text:
    THE STATE v. FRANK HARRIS, Appellant.
    Division Two,
    December 4, 1906.
    1. TESTIMONY: Objection: No Ground. Objections without any reason assigned why testimony offered is incompetent, amount to no objection at all.
    2. -: -: After Answer. A party cannot sit by and allow a question to be answered, and if the answer does not suit then make an objection.
    3. FELONIOUS ASSAULT: Instruction for Common Assault. Upon the trial of a defendant charged with an assault with intent to kill, an instruction for common assault should not be given if there is no evidence on which to base it. The court is not justified in inviting the jury to convict the defendant of a minor offense of which there is no evidence in the case.
    4. -: -: No Request. Where no instruction for common assault, in the trial of a defendant charged with an assault with intent to kill, was asked by defendant and no exception was saved to the failure of the court to instruct on all the law applicable to the case, the defendant cannot complain that no instruction on common assault was asked, even though there may have been evidence authorizing it.
    Appeal from St. Francois Circuit Court. — Row. Bobt. A. Anthony, Judge.
    Aebtrmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State'.
    (1) Most o-f the evidence was admitted without any objections from defendant. In three instances defendant’s counsel objected, but assigned no reason therefor, which is not sufficient. State v. Young, 153 Mo. 449; State v. Westlake', 159 Mo. 679. While the State’s attorney was cross-examining the defendant, a question was asked and answered by the defendant without any objection being made. After it was answtered by defendant, defendant’s attorney made an objection; but did not even then assign his reasons therefor. It has often been decided that a party can not sit by and allow a question to be answered, and, if the answer does not suit him, then make an objection. State v. Rapp, 142 Mo. 449; State v. Marcks, 140' Mo. 656; State v. Sykes, 191 Mo. 79; Thompson on Trials, sees. 715-716. (2) Nearly all of defendant’s evidence was admitted by the trial court. But, in five instances, the State objected to certain questions asked by defendant, and the objections were sustained. It is impossible to see how such evidence was relevant, or what possible bearing it could have had on the merits of the case'. But even if it was material, defendant’s counsel failed to> state what he expected to prove by the witness ; hence, the point has not been properly saved for review. State v. Hodges, 144 Mo. 50; State v. Martin, 124 Mo. 514. Defendant’s counsel asked defendant to state to the jury whether or not he took that pistol there for the purpose of using it on the prosecuting witness. To this question defendant replied that he did not, and never thought of such a thing. Defendant’s counsel then asked the reason that he had for carrying that pistol; to which the State interposed an objection, and the objection was sustained. "Without stating what he expected to prove, defendant’s counsel saved his exceptions. It is insisted that the record in this respect contains no error for three reasons: First, because no formal offer of proof was made; second, because to allow defendant to prove _ his reasons therefor would have been foreign to this issue and would have raised one or more collateral issues in the case; and third, because said evidence was immaterial, and its exclusion could not have prejudiced defendant’s case. Defendant was allowed to prove that he did not carry said pistol for the purpose of using it on the prosecuting witness, and that he ‘ ‘ never thought of such a thing. ’ ’ To have allowed him to go further and prove who had threatened his life,, if any one, or that he was afraid of a dog’, or other vicious animal, or that he intended to' take the pistol to the repair shop, would have injected into the case matters that had no bearing on the issue. It should be remembered that the defendant was not charged with carrying a concealed weapon; but with an assault with intent to kill. If the defendant had shot the prosecuting witness, the crime charged would have been committed, even though the defendant had not carried the pistol in his pocket. Sec. 1863, R. S. 1899; 3 Rice on Evidence, sec. 41; Wharton’s Crim. Evid., sec. 24; Com. v. Chote, 105 Mass. 451. (3) No error was committed in failing to instruct on the subject of common assault; nor in failing to fully instruct on all of the law applicable to the case. But, even if the trial court did so err, defendant has waived the same by failing to ask for such an instruction, and by failing to object and save his exceptions at the time. State v. McGinnis, 158 Mo. 124; State v. Albright, 144 Mo. 638.
   GANTT, J.

This is a prosecution commenced by the filing of an information by the prosecuting attorney of St. Francois county, in the office of the clerk of the circuit court in vacation, on the 22nd day of September, 1903, wherein he charged the defendant with an assault upon one James Stout, with the intent him, the said Stout, on purpose and of his malice afore-' thought, feloniously to kill and murder. The information was duly verified, and the defendant was arrested and the cause continued until the second day of August, 1904, at which’ time the defendant was duly arraigned and entered his plea of not guilty, and he was put upon his trial and convicted and his punishment assessed at five years’ imprisonment in the penitentiary of this State.

After unsuccessful motions for a, new trial and in arrest of judgment, the defendant was sentenced in accordance with the verdict of the jury. From that verdict and judgment he appeals to this court. Time was granted the defendant within which to file his bill of exceptions, and in obedience to the leave granted, the defendant did on the 29th of December, 1904, file his bill of exceptions.

The evidence on the part of the State tends to prove that the defendant was a barber by occupation and lived in Ironton, and the prosecuting witness, James Stout, lived in Iron Mountain, St. Francois county. For some months prior to the difficulty the relations between the defendant and the prosecuting witness had been unfriendly. The prosecuting witness, it seems, thought that the defendant had been too intimate with the prosecuting witness’s wife. It seems that the defendant on one occasion brought Stout’s wife home in a buggy, and a considerable difficulty occurred between the defendant and Stout. Afterwards and on Sunday morning, September 20,, 1903, the defendant came to the home of Stout in Iron Mountain, in company with Andrew Langley and Fred Stout, a son of the prosecuting witness. These three brought a case of beer with them, and located themselves in Stout’s yard from about eleven o’clock in the forenoon until four or five in the afternoon. During this time they consumed most of the beer. Indeed, the evidence tends to1 show that they replenished the supply twice during the day. During their stay in the yard of the prosecuting witness, his wife went out on the porch and talked with defendant for a considerable time, took some of his bottles of beer and put them in a tub of ice water, and from time to' time she took the beer out to defendant and the others who were with him, and she also invited the defendant to come in and take dinner with them, but the defendant declined this invitation, saying he had money enough to buy his dinner. About noon the defendant sent off to a restaurant and bought some cheese and crackers, which he ate out in the yard. During the day defendant got a chair and a pair of scissors and trimmed the hair of Mr. Langley, his companion. During all this time, the prosecuting witness, Stout, remained in his house, and did not go out to see and did not speak to the defendant. Langley left, and one Frank Postelwaite came up and he was invited by the defendant to drink some of the beer, which he did. The evidence then tends to show that about 4:30 o ’clock • in the afternoon, Stout, the prosecuting witness, who whs still in the house, directed his son, Charley, to go out to the wood pile and bring in some stove wood. The boy replied he did not want to go, and there was no wood cut, thereupon Stout told him to cut some, and ran towards the boy, and on to the porch kicking his son as he jumped off of the porch. Defendant who was still in the yard, looked up, and Stout asked him what he had to say about it, to which defendant replied, “Who are you talking to?” To which Stout answered, “I am talking to you you, G-— d— you.” Defendant called to Stout not to get his gun, at the same time raising up out of his chair and drawing his revolver. Stout retreated into the house and shut the door behind him. Defendant opened the door and struck Stout on the head with something; he could not tell what it Was. Defendant then fired his pistol at Stout, the ball taking effect in the left shoulder three inches below the point of the shoulder and ranging upward. The weapon used by the defendant was a forty-four calibre Smith and Wesson pistol. After wounding Stout, the defendant walked out in the yard, and Stout got his gun and" fired twice at the defendant; the gun- was loaded with squirrel shot, and both loads took effect in the defendant. The defendant fell, but soon got up and returned to the room where Stout was, and snapped his pistol at Stout, but was prevented from firing by Postelwaite. Defendant was taken to a house near by, and later in the afternoon returned to his home in Ironton.

On the part of the defendant the evidence tended to prove that he had never been intimate with Mrs. Stout, although he had shown her some attention; that Stout and his wife had had several troubles -due to mistreatment by the husband, and which resulted in their being separated two or three times; that because of some kindness shown the wife by the defendant, Stout attempted to shoot the defendant, drawing his shot gun and using threatening language; that on the Sunday of the difficulty, the defendant went to Iron Mountain to collect some money from some one there, and also to try and sell barber supplies to another person; that on the road he fell in with Andrew Langley and Fred Stout, and went with them to the yard of Mr. Stout, the prosecuting witness, and remained there from eleven until four o’clock; that he got a chair and barbered a little that day, and drank considerable beer, all of the men on the place, including the prosecuting witness Stout, joining him in the drinking'; that just before the difficulty, defendant saw Stout come out on the porch holding Ms son Charley by the neck and kicked him off of the porch.

Defendant testified that Stont then looked towards him and Postelwaite, who were under a tree in the yard about fifteen feet away, and said: ‘ ‘ G-— d— you, what have you got to say about it, you Gr— d— son of a b — .” Defendant said fit Stout, he would not take that off of anybody, to which Stout replied, “You take that or take worse.” At the time of using this language, Stout was standing towards the door, and Postelwaite said, “He is going to get his gun.” Whereupon defendant got up out of his chair and says, “No he won’t; I will stop him. Jim, don’t get that gun you drew on me once. If you get it, you will have to use it. ’ ’ Stout was then hurrying towards the room where the gun was usually kept and said, ‘ ‘ I will use it this time.” Defendant followed Stout into- the room, grabbed hold of Mm by the, shoulder and struck him with his fist. When Stout got hold of his shot gun defendant fired his pistol and shot Stout in the shoulder. Defendant then turned and walked out into the yard, when Stout fired twice at him, both loads taking effect and knocking defendant to the ground. Defendant then got up and returned to the house, but did not snap his pistol nor try to- shoot any more. Postelwaite took hold of defendant and assisted' him over to a neighbor’s house. James Smith testified that he took defendant home in a wagon after the shooting and examined his pistol; that it was a forty-four calibre and had’ but one empty shell and nothing to indicate that it had been snapped or any other cartridge. Defendant also proved by William Spaugh that Stout went to Ironton a month before and exhibited a pistol and said he was looking for defendant. The defendant also introduced in evidence the record showing that the State’s witness, Frank Postelwaite, had been twice convicted of an assault with intent to rob. On one conviction he was sentenced to pay a fine; and by another to the pemtentiary.

The court then instructed the jury on felonious assault with malice aforethought, and defined the w'ords, ‘ ‘ On purpose, malice aforethought, ’ ’ as they have been defined in instructions approved by this court. It also instructed the jury on assault with intent to kill without malice aforethought, and gave the usual instructions as to the credibility of witnesses, presumption of innocence and reasonable doubt, and an instruction on the law of self-defense, and the consideration which they should give to the evidence of threats communicated or uncommunieated. As these instructions are not challenged in this court and as we have examined them and find that they are in all respects correct and fully cover all the points of law arising in the case, we deem it unnecessary to burden this opinion with their reproduction.

I. The information in the case is sufficient in form and substance1, and has received the expressed approval of this court in State v. Elvins, 101 Mo. 243.

Yery few objections were made by the defendant to the evidence introduced on the part of the State, and in these instances no reason was assigned why the testimony was incompetent. In a word, there was a simple objection without stating any grounds therefor, which we have often ruled is insufficient. [State v. Young, 153 Mo. l. c. 449; State v. Westlake, 159 Mo. l. c. 679.] In one other instance the question was asked and answered by by the defendant on his cross-examination, without any objection being made by his counsel; afterwards defendant’s attorney objected to it, but assigned no reason for his objection, and no motion was made to strike out the answer. It has often been ruled that a party cannot sit by and allow a question to be answered and if the answer does not suit him, then to make an objection. [State v. Marcks, 140 Mo. 656; State v. Rapp, 142 Mo. l. c. 449; State v. Sykes, 191 Mo. l. c. 79, 80.] The defendant’s evidence was practically all admitted, but in several instances counsel for the State objected to certain, questions asked by defendant and the objections were sustained. An examination of these questions in connection with the- testimony, demonstrates that the ruling of the court in each instance was so clearly right that it needs neither argument nor authority to sustain his action. Indeed, it may be said that the issue was so' simple that not only were very few exceptions taken on the subject of admission or exclusion of evidence, but those that were, were without substantial merit and such as in no event would justify the reversal of the judgment.

II. We have already said that the instructions given by the court were proper and such as have often been approved. But the point was made in the motion for new trial that the court erred in failing to- instruct on common assault. No such instruction was asked by the defendant and no exceptions taken to the failure of the court to instruct on all the law applicable to the case. But even if an instruction had been asked for common assault there was no evidence on which to base it and the court would not have been justified in inviting the jury to find the defendant guilty of a minor offense of which there was no- evidence in the case.

III. There was ample evidence to sustain'the verdict of the jury, and where this is the case, this court on appeal has no authority to and will not interfere with the verdict of the jury. Discovering no error in the record, the judgment of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

author: M’Girk, C. J.,

license: Public Domain

text:
    Ravenscroft v. Giboney.
    Parol evidence is admissible to prove the loss and the contents of exeentions, together with the return thereon, (Note a.)

    IN ERROR.
   M’Girk, C. J.,

delivered the opinion of the Court,

This was an action of debt brought by Ravenscroft against Giboney, before a Jus \ tice of the Peace, for certain moneys by him received to the use of Ravenscroft. The plaintiff had judgment, The cause was talcen to the Circuit Court, and by a bill of exceptions taken at the trial, the following facts appear: that Ravenscroft was a Constable, and as such Constable, executed certain process, and had thereon due to him, as Constable, divers sums of money as he alledged; that afterwards, Giboney became Constable, and that executions were issued on the judgments in the cases where Ravenscroft had fees due to him. The plaintiff, to prove his case, exhibited the docket of the Justice of the Peace, which had been deposited in the Clerk’s office, and then offered to prove, by the Justice and Clerk, that the executions were lost, and also the fact that the executions were returned satisfied, which evidence was refused by the Court, and the opinion of the Court excepted to, whereupon the defendant had judgment. The only question is, whether it is competent to supply a lost record in this way. In Peake’s Evidence, 29 and 30, we find the law to be, that in some cases where it has been clearly shown, that a record once existed which had been since destroyed, evidence of its contents has been admitted. Especially in cases where the record is only inducement to an action; but in such cases the most strong and satisfactory evidence is required; and that the collateral evidence must prove the same facts that the regular evidence would have done, if in existence. The same book goes on to say3 that this species of evidence is only applicable where very ancient records are lost j'for (2) if a rent roll be lost, and its contents can be ascertained, the Co.urt will permit a new one to be engrossed. This law we deem sufficient to authorize the party in this-case to prove the loss and the contents of the executions, together with the return thereon, though the record may not have been very ancientfor in this case, the Justice appears to have resigned, and puts his papers in the Clerk’s office, where, bylaw* they should be, in such a case; and now no new execution could be made out.

The judgment is reversed and sent back for a new trial.

(a.) See Graham v. O’Fallon, 3 Mo. R., p. 507.


author: ToMPKiNSj J.,

text:
    Bettis v. Logan.
    í. A copy oí a record made out by an officer entrusted with the keeping of the records, will be presumed to be correct. (Note a.)

    2. A transcript of the record of the Supreme Court, seat to the Circuit Court, containing an aceount of the proceedings of the Supreme Court, in a cause sent from such Circuit to the Supreme Court, is, when tiled in the Circuit Court, a record of that Court; and a transcript of such transcript, made out and certified by the Clerk, is evidence of the facts therein contained.
    3. Where the defendant withdrew Ms plea, &c., filed another plea to a new deelara- , tion which the plaintiff had leave to tile, issue joined and trial — held to’be an admission of jurisdiction in the Court where the proceedings were had.
    APPEAL from St. Francois Circuit Court.
   ToMPKiNSj J.,

delivered the opinion of the.ComL

This is an action on the case, brought by Logan against Bettis, for a malicious prosecution. It was commenced in the Circuit Court of Wayne county, thence the venue was changed to Cape Girardeau county, and from Cape Girardeau county to St. Francois county. In this last county, the declarationbeing found to be mutilated and defaced, the plaintiff had leave to file anbther declaration, and the defendant then withdrew his plea before that time filed, and pleaded again to the new declaration filed by the plaintiff. The parties then went to triala verdict was found for the-plaintiff, and judgment was rendered thereon. To reverse this judgment, the defendant prosecutes his appeal. It appears by the bill of exceptions, that on the trial of this cause, the defendant read in evidence a record from the Circuit Court of Wayne (3) county, from which record it appears that Logan, at the October term of the year-1824, was indicted for stealing a book of Bettis', that on motion of Logan, the indictment was quashed; that this judgment of the Circuit Court was reversed, and that Logan was prosecuted on the indictment and acquitted.

The first assignment of errors is general. Second. That the record from the Supreme Court is irrelevant to the issue between the parties. Third. The writing produced is not the best kind of evidence, but is a copy of a copy. Fourth. The declaration alledges that Logan was acquitted on trial, when by the record produced it appears that the indictment preferred by Bettis against Logan was quashed, which-does not support the declaration. The record of the indictment sent from Wayne-county contains so much of the record of this Court as relates to what was done here in relation to that indictment; and the declaration in this cause alledges that Logan was acquitted on a trial on said indictment. The second and fourth errors assigned seem to he but a repetition of the same thing. They will be first noticed. It is; contended by the appellant's counsel, that the record does not show that the indictment preferred by Bettis was disposed of; the indictment- being quashed in the Circuit Court of Wayne county, the cause was taken to- this Court, and here the judgment of the Circuit Court was reversed. The cause was- then remanded with the-decision and determination of this Court. The Circuit Court then proceeded to the-trial of Logan on the indictment, and he was acquitted. It was contended that Logan might have been tried and acquitted on another indictment, and not on that which was quashed in the Circuit Court. To this it may be answered, that the copy of the record is made out by an officer entrusted with the keeping of the records,, and to whom credit is given, and it is not to be presumed, that he would send here the record of two parts of two different indictments. The third- error assigned, is, that the writing produced is not the best kind of evidence, but is a copy of a copy. The transcript of the record of this Court, sent to the Circuit Court, containing an-account of the proceedings of this Court in a cause sent from such Circuit Court to this Court, is, when filed in the Circuit Court, a record of that Court, and a transcript of such transcript, if made out by tlie Clerk, and by him certified, is certainly entitled to as much credit as a transcript of the declarations and other pleadings filed in a cause. The objection, then, that so much of the record as is a copy of the record (4) of this Court, sent to the Circuit Court is hut a copy of a copy, is thought-to be unfounded. In an.additional brief, furnished the Court, it is also objected that there is nothing on, the record to show that the Circuit Court of Wayne county was legally divested of its jurisdiction, or that the Circuit Court of St. Francois county could legally entertain jurisdiction of this cause. Although this was not assigned for error yet it will he noticed. True it is, there is very little on the record to show how the cause found its way to the docket of St. Francois Circuit Court. The only entry is. this:

James Logan, plaintiff, v. Elijah Bettis, defendant, in case.

Change of venue from Wayne county to Cape Girardeau, and from Cape Girardeau to this county. But afterwards, the defendant withdraws his plea, and filed another plea to a new declaration which the plaintiff had leave to file. Issue was then joined, and the parties went to trial. Here is a sufficient admission of the j urisdiction of the Court; we must presume the cause was legally docketed in that Court;; if not, the defendant would have probably been ignorant of its being so docketed or if informed, he would then have objected to the jurisdiction, had he not intended to waive his objection. His appearance in that Court, and going to trial, is a waiver of any irregularity that may have occurred. The judgment of the Circuit Court is affirmed.

(a.) See Holliday v. Cooper, 3 Mo. R., p. 286.


author: Wash, J.,

text:
    Bullitt v. Overfield.
    Proof that a paper offered as evidence in a cause, is a true copy of the original admitted to be lost — held, to be sufficient to authorize its going to the jury.
    ON AN APPEAL from the Cape Girardeau Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action of detinue brought by Overfield against Bullit, for- a negro, woman slave and her child. The cause was submitted to the decision of the Court below without the intervention of a jury, when judgment was, given for Overfield. To reverse which Bullitt has appealed to this Court. On the trial of the cause in (5) the Circuit Court, “the plaintiff below offered in evidence a copy of a receipt which was said to be lost or mislaid. The counsel for the defendant agreed that the copy might be considered as the original and treated as such.” The paper offered was in the following words, viz: “Received of Thomas W. Graves and Samuel Ravenscroft, administrators of the estate of Levi Wolverton, deceased, a negro woman and boy child, named Willis, at thar apprased value, as part of my porion as a heir to said estate, which was appraised to seven hundred dollars, received by me, Mary Wolverton. Attest, Charles Seavers (dated) January 20th, 1820.”

It was then proved by Charles Seavers, the subscribing witness, that in June, 1822, “ he saw Mary Wolverton sign a receipt similar to the present one, (as he understood it to be, for he did not read it,) and he subscribed his name as a witness thereto, and that he did not recollect having ever witnessed in 1820, a receijrt like the one offered.” The plaintiff then proved by Thomas W. Graves, that the paper offered was a copy of the receipt witnessed by said Seavers in 1822. That in January, 1820, he, Graves, took a receipt from Mary Wolverton for the negro woman and her child, which was dated at the time when he delivered the negroes; that he did not like the receipt because it did not express that Mrs. Wolverton received said negroes as a part of her interest in said estate, and therefore destroyed it and took the one of which the paper offered was a copy, bearing the same date as the original one. Other testimony was given which has no bearing upon the question on which the Court decide this cause, and need not be noticed. The defendant below objected to the reading of the paper offered, on the ground that it was not proven to he a copy of the original receipt. Seavers proves that in 1822 he witnessed a paper of which he did not know the contents, &c. Graves proves that the paper offered is a copy of that very paper so witnessed hy Seavers in 1822, and explains why it hears a different date. The evidence, whether conclusive or not, was certainly sufficient to have permitted the paper to go to the jury, had one been sitting in the cause, or to the Judge sitting as a jury. No question is raised as to the legal effect of the instrument. In the judgment of the Circuit Court we see no error; it is therefore affirmed, with costs.


author: M’Ginic, C. J.,

text:
    Sweazy et al. v. Nettles.
    A variance between the writ and declaration, and the verdict and judgment, in the Christian name of the defendant, is fatal and avoids the judgment.
    ERROR from Cape Girardeau Circuit Court.
   M’Ginic, C. J.,

delivered the opinion of the Court.

This was an action of assault and battery against Sweazy, Ellis, Kirkland and David Sharp ; the plea, writ and declaration are against David Sharp, the verdict and judgment are against Daniel Sharp; this variance is assigned for error. The Court is clear that this variance is error as to Daniel Sharp, and avoids the whole judgment. The statute of amendments has been relied on to show that this Court ought to amend the judgment. The language of the statute is, that if any verdict shall be hereafter given by any Court or juiy for either party, judgment thereon shall not be stayed or reversed by reason of mistaking the Christian or sur-name of the plaintiff or defendant, by the Clerk in any declaration or pleading; if on the same record the right name is once truly alledged, whereunto the party might have demurred and shown the same for cause, (see the Revised Code, 129).

In this case the mistake is in the verdict and judgment when it was too late to demur. The case is not within the statute relied on, and the amendment cannot be allowed. The judgment of the Circuit Court is reversed with costs, and the cause is sent back to the Circuit Court of Cape Girardeau county for a new trial.


text:
    Butler, for the use of Houts, v. Johnson.
    A power oí attorney from A. to B., to sue for and recover a debt due to said A. from C., and when recovered, to receive and receipt for the said judgment; one half of which was to be to the proper use of the said attorney, the other half to the use and benefit of said A; B. was styled in the power of attorney “ the true and lawful attorney in fact, irrevocable of said A.” — held that B. cannot claim to have it paid over to him by the Sheriff collecting under execution.
    ON APPEAL from the Circuit Court of New Madrid county.
   Wash, J.,

delivered the opinion of the Court; .

This was a motion against the Sheriff,' to compel him to pay over money collected on execution, the Circuit Court, looking into the whole matter, ordered the Sheriff to pay over the money to the attorneys of the plaintiff subject to the further order of that Court; from which order the plaintiff appealed to this Court. The facts, as they are preserved by a bill of exceptions, are, that Butler gave Houts a power of attorney to sue for and recover a debt, due to said Butler, from one James Evans, and when recovered, io receive and receipt for the said judgment. One half of which was to be to the proper use of him said attorney, the other half for the use and benefit of said Butler; Houls was styled in the power of attorney the true and lawful attorney in fact, irrevocable of said Butler.” Suit was instituted in the name of said Butler, against said Evans, and shortly thereafter, a copy of the aforesaid power of attorney from Butler to Houts was placed in the hands of the Sheriff, in order to prevent him from paying over the money, when collected, to the plaintiff, Butler. Alter judgment was obtained, and soon after making a levy of the execution, said Evans showed to the Sheriff a release of said execution, and of the judgment on which it issued, from said Butler to said Evans 5 and an order in writing, that said Sheriff should return said execution satisfied; and said Butler went in person to said Sheriff, and told him he had given said release to said Evans, and directed him to restore to Evans the property he had levied on; and to return the execution satisfied, &c. The Sheriff doubting the authority of Butler to give the release and order aforesaid, retained the property he had levied on, and was afterwards ordered by Butler to sell the same, which was done accordingly. At the sale of the property (8) taken in execution, Butler purchased to the amount of $184 87 1-2, and gave the Sheriff a receipt on the execution for that sum. The balance of the judgment with the costs, was raised by the sale of other property to different persons ; the costs were paid over to those entitled to receive them, and the balance of the judgment of $119 43 was ordered by the Circuit Court to he paid over to the attorneys of the plaintiff, to he by them retained until the further order of the Court. The Sheriff appealed from this order, and assigns for error, among other things, that the Circuit Court erred in ordering said Sheriff to pay over the money to the attorneys of the plaintiff.

On this point the law is with the appellant, and the judgment or order of the Circuit Court must he reversed and the cause remanded. The proper disposition of the money is a matter of more difficulty. Erom the whole record, we think that Houts cannot claim to have it paid over to him. His authority under the power of attorney, was to sue for and collect. He had no such title or interest as made it the Sheriff’s duty to pay over the money to him, though he' might perhaps have been justified in so doing. If. the 'truth he, that the power of attorney was intended as an assignment of one half of the debt due from Evans to Butler, and was made for a good or valuable consideration, and that known to Evans, it might malee a pretty strong case for the equitable interference of the Circuit Court. With that, at present, we have nothing to do. Butler (if the fact be that he executed the release, and gave directions to the Sheriff to restore the property levied on, and return the execution satisfied,) has certainly no right to call upon the Sheriff now, to pay over the money to him.- Upon the whole matter, the Circuit Court is directed to permit the Sheriff to retain the money until that fact be ascertained.


author:
Wash, J.,
      M’Girk, C. J.,

text:
    Kean v. Newell.
    Declarations made by a Sheriff, previous to the day of sale of property taken in execution, that the sale would be fraudulent on account of a mortgage which one W. held on the properly, are inadmissible to defeat the title of a bonajide purchaser of the property at the Sheriff’s sale. No declarations made by a vendor, except those made at the time of the sale, are admissible to defeat the title of an innocent purchaser.
    ON APPEAL from the Boone Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action of replevin, originally commenced by Newell, the appellee, against Kean, the appellant, in the Pike Circuit Court, and removed by change of venue into the Boone Circuit Court, where Newell had judgment, which this Court reversed. The cause was remanded, and upon the second trial, Newell again had judgment, from which Kean now prosecutes his appeal in this Court. The pleas are, first, non cepit; second, property in one Bates; third, property in the defendant; upon which issues of fact were taken and tried. All the evidence given on the trial is preserved by bills of exception, of which a small portion only, need now be stated.

The defendant claimed the property in dispute, by virtue of a purchase from one Longmire, who purchased from one Bates, who purchased on the 4th of September, 1823, of the Sheriff of Ralls county, at a public sale of Newell’s property, had by virtue of two executions, which are set out in the record.

To invalidate the defendant’s title, the plaintiff attempted to show that the Sheriff’s sale was fraudulent, and that Bates, Longmire and Kean, either participated in, or were cognizant of the fraud at the time of their respective purchases; and introduced much evidence, conducing to establish the fraud. Amongst other things, certain declarations of the Sheriff made to one Yallandingham before the sale, “that the sale (10) would he fraudulent on account of a mortgage which one White held upon the property, and that he (the Sheriff) wished Yallandingham to inform his neighbors of the fact and request them not to bid, &c., which were objected to by the defendant. The plaintiff was permitted also to read in evidence, an agreement entered into between the defendant and Longmire, long after the commencement of this suit, by which the mare in dispute was put into Longmire’s possession, to await the issue of the suit; and for which, if the plaintiff succeeded, Longmire was to pay Kean thirty-eight dollars, and Kean to pay half the costs. And if the defendant succeeded, Longmire was to re-deliver the mare to him,” &c. To the reading of which the defendant objected.

Before the jury retired, the defendant by his counsel moved the Circuit Court to instruct the jury to disregard the declaration of the Sheriff made to Yallandingham, that the sale would be void, &c., which the Court refused to do; but instructed the jury that they might take them in connection with the other facts proven, to ascertain whether or not there was fraud in said sale; and that if the facts thus established satisfied them there was a fraudulent sale, then they must find that such fact was known to the defendant, Kean, and all persons through whom the property in dispute passed from the Sheriff, in order to find a participation on the part of the defendant Kean; and that if they found the facts proven constituted the Sheriff’s sale fraudulent, and that Bates, Longmire and Kean participated in the fraud, or were cognizant of the facts thus established, at the time of their respective purchases, it was sufficient to warrant them in finding for the plaintiff. Which instructions and opinion were excepted to by the defendant. It is assigned for error, amongst other things: First. That the Court erred in permitting the Sheriff’s declaration to Vallandingham to go to the jury; Second. In permitting the agreement between Longmire and Kean to be read in the evidence; and Third. In referring to the jury the question of fraud. On each of these points the law is with the defendant. It is true in the general that no declarations of the vendor, except those made at the time of sale, are good evidence to invalidate the title he has passed away. 1 Esp. Rep. 357. See 2 Philip’s Evi. 215; Say N. C. Rep. 397. And Sheriffs’ sales, above all others, should not be defeated by such means. The agreement between Longmire and Kean was altogether irrelevant, and ought not to have been read in evidence. The jury are to (11) find the facts, but whether the facts when found constituted fraud or not, the Court must determine. It was therefore error in the Circuit Court to give the instructions above referred to. A slight circumstance appearing from irrelevant or illegal testimony, might be sufficient to raise the belief that the sale was fraudulent. The jury must find the facts that ponstitute the fraud, that the Court may see and determine whether, in law, they amount to fraud.

A verdict finding a transaction fraudulent, and that the plaintiff or defendant participated in the fraud, should be se.t aside and disregarded, unless such specific facts were found as would enable the Court to see and pronounce upon the fraud.

The judgment of the Circuit Court is reversed with costs, and the cause remanded for further proceedings in conformity to this opinion.

M’Girk, C. J.,

dissenting.

I concur with the Court in this opinion, except so far as relates to tl?e question of fraud; and as to that matter I think the Circuit Court committed no error.


text:
    Casey v. Clark.

      1. In proceedings before a Justice of the Peace, the statute has dispensed with ail matters of mere form.
    2. A substantial statement or declaration of the cause of action must be filed with the Justice.
    ON WRIT OE ERROR from the Cole Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action commenced before a Justice of the Peace, by Clark against Casey.

The statement of the cause of action is in these words: "John J. Clark v. Hardin Casey. In an action of trespass by the illegal use of one or more of his horses, in the summer of 1826, and the consequent loss of one of his horses, at the horse mill, in the town of Jefferson, or by imprudent and unauthorized usage there, to one of his beasts: say a black mare, and he claims in damages for the same to the amount of forty-eight dollars,” &c. The summons of the J us’tice called upon Casey to ap(12) pear and answer Clailc "in an action of trespass on the case.” Casey appeared by his counsel, and objected to the sufficiency of the statement or declaration; his objections were overruled, and upon trial the plaintiff had judgment, from which the defendant, Casey, appealed to the Circuit Court, and there moved to have the judgment of the Justice reversed for the samé reasons; which motion was overruled, and upon trial de novo, the plaintiff again had judgment; to reverse which Casey had brought his writ of error to this Court. It was doubtless a great object with the Legislature to simplify proceedings before Justices of the Peace, so that every man might be his own lawyer; 'to that end they have dispensed with all matters of mere form; hut still a substantial statement or declaration of the cause of action, in cases like the present, are required. The one on which .this action was founded, is so obviously and so variously defective in substance, that we feel no hesitation in saying the Circuit Court erred in refusing to reverse the judgment of the Justice; and that its judgment must he reversed with costs.


author: Tombkins, J.,

text:
    Odle v. Clark.
    £. In all suits before a Justice of the Peace, a brief statement of the cause of action and the amount claimed, must be filed with the Justice.
    2. The statement is necessary to give the Justice of the Peace jurisdiction, and the Circuit Court permitting such statement to be filed, after the cause came up to that Court, is error.
    ERROR to the Circuit Court of Ray county.
   Tombkins, J.,

delivered the opinion of the Court.

Clark, the defendant in error, summoned Odie, the plaintiff in error, to appear before a Justice of the Peace. The action was intended to be trespass. Ry the fifth section of the act establishing Justices’ Courts, &c., it is provided K that in all suits a brief statement of the cause of action, and the amount claimed, shall be made in writing and filed with the Justice, and the same or a copy annexed to the summons; that the service thereof shall be by reading the original summons, and the complaint or statement annexed thereto, in the hearing of the defendant, or by leaving' a copy of the same at his dwelling house or usual place of abode, in the presence of one or (13) more white persons of his family above the age of fifteen years,” &c.

Judgment before the Justice was given for the plaintiff, and on a new trial in the Circuit Court, a judgment was given for plaintiff, defendant here; to reverse this judgment Odie prosecutes his writ of error. On inspection of the record we find that Clark filed no statement of his cause of action with the Justice, and that the Circuit Court, after the case came there, allowed him to file such statement. The want of a statement of the cause of action is, in our opinion, an incurable defect in the proceedings before the Justice.

The statement was necessary to give him jurisdiction, and without it we think the Circuit Court had no cause before it. The judgment of the Circuit Court is reversed.


author: Tompkins, J., Wash, J.,

text:
    Arnold v. Scott.
    The statute of limitations, in an action of trover, for bank notes and silver coin, does not commence running until the plaintiff obtains knowledge of the conversion.
    Wash, J., dissenting.
    ERROR to the Circuit Court of Howard county.
   Tompkins, J.,

delivered the opinion of the Court.

This was an action of trover, brought by Scott against Arnold, to recover damages for certain bank notes and silver coins of said Scott, by him charged to have been converted by Arnold to his own use. Arnold pleaded, first, not guilty ; second, not guilty within five years'. Scott joined issue on the first plea, and to the second replied that within ten years next before the said action was commenced, said Arnold secretly took the said bank notes and silver coins in the said declaration mentioned, out of the possession of him the said Scott; and without his knowledge or consent, secretly converted the said bank notes, &c., to his own use ; and that said Arnold, for and during the space of five years next after the said taking and conversion, concealed the said taking and conversion, so that he, the said Scott, did not within that time come to the knowledge thereof; and avers that he was thereby defeated and obstructed in bringing his action, &c. To this replication the defendant demurred. (14) Judgment for the plaintiff, and to reverse this judgment the defendant prosecutes his writ of error.

By the statute, the time for bringing actions of trover is limited to five years, with a proviso that if any defendant by absconding or concealing himself, or by removal out of the State, &c., where such cause of action accrued, or by any other indirect means shall defeat or obstruct the bringing or maintaining of the action within the limited time, such defendant shall not be permitted to avail himself of the benefit of the act.

For the defendant it was contended that he could not be brought within this provision of the statute, unless it were allcdged that he had done some act to obstruct the plaintiff in bringing his action, within the five years next after the cause of action had accrued; that mere silence on the subject of the taking could not be construed to be an act done, to defeat or obstruct the bringing of the action ; that the law seems to require that the defendant should not be deprived of the benefit of the statute, unless he did some other act (than that by which the right of action accrued) to defeat or obstruct the plaintiff in bringing his action.

All the difficulty in this case seems to arise out of the character of the property, alledged to have been taken and converted. The bulkof money is so small, and one piece of money is so much like another, that its concealment differs very little from the privacy of a prudent and honest man in keeping such property. Between the prudent use and the concealment of more cumbrous property, there is a greater difference. Had the defendant, for example, taken a wagon of the plaintiff, and used it on his farm or on the road, it can hardly he imagined that a jury would find it to he such a concealment as to deprive him of the benefit of the estate; hut had he taken it to his house in the night time, and after taking it to pieces, packed it away in a private room, and there kept it locked up for five years, there could he little doubt that it would he such an act as would defeat and obstruct the plaintiff in hringing-his action, so as to deprive the defendant of the benefit of the act. But iait reasonable, that a trespasser, who appropriates to himself the least cumbrous and mpst precious of all personal property, shall be in a better situation than he who takes possession of more cumbrous and less valuable property. The proof of the concealment of the one, is more easy than that of the otherbut the burthen of the proof lies on the plaintiff, and no reason is apparent why a jury should not be left to ascertain the difference (15) between the concealment of money, and a reasonable privacy in using or keeping it. If the proof is more difficult than it would be in case of more bulky property, the danger of its being secreted is also greater. Policy requires that money should be guarded by the law with as much care as other property j and if there he no doubt that such a concealment of a wagon, as above mentioned, would be within the meaning of the provisions of th,e. act, no reason occurs why the concealment of money should not equally be within its provisions. The replication, we think, is good. The judgment of the Circuit Court is affirmed.

Wash, J.,

dissenting,

I dissenf from this opinion, on the ground, that the statute begins to run, from the time the cause of action accrues; and the ignorance or knowledge, of the plaintiff', as to rights, can make no. difference, since the fact is not susceptible of proof, andmust rest, in m,ost cases, entirely in the breast of him who affirms his ignorance.


author: M’Giuk, C. J,,

text:
    Anderson v. Scott.
    A levy of an attachment on property, generally, without saying whose property-held to be bad; and a garnishee summoned, without any further levy, is not bound to appear.
    THIS was a proceeding by attachment, by Scott against Boggs.
   M’Giuk, C. J,,

delivered the opinion of the Court.

Anderson was summoned as garnishee; he failed to appear and answer, and judgment was entered against him; to reverse which, the cause is brought here. The matter assigned for error is, that the attachment was not so served that the garnishee was bound to appear. I am of opinion that this error is well assigned. The act says that the. manner of attaching the lands, tenements, goods, chattels, moneys, credits and effects of the defendant, shall he by the officer’s going to the place where, or to the person in whose hands or possession the same may be, or to the person who is supposed to be indebted to the defendant, and then and there, in the presence of one or more creditable person or persons, declaring that he attaches the same ; in this (16) case, the Sheriff returns, that he levied the same on some mules, &c., without saying on whose mules the levy was made; to make a levy on mules generally, is not a good levy; nor does ibsay in whose hands they were ; the Sheriff then summoned the garnishee, without levying any attachment on any thing in his hands; this, return and levy are clearly bad,, T,he judgment as to the garnishee, is reversed, with. co$ts.,


author: M’Girk, G; J., Tompkins, J.,

text:
    Collins v. Lee and Parker.
    Court of Chancery have power to set aside all judgments rendered; on Bonds, for a gaming consideration., (Note <z.)
    APPEAL.in Chancery from the Chariton,Circuit'Gourt.
   M’Girk, G; J.,

delivered the opinion of the Court.

By the record, it appears that a bond was given by, Collins, the appellee, for about; $100, to Parker, one of the appellants ;, that afterwards, the bond was assigned to>-, Lee, the intestate of the other appellant; that Lee brought suit on said bond, .against Collins, and thac judgment was rendered against him; that he .toolc.a writ of error to^ this Court, and reversed the same: The recorcffurther shows that the cause was remanded for a new trial; was tried over again, and judgment for Lee was again rendered, for the $100 and costs; and that before the' first judgment-was reversed, exe.cution issued thereon, and the plaintiff’s hill alledges ,$63 were-made thereon. Collins then brought a hill in Chancery, to he released from the balance of the judgment praying the same may be perpetually enjoined, and praying to have the'$63 refunded to him by Lee’s administratrix.;- alledging;in the hill,.that the bond on which the judgment was rendered, was given to secure the payment of the $100 mentioned in it, which was won of him by Parker at-certain games at cards, contrary to the statute ' qf .this State. The answer of Parker admits the money was won by gambling;. the answer of the administratrix admits .the.hond and. the judgment, but does not admit the amount of the judgment; .admits the execution on the first judgment, and admits-something was made on it; .admits the reversal of the first judgment, &c., and says that as to thegamhling, she heard the intestate say that the bond was given for money (17) won at gaming, and insists that she does not know the facts to be so, and insists that Collins shall he hound to prove it.

Upon hill and answer, the cause was set down,for hearing., and the Court decreed-a perpetual injunction to all except the $63, and as to that, decreed that it should he refunded by the administratrix to Collinsand as to- Parker, the Court decreed that he should pay the amount of the-judgment, costs, &c., to the administratrix;, fixup, which decree the. administratrix and Parker appealed to-this Court.,

The first error alledged' and insisted on, is, that a Court of Chancery has no power-to grant relief,' because the party should have defended himself at law; and having failed to do so, cannot now do it; secondly, the answer does not sufficiently admit the gambling consideration;. and thirdly, that as to the $63 collected, the answer does not admit the amount therefor, so as to give a decree for that amount. We will examine the points in order: as to the first point, the statute regulating Chancery, practice, is relied on, which says,.that in all cases where adequate relief cannot be had in the ordinary course of proceeding at law, the several Courts shall have power to proceed according to the rules in- equity, &c. It is contended, these words nega-. five the power to proceed ift Chancery, where the party has or might have had a remedy at law..

This appears to be true in general, but it is contended on the other hand, that though this may be true, yet the, power of the Chancery, Court to proceed in this case is given, by the gaming act, the first section, of which says, that all moneys, notes, bonds, judgments, &e., made, given, granted, &e., where the whole or any part of the consideration thereof, shall he for. any money won by gaming, or playing at cards, dice, or any. other game, shall he void and of no effect. The second section provides that all judgnients) mortgages, assurances, bonds, notes, bills,, specialties, promises, covenants, agreements, or other acts, deeds, securities, or conveyances, given, granted, drawn, or executed! contrary to the provisions of this act, may be set aside and vacated by any Court of Equity, upon hill filed, for that purpose by the person so granting, giving, entering into or executing the same, &c., and then says, or if a j udgment,, the same may he set aside on motion, &e. We hold this second' section gives the po.wer to Courts of Chancery tq set judgments aside, which were rendered.on bands the consideration of which was money won at car.ds, notwithstanding the act rq(18) specting Chancery practice. The two acts are in pari materia, and to he taken as if they were but one actand if'this were-the casein fact, as well as in law, then there would be no difficulty. It then appears, that that part which limits the Chan-, eery jurisdiction, to cases where adequate relief cannot be had at law, is intended to, he the general rule, hut that part which respects the relief in gambling cases, is intended in those instances-to he, and-' is in fact, an enlargement of the general rule ; and in.this way, the two parts cap stand together. It is objected on the part-of the appellants, that the second, section, of the gaming act, only applies to cases where judgments hav.e-heen confessed, otherwise, where there is a bond given, the defendant, or maker of the bond,, would haye. three remedies: first, a defence at law when sued on the bpnd;.- secondly, a remedy in Chancery; and thirdly, a remedy by setting the judgment aside when obtained, on motion.

It is clear that a judgment obtained on a gambling consideration, may be set aside on motion. It is most probable, that when this section was framed, itwas originally framed without that part which says, or if a judgment, then the same- may be set aside on motion,” and that this part was added by way of amendment, without due consideration of its phraseology £ but still I think it is intelligible, and that the-Legislature intended by this latter provision, to provide for the setting aside judgments confessed on gambling considerations. But if this mode of setting aside judgments extbnds to all judgments, no great violence would be done to the intent of the Legislature ; for above all things they appear to. have been solicitous, that no one should receive any benefit from a gambling transaction. But whether or not a judgment confessed, or one obtained by due course of law, can be set aside, it is time enough to consider when the question arises; one thing is satisfactorily certain, that all judgments however obtained, may be attacked and vacated in Chancery, by the very terms of the statute. This may be done, and nothing would be doubtful about the. matter, if it were not for the latter clause of this second sectionupon the whole matter, this point is ruled for the-appellee.

The next point is, does the answer admit sufficiently that the bond was given for a gambling consideration ? I think it does. It is true the answer says the administratrix does not know the fact, and insists it shall be proved. This, I conceive, is proved sufficiently, notwithstanding the demand for farther proof j for the an-. (19) swer admits the intestate did say that the bond was so obtained ; the administratrix does not alledge that she-believes the fact to be otherwise, or that she expects or hopes to prove otherwise;; but simply says she does not know, and demands that it shall be proved. This point is also ruled for the appellee. The next matter of' error, is, that the- Court ordered the- §63 to, bo repaid. This point is ruled for the appellant, because the answer no where admits that was the amount.

The- Court could not, therefore; assume §63 to be the- amountnor could they, on this evidence, decree for any sum. This point is ruled for the appellants. The decree- as to the- $63s is reversed; as to that part which decrees a perpetual injunction, it is affirmed, and the appelle- pay the costs of this appeal.. The cause is remanded for-further proceedings.,

Tompkins, J.,

dissenting;.

I do not think the answer sufficiently- admits the bond to have been given for gambling considerationin every other matter, I agree with the other Judges.

(a.) See contra, Wilkerson v. Whitney, 7 Mo. R., 295.


text:
    La Grange, alias Isidore, v. Chouteau.
    1. The ordinance of 1187, was intended as a fundamental law, for those who may choose to live under it, rather than as a penal statute.
    2. In construing the ordinance, the Court will not be tied down to the particular exceptions contained therein, but will look at its spirit and object.
    3. Any sort of residence contrived or permitted, by the legal owner of the slave, upon the faith of secret trusts or contracts, in order to defeat or evade the ordinance, and thereby introduce slavery de facto, would entitle such slave to freedom.
    4. A citizen of Illinois, and resident there, may own and employ slaves in this State ; and the occasional visits of the slave to that State, do not constitute sucha residence as entitles the slave to freedom.
    APPEAL from St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action of trespass vi et armis, under the statute, to try the right of said Francois to freedom. Chouteau had judgment in the Circuit Court, from which Francois has appealed to this Court. The material facts (as preserved by a bill of exceptions,) are stated by the appellant’s counsel. That in the year 1816, one Pascal Cerre, being the owner of said appellant, (who it is admitted was not then entitled to his freedom,) was desirous of selling said slave, and the said Pierre Chouteau, jr., the appellee, wished to purchase him. That Cerre declined selling the slave to Chouteau, because he, Cerre, wished to sell him to some person who would remove him from St. Louis.

That one Pierre Menard, a citizen of Illinois, and then residing at ICaskaskia, proposed purchasing the appellant, and accordingly Cerre sold him to said Menard for the sum of $600, which was paid by said Menard. That said Menard, immediately after said sale, took said appellant to Ste. Genevieve, and from thenco sent him to (21) work at Mine a la Motte, in Washington county, in this State. That some time afterwards, the appellant was sent to ICaskaskia, where he was put on board a keel-boat, and after remaining about two days, went in said boat as a working hand to New Orleans. That about the last of March, 1817, the said appellant returned in the same boat to ICaskaskia, where he remained a few days, (one witness stated eight or nine,) assisting to unload said boat. Then was sent in said boat to the big swamp in Cape Girardeau county; and after remaining there five or six weeks, returned in the boat to ICaskaskia, and after two or three days, he was sent to St. Louis and delivered to the defendant, where he has remained ever since — and that said Chouteau, since said delivery, in consideration thereof, has paid the sum of $500 to said Menard.

It further appears from the testimony of said Menard, preserved in the hill of exceptions, that he, Menard, never bought the appellant with the intention of keeping him, or making ICaskaskia his place of residence; but that the slave had been purchased by him for Chouteau, to whom he was to be delivered after a few months; the object being to get around Cerre’s objections to selling him in St. Louis. At the trial in the Circuit Court, the counsel for the appellant moved the Court to instruct the jury—

First. That if the jury shall be of opinion that the plaintiff remained in the State of Illinois with the person who purchased him, and who was a resident of said State, they must find for the plaintiff

Second. That the right of the plaintiff to his freedom is not affected by any secret trust or understanding between the person who purchased and brought him to Illinois, and any other person whatsoever.

Third. That if the jury shall be of opinion, that the plaintiff was during any time lawfully a resident of the State of Illinois, and in the service of a citizen of that State, claiming property in, and owner of said plaintiff, they shall find a verdict for the plaintiff.

Fourth. That if the jury shall be of opinion that the plaintiff was sold absolutely by a citizen of the State of Missouri to a citizen of the State of Illinois, and belonged under such sale to said purchaser, no secret understanding between said purchaser and a third person shall affect the rights which the plaintiff may otherwise have to his liberty, as a consequence of his residence in the State of Illinois.

The Court refused to give the first, second and fourth instructions — gave the third (22) as asked, and in lieu of the fourth, instructed the jury, that if they believed the plaintiff was bought by Col. Menard, for his own use, and taken to Illinois and kept there with the intention to make that the slave’s permanent place of residence, they ought to find for the plaintiff. The refusal of the Court to give the instructions asked for, is assigned for error; and the cases af Merry v. Menard & Tiffin, and Winny v. Pettibone, decided by this Court, have been relied on as giving a construction to the oidinance of 1787, in favor of the plaintiff’s claim on the ground of residence.— Without adverting to the precise terms of those decisions, it may suffice to state, that they cannot be made to push the principle so far. Any sort of residence contrived or permitted by the legal owner, upon the faith of secret trusts or contracts, in order to defeat or evade the ordinance, and thereby introduce slavery de facto, would doubtless entitle a slave to freedom, and should be punished by a forfeiture of title to the property. In this case, it is most apparent that the object of Menard and Chouteau, was to get round the objections of Cerre, and not to-evade or violate the ordinance. This Court has decided, that it will not be tied down to the particular exceptions contained in the ordinance, but will look at its spirit and object, and a case cannot be well conceived that could fall more fully without the spirit of its provisions. The owner of a slave removing to Illinois, and carrying his slave along with him to reside there permanently, must intend to introduce involuntary servitude or slavery,” against the express terms of the ordinance; but the owner of a slave who is merely passing through the country with him, or who maybe resident in Illinois and Inay choose to employ him in Missouri in mining, or as a sailor, or boat hand, upon the river or high seas, in boats or vessels that occasionally lade and unlade their cargoes at some port or place within the State, though he may not do much in extending the fundamental principles of civil and religious liberty” certainly, does nothing towards engrafting slavery upon the social system of the State. It may be seen at once, to what injury and inconvenience a contrary doctrine would lead. The ordinance was intended as a fundamental law, for those who may choose to live under it, rather than as a penal statute to be construed by the letter against those who may choose to pass their slaves through the country. Under this view of the case, it is immaterial whether Menard was the owner or bailee of the slave. It is very certain that no secret trust or understanding with Chouteau, touching the title of the slave, could have prevented the operation of the ordinance, if the (23) residence had otherwise been sufficient to entitle the plaintiff to freedom; hut it is equally certain that no such residence is proven.

The first instruction prayed for, was altogether too general, and was rightly refused. The second and fourth might have been given or refused without prejudice to either party. The position assumed by the appellant’s counsel was correct in the abstract, but not arising in the cause, the Court did right to refuse the instruction. The third instruction, which was given, placed the question of residence on its true ground. The residence of the owner may be looked to, not as fixing the residence of the slave, but as one circumstance along with others from which the jury may infer the intention to evade the ordinance.

Upon the whole matter the judgment of the Circuit Court is affirmed.


author: M’Gieic, C. J.,

text:
    The State v. Gardner.
    An indictment against a Justice of the Peace for a wilful misdemeanor in office should show such facts as would amount to such misdemeanor, independent of the word wiful; and to make this out, the indictment should charge the act to have been done, knowingly and corruptly.
    The instrument should alledge the,fact to he wilful; not that the defendant wilfully did an illegal act; which was held bad on demurrer.
    ERROR from St. Louis Circuit Court.
   M’Gieic, C. J.,

This was an indictment of a Justice of the Peace for a supposed misdemeanor in office; the indictment was demurred to, and the demurrer sustained: to reverse this judgment, the State brings the cause to this Court by writ of error.

The first section of the act of 4th January, 1825, Revised Code, 469, provides for the appointment of Justices of the Peace, and the act in part defines their duties— the 5th section of which provides “that the said Justices of the Peace shall continue in office during the term of four years from the date of their commissions, unless sooner removed therefrom on conviction for bribery, perjury, or other infamous crime, or on conviction for any wilfiil misdemeanor in office, by indictment in the Circuit Court,

(24) The indictment charges that Gardner was a Justice of the Peace, and that as such Justice of the Peace, did, on a certain day, wilfully issue his summons directed and delivered to the Constable of St. Ferdinand township, commanding the said Constable to summon one John Spencer to appear before him,.the said Gardner, on a certain day, to answer to a pretended demand in favor of one black Locker, a negro man slave, which summons was served — the said Gardner at the time of issuing said summons, knowing that Locker was a slave and the property of him, the said Gardner, to the gregt perversion of public justice, and contrary to the form of the statute, in such case made and provided, &c.

The point made in this case is, whether the indictment charges any misdemeanor. The words of the law are: on conviction for any wilful misdemeanor. The words of the indictment are : that the defendant wilfully issued a summons, &c. And the Circuit Attorney insists that it being clearly a void summons is a misdemeanor; and it having been alledged to be wilful, the statute is satisfied and the indictment good. T am of a contrary opinion. In this case two things are required. First. That the indictment should show such facts as would amount to a misdemeanor independent of the word wilful, and to make this out the indictment should charge the act to haye been done knowingly and corruptly; and secondly, that the fact should he alledged to be wilful. It may be that the Legislature intended to use this word to draw a distinction between intentional and corrupt violations of official duty, and those that are only instances of gross ignorance or negligence. If the word will no.t hear this meaning, J know of none else it can have; for without this word the law would define every misdemeanor to be wilful, except in a case where a particular act is declared by express enactment to be such.

The judgment of the Circuit Court is affirmed with costs.


author: Tompkins, J.,

text:
    Hempstead v. Darby.
    A notice on the day of the trial of a cause, before a Justice of the Peace, by one of the parties in the trial, that he intended at a subsequent day to take an appeal_ held, not to be a sufficient notice of sueh appeal. (Note a.)

    ERROR to St. Louis Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

Darby sued Hempstead before a Justice of the Peace, and had a judgment. On the day of trial Hempstead gave notice of an appeal. The day of trial was on the 19th day of January, 3828, and on the 26th day of the same month he asked an appeal, which was granted and bond given on the same day.

The Circuit Court dismissed the cause from the docket for want of notice. The act of 21st of February, 1825, provides that in all cases of an appeal, not prayed for on the day of trial, the party appealing shall notify, in writing, the opposite party ox his agent, &c. The defendant could not properly call himself the party appealing until his appeal was prayed for and perhaps granted. The notice then given on the day of trial before the Justice, of an intention to take an appeal seven days after the trial, does not seem to satisfy the law. Had he taken his appeal on the day of trial there would have been no need of notice 5 but as it was not taken on that day, it ought to have been given in writing. This Court will not, where a legal notice has not been given, presume such notice from the fact of the party, to whom the notice ought to have been given, coming into Court and moving to dismiss the cause for want of notice. Had Darby proceeded in his cause by pleading to the merits, or by doing any other act to admit notice, the case would have been different. The judgment of the Circuit Court is affirmed.

(a.) See Cave & Morris v. Hall, adm’r, 5 Mo. R., 61.


author: M’Giuk, C. J., Wash, J,,

text:
    Vallad v. The Sheriff of St. Louis county.
    Warrants issued by the Governor for the apprehension of fugitives from justice, aro required to be under the Great Seal of the State ; and the impression of the seal being unintelligible, makes void the warrant,
   M’Giuk, C. J.,

delivered the opinion of the Court.

Paul Vallad presented his petition to the Court for a writ of habeas corpus, alledg-ing that he was illegally imprisoned, under a protended warrant issued by the Governor of the State, on a demand made by the Executive of Illinois, charging the prisoner to he a fugitive from justice.

The writ was granted, the Sheriff returned the cause with the warrant. It was objected the warrant was void for want of being under the Great Seal of the State. The act of the General Assembly in such cases, made and provided, requires the warrant to be under the Great Seal of the State. The armorial bearing, the emblems and devices of the Great Seal are declared by statute. By an inspection of the staG ute, and the impression on the alledged warrant, we can scarcely perceive any one distinct requisite of the Great Seal on the impression, and because the impression is wholly unintelligible, we think the warrant void. The prisoner is discharged.

Wash, J,,

dissenting.

The question, as has been stated, was one of inspection purely. The impression of the seal was certainly very faint, but to my eye enough appeared to satisfy my mind that it was the Great Seal of the State, and that the devices, words, and letters appearing thereon, could not he a counterfeit, or pertain to any thing else than tho Great Seal,


text:
    Town v. The Clerk of the Supreme Court.
    Writs of error do not lie from the Supreme to the County Courts.
    MOTION for a writ of error to the County Court.
   M’Girk, C. J.,

delivered the opinion of the Court.

The case appears to he that the counsel for Mr. Town filed his prarcipe with the Clerk, requiring him to issue a writ of error to the County Court of St. Louis county, to bring Up a certain matter there decided and adjudged, wherein by law an (27) appeal does not lie to the Circuit Court. The Clerk refused to issue the writ, and an application is made to this Court to compel the Clerk to issue the writ. It is contended by Town’s counsel that he is entitled to the writ by the third section of the fifth article of the Constitution of the State, which says the Supreme Court shall have a general superintending control over all inferior Courts of Law ; shall have power to issue writs of habeas corpus, mandamus, &c.; that by this provision the writ should issue, notwithstanding the Legislature have not, by any enactment, provided for this case; and notwithstanding the provision in the eighth section of the same article, which says, “ the Circuit Court shall exercise a superintending control over all such inferior tribunals as the General Assembly may establish.” It is contended that this superintending control of the Supreme and Circuit Courts is concurrent, and that the Supreme Court shall exercise this power.

It is contended on the part of the Clerk, that the single argument of inconvenience is a sufficient answer to this construction, for if it were as Town’s counsel contends, then the consequence might be that at the same time the two Courts might have the same matter before them, and this would produce great inconvenience. It is also insisted by the Clerk’s counsel, that when we take into view the words of the second section of the fifth article, which says the Supreme Court shall have appellate jurisdiction only, except in cases otherwise provided for by this Constitution, in connection with the two former clauses, the matter must be clear for the Clerk. The argument of inconvenience must, in doubtful cases, have a great weight j it is agreed, and we think with great propriety, that the superintending control of the Supreme Court, given by the Constitution, is completely satisfied by the Legislature, when they limit that to appeals and writs of error from the Circuit Courts to this Court, leaving the writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs given in the Constitution to the Supreme Court, untouched.

It is true that the Legislature have not, in terms, given a writ of error from the Circuit Court to the County Court,but the act of the General Assembly of 9th Jan. 3825, (see Revised Code, 274,) says that the several Courts shall respectively have power to issue all writs which may be necessary in their respective jurisdictions, according to the principles and usages of law- It seems this provision is sufficient to enable the Circuit Court to issue a writ of error, or a writ by any other name, to bring up any (28) matter or thing, had or done in the County Court touching the right of parties litigant therein; and more especially so in cases where no appeal is given. So that nothing in this case can be adduced from the argument of the plaintiff’s counsel, that unless his construction prevails, there will he a right without a remedy. Upon the whole matter, the motion is overruled with costs.


text:
    Papin v. Ruelle.

      An action of trespass will lie- before a Justice of the Peace, for trespass committed os» lands; but the plaintiff in such action can recover single damages only. Trebladamages are recoverable only in an action of debt.
    ERROR from St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

The plaintiff, Papin, sued Ruelle in an action of trespass before a Justice of the Peace, for cutting down, taking and carrying away certain trees from off the plaintiff’s land, &c. The plaintiff had judgment for one dollar, and the Justice gave judgment for three, under the statute allowing treble damages. Ruelle appealed to the Circuit Court, where the judgment of the Justice was reversed, and the appeal dismissed, on the ground that Papin had misconceived his action. Of this there can he no doubt. The statement, or declaration and summons, both show it; treble damages are recoverable only in an action of debt. The plaintiff’s' statement, however, is in form and substance a good declaration, in trespass generally, under the statute, Rev. Code, p. 413, sec. 1 ;■ and upon it the plaintiff might have recovered for the actual damage sustained. The case of Papin v. Montague, decided at the last term of this Court, is not distinguished in. principle from the present. The Circuit Court erred in dismissing the appeal; its judgment is, therefore reversed, and the cause remanded for a new trial conformably to this opinion.


author: Tomíkins, J.,

text:
    Watson v. Musick.
    I. tn an action on the case for Words spoken, they should be laid in the declaration as they Were uttered.
    B. The evidence must prove such of the words as will suffice to sustain the declaration — it will not do to prove equivalent expressions.
    3. When there is any alternative evidence before the jury, the Court should instruct the jury hypothetically.
    ERROR to St. Louis Circuit Court.
   Tomíkins, J.,

delivered the opinion of the Court.

This is an action on the case brought by Watson, the plaintiff in error, against the defendant in error, MUsick, for Words spoken. The declaration Contains two counts - — the words charged to have been spoken in the first áré: {íYoú,” meaning said Watson, are a hog stealer, you Stole two hogs from Mufphy, the way you make out your living is by Using other men’3 property.” The Words Sllédged'to have been spoken in the second are: “ He,” meaning the said WatsOn, “ is a hog stealer, lie stole two hogs from Murphy; the Way he makes his livihg is by using othef nlen’s property.” The plea was not guilty ; verdict aUd judgment for the defendant. To reverse this judgment, plaintiff prosecutes his writ of error.

On the trial it was proved that the defendant spoke Of the plaintiff these words: l( Now any body may steal hogs as he would not have to pay for them; ” and then addressing himself to the plaintiff, Spoke these words ¡ Murphy said you stole two of his hogs, and I dan prove he said it.” On the cross examination of Andrew Link, a witness, he said he Was not sure whether the words used by the defendant Were, You stole .two hogs from Murphy,” or, “ Murphy told m'e ydu stole two of his hogs, and I can prove he said so.” It was proved by other witnesses that the defendant spoke these Words to the plaintiff: Murphy told me that you stole two of his hogs, and I can prove that he said so.” The testimony of Link, as well as that oF the other witnesses, refers to Words spoken by the defendant immediately after a trial of a cause before a Justice of the Peace, mentioned by them; and all the wit-* nésses probably refer to the same conversation. It was also proved that, at the time above referred to, the defendant said to the plaintiff, in the presence of the same wit-= nesses,I don’t live Open other men’s property.” The plaintiff also proved that previous to the Same timé, the defendant had told James Walton that the plaintiff, Watson, had taken his (the defendant’s) hogs, and that he would make him pay for (30) it; no other material evidence was offered.

The Court, at the request of the defendant, instructed the jury i

First. If they find from the evidence, that the Words spoken by the defendant Were « now any body might steal hogs, as he would not have to pay for them,” or Words of the samé import, they do not support the declaration.
Second. If the Words spoken by the defendant were, tlie Murphys said you stole hogs, and I can prove they said so, and more than that, I don’t live upon othef- men’s property,” or words of the same import — the declaration is not supported.
Third. If the jury find from the evidence, that defendant did but re-publish a slander invented by another, and at the same time such re-publication was accompanied by the author’s name, such, re-publication does not support the declaration. The Court gave the instruction as required.

The plaintiff then asked these instructions-:

First. If the jury shall be of the opinion, that by the words “now any body might, steal hogs, as he would not have to pay for them,” the defendant intended to say the plaintiff had stolen'a hog or hogs, they shall find for the plaintiff.
Second. That if by the words “ I don’t live on other men’s property,” the jury-shall be of opinion, the defendant intended to say that the plaintiff lived on other men’s property, they shall find for the plaintiff.
Third. That if the jury shall be of opinion, from the whole of the eyidence, that said defendant charged the plaintiff with.stealing.the hogs of Murphy, they shall find for the plaintiff.
Fourth. That if they shall be of'opinion, from the whole of the evidence, that said defendant charged said plaintiff with having taken the hog of the defendant, by stealing the same, they shall find for the plaintiff.

The Court refused to give the instructions asked by the plaintiff. The slanderous words should be stated as they were uttered, 1 Ckitty, 384; for this, there is the most obvious reason, viz: to inform the defendant against what charge he must defend-himself. It is not, certainly, expected, that every word is to he proved exactly as laid in the declaration, but he must prove such of them as will suffice to sustain his declaration, and it will not suffice to prove equivalent expressions ; see same author, same page, and the authorities cited. Had the words, proved by the plaintiff to have been spoken by the defendant, been charged in the declaration to have been spoken (31) by the defendant, it is probable that by an apt reference to the subject on which the defendant was conversing, the proof of slander might have been made out by the testimony here produced: but it seems very clear that the words, “ now any body might steal hogs, as he would not have to pay for them,” ought not to be admitted to sustain a declaration charging the defendant with saying to the plaintiff “ you aro a hog stealer, you stole hogs from Murphy,” &c. It is the opinion of the Court, that all the instructions asked by the defendant, were properly given. The plaintiff' cannot sustain his declaration by proving that the defendant re-published a charge made against the plaintiff by another person. The third instruction asked for by the plaintiff is, “ that if the jury shall be of opinion, from the whole of the evidence, that said defendant charged the plaintiff with stealing the hogs of Murphy, they shall find for the plaintiff.” Link, a witness introduced by the plaintiff, on cross-examination, said he was not certain whether the words used by the defendant were “you stole two hogs of Murphy,” or “ Murphy told me you stole two of his hogs, and I can prove he said soalthough the other witnesses, referring, probably, to the samo conversation, proved the latter words to have been spoken, and thereby seemed to. exclude the probability of the former, to-wit: “ you stole two of Murphy’s hogs,” having been used by the defendant, yet still the Court ought to have left the jury at liberty to find these words to-have been the words spoken'by the defendant, they would have supported the first count, if the jury could have believed them to be the language of the defendant. This instruction was of so general a character, that the Circuit Court, probably lost sight of. the alternative statement of the-evidenoe by; Link. This instruction should, in the opinion of the Court, have been given. The-other instructions asked by the plaintiff were properly refused.

The judgment of the Circuit Court is reversed, and. the cause remanded for further proceedings.


author: M’Gikic, C. X,

text:
    Stokes v. O'Fallon, executor, and Stokes.
    1. A testator dying, and leaving a widow, of whom-no mention is made in the withheld, as to the widow to have died intestate.
    2. The widows of alien residents, who die in this State, are entitled to dower, s. The debts of the deceased must be first paid, before the allotment of dower.
    4. The personal estate of the deceased, is the primary fund for the payment of hicdebts.
    APPEAL from St. Louis Circuit Court-
   M’Gikic, C. X,

delivered the opinion of the Court.

Tiiis was a hill in Chancery for dower, for a discovery, and for marshalling assets, &c.

Tiie record shows, that the complainant was the lawful wife of William Stokes, who was ail alien. That in 1818, Stokes took the preparatory steps towards naturalization. That in 1823, Stokes died, possessed of considerable real and personal estate. That before his death, he made his last will and testament, devising and bequeathing his whole estate, real and personal, to O’Fallon in trust, for the benefit of Ann Stokes, his illegitimate daughter. That Stokes left no lawful issue. That the personal estate is absorbed in the payment of debts, and the principal part of the real estate also. It also appears that the complainant, at the time of Stokes’ death, was an alien.

The complainant claims, first, to be endowed of one half of the personal estate of wh ich the testator was owner at the time of his death — before payment of debts; and that inasmuch as this fund has been used up in the payment of debts, that the remaining lands may be charged with that half, and sold or applied to raise an equivalent, to the use of the widow absolutely.

The answer admits the chief things charged in the bill, and denies the right of the complainant to have any share of the personal property, in exclusion to the payment of debts out of that fund; and insists that an alien wife is not entitled to be endowed. The Circuit Court, on this state .of things, dismissed the complainant’s bill, with costs.

The error assigned, embraces the Whole matter on the record. I will first consider' the question: — whether, by the laws of this State, as they stood at the time of Stokes’ death, in September, 1823, an alien widow could be endowed ? And then I will con-* aider the question : — ‘whether a widow’s share of the personality, where the estate is solvent, is to be deducted from the whole assets as they stood at the time of the death (33) of an intestate ? or Whether that share shall be deducted from the remaining as* sets after the payment of debts ?

In this ease, before I proceed to tbs'main qtiestion,. I will notice the fact, that in the will, Stokes is silent as to the widow, which silence by the act of the Legislature-of 1st December, 1821, concerning wills and testaments,, according to my reading of the 4th section of that act, declares, that when, any person shall, make a will, and-die, leaving a widow, &c., making no mention, in. the will, of the widow 5 that as to her, he shall be deemed to die intestate. Sodhat soTar as respects this widow’s right to-he endowed, I will consider it as a case of intestacy..

I will consider the question whether an alien widow can he endowed. By the act of 6th December, 1820; aliens residing in anf part of the If. 9. or- Territories, Who. shall have made a declaration of their intention of becoming citizens of the U. S., by taking' the necessary oath in due-form of law, are declared capable of acquiring and holding real estate in the same manner, and to the-same extent, that citizens of the U. S-., can do: This act establishes the capacity of the complainant's husband to hold a thing'oüt of which a citizen’s Widow Would be endowed.

I think it is clear from a review of the several acts of the Legislature; passed' at different periods of time, that the Legislature never intended to exclude alien widows from dowerit is true, that by the common law, an alien could not be endowed, and the-reason given for it, is, because all alien could not hold land. The act passed 19tb. January, 1816, says, the-common law of England, which is of a general' nature, and not contrary to the Jaws of this Territory, shall he the rule of decision — so that there can be- no doubt that at common law, the alien Widow coüld not be endowed, unless that part of it which prohibits it was contrary to the then laws of Missouri.

The most recent act in force, on the subject of descents of real' estate, at tile time of Stokes’ death', is, the act to’ direct descents and distributions, passed 11th January, 1822; which says, that henceforth, when any person, having title to real estate, shall die intestate, his- estate shall descend' and he distributed, after the- payment of debts; in a certain manner, deducting the widow’s right of doWer, if there be one. This-saving, in the act, does no more than save the widow’s dower from descending to the heir, which it otherwise would have dofie, hut the saving is a general one, and it (34) seems to me, if the Legislature did' not intend ail widows to h¡gve dower, whether aliens or not, this was a most proper occasion for them to have said so; for,, in this case, the whole suhjectof descents Was before them. The expressions, de-ducting the widow’s right of doWer, if there he one,” without talcing notice of the-fact, that there will often, in such cases, be alien widows, is strong evidence they did not intend to exclude them. The next act to be noticed, is that of 25th Jan., 1817, Which says, that the estates of persons dying intestate, shall descend and be distributed in the following manner, to Wit: — If the intestate shall leave- a widow and a child or children, the doWer of such widow shall be one-third, &c., and then in the same section, the act says, and any person dying intestate, leaving a widow and no> lawful issue, the widow shall' be- entitled, as her doWer, to one equal half of the estate of which her husband died seized, after his just debts are paid, the personal pro=*-perty absolutely, and half the lands and slaves, for her life ; upon this act, it is conceived, the widow’s right to dower mainly depends; and this is the law the Legislature had their eye on, in the act of descents, of 1822, wherein they save the widow’s dower from the operation of that act by an express saving.

Upon this view of the several laws, I will remark, that when this act, 1817, was passed, the law makers must have known that the common law was adopted, and that by it, all widows could not be endowed: yet they use general words, clearly including all widows, as well aliens as others. This general act is subsequent to the introduction of the common law, and is broad enough to suppress the common law rule. If alien widows are to be excluded from the benefit of the general words so as to be excluded from dower, under the common law rule, it should only take place to answer some great end of State or national policy. I think neither reason nor State policy requires these general words to be narrowed. The state policy of England in refusing aliens to hold land, never did exist in the United States, nor did it ever exist here; at the veiy time this act of 1817 passed, it could not have been a fact unknown to the Legislature, that there were in the country many alien wives; and I cannot suppose they had any narrowness of feeling on the subject. Furthermore, before the act of 1817, the act of 1815 contained, with respect to dower, about the same expressions ; so that I think I may safely say, before the common law rule came here, aliens might have dower, and if this be true, then it must be clear that the statute (35) law was not impaired by the introduction of the common law. For the introducing act introduces no new rules of common law, contrary to the laws of the country. At the time this dower was cast, aliens might hold lands by the'express terms of the statute of 1822; this woman, however, does not come within the terms of the statute; but this act goes far to prove, that whenever the reason of the law ceases, the law ceases also. The Legislature' seeing, perhaps, that there existed no political reason here to prevent aliens resident from holding land,'have thought it the best way to do away all doubts.

The reason in England forbidding foreigners to hold land, was a rule founded on the jealousy the King had against being over-run by strangers ; but in this Stale, the policy is to invite them, by every mode likely to be effective. This point being for the complainant, I will consider the next point, which is : shall the widow be endowed of one half the personality before the debts are paid, or shall she only have the half of the personal assets remaining after the debts are paid? This point is ruled for the.defendant by the 4th section of the act, directing the probate of wills, &c., passed January, 1815; it is declared, that all debts owing by any person, at the time of his decease, shall be paid by his or her executor or administrator, reserving first to widows, in all cases under this act, their right of dower. The 9th section of the same act says : the remaining part of any land) slaves, and personal estate, after the widow’s right of dower, as hereinbefore provided, and after the payment of all just debts, shall descend and be divided, &e. If this law had been in force at the time of Stokes’ death, the complainant would prevail, — but, about two years after, the Legislature again took up the subject, and occupied the same identical ground with a new and contrary enactment. See the act of 25th January, 1817, entitled, an act supplementary to, and amendatory of the several acts, directing the probate of wills, &c.; the first section of which, provides that the estate of persons dying intestate, shall descend and be distributed in the manner following, to wit: If there shall be a widow and child or children, the dower of such widow shall be one-third part p¡f said estate, after all just debts are paid, and in the same section, in speaking of a widow where there is no children, the Same language is used: after the debts are paid, the widow shall be endowed. This view of the subject satisfies me that the debts must first be paid. I am also clear, that the personality is, or was, at that time (36) the primary fund for the payment of debts, and that the real estate cannot, in a case like this, be charged to raise a fund to the use of the widow. The decree is re* versed, and remanded for further proceeding.