text:
    Bozarth et al., Plaintiffs in Error, v. Bozarth’s Executor et al., Defendants in Error.
    i. A will, after a devise to the wife of the testator of eighty acres of land, proceeded as follows : “ It is my will that at the death of my wife C. B., or at her marriage, or whenever she may as my widow voluntarily consent to it, that my land he sold, and that together all my other estate, to-wit, any amount arising from the sale of personal property, the proceeds of the sale of all my negroes that may belong to my .estate, to-wit, the two men Joe and Isaac, and the children of Winney, if not amicably and equitably divided, shall be sold at the time my daughter Elizabeth shall become oí age, or to the age of twenty-one, as before mentioned, and shall be equally divided between my nine heirs now next named,” &c. Held, upon an application for an order directing the executor to sell lands other than the eighty acres devised to the widow,, and distribute the proceeds among the parties entitled, that the land could not be sold, the widow still living, except with her consent.

      Error to Howard Circuit Court.

    Davis, for plaintiffs in error.

      Clark, for defendants in error,
    cited Bradstreet v. Clark, 12 Wend. 665 ; Petiss v. Petiss, 4 McCord, 151.
   RylaND, Judge,

delivered the opinion of the court.

This is a petition by a part of the legatees of Jonathan Bo-garth, deceased, against the executor, the widow and a daughter of said Bozarth, for thé purpose of requiring the executor to sell the land belonging to the estate of the testator, and divide the proceeds among the parties entitled, under the clause of the will directing this to be done. The defendants appear and answer, and set up for defence that by virtue of the will the land was to be sold at the death, of the widow, or upon her second marriage, or when she should consent to the sale thereof ; and that neither of these events had occurred, and therefore the executor was not authorized to sell. There being no dispute about the faets, and the only question being as to the true construction of the will in this particular, the matter was submitted to the court upon the petition and answer. The court decided in favor of the defendants and dismissed the petition. The petitioners bring the matter here by writ of error. The only question therefore is in regard to the construction of the testator’s will. The will is set forth in the petition, and the clause mainly in dispute is the sixth, which will be inserted in this opinion. The will is very awkwardly written ; is evidently the work of a person not in the habit of expressing his thoughts and opinions in writing. But by attentively examining and comparing the different clauses, we think the intention of the testator, in regard to his land, may be ascertained.

I will only insert the clauses necessary to a proper decision of the matter in controversy. Second clause : “I give to my wife, during her life or widowhood, eighty acres of land, to include the domicil where we now reside, described as follows: forty acres off the south end of 120 aeres I own in section sixteen, being two-thirds of the south-west quarter of said section, in township fifty, range fifteen ; and also the north-east quarter of the north-west quarter of section twenty-one, in same range and township; also, during her natural life or widowhood, a negro woman named Winney and her child, a boy named Ben, about eight years of age. I also request and direct that said Winney’s two other children be kept with her, with any others she may have, until such time as my daughter Elizabeth shall arrive at the age of twenty-one years, when they may be divided by general consent of my heirs, which are hereinafter named. I also give to my wife, at my death, all the amount to which she may be legally entitled, either in money or property, at appraisement.” Sixth clause : ££It is my will that, at the death of my wife Cynthia Bogarth, or at her marriage, or whenever she may, as my widow, voluntarily consent to it, that my land be sold, and that together ; all my other estate, to-wit, any amount arising from the sale of personal property, the proceeds o£ the sale of all the negroes that may belong to my estate, to-wit, the two men Joe and Isaac, and the children of Winney, if not amicable equitable divided,’ shall be sold at the time my daughter Elizabeth shall become of age or to the age of twenty-one, as before mentioned, and shall be equally divided between my nine heirs, now next named, and to some of them their equal portions, in addition to certain specific legacies herein provided for, to-wit: Andrew Bozarth, Betheal Claton, Milton J. Bozarth, Harriet McGrew, Alfred Bozarth, Sindarilla Summers, Pinckney A. Bozarth, Elenora Bozarth and Nancy Elizabeth Bozarth, except to Alfred Bo-zarth, and he shall have two hundred dollars over and above all the others on a final division of my estate, he having had less than the others previously ; and to my children Hiram Bozarth or his heirs, Malvina Hargis or her heirs, and Mary Grace or her heirs, I give to each of them five dollars — that is to say, five dollars to the heirs of each one of the above named three children.”

This sixth clause is the only one in which he will's his land to be sold ; tbe petitioners allege that tbe time appointed for such sale is when bis daughter Elizabeth arrives at twenty-one years of age. Tbe defendants deny this construction, and say it is at tbe death of bis widow, or her marriage, or when she voluntarily consents thereto. Tbe court below construed tbe will as contended for by tbe defendants, and we can not say that this-construction is unwarranted. There may have been obvious reasons moving tbe testator thus to will it. The petition shows that there are 240 acres of land belonging to the estate, besides the eighty acres willed to the widow for her natural life or widowhood. Of these 240 acres, one-quarter section of 160 acres adjoins the widow’s forty acres in the sixteenth section on the south, and the widow’s forty acres in the twentieth section on the east, and the remaining eighty acres lie north and adjoining the widow’s forty acres in the sixteenth section ; so that the widow’s forty acres in the sixteenth section separates the 240 by lying in full extent between the eighty acre tract in the sixteenth section, and the 160 acre tract in section twenty-one. Now the testator might not wish his land sold when thus cut up or dismembered, or at least might not wish to place his widow’s home between two tracts, liable to be bought by strangers or persons who might feel little or no sympathy for her. He therefore named three events at any one of which his executor could sell his lands ; one was the death of his widow ; another, on her marriage; the third, at her voluntary consent that the lands should be sold. We can not agree to construe this sixth clause so as to place the time of sale of his lands at the majority of his daughter Elizabeth. His widow has a life estate in the two forty acre tracts; she has some interest in knowing when the other lands are to be sold, and the testator placed the event at her death or in her power. She was not to be placed, in a situation, which might be one of great embarrassment or strife, without her consent; and he believed that his land might be sold to greater advantage by being retained and sold altogether. The judgment of the court below will therefore be affirmed ;

Judge Leonard concurring ; Judge Scott not sitting when the case was argued.


source: Caselaw Access Project

author: RylaND, Judge,

license: Public Domain

text:
    Stratton, Plaintiff in Error, v. Harriman, Defendant in Error.
    1. The owner of a slave can not he rendered liable under section 35 of article 9 of the Act concerning Crimes and Punishments for the loss of a horse belonging to plaintiff, where the offence charged against the slave is the burning of the stable in which the horse happened to be at the time of the fire.

      jError to Cooper Circuit Court.

      J. W. Drqffin, for plaintiff in error.
    I. It is only necessary that the petition should show that a slave committed the wrong complained of ; that the defendant at the time was the master or owner of the slave; and that plaintiff had sustained damage to his property by the commission of the wrong. (R. C. 1845, tit. Crimes and Punishments, article 3, section 7 and 11, and section 35 of article 9.)

      Jldams and Stephens, for defendant in error.
    I. A master or owner is not liable at common law for an injury wilfully committed by his slave without his direction or assistance, especially when the slave is not at the time in the performance of his master’s business. (See Jennings v. Ka-vanaugh, 5 Mo.-; Ewing v. Thomson, 13 Mo. 132 ; Douglass v. Stephens, 18 Mo. 362 ; Snee v. Trice, 2 Bay, 345 ; Vergis v. Smith, 3 McCord, 400 ; 2 Kent Com. 259, 260 ; 17 Mass. 508.)
    II. The statute which gives a party a remedy against the master or owner of a slave for an offence against his property, committed by such slave, does not cover a case of this kind. (See R. C. 1845, tit. Crimes and Punishments, art. 9, section 35, and art. 3, p. 414, 353.) The property offended against in this case was the barn and stable of Lieldider, and not the horse of the plaintiff. The arson was committed in burning Licklider’s barn and stable, and not its contents.
   RylaND, Judge,

delivered tbe opinion of the court.

This was an action by plaintiff against the defendant, in order to recover damages for the destruction of the plaintiff’s property by the slave of the defendant. The petition states “ that John, a slave, on or about the first day of April, A, D. 1855, did wilfully set fire to and burn in the night time a barn and stable of Thomas Licklider, in the county of Cooper, and that William Harriman, the defendant, was the master and owner of said slave at the time he committed said offence. Plaintiff further states that he had in the barn and stable of said Licklider, at the time the same was so burnt by the said slave, a bay stallion of great value, to-wit, of the value of three hundred dollars, and that said horse was entirely consumed by said fire and was wholly lost to plaintiff. Plaintiff further states that by reason of the premises and of the commission of said offence by the said slave as aforesaid, he has sustained damages to the amount of three hundred dollars, for which he prays judgment.”

To this petition the defendant demurred, because it does not state facts sufficient to constitute any cause of action, and because no cause of action is set forth in said petition. The court sustained the demurrer, and gave judgment thereon for the defendant. The plaintiff thereupon sued out his writ of error, and brings the case to this court.

The question here involves the construction of our statute making the owner liable for certain offences committed by his slave by which the property of another is damaged. The 35th section of the 9th article of the act of Crimes and Punishments (R. C. 1845, p. 414,) provides that “Every person who shall be injured by the commission of any offence against his person, as specified in the second article, or against his property, as specified in the third article of this act, committed by a slave, shall have an action against the master or owner of such slave for the time, to recover any damages by him sustained by the commission of such offence, not exceeding in amount the value of the slave.” The 7th section of the third article is as follows : 11 Every person who shall wilfully set fire to or burn in the night time any house, building, barn, stable, boat or vessel of another, or any house of public worship, college, academy, or school-house, or building used as such, or any public building belonging to the United States, or this state, or to any county, city, town or village, not the subject of arson in the first or second degree, shall, on conviction, be adjudged guilty of arson in the third degree.” This section embraces the offence charged to have been committed by the defendant’s slave “ wilfully setting fire to and burning in the night time the barn and stable of Thomas Licklider.” The offence is arson in the third degree. The property against which the offence was committed is the barn and stable of Licklider, and not the contents of the barn and stable. The 11th section of this third article declares that Every person who shall, in the day or night time, wilfully set fire to or burn any goods, wares, merchandise or other chattels of another, not the subject of arson in the third degree, or any stack of grain of any kind, belonging to another, or any grain, grass or herbage, growing or standing in the field, or any nursery or orchard of fruit trees, or any fence belonging to another, or any toll bridge or other public bridge, shall, on conviction, be adjudged guilty of arson in the fourth degree.” The punishment of arson in the third degree is imprisonment in the penitentiary not less than five nor more than seven years ; in the fourth degree, in the penitentiary not more than four years, or by imprisonment in the county jail not less than six months. The remedy is given for the damage done to the property offended against. Here the plaintiff shows that the property offended against is the stable and barn of Licklider. The offence set forth, as committed by the slave, is against the 7th section of the third article, and not the 11th section. The defendant’s slave committed arson in the third degree, and not the fourth. We do not think the plaintiff’s statement of his cause of action is embraced by the provisions of the third article of the act, and consequently the defendant is not made liable under the statute.

He is not liable at common law. At common law, though the master be liable for the servant’s negligence to the injury of another, when doing a lawful act in his service, he is not liable if the act be wilfully unlawful, unless shown to be done by the master’s authority, in the case of Ellis v. Turner et al., 8 Term Rep. 531, Lord Kenyon said “the defendants are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for misconduct in those things that do not respect his duty to them, as if he were to commit an assault upon a third person in the course of his voyage.”

In McMannus v. Crickett, 1 East. 106, it was considered to be a question of great concern and of much doubt and uncertainty, whether the master was answerable in damage for an injury wilfully committed by his servant while in the performance of his master’s business, without the direction or assent of the master. The court of king’s bench went into an examination of all the authorities, and after much discussion and great consideration, with a view to put the question at rest, it was decided that the master was not liable in trespass for the wilful act of his servant, in driving his master’s carriage against another, without Ms master’s direction or consent. The court considered that when the servant quitted sight of the object for which he was employed, and without having in view his master’s orders, pursued the object which his own malice suggested, he no longer acted in pursuance of the authority given him, and it was deemed, so far, a wilful abandonment of his master’s business. “This case,” says Chancellor Kent, “has received the sanction of the Supreme Courts of Massachusetts and New York, on the ground that there was no authority from the master, express or implied, and the servant, in that act, was not in the employment of his master.” (2 Kent’s Com. 260; Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480; Wright v. Wilcox, 19 Wend. 343; Jennings v. Kavanaugh, 5 Mo. 26; Ewing v. Thompson, 13 Mo. 132; Douglass v. Stephens, 18 Mo. 362.) It is not important to pursue this point further, as the plaintiff does not contend that the defendant is liable by the principles of the common law. He relies alone upon the statute concerning erimes and punishments, and cited the sections of that act above quoted, and contends that it is only necessary that the petition should'show that a slave committed the wrong complained of; that the defendant at the time was master or owner of the slave; and that plaintiff had sustained damage to his property by the commission of the wrong.

The burning of goods, wares, merchandise or other chattels constitutes arson in the fourth degree, as specified in the 11th section above quoted. This is a substantive offence in itself and must be so charged, and it can not grow out of arson in burning a barn or stable, which is arson in a higher degree, and punishable in a different way. As before remarked, the offence charged as committed by the slave John is arson in the third degree, and is against the barn and stable of Licklider; not against the horse of a third person, happening to be therein at the time. This statute is a highly penal one, and must be construed strictly.

In the opinion of this court, the offence against the property must be correctly and properly charged in order that it may be seen whether it is an offence under the 35th section of the third article of the act mentioned or not. Here the offence is, not the arson in burning the goods, chattels, &c., but in burning the barn and stable. The judgment below must be affirmed ;

Judge Leonard concurring; Judge Scott not present when the case was submitted.


author: Rylakd, Judge,

text:
    Street, Appellant, v. Bushnell, Respondent.
    1. Where the plaintiff in a suit for slander fails to prove the words as charged, the court may, in allowing an amendment, require the plaintiff to pay all costs that have accrued since the commencement of the suit.

      Appeal from Henry Circuit Court.

      F. P. Wright, for appellant.
    I. Tbe Circuit Court erred in excluding the evidence. It tended to prove the charge of theft as alleged in the petition. Except in cases when the allegation is unproved in its entire scope and meaning, no variance between the allegation in the pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defence. When the adverse party proves by evidence aliunde to the satisfaction of the court that he has thus been misled, and then only, the court has the right to adjudge costs upon allowing the amendment. In this case the defendant did not offer any proof that he had been misled, nor did he even so allege ; hence the court erred in adjudging costs, and especially all the costs in the case. In cases where the court has a right to fix terms, those terms must be just. (Catlin v. Gunter, 1 Kernan, 368 ; R. C. art. 9, § 1 & 2, p. 1253 ; 10 Howard’s Prac. 316 ; Dewel v. Spence, 1 Abbot’s Prac. 237 ; Miller v. Garting, 12 How. Prac.. 203 ; Hagens v. De Hart, id. 322.)
    H. The allegation in the petition was not unproved in its entire scope and meaning. (Morgan v. Livingston, 2 Rich. 573.)
    III. The court erred in not permitting plaintiff to prove by the witness how they understood the words.
   Rylakd, Judge,

delivered the opinion of the court.

This is an action'of slander, for words spoken of the plaintiff by the defendant. Upon the trial, the plaintiff failed to prove the words as he had charged them to have been spoken ; but proved words which he considered actionable. He therefore moved the court for leave to amend his petition, so as to make it conform to the proof in his power. The court granted this motion upon terms, which were that the plaintiff should pay all the costs already incurred except the costs of the commencement of the suit. The plaintiff declined amending on those terms, and excepted to the decision of the court in refusing the leave to amend on other than the ordinary terms. The plaintiff then took a non-suit. He filed his motion to set aside this non-suit, which being overruled, he excepted, and brings the case here by appeal.

The words charged in the plaintiff’s petition as having been spoken of him by the defendant are, “ I (meaning the defendant himself) was summoned as a grand juror at last court, but I got the court to excuse me from serving; for, if I had served, I would have been bound to have indicted William D. Street for theftthen and there meaning, and was so understood to mean by Mathew Arhuckle and others, that he, William D. Street, the plaintiff, had been guilty of larceny.

In the second count, the words are thus charged : “ I (meaning the defendant) got myself excused from serving on the grand jury at the last term of the Henry Circuit Court, (meaning the May term thereof in the year 1855,) for, if I had served as a grand juror, I would have been bound to have indicted William D. Street for theftthereby then and there meaning, and was so understood to mean by John H. Edmonson and others, that William D. Street, plaintiff, had been guilty of the crime of larceny.

The words proved were, defendant said, “if he had served on the grand jury, he would have been bound to have indicted Mr. Street, the plaintiff.” Witness.asked defendant what Mr. Street had been doing; he (defendant) said he (Street) had been getting or taking goods from his store without accounting for them. Witness observed to defendant that it was a very serious charge, and he ought not to r’say any thing about it unless he could prove it; he replied that he could prove every thing he said about it. Witness understood him to mean every thing he had said to witness. Another witness said he heard defendant say he was summoned on the grand jury and did not serve. He (defendant) stated he would not have served on that jury for fifty dollars. Witness asked him why; he said, “ if he had done it, he would have been bound to present Mr. Street.” Witness asked him for what; he stated that he (Street) “had taken or gotten things out of the house for which he had not accounted.” Witness thinks that he did not state at the time for what offence he would have had to indict him. This witness also stated that at another time defendant stated to this witness “ that he would not have served on that jury for five hundred dollars ; if he had, he would have had to to have his brother and Mr. Huston summoned before the grand jury for the purpose of establishing the fact that he (Street) had taken things out of his store for'which he had not accounted.” Defendant referred to things he said plaintiff had taken and for which he had not charged himself; he named some calico, five yards of domestic, and it may be some other things, plaintiff had taken and for which he had not charged himself; he never said he had stolen it. Defendant said that the plaintiff had got some things out of his store, and mentioned different things. Plaintiff had been clerk in the defendant’s store, and at various times had taken things and omitted to charge himself with them. He said plaintiff had got some domestic and had omitted to charge himself with the proper amount. Defendant did not say that plaintiff had been guilty of any offence ; he did not name “ theft” or any thing of that kind. He said that he should have to indict him for taking goods that he had not accounted for. He was alluding to the plaintiff when he had been his clerk. This is the proof offered by plaintiff to support the charge in his declaration. The plaintiff’s counsel asked the witness what he understood defendant to mean by the words he spoke of the plaintiff. The defendant’s counsel objected, and the court sustained the objection. Plaintiff excepted. The defendant’s counsel then moved the court to exclude all the evidence of plaintiff of the words spoken, as they were not proved as alleged, which motion the court sustained, and excluded all the evidence of plaintiff, and the plaintiff excepted. Plaintiff thereupon moved to amend, as already stated, which was granted him on terms which he refused to accept.

The plaintiff contends that there is not a total failure of proof, but only a variance ; and that in such cases he has the right to amend without payment- of the costs already accrued. The court below considered it a total failure to prove the words as charged, and consequently would allow the amendment only on terms. We are inclined to the opinion that the Circuit Court properly considered this a failure to make out the words as charged, and that the order to amend on terms was proper. In slander the words must be proved, or a sufficient number of them proved, to support the charge as set forth in the declaration ; it will not do to prove equivalent expressions. The rule stated in the books is, that the slander proved must substantially correspond with that charged in the declaration. By this it is not to be understood that if certain words are employed to convey a slanderous imputation, those words will support a declaration containing the same imputation in different words. The meaning of the rule seems to be that if the words charged to have been spoken are proved, but with the omission or addition of others, not at all varying or affecting their sense, the variance will not be regarded. Although the words proved are equivalent to the words charged in the declaration, yet not being the same in substance, an action can not be maintained; and although the same idea is conveyed in the words charged and those proved, yet if they are not substantially the same words, though they contain the same charge, but in different phraseology, the plaintiff is not entitled to recover. (Barry v. Dryden, 7 Mo. 325.) Though the plaintiff need not prove all the words laid, yet he must prove so much of them as is sufficient to sustain his cause of action; and it is not enough for him to prove equivalent words of slander. (2 East. 438.) The words in this plaintiff’s petition were not proved, nor was there proof of equivalent words. The plaintiff failed to make out his charge. Why then should he be permitted to amend his petition by alleging a new set of slanderous words in accordance with the proof just offered in court, and go on forthwith with his trial ? There are few suits which parties bring in our courts less deserving favor than suits for slander ; and if our courts were to suffer plaintiffs to sue and go to trial, and when they find that they have misstated the slanderous words, permit them, without costs, to amend their petitions and proceed with the trial, there would be no end to the strife and litigation consequent upon such practice. The peace and well-being of the community are promoted by decisions whose tendency is to put a stop to vexatious litigation. If parties will sue for slanderous words, and such actions are sometimes necessary as being the only way to tie a knot in the tongue of malice and defamation, let them learn the extent of the words, the full force of the charge, and then carefully and prudently seek the redress afforded for such injuries by stating the grievance according to its real existence. We are satisfied that the terms offered to the plaintiff below were proper, and were as favorable as he had a right to demand; and having declined to accept them he must be left where he voluntarily placed himself.

There is no error in refusing to let the witnesses state what they understood by the words spoken of plaintiff by defendant in this action. Such proof would have been unavailing and useless here, since the slanderous words were not proved as charged. Let the judgment be affirmed; the other judges concurring.


author: Ryland, Judge,

text:
    Bank of Missouri, Respondent, v. Matson, Appellant.
    1. The voluntary dismissal of an attachment suit, commenced by an endorsee of a promissory note at the request of a surety on said note against the principal, in which suit an amount of property more than sufficient to satisfy the debt was attached, will discharge the surety.

      •Appeal from, Livingston Circuit Court.

      Clark, for appellant.
    I. The facts set up in the appellant’s answer were well pleaded, and if true formed a good defence to the plaintiff’s action. No principle is better settled than that alter a creditor has by agreement with the debtor, or by any legal process, got possession or control of sufficient property or means to satisfy his debt, and chooses not to retain them, but suffers them to pass into the hands of the principal debtor, the security is thereby released and can never be afterwards called on. (Ferguson v. ■Turner, 7 Mo. 498 ; Rice v. Morton, 19 Mo. 263.)

      Gardenhire, for respondent.
    I. This case is not within the principle of Ferguson v. Turner, 7 Mo. 497, or of Rice v. Morton, 19 Mo. 263. In both these cases the creditors had judgment and execution, an existing lien, and by active interference, destroyed it. That is not this case. Commencing an action with an attachment and dismissing it is no discharge. It may have been improperly brought, and dismissed for that reason, and for the purpose of bringing a proper action. The answers shows no fraud or agreement with the principal. A new action might have been immediately recommenced. In the case of the Bank of Montpelier v. Discar, 4 Yerm. 587, it was expressly decided that a ■voluntary discontinuance of an attachment did hot discharge the surety, and the same doctrine was reaffirmed in Baker v. Marshall, 16 Verm. 522, in a stronger case. In the absence of fraud and an agreement with the principal debtor, the creditor may be inactive if he chooses. He is not bound to commence an action, and having commenced it, he may dismiss it when he pleases. The same doctrine is recognized in Creath v. Sims, 5 How. U. S. 192. The answer does not show that the creditor received any consideration for dismissing the attachment, or put any limitation upon his right to proceed in a fresh action, if he chose. It was nothing more then, in principle, than an action on the part of the creditor, which, it is well settled, does not discharge the surety.
   Ryland, Judge,

delivered the opinion of the court.

The Bank of the State of Missouri at Lexington commenced suit in the Livingston Circuit Court, at the November term, 1856, against tbe defendant, upon a negotiable note endorsed to tbe Bank. Tbe appellant appeared and filed to said action tbe following answer : “ Tbe defendant, for bis amended answer to tbe plaintiff’s petition in this cause, admits that be and one William Lennox executed tbe note sued on in manner and form as charged in tbe petition, but avers that be executed tbe same as security of the said Lennox, and that at tbe time said note was endorsed and received by tbe plaintiff, it was well known'to plaintiff that this defendant was only a security on said note for said Lennox. Defendant further alleges that he never received from plaintiff any notice of the dishonor and protest of said note. Defendant further states that after said note became due, defendant having learned through rumor that tbe note in controversy had not been paid at maturity by tbe said Lennox as principal in said note, defendant dispatched an agent to plaintiff with instructions to inform tbe plaintiff that said Lennox, as principal in said note, bad then in Livingston county, Missouri, sufficient property and effects out of which tbe amount of said note might be collected and coerced by immediate suit, and that there was great danger that said Lennox would dispose of bis said property so as to avoid tbe payment of this and other debts that were then pressing upon him. Defendant further states that said agent, in compliance with bis instructions, did communicate to plaintiff tbe information as last above mentioned, and that plaintiff, waiving tbe necessity of a formal written notice, by promptly acting on tbe information aforesaid, did, on or about the 20th day of March, A. L>. 1849, by her attorney, commence in this court a suit by attachment against the said William Lennox, on tbe note here suejd on ; that, by virtue of tbe writ of attachment issued in said suit by tbe clerk of this court, tbe sheriff of Livingston county, to whom the same was directed, seized and attached a large amount of property, consisting of land and personal property, of which said property he, the said Lennox, was at that time the owner, and which was ample and sufficient to' satisfy the debt then and now sued on. Defendant further states that plaintiff wholly failed to prosecute the said suit of attachment with due and proper diligence, but did at the aforesaid May term, 1849, of this court, by her attorney, voluntarily dismiss the said attachment suit, and did voluntarily authorize and consent that all of said property so seized and attached by virtue of the writ of attachment aforesaid, should be released and delivered up to said Lennox, which was accordingly done, and said Len-nox in a short time thereafter became insolvent, and had since died insolvent. Wherefore the defendant alleges and claims that he is wholly exonerated and discharged from the payment of the note here-sued on, and all and every part thereof, and asks for a judgment for his costs in this behalf expended.”

The plaintiff moved the court to strike out the defendant’s answer upon the ground that it contained no matter of defence to the plaintiff’s action, which the court sustained, and ordered the answer struck out; the defendant tiling no other answer, the court gave judgment for the plaintiff for the debt and interest. The defendant moved to have the judgment set aside and for a new trial, which was refused, and the defendant has brought the suit to this court by appeal.

From the statement of this case, we are unable to distinguish it in principle from the doctrine laid down by this court in the case of Rice v. Morton, 19 Mo. 263. Here the plaintiff, the Bank of Missouri, brings her suit against the defendant as one ■ of the makers of a negotiable promissory note. The defendant files his answer, stating in effect that he was security only, which was known to the plaintiff; that upon the request of the defendant, the Bank commenced suit against the principal in the note and attached real estate of the principal, enough to satisfy the debt; that afterwards the Bank dismissed this suit voluntarily, a id gave up its lien on the attached property. This matter is set up in discharge of the liability on the note. The court struck out this answer. This we consider as an error; for, according to the principle of Rice v. Morton, the answer offered a good defence to the plaintiff’s action. The defendant must be allowed to try his case on this answer, and the Bank will then be allowed the opportunity of setting up any matter in reply to the. prima facie case made by the answer. The authorities on the question here presented by the answer are many of them cited and commented on by the court in the case of Riee v, Morton, and it is thought unnecessary here again to cite them. We refer to the opinion in that case. The court below erred in striking out the defendant’s answer. The judgment is reversed, and the cause remanded ; the other judges concurring.


text:
    Burns’ Administrator, Respondent, v. Hunton, Appellant.
    1. The allowance by a justice o£ the peace of an appeal from a judgment by default raises no presumption that an application had been previously made by the party aggrieved to set aside the default.

      •Appeal from Benton Circuit Court.

    Gardenhire, for appellant.
    I. It is true no appeal can be taken from a judgment by default, unless application be made to the justice to set it aside, and such application is refused (2 Rev. Code, 971, sec. 2); but granting an appeal is at least prima facie evidence that such application was made and refused, it was not necessary that the application should have been made in writing, or that the making or refusal of it should appear on the justice’s docket (2 R. 0. p. 928, 929, sees. 2 & 3). The justice was not specially required by law to pur such faets upon his docket. He might have done so if he had thought it useful. He could not grant the appeal without them, and granting it necessarily implies their existence. Great liberality is due in reviewing the judgments of justices of the peace. (15 Mo. 442.) The application to set aside the judgment by default may have been made and refused, and as an appeal was granted which could only have been done upon such application and refusal, their existence is a fair and legitimate presumption. The granting of the appeal stands against the silence of the justice’s docket. The grant is affirmative evidence of the existence of the application and refusal; the silence of the docket is no evidence against it, for it is not legally inconsistent with such existence. Granting the appeal, then, was sufficient to put the respondent upon the proof of the non-existence of such application and refusal.

      F. P. Wright, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit by James Burns, as administrator of Henry F. Burns, deceased, against Felix Hunton, before a justice of the peace, on a promissory note. There was a judgment by default before the justice’s court against Hunton, who after-wards prayed for and obtained an appeal to the Circuit Court. Upon the filing of the transcript of the justice’s proceedings in the Circuit Court, the plaintiff moved the court to dismiss the appeal because no appeal is by law allowed from a judgment by default in a justice’s court to the Circuit Court, unless within ten days after the rendering of sueh judgment by default application shall have been made to the justice by the party aggrieved to set the same aside, and such application shall have been refused, and because in this ease no such application had been made, and consequently no appeal could be allowed. ■ The court sustained this motion, and dismissed the appeal at the costs of Hunton. He afterwards moved to set' aside this order dismissing his appeal, which motion being denied, he brings the cause here by appeal.

The Circuit Court committed no error in dismissing the appeal in this case. The proceedings before the justice show a proper service of the summons on Hunton, and the justice rendered the judgment against him by default correctly ; and from such judgment no appeal lies, unless the party aggrieved shall, within the time prescribed by the statute, apply to the justice to set aside the judgment by default, and the justice shall refuse so to do.

In this court the appellant contends that the Circuit Court erred in dismissing this appeal, because the justice’s transcript shows that the appeal was granted by the justice ; and as the law does not allow the appeal on such judgments unless the proper motion to set the same aside be first made and overruled, that in this case the mere act of granting the appeal presumes that such motion had been made and overruled. This reasoning is specious and unsafe. It was the appellant’s duty to have made the proper motion within time, and if he had done so, a rule on the justice to perfect his transcript would very soon have shown the fact. But he omits this important prerequisite step, and obtains illegally an appeal, and relies alone upon the mere fact that an appeal was granted to him, as the proof of his having performed the necessary steps to his right thereto. His duty made it necessary that his application to set aside the judgment by default and its denial should appear by the record, and not by specious and unsafe implication. His right to appeal must plainly appear, and unless this necessary application appears by the record, he has no right to appeal from a judgment by default. Such has been the uniform practice of our courts. (Barret et al. v. Lynch, 3 Mo. 261, decided in 1834.) Let the judgment be afErmed ; the other judges concurring.


author: Rylahd, Judge,

text:
    Burns, Respondent, v. Hunton, Appellant.
    1. Where a judgment by default has been rendered by a justice of the peace, an appeal taken to a circuit court may properly be dismissed unless it appear that prior to the taking of the appeal an application had been made to the justice to set aside the default.

      Appeal from Benton Circuit Court.

      Gardenhire, for appellant.

      F. P. Wright, for respondent.
   Rylahd, Judge,

delivered the opinion of the court.

This suit is founded on an account due by defendant Hunton to the firm of Burns & Brother, and is brought by the plaintiff as surviving partner. The facts are very similar to those of the case of Burns as Adm’r, &c. v. Hunton, just decided. The suit was before a justice of the peace ; there was proper service of the writ, and judgment by default was correctly rendered in favor of plaintiff against the defendant, and, without making any application to set aside this judgment, Hunton takes an appeal to the Circuit Court. The plaintiff moved to dismiss the appeal, and the court sustained this motion. Hun-ton afterwards moved to set aside this order dismissing his appeal, which being denied him, he brings the case here by ap~ appeal. The decision just rendered in the case of Burns as administrator, &c., v. Hunton, settles the law of this case, and to the opinion therein given reference is made. Let the judgment be affirmed ; the other judges concurring.


text:
    Withers, Appellant, v. Rodgers, Respondent.
    1. Where the defendant in an attachment suit, upon whom there had been a defective service, moves to quash the return of the sheriff and the writ, it is error to dismiss the suit.

      Appeal from, Vernon Circuit Court.

      F. P. Wright, for appellant.
    I. The fact that the petition or a copy of it did not accompany the writ did not affect the validity of the writ. It was upon this ground the court quashed the writ and return, and dismissed the proceedings. In doing so, the court clearly erred.
    II. The petition, affidavit and bond authorized the clerk in issuing the writ. The petition and affidavit were amended out of abundant caution by leave of the court, and before the motion was determined. There is no objection to the form of the writ. Petitions and proceedings may be amended in attachment cases as well as in any other case. (21 Mo. 412.) And the statute allows the amendment of an affidavit. (R. C. 1845, p. 142, sec. 47, 11.) The writ being good, and as the only defect in the proceedings complained of by defendant was an insufficient service in not reading the petition as well as the writ, this omission was cured by the appearance of the defendant, and moving the court to quash the writ and return. And this appearance precluded the court from quashing the writ and return upon the sole ground as it did that the petition or a copy did not accompany the writ. (Evans v. King, 7 Mo. 411; Whiting & Williams v. Budd, 5 Mo. 443 ; Powers v. Browder, 13 Mo. 154.)
    III. When the the petition, affidavit and bond were filed, the suit was well instituted. The power of quashing applies to the writ and process only; a writ can not be quashed for any defect in the petition (4 Cushing. 280) ; neither can it be quashed because the petition did not accompany it.

      Gardenhire, for respondent.
    I. The writ and return were properly quashed. (R. C. p. 139.) It is true, a judgment rendered against a party who had no notice of the proceedings is utterly void. (7 Mo. p. 1; ib. 463.) Legal notice of course is meant. Surely, if the party finds it out independent of process, he may appear for the special purpose of advising the court of the want of service, without such appearance amounting to service. A waiver of defects in service by appearance is an inference — a presumption of law from the conduct of the party, and must be truthful. It arises from a general appearance, not from a special one, in which the party expressly declares he does not mean to waive the defect, but comes to take advantage of it. What inference — what presumption can arise from such an appearance ? What room is there for presumption ? Shall one be had against the truth ? A party may make a voluntary appearance, but this is not it. It is a matter within his control, and he may limit it as he pleases. A party in court for one purpose is not there for all. (9 Mo. 638, 741.) You cannot force a party to appear to the merits, except by process legally served. From a general appearance you infer his assent; but when he says he does not assent, there is no room for inference. There are full appearances and appearances not full. ( 5 Mo. 445.) The nature of the appearance must be looked at. (Ib. 6 Mo. 57.) Appearance and defence waive defects. (3 Mo. 40.)
    II. Whether appellant was entitled to a new writ was not decided by the court. The point was not made. The same point, and none other, expressly decided by the court below can be reviewed here. (R. C. 1845, p. 906, sec. 32.) The point evidently was not thought of below.
   RylaND, Judge,

delivered the opinion of the court.

This was a suit by attachment. The clerk issued the writ, but did not send it out attached to the petition, nor did the petition accompany the writ. The sheriff served the writ by reading it to the defendant, and also attached his property.

The defendant moved to quash the return and also to quash the writ. The plaintiff moved to amend his petition and affidavit. The court permitted the plaintiff to file his amended petition and affidavit, and then took up the defendant’s motions — to quash the return and to quash the writ — and sustained both motions, and also dismissed the plaintiff’s action, and ordered the property which had been attached to be restored to the defendant. The plaintiff excepted to these rulings of the court. He filed his motion to set aside the judgment dismissing his suit, and to reinstate his action; which being denied, he brings the case here by appeal.

There was no cause to dismiss the plaintiff’s action in the court below. It was the duty of the clerk to endorse the summons on the petition, or annex the summons to the petition or a copy of the petition. Every summons must be accompanied by the petition or a copy o£ it, and the service must be by reading the petition and writ to the defendant, or by delivering to the defendant, who shall be first summoned, a copy of the petition and writ, and to such as shall be subsequently summoned, a copy of the writ, or by leaving such copy at the usual place of abode of the defendant with some white person of his family above the age of fifteen years. There was no proper service of the writ in this case, because there had not been a copy of the petition accompanying it or the petition itself, and consequently the sheriff had not either read the petition or delivered a copy of it to defendant. Under this stage of the proceedings, the plaintiff could not have taken properly a judgment against the defendant. But after the defendant made his motion to quash the return, and to quash the writ, he was in court, and the court ought not to have dismissed the plaintiff’s suit.

It might have continued the cause until the next term without requiring the defendant to plead, and required the plaintiff to furnish the defendant a copy of his petition in order that he might be prepared to plead at next term; and had the court below stopped at the quashal of the return of the writ, and then required the plaintiff to continue his suit and have a copy of the petition served on the defendant in order that he might be prepared to plead at the next term, there would have been no just grounds of complaint. But the court did not properly dismiss the plaintiff’s action. The attachment was not properly served. This court will therefore reverse the judgment of the lower court in dismissing the plaintiff’s suit, remand the cause with directions to reinstate the action, and then let it proceed as an ordinary suit;

Judge Scott concurring herein.


text:
    Allison, Defendant in Error, v. Darton, Plaintiff in Error.
    1. A finding of facts by a court, to authorize a judgment, must be a finding of the facts put in issue.

      Error to Jackson Circuit Court.

      Hovey, for plaintiff in error.
    I. The court below did not find facts which- constitute a wrongful detainer, but assert the legal conclusion that “ defendant wrongfully detained said pony.” There is no finding of the fads. (See Practice Act, 1849, art. 15, sec. 2.)
    II. The finding shows a total failure of proof of the charging part of the petition, and then makes a new case for the plaintiff below, of which defendant below had no notice. (See Link v. Vaughn, 17 Mo. 585 ; Beck v. Berrara, 19 Mo. 30 ; Egert v. Wickee, 10 How. Prac. R. 193.)
    III. Where the original taking is not found to be unlawful, a demand and refusal must be found in order to constitute- an urn? lawful or wrongful detainer. (See 2 Starkie on Ev. 839.)

      JVapton, for defendant in error.
    I. The petition, in averring that defendant has not returned-the same, although often 1-eq.uested so to do, is substantially an averment of a wrongful detainer, and the affidavit is in exact accordance with the statute. The finding of the court is responsive to this allegation, and the allegation of wrongful taking is altogether immaterial.
    IÍ. If the cause of action is held to be imperfectly or inarti-ficially stated, the verdict cures the defects upon the presumption that the court or jury found all the facts essential to maintain the action. This could not be so if no cause of action at all was stated ; but here is a good cause of action — the wrongful detainer, and the plaintiff’s right of property and possession.
    III. The facts charged in the petition are found, to-wdt, that plaintiff was the owner and entitled to possession, and that defendant was in possession, and that his possession was wrongful. No greater degree of detail is requisite in the finding of a court than in the averments of a petition.
   Ryland, Judge,

delivered the opinion of the court.

This was an action brought by Allison against Darton in the Circuit Court of Jackson county to recover a pony. The plaintiff in bis petition alleged that on tbe 6th day of January, A. D. 1855, at the county of Jackson, the defendant, without leave, wrongfully took the following property of the plaintiff, and has not returned the same, although often requested so to do, that is to say, one white stud pony, four years old last spring ; by which the plaintiff says he is damaged in the sum of sixty dollars, and asks judgment that said pony be delivered up to him by said defendant, and such other relief, &c.

The defendant appeared and filed his answer, denying that he took the pony without leave wrongfully, and denies that plaintiff is damaged to any amount whatever. He states that some time in November, A. D. 1854, one Thomas Leonard sent the white stud pony in controversy, with a lot of other ponies, to the house and farm of the defendant, to be kept, fed, and taken care of, and to be paid for what the same was reasonably worth ; that defendant took charge and possession of the pony in question, together with the others, and kept, fed, and took care of, and remained in possession of the said white stud pony from the 3d day of November, A. D. 1854, until about the 9th day of January, A. I). 1855, at which time the pony was taken out of his possession by the sheriff of Jackson county, by virtue of the order and writ in this action. He stated that the keeping of said pony was reasonably worth the sum of thirteen dollars and sixty cents ; and that the same had not been paid, or any part thereof, but was still due to him. So that in fact be says that he was and is entitled to the possession of same white stud pony by reason of his lien on him for his said keeping, feeding, and taking care of him; and prays judgment, &e.

The cause was tried by the court without a jury, and the following is the finding of the facts by the court: “ That before and at the time of the institution of this suit, plaintiff was the owner of, and entitled to the possession of the white stud pony in the plaintiff’s petition described and sued for ; and that defendant, before and at the time of the commencement of this suit, was in possession of said pony, and wrongfully detained said pony from plaintiff; and the court thereupon declares the law to be for plaintiff, and accordingly finds for plaintiff. The defendant moved in arrest of judgment, which being overruled, he excepted, and brings the case here by writ of error.

The plaintiff in error contends that the finding of the facts in the case by the court is not sufficient to warrant the judgment. In the opinion of this court, this objection is well taken. The plaintiff in his petition charges an unlawful taking, and that defendant still detains the property. The defence is a denial of the wrongful taking, and a delivery lawfully to the defendant, and that he has a lien upon the property for the keeping and feeding of it. The finding is that defendant did wrongfully detain the property. This is not a sufficient finding of the issue. The court says nothing about the wrongful taking— nothing about the feeding and taking care of the pony by the defendant, and the lien therefor. This can scarcely be considered a finding of facts. The facts in issue should have been found, and not a conclusion of law. (Bates v. Bower, 17 Mo. 550; Farrar v. Lyon, 19 Mo. 122; Walsh v. Edmonson’s Ex’r, 19 Mo. 142; Javens v. Harris, 20 Mo. 262.) Where there is not a sufficient finding of facts to authorize the judgment, this court will reverse. The facts put in issue should be found — not the evidence nor conclusions of law.

This judgment must be reversed. The other judges concurring, it is reversed, and cause remanded.


text:
    Shroyer, Respondent, v. Barkley, Appellant.
    1. Where a party to a submission to arbitration failed to attend upon the arbitrators at the time and place appointed for the hearing of the matters submitted ; held, that it was not error to refuse to vacate the award made upon a motion made under section 9 of the act concerning arbitrations, (R. C. 1845, p. 121,) the ground of which was that the failure to attend at the hearing was unavoidable by reason of the obstruction of the roads, caused by the rise of the water courses.

      tdppeal from Saline, Circuit Court.

      JVctpton, for appellant.
    I. The unavoidable absence of Barkley, after using due diligence, he having at the time a meritorious defence, comes within the spirit and meaning of the 9th section of the act concerning arbitrators,.
    II. If it dóes not, the court has the power and it is its duty to vacate an award rendered under such circumstances. This power is inherent in all courts, and the statute was not needed to give it, and will not be construed to take it away unless the language be plain and unequivocal, and it admit of no other construction. (In the matter of Hick, 8 Taun. 794 ; Hollings-worth v. Lieper, 1 Dallas, 161; Chapman v. Hirwan, ib. 187 ; Peters v. Newkirk, 6 Cow. 103; Falconer v. Montgomery, 4 Dali. 284 ; Bedington v. Suithwell, 4 Price, 282 ; 2 Chitty, 44; Salk. 71; Caldwell on Arb. 45, 118, 124, 210 ; Lutz v. Luthecum, 8 Pet. 178-9 ; Craig v. Hawkins, Harden, 46 ; Tonance et al. v. Amsden & Chapman, Tidd, 841; 3 McLean, 509, 515.)
    II. If section 23 of our statute is to be understood as still reserving the right of action upon the arbitration bond and the award, and also the power of a court of chancery over these ■awards, as it existed in England, then it is manifest that in accordance with the authorities in England and this country, the judge should not enter a judgment, but leave the parties to their respective remedies, if he entertained doubts about the question of diligence. (Tidd’s Prac. 889.) But chancery has no jurisdiction, unless the grounds of relief are discovered after judgment on the award. (Waples v. Waples, 1 Harrington, 392.)
    III. It is manifestly the intent of our statute that the court which is called upon to vacate or to enter judgment upon an award, has all the powers which a court of equity would have in a distinct application. This was the English practice: where the application was made in due time under the statute, and the arbitration or submission was made a rule of court, every ground of relief in equity against an award was equally open in a court of law. (2 Tidd.)
    Garden-hire, for respondent,
    cited R. C. 1845, p. 122, § 2, 9, 12; 7 Yerg. 239 ; 10 id. 202 ; 2 J. J. Marsb. 346 ; 2 Johns. Oh. 551; 1 Day, 153 ; 3 Rand. 122 ; 1 Wash. (Ya.) 156, 11; 3 Harr. & Mellen. 141; 7 Conn. 536 ; 2 Gall. 61; 1 Root, 197 ; 8 Greenl. 119, 288 ; 6 Pick. 148 ; 10 id. 348 ; 8 Mass. 410 ; 9 Mo. 29 ; 1 Yes. Ch. 365 ; 6 id. 282; 9 id. 365 ; 2 id. 15 ; 12 id. 412 ; 21 Pick. 417.
   RylaND, Judge,

delivered the opinion of the court.

This was a submission of certain matters in chancery between the parties, to the award of two persons chosen by them. The submission was in writing, dated 3d of July, 1854, and the award was to be made and published on or before the 1st day of October, 1855. The arbitrators fixed several different days and times for the hearing, which was postponed for good cause, until at last they fixed the 17th day of September, 1855, as the time for hearing and determining the matters. The court-house in Marshall, in the county of Saline, was the place of meeting. The parties were duly notified, and on the day and at the place Shroyer met the arbitrators, but Barkley did not. The arbitrators proceeded to hear and to decide the matters in the absence of Barkley, and made their award in writing agreeably to the terms of the submission. At the November term of the Circuit Court of Saline county, in 1855, the next term after the award was made, Shroyer produced the award and submission, and moved that a judgment of the court be made and had thereon, and Barkley appeared at the same term, and moved the court to vacate and set aside the award. Barkley stated five causes for his motion, and supported his motion by his affidavit. The court heard the motions of the parties and the testimony produced thereon for and against, and overruled Barkley’s motion, and sustained Shroyer’s motion, and made the award of the arbitrators a judgment of the court according to the terms of the submission. Barkley excepted, and brings the case here by appeal.

The principal ground relied upon by Barkley for vacating the award was bis absence, and his alleged inability to meet the arbitrators at Marshall on the 17th September, 1855, on account of high waters. The second cause assigned for setting aside and vacating the award is as follows : “ Because the award was obtained and made by undue means, in this, to-wit,. that the said Barkley resided in Benton county, and at the time, the award was made, and the hearing had before the arbitrators, he was prevented from attending the hearing by recent, high waters and floods. He states that the creeks and watercourses were so high from rains, that he could not possibly attend the hearing, and that there was an ex parte hearing had in his absence ; that advantage was taken of his absence by the said Shroyer and the arbitrators ; that if his part of the case had been presented and proved, no such award could have beenf given i that he could have produced evidence, and would have done so, to establish his accounts and to disprove those of the said Shroyer, but was prevented from doing so by the act of God aforesaid ; that in order to have the case fully and fairly presented to them, it became and was the duty of the arbitra-tora to postpone the hearing to a further time, until the waters subsided, so that the said Barkley could attend; but the said. Shroyer and the said arbitrators, well knowing the premises,, proceeded in his absence and made up said award, which is unjust, and was procured as aforesaid by undue means.” There is nothing in any of the other causes assigned to vacate the award. The affidavit of Barkley is as follows: “Now at this day comes William D. Barkley, who makes oath and says that in a matter of dispute between this deponent and Presley Shroyer, wherein certain matters of difference were referred to; the arbitrament of Edward Garnett and Randal' Latimer; and whereas said arbitrators in the above cause, agreeably to a time fixed upon by themselves, to-wit, on the 17th day of Septem-líber, A. D. 1855, met in the town of Marshall, on the day last ¡aforesaid, at which time this deponent was notified to be present ; but this deponent states that he was unable to attend and i-be present at the time and place mentioned, because there were ■sundry creeks and streams intervening between his place of residence — which is Warsaw, Benton county — and the town of Marshall in Saline county; that he, the deponent, had made every ¡necessary arrangement and preparation to attend the sittting of ¡the arbitrators and- the investigation between himself and • Shroyer ; that about the time this defendant was ready, and about starting to Marshall, there were heavy and considerable ■falling of rains ; that the streams, that is to say, Flat creek ¡and others, were swollen to such a height that it was impossible ¡for the deponent to pass or cross them without endangering his life ; that the streams aforesaid remained in that condition for ¡several days ; there were no bridges or ferries across said '■streams, for want of which all communications were cut off ¡¡and suspended between Warsaw and Marshall for several days. This deponent says that as soon as the water-courses referred to permitted the deponent hastened on to Marshall, but arrived too late to be present and attend the trial aforesaid; that it was no fault of the deponent that he was not present at the 'trial: he was anxious to be present; that he had claims and demands against said Shroyer, which were meritorious and just; that if he had been present, as he desired to be, that he had no doubt but that he could have shown himself entitled to an award for a large amount of money ; but by reas'on of his unavoidable absence an award has been entered up against him for a large ¡amount. This deponent says that if he could have been present at the trial aforesaid, he had witnesses by whom he could have proven that the claims set up by Shroyer were unjust and had no foundation in law or equity ; that Shroyer was fully aware of the condition of the water-courses, but, for the purpose of taking an obvious advantage of the absence of this deponent, insisted upon the trial of this cause in his absence, which enabled him to obtain an undue advantage over deponent. This deponent further states that if be can obtain a new trial it will enable him to recover from said Shroyer a large amount of money, which he is legally and equitably entitled to ; and without a new trial this deponent will be forever barred and prevented from a recovery of his just claims, and be subjected to the payment of the unjust award made by the arbitrators, which was obtained and procured by undue means, and ought to be set aside and vacated; and this affiant prays the court to vacate and set aside the said award. He states that the award and hearing was had, and the award made, in the absence of this affiant, and was based wholly upon an ex parte hearing, this affiant not being present in person or by agent or attorney, but was prevented from being there and from having his proof before the "arbitrators by the act of God, as hereinbefore set forth.”

The testimony offered was in relation alone to the high waters, and upon this subject the testimony as to the practicability of travelling from Warsaw to Marshall is somewhat conflicting; at least there is great doubt of the reasonableness of Barkley’s excuse, for there is positive proof of the fact that several persons did pass from Saline county to Warsaw and back about the time Barkley ought to have done so. And although Barkley’s counsel argued the matter before this court as if the Circuit Court had found the fact to be that Barkley was not able to attend the arbitrators at Marshall, on the 17th September, 1855, by reason of the high water and flood, and as if he had been prevented from doing so by the act of God, yet the record does not show that such was the opinion of the Circuit Court; for no such fact is proved, or even intimated by the Circuit Court. Indeed, in our opinion, the evidence would well have justified the court in finding to the contrary. The question, then, presented by this record is, will the absence of Barkley afford a sufficient reason to vacate the award in this case, under the circumstances ? In our opinion, it will not. He was duly notified ; his absence is his own neglect or misfortune. If he had gone before the arbitrators and made his excuse then, even after tbe day appointed for the meeting, and asked for a re-opening of the hearing, or for permission then to offer his evidence, and they had refused him, the case would have presented a different aspect. But here is nothing done; he is simply absent because the water-courses are flush or high, and depends alone upon that subject for vacating the award. There is nothing of undue means used by Shroyer, or of improper or undue means on the part of the arbitrators. They had postponed the meetings from time to time until less than two weeks remained for them to act, and we can not say, from all the facts appearing on the record, that the Circuit Court committed error in giving judgment on the award. There is no ground for supposing that the award was procured by corruption, fraud or other undue means. The arbitrators met on the 10th of August, 1855, and appointed 17th September for the meeting and hearing of the parties. The parties were duly notified of the time and place, and there is no ground'to suppose that the arbitrators or Shroyer anticipated any obstruction by means of high waters, or any other means, to the meeting or attendance of the parties at that day.

These tribunals are of the parties’ own making, and their decisions are looked upon by the courts with favor. The arbitrators are chosen to prevent tedious and expensive litigation— are selected as the judges of the parties, and their awards have ever been favored in our courts. Corruption, fraud or other undue means are necessary to be proved or be made to appear before the courts will vacate the awards. There is no ground here to impute any improper act to the arbitrators, or misbehavior on their part to the prejudice of Barkley. There is no proof of any undue means or any unfair or fraudulent practices on the part of Shroyer to induce the arbitrators to make the award; and whether the courts of our state will go beyond the causes mentioned in the 9th section of our act, or not, in vacating or setting aside the awards of arbitrators, is not the question here presented. But did the facts, as set forth on the record, authorize the court to render judgment on the award ?

We have not the least hesitation in stating that, in our opinion, the court below properly overruled Barkley’s motion and sustained Shroyer’s. The judgment will therefore be affirmed; the other judges concurring.


text:
    The State, Plaintiff in Error, v. Bridges, Paris & Smith, Defendants in Error.
    1. An indictment under section 27 of article S of the act concerning crimes and punishments (B,. C. 1845, p. 404,) may be good, although the sum bet on the result of (he election may not be stated therein. ■

      2: An indictment under said section charged in the same count A. and B. with betting on the result of an election, and C. with becoming stakeholder of said bet$ /¡eld, that the indictment was defective, said offences being distinct and separate offences.

      Error to Lawrence Circuit Court.

      Ewing, (attorney general,) for the State.
    I. The amount of money bet is immaterial, and was not tra-versable. The indictment follows the language of the statute. (R. C. 1845, p. 404.)
    II. Several offenders may, for different offences of the same kind, be in some cases included in the same indictment, the word severally being inserted, which makes it several as to each ; but they must admit of the same plea and sentence. (Chitty C. L. 270.) The word severally is not inserted in this indictment, but the offences are severally stated and admit of the same plea and sentence.
   Rylakd, Judge,

delivered the opinion of the court.

The defendants were indicted by the grand jury of Lawrence county, at the October term of the Circuit Court, in the year A. D. 1854, — Bridges and Paris for betting on the result of an election, and Smith for holding the stakes or money bet. The defendants appeared to the indictment, and moved to quash it; the court sustained the motion. The State, by her circuit attorney, excepted, and brings the case here by writ of error. The indictment is as follows : The grand jurors for the State of Missouri, impannelled, &c., for the body of the county of Lawrence, upon their oath present that Guilford Bridges and Eli G. Paris, late of said county, heretofore, to-wit, on the third day of August, A. I>. 1854, with force and arms, at the county of Lawrence, and state of Missouri, did then and there unlawfully bet and wager a sum of money on the result of an election, which was held on the first Monday in August, A. D. 1854, in the county of Lawrence, and state of Missouri, between one John C. Price and Robert B. Taylor, who were then running as candidates to represent tbe county of Lawrence, in the state of Missouri, in the legislature of the state of Missouri j said election being then and there authorized by the constitution of the state of Missouri, and by the laws of the state of Missouri.

“ And the jurors aforesaid, upon their oath aforesaid, do further present, that one Abram T. Smith, late of the county aforesaid, on the day and year first aforesaid, with force and arms, at the county and state aforesaid, did then and there unlawfully and knowingly become stakeholder of said bet and wager by then and there receiving said money from the said Guilford Bridges and Eli G. Paris, and holding the same until the result of said election could be ascertained, contrary,” &c.

This indictment is founded on the 27th section of article 8 of the act concerning crimes and punishments. (R. C. 1845; p. 404.) “ Every person who shall bet or wager any money or property or other valuable thing on the result of any election authorized by the constitution or laws of the United States or of this state, or on any vote to he given at such election, or who shall knowingly become stakeholder of any such bet of wager, shall be punished by fine not exceeding fifty dollars. The court below having quashed the indictment, it becomes necessary to examine and determine whether the same be sufficient or not.

The indictment does not allege that Bridges and Paris bet with each other in express terms on the result of the election ; but such is obviously the fair intent and meaning of the charge, and it must be understood that they bet with each other. It does not mention the amount or sum of money or other thing bet; we think this omission does not vitiate it. No doubt it is the safest and best course to pursue, in drawing indictments under this statute, to state the amount or sum bet; but the amount is not material. There is no necessity to state a venue to the election on the result of which the bet was made; so that the repugnancy or uncertainty arising from the statement of two dates or times before and then referring to one of them by using the words then and there,” in this indictment, does not vitiate it. It is sufficient to aver that the election was authorized by the constitution and laws of the state of Missouri, without saying “ then and there.” There is no necessity to put a venue to the authority by which the election was held, go there is nothing of weight in this objection. Then why did the court below quash the indictment? We suppose because there is but one count in it, and there are two distinct and separate offences charged in this count against three different persons. One offence is, the betting by two of these persons, which is complete before the other offence can arise. The other offence is the holding of the stakes or sum bet, and is totally different from the betting. There is no connection between these two offences ; they are independent of each other; and, although divers persons may be indicted for an offence jointly committed by them in one count of the same indictment, yet we think it is not allowable to indict divers persons for separate, distinct and different offences in the same count of the indictment ; therefore as the Circuit Court quashed this indictment, we will not reverse its judgment. The judgment is affirmed; the other judges concurring.


text:
    The State, Plaintiff in Error, v. Bridges, Paris & Smith, Defendants in Error.
    1. See the State v. Bridges, Paris and Smith, ante, p. 353.

      Error to Lawrence Circuit Court.
    Ewing, (attorney general,) for the State.
   RylaND, Judge,

delivered the opinion of the court.

. This indictment is against Bridges and Paris for betting one hundred dollars on the result of the congressional election, held in August, 1854, between John S. Phelps and Waldo P. Johnson, and against Abram T. Smith, for holding the stakes bet. There.is but one count. The defendants appeared and moved to quash the indictment. The court sustained the motion ; the circuit attorney excepted, and brings the case here by writ of error. This indictment is similar to the one in the case just decided against the same defendants, and is liable to the same objection as to misjoinder. The amount bet is mentioned in this indictment. We refer to the opinion just delivered in the case of the State v. Bridges, Paris and Smith.

The judgment must be affirmed ; the other judges concurring.


author: Rylaítd, Judge,

text:
    The State, Plaintiff in Error, v. Smith & Nicholas, Defendants in Error.
    1. An indictment under section 27 o£ article 8 o£ the act concerning crimes and punishments (R. C. 1845, p. 404), charging A. and B. with betting on the result of an election, is good, although it be not expressly charged that they bet with each other.

      Error to Lawrence Circuit Court.

    Ewing, (attorney general,) for the State.
   Rylaítd, Judge,

delivered the opinion of tbe court.

The defendants were indicted for betting on the result of an election held for the purpose of electing a representative in Congress. The defendants appeared and moved to quash the indictment. The court sustained the motion and quashed the indictment. The circuit attorney excepted, and brings the case here by writ of error. The indictment is as follows : “ The grand jurors for the State of Missouri, within and for the body of the county of Lawrence, upon their oath present, that one Abram T. Smith and Russel B. Nicholas, late of said county, heretofore, to-wit, on the 8th day of August, A. D. 1854, at the county of Lawrence, and state of Missouri, with force and arms, did then and there unlawfully bet and wager a sum of money, to-wit, one hundred dollars, on the result of an election which was held on the first Monday in August, A. D. 1854, between one John S. Phelps and Waldo P. Johnson, who were then running as candidates to represent the sixth congressional district in the state of Missouri, in the Congress of the United States of America; said election being then and there authorized by the constitution of the United States of America, and by the laws of the state of Missouri, contrary,” &c. This indictment is substantially good. The sum here bet is mentioned; the defendants, though not charged expressly with betting with each other, yet must be so understood to have bet; there is no averment that they bet with any other person or persons, and the plain import of the charge is, as alleged in this indictment, that 'they bet with each other. The venue to the authority by which the election was held is not necessary, is useless, and it can not have the effect of rendering the indictment uncertain or repugnant because two different times have previously been stated in the indictment. (See the opinion just delivered in the case of the State v. Bridges et al.)

The court below did commit error therefore in quashing this indictment; its judgment is reversed, and the cause remanded ; the other judges concurring.


author: Ryuand, Judge,

text:
    The State, Appellant, v. Hayes, Respondent.
    1. Time and place should he stated in an indictment with certainty. An indictment which, after stating several different times, charges that the defendant “then and there” committed the offence, &c., Í3 had for uncertainty.

      •Appeal from Polk Circuit Court.

    Ewing, (attorney general,) for tbe State.
    I. Time and place are alleged with sufficient certainty to every material averment. (1 Chitty C. L. 220 ; Commonwealth v. Wentz, 1 Ashm. 269 ; Commonwealth v. Dedham, 16 Mass. 141; United States v. La Coste, 2 Mason, 140.)
    II. The indictment is sufficient without averring or setting out any order of the court or judge for the warrant. (State v. Copp, 15 N. H. 214; 2 Chitty C. L. 831 ; 4 T. R. 366; Archb. C. P. 356; 5 T. R. 607; 3 T. R. 682 ; 3 Gilman, 76.) It is not necessary to set out the process so as to show it to be valid. The State, on the trial, could not introduce invalid process in evidence. It is sufficient to describe the process so as to identify it. (Slicker v. State, 8 Engl. 397 ; United States v. Clark, 1 Gall. 497.)

      F. P. Wright, for respondent.
    I. The court did not err in quashing the indictment. There are several times previously laid in the indictment, and the venue as to the attempt to rescue is laid by the words “then and there.” The law is well settled that when two different times are mentioned in an indictment, and a material fact is afterwards averred, it will not be sufficient to give venue to such fact by stating “ then and there” only. (State v. McCracken, 20 Mo. 411 ; State v. Hardwick, 2 Mo. 228 ; Jane v. The State, 3 Mo. 63 ; 1 Chitty C. L. 179 ; 1 Archb. C. P. 83.)
    II. The indictment does not show, nor does it appear on the record that the court or any judge made any order authorizing the clerk to issue the warrant under which the person-indicted was arrested. (R. C. 1845, p. 870.) This presents the question whether the warrant was not void and the proceedings of the sheriff, in making the arrest, illegal. The warrant was also issued in November, 1852, and is made returnable in April, 1852. An indictment for a rescue must show that the person rescued was lawfully in custody, and set out the writ and warrant. (1 Hale P. C. 606 ; Stark. Cr. PL 156; Archb. C. L. 550 ; Rex v. Mead, 2 Stark. 205 ; see form of indictment for rescuing prisoner held on indictment in 2 Chitty C. P. 197 ; Rex v. Burbridge, 3 P. W5ms, 439, 499 ; Rex v. Osmer, 5 East. 304.)
   Ryuand, Judge,

delivered the opinion of the court.

The defendant was indicted for feloniously attempting by force to set at liberty and rescue one Harris Hear out of the custody and against the will of the sheriff of Cedar county, by feloniously, with force and arms, assaulting the said sheriff and by seizing hold of him, the said William Montgomery, the sheriff as aforesaid. The indictment charges that the clerk of the Circuit Court of Cedar county, did, according to law and the statutes in such case made and provided, on the 10th day of November, A. D. 1852, issue a certain warrant under his hand and the seal of the Circuit Court of said county, directed to the sheriff of said county, thereby commanding him, the said sheriff, to take the body of Harris Gear, and him, the said Harris Gear, safely keep, so that he have the body of said Harris Gear at the next term of the Circuit Court for said county of Cedar, to be held at the court-house, in the town of Fremont,'on the fourth Monday after the fourth Monday in March, A. D. 1852, then and there to answer unto the State of Missouri upon an indictment against him, the said Gear, for a felonious assault, with intent to kill, upon the body of one William Eversole. The indictment charges that the warrant came to the hands of the sheriff of Cedar county, William Montgomery, Esq., on the 10th day of February, A. D. 1853, to be executed ; and that the said sheriff afterwards, to-wit, on the day and year last aforesaid, at the county of Cedar aforesaid, as such sheriff, did then and there arrest and take into his custody the said Harris Gear, according to the command of the said warrant, and then and there had the said Harris Gear in his lawful custody by virtue of the said warrant, and the said Harris Gear being so arrested and in the care and custody of the said William Montgomery, sheriff as aforesaid, one John Hays, late, &c., afterwards, to-wit, on the day and year aforesaid, at the county of Cedar, aforesaid, he, the said Harris Gear, so being in the custody of the said William Montgomery, as such sheriff, and for a felony as set forth in said warrant, he, the said John Hays, did then and there feloniously attempt by force to set at liberty and rescue the said Harris Gear out of the custody and against the will of him, the said William Montgomery, by then and there felo-niously and with force and arms assaulting the said William Montgomery, and by seizing hold of him and then and there holding him, and by other means and force, to-wit, on the day and year aforesaid, at the county of Cedar aforesaid, contrary, &c.

The defendant appeared to the indictment, and upon his petition the venue was changed from Cedar Circuit Court to the Circuit Court of Polk county. In the Polk Circuit Court he appeared and demurred to the indictment, stating for causes of demurrer that the said indictment is defective and uncertain as to the time wrhen said supposed offence was committed, several times having been previously mentioned in said indictment, and it is unknown and uncertain to which of the times the “ then and thére” refers. It is not alleged that any order of the Circuit Court or of any judge had been made for the issuing of said warrant. The court sustained the demurrer to the indictment. The circuit attorney brings the case here by appeal.

This indictment, according to the previous decisions of this court, is not sufficient.* Here two or three different times have been mentioned, and then the offence is charged to have been “ then and there’’ committed. (State v. Hardwick, 2 Mo. 228; Jane v. The State, 3 Mo. 63; State v. McCracken, 20 Mo. 411.) The demurrer was therefore properly sustained. The objection taken to the issuing of the capias or warrant, as alleged in the indictment, is not well taken. The indictment avers that the clerk issued the warrant under the seal of the court, according to the statute law in such cases made and provided. The capias, being under the seal of the court, is to be considered the act of the court through its clerk. The judgment below must be affirmed ; the other judges concurring.


text:
    The State, Plaintiff in Error, v. Goode, Defendant in Error.
    1. An indictment was- in the following form ; “ The grand jurors for the State of Missouri, for the body of Putnam county, sworn, upon iheir oaths present, that B. E. G., late of Putnam county aforesaid, on the first day of October, in the year 1855, at the county aforesaid, did then and there unlawfully buy a certain commodity, to-wit, five deer skins, then and there of the value of five dollars, of a certain slave, called John,” &c. Held, that a venue was properly laid to the commission of the offence.

      Error to Putnam Circuit Court.

      Ewing, (attorney general,) for the State.
    I. The venue was sufficiently laid, (8 Mo. 283 ; 10 ib. 743 ; 19 ib. 386.)
   RylaND, Judge,

delivered the opinion of the court.

Benjamin E. Goode was indicted by the grand jury of Putnam county, at the October term of the Circuit Court for said county, in the year A. D. 1855, for buying of a certain slave a certain commodity (deer skins) without the consent in writing of the master, owner or overseer of said slave first had and obtained. The defendant appeared to the indictment and moved to quash it for want of venue to the commission of the offence. The court sustained the motion, and quashed the indictment; the circuit attorney excepted, and brings the case here by writ of error. The indictment is as follows-:

“ The grand jurors for the State of Missouri, for the body of Putnam county, sworn, upon their oath present, that Benjamin E. Goode, late of Putnam county aforesaid, on the first day of October, in the year of our Lord eighteen hundred and fifty-five, at the county aforesaid, did then and there unlawfully buy a certain commodity, to-wit, five deer skins, then and there of the value of five dollars, of a certain slave called John, then and there being the property of William B. Jones, of which said slave, called John, he, the said William B. Jones, was then and there and still is the owner, without the consent in writing of the master, owner or overseer of said slave being by him, the said Benjamin E. Goode, rhen and there first had and obtained then and there, to authorize him, the said Benjamin E. Goode, to then and there buy the commodity aforesaid of the said slave, contrary,” &c.

The defendants motion to quash was “ for the reason that said indictment does not lay any venue to the commission of the offence charged in the indictment.”

There is not the slightest pretence to sustain this motion. Here are some six different statements of venue in one short indictment for one breach of one statute prohibiting any person from buying any commodity of a slave without having t'he master’s, owner’s or overseer’s permission in writing therefor.

It is a subject of serious regret that so many indictments have been brought before our court by the improper action of the lower courts in quashing them for mere trifling informalities. It is to be hoped that this practice will change; that circuit attorneys will be more observant and particular in drawing indictments, and that the courts will be more careful not to quash indictments substantially good.

The judgment must be reversed, and the cause remanded for further proceedings ; the other judges concur.


text:
    The State, Plaintiff in Error, v. Arbogast, Defendant in Error.
    X. An indictment charging the defendant — one M. A. — with selling “ intoxicating liquors in a quantity [ ] than one quart, to-wit, one-half pint of whisky, of the value, &c., and one-half pint of brandy, of the value, &c., to one T. W. C.,” &c., “ without the said M. A. then and there first taking out and having a license as a dram-shop keeper, according to law, or any other lawful authority, contrary,” &c., is sufficient. The word “ less ” having been omitted, the averment under the videlicet becomes material, and muust be proved as laid.

      Error to Grundy Circuit Court.

    Ewing, (attorney general,) for tbe State,
    cited State v. Edwards, 19 Mo. 674.
   RylaND, Judge,

delivered tbe opinion of tbe court.

Michael Arbogast was indicted by the grand jury of Grundy county, at tbe Circuit Court, at tbe April term, 1855, for selling intoxicating liquors without license. Tbe defendant appeared and moved to quash tbe indictment. His motion was sustained, and tbe indictment quashed. Tbe circuit attorney excepted to ' tbe decision of tbe court, and filed bis bill of exceptions, and brings tbe case here by writ of error. Tbe question then before us involves tbe sufficiency of tbe indictment, which is in substance as follows: Tbe grand jurors of tbe State of Missouri, for tbe body of Grundy county, duly impannelled, sworn and charged, upon their oath present, that Michael Arbogast, late, &c., on &c., at, &c., aforesaid unlawfully, did directly sell intoxicating liquors in a quantity than one quart, to-wit, one-half pint of whisky, of the value of ten cents, and one-half pint of brandy, of tbe value of ten cents, to one Thomas W. Cooper and divers others persons, then and there being, without tbe said Michael Arbogast then and there first taking out and having a license as a dram-shop keeper, according to law or any other lawful authority, contrary, &c.

The indictment is drawn carelessly, and without precision; the pleader intended, no doubt, to place the word “ less” between the words “ quantity” and “ than ;” but his failing to do so does not necessarily render the indictment deficient. Here the averment as to quantity under the videlicet — the “ to - writ” — is material, and the State will be held to proof of the fact as alleged; and thus understood, the indictment in substance charges the defendant with selling a half pint of prohibited liquor without a license, and this is sufficient. The averment “ without talcing out and having a license as a dram-shop keeper, according to law or any other lawful authority,” we consider sufficient to negative the idea of the defendant’s having any license of any kind authorizing him to sell intoxicating liquors. In this indictment the averment as to the quantity sold, though coming after the “to-wit,”is to be considered material, and the State must prove the quantity as laid, and without such proof there would be a variance between the charge and proof, and the defendant would be entitled to his acquittal. The general rule in relation to allegations under a videlicet or scilicet seems to be this : if they be impossible or contrary or repugnant to the preceding matter, they shall be rejected as surplusage and void. But when they are used to explain what goes before them, and are consistent with the preceding matter, then they are material and traversable. “It is the office of a videlicet,” says L’d Hobart, in Stukely v. Butler, Hob. 172, “ to particularize that which before is general, or distribute that which is gross, or explain that which is doubtful or obscure.” (Gleason & Gleason v. McVicker, 7 Cow. 42; Knight v. Preston, 2 Wilson, 335; 2 Saunders, 291, a.) “ It is clear that when the matter alleged is material and traversable, and must be stated with exactness and certainty, the statement of such matter under a videlicet will not avoid the consequences of a variance or repugnancy if the matter be misstated, and there would be a fatal variance in the absence of the videlicet; and this, whether the matter be the consideration or promise in the case of a contract, or be time or place when material, or relate to other subjects.” (Note to 7 Cow. 45; 1 Sand. 170, n. 2; 2 Saund. 290; 1 Chitty C. L. 324; 1 Chitty’s Prac. 317.) It is material to aver some quantity sold, and generally speaking the quantity is so laid in the indictment that proof is not required of the exact amount, viz., in a quantity less than ten gallons, to-wit, one quart or one pint. But here the quantity is not charged to be less than one quart, to-wit, one-half pint, but is charged to be one-half pint, and, although charged under the “ to-wit,” is a positive affirmative charge, material and traversable, and must be proved as laid. A videlicet will not avoid a variance in an allegation of material matter; neither should the omission of it create the necessity of proving precisely a stated matter, which would not otherwise require such precise proof.

The indictment in this case is good, and the court below erred in quashing it. The judgment is reversed, and the cause remanded ; the other judges concurring.


author: Rxlahd, Judge,

text:
    The State, Defendant in Error, v. Dickerson, Plaintiff in Error.
    1. In an indictment for obstructing and resisting a constable in the execution of process — a writ of execution which is set forth in the indictment — it is ■ not necessary to allege that a judgment was rendered upon which said writ-of execution issued.

      Error to Moniteau Circuit Court.

      G. T. White, for plaintiff in error.
    Ewing, (attorney general,) for the State.
   Rxlahd, Judge,

delivered the opinion of the court.

The defendant was indicted for unlawfully, knowingly and-wilfully obstructing, resisting and opposing a constable in the-service and execution, and in the attempt to serve and execute- and levy a writ oí execution, to the constable directed, commanding bim to levy the same of the goods and chattels of one E. Whitman-, in- order to make the sum of seventeen dollars and twelve cents, besides costs, which one David E. G. Rollins had recovered in a judgment-against said Whitman, before one J. H. McClure, a justice of the peace in Walker township, in Mo-niteau county. ■ The execution is set forth in the indictment, and the various renewals thereon endorsed properly averred to have been made by the different successors of the original justice of the peace — J. H. McClure. The defendant moved to quash the indictment, which motion was denied ; he pleaded not guilty; a trial was-had ; the defendant was convicted and fined-five dollars. He moved in arrest of judgment,- which motion being overruled, he excepted, and brings the case here by writ of error. The points raised for our decision all depend upon the sufficiency of the indictment.

The indictment being very long, will not be inserted, in this opinion; but we will notice the various objections made to it. The first objection is, that the pleader has omitted to state that there was any judgment ever had and rendered before any competent court on which the writ of execution in this indictment set forth was issued. The execution is set forth, and the only mention made c-f any judgment' is that recited in the writ; but there is no averment of any judgment to enforce the satisfaction of which the- execution set forth in the indictment at first emanated. - We do not think this objection well taken. We think it sufficient that an execution was in the hands of the officer — the ■ constable — which justified him.in acting as therein required; ■and that therefore to resist an officer thus acting was an of-fence within the statute. The indictment sets forth a formal execution, and avers it was placed in the hands of -Green B. Hill, the acting constable of the township in the county of Mo-niteau, and that the defendant did knowingly, wilfully and unlawfully obstruct,-resist and oppose the said Green B. Hill, so being constable of said township, and a ministerial.' officer as aforesaid, in .the .service and execution-and.- in the attempt to serve and execute and levy said execution in tbe discharge of Ms duty as such constable and ministerial officer, by then, to-wit, on the 25th day of February, and there unlawfully, knowingly and wilfully, with force and violence, taking said goods and chattels (the goods, &c., levied on by the constable as previously averred) from the custody and possession of the said Green B. Hill, constable and ministerial officer as aforesaid, and carrying them away against the will of the said constable.

The second objection is in relation to the discrepancy of the Christian name of one of the justices who is alleged to have renewed the execution. In stating by whom the execution was renewed, the indictment charges that Y. VannOy was the successor of the justice who rendered the judgment, and then proceeds to state that the said Nathaniel Yannoy renewed the execution. This is sufficient, as it appears that the person who succeeded the original justice of the peace is the person who renewed the execution, and the discrepancy in his Christian name here does not vitiate the indictment.

There is no force in the third objection, which relates to the omission to eharge that the constable returned the execution not satisfied before the several renewals of it as alleged in the indictment. It is not necessary to the validity of the renewal that there should be a return upon it of “no goods.” “If any execution be not satisfied, it may, at the request of the plaintiff, be renewed from time to time by the justice issuing the same, or the justice to whom his docket is transferred, by an endorsement thereon to that effect, signed by him, and dated when the same shall be made,” &c. (R. C. 1845, p. 661, tit. Justices’ Courts, § 7.)

These three objections are the principal defects relied upon for arrest of this judgment below. We consider them of no force. The fourth objection is without weight; the indictment properly charges that the renewals of the execution were made by the persons, the successors respectively of the justices who had previously acted in the premises. The fifth objection, in regard to the venue, is also without force. Walker township is averred to be in Moniteau county, and these various acts of renewals and the resistance and obstructions of the defendant being charged to have been committed in Walker township is sufficient; the county of Moniteau need not be again added thereto or repeated.

The sixth objection is equally futile. The indictment is good and sufficient. It is not double. It may contain several allegations charging the acts done by the defendant. He may resist, obstruct and oppose ; he may take and carry off from the possession of the constable the property levied on, and this may be averred as showing the manner that the resistance and obstruction occurred.

The seventh objection is in regard to the want of a prosecutor’s name endorsed on the indictment, and, like the other objections already disposed of, is without force. This indictment is not for a trespass against the person or property of another, nor is it for the first offence of petit larceny, as pointed out in section 22, article 3, Practice and Proceedings in Criminal Cases. (jR. C. 1845, p. 866.) This is for a much higher offence. It is an offence against the administration of justice. It deserves a heavier punishment than a mere trespass to property or person. The law has pointed out the mode of carrying on the public justice of the country ; officers are elected or appointed to execute the judgments of our courts, and they are clothed with certain power and authority, and they are required to perform certain duties. The person then who obstructs or resists such officer in performing his duty rises up against the power of the state, and should be punished for his crime, not like a mere trespasser on the rights of another person or on his property, but as one who disregards the well-being and good of the government of his state.

In looking over the record of this conviction we find nothing requiring our interference. The judgment below is therefore affirmed ; the other judges concurring.