text:
    Shields, Plaintiff in Error, v. Powers et al., Defendants in Error.
    1. The title acquired by virtue of a sale under an erroneous judgment or decree is good and valid although the judgment or decree should afterwards be reversed, provided there is no stay of execution and no supersedeas at the time such sale is made.
    2. A minor against whom a decree may have been rendered is not entitled, it seems, to a day in court on attaining his majority to appearand show cause against the decree.

      Error to Benton Circuit Cowrt.

    The facts of this case, so far as it is necessary to set them ■ forth, are briefly as follows: In 1841 one Jonas Heath sold the land in controversy to one Peter Ashley. Ashley did not pay the whole of the purchase money. Both Heath and Ashley died. Heath’s administrator brought suit against Ashley’s administrator to recover the balance of the purchase money. He recovered judgment. He then filed a bill in chancery against Ashley’s administrator and- his minor heirs . to subject the land to the payment of the purchase money. A guardian ad litem was appointed for the minor defendants, but no answer was filed for them. A decree pro confesso was rendered without the taking of any proof. Under this decree in 1849, a sale was had of the land and one White, under whom plaintiff claims, became the purchaser and received the sheriff’s deed therefor. This decree was after-wards reversed on a writ of error to the supreme court. On suing out the writ of error, no supersedeas had been granted. (See Heath’s adm’r v. Ashley’s adm’r et al., 15 Mo. 393.) Defendants claim title by virtue of a subsequent sale by Ashley’s administrator for the payment of the debts.
    The court gave the following instruction at the instance of the defendants: “ 1. The court instructs that it devolved on the plaintiff, in order' to recover in this case, to prove to the satisfaction of the jury that he was entitled to the possession of the land at the time of the commencement of this suit; that in order to make out a title under the sale to Horace H. White by virtue of a decree in chancery it was necessary to show a valid decree; that the decree read in evidence is invalid, and the purchase under it by Horace H. White conferred on him no sufficient title to enable plaintiff to maintain this action against these defendants or either of them ; and though the jury may believe all the evidence introduced by plaintiff in this cause, they will find a verdict for defendants.”
    Instructions asked by plaintiff were refused. Plaintiff took a nonsuit, with leave, &c.

      Johnson Sf Ballou, for plaintiff in error.
    I. It was contended, among many other points, that the instruction given was erroneous; that at the time White acquired title under the decree it was not void, but a valid decree in full force and unreversed; that its reversal after-wards in nowise affected the title acquired at the sheriff’s sale. (8 Mo. 257; 9 Mo. 121; Sugd. on V. 61; Sch. & .Lef. 565; 2 Bro. 248; 16 Mo. 173; 4 Mo. 253; 19 Mo. 425 ; 7 Mo. 426; 10 Pet. 473 ; 2 Pet. 163; 8 Johns. 361; 17 Mo. 71.)

      Freeman, Byland Sf Son, for defendants in error.
    I. The decree under which White purchased was invalid and of no effect. It was taken pro confesso against minors without plea, answer or proof. (8 Ohio, 377; 8 Blackf. 300; 6 Sm. & Marsh. 61; 15 Mo. 393; 18 B. Monr. 666, 779 ; 16 B. Monr. 289.) No day in court was given to the infants. (8 Ohio, 377; 1 Harr. Oh. P. 425; 11 Mo. 421.) Being invalid as to the infant heirs, it was invalid as to all, for a judgment is an entirety. (5 Leigh, 460; 11 N. H. 299; 12 Johns. 434; 5 Wend. 161.) The instruction given was proper. The judgment against the infants was not merely erroneous; it was irregular and void. (See 15 Johns. 121; 1 Glow. 735; 3 Wils. 341; Oro. Jac.‘ 464; 1 Hale P. 0. 24; 13 Mo. 458; 7 Mo. 426.)
   Scott, Judge,

delivered the opinion of the court.

This record presents a case of great hardship on the infants whose lands have been sacrificed under an erroneous decree; but when we see that they are not to be benefitted by the result of this suit, whatever it may be, our regret at the want of conformity to law in the proceedings by which they were deprived of their inheritance is much diminished, as their rights, whatever they were, have all, by process of law, been conveyed to opposing claimants, those claiming against the erroneous or invalid proceedings being purchasers for an inconsiderable sum at an administrator’s sale made for the payment of the debts of the ancestor of the infants.

The erroneous judgment, under which the infants’ lands were sold, was brought up to this court and reversed on a-writ of error, but no supersedeas having been applied for or obtained pending the writ of error, the land was sold to one under whom the plaintiff claims. Now we know of no principle by which we can distinguish this case from all others in which an erroneous judgment is reversed on error. In such cases a sale under execution before the reversal passes title to the thing sold, and those who have been deprived of their property by the sale must look to a restitution of the fruits of it only. All the cases referred to by the defendants, in which it was held that decrees taken against infants for want of an answer, pro confesso, were erroneous and void, were original suits in which the regularity of the proceedings in obtaining or proceeding to judgment were reviewed. They were cases on appeal or standing for judgment, and not collateral suits, as this is, brought to declare as nullities the proceedings in an original suit. We do not see a distinction taken between the reversal of judgments against infants and those against adults. The case of Wyatt v. Mansfield’s heirs, 18 Ben. Monr. 779, is an anomalous one and founded on statutes with which we have no familiarity.

In this case, it seems, the minors were served, and guardians ad litem appointed, who never consented to act, and the bill was taken as confessed against the minors ; and without any proof a decree was rendered against them. Before, however, any final decree was rendered, a guardian ad litem appeared and objected to a decree without proof, but his objection was overruled.

If the not giving a minor a day after his attaining his majority was error, we do not distinguish it from any other error for which a decree might be reversed. Perhaps in such cases, as a minor was entitled to it, he would be allowed the benefit of it whether it was granted him or not. But the answer to this objection is that, as our law now seems to stand, the minor has no such right in any case. The case of Ruby v. Strother, 11 Mo. 417, was overruled by the case of Creath v. Smith, 20 Mo. 113, concurred in by a majority of the court.

Reversed and remanded;

the other judges concur.


source: Caselaw Access Project

author: EwiNG, Judge,

license: Public Domain

text:
    North Missouri Railroad Company, Plaintiff in Error, v. Winkler, Defendant in Error.
    1. Where a person subscribes to the stock of a railroad company upon condition that the road should “pass” through a certain county, and on a certain designated route, it is not a condition precedent to the right of the company to demand the amount subscribed that it should actually construct and complete the road along the line designated; it is sufficient if the road be thus permanently located.

      Error to Macon Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Carr 8f Welts, for plaintiff in error.
    I. When the company had run the line of the road on the route indicated and permanently located it, it “ passed” through the county on the route indicated within the meaning of the agreement. (Central Plank Road v. Clemens, 16 Mo. 359; Pacific Railroad v. Renshaw, 18 Mo. 210; Hannibal Plank Road Co. v. Menafee, 25 Mo. 547; Redfield on Railways, 74 ; McMillan v. Lexington and Marysville R. R. Co. 15 B. Monr. 218 ; State v. Collins, 6 Ohio, 61; 18 Mo. 562 ; 9 Watts, 458 ; 27 Penn. State, 261 ;• Henderson and Nashville R. R. Co. v. Lavelle, 16 B. Monr. 358; 7 Ind. 407.)

      Gilstrap 8f Taylor, for defendant in error.
    I. The passing through of a permanent location is not the passing through of the road. Of what interest could it be to secure the location of the road at a particular place without reference to whether it would be built or not ? The defendant intended to secure to himself the benefit of a railroad built and in operation.
   EwiNG, Judge,

delivered the opinion of the court.

This was an action by the North Missouri Railroad Company against the defendant to recover one share of stock which he had subscribed thereto. The petition alleges that “ on the 23d of December, 1853, the defendant subscribed to the capital stock of said railroad company one share, amounting to one hundred dollars, by which he agreed to pay all calls upon said stock as the same should be made by order of the board of directors of said company, provided the road of said company passed through Macon county, on the dividing ridge which separated the waters of the Mississippi from the waters of the Missouri river, and on or near the route as it had been surveyed in range fourteen, in said county, previous to the defendant subscribing to the capital stock of said railroad company as aforesaid.” The petition then avers that previous to the 22d December, 1855, the said company permanently located the route of the road through Macon county, on the dividing ridge which separates the waters of the Mississippi river from the waters of the Missouri river, and on or near the route, as it had been surveyed in range fourteen, in said county, previous to defendant’s subscribing to the capital stock of said railroad company as aforesaid; and that by thus permanently locating said road as above stated, the condition on which the stock was subscribed was performed. It is then averred that the money remains unpaid. The petition was demurred to, and the demurrer.having been sustained the cause is brought to this court by writ of error.

The question for our consideration involves the construction of the subscription paper, the terms of which are set out in the petition as above given, and whether the actual construction of the road Was a condition precedent to the payment of the subscription.

We think the contract, by a fair and reasonable interpretation, means that when the road is permanently located the stock becomes payable, and that when this is done the company has done all that is necessary to give them a right to demand it. This view better accords with the sense which common usage has annexed to the terms of the instrument, with the object of the subscription, and the nature of the'enterprise. The condition is that “ the road passes through Macon county, on the dividing ridge” designated in the subscription paper ; and these terms are to be understood and interpreted according to the subject matter to which they relate. They are here used evidently to designate the place where the road shall run or where the route or line of the road is to pass, and are equivalent to the expression “provided the road runs or is located through Macon county.” An example of the sense in which the words of the subscription are employed, is found in the charter of the company, where it speaks of the road as passing through the lands of a certain class of persons. That the location of the road merely was what the parties had in view when fixing the condition of the subscription is still more palpable from a little further attention to the terms os phraseology employed to designate it, describing it with a degree of minuteness by reference to natural features of the country, which clearly show the route of the road to have been in the minds of the parties at the time.

But taking into consideration the objects of the subscription, the magnitude of the undertaking, and the' circumstances that the parties must have had in view at the time, and interpreting the instrument with reference to these, we think no doubt can be entertained as to its real intent and meaning, or as to the sense in which it must have been understood by the parties. The stock subscribed was for the purpose of building the road, and was the means by which it was to be accomplished. For this purpose it must be payable as the work progresses, and it would be unreasonable to suppose that the company intended to deprive itself of the power to make the subscriptions available for the very object for which they were made, and whenever its necessities required. On the other hand, it would seem equally unreasonable that, if the subscribers intended to make the construction of the road a condition precedent to the payment of stock, they should have omitted the most obvious and appropriate words to express such intent; for there is nothing whatever said in the instrument about constructing, building or completing the road; nor is there any equivalent expression.

The case of McMillan v. Mays. & Lex. Railroad Co., 15 B. Monr. 234, is analagous to this, where the question involved was the construction of a paper similar to that under consideration. The suit was to recover ten shares of stock subscribed by the defendant with a promise “ to pay fifty dollars on each share so subscribed in such instalments and at such times and places as may be required by the board of directors of said company, upon condition that said road shall be so located and constructed as to make the town of Carlisle a point in said road; otherwise the subscription shall be null and yoid.” The defence there was, as it is here, that the location and construction of the road were conditions precedent, and that both were to be performed before payment of the subscription could be required. But the court did not so decide. The construction of the road and payment of the stock were held to be concurrent acts, and that the entire construction of the road was not understood or intended by the parties to be a precedent condition to the payment of the stock. The proper interpretation of the undertaking, say the court, is, that the place and not the extent of the construction of the road, was evidently referred to in this stipulation. The stock was to be paid if the road was so constructed as to make the town of Carlisle a point, not when the construction of the road should be completed. If, in that case, the payment of stock and the construction of the road were concurrent acts, a fortiori they would seem to be in the case at bar, for in that the instrument mentioned expressly the construction of the road; in this, no such terms were used.

The judgment will be reversed and remanded ;

the other judges concurring.


author: NaptoN, Judge,

text:
    Brown, Defendant in Error, v. Rice, Plaintiff in Error.

      1. To constitute an agreement there must be the assent of the promissee; a mere promise on one side only is not sufficient; there must be mutuality of obligation.

      Error to Cole Circuit Court.

    This was an action originally commenced before a justice of the peace upon the following accountSamuel 0. Rice, to Richard J. Brown, Dr. To amount which the said Rice, in January, 1859, promised to pay upon the said Brown’s leaving the Barton farm, $23.” At the trial in the circuit court the defendant asked the court to instruct as follows: “3. Although Rice may have offered Brown a twenty-three dollar note to leave the Barton farm by a certain day, if Brown failed at the time to accept the offer, Brown is not entitled to recover from Rice on this offer unless Rice gave him a certain time to accept the offer, and Brown within the time notified Rice of such acceptance.” The court refused so to instruct.

      Lay Sf Batte, for plaintiff in error.
    I. The court erred in instructing as requested by plaintiff, also in refusing the instructions asked by defendant. Mutual consent is necessary to the creation of a contract.
    White, for defendant in error.
   NaptoN, Judge,

delivered the opinion of the court.

The third instruction asked by the defendant in this case, or something equivalent thereto, should, we think, have beeii] given to the jury. There was certainly evidence from which a jury might have come to the conclusion that Rice’s offer to give him his note for twenty-three dollars, if Brown would leave the Barton farm on a day named, was a mere promise, not a contract. To convert a promise into a contract, there must be the assent of the promisee, and until that is given the promiser may retract. The evidence was that Brown did not accede to the defendant’s proposition, but asked for time to consider it. Whether time was given, and within the period designated the plaintiff closed the contract, was a matter for the jury. If Brown was not bounpl, neither was Rice. But this view of the case was not left' to the jury.

Judgment reversed and case remanded;

the other judges concur.


author: Scott, Judge,

text:
    Flowers, Defendant in Error, v. Helm et al., Plaintiffs in Error.
    1. A party can not complain of an instruction giren at his own instance.
    2. Declarations with, respect to partnership transactions by one partner are not evidence against the other partners unless made during the existence of the partnership.

      Error to Carrol Circuit Court.

    It is deemed unnecessary to set forth the facts more fully than they are stated in the opinion of the court.

      Hwris, for plaintiffs in error.
    I. The court should have sustained the motion asking the court to instruct the jury to retire and make up their verdict respecting the liability of two of the defendants, James and Simon Helm. (26 Mo. 586; Sess. Acts, 1857, p. 181.) The declarations made by Jacob Helm were not evidence as against the others. They were made after the dissolution of the partnership. (23 Mo. 185; 27 Mo. 553.) The instructions given were erroneous. The court erred in refusing the instructions.

      Troxell Sf Ray, for defendant in error.
    I. The court properly overruled the motion made by the defendants. The court committed no error in giving or re fusing instructions.'
   Scott, Judge,

delivered the opinion of the court.

As there is a difference between the record as it appears before us and the statement of the case as made by counsel, we must of course be governed by the record as it is written. The instruction of which most complaint is made by the defendants it appears was given on motion of the defendants themselves. It is numbered five, and is to the effect that the declarations of Jacob Helm are to be regarded by the jury as evidence against himself only, unless the jury find that he and the other defendants were partners; and if they were partners, then such declarations were, to be regarded as evidence against the other partners so far as they related to the partnership transactions. This instruction is too loose, as it fails to require that the declarations should have been made during the existence of the partnership. But how can its effect be obviated, when it appears to have been given at the instance of those who are now complaining of it ?

There were two theories of this case; one, that each of the parties sold or authorized the sale of his share separately ; the other, that there was a joint sale for the benefit of all. Taking into consideration the pleadings and the evidence in the cause, we can not say that the court below exercised its discretion improperly in refusing to permit the jury to pass on the case of two of the defendants in order that they might be made witnesses.

With the concurrence of the other judges, the judgment will be affirmed.


author: Ewing, Judge,

text:
    Proffitt et al., Appellants, v. Henderson, Respondent.
    1. Waste is a lasting damage to the reversion caused by the destruction, by the tenant for life or years, of such things on the land as are not included in its temporary profits.
    2. The cutting of timber may be waste although necessary to the profitable enjoyment of the land; it may be waste although the land is valuable for timber only.

      Appeal from Randolph Circuit Court.

    This was an action by two of the children of David Prof-fitt, deceased, against John H. Henderson. Plaintiffs alleges in their petition that David Proffitt at his death was seized of a certain tract of two hundred acres; that by his last will he devised said land to his widow Mary Proffitt for life, and at her death to his children John, Lucy, Elizabeth and Susan; that said Mary Proffitt, the widow, conveyed her interest in said land to defendant Henderson for fifty dollars; that Lncy Proffitt conveyed her interest also to defendant; and that this portion, one-fourth, has been allotted in partition to defendant ; that on the remaining one hundred and fifty acres defendant, on, &c., and since, <fcc., committed waste and injury to said land, by cutting and carrying away timber, to the amount of six hundred dollars; that the value of said land was diminished by having said timber cut and carried away as aforesaid to the amount of six hundred dollars ; that all the valuable rail timber on said land, and a large quantity of fire-wood, were wrongfully and unlawfully cut and carried away from said land by the defendant; that by said waste and injury plaintiffs were damaged to the amount of four hundred dollars, which is two-thirds of the damages sustained to those who own the remaining interest in said land by the waste and injury aforesaid; that the value of the rail timber and fire-wood cut and carried away unlawfully and wrongfully by defendant is three hundred dollars; that plaintiffs are injured by losing the value of the timber thus cut and carried away to the amount of two hundred dollars, which is two-thirds of the damage sustained as aforesaid; that they are damaged by the diminution in value of said land by the acts and doings above stated to the amount of four hundred dollars, and by losing the value of the timber as aforesaid to the amount of two hundred dollars; that plaintiffs are each entitled to one-third of the tract of one hundred and fifty acres at the death of Mary Proffitt. Plaintiffs prayed judgment for six hundred dollars, and that defendant be enjoined from cutting timber.
    The court sustained a demurrer to this petition. This constitutes the error complained of.

      Meed Sf Denny, for appellants.
    I. The court erred in sustaining the demurrer. (See Sedgw. on Dam. § 139, 146; 4 Ohio, State, 101; 4 Burr, 2141.)

      Burckhartt, for respondent.
    I. The petition does not state that the cutting of the timber was not necessary for the profitable enjoyement of the land. The fact that the land was injured was not sufficient. The tenant for life has a right to ..enjoy the land although it may be thereby injured. There is no allegation that the cutting of the timber was not made to clear the land for cultivation. The law of waste, as recognized in England, does not apply. The land was devised to Mary Proffitt for life for her support. She had a right to use it to the best advantage for that purpose. (8 Yeats, 261; 2 Hayw. 110 ; Hill on Real Pro. 263.) The petition does not show that the land was valuable for any purpose except its timber. (1 Harr. 438; 2 N. J. 521; 4 Watts, 463.)
   Ewing, Judge,

delivered the opinion of the court.

Waste is defined to be the destruction of such things on the land by a tenant for life or years as are not included in its temporary profits. In other words, it consists in such acts as tend to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance. (1 Hill, on Real Prop. 261.) The American doctrine on the subject of waste, observes Chancellor Kent, is somewhat varied from the English law, and is more enlarged and better accommodated to the circumstances of a new and growing country. In England the destruction of timber carries with it the idea of a permanent injury to the estate, as timber is scarce, and forest trees are planted for useful as well as ornamental purposes, and are too valuable to permit the timber to be unnecessarily destroyed. It is not waste in this country to convert arable land into meadow, nor vice versa ; nor is it waste to clear land by a tenant for life. But there is a due and reasonable medium to be' observed according to the custom of farmers. To cut down all the timber on a tract of land and sell it would be waste because it would be detrimental to the inheritance. (McCullough v. Irvine’s Ex’rs, 1 Harris, 446.) But cutting timber and clearing land may, so far from being waste, often enhance the value of the inheritance; and it is only when there is lasting damage to the reversion-ary interest, or its value has been lessened, that the tenant, in such casej is liable for waste.

In Davis v. Gillman, 5 Ired. Eq. 311, the doctrine is stated by Chief Justice Ruffin thus: that, as the state of the country now is, a tenant for life of land entirely wild might clear as much of it for cultivation as a prudent owner of the fee would; and might sell the timber that grew on that part of the land. Clearing for cultivation, he says, has, according to the decisions, peculiar claims for protection, and a sale of the timber from the field cleared may be justly made in compensation for clearing and bringing it into cultivation. But it seems altogether unjust that a particular tenant should take off the timber without any adequate compensation to the estate for the loss of it; for he takes 'in that case not the product of the estate arising in his own time, but he takes that which nature has been elaborating through ages, being a part of the inheritance itself, and that, too, which imparts to it its chief value.

The rule of pleading in such actions as this, is that if the plaintiff declare as reversioner for an injury done to his reversion, the declaration must allege it to have been done to the damage of his reversion, or must state an injury of such a permanent nature as to be necessarily injurious to his reversion. (Jackson v. Peshed, 1 M. & S. 221; Potts v. Clark, 1 Spencer, 542; 2 Dutcher, 266.) Are the acts complained of as wrongful of such a nature as necessarily to result in an injury to the reversionary interest ? The petition charges that the defendant cut down and carried away all the valuable rail timber, and that the value of the timber so carried away is three hundred dollars, and that the land in consequence thereof is diminished in value to the amount of sis hundred dollars.

It is objected that the petition fails to show that the cutting of the timber was not necessary to the profitable enjoyment of the land, or that it was not done for the purpose of cultivation, and that it is not alleged that the land is valuable for any purpose except the timber. As it respects the first of these objections to the petition, it is conceived that the profitable enjoyment of the land is not the proper criterion to determine the question of waste. There may be waste where there is such profitable enjoyment, and there may be profitable enjoyment without waste. The cutting of the timber may have been necessary to the profitable enjoyment of the land according to the tenant’s standard of profit, and yet have been a great outrage upon the rights of the reversioner. It may have been more profitable to the tenant to have cut down and taken away the valuable timber, as the petition alleges, than to have used it in clearing the land or some portion of it. As to the next objection that the petition is defective in not alleging that the timber was not cut for the purpose of cultivation, we think it clearly appears, though not so expressly stated, that it was not for this purpose. The defendant had purchased the interest of one of the owners in fee, being One-fourth of the tract of two hundred acres, which, under an order of partition, had been set-off to him, and thus merged his life estate as to that part in the fee, and upon the remaining portion of said tract, one hundred and fifty acres, the waste is alleged to have been committed. And the averment that all the valuable rail timber was cut down and carried away clearly enough negatives the idea of its having been used in clearing the land or for any other purpose on the premises. The other objection, that there is no allegation that the land was not valuable for any other purpose except timber, is not well taken; for if the land is valuable for the timber only, it would surely be waste for a tenant to cut and carry away all the timber of any value. If useful for the timber alone, the tenant must in that case, as in all others, respect the rights of the owner of the inheritance, and his enjoyment of it must be regulated accordingly. The other judges concurring, the judgment will be reversed and the cause remanded.


text:
    The State, Appellant, v. Cowan, Respondent.
    1. The general assembly has power under the constitution to create municipal corporations and to confer upon them the authority to pass police regulations and to punish persons for their violation.
    2. If a municipal corporation created by the law of this state should take cognizance of an act made an offence by its ordinances and punish it, the person thus punished can not be subjected again, under the general law of the state, to punishment for the same act or offence.
    3. The general assembly has power under the constitution to enact that, for offences of the grade of misdemeanors, persons may be proceeded against criminally either by indictment or by information.
    4. Although by the general law of the state persons charged with certain offences of the grade of misdemeanors must be proceeded against criminally by indictment, yet the general assembly may grant to municipal corporations the power to ordain that persons charged with such offences may be proceeded against criminally by information. The general state law and the municipal ordinance may have a concurrent operation.

      Appeal from Polk Circuit Court.

    This was an indictment founded upon the fifty-fourth section of the eighth article of the act concerning crimes and punishments. The sixth and seventh sections of the act incorporating the town of Bolivar are as follows: “ Sec. 6. The board of trustees shall have power to pass by-laws and ordinances, to open and form public squares, avenues, drains and sewers, and to keep the same clean and in order; to provide for the general health of its inhabitants ; to restrain and prohibit dram-shops, tippling houses, gambling and gaming houses, bawdy houses and houses of ill-fame, and other disorderly houses, within the limits of said town ; to tax and license circus shows, theatricals and other amusements ; to restrain and prevent the meeting of slaves; to establish night watches and patrols; to prevent the firing of fire-arms and other explosive compounds, and to prohibit furious and other unnecessary riding of any horse or other animal in said town, or such part thereof as they may think proper; to impose fines and appropriate fines, forfeitures and penalties for breach of their ordinances, for the regulation of the police of said town as they shall deem necessary, not repugnant or contrary to the laws of the land. Sec. 7. The trustees shall have power to pass all ordinances which may be necessary to carry any provision of this act into effect, and also to pass any ordinance usual or necessary for the well-being of the town.” (Sess. Acts, 1855, Adj. Sess. p. 286.)
    The following is the ordinance set forth in the plea in bar: “ Ordinance 14. Be it ordained by the board of trustees of the town of Bolivar, If any person or persons shall ride fu-furiously through the streets, alleys, or .around the public square, by galloping or running any horse or other animal, or shall drive any vehicle in a furious or unbecoming manner within the limits of the town of Bolivar, shall be deemed guilty of a violation of this ordinance, and such person or persons shall be fined in a sum of not less than two nor more than five dollars, or be imprisoned not more than five days, or by both such fine and imprisonment, together with costs for each offence.”

      Knott, (attorney general,) for the State:
    I. This cause was submitted to the court upon a brief filed in behalf of the State at a former term by Attorney General Ewing, in which it was contended that the demurrer was improperly overruled; that the plea in bar was defective; that it did not show that the town authorities had jurisdiction ; that no affidavit charging an offence, nor any judgment or proceedings of the justice are set out in the plea; no organization of the town authorities is averred. The powers conferred by the act of incorporation in relation to police are subordinate to the power of the legislature over the same subject, and that power has been exercised. The act of incorporation confers no exclusive jurisdiction on the town authorities over the offence for which defendant was indicted. (Sess. Acts, 1855, Adj. Sess. 286 ; Harmon v. State, 11 Mo. 527 , St. Louis v. Bentz, 11 Mo. 61; Baldwin v. Green, 10 Mo. 410; City of St. Louis v. Cafferatta, 24 Mo. 96; 8 Ala. 516; 6 Ala. 902; 1 Wend. 261; 12 B. Monr. 25; 14 Ala. 403.)
   Scott, Judge,

delivered tlie opinion of tbe court.

In the year 1855 the town of Bolivar, in Polk county, was incorporated among others, with the power to regulate its police. In pursuance to this authority the town prohibited, by an ordinance, furious riding through the streets, alleys, or around the public square, under a penalty of not less than two, nor more than five dollars, or imprisonment for not more than three days, or by both such fine and imprisonment. The defendant Cowan violated this ordinance, and. was fined five dollars therefor, which he paid and was discharged. He was afterwards indicted by the grand jury of Polk county for the same act under the law of the state prohibiting the running of horses at great speed upon the public roads and highways. To this indictment he pleaded in abatement his former conviction under the ordinance above mentioned. To this plea there was a demurrer, and the demurrer being overruled, the State appealed.

We do not see how any question can arise in this case as to the jurisdiction of the corporate authorities over this offence, if it is competent to the legislature to create municipal corporations and to confer on them the power by ordinance to regulate their police. Surely the right to exercise such a power can not be seriously questioned. If this corporation thus established by law takes cognizance of an act made an offence by its ordinances, and punishes it, the person thus punished can not be subjected to punishment again for the same act or offence. The constitution forbids that a person shall be twice punished for the same offence. To hold that a party can be prosecuted for an act under the state laws after he has been punished for the same act by the municipal corporation within whose limits the act was done, would be to overthrow the power of the general assembly to create corporations to aid in the management of the affairs of the state. For a power in the state to'punish, after a punishment had been inflicted by the corporate authorities, could only find a support in the assumption that all the proceedings on. the part of the corporation were null and void. The circumstance that the municipal authorities have not exclusive jurisdiction over the acts which constitute offences within their limits does not affect the question. It is enough that their jurisdiction is not excluded. If it exists, although it may be concurrent, if it is exercised it is valid and binding, so long as it is a constitutional principle, that no man may be punished twice for the same offence.

The exercise of concurrent legislative and judicial powers over the same subjects within the same limits may sometimes lead to conflicts and embarrassments; but there is more safety to the community in two conservators of the peace than in one. Besides, there are so many municipal corporations whose powers of government are so feebly executed that it would be unsafe to confide to them exclusive powers of making and executing laws within their limits on the subjects within their jurisdiction. This, however, is a matter within the control of the general assembly, and may be regulated according to the exigencies of the various municipalities in the state. (State v. Simonds, 3 Mo. 413; State v. Payne, 4 Mo. 376; Baldwin v. Greene, 10 Mo. 410; Harrison v. The State, 9 Mo. 526.) There is nothing in the case of the City of St. Louis v. Cafferatta, 24 Mo. 94, which conflicts with the views above expressed, but, on the contrary, the tone of the opinion there given is in strict harmony with them. Nor is there any intimation or expression in that opinion from which it may be inferred that a person, punished under an ordinance for an offence, may for the same offence be punished in the state courts. There was no such point made, nor did the facts warrant any expression of opinion in relation to it. That case merely'decided that a certain ordinance of the city was not repugnant to a general law of the state.

It may be argued that the ordinance in this case is repugnant to that provision in the bill of rights which declares that no person can, for an indictable offence, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger, or by leave of the court, for oppression or misdemeanor in office; that the offence prohibited by the ordinance is indictable under the statute laws of this state ; and that the legislature could not authorize a municipal corporation to punish it on information, but only by indictment, otherwise the constitutional provision might be evaded. If an offence, which by the statute law is punished in such a way, or is of such a grade, that the offender can not be proceeded against but by indictment, is made by a municipal corporation punishable in a manner, or reduced to a grade, that, under the constitution, the offender might be prosecuted on information, then he has no cause of complaint against the ordinance under which he is tried. It is a question for the state, and affects her alone, how far she will permit municipal corporations, by their ordinances, to mitigate the punishments which she inflicts by her general laws; but if she will allow it, there can be no valid objection against such a course on the part of the offender, as the punishment, which he undergoes at the hands of the municipal body, exempts him from prosecution under the state laws. In such a ease the offender is in no worse situation than if there was no state law in force on the subject. Suffering only such a punishment and in such a way as may be imposed by the constitution, he is not affected by the existence of the state law, whose operation is suspended as to him by the punishment which he undergoes by virtue of the ordinance of the municipal body. If, then, as we have before endeavored to show, the corporation may substitute its ordinances for the law of the state, and if the state can constitutionally make the offence punishable by information, there can be no force in this objection founded on the constitution, as the offence is not an indictable one under thejudinance.

The meaning of the words “indictable offence” in the clause of the constitution above cited was a long time a subject of discussion in this state. But the case of the State v. Ledford, 3 Mo. 73, which has been long acquiesced in, must be considered as having settled the doctrine that, as to misdemeanors, the general assembly may make them punishable either by indictment or information. This is the obvious result of that case, and though the reason given may not be satisfactory, yet there are both reason and the opinion of others in support of it. The point was not made in the above cited cases of the State v. Simonds and the State v. Payne, but they can only be sustained on the assumption that it was competent to the legislature, through the instrumentality of municipal bodies, to make misdemeanors punishable by information. One reason in support of this construction is, that the clause itself allows misdemeanors of a high grade and severely punished, and which were indictable by the common law, though also punishable on information, to be prosecuted on an information. If misdemeanors of a high grade can be punished under an information, there is no reason why those of a minor grade and less severely punished should not be punished in the same way. Misdemeanors might, by the old common law, which was always a favorite of the people, be punished by way of information, while Magna Charta forbade that felonies should be prosecuted in any other manner than by indictment or presentment. (Story on the Constitution, secs. 1784, 1786; 4 Black. 409.) There is a provision in the bill of rights of the state of Tennessee, which declares that no one shall be put to answer any criminal charge except by presentment or indictment. There it was held, that these words did not prohibit the legislature from dispensing with those modes of prosecution in cases of misdemeanors. This conclusion was arrived at by examination of the principles of the old common law in relation to the prosecution of offenders. (Maginnis v. The State, 9 Hump. 43.) A careful perusal of the case of Jefferson City v. Coatmere, 9 Mo. 683, will satisfy any one that it was not decided on a ground which conflicts with this opinion. The foundation of the judgment was, that there was no authority conferred by the charter on the city to pass the ordinance under which Coat-mere was convicted. Had there been such authority, we must come to the conclusion that the judgment of the court would hare been otherwise.

Judgment affirmed;

Judge Napton concurring; Judge Ewing not sitting, haring been counsel for the State.


text:
    The State, Appellant, v. Hambleton, Respondent.
    1. State v. Cowan, ante, p. 330, affirmed.

      Appeal from Polk Circuit Court.

   Scott, Judge,

delivered the opinion of the court.

For my opinion in this case, see my opinion filed in the case of the State of Missouri v. Cowan, decided at this term. Judgment affirmed;

Judge Ewing not sitting, haring been counsel for the State.


text:
    The State, Appellant, v. Tilton, Respondnt.
    1. The State v. Cowan, ante, p. 330, affirmed.

      Appeal from Polk Circuit Court.

    Knott, (attorney general,) for the State.
   Scott, Judge,

delivered the opinion of the court.

For my opinion in this case, see the opinion filed in the case of the State of Missouri v. Cowan, decided at this term.

Judge Ewing not sitting, haring been counsel for the State.


author: Napton, Judge,

text:
    Hannibal and St. Joseph Railroad Company, Plaintiff in Error, v. Rowland et al., Defendants in Error.
    1. Where, in proceedings instituted in behalf of the Hannibal and St. Joseph Railroad Company, under its charter, to obtain a condemnation of land, the report of a set of commissioners or viewers is set aside, the judge in ordering a review must appoint a new set of viewers. (Sess. Acts, 1857, p. 250, §9.)
    2. Where the judge, upon the making of the report of the viewers, sets the same aside on the ground that the damages had not been estimated in the mode required by the law, the award of damages being conditional, and sends back the same viewers with instructions as to the rule in assessing damages, this would not be a review within the meaning of the charter, and would not require the appointment of a new set of viewers, nor would it come within that provision of the charter that provides that “not more than one review shall be granted to the same person.”

      Error to Macon Circuit Court.

    The facts are sufficiently set forth in the opinion of the court.

      Lamb Sf Lakenan, for plaintiff in error.
    I. The courts will take cognizance of cases like this brought up by certiorari. (27 Mo. 322.) These proceedings are before the judge ex officio, not before the court, either in or out of term. The judge had no right to order four views of the land, nor to appoint the same viewers twice, or to order them to make a second report. The first report of Morrow, Gipson & Morrow should have been permitted to stand. The right to a review was exhausted on each side. In their second report the viewers were misled by the instructions of the court. The judge had no right to instruct them. The instructions were wrong.

      Prewitt, for defendants in error.
    I. A writ of error does not lie in this case. (27 Mo. 327.) The first report made by Morrow, Gipson & Morrow was illegal. No judgment could have been entered upon it. All that could be done was to have the reviewers make a new .report. The judge had the right to instruct the viewers. Whether the judge had or not, the instructions could not have done harm. (See 25 Mo. 544.)
   Napton, Judge,

delivered the opinion of the court.

The only question in this case arises out of the construction of the ninth section of the act to incorporate the Louisiana and Columbia Railroad, which act was subsequently adopted as the charter of the Hannibal and St. Joseph Railroad Company.

Where the company and the proprietor of the land through which the road is proposed to be run can not agree upon the damages, the circuit judge of the county where the land lies is required, upon the application of the company, to appoint three discreet citizens to go upon the land and report to him the damages. Upon objections being filed to the report within five days, the'judge is authorized, if he is satisfied that the objections are “ sufficient and legal,” to appoint a new board of commissioners or viewers, or he may enter judgment upon the first report. The only restriction upon the power of the judge in this matter is, that “ not more than one review shall be granted to the same party.” . (Sess. Acts, 1837, p. 250.)

In this case, upon the application of the company and due notice to the proprietors, the judge appointed three citizens— Pool, Walker and Reynolds — to examine the land and report the damages. These commissioners reported the damages to the proprietors to be one hundred and fifty dollars. At the instance of the proprietors, Rowland and Clay, who were dissatisfied with the damages, the judge appointed three other citizens — Fox, Smith and Winn — to review the road and assess the damages, and this second board reported the damages at seven hundred dollars. .The company being dissatisfied with this report, the judge, at their instance, appointed a third board, consisting of Morrow, Gibson and Dysart, and a fourth person named to act in the event of the inability or failure of either of the persons named. This board reported that no damages would be done the proprietors by the construction of the road, provided the company would make three cattle-guards wherever said proprietors-would designate, and two crossings — one near the buildings and the other at a place to be designated by the proprietors. This report was set aside, and the court sent the same commissioners with instructions as to the rule of damages, and they returned reporting the damages at seven hundred dollars, and this report was confirmed.

The company insist that upon the coming in of the third report by Morrow, Gibson and Morrow (substituted for Dy-sart) the power of the judge was exhausted, and therefore they moved for a judgment upon the report of the last board.

The act seems to leave it very much to the discretion of the judge to determine upon granting a review or refusing one. The expressions used by the act to designate the character of objections to a report which will authorize the judge to set it aside and appoint a new set of commissioners, are very vague and indefinite. The objections must be “ sufficient and legal,” and this is all the description of them given in the act. It is plain, however, that the review spoken of in the act is in all cases to be made by a new set of commissioners. The language is “ he shall order a review by three other viewers, who shall proceed in the same manner as hereinbefore provided, but not more than one review shall be granted to the same person.”

"When the circuit judge for Macon county, then, sent back the commissioners, Morrow, Gibson and Morrow, to make another report, it was not a review within the meaning of this law. The report first made by these commissioners was not deemed to be in conformity to the law; the damages were not in fact estimated in the mode which the' law required. The award was a conditional one, which could only be made effectual by an agreement between the parties. The commissioners were therefore sent back to report an estimate of the damages in money. This was not granting to the proprietors a second review, but merely seeing that the report of the commissioners appointed at the instance of the Railroad Company was in conformity to law.

■ The judgment of the circuit court is affirmed;

the other judges concur.


text:
    Irvin, Respondent, v. Riddlesburger, Appellant.
    1. A. sued B. to recover the value of carpentry work done for the latter; B. in his answer set up that the alleged work was done in so unworkmanlike a manner as to be valueless, and claimed by way of counter claim the sum of six hundred and four dollars that he had advanced to A. during the progress of the work, and that was allowed as a credit in the account filed with plaintilf’s petition; to this counter claim no reply was filed. The court, at B.’s instance, instructed the jury that if the six hundred and four dollars advanced by B. was more than the work done was worth, they should “find for defendant whatever amount they may consider said work worth less than said sum.” The jury found for plaintiff the balance claimed to be due him. Held, that the defendant was not, under the circumstances, aggrieved by the refusal of the court to instruct the jury that the allegations of the answer with respect to the set-off or counter claim were admitted by the pleadings to be true, there being no reply thereto.
    2. The supreme court will not grant new trials on the ground that the verdicts of juries are against the weight of evidence.

      Appeal from, Kansas City Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Hyland 8p Son, Chrisman Sf Comingo, for appellant.

      Smith Sf Bouton, for respondent.
   Napton, Judge,

delivered the opinion of the court.

Thére are two grounds upon which it has been urged that this judgment ought to be reversed. The first is, that the court refused to give the third instruction asked by the defendant, which, in substance, declared to the jury that, as the defendant’s counter claim for six hundred and four dollars was not replied to, they would consider it as admitted and render their verdict acecordingly. The other ground relied on is that the verdict is against the evidence.

In relation to the first point, it seems to us that a concession of the propriety of this instruction would not lead to a reversal of the judgment. Admitting that the defendant’s answer contained new matter constituting a counter claim, within the meaning of the fifteenth section of the sixth article of the practice act, (R. C. 1855, p. 1238,) and that the plaintiff’s failure to reply brought the case within the sixteenth section of the same article, yet it could certainly tend to no good purpose, under the circumstances of this case, to send the case back to have this error corrected. The jury passed upon the counter claim under instructions from the court and rejected it. The case was tried precisely as though a replication had been put in.

The plaintiff’s bill of particulars gave the defendant credit for the six hundred and four dollars which he claimed to have advanced on the work as it progressed, and the jury allowed the same as a credit; but as they allowed the bill, after deducting the credit, they of course found against the counter claim. The counter claim set up that the work was so badly executed by plaintiff that it was worth nothing, and therefore that the six hundred and four dollars advanced ought to be returned. But the jury, under the allegations of plaintiff’s petition and the instructions given at defendant’s request, found that the work was done in a workmanlike manner, and that the prices charged were reasonable. If the case is sent back to have a formal replication filed, which, of course, would have been done on the trial but through inadvertence, we have no right to anticipate any’ different result from that reached before, unless, indeed, the verdict was against the evidence before; and that is another and distinct ground for reversal, and must stand or fall by itself.

The practice of this court in relation to the verdicts of juries, which the circuit courts refuse to set aside, is so well settled that it is needless to refer to the cases. There is nothing in the circumstances of the present case to induce or authorize any relaxation of the rule. The action is brought to recover the amount of a carpenter’s bill for work done and materials furnished, and a jury is the best tribunal to try cases of this kind. The specified ground of complaint in this case shows the folly of any interference on the part of this court in such cases. It is alleged here that there was no evidence to support the four or five items following the first in the bill, amounting to about three hundred and fifty dollars. That these items are for furnishing the timber for the girders, posts, sills, &c., when there was not only no proof that the plaintiff furnished the timber, but it clearly was proved by his own witnesses that the defendant furnished all the materials except nails and weatherboarding. If these items were understood at the trial to mean charges for materials, instead of work done on materials, and the materials were not in fact furnished by plaintiff, it is most remarkable that a fact which could be so easily established should be left in doubt; and if overlooked upon the trial before the jury, it is singular that, upon a motion for a new trial, the failure to prove so large a portion of the claim should have escaped the attention of the court. But we suppose the items referred to are not designed as charges for materials but for some work bestowed on them, probably framing and raising them; and, upon this hypothesis, we find on looking into the testimony that the first witness introduced by the plaintiff proves the charges to have been reasonable and customary. It is true there is no direct proof that tho defendant did this work ; but it was charged and not denied in defendant’s answer. The answer did not deny that the work was done, but admitted it was done; but set up as a defence that it was done in so bungling a manner as to be worth nothing.

There is no ground, therefore, for disturbing this verdict on account of its being against evidence or unsupported by evidence. The jury and court before whom this case was tried understood the facts much better than we do ; but as the case has been sometime before the court, and the point lias been urged with great apparent confidence by the appellant, we have looked with more than ordinary care into the bill of exceptions to see if there was, as alleged, a total failure of evidence, and the result has been, as stated, that we do not feel warranted in disturbing the verdict upon any of the grounds suggested.

The judgment is affirmed;

the other judges concurring.


text:
    Campbell, by his next friend, Defendant in Error, v. Garton, Plaintiff in Error.
    ___ 1. Where a judgment by default has been regularly rendered, a motion to set the same aside should be accompanied by an affidavit showing a meritorious defence and that there has been- due diligence.
    2. A petition for a review will not lie under section 13 of article 12 of the act concerning practice in civil cases (R. C. 1855, p. 1280, § 13), if the defendant has been regularly summoned as required by law, or has appeared to the suit, and interlocutory and final judgment shall have regularly been rendered against him.

      Error to Pettis Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Ford and Field, for plaintiff in error.
    The petition should have been granted. The defendant never appeared to the action. The petition sets forth all the facts required by the statute. The motion to set aside the interlocutory judgment was not an appearance. There was no negligence on the part of defendant. In addition to the facts set forth as required by the sixteenth section of the twelfth article, the petition embraces other good cause for setting aside the judgment, the discovery of new and material evidence. (Sto. Eq. PL § 404, 413 ; 2 Smith, Oh. Pr. 50, 60 ; Mitf. Ch. Pr. 127 ; Barton Eq. 215 ; 4 Hen. & Munf. 242 ; 2 id. 589 ; 2 J. J. Marsh. 492; 8 B. Monr. 343.)

      Welch Sp Hicks, for defendant in error.

      I. The court committed no error in dismissing the petition of review.
   Ewing, Judge,

delivered the opinion of the court.

Defendant in error sued plaintiff in error in ejectment, in which there was personal service on the defendant, and judgment by default rendered at the November term, 1857, which was made final at the next regular term thereafter. On the same day plaintiff in error filed his motion to set aside the judgment by default and for leave to file an answer, which was overruled. The motion was based on an alleged mistake or misunderstanding of counsel, to whom plaintiff in error had spoken, and who failed to file an answer. The motion was not supported by affidavit. At the April term, 1858, the judgment having been made final, on the 8th of September, 1859, plaintiff in error filed in the clerk’s office of said court a petition asking the court to set aside the judgment by default and the final judgment, and to permit him to answer said petition. At the next term, November, 1859, the defendant in error filed his answer denying that plaintiff was entitled to the relief sought by his petition. This answer, on motion of the plaintiff in error, was stricken out. The petition for a review was then overruled, and the court refused to set aside the judgment, to which opinion of the court exceptions were saved, and the cause is before us on a writ of error.

The petition for a review is based upon the following grounds : First, that the petitioner never appeared to the action, nor was he made a party as the representative of one who did appear to the action; second, he was guilty of no negligence in not appearing to said suit, and that since the final judgment was rendered he has obtained the patent from the United States to the land in controversy; that he was the legal owner of the land; and that he had a good defence to the action. This was not a case for the proceeding by a petition for review, and the plaintiff in error misconceived his remedy in resorting to it. A petition for review is tbe appropriate remedy where an interlocutory judgment shall be made and a final judgment is entered thereon against any defendant who shall not have been summoned as required by this act, or who shall not have appeared to the suit, or have been made a party as the representative of one who shall have been summoned or appeared. (R. C. 1855, p. 1280, art. 12, § 18.) The record shows that the plaintiff in error, defendant in the ejectment suit, was duly summoned as required by law; and it also shows that he appeared to the action. But having been summoned was sufficient; and having failed to answer, his proper course was by motion to set aside the interlocutory judgment. (R. 0. 1855, p. 1278, § 4, 5.) Such a motion, it is true, was filed and overruled, and from the judgment of the court in overruling the motion the plaintiff could have appealed if the court had committed error. The motion, however, (which was not sustained by affidavit,) discloses no merits whatever. The only ground alleged is, that the defendant had spoken to and employed an attorney to file an answer and defend said suit, and that said counsel, by misunderstanding or mistake, did not file any answer. It does not appear from this motion that there was any defence to the action, or that the defendant would have been benefited had he been permitted to file an answer. In all cases of this kind there should be an affidavit of merits and that there has been due diligence. (7 Mo. 6, 27; 8 Mo. 688; 3 Mo. 263; 10 Mo. 394; 11 Mo. 193.)

The judgment is affirmed;

Judge Scott concurring. Judge Napton, having been of counsel, did not sit in this case.


text:
    Grinnan, Respondent, v. Mockbee, Appellant.
    1. "Where a party to a suit seeks to read in evidence a deposition taken in the cause on the ground that the witness resides at a greater distance than forty miles from the place of trial, he must prove that fact; the statement of the deponent in his deposition is not admissible in evidence for that purpose.

      Appeal from Jackson Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Hovey and Ryland, for appellant.
    I. The deposition of Mockbee was improperly read in evidence.

      Chrisman 8f Comingo, for respondent.
    I. The testimony of the defendant Mockbee shows conclusively that when the deposition was taken he was beyond the jurisdiction of the court. The presumption is that he continued beyond the court’s jurisdiction. It devolved upon the defendant to show a different place of residence. (10 Barb. 175.) The testimony offered by defendant is insufficient to show that he had moved within the jurisdiction of the court. It was a surprise upon plaintiff. It was a question of fact to be determined by the weight of testimony. The decision of the court ought not to be disturbed. (9 Mo. 875; 13 Mo. 308 ; 15 Mo. 400.)
   Ewing, Judge,

delivered the opinion of the court.

The only question for our consideration is the action of the circuit court in permitting the deposition of Mockbee to be read in evidence.

The bill of exceptions shows that when the respondent offered to read the deposition, the appellant objected on the ground that the deponent was then living within forty miles from the place of trial, and that, upon examination of the deposition, it appeared to the court that at the time the same was taken (during the last year) the deponent stated therein that he lived about fifty miles from the place of trial. The court, thereupon, required the appellant to prove that the deponent had changed his residence since taking the deposition, and that he then lived within forty miles of Independence.

When a party relies on a deposition, he must, before he can be permitted to use it as evidence, show all the facts upon which its admissibility depends. Among these is the fact that the deponent is not within forty miles from the place of trial. The onus of proving this, was upon the respondent. There was no evidence, or no competent evidence, as to the distance the deponent lived from the place of trial when his deposition was taken. His own statement in the deposition was not admissible for that purpose. The admissibility of the deposition was the question to be determined, and to look into the deposition for evidence of the facts upon which its admissibility depended was assuming the point to be decided.

The statement of the officer taking the deposition as to the deponent’s place of residence is made prima facie evidence of that fact, and, under some circumstances, the court would take judicial notice that his residence was more than forty miles from the place of trial, but certainly not in such a case as the one before us.

It is deemed unnecessary to notice the testimony of the witness Rice introduced by the appellant. The judgment will be reversed and the cause remanded.


text:
    Bryant et al., Plaintiffs in Error, v. Harding et al., Defendants in Error.
    1.'"Where a judgment hy confession is rendered, under a power of attorney from the debtor, as authorized by the 24th section of the 12th article of the act concerning practice ("B. C. 1855, p. 1283,) the affidavit required of the plaintiff must be made by himself; the attorney in fact or agent of the plaintiff in the confessed judgment can not mate the required affidavit.
    2. Where a judgment is confessed irregularly, other judgment creditors are entitled to have the same set aside on motion.

      Error to Clay Circuit Court.

    On the 27th of April, 1858, one Murray gave James H. Moss a power of attorney to confess a judgment against him in favor of Roger E. Harding, George 0. Kimbrough and Richard F. Toomer. At tlie April term, 1858, of tlie Clay circuit court, a judgment was confessed under this power. The affidavit on the part of the plaintiffs in tlie judgment, Harding, Kimbrough and Toomer, was made by their agent Thomas McCarty. At the same term Edward Y. Bryan and others, alleging that they were judgment creditors of Murray,-moved the court to set aside the judgment by confession on the ground that plaintiffs therein had not made affidavit as required by law. The court overruled the motion.
    Hovey, for plaintiffs in error.
    I. The judgment by confession ought to have been set aside. The plaintiff and not the agent must make the affidavit. (R. C. 1855, p. 1282, § 24.)

      Parsons 8f Edmmds, for defendants in error.
    I. The affidavit was sufficient. It was as valid as if made by the plaintiffs themselves or either of them. The plaintiffs in this motion could not take advantage of any irregularity in the judgment, if any existed, by motion. Their remedy was in the nature of a bill in equity. The motion was properly overruled.
   Ewing, Judge,

delivered the opinion of the court.

The question in this case involves the interpretation of section 24 of article 12 of our practice act, respecting the confession of judgments. Was the agent of the defendants in error authorized to make the affidavit required by the statute in such cases ? The statute authorizes a judgment by confession, for a debt owing upon a note, bond, or bill of exchange, under the power of attorney of the debtor acknowledged as required of deeds of land for their record and filed in the court rendering the judgment at the time of its rendition, together with the note, bond or bill of exchange and the affidavit of the plaintiff that the debt is bona fide, for a fair and valuable consideration after allowing all just credits and set-offs.

The restrictions imposed by the statute were designed to insure good faith and to prevent fraud ; and, although there may be cases in which an agent could make the affidavit advisedly and with as much propriety as the plaintiff himself, yet, in the abuse that would obviously result in others, we find a sufficient reason for not extending the interpretation of the statute beyond the literal import of its terms, and for not inferring an intent unwarranted by their plain sense. It is not pretended that there is any express authority for an agent of the plaintiff to make the affidavit; and it is not perceived how it can be reasonably implied from any thing in the statute. On the contrary, the intent of the legislature would seem not to be susceptible of a clearer expression than is contained in the section quoted, without the use of language expressly negativing such authority. It will be observed that the first clause of the section is very specific as it respects the confession of judgments by the debtor under power of attorney and the manner in which the power is to be authenticated; but when, in the last clause, it provides what is to be done by the creditor, there is nothing whatever said about an agent; thereby showing that, in expressly recognizing the intervention of an agent in the one case and not in the other, it was not intended that the affidavit should be made by another than the plaintiff in propria persona. This view is also sustained, we think, by another provision of the practice act, which expressly permits a pleading to be verified by the affidavit of the party, his agent or attorney. (R. C. 1855, p.-, art. 6, § 20,) which makes the silence of the provision we are considering respecting an agent more significant of the legislative intent.

The proceeding by motion to set aside the judgment was a proper one, and there is nothing in the objection of counsel on this point.

The judgment is reversed;

the other judges concurring.


text:
    Tucker, Plaintiff in Error, v. Tucker et al., Defendants in Error.
    1. A deed of gift of slaves made by a husband in anticipation of death and with a view to defraud his widow of her dower in such slaves will be held void as against the widow.
    2. Where a person, in anticipation of death, and with a view to defraud his widow of her dower, executes, as part of the same transaction, separate deeds of gift of slaves to his children, a petition in a suit instituted by the widow against all the grantees in said deeds to obtain an annulment thereof and an assignment of dower will not be bad for multifariousness because the defendants have separate and distinct interests under the deeds.

      Error to Cooper Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Douglass Hayden, for plaintiff in error.
    I. The demurrer should have been overruled. The petition is not multifarious. (Sto. Eq. PI. § 285, 286, 531, 540; Adams Eq. 309, 310 ;■ Brinkerhoff v. Brown, 6 Johns. Oh. 368; Bigbee v. Sargent, 23 Maine, 269; Dimmoch v. Bixley, 20 Pick. 368 ; Curtis v. Tyler, 9 Paige, 432; Gaines v. Chew, 2 How. 619 ; Oliver v. Pratt, 3 How. 411; 4 Mo. 116 ; Bray v. Thatcher, 28 Mo. 129; Martin v. Martin, 13 Mo. 36.)
    II. The petition states facts sufficient to constitute a cause of action. They bring this case within the principle decided by the cases of Davis v. Davis, 5 Mo. 183, and Stone v. Stone, 18 Mo. 389. See Lightfoot’s Exec’rs v. Colgan & wife, 5 Munf. 558.
    Adams, Stephens 3f Vest, for defendants in error.
    I. At common law and under our statute dower attaches to land during coverture. Our statute only endows the widow of personalty belonging to the husband at the death. Any disposition made during the life of the husband will defeat dower. (16 Mo. 250; R. C. 1855, p. 668.) The term dower properly only applies to real estate. The marriage vests the wife with no interest in her husband’s personalty. The statute giving hex* dower in personalty only applies to that remaining undisposed of at the time of his death. It' is not the intent of the law to abridge in any way the right of the husband to dispose of his personalty by any disposition to take effect irrevocably dui’ing his lifetime. She has no interest inchoate or otherwise. The widow can only question such acts and conveyances of her husband as do not pass his estate away from him in his lifetime, such as are made in extremis and such as might be set aside on the ground of imbecility and are in effect wills in disguise. It is upon this ground that the cases of Davis v. Davis and Stone v. Stone were decided. The allegations of the petition do not bring this case within the rule referred to. She merely alleges that these deeds were made in anticipation of death and to defraud her of her rights. It is not alleged that they were made in extremis or in immediate anticipation of death, and are wills in disguise. They were made fifteen months or more before death. When does the husband’s right to dispose of his property cease ?
    II. The petition is multifarious. The demurrer was properly sustained. (See R. C. 1855, p. 1228 ; 20 Mo. 234; 26 Mo. 72; 17 Mo. 231; 11 Mo. 269; Sto. Eq. PL § 271; 16 Mo. 251.)
   EwiNG, Judge,

delivered the opinion of the court. ’

There are two questions in this case: _ first, does the petition show a cause of action; second, is it objectionable for multifariousness ?

It appears from the petition that the decedent, Alexander Tucker, died in June, 1859, leaving the plaintiff Sarah Tucker his widow, Benjamin H. and William H. Tucker his two sons, and three grand-children, the issue of a deceased daughter, who are minoi’S ; that the decedent on the 7th of April, 1858, being possessed and legal owner of certain slaves, ten in number, by his deed of gift of said date, with the view and for the intent and purpose fraudulently to deprive and defeat the plaintiff of her right of dower in and to said slaves, conveyed five of them, which are named, to the defendant W. EL Tucker, as trustee, in trust for the use of his three grand-children, who are also made defendants— said intestate reserving to himself a life estate in said slaves, and retaining the possession, use and service thereof,* that by another deed of gift, of the same date, for the purpose aforesaid, said decedent fraudulently conveyed to the defendants Benjamin El. and William EL Tucker, three of said slaves, reserving the possession, use and services thereof for and during his life; and that by a certain other deed dated January 5, 1858, the intestate conveyed to the plaintiff, to be enjoyed by her after the death of said intestate, with remainder in fee to the defendants, one of said slaves, reserving to him, the said intestate, the use of said slave during his life. The petition further alleges that, at the time of the execution of said deeds of gift, said intestate was, and long-prior to that time had been, in a feeble and declining state of health, and was weak both in body and mind, and that said deeds were made by him in expectation and in anticipation of death and for the purpose aforesaid of depriving and defeating plaintiff of her right of dower in said slaves; that defendants colluded with the intestate, and exercised an undue influence and control over him, and induced him to make the deeds for the purpose stated.

It is conceded that in this state the husband has no power by will to deprive the widow of her dower in personal estate, no more than in real estate ; and it is equally clear and well settled, since the decision in the case of Davis v. Davis, 5 Mo. 189, that the sense and intent of the statute on this subject applies not only to xoills technically, but also to deeds if made with the intent to defeat the widow’s dower; that if made for this purpose, the mere form or name of the instrument by which it is attempted is immaterial, and all such deeds are void as being in fraud of the widow’s rights under the statute.

But although the husband is not permitted to deprive his wife of her dower in his personal estate by will, he has the undoubted right to alienate this kind of property during his life, without his wife’s concurrence and disburdened from any claim of hers, if made bona fide and not as a device by which to retain the use and possession during life and at his death to place it beyond the reach of his widow. But if the transaction be merely colorable, or be accompanied with circumstances evincing fraud, the disposition will be void against her. In Hall v. Hall, 2 Vern. 276, the court said, if the goods are given absolutely by a freeman in his lifetime, they will stand good against the custom, under which the wife claimed; but if he has it in his power, as by the keeping of the deed, &c., or if he retains the possession of the goods or any part of them, this will be a fraud upon the custom. Keeping the deed in the husband’s hands or retaining possession of the property after assignment, are marks of fraud. (Smith v. Fellows, 2 Atk. 62.) The reservation of a life interest in property assigned by depd is held to be evidence that the gift is in effect testamentary, and therefore a fraud upon the custom. (2 Ver. 612, 685.) Roper, in his work on Husband and Wife (2 vol. p. 17), states his conclusion on this subject to be, that if the act be accompanied with the delivery of the property, and every thing is done, so far as it can be, before the husband’s death, to give effect to the transaction, and there is no reservation, and the husband divests himself of all interest in the property, then the act will be necessarily valid as a due exercise of his admitted right, whilst life remained, to dispose of his property in bar of the custom. The facts of this case as averred in the petition, we think, bring it within the influence of the principle laid down in Davis v. Davis, supra, and Stone v. Stone, 18 Mo. 389.

Though the instrument in the case before us is (like those in the cases just cited) in form a deed, and not technically a will, yet its execution was accompanied with such circumstances as evince a fraudulent intent, and are sufficient, if proved as they are alleged in the petition, to invalidate it. It has such characteristics of a testamentary disposition as to bring it as effectually within tbe prohibition of the statute as if it had all the technical requisites of a will. If the intent and effect of the deed are the same, the mere form or mode of accomplishing it is immaterial. The petition shows that the deeds were voluntary; that they were made in expectation and anticipation of death, when the decedent was in feeble and declining health; that the slaves, some nine in number, were conveyed to the defendants, who are his children and grand-cliildren, reserving however to himself during his life the use and possession thereof; that one other slave was conveyed to plaintiff to be enjoyed after decedent’s death, with remainder in fee to the defendants, but retaining in like manner the possession of this one also during his life. These conveyances are alleged to have been made to defraud the widow of her dower, and to have been the result of collusion between decedent and the defendants, and of undue influence exercised by them over him. And of the sufficiency of the facts alleged in the petition to constitute a cause of action, we entertain no doubt.

The objection that the petition is multifarious we think is not well taken. Although there are several deeds, and the property is claimed by the parties defendants under different instruments, and may to that extent be considered distinct transactions, yet they are transactions connected with the same general subject matter and subject of action, and therefore come within requirement of the statute. (R. C. 1855, p.-, art. 6, § 2.) There is one general right in the plaintiff, and the claim of the defendants to the property in controversy is so far identified, that if the claim of one is invalid, the claim of all is likewise invalid. The defendants are all alike concerned in sustaining the deeds conveying the property and defeating the plaintiff’s action. It is true the property is held under distinct conveyances, but the gravamen of fraud equally applies to all of them. If one of the conveyances is fraudulent, all are fraudulent, and all the property thereby conveyed is affected by the plaintiff’s claim of dower.

The principle of allowing a plaintiff to bring many defendants before the court is that he claims one common right against all, and therefore the court allows him to bring all persons disputing that right before the court in one bill. (11 Mo. 270.) It is said a bill is objectionable for multifariousness when different matters having no connection with each other are joined in a bill against several defendants, a part of whom have no interest in or connection with some of the distinct matters for which the suit is brought, so that such defendants are put to the unnecessary trouble and expense of answering and litigating matters stated in the bill in which they are not interested and with which they have no connection. (3 Barb. Ch. 432.) The objection of multifariousness is confined to cases where the cause of each defendant is entirely distinct and separate in its subject matter from that of his cofendants. A bill is not demurrable where one general right is claimed by the plaintiff, although the defendants may have separate and distinct rights. (20 Pick. 368; 3 Iredell Eq. 611.) In Brinkerhoff v. Brown, 6 John. Ch. 156, the leading cases are reviewed, and the subject discussed at length by Chancellor Kent, who says that the principle to be deduced from the cases is that a bill against several persons must relate to matters of the same nature and having a connection with each other, and in which all the defendants are more or less concerned, though their rights in respect to the general subject of the case may be distinct. In Whaley v. Dawson, 2 Sch. & Lef. 367, the rule was declared to be that where there was a general right covering the whole case, the demurrer would not be allowed, though the defendants had separate and distinct rights. (See also to the same effect, Curtis v. Tyler, 5 Paige, 434; Bray v. Thatcher, 28 Mo. 129.)

The judgment will be reversed and the cause remanded ;

the other judges concurring.