text:
    The State, Appellant, vs. Kennon, Respondent.
    X. Under the second section of the act concerning “lotteries,” (R. C. 1845,) an indictment which charges the defendant with selling “ tickets in a device in the nature of a lottery, called a raffle,” is sufficient. It is not necessary that the words “ lottery ticket” should be used.

      Appeal from St. Louis Criminal Court.

    The indictment, which was quashed by the court below, is set out in the opinion o£ Judge Ryland.

      H. A. Clover, for the State.

      Cline & Jamison, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The question here involves the sufficiency of the indictment. This indictment is as follows :

“ State of Missouri, county of St. Louis. St. Louis Criminal Court — January term, 1854. The grand jurors, &c., upon their oath present, that Frederick A. Kennon, late, &c., on, &c., at, &c., unlawfully did sell divers, to-wit, ten tickets in a certain device in the nature of a lottery, called a raffle, to certain persons to the jurors aforesaid unknown, for the price and sum of three dollars for each of said tickets, and which said raffle was then and there created for the purpose of disposing of a farm of land, a piano, and divers other property, the description of which is unknown to the jurors,” &o.

The defendant appeared and moved to quash the indictment, because it contains no offence under the statute; 2d, because the statute makes it penal to sell “lottery tickets” in any lottery or device in the nature of a lottery, and the indictment charges the defendant with “ selling tickets” and not “ lottery tickets,” and is therefore defective and void. The Criminal Court sustained the motion, quashed the indictment, and the circuit attorney excepted, and brings the case here by appeal.

The indictment is found upon the following section of the statute of 1845, concerning lotteries :

“ Sec. 2. Any person who shall sell or expose to sale, or cause to be sold, or expose to sale, or shall keep on hand for the purpose of sale, or shall advertise or cause to be advertised for sale, or shall aid or assist, or be in any wise concerned in the sale or exposure to sale of any lottery ticket or tickets, or any share or part of any lottery ticket in any lottery, or device in'the nature of a lottery, within this state, &c., being convicted thereof shall pay,” &c.

The indictment charges the sale of “ tickets in a certain device in the nature of a lottery, called a raffle.” The defendant’s counsel insists that the offence is not properly charged; it consists of the sale of “lottery tickets,” in a device in the nature of a lottery, and not “ tickets” in such device, and for this defect, that the motion to quash was well sustained.

The circuit attorney, on the contrary, maintains that the charge is sufficient, and is properly set forth; that to say “ lottery tickets” in a certain device in the nature of a lottery, would ex vi termini, be absurd; such tickets could be only tickets in a device in the nature of a lottery, and not lottery tickets.

We do not feel disposed to give countenance to nice, critical, verbal distinctions in construing statutes to suppress vice and immorality. Substantial descriptions of the offence making the misdemeanor, in the manner it is created by statute, will answer. Where the proof can sustain the sale of tickets in a lottery, it would be best to charge, nay, necessary to charge the sale to be of “ lottery tickets ;” but where the device is one in the nature of a lottery, it is proper to describe the tickets not as being “ lottery tickets,” which, literally, they are not, but as “tickets in a device in the nature of a lottery.” Whether a raffle be such a device depends upon what constitutes and makes it. Mr. Webster defines the word raffle, when used as a verb, to mean “ to cast dice for a prize, for which each person concerned in the game lays down a stake, or hazards a part of the value, as to raffle for a watch.” Word used as a noun to mean, “ a game of chance, or lottery, in which several persons deposit a part of the value of the thing, in consideration of the chance of gaining it. The successful thrower of the dice takes or sweeps the whole.”

In South Carolina it was held, contrary to the opinions of Judges Nott and Oheves, that a raffle of watches or other articles is not a lottery, in the sense of the act of 1762, and an indictment will not lie under that act. That act is as follows : Whereas, many persons have presumed to set up lotteries under the denomination of sales of houses, lands, plate, jewels, goods, wares, merchandise and other things by chances, which practices are highly prejudicial to the public and to the trade of the province, and tend to defraud his majesty’s subjects ; therefore, be it enacted, that all and every person or persons whatsoever, who, at any time after the passing of this act, shall publicly or privately erect, set up, or expose, to be played, drawn or thrown at, or shall cause or procure to be erected, set up, exposed, to be played, drawn or thrown at, any lottery, under the denomination of sales of houses, lands, plate, jewels, goods, wares, merchandise or other things whatsoever, or for money, or by any undertaking whatsoever, in the nature of a lottery, by way of chances, either by dice, lots, cards, balls, numbers, figures or tickets and, after enumerating other of-fences, concludes with imposing a penalty of £1000 proclamation money. Here the expression, “ any undertaking whatsoever in the nature of a lottery,” appears equally as broad as ours: any lottery or device in the nature of a lottery.” I think the majority of the court in South Carolina were too rigid in their construction of their statute, and that Justices Nott and Cheves held the better opinion.

In our opinion, then, the court erred in quashing this indictment ; its judgment is therefore reversed, and the cause remanded ; and the point, as to whether a raffle be in the meaning of our statute, is left to be raised in the court below upon the facts as they turn out in proof. The other judges concur.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    The State, Appellant, vs. Woodward, Respondent.
    1. See State v. Kennon, ante.
    2. The supreme court will not interfere with the discretion exercised hy an inferior court in quashing one or more had counts in an indictment, although it would not have been hound to quash. In this state, the practice of quashing had counts and allowing good ones to stand, is permitted.

      •Appeal from St. Louis Criminal Court.

    Woodward was indicted under the 2d section of the act concerning “Lotteries.” (R. C. 1845.) The indictment contained four counts. The first count charged that the defendant, on, &c., at, &c., “did unlawfully sell to divers persons unknown to the jurors aforesaid, tickets in a certain device in the nature of a lottery, called a raffle, which said raffle embraced certain books and other property to the value of five hundred dollars, and the value of which tickets was two dollars and fifty cents, against the peace and dignity of the state.”
    The other three counts it is unnecessary to set out, as they were admitted to be bad. A motion to quash was filed by the defendant, which was sustained as to the last throe counts, and overruled as to the first. Subsequently, a motion to quash the first count was sustained. The state excepted, and appealed to this court.
    Clover, (circuit attorney,) for the state,
    that the first count was good, cited 8 Mo. Rep. 612. 3 Denio, 99. 23 Wend. 420. 6 N. H. Rep. 53. 5 Pick. 41.

      Cline & Jamison, for respondent.
    I. The quashing of the 2d, 3d and 4th counts, being unexcepted to by the state, had the effect to quash the entire indictment. (1 Chitt. Crim. Law, 168, 204. 3 Bacon’s Abr. 574. Minor’s Ala. Rep. 28.) II. The first count was bad. 1. A raffle is nota lottery. (2 Const. Rep. 128.) 2. The number of tickets sold, and value of each should have been stated. (King v. Marshall, 2 Kebl. 594. 1 Strange, 497. 5 Coke’s Rep. 35. 2 Ld. Raym. § 900, 1410. 4 Serg. & R. 194. 7 Serg. & R. 469.) 3. The indictment does not follow the language of the statute creating the offence, by charging the defendant with selling l( lottery tickets.” (State v. Byron, 20 Mo. Rep. 1 Bailey, 144. 4 Porter, 410. 3 Penn. 142. 1 Nott & McCord, 91. 3 McCord, 442. 2 Hill’s (S. C.) Rep. 459. 6 Maryland, 263. 81 Maine, 401. 23 Miss. (1 Cushman,) 525. 2 Green, (Iowa,) 162. 3 Grattan, 590. 1 Gill, 54. 1 English, 165.) III. As the count was bad, the court below properly exercised its discretion in quashing it. (4 Com. Dig. 545. Commonwealth v. Clark, 6 Grattan, 675.)
   Ryland, Judge,

delivered the opinion of the court.

The indictment is substantially the same as that against Kennon. The court sustained the first motion of the defendant, made to quash the indictment, so far as to quash the second, third and fourth counts in the indictment, and overruled the said motion as to the first count. The court afterwards sustained a second motion to quash the first count; so the indictment is entirely quashed.

This court has repeatedly said that the courts below were not bound to quash indictments ex debito justitiee, and that the practice had better be abandoned; yet, we will not reverse because the court has quashed a bad indictment, or a bad count in an indictment. We see, really, no serious objection to getting clear of a bad count by quashing it. One good count will support a general verdict of guilty. We have also said that we will not interfere in the discretion of the courts below, in regard to compelling or refusing to compel the circuit attorneys to elect on which counts they will proceed to try the accused.

We are aware of the old practice, and the old cases mentioned in the books, that an indictment is an entire thing, and that to quash or strike out one count, destroys the whole ; but the practice has never prevailed in this state. We make these general remarks, in order that the counsel may see, that, although we consider bis points in this regard o£ no avail, we did not overlook them.

This case will be remanded, and the question as to a raffle being in the meaning of our lottery act, is left open for the decision of the Criminal Court, as the facts may turn out in proof. The other judges concur.


author: Ryland, Judge.

text:
    The State, Respondent, vs. Bean, Appellant.
    1. The statute does not require the name of a prosecutor to be endorsed on an indictment for keeping a bawdy house.

      Appeal from St. Louis Criminal Court.

    William Bean was indicted under the 18th section of article eight of the act concerning crimes and punishments, (R. C. 1845,) for keeping a bawdy house. The indictment charged that the defendant, “ on, &c., at, &c., a certain common house of ill fame unlawfully and wickedly did keep and maintain,” &c. The name of the prosecutor was not endorsed upon the indictment.
    At the trial, one witness was called by the state, the substance of whose evidence was, that the defendant kept a coffee house in one of the lower rooms of a house on Almond street, and that the upper part of the house was occupied by Eliza Jackson and other women of reputed bad character ; and that Eliza Jackson had lived in the same house with the defendant, on the levee, before he removed to Almond street. Eliza Jackson, for the defendant, testified that she rented the upper part of the house from him before he removed there himself, and that he had no control over it, and that the lower part was only occupied by himself and his wife.
    The following instructions, among others, were given by the court:

      “ A house can have no character, good or bad ; the jury -will therefore exclude the testimony upon that question ; but in passing upon the question whether the house above referred to was used for the purposes of a bawdy house, the characters of the inmates and the persons resorting to the same is proper for the consideration of the jury.”
    “If the jury believe from the evidence, that the house in question was rented to the witness, Elizabeth Jackson, and that the defendant had no management of that part of the same where the woman lived, they must acquit.”
    The following instruction, asked by the defendant, was refused :

      ‘' The evidence in regard to the reputation of the house must be excluded as illegal.”
    There was a verdict of guilty.

      Blennerhassett & Shreve, for appellant.
    1. The verdict was manifestly not only against the evidence, but without evidence. 2. The name of the prosecutor should have been endorsed upon the indictment. The requirement of the 22d section of the statute, (R. C. 1845, p. 866,) that the endorsement shall be made in certain cases, does not dispense with the common law requirement in other misdemeanors. 3. The indictment is bad. A common gaming or bawdy house may be indicted, but not a house of ill fame.
    Clover, (circuit attorney,) for the State.
    1. This court will not disturb the verdict as being against the weight of evidence. 2. The name of the prosecutor was not required to be endorsed on the indictment in this case. (Practice and Proceedings in Criminal Cases, art. 3, sec. 23.)
   Ryland, Judge.

There is nothing in the record in this case requiring this court to reverse the judgment of the court below. No prosecutor is, by the statute, required to be endorsed on the indictment in such cases as this, and the indictment is substantially good.

The instructions given embraced the law of the case, and placed it before the jury fairly, l'be instruction which the defendant asked, and which was refused by the court, had already been, in substance, given to the jury. As to the evidence, it was the province of the jury to give to it the weight and credence it in their opinion deserved.

The judgment is affirmed; the other judges concurring.


text:
    The State, Respondent, vs. Bean, Appellant.
    1. A general verdict upon an indictment containing several counts is good, if tlie punishment assessed does not exceed what may he imposed for the offence charged in any good count.
    2. The supreme court will not interfere with the discretion exercised by juries in assessing punishment within the limit of the law, unless it has been manifestly abused.

      Appeal from, St. Louis Criminal Court.

      Blennerhassett & Shreve, for appellant.
    1. A general verdict upon an indictment containing several counts will not stand. (State v. Montague, 2 McCord.) 2. The verdict is beyond the limit of the law. (R. C. 1845, p. 698.)
    Clover, (circuit attorney,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant, Bean, was indicted for keeping and maintaining a bawdy house. The indictment contains two counts. The first count charges the defendant with keeping and maintaining a bawdy house ; the second count is for keeping and maintaining a disorderly house.

The defendant pleaded not guilty. The jury found a general verdict of guilty against the defendant, and assessed his punishment at twelve months’ imprisonment in the county jail and a fine of two hundred and fifty dollars.

The defendant moved in arrest of judgment, and also for a new trial, which being overruled, he brings the ease here by appeal.

The counsel for the defendant below, the appellant in this court, presents but one question for the revision of this court, and that is, can a general verdict be rendered where there are several counts in an indictment ? If such a verdict can be rendered, can this verdict stand ?

There was but little use to trouble this court with such a question as is here proposed. If any question in criminal jurisprudence can be considered settled, this one might, we think, be so looked upon.

It has been settled by the Supreme Court of the United States, ( United States v. Furlong, alias Hobson, 5 Wheat. 1845;) the Supreme Court of New York, (1 Johnson’s Rep. 820 ; 3 Hill, 194 ;) Supreme Court of Indiana, (1 Blackford, 317 ;) Supreme Court of Maine, (8 Greenl. 113 ;) by our own court no longer ago than at July term, 1853, (Jennings v. The State, 18 Mo. Rep. 445;) in Kentucky and in South Carolina; in Illinois ; and, I presume I might have found it so decided by the courts of most of the states of this Union, had I thought the matter worthy of further examination. The of-fence charged in this indictment may well be considered the same transaction — the same criminal matter. It is well charged in the first count, and the facts constituting that charge would support the second count. There is but one punishment, and that does not exceed the amount fixed by law for the offence charged in the first count. True, it is at the maximum of the imprisonment, one year in the county jail, but only half of the maximum of the fine, $250, when it could have been $500. I suppose the triers and punishers of such offences are the best judges of the amount of punishment to be inflicted ; at least our law has made them such, and, unless it is manifest that they have abused their power, this court will not interfere. Let the judgment below be affirmed; the other judges concurring.


text:
    The State, Respondent, vs. Conrad, Appellant.

      l. The supreme court will not, in any case, reverse a judgment of conviction for an assault and battery, because the court below refused to quash the complaint.

      ^Appeal from St. Louis Criminal Court.

      S. A. Holmes, for appellant.

      H. A. Clover, for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant, Conrad, was prosecuted before a justice of the peace for an assault and battery on Dorothea Conrad, was found guilty, and fined fifty dollars. He appealed to the St. Louis Criminal Court, where he made his motion to quash the eomplaint against him. His motion was overruled, and he was again tried and found guilty by a jury, who assessed his punishment at $100.

He brings the case to this court, and assigns for error the refusal of the Criminal Court to quash the complaint made in this case against him.

The judgment below is affirmed. This court will not reverse a judgment in a criminal case because the court below refused to quash the complaint or the indictment. The Criminal Court is not bound to quash an indictment or a complaint of this nature ; and this has been so often said, that really it seems that nothing is to be considered as settled, but every case must, come here and be tried again.

Let the judgment be affirmed : the other judges concurring..


author: Scott, Judge,

text:
    The State, Defendant in Error, vs. McO’Blenis, Plaintiff in Error.
    1. A court has no authority to give a party time until the next term to file a hill of exceptions, without the consent of both parties entered of record.
    2. No execution for costs can issue in a criminal case, while an appeal, with stay of proceedings, is pending.
    3. Where several parties are jointly indicted, each party is only liable for his own costs.
    4. Judgment for costs in a criminal case cannot be remitted by pardon.

      Error to St. Louis Criminal Court.

    At the June term, 1852, of the St. Louis Criminal Court, McO’Blenis and fourteen others were jointly indicted for riot. At the January term, 1853, trial was had, which resulted in the conviction of McO’Blenis, McBride, and five other of the defendants, and a fine for different amounts was assessed against each. The defendants, McO’Blenis and McBride, filed their motion for a new trial, which was overruled, and they prayed an appeal to the Supreme Court. The appeal was granted, with stay of proceedings, and on motion, time was given the defendants until the next term to file their bill of exceptions. At the next term, on the 14th of March, 1853, a bill of exceptions was filed. On the 19th of March, McO’Ble-nis filed the pardon of the governor, releasing him from the payment of the fines and costs assessed in the cause, except the fine assessed against himself, and his pro rata proportion of the costs, and the court made an order setting aside the appeal as to him. At the same time, he filed his motion for a separate taxation of the costs incurred by him. The motion was overruled, and an execution was ordered to issue against him for the fine and all the costs incurred in the cause. On the 17th of December, 1853, a rule was granted by the court upon the state, to show cause why the execution should not be quashed. After a hearing, the rule was discharged, and the defendant filed his bill of exceptions, and brought the case here by writ of error.

      The record also contains the bill of exceptions filed on the 14th of March, 1853, upon which, upon the appeal of McBride, the judgment of the Criminal Court was reversed by the Supreme Court. (19 Mo. Rep. 239.)

      U. Wright and Barrets, for plaintiff in error.
    1. The appeal granted at the January term of the Criminal Court, suspended the execution of the judgment. 2. The order setting aside the appeal was void, as, after the appeal was granted, the Supreme Court alone had jurisdiction of the cause. 3. The judgment having been reversed by the Supreme Court, there was nothing upon which execution could issue.. 4. If it be said that the reversal only operated upon the judgment as to McBride, then it is submitted that the whole record is now here by writ of error, showing on its face that the judgment is erroneous as to McO’Blenis for the same reasons for which it was reversed as to McBride.
    Clover, (circuit attorney,) for the State.
   Scott, Judge,

delivered the opinion of the court.

1. The records present us with two cases for our revision. The one contains the original case against O’Blenis on an indictment for a riot, and the other, a case growing out of the first, on a motion to retax the costs.

We will notice these in their order. When the appeal was granted to O’Blenis, on the 26th of February, 1853, and a stay of proceedings ordered, that the opinion of the Supreme Court might be taken, it appears that on motion, time was given him till the next term of the court to file his bill of exceptions. We consider that the court had no authority to make this order, without the consent of both parties entered of record. Unless a bill of exceptions is signed during the term at which a cause is tried, it cannot be filed subsequently, without the consent of both parties to the suit. The bill of exceptions not having been taken within the proper time, it cannot be noticed ; and as the error relied on for a reversal of the judgment appears only ontbe face of tbe bill, there is no error in the record of the first trial of which O’Blenis can now avail himself. This point was not made in the case of McBride, who was jointly convicted with O’Blenis for the riot, and whose case was afterwards in this court. This much as to the first case.

2. As to the second, from what has been said, it would appear that the cause out of which the execution for costs had its origin, was pending in the Supreme Court, when the writ issued; for the appeal and order of suspension stayed the proceedings until the appeal was disposed of in the Supreme Court. The want of a bill of exceptions did not impair the effect of the appeal in stopping the proceedings of the court below, but would only render it unavailable on the trial, as there would be no evidence of any error in the record of the inferior court.

This, then, will reverse the judgment below on the motion to quash the execution for costs, but in order that a final disposition may be made of the cause in the court below, an opinion will be given respecting the question of costs.

3. We cannot see the principle on which one defendant in an indictment is liable for the costs of the other defendants, who may be jointly indicted with him, whether they are acquitted or convicted. A defendant may call fifty witnesses, who are not wanted by another defendant jointly indicted with him, and is acquitted. Shall the other defendant who may be convicted pay the costs of all these witnesses ? There is no privity between offenders, as in the case of joint contractors, which mates one liable for the costs of the others.

At common law, the state neither recovered nor paid costs in criminal cases. Bach party was liable for his or her own expenses. In a civil action against several defendants for a joint wrong, there was but one judgment for costs, and that might be collected from any one of them, and he would not be entitled to contribution from the others. But, in such case, there could be but one trial, and the object of the suit is the reparation of the injury done to the plaintiff, not the reformation of the defendants. Public prosecutions are carried on for a different purpose. The reformation of the offender is one of the motives of prosecutions for offences. Justice, therefore, requires that each delinquent should be liable for his own offences, and that he should not be liable for the costs of prosecuting or defending others. There is nothing in any statute that we have seen,that makes an offender liable for any other than the costs which may have been incurred by him, or on his account.

The statute, section 15, article 4, p. 869, (R. C. 1845,) enacts that, “where two or more persons are charged with having committed an offence jointly, all concerned shall be included in one indictment.” The 23d section of article 6, p. 881, enacts that, “in cases other than felonies, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court.” The law never designed that the payment of costs should be at the discretion of the judge, as to whether he would have a joint or separate trial of the offenders. It did not design that, where the judge ordered a separate trial, the costs should be separate, and that when the trial was joint, the costs should be joint. It was intended to have but one rule in the matter, and that was the rule of justice and equity, that each defendant should be liable for his own costs. Several defendants may be joined in one indictment; some may take a change of venue to one county, some to another, and they may all be acquitted ; but one who has not changed the venue, shall this one be liable for all the costs of all these trials ? So, a defendant may be joined with several others in an indictment. He may object to a separate trial, yet each of the others, against his will, may obtain one, and the party objecting is af-terwards alone convicted: shall he pay the costs of all the trials ? The only answer to this is, the inconvenience or difficulty of apportioning the costs among the -different offenders. We do not consider this any answer. It is very easy to keep an account of the services rendered for each defendant, and some of the charges would necessarily be common to all of them. Here are some fifteen men indicted for an offence ; they are all acquitted or discharged, after a short term of imprisonment, but one, and be, under the construction of the law contended for, would be made liable for all the costs, amounting to a thousand dollars. This never could have been contemplated by the general assembly. The costs in such cases must be apportioned in an equitable way. Nor is it any objection to this view of the subject, that this indictment is for an offence in which a number must participate in order to make it, and therefore that they must necessarily be jointly indicted. The law designed that there should be but one rule for the taxing of costs in all criminal. cases, where there were several indicted together, and that was that each should be liable for his own costs ; and it would be strange that, because the clerk has failed to keep his account of fees in such way as to show this, that therefore all the costs should be taxed against one.

4. As to the matter of the pardon, it is evident that, after a judgment for costs, they cannot be remitted by pardon. Costs fc¡r which judgment has been given, are not remitted by a pardon of the offence, subsequent to the judgment, because there was an interest vested in private persons. (Cro. Car. 9 and 199. Duncan v. Commonwealth, 4 S. & Raw. 451. Playford v. The Commonwealth, 4 Barr, 144.)

In accordance with the views herein expressed, the judgment against O’Blenis for the riot will be affirmed, and the judgment on the motion to quash the execution for costs will be reversed, as the execution issued pending the appeal in this court. The other judges concur.


author: Leonard, Judge,

text:
    Halbert, Appellant, vs. Halbert & others, Respondents.
    1. What were the terms of a parol transfer of a slave, is a question of fact for the jury, from all that was said and done, and not a question of law for the court.
    2. A condition annexed to a gift qf a slave, that the donee shall have children horn, is valid; and upon failure of the condition, the slave will revert to the donor.

      Appeal from Crawford Circuit Court.

    This was an action brought by James Halbert, in 1852, to recover a slave claimed by the defendants as belonging to the estate of Nathan Halbert, their intestate.
    At the trial, it appeared in evidence that Nathan Halbert was a son of the plaintiff, and that the slave was given to him by his father, and remained in his possession up to the time of his death, some ten or fifteen years afterwards. There was no writing evidencing the terms of the gift; but William J. Allen, a witness for the plaintiff, testified that the plaintiff, upon the marriage of his children, put in their possession a slave, “ which was to be theirs upon the condition that they should have issue,” and he had often heard Nathan Halbert, in his life time, say that this was the way he held the slave in controversy. Nathan Halbert never had any children. Several witnesses testified that he always recognized the slave as the property of his father, and refused to sell him for that reason, and frequently complained that his father had not done right by him, in not giving him an absolute right to the slave.
    At the close of the plaintiff’s case, the court instructed the jury that he could not recover, holding, as a matter of law upon the evidence, that there was an absolute gift, and a remainder over, and that this remainder was void.

      C. Jones, for appellant,
    in his brief, insisted that the court erred in taking the whole case from the jury.

      M. Frissell, for respondent.
    The gift was absolute and the condition void. (Betty v. Moore, 1 Dana, 285. Fearne on Remainders, 460, 463. Wilson v. Cockrill, 8 Mo. o.)
   Leonard, Judge,

delivered the opinion of the court.

In Wilson v. Cockrill, (8 Mo. Rep. 1,) and again in Vaughn v. Guy, (17 Mo. Rep. 429,) this court decided that, after a grant of a personal chattel to one, a limitation over to another, upon the death of the first taker, was void, and that the absolute property was in the first grantee. There are two grounds upon which these decisions may be placed ; one, that the limitation over, being upon a dying without issue, which has been construed to mean an indefinite failure of issue — a want of descendants, at any time, sooner or later, whenever it should occur, and not a want of them at the death of the first taker, or at any other definite point of time — the effect of it, if applied to real property, would have been to create an estate tail by necessary implication; and, therefore, being here applied to personalty, carried the whole interest, according to the rule that terms, which, if applied to real property, would give an estate tail, pass the absolute interest in personal property, and left nothing in the grantor upon which the limitation over could take effect; (Anderson v. Jackson, 16 Johns. 381, and cases there referred to;) and, second, that, although such future interests in personal chattels, if limited to spring up within a proper period of time, so as not to violate the rules against perpetuities, are valid at law, when created by will, as execu-tory bequests, and good in equity as equitable estates through declarations of trust, yet they are not allowed at common law in the disposition of personal chattels by conveyances inter vivos. (Chitty’s Black. 2 B. 398.) If the dying without issue meant an indefinite failure of issue, the limitation over was void, in a conveyance of real property, because the effect of a limitation over upon such an event was to create an estate tail, by necessary implication, in the first taker ; and then the future interest that was to arise upon the regular expiration of the estate was void, as tending to a perpetuity ; and in a conveyance of personal property, the limitation over was void, because the same words, instead of creating an estate tail, that could not be in such property, passed the absolute interest, leaving no reversion in the grantor out of which the future estate could take effect. But if it meant a definite failure of issue, as for instance, at the death of the first taker, the limitation over, although good as an executory use, in a conveyance of real property operating under the statute of uses, was void in a transfer inter vivos of a mere personal chattel, as an attempt to create in this manner a future interest at law in such property.

It may be observed here, that limitations of future interests in chattels, both real and personal, came originally out of the courts of equity, where they were first recognized as lawful limitations of property. Lord Hardwicke, in 1742, remarked, (Beauclerk v. Dormer, 2 Atk. 312,) “the first case of an executory devise (of terms for years) was Mathew Manning, 8 Co. 95 ; afterwards came Lampet’s case, 10 Co. 46, b, and several others, which were all on terms for years, and partook of the realty, but the judges had no notion of extending it to a personalty. Courts of equity have gone further still, and have admitted of the like limitations in personal as in chattels real and afterwards, in 1757, Lord Mansfield, ( Wright v. Cartwright, 1 Burr. 282,) arguing in favor of allowing the same limitations of terms for years by deed that were lawful by testamentary disposition, said : When they came to be allowed by will, or by declaration of trust, the substantial reason was the same for allowing them by deed.” In the progress of the law, bequests of mere personal chattels have now become valid as legal dispositions of property, (10 Johns. Rep. 12 ;) and the remark of Lord Mansfield might now, perhaps, he repeated in favor of allowing future interests in personal chattels to he created by deed as well as by will, but the remark is not called for by the present case.

In the two cases decided in this court, to which we have referred, the grants were in writing, and the meaning of the terms used fixed by judicial interpretation, and there were express limitations over to third persons; but here, there is no writing, and no express limitation over to another, or express reservation to the grantor. Those decisions, therefore, do not settle this case ; but in the case of Betty v. Moore, (1 Dana, 235,) there was no written grant, but an express reservation to the grantor, if the donee died without having children; and it was there held that the gift was absolute, passing the whole property, and the reservation void; and it was probably upon the authority of this decision, that this case was decided in the court below. What the terms of this grant were, we think, was a question for the jury, and not a matter of law for the court; but, assuming them to have been as stated by Mr. Allen, the most favorable witness for the defendants, we do not think they were such as would have created an estate tail, if applied to real property, and, therefore, passed the whole interest here, under the rule to which we have referred. If the grant had been in writing, and an express provision inserted in the language of the witness, “ that the slave should be the son’s, upon condition that he had issue,” the question would have been, whether these terms would have created an estate tail, in a conveyance of real property, and this question carries us back to the now obsolete doctrines of the common law, in relation to fees conditional, before the statute of entails. Blackstone (2 Book, 87,) defines them to be fees restrained to some particular heirs to the exclusion of others and Powell, Justice, in Idle v. Cook, (1 P. Will. 74,) says : “A fee tail was a fee simple at common law ; for there were three sorts of fees simple — absolute—qualified, which was as to time only, set., as long as such a tree stood, and also fee simple conditional, which was limited as to the heirs inheritable, for it was not a fee accruing upon the performance of a condition.” In reference to the words necessary to create this fee conditional of the common law, we are told (Black. Com. 2 Book,) that, as the word heirs is necessary to create a fee, so the word body, or some other word of procreation is necessary to make it a fee tail.” But Preston on Estates, (2 vol. 484,) says : “As far as relates to deeds, the word heirs must be used either in terms or by reference and adoption; but the precise words “of the body” are not necessary ; and there is one class of cases where an estate tail will arise by necessary implication, without the use of the word heirs, contrary to the general rule, and this is where there is a gift to one without any limitation to his heirs, but with a provision that the land shall revert to the donor, or remain to another, if the donee shall happen to die without heirs of his body. This consequence proceeds from the expression of the time when the land comprised in the grant shall revert or go over, from which it is necessarily concluded to be the intention of the parties that the donee shall have the land in the mean time, (2 Preston on Estates, 474-5, 486-7;) and, therefore, according to Eleta, a limitation to a donee and his heirs, if he shall have heirs of his body, without any reservation or limitation over upon a failure of issue, will give a fee on condition and not a limited fee, properly denominated an estate tail, and (Preston on Estates, 2 vol. 503,) says there is no case in which a limitation in this form has been adjudged an estate tail, nor any determination to the contrary. In Roper on Legacies, (2 vol. 1525-6,) it is said that “it is a settled rule of construction, proved by a numerous class of cases, that, where estates of inheritance are devised to A., and if he dies without heirs of his body, or without' issue, to B., A. takes an estate tail by necessary implication. The rule is the same in bequests of chattels real and other personal estate ; for A., the legatee, being entitled by the express bequest for life only, and B., the legatee over, being entitled to nothing, upon the single event of A.’s death, but upon that event coupled with the general failure of A.’s issue, if A. were not considered as taking immediately for himself and his issue, the interest between his death and the event upon which B. could take, would be undisposed of ; therefore, as the words are large enough, the court implies an intention in the testator to transmit the legacy to A.’s issue; but as chattels cannot be entailed, the absolute interest in them, ex necessitate, must vest in B. ” (Brooks v. Lord Lake, 10 Jur. 485.) And this is the reason of the general rule, adopted at first in the construction of wills, that, whenever the words used in a disposition of personal property would, if applied to real property, give an estate tail, they pass an absolute interest in personalty. (Lyon v. Mitchell and others, 1 Mad. 256.)

There being therefore here, according to the testimony of Mr. Allen, no express reservation or limitation over, upon the son’s dying without issue, in which this is distinguished from the Kentucky case, but the terms used being that the slave should be the son’s, upon condition that he had no issue, instead of creating an estate tail, they create a conditional gift to the son, to become absolute if a child should be born to him, but to cease if he should have no children; and the grantor is, of course, entitled to the benefit of the condition, although it could not have been reserved or transferred to a stranger. It seems hardly necessary to remark upon this subject, that a condition is a clause providing that an estate shall be created, enlarged, diminished or defeated in a given event; that it may be annexed to any species of estate — to an estate in fee, in tail, for life, or for years — and that the benefit of it can only be reserved to the grantor and his heirs, who, upon a breach of the condition, become entitled to the estate to which it was annexed. (Cruise Dig. tit. 13, chap. 1 and 2.)

If, however, instead of confining ourselves to the testimony of Mr. Allen, we look at the whole matter, it is very manifest, we think, that if it were a conditional, instead of an absolute gift, about which, we, of course, express no opinion, the father had no reference to an indefinite failure of issue on the part of his son, but intended what he said, that if his son had children, if any were born to him, the slave should be his absolutely; otherwise, it should return to the father. Even where there is an express limitation over upon a dying without issue, in a written disposition of personal property, the courts have laid hold of very slight circumstances to confine the generality of the words to the time of the death of the donee. In Keely v. Fowler, (6 Brown P. C. 309,) Chief Justice Wilmot said, in relation to this matter: The truth is, we are bound to an artificial and technical sense of those words, unless there is an apparent intention in the testator of using them in their natural meaning and Buller, Justice, in Doe v. Lyde, (1 Term Rep. 593,) quoting this remark, said : “ And for that purpose, which is in favor of common sense, the most trifling circumstance is sufficient.” As in the present case, the gift was not in writing, the terms of it are to be inferred from all that was said and done upon the occasion, and not exclusively from any particular expression used, and, under such circumstances, no artificial meaning can be put upon a verbal reservation or limitation, contrary to the real intent of the party. The question is, what was the intention of the giver ? Did he intend that the slave should be his son’s absolutely, if he had children born to him? If so, this was a lawful limitation of the property, and it belonged to the son or the father, according to the event: or did be intend to make a disposition that the law would not allow of, by providing that it should go in succession, like an inheritance, to his son, and to his son’s children, and to their children, as long as there should be descendants to take, and return to him only upon a total failure of the Son’s descendants, sooner or later, whenever that event should occur? If so, that intention cannot prevail, and the property vests at once absolutely in the son, and the reservation over is void.

The testimony, however, we may remark, does not warrant the imputation of any such intention to the father, and, indeed, it would require very decisive evidence to justify a jury in imputing such a purpose to a giver, as the law will not allow it to be executed, if it be in fact entertained.

The Circuit Court, we think, erred not only in the conclusion to which they came, as to the legal effect of the transaction, whether we take Mr. Allen’s account of it, or look to all the evidence in the cause ; but it erred, also, in withdrawing the case from the jury, and determining the whole matter, both law and fact. The terms of the gift was a matter of fact, to be ascertained by the jury, and not a question of law for the judgment of the court. The interpretation of written contracts is for the court; but where the matter rests in words, and the intention of the parties is to be ascertained from what they have said and done, it is a question for a jury. (Festerman v. Parker, 10 Iredell’s Law Rep. 477. Fowle v. Bigelow, 10 Mass. 392.) If the father, in this instance, had made a written disposition of the slave, it would have been the duty of the court to have ascertained his intentions from the words used, according to the rules of law applicable to the interpretation of written instruments. The purpose of parties in reducing transaction's to writing being, that the very wordg used may stand as the exclusive evidence of their whole intention. Here, however, there being no writing, and the intention being left to be ascertained by the words used, and the things done, it was a question for the jury ; but when ascertained, it was then for the court to declare hypothetically the legal effect of the transaction.

We conclude by remarking that the questions involved in the case are, whether the transaction was a loan, to be resumed at the pleasure of the father, or a gift; and if it were a gift, whether it was absolute or qualified; and, if qualified, what was the qualification annexed to it? Was it a condition that the slave should be the son’s, if he had children born to him ; or was it a provision to transmit the slave to the son’s descendants, as long as there should be descendants, and to secure a return of the slave to the giver upon a failure of descendants, whenever that event should occur ? We have already remarked that, if it were the former, it was a lawful purpose, and must prevail; if the latter were the intention of the father, the law will not carry it into execution, but makes the grant take effect as an absolute, immediate gift of the whole property to the son.

The other judges concurring, the judgment is reversed, and the cause remanded for further proceeding, in conformity with this opinion.


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    Riley’s Administrator, Plaintiff in Error, vs. McCord’s Administrator, Defendant in Error.
    1. The lien of a mortgage is not merged in a judgment obtained in a proceeding under the statute to foreclose.
    2. After the death of the mortgagor or mortgagee, before or after judgment of foreclosure, the proceeding may, under the statute, be continued in the name of the personal representative, without the heir.

      Error to Callaway Circuit Court.

      Scire facias sued out by the administrator of the mortgagee in 1854, to revive a judgment of foreclosure rendered in 1848, and to compel the administrator of the mortgagor to show cause why the mortgaged land should not be sold to satisfy the judgment. '

      The scire facias recited that both the mortgagor and mortgagee had died since the rendition of the judgment, and that the mortgagor had parted with all his interest in the land before his death. The writ was demurred to,'and two causes of demurrer assigned, 1st, that the heirs of the mortgagor and mortgagee were not made parties, and 2d, that the lien of the judgment had expired, and could not be revived against the personal representative. The Circuit Court sustained the demurrer.

      Morrow, Jones and H. C. Hayden, for plaintiff in error.
    1. The personal representatives were the proper parties. (4th, 8th and 17th sections of the act concerning “Mortgages/’ R. C. 1845.) 2. The demurrer cannot be sustained on the ground that the lien of the judgment had expired. The mortgage passed an interest in the land. It still remained a specific lien, and could only be discharged by a payment or release. (31 Maine Rep. 246. 3 Penn. 368. 4 Wharton, 410. 3 Marshall, 621. 3 Littell, 50, 51. 1 Alabama, (N. S.) 23. 3 A. K. Marsh. 618. 12 Mass. 379.) The only way in which the mortgage could be enforced was by a judgment of foreclosure, and it is a solecism in law to say that the very remedy provided for the enforcement of a right operates to decrease, divest or extinguish it. Even if this had been a proceeding to revive a general judgment lien, the time had not expired. (R. 0. 1845, tit. Judgments and Decrees, § 7.)

      Hardin and Gardenhire, for defendant in error.
    1. The administrators were not the proper parties. (R. 0. 1845, tit. Judgments and Decrees, § 13, 14 ; tit. Mortgages, § 10, 11, 13. Practice act of 1849, art. 3, § 1, 7.) If the mortgagor was divested of all interest in the land in his lifetime, those who acquired his interest should have been made parties. 2. The scire facias was sued out after the lien of the judgment bad expired. By the statute, the lien continues three years. A scire facias may be sued out within ten years, and not af-terwards. But the lien must be kept alive, and if it is allowed to expire, no scire facias can afterwards be sued out, or if it can, can only have the effect to create a new lien and not to continue the old one. 3.- The lien of the mortgage was merged in the judgment of foreclosure. (1 Barb. Sup. Ct. Rep. 379, 388.)
   Scott, Judge,

delivered the opinion of the court.

1. The question in this case is, whether the lien of a mortgage is merged in a judgment obtained in a proceeding under the statute to foreclose the mortgage. If the lien of the mortgage is extinguished by the judgment, the mortgagee is in a dangerous situation, such a one as would induce many mortgagees to forego the remedy provided by the statute; for the mortgage lien being extinguished by the lien of the judgment, obtained in the suit for a foreclosure, and the lien of the judgment taking effect from its rendition, if judgments should have been previously rendered against the mortgagor in favor of others, though subsequent in date to the mortgage, those subsequent judgment creditors would obtain a preference over a prior mortgage, though duly recorded. So proceedings for a foreclosure, under the statute, may be begun where any part of the mortgaged premises are situated. Mortgaged lands may be in several counties. The lien of a judgment is only operative in the county in which it is rendered, so that, in such cases, the mortgage lien will be destroyed. It is the just expectation of the creditor that, when he takes a mortgage, he has a security which lasts until the mortgage debt is paid. This is a reasonable expectation, and it should not be defeated, unless the law plainly requires it. The statute concerning mortgages was designed within itself to afford the mortgagee the means of enforcing the payment of his debt. There is no reason why the mortgagee, in resorting to the statutory remedy, should have his security, if not entirely extinguished, at least very much impaired. We should be loth to adopt such a construction, was there nothing but the general laws concerning judgments and administrations. But the legislature, it seems to us, never contemplated that the security of the mortgagee should be lost to him by a resort to the statutory mode of foreclosure.

The 4th and 17th sections of the act concerning mortgages, show that the legislature intended that the proceedings to foreclose a mortgage should not be arrested by the death of the mortgagor. When a judgment is obtained, the enforcement of that judgment is not suspended, as in ordinary cases, by the death of the debtor. The last clause in the 17th section of the act shows this very plainly. The 4th, in allowing the proceedings to be begun against an administrator of the mortgagor or debtor, indicates that it was designed that the process should continue, uninfluenced by any of the provisions of the administration law. Why suffer proceedings to be commenced in that way, when no other result is to be produced than would have resulted from a mere allowance of the demand ?

The process to foreclose the mortgage going on as though the mortgagor had not died, none of the provisions of the statute concerning the administration of estates, which restrain the issuing of an execution against property in the hands of an administrator, have any effect in such case. The mortgage being a lien, created by express contract between the parties, the law does not interfere and control it, as in case of liens created by a mere operation of its own. The case standing unaffected by the administration law, it must be viewed as though it was between the original parties to the mortgage. Assuming then, that three years had expired after the rendition of the judgment, in the proceedings to foreclose the mortgage, whatever effect such efflux of time might have had upon the mere lien of the judgment, if any such thing existed, if the lion of the mortgage continued until it was satisfied, as we have maintained, such efflux could not have affected such lien. Why should it ? The mortgage was recorded. It was unsatisfied. No presumption of payment would arise until after the lapse of twenty years. The judgment itself, although by our statute it ceases to be a lien after three years, is not presumed to be satisfied until after the expiration of twenty years from its rendition. Because a judgment has been rendered to foreclose a mortgage, why should the mortgagee be deprived of the security of the mortgage after three years, when the law only presumes the mortgage or lien of a judgment discharged after twenty years. The judgment on the proceedings for a foreclosure would have shown that it was founded on a recorded mortgage. It would have appeared that the judgment itself was unsatisfied-. How, then, could any one have sustained any injury by reason of the want of notice ?

Another view may be taken of this subject. A mortgage creates a lien. It is not a mere lien. It is something more. It is an estate in the land, conditional, it is true; but the condition is, that it shall endure until the debt is satisfied. Why should a judgment unsatisfied destroy this estate against the express stipulation of the parties ?

The act concerning mortgages, sections 4 and 17, shows that the personal representative, meaning the executor or administrator, is a sufficient party for all purposes under this statute.

Judgment reversed, and cause remanded,

Judge Ryland concurring ; Judge Leonard not sitting.


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    Walker, Respondent, vs. Borland & others, Appellants.
    1. In an action of trespass for selling property of the plaintiff under execution against another, the measure of damages, in the absence of any aggravating circumstances, is the value of the property at the time of the trespass and interest to the trial.

      Appeal from Jasper Circuit Court.

    Trespass for the seizure and sale under an execution against James Walker, of a horse, some cows, calves and other cattle belonging to the plaintiff. The. defendants were Nancy Bor-land, the plaintiff in the execution, and her securities in a bond given to indemnify the sheriff for selling after a sheriff’s jury had found the property to belong to the plaintiff. There was a judgment by default for want of an answer, and a writ of inquiry ordered. At the execution of the writ, the plaintiff was allowed to show the present value of the cattle, taking into consideration their growth and rise in value, and the court instructed the jury as follows :
    “ The criterion of damages in the above case is not the value of the property at the time of seizure and sale, but the jury may allow plaintiff damages for the natural growth of the prop - erty since the sale, together with its value at that time.”
    ‘ ‘ The jury may assess damages in this case to compensate plaintiff for all the damages which he has sustained by reason of the seizure and sale of the property.”
    An instruction asked by the defendants that the measure of damages was the value of the property at the time of the seizure by the sheriff, with interest to the trial, was refused.
    The defendants appealed from the judgment for the damages assessed under this ruling.
    Edwards, for appellant.
    Wright, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The only point made before us in argument is in reference to the measure of damages, and in this we think the court erred. It is desirable to have as definite and precise rules upon this subject as possible, and a proper administration of justice requires that these rules should be strictly adhered to. It is in vain that the legal rights of the parties are settled by the courts if the amount of compensation for violations of these rights is left to the arbitrary discretion of a jury, and hence it is both the policy and tendency of our law to reduce the measure of damages, in all cases where it is practicable, to fixed legal rules, and to enforce a rigid adherence to them.

“ Damages,” Lord Coke (Co. Lit. 257, a) tells us, “hath a special signification for the recompense that is given by the jury to the plaintiff for the wrong the defendant hath done him.” These damages, however, are sometimes vindictive, as well as compensatory. But compensation for the actual loss sustained is the professed object of the law, except where there has been fraud, oppression, malice, or gross negligence ; and in these cases, a different rule is adopted, and the jury are allowed to award exemplary damages, not only to compensate the sufferer, but also to punish the offender. (Sedgwick on Damages, 2 ed., 38, 57.)

The most favorable measure of damages for the plaintiff, on account of the wrong here complained of, and that to which, we think, he is entitled, is that which would have been applicable, had the action been against the execution plaintiff for the alleged seizure and sale of the property — trespass de bonis as-portatis ; and, in that event, there being no aggravating circumstances in the transaction, the damages would have been confined to the actual loss sustained — the value of the property and interest, allowing nothing for the profits the party might have made by raising the stock. It is said by Sedgwick (Law of Damages, 69,) that both the English and American courts have generally concurred in denying profits as any part of the damages to be compensated, and that, whether in cases of contract or tort.”

In Conrad, against The Pacific Ins. Co. (6 Pet. (U. S.) Rep. 268,) which was trespass against a marshal for seizing and selling the property of the plaintiff under an execution against another, the instructions given by the Circuit Court to the jury, as to the measure of damages, were approved by the Supreme Court of the United States upon a writ of error, and we extract a part of the charge relating to this matter. " Where a trespass is committed in a wanton, rude and aggravated manner, indicating malice or a desire to injure, a jury ought to be liberal in compensating the party injured in all he has lost in property, in expenses for the recovery of his rights, in feeling or reputation, and even this may be exceeded by setting a public example to prevent a repetition of the act. In such cases, there is no certain, fixed standard, for the jury may not only take into view what is due to the party complaining, but to the public, by inflicting what are called in law speculative, exemplary or vindictive damages. But when an individual, acting in pursuance of what he conceives a just claim to property, proceeds, by legal process, to enforce it, and causes a levy to be made on what is claimed by another, without abusing or perverting its true object, there is, and ought to be a very different rule, if, after a due course of legal investigation, his case is not well founded.” “ The general rule of damage is the value of the property taken, with interest from the time of the taking down to the trial. This is generally considered as the extent of the damages sustained, and this is deemed legal compensation, which refers solely to the injury done to the property taken, and not to any collateral or consequential damages resulting to the owner by the trespass. These are taken into consideration only in a case more or less aggravated.” We remark here that the action of trespass for personal property, without aggravating circumstances, is to be regarded as one of trover in reference to the measure of damages. Some difference, however, exists in the courts as to the point of time to which we are to have reference, in estimating the value of the property taken or converted. The rule of the English courts seems to' be, to leave it to the jury to select any time between that of the wrong done and the trial. (Greening v. Wilkinson, 1 Car. & Payne, 344. Sedgwick on Damages, (2d ed.) 478, 479.) But in most of the American courts, the reference is to the time when the injury was committed, with interest down to the trial. (Kennedy v. Whitwell, 4 Pick. 466. Lillard v. Whitaker, 3 Bibb. 92. Watts v. Potter, 2 Mason’s U. S. Cir. Ct. 76.)

In New York, the measure in some cases, it seems, is the highest value of the property between these two periods, (Per Sutherland in West v. Beach, 3 Cow. 83 ;) while in other cases, the value at the time of the trespass is adopted as the proper measure. (Dillenback v. Jerome, 7 Cow. 294. Sedgwick on Damages, 479.) In our own state, it is believed, tbe practice has been to estimate the value at the time the injury was committed, and to allow interest to the time of the trial, and we see no reason to disturb it, and think it the correct rule.

In the present case, it is not pretended that there were any aggravating circumstances, and the proof was accordingly confined to the value of .the property. The witnesses, after stating its value at the time of the trespass, proceeded to state what they thought it would have been worth at the time they testified, taking into consideration the growth of the animals, and the increased value of such property; and the court, at the instance of the plaintiff, directed the jury that they were not confined to the value of the property at the time of the trespass, but might allow for the growth and the present value. All this was manifestly erroneous. The effect of the evidence and instruction was to allow the plaintiff to recover, not only all the profits that he could have made, if he had kept and raised the animals — allowing, too, nothing for the expense of taking care of them, and the accidents to which they are liable — but also the increased price of such property at the time of the trial, beyond what it was worth when the trespass was committed. The damages here to be allowed the plaintiff were to be a compensation, not only for the injury actually arising from the act done, estimating the property according to its value at the time when it was worth the most, but also for profits lost; and no case, it is believed, has ever gone this length.

The judgment must be reversed, and upon a re-assessment of the damages, they must be confined to the value of the property when the trespass was committed, upon which the jury may allow interest. The judgment is accordingly reversed, and the cause remanded.


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    Funk, Respondent, vs. Dillon, Appellant.
    1. Under the practice act of 1849, the wife is a competent witness to support the title of a bailee of her husband, in an action in the nature of trover against the bailee, to which the husband is not a partj.
    2. As to measure of damages for the conversion of a slave, (see Walker v. Borland, ante.)

      Appeal from Buchanan Court of Common Pleas.

    Action by Funk for the value of a female slave alleged to have been converted by Dillon. The plaintiff claimed the slave as the property of his wife, the daughter of William P. Flint. The defendant had hired the slave of Flint.
    At the trial, the plaintiff proved that Flint and wife were in possession of the slave from the time oE their removal to Missouri, until the plaintiff married their daughter; and that while so in possession, Flint frequently declared that the slave belonged to his daughter, and had been willed to her by her maternal grandfather. An exception was taken to the admission of Flint’s declarations.
    The defendant offered evidence tending to show that the slave was given to Flint’s wife by Maj. Pattison, her maternal grandfather ; and produced a bill of sale from Pattison to Flint, dated in 1842. The defendant offered Sarah E. Flint, wife of William P., as a witness, having previously read in evidence a decree divorcing her from her husband, but the court refused to permit her to testify, to which an exception was taken.
    The eighth instruction given for the plaintiff was as follows : “ The measure of damages in this case is the value of the slave in contest, and the value of her services since the demand and refusal.”
    After verdict and judgment for plaintiff, defendant appealed.

      H. M. Vories, for appellant.

      B. F. Loan, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The errors relied on for reversing the judgment of the court below, by the appellant’s counsel, principally embrace the rulings of that court, in admitting and rejecting the testimony of witnesses, and in giving instructions, and in refusing instructions. Many and various rulings have been pointed out here, and alleged to be erroneous, which it is not thought necessary to notice particularly.

1. The court erred in rejecting the testimony of Mrs. Sarah E. Flint. She was a proper and competent witness, and the defendant had the undoubted right to have had her testimony before the jury. Her husband was no party to this suit, and whether she and her husband had been separated by a divorce or not, made no difference. In no way does it appear by this record how either Sarah E. Flint, or her husband, William P. Flint, were to be held as incompetent witnesses. The great burden of the testimony, on the part of the plaintiff, was what had been said in regard to the ownership of the negro woman in controversy by William P. Flint.

How the testimony of Mrs. Flint became excluded, or rather why she was declared incompetent, and refused admission to be sworn, this court is at a loss to ascertain. In the case of Scroggin & Smith v. Holland, (16 Mo. Rep. 419,) this court held that the widow was a competent witness for the interest of her deceased .husband’s estate. A witness, under our late code, is not incompetent by reason of interest in the event of the suit. Here we cannot see the interest involved in behalf of Mrs. Flint. There may be, however, such interest; but interest does not now render a witness incompetent. The defendant claims the negro as a special bailee. The testimony shows he claims her as having hired her from William P. Flint. (See the case of Stein v. Weidmarts Adm’r, in the 20th vol. Mo. Rep. p. 17.) In this last case, a widow' marries the administrator of the estate of her first husband, and is admitted as a competent witness in favor of her present husband, the admin-isfcrator, in a controversy between him, as such administrator, and a person claiming to be a creditor of the estate of her first husband. (1 Greenl. Ev. secs. 837, 338.) In Wells v. Tucker, (3 Binney, 366,) it was held that the widow is a good witness to prove a donatio causa mortis by her deceased husband. But there is here no need to cite authorities, because the husband is no party, nor is his estate a party. Mrs. Flint has no interest, nor is she excluded by any common law rule from being a witness in this case. The court below, therefore, erred in refusing to let her be sworn as a witness.

2. The eighth instruction given for the plaintiff is not correct; it should not have been given. (See the case of Walker v. Borland, decided at this term of the court, and the opinion therein.)

The other instructions we say nothing about. The facts may assume a different face in the next trial, when the rejected witness is permitted to testify. I cannot close this opinion without remarking how exceedingly dark the whole case appears to us. In the next trial more light may appear; it is to be expected that it will, in order that justice may be done the parties. The judgment below must be reversed, and the cause remanded for further proceedings ;

Judge Scott, the other judge before whom it was argued, concurring.


text:
    Kritzer, Defendant in Error, vs. Smith, Plaintiff in Error.
    1. It is no ground of demurrer to a petition in an attachment suit upon a note before maturity, that it states the note to he “ due,” or that it fails to refer to the law, or state the existence of the facts which authorize an attachment under such circumstances. It is sufficient that the affidavit sets forth facts which, under the statute, constitute a cause.
    2. A defendant sued by attachment under the statute on a note not due, is not hound, it seems, to plead to the merits, until after the note is due.
    3. A party’s deposition, taken in a suit between different parties, maybe read in evidence against him as an admission. But the rule is, that the whole deposition must he read; though a failure in this respect is no ground for the reversal of a judgment, where it can he seen that the party has not been prejudiced.
    4. Where an affidavit for an attachment, upon a note not due, sets forth two causes which warrant an attachment in such a case, and one which does not, and issue is only taken upon the two which do, a general verdict for the plaintiff will sustain the suit.
    5. The issue being, whether a party was "about fraudulently to conceal or dispose of his property or effects so as to hinder or delay his creditors,” an instruction that he must have done some act to indicate the intent, was held properly refused, an instruction being given in the words of the statute.
    6. Upon a general judgment in an attachment suit, it is error to award a special execution against the property attached.

      Error to Jackson Circuit Court.

    Suit by attachment upon a note not due. After the usual averment setting forth the execution of the note, and describing it, the petition stated that the note was “ due and unpaid.” The affidavit set forth the 7th, 8th and 3d grounds of attachment, specified in the act (R. C. 1845.) The defendant and not the State was made the obligee in the bond given upon suing out the writ. The defendant, at the return term and before the note was due, filed a plea in abatement to the 7th and 8th grounds, but did not take issue on the Bd. At the trial, the plaintiff was permitted to read in evidence portions of a deposition of the defendant, taken in another suit .pending against defendant and another, in which third parties were plaintiffs, to the reading of which defendant excepted. The jury returned a general verdict for the plaintiff. The defendant afterwards moved for an arrest of further proceedings, on the ground that the verdict did not warrant a further prosecution of the suit. The motion was overruled, and the cause continued. In the interval between the two terms, the note fell due. At the next term, and on the fourth day thereof, the defendant asked leave to file a demurrer to the plaintiff’s petition, which was not granted, and final judgment was rendered for want of an answer for the amount of the note, with an award of a special execution against the property attached.

      At the trial of the plea in abatement, the following instruction asked by defendant was refused:
    “ 8. Before the jury can find for plaintiff, they must believe that defendant, at the time the attachment was sued out, had conceived an idea or intention to hinder or delay his creditors in the collection of their debts, and that he had done some act to indicate a design to carry out such intention.”
    The court instructed the jury to find for defendant, unless at the time of the attachment, “ he was about fraudulently to convey, assign, conceal or dispose of his property or effects so as to hinder or delay his creditors in the collection of their debts.”
    After a motion in arrest of judgment overruled, the defendant sued out this writ of error.

      J. B. Hovey, for plaintiff in error.
    I. The court erred in permitting portions of defendant’s deposition in another cause to be read in evidence. 1. The portions read were irrelevant to the issue in the cause in which the deposition was taken. 2. The rule as to sworn admissions at common law extended only to voluntary affidavits, bills and answers in chancery, examinations before commissioners in bankruptcy, oral testimony given in a regular cause before a court, and depositions which have been used for the purpose of evidence. ( Collett v. Keith, 4 Esp. Cases, 212.) 3. Since our practice act of 1849, the reason for allowing sworn admissions has altogether ceased, as either party may be sworn as a witness in the cause. (Art. 24, § 11.) II. The court erred in refusing the third instruction. The word “ fraudulently” is a legal term which should have been defined to the jury. III. As one of the causes of attachment mentioned in the affidavit did not warrant a suit upon a note not due, and was not withdrawn, a general verdict for the plaintiff did not authorize him to further prosecute the suit, and so the motion in arrest after verdict upon the plea in abatement should have been sustained. IV. There was error in refusing leave to defendant to file his demurrer, as he was not bound to plead to the merits of the action until the next term after the note became due, and within the first six days thereof. This being a suit under a special statute, the act of 1849, as to the time of pleading to suits on notes, does not apply. Y. The motion in arrest of judgment should have been sustained, because the petition was upon a note not due, and did not refer to any statute which authorized such a suit. VI. No sufficient bond was filed. (5 Mo. Rep. 18. 13 id. 25.)

      J. W. Reid, for defendant in error.
    1. Smith’s deposition was properly allowed to- be read in evidence as a sworn admission, nor does it matter that the portions read were immaterial to the issue in the cause in which it was taken. ( Cullett v. Keith, 4 Esp. Cases, 212. 1 Starkie, 172. 1 Camp. 30. 4 Camp. 10. 1 Litt. (Ky.) 219-20.) Nor is it material that it had never been used on a trial, as that would not affect its value as an admission. The statute of 1849, allowing a party to call his adversary as a witness, is without prejudice to the right of proving his admissions. 2. The attachment act of 1847 is a general law — a mere supplement to the act of 1845 — and of course need not be specially pleaded. 3. There is nothing in the practice act of 1849 or in the supplementary attachment law of 1847, which changes the time of pleading in suits upon notes not due. The judgment by default in this case was not rendered until the fourth day of the next term after the note was due. 4. The third instruction asked by defendant was properly refused. It involves the absurdity of a plaintiff taking steps to prevent a fraud which has been consummated. 5. The insertion in the affidavit of a cause which did not warrant an attachment under the circumstances, was mere surplusage, and no ground for arresting the judgment after verdict, no issue being taken upon it. The verdict was upon the issues taken. 6. If the bond was informal, it should have been taken advantage of by motion, and the plaintiff might have amended without prejudice. (Attachment act of 1845, art. 1, § 6.) The case is unlike Stephenson et al. v. Robbins, (5 Mo. Rep. 18.) There no bond was filed. But the bond in this case was sufficient. It afforded the plaintiff as substantial protection as if made to the state. (10 Mo. Rep. 665.)
   Scott, Judge,

delivered the opinion of the court.

As to the objection stated in the brief, that the bond for the attachment was not made payable to the state of Missouri, it may be answered that no point on the validity of the bond was made in the court below. In thus meeting the objection stated, we are not to be understood as expressing the opinion that the bond in this case would not have supported an action.

There was no error in refusing leave to the defendant below to file his demurrer, as we are of the opinion that it contained no cause affecting the plaintiff’s action.

1. On the face of the petition, it appeared that the time for the payment of the note on which the suit was brought, had not arrived; and the word “due,” used in the petition, must be construed to mean as it does in the saying debitum in presentí solvendum in futuro. The law authorized proceedings by attachment against debtors in certain circumstances, when the debt was not payable till a time posterior to the bringing of the suit. With this law in the mind, the proceedings would have been entirely intelligible. It was no more necessary to refer to that than to any other general statute.

2. If it had appeared that the defendant had any defence to the action of the plaintiff, the court, under the circumstances, should have lent an indulgent ear to it; but as it does not appear from any thing in the record that there was any real de-fence to the merits of the action, we cannot perceive any ground on which we would be warranted in reversing the judgment. The defendant, we conceive, was not bound to plead to the action until after the note on which the suit was brought became due.

3. In whatever light it may be viewed, we cannot see any ground on which the objection to the deposition of the defendant, Smith, given in another action, can be upheld. We take it for granted that the handwriting of Smith, the defendant, whose name is subscribed to the deposition, was proved or admitted, inasmuch as the bill of exceptions states that “ the identity of the defendant with the deposition is not disputed.”. His name being subscribed to the deposition, on no ground could it be refused as an admission. It was evidence, just as a letter or voluntary affidavit would have been. There is nothing in the practice act of 1849 which can affect this question. That a party can be sworn as a witness in a cause, can be no reason why his admissions may not be read against him. It was a rule of the common law that what a witness swore on a trial between others, subjecting him to an action or the payment of a debt, might be given in evidence against him in a suit in which he was a party. He was not exempt from giving such testimony. He was at liberty afterwards to explain his evidence. This we conceive to be the common law on this subject, confirmed by an act of parliament, made in accordance with the views of a majority of the English judges. We have a similar statute. Irrelevant questions, put with a view to extract evidence from the witness against himself, would be discountenanced, and all courts would protect a witness in his refusal to answer them. Questions improperly put, yet if answered, the answer will be evidence against the witness. This matter is so plain that it cannot be necessary to say more upon it.

As the deposition was read as an admission, regularly, the party reading it should have read the whole. The distinction is that, when an answer is read as a part of the pleadings in the cause in which it is filed, only such parts may be read as the party desires ; but when it is taken from the cause in which it is filed and read in another proceeding, as an admission, there the whole of it must be read by the party offering it. The course pursued on the trial was not regular, but as it does not appear that there were any other parts of the deposition read which varied the sense of those parts which were read, we cannot reverse the judgment for that cause. The deposition read on the trial is in the record, and we do not see that the party Was injuriously affected by the omission to read the whole of it. (3 Greenl. 1 Starkie, 290, 1, 2, 3.)

4. As there were issues taken on but two of the causes alleged for suing out the attachment, there being a general ver-diet for ¿he plaintiff, does not create any error, as either of the causes on which issue was taken was sufficient to support the attachment. The omission to take issue on the third ground stated in the affidavit for the attachment, was no admission of its truth ; and if it amounted in fact to such an admission, the plaintiff is not affected thereby, although it may be that this ground of itself would not sustain an attachment under the circumstances.

5. There is no warrant in the statute for the idea contained in the third instruction asked by the defendant; it was therefore properly refused. The instructions given clearly set forth the law applicable to the case.

6. The judgment in this cause was a general one. The 59th section of the 1st article of the law concerning attachments enacts that, “ where there is a general judgment against the defendant, the execution shall be a common fieri facias, which may be levied upon all the property of the defendant subject to execution, whether attached in the cause or not.” The judgment and award of execution, therefore, in this case is erroneous, inasmuch as the court undertook to specify what property should be sold. The judgment being a general one, as required by the pleadings, the court had no authority to condemn the attached lot to be sold, as under such a judgment the attached property need not necessarily be sold. If there is other property sufficient to satisfy the execution, the defendant may surrender it and have the attached property reserved, if he wills it. This is a right the execution law gives him, and which the court had no power to take away.

The judgment will be reversed, and a general judgment will be entered here, such as the law requires, and the defendant in error will pay the costs. The other judges concur.


text:
    Gunn’s Administrator, Appellant, vs. Todd, Respondent.
    1. The subject matter of an original suit, during its pendency, may he used as a set-off by the plaintiff; and a final judgment may he pleaded as a set-off.
    2. A demand for the amount of a note received for collection and converted, is not unliquidated damages, and is the subject of set-off.
    3. Xritzer v. Smith, ante, affirmed.

      appeal from Weston Court of Common Pleas.

    Action begun .in the Platte Circuit Court, and taken by change of venue to the Weston Court of Common Pleas. The record showed two amended petitions and answers* The original and first amended petition were for a balance alleged to be due on account of money received by defendant from plaintiff’s intestate, after deducting a payment of $502. The last petition was founded upon a due bill, (which, it would appear, was discovered after the commencement of the suit,) for an amount’slightly varying from the sum of money stated in the original-petitions and answers to have been received. The plaintiff asked judgment for the amount of the due bill, allowing no> credit for payment. The defendant, in his answer to this petition, after stating that the due bill was given for the money,, and that he had paid $502, pleaded against the balance, 1st,. The amount of a note received by plaintiff’s intestate for collection and converted to his own use, as a set-off ; 2d, A judgment of the Probate Court prior to the commencement of this-suit, in bar; and 3d, The judgment as a set-off.
    The record showed no replication to the last answer. At the' trial, the defendant read in evidence the deposition of Bush,, proving payment of $502 on an order, and offered evidence-tending to sustain his first plea. He then read in evidence a judgment of the Probate Court in his favor against the plaintiff, as administrator, in connection with parol testimony that it was for the amount of the note mentioned in his first plea,, less the balance then claimed to be due from him on account of the money received from the intestate, which was allowed as a set-off.
    The plaintiff, in rebuttal, was permitted to read in evidence an admission in the defendant’s second answer, as to the amount of money received by him ; and thereupon the defendant was allowed to read the balance of his answer showing that he had set up the same pleas contained in his last answer.
    The following instructions asked by plaintiff were refused :
    2. If the jury believe from the testimony that the subject matter of the set-off is now pending in a suit between the same parties, commenced before the set-off in this case, then such set-off should not be considered by them.
    3. Unless they believe from the testimony that plaintiff was credited by defendant or allowed by the Probate Court the same amount on the note or due bill sued on, they will find for plaintiff the amount of the note with interest.
    4. If they believe from the testimony that the note or due bill was never before the Probate Court of this county, they will find for plaintiff the amount of the note with interest.
    5. If they believe from the testimony that the judgment mentioned in defendant’s set-off before the Probate Court has been appealed from to the Circuit Court, and is now pending and undetermined, they will not consider it as a matter of set-off in this case.
    7. Unless the jury believe from the evidence that the $502 paid on the order mentioned in Bush’s deposition to defendant, was upon the note or due bill sued on, they will not take it into consideration in making up their verdict.
    8. If they believe from the testimony that the note put into Gunn’s hands for collection was converted to his own use, it is unliquidated damages, which they cannot consider.
    There was a verdict for the defendant upon his set-off. No appearance for appellant.

      Abell & Stringfellow for respondent.
   Scott, Judge,

delivered the opinion of the court.

No brief was filed in this cause, and in the absence of all oral argument, we are left to the assignment of errors, in order to ascertain of what complaint is made to the detriment of the appellant, who was plaintiff below.

The error specifically assigned is the refusal of the court to give the second, third, fourth, fifth, seventh and eighth instructions asked by the plaintiff. The instruction numbered two was properly refused, as nothing is clearer than that the subject matter of an original suit may be used as a set-off by the plaintiff in that suit during its pendency, when he is sued by his adversary. If it is a final judgment, it is a set- off as a judgment. (Chitty, 553.) The third instruction would have effected nothing for the plaintiff. He obtained the full benefit of the set-off alluded to by it, and there was no question but that all the petitions, both original and amended, referred to but one and the same indebtedness, and that the due bill was only evidence of the debt mentioned in the original petition. There is no pretence that the defendant, Todd, owed more than one debt to the plaintiff’s testator. The objection to the fourth instruction is sustained by the observations made on the third.

There was no error in the refusal to give the fifth instruction. The set-off of the defendant had been pleaded, both as an original demand, as it stood before it was matured into a judgment, and as a judgment. It stood admitted in both these forms, as the third amended answer in the supplemental record before us was not replied to ; and as the defendant got the benefit of it in only one of the forms in which it was pleaded, the plaintiff has sustained no injury. The objection to the seventh instruction is shown by what has been said in relation to the third. Moreover, a set- off was pleaded to the amended petition, in which the due bill was set out, which was not replied to, and therefore stood admitted.

The eighth instruction does not contain a correct proposition. If the plaintiff’s intestate converted a note to his own use, there is no reason why he should not pay the value of it; such value would not be unliquidated damages.

The reading of a portion of the defendant’s answer by the plaintiff as evidence, the answer being a pleading in the cause, and read as such, gave the defendant no right to use any other parts of the answer as evidence for himself. If a defendant admits one fact and it is used by his adversary as evidence, surely that can be no warrant to him to take all the facts stated in the answer as evidence against the plaintiff. If any other portions of the answer, not read by the plaintiff, affected the sense, or explained, in any way, the portions read, he would have a right to read them ; but as to the portions which related to other facts, he would have no right to do so. This matter was considered in the case of Kritzer v. Smith, decided at this term, and the law in relation to it was then stated. But, inasmuch as the admissions contained in the answer read, were made in another answer in the cause, which was not replied to, being in relation to the set-off, the plaintiff has sustained no injury by the admission of such evidence.

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


text:
    Todd, Respondent, vs. Gunn’s Administrator, Appellant.
    1. Under the act to establish a probate court in Buchanan county, (sess. acts of 1851, p. 514,) an appeal may be taken in vacation within thirty day3 after judgment.
    2. A manifest clerical error in the record making it appear that the appeal was taken before judgment, is no ground for dismissing the appeal, the bond showing that the appeal was taken within the time allowed by law.

      Appeal from Weston Court of Common Pleas.

      Adams, for appellant.

      Abell & Stringfellow, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This eause was commenced in tbe Probate Court, whence it was appealed to the Circuit Court of Platte county, from which it was transferred by a change of venue to the Weston Court of Common Pleas, where the appeal was dismissed and the cause brought here.

The appeal from the Probate Court was dismissed by the Court of Common Pleas in Platte county, on a motion founded on the following reasons : That the appeal was not taken according to law; that it was not taken during the term at which the judgment was rendered ; that no bill of exceptions was allowed and filed ; that no appeal was taken from the judgment of the Probate Court; that the pretended appeal was taken before the judgment was rendered.

The tenth section of the sixth article of the act to establish a Probate Court in Buchanan county, puts that act in force in the county of Platte. (Sess. Acts of 1851, p. 514.) The second and third sections of this act regulate the taking of ap - peals from the Probate to the Circuit Court. It appears from the record that an appeal was granted ; that there was an affidavit and a bond for an appeal. The bill of exceptions was signed by the judge and certified by the clerk.

As to the objection that the appeal was not taken during the term at which the judgment was rendered, the third section of the act.referred to allows appeals to be taken within thirty days from the rendition of the judgment. This, surely, implies that an appeal may be taken in vacation, as a judgment may be rendered on the last day of the term.

It appears that the allowance was made on the 8th February, 1853, by the Probate Court. The record states that after-wards, on the 4th of February, 1853, in vacation, an appeal was prayed. This is evidently a clerical error, as the appeal being asked for after the judgment, it could not have been on the 4th February, 1853. The other proceedings correct this, and show it to be an error, for the appeal bond was dated on tbe 4th March, 1853, showing that the appeal was taken within the time allowed by law.

The judgment will be reversed, and the cause remanded ; and as the plaintiff, Todd, has obtained the benefit of his claim in this suit in another action, decided at this term, the defendant may avail himself of that defence in a trial de novo, in the court to which this cause will be remanded.

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