text:
    Perselly, Appellant, vs. Bacon, Respondent.
    1. The words “ you swore to a lie before the grand jury” held actionable.

      Appeal from Folie Circuit Court.

    Action for slander. The petition stated in substance that the defendant charged the plaintiff with “ swearing to a lie before the grand jury,” and that this charge was made in allusion to the testimony given by plaintiff before the grand jury while investigating a charge of open lewdness and lascivious behavior against a slave. A demurrer to the petition was sustained by the Circuit Court.

      F. P. Wright, for appellant.
    1. The words are actionable in themselves. They import a charge of false swearing in a judicial proceeding, and before a tribunal competent to administer an oath. (7 B. Monroe, 475. 2 Conn. Rep. 40. 2 Serg. & Raw. 469.) If the words are actionable per se, the defendant is liable, even though they were used in reference to an extra-judicial oath. (3 Penn. & Watts, 103. 10 Serg. & Raw. 47.) 2. But the grand jury had authority to administer the oath. Even if they cannot indict a slave for a misdemeanor, it is their duty to inquire into all violations of law in their county and make presentments. (SeeR. C. 1825, tit. Slaves, §36, 37. Ward v. The State, 2 Mo. Rep.) „

      W. H. Otter and S. A. Bennett, for respondent.
    The words alleged to have been used by defendant do not necessarily imply a charge of perjury, and the colloquium, instead of showing that they did, shows that they did not amount to such a charge. Grand juries have no cognizance of misdemeanors when committed by slaves, and so the oath under which plaintiff was charged to have sworn falsely, was one which the grand jury was not authorized to administer. (R. C. 1845, tit. Crimes and Punishments, art. 9, secs.'27, 28 ; tit. Practice and Proceedings in Criminal Cases, art. 3, sec. 4. Mahan v. Berry, 5 Mo. Rep. 21. 20 J. R. 344, and cases cited. 2 J. R. 10.
   Ryland, Judge,

delivered the opinion of the court.

This is an action of slander. The words charged as spoken by the defendant are, in part, as follows : “ You, (said plaintiff meaning,) swore a lie before the grand jury. “ You, (plaintiff meaning,) swore a lie before the grand jury, and I can prove it.” “He, (said plaintiff meaning,) swore a lie before the grand jury, and I can prove it.” The defendant demurred to the petition ; the court sustained the demurrer, and rendered judgment for the defendant.

The plaintiff brings the case here by writ of error ; and the only question before us is, whether the words in the petition are actionable of themselves or not. I have disregarded all the inducement in the petition, about there being a certain matter depending before the grand jury, of and concerning a certain charge- against a certain negro slave; whether said slave had been guilty of open, gross lewdness and lascivious behavior ; and that the plaintiff was sworn as a witness before said grand jury concerning said offence, against said negro slave, and had given evidence before said grand jury on said matter; and that said offence was properly cognizable before said grand jury, and that these words were spoken of and concerning the plaintiff, and of his being a witness before said grand jury, and of and concerning his evidence given before said grand jury, in the prosecution of said offence against said negro slave. For reasons which I shall hereafter mention, I put out of the case this colloquium-reject it as surplusage ; it does no good, and should do no harm, and I will notice only the charge “ of swearing to a lie before the grand jury.”

By our statute law, the foreman of a grand jury has the right and authority to swear witnesses, and the grand jury the^right to examine witnesses under oath. The oath of a witness then, before a grand jury, is a lawful oath. “ Every person who shall wilfully and corruptly swear, testify, or affirm falsely to any material matter, upon any oath or affirmation, or declaration, legally administered in any cause, matter or proceeding before any court, tribunal or public body or officer, shall be deemed guilty of perjury.” (R. 0. 1845, tit. Crimes and Punishments, art. 5, sec. 1, p. 377.)

The grand jury is a public body, empowered by law to administer oaths to witnesses, and then empowered by law to examine witnesses and to require witnesses to testify before them. To charge a person with swearing falsely before a grand jury is then, in our opinion, actionable, without laying special damages. The words in this declaration we consider actionable in themselves. “You,” meaning the plaintiff, “swore a lie before the grand jury.” “He,” meaning the plaintiff, “swore a lie before the grand jury, and I can prove it.” Chief Justice Swift, in Chapman v. Gillet, (2 Conn. Rep. 45,) said : “It is a first principle, founded in the nature and fitness of things, that swearing falsely, when under an oath lawfully administered, is a crime. At first, perjury was confined to false swearing in a court of record ; it was then extended to courts not of record.” Smith, J., in the same case, said: “ Upon principles of common law, perjury may be committed before any tribunal in which an oath may be lawfully administered; for, where the law will sanction an oath, it will not refuse its aid to punish a wilful and corrupt violation of it. To constitute perjury, there must be the violation of a lawful oath, taken before a competent jurisdiction. If the oath may not be administered, it is a transaction which no court can recognize; but if the oath may lawfully be given, the law will regard it, and not suffer it to be violated with impunity.” “ An oath,” says Lord Coke, (3 Inst. 165,) “is an affirmation or denial of any thing lawful .and honest, before one or more, that have the authority to give the same for the advancement of truth and right. The same cannot be administered to any, unless the same be allowed by the common law, or by some act of parliament.” “ The law takes no notice of any perjury,” says Blacks tone, “but such as is committed in some court of justice having power to administer an oath, or before some magistrate or proper officer invested with a similar authority. It esteems all other oaths unnecessary at least, and therefore will not punish the breach of them.” (4 Black. Com. 137.) Hawkins observes : “ that all such false oaths as are taken before those who are any ways intrusted with the administration of public justice, in relation to any matter before them in debate,'or that are taken before persons authorized by the King to examine witnesses in relation to any matter whatsoever, wherein his honor or interest are concerned, are also punishable as perjuries. Therefore, it hath been holden that, not only, such persons are indictable for perjury who take a false oath in a court of record, but also those who forswear themselves in a matter judicially depending before any court of equity, spiritual court, or any other lawful court.” (1 Haw. Pleas. Cro. 172, 173.) “ The principle to be extracted,” (says Hosmer, J., in the same case from Conn. Rep., (Chapman v. Gillet,) after citing the authorities which I have quoted above,) “ from the authorities cited, is obviously this ; that all oaths taken by witnesses before acknowledged authority, which are necessary, and concern the honor or interest of the state, the law recognizes, and if violated, will punish. This is the true spirit of the common law, founded, as it is, on private justice and public convenience.” In the case of Ramey v. Thornberry, reported in 7 B. Monroe’s Rep. 475, the Court of Appeals of Kentucky held that the words, “Ramey swore a lie in the Pike Circuit Court, on the trial of the Commonwealth against Davidson Mays,” were actionable in themselves. The court observed: “To charge a person, in general terms, with having sworn a lie, or having sworn falsely, is certainly not actionable. But here, the words very clearly import a charge of false swearing in a judicial proceeding, and before a tribunal competent to administer an oath.”

Apply this doctrine to the case at bar, and it will be seen that, the words here spoken are equally actionable of themselves. It was before a grand jury; a competent body to administer oaths, and before which, a false oath may be perjury by the statute law. In Ceely v. Hoskins, (Croke Charles, 509,) the words were : “ Thou art forsworn in a court of record, and that I will prove.” After verdict for the plaintiff, the judgment was arrested, the Common Pleas holding the words not actionable. But the King’s Bench reversed the judgment of the Common Pleas, and the plaintiff recovered. The court held, clearly, that the action well lay; “ and it shall be intended that he spake these words maliciously, accusing him of perjury, and for a false oath, taken judicially, upon judicial proceedings, in a court of record, and shall be understood according to the common speech and usual intendment.”

In Fowls v. Robbins, the words were: “You swore false at the trial of your brother, John.” The declaration charged the words, without any averment that the words were spoken concerning the testimony given by plaintiff at the trial referred to. These words were held actionable ; and the motion to arrest was overruled. (12 Mass. 498.) In this case, Jackson, J., said: “It is not necessary that the defendant should have used technical language, and have stated his charges against the plaintiff with the accuracy that would be required in an indictment. If the words can be understood only as conveying a criminal charge, and would be so understood by those who heard them, the court cannot undertake to say that they are not actionable, although the defendant may have misappre-bended the nature of tbe crime with which be bag charged the-plaintiff, or may have threatened him -with a punishment, which the law does not inflict for such an offence. As words gradually acquire a new meaning, or as new words come into general use, the court and jury cannot profess to be ignorant of such changes ; and thus there are, perhaps, many words that would now be deemed actionable, as importing a slanderous charge, which would not have been so considered in the time of Croke. Á reference to ancient cases, therefore, although useful to ascertain the law, will not serve to fix conclusively the construction of the words, nor the sense in which they were uttered by the defendant, and understood by the hearers. * * * The word, “ forsworn,” if not further explained at the time,, might not necessarily convey the meaning of perjury; but, “ forsworn at the trial of A. B.” would convey no other meaning to any man in the community, and the court is bound to understand the words according to their general use and acceptation.”

To say, “Thou wert forsworn at such a trial,” with reference to a trial where the offence of perjury might have been, committed, is actionable.

Where reference is made to a particular cotot, the imputation is actionable, if perjury could have been committed: there. In such a case, however, it is incumbent on the plaintiff to show that the perjury could have been committed. To-say, “ Thou wert forsworn before my Lord Chief Justice in evidence,” is actionable. (Starkie on Slander, p. 51-2-3,). The defendant said: “Thou art a forsworn knave.” The plaintiff asked, “Where?” The defendant replied, “In the liston Court.” These words were held actionable — the court alluded to being a Court Leet, where the offence of perjury might have been committed. (Marshall v. Dean, Croke Eliz. 720.) All the, court here held, (says the reporter,-), that the action well lay : " Eor this action is given by reason of the discredit of such words amongst the neighbors.”

There cannot be a doubt of the fact, that perjury may, by our law, be committed by a witness before the grand jury. Then,. applying the principles extracted from the various authorities cited, and it becomes manifest that the words charged in this .case are actionable per se.

A grand jury is a lawful body, empowered to hear and investigate charges of a criminal nature against persons within their proper county. A grand jury has the power to examine witnesses ; to compel witnesses to testify before them. The foreman of the grand jury can administer the oath to a witness. The statute law makes false swearing before such a body perjury. Then, to charge that a person swore a lie before the grand jury, is actionable, without any inducement. Every per.son in the community, who hears such a charge against another person, understands, at once, that the person accused has been ■charged with the crime of perjury. No inuendo is necessary to explain such a charge; it is understood in the community, .and is actionable, because of the u discredit of such words ¡amongst the neighbors.” The defamation of character is one •of the true grounds on which this action ought always to have been put, and not the liability to a prosecution for the charge ■or alleged imputation alone be considered the real ground. Who now would pretend to adhere to the old doctrine of Snag v. Gee, (4 Coke, 16.) To accuse a man of murder, is not .actionable, if the man supposed to have been murdered is alive. Jf the charge is beyond controversy false, it is not actionable ; but if the alleged murdered man happen to be dead, or absent, so that he cannot be produced or found, then the charge is a .slander, and actionable ; because then the accused may be prosecuted for the murder — placing out of the question every .injury to character, and sustaining the action alone on the ground of a liability to a criminal proceeding. In Smith v. Williams, (Carth. Rep. 247,) the slanderous words were: ■“He confessed that he was the man who robbed the Hockley butcher.” The counsel moved in arrest of judgment, that it ■ did not appear that there was any Hockley butcher, and cited Snag v. Gee, that action does not lie for these words : ■“ Thou hast killed or murdered A. B.,” without averment that be is dead. But Holt, Chief Justice, scouted at this, and directed judgment, exclaiming, “the fault is the greater, and it is a double crime.” (See Eckhart v. Wilson, 10 Serg. & Rawle, 50.) In Rivers v. Lite, upon error from the Common Pleas, it was held actionable to say of the plaintiff, “ You did shut up my sister and murder her, and I will prove it,” notwithstanding a long string of old cases were cited to the contrary, and the judgment was affirmed.

Now I will notice why I rejected the colloquium, or inducement in this action. These words being actionable in themselves, did not need a colloquium. Rone was necessary, and the charge being made without the defendant using the reference to the particular matter before the grand jury himself, the slanderous words stand alone, not interwoven with the prosecution against the negro before the grand jury. All that is said, then, about the pendency of this matter about the negro, may be rejected as surplusage. In the language of Chief Justice Gibson : “Words which impute a crime are actionable, not more because they expose the party charged to the danger of being convicted, than of being prosecuted, which, even to the innocent, is a grievance; and in every instance, where the meaning of what would otherwise have been an unambiguous accusation, has been controlled by circumstances which showed it to be groundless, and thus rendered it harmless ; the controlling circumstances were so mingled with the accusation by the accuser himself, as to make the poison carry its antidote along with it. The decisions by which the doctrine of repugnancy was formerly carried to an extravagant length, have ceased to be precedents, and the rule now seems to be that, if the charge be not palpably unfounded on the face of it, the risk of a prosecution which it induces shall be compensated in damages. But it has been said that, whatever may be the right of action in the abstract, yet it appears by the plaintiff’s own showing in the pleadings, that the oath to which the publication had reference, was not the subject of perjury. Were it, indeed, laid that the defendant himself had so described it in the offensive publication, tbe plaintiff would have shown himself to be without a cause of action. He has, however, set out the publication exactly as it was made, having stated as matter of inducement, the nature of the affidavit to which it relates; but this matter of inducement may be struck out of the declaration, without prejudice to the cause of action, which is fully stated without it.” (Deford v. Miller, 3 Penrose & Watts’ Penn. Rep. 103.) Applying the principle of this case, and I fully concur in its correctness, and all that part of the plaintiff’s petition which is laid as inducement to the speaking of the slanderous words may be stricken out without prejudice to the petition. Upon the case, then, when we compare it with the authorities and the general principles governing such actions, we are satisfied that, to charge a person with “ swearing to a lie before the grand jury,” is actionable in itself, and needs no colloquium or inducement. Striking out, therefore, the inducement here, there is a plain charge against the plaintiff, actionable in itself, for which he has a right to ask for damages. The demurrer, therefore, ought to have been overruled. The judgment below is reversed, and the cause remanded;

Judge Scott concurring.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    The State, Appellant, vs. Baker, Respondent.
    1. Upon a motion to quash an indictment returned into court endorsed “a true hill,” members of the grand jury cannot, under our statute, be permitted to testify how they or their fellow-members did or did not vote, for the purpose of showing that twelve did not concur in finding the indictment; nor would they, it seems, be permitted to state the fact that twelve did not concur.

      Appeal from St. Clair Circuit Court.

    The case is fully stated in the opinion of Judge Ryland.
    Gardenhire, (attorney general,) for the State.
    The action of the court below was in direct violation of the statute, which expressly provides that no member of a grand jury shall be obliged or allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them. It is in vain to say, as was said in Low’s case, (4 Greenl. 440,) that the fact whether twelve or more concurred in the bill is not a secret. IE one or more grand jurors can be called to contradict the certificate of the foreman, the policy of the statute is gone. How can they be contradicted if they swear falsely, without giving the names of the members who voted for or against the bill? Shall one member of a grand jury swear that twelve did not concur, and turn a prisoner loose, without further question ? The law as plainly requires twelve jurors to convict, as to find an indictment. If the certificate of the foreman of the grand jury can be impeached by the oaths of his fellows, why may not the final verdict be impeached in the same way ? There is a much better reason for it. The indictment is preliminary, the verdict is final. Yet it is well settled that traverse jurors cannot impeach their verdict. (1 Mass. 543. 4 Mass. 399. 4 Johns. 487.)

      F. P. Wright and W. H. Oiler, for respondent.
    Under the constitution, defendant could not be convicted of the offence charged, otherwise than by indictment, which is an accusation presented on oath by a grand jury, twelve at least concurring. (2 Hale’s P. C. 161. 2 N. C. 188. 2 Black. Rep. 718. 3 Bacon’s Ab. Indictment. State Cons. art. 13, §8, 14. R. C. 1845, p. 866, §19. 2 Gallison, 366.) The law says that no citizen can be deprived of life, unless by a concurrence of twenty-four of his peers ; but if he is deprived of the means of asserting this boasted right, it is a mere mockery. The law excludes all persons from the grand jury room, except the grand jurors themselves, when they vote upon a bill, and consequently they alone can be witnesses.
    The fact whether twelve or more concurred is not a secret. It is a result always made public by the endorsement “ a true bill” or “not a true bill” upon the indictment. The grand jurors in this case do not declare how any member voted. They barely state that they did not vote or concur. ' (Low’s case, 4 Greenleaf’s Rep. 440. 9 Mass. 107.)
    The endorsement “a true bill” upon an indictment only raises a presumption that twelve of the grand jurors concurred, but this presumption maybe rebutted by contrary proof. (1 Greenl. Ev. §252.)
   Ryland, Judge,

delivered the opinion of the court.

At the September term, eighteen hundred and fifty-two, of the Circuit Court for Hickory county, John Mullins and Andrew Baker were indicted for the murder of John P. Dorriss.

Mullins was not taken. Baker appeared to the indictment, and had the trial continued on his motion until the next term. At the next term, being March term, 1853, Baker applied for and obtained a change of venue — the court directing the case to be sent for trial to the St. Clair Circuit Court, in St. Clair.county. At the May term, 1853, of the St. Clair Circuit Court, the case was again continued on defendant’s motion, until the next term. At the October term, the case was continued on the motion of the circuit attorney.

At the May term, 1854, the parties appear, and the defendant filed the following motion : “ The said defendant, Andrew Baker, comes into court and alleges he ought not to be holden to answer to this indictment, because he says that the said indictment was not found by any twelve of the grand jury, but simply by a majority of the number who constituted the grand jury panel at the court at which said bill purports to be found, and he now moves the court for liberty to prove these facts by Jonas Brown, Samuel Weaver, Jesse Driskill, Hardy C. White, Oliver Poe, members of the grand jury, and who were grand jurors on the panel aforesaid, and their affidavits are here in court.” After the filing of this motion, the cause was continued. At the October term, 1854, of St. Clair Circuit Court, the parties again appear, and upon hearing the evidence on said motion to quash the indictment, which evidence will be noticed hereafter, the court sustained-the motion, and quashed the indictment, and dismissed the proceedings against Baker. The circuit attorney excepted to the various opinions and acts of the court in receiving the affidavits of the grand jurors, and in sustaining the motion to quash the indictment; filed his bill of exceptions, and brings the case here by appeal.

These affidavits are as follows : “ Jesse Driskill, sworn for defendant, says he was on a grand jury in Hickory county, when the matter against defendant was investigated ; was present when the vote was taken: witness said he did not vote at all.” Cross examined: “A vote was taken on the Baker case; I had a knowledge that a bill would be presented, and had been, as I supposed, by the foreman to the court, as I understood; I requested a count, and the reason was, I did not know that twelve had concurred in finding the bill; 1 had doubts that twelve had concurred ; I did not hear any count made ; if it was done publicly, I did not hear it; I think none was made ; I think Poe, and I think Hardy White, at the time, also made request for a count; the vote was taken by uplifting hands, or making a sign that the jury understood ; but one vote was taken, and those that did not vote had no chance to vote at all.” Re-examined : “Esquire Walker did the writing and Miles put the vote.”

Hardy C. White, sworn for defendant, says : “ I-was one of the grand jury when the Baker case was investigated in court; (it is admitted that White was on the grand jury ;) I was present when the vote was taken on the bill; I had my doubts whether twelve concurred in finding the bill; I did not vote ; there was a request to count the vote again; I can’t say whether it was Judge Brown or Judge Driskill who requested ;. if another vote was taken, I do not recollect it; there was a good deal of talk in the room ; there was a request to have another vote on it; do not recollect the day on which the vote was taken ; I think the vote was taken on the day it -was returned into court; Weaver had left before the vote was taken ; he was not there ; his family was sick, or some one dying.” Cross-examined: “ As well as I recollect, when the vote was taken, they arose to their feet, and sometimes by raising their hands ; I did-not count all that did or did not vote; the foreman generally counted; Esquire Walker that day was doing the writing ; I can’t say he counted or not in voting on bills, when twelve raised to their feet, for the bill; there was no further counting of those who did not rise.” Re-examined: “I know of no other juror having been summoned in the place of Weaver.”

Weaver’s deposition read : “ Was not present when the vote was taken on Baker’s bill of indictment;” the circuit attorney waived any objections to Weaver’s deposition being read.

Elgin Poe, sworn, says: “Was one of the grand jury; I did not vote on the bill of indictment; I claimed another count of the vote, and named it: the reason was, I did not think twelve concurred in finding it; I thought so from what I saw and heard; I know some did not vote; no second vote was taken ; I cannot say how the vote was taken ; whether by rising up, or lifting up their hands ; the vote on this bill was taken but once ; I saw some that did not vote.” Cross-examined : “I was busy looking at the law when the vote was taken ; I do not know how the vote was taken ; I do not recollect about that; it was one of these ways ; I do not recollect whether it was the day after or at the time the request was made to have another vote taken ; I think we adjourned immediately after the' vote was taken ; my memory is dim upon this subject; was present when tho bill was presented to the court; made no objection to the bill being handed to the court; I knew that it required twelve to concur to find the bill; I would have objected, if I had known I had the right to do it; I did not know-what my duty was in that case.” White recalled: “I knew it took twelve to find a bill and named it to Judge Johnson, who was then judge.” Cross-examined: “ This was before the bill was delivered into court and before the grand jury were discharged; I asked Judge Johnson whether it took twelve or not; he said it did; I did not count those who voted for or against the bill; I did not see all who did or did not vote; I tliougbt, from the talking in the jury room, that twelve did not concur; I did not know how to fix it; it was in the charge of the court that the circuit attorney was the legal adviser of the jury.”

James Brown, sworn, says : I was a member of the grand jury in Hickory; was present when the vote was taken on the Baker indictment; I do not know whether twelve concurred in the bill or not; it was done suddenly ; that is, so that any one could not count it; it was, all that were in favor of finding the bill to hold up their right hand ; the vote was taken by the foreman suddenly, so no one could count; I recollect it well; I requested, by the application of several others, to take another vote ; it was in a few minutes after the vote was taken; Mr. White first named it to me ; Driskill also wished it taken over again ; I did not vote on the bill; no second vote was taken on the bill; it was the first grand jury I was on; I did not think it was my duty to state it to the court; but since, 1 have thought it was.” Cross-examined: “Did not count those for or against' the bill; Walker was clerk; I did not vote for or against.”

William Walker, sworn, says : “ Was a member of the grand jury; a vote was taken on the bill against Baker ; I was clerk and pretty much as foreman ; Mr. Miles was a very old man ; I put the vote myself ; have a distinct recollection myself of it; I do not recollect whether by rising up, or raising up their right hands ; but, if they raised up their right hands, they were also on their feet; I counted twelve votes for it; it was very nigh evening ; I was glad to get through; we then adjourned ; it was the last thing we done that night; I believe twelve concurred in finding the bill ; the vote on the bill was the last thing done.” Cross-examined: “ They were not all on their feet; they stood on their feet when they voted, and whether they held up their hands at the same time or not, I cannot say; I knew they all did not vote; I think the greater part were sitting down when the vote was taken ; I counted just twelve ; those that I did not, sitting ; there was confusion when the vote was put; I knew two did not vote ; I know there were others, from the fact that I only counted twelve; the count I made twice; but it was done quick, and I made twelve ; we broke up after the vote in less than a minute ; I made a minute that a bill was found ; no person helped me to keep the minutes ; there was no confusion, because there was not another count; I heard no request for another count; there was a good deal of noise or talk, but I heard no request for a re-count.” Re-examined: “There was no attempt to reconsider afterwards.”

1. The main question for the consideration of this court is, the propriety of the decision of the Circuit Court, in permitting defendant to introduce the evidence of the grand jurors in support of his motion. We consider this act of the Circuit Court to be contrary to the law; and its judgment in sustaining the defendant’s motion is erroneous, and must be reversed. This whole question rests upon our statute law, and I will now proceed to notice its provisions. Not more than eighteen persons are to be summoned as grand jurors, and not less than fifteen sworn to compose the body. It is the duty of the circuit attorney, when required by the grand jury, to attend them for the purpose of examining witnesses in their presence, or giving them advice upon any legal matter. The circuit attorney is allowed, at all times, to appear before the grand jury for the purpose of giving information relative to any matter cognizable before them, and be permitted to interrogate witnesses before them, when he or the grand jury shall deem it necessary. “ But no such attorney or any other officer or person, except the grand jurors, shall be permitted to be present during the expression of their opinions, or the giving their votes on any matter before them.” (Practice and Proceedings in Criminal Cases, art. 3, sec. 7, p. 864, R. 0.1845. Secs. 15 and 16, (same article,) are as follows : “ See. 15. Members of the grand jury may be required by any court to testify, whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person, upon a complaint against such person for perjury, or updn his trial for such offence.” “ Sec. 16. No member of a grand jury shall be obliged or allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question.” “ Sec. 19. No indictment can be found without the concurrence of at least twelve grand jurors. When so found, and not otherwise, the foreman of the grand jury shall certify, under his hand, that such indictment is a true bill.”

Sec. 20 requires the foreman, when twelve grand jurors do not concur in finding the indictment, to certify, under his hand, that such indictment is not a true bill.

The 21st section declares that, “Indictments found and presentments made by a grand jury shall be presented by their foreman, in their presence, to the court, and shall be there filed, and remain as records of such court.”

One clause of the grand juror’s oath is as follows : “ The counsel of the state, your fellows and your own, you shall well and truly keep secret.” This part of the oath has no limitation as to time ; it is not to keep secret during the term the grand juror is acting as such, nor during the term of the court; but he is “ well and truly to keep secret.” The grand jtiror has an important trust to perform. He is required to make diligent inquiry into the various breaches of the laws of his -state, within his county, whose punishment is preceded by indictment. It is often a disagreeable duty ; often an irksome task ; yet, under his oath, he is bound to perform it. He is a member of a secret inquest, with ample power to ferret out offences : he is charged to assist in doing this. Now, in order to protect Mm, as well as to secure the punishment of the guilty, strict and rigid secrecy is required and enjoined upon the members of this inquest. The grand juror is expressly exempted from all obligation to testify in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to such question. Nay, the law did not stop at relieving such juror from this obligation, but it expressly prohibits the juror from declaring what opinions were expressed, or how he or any other juror voted on any question before that body. No member of a grand jury shall be obliged or allowed to testify or declare,” &c. (Sec. 16, of the act above cited.) In this case, the counsel for the prisoner contends, that the grand jurors do not testify how they voted on this case, when before them ; they only testify that they “ did not vote at all.” This is just as much prohibited as their voting is from being told; for, by allowing each one to say “ I did” or did not vote,” the prisoner will easily find out those who voted for the bill and those who did not vote for it. He can put his finger on the grand juror who had firmness to vote on his case, and to vote to find the bill of indictment a true bill; and thus such grand juror is exposed to any and all secret machinations and injuries that the malice of the prisoner or his friends may inflict on the property or person of such grand juror. This is what the law will not allow. Again, permit this conduct or this course of acting before the grand jury to be the subject of proof on a motion to quash the indictment in the Circuit Court, and a corrupt grand juror may withhold his vote on purpose, in order to be used afterwards as a witness. Permit such a course of proceeding as this case presents to us, and the grand jury, instead of being a great preservative power of the peace and well-being and morals of society, will become at once a source of strife, bickering, heart burning and bloodshed among us. Such cannot for a moment be tolerated. Again, permit this course to be allowed, and every inducement for a guilty man and his friends to tamper with the grand juror, is, at once, presented. These grand jurors should have met the reprimand of the court, for their willingness to declare how they voted, or that they did not vote at all, instead of being permitted to file their affidavits. Such a course is not again to be permitted. By our law, when the grand jurors, by their foreman, in presence of the body, return an indictment into court as a true bill, it then becomes a part of the records of the court, and it should not be subjected to the attacks of parol proof by the members of the very body who, in presence of their foreman, stood by in silence and saw him present it to the court. Incalculable mischief must result to the public at large from such a course of proceeding. The counsel for the prisoner in this case rely upon the case of the Supreme Court of Maine, reported in 4 Greenl. Rep. 439 — Low’s case. “ Grand jurors may be examined as witnesses in court, to the question whether twelve of the panel actually concurred or not in the finding of a bill of indictment, under art. 1, sec. 7, of the constitution of Maine.” This case also shows that, if an indictment is found without the concurrence of twelve of the grand jury, this may be shown to the court by motion in writing, in the nature of a plea in abatement, made at the time when the defendant is arraigned.” This is the head note of Low’s case. I know not whether there be any such prohibitory statute against grand jurors testifying in Maine as we have here. This ease may be under some peculiar manner or mode in Maine, under their constitution; yet the judges appear to rely very much on a remark of Judge Sewell, of Massachusetts, in the Commonwealth v. Smith, reported in 9 Mass. Rep, 107. Judge Sewell says: “Indictments not found by twelve good and lawful men at least are void and erroneous at common law; and the circumstance that it was found by twelve men, is stated in the caption of every indictment, according to the English forms and practice. But this formality has not been preserved with us, and the omission is not to be objected to indictments found according to our practice, viz : “ The jurors for the commonwealth upon their oath present,” &c. An irregularity in this respect, if it should happen, might become a subject of inquiry upon a suggestion to the court; for, under their superintendence, the grand jury is constituted and must be understood to have the legal number of qualified men.” The last remark of Judge Sewell is much relied on by the Maine court in their opinions. But at what time is this suggestion to be made ? When the grand jury is still under the superintendence of the court, or at what time ? Can a different court make the inquiry, as was done in this case now before us ? Judge Sewell continues thus : This being the construction to be given to the record, after an indictment has been received and filed by the court, no averment to the contrary can.be permitted as a formal plea. Objections to the personal qualifications of the jurors or the legality of the returns, are to be made before the indictment is found, and may be received from any person who is under a presentment for any crime whatsoever, or from any person present, who may make the suggestion as amicus curix.”

Our law expressly makes all such indictments as are returned into court by the foreman, in the presence of the grand jury, and endorsed by him as “ a true bill,” and filed by the court, records of the court, and records cannot be averred against. No matter how much I am disposed to respect the learning and practical sound sense of the Maine court, I can never consent to do away with our statutory requisitions, because that court decided a similar case otherwise than I am warranted in doing.

The doctrine now laid down by this court cannot produce harm ; for an innocent person will not be hurt by refusing to go behind the indictment and see how it was found, for he can always vindicate himself in a trial upon the merits.' This doctrine, too, violates no law, by rendering that public which the law deposits in the breast of a grand juror as áfi inviolable secret. Our law declares that no exception to a juror, on account of his citizenship, non-residence, state or age, or other legal disability, shall be allowed after the jury are sworn. This extends to criminal as well as civil cases.

The novelty of this proceeding is also against it. For nearly thirty-four years’ practice at the bar and on the bench, in this state, I have never seen a similar proceeding. This is .the age of progress, however; but let us not overturn the old land marks, unless we see plainly and beyond all doubt that no harm can arise to the community, and much good may. It is a general principle that no juror, grand or petit, can be heard in proof of bis own misconduct, or that of his fellows. (See Dana v. Tucker, 4 Johns. Rep. 488.) In this case, the Supreme Court of New York stated “ that the better opinion is, and such is the rule ob this court, that affidavits of jurors are not to be received to impeach a verdict, but they may be admitted in exculpation of the jurors and in support of their verdict.” (2 Tenn. 281. 4 Mass. 399.) The defendant’s counsel also referred to Hawkins’ Pleas of the Crown, (2 vol. p. 307.) Hawkins says : “ If it appear by the caption of an indictment, or otherwise, that it was found by less than twelve grand jurors, the proceedings upon it will be erroneous.” Now, the English practice was, to insert the names of the grand jurors in the caption of the indictment; if that did not have the requisite number, it was quashed. But Hawkins does not say anything about proving by the oaths of the grand jury that a less number than twelve concurred in finding the bill of indictment. The court, in Low’s case, also referred to this passage in Hawkins. I find Hawkins, to support his text, refers to Clyncard’s case, (Croke Eliza. 654.) “ Upon examining this case, I find that the indictment appeared to have been found upon the oath of A. B. C. D., and of other lawful men of the county aforesaid, and it did not appear to be upon the oath of twelve lawful men,” &c.

Here the caption contained the defect. But this authority does not have the least bearing on the question in this case. Hawkin’s words, “ or otherwise,” and the mere expression of a supposition that “ it might become a subject of inquiry upon a suggestion to the court,” by Judge Sewall, have become the foundation for the opinions in Low’s case, under the constitution of Maine, and are now urged here to induce this court to overturn our plain and positive statutory regulations.

There is error in .the Circuit Court in'permitting the affidavits of the grand jurors, in this case, to be taken and read on the defendant’s motion to quash. The judgment below is reversed, and this case is remanded for further proceedings ;

Judge Scott concurring.


author: Rxlaud, Judge,

text:
    Stone et al., Appellants, vs. Corbett, Respondent.
    X. Where a cause appealed from a justice of the ppaee is tried in the circuit court upon an agreed statement of facts, the supreme court will reverse unless the facts support the judgment, although no instructions are asked.
    2. The failure of the assignee of a note not negotiable under the statute to bring suit against the maker to the first term of the court, or first law day of the justice having jurisdiction, without excuse, discharges the assignor.
    3. The statutory action by the assignee of a note against the assignor, upon failure to obtain payment from the maker, is not, it seems, to be regarded as an action upon the note for the purpose of giving jurisdiction to a justice, when the amount sought to he recovered' exceeds his jurisdiction in other actions of assumpsit.
    4. Consent of the parties cannot confer jurisdiction.

      •Appeal from Jacleson Circuit Court.

    The facts appear in the opinion of the court.

      J. B. Hovey, for appellant.
    1. The note, at the time it became due, was within a justice’s jurisdiction, and the plaintiffs were bound to sue at the first law day after the note became due. (8 Mo. Rep. 202, 451. 10 Mo. Rep. 553.) 2. The facts were agreed upon and in such a case no instructions are necessary. The judgment of the court is the declaration of law upon the special facts or verdict.

      J. W. Reid, for respondent.
    1. When the note was assigned to Corbett, it was for an amount exclusively within the jurisdiction of the Circuit Court. The mutual obligations of the assignee and assignor arose at the date of the assignment, and could not he altered or modified by any subsequent act of the assignee, unless it was prejudicial to the assignor. The act of accepting a part payment in boots and shoes, and thus bringing the note within a justice’s jurisdiction, was not prejudicial to the assignor but for his benefit; and the assignee "was only bound to sue at the earliest time at which he could have sued, if he had accepted nothing in payment. 2. As this was an appeal from á justice, the court should have been asked to declare the law by way of instruction. (19 Mo. Rep. 118.)
   Rxlaud, Judge,

delivered tbe opinion of tbe court.

This was an action commenced originally before a justice of tbe peace, by tbe plaintiffs, Stone and others, against Corbett. Tbe suit was against Corbe.tt, as assignor of a note executed by John E. Wood to said Corbett, and wbicb Corbett bad assigned to tbe plaintiffs. Tbe amount due on tbe note was $138 50, exclusive of interest, tbe note being originally for $151, payable five months after date, and dated April 16th,. 1849; It was assigned to plaintiffs on tbe same day on wbicb it was executed. On 10th September, before tbe note was due, tbe plaintiffs received from Wood, tbe maker and payer, tbe sum of $12 50, in payment of so much of said note. This-payment was made in boots. On 13th December, 1849, the-plaintiffs commenced their suit against Wood before a justice of tbe peace, and prosecuted it until nulla bona was returned by tbe • constable. However, tbe facts appear upon an agreed statement-made by tbe parties in tbe Circuit Court, upon wbicb statement tbe court found tbe law for tbe plaintiffs, and judgment was-given for plaintiffs. This statement is as follows :

“Defendant assigned tbe note in question to plaintiffs, Aprib 16th, 1849. Tbe note was for $151, dated April 16th, 1849,, and due five month safter date, executed by JohnE. Wood. On, the 10th September, 1849, plaintiffs received of Wood,, in. boots, $12 50, in payment of so much of the note, and credited it thereon. On tbe 13th day of December, 1849, plaintiffs, commenced suit before a justice of tbe peace of Blue township,. and prosecuted suit against Wood to judgment. Execution, issued on tbe 31st day of December, 1849, and on tbe Isinddy of April, 1850, said execution was returned nulla bona. Execution came to tbe bands of tbe constable of Blue township, 21st January, 1850. It is further agreed that, up to tbe time-that plaintiffs commenced suit against Wood, said Wood bad property to tbe amount of $600, in boots, shoes and leather; that, before execution issued against Wood, and on.tbe-day of tbe - judgment against Wood, said Wood sold out;,to Cogswell an bad no property; that, at the time of the assignment, Corbett was about starting to Santa Fé, and did go, and did not return until after the note was due ; that two justice’s law days intervened between the time that the same note became due and the commencement of the suit against Wood, at either of which plaintiffs might have sued Wood on said note ; that the parties resided in Blue township, and the property of Wood was in said township up to the time it was sold to Cogswell; from the time said note came due to the time it was sued on, there was no Circuit Court held in Jackson county, and not until, March, 1850, to which suit could have been brought on said note.” The defendant moved for a new trial, which being overruled, he appeals to this court.

1. In a case like this, where the facts are agreed to and set -down in writing, there was no necessity to ask the court to declare ■the law upon the agreed facts ; that was the duty of the court, •without being asked, and having pronounced judgment upon the .agreed facts, if they will not warrant it, it must be reversed.

2. We have no hesitation in saying the facts will not support the judgment of the court below. There is not due diligence shown by the plaintiffs in prosecuting their suit on the note assigned to them. They suffered two justice’s law days to pass over without bringing their suit; this, too, after the note had been, by partial payment, brought within the jurisdiction of a justice of the peace, before it was due. There is no excuse for this delay ; for this negligence to sue; for this want of diligence. The plaintiffs rely upon the fact, that the note being, when assigned to them, for $151 — an amount over the justice’s jurisdiction — they, although having received part payment, thereby reducing it within the justice’s jurisdiction, were, nevertheless, authorized to wait and sue in the Circuit Court; and there being no term of the Circuit Court until March following the maturity of the note, they could not be charged with laches or want of diligence. There is nothing in this excuse, or rather in ’this view of the case; they themselves do not wait until the Circuit Court in March; but they sue in December previous, and sue, too, before a justice of the peace. The parties all live in the same township, yet two law days elapse in which suit might have been brought on.this note in that township, and no suit brought. Why this delay ? and why afterwards sue in the township in the justice’s courts? There is no diligence here, and the plaintiffs have lost their recourse against the assignor. In the case of O'Fallon, Ex'r of Delany, v. Kerr, (10 Mo. Rep. 553.) this court held that, to make the assignor liable, suit must be instituted at the first term after maturity, or there must be some excuse for not doing so. (See Collier v. Warburton & Riley, 3 Mo. Rep. 203.) Due diligence requires suit to be brought at the first court after maturity,- unless a reasonable cause for the failure to do so be shown. Here there is no cause. It is idle to say that, because the note, when-first assigned, was for $151, if it should have been reduced afterwards by payments below fifty dollars, the suit must still be commenced in the Circuit Court by the assignee, or that the assignee can have his choice, and let two justice’s courts pass by, if he afterwards sues in another justice’s court, before the next Circuit Court begins its term. Due diligence requires suit to be brought at the first court having jurisdiction over the subject matter. We do not think that it requires plaintiff to take extraordinary means to sue, such as by attachment; but he must sue in the ordinary course of legal proceedings at the first term; and if he fail to do so, he loses his recourse against the assignor. This statement of facts will not, therefore, warrant the judgment of the Circuit Court.

3. Another fatal objection is found in this record. Here, the assignees bring suit against the assignor for $138 50. This is not on a note, but is an action of assumpsit or on account. It is not on a direct promise to pay money, but is on an implied undertaking by the assignor to pay,, if the maker does not; provided due diligence be used by the assignees in coercing or trying to coerce payment from the maker. It is not ‘ ‘ an action on a bond or note for the payment of any sum of money exceeding fifty dollars, exclusive of interest, and not exceeding one hundred and fifty dollars.” It is one of those cases in which, if damages are sought over ninety dollars, the justices of the peace have no jurisdiction. If the amount in controversy exceed ninety dollars, in a case like this, the justice of the peace has no jurisdiction. The parties cannot confer jurisdiction by consent. The record shows that they waived the subject of jurisdiction. I mention this subject, to let parties see that they had better take pains and begin their suits in the proper courts. The first view of this subject, that is, the want of due diligence, is fatal to the plaintiffs’ action on the merits. I mention the last, that hereafter such cases may be brought in the proper courts. The judgment below is reversed, and the suit dismissed ;

Judge Scott concurring.


author: Leonard, Judge,

text:
    Smith, Plaintiff in Error, vs. Ashby, Defendant in Error.
    1. A note not negotiable under the statute, but expressed to be “payable without defalcation or discount,” is still exempt from any set-off accruing against the assignor after assignment and before notice of it The third section of the third article of the new practice act does not repeal the third section of the act concerning “bonds and notes,” (R. C. 1845.)

      Error to Jackson Circuit Court.
    This was a suit by Smith, the assignee for value, against Ashby, the maker, upon the following note :
    “ Twelve months after date, I promise to pay John W. Moodie, or order, one hundred and seventy-one dollars and •fifty cents, for value received, without defalcation or discount.
    “Thos. T. Ashby.
    “November 15, 1849.”
    This note was by Moodie assigned to plaintiff in July, 1850. The defendant set up, as an off-set, a note for one hundred and eighty dollars, executed by Moodie to him on the 7th of August, 1850, before he had notice of the assignment. The offset was allowed by the Circuit Court, and the plaintiff sued out this writ of error.

      James K. Sheley, for plaintiff in error.
    1. The note upon which this suit was founded being payable “ without defalcation or discount,” the off-set could not be allowed. (R. C. 1845, p. 190, §3. Collins v. Waddle, 4 Mo. Rep. 450.) 2 The third section of article three of the new code does not repeal the law as- it stands in the revised code, unless it be by implication, and the law does not favor such repeals. (24 Pick. 296. 5 Hill, 221. 6 Porter, 219.) 8. The third section was only intended to apply to ordinary notes, and not to notes payable “ without defalcation or discount.”

      J. W. Morrow, for defendant in error.
    The third section of the third article of the code of 1849 gives Ashby the right to set- off his note against Moodie in this suit, because he had no notice of the assignment of vthe note by Moodie to Smith. That section was designed to change the third section of the act concerning “bonds and notes,” (R. C. 1845,) and to allow an off-set, which accrued against the assignor before notice to the maker of the assignment, to all notes except such as are expressed to be “ for value received, negotiable and payable without defalcation.”
   Leonard, Judge,

delivered the opinion of the court.

The question in this case is, whether the third section of the third article of the code of procedure repeals so much of the third section of the statute concerning bonds and notes, as provides that the assignment of a note, expressed “ to be paid without defalcation or discount,” passes the instrument to the assignee, exempted from that defence.

There is no express repeal, and if repealed at all, it is because the provision of the code is inconsistent with the provision of the old law concerning bonds and notes. In order to come to a correct conclusion upon .this subject, it will be proper to refer to what our law was in reference to these matters, when the new code was adopted.

Debts, being mere choses in action, were not assignable at law ; but a different rule prevailed in equity, where assignments for value were always valid. Debts, however, being incapable of delivery, like a movable chattel, notice to the debtor was held essential in equity to complete the title, except as against the assignor. By our statute law, however, all bonds and notes were made assignable, and the assignee acquired, without notice to the debtor, a legal title to the debt — the “jus in re.” This title, however, was subject to various defences, according to the particular character of the instrument. If it were & note containing the words, "for value received, negotiable and payable without defalcation,” it passed to the assignee according to the law merchant, discharged of every defence existing against it in the hands of the payee. IE it contained the words found in the present instrument, “ to be paid without defalcation or discount,” it passed discharged only from that particular defence, and subject to every other exception that could be °alleged against it. (Collins v. Waddell, 4 Mo. Rep. 450.) If it contained neither set of words, the assignee took it subject to every exception existing against it at the time his title accrued. When the legal title passed, the suit was in the name of the assignee and at law; but if it were only an equitable title, the suit was necessarily in equity, and in the name of the equitable owner. Courts of law, however, were beginning to give effect to these equitable assignments, by allowing the assignee to sue to his own use in the assignor’s name, and then treating the • beneficiary of the suit as the owner of the debt and as the real plaintiff upon the record. Such being our law, the code is introduced, which provides, in the first section of the third article, that “ suits must be prosecuted in the name of the real party in interest;” and then, in the third section of the same article, declares that, “ in case of an assignment of a thing in action, the action by the assignee shall be without prejudice to an off-set or other defence existing at the time of or before notice of the assignment; but this section shall not apply to bills of exchange, nor to promissory notes for the payment of money, expressed on the face thereof to be for value received, negotiable and payable without defalcation.” The argument for the repeal is, that, providing that the bringing of the suit in the name of the assignee should not deprive the defendant of any set-off or defence existing at the time of or before notice of the assignment, and that this provision should be inapplicable to negotiable paper, was impliedly introducing a new rule of property in every case of an assignment of a thing in action other than of negotiable paper, and is, in effect, an implied provision that every assignee, except of negotiable paper, shall take subject to every set-off and other defence existing at the time of or before notice of the assignment ; and so, under our laws, embraces bonds and notes payable without defalcation or discountwhich, being inconsistent with the old law exempting such paper, when assigned, from set-off, necessarily repeals so much of it.

We may remark that this new system of procedure did not originate here, but in New York ; and it is believed that there, all debts, other than negotiable paper debts, were only assignable in equity; and therefore, this provision of the code produced no change there in the rules of property, and was probably made, out of the abundance of caution, lest the change in relation to the bringing the- suit in the name of the assignee should be construed to have the effect of annulling these equitable defences of the debtor ; and this is the more probable, as in New York this was the only practical effect of the provision.

Here, however, the proposed construction of the provision changes a rule of property. An assignment that, under the old law, passed a debt exempted from set-offs accruing after the assignment and before notice, is, by the proposed construction, to pass it subject to such set-offs. It is a wise rule, in the construction of statutes, not to favor a repeal of the old law by implication, and if both acts can be so construed as to stand together, it is the duty of the courts to adopt such construction. If it were the intention of the legislature to effect this change in an old rule of property, no reason is seen why, instead of using direct and unmistakable language for that purpose, they used the negative expressions adopted in New York, most probably out of the abundance of caution, to prevent any change in the rules of property by the introduction of this new system of remedies. We may remark, in this connection, that the purpose of the legislature, in adopting this code, was not to lay down new rules of property, but to provide a better system of remedies for the protection and enforcement of rights, as they stood under the existing laws ; and this fact ought to be kept in view in construing its provisions, and must influence the judgment of the court, when an effort is made to extract from ambiguous expressions in it a meaning which is to effect a repeal of an existing rule of property, and substitute a different rule in its place. The question is certainly not free from doubt, but the best judgment we can come to is, that no such change was within the contemplation of the legislature; and as it is the part of wisdom to abide by the old law, in cases of doubt, we shall allow it to stand untouched by the provision in the code to which reference has been made.

The effect of the opinion is, that the judgment must be reversed,-and the other judges concurring* it is reversed accordingly, and the cause remanded, to be re-tried in conformity to what is here declared to be the law of the case.


author: Scott, Judge.

text:
    Brill, Respondent, vs. Meek, Appellant.
    X. After an appeal has once been granted, the power of the inferior court over the subject is exhausted. If the appeal is dismissed, or if from any cause the party loses the benefit of it, he cannot take another appeal, but must resort to his writ of error.

      Appeal from Weston Court of Common Pleas.
    A judgment was rendered for Brill below, in November, 185B, and Meek took an appeal to the Supreme Court, where it was dismissed because not prosecuted. In February, 1854, Meek again appeared before the court below, and filed a new bond and prayed another appeal, which was granted.

      Hall and Tories, for defendant,
    now moved to dismiss the second appeal, on the ground that only one appeal could be allowed, even within the year; as otherwise the respondent might be harassed by successive appeals, and subjected to great trouble and expense.

      Gardenhire, for appellant.
    If an appeal is dismissed, the penalty is the payment of costs. This is sufficient to protect the respondent from oppression. This court must be open to the appellant “ one year,” and a certain remedy afforded for the injury of which he complains. A dismissed appeal is like a judgment of nonsuit.
   Scott, Judge.

When an appeal has once been granted, the power over the subject is functus officio and cannot be exercised a second time. This has been the uniform practice. After a party, from any cause, has lost the benefit of his appeal, he is driven to his writ of error. The appeal is dismissed,

Judge Ryland concurring; Judge Leonard not upon the bench.


text:
    Hull, Plaintiff in Error, vs. Dowdall, Defendant in Error.
    1. The provision in the new practice, authorizing clerks to enter judgments on the confession of the party, is constitutional.
    2. The supreme court will not reverse a judgment overruling a motion to quash an execution upon a judgment by confession, because of an omission by the clerk to endorse the judgment upon the written statement of the defendant; especially, when the endorsement was made mine pro tme before the motion was overruled.

      Error to Buchanan Court of Common Pleas.

    This was a motion filed by Hull to quash an execution upon a judgment entered by the clerk in vacation in favor of Dow-dall against Parker upon confession, and for an order upon the sheriff to apply the money made under the execution, upon a subsequent attachment issued by Hull against Parker.

      It appeared that Parker filed a written statement in the clerk’s office in vacation and authorized judgment to be entered in favor of Dowdall, on the 22dof April, 1854. On the same day, the clerk entered the judgment upon the record, but did not endorse it upon the statement filed. On the 25th of April, an execution was issued upon the judgment, returnable on the 12th of June, which the sheriff levied upon a slave of Parker on the 28th of April. On the 29th of April, an attachment issued against Parker at the suit of Hull, which was also levied upon the slave. The sheriff' sold the slave under the execution on the 13th of May, and paid over the amount of the execution to Dowdall on the 16th of May. On the 12th of June, the return day of the execution and attachment, the present motion was filed. On the same day, the clerk, by leave of court, endorsed the judgment confessed by Parker upon the statement filed by him, nunc pro tunc. The motion of Hull was then overruled, and he sued out this writ of error.
    Loan, for plaintiff in error.

      Vories, for defendant in error.
   Leonard, Judge,

delivered the opinion of the court.

The validity of the judgment is contested on two grounds. 1. The unconstitutionality of the provision'in the new code of practice, authorizing the clerks of the circuit courts to enter judgments on the confession of a party.

This question was settled thirty years ago, in Finley & Bryson v. Caldwell, (1 Mo. Rep. 513,) where it was expressly decided that a similar provision in the court act of 1820, (2 Edward’s Dig. 686,) was constitutional. This decision has been acted upon ever since, (Phelps v. Hawkins, 6 Mo. Rep. 198,) and we would not feel at liberty to disturb it, even if we questioned the propriety of the original determination. No such doubt, however, is entertained; but it is enough that it is the doctrine of the court, acquiesced in until it has become a rule of property.

2. The omission of the clerk to endorse the judgment on the written statement of the defendant, pursuant to the third section of the twenty-second article of the code.

We do not see any reason in our practice for requiring the clerk to enter the judgment “ on the records of the court,” and also to endorse it on the “ statement of the defendant.” The legislature, however, have required both, and the direction ought to be observed by the officers for whose government it was made. We, however, cannot reverse a judgment for the want of a formality, the omission of which prejudiced no one, and which was supplied by making the required endorsement before the judgment now complained of was given.

The other judges concurring, the judgment is affirmed.


text:
    Dowd, Appellant, vs. Winters et al., Respondents.
    1. An allegation in a petition for slander that the defendant charged the plaintiff with swearing falsely in a judicial proceeding between A., plaintiff, and B., defendant, is sustained by proof of such a proceeding between A., plaintiff, and B. and C., defendants. (Hi&Zer v. Servoss^fi Mo. Rep. 24, affirmed.)
    2. The supreme court will not refuse to set aside a nonsuit taken upon the rejection of material evidence necessary to the plaintiff’s recovery, because the record does not show that the plaintiff was prepared with proof upon the other material facts of the case, or because the evidence may possibly have been rejected for the reason that it was offered cjut of the order of time prescribed by the court trying the cause.

      Appeal from Weston Court of Common Pleas.

    This was an action of slander against Jacob Winters and Elizabeth, his wife. The petition states that Mrs. Winters had charged the plaintiff with false swearing, and that this charge was made in reference to material testimony given by the plaintiff upon the trial of a certain cause between the city of Weston, plaintiff, and Elizabeth Winters, defendant, lately had before Thompson Ward, mayor of the city of Weston, who had jurisdiction of the cause and was authorized to administer oaths. The answer put in issue the jurisdiction of the mayor and the materiality of the testimony given by plaintiff. At the trial, the plaintiff offered in evidence the record of a proceeding of the city of Weston against Jacob Winters and Elizabeth Winters. The court excluded this record, whereupon the plaintiff took a nonsuit.

      Hall, for appellant,
    cited Hiller v. Servoss, (6 Mo. Rep. 24,) upon the point that there was no variance.

      Gardenhire, for respondent,
    insisted that the nonsuit ought not to be set aside, because the record contained no evidence whatever in relation to the jurisdiction of the court and the materiality of the testimony, both of which were necessary to a recovery. The plaintiff ought to have offered enough evidence to induce a reasonable belief that he could recover if put back in court again. At least, he should have offered the evidence necessary to show that the rejected evidence was competent.
   Leonard, Judge,

delivered the opinion of the court.

The facts put in issue by the pleadings are the jurisdiction of the mayor’s court, and the materiality of the testimony given upon the trial there.

In the briefs submitted to us, it has been insisted, on the part of the appellant, that there is no variance between the allegation and the judicial proceeding offered,in evidence, and therefore, the nonsuit ought to be set aside; and on the part of the. respondents, that the plaintiff gave no evidence of the jurisdiction of the mayor’s court, (the act conferring jurisdiction upon him not having been put in evidence,) without which the plaintiff could not have recovered ; and that, for that reason, the nonsuit ought to stand.

1. The allegation is of a judicial proceeding between the city of Weston and Elizabeth Winters, and the proof offered of a judicial proceeding between the city of Weston and Elizabeth Winters and her husband, Jacob Winters; and that this is no variance, is settled in Hibler v. Servoss, (6 Mo. Rep. 24,) which must control this point.

2. In order to make out the jurisdiction of the mayor’s court, and the materiality of the plaintiff’s evidence before bim, it was necessary to show in evidence the alleged judicial proceeding. The law has not prescribed the .order in which parties shall introduce their evidence upon a trial, but has left the matter to the discretion of the tribunals in which the trials occur; and the courts, in practice, generally leave it to the parties themselves, to take their own order, in the introduction of their testimony. According to the course of business, the rejection of any material evidence^ offered by the plaintiff and necessary to bis recovery, puts a stop to the trial at the point where it occurs, the party taking a non-suit and bringing bis case here, if dissatisfied with the opinion ; and this ccrart, construing the record with reference to the practice, has never, we believe, refused to set aside a nonsuit, where the evidence was improperly rejected, either on the ground that it did not appear on the record that the plaintiff was prepared with proof on the other material facts of bis case, (Hart v. Rector, 7 Mo. Rep. 532,) or because the evidence may have been rejected on account of its being introduced out of the order of time prescribed by the court.

We think, then, there being no variance in tbe point stated, and no other objection being suggested to us, that tbe proof was improperly rejected, and that tbe judgment must be reversed, and tbe cause remanded for a new trial; and tbe other judges concurring, it is so. ordered.