author: Ryland, Judge,

text:
    Missouri State Mutual Fire & Marine Insurance Co., Appellant, v. Spore, Respondent.
    1. By an act of incorporation of a mutual insurance company, (sess. acts, 1849, p. 381, sec. 11,) it was provided that, in case of loss hy fire sustained by any member, the directors should publish a notice of the sums assessed upon the several members, which sums were required to be in proportion to the original amounts of the premium notes of the members, and to be paid within thirty days next after the publication of the notice ; and also that “ if any member shall, for the space of thirty days after such notice, neglect or refuse to pay the sum assessed upon him as his proportion of any sum as aforesaid, in such case the directors may sue and recover the whole amount of his deposite note or notes, with costs of suit.” Held, in a suit on certain deposite notes, upon which there had been various assessments, that an allegation in the petition that “the defendant, though often requested, has refused to pay said assessment or any part thereof, and the time limited for the payment thereof by the by-laws has long since elapsed; that by the neglect and refusal of said defendant to pay said assessment, the whole amount of his said premium notes has become due and payable agreeably to the provisions of the act of incorporation of said company,” was sufficient to bring the case within the above provision of the act of incorporation authorizing a recovery of the whole amount of the deposite notes.

      Appeal from St. Louis Law Commissioner's Court.

    The facts sufficiently appear in the opinion of the court.

      Skinner, for appellant.

      Carroll, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This is a suit brought by the plaintiff to recover of the defendant the amount of certain premium notes, executed by defendant to plaintiff. The petition of plaintiff sets forth the making and delivery of the notes by defendant to plaintiff for and in consideration of two certain policies of insurance issued by plaintiff to defendant, by which notes the defendant promised to pay to said plaintiff or their treasurer, for the time being, by one note, ninety-six dollars, and by the other fifty-two dollars, in such portions and at such times as the directors of said company, the plaintiff, might, agreeably to th.eir act of incorporation, require ; the note for ninety-six dollars being dated on or about 30th October, 1850 ; and the note for fifty-two dollars, dated 8th October, 1849. It is also alleged in the petition that plaintiff, having sustained loss and damage by fire, and having incurred many necessary and unavoidable expenses, the directors ascertained the amount of the same ; and on January 1st, A. D. 1853, and on September 1st, A. D. 1854, settled and determined the sums to be paid by the members of said company, as their respective portions of said loss and damage by fire ; that the defendant was and still is a member of said company ; that the assessments were made on each member in proportion to the amount of his original premium notes ; that the assessments were duly made in accordance with the act of incorporation of said company ; that on one note the assessments against the defendant amounted to $11 02, and on the other note, $20 16 — amounting altogether to the sum of $31 18 ; that due notice of said assessments was given by publication, as prescribed by the by-laws of said company ; that, nevertheless, the defendant, though often requested, has refused to pay said assessments or any part of them, and the time limited for the payment thereof, by the by-laws, has long since elapsed ; that by the refusal and neglect of said defendant to pay said assessments, the whole amount of his said premium notes has become due and payable agreeably to the provisions of the act of incorporation of said company. The petition then mentions the various credits endorsed on said notes, leaving the balance due on one note, $14 25, and on the other, $61 60 — making together the sum of $75 80, and asks judgment for the amount.

The defendant, in his answer, admits the making of the notes as set forth in the plaintiff’s petition; admits the assessments were regularly made, and notice thereof duly given according to the by-laws of the corporation; but avers that he tendered the full amount of said assessments, interest and costs of suit, amounting to $40 18, and prays to be discharged by the payment of that sum only, and denies owing the sum of seventy-five dollars and eighty cents.

The cause was submitted to the law commissioner without a jury, who made the following finding of facts, to-wit: “ The defendant, on or about the 30th October, 1850, executed and delivered to the plaintiff his certain promissory note for the sum of ninety-six dollars, and on October 8th, 1849, his promissory note for the sum of fifty-two dollars, being premium notes for two certain policies of insurance issued by the plaintiff to defendant, by which said notes the defendant promised to pay to plaintiff the said respective sums of ninety-six dollars and fifty-two dollars, in such porthns and at such times as the directors of said company might, agreeably to their act of incorporation, require; that the said company, having sustained loss and damage by fire, and incurred many necessary and unavoidable expenses, the said directors ascertained the amount of the same; on the 1st January, 1853, and 1st September, 1854, settled and determined the sums to be paid by the members of said company, including the defendant, who then was and still is a member of said company, as their respective portions of said loss and damage by fire and of necessary expenses ; and said sums so assessed being in proportion to the original amount 'of their respective premium notes ; the said assessments having been duly made in accordance with the act of incorporation of said company, and due notice thereof was given by publication as prescribed by the by-laws of said company ; that after said assessments were made and notice thereof given as aforesaid, and the time limited for the payment thereof after said notice, according to the by-laws of said company, had expired, the defendant neglected and refused to pay said assessments or any part thereof; that the amount of said assessments was $31 18 costs ; that the defendant, since the commencement of this suit, tendered to the plaintiff the said sum of $31 18 cents, together with interest thereon, to-wit, the sum of five dollars, and four dollars for the costs that had accrued herein prior to the time of said tender.”

Upon this finding, the court declared the law to be as follows : “ That, to entitle the plaintiff to recover the remainder of the said premium notes, he should allege in his petition and establish a strict compliance with the provisions of the charter of incorporation of said company. The plaintiff has not alleged in his petition that the defendant refused to pay the sums assessed upon him after the time limited, to-wit, thirty days after notice of such assessment was published, as is provided by the 11th section of the act of incorporation of the company, as he ought to have done ; but alleges that the time limited for the payment thereof by the by-laws had long since elapsed. The petition is not within the terms of the act of incorporation.” The court rendered judgment for the assessments and interest, being $82 92, and for costs. The plaintiff thereupon filed his motion for a review, which being overruled, he excepted, and brings the case here by appeal.

By the 11th section of the act of incorporation, (Sess. Acts, 1849, p. 381,) it is the duty of the directors to “ settle and determine the sum to be paid by the several members thereof as their respective proportion of said loss, and publish'the same in such manner as they see fit, or as the by-laws may have prescribed; and the sum to be paid by each member shall always be in proportion to the original amount of his premium note or notes, and shall be paid to the treasurer within thirty days next after the publication of said notice ; and if any member shall, for the space of thirty days after such notice, refuse or neglect to pay the sum assessed upon him as his proportion of any sum as aforesaid, in such case the directors may sue and recover the whole amount of his deposite note or notes, with costs of suit,” &c.

The breach alleged is as follows: £i Nevertheless, the defendant, though often requested, has refused to pay said assignment or any part thereof, and the time limited for the payment thereof, by the by-laws, has long since elapsed ; by the neglect and refusal of said defendant to pay said assessment, the whole amount of his said premium notes has become due and payable agreeably to tbe provisions of the act of incorporation of said company. ” Although the plaintiff might have been more special and particular in stating the neglect, and refusal to pay the assessments after thirty days had expired after the publication of the notice, yet we think it is substantially stated, and the finding of the court being more particular even than the statement in the petition would have warranted the court in giving judgment for the whole amount due on the notes.

The court below seems to think that as the averment of the petitioner was not that the time limited for payment by the act of incorporation of the company had long since elapsed, but that “ the time limited by the by-laws of the company had long since elapsedthat therefore the petition is not within terms of the act of incorporation. This is a very nice distinction ; but it is not to be presumed that the company would require a shorter time, after publication of notice, than the act itself required in their by-laws. The by-laws might have granted longer time; but it is not to be presumed that the company would violate its charter by its by-laws.

The finding of the court below would support a judgment for the full amount due on the premium notes ; and it is error to give judgment only for the assessments. The judgment is reversed, and the cause remanded, with directions to enter up judgment for the plaintiff for the full amount due on the premium notes.

The other judges concurring.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Wynne, Respondent, v. Aubuchon, Appellant.
    1. Matters of record can not be proved by parol; where, therefore, in a suit for the possession of a mare, it was attempted to base a defence to the action upon the fact that the mare in controvers}' had been taken out of the possession of plaintiff and put in that of the defendant by virtue of a writ issued by a magistrate; held, that a copy of the record of proceedings should have been produced.

      Appeal from St. Louis Law Commissioner’s Court.

    This was a suit for the possession of a mare alleged to belong to plaintiff. Upon the trial, at April term, 1855, the plaintiff introduced testimony showing a derivation of title by various intermediate transfers from one Rey, who was in possession of said mare in 1849 or 1850. Some of plaintiff’s witnesses stated that the mare had been taken by defendant out of the possession of plaintiff by virtue of a writ issued by a magistrate. At the close of plaintiff’s case, the defendant asked the following instruction, which was refused by the court: “If the jury believe from the evidence that the mare sued for was taken out of plaintiff’s possession and placed in that of defendant by virtue of a writ issued by a magistrate, the magistrate, in the absence of any proof to the contrary, will be presumed to have acted legally, and defendant’s possession, in consequence, is legal, and plaintiff can only recover because defendant’s possession is illegal.” To the refusal of this instruction defendant excepted.
    Defendant then gave evidence tending to show possession-and ownership of the mare in defendant in 1849 or 1850, and, a loss' of her by theft or her straying about that time. Defendant then asked the following instruction, which was refused : “-Possession of personal property is prima facie evidence of title, and the jury, to find for plaintiff, must believe from the evidence that the mare in question was unlawfully or without the authority of plaintiff taken from him by defendant.

      Garesché and Farish, for appellant.

      JV. McDonald, for respondent.
   Scott, Judge,

delivered the opinion of the court.

There was no error in refusing the instruction asked, by the defendant, as it assumed the identity of the mare claimed by the plaintiff with that alleged to belong to - the defendant. Whether the mare claimed by the plaintiff was the same alleged to belong to the defendant was the very matter in dispute, and the court properly refused an instruction which assumed such to be the fact.

Matters of record can not be proved by parol. If there was any legal process or proceedings by which the mare was taken from the plaintiff and put into the possession of the defendant, a copy of such proceedings should have been produced. The declaration of a witness that there were such proceedings, was no such evidence as would have warranted an instruction or supported a claim founded on them.

The other judges concurring, the judgment is affirmed.


author: Leonard, Judge,

text:
    Simonds, Respondent, v. Oliver, Appellant.
    1. It is not erroneous for the courts of this state to refuse, when called upon generally to do so, to draft and give instructions to juries ; they may confine their action in this particular to the giving or refusing of instructions specifically asked by the respective parties.

      Appeal from St. Louis Law Commissioner’s Court.

    This was an action originally commenced before a justice of the peace, to recover twenty dollars, alleged to have been overpaid by plaintiff in making change. Plaintiff obtained judgment before the justice, and the cause was appealed to the law commissioner’s court.
    Upon the trial before the law commissioner’s court, the plaintiff introduced testimony tending to prove that defendant (Oliver) purchased of plaintiff a lamp at the price of three dollars ; that in payment thereof he offered plaintiff a twenty dollar gold piece ; that plaintiff, not' having the specie to give in change, defendant then offered him a twenty dollar bill; that plaintiff gave back to defendant the twenty dollar bill, and seventeen dollars in change. There was no evidence tending to prove that the twenty dollar gold piece ever came to the possession of plaintiff. Defendant, whose admissions constituted the only testimony introduced, declared that he had left the gold piece upon the counter of plaintiff.
    The defendant asked the following instructions: “ 1. If the jury believe from the evidence, that the plaintiff has failed to prove that there was an actual carrying away of the twenty dollar gold piece in question, then the jury will find for the defendant. 2. If the jury believe from the evidence, that the plaintiff has failed to prove an actual deficit on his part, then the jury will find for the defendant.”
    The court refused to give the instructions asked. Defendant excepted, and further asked the court to instruct the jury in some manner, without specifying any particular instruction to be given. The court failed to do so, and the cause was submitted to the jury entirely without instructions. The jury found for plaintiff, and judgment was accordingly given for him. Defendant appealed to this court.

      Garesché and Parish, for appellant,
    cited 3 Mo. 14; 19 Mo. 102 ; 1 Mo. 473.

      PL. M. Gardner, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

There is no error in the record, and it is difficult to imagine why the case was brought here. The controversy turned exclusively upon a single question of fact, and this was submitted to the jury who fairly passed upon it, after hearing all the evidence tendered by either party.

The specific instructions asked by the defendant were improper, and rightly refused. The English custom of summing up the evidence, and charging the jury as to the whole law of the case, does not prevail in this state; and, we believe, never has prevailed here. In our practice, each party asks specific instructions upon such points as he may deem material, and the courts generally submit the case to the jury upon these instructions, unless they think proper to give others of their own sug-gestión, as a substitute, or in addition. However desirable it undoubtedly is that the courts, whose duty it is to see that justice is administered according to law, should take upon themselves the active duty of seeing that the jury are properly instructed upon the law which they must apply to the facts in making up their verdict, they have never been considered bound to charge otherwise than as specifically asked, and, accordingly, the refusal to do so has never been treated here as an error for which the judgment could be reversed.

Let the judgment be affirmed.


author: Ryland,

text:
    Richardson, Appellant, v. Watson, Respondent.
    1. Where A. in suit before a justice of the peace, attached certain goods as the property of B., the defendant, and C. interpleaded and claimed the property attached as his own, and the property attached is, under the issue thus raised, adjudged by the justice to be the property of B.; held, that this judgment is a bar to a suit by C. for the possession of the goods, against the constable in possession of the goods under the writ of attachment.

      Appeal from St. Louis Court of Common Pleas.

    The opinion of the court contains a sufficiently full statement of the facts.

      C. D. Drake, for appellant.
    I. A judgment is no bar to another action unless the same matter were in issue in both cases. The issue in this case and that in the case before the justiee, are not the same. There, the question raised was, whether the paper was the property of Richardson. Here, his property is admitted, and the question is, whether the respondent unlawfully detained it. Therefore the judgment of the justice is no defence to this action. (1 Phillips’ Ev. part 2, ch. 2, sec. 1, p. 321 ; 1 Stark. Ev. 221 ; Buller’s Nisi Prius, 233 a ; Smith v. Sherwood, 4 Conn. 276 ; Cleaton V. Cham-bliss, 6 Randolph, 86 ; Ryer v. Atwater, 5 Day, 431.)

      II. The transcript of the justice does not sustain the allegation of the answer that the justice “ considered and adjudged the said paper to be the property of James Graham and not the property of Charles Richardson.” No such judgment was rendered by the justice. He adjudged the paper to be the property of Graham, but did not adjudge that it was not the property of Richardson. The paper might have been the property of both — a general property in one and a special property in the other ; therefore his finding that it was Graham’s was not a finding that it was not Richardson’s. (JBennett v. Holmes, 1 Dev. & Bat.' 486.)
    III. Supposing the previous positions untenable, the defendant can not set up the justice’s judgment as a bar to this action, because he was no party to it. (1 Greenl. Ev. § 523 ; Allen v. Hall, 1 A. K. Marshall, 526; Glossop v. Pole, 3 Maulé & Selwyn, 175.)
    IY. Nor was he privy to it, unless the court is prepared to lay down the rule that every officer executing an attachment is a privy to the action, and concluded by the judgment rendered in it. (1 Greenl. Ev. § 189, 523.)
    Y. A judgment can not be used as evidence against a party where the opposite judgment would not have been evidence for him ; in other words, the benefit to be derived from it must be mutual. Tested by this principle, the respondent could not give the justice’s judgment in evidence as a bar to this action, for he was in no sense bound by it. If the justice had adjudged the paper to be Richardson’s, and the respondent had, notwithstanding, sold it, and Richardson had then sued him for its value, would the judgment have been conclusive against the respondent as to Richardson’s property, so as to dispense with other evidence of that fact ? Or would such judgment preclude the respondent from proving that the property was Graham’s or another’s ? Certainly not, for the constable would not be considered, in any sense, a party or privy to the judgment. How, then, when the judgment was the other way, does he become entitled to plead it as conclusive against Richardson ? (Bellv. Hoagland, 15 Mo. 860 ; Latkow v. Earner, 2 H. Black. 437; Burton v. Hazzard, 4 Harrington, 100 ; 1 Starkie on Ev. 220 ; 1 Greenl. Ev. § 524.)

      Dedman, for respondent.
   Ryland,

Judge, delivered the opinion of the court.

This was a suit for a quantity of wrapping paper, brought by plaintiff against Watson, the plaintiff claiming' to be the owner of the paper. The defendant answered, setting up a special property in himself as constable of St. Louis township, in virtue of a levy made under a writ of attachment issued by a justice of the peace, in favor of one Carl, against James Graham; and also a former judgment rendered by the justice who issued the attachment, on a claim of property made before him by Richardson, the plaintiff, in which judgment the justice “ considered and adjudged the said paper to be the property of said James Graham, and not the property of Charles Richardson, the present plaintiff, and that the said property was subject to the attachment of said Carl.”

The* facts were, agreed to, and are as follows : “ The defendant? on the 9th of December, 1854, was a constable of St. Louis county, and as such attached the property in dispute under an attachment in favor of James M. Carl v. James Graham. The plaintiff (Richardson) went before Edward E. Allen, the justice of the peace who issued the attachment under which the defendant seized the property, and claimed the property to be his ; and on a trial of his claim, the justice rendered a judgment that the property was the property of James Graham, the attachment defendant. It is agreed that the transcript from the docket of the justice, filed with the defendant’s answer, shall be considered as in evidence in this cause, without being set out herein in full. It is further agreed, that no appeal was taken from the judgment rendered by the justice on the claim of said Richardson.

“ It is further agreed, that, at the time said property was attached, and thence up to the time the suit was brought, it was tie property of the plaintiff (Richardson) and not of James Graham; and that during the interval between the attachment of it and the institution of this suit, said Richardson acquired no other or further title to it than that which he had when it was attached. It is further agreed, that the defendant had no other title to the property than that which he had as constable as aforesaid, acting under the aforesaid attachment.

“ On this statement of facts, the defendant claims that the judgment of the justice, on the claim of property, made before him by the plaintiff, Richardson, is a bar to this action, and so he sets it up, and it is agreed to submit this question to the court for its judgment.

“ If the court should be of opinion that said judgment of the justice is a bar to this action, and can be set up as such by the defendant, then the judgment shall be entered for the defendant and a return of the property to him.

“ If, on the other hand, the court should be of the opinion that said judgment is not a bar to this action, judgment shall be entered for the plaintiff, with one cent damages and costs.”

The court below rendered judgment for the defendant, and the plaintiff brings the case here by appeal.

From the facts agreed to it is admitted that Richardson now has no other or further title to the property than he had when he filed his claim thereto by interplea. The question before us is whether the matter in controversy between these parties has been heretofore adjudicated upon by a court of competent authority, and whether such judgment binds the plaintiff in this action. '

We have no hesitation in saying that the judgment below was for the proper party on the agreed statement of facts. ' The subject matter in dispute is as between them “ res adjudicata.” The plaintiff, to get clear of that judgment, ought to have taken his appeal. It was competent for the court before which his interplea was pending to decide on the ownership of the attached property, and having decided, the plaintiff is bound by such decision; and if he rests under it without appealing, such judgment will and ought to bar any future action by plaintiff against the constable for the property; and when sued by claimant, it is competent for the constable to use such judgment in his defence. (Richardson v. Jones, 16 Mo. 177.)

Indeed,'the argument of the counsel for the appellant was under the pressure of this view of the subject; for he mainly depended upon a critical construction of the defendant’s answer, and an admission in the agreed statement of facts — that the property was the property of Richardson now — that is, when the statement was made. We do not assent to his views on either the answer or the agreed statement of facts. It was not the design of the defendant to admit away his rights, nor do we think he has done so; the facts clearly, without doubt, show that Richardson, the plaintiff, has acquired no further or other title to the paper than that which he had at the trial of the in-terplea ; and judgment is conclusive against him, that at that time the property was the property of Graham.

Upon the whole record, then, it is clear to us that the judgment below was given for the right party; and no error appearing calling for its reversal, it must be affirmed ;

the other judges concurring.


text:
    Gamache, Respondent, v. Grimm et al., Appellants.
    1. Where a promissory note is given for the construction of a house, the fact that the house fell down in consequence of the use by plaintiff, the payee of the note, of bad material in its construction, and of the unslrillfulnes of the workmanship, may be set up by the maker of the note as a partial failure of consideration.

      ^Appeal from St. Louis Circuit Court.

    This was an action on a promissory note for $535. The consideration of the note was the erection of a house by plaintiff for defendant. The defendant set up in his anwer a failure of tbe consideration of tbe note, in tbis, that tbe house constructed by plaintiff for defendant, bad, from tbe use of inferior materials, and tbe unworkmanlike manner in which it bad been constructed, fallen down and become utterly worthless. Defendant also set up as a partial defence, that thirty-five dollars of tbe amount of tbe note was usuriously incorporated into tbe note as tbe interest for six months upon five hundred dollars, tbe true amount due.
    There was evidence tending to support tbe defence relied on by defendant. Tbe court, on its own motion, gave, among other instructions, tbe following : “6. If tbe bouse was constructed by tbe plaintiff in an unsubstantial and unworkmanlike manner, and of inferior or bad materials ; or if either the work or materials were not such as were contracted for; and in consequence thereof tbe bouse fell down- and became valueless to tbe defendants, as stated in tbe answer, tbe jury will find for tbe defendants ; otherwise they will find for tbe plaintiff.” To tbe giving of tbis instruction defendant excepted.
    Tbe following instruction, among others, was asked by defendant, and refused by tbe court: “2. Tbe court instructs tbe jury that if they believe from tbe evidence that tbe defendants employed tbe plaintiff to build them a brick dwelling bouse, beer saloon and dancing hall on their own land, in tbe town of Carondelet, for tbe sum of one thousand dollars, tbe half to be paid during tbe progress of tbe building, and tbe other half ($500) to be paid in six months after the completion of said building, and that in four months thereafter tbe bouse fell down in consequence of bad materials used, and tbe unskillful workmanship in tbe building of the same, and became partially worthless to tbe defendants, then the jury will deduct from tbe face of tbe note sued upon tbe amount of tbe damages tbe defendants sustained.” Tbe jury rendered a verdict in favor of plaintiff. Defendants appealed.
    Woods, for appellants.

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

delivered the opinion of tlie court.

Under the answer set up by the defendants, it was competent for them to show in evidence a partial.failure of consideration. The instruction (numbered 6), given by the court, seems to inculcate the idea, that, unless there was a total failure of consideration, there must necessarily be a verdict for the plaintiff for the amount of his demand; and that the defendants were not entitled to any deduction by reason of any loss or injury they may have sustained in consequence of the unskillful manner in which the work was executed, unless it turned out that the work to them was totally worthless. In this we are of opinion, that the court erred. The pleadings and the evidence warranted the second instruction asked by the defendants, and it should have been given.

As the real sum due was $500, and the interest on it for six months, by the contract, was thirty-five dollars, it follows that twenty dollars was the excess of usurious interest, which, being deducted from the sum really due (five hundred dollars), would leave the sum of four hundred and eighty dollars to which the plaintiff would be entitled, were there no other considerations in the case.

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


text:
    McNeilly, Respondent, v. Patchin, Appellant.
    X. Successive accommodation endorsers are not co-sureties as between themselves, unless there is an understanding or agreement to that effect. They are responsible in the order of their endorsements.

      Jlppeal from St. Louis Court of Common Pleas.

    The facts are sufficiently stated in the opinion of the court.

      M. L. Gray, for appellant,
    cited the following authorities : 20 Mo. 229 ; 18 Mo. T4,140; Douglass v. Waddle, 1 Ohio, 191 ; 7 Mo. 440; 12 Ohio, 167 ; 9 Ohio, 159 ; 9 Vermont, 345 ; 12 Verm. 219 ; 16 Verm. 554 ; 2 Mich. 555 ; 1 Doug. (Mich.) 296.
    «/?. D. Glover, for respondent,
    cited the following authorities : Bank of United States v. Beirn, 1 Grattan, 234 ; Hubbard v. Williamson, 5 Iredell, 297 ; Williams v. Bossan, 11 Ohio, 62 ; Sherrod v. Rhoades, 5 Ala. 683 ; Cathcart v. Gibson, 1 Richardson, 10; Marr y. Johnson, 9 Yerg. 1; Howe y. Merrill, 5 Cush. 80; Irvin v. Manny, 1 Miss. 194; Mc-Neill y. Elam, Peck, 268; McDonald v. Magruder, 3 Pet. 470 ; Story on Prom. Notes, sec. 479; Lewis v. Harvey, 18 Mo. 80 ; Story on Prom. Notes, § 348 ; 4 McLean, 396.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit by McNeilly, who was an accommodation endorser, against Patchin, who was also a prior accommodation endorser, to recover the amount paid by him to the holder of the note. Defence was that the note was executed wholly without consideration, so far as the defendant was concerned ; that it was endorsed by plaintiff and defendant in blank, as co-securities for Clarkson, and delivered to him to be discounted ; that both plaintiff and defendant endorsed the note in blank as co-securities for Clarkson, and not as succession accommodation endorsers ; that defendant is not liable to plaintiff at all on the note, or, if liable, is only so for contribution; also that there was no notice sufficient to charge endorsers.

There was a trial by the court, and the facts found by the court are substantially as follows : That Clarkson, the maker, applied to Thompson to have him discount a note, to be drawn by him ‘(Clarkson) and endorsed by Patchin, the defendant, a portion of the proceeds of which was to be applied by Thompson to the payment of Clarkson’s indebtedness to him. Thompson declined discounting such a note unless the name of the plaintiff was also procured on the note. Thereupon said Clarkson, for whom Patchin had been in the habit of endorsing as accommodation endorser, applied to the defendant, Patchin, to endorse said note, and stated to said Patchin what had occurred between him and Thompson. The defendant endorsed said note for Clarkson’s accommodation ; Clarkson also applied to plaintiff to have him endorse the same subsequent to Patchin’s endorsement, and stated to the plaintiff that Thomp-' son had agreed to discount such a note. Clarkson was at that time indebted to the plaintiff, and promised the plaintiff if he would so endorse the note that he (Clarkson) would pay to the plaintiff fifty dollars on account of said indebtedness to him. Whether said fifty dollars were to be paid out of the proceeds of the note does not appear. The solvency and ability of the defendant to pay the note, were known to said Clarkson and the plaintiff, and something was said with reference thereto by Clarkson when he applied to the plaintiff to endorse said note. Thereupon, the plaintiff put his name on the back of said note, under that of the defendant, who was the payee thereof, and said note was then taken by said Clarkson to Thompson and was discounted by the latter. The court finds that the note was not paid; was presented for payment, which was refused, and was duly protested ; that notices of protest were given, a copy of which was inserted by the court in its finding. Rankin, who was also an endorser, paid the note and sued the maker, McNeilly and Patchin. The maker, Clarkson, was not served with process, and the suit was dismissed as to him. McNeilly neglected to answer ; there was an answer by Patchin denying due notice of presentment for payment. Judgment by default was taken against McNeilly, and the suit was dismissed as to Patchin. McNeilly paid the amount of the judgment on execution against him, being $840 56, on 5th January, 1855.

The court finds that at the time said McNeilly put his name on the back of the note, he knew that Patchin had previously endorsed the same for the accommodation of Clarkson, and said McNeilly understood the purpose to which said note was to be applied by said Clarkson. There was no understanding or agreement between said Clarkson and the plaintiff, nor between the plaintiff and tbe defendant,- Patebin, that the plaintiff was’ to endorse said note in any other way than as second endorser, or that he was to be co-surety with said Patchin, the defendant. The court below rendered judgment for the plaintiff, and the cause is brought here by appeal on the part of the defendant.

The court below finds that the plaintiff and defendant were successive endorsers, without any concert — any understanding or agreement between them, in regard to the manner of endorsing ; there was nothing to show that the plaintiff was to occupy any other position than as second endorser — nothing that they were to be joint sureties — co-securities for Clarkson.

When two or more persons are sureties for another, the law implies a promise from each to contribute equally towards any loss which may be occasioned thereby. If they become sureties by successive endorsements on mercantile paper — as that is a form of contract, which, in general, binds the first to indemnify the second — the law presumes that they mean to stand as they have placed themselves. But if there was an agreement between them to become endorsers for the accommodation of the drawer, the latter presumption is removed, and the original one restored.

The first endorser undertakes that the maker shall pay the note, or that he will pay it, if due diligence be used for him. This undertaking makes him responsible to every holder, and to every person whose name is on'the note subsequent to his own, and who has been compelled to pay the amount. '

The defendant contends here that he is not liable, or, if liable, he is only so for his portion, as he was a joint surety or a co-security with the plaintiff. If this were so, that is, if he were co-security only, then he would only be liable to contribute. “ Co-sureties are bound to contribute equally to pay the debt they have jointly undertaken to pay; but the undertaking -must be joint, not separate and successive.” (See Chief Justice Marshall’s opinion in McDonald v. Magruder, 3 Pet. 474.) In this case before us, McNeilly and Patchin might have become joint endorsers. Their promise might have been a joint promise. In that event each would have been liable to the other for a moiety. But their promise is not joint. They have endorsed separately and successively, in the usual mode. No contract, no communication has taken place between them which might vary the legal liabilities these endorsements are known to create. These legal liabilities, therefore, remain in full force.

The Supreme Court of Ohio, in Williams v. Bossom & Bros. (11 Ohio, 67,) say that the case of Douglass v. Waddle, (1 Ohio, 413,) was decided in 1824. At that time, the form of obtaining accommodations from banks was on notes only; upon such notes, a local usage obtained, holding the sureties on such paper as joint securities only, and not liable to each other in the order of their coming upon the notes. It is this local rule which is recognized and established as law by the. authority of that case. The court, in this case of Williams v. Bossom & Bros., decides that the endorsers of an accommodation bill are not joint sureties, but are liable to each other, in the order of their becoming parties.

The eases referred to by the appellant’s counsel in Vermont Reports, show that the law is settled in that state, which holds that one who endorses his name upon a promissory note in blank, he not being payee, is prima facie holder as a joint promissor. (Strong v. Riker, 16 Verm. 557; Nash v. Skinner, 12 Verm. 219.) In Flint v. Day, (9 Verm. 345,) it was held, that where a person, not a party to a note, signs his name on the back, without any words to express the nature of his undertaking, he is to be considered as a joint promissor, with the other signers, and if any of the other signers are merely sureties, he is to be considered as a co-surety with them. Yet, in this case, the court, in the opinion of C. J. Williams, stated: “Endorsers are not co-sureties, but their undertaking is separate and successive.” In McDonald v. Magruder, Marshall, Chief Justice, asks the question, “In what does the claim of the second on the first endorser differ from that of the holder on the second endorser ? Neither has paid value to his immediate endorser, but the holder has paid value to the maker, on the credit of all the names to the instrument. The second endorser, if he takes up the note, has paid value to the holder, in .virtue of the liability created by his endorsement. If this liability was founded equally on the credit of the maker and of the first endorser, if his undertaking on the credit of both subjects him to the loss consequent on the payment of the note, how can the contract between him and his immediate endorser be said to be without consideration? We would not wish to be understood as saying that two persons who endorse for a third can not be considered as joint endorsers or as co-sureties. We have no doubt that any understanding between them to that effect, or any communication between them, authorizing the belief that such is to be their liability, as respects themselves, would be sufficient to let the case go to the jury, for their decision on the fact, whether they were joint sureties or whether they were to be considered endorsers successively, each responsible according to the place his name occupied on the note. Persons who are willing to assist or to lend their names to another to obtain money, can always, if they will make themselves bear the relation to each other as joint sureties — co-securities, and liable to contribute to any loss in consequence of such use of their names.

But, in the absence of any understanding or agreement between them, the simple fact that the note was accommodation paper and they merely endorsed it, will not make them joint sureties. From the finding of the court, then, in this case, the judgment is correct, and must be affirmed;

the other judges concurring.


text:
    Zepp, Appellant, v. Bauer, Respondent.
    1. Case reversed because the finding of the facts does not sustain the judgment of the court.

      Appeal from St. Louis Law Commissioner’s Court.

      Bland & Coleman, for appellant.

      Blennerhassett & Shreve, for respondent.
   Ryland, Judge,

delivered tbe opinion of tbe court.

This was a suit in tbe law commissioner’s court, by Zepp against Bauer, to recover the amount of two accounts for money due by Bauer to Simon Erschinger, and by him assigned and transferred to the plaintiff.

It seems that the defendant was indebted to Erschinger on account settled, and also for work and labor done subsequently to the date of the account settled ; and that the defendant paid generally to Erschinger a large sum of money, enough to extinguish the whole of the first indebtedness, and a large portion of the last — leaving a balance due altogether of about $73 58. Erschinger made out an account against Bauer, the first item of which is as follows : “ 1853. May 7 : as per settlement on this day, $70 and the other items are charges for days’ work subsequently done. The whole of the account amounted to the sum of $685 83, the last item dated 24th March, 1855. The account is credited by the sum of $562 30, leaving a balance due to Erschinger of $73 58. This demand or claim was assigned by Erschinger to the plaintiff on the 21st April, 1855, in writing.

The plaintiff brought his suit upon this account as for two causes of action ; the first was on the balance due on settlement made May 7th, 1853, being the sum of $70 ; the second for work and labor done, after the 7th May, 1853, and prior to the 1st of April, 1855. This last work the plaintiff avers amounted to the sum of $565 78, and he alleges that there was paid on this the amount of $562, leaving due on this last account, for work done, the sum of $3 78, and due on the whole the sum of $73 78. The plaintiff applied the payments made by Bauer to Erschinger, on the account for work performed subsequently to the first settlement; leaving the $70 due by that settlement still unpaid, and reducing tbe amount for the subsequent work to about $8 78 only.

The case was submitted to the court for trial, who found the following facts substantially : The court finds from the evidence that the said Simon Erschinger assigned his claim against the defendant to the plaintiff for a valuable consideration ; that the claim originated- for work and labor done by Erschinger for defendant; that on the 7th May, 1853, the said Erschinger and defendant had a settlement for work done before that day, and that there was found due to Erschinger $70 ; that since the time of said settlement, the said Erschin-ger did work and labor for said defendant; that the defendant was indebted to him at the time of the said assignment, on ■account of labor since the settlement, a balance of $63 50 ; that prior to the assignment, the said defendant had paid Erschinger the sum of $60, on account of the settlement of the 7th May, 1853. Upon the facts as found, the court declares that the allegations of the plaintiff’s cause of action are unproved in their entire scope and meaning, in this, that the plaintiff counts upon an assignment of an account for $70 ; and the proofs show that of said sum, sixty dollars were paid prior to the assignment, leaving a balance of only ten dollars ; further, that the plaintiff’s allegation of the assignment of the account for work and labor subsequently to the accruing of the first mentioned indebtedness of seventy dollars, is only three dollars and seventy-eight cents ; whereas, the proofs show that on account of the said subsequent work and labor, there remains unpaid the sum of sixty-three dollars and fifty cents. The plaintiff has a good cause of action, but it arises solely from the assignment of the chose in action, or rather from the assignment of the two choses in action — one for seventy dollars, and one for three dollars and seventy-eight cents. There is a total failure of proof in establishing the two choses in action as laid. Enter judgment for $13 78.”

Upon this finding and judgment the plaintiff filed his motion for a review, which being overruled, he appealed to this court.

This judgment is erroneous and must be reversed ; the finding will not warrant it. If there was a total failure of proof, the court should have given judgment for the defendant and not for the plaintiff for part, so as to extinguish his whole demand by the judgment. In looking over the evidence preserved by the case made, there is no doubt but that sixty dollars of the amount due by the settlement of 7th May, 1858, were paid to Erschinger before he" assigned his claim against the defendant to the plaintiff ; and there is as little doubt but that the claim against the defendant, when assigned, was still for $78' 53— the amount due by defendant at that time.

I am at a loss to ascertain the reason why this plaintiff should have supposed it necessary to divide his causes of action. One would have been sufficient, if properly stated. The amount of the -indebtedness upon the settlement is brought forward and made the first item in the account of Erschinger against Bauer, and at the foot of that amount is the general credit, leaving the sum of $73 33 due, and this claim and account was assigned by Erschinger to the plaintiff. Why divide it then into two counts, and come very near losing both? Did the idea of interest on the account stated produce this state of pleading ?

As the plaintiff below asked for leave to amend his petition, and as he shows a meritorious cause of action, this court will ■remand the case, with directions to the lower court to suffer the plaintiff to amend his petition upon terms.

The other judges concur.


text:
    Watkins, Respondent, v. Finney, Appellant.
    1. The law commissioner’s court of St. Louis county can not entertain an appeal from a justice of the peace, in a case where plaintiff seeks to recover damages for an entry into his close, and the tearing down of the wall of a tenement thereon. The appeal should he taken to the Land Court.
    2. Qnere: has the law commissioner the authority, on appeals from a justice of the peace, to affirm the judgment of the justice on the appellee’s motion, and his filing a transcript of the proceedings before the justice’s court ?

      Appeal from Si. Louis Law Commissioners Court.

    The facts are stated in the opinion of the court.

      A. W, Lewis, for appellant.

      C. C. Simmons, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit commenced before a justice of the peace by Watkins against John Finney and William Finney. The plaintiff charged that the defendants, by themselves, servants, agents and workmen, entered upon the premises of the plaintiff wrongfully, and tore down and removed the western wall of a certain brick tenement in the plaintiff’s possession in the city of St. Louis, thereby opening the same to access without any protection, so that the goods and chattels of the plaintiff, in said building, to wit, two hundred and fifty pounds tallow, two hundred and eighty-seven pounds side bacon, four dressed skins, fifteen pounds beeswax, and forty grain sacks, the whole of the value of fifty dollars, were lost or stolen therefrom. He claimed damages for injuries to said building and the loss of said goods and chattels to the amount of fifty dollars.

There was a trial before the justice of the peace, and the jury found a verdict for the plaintiff, assessing his damages at twenty-five dollars. The justice rendered judgment for plaintiff, and the defendants prayed an appeal, which the justice granted to the Law Commissioner’s Court.

The plaintiff afterwards filed the transcript of the judgment and proceedings of the justice’s court in the Law Commissioner’s Court, and moved that court to affirm the judgment; the Law Commissioner overruled the motion. The plaintiff then moved to dismiss the appeal, because the suit being to recover damages for the trespass to realty, the appeal should have been taken to the Land Court; the Law Commissioner’s Court having no jurisdiction of the case. This last motion was sustained, and the appeal w?is accordingly dismissed. The appellants ■excepted, and bring the case here by appeal.

This judgment of dismissal must be sustained ; the suit is for tearing down and removing a part of a brick wall of a tenement in plaintiff’s possession, as well as for goods and chattels lost to the plaintiff by such act of tearing down and removing. This case is similar in principle to the one of Meier v. Bichelberger (21 Mo. 148). The appeal, therefore, could not be taken to the court of the Law Commissioner ; it lay to the Land Court.

The judgment below is affirmed. We do not know of any law authorizing the Law Commissioner’s Court to affirm judgments on the appellee’s motion by filing his transcript and moving therefor, like the practice in this court.

The other judges concur.


author: LEONARD, Judge,

text:
    Martin and others, Appellants, v. Michael and others, Respondents.
    1. A creditor at large, who has commenced suit by attachment for his debt, but has not obtained judgment therefor, is not entitled to invoke the equitable interference of the courts to annul judgments fraudulently confessed by his debtor in favor of other persons, or to restrain by injunction the disposal of the debtor’s property through the means of executions issued on such confessed judgments.

      •Appeal from, St. Louis Court of Common Pleas.

    Application for an injunction and restraining order. The petition alleges that the plaintiffs, Wm. R. Martin and Charles Gr. Martin, are partners, composing the firm of Martin & Brother. The other plaintiffs compose three other firms, under different styles, all of which are set out in the petition.
    The petition further alleges that on the 12th day of August, 1854, said Wm. R. and Charles Gr. Martin instituted suit, by attachment, against the defendants, Samuel and Isaac Michael, who composed the firm of S. & I. Michael, to recover a debt due from said S. & I. Michael to said Martin & Bro.; that af-terwards, on the same day and a few days subsequently, other attachment suits were commenced by other of the plaintiffs against said S. & I. Michael, to recover debts due from the latter to the firms which they composed respectively; that on the 11th day of August, 1854, the said Samuel and Isaac Michael confessed judgments for different amounts in favor of each of their do-defendants, excepting defendant Wimer; that on the same day, executions were issued upon said judgments, placed in the hands of said defendant, Wimer, who was then sheriff of St. Louis county, and .by him levied upon goods, wares and merchandise belonging to the said S. & I. Michael ; that the said writs of attachment were levied by the sheriff, as they came to his hands respectively, upon the same goods, wares and merchandise which had been seized under said executions ; due service of the summons having been made in each case upon said Samuel and Isaac Michael; that said goods, wares and merchandise were all the property said Samuel and Isaac Michael owned ; that the sheriff had (previous to the filing of this petition) advertised and sold the same, and at the time of the filing of this petition had the proceeds of said sales in his hands.
    The amount of the several executions largely exceeded the amount of the proceeds of said sales in the hands of the sheriff.
    The petition further alleges that on the 11th day of August, 1854, the said Samuel & Isaac Michael also executed and delivered to the defendants, Henry N. Hart and Joseph Jecho, a deed of assignment, purporting to be a general assignment for the benefit of the creditors of said S. & I. Michael, but which was never assented to by plaintiffs ; nor did any thing pass to said assignees by operation of said deed, inasmuch as the whole of the’ property of said S. & I. Michael had been previously seized by said sheriff under said executions.
    The petition then states that said confessions of judgments were voluntary, without consideration, fraudulent, and contrived by said S. & I. Michael and their co-defendants (except Said Wimer) colluding together with the fraudulent intent of hindering and delaying their creditors, and of enabling said S. & I. Michael to obtain ready money by means of said sales under said executions, in fraud of the bona fide creditors of said S. & I. Michael; that said assignment was also made with the fraudulent intent of blinding and deceiving the Iona fide creditors of said S. & I. Michael; that the plaintiffs are bona fide creditors of said S. & I. Michael; that in the matters aforesaid said defendant, Wimer, acted in obedience to the process in his hands and the directions of his co»defendants ; that said Wimer still has the proceeds of said sales in his hands, and that said S. & I. Michael are wholly insolvent, and have no property or effects upon which execution or attachment could be levied, excepting said proceeds of said sales.
    The plaintiffs allege that they are remediless unless the said moneys in said sheriff’s hands can be applied to said debts due them as aforesaid, and pray that said confessions of judgment may be annulled, said executions quashed, and that the defendants be restrained from collecting and the sheriff from paying over said proceeds of said sales to his co-defendants, or either of them, and for general relief.
    Upon this petition, a temporary injunction issued in conformity with the prayer of plaintiffs.
    To this petition (the substance of which is set forth above) defendants demurred. James Michael, one of defendants, demurred on the following grounds: “1st. The petition does not state facts sufficient to constitute a cause of action, or to entitle plaintiffs to the judgment or relief prayed therein against this defendant; 2d. The plaintiffs can not lawfully maintain this suit jointly against this defendant; 3d. The plaintiffs can not lawfully maintain this suit against the defendants jointly; 4th. There is a misjoinder of parties plaintiff; 5th. There is a misjoinder of parties defendant; 6th. The plaintiffs have no joint interest in the subject matter of the suit; 7th. The defendants have no joint interest in the subject matter of the suit; 8th.’ Plaintiffs are not lawfully entitled to have the said judgment in favor of this defendant or the executions thereon annulled, vacated or set aside ; 9th. The court can not lawfully control the said funds in the hands of defendant, Wimer, as' prayed in the petition.”
    The other defendants filed a joint demurrer, assigning the same causes of demurrer. The court sustained said demurrers and dismissed the petition. Plaintiffs appealed.

      Krum & Harding, Biddlecome. and B. A. Hill, for appellants.
    I. As to the joinder of plaintiffs, the demurrer was not well taken. The general rule in equity is, that all parties who are interested in the subject and object of the suit, may be joined as plaintiffs. (Adams Eq. 314.) The subject of the suit in this case is the property of the debtors, and the object of it is to prevent a fraudulent disposition of it. This view is aided by the practice act of 1849, art. 3, sec. 5. As to multifariousness, see Oliver v. Piatt (3 How. U. S. 411).
    II. As to the joinder of defendants, the demurrer is not well taken ; for, though the sheriff is not implicated in the fraud, yet he is a necessary party, as being the custodian of the party and the innocent instrument of his co- defendants in carrying out the fraudulent act which they are charged with having combined to commit. The combination charged is sufficient to authorize the joinder of the latter.
    III. The petition shows that the plaintiffs are severally creditors of S. & I. Michael, two of the defendants. The plaintiffs severally sued out attachments which were levied upon the property in question. This property is alleged to be all that S. & I. Michael possess ; that they are insolvent, and that the defendants have combined together to make such fraudulent use of legal process as will, unless prevented by aid of a court of equity, destroy the benefit to plaintiffs of the levy made under their attachments. The main ground upon which the demurrer was sustained was, that plaintiffs were creditors at large, and had not exhausted their legal remedy by obtaining judgment and execution. The appellant maintains that this ground was not well taken. The petition is not .a creditor’s bill, nor are the principles which make it necessary that the debt shall have been ascertained and fixed by judgment, and that the execution shall have been issued and returned nulla bona, before a creditor’s bill can be sustained, applicable to the case. The plaintiffs do not here seek the satisfaction of debts out of property not subject to levy. They do not pretend to have exhausted their legal remedy. They ask that the court will remove an obstacle which the defendants have fraudulently thrown in the way of the complete execution of legal process, issued for their benefit, and they pray for this relief in order that said legal process may be completely executed. As directly in point in respect to the plaintiffs’ right to such relief, we cite Tappan v. Evans (11 N. H. 311, p. 327). The appellants also refer to the above citation as showing the distinction to be made between an endeavor on the part of the creditor to reach equitable property of the debtor, and the attempt to remove an obstruction to a levy upon or sale of property which is subject to execution. The plaintiffs pray for the exercise of the ancillary power of the court to aid in the execution of legal process.
    IY. Our process of attachment is a lien upon property from the time of levy. This lien stands on as high equitable ground as a conveyance. (See Carter v. Champion, 8 Conn. 549, at p. 559.) It would have precedence of a subsequent bona fide conveyance and of a previous fraudulent conveyance.
    Y. The sheriff, having in his possession a fund which his co-defendants claimed by virtue of one class of liens, and the plaintiff by another and a conflicting class of liens, may be regarded as standing in the position of a trustee, and in such case plaintiffs could maintain their bill before obtaining judgment. (See Grosvenor v. Austin, 6 Ohio, 103.)

      S. Reber, for respondent.
    I. A creditor at large, although he has brought suit on his debt, has no standing in a court of law or equity to contest the validity of a judgment confessed by his debtor in favor of another party. (Higgins et al. v. Armstrong, et ah, 2 Johns. Ch. 144 ; Brinkerhoff v. Brown, 4 ib. 071; Witringham v. Witringbam, 20 Johns. 296 ; Melville v. Brown, 1 Harrison, 363.) A judgment creditor must sue' out execution before be can resort to a court o£ equity for relief. (Brinkerhoff v. Brown, 4 Johns. Cb. 671.)
    II. An attachment creditor is a creditor at large, within the meaning of the first proposition. (Melville v. Brown, 1 Harrison, 363.) An attachment creditor has no lien on the property attached. (Ib.) The goods attached are in the custody of the law, and the officer has no right to hold them after the death of the defendant. (Austin v. Wade, Pennington, 727 ; Swer-ingen v. Eberius, 7 Mo. 420.) In the case at bar, the goods were in the hands of the sheriff by virtue of prior process.
    HI. But if attaching creditors were allowed the same standing in court as judgment creditors, still the plaintiffs in this suit could not maintain their action, because the second attachment of Martin & Bro. was not levied on the goods of S. & I. Michael or their proceeds, but was served by sheriff Maddox, by summoning Wimer, his predecessor in office, as garnishee. And there is no pretence that such garnishment creates a lien on the effects in the hands of the ex- sheriff.
    IV. There is a misjoinder of plaintiffs. They not being judgment creditors, the defendants have the right to put in issue the validity of the claim of each, and thus the questions to be tried may be so numerous and diverse as to confound both court and jury, destroy the simplicity and certainty that ought to characterize judicial proceedings, and sacrifice the rights of parties.
    V. There is a misjoinder of defendants. Each defendant has his own rights to maintain, and has nothing to do with the debts or claims of his co-defendants. Each defendant has a right to stand on the merits of his own cause and to fight his own battles.
    VI. The petition is defective for not stating on what ground the attachments were sued out. As the defendants have a right to contest the claims of the plaintiffs against S. & I. Michael, they have a right to know upon what specific ground the plaintiffs base their right to seize the property of the said Samuel and Isaac, otherwise they can not defend themselves.
   LEONARD, Judge,

delivered the opinion of the court.

In Wiggins and others against Strong and others, (2 Johns. Ch. R. 144,) Chancellor Kent said: “This is the case of a creditor on simple contract, after an action commenced at law and before judgment, seeking to control the disposition of the property of his debtor under judgments and executions on the ground of fraud. My first impression was in favor of the plaintiffs, but, upon examination, I am satisfied that a creditor at large, and before judgment and execution, can not be entitled to the interference which has been granted in this case. In Angell v. Draper, (1 Vern. 399,) and Shirley v. Watts, (3 Atk. 2,) it was held that the creditor must have completed his title at law, by judgment and execution, before he can question the disposition of the debtor’s property ; and in Bennett v. Musgrove, (2 Vern. 51,) and in a case before Lord Nottingham, cited in Batch v. Wastoll, (1 P. W’ms, 445,) the same doctrine was declared; and so it is understood by the elementary writers. (See Mitford, 115; Coop. Eq. PL 149.) The reason of the rule seems to be, that until the creditor has established his title, he has no right to interfere, and it would lead to an unnecessary and perhaps a fruitless and oppressive interruption to the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debtor, he has no concern with his frauds. On the strength of settled authorities, I shall accordingly grant the motion for dissolving the injunction.” Afterwards, in Wintringham v. Wintringham, (20 Johns. Rep. 296,) the same doctrine was recognized and acted upon by the Supreme Court of New York, and we are not aware of any case, anywhere, in which it has been held otherwise.

An attaching creditor stands on no better ground than one who sues by the ordinary process of the court. The reason of the rule is equally applicable to both classes of cases ; and so it was expressly decided in tbe Supreme Court of New Jersey, in Melville v. Brown, (1 Harrison, 367.) Let tbe judgment stand affirmed.


text:
    Dix, Respondent, v. Union Insurance Company, Appellant.
    1. A policy of insurance upon a steamboat contained the usual clause making it the duty of the assured, in case of loss or misfortune, “ to use every practicable effort for the safeguard and recovery of the steamboat.” Held, in a suit on this policy, that where by the grounding of the boat, it was in immediate danger of being lost or seriously damaged, or it was in the highest degree probable at the time -that it would be lost or seriously damaged unless launched or set afloat, the insurer was liable for reasonable and proper expenses incurred in good faith by the assured in launching and setting the steamboat afloat.

      Appeal from St. Louis Court of Common Pleas.

    Tbe opinion of tbe court, taken in connection with the instructions set forth below, contains a sufficiently full statement of tbe facts of this case.
    Tbe following instruction, among others, which it is unnecessary t'o set forth, was asked on tbe part of tbe defendant, and refused : “2. Expenses incurred by tbe plaintiff in getting bis boat off tbe bar on which she grounded, are not recoverable in this action, unless they were indispensable to save her from danger of being totally lost. Tbe existence of such danger is not proved by showing that the boat, when aground, was in a situation to be peculiarly liable to loss, if certain perils assailed her ; but it must be shown that some particular peril, threatening her destruction, was actually present and apparent, and was so immediate and imminent as to make the incurring of the expense of getting her afloat a measure of indispensable necessity, in order to save her from being totally lost. If, therefore, the jury should be of opinion that the plaintiff has failed to prove that his boat, as she lay aground, was the subject of an actually present and apparent peril, which immediately threatened her total loss unless she was got afloat; or if they believe from the evidence that the danger to her, if any, was future and remote, and depended on the occurrence of events which might or might not happen, they will find for defendant.”
    The court then gave the following instructions :
    1. The mere grounding of the boat, though she may have been thereby liable to be detained a long time from the prosecution of her voyage, gives the plaintiff no right to recover from the defendant the expenses attending her detention, nor the expenses of getting her afloat that she might resume her voyage.
    2. If the jury believe from the evidence, that the steamboat Timour No. 2, through no fault or neglect of its officers or crew, grounded at the place and in the manner and at the* time stated by the witnesses, and that in consequence thereof the boat was in immediate danger of being lost or seriously damaged, or that it was in the highest degree probable at the time that it would be lost or seriously damaged unless it should be launched or set afloat in the manner stated by the witnesses, or by other than the efforts in the power of the officers and the crew to make ; and if they further believe that the master and owners of the boat, in view of said danger and probability of loss or serious damage, in good faith, for the purpose of saving said boat or rescuing it from said peril, incurred any of the expenses sued for, and said expenses were reasonable and proper, under the circumstances, as they then existed, the plaintiff is entitled to recover.
    8. Whether it was in the highest degree probable at the time that the boat would be lost or seriously damaged, must be determined by the facts and circumstances as they then existed, and not as subsequent events show it would have resulted if nothing had been done to the boat.
    4. If the boat, as she lay aground at the time, was not in immediate danger of being lost or seriously injured, or it was not highly probable that it would be lost or injured, unless other efforts than those of the officers and crew were made to rescue said boat, then the plaintiff is not entitled to recover.
    5. By the terms of the policy, in case of a peril such as is stated in the foregoing instruction, it is the duty of the assured, his agents or assigns, to use every practicable effort for the safeguard and recovery of the boat, and the insurer is bound to pay all reasonable charges incurred thereby in good faith, in the proportion the sum insured bears to the agreed value of the property, which, in this case, is one-fourth ; but the insurer is not bound to pay for the wages or provisions furnished to the officers or crew, while the steamboat was detained, except for such extra services, if any, as were rendered by said officers or crew in protecting and recovering said boat from said peril.
    6. If the jury find for the plaintiff they can allow nothing for the wages of the officers and crew whilst the boat was detained, except for such extra services rendered by them, if any, in protecting and recovering the boat from the alleged peril. They can allow nothing for provisions furnished the officers and crew during the detention of the boat, nor any of the expenses of forwarding the cargo of the boat to its place of destination.
    7. If the jury find for the plaintiff, they can not allow the plaintiff for the wages of the officers and crew whilst making ordinary efforts to get the boat afloat, so that it might resume its voyage. If the voyage was abandoned, and afterwards the officers and crew were employed in rescuing the boat from said peril, then the plaintiff will be entitled to recover for reasonable wages after said abandonment.
    To the giving of these instructions defendant excepted.

      C. D. Drake and Glover & Richardson, for appellant.
    I. The grounding of the boat was not in itself a peril insured against, when happening in the ordinary course of navigation, and without the intervention of any extraordinary cause. (1 Phillips on Ins. § 1086, p. 617; 3 Kent’s Com., 6th ed., ’323, note h. ; Wells v. Howard, 3 Barn. & Adol. 20 ; Kings-ford v. Marshall, 8 Bingham, 458 ; Hazard v. N. R. Marine Ins. Co. 1 Sumner, 218, 228.)
    II. Supposing the grounding to be a peril insured against, it would be only the extraordinary operation of that peril that would be considered as within the terms of the policy. If the boat, in this case, was not the subject, as she lay on the ground, of any extraordinary peril, but only that of indefinite detention, the underwriter was not responsible for expenses incurred in getting her afloat. (1 Phillips on Ins. § 1086.)
    III. The expenses incurred by respondent were in view of apprehended danger of total loss or of serious injury to the boat. The second instruction asked on behalf of appellant was intended to set before the jury what was considered to be the true principles by which they might have distinguished between a reckless and unnecessary expense, incurred merely to enable the boat to proceed upon her voyage, and a proper and necessary expense to save the boat from being lost. It was erroneous in the court to refuse that instruction. (Oliver v. Maryland Ins. Co. T Cranch, 487, 493.)

      Hudson & Thomas, for respondent,
    cited the following authorities : Maryland & Phoenix Ins. Co. v. Bathurst, 5 G. & Jo. 159 ; 2 Arnold on Ins. 993, 994 ; 3 Kent, 324-5; 3 Mas. 27; 1 Phillips on Ins. § 1049, 1429, 1533 ; Idle y. Boyd, 3 Moore, 115 ; 1 Conn. 243 ; Dacoste v. Newnham, 2 T. R. 407 ; 4 Mass. 551.
   Ryland, Judge,

delivered the opinion of the court.

The questions here involve the correctness of the instructions given by the court to the jury, and also the propriety of refusing those asked by the defendant.

The suit is brought by the insured to recover his proportion of expenses incurred in getting the steamer Timour No. 2 (the property insured) afloat. The boat had grounded on a bar in the Missouri river. The petition alleges that these expenses were necessarily incurred to save the boat from a total loss. Tie policy contains an express stipulation that tbe insured, in case of loss or misfortune, shall use every practicable effort for saving tbe boat. The terms used are, “ for tbe safeguard and recovery of tbe steamboat, and if recovered, to cause tbe same to be forthwith repaired; and in case of neglect or refusal on tbe part of tbe assured, bis agents or assigns, to adopt prompt and efficient measures for the safeguard and recovery thereof, then the said insurers are hereby authorized to interfere and recover the said steamboat, and cause the same to be repaired for account of the assured; to the charges of which the said insurance company will contribute in proportion as the sum herein insured bears to the agreed value of this policy.” There was a trial by jury, and verdict for the plaintiff, and judgment accordingly. The defendant brings the case here by appeal, and questions the propriety of the instructions of the court. These instructions state, in substance, that, to entitle the plaintiff to recover, it must be shown that the boat grounded without the fault of the officers or crew, and that in consequence thereof the boat was in immediate danger of being totally lost or seriously damaged unless she was got afloat; and that the master and owners, for the purpose of rescuing the boat from this peril, in good faith incurred the expenses, and that the same were reasonable and proper under the circumstances then existing.

From the statement of the facts in proof before the jury, there can be no doubt but that the danger of total loss, or of very great injury, was so great and imminent, that the master and owners, as honest men, were bound, under this policy, to take immediate steps to get the boat afloat. They could not, in good faith, await until the bar was cut away up to the bow of the boat before they began to use efforts to rescue her from the misfortune.

Nor was there a necessity that the boat should be in danger of total loss. It is sufficient that the expense was necessarily incurred in rescuing the boat from any danger for which the underwriters would have been liable. The instructions, then, in our opinion, correctly lay down the law of the case as appli-. cable to the evidence before the jury.

The plaintiff states that on the night of the 24th day of August, 1853, while the boat was ascending the Missouri river, she ran upon a bar or mud flat in said river, ancl then and there grounded and became stuck thereon, so that it was out of the power of the officers and crew of said boat to get her off of said bar or flat, although every possible effort was made to do so; that when said boat grounded, the river was falling and continued to fall until the said boat was entirely out of the water, in which situation she remained about three months. The plaintiff states that, in order to save the boat from becoming a total loss, it became necessary to launch her and get her again in .the river, so that she would float; that some time in the month of November, 1858, he caused said boat to be launched for the purpose of saving her from becoming wholly lost, and by thus acting saved her from destruction.

The only possible objection to the instructions of the court consists in the rather loose way in which they are expressed in regard to the peril: The boat was in immediate danger of being lost or seriously damaged, or that it was in the highest degree probable at the time that it would be lost or seriously damaged.” We do not consider that this objection materially affects the merits of the matter in controversy. The facts were before the jury, and no one can doubt the imminent danger to the boat of total loss or serious damage. Had the boat not been Hunched, in all human probability she must have broken in two. There were no means in the power of ordinary steamboat machinery, spars and crew, to prevent this breaking, in the condition she was placed, when she was launched, in order to save her from destruction. Serious damage” must mean “ weighty, important damage. ” When we say a man is “ seriously wounded,” the idea of probable loss of life comes to the mind of the hearer; and though such expressions are too loose for grave judicial instructions, yet we can not say that in this case any harm was done thereby to the defendant.

It did not require a total loss, o'r imminent danger of a total loss, in order to make the assurers or underwriters liable to contribute to the expenses fairly and bona fide incurred in rescuing the boat therefrom.

The proof sustains, in substance, the .averments in the petition, and we have no doubt the jury were not misled by the words “ serious damage.” Seeing, then, no error calculated to affect, in any manner, the merits of the controversy, and believing that the law was fairly laid down to the jury, we will affirm the judgment;

the other judges concurring.


text:
    Grassmuck, Respondent, v. Atwell & Pioneer, Appellants.
    1. The Law Commissioner of St. Louis county can not, in ease of an appeal from a justice of the peace, where the justice fails to deliver a transcript, &c., affirm the judgment appealed from, upon the filing of a transcript by the appellee, and a motion made by him for its affirmance.

      Appeal from St. Louis Law Commissioner’s Court.

    This was a suit originally instituted before a justice of the peace. Plaintiff obtained judgment, and defendants appealed August 25th, 1855. On the 2d day of October, 1855, the plaintiff, the appellee, presented the appeal to the Law Commissioner’s Court and moved the court to cause the same to be filed, and to affirm the judgment of the justice on the ground that the appellants had failed to prosecute their appeal according to law. The court affirmed the judgment upon this motion. The defendants made a motion to set aside this affirmance, which being overruled, they appealed to this court.

      Bland & Coleman, for appellants,
    cited 16 Mo. 170 ; 17 Mo. 246; Sess. Acts, 1851, p. 242, § 6 ; R. 0. 1845, p. 670, § 13 ; Sess. Acts, 1853, p. 4 and 5, § 1.

      Dedman and Lewis, for respondent,
    cited Sess. Acts,. 1851, p. 242; R. 0. 1845, tit. Costs, § 16 ; 13 Mo. 226; 15 Mo. 249.
   Scott, Judge,

delivered the opinion of the court.

It is an error to suppose that the proceedings on an appeal from a justice’s court to the court of the law commissioner, are the same as on an appeal from one of the superior courts to the Supreme Court. When an appeal is granted to the Supreme Court, it is the duty of the appellant to obtain a transcript of the proceedings and file it within the time prescribed by law; Otherwise the appellee may take a copy of the record, present it to the Supreme Court, and have the judgment affirmed. All this is by statute law. Nothing like these are the proceedings on an appeal from a justice’s court to the Law Commissioner. The appellant has nothing to do with the transcript in such cases. It is made the duty of the justice, within six days after an appeal is perfected, to deliver the transcript and other papers to the Commissioner, who is required to set the appeal for trial on a certain day, which shall not be less than fifteen nor more than thirty days from the day of delivering the transcript. Now it appears from the record that this was never done; but the appellee presented to the court the appeal and prayed that it might be filed and the judgment affirmed, because the appellants had failed to prosecute their appeal according to law. This motion was sustained. Now, where is there any authority for this ? After an appeal is set for trial on the docket and it is regularly called, if the appellant fails to prosecute it, then the judgment may be affirmed. Where did the appellee get any authority to take a transcript, and move to have it filed and the judgment affirmed ?

We adhere to the case of Hunt v. Hernandez, (16 Mo. 170,) and Boyle v. Skinner, (17 Mo. 246,) which hold that the Law Commissioner can not file the papers in a case appealed from a justice, and affirm the judgment for the nonpayment of his fee.

The judgment is reversed, and the cause remanded;

.the other judges concurring.


text:
    McKinley, Appellant, v. Williamson, Respondent.
    X. The assignor of a thing in action, assigned for the purpose of making him a witness, should not be excluded as a witness, under section 2 of article 25 of the practice act of 1849, (sess. acts, 1849, p. 190,) where, after such assignment, the assignor is entirely divested of interest in the event of the suit.

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

    Tbe only question arising in this case grows out of the ruling of the court below in excluding a witness offered on the part of the plaintiff.
    Plaintiff, McKinley, on the trial, offered as a witness one Margaret Johnston, who, being objected to on the ground that she was the assignor of the demand sued on, and that she had assigned said demand for the purpose of being a witness in the cause, stated on her voir dire “ that she sold and assigned the claim to the plaintiff in this cause; plaintiff gave me twenty dollars for the claim. I never made any arrangement with the plaintiff about it. I went by the direction of plaintiff’s attorney. I have never refunded the money to the plaintiff, and there is no understanding between us about it. In case he wins it, I do not expect to have any of the money, and in case he loses, I don’t expect to pay amy thing. I went to consult with the attorney of plaintiff' as to how I could get my money, before I sold to plaintiff. I afterwards went to the office of said attorney in company with the plaintiff, at which time the assignment was made and the money paid; there was nothing said about my being a witness until subsequent to the assignment.”
    The court excluded the witness ; whereupon the plaintiff 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.

      Bland & Coleman, for appellant,
    cited Hamilton &Dans-ville Plank R. Co. v. Rice, 7 Barb. 157, 161-2; Evarts v. Palmer, Id., 178, 181-2; Montgomery Co. Bank v. Marsh, 3 Selden, 481 ; 11 Barb. 545-9 ; Hall v. Robinson, 2 Comst. 293 ; Brig Sarah Ann, 2 Sumn. 206.

      Hart & Jecko, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The point made in this cause is, whether an assignor of a chose in action can be a witness for his assignee in a suit by the assignee, under the 25th article of the present practice act. The first section of the article referred to enacts “ that no person offered as a witness shall be excluded by reason of his interest in the event of the action.” The second section prescribes that “ the last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action, assigned for the purpose of making him a witness.” The prior clauses of this section show the class of assignors that was designed to be rendered incompetent as witnesses. Those clauses exclude a party to the suit, and those for whose immediate use the suit is prosecuted or defended. Having excluded a party, it was reasonable that the prohibition should not be evaded by merely substituting another plaintiff, the party substituting such plaintiff still retaining his interest in the suit. At common law an assignor, without recourse against him, was a competent witness for his assignee. The witness, in this case, was nothing more, for she swears that she will be neither a gainer nor loser by the event of the suit. As the statute was made to relax the rule at common law, excluding witnesses on the score of interest, it would be against its spirit to give it a construction that would exclude witnesses not excluded by the common law. If, in a determination not to be outdone, the owner of a chose in action, growing out of a contract, assigns it effectually in order that he may be a witness for its recovery, if he has freed himself from all interest in the event of the controversy, he may be a witness for his assignee. This seems to be the conStruction of tbe statute in New York, where it is held that the assignor of a chose in action, which is assigned for the purpose of making him a witness, is not rendered incompetent to testify, if he is not interested in the event of the suit. (Hamilton & Dansville P. R. Co., v. Rice, 7 Barb. 155.)

The judgment is reversed, and the cause remanded;

the other judges concur.


text:
    Parker, Respondent, v. Evans, Appellant.
    1. An affidavit made before a justice of the peace, under the 4th section of the act concerning strays, (R. C. 1845, p. 1039,) by one taking up a stray, is no evidence of the facts therein stated in a suit brought by such person against one claiming to be the general owner of the stray.
    2. It is not necessary that the taker up of a stray should, in order to acquire title under the law concerning strays, keep the animal so taken up within aji enclosure for the time limited bylaw; it is sufficient if he bestows such care and attention upon the animal as a prudent and careful man bestows upon his own animals of the same kind.

      •Appeal to St. Louis Law Commissioner’s Court.

    The facts sufficiently appear in the opinion of the court.
    Beber, for appellant.

      S. H. Gardner, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

Parker sued Evans before a justice of the peace, for the value of a steer. He obtained a judgment against the defendant, who. appealed to the Law Commissioner’s Court. In the Law-Commissioner’s Court judgment was again rendered for Parker, and the defendant appealed to this court.

Parker claimed title to the steer under the stray law ; the defendant claimed him as general owner. On the trial, the plaintiff proved that he posted the steer on 22d February, 1853. It appeared in evidence that after the posting of the steer, the plaintiff broke him to the yoke and occasionally kept him up within his enclosure ; but at other times, he suffered the steer to run at large with his own and his neighbor’s cattle. The parties to this suit were neighbors, living a few miles apart. The steer came again into defendant’s possession in January or February, 1855.

The points for our decision arise upon the instructions given, and also upon those refused by the court below. The court, on the plaintiff’s motion, gave the following instructions : “1. If the jury believe from the evidence that the steer or ox in question was lawfully in the possession of the plaintiff, and was by the defendant unlawfully taken out of his possession and detained from him after demand made, the plaintiff is entitled to such damage as the jury shall believe from the evidence he is entitled to by reason of such taking and detention, and plaintiff is entitled to recover the value of said steer as damages.” 2. If the jury shall believe from the evidence that the animal in question is the property of the defendant, they will, notwithstanding, find a verdict for the plaintiff, provided they shall believe from the evidence he has complied strictly with the following requisites, that is to say, that he was a free white person and a householder; that he found the said animal as a stray on his plantation, and took it up ; that within five days after he took it up, he went before a justice of the peace of this county, and made oath that it was taken up on his plantation, and that the marks and brands had not been since altered to his knowledge; that at least two disinterested householders took an oath that they would fully, fairly and impartially appraise the same ; that they did thus appraise the same, and that their appraisement embraced a description of the size, color, age, sex, marks and brands of the said stray ; and that the justice of the peace entered the said description on his stray-book ; that the plaintiff delivered or caused to be delivered to the clerk of the county court of St. Louis county a certified copy of said entry on the justice’s stray-book within fifteen days after the said appraisement; that the plaintiff, immediately after the appraisement, caused a notice to be set up at three of the most public places in St. Ferdinand township, which said notice contained a copy of the said entry in the justice’s stray-book ; and if the jury shall not find that all the above requisites have been complied with, they will find a verdict for the defendant ; and if the jury shall believe from the evidence the plaintiff did not take the said stray up on his plantation, or on the plantation which he occupied, they will find for the defendant.”

The defendant asked the following instructions, the first of which was given, and the other two refused, viz : “ 1. The jury are instructed that an oath administered by a justice of the peace to the appraisers of an estray, that they had, without partiality, favor or affection, viewed and appraised the steer in controversy, is not such an oath as the statute requires the appraisers to take before they appraise an estray; and that unless they, the appraisers, take an oath before appraising that they will fully, fairly and impartially appraise the stray, the taker up can acquire no title under the estray law, and the jury must find for the defendant.” “ 2. The affidavit of the plaintiff, given in evidence, that he took up a stray at his plantation, is no evidence that he did take up the steer in controversy on his plantation ; and he can not recover in this suit, without proving by other evidence, that he did take him up whilst on his plantation.” “ 3. The jury is instructed that if they shall find from the evidence that the plaintiff took up the steer in controversy as a stray, and within one year next after the time of taking him up, voluntarily suffered him to go at large in the range without any enclosure, he can not claim any title to the steer under the law concerning strays.”'

The first section of the act concerning strays, (R. C. 1845, p. 1838,) is as follows : “No person shall take up any un-broke animal as a stray between the first day of April and the first day of November, unless the same be found within his lawful enclosure; nor shall any person, at any time, take up any stray unless it be found on his plantation.”

The proof in this case shows that this animal was taken up in February, and that he was broken to the yoke afterwards by the plaintiff and his employees. But the court below, in laying down the requisites to be attended to and to be done by a person before such person can acquire title to an estray, omitted to mention this in regal'd to the time in which, by the statute, a person can take up a stray. If the hnimal be unbroke, unless it be found within the lawful enclosure of the person taking up, it is not allowed to be taken up as a stray between the first of April and the first of November. Here, the particular times specified in the statute were omitted to be laid down in the instruction given for the plaintiff. This omission was purely accidental, no doubt, for the proof abundantly established the taking up between the first of November and the first of the succeeding April — the time allowed for such acts by the statute.

As the judgment below has to be reversed upon another ground, this defect in the plaintiff’s instruction is pointed out, that it may be avoided in the next trial. The first instruction given for the plaintiff also had better be altered, so as to do away with the objection urged against it, on the ground of referring to the jury a matter of law, such as “if the steer was lawfully in plaintiff’s possession” and “ unlawfully taken out” by defendant. These two objections are noticed by this court out of much caution, in order that plaintiff’s counsel may avoid them on the next trial.

The second instruction asked by defendant ought to have been given to the jury by the court. The affidavit of the taker up is a material fact, but it does not establish another material fact in .plaintiff’s title — the fact of taking up the stray on plaintiff’s plantation. The affidavit of the plaintiff, required under the stray law, will not be proof of the fact of the taking up of the stray on plaintiff’s plantation; other proof of this material and important fact is necessary, and must be adduced in order to make title in the taker up. The refusal to give this instruction is error. The court instructed the jury that they must believe from the evidence that the stray was taken up on the plantation o£ the plaintiff; this was very proper; and had they been informed that the plaintiff’s affidavit was not evidence of this fact, there would have been no error. But as it appears from the record otherwise, this court must reverse the judgment.

The main question, and, no doubt,'the only one considered of any importance below, arises on the refusal of the court to give'the defendant’s third instruction. This court can not consent to the doctrine contended for by the defendant’s counsel, that the chief duty of the taker up is to keep the stray in custody. Such a doctrine would at once defeat the ends of this wholesome and necessary law. The costs and charges for taking up and keeping the stray in enclosures, and expenses of feeding and attending to such animal, would very soon amount to the value of the animal; and no man would hunt for or endeavor to find what would cost him the full value, or more than the value, when found.; and few would be willing to take up and keep estrays under such circumstances.

- In this country, between the first of April and first of November, generally, the seasons are such that most of the animals that run in the range make out 'to live. There is no necessity for such to be taken up. In the season between the first of November and first of April, animals require the food of the husbandman; they must be fed from the master’s field and crib. Then the law permits the stray animal to be taken up and fed and taken care of like the other animals and stock of the taker up; and when the spring returns and the range becomes good, then the taker up permits his own and the stray to feed together in the range. There is no necessity to keep such stray up in stables and pens or fields. When they fare as the taker up permits his own to fare, that is sufficient. The ox knows his master’s crib, and generally on the approach of winter returns to it; and the prudent husbandman often casts his eye over his stock in the range, and often reminds them of his care by a handful of salt.

Nothing more is required of the taker up than to use such care and bestow such attention on the stray animal as a prudent and careful man bestows upon his own animals of the same kind. There was no error, therefore, in refusing the defendant’s third instruction. The judgment below must be reversed for the error committed by refusing to give the defendant’s second instruction. The other judges concurring, the judgment is reversed, and the cause remanded.