text:
    The State, Defendant in Error, vs. Weiss, Plaintiff in Error.
    ¡1. An indictment under the act concerning groceries and dram-shops, (R. C. 1845,) which charges the defendant with “ selling one quart of liquor to be drank at the place of sale without a license,” is not sustained by proof of selling half a pint without a license, the charge being of an offence as a grocer, and the proof being of an offence as a dram-shop dteeper.

      Error to Cole Circuit Court.

      J. W. Morrow, for plaintiff in error.
    The statute makes •the selling by the quart and by the pint two distinct offences. <R. C. 1845, § 2, 3.)

      Gardenhire, (attorney general,,) for the State.
    The indictment charged the sale of a quart of intoxicating liquor and the absence of all license authorizing the sale. The statute pro-iiibits the sale of any quantity without a license, and that is the fact essential to the charge. The indictment negatived all licenses of every description, and must be construed as charging the defendant, if he sold a quart, of selling without a grocer’s or merchant’s license, and every quantity less than a quart, without a dram-shop or tavern license.
   Ryland, Judge,

delivered the opinion of the court.

At the August term, 1853, of the Circuit Court for Cole •county, the defendant, George E. Weiss, was indicted for a violation of the-statute concerning “Groceries and Dram-Shops.”’ The defendant was convicted on the trial of the indictment at February, term, 1854, and was fined twenty dollars. He moved for a new trial, which being denied, he excepted, filed'his bill of exceptions, and now brings the case before this court by writ of error. The indictment charges that the defendant, Weissr on the 3d day of June, 1853, at the county of Cole, unlawfully did sell intoxicating liquor and fermented drinks, to-wit: one quart of whisky, one quart of brandy, one quart of wine, one quart of gin, one quart of rum, one quart of ale, one quart of beer, and then and there permitted the same to be drank at the place of sale, to-wit: at the county of Cole aforesaid, without the said Geo. F. Weiss then and there- having a= grocer’s license, a dram-shop license, a merchant’s license, a tavern license-, or any other kind of license, continuing in force, authorizing.him so to do, contrary, &c. On. the trial, it appears from the bill of exceptions that the State offered to prove, in order to sustain the indictment, that the defendant had sol'd one half pint of beer. To this evidence the defendant objected the court overruled the objection, and permitted the State to prove that the defendant had sold within a yéar before the finding of the indictment, one half pint of beer, and thereupon the jury found the defendant guilty.

The question, is, as to the admissibility of this evidence. The charge is, the selling without license one quart of whisky, &c., and permitting the same to.be drank at the place of sale. The charge does not consist in the selling alone, but in that, and also in the permitting the samo to be drank at the place where it is soldi.

This charge is obviously meant to be against the defendant, as a grocer. A grocer is not permitted to sell in any quantity less than a. quart * nor is he permitted to suffer what he sells to-be drank at the place of sale. The dram-shop keeper may sell, if he has a license, any quantity under ten gallons, and' he may Suffer it to be drank at the place- of sale.

If there be any difference between the grocer and the dram-shop keeper, this evidence ought not to have been admitted. There is obviously a distinction between the persons designated — a grocer and a dram-shop keeper, in our statute. And, although the defendant is not charged as a grocer, nor as a dram-shop keeper, in so many words in the indictment; yet, the acts charged to have been done by him are those prohibited by law to be done by a grocer.

The offence charged in this indictment consists in selling and in permitting the liquor sold to be drank at the place of sale. The proof showed the defendant to be guilty of a different of-fence from the one charged, and therefore was improperly admitted. The attorney general likens it to the case where the offence is charged to consist of selling any quantity of liquor without license, and the pleader inserts the larger quantity, and proves the guilt by sale of a less quantity. Were this such a case, doubtless it would be competent to prove the sale of a ^quantity, either greater or less than the amount charged. But we conceive this is an entirely different case ; here, one offence is charged, and the State seeks a conviction by proving a different offence. It is not subject to the principle that the greater contains the less. But here, the proof shows an offence different from that charged, and for which the defendant is liable to be prosecuted and punished, and the conviction on this indictment would not be a bar to another for the offence mad'e out by the proof in this case.

Whether wisely or not, our statute law makes a difference between the grocer and the dram-shop keeper. The grocer is not permitted to suffer any liquor he may sell, either with or without license, to be drank at the place of sale. The dram-shop keeper may suffer it to be drank at the place of sale ; and indeed, this permission, “ to be drank at the place of sale,” is now the principal difference between the grocer and the dram-shop keeper. The grocer cannot sell less than a quart; the dram-shop keeper may sell any quantity less than ten gallons at a time. The one cannot les the liquor be drank, the other may, at the place of sale. The offence here is the selling and suffering the liquor to be drank at the place of sale, obviously intended to be against the grocer ; the proof is against the dram-shop keeper only.

Upon the whole, then, we think the court below erred in suffering the proof to be given to the jury; its judgment is reversed,

Judge Scott concurring, he being the only judge with me on the bench at the time this case was argued.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    The State, Appellant, vs. Williamson, Respondent.
    1. An indictment under the 34th section of the 8th article of the act concern- . ing crimes and punishments, (R. C. 1845,) which charges the defendant with selling “an intoxicating liquor, to-wit: one quart of whisky, on Sunday,” is sufficient, although it does not state in the words of the statute that lit was a “ fermented or distilled liquor.”

      Jippeal from Laclede Circuit Court.

    The defendant was indicted for selling liquor on Sunday.. The indictment charged that the defendant, “ on, &c., at, &c., with, Sro., did then and there sell to William Kudy and John McGenis, intoxicating liquor, to-wit: one quart of whisky, on the first day of the week, commonly called Sunday, for the price and sum of twenty cents, contrary,” &e. A motion to quash the indictment was sustained by the Circuit Court, and the State appealed.

      Gardenhire, (attorney general,) for the State,
    that the indictment was sufficient, cited State v. Munger, 15 Vermont, 295. State v. Hereford, 13 Mo. Rep. 3.
    No appearance for respondent.
   Leonard, Judge,

delivered the opinion of the court.

This indictment is sufficient. The statute (R. C. 1845, tit. Crimes and Punishments,” article 8, see. 24,) prohibits the selling o£ any fermented or distilled liquor on tbe first day of the week, commonly called Sunday, and the indictment charges the defendant with selling “ an intoxicating liquor, to-wit: one quart of whisky, on Sunday.” It is believed the general rule now is, that it is enough to describe the offence in any language that brings the case within the statute. Formerly, greater nicety prevailed upon this subject, and at an early period in our law the rule-seems to have been that the very words of the statute must be used in cases of felony (2 Hawk. Pleas of the Crown, 354) ; but this is now otherwise, and the rules of common sense are allowed to prevail. In the King against Amy, (2 East. R. 34,) where the question was as to the sufficiency of the allegations in the indictment to bring the case within the statute, Lord Kenyon said : “ In certain cases, it is true there must be known technical words used in order to describe particular offences, such as murdravit, in murder ; bur-glariter, in burglary ; rapuit, in rape. These having been long ago established to be necessary, must be abided by. But there is no rule of law which says there must be technical words in every case, nor am I inclined to multiply the instances ;” and in The King against Stevins & Agnew, (5 East. 258,) upon asimilar question, Lord Ellenborough said: “Every indictment or information ought to contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnancy, and, except in particular cases, where precise technical expressions are required to be used,, there is no rule that other words shall be employed than such as are in ordinary use, or that, in indictments or other pleadings, a different sense is to be put upon them from what they bear in ordinary acceptation.”

We have the opinion of Hale, than whom a more humane-judge never sat in a court of justice, upon such niceties, expressed about two hundred years ago. He remarks, (2 Pleas of the Crown, 193,) that, “ In favor of life great strictnesses have been, in all times, required in points of indictments, and the truth is, that it is grown to be a blemish and inconvenience-in the law and the administration thereof; more offenders es~ cape by the over-easy ear given to exceptions in indictments than by their own innocence, and many times gross murders, burglaries, robberies and other heinous and crying offences escape by these unseemly niceties, to the reproach of the law, to the shame of the government, and to the encouragement of villany, and to the dishonor of God.”

The question here is, whether the act prohibited by the statute is sufficiently described in the indictment. The prohibited liquor is “ any fermented or distilled liquor,” and whisky is the liquor charged to have been sold ; and, as the courts are presumed to be acquainted with the meaning of English words, we must take notice that whisky is a spirit distilled from grain, and one species of the prohibited commodity. We are not required to shut our eyes to what we do know, and bring reproach upon the administration of the law, by giving way to objections so utterly destitute of any merit.

We do not know that this is the point upon which the case was decided in the Circuit Court, but it is the only matter to which our attention has been called, and we see no other objection to the indictment.

The judgment is reversed, and the cause remanded;

Judge Ryland concurring ; Judge Scott dissenting.


author: Ryland, Judge, Scott, J.,

text:
    The State, Appellant, vs. Havely, Respondent.
    1. A court may say, as a matter of law, upon demurrer to a plea in abatement to an indictment, that “ Owens D. Ilavely” and “ Owen D. Haverly’> are idem sonans. (Scott, J., dissenting, holding that it was a question of fact for a jury.)

      Appeal from Cooper Circuit Court.

    Gardenhire, (attorney general,) for the State.
    There was no misnomer. The names in the indictment and plea are the same in sound. But, though different in sound, it would make no difference. The true question is, not whether the names differ in sound, but whether they are the same in derivation or common use. (1 Wash. C. C. R. 290. 2 N. Hamp. 558. 3 Ohitty’s Prac. 170. 13 Mo. Rep. 92. 14 Mo. Rep. 417.)

      W. Adams, for respondent.
    1. No writ of error lies. (R. C. 1845, tit. “ Practice and Proceedings in Criminal Cases,” art. 8.) 2. The plea was good. There was a misnomer, both in the Christian and surname. There is as much difference between Owens and Owen, as between Adams and Adam. They are not idem sonans, but distinct names. (Bex v. Foster, 1 British Grown Cases, 1 Russ. & Ry. 412. 2 N. Hamp, 558. 13 Johns. Rep. 486. 1 East, 542. 16 East, 112.)
   Ryland, Judge,

delivered the opinion of the court.

Owens D. Havely was indicted at the March term, 1854, of the Cooper Circuit 'Court, by the name of Owen D. Haverly, for selling fermented and distilled liquor, to-wit: one quart of whisky, one quart of wine, one quart of ale, one quait of beer, on the first day of the week, commonly called Sunday, contrary, &e. He appealed, and pleaded the misnomer in abatement ; that he is named and called Owens D. Havely, and not Owen D. Haverly.

To the plea, the State demurred ; the Circuit Court overruled the demurrer, and the State not further answering, the court rendered judgment in favor of the defendant, finally discharging him from the indictment. The State excepted to the rulings of the court, and brings the case here by writ of error.

The State contends that there is no misnomer; the names in the indie'ment and in the plea are the same in sound; but if not the same in sound, they are the same in derivation or common use, and-that a difference in spelling avails not.

The defendant contends that the plea is good; that there is a misnomer both in the Christian and surnames ; that the defendant’s Christian name is Owens and not Owen ; that these are not idem sonans, but distinct names. So also with the surnames — Havely and Haverly-

There are two- ways of answering the matter set up in the plea in abatement; where the names, although spelt differently, have the same sound or have the same derivation, they are-considered the same name; and a demurrer to the plea, in such-cases, is the proper way to- dispose of it. The court can see at once that the names have-the same derivation, or have the same sound, and that in law there is no misnomer.

The other way to take-advantage of the plea is, to reply that the defendant is known as well by the one name as the others and if the jury find- this to be so, it is a good''answer to the plea.

In this case, we consider the names the same in .sound, and that the court shouldfhave sustained the demurrer. The decisions are numerous on this subject, and somewhat contradictory. I will notice a few of these decisions in the English courts, as well as those of the Union. In Rex v. Foster, (1 British Crown Cases, 412, reported also in Russell & Ryan,)., the prisoner was tried before Mr. Baron Garrow, at the Maid-stone Lent assizes, in. the year 1820$ for committing an unnatural crime on one John Whyneard. The person on whom this-crime was committed;, being called as a witness, said his name-was spelt Winyard, but was pronounced Winnyard. The prisoner was convicted and received sentence of death, but execution was respited in order that the opinion of the judges might be had on the objection that the name of the witness was mis-spelt. In Easter term, following the conviction in 1820, the-judges held the conviction, right. This could- only be on the-ground that the name of the person, on whom, the offence was committed, that Whyneard and Winyard are the same, either in sound or derivation, and that this could be determined by. the court.

In Regina v. Davis, (6 British Crown Cases, 281,) the indictment was for larceny; the property stolen was laid as the-property of Darius Christopher. The prosecutor, when called,, said his name was Trius. In this case, it was held entirely a question for the jury whether the names sounded alike ; therefore, as it had been treated at triabas a question of law for the-court, the conviction was quashed. This case is not reconcilable with that of Rex v. Foster, above cited. In this case*, the court said the question for the court is, “ are the words, ‘-Trius’ and ‘Darius’ pronounced so as to produce the same-sound? If so, the conviction is to stand; if not, the prisoner is to be entitled to an acquittal.” The court held the conviction must be quashel, as the chairman of sessions had not treated the question respecting the similarity of sound of the two names as a question of fact for the jury, but as a question of law, which it was for him to determine ; and this court could not affirm, as a matter of law, that the two names sounded alike. Here, this case is settled on the principle that, whether the two names are in sound, alike, so as to come under the rule of idem sonans, is left to the jury, and not to the determination of the court. In Foster's case, the court determined it; whether the two names are, in sound, the same, has been often settled by the courts. They have determined this matter without a jury in numerous cases. In Davis' case, the question was, “are the words ‘Darius’ and ‘ Trius’ pronounced so as to produce the same sound ?” and this was a question for the court. Now had the court thought those words produced the same sound, the conviction would have been sustained ; but the court could not say those names were idem sonans, because, in fact, they are two different words in English, and whether in the Dorset dialect they were sounded alike, was a question of fact for the jury. This court has held, on demurrer, that the names of “Hudson” and “Hutson” were of the same sound, and were one and the same name. It has been held that “Reynoll” for “Reynolds” is no misnomer — same derivation. So, “Tither Leigh” for “ Tythe Leigh” is no misnomer — the same sound. (See Chitty’s Gen. Pract. 3d vol. p. 171.) So has Wilkerson for Wilkinson been considered no misnomer ; Robertson — Robinson — Roberson ; Hudson — Hutson—all ths-same in sound, and no misnomer in using one for the other. (13 Mo. Rep. 91.) Hinsdale, instead of Hinsdall; Benedetts for Beniditts. The name of Allen is now spelt, some seven or eight different ways. (2 N. Hamp. Rep. 558.) Franciscus and Frances ; Garet, Gerald and Gerard are the same, idem sonans, or the same in derivation. (1 Washington Circuit Court Rep. 290.)

In England, pleas of misnomer in abatement are abolished in civil suits, and in lieu of them, the defendant, upon his affidavit, may have his true name inserted in the record at the plaintiff’s costs. And, in criminal cases now, these errors, whenever suggested, are corrected by amending the indictment according to .the truth; and they áre unavailable, if not amended. (7 Geo. IV. 1 Archb. Crim. Pract. III.)

Wherever, then, in our opinion, the name is the same in sound or in derivation, this may be determined by the court, on demurrer, although spelled differently. But where they are different names, both in sound and derivation, there the party who answers the plea must roply that the person pleading the misnomer is known as well by one name as he is by the other.

We consider the names Owens and Owen, as Christian names, and as surnames, so nearly the same, and so familiarly used, that they may he taken as one and the same in sound. The insertion of the letter r,” in Havely, making it Haverly, according as the name is pronounced, can scarcely be discerned. If the name be pronounced as a trisyllable, it is almost identical in sound.

The question in this case involves the mode of answering the plea. Should the State have replied, that the defendant was known as well by the one as the other ? or is the name in the indictment and the name in the plea the same in sound or in derivation, so that the court can say so on demurrer? Must the State rely upon a fact, and therefore reply to the plea and leave the fact to be found by a jury; or, is this a case where the matter involved is a question of law, which the court can determine ? We consider this a case involving a question which the court can properly determine, and that the demurrer has raised that question. We are of the opinion, that the Circuit Court erred in overruling the States’ demurrer to the plea of misnomer ; that the two names are of the same sound, and should have been so held by the court.

The judgment below is reversed, and this cause remanded for further proceedings ;

Judge Leonard concurring ; Judge Scott dissenting.

Scott, J.,

dissenting. This is a small matter, but it had as well be established upon principle ; as in establishing it upon principle we will prevent parties from coming to this court with such questions. Whether two hawks or two horses are alike is not a question of law, but a matter of fact. So, whether two names are the same, or whether their sound is the same, is a question of fact. Whether two words sound alike in the pronunciation, is no question of law, but is a matter of fact. It is a rule of law that, if two names sound alike in their pronunciation, although they are spelt differently, yet they are the same name. But whether in sound they are in fact the same, is a question of fact, and a question to the solution of which no law learning affords the least assistance. It is a question of fact ; it should, in all cases, be submitted to a jury, and the courts should never take upon themselves to decide it.

In the case of Regina v. Davis, (6 British Crown cases,) it was held that it was entirely a question for a jury whether two names sounded alike. In the case of Rex v. Foster, (1 British Crown cases,) the defendant was tried for an unnatural crime, and there was a conviction : and the question of the identity of the names being submitted to the jury, it received the approbation of the judges. Our reason tells us that, whether any two things are alike, is not a question of law, but a matter of fact. It makes no difference whether the things are compared through the medium of our eyes or ears, or any other sense; it is equally a matter of fact, whether they are alike.

The court, in my opinion, did right in overruling the demurrer filed for the State. The State should have taken issue on the plea, and the matter should have been submitted to the jury.


author: Ryland, Judge. Scott, Judge.

text:
    The State, Plaintiff in Error, vs. Blankenship, Defendant in Error.
    1. “ Blankenship” and “ Blackensldp” held idem sonans as matter of law.
    (Scott, J., dissenting. See State v. Savely, ante.)

      Appeal from Cass Circuit Court.

    Coleman N. Blankenship was indicted by the name of Coleman N. Blackenship, for breaking open a letter. A demurrer to a plea in- abatement for misnomer was overruled by the Circuit Court, the indictment abated, and the defendant discharged.
    Gardenhire, (attorney general,) for the State.

      W. Adams, for defendant in error.
   Ryland, Judge.

This case involves the same questions as have been just settled in the case of the State v. Havely. The judgment of the Circuit Court is reversed, and the case remanded. See opinion in Havely’s case, which is adopted for this case, rmitatis mutandis; Judge Leonard concurring ; Judge Scott dissenting.

Scott, Judge.

For my view, with regard to this ease, reference is made to my opinion in the case of State v. Havely, decided at this term.


author: Ryland, Judge,

text:
    The State, Respondent, vs. Berry & others, Appellants.
    1. An indictment under the 6th and 8th sections of article 8, of the act concerning crimes and punishments, (B.. C. 1845,) which charges that the defendants “ assembled and agreed,” &c., is sufficient.
    3. A joint fine assessed against several parties jointly indicted, is erroneous. A separate fine should be assessed against each.

      Appeal from Lawrence Circuit Court.

      F. P. Wright, for appellants.
    The indictment is insufficient. It neither charges that the defendants assembled “ with intent,” nor that, “ being assembled,” agreed, &c. The character of the violence intended is not stated. (9 Mo. 285.) A threat is not an act prohibited in the sixth section. (14 Mo. Eep. 147.) 2. The fine should have been separately assessed. .(10 Mo. Eep. 440. 7 Dana, 229.)
    Gardenhire, (attorney general,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendants were indicted by the grand jury of Lawrence county, at the October term of the Circuit Court, in the year eighteen hundred and fifty-two, for an alleged violation of the statute (art. 7, secs. 6 and 8, .p. 394-5, E. C. 1845,) concerning Crimes and Punishments. They were tried at the October term, 1853, and were found guilty. The jury returned a verdict of guilty generally against all three of the defendants, and assessed their punishment at eighty-one dollars.

The defendants moved for a new trial, which was overruled; they also moved in arrest of judgment, which being overruled, they bring the ease here by appeal.

The appellants rely for a reversal of the judgment below, upon two grounds principally — the insufficiency of the indictment and the illegality of the judgment.

1. The indictment charges that the defendants, Zephaniah Berry, William Berry, and Constantine Berry, late, &c., heretofore, to-wit, &c., at, &e., “ with force and arms, did then and there unlawfully assemble together, and mutually agree to assist one another in doing violence to the person of one David A. Maxwell, with force and violence, by threatening to whip and kill the said David A. Maxwell, contrary," &o.

The 6th section of the 7th article, above refered to, declares : “ If three or more persons shall assemble together with intent, or being assembled, shall agree mutually, to assist one another to do any unlawful act with force and violence, against the person or property of another, or against the peace, or to the terror of the people, and shall accomplish the purpose intended, or do any unlawful act in furtherance of such purpose, in a violent or turbulent manner, every person so offending,” &e.

The 8th section declares: “If three or more persons assemble with intent, or being assembled, agree mutually, to assist each other in the doing of any act prohibited by the 6th section of this article, and in the manner therein specified, although the purpose intended or agreed upon be not accomplished, nor any act done, nor any movement or preparation made in furtherance thereof, every person so offending shall, on conviction thereof, be adjudged guilty of a misdemeanor, and- be punished,” &c.

The indictment charges that the defendants did unlawfully assemble together, and mutually agree to assist one another, in doing violence to the person of one David A. Maxwell, with force and violence, by threatening to whip and kill the said David A. Maxwell.

The indictment, in our opinion, is sufficient. There is no necessity to aver any intent in the assembling together in this case. Here, the defendants are charged with unlawfully assembling together, and with mutually agreeing to assist each other in doing violence to the person of David A. Maxwell, by threatening to whip and kill him.

The charge in the indictment is macle sufficiently clear and explicit, and is an offence within the sections of the article in the act above specified. There is no force in the objections taken, therefore, to the indictment; the record shows a prosecutor endorsed on the indictment.

2. The remaining objection extends to the judgment in this case ; the verdict being a general one of guilty against all the defendants, and containing a fine of eighty-one dollars against them all jointly. The judgment is rendered against them for the fine of eighty-one dollars jointly. It is a judgment for the whole amount of the fine against all the defendants, in accordance with the verdict. The appellants contend that this verdict and judgment are vicious, and cannot stand; that the judgment should have been arrested.

This court, after much reflection, and with reluctance, must sustain this objection. Though the indictment charges the of-fence as a joint one, and, indeed, there must be three or more persons charged, in order to constitute the offence under our statute, and these three or more make but one offence, yet it is in accordance with the weight of authority that each one of these defendants shall only be liable for a specific fine assessed against him, separately, and not jointly ; and that, accordingly, the judgment must be entered for a specific fine against each defendant. The court below could not enter a judgment jointly against all three for the sum of eighty-one dollars ; nor would it be right or proper to collect that sum of one defendant, in discharge of the entire judgment; nor proper to collect that amount of each one of the defendants separately. This case does not occur in'the English practice ; for there, the jury find the guilt only of the defendants, and leave the amounts of their punishment to be assessed by the courts of that country, in accordance with the law. The courts, therefore, punish each defendant, as in their opinion may be proper, from the nature and amount of his guilt, as proven before them during the process of the trial. The State v. John H. Gay & others, sustains this view, (10 Mo. Rep. 440;) and this case is sustained by 2d Hawk. P. C. p. 638. The case of The State v. The Baradas, (13 Mo. Rep. 94,) does not militate against this doctrine. There, the fine was for the minimum sum, and was joint against the two defendants. The error of the court was in favor of the defendants, as they were required to pay, by its judgment, a fine of fifty dollars, the two, instead of fifty dollars each. In delivering the opinion, in the case of The State v. The Baradas, the judge, who pronounced the opinion of the court, stated that, without giving any sanction to the doctrine about the joint fine in the case of Gay et al., in 10 Mo. Rep., as be considered that question not before tbe -court in that case, be would merely state, for tbe benefit of tbe defendants, that tbe judgment in this case is for tbe minimum punishment, the fine being not less than fifty dollars, nor more iban five hundred. Tbe judgment that these defendants then pay fifty dollars, as tbe fine, instead of each one to pay that sum, cannot be said to be to the injury of them, or to their prejudice. Tbe error of tbe court below, if there be any, was .clearly in their favor, and it is with such ill-grace that they complain of it here, that this court is disposed to pay little attention thereto.” Had the fine of eighty-one dollars been the minimum punishment for the offence in this case now before us, it would have been decided in accordance with the case of The State v. The Baradas.

We are satisfied that the law is against this judgment of the lower court, and that it must be reversed, and the cause remanded for a new trial, in accordance with the principles and doctrine here laid down ; the other judges concurring.


author: Scott, Judge,

text:
    Burgess, Respondent, vs. Quimby, Appellant.
    4. Cmin v. Smith £r Ken, affirmed, see ante, p. 444.

      Appeal from Platte Circuit Court.

    Action under the 8th article of the practice act of 1849, for the specific recovery of a horse. The plaintiff produced evidence tending to show that he loaned the horse to one Johnson, from whom defendant purchased, and proved declarations of Johnson, made while he was in-possession of the horse, that plaintiff was the owner, and to this last evidence defendant excepted. The defendant proved by Johnson that he bought the horse of plaintiff, and remained in possession until he sold to defendant.

      The following instruction was given for defendant :
    “ 2. If plaintiff knew of Johnson’s acts of ownership, without asserting his claim, and defendant purchased without notice, he was entitled to a verdict.”
    There was a verdict for plaintiff.
    Gardenhire, for appellant.
    Vories, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The only point presented for our determination in the record is, whether the declarations of Johnson, under whom the defendant claims, made while he was in possession of the horse, are evidence against the defendant.

This question has frequently been before this court, and has received the uniform determination that such evidence is admissible. (See the case of Cavin v. Smith & Kerr, decided at this term of the court.) The instruction, secondly, given for the defendant, was warranted by no evidence, and does not correctly state the proposition which it affects to do. Notwithstanding this advantage, there was a verdict against the defendant.

With the concurrence of the other judges, the judgment will be affirmed.


text:
    Megehe, Respondent, vs. Draper, Appellant.
    1. A. sued B. for causing to be sold under an execution against A. certain' property selected and claimed by A. as exempt from execution under the act of February 6,1847, (see Sess. Acts, 1847, p. 52). Held that it is no defence to this action that A., at the time of the levy and sale, had other property, not specifically exempt from execution, more than sufficient to pay the debt, which he concealed from the officer, so as to keep it out of the reach of the execution.

      Appeal from, Hannibal Court of Common Pleas.

    The case is sufficiently stated in the opinion of the court.

      Richmond, and Allen, for appellant.

      Harrison & Hawken and Cooke, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The defendant, Draper, caused the plaintiff’s property to he levied upon under and by virtue of an execution. The plaintiff claimed the property, to the value of f>150, as exempt from execution, under the act of the legislature, of February 6,. 1847, and the property was duly appraised. The defendant afterwards caused the property to be sold under the execution, and this suit is brought for that wrong.

The defence relied upon is, that the plaintiff, at the time, had other property not specifically exempt from execution, more-than sufficient in value to pay the debt, which he concealed from-the officer, so as to keep it out of the reach of the execution.

Upon the plaintiff’s motion, this part of the defendant’s answer was stricken out, and the defendant excepted. Upon the trial, the defendant offered to prove the same matters before-the jury; which proof was rejected, and the defendant excepted. There was a verdict for the plaintiff, and judgment thereon.

The defendant moved for a new trial, which was refused,, and he brings the case here by appeal.

1. The only matter for our consideration involves the act of the court below in rejecting the evidence on the trial, and in striking out the answer, or that part of the answer setting up-the above matters in defence. If the court properly struck out that part of the answer, then it was proper also to reject the evidence in relation to the same subject matter.

This court is of opinion, that the matter set up in the defendant’s answer was well stricken out. It affords no defence to the plaintiff’s action. The statutes reserving and exempting, certain specific property from execution, and property real, personal and mixed, from execution, to a certain amount in value, were not made alone for-the benefit of the debtor. He must be the head of a family. The legislature had an eye_ the family of the debtor, to his household, and prevent as much suffering and misery from entering into%u<$gT abodes as they could, by saving to them the small mentioned in the statutes. These statutes, so productivdjoiif good to the classes which generally so much need deserve and meet with liberal interpretation from the courts.

It would at once destroy all the intended benefit of these statutes, to suffer such a defence to be set up against those-claiming the protection under them. If the defendant in the execution, who claims the property to be exempt, has concealed and hid, or placed beyond the immediate reach of the officers of justice, his property, and this fact he known to the plaintiffs in the execution, let them ferret out the hidden property and take steps to reach it, and subject it to the process of the law. The burden should be on their shoulders. If the plaintiff here in the execution asserts that the defendant has concealed his property, let him search out the property with his writ of execution. He can garnishee under execution the persons in whose possession the property is supposed to be. Let him take this course. He has no right by act to destroy the obvious intention of the statute in favor of the helpless and needy, when he can so easily, by garnisheeing, reach the hidden or concealed property. It will not do to say that he cannot find it, or does not know where it is. He charges that the defendant has concealed it; then the law gives him means to pursue it. Let it onee be understood that such an allegation in a defendant’s answer, in cases like the present, will be availing, and you might as well strike the whole provision exempting property from execution from the statute book.

The judgment below is affirmed ; the other judges concurring.


text:
    Southerland, Respondent, vs. Warner’s Administrator, Appellant.
    1. Judgment affirmed, because no exceptions were saved in a case originating 'before a justice of the peace.

      Appeal from, Jefferson Circuit Court.

      Charles Jones, for appellant.

      P. Pipkin, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The record shows that this was a.suit originally commenced befóte a justice oil the peace, and an appeal thence to the Circuit Court, where the cause was tried by the court without a jury, and the cou-rt found for the plaintiff.

The record has no instructions saved, nor is there any thing saved by which any question of law arises in the case. This court will not review the questions of fact.

It appears that defendant’s counsel offered some instructions, which the court would not permit to be put on the record, because the court observed that the instructions thus offered were not those which the court passed upon. There are no instructions preserved. Then, under the numerous decisions of this court, this judgment must be affirmed. (18 Mo. 476. Ib. 479. Ib. 509. 20 Mo. 276, Todd v. Aiken.)

The other judges concurring, the judgment is affirmed.


author: Leonard, Judge, Scott, J.,

text:
    Stewart, Appellant, vs. See, Respondent.
    1. Where a plaintiff, in a petition under the practice act of 1849, not only prays damages for the breach of a contract, hut also the cancellation of a note given under the contract, and has judgment upon both prayers, it is error to tax the costs against him, although the amount of damages recovered is below the jurisdiction of the court- The 12th section of the act concerning costs, (R. C. 1845,) does not apply in such a case. (Scott, X, dissenting, holding that the costs were properly taxed against the plaintiff, because the petition showed no ground for the equitable relief sought and obtained$ and because the judgment for the cancellation and delivery up of the note was entered in pursuance of an agreement between the parties, by which the judgment of the court, upon the prayer of the cancellation of the note, was made to depend upon the verdict of the jury upon the claim for damages for the breach of the contract.)

      Appeal from Montgomery Circuit Court.

    Action to recover damages for tire breach of a contract to transport the plaintiff to California, and to procure the cancel-lafcion of a note given pursuant to the contract. It appeared in the petition that a suit on the note was pending on appeal from a justice of the peace.
    The bill of exceptions shows that it was agreed between the parties that the judgment of the court, upon the prayer for a cancellation of the note, should depend upon the verdict of a jury upon the claim for damages for breach of the contract. The jury returned a verdict for the plaintiff for $12 33, upon which a judgment was entered for that amount, and also that the note be delivered up and cancelled; and the costs were adjudged against the plaintiff. Afterwards, the plaintiff moved to tax the costs against the defendant. His motion being overruled, he excepted and appealed to this court.
    Broadhead, for appellant.

      Glover & Richardson, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The judgment given against the plaintiff here, for costs, is erroneous and must be reversed. The general rule is, that, where the plaintiff recovers, he is entitled to costs. (R. C. 1845, tit. Costs, art. 1, sec. 6.) But the 12th section of the same act made it an exception to the rule that, “ in actions of debt, covenant and assumpsit, and other actions founded on contract, when the recovery is below the jurisdiction of the court, unless that result be produced by a set-off, costs shall be adjudged against him.'’

This suit, under our new practice act, was for a compensation in damages, and also for specific relief by a judicial annulment of the promissory note the party had given pursuant to the contract, and the relief he obtained was $12 33 by way of damages and the specific relief prayed for. This, therefore, is not a case where, by mere force of the 12th section, the defendant is entitled to a judgment against the plaintiff for costs. Here are two causes of action set up, one of which is different from those specified in this section, and the plaintiff has judgment for relief upon both causes of action, and we are here to inquire into the propriety of the relief granted.

We are told, however, that, under the 8th section of the 12th article of the new code of procedure, when there are several causes of action united, the court may award separate trials, and when there are separate trials, the court is bound “to award costs against the unsuccessful party, unless, for good cause, it is otherwise ordered;" and it is insisted that here was a separate trial in relation to the cause of action for the damages, and that the plaintiff was the unsuccessful party within the meaning of this section, because he recovered less than was sufficient to entitle him to costs under the 12th section of the cost act of 1845.

We are hardly at liberty so to deal with the express words of this law. This is probably a case not provided for in the change made in one mode of proceeding, but we cannot remedy the omission. The party, having sued upon two causes of action and recovered in both, although for one cause his recovery is less than would have entitled him to costs, has not thereby subjected himself to the costs of this case, much less to all the costs.

The judgment must therefore be reversed, and Judge Ry-land concurring, it is reversed, and the cause remanded, that a judgment may be given there in conformity with this opinion.

Scott, J.,

dissenting. It appears that there was a suit pending between plaintiff and defendant, in which the present plaintiff was defendant. In that suit, it would have been competent for the plaintiff here to have obtained relief against the note, by showing a failure of its consideration. Under these circumstances, he brought this suit against the defendant to recover damages for the breach of the contract out of which the note had its existence, and, without setting out any ground which, according to the rules of equity, would entitle him to have the note delivered up, he makes such a prayer in his petition. Having recovered damages below the jurisdiction of the court, tire costs, under the statute, were awarded against him. Of this, he complains. I see no ground for reversal in this. Surely, the plaintiff could not avoid the statute condemning him to the payment of costs, by inserting in the close of his petition a prayer for relief, when the case, as made in the petition, furnished no ground for the relief sought. No one pretends that a mere failure of consideration is a ground for the equitable relief of delivering up an instrument to be can-celled. But, it is said, that the prayer for the relief was granted by the judgment, and therefore, though erroneous, yet the plaintiff should have his costs. Without stopping to inquire into the merits or validity of such a defence, it is a sufficient answer to it, that the judgment for the delivery up of the instrument was entered in pursuance of an agreement between the parties, by which the entire controversy was adjusted, leaving the matter of costs unnoticed. If this judgment can be reversed on the ground alleged, then all that a plaintiff has to do, to defeat the statute condemning him to the payment of costs, when he recovers a sum below the jurisdiction of the court, is to write his petition for a legal cause of action, and, in addition to the relief suitable to his cause of action, as stated, insert a prayer for some equitable relief; and if he recovers a sum under the jurisdiction of the court, the simple prayer for equitable relief, though no case suited to such relief is stated, will save him, in the very teeth of the statute, from the payment of costs. Indeed, it would seem that this prayer was made with some such a view, for there was no necessity for it in this action ; there was a suit pending in which a full defence to the note could have been made, and' there was no necessity for mentioning it in connection with this suit.


author: Leonard, Judge. Scott, J.,

text:
    Skinner, Plaintiff in Error, vs. See, Defendant in Error.
    1. Stewart v. See, affirmed, see ante.

      Error to Montgomery Circuit Court.

    Broadhead, for plaintiff in error.

      Glover & Richardson, for defendant in error.
   Leonard, Judge.

This case is similar to the case of Stewart against See, decided at this term, and is settled upon the same principles. Judge Ryland concurring, the judgment is reversed, and the cause remanded, that a judgment may be given there in conformity with this opinion.

Scott, J.,

dissenting. For my opinion in this case, reference is made to the case of Stewart v. See, decided at this term.


text:
    Rogers, Plaintiff in Error, vs. Carver & another, Defendants in Error.
    1. The trustees of a school district are not personally liable on a note execuS ted by their predecessors in office, in their own names, to a teacher for services.

      Error to Pike Circuit Court.

    Action commenced before a justice of the peace, against Carver and Douglass, described in the summons as trustees of Cave Spring district No. 3, township 53, range 3, upon the following note:
    “ $75. Four months after date, we, the undersigned, trustees of school district No. 3, township 53, range 3 west, Pike county, Mo., promise in our name of office to pay A. P. Rogers, or order, seventy-five dollars, for teaching school three months in the district above mentioned, to be paid out of any school moneys that we may have on hand, or that may be accessible to us, or out of moneys raised in any other way for that purpose. Given under our hands this the 29th day of November, 1853. “ Jambs M. Frier, ,, -y, > Trustees. ' “ Wm. M. BRANDON, 5
    At the trial in the Circuit Court, on appeal, it was agreed that the note was executed by Frier & Brandon, two of the trustees of the district, to plaintiff, for services as teacher, the other trustee and a part of the inhabitants of the district objecting to their right to employ him as teacher; that the school was taught; that at the time of the contract and of the teaching of the school, there were no school funds in the hands of the trustees, and none coming to the district until February of the next year ; and that the defendants were elected trustees of said district on the first Saturday in December, 1853, and immediately qualified. Upon these facts, the Circuit Court found for the defendant.

      Broadhead, for plaintiff in error.
    1. The trustees of the school district were a corporation. 2. Frier & Brandon were authorized to make the contract sued on in their name of office as trustees of the district. 3. The school district is responsible for the debt created by the first board of trustees for the benefit of the district. 4. The suit is properly brought against the trustees in office at the institution of the suit, they being the officers to transact the business of the district, and the only corporate name by which the inhabitants of the district are known. (School Law of 1845, p. 37, art. 4, § 18, 19, 26, 32, 44, 54. Grant on Corporations, p. 6, and note.)

      S. F. Murray, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

It is clear that the judgment of the Circuit Court is correct. It appears from the docket of the justice, that this was a personal proceeding against the defendants. They were not sued as a corporation, but as individuals, and that, too, on a note not signed by themselves, but by others.

Whether the individuals who signed the note are personally liable for it, is not a question now before us. The note is in words that forbid the construction that it will devolve in a course of succession. If the individuals who subscribed their names to it are not liable to be sued on it, nobody is. In contracting under the act of 24th February, 1858, (Sess. Acts, p. 147,) the trustees should use their name, which it may be inferred would be, “ The Board of Trustees of School District No.-,” describing the district by its range and township. If the name is misdescribed, it would be a question of law how far the mistake affected the contract.

The facts as agreed are not sufficient to enable us to determine how far the funds coming to the hands of the existing trustees, are liable for the debts contracted by their predecessors. Our opinion must be confined to the facts contained in the record, and we are not permitted to declare the law in cases that may be supposed.

The other judges concurring, the judgment will be affirmed.


text:
    E. & G. Hastings, Appellants, vs. Myers’ Administrator, Respondent.
    1. The right of a widow to two hundred dollars’ worth of property under sections 30, 31 and 32, of article 2, of the administration law of 1845, (see R. S. 1845, p. 77,) is absolute and vests immediately upon the death of her husband; and in case the personal property belonging to the estate of the husband is converted into money, and the widow dies without receiving her portion of $200, her administrator will be entitled to receive such money, against creditors of her husband’s estate.
    '2. Where, in such a case, there has been no administration upon the widow’s estate, it would be error to order the money to be paid to the children of such widow, as her representatives, or to their guardian for them. The widow’s estate should be distributed through her administrator.

      Appeal from Lincoln Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      T. R. Cornick, W. Porter and W. M. Cooke, for appellants.
    I. The 30th, 31st, and- 32d sections- of article 2 of the administration law of 1845-, do not vest an absolute property in the widow, but only a right of election; and-if she dies without electing what property to take, and without applying to the county court and having the same allowed her, no title passes to her legal representatives. II. If, however, the widow’s right was absolute, it did not descend directly to her heirs, but can only be claimed by her administrator. (8 Mo. Rep. 437.)

      Hunt and Wheeler, for respondent.
   Scott, Judge,

delivered the opinion of the court.

Jacob Myers died leaving a widow, Margaret Myers, who died leaving children before she had received from her husband’s estate the sum of two hundred dollars in property, as a part of her dower, allowed by the administration law. Barnet Myers, the administrator of Jacob Myers, on a settlement with the county court, showed that there was in his hands the sum of $195 08. The appellants being creditors of the estate of Jacob Myers, claimed this sum. The children of Margaret Myers, the widow of Jacob Myers, likewise claimed it as the heirs of their mother, it being, due their mother’s estate as part of her dower in the estate of her deceased husband.

The county court ordered this money to remain in the hands of the administrator for the payment of debts. From this judgment an appeal was taken to the Circuit Court, where the judgment of the county court was reversed, and the money ordered to be paid to the children of the widow. From this judgment, an appeal was taken to this court.

1. By the common law, the widow’s dower, consisting of a life estate in the lands whereof her husband was seized during the coverture, if her dower was not assigned before her death, it could not be done afterwards, as ber estate was then determined. But courts of equity, notwithstanding her death, would entertain a bill in favor of her representatives, for the rents and profits received in the interval, between her death and that of her husband. As to the personalty, we see no difference between the interest of a widow, in her deceased husband’s estate, and that of any one of his distributees. If a child dies after his parent, and before a distribution of his estate, his portion will be distributed among his heirs. By the dower law, the wife’s right to dower vests immediately upon the death of the husband, both as to realty and personalty. The two hundred dollars’ worth of property allowed the widow by the 30th section of the 2d article of the administration law, is a part of her dower, expressly made so, and it is exempted from the payment of debts of the deceased; and if it should so happen that the widow does not receive the property, money is ordered to be paid in lieu of it. As the property allowed the widow cannot always be assigned to her, without more or less delay, it would impair her credit, when she might most need it, if it should be held that her right to dower depended on her obtaining actual possession of it during her lifetime.

As to the argument that no property vested until an election by the widow of what she would take, it must be remembered that the common law gave dower, not for the sustenance of the widow alone, but for the nurture and education of 'her children. The sections referred to, contained in the administration law, did not intend to make the right to the property thereby conferred dependent on an election, but gave the right absolutely, with the privilege of taking what she chose. This is apparent from the 32d section, which allows the widow money when the property has been sold, which is just this case.

2. As it was not regular to distribute the mother’s estate but through her administrator, as she may have owed debts, and as it does not appear that any administration has been taken out on her estate, the money will be retained by Barnet Myers, administrator of Jacob Myers, until an administrator is appointed for Margaret Myers’’ estate, who will be entitled to the money in controversy.

The other judges concurring, the judgment will be reversed, and the cause remanded, to be proceeded in, in conformity to-' this opinion.


text:
    Criddle's Administrator, Appellant, vs. Criddle, Respondent.
    1. Under the 5th section of the act concerning fraudulent conveyances, (R. C. 1845,) the administrator of a party who has been in possession of personal property five years under a loan, cannot, as representing creditors of his intestate, impeach the title of the lender.

      2\ The declarations of a party in possession of personal property against his title are admissible; hut declarations by him. on other occasions, in support of his title, are not admissible even in rebuttal.

      Appeal from Cape Girardeau Circuit Court.

    This was an action brought by the administrator of William S. Griddle, to recover the value of a female slave, alleged to have belonged to the estate of his intestate, and to- have been-converted by the defendant.
    At the trial before a jury, it appeared in evidence that the slave originally belonged to the defendant, the father of the plaintiff’s intestate, but had been in possession of the plaintiff’s intestate more than five years before his death. The plaintiff offered to prove the declarations of his intestate while in possession of the slave as to his right to her, but the evidence wa& excluded, and an exception taken. The defendant introduced evidence of declarations by the plaintiff’s intestate while in possession of the slave that she did not belong to him, but to-his father. Some of these declarations were made at a time-when the intestate was threatened with law suits.
    Among other instructions given for the defendant, about which no question is here made, was the following, to which the plaintiff excepted:
    “ 5. The administrator of William S. Criddle, in this case, does not represent the creditors of William S. Criddle. He only represents the personal interest of Wm. S. Criddle.”
    There was a verdict for the defendant, and the plaintiff af-terwards appealed.

      J. W. Noell, for appellant.
    1. The 5th instruction was erroneous. The administrator is trustee for the creditors as well as heirs, and as such can recover for the benefit of creditors property to which his intestate had claimed a title by possession under the 5th section of the act concerning fraudulent conveyances. (R. C. 1845.) 2. The declarations of Wm. S. Criddle, as to his right to the slave, should have been admitted, especially as other declarations made by him against his right, apparently with a view to keep off creditors, were admitted when offered by the defendant. The declarations of a party in actual possession are always admitted to show the character of his claim, whether adverse to another claim or not.

      Glover & Richardson, for respondent.
   Scott, Judge,

delivered the opinion of the court.

1. We see no error in the trial of this cause. The loan of the slave by the defendant to his son may have been fraudulent as to the creditors of the son, and as to them, the son’s title to the slave may have been valid in law. But if the transaction was a loan between the defendant and his son, it still continued one, and the administrator of the son had no title to the slave as against the defendant. If the creditors of the son have been defrauded by a pretended loan, their remedy is against the defendant as executor de son tort of his son. The 5th instruction complained of was intended to convey no other idea than that here expressed, and could have done no harm under this view of the law.

2. Where a person is in possession of property, whether real or personal, and nothing more appears,, the law presumes that. he is the owner of it. He cannot, whilst thus possessed, make a title for himself by his own declarations or assertions. But his declarations against the presumption which the law makes in his favor, may be given in evidence to disprove the presumption, and to show that he has a less or no interest in the property of which he is possessed. This, we understand to be the rule on the subject of declarations made by one apparently the owner of property, and so it has been repeatedly declared by this court. Now this rule would be of little or no value, and, indeed, would be dangerous, if, when declarations against a party’s interest are offered in evidence, it should be allowed him to bring in declarations made on other occasions making title in himself, on the pretence of disproving those made against his interest.

The other judges concurring, the judgment will be affirmed.


text:
    Morse, Respondent, vs. Maddox, Appellant.
    1. Judgment affirmed because an instruction given was warranted by the evidence.

      Appeal from Jefferson Circuit Court.

    This is an action brought by Morse for the breach of an agreement by which the defendant leased to plaintiff a certain tract of land, together with the privilege of using water from the dam of Maddox, the defendant, for driving a saddle-tree manufactory. A breach assigned was, .that Maddox entirely shut off the water from plaintiff’s manufactory, so as to render it impossible for him to continue his business. There was some evidence tending to show that the water was so shut off from plaintiff’s manufactory by the defendant. The following instruction was asked for by -the plaintiff, and given by the court:

      “ If the jury find that Maddox, either by himself or agent, for the purpose of interrupting Morse in the peaceable enjoyment and use of the water privilege, shut down the head gate of the forebay, by which Morse was prevented from the enjoyment and use of the water, then he had a right to abandon the •contract, and recover, by way of damages, such losses as he may have sustained by reason of being thus deprived of the use of the property, and the jury will find a verdict.'”
    The defendant excepted to the giving of this instruction. The evidence is sufficiently set forth in the opinion of the court. See also this case as reported, 17 Mo. Rep. 569 ; 19 Mo. Rep. 451.

      M. Frissell, for appellant.

      Jones and Pipkin, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This case is now, for the third time, before this court; it was reversed the first time, and the case is -reported in 17th vol. Mo. Rep. 569. The case was tried below and brought here again. It was reversed the second time and remanded ; this decision is reported in 19th vol. Mo. Rep. 451. It was again tried, and is now brought here for the third time. The appellant now contends that the instruction given by the court had no evidence to support it. It was reversed the last time because the court told the jury there was no evidence before them in regard to a certain point, when the record contained some evidence on the point, which ought to have been left for the consideration of the jury. The appellant admits the instruction is proper enough in regard to the law it embraces, but is improper in this case, because there is a total lack of evidence to support it.

Now, the evidence shows that Maddox had said he would drive Morse away. He invited a witness to come over to his house, saying he had a barrel of whisky, and he wanted to raise a mob, and tar and feather Morse and some two or three others, and drive them away. When he inquired of a witness if the mill was running, and was informed it was not, he asked why, and was told the head gate was shut down ; Maddox replied, " by G — d, I will come the old soldier over him yet.” Now this head gate shut off the water from Morse’s wheel as well as- from, the grist-mill wheel. This head gate was shut down while the mill was in possession of Maddox’s agent; and, although the agent said the gate was shut"down not to injure Morse, but to try and see if there could not be more water and the mill made to grind faster, and that Maddox did not know when he shut-the-gate down, and had no hand in it directly or indirectly, yet the conduct of Maddox was such, his threats to drive away Morse, and his exclamation and oath, when he heard that the gate was shut down, that he would come the old soldier over him yet, all rendered the instruction proper for the jury. They found for the plaintiff, and, upon, the whole record,.we see no error requiring the third reversal from this court.

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


text:
    Selmes, Respondent, vs. Smith & others, Appellants.
    1. Goods-were levied^on-by the sheriff- under execution, and advertised to be sold. OndKe day of the sale, by agreement of the parties, a bond was executed by the defendant in the execution for the delivery of the goods at a future day. Held, this was not a statutory bond under the 31st section of the act concerning “'Executions,” (R. C. 1845,) and could'not be enforced as such by a summary proceeding- on motion.

      Appeal from Hannibal Court of Common Pleas.

    This was a motion for judgment on a delivery bond taken by the sheriff..
    On the 20th of January, 1855, T. R. Selmes obtained a judgment against Smith & Dick. On the same day, an execution issued, and was levied on a stock of goods- belonging to the defendants. The goods were by the sheriff advertised' to be sold on the 12th of February, 1855. On the day of the sale, the defendants offered to give him a bond for the delivery of the goods at a future day, which he delined to receive, unless by written agreement of the parties. After the sale ivas commenced, the plaintiff and defendants entered into a written agreement, by which the sale was postponed to the 17th of May, and the defendants executed a bond, with several securities, for the delivery of the goods on that day. The goods not being delivered on the day appointed, the plaintiff moved for judgment on the bond, which he obtained in the court below. The defendants appealed.

      Richmond, for appellants.

      Lamb and Lakeman, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This is a proceeding against sureties, and it is well settled that the obligations they contract, are to be strictly construed'. The 31st section of the execution law directs that, “ when the sheriff or other officer charged with the service of an execution, shall levy it upon personal property, the defendant may retain possession thereof until the day of sale, by giving bond in favor of the plaintiff, conditioned for the delivery of the property at the time and place named in the condition.” From the return made by the sheriff to his writ, it appears that the property of the defendants in the execution had been levied upon ; it was advertised, and the sale actually commenced on the day appointed. It would seem from these facts, that the power of the sheriff, as far as this levy was concerned, was exhausted as to a delivery bond. He was under no obligations at- that day to take a forthcoming bond, and acted accordingly, by refusing to take one without the consent of the plaintiff. After-wards, by a written agreement between the parties to the execution, in which, however, the sureties did not join, the day of sale was postponed, and the bond, the foundation of this proceeding, was taken for the forthcoming of the property on the day agreed upon. Now, it seems to us, that it cannot be said, that this bond derives its validity from the statute authorizing the taking of delivery bonds. The bond was taken under circumstances which would not warrant the taking of a bond, which was to be enforced by a motion in case of a breach of its condition. The facts show that it was a bond arising purely out of the consent and agreement of the parties. It cannot, therefore, be used as a statutory bond. It is good, for aught that appears, as a common law bond, and the parties must look to the ordinary remedy in order to enforce it.

The other judges concurring, the judgment will be reversed.


text:
    Brown, Appellant, vs. North, Respondent.
    1, An action cannot be maintained on a note obtained by fraudulent representations.

      Appeal from Franklin Circuit Court.

    Action by Brown against North upon a promissory note. The defence relied upon in the answer was, that the note was obtained by the fraudulent representations of the plaintiff. At the trial without a jury, the court found the facts to be, that John F. Mense, on behalf of himself and the defendant, employed the plaintiff to purchase a tract of land for them, agreeing to pay him twenty-five dollars for his services, and authorizing him to pay not exceeding eight dollars an acre for the land. The plaintiff succeeded in purchasing the land at seven dollars an acre. Before a deed was executed, the defendant bought out' Mense’s interest. Afterwards, the defendant executed and delivered to plaintiff the note sued on for $302. At the time this note was executed, the plaintiff claimed for his services the sum of $277, being the difference between the cost of the land purchased at seven dollars per acre and .its value at eight dollars per acre, and the farther sum of twenty-five dolr lars. He represented to the defendant that Mense had instructed him to pay eight dollars per acre, and the note was given upon the faith of the representation. When the defendant executed the note, he knew that plaintiff had obtained the land for seven dollars an acre ; but it does not appear that he knew that the plaintiff had agreed with Mense to make purchase for twenty-five dollars only. Upon these facts, the court below declared as law that the note was without consideration and fraudulent as to all except the twenty-five dollars and interest, and gave judgment for the plaintiff for that amount only. The plaintiff appealed.
    N. Holmes, for appellant.
    1. It is not found as a fact that any false representations whatever were made, nor as law that the note was obtained by fraud. 2. A note being in its nature entire, partial failure of consideration cannot be pleaded in an action on the note. (Story on Contracts, § 482.)' Where there is a valuable consideration, the courts will not inquire into the adequacy of it. (Story on Con. § 483. 8 Mov Rep. 816-9.) Besides, neither the defence of partial failure, nor partial want of consideration, was set up in the answer. 8. An adjustment of a disputed right or claim, the foregoing of some benefit, or the incurring of some disadvantage, is a valuable consideration for a contract. ( Halsa v. Halsa, 8 Mo. Rep. 303-7. Mullanphy v. Riley, 10 Mo. Rep. 489-94. Story on Contracts, § 431-2, § 440.)

      J. D. Stevenson, for respondent.
    An agent cannot speculate on his principal, and the note sued on being given in part for profits made by the plaintiff on his purchase, is to that extent fraudulent and void. (Chitty on Contracts, 245-6, 256-7, 436. 14 Mo. Rep. 615. 13 Mo. Rep. 176.)
   Ryland, Judge,

delivered the opinion of the court.

The finding of the court supports the judgment, and the facts warrant the finding. Here, a man undertakes to do a certain act for a specified consideration. He undertakes to purchase a. tract of land for Mense and North. He is to purchase it at a price not exceeding eight dollars per acre. A part of the money is advanced to him by Mense before he commences the treaty about the land. For purchasing he is to receive, as a compensation for his services, $25. He succeeds in making the purchase at the price of $7 per acre, and then represents to North that he was to get the difference between the sum of $7 and $8 per acre for making the purchase. He elaims the sum of $302 for doing that which he had promised to do for $25, and by his representations induces North to give him his note for the amount claimed.

There is no pretext for this demand made by Brown on North. The note was obtained by fraudulent representations, and should not be allowed to support an action. Suppose Brown had bought the land at $5 per acre, would he have claimed that Mesne and North must pay him the difference between the prices at $5 and at $8 per acre ? He had just as much right to do it as he has to claim the difference between $7 and $8 per acre.

Will any one pretend that a man can honestly demand the sum of $302 from his employers for doing the very business which he had engaged himself to do for $25 ? Suppose he should make representations, partly true and partly discolored by concealing the truth, and thereby get the note of one of his employers; when the facts are brought to light on a trial, can any conscientious man expect to retain the wages of such work? Why talk about want of consideration, when the note is founded in mala fules ?

Upon looking over the whole case, we are satisfied with the judgment of the Circuit Court, and it is affirmed by this court .unanimously.


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    Lee’s Administratrix, Respondent, vs. Lee, Appellant.
    1. Where a record is offered in evidence, to show the fact that there is a judgment, the object being to support an execution under such judgment, it is not necessary that the entire record should be offered and read in evidence. A transcript of so much of the record as will show the existence of the judgment under which the execution issued, may, in such cases, be received in evidence.
    2. In an action by A., as administratrix of B., for a conversion of property o-wned by her as such administratrix : held, that the defendant is not entitled to set-off a debt due from the intestate, B., in his lifetime.

      3. The supreme court will not, under the practice act of 1849, reverse a judgment because the inferior court, in the exercise of its discretion, permitted the plaintiff to amend his petition, and change his cause of action from one in the nature of assumpsit, to one in the nature of an action of trover ; and that, too, although the effect of such amendment may be to prevent the defendant from availing himself of a matter of set-off which he had wel pleaded to the original petition.

      Appeal from Madison Circuit Court.

    This was an action -for the conversion of certain mineral ashes of the plaintiff, as administratrix -of Archelaus Lee, deceased. The defendant claimed the ashes under a purchase at an execution sale of the intestate’s property. There was evidence tending to show that the ashes were purchased in by the defendant for the benefit of Archelaus Lee ; and that the said Archelaus advanced part of the consideration.
    The following instructions, .among others, which It is unnecessary to notice, were asked for by the defendant, and refused by the court:
    “3. If the jury believe from the testimony, that there was a secret understanding between Archelaus (the plaintiff’s intestate) and Giles Lee.(the defendant), that he (Giles) should purchase in said ashes for the benefit of the said Archelaus Lee, then this was a legal fraud, and the parties should be left where they are, and the finding should be for the defendant.’?

      “4. If the jury believe from the testimony, either verbal or written, that the mineral ashes in question were sold by the-sheriff of Jefferson county under an execution in favor of Wm. and'Thos. Boyd, and against Archelaus and L. H. Lee, upon a judgment of the Circuit Court of said county, in favor of said Boyds and against said Lees, and that Giles Lee purchased said ashes at said sale fairly, and paid for them, then the legal title of the same passed to the defendant \ and, unless the jury further believe he afterwards sold them to the plaintiff, or parted with the title, they will find for the defendant.”
    The other facts of the case sufficiently appear in the opinion of the court.

      Wliittelsey & Green, for appellant.
    1. The court erred in striking out the set-off of defendant. The plaintiff’s cause of action came to her as the administratrix of A. Lee, and accrued before his death. The amendment of the petition could not destroy defendant’s right to plead set-off. (R. C. 1845, p. 1005, sec. 2. Smith v. Kennett, 18 Wo. Rep. 154.) 2. The court erred in withdrawing from the jury the transcript of the record offered in evidence by the defendant. (Barker v. Miller, 6 J. R. 195. Blackledge v. Shelton, 7 J. R. 32. 7 Mon. 386. 3 A. K. Marsh. 452. 8 Mo. 455.) 3. The third and fourth instructions asked for by defendant should have been given. (Flowers v. Sproule, 2 A. K. Marsh. 54.)

      Frissell, Noell and Pipkin, for respondent.
    1. The court did not err in excluding the transcript. A certified copy of part of a record is inadmissible. (Philipson v. Bates exec’r, 2 Mo. 95. Sparr v. Wellman, 11 Mo. Rep. 230.).
   Ryland, Judge,

delivered the opinion of the court.

This was an action by the administratrix of Archelaus Lee, deceased, against Giles Lee,- for the price of some mineral ashes sold and delivered to the defendant.

The defendant, Giles Lee, filed his answer denying his indebtedness to the estate of Archelaus Lee, deceased, denying, his purchase of any mineral ashes or other property or goods of Rebecca Lee or of Archelaus Lee, deceased, and also sets up in offset a debt due from the intestate to the defendant.

The plaintiff obtained leave and amended her petition. She changed her cause of action, declaring for goods of the plaintiff, as administratrix, converted by the defendant after the intestate’s death. That is, the action was changed from the old action of assumpsit, as formerly known to us, into the action of trover. The defendant claimed the ashes under a purchase at an execution sale of intestate’s property. After the change of the action, the court, on motion, struck out from the defendant’s answer the set-off. At the trial, the defendant gave in evidence a transcript of a judgment of the Circuit Court of Jefferson county, state of Missouri, upon an appeal from a justice’s court, in which it appears that William Boyd and Thomas Boyd were plaintiffs, and Archelaus Lee and Lewis H. Lee defendants. This transcript showed that the parties appeared and went to trial; there was a verdict and judgment; on this judgment an execution issued. The returu of the execution shows the sale of a lot of mineral ashes, and the purchase thereof by Giles Lee. After the case was concluded, the court withdrew from the consideration of the jury the transcript of the record, on the motion of the plaintiff’s counsel, because it did not purport to be the whole record in the cause.

Exceptions were taken to the various rulings of the court during the progress of the trial. The jury found a verdict for the plaintiff for five hundred and twenty dollars. A motion to set the verdict aside and grant a new trial being overruled, the defendant brings the case here by appeal.

The transcript of the record of the judgment of Boyds vs. Lees, in the Circuit Court of Jefferson county, was proper evidence, and it should not have been withdrawn from the jury. This presented enough of the record to be allowed admission as evidence. Here was the appearance of parties, a jury, a verdict, a judgment, and an execution and return thereon. The case was taken by appeal from a justice of the peace. There was no necessity to copy the entire transcript of the justice. Here was enough transcribed and certified to render it evidence for the defendant.

Where the action is brought by the officer for goods taken from his 'possession, which he had before levied on by fieri facias, it is not necessary for him, in order to support his action, to offer more than the execution, and prove the levy and seizure thereunder, without a copy of the judgment even. (Barker & Knapp v. Miller, 7 Johns. Rep. 196. 7 Johns. Rep. 32.) “It is a general rule that records, when used in evidence, must be produced entire. But this rule is laid down with some exceptions and limitations. The reason assigned for it is, that the part of the record which is lacking, may give the rest a different meaning. Where a record is -used as evidence, to prove the facts therein contained, the rule well applies ; but where it is only used to show the fact that there, was sucha judgment, then so much of the record as is relevant is frequently permitted to be used. Here, the fact to be shown was, that there was such a judgment to warrant the execution, and enough of the record is produced to establish 'that fact.” (McGuire v. Kouns, 7 Monroe, 386.) Here, the record shows that the parties appeared, a jury trial, a verdict, a judgment and execution ; that is sufficient. The object was not to prove the contents of a record, but to show that there was a judgment, in order to support the execution. There was no necessity, then, for any more of- the record being produced. “In trespass against the plaintiff of a former action, or against a stranger, or where the action is brought by a stranger, whose goods have been wrongfully taken by the sheriff under execution issued against another person, the sheriff, or his officers justifying under the process, will be held also to prove the judgment upon which it issued.” (2 Greenl. Ev. § 629. Martin v. Podger et al., 5 Burrow, 2633.) Lord Mansfield held that, where the action is brought by a stranger, the judgment must be proved, saying, “ the general apprehension is, that it is necessary to produce a copy of the judgment,” and the rest of the court concurred with him.

There is error, therefore, in the ruling of the court in withdrawing said record from the jury.

In regard to the instructions, those given for the plaintiff are not liable to any serious objection. The instruction asked by defendant, in regard to the sale by the sheriff, and the purchase by the defendant of the mineral ashes, upon the next trial, when the record of the judgment against the Lees in favor of the Boyds, shall be before the jury, ought to be given, or some such instruction, putting the case properly before the jury. There is nothing in the other instructions which the court refused to give worthy of our attention.

So far as regards the act of the court in permitting the plaintiff to amend her petition, by even changing her entire eause and ground of action, we cannot say that such ruling of the court is an improper exercise of discretion. These matters of amendment are peculiarly within the discretionary powers of the inferior courts, and we think justice will be promoted by a liberal exercise of this power. Such amendments are always made on terms and cannot possibly do much harm. Here, the duty of the administratrix, for .aught that appears to us, may have required this amendment in order to save the assets of the estate and to have the funds properly distributed among the creditors, rather than permit one to set-off his own debt, because the form she first adopted, in seeking to recover from him, allowed of such a set-off.

Upon the whole case then before us, we think the judgment below must be reversed for the erroneous act of the court in withdrawing from the jury the record of the judgment of Boyds vs. Lees, above mentioned. The other judges concurring, the judgment is reversed and the cause remanded.


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    Alexander, Appellant, vs. Lane, Respondent.
    1. After a sale of land has been completed by the execution of the deed, and the payment of the purchase money, any stipulation or engagement by the grantor, that the grantee should have certain articles of personal property which were upon the land, are void as being without consideration ; yet such engagements or declarations may be used as evidence tending to show the existence of a prior understanding or contract that those articles should pass to the grantee, which, when executed by delivery of the same, confers title.

      Appeal from Franklin Circuit Court.

    This was an action commenced before a justice of the peace, to recover the value of certain boards and laths, alleged to belong to plaintiff, and to have been wrongfully taken by defendant. It was in evidence on the trial before the Circuit Court on appeal, that Alexander, the plaintiff, had purchased a farm from one James Lane. At the time of the purchase there were upon said farm certain boards and laths stacked up in the yard preparatory to building. There was evidence (which is set forth below) tending to show that it was the understanding between Alexander and the said Lane, that the boards and laths should pass to the said Alexander with the land purchased. After the said purchase, the said Lane sold the boards and laths to one Wm, S. Lane, the defendant in this action, who removed them before Alexander took possession of the farm. The evidence referred to is that of one Plato Cole, who testified, that he was present at the execution, by J. Lane and wife, of the deed for the farm, and the payment of the purchase money by Alexander: he further proceeds as follows : “After the deed was executed and delivered and the money paid, Alexander and myself started to leave; we got to near the yard gate, and Lane came out and said, ‘ uncle Martin, I think you ought to pay me something more for the boards and laths.’ Alexander replied, ‘ no, James, not a dime more. I have paid you all I was to pay you.’ Lane hung his bead awbile and then said, ‘ well, you can take tbe boards and latbs, but I will keep tbe nails,’ and we parted. Tbe parties parted apparently satisfied.”
    Tbe following instructions, among others, wbicb it is unnecessary to set forth, were given by tbe court, and excepted to by tbe plaintiff:
    “The consent of James Lane that the plaintiff might have tbe latbs and boards, as deposed to by Plato Cole, being after tbe payment of tbe purchase money and tbe execution of tbe deed, is void as a contract, being made without any consideration, and conferred no right of property on tbe plaintiff, yet tbe jury are at liberty to consider tbe conversation as evidence, if they find it conduces to prove a prior contract in regard to the boards.”

      “ If tbe jury find there was no special contract in regard to tbe boards, yet, if they find from tbe evidence, deposed to by Cole, that Lane agreed or contracted for Alexander to have tbe boards and latbs, and accordingly delivered them to Alexander, then such trasaction is good as a gift, and invested Alexander with tbe right of property, and the jury will find for him.”

      C. Jones, for appellant.
    Stevenson, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The evidence of Cole was not withdrawn from the jury, but they were properly instructed as to its legal effect. The jury were told that what passed in tbe yard, after tbe transaction was completed by tbe execution of tbe deed and tbe payment of tbe purchase money, did not constitute a present contract of sale, but they were at liberty to consider it as evidence of a prior contract to that effect, and that if Lane agreed that Alexander should have tbe boards and delivered them accordingly, it was a valid gift.

It appears not improbable, from tbe conversation in tbe yard, to wbicb Cole testified, that both parties to the sale thought the boards were embraced in it, and that it was so expressly understood between them ; but the jury who tried the cause thought otherwise, it seems, and we could not correct their finding even if we thought it erroneous in this matter. The judgment is affirmed.


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    James & Jewett, Appellants, vs. Dixon, Respondent.
    X. Where an administrator of a deceased partner, upon the neglect or refusal of the surviving partner to give'lhe bond required by the 50th and 51st sections of the 1st article of the administration act (see R. C. 1845, p. 70), gives bond under the 54th section of said article for the due administration of the partnership effects: held, that such bond is valid, although it does not appear to have been approved by the county court, and the administrator will be entitled to take possession of the entire partnership effects under sec. 53 of the said article. There is nothing in the statute which makes the approval of the bond a prerequisite to the vesting of the property in the administrator.
    2. A notice given by the administrator of the deceased partner to the surviving partner, to the effect that, unless such surviving partner gives the bond required by the 50th and 51st sections of the 1st article of the administration act, (R. C. 1845, p. 70,) he, the administrator, will move the county court for an order to take possession of the partnership effects, is a sufficient citation within the 53d section of said article.
    3. The omission by an administrator to give three weeks’ notice of a sale of personalty, will not invalidate the title of a purchaser.

      Appeal from Jefferson Circuit Court.

    This was an action brought to recover possession of certain leasehold property, alleged in the petition to have been formerly held by the defendant, Dixon, in partnership with one Skeel, deceased. Plaintiffs also claimed damages for the detention of said property. The plaintiffs claimed the entire leasehold property, as purchasers at an administrator sale by one Foxton, as administrator of the said Skeel. The said property was taken possession of by the said Foxton, as the partnership effects of the said Skeel & Dixon, and the sale was made under the 58d section of the 1st article of the administration act. (See R, C. 1845, p. 71.) It appeared in evidence that the county court ordered the said Foxton to give bond “ as administrator of the partnership effects ; yet, it did not appear that the bond given by him, under the 54th section of the said 1st article, was approved by the county court. The only citation to the defendant under the 53d section of the said 1st article was a notice, in the name of the administrator, to the effect that, unless he, Dixon, should give bond', as required by the 50th and 51st sections of the article above referred to, he the said Foxton would move the county court for an order, directing him, the said Foxton, as administrator of the said Skeel, to take charge of and administer the property of the said firm of Skeel & Dixon. The notice was duly served upon defendant. In the inventory made by the said administrator, Foxton, this property was inventoried as a lease to the said Skeel and the said Dixon ; it was not stated to be partnership property. There was only a two weeks’ notice or advertisement of the sale. There was no special order of the county court for the sale of this leasehold interest. All evidence in regard to the sale was excluded by the court, on the ground that the plaintiffs had not shown that Foxton, as administrator of said- Skeel, had complied with the law in giving.bond to the satisfaction of the county court, nor any other authority to sell the partnership effects of said Skeel & Dixon. To this exclusion the plaintiff excepted. The defendant, in his answer, denied the existence of the alleged partnership between himself and Skeel-..

      Frissell, for appellants.

      Noell and Pipkin, for respondent.
   Scott, Judge,

delivered the opinion of the court.

1. The approval of the bond by the county court was not indispensable to its validity. Wherever the law requires a bond to be approved, that bond will be binding until it is disapproved, unless it is otherwise expressly declared. When the bond is approved, the approval will relate to its delivery. There is nothing in the statute which makes the approval of the bond a prerequisite to the vesting of the property in the administrator. (Jones v. State, 7 Mo. Rep. 81.)

2. As to the notice given by the administrator to the surviving partner, requiring him to give bond for the due administration of the partnership effects, we are of the opinion that it was sufficient. If a citation from the county court had been necessary to divest the property of the survivor, it might have been otherwise. But the law seems to divest the property of the survivor, by requiring the administrator of the deceased partner to include the partnership effects in his inventory, and the surviving partner is only entitled to retain them upon his giving bond, as required by law. If he fails to do this, then he is required to deliver up the partnership effects, as the surviving partner is only allowed to hold the partnership property upon his giving bond; and, as he must be aware of his own default in not giving bond, if he wishes to retain the partnership goods, there is no hardship in holding that a notice from the administrator of the deceased partner is a sufficient citation within the meaning of the law.

3. After the partnership goods or effects are vested in the administrator of the deceased partner, they would seem to be like any other property in his hands to be administered. It has never been supposed that a failure by an administrator to give the requisite notice of the sale of the personalty of the deceased, would affect the title of a purchaser at that sale. There may be such fraud and collusion between a purchaser and administrator as would induce the courts to set aside the sale, but the bare omission to give the required notice has never been thought to impair the title of a purchaser.

The 43d section of the 2d article of the act concerning administration has nothing to do with this matter. It was not necessary to obtain a special order for the sale of this leasehold.

As the particular piece of property in suit was not placed in the inventory as partnership property, and as it was never surrendered -or given up by the defendant, he is at liberty to contest the fact of its being partnership property, if he has not by his own conduct precluded himself from such a defence. As the administrator did not avail himself of the remedy provided in the 56th section of the 1st article of the administration law, we see no reason why, under the circumstances, the surviving partner may not contest the fact of the partnership in this piece of property.

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


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    Marr, Appellant, vs. McIntosh & McIntosh, Respondents.
    Í. Where, in an action brought by A. against B. and C. for the possession of land — A. claiming as purchaser under an execution sale against B. — C., one of the defendants, sets up a title under a deed from B. prior to the sheriff’s deed to A., and it is found by the court that the said deed from B. to C. is fraudulent and void as against A., thus negativing the only defence set up by C.: held, that A. is entitled to judgment against C. as well as against B., and that, too, although he may have offered no evidence of title in B. under whom both A. and C. claimed.

      Appeal from Perry Circuit Court.

    This was an action in the nature of an ejectment, to recover possession of certain tracts of land. The facts, as found by the court, are as follows: The defendant, Benj. W. McIntosh, by a deed dated September 21st, 1847, conveyed to Seth B. McIntosh certain tracts of land. At the time of this conveyance the said B. W. McIntosh was largely indebted to various persons, and among others, to the plaintiff; and the said conveyance was made with intent to delay and defraud the creditors of the said B. W. McIntosh. Afterwards, at an execution sale under judgments against the said B. W. McIntosh, in favor of said creditors, the plaintiff, Marr, purchased the land so conveyed to Seth B. McIntosh : and this suit was brought against the said B. W. and the said S. B. McIntosh? who were both in possession of the said land, to recover possession of the same. In this suit, the only title set up in his answer, by the said S. B. McIntosh, was under the said deed of September 21st, 1847. The court below gave judgment for the plaintiff against the said B. W. McIntosh, and, although declaring the deed from Benjamin W. McIntosh to the said S. B. McIntosh fraudulent and void as against the plaintiff, gave judgment for the defendant, S. B. McIntosh. The court declared the law to be that the purchase by the said Marr, the plaintiff, and the sheriff’s deed to him, though sufficient as against B. W. McIntosh, did not show any sufficient title in the said plaintiff whereon to predicate a right of recovery against his co-defendant, S. B. McIntosh, nor is the deed from B. W. McIntosh to said S. B. McIntosh any evidence of title in B. W. McIntosh before its date, upon which the plaintiff, as his vendee, can claim a right of recovery against S. B. McIntosh,, and, in the absence of any other evidence of title in plaintiff, the defendant, S. B. McIntosh, is entitled to a verdict and judgment.

      Frissell, for appellant.
    1. When both plaintiff and defendant trace their title to a common source, the title of that common grantor is at least prima facie, good for the purposes of that particular action, and neither can be required to show that the common grantor had title. 2. The finding of the court negatived the defence set up by the said S. B. McIntosh, and judgment should have been against him as well as against his co-defendant. (2 Greenl. Ev. 307.)

      Noell, for respondent.
    1. The court having declared the deed from B. W. McIntosh to S. B. McIntosh to be null and void, it could not operate as an estoppel against S. B. McIntosh. This deed was the only evidence of title in B. W. McIntosh at the time of the plaintiff’s purchase at sheriff’s sale. (3 Bouvier’s Inst. 266. Comym’s Digest, tit. Estop-pel, E. & E.)
   Scott, Judge,

delivered the opinion of the court.

As tbe defendant, Seth McIntosh, set up title in bis answer to tbe premises in dispute through a deed from Benj. W. McIntosh, and as tbe court found tbe deed from Benj. W. McIntosh to Seth fraudulent and void, it was maintained by tbe defendant, Seth B. McIntosh, that be was not estopped by the-deed declared to be void, and that be was at liberty to set up any other title be might have. Admitting tbe correctness of' tbe conclusion for the sake of tbe argument, yet, as be in bis answer set up no other title than tbe deed which was pronounced void, and showed no other title on tbe trial, bow was he-defended from tbe claim of tbe plaintiff ?

Benj. and Seth McIntosh were in possession of tbe land im dispute. Tbe plaintiff showed a sheriff’s deed conveying to> him Benj. W. McIntosh’s interest in tbe land, and produced evidence showing that tbe deed under which Seth claimed was void» Now, if Seth showed no other title, what is there to prevent a judgment against him as well as against Benj. W. McIntosh?; Admitting he was not estopped from setting up another title, yet, as he produced none, and as that on which he relied was overthrown, surely be must share the fate of his co-defendant. The doctrine of estoppel has nothing to do with the case. The-judgment will be reversed, and a judgment will be rendered; against both defendants in this court, on the finding in the Gourfc below. The other judges concur.