text:
    Kick, Respondent, v. Merry, Appellant.
    1. An agreement to reward a public officer, a policeman, for doing that which it is his duty by law to do, is void as against public policy.

      Appeal from, St. Louis Law Commissioner’s Court.

    This was a suit to recover upon a contract, set forth in the petition as follows: 4 ‘ That in consideration that the plaintiff would use his utmost diligence in aiding and assisting to apprehend one Gr. W. Morrison, charged with the crime of larceny, and aid in bringing him, the said Morrison, to trial, for the said crime, he, said defendant, would give to said plaintiff one half of whatever amount might be recovered from said Morrison, at the suit of the State of Missouri against him, said Morrison, upon said charge of larceny, as aforesaid.”
    The court below found the following to be the facts proved upon the trial of this cause: “ That on or about the 9th day of May, 1854, the defendant was knocked down and robbed of a large amount of money, about $290, by one Gf. W. Morrison, in the city of St. Louis; that the defendant agreed with the plaintiff, that if he, the plaintiff, would procure the arrest of the said Morrison, and if he, the said Morrison, should be convicted of the robbery, he, plaintiff, should have one half of the money that might be found upon the person of the said Morrison. The plaintiff thereupon set about ferreting out the said Morrison, and shortly succeeded in arresting him, and found upon his person $215 of the money; that the said Morrison was convicted of the offence in the St. Louis Criminal Court, and sentenced to the penitentiary, and the said $215 were ordered by the Criminal Court to be delivered by the county marshal to the plaintiff or his representative ; that, at the time he made the arrest, the said plaintiff was acting as, and holding the office of, captain of the day police of the city of St. Louis, receiving a stated salary from said city for his services ; that the defendant did not know the said Morrison, nor his whereabouts at the time of making the agreement as stated ; that he furnished the plaintiff with a description of Morrison’s person, who thereupon searched for him, arrested him, and took him to the room of the defendant at the Yirginia hotel, who recognized him as the person who had knocked him down, and taken his money ; that he arrested him merely upon the representation and description of the defendant, without any warrant.”
    The court, on this finding of facts, declared the law to be that the plaintiff is entitled to recover, and that the amount of his recovery ought to be the half of $215, the amount found upon Morrison’s person.
    Judgment was accordingly given for the plaintiff for $107 50. A motion for a review having been made and overruled, the case is brought to this court by appeal.

      S. Jl. Bennett, for appellant.
    I. There is a material variance between the contract stated in the petition and that found by the court.
    II. The contract stated in the petition, as well as that found, is void, and can not be enforced against the appellant for one or both of two reasons: 1. It is without consideration, being a contract to pay the plaintiff for services which it was his official duty to perform, and for which he was compensated by the city. 2. It is against public policy. (Pool v. City of Boston, 5 Cush. 219 and cases cited.)

      III. That it is the duty of police officers to make arrests in many cases without warrants, see State v. Roberts (15 Mo. Rep. 28).

      Hart & Jecho, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This action can not be maintained. It is a principle of the common law that an officer ought not to take money for doing his duty. Hawkins says, if once it should be allowed that promises to an officer, to pay more for his services than the law allows, could sustain an action, the people would quickly be given to understand how kindly they would be taken, and happy would that man be who could have his business well done without them.” (1 Hawk. ch. 68, § 4.) This is an ancient principle, and it has been steadily adhered to as being necessary to save the community from extortion and oppression. Once allow an officer to contract for extra compensation for the discharge of his duty, and bribery would become the means by which alone the laws could be executed. Chancellor Kent says that every seaman is bound, from the nature and terms of his contract, to do his duty in the service, to the utmost of his ability; and therefore, a promise made by a master, when the ship is in distress, to pay extra wages, as an inducement to extraordinary exertion, is illegal and void. (3 Kent’s Com. 185.) In the case of Hatch v. Mann, (15 Wend. 44,) the court of errors in New York held, that a constable or other ministerial officer, the fees for whose official services are prescribed by law, can not maintain an action on a promise of extra compensation for extra services, although services beyond what could legally be required are rendered by the officer. In Mitchell v. Vance, (5 Mon. 529,) the court maintained that a bond executed for the purpose of inducing a constable to do that which, by the duties of his office, it was incumbent upon him to do and as such, was not binding. In the case of Calligan v. Hallet, (1 Caine’s Reps.) it was held, that a contract with a pilot to assist a vessel in distress, for a certain sum to be paid, is absolutely void. Tbe court observed : “it being made tbe duty of tbe pilot to assist tbe defendant’s vessel, it was oppression in them to exact tbe stipulation in question. It would lead to abuses of tbe most serious nature, if such contracts, formed on such considerations, were held to be legal.” Tbe case of Gilmore v. Lewis, (12 Ohio, 281,) bolds : “ That it is an indictable of-fence, in public officers, to exact and receive any thing more, 'for tbe performance of their legal duty, than tbe fees allowed by statute. A promise to pay them extra compensation is absolutely void. A reward offered for tbe apprehension of a thief, and tbe recovery of tbe money stolen, can not be claimed by a constable who arrests tbe thief by virtue of a warrant delivered to him for that purpose.” In tbe case of Pool v. The City of Boston, the court decided that “ a watchman of the city of Boston, who, while in the discharge of bis duty, as such, discovers a person setting fire to a building, and prosecutes him to conviction, is not entitled to claim a reward offered by tbe city government for tbe detection and conviction of an incendiary.

Tbe ordinance regulating the police department of tbe city of St. Louis, section 21, prescribes that “ tbe members of the department shall not engage in any business which may withdraw their attention from their police service or unfit them for tbe duties required of them.” The plaintiff was captain of the day guard. It is made the duty of the privates of the police department to obey punctually, and to the best of their ability, the orders of the captains of the city guard. They are required, to the best of their ability, to preserve order, peace and quiet throughout the city. The members of the city guard may enter any house, enclosure or other place, where a breach of the peace or crime, or breach of ordinance, has been or is being committed, and arrest the offender. The arrest, in this ease, was lawful, without a warrant. (State v. Roberts, 15 Mo. 28.) The arrest was lawful by the common law, without warrant. Under the circumstances, the officer has no right to insist that he acted as an individual in his private capacity. The case falls within the mischief of the rule of the common law which prohibits an officer from taking a reward as an inducement to do his duty. He received a stated salary for his services. The services rendered were within the duties of his office. All his energies had been devoted to the service of the city. Under such circumstances, to permit an officer to stipulate for extra compensation for services to which the public was entitled, would lead to great corruption and oppression in office. It would follow that whenever a crime was committed, instead of speedy efforts for the arrest of the offender, there would be a holding back, in the hope that there would be a reward given for his apprehension. If once a habit of taking a reward is introduced, nothing will be done unless the service is previously purchased by extra pay. The other judges concurring, the judgment will be reversed.


source: Caselaw Access Project

author: RylaND, Judge,

license: Public Domain

text:
    Dean, Defendant in Error, v. McFaul et al., Plaintiffs in Error.
    1. Where partners, commission merchants, receive a consignment of goods for sale, and a dissolution of the partnership afterwards takes place before the goods are sold, and they are turned over to, and are sold by, the partner continning in the business, the outgoing partner is not exonerated from his liability to the shipper by the mere fact that a special notice of the dissolution of the partnership was sent to such shipper, containing also a statement that the goods of the shipper were left in the hands of the continuing partner.

      Error to St. Louis Law Commissioner’s Court.

    This was a suit to recover of defendants, Mogridge & Mc-Faul, the value of certain barrels of oil shipped by plaintiff to the firm of Mogridge & McFaul. The facts sufficiently appear in the opinion of the court.

      Lord, for plaintiff in error.
    Whittelsey, for defendant in error.
   RylaND, Judge,

delivered the opinion of tlie court.

The only question in this case is, whether the court erred in excluding the evidence of the contents of notice of dissolution of the partnership of Mogridge & McFaul to the plaintiff. There is nothing in this question ; for if the evidence had been admitted, it could not have changed the result, and, of course, its exclusion is no ground for reversal.

The oil had been shipped to the firm of Mogridge & McFaul in April, 1858 ; was received by them for sale on commission. In June following, McFaul, upon a dissolution of the partnership, retires from the firm, leaving the oil with his former partner, Mogridge, unsold. Notice of the dissolution of the partnership is published, and written notice sent by mail to plaintiff. McFaul contends that this notice absolves him from his previous liability to plaintiff on account of the oil. Now we say, no matter what his notice contained, that alone would not exonerate him. He, as one of the firm, had received the goods of the plaintiff to sell on commission ; and it is not competent for him afterwards to slip out of his firm, and, by notice to his customers and creditors, slip out of liability at the same time, without any understanding on the part of such creditors or customers to that effect. Therefore, no matter what the notice contained, it could not have changed the result in this case.

The evidence was given below without any objection: nothing is saved on the record in regard to it. Let the judgment ment be affirmed;

the other judges concurring.


author: RylANd, Judge,

text:
    Gillett, Respondent, v. Wimer et al., Appellants.
    1. Where the facts in evidence will warrant it, it is proper to instruct a jury that they are authorized to reject the whole of the testimony of a witness who has wilfully sworn falsely with regard to any material fact.

      Jippeal from St. Louis Court of Common Pleas.

    Tbe facts sufficiently appear in the opinion of the court.

      P. E. Bland, for appellants,
    cited State v. Mix, 15 Mo. 15B ; Dunlap v. Patterson, 5 Cow. Rep. 243 ; 1 Devereux, 508 ; Newell v. Wright, 8 Conn. 823 ; The Santísima Trinidad, 7 Wheat. 288 ; The Nereide, 9 Cranch, 416-17. See also Keiser et al. v. Moore, 14 Mo. 28, 33.

      Knox & Kellogg, for respondents,
    cited State v. Anderson (19 Mo. 245).
   RylANd, Judge,

delivered the opinion.of the court.

The only question considered material in this case is the one arising from the refusal of the court below to give the following instruction asked for by the defendants: “ If the jury believe from the evidence that the witness (Cross) wilfully testified falsely with regard to any material fact, they are authorized to discard the whole of his testimony.” From the record, we see-that there was but one witness for the plaintiff, the witness Cross ; and that his testimony was contradicted by other witnesses, on the part of the defendants. So the instruction was not merely an abstract one, but was authorized by the evidence. Was it lawful, then, to give it ? This question was before this court in the case of the State v. Mix, (15 Mo. 153,) and a similar instruction was decided to be proper, and that it was error to refuse to give it. The decision in this case of the State v. Mix we consider as declaratory of principles well established, and therefore the court below erred in refusing to give the jury the instruction.

It has been said, that, if witnesses concur in proof of a material fact, whatever may be the other contradictions in their testimony, they ought to be believed in respect to that fact. That position may be true under circumstances ; but it is a doctrine which can be received only under many qualifications, and with great caution. If the circumstances respecting which the testimony is discordant be immaterial, and of such a nature that mistakes may easily exist, and be accounted for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the belief that the discrepancies arise from the infirmity of the human mind, rather than from deliberate error. But where the party speaks to a fact in respect to which he can not be presumed liable to mistake — as in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, — if the fact turn out otherwise, it is extremely difficult to exempt him from the charge of deliberate falsehood. Courts of justice, under such circumstances, are bound, upon principles of law and morality and justice, to apply the maxim, falsus in uno, falsus in omnibus. What ground of judicial belief can there be left when the party has shown such gross insensibility to the difference between right and wrong, truth and falsehood? (The Santisima Trinidad, 7 Wheat. 338-9, per Story, J.) We think that, in order to enable the jury to understand their rights and privileges, and do justice to the parties, wherever the testimony calls for such an instruction, the courts ought to give.it. The jury are to weigh the evidence, the manner of detailing it by the witnesses, and to give it such credence as in their opinion it deserves. We do not say that it would be error for the court below to refuse to instruct a jury in such cases to reject the testimony of the witness entirely. Such instruction had better never be given; but it is the duty of the court to let the jury weigh the evidence, and to advise or instruct them that they are authorized to reject or to believe such portions of it as, in their minds, accord with the truth. It is for the jury to believe or disbelieve — the court can not tell them how much.

In this case, there being a contradiction of the only witness for the plaintiff, and that, too, in a matter material to the merits of the controversy between the parties, the court ought to have given the instruction asked for by the defendants. The judgment below is reversed, and the cause remanded;

the other judges concurring.


author: Scott, Judge,

text:
    Wise, Assignee of Eubank, Appellant, v. St. Louis Marine Insurance Company, Respondent.
    1. A policy of insurance, made in" the name of a particular person, will not cover and protect the interest of any person other than the one named in the policy as the assured, unless the words “ for whom it may concern,” or other equivalent words, indicate that it is intended that the interest of such other person should be covered by the sames nor can a custom or usage he shown contravening this rule of law.

      Error to St. Louis Court of Common Pleas.

    This was a suit on a policy of insurance, dated January 1st, 1858. The policy covered the usual perils, and contained the following clauses : “ This policy of insurance witnesseth, that the Marine Insurance Company of St. Louis do by these presents cause Mr. Samuel L. James to be insured, lost or not lost, to the 31st day of December, 1853, on all shipments of merchandise, the property of the assured, at and from places within the United States, direct to St. Louis, on good ships and vessels by sea, good steamboats on lakes and rivers, good canal boats on canals, and by railroads over land : the assured to notify this company of every such shipment as soon as advised thereof, specifying invoices and aggregate amount. ” “ No shipment from St. Louis will be covered by this policy until reported to and accepted by this company. This policy will also cover all consignments to the address of the assured, whereon insurance may be required, either by endorsement on bill of lading, or by letter per mail previous to or at the time of shipment, the assured to notify this company of every such shipment as soon as known to him.” “ This policy will cover any other shipment only when specially applied for and accepted by endorsement hereon.” This policy was made a part of the petition.
    The plaintiff, after setting forth in his petition the making of the policy, &c., proceeds as follows: “ The plaintiff further states, tbat on or about tbe first day of- April, 1858, tbe said James, acting for tbe plaintiff’s assignor, Cornelius Eubank, made a shipment of merchandise, tbe property of said Eubank, upon a good steamboat, tbe steamboat Georgia, at the said port of St. Louis, to be thence conveyed and transported to Council Bluffs, a town on tbe Missouri river ; tbat at the time when said shipment was made, said James, acting for said Eu-bank, notified tbe said defendant of said shipment, and specially applied for insurance thereon for tbe said Eubank, which application was then and there apcepted; and it was then and there agreed by and between said James, so acting as aforesaid for said Eubank and the said defendant, that said insurance should be made and perfected by the same being entered and endorsed in said James’ policy aforesaid, for the said Eu-bank, and it was agreed that the costs and expenses of said insurance should be placed in said James’ regular insurance account with said defendant, and be charged and collected of and paid by said James, the same as if the said merchandise so insured had been the property of said James, although it was well understood at the time of the contracting as aforesaid that the said property so insured belonged to said Eubank, and that the said insurance was his, and for the benefit of him, the said Eubank. The plaintiff further states that thereupon the endorsement of said insurance was made upon said James’ policy, and the risk taken by the said defendant; and said defendant then and there agreed, and for the consideration of $184, paid or to be paid by said James to said defendant, did then and there insure said property of said Eubank, for him the said Eubank, against the perils aforesaid in said policy mentioned. The plaintiff further states that the manner aforesaid of the making of said insurance was according to long continued custom of said defendant in such like cases. ” Plaintiff then states the value of the merchandise claimed tobe covered by the policy, to-wit, $7372, and its loss by a peril insured against.
    To this petition defendant demurred, and assigned as grounds of the demurrer, “ 1st. The petition does not show facts sufficient to constitute a cause of action in the plaintiff; 2d. The petition does not show any contract with plaintiff or with plaintiff’s assignor ; 3d. It does not show that said written policy of insurance was made with plaintiff’s assignor or for his account, but, on the contrary, with one James ; 4th. There is no written contract or liability shown from defendant to said Eu-bank upon which the action can lie in law.”
    The court sustained the demurrer, and rendered judgment thereon for the defendant. Plaintiff appealed to this court.

      ■Krurn & Harding, for appellant.
    I. By the clause in the policy, which, is in the following words, “ this policy will cover any other shipment only when specially applied for and accepted by endorsement hereon,” there is an agreement on the part of the respondent that the policy should cover all shipments, without regard to ownership, which might be specially applied for and accepted by endorsement as aforesaid. The limitation as to the property being “ the property of the assured” is confined to only one class of risks. It evidently does not apply to that class which iit next named, viz., consignments to the address of the assured; nor to that class of which the risk in question was one, viz., a risk on property not belonging to the assured ; but which, by custom among underwriters oh risks on the western waters, and by force of the fair interpretation of the above clause in the policy, belongs to some other person for whom the assured was the broker or factor.
    II. Every usage of a particular trade which is so well settled, or so generally known, that all persons engaged in that trade may fairly be considered as contracting with reference to tt, is considered to form part of every policy designed to protect risks in such trade. (1 Arnould on Insurance, 66, 69.)
    III. The clause above quoted is equivalent to the words, “ or whom it may concern.” It contemplates the securing of the interest of other persons besides James, and this case is therefore not similar to the case in 8 Mete. 348.
    IV. Under our present system of practice, the suit can not be brought in the name of an insurance broker or of the assured to the use of the real party in interest; but it must be brought in the name of the latter. (Art. 8, sec. 1 Prac. Act, 1849.)
    V. The court below therefore erred in sustaining the demurrer to the petition, and should have allowed plaintiff to make proof of'the usage, if the construction of the clause aforesaid, taken in connection with the present method of bringing suits, were not sufficient to give the plaintiff the right to sue iu his own name, independent of such proof.

      J. A. Kasson, for respondent,
    cited,-1 Taunt. 115 ; 1 Phil, on Ins. §§ 379-80 ; Kaines v. -Knightly, Skin. 54 ; Leslie v. La Tone, 12 East. 358 ; Dix v. Dix, 5 Pick. 38 ; Stackpole v. Arnold, 11 Mass. 27 ; Einney v. Bedford Ins. Co. 8 Mete. 348 ; 1 Arnould on Ins. 64.
   Scott, Judge,

delivered the opinion of the court.

It is a rule of law that, if an insurance is made by a person in his own name only, without any indication in the policy that any other is interested, it can be applied only to his own proper interest in the subject, or his interest as trustee, or in some other way. (1 Phil, on Ins. 210.) Thus it was held that, where a part owner of a vessel, or its outfits, effected insurance thereon, in his own name only, and there was nothing in the policy which indicated that the interest of any other person was secured thereby, an action on the policy could not be maintained in the name of all the owners, upon parol proof that such part owner acted as their agent for effecting insurance, and this was known to the underwriters, and the insurers agreed to insure for them all. (Finney v. Bedford Com. Ins. Co. 8 Metc. 348.) So, in the case of Graves & Barnwell v. Boston Marine Ins. Co. (2 Conn. 418,) it was held that a policy in the name of one joint owner “ as property may appear,” without a clause stating the insurance to be for the benefit of all concerned, does not cover the interest of another joint owner. In the case of Kemble v. Rhinelander, (3 John. Cases,) Judge Kent said : “ The declaration in the policy that the insurance. was for the account of M., was equivalent to saying that the cargo was his property.”

In policies, the insured may be described in such way that any person may be comprehended and become entitled to the contract by proving that he was the party intended by the policy. Various forms of expression are adopted for this purpose. Iu England a broker insures as well in his own name as in the name of all persons whatsover, to whom the same may in any way appertain. We are to\d the same form is frequently used in the United States, as well as a more compendious one, in which the party taking the policy is insured for himself and <£ whom it may concern.” A policy made in the name of a particular person, “ for whom it may concern,” or any equivalent clause, will be construed to protect the interest of the party or parties intended at the time the policy is made, who have authorized it or made it theirs by subsequent adoption. (1 Phil. on Ins. 210.)

In the case under consideration, the policy contains no clause nor any words indicative that the interest of any other person than of him named in the contract, was intended to be covered by it. The argument that the clause in the contract, by which it is stipulated that “ this policy will cover any other shipment only when specially applied for and accepted by endorsement hereon,” was equivalent to the words “for the owners” or 11 for whom it may concern,” and would authorize proof that the plaintiff’s assignor was the party for whose benefit the policy was intended, loses sight of the rule stated above, that insurance made by a person in his own name only, without any indication in the policy that any other is interested, can be applied only to his own proper interest. The clause, to which allusion hag been made, must be construed in reference to this, rule, and can be extended only to interests owned by the persons named. It is not necessary to give the clause the force contended for, in order that it may have effect. This suit not having been instituted in the name of the party with whom the contract was made, it can not be ascertained whether he had such an interest in tbe goods as would warrant a recovery for tbeir loss.

Tbe rule against tbe admission of parol evidence to explain written contracts, is inflexible. Custom can not sanction a violation of law. Where a policy of insurance was executed in blank, as thus, “A. B., on account of , do-make insurance,” it was held that parol evidence of tbe usage of underwriters and of mercantile understanding, for tbe purpose of giving construction and meaning to the policy, was inadmissible. (Turner v. Burrows, 5 Wend. 541.) A distinct additional, independent stipulation, not comprehended or covered by tbe language of the policy, can not be introdaced into it by usage. (Phil. on Ins. 100.)

Tbe plaintiff not having proceeded on the assumption that there was any mistake or fraud in writing tbe original policy, or in making tbe endorsement thereon, tbe satisfactory proof of which facts, or either of them, would be a ground for reforming tbe contract so as to make it agreeable to tbe intention of tbe parties, we are relieved from any inquiry in relation to that matter. (2 Cranch, 419.) So, as this suit has not been brought in the name of tbe party mentioned in tbe policy, we are precluded from any inquiry as to the extent of bis interest in tbe cargo, whether it was such as would entitle him to recover, or bow much.

Tbe judgment is affirmed;

tbe other judges concur.


author: LEONARD, Judge,

text:
    Lackey, Respondent, v. Seibert and others, Appellants.
    1. The Law Commissioner of St. Louis county has the authority to issue writs of attachment against the property of persons sued in his court.
    2. The levy of a writ of attachment upon land creates a charge or lien from the moment of 1he levy; a sale therefore, under an execution issued upon the judgment against the defendant in the attachment, relates hack to the time of the levy, and passes the title -to the purchaser, unaffected by any encumbrances created or conveyances made subsequently to such levy.

      3. The requisites of a levy of a writ of attachment upon real estate. Prima facie, it should be presumed that a writ of attachment was levied as early as the date under which the return is made.
    4. Where there has been a personal service of a writ of attachment upon the defendant, the attachment will not, it seems, he defeated as against subsequent purchasers, by a failure of the officer making return to state in his return the fact that notice of the attachment has been given to the actual tenants, and the names of those tenants.

      •Appeal from St. Louis Land Court.

    This was an action in tbe nature of an action of ejectment to recover possession of a lot in the city of St. Louis.
    The answer denies the title of plaintiff, and asserts title in August Seibert, the principal defendant, under whom the other defendants were holding as tenants. Both parties claim title under Eugene Riehl. The title of the plaintiff is based upon ijhe following facts shown in proof on the trial:
    On the 6th day of February, 1854, Lackey filed in the office of the Law Commissioner of St. Louis county a petition against Eugene Riehl, demanding one hundred dollars u on account of services rendered in selling certain real estate according to verbal agreement.” To this petition there was appended an affidavit, by Lackey, and a bond, such as are used in cases of attachment issuing out of the Circuit Court. Thereupon, on the same 6th day of February, 1854, there went forth from the Law Commissioner a writ, under his seal and sign manual, addressed to the marshal of St. Louis county, directing him to “ attach Eugene Riehl by all and singular his lands and tenements, goods, chattels, &c., and to summon said Riehl to appear before the Law Commissioner’s Court on the first Monday of April,” etc. The return on this writ, as appears on the record, is in the following terms :

      “ Executed this writ by delivering a true copy of the same and petition to the within named defendant, and by attaching (at the request of the plaintiff) the following described real estate as the property of said defendant [describing the property in dispute]. St. Louis, February 6,1854. David Bayles, marshal. By Henry MeMeins, deputy.”
    Judgment by default was rendered against the said Riehl April 11th, 1854 ; and the lot in controversy was levied on under an execution issued May 1st, 1854, and sold to Lackey. The marshal’s deed conveying the said lot to Lackey is dated May 25th, 1854, and the consideration expressed is ninety dollars. The regularity of the proceedings, under the judgment and execution, was not called in question. The defendant, August Seibert, claimed title to the lot in controversy as a purchaser for value, without notice, under a deed from Eugene Riehl and wife. This deed is dated March 3d, 1854, and the consideration expressed therein was two thousand dollars. There was no evidence tending to throw doubt upon the bona fides of this transaction; nor to prove actual notice to the purchaser, Seibert, of any adversary claim on the part of Lackey, further than the pendency of the attachment suit against Riehl above referred to.
    Plaintiff proved that he had demanded of defendants possession of the premises claimed in this suit, and that such demand had been refused.
    The court below, on the plaintiff’s motion, gave the two following instructions : “ 1. If the property in question was attached at the suit of Hugh Lackey against Eugene Riehl, on the 6th of February, 1854, before the Law Commissioner’s Court of St. Louis county, and the said property was sold under an execution against the said Riehl in the said cause, and said Lackey became the purchaser thereof at said sale as shown by the deed from Bayles as marshal, then Lackey, under said deed, became the purchaser and owner of all the right, title and interest which the said Riehl had in and to said property on the 6th day of February, 1854.” “ 2. The deed of Riehl and wife to Seibert is subject to the suit by attachment of Lackey against Riehl; and the title under a judgment, execution, and sale in said suit, is a better title than the conveyance made subsequently to the attachment by Riehl and wife to Seibert.”

      The court below refused the following instruction asked by defendants :
    “If the jury believe from the evidence that the deed from Eugene Riehl to August Seibert, read in evidence, is genuine, the title of Seibert is a better title than that shown by the plaintiff, and in that case the jury should find for the defendants.”
    Exceptions were duly taken by defendants.

      It. M. Field and Kribben, for appellants.
    The real question here is, whether, in the proceedings in the suit by attaehment before the law commissioner, the plaintiff in that suit acquired a lien effectual to overreach the title of the defendants, and this question may properly be subdivided as follows : 1st. Had the law commissioner authority under the law to issue a writ of attachment against the real estate ? 2d. Supposing such general authority to exist, were the actual proceedings in this case effectual to bind the estate ?
    I. The argument of the respondent has been that the Law Commissioner’s Court, having been constituted a court of record, by the act of 1851, (Sess. Acts, 1851, p. 241,) is authorized, as a court of record, by section 1, of article 1, of the general practice act, (R. C. 1845, p. 804,) to issue the statutory writ of attachment against real estate on the application of a suitor. This construction overlooks the exception contained in that section, and the prohibition contained in the second section of the act referred to ; and is subject to the following objections :
    1st. By the common law, the authority of courts of record to issue writs of attachment against real estate did not exist. No such process was known. The custom of London authorized the attachment of debts ; and beyond this, nothing like our present process of attachment was known to the English law. It is certain that this peculiar process of attachment was not incident to courts of record by the common law.
    2d. The powers of courts of record are defined with great pains and particularity by the legislature, in 72 sections of the act in relation to courts. (R. C. 1845, tit. Courts — -judicial powers.) This act certainly confers no power on these courts to issue a writ of attachment against real estate.
    3d. A construction of the law to the effect that every court of record, as such, has authority to issue the statutory writ of attachment against real estate, leads to manifest absurdity. All the county courts, the courts of probate, the criminal courts, this Supreme court, and perhaps other courts, are constituted courts of record. It is agreed on all hands that none of these courts possess the power in question.
    4th. The general practice act of 1845 was not intended to confer authority on all courts of record to issue attachments, but simply to prescribe a rule of practice for courts of record having such authority. The particular clause of the statute relied on by the other side, therefore, amounts only to saying that the mode of commencing suits in courts of record is twofold, by summons and by attachment.
    6th. The same general practice act of 1845, in its second section, provides that a declaration shall, in the first instance, be in all cases filed in the clerk’s office. But the Law Commissioner had no clerk. The construction of the law adopted by the plaintiff below would oust the Law Commissioner of all jurisdiction by attachment or summons.
    6th. The attachment law provides for a notice by publication to an absent defendant to appear at the next term. But prior to 1853, the Law Commissioner had no terms. This law, then, as to this officer, was an impracticability.
    7th. By the act of 1851, the process of the Law Commissioner was to be issued to the sheriff or marshal of the county, or to any constable of St. Louis township. This township had then four constables. It is not decent to suppose that the legislature really intended that a farmer in Bonhomme or Mera-mec should be compelled to apply to all these officers in a distant township, to learn whether he had a clear title to his farm.
    8th. Under the attachment act, writs might be issued to dif- ° ferent counties. It is not perceived how this provision can be reconciled with the particular injunction of the special law, that the process of the Law Commissioner shall be directed to officers of St. Louis county.
    9th. The attachment law of 1845 is,- in terms, applicable only to the Circuit Court in respect to real estate. The legis - lature, however, at the same session, gave to the St. Louis Court of Common Pleas the same jurisdiction and authority, in this respect, by the following section: “ Sec. 8. The practice, process and proceedings, in the court hereby established, shall be the same in all respects as is or may be provided by the law for the government of the Circuit Court, except as herein otherwise specially provided.” At the same legislative session of 1845, the Hannibal Court of Common Pleas was created, and the provision just quoted was applied to that court. (Sess. Acts, 1845, p. 67, sec. 11) So, too, in respect to Cape Girardeau Court of Common Pleas. (Sess. Acts, 1851, p. 208.) Again, to the Weston Court of Common Pleas. (Sess. Acts, 1851, p. 205, sec. 15.) And also to St. Louis Land Court. (Sess. Acts, 1853, p. 91, sec. 7.) Now it is remarkable that this provision in the acts just mentioned is not to be found in any of the acts relating to the Law Commissioner; and it is conceived that this circumstance furnishes a strong argument against the pretended authority of the Law Commissioner to issue attachments against real estate.
    II. 1st. Notice of the attachment does not appear to have been given to the actual tenants of the lot in controversy. If it should be said on the other side, that, on an examination of the record, it does not appear that there were any actual tenants of the ground, under the debtor, at the time of the attachment, the answer is, that the debtor must, in such case, be regarded as being himself in actual possession, and he ought to have been notified of the attachment. No notice of the attachment to him appears. 2d. By the express terms of the attachment act, no valid attachment lien on real estate could be created until the officer making such attachment had stated such at-taehment and notice in his return. The actual time of the return by the officer of the writ of attachment nowhere appears on the record. The formal date is certainly no evidence that the writ was then returned. Up to the point of time when the writ of attachment was actually returned to the office of the Law Commissioner, there were no reasonable means of ascertaining that any property had been attached on the writ. In such state of things, the title of the appellants, as purchasers in good faith, ought to be regarded as perfect.

      Hart & Jecko, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

The questions submitted to us in this case are, whether the Law Commissioner’s Court of this county may proceed by attachment, and, if so, whether the proceedings here were sufficient to bind the estate of the defendant in the land from the 6th of February, 1854, (the time when the attachment was levied,) so as to conclude a purchaser from him subsequent to that time; and we think both questions must be answered in the affirmative.

1. We refer to the case of Watson against the County of St. Louis, (16 Mo. 91,) for an account of the legislation in relation to this court, from its origin to the year 1851; since which time two other acts have passed, both of the 24th of February, 1853 — one prescribing six terms a year, and the other making the marshal of St. Louis county the executive officer of the court. We may add here that the first section of the act of 1851 declares that the court shall be deemed, to all intents and purposes, a court of record, with all the powers and duties of such a court under the laws of the state; and by the second section, it is always open for the transaction of business, except on Sundays. In the third section, which contains the grant of jurisdiction, “power and jurisdiction” is given, among other things, “ in all actions founded upon contract, when the debt or balance due or damages claimed, exclusive of interest, shall not exceed one hundred and fifty dollars.”

In our system of jurisprudence there are no original writs in the English sense of the term. Here, jurisdiction is conferred upon the judicial tribunals by the constitution and laws of the state, and not by original writs, issued for that purpose. Our original writs are mere judicial process to subject the party to the jurisdiction of the court in the particular case, and this process, in ordinary cases, when the suit is for the redress of a civil injury between party and party, is either a summons to be served upon him or an attachment against his property. (Prac. Act, 1845, art. 1, sec. 1.) These are the modes prescribed by the general law of the land for the institution .of suits in courts of record, and therefore, when the Law Commissioner’s Court was made a court of recor!, and clothed with civil jurisdiction in suits between party and party for civil injuries, it acquired, of course, authority, and was bound, to proceed in administering the relief in the manner prescribed by the general law for the government of all such courts. There is not a question about the power of this court at common law, as a court of record, but about its authority an 1 obligation as a court of record, under the statute law of the state, to exercise its jurisdiction in granting the relief which it is authorized to administer according to the general law appliable to all courts of record in similar cases ; and we can not perceive any of the absurdities that it is supposed will result from this construction, nor any difficulty in the way of making it effectual.

2. Although there has been a good deal of discussion in the courts of justice (ex parte Foster, 2 Story’s Rep. 139; Davenfort, v. Tiltan, 10 Metc. 320; Kettridge v. Warren, 14 N. H. 509; Fisher v. Vose, 3 Robinson, La., 457) as to the character and extent of the lien acquired by an attachment, upon mesne process, it is agreed upon all hands to be a valid charge upon the land from the moment the attachment is levied, so that a sale upon the execution relates back to that time, and passes the title to the purchaser, discharged of all encumbrances and dispositions subsequently made by the debtor.

3. The only question, then, for us here is, whether this attachment was lawfully levied on the day indicated in the return. All that our statute (R. C. 1845, tit. Attachment, art. 1, sec. 12) prescribes on the subject is, that “ the officer shall briefly describe the same (the levying of the attachment) in his return, stating the quantity and situation of the land, and declare that he has attached all the right of the party in the same, and shall moreover give notice to the actual tenants, if any, at least ten days before the return day of the writ, and state the fact of such notice and the names of the tenants in his return.” Formerly, this was otherwise. Under the original attachment law of 1807, (1 Terr. Laws, 145,) it was the duty of the officer to go to the place and there declare in the presence of one or more creditable men of the neighborhood, that he attached the property; and, under the act of 1818, (1 Terr. Laws, 601,) he was required to state in his return the names of the persons in whose presence the attachment was levied. This continued to be the law down to the revision of 1835, when the requirement of any act of notoriety, upon the ground or elsewhere, in order'to give publicity to the attachment of the property, was altogether omitted, and the present provision adopted. And the practice, it is believed, has ever since been here, as it is said to be in Massachusetts, (Perrin v. Leverett, 13 Mass. 130,) for the officer, after ascertaining the description of the land, to levy the attachment, by an endorsement to that effect, upon the writ, made by him in his office, or wherever else he might happen to be, without going near the land or calling any witness to the act, which he was at liberty to do in secret. It does not seem to have been the policy of our legislature, in 1835, or since, to require any public notoriety to be given to the levying of the attachment; nor have they provided any guards against the abuses that may occur in these proceedings, on the part of executive officers, by reason of the secret manner in which they are allowed to execute the writs. It is obvious that no purchaser is safe against attachment liens unless he inquire for them of the proper officers, who may have such writs in their hands unreturned¡ or executed and returned to some remote county. This evil, however, can only be remedied by the legislature. It existed in the Massachusetts law down to the year 1885, when it was enacted, that, in order to render the attachment valid against a subsequent purchaser for value, or a subsequent attaching creditor, a copy of the writ and of the return of the attachment should be filed in the office of the clerk of the county where the land lay, within three days after the attachment, and that in case the attachment should take effect from the time it was made, but otherwise as against such purchasers and creditors only from the time the copy was so filed. (Rev. Stats. of Mass. 550, secs. 28, 29; Coffin v. Ray, 1 Metc. 212; Taylor v. Mix, 11 Pick. 846; Emerson v. Upton, 9 Pick. 168.) We, however, have no such provision, and under our law, the attachment, when levied, creates from that moment a valid charge upon the land against all persons ; and we suppose it must be taken at least prima facie to have been levied upon the day that the officer returns it to have been done ; and as he here returns it under date of the 6th of February, we must, of course, presume that it was done as early as that day.

4. It is objected, however, that in“order to render the attachment complete, so as to create the lien, it is not enough that the levy be endorsed on the writ, but that it is also necessary that notice of the attachment should be given to the actual tenant, if any, ten days before the return day, and that this fact, together with the name of the tenant, should be stated in the officer’s return. It is to be observed that this notice is not required to be given at the time the attachment is levied, and does not seem to be part of the ceremony required to constitute a levy of the attachment, and adopted in order to give public notice of the fact, but was intended for the benefit of the debt- or, by providing another security, where the proceeding might be without personal notice, against his land being taken from him by a judicial proceeding, of which he had no notice in fact. And we do not think that an omission of this character, in the return, even assuming that there was a tenant in possession, ought to be allowed to defeat the sale. Such a construction of these proceedings, founded upon a mere formal matter, without substance, in cases like the present, where there is personal notice of the proceeding, would not be for the interest, generally, of either debtor or creditor, however beneficially it might operate in a single case on account of the peculiar hardship of that case. The judgment is affirmed.


author: Rylaií», Judge,

text:
    The State, to the use of Tourville, Appellant, v. Roland & Lehman, Respondents.
    1. The settlements and_ allowances of the accounts of administrators, cura tors, and guardians, by the county or probate courts, are considered equivalent to judgments of a court of competent jurisdiction.

      2. An action at law, therefore, can not be maintained on a guardian’s bond for his failure to account for the rents and profits of real estate in his charge, where the record of his settlements before the county or probate court shows that he has duly accounted.
    3. If the guardian has fraudulently procured allowances in his favor to be made by the county or probate court, these allowances should be first set aside in an equitable proceeding instituted for that purpose; an action upon the bond may then be sustained.

      •Appeal from St. Louis Circuit Court.

    This was a suit to recover of defendants on account of a breach of the condition of a bond given by Roland as guardian of the relator, and Lehman as security. The guardianship was alleged, and the breach assigned was the alleged failure of defendant (Roland) to rent out all the tenements and real estate of said relator, and his failure to account to the probate court or to the relator himself for certain rents alleged to be due relator for a portion of said premises occupied and enjoyed by said Roland. The defendants, in their answer, allege that said Roland, with his own means, erected the dwelling on said premises ; that he was administrator of the estate of the relator’s father, from whom relator acquired title to said premises by descent, and that in his yearly accounts, as administrator and as guardian of the relator, he had fully accounted for the rents and profits, use and occupation of said real estate, &c.
    Plaintiff introduced evidence tending to prove that the defendant (Roland) occupied the premises from January 20th, 1841, to January 20th, 1852 ; also the value of the yearly rents, and that said premises were owned by said relator and his brother, who acquired the same by descent from their father, Toussaint Tourville, deceased.
    Defendant introduced evidence tending to prove his appointment as administrator of the estate of the father of said relator ; also his various settlements with the probate court from 1841 up to and including his final settlement in 1845, and also •his various settlements, as guardian of the relator, up to and including his final settlement, as guardian, after his letters had been revoked in 1852 ; by which settlements it appeared that said Roland had charged himself with rents, and that on said final settlement in 1852, a balance was found by the court in his favor and against said relator. Said relator was a minor at the time of said settlement.
    The relator offered to prove in rebuttal that there were improvements on the lot owned by the relator and his co-heir, other than the one occupied by said Roland, which were rented by said Roland; and that the annual rents of such improvements equalled or exceeded the amount of rent charged by said Roland to himself in said accounts, and that said charges were not wholly or in part for said Roland’s own use and occupation of the premises. This evidence the court excluded on the objection of defendants. The plaintiff duly excepted.-
    The court then gave the following instruction, on the motion of defendants : “If the jury believe from the evidence that the defendant was the administrator of Toussaint Tourville, deceased, then the records of the settlements of the defendant, as the administrator of T. Tourville, deceased, and the records of his settlements, as guardian of the relator in this case, are con-elusive in this ease upon tie plaintiff, provided tbe relator inherited the real estate described in the petition from said T. Tour-ville, deceased ; and if he so inherited, the jury should find for the defendant.” The plaintiff duly excepted to the giving of this instruction, and submitted to a nonsuit, with leave to move to set the same aside, which motion having been made and overruled, the case is brought here by appeal.

      Knox & Kellogg, for appellant.

      Krum & Harding, for respondent,
    cited Caldwell v. Lock-ridge, 9 Mo. 358; Jones v. Brinker, 20 Mo. 87; Strong v. Wilkson, 14 Mo. 116.
   Rylaií», Judge,

delivered the opinion of the court.

This ease comes fully within the principles of the decisions heretofore made by this court, in the cases of Oldham & Broadus v. Trimble, (15 Mo. Rep. 225,) and Jones v. Brinker (20 Mo. Rep. 87).

This suit is on a guardian’s bond, against the principal and Ms security. The defence rests upon the allowances and settlements of the guardian, made by him in the Probate Court of St. Louis eounty. These settlements and allowances show that the guardian has fully accounted for all of the personal estate in his hands belonging to his ward, and also for rents of the real estate; and that the guardian has overpaid and has brought Ms ward in debt.

The ward being the relator in this action, sought to introduce evidence before the lower court tending to show that the guardian had not fully accounted for all the rents and profits ; that is, sought to show mistake or omission or neglect in the guardian to charge himself with the use and occupation, for several years, of a dwelling belonging to the relator, the rent of which was worth one hundred and fifty dollars a year; the half of which rent, being between seven and eight hundred dollars, belonged rightfully to the relator. In other words, the relator offered to impeach in this action on the bond against the guardian and bis security, tbe justice and correctness of the allowances and settlements of the guardian, made by the Probate Court.

The lower court rejected this evidence, and instructed the jury that the settlements of the guardian of the relator were conclusive in this action.

This instruction is in accordance with the principles of the decisions of this court in the above cited cases. These settlements and allowances of administrators, curators and guardians are considered .equivalent to judgments of a court of .competent jurisdiction. They afford a defence to an action at law on the bond, and are considered as conclusive between the parties interested and concerned therein at law. Put a party interested is allowed to file his bill or petition against the guardian, charging him with having made false and fraudulent accounts, and having fraudulently procured allowances in his favor to be made to him by the county or Probate Court. When these settlements and allowances are set -aside for such fraudulent conduct on the part of the administrator or guardian, then a suit on the bond of such administrator or guardian can be prosecuted against principal and security, without being defeated by such settlements,, allowances and judgments. In the case of Jones v. Printer, this court said : “ Since we have now no chancery courts, and the distinction between courts of law and courts of equity has been abolished, the party seeking to falsify the allowances and accounts of the settlements of administrators, must, nevertheless, petition the Circuit Court as a court of law and equity for that purpose; and his petition must allege the same grounds now for the action and interference of the Circuit Court, as was formerly necessary to give the court of chancery jurisdiction.”' The party seeking to set aside the settlements and allowances in favor of his guardian, must charge that such allowances and settlements were'procured by fraudulent and false means and pretences unjustly to the injury of the estate and parties interested.

The judgment, in this case, must be affirmed;

the other judges concurring.


text:
    Aubuchon, Appellant, v. Lory, Respondent.
    1. An action can not be maintained by an executor or administrator as such to recover damages for trespass upon realty belonging to the estate of the testator or intestate. The action should be brought in the name of the heir or devisee.

      Appeal from St. Louis Land Court.
    This was a suit originally commenced before a justice of tbe peace. Tbe plaintiff, Cecille Aubucbon, styled berself in ber complaint “ Administratrix of the estate of Gr. Aubucbon, deceased,” and complained that defendant, Lory, “did take and move fence off tbe lands belonging to tbe estate of the said Gr. Aubucbon, deceased.” In the summons issued by tbe justice, plaintiff is styled “ executrix.” Tbe defendant pleaded title in himself, whereupon the cause was removed to tbe Land Court. In tbe Land Court, a motion to dismiss tbe suit was made on tbe ground that plaintiff could not, as executrix, sue for damages to tbe realty. On tbe bearing of this motion, although plaintiff, orally by attorney, alleged title in her individual right, tbe court -sustained the motion and dismissed tbe suit; whereupon plaintiff appealed.

      A. J. P. Garesché, for appellant.

      S. II. Gardner, for respondent.
   LEONARD, Judge,

delivered the opinion of tbe court.

Tbe plaintiff, as executrix, instituted an action in a justice’s court for an alleged trespass upon her testator’s land, committed since bis decease, which, on a plea of title, was removed into tbe Land Court, where it was dismissed upon the ground that the plaintiff could not maintain a suit in that capacity for tbe alleged wrong.

The judgment must be affirmed. Tbe real estate of a deceased person descends, upon bis death, to bis heirs, or passes to the devisees under his will. By tbe common law, tbe personal representative, whether executor or administrator, takes no interest in it, and our statute" gives him nothing hut the naked power to sell for the payment of debts, or to make short leases, under the direction of the county, court. The right to the possession, therefore, belongs to the heirs or devisees, and they only are the proper parties to sue for any injury to it. It is upon this principle that executors and administrators, as such, are not allowed to maintain actions of ejectment. The judgment is affirmed.


text:
    Easton, Appellant, v. Salisbury, Respondent.
    1. A location of a New Madrid certificate upon land reserved from sale, and a patent issuing therefor while the land remains so reserved, are entirely void, not voidable.
    2. Such a location therefore, when made upon land reserved from sale by reason of its being covered by a Spanish claim, does not become valid so soon as the bar against that claim becomes complete.
    3. A confirmation of a Spanish claim by the act of July 4th, 1836, will prevail over a New Madrid location and a patent, dated May 28th, 1827, both made while the land located upon was reserved from sale, although the bar against that claim became complete May 26, 1829, and remained so until July 9th, 1832, the date of the revival of the reservation from sale of the claims confirmed by the act of July 4th, 1836.

      Jlppeal from St. Louis Court of Common Pleas.
    This was an action in tbe nature of an action of ejectment, to recover possession of certain lots of ground, situate in what is called and known as Stoddard’s Addition. Plaintiff, Eas-ton, claimed title under a New Madrid location, made in the name of James Smith, upon which a patent, dated May 28th, 1827, had issued to the said Smith or his legal representatives. The defendant claimed title under a confirmation by act of Congress of July 4th, 1836, to the legal representatives of Mordecai Bell.
    The cause was tried by the court sitting as a jury, upon the following agreed statement of the facts : “ On the 9th of July, 1811, there were confirmed to James Smith, by the commissioners for the adjustment of titles to land in the territory of Missouri, lots nine and ten (9 and 10), containing two arpens of land in the village of Little Prairie, New Madrid county, Missouri. Afterwards, these lots, while still owned by said Smith, were materially injured by earthquakes, and proof thereof was made before the recorder of land titles at, St. Louis, on the 16th November, 1815; whereupon there was issued by said recorder to said James Smith a certificate of new location, (commonly called a New Madrid certificate,) numbered 159. On the 22d October, 1816, said Smith and wife conveyed to Rufus Easton the said two arpens in Little Prairie, and assigned to him the right to locate other lands under said certificate in lieu of the land so injured; and also conveyed to said Easton the land that might be located by means of said certificate. On November 16th, 1816, Easton gave notice to the surveyor general of said territory of Missouri, of the location of said certificate on a tract of land about two miles west of the city of St. Louis, and demanded a survey thereof. In March, 1818, a survey was made by the direction of the surveyor general, in pursuance of said selection, and was duly returned and approved by said surveyor general. Said survey is numbered 2491, and the land thereby designated embraces the land in controversy, and is within St. Louis township, in St. Louis county, Missouri. By virtue of the premises, Easton held said land claiming the same until 1826, when he conveyed the same to Wm. Russell. On the 20th May, 1827, the United States issued a patent on said location for said land to James Smith or his legal representatives. On the 19th January, 1889, said Wm. Russell assigned and conveyed all his interest in said land to J. Gr. Easton, who, on the 18th March, 1845, conveyed and assigned the same to plaintiff. Defendant is in possession of the land described in the petition, and the same is within the boundaries indicated by said survey and patent.

      “ On the 20th January, 1800, a concession was made by tbe Spanish lieutenant governor to one Mordecai Bell of 350 ar-pens of land, including the premises in controversy. The representatives' of Mordecai Bell, on 29th June, 1808, presented the claim for said land, together with a descriptive plat of survey thereof, to the board of commissioners for the adjustment of land titles in the territory of Missouri. The documents showing said claim and the derivative title from Mordecai Bell were duly recorded in 1808, by the recorder of land titles for the territory of Missouri; and on the 4th July, 1836, the United States confirmed said claim, according to said plat of survey, to the legal representatives of M. Bell; a survey of said confirmation was made by authority of the United States in -, and is numbered 3026; said survey embraces the land in dispute; and all the title of the confirmee, by the act of 1836, is in the defendant. The survey, number 2491, and also the patent, dated 28th May, 1827, are in due form of law; but defendant does not admit the authority of the officers of the United States to make the one or issue the other ; nor that the same were made or issued under any law. It is admitted that the land in controversy is worth more than two thousand dollars ; that if the court should be of opinion that the plaintiff is entitled to recover, it is agreed that the damages shall be fixed at one cent, and the monthly value of the premises at one dollar. Either party is at liberty to turn this case into a bill of exceptions, and thereon prosecute a writ of error or take an appeal to the Supreme Court of the state or of the United States. It is admitted that survey No. 3026 was made under the authority of the United States ; but the plaintiff may dispute the power of the United States as regards both the confirmation of 1836 and the survey No. 3026. It is admitted that the plaintiff had, at the commencement of this suit, all the title that was vested in said James Smith or his representatives, by the New Madrid location and patent above mentioned.”
    The court gave judgment for the defendant, Salisbury, and plaintiff, Easton, appealed to this court.

      Geyer and Gibson, for appellant.
    I. The title under -which the plaintiff claims was good against the government of the United States. (Stoddard v. Chambers, 2 How. 284 ; Mills v. Stoddard, 8 How. 364 ; Menard’s heirs v. Massey, 8 How. 310 ; Delauriere v. Emerson, 15 How. 525.)
    II. The plaintiff’s title being good against the government, good against all the world, except Bell’s representatives, became indefeasible by the barring of Bell’s claim in 1829, and could not be affected by a subsequent resurrection' of Bell’s claim.
    III. The cause at bar is distinguishable from the case of Mills v. Stoddard in this, that there Mills’ title was not complete until after the revival of the reservation. He had a mere equity. The government might, for any reason, or no reason at all, withhold his patent. Peltier’s patent was not issued until after the revival of the bar in 1832, and the court expressly decides that the act of 1836 related back beyond Peltier’s patent, and the court held that in that case the confirmation to Bell’s representatives was the better title; but here the title was complete before the passage of the act of 1832.
    IV. The land was subject to be disposed of by the government during the existence of the bar, from 1829 to 1832, to any person, or in any manner, and was then open to entry or location by any person. (Mills v. Stoddard, 8 How. 364.) Yet had the plaintiff applied for a patent during the bar (and the Supreme Court say that a patent issuing then would have incontestably passed a good title), he would have been properly answered by the officers of the government that two patents could never issue by the government for the same land under the same title and to the same person, and that as his patent was good against the government, and undoubtedly passed any title the government might have, a second patent could add no Strength to his claim.
    V. The issuing of the patent, in the case at bar, was a lawful act. It passed the title of the United States as against all the world, except Mordecai Bell’s representatives. . Had tbeir title never been confirmed, or bad tbeir claim been purchased by tbe patentee, or in any manner extinguished, it would have clearly passed an indefeasible title to tbe lan'd, and an extinguishment in tbe nature of a limitation in 1829 was as effectual as any other method of annulling Bell’s claim.
    YI. As tbe issuing of tbe patent was a legal act, and binding upon the United States, it was a sale of the land to J. Smith, or bis representatives, and was within tbe saving clause of tbe act of 4th July, 1836. Tbe words of tbe proviso are that, “ if it should be found that any tract confirmed or any part thereof bad been previously located by any other person or persons under any law of tbe United States, or bad been surveyed or sold by tbe United States, that act should confer no title on such lands, in opposition to tbe rights acquired by such location or purchase.”
    YII. In this case, tbe plaintiff has a patent which is conclusive of tbe regularity of all previous steps in the title. This title, we contend, is available against every person whose title originated since it was issued, and we say that tbe title now set up by defendant did, in fact, originate since tbe emanation of tbe patent, for there was a time when, as to us, tbe defendant’s claim was dead. The patent, in tbe interval between 1829 and 1832, was a location under a law of tbe United States. (Le Bois v. Brammel, 4 How. 456.)

      T. T. Gantt, for respondent,
    cited Stoddard v. Chambers, 2 How. 284; Mills v. Stoddard, 8 How. 345; Bissell v. Pen-rose, 8 How. 341.
   Scott, Judge,

delivered tbe opinion of tbe court.

In a conflict of title between a New Madrid location and a confirmation under tbe act of July 4th, 1836, as an original question, the inclination of tbe judgment of this court is well known. But tbe cases of Stoddard v. Chambers, (2 How. 284,) Mills v. Stoddard, (8 How. 345,) and Bissell v. Penrose, (8 How. 317,) in the Supreme Court of the United States, in our opinion, have settled this question. As the patent to the New Madrid claimant, in the cases of Stoddard v. Chambers, and Mills v. Stoddard, bore date at a period subsequent to the 9th July, 1832, the date of the act which revived the reservation of the claims confirmed by the act of 4th July, 1836, it is maintained that this case is distinguishable from them, inasmuch as the patent on the New Madrid certificate was dated May 28th, 1827 ; that the reservation of the Spanish concession expired on May 26th, 1829, and was not revived until July 3d, 1832; consequently, there was an interval during which the patent was valid against the United States, and being so, the same land could not be confirmed to another by any subsequent grant, by whatever authority it may have been made.

The error, in this argument, consists in the assumption that there was a period during which the patent on the New Madrid location was valid against the United States. During the interval to which reference has been made, a patent might lawfully have issued for the land confirmed by the act of 4th July, 1836, which would have prevailed against a confirmation by that act.' But as the party had a patent during this interval, it is maintained that he could not obtain another ; that it was unnecessary, and would have been an act of supererogation; that having a,patent, it would be hard to deprive him of his rights, because he did not unnecessarily apply for and .obtain another.

The ground on which we proceed may seem a technical one, but a departure from it would involve the violation of a principle which we do not feel ourselves at liberty to disregard. The cases to which reference has been made show that any location of the land, made by any officer of the government whilst it was reserved from sale, was purely void ; not voidable but void. Now a void act, when done, is as though it had not been done. Consequently the patent dated the 28th May, 1827, was a nullity. It was a blank, and could confer no right whatever. The plaintiff, then, can stand on no better ground than the defendant occupied in the case of Penrose v. Bissell. If the President of the United States should issue patents for lands where sale is not authorized by law, and afterwards those lands should be brought into market, on what principle could the patents, issued at a time when there was no authority for so doing, be held to be valid for passing title to the lands described in them ?

Independently of these considerations, the opinion of the Supreme Court of the United States, in the case of Mills v. Stoddard, (8 How. 365,) shows that the argument was made that a New Madrid location, if made on lands reserved from sale by reason of the Spanish claim, became valid so soon as the bar was complete against that claim, and it was met with the answer that the consequence does not seem to follow. If, during the bar, no act was done by the government to confirm the New Madrid claim, nor by the claimant to perfect his title, a removal o'f the bar would not prejudice any newly acquired right.

We see no difference in principle between the certificate of location and the patent. If the prohibition implied by the reservation is sufficient to destroy the validity of the certificate, there is no reason why it should not be equally fatal to a patent. The patent may, it is true, cure irregularities in making an entry, but the objection of a want of authority renders void all executive or ministerial acts, without regard to their solemnity. (Polk’s lessee v. Wendell, 9 Cranch, 88.) The reservation of the unconfirmed Spanish land claims was made by section 10 of the act of March 3d, 1811. That reservation continued in force, without interruption, until May 26th, 1829, when it expired. Now the patent on the New Madrid certificate issued on the 28th day of May, 1827, whilst the land which it covered was, by an act of congress, reserved from sale. The judgment will be affirmed,

with the concurrence of the other judges.


text:
    Peters, Plaintiff in Error v. The St. Louis and Iron Mountain Railroad Co., Defendant in Error.
    1. Sec. 12 of the “ Act to authorize the formation of railroad associations and to regulate the same,55 approved February 24th, 1853, (Sess. Acts, 1853, p. 128,) is applicable to the St. Louis and Iron Mountain Railroad Company, and to all other railroad companies existing under a law of the siate.
    2. It is constitutional in its application to railroad corporations previously created.

      jError to St. Louis Law Commissioner’s Court.

    Tbe petition in this cause is as follows : “ The plaintiff states that Emil Rebhan was a contractor with the defendant from some time previous to the first day of December, 1854, to the 20th of March, 1855, for the construction of that part of the said railroad, in said county of St. Louis, which lies between a point about two hundred feet south of the River des Peres" and McGilton’s stone quarry, and which is now, and has been for more than a year, in progress of construction; and that the following persons respectively performed for said contractor, as laborers, in constructing said railroad, the following services, at the following times, and for the following prices, rates and amounts, to-wit:

      “ The plaintiff further states, that each of said laborers gave notice, in writing, to the said company, within twenty days after the performance of ^the number of days’ labor for which the claim herein set forth is made; that is to say, each of said notices was given by said laborers respectively on the 28th day of March, 1855, and each of said notices stated the amounts respectively and number of days’ labor, and the time when said labor was performed for which each claim herein set forth is made, and the said name of said contractor, from whom due, and was signed by each of the laborers, or his attorney, giving said notice, were, on said 28th day of March, 1855, personally served on John Kelly, an engineer employed by said company, having charge of. the section of said road on which said labor was performed, as aforesaid; and duplicates of each of said notices are filed with the petition, that all of the respective amounts herein set forth, as aforesaid, as due to said laborers respectively, are yet unpaid; that said company thereby then and there became liable to pay each of said laborers their respective amounts herein set forth, as aforesaid, according to the provisions of the twelfth section of an act of the general assembly of the state of Missouri, entitled “ An act to authorize the formation of railroad associations, and to regulate the same,” approved February 24,1858 ; that after said 28th day of March, 1855, and after the said engineer was served, as aforesaid, and before the commencement of this suit, to-wit, on or about the 19th day of April, 1855, all of said laborers assigned and transferred to the plaintiff all their respective rights, titles and interests of, in and to said several amounts of indebtedness, hereinbefore set forth and described, which said assignments and transfers are filed with the petition ; and by virtue of said assignments and transfers, and in his own right, plaintiff is entitled to recover of the defendant the aggregate amount of one hundred and forty-nine dollars and fifty cents, which is yet due to the plaintiffs, and unpaid. The plaintiff, therefore, asks for judgment against the defendant, for said sum of one hundred and forty-nine dollars and fifty cents, and for lawful interest tbereon, and for costs of suit; and the plaintiff also asks for such other further and general relief in the premises as he may be lawfully entitled to.”
    This petition was demurred to, and the following grounds of demurrer assigned:
    “ Defendant says that plaintiff does not state facts sufficient to give him a cause of action, in this, that, 1. He does not allege that defendant is a company incorporated under the provisions of the “Act to authorize the formation of railroad associations, and to regulate the same,” approved 24th February, 1858. 2. Any law subjecting said defendant to the lien claimed by plaintiff is contrary to the constitution of the United States, as it would alter the charter previously granted defendant by this state, and take private property for public purposes. 8. The lien claimed by plaintiff is a personal privilege of the laborers, not assignable. 4. The petition does not set out, nor is there filed with it, the alleged contract of defendant with Rebhan. 5. Plaintiff has not filed with his petition the powers of attorney by which some of the laborers named in his petition are alleged to have máde agents to transfer their claims. 6. The instrument filed with the petition, as transfers by such laborers, are, on their faces, not transfers of the debts claimed by such laborers. 7. The notices are not directed to defendant.”
    The court sustained the demurrer, and gave judgment thereon for defendant, whereupon the cause was brought here by writ of error.
    Casselberry, for plaintiff in error.

      T. C. Reynolds, for defendant in error.
    I. The law of February 24th, 1858, relates exclusively to roads chartered under it, except where other roads are expressly named.
    H. If the St. Louis and Iron Mountain Railroad Company is embraced by the 12th section of the act of February, 1858, there is a violation of the charter of the company, and the provisions of said act are void as impairing the obligation of a contract. The charter of the company was irrepealable. (Sess, Acts, 1858, p. 296; Terrett y. Taylor, 9 Cranch, 48 ; Stur-gess y. Crowninshield, 4 Wheat. 122, N. Y. Bankrupt Law ; McMillan v. McNeal, ib. 209, same principle ; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, p. 59, note 6, 558, 557, 581, 663-4, 694, 702; Farms. & Mechs. Bank of Pa. y. Smith, 6 Wheat. 121, Insol. Law; 2 Gallison, 105, 142-3 ; Bonaparte y. Camden & Amboy R. R. Co. 1 Baldwin C. C. R. 219 ; Boyle v. Zacharie & Turner, 6 Pet. 348 ; Charles River Bridge v. Warren Bridge, 11 Pet. 420 ; Culder y. Bull, 3 Dallas, 386 ; Van Horn’s lessee y. Dorramee, 2 Dallas, 304; Green v. Biddle, 8 Wheat. 1 ; Satterlee v. Mathewson, 2 Pet. 380 ; Wilkinson v. Leland, ib. 657.)
   LEONARD, Judge,

delivered the opinion of the court.

The questions we have here to deal with are, whether the 12th section of the general railroad law of 24th February, 1853, is applicable to all railroad companies existing under the laws of this state, or is confined to such as are incorporated pursuant to that act; and supposing it to be applicable to all companies, then whether its provisions are constitutional, especially in reference to the present company, whose charter, it is said, is expressly exempted from legislative control.

The words of the section are general, and, in their literal meaning, equally applicable to every railroad company, no matter where or how created; whether before or after the passage of the act, or pursuant to it, or by express legislative grant; and if we adopt the grammatical interpretation which is based on the words of the law, they embrace the present and all other companies, both existing and future. The reason of the law, too, which was the necessity and propriety of securing to manual laborers, depending upon their daily labor for their daily bread, the fruits of their toil, was equally applicable to all railroad laborers, without distinction ; and it is quite impossible to suppose that the legislature intended to make one which should exclude from the benefit of the law the laborers upon all the main lines of railroad, then incorporated, and to embrace only laborers on roads to be afterwards undertaken under the general law ; and here, therefore, that interpretation that is based upon the spirit of the law, corresponds with the grammatical construction. Indeed, the only ground for doubting the propriety of this interpretation, is the fact, that the legislature have, in the last section of the act, expressly subjected all railroad companies, present and future, to certain specified sections of the law, and omitted to include in this enumeration the section now under consideration ; but we think this circumstance can not be allowed to control the otherwise palpable intention of the legislature, shown both by the words and the reason of the law.

In reference to the remaining questions, we remark, that this law is a copy of the New York general railroad law of 1850, and that the 12th section of our act corresponds literally with the 12th section of theirs; and although this has been under discussion in the courts of that state, where it is held to apply to laborers employed by sub-contractors, as well as to those employed by original contractors, yet its constitutional validity has never been questioned, (Kent v. New York Cent. R. R. Co. 2 Kernan, 628); nor, indeed, do we see any ground whatever for doing so. Undoubtedly our constitution, in common with all other American constitutions, secures private property against legislative confiscation; but there is nothing of that character in this law. It is substantially the provision of the St. Louis mechanics’ lien law, and other similar laws common everywhere, except that the security provided by those laws is á lien upon the specific property; here, it is a lien upon the party benefited by the labor, in the shape of a personal obligation to pay what in the other cases is secured only by the charge laid upon the property. It seems altogether equitable that these small sums that are falling due, from day to day, to laborers, for work done upon a road, under a contract with the company’s contractor, should be secured to them under proper restrictions — either by a lien upon the road itself, or by the more convenient personal liability of the corporation, which, in practice, is quite as safe to the laborer, and certainly not more burdensome to the company ; and these laws, operating prospectively, do not arbitrarily impose this liability, but, having declared beforehand under what circumstances the company shall become liable to the laborer, the obligation arises against them under the law out of the act of the person to whom they have let the work. Nor is there any hardship in it, as the company, at the time of contracting, can indemnify themselves against the liability to which their contractor may thus subject them, either by a bond of indemnity, or a stipulated delay in the payment of part of the contract price.

We remark, in conclusion, that the charter of the company is not altered or at all touched by subjecting them to this liability. All persons, corporations as well as natural persons, are subject to the general law of the land, and this company is not exempted from that obedience by the suggested exemption of its charter from legislative alteration. Here is no attempt to deprive them of their property, or to encroach upon their chartered privileges, but to subject them to a general law, made for the government of all persons of this class.

The judgment is reversed, and the cause remanded.


text:
    Harvey and wife, Appellants, v. Wickham et al., Respondents.
    1. Where in a suit commenced by attachment there is a personal service upon the defendant, and a general judgment rendered against him, such judgment and a sale on execution under it are noi rendered void by the fact that the affidavit upon which the attachment issued may have been defective.
    2. No entry upon or actual possession of the wife’s land after a descent cast is necessary to entitle the husband to curtesy. (Reaume v. Chambers, 22 Mo, 36, affirmed.)

      3. The act of March 5th, 1849, (Sess. Acts,' 1849, p. 67,) exempting certain property of the wife from execution for certain debts and liabilities of the husband, does not apply to debts contracted before its passage. (Cunningham v. Gray, 20 Mo. 170, affirmed.)
    4. Quere: Whether, under said act, the estate of the husband in his wife’s land, acquired by virtue of the marriage, can he sold under execution for the payment of his debts. (Schneider v. Staihr, 20 Mo. 269, as to this . point questioned.) *

      Appeal from St. Louis Land Court.

    This was an action brought by Joseph H. Harvey and Louisa Harvey, his wife, to recover possession of certain lots in the town of Bremen. The plaintiffs claimed possession in right of the wife as one of the heirsv-at law of Nicholas N. Destrehan, who died seized of the lots in controversy, June 16th, 1848. The lots in controversy were allotted to Mrs. Harvey in a partition suit, as her portion. The report of the commissioners making the allotment was confirmed December 16th, 1851.
    Defendant, Wickham, under whom the other defendant held as tenant, in his answer claimed a right to the possession by virtue of a deed from the sheriff of St. Louis county to himself, dated December 10th, 1852.
    Upon the trial, plaintiffs proved a derivation of title in fee from the said Nicholas N. Destrehan, to the plaintiff, Mrs. Harvey; the marriage of plaintiffs in 1846, and the birth of issue prior to the death of N. N. Destrehan, in June, 1848 ; the proceedings in partition, showing the allotment of the lots in controversy to the plaintiff, Mrs. Harvey.
    Defendants then offered in evidence a transcript of the record of the proceedings in a suit instituted by attachment in the St. Louis Court of Common Pleas, wherein one J. W. Flint was plaintiff, and J. H. Harvey, plaintiff in this action, was defendant. The suit was upon two promissory notes, one dated December 9th, 1845, payable in thirty days, and the other, -December 31st, 1845, payable on demand. In this suit, wherein all the interest of the said J. H. Harvey in the lots in question was levied on under the attachment, there was personal service bad upon the said Harvey, and a general judgment was rendered against him, September 24th, 1852 ; under which an execution issued, and was levied upon the interest of the said Harvey in the lots in controversy. This interest was sold, and defendant, Wickham, became the purchaser, and obtained a deed from the sheriff conveying to said Wickham all the interest of the said J. H. Harvey in the lots in controversy.
    The plaintiffs objected to the admission of the transcript, on the ground, first, that the affidavit upon which the attachment issued was insufficient to authorize the issuing of the attachment ; and secondly, that the property in question, being the property of the wife in her own right, was not subject to levy and sale for the payment of the husband’s debts, contracted before the marriage and before the wife became entitled to, or came into possession of, said property. The objection was overruled, and the transcript admitted.
    Plaintiffs then asked the following instructions : “1. If the jury believe from the evidence, that the property in question was owned by Nicholas N. Destrehan, in his life-time, and descended to Louisa Harvey, as heir of said Destrehan, at the time of his decease in 1848, and no possession of the same was taken by the said Harvey or his wife until the partition of the same in December, 1851, then said Jos. H. Harvey had no interest or title in said property prior to that time, subject to levy and sale under execution against him alone, for the satisfaction of any debts created prior to the marriage of said Harvey and wife.” “ 2. If the jury believe from the evidence, that the said Joseph H. Harvey and wife, and Joseph W. Flint were all residents of. the state of Louisiana at the time the notes were given, upon which the judgment of said Flint against said Harvey, used in evidence in this case, was had, then said Flint was not protected by the laws of the state of Missouri before said suit was brought in St. Louis county, Missouri, in said suit of said Flint against said Harvey.” These instructions were refused by the court, and exceptions were duly taken by plaintiff.
    The following instructions, asked.by defendants, were given by the court: “1. The proceedings in partition vested the fee pf the premises in the plaintiffs, and if J. H. Harvey had issue of his wife Louisa, and also had possession of said premises during coverture, the plaintiffs are not entitled to recover. ” “ 2. If the jury find that the debt upon which the judgment forming the basis of the sheriff’s deed, read in evidence, was created prior to the 5th of March, 1849, the act of that date can not affect it, and the interest of Harvey in his wife’s property in question was liable to be taken in execution and sold to satisfy said debts.”
    The jury rendered a verdict for defendants, and judgment,was accordingly given for them. Plaintiffs appealed.

      C, C. McLitre, for appellants.

      Wickham & Snead, for respondents.
   Scott, Judge,

delivered the opinion of the court.

1. As there was personal service on the defendant, Harvey, in the suit of Flint against him, and a general judgment, and as the execution was founded on that judgment, we can not perceive the force of the objection growing out of the alleged defect in the affidavit on which the attachment was sued out, which was the original process in that action. The proceedings in the suit referred to, including the levy and sale under the execution, do not rely for a support on the attachment, but on the personal service of the writ, and the general judgment following. The fact that the lands had been attached in the suit did not restrain the sheriff from levying on them by virtue of the execution under the general judgment. The mere recital in the sheriff’s deed that the lands thereby conveyed had been attached in the suit, is a mere matter of description, and does not show that the sheriff relied for authority in making the sale on the attachment. Both the judgment and the execution show the contrary. (R. C. 1845, tit. Attachment, art-. 1, § 11, 59, p. 186, 145.)

2. This court, in the case of Reaume v. Chambers, (22 Mo. 36,) held that after a descent cast no entry or actual possession was necessary in order to entitle a husband to curtesy in his wife’s land.

3. The prohibition against laws impairing the obligation of contracts is found in the constitution of the United States. The obligation to perform a contract is coeval with the undertaking to perform it. It originates with the contract itself ; operates anterior to the time of performance. The second instruction asked by the plaintiff was, that if Harvey and wife and J. W. Flint were all residents of the state of Louisiana at the time the notes were given upon which the judgment of said Flint against said Harvey, used in evidence in this case, was had, then said Flint was not protected by the laws of the state of Missouri before said suit was brought in St. Louis county, Missouri, in said suit of said Flint against said Harvey. If this instruction is understood, it seems to convey the idea that the laws of a State have no extra-territorial validity. We held, in the case of Gray v. Cunningham, (20 Mo. 170,) that the act of March 5th, 1849, exempting certain property of married women from execution for the debts of their husbands, did not apply to debts contracted before its passage. The restriction against laws impairing the obligation of contracts being found in the constitution of the United States, if a creditor, who resides in a state, is protected from the operation of a law which injuriously affects him, it would be difficult to give a reason why a creditor, residing out of the state, is not also protected. The restriction was designed more for the protection of non-residents than residents. It would be much more reasonable that a state should pass laws impairing the obligation of contracts of her own citizens than of the contracts of those who are not subject to her laws. But if the law was only designed for residents, how do Harvey and his wife seek protection under it? If it does not protect Flint because he is a non-resident, why should it protect Harvey, who is also a non-resident? It is obvious that the whole argument, drawn from the want of extra-territorial operation of laws, if there is any thing in it, is much stronger against Harvey than against Flint. But there can be no doubt on this subject under tbe constitution of tbe Uioited States.

4. Notwithstanding tbe remark in the case of Schneider v. Staihr, (20 Mo. 271,) it may well be questioned whether, under the act of March 5, 1849, the husband’s estate in his wife’s land, by virtue of the marriage, can be sold under execution for the payment of his debts. But that question does not arise here, as the debt, -on which the judgment and execution are founded, was in existence before the passage of the act. With the concurrence of the other judges, the judgment will be affirmed.