text:
    Tutt & Baker, Appellants, v. Addams, Respondent.
    1. Where a bill is drawn by a partnership firm in favor of a creditor of such firm upon another firm, and is accepted in the name of the firm drawn upon by a partner thereof, who is also a member of the drawing firm, it can not be inferred from these facts alone that the purpose of the parties, or that the effect of the transaction is to subject the funds of the accepting firm to the payment of the debt: these facts alone appearing, a member of the firm drawn upon, although he may not he a member of the drawing firm, and may not have assented to the acceptance, will not thereby he exonerated from liability on the acceptance. The 'acceptance prima facie is on partnership account.

      Appeal from Weston Court of Common Pleas.

    This was a suit against Addams as acceptor o£ a bill of exchange drawn in favor of plaintiffs by the firm of D. & T. S. McDonnell, upon the partnership firm of McDonnell & Addams, of which latter firm defendant was a member. The following facts were agreed upon as the facts of the case: “ That the draft on which the suit is brought was drawn in favor of the plaintiffs for a debt which was due from D. & T. D. S. McDonnell alone to plaintiffs, and in which debt Addams had no concern ; that after it was so drawn, it was accepted in the name of the firm of McDonnell & Addams by T. D. S. McDonnell, a member of the firm ; and that he accepted the draft without any authority in fact, or assent, from said Addams, unless he had such authority by virtue of being a member of the partnership of McDonnell & Addams, which was a usual partnership in mercantile trade; that the firm of McDonnells & Addams was a distinct firm from that of D. & T. D. S. McDonnell ; and that in the latter firm Addams had no interest.” Upon the facts so agreed, the court ruled, among other instructions which it is unnecessary to notice, that the acceptance was not binding upon Addams, and that the jury should find for the defendant; whereupon plaintiffs took a non-suit, with leave to move to set the same aside, which motion having been made and overruled, plaintiffs appealed to this court.

      Abell & Stringfellow, for appellants.

      Gardenhire, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

This cause has not been tried under proper instructions from the court, and the judgment will therefore be reversed and the case remanded, although it may well be that the trial we now order may result in disclosing that the plaintiffs have no title whatever to recover. The law applicable to the transaction would seem to be plain enough if the facts of the case were fully developed; but we can not declare, as a matter of law, upon this imperfectly stated case, in the language of the court that tried the cause, that the plaintiffs can not recover.

In ordinary commercial partnerships, like the present, each partner has authority to draw and accept bills in the name of the firm, and this is implied from the propriety and necessity of it, in order to carry on the partnership business, and therefore it does not rightfully extend to the drawing and accepting of bills on account of affairs foreign to the partnership. But even such bills are binding on the firm in the hands of bona fide holders for value, although they do not oblige the partnership in favor of one who had notice of the real consideration, or who gave no value. The invalidity of bills thus drawn, beyond the scope of the partnership business, is said by some courts to proceed from the want of power in the partner to bind his co-partners in such transactions, while, according to other courts, it proceeds from the participation or collusion of the holder in the unlawful act of the partner ; but the practical result is the same, no matter upon which ground the admitted invalidity is placed, whether upon thé want of power or the fraud. (Per Bronson, in Wilson v. Williams, 14 Wend. 146, 158.) Itris no part of the business of mercantile partnerships to draw or accept bills in order to pay the debts of the individual partners, »or as security for third persons, and consequently such transactions by one partner are, as between him and his co-partner, /beyond his lawful authority, and contrary to his duty, and cremate no obligation against the other members of the firm in favor ' of the separate or second creditor, unless they assent to this use of the partnership name ; but it has been supposed that there was a difference of opinion between the English and American courts as to the question upon whom the burthen of proving this consent rested. It seems to have been long well settled in this country, that if a partnership obligation be given for the private debt of one partner, or as security for any third person, the transaction carries on the face' of it notice that the act is beyond the partner’s authority, and so devolves upon the creditor the necessity of showing the consent of the other partners to the transaction; but it was formerly thought that the English rule was, that such instruments were binding unless it was affirmatively shown that the creditor knew that the partner dealing with him had no authority to use the partnership name in that way. (Joyce v. Williams, 14 Wend. 141; N. Y. F. Ins. Co. v. Bennett, 5 Conn. 575; Maudlin v. The Br. Bank of Mobile, 2 Ala. 503, 512; State v. Catskill Bank, 18 Wend. 466, 477; Ridley v. Taylor, 13 East. 175.) However, in the recent case, decided in 1830, of Frankland v. McGusty, before the privy council of England, (1 Knapp’s Privy Council Cases, 274,) the Master of the Rolls reported the English law on this subject to be, “ that, if there be nothing more in the case, bills drawn by one partner for a separate debt, in the partnership name, could not be recovered upon as against the-partnership firm without proof by the creditor of the assent of the partners to the formation of the bills, unless there were-such circumstances in the transaction from which the creditor-might reasonably infer that the bills were given with the consent of the other partners, (as in the case of Ridley v. Taylor, 13 East. 175,) and that upon proof of such circumstances if lay upon the partners to prove the fraud.”

In the present case, therefore, if the bill had been drawn by T. D. S. McDonnell in the name of McDonnell & Addams, on-D. & T. D. S. McDonnell, in payment of a debt the latter owed the plaintiffs, the transaction would have been of itself,, standing alone, a direct misapplication of the partnership funds, and would not have bound the defendant without proof of his assent to it. But that is not the case we are dealing with. This bill was drawn by the firm of the two McDonnells on the-firm of McDonnell & Addams, payable to the plaintiffs in discharge of a debt due to them from the drawers, and accepted: in the name of the drawees by T. D. S. McDonnell, a member' of both firms ; and as an accepted bill is in theory a transfer by the drawer to the payee of a debt due to the former from the person on whom the bill is drawn, if the present transaction was in fact what it in form purported to be, it was an application by the McDonnells of their own property to the payment of their own debts, by turning over for that purpose to their own creditors a debt due to themselves from the defendants’ firm. But the real transaction may have been altogether different from the formal one ; and as the parties were at liberty, notwithstanding the form in which they had clothed their act, to show the real nature of it in order to ascertain their respective rights and duties, the question in the case was, whether the agreed facts repelled the prima facie case shown by the bill of exchange, and made out a case for the defendant that authorized the court to tell the jury that the plaintiffs could not recover, without some proof from them that the defendant assented to the use that had been made of the partnership name ; or, in other words, (as there was no such consent in the agreed case,) that the plaintiffs could not recover. If the present bill was drawn by the McDonnells, in the regular course of business, upon their own funds in the hands of the McDonnell & Addams, and delivered to the plaintiffs in payment of what the drawers owed them, and the plaintiffs afterwards presented it at the house of the defendants’ firm for acceptance, where it was accepted in the name of McDonnell & Addams, (although by the hand of T. D. S. McDonnell,) upon the credit of the funds in their hands belonging to the drawers, the acceptance was, of course, within the lawful authority of McDonnell as partner, and bound his co-partner without further proof. If, however, it was the purpose of the drawers and payees of this bill to pay off the indebtedness of the former to the latter with the acceptance of the defendants’ firm, and thereby substitute that firm in the place of the plaintiffs as the creditors of the McDonnells, and the accepted bill now sued on was adopted aS a convenient instrument to effect this purpose,- the transaction was beyond the scope of McDonnell’s authority as a member of the firm of McDonnell & Addams, and a fraud upon Addams, and can not be allowed to bind him in favor of the plaintiffs without proof of his assent to the arrangement; and the same result would follow, although the plaintiffs were not parties to such a purpose, if the circumstances of the transaction were such as reasonably to indicate that such would be the effect of it. There is however nothing in the agreed case to repel th¡e presumption arising naturally from the form of the transaction, unless we give that effect to the naked .fact that the bill was accepted by T. D. S. McDonnell, a member of, the drawing firm, and whose liability therefor, as such, was to be paid by the bill. Both the drawing and the accepting of a bill by one partner in the partnership name is prima facie evidence that the transaction is a partnership account, and of course binds all the members of the firm in the first instance without further proof ; but if it be shown that the purpose of the parties to the transaction was to pay off the separate debt of the partner, who drew or accepted the bill, out of the partnership funds, the presumption is repelled, and the separate creditor must give proof that the other partners authorized the act. If the creditor take a bill drawn by his separate debtor in the partnership name, the transaction itself, without any further proof, discloses the unlawful purpose; but it is otherwise, if, as in the present ease, the creditor take a bill from his own debtors, drawn by them upon another firm, and this bill is afterwards, in the usual course of business, accepted in the name of the firm drawn upon, although by a partner who is also a member of the drawing firm. We can not, in such a case, infer as a matter of law from this latter fact, standing alone, and without any regard to the other circumstances of the transaction, that the purpose of the parties, or even that the effect of the transaction, is to subject the funds of the acceptors to the payment of the debt. This judgment, therefore, must be reversed, and the cause remanded, that the circumstances of the case may be more fully disclosed, and the court enabled to administer justice to the parties, without groping about in the dark among supposed legal presumptions, in order to get at tie right of the case.

Judge Ryland concurring,

the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: LEONARD, Judge, Scott, Judge,

license: Public Domain

text:
    Layson, by his Guardian, Respondent, v. Rogers, Appellant.
    1. A. executed a deed of gift of a slave to B. with a reservation to the donor during her lifetime of a the use and benefit of the labor” of the slave — the donee to take possession at the death of the donor; held, that this deed, being unrecorded and unaccompanied with possession in the donee, was void, under section four of the act concerning fraudulent conveyances, (R. C. 1845, p. 526,) as against a subsequent purchaser from A., though with notice. (Scott, L, dissenting, holding that said section contemplated a deed of gift of an interest to take effect presently in possession in the donee.)

      «Appeal from Platte Circuit Court,

    This was a suit for the possession of a negro slave. The plaintiff, William L. Layson, claimed title by virtue of the following instrument: “ For and in consideration of the sum of one dollar, to me paid in hand by Mary C. Layson, for William L. Layson, the receipt whereof is hereby acknowledged, and for the love and friendship for said William L. Layson, my grandson, I, Hannah Layson, do hereby grant, bargain and sell to said William L. Layson, a negro boy named James Washington, commonly called Washington. Said boy was born my property, and is a slave for life — reserving to myself the use and benefit of the labor of said boy during my lifetime, but at my death to be the property of said William L. Layson; and this deed of gift and bill of sale authorizes and empowers said William L. Layson to take and keep possession of said boy at or immediately after my death. Given under my hand and seal, &c. [Signed] Hannah Layson. (Seal.)”
    Rogers, defendant, claimed title to said negro by virtue of a deed of transfer of a date subsequent to that of the deed above set forth. The remaining facts of the case sufficiently appear in the opinion of the court.

      Gardenhire and Sail, for appellant,
    cited R. C. 1845, p. 526, sec. 4; Cook v. Clippard, 12 Mo. 379 ; Bryson v. Pe-nix, 18 Mo. 15 ; 15 Mo. 420.

      J. W. Morrow, Davis, Wilson and Hardin, jr., for respondent.
    I. The smallest consideration is sufficient. (4 Kent Com. 440 ; 3 Johns. 491 ; 8 Cow. 430; Story’s Contracts, 431.)
    II. A conveyance voluntary, without delivery of possession, is good between the parties. (R. C. 1845, p. 526 ; 3 Litt. 278 ; 2 Brevard, 38; 9 Gill & Johns. 77 ; 9 Port. 65 ; 5 Hump. 392; 7 Harr. & Johns. 257 ; 5 Pet. 264 ; 12 Johns. 536.)
    III. A voluntary conveyance is good against a subsequent purchaser with notice. (Lancaster v. Doland, 1 Rawle, 231; Foster v. Walton, 5 Watts, 378 ; 5 Watts, 456; Sprise v. McCoy, 6 Watts & Serg. 485 ; Hudnal v. Wilder, 4 McCord 295, 310; Maultin v. Jennings, 2 McMullen, 508 ; Howard v. Williams, 1. Bailey, 575 ; Bank of Alexandria v. Patton, &c., 1 Robinson, Ya., 500, 540 ; Carprew v. Arthur et al., 15 Ala. 525; Farmers’ Bank v. Douglass, 11 Sm. & Marsh. 472, 548 ; Bohn v. Headley, 7 Harr. & Johns. 257 ; Cathcart v. Robinson, 5 Pet. 265, 280 ; Yerplank v. Terry, 12 Johns. 536; Jackson v. Town, 4 Cow. 6a; 2 Leigh, 84 ; 3 Grat-tan, 35 ; 3 Strobhart, 62.)
    IY. It is admitted that Hannah Layson continuing in possession of the slave conveyed, and the omission of the plaintiff to have his deed of conveyance recorded, (if it be considered a deed for a consideration not deemed valuable in law,) according to the fourth section of the statute upon fraudulent conveyances, makes such conveyance void per se ; but it is only as against creditors and subsequent purchasers in good faith. A purchaser with notice can not claim to be a purchaser in good faith. Actual notice of a prior claim is considered per se evidence of “ mala jides /’ that the word purchase, as used in the fourth section, means a purchaser in good faith. Therefore defendant’s subsequent purchase, with notice of the plaintiff’s prior claim, was made in fraud of bis rights, and is void in law. (Jackson v. Burgott, 10 Johns. 459 ; Dunham v. Day, 15 Johns. 568 ; Jackson v. Post, 15 Wend. 594; IT Wend. 27-; Sanger v. Eastwood, 19 Wend. 514 ; 4 Kent Com. 169.)
   LEONARD, Judge,

delivered the opinion of the court.

There are three classes of cases in which our written law provided, as early as 1816, that the possession of personal property should be considered as the real ownership in. favor of creditors and purchasers from the party in possession, unless the true condition of the title was manifested by a deed or will. authenticated and recorded in the manner prescribed for that purpose — a gift, from one who continued in the possession notwithstanding the gift — a loan, where the borrower had remained five years in the uninterrupted possession of the thing borrowed — and all limitations of personal property, by way of condition, reversion, remainder or otherwise, where the future right was separated from the present possession. (Act of January, 1816, 1 Terr. Laws, 489.) And subsequently, at the revision of 1845, a similar provision was made in reference to mortgages and deeds of trust of personal property. (Tit. Fraudulent Conveyances, sec. 8.) The act of 1816 did not originate here, but came to us from Virginia, from whose statute book (12 Henning’s Statutes) it has been copied into the laws of several of the western states ; and the provision of 1845 was adopted from the Massachusetts act in relation to mortgages of personal property. (Rev. Stat. of Mass. ch. 74, sec. 5.) The main, indeed the only, purpose of these statutes being, not the protection of the. party himself, but to suppress frauds upon creditors and purchasers, which were found to be so easily perpetrated by means of feigned or secret transactions of this character, it has been frequently insisted in the application of them to cases occurring in real life, that, if the party has actual notice, it was equivalent to the recorded instrument, and ought to be so considered in construing them, in analogy to the construction that was originally adopted in reference to the required registry of conveyances of real property, in order to render them valid against the same class of persons. But this construction has, it is believed, been uniformly rejected' in reference to the act of 1816, not only in Virginia, where the act seems to have originated, but also in all the states where it' has been re-enacted; the courts holding that the object of the legislature, in the particular cases provided for, was, whenever the possession was separated from the right of property, to place the latter where the apparent ownership was in favor of creditors and purchasers, unless the transaction was accompa- • nied by a recorded instrument, and in this manner to shut out and conclude in all such cases all questions as to the real title. Accordingly, it was decided in Virginia, in 1811, in Gay v. Moseley, (2 Munf. 543,) that five years’ continued possession, of a slave by the borrower transferred the ownership to him in favor of a creditor who had actual notice of the unrecorded deed, and the same doctrinéis acted upon in Tennessee. (Andrews v. Hatfield, 3 Yerg. 39,) and a similar construction seems to prevail in Massachusetts in reference to their provision concerning mortgages of personal property (Travis v. Bishop, 13 Metc. 304); and this court adopted the same construction-of the act of 1816 in Cook v. Clippard, (12 Mo. 379,) where it was determined that the purchaser of a slave from a borrower, who had continued in possession five years without any recorded instrument manifesting the loan, acquired the title, although he purchased with full knowledge of the circumstances. These decisions, we may remark, do not conflict with the English adjudications upon their registry laws. These acts contain no exception excluding from their operation a party having notice, and the English law courts never ventured to put such an exception into them by construction. It is true, the English court of chancery did this substantially by holding that, although the statute bound the legal title, the notice bound the conscience of the second purchaser, and converted him, notwithstanding the statute, into a trustee of the legal title for the benefit o£ tbe party who by bis first purchase was justly entitled to tbe land ; but yet this equity precedent would bardly justify us, when called upon to put a legal construction upon tbe act, now under consideration, in declaring that creditors and purchasers with notice are excepted out of its operation. Indeed, this equity doctrine of notice has thus far, it would seem, been confined in England to conveyances of real property, which is subject to a double ownership, equitable as well as legal, and it is by no means certain that a court of equity would extend it to transfers of personal property, which the interests of commerce and the convenience of daily life would seem to subject to a different consideration. In answer to the case of Sanger v. Eastwood, (19 Wend. 161,) to which we have been referred in argument, we may remark, that the construction there given to the provision in the New York code concerning mortgages of personal property proceeds upon the peculiar language of their act. Bona fide creditors and purchasers are the words there used, and the same words in their registry laws for the conveyance of real property having been previously construed, by reference to the equitable doctrine of notice, to exclude such as had notice of the true condition of the title, the same construction was applied to them here, and resulted in the decision referred to. But our legislature have not incorporated this doctrine into our statute now under consideration, either by excepting out of its operation parties with notice, as they have provided in reference to parties who have notice of unregistered-conveyances of real property, or by expressly confining the act to bona fide creditors and purchasers, as is done in the New York act; and their omission to do so would seem to furnish an additional, if not a conclusive reason, against our incorporating it into the law by judicial construction.

In the case now before us the instrument of gift transfers-the slave, reserving the use and benefit of his labor to the grantor during her life, and expressly authorizes the grantee to take possession of him as his property at her death. It purports on its face to be made in consideration of the love the grantor bears ber grandson, the grantee, and is designated by the party herself as a “ deed of gift and bill of saleand the. instruction of the court was, that, although not recorded, it was valid between the parties to pass the title, and that it was also valid against the defendant if “he purchased with notice of the prior transfer.” The instruction, it is thus seen, proceeds upon the assumption that an unregistered gift, in good faith, unaccompanied by the possession, is valid against a subsequent purchaser with notice ; and whether this be so, is the question that has been argued before us as the turning point in the case, and upon which therefore we shall determine it. In the construction of the statute there is no difference in reference to the matter of notice between a loan and a gift, and assuming that the transaction between the grandmother and the grandson was a gift (and such apparently was its real nature, no matter what form it may have assumed), according to the case of Paul and Clippard the title remained in the giver, notwithstanding the gift, in favor of a purchaser with notice of the unregistered gift, and the second instruction given at the instance of the plaintiff was therefore erroneous.

It has been suggested that the statute embraces only gifts of present interests, because they only are capable of being accompanied by the possession, and that it ought not to be construed to extend to future estates in personal property like the present, which it is said must be looked upon as substantially a remainder to take effect in possession after the expiration of the grantee’s life interest; but we do not feel the force of this suggestion. Both the words and the spirit of the act extend equally to gifts of future as well as present interests, and we see no ground whatever for making any distinction between them in the construction of the statute, unless it be that every future interest is to be considered as falling within the clause that provides for limitations by way of condition, remainder, &c., in which event the present limitation, if unregistered, would be void even if founded upon a valuable consideration. But this matter has not been argued before us, and we refrain from expressing any opinion about it. It is -enough for the case now presented, that, in our opinion, a gift is void against a purchaser, whether it be of a present or of a future interest, unless it be accompanied by the possession of the thing given, or by a recorded instrument of gift, and the! result is the judgment must be reversed, and the cause remanded for a new trial; and, Judge Ryland concurring, the court so order.

Scott, Judge,

dissenting. The question discussed in the argument of this case was, whether the conveyance to Wm. L. Layson, being a voluntary one and unrecorded, could prevail against Wm. Rogers, the defendant, who was a subsequent purchaser with notice of the prior unrecorded voluntary deed.

The question which weighs on my mind is, whether the deed to Layson is within the meaning of (he fourth section of the statute concerning fraudulent conveyances. The deed in question only conveys an estate in remainder to Layson. His right to the slave mentioned in the deed was not to begin in enjoyment until the determination of the previous life estate reserved to the grantor. The statute provides that every gift of slaves, not for a consideration deemed valuable in law, shall be void against all purchasers, unless possession shall really and bona fide accompany such gift. From this language, I am inclined to the opinion that a gift of the nature of that under consideration is not within the words of the statute. The gift contemplated by this section is one in which the thing given is designed to be the property immediately of the donee, to take effect in possession presently. This construction of the statute harmonizes with the common law. That system of law only affects with fraud those conveyances which seek, contrary to the nature of the transaction, ty/separate the use or possession of property from its titl<|/ Where there is an absolute sale or gift of chattels, the nature of the alienation requires that immediate possession should follow it. This case is as if a grantor, for a valuable consideration; should convey to a purchaser a chattel for a limited period, and at the same time should grant his re-versionary interest in the chattel to a donee. Is there any principle which, in such case, would defeat the title of the do-nee ? I know of none, unless it is a rule of law that no valid remainder in a chattel can be created but by deed duly recorded. There is nothing in the fifth section' of the act which is opposed to this view of the subject. That section was designed to prevent an owner loaning property from parting with its possession to another for. a limited time, and reserving an interest in it to himself. Here, there is nothing of the kind. This is a gift to take effect in futuro. It is created by deed, and is like those numerous instances in which the law protects ‘an interest in a chattel which is not reduced to possession. Nobody will pretend that the owner of a slave- may, not loan him for a limited period, and at-the time of the loan convey the reversiona-ry interest in the slave to another without a recorded deed. If a slave is hired for a number of years, may not the owner convey his reversionary interest without a deed duly recorded ?

The case of Bryson & Hardin v. Penix, (18 Mo. 18,) shows that a purchaser of personal estate is not affected by any notice of an unrecordéd deed under the statute concerning fraudulent-conveyances.


author: LEONARD, Judge,

text:
    Canefox, Respondent, v. Crenshaw, Appellant.
    1. Where a buffalo bull, a wild, vicious and mischievous animal, breaks into a close, the owner of such close may kill him if this be necessary to preserve his property from destruction, although the close may not be fenced in the manner required by the act regulating inclosures. (R. C. 1845, p. 575.)

      Appeal from Greene Circuit Court.

    Plaintiff, in this action, sought to recover damages for the killing by the defendant of a buffalo bull. The following answer (the striking'out-of which constitutes the error complained of) was struck out,, on motion of plaintiff: “ And the said defendant, for answer to plaintiff’s petition, says-, as to killing said bull in plaintiff’s petition mentioned, that before tbe time of. said killing, had been and was accustomed to doing mischief to-said defendant’s cattle — had been and was accustomed to jump into the inelosures of defendant oyer a good fence- — the said-bull being a buffalo bull, and being a wild and mischievous animal, worried the cattle of said defendant in said inclosures, and injured the fruit trees — and said bull, while in said inclosure of said defendant and at the time of so killing, was in the-act of destroying the property of defendant, and the said bull was endeavoring to get defendant’s cows with calf — and said bull, outside of said inclosure, and on the lands of the said defendant was then and there doing damage to defendant’s cattle, which said defendant then and there owned — his cattle of good stock, and which he was anxious to improve — and said buffalo bull was jumping on and endeavoring to get them with calf and worrying them — and did then and there do them great damage, of which plaintiff was aware, and had full notice of the same — and the said defendant says that the said bull being so accustomed as aforesaid first before said killing of said bull by said defendant, was in the inclosure of defendant, having jumped a good fence of said defendant, and was then and there destroying the property of defendant, and the said bull being then and there a wild and vicious and mischievous animal, the property of defendant’s was then and there endangered and destroyed by said bull of the value of one hundred dollars in said inclosure there situate, and for which reason and because the said bull could not otherwise be restrained or hindered from worrying the cattle of said defendant and destroying the property of defendant, he, the said defendant, at the time mentioned in plaintiff’s petition, did kill said bull, as it was lawful for him to do, for the causes hereinbefore stated, which is the killing of said bull, mentioned in said petition, whereof the plaintiff hath complained against the defendant in this petition, and now praying fully answered, prays to be herein dismissed without his costs.

      Otter and Hendricks, for appellant.

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

delivered the opinion of the court.

We must reverse this judgment. The answer alleges substantially that the buffalo bull was a wild, vicious and mischievous animal — that he had broken into the defendant’s field, and was in the act of destroying the defendant’s property of the value of one hundred dollars, when the defendant killed him, not wantonly but from necessity, because he could not otherwise be restrained. Without undertaking to determine the precise conditions that will justify the killing of such an animal, we may safely assert that if the facts be as here stated, the killing here complained of was quite justifiable not only in a legal but in a moral point of view. In every system of jurisprudence there are cases in which the law allows a party to protect his own rights without appealing to the courts for that purpose, and by the common law one may not only defend his property from impending wrongs, but may in some cases re - dress his own injuries. When we are forcibly attacked in our property we may repel force by force, and the breach of the peace that happens is chargeable to our adversary ; and when unlawfully deprived of it, we may retake it wherever we can find it, so that.it be not done in a riotous manner, or attended with a breach of the peace. We may, ourselves, abate a nuisance that is injurious to our rights, doing no unnecessary harm, and take and detain animals that are trespassing upon our land, not merely to prevent a continuance of the wrong, but to constrain their owners to make satisfaction for the damage already done. (3 Stephen’s Com. 361; Earl of Lonsdale v. Nelson, 2 Barn. & Cress. 311.) And upon these established principles it is plain enough that if this animal was about to destroy the defendant’s property, the defendant had a right to kill him, to prevent the impending injury, although it might have been otherwise if the property endangered had been of trivial value, so as to have rendered applicable the maxim de minimis lex non curat y” or if tbe defendant Had at band other means of preserving his own property from destruction besides the destruction of his neighbor’s.

In coming to this conclusion, we of course assume that the bull was unlawfully in the defendant’s field, as he undoubtedly was, unless it was the duty of the defendant to have fenced against him. But if such was the defendant’s duty and he neglected to protect himself by a lawful fence, and in consequence of this failure the animal strayed into his field and did the mischief complained of, the damage would be attributable to his own fault, and he of course would be without remedy, either judicial or extra-judicial. The defendant, however, was under no such obligation, either at common law or under the provisions of our statute concerning inclosures. In 3 Dane’s Abr. c. 76, art. 9, sec. 19, it is said: Anciently every man was bound to keep even his cattle at his peril so that they injured not his neighbors. This principle extended to all the animals a man kept; to fence or build against them to restrain them was no part of the system ; and this principle remains the same in most parts of Europe, and hence fences are not common. But several centuries ago, the principle was done away in England and that of fences substituted, and thence it became a general principle there, as it has been here, [in Massachusetts,} for each occupant to fence his land in certain proportions, and to rely on fences for its protection. But the general principle Was thus altered only in regard to creatures properly re-strainable by fences, as horses, cattle, sheep, &c., but notin regard to animals not restrained or kept within bounds by common fences. ¿Is to them the ancient principle is still in force, and their owner must keep them at his peril.” Accordingly, Hale (1 Pleas. Cr. 430) remarks, in reference to animals 11 feme natures,” that “ the owner must, at his peril, keep them up safe from doing hurt; for, though he uses his diligence to keep them up, if they escape and do harm, the owner is liable to answer in damages.” But it is proper to observe here that the duty to fence against animals, referred to in tbe above extract from Dane’s Abridgment, is not a duty imposed by the common lawf but exists by prescription only, and is limited not merely to domestic animals, but to such domestic animals as are rightfully on the adjoining land. (Rust against Low, 6 Mass. 90; Dovaston v. Payne, 2 Hen. Blac. 527; 6 Bac. Abr. “Trespass,” 92, p. 594; Holladay v. Marsh, 3 Wend. 146.)

Several of the states have prescribed by statute what shall be deemed lawful fences, and provided the penalties to be inflicted on the owners of domestic animals that break through them and do damage; and in some of these states it has been holden that the effect of these provisions is to impose upon a party the duty of inclosing his field with a lawful fence, in order to entitle him to an action for any damage done there by domestic animals, although this has been determined otherwise in other states. (Studnell v. Ritch, 14 Conn. 300; Seely v. Peters, 10 Illinois, 146; Rust v. Low, 6 Mass. 90; Little v. Lathrop, 5 Greenl. 358; Chambers v. Mathews, 3 Harr., N. J., 368.) But if, in the construction of our statute of inclosures, we hold that a party must fence his field with a lawful fence before he can complain of damage done to him there by the animals of others, we must of course limit this immunity to the domestic animals enumerated in the statute against which he is bound to fence, and this will leave the owners of animals ‘‘ferae natures'-” under the same obligation to keep them at their peril from doing harm that the common law imposed upon them.

Under any view of the law, therefore, upon the facts stated in the answer, the plaintiff would have been liable for the damage about to be done to the defendant by this animal, and if the circumstances were such as we have enumerated, the defendant was at liberty to protect his own property by killing the animal that was about to destroy it; but under what precise conditions he could lawfully resort to such a measure, can not and ought not to be determined until the facts of the case are more fully developed. It is sufficient for the reversal of the present judgment that if the facts substantially stated in the answer be made out in tbe proof, they are sufficient to justify the killing here complained of.

The judgment is reversed, and the cause remanded.


text:
    Withers, Respondent, v. Steamboat El Paso, Appellant.
    1. The master of a steamboat will be liable, under section 31 of the act concerning slaves (R. C. 1845, p. 1018), for transporting a slave from one place to another in this state without the consent of the owner, although he may not be aware of the fact of such slave being on board the boat, unless he use proper care to guard against such an occurrence.
    2. The degree of care required of the master in such case is not “ the strictest diligence,” but such care as thoughtful and prudent men engaged in affairs equally hazardous to their own rights of property would take in order to protect themselves from loss and injury.
    3. The deposition of a master of a steamboat, which had been seized under the act concerning boats and vessels for the transportation by the master thereof of a slave from one place to another in this state without the consent of the owner, and released upon the giving of a bond by the master with security, under the ninth section of said act, is inadmissible in evidence in favor of the master and his securities. Admissions and declarations made by the master are admissible in such case in evidence against him.

      •Appeal from, Ray Circuit Court.

    This was a proceeding, under the act concerning boats and vessels, against the steamboat El Paso, to recover damages for the wrongful transporting upon said boat, by the master thereof, of a slave of plaintiff, named Ann, from the city of Lexington to the city of St. Louis. The boat was seized, and, upon the giving of bond by the master, Thornburgh, with security under the ninth section of the act concerning boats and vessels, was released. Thornburgh, the master, answered, denying all the material allegations of the petition. Upon the trial, the plaintiff was permitted, against the objection of Thornburg, to introduce in evidence declarations of Thornburg, the master, (made before the institution of this suit,) amounting in substance to admissions that the slave Ann had been transported upon tbe El Paso from Lexington to St. Louis. A deposition of Thornburgh, the master, was offered in evidence, but was ruled out upon the objection of plaintiff. The court, upon its own motion, gave the following instruction: “To constitute a transportation of the slave by the master of the boat which would render the boat liable, such transportation must be the act of the master of the boat; if the slave was transported on the boat without the knowledge or consent of the master of the boat, and the master of the boat could not by the exercise of the strictest diligence as master of the boat have ascertained that the slave was being transported on the boat, then the boat is not liable ; but if the master knew the slave was transported and did not prevent it, or if, by the exercise of the strictest diligence as master of the boat, he could have discovered and prevented such transportation, and he failed to do so, and the slave was transported on the -boat, then the boat is liable.”
    Other instructions were given and refused, but it is unnecessary to notice them. The jury found for plaintiff, and judgment was rendered against Thornbui’gh and his securities on the bond.

      W. Adams, for appellant.
    I. The declarations or admissions of Thornburgh, the master of the boat, made subsequent to the supposed transportation of plaintiff’s slave, were inadmissible as evidence, first,, because he had no power or authority, after the transaction, to bind the boat by any admission or declaration (see R. C. 1845, p. 182, 186 ; 1 Greenl. Ev. § 113 ; Price v. Thornton,, 10 Mo. 140 ; Rogers v. McCune, 19 Mo. 529) ; and secondly,, because Thornburgh himself was a competent witness, and. what he might have stated to others was mere hearsay.
    II. Thornburgh was a competent witness for the boat,.and the court erred in excluding his deposition. Although he was master of the boat, he was not an owner, and did not become a part owner till long after the slave was taken off. The fact of his giving bond for the value of the boat did not render him incompetent. He was only individually liable. The suit was not defended for his benefit, and he was competent under the new code of practice. (See Sess. Acts, 1849, p. 99, 100 ; Steamboat Madison v. Mills, 14 Mo. 360 ; same v. same, 18 Mo. Mo. 99 ; 19 Mo. 505.)
    III. This suit is founded on the 32d section of Article I. of the act concerning slaves (R. C. 1845, p. 1018). It is a penal statute, and ought to be strictly construed; and to render a boat liable under this statute, the slave must have been transported with the knowledge or by the consent of the master, commander or owner; and it was not necessary in such case that any greater care or precaution should be used than a prudent man would exercise in the management of his own business.- A party might be liable at common law when he would not be liable under the statute. The assent of the mind is necessary to constitute a violation of a penal or a criminal statute. (Price v. Thornton, 10 Mo. 140.)

      Napton, for respondent.
    I. Capt. Thornbugh was not a competent witness, because, first, he was a party to the suit. He was principal in the bond by which, under the act concerning boats and vessels, the boat was discharged. A suit which is to affect the interest of any one other than the party complaining, implies that there is a party defendant. Boats and vessels, by a sort of legislative personification, are made to assume this position; but the steamboat El Paso was no longer a defendant in this case. After she was discharged under the bond, she was totally dismissed from the jurisdiction of the court, and no more to be affected by any thing done or determined by that court than if no such suit had never been instituted. If Capt. Thornburgh was not technically a party, he was, beyond all question, the person for whose benefit the suit was defended. He is the person primarily responsible in this action.
    H. Capt. Thornburgh’s admissions were evidence against him. The declarations admitted by the court were properly considered as part of the res gestee. They were admissible in evidence against Capt. Thornburgh as party defendant, whether parts of the res gestee or not.
    III. One of two constructions must be given to the 31st section of Art. I. of the act concerning slaves (R. 0. 1845, p. 1018). In Price v. Thornton, (10 Mo. 140,) it is intimated, although the question was not raised by the record, that the boat was not liable under this section unless there was an assent actual or implied on the part of the master to the transportation of the slave ; and this is the construction adopted by the circuit judge in the case at bar. Later opinions of the Supreme Court seem to throw doubts as to the propriety of this obiter dictum in Price v. Thornton, and the general impression is that the act was designed and ought to be construed to punish the master or owner for the act of transportation alone, without regard to the question of care or -diligence. It is not necessary to inquire here which is the proper construction. If the judge of Ray county erred in this, his error was in favor of the boat; and if the question of diligence is to determine the responsibility of the master, the court ought to require the strictest diligence; and this seems to be the opinion of this court in Eaton v. Vaughn. In fact the circuit judge adopted the very language of this court in Eaton v. Vaughn.
   LEONARD, Judge,

delivered the opinion of the court.

The main question here (and indeed the only one of any difficulty,) is as to the propriety of the instruction given by the court in reference to the degree of care required of the captain in order to exempt him from liability under the statute against transporting a slave from one place to another, in this state, without the consent of the owner. The defendant insisted that such care as prudent men take in the management of their own affairs was all that was required; but the court instructed that the boat was liable if her master could have discovered and prevented the act by the ‘ strictest diligence.’ ”

In Vaughn v. Eaton, (9 Mo. 743,) which was a common law action of trespass against tbe captain of a boat for carrying off tbe plaintiff’s slave, the Circuit Court instructed that, in order to .charge the defendant, it was not necessary that he should have known that the boy was a slave, nor was it an excuse that he acted in .good faith and used reasonable diligence to guard against being imposed upon, and this judgment was affirmed here upon appeal. But in Price v. Thornton, (11 Mo. 140,) which was a common law action on the case against the owners of the boat for the master’s negligence in carrying off the plaintiff’s slave, under the belief that he was a freeman, there is an obiter dictum, of the judge who delivered the opinion of the court, to the effect, that, in order to bring the transaction within the act of 1840, (the original statute upon this subject, and which is similar in this particular to the existing statute,) the wrong must have been wilfully perpetrated. It seems however, in the present case, to have been assumed at the trial, that, although the transportation of the slave from Lexington to St. Louis was effected without the captain’s being aware of it, yet it was to be imputed to him as his act, so as to subject him to the penalty of the statute if he could have discovered and prevented it by the use of proper care in navigating his boat; and the point contested was, as to the degree of care required of him, whether the greatest care that it was possible to have used was necessary, or whether ordinary diligence was sufficient.

Thibaut, the eminent modern German jurist, in the general part of his System of Law, (ch. 3, div. 1, sect. 140, Lindley’s translation, 129,) distinguishes all transactions forbidden by law into four classes — accidental, when they result from natural causes, over which the human will hasjuo control; voluntary but not imputable, which the person might have prevented, but of the illegality of which he could not have been aware ; negligent, when performed neither with an intention of disobeying the law, nor with a morally wrong intention, but under such circumstances that a knowledge of the illegality of the act might have been attained ; and wilful, when committed by one who, having a knowledge of the law, disobeys it, and with a morally wrong intention. Without stopping to inquire whether this Glassification embraces every prohibited transaction, or indeed whether it is founded altogether upon distinctions that are recognized in our law, it is obvious that the acts included in the first class, not being the result of the human will, can not be imputed to any person as his act; and in re*-ference to the three remaining classes, we remark that, if the girl was transported here under such circumstances that it was utterly impossible for the captain to have known that she was on the boat, (if, indeed, such a state of circumstances can be imagined,) it ought not, we think, to be imputed to him as a violation of the statute; but yet we do not deem it necessary for this purpose that he should have been actually aware of the fact. It is sufficient, although he had no actual knowledge, that he could and would have known it, if he had navigated his boat with proper care to guard against such an occurrence. In ®ur opinion, the transportation of the girl on the boat, although not wilfully committed, must yet, in the construction of this statute, be imputed to the captain as his act, if he might have attained a knowledge of the fact by observing proper care. This construction is warranted by adjudged cases. An act passed in New Jersey before the abolition of slavery there provided that, “ if any one should be found guilty of conveying away a slave, whereby he should be lost to the owner, such person should pay to the owner the value of the slave lost and Gibbons v. Morse, (2 Halst. 253,) was an action founded on the statute against the owner of the ferry-boat between Eli-zabethtown and New York, to recover the penalty incurred by the defendant’s ferryman in taking the plaintiff’s slave across the river, and the owner of the ferry was held liable, although the wrongful act was not wilfully committed •; but at the same time, it was declared that it should have been otherwise, if the boy had entered the boat by stealth and so concealed himself that he eould not have been discovered in the ordinary management of the boat. This construction, too, is necessary in order to make the statute effectual for the purpose for which it was enacted. If we confine the penalty to cases where the master wilfully transports a slave from place to place without the owner’s consent, and exclude from the statute the much larger class of eases where slaves are enabled by the carelessness of a boat’s officers to conceal themselves on board, and in this way effect their escape without the knowledge of the master of the boat, we shall render the statute almost a dead letter, instead of making it what it was intended to be, a substantial protection to the slave property of our citizens residing in the vicinity of our large rivers. And, although this is a penal statute, the construction we adopt is consistent with the established rules of law upon this subject. In Bae. Abr. (tit. “ Statute,” let. I, 10,) it is said that “the statute of Mal-bridge against committing waste is penal, yet it has been construed liberally,” and that “if the extending of a penal statute by an equitable construction, be more advantageous than prejudicial to the greater part of the people, it may by the rules of law be so extended.” It is also to be remarked, that the penalty here inflicted is given to- the injured party as a redress for the private injury sustained, and not imposed as a punishment for a public offence ; and although, as a genera! rule, to constitute a crime against the public, there must be both a vicious will and an unlawful act resulting from the vicious will, it is otherwise in reference to private injuries, where in most eases the intention is immaterial.

Coming down now to the matter discussed at the trial, and assuming that the alleged transportation of the slave occurred without the knowledge of the master of the boat, the question is, under what circumstances it ought nevertheless to be imputed to him as his act, so as to subject him to the penalty of the statute. In the construction of the statute, we have seen that the fact must be imputed to him, although he was not actually aware of it, if he might have known and avoided it by the use of proper care in the navigation of his boat, and we think that this proper eare is such as prudent men use in conducting their own affairs, hazardous to their own rights of property, in order to protect themselves from loss or injury. It is not sufficient that the master used such care as men of less than ordinary prudence take when engaged in their own affairs ; nor is it enough that he used such care even as prudent men are but too frequently satisfied with, when the danger is to the property of others, and not to their own ; nor will it be deemed sufficient that he used such care even as prudent captains generally use to guard against these escapes, if the care these persons take be not in the judgment of men in general proportionate to the probability of injury to others. Our law prohibits the captain of a boat from transporting a slave upon it without the owner’s consent, and whenever such an event occurs, it is imputable to the master of the boat, although not aware of it, if he gave occasion to it by the want of reasonable care in the navigation of his boat to prevent such an occurrence ; and, although the great practical difficulty is in determining what is sufficient care in the particular case, the proper standard for the government of the jury is, such care as thoughtful and prudent men, engaged in affairs equally hazardous to their own rights, generally take in order to prevent what they are doing from resulting in harm to themselves. In order to exempt the master from the penalty of the statute, the law does not exact from him the greatest possible diligence — all that we may imagine could have been done to have prevented the escape of the girl — but only such care as thoughtful and prudent persons would have taken in navigating a boat in the midst of a slave population, to prevent the escape of slaves upon it, if the property endangered had belonged to themselves, instead of belonging to others.

In Vaughn v. Eaton, it was held that the master of the boat was liable, although he used reasonable diligence to prevent being imposed upon; yet it is to be remarked, that the question there was as to a common law liability, and not in reference to the construction of a statute, and the act there complained of being the very act contemplated by the master of the boat, although he was not aware that the person transported as a passenger was a slave, and resulting in a direct and immediate injury to tbe plaintiff, constituted a good cause of action in trespass ; and the rule of the common law, laid down in Weaver v. Ward, (Hobart, 390,) was applicable to the case : “ No man shall be excused of a trespass except it may be adjudged utterly without his fault, as if a man by force take my hand and strike you ; or, if the plaintiff had run across the defendant’s piece, when it was discharging ; or it had otherwise appeared to the court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt.” Here, however, the question is as to the liability of the party to a statute penalty ; and the instruction having assumed that the removal of the slave was effected without the knowledge of the captain, we are not called upon to determine whether the rule that was applied in the case of Vaughn and Eaton would have been equally applicable in the case, if the suit had been for the penalty given by the statute, instead of for the common law redress. It may be, too, that there is a difference in the two classes of cases, even in the application of the statute to them, and that where the transportation of the person is the very act contemplated by the master of the boat, although he is not aware of its illegality, he can not escape the statute penalty unless he were utterly without any fault, or, in other words, unless it was impossible for him to have known that the person transported was a slave ; although it may be otherwise? where the negligence of the master, in navigating his boat, merely gives occasion to the injury by the facility it affords for the involuntary transportation of the slave upon the boat. If the master knowingly transport the person without being aware that he is a slave, the act, it may be, ought nevertheless to be imputed to him as his act within the meaning of the statute, unless it was utterly impossible for him to have been aware of the wrong he was committing, although only the ordinary care of prudent men may be required, in order to take the case out of the statute, where the slave gets upon the boat by stealth and is thus transported without the knowledge of the captain. In tbe one case it may be thought that, as the master contemplates the very act prohibited by the statute, he acts at his own peril, and must answer according to the statute for the act thus voluntarily committed if it turn out that he was imposed upon as to the condition of the person transported, although in the other case he would only be required to use that degree of care in the navigation of his boat that would become a prudent and thoughtful man under similar circumstances, in order to avoid the incurring of a similar injury to his own property. But however this may be, we confine our decision to the facts of the present case; and the view we have taken in reference to the liability of boat owners and masters under our statute, seems to be the same that was taken in South Carolina, in Ellis against Welch, (4 Rich. 468,) as to the liability of a ship’s captain at common law for having negligently given passage to the plaintiff’s slave from Charleston to Philadelphia under the belief that he was a free person. It was insisted that, although the captain acted in good faith, he was guilty of negligence in receiving the boy as a passenger upon the proof furnished that he was free, and the question was as to standard of care and caution that the law exacted of the captain on that occasion. The language of one part of the charge to the jury required “ the utmost care and diligence but the appellate court, taking the whole charge together, declared that this meant “ the utmost that, under like circumstances, the jury would exact from a prudent man engaged in a business hazardous to other people’s rights of property,” and the judgment was affirmed. And this is substantially the degree of care we require from the masters of boats, in order to exempt them from the penalty of the statute, when the transportation occurs without their knowledge. They are engaged in a business very hazardous to slave property, and it is not too much to exact of them, in the construction of this statute, that degree of care to prevent the escape of slaves on their boats that prudent men would take in conducting their own affairs, to guard against similar injuries to their own property, and that honest men feel themselves bound to take in reference' to the property of others. But the instruction of the court went beyond this ; the care exacted was “ the strictest diligence;” and although these words, when taken in connection with other instructions, might not import, as in the South Carolina ease, more than such care as prudent men take in the transaction of a hazardous business, yet there was nothing here to prevent them from being understood by the jury in their largest sense, so as to include every imaginable degree of care that would have tended to the discovery and prevention of the act complained of; and the refusal of the instruction asked by the defendant would seem to indicate that they were used by the court in this sense. We shall therefore reverse the judgment on this ground, that the case may be re-tried with a more perfect understanding of the law that we deem applicable to the case.

The other two points made in the case may be disposed of in a few words. The penalty of the statute is inflicted on the captain for his own act, and the boat is made responsible as an artificial person, for the better security of the party injured. And, although the boat was originally sued in the present case, yet under the provision of the 9th section of the act concerning boats and vessels, (R. C. 1845, p. 180,) the captain and his securities have been substituted as defendants in the place of the boat, which was thereby released, and the judgment to be recovered will be rendered against these substituted defendants, pursuant to the 21st section of the act, and we may therefore treat the case, in reference to the deposition and admissions of the captain, as if the suit had been originally instituted against him. Under this view of the matter, the captain’s deposition was properly excluded when offered in behalf of the defendants, and his declarations, properly admitted against him, not as part of the res gestae, but as the admissions of the real defendant, the party primarily liable for whatever may be recovered in this suit.

Judge Ryland concurring,

the judgment is reversed, and the cause remanded.


author: Leonard, Judge,

text:
    Burns, Respondent, v. Hayden, Appellant.
    1. Where it appears that at the time of a sale of an improvement upon the public lands the vendor was out of possession, and that the land had been previously entered by a third person, the vendee in an action for the price may set up these facts as showing a want of consideration.
    2. Where erroneous instructions are given, the Supreme Court will reverse the judgment of the lower courts without regard to the number of new trials previously awarded. (Harrison v. Cachelin, 23 Mo. 117, affirmed.)

      Appeal from Polls Circuit Court.

    This suit was originally commenced before a justice of the peace, to recover the price of an improvement sold by Burns to Hayden. The case was appealed to the Circuit Court. The court refused the following instruction asked by the defendant: “ If the jury believe from the evidence that the subject matter of this suit was for an improvement which Burns had made upon the public lands, and that after Burns made the improvement said Tipton entered said land with a land warrant, and while Tipton so owned the land Burns sold his claim to the improvement to the defendant and while Burns was out of possession, and there was no other consideration, they will find for the defendant.” Exceptions were duly taken.

      Wright and Otter, for appellant,
    cited 16 Mo. 317; 23 Mo. 70; Dale v. Darnes, 7 Mo. 544; Carson v. Clark, 1 Scam. 113 ; 1 Smith L. C. 169, notes ; 5 Tyrw. Exch. 2; 2 H. Bl. 320 ; Jones v. Shaver, 6 Mo. 642 ; 7 Mass. 22.

      JVhpton, for respondent,
    cited Stubblefield v. Branson, 302.
   Leonard, Judge,

delivered the opinion of the court.

In the western states the possession of an improvement on the public ’ domain may, we suppose, be considered a kind of squatter interest in the land — a subordinate species of property — held at the pleasure of the United States, and, to some extent, as between citizen and citizen, recognized and protected by the law. It is a common subject of traffic among the people, and the sale and delivery of it constitutes a sufficient consideration for a promise to pay the price, which the courts have pretty uniformly enforced. (Clark v. Shutz, 4 Mo. 235; Freeman v. Holliday, 1 Morris., Iowa, 80; Doyle v. Knapp, 3 Scam. 337; Stubblefield v. Branson, 20 Mo. 302.) In the present case, however, there was proof to the effect that the seller was not in the possession of the improvement at the time of the sale, and that the land was then private property, having been previously entered by a third party ; and the court, when asked to do so, refused to instruct the jury that the sale of the improvement, under such circumstances, would not entitle the plaintiff to recover the price. We think the instruction asked was right and ought to have been given. If the facts were as supposed in the instruction, there was no consideration whatever for the promise. The instruction assumed that the land was private property, and that the possession of the improvement was in a third party. If these were the circumstances, the transaction was void for want of something to constitute the object of the sale. Nothing passed between the parties. The seller parted with nothing, neither right nor possession, and the defendant acquired nothing. No detriment resulted to the plaintiff, and the defendant derived no advantage from it. In Stubblefield v. Branson, the plaintiff was in the possession of a field on public land, which he surrendered to the defendant as the consideration of the promise sued upon ; but there was nothing of that kind here, if the .facts stated in the instruction were true.

The record sufficiently shows that the court refused the instruction to which we have referred, and there is nothing in the objection suggested in reference to the second new trial. (Harrison v. Cachelin, 23 Mo. 125.)

Let the judgment be reversed, and the cause remanded.


text:
    Dickey et al., Appellants, v. Fox, Respondent.
    1. Where in an attachment suit against the payee of a note, who had previously assigned the same, the maker thereof was garnished, and judgment obtained against him, and payment enforced: held, that the assignee was not entitled to recover from the plaintiff in the attachment the sum so paid.

      «Appeal from Carroll Circuit Court.

    A. P. Mullins executed a note under seal to Dewey, dated October 1, 1852, for $110, payable October 1, 1854. This note contained the words “ negotiable and payable without defalcation or discount, which said amount may be discharged in good young cattle at market price.” This note was assigned by Dewey to the plaintiffs in the present suit. The date of the assignment is August 18, 1853. Fox, the defendant in the present action, commenced suit September 10, 1853, against Dewey, and summoned Mullins as garnishee. Judgment was obtained in this proceeding and payment enforced. Dickey and Blue, the assignees, on the 20th October, 1855, demanded of Fox the money so received by him, and upon his refusal to pay it, brought the present action.
    A demurrer to a petition setting forth the above facts was sustained; and this is the error complained of.

      Gardenhire, for appellants.
    I. The note, though it might be paid in property, was assignable, and the debt vested in the assignees at law. (R. 0., 1845, p. 190.) A payment to the assignor would have been for their use, and so of payment to his creditor. That the payment was by compulsion of law makes no difference. (18 Mo. 158.) The assignees were not parties to that suit, and are in no1 way affected by it. Res inter alios acta alteri nocere non debet. (Broom, 735.) They have a right to say the judgment was wrong, and, whether obtained by collusion or otherwise, is none of their business. There need be no privity of contract between the parties, in order to support this action, except that which results from one man’s having another’s money, which he has no right conscientiously to keep. (4 Mass. 95 ; 17 Mass. 563; ib. 579 ; 5 Conn. 71 ; 15 ib. 52 ; 4 Dana, 70 ; 12 Ala. 778 ; 10 53.) There is no priority between the finder of money lost and the owner who lost it; between the person who, through fraud or deceit, acquires the money of another, and the person of whom it was acquired; between one who has taken the fees of an officer, claiming a right so to do, and another who has title to them ; yet, in all these cases, the action for money had and received -may be maintained. (5 Conn. 71, 75 ; 9 Johns. 201 ; ib. 370 ; 12 Mo. 83; 18 Mo. 557.)
   LEONARD, Judge,

delivered the opinion of the court.

The principles settled and acted upon in Gates against Kirby, (13 Mo. 158,) and in Howe against Funkhouser, decided at the St. Louis spring term, 1856, (the opinion in which was filed at the succeeding fall term,) are applicable here, and must control the decision in this case.

We are told that the bond was payable “ without discount or defalcation,” and. assigned to the plaintiff before the maker was garnished, and that therefore neither a voluntary payment nor a compulsory payment in a proceeding to which the plaintiff was a stranger could have the effect of divesting him of his debt. If this be so, and we think it is, then, according to Gates v. Kirby, the plaintiff still retains his original right of action against his own debtor. And, according to the case of Howe v. Funkhouser, the mere fact (no fraud or collusion being here suggested) that the present defendant obtained a recovery against the maker of the note as the supposed debtor of the original payee, gives the assignee no right to follow the money thus recovered and wrest it from the attaching creditor upon the ground that it was obtained under the supposition that the attached debt was, at the time of the garnishment, still owing to the original payee. The judgment is affirmed.


author: Leonakd, Judge,

text:
    Baker, Plaintiff in Error, v. Haldeman, Defendant in Error.
    1. A father is not responsible for injuries caused by an assault made by his minor child.

      Error to Dent Circuit Court.

    This was an action to recover damages for an alleged assault upon tbe minor son of plaintiff by tbe minor son of defendant. Tbe petition charges an assault with a knife, and a cutting, maiming and disabling therewith ; and a loss of service and an expenditure of large sums in the cure, &e. The following instruction was given at the instance of defendant: “ Unless the plaintiff has established that the boy was of a vicious disposition and habits, and that the father knew it at the time, he is not responsible in damages for the injury sustained, and the jury will find for the defendant.”
    Ewing, for plaintiff in error,
    cited Dennis v. Clark, 2 Cush. 347; 2 Waif, on Parties, 1068, 1082; Hall v. Hallender, 4 B. & Cr. 660 ; 8 Watts, 232 ; Wilt v. Yickers, 2 Kent Com. 186 ; 1 Blacks. Com. 453.
   Leonakd, Judge,

delivered the opinion of the court.

It seems to have been assumed in the trial of this cause that a father was responsible for the injury caused by the wilful wrong of his minor child; and the question discussed was whether this liability existed in all cases, or was confined to the case where the child was of a vicious disposition and the father was aware of it. The court decided, at the instance of the defendant, that he was liable only in the latter class of cases, and the jury accordingly found for the defendant.

An opinion, we believe, prevails to some extent in the community, that a father must answer for all the civil injuries inflicted by his child, and we may suppose therefore that there is a foundation for this sentiment in the common sense of mankind. And accordingly, it was the doctrine of the early Roman law that if a child or a slave committed an injury, the person injured had a remedy for the wrong done him against the father or master, but he had no action against the son or the slave ; and the father or master might either pay the damages to the injured person or surrender the offender to him. (Smith’s Dictionary of Greek and Ronian Antiquities ; “Noxalis •Actio,” Justinian Inst, by Saunders, lib. 4, tit. 8.) And in the Institutes, it is said to be with great reason that the master is permitted to deliver up the offending slave; for that it would be very unjust, when a slave- does a wrongful act, to make the master liable to lose any thing more than the slave itself ; and that, although the ancients applied the same rule to children, yet the feeling of later times had rightly rejected such extreme rigor, and the surrender of children had passed wholly into disuse. The general principle of the Roman law that every person is responsible not only for injuries caused by Ms own act, but for all that are caused by the act of persons and things under his dominion, is expressly adopted in the civil code of France (art. 1384) ; but the responsibility of a father for the act of his minor child is not incurred there if the father can prove that he was not able to prevent the act which gives rise to the responsibility; and the same principles are adopted and acted upon in the state of Louisiana. (Cleaveland v. Mayo, 19 La. 414; and Governor v. Lambeth, 9 La. 241.) Our unwritten'law, however, imposes no such responsibility upon parent or master, although the statute law has made the master liable for certain specified offences of his slave, not to exceed the slave’s value, the limit prescribed in the ancient Roman law. (Ewing v. Thompson, 13 Mo. 132.) The present plaintiff, therefore, had no cause of action against the defendant, even upon his own statement of his case.

In reference to the instructions, it is sufficient to say that there was no error in point of abstract law in refusing those asked by the plaintiff, and that, although the one given at the instance o£ .the defendant- was erroneous, it was not to the plaintiff’s prejudice, and of course is not a matter for him to complain of. The judgment is affirmed.


text:
    Cavin, Respondent, v. Smith & Kerr, Appellants.
    1. Although declarations of a party in possession of property against his interest are admissible in interest against one claiming under him, they must, to be competent evidence, be made prior to the inception of the successor’s title.

      Appeal from Polk Circuit Court.

    The facts of this ease sufficiently appear in the opinion of the court when compared with the report of the same case when on error before, in 21 Mo, 444.

      JVapton, for appellants.

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

delivered the opinion of the court.

The question upon.this trial was, to whom the mare belonged at the time she was seized by the constable under the execution against Ray to satisfy the judgment against him in favor of the defendant. The plaintiff insisted that she belonged to him, and was in Ray’s possession, if at all, under a contract that the latter should have her upon his completing certain, work that he had undertaken for the plaintiff. When the cause was here before, the judgment was reversed because the court excluded Ray’s declarations, made while he was in possession' of the mare and before the constable’s levy, to the effect that “he was to have the mare on condition that he completed the work he had undertaken for the plaintiff and now it must be reversed because the court has admitted Ray’s declarations to the same effect, made after the constable had taken her in execution. The admissions of a party to a suit, made against his own interest, are o£ course competent evidence against himself, and it has been laid down generally (Cow. & Hill’s notes, p. 644, note 481) that these admissions, coming from one who was the owner of the property at the time, and being exclusively against his own interest when made, are equally admissible against his successors, both immediate and remote, to the same property, and that this rule is applicable to 'every species of property, real and personal, in possession and in action, and to every kind of transfer, whether by act of law or of the parties. This doctrine is put on the ' ground that the present claimant stands in the place of the person from whom his title is derived, and as his predecessor might have taken a qualified right, or sold, charged or modified an absolute right, and might also furnish all the necessary evidence to show its state in his own hands, the law will not allow third persons to be deprived of that evidence by any act of transferring the right to another. We are not called upon to express an opinion as to the correctness of the doctrine to the full extent thus given to it; but iit is sufficient for the present case to remark that, although the declarations of a party while in possession of personal property are admissible against any one subsequently succeeding to his title, yet they are not competent evidence against a successor whose title had its inception before the admissions "were jnade. Ray’s admissions, made while he was in possession .-and .before the levy,.affected himself only; they touched the ■rightsof;BO,iOne else ; and this the law deems a sufficient ‘ guaranty to.- take them out of the rule excluding hearsay evidence. (Rut ¡it was otherwise in reference to what he said after the ¡property hacl.beqn seized in execution, and it'is quite impossi-fble-to tell what .considerations, other than a regard for the rt’esult, ..may have induced him to make admissions, which, rthough nominally against his own interest, were really agaihst •*a creditor who, by a prpviqus levy, had acquired an iiítérfest 'in rthe, property .far gr,eái¡j9r( í>p$ápB than the execution defeiidfeiit felt that,-,he had in it. .The. judgment must therefore be'ré-versed, and the’ caqse remanded,

with the concurrence of Judge Ryland.


text:
    McAdams, Plaintiff in Error, v. Cates, Defendant in Error.

      i. If the vendor of a horse is aware, at the time of the sale, of the existence of a latent defect, unknown to the vendee, of such a character that the vendee would not liave made the sale had he known of it, and such as would have ordinarily escaped the observation of men engaged in buying horses, and he allows the vendee to purchase without disclosing the defect, he is guilty of a fraudulent concealment, and must respond in damages to the vendee.

      Error to Polk Circuit Court.
    The following instruction was given to the jury at the instance of the defendant: u Although the jury shall believe from the evidence that the defendant knew that the filly was unsound from the loss of her teeth, yet unless they shall further find from the evidence that the defendant made some statement or representation as to the soundness of the filly which was not true, or used some artifice to conceal the unsoundness, or to throw the plaintiff off his guard, so that he did not examine said filly before the exchange, and that the plaintiff was thereby deceived, they must find a verdict for defendant. Further, if the jury shall believe from the evidence that the plaintiff, bfefore the exchange, knew that the filly was unsound, they must find for the defendant.”

      F. P. Wright, for plaintiff in error.

      Gardenhire, for defendant in error.
   LEONARD, Judge,

delivered the opinion of the court.

The Circuit Court, considering that the party was not bound to disclose any secret defect in the- filly, directed the jury that he was not responsible, unless he used some, artifice to conceal the fault or throw the plaintiff off his guard, so that he did not examine .her. Chancellor Kent lays down the rule of legal duty in this particular to be, that each party must communicate to the other his knowledge of all material intrinsic defects, provided be knows the other party to be ignorant o£ them, and they are not equally within the reach of his observation. (2 Kent. Com., 8th ed., p. 482.) But Justice Story (1 Eq. Jur., 6th-ed., § 208) thinks the duty of disclosing defects, as a legal obligation, is confined to the cases where the party in possession of the facts is under some special obligation, by confidence reposed or otherwise, to communicate them, so as to authorize the buyer to-.act upon the presumption that there is no concealment of any material circumstance. In Bench v. Sheldon, (14 Barb. S. C. 72,) the rule thus qualified is said to be the true one; and it is there remarked, that, in sales of personal property, the law allows the purchaser to impose confidence in the vendor as to all such defects as are not within the reach of ordinary observation, and imposes upon the latter the corresponding duty of disclosing them. In Roll. Abr. p. 90, it is said that, if a merchant sell cloth knowing it to be badly fulled, an action on the case in the nature of deceit lies against him, because it is a warranty in law. In Southern v. Howe, (2 Roll. R. 5,) it was stated that, if a man sell wine knowing it to be corrupt, an action of deceit lies against him, though there be no warranty; and in Mellish v. Mottcan, (Peake’s cases, 115,) a ship was sold that had a latent defect known to the seller, but which the buyer could not by any attention possibly discover; and it was held that he was bound to disclose it, and his failure to do so was|a breach of honesty and good faith, rendering him liable. It is true, this case was afterwards overruled in Baglehole v. Walters, (3 Camp. 154,) and the latter decision confirmed in Pickering v. Down, (4 Taunt. 779,) but it was upon another point, respecting the effect of a sale with all faults.”

By the civil law, the seller, by the very nature of the contract .of sale, became bound, in an implied warranty, that the thing .sold was exempt from defects, without any reference to his knowledge of them ; but this warranty, though covering all defects, whether known or unknown to the seller, did not extend .to such ■ as were within- the knowledge of the buyer, or within tbe ordinary observation of buyers ; nor to defects which tbe seller expressly excepted from tbe warranty by a clause in tbe contract to that effect. There was, however, this difference between selling with or without knowing of tbe defect, that in tbe former case the party was considered as guilty of a fraud, and subjected not merely to a return of tbe price, as was tbe case when be sold without knowledge of' the defect, but was also liable 'for all tbe damages occasioned thereby to tbe purchaser. And when be was aware of the defect, and expressly stipulated that be did not warrant it, be was still subject to tbe warranty, notwithstanding tbe clause of exemption on account of tbe fraud in not disclosing it. (Pothier on Sales, by Cushing, 126, 131.)

All this, however, is otherwise in a common law sale. Here, there is no implied warranty against defects unless there be fraud by some false representation or undue concealment; and tbe question in tbe present case is, whether there was any undue concealment on tbe part of the defendant ; or, in other words, whether, under the circumstances of the case, it was his duty to disclose the defect of which the plaintiff complains. Although many duties must he left by the law to the honor and conscience of individuals, the public morals require us to lay down and enforce such rules, in relation to the business affairs of men, as will secure fair and honorable dealing, as far as this is practicable consistently with the freedom of individual action and the interests of commerce.- If, in a contract of sale, the vendor knowingly allow the vendee to he deceived as to the thing sold in a material matter, his silence is grossly fraudulent in a moral point of view, and may be safely treated accordingly in the law tribunals of the country. Although he is not required to give the purchaser all the information he possesses himself, he can not be permitted to be silent when his silence operates virtually as a fraud. If he fails to disclose an intrinsic circumstance that is vital to the contract, knowing that the other party is acting upon the presumption that no such fact exists, it would seem to be quite as much a fraud as if he had expressly denied it, or asserted the reverse, or used any artifice to conceal it, or to call off the buyer’s attention from it. Common honesty, in such a case, requires a man to speak out; and accordingly, in Hill v. Gray, (1 Starkie’s Rep. 434,) when the agent of the vendor of a picture, knowing that the vendee labored under a delusion with respect to it which materially influenced his judgment, permitted him to make the purchase without removing that delusion, Lord Kenyon, before whom the case was tried, held it to be such á fraud as vitiated the sale. And we think that, if the ' defect complained of in the present case was unknown to the plaintiff, and of such a character that he would not have made the exchange had he known of it, and was a latent defect such as would have ordinarily escaped the observation of men engaged in buying horses, and the defendant, knowing this, allowed the plaintiff to exchange without eommunieating the defect, he was guilty of a fraudulent concealment, and must answer for it accordingly.

Ordinary fair dealing between man and man requires this of him, and the law ought to exact of men at least common honesty in their dealings with each other. If both parties had been ignorant of the defect, the loss would have fallen upon the plaintiff, and so, too, although the plaintiff did not know of the defect % yet if he could have discovered it by the use of ordinary care and attention, such as men engaged in making such purchases usually bestow, the loss would have been attributed to his own folly. The Circuit Court erred therefore in their rulings as to the law applicable to the ease, and the judgment must therefore be reversed, and the cause remanded, to be re-fried in conformity with the principles- here laid down. Judgment accordingly.