text:
    The State, to use of Squire & Reed, Respondent, v. Bird & Gilbert, Appellants.
    1. In an action against the sureties in a constable’s bond, the judgment was, under the circumstances, reversed for the refusal of the court below, in the exercise of its discretion, to permit the defendants, after a motion to dismiss overruled and before judgment by default, to file their answer setting up lapse of time as a bar.
    2. Where a statute creates an absolute bar by the mere lapse of time, without any exception, the defence may be made by demurrer, if the necessary facts appear in the petition.
    3. The admissions of a constable, forming no part of the res gesta, are not evidence against his securities.

      Appeal from, Weston Court of Common Pleas.

    This was an action begun September 15, 1854, against Stevens and his securities, upon his official bond as constable. It appeared from the petition that the bond was dated August 7, 1851; that it recited the appointment of Stevens as constable in the place of one Patton, removed, and was conditioned in the usual form of a constable’s bond. There was no allegation as to the time when Stevens’ term of office expired. The breach assigned was, that the constable had received from the beneficial plaintiffs a note against one Davis for collection, had collected the money, and failed to pay the same over on demand.
    The history of the proceedings up to the time of judgment against Bird & Gilbert, the securities, for want of an answer, is sufficiently stated in the opinion of the court. Upon the assessment of damages, the plaintiffs were allowed to prove an admission by Stevens to Doniphan, made during the pendency of a suit on the note against Davis, which Stevens had employed Doniphan to conduct, that he had collected the money; and to the admission of this evidence, the defendants, Bird & Gilbert, excepted. After final judgment against them, they appealed to this court.

      H. M. Vories, for appellant.
    1. The petition was insufficient. The law positively declares that no suit shall be brought against the securities of a constable on his official bond, unless the same is brought within two years after the expiration of his term of office. (R>. O. 1845.)' In this case, it appeared on the face of the petition that more than two years had elapsed after the expiration of the term for which Stevens was appointed constable, as the court is bound to know the law which fixes the term for which constables are elected. 2. The defendants should have been permitted to file their answer after the motion to dismiss was overruled. The plaintiff had waived his right to object to the time within which the motion was filed, by consenting to a continuance. 3. The admissions of Stevens to Doniphan were not admissible evidence against the defendants, Bird & Gilbert. (2 Phill. on Ev. 669, 671, 673 ; Hotchkiss v. Lyon, 2 Blackf. Rep.; 3 Har. & McH. 242 ; 5 Esp. 26 ; 3 Bouvier’s Inst. 864; Starkie’s Ev. tit. Admissions ; 1 Greenl. Ev. § 187, 188.)

      Abell & Stringfellow, for respondent.
    1. The motion to dismiss was properly overruled, both because it was filed too late, and because the statute of limitations can only be taken advantage of by answer. 3. The court will not interfere with the discretion exercised by the court below in refusing to permit the answer to be filed, as it can not see the reasons which operated on the mind of the court. The statute of limitations is an iniquitous defence, and is not favored. 3. The admissions made by Stevens, while he had the management of the suit for the collection of the money, were a part of the res gestae, and were admissible.
   Leonard, Judge,

delivered the opinion of the court.

At the return term no proceedings were had, except a single entry, postponing the case to another day. At the next term, the defendants filed a motion to dismiss, because it appeared upon the petition that the suit was commenced more than two years after the expiration of the constable’s term of service, and the motion and suit were, by agreement of the parties, both postponed until the next term — the plaintiff, at the same time, taking an order for an alias writ against the constable, who had not yet been served. At the succeeding term, the motion to dismiss was overruled, and the sureties, no default having been taken against them,.immediately presented an answer setting up the same defence, and asked leave to file it, which was denied, and judgment, for want of an answer, given against them. The plaintiff then discontinued as to the constable, who had been served with-process since the last term, and the court proceeded at once to assess the plaintiff’s damages.

The judgment will be reversed because the defendants were not allowed to make their defence. In matters of discretion, and this was certainly of that character, we do not interfere, except it appear clearly to us that the court has erred in the exercise of it, to the manifest injury of the complaining party, and such, we, think, was the case here. The purposes of justice will be best subserved by allowing a party to file his answer at any time before his default has been acted upon, in all cases when he has a real defence to make, and it will not create delay in the determination of the cause, or prejudice the just rights of the plaintiff, and there is no. reason to believe that the failure to answer was wilful, or for any improper purpose. And it seems to us that every thing concurred here to require the court to allow the answer to be filed. Indeed, no ground has been suggested, nor does any occur to us why it should not have been done. We remark; without however expressly deciding the matter, that the statute (“ Constables,” section 6) upon which the defendants rely, seems to create an absolute bar by the mere lapse of two years, without any exception ; and the rule of law, in such eases is, that the defence maybe made by demurrer, if the necessary facts appear upon the pleading. (Fellow v. Lee, 2 Barb., S. C., 490; Humbert v. Trinity Church, 7 Paige, 195; and Hook v. Whitlock, Id. 873, and cases there cited.)

It is very true there was no reason or authority for substituting a motion in lieu of' a demurrer, and the defendants’ motion was clearly an improper mode of making their defence, even iff the necessary facts appeared upon the petition. The difference, however, between the two is more formal than substantial ; it was manifestly a mere slip here, in the party, as to the proper mode of presenting the defence ; it was not excepted to at'the time by the plaintiffs, but was rather acquiesced in by them, and no delay would have resulted from allowing it to have been made by answer.

We do not feel ourselves at liberty to denounce the defence as unconscionable — entitled to no indulgence — and available only to a party keeping himself strictly within the rules of law. These defendants were not endeavoring to avoid the payment of their own debt by the mere lapse of time, but were defending themselves against the heavy penalties inflicted upon them, as the constable’s sureties, for an alleged breach of his duty, by insisting upon the plaintiff’s omission to' institute their suit within the time allowed by statute, under which the plaintiffs themselves claim the penalty. When they entered into this bond, it might very well have been their understanding, if not part of their contract created by the law, that they should continue liable during two years from the expiration of the term of service, and no longer, unless called to account within that time, and they might have willingly entered into such an undertaking, when they would have at once refused to become responsible for an indefinite period of time. But we need pursue the subject no farther, except to observe that, by the statute, the constable is to continue in office until his successor is elected and qualified, and not for two years only ; and so it does not certainly appear from the petition at what time the constable’s term of service expired, and that had this been otherwise, the defendants would have had the benefit.of their objections to the petition here upon the overruling of their motion.

The other points in the case need not be decided; but it may not be improper to remark that the constable’s admission, made to Doniphan, was clearly inadmissible against them; this conversation was no part of the res gesfse — the collection of the inoney, which was the official act of the officer, for which the plaintiff sought to recover against his securities, but was merely a narration of that affair — certainly, good evidence against himself, as his own admission of what he had transacted, but not against others, although they were bound for him in reference to the act to which the conversation related. (Greenl. Ev. § 187.)

Judge Ryland concurring,

the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    The State, Plaintiff in Error, v. Randolph, Defendant in Error.
    1. As to the essentials of a criminal recognizance.
    2. Where a recognizance is improperly certified, the defect may he amended at any time before the objection is disposed of, on such terms as will protect the party from being prejudiced by it.
    3. It is not essential to the validity of a recognizance taken by a justice, conditioned that a party shall appear in court “to answer an indictment, and not depart without leave,” that it should describe the offence with which the party is charged, or state the facts which gave the justice jurisdiction ; nor need these facts be stated in the writ of scire facias. It is sufficient that they appear on the files and entries of the court.
    4. A demurrer to a scire facias upon a forfeited recognizance, is not to he regarded as taken to what appears in the writ or in the recognizance, but to what appears of record.
    5. A proceeding by scire facias upon a forfeited r'ecognizanae, is not a civil action within the meaning of the practice act of 1849, but a mere continuation of an existing proceeding.

      Error to Callaway Circuit Court.

      Scire facias upon a forfeited recognizance. The recognizance was filed in the office of the clerk of the Circuit Court on the 9th of October, 1854, and was as follows :
    “State of Missouri — county of Callaway.- Be it remembered, that, on the 15th day of September, A. D. 1854, Robert D. Randolph and Robert Randolph, sr., of Callaway county, personally came before me, a justice of the peace within and for said county, and acknowledged themselves to owe to the state of Missouri, that is to say, Robert D. Randolph, the sum of two hundred and fifty dollars, and the said Robert Randolph, sr., the sum of two hundred and fifty dollars, to be levied of their goods and chattels, lands and tenements, if the said Robt. D. Randolph shall fail in the condition underwritten. The condition of this recognizance is such, that if the above bounden Robert D. Randolph shall personally appear at the Circuit Court, on- the first day of the next term thereof, to be holden for the county of Callaway on the 9th day of October next, then and there to answer an indictment to be preferred to the grand jury against the said Robert D. Randolph for assault, beat and cut, on purpose, of malice aforethought, whereof he stands charged, and shall not depart the same without leave of the said court, then this recognizance to be void ; else to remain in full force.
    “Robert D. Randolph, (seal.)
    “Robert Randolph, (seal.)
    “Taken and certified the day and year last aforesaid.
    “Zadock Hook, J. P., (seal.)”

      On the same day, there was filed in the office of the clerk the justice’s transcript, as follows :
    “ State of Missouri v. R. D. Randolph. Assault; upon affidavit of H. B. Renor. Warrant issued in this cause 13th day of September, 1854, and returnable forthwith, and delivered to W. T. Snell, sheriff Callaway county.
    “W. B. Tucker, J. P.
    “ This cause came on to be heard on the 15th day of September, 1854, the defendant being here in court. Both the parties being ready for trial, and the witnesses in this cause having been duly examined, and their examination having been duly committed to writing, and after due deliberation and consideration by the justice, it is ordered and adjudged that this cause be certified to the Circuit Court of Callaway county, and that the said defendant enter into a recognizance to appear before the judge of our said Circuit Court on the second Monday in the month of October next, in the sum of two hundred and fifty dollars for himself and two hundred and fifty dollars for his security, and thereupon said defendant entered into said bond, with Robert Randolph, sr., as his security, as directed by law.”
    To this transcript was annexed the certificate" of W. B. Tucker, the justice.
    On the 12th of October, 1854, a forfeiture of the recognizance was entered in the Circuit Court, and on the 19th of December, a scire facias issued upon it, which, after reciting that it was taken “ before William B. Tucker, otherwise Zadock Hook, justices of the peace within and for Callaway county,” and its condition, and the forfeiture, commanded the sheriff to make known to the said Robert D. Randolph and Robert Randolph, sr., that they appear at the next term of the court to show cause why execution should not issue for the penalty.
    At the next term, the defendants appeared by attorney, and filed a demurrer, pending which, on motion of the circuit attorney, the suit was dismissed as to Robert D. Randolph, and W. B. Tucker, the justice, was permitted to add to the recognizance, nunc pro tunc, the following certificate : “ Taken, and certified before me on the 15th day of September, 1864.
    “ W. B. -Tucker, J. P.”
    Afterwards, upon a hearing, the demurrer was sustained, and the case is brought here by writ of error.

      Gardenhire, (attorney general,)
    submitted the case for the State without brief or argument.

      H. C. Hayden, J. W. Morrow and C. H. Hardin, for defendant in error,
    in their brief argued the following points :
    I. The recognizance is invalid because it does not appear upon its face that the principal recognizor was charged with any crime or misdemeanor for which the justice was authorized to hold him to bail. It is essential to the validity of a recognizance that a crime, in substance, should be charged. (3 J. J. Marsh. 642, 643 ; 1 Dana, 523, 165 ; 2 Kelly, Georgia, 363; 2 Black. Comm. 341; 33 Maine, 536; 18 Ala. 293 ; 2 Carter, Ind., 371; 10 Barb. 35 ; 13 Ills. 696 ; 7 Hill, 39 ; 17 Wend. 252 ; 9 Mass. 520 ; 16 id. 447 ; 4 id. 641; 7 id. 209; R. C. 1845, p. 861, § 26.) - 2. There is a material variance between the scire facias and the recognizance. The recognizance appears to have been taken and certified by Zadock Hook, and that set out in the sci.fa. is one taken and certified by “Zadock Hook, otherwise W. B. Tucker, justices of the peace.” The amendment allowed by the Circuit Court was a nullity, or, if proper, could only operate to give the Circuit Court jurisdiction from the time it was made,- and could not cut back so as to give validity to the prior proceedings, and detain the defendants in court to answer another recognizance and a different cause of action. Even if the amendment was properly allowed, still there is a variance. 3. There is no averment in the scire facias that the recognizance was certified and returned to the Circuit Court. (1 Dana, 523; R. C. 1845, § 29, p. 861.) 4. This being a civil proceeding, instituted by the State to recover a debt of record, a scire facias was not the proper remedy, as it is not embraced among the exceptions in the 6th section, of article 30 of the code of practice of 1849. A scire facias upon a criminal recognizance is a common law proceeding, and not a statutory remedy. (12 Mass. 1; 1 Chitty’s PI. 111.) 5. The recognizance contains no words of covenant or obligation on the part of the defendants, and for that reason does not bind them. (R. C. 1845, p. 893, § 14.)
   Leonard, Judge,

delivered the opinion of the court.

In order to simplify the questions raised here, and render the solution of them more easy, we will briefly refer to the nature of a recognizance, and the usual proceedings to enforce its execution, confining what we have'to say to a recognizance taken in a criminal proceeding to secure the appearance of the accused. It is, as we all know, an acknowledgment, taken by some court or officer authorized by law .to do so, of a debt due to the State, but suspended upon the condition that the accused appear in court at the appointed time, and answer the alleged charge, and do not depart without leave. The essentials of such a recognizance are, that it be taken by a competent court or officer, in a case existing before such authority, and for the performance of some act that the law allows to be secured in that way, and in the form prescribed for that purpose.

At common law the obligation was created by the mere verbal acknowledgment of the party, which the law entrusted the court or officer with the duty of taking and certifying ; but our statute (R. C. 1845, chap. 138, art. 9, § 14, p. 893) has altered this, and, for the better security of the party against mistake or design, has required all recognizances that are taken in open court to be entered on the minutes of the court, and the substance to be read to the party ; and in all other cases, when taken out of court, to be in writing and signed by the persons to be bound. Of course, the party is bound as soon as the obligation is entered into in the form prescribed ; but if it be taken by an officer or in another court, it must be certified and filed in the court, where the party is bound to appear, in order to render it complete and make it effectual. But, in such case, if it be imperfectly certified, the defect may be amended — nunc pro tunc — at any time before the objection is disposed of; and this, like all other amendments, is allowed only upon such terms as will protect the other party from being prejudiced by it.

Although a recognizance can only be taken to secure the performance of some act that the law allows to be secured in that way, we do not deem it essential to the validity of the recognizance, that it should specify upon its face the specific charge that the party is to answer to. It is impossible to reconcile the American cases upon this subject, and we shall not attempt it, as we think the matter is plain enough.

The meaning of a recognizance is, that the party shall not only appear and answer the particular charge, but also, in the language of Hawkins, (PI. Or. b. 2, chap. 15, § 84,) “put himself as much under the power of the court as if he had been in the custody of the proper officer;” and'in the same book, it is laid down, “ If persons be bound by a recognizance that J. S. shall appear in the K. B., in such a term, to answer such an information against him, and not depart till he shall be discharged by the court, and afterwards the attorney general enter a nolle prosequi as to that information, and exhibit another upon which the defendant is convicted, and he refuses to appear in court after personal notice, the recognizance is forfeited. For, being express that the party shall not depart till he be discharged by the court, it can not be satisfied unless he be forthcoming and ready to answer any other information exhibited against him while he continued undischarged.” In the People v. Stager, (10 Wend. 431,) it was said that the clause “ that he shall not depart until discharged,” is not necessary to be inserted in the recognizance, in respect to the charge upon which the recognizance is entered into ; that its use is to detain the party upon other charges that may be exhibited against him. In Champlain v. The People, (2 Comst. 81,) it was held to be no answer to a recognizance conditioned to appear “ and answer to an indictment to be found and not depart without leave,” that no indictment was found, on the ground that the accused was not entitled to his discharge as a matter of course.

We believe it will be found upon examination, that the precedents of recognizances are quite as common in the general form, to answer “ to an indictment to be found,” without any specification of the particular offence,, as in the other form, specifying the particular charge.

And we do not think our legislature intended by the clause to which we have been referred, (R. C. 1845, chap. 138, art. 2, § 26,) to make any change in the law in this respect, as indeed no reason can be suggested for doing so. Now, if we strike out of this recognizance the words in which the justice has attempted to describe the particular charge, it is a recognizance to answer generally to any indictment that may be preferred against the party: just what it would have been, in substance, had the particular offence been described with technical exactness ; on account of the insertion in it of the clause “ not to depart,” &c. The recognizance therefore can not be void for the alleged defect, even if the language describing the particular -charge be wholly unintelligible, which, by the way, is not the case, although it is certainly a very informal description of a felonious assault.

A justice of the peace has jurisdiction to commit and recognize for all offences committed in his county, cognizable in the Circuit -Court, and of course the justice here was a competent officer to take a recognizance from this defendant for his appearance in the Circuit Court to answer to an indictment to be there preferred against him. And, although there must have been a case pending before him, in order to give validity to the recognizance he took, yet the particular facts by which he acquired jurisdiction to take the recognizance need not and usually do not appear upon the rebognizance itself. In New York, where it is usual to file a declaration in a proceeding by scire, facias upon a recognizance, it was held in the People against Kane, (4 Denio, 531,) that, in such a declaration, it was not necessary to aver the special facts by which the officer became authorized to take the recognizance in the particular case, overruling two previous cases in the same court upon that subject. Bronson, C. J., in delivering the opinion of the court, remarked : “ When the recognizance has a condition to do some act, for the doing of which such an obligation may be properly taken, and the officer before whom it was acknowledged had authority by law, in cases of that general description, I think the recognizance is valid, although it does not recite the special circumstances under which it was taken. And in declaring upon such a recognizance, I do not think it necessary to aver the existence of the particular facts which prove that the officer had authority to take it. It is undoubtedly a well settled and highly important principle, that, before any one can be affected by the judgment or order of a court or officer, of special and limited jurisdiction, it must not only appear that the court or officer had authority to act in cases of that kind, but that jurisdiction had been acquired in the particular case. But there is an obvious distinction between cases where a charge or burden is attempted to be fastened upon a party by a proceeding in invitum, and those where the charge or burden springs from his own voluntary act:” In our practice, no record of the recognizance is drawn up in form, stating the whole proceeding, nor is any declaration filed, or indeed necessary., as the facts that entitle the State to an award of execution can not appear otherwise than from the entries and files of the court; and, according to our mode of proceeding, which is very informal, the demurrer in this case must be considered as taken not to the writ, which does not perform here the double office of writ and pleading, as it does in those cases, where some extrinsic fact is necessary in order to make out the party’s case, but to what appears of record, or rather to what appears on the files and entries of the court from which the formal record would, if required, be drawn up. And here it thus appeared that there was an affidavit, a warrant, an apprehension of the party, an examination and an adjudication that he give bail for his appearance, and of course it thus sufficiently appeared how the officer acquired jurisdiction in the particular case ; and the defendant’s objection is thus reduced to the mere formal one, that it did not appear upon the face of the recognizance, or upon the writ of scire facias, neither of which was necessary according to the New York cases, or under our peculiar practice.

In reference to the proceeding upon the recognizance, a few remarks will be sufficient to answer the objections that have been taken. The recognizance, after the forfeiture, being equivalent to a judgment against the party for the amount confessed, the State may proceed to collect it upon execution ; and in England, in criminal recognizances, where there was no doubt as to the forfeiture, this seems to have been done without any scire facias, as was at one time the practice in New York, or the State may bring a fresh suit upon it; and if the latter course were taken, it.might then be insisted that the State should sue in the form prescribed to other persons. The present proceeding however, is not a civil action within the meaning of the new code, but a mere continuation of an existing proceeding, to enforce the collection of the debt confessed.

In England, as soon as the recognizance is forfeited, it is estreated into the’court of exchequer for collection, and we briefly refer to the proceedings there to show the nature and character of a scire facias, whether taken in criminal proceedings or for other purposes. An extent is a writ of execution against the body, goods and lands of the debtor, and when used by the crown, is an ancient prerogative writ for obtaining satisfaction of debts due to the king ; and upon a recognizance of any kind to the king, if it be clearly forfeited, as usually sufficiently appeared when the condition was for the appearance of the accused, an extent issued in the first instance, without any scire facias (2 Tidd Prac. 1090) ; but i£ it were doubtful whether or not there had been a forfeiture, a scire facias was necessary. (2 Tidd. 1140.) This being a judicial writ, founded upon some matter of record, issues out of the court where the record is, and although, where it discloses extrinsic facts and requires an answer from the defendant, it is in the nature of a declaration, yet, when the object is to obtain execution upon what appears of record, it is properly called a writ of execution (2 Tidd. 1139) ; but because even then it may be pleaded to, it is so far considered in law as an action. (2 Tidd. 1139.) When sued out upon a recognizance, it recites the recognizance, and commands the sheriff to warn the defendant to appear and show cause why the king should not have execution of the sum acknowledged to be due. If the sheriff warn the defendant, he returns the writ accordingly; otherwise he returns “ nihil;” and in the latter case a second scire facias issues, and on the return of either “ served” or of two u nihils,” a rule is entered requiring the party to appear and plead. If he appear, a declaration is filed and the defendant may then move to set aside the proceedings for irregularity, or may plead in abatement or in bar, as in other actions. (2 Tidd. 1142.) Such is the English practice. Ours, it is seen, is somewhat different. The practice in some, if not in all the northern states, following the English practice, is to file a declaration ; but in Virginia, and other southern states, this is never done; (Robinson’s Pract. 584; Brown v. Harley, 2 Florida, 162) ; and we have adopted the latter practice. Here no fact, as we have before remarked, need be shown by the State, except what appears upon the entries and files of the court, and upon the demurrer, therefore, we think reference may be had to them ; and if sufficient appear upon them to entitle the State to an award of execution, the demurrer ought to be overruled, without any reference to the omissions in the writ.

We are not advised as to the particular ground upon which the demurrer was sustained; certainly, both the recognizance and the scire facias^are somewhat informally drawn up ; but we think both are sufficient in substance, and that there was enough upon the files and entries of the court to entitle the State to judgment upon the demurrer. The result is, the judgment must be reversed, and the cause remanded for further proceedings. Judgment reversed, and cause remanded.

CASE S 'ARGUED AND DETERMINED IK THE SUPREME COURT O S’ THE STATE OE MISSOURI, MARCH TERM, 1856, AT ST. LOUIS.


text:
    Phillips, Respondent, v. Hunter, Appellant.
    1. A. transferred to B. a negro slave, and gave a bill of sale absolute on its face, but intended merely as a security for indebtedness of A. in favor of B.; the slave, although delivered to B. at the date of the bill of sale, and retained by him for a few days, was permitted to remain in possession of A. until his death shortly after; A.’s administrator, upon the production by B. of the absolute bill of sale, thinking B. justly entitled to the slave, received from him a sum of money alleged to be the balance of the purchase money due A.’s estate, and gave a receipt for the same and surrendered the slave to B. Held, that this transaction did not amount to a sale of the slave by the administrator to B., nor did it cut off the equity of redemption belonging to A.’s estate.
    2. A sale by an administrator, under an order of the county court, of an equity of redemption in a slave, is valid, although the slave is in the possession of the mortgagee, who claims to hold absolutely, and refuses to deliver up the slave.

      Jlppeal from New Madrid Circuit Court.

    This was a suit, instituted August 9tb, 1853, to redeem a slave, alleged by plaintiff to be held by defendant as mortgagee. The facts are as follows : One Winchester, owning a negro boy named Frank, and being indebted to Hunter, the appellant, in the sum o£ $261, executed, January 28th, 1851, the following bill of sale: “For and in consideration of the sum of five hundred dollars to me in hand this day paid, the receipt whereof is hereby acknowledged, I have sold unto Wm. W. Hunter, and delivered up to him, a certain negro boy named Frank, aged about sixteen years, sound in body and mind, and a slave for life. The title of said boy I bind myself, my heirs, &c., to warrant and defend unto the said Hunter, his heirs, &c., against the claim or claims of all persons. In testimony whereof, I have hereunto set my hand this 28th day of January, 1851. [Signed] Isaac Winchester.”
    The following agreement, signed by the said Hunter and Winchester, was, at the same time, executed and delivered to Winchester: “ I, having this day purchased of Isaac Winchester a certain negro boy, named Frank, for the sum of five hundred dollars, as stated in bill sale this day given me of said boy, do, by this writing, obligate myself, and agree with said Winchester, that if he does pay to me, on or before the twenty-fifth day of December next, the sum of two hundred and sixty-one dollars, with interest thereon from this date, and any other just demand I may have against him at that time, (viz., December 25,1851,) that I will deliver up said boy to him (should he be alive) and make him a title to said boy Frank; he, the said Isaac Winchester, agreeing that in case said negro boy Frank does not live until the 25th day of December, 1851, that he will pay the amount specified above, (two hundred and sixty-one dollars,) with interest thereon from this date until paid. In testimony whereof, we have set our hands, 28th January, 1851. [Signed] W. W. Hunter, Isaac Winchester.”
    At the time of the execution of these writings, Winchester delivered said negro Frank to Hunter, who retained possession of him for several days, and then permitted him to return to the possession of said Winchester. Winchester died in possession of said negro Frank. One Adam Magee was appointed administrator of the estate of said Winchester, and he, thinking at the
      time that Hunter was justly entitled to the boy Frank, received from said Hunter, December 27th, 1851, the sum of $224 20, which was stated by Hunter to be the -balance due Winchester on the price of the negro, and thereupon transferred said slave to Hunter, and gave him the following receipt: “ Received of William W. Hunter two hundred and twenty-four dollars and twenty cents, being the full balance due Isaac Winchester, deceased, by said Hunter, on a negro boy, named Frank, sold to said Hunter by said Isaac Winchester, during his life-time, for the sum of five hundred dollars, and transferred by said Winchester on the 28th day of January, 1851, to said Hunter. New Madrid, Mo., December 28th* 1851. [Signed] Adam Magee, administrator of Isaac Winchester, deceased.”
    Afterwards, under an order of the county court of New Madrid county, Magee sold to the plaintiff, Presley Phillips, for the consideration of $277, all the interest of the estate of said Winchester in the negro boy Frank. This sale was made for the payment of the debts due from the estate of said Winchester. The boy Frank was not present at this-sale to Phillips, but was in possession of defendant, Hunter.
    The court found that the two instruments of writing, above set forth, dated January 28th, 1851, constituted a mortgage of the negro boy Frank to the defendant, Hunter.
    Phillips, after tendering to Hunter, the defendant, the amount due him, after deducting the value of the services of the said negro Frank while in possession of the defendant, and upon the refusal of defendant to deliver up said negro to plaintiff, brought the present suit for his redemption.
    The cause was tried by the court, and judgment was given for plaintiff. Defendant appealed.

      Glover & Richardson, for appellant.
    1. The sale by the administrator to the plaintiff was void. To constitute a sale, an actual or constructive delivery is necessary. There is no pretence that in this case there was an actual delivery to the respondent, neither was there a constructive delivery, for the slave, at the time of the sale by the administrator of the equity of redemption, was in the adverse possession of the appellant. 2. The administrator had no interest in the slave at the time of his sale to the respondent, and therefore could pass no title. According to the finding of the court, Winchester had the right of redemption provided he paid to the appellant a certain sum of money by a given day ; but having failed to pay it, the title to the slave vested absolutely in the mortgagee, and Winchester’s right of redemption was forfeited. 3. On the 28th December, 1851, the administrator received of Hunter $224 20, the balance of the consideration for the purchase of the slave, and delivered him the slave as his property. The slave was a chattel, and if the administrator had the right to sell him, he had the right without an order of the county court, and his sale would carry all the interest of the estate in him. The transaction between the administrator and Hunter on the 28th December, 1851, operated as a sale ; the money was paid and received as the balance due from Hunter for the purchase money and divested all the interest of the estate, so that nothing remained to be sold, and nothing was acquired by the respondent’s purchase. The court does not find that there was any fraud in the payment of the money by Hunter or in getting possession of the slave, and the transaction, therefore, is to be treated as perfectly fair ; and if the sale was within the scope of the powers of the administrator, it was effectual to pass the title. Whether the administrator acted wisely and sold for too little, is not the question, and the only question is one of power. 4. In this case, the administrator did not assign to the plaintiff a cause of action, but sought to sell a specific interest.

      T. Polk, for respondent.
    1. The motion for a review filed by appellant, defendant below, does not make a case containing any of the evidence ; consequently there could be no review upon the evidence, either of questions of law or of fact, and the court below committed no error in overruling said motion. (Code of Practice, art. 16, § 3 ; Skinner v. Ellington, 15 Mo. 488 ; Raymond v. Edgar et al., 19 Mo. 32.) 2. This court will not reverse the judgment of the court below for the reason that the finding of the court below is not supported by the evidence. That is a matter left by this court to the lower court. And if that court refuses to set aside the verdict of a jury, or its own finding, on the ground of its not being warranted by the evidence, this court will not reverse its own judgment because of such refusal. (Skinner v. Ellington, 15 Mo. 488.) 8. The facts found by the court warrant the conclusions of law to which it came. And such being the case, this court will not reverse the judgment of the court below as this case is presented on the record. 4. Under the facts of this case, Winchester had a right to redeem the slave Frank. (Williams v. Rower, 7 Mo. 556.) It matters not that the time fixed for paying the debt for which the slave had been pledged by W. to appellant, had passed before the sale of the right of Winchester’s estate in the same was made. Because, what the statute authorized to be sold, and what, in fact, was actually sold by the administrator, was the equity of redemption in the slave. And an equity of redemption in personalty as well as in reality, is the right of the mortgagor to redeem the estate or property when forfeited at law. (Jickling’s Analogy.) 5. The county court of New Madrid county had authority to order the right of Winchester to redeem the slave, to be sold at public auction. (See Code 1845, art. 3, § 6 and 7, p. 83, 84.) 6. But the question whether respondent was clothed with all the rights to the slave that had belonged to Winchester in his life-time, was in no manner raised, as I contend, on the trial of the cause below, and this court ought not; to entertain it. This court will pass only on the questions that were made in the court below. (Gordon v. Gordon, 15 Mo. 215; Long v. Story, ib. 4 ; Chamberlain v. Smith, 1 Mo. 718.)
   Leonard, Judge,

delivered the opinion of the court.

This judgment must be affirmed. Assuming that there was a proper application to the court below for a review of the finding, upon the ground that it was not warranted by the evidence, and that a case has been properly made to subject the decision of the inferior court upon that motion to review here, there is nothing in this part of the case to justify a reversal of the judgment. If we look into the evidence we can not say that the finding was against it, and we may therefore pass at once to the question whether the facts found warrant the judgment the court pronounced upon them.

The original transaction is not only expressly found to have been a mortgage, but is shown to have been such by the specific facts found, and the act of the administrator, in receiving from Hunter the balance of the alleged purchase money, and surrendering the possession of the slave, was neither a new transaction, then passing the title to Hunter, nor a sale-to him of the equity of redemption. The administrator acted upon the representations of Hunter, who insisted that the title had already passed to him, and that there was no equity of redemption in the administrator — the original transaction being, in his view of the matter, a sale, with the privilege of repurchasing, and no.t a mortgage. This transaction was not put in the form of a transfer of the original title of the sale of the equity of redemption, and of course we ought'not to allow it to operate in that way, when the effect would be to defeat the intention of the parties.

The sale made by the administrator, under the order of the county court, was valid, and transferred the equity of redemption, and the non-delivery is no ground of nullity in that transaction. The judgment is affirmed.


author: Ryland, Judge,

text:
    Grider, Respondent, v. Dent, Appellant.
    X. In a suit by a father for the seduction of his daughter, the defendant will not be permitted to prove that the plaintiff had cast imputations upon the virtue of his own mother by giving evidence in a former judicial proceeding that she had had an illegitimate child before her marriage with plaintiff’s father.

      Appeal from Si. Francois Circuit Court.

    This was an action brought by Thomas Grider against Cyrus Dent, to recover compensation for.the seduction by defendant of Susan Grider, daughter of plaintiff. There was a verdict for plaintiff, and the damages were assessed at the sum of $2000, and judgment given for that sum.
    During the progress of the trial, the defendant offered to prove that the plaintiff, Thomas Grider, in defence of a petition for a partition of the slaves and real estate belonging to the estate of Christopher Grider, deceased, (father of plaintiff in this suit,) had offered testimony to prove that Polly Cartée, one of the petitioners in the partition suit, was not a daughter of Christopher Grider, deceased, but an illegitimate daughter of the wife of said Christopher, (the mother of Thomas Grider, plaintiff,) born before her marriage with the said Christopher, and before her acquaintance with him. The court refused to permit such testimony to be given to the jury ; and one of the errors assigned is this refusal; another is, that the damages are excessive.

      Frissell, for appellant.
    1. The action is founded upon the pretence that the father has lost the services of his daughter in. consequence of the wrongful act of the seducer ; but the gist of the action is the disgrace and anguish the father and family are supposed to suffer on account of the act of his child and her seducer. If the father is not disgraced, if his precedent acts show that he has suffered little or no anguish on account of the subject of the suit, why may not his actions, which show the estimation he holds the reputation of his own mother for virtue, be given in evidence in mitigation of damages ? The evidence offered and excluded would, at all events, tend to prove that, for the sake of excluding one of the heirs of his father’s estate from her distributive share, he was willing^ to bring up a transaction half a century old, to the disgrace of the memory of his mother, and which was unknown or forgotten by the present generation. After such an act on his part, he could hardly be supposed to have been disgraced by the false step of his daughter, nor could he reasonably be supposed to suffer much anguish of mind. (See 2 Greenl. Ev. 476.)

      D. E. Perryman, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The only question here is, as to the ruling of the court below in refusing to permit the defendant to prove that the plaintiff had previously, in a judicial proceeding, given evidence that his own mother had given birth to a child before her marriage. The Circuit Court would not permit the proof to be given by defendant, and he brings the case here upon this point; for there is nothing else in the record calling for our attention.

We are inclined to the opinion that this evidence was properly rejected. We can not assent to the proposition that proof of any one act by the parent, totally disconnected with the matter before the jury, however indicative it may be of want of proper moral and natural feeling, can lawfully be given to the jury. This evidence was not in relation to the daughter, nor the character or conduct of the daughter. It bore' no relation towards the father’s conduct in respect to his daughter; it was totally foreign to the matter in controversy. True, it did have a tendency to show the father devoid of natural feelings, of filial afféction — and to convict him of a revolting disregard of the reputation of his own mother, of his own brothers and sisters. But, though the father may have acted like a man void of natural sensibility in one transaction, yet there may be those in his family keenly alive to the best and kindest impulses of our nature and upon whom the blow may have fallen with crushing weight. No ; as it would not have been competent for the father to show how much he did feel for his child — how much he suffered — what were the miseries of his own dwelling, in order to increase the damages, it should not be proved against him that once upon a time he showed a want of heart.

The case of Dodd v. Morris, (3 Camp. 519,) does not support the doctrine contended for by Greenleaf in his work on the law of evidence. (2 vol. p. 476, § 579.) Lord Ellenborough would not suffer the plaintiff’s counsel to introduce evidence as to the character of the plaintiff’s daughter, who had been seduced. He observed that “ the law considered this an action of trespass for assaulting the daughter, whereby the parent lost her service ; and, although by some anomaly, when the loss of service was established, a further compensation was allowed for the injury to the parental feelings, it was necessary to watch that this anomaly should not be carried farther, and that the original scope of the action should not loe entirely lost sight of.” There is nothing about “ proof of profligate principles and dissolute habits of plaintiff himself” in the whole case. In Magrath, widow, v. Browne, (Armstrong, McCartney & Ogle’s Rep. 134,) Brady, O. B., suffered the question, “ Have you had an opportunity of observing the conduct of the plaintiff and her daughter, and if so, have you ever known them to be guilty of any impropriety of conduct ?” to be put to a witness, a lady with whom the plaintiff and her daughter had lodged, and to be answered by the witness, after serious objection and argument. Here, the question was to elicit testimony in relation to matters bearing on the subject before the jury — not character, but conduct, and conduct, too, kindred to the matters before the jury.

Upon the best reflection bestowed upon this case in our power, we come to the conclusion that the evidence below was properly rejected. Let the judgment be affirmed,

with the concurrence of Judge Leonard.


author: Scott, Judge,

text:
    Wilcox, Appellant, v. Daniels & Strickland, Respondents.

      Í. A voluntary dismissal of an appeal by the defendant in an action of forcible entry and detainer, is abreact of the condition of a recognizance to prosecute the appeal with effect and without delay, and the party aggrieved may have relief in an ordinary action on the recognizance.

      Jlppeal from, Jefferson Circuit Court.

    This was an action on a recognizance of appeal, executed by Daniels $s principal, and Strickland as security, on appeal from the judgment of a justice of the peace in an action of forcible entry and detainer, wherein Wilcox, appellant here, was plaintiff, and Daniels, respondent here, was defendant. In this action of forcible entry and detainer, judgment was given for the plaintiff, Wilcox ; and the defendant, Daniels, appealed to the Circuit Court, and filed a recognizance, with Strickland as security, conditioned that he would “ prosecute his appeal with effect and without delay, neither commit, nor suffer to be committed, any waste or damage on the premises whereof restitution was adjudged, and pay all rents and profits, damages and costs, that might be adjudged against him, and otherwise abide the judgment of the Circuit Court.”
    On this recognizance the present suit is brought, and the breaches assigned are, that Wilcox did not prosecute his appeal with effect and without delay, but voluntarily dismissed the same without so prosecuting it; that defendant did not pay to plaintiff the rents and profits and damages justly due him. Plaintiff set forth in his petition that, in consequence of the appeal, he was unable to get possession of the premises in controversy until some time in the latter part of June, 1854, too late to raise a crop of corn upon the same during that year.
    The recognizance was set forth in the petition. The defendants demurred to the petition, and the demurrer was sustained and judgment given thereon for the defendant.

      Green and Chas. Jones, for appellant.

      Pipkin, for respondents.
   Scott, Judge,

delivered the opinion of the court.

The question raised by this record is, whether an ordinary action will lie upon an appeal bond taken in a justice’s court, in a forcible detainer, or whether the appellee is not confined exclusively to the judgment which may be rendered on the appeal in the court in which it may be tried, so that, if he fails to obtain an assessment of the damages he has sustained in that manner, he is remediless.

We are not aware of any principle which excludes the plaintiff from an ordinary action on the appeal bond. It is true he might have resisted the dismissal of the appeal and insisted on his right to have his damages assessed according to the condition of the appeal bond, in the court to which the appeal was taken. But we do not see that his failure to do this should entitle the defendant to the advantage, which he seeks to obtain by his defence to this action. The dismissal contemplated by the 30th and 31st sections of article 1 of the act concerning forcible entries and detainers, is such as is had at the instance of the appellee, and not that which is voluntary. The act of the defendant, in voluntarily dismissing his own appeal, clearly contravened the condition of his bond, that he would prosecute his appeal with effect. We see no difference in principle between this case and that of Cockerill vs. Owen (10 Mo. 287).

With the concurrence of the other judges,

the judgment is reversed, and the cause remanded.


text:
    Richardson and Wife, Appellants, v. Means, Respondent.
    1. Where a slave is conveyed to a trustee to he held in trust for the use of a married woman for life, (she being entitled by the deed of conveyance to the possession of the slave,) and upon her death for the use of the children ; held, that the wife can not in her own name and that of her husband maintain an action for the conversion of the slave. An action for the protection of the legal ownership should be brought in the name of the trustee, or in case of his death or refusal to act, or the existence of any obstacle to the ordinary legal remedy, a proper case fox equitable relief might be made and such relief furnished.

      Appeal from Mississippi Circuit Court.

    This was an action commenced June 17, 1853, by Maria L. Richardson (the husband having afterwards been made a party by an amended petition) for the recovery of a female slave and her two children, alleged in the petition to have been wrongfully taken by the defendant, May 1, 1849, and unlawfully detained by him.
    Defendant, in his answer, denied the title of plaintiff, and claimed title in himself, and relied upon a bill of sale to himself, dated May 1, 1848, of the negress and one child, executed by Thomas R. Richardson, husband of plaintiff, Maria, and co-plaintiff in this action.
    To sustain the wife’s right, she relied on a deed of gift from her father, William C. Bruce, dated April 1, 1845, by which, in consideration of love and affection toward the plaintiff, his daughter, he conveyed the female slave in controversy to one Littleton Jozner, “ upon trust that the said Jozner, his executors, &c., shall permit my said daughter to hold possession of ■and take the use, hire and profits of the said Maria and her increase to her sole and separate use during her life, independent of her said husband ; and at the death of my said daughter, the said Maria and her increase to be equally divided between her children,” &c.
    The bill of sale mentioned above, dated May 1st, 1848, was introduced and proven by defendant.
    . It is unnecessary to set forth the instructions given to the jury, as the decision of the court rests upon grounds entirely unconnected with the instructions given.
    The jury found for the defendant, and judgment was given ■accordingly. Plaintiffs appealed.

      Cates, for appellants.
    1. By the deed of trust, “ the use and possession” of the slave vested in the wife during life, to the exclusion of the husband and Jozner, the trustee. The latter was a mere trustee, to support and maintain the remainder vested in the children; neither the husband nor trustee had the power to limit .or control the action of the wife in the use and possession of the slave; she had the power to sell or dispose for the term of her life ; in other words, she had a life estate, free and independent of all persons, and any violation of her estate was personal to her. Hence, she was the real party in interest, and, by the code, had a right of action for the wrongful conversion and detention. (See Code, art. 3, § 1 and 2 ; 18 Mo. 565 ; case of Rankin, 19 Mo. 493 ; 2 Kent. Com. 162.) The doctrine of the case of Gibbon (20 Mo. 468) is not opposed to the view here contended for. 2. It is a fixed principle of law that in all separate estates of the wife, created by trust deed, with or without the intervention of a trustee, the husband takes the legal estate, and is treated in equity as trustee for the separate benefit of the wife. (Hill on Trustees, 588, 609, and notes referred to.)

      Glover & Richardson, for respondent.
    1. No matter what errors may have been committed, the judgment is for the right party, and must stand. The plaintiff had no status in court, for the bill of sale from Bruce to Jozner put them out. ju Jozner was living, he ought to have brought the suit: if he was dead, the plaintiff ought to have taken the proper steps for the. appointment of another trustee. (Gibbons v. Gentry, 20 Mo. 468 ; Gobin v. Huntington, 15 Mo. 40.)
   Leonard, Judge,

delivered the opinion of the court.

We can not reverse this judgment, no matter how much we may regret that parties, by a slip in the form of proceeding, should subject themselves to costs and delay in the judicial enforcement of their rights. The instructions given are correct in point of law, and this seems to be-admitted ; but the objection is, that the one given by the court upon its own suggestion, was not warranted by any evidence in the cause, and that,, although correct in the abstract, it had the effect of misleading the jury. If this could be made apparent to us, it might furnish sufficient ground for reversing the judgment in a ease where the reversal would avail the party. Here, however, the plaintiffs have stated themselves out of court, and therefore, if the jury were misled, it resulted in no injury to them ; for the reason that, according to their own showing, they had no case entitling them to a recovery. The plaintiffs’ title is derived from the instrument of gift executed by the father, which vests the legal ownership in the trustee for the use of the wife during her life, and upon her death for the use of her children, and the action is to redress a wrong done to the legal ownership, being substantially an action for the conversion of the plaintiffs’ slaves. Under the old form of proceeding, this suit must have been brought by the trustee at law ; but if, from any cause, the legal ownership could not have been made effectual for the protection of the wife’s equitable right, the courts would, at her suit, upon a proper statement of facts, all the necessary parties being before them, have administered the appropriate equitable relief. But it is supposed that all this is changed by the new code, which is true to some extent. It must be observed, however, that the code has not changed the rights of parties, but only provided new remedies for their enforcement; it has not abolished the distinction between equitable and legal rights, but the distinction between legal and equitable remedies, so far, at least, as to provide that one form of suit shall be used for the enforcement of both classes of rights. The case made upon the record was for legal relief; but the case made by the plaintiffs, in proof, was of a different character.

It was the duty of the trustee to protect the legal ownership from violation, and to preserve the property for the use of the parties beneficially interested as they should respectively become entitled ; and if, as before remarked, there were any obstacles in the way of the legal remedy, or the trustee refused to do his duty, then, upon a proper case stated, and proper parties being made, the courts would, in a civil suit under the code, afford relief according to the principles of equity; and the present judgment can not be pleaded in bar of any equitable relief that shall be thus sought by the wife.

The judgment must be affirmed.


text:
    Emory and others, Respondents, v. Phillips, Appellant.
    1. Where in a petition it was charged that the defendant, “without leave and wrongfully entered upon a certain tract of land (describing it) of which plaintiffs were the owners and in possession thereof, &c., and took from said premises a house thereon situated, used and employed as a Methodist meeting-house or church, and carried said house off,” &c.; held, that an answer, in which defendant “ denies that he wrongfully entered upon the premises and took therefrom a Methodist church or meeting-house of said : plaintiffs; and the defendant charges the fact to be, that the house spoken of, was his (defendant’s) property and not owned or claimed by plaintiffs,” (defendant also in the answer claiming permission from one of the plaintiffs to “ do as he pleased with” said house, and denying plaintiff’s possession,) admits the entering and taking away of the house.
    2. In impeaching a witness, evidence of his general character for truth and veracity, among a majority of his neighbors, is inadmissible.

      Appeal from Cape Girardeau Circuit Court.

    This suit was originally commenced before the New Madrid Circuit Court, whence it was taken by a .change of venue to Cape Girardeau Circuit Court. It was an action by plaintiffs, as trustees of the Methodist Episcopal ehurch south, to recover damages for the alleged removal by the defendant of a meetinghouse belonging, to plaintiffs. The allegations of the petition and answer, so far as they bear upon the decision of this court, are sufficiently set forth in the opinion of the court. The finding of the court is as follows : £t That said defendant, before the commencement of this suit, did enter upon the tract of land in plaintiffs’ petition mentioned, and sever and take away from said land a house of the value of $250 ; that, at the time of said entry and the taking of said house, the plaintiffs, as trustees of the Methodist Episcopal church south, were the owners of said land; by reason of which said entry, severance, and taking of said house, the plaintiffs have sustained damage to the sum of $250.” Judgment was accordingly given for plaintiffs for that sum.
    In the course of the trial, portions of certain depositions introduced in evidence by defendant, which were offered with a view to impeach one G. S., a witness for plaintiffs, were excluded by the court. The following questions and answers, contained in the depositions of John Freeman and B. S. Hacker, respectively, were excluded by the court: “ Ques. (to J. F.) Are you or not acquainted with G. S.; and if so, state what is his general reputation for truth and veracity among his neighbors ? Ans. I am personally acquainted with G. S., and his general character for truth and veracity, among his neighbors, is bad; I have heard some of them say that they would not believe him on oath. Ques. (to B. S. H.) Are you or not acquainted with G. S., and do you know the character he bears, among a majority of his neighbors, for truth and veracity? Ans. Yes; I am well acquainted with G. S., and his general character for truth and veracity, among a majority of his neighbors, is bad, and he is not to be believed.” To the exclusion of these answers defendant excepted.

      Polk, for appellant,
    cited 13 Mo. 236 ; Swift’s Evidence, 143 ; 3 S. & B, 336 ; 2 Eayw. (N. C.) 300 ; 3 Bibb, 268 :, 19 Maine, 375 ; 17 Mo. 550.

      N. Holmes, for respondents.
   Ryland, Judge,

delivered the opinion of the court.

The answer of the defendant in this case may be considered as a negative pregnant. There is no denial of his taking away the house as alleged in the plaintiffs’ petition. The plaintiffs charge that the defendant on, See., at &c., “ without leave and wrongfully did enter upon a certain tract or parcel of land, (describing it,) of 'which they were the owners and in possession, and take from the premises a house thereon situated, used and employed as a Methodist meeting-house or church, and carried said house off and away from said premises, to plaintiffs’ damage,” &c.

Defendant denies that he “wrongfully entered upon the premises and took therefrom a Methodist church or meetinghouse of said plaintiffs,” and the defendant charges the fact to be, that the house spoken of was his property, and was not owned or claimed by plaintiffs. He also charges that one of the plaintiffs disclaimed the ownership, and told the defendant he might do as he pleased with the same. He denies that plaintiffs had possession of the premises.

This answer ma.y be considered as admitting the taking away of the house in dispute, and ought to have been so construed by the court below. It does not openly deny the taking; and, although it does not frankly admit it, yet such is the evasive and improper manner of stating the defence, that the law would construe this as admitting the taking, but not the ownership. The right or ownership of the property was all then that was in dispute.

The plaintiffs charge the defendant with two important acts ; the taking away of property is one, and the properly belonging to the plaintiffs is the other. The defendant says, “ the property belongs to me.” He does not deny the taking ; and, unless it is denied specifically, it is admitted. So much, then, for the taking.

Now, as to the evidence of character, the testimony of Hacker was properly rejected; the question put to him, about the character the witness bears among a majority of his his neighbors, is not the proper legal and formal question; and parties, when they attack a witness, must do so according to the rules prescribed by law, as laid down by the elementary writers. The same remarks are applicable to Freeman’s testimony. In Adams v. Hannon, (3 Mo. 225,) this court held that “ what is the character of the plaintiff for chastity, among the majority of her neighbors, with whom the witness had conversed ? is, we think, a question not at all calculated to elicit an answer proper to prove general character.”

But the principal fact proved by the witness, whose character was-attacked, was, or ought to have been, taken by the court below as admitted; that is, the taking off the house. The defendant’s answer may be considered as admitting this, by the manner it is set forth. In looking over the whole record, there appear no grounds upon which to reverse the judgment of the court below; the finding may be considered sufficient, and it warrants the judgment.

The other judges concurring,

the judgment below must be affirmed.


text:
    Miles, Plaintiff in Error, v. Smith et al., Defendants in Error.
    1. The personal representative of a mortgagor is a necessary party to a suit to foreclose a mortgage.

      Error to Marion Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Pratte and Redd, for plaintiff in error.
    1. The court erred in deciding that the personal representative was an indispensable party to this action. (Story’s Eq. PI. § 84, 175, 186, 196,; 2 Atkins, 886; Edwards on Parties, 91, 92 ; 3 P. Wms, 333, note a.)

      Vansweringen, for defendants in error.
   Ryland, Judge,

delivered the opinion of the court.

This is a petition brought by the assignee of a mortgage against the heirs and widow of the mortgagor, praying judgment for the debt, that the equity of redemption be foreclosed, and that the mortgaged land be sold in the manner provided for by the statute of the state.

Ezra S. Ely sold the land to Smith, who afterwards died. Ely took from Smith the mortgage for”the unpaid purchase money, which was secured also by the notes of Smith. Ely assigned the mortgage debt to Carswell and McClelland, and they assigned it to plaintiff.

The defendants rely upon the statute of limitations as a bar to the notes given for the debt, and upon an offset of money received by Ely to enter land for Smith, which Ely had authority to lay out in land for said Smith. There was a trial by jury, and verdict and judgment for defendants. After verdict for defendants, plaintiff made amotion for new trial, which was overruled. The Circuit Court decided that the personal representatives of the mortgagor, Smith, were necessary parties, and as they had not been made parties,4 that court dismissed the suit without prejudice to the plaintiff. Under our system of law upon a proceeding to foreclose a mortgage of land, the personal representatives of the mortgagor ought to be made parties to the proceedings.

Upon this ground alone the judgment below must be affirmed, leaving the other matters in the case still to be decided between the parties in another suit, should one be brought;

the other judges concurring.


text:
    Wilbur, Respondent, v. Clark et al., Appellants.
    1. A., a member of a firm composed of A., B. and C., sold out to B. and C.; and the latter, with D. and E. as securities for the performance of their obligation, assumed to pay the debts of the partnership, and in particular a note for $488 18, due from the partnership. B. and C. failed to pay said note, and A. having paid a judgment recovered thereon in the state of Iowa against himself and his co-partners, brought a suit against D. and E. for indemnification. Held, that the entire correspondence between the note set out in plaintiff's petition and that described in a transcript of the record and proceedings in the Iowa suit, would warrant the court in finding that the notes described were the same note.
    2. Where a cause is tried by the court sitting as a jury, it is not erroneous to refuse instructions asked by either party to the suit.

      •Appeal from, Franklin Circuit Court.

    This was a suit instituted by Horatio N.. Wilbur against Jacob Clark and Randolph W. Apperson, on the following obligation, to-wit: “ I, Horatio N. Wilbur, of the city of Keokuk, county of Lee, and state of Iowa, have this day sold all my interest in the shoe and boot concern of Wilbur, Newman & Co., to John Cunningham and Lorenzo Newman, principals, and Jacob Clark and R. W. Apperson, securities, for the sum of $485 04, paid and to be paid in the following manner, viz.: $184 25 in hand, and $800 79, my part of the debts of the concern, as may be seen by reference to a note held against the firm by Manny & Weld for $488 18, dated September 29, 1848 ; and one note held by How, Claflin & Cook for $414 18, of the same date, each to run four months from date. It is agreed in this sale that the said purchasers and their said securities assume the payment of the above specified debts, and are hereby bound, with their heirs, executors and assigns, to release the said Wilbur from the aforesaid liabilities, by their (the said purchasers) paying the whole amount of said debts, &c. The said Wilbur this day gives up to the said purchasers all his interest in said concern; and the said purchasers, with their securities, are bound to fulfil their part of this obligation by their subscription of their names hereunto, this 10th day of November, 1848. [Signed] Lorenzo Newman, John C. Cunningham, Jacob Clark, R. W. Apperson.”
    The breach of the agreement assigned by plaintiff was, that the note described above, for $488 18, due Manny & Weld, was not paid by defendants, or by Newman or Cunningham, their co-obligors ; but that judgment was obtained in the state of Iowa on said note against plaintiff, Wilbur, for an unpaid balance due said note of $216 92, which said judgment was satisfied by plaintiff.
    In support of petition, there was introduced in evidence a transcript of the judgment and proceedings in the district court of Desmoines county, in the state of Iowa, in a case between Manny & Weld, plaintiffs, and Wilbur, Newman & Cunningham, defendants. This suit was on a note identical in description with that mentioned in the above obligation. Judgment was given in this suit against the defendants for an unpaid balance of $216 92. This judgment was satisfied by Wilbur, by the payment of $200. Defendants objected to the admission of this transcript in evidence : the objection was overruled.

      The cause was tried by the court sitting as a jury, and, the defendants having been found by the court to be indebted to the plaintiff in the sum of ¡§236 82, judgment was given against the defendants for that sum. -In the course of the trial the court refused to give certain instructions asked for by defendants. Defendants appealed to this court. ‘

      Charles Jones, for appellants.

      Stevenson, for respondent.
   Scott, Judge,

delivered the opinion of the court.

There is nothing in this case for which it should have been brought here. The objection to the depositions, growing out of the alleged want of notice, has no foundation in fact, as the notice, with its service, is in the record.

The entire correspondence between the note sued on in Iowa and described in the record of the judgment obtained in that state, and that set out in the petition in this cause, amply sustained the court in the finding that it was the same instrument. There was no evidence that there were two notes alike in sums, dates and terms of payment between the parties to that instrument. The evidence, under the circumstances, was almost conclusive.

The obligation incurred by the defendants, was to pay the entire debt for the plaintiff. The plaintiff, by the terms of the agreement, was to be released from the aforesaid liabilities by the defendants paying the whole amount of the said debts. One of these debts was afterwards sued on, and a judgment was recovered in Iowa against the plaintiff, which he satisfied.

As this was a trial by the court, there was no impropriety in refusing instructions. The law is properly declared on the facts found. The judgment is affirmed, with ten per cent, damages ;

the other judges concurring.


text:
    Green’s Administrator, Defendant in Error, v. Virden and others, Plaintiffs in Error.
    1. Where, in a case of the death of one of two partners, the survivor gives the bond required by the 50lh and 51st sections of the first article of the administration act (R. C. 1845, p. 70), with approved securities; held, that such survivor can not be removed by the probate court and deprived of his right to the control and management of the partnership effects, on the ground that he has, since the giving of the bond, become a non-resident of the state.

      Error to St. Charles Circuit Court.
    James Green was, in his life-time, a partner with Yirden, plaintiff in error, in a saw-mill. After Green’s decease, letters of administration on his estate, bearing date April 6th, 1853, were granted to Robert H. Parks, defendant in error. Yirden, July 11th, 1858, gave bond as surviving partner of the firm, in pursuance of § 51 of article 1 of the administration act of 1845, and entered upon the management of the effects of the partnership, and sold the mill and its appurtenances for $1600. The county court of St. Charles county, April 5th, 1854, revoked the letters which had been granted to Yirden as surviving partner, because he had ceased to be a resident of the state of Missouri, and on the 28th of September, 1854, granted letters de bonis non on the partnership effects to Parks, defendant in error. The said Parks instituted this suit October 11, 1854, against Yirden and his securities, to recover $1600 received by Yirden from the sale of the mill. The breaches of the bond assigned were that Yirden had not used due diligence and fidelity in closing the affairs of the partnership ; that he had not applied the property thereof towards the payment of the debts of the partnership ; that he had not paid over to the plaintiff, Parks, the partnership funds or property, and more particularly that he (Yirden) had received $1600 belonging to the partnership of Green & Yirden, and had not applied any part thereof to the payment of the debts of the firm, and that the debts of said firm are and remain unpaid ; and, although said Yirden’s letters bf administration on said partnership have long since been revoked, and plaintiff (Parks) has been appointed and qualified administrator de bonis non thereof, yet defendant (Yirden) has not yet paid and delivered to plaintiff the money, effects and property belonging to the said partnership of Green & Yirden.
    Yirden, in his answer, denied that he had not used due diligence and fidelity in closing the affairs- of the partnership, and that he had failed to apply the property or any part thereof towards the payment of the debts of the partnership, and claimed a set-off of $688 92 for moneys paid out by him on account of and for work and labor performed by him for the partnership, and about the partnership.
    The court, on motion of plaintiff (Parks), struck out of the answer all that part of the answer which set up as off-set to plaintiff’s demand the services performed by defendant (Yirden) and his hands, wagons, teams, board of hands hired, and cash paid out for said firm, performed, furnished or paid prior to the death of James Green.
    The cause was tried by the court sitting as a jury, and after making an allowance to defendant (Yirden) for commission and for money paid out by him for the partnership, of the sum of $118 17, judgment was given for plaintiff for the sum of $1651 11.

      C. D. Drake, for plaintiffs in error.
    The court erred in rendering judgment for the following reasons : 1. The defendant below has never ceased to be legally qualified for the “ management” of the partnership effects. Having given bond therefor, as required by law, he was entitled to hold and manage those effects as surviving partner. 2. The county court of St. Charles county had no legal authority to revoke his letters of administration,” because no letters of administration were ever legally granted to him ; and because, if there had been, there is no law giving that court the power to make such a revocation, on the ground of the surviving partner having become a non-resident of the state.
    Such a power can not properly be established by inference, which is the only way that the defendant in error seeks to establish it. If inference is to be resorted to, it is decidedly against the power, on the principle, expressio unius est ex-clusio alterius. The same law which regulates the obligations of surviving partners regulates the powers, rights, duties and obligations of executors and administrators. It declares that the letters of an executor or administrator shall be revoked, if he cease to reside in the state ; but it does not declare that, if a surviving partner cease to reside there, he shall be discharged from the management of the partnership estate. Therefore, the principle above cited applies. But further, there is a most essential difference between an administrator and a surviving partner. The former is the mere creature of the law, administering an estate for the benefit of all parties interested in it, but having, as administrator, no interest in it. A surviving partner is, by the general law, the actual proprietor of the partnership effects ; and he is required to give bond, simply to insure the application of those effects, first, to the payment of the partnership debts ; and, secondly, to the payment of the deceased partner’s share of the concern to his legal representatives. He has no functions to perform under the orders of the county court in relation to the partnership effects. That court has no right to allow demands against him, as surviving partner, to direct him to sell property or otherwise to control him, except to cite him to account and to adjudicate upon his account. If he fail to give bond, as required by law, the partnership effects are taken out of his hands ; but if he give bond he is entitled to hold them wherever he may reside; his bond being considered as security for their faithful application, as required by its terms. Hence, if the county court granted letters of administration in this case to Yirden, such letters were a mere nullity, not being authorized by law, and the assumed revocation of them was a nullity, for the law gave no power to make it. 3. The administrator of a deceased person has no right of action against a surviving partner, who has given bond as required by law, except in one of two cases ; either, first, to recover what is due from the partnership to the decedent’s estate; or, second, to recover moneys which he has been obliged to pay as administrator, and which the surviving partner had partnership effects sufficient to pay, and failed to pay. (See condition of the bond as prescribed in § 51 of the administration act.) The petition, in this case, does not aver that any thing was due from Yirden to his deceased partner’s estate ; but proceeds upon the mere naked ground that Yirden had not used due diligence in closing the partnership affairs, and had not paid the partnership' debts. This was no breach of the bond, so far as the administrator was concerned : the creditors of the firm were the only persons who could sue on the bond, on the ground of the non-payment by Virden of those debts, unless the administrator had been compelled to pay debts which the survivor ought, to have paid. 4. Even if any thing was due to the administrator in the settlement of the partnership affairs, he was not, by the terms of the bond, bound to pay it until the expiration of two years after the date of the bond. This suit having been brought in less than that time, after the date of the bond, can not be maintained. 5. The judgment of the court necessarily assumes that the attempted displacement of the surviving partner, made by the county court, was a legal act, and was effectual in displacing him; and therefore the points above made, in regard to that, apply here. If those points are tenable, then the finding of the court was erroneous. By the finding of the court no breach of the bond was established. The court seems to have proceeded upon the ground that the action of the county court entitled the administrator to recover from the survivor the entire fund received by him from the sale of the partnership effects, which is manifestly erroneous ; for, after the survivor had once given bond, if he were even legally displaced by the county court, the administrator o.£ the deceased could maintain no' action against him, except in the cases designated in the third point above made.

      J. D. Coalter, for defendant in error.
    1. The county court had the power to remove the surviving partner upon his becoming a non-resident, and deprive him of the power of administering on the partnership effects. The statute gives this power by implication. It speaks of this as a case of administration, and requires the surviving partner to give bond “ in such sum and with such securities as is réquired in other cases of administration.” (See § 50, 52 and 58, art. 1, tit. “Administration,” R. C. 1845, p. 70, 71 and 72.) It is clearly within the spirit and meaning of the statute that neither this nor any other administrator of a deceased person’s effects shall be a nonresident of the state. 2. The court committed no error in striking out part of the defendant’s answer. The defendant (Yirden) sought to set up his individual claim, as one of the partners, as an offset against the demand made upon him to turn over the partnership effects. This he had no right to do.
   Scott, Judge,

delivered the opinion of the court.

The defendant (Yirden) and James Green, deceased, were partners. Green died, and the defendant (Yirden), his partner, gave the bond required by the statute, and retained the control of the partnership effects. Afterwards, the county court of St. Charles county removed Yirden and revoked the powers granted to him, because he became a non-resident, and appointed Parks, administrator de bonis non, (as he is termed in the proceedings,) of the partnership effects, who brings this suit on the bond given by Yirden as surviving partner, alleging breaches of its several conditions. The record raises the question, whether a surviving partner, who gives the bond required by the statute for the due management, of the partnership effects, can, for non-residence, or any other cause, be removed by the probate court in the same manner as an ordinary administrator.

The provision requiring the surviving partner to give bond for the use of due diligence in the management of the partnership effects, is a new one, in derogation of the rights of the surviving partner, as they existed at common law. All interference with his rights must have a support in the statute law, and we are restrained from going farther in diminishing his control over his goods than the words of the law fairly warrant. It is to be borne in mind that the survivor is the owner of one half of the effects. Where the surviving partner fails to give bond, and the administrator of the deceased partner takes charge of the partnership effects, he can not prosecute suits in his own name as administrator, but he is compelled to use the name of the surviving partner. When the survivor elects to take the control and gives the bond required by law, the powers to be exercised over him are statutory. The bond is a pledge for the security of that portion of the effects belonging to his deceased partner’s estate committed to his charge. The 52d section of the 1st article of the administration law enacts that “ the county court shall have the same authority to cite such survivor to account, and to adjudicate upon such account, as in the case of an ordinary administrator, and the parties interested shall have the like remedies, by means of such bond, for any misconduct or neglect of such survivor as may be had against administrators.” There is nothing here like a power of removal. On the contrary, from the language of the statute, it would seem that the remedy against the survivor is to be had by means of the bond. It would be against all principle to assume by implication a power of taking away the right of control which a man has over his own property. There is no hardship in this conclusion. The sureties of the survivor must be such as the law requires for administrators. They will be residents of the county, and if the survivor absents himself, his bond and sureties will be accessible to all who may suffer by reason of his neglect.

The judgment is reversed ;

the other judges concurring.


text:
    Holliday, Respondent, v. Atterbury, Appellant.
    1. The supreme court will not reverse a judgment of a lower court because the verdict of the jury is against the weight of evidence.

      Appeal from Shelby Circuit Court.

    This was a suit originally instituted in the Circuit Court of Monroe county, whence it was taken by change of venue to the Circuit Court o.f Shelby county. The plaintiff (Holliday) prayed judgment for the possession of a certain negro slave named Nance, and her child, and damages for their detention. Defendant (Atterbury), in his answer, denied plaintiff’s alleged ownership of said negro slave and child, and claimed to own them in his own right.
    On the trial, the following facts appeared in evidence: The slave Nance had belonged to plaintiff (Holliday), whose daughter married defendant (Atterbury) in the year 1840. In 1843, the slave Nance was in possession of Atterbury and remained so until some time in 1853, about eighteen months after the death of Mrs. Atterbury, when, upon her going to the house of plaintiff (Holliday), she was retained by him and prevented from returning to defendant’s possession. Holliday hired Nance to one Brown, with whom she remained a few days, and from whose possession she was taken by defendant, without the permission and against the objection bf the said Brown ; whereupon the present suit was brought. There was evidence pro and con bearing upon the question whether Holliday, the plaintiff, had made a gift or a loan of the slave Nance to his daughter, Mrs. Atterbury. It is unnecessary to set this forth.
    The court, on motion of plaintiff, gave the following instructions, to-wit: “1. Although the sending of the negro woman in contest to the defendant and his wife, the daughter of plaintiff, unaccompanied by a declaration that the negro was placed with defendant and his wife as a loan, raises a presumption that the negro was a gift, yet this is a mere presumption, subject to be rebutted and explained by evidence. 2. If the jury believe, from the evidence in the case, that said negro girl was not placed by plaintiff with defendant and his wife as a gift, and was not so meant and intended, and said negro was not in fact given by plaintiff to defendant and his wife, they should find for the plaintiff. 3. If the plaintiff exhibited to defendant a list of advancements in 1844, that he said he had made to the defendant and his wife, and requested defendant and wife to sign a receipt for the same as advancements made to them at that time, and said defendant and wife signed a receipt for said advancements, and said negro was not included in the list and receipt, this is evidence from which the jury may find that the parties did not understand that said negro was given to defendant or wife. 4. If the jury find from the evidence in the case that the negro girl was not understood by the parties to be placed in possession of defendant or his wife as a gift, they should find for the plaintiff, although the plaintiff might not have said to defendant or his wife at the time of placing the negro there, that she was put there as a loan ; and it is competent to find the fact of gift or loan from all the evidence in the cause.” To the giving of the foregoing instructions for plaintiff defendant exeepted. The defendant then asked and the court gave the following instructions: “1. If the jury believe from the evidence that the plaintiff sent the negro Nancy with his married daughter, Mrs. Atterbury, to her house, and permitted her to remain there to serve his said daughter, the law presumes that it was a gift of said negro to his said daughter, and the jury must find for the defendant, unless plaintiff has proved to the satisfaction of the jury that he only loaned said negro to his daughter, and that it was expressly understood not to be a gift at the time, they must find for defendant. 2. Although the jury may believe from the evidence that the defendant has admitted that plaintiff did not give said negro to his daughter nor to himself, yet plaintiff is not bound by such admission, if they were made in ignorance of his rights. 3. The jury should not take into consideration any declaration made by plaintiff, in the absence of defendant, in regard to their title to said negro in question. 4. If the jury believe from the evidence that plaintiff sent the negro Nancy to defendant’s house, with his daughter, and that said negro remained there a considerable length of time, they must find for defendant, unless the plaintiff has proved to their satisfaction in this case that it was expressly understood between the parties at the time that the negro was sent as a loan and not as a gift.”

      Wm. M. Cooke, for appellant,
    .cited Martin v. Martin, 13 Mo. 66.

      Glover & Richardson and Carr, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The only point in this case is, that the verdict is against the evidence, and the defendant therefore contends that the Circuit Court ought to have set it aside and granted a new trial.

In looking over the evidence. preserved in the bill of exceptions, we have no doubt that it was sufficient to carry the ease to the jury, and this court does not disturb a verdict because it is against the weight of evidence. There is no question of law for our adjudication ; the instructions were given for both parties as they were asked for, and these instructions presented the law of the case fairly to the jury.

It has long been the practice of this court to refuse to interfere with the verdicts of juries, because it was considered that the evidence did not support such verdicts. These matters more properly employ the discretion of the lower courts, and we will not interfere with such discretion.

The judgment must be affirmed ;

the other judges concurring.


text:
    Mitchell, Appellant, v. Griffith, Respondent.
    1. Where, in a suit executed in the year 1847, while the act of Jan’y 15, 1847, (sess. acts, 1847, p. 63,) regulating the interest of money, was in force, the jury found that the interest reserved — ten per cent. — exceeded the lawful rate of interest by four per cent.; held, that the court committed no error in deducting from the principal of the note the interest upon the same at four per cent, for the whole time the note was running, that is, from its date to the date of the judgment, and in giving judgment for plaintiff for the balance only of the principal.
    2. Nor is it error in such a case to give judgment against plaintiff for costs.

      •Appeal from Hannibal Court of Common Pleas.

    The fact3 sufficiently appear in the opinion of the court.

      R. F. Richmond, for appellant.
    The jury having found for the plaintiff (appellant), no motion was made for ai new trial. The error complained of is in the judgment rendered by the court after verdict. So far as the plea of usury was concerned, there was no dispute about the facts, and no issues to be settled not apparent from the pleadings and papers. The note sued on was dated August 16th, 1847, and made payable on the 1st November following, with ten per cent, interest from date. The respondent sets forth in his answer, and shows by his proof, that this note was for a deferred payment on the purchase of a tract of land.
    Eor appellant it is contended, 1. That the note was not for usurious interest under the act of 1847. 2. The defendant was estopped by his own act to set up the plea of usury. 3. The court, at all events, erred in deducting from the principal sum named in the note four per cent, per annum from the date of the note till the judgment, as four per cent, only from the face of the note should, under any circumstances, have been deducted — as the note called for ten per cent, being four per cent, only above six per cent., the legal interest.

      Glover & Richardson, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This is a suit upon a promissory note by plaintiff, as assignee of Ely, against the defendant. There was a trial by jury and verdict for plaintiff, with a special finding that the interest reserved exceeded lawful interest four per cent. The court deducted from the principal of the note a sum equal to four per cent, per annum on the amount of the note, and gave judgment for the plaintiff for the balance of the principal, and then gave judgment against the defendant in favor of the school fund for six per cent, interest per annum, on this balance of principal, and rendered judgment against the plaintiff for costs. The plaintiff excepted to the opinion of the court in rendering the above judgment, and brings the case here by appeal, and ashs for a reversal of this judgment, and for judgment to be rendered in his favor for the principal of the note and interest thereon at ten per cent.; but if this be denied, then for judgment for the principal of the note, less four per cent.

The record is a voluminous one, and full of details of evidence and instructions ; but this court will pay no attention to them, as the only matters complained of rest entirely upon the judgment given by the court on the verdict. The plaintiff did not move for a new trial, and he complains of the 'court in rendering the judgment only.

This case presents questions in regard to a proper construction of the act of 1847 regulating interest. However, before I notice that act, it may be well enough to notice the point raised by the plaintiff’s counsel, that this is no case of usury ; that it is a note given for a deferred payment of an instalment due on the purchase of a tract of land, and is not a borrowing and lending, nor such a transaction as can be considered usurious under our statute. The plaintiff, in his petition, describes the note as bearing date the 16th August, 1847, for the sum of three hundred and seventy-nine dollars and seventy-two cents, payable on or before the first day of November ensuing, with interest on the same at ten per cent, per annum from date, for value received, payable to Ira Stout. Now at the date of this transaction, our statute did not allow of more than six per cent, interest. The testimony shows, that Griffith purchased a tract of land from Stout for $6284, cash, all paid except the note in suit here ; and, from the note, it is plain that more than lawful interest was to be paid for the forbearance of the sum therein specified for the short time between 16th August and 1st November, 1847. Now it was competent for these parties to have so contracted that usury could npt have been predicated on the balance of the consideration money not paid down ; but we think that they have failed to do so in this case, and that the note calls upon its face for the interest not allowed by law. In the case of Beete v. Bidgood, (7 Barn. & Cress. 453; Chit, on Cont. 710,) where a contract was made for the sale of an estate at a certain price, and it was agreed that this should be paid by instalments at certain future days, with interest calculated at six per cent, per annum, and promissory notes were given for those sums compounded of the instalments and that which was called interest, the court of king’s bench held that the whole must be considered as the purchase money of the estate, and that the bargain was not usurious. There is nothing in the case before us to satisfy us that it was the bargain, at the time the purchase of the land was made, that the note was to bear ten per cent, interest from date, as a part of the consideration money to be paid for the land. The money was nearly all paid down, and for the small balance still unpaid the note was given, and ten per cent, interest from date was agreed to be paid. It was a cash sale, and there does not appear to have been any contract or understanding in regard to the note at the time. We consider, then, that it was a trans - action in which usury could make its appearance, and the note and finding of the jury satisfy us on this point. (Evans v. Negley, 13 Serg. & Rawl. 218.)

In an action where usury is found by a jury on defendant’s plea, or by the finding of the court, “ the. court shall render judgment on such verdict or finding for the real sum of money or price of the commodity actually lent and advaneed or sold, after deducting from the real sum of money or price of the commodity, as aforesaid, the amount of interest contracted or agreed for, received or taken, over and above the interest at the rate of six per cent, per annum, and shall render judgment for interest on the real sum of money or price of the commodity, as aforesaid, after making the deduction as aforesaid, at the rate of six per cent, per annum ; upon which judgment the court shall cause an order to be made, setting apart the whole interest for the use of the county in which the suit may be brought, for the use of common schools, &c., and the defendant may recover his costs.” (Sess. Acts, 1847, p. 68.) We agree with the construction put upon this statute by the court below. Where the note has been running more than a year, it is not sufficient by the act to deduct from the principal the excess of interest agreed on above six per cent.; but the deduction must be the amount agreed for “ over and above the interest at the rate of six per cent, per annum.” When the note calls for ten per cent, interest and has run only one year, it is sufficient to deduct four per cent. ; but if it has run more than one year, the interest agreed for must be calculated for the whole time it has run, and then the excess over the interest at six per cent, per annum is to be deducted. This view of the act accords with the judgment below, and the court has the power to give the defendant costs.

Upon the whole record, the majority of this court is of the opinion that the judgment below should be affirmed. It is accordingly affirmed;

Judge Leonard concurring; Judge Scott dissenting.