text:
    Delassus & Delassus, Appellants, vs. Poston et al., Respondents.
    X. A. purchased at an administration sale of the property of B. a tract of land subject to the lien of C. as vendor, for the purchase money. Held, in a suit by C. against A. to enforce the lien in which it was decreed that the-land be sold, and the proceeds applied to the payment of the unpaid purchase money, that it was erroneous to decree that out of' such proceeds A-.. should first be paid the amount paid by him at the administration sale.

      Appeal from St. Francois Circuit Court.

    The facts of this case sufficiently appear in the opinion of the court and the statement of the case as reported 19 Mo. Rep. 425.

      J. W. Noell, for appellants.

      M. Frissell, for respondents.
   Ryland, Judge,

delivered the opinion of the court.

This case was heretofore brought by the present appellees into this court as appellants against the new appellants, who were then appellees, and is reported in 19 Mo. Rep. 425. The judgment below was then affirmed. But, in the opinion of this court, then delivered, this court said : “ The judgment or decree in this case requires that out of the sale which is ordered to be made, there shall be paid to the defendants the sum which they paid for their purchase at the administrator’s sale, with interest thereon. This judgment is not appealed from by the plaintiffs, and therefore we cannot correct an error made in favor of the defendants. If we could, it is certain that the defendants would not be allowed to speculate upon terms of such safety as the decree permits. The sum they paid belongs to the representatives of Hoy, for the right of Hoy, which the defendants purchased, and under that purchase they are entitled to the surplus which the land may produce after satisfying the claim of the plaintiffs. But the consideration of their purchase should be distributed among Hoy’s representatives. If the land does not satisfy the claim of the plaintiffs, then the speculation of the defendants should produce a loss to them of the amount they have paid for their purchase of Hoy’s interest. But as there is no appeal before us, in which complaint is made of this part of the decree, we cannot reverse so much as we hold to have been erroneously in favor of the defendants.”

Afterwards, upon application made to this court, an appeal was, by its order, allowed to the plaintiffs, and they now bring before this court the present appeal, and assign, for error, the decree of the court below, or, rather so much of it as orders and directs the sum of money and interest thereon to be'repaid to the defendants, which they paid for the land at the administrator’s sale. We consider the opinion heretofore made, a part of which is copied above, as settling this matter. That part of the decree must be reversed.

It was a risking bargain on the part of the defendants. They have no right to expect that their purchase money should be repaid to them. “ They did not speculate upon terms of such safety.” That part of the decree aforesaid is, with the concurrence of the other judges, reversed.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Hornsey & Wife, Respondents, vs. Casey, Appellant.
    1. Under an election made by a widow, under the 3d and 6th sections of the dower act (R. C. 1845, p. 430) to take “ one half of the real and personal estate belonging to the (her) husband at the time of his death, absolutely,” held that she can take no interest in any property conveyed away by the husband in his lifetime. If she have not relinquished her dower in real estate conveyed away by her husbsnd during his lifetime, she must claim her dower under the 1st section of the dower act.
    2. Quere, whether an election made by a widow to take under the 3d section of the dower act, will operate as a bar to dower under the 1st section of the same act.

      Appeal from Washington Circuit Court.

    This case was decided on a demurrer to the petition. The petition set forth that the plaintiff, Clarissa Hornsey, now wife of R. Hornsey, was formerly the wife of one G. Nuckolls, since deceased; that she had been divorced from the said Nuckolls, she being declared by the court to be the innocent and injured party, and the said Nuckolls the guilty party; that the said Nuckolls died July, 1854, without any child or other descendant in being capable of inheriting, leaving the plaintiff, now Clarissa Hornsey, him surviving ; that on the 6th of November, 1854, the said Clarissa and her husband, Robert Horn* sey, also plaintiff in this suit, made their certain deed of election, &c., &c., by which she elected to take dower under the provisions of the 3d section of the act concerning dower, approved March 24, 1845; that “ for several years before the death of the said G. Nuckolls, he became very intemperate, used ardent spirits to great excess, so thathe became weak and imbecile, and while in this condition he conveyed to John EL Casey, the defendant, for the consideration of $900,” a certain tract of land, which tract of land was worth at the time of the said conveyance, $2000 ; that “ said deed was made to defeat the full dower rights of the said Clarissa — it was executed a few months before his (Nuckoll’s) death, and was, in fact, a will in disguise, and an attempt to commit a fraud upon the rights of said Clarissathat the plaintiffs had made a demand in writing of said defendant, JohnH. Casey, to assign dower in the aforesaid tract, conveyed to the said Casey by the said Nuckolls, to the amount of one half thereof in fee simple, which was refused by the said Casey. The plaintiffs prayed the court “ to declare the rights of the said Clarissa in the premises, that she be seized of her dower accordingly, with a recovery of such damages,” &c.
    To this petition the defendant demurred. The demurrer was overruled, judgment given for the plaintiffs , defendant appealed.

      Noell and Frissell, for appellant.
    1. Dower is claimed in lands which did not belong to the husband at the time of his death. The widow claims under the 3d section of the dower law, which gives her dower only in lands belonging to the husband at the time of his death. 2. Although courts will not recognize the validity of'a deed or conveyance made with a design to operate as a will defeating dower, yet, where the effect of such a deed is not to defeat, but to change the character of dower, the rule does not hold good. The plaintiff has voluntarily renounced her claim to dower under the first section of the dower act, and must now abide by that renunciation, and take dower under the 3d section. The effect of this is to give tier the money, which arose from the sale of the land, in the place of the land. The change in character of the property -did not alter the extent of her rights. She still gets half of the proceeds of the land; but for her own voluntary act, she would have taken a third of the land for life. (R. C. 1845, tit. Dower, § 1 and § 3.) The case of Davis v. Davis, 5 Mo. Rep., and the case of Stone v. Stone, 18 Mo. Rep., are not applicable to this case. They arose under circumstances which cut off the widow entirely. 3. No fraud is charged against Casey in the petition. Whatever might have been the intention of Nuckolls, Casey is not responsible, unless he knowingly participated in the fraud.

      T. C. Johnson, for respondents.
    1. The conveyance to Casey having been made with intent to impair the dower rights of the wife, and in fraud of those rights, is void so far as she is concerned, and the land, for the purposes of dower, should be regarded as still belonging to Nuckolls. (Davis v. Davis, 5 Mo. Rep. 189. Stone v. Stone, 18 Mo. Rep. 391.)
   Scott, Judge,

delivered the opinion of the court.

The right of election in the wife, exercised and carried out as has been practiced in this case, would be productive of great injustice to purchasers. The rights of a purchaser should not depend on any secret intent of his vendor which is not communicated to him, and of which he has no knowledge. No case has arisen, where the marriage continued until it was dissolved by death, in which the wife complained that her right of election had been affected by any disposition of his property made by her husband in his lifetime, and we see no reason why the divorced wife should be in a better situation than the wife who continued such until the dissolution of the marriage by death. The case of Stone v. Stone, (18 Mo. Rep.) was founded on a complaint that the disposition of his property by the husband had defeated the right to dower, not merely the right of an election. The same remark is applicable to the case of Davis v. Davis, (5 Mo. Rep.) In giving the right of election to take one half of the property undisposed of, the law never intended to impose any restraint on the husband’s right of disposition» A mere right of election on a contingency, gives no such interest as will authorize the party entitled to the election to complain that the contingency has been prevented on which the right of election arises. The law gives as dower the right to one third of the husband’s estate, in all lands possessed during the coverture. On the contingency of the husband’s dying without children, the widow may elect instead thereof to take one half of the estate absolutely, of which no disposition has been made.. Now, it is- unreasonable to expect that the husband’s right of disposition should be restrained in order that there may be a foundation for the right of election. On what principle can the widow- make an election of the half of the property which remains undisposed of, and then turn round and complain that property had been disposed of which should not have been ? To yield to her complaint would be giving her an election, not to take the half of what is undisposed of, but the half of all that the husband was seized of during the cover-ture. The widow is not bound to make an election. The law has made provision for her without an election. If the actual existing state of things do not justify her in making an election, she should not resort to it. She cannot be allowed to make an election which confines her to the half of the property undis-posed of, and then be permitted to turn round and say, “ there is not as much undisposed of property as there should be; my husband should not have disposed of this or that tract of land.’'

In the present state of the case, we will not determine whether the wife is barred of her dower, consisting of a life estate in one third of the land in controversy, by reason of her deed of election. The judgment will be reversed, and the cause remanded ; the other judges concurring.


text:
    Morgan v. Buffington, Auditor of Public Accounts.
    1. A certificate, signed by the speaker of the house of representatives, and attested by the chief clerk, under the “ act to fix the pay of the general assembly and their officers,” approved February 20, 1835, (R. C. 1845, p. 713,) is not conclusive upon the auditor of public accounts. He can inquire into the truth of the facts, or contest the legality of the conclusion, stated by the speaker in the certificate granted by him to a member of the house.
    2. It is not within the constitutional power of the general assembly to make such a certificate conclusive upon the auditor of public accounts, or restrain the said auditor from an examination of the same, where the. act of signing and issuing such certificate involves an infraction of the constitution.
    3. A member of the general assembly at the revising session of 1854-5, is not not entitled to a per diem,- allowance during an adjournment of said assembly from March 5lh to November 4th, 1855, such adjournment having been made with a view to a dispersion of the members, and their return to their homes, during the intermediate time.

      Application for a Mandamus.

    This is an application to the Supreme Court by John E. Morgan, a member of the house of representatives, of the eighteenth general assembly, for a mandamus, directed to the auditor of public accounts, requiring him to draw his warrant on the state treasurer for an amount certified by the speaker of the house of representatives, to be due to the said John E. Morgan, as a compensation for services as member of said house. The facts of the case sufficiently appear in the opinion of the court.
    It was contended in behalf of the applicant, that the adjournment of the legislature was a mere recess to enable a committee to revise the statutes (see joint resolution, App’x, Sess. Act, 1856, p. 718). The legislature was in session during the time for which the claim for pay is made, for the purposes of' revision, and was actually engaged in revising the laws through a committee constituted for the purpose. It was absolutely necessary to take a recess, in order that the committee might do the work assigned them.

      On behalf of the auditor, (Buffington,) the following authorities were cited: State v. Hinkson, 7 Mo. 353 ; Page v. Hardin, 8 B. Mon. 648.
   Scott, Judge,

delivered the opinion of the court.

This case comes to us on an agreed statement, and the parties have submitted that the opinion of the court may be given on the facts as represented in the petition and the accompanying papers, without the formality of a mandamus in the alternative on the auditor.

The application has found us in the midst of a laborious session, and a speedy determination of the question being solicited, we are prevented from going into a lengthy argument in support of the view we entertain in relation to the important question submitted for our determination.

It appears that the petitioner, John E. Morgan, a representative from the county of Bates, was elected a member of the 18th session of the Missouri general assembly. That session began on the 25th day of December, 1854, and continued until the 5th day of March, 1855, when it was adjourned by a joint resolution of the two houses, until the first Monday of November following. The 18th being a revising session, within the contemplation of the amendment to the constitution, adopted during the session of 1848-9, the adjournment was made with the view that the laws might, in the interval, undergo a revision by a committee composed of members of the two houses, who were required to report to the general assembly at the time to which the adjournment was made. The two bodies being again assembled in pursuance to the adjournment, the petitioner obtained from the speaker of the house of representatives, of which he was a member, a certificate clothed with the formalities required by the act of the legislature fixing the pay of the general assembly and their officers, approved February 20th, 1835, to the effect that the sum of $302 was due to him for services as a member of the house of representatives from the 6th o£ March to the 3d of April, 1855, at three dollars per day, and from April 4th to November, 1855, at one dollar per day, making together the sum of $302, above mentioned.

From the foregoing statement, it will be seen that the question presented for the determination of the court is, whether, under the constitutional amendment adopted at the session of 1848-9, a member of the legislature can claim compensation for services as a member, during an interval between an adjournment and the day to which the general assembly stands adjourned, the adjournment contemplating a dispersion of the members and their returning home to a distant day.

1. Preliminary to the question stated, one has arisen which involves the right or power of the auditor to go behind the certificate of the presiding officer of the house, and inquire into the truth of the facts stated by him. It is maintained that the certificate is conclusive on the auditor ; that it is a sufficient voucher for him for any warrant he may draw upon the faith of it; that the responsibility of the act rests on the body from which the certificate emanates, and that he stands absolved from all responsibility for conforming to the requirements of the law in allowing the demand.

Since the adoption of the amendment to the constitution, to which reference has been made, there has been no statute carrying into effect its provisions in relation to the pay of the members of the general assembly. That subject has been left to the act fixing the pay of the general assembly and their officers, approved February 20th, 1835, (R. C. 1845, p. 713,) and to the constitutional amendment, as it stands adopted. The act referred to has been regarded as directing the manner in which the compensation is to be obtained from the treasury, whilst the amendment to the constitution is looked to in order to ascertain the per diem allowance and the length of time during which the members shall receive three dollars or one dollar a day as a compensation for their services.

Adopting this practice of the government as sanctioned by law, we then have in force the last clause of the 4th section of the act regulating the pay of the general assembly and their officers, which prescribes that, “ upon the presentation of such certificate to the auditor of public accounts, he shall draw his warrant on the treasurer for the amount.” The certificate here alluded to is such a one as was presented by the petitioner to the auditor, in the 'case before us, in which it was certified by the speaker of the house of representatives that he was entitled to the sum of three hundred and two dollars, for services as a member of the house of representatives, from'the 6th of March to the 4th of November, 1855. This is the purport of the certificate. Now the fact is, that during the period mentioned in the certificate, the general assembly was dispersed by an adjournment, and the members were at home engaged in their private pursuits.

Under these circumstances, the question recurs, whether the auditor can inquire into the truth of the fact, or contest the legality of the conclusion stated by the speaker in his certificate granted to the petitioner.

The auditor of public accounts is an important officer, entrusted with the management of the revenues of the state. Whilst the treasurer holds the iron or brazen key of the treasury, the auditor holds the legal key, and it is through his instrumentality alone that money can lawfully be drawn from it. The state looks to him as the protector of her treasure. The powers confided to him are necessarily large, and as by his mismanagement the state may at any time be rendered unable to fulfil her pecuniary engagements, so there should he a power in him to prevent such a state of things. No doubt there are cases in which the general assembly may make a voucher conclusive on the auditor, and require him, as a mere instrument of the law, to issue a warrant without any examination into the justice or legality of the claim. Whether the general assembly has, in any case, made a voucher conclusive on the auditor, is a question to be determined by the auditor, subject to the revision of the courts. We see nothing in the act fixing the pay of the members of the general assembly which shows that it was designed to make tbe voucher of the speaker conclusive on the auditor. Suppose the speaker should, in the form adopted in the present case, issue his certificate to ten thousand men as members of the 18th general assembly, would, those certificates be binding on the auditor? If, under the authority of such vouchers, the auditor should issue warrants on the treasury, could he escape the indignation of the community and avoid the punishment due his crime ? As some of the ten thousand, in the case supposed, would be members, and really entitled to their pay, how could the auditor distinguish between those who were or were not members, but by hearing evidence, or, which is the same thing, acting on his own knowledge, and distinguish between the real and pretended members ? When we contemplate the consequences which may ensue from maintaining that a voucher cannot be examined, and its correctness tested, we see no propriety in investing such instruments with the sanctity claimed for them by the argument. It is for the interest of the state that there should be such a power in the auditor. It is better that an individual should be delayed in the receipt of the compensation due for his services, than that a door should be opened by which the public treasury would be subjected to exactions wholly unwarranted by law. Ours is a government of checks and stays. These are necessary incidents to the freedom of our institutions. They are a part of the price we pay for the liberties we enjoy. When we reflect on the high powers, in relation to the revenue, with which the auditor has been clothed; the responsibility under which he acts ; his immediate subjection to the authority of the courts ; there is nothing but safety to the state in giving him a right to re-examine vouchers presented as a foundation for warrants on the treasury. Cases may arise in which the misstatement of the fact contained in a voucher arises wholly from a misconception of the law ; how reasonable in all such cases that the voucher should be subject to the re-examination of the officer entrusted with the management of the revenue of the state !

2. Thus far we have considered the voucher of the speaker, in reference alone to the act fixing the pay of the general assembly, passed when the compensation of the members and the duration of the sessions were subjects within the control of ordinary legislation. But in relation to the matter as it stands affected by the constitution at the present day, we are of the opinion that it would not be within the constitutional competency of the general assembly to restrain the auditor from a re-examination of the voucher, with a view to present his determination of the question, whether the act of the officers of the house involved an infraction of the constitution. It is obvious that, if the general assembly possesses the power by law of compelling the auditor to issue his warrant on vouchers framed according to a formula they may prescribe, then there is no way to enforce the observance of the constitutional restraints imposed on the legislature in regard to the length of its sessions and the pay of its members. It is no answer to this objection that the legislature is responsible to the people for its conduct. That may be so, and there may be violations of the constitution by the general assembly which can only be corrected by the people at the polls. But because there may be cases in which that is the only mode of redress, it does not follow that those instances should be multiplied and left without opposition, when an obvious mode of arresting them is at hand. When the constitution is violated by the general assembly and that violation is complete within itself, and requires no aid from the other departments of the government in order to make it effectual, it must stand until the people see proper to remedy it. But where their act cannot be effectuated without the aid of others, and of those, too, who are sworn to support the constitution, a regard for the maintenance of our system of government, resting on written charters, requires that obedience should not be yielded to an enactment which has no sanction in the fundamental law.

3. An amendment to the constitution, adopted during the session of 1848-9, ordains, “ that the members of the general assembly shall receive a compensation for their services not to exceed three dollars per day for the first sixty days, and after that time not to exceed one dollar per day for the remainder of the session, except at a revising session, they may receive a compensation not to exceed three dollars per day for the first one hundred days, and one dollar per day for the remainder of the session.” Under this provision, it is maintained that the general assembly may begin its session at the time appointed by law and continue it for sixty or one hundred days, according as it is a revising session or not, or for a shorter time, and then adjourn to a day long distant, the members dispersing and returning home to their usual occupations, and on their re-assembling at the appointed time, they may claim one dollar per day for every day the houses stood adjourned ; or, if they adjourned before the expiration of the sixty or one hundred days, then they would be entitled to three dollars per day for such a period as would make up the sixty or one hundred days, and one dollar a day for the remainder of the time. It is clear that the object of the amendment was to effect a diminution of the public expenditures, by curtailing the sessions of the general assembly. It was supposed that sixty days- ordinarily, and one hundred days at a revising session, would be sufficient to mature all laws required by the interests of the state. Not absolutely prohibiting a continuance of the sessions after the periods specified, the compensation of the members was reduced to a sum barely sufficient to defray the expenses of the most economical. The reduction of pay had the effect anticipated. No session, since the adoption of the amendment, has continued more than a day or two beyond the time during which the compensation was three dollars. The object of the constitutional amendment being plain, on what principle can it be evaded, by a dispersion of the members, so soon as their pay is reduced to one dollar a day, and their continuing at home until their compensation, at one dollar, shall amount to a sum sufficient to pay three dollars a day during the time required to complete the business of the session ? That which cannot be done directly is prohibited from being done indirectly. Such a construction of the amendment to the constitution renders it a dead letter, and places the state, so far as the end to be attained by it is concerned, in the same condition in which she stood before it was adopted. Indeed, by the construction contended for, the state, so far from attaining the object designed by the amendment, may be placed in a worse condition than before, for the adjournment may be prolonged to a day so distant that the compensation, at one dollar a day, may amount to a sum greatly more than sufficient to pay the members three dollars a day for the time necessary to do the business of the session. Thus an amendment to the constitution solemnly adopted, with the design to curtail the expenses of the government, is made to receive an interpretation by which those expenses may be greatly augmented.

The question, so far, has only been viewed in its constitutional bearings ; but when considered as a matter of contract between man and man, or between the state and one of her citizens, there is nothing in the claim to commend it to our sense of justice. Take the words of the amendment and insert them in a contract between private persons, and we are aware of no principle that would warrant a claim for compensation, by the party who had voluntarily abandoned the service of the other, during the time of such abandonment and whilst he was engaged in his own pursuits. A persuasion that the interests of the employer would be promoted by a delay in the execution of the contract, would confer no right to claim for services during the time the performance of the work was delayed. Full compensation for the time employed had been received, and the agreed compensation is offered when the services are resumed. Such would be the considerations that would influence our determination in a question arising on a contract between individuals, and we are advised of no rule that would warrant a different mode of interpretation in a controversy between the state and one of her citizens.

Mandamus refused ; the other judges concurring.


author: Ryland, Judge, Scott, Judge,

text:
    Randolph et al., Respondents, vs. Keiler, Appellant.

      Z. Where, in a suit on a judgment of a sister state, it is alleged in the petition that the plaintiffs, J. F. R. and C. R., recovered the said judgment against the defendant, and it appears from the transcript offered in evidence that the judgment was in favor of J. F. R. and C. P. R. : held, that this is an immaterial variance.
    2. Where the judgment declared on is a judgment of the “ Inferior Court of Common Pleas, in and for the county of Sussex, state of New Jersey,” held, that the petition is supported hy producing a transcript of a judgment, certified by the clerk and judge of the “ Inferior Court of Common Pleas, in and for the county of Sussex,” &c., although in the body of the transcript .the court in which the proceedings were had is styled the “ Sussex Common Pleas,” &c., and the “ Sussex County Court of Common Pleas,” &c.
    3. Where, in suit on a judgment of a court of the state of New Jersey, it appears from a transcript of such judgment, that the same was entered and rendered, as confessed, (in pursuance of the law of the state of New Jersey,) by virtue of and in pursuance of a warrant of attorney, dated at Eas-ton, Penn., empowering “any attorney of any court of record in the United States, to confess judgment against” the defendant and in favor of the plaintiffs: held, that such judgment, being valid in the state of New Jersey, by virtue of the laws thereof, is entitled to “ full faith and credit,” within the meaning of section 1, of article 4, of the constitution of the United States, and that, too, although it does not appear that either the plaintiff or the defendant were, at the date of said judgment, citizens of the state of New Jersey, or had ever been within the said state. (Scott, J., dissenting, holding that, in order that a judgment of a sister state may he binding under the constitution, it must be rendered in pursuance of the law of the state in which it is rendered operating on her resident citizens; which does not appear to have been the case here; and that the warrant of attorney was not pursued in this, that it does not appear that the judgment was confessed by g.n attorney of a court of record, but by a private agent of the plaintiffs.)

      Appeal from Sf. Louis Court of Common Pleas.

    This was an action brought by James E. Randolph and Car-man Randolph against the defendant, Keiler, on a transcript of a judgment, alleged in the petition to be a judgment of the “Inferior Court of Common Pleas, in and for the county of Sussex, state of New Jersey.” It is alleged in the petition “ that on the 11th day of November, A. D. 1845, before Lewis Howell, then judge of the Inferior Court of Common Pleas in and for tbe county of Sussex, state of New Jersey, and in the said Inferior Court of Common Pleas, in and for the said county of Sussex, in the said state of New Jersey, the said plaintiffs, by the consideration and judgment of said court, recovered against the said defendant the sum of $502 51 debt,” and four dollars costs. Plaintiffs admit in petition a payment on said judgment of $149 28, on November 12th, 1845, and claim judgment for the balance, $858 23, with interest from November, 1845. The answer of defendant is fully set forth in the opinion of the court. The cause was submitted to the court without a jury, and on the trial the plaintiffs offered in evidence the revised code of New Jersey, and the following exemplification of a judgment:

      Exhibit “ filed with and referred to in Petition.

      " James F. Randolph & Carman F. Randolph vs. Raphael Keiler. Sussex Common Pleas — New Jersey. Sussex county, ss. Herman S. Heckman, of full age, being duly sworn upon his oath, saith that deponent is the agent of James F. Randolph and Carman F. Randolph, partners in trade, under the name and style of James F. Randolph & Co., who are out of this state, to-wit, at Easton, Pennsylvania, and that the true consideration of a judgment obligation given by one Raphael Keiler, to the said James F. Randolph & Co., for the sum of $498 93, one day after date, and dated the 27th day of September, 1845, upon which judgment is about to be entered up in the Court of Common Pleas of the county of Sussex, consisted in goods, wares and merchandise, sold and delivered by the said James F. Randolph and Carman F. Randolph to him, said Raphael Keiler, and that said debt is justly and honestly due and owing from said Raphael, and that said judgment is not confessed to answer any fraudulent intent or purpose, or to protect the property of said defendant from his creditors. (Signed) H. S. Heckman. Sworn to and subscribed this eleventh day of November, 1845, before me, Lewis Howell, Judge of Common Pleas.”

      [Copy of Note.]

    “ $498 98. “EastoN, September 27tb, 1845.
    “ One day after date, I promise to pay to order of James F. Randolph & Co., four hundred and ninety-eight dollars and ninety-three cents, without defalcation, for value received.
    ‘‘And further, I do hereby empower any attorney of any court of record in the United States, to enter and confess judgment against me for the above sum of $498 98 debt and costs of suit, release of errors, &c. Witness my hand and seal, the day and date aforesaid. Raphael Keiler, (seal.) Witness present, H. S. Heckman.”
    “ Sussex County Court of Common Pleas, of the term of November, 1845. James F. Randolph & Carman F. Randolph vs. Raphael Keiler. In debt on obligation and warrant of attorney.
    “The defendant’s appearance to this action is entered, and judgment confessed to the plaintiff for the sum mentioned in the above obligation, by virtue of the warrant of attorney thereto annexed, and pursuant to the direction of an act entitled ‘ ‘ an act directing, the mode of entering judgments on bonds with warrants of attorney to confess judgments.” Whereupon, it is considered that the said James F. Randolph and Carman F. Randolph do recover against the said Raphael Keiler the sum of $502 51 debt, and four dollars costs of suit. Judgment signed this 11th day of November, 1845. Lewis Howell, Judge of Common Pleas.”
    “ I do certify that, at the time of confessing said judgment, the plaintiff therein produced before me an affidavit of the true consideration of the obligation for which said judgment was confessed, &c., and of the other requirements of the statute in such case made and provided. Lewis Howell, Judge, &c. November 11th, 1845.”
    “New Jersey, Sussex county, ss. I, Thomas J. Ludlum, clerk of the Inferior Court of Common Pleas in and for said county, do hereby certify that the above copy of the judgment of James F. Randolph and Oarman F. Randolph, vs. Raphael Keiler, is a true copy of the same, as the same remains a record in my office. Judgment entered and recorded in book X, of judgments, p. 619, &c. In witness whereof, I have hereunto set my hand and seal of office at Newton, this thirteenth day of April, A. D. 1858. Thos. J. Ludlum, clerk.” (Seal.)
    “I, Moses Dunning, Presiding Judge of the within named court, do certify that the within attestation is in due form of law, and made by the proper officer to make the same. Witness my hand and seal, this 14th day of April, A. D. 1858. Moses Dunning.” (Seal.)
    The above comprises the whole of the transcript offered in evidence. To the introduction of this transcript, the defendant at the time objected, and among other reasons assigned specially, that said exemplification was not sufficiently authenticated either by the clerk or the judge of the court from which the same purports to come. The court overruled defendant’s objection, and received the said exemplification in evidence. Defendant excepted. The finding of the court is fully set forth in the opinion of the court.
    Hill, Grover & Hill, for appellant.
    1. There is a variance between the judgment declared on and that offered in evidence. The judgment declared upon is a judgment of the “ Inferior Court of Common Pleas, in and for the county of Sussex, state of New Jersey.” The judgment offered in evidence, as clearly appears from the heading of the judgment entry, and also from the certificate of the judge before whom the same was rendered, is a judgment of “the Sussex County Court of Common Pleas.” See the heading of the affidavit. The clerk certifying the judgment does not certify that he is clerk of the court in which the judgment was rendered, but of “ the Inferior Court of Common Pleas of Sussex county.” There is nothing to identify him as clerk of the court which rendered the judgment. The clerk and judge are clerk and judge of “ the Inferior Court of Common Pleas.” The judgment attempted to be certified is a judgment of “ the Court of Common Pleas.” It is not stated in the certificate that the judgment is a judgment of the “ Inferior Court of Common Pleas,” but that “ the same is a copy of the judgment which remains of record in his office.” How it became a record in that office, does not appear. The authentication must come from the clerk and judge of the court in which the judgment was rendered. It cannot be presumed that the courts are the same. This must appear from the record itself. The certificate is dated about eight years after the judgment. If the name of the court had been changed, or if the record had been transferred to another court, so that there was a legal succession, that fact must appear. There is also a variance in. the name of one of the plaintiffs. The case in 8 Mo. 428, was decided upon facts unlike those in the present case. 2. The judgment offered in evidence was entered up without authority. The power in warrant of attorney was exceeded; in that, judgment was given for $502 51 and costs, while the power of attorney only authorizes a confession for $498 93 and costs. It appears that the proceedings were summary, and that the judgment was entered up in the absence of defendants under the warrant of attorney. 8. The answer having, by denying the execution of the power, put the same in issue, it devolved upon the plaintiff to prove its execution.

      M. L. Gray, for respondents.
    1. There was no variance between the judgment declared on and the one read in evidence. It sufficiently appears on the whole record that the judgment was a judgment of the “Inferior Court of Common Pleas of Sussex county.” The principles of the case of Chandler v. Garr, (8 Mo. 428,) seem to cover this case. By the constitution of the state of New Jersey, the proper style of the courts of Common Pleas is, the “ Inferior Courts of Common Pleas.” (See Constitution of N. J., art. 6, § 1 and § 6 ; also 13 S. & R. 135 ; 7 Cranch, 408 ; Littell’s S. 0.142.) 2. The authority of the warrant of attorney was not exceeded. The-power to enter judgment on the bond carried with it as an incident, the right to include in the judgment the interest. The.entry of the judgment was regular. (See R. S. of N. J. 944.) 3. The answer of the defendant was such as to put the plaintiffs on the proof of the judgment only ; and the defendant cannot raise the questions of jurisdiction or want of authority, after the existence of the judgment is shown. The judgment, when produced, was conclusive upon the defendant, unless he could show fraud.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit upon a judgment of the Inferior Court of Common Pleas of Sussex county, in the state of New Jersey. The judgment was confessed by virtue of a power given by the debtor.

The defendant, in his answer, says he has no recollection or knowledge sufficient to form a belief whether any such judgment as described in plaintiffs’ petition was ever recovered against him. He says that it appears by a pretended transcript of such judgment, now on file as an exhibit, that one Herman S. Heckman, as the agent of said plaintiffs, caused said judgment to he entered against this defendant, by virtue of a certain pretended judgment bond. Defendant denied ever having executed such an instrument as described in said transcript, on which it is stated said judgment was entered ; and avers that if his name appears to any such instrument of writing, as mentioned in said judgment bond, the same was obtained by fraud and without his knowledge of its contents, and denies being indebted to plaintiffs. The cause was submitted to the court for trial without a jury, and the court found that the plaintiffs did recover of the defendant the judgment set out in the petition as the same is charged in the petition ; that said judgment still remains in full force unreversed and unsatisfied, and that there has -been paid on said judgment only the sum stated in the petition ; that the bond on which said judgment was recovered was executed by the defendant, and the same was not obtained nor was his signature thereto obtained by fraud or without defendant’s knowledge of its contents ; that there was still due from defendant to plaintiffs, at the commencement of this suit, and is still due, the amount claimed in the petition, and rendered judgment for plaintiffs for the sum of $535 9T.

The defendant moved the court to set aside its finding of the facts and its decision thereon, and grant a review and rehearing of the cause. This motion was overruled, and the case is brought here by appeal.

The record shows that on the trial the plaintiff offered in evidence, to sustain the issues on this point, the revised code of New Jersey, and an exemplification of a judgment on which the suit is founded. The defendant objected to the introduction of the exemplification of the judgment, and assigned as reasons specially, among other matters, that it was not sufficiently authenticated by the 'clerk or 'by the judge of the court from which the same purports to come ; but the court overruled his objection and admitted the exemplification'in evidence, to which defendant excepted. This was all the evidence in the case.

The only questions, then, which can legitimately arise in this case, involve the correctness of the opinion of the court below, by which the exemplification of the judgment was received as evidence.

The defendant contends that there is a variance in the style of the court upon whose judgment this suit is brought, as set forth in the plaintiffs’ petition, and in the exemplification offered in evidence.

Let us examine this matter and see if there be any such variance as may be considered material. The plaintiffs, in there petition, state that they, James J. Randolph and Carman Randolph, by the consideration and judgment of the Inferior Court of Common Pleas in and for the county of Sussex, in the state of New Jersey, recovered against said defendant the sum, &c. The exemplification of the judgment commences thus : " Sussex County Court of Common Pleas, of the term <of November, one thousand eight hundred .and forty-five. James F. Randolph & Carman F. Randolph vs. Raphael Keiler. In debt on obligation and warrant of attorney.”

The defendant’s appearance to this action is entered and judgment confessed, &c., for the sum mentioned in the above obligation, by virtue of the warrant of attorney thereto annexed, and pursuant to the direction of an act entitled an act directing the mode of entering judgment on bonds with warrants of attorney to confess judgments.” Then follows the formal recovery and judgment in the names of James F. Randolph and Carman F. Randolph against said Raphael Keiler, for the sum of $502 51 debt, and $4 costs of suit. This judgment was signed by Lewis Howell, Judge of Common Pleas. The judge then certifies that at the time of confessing said judgment, the plaintiffs therein produced before him an affidavit of the true consideration of the obligation for which said judgment was confessed, &c., and of the other requirements of the statute. Then follows the clerk’s certificate, in the following words :

New Jersey, Sussex county, ss. I, Thomas J. Ludlum, clerk of the Inferior Court of Common Pleas, in and for said county, do hereby certify that the above copy of the judgment of James F. Randolph and Carman F. Randolph vs. Raphael Keiler, is a true copy of the same, as the same remains a record in my office. Judgment entered and recorded in book X, of judgments, p. 619, &c. In witness whereof, I have hereunto set my hand and seal of office at Newton, this 13th day of April, A. D. 1858. Thomas J. Ludlum, clerk.” (Seal.)

Then comes the judge’s certificate: “I, Moses Dunning, Presiding Judge of the within named court, do certify that the within attestation is in due form of law, and made by the proper officer to make the same. Witness my hand and seal, this 14th day of April, A. D. 1853. Moses Dunning, Judge.” (Seal.),

The middle letter, F,” in the name of Carman F. Randolph, is not inserted in his name in the petition of the plaintiffs, but is in the record of the judgment. This is not an important or material variance.

The word “Inferior" is inserted in the petition, alleging the recovery by the plaintiffs in the Inferior Court of Common Pleas of Sussex county. In the exemplification the word is omitted in some parts of the record and inserted in others. It is in the certificate of the clerk; the judge mentions it by saying “the within named court” — meaning the court mentioned in the clerk’s certificate. We do not consider the omission or insertion of the word “ Inferior” as at all changing the court. It may be sometimes called the Court of Common Pleas or the Inferior Court of Common Pleas. There is enough in the record to let a reasonable man see it is the same court. There is nothing, then, in the objections set up, by the defendant in this case, against the admission of the exemplification of the judgment of the Inferior Court of Common Pleas of Sussex county, New Jersey.

Here is a properly authenticated copy of a judgment of a sister state, upon a peculiar instrument in writing or bond, authorizing any attorney of any court of record in the United States, to enter and confess judgment against the obligor for the sum of money due thereby. This is allowed by the statute of New Jersey, approved April 15th, 1846. This statute makes all judgments entered by its provisions, “as good and effectual in law to all intents and purposes whatsover, as judgments entered by confession in the manner heretofore practiced j and no such judgment shall be reversed for error or misprision of the clerk in entering the same, or defect of form in the entry thereof; and execution shall issue thereon as in cases of judgments entered by confession in the manner heretofore practiced.” This proceeding in New Jersey can only be in cases where a bond or other obligation is given for the payment of money only, together with a warrant under hand and seal, directed to any attorney at law or other person, to appear in any court of record to an action brought or to be brought on such bond or obligation against the person or persons executing the same, and to confess judgment against him, her or them, for the sum mentioned in such bond and warrant of attorney, with costs of suit.

The record, an exemplification of which is made an exhibit in this case, and which was offered in evidence, shows that the requisites of the statute of New Jersey have, in general, been complied with.

There can be no doubt of the effect of this judgment in the state of New Jersey. The proceeding is one regulated by their statute alone ; it is one founded on what is called a judgment bond. The obligor in the bond empowers any attorney of any court of record to enter and confess judgment against him for the debt and costs of suit. These -costs are by law fixed at four dollars, and if execution issues, then one dollar more ‘is allowed for costs.

The law requires that a copy of the bond and warrant of attorney to confess judgment, with the entry of the judgment thereon, signed by the justice or judge, shall be delivered to the clerk of the court in which such judgment is to be entered, and the clerk shall immediately file the same in his office, mark thereon the time of filing the same, and enter the judgment on the minutes of the court, and shall also enter all the proceedings on which such judgment shall be founded as aforesaid, and the judgment itself at large in the judgment book of the court, and index the same as in other cases of judgment.” The exemplification of the record in this case, shows all the necessary acts have been done. Here is the affidavit, the copy of the bond, and of the power to confess judgment. Here is the confession of the debt, and of the judgment — all properly certified and authenticated, to be used as evidence. Now, no matter how general the terms of the power of attorney be to confess judgment, it can only be confessed on such bonds and under such powers as are embraced by the statute authorizing the proceeding ; that is, in the state of New Jersey only. But when thus confessed in that state, the judgment there is declared to be as good and effectual, to all intents and purposes, as judgments entered by confession in the manner practiced before the statute was enacted.

Now giving to this judgment the effect of any other regularly confessed judgment of the courts of New Jersey, we see at once that the plaintiffs are entitled to recover. The power to confess judgment for the debt in the bond or for the sum of money specified in the bond, as a necessary incident embraces the power to confess also for the interest due on the bond.

Upon the whole case, then, I am satisfied that the judgment of the court below is correct, and should be affirmed; and, Judge Leonard concurring, the same is affirmed.

Scott, Judge,

dissenting. I do not concur in the foregoing opinion. The instrument sued on is not a record nor judicial proceeding within the meaning of the constitution of the United States. To give binding -effect to a judgment, it is essential that the court should have jurisdiction of the person and of the subject matter. If any other judgment is binding under the constitution, it must be rendered in pursuance of the law of the state in which it is rendered operating on her resident citizens. It does not appear from the record which is the foundation of this suit, or from any thing outside of it, that either the plaintiffs or defendant were ever within the state of New Jersey, where this judgment was entered. The bond, with the power of attorney, by virtue of which the judgment was rendered, is dated in Pennsylvania. It is a general power to any attorney in any court of record in the United States to confess a judgment, not in New Jersey, but in any court of record in the United States. If judgments thus obtained shall be regarded as records and judicial proceedings within the meaning of the constitution of the United States, that instrument will become odious, as furnishing a means by which the greatest injustice and oppression may be practiced. It is well settled that if a sister state grant jurisdiction to her courts over persons or property not within her territory, such legislation will be treated elsewhere as a mere attempt at usurpation, and all judicial proceedings in virtue of it beld utterly void. (Cowen’s Notes, 907.) Respectable courts have beld that tbe words, “ records and judicial proceedings,” in tbe constitution of tbe United States, are words of definite meaning at common law ; that tbe common law never recognized judicial proceedings, as foreign judgments, unless rendered by a court of record upon personal notice to tbe defendant, or bis appearance to tbe action ; that “ tbe records and judicial proceedings” contemplated by tbe constitution, were, therefore, not judgments rendered without notice to tbe defendant or appearance to tbe action, but judgments which were recognized and enforced at common law as foreign judgments. (1 N H. 242 ; Cowen’s Notes, 911.) But, admitting that a state, with regard to her resident citizens, may adopt absurd and unjust provisions, may permit judgments on constructive notice, or whatever else she may think fit to make notice, and that such judgments will be enforced in tbe neighboring states, yet this broad and liberal construction of tbe words of tbe constitution will not cover this case. (Cowen’s Notes, 914-15.)

Tbe bond and power of attorney under which this judgment was confessed, were executed in Pennsylvania. It does not appear that any of tbe parties to tbe suit were residents of New Jersey, or bad ever even been in that state. Tbe power of attorney authorizes any attorney of any court of record in tbe United States (not in New Jersey merely) to enter and confess a judgment. We do not see bow any court, under such a power of attorney, would permit a judgment to be confessed and entered on its records. If the power bad been confined to tbe limits of tbe state of New Jersey, and it bad appeared from tbe proceedings that tbe defendant was a resident citizen of that state, tbe judgment, under her law, might have been upheld. As it stands, there is nothing showing that it was in tbe contemplation of the parties that tbe judgment should be confessed in New Jersey, and it is not seen bow her officers took cognizance of it. To bold that under a power of attorney to any attorney of any court of record in tbe United States, an attorney in any state may confess a judgment, and that the judgment so confessed shall have full faith and credit in all the other states,' would be giving the constitution a latitude of construction mischievous in itself, and one that might lead to great oppression and injustice.

The judgment, in my opinion, is erroneous, for the further reason that it was not confessed by an attorney of a court of record. The creditor had no right to substitute, in place of an officer responsible to the court for his conduct, and specially designated by the parties, a mere private agent of the plaintiffs. The person confessing the judgment styles himself agent for the plaintiffs, and it does not appear that he is an attorney in any court. The power not having been pursued, the act is not valid.


author: Ryland, Judge,

text:
    Farrar et al., Appellants, vs. Finney et al., Respondents.
    1. A bill of exceptions cannot be allowed and signed at a terra subsequent to that at which the trial is had, without the consent and against the objections of the opposite party.
    2. The respondent, or defendant in error, is not precluded from moving to strike out a bill of exceptions allowed and filed out of time, by the fact that he may have filed his joinder in error.

      Appeal from St. Louis Circuit Court sitting in Chancery.

    There was a motion made by the respondents in this cause, after a joinder in error, to strike out the bill of exceptions, allowed and signed by the judge, on the ground that it had been allowed and signed out of time, against the objections of the defendants, the present respondents. All the facts bearing upon the said motion sufficiently appear in the opinion of the court.

      Polk and Dayton, for respondents,
    cited, in support of the motion to strike out the bill of exceptions, Consaul v. Lid-dell, 7 Mo. 250. Pomer.oy v. Selmes, 8 Mo. 727. Scott
      y. Bird, 9 Mo. 149. JHassinger v. Pye, 10 Mo. 156. Upon an examination of the records in the case of Consaul y. Liddell, (7 Mo. 260,). it appears that the motion to strike out the bill of exceptions was made after a joinder in error. The joining in error cannot amount to a waiver of the right of the appellees to object that the bill of exceptions was improperly allowed. It is no admission that the bill of exceptions is properly a part of the record. If the bill of exceptions is not properly a part of the record, there can be no error in the record, as far as such bill is concerned, and to say that there are no errors in the record is certainly comprehensive enough to contain the affirmation that the bill of exceptions is no part of the record.
    Delafield, Barrett and Leslie, for appellants.
    1. It was in the power of the court to give time to put the exceptions in form, and the consent or dissent of the opposite party in no manner whatever affected this power of the court, or the exercise of the same, in the case at bar. If consent by the adverse party is indispensable, such party, at all times, will or may withhold his approval, and thus take the administration of the law into his own hands. Suppose that the term of a court is limited by law, so that it cannot be held beyond a certain day, and a verdict of a jury is rendered at the last hour of the term, and judgment upon such verdict, exceptions having been taken at the trial, but the bill not yet drawn up in form: what shall be done ? Must consent be given, or else the right to correct the errors of the court below, in the court of appeals, be cut off ?. 2. The appellees are precluded from- moving to strike out the bill of exceptions by the joinder in error. After join-der in error, the appellants had a right to suppose that this issue was made up in this court, and that nothing but error or no error in the record could properly be a matter of contest. (Harlow v. Humiston, 6 Cow. 189. 9 Wend. 241. Nes-bitt v. Dallam, 7 Gf. & Jo. 494. 3 Scam. 15, 61. 11 Mo. 408.) The case cited by respondents, to-wit, 7 Mo. 250 ; 8 Mo. 727 ; 9 Mo. 149 ; 10 Mo. 150, are not analogous.
   Ryland, Judge,

delivered the opinion of the court.

Finney and others, the respondents here, filed their motion to-strike out the bill of exceptions from the record of the proceedings in the case, because the bill of exceptions was not prepared, presented or signed in proper time ; but was prepared, presented and signed out of time, and against the remonstrance of the defendants.

This motion was filed 29th March, 1854, and was sustained. On the 15th of April, 1854, being at the same term of the court, the appellants’ counsel moved the court to rescind the order made on respondents’ motion to strike out the bill of exceptions and reinstate the bill of exceptions on the record. This motion was sustained, and the first order made was set aside. At the same term, the respondents made a motion to set aside this last order vacating the first order, so as to reinstate the order striking out the bill of exceptions. This motion was continued and is still pending in the cause. Upon a careful examination of the record, we find that the bill of exceptions was not signed at the proper time. The court gave leave to the plaintiff’s counsel to file their bill of exceptions by the first day of the November term-, 1853. The cause was heard and determined at the April term, 1853. The court adjourned the April term until some time in the fall of the same year. On or about the 8th of October., 1853, the counsel for the defendants submitted the decree which had been drawn up in accordance with the practice of the court in such, cases. Tw-o days after this decree was submitted, it was finally approved and filed. The plaintiffs’ motion for a rehearing was overruled, October 15th, 1853, seven days before the final adjournment of the term, at which time the court gave plaintiffs’ counsel until the first day of the November term following to file their bill of exceptions. The bill of exceptions was signed February 15th, 1854 ; the defendants’ counsel objecting to the signing and filing the same, from the 15th October up to the time it was signed and filed, and doing no act or giving no consent to authorize this proceeding.

1. This motion to vacate the order rescinding the first order made 'Striking out the bill of exceptions must prevail, and the order striking out the bill of exceptions must be restored. The bill of exceptions is accordingly stricken from the record. This court has decided over and over again, that the bill of exceptions cannot be signed at a subsequent term without the consent of the counsel of the opposite party. See the cases of 'Consaul & Bar Jeer, garnishees of Jenkins, v. Liddell, (7 Mo. 250.) Pomeroy v. Selmes, (8 Mo. 727.) Scott v. Bird, (9 Mo. 148.) Hassinger v. Pye, (10 Mo. 156.) It has become the settled practice of this court to disregard or strike out bills of exceptions that have not been filed according to law. The statute of our state (Practice at Law, R. C. 1845, art. 4, § 25) prescribes the time in which bills of exceptions may be taken and filed. They cannot be filed at a subsequent term without the consent of the opposite party. Under the new code of practice, exceptions may be taken to the opinions of the court during the progress of any civil action, and bills of exceptions shall be allowed, signed and made part of the record in manner as heretofore. (Art. 19, § 6, New Code.)

2. When the motion to vacate the first order, striking out the bill of exceptions, was made and sustained by this court, it was under the impression that the respondents were precluded from making such motion as they had, because they had filed their joinder in error; but, upon reflection, there is nothing in that view, nor do the cases heretofore settled by this court warrant such a conclusion.

It is to be regretted that this matter was not earlier settled; but reluctant as this court is to see causes pass off on other grounds than such as settle the merits of the controversy, either in fact or law, yet we deem it of the highest importance to the community at large, that there should be uniformity in the decisions in regard to matters of practice.

There being now no bill of exceptions in this record, the case presents no points for our adjudication. The judgment below must therefore be affirmed ; the other judges concurring.


author: Ryland, Judge, Scott, Judge.

text:
    McCartney, Respondent, vs. Shepard, Appellant.
    XL Where general objections only are made to the reception of transcripts of judgments, &c., in evidence, the party objecting giving no reason for the alleged incompetency, and making no specific objection : held, that the evidence offered should be received. The supreme court will not search through a long record or through any other instrument offered in evidence, to see if, possibly, there may not be some objection to its admission which might have been well taken.
    ••2. A promise to indemnify an officer for selling on execution, property claimed by the defendant in the execution to be exempt, by law, from seizure and sale on execution, is good, and that, too, although not in writing. (Scott, J., dissenting: holding that the officer being prohibited by law from selling the furniture and bedding of the head of a family, any contract to indemnify and save the officer harmless from making such a sale is void.)

      Appeal from St. Lords Law Commissioner’s Court.

    The facts are fully set forth in the opinion of the ’court.

      S. A. Holmes, for appellant.
    1. The two justice’s transcripts were improperly admitted, not being duly certified. 2. There was no consideration to support a promise of indemnity. 3. The alleged verbal promise, if any was made, is within the statute of frauds. 4. The plaintiff was not entitled to recover without showing a bond from the defendant. It appears that, in point of fact, a bond was given to the plaintiff’s principal, Maxwell. 5. The plaintiff was not, in any event, entitled to recover, without showing that the property levied upon was exempt from levy and sale.

      R. S. Voorhis, for respondent.
    The promise of a creditor or person interested, to indemnify an officer against the consequences of an improper levy and sale, has always, in cases like the present, been upheld. So also the promise of a mere stranger. (2 Saund. PL & Ev. 577 ; 2 Croke’s R. 652 ; 2 L. Raym. 278; 2 Dow & Cl. 288 ; 2 Speers, 19 ; 8 Ired. 538; 7 Barr, 206; 4 Mass. 68 ; 18 Maine, 79 ; 2 Pick. 284; 14 Pick. 832 ; 9 Humph. 178 ; 12 Mod. 178 ; 5 Pick. 380 ; 7 Mass. 123.) The record in the case of Jlthinsonv.

      Thomas Me Cartney is evidence sufficient to show that Atkinson’s goods were exempt from execution, if it were necessary to show that fact. (6 Johns. 158 ; 5 Pick. 880 ; 12 Mass. 166-; 1 Wend. 145-; 17 Maine, 372 ; 23 Pick. 401; 5 Pick. 380 ; Chit, on Cont. 30.) The judgment against McCartney, in favor of Atkinson, is evidence as to the amount McCartney was damnified, and Shepard having had notice of the suit of Atkinson vs McCartney, and having appeared by attorney, it is conclusive upon him. (1 Wend. 143,146 ; 7 Johns. 168.)
   Ryland, Judge,

delivered the opinion of the court.

This was a suit by McCartney against Shepard, upon a promise made by Shepard to the plaintiff, to indemnify him against selling property under execution. McCartney was acting as deputy constable.

The petition sets forth that two executions were issued by proper authority, on two judgments obtained in suits instituted by the defendant, Shepard, in behalf of Alexander Kays er and Nathaniel Holmes, trustees of Mary Malinda Hill, against John Atkinson, before' a' justice of the peace ; that these executions were issued' by the justice, and' directed to Samuel Maxwell, constable that the plaintiff, McCartney, under and by virtue of said writs'and authority by said constable to him, as deputy of said constable, was about to levy upon certain goods and chattels, as the property of said Atkinson, liable to be taken in execution, when the said Atkinson claimed the said goods to be exempt from execution ; that the plaintiff refused to levy on the goods without an indemnity from the defendant, who was the agent of the plaintiff in the execution ; that thereupon the defendant-, in consideration that the plaintiff, at the defendant’s request, wnnld levy upon and sell the goods and chattels of the said Atkinson, undertook and promised and agreed to indemnify the plaintiff, and save' him harmless from all loss and damage which he might sustain in consequence thereof; that the plaintiff, confiding in the defendant’s promise, did seize upon the goods and chattels of said Atkinson, which were pointed out to him by the defendant, and did sell so much thereof as satisfied the judgments and executions aforesaid.

The plaintiff farther states that afterwards Atkinson brought suit against him in the law commissioner’s court, by reason of the premises, in an action of trespass, for taking and carrying away the goods and chattels aforesaid, under and by virtue of the said executions ; that such proceedings were thereupon had'; that the said Atkinson, on the 16th day of May, A. D. 1851, in the said court, recovered judgment against the plaintiff for taking and selling the said goods and chattels as aforesaid, for the sum of $100, the value of the goods,- and $47 10 costs. By means of which said several premises the plaintiff was bound to pay, and did pay and satisfy, the said sums of money so recovered against him; of all which premises the defendant had notice, yet he has wholly failed to indemnify the plaintiff, and still refuses so to do, to the damage of the plaintiff of $150.

The defendant files his answer to this petition, in which he states that it is not true that two suits were instituted by him at the time stated before said justice against said Atkinson, or that two judgments were obtained by him as in said petition mentioned — denies that any executions were issued in his favor against said Atkinson, or that the plaintiff acted under the authority of any such executions, or that any levy thereof was made by plaintiff. Defendant denies that he ever became bound, undertook and promised the plaintiff to indemnify him for the consideration mentioned in his petition, or for any other, against any loss or damage which he might sustain in consequence of the levying of the said executions, or either of them, upon the supposed property of the said Atkinson. Defendant further says that, as to the recovery of any judgment by said Atkinson against the plaintiff, he has no knowledge of his own sufficient to form a belief, nor as to the time when, in what court, for what amount, nor upon what cause of action, nor whether any such supposed judgment was recovered by due .process of law, and without defence of plaintiff; nor whether the plaintiff has satisfied and paid any such judgment and costs, .and requires strict proof of such matters. He denies that the plaintiff has been damaged in the sums by him alleged, or in any sum, and denies that he is entitled to any judgment. '

The trial was had by the court without a jury, and the court found the facts as follows : “ That in the month of November, 1850, two suits were instituted before Joseph S. Hull, Esq., then a justice of the peace within and for St. Louis county, by the said defendant, acting as the agent and in the name ,of Alexander Kayser and Nathaniel Holmes, trustees of Mary Malinda .Hill, against one John Atkinson ; that two judgments were obtained against the said Atkinson in said suits ; that executions were issued thereon, by the said justice, directed to •one Samuel Maxwell, a constable of St. Louis township, and •delivered to plaintiff, who was deputy for said Maxwell, to be .executed.; that defendant requested the plaintiff to levy upon and sell .the goods and chattels of said Atkinson, then in the ‘house of said Atkinson, to satisfy both executions, alleging •that the said Atkinson was not the head of a family, and that .he, the defendant, would indemnify him against any loss he might sustain by reason of the levy and sale; thereupon, in pursuance of defendant’s request, he levied upon the said At-xinson’s property and it was afterwards sold to satisfy the said executions ; that in April, 1851, the said John Atkinson instituted an action against the said plaintiff, in the law commissioner’s court, because of the levy and sale of his said property, alleging the said plaintiff was guilty of a trespass in that behalf, which said action was prosecuted to final judgment against plaintiff, and he was adjudged to pay one hundred dollars and the costs of said suit, which amounts to $50 10, which judgment and costs were paid by said plaintiff, on the 24th June, 1851.” -Upon these facts the court declared the law to be in favor of the plaintiff, and rendered judgment for him accordingly.

The defendant filed Ms motion for review, setting out all the evidence. This motion was overruled and excepted to, and the defendant brings the case here by appeal.

The finding of the facts by the court supports the allegations in the plaintiff’s petition, and the facts found warrant the judgment rendered thereon.

The only questions in the ca,se arise upon the evidence. If the evidence be competent and will warrant the finding, the judgment must be affirmed.

The defendant objected to the admission in evidence of the transcripts of the two judgments before the justice of the peace, and also of that before the law commissioner, in which Atkinson was plaintiff and the present plaintiff was defendant. These objections are not stated on the record, nor can we see what they were. The record shows that the plaintiff offered the following transcript (which is copied into the record, and is one of the exhibits annexed to plaintiff’s petition, and which, by the reference, this court finds to be the transcript of the judgment before Joseph S. Hull, in favor of Kayser and Holmes, trustees for Hill vs. Atkinson, mentioned in the petition of plaintiff). The defendant objected ; his objections were overruled, and he excepted. The same entry is made in regard to the ob - ejection to the other two records. These objections are entitled to no weight. The courts should not listen to such general and wholesale objections. If the party objecting to the admission in evidence of transcripts of judgments, exemplifications of records, or of depositions, or other such matters, chooses to content himself by a general objection, then the court should admit such evidence. This court will not search through a long record, or through any other instrument offered in evidence, to see if there may not possibly be some objection to its admission which might have been well taken ; nor will we impose that duty on the inferior courts. Let the objecting party specifically point out the causes or defects for which he objects, then the courts will take notice of them ; otherwise they cannot and should not. Such has been the practice of this court for many years, and we will not disturb it.

There was, then, properly before the court the evidence founded on these three transcripts. The oral testimony set out in the bill of exceptions proves the promise to indemnify, and the consequent acts of the plaintiff upon that promise which rendered him liable, and ultimately subjected him to the payment of damages to the injured person.

The promise is good and binding, and has sufficient consideration ; the promise need not be in writing — need not be evidenced by any written instrument.

Had the plaintiff proved that he had given notice to Shepard of Atkinson* s suit, then the judgment would have been conclusive evidence against the defendant; but, as it is, it is only prima facie evidence, and may be rebutted. It is onlj prima facie evidence that the goods and chattels sold by the plaintiff at the instigation and upon the defendant’s promise of indemnity, were not liable to execution; and that the act of the plaintiff, as deputy constable, was tortious. But this prima facie evidence will, unrebutted, become as good as any evidence, and will sustain the judgment of the court below. In such eases as this, any gain to the promisor or loss to the promisee, however trifling, is sufficient consideration to support an express promise.

“ Nor is it necessary that the consideration should exist at the time of making the promise ; for, if the person to whom a promise is made should incur any loss, expense, or liability in consequence of the promise, and relying upon it, the promise thereupon becomes obligatory. ” ( Train v. Gold, 5 Pick. 380.) The evidence in this case would warrant the finding that Shepard had notice of the suit of Atkinson vs. McCartney, but it is not necessary to prove that notice was actually given in order to render the judgment admissible in this case. Had the notice been actually given, then the judgment would 'have been conclusive evidence; but without the notice, it is ©nly prima facie. Authorities .can be found which would reject the judgment altogether, without notice; but we think it most rational and most conducive to the promotion of justice and right between parties, to let such judgments be given in evidence.

Upon the whole case, it is the opinion of a majority of this court, that the judgment below should be affirmed ; therefore,

Judge Leonard concurring, it is affirmed..

Scott, Judge.

In my opinion, the contract of Shepard to indemnify the constable was void, inasmuch .as the effect of it was to save him harmless from the doing of an act which was forbidden by law. The statute prohibits an officer from selling under execution the furniture and bedding of the head -of a family. If an officer is allowed to take an indemnity for violating this statute, the law exempting from execution certain property of the debtor, will be defeated and cease to be a pro - tection to the unfortunate class for whose benefit it was entered. The officer, prompted by a desire to make his fees, when indemnified, will not fail to levy his writ, and take the property forbidden by law, as was -done in this case. The property of the debtor prompts the creditor to indemnify, as he sees that the sale will effectually break him up, and hopes that the blow he strikes will so disable him that he will not have the means of prosecuting a suit. But if the head of the family should be able to sue, and should recover, he, with his family, must in the meantime have undergone all the privations from which he was designed to be protected by the law. . The only way to secure those for whose benefit the exemption was made, is to let the officer know that any indemnity he may take to violate an express law, shall be void in his hands, and that he shall maintain no suit upon it.

The law relating to indemnifying bonds given to an officer for selling under execution property claimed by another, furnishes no pretext whatever in support of the legality of this contract. In the one case, the indemnity is for doing an act which the law tolerates ; in the other, it is for doing an act-which is expressly forbidden.

In my opinion, the judgment ought to be reversed.


text:
    Williams et al., Plaintiffs in Error, vs. Natural Bridge Plank Road Co., Defendants in Error.
    1. The ownership of the soil under a public highway belongs to the adjoining, proprietor, the public having a mere right of way,’ or easement, over the same.
    2-. Where a corporation formed under the act of the general assembly of February 27, 1851, (Sess. Acts, 1851, p. 260,) with the consent of a county court, located a plank road over and upon a county road: held, that the corporation was liable for damage caused by making said road j. as by endangering, by excavations, the stability of houses along the line of said road. The grant by the legislature of the right of locating a plank road, with the consent of the county court, on a county road, does not exclude the-idea that the o-wner of the soil over which the county road passes, should have compensation for any injury he may sustain by converting a county-into a plank road.

      Error to St'. Louis Land Courts

    This was an action by the plaintiffs, some of whom appeared by their mother, as their natural guardian, to recover damages-caused by the construction, by the defendant, (a company incorporated'under the act of February 27, 1851,) of a plank road. The said’plank road was located by the said company;,, with the consent of the county court of St. Louis county, over and upon- a county road of said county which ran over the land of the plaintiffs, and had been used as a public highway’for more than twenty years before the commencement of the said plank road. There was evidence showing, that Mary B. Williams, who appeared as the guardian of the minor plaintiffs, was in possession, together with her children, of the premises to which the alleged injury was done, and gave her- consent to the construction, of the said plank road. It is 'unnecessary to set forth the nature of the damage done, as the plaintiffs were forced to take a nonsuit bj the giving of the following instruction, asked for by the defendant r
    “If the jury believe from the evidence, that the acts and injuries complained of in the plaintiffs’ petition, were done in, and were consequent from the making of the Natural Bridge Plank Road, and that the making thereof was upon a state or county highway or road, with the consent of the county court of St. Louis county, and that said state or county highway or road had been used for twenty years or more immediately preceding the commencement of said plan! road as a public road' or highway, then the jury should find for the defendant.”
    To the giving of this instruction plaintiffs excepted.

      Hudson and Thomas, for plaintiff in error.
    1. The question to be decided here is, whether a common county road or highway, established many years ago, before plank roads or railroads were thought of in this state, can be transferred to a private corporation by the legislature or the county court, for the purpose of being converted into a private road, without making just compensation for the injury done to the owner of the soil by the building of such road. When private property is taken for public uses, just compensation must be made. (1 Geo. R. 530-86 ; 2 Kent, 340.) The legislature had no right, even if they had intended to do so, to enter upon and appropriate limd of private individuals for purposes other than those to which it had been originally dedicated in pursuance of the road law. (3 Hill, 567 ; 18 Wend. 9 ; 25 Wend. 462-4. See also, 2 Strange, 1004.) The intention of the legislature was to pass to private corporations whatever right the public had in a public highway, leaving the question of damages for appropriating the soil to be settled between the owner and the corporation. When the right of way was originally granted, a common dirt road was all that parties contemplated.

      Cline & Jamison, for defendant in error,
    cited 1 Pick. 417 ; 12 Mo. 414 ; 14 Mo. 20 : 15 Mo. 651; 9 Conn. 436 ;■ 8 Cow. 146. This is an action for a lortt and the acts done and caused to be done were authorized by law. (1 Pick. 435; 12 Mass. 482.) The acts done and caused to be done, by defendant, which are complained of by plaintiffs, were done by the permission of Mary B. Williams, the person then in possession of the premises described in the petition.
   Scott, Judge,

delivered the opinion of the court.

It is an error to suppose that the land over which a public road passes belongs to the state or county. The law, for the convenience of the community, has appropriated portions of the lands of individuals to be used as public roads or highways. Subject to this use or easement of the public, the soil over which the road passes remains in the owner, in the same manner as though no appropriation of it had been made. When the land of an individual is taken for a road, whether he gives it voluntarily or sells a right of way over it by claiming and receiving compensation, he must be understood as giving to the public power over it, to an extent that will enable it to construct such a road as the laws in force at the time require or permit to be made. The grant of a right of way for one purpose will not authorize the use of a road for another and a different purpose. One may be willing that there may be a right of way across his land for one purpose, and very unwilling that the same right should exist for another purpose. So, an authority to build one kind of road would not be a warrant for making another kind of road, which would increase the inconvenience and injury resulting to the owner.

At the time it is claimed this land was condemned for a high way, the law in force required that all roads should be laid out and cleared according to the utility of the same, with a proviso that no road should be laid out of a greater width than fifty nor of a less width than twenty feet, and directed that all roads should be cleared of trees one foot through, and of brush and limbs of trees which might incommode horsemen and carriages, and that no stump should exceed one foot in height, and that all wet ground and small water courses should be causewayed or bridged in such manner as to enable horsemen and carriages to pass with facility. (R. C. 1825, p. 695.) Such was the kind of road for which a party yielded up his land. The act under which the defendant proceeded, created corporations for the purpose of making plank roads ; with the consent of the county court, it empowers the corporations to locate their roads on any portions of the county and state roads ; the corporations thereby authorized were allowed to exact tolls and could erect toll gates, and the manner of constructing their roads was to be determined by the boards of directors of the corporations, in such a mode, however, as to " secure and maintain a smooth and permanent road,” the track of which to be made of plank or timber, or partly of both, or macadamizing. (Sess. Acts, 1851, p. 260.) The defendant, a corporation deriving its existence from this act, located a plank road on a county road laid out on the plaintiff’s land, in front of their house, and cut the road so deep as to leave the house on a high elevation, impending the road, and so near as to endanger its stability and incommode the entrance into it. If the defendant has used the right of way taken from the plaintiff's, or those under whom they claim, for purposes injurious to them, and not contemplated at the time the right of way was taken, there is no reason why it should not compensate them for the injury resulting from the use of the right of way in a manner different from that intended when it was first taken. Justice requires that the defendant should pay the difference between the injury resulting from the use of the way for a plank road, and the use of it as a common state or county road. It is clear that plank roads require the removal of more soil, and are constructed in a manner different from that in which county roads were made when this right of way was first created, and that the work put upon plank roads greatly exceeds that which the law required to be put upon county roads. The grant by the legislature of the right of locating a plank road, with the consent of the county court, on a county road, does not exclude the idea that the owner of the soil over which the county road passes, should have damages for any injury he may sustain by converting a county into a plank road. We should not so construe an act of the general assembly as to make it violate the constitution. The consent of the county can only operate to the extent of the power that court had over the road. If an increase of the right to the soil of the road is required for the plank way, why should not the owner, to the extent of the increase injurious to him, have a right to damages as well as any other owner ? It has been held that the legislature have no power to authorize the construction of a railroad across a highway, without providing for a compensation to the owner of the land over which it passes. (8 Hill, N. Y. 367.) So it has been held that an action lies by the owner of land against a railroad company, if, in the construction of their road upon or across a public highway, they raise an embankment by which the owner of the land is obstructed in passing to and from the road, and his property is otherwise rendered less valuable, notwithstanding the charter of the company authorizes the entry upon and use of such public highway ; the license relates only to the road, and leaves the company liable to consequential damages sustained by individuals. (25 Wend. 464.)

The case of Callender v. Marsh, (1 Pick. 417,) is not applicable to that under consideration; it is like that of the City of St. Louis v. Taylor, (14 Mo. Rep.) which arose out of the opening of streets in a city, which stands upon different considerations.

There was no instruction asked or point raised as to the consent of Mrs. Williams to the construction of the road in front of her house ; besides, her consent, as given, if it availed any thing, could not prejudice the rights of others.

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


text:
    Brockman, Plaintiff in Error, vs. Dessaint, Defendant in Error.
    X. A contract to make and deliver a written lease of a building, is a contract relating to land or some right or interest therein, within the meaning of section 1, of the act of 1853, (Sess. Acts, 1853, p. 90,) establishing the Land Court, and the Land Court has exclusive jurisdiction of actions for the'breach of such contracts, and that, too, although the parties stipulate that in case of a refusal to execute the lease agreed upon, a certain sum should be paid by way of stipulated damages.

      Error to St. Louis Court of Common Pleas.

    The facts are sufficiently stated in the opinion of the court.

      C. Gibson, for plaintiff in error.

      S. Reber, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

This is an action for failing to execute a lease for a lot of ground in St. Louis, for the term of three years, on the following agreement:

“This memorandum of agreement, made and entered into this twenty-second day of December, in the year of our Lord eighteen hundred and fifty-three, by and between L. 0. Des-saint, party of the first part, and George Brockman, of the second part, both of the city and county of St. Louis, state of Missouri, witnesseth: That the said party of the first part promises to lease his furniture store, situated No. 116 North Second street, in St. Louis, Mo., for the term of three years, at the rate of twelve hundred dollars per annum, payable quarterly, and also promises to put the party of the second part in possession of the store on the first of March, or at any time between the first day of May, 1854, and not later ; and, if any failure on the part of the said Dessaint for not complying with the above agreement, he hereby promises to pay the party of the second part the sum of one thousand dollars for damages for not delivering and executing a lease for tbe said store ; and tbe said George Brockman promises and agrees, at tbe time above specified, to furnish all the furniture and materials in tbe said store and in tbe shop generally kept in cabinet manufac-tory, and to execute four promissory notes to tbe said Dessaint, payable in the following manner: One at ninety days and one at six months, and' one at nine months, and one at twelve months from tbe time tbe possession is given; the amount of all tbe notes not to exceed twenty-five hundred dollars, for the said stock and materials and furniture in tbe said store No. 116 Second street; and if any failure on the .part of tbe said Brockman in not complying with the agreement mentioned in this contract, he promises to pay to the said Dessaint the sum of $1000 for not fulfilling his contract.
“L. C. DbssaxNT, (seal.)
“ Gboege B'eockmaN,”' (seal.)

Plaintiff claims damages at $1000, with interest and costs. The suit was brought in the St. Louis Court of Common Pleas.

The defendant demurred to the petition, setting forth two causes : First, that the court below had no jurisdiction of the action; secondly, that the agreement was without consideration.

The court sustained the demurrer, and the plaintiff brings the case here by writ of error.

In our opinion, the demurrer was well sustained. This action was upon- a contract relating to land, or some right or interest therein. The Land Court was the proper tribunal. The plaintiff likens' it to an action of debt for the $1000, for stipulated damages ; still,, the action is defended upon a breach of a contract to lease a house and lot, and without wishing to say any thing in regard to the fact whether the damages are to be considered as fixed and determined, there can be no damages unless the contract be broken. It is, therefore, the breach of this contract to make a lease for the term of three years that gives rise to this action. This contract is relating to land — to some right and interest in real estate. The action must therefore, under the broa.d terms of the Land Court law, fall within its jurisdiction. This settles the present case, without going any further.

The judgment is affirmed, all the judges concurring*


text:
    Eddy, Plaintiff in Error, vs. Tennessee Marine & Fire Insurance Co., Defendant in Error.
    1. In an action upon a policy of insurance containing the following provision, to-wit: “ It is agreed that, should the insured change master or owners, notice shall he given By him to the insurers without delay, when the insurers may end the adventure, if they so elect, by returning a pro rata premium held, that the insurers are entitled to a notice of a change of masters, although they may have assented to a previous change of both masters and owners. (Tennessee M. fy JP. Ins. Co. v. Scott 4" Mudge, 14 Mo. Eep. 46', affirmed.)

      Error to St. Louis Court of Common Pleas.

    This was an action on a policy of insurance, containing the following clause: “It is agreed that, should the insured change master or owners, notice shall be given by him to the insurers without delay, when the insurers may end the adventure if they so elect by returning a pro rata premium.” The other facts of the case are fully set forth in the opinion of the court.

      B. A. Hill, for plaintiff in error.
    Mr. Spaulding’s brief in Tenn. M. & F. Ins. Co. v. Scott & Mudge, 14 Mo. 46, relied on. The following additional points made : 1. By the proof offered, it appears that at the time of the transfer of the policy, there was no agreement or understanding as to the particular person who should act as master. This is the very ground upon which this case is put by Napton, J., in his opinion (14 Mo. 47). He says “ the boat was sold and the policy transferred to Scott & Mudge, with the understanding that Scott would take charge of her as master.” The offer of plaintiff to prove the facts stated (see opinion) shows there was 510 such understanding. The assent of the defendant, upon due notice to the transfer of the boat and policy to Scott & Mudge, satisfied the requirements of the provison concerning the change of master and owners. Upon this unlimited transfer, Scott & Mudge had the right to put any competent person in charge as master. If this be so, the provision for the change of masters is satisfied ; for it is based upon a certain master named in the policy, who had ceased to be master by the consent of the defendant, and no future master was nominated in the contract. 'Conditions like this are to be construed most strongly against 'the party imposing them for his own benefit. .(See Kyle v. Si. Louis Ins. Co., 11 Mo. ; Phillips v. Protection Ins. Co., 14 Mo. 220.) By the failure of the defendant to nominate the person who should act as master, after the transfer, a license was impliedly given to plaintiffs to employ any one as master, who was competent. 'Such a license is wholly inconsistent with the idea that any notice should be given to defendant of the person employed. It is a mistake to say that the change of masters changes the risk, where both masters are equally competent. It is not the master who navigates the vessel ; it is the pilot. The pilot alone was responsible for the management of this boat when she was lost.

      B. Bates, for defendant in .-error.
    1. The point arising in this case is the same as that raised in the case of Tenn. M. & F. Ins. Co. v. Scott & Mudge, 14 Mo. 46 : being a suit upon the same policy and for the same loss. 2. The change of masters was a change of the risk, and material therefore to be known to the underwriter to enable him to determine whether he would exercise his reserved privilege of ending the adventure. 3. The plaintiff having taken a nonsuit in the-court below, there was no final judgment upon which a writ of error could issue. (®. 0. 1845, tit. Practice, § 1.)
   Ryland, Judge,

delivered the opinion of the court.

This case is nearly the identical case heretofore decided by this court, and reported in 14 Mo. 46. The plaintiffs in that case were Scott & Mudge. In this, Eddy is the assignee of Scott & Mudge ; it is upon the same policy, and for the same loss. Upon the trial below, in this ^present suit, the plaintiff offered to prove as follows : That the less was by-a peril insured against — was a total loss, and the defendant notified thereof as provided for by the policy. The boat, at the time, was well officered, manned and equipped, and engaged in the navigation covered by the policy ; that at the time of the sale of the boat by Ealer to Scott & Mudge, -nothing was-said or agreed who should afterwards be master ; but the defendant had notice that Ealer would not longer be master ; that Scott was afterwards master, with the knowledge of the defendant,-and without objection by the defendant; that on the trip during which the loss occurred, Scott remained ashore sick, and McKinney, for the trip, was made master, without notice to defendant or knowledge of it, and that McKinney was a competent master ; that since said loss the policy was transferred, as alleged, to Lewis Beach and Joseph A. Eddy, who were, at the time of the transfer of the policy by Scott & Mudge to Beach & Eddy, partners, trading under the style of Beach & Eddy ; that Beach was dead when this suit was brought, and -that Eddy is the surviving parter of said firm, and that the boat, at the time of the loss, was worth $8000.

To this testimony the defendant objected, because, if true, it is not sufficient to enable the plaintiff to recover ; because the offered testimony admits -that the master of the boat was changed by the insured without giving -notice thereof to the insurers. The court sustained this objection and rejected the testimony, to which the plaintiff excepted, and thereupon took a nonsuit. Afterwards, making an unsuccessful motion to set the same aside, he brings the case here by writ of error.

The evidence offered did not take the case out of the principles of the decision heretofore made by this court. The company were still not advised of the fact that McKinney was made master of the boat. They knew that Scott had been, and made no objection to him, nor did they terminate the risk on account of Scott’s being made master. But surely that does not amount' to an assent that anybody else may be made master.

The company had not the opportunity of acting in regard to McKinney’s being made master. They did not know it — could not be presumed to acquiesce in it. There is much force in the remark of the defendant’s counsel, in his brief : “It is time to-stop the practice of trying cases over again every time there is a change of a judge on the bench.”

Being satisfied that the points and objections now made by the plaintiff have been overturned by the case heretofore reported, we content ourselves by referring to that decision.

Let the judgment be affirmed ; the other judges concurring.-