author: Scott, Judge,

text:
    The City of St. Louis, Plaintiff in Error, vs. Goode & others, Defendants in Error.
    1. It is no ground for enjoining a sale by the city of St. Louis of land previously purchased by her at a tax sale, that the first sale passed no title by reason of non-compliance with the pre-requisites of the law.

      Error to St. Louis 'Circuit Court.

    This was a petition by the heirs and administrator of William Christy, to enjoin the sale by the city of St. Louis of several lots in Christy’s Addition, previously purchased by the city at a sale for special taxes.
    In August, 1846, the city of St. Louis passed an ordinance requiring certain alleys, which had been declared nuisances, to be graded and paved at the expense of the owners of lots fronting on them, within thirty days after notice to the owners or agents. The city marshal was required to deliver the notices, and certify a copy of them to the city engineer, noting the day of service. If the alleys were not graded and paved within thirty days, it was made the duty of the city engineer to let out the grading and paving to the lowest bidder, and charge the cost, together with fifteen per cent, additional, to the owners, to be collected as special taxes usually are. If, however, the owner paid the cost on demand, together with one and a half per cent. on the same, he was to be discharged from any further assessments, and it was made the duty of the collectors, in whose hands the bills should be placed for collection, when making the demand, to notify the debtor of this fact.
    The lots, the sale of which was sought to be enjoined in this proceeding, were sold by the city for the non-payment of the cost of grading and paving under the above ordinance, and were bought in by the city. The petition alleged that the notice required by the ordinance was not given, and that, if given, a copy of it was not certified to the city engineer. Other irregularities were alleged, which it is not necessary to notice. The petition further alleged that the city comptroller had advertised and was about to sell the lots thus purchased by the city, and prayed that the former sale be annulled, and the future sale enjoined.
    An answer was filed, denying the irregularities charged in the petition. At the hearing, it was agreed that there was no evidence of the service of the notice required by the ordinance, or of a demand of the cost of grading and paving, except recitals in the books of the city engineer, and that no copies of the notices were in existence. The court below granted a perpetual injunction. After a motion for a review and new trial overruled, the city brought the case here by writ of error.

      T. T. Gantt, for plaintiff in error,
    insisted that there was no equity in the prayer of the plaintiffs, because if the prerequisites of the law were not complied with before the former sale, it. passed no title, and the plaintiffs could not be prejudiced by a second sale ; and it was too late to obtain relief by injunction against any damage resulting from the first.

      Thomas C. Reynolds, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

We see no principle on which this proceeding can be sustained. Nothing is shown in the pleadings or the evidence, which, in any wise, connects the sale enjoined by this proceeding with the first sale of the lots, by which it would appear that the last is a mere continuation of the first sale.

The city, as she alleges, by a former sale, acquired a title to the lots, the subject of this controversy. She now proposes to sell them, in order to be reimbursed the costs and expenses of the first sale. The owners of the lots seek to enjoin this last sale, on the ground that the first sale was irregular and void.

Granting that the first sale might have been enjoined, yet the parties not having availed themselves of the right to do so, there is now no necessity for the interference of a court by injunction. The mischief,- if any, has been already done. All the right such proceedings could confer has passed to the city. It cannot be a matter of any importance to the owners whether they contest the validity of the first sale with one party or another. As the validity of the sale turns on a question of power or authority to make it, the alienation of the city’s title to another cannot affect the owners. The question of notice to a subsequent purchaser could not affect' the case. Whether he had notice or not, would be a thing of indifference. The only effect of this proceeding is, to try the validity of the first sale in an injunction suit. There is no warrant in the law for this. The owners are in possession, and when it is assailed by a title alleged to be a nullity, the defects in it may be pointed out. It will devolve on the city to show that such steps had been taken as vested the title of the owners in her.

This case bears no resemblance to those in which courts of equity enjoin sales of real estate where there is a shadow resting upon the title, by which a less price will be obtained for it than if the title was clear. Such proceedings are had at the instance of those who are interested in the proceeds of the sale. Here the city is selling her own title, and whether it brings much or little, is the concern of none but herself. Gay v. Hancock, 1 Ran. 72. Lane v. Tidball, Gilmer, 130.

The judgment will be reversed, find the bill dismissed; the other judges concurring.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    Coburn, Respondent, vs. Tucker, Appellant.
    1. Under the I2th section of the 24th article of the practice act of 1849, referees have no power to dismiss a suit because of the refusal of the plaintiff to give his deposition when called upon by the defendant. They should report the matter to the court.
    2. It is a proper exercise of the discretion of a court to set aside a report of referees dismissing a plaintiff’s suit on account of his refusal to give his deposition, upon his filing an affidavit purging the contempt.

      -Appeal from St. Louis Circuit Court.

    The facts are sufficiently developed in tlie opinion of the court. It may be added however, as a point was made upon it by the appellant, that upon the second hearing before the referees, the defendant renewed his motion to reject the petition of the plaintiff, because he was not present to be examined as a witness. No new effort had been made to get his deposition. The referees overruled the motion.

      Hart & Jecko, for appellant.
    1. The referees properly sustained the motion to reject the plaintiff’s petition, it appearing that he had refused to testify before the officer at Boston authorized to take his deposition. (Sess. Acts of 1849, art. 24, § 11, 12.) 2. The first report of the referees stood as the decision of the court, and the Circuit Court could not send the same back. It could only have been reached by a motion to set aside the judgment rendered upon it. (Practice act of 1849, art. 16, § 3.) 3. Admitting that the plaintiff purged the contempt in refusing to give his deposition, and that the first report was properly set aside, yet upon his failure to appear before the referees to be examined as a witness, the motion to reject his petition, when renewed, should have been sustained. Surely, the defendant, after one ineffectual attempt to get his deposition, was not required again to go to Boston after it. It was the duty of the plaintiff to appear, as it was his fault that his deposition was not taken before.

      C. B. Lord, for respondent.
    I. The case is not properly here. No motion for a review was made within the time required by law. (Pr. act, art. 16, § 3. 17 Mo. Rep. 376.) II. The court very properly set aside the first report made by the referees, and directed them to proceed and report upon the case. 1. The 11th and 12th sections of article 24 of the practice act„do not apply to a case where the party sought to be examined is a non-resident. The 6th section of the same article applies to non-residents. 2. Even if the 11th and 12th sections do apply, yet the action of the court below cannot be complained of here. It was at best a constructive contempt, to .be punished by the court below. This court will not compel the court below to punish. (4 Cowen, 49. 5 Iredell, 199. 1 Carter (Ind.) 161.) 3. The contempt was purged by the plaintiff’s affidavit.
   Ryland, Judge,

delivered the'opinion of the court.

The only question in this case of any importance, and indeed the one mainly relied on by the appellant for the reversal of the judgment below, involves the propriety of the court’s decision in sustaining the plaintiff’s motion to set aside the report of the referees first made by them.

It appears that during the progress of the suit, depositions were taken by the parties in Boston, in Massachusetts ; that the defendant called on the plaintiff to be examined and to give his deposition touching the matters in controversy. This the plaintiff refused to do, saying he was a party, and that the defendant had no right to take his testimony, but offering however to give it, upon the condition that he might use the deposition in the suit, if the defendant would not use it. This condition was refused. The plaintiff then would not testify. This fact appears by a statement made by the justice or by the officer before whom the depositions in Boston were taken.

By consent of parties, the Circuit Court referred the matters in controversy to referees. Before these referees, the defendant appeared and moved to reject the plaintiff’s petition in this case, because the plaintiff had refused to testify by giving his deposition as aforesaid. The referees sustained this motion, and rejected the plaintiff’s petition, and made report to that effect. This report the plaintiff moved to set aside, and for an order directing the referees to proceed to a hearing of the cause and to make report. Affidavit of plaintiff was filed with this motion, as follows : “Plaintiff states that some time in December last, and at the time of taking depositions in this case in Boston, Massachusetts, on the part of the defendant, plaintiff was called upon to give his deposition in this case, which he at the time declined to give, because he was at the time under the impression that a party to a suit at law could not be called upon to swear in the case, unless a previous order of the court in which the suit was pending was first had for that purpose ; that, under such impression, he declined to give his deposition, unless the defendant would agree to file it in the cas$ as evidence. Plaintiff also states that he intended no contempt or disrespect towards this court or its authority, but that in declining to give his testimony, at the time, thought he had a legal right to do so. Plaintiff states that his residence is in the town of Chelsea, Massachusetts; that he is now ready and willing to give his deposition in this case, and will, for that purpose, upon being notified, appear before any proper officer in the city of Boston, and submit to have his deposition taken in this case unconditionally. Henry R. Oobú'rn. Sworn to,” &e. This motion was sustained, the report of the referees set aside, and it was ordered that the referees proceed to hear the matters in controversy.

The referees proceeded, heard the case, and made their report, on which judgment was entered for the plaintiff. The record shows that the defendant excepted to the ruling of the court setting aside the first report of the referees, and that he made his motion to set aside the last report, which was overruled, and he excepted. The defendant made his motion for a review, &c., which being overruled, he brings the case here.

Now the only question of any weight is in relation .to the action of the court on the first report. Had the arbitrators the power to reject, or rather, to dismiss the plaintiff’s action ? And did the court below err in overruling this report of the referees, and in ordering them to proceed with the hearing ?

In the opinion of this court, the court below committed no error in overruling the report of the referees. This proceeding is based on the 11th and 12th sections of the 24th article of the practice act, which sections are as follows :

Sec. 11. A party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be subpoenaed or otherwise compelled to attend and testify, in the same manner and subject to the same rules of examination, and under like circumstances as other witnesses, and his deposition may be taken and used as that of other witnesses.

Sec. 12. If a party refuses to attend, as in the last section is prescribed, and testify either in court or before any person authorized to take his deposition, besides being punished himself as for a contempt, his petition, answer or reply may be rejected, or a motion, if made by himself, overruled, or if made by the adverse party, sustained.

The referees had no power to dismiss the suit, and the rejection of the plaintiff’s petition is nothing more than a virtual dismissal of the suit. The referees might very properly report the fact to the court of the plaintiff’s refusal to testify, and that, in consequence thereof, they deem it proper to proceed no further. When this is done, and the court, on motion, sets aside this report, and orders the referees to hear the cause, this court must consider such act as being completely within the discretion of the lower court, and, unless we see it abused, will not interfere by reversing.

Now the affidavit of the plaintiff, on the motion to set aside the first report, shows plainly that he had no design or intention to commit any contempt of court. It was a strange idea to him, that, in a suit at law, he could be called upon to testify. Hence his proposal to give his deposition, upon terms that, if the adverse party neglected to offer it, he might do so.

The court below would have acted indiscreetly, not to have set aside this report. There is nothing in the objection that the plaintiff ought to have waited until there was a judgment against him on the first report, and then have moved to set it aside, and fc? an order for further reference. It was as com-, petent and proper to set aside the report as to set aside the judgment on the report, if one had been rendered.

Upon the whole, then, we see no abuse of the discretion of the court below. Let the judgment be affirmed; the other judges concurring.


text:
    Clark, Plaintiff in Error, vs. Cable & Bofinger, Defendants in Error.
    1. A., party ef the one part, contracted in writing to sell to B. & C., parties of the other part, thirteen-sixteenths of a boat, in consideration of which, B. & C. agreed to pay a specified sum. A subsequent clause in the agreement provided that B. was to take an interest of nine-sixteenths, for which he was to give his own notes secured, and C. an interest of four-sixteenths, for which he was in like manner to give his notes. A. agreed to save B. & C. harmless from all liens and incumbrances upon the boat. Held, the contract was joint and not several, and after it was repudiated by B. could not be enforced against A. by C.

      Error to St. Louis Circuit Court.

    Action for the breach of a contract for the sale of a boat.
    The petition stated that the defendant, George W. Cable, by an agreement between him, as party of the first part, and the plaintiff and defendant, Bofinger, as parties of the second part, sold to the latter thirteen-sixteenths of the steamboat L. M. Kennett, then on her way from New Orleans to St. Louis, in consideration of which said plaintiff and Bofinger agreed ¡ to pay him $26,000 ; that it was further provided in said agreement that the plaintiff took an interest of nine-sixteenths, for which he was to pay one-third in cash,.,and .the balance in equal; payments at three, six, nine and twelve months, with interest, for which he was to give his endorsed notes, secured by mortgage and insurance on the boat, and Bofinger took an interest of four-sixteenths, to be paid for by him in like manner j that the defendant, Cable, agreed to pay and keep harmless the said plaintiff and Bofinger from all debts, dues and demands against said boat, accruing prior to their receiving possession ; that after the arrival of the boat at St. Louis, Bofinger having repudiated the purchase, so far as he was concerned, the plaintiff proposed to comply with his part of the agreement, and requested Cable to transfer and deliver to him nine-sixteenths of said boat, and also offered to take the four-sixteenths which Bofinger had agreed to purchase, on the same items ; but that the defendant, Cable, refused to transfer and deliver to the plaintiff either the nine or the thirteen-sixteenths of said boat. The petition further alleged that Bofinger refused to join as plaintiff, for which reason he was made a defendant. The plaintiff claimed damages for the breach of the contract. A demurrer to this petition was sustained bj the Circuit Court, and the case is brought to this court by writ of error.

      M. L. Gray, for plaintiff in error.
    1. The contract was several, not joint. Not only did Clark and Bofinger take a separate and distinct interest in the boat, but each gave his separate notes for the interest purchased by him. (1 Chitty’s PI. 11. 1 Saund. 153, notel. 11 Mo. Rep. 414. Thomas v. Pym, 4 Bibb, 420. Trustees of Perryville v. Letcher, 1 Monroe, 13. Ludlow v. McOrea, 1 Wend. 231. Ernst v. Bartle, 1 Johns. Cases, 321. Walker v. Webber, 3 Fairf. • 60. Blaheyv. Blalcey, '% Dana, 460.) 2. If Bofinger was not properly made a defendant, the suit may be dismissed ;as to him under thei new practice act-, and besides, it may be ,doubted whether that is a ground of demurrer by Cable.
    J. A. Kasson, for defendants in error.
    1. The contract vwas an entire one for the sale of thirteen-sixteenths of the boat, ;aád the repudiation by Bofinger nullified the whole contract, and discharged Cable. (Chambers v. Griffiths, 1 Esp. 150.) 2. There was a misjoinder of defendants. Bofinger had no interest in the suit adverse te plaintiff, (Prac. act of 1849, art. 3, § 6, 7,) and no judgment was asked against him.
   Scott, Judge,

delivered the opinion of the court.

There is nothing in the present practice act which affects the law of joint contracts.' That act deals only with the mode of procedure, and does not affect the law of contracts, as it existed prior to its enactment. If, therefore, an obligation is executed to two jointly, they must both sue upon it. One of the joint obligees, without the concurrence of the other, cannot maintain an action upon a joint contract. Unless both agree, there can be no action upon it. The repudiation of the contract by one of them discharges the obligor. One of two joint ob-ligees can release a joint obligation. It is an infirmity attached to the contract from its nature. The co-obligee cannot complain, as it was his own act to enter into a contract with another, who would have the right to control it. This rule of law, therefore, cannot be affected, nor the obligor deprived of the benefit of it by bringing suit in the name of one joint ob-ligee, and making the other a defendant. The offer or willingness of one joint obligee to perform the contract on the part of all the obligees, does not vary the matter. The contract, as made by the obligor, is a joint one, and one obligee against his consent cannot make it a several obligation. The obligor cannot be subjected to two suits for one cause of action by several obligees. What becomes of the interest of that obligee who is made defendant? Will he, a defendant, recover damages as though he was plaintiff, when he has refused to join ? Will the plaintiff only recover his portion of the damages ? Suppose that the obligee who is made defendant says in his answer that he refused to join at the time suit was brought, because he was not ready with his proof, and could not be, when the cause would be tried. What would be done then ? These and many other difficulties beset us in attempting this new way of bringing suits upon joint undertakings. (Slingsby’s case, 5 Coke, 19.) The words of the contract show that it was joint. The plaintiff, together with Bofinger, is called the party of the first part, and the defendant is termed the party of the second part. Thirteen-sixteenths of the boat are eonveyed jointly, and the promise to pay the consideration is a joint one, and the covenant against incumbrances is a joint one, and it is inserted after that part of the deed which, it is alleged, made it several. So the contract is joint in the beginning of it, and it is joint in the conclusion of it. Can any doubt exist that by the terms of the contract the plaintiff and Bofinger were ultimate sureties for each other to the full amount of the consideration agreed to be paid ? So much of the contract which relates to the part of the boat to be taken by each of the purchasers, and the mode of its payment, is an arrangement between the purchasers themselves, sanctioned, it is true, by the vendor, (the defendant,) not affecting the other provisions of the contract. If it is complied with, the obligation will be discharged ; but in the event of its non-fulfillment, the vendor is remitted to the general terms of the contract. There'is nothing in this portion of the contract which is inconsistent with the idea that the sale is a joint one. It is a rule of interpretation that subsequent words shall not defeat precedent ones, if by construction they may stand together. But where there are two clauses in a deed, of which the latter is contradictory to the former, there the former shall stand. The portion of the agreement relied upon as showing that it is several, is consistent with the other clauses of it, and they together make a whole contract, giving effect to all its parts, while the opposite construction takes away all effect from the most of its clauses. The words relied on, too, by the plaintiff are subsequent to those which make the agreement a joint one. No one will doubt but that the vendees might have jointly sued the vendor for refusing to convey the entire portion sold to them. This action is conceived on this supposition. Now, although a contract may be made in a way that the obligee may bring suit upon it at his election against the obligors, either jointly or severally, yet a contract cannot be made in such a way as that the obligees may, at their election, join or not. As to them, it is either joint or it is several ; it cannot be regarded as both joint and several. If it is joint, all must sue ; if it is several, it cannot be sued on jointly. As this action is conceived in the idea that Bofinger might have joined as plaintiff, it cannot, at the same time, be several, so that each vendee may have his action upon it. This is clear law. (Slingsby’s case, 5 Coke, 19.) This much is said as to this action in its present form. But, from what has been stated, we are of the opinion that the agreement to purchase is a joint one, and one party cannot maintain an action upon it in whatever way he may sue. . ,

The other judges concurring, the judgment will be affirmed.


author: Leonard, Judge,

text:
    Hall & others, Plaintiffs in Error, vs. Harrison, Defendant in Error.
    1. An administrator appointed in another state may maintain a suit in this state, upon a judgment recovered hy him in his representative capacity in the former state against a party who was a citizen of that state at the death of his intestate.
    2. A statement in a petition that the record upon which the suit is founded is filed with it, does not make the record a part of the petition, so that it can be noticed on demurrer.

      Error to St. Louis Court of Common Pleas.

    William Hall and James Hall commenced a suit in the Court of Chancery of the state of New York, against James Harrison and others. Harrison appeared to the suit and answered the bill. Pending that suit, James Hall died, and Lewis Hall, Benjamin E. Morgan and Maria Hall, as his administrators, were substituted in his place as complainants. The suit resulted in a decree in favor of the complainants against Harrison for the payment of a sum of money. The parties, complainants in that suit, instituted an action by petition in the St. Louis Court of Common Pleas, against Harrison, to recover the amount awarded by the decree. The petition stated that an authenticated copy of the record of the proceedings, which resulted in the decree, was filed with it. Harrison demurred on the ground that the plaintiffs, described as administrators of James Hall, showed no authority to sue as such under the laws of this state. The court below sustained the demurrer, and gave judgment for the defendant. There was no allegation in the petition as to the citizenship of Harrison at the death of James Hall.

      R. M. Field, for plaintiff in error.
    Administrators, having recovered a judgment in another state in their representative capacity, can sue upon that judgment in this state in their own right; and the statement that they are administrators is mere description. Several early English cases sustain the decision of the court below. These cases are: Hitchcock’s case, Cro. Eliz. 827. S. C. Saville, 130. Hargrave’s case, 5 Co. 31. S. C. Cro. Eliz. 711. Carew v. Broughton, Lane, 79. Riche v. Franjee, 2 Brownl. 202. Paule v. JMoodie, 2 Hall’s Rep. 132. Reynell v. Longcastle, Cro. Jac. 545. Townley v. Steele, Hutton, 78. Martin v. Hendley, Styles, 232. Glover v. Kendall, 1 Lutw. 369. Brookes m. Crooke, 1 Shower, 55. Waite v. Briggs, 1 Ld. Raym. 35. But these cases have all been since overruled. ( Crawford v. Whiitall, Douglass, 4, note. Bonafous v. Walker, 2 D. & E. 226. 1 Williams on Executors, 572.) The following American cases were cited : Talmage v. Chapel, 16 Mass. Rep. , Brodie v. Brickley, 2 Rawle, 431. Biddle v. Wilkins, 1 Peters, 686. TrecothicJt v. Austin, 4 Mason, 16. Stewart v. Richey, 2 Harrison’s (N. J.) Rep. 164. Savage v. Meriam, 1 Blackf. 176. Story’s Conflict of Laws, § 522. Leeompte v. Sargeant, 7 Mo. Rep. 352. Thomas v. Relfe, 9 Mo. Rep. 377. Abbots. Miller, 10 Mo. Rep. 141. Harney v. Butcher, 15 Mo. Rep. 89. A decree of a court of equity stands upon the same footing as a judgment of a court of law. (Penington v. Gibson, 16 Howard, 65.)

      Geyer & Dayton, for defendant in error.
    1. The petition discloses the relation of. the parties who profess to be administrators of James Hall, to the money sought to be recovered. Any money recovered would be assets in their hands, which cannot be withdrawn from this state but by the authority of its laws, and those laws require an administration by persons appointed for that purpose within the state. (R. C. 1845, p. 55 et seq. McCarty v. Hale, 13 Mo. Rep. Straddling v. Keeton, 15 Mo. Rep. Lee v. Harris, Brayton’s Rep. 93. Thompson v. Wilson, 2 N. H. Rep. 231. Toller’s Executors, (2d Am. ed.) 450. R. C. 1845, tit. Administration, art. 6, § 19, 22, 28, 24, art. 1, §48; tit. Judgments, § 16. Practice at Law, art. 5, § 8, 9 et seq. Story’s Conflict of Laws, § 513, 523. 1 Greenleaf’s Ev. § 544. 1 Johns. Ch. Rep. 153. 4 Gill & J. 332. 3 Mass. 304, 509. 9 Mass. 467.) 2. The record upon which this suit was founded and which was filed with the petition, shows no final decree.
   Leonard, Judge,

delivered the opinion of the court.

1. This case has been submitted to us upon written arguments, and the counsel seem not to have entirely concurred in their views of the questions of law proper to be discussed for the decision of the cause.

The plaintiffs labor to establish as a general proposition that, if an administrator recover a judgment upon a cause of action belonging to his intestate, he may afterwards sue on it in his own name without any reference to his representative capacity.

The defendant, assuming that the debtor was a citizen of this state when the intestate died, insists that our laws recognize no foreign testamentary jurisdiction over the debt, and that it must be collected by a home administrator, and administered here, at least until the claims of our own citizens are satisfied; and that no matter what effect the laws of New York or the common law may impute to the judgment, the foreign administrator cannot be allowed to defeat the policy of our own laws, by withdrawing in this manner the fund from the jurisdiction of our tribunals.

There seems to be no doubt of the correctness of the plaintiff’s position as a mere question of common law. The old cases, in which it was holden that an administrator could not sue in his own right upon a judgment recovered by him as administrator, are overruled, and it is now settled that he may do so. (Bonafous v. Walker, 2 Term Rep. 126. Crawford v. Whittall, Doug. 4, n. 1. 1 Wil. on Executors, 753. Talmage v. Chapel, 16 Mass. 71. Biddle v. Wilkins, 1 Peters, 686. 1 Williams on Executors, 748, note u, 753.)

None of the cases, however, we think, touch the point now made by the defendant. They declare the effect under the local law of a judgment recovered by an administrator, but do not pass on the question of the testamentary jurisdiction of one country over debts existing in another, and we do not see how this point can be raised upon the record now before us. Admitting that our own laws require us to declare that the state of New York had no testamentary jurisdiction over the debt now in controversy, if the debtor were a citizen of this state when the creditor died, there is yet nothing in this record disclosing that fact. If we are to infer that the defendant is a citizen of this state because he is sued here, we may infer that he was a citizen of New York when he was sued there. In the absence of all proof, however, our duty is to presume that the court in New York exercised such jurisdiction as it lawfully had, and then this judgment must be taken prima facie to vest in the plaintiffs a title to the money recovered, for which they may sue in their own names in our courts.

Let it be understood, however, that we express no opinion upon the merits of the defence set up by the defendant, which may come up hereafter, when all the necessary facts shall be before the court. Yet, it may not be improper for us now to make a remark upon the subject, without at all committing ourselves to any opinion, until tbe question shall be properly presented for our judgment.

It is generally said that debts have no locality, but, following the person of the owner in point of right, are disposable of like other personal property, according to the law of the domi-cil. (Story’s Conflict of Laws, § 376, 380, 383, 397, 398, and cases there cited.)

In determining, however, the question of testamentary jurisdiction over movables, corporeal and incorporeal, (I refer to the jurisdiction of the sovereign who grants the letters, and not to the jurisdiction of his tribunals under the local law,) reference must necessarily be had to their locality, which, if they be corporeal, is their own position in space, it' being that which necessarily subjects them to the protection and power of a sovereign ; but if debts, mere personal rights of action, the locality, to confer jurisdiction, it would seem, ought to be considered the residence of the debtor at the death of the creditor. It is to be remarked, however, that debts are due not only in the domicil of the debtor, but in the domicil of the creditor, and, indeed, when no place of payment is appointed, they are due and may be demanded any where, and if the debtor is found in the country of the domicil of the creditor, he would be suable there, and, it is said, could not defend himself by a plea that he was liable to pay only to an administrator appointed in the place of his own domicil. A voluntary payment, in such a case, to the administrator of the domicil, it is thought would discharge the debt, but Story doubts whether it would protect the debtor in a suit brought against him by an administrator appointed in his own domicil. (Story’s Conflict of Laws, § 512 to 517. Morton v. Milne., 6 Binney, 361.)

What effect each sovereign will give to its own judgments, in cases of this character, is a question of mere local law, but in a conflict of jurisdiction, each government must determine for itself how far, through' comity, it will give effect to the judgment of a neighboring state, when the effect will be to contravene its own domestic policy. The question, then, in the present case, if the debt recovered were due from one of our own citizens, owing no obedience to the laws of New York, is not whether the judgment recovered in New York by the administrator appointed there, has the effect, at common law, of making the debt recovered the property of the administrator, so far as to allow him to recover it at law in his own name, which would be a mere question of local law ; but whether our laws will give a judgment that effect, in reference to assets subject to our own testamentary jurisdiction, and in this indirect manner allow them to be withdrawn from our own control, until the just claims of our own citizens have been satisfied ? In other words, the question upon the case supposed will be, who, according to our laws, shall collect and administer these assets? May the foreign administrator collect them in our courts upon this judgment, and take them home to be there administered, or must an administrator be appointed here for the protection of our citizens having claims against the intestate?

It is proper also to remark, that it maybe made a question in this case, whether the debtor, after having submitted himself to the jurisdiction of a court in the domicil of the creditor, can make the objection here, and that too, when there is no administrator here demanding of him the fund, which, in the absence of claims here, must go to creditor’s domicil for distribution.

2. In reference to the other point made in the cause, we remark that the petition alleges a final recovery for a specific amount, and we do not consider that the transcript of the record of the alleged recovery is made part of this petition, so as to authorize us, by an examination of it, to sustain the demurrer, on the ground that it does not show a final recovery of any specific amount, as alleged by the plaintiffs.

The result is, the demurrer ought to have been overruled, the plaintiffs’ case, as stated, entitling them to a recovery. The judgment must therefore be reversed, and the cause remanded; and the other judges concurring, it is ordered accordingly.


text:
    Tigh, Defendant in Error, vs. Chouquette, Plaintiff in Error.
    By act of the general assembly approved February 13, 1833, the hoard of trustees of the town of Carondelet was authorized to sell and convey vacant or unoccupied lots to which the inhabitants had the legal or equitable title. The chairman of the hoard was authorized to execute deeds for the lots thus sold. An ordinance of the town was passed to carry this act into effect. Held:

    1. That the authority of the town, under this act, to convey a lot to which at the time it had the title, could not he disputed, on the ground that the lot was not vacant, by a party claiming under the town by title subsequent. The fact that there was a squatter upon the lot would not prevent it from being considered as vacant.
    2. That a deed executed by the chairman, in his own name, with the concurrence of the corporation, passed the title of the town. (Beilly v. Chou-quette, 18 Mo. Rep. 220, affirmed.)

      Error to St. Louis Court of Common Pleas.

    This was an action in the nature of ejectment for a lot in the north-east quarter of block 8T, in Eiler’s survey of the town of Carondelet. Roth parties claimed title under the town, the plaintiff under a deed dated September 1, 1834, and the defendant under a deed dated January 29, 1850.
    By the first section of an act of the general assembly approved February 13, 1833, the board of trustees of the town of Carondelet was authorized to sell and convey all the vacant or unoccupied lots in Eiler’s survey, to which the inhabitants had the legal or equitable title. By the third section of the same act, the chairman of the board of trustees, in their behalf, was authorized to execute deeds for the lots thus sold. On the 15th of July, 1833, the proper authorities of the town passed an ordinance, No. 19, to carry into effect the sections above referred to. This ordinance, however, was not in the record. Under this act and ordinance, the lot in controversy was sold to the plaintiff as a vacant lot. The deed was executed by the chairman of the board of trustees in the same form as the deed to the plaintiff in the case of Reilly v. Chou-quette, 18 Mol Rep. 221.
    The defendant’s title was as follows :
    The 4th section of the act above referred to authorized the board of trustees, in all cases where the legal or equitable title cf the inhabitants of the town was contested, to compromise with the adverse claimant, and authorized the chairman of the board to execute deeds in the manner prescribed by the third section. On the 2d of June, 1834, the board of trustees passed an ordinance, No. 31, the first section of which declared that that every inhabitant of the town who had been in possession of a lot prior to 1832, and had cultivated it, should be entitled to a deed for the same. The third section authorized the chairman of the board to execute the deeds.
    The defendant offered evidence to show that Antoine Motier settled on the north-west corner of block 87 as early as 1824, and built a house thereon, and made some improvements, which, on the 3d of August, 1833, he sold to Louis Fasseu. The deed to Fasseu described the lot conveyed as the north-west fractional quarter of block 87. Fasseu lived in the house until August 18, 1834, when he sold to the defendant. The deed described the lot conveyed the same as the deed from Motier. On the 29th of January, 1850, the board of trustees of the town of Carondelet executed to the defendant a deed for the whole of block 87. The deed purported to be executed pursuant to the third and fourth sections of the act of February 13, 1833, and ordinance No. 31. It recited that Motier was possessed of the lot from 1823 until 1833, when he sold to Fas-seu, who was in possession of the same until 1834, when he conveyed to the defendant, who had since continued in possession. There was no dispute but that this deed was executed in proper form to pass whatever title remained in the town. The defendant offered to prove that his fence, at the date of the deed to the plaintiff, included part of the lot in controversy, and so the same was not vacant. This evidence was excluded, and an exception taken.

      The defendant asked the following instructions, which were refused :
    1. The jury is instructed that the instrument read in evidence by the plaintiff is not the deed of the town of Carondelet.
    2. The jury is instructed that the said instrument is not sufficient in law to convey any title of the town of Carondelet to the land in controversy.
    3. The jury is instructed that the town of Carondelet had no authority to sell, under the 1st section of the act of February 13, 1833, any lots which were not vacant and unoccupied, and that any sale or attempt to sell, under that act, a lot actually occupied by any person holding adversely to the town of Ca-rondelet, was and is a nullity.
    Under other instructions given, there was a verdict for the plaintiff.

      T. T. Gantt, for plaintiff in error.
    1. The paper read in evidence, purporting to be executed by P. J. Shultz to the plaintiff, is not valid to convey any interest of the town of Ca-rondelet to the land in controversy. (Reilly v. Chouquette, 18 Mo. Eep. 220, and cases there cited.) 2. The act of February 13, 1833, conferred on the board of trustees of the town of Carondelet the right to sell only the vacant and unoccupied lots of Eiler’s survey ; and any sale of a lot held adversely to the town was under that act a nullity. (Id. ibid.)
    S. A. Holmes, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

1. The idea in which the defence of the plaintiff in error seems to be conceived, cannot be sustained. That idea is, that the execution of a deed for a lot in the town of Carondelet was the execution of a naked power ; and, unless all the circumstances existed that warranted its exercise, the act was void. It is believed that such is not the view to be taken of the act and ordinances under which the authorities of the town proceeded in settling the titles and disposing of her vacant and unoccupied lots.

The act of 13th February, 1833, conferred on the board of trustees of the town of Oarondelet authority to sell and convey, in fee, all the vacant or unoccupied lots of ground to which the inhabitants of the town had the legal or equitable' title. This act was passed, not because the property, whose sale was authorized, did not already belong to the inhabitants, but because it was held in common, and the act was passed to enable them to convey it in a corporate capacity. This statute conferred no title on any person who had not one previously. The power of ascertaining which of the lots were vacant or unoccupied, must have been given to the inhabitants. But such a power could not warrant them in disturbing the title of any individual which he possessed under any law or ordinance. Subject to this qualification, the inhabitants determined which of their lots were vacant or unoccupied. If there was a squatter on a lot, that would not prevent them from considering it as vacant. Public land, on which a settler is seated without authority, is, nevertheless, regarded as vacant. Under the first section of ordinance No. 31, Chouquette, on his own possession prior to the year 1832, was not entitled to a lot. He was not on the land personally until 1834. Although he may have availed himself of a derivative possession, yet he claims under those who only conveyed the north-west corner, or quarter of block 87. If, in his occupancy of that corner or quarter, he encroached on another lot in the same block, the subject of this suit, which was apparently vacant or unoccupied, or unclaimed, as appeared by Eiler’s survey, such encroachment would confer no title under ordinance No. 31. It would not rightfully prevent the lot from being considered as vacant by the inhabitants. In the case of Reilly v. Chouquette, 18 Mo. Rep. 227, this court held that nothing but bad faith and a wanton usurpation of power could avoid a deed of the inhabitant's under the act of the 13th February, 1833 ; that, if the circumstances existed under which they were warranted in acting, no error in judgment, no mistaken conclusion of law ’would be allowed to invalidate the act. The inhabitants, then, acting on this subject, and baying determined that this lot should be sold, there is no foundation in law for the plaintiff, claiming under them by a subsequent conveyance, to contest, on the ground of mistake or misapprehension, the correctness of that determination, whether made by the inhabitants or the chairman deputed by them. There is no hardship in this on Chouquette, who is merely asserting a title acquired from the inhabitants subsequent in date to that of the plaintiff. The law entrusted the inhabitants with the authority to sell and compromise their titles to the vacant lots in their village. They have done so, and in so doing have passed away a title. Now no one claiming under them subsequently can allege that their judgment was erroneously exercised, in coming to the conclusion that a lot was vacant.

2. The question as to the validity of the deed, growing out of the form and manner of the execution of it, we consider as settled by the case of Reilly v. Chouquette, to which reference has been already made. The deed in the present suit was executed under the third section of the act of 13th February, 1833. In the case cited, it was under the 4th section of the act, and that section provides that the deed under it shall be executed in the manner and under the restrictions prescribed by the 3d section of the act. Then, if the deeds are alike, as they are in respect to the matter to which objections are made, the deed under the 3d section must be valid.

Ordinance No. 19, approved July 15th, 1833, authorizing the sale of all the vacant and unoccupied town and out-lots of Carondelet, is not preserved in the record of this case ; but as no point was made on its absence, its omission cannot vary the judgment. The cause has been considered as though it was ia it. The judgment is affirmed; the other judges concurring.


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    The Board of President and Directors of the St. Louis Public Schools, Plaintiffs in Error, vs. Hammond, Defendant in Error.
    1. Margaret Laehaisse presented to the recorder of land titles a claim for confirmation. As evidence of her claim, she filed an order of survey by the Spanish lieutenant governor of land described as previously conceded to her, and the surveyor’s return, stating that he had put her in possession of the whole space of vacant land situate between the lot of Lecompte and the land conceded to Glamorgan, bounded on the west by Main street. The return further stated that the “ half moon,” forming part of the fortifications of the town, and situated on the margin of the rivex, was on the eastern end of the lot. The concession of Glamorgan extended to the x-iver, and was confirmed to that extent. The concession of Le-compte extended to the river, and was confirmed "the usual extent to- wards the l-iver.” The claim of Madame Laehaisse was reported by the recorder for confirmation, being described under the head of “ quantity claimed,” as the “ vacancy between Lecompte and Glamorgan,” and under the head of "where situate,” as a "lot in the town of St. Louis,” and was confirmed by the act of April 29, 1816. Held: The confirmation was for all the vacant land between Lecompte and Glamorgan, from Main street to the river, and not merely of a lot of the usual depth from Main street towards the river.

      Error to St. Louis Court of Common Pleas.

    This was an action of ejectment for a lot in the city of St. Louis, bounded south by Cherry street, west by Main street, and east by the Mississippi river, begun by the plaintiffs in error in 1840. It is the same case reported in 8 Mo. Rep. 65, where it was reversed and remanded, and now comes here after another trial.
    The ground in controversy was within the limits of the town of St. Louis as it stood incorporated on the 13th of June, 1812, and was, in February, 1840, surveyed, designated and get apart to the plaintiffs, under the second ^eetion of the act of congress of May 26, 1824, as land which had been reserved for the support of schools by the second section of the act of June 13, 1812.
    The defendant’s title was under a confirmation to Margaret Lachaisse, by the act o£ April 29,1816, and the only question now argued by the plaintiffs in error in this court was as to the extent of this confirmation, they claiming that it did not extend east to the''river, and so did not include a portion of the ground in dispute.
    The lot confirmed to Madame Lachaisse was described by Recorder Bates, in his tabular report, under the head of “ quantity claimed,” as “ vacancy between Lecompte and Gla-morgan,” and under the head of “where situate” as “ lot in town of St. Louis,” and this was the only matter of description in the confirmation itself. As evidence of her claim to a confirmation, Madame Lachaisse had filed with the recorder a petition by her to the Spanish lieutenant governor, Delassus, ’an order of survey by the lieutenant governor, and the surveyor’s return. The petition was dated November 20,1803, and stated that the petitioner, previously, in 1802, had applied for the grant of a lot “ bounding on Mr. Nicholas Lecompte to the north of this village,” and that application had been made to Soulard for the survey, who had put her off with excuses of opposition by Lecompte, &e., and she now prayed for an order on the surveyor to put her in possession of the lot petitioned for,, and which had been granted her.
    On the 21st of November, 1808, Delassus issued an order that Soulard should notify Lecompte to exhibit his title, and upon his failure to do so, that he (Soulard) should survey the land (“¿erre”) “by us conceded to the said Madame La Caisse in the year 1802.”
    On the 29th of January, 1804, Soulard made his written return upon this order, as follows :
    “ I, the undersigned, in virtue of the foregoing decree, have, on the 15th of January, of this year, put Madame widow La-quaisse in possession of the whole space of vacant land (¿erre) at the north of this town, situate between the lot (terrein) of Mr. Nicholas Hebert Lecompte and the land, (¿erre,) which was conceded to Mr. Jacques Clamorgan by the lieutenant governor, Don Carlos Dehault Delassus, under date of 28th Novena-her, 1799, which space of land could not be determined by regular survey in consequence of the difficulties which Mr. Nicholas Hebert Lecompte encountered in establishing, in a legal manner, his rights as to the true extent of the land which he occupies, and for want of knowing whether there ought to be there a cross street between the lot of the said lady and that of the said Nicholas Hebert Lecompte, or whether the same should be between that of said widow Laquaisse and the land of Mr. Jacques Glamorgan. In faith whereof, we have delivered these presents to said lady, for her to use, whenever necessary or reasonable, for establishing the legality of her rights to the ownership of the whole vacant space existing between the lot of the said Nicholas Hebert Lecompte and the land (ierre) of Mr. Jacques Clamorg n, less the cross street which may be fixed by authority, whether to the south or to the north of said lot, which is (se trouve) bounded on the front by Main street, and on its depth by that which shall be determined in this regard, seeing that the Half Moon, situated on the margin of the river, and forming part of the fortifications of this town, is situated on the east part of said lot, the whole of right to be subjected to regular measurement, fixing of land-marks, copy of certificate of survey, registry of same, &c., the moment that said existing obstacles shall be removed by proper authority. St. Louis of Illinois, 29 January of the year 1804. Antoine Soulard.”
    The defendant gave in evidence the concessions to Lecompte and Glamorgan, both of which called for Main street on the west and the river on the east. The concession of Glamorgan was confirmed on the 20th of September, 1810. The claim of Lecompte was confirmed by the recorder in these words : " Confirmed, the usual extent towards the river, and survey.”
    The defendant also gave in evidence the concessions to Antoine Soulard, Antoine Roy, Bmilien Tosti, Hyacinth Egliz .and Pierre Chouteau of tracts of land lying along the river in succession, north of Glamorgan’s tract, and east of the common .field .lots..

      A. H. Evans and J. 0. Brown, surveyors, called as witnesses, stated that in surveying the Lachaisse lot, they would run. to the river. Brown stated that in surveying a lot in that part of the town, laid out into squares and surrounded by cross streets, if no depth was mentioned, he would go to the depth of 150 feet, but would not do so along the river, nor would he do so in the vacant space between Glamorgan and Lecompte, as it was beyond the limits of the old town. Being asked how he would survey the confirmation to Lecompte, he stated that he would survey it 150 feet, French measure, from Main street towards the river. He would survey a town lot, granted and confirmed as such, without any specific calls, to the depth of 150 feet. A lot east of Main street, without calls, was understood to be 150 feet.
    The plaintiffs then asked the following instructions, among others :
    1. The confirmation by the act of April, 1816, of a lot in the town of St. Louis to Margaret Lachaisse, as described in the report of the recorder of land titles given in evidence in this case, operates as a confirmation of a lot of the ordinary extent from Main s treet towards the river.
    2. If the jury find that the ordinary depth of a lot east of Main street was, on the 20th of December, 1803, 150 feet, French measure, then the confirmation to Madame Lachaisse is limited to that extent.
    These instructions were refused, and the plaintiffs excepted.
    There was a verdict for the defendant, and the plaintiffs bring the case to this court by writ of error. The cause was submitted at the March term, 1854. Briefs are found on file by

      Edward Bates, for plaintiffs in error,
    and by

      Josiah Spalding, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

The plaintiffs in error, both in the court below and in this court, maintain that the extent of the lot confirmed to Madame Lachaisse is a question of law, arising from the documents in evidence, and in the brief submitted to the court, that is the sole question presented for our determination.

Without expressing an opinion as to the absolute extent of the confirmation, under all circumstances, we are led to the conclusion that all the land that could be conceded by public authority, between Main street and the river, was granted to Madame Lachaisse, her northern and southern limits being defined in her concession.

It does not appear that there has been any survey of the grant to M. Lachaisse, and we are thrown on the concession itself and the documents in the cause, in order to ascertain its extent.

On the north, the Lachaisse grant was bounded by Glamor-gan, and on the south by Lecompte. Both of these concessions call for the river as their eastern boundary. Madame Lachaisse’s grant was bounded by the concessions themselves, and not by the confirmations, which might afterwards be made of them.

As the claim of Lachaisse is confirmed by Recorder Bates as a lot, it is contended that it must be of the usual dimensions of a lot, 120 by 150 feet. Whatever weight this argument might have, under some state of circumstances, it cannot prevail against the array of facts which attend this case. The report of the Spanish surveyor, deputed to survey the concession, shows, clearly, that it extended to the river. Its northern and southern boundaries are the concessions of Glamorgan and Lecompte. Glamorgan’s concession is confirmed to the river. Lecompte’s is confirmed to the usual extent towards the river. If Lecompte’s confirmation was only 150 feet deep, yet, as Glamorgan’s ran to the river and was the northern boundary of Madame Lachaisse, and as the Half Moon, which is on the margin of the river, is stated in surveyor Soulard’s return, which is a part of the evidence of the claim as filed, to be on the lot of widow Lachaisse, it is evident, on the face of the claim, still that it ran to the river. As the claim comprehended the whole vacant space between Glamorgan and Lecompte, and both of these concessions call for the river as the eastern boundary, the extent of the confirmation does not depend on what was the usual depth of lots. Experienced surveyors, skilled in making surveys in this locality, and under similar concessions, express the opinion that the claim should be surveyed as extending to the river. This, though no evidence for jurors in locating a grant, (8 Mar. La. N. S. 695,) yet judges may regard it in the formation of their opinions. Under the Spanish government, lots within the town were conceded with the river as a front. It was a matter of doubt whether the lot was within or without the limits of the old town. Instances were produced in which lots exceeding in extent the ordinary size, were conceded by the Spanish authorities.

The judgment is affirmed.

Judge Ryland concurs. The cause was submitted before Judge Leonard came upon the bench.


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    The City of St. Louis, Appellant, vs. Toney, Respondent.
    1. A confirmation by the act of June 13, 1812, Was absolute, depending only on the fact of inhabitation, cultivation or possession prior to December 20, 1803, and was not forfeited by the failure of the claimant to prove up his claim under the act of May 26,1824.
    2. An official survey of a claim confirmed by the act of July 4, 1836, may be used as evidence of the locality and extent of the same elaim confirmed by the act of June 13, 1812.
    3. A confirmation of a lot by the act of June 13, 1812, enured to the benefit of the last claimant, where there had been several successive transfers, whether before or after the change of government

      4. A confirmation by the act of 1812 is not limited in extent to the spot actually inhabited, cultivated or possessed prior to December 20, 1803, but was for the lot claimed.

    5. It seems that the affidavits before the board of commissioners, and recorder of land titles, although not. evidence of the fact of inhabitation, cultivation or possession prior to December 20, 1803, might be competent evidence for some purposes. At all events, a case will not be reversed, because, after they were read in evidence without objection, they were not, at the close of the case, withdrawn from the jury by instruction.
    <a. As to what is an " out-lot” within the meaning of the act of 1812.

      Error to St. Louis Circuit Court.

    This was an action in the nature of ejectment for about forty-nine acres of land claimed by the plaintiff as a part of the St. Louis common, confirmed by the act of congress of June 18, 1812, and within Brown’s ofiicial Surrey of said common. The defendant claimed title under a confirmation by the act of June 13, 1812, by virtue of the inhabitation, cultivation and possession prior to December 20, 1808, of Joseph Motard and those claiming under him, and also under a confirmation by the act of July 4,1836.
    At the trial, the plaintiff exhibited the following evidence of title :
    1. Acts of congress of June 13, 1812, May 26, 1824, and January 27, 1831.
    2. Proceedings before the old board of commissioners, and before the recorder of land titles under the act of May 26, 1824, upon the claim of the inhabitants of St. Louis to common.
    3. United States survey No. 3125 of the St. Louis common.
    4. Confirmation certificate No. 72, issued by the recorder of land titles, and dated May 7, 1851.
    5. Act of the legislature of the territory of Louisiana, approved June 18,1808, authorizing the St. Louis Court of Common Pleas to incorporate the town.
    6. Eecord of the incorporation of the town of St. Louis by the St. Louis Court of Common Pleas.
    7. Acts of the legislature of the territory of Louisiana, approved January 15,1813, and January 21, 1815.
    8. Acts of the general assembly of Missouri, approved December 19, 1822, January 15, 1831, February 26, 1835, March 18, 1835, January 18, 1837, February 8, 1839, February 15, 1841, and February 8, 1843.
    9. It was admitted that the land in dispute was within survey 3125, and that the defendant was in possession at tbe commencement of this suit.

      The defendant then offered tbe following evidence :
    1. A deed from Joseph Motard to Patrick Lee, dated November 7, 1800, conveying, among other property, "upwards of seven arpens of land in front by upwards of forty in depth, situate in the prairie called Cul de Sac, against the river of the mill of Don Auguste Chouteau.” The granting words of the deed are, "sold, ceded, transferred and abandoned.” It was executed before Don Carlos Dehault Delassus, lieutenant governor of Upper Louisiana.
    2. A deed from Patrick Lee to Calvin Adams, dated August 22, 1803, conveying the same property by the same granting words, and executed in the same manner, as the deed last referred to.
    3. Petition from Calvin Adams to Delassus, dated January 20, 1804, praying for an order of survey of the land purchased of Lee, with an order “signed by Delassus endorsed upon it. Also a plat and survey by James Mackay, dated November 16, 1805, " of 1340 arpens of land, French measure, situated on Mill creek, at a place called Motard’s plantation, and surveyed at the request of Calvin Adams as his claim to a settlement right by virtue of the act of Congress of March 2, 1805, as also by virtue of a purchase from said Motard for a part of said claim or tract.” This survey was recorded by Antoine Soulard, signing himself “ Surveyor General Ty. Louisiana,” on the 16th of January, 1806.
    An objection to the admission of these documents in evidence, on the ground that they were dated after the change of government, was overruled, and an exception taken.
    4. Proceedings before the old board of commissioners upon the claim of Calvin Adams, as assignee of Patrick Lee, to 1340 arpens of land. The claim was rejected. Also, proceedings before the board of commissioners under the act of July 9, 1832, and the supplementary act of March 2, 1833, which resulted in the confirmation to Joseph Motard, or his legal representatives, of 280 arpens of land, by the act of July 4, 1836. These proceedings contained the affidavits of witnesses examined before the commissioners to the fact of cultivation and possession by Motard prior to the change of government, and that the land so cultivated was outside of the fence of the St. Louis common, as it then ran, and were read in evidence without objection at the time.
    5. United States survey No. 8182 of the 280 arpens confirmed to Motard or his representatives by the act of July 4, 1836.
    This survey was objected to by the plaintiff, on the ground that, being a survey of a confirmation by the act of 1836, it was incompetent evidence against the plaintiff’s title.
    6. A deed from Calvin Adams to David Musick, dated January 22, 1808, for 1340 arpens, described as claimed by Adams, in part, as a settlement right, and in part by purchase from Patrick Lee. The defendant showed a derivative title under David Musick.
    7. Oral evidence that prior to December, 1803, Joseph Mo-tard, who himself resided in the village of St. Louis, had servants upon and cultivated a part of the tract of 7 by 40 ar-pens, which includes the land in dispute, and that it was after-wards cultivated by Calvin Adams and those claiming under him, from 1807 down to the commencement of this suit; and also evidence tending to show that said tract was a part of the Cul de Sac common fields, and was outside of the old inclosure of the St. Louis common..
    The plaintiff, in rebuttal, gave evidence tending to show that said tract of 7 by 40 arpens was not a part of the Cul de Sac common fields, and that a part of it was inside of the old inclosure of the St. Louis common.
    ' The following instructions asked by the defendant were given, to which the plaintiff excepted :
    1. If the jury find from the evidence that the tract of 7 by 40 arpens surveyed to Motard is located adjoining or near the former town of St. Louis, or the common fields in, adjoining or belonging to the same, and that the same, or some part thereof, was, prior to 20th day of December, 1803, inhabited, cultivated or possessed by the said Joseph Motard, and those claiming under him, and that the defendant is in possession of a part of said tract or lot of 7 by 40 arpens, deriving title from said Joseph Motard, and that Joseph Motard, prior to the time last mentioned, had his residence in the said town of St. Louis, and by himself, his servants or agents, occupied, possessed and cultivated the said tract, or some portion thereof, as a farm or lot in the vicinity of said town, then the jury are instructed that the lot of 7 by 40 arpens is an out- lot, within the true intent and meaning of the act of the 13th of June, 1812, and the defendant is, upon that state of facts, entitled to a verdict.
    2. A common field lot, within the meaning of the act of (as described by our Supreme Court) June 18th, 1812, is a lot in the neighborhood of one of the villages or towns enumerated in said act, used by an inhabitant of said town or village for purposes of cultivation. Said common field lots being in the form of parallelograms, and usually forty arpens in depth and one or more arpens in width, lying adjacent to each other in the same general range of lots. It is not essential, to constitute a common field lot, that there should have been any written grant or official survey thereof.
    3. If, therefore, the jury find from the evidence, that Joseph Motard, prior to the 20th of December, 1803, was an inhabitant of the town of St. Louis, and before that day inhabited, cultivated and possessed an out-lot or common field lot, claiming the same as owner, and that said Motard or any person or persons who had acquired his right, title and claim to said lot, continued to claim said lot down to the 13th of June, 1812, and that the land in dispute is included within the boundaries of said lot, the plaintiff is not entitled to recover in this case.
    The following instructions asked by the plaintiff were refused :
    1. The act of 1824 required all private claimants of town or village lots, out-lots or common field lots, under the act of 13th June, 1812, to appear before the recorder of land titles within eighteen months of the 26th May, 1824, and prove the facts of inhabitation, cultivation and possession, and the extent and boundaries of their claims. Those who did not c'omply with this provision are barred of all benefit of the act of 18th June, 1812.
    2. The act of May 26, 1824, required all private claimants of town or village lots, out-lots, or common field lots, under the act of the 13th of June, 1812, on the ground of cultivation, inhabitation or possession, prior to the 20th December, 1803, to proceed within eighteen months after the 26th May, 1824, to designate their said lots, by proving before the recorder of land titles the fact of inhabitation, cultivation or possession, and the boundaries and extent of their claims. Those who did not comply with this provision are barred of all benefit of the act of 13th June, 1812, and a survey made by the surveyor general, under the act of May 26, 1824, of the St. Louis common, cannot be impeached by a private claimant, who failed to make proof, as aforesaid, before the recorder of land titles, within eighteen months after the passage of the act of 26th May, 1824, as prescribed by that act.
    3. If any person claimed a lot of ground by virtue of in-habitation, cultivation or possession, under the act of 13th June, 1812, then the act of 26th May, 1824, required that the fact of such inhabitation, cultivation or possession, and the boundaries and extent of such claim, should be proved before the recorder of land titles during the years 1824 and 1825, to enable the surveyor general to distinguish the private from the vacant lots, &c. ; and no such steps having been taken by Motard or his representatives, or any other person, under the act of 1824, nor any authoritative location or survey of the land made at any time, as confirmed by the act of 1812, the evidence given in this case will not enable the defendant to resist a recovery by the plaintiff.
    4. The jury is instructed that, there having been no concession, nor grant, nor survey, nor permission to cultivate or possess the land claimed bj the representatives of Joseph Motard, issued to said Motard, or Patrick Lee, or Calvin Adams, under the French or Spanish government or authorities, and no location of said claim under the French or Spanish government, and no proof having been made at any time by Joseph Motard, or those claiming under him, nor by any other person, of any inhabitation, cultivation or possession, or of the location or extent of said claim, either under the provisions of the act of 13th June, 1812, or any act supplementary thereto, before the United States recorder of land titles, or other United States authority, and there having been no survey or location of said land by or under the provisions of said acts, by any rightful authority, the defendant cannot now avail himself of any merely parol evidence to locate said claim, and prove inhabitation, cultivation or possession thereof, so as to entitle himself to a confirmation by virtue of the act of June 13, 1812.
    5. The survey made by the United States, number 3125, taken in connection with the acts of 13th June, 1812 and May 26, 1824, is equivalent to a patent from the United States to the inhabitants of St. Louis, granting them the land described and embraced in said survey.
    6. Survey No. 3125, being the survey of the St. Louis common by the authority of the United States, is conclusive evidence in this case, of the true location, extent and boundaries of the St. Louis common.
    7. The survey No. 3182, given in evidence by the defendant, is no evidence of the location, extent or boundaries of any tract of land confirmed by the act of 13th June, 1812, or any act supplementary thereto, but only of the location, extent and boundaries of a tract of land confirmed by the act of the 4th July, 1836.
    8. The defendant cannot resist a recovery in this action by virtue of any title derived under the act of July 4, 1836. The survey of the common, made between November 2, 1832, and 13th May, 1833, and given in evidence by the plaintiff, is conclusive against all title to the premises in controversy under tbe act of July 4, 1886.
    9. The jury is instructed, that, if they believe from the evidence that Joseph Motard executed and delivered the deed given in evidence by the defendant, dated 7th November, 1800, then there was no confirmation to said Motard by the act of 13th June, 1812, as to the land described in said deed.
    10. The jury is further instructed that, if they believe that Patrick Lee executed and delivered to Calvin Adams the deed given in evidence by the defendant, dated 22d August, 1803, then there was no confirmation to Patrick Lee by the act of 13th June, 1812, of the land described in said deed.
    11. -The jury is further instructed that, unless they believe from the evidence that Calvin Adams, in the interval between 22d August, 1803, and 20th December, 1803, inhabited, cultivated or possessed the land described in said last mentioned deed, then there was no confirmation to him of the land described therein, by the act of 13th June, 1812.
    12. The jury is further instructed that, if Calvin Adams, on the 22d January, 1808, in good faith, executed and delivered to David Musick the deed to him of that date, read in evidence by defendant, there could be no confirmation to said Adams, under the act of 13th June, 1812, of tho premises therein described.
    13. The statute of limitations did not begin to run against the plaintiff in this cause prior to the 13th day of May, 1833, the date of the survey of the common of St. Louis.
    . 14. The statute of limitations did not begin to run against the plaintiff in this cause prior to the 27th January, 1831.
    15. The term out-lot was not known to the laws applicable to the land in the territory of Missouri, until after the act of congress of the 13th June, 1812, and no lot or parcel of land can be an out-lot, within the meaning of the law, in regard to which no proof has been offered before any recorder of land titles, or other United States authority, since the said 13th June.

      16. There is no evidence in this cause tending to show that the farm of Motard was an out-lot.
    17. The act of congress of 13th June, 1812, confirmed only so much land as was inhabited, cultivated cr possessed by the claimant prior to the 20th December, 1808, where such claim was not definitely located and bounded.
    17. The affidavits of the witnesses, as contained in the copies of the proceedings of the board of commissioners, and of the recorder of land titles, read in this cause, are not evidence iu the case of the facts therein stated.
    19. The title to the land described and embraced in survey 3125, given (as supposed in instruction No. 5) to the inhabitants of St. Louis, was vested in the city of St. Louis, by the several acts of the legislature of Missouri, read in evidence.
    The court, of its own motion, gave to the jury the two following instructions :
    1. By the several acts of congress and of the state of Missouri, read in evidence, in connection with survey No. 3125, plaintiff has succeeded to all the rights of the inhabitants of said St. Louis, in and for the land embraced and described in the said survey.
    2. The jury are instructed that no defence arising under the statute of limitations has boon established, and the same will therefore be disregarded by them.
    There was a verdict for the defendant, and the plaintiff brought the case here by writ of error. The cause was argued at the October term, 1854, by
    Mr. Polk, for plaintiff in error, and by Mr. Geyer, and Mr. Shepley, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

The principal question involved in this controversy has, during its pendency, been determined by the Supreme Court of the United States, in the case of Guitard et al., v. Stoddard, (16 Howard, 494.) That case settled that a confirmation by the act of the 13th June,-1812, was absolute, depending only on the fact of inhabitation, cultivation or possession prior to the 20fch December, 1808; and that' it was not necessary for the confirmee to have received from the Spanish government a grant or survey, or permission to occupy or cultivate the land claimed ; that the act of 26th May, 1824, requiring claimants to designate their lots by proving the facts therein specified, imposed no forfeiture for a failure to comply with its terms, nor were the claims, as confirmed by the said act of 1812, in any way impaired by such omission ; but claimants might still establish their titles by parol evidence of those facts, for which they were confirmed by the said act.

The main question in the cause having been determined by that tribunal, whose judgments in matters involving the construction of the laws of the United States are conclusive, we will proceed to examine some other points presented to our consideration, necessary to a final determination of this controversy.

The case above referred to disposes of the 1st, 2d, 3d, 4th and 15th instructions aslced by the plaintiff and refused, and the others will be reviewed in their numerical order.

There was no error in refusing the fifth instruction, because it contains no reference to the act of 27th January, 1831, along with the other acts mentioned, without the aid of which it is conceived that the city cannot maintain a suit for the common. (Les Bois v. Bramell, 4 Howard, 469.)

Instruction numbered six was properly refused, as it maintained that a confirmation and survey under the act of 1812, was a better title than a confirmation under the same act, with proof of inhabitation, cultivation or possession, which is contrary to the doctrine asserted in the case of Guitard v. Stoddard, above referred to.

The seventh instruction, in relation to survey No. 3182, which was a survey of the Motard claim, as confirmed by the act of July 4, 1836, was too general in its language, as the effect of it was to deprive that survey of all validity whatever, taken disconnected with the act of July 4th, 1836. Whereas, it is conceived that that survey is evidence of the locality of the claim of Motard, under whatever law it is regarded. The claim under which the defendant held was recognized by the Spanish lieutenant governor, in witnessing its several transfers. That claim, it is alleged, was confirmed by the act of 1812. The same claim was afterwards presented to a board of commissioners , and was by them confirmed. It was then surveyed under the authority of the laws of the United States, by virtue of this last confirmation. Now it is conceded that a confirmation under the act of 1836, and a survey thereupon, is an inferior title to a confirmation and survey under the act of 1812. But what principle is violated by the use of the survey under the act of 1836, as mere evidence of the locality of a claim under the act of 1812 ? It is an authoritative act of a public officer. As such, it was referred to by the plaintiff in her petition to designate a boundary of the land sued for. Of itself, it conferred no title. It was not given in evidence with any declaration that it had any such effect, but simply quantum valeat valere po-test. If two claims are for the same tract of land, why should not the location of it under one of them be used indiscriminately for showing the land claimed ?

Complaint is made for the refusal of the eighth instruction, as it contained a correct legal proposition and was relevant. The case as made by the instructions given for the defendant did not turn on any title derived under the act of July 4, 1836, but rested for its validity on the act of 1812, and the proof of the facts thereby required. The refusal, therefore, of the court to grant it would not be apt to affect injuriously the rights of the plaintiff. But this is no answer to the objection. The first proposition contained in that instruction was undoubtedly the law as established by the decisions of the Supreme Court of the United States in the cases of Mackay v. Dillon, and Les Bois v. Bramell, (4 Howard, 421 and 449.) These cases fully maintain that a confirmation and survey of the commons, under the acts of 1812 and 1824, is a superior title to any derived by confirmation and survey under the act of July 4, 1836. The last clause of the instruction under examination would make the survey alone, disconnected with the acts of 1812 and 1824, conclusive. When a party seeks to reverse a judgment for the refusal of an instruction, the refusal of which, it is claimed, might possibly have injured him, and when the judgment might well stand consistently with the hypothesis assumed in the instruction refused, and by the instructions given was made to stand on a different hypothesis altogether, that instruction must be omni excepiione majore.

The ninth, tenth, eleventh and twelfth instructions required the court to declare, as law, that the claimant, under the act of 1812, must be the same person who cultivated the lot prior to the 20th December, 1803 ; that the act of 1812 is only available to those who continued to retain their claims arising under the Spanish government, until the date of its passage. It is clear that, if a claim was abandoned, it had no existence at the date of the act, and could not, therefore, be confirmed. But it is conceived that a claim, whether it was transferred before or after the change of government, was not affected by any disposition made of it. If the inchoate right, commencing under the Spanish government, continued in existence until the act of 1812, it was confirmed without regard to the number of alienations to which it had been subjected, and enured to him who was entitled to it, whether he claimed by purchase or descent. The confirmation was to the original claimant or his legal representatives, without regard to the date of the alienation. This, it is believed, has been the uniform interpretation of the act. The construction contended for by the plaintiff would leave most of the claims in existence at the date of the act unconfirmed.

The thirteenth and fourteenth instructions relate to the statute of limitations, about which there is no controversy.

The subject of the sixteenth instruction will be considered in connection with the instructions given for the defendant.

The seventeenth instruction is in these words : The act of congress of the 13th June, 1812, confirmed only so much land as was inhabited, cultivated or possessed by the claimant prior to tbe 20th December, 1803, where such claim was not definitely located and bounded.” The claims contemplated by the act of 1812 must have had existence under the Spanish government. The claim of Motard was recognized by the Spanish authorities. It was seven by forty arpens, lying in the Cul de Sac fields, against Little river. There seems as much definiteness here as in many claims confirmed by the act of 1812, and it has never been thought that the rights of claimants, in such cases, were limited to the spot actually inhabited or cultivated. Such a view is contradicted by the prevailing opinion in relation to this subject. It is not the possession that is confirmed by the act, but the right and claim to a lot inhabited, cultivated or possessed prior to the 20th December, 1803. Possession is the evidence of the existence of a claim, but not of the entire extent of it — at least not the only evidence. The extent of a claim resting on no grant nor concession, but on matters in pais, would be a very proper subject for the consideration of a jury. No documentary evidence or authoritative location or ascertainment of boundaries was a pre-requisite to a confirmation under the act of 1812. ( Guitard v. Stoddard, 16 Howard.) There was evidence in the record of the extent of the claim of Motard.

The eighteenth instruction relates to the affidavits of witnesses, as contained in the copies of the proceedings of the board of commissioners, and of the recorder of land titles, read in evidence, and asks that the jury be directed that they are not evidence in this case of the facts therein stated. The plaintiff read a portion of these depositions, on her part, without objection. That must have been done with some view. They must have been regarded as evidence for some purpose. It is clear that they were not evidence for the purpose of establishing the fact of inhabitation, cultivation or possession, as required by the act of 1812, on the part of the defendant, and should not. have been listened to by the jury for any such purpose. But. the instruction is not thus limited in its operation. In its-scope, it would deprive the affidavits of all efficacy for any purpose whatever. If the affidavits are not evidence of the facts in them stated, then they would be no evidence at all; no use could be made of them as evidence. The directions as to the effect of evidence should be given at the time it is delivered. The course adopted by the plaintiff might lead to surprise. If evidence is permitted to be introduced without objection, and the party producing it lets it remain with the jury until the case is closed, and then, by instruction, seeks to avoid the effect of it, his adversary might be deprived of testimony which might otherwise have been supplied. We are not prepared to say that the affidavits are evidence for no purpose. They have been used to give locality to a claim without objection, and we see no reason why they might not have been so used in the case before us.

The instructions given at the instance of the defendant, defining an out-lot within the meaning of the act of 1812, are complained of as not being in conformity to law. It is main-stained that an out-lot, within the terms of the act, must be both adjoining and belonging to the town or village of which it is an appurtenant; or, if not so, it must at least be shown to be adjoining the town, or a civil dependency appurtenant to it. It has been said that the question as to what is an out-lot, is a mixed question of law and fact. But it appears to me, that .-subject to the control in granting a new trial, it is mainly a • question for a jury. No court, by a prospective definition, can embrace all the lots which would come under the class of “ out-dots.” Bach lot must depend on the evidence in relation to it, In order to its classification. It is obvious that it is not necessary that a lot should touch the town to make it an out-lot. If it is adjacent to the common fields, it is near the town, as the (Common fields must, in the words of the act, be adjoining and belonging- to the town. That the lot was cultivated by an inhabitant of the town, is some evidence of its dependence, or of its belonging to it. The fact that the claimant must be an inhabitant of the town, in order to be entitled to a confirmation, does not deprive this circumstance of its weight, in showing that the lot was a dependency, taken in connection with its contiguity to the town. The plaintiff claims the land in controversy as a part of a civil dependency of the ancient village. On its being such, her right to maintain her action depends. It must be adjoining and belonging, in order to be commons. If it is sufficiently adjoining and belonging to be commons, why not so to be an out-lot; for it is only necessary that a lot should be adjoining and belonging to the town, to be an out-lot in the words of the law. In our opinion, there was nothing in the instructions given on the subject of what constituted an out-lot, to induce us to disturb the judgment, considering the subject of the action instituted by the plaintiff.

Judge Ryland concurring, the judgment will be affirmed. Judge Leonard was not upon the bench when the case was heard.


author: Ryland, Judge, Scott, Judge.

text:
    The State, Respondent, vs. Page, Appellant.
    1. It is within the discretion of a. court, at the close of the evidence in a criminal case, to limit the time to be occupied by the defendant’s counsel in addressing the jury ; and the supreme court will not interfere unless the discretion has been manifestly abused. (Scott, J., dissenting, holding that the time eould not be limited in advance.)

      Appeal from, Washington Circuit Court.

      C. Jones, for appellant.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted for trespassing on a sixteenth section of land in Washington county. After the case was closed on both sides, the court stated that defendant’s counsel could only address the jury for thirty minutes, and afterwards stated that the defendant’s counsel could only address the jury for fifteen minutes. The defendant’s counsel objected, and excepted to this ruling of the court.

The defendant’s counsel then addressed the jury, and the court held a watch, and after a short time, announced that the counsel had spoken fifteen minutes, and must stop ; the counsel thereupon stopped, and the jury retired.

They afterwards returned with a verdict of guilty, and assessed the defendant’s fine at one hundred and sixty dollars. The fine was afterwards reduced by the court to one hundred dollars. Motions for new trial and in arrest of judgment being made and overruled, the defendant brings the case here by appeal.

The only question of any importance appearing on the record arises upon the refusal of the court to let defendant’s counsel speak to the jury longer than fifteen minutes.

Can the Circuit Court limit the time in which a defendant’s counsel shall address a jury in a criminal case ? By the 18th article, section 9, of the state constitution, it is declared that, “ in all criminal prosecutions, the accused has the right to be heard by himself and his counsel.” Now, in the nature of things, there must be some discretion left with the courts who have criminal jurisdiction in this matter. How long has the accused and his counsel a right to consume the time of the court in their exercise of this right ? There must be a limit to it as to duration. The right to be heard exists ; it cannot be taken away ; nor can the court deny this right, as was done in Ward’s case, in Virginia, reported in 3 Leigh. But there is also an inherent right in courts of justice to control and restrain the acts of parties and counsel and officers while engaged in the administration of justice before them. The courts must take care not to abuse these rights on the one side nor on the other. There are cases in which the time necessary to a proper and fair elucidation of the matters involved in the prosecution, must be greater than in others. The courts must not, then, arbitrarily cut down the time in all cases to a certain limit. They must exercise proper discretion in such matters, granting longer or shorter time, as the intricacy, mass of matter, nature of offence, and the means or circumstances on which the defence may rest, may seem to require. This court will not countenance any act of the lower courts which may seem to owe its origin to mere caprice or arbitrary power, or wanton oppression. Nor, on the other hand, will we lend a willing ear to support the complaints of obstinate and wilful or capricious opposition to the orders of the courts, made for advancement and completion of the business before them.

The record before us shows first the allowance of thirty minutes, then the reduction of this to fifteen minutes. We can not say that this is an abuse of the discretionary power of the court. There may be a reason for this. The improper waste of the time of the court, or the urgent pressure of important business on the docket, or the improper opposition and behavior of the counsel — unnecessarily troublesome and vexatious-all may have their operation, or the plain and obvious statement of the facts of the case in evidence may not have required longer time, in the opinion of the court, for the defence, than fifteen minutes. At all events, we will not presume the court below did wrong ; and we cannot say that it did not allow the defendant to be heard by his counsel.

This matter of limiting the time to be occupied, in the prosecution of causes before courts of justice, is of very ancient origin. It is found among the Greeks, and was carried thence to Rome. The Greeks had their instruments by which they measured time in the halls of judicature. The clepsydra was used. It was an instrument by which they measured time by means of the flowing of water through it, and so frequent and common was the practice of limiting the time to the speakers by water flowing through these instruments, that the word water was used metaphorically for time. When a speaker was allowed to speak so long, they said he was allowed so much water. The Greeks had an officer in their courts of justice, whose duty it was to watch this measuring of time, and when a certain amount was allotted to a speaker, if there were any documents to be read during his speech, the time the reading of such documents consumed was not to be estimated as any part of what had been allotted to him; therefore, this officer, whose station was near the clepsydra, stopped the water while the documents were being read. The orator did not waste his water in reading documents.

Pliney tells us that he was allowed ten large amphorae of water once, and so important was the cause in which he was engaged, that the judges added four more to the amount. He says he spoke five hours. He tells us, likewise, that he himself used to allow the accused as much water as he wanted.

The tribune of the people, Titus Sabienus, only allowed half an hour to Cicero to speak in defence of Oaius Rabirius, when he was prosecuted for murder. This, too, on an appeal from the judgment of the Duumviri to the people. The orator complained of being cramped by the narrow space of time: for, though it would be nearly enough to make the defence for his client, it would not be enough for preferring the complaints he had a right to bring forward.'’ “ I have spoken the time allowed me,' he said, when about to conclude. And in no part of the monument erected by his genius to its own immortality, will you find a more polished or more brilliant gem than this half hour’s work.

We conclude, therefore, that a quarter of an hour allowed to a modern orator, in a petty case of cutting down timber on the school lands, cannot be considered as an inhibition to be heard in defence of his client. The judgment is affirmed, Judge Leonard concurring.

Scott, Judge.

I do not concur in the opinion of the majority of the court. Our bill of rights declares that, “ in all criminal prosecutions, the accused has the right to be heard by himself and Ais- counsel.” Now it is obvious that this right is worth nothing, if a court, by a rule beforehand, may limit the time during which counsel may speak. The time requisite to make a defence is so dependent on circumstances, that it cannot be ascertained before the defence is begun. The limiting of the lime is assuming by the court a knowledge of all possible grounds on which a defence may be placed, and determining the time necessary to express them. One counsel may give utterance to his thoughts with much more rapidity than another. Counsel may know jurors, and whilst it is only necessary to hint a matter in order to be comprehended by some of them, to convince others it may be necessary to be a little tedious, and to use some repetition. If counsel can be limited by the court to the time given in this case, no member ox the profession would condescend to use it, or if he did, the only use that could be wisely made of it would be to excite the sympathy of the jury for the accused, in being deprived of the right of making a defence — a right which is secured to him by the constitution. No counsel would make the attempt to convince in fifteen minutes a jury of twelve men, in a case in which an argument was necessary. While I deny the power in the court to limit beforehand the duration of the defence to bo made for one accused of crime, I fully admit that courts, in criminal trials, as well as in all others, have a right to control counsel in making defences. They will not suffer the right of speaking to be abused, and the time of the court unnecessarily consumed in arguments which have been sufficiently repeated, or used in any other manner calculated to impair the respect due to the administration of justice. But this control is to be exercised on the circumstances as they transpire, and it is not for man, in his weakness, to declare, before a defence is begun, how long it should be reasonably continued. If a court can limit the time of speaking to fifteen minutes, it can take away the right of making a defence ; for, I repeat it, that no counsel, who had any regard for his reputation, would attempt to make a defence in fifteen minutes, in a case in which it was really necessary to make one. This opinion is not without authority to sustain it. (Commonwealth v. Ward, 3 Leigh, 758.)