author: LboNARB, Judge,

text:
    City of St. Louis, Respondent, v. Foster, & West, Appellants.
    1. A superintendent of water-works in the city of St. Louis, appointed and acting under the city ordinance No. 2288, (Rev. Ord. 1850, p. 160,) received from the city register blank water-licenses, with the respective amounts stated therein, to be issued by him to individuals from whom it was his duty to collect, and pay over to the city treasurer the sums called for in such licenses ; held, that prima facie he became chargeable with the whole amount called for by the blank licenses so received by him, although the city auditor, not having received from the city register one of the duplicate receipts which it was the duty of the register to have required of the superintendent for the blank licenses delivered, had not charged said licenses to the superintendent as required by the above mentioned ordinance.
    2. In an action on an official bond against the principal and sureties, the admissions of the principal, made after the expiration of his term of office, are inadmissible in evidence against the sureties.

      'Appeal from. St. Louis Court of Common Pleas.

    Foster, one of tbe defendants in this suit, was superintendent of water-works of the city of St. Louis for two successive terms of one year each, ending the first Monday of June, 1853, and as such executed the two bonds upon which this suit is brought, with West as his security in each bond. The petition contained separate counts upon each bond. It appeared in evidence that during these two terms of ofiice, Foster, as superintendent of water-works, received from the city register blank water-licenses to a large amount; that a portion of these blank licenses were returned to the city register; that the amount paid by said Foster to the city treasurer, as the amount collected by him upon the blank licenses filled up and issued by him to individuals, left a portion of the blank licenses received by him from the register unaccounted for. There was no evidence showing that any of these blank licenses unaccounted for. by Foster were ever issued by him to individuals, or by any one authorized by him ; nor did it appear that he had ever, received any money upon said blank licenses.

      The ordinance of the city (see Rev. Ordinances, art. 6, sec. 2, p. 168,) made it the duty of the superintendent of waterworks, among other things : “ Fourth, to issue licenses to individuals for water from the water-works, and collect the charges therefor, and to pay to the city treasurer, on every Saturday, all moneys received by him for water licenses during the previous week. Fifth, to report to the city auditor, under oath, every three months, all licenses issued by him, and the amounts received therefor, and the payments made by him into the city treasury ; and, at the same time, produce to the auditor all blank licenses then in his hands, and settle the account for the quarter.”
    Article 7 of said ordinance contained the following provisions : “Sec. 1. Blank water licenses shall be furnished by the city register to the superintendent of the water-works as often as he may request, to be issued as hereinafter provided. Sec. 2. The register shall keep a register of all licenses so furnished, and shall take duplicate receipts therefor, one of which he shall immediately deliver to the city auditor, to be charged to the superintendent of the water-works.”
    No receipts whatever were taken by the city register at the time the blank licenses were delivered to the superintendent; consequently none were delivered to the auditor by the register, as required by the above cited ordinance. As no receipts for the blank licenses were delivered to the auditor, he did not charge the superintendent therewith. The superintendent never made a quarterly report to the auditor, under oath, as required by the ordinance.
    The cause was tried by the court sitting as a jury, and the court having found on one of the counts of the petition a balance in favor of the plaintiff, and upon the other count a balance in favor of the defendant, these sums were set off against each other, according to the stipulation of the parties, and a judgment rendered against the defendants, Foster and West, for •the sum of $2758 06.

      Krum & Harding and Glover & Richardson, for appellants.
    I. The eourt should have reviewed the finding, for it is assumed that Foster received the number of licenses charged against him in the register; the only evidence that he delivered any of them to applicants and received the water rates for those so issued, was given by his collectors, and, according to their testimony, all the money that he received for licenses issued was fully accounted for to the city. The licenses themselves were of no value, or least but nominal, until they were issued, and the burthen of proving that they were issued rested on the plaintiff.
    II. The case made by the averments contained in the plaintiff’s petition, is for money had and received to the use of the city — that is to say, the averments in the petition are distinct to the effect that Foster issued the number of licenses charged against him (except what he returned), and that he received the rates or money for them. There is a complete failure of proof on both these points.
    III. The court finds the fact that the plaintiff failed to prove that Foster or his collectors ever collected or received any money for licenses which have not been accounted for before this suit. The very gist of this action is, that Foster collected money for licenses and failed to account for it; and when the fact is found that he has not done so, or rather when the proof is not sufficient to establish this material fact, judgment should have been for the defendants.
    IV. The finding of the court to the effect that there was no proof that Foster or his employers • ever collected or received any money upon licenses furnished by the register, which he had not accounted for before suit, and that there was no proof that any of said licenses unaccounted for had ever been issued, is tantamount to finding that Foster had accounted for and paid to the city all moneys collected and received by him for water licenses. The judgment of the court, therefore, (being for the plaintiff,) is erroneous.

      Y. On the facts under the pleadings in this case, the superintendent is not liable for the nominal sums specified in the blank licenses delivered to him — the same as so much money collected by him. It is not charged in the petition, nor is it shown in the evidence, that the plaintiff sustained any special damage by reason of the superintendent’s failure to return blank licenses, or by reason of any other neglect of duty on his part.
    YI. If the register had taken duplicate receipts from Foster and filed one with the auditor as required by the city ordinance, then the amount might been charged against Foster as so much money to be accounted for either in money or blanks returned. But this was not done ; and, as it is only by virtue of the or- ' dinance that the blanks become a money charge, the plaintiff was not entitled to recover without proving that money was received on the blanks. Foster never gave any receipts — never was present when the licenses were issued — never assented, actually or constructively, to the data on which the blanks were charged to him as money. The plaintiffs deemed it necessary to show therefore that he received money. The plaintiff’s petition derives no aid from the ordinance. It relies on the principles of the common law, and must be sustained by them or fall. But the common law does not recognize the entries either of the register or auditor in this case as evidence of themselves ; not being made according to law, they do not fall within any implied assent of Foster to be bound by them. The case of Draffen v. Boonville, (8 Mo. 395,) was relied on by the court below to sustain the ruling. It establishes nothing against my position. That case went on the authority of United States v. Eekf'ord, (1 How. 263,) which holds that charges made up by the accounting officer, according to law, are evidence; not otherwise. The doctrine rests on an act of Congress. (Smith v. United States, 5 Pet. 292 ; United States v. Buford, 7 Pet. 29 ; Cox & Dick v. United States, 6 Pet. 202 ; United States v. Jones, 8 Pet. 374; Gilpin D. C. R. 47.)

      W. L. Williams, (city counsellor,) for respondent,
    cited Draffen v. City of Boonville, (8 Mo. 395;) United States v. Eckford’s Exc’r, (1 How. 263.)
   LboNARB, Judge,

delivered the opinion of the court.

The questions to which our attention has been mainly called in the present ease are the competency, as against West the security, of Foster’s admissions, made after the expiration of his term of service, and the sufficiency of the proof of the delivery and receipt of the water licenses, to make out a 'prima facie case against the defendants of money had and received to the use of the city.

It was the duty of the eity register to deliver to the superintendent blank water licenses from time to time, as the latter should require them, and to take duplicate receipts therefor, one of which he was required to file with the city auditor, whose duty it was thereupon to charge the superintendent with the amount thereof. The duty of the superintendent was to issue the licenses to the applicants, receive the money therefor, and pay the same weekly into the city treasury. He was also required to report quarterly, under oath, to the city auditor, all licenses issued by him, the amount received therefor, and the payments made by him to the treasurer, and to exhibit at the same time to the auditor the unissued licenses, and to settle the preceding quarter’s account between himself and the city. None of these things, it seems, were done ; none of these officers discharged their duties as required by the laws of the city; and it is argued that, although if the charges had been duly made in the auditor’s office, they would have been good evidence against the superintendent that he had received the money upon the licenses that were unaccounted for, yet that no such presumption arises here against the superintendent, the other officers having failed to discharge their duties, in this particular, as required by the ordinances of the city. We do not feel the force of this argument. If all the officers, engaged in these transactions, had properly discharged their duties, then no doubt the eharges on the auditor’s boohs against the defendant would have been sufficient prima facie evidence against him of indebtedness for the balance due upon the licenses delivered, after deducting the amount paid by him into the treasury, and the unissued licenses exhibited by him to the auditor. But we do not see how the failure of the register or auditor to do their duty excused the superintendent from making to the auditor the quarterly report of money received by him, and of the money paid into the treasury, accompanied by an exhibition of the licenses remaining in his hands unissued ; and his failure to do so, or to otherwise account for the unissued licenses, is sufficient prima facie evidence that he received the money upon all the licenses delivered to him, and it was therefore his duty upon the trial to account for all the licenses shown to have been received by him. Of course, this made out only a prima facie case against him, and he was at liberty to meet it by showing what had in fact become of the licenses upon which the money had not been paid into the treasury ; but, in tbe absence of such proof, the fair presumption, from the receipt of the licenses and the failure to account for them according to law, or otherwise, must stand.

The judgment, however, we think, must be reversed, because the court received in evidence against the surety, the admissions of Foster after the expirationof his term of service, made at the meeting of himself, Papin and others at the register’s office, in June or July, 1858. Of course, all the official acts of the officer bind him and his security ; but his unofficial admissions, both oral and written, made after he was out of office, are not competent evidence against his security. (1 Greenl. Ev. sec. 187; Smith v. Whittingham, 6 Carr. & Payne, 78; Blair v. Per. Ins. Co. 10 Mo. 566; State v. Bird, 22 Mo. 470.)

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    The State, Respondent, v. Hughes, Appellant.
    X. It is a matter within the ¿iseretion of the lower courts to permit leading questions to be put to witnesses.
    2. A license to sell liquor at a place named in a specified block in the city of St. Louis, will'not authorize a sale in another block in said city.
    3. A license to sell spirituous liquors can not justify a sale made prior to its date.

      •dppeal from St. Louis Criminal Court.

      Bland & Coleman, for appellant.
    Voullaire, (assistant circuit attorney,) for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This case comes into this court upon appeal from the Criminal Court of St. Louis county, where the appellant was convicted upon an indictment filed in said court on the 25th of September, 1855, charging the appellant, in the usual form, with selling intoxicating liquors in St. Louis county, on the 1st of January, 1855, without license, by the glass, to Daniel Worthington, and others to the grand jury unknown. The questions arising upon this appeal grow out of the action of the court below upon the trial of the cause.

The cause was tried in the court below on the 23d November, 1855 ; the appellant was convicted and fined $75. The respondent called as a witness upon the trial of the cause, Daniel Worthington, who testified that he had never been in appellant’s place of business, but gave evidence tending to show the drinking of whisky and brandy at the appellant’s place of business in the months of August and September, 1855. The witness not being able to speak with certainty as to the character of the liquor drank, the circuit attorney asked him .the following question : “ Have you seen liquor sold there that you are satisfied was not soda?” This question was objected to by defendant’s counsel as leading, and also that it did not call for any fact, but only the conclusion of the witness’ own mind from what he had seen ; and that the witness should only be allowed to give facts in evidence to the jury, and not his own convictions or conclusions. The objection was overruled by the court, and the counsel for the defendant excepted, and the witness answered : I have. I saw liquor drank there that was not turned out of soda bottles.” On the cross-examination, the witness testified that he was not willing to swear to the drinking or sale of any whisky or brandy. No other evidence was offered on the part of respondent to show a sale, although a witness was introduced who proved a drinking at the appellant’s place of business.

The appellant offered in evidence a certificate of license issued to him by the county court of St. Louis county, as follows : “ State of Missouri, county of St. Louis, ss. To all to whom these presents shall come, greeting : Know ye, that Wm. M. Hughes having obtained from the county court of St. Louis county an order for a license to keep a dram-shop at his stand in block No. 15 of the city of St. Louis, for six months from the 19th day of April, 1855, and having paid to the collector the state and county tax thereon, these are therefore to license said Hughes to sell fermented drinks, wines of all kinds, and spirituous liquors, in any quantity less than ten gallons, at the place aforesaid, for said period of six months. In testimony whereof, I hereto set my hand and affix the seal of said court the 23d day of April, 1855. (Seal.) This license not transferable. J. Thornburgh, clerk.” Which the court refused to allow in evidence until the defendant first proved that the place of sale or of business was block No. 15 of the city of St. Louis, and refused to allow the same to be read in evidence to the jury until after such preliminary evidence was given. The defendant admitted that the sale of liquor for which he was being tried took place in a grocery kept by him in block 179, and not in block 15, and for this ground the state objected to the reading of the license in evidence, and the court sustained the objection, and defendant excepted; which admission was made by defendant after tbe court bad decided tliat defendant must first prove be sold in block No. 15, to wbicb ruling, decision and refusal tbe counsel for defendant then and there on bis bebalf excepted.

Tbe appellant then offered in evidence another certificate of a license issued to him by tbe county court of St. Louis county, of wbicb tbe following is a copy : “ State of Missouri, county of St. Louis, ss. To all to whom these presents shall come, greeting : Know ye, that Wm. M. Hughes having obtained from tbe county court of St. Louis an order for a license to keep a dram-shop at bis stand in block 179 of tbe city of St. Louis, for six months from tbe 28d day of July, 1855, and having paid to tbe collector tbe state and county tax thereon, these are therefere to license tbe said Wm. M. Hughes to sell fermented drinks, wines of every kind, and spirituous liquors, in any quantity less than ten gallons, at tbe place aforesaid, for said period of six months. In testimony whereof, I hereto set my band and afiix the seal of said court tbe 26th day of October, 1855. (Seal.) This license not transferable. J. Thornburgh, cl’k.” And also offered to show that the block specified in said license was the block in which his place of business was in August and September last, as testified to by the witnesses on the part of the state, and where they saw the liquor drank testified to by said witnesses. The state objected to reading of second license, and the court refused to allow such license to be read in evidence to the jury on the ground that it could not take effect until the time of its actual issue by the clerk of the court, and that was subsequent to the time of filing the indictment. The counsel for the defendant then offered to prove that the order for a license mentioned therein was duly granted upon a petition of a majority of the householders in block 179, in the city of St. Louis, filed with the county court on the 23d day of July, 1855. The court refused such license to be read in evidence to the jury either before or after such last offer, and the counsel for the defendant then and there excepted to such refusal.

From the above full statement of the case, there are but two or three propositions necessary for our consideration. There is nothing wrong in the question suffered to be put to the witness Worthington, nor in his answer. This court would not reverse a judgment because the lower court suffered a leading question to be asked the witness. It is often permitted. The inferior courts are the best judges when the truth requires such questions to be asked before it could be drawn out. There is nothing wrong on this point. There was evidence from which the jury might very properly conclude that the defendant was guilty of selling intoxicating liquors in St. Louis county. The two points then made by his counsel first above are not tenable. Whatever might be the opinion of this court in regard to the defendant’s third point, the error, if any, was completely done away by his admission that the sale of the liquors for which he was indicted was not made in block No. 15, the place for which the license offered was granted, but was made in block No. 179. The court required the defendant to show that the sale was had at the place covered by the license before it could be read as authority for the sale. Now a member of this court is inclined to think that a license might have been properly read before such proof could be demanded of the defendant, and that the state should prove the sale was at a different place; but as the defendant admitted that the sale was at a different place, this local license was no protection, for it gave permission to sell at block No. 15 only. The court agree unanimously that this admission does away with any supposed error in the court below. The indictment is for selling liquor in St. Louis county without license. The license offered permitted the sale at a particular place in the county, namely, in block No. 15, of the city of St. Louis. Now my own impression is, for this license to protect, he must show that he sold under it — that is, at the place permitted — otherwise the license fails to give authority to sell, for nowhere else except at block No. 15 aforesaid is he authorized to sell. * There is no error then committed by the court in rejecting this license first offerod.

The last point is the rejection of the license for block No. 179. The sale took place before the date of this license. The indictment was filed before the date of this license. But the defendant contends that the order made by the county court granting him the permission to obtain a license being in July, the license afterwards issuing in October must relate back to the order, and cover all the time from the date of the order in July for the next succeeding six months. Now such is not the view of this court. The order is not the license ; and when the license is obtained and dated, it looks forward, not backward. It can not have relation back so as to cover the intermediate space. The order for a license would not protect him, if he sold liquors (intoxicating) before he thought proper to obtain his license ; if so, he would not trouble himself to get a license. But it is the license to sell that gives the seller the protection under the law, and this court can not sanction the doctrine of relation back in such cases. The clerk of the county court very properly dated his license when it was issued ; he referred to the previous order of the county court, thereby showing his authority to issue the license — not that the license was to have operation and vitality so long before it was in being. Upon the whole record, then, we find no error; the judgment below is affirmed, the other judges concurring.


text:
    The State, Respondent, v. Byrne, Appellant.
    1. Where the circumstances of a homicide show beyond all gneslion that it was committed hy lying in wait, (it being assumed by the prosecution and. by the accused that the only question for determination is, whether the accused committed the homicide,) it is not error to refrain from instructing the jury as to the law of murder in the first and second degrees.

      Appeal from, Gape Girardeau Circuit Court.

    The following were the only instructions given to the jury : “ The jury will acquit unless the evidence exclude from their minds all reasonable doubt as to the guilt of accused. The conduct of tbe accused, before and after the death of Thomas J. Calhoun, may be taken into consideration in determining the guilt or innocence of the accused. The character of the accused for peace and humanity may also be taken into consideration, and such weight given thereto in repelling presumptions of guilt as the jury may think it entitled to from the evidence in this case.”

      Frissell and Blenner has sett, for appellant.

      H. A. Glover, (circuit attorney,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant, William Byrne, was indicted at a special term of the Circuit Court of the county of Scott, held on the fourth Monday of June, in the year 1855, for the murder of Thomas J. Calhoun. On the same day that the indictment was returned into court .by the grand jury, viz., on the 26th of June, 1855, the defendant, then in the custody of the sheriff of Scott county, appeared in court and filed his petition, verified by his oath, praying for a change of venue in this case. The venue was changed accordingly, and on his application, to the county of Cape Girardeau, and the defendant was ordered to be conveyed to said county and delivered to the custody of the jailor thereof. The transcript of the record of the proceedings was filed in the office of the clerk of the Circuit Court of Cape Girardeau county, on the 19th day of August, 1855. At the November term of said court the case was called for trial, the defendant was arraigned, and pleaded “not guilty” to the indictment. A trial was had, and the defendant was found guilty of murder in the first degree. He moved for a new trial, which was overruled, and exceptions taken. He moved an arrest of judgment, which was also overruled, and exception taken; and thereupon judgment was rendered on the verdict, and sentence passed on the prisoner. He appealed to this court. The Circuit Court allowed the appeal, with stay of execution of the sentence, until the judgment of this court was had on the case.

Tbe evidence was circumstantial. It showed that Thomas J. Calhoun was killed on the 21st of May, 1855, in Scott county, while he was engaged in plowing in his own field. He was shot by some person from a thicket of briers and brush inside of his field ; there was a forked poplar sapling in the thicket, and it seems from the tracks of a person around and at this sapling, and from the appearance of the briers and brushes being broken and pushed aside, that the murderer had concealed himself and laid in wait for his victim at this place, and from this place shot Calhoun in his back, as he was in all probability turning around his horse and plow. There could be no doubt of the killing being murder in the first degree. Calhoun was found a short distance from his plow ; he had gone towards the road near the fence, and had fallen four or five times, as appeared from the blood and impressions on the plowed ground. When found, he was dead, and had no weapons with him ; the gun was heard to fire, then a second report was heard. Calhoun was heard to halloo after the gun was fired. The testimony is lengthy and not necessary to be inserted in'this opinion. The only question was, who did the bloody deed? That it was murder in the first degree seemed never to have been doubted. The testimony satisfied the jury that the prisoner was the guilty man, and we think they were justified in coming to that conclusion.

The counsel for the prisoner in this court has made four points, to which our attention has been specially directed, for the reversal of the judgment of the Circuit Court. First, the Circuit Court of Cape Girardeau had no jurisdiction, because the record does not show that a special term in Scott county was legally held. There is nothing real or of weight in this objection. The circuit judges are required by law to hold special terms for trial of criminal cases, whenever they are informed by the jailors of persons being confined in jail two months before the regular term of the court; when such special term shall be ordered, the judge shall cause notice thereof to be served on the attorney general or circuit attorney, and the prisoner or prisoners to be tried ten days before the commencement oE said term. The judge, in his discretion, may order a grand jury to be summoned, and the court, at such special term, shall possess all the jurisdiction and shall have all the powers of a circuit court in criminal proceedings at a regular term thereof. The indictment shows that it was in the Circuit Court of the county of Scott, at a special term thereof, held on the fourth Monday of June, in the year 1855. The indictment was preferred by a grand jury at that term. The court had the right to empannel a grand jury at such special term. Now this special term was, as appears by the record, held on the fourth Monday in June. By the general law, the next regular term would have commenced on the second Monday in September, so that there were more than two months between the special and the regular term. This special term may have been called to try this prisoner on this very charge of murder, or it may not. He was in the custody of the sheriff when the indictment was returned. The record shows there had been a court held before a justice of the peace, for the examination of the prisoner on this charge on the sixth of June, 1855. Now whether the special term of the Scott Circuit Court was held in consequence of the prisoner being confined in jail more than two months before the regular term of said court or not, the record shows in this case that there was a special term of said Circuit Court. It had all the powers of a circuit court in criminal proceedings, and all the jurisdiction of such courts in such proceedings. Now there can be no necessity for the notice of the jailor to to the judge, nor of the order of the judge being certified on this record. There was a special term; the indictment was found at such term ; the prisoner is in custody at that term; he appears and makes his application for a change of venue; it is awarded to the Cape Girardeau Circuit Court; when called there and arraigned, he pleads to the. indictment. The whole proceedings are regularly and legally transacted, and the Cape Girardeau Circuit Court had jurisdiction of cause and person. There is nothing in this point, and this is the strongest one the counsel has mentioned.

Secotid point. — The court did not instruct the jury as to the difference between murder in the first and second degree; no such instruction was asked. It was admitted by defendant, as the record shows, that Calhoun was killed by a rifle shot, in Scott county. The murder was understood by every man old enough to be on a jury, or old enough to shoot a rifle, to have been done with premeditation, with deliberation, with lying in wait, with malicious purpose and intent. A darker, blacker, more heinous murder is seldom recorded in the annals of crime. There was no need to instruct the jury that such a murder was in the first degree and not in the second. They knew -it, and the defendant’s counsel knew it. The only question of interest to them and their client was, .who was the actor.

The third and fourth points relate to the rulings of the court in regard to the instructions refused. We have looked carefully into those instructions, and conclude they were properly and regularly refused. They were either abstract propositions of law, having nothing to do with the case, or they were improper, because they were designed to interfere with the jury in their province as to how they ought to regard evidence, or how they should weigh it. We see nothing in the points relied on by the counsel for the prisoner. We have not confined our investigation to those points only, but have looked through the whole record, and found nothing calling on this court for correction. The judgment must therefore be affirmed; the other judges concurring. As the court below suspended execution of the sentence until the opinion of this court could be had, the case is therefore remanded to said court that it may fix the da.y of the execution of its sentence, and order it to be carried into effect.


author: LEONARD, Judge,

text:
    McFarland & wife, Respondents, v. Baze’s Administrator, Appellant.
    1. The right of a widow to $200 worth of personal property under section 30 of aiticle 2 of the administration act, (R. C. 1845, p. 77,) will pass by a deed of such widow relinquishing to the administrator of her deceased husband’s estate all her “ right, title and interest of dower in said estate;” and that without reference to the question whether there is or is not a consideration for the assignment.

      Appeal from, Barry Circuit Court.

    This was an application by Wm. McFarland and wife originally to the county court of Barry county, (whence an appeal was taken to the Circuit Court,) for an order upon the administrator of one J. H. Baze’s estate, requiring him to pay over to plaintiff’s $225, the proceeds of the sale by said administrator of personal property belonging absolutely to the widow of defendant’s intestate, who had since intermarried with plaintiff McFarland, and who joined with her husband McFarland in this suit. The bill of exceptions states that the defendant, “ after laying the proper foundation,” offered in evidence the following instrument, executed by the widow of Baze, defendant’s intestate, before her intermarriage with McFarland : “ State of Missouri, county of Barry. Know all men by these presents, that I, Elizabeth Baze, widow and relict of Jesse H. Baze, deceased, late of Barry county, do by those presents relinquish all my right, title and interest of dower in said estate, and make over the same to John Baze, administrator of said estate, in order that the same may be applied to the payment of the debts of the deceased, and for the benefit of the minor heirs of said deceased. In testimony whereof, I have hereunto set my hand and seal this 8th day of August, 1854. [Signed] Elizabeth Baze. ( Seal.)”
    The refusal to permit said instrument to be read in evidence constitutes the error complained of.

      T. P. Wright, for appellant.

      W. Horne, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

The two hundred dollars worth of a deceased husband’s personal property, which is allowed to the widow by the 80th section of the administration law, is expressly spoken of in the statute as part of her dower in his estate, and vests in her immediately upon her husband’s death, discharged of the lien of the debts. (Hastings v. Myers, 21 Mo. 519.) This property was therefore within the very words of the deed of assignment, and passed thereby to the administrator upon the trusts there declared, unless there be some other objection to the efficacy of the transfer besides the sufficiency of the description to embrace it.

It has been suggested that this interest was a mere right in action, and therefore incapable of being legally transferred, and that the assignment being voluntary, was for that reason unavailing in equity; in other words, that the assignment was an imperfect gift, and could not be aided by a court of equity. It is unnecessary to go through the numerous and somewhat contradictory cases upon the subject of imperfect gifts. I had occasion to look into the progress of English equity on this subject in the case of Henderson’s administrator against Henderson, (21 Mo. 379,) and the result finally arrived at and settled in Bogh against Hughes, (23 Eng. Law and Eq. Rep. 271,) by the court of chancery, in 1854, was that a voluntary assignment by deed of a reversionary interest in stock, standing in the name of trustees, accompanied with notice to the trustees, was a valid disposition in equity of the fund — the court declaring that 1 ‘ by force of the deed of assignment, the equitable right was transferred ; that the transaction was completed by the execution of the deed, and that no valuable consideration was necessary to support the assignment.” This, it is seen, was not an assignment of a legal chose in action, as is the pre-sent transaction ; but there is no distinction in reason between >the two classes of cases in reference to the present question, rand none, it is believed, has ever been made in the previous •-cases ; and we suppose it may now be considered as settled in the English equity law, that an absolute assignment by deed of a chose in action, either legal or equitable, of which notice has been given to the debtor or,trustee, is a valid disposition of. it in equity, without any reference to the consideration.

We are not aware that this doctrine has yet been expressly recognized in any American cases, but it is so reasonable in itself, so convenient to the owners of this species of property, and so entirely free from any objection on the score of any public policy, that we may safely follow the English precedent and hold an assignment by deed valid in equity, without requiring a valuable consideration to uphold it. The judgment must therefore be reversed, and the cause remanded ; and upon anew trial, if there be any valid objection to the assignment, the party will have an opportunity of making it.

From the course of argument before us, we suppose the deed of assignment was rejected upon the idea that the property in controversy was not a dower interest within the meaning of the deed. But however this may have been, we think the statement in the bill of exceptions that the party, “ after laying a proper foundation,” offered in evidence the deed, &c., sufficiently shows that due proof of its execution had been made, and that it was not rejected on that ground ; and we are not disposed to listen very indulgently to mere formal objections of this character, that in no way touch the real merits of the case.

The judgment is reversed, and the cause remanded;

Judge Ryland concurring.


text:
    Potter et al., Appellants, v. Adams’ Executors et al., Respondents.
    X. The fact that the affidavit accompanying a petition for a change of venue may have been defective, will not render the order changing the venue a nullity; nor should the court to which the cause is transferred dismiss the suit for this defect. The objection should be made at the time the petition for a change of venue is acted upon.
    2. Where proceedings are instituted in a circuit court, under section 31 of the act concerning wills (R. C. 1845, p. 1083), to invalidate a will, and vacate the probate thereof; held, that the executor who obtained the probate of such will, and who, for aught that appears, is still acting under the will whose validity is contested, is estopped to move to dismiss such proceedings upon the alleged ground that the contested paper had never been lawfully established as the will of the testator, in that the judge before whom the will was proved had not power to take proof thereof in vacation.
    3. Proceedings under section 31 of the act concerning wills to invalidate a will, of which proof had been taken in vacation by the judge of the probate court of Green county, are not premature by reason of having been commenced before the court in term had confirmed such contested will.

      Appeal from ■ Barry Circuit Court.

    This was a petition by the heirs at law of John Adams, deceased, under the 31st section of a statute concerning wills, to set aside and vacate the probate of a will. The petitioners alleged imbecility of mind and body, and undue and fraudulent influence of the second wife of the testator, as the grounds for their prayer. The suit was brought in Greene county, in December, 1853, and the will and the probate thereof by the probate judge of that county were made a part of the petition. To this petition an answer was filed denying the allegations of the petition. At the November term, 1854, an amended petition was filed, and in December, 1854, an amended answer was filed. Yarious continuances were had, and at the September term, 1856, a change of venue was awarded to Barry; and in October, 1856, in the Circuit Court of Barry county, the defendant moved to quash and dismiss the proceedings, on the ground that the court had no jurisdiction, and that there was no cause of action. This motion was sustained.

      JV'a'pton, Otter, Edwards and Hendrick, for appellants.
    I. The probate judge of Greene county had power to take probate of wills in vacation. (Sess. Acts, 1847, p. 40.)
    II. The defendant is estopped to say he is not executor. There was a will in fact — a probate in point of fact — an administration in fact — and the defendants were de facto executors, and as such have for four years been resisting the petition. Admitting the probate to be illegal, and that it should not have been granted, still the present proceeding to set the will aside is proper. If other causes exist for setting aside this probate other than that alleged by us, they can not enure to the benefit of the defendant.

      F. P. Wright, for respondents.
    I. The court did right in dismissing the case. The Barry Circuit Court never acquired any jurisdiction of the cause. The change of venue was improperly granted. 1st. It nowhere appears that defendants had any notice of the application. 2d. The petition is not in conformity to the statute. 3d. There is no affidavit of the truth of the causes alleged in the petition. Defendant had already applied for a change of venue, and caused the delay of a term in consequence, and it was the duty of the court to see that the statute was substantially complied with. (17 Mo. 64. ) Defendant did not waive the irregularity. The first and only thing which they did in the Barry Circuit Court was to move to dismiss the proceedings.
    II. The proceeding was commenced too soon. The act establishing a probate court in Greene county is found in the session acts of 1857, p. 40. By the fourth section, it is provided that “the probate courts hereby established shall have exclusive original jurisdiction in all cases relative to the probate of last wills and testaments,” &c. The probate judge, acting as his own clerk, had no more power relative to the proof of last wills than the clerk of the county court has. Section fifteen of the act respecting wills authorizes the clerk to take proof of the last will, subject to the confirmation or rejection by the court. It can not be said that a will is either probated or rejected until the county court have acted upon it. So in this case ; the probate court, as a court in term, had not either confirmed or rejected it. The proceedings under the 31st section respecting wills, is in the nature of an appeal. Exclusive original jurisdiction is conferred on the probate court, and the 31st section provided a mode for giving to the Circuit Court appellate jurisdiction. (Dickey and others v.. Maliche, 6 Mo. 182.) As these proceedings had been commenced before the probate court, as a court in term time, had acted, the Circuit Court was as much bound, upon application, to dismiss it, as to dismiss any other appeal wrongfully taken.
   LEONARD, Judge,

delivered the opinion of the court.

This suit ought not to have been dismissed on either of the two grounds that have been suggested to us. The order of the Greene Circuit Court changing the venue was not a nullity ; that court had jurisdiction to make it for the causes stated in the petition, and the error, supposing it to have been one, as to the verification of the petition, was a mere irregularity in the proceedings and not a ground of nullity. The objection is that the affidavit did not verify the existence of the alleged prejudice, but was confined to the party’s just cause to fear that he could not have a fair trial on account of it. Without undertaking to say whether the objection ought to have prevailed, if it had been made at the proper time and place, it is sufficient to remark that it ought to have been made at the time the petition was acted upon, and in the court required to act, and not held back to be made in the court to which the cause was removed. Such a course of practice ought not to be allowed; it answers no purpose of justice, and there is no reason for permitting it.

The defendant was estopped from raising the other objection upon which he insists. Whether the judge of the Greene probate court had authority in vacation to take the proof of wills, and supposing he had not, whether, if the proof was in fact made and administration de facto granted, the act was after-wards impliedly ratified by proceedings in term, both on the part of the court and the administrator, founded upon the assumption that the will was lawfully established, are questions that we are not called upon to decide here, and on which therefore we shall not volunteer an opinion. The alleged will had been proved de facto before a judicial officer, at the instance of the party who now makes the objection, and was, we may suppose, at the very time the objection was being made, treated both by the party himself who now makes the objection, and the court having jurisdiction over the matter, as a legally established will. Certainly, the executors can not be allowed to deny in the Circuit Court the existence of that which they are acting upon in the probate court — to insist in the latter court, by acting upon it as such, that the instrument is the established will of the supposed testator, and at the same time to deny it in the Circuit Court, in order to get rid of the only proceeding allowed by law, to determine whether or not it is his'will, and ought to be established as such. Besides, in the present ease, the party did not make the objection at the first opportunity he had, but allows an issue to be made up as to the validity of the instrument, and after the proceeding has been pending in court for several years, turns upon the plaintiffs with the objection that no such issue ought to have been made, because it was not shown in the petition that the contested paper had been lawfully established as the will of the deceased. We can not allow such a course of practice without bringing reproach upon the administration of the law. If, in any stage of a cause, any thing occurs that renders further progress nugatory, a party may be allowed to bring it forward at any time for the purpose of arresting further proceeding ; and in the present case, if the allowance of the will had been rejected by the probate court in term, or if the grant of administration had been subsequently surrendered by the party and received by the court upon the ground that the original proceedings were irregular on account of their being transacted out of term, this matter might have been shown, and would, we suppose, have afforded a sufficient reason for dismissing the proceeding ; but that is not the case.

Again, it is said the suit was instituted prematurely, having been commenced immediately after the allowance of the will and grant of letters by the probate judge, and before the proceeding had been rejected or confirmed by the court at the succeeding term. The answer to this is, that the letters, granted in vacation, are not limited in point of time, so as to continue only to the succeeding term, and then expire, unless confirmed by the court. They are subject to the confirmation or rejection of the court, and it is the duty of the court to pass upon them ; but they are valid until they are rejected. If the proceeding of the probate judge allowing this will and granting letters upon it had been rejected by the court, then the issue asked by the plaintiffs whould have been unnecessary, and so would the trial of the issue, if the issue itself had already been allowed and made up ; but nothing of that kind is pretended here. The judgment must be reversed, and the cause remanded.


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    Thornton, Respondent, v. Crowther, Appellant.
    1. Where the assignment of a bond or note is made upon a separate paper, the assignee may maintain an action upon the bond or note in his own name as the real party in interest.
    2. If the assignment describes the obligations assigned as the “ within notes,” parol evidence is admissible to show that the instrument sued on, being an obligation under seal, was folded up and enclosed within the paper upon which the assignment was made, and thus delivered to the assignee.

      Appeal from Jaclcson Circuit Court.

    This was an action by an assignee of an obligation described in the original petition as a promissory note. When the cause was taken up for trial, plaintiff offered in evidence an instrument of which the following is a copy: “ On or before the 25th day of December, 1855, I promise to pay C. F. Russell, trustee of Zacnette Russell, the sum of $800, for value received. Witness my hand and seal this 9th day of November, A. D. 1854. [Signed] Benj. Crowther.”
    The court, upon the objection of defendant, refused to permit this instrument to be given in evidence, but against the objection of defendant permitted the plaintiff to amend his petition by striking out the words “ promissory note” and inserting instead the word “ bond,” and also ruled that the defendant should answer and that the cause be tried at that term unless good cause should be shown for a continuance.
    The defendant accordingly filed his answer, and the cause was submitted to the court without a jury. In proof of the assignment to himself, plaintiff introduced a written assignment from Russell to one Hockaday, which purported to assign “ the within described notes, one for $250, dated, &c., &c. ; one for $800, dated 9th day of November, 1854, and payable on or before the 25th day of December, 1855 also an assignment upon the same paper by Hockaday to plaintiff of “the within described notes ;” and also introduced, against the objection of defendant, evidence to prove that tlie obligation sued on and above set forth was the instrument referred to in the above assignments.
    The court found for plaintiff. Exceptions were duly taken by defendant.
    Hovey, for appellant.
    I. The alteration of the petition was not an amendment, but the institution of a new suit; and the defendant not having voluntarily appeared to it, had until the next term to answer, as of course. (See 6 Shep. 249; Practice Act, 1849, art. 5, sec. 2.)
    II. Defendant had not been served with a copy of the petition as altered twenty days before the time, and was not, therefore, bound to go to trial at that time. (See Practice Act, 1849, art. 6, sec. 6.)
    III. That in order to give the plaintiff a right of action upon the bond, in the form in which his petition is couched, the assignments must be on the bond by endorsement in writing. (R. C. 1845, p. 190, sec. 2.)
    IY. The finding shows that the instrument sued on is not a bond for the direct payment of money to plaintiff, and therefore the suit should have been founded upon the special facts, and placed on the return docket. (See Practice Act, 1849, art. 5, sec. 6.)
    Y. That although “ the real party in interest” is, by our statute, the proper party to sue, yet the legislature are not by that statute precluded from prescribing the mode of obtaining that interest, or the mode of asserting it in a court of justice. (Compare sec. 1 of art. 3, Practice Act, 1849, and sec. 1 of art. 6 of same with sec. 2 of chap. 21 of Code of 1845.)

      JVhpion, for respondent.
    I. The assignee of a bond or note by an assignment made on a separate paper from the bond or note, is the real party in interest within the meaning of our practice act, and therefore entitled to sue. (See Code of Practice, 1849, art. 8, sec. 1; Walker v. Mauro, 18 Mo. 564 ; Smith v. Schibel, 19 Mo. 140 ; Long v. Constant, ib. 820 ; Smith v. Dean, ib. 63.)
   LEONARD, Judge,

delivered the opinion of the court.

There is no error in this record. Although the legal ownership of the note was not transferred — the assignment being on a separate paper and not on the note, as required by the statute— yet the beneficial ownership passed, and the assignee became the real party in interest, and entitled as such to sue upon the note in his own name.

As to the amendment and the proceedings consequent on them, we remark that, whether the alleged want of correspondence between the proof and the allegation be considered a mere variance or an entire failure of proof, as defined in our written law, the plaintiff has no cause of complaint on account of the course of the court in reference to it. There is no pretence that he was in fact misled by it; nor indeed could he have been misled, as the instrument itself was filed in the cause and pointed out to him as the obligation sued on. In every view of the matter, he was rightly required to file his answer and proceed to trial at the same term and without any unnecessary delay.

The parol evidence, in reference to the note sued on being the one referred to in the assignment, was properly receivéd.. Such evidence must always be admitted to determine whether any particular thing is the object referred to in the written instrument ; in other words, to show that the thing demanded answers to the description given of it in the written contract. To take the simplest case, if, in the conveyance of an estate, it is described as blackacre, parol evidence must be resorted to for the purpose of showing what field is known by that description. The point of contention in this ease wa3, whether the note sued on was one of the two notes referred to in the written assignment. These notes were described by their date, amount and time of payment, and by the additional fact of their being within the paper upon which the assignment was written ; and the proof was that the present note was with another folded up in this paper and thus delivered to the assignee.

The matter is too clear to require any authority or argument in support of it. The judgment is affirmed.


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    Dunnica, Plaintiff in Error, v. Coy et al., Defendants in Error.
    1. Where a party purchasing land causes the legal title to be placed in a third person with a view to defraud his creditors, there will be a resulting trust to himself for the benefit of such creditors, and this interest may' be seized and sold on execution under a judgment against him in favor of one of those creditors; and the purchaser may then, in a proceeding instituted for that purpose, and upon proving the alleged fraud, have a decree vesting the legal title in himself, and for the possession oE the land, and an account of the rents that may have accrued since his purchase.
    2. Before, however, he can become entitled to such relief, the title acquired by him at the execution sale must be perfected by the execution of the sheriff's deed.

      Error to Chariton Circuit Court.
    Demurrer to a petition. John Coy, Elizabeth Coy, Collins Coy and John Prewitt were defendants. Plaintiff set forth in his petition substantially that John Coy, being indebted to him, afterwards became entitled to an interest in certain slaves and other personal property as one of the children of Frances Coy, deceased; that at this time he was insolvent; that for the purpose of defrauding, hindering and delaying his creditors, he sold the interest in the slaves, &c., to his brother Collins Coy; that Collins Coy, as a part or whole consideration for this sale, sold to said John Coy certain described tracts of land ; that the title bond for said tracts of land was made to Prewitt in trust for Elizabeth Coy and her minor children ; that Prewitt accepted the trust, well knowing that the consideration passed from John Coy, and that the same was made for the purpose of defrauding the creditors of John Coy ; that this agreement was entered into by defendants by a fraudulent combination and collusion in order to defraud the creditors of John Coy ; that he (plaintiff) obtained a judgment for his debt; that an execution was issued thereunder and the above mentioned real estate sold as the property of Coy ; that plaintiff became the purchaser at the sheriff’s sale. Plaintiff prays the court to set aside the pretended contract to Prewitt; that Collins Coy be compelled to convey the land to plaintiff; that John Coy be decreed to give the possession to plaintiff; also that he have judgment against John Coy for the sum of forty dollars per year for the use and occupation of said land from the date of the sale, &c.
    A demurrer to this petition was sustained.

      ShacJcelford, for plaintiff in error.
    Turner, for defendant in error.
   LEONARD, Judge,

delivered the opinion of the court.

This judgment will be affirmed ; but we proceed on grounds altogether different from those that have been suggested to us in the briefs. We decided at our last fall term at St. Louis, in the case of Rankin against Harper, (23 Mo. 579,) that where a father purchased land with his own money, in the name of a child, in order to defraud his creditors, there was a<resulting trust to the father in favor of the creditors, which was subject to sale under our execution laws. In that case, the land was sold and conveyed by sheriff’s deed to the plaintiff, who filed his petition .stating these facts, and upon a trial and verdict he obtained a judgment vesting the legal title in him, and for the possession and damages. And at the same term, in the case of Eddy against Baldwin, we applied the same doctrine to a case where the alleged fraudulent purchase of the land sold under execution was made by the husband in the name of a stranger as trustee, .upon expressed trusts, in favor of the wife.

According to these decisions, it would seem that, if the facts be in the present case as stated in the petition, and the plaintiff had completed his purchase bj taking the sheriff’s deed fot the land bought, he would have become the beneficial owner of the property, and might have filed his petition to have the alleged fraud tried, and the trustee decreed to convey the legal title to him, and for the possession of the land, and an account of the rents that had accrued since the purchase. Bjut the fatal defect in the petition is, it is not shown that the sheriff had executed a deed to the plaintiff, which of course was necessary to complete the purchase and transfer to the purchaser the rights of the judgment debtor in the land. This may have been an accidental omission on the part of the pleader, or it may be that the deed has never been made; but however the truth may be, we must assume upon this demurrer that there was no conveyance, and therefore the plaintiff was not entitled to the relief he asked.

Although a judgment creditor may, before proceeding to a sale of land alleged to have been fraudulently conveyed, go into equity for the purpose of having the question of fraud there tried, and the land sold under a decree for that purpose and the proceeds applied to the payment of his debt, yet this petition does not seem to have been framed with any view to that kind of relief, and we are not perhaps at liberty to treat it as such, after the party’s averment of the execution sale, even if the allegations of the petition were otherwise sufficient to entitle the plaintiff to the other rélief indicated.

The judgment upon the demurrer must therefore be affirmed, and the party will then of course complete his purchase by taking a deed, and afterwards institute such fresh proceedings as he may deem appropriate to his case. The judgment is affirmed.


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    Dumey, Defendant in Error, v. Schœffler and wife et al., Plaintiffs in Error.

      1. A testamentary disposition by a husband, of either real or personal property, to his wife, to be void upon her marrying again, is not against public policy, but is a valid disposition under the law of this state.

      2. A will contained the following provision : “ I give and bequeath unto my wife, Sarah, the whole of my estate, both personal and real, during her life or widowhood; but if my wife should again marry, so soon as the same takes place my whole estate, both real and personal, I give and be-qupath to John and Sarah Dumey, a boy and girl living with me, to be equally divided among them:” held, that upon the marriage of the testator’s widow the real estate devised passed to and vested in John and Sarah Dumey.

      Error to Chariton Circuit Court.

    In this suit John Dumey, claiming under the will of one Frederick Henneger, prays for a partition of certain lands, which he alleges passed to and became vested in himself and one Sarah Dumey, a defendant, under said will. Sarah Du-mey, by her guardian, answered, admitting the alleged right of plaintiff and making a similar prayer. Schceffler and Sarah his wife also answer, setting up the devise by Henneger to his wife Sarah, defendant in the present suit and wife of Schoef-fler. It is alleged in the answer that the said widow of Henne-gor took out letters of administration upon his estate^ and administered upon the same, and paid all the debts, and made a final settlement with the county court. The answer then proceeds as follows: “ And on said final settlement there was a balance found in her favor of $1380'10, which these defendants now pray the court to cause to be paid to said defendants put of the real estate in the petition mentioned, in case the same be considered as the property of plaintiff and his sister, Sarah Dumey, by virtue of the will of Frederick Henneger, deceased ; and defendants further aver that the said final settlement was made before the intermarriage of the said Sarah Henneger with the said Schceffler. Defendants also stated that the said Frederick Henneger and the defendant, Sarah, had no issue of their marriage, nor had the said Henneger any issue of any former marriage at the time of his death; and these defendants now insist that by virtue of the paper proved as the last will and testament of Frederick Henneger, the former husband of the said Sarah, she was and now is entitled to said real estate, mentioned in the petition of, plaintiff for and during her natural life; and that the part of said last will and testament which requires her to surrender said property to the plaintiff and his sister Sarah Dumey, upon her the said Sarah’s marriage with the said Schoeffler, is void, it being an attempt to restrain her in the exercise of her personal and legal right of forming the connexion of marriage at pleasure.
    The portion of defendant’s answer above quoted was stricken out on the motion of plaintiff, and this constitutes the error complained of. The will of said Henneger is as follows : “ Know all men by these presents, that I, Frederick Henneger, of the city of Brunswick, county of Chariton, and state of Missouri, do make and publish this, my last will and testament, hereby revoking all former wills by me made ; and first, it is my will and desire that all my just debts be first paid out of my estate, and secondly, I give and bequeath unto my wife Sarah, the whole of my estate, both personal and real, during her life or widowhood ; but if my wife should again marry, so soon as the same takes place, my whole estate, both real and personal, I give and bequeath to John and Sarah Dumey, a boy and girl living with me, to be equally divided among them ; and after the death of my wife (if she remains unmarried), I give and bequeath my said whole estate to the said boy and girl, John Dumey and Sarah Dumey ; and my said wife, out of my said estate, during her widowhood or life, is to give to said John and Sarah Dumey a support and education. My will and devise is, that my said wife keep my estate together, and manage and control the same as she may think proper, during her life or widowhood; but so soon as she marries again or dies, I give and bequeath my said estate to the said John and Sarah. Thirdly, I appoint F. M. Reinhart executor of this my last will and testament. In testimony whereof,” &c.
    Clark, for plaintiffs in error.

      Turner, for defendant in error.
   LEONARD, Judge,

delivered the opinion of the court.

Walsh v. Matthews and wife (11 Mo. 134), determined here in 1847, is a direct authority in point, and must control our present judgment. That case is not shaken by the subsequent case of Williams and Williams against Cowden, (13 Mo. 211,) from which it is clearly distinguishable. The first is a condition annexed by a husband to restrain the marriage of his widow, and the second by a father in restraint of the marriage of his daughter. Both were annexed to testamentary dispositions of real property ; and the first was allowed and the second declared to be unlawful as being against public policy ; and although the point is settled by the previous judgment of this ' court, yet as the matter has been argued somewhat at large, we have re-examined the question and are entirely satisfied with the first decision.

The doctrine that all restraints on marriage are against public policy came from the Roman law, and thence through the canon law was partially incorporated into the common and equity law of England ; and by reference to Ayliffe’s Pandect of the Roman civil law (a short extract from which is here inserted), it will be seen that the distinction between first and second marriages, recognized in the two cases to which we have referred, was made at an early day in both the civil and the canon law — “ The ancient law rejected the condition (not to marry) almost without any distinction, as being contrary to the procreation of children, and the advantage of the state, for such was the judgment then that marriage ought not to suffer by any impediment. For though it be for the interest of the state that the testator’s will should be observed in other respects, yet the wisdom of men has thought it more for the advantage of the commonwealth in this case that the same should be peopled by a. lawful offspring.5’ And Baldus well observes, “that the good of the public rather consists in marriages than in a state of continency, it being the interest of a state to have as many subjects as possible. And this is to be observed in all first marriages } but in second, marriages, the condition is to be fulfilled and performed $ for widows are praiseworthy that content themselves with one husband, as being a pattern of chastity and modesty ; because a second marriage, according to the canonists, is a kind of fornication which yet is permitted upon a good account even by the canon law, and therefore they*, style it an honest fornication. Wherefore, if a husband, leaving a legacy to his wife, adds this condition in, ‘ if she shall keep her widowhood,’ or, ‘ until she marries a second time,’ such condition ought to be observed ; for if she contracts a second marriage, the legacy is forfeited. And it is the same thing even by the canon law, though the apostle says that after the husband’s deaths the wife is free from the law of hesv husband.’’ The same distinction is also mentioned in 2 Swini--burne on Wills, 481, where it is said that “ the prohibition of-' the first marriage is much more odious in law than the second!,”' and it has also been made and acted upon both in American and' English cases. In Scott v. Tyler, (2 Bro. Ch. R. 488,) Lord. Thurlow said, “ a condition that a widow shall not marry; is. not unlawful.” In Grace v. Webb, (15 Simon, 888,) the vice' chancellor, in 1846, said, “ a man may make a provision for his wife and declare that it shall cease on'her second marriage, because it is considered that a husband has a sort of interest to preserve the viduity of his wife for the sake of his children.” And in 1852, in Lloyd v. Lloyd, (10 Eng. Law & Eq. Rep. 143,) the chancellor remarked that “ the law recognized in the husband that species of interest in the widowhood of his wife as made it lawful for him to restrain a second marriage — that is to say, that the provision which he has made shall cease.” In Philips v. Medbury, (7 Conn. 568,) there was a testamentary disposition of land by a husband to his surviving wife as long as she should remain his widow, and it was held that the rule in reference to conditions in restraint of marriage were not applicable to real estate or to a widow. The court declared it to be “ very reasonable that aman, leaving a widow with seven children, should be permitted to encourage her by suitable provision in his will to remain single, and not subject his own offspring to the probable evils of a stepfather to waste her substance, and thereby render her less able to support and educate them.” A similar disposition of both real and personal estate was made by a husband for his widow in Pennsylvania, in Commonwealth v. Hauffer, (10 Penn. State Re. 350,) and the clause in restraint of her marrying again was held to be valid in reference to the land, which was the only property then in contest; and Gibson,* chief justice, in delivering the opinion of the court, observed in his peculiar style, that “ it would be extremely difficult to say why a husband should not be at liberty to leave a homestead to his wife without being compelled to let her share it with a successor to his bed, to use it as a nest to hatch a brood of strangers to his blood.” Decisions to the same effect were made in Kentucky, in Vance v. Campbell’s heirs, (1 Dana, 229,) and in Copage v. Alexander’s heirs, (2 Black. 314,) and in Mississippi, in Pringle v. Durkley, (4 S. &. M. -.) It is true it was decided otherwise in Massachusetts, in Parsons v. Winslow, (6 Mass. 178,) but the distinction between first and second marriages was not noticed in the case. And in Marples v. Bainbridge, (1 Mad. Ch. R. 317,) which was a bequest of personal property by a husband to his wife, on a condition subsequent, to be void if she married again, it was holden by vice chancellor Plumer that the condition was void, being in restraint of marriage, and that the wife was entitled notwithstanding her second marriage ; but these are the only decisions to this effect that we are aware'of. The weight of authority is decidedly in favor of the distinction between first and second marriages, and we think it is founded in much practical good sense. Our law having made provision for the support of the wife out of her husband’s estate, which he is not allowed to. control by Ms will, it seems but reasonable to allow Mm the privilege of disposing of the residue of his property as Ms judgment shall deem best for the interests of his family. The wife may reject the scheme he has provided for their support and government after his death, so far as her rights of property are concerned, if she prefer the dower allowed her by law. But after she has made her election to take under the will by omitting to renounce its provisions, she has no cause to complain that she is held to her own choice, and not allowed upon her subsequent marriage to enjoy absolutely the larger estate, that was given to her by her husband conditionally, under the expectation that if she kept the condition and remained unmarried she would devote herself and what she possessed to the well-being of the family of which she was the surviving head. This distinction, too, has a plaee in the habits and sentiments of our people ; such dispositions of property are of very frequent occurrence, and are approved by the common judgment of the community. Although in the case now before us, there were no children, there were yet two young persons, to whom, as we may infer, the testator and his wife stood in the place of parents, and all the property, real and personal, was given to the wife during her life or widowhood, and she w7as directed to keep it together and to manage it as she pleased, supporting and educating these children, to whom it was to go upon her death or marriage. The widow having married again, the new husband and wife insist that the condition is void upon the ground of the public policy in reference to marriage, and that she is therefore entitled under the will to all that is there given to her, notwithstanding her refusal to comply with the condition. We remark here that in determining upon the validity of any condition of marriage under the English law, it is necessary to make several distinctions — as between real and personal property — between conditions precedent and subsequent — between a limitation and a condition, and between a condition followed by a limitation over to a third person, and one without such limitation over. And accordingly, if the disposition be of real property, and the restraint in the form of a limitation — and not of a condition, as during widowhood — it is valid, and the estates cease upon the marriage. And so too, although as a general rule a condition annexed to a testamentary disposition of property, either real or personal, for life, to be void if the party marry, is void as a general restraint on marriage ; yet if there be an immediate limitation over to a third person, it is valid as a conditional limitation; and upon the happening of the event, the first estate ceases, and the limitation over takes effect. (Parsons v. Winslow, 6 Mass. 181.) And although the present judgment might be put upon some one of these grounds, we prefer placing it on the same ground that controlled the decision in Walsh and Mathews, and, disregarding the distinctions to which we have referred, to declare, as was in effect declared in that case, that a testamentary disposition by a husband, of either real or personal property, to his wife, to be void upon her marrying again, is not against public policy, but a valid disposition under our laws. This being the general rule must apply to every such case, without reference to the question, whether, in the particular case, there be children of the marriage, or a provision in the will for the wife, in the event of her marrying again.

In reference to the claim set up by the plaintiffs for the money allowed the widow against the estate by the probate court, enough is not disclosed to enable us to say that she is entitled to it, even if it be admitted that such a demand could be brought forward in this case as a ground of defence. Her rights in this particular will not be precluded by the present judgment, but she will be at liberty to institute such proceedings in reference to them as are appropriate to her case, unprejudiced by any thing done here.

The result is, the judgment must be affirmed.


author: Leonard, Judge,

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    Dumey, Defendant in Error, v. Sasse et al., Plaintiffs in Error.
    1. A will contained the following provision: “ I give and bequeath unto my wife Sarah the who'e of my estate, both personal and real, during her life or widowhood; hut if my wife should again marry, so soon as the same takes place, my whole estate, both real and personal, I give and bequeath to John and Sarah Dumey, a boy and girl living with me, to be equally divided among themheld, that the limitation over of the personal estate upon the second marriage was valid.

      Error to Chariton Circuit Court.

    Davis, for plaintiffs in error.

      Turner, for defendant in error.
   Leonard, Judge,

delivered the opinion of the court.

This contest grows out of the same will that gave rise to the controversy in Dumey v. Schœffler, decided at the present term, and the only difference between the two eases is, that there the subject matter of the suit was the real estate of the testator ; here it is his personal property. That ease was decided upon the distinction between first and second marriages, in reference to the lawfulness of conditions in restraint of them, which of course is as applicable to personal as to real property.

The judgment must be affirmed.


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    Douglass, Defendant in Error, v. Ritchie, Plaintiff in Error.
    1. It is not sufficient to charge an owner of a slave for goods purchased and delivered to such slave, that the goods purchased were used by the slave for the benefit of the master with his assent.

      Error to Cooper Circuit Court.

    This was an action to recover the value of goods, wares, &e., alleged to have been “ sold by plaintiff to defendant, and by defendant, per ■ boy Anderson, received of plaintiff and at the request of defendant.” The following, instruction was' given to the jury at the instance of the plaintiff: “1. If the jury believe from the evidence that the account for which the plaintiff has sued in this case was made by Anderson ; and that at the time he made the account he was the slave of the defendant, or under his control either as slave or otherwise, and that the goods purchased of plaintiff were used by Anderson for the benefit of the defendant, with his assent, then they must find for plaintiff.5’ Other instructions were given to the jury, but it is unnecessary to notice them. The defendant requested the court to instruct the jury as follows: ‘“The selling of goods toa slave, without the consent in writing of the master, owner, or overseer of such slave first had and obtained, is contrary to the law of this state, and in this ease, there being no evidence of such consent, the jury will find for the defendant.”
    A verdict was rendered for plaintiff.

      W. Douglass and Draff en, for plaintiff in error.
    I. The goods were sold to a negro slave without the consent in writing of the master, owner or overseer first had and obtained, and therefore illegal and void, and the courts will not enforce it. (R. C. 1845, tit. Slaves, p. 1018, §. 38; Story on Agency, § 195, 235, note 2, 344, 345, 346, 347, note 3; Armstrong v. Toller, 11 Wheat. 250 ; Hannay v. Eve, 3 Cranch, 242 ; Hunt v. Knickerbocker, 5 Johns. 327 ; Graves v. Delaplaine, 14 Johns. 146 ; Griswold v. Waddington, 16 Johns. 438 ; Roberts v. Samuel, 17 Mo. 555; Ashley v. Dillon & Lester, 19 Mo. 619 ; 2 Kent, 458, 466, 467;. 7 Mo. 585.) The penalty of the act implies a prohibition. (1 Kent, 467.) ■
    II. The defendant could not make the negro slave an agent to act and deal as a free person. (R. 0. 1845, tit. Slaves, p. 1014, § 7 ; Story on Agency, §• II, 240', 241.)

      Mams and Hayden, for defendant in error.
    I. Whether Anderson'acted as the agent of Ritchie or not, 'was a question for the jury, and they having found for the respondent, this court will not disturb their verdiet.
    II. The court very properly refused to give the last instruc- ■ tion asked for by the appellant. The evidence shows that Douglass did not deal with Anderson as the slave, but dealt with him as the agent of Ritchie. .The dealing therefore in contemplation of law was with Ritchie, and not with Ritchie’s slave. It was not necessary for Douglass to obtain the consent-in writing of Ritchie to trade with Ritchie. ■ Such a construction would be absurd. The object of the statute is to guard and protect slave property from vicious influences. Individuals are therefore prohibited from trading with, and treating them as free persons ; but it was never intended that a master should' not constitute his slave his agent, nor to prevent a third person.from trading with the master through his slave. That a master may constitute his slave his agent, see Christian v. Bow- ■ man et al. (1 Hill’s S. C. R. ; Wheeler on Slavery, p. 228.)
   LEONARD, Judge,

delivered the opinion of the court.

The first instruction given at the instance of the plaintiff is , erroneous. The facts stated in it do not entitle the plaintiff to recover. It is not sufficient for that purpose that the defendant, was the owner of the slave, and that “the goods purchased were used by the slave for the benefit of. his. master and with his assent.” Undoubtedly, if the goods were bought by the master, either by himself personally, or through the agency of his slave, and delivered to the slave by the master’s direction, the latter would be liable; and there could be no pretence in such a case (one of daily occurrence in the community) either that it was a prohibited dealing with the slave or that the master was not liable. But the question is, do the facts stated in the instruction constitute such a transaction ? Does it follow because the slave, after obtaining the goods, applied them to his master’s benefit, that the sale was .in point of law to themaster and not to the servant? Or, in other words, do these circumstances constitute a sale, made in fact with the slave, a contract in point of law with the master, imposing upon him the obligations contracted de facto by his slave. We all know that they do not. This is too plain for argument, and yet such seems to be the effect of the instruction given.

The difficulty, or rather the confusion of ideas that seems to exist here, grows out of the fact that the transaction was with a slave, and this renders it not improper to refer to the rules of law applicable to cases of this character.

Our American law of African slavery is a system of customary law, that is, of rules and principles applicable to the institution, at first introduced and observed by the people in their practical dealing with the subject, and subsequently recognized by the courts as the grounds of judicial decision. Very few of these principles are the result of written law, but have been developed from time to time by the actual working of the system in the several slave states, and successively adopted by the courts as they have been found by experience to be proper and effective in making the institution answer the purpose for which it exists. Our system of slavery resembles that of the Romans rather than the villenage of the ancient common law, and hence both the community and the courts have looked to the Roman rather than to the old common law of England for rules applicable to it. (Neal v. Farmer, 9 Georg. 555; Byrum v. Bostwick, 4 Dess. S. C. 266; Dulany’s Opinion, 1 Har. & McHen. R. 561.) Under the former law, slaves were things and not persons ; they were not the subjects of civil rights, and of course were incapable of owning property or of contracting legal obligations ; they and all that appertained to them belonged to their master, and they were under his dominion. In a word, slavery was then defined to be “ an institution by which one man is made the property of another,” (Just. Inst. lib. 1, tit. 3,) and such undoubtedly is our African slavery; and accordingly, the slave’s incapacity to be the subject of civil rights — as to own property, or contract a legal obligation — which flows from the nature of the institution, is adopted by our people in practice and recognized in tbe decisions of our courts. Nevertheless, slaves may buy and sell, and make-contracts de facto, although no civil rights result therefrom to themselves, and our statute law takes notice that such things are done, and, deeming it unwise to allow of them, prohibits a master from permitting his slave to deal as a free man, and all others from selling to or buying from a slave without the master’s written consent. (R. C. 1845, tit. Slaves, art. 1, § 7, 38.) There was proof in this case tending to show that both parties had violated these laws — the defendant in allowing his slave to set up a shoemaker’s shop and deal as a free man; and the plaintiff by selling to him the goods, the price of which he now seeks to recover against the master. The sale, it is admitted, did not vest any right to the goods in the slave, nor create any civil obligation against him to pay for them, and this results from the slave’s incapacity, and not from the statute prohibition against selling to him. But, according to the Roman law, although a slave could not acquire any thing for himself he could acquire for his master ; and in the case now before us a Roman master would have become the owner of the goods upon their delivery to the slave, although the promise to pay would not have bound him. (Just. Inst. tit. 9, lib. ,2.) Whether the same change of ownership would result from such a transaction under our law (which seems to be the common opinion in reference to goods actually delivered to the slave, provided they are such as masters usually allow their slaves to enjoy), we are not now called upon to determine; but certainly no obligation arises under our law out of such a transaction against the master to pay the price, even if the slave use the goods for the master’s benefit and with his assent. If a trespasser convert to his own use the goods taken, the owner may waive the trespass, and sue for the value of them, as for goods sold; but that doctrine is not applicable to a case of this character ; and yet some such idea seems to have been in the mind of the defendant as a possible ground of recovery on the part of the plaintiff, and to have dictated the instruction he asked in order to guard against it. The plaintiff however insists upon nothing of the kind. He states his cause of-action in his petition distinctly to be “ for goods sold to the defendant and delivered to his slave,” and insists here in argument that it is quite immaterial whether the sale was to the master personally or through the agency of his servant, and this is undoubtedly, true; but that was not the instruction the court gave. The jury were told in substance that the master was liable if the slave used the goods for the benefit of the master and with his assent, and certainly this is not the law, although it was no doubt the ground on which the recovery was had.

The case has not been properly tried. The jury were misdirected as to the law, and the judgment is therefore reversed, and the cause remanded.


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    Hayden’s Administrator, Appellant, v. Stinson, Respondent.
    1. By a deed of gift certain slaves were conveyed to M. W., a daughter of the grantor, “to the said M. W., and to her hodily issue, and no way else, &c., to have and to hold unto the said M. W. and her bodily issue forever, &c., though with this condition, and such is the express meaning and intent of this imtrument, that the above named negro slaves are to remain with and be kept in the possession of the said Mary White for and during her natural life; and after her death, the said negro slaves, with their increase, to be equally divided between the heirs and issue of the body of the said M. W., any thing to the contrary herein contained notwithstanding.” Held, that this deed created a life interest only in M. W., the daughter of the grantor, with a remainder to her children.

      Appeal from Cooper Court of Common Pleas.

    James Stinson executed the following deed of gift to his daughter, Mary White : “ Know all men by these presents, that I, James Stinson, of Cooper county and state of Missouri, for and in consideration of the natural love and affection which I have and bear to my beloved daughter, Mary White, of Renton county and state aforesaid, and for and towards tbe better support of her, the said Mary and her heirs, and for divers other good causes and valuable considerations thereunto specially moving, have given, granted and sold, and by these presents do give, grant and sell unto the said Mary White and to her bodily issue, and no way else, two certain negro slaves, called by the names and known as follows, to-wit: Green, a boy aged about two years old, and Jane, a girl aged about thirteen years old, with her future increase for life ; tp have and to hold the described and named slaves unto the said Mary White and her bodily issue forever from the claim of myself, my heirs, &c., and from the claim of all and every person or persons whatever ; though with this condition, and such is the express meaning and intent of this instrument, that the above named negro slaves are to remain with and be kept in the possession of the said Mary White for and during her natural life ; and after her death, the said negro slaves, with their increase, to be equally divided between the heirs and issue of the body of the said Mary White, any thing to -the contrary therein contained notwithstanding. In testimony whereof, the said James Stinson hath hereunto set his hand and affixed his seal this 22d day of September, 1847. [Signed] James Stinson. (Seal.)”
    This suit is for the possession of a slave, the child of the slave Jane mentioned in the above deed. Plaintiff founds his right to a recovery upon a bill of sale of said girl, executed to his intestate by John White, the husband of Mary White. Stin-son, the respondent, resists a recovery as guardian and curator of the infant children of John White and Mary White.

      TV. Mams and E. E. Hayden, for appellant.
    I. The condition annexed to the deed requiring the slaves to remain with and be kept in the possession of the grantee (Mrs. White) during her life,” is a condition in restraint of alienation, and repugnant to the grant, and therefore void; and her husband, John White, by virtue of his marital rights, became the owner of the slaves and the increase, and had the right to pass the title of the slave in dispute to the appellant’s intestate. (See 2 Coke’s Inst. sec. 860, 223, a\ McDowell v. Drown, 21 Mo. 57; Woodmeston v. Walker, 2 Russ. & Mylne, 197 ; 2 Kent, 143.)
    Parsons, for respondent,
    cited 2 Sto. Eq. § 1878 ; Stuart v. Kissane, 2 Barbour, 493 ; Taylor v. Stone, 13 S. & M.
   LEONARD, Judge,

delivered the opinion of the court.

It is our duty to interpret the deeds of parties so as to .execute their intentions, if we can do so consistently with the rules of law. The words of this grant are “ to Mary White and her bodily issue, and no way else,” to have and to hold to her and her bodily issue forever,” and then the deed proceeds to declare that “ the express meaning and intent of this instrument is that the above named negro slaves are to remain with and be kept in the possession of Mary White for and during her natural life; and after her death, they, with their increase, are to be equally divided between the heirs and issue of the body of the said Mary, any thing to the contrary herein contained notwithstanding.” The intention of the father to give a life interest to his daughter, with the remainder to her children upon her death, is manifest; and, indeed, is declared in almost so many words upon the face of the instrument itself. This is a lawful limitation of personal property; and we know of no rule of law that requires us in such transactions to look to the form of the expression and disregard the substance. The judgment must be affirmed.


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    Lockridge et al., Respondents, v. Upton et al., Appellants.
    1. A notice given to the holder of a promissory note, by one who had signed the same as a security, in the following form : l< Sir — You are hereby notified that I will not stand good as security any longer on the note you hold against Wm. Upton and myself as security. [Signed] A. B.” — is not a sufficient requisition to sue within the meaning of the act concerning securities. (B. C. 1845, p. 998.)

      Appeal from Randolph Circuit Court.

    This was a suit upon a promissory note against Wm. Upton and G. W. Dameron. The defence set up by Dameron was that he had signed the note as security for Upton, and that plaintiffs had failed to institute suit against the parties liable on the note within the requisite time after a requisition to sue given by Dameron to one of the plaintiffs, who were the payees of the note. The notice given by Dameron was not produced, it having been lost; but it was proven by parol evidence to have been as follows: “ W. Y. Lockridge: Sir — You are hereby notified that I will not stand good as security any longer on the note you hold against Wm. Upton and myself as security. [Signed] George W. Dameron.”

      Reed, Denny and Prewitt, for appellant,
    cited Routon’s Administrators v. Lacy, 17 Mo. 899 ; 2 Yerg. 476 ; Beattie V. Butler, 21 Mo. 314.

      Burckhartt, for respondent,
    cited R. C. 1845 ; Parish v. Gray, 1 Humph. 88 ; Greenawalt v. Kreider, 3 Barr, 264 ; Cape v. Smith, 8 S. & R. 110; Sappington v. Jeffries, 15 Mo. 698.
   LEONARD, Judge,

delivered the opinion of the court.

The notice was that defendant “ would not stand good as security any longer,” and we think the Circuit Court was right in declaring it to be insufficient as a requisition to sue within the meaning of our statute. In Greenawault against Kreider, (3 Barr. 265,) the security, after referring to a note held by the party against a third person, in which the party giving the notice and another were sued to be bail, formally notified the payee that “ he would no longer be considered bail,” and requested him 11 to take another bond from the principal or payment,” and this was held to be an insufficient requisition to sue, and the remarks of the court in that case are marked with much good sense. The request “ to take payment,” it is said, might perhaps be taken as a bint to sue, but a hint is not enough. There ought to be an explicit direction to sue, that there may be no misapprehension of the meaning. It is as easy to speak out plainly as mysteriously, and there would be no certainty in the rule if it left the courts to grope for the meaning of the party among ambiguous words. Cases will arise in which it would be difficult to determine, and in the end there would be no rule at all. Nor would the creditor know how to keep himself safe unless he were to fly at the principal 'on the first intimation of the surety’s impatience. In Parrish v. Gray, (1 Humph. 88,) “I wish you to' collect the debt of Poison, wherein I am security,” was held to be insufficient as a notice to sue, within the meaning of the Tennessee statute upon the subject. No set form of words is necessary. The notices are usually drawn up by the parties themselves, without the aid of counsel, and nothing more ought to be required than a substantial compliance with the statute. But then it is to be .observed that they are given to as well as by plain men, and that the former act upon them without the aid of counsel to guess out their' meaning ; and we must take care that the surety is required to express his meaning so unequivocally that one unlearned in the law may understand, without difficulty, what is demanded of him. What would be a sufficient hint to a lawyer would perhaps fail altogether in suggesting to one unlearned in the law that he was required forthwith to collect his debt by suit. The judgment must be affirmed.