author:
Napton, Judge,
      Scott, Judge.

text:
    Beaupied, Plaintiff in Error, v. Jennings, Defendant in Error.
    1. A. bequeathed a female slave -with other property to his daughter B., and directed that all the property, real and personal, should be placed in the hands of C. for the use and benefit of said B. In a codicil to this will, duly executed, there was the following provision: “ It is further my will that the negro girl Eliza, that I have bequeathed to my daughter B., shall have the privilege to choose some person to buy her in case she [shallj not be satisfied to live with my daughter B.” The said slave communicated to the said C. her unwillingness to live with B. and made choice of a master, and C. sold her to the person thus chosen. Held, that the purchaser acquired a good title.
    2. A privilege, conferred by will upon a slave, of choosing some person to buy her in case she should not be satisfied to live with the person to whom she 'had been bequeathed, is not, it seems, inconsistent with the legal idea of slavery.

      Error to St. Louis Court of Common Pleas.

    This was an action for the possession of a slave called Eliza and her three children. As evidence of title, the plaintiff, Louis Beaupied, adduced in evidence the will of John Howdeshell, deceased, the former owner of said slave Eliza. The will was dated October 27, 1849, and proved January 19, 1853. It contained the following clauses : “ Fourth. I give and bequeath unto my daughter Ann my negro girl named Eliza at the valuation of four hundred and fifty dollars. Ninth. It is my will that all that portion of my estate, both real and personal, which may fall to Arm from my estate, shall be placed in the hands of George Hall for her special use and benefit, who consents at my request to act as guardian for my daughter Ann Howdeshell.” He devised all his property to be divided equally among his children, the specific bequests to be estimated at the valuation stated in the will in determining each child’s portion. The following codicil, dated December 31, 1852, was also introduced in evidence: “ In addition to the foregoing will dated October 27, 1849, I make this codicil to the same; that is to say, it is my will and wish so to change or alter that portion of said will so as to give that portion of my estate which 1 have given or bequeathed unto my daughter Ann, who has since intermarried with Louis Beaupied, shall, in case she shall die before her husband, [sic,] the same to be equally divided between her sisters and brother. It is my further will that the negro girl Eliza, that I have bequeathed to my daughter Ann, shall have the privilege to choose some person to buy her in case she [shall] not be satisfied with my daughter Ann, and the proceeds of the sale of said negro girl Eliza shall go in the hands of George Hall, or his legal representatives, for the benefit of my daughter Ann. It is further my will that my daughter Ann shall receive the interest on her portion of my estate, the same to be paid to her annually by the said George Hall, or his legal representatives. In witness whereof,” &c.
    George Hall, a witness for plaintiff, testified on cross-examination that in a conversation had in the presence of Beau-pied (plaintiff) and of himself, the negro Eliza stated that she would not live with Ann (the plaintiff’s wife), and elected to choose a master; that time was given her for that purpose ; and that afterwards she said she had elected John C. Jennings, the defendant, to buy her. This testimony was admitted against the objection of the plaintiff. It also appeared in evidence that the administrator of Howdeshell delivered the said Eliza to said George Hall as trustee under the will.
    The court, of its own motion, gave the following instruction : “ 1. If the jury believe from the evidence, that the slave Eliza was not satisfied to live with Ann Howdeshell, the wife of the plaintiff, and chose the defendant to be sold to him ; and if George Hall, named in the will of the testator John Howdeshell, sold the said Eliza to the defendant according to her said choice, and also sold her said children, and that the said slaves were sold and delivered to the defendant before the commencement of this suit, then the plaintiff is not entitled to recover, and the jury will find for the defendant.”

      The court refused the following instructions asked by the plaintiff: “ 2. If the jury believe from the evidence that the slave Eliza mentioned in the petition is the same slave bequeathed to Ann, the wife of the plaintiff, by the will of her father John Howdeshell, which was read in evidence; that the plaintiff, at the time this suit was brought, was the husband of the said Ann, and that the defendant, at the time this suit was brought, was in the possession of said slave Eliza, then the plaintiff is entitled to recover as to said slave Eliza and her children born since the death of said testator. 8. If the jury believe from the evidence that the negro boy John Louis, mentioned in the petition, was in possession of the defendant when this suit was brought, is the child of the said slave Eliza, and was boi'n after the death of the testator Howdeshell and before the sale of said slaves to the defendant, that the slave Eliza is the same bequeathed to Ann, the wife of the plaintiff, in the will read in evidence, and that the plaintiff, at the time of bringing this suit, was the husband of the said Ann, then they will find for plaintiff as to said boy John Louis.”
    • The defendant asked and the court refused the following: “ The court instructs the jury that there is no evidence before them showing title or the right of possession in the plaintiff of the slaves in dispute at the commencement of this suit, and they will find for the defendant.”
    The plaintiff took a nonsuit with leave, &c.

      Hayden, Thomas 8f Sharp and Lackland, for plaintiff in error.
    I. The clause relied upon by defendant can not be regarded as an operative part of the will. It is from its nature and the manner of expression a mere wish or desire of the testator. A slave can not be the owner of property. Whatever he acquires a right to belongs to his master. (25 Mo. 44; 21 Ala. 274.) The right to choose a master is property as well as any beneficial right. A slave can not possess it. It is a right in derogation of the rights of the master. A slave can acquire no rights in derogation of the power and authority of the master. The daughter of the testator was intended to bo the real owner of the slave. The interest must have completely vested in her or her trustee for her. Choice implies liberty, freedom of will. How can a chattel possess this ? In a criminal case, of course, for public purposes, the law is different; but in civil cases, admit that a slave possesses freedom of will and power of expressing that freedom in reference to his condition in one particular, and we must admit it in all. We can not say a slave may have so much power, not so much; this right, not that. The distinction must rest on quality, not quantity. If a slave may have choice, and power to exercise it uncontrolled by his master, •in reference to that slave’s condition, he is no longer a slave. He is either a freeman or an anomaly between a freeman and a slave. It is the settled policy of the law; and courts have uniformly refused to allow bequests, no matter how solemnly expressed and clearly proved, by which the liberty of choosing a power to determine some thing in reference to their own condition is bequeathed to slaves. The law recognizes only two conditions, freedom and slavery; no intermediate state; and will not allow a slave to possess a power-inconsistent with his own condition and in derogation of his-master’s authority. (Peggy & Mary v. Legg, 6 Munf. 229 Wynn v. Carroll, 2 Gratt. 227; 9 Gratt. 539 ; Abercrom-bie’s Ex’r v. Abercrombie, 27 Ala. 494; Graves v. Allen, 13 B. Monr. 190 ; Skrine v. Walker, 3 Rich. Eq. 269 ; 5 Maryl. 92.)

      Cline 8f Jamison, for defendant in error.
   Napton, Judge,

delivered the opinion of the court.

The question in this case is not whether the privilege, conferred by Howdeshell’s will upon his slave Eliza, of selecting another mistress in the event of her being dissatisfied with Mrs. Beaupied, could be enforced, but whether, after the trustee to whom the enforcement of this privilege was entrusted has complied with the directions of the will and sold the slave to the person she selected, the legatee can now maintain an action against the purchaser to recover back the slave and her children; and we are of opinion such action can not be maintained. This will is not to be understood as making an absolute bequest of a specific slave to the testator’s daughter. The legal title to the slave is put in a trustee, and that trustee is authorized, and indeed required, in a certain contingency, to sell the slave and hold the proceeds for the benefit of the legatee. ' The trust has been complied with, and as the trustee had, beyond doubt, the power of sale, the purchaser acquired a good title.

There is nothing in the institution of slavery as understood in the slaveholding states inconsistent with the concession of a privilege of this kind to a slave. The practice is very common and commendable, and the courts will respect the humanity and kindness by which such arrangements are dictated, and will assuredly not interfere with them when voluntarily carried out. Slaves are not mere chattels, nor do our laws or usages so regard them; nor, as human beings, are they regarded as incapable of volition or choice; and the writers, if there be any, who have so represented, are treating of it as an abstraction, and probably know nothing about it practically. The relation between master and slave is regulated by a variety of laws, all having in view to enforce their reciprocal rights and duties, obedience and submission oh the one hand, and protection and kindness on the other; and although these rights and duties, to some extent, like those of parent and child, can, from their very nature, be enforced but imperfectly, yet their existence and validity is recognized, and any deviation from them is punished in the same way and to the same extent as a dereliction of other moral obligations.

The instructions given by the court were correct, and the judgment will therefore be affirmed.

The other judges concur.

Scott, Judge.

So far as the opinion in this case sanctions the doctrine that a trustee, if directed by the terms of a trust, may, as against a cestui que trust, apply the trust property in a way contrary to law, I do not concur in it. I am of the opinion the judgment should be affirmed.


source: Caselaw Access Project

author: Napton, Judge, Scott, Judge.

license: Public Domain

text:
    Castello v. St. Louis Circuit Court.
    1. Where an inferior judicial tribunal declines to hear a cause upon what is termed a preliminary objection — as where, in a statutory proceeding instituted to contest the election of a sheriff the court refuses to try the cause upon the merits but dismisses the same and quashes the proceedings on the ground that the contestant had not given the notice required by the statute — a mandamus will lie from the supreme court commanding the inferior court to reinstate the cause upon its docket and proceed to try the same, if such court had misconstrued the law in such preliminary matter. ( Scott, Judge, dissenting.)
    2. In proceedings instituted under the act regulating elections to contest the election of a sheriff, the contestant must, as required by the fifty-fifth section of said act, give notice in writing within twenty days after the votes are officially counted; the essential constituents of the notice in such case are set forth in the fiftieth section of said act; only one notice is contemplated or required.
    3. Should the contestant not give the required notice, the court should quash the proceedings.

      Application for Mandamus.

    This was an application to the supreme court for a mandamus directed to the St. Louis circuit court. The following is the petition for the mandamus :
    “ To the honorable the judges of the supreme court of Missouri — October term, 1858 — the petition of James Cas-tello is respectfully submitted. Your petitioner states that at the late general election in and for St. Louis county, Missouri, held on the first Monday in August, 1858, being the second day of said month, he was duly and legally elected and chosen sheriff of the said county of St. Louis according, to the statute in such case made and provided ; that at the time when your petitioner was so elected to said office of sheriff, he was and still is qualified to fill the same, and was and still is competent and eligible thereto by law. Your petitioner avers that at the said election he received a larger number of the legal votes cast than any other candidate for the said office of sheriff. That notwithstanding what is above stated, one Michael S. Cerre, who was a candidate for the same office at said election, and who in fact and truth received a less number of the legal votes cast thereat than your petitioner, obtained a certificate of his election to said office under the twenty-first section of the act to regulate elections, approved December 8,1855, (R. C. 1855, p. 698,) as having received the highest number of votes cast at said election. And your petitioner avers that on the 11th day of August, 1858, the said Michael S. Cerre gave bond and qualified as sheriff of said county, and has been ever since exercising the duties thereof by virtue of his said pretended election. That the votes cast at said election were officially counted on the 7th day of August, 1858. That afterwards your petitioner took the following steps to contest the election of said Michael S. Cerre to said office and to establish his (petitioner’s) own right thereto ; that is to say, on the 17th day of August, 1858, your petitioner caused to be served upon said Cerre a notice, of which the following is a copy: 4 To Michael S. Cerre, Esq.: Sir — You are hereby notified that I claim that at the late election for sheriff of St. Louis county, Missouri, held on the 2d day of August, 1858, being the first Monday of said month, in the city and county of St. Louis, I was duly and legally chosen sheriff of said county of St. Louis, and that I shall contest your right to hold said office, I being in fact entitled to the same according to the statute in such case made and provided. St. Louis, August 17, 1858. James Castello.’ The said notice was given in accordance with the provisions of section fifty-five of the aforesaid act to regulate elections, (R. C. 1855, p. 706,) and after being served was filed in the office of the clerk of the circuit court of St. Louis county on said 17th day of August, 1858. That on the 18th day of September, 1858, your petitioner caused to be served on said Michael S. Cerre another notice in writing in accordance with the provisions of section fifty of said act to regulate elections, (R. C. 1855, p. 705,) fully specifying the grounds on which he intended to rely in contesting the election of said Cerre to said office, also stating therein sundry objections to voters at said election, who had voted at said election for said Cerre, and giving therein the names of said voters to about the number of nine hundred. This last mentioned notice was served on said Cerre fifteen days before the regular October term of said circuit court of St. Louis county, which was begun and held on the 4th day of October, 1858, and was filed in the office of the clerk of the said circuit court on the 18th day of September, 1858. Said last mentioned notice is fully and truly copied in the transcript hereto annexed, beginning on page two and ending on page twenty-seven thereof. And your petitioner avers that afterwards and in accordance with the provisions of section fifty-eight of said act to regulate elections, (R. C. 1855, p. 706,) said Cerre caused to be served upon your petitioner six days before said October term of said circuit court, beginning as aforesaid, a notice in writing, denying all the allegations in your petitioner’s said notice of September 18th, and requiring proof thereof, and also setting forth much specific matter of objection against your petitioner’s right to said office, and specifying the names of four or five thousand persons who, he therein alleged, illegally voted for your petitioner at said election, with specific objections to the qualifications of said persons to vote at said election. Said last mentioned notice is fully and truly copied in the transcript hereto annexed, commencing on page thirty-one and ending on page one hundred and thirty-one thereof, and was filed in the office of said clerk on the 6th of October, 1858. That afterwards, on the 11th day of October, 1858, that being the 8th day of the October term of said court in said year, said circuit court, on the motion of said Cerre, refused to comply with the directions contained in section sixty of said act to regulate elections and try said cause on the merits, and quashed and annulled all the proceedings therein on the part of your petitioner to contest said election of said Cerre to said office, and struck your petitioner’s .said cause from the docket for the reason that your petitioner’s said notice of September 18, 1858, specifying the grounds on which he intended to rely in his contest and giving his objections to qualifications of voters for said Cerre, with the names of said voters, had not been served on said Cerre within twenty days after the votes of said election had been officially counted. The court held that, for the reason aforesaid, there was no jurisdiction, power or authority in the said circuit court to try the said cause. And it was for no other cause or reason that the said circuit court quashed your petitioner’s said proceedings and refused to try said contest, and struck the cause from the docket of said court. Now inasmuch as the cause of your petitioner is one of great public concern and he is advised that there is no remedy by which the wrongs above complained of may be redressed save by the process of mandamus, he prays this court to exercise the superintending control, which it possesses, of the said circuit court, in his behalf, by awarding against the said circuit court a writ of mandamus procedendo, commanding and requiring the said circuit court of St. Louis county, without further delay, to reinstate, take cognizance of, and try upon its merits, the cause of your petitioner against the said Michael S. Cerre, or to return into this supreme court sufficient reasons and causes why the same should not be done ; and your petitioner prays for such other process, orders and remedies as may rightfully appertain to his case; and, as in duty bound, your petitioner will ever pray,” &c.
    This petition was duly verified by the oath of the petitioner James Castello.
    The supreme court having announced its determination to award an alternative mandamus, the issuing of the writ was waived by the parties, and it was agreed that the judge of the circuit court should put in an answer to the above petition as to an alternative mandamus, setting forth the points ruled by him and his reasons for refusing to enter upon the adjudication of the cause of Castello v. Cerre. This agreement and understanding was communicated to Judge Lack-land, of the circuit court, in the form of a note addressed to him by the counsel of both Mr. Castello and Mr. Cerre. The following is the response of Judge Lackland :
    “ Messrs. Glover, Thomas and Hill.
    “ Gentlemen — I received your note of 30th ult. and cheerfully comply with your request, and submit the points and propositions raised and discussed in the matter of the contested election of the sheriff of St. Louis county, and the decision of the court thereupon and the reasons given therefor, as well as I can now recollect them.
    “ On the 4th of October, 1858, as appears by the record, . Castello, by his counsel, submitted to the court a motion for the appointment of three discreet persons to count the ballots cast for Cerre and himself respectively for the office of sheriff at the last August election, and, before any action was taken upon this motion, the counsel of Cerre interposed a motion to quash and dismiss the proceedings upon the ground that there had been no sufficient notice served upon Cerre as required by the act concerning elections. The court decided that the motion to quash would be considered first in order. It appeared that Castello had served two notices upon Cerre, one a general notice served on the 17th of August, 1858, and the other a special notice, served on the 18th of September, 1858. The former notice appeared to have been served by Thomas Chadbourne, by delivering a copy thereof to Cerre on the 17th of August, 1858; and the second notice appeared to have been served as follows: Thomas Talis had made three copies thereof and delivered one to Samuel Simmons, another to Stephen Rice, and a third to Edward J. Castello. Samuel Simmons, on the 18th of September, 1858, delivered his copy to Thomas C. Reynolds, Esq., attorney for Cerre. Stephen Rice delivered his copy to Thomas M. Barron, the deputy and clerk of Cerre, on the. date last above mentioned. Edward J. Castello delivered his copy on said day to a white person over the age of fifteen years at the farm of Cerre, in the county of St. Louis, state of Missouri.
    ■ “ The objections to these notices were various. The notice served on the 17th of August, 1858, was objected to upon the grounds that it was too general; that it stated nothing more than that Castello had been elected sheriff and that Cerre had not; that it did not specify any grounds on which Castello intended to rely; nor did it state any objections made to qualifications of any voters ; nor did it give any of the names of any voters objected to as required by section fifty of the act to establish and regulate elections. As to the second or special notice, it was objected that the service thereof was illegal; that the common law mode of serving a notice was by personal service, that is, either by reading the notice or delivering a copy thereof to the person to be notified ; and that the common law mode of service in this matter was a ‘ provision by law’ within the intent and meaning of section twenty-two of the fifth article of the practice act, and that the said twenty-second section and following sections did not apply, and therefore there was no legal service of said special notice. The court decided that the provisions in section twenty-two of the above mentioned article were applicable ; that if such a construction be given to said sec-, tion twenty-two, there would be no grounds for that and the other sections in relation to the service of notices upon which to stand ; and that the true construction of the twenty-second section is, that all notices may be served in the manner provided in the section immediately following the twenty-second, unless otherwise provided by statute law ; that the services of the notice made by Samuel Simmons and Stephen Rice were good prima facie, and the service made by Edward J. Castello was bad, because it did not state that the copy was delivered at the usual place of abode of Cerre.

      “ It was intended on the part of Castello that Cerre had by his appearance waived all right to question the legal sufficiency of the notices, as well as the service thereof; that as evidence of such waiver he had given Castello a counter notice of contest six days before the term of the court; and that he had appeared there in court by filing his motion to quash. The court was of the opinion that these facts did not amount to a waiver ; that a party might very well be considered in court for the purpose of quashing a writ or the service thereof and not for any other purpose; that Cerré was compelled to give his counter notice six days before the term of the court or forfeit his right to contest on his part; and that the mere doing of that which he was compelled to do or endanger his right, ought not to be construed into a waiver; that it seems to be the object of the statute to give the notice a double operation, that is, to bring the party into court and to set forth and advise the court of the grounds of contest; that the notice required by the statute seemed designed to stand in lieu of and perform the functions of a writ and petition in an ordinary suit; and it would seem to be just as unreasonable to say that the contestee could not appear in court and object to the notice upon the ground that it is insufficient in law, as to say that a defendant could not appear in court and demur to a petition in an ordinary suit.’
    “ The right of a party to contest an election is a creature of the statute, and unless he have saved that right by giving notice as required by the statute, it must be conceded it has become forfeited, and he will not be allowed to assert it over the objections of the party whose election he seeks to contest. And thus arose the question whether Cerre had been notified by Castello as required by the act concerning elections. The notice served on the 17th of August is insufficient because it is too general, and because it failed to specify any grounds upon which the contestant intended to rely; nor did it specify any objection to the qualification of any voters, nor did it give their names as required by the fiftieth section. And as to the special notice which was served on the 18th of September, it was objected that that was not served within twenty days after the official count of the votes as required by the fifty-fifth section.
    “ If it be true that a correct reading of the statute requires two notices to be given by the contestant to the contestee — one to be a general notice under the fifty-fifth section, which is to be served within twenty days after the official count of the votes, without regard to the space of time between the election and the term of the court at which the contest is triable ; and the other, a special notice under section fifty, specifying the grounds of the contest, which is to be served fifteen days before the term of the court at which the contest is triable, and without regard to the space of time between the election or the official count and the term at which the contest is triable, then there was error in sustaining the motion to quash and in dismissing the proceedings. But if the statute requires one notice only, which must set out the grounds upon which the contestant intends to rely and which must be served within twenty days after the official count and fifteen days before the term of the court at which the contest is triable, it is submitted that the action of the court in sustaining the notice to quash was correct, because no such notice appeared to have been given; and this was the result at which the court arrived upon the reading of the statute adopted by it. In the vindication of which the following remarks are respectfully submitted.
    “ And first, it may be proper for me to say that two notices for one and the same purpose might properly be regarded as a work of supererogation if not an anomaly in the law, and that the statute ought not to be read consistently with any such idea unless two notices are provided for expressly or by irresistible implication. I am aware that an argument is made in favor of two notices, based upon notions of equity towards the contestee ; that the first or general notice is simply to inform him his election will be contested, which is to be served upon him within twenty days after the official count; and after that and fifteen days before the term of the court at which the matter, is triable, he is to receive the special notice informing him of the specific grounds. In answer to this argument, it may be said that in the working of the statute it is by no means certain that the general notice will be received before the special one, as I shall hereafter endeavor to demonstrate ; but suppose that would be so invariably, it seems clear to me that such a mode of proceeding would be greatly to the disadvantage of the contestee. Suppose, if you please, that the contest be instituted in a county in which the first term of the court is six months after the election. The contestee receives the general notice within twenty days after the count, which really imparts no useful information to the contestee, because it specifies nothing. He may know that an attempt will be made to strike him ; but with what or when the blow is intended to be planted he has no reliable information until within fifteen days of the time when the cause may be called for trial; and the contes-tee is compelled to give his counter-notice six days before the term of the court. The result of which is that the contestant has five and a half months to fix up the pleadings and arrange the facts of his case under the blind of a general notice before he is compelled really to show his hand, while the contestee has only nine days to prepare what case he may have to present against the contestant. It would indeed seem to me that such a construction would not work very equitably towards the contestee. Again, if the above constructions requiring two notices be equitable towards the contestee, and that is the idea which is to govern us in reading the statute, it is contended there is a stronger claim upon that ground for the construction requiring one notice only. If a notice be given specifying the grounds set forth in section fifty and served within twenty days after the count and fifteen days before the term of the court, he has all the information the two notices can give, and it may be at a much earlier stage of the proceedings.
    “ Secondly. Does the section fifty-five in itself considered provide expressly or impliedly that the contestant shall serve a notice upon the contestee independent of the notice provided for by the section fifty ; or. does tbs fifty-fifth section merely operate as a limitation of the notice provided by the fiftieth section ? If the fifty-fifth section be regarded merely in the light of a limitation or as an additional regulation of the notice provided for by the fiftieth section, no difficulty of importance is perceived in the reading the statute, so far as this question is concerned, so as to give entire unanimity and harmony to the various sections bearing upon the subject. It will be admitted that the proper rule in construing a statute is to take the sections or parts of it bearing upon the same subject matter and read them all together; and if any portion of the statute, by reason of its phraseology, is capable of bearing two constructions, one of which will cause the various parts to harmonize and have a practical operation, and the other will cause a conflict on the working of the various provisions, and result in impracticabilities, we are compelled to adopt as the legislative will that construction which will give harmony and effect to the statute in all its parts. Let us suppose, for the sake of argument, that the fifty-fifth section provides affirmatively for a notice distinct from and independent of that provided for by the fiftieth section, and see what would be the inevitable result of such a construction. If the fifty-fifth section provides affirmatively for a separate notice, the contestant, as a matter of absolute right, has twenty days after the official count of th,e votes in which to serve it, and this right can in nowise be affected by the date of the election or the time of the term of the court at which the contest may be called for trial. Now it will be seen that the fifty-first section requires the contest to be tried by the court at the first term held twenty days after the election; and if the election of any county officer other than sheriff or coroner be contested, by the sixtieth section, it shall be tried at the first term held fifteen days after the election, unless continued for cause or by consent. Let me ask, how can it be that the contestant has an absolute right twenty days after the official count, (which must be some day or two after the election,) to serve the general notice under the fifty-fifth section, when he may be forced into a trial of contest before the court under the fifty-first section or sixtieth in fifteen or twenty days after the election ? It seems clear that the contestant can not in the nature of things be entitled as a matter of right to have twenty days after the count to serve his general notice, when he may be forced into trial in fifteen or twenty days after the election, and that such a construction must necessarily bring the fifty-fifth section in conflict with sections fifty-one and sixty, which regulate the time of trying the contest.
    “ There is another test to which I wish to subject this argument, which contends that two notices are required. The statute under which this proceeding is had is general; its operation is co-extensive with the limits, of the state; and, in our endeavors to read it so as to carry out the will of the legislature, it is deemed proper and fair to consider its operation beyond the limits of St. Louis county. There are in this state some eight or ten counties in which the fall term of the circuit court commences on the first Monday in September. In order that we may apply this test, let us suppose that the matter of this contested election had arisen in any one of those counties. The election was held on the 2d day of August, and the official count was made on the 7th of the same month. The first Monday in September came on the 6th day of that month. Now agreeably to the argument, the contestant has until the 27th of August to serve his general notice under the fifty-fifth section. By the fiftieth. section he is compelled to serve his special notice fifteen days befere the 6th of September, which would require it to be served on the 21st of August, and thus it is shown that the special notice under section fifty would be served six days before the general one under section fifty-five. There are a number of other cases which might be presented if deemed necessary, which show the same result of such a construction of the statute.
    “ Third. Having attempted to show that the fifty-fifth section does not provide for an independent and separate notice, because the statute in all its provisions bearing upon the same subject matter can not be read consistently with such a construction, let us now endeavor to examine the phraseology of the fifty-fifth section in order to gather what light we can tending to show the will of the legislature in framing it. It is in these words : ‘ No election of any county officer shall be contested' unless legal notice of such contest be given in writing to the opposite party within twenty days after the votes are officially counted.’ It will be observed that this section affirms nothing. It is simply a conditional negative. Unless legal notice of such contest in writing be given within twenty days after the count the contest is prohibited. What are we to understand to be the meaning of the words ( legal notice of such contest ?’ What is a legal notice of a contested election ? What must be the form and contents of a document to make it come up to the standard of a legal notice ? I might, perhaps, more properly ask, where can the standard of a legal notice of a contested election be found ? I am not aware that there is any such thing as a legal notice of a contested election at common law, and therefore we can get'no aid in our inquiry from that quarter. And it is respectfully submitted that the proposition is beyond solution, unless we conclude that the legal notice of contest mentioned in the fifty-fifth section refers to the notices provided for by sections fifty and fifty-seven, and in this view the solution is easy. If the legislature intended by the fifty-fifth section to-make it incumbent upon the contestant to give the contestee a common notice which would simply inform him that his election would be contested, why did they employ the technical and guarded language of “ legal notice in writing of such contest ?” It seems to me that, as the legislature have given .us in sections fifty and fifty-seven the requisites and the standard of a legal notice of a contested election, by the use of the language employed in the fifty-fifth section they simply mean the statutory notices provided for in sections fifty and fifty-seven.
    “ In pursuance of the views which are herein endeavored to be expressed, the court came to the conclusion, 1st, that the general notice served on the 17th of August was insufficient in law, because it specifies no grounds upon which the contestant intends to rely as required by the fiftieth section of the act concerning elections; 2d, that the notice served on the 18th of September was insufficient in law because it was not served within twenty days after the official count as required by the fifty-fifth section ; 3d, that the legal effect of both papers, with the service thereof, as appeared to the court, was insufficient to constitute legal notice to the con-testee as required by said act; 4th, that the fifty-fifth section absolutely prohibits the court from trying 'the contest upon its merits, because legal notice of such contest did not appear to have been given.
    “ Respectfully, &c.,
    “J. R. LACKLAND.”
    & T. Sf A. D. Glover and Leonard, for Castello.
    I. The mandamus should issue and be made peremptory. The proceeding to contest the election of a sheriff under our statute is a proceeding not according to the course of the common law. No appeal or writ of error lies upon the record in such case. Unless therefore the case is one which the supreme court will revise through certiorari or mandamus, there is no remedy for any wrong that may be committed by 'a circuit judge in such cases. If in any case not proceeding according to the course of the common law, the statute law is departed from and a judgment erroneously rendered against a party, whose rights can only be restored by annulling that judgment, since no other remedy exists, the wronged party may have a certiorari and thereby quash and annul the whole proceeding. (2 Mass. 441; 5 Mass. 517; 2 Greenl. 165 ; 8 id. 163 ; 1 Yerg. 92 ; 3 Johns. 23 ; Walker, 112 ; 16 Johns. 49 ; 2 Caines, 179 ; 2 S. & R. 363 ; 4 Watts, 305 ; 4 Rawle, 366 ; 2 Williams, 592.) If in such a case the party’s rights can only be secured by requiring the judge to go forward and execute in his behalf some provision of the statute which he has refused to execute, the remedy is mandamus procedendo. If the justices of quarter sessions refuse to entertain a complaint under an erroneous supposition that they have no jurisdiction of it, or if the hearing be illusory, mandamus lies to command them to do their duty in order to prevent a defect of justice. (Tapping on Mandamus, 279, 280.) Where the quarter sessions, on appeal, decide a point preliminary to the case and refuse to hear it further, no mandamus lies, if the preliminary point is matter of fact only; but if the point involved is one of practice or matter of law, then a- mandamus to hear lies. (Tapping, 280-1-3; see also 3 Ad. & El. 744, 985; 5 Barn. & Ad. 597 ; 2 Williams, 592; 5 Pike, 50 ; 4 Eng. 240 ; 7. Eng. Law & Eq. R. 390 ; 7 Crancli, 577 ; 1 Eng. L. & Eq. 291; 17 Ill. 128; 14 Ill. 153; 29 Ala. 72; 10 Wend. 293; 4 Wend. 212 ; 12 Wend. 246 ; 8 Cow. 133 ; Hardin, 173 ; 20 Ala. 334 ; 5 Engl. 246 ; 6 Florida, 279 ; 7 Ala. 460.) The judge of the circuit court had no discretion. His duty of trying the cause, of docketing it and proceeding with trial, was ministerial simply. But mandamus lies to compel performance of judicial as well as ministerial duties. If the duty be judicial, the mandate will be to compel the exercise of the official discretion or judgment without directing the manner of proceeding. (21 Pick. 258.) In the case at bar there has been no use of the judicial discretion. (See 5 Pick. 50.) The result of the cases may then be stated to be, that where an officer or court is requested to perform an act, either administrative or judicial, and they decline acting for some supposed defect in a preliminary matter necessary to give them the power of acting in the premises, this court, in the exercise of its superintending control over all inferior officers and jurisdictions, must of necessity look into such matter and award or refuse a mandamus according to the rights of the parties; otherwise, in all such cases, there would be a defect of justice; and the two cases cited (2 Williams, 592, and 3 Q. B. 744,) seem to proceed on this principle. If a court or officer proceeds to discharge the duty imposed on tbem, and commit any error or irregularity in discharging the duty, the effect of the error or irregularity upon the rights of the parties may be corrected by writ of error or of certiorari, as the one or the other shall be otherwise applicable, unless the judgment of the court or officer is made final in the matter. But if they refuse to act at all, will not enter upon the discharge of the duty, although for some supposed defect in a necessary preliminary proceeding, this court will compel them by mandamus to act, and restrain them by prohibition when they exceed their authority. In this way the whole ground seems to be covered, and the • due administration of the law enforced, and the rights of all persons protected by this court.
    II. When the court quáshed the proceeding for want of proper notice, all questions of notice and service had been waived by steps taken in the cause on the merits. Cerre had served his counter notice. The parties were fully at issue on the merits. Castello had prepared his case on the merits. Cerre’s notice left him no discretion. Is it proper in such case to treat the question of notice as open ? (See 2 Engl. 552; 6 How. 605; 1 Morr. 21,-228, 113; 10 S. & M. 563; 2 Scam. 462, 263 ; 17 Verm. 531; 8 Shepley, 467.)
    III. Mr. Castello fully complied with the law in giving notice. The notices given were sufficient.

      Hill and P. F. Thomas, for Cerre.
    I. A mandamus will not lie in the present case. (See 2 T. R. 259, 484; Cole on Crim. Inf. 137, 147; Burr. 1454; 4 T. R. 699; 6 Ad. & El. 349; 1 N. & P. 474; 7 Ad. & El. 215, 419, 966 ; 11 Ad. & El. 512 ; 10 Pick. 244; 11 Pick. 189 ; 18 Pick. 443 ; 19 Pick. 298 ; 2 Pet. 567 ; 6 Pet. 216, 661; 7 Pet. 637 ; 2 Ired. 423 ; 3 Dali. 42 ; 2 Bibb, 573 ; 8 B. Monr. 651; 2 Ired. 430 ; 1 Pike, 11; 1 Ala. 15 ; 6 Ala. 511; 18 Wen. 79; 8 Pet. 291; 1 Den. 644, 679 ; 20 Wend. 663 ; 2 Hill, 363 ; 21 Wend. 20 ; 3 Johns, cas. 79; 5 Hill, 616; 1 Cow. 417 ; 1 Pet. 567 ; 13 Pet. 279 ; 7 Pot. 634; 1 Green. 97; 1 Halst. 157; 20 Barb. 302; 12 Gratt. 266; 26 Ala. 133 ; 4 Texas, 329; 9 Texas, 250; 3 Mich. 437; 10 Gratt. 650; 25 Ala. 72; 14 Ark. 368; 21 Ala. 772; 1 Ohio, State, 30; 14 How. 24; 6 Texas, 457; Beawe’s, Abr. tit. Mandamus ; 5 Barn. & Ad. 1011; 1 Eng. Law & Eq. 291; 4 B. & Aid. 300; 3 Dali. 42; 17 How. 284; 14 Pet. 497 ; 6 How. 92 ; 3 Pike, 427 ; 3 Binn. 273 ; 5 Halst. 57 ; 2 Harr., N. J., 355; 2 Cow. 458, 479; 7 Cow. 363.)
   Napton, Judge,

delivered the opinion of the court.

Upon the facts disclosed in the petition in this case for a mandamus upon the circuit court, a majority of this court determined that a conditional mandamus should be awarded, and it was accordingly so ordered. This determination was based upon the principle that where an inferior judicial tribunal declines to hear a case upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law. The cases of the King v. The Justices of the First Riding of Yorkshire, 5 Barn. & Adol. 667, and Rex v. The Justices of Middlesex, 5 B. & Ad. 1113, The King v. Hewer, 3 Ad. & Ellis, 715, and Regina v. The Recorder of Liverpool, 1 Eng. Law & Eq. R. 291, are believed to be conclusive upon this point so far as the English authorities go ; and our attention has not been directed to any American cases conflicting with this view of the law. If the circuit court declined to go into the merits of the case because the party complaining had not given the notice required by. the statute, that was a preliminary objection upon a point of law which this court can review upon u writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.

It is not deemed important to go into any extended examination of this question, since upon the return to the conditional mandamus by the circuit court, we were satisfied that the construction which that court gave to the statute was correct. The fifty-fifth section of the election law (B. C. 1855, p. 706) provides that a. legal notice in every contested election of a county officer must be given within twenty days after the official count. This is the longest period allowed for such notices. It may be requisite to give them before the lapse of twenty days, but they can not be deferred beyond that period in any case. The essential constituents of the notice in the case of sheriffs are stated in the fiftieth section. The notice in this case was not given within twenty days after the official count, and we are therefore of opinion that the peremptory mandamus be refused.

Scott, Judge.

At the last August election Michael Cerre and James Castello were candidates for the office of sheriff in St. Louis county. Cerre, according to the count, having received the greater number of votes, was declared to be elected. A certificate of election was delivered to him and he qualified according to law. Castello contested the election of Cerre and gave him what he supposed to be the notice required by the statute. The cause coming on to be heard in the circuit court, the notice of the contest was produced in evidence, and, Cerre objecting to its sufficiency, the court ruled it out, and, being of the opinion that the notice required by the statute had not been given, dismissed all further proceedings in the cause. Upon this state of facts, Castello, assuming that no appeal or writ of error would lie, applied to this court for a mandanlus to compel the circuit court to proceed with the hearing of the cause. This application raises the sole question whether, according to the principles of law, a mandamus is the appropriate remedy to attain the end sought by Castello.

At this stage of the pleading we have nothing to do with the correctness of the decision of the circuit court. We do not say whether it was correct or incorrect. It will not be denied but that Castello, in his' contest, in order to succeed, must show two things at least; first, that he gave the notice required by law; secondly, that he received the greater number of legal votes. It will not do to prove one of these requirements. He must prove both. The proof of one without the other is as fatal in law as if neither had been proved. This, it is presumed, will not be controverted. If then the circuit court proceeded so far in the hearing of the cause as to determine that the legal notice had not been given, was not the controversy then terminated, and terminated, too, on its legal merits ? Cerre had the office. It was competent to the general assembly to make his certificate of election final and conclusive as to his right to the place. This however has not been done. The law has given a right to his unsuccessful opponent to contest his election. This has not been granted absolutely, but on a condition. That condition is that he shall give the notice of his intention to contest required by the statute. Now if he omits to do this, he must fail in his contest. The circuit court has heard the cause and has determined that the required notice had not been given, and, being of that opinion, very properly dismissed all further proceedings ; for, as the contestant had not given the necessary notice, if the court, after having heard the objections to the notice, had gone on with the trial, and after receiving the whole evidence, had been of the opinion that Castello had received the greater number of legal votes, yet if it had been of the opinion that he had neglected to give the -requisite notice, it would have been bound to have given judgment against him. Where, then, is the use in commanding the court to proceed with the trial of the cause ? What will it profit the contestant ? After expending weeks, perhaps months (judging from the record), in trying it, must not the same judgment necessarily be entered that has been already given in the cause ? Was it ever heard that after a cause had been tried on its merits in the proper tribunal, that a mandamus would lie to correct the errors of the judgment ? Authorities will not be cited on this point. The learning on this subject is too trite to be paraded in citations. Is there a lawyer in this state who, on a point like this being decided against his client, would not take a bill of exceptions to the opinion of the court and bring the case here by appeal or writ of error ? But it is said that no appeal or writ of error will lie in this proceeding. Why not ? If the law is so, is it because the statute did not intend that, in cases of contested elections tried by the circuit courts, there should be a review of their judgments, that they should be final ? If the statute did contemplate that such proceedings should not be reviewed on appeal or writ of error, that the judgment of the circuit court should be final, did it ever intend that the same thing should be done by a mandamus, thus prostituting that process to a purpose to which it was never before applied ? Would not an appeal or writ of error be the most easy, the least expensive, and the most appropriate means for effecting a review; and can we suppose that the legislature would discard them and sanction a mode of correcting the errors of judgment of an inferior tribunal that had never before been applied to such a purpose ? But see how a mandamus works as a process for reviewing the judgment of the circuit court. If a review is open to one party, it ought also be to the other. Now if the court had overruled the objections of Cerre to the sufficiency of the notice, and had gone on with the cause, will any body pretend that Cerre could have come here for a mandamus on the circuit court; would not such an application have been laughed out of the coui’t room? What sort of a process is this, then, which would be substituted for an appeal or writ of error — a one-sided process, free to one party to a cause and not to the other ?

It may be said that the circuit court, in trying a contested election, not ■ proceeding according to the course of the common law, is the reason that an appeal or writ of-error will not lie upon its judgments in such cases. If such be the case, would therefore the nature of a writ of mandamus be changed ? Could it therefore be made to answer a purpose to which it is not adapted and for which it was never intended ? The judgment in this case is a final one in whatever way it may have been entered in the court below ; and its errors, if any there be, can not be remedied by a mandamus, for it is admitted on all sides that a mandamus can not correct the judgment of an inferior court even though it be erroneotis. It is most manifest that this court can not grant the writ asked for, or at least no end whatever can be' obtained by-granting it, unless it is prepared to hold that Castello can .oust the present incumbent without giving any notice of his intention to contest his election; for if the notice be necessary, then its existence is of the legal merits of this controversy ; and the court below having decided that it is insufficient, there is an end of this contest, at least so far as it can be affected by the process of mandamus — a process that can require an inferior tribunal to proceed with a cause and enter a judgment on it, but can never interfere with the judgment after it has been entered.

Recent English authorities on the subject of writs of mandamus have been cited, and it is maintained that they furnish grounds for the opinion that the writ of mandamus is the appropriate remedy under the circumstances of the case before us. In Tapping on Mandamus, (p. 280,) it is said, where the quarter sessions on appeal decide on a point preliminary to the whole case, or to the reception of a particular piece of evidence, that they will not hear the cause further, their decision is conclusive if the point involve matter of fact only, but otherwise if it raise a mere point of practice, which the court of king’s bench can perceive to be a a point of law; in the latter case a mandamus to hear, &c., will be granted; in the former, not.‘ On the same page it is said that the ordinary practice of the court of king’s bench is to grant the writ of mandamus to command magistrates' or the quarter sessions to hear and determine or give judg-' ment in cases within their jurisdiction, where they have refused altogether to exercise it; but no- instance can be cited in which the court of king's bench has granted a mandamus to compel them to do a specific act, as to come to any particular decision, for, after they have once decided an appeal, Sfc., even erroneously, or under a mistake of law, such decision is final and conclusive. It may be that we do not comprehend what is understood by tlie terms “ point preliminary” in the above citation. In looking over the cases, it will be seen that the English judges themselves complain that they have been misunderstod. It should be no surprise then that they should mislead those who are so remote from the tribunals in which they are employed. But there is one case among the recent English' decisions which serves to show, negatively at least, what is not meant by it, and it is a case which decides a point identical with that involved in the application before us. It is the case of Rex v. The West Riding of Yorkshire Justices, 5 Barn. & Adol. 667. There is another case of the same title, in the same book, at page 1008 ; but the case to which reference is made is at page 667. There a statute required that ten days’ notice of an appeal should be given. After the appeal had been taken, it was, in the language of the English books, respited to one place and then to another. The cause coming on to be heard, it was objected that no notice of the respited appeal had been given, and the court being of the opinion that such a notice was necessary, refused to hear the cause. A mandamus was applied for to the king’s bench, and the court was of the opinion it should be granted. The judges said that the notice of the respited appeal was not required by any rule of law or practice of the court, and that the justices had no authority to exact it from the appellant. But they said that if the inferior court had decided on the original notice of appeal — a notice required by statute — they would not have interfered nor granted a mandamus. Reference is made to the opinions of the judges, not to the syllabus of the case. That case is on all fours with this. There the court held that if a statutory notice was adjudged insufficient by the inferior tribunal, they would not control' its judgment by a mandamus. So in the case before us, the inferior court has declared that a notice required by statute is not sufficient; then, if the English authority is to have any weight, we can not issue the writ of mandamus. This case is valuable to show what idea is conveyed by the terms “ point preliminary.” It shows that where a statute requires a notice and that notice is adjudged insufficient by the inferior tribunal, its judgment will not be controlled by mandamus. It is not deemed necessary to review the other authorities cited, as none of them are found to overrule or explain away the case to which reference has been made.

It is not intended that any thing contained in this opinion should be regarded as an expression of our views on the question whether a writ of error or appeal will lie in this case. It is not true that a writ of mandamus will lie in all cases where there is no other remedy. Before a party 'is entitled to a mandamus or any other writ, he must have a right. Whether the contestant has any right to a review of the judgment of the circuit court may be a question and is to be shown, and if such right is shown, the writ of mandamus can not be made to assume the office of a writ of error or appeal. If the law contemplated that the action of the circuit court in determining contested elections .should be reviewed, then there can be no reason whatever, in law for not resorting to those means by which the errors of judgment in that court are corrected in all other cases.

In my opinion, the mandamus ought to be refused.


author: Napton, Judge,

text:
    Grant, Respondent, v. Steamboat Maria Denning, Appellant.
    1. A. was employed as a fireman on a steamboat for a trip from St- Louis to New Orleans and back at certain agreed wages per month; after the steamboat had proceeded a short way on her trip to New Orleans, A. was discharged and put ashore without cause ; the trip lasted twenty-seven days, during which A. obtained employment elsewhere for about eight or nine days. Held, that A.’s claim to relief might be enforced by suit against the boat to recover wages for the trip; that this claim was a lien on the boat'and might he enforced as such in an action under the act concerning boats and vessels ; that A. might recover wages up to the completion of the trip, deducting any wages he may in the mean time have earned on any other boat.

      Appeal from St. Louis Law Commissioner’s Court.

    The facts sufficiently appear in the opinion of the court.
    Decker, for appellant.
    I. It is not in contemplation of the law to give a lien upon a boat unless the work was actually rendered on board the same. (See Blass v. The Robert Campbell, 16 Mo. 266; Jones v. Steamboat Morrisett, 21 Mo. 142.)
    Killam, for respondent.
    I. The court committed no error in refusing to dismiss. (2 Pick. 267, 232 ; 19 Pick. 349, 528 ; 12 Mete. 286 ; Sedg. on Dam. 216, 223 ; 8 Georg. 190 j 25 Term. 206 ; 11 Term. 273 ; 2 Swan, 605 ; 9 Gill, 288.)
   Napton, Judge,

delivered the opinion of the court.

This was a suit against the boat for wages for one trip as fireman, at the rate of thirty-five dollars per month. It ap.peared that the master of the boat shipped the plaintiff at St. Louis for a trip to New Orleans and back at thirty-five dollars per month. About fifteen or twenty miles below St. Louis the plaintiff was put ashore for the alleged reason that the boat had too many men. The trip lasted twenty-seven days ; during which time the plaintiff got employment elsewhere for about eight or nine days. A motion to dismiss the suit was made on the ground of a variance between the proof and the demand, and because the case made out did not create any lien on the boat.

We do not consider this case as involving any question as to the measure of damages in ordinary cases of a wrongful discharge of a servant before the expiration of his term of service. The subject of mariners’ wages is governed by rules growing' out of the peculiar nature of the service, and appropriately belongs to courts of admiralty, though undoubtedly actions at common law may be maintained for breaches of the contract between the master and his crew.. .The only question presented by this record is, whether the evidence submitted made out a claim which, under our statute concerning boats and vessels, was a lien on the boat;. and upon this point óur opinion is that the decision of the law commissioner was right. In the case of the city of London, 1 fm. Rob. Adm’r, R. 88, Dr. Lushington permitted a suit for wages where the seaman was dischargéd after the articles had been signed but before the voyage commenced, treating the case of an unjustifiable discharge during the voyage as one where the jurisdiction of the admiralty was indisputable. The case of Emerson v. Howland and others, 1 Mas. 45, was a suit for wages in a court having admiralty jurisdiction, and the claim was based upon an illegal discharge in a foreign port, and full wages were claimed up to the return of'the vessel to this country. Judge Story observed that the courts of common law usually sustained such claims in a special action on the case for damages for the illegal discharge, but that the admiralty did not hesitate to pronounce for compensation in a simple suit for wages. The frequent occurrence of suits of this description in the courts of admiralty jurisdiction in the United States may be seen by reference to the second volume of Peters’ Admiralty Eeports, where the opinions of Judge Peters and Judge Hopkinson and some notes by the former judge and subsequent editors consider the practice well settled in this country. (The Hazard, p. 384; The Gloucester, p. 403 ; note, p. 406 ; The Roloff, p. 428.)

Our statute provides for a lien in the case óf “ wages due to hands or persons employed on board such boat or vessel for work done or services rendered on board the same.” This suit is for wages, and there is no dispute that some services were rendered which fall within the meaning of our statute. In the case of Blass v. The Robert Campbell, 16 Mo. 266, the action was not for wages, but for damages for unlawfully forcing the plaintiff to go ashore at a remote point on the river among tribes of unfriendly Indians, where there was likely to be no opportunity of getting away and no moans of support at the place. The cases of Loft t. Steamboat Envoy, 19 Mo. 476, and Jones v. Steamboat Morrisett, 21 Mo. 142, are upon the point of the character of the services which come within the meaning of our statute; but in this case no doubt can be entertained that the services of a fireman are within the statute. The illegal discharge we have seen does not have the effect of driving the party to his action at common law for damages, but he may still sue for wages and the courts of admiralty will give him such wages as, under the circumstances, will indemnify him.

It will be observed that no point was raised in this case as to the proper measure of damages. No instruction was asked upon the trial. Chief Justice Abbott, in his work on shipping, states the law to be, that if a seaman is wrongfully discharged during a voyage, he is entitled to wages up to the successful termination of the voyage, deducting any wages he may in the mean time have earned in any other vessel; and this appears to have been the rule which guided the law commissioner in his verdict in this case. But Judge Story, in the case of Emerson v. Howland and others, 1 Mason, 45, permitted a recovery of wages only up to the time when the mariner returned to his place of embarkation, and not until the end of the voyage of the vessel from which he was discharged. He held, however, that there was not and ought not to be any fixed rule for all cases, but that each should be governed by its own circumstances, keeping, all the time and in every case, in view to allow a compensation which shall furnish a full indemnity for the illegal discharge. It is obvious that many of the rules adopted by courts of admiralty in reference to sea-going vessels and mariners may not be applicable, without modification, to our steamboats and their crews, making short trips of from one to four weeks. We see nothing unreasonable in the application of the rule laid down by Chief Justice Abbott in the present case, to allow wages for the trip and deduct what was earned in the mean time. Whether such a rule ought to be applied under all circumstances is another question not necessary to be determined here. As we are satisfied that the claim was a lien, and the propriety of the exact sum allowed the plaintiff is not a matter for review, we shall affirm the judgment.


text:
    Dermody, Respondent, v. Steamboat Maria Denning, Appellant. Grant, Respondent, v. Steamboat Maria Denning, Appellant.
    1. A justice of the peace rendered a judgment by default against a defendant, and allowed an appeal although the defendant made no motion to set the default aside, and the justice filed a transcript of his proceedings before the proper appellate tribunal. Afterwards, and within the time allowed by law, the defendant moved the justice to set aside the judgment by default; this motion the justice refused to entertain, as also a further application for an appeal. Held, that the defendant was entitled under these circumstances to have the cause tried upon the merits in the appellate court.

      Appeal from, Si. Louis Law Commissioner's Cowl.

    These were suits before a justice of the peace to recover wages alleged to be due plaintiffs for work done on the defendant. The defendant not appearing, judgments by default were rendered against the defendant on the 19th of September, 1857. On the same day, without first making motions to set aside the judgments by default, appeals were prayed and granted and affidavits and bonds were filed. The transcript and papers were filed in the St. Louis law commissioner’s court. Afterwards, on the 25th of September, the defendant moved the justice to set aside the judgments by default. The justice refused to entertain these motions or to make any entry of them in his docket. On the 28th day of September, 1857, defendant again appeared before said justice and tendered him affidavits for appeals with appeal bonds and prayed the justice to allow appeals. The cause was docketed in the law commissioner’s court. A motion was made in each canse in tbe following form: “ The defendant therefore prays this court that a rule may he granted requiring the said justice to amend his return of said cause to this court, and' that, should he fail to obey said rule, he may be compelled thereto by attachment.” The law commissioner’s court overruled these motions, and dismissed the appeal.
    Decker, for appellant.
    I. The court erred in refusing the rule and attachment upon the justice. (E. C. 1855, p.-, ch. 90, art. 9, § 14.) The appeal first taken was illegal and void. The first appeal, or rather the first attempt at an appeal, being nugatory, the party aggrieved stood precisely as if no such effort had been made. He had a right to come in at any time within ten days after said judgment by default and move to set the same aside, and within ten days after such motion file his bond and take his appeal.

      Kellam, for respondents.
    I. The jurisdiction of the justice ceases after the filing of the transcript and papers in the appellate court. The appellate court is then possessed of the cause.
   Napton, Judge,

delivered the opinion of the court.

These cases are precisely alike. We do not perceive any good reason for the refusal of the law commissioner to hear and determine them upon their merits. If the first appeal was valid, the cases ought to have been heard ; if that appeal was regarded as a nullity because taken before a motion to set aside the judgments by default had been made, then the justice should have heard the subsequent motions to set aside the defaults, which were made in time and followed by applications for appeal; and as the justice refused each of these applications, the law commissioner should have made such orders as would have enabled the appellants to obtain trials of their cases upon the merits.

The judgment is reversed and the cause remanded ;

the other judges concur.


author: Scott, Judge,

text:
    Wiley et al., Defendants in Error, v. Holmes, Plaintiff in Error.
    1. A. and B. gaye to C. their joint promissory note dated and payable at the city of New York. By the law of the state of New York at the date of the note, upon the recovery of a judgment against one of two joint debtors there was a merger of the debt and no action could afterwards be maim tained against the other joint debtors. C. instituted suit upon said promissory note in the state of Louisiana against A. alone, and recovered judgment. Held, that this judgment against A. was no bar to an action on the note against B. alone in the courts of this state.

      Error to St. Louis Court of Common Pleas.

    This was an action on the following promissory note: “ 120,202.97. New York, March 19, 1849. Twelve months after date, we promise to pay to the order of L. M. Wiley & Co., at their office in New York, twenty thousand two hundred and two 97-100 dollars, value received. [Signed] Bloomer & Holmes.” The defendants set up as a defence that by the law of New York, to which the note was subject, the promise and obligation of the note were joint and not several; that a judgment of a court of record had against one of the makers thereof alone was a merger and extin-guishment of the contract of the note as to the other maker thereof; that in a suit instituted by the plaintiffs in the fourth district court of New Orleans, Louisiana, upon said note against Bloomer alone, a judgment was rendered against him alone on the 25th of January, 1855. At the trial the plaintiffs introduced the note in evidence. The following extract from the bill of exceptions contains all the evidence introduced touching the judgment recovered in Louisiana: “ The defendant gave evidence showing that the law of the state of New York, when said note was made, touching joint contracts, was the English common law, and also read article first of title six, on pages 299 and 300 of volume two of second edition of the revised statutes -of New York, published in 1836, which may be read in supreme court. He also gave in evidence a judgment recovered by the plaintiffs prior to the commencement of this suit, to-wit, on the 25th of January, A. D. 1855, against Robert Bloomer, upon said note, in a suit instituted by them against said Bloomer alone in the fourth district court of New Orleans, in the state of Louisiana, the same being a court of record.” The cause was tried by .the court without a jury. The court, at the instance of the plaintiffs, gave the following instructions or declarations of law: “ 1. If the court believe from the evidence that a judgment was .obtained by the plaintiffs against Robert Bloomer on the note sued on in the state of Louisiana, such judgment is no bar to a suit on said note against Arte-mas L. Holmes in the state of Missouri. 2. Although the note sued on was drawn in New York and was payable in New York', and although the said plaintiffs have obtained a judgment in the state of Louisiana against Robert Bloomer, one of the makers of said note, such judgment is no bar to a recovery by the plaintiffs in the state of Missouri on said note.” The court refused the following instruction asked'by the defendant: “ If the court believe from the evidence that the law of contracts of the state of New York, at the time the note for $20,202.97 first declared upon in the petition in this cause was made, was the English common law, and that, prior to the bringing of this suit, the plaintiffs had recovered a judgment in a court of record upon said note against Robert Bloomer as one of the makers thereof, then the court should find for the defendant as to this note.”
    The court found and rendered judgment for plaintiffs.

      Todd, for plaintiffs in error.
    I. The law of the place of the contract governs as to its nature, obligation and interpretation. (Chitty on Contr. 91; Story on Confl. of Laws, § 263.) Whether a contract is joint, or joint and several, is a question that concerns the nature and attributes of the contract and therefore its obligation. (Chitty, -98 ; Story on Confl. 263.) The contract of the note in this case is at common law joint. At common law, a suit, and a recovery therein of a judgment, in a court of record against one of two.or more joint promissors is a merger and an extinguishment of the simple contract as to the others. (12 M. & W. 494; 1 Parsons on Contr. 12 note; Collyer on Part. § 757 ; 18 Johns. 460; 4 Johns. Ch. 566 ; 2 Mo. 66; Camden v. Clark, 2 Mich. 255 ; 7 Mo. 604; 18 Mass. 148.) The act concerning contracts (11. C. 1855, p. 351) can not affect the nature or obligation of contracts made and payable out of the state of Missouri as established by tlie law of the place of their making. The obligation of this contract is an entirety ; not the obligation of the makers of the note, but of both. It is destroyed when it is destroyed as to one. (18 Johns. 479; 3 Sto. 651; 8 Wheat. 35; 1 How. 315; Sedgwick on Stat. & Const. Law, 652; 4 Mart. 312 ; 7 Mart. 210.) If good as a remedy against one, it does not follow that a judgment against one stied alone is not a merger. The merger follows notwithstanding. (2 Mich. 255.) Our statute does not say that a merger shall not follow from a judgment in a suit against one on a joint contract. If it did, it would change its nature; it would impair its obligation by dividing it. At common law a suit upon a joint contract must be against all. This was not founded upon a rule of practice merely, but upon the nature of the contract, because there was but one obligation. If one or more of the joint promissors were beyond tbe jurisdiction, the creditor might proceed to the outlawry of the absentees. Their goods might be seized. Nonresidents may be proceeded against here by attachment, or by notice by publication, or by service out of the state. The judgment in this case was rendered in Louisiana. It will be presumed that the common law, as,"'understood in this state, prevails in Louisiana. (16 Mo. 110.) By the federal law judgments of sister states have the same credit, validity and effect in other states as in the states in which they are rendered. Said judgment is a bar to this suit.

      Knox Sf Kellogg, for defendant in error.
    I. The judgment against Bloomer in New Orleans was no bar to this suit. (R. C. 1855, p. 351; 16 Louis. 544.) The law of the place where the contract was made' can not control the manner of its enforcement in other states. Contracts, which at common law were joint, are here joint and several. No matter where the contract is made, one of several prom-issors may here be sued alone. Our statute does not impair the obligation of the contract. The reason why, by the law of New York, a contract is merged in a judgment against one of several joint debtors does not exist here. The judgment against Bloomer was not rendered in New York ; it was rendered by confession in the state of Louisiana. By the law of Louisiana, the judgment against Bloomer was no bar to a suit on the same contract against Holmes. (16 Louis. 544.)
   Scott, Judge,

delivered the opinion of the court.

This suit is founded on a promissory note executed to the plaintiffs by the style of L. M. Wiley & Co., payable in Now York. The note was signed- “ Bloomer & Holmes” — a partnership composed of the defendant and Robert Bloomer — and dated “New York, March 19th, 1849.” The defence was that by the laws of New York the note was a joint one, and that by the law of that state a judgment recovered against one of the parties thereto was a merger and- extinguishment of the contract as to the other party, and that afterwards no action could be maintained upon it; that in an action on the said note in the state of Louisiana a judgment was rendered against the said Robert Bloomer, one of the parties thereto, and therefore the contract was extinguished as to both of them. There was a judgment for the plaintiffs.

It is well settled that the law of the place of the contract governs as to its nature, obligation and interpretation, and also that it determines whether a contract is joint and several, or several. It is equally clear that by the common law, which is shown to be the law of New York on this subject, the note sued on is a joint one, and that, if a creditor sues one debtor on a joint contract and recovers against him a judgment, the debt is merged in the judgment, and, in case the judgment is not satisfied, the creditor can not afterwards sue the other joint debtor or debtors. This was on the ground that the creditor by his own voluntary act had extinguished his debt as to one of the debtors, and a debt being extinguished as to one was extinguished as to all of the debtors. At common law, in case of joint contracts, the joint debtors, who could not be served with process, might be pros ecuted to outlawry; in which event, the estate of the outlaw falling into the hands of the crown, the creditor might, by an application to the king, obtain satisfaction of his demand.

At common law, if one of the joint debtors died, although no suit at law could be sustained against the representatives of the deceased debtor, the cause of action surviving only against the living debtor, yet courts of equity, in such cases, afforded relief, and permitted the debt to be recovered against the representatives of the deceased debtor. And so far was this carried, that the representatives of the deceased debtor might be sued before any action was instituted against the survivor. (Winter v. Innes, 4 Mylne & Craig, 109.) This must have been on the ground that the creditor in nowise contributed to the act which deprived him of his action at law; and it shows that, although technically at law the remedy against one of the joint debtors may be lost, yet, where the creditor does no act himself which affects his remedy, that in equity and substantial justice it will- be preserved for him. Thus it would seem that at the common law a destruction or taking away of the right of recovery in a suit at law against one of the joint debtors does not destroy all remedy against him and the surviving debtor, but that the right of recovery would remain as to all, but yet to be pursued in different forums. We are of the opinion too that it may be inferred from this that the act by which the creditor’s remedy is to be merged or extinguished must be a voluntary one on his part. It must be his own act. If the act of God will not extinguish the creditor’s right of recovery on a joint demand, can the debtor by his own act do it ? Can two debtors create a joint debt in a state where the common law prevails, and afterwards, even before the debt becomes due, by removing into different states, prevent a recovery of it, by setting up the defence, to an action against one of them, when only one can be sued, that by the law of the place where the contract was made it was a joint one, and the action on it must be joint and against both or it must fail. To a plea containing such a defence, would it not be a good replication that the defendant by his own act in removing to another state had prevented the institution of a joint action ?

We do not see how the international law as to the nature, obligation and interpretation of contracts can affect this question. If both the debtors had remained in New York and whilst there the debt had been merged as to one of them by the voluntary act of the creditor, there might be some propriety in holding that this action could not be maintained. But as the defendants by their own act prevented the law of the place from operating on the contract, on what principle can they claim the benefit of that law which they have abandoned and renounced? It is the law of New York and of all other civilized states that a debtor shall not, by his own voluntary, unauthorized act, defeat the claims of his creditors. It is no. answer to this to say that the parties must have contracted in contemplation of the possibility of such a state of things and should therefore have provided against it. Parties may contract in reference to a foreign law, or they may agree that the law of their residence shall accompany them wherever they may go ; but no system of jurisprudence would adopt it as a rule for the interpretation of contracts, in the absence of all stipulations on the subject, that the parr ties, at the time of making a contract in a place of which they were citizens, had in contemplation the possibility of their becoming residents of another country. Parties may be supposed to contract in reference to what may transpire or what may take under the laws of the country to which they are subject, but they can never be supposed to have in mind a state of things inimical to the interests of the state of which they are members.

The case of Dennett v. Chick, 2 Greenl. 191, is a stronger one than that under consideration. There Chick, one of two joint debtors in a promissory note, was sued in the state of Maine. The other joint debtor, Ham, not being found in that state and having no domicil there, no service was made on him. The defendant Chick appeared and pleaded in bar a judgment recovered in an action on the same note in the state of New Hampshire against Ham, .Chick having no domi- . cil or property in that state. A writ of execution was issued on the judgment and returned unsatisfied. To this plea there was a demurrer and the demurrer was sustained. The case of Condee & Scribner v. Clark & Brown, 2 Mich. 255, is unlike that before us. We understand that in this case the state of Michigan gave the law of the contract. The merger was caused by a recovery in the state of Ohio against one of the parties. Afterwards suit was brought against both of them in the state of Michigan. If this case decides that, under the circumstances, no action could be maintained on the note against either of the parties, it is opposed to the above cited case from Greenleaf. But if it only intended to maintain that a recovery could not be had in the action as brought, on the ground of variance between the declaration and evidence, (both parties being sued when the cause of action was merged as to one of them,) wo have nothing to say against it, as, by the common law, it was clear that the action could not be maintained. In that case, too, it appears that the joint debtors were residents of the state of Michigan, and that at the time of the commencement of the action in the state of Ohio against' Brown, one of the joint debtors, he was a citizen of the state of Michigan. So in fact the joint debtors by their act had not compelled the creditors to sue in the state of Ohio, and the suit was voluntary on their part, not induced by the conduct of the debtors.

Our statute by making all joint contracts joint or several and allowing a suit against one or more of the joint debtors, has altered the doctrine of the common law in relation to actions on joint demands.

The other judges concur ; affirmed.

       A motion for a rehearing was filed in behalf of the plaintiffs in error in this case; it was overruled.


author: Soott, Judge,

text:
    Welch et al., Plaintiffs in Error, v. Anderson, Defendant in Error.
    1. To entitle a -widow to dower under the third section of the dower act of 1845 (E. C. 1845, p. 430), it was necessary that she should mate her election so to take in the mode prescribed by the seventh section of said act; otherwise she would be entitled to dower under the first section.
    2. The right of the widow in such case to elect is strictly personal; it is not transmissible by descent.
    3. The widow and the heirs may, by agreement and without a formal election by the widow, determine the kind and quantity of estate she shall take as dower.
    4. Suits for partition may be maintained in behalf of those having equitable titles only.

      Error to Lincoln Circuit Court.

    Demurrer to a petition for partition. The petition was an amended and supplemental one filed October 20th, 1857, in a suit for partition originally instituted, August 21, 1854, by Susannah Anderson, widow of Ransom T. Anderson, deceased, against the heirs of said R. T. Anderson. Susannah Anderson having died, her heirs filed an amended and supplemental petition. This petition is in substance as follows: “ Plaintiffs state that to the October term, 1854, of the Lincoln circuit court Susannah Anderson filed her petition against said defendants, which petition is as follows — ‘ plaintiff states that in the year 1852, Ransom T. Anderson departed this life intestate and without issue of his body, leaving the following named persons his only heirs, to-wit, Susan-nah Anderson his lawful widow, Jeremiah Anderson his father, and James Anderson, Harrison Anderson, Sarah Cochran, Julia Williams and Mary Anderson, his brothers and sisters in equal degree ; that he died seized in fee simple of the following described real estate, situated in the county aforesaid, to-wit: [describing it] containing in the aggregate four hundred and 'eighty-five acres ; that plaintiff as widow aforesaid is entitled to one equal half of said land, and each of said defendant heirs to one equal sixth part of the other one-half thereof; that the debts against the estate of said Ransom T. Anderson are paid, and no reason exists why partition of said lands should not be made according to the rights of the parties. Plaintiff therefore asks that each of said defendants be duly notified of this suit and that the court will adjudge partition of said lands among said parties according to their respective rights, and appoint commissioners to make said partition.’
    “ Plaintiffs further state in this their amended supplemental petition that on the petition aforesaid a summons for the said defendants, Jeremiah Anderson, James Anderson, Harrison Anderson and James Williams and Julia Williams his wife, issued, directed to the sheriff of the county aforesaid, which summons was duly served on each of them; that another summons issued for the defendants Sarah Cochran and Mary Anderson, directed to the sheriff of St. Charles county, in which said two defendants then lived; but said sheriff of St. Charles failing to return said summons in due time as commanded, the defendant James Anderson, in order to prevent delay of the suit, went to St. Charles and obtained from said two defendants a waiver of notice, and the same was filed in open court, as the records of the case will show; that it appearing to the court, on the filing of said waiver, that each of said defendants in the cause had notice of the suit, and all failing to appear and defend the same, the court rendered judgment of partition of said lands by default, and appointed commissioners such partition to make that the said partition was made on the 7th of May, 1855 ; that after said partition was made, but before report thereof to the court, the said Susannah Anderson died, leaving plaintiffs her only sons, who were duly made parties to the suit; that on the filing of the report, defendants moved the court to set aside it and the judgment of partition for several causes — one of which was the want of legal notice ; that the court overruled the motion and confirmed the report ; that the defendants appealed to the supreme court, which reversed the judgment and remanded the cause ; [see Anderson v. Anderson, 28 Mo. 879 ;] that after the death of said Ransom T. Anderson, to-wit, October 16,1852, the said Susannah Anderson, his widow, took out letters of administration on his estate and was about to proceed with said administration as by law directed; that said defendants suggested to her that said administration would cause delay in the partition and distribution of said estate, would be very expensive and wholly unnecessary, as all the parties in interest were of full age and could by agreement pay the debts of said estate and determine the respective rights of each by agreement; “ that said parties then agreed that said administration should be abandoned and not carried into the court last aforesaid for confirmation or rejection; that said widow should pay one-half the debts of the estate, including one-half the expense of settling and making distribution and partition thereof, and have one equal half of the estate, both real and personal, as by law in such case provided; that said parties then employed Charles Wheeler, Esq., to reduce said contract to writing, and on the 15th day of November, 1852, he wrote the articles of agreement which said parties executed on said day, and a copy of which is herewith filed, the original being filed at the office of the clerk of the court last aforesaid, with the other papers of said estate. Plaintiffs know that said Susannah Anderson believed at the time she executed said contract that it embraced the entire estate, both real and personal, and they have no doubt that said defendants also believed it. Plaintiffs further state that the omission to include said real estate or the said Susannah’s interest therein, was, as they believe and charge the fact to be, an innocent omission and contrary to the intention of both parties aforesaid; that said Susannah Anderson paid one-half of the debts of the estate, including expense of settlement, and performed every part of her said agreement in good faith; that she by consent of defendants brought her said action of partition, alleging therein that she was entitled to one equal half,of said real estate; that Jeremiah, James and Harrison Anderson, and James Williams and wife were duly summoned as defendants in the cause and had delivered to them a true copy of the petition, in which she distinctly claimed the interest aforesaid, yet they suffered judgment of partition to be rendered against them by default and partition to be made according to the petitioner’s prayer; that the administration of said estate being abandoned by the agreement aforesaid, it was not carried into court, and consequently the said Susannah was thereby deprived of the benefit of the notice to make her election of the interest which she would take in said estate, which it would have been the duty of the court to give her had the administration been within its jurisdiction ; that defendants, well knowing that said estate owed but a small amount of debt and that it would be greatly to said widow’s interest to take one equal half thereof subject to said debts, readily assented to and agreed to her said rights without further proceedings in said county court; that defendants, at all times from the date of the said agreement and the discontinuance of said administration, admitted and recognized her right to one equal half part of said real estate, and therefore she filed no declaration of her election ; that said Susannah had a vested right to one-half of said real estate ; that this right vested in plaintiffs as her heirs. Plaintiffs therefore pray the court to adjudge to them such equal half; to appoint commissioners to set the same apart to them, and .-grant such other relief,” &c.
    To this petition the court sustained a demurrer.

      Henderson and Porter, for plaintiffs in error.

      I. The court erred in sustaining the demurrer. The abandonment of the administration and the agreement of the parties constitute a sufficient waiver of mere form of election. Until the widow receives notice as provided by the act of 1847, her right of election remains. In the absence of the grant of letters of administration, there is no necessity for filing with the court a written election. Until administration, the right of the widow to elect is not lost by the lapse of any length of time. Parties may settle their rights by agreement. The formal election may be waived by the parties interested. The letters in this case were never approved. The agreement set forth in the petition is sufficient to bind the heirs to a compliance with its provisions. It was made on a good and a valuable consideration. The facts stated in the petition are sufficient to require a reformation of the instrument and a decree of title. A court of equity having jurisdiction of the cause will proceed to make partition and settle the respective rights of the parties. The statute concerning partition does not divest courts of equity of their jurisdiction in partition proceedings. (18 Mo. 468; 1 Sto. 654; 8 Paige, 546; 8 Bibb, 306; 6 Dana, 276; 8 Price, 518.) The plaintiffs are entitled to amend if necessary.

      jBroadhead, for defendants in error.
    I. An election was necessary to vest in the widow the right to one-half the land. (Hamilton v. O’Neal, 7 Mo-. 11.) The statute is explicit. This election can be made only in the mode pointed out by the statute, and within the time prescribed. The widow made no election either in the manner prescribed in the statute or in any other manner. The instrument in writing set out in the petition does not embrace the land at all, but only personal property. The widow could not ask a court of equity to relieve her from the consequences of her own neglect in failing to comply with those terms. The election is not to be viewed as a contract, nor ought it to be governed by any of the rules which apply to contracts between individuals. The widow having made no election, the agreement could not operate to vest in her the legal title to any portion of the land claimed. The real estate is not embraced in the agreement. The court is not asked to reform the agreement. In proceedings at law for partition, the plaintiff must show a legal title. (McCabe v. Hunter, 7 Mo. 355.) Even if a court of equity can entertain a bill for partition of titles merely equitable, the court must first perfect them into legal titles. This is not asked in the petition. There, is no equity in the petition.

   Soott, Judge,

delivered the opinion of the court.

This case stands on a demurrer to the amended petition. The ancestor from whom the lands descended died in 1852 ; consequently the act in the code of 1845 will determine the widow’s right to dower in her husband’s real estate. By the first section of that act, the widow, as a matter of right, at the death of her husband, was entitled to be endowed of the third part of all the lands whereof her husband, or any other person to lfis use, was seized of an estate of inheritance, at any time during the marriage, to hold and enjoy during her natural life. When the husband died without any child or other descendants in being capable of inheriting, the widow had her election to take her dower as provided in the first section discharged of debts, or to take all the real and personal estate, which came to the husband in right of the marriage, remaining undisposed of, absolutely, and one-half the real and personal estate belonging to the husband at the time of .his death absolutely. The provisions of the dower act contained in the code of 1835 correspond, in relation to the matter under consideration, with those contained in the code of 1845. In the case of Hamilton v. O’Neil, 9 Mo. 10, which arose under the act of 1835, it was held that the widow was entitled to dower under the first section of that act, which is similar to the first section of the act of 1845, unless she made an election to take otherwise as prescribed by law. It is obvious that when a right grows out of an election, it can not arise or come into existence until an election is actually made. (United States v. Grundy, 3 Cranch, 337.) The husband of the ancestor of the plaintiffs having died without children, and she having failed to make an election as to the dower she would take, there was no right or estate in her capable of descending on her heirs. The right of election being personal, it was not transmissible by descent; nor is it conceived that a failure to notify the widow of her right to make an election can confer on her heirs a right which they did not otherwise possess. It is unnecessary to determine the question, whether, if by any fraudulent contrivance of those interested to prevent an election a widow fails to make one, they will be permitted to reap the fruits of their misconduct. We conceive that an election can only be made in the manner prescribed by law. This rests on obvious principles. The matter of an election is purely a creature of positive law. Outside of the statute it has no existence. Hence if it is not clothed substantially with the requisites exacted by the statute, its existence can not be recognized. (Kemp v. Holland, 10 Mo. 259.)

But there is a feature in the petition of the plaintiffs which commends their cause to the more favorable attention of the court. That feature is, that their rights, although failing under the law of election, are supported by a valid contract. We can see no objection to this view of the case. Parties sui juris are as competent to contract in relation to dower as to any other subject. The widow could agree with the heirs capable of binding themselves as to the quantity of the estate she should take as doweress. If a mistake has occurred in committing the agreement to writing, there is nothing in the nature of the subject which exempts that agreement from reformation according to principles of equity more than any other agreement. If the alleged mistake is clearly and satisfactorily established, there is no reason why it should not be corrected as to all those who were capable of contracting and who are bound by the agreement. Married women and minors would not of course be bound.

Under our system of jurisprudence, there is nothing which forbids a party having an equitable title from applying for partition in the forms adapted to such relief employed in courts of equity. It is well settled in the jurisprudence of America that a mistake in a written agreement is not only a defence in equity, but that a complainant may be entitled to the reformation of a contract and to the relief consequent upon such reformation ; or, in other words, that a mistake in a written agreement is not only a defence to a petition, but it may be stated as a ground of equity, and affirmative relief be granted upon its being clearly and satisfactorily established. The circumstances of this case strongly corroborate the allegation of the bill as to the error committed in draught-ing the agreement set up as the foundation for the relief sought by this petition, and if they are not explained away or counteracted in proof, should entitle the plaintiffs to a judgment against the parties to it who were sui juris.

Judgment reversed and remanded;

Judge Richardson concurs. Judge Napton concurs in reversing the judgment.