayden and Hicks, for defendant in error.
    I. There is nothing in the record .to show that any error has been committed by the court of common pleas. No ordinance is in evidence requiring fish to be sold at the market-house. The judgment will be presumed to be correct. (18 Mo. 256 ; "24 Mo. 522; 16 Mo. 384 9 Mo. 441, 816; 5 Mo. 522.) No question of law is saved. (19 Mo. 43B.) There was no motion for a new trial. (11 Mo. 358, 623 ; 6 Mo. 162.) The court could not take judicial notice of the ordinances. (See 21 Mo. 112 ; 25 Mo. 567; 25 Mo. 580.) But upon the merits there is no error. Fish are wild game within the meaning of the ordinance, if there was any such ordinance. (Bac. Abr. tit. Game; 2 Kent, 348.) The purchase of it at any place other than the market-house was no violation of such ordinance. The mayor assumed a jurisdiction that did not belong to him. The writ of prohibition was properly issued. If fish are wild game, the mayor had no jurisdiction over the act of purchasing. He was properly restrainable by prohibition. (Bac. Abr. tit. Prohibition, p. 206-230; 2 Pet. 449; 1 Cond. Rep. 60; 77 Eng. Com. Law R. 696 ; Bull. N. P, 219 ; Sess. Acts, 1855, p. 75, 76.) The court of common pleas possesses the same powers as the circuit court. The objection to the jurisdiction was not made in the common pleas court and will not be heard here. (24 Mo. 411; 22 Mo. 402; 7 Mo. 211; 13 Mo. 4; 1 Mo. 515 ; 2 Mo. 171; 8 Mo. 59; R. C. 1855, p. 1300, § 33.) Not having filed a plea in bar, it is too late to plead the jurisdiction. (1 Chitt. PL 425 ; 2 Tuck. 254.)
   Scott, Judge,

delivered the opinion of the court.

This proceeding had its source in a writ of prohibition issued by the Cooper court of common pleas to the mayor of the city of Boonville and others, restraining them from collecting a fine imposed on the plaintiff Wertheimer by the said mayor for violating an ordinance of said city. The twenty-eighth section of the act incorporating the city of Boonville (Sess. Acts, 1839, p. 299) provides that the mayor and each justice of the peace within the city shall have jurisdiction of all cases arising under this act and under the ordinances of the city, subject however to an appeal or cer-tiorari, in all cases above the sum of five dollars, to the circuit court of Oooper county ; and such appeals and certiora- ris shall be granted and taken in the'same manner as appeals and writs of certiorari are granted and taken from justices of the peace to the circuit courts. . The act of February 13, 1847 (Sess. Acts, 1847, p. 185) confers on the mayor exclusive original jurisdiction over all cases arising under the act of incorporation and upon all ordinances of the city.

The following are two sections of an ordinance passed by the city of Boonville for the regulation of the markets of said city: “ Sec. 11. Any person who shall purchase during market hours, at any other place in the city than at the market-house, any article required to be sol'd at the market place, shall, upon conviction, forfeit and pay a fine of five dollars. Sec. 22. Nothing in this ordinance shall be so construed as to prevent any farmer or raiser, or any person or firm who packs beef or pork, from selling his meat by the quarter, or from selling his bacon hams, shoulders or sides, or from selling spare ribs or sausage meat in the winter time, nor so'construed as to prohibit the selling of venison or wild game.”

Under these ordinances the plaintiff was fined five dollars for purchasing, out of the market house, during' market hours, fresh fish. He applied for an appeal, which was refused by the mayor, as by the charter an appeal did not lie unless the fine was over five dollars. The plaintiff maintaining that fresh fish was wild game within the meaning of the ordinance, and that therefore the mayor had exceeded his jurisdiction in fining him for purchasing fresh fish, as such articles were expressly excepted from the ordinance, and applied to and obtained from the Cooper court of common pleas a writ of prohibition on the mayor restraining him from collecting the said fine. On this order or judgment a writ of error has been sued out from this court.

Many reasons were urged why the case should not be looked into nor reviewed by this court. This proceeding falls within that class in which the supreme court will reverse a judgment when on the record it appears that there is no legal foundation for the judgment. No bill of exceptions in such cases is necessary. The case may be disposed of as it is presented by the plaintiff himself. We conceive that the court below has arrived at a result that is directly against the law. The charter, in providing that appeals and writs of certiorari should only be allowed in cases where the fine was over five dollars, intended that in cases where the fine was under that sum the judgment should be final. Surely, it did not contemplate that the simple and plain way of correcting the mistakes of a false judgment by appeal should be taken away and a writ of prohibition substituted in its stead. In denying the appeal in such cases, the law in effect declared that the judgment of the mayor should be final. It is competent to the legislature to make such a judgment final, and having done so, it is the duty of the courts to respect their will. This being so, it is unnecessary to determine whether fresh fish is wild game, or whether the mayor exceeded his authority in punishing the plaintiff for purchasing fresh fish out of the market place during market hours. Rut we can not understand how the mayor can be said to have exceeded his jurisdiction. If the fine had exceeded five dollars, it is not denied but that the party might have appealed. This shows that an appeal was the appropriate remedy for correcting the false judgment of the mayor, and the appeal being denied by law shows that the general assembly designed that in this case his judgment should be final. It is hard to conceive how the question of jurisdiction can be made to depend on the fact whether the judgment was right or wrong. The mayor unquestionably had authority to decide whether the ordinance had been violated, and after he has determined it, how can it be said he had no jurisdiction ? According to the argument, the court had to decide the case before its jurisdiction could be ascertained. If it was of opinion in favor of the plaintiff, it had jurisdiction; if of opinion against him, it had none. In the multiplied number of courts of limited jurisdiction in the English system of jurisprudence, whose powers are regulated by custom and prescription, instances may possibly be found which would warrant the application of the refinement indulged in by the plaintiff in the case before us; but none can be found, where the superintending court has interfered, where there was a clear intimation of an act of parliament that the judgment of the inferior should be final.

Judge Ewing concurring,

judgment reversed.


text:
    Klein & Wife, Plaintiffs in Error, v. Laudman & Wife, Defendants in Error.
    1. Though there is a presumption of law that a fact continuous in its nature, such as marriage, continues after its existence is once shown, yet this presumption should not be permitted to overthrow the presumption of law in favor of innocence.
    2. A. and B. as husband and wife sued C. in an action of slander for words spoken. They proved their marriage., Declarations made by the wife of B., to the effect that previous to her marriage to A. she had been married in Germany to another man, were admitted in evidence in favor of C. to show the marriage with A. invalid. Held, that the law, under such circumstances, would presume in favor of the innocence of B. in contracting the second marriage, that the first marriage had been dissolved by death or decree of divorce.
    3. Quere, whether the declarations of the wife would be admissible in such case to prove the former marriage.

      Error to Cooper Court of Common Pleas.

    This was an action by Leonard Klein and Margaret Klein his wife, against Jacob Laudman and Christina Laudman his wife, for slanderous words spoken of and concerning the plaintiff Margaret Klein. The defendants in their answer denied the speaking of the alleged words, and also stated that they had “ no knowledge or information sufficient to enable them to form a belief whether the plaintiffs are husband and wife as alleged.” At the trial the plaintiffs introduced in evidence a certificate of marriage showing that they had intermarried August 19, 1843. The slanderous words were also proven. The defendants introduced in evidence, •against the objections of plaintiffs, declarations made by the plaintiff Margaret Klein, that, previous to her marriage with the plaintiff Leonard Klein, she had been married in Germany to another man. The plaintiffs offered tó prove by parol evidence that said former marriage had been legally annulled and dissolved in Germany previous to the marriage of plaintiffs. The court refused to admit the testimony. The court gave the following instruction at the instance of defendants : “ 1. If the jury find from the evidence that the plaintiff Margaret Klein was married in Germany to another person than Leonard Klein, the plaintiff, then such relation is presumed to continue; and it devolves upon the plaintiffs to prove to the satisfaction of the jury that such marriage was legally terminated before the date of the marriage certificate, read in evidence, or they can not recover.” Other instructions were given and refused. The jury found for defendants.

      Douglass Sf Hayden, for plaintiffs in error.
    I. The evidence of the former mai’riage of Margaret Klein was inadmissible. The pleadings presented no such issue. The answer does not specifically deny the fact that plaintiffs are husband and wife. If there was a misjoinder of parties, the defendants should have resorted to a plea in the nature of a plea in abatement. (1 Leigh, 64; 1 Chitt. PI. 434-48, 742; 1 Bac. Abr. 19; 7 id. 541-548, 595.) It was overruled by pleading to the merits. (Stephen on PI. 477 ; 1 Chitt. PL 426; 13 Mo. 547; 17 Mo. 345.) The evidence of a former marriage took plaintiffs completely by surprise. They came prepared to prove the issues. (See 1 Amor. Lea. Cas. 178; 16 Yerm. 516; Yoorhies’ N. Y. Code, 195; 17 Mo. 360 ; 21 Mo. 432.) The first instruction given for the defendants should have been refused; it is erroneous. If evidence of the former marriage was admissible, then plaintiffs had a right to show by parol that said former marriage had been dissolved by divorce. The court erred in excluding the evidence offered. The judgment or decree of divorce, or a certified copy of it, could not be in the possession or power of plaintiffs. Nor .is that judgment or decree, or a certified copy of it, legally attainable by them. (6 Pet. 352; 9 Mo. 443; 1 Greenl. Ev. § 82; 1 Pet. 591; 7 Pet. 99 ; 3 Monr. 532.) '

      I A. fy J. H. Hening, for defendants in error.
    I. There was no error in admitting the evidence of a previous marriage. The defendants were bound to set up the former marriage in their answer. They could not separately plead the fact in abatement. (10 How. Prac. R. 40,164; 5 Sandf. 210.) The court committed no error in refusing to permit plaintiffs to prove by parol a divorce in Germany. The record of the divorce should have been produced if any existed. (1 Greenl. Ev. § 514, 488 ; 2 Cranch, 238 ; 2 Wend. 411; 6 Wend. 475.)
   Napton, Judge,

delivered the opinion of the court.

We think the first instruction which the court gave, in this case, at the instance of the defendants, was erroneous. There was no presumption that a marriage, which was proved to have existed at one time in Germany, continued to exist here after positive proof of a second marriage de facto here. The presumption of law is, that the conduct of parties is in conformity to law, until the contrary is shown. That a fact, continuous in its nature, will be presumed to continue after its existence is once shown, is a presumption which ought not to be allowed to overthrow another presumption, of equal if not greater force, in favor of innocence. The fact of a marriage in Germany, which was established in this case by the declarations of one of the plaintiffs, was entirely consistent with the validity of the marriage de facto, which, beyond all dispute, existed between the parties here, and after they had produced their marriage certificate, with proof of cohabitation as husband and wife since its date, the presumption was that this marriage was a lawful one, and that the former marriage in Germany, if any such was established, had been dissolved. •

There was not any evidence in this case, so far as the bill of exceptions shows, that the first husband of Mrs. Klein was still living; but if this had been established, we think she was still entitled to the benefit of the favorable presumption that the first marriage had been dissolved by a divorce, and that it was not incumbent on her, in this character of action and under the pleadings in this case, to produce a, record of the judicial or legislative proceedings by which the divorce was effected.

It is not by any means clear that the declaration of the wife in this case ought to have been allowed. The general principles of public policy governing the relation of husband and wife do not permit the character or fortune or any other personal rights of the husband to be affected by such loose declarations of the wife as were in proof in this case. The existence of the wife is merged in that of her husband, so far as responsibility to third persons is concerned; and therefore what she does or says can not in general be' used as evidence against him. There are, undoubtedly, exceptions to this rule, some of them growing out of the conduct of the husband in holding out his wife to the world as his agent, or in permitting her to act in certain respects as a feme sole; some based upon the necessity of the case, or springing from the paramount importance of affording protection to the wife even against the violence or injustice of the husband. But the present is not within any of these exceptions. There are cases of actions brought by husband and wife where the wife is the meritorious cause of action, in which her declarations have been allowed and properly. Thus, in a suit by husband and wife to recover compensation for services of the wife, her admissions of payment have been permitted, because the wife has been allowed to act either on her own account, or as a quasi feme sole, or as an agent of her husband. But such cases furnish no precedent for permitting a wife to criminate both her husband and herself. There can be no implication of any assent of the husband to any such declarations, and therefore no ground upon which they can .be used against him.

But conceding the competency of the declarations of Mrs. Klein, they did not make out any such prima facie case against the plaintiffs as to impose- upon them the burden of producing positive proof of a legal and valid second marriage. We do not undertake to say what effect such testimony might have in a criminal prosecution for bigamy. That was not the case before the court. The suit was one for slander, and the answer of the defendants merely stated their ignorance as to whether the plaintiffs were married or not, and called for proof. That proof was given, prima facie proof' of a valid marriage between the plaintiffs. The defendants then gave in evidence the declarations of the plaintiff, Mrs. Klein, that previous to her marriage with the plaintiff, Leonard Klein, she had been married in Germany to another man.” Surely there was nothing in this circumstance to create a presumption of bigamy. There was no proof that her first husband was living; and if there had been, the woman was still entitled to the charitable presumption that a divorce from her first husband lrad enabled her to marry a second time. But the court directed the jury to presume the invalidity of the second marriage, unless proof positive of a dissolution of the first was produced.

The other judges concurring in reversing the judgment, the case will be remanded.


text:
    Stephens, Defendant in Error, v. Frampton, Plaintiff in Error.
    1. A. and B. were sued on a promissory note. It was not alleged in the petition that A. and B. were partners. B. put in a separate answer alleging that he was not a partner of A., and denying the execution of the note. The note was signed “ A. & Co.” The question whether B. was a partner of A. was submitted to the jury and they found for the plaintiff. Held, that B. was not aggrieved by the omission in the petition of the allegation that A. and B. were partners when the note was executed.
    2. Amendments of pleadings with a view to make them conform to the facts in proof, should be liberally allowed in furtherance of justice where they can not operate as a surprise.

      Error to Cooper Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Muir Sf Draffen, for plaintiff in error.
    I. The plaintiff must recover, if at all, upon the case made in his petition. This petition contains no allegation that defendants were partners when the note was executed. There was no such issue raised by the pleadings. The facts in evidence did not establish a partnership. The instructions given were erroneous.

      Stephens 4* Vest, for defendant in error.
    I. The only issue was as to the partnership. Frampton was a partner of Stephens. No objection was made at the trial to the evidence on the question of partnership. The issue was fairly tried. ■ This court will not interfere. (7 Mo. 218; 18 Mo. 4; 18 Mo. 862; 6 Mo. 489; 9 Mo. 834; 16 Mo. 226; 18 Mo. 435.)
   Scott, Judge,

delivered the opinion of the court.

There was no objection to the instructions, nor was any point made on the rejection or admission of evidence in the court below. The case comes here on a question of variance or a defect in the pleadings. The suit is on a note and is signed “ J. Law Stephens & Co.” Frampton is sued with J. L. Stephens and he puts in a separate answer denying that he executed the note or that he ever was a partner of Stephens. The petition states that defendants, by their promissory note, promised,” &c. As the note is executed in a way that is usual with partners, and as the defendant put in his answer denying the partnership, we can not see how he is aggrieved by the action of the court below. But with all ■ provisions in our code on the subject of amendments, is it not singular that the parties should come here complaining of such a defect as is made the foundation of this writ of error ? An amendment here could not have operated as a surprise; it would have been granted, of course and it is strange that it was not made.

Judgment affirmed ;

the other judges concur.


text:
    The State, Respondent, v. Schricker, Appellant.
    1. The twenty-fifth section of the fourth article of the act regulating practice in criminal cases, (R. C. 1855, p. 1176,) which prescribes that if a defendant be indicted by a wrong name, and he does not declare his true name before pleading, he shall be proceeded against by the name in the indictment; if he allege that another name is his true name, it must be entered on the minutes of the court, and after such entry the trial and all other proceedings shall be had against him by that name, referring also to that name by which he is indicted, &c. — is constitutional.

      Appeal from Moniteau Circuit Court.

    The defendant was indicted by the name of William Shucker. He appeared and pleaded that his name was William Schricker, and prayed to be discharged. The court, at the instance of the circuit attorney, entered the name of William Schricker on the minutes of the court and the trial proceeded against him according to the provisions of the twenty-fifth section of article four of the act regulating practice in criminal cases. He was convicted.

      Gcvrdenhire, for appellant.
    I. The twenty-fifth section of the fourth article of the act concerning criminal practice is unconstitutional. The court erred in putting defendant upon his trial by virtue of its provisions. (See State V. Moore, Walker, 134; Ervine’s Appeal, 16 Penn. State, 256 ; Campbell v. The State, 11 Geo. 353.) It is a violation of the fourteenth clause of the thirteenth article of the constitution of Missouri. If it be constitutional, it subjects every citizen of the state to be put upon his trial for any offence for which an indictment may be pending in his county ; in fact for all of them, if the sheriff should serve writs upon all of them. A sheriff’s service is substituted for an indictment.
    Knott, (attorney general,) for the State.
    I. The section called in question is constitutional. (7 Pet. 247; 8 Verm. 63 ; Ky. Code, p. 269, § 124,172,175, 279, 280; 2 R. C. Indiana, p. 374, § 99, 100 ; Texas Code, p. 96, 94, § 469; State v. Manning, 14 Texas, 405.)
   Scott, Judge,

delivered the opinion of the court.

The defendant was indicted for selling intoxicating liquors without license by the name of William Shucker. He pleaded the misnomer in abatement. Thereupon the court proceeded as directed in the twenty-fifth section of the fourth article of the act regulating criminal practice, which prescribes that, “ if a defendant be indicted by a wrong name, unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment. If he allege that another name is his true name, it must be entered on the minutes of the court; and after such entry, the trial and all other proceedings on the indictment shall be had against him by that name, referring also to the name by which he is indicted, in the same manner in all respects, and with the same consequences, as if he had been indicted by his true name.”

It was maintained for the defendant that the foregoing section is in conflict with the provision of the constitution of the United States and of this state, which protects persons from prosecutions for offences of a certain grade unless by way of indictment. The restrictions imposed by the amendments-to the constitution of the United States operate on the powers of the general government alone. It has been settled that they do not restrain the powers of the state governments. (Barron v. City of Baltimore, 7 Peters, -.)

But we can not see how the provision of the statute under consideration conflicts with the right of individuals to be free from summary prosecutions for indictable offences. The law prosecutes the person of the offender, being satisfied that when the party really guilty is made to suffer there can be no great evil in misnaming him. The idea of the counsel is founded on a misconception of the nature of a plea of misnomer. It does not deny the identity of the person of the offender, but admits that he is the person indicted but by a wrong name. A plea denying the identity of the person would amount to the general issue. We can not see how the party would be affected unconstitutionally if the law had required the plea of misnomer to be disregarded. The taking away the benefit of a plea of misnomer does not increase the danger of unfounded prosecutions. An innocent person can defend himself under a plea of'misnomer but temporarily. If he escapes from one indictment, he may be indicted again by his true name; so that if he is not guilty, the only defence is on the merits. This was so before the statute altered the common law.

Judgment affirmed;

Judge Ewing not sitting.