text:
    Hardcastle et al., Plaintiffs in Error, v. Hickman et al., Defendants in Error.
    1. A. assigned his goods and stock in trade to B. for the benefit of his creditors ; C. commenced a suit by attachment against A. and attached the goods assigned in the hands of B., and summoned B. as a garnishee; B., to obtain a surrender to himself of the goods attached, executed a bond in favor of C., of which the condition is as follows : “ The condition of the above obligation is such, that, whereas the said obligee has commenced suit ' in the St. Louis court of cpmmon pleas, by attachment, returnable, &c., against A.; and whereas the sheriff of St. Louis county has by virtue of said attachment seized upon and taken into possession a part of the stock of merchandise embraced in a deed of assignment from said A. to B., and has also summoned said B. as garnishee in said court; and whereas said ob-ligee lias directed and wiE cause the sheriff of St. Louis county to deliver and yield up to said B. the goods and merchandise so by him the said sheriff levied on by virtue of said writ of attachment: Now, if said obligee should fail to sustain liis said suit so commenced by attachment as aforesaid — or if said obligee should sustain his said suit so commenced by attachment as aforesaid and obtain judgment against said B. as garnishee of A., and the said B. shall within thirty days thereafter pay the amount of such judgment to said obhgee — then this obligation to be void. It is understood that by judgment is meant final judgment, and that the said B. will, in fulfillment of the condition of this obligation, pay any judgment which may be rendered in the attachment suit aforesaid against said A., or against himself as garnishee of said," Spc.

      Held, that the contingency provided for in the condition of the bond was a failure, on the part of B., to pay such a judgment in the attachment suit as would reach the property attached; .that is, one against himself; not a general judgment against A.

      Error to St. Louis Gowrt of Common Pleas.

    Demurrer to a petition. The petition is as follows: “ Plaintiffs state that said defendants on the 17th day of October, 1853, made their certain promissory obligation, under their hands and seals, which is in the words and figures following, to-wit: ‘ Know all men by these presents, that we, Benjamin P. Hickman and Kobert Fisher, as principals, and James M. Hughes, surety, are held and firmly bound unto Addison L. Hardcastie, George F. Hardcastie and Walter B. Carr, doing business in St. Louis under the name and style of A. L. Hardcastie & Co., in the penal sum of $20,000, for the payment whereof we bind ourselves, our heirs and assigns firmly by these presents, sealed with our seals and dated this 17th of October, 1853, at St. Louis, Missouri. The condition of the above obligation is such, that whereas the said obligees have commenced suit in the St. Louis court of common Pleas, by attachment, returnable to the February term, 1854, of said court, against Jolm Mudgett and William C. James ; and whereas the sheriff of St. Louis county has by virtue of said attachment seized upon and taken into possession a part of the stock of merchandise embraced in a deed of assignment from said Mudgett & James to said Hickman & Fisher, and has also summoned said Hickman and Fisher as garnishees in said suit; and whereas the said obligees have directed and will cause the sheriff of St. Louis county to redeliver and yield up to said Hickman • & Fisher the goods and merchandise so by him the said sheriff levied on by virtue of said writ of attachment: Now if said obligees should fail to sustain their said suit so commenced by attachment as aforesaid, or if said obligees should sustain their said suit so commenced by attachment as aforesaid and obtain judgment against said Hickman & Fisher as garnishees of said Mudgett & James, and the said Hickman & Fisher shall within thirty days thereafter pay .the amount of such judgment to said obligees, then this obligation to be void. It is understood that by judgment is meant final judgment, and that the said Hickman & Fisher will, in fulfillment of the condition of this obligation, pay any judgment which may be rendered in the attachment suit aforesaid against said Mudgett & James, or against themselves as garnishees of said Mudgett & James. [Signed] Benj. F. Hickman (seal), Robert Fisher (seal), James Hughes (seal).’ ‘ It is understood' and agreed that as the sheriff of said county has already sold a few articles under said attachment, that the said articles are not to be delivered under the above agreement, the said articles being the same sold on the morning of the above mentioned day at public sale, and that this stipulation is a part of the above obligation. As witness our hands and seals the day and year above written. [Signed] Benj. F. Hickman (seal), Robert Fisher (seal), James M. Hughes (seal) which instrument in writing was delivered duly signed and sealed by said defendant to said plaintiff, and it is herewith filed as an exhibit hereto ; and the said goods, wares and merchandise, mentioned in said instrument as levied upon by said sheriff, were delivered up to said Hickman & Fisher, excepting only the said articles that had been sold by the sheriff of the value about five dollars; and the said Hickman & Fisher received the said goods, wares and merchandise so delivered to them by said sheriff, and caused the same to be sold and disposed of, and received the proceeds thereof. Plaintiffs further state that on the 19th day of February, 1856, at the February term of the St. Louis court of common pleas, they, the plaintiffs, recovered a final judgment against John Mudgett and William C. James, in the said suit of attachment against them, wherein said goods, wares and merchandise had been seized by said sheriff, for the sum of $10,948.78, with costs ; which said judgment is in full force and effect, not satisfied or appealed from, or otherwise vacated; and neither the said Mudgett & James or the said defendants, or either of them, have, although often requested so to do, paid the same or any part thereof, but the same still remains due and unpaid; and the plaintiffs ask judgment against the defendants for the amount of said judgment and the costs thereon, with interest from the time of the recovery of said judgment, together with costs of this suit.”
    The court sustained the demurrer.

      Shepley and B. A. Hill, for plaintiffs in error.
    I. The literal meaning of the words of the bond is clear. It is to pay upon a judgment being rendered against Mudgett & J ames. The concluding portion of the condition appears upon its face to be added with a view to make the obligation certain and beyond dispute. There is no ambiguity in the bond and no repugnancy in its provisions. If the bond was made under a mistake of law as to the responsibilities of the parties, this is no defence. (4 Mass. 427 ; Hunt v. Eousma-nier, 1 Pet. 361; 2 Dev. 508; 6 Johns. Ch. 166 ; 2 Mason, 342 ; 17 Verm. 435 ; 7 Paige, 137 ; 1 Stew. 81; 2 Humph. 148 ; 5 Humph. 529 ; 1 Gilman, 595 ; 4 Maryl. Ch. D. 335 ; 25 Ala. 452 ; 11 Texas, 211; 16 Ill. 457 ; 15 How. 162; 13 Ark. 129.)

      S. T. & A. D. Glover, and Gantt and Whittelsey, for defendants in error,
    cited the following authorities: 2 Pars. 17 notes 14,19,115 ; 5 Term, 522 ; 1 How. 187, 169 ; 5 B. & A. 606; 4 M. & S. 420 ; Cowp. 9; 1 Edw. Oh. 34; Chitty Cont. 61, 76; 8 Mass. 216; 19 Maine 397 ; Lieber’s Hermeneutics, 99, 120; 1 How. 183 ; 4 Art. 92 ; 6 Mart. 662.
   Napton, Judge,

delivered the opinion of the court.

The construction, which the court of common pleas gave to the bond sued in this case, is, in our opinion, the only one which it' could receive consistently with the intent of the parties. The purpose of the instrument sufficiently appears upon its face. A suit had been instituted by the plaintiffs against Mudgett & James by attachment, and the property assigned to defendants was sought to be made liable to the attachment. The defendants, in order to retain the property and proceed with the sales they had commenced, agreed to pay the plaintiffs this debt if the suit against them as garnishees should prevail. The question between them was whether the property was liable to the attachment, or whether the assignment would hold it free from the attachment; and to provide for the settlement of this question either way was, beyond all doubt, the matter which the parties set about to accomplish in this bond. They did, beyond all doubt, make provision for this contingency, whichever way it might turn out. But in a supplementary or explanatory clause of the agreement another contingency is mentioned, which is, literally construed, a mere general judgment against Mudgett & James, and thus construed the contingencies previously provided for are rendered superfluous.

There could be no judgment against Hickman & Eislier without first a judgment against Mudgett & James. If the word “ or” in the explanatory clause be replaced by “ and” the whole agreement is easily explained and reconciled. This must be done in order to carry out the intent of the parties, or the judgment against Mudgett & James referred to in the explanatory clause must be understood to be such a judgment as would reach the property attached, and not a general judgment binding and reaching his general property — a.judgment in which Hickman & Fisher could have no concern or interest. The judgment spoken of in the bond, which was to fix the liability of the defendant, is a judgment in the suit by attachment — a judgment which would reach the property attached.

It does not appear from the recitals or obligatory clauses of this bond, that the validity of the claim of the plaintiff against Mudgett & J ames was a matter of dispute or doubt. But the matter in issue between the plaintiffs and defendants was, whether the property assigned to the latter was liable to this judgment or not. It may be that the parties supposed, that, as there was a plea in abatement put in, no separate judgment could be obtained against Mudgett & James. It may be that they supposed the law to be, that, where an assignment was fraudulent on the part of the assignors, Mudgett & James, it would fall altogether, although the creditors provided for may have had no participation in the fraud. It is not material what opinion may have been entertained about this matter. The question is, what kind of a judgment did they have in view when they spoke of a judgment against Mudgett & James alone? Did they mean a general judgment after a dismissal of the attachment, or did they mean a judgment that would bind the property attached ? They speak of a judgment against the defendants, Hickman & Fisher, and they speak of a judgment against the defendants, Hickman & Fisher and Mudgett & James ; and, in the concluding explanatory paragraph, they speak of a judgment against Mudgett & James alone. But, throughout, they speak of the judgments as obtained in the attachment suit, having clearly in view a judgment against the property in dispute, and not a general judgment in which the defendant could have no concern unless it clearly so appeared by the agreement.

It is said that no ambiguity is to be found in the language used in this concluding paragraph of the bond, and that we must give full effect to it, cost what it will. We do not consider ourselves at liberty to give this literal construction to it at the expense of sacrificing all the previous words of the agreement, and the manifest intent of the parties as gathered from the whole instrument. This we must do in order to carry out the views of the plaintiffs.

What is the necessary consequence of giving to this instrument the construction claimed by the plaintiffs ? The substantial amount of the entire agreement is, according to this interpretation, that Hickman & Fisher bound themselves to pay a claim of the plaintiffs against Mudgett & James whenever it was finally established by a judgment in court. Now if this was the object of the parties — and it could be nothing more nor less, if we give the construction to the bond now insisted on — what was the use of any reference in the bond to the attachment, or to the probable or possible result of that attachment so far as it might affect the defendants and their claims under the assignment ? It was impossible for the plaintiffs to make any thing out of their attachment, or procure any judgment against Hickman & Fisher, unless the debt of Mudgett & James was first established. If that had no existence, all inquiry into the fraud of Mudg-ett & James was unnecessary and superfluous; and if the intent was to make Hickman & Fisher responsible in the event of establishing the demand against Mudgett & James and upon that alone, it was perfectly useless, in the paper writing which was to provide for this, to say a word about the attachment or make any reference to any judgment against Hickman & Fisher, for no judgment could ever be obtained against Hickman & Fisher unless one was first had against Mudgett & James ; and if the latter contingency was to fix the liability to be provided for, why name any thing about the former ? The intent was, as the argument of the plaintiffs assumes, that Hickman & Fisher were to be responsible when the debt against Mudgett & James was established and however the attachment suit might terminate as to Hickman & Fisher and the property in the assignment. We then have the parties guilty of the absurdity of providing for a contingency which really and in fact had nothing whatever to do with fixing their liability. The contingency mentioned in the explanatory- clause, construed in this way, was the only one of any importance, and it was plainly one controlled by circumstances altogether independent of the attachment and assignment, and was in truth to be decided upon the single fact of indebtedness between Mudgett & James and the plaintiffs.

One would think that this purpose could hare been accomplished in a much plainer and more simple and intelligible manner. We must suppose that this purpose must have sprung up near the conclusion of the writing sued on. It certainly did not exist when it was commenced, for it is totally inconsistent with every portion of the instrument except the concluding paragraph. If it was the design of this concluding paragraph to carry out a purpose of this sort, entirely inconsistent with all that preceded it and rendering the whole previous writing a dead letter,.it is strange that men of business (habits, competent to express their intentions clearly, did not abandon the agreement framed under a different idea as useless and not conforming to their subsequent understanding. It would have been more easy, more simple and more natural to have done this than to have attempted to interpolate a new contract in the old one, introducing a new liability swallowing up the old ones, and rendering all that had gone before entirely superfluous.

But the prominent, leading idea of the supplementary paragraph is to provide for the finality of the judgment, to render it clear that whatever judgments had been previously described should be only final ones, the termination of the litigation. Restricting the judgment against Mudgett & James to one of this character, and which necessarily reached the property in dispute, the entire agreement is consistent, easily understood, rational and perfectly fitted to effect the purposes which the recitals show were in the minds of the parties. To adopt the other interpretation and give a full, independent and unrestricted meaning to the words of the explanatory, concluding clause, would be to abolish all the recitals and obligations previously written down, and would be moreover imposing an obligation upon the defendant, for which no reason is recited or alleged on the face of the agreement, and for which no motive can be perceived in the circumstances attending the transaction.

Judge Scott concurring, the judgment is affirmed ; Judge Richardson had been of counsel.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    The State, to use of Miller’s Administrator, Defendant in Error, v. Bidlingmaier, Plaintiff in Error.
    1. Where the interests of two estates in course of settlement conflict — as where there is a demand in behalf of one estate to be presented for allowance against the other — the same person can not act as the administrator of both estates in the matter of obtaining an allowance of the demand; should a demand be allowed under such circumstances 'against one of the estates, the proceeding will be regarded as a nullity.

      Error to St. Louis Court of Common Pleas.

    This was a suit brought by and on the relation of Adolph Kehr, as administrator de bonis non of Catherine Müller, deceased, against Bidlingmaier and others, securities in the administration bond of Jacob Muller, deceased, who was the administrator of said Catherine up to the time of his death and prior to the appointment of Kehr. The breach assigned was the alleged nonpayment to said Kehr of a balance found on a settlement of said Jacob’s account with the estate of said Catherine, to be due by him to said estate.
    The defences set up were that said alleged final settlement was unfair, false and erroneous ; that it was invalid and of no force and effect as against said securities ; that said securities were not notified of said settlement and had no opportunity to defend against the same ; that said Jacob was the owner of the property (except the real estate), and that it was inventoried by him as belonging to said estate by mistake and through ignorance.
    The case was tried by the court, and the facts set forth in its finding are substantially as follows: On the 22d day of June, 1850, the bond sued upon was executed and Jacob Müller appointed administrator of said Catherine Müller. He died July 3, 1854, leaving his administration unsettled. On the 6th day of July, 1854, said Kehr was appointed his administrator, and on November 6, 1854, said Kehr was also appointed administrator de bonis non of said Catherine Mül-ler. On the 21st day of March, 1855, at the March term of the St. Louis probate court, said Kehr, as administrator 'of Jacob Müller, made final settlement of said Jacob’s administration of said Catherine’s estate, and a balance of 110,449.85 was adjudged to be due from said Jacob’s estate to said Catherine’s estate. The court further found that the amount due at the date of the trial was $8,194.91, and rendered judgment for the penalty of the bond, assessing the damages at the sum last above named.
    A motion for a review was overruled.

      Krum & Harding and Hamilton, for plaintiffs in error.
    I. The court below should have given judgment for defendant ; 1st, because the alleged settlement was unfair, irregular, false and void as to the securities. The policy of the law should not permit an administrator of one estate to make a settlement charging the estate with indebtedness to another estate of which he is also administrator, thus occupying the position of plaintiff and defendant; 2d, because if such a course be permitted at all, enough is shown in this case to impeach the settlement for fraud; 3d, because an administrator de bonis non can not sue the securities of his predecessor for a balance due by the predecessor to the decedent’s estate. The administrator de bonis non can only administer the goods and assets remaining unadministered. Creditors, legatees and distributees are the only parties who can sue upon the bond. (6 Ala. 36 ; 6 S. & M. 323 ; 20 Mo. 99 ; K. C. 1845, art. 7, sec. 6, Administration Act.) 4th, because it does not appear that the estate of Jacob Müller was insolvent, or that any attempt has been made to collect the bal-anee claimed from his estate, or judgment order in favor of Catherine Miiller’s estate against him. (3 Brev. 530 ; 6 Ala. 36; 2 Black. 52.)
    Whittelsey, for plaintiff in error.
   Scott, Judge,

delivered the opinion of the court.

There seems to be a departure from correct principles in the management of this suit. This is to be attributed to the action of the probate court in permitting the same individual to represent interests hostile to each other. The record offered in evidence shows that Adolph Kehr — as administrator of Jacob Müller, who was administrator of Catherine Muller — voluntarily appeared in court, and made a settlement of his account as such administrator, he (the said Adolph Kehr) being also the administrator of Catherine Muller. Adolph Kehr, as administrator of Catherine Muller, could not settle an account with the same Adolph Kehr, as administrator of Jacob Muller. As the claims of the two estates were antagonistic they should have been represented by different persons. As this dilemma was produced by the taking upon himself the administration of two estates the interests of which were conflicting, Kehr should have resigned one of those administrations when this conflict of interest appeared. Fair dealing required such a course, and it was necessary to preserve the proceedings from suspicion. If any error had been committed in such a proceeding to the prejudice of Jacob Müller’s estate, who was there to protect it by an appeal? The administrator was interested by way of commissions in making the settlement. There is no other mode of treating such irregularities than by regarding the proceedings in which they occur as nullities. This is in accordance with the principle of Caldwell v. Lockridge, 9 Mo. 358, which maintains that, where a proceeding was had in the county court under such circumstances that a party affected by it had no opportunity of appealing, the proceeding would be regarded as a nullity.

The real plaintiff, Kehr, not yet satisfied, brings this suit, by which he would reap the fruits of his conduct in the probate court. Although this action is brought in the name of the State nominally, yet the real party is he for whose use the suit is brought. That party is Adolph Kehr, as administrator of Catherine Muller. The suit is brought on a bond in which Jacob Muller is the principal, and the same Adolph Kehr is his administrator. It is true it is only against the sureties to the bond. But have not those sureties a right to all the defence that the administrator of Jacob Muller could make to the action ? All the books, papers and accounts, to the use of which the securities are entitled, are in the hands of him who is prosecuting this suit. So, in effect, Adolph Kehr, as administrator of one estate, is prosecuting a suit against Adolph Kehr, as administrator of another estate. How is the defendant’s estate to be protected ? It is not for Kehr, with the bias on his mind, to determine whether it is indebted or not. That estate should be defended by one who has not an interest that it should go undefended. By holding on to the administration of Jacob Muller’s estate, he puts it out of the power of these defendants to make a defence. Had this suit been brought against the administrator of Mül-ler as well as against the sureties, the irregularity of the proceeding would have been apparent; but Kehr, availing himself of the statute which allows any one or more of the parties to a contract to be sued, omits suing himself, and only sues the sureties, he himself representing the principal in the bond. A party by his own act should not obtain this undue advantage. There is no reason nor necessity for making the law the instrument of such injustice. There is no want of persons willing to become administrators. The interests of estates should not be sacrificed that one man may administer many of them. The whole difficulty would have been obviated if Adolph Kehr, as soon as it was apparent that the interests of the estates of Jacob and Catherine Müller were hostile to each other, had yielded up the administration of one of them. The securities of Jacob Müller have just cause of complaint against such proceedings; and when there is no necessity for it, the law should not tolerate them. It was not in the power of the sureties of Jacob Müller to have had his administrator, Kehr, removed, that they might have had the benefit of a defence supported by such evidence as might have been in the hands of the administrator. The power in the court to compel a production of papers had nothing to do with the case. By his undue desire of administrationships, Kehr could not impose on the defendants any such burden, who had a right to all the aid in their defence that a lawful and faithful administrator of Müller could give them.

The case does not involve the question whether in this state an action can be brought against an heir on the bond of his ancestor before the administration is settled and the debts are paid. It is averred in the petition that the administration on the estate of Finche was closed; from which we infer there was no other debt than this, as there was no point made in relation to it in the court below.

The judgment is reversed and the cause remanded;

the other judges concur.


author: Napton, Judge,

text:
    Dennison, Appellant, v. Smith et al., Respondent.
    1. To enable a party to maintain an action of forcible entry and detainer it is not necessary that the entry should be with actual force; it is sufficient if the entry be made against the will of the party in actual lawful possession.

      Appeal from St. Louis Land Court.

      Cline & Jamison, for appellant.

      Shreve, for respondents.
   Napton, Judge,

delivered the opinion of the court.

The sixteenth section of the act concerning forcible entry and detainer declares that “ the complainant shall not be compelled to make further proof of the forcible entry and detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained or unlawfully detained the same.”

Where an entry is made upon land against the will of the party in actual lawful possession, the party from whom the possession is withheld is entitled to his action. No actual force is necessary to be proved. (Warren v. Ritter, 11 Mo. 356; Cathcart v. Walter, 14 Mo. 17.) The court instructed the jury that the plaintiff could not recover. We do not consider the testimony of a character that would justify such an instruction. There was certainly evidence to show an entry “with strong hand” — five or six men on horseback, armed with guns and pistols, approaching the house during the temporary absence of the occupant, and their appearance and manner being sufficiently “ threatening” to induce some laborers on the place in the employment of plaintiff to leave suddenly, in the midst of their days’ work, without asking any questions. True, no actual menaces were proved; none, it seems, were necessary. Their appearance and manner may have sufficiently indicated their purpose to render threats unnecessary. This was a matter for the jury.

We are unable to see why the conversation between plaintiff and defendant, occurring after the entry, was excluded. Something had been said on cross-examination about the plaintiff’s consent to this intrusion. This conversation might have fully explained the truth of this matter. Besides, the defendant’s admission would be evidence against him on other grounds.

The judgment is reversed and the cause remanded;

the other judges concur.


author: Richardson, Judge,

text:
    Schilling, Respondent, v. Speck, Appellant.
    1. Where it is sought to remit a portion of a judgment, a new judgment must he entered for the amount of the first less the sum remitted.

      Appeal from St. Louis Circuit Cowrt.

      Holmes and Romyn, for appellant.

      Kribben, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

There is no bill of exceptions in this case, and, as we can not see the evidence, instructions or motions of any kind, we can only notice such questions as arise on the record proper. It appears that the jury returned a verdict in favor of the plaintiff for seven hundred and fifty-two dollars and sixty-nine cents, for which sum judgment was immediately rendered. Several weeks afterwards, during the term, the following entry was made : “ Now at this day comes said plaintiff by his attorney and remits one hundred dollars of the judgment herein, and the court having duly heard and considered the motion for a, new trial herein, and being fully advised of and concerning the premises, doth consider and adjudge that said motion be overruled.” No other entry appears in the transcript after the judgment, except the one allowing an appeal.

It does not appear that the judgment was corrected after the remittitur, but it was allowed to stand for the full amount of -the verdict. It was the duty of the plaintiff to have seen that the judgment was properly entered, and for a sum not greater than he was entitled to ; and for this error the judgment of the circuit court will be reversed, and judgment will be rendered in this court for the amount the plaintiff was entitled to after the remittitur. (Johnson v. Robertson, 1 Mo. 615)

The other judges concur.


text:
    Barclay, Respondent, v. Globe Mutual Insurance Company, Appellant.
    1. In a suit against a corporation, a stockholder thereof is a competent witness in behalf of the corporation; he is not a person for whose immediate benefit the suit is defended, although, in ease of a deficiency of corporate property, his individual property would be liable to be taken on execution to double the amount of his stock.
    2. Quere, would he be a competent witness if the corporation should be shown to be insolvent 1

      Appeal from St. Louis Court of Common Pleas.

    This suit against the Globe Mutual Insurance Company was commenced March 27, 1855, The defendant, at the trial, called as a witness W. W. Greene, president of the Globe Mutual Insurance Company, the defendant, who, being examined on his voir dire, stated that he was a stockholder in said company. The court ruled that he was incompetent. It is deemed unnecessary to set forth the facts bearing upon the other questions discussed.

      Hudson & Thomas and Biddlecome, for appellant.
    I. Greene, although a stockholder, was a competent witness. He was not a person for whose immediate benefit the suit was defended. (York & Cumberland R. R. Co. y. Pratt, 40 Maine, 458 ; 1 Greenl. By. § 416 ; Washington Bank y. Palmer, 2 Sand., S. C. 686 ; N. York & Erie R. R. y. Cook, id. 732 ; Montgomery Bank y. Marsh, 3 Seld. 481.)

      S. T. & A. D. Glover, for respondent.
    I. Mr. Greene was an incompetent witness. The suit was defended for his immediate benefit. If no corporate property could be found, then his private property was liable to the execution. (R. C. 1845, p. 233, § 13; Bank of Ithica v. Bean, 2 Code Reporter, 133.) When the judgment in a cause binds the party so that an execution may issue against him without further judicial action, it would seem to fix an immediate benefit or interest in him to defeat the suit. If not, it would be difficult to conceive in what manner such benefit could arise. No owner of a steamboat has been allowed since the new practice act to testify on behalf of the boat; yet the steamboat is a person by our law and may be sued as such. (19 Mo. 73.)
   Scott, Judge,

delivered the opinion of the court.

This judgment will be reversed for the reason that the evidence of the president of the company, who was a stockholder, was excluded. A stockholder of a corporation, which is a defendant in an action, is not a person for whose immediate use such action is defended. Although the property of the witness was liable to an execution in the event of a want of corporate means to satisfy the judgment that might be recovered, yet, as the want of those means was not shown, the relation of the stockholder to the corporation was not variant from that of a stockholder in any corporation which was not subject to an execution, so far as this question is concerned. We express no opinion on the question of the competency of the witness had the insolvency of the company been proved. Under our statute, it has been held that a partner not a party to an action was a competent witness for the partner who was sued. (Weston v. Hunt, 19 Mo. 505.) So also, that a distributee was a competent witness for the administrator in prosecuting or defending a suit for or against an estate. (Stein v. Weidman’s Adm’r, 20 Mo. 17.) Is the stockholder of a corporation more interested than a partner in trade or a distributee ? The precise point involved in this suit has been determined by the court of appeals in New York. It was there held that a stockholder of a corporation is not a person for whose immediate benefit the suit is prosecuted in an action in which such corporation is plaintiff and in which such stockholder is not individually named as a party. (Montgomery Co. Bank v. Marsh, 3 Seld. 485.) This case cited and approved several preceding decisions of the question in the same way. These were all under a statute from which ours was copied.

Wo suppose that the defendant could not prove any fraud in the transaction unless it was set up as a defence to the action. But as the case will be remanded it may be as well to submit our present views in regard to that matter. If there was any written protest other than that recited in the agreement, it does not appear in the record. If there was none other, then the inquiry would be limited to the truth of the fact recited, because it would sufficiently appear that the parties compromised and settled upon the truth of that fact alone, disregarding all others as immaterial. Under the circumstances such a conclusion would not be unreasonable. But if there was a full protest made out stating all the circumstances of the loss, we are not now prepared to say that the word “ declaration” in the agreement would not refer to all the material facts set forth in the protest. The language of the agreement is not the said declaration in the protest, but the declaration in the said protest. In such case the portion of the declaration set out might have only been in tended for the identification of the instrument. But as the paper is not before us, if there is any such, we can give no authoritative interpretation of it.

Judge Napton concurring, the judgment will be reversed and the cause remanded; Judge Richardson not sitting.


text:
    Lawrence, Plaintiff in Error, v. Shreve, Defendant in Error.
    1. Where a cause is tried by a court sitting as a jury and the parties request a declaration of the law of the case, the plaintiff should hare an opportunity, after the court declares the law, to take a nonsuit.

      Error to St. Louis Law Commissioner'’s Court.

      Gray, for plaintiff in error.
    I. It is the right of the plaintiff to have the law declared. If the law as laid down by the court be such as, on the case made, would not entitle plaintiff to a judgment, it is his undoubted right to take a nonsuit. The plaintiff was deprived of this right by the action of the court. The plaintiff was waiting for the court to decide on the instructions in order to determine whether or not to submit the case on the facts or to take a nonsuit. The court should have granted the motion for a new trial.
    Shreve, for defendant in error.
    I. The court did not err in refusing a new trial.
   Napton, Judge,

delivered the opinion of the court.

We think the plaintiff should have been allowed to take a nonsuit in this case. The statute says : The plaintiff shall be allowed to dismiss his suit, or take a nonsuit, at any time before the same is finally submitted to the jury, or the court sitting as a jury, or to the court.” When a case is tried by a jury it has been the uniform construction of this law, in practice, to allow a party to get the opinion of the court upon the law of his case in the form of instructions and then withdraw his suit if that opinion is unfavorable. The same opportunity ought to bo afforded in cases where the court is permitted to decide the law and try the facts as a jury, if the parties request a declaration of the law from the court.

In this case the court took the question of law under advisement, and when the decision was made the whole case was decided together, and no opportunity given for a nonsuit. The instruction given for the defendant was merely an instruction upon the evidence that the plaintiff was not entitled to recover; but the character of the instruction can not vary the rights of the parties, and would rather seem to make it more imperative on the court to give the plaintiff an opportunity of determining whether he would proceed further with the case. The plaintiff can not insist upon immediate determination of the law asked for by the instructions offered; but if the court takes them under advisement, proceeding on with other business, it would seem to be reasonable, where no day is announced or by some rule of court established in which the decision will be made known, that the parties or their counsel should be informed when the court is ready to detei'mine the instructions. Any other practice would deprive plaintiff of the right given him by the statute to take a nonsuit at any time before the final submission of the case.

The judgment will be reversed, and the plaintiff has leave to enter a nonsuit;

the other judges concur.


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    Foster’s Administrator, Respondent, v. Rucker’s Executor, Appellant.
    1. Under the practice act of 1849, where a cause was taken by appeal from a county to a circuit court and was tried by the court without a jury, a finding of the facts was necessary.
    2. After an appeal is taken in a cause and before the transcript is filed in the appellate court, the cause must be regarded as one pending in the court to which the appeal is taken.

      Appeal from St. Louis Circuit Court.
    The facts are sufficiently set forth in the opinion of the court.

      Cline & Jamison and P. B. Garesché, for appellant,
    cited 16 Mo. 532; 1 Dev. 456 ; id. 310; 4 Dev. 512; 16 Ala. 343; 17 Ala. 726; 1 Ired. Eq. 423; 9 Ves. 98; 1 Eden, 223; 3 How., Miss., 394; 3 P. Wms, 197; 2 Atk. 206; 5 Johns. Oh. 196 ; Marmaduke v. McMaster, 51.
    Casselberry, for respondent.
   Scott, Judge,

delivered the opinion of the court.

In a trial by the court of an appeal from the county to the circuit court, it was the settled practice, under the act of 1849, for the court to file a finding of the facts as required by the act, when there was a trial by the court. (White v. Bennett’s Adm’r, 20 Mo. 262.)

The appeal in this case was granted on March 20th, 1856. The act which dispensed with the finding of facts went into effect from and after May 1st, 1856, but provided that it should not apply to actions and proceedings pending when it took effect. (R. C. 1855, p. 1293, sec. 44.) The transcript of the appeal was filed in the circuit court on the 1st of September, 1856. On these facts the question arises whether this was a case in which the law required a finding of the facts by the court which tried it. It was maintained for the plaintiff that as the statute concerning appeals from county courts (R. C. 1855, p. 175, § 7) provided that when the transcript and papers are filed in the circuit court the court shall be possessed of the cause, this can not be regarded as a cause pending in the circuit court on the 1st of May, 1856, when the repealing act took effect; that, inasmuch as the transcript was not filed until the 1st of September, 1856, there was no cause pending in the appellate court until that day. This court held, in the case of the State v. McO’Blenis, that after an appeal was taken in a cause the court from which the cause was appealed could take no step in it.' If, after an appeal is taken and before the transcript is filed in the appellate court, one of the parties dies, can not his representatives be substituted as a party to the suit as one pending in the circuit court ? In such an event would it be necessary to begin a new suit ? The terms of the statute are affirmative, and were not intended to impair the effect of the appeal in any manner.

We see no objection to the depositions. The fact that one of the parties to the suit died since they were taken can not affect them, as the suit survived the death.

No point was made relative to a demand in the court below, nor do we see any thing in the case which would warrant such an objection.

For the want of the finding of the facts the judgment will be reversed. As the witnesses contradicted each other, this was a fair case for a jury, who would determine their credibility. Without pretending to say on which side the justice of the case is, it is impossible to read the record without coming to the conclusion that the ends of justice will be promoted by a jury of twelve good and lawful men, whose province it is under our system of jurisprudence to weigh and settle disputed facts.

The other judges concurring, the judgment will be reversed and the cause remanded.


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    The State, on Relation of Brison, Respondent, v. Lingo, Appellant.
    1. A proceeding by information in the nature of a quo warranto is a civil and not-a criminal proceeding; consequently, in the county of St. Louis, the circuit court may entertain jurisdiction thereof.
    2. A power to remove from office necessarily includes a power to suspend from office.
    3. By the thirty-fifth subdivision of the second section of the third article of the amended charter of the city of St. Louis, of March 3, 1851, (Bev. Ord. 1856, p. 139,) the mayor and city council were empowered “to regulate the election of all the elective city officers, and provide for removing from office any person holding an office created by this act or by ordinance, not other wise provided for.” The seventh section of the fourth article of said charter contained the following provision: “ The mayor shall have power to nominate, and by and with the consent of the board of aldermen to appoint, all city officers not ordered by this act to be otherwise appointed; also, to suspend, and with the consent of the board of aldermen to remove, any city officer except those elected by the people.” (Rev. Ord. 1856, p. 142.) Held, that the city council might, by ordinance, confer upon the mayor the power to suspend a city officer elected by the people.

      Appeal from St. Louis Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Bland & Coleman, for appellant.
    I. The court erred in striking out the demurrer to the quo warranto. The demurrer was well taken and should have been considered and sustained.
    II. The court below, by overruling the motion for judgment, interposed by the relator to the plea of appellant, adjudged and determined judicially that such plea was a good answer to the proceedings on the part of the relator. That judgment and determination was in' force at the time of the rendition of the judgment of ouster and is still in force. The judgment of ouster was subsequent to and in direct conflict with the judgment rendered upon the motion for judgment. It should not be allowed to stand. (See McAdams v. Mc-Henry, 21 Mo. 418.)
   Richardson, Judge,

delivered the opinion of the court.

This proceeding was an information in the nature of a quo loarranto, prosecuted in the circuit court of St. Louis county by the circuit attorney of that circuit, in the name of the state, at the relation of Brison, against the defendant, for unlawfully exercising the office of superintendent of the work-house of the city of St. Louis. It was alleged that the defendant had been duly elected to said office, and the term for which he had been elected had not then expired, but that the mayor of the city had suspended him from office and appointed the relator in his stead pursuant to the provision of the charter and ordinances of the city; and that the defendant had refused to obey the order suspending him from office. The ordinances and acts of the mayor in the premises were set out at length.

It appears from the record that the defendant appeared and filed a demurrer to the information, to which there was a joinder, and the demurrer being heard by the court it was ordered that the same be stricken from the files, and leave was given defendant to plead. The defendant thereupon filed a special plea to the information and also an answer. The plaintiff then filed a motion for judgment notwithstanding the plea and answer, and the answer being withdrawn by the defendant the motion was overruled and leave given to the plaintiff to reply or demur. A demurrer was then put in to the plea, which was sustained and judgment given on the demurrer.

The first objection made is to the jurisdiction of the court. The statute of 1845, concerning writs of quo warranto, confers jurisdiction on the circuit courts ; but it is said that the jurisdiction in such cases is taken from the circuit court of this county by the act creating the criminal court, (R. C. 1845, p. 318, § 3,) which declares that “the circuit court of St. Louis shall not hereafter exercise original jurisdiction in any criminal case,” &c.; and the inquiry then arises, is this a criminal case ? Formerly a quo warranto information was a criminal proceeding, but for a great while it has been applied to the simple purpose of trying a civil right, and regarded as a remedy to try the right to an office; it is the nature of a civil proceeding, and is now so held, though criminal in some of its incidents. (4 Black. Com. 312; Cole on Informations, 413, 172; 54 Law Lib.; Commonwealth v. Brown, 1 Serg. & Raw. 385; Commercial Bank of Rodney v. State, 4 Smedes & M. 490; 2 Kydd on Corp. 439; State Bank v. State, 1 Blackf. 272; Commonwealth v. Brickett, 2 Va. cases, 51; Rex v. Francis, 2 T. R. 484; Angell on Corp. 686; People v. Richardson, 4 Cow. 102, note.)

We do not understand why the court, after considering the demurrer to the information, ordered it to be stricken from the files. There is no precedent for such practice ; but the defendant has not been injured by it, because the plaintiff’s demurrer to the plea, standing on the record, will reach back to any substantial defect in his own pleading, and the case can now be considered as if there was a demurrer in the record aimed directly at the information.

The demurrer to the information was properly overruled, and the charges which the mayor filed with the register as the groundwork of the order suspending the defendant were prima facie sufficient to authorize the order provided he had the legal power to make it.

The second section of the third article of the charter of 1851 contains an enumeration of the legislative power to be exercised by the mayor and city council, among which is the following: “ To regulate the election of all the elective city officers, and provide for removing from office any person holding an office created by this act, or by ordinance not otherwise provided for. (35th clause.) The power to remove necessarily includes the minor power to suspend ; and this clause of the charter is a warrant for the ordinance, subsequently passed, concerning the suspension and removal of city officers. (Rev. Ord. 1856, p. 580.) This ordinance provides that the mayor shall have power to suspend from office any officer who shall wilfully violate any of his official obligations. (Sec. 1.) Such suspension shall be effected by an order filed by the mayor with the register, accompanied with a statement of the charges upon which the same is founded; a copy of which order and charges shall be immediately delivered to the officer suspended; after which delivery such officer shall not exercise any of the duties of the office from which he shall have been suspended, under a penalty of not less than fifty dollars.” (Sec. 2.) “ Immediately upon the suspension of an officer the mayor shall appoint a person to fill the office for the time being.” (Sec. 3.) . It then directs that the mayor shall immediately lay the charges before the city council, whose duty it is to proceed, without unnecessary delay, to investigate the Gharges and to remove the officer if found guilty.

This ordinance conferred upon the mayor the power to suspend the defendant; and it seems that he exercised the power according to the forms of law. We ai-e referred to the seventh section of the fourth article of the charter, which it is insisted denies to the mayor the power to suspend an officer elected by the people. That section is as follows: The mayor shall have power to nominate, and, by and with the consent of the board of aldermen, to appoint all city officers not ordered by this act to be otherwise appointed; also, to suspend, and, with the consent of the board of aldermen, to remove any city officer, except those elected by the people,” &c. There is no limitation in this section on the power to suspend any officer, whether elected or appointed, and the words except those elected by the people,” qualify not the power to suspend, but the power to remove elective officers even with the concurrence or joint action of the board of aldermen. The city council is composed of two boards — the board of aldermen and the board of delegates ; and though, as to the officers appointed by the mayor and confirmed by the board of aldermen, the right of removing such resides in the powers that appoint and confirm, yet as to officers elected by the people, they can only be removed by the city council, which represents the whole body politic. It can not be maintained that officers elected by the people are beyond the power of removal at all, for such a construction of the seventh section of the fourth article would do away with the thirty-fifth clause of the second section of the third article, which expressly confers on the city council the power to provide by ordinance for removing from office any person holding an office created by the charter or by ordinances.

The ordinance made under the authority of the chai’ter regulated the manner of trying a suspended officer on charges preferred by the mayor, and the court had no right to investigate the truth of the charges made by the mayor in this case, or in anywise to usurp the functions of the city council. The court had only to see that the mayor had pursued his authority, and that the charges on their face warranted his order suspending the defendant, and the demurrer therefore was properly sustained to the plea which sought to change the venue of the trial and to put in issue the truth of the charges.

Judge Scott dissents on the question of the jurisdiction of the circuit court, but Judge Napton concurring, the judgment will be affirmed.


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    Biddle, Appellant, v. Vandeventer, Respondent.
    1. The rule of construction that deeds must be construed most strongly against those executing them, though applicable to indentures as well as to deeds poll, should not be invoked until all other rules fail; rules of construction are framed to be used as aids in arriving at the intention of the parties to the instrument to be construed; this intention, if consistent with the rules of law, must he carried out.

      2. A., on the first day of January, 1842, executed in favor of B. a lease of that date; the words of the lease indicating the duration of the term wore the following : “ To have and to hold the same unto him the said party of the second part, and to his executors, administrators and assigns, for and during the full and complete term of fifteen years from the date of these presents, to he complete and ended on the thirty-first day of December, in the year eighteen hundred and fifty-seven inclusive.” Held, that the term created by the lease was one for fifteen years and not for sixteen years.

      Appeal from St. Louis Land Court.

    This was an action of unlawful detainer. The only question for determination is whether a certain lease created a term for fifteen or sixteen years. The only clause of the lease throwing light upon this matter is the habendum clause, which is as follows: “ To have and to hold the same unto them, the said parties of the second part, and to their executors, administrators and assigns, for and during the full and complete term of fifteen years from the date of these presents, to be complete and ended on the thirty-first day of December in the year eighteen hundred and fifty-seven inclusive.”
    The court ruled in effect that this lease created a term for sixteen years and not for fifteen years by ruling that upon the case made in evidence the plaintiff was not entitled to recover, and judgment rendered for defendant.

      Picot and Gibson, for appellant.
    I. The rule that a grant is to be taken most strongly against the grantor does not apply to an indenture of lease as this is. (Leon. 246 ; Shep Touch. 115, top paging; 2 Hill. Abr. 825, § 12; 8 Mod. 312; 4 Cruise, 259, § 17.) The rule to find the intent is to give the most effect to those things about which there is the least liability to misstate. (1 G-reenl. Ev. 411; 17 Mass. 210; Jackson v. Loomis, 18 Johns. 87.) Falsa demonstratio non nocet. (7 Johns. 228 ; 4 Wend. 319; 1 Ired. 283; 10 Term. 180; 13 Mo. 505; Picot v. Page, ante, p. 398.) If both descriptions were equally natural and were repugnant, then the first is to be preferred. (2 Hill. Abr. 324; 4 Leon. 248 ; Hard. 94; Co. Litt. 38 ; 2 Ala. 86 ; Shep. Touch. 88.) The deed of defendant shows a contemporaneous exposition of the case in question.

      E. Bates, for respondent.
    I. The law (classing unlawful detainer with forcible entry and detainer) is highly penal, and should be construed strictly in favor of the defendant. The willful holding over is the gist of the offence, and he ought not to be penally liable if it be doubtful on the face of his lease whether or not he held over at all. He can not be said to hold over willfully, if he had reason to believe and did believe that his term was still existing. But he did not hold over. The term is not yet expired. Every lease for years must have a certain beginning and end. (2 Bl. Comm. 140; Co. Litt. 45, 66.) Here, both the beginning and the end are stated, and the erroneous calculation of the number of years between them can not shorten the term expressly declared. If the words used be in conflict, the grantee shall have the benefit of it. Every grant shall be taken most strongly against the grantor. (2 Bl. Com. 121.) Calls for known and permanent objects control calls for quantity and for the course and length of lines. If the words be repugnant, the most certain and specific shall override that which is indeterminate in itself and depends on calculation.
   Napton, Judge,

delivered the opinion of the court.

All the rules which have been established for the construction of deeds have been framed as aids in arriving at the intention of the parties, which, if it be consistent with the rules of law, must be carried out. If doubts are created by repug-nancy or ambiguity in the language, they must be resolved generally against the grantor, because (says Bacon) “ he is presumed to have received a valuable consideration for what he parts with.” Cruise says: “ The principle of self-interest will make men sufficiently careful not to prejudice themselves by using words of too extensive a meaning; and all manner of deceit is hereby avoided in deeds; for people would always affect ambiguous expressions if they were af-terwards at liberty to put their own construction on them.”

It is said in some treatises that this rule is confined to deeds poll, and does not extend to indentures. The former being executed by the grantor alone, the words used are his and not the words of the grantee, and shall therefore be taken most strongly against him; but in an indenture executed by both parties, the language of the deed is to be considered as the words of both parties. (4 Cruise Dig. p. 295; Touchstone, note, p. 88; Plow. 134; 1 Leon. 246.) This distinction is not noticed by many writers of reputation, and some judges speak of the rule in general terms without qualification, or only limiting it as applying more strongly to deeds poll, but not the less applicable to some extent to both kinds of deeds. (3 Bac. Abr. 393; Jackson v. Blodgett, 16 John. R. 178.) The rule is however, from its strictness and rigor, the last one to be resorted to, and not to be relied on until all other rules fail. (Bac. Abr. 3; Touchstone, p. 88, note.)

It will be apparent, on an inspection of the indenture sued on in this case, that no ambiguity occurs in the language. The difficulty grows out of a repugnancy in the two attempted descriptions of the term. It is first called a term for fifteen years, and then described by its beginning and termination as a term for sixteen years. This is not such a repugnancy as is referred to by law writers when they insist that ambiguities and repugnancies shall never be determined favorably to the grantor. The repugnancies spoken of are such as restrict or destroy the first general words of the grant. (3 Bac. Abr. 393.) The second description of this term does not destroy the first, nor restrict or limit it, but actually enlarges it.

The rule by which this case may be determined is that which authorizes us to disregard a false additional description of the thing granted, where the principal description is true. The only difficulty in the application of this rule is in sometimes determining which is the principal and which the additional description. If we perceive which idea predominates and the matter about which there is least liability to mistake, we must adhere to this as the thing granted, and reject the misdescription which follows. Generally and naturally the principal description will precede the subordinate one in a deed, although in the inversions to which our language is occasionally subjected this will not always happen. This rule does not conflict with another, which allows a grantor, after the use of general terms of grant, to restrict the grant by a particular description, the entire description being in such case reconcilable throughout, and therefore to be followed in all its modifications. (Conolly v. Vernon & Vyn, 5 East, 51.)

What then is the principal or prominent idea in the words of both parties to this lease, and concerning which there was least probability of mistake ? It would seem to be the number of years for which the lease was to run. When parties are in treaty for a lease of the character of the one in question, where buildings were to be erected by the lessee and a ground rent'paid, it would be natural for both parties to have prominently in view its duration, whether it was to be for five, ten, fifteen or twenty years. This would be the material thing to be fixed, and it was fixed in this case at fifteen years from the 1st January, 1842; but the scrivener for additional description undertook to say when the fifteen years would expire, and declared it would terminate on the 31st December, 1857. Here was a mistake in calculation, and it is quite easy to see how it occurred and why it was overlooked. Prom January 1st, 1842, to January 1st, 1857, are fifteen years, and so in all probability the calculation was made; but it occurring to the scrivener or the parties that it would be more proper to make the lease terminate the day before the first of January, 1857, instead of on that day, the change was made from January 1st to December 31st, the day previous, and the corresponding change of the year was neglected. In making a calculation of fifteen years from the 1st January, 1842, especially when the termination of the fifteen years was to be on a day different from the one at which it commenced, was a matter of caclulation in which the possibility of mistake is obvious enough, but it is not easy to see how the parties could be mistaken as to whether they intended the time to be for fifteen or sixteen years.

There are cases doubtless in which an application of this same rule would tend to apparently different results. Parties might have in contemplation some fixed point of time prominent in their minds, and the calculation of the intervening period be entirely subordinate ; as where a time was intended to terminate on a certain distant day, where it was known to both parties that the lessor’s interest in the premises ceased, or from some other cause the point of termination was a fixed landmark principally in the minds of the parties. In such eases a mistake in the calculation of the intervening time would be disregarded as the subordinate description of the term, and the fixed landmark be adhered to. But there is nothing to induce a belief in this case that there was any importance attached by either party to the 31st of December, 1847 — it was merely named as the day on which the term previously designated would expire ; and it was not supposed by either party that that day was sixteen years, instead of fifteen years, from the day of the commencement of the lease.

The other judges concurring, the judgment will be reversed and the cause remanded.


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    Ivory, Defendant in Error, v. Delore et al., Plaintiffs in Error.
    1. The first judgment in an action of partition is interlocutory: a writ of error will not lie thereto.
    2. In an action of partition, the plaintiff may, at any time before the cause is submitted to the court on the question of confirming the report of the commissioners, take a nonsuit.

      Error to St. Louis Land Court.

    This was an action for partition. The commissioners appointed to make partition made their report to the court. The plaintiff moved the court to dismiss the suit at his costs ; which motion the court granted, and the plaintiff accordingly took a nonsuit. The defendants resisted the action of the court in permitting plaintiff to take a nonsuit.
    Casselberry, for plaintiffs in error.
    I. Plaintiff could not, without the consent of the defendants, dismiss the cause after it had progressed so far. The defendants protested against the dismissal of the suit, and requested the court to go on and make partition according to the judgment ascertaining the rights of the parties. A writ of error will lie. There was a final judgment. The dismissal of the case was a final judgment. The order of the court overruling the motion to set aside the order of dismissal at least was a final judgment. The defendants had a right to partition.
    P. B. Garesché, for defendant in error.
    I. The plaintiff had the right to dismiss the suit at the stage of the proceedings at which such leave was granted. (2 Sellon’s Prac. 218, 219 ; Allnott on Part. 78; R. C. 1845, p. 901; 4 Bac. Abr. 505 ; 25 Mo. 349; 1 Barb. Oh. Prac. 228 ; 1 Dickens, 281.)
   Richardson, Judge,

delivered the opinion of the court.

In a suit for partition there are two judgments, and as the last, which is given on the coming in of the report of commissioners, is the principal and the final judgment, the first, quod partitio fiat, is only interlocutory, upon which a writ of error will not lie ; and the reason given by Bacon for this is that before final judgment the plaintiff may be nonsuited. (Stephens v. Hume, 25 Mo. 349; Allnott on Part. 27; 4 Bac. Abr. 505.) And no doubt when this case was here before on another branch of it, the court overlooked the fact that a final judgment had not been rendered.

Under our statute, a plaintiff can not take a voluntary nonsuit after the cause is finally submitted to the court or jury ; and therefore the petitioner in an action for partition can not discontinue after the cause is 'submitted on the question of confirming the report; but, until that stage of the proceeding is reached, we do not see how the plaintiff can be denied, consistently with established rules of law, the right to dismiss.

This is a hard case and it seems unreasonable after it had cost so much time and trouble, and the proceedings had almost ripened into a final judgment, that the plaintiff, without any apparent cause, should be permitted to dismiss the suit; but the rule is too well settled to be disturbed, and wo have no authority to make exceptions to it in order to save hard cases.

If there is a struggle between the parties as to whether the land shall be divided or sold, and the difficulty in dividing results from the number of parties in interest, it may perhaps be obviated by having the shares of the defendants or a portion of them set off together in one parcel.

The other judges concurring, the judgment will be affirmed.


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    Durham, Appellant, v. Durham, Respondent.
    1. It is not necessary, in every case where an issue is raised as to the freedom . or slavery of a person of color, that his freedom should be proved by showing a strict compliance with the statutory requirements in respect to emancipation. In suits other than those for freedom, admission of the former owner that he had set the alleged slave free, and even presumptions, may be resorted to to establish the alleged freedom.

      Appeal from St. Louis Land Court.

    This was an action for partition of certain premises in the city of St. Louis. The petition asserts a common title in said premises in plaintiff, Hilary Durham [alias Dearing] and in the defendant, his mother, Henny Durham. Both plaintiff and defendant are free persons of color. Plaintiff claims title in himself and asserts the same in defendant, by descent, through Matilda Durham, a sister of plaintiff and daughter of defendant. Defendant, in her answer denies that said Matilda died seized of the premises, and alleges that said Matilda was her slave. At the trial a deed of conveyance to said Matilda from one Buckingham was introduced. Defendant introduced evidence showing that said Matilda had been a slave and had been bought by her mother. Plaintiff, to prove an emancipation of said Matilda by her mother, introduced one Smith as a witness, who testified that the defendant “ had told him that Matilda Bartlett had been a slave, but she, defendant, had bought her and set her free.” This was before the sale by Buckingham to said Matilda. It appeared also from the testimony of this witness, that he had paid rent of the premises to defendant as agent for her daughter Matilda. This was the only evidence tending to show an act of emancipation by defendant. The court, at the instance of plaintiff, gave the following instructions: “ 1. If the jury believe from the evidence that Matilda was a slave of defendant, but also find from the evidence that she was manumitted by defendant, they will find for the plaintiff. 2. If the jury believe from the evidence that Matilda Bartlett was, at the time of the execution of the deed from Edward M. Buckingham and wife to her, a free woman, they will find for the plaintiff.”
    At the defendant’s instance, the court gave the following instructions : “ 1. If the jury believe from the evidence that Matilda Bartlett was ever the slave of the defendant, Henny Dearing, at any time, this condition of slavery is presumed to continue to exist, unless' the plaintiff proves that the said Matilda acquired her freedom from the said Henny Dearing, the defendant, by emancipation, or from some one who held the said Matilda from the said Henny. 2. The admission by the defendant, Henny, to the witness, Benjamin W. Smith, that slie, Henny, bad set Matilda Bartlett free, is no proof of Matilda’s freedom, bnt said fact must be proven by an act of a court of competent jurisdiction emancipating the said Matilda according to the statute laws of tbis state, if tbe jury should believe said emancipation was done in tbis state.”
    The jury found for defendant.

      A. J. P. Garesché for appellant.
    I. Emancipation must not necessarily be proved by a record. There may be a presumption that the law has been complied with. A devise to a slave entitles him to freedom by implication. (Legrand v. Donnell, 2 Pet. 670 ; see 2 Pet. 191; Burke v. Negro Joe, 6 Gill & Jo. 186; Anderson v. Garnett, 9 Gill, 135; 9 Ired. 168 ; Nancy v. Snell, 6 Dana, 155 ; Naylor v. Hays, 7 B. Mon. 478 ; Henderson v. Jason, 9 Gill, 483.) An aot of emancipation may be presumed although it can be made only by an act of the legislature. (Miller’s Adm’r v. Reigne, 2 Hill., S. 0., 592 ; 2 Strobh. 536 ; see also generally Ralph v. Duncan, 3 Mo. 94, 194; Renick v. Cliloe, 7 Mo. 197 ; 9 Mo. 170 ; Charlotte v. Chouteau, 25 Mo. 465.) Besides, a slave can not be held by a free person of color. (Davis v. Haynes, 18 Mo. 249 ; Bryan v. Walton, 14 Georg. 197.) The deed or bill of sale of the child to its mother would operate as the extinguishment of the child’s servitude. (See Tudal v. Hudson, 2 Harring. 441; Wilson v. Waples, 3 Harring. 270.) At least as against the mother in this case there is a presumption of the child’s freedom.

      H. N. Dedman, for respondent.
   Scott, Judge,

delivered the opinion of the court.

It is generally true that a slave can only be manumitted by pursuing the course adopted by the statute. If one is detained in slavery, and claims his freedom on the ground of his having been manumitted, that act should be proved with the necessary formalities in order to establish his right to freedom. It is not necessary here to go into an examination of the circumstances under which a deed of emancipation will he presumed. But the question as to the status of colored persons arises in various other suits than in those for freedom. We have free colored persons among us. They are subject to the laws, and in return are entitled to their protection. Everybody knows that they are free and so regards them. They acquire property and contract as free persons. Under such circumstances no policy is subserved in suffering those who deal with them, when a resort to litigation becomes necessary, to exact strict proof that they have been freed in conformity to law. In many of the states, although the statutes point out a particular mode by which emancipation shall be effected, yet the courts have allowed slaves to be manumitted by implication and their right to freedom to be sustained by presuming a deed of emancipation. The case of Burke v. Negro Joe, 6 Gill & John. 138, was one for freedom. There, it was insisted for the master that a negro once a slave can make out his right to freedom against his former owner only by showing a manumission by deed, or last will and testament, made according to the acts of assembly in such cases provided. The court held that the general doctrine of presumption, as applied to patents, deeds, &c., is too well established now to require an examination, although directed by law to be recorded within a limited time, and to have no legal effect unless such requisites are complied with ; and that there was no reason why the indulgence of the presumption should not be extended to deeds of manumission. (Henderson v. Jason, 9 Gill, 483.) In the case of Legrand v. Donnell, 2 Pet. 664, arising under the laws of Maryland, the supreme court held that a devise of property to a slave by his master entitled a slave to his freedom by necessary implication. (Hall v. Mullen, 5 Har. & John. 184.) In North Carolina it was necessary to petition the courts for leave to emancipate slaves. Leave was granted upon filing the necessary bond. A bond never was filed; after a great lapse of time it was held that a bond might be presumed. (Cully v. Jones, 8 Iredell, 168.) In the state of South Carolina, in the case of Miller v. Reyne, 2 Hill, 592, it was held that a deed of manumission might be presumed.

The foregoing cases have been cited to show that the rule is not universal, that, where the law points out a mode by which emancipation shall be effected, that proof of freedom can be established in no other way — a rule which, if inflexible, would prove a great hardship in many cases, when we consider that it is a legal presumption that every negro is a slave when his condition or state is the subject of inquiry.

Under the circumstances of this case the court was not warranted in giving the instructions asked by the defendant. The case should have gone to the jury on the instructions given at the instance of the plaintiff.

The judgment is reversed and the cause remanded;

Judge Richardson concurring; Judge Napton concurs in reversing.


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    Berghoff, Plaintiff in Error, v. Heckwolf et al., Defendants in Error.
    1. In an action for the possession of personal property under article 8 of the practice act of 1819 (Sess. Acts, 1849, p. 82), the plaintiff can not, by taking a nonsuit, prevent a judgment being rendered against him for a return of the property, or for damages.
    2. If the plaintiff should dismiss Ms suit, and the defendant should omit to have the damages assessed or judgment rendered for the return of the property, the defendant would have a complete remedy by action on the bond given by plaintiff under section 3 of article 8 of the practice act of 1849.
    3. The condition in such a bond to prosecute the action is a condition to prosecute it with effect, that is, with success; if the plaintiff voluntarily takes a nonsuit, this will amount to a breach of such condition, and the ob-ligee may in an action on the bond recover full damages, within the limit of the penalty, without first obtaining a judgment for the return of the property or for damages.
    4. In actions in the St. Louis law commissioner’s court for the possession of personal property, under article 8 of the practice act of 1849, although the court could not entertain jurisdiction where the value of the property claimed exceed $150, yet, if the plaintiff failed to prosecute his action, the law commissioner’s court might have rendered judgment against the plaintiff for an amount exceeding $150 and within the penalty of the bond given by himself.

      Error to St. Louis Court of Common Pleas.

    This was an. action on a bond executed by defendants in a suit, under article 8 of the practice act of 1849, for the possession of a horse. Heckwolf and Kuhn, two of the defendants in the present suit, sued Berghoff for the possession of said bond. They gave the customary bond required by section 3 of said article 8, and the horse was given into their possession. When the cause came on for trial said plaintiffs voluntarily took a nonsuit. No judgment for the return of the property apjjears to have been rendered, and no damages for the detention of the horse, &c., awarded to defendant Berg-hoff. The breach assigned in the present action is that said Heckwolff and Kuhn did not prosecute said action. That portion of the petition, in which the plaintiff set forth the extent and nature of the damage received by him, was stricken out on motion of defendants. The plaintiff thereupon took a nonsuit, with leave, &c.

      H. N. Hart, for plaintiff in error.

      S. A. Holmes, Romyn, and Krum & Harding, for defendants in error.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff in a replevin suit can not, by a discontinuance of the action, or by suffering a nonsuit, prevent a judgment being rendered against him for damages or for the return of the property. (3 Black. Com. 149; Smith v. Winston, 10 Mo. 299; Collins v. Hough, 26 Mo. 149.) And it was decided in the case last cited that the 8th and 9th sections of the replevin act of 1845, as against the plaintiff, remained in force as a part of the machinery necessary for perfecting proceedings commenced under the act of 1849.

If, however, the plaintiff dismisses his suit and the defendant omits to have the damages assessed or judgment given for the return of the property, the defendant ought not on that account to be denied a full right of action and a complete remedy on the bond.

The conditions of the bond to be executed by the plaintiff in actions of replevin, by the third section of the eighth article of the act of 1849, are “ for the prosecution of the action, for the return of the property if return thereof be adjudged, and for the payment to him of such sum as may for any cause growing out of the order in the cause be recovered against the plaintiff.” If return of the property is adjudged, or damages are recovered, and the plaintiff fails to satisfy the judgment, in declaring on the bond breaches of course would be assigned on one or both of the two last conditions. But if the defendant prevails by the nonsuit of the plaintiff, and no judgment is given for damages, or for the return of the property, as the two last conditions would not be broken, the defendant would be without a complete remedy, by the default of the plaintiff, unless the failure to prosecute the action to a successful termination is a forfeiture of the bond. The plaintiff ought not, by dismissing his suit, to put the defendant in a worse condition than he was before, or gain for himself the advantage of escaping with a judgment for only nominal damages on the broken condition “ for the prosecution of the action.” The condition to prosecute the action means to prosecute it with effect, which is an equivr alent term for prosecuting with success; and as the conditions of the bond are independent, a breach of either of them will occasion a forfeiture ; and on the broken condition for the prosecution of the action the obligee may recover full damages within the limit of the penalty, without first obtaining a judgment de retorno habendo or for damages. (Norris on Replevin, 190; Brown v. Parker, 5 Blackf. 291; Rowan v. Strattan, 2 Bibb. 199; Gibbs v. Bartlett, 2 Watts. & Serg. 29; Waterman v. Yea, 2 Wilson, 42; Perreau v. Beran, 5 Barn. & Cres. 284.)

The bond prescribed by the British statutes contains but two conditions, viz., for the prosecution of the suit with effect, and for the return of the property replevied in case a return be awarded. The replevin bonds taken under the statutes of Indiana, Kentucky and Pennsylvania are to the same effect; and our bonds are substantially like theirs with the addition of another condition. Holroyd, justice, observed, in Perreau v. Beran, that “ this is a case in which the bond was taken pursuant to the statute II. G. 2, c, 19, § 23, and conditioned, not merely for making such return if it should be adjudged, but also for prosecuting the suit with effect; and the condition of the bond is broken and the bond forfeited, ¡as well by not prosecuting the suit with effect, as by a default of making a return of the distress on such return being adjudged, each part of the condition being independent of the other, and the bond forfeited by a failure in either. The failure of prosecuting the suit with success is, we think, a failure of prosecuting the same with effect.”

The conditions prescribed by the statute (2 N. C. 1855, p. 1288) to a recognizance for an appeal are, “ that the appellant will prosecute his appeal with due diligence to a decision in the supreme court, and shall perform such judgment as shall be given by the supreme court, or such as the supreme court may direct the circuit court to give ; and if the judgment of such court, or any part thereof, be affirmed, that he will comply with and perform the same so far as it may be affirmed, and will pay all damages and costs which may be awarded against the appellant by the supreme court.” Now it often occurs that appeals are dismissed in this court so that no judgment is given here,- nor any directed to be given by the circuit court; nor is the judgment affirmed; and in such cases the only breach that could be assigned would be for not prosecuting the appeal with due diligence; and to hold that for the breach of this condition merely nominal damages can be recovered, would not only deprive the appellee of any substantial security by the recognizance, but would open the door to a system of fraud and perjury that would invite appeals only for delay to be dismissed when reached in their order on a crowded docket.

The defendant in the replevin suit in the law commissioner’s court might have had his damages assessed after the suit was discontinued by the plaintiff; for, although the nonsuit ended the controversy as to the title to the property in dispute, the case remained in court until its incidents were determined ; and the plaintiff is mistaken in supposing that he could not have recovered damages for a greater sum than one hundred and fifty dollars; for as the law commissioner has “jurisdiction in all actions for the claim and delivery of personal property, when the value of the same shall not exceed one hundred and fifty dollars,” the necessary incident attaches to his jurisdiction, when the defendant prevails, of rendering such judgment as he may be entitled to, though the amount may exceed that sum.

The other judges concurring, the judgment will be reversed and the cause remanded.


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    The State, Respondent, v. Wightman, Appellant.
    1. An acquittal on an indictment for a felonious assault will not bar a prosecution, before a justice of the peace, for a common assault.
    2. Where, however, the complaint made before the justice of the peace charges an indictable offence above the grade of an assault of which the justice has jurisdiction, an acquittal upon an indictment for the same felony-described in the complaint or affidavit will be a bar to a further prosecution on such complaint.

      Appeal from St. Louis Criminal Court.

    This was a prosecution before a justice of the peace, for an assault and battery. The following is the complaint upon which the proceeding was based: “ State of Missouri, county of St. Louis, ss. Personally appeared before me, Frederick Flach, a justice of the peace within and for the county aforesaid, Werner Etling, who, after being duly sworn, says, that one T. F. Wightman, on or about the sixth day of June, A. D. 1856, at the county aforesaid, did commit an assault and battery upon his person, by stabbing him with a knife or dagger on his forehead, thereby inflicting a wound and causing the blood to run, and also threatening to stab his father, Christian Etling, without just cause ; and this affiant further saith that the said T. F. Wightman has not to his knowledge or belief been arrested, held to bail, or otherwise dealt with for the said assault; and further saith not. ¡^Signed] Werner Etling. Sworn to and subscribed,” &c.
    The defendant was tried before the justice and was convicted and fined one hundred dollars. He appealed to the St. Louis criminal court. The grand jury afterwards indicted him for a felonious assault, with intent to kill. He was tried upon this indictment and acquitted. The assault charged was the same for which this prosecution was instituted. He then pleaded this acquittal in bar of the present proceeding. To this plea the State demurred. The court sustained the demurrer. The oause was then tried by the court and defendant was fined fifty dollars.

      Cline & Jamison, for appellant.

      Mauro, (circuit attorney,) for the State.
    I. The court did not err in sustaining the demurrer to the plea in bar. It did not allege the offence to be one and the same, and not other and different. The offence must be identical, not only in point of fact but of law. An assault and battery is not an indictable offence. (R. C. 1855, p. 977.) Consequently, under an indictment for an assault with a felonious intent, the defendant could not be convicted of a simple assault and battery. Unless the one offence is clearly comprehended in the other, the plea is not good. (2 Leach, 717 ; 9 East, 437; 12 Pick. 496.) A previous acquittal for felony will not be a bar to a subsequent prosecution for a misdemeanor. (12 East, 415 ; 7 S. & R. 423 ; 1 Black. 37 ; 7 Whart. Am. C. L. 255.)
   Richardson, Judge,

delivered the opinion of the court.

An acquittal on an indictment for a felonious assault will not bar a prosecution for a common assault and battery before a justice of the peace, because the defendant, under the indictment, could not be convicted of the minor offence. But in this case the affidavit made before the justice charged an indictable offence above the grade of an assault of which he had jurisdiction ; and as the defendant was subsequently indicted and acquitted for the same felony described in the affidavit, the plea of autrefois acquit presented a bar to any further prosecution on the proceedings before the justice. The justice had no jurisdiction of the case.

The other judges concurring, the judgment will be reversed.


text:
    Armstrong, Appellant, v. Darby, Respondent.
    1. The statutory covenant for further assurances implied in the words “ grant, bargain and sell,” embraces such encumbrances only as the vendor has control of; where the defect in the title can not be supplied by the vendor — as where there is an outstanding mortgage created by his grantor — such vendor can not be made liable on his covenant for further assurance.

      Appeal from St. Louis Land Court.

    This was an action to redover damages for an alleged breach of a covenant contained in a deed from John E. Darby, defendant,- to the plaintiff, D. H. Armstrong, dated July 16, 1845. The petition set forth the deed from Darby in hose verba, whereby, in consideration of $1200, he did “ grant, bargain, sell and convey” to Armstrong certain real estate in St. Louis county. The petition alleges the payment of the consideration money and delivery of the deed, and that Armstrong immediately went into possession under said deed of the premises conveyed thereby. The petition also alleges that by reason of the words “ grant, bargain and sell,” contained in said deed, and by force of the statute in such case provided, the defendant, among other undertakings in and by his said deed, covenanted to and with the plaintiff that he, the said defendant, would at any and all times thereafter, at the request of the plaintiff, and at the cost of the defendant, make and execute any and every other deed or assurance in the law for the more effectual confirming the premises and the conveyance of the said land in said deed described to the plaintiff that he should or might devise, advise or require; and that he, the defendant, would remove and pay off and discharge any encumbrance or encumbrances on said land whenever requested or required by the plaintiff so to do. The petition also states an encumbrance upon the property— being a deed of trust or mortgage duly recorded, made by Darby’s grantor, to secure a debt, which existed and was not paid off or satisfied at the time Darby made his said deed to Armstrong. The petition also states that judicial proceedings were instituted to foreclose said mortgage, to which both Darby and Armstrong were made parties, and which resulted in a judgment of foreclosure and order of sale of the premises to satisfy the debt; that defendant was requested by plaintiff to pay off and discharge said encumbrance, which defendant neglected and refused to do, and that the plaintiff was forced and obliged to pay off and discharge, and he did pay off and discharge the same in order to protect his title and possession.
    The defendant demurred to this petition. The court sustained the demurrer.

      Krum & Harding and B. A. Hill, for appellant.
    I. The word “ further assurances” in the statute, in their technical sense, as well as by their general meaning, are sufficiently comprehensive to include a covenant on the part of the grantor to indemnify and save harmless the grantee in the deed against any encumbrance on the land at the time of making the deed. This is the gist of the undertaking of Darby as stated in the petition; for a covenant to procure a release or discharge of an existing encumbrance practically is nothing but a covenant of indemnity against, as much so as a covenant of warranty is a covenant for quiet enjoyment. (2 Black. Com. 294 ; Platt on Covenants, 341; 6 Anne, ch. 35, sec. 30 ; Geyer’s Dig. 127 ; B. C. 1825, p. 217 ; King v. Jones, 5 Taunt. 414, 427.) It is clear that Darby undertook to convey a good title; be undertook to confirm the enjoyment of the premises to plaintiff. He covenanted to do “ all further acts,” &c., that should be necessary and practicable in order to accomplish this end. Has he performed his undertaking ? The removal of the encumbrance in question was a necessary act to be performed to prevent the appellant from being disturbed in his possession and enjoyment. (13 N. H. 167.) Every undertaking expressed in the forms generally used for covenants of further assurance is contemplated and understood to be included in the respondent’s obligation in the deed in question ; he was, consequently, in law and duty bound on request of his grantee to procure the release of the encumbranoe stated in the petition. (See Collier v. Gamble, 10 Mo. 467 ; id. 460 ; Dickson v. Desire’s adm’r, 23 Mo. 161.) The covenants set out in the petition being contained in the deed, the breaches are well stated.
    Gantt, for respondent.
    I. There was no breach of the covenant of further assurance. When a man covenants for further assurance he covenants to give such other deeds or to go through such other forms as will vest in the covenantee all such title as may be in him at the time of the original conveyance or as may af-terwards come to him; and it would seem that if by levying a fine or suffering a recovery he can convey or effect the conveyance of an interest outstanding in his wife, he is by this .covenant bound to do it. But this is the extent of his liability under the covenant; for he is not bound to suffer a recovery which may bind his issue in tail or him in remainder. (See Platt on Covenants, 344.) The remark made by Heath, justice, in King v. Jones, 5 Taunt. 427, was merely obiter. It does not appear in the report of the same case in 1 Marsh. 107. But it is plain that the judge must have meant such judgments or encumbrances only as were held by the covenantor, and which therefore he could control and release by deed. He could not be compelled to buy in an encumbrance or outstanding title by virtue of this covenant. (Platt on Cov. 348; Taylor v. Debar, 1 Ch. Cas. 274 ; 2 Sugd. on Vend. 766 ; Smith v. Earl of Jersey, 2 Brod. & Bing. 598, 611; Howard v. Ducane, 1 Turn. & Bus. 86 ; 3 Russ. 432.) The covenant described in the petition is not the covenant for further assurance; nor is any breach of the covenant for further assurance shown in the petition.
   Napton, Judge,

delivered the opinion of the court.

The question in this case is, whether our statutory covenant for further assurance obliges the vendor to remove an outstanding encumbrance. This covenant is substantially a covenant that the vendor will, at the request and cost of the vendee, perform all “ acts, deeds, conveyances and assurances,” either by fine, recovery or other form of assurance, which may be wanting to the confirmation of the vendee’s title. (Platt on Covenant, p. 341; Rawle, 203.) In King v. Jones, 4 Taunt. 418, Mr. Justice Heath said: “ Under this covenant the heir might call for further assurances, even to levy a fine ; he certainly might have called for the removal of a judgment or other encumbrance.” The commentators seem to have adopted this observation in King v. Jones. Platt says : “ The levying a fine is included under a covenant to do all lawful and reasonable acts for further assurance. The removal of a judgment or other encumbrance may likewise be called for.” (Platt on Cov. 344.) Rawle says: “In considering what acts may be reasonably required under this covenant, the purchaser may, as of course, require a fine to be levied, or a judgment or other encumbrance to removed.” Sugden says, “ Under a covenant for further assurance, a purchaser may of course require the removal of a judgment or other encumbrance.”

All these writers refer to King v. Jones as the authority upon which these remarks are based. It is further stated by Platt in his treatise, that this covenant operates as well to secure the performance of all acts for supplying any defect in the title of the vendor as to remove all objections to the sufficiency and security of the instrument of conveyance to the vendee. Such language as this is very comprehensive. Sir Edward Sugden says, in the same chapter we have quoted from above, in speaking of the covenant for further assurance, “ If the title prove bad, and the defect can be supplied by the vendor, the purchaser may file a bill in equity for a specific performance of the covenant for further assurance ; and a vendor who has sold a bad title will, under a covenant for further assurance, be compellable to convey any title which he may have acquired since the conveyance, although he actually purchased such title for a valuable consideration.” This expression of Sugden, to which he gives stress by italicising the words, may furnish an explanation to Mr. Justice Heath’s declaration of the law in King v. Jones, and which has been adopted without explanation by the text writers. If the defect in the vendor’s title can be supplied by a conveyance from him, the covenant for further assurance would clearly protect the vendee. But if the covenant for further assurance, as intimated by Platt, applies to any defect of title in the vendor, whether such defect can be supplied by the vendor or not, it is greatly more comprehensive than any other covenant for title, and may be said to render most of them totally superfluous. Why insert a covenant against encumbrances, if the covenant for further assurance requires the vendor to buy up an outstanding mortgage or judgment and convey to the purchaser ? Of what avail is the covenant of indefeasible seizin, if all encumbrances must be removed under the convenant for further assurance ?

The protection furnished a purchaser by the covenants of seizin and against encumbrances are known to be imperfect, and insufficient in many cases to secure him against the actual damage resulting from their breach, by reason of the restrictions which courts have imposed upon the measure of damages. Why should these covenants ever have been resorted to, if the covenant for further assurance would furnish an equally satisfactory remedy at law for its breach and a greatly more efficient protection in equity by an action for its specific performance ? The doctrine of Mr. Justice Heath and the writers who have followed him must be understood in a qualified sense to reconcile it with the practice and understanding of the profession. The judgments and other encumbrances to which they allude must be understood to be such as the vendor has control of.

The judgment of the land court is affirmed;

the other judges concurring.


text:
    Mooney, Respondent, v. Steamboat Navigator, Appellant.
    1. A judgment rendered by a justice of the peace of St. Louis county against a steamboat may be certified by such justice, under section 32 of the act concerning boats and vessels (R. C. 1855, p. 311), to the clerk of the court of common pleas of said county, and may be enforced as other judgments rendered against boats and vessels in said common pleas court, although the same had not been certified to the clerk of the circuit court.

      Appeal from St. Louis Court of Common Pleas.

    The steamboat Navigator was seized and sold, in a proceeding in the St. Louis court of common pleas, under the boat and vessel act. Publication was made, in accordance with the requirements of the statute, to all creditors having claims against said steamboat to file and prove their demands in said court of common pleas. On the day appointed for establishing the validity of the respective lien demands against the said boat, John Mooney presented a transcript of a judgment rendered against the Navigator by Philip McDonald, a justice of the peace of St. Louis county. No transcript of this judgment had been certified to the clerk of the circuit court. One of the creditors of the boat, in its behalf, objected to receiving said transcript in evidence. The court overruled the objection and allowed the demand evidenced by said judgment.

      H. N. Hart, for appellant.
   Napton, Judge,

delivered the opinion of the court.

It is claimed in this case that a transcript of the judgment, obtained by Mooney before justice McDonald, should have been certified to the clerk of the circuit court, in order to its continuance as a lien and its allowance in the distribution of the proceeds of the sale made hy order of the common pleas. This claim is based upon the 32d section of the law concerning boats and vessels in the revised code of 1855. That section provides that judgments before justices of the peace shall be certified to the clerk of the circuit court and be there enforced as other judgments obtained in that court. The third section of this law provides that these suits against boats and vessels may be commenced in the circuit courts throughout the state, but in St. Louis county the court of common pleas is also invested with this jurisdiction. The manifest intent of the 8 2d section is to require the transcript of the judgment before the justice to be filed in the court where the final distribution of the assets is to be made. The circuit court is mentioned alone, because, throughout the state (except in St. Louis), that court alone had jurisdiction ; but, as a previous section of the act had already invested the court of common pleas in St. Louis with the same jurisdiction which the circuit courts throughout the state had, the section must be understood as embracing both tribunals here.

The other judges concurring, the judgment is affirmed.